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Health and Social Care Bill

My Lords, subsections (1) and (2) of new Section 45D in Clause 114 of the Bill provide a safeguard in the domestic regulation-making power. That safeguard requires that where an appropriate Minister or decision-maker is imposing, or enabling the imposition of, a restriction or requirement, they must consider that the measure is proportionate to what is sought to be achieved by imposing it. Amendments No. 61 and 61B remove from this proportionality test the specification of who must consider the measures to be proportionate, and the point in time when that consideration must be made. Amendments Nos. 61A and 61C then require that any measure taken must be proportionate not only to the aim of the particular measure but also that each measure in itself must be proportionate to the overall threat. I have given these amendments a lot of thought, both now and in Grand Committee, and I am still of the view that these amendments would render the provision at best ambiguous, and at worst unworkable. I hope that I can set out why in a way that will convince noble Lords that we are better off with the provision as currently drafted. My first concern with these amendments is that, instead of the provisions requiring the Minister or decision-maker to consider the measure proportionate, the provisions would read that the measure must be proportionate. I sympathise with the intention to ensure objectivity in the test. However, it may simply not be possible, at the time that the decision must be taken, to be absolutely sure that the measure is proportionate to the risk it seeks to address. Such a test does not allow for occasions where the scientific evidence may be weak or where the threat is unprecedented and of an unknown nature. The noble Baroness, Lady Finlay, put it very eloquently in Grand Committee when she explained that the measures taken during the SARS outbreak in Hong Kong were ““taken in the dark”” because the true pathogenic nature of that organism was not known at the time. If the emergency nature of a situation requires that a decision be ““taken in the dark””, someone has to make that decision. As I explained in Grand Committee, simply deleting the reference to the person making the judgment that a measure is ““proportionate”” does not change the fact that such a judgment must be made. Measures are not ““proportionate”” to threats all by themselves; someone must judge them to be so. My second concern about these amendments is that they would mean that the measure taken must be judged to be proportionate not only at the point that the decision is taken but also at any given later time. They remove the idea that the proportionality test should be based on whether it was proportionate given the facts at the time of the decision. Instead, they would allow a court, in retrospect, and with further scientific evidence to hand, to look at whether the measures are still considered proportionate, and whether each measure, in and of itself, was proportionate to the overall risk. I have to say that the idea of such a retrospective second-guessing gives me grave concern, especially as the threat of such an examination with hindsight may discourage proper action from being taken at the time to protect public health. I hope that my noble friend Lord Dubs and the noble Earl, Lord Onslow, will understand my concerns and feel able to withdraw their amendments.