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Lord Lester of Herne Hill: My Lords, I, too, owe the House an apology, but for a rather better reason than the noble and learned Lord, Lord Lloyd of Berwick. Not only have I not taken part in the earlier stages of the debate, but also I follow two noble and learned Lords, and while I may be noble, I am certainly not learned.

To add to what those two previous speakers have said, I very much doubt that the words,

would be construed by the courts as different from,

Those of your Lordships who studied law will remember the appalling case of Liversidge v Anderson—the wartime emergency powers case—on Regulation 18B. Lord Atkin interpreted words in an objective way, which were interpreted by the majority of the House of Lords in a subjective way when they affected personal liberty. He explained that any other interpretation would be the language of Humpty Dumpty. Years later, Lord Diplock said that the dissenting judge, the great Lord Atkin, had been right.
 
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I would be interested to know whether the Minister agrees with me that although the words,

look very subjective, in practice, under modern principles of administrative law, the courts would interpret them as requiring objective satisfaction. If that is so, either the words do not need to be there at all or it would be better if they did not look so subjective, because it gives a cosmetically misleading impression. What it should say, if the words are needed, is,

That is the true position in modern administrative law.

I wholly agree with what the noble and learned Lord, Lord Archer of Sandwell, said about the two later amendments on purpose. Both the noble and learned Lords are right in saying that, ultimately, the courts would demand objective and not subjective satisfaction. But it is important to hear what the Minister says about that.

Lord Stoddart of Swindon: My Lords, now that we have had the erudite opinions of three legal minds, perhaps I could draw attention to the fact that I have two amendments in this group—Amendments Nos. 30 and 35. They deal with the question of "thinks" in a different way.

What I am proposing is that "thinks" should be replaced with,

That puts the matter in a nutshell and cannot be argued with.

I am attracted to the amendment tabled by the noble Lord, Lord Elton, because it uses fewer words. I am always pleased when legislation contains fewer rather than more words. But we are in this situation because of the loose wording of this part of the Bill. It is really as simple as that. We must be extremely careful, when passing very important legislation that may impinge on the freedom and rights of citizens, that we get it right. As I and other noble Lords said in Committee, it is simply not good enough. When such serious decisions will be taken not necessarily by a highly placed Minister but by a lowly one such as a Lord Commissioner, we must get it right.

One can think of all sorts of instances of this issue. For example, the Prime Minister thought that Iraq had weapons of mass destruction that could be used in 45 minutes. The fact of the matter is that he did not really have any evidence on which to base his decisions, but, because he thought that Iraq had weapons—which, of course, it did not—and he did not have proper evidence or, indeed, advice, we are now at war in Iraq and British soldiers are being killed and wounded.

Mr John Prescott thought that people of the north-east wanted regional assemblies. He only thought that—he did not have any evidence. The evidence was available. I knew how they were going to vote in the north-east, and if I knew that, and based my thoughts
 
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on the evidence, of course Mr Prescott should have known. He thought he knew, because he had no evidence, and he was wrong. He will now regret that he thought, instead of looking at the available evidence.

Something has to be done about that little word "thinks". I hope that the Minister will accept the amendment. If she did, I would be very grateful and so would other Members of this House. If she does not and if the noble Lord, Lord Elton, presses the amendment, I shall support him.

Lord Lucas: My Lords, I have tabled two amendments in the group. I care passionately about Clause 22, which is one of the vital parts of controlling the use of the powers in Clause 19 and onwards. To have it regulated by "thinks" is entirely unacceptable. I had not realised until I listened to the noble and learned Lord, Lord Archer, that it was also ridiculous. We must have a change of wording. I would much prefer the amendments of my noble friend Lord Elton, if the Government will accept them. If they will not, let us use words that they have found satisfactory elsewhere in the Bill—"is satisfied" rather than "thinks"—which are those used in my amendments.

One of the unfortunate consequences of the specialisation of legislation is that the words were presumably put together by specialist parliamentary draftsmen. No ordinary official would ever allow the provision, because "thinks" is something that Ministers can do on their own, whereas to be satisfied they would have to consult civil servants. That surely must recommend it to the officials, if not the Minister. I would like to see my noble friend's amendment accepted.

Baroness Buscombe: My Lords, I was very pleased to add my name to the amendment of the noble Lord, Lord Elton. The House will remember that I proposed amendments in Committee that referred to a Minister being satisfied on reasonable grounds. Following extensive debate, I decided that I preferred the amendment of the noble Lord, Lord Stoddart, with regard to evidence base. Now, however, I am absolutely certain that we should support the noble Lord, Lord Elton, for all the reasons given by all noble Lords who have spoken in the debate.

I am sorry that the noble and learned Lord, Lord Archer of Sandwell, has chosen to withdraw his very express support for the amendment. The noble Baroness, Lady Scotland, briefly attempted to lavish time and thought on me with regard to the sensibleness of the amendment but, unlike the noble and learned Lord, I decided to deflect her arguments.

All noble Lords who have spoken in support of the amendment have been absolutely clear. We are talking about simple drafting with the fewest words possible, as referred to by the noble and learned Lord, Lord Lloyd of Berwick. Surely we are all aiming to do our best to ensure avoidance of error. We want to
 
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ensure due consideration, so I hope that the noble Lord, Lord Elton, will press his amendment if necessary.

Lord Donaldson of Lymington: My Lords, I want to say a brief word in support of the amendment. As the clause stands, it requires that,

The "that" is a prelude to two relatively simple questions of fact. They are, first, whether there is an urgent need for a particular kind of regulation and, secondly, whether there is time to do it. It does not require rocket science to resolve either, although I agree that two views are slightly more possible on the first than the second.

The plain fact is that, if the administrative court is faced with an issue of whether,

I expect that it would adopt exactly the traditional attitude laid out in the Wednesbury case. There is authority for one not having to explain Wednesbury in the way in which it was originally explained. However, the way in which it was explained was that all Ministers were reasonable men and women. That is a given; we all know that they are. If they therefore reach an unreasonable decision—if, where there is a simple question of fact, they decide something different—they must have misdirected themselves in law. In the real world, that is a bit fanciful but, nevertheless, it is the law.

I have no doubt whatever that if a Minister wrong-headedly thought something, contrary to the evidence, the courts would simply quash it. Why not say so, as the noble Lord, Lord Elton, proposes?

Lord McNally: My Lords, I want to help the Minister, if she is doing some quick calculations. She could stick rigidly to a brief, but I want to make it clear that if the noble Lord, Lord Elton, divides the House, we will support him.


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