Submission to the Ministry of Justice on Judicial Review: Proposals for Reform – ‘Prospective Invalidation/Overruling’
Judicial Review Reform Consultation, Ministry of Justice, United Kingdom, 2021
14 Pages Posted: 5 May 2021
Date Written: April 28, 2021
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 rule of law as propounded by Professor Albert Venn Dicey in his seminal treatise on The Law of the Constitution.
b. Prospective Invalidation is inconsistent with the English common law judicial method and the declaratory theory of adjudication that underpins common law reasoning.
c. Prospective Invalidation effects bad policy. The Government’s interest in this doctrine is surprising given that the Prospective Invalidation doctrine is well-recognised to be the ultimate instrument of ‘judicial activism’. The doctrine was developed by jurists who favour judicial activism and who sought to implement radical judicial changes in the law untethered from the usual retrospective effects of judicial decision-making. It leads to more uncertainty and instability in the law, not less.
d. Prospective Invalidation has been denounced by prominent apex courts around the common law world, even while it has increasingly found acceptance with civilian and European courts. The Government’s proposal would isolate the courts of the United Kingdom from comparable common law jurisdictions. It would push UK judges to adopt reasoning and remedies more commonly employed by European courts.
e. Prospective Invalidation is unnecessary and has been rejected by scholars who have analysed the doctrine in England.
Instead of Prospective Invalidation, if the Government considers that the burdens of a particular judgment against it are too great to bear, the preferable alternative is for the Government to rely on remedial retroactive legislation in response.
Instead of Prospective Invalidation, there may be merit in providing judges a discretion to quash government acts with suspended effect. Suspended Quashing Orders should be discretionary, not presumptive or mandatory. Any legislation in favour of Suspended Quashing Orders should clarify that it is only the remedy that is suspended, not the reasons underlying the order.
Finally, I agree with the proposals regarding the desirability of reforming the time limits for bringing a judicial review claim.
Keywords: 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
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