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Legislative and Regulatory Reform Bill

I should like to express my gratitude to the noble Lord, Lord Norton of Louth, for putting his name to the amendment and speaking in support of it and to all other noble Lords who spoke in support of it. Some noble Lords spoke the other way. The noble Lord, Lord Borrie, was concerned that our proposals might increase the scope for judicial review. However, I do not think that that is likely. However it is phrased, those who are upset by a decision will be strongly tempted to apply for judicial review if the case is sufficiently important. With these amendments, those who object may be more likely to be successful. The noble Lord, Lord Stoddart of Swindon, raised a question of great importance; that is, who will take the decisions? Perhaps I may deal with that briefly. I hope very much that if the Bill goes through, Parliament or your Lordships’ House will block any attempt by Ministers to use it in circumstances where there is serious doubt about the propriety or legitimacy of doing so. However, that may not happen. It may not happen in the House of Commons because of a whipped vote which supports the order over the objections of the committee reporting on it. It may not happen in your Lordships’ House because our powers are reduced. But if Parliament is unable to put the matter straight then of course the burden falls on the courts through judicial review, and the question here is what test the court should apply. Should it be necessary for the objector to satisfy the court that the decision was not only wrong but so wrong as to be irrational, or is it sufficient to show that, looking at all the circumstances, the decision was simply wrong? The Minister said that this means that the decision of the Minister would not be political. I do not think for a moment that that is correct. It is not the politicality of the decision that renders it subject to being quashed. For instance, it is quite irrelevant that the opposition party might have taken a different view had it been in power and would not have taken such a decision. The courts will not quash an order simply on the grounds that it is political, but what they could and should look at is whether in fact the order would serve the purpose under Clause 1 of, "““removing or reducing any burden, or the overall burdens””." Here I speak without looking at the question of whether that provision is going to be amended. Further, looking at Clause 4, which is the subject of Amendment No. 50, the question the court should look at is whether the policy objective intended to be secured by the provision could have been satisfactorily secured by non-legislative means; does the provision remove any necessary protections and so forth? These are not political decisions but ones on the interpretation of the Bill. Further, owing to its special nature and the extraordinary power it gives to override primary legislation by secondary legislation, in the circumstances I believe it right that the decision should be a wholly objective one and not what I have described previously as a hybrid, semi-subjective one.