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

Examination of Witnesses (Questions 340 - 359)


Baroness Royall of Blaisdon and Chris Bryant MP

  Q340  Lord Morris of Aberavon: So this Committee really would be wasting its time if it tried to define circumstances. I go back in history and we have spent a lot of time looking at the Dangerous Dogs Bill and the legislation in which I was involved after the Omagh disaster. Is there a sort of political imperative that something must be seen to be done that sometimes motivates emergency legislation?

  Chris Bryant: I would draw a slight distinction, My Lord, if I might, between what you yourself said, which is that once the Government thinks it is a good idea and it persuades the opposition then it is okay and say that we have very strong checks and balances in the constitutional settlement that we have between the two Houses that means that it is only Parliament that in the end decides whether we should be expediting legislation. I think to limit Parliament by saying that this could only apply in certain categories would be a mistake, because there would just come a time when Parliament might have to say "I'm sorry, we got this wrong, let's revisit it." Of course a lot of these things are proceeding by convention. The amount of time between each stage and so on are all by convention, but I think they have served us pretty well in making sure that we have the checks and balances that are necessary.

  Q341  Lord Morris of Aberavon: Would you agree that we would be wasting our time in trying to define circumstances?

  Chris Bryant: I am very hesitant to tell you that you would be wasting your time, My Lords!

  Q342  Lord Morris of Aberavon: I have done a lot of that in my time.

  Baroness Royall of Blaisdon: Perhaps I could add that I think the exercise in which this Committee is currently engaged is an invaluable stock-taking. I think it is very necessary for Parliament to look at procedures from time to time and to see whether or not procedures have been properly used, if they have been abused, but I would strongly counsel against, if I might be so bold, the Committee setting criteria. I think it would ill-serve government.

  Chris Bryant: It might just be worthwhile my saying, as a business manager, that in the Commons the Leader of the House and myself are very aware that if we have any of these issues of the amount of time allocated to a bill wrong, we will know that very, very swiftly. The Whips will know that from their opposite numbers. I know there is a former Chief Whip from the Commons amongst your midst anyway, but he has moved on to much greater things now. Many of you will know those processes, but on top of that, in the Chamber, when it comes to business questions every Thursday, the Leader of the House has to defend the amount of time that is allocated. I think that is a pretty good convention. For the most part, when the whole of the Chamber howls, the Leader of the House gives way.

  Q343  Lord Rowlands: Two things come running through your submission. One is this theme that Parliament has to agree and the second is that there has to be cross-party agreement. I would like to explore both of them for just a second. Mr Bryant said there is a Commons procedure called the allocation of time. There is a Lords procedure which is that you have to put a motion down to suspend the standing orders. To your knowledge has there been any occasion when in fact Members of this House have wanted to debate that motion and possibly debate or vote on it?

  Baroness Royall of Blaisdon: To my knowledge there is not. I may be wrong, and if I am I will certainly come back to you, My Lords. I think it is an issue which we as a House should look at closely. I know that this Committee is looking at ways—and I am sure you will come on to it later, My Lords—whereby perhaps the Government could/should be more open or more open to discussion about timetables on expedited legislation. To date, when the motion is put before the House it usually just goes through, which from a business manager's perspective is absolutely great, and it obviously reflects the agreement which has been made between the usual channels, but of course it is open to any Member of the House to speak to that motion, and perhaps that is something the Committee should look at.

  Q344  Lord Rowlands: As I understand the process now, you seek all-party agreement, and the first thing you do is to fix the date of Royal Assent and then work back from that. You look at how expedited the legislation has been from the date on which you decide you want Royal Assent. What determines the date of Royal Assent? You say, "We have to have the bill by this particular date" and that is where you start from, I gather. Is that right?

  Baroness Royall of Blaisdon: It is.

  Chris Bryant: This was not a piece of emergency legislation but just one incidence which I think might help in the discussion. On the Criminal Justice and Immigration Act last year we had to have Royal Assent in time to deal with the issue of prison officers and whether they could strike, and it was necessary, in order to allow sufficient debate on some elements of the bill, to ditch some of the other elements of the bill. So there will be moments when we are time-limited by a factor which is outside government or Parliament's control. That is when the decision about the Royal Assent date is absolutely key to us. Also, for instance, on the Northern Ireland Act this year, though there was quite a bit of discussion in the House of Commons about whether there was a real need to proceed precisely to this timetable, nonetheless there was a very strong feeling that we had to make it possible for the Northern Ireland Assembly to put together its legislation for a new Justice Department if they wanted to, so that we could then do the next stage through Parliament of the necessary orders by the summer recess. Again that is what helped determine when we thought we needed Royal Assent.

  Q345  Lord Rowlands: I am curious, because you make such a point about the date of Royal Assent, as it were, being the starting point of an agreement between the parties, as to how you fix that date. What are the specific factors that fix that date?

  Baroness Royall of Blaisdon: If we discover that there is a gap in existing statute law, we know that from a certain date the Government is going to be contravening a law, as it were, therefore we have to ensure that we comply with the law before we are in contravention of the law.

  Q346  Lord Rowlands: Compliance.

  Baroness Royall of Blaisdon: Compliance. We have to comply with the law.

  Chris Bryant: Sometimes what they really mean is "as soon as possible" having made sure that parties are content that we are able to give it enough legislative time to be able to consider the legislation properly.

  Q347  Lord Shaw of Northstead: Sir Joseph Pilling told us that "it may be a mistake to look at this issue as a choice between the expedited or emergency procedure and the normal procedure. There may be an issue to be explored about how expedited and how emergency, as it were, the procedure ought to be." In other words, is there possibly a halfway stage or can the brake be applied or lessened during the process of the bill? If one takes up that point, if in fact the Government has a large majority, cannot it rule over any pre-arranged procedure and carry on with its majority?

  Chris Bryant: We have a majority in our House—and long may that continue—but we do not in your House, and so we as business managers (the four business managers: the Chief Whip and the Leader in the Lords, and the same in the House of Commons) meet on a regular basis, and a major part of the consideration is what will the House of Lords want out of this process. What will the cross-party consensus want out of this? It is worth saying that "cross-party" in the Commons means something slightly different from in the Lords, not least because quite often the people who are least happy with arrangements on emergency legislation are members of the Government's backbenches who have not necessarily been involved in the process of determining that timetable. But, again, the Leader of the House has to defend the argument on the floor of the House and then there is a vote.

  Baroness Royall of Blaisdon: In relation to the amount of time devoted to each bill, this differs according to the complexity and sometimes the controversy surrounding such a bill. With the Northern Ireland Bill earlier in this session, in the House of Lords we spent 4 hours 48 minutes and in the House of Commons 6 hours and 29 minutes, whereas on the Banking (Special Provisions) Bill we spent 11 hours and 9 minutes in the House of Lords and 9 hours and 58 minutes in the House of Commons, because of course that was a much longer, more complex, and in many ways a much more controversial bill. The time devoted does depend on the bill itself.

  Chris Bryant: Also, in the case of the Banking (Special Provisions) Bill there were Government amendments which were introduced in the Lords and there were no amendments introduced in the Commons. There was pretty much unanimity about the need for those amendments but it meant that it was necessary to have further time.

  Baroness Royall of Blaisdon: The Government amendments were introduced, if I might add, My Lords, as a consequence of the debate. They were consensual amendments which arose as a consequence of the demands, as it were, of the opposition parties.

  Q348  Lord Peston: In the case of a number of these bills, would they not have happened whether we had to rush them through or not, and, therefore, if we had considered them more slowly and carefully we would have ended up with a better bill? In other words, do we not have a danger of a kind of Gresham's law here, that bad bills drive out good? It is all very well to say, "Well, we can come back to it," but we all know that in practice it is very hard to come back. To take the Banking Bill—which I know we had to have because of an economic crisis—it is a very faulty bill. Clearly anybody looking through economic policy, as I do, knows that the banks are not doing what we want them to do by a million miles. It looks as if there is not the slightest chance that we are going to have another banking bill within the foreseeable future. Is not one of the things that ought to be weighed in the balance—and for all we know is, which is what I would like your opinion on—that if we use special time for a bill we are in danger, whilst saving the immediate situation, of doing some longer term damage? Are there not long-term costs that have to be borne in mind?

  Baroness Royall of Blaisdon: I do not think, My Lords, there is necessarily a corollary between a bad piece of legislation and an expedited piece of legislation.

  Q349  Lord Peston: I am sorry, I do not mean bad; I mean not as good as it should be.

  Baroness Royall of Blaisdon: Okay. I take that point on board, My Lord. I guess any piece of legislation can always be improved. Of course it is correct that there is not as much time for scrutiny with expedited legislation. Neither is there as much time to gather the information which is often provided by outside bodies, et cetera, et cetera. However, the noble Lord cites the Banking (Special Provisions) Bill and I am sure that that could have been perhaps better than it was, but there are other pieces of legislation which have been expedited which I think have been very good pieces of legislation.

  Chris Bryant: The Government would prefer, full stop, not to have to expedite legislation and that should be the assumption of our constitutional settlement. That is the basis upon which we proceed, which is why we have all the conventions that we have about the time between each stage and so on. I am intrigued. Baroness Royall has already mentioned the figures from the Northern Ireland Bill, where we ended up spending more time in the House of Commons than in the House of Lords, but that was with an allocation of time motion, whereas in the House of Lords you did not have such timetabling. I think sometimes a piece of legislation may not be as good as it could be but we have to balance the need for swift action against whether we are doing detriment to the quality of the legislation that is so significant that we would have been better to have taken more time. In the Banking (Special Provisions) Bill case I think we have been proven right. Prevarication would have undone us.

  Q350  Lord Peston: We had to have a bill done—I am not denying that—but I would like to see when we are going to have another banking bill and I do not see it for quite some time.

  Chris Bryant: Who knows?

  Q351  Baroness Quin: I am trying to clarify a little bit the nature of the cross-party agreement. If you take something like the Banking Bill, it was controversial, and I think it was voted against by the opposition in the Commons. Presumably the cross-party agreement is on the fact that legislation is needed to deal with a particular situation and that a timetable is agreed, but, beyond that, politics comes into it, as ever, and there are disagreements. Are there any examples of bills that you know of under the emergency procedure, either under the present government or indeed the previous governments, where there has not been cross-party agreement on (a) the need for the legislation and (b) the timetabling of it?

  Baroness Royall of Blaisdon: To my knowledge there has not been, but I may well be wrong. I cannot imagine how one would succeed in getting either the process underway or in getting the piece of legislation if there were not cross-party agreement. Certainly from the House of Lords' perspective it would be impossible.

  Chris Bryant: In the Commons I cannot see how that could happen. I could see that there would be ferocious debates, but any political party is then faced with the issue of: "So, are you really saying that we should not be legislating in this area or at an expedited pace?" There are very, very regular conversations between the "usual channels," between the Whips, about every piece of legislation as it goes through and, if a committee stage ends on a Tuesday, whether it is all right by the House to bring forward the remaining stages a week and a half later, the following Monday, or not if there has been a bank holiday in between, and so on. I would say that the relationship between the Whips' offices in the House of Commons is pretty emotionally intense.

  Q352  Baroness Quin: Even if a government had, like in 1997, a very substantial majority and it wanted to bring something in because it felt it was important, even though somehow or other this was being objected to by the other parties, are you saying that, in order not to jeopardise the normal functioning of the usual channels, the Whips' offices and so on, a government even in that position would not go ahead? Maybe there just are not any examples, but I am trying to get to the point where a government has a huge majority and it sees something is important even though the other parties are objecting to it.

  Chris Bryant: We might have a huge majority in the Commons but I think, almost immediately, if the business managers in the Commons were to seek to use an expedited process on a bill in the Commons and then to try to get one through in the House of Lords, the Lords' business managers would say, "We just couldn't get that through." It would mean that (a) there would be a process story about this piece of legislation which would be unhelpful and would hide the policy which you are trying to deal with, and (b)—and I am treading on my colleague's toes here—would completely skew the processes in the House of Lords, and that consensual basis is, as I understand it, absolutely essential to the way you do your business, and so we would be told, "No way, José."

  Baroness Royall of Blaisdon: I also think that by their very nature, because expedited bills are a reaction to certain circumstances, they tend to be bills in which we can find consensus. They are not political in the usual sense of the word because a circumstance has arisen and most people would agree that there has to be a response to those circumstances.

  Q353  Lord Rodgers of Quarry Bank: On the question of expediting emergency legislation, both preparation and in debate, a proposition was given to this Committee by Professors Miers and McEldowney where they suggested there should be a template for emergency powers and the idea of having what was referred to as "off the peg" draft legislation against any other way; in other words, you would have a pattern, it would be discussed between a select committee of the Commons. As I understood it, if the occasion arose, there would be a minor amount of redrafting because a formula was there. I do not know whether this is a new proposition and whether you have been aware of it before. Does it make any sense to you?

  Baroness Royall of Blaisdon: I cannot say that I, My Lords, have heard of such a suggestion. In drafting bills, there is, I am sure, a clear departmental procedure and Parliamentary Counsel clearly has a clear procedure already. I am not sure whether or not a template, as it were, would assist. There are already procedures there, and I cannot think what a template, as it were, would add to those procedures which already exist.

  Chris Bryant: I also cannot see how a template could cover the Human Reproductive Cloning Act 2001 and the Criminal Evidence (Witness Anonymity) Act 2008. They both arose from a similar problem, which was a legal problem in the courts, but I cannot see how a pro forma would meet the needs.

  Q354  Lord Rodgers of Quarry Bank: Is there a commonality, do you think, between emergency legislation? Is there anything common to the characteristics, except that it was necessary very soon?

  Chris Bryant: I think all we are really saying is that there is not properly speaking, except in relation to the Civil Contingencies Act, anything that is emergency legislation. We do have situations where Parliament decides, granted the checks and balances that we have both already mentioned, that it is necessary to expedite the process and to take stages in the two Houses more swiftly than usual. I might just say, My Lords, I think there is one area, particularly in the Commons, where there is a problem with expediting legislation, which is where we have to take all stages in one day, because it means that it is difficult to table amendments after second reading. In the Commons we have had a standing order change to allow us to table amendments before second reading, but that is not ideal because quite often a Member will say, "I'm sorry, I didn't know what you really meant by this bill until I heard the second reading debate." We have made an undertaking in the Commons that we will do our level best to make sure that, even if there is just a day between second reading and remaining stages, we will try to do that in the future.

  Baroness Royall of Blaisdon: My Lords, as the noble Lords will know, it is our practice in the Lords not to do all stages on one day.

  Chris Bryant: We learn from you sometimes.

  Baroness Royall of Blaisdon: Excellent.

  Q355  Lord Norton of Louth: To pursue a point touched upon by Lady Quin in relation to cross-party agreement, you have stressed that you proceed on the basis of cross-party agreement. I really want to tease out how you are defining that term, because cross-party is not necessarily the same as all-party. How encompassing is cross-party agreement? Is it sufficient, say, if you have opposition agreement, or do you try to encompass all parties before proceeding?

  Baroness Royall of Blaisdon: In the House of Lords it means the Conservative Party, the Liberal Democrats and the cross-benchers.

  Chris Bryant: It is rather more complicated in the House of Commons. Because the two main parties are in such substantial numbers, we do try to make sure that that relationship is established first with the Official Opposition and with the Liberal Democrats, but also with the smaller parties, in particular in relation to Northern Ireland legislation. Obviously it is very important that we are able to make sure that they are at least not very discontent. I have only been in this job for a few months, but I have noticed already that sometimes people who say that they are very discontent in the Chamber, afterwards, in private, are less discontent, and, indeed, quite happy.

  Q356  Lord Norton of Louth: Essentially, there are no veto players, in the sense that if the opposition, say the Liberal Democrats, are in agreement, you would not regard any other parties, say, as being able to exercise a veto in proceeding with expedited passage.

  Chris Bryant: No, there is not a veto. There is not in the House of Commons. In the end, we have a debate and a vote, if necessary. We do not proceed entirely by consensus. But we do understand that when it goes to the Lords we will have to be proceeding by consensus. That is always part of the business managers' decision-making process.

  Baroness Royall of Blaisdon: In the House of Lords, we begin our discussions with the Conservatives because they are the major opposition party, but then we go on to the Liberal Democrats and the cross-benchers.

  Chris Bryant: Always at my back I hear, "The House of Lords is drawing near."

  Chairman: At times we share it.

  Q357  Lord Rowlands: I noticed in the list of bills that we put at the back of the questions, and there are some 30 of them, all of those bills were carried in one day in the Commons but there are six of them that went through the usual processes in the Lords. Does that not cast some doubt on the ability of the fast-track approach in the Commons, that six out of these bills went through the usual processes and were not fast-tracked at all in this place?

  Chris Bryant: We have made a commitment in the House already to do as much as we can on this issue of allowing people to be able to table amendments properly after second reading than before.

  Q358  Lord Rowlands: There are six bills here that were not expedited at all in the Lords which went through the Commons in one day, including the Dangerous Dogs Bill and the Aggravated Vehicle-Taking Bill. What is the explanation for that?

  Baroness Royall of Blaisdon: I think that just reflects the fact that in the House of Commons the Government has a majority and therefore they can expedite bills in a day, but in the House of Lords there is no cross-party agreement and we are a self-regulating House.

  Q359  Lord Rowlands: I understand that, but to go from a process of a bill which is dealt with in one day in the Commons and not to even have a modestly expedited process on six of these bills does put a question mark over the validity of the original pushing of the bill through in the Commons, does it not?

  Chris Bryant: I think all the bills that we were referring to are ones that happened sometime before I was around, so I do not know them very well. I think they might even have been when you yourself were in the House of Commons, My Lord.

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