The new prospective-only quashing order reform proposed by clause 1(1)(29A)(1)(b) of the Judicial Review and Courts Bill 2021 implicates the Rule of Law. That much seems to be a matter of general agreement. But commentators drastically disagree on how it does so. Three contrasting positions on the relationship between prospective quashing and the Rule of Law have emerged: (1) that prospective-only quashing offends the Rule of Law; (2) that the technique enhances judicial flexibility without undermining the Rule of Law; and (3) that prospective-only quashing enhances the Rule of Law.
What explains these divergent positions? It is that there are divergent views over what “the Rule of Law” means. Placing cards on the table, my own allegiance is to position (1): that prospective-only quashing offends the Rule of Law. It seems to me that that position best comports with the orthodox understanding of the common law judicial method, with Albert Venn Dicey’s canonical conception of the Rule of Law, and with persuasive holdings of comparable common law apex courts (in particular, the High Court of Australia and the Supreme Court of the United States).
Jason Varuhas observed during the hearing before the Commons General Committee on the Bill that the Rule of Law “is often invoked without elaboration and as a trump card”. That has certainly been the case in debates over the proposed subsection (1)(b). We must first grasp what one means by the Rule of Law before we can assess whether the novel instrument of prospective-only judicial quashing is compatible with it.
Consider the three positions that have emerged.
Position (1)—the “pro-judicial retrospectivity camp”—maintains that prospective-only judicial decision-making is contrary to the Rule of Law. That is because the nature of judicial decision-making is retrospective: it entails ruling upon what the law was that the parties are now disputing. The doctrine of nullity comports with this position: void government acts are not void only once they are subject to a quashing order. They are void ab initio because a court has found that they are not—and should not have been recognised to be—law. Some commentators on this blog have advanced this position. Lewis Graham expresses the view that “the rule of law would not normally be served, but may be considerably damaged, by delaying access to a remedy, or insulating unlawful measures from challenge”. Tom Hickman QC warns that the use of prospective quashing orders to get around the orthodox doctrine of nullity would, perhaps counterintuitively, “confer considerable powers on judges to re-write the law retrospectively” by empowering judges to treat unlawful acts as lawful. On the orthodox view, courts must not countenance unlawful acts. Lord Mansfield’s proclamation in Sommersett’s case—“Let justice be done though the heavens fall”—remains the lawyer’s duty today. The Rule of Law constrains judges to say what the law is, not what it should be. Judges should not (purport to) exercise a prospective-only quashing power because the very objective of such a power—to allow judges to treat unlawful acts as valid for prior actions and transactions—offends the Rule of Law.
Position (2)—the “pro-judicial flexibility camp”—recognises that prospective quashing orders do engage Rule-of-Law concerns, but maintains that such concerns are, on balance, outweighed by the perceived benefits of increased remedial flexibility. This camp can accommodate different jurisprudential perspectives, ranging from those who think that sometimes the Rule of Law needs to take a backseat to other values (i.e. prospective quashing is a necessary evil), to those who think that judicial remedial creativity simply reprioritises the values underpinning the Rule of Law (i.e. prospective quashing is not necessarily objectionable at all). Jonathan Morgan considers that there are “constitutional risks of over-using the powers to limit the temporal effect of quashing orders”, but that “sometimes there could be good constitutional reasons in favour of such temporal limits”. Likewise, Jason Varuhas suggests that prospective invalidation “gives rise to rule-of-law concerns”—concerns that do not arise, at least to the same degree, with subsection (1)(a)’s suspended quashing power—but that there will be cases in which judges in their discretion should exercise a prospective invalidation power. On this view, the Rule of Law ordinarily demands judicial retrospectivity, but there will be exceptions that make a prospective quashing power acceptable.
Position (3)—the “anti-judicial retrospectivity camp”—opposes the orthodox position by maintaining that it is retrospective judicial decision-making that is contrary to the Rule of Law. The Rule of Law requires legal certainty and predictability. Judicial retrospectivity, it is said, undermines these values. This view is most strenuously advanced by Sir Stephen Laws. In his submission to the Independent Review of Administrative Law, Sir Stephen proceeds on the basis that people assume that “anything of a legislative nature (whether primary or secondary)” is valid and to be relied upon. As such, a court decision holding that some government act is invalid has very serious implications. Such a decision undermines legal certainty and predictability:
119. … Retrospective invalidation of legislation will, in almost all cases, impose injustice and unfairness on those who have reasonably relied on its validity in the past. … It is a form of injustice and unfairness that is wholly incompatible with even the narrowest versions of the concept of the rule of law.
On this view, judgments generally should not retrospectively impugn government acts. Such acts ought to be afforded the status of law until (but not unless) quashed by a court. This conception of the Rule of Law underlay the Government’s proposal to enact a presumption or a requirement that judicial quashing orders should take effect only prospectively. In its Response to the Independent Review of Administrative Law, the Government expressed the view “that legal certainty, and hence the Rule of Law, may be best served by only prospectively invalidating [legislative] provisions”. That suggestion has been pared back in the Bill’s relatively weak presumption that courts should exercise their discretion in favour of non-retrospective relief (subsection (9)).
I have three basic concerns with the positions that favour prospective-only quashing. First, the argument that judicial review decisions should apply only prospectively so as to avoid undermining legal certainty and reasonable reliance interests rests on the questionable premise that such judgments do undermine these interests. I argue in a forthcoming article, (2022) 41(1) CJQ _, that government acts are judicially reviewed by people who do not believe they are valid on the basis that the acts are contrary to other laws on which the claimants do rely. Since it is the courts’ role to say what the law is, certainty and reliance interests are best served by a judgment that upholds the correct position in law. Prospective quashing undermines the interests of those who believe that some government act is invalid and who turn to the courts for relief, by leaving them without (any or adequate) recourse.
In my article, I go further and argue that other values that are put forward in favour of judicial non-retrospectivity—efficiency, dignity, and equality, alongside stability and reliance—can also be flipped on their heads and shown to support rather than undermine the retrospectivity of judge-made law. I present this as a response to the “pro-judicial flexibility camp”: that the technique does not achieve its intended aims. In my view, prospective-only invalidation is not only unjustified but unnecessary, particularly if there is an option to suspend the effects of a quashing order temporarily in order to provide the legislature time to respond, as subsections (1)(a) and (6) envisage.
Secondly, I question the jurisprudential basis for opposing the norm of judicial retrospectivity. Upon what principled foundation does the assertion that retrospective quashing (either sometimes or always) contravenes the Rule of Law rest? It bears a passing resemblance to the Razian idea that laws should be “applied prospectively and not retroactively”. But Joseph Raz’s conception of the Rule of Law is about avoiding arbitrary government—that “Government is by law”. John Gardnerdiscusses how Raz does not view judge-made law through the same Rule-of-Law lens as he views statute law, because “the judge plays a different role from that of a legislature”. A “morally credible” Rule of Law (such as Raz’s) only requires “a ban on retroactive legislation, not a ban on the retroactive change of legal norms” by courts.
What animates the anti-judicial retrospectivity position outlined by Sir Stephen is a concern that courts too readily “intervene in the business of government”, contrary to the doctrine of Parliamentary Sovereignty. Albert Venn Dicey’s jurisprudence on Parliamentary Sovereignty experienced something of a recent renaissance in arguments for Parliament to “take back control”. It is unfortunate, in my view, that Dicey’s jurisprudence on the Rule of Law has not garnered the same attention. Dicey outlined three conceptions of the Rule of Law: (a) that law, not arbitrary power, is supreme; (b) that everyone is equal under law; and (c) that the ordinary law “as defined and enforced by the Courts” governs. In  NZLJ 261, I argue that prospective-only invalidation offends all three conceptions of Dicey’s Rule of Law. That is because (a) prospective-only invalidation allows unlawful executive action to govern past events without remedy, enabling rule by arbitrary power rather than rule by the regular law; (b) prospective-only invalidation gives the Government a remedial shield in litigation that is not available to ordinary people, contrary to the principle of equality under law; and (c) prospective-only invalidation undermines the aspiration that “where there is a right, there is a remedy”, by abolishing the ordinary retrospective remedies for rights-violations. Whose Rule of Law justifies a presumption against the ordinary retrospectivity of judge-made law?
A third concern is that the relevant experiences of other common law jurisdictions have seemingly been overlooked. The claim that “Retrospective invalidation of legislation will, in almost all cases, impose … a form of injustice and unfairness that is wholly incompatible with … the rule of law” disregards the legal systems of comparable countries. Courts in Australia, Canada, and the United States (among many other democratic countries) have long routinely exercised a power to quash legislation with retrospective effect. These countries have the Rule of Law. Dicey himself remarked that “The rule of law is as marked a feature of the United States as of England”, notwithstanding the US courts’ powers of strong judicial review, which were well-recognised at the time Dicey wrote.
Those steering the Judicial Review and Courts Bill through Parliament would do well to take stock of experiences of prospective-only judicial decision-making abroad. What subsection (1)(b) of the Bill proposes is not a novel doctrine (although its statutory form is novel). The doctrine has roots in US case law and scholarship from the heyday of American Legal Realism. It was first addressed by the United States Supreme Court in Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932), from which the term “Sunbursting” was coined to describe prospective-only judgments. In 1960, Beryl Harold Levypredicted that the doctrine could be a “beneficent compromise device” to enable liberal justices to hand down more progressive judge-made law without the anxiety of disturbing reliance interests, while conservative justices could invoke non-retrospectivity as a means to curb the reach of liberal judge-made law. And that is what happened. Huiyi Chen summarises how the Supreme Court of Earl Warren C.J. and of Warren Burger C.J. in the 1960s and 1970s engaged in non-retrospective judicial law-making in both criminal and civil cases, “motivated by the liberal justices’ need to avoid a legal prison break (a retroactive application of the new rules that might acquit many prisoners) and the conservative justices’ desire to engage in ‘damage control’ for new rules they disliked”. Similar policy dynamics seem to be echoed in current discussions on subsection (1)(b) of the Judicial Review and Courts Bill.
The American foray with this novel temporal doctrine did not last long, however. The Supreme Court of William Rehnquist C.J. repudiated the doctrine in criminal appeal cases by 1987 and in civil cases by 1993. As I explain in (2020) 130 Yale LJ 276, the Court could not find a principled justification for the doctrine. And it has not made a comeback.
Nor has prospective-only judicial decision-making been embraced by comparable common law jurisdictions. In New Zealand, the doctrine has been judicially considered but not adopted. In Canada, the Supreme Court has recognised a prospective overruling power, but in practice it is very rarely employed. There is a strong presumption of judicial retrospectivity and courts have found the suspended invalidation power to be a superior instrument of remedial flexibility (arguably, one that is too readily invoked). Meanwhile, the High Court of Australia has recently reaffirmed its rejection of the judicial non-retrospectivity doctrine as “inconsistent with” and “a perversion of judicial power”. In each of these jurisdictions the courts have assessed the doctrine in the context of the common law method. As far as I know, in none of them has a legislature sought to impose on courts a general presumption against ordinary judicial retrospectivity. As a Kiwi lawyer, educated in the United States, having practiced and taught law in England, now teaching at a Canadian law school, I am surprised by the general absence of comparative common law analysis on this monumental proposed reform of judicial power in England and Wales.
In order to understand whether the proposed prospective-only quashing order reform in the Judicial Review and Courts Bill is a good law we must understand what it will do and how it will implicate the Rule of Law. My own view, expressed in my submissions to the Government’s Consultation and to the House of Commons Committee, is that this proposed reform is unnecessary, divisive, misguided policy, inconsistent with the common law method, and contrary to Dicey’s Rule of Law.
Samuel Beswick, Assistant Professor of Law, Peter A. Allard School of Law, The University of British Columbia
(Suggested citation: S. Beswick, ‘Prospective quashing and the rule of law’, U.K. Const. L. Blog (23rd Nov. 2021) (available at https://ukconstitutionallaw.org/))
Click here to view the original post