Ouster Clauses and Tension in the Rule of Law

Parliamentary sovereignty is one of the most fundamental rules of the UK constitution. It holds that Parliament can enact any law whatsoever and the courts may not invalidate an Act of Parliament, or any part of it, or rule in a way that runs contrary to an Act of Parliament. Commitment to the rule of law is another fundamental of the UK constitution. This requires, inter alia, Government bodies to act lawfully and that the courts should be able to rule on the legality of Government acts. Occasionally – and increasingly more often – Parliament enacts legislation containing a clause, known as an ouster clause, which seeks to exclude the courts’ jurisdiction over an element of Government activity. The courts commonly decide that such clauses do not exclude their jurisdiction. Wade and Forsyth describe this as a ‘total disobedience to Parliament’. This paper will explore how ouster clauses expose tensions between parliamentary sovereignty and the rule of law because, if Parliament can insulate Government bodies from judicial oversight, this is contrary to the requirement of the rule of law that the courts should be able to rule on the legality of Government acts. The paper will explore how the courts treatment of ouster clause reveals tension within the rule of law: by ignoring ouster clauses, the courts are ignoring a legal rule – that their jurisdiction should be excluded – but they’re doing this to uphold the principle that Government bodies shouldn’t be immune from supervision by the courts