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There is a clear difference between shifting the burden from acting reasonably in decision making and being able to act only with objective certainty. We say that the way in which noble Lords have drawn the amendments would mean that there would have to be absolute certainty before one could act.
Again, with the word "thinks" we go back to the discretion that the Minister will have to exercise in order to satisfy himself or herself that the regulations are necessary for the purpose of preventing, controlling or
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mitigating an aspect or effect of the emergency. There again, the Minister would have to act reasonably in exercise of discretion.
If that matter had to be challenged, of course, it would be clear that the Minister would not be entitled to act on a frolic of his own, but would have to have clear information on which that assessment or judgment was made. The only way of guaranteeing whether those provisions will be absolutely necessary is likely to be with hindsight. On the information that is then available to him, the Minister has to come to a judgment about what orders and regulations may be necessary on the facts then known of the nature of the emergency which is contemplated or is then in being.
Lord Archer of Sandwell: My Lords, the word "necessary" is not in that subsection. What is at issue is what the person making the regulations believes is the purpose of making them. That cannot be challenged in any court because he knows what the purpose is; he cannot be wrong about it.
Baroness Scotland of Asthal: My Lords, I disagree. It would be important for the Minister to base what he thought on some form of information. If one looks at the matter in a concrete way and says, "Was X required as a regulation?", it would be very difficult to say that there was evidence that was absolutely required. One may say that it may be necessary, particularly if one is contemplating an emergency. A number of things may be necessary and prudent, but subsequently they may prove to be unnecessary, although at the time they were thought to be of importance to deal with the emergency as it arose.
To stipulate that the test for acting has to be objectively perfect, so that one has to have perfect knowledge, would simply be to paralyse the decision- making process. One could ask: At what point could the Government decide that the evidence is objectively watertight? To introduce an element of doubt in situations where response is needed urgently could risk delaying the response and allowing the effects of the emergency to spread or intensify. Then an important decision would have to be made. As I have made absolutely clear, any decision that the Minister takes must be subject to the ordinary principles of public law and, therefore, such decisions must be reasonable.
Lord Lester of Herne Hill: My Lords, I am sorry to have to speak again about a matter of law. Surely, the way in which the Minister has put the advice about Clause 22 is that she has forgotten about a different principle of administrative law; that is, the principle of legalitynot the principle of rationality but the Padfield principle. It is quite clear that where a Minister exercises a power that is beyond the purpose of the power being conferred, that is an abuse of power. Therefore, one simply does not need the word "thinks" in Clause 22 because the Padfield principle will ensure that the power
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is exercised only for the statutory purpose. Therefore, forgive my saying so, but it is constitutionally illiterate to suggest that the words are needed in that clause.
Baroness Scotland of Asthal: My Lords, we would disagree. The noble Lord is quite right to say that there are two principles: the Padfield principle deals with illegality. Nothing that I propose to say would in any way take away from that statement. We would say that those two issues are important here. We have considered whether it would be possible to add "required" or "necessary" and the view is that it would not be appropriate so to do.
We considered this issue. Clearly, emergency regulations should be made only if it is necessary to make provisions to deal with an emergency, but should each individual provision of the regulations be necessary? We believe not. When one is considering the appropriateness of individual provisions of the regulations, necessity is not the right test.
Let me give your Lordships an example. In the event of a chemical or nuclear incident, which leads to the contamination of large numbers of people, it may be necessary to take additional powers to deal with the situationpowers to quarantine people and powers to requisition buildings for that purpose. In other words, it may be necessary to make emergency legislation. Can it be said that it is necessary to requisition one particular building and require contaminated people not to leave that building? Requisitioning the building next door or in the next street, and requiring people to remain in the location, might be equally effective. Therefore, one would find it difficult to satisfy the necessity test in that particular instance. When one gets down to the nitty gritty of what goes into particular regulations, we believe that "necessity" is not the right test.
We shall certainly take these issues away. This matter has been given much anxious attention. I shall be happy to return to it at Third Reading, but these issues have been subject to quite intense discussion, both with lawyers and parliamentary counsel, and the advice so far is that this construct is the best that can be devised.
Lord Elton: My Lords, I am grateful to the noble Baroness for her reply which has failed in its gallant attempt to persuade me that she is right. I do not think it necessary to particularise all the respects in which she has failed to convince me. However, she said that she would think about the matter between now and Third Reading. I shall return to that point in a moment.
I thank other noble Lords who have taken part in this debate, with far more wisdom than me. I am slightly less grateful to the noble and learned Lord, Lord Archer, than to others. In considering how he should be received, I thought of the first person to leap out of the Trojan horse, but then I remembered that Troy fell after that, so I prefer to put myself in the place of St Paul when the Galatians suddenly defected and expected salvation by works rather than faith. I am glad to see that he proposes to redeem himself, as they
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did, when we come to Amendments Nos. 71 and 73. In the mean time, I beg leave to test the opinion of the House.
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