Philip Murray: Ouster Clause Redux: The Court of Appeal’s Decision in LA (Albania) – UK Constitutional Law Association

Posted November 21st, 2023 in constitutional law, judicial review, legislative drafting, news, parliament by sally

‘In the summer I wrote on this blog about the Administrative Court’s decision in R (Oceana) v Upper Tribunal [2023] EWHC 791 (Admin). Oceana was the first time the new ‘super ouster clause’ contained in section 11A of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’), introduced by section 2 of the Judicial Review and Courts Act 2022, fell for judicial consideration, and it was informative to observe how judges responded to the clause in judicial review. But while Oceana raised an important point of constitutional law, namely, Parliament’s ability to exclude judicial review with sufficiently express statutory language, the underlying case in Oceana was a weak one. It was little surprise, therefore, that Oceana did not fall for reconsideration on appeal. However, Saini J’s judgment in Oceana that Parliament is institutionally competent to exclude judicial review in certain circumstances has now come under further judicial scrutiny by the Court of Appeal in R (LA (Albania)) v Upper Tribunal [2023] EWCA Civ 1337. And so it is time for another blog post, addressing again the important question on the effectiveness of ouster clauses and the potential limits of Parliament’s legislative sovereignty.’

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UK Constitutional Law Association, 21st November 2023