Submission the Ministry of Justice on Human Rights Act Reform Consultation — Q16: Should the Proposal for Prospective Quashing Orders Be Extended to Proceedings under the Proposed Bill of Rights?

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I oppose the proposal in Question 16 of the Human Rights Act Reform Consultation to extend prospective quashing orders to proceedings under human rights law. I express no view here on suspended quashing orders, although I would urge the Government to consider experiences and critiques of this doctrine in comparable common law jurisdictions such as Canada before enacting this novel reform.I have previously expressed opposition to prospective quashing orders in my submissions to the Judicial Review Reform Consultation and the House of Commons General Committee on the Judicial Review and Courts Bill 152, as well as in a contribution on the UK Constitutional Law Blog. My reasons, in summary, are as follows:a. Prospective Quashing violates Professor A.V. Dicey’s canonical three meanings of the Rule of Law.b. The premise of prospective quashing, ‘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.The Government should abandon its proposals to legislate for prospective quashing orders in the human rights and judicial review contexts.If the Government does proceed with introducing prospective quashing orders into English law, it should not be in the form currently presented in clause 1 of the Judicial Review and Courts Bill 152. Regarding the specific provisions of Clause 1, subsection (9) should not be part of the law. The exercise of this extraordinary power should be left to the discretion of the judge having regard to the context of each case.

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Publication statusPublished - Jan 1 2022

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