Retrospectivity and the Human Rights Act 1998

Abstract

The purpose of this paper is to examine their Lordships’ interpretation in Lambert [2001] UKHL 37, [2002] 2 AC 69, HL and in Kansal (No.2) [2001] UKHL 62, [2002] 2 AC 545, HL of the ‘retrospectivity provision’ of the Human Rights Act 1998, section 22(4), and the extent to which their analysis accords with Parliament’s intentions. Key to an understanding of these decisions is the interrelationship between sections 7 and 22(4) of the 1998 Act. I will consider their Lordships’ interpretation of this interrelationship and suggest that it was overly influenced by policy concerns: a fear of uncertainty in the law and of a flood of appeals if the Act were allowed to operate retrospectively. It will be argued that as a consequence of these misplaced concerns and a misunderstanding of the significance of the Act their Lordships erred in their analysis of section 22(4), which does not accord with Parliament’s intentions.