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The key issues that we should recognise as presenting problems are that, as Professor Bradley said, the most cherished liberties in the common law can be taken away as rapidly as the freedom to keep dangerous dogs. There can be unacceptable pressure on parliamentary draftsmen, which can easily result in not mere infelicities but unforeseen consequences. The need to consult and legislate transparently is a crucial part of our democratic system. Cut-down debates in this and another place have a very damaging effect on public awareness of what the issues are. We have taken a number of steps to improve our legislative processes and to avoid the unexpected consequences of our action in the past decade. We have instituted the Joint Committee on Human Rights and given watchdog committees powers and recognised their role. However, it is a great mistake not to embody those checks in situations of emergency, which lead to fast-track legislation. I very much hope that the recommendations of the committee will be observed and acted on by the Government.

The crucial questions that the Minister has to answer in this debate are, first, how she and the Government and, in particular how this House, are to be treated in answering the recommendation that a Statement that contains reference to the eight principles set out in paragraph 186 of the committee's report should precede fast-track legislation. They have been read out before and I shall not allude to them again, though each of them is of great importance, individually and collectively.

It must be clear that the Bill is not being used as a vehicle to attach some issue to, in addition to the matters that have given rise to the urgent legislation. The legislation should not be a vehicle for what has been stored in the relevant department. Do the Government accept that a procedure is required to give effect to the Government's recognition of the need to justify expedition? The procedure recommended, of a Statement in the House and in the Explanatory Memorandum, seems to me highly commendable.

Finally, the other explicit answer that the House is looking for today is the Government's response to the presumption that the sunset clause is the appropriate way in which to deal with these matters to give time after the event to review how the legislation has worked and to undertake that that will be part of any fast-track legislation, unless authoritative and clearly accepted reasons are given.

7.06 pm

Lord Bates: My Lords, I rise in this important debate to congratulate the members of the Constitution Committee on bringing forward this report and giving

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us this timely opportunity to discuss the fast-track process. I am a relatively new Member of the House and an even fresher Member of the Front Bench on this side. So much of politics today is focused on product and so little attention is given to process-yet process determines product in its quality and purpose. The focus on this element has broadened out in the debate into a wider consideration of the way in which we do scrutiny. I pay tribute to my noble friend Lord Goodlad for his chairmanship and leadership in preparing the report and for the way in which he has tried to hone the extensive evidence that has been presented into some basic principles which can then be used as a test for other legislation that may be introduced under this measure. It would be interesting to see, perhaps as a further piece of work, whether, had those principles been applied to some of the Bills to which we have referred during this debate, they would have qualified for this additional privilege and purpose.

The report also makes some distinctions about where we are focusing our attention in terms of the problem. It is appropriate for your Lordships' House to have a sense of humble pride in the deliberations that take place here and some concern about the nature of debate as it is currently constituted in the other place. There are some basic principles that differ. For example, the Government do not have control of the time and do not have the ability to introduce programme Motions in this place, as they can and nearly always do in the other place. I am sure that that is a frustration to the Government from time to time, but it is also an important safeguard of the quality of debate in this place.

There are other elements here, such as the juxtaposition of this debate with the previous Third Reading debate on the Apprenticeships, Skills, Children and Learning Bill-the mammoth piece of legislation to which the noble Lord, Lord Rowlands, referred. At the end, there was a fascinating exchange between the Front-Benchers and the Cross-Benchers. This was a significant piece of legislation that had been hugely changed as a result of debates in this House and compliments were paid about the good work that had taken place. The noble Lord, Lord Elton, referred to the time allocated for consideration and the consultation that was undertaken, particularly with external bodies, professional associations and learned and knowledgeable people in the field who would be affected by the legislation. Finally and most crucially, the Government were in listening mode to the representations that were made and therefore brought forward the necessary amendments. Sometimes, we focus way too much on the negatives about bad legislation and far too little on the positives-about what constitutes good parliamentary activity and good legislation.

My noble friend Lord Goodlad quoted Tony Benn saying that "When Front-Benchers agree something in private, Parliament should be at its most vigilant". I am sure there is an echo here. It is important in this process. But it is important for Her Majesty's Official Opposition to put on the record that we have an eye on one day being on the government Benches. The recommendations in this piece of work do not make comfortable reading. The point of political scrutiny and parliamentary procedure is to make the Government

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uncomfortable. It is a problem if the Government ever become comfortable, because the purpose of Parliament is to hold the Executive to account. That is what has been happening.

There is a concern about the increasing use of guillotines, a point made by the noble Lord, Lord Rowlands, and the increasing pace with which debate in the other place is truncated. Therefore, legislation comes here needing significant new amendments and refinements.

My noble and learned friend Lord Lyell referred to the Parliamentary Standards Bill, which was one of the triggers for the debate that we are having this evening and for the report. One of the criticisms in the report is that in the legislation mould that we are in there is a cry for something to be done. Well, sometimes, something must be done. That is what has been happening to Parliament and its reputation. This has without doubt been one of the greatest crises in confidence in the parliamentary process that I have ever known and that there has been for a very long time. There has been a huge crisis and something needed to be done. People needed to see that we were prepared to act. That was the point made by my noble friend Lord Norton.

There are safeguards that we can introduce. The late tabling of amendments makes it very difficult for interested parties to be involved in discussion and debate, particularly from the point of view of the Official Opposition, who do not have access to the Bill teams and the Civil Service. I am sure that I speak for the Cross Benches too when I say that that means you rely very heavily on speaking to trade bodies and people who are working on the ground in the areas that you are legislating on to hear their concerns about the impact of the legislation on them.

I was also particularly interested-perhaps it could be an area for further work-in the costs of poor legislation. We talk about badly drafted and technically flawed legislation and we say that it can leave legislation open to legal challenge, but what are the costs of that? That is a pertinent question. It may be something that needs to be looked at in greater detail going forward, but what are the consequences of poorly drafted legislation in terms of adding to bureaucracy and not achieving desired outcomes? When we are rushing through at a pace, clearly that has an impact and a potential financial cost, and delays in essential legislation can and do occur.

My noble friend Lord Shaw talked about the dangers of rapid legislation and the importance of speed as a safeguard in this House. When matters are rushed through we do not have time. I say "We do not have the time" as if we were the only actors in this field, but what about the Bill teams, the civil servants and the agencies responsible for adjusting to the legislation and implementing it? They, too, do not have time to prepare. That is a persuasive point about the current pace of legislation.

The noble Lord, Lord Pannick, made a crucial point about the exogenous forces at work on Parliament and the importance of the media. We are in a media age and the media sensationalise and sometimes trivialise, moving from one headline to another. That is a difficult

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environment in which to legislate. That is one reason why Parliament must be an essential safeguard in the whole process in guaranteeing freedoms, scrutiny and process, in sensible legislation, for concerns that are legitimately raised within the media.

These are all difficulties that we will be wrestling with as a Parliament, but the debate initiated by the committee and its excellent report is timely and essential, not only for the Opposition but for the Government if we are further to regain and rebuild the reputation of Parliament in this country.

7.18 pm

The Chancellor of the Duchy of Lancaster (Baroness Royall of Blaisdon): My Lords, I too thank the noble Lord, Lord Goodlad, and the Select Committee on the Constitution for their timely report on fast-track legislation. I also thank all noble Lords who have spoken this afternoon. I was very grateful for the opportunity to offer evidence to the committee on this inquiry and for the further opportunity to contribute to the debate today. I apologise to the noble Lord and the committee for the late submission of the government response. I, too, share the disappointment of the committee and very much regret our tardiness. There is no excuse. I take personal responsibility and I should have chased it up.

The Government welcome the committee's report on fast-track legislation. It is right that parliamentary procedures are reviewed from time to time to ensure that they are being properly used and not abused, and the committee has fulfilled an important task with this particular inquiry and report. Fast-track or expedited legislation is not new. The committee lists well over 30 Bills which have been subject to fast-track procedures since 1974 and notes that several others could have been included in the list, depending on exactly how fast-track legislation is defined. It is not a matter of circumvention and avoidance, but of the need to respond swiftly to certain circumstances. It may be worth repeating at the outset that expedited Bills are not constitutionally different from other Bills; they must pass through the same legislative stages in both Houses. All noble Lords are right to say that we must be vigilant in the use of fast-tracking.

I will deal with the quotation from Tony Benn about when Front Benches all agree. Some noble Lords have suggested that legislation is fast-tracked based on agreements between the usual channels, which are conspiring against Back-Benchers. It is right and proper that the Government should seek the co-operation of the usual channels. That then provides a platform from which to seek to win over the rest of the House. However, it is not a substitute for seeking the views of the rest of the House; it is a starting point, and that is right and only proper.

Of course, I would respectfully disagree with the noble Lord, Lord Norton, when he suggested that the Government had failed to engage fully with the committee's report. The committee quite naturally seeks safeguards to secure proper scrutiny of legislation. Equally naturally, we must be wary of giving undertakings when we cannot foresee all the possible circumstances in which the Government-or indeed future Governments -might need to expedite legislation.

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In relation to the tabling of late amendments, we agree with the committee's recommendation and have always accepted that late amendments are inherently undesirable. However, as the committee recognises, such amendments are sometimes unavoidable and should not automatically be regarded as a sign of weakness in the scrutiny process. On the contrary, late amendments can sometimes demonstrate that scrutiny has succeeded-for example, when we table concessionary amendments to deal with points raised by noble Lords or in another place. However, I assure noble Lords that we will continue to work hard to limit the number of late amendments that are tabled on the Government's own initiative.

The committee urged us to show self-restraint when looking to fast-track affirmative statutory instruments. The committee is absolutely right. The committee itself noted that the JCSI's scrutiny reserve has been overridden on only five occasions since 1990. We rely on the co-operation of the JCSI and the Merits Committee when the timetable for obtaining approval of an affirmative instrument is unusually tight but, as the committee notes, it is for those committees to decide whether to accede to Ministers' requests. I pay tribute to the Merits Committee and the JCSI for their work, and emphasise that we make every effort to ensure that the House has had the benefit of the views of both committees before it is invited to approve affirmative instruments.

The noble Lord, Lord Shaw of Northstead, drew our attention to the work of the Delegated Powers Committee, which certainly plays an extremely important role in our legislative process. I heed his wise words and the quotations that he cited. He raised the question of time, as did the noble Lord, Lord Pannick, who is of course welcome to walk home with me this evening to discuss these and other issues. I agree that, for all the reasons he gave, legislation should be fast-tracked only when specifically necessary. The process can indeed help to determine the product, as the noble Lord, Lord Bates, reminded us. Of course, time is of the essence for good opposition, and good opposition-as well as good government-are key to good governance. I certainly recognise that. The fact that we do not have programme motions in this place helps to safeguard parliamentary scrutiny in many ways.

The Government very much welcome the committee's support for pre-legislative scrutiny. The report recommended that the Government put mechanisms in place for parliamentary committees and stakeholders to comment on proposed fast-track legislation ahead of Second Reading in the first House. We will certainly consider further how we can make better use of the pre-legislative scrutiny process in fast-track legislation on a case-by-case basis. However, as the committee also recognised, by their very nature, fast-track Bills require flexibility in handling, and we therefore do not believe it would be practicable to set out in advance what type of pre-legislative scrutiny can be achieved in each case. The Criminal Evidence (Witness Anonymity) Bill was considered by the Joint Committee on Human Rights and the Constitution Committee during its passage through Parliament. This is perhaps an example that we could build on.

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The Government also accept the committee's recommendation that use of the No. 2 Bill procedure, which was used during the passage of the Banking Act this Session, should not be extended. We agree that the advantages of this procedure are normally outweighed by its disadvantages.

The committee reminded us that the Minister responsible for the Bill should be required to make an Oral Statement to your Lordships when the Bill is introduced, making the case for fast-tracking-a key part of the debate today. The committee also set out a detailed list of issues that such a Statement should cover. The Government fully agree with the principle of the committee's recommendation, and the issues on which the House can expect an explanation. We welcome the greater openness and transparency that adherence to the principle should bring. We will ensure that Ministers make their case on each occasion that fast-tracking is proposed. The list of points set out in paragraph 186 of the committee's report offers an excellent template for how such explanations should be formulated. The procedure by which the Government put their case for fast-tracking before the House is something that deserves further consideration. I would like to discuss this further with the noble Lord, Lord Goodlad, as well as the usual channels.

I well understand the importance that my noble friend Lord Rowlands and others attach to an Oral Statement, but I want to ensure that whatever is agreed really meets the demands of the committee. Simply requesting an Oral Statement would not in every case meet those needs. I very much agree that the Explanatory Memorandum to the Bill could-perhaps should-include a statement about the need for fast-tracking. I will certainly pursue this further. I also note the suggestion of the noble Lord, Lord Norton of Louth, about the suspension of standing orders when we need to condense stages. I will take that back and reflect further.

The committee recommended that there should be a presumption in favour of the use of sunset clauses in fast-track Bills, and that the Government should make the case for excluding such a clause, where they have done so, in the ministerial Statement. We believe that the use of sunset clauses should continue to be considered on a case-by-case basis, although we fully accept the committee's recommendation that the House is entitled to an explanation of why a sunset clause is not included in a fast-tracked Bill. As ever, we will continue to listen to the views of the House on this and other issues. I am grateful for the support of my noble friend Lord Parekh, who perhaps brings a fresh perspective to this issue.

The issue of presumption depends in many ways on how one defines the word. If by "presumption" one means that generally sunset clauses are a good idea, I cannot accept that, as I mentioned. As I also said in my evidence to the committee, there are Bills, including those brought forward in response to court cases, for example, where the uncertainty introduced by a sunset clause would be contrary to the intention of the legislation. However, if by "presumption" we mean that Ministers should be prepared to justify why no sunset clause has been included in a piece of fast-tracked legislation, I

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can absolutely accept that. I think that is what is required of us under point (e) in the list of issues set out in paragraph 186.

The committee also made the related point that any legislation subject to a fast-track procedure should be subject to post-legislative review within one or two years. We recognise the principle behind the committee's argument. Where Parliament's consideration of a Bill has been carried out quickly, it should be given an early opportunity to reconsider the legislation. Where there is adequate evidence about the operation of an Act for the Government to carry out an early review, we agree that there is a case for doing so. However, it would not be productive to conduct post-legislative reviews before an Act has had time to take effect and its impact has been understood. I will come back shortly to the Parliamentary Standards Act, which could be cited as an example of that.

The Government remain committed to conducting post-legislative scrutiny within three to five years of Royal Assent. In light of the strong case made by the committee, we will endeavour to conduct reviews as early as possible within that window. Where there is sufficient evidence about the operation of an Act to bring post-legislative scrutiny forward, then we will do so whenever possible. I note the comments made by the noble Lord, Lord Bates, about the costs of bad legislation. I certainly think that we should reflect on that also.

The noble and learned Lord, Lord Lyell of Markyate, and the noble Lord, Lord Maclennan, referred to the Parliamentary Standards Bill. Urgent action was required to address an unprecedented crisis of public confidence in Parliament. It was necessary to have the establishment of IPSA well under way so that it could take forward the recommendations of the Kelly report. That is what is happening, thanks to the expedited passage of that Bill. It was not just a question of action being seen to be done, although that was important; action was already taking place in respect of, for example, external audit by the NAO and the establishment of a review by the Committee on Standards in Public Life. However, we had to ensure that legislation was passed before the Summer Recess in order to allow IPSA time to recruit members and staff, find premises, establish an administration and complete consultation on an allowances scheme and code of financial conduct before the next election. I think we all agree that we want to conclude all the issues in relation to parliamentary allowances and what has gone before prior to the next election so that we can all start with a clean slate. That is why we brought forward that expedited legislation.

My noble and learned friend Lord Morris of Aberavon clearly demonstrated the potential pitfalls of fast-track legislation, but one can see why the Criminal Justice (Terrorism and Conspiracy) Act 1998 was deemed a necessity at the time; in retrospect, perhaps it is not. My noble friend Lord Rowlands asked about Northern Ireland legislation and the need for normalcy, as he put it, in relation to Northern Ireland. That, too, is my strong desire. The Northern Ireland Act 2009 was an important piece of legislation that gave effect to an

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agreement between the First and Deputy First Minister, but I sincerely hope that truly was the last piece of the jigsaw.

Overall, I hope that the committee and the House will recognise that the Government have reflected carefully on the recommendations contained in this report, and accepted the vast majority of them. As we are on the eve of a new legislative Session, this is a particularly apt moment for the Government and the House to be engaging on these matters, and I reiterate my thanks to the noble Lord, Lord Goodlad, and all other noble Lords who have participated in the debate this afternoon for providing us with the opportunity to do so.

7.33 pm

Lord Goodlad: My Lords, I briefly express a word of appreciation to the members of the committee for their work on the report, and to those who have spoken in the debate today: the noble Lords, Lord Rowlands, Lord Parekh, Lord Maclennan of Rogart and Lord Pannick; my noble and learned friend Lord Lyell of Markyate; the noble and learned Lord, Lord Morris of Aberavon; my noble friends Lord Norton of Louth, Lord Shaw of Northstead and Lord Bates; and lastly, the noble Baroness the Leader of the House.

Years ago in another place I remember that Enoch Powell said that he was participating in a debate even when he did not speak in it. The importance of this subject has been witnessed by the very large number of noble Lords who have participated in the debate without speaking in it.

The quality of our legislation in a very fast-changing world affects every citizen in the country. There is a view that Parliament is gradually ceding its functions to arms of the Executive in a prolonged fit of negligence, absent-mindedness and torpor. The quality of our debate today gives the lie to that view. We are extremely grateful to the noble Baroness the Leader of the House for her unfailing courtesy, her response today and the Government's response to the report. We shall consider both with great care in the committee and respond accordingly.

Motion agreed.

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