I know that my right honourable friend the Prime Minister is still recovering from my absence from the dinner, but I am sure he will provide the usual entertainment and speech that my colleagues would expect.
On the wording of the new clause, there are two separate points. First: do we have statutes with presumptions? Well, of course we do. Secondly, do we have statutes which set out a list of factors to which the court must have regard on either an exhaustive—rare, I think—or, much more commonly, non-exhaustive basis? Yes, of course we do. My noble friend Lord Faulks gave the example of the Limitation Act—in Section 33, I think, from memory. The noble Lord’s real question is, therefore, do we have an instance where those two are put together? There is a short answer and a longer one. The short answer is that I cannot think of one off the top of my head, but I will have a look. The longer answer, however, is, with great respect: so what? If a presumption is not objectionable in itself, and if a list of factors on a non-exhaustive basis is not objectionable in itself, what, I ask rhetorically, makes it objectionable when those two features are put together? There is nothing objectionable about it.
I suggest that the real point put to me is not that this is objectionable, wrong or sinister, but that it is unnecessary. The answer to that is that it is beneficial for two reasons. First, to repeat the point, the court’s considering these powers will encourage the growth of the jurisprudence. Secondly, as I said to the noble and learned Lord, Lord Judge, the fact that the court has to consider them means that they will be considered in all cases, because there may well be cases where it is not in the interests of the party to the case that they be used, but it could be in the interest of third parties.
That ties into the point I was coming to on Amendment 14 in the name of the noble Baroness, Lady Chakrabarti. I heard what she said—that she would prefer the other amendment but tabled this one on a probing basis—but let me respond to it. In addition to removing the presumption, it would replace it with a precondition that, before exercising the new remedial powers, the court must be satisfied that the modified quashing
order would offer an effective remedy to the claimant and any other person materially affected by the impugned act. This proposed precondition is superfluous, because the remedies available in the Bill are more effective and tailored, taking into account the interests of both claimant and third parties. The problem with the wording of her amendment is, as the noble Lord, Lord Anderson, pointed out, the copyright case. The wording used is not very good for third parties.
However, in that context, I should pick up a point made by the noble Baroness and by the noble Lords, Lord Marks and Lord Beith, concerning the phrase “adequate redress”, which was first made by the noble Lord, Lord Anderson of Ipswich, at Second Reading, if I remember correctly. We have heard the argument that we should replace that phrase with the phrase “effective remedy”, as also used in Amendment 14. I said in my closing speech at Second Reading, in response to the noble Lord, Lord Anderson, that I would reflect on this point with officials, and, of course, we have. I hope I can take a moment to explain the rationale behind the drafting.
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We believe that “adequate redress” is not a narrower but a broader term than “effective remedy”. Our assessment and concern were that “effective remedy” could more readily be interpreted as something specific to the particular claimant before the court. By using the phrase “adequate redress”, the Bill—I am conscious that I am saying this from the Dispatch Box—does not seek to confine the court only to considering any disadvantage suffered by the particular claimant. Instead, it allows the court to consider the impact on other parties who may have been affected by the impugned act. To that extent I agree with the points made by the noble Lords, Lord Marks and Lord Beith, but we suggest that the wording in fact has the opposite effect to that which they feared.
This is consistent with the operation of public law—I think the noble Baroness, Lady Chakrabarti, made this point—where the courts will consider all the implications of the relevant defect. The inclusion of the phrase
“as a matter of substance”
and linking “adequate redress” to the relevant defect—the noble Baroness will have picked up that it is not “adequate redress” in relation to the claimant or the parties before the court but in relation to the relevant defect—further emphasises that the imperative is for remedies to be practical and suited to the circumstances, including those of third parties, and not arbitrarily constrained—