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Legislative and Regulatory Reform Bill

My Lords, I have always accepted that the subjective test is a real test but, equally, it is plainly not as strong a test as an objective test. The Minister has based a good deal of his argument on the proposition that the amendment would enable the courts to override a Minister and Parliament, but they can do that anyway. It has always been recognised that secondary legislation can be quashed even if it is an affirmative instrument which has received parliamentary attention. This goes way back in history because only primary legislation is exempt from review by the courts. So, therefore, whether or not these amendments are accepted, the judges will have potentially the ultimate decision. We are concerned here with a much more limited question—that is, whether the test should be a subjective or objective one. For the reasons I gave in opening the debate on these amendments, I believe that it should be an objective test. I wish to take the opinion of the House. On Question, Whether the said amendment (No. 1) shall be agreed to? Their Lordships divided: Contents, 103; Not-Contents, 116.