Chapter 1: Introduction
Fast-track Legislation: Constitutional
Implications and Safeguards
Background
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.
A) THE LACK OF PREVIOUS RESEARCH
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).
B) THE QUESTION OF TERMINOLOGY
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.
C) DEFINING WHAT IS A "FAST-TRACK"
BILL
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.
D) NORTHERN IRELAND
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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