Notwithstanding clause

For the clause in the Canadian Charter of Rights and Freedoms, see Section 33 of the Canadian Charter of Rights and Freedoms.

A notwithstanding clause (Lat: Non Obstante) is a provision in legislation that allows a law to operate despite certain other legal rules, rights, or principles that might otherwise conflict with it. Such clauses are used to assert legislative supremacy and to prevent courts from invalidating or limiting the effect of the statute based on conflicting laws or rights.

Overview

In common law jurisdictions, a notwithstanding clause typically uses language such as "notwithstanding any other provision of this Act" or "notwithstanding any law to the contrary". It signals a clear legislative intent that the provision should take precedence over any inconsistent statutory, common law, or constitutional provisions.

Purpose

The clause serves to:

• affirm the priority of the new law over existing laws or rights;
• preempt judicial review or restrictive interpretation; and
• clarify legislative intent when overriding entrenched rules or doctrines.

Use

In some jurisdictions, notwithstanding clauses have been used to override certain constitutional rights where allowed by law, for example Section 33 of the Canadian Charter of Rights and Freedoms which allows the charter to be overridden on a time limited basis by provincial legislatures. It can also be used to ensure that statutory provisions prevail over common law principles such as due process if there is a clash, with Section 1983 of the Ku Klux Klan Act

Within contract law a notwithstanding clause can exclude application of default rules in contracts, clarifying that a certain provision applies even if other parts of the agreement conflict and acting as a legal "trump card” to prioritize specific over general terms.

Examples

• Supremacy clause
• United Kingdom Internal Market Act 2020

See also

• Parliamentary sovereignty
• Derogation