Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.Donate to our crowdfunder
That is an important point. If there were a challenge to ministerial action, it is possible that there would be an attempt at judicial review, but what would be the test applied by the court? Without the word "reasonably", the only test that the court could apply would simply be whether it was true that the Minister indeed considered that the measure was lifting a burden. It would be difficult for a court to get behind a ministerial statement to that effect unless there was clear evidence that what the Minister was saying was not true, or was unbelievable. It is all too believable that a Minister might believe that trial by jury imposed an administrative or financial burden and should be abolished.
The same point applies to the insertion of the word "reasonably" in clause 3. Throughout the debates on the Bill, Ministers have pointed to the protections in clause 3 as a way of deflecting criticism about the removal of necessary rights and freedoms. There has been a debate, or perhaps a lack of understanding, between opposite sides of the House about what those rights are and which of them are necessary. Labour Members were concerned lest Ministers remove rights such as those relating to the minimum wage under the Bill, but Ministers have told them that under clause 3 those rights are "necessary protection". The problem with that is: who says that they are necessary protection? The answer: the Minister—subjectively. Were Mr. Redwood the Minister, he might have a different view and consider the matter differently from the present Minister.
Conservative Members were keen to emphasise that a different sort of right was necessary and the Minister tried to reassure them in the opposite direction. The Minister's defence of the Bill has run the risk of contradiction on a number of occasions.