My Lords, I enter this discussion with some trepidation. Nevertheless, it raises very important points of principle, which have been essentially analysed in the last few minutes and the last few exchanges. As we have heard, the effects of Amendments 1, 4 and 5, in my name and those of the noble Lords, Lord Pannick and Lord Ponsonby, would be to remove from the Bill the power to make a quashing order prospective only. That is the problem: it is prospective only. We are not arguing for the removal of the power to delay. I will come back to that in a moment, but I start from the position that I agree entirely with the analysis of the noble and learned Lord, Lord Falconer, that a (1)(a) order could solve all the problems outlined by the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson.
I venture to suggest that it is significant that when the committee chaired by the noble Lord, Lord Faulks, considered its recommendations for this type of order, it recommended only the power to delay, not the power to validate past unlawful action in the way that a quashing order made prospective only would do. Our amendments are premised on the proposition that, when the courts find that an Act, or a decision or regulation of any organ of government, is unlawful, it should not then be able to decide only to quash it with future effect. As the amendment’s explanatory statement puts it, and as the noble Lord, Lord Pannick, explained, the proposed power would thereby validate
“what would otherwise be quashed as unlawful”,
and unlawful for all purposes. The noble and learned Lord, Lord Falconer, emphasised the provisions in proposed new Section 29A(4) and (5) for the all-embracing effect of a prospective-only quashing order.
New subsection (4) makes it absolutely clear that the impugned act—which is ex hypothesi an unlawful act because a quashing order is being made—is to be upheld in any respect in which the provision under new subsection (1)(b) prevents it being quashed. That has no flexibility. If the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope—as well as the noble Lord, Lord Faulks, as referred to in his speech—are seeking flexibility, a (1)(a) order is not the way to do it. Our Amendments 1 and 4 do not seek to debar a court on judicial review from permitting either officials to put right a decision taken unlawfully by remedying the unlawfulness or, as the noble Lord, Lord Pannick, pointed out, Parliament to alter unlawful regulations without the need to wield the blunt instrument of a quashing order immediately.
We suggest that the power to suspend by delaying the quashing order eliminates that risk. It mitigates the risk that a quashing order would have the effect of indiscriminately overruling all government action, for example a regulation, without distinguishing between what was lawful, or ought to be lawful, and what was unlawful. We say that enabling a decision to take effect
on a delayed basis would enable the law or the government action to be corrected so as to regularise the unlawful government action. So, the quashing order, if it took effect immediately, would be senseless, but it must stand once the delay is over, to deal with the past unlawfulness. It deals with the Ahmed point, as suggested by the noble and learned Lord, Lord Falconer, and it is a far cry from the courts permitting past unlawful action to go uncorrected.
The prospective-only quashing order power undermines the central principle on which judicial review jurisdiction is based: government action is required to be in accordance with law, and if it is not in accordance with law, it will be corrected. The noble Baroness, Lady Jones of Moulsecoomb, sensibly conceded in her speech that there may be conditions or limits but they can all be dealt with by the power to delay. A crucial point that a prospective-only order ignores is that “corrected” means corrected for everyone; that is, all litigants, future and potential, even those who have not yet brought cases.
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The point about taxation or unlawful charges is very important in this context. It may be that many people, faced with small charges which they suspect are unlawful, do not bring action to challenge those charges on the basis that they are unlawful. When an action is taken by litigant A, however, it is only right that litigants B to Z, who have paid up their charges which turn out to be unlawful, ought to have them refunded because the basis on which they were charged was outside the limits of what the Government were entitled to charge. All citizens are entitled to the benefit of a successful challenge and are entitled to be treated lawfully.
Against this argument is essentially that the courts should not have the power to treat an unlawful act as if it had been lawful. The Minister mounts the argument, which he mounted at Second Reading, that it is entirely reasonable for the courts to have that power in their discretion. He argues that Clause 1 merely gives the courts discretion to suspend or to limit the temporal effect of a quashing order, that the courts would be entitled to find good reason not to exercise the Clause 1 powers and that that is all perfectly reasonable—but it is not. Leaving aside proposed new subsection (9), which is the presumption to which we will turn, and proposed new subsection (8), which seeks to dictate how the court should exercise its discretion, what the court is being expressly told to do by these provisions is in the default case to ignore the fact that a Minister or other government agency has acted outside their powers and ratify what is an abuse of power retrospectively.
Far from the Bill being directed, as has been suggested by its proponents, at protecting parliamentary sovereignty from busybody courts, it really is an attack on parliamentary sovereignty. The noble Lord, Lord Pannick, pointed out forcefully that it is the job of Parliament to correct parliamentary errors. If Parliament has put limits on government action that the Government have then ignored or exceeded, then it is for Parliament to correct those limits.
Amendment 6, in the name of the noble Lord, Lord Ponsonby, is a valiant attempt to deprive the court of the power to treat an unlawful act as lawful in certain—