HC Deb 19 May 1998 vol 312 cc785-6
Mr. Jenkin

I beg to move amendment No. 24, in page 42, line 2, after first 'to', insert `the protocol of relevant considerations and to'.

Mr. Deputy Speaker

With this, it will be convenient to discuss amendment No. 60, in page 42, line 4, at end insert— '(3A) In subsection (3), "protocol of relevant considerations" means a list of matters to which the court or tribunal is to have regard in exercising its powers under this section. (3B) The protocol of relevant considerations shall be drawn up by the Secretary of State, after he has first consulted such representatives of the judiciary and others as appear to him to be appropriate. (3C) The protocol mentioned in subsection (3B) shall not enter into force unless an Order containing it has been laid before, and approved by a resolution of, both House of Parliament and the Scottish Parliament.'.

Mr. Jenkin

As we near the end of this marathon process, it distresses me that we have such a short time in which to deal with the issue of retrospection, which we have not had the opportunity to discuss before now. Clause 93(2) says that, in deciding a devolution issue—that is, the vires of the Scottish or Westminster Parliaments—the court or tribunal may make an order removing or limiting any retrospective effect of the decision". Suppose that a sheep farmer in the west of Scotland decides that he is eligible for a grant. The Scottish Office denies it him on the ground that it is beyond the scope of the Parliament's powers to award it—perhaps it is a European Community grant. The matter eventually goes to the highest court and that court decides in the farmer's favour. The decision may have taken many years to reach, and the resulting expenditure would be expensive for the Government, not only because of the individual concerned, but because lots of individuals might be in a similar position. The farmer having won his case, the court could decide to limit or to remove the retrospective effect and decide not to pay out any money to give the Government time to change the rules so that the grant should not be payable.

That is fundamentally a political matter. Our amendment would allow the Secretary of State to draw up criteria by which such essentially political and subjective judgments should be made. What are the relevant considerations that a court should apply, as no legal text or guidance is available to help any court to decide what to do under such circumstances?

It being two hours and fifteen minutes after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to the Order [13 January] and the Resolution [12 May], put forthwith the Questions necessary for the disposal of proceedings to be concluded at that hour.

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