The constitutionally appropriate judicial response to ouster clauses — that is, statutory provisions that preclude, or appear to preclude, such things as judicial review of administrative action — is an issue that is as vexed as it is fascinating. Certainly, in a UK context, such provisions throw into sharp relief questions about the essential nature of the unwritten constitutional order: in particular, about the place within it of parliamentary sovereignty, and about that principle’s relationship with other constitutional fundamentals, such as the rule of law and the separation of powers. Such questions have occupied courts in the UK recently in the context of the Privacy International litigation.
In a new paper, which will form part of an edited collection to be published later this year, I examine the way in which courts in the UK interpret both ouster clauses and other provisions that may appear to inhibit or preclude the performance of the judicial, including the interpretive, function. Examining such questions supplies a valuable opportunity to consider how the UK’s uncodified constitutional system works, and how judicial understandings of that system — and of the curial role within it — have developed over time. Ultimately, the question arises whether judicial construction of ouster clauses is, or can be, so strained as to amount, in substance, to something more than just interpretation. Such an analysis is in some senses a tempting one, given that some judicial interpretations of preclusive provisions have (or at least might be said to have) an unreal, ‘through the looking glass’ quality that takes us into a realm in which statutory language is taken to mean almost the precise opposite of what it would generally be taken to mean. Indeed, as Lord Phillips has frankly admitted, in this interpretive twilight zone judges might end up assigning to statutory provisions meanings that they ‘cannot bear’.
This, in turn, raises an underlying, indeed fundamental, question about about the contemporary viability of seeking to understand the constitution through the prism of legislative supremacy, given that one way of understanding judicial constructions of ouster and similar clauses is in terms of curial prioritisation of constitutional values and principles that stand in tension with — and might, on this view, be understood to qualify — the notion of parliamentary sovereignty. In the paper, however, I argue that the case law, and the broader set of institutional interactions of which it forms a part, does not provide any definitive answer to such questions, and that the imperative of avoiding constitutional crisis renders such uncertainty a good rather than a bad thing. In this sense, the notion of constructive ambiguity might be said to play a pivotal role in the operation of a constitutional system in which certain fundamental questions are peculiarly resistant to definitive resolution. And, I argue, this obscure but essential dimension of the constitution is illuminated particularly brightly by statutory preclusive provisions and judicial responses to them.
A pre-publication version of the paper can be downloaded here. It will be published in due course in Chris Hunt, Lorne Neudorf and Micah Rankin, Legislating Statutory Interpretation: Perspectives from the Common Law World (Carswell, 2018).