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

Chapter 3: primary legislation which is fast-tracked

Problems and issues concerning fast-track primary legislation

32.  In Chapter 1 we set out five constitutional principles that we believe should underpin the consideration of fast-track legislation. Our witnesses identified a number of practical issues and problems that arise when primary legislation is fast-tracked, many of which touch upon these principles.


33.  Baroness Royall conceded that one of the major difficulties was that "there is not as much time for scrutiny with expedited legislation" (QQ 349, 361). Other witnesses agreed. Liberty argued that the need for proper parliamentary debate and scrutiny was "an essential feature of the UK's constitutional structure … when legislation is introduced into Parliament and passed within a few weeks or even days it is impossible for Parliament fully to analyse and debate the proposals put before it" (p 51. See also JUSTICE, p 43)

34.  Professor Bradley pointed out that the truncated timescale posed particular problems for "watchdog committees" such as ourselves (Q 261, pp 91-2). The Clerk of the Parliaments made a similar point with reference to the work of the House of Lords Delegated Powers and Regulatory Reform Committee, arguing that "this might be viewed as one of the ways in which emergency legislation can entail a trade-off between speed and the quality of scrutiny by the House and its committees" (p 161).

35.  The Government agreed that "good scrutiny is an essential part of making good law" (p 128). However, Mr Bryant told us that "sometimes a piece of legislation may not be as good as it could be but we have to balance the need for swift action against whether we are doing detriment to the quality of the legislation that is so significant that we would have been better to have taken more time" (Q 349). Baroness Royall argued that each of the bills that she had been acquainted with in the Lords had been properly scrutinised, and that she had never felt there had been "undue pressure" (Q 365).


36.  Dr Ruth Fox, Director of the Hansard Society's Parliament and Government Programme, explained their concern that "in a number of cases, the nature of the fast-track is something that could be looked at in terms of greater flexibility … whilst there may be a case" for fast-tracking, "in many instances the accelerated nature of the fast-track is beyond what in most instances is required" (Q 4. See also Hansard Society, p 5). Mr Durno argued that "in recent years there has not been anything that has been so pressing that it could not have allowed for a little bit more time" (Q 263).

37.  Sir Joseph Pilling, a retired senior Civil Servant, thought that "it may be a mistake to look at this issue as a choice between the expedited or emergency procedure and the normal procedure. There may be an issue to be explored about how expedited and how emergency, as it were, the procedure ought to be" (Q 212).


38.  The constraints that fast-tracking places on the scrutiny process raises the question of whether the quality of the legislation that follows suffers as a result. Professor Brice Dickson, Professor of International and Comparative Law, and Director of the Human Rights Centre, Queen's University Belfast School of Law, argued that legislation "pushed through Parliament in an emergency tends to be bad legislation because it is ill-considered" (p 85). Liberty asserted that "legislation drafted in haste will inevitably contain errors be they minor or more substantial" (p 51. See also Dr Fox, Q 43).

39.  The Law Society also claimed that "legislation that is introduced in a rushed manner is invariably bad" (p 96. See also Q 260). However, aside from the Dangerous Dogs Act 1991 (see paras 83-8 below), Mr Durno was unable to identify any examples of fast-track legislation that had subsequently turned out to be either redundant or unworkable (QQ 266-7). Professor McEldowney conceded that it was difficult to prove the effect of the amount of scrutiny on the quality of a piece of legislation (Q 296).

40.  Baroness Royall denied that "there is necessarily a corollary between a bad piece of legislation and an expedited piece of legislation ... there are other pieces of legislation which have been expedited which I think have been very good pieces of legislation" (QQ 348-9).


41.  Some witnesses referred to the pressure that fast-tracking placed on the process of preparation of legislation. Baroness Royall told us that, whilst there were mechanisms to alleviate the problem, fast-track legislation put "enormous pressure" on departments and "huge demands" on parliamentary counsel. Mr Bryant stated that this was "yet another reason why Government is very reluctant to do it unless it really has to", and that whilst parliamentary counsel did "a phenomenal job … getting all the ducks lined up in a row at speed is quite difficult" (Q 397). Dr Fox told us that part of the problem was the technical nature of the drafting process, which only a limited number of people were equipped to undertake (Q 43)

42.  The Clerk of the Parliaments and the Clerk of the House of Commons made similar points with reference to the preparation of relevant parliamentary papers. The Clerk of the Parliaments told us that "where two or more amendable stages of a bill take place on one day, the practical difficulties of tabling amendments between stages and producing the manuscript marshalled lists, groupings and briefs can become acute" (p 162). The Clerk of the House of Commons told us that whilst "the process of emergency legislation can be supported … the margins are very narrow and the possibility of error increases with speed" (p 150).

43.  Another distinct concern was the knock-on effect of the introduction of fast-track legislation on the rest of the legislative programme. Lord Baker told us that whilst the Aggravated Vehicle Taking Act1992 and the Dangerous Dogs Act 1991 "did not actually displace legislation in either case; it probably slowed down legislation and it probably meant that the House might have to sit a few more days in July" (QQ 66-8). Baroness Royall agreed that "it is a great headache to have a piece of legislation which we were not expecting which suddenly we have to slot into a very crowded programme, so … you can be sure that we are arguing vociferously with our colleagues to ensure that the piece of legislation itself is absolutely necessary" (Q 367).


44.  There was also consensus that fast-tracking creates difficulties for interested organisations who seek to influence the legislative process. Professor Dickson referred to the "important principle … of participative democracy. The faster legislation is put through without prior notice, the more difficult it is for people outside Parliament, let alone parliamentarians, to express a view on the proposed legislation, and that is very regrettable" (Q 228). The Clerk of the House of Commons agreed that in the most extreme examples of fast-tracking, "public access to the legislative process is virtually impossible … the ability of outside organisations, pressure groups and individuals to comment is in practice non-existent" (p 150).

45.  We heard from a number of such organisations. Mr Durno told us that, whilst the Law Society could normally suggest improvements to legislation, there was "just not the scope" to do so when "passing legislation very, very quickly through" (Q 269). Ms Sankey told us that Liberty "feel significantly hampered by fast-track legislation" (QQ 141, 161). JUSTICE pointed out that "NGOs themselves typically operate with very limited resources and may well be covering more than one piece of legislation at the same time. Expedited passage of legislation therefore reduces not only the amount of scrutiny available for the legislation itself, but also diminishes the overall quality of public scrutiny of other legislation. The fact that NGOs such as JUSTICE are still able to produce briefings on—and draft suggested amendments in respect of—emergency legislation should not be taken as any kind of evidence that expedited proceedings are sufficient to allow effective public participation in the law-making process" (p 43).

46.  Baroness Royall acknowledged that "as a Parliament, we have a duty to the outside world and we need to ensure that what we are doing inside Parliament is understood and open and transparent, and I think that is much more difficult with an expedited process. I think the outside world cannot be as involved as I would wish it to be in legislation when there is an expedited process" (Q 361).


47.  Another problem identified by a number of witnesses was what might be termed the "something must be done" syndrome. Lord Baker reflected upon the passage of the Aggravated Vehicle Taking Act in 1991 when he was Home Secretary:

    "What happened was that gangs of youths would steal a car, usually a high performance car, and do the most amazing tricks with it at night to such an extent that people came and watched it as a spectator sport and the television cameras came and filmed them night after night after night … The Chief Constables of both [the affected] authorities came to the Home Office to see me and said that something must be done. That was the birth of the aggravated vehicle taking offence" (Q 61).

48.  Professor Bradley told us that "the desire to legislate rapidly may be a response to an event of current prominence in the media. It may be difficult to separate the need for rapid legislation from the government's interest in being seen to respond decisively to current issues. Critics of such legislation may argue that the government could and should have asked Parliament to legislate at a much earlier date" (p 91). Professor Dickson warned that "members of the public may feel that the government is engaging in a knee-jerk reaction so as to be seen to be 'doing something' about the incident that has just occurred, even though existing laws may be adequate to deal with that incident" (p 84). Liberty were also fearful that "the policy behind such legislation will at best be ill-thought out and at worst may be motivated by political objectives to be 'seen' to be responding to an event or judgment" (p 51). Dr Fox questioned whether "public opinion and media pressure—and public opinion is a fickle thing—would meet grounds for immediacy" (QQ 7, 9).

49.  Having said this, other witnesses argued that the political reality of a situation may sometimes demand a response. Sir John Chilcot related the story of Lord Jenkins of Hillhead, who, reflecting on his political career, "said that the best headline he ever had … was simply, 'Jenkins acts'. It did not say what he had done or why or to what effect, but that he had acted. That in his judgment—and he was not entirely flippant—was part of the purpose of things politically" (Q 20). Professor Bradley conceded that there was a "symbolic purpose" to the legislative process: "It is valuable for the Government to be seen to be doing something and of course for Parliament also to be doing so. If there is a very great deal of public concern about an issue, then I am not against there being a response, but what one fears is that the response may be so hasty that it may be ill-considered and … there still surely should be proper time for consideration of what is said" (Q 254).


50.  A linked issue is the concern expressed by some witnesses that there is a temptation for the government of the day to seek to fast-track legislation when there is little case for doing so. Mr Durno thought that "in the [security] situation that is prevailing just at present, there is a real possibility of legislators being bounced into taking legislative action … when they themselves do not have any way of testing the arguments" (Q 264). JUSTICE likewise argued that "current arrangements make it too easy for the government to expedite legislation where it is not appropriate, and with little consequence for doing so" (p 44).

51.  Liberty expressed particular concern about "court decisions being used as an excuse to bypass the ordinary legislative process on the basis that the decisions leave a gap in the law" (p 51). Professor Dickson was unsure why Parliament reacted quickly to some court decisions and not to others. (Q 228) James Lee, Lecturer in Law, University of Birmingham Law School, warned that fast-track legislation to reverse specific decisions should not become the norm, and that "it is unwise and constitutionally dangerous for the threat of a legislative reversal to be in the minds of the judiciary when they are deciding cases" (pp 173-4). The Law Society argued that the Government should make preparations in advance in relation to court cases "which may have major constitutional implications" (Q 263).


52.  Sir John Chilcot identified another temptation for those in government:

    "If you have an emergency measure going through very fast and you have one or two things from the back pocket which you would quite like to tack on—it would be terribly convenient and tidy and neat—the temptation is nearly irresistible to advise ministers to try it on. That should not get through and in any post-review should be identified and picked out and dealt with properly" (Q 15).

53.  The Law Society thought that "there may be a suspicion that the Home Office has on the shelf certain clauses in anticipation of a situation arising where they will have to legislate. I have no way of proving that" (Q 273). Liberty argued that this had happened a number of times, but that it was "totally unacceptable, and a clear perversion of the parliamentary process" (p 51). The Clerk of the House of Commons suggested that we might explore further "the need to ensure that a bill which is to be taken with 'unusual expedition' contains only those provisions which are urgent, and that the temptation to take advantage of a legislative vehicle to include other material is resisted" (p 150).

54.  Mr Bryant told us that discussion of such points was part of the debate on the allocation of time motion. (Q 367) Baroness Royall told us that "we very strongly make the argument that every part of the bill should be, of necessity, expedited", and to ensure that "every part of that [fast-track] legislation is necessary" (Q 367).


55.  The Law Society was equally concerned that "emergency legislation can provide ministers with sweeping powers to use in further emergencies" (p 97). Tying in with this was the anxiety at what Professor Dickson termed "acting in haste and repenting at leisure"—namely, the likelihood that fast-track legislation, once enacted, will remain on the statute book (Q 233). Professor Dickson also expressed his fear that "unless the provisions are strictly time limited they may become a semi-permanent feature of the law and be resorted to in situations for which they were never designed … At the moment there is no legal mechanism to stop emergency legislation being used for purposes for which it was never intended" (pp 84-5). Liberty asserted that "our recent legislative history powerfully demonstrates how powers introduced to deal with an 'emergency' are continued long after the emergency has passed" (p 53).


56.  Such concerns reflected a wider sense of unease at the increased power and influence of the executive vis-à-vis Parliament when fast-track legislation is proposed. Although Mr Bryant told us that "the Government would prefer, full stop, not to have to expedite legislation and that should be the assumption of our constitutional settlement" (Q 349), Lord Baker contended that "governments like to use their power for all sorts of reasons when they want something to be done … usually at the expense of some parliamentary scrutiny of one sort or another" (Q 94).

57.  The Hansard Society told us that "the emergency legislation process is characterised, even more so than normal, by dominance of the Executive", in that while Ministers assert that arrangements have been settled by the Usual Channels, "the initiative for organising business in Parliament lies with the Government" (pp 5-6). Professor Bradley warned that "a democratic vote, meaning a vote in the House of Commons, is not enough in every situation to satisfy a democrat that proper procedures are being followed" (Q 268). Dr Metcalfe was not aware of a situation in the last 20 or 30 years when Parliament had refused a request from the executive to fast-track a bill's passage. (Q 135)

58.  However, the Government argued that the amount of time available to consider a bill is a matter for Parliament, and that they would "seek to make as much time as possible available for scrutiny, subject to the need to achieve Royal Assent by a given date" (pp 128-9). Baroness Royall told us that "bills are expedited in this way only because there is cross-party agreement on a deadline for Royal Assent … ensuring the maximum possible degree of parliamentary scrutiny is paramount in such circumstances" (Q 335). Mr Bryant argued that "it is only Parliament that in the end decides whether we should be expediting legislation" (Q 340).

59.  Yet Mr Bryant told us that "'cross-party' in the Commons means something slightly different from in the Lords … there is not a veto … in the House of Commons. In the end, we have a debate and a vote, if necessary. We do not proceed entirely by consensus. But we do understand that when it goes to the Lords we will have to be proceeding by consensus" (QQ 347, 356).

60.  When we pointed out that some bills which went through the Commons in one day were not expedited at all in the Lords (although not under the present Government), Baroness Royall told us that that reflected "the fact that in the House of Commons the Government has a majority and therefore they can expedite bills in a day, but in the House of Lords there is no cross-party agreement and we are a self-regulating House" (Q 358). Professor Bradley agreed with our suggestion that, where the Commons fast-tracked a bill but the Lords did not do so, it tended to cast doubt on the question of urgency in such cases (Q 251).


61.  There are also a number of procedural differences between the Houses that impact upon the way that fast-track legislation is considered. The Clerk of the Parliaments pointed out that:

·  The Government has no formal control over parliamentary time in the Lords;

·  The House of Lords is self-regulating. The usual channels discuss matters of the timetabling of legislation, but cannot always determine in advance the amount of time which the House will spend on considering any bill;

·  There is no selection of amendments. All amendments tabled must be called and may be debated;

·  In the Commons, Report and Third Reading are almost always taken on the same day; in the Lords, Report and Third Reading amendments are nearly always taken on separate days and amendments may be tabled and considered at Third Reading. (pp 159-60)

62.  He also told us that "it is unusual, though not impossible, for emergency legislation to pass all its Lords' stages in a single day. This would require a high degree of consensus in the usual channels and in the House … In recent sessions, emergency bills have generally been given a First Reading on one day (following their arrival from the Commons), followed by Second Reading on a separate day, with Committee, Report and Third Reading being taken on a third day" (p 160). The Clerk of the House of Commons pointed out that "for Government bills proceeded with urgently, a comprehensive regulating motion is now invariably tabled—in its effect, a guillotine—which makes provision for the handling of each stage (including putting forthwith Questions which otherwise would be debatable) and allotting time to each stage, including exchanges with the Lords" (p 148).

63.  Mr Bryant pointed out that "in the House of Commons we have to have an allocation of time motion for us to be able to proceed in the first place, and during that debate, inevitably, the whole nature of the discussion is whether or not we should be expediting this particular piece of legislation and the Government has to defend its argument" (Q 337). The Hansard Society were concerned that this debate and divisions could cut into the time available for consideration of the bill (p 6). However, it does mean that the debate on the merits (or otherwise) of the fast-track procedure is dealt with before Second Reading in the Commons, whereas in the Lords, the Second Reading debate may focus upon this debate, as much as upon the merits of the legislation at hand. The equivalent procedure in the Lords to the Allocation of Time motion is a motion to suspend the Standing Orders, although this is rarely debated. We discuss this further in Chapter 6.

Case Studies of fast-track primary legislation

64.  It is useful to consider the issues raised by witnesses in the light of some examples of where primary legislation has been fast-tracked. We now consider four case studies raised by witnesses, taken from different eras, under different administrations, and covering different policy issues.


65.  The first case study is not a single example, but rather a series of pieces of anti-terrorism legislation whose parliamentary passage has been fast-tracked. Professor Clive Walker, Professor of Criminal Justice Studies, University of Leeds School of Law, asserted that "anti-terrorism legislation is replete with examples" of fast-track legislation (p 178). Professor Bradley suggested that "it is only when there has been a new terrorist event of some magnitude that the next instalment of anti-terrorist legislation is passed, and I have no answer to the question why these further instalments should be necessary" (Q 264). Ms Sankey argued that the sense that such legislation was "more of a political response, i.e. the Government needs to be seen to be doing something … has been very apparent over the last few years" (Q 135).

i) Prevention of Terrorism (Temporary Provisions) Act 1974

66.  Some witnesses went back to the example of the Prevention of Terrorism (Temporary Provisions) Act 1974. Professor Dickson cited this as "a bad example of hasty legislation on the terrorism issue … I take the point that, very often in the aftermath of a terrorist atrocity, politicians must be seen to be doing something, and there is a public mood often that demands that. However, I do not necessarily think that means that draconian legislation needs to be put in place. The [Act], passed in the aftermath of the Guildford and Birmingham bombings, is a good example of Parliament acting in haste and repenting at leisure … [it] was poorly drafted and hastily enacted. It did not, for example, take proper account of the requirements of the European Convention on Human Rights … Later, of course, it transpired that the seven-day detention power under the Act was struck down by the European Court of Human Rights, at a time when there was no derogation in place for the UK" (Q 233).

67.  Professor Dickson also told us that the Act provided additional arrest powers for the police in Northern Ireland as well as the rest of the UK, even though police in Northern Ireland had already been provided with a special arrest power the previous year (Q 233). He was also critical of the way in which the provisions, "although timetabled to lapse after six months unless expressly renewed, were in fact constantly renewed in one form or another year after year, even though the Act still had 'Temporary Provisions' in its short title. Many of the provisions remain in force to this day, having been transposed into the (permanent) Terrorism Act 2000" (p 84).

68.  Professor Walker asserted that "the Home Office has since admitted that it drew up contingency plans during 1973 … What was objectionable was not this stage of preparedness but the secrecy in which it was undertaken and the cynicism with which it was revealed only when the vigilance of Parliament was at its lowest ebb" (pp 178-9). He claimed that "various faults" in the legislation, such as the provision for exclusion orders, the fact that other measures such as electronic surveillance were not included, and the limit of the Act to Irish terrorism "may be attributed to the process of parturition of the Act, many which [faults] persist today" (p 179).

69.  Former Home Secretary Lord Baker told us that the annual renewal requirement "allowed Parliament to have a debate on the whole process, basically on the terrorist threat. It was always approved and it was always continued, but it allowed Parliament to comment upon it which I thought was very necessary" (QQ 94, 97-101). Similarly, the Law Society thought that this was a model of the use of sunset clauses in such legislation (p 97).

70.  However, Professor Dickson argued that the renewal requirement "gave the impression of being effective and transparent but, in the end, was not" (Q 234), and was an inadequate safeguard "against the perpetuation of bad laws". This was because the time available for debate was short, MPs were given little evidence on how the Act had been implemented, and the independent reviews of the emergency legislation did not address the central question of whether "the aims of the emergency legislation [could] be just as easily fulfilled through use of non-emergency laws … In Northern Ireland several provisions of the emergency legislation were kept in place long after their sell-by date" (p 84).

71.  Other witnesses sought to place the Act in the context of the time. Whilst Sir Joseph Pilling admitted that some elements of the legislation may have been deemed unpalatable later on, he also told us:

    "I can remember the national mood at that point. Roy Jenkins was Home Secretary. He was not, as I recall, unresponsive to the national mood. That did not make him a bad politician. I can imagine what the Opposition would have said if he had said, 'I'm going to set up a committee to look at this which will report in late 1975, and then we may have legislation on the statute book by the middle of 1977 or 1978.' He would not have had a very comfortable time … You cannot altogether ignore a national mood if you are a member of the Government" (Q 224).

ii) Criminal Justice (Terrorism and Security) Act 1998

72.  The Criminal Justice (Terrorism and Security) Act 1998, was, according to the Northern Ireland Office, "introduced in response to the Omagh bomb in August 1998 and following attacks on US embassies in Nairobi and Dar es Salaam" (p 75). Parliament was recalled for the specific purpose of passing the legislation, and its parliamentary passage was completed in two days—according to Professor Walker, "a remarkably short space of time" (p 178). The Irish Oireachtas was also recalled to pass a parallel piece of legislation in the Irish Republic.

73.  Professor Dickson agreed that the legislation was "put through much too quickly. It was another example of the Government wanting to be seen to be doing something. The main provision in it as regards allowing people to be convicted of membership of proscribed organisations on the word of a senior police officer was, as far as I know, never used … that legislation was put through for the optics, not because it was a genuine security requirement" (Q 235).

74.  The Director of Public Prosecutions for England and Wales told us that, to his knowledge, the legislation had not been used in the prosecution of any offence in England and Wales. The Director of Public Prosecutions for Northern Ireland told us that in relation to similar provisions in Northern Ireland, although consideration had been given to reliance on them, "having regard to the difficulties … there have not been any cases in which the police have been prepared to disclose intelligence in support of the opinion of a senior officer"[5].

75.  Sir John Chilcot, who "was on the point of leaving" the civil service "when the preparation began", agreed that "it was a bill that was a response to public outrage. Some of the provisions in it had been on the stocks for quite a long time, like the offence of directing terrorism. It is true that there had been, and I think probably continues to be, real debate about how useable some of these provisions are … this was a sudden crisis of public outrage on to which were, if you like, tacked certain propositions which had been iffy but, in that climate, were carried into legislation very quickly and frankly without the kind of justification which proper primary legislation would have required" (Q 18).

76.  The then Prime Minister, Tony Blair, had told the House of Commons that "we are … taking the opportunity of Parliament's recall to put into law long-held plans to make it a criminal offence of conspiracy to commit offences outside the UK"[6]. Professor Dickson argued that "the fact that additional clauses were added by the Government to deal with international terrorism I think was a disgrace at the time, and should not have been piggybacked onto the specific clauses for Northern Ireland" (Q 235). However, Sir Joseph Pilling was "slightly more committed to pragmatism" because "it has never been terribly easy to get bills into the normal legislative programme", and, in his judgment, the matter was "not particularly controversial" (QQ 194, 202).

iii) Anti-Terrorism, Crime and Security Act 2001

77.  The Anti-Terrorism, Crime and Security Act 2001 was introduced in the aftermath of the 9/11 attacks, and took a month to complete its parliamentary passage. Liberty told us that "while the tragic events of 11 September were understandably of the gravest concern, there was no apparent need for an immediate legislative response. The Terrorism Act 2000 had come into force only months earlier; designed to tidy up the powers in relation to terrorism and intended to be the last word on anti-terrorism powers and procedures for the foreseeable future. Despite this, the [Act] was rushed through Parliament and there was no proper opportunity for reasoned parliamentary debate … that is perhaps the classic example of rushed legislation which was in fact unnecessary" (p 56, Q 144).

78.  Liberty also criticised the inclusion of provisions not related to the terrorism threat, concerning disclosure of information for the purposes of general criminal investigations and the freezing of assets (p 49). JUSTICE cited the criticism made by the 2003 privy councillor committee (chaired by Lord Newton of Braintree), regarding "the importance of restricting legislation of this sort to dealing with terrorism, rather than using it as a vehicle for addressing more general criminal justice issues" (p 41).

79.  JUSTICE, in common with Professor Dickson and Professor Walker, pointed out that Part 2 of the Act had subsequently been used to make the Landsbanki Freezing Order 2008, "freezing not only the assets of the eponymous bank but also those of several other bodies including the government of Iceland" (pp 41, 85, 181).

80.  That being said, the Hansard Society argued that the Act provided a model in terms of safeguards, such as sunset clauses, an annual renewal procedure in relation to the detention provisions in Part 4 of the Act, and the provision that the Act should be reviewed by a privy councillor committee—the Newton Committee, referred to above (p 6).

iv) Prevention of Terrorism Act 2005

81.  The Prevention of Terrorism Act 2005 was passed after the Law Lords ruled that Part 4 of the Anti-Terrorism, Crime and Security Act 2001, which had empowered the Home Secretary to detain without trial foreign nationals he suspected of being international terrorists, was incompatible with the European Convention on Human Rights (JUSTICE, p 41; Dickson, p 84). JUSTICE criticised the fact that the legislation "was pushed through Parliament in a mere 17 days" in order to meet "an artificial deadline imposed by its own earlier emergency legislation of 2001 … it shows that emergency legislation can itself produce knock-on effects so that, four years down the line, you find that you are rushing through additional legislation in order to struggle to catch up" (p 42, Q 145). Dr Metcalfe argued that the 2001 and 2005 Acts were two of the "best examples I can think of where in policy preparation and the drafting of bills it is impossible for us to see on the outside how [the Government] are addressing these things." (Q 160) Liberty expressed the fear that the control order regime is becoming "a permanent 'parallel' fixture of our legal landscape", making it easier to renew the provisions "without proper consideration" (p 50).

82.  The Clerk of the Parliaments considered the Act to be "a prime example of emergency legislation … Though its passage in the Commons was not completed in one day, the final consideration of amendments in both Houses entailed a rare all-night sitting in order for the Bill to be passed by a certain date" (p 159). This was because of an "exceptional" case of "prolonged ping-pong", involving a "36-hour sitting of both Houses to reconcile differences of view … where each House considered the bill on five occasions following Third Reading in the Lords" (pp 162-3, 166-7). The Clerk of the House of Commons agreed, and stated that it "demonstrates that exchanges between the Houses can require significant additional time and test the House's ability to proceed with due attention and care and provide high level support service" (p 147). He also pointed out that the fast-tracking procedure "posed problems of scrutiny and timing" for the Joint Committee on Human Rights (JCHR) (p 149).


83.  The Dangerous Dogs Act 1991 is, for many, the cause célèbre of fast-track legislation. Dr Fox told us that this legislation "is exhibit A in the list of acts which exemplify the problem" (Q 4). The Law Society argued that the Act was "the standard example" of "legislation that is introduced in a rushed manner [that] is invariably bad" (p 96). Is this reputation justified?

84.  Dr Fox questioned why it was necessary to "push it through" in a "very, very tight timetable", since nobody "seriously thought that there was a prospect of dangerous dog savagery in the case of a 24/36 hour period". She conceded that it was easy "to forget the media furore that existed at the time. A huge amount of opprobrium would have fallen on the heads of Government Ministers had there been another attack … so I can understand the desire to legislate but it is the speed at which legislation takes place that is the real concern". She cited "problems with poor drafting" that meant "you ended up with a good number of legal cases", which "could have been avoided … had it been better looked at over a period of time" (QQ 4, 12). Mr Durno and Liberty broadly agreed (QQ 249, 266; p 49).

85.  Professor Bradley thought that it was "salutary to recall that the allocation of time motion for the Dangerous Dogs Bill … provided for the procedural motion and the second reading debate to end at 10 p.m., with the committee stage to follow until 3 a.m., and the report stage and Third Reading to be completed by 4 a.m. In defence of this remarkable motion, which I believe would not be acceptable today, ministers said that this gave the Bill the 'equivalent of two full days'" (p 92). By contrast, he added, the "House of Lords treated that Bill in precisely the amount of time that it deserved" (Q 250).

86.  Lord Baker, who as Home Secretary had been responsible for the Bill, told us that after Home Office consultation had been conducted the year before, "horrific" offences in 1991 had led him to take advice. "All the bodies came in … and all agreed that pit-bull terriers bred for fighting should be eliminated and legislation was designed to do that and also to stop three other breeds being brought into the country … It also introduced the system of mandatory destruction of dogs. There was no appeal". (Q 75)

87.  He argued that the purpose of the legislation "was very clear", and that the Act "worked very effectively" until later amendments "in effect eliminated mandatory destruction and that virtually undermined the main provision of the Bill because that allowed owners to go to court endlessly, endlessly and endlessly, and argue the toss as to what was a pit-bull terrier and a pit-bull terrier type … That would have all stopped if the Bill had been properly implemented in the way that I intended. So, this is a case of legislation being changed fundamentally by subsequent legislation making it very difficult to operate" (QQ 75-6).

88.  He also defended the fast-tracking of the Bill, on the grounds that "something needed to be done … Now, suppose I had decided not to do anything and, at the end of July, another child had been killed by a pit-bull terrier. What would they have been saying to me as Home Secretary? … If it happened again today … there would certainly be enormous pressure to do [reform the Act] and, what is more, the pressure would be to do it as soon as possible" (QQ 78-81, 84). Lord Baker also argued that, when issues came up in the spring or early summer, as the Dangerous Dogs Act did, then it was a choice between acting immediately, or waiting for the Queen's Speech, with the end result that legislation could not be passed for nearly a year. (QQ 62, 70)


89.  The Criminal Evidence (Witness Anonymity) Bill took under three weeks to complete its parliamentary passage in July 2008. The Government told us that the Bill was introduced "in response to a ruling by the House of Lords that the use of anonymous witnesses in a specific case had hampered the conduct of the defence to the extent that the trial had been unfair". They justified the fast-track procedure on the basis that "this judgment was unexpected" and "raised the prospect of a number of convictions for serious offences being overturned and could have compromised a number of pending prosecutions". The Government also asserted that there was cross-party support for the need to legislate (p 128).

90.  There was some disagreement amongst witnesses as to whether the Bill was a case of "best practice". Mr Durno thought that the Bill was "an ideal model of how fast-tracking should be done … there was a lapse of some six weeks between when the judgment was made and when the Act came into force, so … there was scope for the Government to undertake limited consultation. The Law Society was consulted and it did feel that it had had an effect on the legislation" (Q 263).

91.  The Hansard Society questioned whether the process "needed to be as fast as it was", in that the Bill underwent only six hours of debate in the Commons. They suggested that the debate could have been extended beyond 10pm or recess delayed by a day (Q 4, p 5). Likewise, whilst Professor Bradley acknowledged that "there was a real need for some urgent change in the law", he was also concerned at the short amount of time allowed for debate in the Commons, and the difficulties that the fast-track process created for the JCHR (Q 263, p 91). Professor Bradley drew our attention to the comments of Jack Straw, who, as Secretary of State for Justice, was responsible for the Bill:

    "Parliament should never legislate at the speed at which I am proposing unless it is convinced that there are overwhelming reasons for doing so"[7] (p 91).

92.  Ms Sankey told us that the fast-track procedure limited Liberty's ability to produce briefings and propose amendments on the Bill. (QQ 141-2) JUSTICE claimed that the legislation was "poorly drafted and misconceived", (p 43) and Dr Metcalfe was "extremely critical … of even the need to introduce the legislation in the first place … had this gone through at a much more considered pace … there would have been a lot more opportunity for Parliament and for the Executive to determine the correct policy in this kind of area" (Q 143). JUSTICE also argued that "the problems with the use of anonymous witnesses had been obvious for quite some time", and for this reason were keen to know what legal advice the Government had received (p 43, QQ 156, 160).


93.  The Banking (Special Provisions) Act 2008 was passed in three days in February 2008. The Government told us that "after the Government had decided and announced that it was necessary to take Northern Rock into temporary public ownership, the Bill was introduced on an expedited timetable in order to allow the position of the company to be resolved as quickly as possible. Extended uncertainty over who owned and ran Northern Rock would have risked destabilising the company, risking a loss of confidence on the part of customers, business counterparties or staff that might have led to substantial loss of value in the business or, worse, a further run on the bank. This would have potentially triggered the sort of financial instability that the Bill was intended to avert" (p 128). Mr Bryant asserted that "in the Banking (Special Provisions) Bill case I think we have been proven right. Prevarication would have undone us" (Q 349).

94.  Dr Fox told us that "on the face of it, ostensibly it was not necessary for the nationalisation of Northern Rock to happen in a day but, in light of what we subsequently learned in the progress of the Banking Bill, we know that there were other issues about which the Government were concerned and one can understand in terms of the wider economic situation perhaps it was thought appropriate and necessary within government to push that through more quickly than might otherwise have been necessary" (Q 7). The Law Reform Committee of the Bar Council agreed (p 168).

95.  However, Professor Bradley thought that there was "a difference between the attitude that Mr Jack Straw took in relation to the witness anonymity provision and the statement of the present Leader of the House of Commons, Harriet Harman" (Q 268) that "on occasions the Government can ask the House to act decisively when action is needed in respect of a certain situation once we decide that we want to ensure that the uncertainty is as short as possible and that we will bring in a Bill that will give the Government powers to act"[8]. Professor Bradley asserted that "that does not necessarily bring in a test of an emergency, an external event, justifying this; it is a government decision that decisive action is needed and then the House can respond … the issue that [critical MPs] were dealing with there is: why did all stages of the Bill in the Commons have to be taken by midnight in a total of seven and a half hours, and why could the Bill, a 24-page bill, not have justified coming back to it on the following day? (Q 268)"

96.  The Clerk of the Parliaments told us that though the House of Lords Delegated Powers and Regulatory Reform Committee was able to report on the Bill, and "only two of the Committee's four recommendations were accepted, below the usual acceptance rate for non-emergency bills" (p 161).


97.  These case studies of fast-track legislation illustrate the concerns expressed by many of our witnesses in terms of the problems and issues that the fast-tracking of legislation raises. Of course, many of these concerns are a matter of debate—was the case for fast-tracking made? Could more time have been provided even if the case was made? Did the legislation turn out to be effective? Was sufficient attention given to potential safeguards, and did they work in practice? The answers may differ in relation to each of these case studies, and indeed in relation to any piece of legislation where the fast-tracking procedure was utilised. Yet the fact that each one of these cases has prompted debate, even in those examples where the argument in favour of fast-tracking was generally accepted, makes a strong case for considering how the fast-track procedure can be improved and better scrutinised.

The tabling of late amendments to a bill proceeding at the normal pace

98.  One distinct but linked issue relates to the tabling of amendments at a late stage to a bill going through its legislative process at the normal pace. The Clerk of the Parliaments stated that "the late tabling of significant Government amendments to non-emergency bills … may, in effect, amount to emergency legislation, particularly if tabled in the second House" (p 159).

99.  The Law Society argued that this trend "needs to be curtailed" (p 96). Although the Society had no objection to amendments being tabled that reflected an earlier undertaking, "more frequently, the Government seems ready to introduce partially formulated Bills, leaving officials to continue to work on the drafting of further provisions right up until the last possible moment … as a consequence, the Government is having to make quite significant and substantial changes to the legislation to get it into a decent state as it is going through Parliament … The result is that these late tabled clauses are subjected to minimal or no scrutiny in Parliament, and there is little or no opportunity for interested parties to offer any effective comment" (pp 97-8, Q 276).


100.  As in the case of fast-track primary legislation, witnesses drew our attention to cases involving anti-terrorism legislation. Mr Durno referred to the example of the Counter-Terrorism Act 2008 (which we had raised in our Call for Evidence), when at Third Reading "the Government introduced provisions relating to anti-money laundering … there was a great uncertainty … and we had to seek an urgent meeting with the Treasury to clarify that these provisions would not have an effect on solicitors … It was appropriate for money laundering to have been included in the Act, but it should have been included at a much earlier stage so that people had an opportunity to scrutinise the provisions and make sure that the provisions had the effect they were intended to have and not catch people, such as solicitors, unintentionally" (QQ 280-1).

101.  Dr Metcalfe agreed that such provisions were "an excellent example of these kinds of problems … something that was introduced at the last minute but, if the Government had thought about, it would have taken measures far in advance" (Q 156). Ms Sankey told us that the provisions "were not expect[ed] in the slightest and really did seem to come out of the blue" (Q 156). She drew our attention to the problem that such late amendments pose for organisations such as Liberty which seek to influence the legislative process (Q 156, p 51).

102.  The Law Reform Committee of the Bar Council told us that "the provisions regulating demonstrations within a designated area were introduced at a relatively late stage in the parliamentary history of the Serious Organised Crime and Terrorism Act 2005 ('SOCTA'). They introduced a complex regime for regulating demonstrations which are now widely considered to be very difficult in practice for the police to operate … and would undoubtedly have benefited from examination at greater length" (p 168).

103.  Professor Bradley referred to section 55 of the Nationality, Immigration and Asylum Act 2002, which "was intended to prevent support from being given to destitute asylum seekers who did not claim asylum 'as soon as reasonably practicable' after arriving in the United Kingdom … It was one of several government amendments tabled at a very late stage, when the Bill had passed through all stages in the Commons and had completed its committee stage in the Lords. Under pressure in the Lords, parts of the Bill were then sent back for further consideration in committee, the clause was debated and on a vote was added to the Bill. In the limited time available, the Joint Committee on Human Rights considered the human rights implications of the new clauses and reported that it was difficult to envisage a case where support could be withheld from a destitute asylum seeker without there being a breach of his or her Convention rights … When the Bill returned to the House of Commons, which for the first time could consider the new clause, a guillotine motion applied to the consideration of the many Lords' amendments to the Bill. Less than 15 minutes was available for the House to debate the clause restricting support to asylum-seekers, and a vote defeating an opposition amendment was taken when debate of the clause had barely started. This problematic provision gave rise to numerous cases of judicial review … until the Law Lords eventually held that the section was unworkable, essentially for the reason given by the Joint Committee on Human Rights" (p 96. See also p 95, Q 280).

104.  The Law Society told us that the Planning Act 2008 was a "good example of the abuse of tabling new clauses late" (para 13). Mr Durno told us that "they had 18 sessions looking at the Bill in committee and in the 17th and 18th sessions there were a dozen new government clauses introduced, and the majority of those clauses were introduced not by a minister, but by a government whip, and the explanation for the new clauses was a paragraph long in Hansard and there is then no subsequent debate. That seems, to me, to be a perfect example of producing bad legislation; it is not being scrutinised effectively" (Q 276).

105.  Mr Bryant admitted that this was something "that can happen … as a government we are very keen not to proceed in that direction and the business managers try to prevent as much as possible that from happening, but there are some very exceptional moments when that does happen … Late stages are a bad idea because … the quality of scrutiny is improved by going through different stages in both Houses against a different set of circumstances and with different ways of approaching an issue. We very much dislike doing it. We are constantly writing to ministers and saying, 'Thou shalt not do it.' … 'Is this bill really ready?' and 'Thou shalt not introduce new elements except in response to amendment from other parties, and that shall only be at committee stage' and therefore very much fighting against the late introduction of amendments, in particular on new areas … I would say there is a very robust process that goes on in government to clamp down on ministers who might just have had a good idea on a Thursday afternoon and want it in the bill by next Friday with as little scrutiny as possible. But there are very rare occasions when, for instance, an independent report comes out which calls for urgent action in a particular area, and there is a legislative channel that is available, and that is, again, when we would kick in with 'Let's talk to all the parties and see whether they are content with this process'" (QQ 367, 387, 398).

106.  The tabling of late amendments to non-fast-track primary legislation is a distinct issue from fast-track legislation. Given that the central focus of our inquiry is an analysis of fast-track legislation, we have only been able to touch on the late tabling of amendments. Yet, as the Clerk of the Parliaments reminded us, it may amount to the same thing in terms of its effect. We are concerned at the number of examples of this phenomenon that have been brought to our attention during the course of this inquiry. Whilst noting the Deputy Leader of the House of Commons' assertions that "we very much dislike doing it", and that there are occasions on which it is necessary to bring forward such amendments, the late tabling of amendments inevitably means that there is less time available to scrutinise them. The Government should redouble their efforts to minimise the number of late amendments they table.

5   Appendix 3. Back

6   HC Deb, 2 Sep 1998, col 695. Back

7   HC Deb, 26 Jun 2008, col 516. Back

8   HC Deb, 18 Feb 2008, col 41. Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2009