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


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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