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Lord Elton: My Lords, the Minister has put the next old boys' meeting that I go to in a very different light. However, I shall read with great interest what he has said. I have not infringed the rule of my noble friend Lord Lucas and I would not dream of doing so. I have shortened the noble Lord's own drafting by 10 lines. It may have escaped his notice that Amendment No. 28 would delete subsection (5), which becomes otiose as a result of the insertions made by Amendments Nos. 23 to 27.
I shall not delay noble Lords on this point other than to say merely that I go away surprised and unsatisfied, and reserve the right to return to the point at a later stage when we have a little more time. I beg leave to withdraw the amendment.
The noble Lord said: My Lords, this amendment is a rather different matter with more serious consequences. I think that noble Lords are agreed that it is our hope and intention that the courts will oversee the processes which we are setting up, protecting the rights of individuals and restricting the powers of officials or Ministers strictly to what it is necessary to allow. The test of what is illegal and what is not must therefore be extremely clear and simplenot only for the courts but for Ministers who have to exercise the powers and for the public who will either benefit or suffer from them.
Into this necessity for clarity the Government have intruded the concept of what the Minister thinks. Having been a Minister, I know that Ministers think and that what they think may often be quite mistaken. That is the contingency for which we have to provide.
and so on. Presumably, the court will have to consider the condition of the Minister's mind and whether he was acting reasonably. What would be the change, other than the removal of one layer of legal dispute, if the Bill, as I suggest, were to read:
The same applies to Amendment No. 34 in regard to Clause 8, "Urgency: Scotland", which refers to Scottish Ministers. Under this clause, we have to consider not what they think individually but what they think collectively. That is a difficult test. It is one that could be protracted for a length of time, during which the regulation in question would presumably be operative, and damaging if it was illegal.
and so on. We are here faced with the possibility, raised by the draftsman, that a person making a regulation may think that it is for a purpose different from that for which it is designed. So he could be arraigned for closing all the magnificent new casinos that we expect to spring up all around the country because they were being used as a source of disaffection, when he actually thought he was saying something about transport. Surely that cannot be the case.
It is difficult to visualise any circumstances in which a Minister may make a regulation which he thinks is for one purpose when it is for another, so it seems to
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me that Amendments Nos. 71 and 73 would be the easiest for your Lordships to agree to. The other amendments follow suit, and I am grateful to noble Lords who have put their names to them.
Lord Archer of Sandwell: My Lords, I hope I am not about to dilute the gratitude of the noble Lord, Lord Elton. Although I added my name to Amendment No. 29, I hope he will find it in his heart to forgive me when I say that I am having second thoughts. I have not been able to discuss the issue with the noble Lord, and I am springing this on him.
The intention is that the urgency provision shall take effect if there is an urgent need to make the provision. So someone will need to decide whether that condition is satisfiedand that someone will have to be either a Minister or the court. If the words "a Minister of the Crown thinks that" are not there, the test will be an objective one; and if the power is challenged, the court will have to decide whether it is satisfied.
On reflection, I can foresee problems with that. The court will require evidence of the need to make the provision. That may entail taking a substantial body of evidenceone can envisage a lengthy hearingat a time when the whole question is whether there is urgency. Perhaps even worse, some of it may rest on intelligence which it would not be in the public interest to disclose; and the disclosure might endanger the source of the intelligence and there could be questions of the court going into camera and so on.
I understand that it would avoid those difficulties if the decision is required to be made by the Minister; that is, if he thinks there is an urgent need. I agree with what my noble friend Lady Scotland said at an earlier stage that the court may nevertheless require to be satisfied that the Minister really has applied his mind to the questions, has received information on which he can make his judgment and that his judgment was within the parameters of reasonableness. At that stage, I am deserting the ship.
However, the case is very different in respect of Amendments Nos. 71 and 73. What the Bill requires there relates to the purpose of making the regulations. Again, had the clause stated that a regulation must be shown to be "required" for one of the purposes listed, a court would need to be satisfied that it was required, and again there would be problems relating to evidence. If the clause had stated that the Minister must be satisfied that the regulation is necessary for that purpose, I could have understood why it was drafted in that way.
I am most grateful to my noble friend Lady Scotland, who has lavished on me a great deal of time and care in discussing the merits of various formulations which will
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avoid all our difficulties. So far we have been unsuccessful. Even that team has broken down at the moment.
However, the clause states that the Minister must think that the regulation he is making is for that purpose. As he is making the regulation, he must know what the purpose is; the purpose is in his own mind. He cannot be in doubt about what was in his mind. If we allow something which is nonsensein the literal, logical sense that it does not make sensewe will be held up to ridicule by future generations.
I have looked at the cases cited in Committee by my noble friend Lady Scotland. They establish that if, as a condition of taking a certain step, an official must be satisfied that something is the case, the court may inquire whether he was so satisfied. But, as my noble friend properly pointed out, the court may also inquire whether his satisfaction was reasonable.
So, on any formulation, there is a safeguard. What matters is: of what must he be satisfied? His satisfaction may be that the provision is necessary for the purposes listedthat is understandablebut it remains nonsense to require him to think that something is going on in his own mind. The formulation suggested by the noble Lord, Lord Elton, at the moment appears at least to avoid that absurdity.
Lord Lloyd of Berwick: My Lords, I support the amendment. I apologise to the House for joining in the discussion of the Bill at such a late stage in the proceedings. However, having read the debate that took place on Clause 7 in Committee, I wish to add one matter to the debate.
The question has little to do with whether the Minister is under a public law duty to think reasonably, a point made by the Minister on the earlier occasion. It seemed to me that he was on much sounder ground when he said that,
That is exactly the approach that I would adopt in supporting this amendment, which has the effect of leaving out seven words from the Bill that add nothing or almost nothing, could well cause confusion and, in any event, to my mind, look extraordinarily odd when one sees them in statute.
Of course, the clause relates to a very urgent situation, but this is not the first time that Parliament has had to deal with urgent situations. The thought occurred to me that it is not dissimilar to a provision in the Regulation of Investigatory Powers Act 2000. The analogy is quite close, because that Act enables the Secretary of State to give or make a warrant for the interception of communications which, in the ordinary event, he would have to sign with his own hand. That was the original provision under the original Interception of Communications Act 1985. But it also provides, in Section 7(2), for what is described as an "urgent case".
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One can imagine a case in which someone arrives in this country and it is essential that his telephone should be intercepted at once, but for some reason the Minister is not available in London to sign a warrant. What does the Act provide in that case? It says that in such a case the Secretary of State can authorise an official to sign the warrant himself, provided that the warrant states on its face that it has been authorised in that way. All that that provision states is that the Secretary of State can do that in an "urgent case". It does not say that the Secretary of State can do that if he "thinks" that there is an urgent case. The test is purely objectiveand with great respect to the noble and learned Lord, Lord Archer, I cannot see an objection to an objective case here.
There are many occasions when Parliament correctly imposes an objective test on Ministers when in reality there will not be time for the courts to intervene between whatever direction has been given and the time when it takes effect. The fact that there will not be time for the court to intervene and test whether the case is urgent does not seem a very serious objection. On the other hand, the Regulation of Investigatory Powers Act 2000 seems a good model, which the draftsmen of this Bill should have followed. Either there is a situation of urgency or there is not; if there is, it really adds nothing for the Minister to say that he thinks it is urgent. Obviously, he will give a direction. But if a situation is not urgent, his thinking cannot make it so.
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