I am very grateful to the Minister and to all those who have spoken in this interesting debate. It is important to emphasise that this is not a technical legal issue. We are concerned here about the integrity of judicial review—a vital safeguard of the rights of all citizens.
I agree with the noble and learned Lord, Lord Falconer of Thoroton, that what is objectionable about Clause 1 is the power of judges to wave a judicial wand and to say that what they have found to be unlawful shall be treated—the word emphasised by the Minister—as if it were lawful.
If there are cases of concern—the noble and learned Lord, Lord Hope, said that there are or may be—a suspended order is quite sufficient to give Parliament time to act. Those in Parliament, not judges, are the appropriate people to validate that which the court has found to be unlawful. New Section 29A(1)(a) meets that need. Indeed, that was the issue in the Ahmed case, where the noble and learned Lords, Lord Hope and Lord Brown of Eaton-under-Heywood, had, as judges say, the misfortune to disagree with each other. It was what the noble Lord, Lord Faulks, recommended in his review.
My noble friend Lord Anderson mentioned the comments of Lord Nicholls for the Appellate Committee in the Spectrum case that prospective overruling might—I emphasise “might”—be appropriate, although not in that case. That was in June 2005. Such a power has never been exercised or come close to being exercised in any case since.
There is an important difference between the common law not ruling out the possibility of prospective overruling and Parliament including such a power in this Bill. I cannot understand why this provision is in the Bill. As I said, it was not recommended by the noble Lord, Lord Faulks. What has provoked the need for new Section 29A(1)(b)? The Minister said that the Government want to put new tools in the judicial toolbox—but why this tool? What case has provoked the need for this provision? When have judges ever lamented the absence of such a power?
My noble and learned friend Lord Brown of Eaton-under-Heywood emphasised the need for flexibility, but Clause 1 is not flexible in an important respect. If this power in new Section 29A(1)(b) is exercised, then under new Section 29A(5), as the Committee has heard, the impugned act
“is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
There is nothing flexible about that. With all due respect, the Minister’s reliance on “treated” is a matter of pure semantics; “for all purposes” means always and for all persons, whatever their circumstances, and even though they have not been represented before the court.
Therefore, I say to the Committee that there is no need for this power in new Section 29A(1)(b). It is inappropriate in principle. But for today, of course I beg leave to withdraw this amendment.