Chapter 6: potential improvements to the
fast-track scrutiny process
Introduction
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
OVERARCHING REFORMS
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.
IMPROVEMENTS TO THE PRE-LEGISLATIVE
SCRUTINY PROCESS
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.
IMPROVEMENTS TO THE LEGISLATIVE
SCRUTINY PROCESS
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.
D) IMPROVEMENTS TO THE POST-LEGISLATIVE
SCRUTINY PROCESS
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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