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In response to the crisis over Members' expenses, the Government had to be seen to act. Indeed, the Leader of the House justified the Parliamentary Standards Bill on the grounds that:
"The public want action and they want it now".-[Official Report, 8/7/09; col. 752.]
Lord Jenkins would have recognised the approach. Time was claimed to be of the essence. Although the Bill ended up being less bad than it was on introduction, thanks in very large measure to the work of the Constitution Committee, I am not persuaded that the "imperatives of the situation" justified laying aside our normal procedure. I concur with my noble and learned friend Lord Lyell. Current events suggest that it may have been better to have avoided rushing the measure through.
Given the deficiencies of the Government's responses, I invite the Minister, as several other noble Lords have done already, to revisit what the committee has said, not least its recommendation at paragraph 184; that is, that a Minister should be required, at the time that the Bill is introduced, to make an Oral Statement to the House outlining the case for fast-tracking and addressing the questions listed in paragraph 186. That will ensure that the Government address the case for fast-tracking and on a consistent basis. It will impose a useful, I would suggest a necessary, discipline. It will be helpful if the Minister in replying to the debate places on record the Government's commitment that such a statement will accompany each Bill that is fast-tracked.
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I conclude with an additional recommendation, one that is not embodied in the committee's report. The committee notes that it is open to any Member to seek the opinion of the House when the Motion to suspend Standing Order 47 is moved. As the Government point out in their response, the standing order is suspended only where the timetable would require two stages to be taken in one day. There is clearly an issue where the Government seek to reduce the usual gap between the stages of a Bill, but without taking two stages in a single day. Notice has to be given, but no suspension of Standing Orders is involved. It is possible to move an amendment to a committal Motion, as I did on the Parliamentary Standards Bill, in order to provide that the usual gap between stages be maintained, but as the Leader of the House said on that occasion,
I suggest that it ceases to be unusual territory. I believe there is a case for embodying in Standing Orders the gap between stages. That would mean that the Government would have to move a Motion to suspend the Standing Order in order to condense the stages. It would thus be open to any Member to object. The onus would thus be on Government to make a case for shortening the process, rather than on a Member to bring forward a Motion, or rather an amendment, to make the case for maintaining the usual gap between stages.
We could go one step further and learn from the procedure in the other place in respect of closure Motions. For a closure Motion to be carried, there must not only be a majority in favour of the Motion, but at least 100 Members voting "aye". We could impose a similar provision, a stipulated number who must vote "content", for any Motion to suspend Standing Orders. That would ensure that the suspension of a Standing Order enjoyed clear and strong support in the House.
We take our responsibility to scrutinise legislation seriously. We commit considerable time and resources to it. It is imperative that all legislation is subject to rigorous scrutiny, even if there is a case for expediting its passage. We need to assure ourselves that the case for fast-tracking legislation is clearly made and that we have mechanisms in place to ensure such scrutiny. Without such procedures being embedded, we run the danger of being carried along with the "something must be done" mentality. Simply saying that we should look at fast-tracked Bills on a case-by-case basis is not sufficient. We need to be vigilant and we need procedures in place to ensure that we are.
6.30 pm
Lord Parekh: My Lords, like noble Lords before me, I too begin by thanking the noble Lord, Lord Goodlad, for chairing the committee and introducing the report with the clarity that one has come to expect of him. I feel slightly strange in that I seem to be the only person who is not a member of the committee to be speaking in the debate. On one level I feel like an intruder, while on the other I feel that I have a greater responsibility to speak because we have been talking about the scrutiny of legislation, and therefore someone
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The report sets out the basic issues with great clarity and I am persuaded by many of the arguments made in support of them, but I am a little surprised that when it discusses legislative bodies outside the UK, it concentrates primarily on Canada, Australia and New Zealand. I would have liked some information on how the United States and our partners in the European Union handle this issue. No doubt their legislative systems are different from ours in ways that those of Canada, Australia and New Zealand are not, but that is precisely their attraction, and we might be able to learn something from their experience. Even if we were to limit ourselves to those countries whose legislative systems are similar to ours, I would have liked further information on how countries like India and South Africa deal with issues of this kind. If a similar occasion arises again, I might be able to offer some ideas based on the experiences of those countries, particularly on how to reconcile the conflicting principles of close legislative scrutiny and the need for fast-track legislation.
We all agree that situations may arise when fast-track legislation becomes necessary. But while it may be necessary, it is also open to obvious dangers. The legislation is likely to be badly drafted and technically poor. It is also likely to invest government with powers the legacy of which might take years to overcome. The German scare of 1911 led to the Official Secrets Act. It was passed in a day and has taken decades to set right. Fast-track legislation is also open to another danger. It is a constant temptation to government to push things that are likely to curry favour with the electorate but which might prove in the long run to be damaging to our interests and honour. I am reminded particularly of the Commonwealth Immigrants Act 1968. It was passed with incredible, and as some newspapers said, indecent haste because a large number of east African Asians who were holders of British passports were beginning to come to this country. The legislation said that even though they held British passports, they were not to be allowed to enter. It tarnished Britain's name for years, which was held to be the only country that refused to honour its own passport, and it was five years before the European Court of Human Rights was able to declare that the Act had violated human rights, but in the mean time thousands of east African Asians had suffered.
The further danger of fast-track legislation is that it encourages political lobbies to whip up a public outcry in order to get things done that otherwise might not be done. Fast-track legislation also often has a knock-on effect on the rest of the legislative programme, either by delaying it or by causing it to be subject to less rigorous scrutiny. The record of fast-track legislation is rather mixed, with more on the negative than on the positive side. I shall not talk about the well known Dangerous Dogs Act 1991, but I have already given the example of the Commonwealth Immigrants Act, the Child Support Act 1991 and, more recently, the Parliamentary Standards Bill, which was hastily
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Given the fact that fast-track legislation is necessary but also that it is open to obvious dangers, we need ways in which to regulate such legislation. How? Broadly I agree with what is set out in the report, but I want to make four or five important points. First, it is important that fast-track legislation should be a measure of last resort. It must be intended to come into effect immediately upon enactment, otherwise the point of it is lost. Secondly, it must be concerned only with situations that demand immediate action, and it should not be used to smuggle in measures that the Government would like to see introduced but are not really relevant to the matter in hand. Thirdly, as my noble friend Lord Rowlands and my noble and learned friend Lord Morris of Aberavon have said, the Minister responsible should make an oral Statement explaining why the fast-track legislation is necessary. The contents of that Statement should also be set out in a written memorandum to be included in the Explanatory Notes.
Fourthly, the Bill should be subjected to as much pre-legislative scrutiny as possible. Although it is fast-track legislation and therefore the amount of scrutiny will always be limited, we recognise that every Bill has to have the approval of the Joint Committee on Human Rights to show that it does not conflict with the Human Rights Act. This means that there is always time for some form of pre-legislative scrutiny, and therefore I cannot understand why even the fastest of fast-track legislation should not be subjected to pre-legislative scrutiny.
I have mixed views about sunset clauses and I think that the Government are right to argue that, rather than make them a point of general principle, they are best dealt with on a case-by-case basis. This is what happens in some of the countries with which I am familiar. But there is a great deal to be said for post-legislative scrutiny. When an Act has been passed in the fastest possible manner, there is always the danger that it will set a precedent, and that precedent may become the reason for introducing other forms of bad law. After the emergency has passed, there must be a way in which we can step back and review whether the law was necessary and should be continued. Therefore some form of post-legislative scrutiny is necessary so that we can decide after a reasonable length of time whether it should be renewed, continued or repealed.
6.37 pm
Lord Shaw of Northstead: My Lords, as the noble Lord, Lord Parekh, has just said, we must all accept that from time to time circumstances arise where, in the national interest, the demand for what we have termed in this report "fast-track legislation" is justified. But when such circumstances arise, it is essential that everything is done to protect the usual safeguards for proper scrutiny that have been built into our normal procedures. While the organisation JUSTICE argued in its evidence to us that,
- "it is important that both the law and the law-making process are sufficiently flexible to address situations that require urgent action",
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Professor Bradley, although not disagreeing, also reminded us that:
"It ought not to be assumed without question that the possibility of rapid legislation is an attractive feature of the United Kingdom's flexible constitution".
That is a rather delicate way of putting it, but his opinion is clear.
The chief danger of fast-tracking legislation is the shortage of time-time to consider the problem; time to consider the appropriate legislation; time to consult with interested MPs and their committees, and with all those interested parties outside Parliament who would be affected; and time to debate the proposals at proper length and proper pace as they progress through Parliament.
At present, the role of the House of Lords is very important. In many instances, although a Bill is being fast-tracked, when it arrives at the House of Lords, usually it is processed at a more normal speed and with reasonable time for reasonable debates. At present, this House acts as an important safeguard in the fast-tracking process. However, we must remember that there is much talk of changes to this House, in both its membership and its role. If future changes result in the Government having control of business in this House similar to that that they have in the other place, then a serious safeguard against the misuse of the fast-tracking process may well be lost.
It was suggested to us that fast-track legislation could not be used lightly as it put "enormous pressure" on departments and,
Furthermore, it was said that part of the problem was the nature of the drafting process, which only a limited number of people were equipped to undertake. Be that as it may, the pressures, the temptations-call them what you will-can arise to try to short-process legislation without its passing through the normal full and time-consuming parliamentary processes. Such temptations can arise not only with draft Bills but, as has been mentioned already, with amendments to Bills made at a last stage in their progress through the House. They also arise in the creation of new delegated powers. There should be always an early review of fast-track legislation and a system of post-legislative review of such legislation built into the system; whether it is flexible or firm, there should be some form of legislative review.
Perhaps I may say a word about the importance of the House's Delegated Powers and Regulatory Reform Committee, which plays an important role in the subject that we are discussing. I have served my time on the committee and I have a great respect for its work. It has always benefited from good chairmanship and first-class legal advice, and we recall with sorrow and sadness the recent death of a distinguished past chairman, the late Lord Dahrendorf. The committee examines every Bill that comes before this House. If it concludes that any delegation contained in a Bill gives too much power to a Minister, or that a proposed statutory instrument does not give the right level of parliamentary scrutiny to a proposal, it reports this to the House. Its usefulness is emphasised in that more often or not the Government accept any proposed changes recommended
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I conclude with two quotations from the report. The first quotation is by Professor McEldowney, who said:
"There is a constitutional principle that bothers me. The constitutional principle is this, that urgency should not set the principle. The principle should be that the bill be given a robust, transparent analysis".
I agree. The second quotation is from Professor Bradley, who said:
"The House of Lords should take its own decision as to what is required ... we have a bicameral legislature and it must be for this House to decide for itself what it wishes to do ... one would hope that this independent decision by the House of Lords is kept at all costs and is made a real test for the Government to satisfy".
6.45 pm
Lord Pannick: My Lords, Thomas Jefferson wrote in a letter in 1787 that if he had to choose between having government without newspapers or newspapers without government, he would unhesitatingly choose the latter. Jefferson, of course, did not have to contend with newspapers dissecting his private life or, indeed, his expenses. However, applying a similar principle, there are some noble Lords-I hope I am not the only one-who take the view that effective opposition is as important to the good health of our constitution as effective government.
The evidence received by the Constitution Committee, of which I am a member, illustrated the extent to which the fast-tracking of legislation hinders effective opposition. In our system of parliamentary democracy, the Government enjoy-and rightly so-a number of advantages which assist them in promoting legislation to address the problems that confront us from time to time. In particular, the Government benefit from a civil service which has a collective experience and a collective wisdom that has thought about these problems and thought about the possible solutions which may be adopted. When the Government have digested the advice from the civil service, they can call upon skilled parliamentary draftsmen to express in legislative terms the policy on which they have decided. Opposition-whether it is the Official Opposition, the Liberal Democrats, occasionally those of us on the Cross-Benches; sometimes right reverend Prelates and sometimes, on occasions, Back-Benchers from the government side of the House-inevitably depends on a less well-oiled machine. That is no criticism-far from it-of opposition researchers, who do such an excellent job.
The reality, however, is that while Ministers are being driven off at speed in their official cars, the opposition are running along behind, trying to keep up, hoping for a lift. An effective opposition frequently-not exclusively, but frequently-depends on the lift which is provided by interest groups such as Justice, Liberty, the Bar Council, the Law Society and many of the other organisations that explain to noble Lords the consequences of government proposals. They help
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All this takes time, as the noble Lord, Lord Shaw, reminded us-time for the interest groups to understand and analyse the proposed legislation; time for them to brief us; time for us to understand the points; and time for us to draft amendments to highlight possible deficiencies in the legislation. The faster the legislative timetable, the less effective opposition inevitably will be, and the product will inevitably be of lower quality. Paragraphs 44 and 45 of the Constitution Committee's report contain some of the evidence we received that supports these points. It is for these reasons, among others, that legislation should be fast-tracked, as the committee has recommended, only where it is strictly necessary.
I am very grateful to the Government, as I am sure are all noble Lords, for their positive response to the committee's report. However, I would respectfully invite the noble Baroness the Leader of the House to clarify two aspects of the Government's response. The first matter is whether the Government accept the proposal that, when Ministers explain to the House why fast-tracking is necessary in a particular case, they should address all the points listed in paragraph 186 of our report. Those points were read out by the noble Lord, Lord Goodlad. The noble Lord, Lord Rowlands, referred to them, and the noble and learned Lord, Lord Morris, rightly said that they are pivotal to our report. I fear that the Government's response to the report on this matter is ambiguous. It says:
"Ministers remain prepared to justify the need for expedition to the House, including covering those issues set out in the Committee's report".
There is, or there may be, an important distinction between Ministers being prepared to address these points if asked to do so and their accepting the committee's important recommendation at paragraph 186 that they should address all these specific topics orally and in a written memorandum whenever they propose that legislation is to be fast-tracked.
The other matter on which I would invite clarification is the Government's response to the proposal that there should be a presumption in favour of a sunset clause whenever legislation is fast-tracked. The Government's response rightly points out that there will be cases where a sunset clause is inappropriate or unnecessary and, therefore, that a case-by-case analysis is required. However, the committee recognised that a sunset clause will not always be appropriate. Its point was that a presumption is justified by the fact that fast-tracked legislation will inevitably have involved a sacrifice of some of the time and attention devoted to proposals for legislation. A presumption simply means-but importantly means-that a proper case has to be made for not including a sunset clause. Like the noble Lord, Lord Norton, I simply do not understand why the Government reject, as they appear to do, the committee's recommendation that there should be a presumption of a sunset clause. I should be grateful if the noble Baroness the Leader of House would explain the Government's position.
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I have had the privilege and the pleasure of serving on your Lordships' Constitution Committee for almost one year. It is for noble Lords who are not members of the committee to comment on the value of our work, but I echo the tribute paid by the noble Lord, Lord Goodlad, to our adviser, Professor Andrew Le Sueur, for his invaluable contribution to the work of the committee. Like other members of the committee, I also thank the noble Lord, Lord Goodlad, for the wisdom, skill and unfailing courtesy with which he has chaired the work of our committee.
6.56 pm
Lord Maclennan of Rogart: My Lords, like the noble Lord, Lord Parekh, who spoke earlier in this debate, I did not have the privilege to serve on this committee, but I think that the noble Lord, Lord Goodlad, and his committee have provided this House with a weighty, authoritative and well argued report. I adopt its conclusions and advocate strongly that the Government respond in detail, particularly to the two last points made by the noble Lord, Lord Pannick, to which I shall return.
Like the noble Lord, Lord Rowlands, I entered Parliament in 1966. When I heard him speak earlier in the debate, I recognised that we came to these subjects from the same position. We have both experienced a sense that the procedures and the time taken to consider legislative matters have been rather less scrupulously regarded as the calendar has moved on. Notwithstanding the example of the Commonwealth Immigrants Act, which, like the noble Lord, Lord Parekh, I regard as the least honourable legislation that was passed in my first Parliament, I believe that the management of government business in Parliament has become too mechanistic and that the introduction of programming, particularly and almost exclusively in another place, is something to which we might give some post-legislative scrutiny-and I fear that we might well find it wanting. It is not least for that reason that the role of this House in acting as the body that can open up the discussions about legislation which have remained closed in another place is not to be departed from readily or lightly. This House has the power under Standing Order 47 to act with rapidity in response to a perceived crisis, but I hope that it would not be done without proper, open consideration of the arguments in a way that has not always characterised the deliberations of another place.
Not only has the committee produced an exceedingly valuable series of suggestions of proposals, but it has elicited very weighty evidence from experienced people and from some of our leading constitutional lawyers. Sometimes the Executive are faced with situations in which it is not possible to delay the response. I heard with familiarity the reference to the late Lord Jenkins, who gave colour to this point by saying that his greatest satisfaction was to see the headline, "Jenkins acts". But I do not know that he would necessarily have regarded action as involving legislation. To cite that illustration as an exemplification of the case for passing yet another variation on the criminal justice system because there has been a headline in a tabloid newspaper about a particularly shocking crime is not something that we should draw as a proper conclusion.
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The fast-track procedure has become more common than it used to be, though it is still not very common. Professor Anthony Bradley drew attention to that in his evidence to the committee. Some of us have noticed recent examples with dismay; not so much as regards executive action but, as the noble and learned Lord, Lord Lyell, said, as regards aspects of the Parliamentary Standards Act. It did have the characteristics of Alice in Wonderland about it, and although my party broadly supported action, I am not entirely certain that the action implemented in the form of that particular Act is one that we will live with with satisfaction for very long.
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