My Lords, before I seek to test the opinion of the House—which I propose to do—I will make two short points. I do not accept that there is no distinction between a suspended quashing order—which we accept is sensible in the interests of what the Minister referred to as remedial flexibility—and a prospective-only quashing order. The remedial flexibility in a suspended quashing order addresses entirely the point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in his article in the Times, and also addresses the point made in the Ahmed case, as explained by the noble and learned Lord, Lord Hope of Craighead, in Committee.
The objection, in answer to the noble Lord, Lord Faulks, to the prospective-only quashing order is not only that his independent review recommended suspended quashing orders, but it did not recommend prospective-only quashing orders. The important objections to prospective-only quashing orders are, first, not that they give the judges too much power, but that the power they give is to validate unlawful action before the date on which the quashing order is made—action that is ex hypothesi unlawful because that is what the court determines. Secondly, they would deprive litigants of a remedy if they have already suffered from the unlawfulness before the date of the quashing order.
The Minister said, incomprehensibly, that he stood by the answer that a quashing order would be made in the tax case. We say that the tax case illustrates the very danger of the court having the power to quash prospectively only. For those reasons, I respectfully seek the opinion of the House.