My Lords, I too welcome these amendments, which introduce judicial control. The Government have listened to the Constitution Committee and the independent reviewer. They have also listened to the observations made from all sides of the other place and indeed here at Second Reading.
The noble Baroness, Lady Ludford, raised a concern about paragraph 3(2) in the proposed new schedule set out in government Amendment 44 and the reference to whether the decision is “obviously flawed”. I draw her attention to the fact that its paragraph 5(1) states that:
“In determining a reference under paragraph 3, the court must apply the principles applicable on an application for judicial review”.
So my understanding—I would welcome the Minister’s confirmation—is that when the court asks whether the decision itself is obviously flawed, it will apply the principles of judicial review. It will ask whether the decision has been made on a lawful and proportionate basis, for a proper purpose and other matters of that sort, although of course the court will not look at the merits of whether a lawful decision has been made.
There is one other matter to which I draw attention in the schedule being introduced by government Amendment 45. Paragraph 5 of the proposed new schedule expressly confirms that:
“Nothing in paragraphs 2 to 4, or in rules of court … is to be read as requiring the relevant court to act in a manner inconsistent with Article 6 of the Human Rights Convention”.
That is very important indeed and I welcome the fact that the schedule expressly confirms that the court should comply with Article 6. I ask the Minister to tell me if I am wrong, but I am not aware of anything in the Bill which suggests that the courts, in exercising their judicial control powers, should be required to depart from our obligations under the human rights convention, and indeed the noble Lord, Lord Bates, has made a statement on the front page of the Bill under Section 19(1)(a) of the Human Rights Act 1998 that in his view the provisions of this Bill,
“are compatible with the Convention rights”.
I hope that that will give some further reassurance to those who are concerned about these powers.