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

Chapter 5: delegated legislation which is fast-tracked

129.  The overwhelming majority of the evidence that the Committee received during its inquiry into fast-track legislation related to primary legislation. But, whereas each year a few dozen pieces of primary legislation are passed, several thousand pieces of delegated or secondary legislation are scrutinised by Parliament.

130.  This Chapter considers issues surrounding delegated legislation which is fast-tracked through its parliamentary scrutiny. We also examine two pieces of primary legislation—the Civil Contingencies Act 2004 and the Health and Social Care Act 2008—which provide the government with emergency order-making powers. These powers—which have not been used to date—would be subject to fast-tracked parliamentary scrutiny if they were.

Statutory instrument procedure

131.  In his written evidence to us, the Clerk of the Parliaments most helpfully set out a great deal of technical information about the different kinds of parliamentary control over statutory instruments, and the role of the scrutiny committees. We have summarised the main points of that below. The full detail can be found in the Clerk of the Parliaments' written evidence (pp 163-6).

132.  The main categories of parliamentary control over statutory instruments are:

·  no formal procedure (instrument laid before Parliament but not subject to negative or affirmative procedure);

·  negative procedure;[13]

·  'draft' affirmative procedure;

·  'made' affirmative procedure.

133.  The Joint Committee on Statutory Instruments (JCSI) provides technical and legal scrutiny of all statutory instruments within its terms of reference. The House of Lords Merits of Statutory Instruments Committee considers the merits of instruments within its terms of reference.

Made affirmative procedure

134.  The made affirmative procedure is often used in Acts where the intention is to allow significant powers to be exercised quickly. It is a kind of "fast-track" secondary legislation. In most cases the parent Act specifies which form of procedure should be applied to instruments made under it. In some cases however the Act may provide for either the draft affirmative or the made affirmative procedure to be used. If the made affirmative procedure is used then the instrument is effective immediately.

135.  Instruments laid as made instruments almost inevitably place a serious time pressure on those drafting them. The JCSI's 8th report of this session[14] drew the special attention of both Houses to three statutory instruments which had been laid as made affirmatives. In its memorandum to the JCSI, Her Majesty's Treasury explained that the process "had inevitably placed serious time pressure" on them and that "revisions were being made to the terms of the instruments down to the moment that they were made"[15].

Draft affirmative procedure

136.  Once a draft affirmative instrument has been laid before Parliament, the JCSI will normally consider it within seven to 20 days. In the House of Lords, the terms of Standing Order (SO) 73 provide that an affirmative instrument may not be approved by the House until the JCSI has reported on it.

137.  There are two ways by which the Government may seek to expedite these procedures. The first is for a Minister to write to the JCSI and request that an instrument be considered more quickly than the standard timeframe would allow. The Clerk of the Parliaments in his written evidence explained that sometimes this request was owing to genuine urgency and at other times was seemingly more for administrative convenience. It is for the Committee to decide whether to accede to such requests. The Clerk of the Parliaments pointed out that taking statutory instruments at short notice inevitably means that other work is disrupted (p 164).

138.  The second way that a Government can seek to fast-track proceedings on a draft affirmative instrument is to move a motion that SO73 be dispensed with, allowing an approval motion to be moved very shortly after the instrument has been laid, but denying the House the measure of assurance offered by the JCSI. We see it as a measure of the high regard in which the JCSI is held that this has happened on only five occasions since 1990 (Clerk of the Parliaments, p 165).

139.  Whilst accepting that in a very limited number of circumstances there may be grounds for seeking to fast-track parliamentary procedure of draft affirmative instruments, we take this opportunity to remind the Government of the importance of executive self-restraint.

Negative procedure

140.  It is a convention that negative instruments should not come into force less than 21 days after laying before Parliament. During this time, a Member of the House may table a prayer to annul the negative instrument. Breaches of the 21 day convention, which are monitored by the JCSI and the House of Lords Merits of Statutory Instruments Committee, may be understandable, but in the interests of clarity and good governance should be avoided.

Secondary legislation during parliamentary recesses

141.  In Chapter 3 we considered the impact of parliamentary recesses on the passage of primary legislation, particularly fast-track primary legislation. The Clerk of the Parliaments' written evidence explained that draft affirmative instruments cannot be laid during a parliamentary recess. Negative instruments and made affirmative instruments may be laid during a recess but the periods specified in relation to negative and made affirmative instruments (i.e. the 40 days for which a negative instrument must lie before both Houses, and the specified period within which a made affirmative instrument must be approved) are suspended. The effect of this is that "if a negative or made affirmative statutory instrument is laid at the start of a recess it can come into force and remain in force for a substantial period of time before it can be considered by either House" (p 166).

Case studies of emergency order making powers

142.  We now turn to consider the case studies of the Civil Contingencies Act 2004 and the Health and Social Care Act 2008, raised by witnesses, which provide the government with emergency order-making powers.

143.  Part II of the Civil Contingencies Act 2004 confers on the Government the power to make temporary emergency regulations in the event of a large-scale national emergency. Such regulations are limited in duration to 21 days, unless Parliament votes to extend this period before it expires. Professor Walker told us that the "regulation-making powers [in Part II of the CCA 2004] are of awesome scope" (p 181). Mr Durno said that the Civil Contingencies Act has extraordinarily broad-ranging powers for ministers to make regulations (Q 275).

144.  The order-making powers under Part II of this Act have not so far been used. Mr Durno told us that "it is very reassuring that ministers have been wary of having very fast recourse to the Civil Contingencies Act. They are dealing with it sensibly … they are only going to use it in serious situations" (Q 283). Dr Metcalfe agreed with this (Q 158) and Ms Sankey went further in explaining that she believed "there is a political imperative … for the Act not to be used as the Government is not keen on making a statement on the issue as to whether the country is facing a national emergency or bringing in powers under the Act" (Q 158).

145.  The emergency powers allowed for under the Civil Contingencies Act 2004 were judged to be acceptable by some of our witnesses. Professor Dickson told us that it "provides for an approach to emergency powers which is consistent with the rule of law" and that its safeguards were appropriate (Q 242). Professor Miers agreed with this (Q 321). Professor Walker did not share this view and doubted whether the limits of the order-making powers were as "transparent and robust" as the Government claimed (p 181). Dr Metcalfe told us that he agreed with Professor Walker's "analysis of the defects in the procedure, particularly relating to the level of proportionality, the seniority of the minister involved, the objectivity of the test required and the objectivity of the need to take emergency steps" (Q 158).

146.  Mr Bryant told us that the order-making powers contained within the Civil Contingencies Act 2004 were not a template for all other emergency legislation. He pointed to the Health and Social Care Act 2008 which provides for a regime for dealing with a public health crisis and contains different order-making powers (Q 383). The Government submitted separate written evidence about the powers contained within the 2008 Act (pp 130-1).

147.  In their report on the Health and Social Care Bill, the Joint Committee on Human Rights (JCHR) had criticised these order-making powers: "We consider that, in the light of the types of emergency which the Government considers these regulations may be necessary to meet … the emergency procedure in this Bill should be amended to reflect the provisions of the Civil Contingencies Act 2004"[16].

148.  Seeming to agree with this point of view, Mr Durno told us that the Civil Contingencies Act 2004 provided a useful starting point and that it might be used as a reference point for future pieces of legislation containing emergency powers to provide a common approach (Q 271).

149.  We did not receive—or seek—sufficient evidence on this point to be able to judge whether the order-making powers in the Civil Contingencies Act 2004 are more or less appropriate than the bespoke order-making powers contained within the Health and Social Care Act 2008. We shall, during the course of our bill scrutiny activities, pay close attention to future proposed emergency order-making powers.

13   This is the most common procedure for statutory instruments laid before Parliament. Back

14   Joint Committee on Statutory Instruments, Eighth Report of Session 2008-09 (HL 53, HC 3-viii). Back

15   ibid., Appendix, para 2 (p 5). Back

16   Joint Committee on Human Rights, 12th Report (2007-08), Legislative Scrutiny: 1) Health and Social Care Bill and 2) Child Maintenance and Other Payments Bill: Government Response (HL 66, HC 379), para 1.43. Back

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