Which presumption? A critique of the House of Lords' reasoning on retrospectivity and the Human Rights Act (original) (raw)
In this article we argue that the House of Lords recently erred severely by failing to apply the Human Rights Act 1998 retrospectively, and that the appropriate remedy is to deploy the 1966 'Practice Statement'. We describe how the House has made a number of basic mistakes in interpreting the literal meaning of the Act. These errors are partly explained by the court's reliance upon a general presumption that law should not be applied retrospectively. We argue that human rights legislation is a necessary exception to this rule. We maintain this for philosophical reasons, but also contend that s 3(1) of the Human Rights Act reverses the presumption against retrospectivity and requires a new presumption that human rights should be given effect whenever it is possible to do so. This is a vital issue because s 3(1) is one of the most important provisions in the UK constitution.
Sign up for access to the world's latest research.
checkGet notified about relevant papers
checkSave papers to use in your research
checkJoin the discussion with peers
checkTrack your impact
Loading Preview
Sorry, preview is currently unavailable. You can download the paper by clicking the button above.