ABSTRACT

This chapter explains the origin and justification for the presumption against retrospectivity in legislation. There is one fundamental concept, but different terminology used in the United Kingdom, European Union, United States and Canada can lead to confusion. Retrospectivity is artificial, deeming a thing to be what it was not. Artificiality and make-believe are generally repugnant to law as the servant of human welfare. It is worth considering whether there is any practical difference between the terms 'retrospectivity' and 'retroactivity' in the light of the use of both terms in academic literature and judicial citation. Charting a course through retrospectivity, retroactivity and prospectivity in the drafting and interpretation of legislation is quite a daunting challenge. The final evaluation emphasises the concept of fairness as the key to the interpretation of legislation when determining whether retrospective effect was intended and describes the best practice of drafters.