These are important amendments. They address the botched way that, if these powers are to come in, the exercise of discretion is to be applied. My noble friend Lord Ponsonby is saying that you would use what the noble Lord, Lord Wolfson, describes as the tools in the toolbox only if it is “in the interests of justice to do so”. That is the starting point. That sounds to me a lot more sensible a starting point than the very strange wording in new subsection (9), which is, if the court is to make a quashing order in accordance with new Section 29A(1),
“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so”,
and the condition is that
“as a matter of substance”
an order under new subsection (1) would
“offer adequate redress in relation to the relevant defect”.
Obviously, there is a difference between adequate redress on the one hand and what is the best order in the interests of justice overall on the other. Can the noble Lord tell us why this strange wording has been adopted if all that is intended is the broadest possible discretion in relation to using these two new tools in the toolbox?
My noble friend Lord Ponsonby’s amendments also relate to new Section 29A(8). The Minister said, in reference to prosecutions and taxation, that you would never make a new subsection (1) order, whether a delayed quashing order or prospective only one, and that is clear, he says, from new subsection (8). He relied in particular on new subsection (8)(c), which refers to
“the interests or expectations of persons who would benefit from the quashing of the impugned act”.
If I have been prosecuted under a regulation that was unlawful, I would expect my prosecution to be upheld. But then, new subsection (8)(d), refers to
“the interests or expectations of persons who have relied on the impugned act”.
Therefore, if, for example, it is made unlawful to do a particular thing and I have had my dog put down as a result or I have bought lots of expensive equipment to comply with the criminal law as I thought it was, my interests or expectations under new subsection (8)(d) would be “Let the law stand”. So new subsection (8)(c) points in one direction and new subsection (8)(d) in another. If it is the Government’s intention that all prosecutions brought under unlawful regulations or laws will never be prospective only, and if it is their intention that taxation raised under unlawful regulations will never be prospective only, in my respectful opinion—I may be wrong, in which case let me corrected by the noble Lord, Lord Wolfson—new subsection (8) does not get him anywhere near that. Indeed, it leaves the judge to decide and the judge has to decide on the basis of new subsection (9).
I therefore strongly agree with my noble friend Lady Chakrabarti. A bit more work needs to go into this to get to a point where there is clarity about what the Government intend, if their intention is that these are only two tools in the toolbox, with complete discretion over how to use them. If that is what they want, my noble friend Lord Ponsonby’s amendments are giving them quite a good opportunity of getting there.