Response or Comment
non-retrospective, retroactive, judicial method, stare decisis, jurisprudence, Independent Review of Administrative Law, IRAL, mistake of law, declaratory theory, limitations, laches, suspended declaration, judicial dialogue, judicial activism, prospective overruling, judicial law-making
I disagree with the proposal in the Judicial Review and Courts Bill, clause 1(1)(29A)(1)(b), to create prospective-only remedies in judicial review, because:
a. Prospective Quashing violates Professor A.V. Dicey’s canonical three meanings of the Rule of Law.
b. The premise of Subsection (1)(b), ‘that legal certainty, and hence the Rule of Law, may be best served by only prospectively invalidating’ impugned acts, is contradicted by the leading mainstream theories of adjudication in the common law world.
c. Prospective Quashing draws judges into making policy and encourages judicial activism.
d. Prospective Quashing is inconsistent with the English common law judicial method and the declaratory theory of adjudication that underpins common law reasoning.
e. Prospective Quashing is doctrinally unprincipled and has been denounced by prominent apex courts around the common law world.
f. Prospective Quashing is unnecessary and has been rejected by scholars who have analysed the doctrine in England.
Regarding the specific provisions of Clause 1, I favour removing subsections (1)(b) and (4) entirely; in any event, removing subsection (9) so as to leave the exercise of this new power to the discretion of the judge having regard to the context of each case.
Samuel Beswick, "Submission to House of Commons General Committee on Judicial Review and Courts Bill 152 2021-22 (Prospective Quashing Orders)" Comments for Commons General Committee, House of Commons, Parliament of the United Kingdom (November 3, 2021).