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Baroness Scotland of Asthal: My Lords, I too can count, and I see that there is unanimity in the House. However, that does not prevent me seeking to bring a little reason to the way in which the Government have put our case. The noble and learned Lord, Lord Donaldson, is right in his assessment of the current law, as was also reflected by the noble Lord, Lord Lester. They are quite right to give the chronology of the cases. We had the Wednesbury principle; Liversidge is seen as an aberration; then there was Ridge v Baldwin; and we have the famous judgment that I referred to previously by the noble and learned Lord, Lord Donaldson, who made it absolutely clear that a Minister was not entitled to go on a frolic of their own but had to act reasonably. If they step outside that ambit of reasonableness, that decision can properly be challenged.
I say straightaway to the noble Lord, Lord Elton, and those who support his view that of course I see the attraction of the simplicity. However, there is a flaw. Someone has to make the decision. The noble and
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learned Lord, Lord Donaldson, referred to the two issues about which a Minister would have to be satisfied, which are relatively clear. They have to be satisfied that, as a matter of urgency in relation to Clause 7(1)(a),
The decision that the Minister of the Crown has to make in exercising his discretionthat is what "thinks" is there to dois predicated on those two issues. That would be the basis of the decision, which could be reviewable. That is why the word is there.
I shall deal with the point made by the noble and learned Lord, Lord Lloyd. He refers to a different Act, which requires a different approach. In this case, whether or not it is appropriate to make an urgent direction under Clause 7 or include particular provision in emergency regulation is a question of judgment. It will have to be answered quickly, and made on the basis of information put before the Minister. We think it right and proper that the Bill should indicate clearly whose judgment will be necessary in order to activate this action. If we were to remove Clause 7(1), which states that what the Minister thinks is the determinant fact, we would not have something that was capable of review.
Lord Lloyd of Berwick: My Lords, surely that question is answered by Clause 7(2). It is the Minister who makes a direction in certain circumstances if it is urgent. What if he thinks that it is urgent?
Baroness Scotland of Asthal: My Lords, I respectfully disagree with the noble and learned Lord because both are needed. First, there must be an exercise of discretion that the matter is urgent and that there is a need for the kinds of direction that we would ordinarily make by order, pursuant to Clauses 5 and 6. That is consultative, as the noble and learned Lord will see. Then, there must be a decision that there is insufficient time. One then goes on to say that, once the Minister has determined those two things, he may, by direction, make provision of the kind that he could have made pursuant to an order or regulation in Clauses 5 or 6. Clause 7(4) sets out the basis upon which the Minister can give directions and states what he can do, and it sets that clearly within 21 days.
Therefore, I respectfully suggest that the first part is not otiose; it is important that someone be given the authority to make the initial decision, which could be capable of subsequent review. It is right to reaffirm the fact that Ministers are allowed only to think
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reasonablyI am sure that the noble Lord, Lord Elton, remembers that well. Unfortunately, where we do not think reasonably, the court has a wonderful ability to point that out to us and to quash our decisions.
Lord Lester of Herne Hill: My Lords, obviously it is crucial that we are clear about the test before the House decides on the question. Does the noble Baroness agree that the Wednesbury test is incomplete and that, these days, one issue is whether the principle of proportionality applies? Does she accept that, subject to whatever the courts say, if the discretion is exercised under Clause 7 disproportionatelythat is, if excessive use is made of itthat is something that no reasonable Minister should do? The old Wednesbury test is, in any case, tautologous and states something like, "Whether the Minister acted reasonably in doing something which no reasonable Minister could do". That is the old, very loose test. Does the Minister accept that the principle of proportionality is crucial when, under rule-of-law considerations, one comes not to use the ordinary law-making power in this case? That will affect very much the way that I approach the matter.
Baroness Scotland of Asthal: My Lords, the noble Lord is right to say that all the legislation that we now pass must be subject to the Human Rights Act compliance test. Therefore, the noble Lord would doubtless say that any of the provisions should be HRA compliant. Indeed, specific reference is made to proportionality in Clause 20. Noble Lords will remember that Clause 20(5)(b)(iii) states, in particular, that the person making the regulations,
and so it will certainly be expressly provided with proportionality. I have no doubt that, when construing the provisions, the courts will be entitled to take into account the way in which the Human Rights Act applies to this and every other application. I make it clear that the Human Rights Act is not excluded from operating in relation to this legislation.
Lord Lester of Herne Hill: My Lords, I am very grateful, but that does not quite answer my question because the Human Rights Act does not cover the whole of this ground. I am saying that we should forget about the Human Rights Act, and I am asking whether the Minister agrees that, if the discretion were used excessively and with a lack of proportionality, regardless of whether any human right was violated, that itself would be a misuse of power.
Baroness Scotland of Asthal: My Lords, there are two answers to that. One is an answer from me, and the other is an answer that I should make under consideration from the Government's point of view. I should say that the answer to that question was "yes", but that would be very much predicated on what I have just said about the way in which the courts would be entitled to construe it.
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The noble Lord knows as well as I do the way in which the jurisprudence has been developing. The courts take into account the way that proportionality will work, particularly bearing in mind the ECHR considerations, which clearly operate under our Human Rights Act, and that is a growing degree of jurisprudence. Therefore, I cannot say that the court would not so determine; I would expect it to be a consideration that the court would take into account. I do not think that I can say any more than that.
On considering the way that the provision is crafted, I respectfully concur with my noble and learned friend Lord Archer that the amendment to Clause 7 proposed by the noble Lord, Lord Elton, is mistaken. Of course, I understand why noble Lords have urged the amendment upon us. Certainly, I understand the arguments put forward by the noble and learned Lord, Lord Lloyd, and therefore I understand the concerns expressed by the noble and learned Lord, Lord Donaldson. However, for the reasons that I have just explained, I am comfortable about the way in which the measure is drafted.
I turn to the matters raised by the noble Lords, Lord Stoddart and Lord Lucas, and the noble Baroness, Lady Buscombe, and to Clause 22. On this occasion, I do not stand by the analysis of my noble and learned friend Lord Archer, but I commend him for his judgment in seeing the error of his first constructnot least because the noble Lord, Lord Elton, will know that there is much rejoicing in heaven at the repentance of every sinner. That is a slightly private joke between the noble Lord, Lord Elton, and myself; we are both members of a particular group. I notice that the noble Baroness on the opposite Front Bench took exception to that, but I say it very much in that context.
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