Examples of the uncertainties in relying upon prospective legislation
Readers will be aware of the inability of certain sections of the media to distinguish between the legal implications of various stages in the development of statutory legislation, from the portrayal of proposals within consultation documents as future legislative requirements, to the frequent misrepresentation of EU legislation and ECHR judgements. However, this can be a problem even to lawyers and this post describes two recent examples, one (legally) trivial and the other more complex, in which invalid assumptions have been made regarding the implications of prospective legislation.
The McLellan Report
Our report on the publication of the McLellan report on child abuse in the Roman Catholic Church in Scotland indicated that some of the abuse survivors expressed criticism of the Report and the Archbishop’s apology; the Express stated that Frank Docherty, the founder of Incas, the In Care Abuse Survivors organization had suggested that the church’s apology had only come about due to the Apologies (Scotland) Bill, “which means saying sorry will no longer amount to an admission of legal liability”.
This statement is problematic both to Incas and the Church: reliance upon an incorrect assumption such as this is counter-productive to an organization’s pursuance of its otherwise valid claims; and it may prove problematic to the Church if the media and others take it at face value, and it becomes an urban myth that is difficult to dispel.
The Apologies (Scotland) Bill is a Member’s Bill of the Scottish Parliament introduced by Margaret Mitchell MSP on 3 March 2015, on which the Memorandum by the Scottish Government to the Justice Committee states, , that although it “supports the aim of the proposal … Given the concerns with the proposed legislation, the Scottish Government maintain a neutral position on this legislation at this time.” It seems, therefore, that even were it to be incorporated within the legislation, which is far from certain, it is unlikely that it would be in its present form. However, were the Bill as presented to be made law: it would be applicable to civil, not criminal proceedings, [clause 2]; there would be no retrospective effect to an apology or legal proceedings pre-dating the resulting Act, [clause 4]; its substantive provisions would not come into effect until end of the period of 6 months beginning with the day of Royal Assent, [clause 5].
Nevertheless, the development of “apologies legislation” such as the Scottish Bill or the provisions of s2 Compensation Act 2006 is an interesting concept, which deserves further consideration.
These were described by the Court of Arches as “highly unusual proceedings both in respect of the subject matter of the application and the procedures by which it was determined.” One component of the appeal concerned the assumption of the Chancellor in In the Matter of the churchyard of Christ Church Spitalfields  London Const Ct, Seed Ch. that a faculty under the new s.18A in the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, (CCM) could retrospectively legitimize the building erected by the First Respondent on a churchyard/disused burial ground immediately adjacent and to the south of Christ Church, Spitalfields.
Although the Dean did not specifically give leave to appeal in relation to this particular ruling, [referred to as ruling ], the judgement of the Court of Arches noted the matter has been fully argued without objection from the Respondents and Interested Parties, stating:
“[63.] … Even if it be assumed (as the chancellor appears to have done) that a faculty under the new s.18A in the CCM could retrospectively legitimize the Building, the chancellor’s ruling  cannot, in our view, stand for three reasons.
First, and most fundamentally, as at the date of the judgment the draft Measure had not completed its progress through Parliament, nor received the Royal Assent. True, as the chancellor stated, it had been laid before the Ecclesiastical Committee of Parliament, but the committee had not yet reported as to its expediency.
Second, even assuming its enactment, the chancellor had no means of knowing when it would be brought into force.
Third, the proposed power under s18A was a discretionary one, and, without a full investigation of the facts (which would be inappropriate at the stage of strike out or summary judgment, and which had not in any event taken place), the chancellor could not simply assume that it made the grant of a faculty so inevitable that he could on this ground alone summarily reject the application for a restoration order.”
and continued, [emphasis in original]:
“[64.] … Of course we now know that the [Care of Churches and Ecclesiastical Jurisdiction (Amendment) Measure 2015] did receive the Royal Assent, and that the new s.18A did come into force on 1 April 2015, before the hearing of this appeal. But that later knowledge cannot retrospectively justify the way the chancellor approached the matter; and in any event there are a whole range of issues relating to the exercise of discretion under both s.13(5) and s.18A of the CCM which remain outstanding and undetermined.”
Further to the above considerations, the granting of Royal Assent and the enactment of the relevant part of an Act are nevertheless no guarantee that the government will act upon the provisions; the Enterprise and Regulatory Reform Act 2013 was granted Royal Assent on 25 April 2013, and those relating to caste discrimination in section 97 came into force two months afterwards, [section 103(2)]. However, as we noted in Caste discrimination legislation – a (long) timeline, in July this year the former Bishop of Oxford, Lord Harries of Pentregarth, initiated a further debate with the question “To ask Her Majesty’s Government when they intend to implement the amendments to Section 9 of the Equality Act 2010 [introduced through section 97 of the 2013 Act] that requires the introduction of secondary legislation to incorporate caste as a protected characteristic,” HL Deb 15 July 2015 Vol 764(32) c 572]. Whilst Baroness Williams of Trafford, Parliamentary Under-Secretary of State, DCLG, assured the house repeatedly that Government was “actively considering” the matter, her closing comments suggested an unwillingness to act, [15 July 2015 Col 575].