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


Chapter 4: fast-tracked legislation relating to northern ireland

107.  An analysis of fast-tracked primary legislation in recent years reveals one outstanding trend—the statistical preponderance of legislation relating to Northern Ireland.

Fast-tracking before 1995

108.  As with fast-track primary legislation more generally, the fast-tracking of Northern Ireland legislation is not a new phenomenon. Sir John Chilcot, former Permanent Secretary at the Northern Ireland Office (1990-97), reflected on his own experience in the civil service dating back to 1969, when the then Home Secretary, Jim Callaghan, had "commissioned contingency plans, including draft legislation, against the emerging crisis in Ulster and First Parliamentary Counsel produced not only draft provisions … but an invaluable guide … The Passage of Bills with Unusual Expedition. It was a handbook but also an analysis of how the processes of parliamentary scrutiny and endorsement could be carried through at great speed. It was not needed for four years but, when we came to 1973 to the Northern Ireland Emergency Provisions Bill of that year, that preparation of process, as well as the preparation of content, proved to be very important" (Q 3).

109.  Professor Bradley referred to the remarkable circumstances pertaining to the Northern Ireland Act 1972, passed after a High Court ruling that the army did not have legal powers of arrest, search and seizure (see Professors Miers and McEldowney, p 111):

    "The court decision was made public at around midday and by about three o'clock the Attorney General was saying, 'There will be legislation today', and the Lord Chancellor repeated this in the Lords at four o'clock. The Lord Chancellor, Lord Hailsham, said he had not had the advantage of reading the judgment and then Opposition Members asked to see the judgment which they were reversing and it was said, 'Sorry, we do not have copies. It is a 30-page judgment and we couldn't make copies available in the time'. It was coming through in instalments by telex and the telex was not easy to be photocopied, so the leaders of the Opposition Parties offered their photocopying facilities to the Government to help them. There was some humour of that kind, the point being that in both Houses procedures were adapted so that, even before most people had had a chance to read the judgment, the law was changed and there was considerable debate as to whether they were changing the law or declaring it" (Q 263).

Fast-tracking since 1995

110.  There has been a steady stream of fast-track legislation relating to Northern Ireland in recent years. The Northern Ireland Office's written submission confirmed that, since 1995, thirteen bills have been taken through Parliament by Northern Ireland Office Ministers which were subject to expedited passage (p 69). Professor McEldowney told us that 40 per cent of Northern Ireland legislation had been fast-tracked (Q 332). In addition, as the Northern Ireland Office told us, two Home Office bills whose progress was fast-tracked were taken through Parliament in that time following incidents related to Northern Ireland (p 70).

111.  The current Permanent Secretary, Sir Jonathan Phillips, told us that "in a minority of cases the security background is a factor, but much more significantly … the political context is the really dominating factor. I think creating categories is difficult, but if I had to go for two, I would identify maintaining momentum in what was always and remains a difficult political process, a rather fragile political process, and where it is not a question of maintaining momentum, it has been on a number of occasions a question of avoiding a collapse in that process" (Q 186).

A) WAS THE FAST-TRACKING OF NORTHERN IRELAND LEGISLATION JUSTIFIED?

112.  Sir Jonathan Phillips and Sir Joseph Pilling, the previous Permanent Secretary (1997-2005), both defended the fast-track process as necessary in each case. Sir Jonathan cited the Location of Victims' Remains Bill 1999 as the only piece of legislation "not clearly required to maintain the momentum of the process", but asserted that "none of us would have wanted to stand in the way of the real humanitarian issue that arose once the IRA had said that they knew the whereabouts of a certain number of bodies. That is an odd exception" (Q 187). He also argued, with reference to the Northern Ireland Assembly Elections Act 2003 and the Northern Ireland Assembly (Elections and Periods of Suspension) Act 2003 that Parliament had been able to influence or amend the legislation. (Q 187)

113.  Sir Joseph Pilling asserted that the set of fast-tracked bills "stood up quite well to being tested in reality … This may be merely an illustration that Northern Ireland legislation is rather simpler than that of other government departments, I do not know, but I think that some legislation that goes through an exhaustive process in both Houses does sadly turn out to be faulty when it is tested in the harsh light of day. I think the record of these bills has really been quite good" (Q 187). Baroness Royall claimed that "where we are politically now in respect of Northern Ireland demonstrates that those pieces of legislation were necessary and it was necessary to expedite them" (Q 368).

114.  Mr Durno broadly agreed that fast-tracking had been justified in relation to Northern Ireland legislation (Q 263), whilst Sir John Chilcot acknowledged that "the real-life human situation" of negotiations, for instance in Northern Ireland, "may require immediate legislative authority". He added that there is often "a negotiating context of the signals you give to the other side outside the negotiating room by your firmness of intent of boldness in action". (QQ 6, 21)

115.  Professor Dickson also thought "Northern Ireland has been a special case for quite a long time … [and] by and large there has been a justification for the enactment of that legislation quickly" (QQ 228-9). He accepted that the Location of Victims' Remains Bill "is difficult to justify as requiring fast-tracking; although … the humanitarian aspect of that bill may have been an alternative justification, and indeed I would support that" (Q 238). He did express some reservations about fast-tracking of the Remission of Sentences Bill 1995 (Q 235), but he was more concerned overall with the Order in Council procedure used during the direct rule period, "which is not a great way of passing legislation and there definitely is a democratic deficit in that respect" (Q 228).

B) HAS FAST-TRACKING BECOME 'THE NORM' IN NORTHERN IRELAND?

116.  Having said this, Professor Dickson was conscious that the political parties in Northern Ireland "have to some extent become habituated to the fact that they can push the British Government to the limits when pressing for legislation. At the same time, of course, one must bear in mind that Sinn Féin MPs do not participate in Westminster debates. For them, the problem of legislating for Northern Ireland is not theirs: that is an English/British problem which they are quite happy to pass to the British authorities" (Q 229). Sir Joseph Pilling acknowledged that the exertion of pressure to bring a negotiation to an end "is of declining power as an argument when people can observe that Parliament will expedite legislation" (Q 217). Professor McEldowney agreed that the large proportion of fast-track legislation "created a question as to why that is so … clearly there is a culture that arises from an existing practice, and if that practice becomes embedded without being questioned there are obvious dangers" (QQ 332-3).

117.  Sir John Chilcot told us that his sense, "particularly since I left ten years ago, is that the bar has progressively been lowered. It has been seen to be really increasingly easy by other political parties in Northern Ireland and by other governments—'Oh, the UK Government will get some legislation through in a hurry. If we need another eight weeks, we can have it and there is no problem about that'. That seems to me a weakening of what should be good and strong process control over emergency legislation. It should not be that easy to agree in the case of a taut negotiation, 'Oh, it is all right, we will change it and make it all right by Thursday'" (Q 21).

118.  Sir Jonathan Phillips did not think that that was "a fair way of describing the recent history", because, especially since the 1998 Good Friday Agreement, "the Government has had … a fundamental responsibility for keeping the show on the road. I think in each of the cases which we have listed, there is … a good case for proceeding with urgency. I do not accept that because the circumstances are somewhat different from those which were pertaining when John Chilcot was Permanent Secretary that that necessarily means that the bar has been lowered" (Q 216).

119.  However, Sir Jonathan Phillips did accept that "you can observe in a negotiating context that if an expedited procedure has been used once, then it may well have created an expectation in people's minds that it could be used again. That of course must be a possibility" (Q 216). He also accepted that there was a sense of growing impatience with the circumstances pertaining to Northern Ireland legislation, and that there has been "a lot" of fast-tracked legislation in that context (Q 213). Yet "the most significant and substantial measures in the policing field, in the criminal justice field, in terms of processions, parades, and, indeed, the major 1998 Act, were not rushed through in that way. They were treated according to normal parliamentary procedure" (Q 213). Mr Bryant made a similar point. (Q 373)

Case study: the Northern Ireland Act 2009

120.  During the course of our inquiry, a new piece of fast-track legislation was introduced and passed, the Northern Ireland Act 2009. According to the Northern Ireland Office, "the Act paved the way for the future devolution of policing and justice in Northern Ireland", and was "required urgently both to maintain political momentum and give effect, at the earliest opportunity, to the agreement reached between the First and deputy First Minister" on 18 November 2008 (p 74). The Bill was introduced to the House of Commons on 23 February, took all other Commons stages on 4 March, and was debated by the House of Lords on 9 and 11 March. It received Royal Assent on 12 March.

121.  In a letter to us, the Secretary of State for Northern Ireland, Shaun Woodward MP, emphasised that "the Government remains committed to ensuring that the necessary legislation is in place to enable the process to move as quickly as the Assembly wants it to. It is, in my view, absolutely critical that it is not the UK Government or Westminster that is seen to be delaying progress on the arrangements for devolution that the Government undertook to make". He told us that, in order to leave open the possibility of completing the further necessary steps to achieve devolution by the summer, "it is necessary for the Northern Ireland Bill to receive Royal Assent by mid March"[9]. Sir Jonathan Phillips made similar points in his evidence to us. (Q 203) Professor Dickson agreed that "the devolution of policing and criminal justice is an exceptionally important issue in Northern Ireland and a very sensitive one for the political parties there … and therefore I think that it was right to put it through as quickly as possible" (Q 230).

122.  In Chapter 3, we reflected upon the Government's evidence in relation to the need for cross-party agreement for fast-tracking to proceed. This concept takes on a different meaning in relation to Northern Ireland, given the different party political dynamic that operates there. Mr Bryant acknowledged the importance of working with the Northern Ireland parties in relation to such legislation (Q 355). When we asked if Northern Ireland's political parties supported the fast-track procedure in relation to all 13 bills, Sir Jonathan Phillips replied that "my general answer … is yes. In every single case did every single party? No" (QQ 189-90). He also told us that the Government seek to obtain broad support from the Northern Ireland parties to fast-track, except in circumstances where the Government themselves reach a conclusion that urgent action is necessary. (Q 191) Sir Joseph Pilling added that it would often have "seemed obvious" to all concerned that it would be necessary to fast-track legislation "in order to keep the process going … it would be wrong to give the impression that the government of the day wanted it dealt with this way and tried to sort of talk people into it. It fell out from the process" (Q 192).

123.  Yet in relation to the Northern Ireland Bill in 2009, MPs from across the parties, including the DUP and the SDLP, spoke against the Government's proposed allocation of time motion. The DUP Leader, and First Minister for Northern Ireland, Peter Robinson MP MLA, told the House of Commons that the Bill was being dealt with in a "constitutionally tacky way"[10]. Sir Jonathan Phillips told us that he was "not sure his remarks were necessarily addressed to the question of expedited passage itself, or whether they were addressed to the precise question of the timetabling in the House of Commons" (Q 205). He did however acknowledge "on the record that the First Minister in Northern Ireland, as a Member of Parliament, did not support the fast-tracking" (Q 211).

124.  There was also criticism of the fast-track process during the Second Reading debate in the House of Lords. In our report on the Bill we concluded that "while we understand the political requirements for progress to be made on the process of devolution of policing and justice functions to Northern Ireland, it is not … obvious to us that circumstances exist which justify the bill being put on a fast-track legislative process in the House of Commons and the House of Lords. The bill is, in effect, amending the uncodified constitution of the United Kingdom and such changes should be made only after careful consideration"[11].

125.  Baroness Royall acknowledged that "there were many complaints about the expedited nature of the bill of which I was well aware, but, having said that, I was never aware that anybody felt under pressure in debate. The noble Lords were able to raise whatever concerns they had and the Government were willing and able to respond, so I did not feel that scrutiny was jeopardised in any way" (Q 365).

126.  The Secretary of State's letter had also referred to "a purdah period for the European elections" as a further justification for fast-tracking.[12] The term was unknown to us in the context of European elections. Baroness Royall and Mr Bryant told us that they, too, were unfamiliar with the term in that context. (QQ 374-7) Sir Jonathan Phillips thought that the Secretary of State had in mind "a more general point, which is that elections in Northern Ireland are occasions for divisions being asserted rather than consensus being achieved … To that extent, getting this legislation agreed and on the statute book is helpful before the divisiveness of an election campaign intervenes. I think the point he was making technically in relation to using the word 'purdah' was a reflection not of parliamentary activity but of activity in the Northern Ireland Assembly, which needs to take a resolution during that period if the summer deadline was to be met" (Q 206).

127.  We do not accept the use of the term "purdah" by the Secretary State for Northern Ireland in relation to elections to the European Parliament. We urge the Government to clarify their interpretation of the meaning of the term in their response to this report.

Conclusion

128.  Mr Bryant told us that it was very much the Government's ambition to be able to treat Northern Ireland legislation normally, but "I do not think it is quite where we have got to yet" (Q 371). Baroness Royall added that, "over the past 15 years or so, [Northern Ireland] probably has been a special case, but I think that is no longer the case. The last piece of legislation was, I would hope, the last piece in the emergency jigsaw in relation to Northern Ireland. I cannot be absolutely confident but I would hope that that is the case" (Q 373). Whilst we acknowledge that it has been necessary to fast-track the process of a number of pieces of Northern Ireland legislation in recent years in order to maintain the momentum of the peace process, fast-tracking should not be 'the norm' in the future in relation to Northern Ireland legislation. We welcome the Deputy Leader of the House of Commons' assertion that it is the Government's wish to treat Northern Ireland legislation normally, and we join with the Leader of the House of Lords in her express hope that the Northern Ireland Act 2009 was "the last piece in the emergency jigsaw".


9   Appendix 4.  Back

10   HC Deb, 4 Mar 2009, col 870. Back

11   Northern Ireland Bill, op. cit., para 9. Back

12   Appendix 4. Back


 
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