My Lords, this is a very important debate and in this part of it, I will focus only on whether it is appropriate to empower a delayed quashing order—as proposed in new subsection 1(a)—and whether it is appropriate to give a power to say it shall be prospective only. My overall position is that if the courts want these powers, let the courts develop them. Do not do it by legislation.
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In relation to the first of the two powers, a delayed quashing order that one should assume would have retrospective as well as prospective effect, I do not think that is too much of an incursion. That is not altogether unsensible. It deals with—if I may call it this—the Ahmed point. It avoids what the noble and learned Lord, Lord Hope, thought would be an affront, because in effect, it meant there was no protection against what most people would regard as a wrong. At the same time, it would force the courts to accept the illegality and say it has got to be got rid of, but it will only be got rid of in a month or two. As the judicial review by the noble Lord, Lord Faulks, identified, it also deals with the sort of case where the Government have done something in a way that fails to comply with a particular requirement. That requirement could be corrected, and it might be that the same conclusion is reached if you delay the effect of the quashing order until there is a chance to correct that. That may well do justice in the individual case. I can live with that.
What is terrible—the independent review of administrative law by the noble Lord, Lord Faulks, supports this view—is the idea that the court should have the power to say, retrospectively, that the fact that this act by the Executive was unlawful shall not have any effect going backwards. Drilling into the law, Clause 1(5) states:
“Where … an impugned act is upheld by virtue of subsection (3) or (4), it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
I take that to mean, in relation to a subsection 1(a) case, that the act remains unimpaired until the quashing order takes effect, at which point it is unlawful forwards and backwards. But if it is a prospective only quashing order, then, for all purposes, it is lawful going backwards. So, every prosecution brought on the basis of the unlawful regulations stands. Every piece of tax raised in the past as a result of the unlawful order stands, even though the law has required that prosecutions can only be brought on a particular basis. Even though the law has required that tax can only be raised on a particular basis, the effect of the prospective only order is that those laws can be set at naught by the judges. That, in my view, is going much too far. It creates huge uncertainty, and I am strongly against it.
I believe that the sorts of wrong referred to by the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, can be dealt with by prospective only. In the example the noble Lord, Lord Anderson, gave—the entirely bona fide but, as it transpired, unlawful copying in the British songwriters’ case—a suspended quashing order that gave the Government six months to validate would be the answer.
Do not give the judges the power to say everything going backwards is fine. That is for the legislature or the Executive to sort out, not the judges. Give the legislature or the Executive the time to sort it out by a suspended quashing order, but do not give the judges the power to set the law to one side for the past. That is not their role. Their role is to determine whether or not the Executive have acted in accordance with the law. Their job is to hold them to the law, not to free
them from the law. So, my strong objection is to proposed new Section 29A(1)(b), which is very much a remedy too far.