‘Judicial treatment of ouster clauses: time for a new approach?’

Abstract

This thesis aims to assess whether the current judicial approach to ouster clauses in the United Kingdom is fit for purpose, and if not, what aspects should form part of a future approach. After finding the current Anisminic derived approach to be deficient, the rest of the thesis is dedicated to exploring the case for a new approach aided by comparative study of judicial review in Australia, Canada and the United States of America. The approach to ouster clauses proposed by this thesis is multifaceted, reflecting the fact that ouster clauses do not seek to exclude a single type of decision or decisionmakers from judicial review. It is concluded that the extent to which an ouster clause is effective should depend on contextual rule of law based considerations, and on the core notion that Parliament is conceptually limited from fully ousting judicial review.