37. We welcome the decision to reintroduce the
proposal for a remedial order by way of the urgent procedure.
As we set out above, the change in the law which has now come
into effect remedies, in narrow terms, the incompatibility identified
by the court in its declaration. For this reason, we have recommended
that the order be approved by each House in the form in which
it was originally made.
38. We are disappointed that the Minister was
unable to agree to the inclusion of a statutory compensation scheme
within the Remedial Order. A Minister has power, when making
a remedial order, to include 'such incidental, supplemental, consequential
or transitional provision as the person making it considers appropriate',
and to make it have effect 'from a date earlier than that on which
it is made'.
We remain of the opinion that the inclusion of a statutory
compensation scheme in the Remedial Order would have been appropriate.
However, since this provision would have been to forestall a further
finding of incompatibility rather than to remedy the narrower
point identified by the Court of Appeal in this case, we shall
not insist on our view. It will be for the courts to decide, should
a case come before them in the future. Meanwhile, we trust that
the proposed ex gratia scheme will be applied justly and
appropriately. If it is, that may itself forestall any further