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Lord Falconer of Thoroton: As the noble and learned Lord said, Clause 112 provides for the power of a court or tribunal to vary the retrospective effect of its decision that subordinate legislation made by the assembly was ultra vires.
Subsection (2) of the clause empowers the court or tribunal to remove or limit any retrospective effect of such a decision or to suspend it. We believe that that is a sensible, important and practical power to give to the court. It gives the court or the tribunal a discretion as to varying the retrospective effect of its decision. We believe that the courts can exercise that discretion with responsibility.
The effect of the noble and learned Lord's amendments would be to limit the effect of the discretion that we give to the court. Both in relation to criminal and civil cases, the noble and learned Lord referred to the underlying uncertainty as a matter of law as to what the effect would be of a piece of subordinate legislation being declared invalid. I believe that the noble and learned Lord is correct to say that the law is in a state of uncertainty. The Boddington case was not required to resolve that dispute. There are cases in the Court of Appeal in England that identify the differing views in relation to what the law is, in particular as to whether or not such pieces of subordinate legislation, ultimately declared invalid, have any effect in relation
to people who may have relied upon them or conducted their affairs on the basis of them, perhaps for many years.I do not think it is right or necessary for the Government to seek to come to some unrealistic resolution of what is an unresolved point in the law. Rather it must be much more sensible for the Government to seek with clarity to give the courts powers to deal with the often unfair effects of a late and perhaps surprising declaration of the invalidity of certain provisions. With the greatest of respect to the noble and learned Lord, Lord Mackay of Drumadoon, surely the uncertainty of the law provides the appropriate justification for Clause 112. The courts know precisely what powers they have by looking at Clause 112(2). They do not have to resolve the Boddington issue, if I may call it that. They can simply approach the issue on the basis of where the justice of the case lies, not only in relation to the people before the court but also having regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected by the decision to strike down particular regulations.
I think the Government have made a sensible choice here. We have provided clarity about the powers of the court and we have given the court power to do justice where there are problems about the effect of subordinate legislation. It seems to us to be a realistic and sensible approach and it is hard to criticise it. I hope that the noble and learned Lord will withdraw the amendment.
Lord Mackay of Drumadoon: I am grateful for the frank manner in which the Solicitor-General described the uncertainty in the law. However, he has not addressed the issue I raised about criminal proceedings as to whether, notwithstanding the uncertainty of the law, it is appropriate to give any criminal court powers of the nature set out in Clause 112(2)(a) and (b). This is an important issue--
Lord Falconer of Thoroton: I apologise for interrupting the noble and learned Lord. I did not address that issue and he is right to draw my attention to it. One can quite see that in relation to an individual criminal case it might be extremely unusual for the courts to declare that certain legislation has never been passed and then not strike it down in respect of the case before it. However, we must remember that other criminal cases will have gone before which are not before the court at that stage. One can envisage circumstances in which the court may say the measure in question does not apply to a particular defendant but it would be wrong to unscramble a whole series of cases that have been conducted in previous years. I am not saying that will apply in every case, but the court may reach that decision considering all the people who may have relied on the provision over the years.
Lord Mackay of Drumadoon: I am grateful for that further explanation, although I remain seriously concerned about the issue. I intend to return to this matter later and I hope that when I do so the Benches of
this Chamber may be populated by others with a similar interest in the important legal issues that lie behind Clause 112. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
The Chairman of Committees: I must point out to the Committee that if Amendment No. 241C is agreed to, I cannot call Amendment No. 241D.
Lord Falconer of Thoroton moved Amendment No. 241C:
The noble and learned Lord said: At present the Bill provides for the Attorney-General to be involved in proceedings in which an order under Clause 112 might be made. However, it is possible that a case may proceed without either the Attorney or the assembly being parties, and as drafted, Clause 112 does not explain how the Attorney might be able to become involved in such a case. The new subsection proposed by Amendment No. 241C provides for that and also makes provision in relation to any additional expenses which a party might incur as a result of any intervention by the Attorney-General or the assembly. I beg to move.
Lord Mackay of Drumadoon: I have no objection to the purpose of this amendment. However, in view of the statement by the Lord Chairman that he cannot call Amendment No. 241D if Amendment No. 241C is accepted, perhaps I should explain what lies behind Amendments Nos. 241D and 241E so that the noble and learned Lord the Solicitor-General will reflect upon it.
Clause 112 as drafted would admit the possibility of the Attorney-General taking part in proceedings in Scotland or proceedings in Northern Ireland. In parts of Schedule 7 reference is already made to the relevant Law Officer. It seems appropriate to follow the same practice in relation to Clause 112 as applies in other parts of the judicial scheme that is laid down, to the effect that if the proceedings are in England and Wales it should be the Attorney-General, in Scotland the Advocate General, and in Northern Ireland the Attorney-General for Northern Ireland. I merely raise
Lord Falconer of Thoroton: I am prepared to accept the principle of these amendments. While proceedings to which Clause 112 will apply are likely to arise only in England and Wales, I accept in principle that they could arise also in Scotland and in Northern Ireland. Consequently, I see the sense in the points made by the noble and learned Lord in applying this power to take part in such proceedings to each of the relevant Law Officers.
However, for technical reasons we cannot accept the amendment as drafted. It does not tie in with Amendment No. 241C which we propose in relation to subsection (4). We shall need to consult counsel as to the precise drafting of any amendment. I shall also need to consult colleagues, and in particular with the Scottish Office, as it may have implications for the corresponding provision in its Bill; namely, Clause 93.
The noble and learned Lord has not had the opportunity to move the amendment. However, I make it absolutely clear to him that I undertake to return on Report with our own amendment to meet the point.
On Question, amendment agreed to.
[Amendment No. 241E not moved.]
Clause 112, as amended, agreed to.
Lord Williams of Mostyn moved Amendments Nos. 242 and 243:
Page 56, line 36, leave out subsection (4) and insert--
("(4) Where a court or tribunal is considering whether to make an order under this section, it shall order notice (or intimation) of that fact to be given to the Attorney General and the Assembly (unless he or it is a party to the proceedings).
(4A) Where the Attorney General or the Assembly is given notice (or intimation) under subsection (4), he or it may take part as a party in the proceedings so far as they relate to the making of the order.
(4B) In deciding any question as to costs or expenses, the court or tribunal may--
(a) take account of any additional expense which it considers that any party to the proceedings has incurred as a result of the participation of any person in pursuance of subsection (4A), and
(b) award the whole or part of the additional expense as costs or expenses to the party who incurred it (whether or not it makes an order under this section and whatever the terms of any such order it does make).
(4C) Any power to make provision for regulating the procedure before any court or tribunal shall include power to make provision for the purposes of this section including, in particular, provision for determining the manner in which and the time within which any notice (or intimation) is to be given.").
After Clause 112, insert the following new clause--
.--(1) There shall be an office of Welsh Administration Ombudsman or Ombwdsmon Gweinyddiaeth Cymru.
(2) Schedule (Welsh Administration Ombudsman) (which makes provision about the Welsh Administration Ombudsman and, in particular, enables him to investigate administrative action taken by the Assembly and certain other public bodies in Wales in response to complaints claiming maladministration) has effect.").
After Clause 112, insert the following new clause--
(" . Schedule (Amendments of Health Service Commissioners Act 1993) (which makes amendments of the Health Service Commissioners Act 1993 in relation to the Health Service Commissioner for Wales and in consequence of the establishment of the office of Welsh Administration Ombudsman) has effect.").
On Question, amendments agreed to.
Lord Carter: Looking at the clock, I should say that it is much too kind. Nevertheless, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
9 Jun 1998 : Column 995House adjourned at twelve minutes before eleven o'clock.
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