18.6 Retrospective Legislation From “The Rule Of Law” by LJM Cooray.

Laws should apply prospectively and not retrospectively. A person should never be made to suffer in law (criminal or civil) for an act which was not unlawful when he committed it. Retrospective legislation destroys the certainty of law, is arbitrary and is vindictive, (being invariably directed against identifiable persons or groups). Such laws undermine many characteristics of the rule of law.

The Oxford Dictionary of Law defines retrospective or retroactive legislation as “legislation that operates on matters taking place before its enactment, e.g. by penalising conduct that was lawful when it occurred. “ It goes on to say that “there is a presumption that statutes are not intended to have retroactive effect unless they merely change legal procedure.”

An exception, rather than the rule.
As a rule, without clear words to the contrary, statutes do not apply to the past. They apply to a future state or circumstance.

Balancing public interests.
When asked to outline the Government’s position on introducing retrospective legislation, former Solicitor General, Harriet Harman, replied that the State would have to consider whether the general public interest in the law not being changed retrospectively may be outweighed by any competing public interest.

Examples of retrospective legislation.

Where legislation has been applied retrospectively it has often been to validate activities which have no statutory basis, or to correct practices which have been found to be illegal. That is, the changes are clarifying a legal position or putting right an error.

about through retrospective legislation.
It is rare for retrospective legislation to lead to criminal prosecutions against individuals for activities they had been involved in that had not been covered by the existing laws at the time those activities were carried out.

One example of legislation to create retrospective criminal liability was the War Crimes Act 1991. This meant that, provided they were British citizens or UK residents from 1990 on-wards, individuals could be prosecuted for war crimes carried out in Germany (or occupied territories), during the Second World War, regardless of their nationality at that time.

Legal back-up.
Sometimes, the government realises in hindsight that professionals who have been acting lawfully within the spirit of the law, have been inadvertently breaking the law because of a flaw in the wording of the legislation. In some circumstances the consequences are so insignificant as to be ignored. However, in some cases where actions carried out by professionals in good faith and within the spirit of the law have left them vulnerable to potential prosecution by others – where people have been sectioned by mental health professionals for example – the laws were altered to give the professionals the reassurance they needed that their unintentional offences were not going to haunt them at a later date.

Tax legislation.
We have all heard cases of where the super-rich have acted within the law in their tax affairs while clearly not acting in the spirit of the law, in regard to morals and ethics, by using aggressive tax evasion tactics. Retrospective tax legislation was put in place not too long ago to deal with one such specific tax avoidance technique. Appeals were made to stop the legislation but were successfully argued against by the government.

Those interested in making a contribution to the idea that retrospectivity in respect of the application of legislation poses so grave a threat to the rule of law, please add your voices for inclusion on the comments below.

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