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Comment by simonh | Hacker News Reader

Ansiminic (1969) is really interesting.

Section 4(4) of the Foreign Compensation Act 1950 stated: “The determination by the commission of any application made to them under this Act shall not be called into question in any court of law”

However the House of Lords determined that the ouster clause exempting the determination from legal review did not apply, as there was no valid determination in the first place.

So essentially if the tribunal were to make a determination consistent with the law then yes that wouldn't be subject to judicial review, but if they make an error of law then their determination is not valid and therefore is subject to review. Take that, parliamentary overreach!

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This has led to ever more elaborate ouster clauses eg amending the wording to something like "determination or purported determination". It's been an ongoing game of legal sophistry. It's quite amusing really.

This is a recent attempt (subsequently dropped I think as the politics moved on): https://ukhumanrightsblog.com/2020/10/15/the-uk-internal-mar...

Even broader is the one in the drafted repeal of the Fixed-Term Parliaments Act, the scope of (b) being particularly worrying - what exactly counts a related purported decision? 'A court of law may not question— (a) the exercise or purported exercise of the powers referred to in section 2,(b) any decision or purported decision relating to those powers, or (c) the limits or extent of those powers.'

My take is that this means the courts may not question any legal exercise of those powers sure, but if the exercise of the powers is found to be contrary to law then it is void and subject to judicial review. And that’s fine, there shouldn’t be any way to bypass judicial review.

Perhaps but the mother of all ouster clauses still survives and is likely to be effective (and should be, in my view): the section of the 1689 Bill of Rights which reads "That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament."

Yes!

When I see US jurisprudence getting tied up in knots about whether given rules 'are jurisdictional' or 'are merely mandatory' I can really see the benefit of the decision the HoL took in Anisminic. And it does permanently prevent flagrant abuse of judicial power by lower court judges. But the legal fiction of parliamentary sovereignty does feel a little more fictional when you read that case.

(Of course, they were careful to make clear that Parliament was, in fact, still sovereign, and given a sufficiently expressed will, etc. etc. But in practice...)

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