My dissertation sought to analyse Mark Elliott’s interpretation of ouster clauses as a “theatre of institutional engagement”, and to judge to what extent the relations between the Legislature, the Executive, and the judiciary either demonstrate or disprove this interpretation. I utilised various constitutional principles such as the rule of law, Parliamentary sovereignty, and the separation of powers, and analysed if the treatment of the institutions towards these principles was sustainable, and what the subsequent impact on ouster clauses was. Lastly, I also looked towards various theories of adjudication, such as the modified ultra vires theory, and common law constitutionalism, and analysed how these theories utilised the various constitutional principles. Ultimately, this demonstrates the increasing confidence of the judiciary in disapplying ouster clauses, through judicial tools such as the rule of law, and the increasing agitation of the Executive with this approach, as seen in the reform proposals of the Independent Review of Administrative Law (IRAL).

After defining an ouster clause for the sake of the investigation, my dissertation began by exploring the case law that surrounds ouster clauses, to better inform the debate and to demonstrate the changing trends in the institutional approaches to ouster clauses. This revealed some interesting interpretations. For instance, the majority’s approach to disapplying ouster clauses in Anisminic Ltd v Foreign Compensation Commission (Anisminic) relied on applying interpretative methods when construing the ouster clause in order to disapply it. This is contrasted with more recent case law where the court, instead of relying on interpretation, have utilised the rule of law and other constitutional principles to disapply ouster clauses. A prevalent example of this can be seen in the majority’s use of the rule of law in R (on the application of Privacy International) v Investigatory Power Tribunal (Privacy International). This demonstrated an interesting trend, that the courts are becoming more inclined to disapply ouster clauses according to their own lights, rather than utilising legislative intent and constructive interpretation of the ouster clauses.

Once the background of ouster clauses had been dealt with. I then moved on to discuss the academic debate surrounding ouster clauses, and how the various theories of adjudication dealt with the constitutional principles in play in ouster clauses. For instance, the modified ultra vires theory’s positive treatment of a traditional, absolute version of Parliamentary Sovereignty allowed the theory to sit closely to the legislative intent focused method of disapplying ouster clauses demonstrated in Anisminic.

Alternatively, the two versions of common law constitutionalism I analysed, Laws’ conception and Allan’s interpretative method, both took a different approach. For example, Laws championed the court’s superior moral position in the constitution, arguing that they, by virtue of this position, could supersede the Legislature if necessary. A claim I found to be lacking when compared to his adherence to an absolute interpretation of Parliamentary sovereignty. On the other hand, Allan’s acceptance of a more limited version of sovereignty better allows ouster clauses to be viewed as Elliott’s microcosm of the wider constitution. By limiting the Legislature in this way, this theory better sits with the modern case law on ouster clauses and constitutionalism, such as Privacy International and R(Jackson) v Attorney General (Jackson).

Overall, after analysing how successful the three theories of adjudication are at providing an insight into ouster clauses being utilised as a microcosm of the wider constitution, I began to look towards

the wider trend this demonstrates. I argued that earlier judicial methods of disapplying ouster clauses, such as the approach in Anisminic, of strictly interpreting legislative intent, are now being replaced by the judiciary utilising the rule of law to disapply ouster clauses by their own lights, as demonstrated in Privacy International. This trend is mirrored by the Executive’s increased agitation at a more outwardly interventionist judiciary, as evidenced by the wider limitations on justiciability seen in IRAL.

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