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?
I share the concerns of the hon. Member for North-East Hertfordshire about whether the clause is a toothless tiger and whether it has any force. Another aspect of subsection (2)(b) also worried me—the circumstances in which the Council on Tribunals could consent or in other words simply say, ''Yes; we do not need to be consulted.'' If the Government intend to give the council the option to say just a flat yes we will miss out on subsection (5), which is important. Once the council had been consulted, various reports would tell us what it thought, the extent to which the regulations met its expectations and so on. It would also be important to receive an explanation regarding any departures from the recommendations in the report.
I hope that the Minister can assure us that clause 24(2)(b) will be tightened up. We must remember that any tribunals set up under emergency regulations are set up in extreme circumstances. Tribunals should be available to cover most normal circumstances, so we are talking about a very special tribunal in that regard. Such a tribunal may be able to decide on the fate of flocks of sheep, for instance, which may be of great importance to individuals or to human health, in terms of vaccination, quarantine and so on. He should assure us that in such circumstances, there is no cop- out whereby the Council on Tribunals can say ''Go ahead'' without our seeing a report on its reasoning or on whether the regulations met its expectations. As I read it, subsection (2)(b) suggests that that is precisely what would happen.
May I remind the Committee that we are talking about the establishment of tribunals? I can understand the urgency associated with a forest fire or some massive disease that requires sudden and draconian action on the ground, but I cannot for the life of me imagine a circumstance in which the Minister would be dragged from his bed at three o'clock in the morning and told that he had to set up a tribunal and that it could not wait until after breakfast. The application of urgency in the context of setting up tribunals seems a bit more than is absolutely necessary.
I am also somewhat puzzled by the construction of subsections (2)(a) and (c). Paragraph (a) states:
''a senior Minister of the Crown may disapply subsection (1)''—
the consultation of the Council on Tribunals—
''if he thinks it necessary by reason of urgency''.
I cannot quite think what such a reason would be, and I suspect that even the Minister or Under-Secretary would be pushed to come up with an example. Paragraph (c) states:
''a failure to satisfy subsection (1) shall not affect the validity of regulations.''
Presumably, the only regulations to which a failure to satisfy subsection (1) can relate are those establishing a tribunal. To my mind, that negates the purpose of subsection (2)(a), which disapplies subsection (1) by reason of urgency. Paragraph (c) seems to suggest that the provision can be disregarded anyway, whether it is urgent or not, and that the tribunal that is subsequently established remains valid whether or not there has been consultation with the Council on Tribunals.
Subsection (2) is inelegantly drafted and the power is not absolutely necessary, and I hope that between now and Report the Minister might reconsider the clause and table some amendments.
I am always intrigued to know which provisions generate the greatest heat, and I hope that I can throw some light on the discussions. The hon. Member for North-East Hertfordshire started by asserting that it is never impossible to see beyond the decision of a Minister into their mind, so in the spirit of candour, let me share the rationale behind the clause.
I was relatively safely navigating my way through an appearance before the Joint Committee on the Draft Civil Contingencies Bill back in September, when the noble Lord Archer of Sandwell put a very specific question to me. He inquired whether I had considered consulting the Council on Tribunals. I was not aware at that point—although I became aware very shortly afterwards—that he was a former president of the council. When I returned to my Department after the rather uncomfortable questioning that I had received, I made inquiries about whether there had been consultation with the Council on Tribunals. It transpired that a meeting took place after my appearance to give evidence, and the statutory construction before us—the Bill that was duly published—reflects the statutory precedents that were provided in discussion with the Council on
Tribunals. As a Minister, I accept responsibility for everything, but responsibility for the inelegance of this particular provision may be shared between the council and ourselves.
That gives me the opportunity to deal with another substantive point made by the hon. Member for North-East Hertfordshire. Today, I have written a letter to the shadow Attorney-General, who has been in discussion with me, on the matter of Liversidge v. Anderson. Again, in the spirit of candour, it would be helpful if I explained the Government's thinking on that case law, which was quoted on Second Reading. I hope that that will prevent the same red herring from appearing any more prominently than it has done so far in the course of our discussions.
We have concluded that reasonableness is an absolute expectation of the actions of Ministers and a basic tenet of public law. That judgment is informed by the case of Liversidge v. Anderson and subsequent case law that was put to us on Second Reading. We are satisfied that it is now accepted that the dissenting judgment of Lord Atkin is good law and that the courts will inquire as to the reasonableness of a Minister's belief in the circumstances described.
Lord Bridge of Harwich, in Bryn v. Secretary of State for the Home Department, 1991, paragraph 1AC 696, in the House of Lords, emphasises the strength of judicial review and asserts that specific requirements in specific cases are best left to be absorbed by that general and all-embracing concept. The great weight that has been placed on Liversidge v. Anderson suggests that the issue haunts all tenets of public law in the United Kingdom and that they are not valid. The reasonableness test has been addressed in subsequent case law. The statutory construction of the provisions reflects the statutory precedents that were put to us by the Council on Tribunals.
The tribunal would decide whether the Council on Tribunals could subsequently be ignored under clause 24(2)(b), although I find it hard to envisage circumstances in which the council would consent in cases where the tribunal has no major role and no subsequent role in reviewing the position. Clearly, the matter would primarily be for the council.
Finally, the hon. Member for Orkney and Shetland challenged me to suggest circumstances in which it could be necessary urgently to establish a tribunal, as opposed to merely taking other actions. A tribunal that is set up to approve quarantining is one example; in the event of appeals against quarantining being made during a major infectious disease outbreak or another such civil contingency, people would expect a tribunal to be set up in a matter of days or weeks. The urgency of the situation would be dictated by the contingency in question.
The provision reflects the fact that we are trying to strike a balance between the need to move with great expedition and a recognition of the enduring role of the Council on Tribunals. However, I accept the hon. Gentleman's point about the vital caveat that Ministers would remain accountable to Parliament for any decisions taken in relation to tribunals or indeed actions taken under the regulations. We have adopted that approach to ensure that the regulations established in the tribunal have legal certainty, which is surely a matter that we can all agree on, and it would be inappropriate for the regulations establishing tribunals to be struck down months or indeed years after they have been set up. A fundamental question is what would then happen to the judgments made by tribunals in the meantime, and in that regard, it is important to bring the maximum degree of legal certainty to a tribunal's operations.
On duration—obviously, we are going to have a full debate on it in a moment—clause 25 provides that the emergency regulations shall last for 30 days unless they are renewed. Surely, it will take longer than that to set up a tribunal—or is that not the case? Is the Minister thinking that, as the firemen are going in or the Army is dealing with a terrorist situation, a tribunal will be set up almost immediately, within a matter of days? Furthermore, when the emergency regulations lapse, does the tribunal lapse at the same time? How does that work?
I return to one of my core propositions: it is difficult to anticipate every circumstance that could arise. We would certainly anticipate that, in the circumstances that I have described, it would be possible to establish a tribunal in respect of quarantine restrictions fairly quickly, but I do not wish to be drawn on how quickly a tribunal could be established without being clear as to what the particular circumstances are.
Although regulations create a tribunal, the Interpretation Act 1978 will not continue in existence a tribunal created by emergency regulations after those regulations collapse. It is therefore likely that further legislation would be needed to continue in existence any tribunal created by emergency regulation. That deals with the hon. Gentleman's substantive second question.
Question put and agreed to.
Clause 24 ordered to stand part of the Bill.