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Nehushtan, Y and Davidson, M (2018) RETROSPECTIVE RULE MAKING AND THE RULE OF LAW: BETWEEN FAIRNESS, MORALITY AND CONSTITUTIONALITY. INDIAN JOURNAL OF CONSTITUTIONAL & ADMINISTRATIVE LAW, 2. 27 - 43.

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Abstract

In this note it is submitted that there are two types of retrospective rule making (RRM): RRM in the strong sense and RRM in the weak sense. In the former we have a rule that changes the legal status or legal consequences of an act that was committed before the rule was created; or a rule that changes the legal status or legal consequences of a state of affairs that existed (and ceased to exist) before the rule was created. This is the common perception of RRM. In the latter we have a rule that changes the legal status or legal consequences of an act that has started before the rule was created, yet this is an ongoing act that is still being committed in the present and continues into the future; or a rule that changes the legal status or legal consequences of a state of affairs that existed before the rule was created – and continues to exist after the rule was created. Both types of RRM can be unfair, immoral or illegal. The cases of the rules governing non-EU immigration to the UK and the rules governing student loans in the UK are used as text-cases that exemplify the differences between the different types of RRM. The note concludes that (a) the changes that were made during the last 3 years to the immigration rules that apply to non-EU immigrants have constantly been retrospective in nature; (b) these changes are in clear violation of the rule of law; and (c) some of these changes are unfair, while others are immoral and/or illegal. It is also argued that the changes that were made in 2015 to the rules that apply to student loans are also retrospective; that some of them are either unfair or immoral – but none of them is illegal.

Item Type:	Article
Uncontrolled Keywords:	law
Subjects:	K Law > K Law (General)
Divisions:	Faculty of Humanities and Social Sciences > School of Law
Depositing User:	Symplectic
Date Deposited:	16 Apr 2018 08:07
Last Modified:	16 Apr 2018 08:07
URI:	http://eprints.keele.ac.uk/id/eprint/4754

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