Chapter 2: Definitions of fast-track legislation
18. At the start of this inquiry, we sought to
ascertain whether it was possible to produce a definitive list
of: a) recent cases of fast-track legislation; and b) the circumstances
in which the use of fast-track legislation was acceptable. We
produced a list of over 30 bills which have been fast-tracked
through Parliament in the past 20 years[4].
We asked witnesses whether this number was acceptable and in what
circumstances they considered it justifiable for a government
to seek to fast-track a bill through Parliament.
19. We were reminded by Liberty that fast-track
legislation "is not a new phenomenon" (p 49. See
also Law Society, pp 96-7). As Sir John Chilcot, a retired senior
Civil Servant and representative of the Better Government Initiative,
reminded us, "we do not hark back to a non-existent golden
agewe were there and it was not golden" (Q 3).
20. A number of our witnesses agreed that there
is a need for there to be some recourse to a fast-track procedure,
so long as its use can be justified. For instance, JUSTICE argued
that "it is important that both the law and the law-making
process are sufficiently flexible to address situations that require
urgent action. The very nature of most emergencies is that they
arise unforeseen, yet it is inevitable that crises will arise
and it would be irresponsible for Parliament not to make some
allowance for the need to make laws quickly and effectively should
circumstances demand it" (p 40. See also Ms Sankey,
Q 132; Dr Fox, Q 4). Whilst not disagreeing with this,
Professor Bradley did warn 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"
(p 91).
21. On the question of the amount of fast-track
legislation, Professor Bradley asserted that it "occurs more
frequently than is often realised" (p 91). Professor
Miers estimated that our list of over 30 bills over the past 20
years formed "something less than five per cent of the total".
In his view, "numbers are not of themselves
the issue"
(Q 293). Whilst both Isabella Sankey, Policy Director, Liberty,
and Dr Eric Metcalfe, Director of Human Rights Policy, JUSTICE,
were concerned at the high number of bills which we listed, they
both agreed that it was not the central issue. Ms Sankey felt
that "it really is a question of judging on a case-by-case
basis whether the justification has been made out and looking
at potential repercussions if legislation is not expedited".
Dr Metcalfe agreed that "the main issue is quality not quantity"
(Q 132).
22. Box 1 below shows some of the scenarios in
which fast-track procedures have been used. This is not an exhaustive
list but it gives some idea of the scope and variety of the justifications
relied on by the government of the day for fast-tracking legislation.
BOX 1
Scenarios in which fast-track procedures
have been used
Justification relied on to fast-track a bill:
|
Northern Ireland peace process and devolution settlement (the single largest category in terms of number of bills)
|
To remedy an anomaly, oversight, error or uncertainty that has come to light in legislation
|
To respond to the effects of a court judgment
|
To ensure that legislation is in force in time for a forthcoming event
|
To deal with economic crisis
|
To change a public authority's borrowing or lending limit or other funding issues
|
To deal with a crisis in prisons as a result of industrial action
|
To respond to international agreements
|
To implement Treasury announcements in the Budget or autumn statement
|
To respond to public concerns
|
Counter-terrorism related
|
23. There was a general consensus amongst our
witnesses that there is a range of situations in which it is constitutionally
acceptable for bills to be fast-tracked. Steven Durno, Legal Policy
Officer, Law Society, told us that it was possible to make a reasoned
case for the fast-tracking of most of the bills which were fast-tracked
in the past twenty years (Q249). Professor John McEldowney, Professor
of Law, University of Warwick School of Law, and Lord Baker of
Dorking thought that fast-tracking a bill which is intended to
fill a legal lacuna identified by the Courts and which has cross-party
support was acceptable (QQ 59, 293).
24. Some witnesses identified occasions when,
in their view, legislation had been fast-tracked for unacceptable
reasons. Professor Miers told us that fast-track procedures should
not be used for bills dealing with "something that was predictable
or had been flagged
at some point" (Q293). Dr Metcalfe
criticised the use of fast-track procedures for legislation introduced
primarily to respond to a public outcry (Q140). Lord Baker accepted
that this was a "controversial and difficult area" but
defended the use of fast-track procedures for what became the
Aggravated Vehicle-Taking Act 1992 and the Dangerous Dogs Act
1991 which he had introduced, as Home Secretary, to respond to
public concerns (QQ 59, 61, 75-85).
25. None of our witnesses was able to produce
a definitive list of circumstances in which it is constitutionally
acceptable to fast-track legislation. Sir John Chilcot explained
that "the issue is one essentially of parliamentary judgment
and decision" (Q3). Going further, Baroness Royall explained
that the Government thought that it was "not only difficult
but
[also] wrong
to define circumstances [in which
it is constitutionally acceptable to use fast-track procedures]
because expeditious legislation or emergency legislation is there
precisely to react to certain circumstances which by their very
nature are indefinable" (Q336). We agree that it is impossible
to define all the circumstances in which it is constitutionally
acceptable to use fast-track procedures.
26. It is equally difficult to come up with a
definitive list of legislation that has been fast-tracked. The
general procedures for parliamentary scrutiny of a bill are the
same in terms of numbers of stages of consideration whether a
bill is fast-tracked or not, and the degree to which there has
been a significant departure from the normal intervals between
stages can vary considerably. There is, in essence, a fast-track
"spectrum", in terms of the degree to which the normal
intervals between stages are departed from.
27. For the purposes of this report therefore
we have used the following useful definition of fast-track legislation
based on the evidence provided by the Clerk of the House of Commons:
"bills
which the Government of the day represents
to Parliament must be enacted swiftly
and then uses its
power of legislative initiative and control of Parliamentary time
to secure their passage" (p 146).
28. In practice any of the following procedural
characteristics can define and identify fast-track legislation:
· Legislation which has been taken through
all its stages in the Commons in one day;
· Legislation which has had two or more
of its stages taken in one day in the Lords (Standing Order 47
having been dispensed with);
· Legislation where there has been a significant
departure from the normal intervals between stages;
· Legislation which Parliament has been
recalled to consider and pass;
· Legislation which, even though none of
the above apply, has been expedited because of an urgent situation
(see for an example of this the Clerk of the Parliaments' written
evidence on the Prevention of Terrorism Act 2005, pp 159, 166).
29. During the course of our inquiry it became
clear that some billsBritish Shipbuilders (Borrowing Powers)
Bill 1983, Town and Country Planning (Compensation) Bill 1985,
Dangerous Dogs Bill 1991, Aggravated Vehicle-Taking Bill 1991,
Humber Bridge (Debts) Bill 1995 and Hong Kong Economic and Trade
Office Bill 1996which had been fast-tracked through the
House of Commons (with all stages being taken in one day) had
had a normal passage in the House of Lords.
30. It was suggested that the use of normal procedures
in the House of Lords for these bills called into question whether
there really was an urgent situation requiring fast-tracked legislation
in these cases. Whilst accepting that this may be an issue, there
are at least three other possible reasons for this situation:
first, what the Clerk of the House of Commons termed, "the
disparity of time provided for debate in the House of Commons
and in the House of Lords" (p 150); secondly, the Government
generally have more direct power in the House of Commons to influence
the timetable of a bill than they have in the House of Lords;
and thirdly, in at least one of the cases mentioned abovethe
Dangerous Dogs Bill 1991there was a clear desire on the
part of the Government to ensure the legislation was passed before
the long summer recess. The pattern of the parliamentary year
with a recess lasting for the whole of August and September meant
that this Bill, which was introduced in June, could not have been
enacted before the summer recess had the normal timetable been
followed in both Houses of Parliament. (Lord Baker, Q 77)
But, once the Bill had received an expedited passage through the
House of Commons, there was sufficient time before the recess
for the usual timings to be observed in the House of Lords.
31. Having identified what we mean by "fast-track
legislation", in the next Chapter we consider the practical
implications of the use of fast-tracking.
4 We were greatly assisted in this by a research paper
produced by the House of Commons Library, Government Bills
receiving their Second and Third Reading on the same day (SN/PC/04974),
which is available at http://www.parliament.uk/commons/lib/research/briefings/snpc-04974.pdf Back
|