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It is true that the magistrate has to be satisfied that it is necessary to make the order to remove or reduce the risk, but a local authority might argue that an order, and only an order, would achieve the objective of reducing the risk. There is no proportionality test here—the noble Baroness, Lady Stern, made that point earlier. That is different from proposed new Section 45D(1), which stipulates that public health regulations may be made only if the,

“Minister considers ...that the restriction or requirement is proportionate to what is sought to be achieved”.

An order by a magistrate could in theory be imposed even if it was wholly disproportionate to the end result or to the degree of risk apparent at the time of the application. The amendments, therefore, seek to strike a note of realism into the provisions by saying that the degree of risk of infection or contamination must in all cases be significant before an order may be granted. I hope that the Minister will give this proposal some serious consideration. I beg to move.

Baroness Thornton: I understand that the intention behind these amendments is to ensure that where there is an insignificant risk of transmission an order cannot be made. I agree that that is an important principle. I hope that I can reassure the noble Earl that the Bill already does that.

As noble Lords know, under the provisions proposed in the Bill, a justice of the peace must be satisfied that the four criteria have been fulfilled before he can make an order under proposed new Sections 45G, 45H or 45I. The criteria are as I outlined in my previous answer: an individual is or may be infected or contaminated; the infection or contamination is one which presents or could present significant harm to human health; there is a risk that the individual might infect or contaminate others; and it is necessary to make the order to remove and reduce that risk.

If the risk of infecting or contaminating others was not significant the order would not be necessary, thus failing the fourth criteria. The significance of the risk in the third criterion is implicit—it is there already. I hope that the noble Earl will accept that we have addressed this issue and on that basis feels able to withdraw his amendment.

Earl Howe: I am going to have to think very carefully about that one—that the significance of the risk is implicit in the drafting. I could not see that it was. If the noble Baroness tells me that it is, then I must take that seriously. I shall go and look at it even more carefully. In view of the hour it is appropriate for me now simply to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Thornton: It may be a convenient moment for the Committee to adjourn until tomorrow at 12 noon.

The Committee adjourned at 8.03 pm.

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