My Lords, I am slightly more relaxed than my noble friend Lord Pannick about the prospective-only quashing power in the new Section 29A(1)(b)—it is, in its essentials, already acknowledged in our law—but only so long as the courts are free to use it without constraint or presumption. In the Spectrum case of 2005, Lord Nicholls thought a prospective-only quashing order might be appropriate in some cases where a decision on an issue of law was unavoidable but a retrospective decision would have gravely unfair and disruptive consequences for past transactions. Each of his six colleagues agreed that it would be unwise to rule out the existence of such exceptional cases, even though Spectrum itself was not one of them.
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One such case, to which the Minister referred at Second Reading, was the British Academy of Songwriters, Composers and Authors case of 2015. Regulations that had given the public a right to copy compact discs bought for their private use were found to be unlawful. The High Court quashed them with effect for the future, but noted that while they had been in force, when everyone assumed them to be lawful, numerous private individuals had made copies of their CDs for private use. By declining to quash the rules retrospectively, the court served the interests of legal certainty and left in place the legal protection that the rules had afforded to these blameless individuals. The case is a reminder that these specialised remedies are not only capable of assisting public authorities; they may help others as well, who relied justifiably on the law as it was assumed to be.
My noble friend Lord Pannick, with his incomparable experience of public law, suggests that the ability to grant a prospective-only remedy should be withheld from the judges because, as I understand, it would enmesh them in decisions falling outside their proper sphere. The short answer to his point is that his amendments would not remove the existing common law power to grant this remedy. The most that could be said is that placing the power in statute might make applications
for its use more frequent. However, his point deserves to be answered as a matter of substance. It is true that a court deciding on an application for one of these exceptional remedies would need to have regard to the factors listed in new Section 29A(8), but there is nothing particularly unusual in that. Factors of that nature are balanced every time a court of judicial review considers, for example, whether to grant interim relief.
I would suggest that the greater judicial incursion into matters of settled policy may come not from a prospective-only quashing order but from a conventional quashing order with retrospective effect. Though judges notionally declare the law as it has always been, the reality is, as Lord Reid first put it in 1972, that this is a fairy tale and that their rulings often make new law. The noble and learned Lord, Lord Hope, cited in his speech in the Spectrum case an observation that
“to apply an admittedly new rule retrospectively is blatantly legislative however fair or otherwise normatively appealing this may be.”
The effect of the prospective-only quashing order in the British Academy of Songwriters, Composers and Authors case was to reduce, not increase, the policy impact of the court’s ruling.
So, for my part, I would not object to the place of prospective-only rulings in the judicial toolbox being confirmed by Clause 1 of the Bill, any more than I object to the inclusion of suspended quashing orders. But—here the Minister will stop nodding—that is so only for so long as there is no question of the Government seeking to dictate when these remedies should be used; that is the subject of Amendment 13 in my name, to which we will come in the third group. So, while I have not put my name to Amendments 1, 4 and 5 in the name of my noble friend Lord Pannick, I could be driven to support them if the new Sections 29A(9) and 29A(10) remain part of the package.
I will wait to hear from the noble Lord, Lord Ponsonby, on Amendment 3, but I must say that I am not persuaded in advance. As I mentioned at Second Reading, it is usual in some other jurisdictions for prospective-only quashing orders to be made only on condition that the benefit of the quashing extends to litigants who have already brought similar claims to that being adjudicated upon. For that specific reason and as a matter of general principle, I would not be in favour of diminishing the flexibility of the courts by removing their power to impose conditions. I like much better the noble Lord’s Amendment 6 and wait with interest to hear what the Minister has to say about it.