Bill: Passed Cases and Controversies Act

[multiman155]

Author: Multi Man, MP
Sponsor: N/A
Type: Act of Parliament

A
BILL
TO
PREVENT PRE-EMPTIVE JUDICIAL RULINGS ON QUESTIONS OF LAW
​

Preamble:
Parties to a case should be able to present briefings in support of their interpretations of the law and ought be entitled to an unbiased hearing when their cases come before the courts. This means that questions of law should not be judged except when necessary, such as due to interpretation necessary to resolve prior cases or controversies as they arise within judicial proceedings. At present, however, statute permits certain judicial officers to pre-judge certain questions of law outside of the context of an active case or controversy, undermining this principle. This is permitted via the Judicial Guidance Act, which grants the Supreme Court the power to publish responses "general inquiries about the law" by issuing so-called "judicial guidance". The act specifies that the guidance "shall be the Justice’s interpretation of the law" as it pertains to "a particular point of conflict or lack of clarity". While that bill warns against giving judicial guidance "for specific cases, trials, or situations", the bill permits the judiciary to comment on questions of constitutionality and other questions of law and interpretation outside of the context of a case. The Supreme Court has thankfully not issued such any such guidance so far; the Parliament should amend the law to abolish this unused provision that, if used, may threaten the fairness and impartiality of judicial hearings.

1. Short Title
(a) This bill shall be referred to as the "Cases and Controversies Act".
(b) This bill was written by Multi Man.

2. Judgment on Questions of Law are to be Restricted to Judicial Officers Presiding Over Active Cases and Controversies
(a) Judges and justices ("judicial officers") should not publicly provide legal guidance with respect to particular points of conflict and/or lack of clarity within statute, the common law, the constitution, or other laws of the isles, except in the context of a case, appeal, or other legal proceeding over which that judicial officer is presiding.
(b) A party to a legal proceeding may, during such a proceeding, file a motion to request a judicial officer be recused from a legal proceeding (a "motion to recuse") when:

(i) litigant believes that such judicial officer has issued public legal guidance in violation of Section 2(a) of this Act; and​

(ii) when such public legal guidance issued regards a question of law that is reasonably likely to be material to unsettled questions of law posed in that proceeding.​

(c) If a motion to recuse is filed pursuant to Section 2(b) of this Act against a judicial officer, that judicial officer must assess whether a reasonable person would have found the judicial officer to have violated the prohibition in Section 2(a) of this Act. If the judicial officer chooses not to recuse, another judicial officer from that same court or a higher court shall review the request, and may involuntarily recuse the judicial officer against whom the motion to recuse was filed should that second judicial officer find that a reasonable person would have concluded that the presiding judicial officer violated the prohibition in Section 2(a) of this Act.
(d) Nothing in this Act shall be construed to prohibit voluntary recusal from a case or controversy, nor to restrict the ability of parties to ask a judicial officer to recuse themself from a legal proceeding on other reasonable grounds.

3. Repeal
(a) The Judicial Guidance Act is repealed.

Enactment: This act comes into force immediately upon passage.