My Lords, I feel I have to rise at this juncture. I supported Clause 1 at Second Reading and continue to do so today. Like other noble Lords who have spoken since, the noble Lord, Lord Pannick, I suggest, puts the case against the clause altogether too high. I say that Clause 1 and the powers that it confers on the judiciary valuably would add to the judges’ discretion, their powers to do justice not just to the claimant in a particular case but on a wider basis. I, too, was in the Spectrum case—Lord Nicholls’ case with the noble and learned Lord, Lord Hope, and others—and it was not a case in which we thought at that stage and in that context we should exercise this power, assuming we had it, to develop the law.
I am going to disappoint the Committee because I have insufficient recollection—I shall come back to this on Report, I promise or threaten—to deal now with the point from the noble and learned Lord, Lord Hope. But I see the force of what he says and, in a rather different context, I, too, wish to reminisce. I go back even further, a quarter of a century, to a case called Percy v Hall. It was so long ago that Mr Keir Starmer was the second junior with a very white wig. It was a case about by-laws in respect of Menwith Hill, a listening post, a secure station for GCHQ and the Americans, and the by-laws, not surprisingly, precluded public entry.
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However, Mrs Percy, a well-known lady at the time, and a lady friend of hers, on no fewer than 150 occasions within an 18-month period had, in contravention of the by-laws, entered the base and been arrested and detained for short periods. After that, the by-laws were held by a court to be void for uncertainty. She then sued the arresting police constables for damages, wrongful arrest, false imprisonment, and so forth. The case then came to us—I was presiding at the Court of Appeal. We held that the by-laws were sufficiently certain, so that aspect went, but we dealt with the case equally, for all the world as if the quashing order for the by-laws—the order in respect of the invalidity of the by-laws for uncertainty—had been rightly decided. Nevertheless, with some difficulty, we refused to give her damages for having been falsely arrested. Nobody appealed beyond that, but the value of the case for present purposes comes not in my judgment but in the judgment of Lord Justice Schiemann—Sir Konrad Schiemann—who thereafter became our judge for some years in the European Court of Justice in Luxembourg. I will read into the record a small part of his succinct judgment:
“The question is this: once a court has declared an enactment to be invalid, from what point in time does the abrogation apply, retroactively from the time of the court’s ruling (ex tunc) or only from the time of the court’s ruling (ex nunc)?… The ex tunc solution has an initial attractiveness.”
I pause here to say that this is the passage which the noble Lord, Lord Pannick, would very much like to stress:
“The law should never have been made and therefore one must proceed as though it never had been made. To do otherwise will in effect legalise the illegal and the courts are not in business to do that. Moreover, once the courts start to give some effect to illegal legislation, there will be less incentive for the legislator to refrain from such illegality.
The problem with the ex tunc solution is that it will often be the case that, between the making of the enactment in question and the declaration of its invalidity, many people will have regulated their lives on the assumption that the enactment was lawful. Society cannot function if all legislation has first to be tested in court for legality. In practice, money will have been spent, taxes collected, businesses and property bought and sold and people arrested and perhaps imprisoned on the basis that what appears to be the law is the law.”
Towards the end of the judgment, Lord Justice Schiemann pointed out that:
“It may be that, in the development of the law, future cases will draw on that part of our law which is applicable to cases containing a European Community element which shows a considerable amount of flexibility in dealing with this question. There are now many cases which examine the conflict which an ex tunc declaration produces with the principles of legal certainty, acquired rights and legitimate expectation.”
The time has now come for our consideration of that: it is in this very Bill. I continue to urge your Lordships to accept that we need the degree of flexibility that Clause 1 provides.