Memorandum by the Leader of the House
of Commons and the Leader of the House of Lords
Is it possible to provide a practical definition
of "emergency legislation"? If so, what is it?
1. "Emergency legislation" is
a term generally applied to bills which have an expedited passage
through Parliament, by cross-party agreement.
2. All primary legislation is subject to
the same stages in both Houses of Parliament. Where there is agreement
between the usual channels that a bill should have Royal Assent
by a particular date then progress through these stages may be
expedited.
3. The extent to which the passage of a
bill may be expedited varies considerably. In some cases, there
may be an agreement to vary slightly the intervals between stages
in one or other House. In other cases, more rarely, a bill may
be taken through all stages in both Houses in a single day.
What examples would you give of when emergency
legislation has been approved by Parliament in the recent past?
Was the case for emergency legislation adequately made in such
cases?
4. We consider in the following paragraphs
three examples of bills passed, by agreement, to a shorter timetable
than usual.
Human Reproductive Cloning Act 2001
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| Lords |
Commons |
| 1R | 2R
| Com | Rep
| 3R | 1R
| 2R | CwH
| 3R | RA
|
|
| 26.11.01 |
| | | |
| 29.11.01 |
| | 4.12.01 |
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5. The Bill was introduced in response to a High Court
ruling that embryos produced by cell nuclear replacement were
not "embryos" within the meaning of the Human Fertilisation
and Embryology Act 1990.[1]
The effect of this was to place human reproductive cloning outside
the scope of regulation by the Human Fertilisation and Embryology
Authority.
6. The ruling was unexpected. The Government had previously
expressed the view that cloning fell within the scope of the Act,
as had the Human Genetics Advisory Commission and the Human Fertilisation
and Embryology Authority.
7. The Government was given leave to appeal but, given
the length of the appeals process, there was an apparent risk
that human cloning could start to take place in the UK before
the appeal was heard. Though scientific opinion on the subject
was divided, several researchers in other countries had announced
the creation of human clones and one of them had indicated his
intention to carry out human cloning in the UK.
8. Parliament agreed to pass the Bill quickly in order
to ensure that a step as significant as the legalisation of human
cloning did not happen as a consequence of a legal loophole.
The Criminal Evidence (Witness Anonymity) Act 2008
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| Commons |
Lords | HC
|
| 1R | 2R
| CwH | 3R
| 1R | 2R
| Com | Rep
| 3R | LAs
| RA |
|
| 3.7.08 | 8.7.08
| | | | 8.7.08
| 10.7.07 | 15.7.08
| | 16.7.08 |
21.7.08 |
|
9. The Bill was introduced in response to a ruling by
the House of Lords that the use of anonymous witnesses in a specific
case had hampered the conduct of the defence to the extent that
the trial had been unfair.[2]
The Law Lords ruled that there was not sufficient authority in
common law to provide for the current arrangements for the admission
of anonymous evidence, and said that this was a matter for Parliament
to deal with by statute. This judgment was unexpected.
10. This raised the prospect of a number of convictions
for serious offences being overturned and could have compromised
a number of pending prosecutions. Within a few days of the judgement,
the jury in a murder trial which had depended on anonymous witnesses
was discharged.
11. There was cross-party agreement on the need to legislate.
The common law framework which had been used to develop the use
of anonymous witnesses had been found to be inadequate. There
was also a need to legislate quickly because the House of Lords
judgment created a serious problem for judges in ongoing trials
and could have led to those trials collapsing.
The Banking (Special Provisions) Act 2008
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| Commons |
Lords | HC
|
|
| 1R[3]
| 2R | CwH
| 3R | 1R
| 2R | Com
| Rep | 3R
| LAs | RA
|
| 19.2.08 | |
| | | 19.2.08
| 20.2.08 | 21.2.08
| | 21.2.08 |
21.2.08 |
|
12. After the Government had decided and announced that
it was necessary to take Northern Rock into temporary public ownership,
the Bill was introduced on an expedited timetable in order to
allow the position of the company to be resolved as quickly as
possible. Extended uncertainty over who owned and ran Northern
Rock would have risked destabilising the company, risking a loss
of confidence on the part of customers, business counterparties
or staff that might have led to substantial loss of value in the
business or, worse, a further run on the bank. This would have
potentially triggered the sort of financial instability that the
Bill was intended to avert.
13. The powers in the Bill anticipated some aspects of
the longer-term reforms on which the Government were consulting
at the time, and were framed so that they would be available,
if needed, to address any further problems that might arise in
the banking and building society sectors pending implementation
of those longer-term reforms. The transfer powers were therefore
subject to a sunset provision limiting their exercise to one year
from Royal Assent. This period was intended to provide sufficient
time to complete the consultation that was ongoing at that time
and take forward the long-term proposals in the shape of the Banking
Act 2009.
Was the nature of parliamentary scrutiny adequate in these
cases?
14. Good scrutiny is an essential part of making good
law. In some cases there is a need to balance the time available
for scrutiny against the need to legislate quickly. In each case,
the amount of time available to consider the bill is a matter
for agreement within Parliament.
Under what circumstances is it constitutionally appropriate
(or not appropriate) to bring forward emergency legislation?
15. It is ultimately for Parliament to decide whether
it is appropriate to expedite a piece of legislation. The range
of circumstances in which it might be necessary to expedite the
passage of a bill is so great that it is not possible to come
up with a rigid set of criteria. The Government will only be able
to do so by cross-party agreement.
What parliamentary scrutiny should emergency legislation be
subject to?
16. "Emergency" legislation is subject to the
same parliamentary stages as any other legislation, but to a shorter
timetable. The Government will seek to make as much time as possible
available for scrutiny, subject to the need to achieve Royal Assent
by a given date.
17. There may be steps which could enhance Parliamentary
scrutiny of bills without lengthening the time taken for their
passage. Most bills, even those that are subject to an expedited
procedure, are introduced before the day on which they are taken
in the first House, so it might be possible to make use of this
interval to allow for additional scrutiny by a select committee.
18. This happened in the case of the Criminal Evidence
(Witness Anonymity) Bill, when the Joint Committee on Human Rights
took evidence on the Bill shortly before it was debated in the
Commons.[4]
19. In some cases, such as the Banking (Special Provisions)
Bill, it may be possible to make a bill available in draft, even
if this is only a few days before it is due to be considered in
Parliament.
20. Legislation may be presented to address a situation
which has been developing for some time, but where the need for
legislation has only recently developed. The House of Commons
Treasury Committee conducted extensive scrutiny of the situation
with Northern Rock and the Government's response to it before
the Bill was introduced. Though this was not direct scrutiny of
the bill itself, it provided both Houses with analysis of the
policy which the bill implemented.
Should emergency legislation be subject to a renewal procedure
or have a sunset clause? Are there any other constitutional safeguards
that should be considered?
21. The Parliamentary process is a constitutional safeguard
in itself. The Government cannot expedite the passage of legislation
without agreement in Parliament that it is necessary or desirable
to do so.
22. There are a number of mechanisms which may be used
to provide ongoing scrutiny of an Act if Parliament considers
that it would be appropriate in the circumstances to do so. As
well as sunset clauses, they include reviews by an independent
body such as those carried out by the Independent Reviewer under
anti-terrorism legislation and provisions for an Act or provisions
in it to be renewed at regular intervals by statutory instrument.
23. Suitability for sunset clauses and renewals procedure
depends again on the nature of the legislation. The fact that
the passage of a bill is expedited does not, in and of itself,
justify the inclusion of sunset or renewal provisions. The case
for sunset or renewal provisions must be considered on its merits
in relation to each bill, having regard to all the relevant circumstances.
24. There may be a case for making legislation which
has been passed with unusual expedition subject to earlier post-legislative
scrutiny under the new arrangements which have recently been introduced.
This might involve, for example, an undertaking to publish post-legislative
scrutiny memoranda after one or two years.
The order-making powers under Part 2 of the Civil Contingencies
Act 2004 have not been used to date. Have there been situations
where these powers might have been used?
25. Through a combination of good preparedness, effective
response arrangements and the flexibility in the existing legislative
process it has not been necessary or proportionate to take emergency
measures under the CCA.
Do the scope and process of the order-making powers in the
Civil Contingencies Act remain satisfactory?
26. The Government is satisfied that the powers in the Act
are satisfactory for the purposes for which they are intended.
27. The order-making powers in the CCA are by nature, broad
and flexible to allow for emergency regulations to be taken forward
as appropriate across the spectrum of potential emergencies. The
spectrum of potential emergencies is reviewed annually as part
of the process to produce the National Risk Assessment—a
classified cross-government document which assesses the impact
and likelihood of the major risks, both hazards and threats that
the country could face over a five year period.
28. Based on this and lessons learned from exercises and
actual emergencies, departments review the type of powers that
may be required so that the Government is able to respond quickly
to an emergency—though the measures needed in any given
situation would be specific to the particular circumstances
Should "bespoke" emergency order-making powers created
by other Acts of Parliament (such as those created by Part 3 of
the Health and Social Care Act 2008) be based on Part 2 of
the Civil Contingencies Act?
29. We consider the CCA model is a good one, but not
necessarily applicable in all circumstances. Each case should
be considered on its merits.
March 2009
1
R v Secretary of State for Health, ex parte Bruno Quintavalle
[2001]. Back
2
R v Davis [2008]. Back
3
The Bill was published in draft on 17 February 2008. Back
4
Twenty-sixth Report of 2007-08, Legislative Scrutiny: Criminal
Evidence (Witness Anonymity) Bill (HL 153, HC 950). Back
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