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Viscount Goschen: I certainly accept the point of the noble and learned Lord, Lord Archer, that one has to be very careful about putting any hurdles in the way of an urgent decision that requires speed above all else.
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However, the phrase that was suggested by my noble friend"believes on reasonable grounds"is a fairly low hurdle, but it is a hurdle of sorts. The Bill as a whole, particularly in Part 2, invites this House to write a great number of blank cheques. At least some qualification such as the Minister must believe on reasonable grounds, as my noble friend suggests, or some similar wordingperhaps the Minister can come up with something betterwould be appropriate.
Lord Archer of Sandwell: I thank the noble Viscount for giving way. Does he appreciate that the fundamental problem is that anything less than a subjective test would have to be decided on somewhere? It would require someone to adjudicate upon it. The only place where that can be done is in the court. Will that not slow down the process?
Viscount Goschen: I would never cross swords with experienced lawyers in this House. Surely the Minister makes the decision. A court would have to make a decision only if there was a challenge. The Minister would make his decision on reasonable grounds. Unless the Minister is going to tell us that Ministers will make decisions on unreasonable grounds, surely it is reasonable to ask them to make their decisions on reasonable grounds as my noble friend suggests.
I share the misgivings of the noble Lord, Lord Stoddart, about the word "genuinely". It is akin to saying "to be honest" or something of that nature. Of course the Minister's belief would be genuine. However, I support my noble friend's amendment or something very similar.
Lord Armstrong of Ilminster: What is the difference between "thinks" and "genuinely believes on reasonable grounds"? I suspect that the Prime Minister genuinely believed on reasonable grounds that the Iraqis had weapons of mass destruction. I do not know whether there is a sufficient difference between the two forms of wording to justify the amendment or whether it would be better to look at something else that achieves a worthy objective.
Lord Dixon-Smith: Perhaps I may add a second thought, prompted by the noble and learned Lord, Lord Archer, although a second thought in the same afternoon might be a little dangerous. On other Bills, I have heard Ministers argue that to do something "on reasonable grounds" was a proper form of wording to put into a Bill, because it opened the possibility of challenge.
We are assuming that emergency action is at issue. The action will be taken. The reason for allowing it to be challenged in court is not to prevent the action, but to open up the possibility of damages in the event that that action was deemed to be improper and someone subsequently suffered damages that they would not otherwise have suffered. A distinction can be drawn. I have certainly heard that form of wording advanced
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and advocated by Ministers previously when we have tried to replace it with something stronger or to remove it.
Lord Monson: It is generally the custom of this Government and, up to a point, all governments to resist fine-tuning amendments of this nature, but they would be wrong to do so in this case, because the adverse consequences in terms of time, trouble and money if the Minister were to jump the gun on wholly inadequate evidence would be considerable.
However, having listened to the contributions from all quarters of the Chamber, I think that the noble Lord, Lord Stoddart, had a very good point in the wording that he suggested. "Available evidence" is better and it would get round the problem that was raised by the noble and learned Lord, Lord Archer. I shall await the Minister's reply with great interest.
Baroness Buscombe: Before the Minister replies, I would like to add that the amendment has to be read also in the context of the fact that the Minister would be able to do something that he or she "thinks" is right and be able to give, as the Bill is drafted, an oral direction. Nothing would have even to be written down.
We are talking about an extraordinarily wide power. I apologise to noble Lords for not having made the point clear and I shall make the point again in later amendments. We are talking about the ability to do something which a Minister "thinks" is necessary, on the spur of the moment perhaps, without having to have reasonable grounds. I would argue that the Prime Minister may have genuinely believed that there were weapons of mass destruction, but we have learnt that there were no reasonable grounds.
So there is a difference between "thinks" and genuinely believing on reasonable grounds. Basing that belief on evidence, as the noble Lord, Lord Stoddart, suggested, is entirely right, particularly given that we are talking about a fantastic power that the most junior Minister would have to be able do something by oral direction, because of insufficient time to produce regulations. I urge noble Lords to consider the bigger picture in relation to the whole of Clause 7.
Lord Bassam of Brighton: These are not amendments that we feel we can support. Before I get into the specifics, it is perhaps worth reminding ourselves of the purposes of Clauses 7 and 8. I think that a number of noble Lords have rumbled precisely why they are in the legislation.
The provisions are designed to enable action to be taken by Ministers or, in the case of Scotland, Scottish Ministers in a situation of urgency where there is insufficient time to make legislation. It is an exceptional power that is designed to ensure that, in those cases of real urgency, the Government can arrange for coherent and effective action to be taken at a local level. I can therefore understand why a number of noble Lords who have been party to the debate are keen to test the extent to which the Government feel
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that these powers are necessary; more importantly, to understand the circumstances in which they might be used; and to ensure that robust safeguards are in place.
There will be circumstances when an emergency appears imminent when consistent, decisive and swift action must be taken. I think that most noble Lords will accept that very simple but important point. The response required to an emergency might fall outside existing emergency frameworks. Local responders, for example, might lack the information or advice to deal with it effectively, or it may not be apparent to local areas how best to deal with the situation, for whatever reason. In such situations urgent directions might be required; for example, in the case of a sudden heightening of a terrorist alert or immediately following a severe attack. Furthermore, urgent directions might be required when local responders are faced with a new scale or type of risk or threat. In such situations it is important to act swiftly.
The amendments would require that the Minister's belief that an urgent direction is needed has to be reasonable. On the face of it, that seems entirely reasonable. However, the power to issue an urgent direction is a very unusual one and could be used coercively. I can therefore understand why the noble Baroness has tabled these amendments. Indeed, I can agree with the sentiment of the amendmentsthat we should expect all Ministers to exercise their powers in a reasonable and justifiable way. I do not think that anyone could argue against that point. We think, however, that the amendments are unnecessary.
In issuing an urgent direction, any Minister would in any event be under the important public law duty to act reasonably. It has been argued that the requirement to act reasonably should be expressly provided for, to put the issue beyond doubt. However, to duplicate the public law requirement on the face of this Bill could cast doubt on its application to legislation where it is not explicitly expressed. I shall repeat that. If we put the provision on the face of the Bill, it could cast doubt on its application to legislation where it is not explicitly expressed.
Lord Dixon-Smith: I hope the Minister will explain that a little more. He seems to be arguing that something written in one Bill would give the same licence under another Bill in which it is not written. I have seen the word "reasonable" written into Bills before. If he is saying that it is reasonable for a Minister to act unreasonably if he is using powers under another Act which does not use the word "reasonable", I think he is using an unreasonable argument.
Lord Bassam of Brighton: The noble Lord makes a neat point. As I explained, the effect of other legislation might be undermined if we put the provision into the Bill in the terms that the noble Baroness has suggested. When the Select Committee on Delegated Powers and Regulatory Reform looked at this power and at how the Government have responded to those concerns, it did not express any concern itself about the absence of an express duty to exercise the power reasonably.
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There is already a clear requirement on Ministers to act reasonably when exercising the powers in the Bill. The fact that this obligation derives from public law rather than statute law does not, I am advised, in any way affect the strength of that requirement or the manner in which it can be enforced. Action taken by Ministers in breach of public law obligations will of course be challenged in the courts in the same way as action that breaches an express statutory requirement.
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