Introduction

The treatment of ouster clauses in R (Privacy International) v Investigatory Powers Tribunal has been said to violate parliamentary sovereignty.  This post disagrees.  That assertion, it argues, misapprehends the rule of law as founded upon the sovereignty of ‘Parliament’ by ‘the High Court of Parlyament’ as recognised in the Crown and Parliament Recognition Act 1689.  The separation of the supreme court from the legislature in O’Connell v R, and the creation of the Supreme Court by the Constitutional Reform Act 2005, undo neither the parliamentary character of the Court nor its participation in the sovereignty of Parliament.  This view supports the dicta of Lord Carnwath in Privacy International, with whom Lady Hale and Lord Kerr agreed, that courts may refuse to recognise or enforce ouster clauses.

A Brief Chronology

In the seventeenth century the supreme court of England and Wales was part of ‘Parliament’. …