§ 11.32 a.m.
§ Lord Bassam of Brighton
My Lords, I beg to move that the House do now again resolve itself into Committee upon the Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 20 [Power to make emergency regulations]:
§ [Amendment No. 99 not moved.]
§ Lord Archer of Sandwell moved Amendment No. 100:
§ Page 14, line 15, at end insert "necessary"
§ The noble and learned Lord said: Following our more passionate debates earlier in the week, this promises to be rather a tranquil episode—at least by the time the Chamber has emptied.
§ These exploratory amendments are intended to provide my noble friend with an opportunity to explain to me that I am guilty of a misunderstanding. They relate to what appears to be a logical eccentricity in the Bill. At Second Reading, I invited my noble friend Lord Bassam to explain it. Wisely, he dealt with the situation by promising an explanation at a future time. Of course I do not complain at that; it is always wise, if the batsman is uncertain, to see whether he can get away without playing a stroke. But my puzzlement remains intact.
§ Clause 22 authorises the making of regulations for certain purposes. Clause 20(5) includes as a condition precedent that the person making the regulations should confirm that the regulations are restricted to the purposes specified. I have no problem with that, if that is what the drafting is intended to achieve, but it is not what the Bill says. Clause 22 says that the 930 provision in the regulations must be for what the person making them "thinks" is the purpose. Clause 20 requires that the regulations must be for what he or she is "satisfied" is the purpose. So the criteria relate not to the purpose of making the regulations but to what the person making them "thinks" is the purpose or is "satisfied" is the purpose.
§ The purpose of a regulation must be the purpose in the mind of the person who makes it. You cannot have a purpose which is not a purpose in someone's mind. A purpose is a mental event; you cannot have a purpose in the abstract. It must be in the mind of the person who seeks to implement the purpose. But if the purpose is in the mind of the person who makes the regulations, that person must know what the purpose is. How can it make sense, then, to speak of what he or she "thinks" is the purpose? Can we imagine a Minister saying, "I am making this regulation; I think my purpose in doing it is so-and-so, but I am not sure"?
§ We encounter the same oddity in Clause 23(1), where regulations may make provision only if the person making them "thinks" that he is doing so for one of the specified purposes. I do not pretend that there is any great matter of principle at stake, but surely it is important that legislation should be intelligible. It is part of the function of your Lordships' House to protect the statute book from nonsense. I wonder what Lewis Carroll would have made of it; hence this amendment. I beg to move.
§ Lord Elton
I wonder what the purpose is of bringing the person making the regulations into it at all. It would surely satisfy the test that the Committee wants by simply saying, "provided that the regulations contain only provision which is necessary for the purpose". We should leave out this judgmental, dubious, unknown, anonymous person with great power in the future.
§ Baroness Buscombe
I concur with my noble friend but also support very much the words of the noble and learned Lord, Lord Archer.
§ Lord Garden
I also support the amendment tabled by the noble and learned Lord, Lord Archer. It seems very sensible and something that the Government ought to be able to give on.
§ The Minister of State, Home Office (Baroness Scotland of Asthal)
Our view is that this amendment is not necessary, but, if I may respectfully say so, I have very much enjoyed the exposition on it by my noble and learned friend Lord Archer. I shall explain how the clauses work together. I hope that Members of the Committee will find that we have entered into more tranquil waters with these amendments.
Clause 20(5)(b)(ii) ensures that regulations can be made only for the purpose of preventing, controlling or mitigating an effect of that particular emergency. Clause 21(3) ensures that emergency powers can be made only where the person making them is satisfied, 931that it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect … of the emergency".Clause 20(5)(b)(iii) requires that,the effect of the regulations is in due proportion to that aspect or effect of the emergency".The public law test of reasonableness applies to those making decisions on those requirements.
The effect of these is to ensure that any use of the emergency powers must be necessary and proportionate in the prevailing circumstances. The Government accept that a number of the preconditions to the making of emergency powers require the exercise of judgment. It is difficult to conceive of appropriate limits on the exercise of emergency powers that would operate in a more objectively verifiable way. The limits which related to, for example, the area affected or the number of people affected would be easier to verify but would make the exercise of emergency powers inflexible and mechanistic. That is why it has been expressed by the draftsman as requiring that they "think" that it is so. It is subject to the reasonableness test, too. The determination by the regulation-maker that the preconditions for use of the emergency powers are satisfied will be subject to review on the reasonableness grounds in the normal way. I hope that Members of the Committee will see therefore that that is why the drafting is expressed as being that the maker -thinks" that this is so.
The exercise of emergency powers would be challenged on several other grounds. In particular, regulations can be challenged on the ground that they are incompatible with convention rights. If convention rights are at issue, the court is likely to adopt a heightened standard of review.
Although I enjoyed the exposition by my noble and learned friend, I think that the way in which the Bill is drafted enables us to have the matter reviewed, if necessary, in a way that makes sense. I am happy to go back to the draftsman to see whether there is a more elegant way in which it can be expressed, but I do not think that it is inaccurately expressed now.
§ The Earl of Onslow
We do not wish for elegance: we wish for clarity. I may be fairly thick—I am perfectly prepared to concede that—but I found the arguments in all those subclauses incredibly complicated.
What my noble friend Lord Elton said was crystal clear and precise. That is the sort of thing that always ought to be in legislation—not convolution, however elegant or beautifully expressed. Legislation should be clear and precise.
§ Lord Archer of Sandwell
I am grateful for noble Lords' contributions. I appreciate that those who prepared my noble friend's brief had not had the opportunity of hearing what I said a few moments ago. Most unusually for my noble friend, she did not address the point that I was making.
I was not suggesting that the Government were trying to slip something past us to produce a great increment in their power; I was simply saying that, as 932 the clause reads, it is nonsense. I am grateful for the offer that my noble friend made a few moments ago. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 20 agreed to.
§ Lord Lucas moved Amendment No. 100A:
§ After Clause 20, insert the following new clause—