---

Health and Social Care Bill

New Section 45D(1) and (2) insert a safeguard into the domestic regulation-making power. That safeguard requires that where a person is imposing a restriction or requirement they must consider that the measure is proportionate to what is sought to be achieved by imposing it. Amendments Nos. 163 and 164 would remove from the provisions the fact that the person must consider it proportionate; instead, the provision would read that the measure must be proportionate. However, simply deleting the reference to the person making the judgment that the measure is proportionate does not change the fact that such a judgment has to be made by someone. Measures are not proportionate to the threat by themselves; someone must judge them to be so, as the noble Baroness, Lady Finlay, eloquently explained. The amendment would force the person making the decision not only to consider whether he thought it was a proportionate thing to do, but also whether he thought every other person would also believe it was proportionate. How could he decide that with any certainty? For example, during the SARS outbreak in Canada, an entire hospital was closed and all the staff placed in working quarantine. People not yet infected with SARS were placed in quarantine along with people that were. Was that a proportionate measure? With hindsight, the World Health Organisation said that it was control measures such as those which stopped the SARS infection spreading. The person making the decision under new Section 45D must be reasonable and properly informed. That is the law. Amendments Nos. 164 and 165 also seek to elaborate the factors to which the measure must be proportionate. The amendments require the measure to be proportionate not only to its own aim but also to the risk or threat that it is intended to address. There are two problems with that. First, the Minister or other decision-maker may not know the extent of the threat at the time when the decision must be made. However, because the decision may have to be made in the absence of firm evidence of the extent of the risk, it may be impossible at that time to be sure that the decision-maker has chosen proportionate risk at that time. There was a very helpful explanation from the noble Baroness, Lady Finlay, about that. Secondly, and in some ways more importantly, the measure is likely to be one step in a suite of measures aimed at removing or reducing a risk. In and of itself, the measure may not be proportionate to the magnitude of the threat. I hope that in the light of those explanations the noble Baroness, Lady Stern, will feel able to withdraw the amendment.