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

Chapter 6: potential improvements to the fast-track scrutiny process


150.  In Chapter 3, we examined the various problems and issues surrounding the use of fast-track legislation that were brought to our attention by witnesses. In this Chapter we consider potential safeguards and improvements that might be built in to the fast-tracking process, to help ensure that the constitutional principles that we identified in Chapter 1 are upheld when fast-track legislation is being considered

151.  In considering such proposals, we also bear in mind three principles identified by our witnesses:

(a)  "The best way to deter the unnecessary resort to emergency legislation by governments is for Parliament to make clear that there is a constitutional price to be paid for bypassing the ordinary procedures for making law … It is therefore incumbent upon Parliament to order its own procedures in such a way as to make the resort to emergency legislation not as difficult as possible but rather as unpalatable as it ought to be in a democracy governed by the rule of law" (JUSTICE, pp 44, 46).

(b)  "There is a constitutional principle that bothers me. The constitutional principle is this, that urgency should not set the principle. The principle should be that the bill be given a robust, transparent analysis" (Professor McEldowney, Q 296).

(c)  "The House of Lords should take its own decision as to what is required … we have a bicameral legislature and it must be for this House to decide for itself what it wishes to do … one would hope that this independent decision by the House of Lords is kept at all costs and is made a real test for the Government to satisfy" (Professor Bradley, Q 250).

152.  We acknowledge that it may in certain circumstances be necessary to resort to the use of fast-track legislation, and as such, there should be some mechanism available for Parliament to allow a piece of legislation to be fast-tracked. That being said, it is imperative that such fast-tracking of normal parliamentary procedure should only occur where strictly necessary. In order to ensure this, we believe that a number of improvements to the current process can be made.

153.  This House's constitutional responsibilities are heightened in circumstances when fast-track legislation is being proposed. It is therefore incumbent upon this House to ensure that the standards of legislative scrutiny are maintained. Fast-track legislation affects both Houses of Parliament, and we therefore hope that our findings and recommendations will be of interest to colleagues in the House of Commons. It is however for that House to decide on its own procedures. Our recommendations are designed to improve the way that the House of Lords scrutinises fast-track legislation.

Potential improvements


154.  Several witnesses recommended a number of overarching reforms. These include:

i) Publication of formal legal advice

155.  JUSTICE argued that a mandatory requirement on government to make public the legal advice it had received on a piece of legislation would be "a valuable corrective" and "one of the strongest checks against the unnecessary resort to emergency legislation" (p 45. See also Q 163). Dr Metcalfe added that "when it comes to emergency legislation, you are stepping outside the normal bounds and I think that increases the case for disclosure of legal advice … It seems to me that disclosing the legal advice may in fact reveal that the Government's case for the assessment of necessity is much weaker than it maintains in public" (QQ 176-7).

ii) Introduction of a written constitution

156.  JUSTICE also argued that "the problem of emergency legislation highlights one of the benefits of jurisdictions with written constitutions, in that the scope of emergency powers are typically defined by the constitution itself" (p 45). However, Dr Metcalfe added that "the debate about a written constitution is for another day but there are obviously mirrors. We would not press this point because I think even the war on terror on 9/11 has shown the limitations of written constitutions … If there is a lesson from other jurisdictions, most of which have written constitutions, it is generally speaking that the clearer the limits on emergency powers the better" (Q 179).

iii) Business Committee

157.  The Hansard Society argued that "a Business Committee or Legislation Steering Committee should be established to manage the parliamentary timetable. It would help improve agreement of and transparency in the management of emergency legislation and allow for greater flexibility in the timetabling of emergency debate thus improving the scrutiny process" (p 40. See also Q 30).

158.  Whilst we note the arguments made in favour of such proposals as the publication of formal legal advice that the government have received, a written constitution, or a Business Committee or Legislation Steering Committee, there are, of course, also arguments against each of these. In addition, the implications of such reforms go far beyond the remit of this inquiry.


159.  A number of witnesses emphasised the importance of pre-legislative scrutiny. In the context of anti-terrorism legislation, Professor Walker argued that an "obvious step … would be to demand from the executive the drafts of legislation well before they are launched in circumstances too fraught to allow proper scrutiny" (p 180).

160.  Dr Fox stated that whilst formal consultation might not be possible, some form of internal consultation often does take place. She cited the example of the Criminal Evidence (Witness Anonymity) Bill. She suggested that an onus might be placed on the Government to contact "a standing list of stakeholders" in relation to a specific policy area, "and facilitate a means" for them "to put fast input into the process". This might involve "in effect establishing a Standing Committee of experts in certain policy areas department by department". She also suggested that it might be possible for a select committee to hold an urgent evidence session on occasions where the fast-tracking process is more extended. However, she "would not want that to be a procedural rule because I think that it would be very difficult to make that a hard and fast ruling. It would differ on a case-by-case basis" (QQ 44-5. See also Q 36).

161.  Lord Baker told us that in the case of the fast-track legislation with which he had been involved, he "would have been quite happy" for "a backbench scrutiny committee" to have heard evidence from key witnesses: "I can see no harm in that at all, quite frankly … but I think that it has to be a reasonable number. If you are doing fast-track legislation, you cannot have Uncle Tom Cobbley and all turning up. You have to have the reasonable interested parties" (QQ 107-8).

162.  Mr Durno suggested that legislation should be "expose[d] … before it is introduced to one or two parties … If you can speak to one or two organisations that you are going to get sensible input from, it is at least one opportunity that you have got" (Q 285). Mr Bryant told us that, in relation to the Northern Ireland Act 2009, "we were very keen to have first reading as early as we could so that the bill was out there and people could refer to it and there could be proper public discussion, because that often happens long before second reading" (Q 366).

163.  We continue to affirm our strong support for pre-legislative scrutiny and our desire to see it used more routinely. We acknowledge that the opportunities for pre-legislative scrutiny of fast-track legislation will inevitably be constrained by the timescale. Nonetheless, we do not believe that such constraints make pre-legislative scrutiny impossible—the opportunity given to some interested parties to consider the Criminal Evidence (Witness Anonymity) Bill being a case in point. Yet any such scrutiny has thus far tended to occur on an ad hoc basis. We therefore urge the Government to put mechanisms in place to ensure that relevant parliamentary committees and stakeholders are consulted about and given the opportunity to respond to proposed fast-track legislation ahead of Second Reading in the House in which the bill is introduced. This should be possible in all but the most extreme circumstances.


164.  Other witnesses suggested ways in which the scrutiny of fast-track bills could be improved, once they had been introduced:

i) No. 2 bill procedure

165.  The Clerk of the Parliaments told us that the No. 2 bill procedure is occasionally used to pass a bill quickly. The procedure allows both Houses to consider a bill simultaneously. The exact sequence of events varies from bill to bill, but it is usually along the following lines:

·  A bill is introduced in the Commons;

·  An identical bill (save for the addition of "No. 2" in the short title) is introduced in the Lords, either at the same time or shortly afterwards;

·  The Commons bill is read a second time, goes through its Committee stage and remaining stages and is sent to the Lords;

·  At some point before the Commons' bill leaves that House, the No. 2 bill receives a Second Reading in the Lords;

·  At the point at which the Lords receives the Commons' bill, the No. 2 bill is withdrawn, and the original bill then proceeds through its Committee and remaining stages in the Lords (p 161).

166.  The Clerk of the Parliaments also told us that "this procedure avoids the delay of up to a month which would occur if the Lords were to wait for the arrival of the Commons' bill, and if the minimum intervals between First Reading, Second Reading and Committee stage were then observed in the Lords … The procedure has rarely been used in recent times. The most recent example was in connection with the Banking Bill which was passed earlier this session. This bill had to be enacted by a particular deadline (on which the emergency legislation passed in 2008[17] would expire), but the bill was not emergency legislation—it was not passed until almost three months after its arrival in the Lords. The No. 2 bill procedure has not, in recent times, been used for emergency legislation in the generally understood sense" (p 161). The Clerk of the House of Commons also suggested that we consider "the possible use of 'No 2' bills to make the most of the total time available for Parliamentary consideration" (p 150).

167.  Dr Fox thought that "there would be a case for saying up to Second Reading, you could make the case that they would run in parallel. Once you get into the amending stages, I think that it becomes extremely difficult" (Q 52). Lord Baker thought that "it is just too complicated in getting us all together with different rules and procedure and who moves amendments and all the rest of it. I think that it is sensible to keep the sequential change from one House to another" (Q 123). Ms Sankey, Dr Metcalfe, and Mr Durno also foresaw practical difficulties (QQ 180, 289).

168.  On the other hand, Sir John Chilcot argued that such a mechanism was "not impossible" so long as the views and opinions of either House could be brought to the notice of the other (Q 52). Professor Bradley told us that though "Parliament is bicameral, I do not think this need prevent one House taking a sensible look down the corridor at what is happening in the other place and adjusting its own procedures" (Q 289).

169.  Sir Joseph Pilling told us that the Northern Ireland (Temporary Provisions) Act 1972, which suspended Stormont and introduced Home Rule for the first time, "had some extraordinary features, one of which was that it was introduced in almost identical form in both Houses simultaneously. This House had the Northern Ireland (No 2) Bill introduced, which was later withdrawn, and the bill that had been introduced into the House of Commons, which was called the Northern Ireland Bill, came to this House and was taken through all stages entirely formally because the otherwise identical bill had been already debated in this House. One of the consequences of that particular procedure was that the Government could not let the bill be amended. I had the unhappy task of writing the speaking notes for Willie Whitelaw to explain in the Commons why the amendments were terrible amendments and should be rejected, and I could not include the only real argument, which was: 'If this bill is amended I will not be able to go to Northern Ireland on Maundy Thursday with the powers that I need to take over from Brian Faulkner's government.' That was the real reason. The procedure, I hope, has not been repeated recently. I would not be telling you about it if I thought it had been repeated recently. I tell it as an illustration of the fact that it is possible to do these things very badly or not so badly. Deplorable as it may always be from a Parliamentarian's point of view, there are some ways of doing it that are less deplorable than others" (Q 212).

170.  Whilst we note that the No. 2 bill procedure has been used on occasions, most recently in the case of the Banking Bill in 2008, it appears to us that in general its drawbacks outweigh its advantages. We do not therefore recommend any increase in the use of the No. 2 bill procedure in relation to fast-track legislation.

171.  A related suggestion was that a bill could pass from the Commons to the Lords after Second Reading, where it would receive detailed scrutiny, before returning to the Commons for its remaining stages. Sir John Chilcot thought that "at first hearing, I find that very attractive, that the democratically legitimate House should endorse the principles of the fast-track legislation and then the details could at high speed be dealt with by those with time and expertise potentially and then return the fruits of their labour to the Commons presumably to go through the extremely accelerated remaining stages. It seems to me sensible" (QQ 53, 55).

172.  Dr Fox thought that "it would be radical. In practical terms, I do not think it would find much favour in the House of Commons … To take away from the elected representatives in the House of Commons the opportunity to comment on and amend legislation in Committee and Report and to get the detail of how the principles are enacted, I think I would have grave reservations about that" (Q 54).

173.  We do not recommend that a piece of fast-track legislation should pass from the Commons to the Lords after Second Reading, before returning after detailed scrutiny in the Lords has been completed.

ii) A Ministerial Statement or certification justifying the use of the fast-track procedure

174.  Professors Miers and McEldowney argued in favour of "clear statements by [a bill's] proposers of how an emergency bill meets core constitutional (or other) requirements" (p 114). Professor McEldowney suggested that such a statement could include a "full explanation" of the reasons for the expedited procedure being used, an explanation of the consequences "of accelerated passage not being granted", as well as "where it is appropriate, any steps that should be taken to minimise the future use of the accelerated passage procedure". He cited the Standing Orders of the Northern Ireland Assembly as an example of how such a procedure could work. (Q 298) The Better Government Initiative agreed that, even in cases of fast-track legislation, "there should still be a statement for the public, setting out the purposes and justification of the bill. In particular it should draw attention to, explain and justify any request for retrospective or indeterminate powers" (p 3).

175.  The Law Society argued that such a statement could be similar to the "certification of compliance with regard to the Human Rights Act", and "strengthened by the independent scrutiny of such statements … by the Speakers of the two Houses of Parliament" (p 97).

176.  Mr Durno explained that the problem with human rights certification "is that the certification is obviously open to debate. It may be the view of the minister who is introducing the legislation that there are no human rights implications, but during the course of the debate it is often the case that those points are addressed and teased out. Whilst it would be very easy for ministers to certify on the face of a fast-tracked piece of legislation that in their view it is necessary to fast-track it, there is always the possibility that that is a political judgment rather than an objective judgment. What we are looking for is to try to find an alternative to just the self-certification by a minister. The reason why we came up with the Speaker is the Speaker in the House of Lords is now no longer the Lord Chancellor, so you have got an independent individual in that role. They are there as the protectors of the rights of the two Houses, so if they looked at the legislation, looked at the arguments presented by the minister to justify the fast-tracking and they came to an independent judgment, to a certain degree they are, if you like, ticking off the self-certification by a minister" (Q 287).

177.  However, Professor Bradley thought that involvement of the Speaker would create "all sorts of difficulties … the Speaker would be under great pressure to accede to the Government's request and would get political opprobrium himself from some sections of Parliament for that reason" (Q 287).

178.  Professor Dickson told us that he was sceptical about the effectiveness of a certification procedure, because "the equivalent process under the Human Rights Act, the so-called Section 19 statements, [have not] been particularly effective in ensuring that Convention-compliant legislation is enacted, mainly because the minister is not obliged to give detailed reasons for why he or she thinks the legislation is consistent with the Act" (Q 243). Dr Metcalfe likewise argued that "for a long time, ministers would simply certify something as compatible but there would not be argumentation to follow it up … We would welcome certification but whether it is by itself a sufficient safeguard I would be very sceptical about" (Q 163. See also Q 170).

179.  On the other hand, Lord Baker could see "no harm … at all" in ministerial certification (Q 109). Sir John Chilcot "very much" favoured a certification process, because "it requires the official machine then to advise the minister concerned to go through a process and to be able to justify it in public and in Parliament" (Q 22. See also Q 25). He also thought that a certification procedure could additionally be used in relation to new clauses and amendments to a fast-track bill (Q 24).

180.  Whilst Baroness Royall thought that "it would be valuable to have more and better information and explanation from the Government as to why this specific piece of legislation should be expedited", she argued "against certification because I think in many ways that would be raising the issue to the level of compliance with the Human Rights Act. I think it is an extremely important matter whether or not a bill should be expedited but I would not raise it to the level of Human Rights compliance" (Q 390. See also Mr Bryant, QQ 393-4).

181.  A number of witnesses suggested some form of checklist which Parliament could adopt, against which it could judge whether or not the case for fast-tracking a piece of legislation had been properly made. Professor Walker advocated a set of "limiting principles" which "should act as a parliamentary check-list against which future legislation can be judged in a more systematic and rational way than at present" (pp 179-80).

182.  In his written evidence Professor Bradley listed several conditions that should apply if fast-track legislation is to be acceptable (p 92). In oral evidence he went further, arguing that "it might be of value in the House of Lords if a statement were drawn up setting out that there should be certain principles that should be followed in all but the most pressing cases" (Q 287).

183.  Professor McEldowney was supportive of the idea of a checklist against which the propriety of fast-track legislation could be judged (QQ 292-3). He and Professor Miers further advocated the use of a system of templates drawn up by the Government to provide reassurance that the fast-tracking of a bill was necessary:

    "It is the template you have to look at to ensure that the internal systems of checks and control, parliamentary draftsmen and so on, are made more public, so therefore there is a standard set of expectations when an urgency bill comes before the House that meet a certain minimum requirement of explanation and you can drill back to find out whether the explanation is realistic or not" (Q 293).

184.  We are not in favour of a certification requirement along the lines of section 19 of the Human Rights Act 1998, nor any formal role for the Speakers of the two Houses. However we agree with the Leader of the House of Lords that it would be valuable for the Government to provide more information as to why a piece of legislation should be fast-tracked. The process by which the Government makes the case for fast-tracking is at present rather ad hoc. This process needs to be formalised and strengthened.

185.  As such, we recommend that the Minister responsible for the bill should be required to make an oral statement to the House of Lords outlining the case for fast-tracking. This should take place when the bill is introduced to the House in order to allow a debate, as early as possible on the justification for fast-tracking the bill, which does not detract from the Second Reading debate. The details contained in the oral statement should also be set out in a written memorandum included in the Explanatory Notes. The parliamentary time allocated for the statement should not in any way impinge upon the time available for consideration of the bill.

186.  In the light of the evidence we have received about the potential problems and issues pertaining to the use of fast-track legislation, we recommend that the Ministerial Statement should be required to address the following principles:

(a)  Why is fast-tracking necessary?

(b)  What is the justification for fast-tracking each element of the bill?

(c)  What efforts have been made to ensure the amount of time made available for parliamentary scrutiny has been maximised?

(d)  To what extent have interested parties and outside groups been given an opportunity to influence the policy proposal?

(e)  Does the bill include a sunset clause (as well as any appropriate renewal procedure)? If not, why do the Government judge that their inclusion is not appropriate? (see para 198)

(f)  Are mechanisms for effective post-legislative scrutiny and review in place? If not, why do the Government judge that their inclusion is not appropriate? (see paras 208-9)

(g)  Has an assessment been made as to whether existing legislation is sufficient to deal with any or all of the issues in question?

(h)  Have relevant parliamentary committees been given the opportunity to scrutinise the legislation?

187.  We recommend that in its consideration of whether to allow a bill to be fast-tracked through its legislative stages, the House should bear in mind whether the Government's Ministerial Statement justifying fast-tracking has adequately addressed these principles. We will do this in the course of our scrutiny of any bill that it is proposed should be fast-tracked.

188.  This in turn raises the question of what action the House might take if it judges that any of these principles have not been met. Standing Order 47 of the House of Lords prevents more than one stage of a bill from being taken in one day, and therefore if the Government wishes to fast-track a piece of legislation and take more than one stage in a day, a motion is tabled to suspend Standing Order 47. This motion can be debated and voted on. When we asked Baroness Royall about this, she told us:

    "I think it is an issue which we as a House should look at closely. I know that this Committee is looking at ways … whereby perhaps the Government could/should be more open … to discussion about timetables on expedited legislation. To date, when the motion is put before the House it usually just goes through, which from a business manager's perspective is absolutely great, and it obviously reflects the agreement which has been made between the usual channels, but of course it is open to any Member of the House to speak to that motion, and perhaps that is something the Committee should look at" (Q 343).

189.  We remind the House that it is open to any member who is not content with the Government's justification for the fast-tracking of a bill to seek the opinion of the House when the motion to suspend Standing Order 47 is moved. If in our own scrutiny we judge that any of the principles have not been met, we will recommend that the House does not support the motion to suspend Standing Order 47.


190.  Witnesses also suggested a number of improvements to the post-legislative scrutiny process.

i) Sunset clauses and renewal procedures

191.  A number of witnesses argued in favour of both sunset clauses and renewal procedures in relation to fast-track legislation. The Hansard Society argued that "whenever possible sunset clauses should be incorporated into emergency legislation particularly in relation to legislation that impacts upon civil liberties" (p 4). They also argued that "any renewal process should be carried out through non-emergency primary legislation" in order to allow "the normal processes and procedures of good scrutiny (e.g. pre-legislative scrutiny, consultation etc)" (p 7).

192.  The Law Society recommended that "every item of emergency legislation should include a 'sunset clause'", taking the form of a renewal procedure which would normally require an affirmative resolution by Parliament (p 97). In cases where renewal was required urgently, "the Speakers of both Houses of Parliament would be required to accept the Minister's justification for emergency legislation. Once it has received Royal Assent, such emergency legislation should in turn be subjected to the appropriate post legislative scrutiny by a Parliamentary committee, and in turn any adverse criticism from that committee should be persuasive in determining whether an order should be extended or not, once it reaches the limit of its prescribed life" (p 97).

193.  Liberty (p 51) and Professor Miers also argued that sunset clauses were particularly important in cases impinging upon human rights. Professor Miers told us that "the beauty of a sunset clause is that it allows Parliament … a commitment from the minister … that a bill will be forthcoming which then will be subject to scrutiny" (Q 327). Professor Dickson (Q 243), the Law Reform Committee of the Bar Council (p 168) and the Better Government Initiative (pp 2-3) were also sympathetic towards the use of sunset clauses. The Better Government Initiative also argued in favour of "strict renewal requirements" (p 3).

194.  Professor Bradley argued that "the use of accelerated procedure should be conditional upon government willingness to include a 'sunset clause' of some kind in the legislation, to ensure that the government will provide an opportunity for Parliament to re-visit the matter, failing which the legislation will lapse at a stated date … if Parliament is asked to legislate so hurriedly, then the Government should always give an opportunity, or take on itself the burden of providing an opportunity, for the thing to be looked at again" (p 92, Q 275).

195.  However, JUSTICE argued that such provisions "are necessary but not sufficient conditions for effective post-legislative scrutiny" because "the experience of recent years raises doubts about the effectiveness of these measures" (p 45). The Hansard Society also acknowledged such limitations (p 6, Q 48).

196.  Lord Baker argued that "in the two bills with which I was concerned I do not think that would have been effective. Sunset clauses are quite draconian things, so I am not in favour of that" (Q 109). Neither was he in favour of the replacement of a piece of fast-track legislation with a new bill in a subsequent session, because "you have to have time to see whether it is effective or not" and the subsequent session "is too soon" (Q 109).

197.  The Government agreed that it was possible for "provisions for an Act or provisions in it to be renewed at regular intervals by statutory instrument" (p 129). However, "suitability for sunset clauses and renewals procedure depends … on the nature of the legislation. The fact that the passage of a bill is expedited does not, in and of itself, justify the inclusion of sunset or renewal provisions. The case for sunset or renewal provisions must be considered on its merits in relation to each bill, having regard to all the relevant circumstances" (p 129). Baroness Royall added that whilst sunset clauses are sometimes "appropriate and, indeed, invaluable .... In other cases, it can cause instability and disquiet, I would suggest, because people need the necessary certainty that is being given by the legislation and so a sunset clause could have an adverse effect" (Q 389).

198.  Whilst we acknowledge that there may be cases when the use of sunset clauses or renewal procedures is inappropriate, we do not believe that the Government's position of judging each case on its merits provides a sufficient safeguard. Where fast-track bills are used, there needs to be an additional safeguard. We therefore recommend that, in such cases, there should instead be a presumption in favour of the use of a sunset clause. By this process, a piece of legislation would expire after a certain date, unless Parliament chooses either to renew it or to replace it with a further piece of legislation subject to the normal legislative process. The Government should set out the proposed terms of the sunset clause in the Ministerial Statement. In cases where the Government judge that the use of sunset clauses or renewal procedures is inappropriate, it should be incumbent upon them to make the case for their exclusion in the Ministerial Statement.

ii) Improved post-legislative review

199.  Several witnesses cited the importance of post-legislative review in cases of fast-track legislation. The Better Government Initiative argued that "post-legislative scrutiny is all the more necessary" in cases of fast-track legislation, and that "it should perhaps be more frequent" (p 3). Professors Miers and McEldowney also affirmed its importance (pp 114-5, Q 327). Professor Bradley suggested that "relevant committees at Westminster may wish to monitor the operation of the new law" (p 92). The Hansard Society argued that "emergency legislation should automatically be subject to post-legislative review" (pp 4, 6-7).

200.  Lord Baker told us that in the case of complex legislation, "there should be a review reasonably quickly afterwards to see whether the objectives of the legislation are actually being met because very often they are not … I would have a clause that the effectiveness of this legislation should be reported to Parliament after two years and after another two years … I would favour a clause in the Bill saying something like that if a bill is fast-tracked, there should be a proper report to Parliament … as to the effectiveness of it and, if it seemed to be effective, then it would become part and parcel of the political framework of our country" (QQ 74, 86).

201.  JUSTICE argued that "post-legislative scrutiny including independent statutory review within six months should be a mandatory requirement for all emergency legislation". Yet "the experience of recent years" raised doubts as to the effectiveness of statutory review (pp 44-5). Ms Sankey expressed similar concerns, arguing that "the fact that [the independent reviewer of anti-terrorism legislation] is one individual who is fulfilling the function I think is particularly unhelpful". She thought that the model of the Privy Councillor committee which had scrutinised the Anti-Terrorism, Crime and Security Act 2001 was "far preferable" (Q 169).

202.  On the other hand, Sir John Chilcot thought that the independent reviewer of anti-terrorism legislation was "a trusted external auditor", and "in principle it seems to me that the notion of audit leading to, as it were, a scrutiny session has a great deal to commend it" (QQ 46-8). The Government also cited such independent reviews as a potential mechanism for ongoing scrutiny (p 129). Professor Dickson made the case for automatic review after six or 12 months, accompanied by an independent review "concerning both the operation of the emergency legislation and whether its necessity has indeed been demonstrated during the intervening period. If it were possible … for select committees or other committees of Parliament to conduct comparable reviews prior to the renewal debates, I think that would be very appropriate as well" (Q 243).

203.  Several other witnesses also highlighted the value of parliamentary post-legislative review. The Hansard Society suggested that "an Emergency Legislation Review Committee should be established, composed of members of both Houses, whose responsibility would be to review emergency legislation at an agreed date after Royal Assent, to determine whether or not the legislation had sufficient constitutional and policy implications to justify being referred back to Parliament for further consideration". They also argued in favour of a requirement on the Government to report to the Committee, "setting out its view on issues such as whether the legislation had met the Government's aims, whether it had unintended consequences that were not foreseen at the time of its passage through Parliament and what lessons had been learned" (pp 4, 6-7. See also Q 25).

204.  Similarly, JUSTICE proposed that "for every piece of emergency legislation passed", a joint parliamentary committee should review "all aspects of the Act, and required to produce its first report within six months of enactment. This should be in addition to, not in place of, the appointment of statutory reviewers" (p 45). In his oral evidence, Dr Metcalfe added that a House of Lords Committee may be an alternative way forward, and acknowledged that "there has already been a proposal for a Standing Committee on post-legislative scrutiny, so maybe you could roll those functions up into that" (QQ 172-3, 184).

205.  The latter statement was a reference to a recommendation by the Law Commission in its 2006 report on post-legislative scrutiny. The Government's proposals, published in March 2008, recommended that "3 years after a law has been passed, it is reviewed by the relevant Government Department and then by Parliament, to see how the law has worked out in practice". They did not support the proposal for a new Joint Committee on post-legislative scrutiny, recommending instead that parliamentary review should be undertaken by Commons departmental select committees in the first instance, but that review might also be undertaken by a Lords Committee or a Joint Committee (though not ordinarily where the Commons Committee had decided to undertake scrutiny).[18]

206.  On the question of timing, the Government told us that "there may be a case for making legislation which has been passed with unusual expedition subject to earlier post-legislative scrutiny under the new arrangements … This might involve, for example, an undertaking to publish post-legislative scrutiny memoranda after one or two years" (p 129). As we have seen, Lord Baker could see no reason why post-legislative scrutiny should not take place within two years (QQ 86, 118), whilst Dr Metcalfe and Professor Dickson thought that it should ideally take place within a year. (QQ 173-4, 243)

207.  Baroness Royall confirmed that the feasibility of earlier post-legislative review of fast-track legislation was an issue "we should consider as a government. Just because a piece of legislation has been expedited it does not mean to say that two years would be an adequate time to see the bill in operation, and so perhaps two years would be too short a timescale, but I think perhaps we should give some consideration to it" (QQ 391-2). Mr Bryant did "not think it would apply in every case. For instance, with the Northern Ireland Act we have just passed, we will know by the summer whether it was necessary to have done it because they will have either proceeded or they will not have proceeded. Indeed, we are very much trying to push forward as a government and as business managers with the post-legislative scrutiny process at the moment, and government departments are keen to get stuck into it but their keenness varies" (Q 391).

208.  We believe that post-legislative scrutiny has an important role to play in relation to all legislation, and take note of the Government's 2008 proposals for post-legislative scrutiny. In relation to fast-track legislation, post-legislative review is vital, and we believe that additional safeguards need to be introduced. We therefore recommend that, in co-ordination with parliamentary committees, the Government should make the prompt review of fast-track legislation a priority.

209.  Whilst we acknowledge that it may not always be appropriate to review a piece of legislation quickly, we believe that there should be a presumption in favour of the early review of fast-track legislation. We therefore recommend that any legislation subject to a fast-track parliamentary passage should be subject to post-legislative review, ideally within one year, and at most within two years. The Government should set out the arrangements for review and the case for either a one- or two-year review period in the Ministerial Statement. In cases where the Government judge that such an early review would be inappropriate, it should be incumbent upon the Government to make their case in the Ministerial Statement.

17   See paras 93-6. Back

18   Office of the Leader of the House of Commons, Post-legislative Scrutiny-The Government's Approach, Cm 7320, March 2008. Back

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