APPENDIX 6: FAST-TRACK LEGISLATION—THE
EXPERIENCE OF OTHER LEGISLATIVE BODIES
1. Do you have a definition of "emergency legislation"?
If so, what is this?
Canada: No, neither the
Standing Orders of the House of Commons, nor the Rules of the
Senate contain a definition of emergency legislation.
Australia (Senate): No.
There are no special procedures for emergency legislation in the
Australian Parliament. If the executive government considers that
legislation is urgent, it uses the same procedures available for
any legislation to expedite it.
Australia (House of Representatives):
There is no technical definition of emergency legislation in either
the standing orders or practice of the House. Legislation is sometimes
referred to as urgent or as necessary because of an emergency
of some kind, and action is taken to limit the time available
for its consideration by the House - see below.
New Zealand: There is
no statutory definition of "emergency legislation" in
New Zealand.
Scotland: An emergency
bill can be any Executive bill which, subject to the Parliament's
agreement, undergoes a faster legislative process. For example,
all stages of the bill are considered by the whole Parliament
rather than by a specific committee, and the usual requirements
for intervals between stages do not apply. Emergency bills are
regulated by Standing Orders rule 9.21.
Wales:
Emergency primary legislation:
We have a standing order which covers
'Government proposed Emergency Measures' ('Measures' being our
equivalent of Bills) [SO23.107 - 23.116]. The SO does not provide
a definition of an 'emergency Measure', stating instead that:
"If it appears to a member of the government that an Emergency
Measure is required, he or she may by motion propose that a government
proposed Measure, to be introduced in the Assembly, be treated
as a government proposed Emergency Measure."
Northern Ireland: Neither
the Standing Orders nor the Conventions of the Northern Ireland
Assembly refer to emergency legislation. However, Standing Order
42 (attached as Annex 1 for reference) provides for "accelerated
passage" of a Bill which excludes Committee Stage and enables
the Bill to pass its required stages in the Assembly in not less
than ten days. It is recognised that situations may arise where
the Assembly will wish to pass legislation more quickly than is
currently provided for within Standing Orders.
2. How do you handle emergency (a) primary and (b)
secondary legislation? In particular: how is it agreed that it
is emergency legislation? What parliamentary processes does it
go through?
Canada: For purposes of
simplification, it is possible to establish two categories of
responses to emergency situations in the Canadian parliamentary
context. On the one hand, perhaps no more than once or twice per
parliamentary session, an issue arises to which a legislative
response is deemed to be required with relative urgency. In these
instances, discussion would then occur between party leaders prior
to a sitting. When the House convenes, during the business of
the house, a Minister of the government will rise and state to
the Speaker that he or she will find that unanimous consent exists
to depart from the standard rules and practices of the House,
and that agreement exists to "fast-track" a piece of
legislation to respond to the urgent issue.
A recent example of this would be Bill C-38, An
Act to permit the resumption and continuation of the operation
of the National Research Universal Reactor at Chalk River,
which was introduced on 11 December 2007 in the House of Commons
and passed through all legislative stages in the same sitting.
The Senate followed suit, introducing the bill and passing it
through all legislative stages on 12 December 2007. It was deemed
at the time that the shutdown of the nuclear reactor at Chalk
River required an urgent legislative response because it was said
to have caused a critical shortage of medical isotopes, which
led to delays and cancellations of medical procedures throughout
Canada.
The second type of response to an emergency situation
would be for a Member to rise in the House and request of the
Speaker an emergency debate (S.O. 52). It is left to the Speaker's
discretion whether the situation in question warrants an emergency
debate or not. Normally, though, emergency debates do not produce
legislation, but instead the House resolves to take some sort
of non-binding action.
Of note: in the Canadian parliamentary context, no
such distinction exists between primary and secondary legislation.
Australia (Senate): Primary
legislation may be formally declared to be urgent by majority
vote in each House under provisions no doubt familiar to you and
known as the "guillotine". Basically this involves a
minister moving a series of motions to limit the time for debate
on legislation. This is easy for a government in the House of
Representatives where the government has a party majority and
party discipline is tight, but in the Senate, where no party normally
holds a majority, the government has to persuade a majority of
senators to treat a bill as urgent and limit the time for debate.
There are no provisions for secondary legislation
to be treated as urgent. Basically, secondary legislation here
is subject to disallowance by either House. Where a government
faces the prospect of disallowance in the Senate of a vital piece
of secondary legislation, it may seek the agreement of the Senate
to deal expeditiously with any disallowance motion.
Australia (House of Representatives):
Primary legislation
The standing orders allow for a Minister to declare
a bill urgent. When this happens a question is put immediately
'That the bill be considered urgent'. If this question is agreed
to by the House, a motion is moved to allot time for the various
stages - this is known as applying a guillotine. If the motion
to allot time is agreed to, at the set time for each stage the
Chair interrupts the debate and puts the relevant question or
questions - standing order 82, and see House of Representatives
Practice, 5th edn, pp 384-9.
If it is desired to limit debate on more than one
bill at a time it is necessary to suspend standing orders - the
provisions of standing order 82 are not sufficient, as they are
only applicable in respect of one bill at a time.
There have been many cases over the years of standing
orders being suspended and detailed motions being moved and agreed
to providing for various restrictions on the ordinary processes.
The most recent example of this approach occurred
in the last sitting fortnight 3-12 February. Six bills dealing
with financial and related issues were introduced on 4 February.
Standing orders were suspended to allow debate to continue immediately
after the last bill in the package had been introduced.
The motion imposed a cognate (joint) debate on the
whole package and provided that after that debate had concluded
the questions necessary for passage of the first bill would be
put, and when they were resolved those necessary for each other
bill were to be put without further debate. The debate extended
from 10am on Wednesday 4 February until 4.45am on 5 February,
with the only break being for Question Time at 2pm. In this case
the suspension of standing orders did not impose a time limit,
although a 'gag' motion was moved and agreed to at 4.45am, the
final bill being passed by 5.34. It is more common for such motions
to also contain provisions which limit the time available for
debate.
There is no specific procedure or process to determine
what legislation will be dealt with in an expedited manner. Ultimately
by force of numbers a government can impose restrictions on normal
processes, and while there are many examples of this, in other
cases, such as in the recent consideration of financial measures,
there has been a degree of acceptance by non-government members
that some curtailment was warranted.
Secondary legislation
Primary legislation contains provisions for the making
of a wide range of secondary or delegated legislation - regulations,
by-laws, determinations, ordinances etc. The processes involved
in the making of such delegated legislation occur within the executive
branch, and I am not able to comment on them. The ordinary provisions
for parliamentary disallowance do not distinguish between those
instruments made as a matter of urgency and others.
Some legislation, both primary and secondary, has
'sunset' provisions inserted, but this is not confined to matters
dealt with under conditions of urgency in a procedural sense.
The Joint Committee on Intelligence and Security has responsibilities
in relation to the assessment and continuation of legislative
provisions concerning terrorism.
New Zealand:
Primary Legislation
The parliamentary process
Standing Orders 54 to 58 of the Standing Orders
of the House of Representatives (2008) set out the process
of according "urgency" and "extraordinary urgency"
to certain business.
Standing Order 54 states:
54 Urgency
(1) A Minister may move, without notice, a motion
to accord urgency to certain business.
(2) A motion for urgency may not be moved until
after the completion of general business.
(3) There is no amendment or debate on the question,
but the Minister must, on moving the motion, inform the House
with some particularity why the motion is being moved.
Standing Order 56 states:
56 Extraordinary urgency
(1) An urgency motion may be moved as a motion
for extraordinary urgency or, after the House has accorded urgency,
a Minister may move, without notice, a motion to accord extraordinary
urgency to some or all of the business being considered under
urgency.
(2) There is no amendment or debate on the question,
but the Minister must, on moving the motion, inform the House
of the nature of the business and the circumstances that warrant
the claim for extraordinary urgency.
(3) Extraordinary urgency may be claimed only
if the Speaker agrees that the business to be taken justifies
it.
David McGee writes in Parliamentary Practice in
New Zealand (at page 154):[24]
Urgency enables the business for which it has been
accorded (usually a bill or bills) to be completed before the
House rises on that day. The sitting is accordingly extended for
that purpose beyond the time for the normal adjournment of the
House. Urgency may be taken for the single stage of a bill, for
one or more stages of one bill, for one or more stages of different
bills, or for a combination of these.
Of extraordinary urgency, McGee writes (at page 155):
Extraordinary urgency is designed to facilitate the
passing of a particularly urgent piece of legislation, such as
Budget legislation or legislation to deal with the collapse of
a commercial or financial organisation, or a matter involving
state security.
For a detailed description of the process of urgency
and extraordinary urgency, see Parliamentary Practice in New
Zealand[25].
The Standing Orders of the House of Representatives
(2008) is available at:
http://www.parliament.nz/en-NZ/PB/Reference/StOrders/1/b/6/00HOHPBReferenceStOrders2-Standing-Orders-of-the-House-of-Representatives.htm
Agreement that it is emergency legislation: urgency
Please see Standing Order 54 (3) above.
In Parliamentary Practice in New Zealand,
David McGee writes:[26]
Reasons for urgency
An urgency motion is not properly moved unless a
reason for it of some description is given by the Minister. The
motion will be disallowed if a reason is not forthcoming before
the question for urgency is determined. … The reasons which
the Minister gives are not required to be very detailed but they
do require some particularity. Merely to say that progress needs
to be made is not sufficient, and any bills to be introduced must
be identified. But, reasons having been given, the Speaker is
not the judge of their adequacy (unlike for extraordinary urgency);
that is solely a matter for the House.
(Footnotes to this extract are available in the scanned
pages attached to this document. It appears that footnote 73 has
been left off. It is a reference to Hansard and reads:
1998, Vol 569, p 10121.)
A recent example of a motion for urgency (with a
discussion of reasons for the motion) and of the vote taken on
the question that urgency be accorded is available at: (16 December
2008) NZPD: http://www.parliament.nz/en-NZ/PB/Debates/Debates/a/c/4/49HansD_20081216_00000795-Urgency.htm
Agreement that it is emergency legislation: extraordinary
urgency
Please see Standing Order 56(2) and (3) above.
In Parliamentary Practice in New Zealand,
David McGee writes: [27]
Extraordinary urgency
As with ordinary urgency, there is no amendment or
debate on a motion for extraordinary urgency, but the Minister
moving it must inform the House of the nature of the business
or the circumstances which warrant extraordinary urgency. In this
case, unlike for ordinary urgency, the Speaker has to make a judgment
as to the justification for the Government asking for extraordinary
urgency. It would not be justified, for instance, if the legislation
for which it was claimed was not designed to come into force immediately
on enactment. Extraordinary urgency is particularly designed for
use in connection with legislation for a tax change with immediate
effect.
An explanation of urgency, published on Parliament's
website on 17 February 2009, is available at: http://www.parliament.nz/en-NZ/8/f/a/00NZPHomeNews170220091-What-is-urgency.htm
Secondary legislation: regulations[28]
In Parliamentary Practice in New Zealand,
David McGee writes:[29]
Generally … neither Parliament nor the House
has any part to play in the actual making of regulations. Parliament
has played its part by passing the legislation conferring the
power to make the regulations. The exercise of that power is in
the hands of another authority.
Scrutiny of regulations generally
In New Zealand, the Regulations Review Committee:[30]
· scrutinises all regulations
· considers draft regulations referred by
Ministers of the Crown and reports back to them
· examines regulation-making powers in bills
before other committees
· investigates complaints about the operation
of regulations
· conducts inquiries into any matters related
to regulations.
Under the Regulations (Disallowance) Act 1989, the
House has "a general power to disallow any regulations or
any provisions of regulations, and to amend or to revoke and substitute
regulations." [31]
Scrutiny of regulations made under the authority
of statutes that provide for action to be taken in an emergency
A number of statutes provide for action to be taken
in times of emergency such as civil defence emergencies.
· The Biosecurity Act 1993 provides that,
while a declaration of biosecurity emergency is in force, regulations
may be made by Order in Council for dealing with the emergency
(see section 150(1)). Under section 150(5) biosecurity regulations
must be laid before the House of Representatives not later than
the second sitting day after they are made. They are deemed to
have been revoked unless confirmed by an Act of Parliament (see
section 151).
The entire Biosecurity Act 1993 is available at:
http://www.legislation.govt.nz/act/public/1993/0095/latest/contents.html
· The Epidemic Preparedness Act 2006 provides
for the making of "immediate modification orders" (see
sections 14 and 15). Every immediate modification order must be
presented to the House of Representatives as soon as is practicable
after it is made (see section 16). Immediate modification orders
may also be disallowed under section 17 of the Act.
The entire Epidemic Preparedness Act 2006 is available
at: .http://www.legislation.govt.nz/act/public/2006/0085/latest/contents.html.
Scotland:
Primary legislation
Emergency bills have been used to amend the law in
response to court judgements which have exposed loopholes or problems
of interpretation in existing legislation. Such Bills must first
be introduced as Executive Bills and are then converted to Emergency
Bills by the Parliament, on a motion laid by a Minister (or junior
Minister).
In session 2 (2003-2007) the Procedures Committee,
in line with a paper prepared by the Legislation Team Clerk, agreed
to procedural changes to the rule on emergency bills (Procedures
Committee 2004). The new version of the Rule clarified the default
timetable that applies once it has been decided to treat a Bill
as an Emergency Bill, ensuring that the normal minimum intervals
between Stages do not apply and making clear that the Parliament
retains the right, at Stage 3, to adjourn the remaining Stage
3 proceedings or refer part of the Bill back to a committee. It
removed any obligation on a lead committee at Stage 1, or on the
Subordinate Legislation Committee at that Stage or after Stage
2, to consider an Emergency Bill, while preserving their right
to do so in appropriate circumstances. The Presiding Officer was
given an ability to set lodging deadlines for amendments appropriate
to the timescale adopted for the Bill.
The Parliament accepted the proposed changes to Standing
Orders in February 2004 (SP OR 12 February 2004).
Secondary legislation
There are no specific emergency procedures laid down
for secondary legislation in the Standing Orders. However, under
rules 10.1.3 and 10.7 of Standing Orders, a statutory instrument
can be taken by the whole Parliament, rather than by a lead committee.
In session 2 the Subordinate Legislation Committee
carried out an inquiry into the Regulatory Framework in Scotland
(Subordinate Legislation Committee 2007). The Committee identified
two problems with the existing procedure for handling emergency
instruments. Firstly, an emergency order, such as a food order
is usually made and brought into force before it is laid. This
breaches the rule which requires an SSI (Scottish Statutory Instrument)
to be laid before it is due to come into force and, in the case
of negative instruments, this breaches the rule that an instrument
should be laid for at least 21 days before it comes into force.
The second problem identified relates to emergency
orders that are subject to the type of affirmative procedure which
requires them to be approved by the Parliament before the expiry
of a specified period, usually 28 days, for them to continue in
force. The Committee noted that there is nothing to prevent successive
orders being made after the original order has expired. This could
allow such orders to continue to be in force long after the 28
day period, without any further approval from the Parliament.
To deal with these problems the Committee recommended
that:
There should be a separate procedure for emergency
and urgent instruments where they could be made and, if necessary,
brought into force before they are laid, but would be subject
to being annulled within 40 days.
Emergency instruments should not be subject to the
28 day rule or to any rule which requires them to be laid before
being brought into force but, where the instrument is brought
into force before being laid or within the 28 day period, the
need for this should be explained in the accompanying Executive
Note.
An emergency instrument should be defined for this
purpose as an instrument which -
· in the case of future Acts, is identified
in the parent Act which authorises the making of that instrument
as being an emergency instrument;
· in the case of past Acts, is subject in
the parent Act to the draft affirmative procedure or the negative
procedure and that Act has been amended to identify the instrument
as an emergency instrument.
The Scottish Ministers should be given a power, by
order made by SSI, to identify and make the appropriate amendments
to Acts prior to 1946 (i.e. prior to the Statutory Instruments
Act 1946) to identify instruments as emergency instruments.
The Standing Orders should provide that -
· where the Executive adopts the exceptional
procedure, it should be required to explain to the Parliament
why it has done so;
· the Subordinate Legislation Committee
(SLC) should be charged with examining the reasons given by the
Executive; and
· the SLC should be empowered to report
to the Parliament any case where it considers that it was unnecessary
to adopt that procedure.
In session 3, (May 2007-) as the Parliament did not
have time to consider the session 2 Committee's recommendations
before the dissolution of Parliament in April 2007 the session
3 Committee considered the report and make new recommendations
to Parliament.
In their report (Subordinate Legislation Committee
2008a) the session 3 Committee recommended introducing a new procedure,
the Statutory Instrument Procedure (SSIP). For the Committee one
attraction of SSIP was that it would provide a formal procedure
for emergency or urgent instruments. So in Recommendation 9 of
their report the Committee recommended that -
· Class 3 procedure be retained as an option
for dealing with certain sorts of emergency procedure; and
· a specific procedure should be introduced
for emergency negative instruments, including the elements outlined
in this report; and this should only extend to emergency instruments
as defined and not to urgent instruments which should continue
to dealt with in the same way as breaches of the 21 day rule are
at present.
A class 3 procedure is an affirmative procedure where
the instrument is laid before Parliament after making and comes
into force immediately but cannot remain in force after a specified
period (usually 28 days from the date it was made) unless approved
by resolution of the Parliament within that period. This procedure
has been used in the past for emergency food orders. It may be
described as for use in "expected emergencies" i.e.
the parent Act anticipates that emergency action may be needed
and accordingly makes procedural provision for it. The only other
means of making an affirmative instrument quickly is to accelerate
its progress through Parliament by taking the motion to approve
in the Chamber at the earliest possible date after laying. Other
than class 3, affirmative instruments cannot be brought into force
immediately on laying.
The Scottish Government responded to the Committee
report on 17 June 2008 (Subordinate Legislation Committee 2008b),
saying that they wanted to give further consideration to Recommendation
9, but that they intended introducing a bill to give effect to
the proposed improvements.
The Committee discussed a number of follow-up issues
at their away day on 16 September and then received a paper from
the Committee Clerk, with suggested responses to the Government,
which they discussed on 30 September 2008 (Subordinate Legislation
Committee 2008c).
Following this meeting the Committee Convener wrote
to the Minister for Parliamentary Business (Subordinate Legislation
Committee 2008d)
to say that Committee agreed with the Minister on
how to proceed and recommended that the option of strengthening
the scrutiny of compliance with the "21 day rule" be
pursued, rather than introducing a new category of emergency procedure.
The Minister responded on the 23 October 2008 (Subordinate
Legislation Committee 2008e) to confirm the intention to use the
proposed Legislative Reform Bill to take forward the Committee's
recommendation on emergency procedures for secondary legislation.
Wales:
Emergency primary legislation:
The standing order does provide for:
· an emergency Measure to be accompanied
by a statement on legislative competence from the Member in charge
of the legislation;
· the Member in charge to propose a timetable
for consideration of Stages 1-4 of the emergency Measure (for
info - stage 1 = consideration of general principles of proposed
Measure; stage 2 = detailed consideration by a committee [amendments];
stage 3 = detailed consideration in plenary [amendments]; stage
4 = final stage to formally agree the proposed Measure);
· a motion to proposed that all stages be
taken on a single working day;
· stage 2 must be taken by a committee of
the whole Assembly.
Emergency subordinate legislation:
According to section 11A(4) of the Statutory Instruments Act 1946
(as inserted by Schedule 10 paragraph 3 of the Government of Wales
Act 2006), if an instrument is not laid before the National Assembly
at least 21 days before it comes into operation, notification
must be sent to the Presiding Officer when it is laid to draw
the Assembly's attention to the fact that this 21 day rule has
been breached and explaining why this happened. All Assembly Members
are notified of the breach of the rule.
There is no reference to the 21 day rule in that
form in Standing Orders, other than SO 24.6 which states that
SIs subject to the affirmative procedure may not be considered
in plenary until 20 days have elapsed since it was laid.
There is therefore no process for challenging the
breach of the 21 day, other than the usual opportunity to table
a motion to annul (which would mean undoing a law retrospectively)
or rejecting it at the vote. The emergency legislation that's
been tabled to date in the Third Assembly has always been subject
to negative procedure, so we haven't dealt with an emergency vote
on an affirmative procedure SI.
The notification of the breach of the 21 day rule
is also copied to the Chair of the Subordinate Legislation Committee.
There are no special provisions under Standing Orders on how these
SIs should be considered by the Committee, therefore they are
considered by the Subordinate Legislation Committee in the same
way as any other SI. The Committee reports on all legislation
which is not made bilingually, amongst other grounds (Standing
Order 15.2). This type of "emergency" legislation is
the most likely to be a justifiable exception to the principle
that Assembly legislation is made bilingually (section 98(5) of
the Government of Wales Act).
Northern Ireland: Under
Standing Order 42(3), the Member in charge of the Bill is required,
before introduction of the Bill in the Assembly to explain to
the appropriate Committee:
(a) the reason or reasons for accelerated passage;
(b) the consequences of accelerated passage not being
granted; and, if appropriate,
(c) any steps he or she has taken to minimise the
future use of the accelerated passage procedure.
Before Second Stage, the Member is then required
to move a motion in plenary session seeking the Assembly's approval
for accelerated passage. Such a motion requires 'cross-community
support', a type of weighted majority vote within Assembly, designed
to ensure both unionist and nationalist support for important
decisions.
The effect of accelerated passage is to exclude Committee
Stage, remove the requirement that there be five working days
between the main stages of the Bill and enable a Bill to complete
its Assembly stages in not less than 10 working days. In addition,
the full text of the Bill must be submitted to the Speaker 7 days
before introduction. Further time is required, of course, to seek
Royal Assent.
3. Are there any constitutional safeguards in place—for
example is emergency legislation subject to scrutiny by a special
parliamentary or other committee? Does emergency legislation lapse
after a specified time, if not renewed?
Canada: No differentiation
exists between legislation that is passed over the course of several
months, and legislation that responds to an emergency situation
and is consequently "fast-tracked" through all-party
consent in the House and Senate. As such, review provisions for
legislation passed in response to an emergency situation would
have to be included in the text of the bill.
Australia (Senate): The
only constitutional safeguard is the lack of a government party
majority in the Senate, which means that, even where legislation
is declared by the government to be urgent, it is likely to be
subjected to more intensive scrutiny than in the House of Representatives,
particularly by committee hearings. Occasionally the government
has been able to persuade the Senate that legislation is really
urgent and that the normal Senate scrutiny process should be attenuated.
Australia (House of Representatives):
No special constitutional safeguards apply to bills considered
through expedited procedures, but see comments under 2 above in
respect of sunset provisions. Whether such provisions are included
in bills is ultimately a matter of policy and political negotiation,
rather than a matter of procedure.
New Zealand: There is
no select committee established specifically to scrutinise bills
that have been accorded urgency.
In the ordinary course of legislative events, a bill
is referred to a select committee when it has received its first
reading. Bills that have received their first reading under urgency
can be referred to select committee for consideration. For instance,
the Sentencing and Parole Reform Bill was introduced and received
its first reading under urgency on 18 February 2009. It was referred
to the Law and Order Committee which is due to report back to
the House in August 2009.
A fact sheet entitled "Parliament Brief: The
legislative process" is available at:
http://www.parliament.nz/en-NZ/PubRes/About/FactSheets/6/1/5/00HOOOCPubResAboutFactSheetsProcess1-Parliament-Brief-The-legislative.htm
Scotland: There are no
such safeguards in place, but, as stated above, Stage 2 of an
emergency bill is taken by a Committee of the Whole Parliament.
The first Act of the Scottish Parliament which was
subject to emergency bill procedures was the Mental Health (Public
Safety and Appeals (Scotland) Act 199 asp 1. The Bill was introduced
to close a gap in the Mental Health (Scotland) Act 1984 identified
by a Sheriff court decision in Noel Ruddle v The Secretary
of State for Scotland on 2 August 1999. The 1999 Act was later
repealed by the Mental Health (Care and Treatment) (Scotland)
Act 2003 asp 13.
The second Act subject to emergency bill procedures
was the Erskine Bridge Tolls Act 2001 asp 12. The Bill was introduced
to redress an administrative oversight, which meant that the Scottish
Executive had failed to renew an order extending the Executive's
power under the Erskine Bridge Tolls Act 1968 to toll vehicles
crossing the Bridge. The 2001 Act was later repealed by the Abolition
of Bridge Tolls (Scotland) Act 2008.
Northern Ireland: As referred
to above, there are requirements on the sponsoring Member to explain
the case for accelerated passage to the relevant statutory committee
and to the Assembly in plenary and the motion to the Assembly
seeking accelerated passage must be passed by 'cross-community
consent', a safeguard involving a weighted majority vote. There
are, however, no special votes in relation to the bill itself
and no procedure by which legislation lapses.
4. How many pieces of emergency legislation have
been agreed to in the past ten years (or other convenient timescale)?
Canada: A rough approximation
might be that a half-dozen bills have been fast-tracked in response
to an emergency in the past ten years. It may be worth noting
that prior to the break for winter holidays and summer recess,
a not-insignificant number of bills are fast-tracked in the same
manner as bills introduced in response to an emergency situation.
Australia (Senate): Not
really applicable. I could give you figures for the use of the
guillotine in each House, but that would not indicate that the
legislation involved fell into the category of emergency legislation;
time limits are often put in place simply because time is running
out at the end of sittings, not because the legislation is really
urgent.
Australia (House of Representatives):
Between 1998 and 2008, 27 bills were subject to declarations of
urgency in the House. We do not keep records of bills subject
to other forms of curtailment but I am confident in saying that
it would be a considerably larger number than the number of bills
subject to a traditional guillotine.
New Zealand:
47th Parliament August 2002-August
2005
Extraordinary Urgency.
One bill, the Customs and Excise (Alcoholic Beverages) Amendment
Bill, was introduced and passed under extraordinary urgency.
Urgency.
There were fifteen urgency motions during the 47th
Parliament and over 100 bills were advanced. They were either
introduced into Parliament, or a stage was debated under urgency
or it was passed. The urgency motion also applied to "any
bills into which those bills may be divided."
The following 68 bills were "passed through
their remaining stages" under urgency:
Land Transport (Street and Illegal Drag Racing)
Amendment Bill
Motor Vehicle Sales Bill
Maori Purposes Bill (No. 2)
Hop Industry Restructuring Bill
Social Workers Registration Bill
Counter-Terrorism Bill
Copyright (Parallel Importation of Films and Onus
of Proof) Amendment Bill
Retirement Villages Bill
Criminal Investigations (Bodily Samples) Amendment
Bill
Wine Bill
Criminal Justice Amendment Bill (No. 7)
Intellectual Disability (Compulsory Care) Bill
New Zealand Horticulture Export Authority Amendment
Bill (No.2)
Immigration Amendment Bill (No.2)
Fair Trading Amendment Bill (No.3)
Consumer Protection (definitions of Goods and
Services) Bill
Importers and Exporters (restrictions) Amendment
Bill
Hazardous Substances and New Organisms (Stockholm
Convention) Amendment Bill
Bio security Amendment Bill
Crimes Amendment Bill (No. 6)
Health Practitioners Competence Assurance Bill
Wool Industry Restructuring Bill
Electoral (Vacancies) Amendment Bill
Education (disestablishment of Early Childhood
Development Board) Amendment Bill
State Sector Amendment Bill (No.3)
Maritime Security Bill
Crimes and Misconduct (Overseas Operations) Bill
Radio New Zealand Amendment Bill
Telecommunications (Interception Capability) Bill
New Zealand Symphony Orchestra Bill
Sale of Liquor Amendment Bill (No.2)
Future Directions (Working for Families) Bill
Local Government (Auckland) Amendment Bill
Meat Board Restructuring Bill
Visiting Forces Bill
Local Government Law Reform (No.3)
Parole (Extended Supervision) and Sentencing Amendment
Bill
Mercenary Activities (Prohibition) Bill
Secondhand Dealers and Pawnbrokers Bill
Foreshore and Seabed Bill
Acquaculture Reform Bill
Subordinate Legislation (Conformation and Validation)
Bill (No.3)
Taxation (Annual Rates, Venture Capital and Miscellaneous
Provisions) Bill
Public Finance (State Sector Management) Bill
Lawyers and Conveyancers Bill
Legislation (Incorporation by Reference) Bill
Gambling Amendment Bill
Fiordland Marine Management Bill
Railways Bill
Architects Bill
Charities Bill
Public Records Bill
Crimes Amendment Bill (No. 2)
New Zealand Superannuation Amendment Bill
Identity (citizenship and Travel Documents) Bill
Injury Prevention, Rehabilitation, and Compensation
Amendment Bill (No. 3)
Courts and Criminal Matters Bill
Prisoners' and Victims' Claims Bill
Land Transport Amendment Bill
Tariff (New Zealand - Thailand Closer Economic
Partnership) Bill
Taxation (Base Maintenance and Miscellaneous Provisions)
Bill
Misuse of Drugs Amendment Bill (No. 3)
Overseas Investment Bill
Terrorism Suppression Amendment Bill (No. 2)
Courts and Criminal matters Bill
Appropriation (2005/06) Estimates Bill
Imprest Supply (Second for 2005/06)
Resource Management and Electricity Legislation
Amendment Bill
48th Parliament November 2005-September
2008
Extraordinary urgency.
No bills advanced under extraordinary urgency in this Parliament.
Urgency.
There were ten urgency motions during the 48th Parliament
and over 104 bills advanced. They were either introduced into
Parliament, or a stage was debated under urgency or it was passed.
The urgency motion also applied to "any bills into which
those bills may be divided."
The following 49 bills were "passed through
their remaining stages" under urgency:
Taxation (Annual Rates and Urgent Measures) Bill
Hazardous Substances and New Organisms (Approvals
and Enforcement) Amendment Bill
Biosecurity (Status of Specific Ports) Amendment
Bill
Subordinate Legislation (Confirmation and Validation)
Bill
Veterinarians Bill
Land Transport Amendment Bill
Appropriation (Parliamentary Expenditure Validation)
Bill
Taxation (Annual Rates, Savings Investment, and
Miscellaneous Provisions) Bill
Telecommunications Amendment Bill
Weathertight Homes Resolution Services Amendment
Bill
Epidemic preparedness Bill
Health Amendment Bill
Immigration Amendment Bill (No.2)
Parole Amendment Bill
Sentencing Amendment Bill (No.2)
Social Security Amendment Bill (No.2)
Summary proceedings Amendment Bill (No.2)
Taxation (Kiwisaver and Company Tax Rate Amendments)
Bill
Education (Tertiary Reforms) Amendment Bill
Taxation (Annual Rates, Business Taxation, Kiwisaver,
and Remedial Matters) Bill
Dairy Industry Restructuring Amendment Bill (No.2)
Taxation (Personal Tax Cuts, Annual Rates, and
Remedial Matters) Bill
Climate Change Response (Emissions Trading) Amendment
Bill
Electricity (Renewable Preference) Amendment Bill
Public Transport Management Bill
Corrections (Mothers with Babies) Amendment Bill
Employment Relations (Breaks and Infant Feeding)
Amendment Bill
Reserve Bank of New Zealand Amendment Bill (No.3)
Biofuel Bill
Commerce Amendment Bill
Disability (United Nations Convention on Rights
of Persons with Disabilities) Bill
Real estate Agents Bill
Affordable Housing: Enabling Territorial Authorities
Bill
Customs and Excise Amendment Bill (No.3)
Companies (Minority Buy-out Rights) Amendment
Bill
Electricity Industry Reform Amendment Bill
Family Courts Matters Bill
Walking Access Bill
Policing Bill
Affiliate Te Arawa Iwi and Hapu Claims Settlement
Bill
Central North Island Forests Land Collective Settlement
Bill
Financial Advisers Bill
Aquaculture Legislation Amendment Bill
Fisheries Act 1996 Amendment Bill (No.2)
Te Roroa Claims Settlement Bill
Walking Access Bill
Public Lending Right for New Zealand Authors Bill
Financial Service Providers (Registration and
Dispute Resolution) Bill
Holidays (Transfer of Public Holidays) Amendment
Bill
Source : New Zealand Parliamentary Debates, 2002
- 2008.
49th Parliament December 2008-: Bills accorded
urgency by week (up to week beginning Tuesday 17 February 2009).
Week beginning Tuesday 9 December 2008
Urgency was accorded the introduction and passing
of:
Taxation (Urgent Measures and Annual Rates) Bill
Employment Relations Amendment Bill
Bail Amendment Bill
Education (National Standards) Amendment Bill
Sentencing (Offences Against Children) Amendment
Bill
Week beginning Tuesday 16 December 2008
Urgency was accorded the introduction and passing
of:
Energy (Fuels, Levies, and References) Biofuel
Obligation Repeal Bill
Electricity (Renewable Preference) Repeal Bill
Domestic Violence (Enhancing Safety) Amendment
Bill
The second reading of the:
Corrections Amendment Bill (No.2)
Week beginning Tuesday 10 February 2009
Urgency was accorded the introduction and first reading
of:
Taxation (Business Tax Measures) Bill
Gangs and Organised Crime Bill
Criminal Investigations (Bodily Samples) Amendment
Bill
Sentencing (Offender Levy) Amendment Bill
Week beginning Tuesday 17 February 2009
Hansard is not yet available for this week's debates.
The following list is compiled from urgency motions provided by
Office of the Clerk.
Urgency was accorded first reading and remaining
stages of the:
Electoral Amendment Bill
The introduction and first reading of:
Sentencing and Parole Reform Bill
Children, Young Persons, and Their Families (Youth
Courts Jurisdiction and Orders) Amendment Bill
Introduction and first reading of the:
Resource Management (Simplifying and Streamlining)
Amendment Bill
Scotland: The first Bill
that the Parliament passed was an emergency bill. Since then there
have been 4 more. The latest was dealt with on 4 February 2009:
Mental Health (Public Safety and Appeals (Scotland)
Bill 1999 (SP Bill 1, Session 1)
Erskine Bridge Tolls Bill (SP Bill 33, Session
1)
Criminal Procedure (Amendment) (Scotland) Bill
(SP Bill 49 Session 1)
Senior Judiciary (Vacancies and Incapacity) (Scotland)
Bill (SP Bill 65, session 2)
Budget (Scotland) (No.3) Bill (SP Bill 20, Session
3)
Wales:
Primary legislation:
As yet, we have had no instances of this
procedure being used (as the Assembly currently has no legislative
competence in area where emergency legislation is likely to be
appropriate).
Secondary legislation:
A list of the SIs in breach of the 21
day rule in the Third Assembly (May 2007 - present) can be found
here:
http://www.assemblywales.org/bus-home/bus-legislation/bus-legislation-sub/bus-legislation-sub-21-day-rule.htm
They mostly address animal health / food safety issues. Some of
them are only in force for a limited period of time.
Northern Ireland: 27 Executive
Bills have been introduced since restoration of devolved powers
to the Assembly on 8 May 2007. Of these, 13 were given accelerated
passage: Budget (2007), Welfare Reform, Children (Emergency Protection
Orders), Pensions, Budget (2008), Commission for Victims and Survivors,
Local Government (Boundaries), Mesothelioma, etc., Child Maintenance,
Budget (No. 2) Pensions (No. 2), Financial Assistance and Budget
(2009).
Standing Order 42(2) provides for accelerated passage
to be granted for Budget Bills on the basis that the Minister
has engaged in appropriate consultation with the Committee for
Finance and Personnel.
Bills involving social security issues are also typically
done by accelerated passage due to a long-standing Executive decision
to maintain "parity" with the rest of the UK in this
area of legislation.
5. Has the current global economic downturn caused
any emergency legislation to be brought forward? If so, what process
has been followed for this legislation?
Canada: No emergency legislation
was brought forward in response to the global economic downturn.
It might be worth noting that an economic update in the form of
a speech to Parliament was given by the Minister of Finance in
December 2008, as a sort of "mini-budget."
Australia (Senate): The
current government has introduced several pieces of legislation
to respond to the global financial crisis, and some of these have
been passed very speedily, such as a government guarantee of deposits
in all of the banks, for obvious reasons. Again, the treatment
of the legislation depends on the government persuading the Senate
that the usual Senate scrutiny should be curtailed.
Australia (House of Representatives):
Yes; late in 2008 a package of financial and related bills was
passed; and this year, as mentioned above, a further package was
passed (in fact when the 2009 package was defeated in the Senate
at the third reading stage, a replacement package, modified to
accommodate amendments made in the Senate to the original package,
was introduced, passed by the House under restricted debate and
agreed by the Senate).
New Zealand: A new National-led
government was formed in late 2008 following a general election
in early November. Before the election, National Party Leader
John Key laid out his plans for the first 100 days of being sworn
into office, should National be elected, in a press release entitled
"Key launches action plan" stating (available at http://www.scoop.co.nz/stories/PA0811/S00073.htm):
There are big challenges ahead. National is ready
to deliver a fresh approach. That will start almost straight away,
with a strong economic plan, and improvements to law & order,
health, and education.
On 8 December 2008, the Forty-ninth Parliament opened.
On 9 December, the Leader of the House moved that urgency be accorded
(among other business) the introduction and passing of Government
bills dealing with taxation, employment relations, bail, education,
and sentencing. The motion was agreed to. [32]
A list of bills accorded urgency to date during the
49th Parliament is above.
Scotland: No such emergency
legislation has been introduced.
Northern Ireland: In an
effort to deal with some of the consequences of the current economic
down-turn, the Assembly recently passed the Financial Assistance
Bill by accelerated passage. It took 16 days to complete its Assembly
stages plus a further 9 days to receive Royal Assent.
6. Emergency legislation at Westminster is sometimes
used to close legal loopholes (for example, one identified by
a court ruling). How would legal loopholes be closed by your legislature?
Canada: If the Governor-in-Council
has been delegated the power to close the loophole, it will do
so by enacting a regulation. Otherwise, an act of Parliament would
be required; a government bill emanating from either House or
possibly a Senate Private Bill should the matter relate to a legal
exception, right or privilege being extended to a private interest.
Australia (Senate): There
have been some pieces of legislation to close legal loopholes
which have been treated as urgent, but they have been fairly rare.
Australia (House of Representatives):
Provision to close legal loopholes can be inserted in bills which
have wider purposes (for example bills which may propose a number
of amendments to an existing Act), or they can be introduced as
bills for the purpose only of closing the loophole. We do not
maintain records showing which bills could be regarded as closing
such loopholes, but my assessment is that such provisions would
usually be included in bills having wider purposes.
New Zealand: The Taxation
(Annual Rates and Remedial Matters) Bill 1999 provides an
example of urgency being accorded the passage of a bill so that
a legal loophole could be closed. In moving that the House take
note of the report of the Finance and Expenditure Committee on
the Bill, the Minister of Finance (the Rt Hon Sir William Birch)
stated:[33]
The predominant theme of the Bill is protection
of the revenue base by closing loopholes in GST
and income tax law.
On 1 June 1999, the second reading of the Taxation
(Annual Rates and Remedial Matters) Bill 1999 was accorded
urgency. On 2 September 1999, urgency was accorded the remaining
stages of the Bill.
Scotland: As stated in
the answers to question 2 and 3 emergency legislation has also
been used by the Scottish Parliament to respond to such legal
loopholes.
Northern Ireland: The
Children (Emergency Protection Orders) Act (Northern Ireland)
2007 was passed, by accelerated passage, as a consequence of a
court ruling and completed its Assembly stages in 17 working days.
By way of background, the judge had held in a judicial review
case, that Article 64(8) of the Children (Northern Ireland) Order
1995 was incompatible with Article 6(1) and Article 8 of the European
Convention on Human Rights.
7. Many of the bills passed in a short timeframe
by the UK parliament relate to Northern Ireland. Are you aware
of any examples where parallel legislation was required to be
passed by both the Republic of Ireland and the UK? How, for example,
did you deal with the Offences Against the State (Amendment) Bill
during its passage in 1998? As we understand it, this was legislation
similar to the Criminal Justice (Terrorism and Conspiracy) Act
1998 which was introduced to the House of Commons in the aftermath
of the Omagh bombing and went through all its stages there in
one day. Are there any other examples you would cite?
Northern Ireland: The
example cited occurred prior to the devolution of powers to the
Northern Ireland Assembly.
Annex 1
Extract from Standing Orders of the Northern Ireland
Assembly
42. PUBLIC BILLS: SPECIAL SCHEDULING REQUIREMENTS
(1) There shall be a minimum interval of five working
days between each stage of a Bill, save in the following cases
-
(a) between Second Stage and Committee Stage; and
(b) where a Bill is subject to the accelerated passage
procedure in accordance with paragraph (2) or (4).
(2) Where on or before the Second Stage of a Budget
Bill the chairperson of the Committee for Finance and Personnel
(or another member of that committee acting on his or her behalf)
confirms to the Assembly that the committee is satisfied that
there has been appropriate consultation with it on
the public expenditure proposals contained in the
Bill, the Bill shall proceed under the accelerated passage procedure
which shall exclude any Committee Stage.
(3) Where, exceptionally, a Bill (other than a Budget
Bill) is thought to require accelerated passage, which shall exclude
any Committee Stage, the member in charge of the Bill shall, before
introduction of the Bill in the Assembly, explain to the appropriate
committee -
(a) the reason or reasons for accelerated passage;
(b) the consequences of accelerated passage not being
granted; and, if appropriate,
(c) any steps he or she has taken to minimise the
future use of the accelerated passage procedure.
(4) Before Second Stage the member in charge of the
Bill shall move a motion "That the …. Bill proceed under
the accelerated passage procedure". In moving the motion
the member shall explain to the Assembly-
(a) the reason or reasons for accelerated passage;
(b) the consequences of accelerated passage not being
granted; and, if appropriate,
(c) any steps he or she has taken to minimise the
future use of the accelerated passage procedure.
A motion under this Standing Order shall require
cross-community support within the meaning of section 4(5) of
the Northern Ireland Act 1998.
(5) No Bill shall pass all its required stages in
the Assembly in less than ten days.
(6) Where a Bill has not completed its passage by
the end of an Assembly session it shall be carried forth and its
passage continued into the next session.
(7) A Bill shall not be carried forth if the Assembly
stands dissolved.
Annex 2: Scottish Parliament listed sources
Directorate of Clerking and Reporting. (2007) Guidance
on Public Bills 3 ed Edinburgh: Scottish Parliament
McCallum, F. (2006) Senior Judiciary (Vacancies and
Incapacity) (Scotland) Bill. SPICe Briefing 06/50. Edinburgh:
Scottish Parliament.
Procedures Committee. (2004) Procedures Committee
2nd Report 2004 Report on Emergency Bills. Edinburgh: Scottish
Parliament.
Scottish Parliament (2008) Standing Orders of the
Scottish Parliament. Edinburgh: Scottish Parliament.
Scottish Parliament (2004) Scottish Parliament Official
Report 12 February 2004, columns 5783
SPICe (1999) Summaries of Bills Introduced (Session
1): Mental Health (Public Safety and Appeals) (Scotland) Bill.
Edinburgh: Scottish Parliament.
SPICe (2001) Summaries of Bills Introduced (Session
1): Erskine Bridge Tolls Bill. Edinburgh: Scottish Parliament.
SPICe (2006) Summaries of Bills Introduced (Session
2): Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill.
Edinburgh: Scottish Parliament
Subordinate Legislation Committee. (2008a) Subordinate
Legislation Committee 12th Report, 2008 (Session 3) Inquiry into
the Regulatory Framework in Scotland.
Subordinate Legislation Committee. (2008b) Subordinate
Legislation Committee 21st Meeting, 2008 (Session 3) 17 June 2008
agenda paper SL/S3/08/21/5
Subordinate Legislation Committee. (2008c) Subordinate
Legislation Committee 27th Meeting, 2008 (Session 3) 30 September
2008 agenda paper SL/S3/08/27/3
Subordinate Legislation Committee. (2008d) Subordinate
Legislation Committee 30th Meeting, 2008 (Session 3) 4 November
2008 agenda paper SL/S3/08/30/7
Subordinate Legislation Committee. (2008e) Subordinate
Legislation Committee 30th Meeting, 2008 (Session 3) 4 November
2008 agenda paper SL/S3/08/30/6
Subordinate Legislation Committee. (2007) Subordinate
Legislation Committee 14th Report, 2007 (Session 2) Inquiry into
the Regulatory Framework in Scotland. Edinburgh: Scottish
Parliament.
24 David McGee, Parliamentary Practice in New Zealand
(3rd edition, 2005), p 154. Back
25
ibid., pp 153-7. Back
26
ibid., p 154. Back
27
ibid., p 155. Back
28
Regulations are defined by section 2 of the Regulations (Disallowance)
Act 1989 as follows:
Regulations means-
(a) Regulations, rules, or bylaws made under an Act by the Governor-General
in Council or by a Minister of the Crown
(b) An Order in Council, Proclamation, notice, Warrant, or instrument,
made under an enactment that varies or extends the scope or provisions
of an enactment
(c) An Order in Council that brings into force, repeals, or suspends
an enactment
(d) Regulations, rules, or an instrument made under an Imperial
Act or the Royal prerogative and having the force of law in New
Zealand
(e) An instrument that is a regulation or that is required to
be treated as a regulation for the purposes of the Regulations
Act 1936 or Acts and Regulations Publication Act 1989 or this
Act
(f) An instrument that revokes regulations, rules, bylaws, an
Order in Council, a Proclamation, a notice, a Warrant, or an instrument,
referred to in paragraphs (a) to (e). Back
29
Parliamentary Practice in New Zealand, op. cit., p 396. Back
30
Report of the Regulations Review Committee Activities of the Regulations
Review Committee in 2008, p 5.
http://www.parliament.nz/NR/rdonlyres/E12763DC-ED1A-4C5E-AD18-5B1FD0335062/93918/DBSCH
_SCR_4227_6298.pdf Back
31
Parliamentary Practice in New Zealand, op. cit., p 604. Back
32
(9 December 2008) Vol 651 NZPD p 58.
http://www.parliament.nz/en-NZ/PB/Debates/Debates/3/2/3/49HansD_20081209_00000453-Urgency.htm Back
33
(2 September 1999) Vol 580, NZPD p 19254. Back
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