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

Examination of Witnesses (Questions 380 - 398)


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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