Ouster Clauses and the Common Law: a Historical Reappraisal

Abstract

This article traces the development of English administrative law's approach to ouster clauses, re-assessing the idea that ouster clauses have always been treated by the courts as so constitutionally repugnant that they are to be given the narrowest of interpretations. We show how the idea of common-law antagonism to ouster clauses is fairly recent, influenced especially by the writings of Sir William Wade and his interpretation of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. While some later decisions of the House of Lords and Supreme Court, most especially R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, have perpetuated the idea of constitutional repugnancy, closer attention to the common law's history allows for a more nuanced understanding of the courts' attitude to statutory exclusions of review. It is in this context that recent cases on ouster clauses can be seen as consonant with administrative law's traditionally deferential approach.