Examination of Witnesses (Questions 380
- 398)
WEDNESDAY 29 APRIL 2009
Baroness Royall of Blaisdon and Chris Bryant MP
Q380 Lord Peston:
Do you have a view as to whether there have been circumstances
where they might or, indeed, should have been used?
Chris Bryant: We do not think that there is
any occasion when they should have been used that they have not
been used—because, by definition, we would then have used
them.
Lord Rowlands: "Yes, Minister."
Chris Bryant: I am sorry, that is, "Yes
Minister."
Lord Rowlands: That is definitely, "Yes,
Minister".
Q381 Lord Peston:
So you have put them in the bill, but so far they have not had
any productivity.
Chris Bryant: We have not needed them as yet.
Q382 Lord Peston:
That has nothing to do with the possibility that they are not
satisfactory.
Chris Bryant: No. They are very tightly drawn
and that is right and proper, because we see the properly emergency
legislation that is contained in the Civil Contingencies Act as
very much a last resort. There are very strict restrictions on
when it can be used, how it can be used, what offences can be
introduced (for instance, you are not allowed to limit strikes,
you are not allowed to force people to serve in the military,
and so on) and it is very strict about the parliamentary processes
that have to be followed.
Q383 Lord Peston:
To go back to that dreadful buzz-word of the present day "template,"
if we were looking at other legislation where you have emergency
order-making powers and so on to be used in an emergency, would
you regard the way they are set out in the Civil Contingencies
Act 2004 as a template for all other emergency legislation insofar
as it contains order-making powers?
Chris Bryant: Not entirely, because, for instance,
in the Health and Social Care Act 2008 we have introduced some
powers, or rather we have changed the powers that already existed.
I think that that was quite important because in some areas we
wanted to make provision for a magistrate to be able to say that
a less intrusive power could be used in a medical emergency. For
instance, it might be the requirement that somebody stays at home
rather than that somebody is taken to hospital—previously
the only power that was available was quite a draconian one—or
similarly it might be that any person visiting somebody in hospital
in an infectious diseases ward has to wear a mask or whatever.
Also, similarly, we have not taken the precise model from the
Civil Contingencies Act into that Act because in the Civil Contingencies
Act there is the seven days clause and we recognise that we may
want to use the order-making powers to produce a list of different
things that might be necessary in a medical emergency but they
might not be necessary to be implemented for some time.
Q384 Lord Peston:
I have one final question, which you may not want to answer. Is
there any thought in the Government at the moment that we might
need emergency legislation for Mexican swine fever?
Chris Bryant: The Government is following the
situation very closely. That is what it says here!
Q385 Baroness Quin:
Chris Bryant partly touched on my question in answer to Lord Woolf
earlier, but during the inquiry some witnesses expressed concern
that bills fast-tracked contained provisions that were not necessarily
directly related to the urgent matter. I wondered how far that
had been an issue in bills that you had both been concerned with.
Baroness Royall of Blaisdon: I do not think
that I have had any problems in relation to bills with which I
have been concerned. I can say that there have been discussions
about elements which might have appeared but which did not appear
in bills, because we had the sort of discussions that we have
been talking about, and as business managers we felt that it was
not appropriate for certain things to be in certain bills.
Chris Bryant: Clearly Andrew Mackinlay felt
that the latest Northern Ireland Act was not an emergency and
did not think it should be taken forward in one day, or if it
was going to be taken through swiftly it should at least be across
two days. We had a debate about that and we had a vote on it.
Q386 Baroness Quin:
That was the bill as a whole, but I was also wondering about bills
in which you have been involved which might have had specific
provisions which people contested on the grounds that this was
not really urgent and/or should not be part of the bill.
Chris Bryant: None that I am aware of.
Q387 Lord Lyell of Markyate:
So far, speaking for myself, I must say that I have a very great
deal of sympathy with pretty well everything you have said in
your answers, but we are coming to a question which might be a
little bit more controversial. Is it appropriate for government
of any character to seek to table amendments at a late stage of
a bill's process through Parliament, relying on a justification
of urgency, if those amendments introduce wholly new provisions?
Baroness Royall of Blaisdon: My Lords, this
is something that we as business managers do not like and find
difficult. We certainly argue against the inclusion of amendments
at a very late stage, but from time to time, as in the case cited
by Chris earlier in the Criminal Justice Bill of last year whereby
we had to introduce something at a very late stage in order to
pre-empt something in relation to the prisons, we had to do that
because we had to ensure that the Prison Service would not go
on strike. There have been a couple of other instances in which
we introduced something at a very late stage because we believed
it was absolutely vital, but we do not do these things lightly.
Chris Bryant: Late stages are a bad idea because,
as I said earlier, the quality of scrutiny is improved by going
through different stages in both Houses against a different set
of circumstances and with different ways of approaching an issue.
We very much dislike doing it. We are constantly writing to ministers
and saying, "Thou shalt not do it." I am sure Your Lordships
know that the Legislation Committee which every bill has to go
through, which is chaired by the Leader of the House of Commons,
is an important part of the process of saying, "Is this bill
really ready?" and "Thou shalt not introduce new elements
except in response to amendment from other parties, and that shall
only be at committee stage" and therefore very much fighting
against the late introduction of amendments, in particular on
new areas. Of course the vast majority of amendments that are
tabled by government are concessionary or they are responding
to the views of the House or amending amendments often. We scrutinise
all of those, also, to make sure that there is going to be enough
time to debate all of these. Quite often—and I know all
this because I am the person who has to sign the letter to ministers
saying, "You have permission to do this" or "You
do not have permission to do this"—we have to say,
"You say you want three amendments but we know it is going
to take 15 amendments and that is going to take a lot of time
on the floor of the House." I would say there is a very robust
process that goes on in government to clamp down on ministers
who might just have had a good idea on a Thursday afternoon and
want it in the bill by next Friday with as little scrutiny as
possible. But there are very rare occasions when, for instance,
an independent report comes out which calls for urgent action
in a particular area, and there is a legislative channel that
is available, and that is, again, when we would kick in with "Let's
talk to all the parties and see whether they are content with
this process."
Q388 Lord Lyell of Markyate:
If I may say so, I much appreciate both those answers. Does it
tie in with something which I think is really quite a serious
nagging worry, looking back over the past 11 years, that, with
the changes, particularly in the House of Commons on timetabling
and that sort of thing, quite substantial parts of legislation
have come through to this House, to the Lords, without having
been fully debated in the Commons, particularly at report stage.
There is some kinship, is there not, between the problem you have
just addressed very directly and a problem which perhaps still
remains?
Chris Bryant: I sat on a lot of bill committees
as a backbencher and committee stage in the House of Commons,
which is very rarely scrutinised by the world, is a very important
part of the process, and a lot of the amendments that come from
government in report stage are the responses to committee stage
and not always but nearly always satisfy the points that have
been made. I sometimes worry that my colleagues in the Commons
think that report stage is just a repeat of committee stage. Formally
it is not. It is quite explicit that it is not. You are not allowed
to table the same amendment the second time, because the committee
stage has already considered it. So I think sometimes there is
a misunderstanding about report stage, but we do worry that there
is material that is going into legislation from our House that
has not been fully examined. One of the things that the Procedure
Committee in the House of Commons is looking at is whether at
report stage there should not be a time limit on speeches. The
Government does not have a view on this at the moment, but the
Procedure Committee is looking at it, because it is true that
some people will seek to filibuster and to talk on specific measures
so that other measures are not even considered and cannot even
be voted on.
Lord Lyell of Markyate: Thank you.
Q389 Lord Pannick:
In relation to constitutional safeguards in relation to emergency
legislation, your very valuable paper makes essentially two points.
You say, first of all, that the parliamentary process itself is
a constitutional safeguard, and you say whether there is a need
for other safeguards will inevitably depend upon the nature of
the legislation. Can I put to you that there is a case for at
least a presumption of other safeguards (sunset clauses and post-legislative
scrutiny) on the basis that, by definition, if it is emergency
legislation it will not have been subject to the same pre-legislative
scrutiny. As I was saying before, we will not have had the same
opportunity to receive comments from outsiders. We will not have
had the same time for reflection and consideration. In the light
of that, do you think there is a case for at least this presumption
of other safeguards?
Baroness Royall of Blaisdon: In relation to
sunset clauses, for example, sometimes they are appropriate and,
indeed, invaluable. The Banking (Special Provisions) Bill was
a case in question, because the sunset clause in many ways ensured
that we had the necessary banking legislation in place this year,
so that is very good. In other cases, it can cause instability
and disquiet, I would suggest, because people need the necessary
certainty that is being given by the legislation and so a sunset
clause could have an adverse effect. I think we have to look at
each piece of legislation in isolation. In respect of post-legislative
scrutiny, I personally am very much in favour of post-legislative
scrutiny and I look forward to its use and its proper introduction.
Chris Bryant: I think the most important presumption
is that Parliament should presume that legislation will go through
all its proper processes at the conventional pace. It is only
when we want to break that that the Government has to be able
to persuade other people that that is a sane and sensible thing
to do and is proportionate to the ill that we are trying to rectify.
In that, quite often people—opposition parties, backbenchers
or whoever, independent members—might well say, "We
only think that this issue is worked over as a sunset clause"
or if there was a sunrise clause or whatever limit there may be.
Q390 Lord Pannick:
Perhaps I could ask, with the Lord President's permission, one
other question. Some witnesses have suggested to us that a valuable
constitutional safeguard, because it would focus the minds of
civil servants and, of course, ministers, would be something comparable
to the provision in the Human Rights Act; that is a certificate
from ministers certifying to Parliament that there is a need for
emergency legislation and briefly explaining why. Do you think
that would have any valuable role?
Baroness Royall of Blaisdon: I think it would
be valuable to have more and better information and explanation
from the Government as to why this specific piece of legislation
should be expedited. I would argue against certification because
I think in many ways that would be raising the issue to the level
of compliance with the Human Rights Act. I think it is an extremely
important matter whether or not a bill should be expedited but
I would not raise it to the level of Human Rights compliance.
But I do think it would be very good if the Government in some
way could provide more information and explanation.
Chris Bryant: In practice in the Commons we
have something similar, which is the minister's speech at the
beginning of the allocation of time motion, which has to lay out
why we are doing this at speed.
Q391 Lord Norton of Louth:
I can see the point about sunset clauses, it would depend on the
very nature of the measures, so it may be helpful in some circumstances
and not others, but on post-legislative scrutiny the Government
has now accepted the case for a review three to five years after
an act, which I think is very much the way to go. I am wondering
if there is a case for saying that, where a piece of legislation
has been fast-tracked, there may be a case for post-legislative
review to be at an earlier stage rather than waiting three to
five years, so that after a year or so there should automatically
be a review of the legislation?
Baroness Royall of Blaisdon: That is a difficult
one. It is one which I think we should consider as a government.
Just because a piece of legislation has been expedited it does
not mean to say that two years would be an adequate time to see
the bill in operation, and so perhaps two years would be too short
a timescale, but I think perhaps we should give some consideration
to it.
Chris Bryant: I do not think it would apply
in every case. For instance, with the Northern Ireland Act we
have just passed, we will know by the summer whether it was necessary
to have done it because they will have either proceeded or they
will not have proceeded. Indeed, we are very much trying to push
forward as a government and as business managers with the post-legislative
scrutiny process at the moment, and government departments are
keen to get stuck into it but their keenness varies.
Q392 Lord Norton of Louth:
I take the point you are making, but rather than just leave fast-tracked
legislation subject to "automatically being reviewed after
three to five years," giving some thought when it is going
through as to whether there may be a case for early review in
the light of the nature of the measure itself.
Baroness Royall of Blaisdon: We will certainly
consider it and I am sure we will consider it in the light of
your report.
Q393 Lord Morris of Aberavon:
I do not think for the minister, for the Government to endorse
a certificate would mean raising it to the same level as compliance
in Human Rights. It is a parallel argument, as I understand it.
I fully understand how in a timetabled motion the Government has
to justify the timetable, but would it not be helpful for the
Committee to recommend, perhaps, for a number of issues to be
included either in that statement or at some other stage as to
why the legislation is necessary—a sort of check list—and
if it cannot be met in one particular instance, for the minister
to say why it cannot be met. Would there be any harm in that?
Might it not be an advantage?
Chris Bryant: I do not know what a checklist
would quite look like because these tend to be pretty probing
debates in which much of the debate is really the minister's speech
with lots of interventions. My experience is that it would be
pretty difficult for a minister to get away with a rather barren
argument. I am hesitant but if your Lordships' Committee want
to come up with some suggestions I am sure the Government would
be more than happy to look at that.
Q394 Lord Peston:
Is it not true that in some cases, like the Banking Bill, it is
obvious why you have to do it as emergency legislation because
otherwise the whole system collapses and the Government cannot
do what it is doing? That would not really require a certificate,
it is staring you in the face, is it not?
Chris Bryant: I think that is why we like the
flexibility that there presently is. I do not think that is about
being a Labour Government or any brand of government, that is
just about being able to govern effectively.
Q395 Lord Norton of Louth:
A point you have virtually drawn out is the role of each House
and, to some extent, the complementarity of the two chambers in
scrutinising legislation. Is there a role that one can identify
specifically for the House of Lords that would be specific to
the House or do you think the present arrangements suffice?
Baroness Royall of Blaisdon: As I said, my Lord,
I do think that both Houses complement each other. There is sometimes
a perception that all legislation, but especially expedited legislation,
is railroaded through the House of Commons and that we have a
more profound job of scrutiny to do on expedited legislation here.
I think actually the statistics prove differently. It is quite
surprising to see that we spend very much the same amount of time
in both Houses on expedited legislation which is extraordinary
really when they have a timetable down the other end and we regulate
ourselves, but that is how it is. I feel very comfortable about
the present circumstances.
Chris Bryant: My own perception, for what it
is worth, which may not be very much, is the fact that we are
elected but have a stronger whipping system means that we function
in one way, that is the mentality of the way that we approach
scrutiny is in one brand, as it were, whereas the fact that you
are not, and you are whipped in a different style, means that
you proceed in a different way. I think that those are a complementarity.
Often in particular, of course, on the Northern Ireland legislation
there have been constituency MPs who are very, very directly affected
by the legislation as it is going through and often those debates
have been largely dominated by them.
Q396 Lord Norton of Louth:
So there is a value-added element to each House and that is the
value of the process. Do you see any merit at all in bills being
considered simultaneously? We mentioned earlier the Banking Bill,
is there any merit in the two Houses looking at legislation simultaneously
or demerits such as not to really make it worthwhile?
Baroness Royall of Blaisdon: I think the way
in which the Number 2 Bill procedure, if I might put it that way,
was used for the Banking Bill was very good in that it gave us
more time for scrutiny but it also allowed the outside world more
time for scrutiny which it would not have had. I am not sure that
we would wish to use that procedure on a very regular basis but
it is something we should consider from time to time. It is clear
that the Number 2 Bill procedure could not and should not be introduced
until the other House had reached a stage whereby they had finished
the amending stages of their legislation, i.e until after report
stage in the Commons, because you could not be in the situation
where you had two bills which were being amended simultaneously
in the two Houses, that would just be a recipe for confusion and
disaster.
Chris Bryant: It is slightly different obviously
because we cannot amend at third reading but I think you can.
Baroness Royall of Blaisdon: We can.
Chris Bryant: I completely agree, obviously,
that you would have chaos if you had two Houses both amending
at the same time, I do not know how you would resolve that. The
only time when it is possibly useful is the circumstances that
we have when you have got a carry-over bill and the Commons has
completed its report stage but has not yet done its third reading.
Q397 Baroness Quin:
Having moved to the upper House I have obviously experienced a
senior moment and shall ask the question which I did agree to
ask earlier on! It is about the pressure on departments in dealing
with emergency legislation and I wonder whether you can say anything
about that and what the experience of departments is and how satisfactorily
they are able to respond to this?
Baroness Royall of Blaisdon: I think that undoubtedly
expedited legislation does put enormous pressure on departments.
There are mechanisms and strategies in place which allow them
to show some flexibility and deploy staff as and when necessary
on expedited bills. I think that has been rather successful to
date, but I will hand it over to Chris. I would say it also places
huge demands on parliamentary counsel. I have very high regard
for First Parliamentary Counsel and parliamentary counsel in general.
I think he does a splendid job in redeploying his own parliamentary
counsel to ensure that they can meet the demands of expedited
legislation.
Chris Bryant: It is a very important point about
parliamentary counsel because with the normal bill the process
of drafting the bill will include, as you yourself know, the process
of, first of all, getting clearance for the policy, agreeing the
policy, sending out instructions to parliamentary counsel and
then several iterative processes. All of that is condensed very
rapidly when you have to introduce emergency or expedited legislation
and that puts them under enormous pressure, which is yet another
reason why Government is very reluctant to do it unless it really
has to. In my experience in the instances that we have had that
parliamentary counsel has done a phenomenal job in that process,
but getting all the ducks lined up in a row at speed is quite
difficult.
Q398 Lord Lyell of Markyate:
Just reinforcing, and I very much agree with what you say, one
of the advantages of fast tracking is that you come to the front
of the queue and the departments absolutely have to get it in
front of parliamentary counsel but has it not been your experience,
as indeed it was in earlier years, that to get departments to
give clear and proper instructions to parliamentary draftsman
can be a serious problem?
Chris Bryant: It is a difficulty and it is a
significant part of the Officer of the Leader of the House's job
which at the moment falls to me to make sure that for all legislation
that process happens properly and swiftly so that when a bill
is presented to the Legislative Committee it is actually in proper
order and we are not already predicting ourselves that we are
going to want to amend it because, frankly, it was not well enough
drafted.
Chairman: Lord President and Deputy Leader of
the other place, can I thank you both very much indeed on behalf
of the Committee for joining us this morning and for the evidence
that you have given, particularly in the case of the Deputy Leader
of the other place in the light of his awesome achievements in
the London Marathon at the weekend. Thank you very much indeed.
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