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.
I) CONSTRAINED PARLIAMENTARY SCRUTINY
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).
II) THE DEGREE TO WHICH LEGISLATION
IS FAST-TRACKED
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).
III) DOES FAST-TRACKING OF LEGISLATION
LEAD TO BAD LEGISLATION?
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).
IV) PRESSURE ON THE PROCEDURAL PROCESS
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).
V) PRESSURE ON CAMPAIGNERS AND INTERESTED
ORGANISATIONS
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).
VI) THE "SOMETHING MUST BE
DONE" SYNDROME
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).
VII) EXAGGERATING THE CASE FOR FAST-TRACKING
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).
VIII) INCLUDING NON-URGENT MATTERS
IN A FAST-TRACKED BILL
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).
IX) "ACT IN HASTE AND REPENT
AT LEISURE"
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).
X) EXECUTIVE DOMINANCE OF THE FAST-TRACK
PROCESS
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).
XI) DIFFERENCES BETWEEN THE COMMONS
AND THE LORDS
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.
A) ANTI-TERRORISM LEGISLATION
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).
B) DANGEROUS DOGS ACT 1991
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)
C) CRIMINAL EVIDENCE (WITNESS ANONYMITY)
ACT 2008
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).
D) BANKING (SPECIAL PROVISIONS)
ACT 2008
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).
Recommendation
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).
CASE STUDIES OF LATE TABLING OF
AMENDMENTS
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
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