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Legislation and statutory interpretation.

Module A: Introduction to legislation.

Chapter 5: Temporal extent of legislation.

Legislation after it is made and before commencement
Preparatory things may be done after the legislation is made but before its commencement, for the purposes of making it effective upon commencement.

Commencement
“The question of what ordinary fairness demands of a minister who knows – or believes he knows – what the final text of a new law will contain, when dealing with important interests of people who do not”: R (ZL and VL) v Home Secretary [2003 EWCA Civ 25].

“Where an Act cannot be published before it takes practical effect, the department should seek to disseminate the final text of the relevant sections to those most interested, or their representatives”: Cabinet Office, Guide to Making Legislation (April 2013) at 38.10. See also the “21-day rule” in Office of Public Sector Information, Statutory instrument practice (London: HMSO, 2006) 4th edition at 4.13.2ff.

Expiry of legislation
Expiry happens by: express or implied repeal by another Act, sunset clause, desuetude, obsolescence. Sunset or review clauses are useful in experimental legislation.

Repeal of amending (including repealing) statutes does not revive the original statute.

Prospectivity and retrospectivity
Lex prospicit non respicit; restated in Phillips v Eyre (1870) LR 6 QB 1 at 23.

Backward facing legislation is unfair, is pointless, creates uncertainty, is artificial.

Retroactive
Legislation is retroactive if it looks to the past and has effect in the past. “[The] claims which the Act makes possible will only succeed if it is shown that the exposure to asbestos was caused by the employer’s negligence. Indeed, the Act is conspicuously careful in its draftsmanship. Its effect is restricted to new claims and to claims that have been commenced but not yet determined. It preserves all the other defences that may be open on the law or the facts, other than the single question whether the pleural plaques themselves are actionable. It achieves what it has to achieve. But it does no more than that”: Hope LJ in AXA General Insurance v Lord Advocate [2011 UKSC 46] at 37.

Retrospective legislation and those interfering with existing rights; transitional provisions
Legislation is retrospective if it looks to what happened in the past and has effect in the future. Legislation interferes with existing rights if it is prospective but has a substantial impact upon activity that is currently being carried out. See Re A Solicitor’s Clerk [1957] 3 All ER 617.

The question is whether the retrospective disability is meant as a punishment or as protection of the public. "Assuming that a disqualification order is not a criminal penalty, the Secretary of State’s interpretation does not offend against the presumption against retrospective legislation. That presumption is based on concepts of fairness and legal certainty, which dictate that accrued rights and the legal status of past acts should not be altered by subsequent legislation. But the effect of a disqualification order is entirely prospective, because it only affects future conduct. In such circumstances, a statute does not offend against the presumption against retrospective effect merely because it depends for its future application upon events that may have occurred before it came into force": R v Field [2003 3 All ER 769] at 60, submission affirmed by the Court.

Transitional provisions are designed to ease the transition from an old system to a new system. Compensation may be a remedy for the effects of retrospective legislation.

Criteria to assist in identifying when backwards facing legislation is legitimate
Backwards facing legislation may be legitimate if they change only the procedure or are legislation for the benefit of citizen.

Criminal legislation
Nullem crimen sine lege (no crime without law); nullem poena sine lege (no punishment without law). Exception normally applies to war crimes, genocide and crimes against humanity. See Article 15 of the International Covenant on Civil and Political Rights.

Civil legislation
In the AXA Insurance case, the way of assessing the validity of the backwards facing legislation was whether it infringed upon the right to property under Article 1 of Protocol 1 to the European Convention on Human Rights. Similarly, in Zielinski v France (2001) 31 EHRR 19 the backwards facing legislation was considered with respect to the right to a fair trial under Article 6 of the Convention: "The Court reaffirms that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature – other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute" (at 57).