| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
I therefore think that fast-tracking is of particular concern to this House because, whereas there is no guillotine procedure on Bills in this House, when the Government seek to fast track, they can fast track in both Houses, although, as our report demonstrates, there were cases when Bills were fast tracked in the other House but not here. The infamous Dangerous Dogs Act was a case in point. Nevertheless, the Government have power through fast-tracking to constrain debates and scrutiny of legislation in this House. Therefore, this House should be particularly squeamish and vigilant in deciding how or when it should approve such a process. A compelling case must be made for fast-tracking in this House, given our history of refusing to have limitations on our legislative processes and debates.
That is why central and key to the committee's recommendations is that the case for fast-tracking must be scrutinised by this House-not the Bill itself, but the case for fast-tracking. As the noble Lord, Lord Goodlad, spelt out, our central proposal and the key to the report is that an Oral Statement be made when the Bill is introduced-not at Second Reading, but when the Bill is introduced-spelling out the Government's case for such action being taken. It is fundamental to our proposals that the Government can be scrutinised on the case for fast-tracking. We state that we do not believe that it should be part of any Second Reading debate. Traditionally, Ministers have made the case during a Second Reading speech, but we think that that should be separated from the case for fast-tracking itself. An Oral Statement of the kind mentioned by the noble Lord is central to our report.
The eight tests in paragraph 186-the noble Lord, Lord Goodlad, spelt them out, so I do not need to repeat them-should be the litmus test by which the House can judge whether the Government have made the case for fast-tracking. As that is central to our recommendations, I ask my noble friend to clarify the Government's response to it. The Government's response states:
"The Government firmly believes that all members of both Houses are entitled to a full explanation of why a piece of legislation is being proposed for fast-tracking, and we would expect to be held to account for its timetabling. Ministers remain prepared to justify the need for any expedition to the House, including covering those issues set out in the Committee's Report".
Does my noble friend accept what we are asking from the Government: the acceptance of the principle of a procedure by which an Oral Statement is made before the House at the time of First Reading? The Government's response states that we are entitled to a full explanation. How will that explanation be delivered? Our recommendation that that explanation is delivered by an Oral Statement is central to our report. We hope that the Government will respond positively.
Most of the Government's responses are positive and sympathetic to our report, but I should like my noble friend to clarify that. What is the means by which a full explanation will be given for why a Bill is proposed for fast-tracking? How will that be brought to this House? Does she accept, as I dearly hope she will, that it should be in the form of the Statement that our committee recommends?
I briefly comment on Northern Ireland, on which we dwelt for some time, and, in particular, on the Bill that came before the House when we were dealing with
10 Nov 2009 : Column 729
Finally, I turn to post-legislative scrutiny. It came as a great surprise to us that, despite hearing from all our special witnesses, almost no work or research has been done on the effectiveness, workability and quality of fast-track legislation. We looked at one or two examples, but we did not have the opportunity or the capacity to decide whether fast-track legislation is producing good legislation or whether it is, as many witnesses said but could not confirm, producing potentially bad legislation-unworkable or redundant legislation. We could not find that out. Therefore, one of our strongest recommendations is that there be post-legislative scrutiny of Bills passed by the fast-tracking process, so that from now on, we-the House and Parliament-can, when we agree to a fast-track piece of legislation, track whether it subsequently does what it was claimed it was going to do and proves to be effective, or whether the haste of pushing it through has meant that defects and difficulties arise. Can my noble friend confirm that, as the Government's reply suggests, they are in favour of scrutiny after one year or two years? The principle that all fast-track legislation should be the subject of post-legislative scrutiny is extremely important.
I believe in the safeguards that this report offers on fast-track legislation. In the circumstances we know there will be in future, when Governments will seek the power to fast-track legislation, if we have safeguards of this kind, at least we will know that we will still be able to fulfil the sacred duty of effectively scrutinising legislation.
6 pm
Lord Lyell of Markyate: My Lords, I am very happy to follow the noble Lord, Lord Rowlands, and agree with his last point. I thank my noble friend Lord Goodlad for his outstanding exposition of what our committee has been setting out and for the clear principles that he has laid down.
I have an awful feeling that I am expressing pious hopes. We have been here before. Fast-track legislation in one form or another has found its place more often in recent years, and I do not talk about just the past 12 years. There was a certain amount of it in the years before, and there is no profit in going tit-for-tat about in which years there was more. However, we have to be extremely careful about it.
It is ironic that in the middle of our inquiry, there were two pieces of fast-tracked legislation. One was the Northern Ireland Bill 2009, for which one had some sympathy, as there has been continuing difficulty in the unfolding of the peace process. Like the Leader of the House, I hope that it is the last piece in the
10 Nov 2009 : Column 730
We rushed through the legislation, and one can understand the political-or perhaps the press-pressures that caused that, but when the process had gone through both Houses of Parliament in a few weeks, we moved to a position where Sir Christopher Kelly took some months-he has been fairly quick-and it now passes to the Independent Parliamentary Standards Authority and Sir Ian Kennedy. We are told that this further process with, quite rightly, consultation and so on will take many more months and will probably carry us through the election. The right way round was for us to have deliberated longer and more carefully because for all the obloquy and opprobrium that Parliament has partly brought upon itself and partly had heaped upon it, Members of both Houses know a great deal about this problem, and it is right that they should have had an opportunity to express their views and have them taken into account. One hopes that they will be taken into account in the consultation process, but that is not the same as the scrutiny that can be provided in the Chamber of this House and in the other place.
Fast-track legislation is not unique in raising problems. There has been a growing problem in all legislation in recent times. I go back, but I think it has been a growing problem in the past 10, 12 or 15 years; certainly the past 10 or 12, but I hope that is not too party-political. One has seen that in the other place many Bills have been significantly truncated. There just has not been time, particularly for their Report stages to be properly completed. Bills have come to this House with quite large portions that have not been properly debated on Report. I am full of admiration for the scrutiny of noble Lords, and this House has managed to repair a good deal. There are some wonderful examples, such as the Bill that has just passed, where there has been a constructive process.
I am a little cautious about post-legislative scrutiny. The points made about it on fast-track Bills are well made. I sat on the rather hasty pre-legislative scrutiny of the bribery Bill that will, no doubt, come before this House in the next Session, although I wonder whether it will have time to get through. Although there are some advantages to pre-legislative scrutiny and post-legislative scrutiny, the key point is legislative scrutiny in Committee, whether on the Floor of the House or in a committee room, on Report and at each stage of each Bill. Legislative scrutiny, when the whole House brings its mind to bear, is the real constitutional safeguard. I hope that that will always be kept in mind.
10 Nov 2009 : Column 731
Finally, I strongly support there being a presumption that fast-track Bills should have sunset clauses. No doubt the Minister will say a word or two about this. The Government were cautious in their response about this and seemed to say that it should be decided on a case-by-case basis, but I hope that she will be able to go a bit further and say that the normal presumption will be to have a sunset clause unless there is a powerful reason not to have one.
6.07 pm
Lord Morris of Aberavon:My Lords, my term of service on the Constitution Committee is also coming to an end. I have found it exceedingly challenging and have enjoyed it enormously. I, too, want to thank the noble Lord, Lord Goodlad, for his splendid chairmanship, from start to finish. As a Member of the Committee, I obviously welcome the inquiry into the procedure on fast-track legislation, as I was a party to it. With regard to this investigation and others, I would also like to thank our legal adviser Professor Le Sueur. We could not have been better served. I believe our report is a measured report that has elicited a measured response from the Government. I thank the Government and the Leader of the House for that.
We tried to examine our practice and procedures on fast-tracking. As parliamentarians, we are all wary of fast-tracking, of not carrying out the usual scrutiny of any legislation. I shall give one example of why I am wary from my experience in the only piece of fast-tracked legislation in which I was involved. It was the Criminal Justice (Terrorism and Conspiracy) Act 1998, which followed the appalling tragedy in Omagh. The driving force was that something had to be done and had to be seen to be done. That syndrome is behind so much fast-track legislation and was not unique to that Bill. Let me remind the House that we were all summoned back in the middle of August. I attended the Cabinet Committee, which had also been hastily summoned, to consider the Bill that we would shortly put before the House.
Two questions arise about the Bill. The first question relates to the amount of time that Parliament had to consider it. The House of Commons sat right through the night. I sat next to the Home Secretary, and we heard every point being raised and every point being admirably replied to. However, considering a Bill on a very warm night in August, with just two days to go through the whole of it, certainly had its disadvantages, to put it mildly. The second question is more important; it concerned the time that the Government had, since it was felt that something had to be seen to be done, to prepare a sensible Bill. Much of the material, thank God, must have been on the stocks beforehand.
I became aware in the course of the Commons' deliberations that there was something wrong about a principle whereby a person could be convicted of being a member of a proscribed organisation on the word of a senior police officer. I cannot recall whether that point was actually debated. It probably was not-there was no time in those two days to consult more widely-but it soon became apparent to me in later conversations with those who were responsible for the law in Northern Ireland that it was extremely unlikely that that provision would ever be used.
10 Nov 2009 : Column 732
I was the Attorney-General both for Northern Ireland and for England and Wales at the time. In any conversation that I had after the Bill had been passed, judges and others made it clear to me that if the opinion was tendered before a jury, or in those days more likely a Diplock court, the judge-any judge-would ask whether there was any supporting evidence. Because of the obvious difficulty of disclosing intelligence, that additional supporting evidence could not be given. As a result, this provision has never been used. It has been considered for use, but no prosecutor in Northern Ireland ever brought a case before a court on this evidence. No harm was done, but it is an example of rushed legislation and, in the event, of ineffective legislation that cannot be used. Those are the inherent and obvious dangers. Those are my views of what I was involved in. I know what happened, and I wish in retrospect that I had thought about this point in the few hours that we had to consider the Bill and to explain it to the House.
The other point that I wanted to make has already been made by the noble Lords, Lord Goodlad and Lord Rowlands. As they said, the report's key recommendation is that the Minister responsible for a Bill should be required to make an Oral Statement to this House outlining the case for fast-tracking. We recommend that the details of that Statement should also be set out in a Written Statement included in the Explanatory Memorandum. The parliamentary time allocated for the Statement should in no way impinge on the time available for considering it. We recommend a stand-alone Statement. That is fundamental to our conclusions.
We set out eight principles, which I will not go over-a shopping list which it should be the Minister's task to ensure is included in the justification for the Bill. We recommended that if the House judged that any of the principles had not been met, it should not support a Motion to suspend Standing Order 47 in the limited circumstances in which it applies.
The Government-I thank them most sincerely for this-seem to accept our views in principle. The noble Lord, Lord Rowlands, has asked some very important questions, and I am sure that the Minister will want to face the challenge that he has set. The Government say in their response:
"Ministers remain prepared to justify the need for any expedition to the House, including covering those issues set out in the Committee's Report".
That obviously means the eight principles that we advocate, and I welcome that. However, the Government have not responded to the point probed by the noble Lord, Lord Rowlands, that not only should there be a standalone Oral Statement but that Statement should be endorsed and included in the Explanatory Memorandum to the Bill. Will the Minister confirm that there will be both an Oral Statement that stands alone and a Written Statement so that the House can, in a very short time, consider the implications of the Government's case?
There will always be a temptation for any Government to try to stem public outcries, and there will always be a need, as I have said earlier, to be seen to be doing something. There is no definition of fast-tracking. Indeed, I quickly realised that it would be a complete
10 Nov 2009 : Column 733
In general, the Government's response is to be welcomed, but our report highlights the need for restraint. Such legislation, particularly in the case of Northern Ireland where it had become a habit-for very good political reasons, I hasten to add-should be an exceptional approach. I very much enjoyed hearing the evidence. Even if we could not come up with a definition of what we were talking about, we all knew exactly what we were dealing with, and I believe that our report will be helpful in the future. I very much hope that the Government can fill in the two details which the noble Lord, Lord Rowlands, and I have stressed.
6.18 pm
Lord Norton of Louth: My Lords, I, too, congratulate my noble friend Lord Goodlad on securing this debate and on the way in which he has presented the Constitution Committee's report. I also pay tribute to the way in which he has led the committee, not least in producing this important report.
Scrutinising government legislation is a key task of Parliament and arguably the principal task-it is certainly the most time-consuming task-of this House. Where government seek to expedite the passage of legislation, setting aside the normal rules of each House, the need for vigilance is acute. As we have heard, all Governments have sought to expedite, or fast-track, legislation. Despite the extent of fast-tracking, what is remarkable is the lack of serious studies of that experience. The committee's report is therefore valuable for the material that it makes available.
As the report makes clear, the reasons for expediting the passage of legislation are varied. The need to fast-track a particular measure is sometimes clear, but needs differ and, as the report details, there was no agreement among the witnesses as to the circumstances in which it is considered constitutionally acceptable to fast-track legislation. However, as my noble friend Lord Goodlad has detailed, the committee was able to identify five constitutional principles that should underpin the consideration of fast-track legislation. These formed the basis of the committee's review.
As a member of the committee, I fully endorse the recommendations. The case for them is, I believe, carefully made in the report. In the time available, I want to comment on the Government's response to the report, their response to the committee's report on a fast-tracked Bill, the Parliamentary Standards Bill, and to add a recommendation of my own to those put forward by the committee.
I start with the Government's response, which welcomes the report and endorses the need for self-restraint by the Government, but it carefully avoids accepting any
10 Nov 2009 : Column 734
Let us consider late amendments. Late amendments to Bills can constitute a form of fast-tracking legislation. We are told that the Government.
- "will continue to pursue efforts to limit the number of late amendments tabled that do not fall into this category".
That is, concessions to points raised earlier in proceedings. This is not encouraging, since it is based on the premise that the Government already pursue efforts to limit the number of late amendments. All we are offered is a continuation of present practice. Given the number of late amendments that continue to be tabled, it is not something from which we can take encouragement.
That is fairly typical of the response, which either commits to continue what the Government already do, based on the presumption that they are exercising self-restraint, or adopts a technique of avoiding the committee's recommendation. This latter approach is employed in respect of the recommendation that there should be a presumption in favour of sunset clauses. The committee recognises that there will be cases where such clauses cannot be employed. The Government respond by stating:
"Whilst on occasion a sunset or renewal clause is deemed necessary, the Government believes this must be approached on a case-by-case basis. The uniform inclusion of a sunset clause also has the potential to force Parliament to legislate to a timescale that may not be appropriate to the issues involved".
The Government offer no explanation as to why there should not be a presumption in favour of a sunset clause. Their dismissal of a,
is irrelevant, as the committee made no recommendation of a uniform inclusion. The case for the presumption of a sunset clause is made clearly and cogently in the committee's report, but the Government make no attempt to engage with it.
A similar technique is employed in response to the recommendation on post-legislative scrutiny. As we have already heard, the committee recommends that there should be a presumption in favour of an early review of fast-track legislation; that is, within one or possibly two years. The Government state:
"In many cases the full implications of an Act will not be understood one year after Royal Assent".
They do not say that in most cases the full implications will not be known, which is what they would have to argue in order to dismiss the recommendation for the presumption in favour of early review. Furthermore, the only example the Government offer, the Parliamentary Standards Act, is not the most compelling. Even if there is not a formal review of the measure within two years, I suspect that there will be several informal reviews of its effect. Indeed, it is not beyond the bounds of possibility that we will see an amending Act within that period.
The Government's response thus falls short. It does not engage directly with the committee's recommendations. It is based on the premise that the Government already
10 Nov 2009 : Column 735
If the Government's response to this report falls short, so too does the Government's response to the most recent report of the committee on legislation that was fast-tracked; that is, the Parliamentary Standards Bill. The letter from the Justice Secretary in response to the committee's 17th and 18th reports of this Session illustrates why the present position is untenable. The committee criticised the Government's approach to fast-tracking the Bill, arguing that this was not the most appropriate way to legislate on matters which raise complex constitutional and legal issues and that, because of the timescale, there was a lack of public consultation and limited opportunities for parliamentary scrutiny. Mr Straw writes:
"This assessment does not fully take account of the imperatives of the situation we all faced".
Another way of describing the "imperatives of the situation" is to be found in paragraphs 47 to 49 of the committee's report on fast-tracking. It is known as the "something must be done" syndrome. The noble and learned Lord, Lord Morris of Aberavon, has already referred to it. The committee quotes Sir John Chilcot who, in his evidence, recounted the experience of Lord Jenkins of Hillhead, who, reflecting on his career,
- "said that the best headline he ever had ... was simply 'Jenkins acts'. It did not say what he had done or why or to what effect, but that he acted. That in his judgment-and he was not entirely flippant-was part of the purpose of things politically".
| Next Section | Back to Table of Contents | Lords Hansard Home Page |