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Prospective Overruling Unravelled, Samuel Beswick
Prospective Overruling Unravelled, Samuel Beswick
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Judges have a dual role: they decide cases and they determine the law. These functions are conventionally understood to be intertwined: adjudication leads to case law, and disputes over judge-made laws lead to adjudication. Because judgments involve the resolution of past disputes, judge-made law is retrospective. The retrospective nature of judicial law-making can seem to work an injustice in hard cases. It appears unfair and inefficient for novel judicial decisions to apply to conduct occurring prior to the date judgment is handed down. A proposed solution is to separate the law-making and adjudicatory functions of courts. This is the technique …
Submission To House Of Commons General Committee On Judicial Review And Courts Bill 152 2021-22 (Prospective Quashing Orders), Samuel Beswick
Submission To House Of Commons General Committee On Judicial Review And Courts Bill 152 2021-22 (Prospective Quashing Orders), Samuel Beswick
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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 …
Submission To The Ministry Of Justice On Judicial Review: Proposals For Reform – ‘Prospective Invalidation/Overruling’, Samuel Beswick
Submission To The Ministry Of Justice On Judicial Review: Proposals For Reform – ‘Prospective Invalidation/Overruling’, Samuel Beswick
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The Government Response to the Independent Review of Administrative Law proposes to provide judges a discretionary power to grant prospective-only remedies in judicial review proceedings. It further proposes to legislate a presumption or a requirement of prospective-only remedies when statutory instruments are quashed. The Government’s Report relies on arguments made in Sir Stephen Laws QC’s IRAL Submission advocating for prospective-only judicial remedies. My submission responds to the content of both documents.
The Government should abandon its proposal to legislate in favour of Prospective Invalidation in the judicial review context (and in any other context) because:
a. Prospective Invalidation violates the …