I have just two points. First, I agree with the noble and learned Lord, Lord Hope, that no reason is given as to why there is the presumption, but it is worth emphasising that the Explanatory Notes accept that there is a presumption. What is being said is, and it is the intention of the Government, that, if a quashing order is to be made—certain sorts of judicial review will always lead to a quashing order; for example, if a power to prosecute people has been given without justification from primary legislation—there is to be a presumption that the quashing will be delayed and that, subject to the condition in new Section 29A(9), you will use either the delay or prospective-only power.
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I find that odd, because the position is surely that when the court has found that something is unlawful, the norm should be “Set it aside now, set it aside for the past, set it aside for the future.” Yes, there may be circumstances where you delay that and, yes—although I am very opposed to it—if this Bill goes through, there may be circumstances where it is prospective only, but you would have thought that the position would be that, if there are special circumstances that justify not doing what the courts are there to do, which is to give remedies for unlawfulness, then do not do the normal quashing, do a delayed or prospective-only quashing. But no, what the Government wish to say is that the norm is delay or forwards only.
Secondly, my other experience in relation to this is that I was a Minister for 10 years. Ministers and the officials who serve them, who are all dying to comply with the law, will nevertheless be having different
debates with their lawyers now; they will be rubbing their little hands, as I would be rubbing my little hands, and saying, “Well, there are problems in this”—and Mr David Anderson, as he was, and Mr David Pannick, as he was, would be saying, “Well, you have got a bit of a problem here. This is unlawful but if you could restrict it to this case only, you can leave in place all the things you’ve got already.” They will further say, “What is more”—and the noble and learned Lord, Lord Thomas of Cwmgiedd, was right to raise this—“you can go to the court and say in accordance with new Section 29A(10) that we’ll sort out all the other people in the past.” For example, if lots of people have put something special on their roofs unlawfully to protect themselves against climate change, say to the court, “We’ll go and try to find them all and give them some sort of remedy”, and the court is specifically allowed to take that into account in determining whether or not to give relief.
That is what subsection (10) is about. The Minister is looking confused by me saying that, but that is what it is aiming at, and it is why the noble and learned Lord, Lord Thomas, is raising it as a potentially sinister measure. If we are to have new Section 29A(1)(a) and (b)—I can live with subsection (1)(a), but I cannot live with subsection (1)(b)—and if the Minister is true to his word, it is a tool in the toolbox; let the judges decide in accordance with a wide discretion. That is why my noble friend Lord Ponsonby’s suggestion of saying “in the interests of justice” is more than adequate. Let the judges decide in accordance with that sort of principle whether they use it. Let us not tilt it in favour of the Government. This provision looks to be biased legislation; it is not legislation that is genuinely and objectively trying to improve judicial review.