That has certainly been the case in debates over the proposed subsection (1)(b). 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”. 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). Placing cards on the table, my own allegiance is to position (1): that prospective-only quashing offends the Rule of Law. What explains these divergent positions? It is that there are divergent views over what “the Rule of Law” means. 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. But commentators drastically disagree on how it does so. That much seems to be a matter of general agreement. 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.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |