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Health and Social Care Bill

Before the noble Baroness decides what to do with her amendment, I have a question. Am I not right that if someone were minded to judicially review a decision under new Section 45D(1), the test would be whether the appropriate Minister had considered that the restriction or requirement was proportionate? That test does not say that the Minister must be satisfied, which is quite a strict test; it is simply a question of whether he or she considers that the restriction or requirement is proportionate. That is a pretty easy test to pass, whereas the noble Baroness’s amendment would be a stiffer test because it would be what the reasonable man or woman might say was proportionate to what was sought to be achieved. I do not want to put words into the noble Baroness’s mouth, but it seems to me that there is a distinct difference and that it is not right to say that it does not really matter what you have here and that someone has to make the judgment. It is true that someone has to make the judgment, but the test that a court would look at might be rather different.