This is a single section from Chapter 12. Read the full chapter here.

Does the new legislation relate to matters that are the subject of prospective court decisions or current litigation?

Legislation should not deprive individuals of their right to benefit from judgments obtained in proceedings brought under earlier law or to continue proceedings asserting rights and duties under that law.

Parliament may wish to amend the law in light of a judgment given in court proceedings. Examples would include cases where a court has interpreted a provision in legislation in a way that departs from previous understandings, or where a particular outcome has been reached in litigation (that the striking of local authority rates, say, was unlawful and the resulting rate demands invalid) and Parliament wishes to countermand it. Parliament may also wish (for the same reasons) to amend the law in light of the anticipated outcome of a court proceeding that is still in progress.

The starting point is that Parliament is entitled and empowered to act in this way. Parliament may make and amend any law. That includes altering the law declared in completed court cases, or by amending or otherwise clarifying the law that is likely to arise in pending cases. The mere fact that litigation is on foot or has been concluded does not put the law at issue in a case beyond the reach of legislation. Three important considerations apply, however, to legislation of this type.

The first consideration is the general point made above. All legislation, ordinarily, is prospective. The default setting is that it applies from the date of its enactment and not to events that took place before that date. But there may be good reasons for departing from this principle. For example, the consequences of a particular judgment reached by a court in litigation might be seen by Parliament as contrary to an important public interest.

The second important consideration is the strong convention, arising out of the separation of powers and the principle of comity, that parliamentary legislation should not generally interfere with the judicial process in particular cases before the courts. This second consideration ordinarily means that, even when there are good reasons for a law to apply with retrospective effect and alter the law as determined by a court, it ought not to apply to the particular litigants so as to deprive them the benefits of their victory. In such cases, a saving provision for the actual litigants is appropriate. Attention should then be paid to the details of the saving provision. For example, the legislation might be expressed so as to exempt (from the retrospective effect of the legislation) the actual litigants in a named case or, say, all those who have filed proceedings in court on or before a named date. That date might be the day of introduction of the Bill into Parliament, rather than the date of enactment, since introduction of the Bill will serve as notice of the proposed legislative change.

The third important consideration is the converse of the second. In some situations, there may be good reasons why a law ought to be both retrospective and apply even to the litigants in a completed or pending case. That would be so if the policy reasons for enacting retrospective legislation in the first place would be undermined by leaving intact the litigants’ victory or potential victory. Cases of this type are likely to be rare.

In all cases, if legislation is being considered to overturn a court decision, or to alter the law at issue in existing proceedings, Crown Law should be consulted. Such legislation needs to be justified as being in the public interest and impairing the rights of litigants no more than is reasonably necessary to serve that interest.

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