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Lord Thomas of Gresford: My Lords, I am most grateful to the Minister for his careful reply to this debate, as I am to all noble Lords who have taken part in it. I was taken back by the noble and learned Lord, Lord Lloyd of Berwick, to the night of 10 and 11 March last year. I wondered to myself whether we missed all that sleep in vain as a result of the arrangements that were finally arrived at but which have not really been followed through.
I also thank the noble Baroness, Lady Hayman. I remember that, even as the sun was rising, she was still pursuing her sunset clause. It was only in the final stages that she felt obliged to give up the struggle. Her Majesty's Official Opposition gave up the struggle the next time. We fought it out to the end, which is why we are here todayto seek to make this amendment.
The noble Baroness, Lady Kennedy of The Shaws, reminded us, as always, of her deep devotion to the common law of this country and to the principles which she has always exhibited. We are very grateful for her support. We are also grateful for the support of the noble Lord, Lord Plant of Highfield. He asked methe debate gives me an opportunity to replyto explain the procedure in judicial review, which the noble Lord, Lord Carlile of Berriew, explains in paragraph 66:
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"In lay language, the decision of the Secretary of State will be upheld unless shown to be founded on a mistake of law, or on a disproportionate assessment of the facts in their legal context, or perverse".
The first and last concepts are easily understood. The middle concept is: where an administrative decision is frequently attacked, did the Minister ask himself the right question? That is where it comes from. If one can establish that the Minister asked himself the wrong question, his decision may be set aside. The court approaches judicial review by saying, "Parliament has given it to the Minister to make that decision; I will not second-guess his decision. I will not make the decision myself on the merits; I will just see that he has followed the required procedures in the proper way".
I am grateful to the noble Baroness, Lady Stern, for reminding us of the Joint Committee's findings about the inhibitions imposed by control orders on family life and the liberty of the subject of the order, to the extent that the committee was quite sure that it amounted to unusual punishment.
I think it is appropriate that I should seek the opinion of the House on my amendment. It would not cause the order to fall. I took the criticism of the noble Baroness, Lady Hayman, on that, but I say to her that, if the Home Secretary on 2 February says, "You are going to decide this on 15 February", less than a fortnight ahead, at a time when the Joint Committee has had no opportunity to consider the matter and to report, it is not easy to get together the battalions we had on the night of 10 and 11 March, which she will remember so well. I hope that she will not oppose the amendment on that basis. I ask her to support it because the primary safeguard that was built into the Bill was derived from her attempt to get a sunset clause. It was negotiated that there would be an annual renewal, but that has not proved an adequate safeguard, and that is the purport of my amendment.
The noble Lord said: My Lords, Amendments Nos. 1 and 2 seek to soften the line, break down the wall, that confines the commissioner and his exercise of powers to areas where the Assembly has functions; that is, devolved areas of government. Clause 2(2) sets that line firmly. Our Amendment No. 1 seeks to soften it. Why? The limitation on the commissioner's exercise of his functions to devolved areas only is unrealistic, as I believe we have all recognised in earlier discussions. Individual cases do not recognise departmental boundaries or fall neatly into devolved or non-devolved areas.
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It is clear from the nature of those functions, as described in subsection (1), that the commissioner will not be able, in practice, to draw a line that confines him to the devolved areas only. The Government appear to accept in Clause 2(3) that the commissioner may find himself in non-devolved areas. Therefore, provision is made that he may make representations to the Assembly on,
It is that consideration of practical necessity that underlies our second amendment, which seeks to ensure that the commissioner has direct access to the relevant Secretary of State, if necessary. That would certainly be the case if there is urgency in the matter.
The Minister will say that such changes as our amendments propose will blur the demarcation lines between devolved and non-devolved areas, between Assembly appointees responsible to that body and operating in specific areas, and civil servants employed by other departments of state. I understand the Government's concern and anxiety to prevent confusion, but they must recognise the realities on the groundthe real world in which the commissioner will operatewhere there are no clear lines of demarcation. Individual cases can involve a variety of departments, some of which are responsible to the Assembly and some of which are responsible to the Westminster Parliament.
The Government are wrong to specify the commissioner's "No Go" areas quite so firmly: they should allow some flexibility. Otherwise, there may be tension. The public simply will not understand why the commissioner can operate in one area, but not in another. This prescription seems to fly in the face of the Minister's wish, expressed at Report stage, that the commissioner should have,
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