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Sovereign Therefore Limited: The Unconstitutionality of Ouster Clauses for Errors of Law Under the British Constitution

Author:

Vincent Lafortune

University of Oxford, GB
About Vincent
BCL candidate at the University of Oxford My main interests are public law, administrative law, constitutional law, commercial law
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Abstract

This paper argues that ouster clauses which seek to bar judicial review for errors of law are incompatible with, and thus inadmissible under, the British constitution. That is to say, judicial review for illegality is a constitutional fundamental that not even Parliament is competent to abolish. Two arguments are deployed to support that contention. Firstly, it is argued that a full grasp of the core notion of Parliamentary sovereignty leads to the truism that Parliament itself is disabled from ousting the judicial review jurisdiction of the courts with respect to errors of law; one cannot simultaneously espouse the constitutional principle of Parliamentary sovereignty and accept the constitutionality of such ouster clauses. Secondly, it is argued that this aforementioned limitation to Parliament’s legislative remit logically deduced from the notion of Parliamentary sovereignty—far from being the product of sheer happenstance—is in fact the manifestation of imperatives that necessarily constrain the exercise of legislative power in a democracy.
How to Cite: Lafortune, V., 2023. Sovereign Therefore Limited: The Unconstitutionality of Ouster Clauses for Errors of Law Under the British Constitution. LSE Law Review, 8(3), pp.429–452.
Published on 13 Mar 2023.
Peer Reviewed

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