Judicial Review – ousters
JUDICIAL REVIEW – OUSTERS
parliament will attempt to oust the jurisdiction of the courts so the principles of judicial
review and the institutions of judicial review would not be made available, but judges will
often find a way around these ouster clauses
Judges will pretend that they didn’t know this is not what parliament intended which
shows their resistance to parliament regarding judicial review
The courts are willing to go out their way to protect judicial review
ISSUE: The issue is whether the courts will go to great lengths to ensure they remain in a
position to administer the principles of judicial review.
ISSUE WITH OUSTERS Courts don’t just apply and make the rules of judicial review,
they ensure they remain in a position to do this by judges
pretending they didn’t know parliament intended to oust
them
AUTHORITY WHICH Anisnimic
DEMONSTRATES THIS
JACKSON DICTA WHICH “In exceptional circumstances involving an attempt to abolish
QUESTIONS judicial review or the ordinary role of the courts, the …
PARLIAMENTARY Supreme Court may have to consider whether this is a
SOVEREIGNTY constitutional fundamental which even a sovereign
Parliament…cannot abolish”
(Lord Steyn)
Shows how the importance and how serious judicial
review is taken
Judges willing to go against constitutional orthodoxy
as they believe that judicial review is fundamental
HIGHLY CONTESTED Some constitutional lawyers think that parliament cannot
CONCEPT OF interfere with judicial review
PARLIAMENTARY
SOVEREIGNTY However, others think this would mess up parliamentary
sovereignty and that as parliamentary sovereignty is a true,
fundamental principle they must have the power to oust
judicial review
THEN APPLY TO FACTS OF PROBLEM QUESTION!!!
JUDICIAL REVIEW – OUSTERS
parliament will attempt to oust the jurisdiction of the courts so the principles of judicial
review and the institutions of judicial review would not be made available, but judges will
often find a way around these ouster clauses
Judges will pretend that they didn’t know this is not what parliament intended which
shows their resistance to parliament regarding judicial review
The courts are willing to go out their way to protect judicial review
ISSUE: The issue is whether the courts will go to great lengths to ensure they remain in a
position to administer the principles of judicial review.
ISSUE WITH OUSTERS Courts don’t just apply and make the rules of judicial review,
they ensure they remain in a position to do this by judges
pretending they didn’t know parliament intended to oust
them
AUTHORITY WHICH Anisnimic
DEMONSTRATES THIS
JACKSON DICTA WHICH “In exceptional circumstances involving an attempt to abolish
QUESTIONS judicial review or the ordinary role of the courts, the …
PARLIAMENTARY Supreme Court may have to consider whether this is a
SOVEREIGNTY constitutional fundamental which even a sovereign
Parliament…cannot abolish”
(Lord Steyn)
Shows how the importance and how serious judicial
review is taken
Judges willing to go against constitutional orthodoxy
as they believe that judicial review is fundamental
HIGHLY CONTESTED Some constitutional lawyers think that parliament cannot
CONCEPT OF interfere with judicial review
PARLIAMENTARY
SOVEREIGNTY However, others think this would mess up parliamentary
sovereignty and that as parliamentary sovereignty is a true,
fundamental principle they must have the power to oust
judicial review
THEN APPLY TO FACTS OF PROBLEM QUESTION!!!
