Detailed Commentary on Sections in Part 6 Miscellaneous Section 153: Power to vary retrospective decisions
537.This section provides for a court or tribunal to remove, or limit any retrospective effect, or suspend any such effect, of a decision by it that an Assembly Measure or Act or a provision of it is outside the Assembly’s competence, or that a provision of subordinate legislation made (or purported to be made) under an Assembly Measure or Act of the Assembly, or by the Welsh Ministers, the First Minister or the Counsel General is outside the power to make that subordinate legislation..
538.The section also provides that one of the criteria the court or tribunal must take into account when determining whether to use this power is the extent to which third parties would otherwise be adversely affected.
539.The section also provides that if a court or tribunal is considering using this power it must in certain circumstances give notice of that fact to the Attorney General and the Counsel General in relation to proceedings in England and Wales, to the Advocate General for Scotland in relation to proceedings in Scotland and to the Advocate General for Northern Ireland in relation to proceedings in Northern Ireland. The appropriate person may then become a party to the proceedings so far as they relate to the making of the order. The section enables the court or tribunal to take into account and award the whole or part of the additional expense incurred as a result of the participation of an appropriate person to the person who incurred them.
540.Provision for court procedures applying for the purposes of this section can be made under any power to make provision for regulating procedure before any court and tribunal. Such provision would include, for example, how to determine the time within which any notice is to be given.