LORDS AMENDMENTS (Hansard, 18 November 2004)

§ Lord Bassam of Brighton
My Lords, I beg to move that the House do not insist on its Amendments Nos. 37, 38, 43, 44 and 45 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 45A to 45E in lieu thereof.
The Government have studied very carefully the batch of amendments accepted by noble Lords on Report which related to the state of mind that a decision-maker must have before taking action under the Bill. The Bill originally required the decision-maker to "think" that an urgent direction was needed under Part 1, or that a provision of the emergency regulations was in due proportion to the emergency. Concerns were raised about that approach both in this House and in another place.
Noble Lords replaced "thinks" in each case with an objective test. In other words, the urgent direction must "be needed" and the provision of urgent directions or emergency regulations must be in due proportion. We have accepted the merit of those amendments in relation to the power to issue directions under Part 1. We have also accepted in principle the amendments in relation to Clause 25, which relates to the consultation of the Council on Tribunals where there is a proposal to establish a tribunal using emergency powers. However, to ensure that the drafting is effective, the Government moved a number of other amendments in another place.
In each such case, the decision-maker will be making a judgment of fact or near fact. Is there an urgent need to issue a direction? Is there insufficient time to consult the Council on Tribunals? We accept the argument of the noble Lord, Lord Elton, that in such cases an objective approach is appropriate, and are grateful for his assistance—dare I say persistence?—on that important point.
I turn to the amendments to Clauses 22 and 23, which relate to the kind of provision which can be included in emergency regulations. We do not feel able to accept the amendments. Inevitably, deciding what kind of provision to include in emergency regulations will be a question of judgment. Whether or not the correct response to an outbreak of an infectious disease, for example, is to impose quarantine or restrict public gatherings is not a question of fact. We think it appropriate for the Bill to recognise that those are judgment calls and to indicate clearly who is responsible for making them.
We can and should raise the test in those cases, however. We have therefore developed an alternative amendment, which raises the threshold of the test from "thinks" to "is satisfied". That will require the maker of regulations not just to think that the provisions of regulations are appropriate, but to be satisfied or pretty sure that they are.
There was a suggestion in another place that the decision-maker should be required to be satisfied "on reasonable grounds". As we discussed at various stages in this House, it is not necessary or appropriate to provide expressly that a Minister or other public body act "reasonably". After all, the requirement to 1618 act reasonably is a fundamental element of public law and we should not seek to duplicate it by including unnecessary language in the Bill.
I am very grateful to noble Lords for their assistance in improving the quality of the drafting of the Bill, and I urge the House to accept the compromise package in relation to Clauses 22 and 23.
Moved, that the House do not insist on its Amendments Nos. 37, 38, 43, 44 and 45 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 45A to 45E in lieu thereof.—(Lord Bassam of Brighton.)

§ Lord Elton
My Lords, I thank the noble Lord for his gratitude and his acceptance of our proposal on Part 1. On Part 2, I would have been happy had we dismissed the subjective element altogether, but I accept that what is proposed is a great deal tighter. It was suggested by my noble friend Lord Lucas on Report so, on his behalf as well as my own, I am grateful. If the noble and learned Lord, Lord Lloyd of Berwick, were here, I do not doubt that the discussion would continue a little longer, hut, briefly, I accept with thanks what the Government have done.

§ Lord Archer of Sandwell
My Lords, I would like to continue the discussion just a little longer. I express my gratitude to the Government for taking on board my point about "thinking" and someone's purpose, which I made, perhaps to the point of being wearisome, at early stages of debate. The provision totally satisfies me. It improves the Bill, if I may say so modestly, and I am grateful to have a listening government.
I would like to resolve two misconceptions about the other matter. On Report, there was an amendment tabled by the noble Lord, Lord Elton, to which I added my name. In the debate, I announced that I had undergone a "Damascus road" conversion and reached an opposite conclusion. Language that I used on that occasion gave rise to the idea that I had been persuaded to that conclusion by my noble friend Lady Scotland. She is indeed a very persuasive character, but on that occasion I reached the conclusion totally unaided. It would be unfair to blame her for the aberrations of my mental processes.
The other possible misconception is the reason that I gave for my conversion. I was troubled that, if the criterion of vires was objective, the courts might have to try a question of complicated fact when everyone was reacting to an emergency. In consequence, the court might be subjected to a long hearing and a large amount of evidence, evidence complicated by the fact that it might have security implications.
I was reversed on appeal by the noble and learned Lord, Lord Lloyd of Berwick, who gave as his reason that the court could defer dealing with the matter until after the emergency had passed and we had entered a period of tranquillity. I hope that I have not misrepresented him; that was what I understood him to say. If that were the case, it would be a little worrying for someone whose house was in danger of being pulled down to be told that the court would 1619 resolve at a later stage, after the event had taken place, whether there had ever been vires to do it. To that extent, with the great respect and deference that I always pay to him, I take issue with that.
Since then, another point has been urged on me, and I want to spend a moment explaining why I would still take that view. If a Minister had to decide a question of objective fact before exercising powers, he might just get it wrong. Governments have been known to act on a belief of fact that subsequently turned out to be a misconception. If that were to happen, it would be held that he had acted ultra vires. No Minister wants to act ultra vires. Questions of compensation might arise, although I doubt it because governments would normally ensure that citizens were compensated anyway. That takes us back to the balance that we discussed earlier on the Bill.
What is important in an emergency is that a Minister should act quickly and decisively. The provision could have created a culture in which Ministers acted slowly and hesitantly, which might be undesirable. For those reasons, too, I go along with the position that the Government have taken in another place. I am grateful to noble Lords for their patience in allowing me to make those explanations; in the United Nations, it is called an explanation of vote.

§ Baroness Buscombe
My Lords, I thank my noble friends who worked with us throughout all stages of the Bill to debate this important issue, and thank noble Lords all around the House. I thank the Government for listening to our many debates on the issue, with different suggestions from noble Lords to try to improve the wording of the Bill. It is interesting to note that, although we often feel a little shy of extending our debates, our honourable friends in another place spent a mere three hours yesterday debating all the amendments made by noble Lords. We, at this end, have such an important role to play. Our debate this morning and the comments and contributions that noble Lords have made on this issue have been extremely valuable. So perhaps we shall not feel so shy about the time we take up.

§ Lord Bassam of Brighton
My Lords, I am grateful to the noble Lord, Lord Elton, the noble and learned Lord, Lord Archer, and the noble Baroness, Lady Buscombe, for their comments on this package of amendments. I think that we have now struck the right balance. I listened with great care to the speech of the noble and learned Lord, Lord Archer. It was almost as if he had read my brief. I can assure your Lordships that he has not done so, but many of the points—

§ Lord Elton
My Lords, is the Minister sure that he did not leave the brief lying on the road to Damascus?

§ Lord Bassam of Brighton
My Lords, I shall not be tempted, other than to say that some conversions are beneficial to all. Perhaps this one has been most beneficial. We have reached a happy stage of 1620 agreement on this matter, for which I am grateful. I am grateful for the support of the House in reaching that point.