Clause 24 - Establishment of tribunal
Civil Contingencies Bill
3:00 pm
Mr Oliver Heald (North East Hertfordshire, Conservative)
This is a clause that I have some concerns over. I hope that the Minister may be able to allay them. On the face of it, the clause attempts to give a role to the Council on Tribunals in the setting up of one of the tribunals that we discussed this morning under emergency regulations. It seems to give with one hand and take away with the other.
Subsection (1) says:
''Emergency regulations that establish a tribunal may not be made unless a senior Minister of the Crown has consulted the Council on Tribunals.''
That sounds as though the council will be doing something. Then subsection (2)(a) says:
''a senior Minister of the Crown may disapply subsection (1) if he thinks it necessary by reason of urgency''.
We already know that there is no possibility of looking into the Minister's thoughts. As long ago as 1942, in the case of Liversidge v. Anderson, which was referred to on Second Reading by the hon. Member for Stone (Mr. Cash), it was established that these are matters of Executive discretion and not justiciable. It seems that a senior Minister of the Crown—as we know that includes the Whips—could say that there was not time and that would be the end of that. Clause 24(2)(c) states:
''a failure to satisfy subsection (1) shall not affect the validity of regulations.''
The regulations would be in place even if the Minister or Whip had got it wrong by saying that they did not think that there was time for consultation.
Then we come to section (3):
''Where the Council on Tribunals are consulted by a senior Minister . . . the Council shall make a report''.
It goes on to state in paragraph (b) that
''the Minister shall not make the emergency regulations to which the consultation relates before receiving the Council's report.''
One would think that that may be a case where the council has some power and its report matters. However, section (4) states:
''But . . . a senior Minister of the crown may disapply subsection (3)(b) if he thinks it necessary by reason of urgency''.
Again, we cannot look behind his thoughts because, as Liversidge v. Anderson established, it is a matter of Executive discretion and Ministers can do as they like.
Subsection (2)(b) states:
''subsection (1) shall not apply where the Council on Tribunals have consented to the establishment of the Tribunal''.
The purpose of subsection (1) is to persuade Ministers to consult the Council on Tribunals. One must ask how the council can have consented if it has not been consulted. The clause is curious and somewhat confusing, although perhaps just to me. Will the Minister explain whether the Council on Tribunals has any significant role to play in proceedings or whether it is just a bit of window dressing?