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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