Fast-track Legislation: Constitutional Implications and Safeguards - Constitution Committee Contents

Chapter 1: Introduction

Fast-track Legislation: Constitutional Implications and Safeguards


1.  We have maintained a longstanding interest in the operation of the legislative process. In 2003-04, we undertook an inquiry into Parliament and the Legislative Process, where we identified ways in which we believed that legislative scrutiny by Parliament could be improved. In our July 2008 report on the Criminal Evidence (Witness Anonymity) Bill, we noted that this was the third "emergency bill"—i.e. a bill whose parliamentary passage was expedited, or "fast-tracked"—to be considered in recent months, following on from the Northern Ireland (St Andrews Agreement) (No 2) Bill in March 2007 and the Banking (Special Provisions) Bill in February 2008. We then commented:

    "While we accept that from time to time exceptional circumstances may arise requiring the Government to prepare, and Parliament to deliberate on, a bill according to an expedited timetable there are obvious risks, especially where the bill deals with a complex social and legal problem. We may consider this issue further in a future inquiry into the legislative process"[1].

2.  In the light of this, we decided to undertake an inquiry into "constitutional issues that may arise when there is resort to emergency legislation", and in particular, "situations where bills receive an expedited passage through Parliament". This inquiry has arisen not from a desire to consider theoretical constitutional principles or arcane parliamentary procedure, but rather from a wish to affirm the importance of the legislative process, and a desire to see it improved.

3.  The pertinence of this inquiry was confirmed by the Government seeking to fast-track two bills through Parliament whilst we were engaged in this inquiry. The Northern Ireland Bill 2009 (see paras 120-8) was brought forward whilst we were hearing oral evidence in connection with this inquiry and we were therefore able to take account of it in this report. Just before this report was published, the Government introduced the Parliamentary Standards Bill to the House of Commons and announced that they would seek to fast-track its progress through Parliament in order to secure Royal Assent before the summer recess. We consider the issues around the fast-tracking of this Bill in our separate scrutiny report on the Bill.

The inquiry process

4.  We received written submissions from seven witnesses, and heard oral evidence from 14 witnesses over seven sessions. Witnesses included academics, legal, parliamentary and constitutional experts, politicians, campaign organisations, civil servants and parliamentary officials, thus providing us with a number of different perspectives on the issues that we were considering. We are grateful to all those who took the time to respond to our inquiry.

5.  An inquiry of this nature of necessity requires us to consider the procedure and experience of the House of Commons as well as the House of Lords, and we are grateful to the Clerk of the House of Commons for his written submission, and to the then Deputy Leader of the House of Commons, Chris Bryant MP, for his oral evidence. We note in particular the Clerk of the House of Commons' observation that "the issues being examined by the Select Committee on the Constitution are, of course, of considerable interest to Committees of this House. I understand that our Procedure Committee has it in mind to conduct an inquiry into the programming of legislation, which will no doubt embrace issues raised by 'emergency' legislation" (p 146). We will follow the progress of any such inquiry with interest.

6.  We also contacted other legislatures in the UK (the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly), as well as a number of 'Westminster-style' legislatures (including New Zealand, Australia and Canada) to seek to gain a sense of their own experience of fast-track legislation. A summary of their responses is included as Appendix 6 and we thank those who responded to our requests for information. We also thank the Hansard Society for the information they provided on experience in New Zealand. Whilst such comparisons are useful, we acknowledge that the constitutional, parliamentary and political contexts vary.

Four specific issues

7.  During the course of the inquiry, we were conscious of four issues.


8.  There is a scarcity of previous work on fast-track legislation in general terms. Professor David Miers, Professor of Law, University of Cardiff Law School, told us:

    "It is quite remarkable how little academic work there is on emergency bills as a kind of generic … if you look at the practitioner books, if you look at the books on drafting … [and] on statutory interpretation, there is nothing there about emergency legislation" (Q 295).

9.  The perception that little previous thought has been given to the subject was one strong motivation for our undertaking of the inquiry, and we hope that this report forms a useful contribution to consideration of fast-track legislation as a discrete issue. As the Leader of the House of Lords, Baroness Royall of Blaisdon, told us:

    "The exercise in which this Committee is currently engaged is an invaluable stock-taking. I think it is very necessary for Parliament to look at procedures from time to time and to see whether or not procedures have been properly used, if they have been abused" (Q 342).


10.  The evidence that we received led us to the conclusion that the term "emergency legislation" is not a helpful one to use in this context. Professor Anthony Bradley, visiting Fellow of the Institute of European and Comparative Law, University of Oxford, and Emeritus Professor of Constitutional Law, University of Edinburgh, told us:

    "I find the term 'emergency legislation' a little difficult to use and I do not use it very much … if one simply looks at a bill that can pass through both Houses very rapidly, it might refer to bills that really are of no great interest to anybody and no politician, in their senses, would wish to spend time discussing them" (Q 248).

11.  The other problem with the term is the potential for confusion between bills whose parliamentary progress has been expedited, and bills that are brought forward to deal with an emergency (actual or foreseen). (See Mr Durno and Professor Bradley, Q 250) Professor Bradley reminded us that the Civil Contingencies Act 2004 defines an emergency as "an event or situation which threatens serious damage to human welfare or to the environment, or war or terrorism which threatens serious damage to the security of the United Kingdom, and these terms are themselves further defined" (p 90). Although some bills that seek to deal with an "emergency" thus defined may be subject to an expedited procedure, many others will be considered in the normal way. For the purposes of this report, we consider bills whose passage has been subject to an expedited procedure, whether or not they were brought forward to deal with an "emergency".

12.  Professor Bradley suggested some alternative terms for such bills, including "rapid legislation", "fast-track legislation", "accelerated procedure" and "instant legislation". (pp 90-1, Q 248) "Expedited legislation" is another possibility—the Clerk of the House of Commons told us that Erskine May refers to legislation passed "with unusual expedition" (p 146). Although all these terms could equally describe the process which we are seeking to examine, we find the term "fast-track legislation" most appealing in terms of its descriptive value. Like an express train, a bill on the "fast-track" will pass through all its normal "stops" (i.e. the various stages in each House), but the intervals between each stop will be shorter than on the "slow line". In this report we examine the process by which legislation passes through the stages of scrutiny in both Houses at a faster rate than normal. We use the term "fast-track legislation" to describe this process.


13.  The list of bills subject to a fast-track passage since 1974 at Appendix 5 shows that fast-track legislation has dealt with such serious issues as:

·  Responses to terrorist attacks (for example the Criminal Justice (Terrorism and Conspiracy) Bill 1998)

·  The response to the economic collapse (for example the Banking (Special Provisions) Bill 1998)

·  The Northern Ireland peace process and devolution settlement (for example the Northern Ireland Bill 2009)

·  Reform of the criminal law (for example the Dangerous Dogs Bill 1991)

·  Closing legal loopholes (for example the Human Reproductive Cloning Bill 2001)

14.  The list at Appendix 5 runs to well over 30 bills, and there are several other examples that could be included depending upon how "fast-tracking" is defined. We should however emphasise that this report is not intended to form a case-by-case dissection of each of these examples or a thorough analysis of the policy arguments behind each bill, but rather is intended to consider the constitutional principles and implications that relate to the use of a fast-track procedure. Nevertheless, where we find it useful to illustrate our arguments by way of case studies, we have done so.


15.  The list of recent cases of fast-track legislation was made considerably longer by the large number of such bills brought forward relating to Northern Ireland. As we mentioned above[2], during the course of our inquiry a Northern Ireland Bill was introduced, subjected to an accelerated passage, and passed as the Northern Ireland Act 2009. In our report on the Bill, we noted that "many bills relating to the Northern Ireland peace process and devolution settlement have similarly been introduced to Parliament on an emergency basis, with Parliament being called upon to give legislative effect to negotiations", and that as part of our new inquiry, "we are considering the reasons for and the constitutional implications of the practice in recent years of routinely giving bills relating to Northern Ireland constitutional matters expedited consideration by Parliament"[3]. We consider legislation relating to Northern Ireland in Chapter 4.

Constitutional principles

16.  We have identified five constitutional principles which we believe should underpin the consideration of fast-track legislation:

·  The need to ensure that effective parliamentary scrutiny is maintained in all situations. Can effective scrutiny still be undertaken when the progress of bills is fast-tracked, even to the extent of taking multiple stages in one day?

·  The need to maintain "good law"—i.e. to ensure that the technical quality of all legislation is maintained and improved. Is there any evidence that the fast-tracking of legislation has led to "bad law"?

·  The importance of providing interested bodies and affected organisations with the opportunity to influence the legislative process. Is Parliament able to take account of the work of campaigners in its scrutiny work when a bill completes its parliamentary passage so quickly?

·  The need to ensure that legislation is a proportionate, justified and appropriate response to the matter in hand and that fundamental constitutional rights and principles are not jeopardised.

·  The need to maintain transparency. To what extent are the transparency of the policy-making process within government and the parliamentary legislative process compromised when bills are fast-tracked?

17.  Through the rest of this report, we examine the question of definitions of fast-track legislation and situations in which it is constitutionally acceptable to fast-track legislation through Parliament. We then consider the issues and problems which arise when the fast-track legislative mechanism is used. Having done so, we consider whether any reforms can be introduced that would improve the process in the future.

1   9th Report (2007-08), Criminal Evidence (Witness Anonymity) Bill (HL 147), para 19. Back

2   See para 3. Back

3   6th Report (2008-09), Northern Ireland Bill (HL 50), paras 6-7. Back

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