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

Memorandum by the Clerk of the House of Commons


  1.  In its Call for Evidence (29 January) the Committee sets out eight principal themes of the inquiry, and it has since indicated practical issues which it would be helpful to address. I comment upon the second category and upon appropriate aspects of the first.

  2.  I have seen the Memorandum by the Clerk of the Parliaments and I agree with those parts—for example, the operation of Joint Committees—which affect both Houses equally. The scope of his comprehensive paper allows me to be briefer in commenting from a House of Commons perspective.

  3.  I should say that the issues being examined by the Select Committee on the Constitution are, of course, of considerable interest to Committees of this House. I understand that our Procedure Committee has it in mind to conduct an inquiry into the programming of legislation, which will no doubt embrace issues raised by "emergency" legislation.

What is emergency legislation?

  4.  There is no conclusive, formal definition of what an emergency bill is. Case by case, "emergency" bills are those which the Government of the day represents to Parliament must be enacted swiftly ("with unusual expedition", in May's phrase[5]), and then uses its power of legislative initiative and control of Parliamentary time to secure their passage.

  5.  The need for such expedition arises in two main ways:

    — from events largely unforeseeable where a legislative remedy is urgently needed (for example, a court judgment with immediate administrative and political implications, or perhaps civil unrest or terrorist threat where existing powers are proving to be inadequate); and

    — where the need for legislation may be foreseen (although perhaps only within Government) for some time but, when the moment comes to take action, the Government wishes to move swiftly, perhaps to allay market anxiety or to formalise the outcome of a difficult negotiation.

  6.  The need for speed is a matter of judgment of the Government of the day; but it is a judgment that may not be shared by all parties. In such cases, the rapid passage of a bill may constrain not only debate and scrutiny of detailed provisions, but also opportunities to explore and challenge the reasons for urgency. However it may be argued that lack of clear finalised instructions on objectives of a bill is as much a difficulty in producing good legislation as the amount of time spent in examining it.

  7.  These difficulties over the need for urgent action do not arise where there is all-party agreement; but lack of adequate scrutiny maybe argued as undesirable even in that circumstance.

  8.  The Committee's questions about making the case for emergency legislation, and whether Parliamentary scrutiny is adequate, are essentially matters of political judgment on which I would not express a view.

  9.  There is no definition of what constitutes "unusual expedition". So far as the Commons is concerned, a convenient first category is that of Bills which pass all their Commons stages in a single day (and Annex A lists such Bills from Session 2000-01 onwards). However, "unusual expedition" is necessarily subjective, and many other Bills might be regarded by different observers as having been passed with unusual (or undue) speed.

  10.  In this connection, the Clerk of the Parliaments rightly draws attention to proceedings on the Bill for the Prevention of Terrorism Act 2005; not only because it was passed with unusual expedition (although it occupied four sitting days in this House) but because it demonstrates that exchanges between the Houses can require significant additional time and test the House's ability to proceed with due attention and care and provide high level support service.


  11.  The Committee may wish to note other circumstances in which legislation passes quickly, or where the process is under special time constraints:

    — When a Dissolution of Parliament has been announced and, by agreement between Government and Opposition, necessary (and usually non-controversial) legislation is passed quickly, or debate on the final stages of Bills already considered in some detail is truncated.

    — When the expiry of "sunsetted" legislation approaches, or there is some other deadline for Royal Assent. In these circumstances, there may be severe time constraints, especially on the later legislative stages.

    — Consolidated Fund bills, consolidation bills, bills to give effect to proposals from the Law Commissions, and Tax Law Rewrite bills are subject to expedited procedures in the House of Commons (S.O. Nos. 56 and 58 to 60).

  None of these cases amounts to "emergency legislation" as generally understood.

Constitutionally appropriate?

  12.  The Committee asks in what circumstances "it is constitutionally appropriate (or not appropriate) to bring forward emergency legislation". In my view, this is an entirely subjective judgment. Each House is master of its own procedure and reaches its own conclusions. Just as there is no objective test of what is a "constitutional bill" which by convention is expected to be taken in Committee of the whole House in the Commons, there are no clear criteria of constitutional appropriateness that can be applied to emergency legislation.


  13.  The Committee asks how much notice the House Authorities have that emergency legislation is being contemplated.

  14.  The Clerk of Legislation sees drafts of all Government bills before introduction, sometimes a considerable time in advance, in order to satisfy himself that a proposed bill complies with the rules of the House. He will also consider submissions from Parliamentary Counsel, acting on behalf of the Government, on such matters as the likely scope of a bill, the possibility of hybridity, the need for Queen's and Prince of Wales's Consent and the need for Money or Ways and Means authorisation. He will see Explanatory Notes in draft, among other things to ensure that these are phrased in neutral terms, without advocacy. In this process he is advising Ministers as Members of the House, entirely in confidence, in the same way that the Clerks in the Public Bill Office would advise a Private Member on a bill before introduction. A similar process takes place in the House of Lords (but without the financial element), and the Clerk of Legislation in the House of Commons and the Clerk of Public Bills in the House of Lords keep in close touch.

  15.  Although the period of notice may be much shorter in the case of an emergency measure, a draft of any bill must nevertheless be examined and cleared for introduction. However, unless the Government has made some public announcement, the requirement to deal with these matters in confidence means that the practical steps that can be taken to prepare for Parliamentary consideration are extremely limited.


  16.  The Committee asks if, for emergency legislation, normal procedures are simply followed more quickly, or whether the process differs in procedural terms.

  17.  In the House of Commons there is no rule prohibiting more than one stage of a bill being taken on the same day[6] (although there is a generally observed convention that two weekends should elapse between presentation and Second Reading). Indeed, it is now routine for Report and Third Reading to be taken at the same sitting.[7]

  18.  If the House has made no Order regulating the proceedings on a Bill, then debatable Questions will arise between Second Reading and Committee ("That this House will immediately resolve itself into a Committee on the Bill") and, if an amendment has been made in Committee of the whole House, between Committee and Report ("That the Bill be now considered"). If a Money Resolution or a Ways and Means Resolution is required to allow certain provisions of the bill to be considered in Committee, this must be agreed to after Second Reading and before committal.

  19.  The procedures described above are followed if more than one stage of a Private Member's Bill is taken at the same sitting, although it is worth noting that the Chair deprecates the taking of such a Bill in Committee of the whole House immediately after Second Reading because it makes it difficult for Members to propose amendments (which in any event would have to be manuscript amendments).

  20.  For Government bills proceeded with urgently, a comprehensive regulating motion is now invariably tabled—in its effect, a guillotine—which makes provision for the handling of each stage (including putting forthwith Questions which otherwise would be debatable) and allotting time to each stage, including exchanges with the Lords. These now follow a fairly standard format, and two examples[8] from Session 2007-08 are at Annexes B and C. It should be noted that:

    — A motion of this sort requires notice, which must be given by the rise of the House at the end of the previous sitting; and

    — Notice of presentation of a bill must be given by the same time; but, if this is not possible, the leave of the House may be sought for a bill to be brought in, and that bill may then be proceeded with at the same sitting. Because notice is required for any regulating motion of the type described above, a high degree of consensus is needed if a bill is to be brought in and taken through all stages at the same sitting.

    — An omnibus regulating motion of this type, but covering various stages of proceedings on several bills, is now used just before a Dissolution. That on 6 April 2005 applied to proceedings on seven bills.

  21.  The Committee further asks if there are elements of the legislative process which are curtailed or omitted.

  22.  Self-evidently, the powerful constraints on time under the procedures set out above mean that scrutiny through debate and proposed amendment is severely limited. In the Commons, scrutiny in Public Bill Committee (which allows the taking of written and oral evidence in select committee mode as well as conventional debate) will not take place, because bills are taken in Committee of the whole House.

  23.  Complementary means of scrutiny, such as evidence taken or reports made by relevant select committees, are unlikely to be possible (although, as such scrutiny does not depend upon the formal introduction of a bill, a committee may be examining the issues which are leading to the introduction of an "emergency" bill, and its conclusions might then be useful in the formal consideration of the legislation).

  24.  In his paper the Clerk of the Parliaments considers delegated legislation and the procedures for its scrutiny in some detail, and I will not comment further, save to say that in the House of Commons the Government need give notice of a motion to approve such an instrument only by the end of the previous sitting. A "tag" appears on the Order Paper to inform the House if the Joint or Select Committees on Statutory Instruments have not been able to consider the instrument, but the motion may be proceeded with nevertheless.

  25.  In Session 2007-08, the Joint Committee on Human Rights was able to report on the human rights aspects of the Criminal Evidence (Witness Anonymity) Bill; the bill passed all its Commons stages on 8 July 2008 but the Committee's report was available for the Lords stages. In the case of the Banking (Special Provisions) Bill (2007-08) and the Northern Ireland (St Andrews Agreement) Bill (2006-07), however, the timescale proved too demanding. Even the Anti-Terrorism, Crime and Security Bill of 2001-02 and the Prevention of Terrorism Bill of 2004-05, which were proceeded with swiftly but not with all Commons stages in one day, posed problems of scrutiny and timing.

  26.  I imagine that the Constitution Committee will wish to seek evidence directly from the various Joint and Select Committees whose work may be affected by legislation which is proceeded with speedily.


  27.  The Committee asks about the impact on the Houses and on staff, recalls of Parliament, and other practical issues. Emergency legislation will put pressure on services supporting Chamber sittings, and particularly on the Public Bill Office (PBO). Late sittings may be necessary, and the business may be unpredictable if there are continuing exchanges between the Houses; but this is often part of the Parliamentary environment for other reasons, and staff are well used to coping. The procedures for recalls are well established; a recall of Parliament may be disruptive, for example to works projects, but this is true of a recall for whatever reason, whether legislative or not.

  28.  The efficient provision of papers is crucial to the consideration of emergency legislation.

    — One-volume bills[9] are routinely printed overnight, so this aspect is not a problem for emergency legislation if the text is handed in to the first House PBO (in practice the Commons) the day before presentation; but some forewarning is needed.

    — If emergency legislation is contemplated, the Commons PBO will suggest to the Government that an "informal final draft" of the proposed Bill should be placed in the Vote Office, and sent to the parties and relevant select committees, thus allowing some time for examination to be gained. A final draft of Explanatory Notes on a bill may be treated in the same way.

    — In the House of Commons, the tabling and selection of amendments may be a particular challenge. If a bill is presented one or more days before it is taken through all stages, a motion is often put down to allow amendments to be tabled before the bill has been read a second time.

    — However, if a bill is presented on the day on which it is to be taken, or if otherwise it is not possible to give two days' notice of amendments, then for Committee of the whole House the Chairman of Ways and Means will have to consider the selection of:

    — "starred" amendments (those tabled the previous day and printed in the conventional way); and

      — manuscript amendments (those of which notice is given on the day the bill is to be taken);

    — If the timescale is so short that some or all of the amendments offered will be manuscript amendments then an amendment paper must be compiled and published by the PBO, rather than being set by House staff in the usual way for printing overnight by The Stationery Office. This means that a cut-off time must be set for the production of the paper; it also means that there is very little time to formulate advice to the Chairman of Ways and Means on the selection of amendments, for the Chairman to hold his selection conference, and for the selection list to be produced and circulated.

    — Even then (because the cut-off time for the production of the paper is administrative rather than being on the instructions of the House) further manuscript amendments may be offered and will have to be considered for selection. A revised selection list will then need to be drawn up and promulgated.

  29.  Additional difficulties arise in exchanges between the Houses, because then the handling of amendments (and of the propositions of the Government) is only one element. The proposals of the other House must be received, printed and distributed; and the speed with which exchanges can take place is likely be determined as much by the time the Government needs to decide on its position (perhaps after informal negotiations) as by arrangements for handling the working papers.

  30.  It will be clear from this description that the process of emergency legislation can be supported, but the margins are very narrow and the possibility of error increases with speed. And when amendments are formulated, tabled, printed, circulated, selected and then debated at such a pace, this adds to the difficulties which the House may face in coming to grips with the text of the bill itself.

  31.  It is also the case that when the pace of legislation is accelerated to this extent, public access to the legislative process is virtually impossible. Legislative material on the Parliamentary website is comprehensive, including every working paper as well as Library briefings (and the range and ease of access is being further improved); and documents are posted immediately after their publication in hard copy. But when a debate is taking place on an amendment tabled perhaps only three hours before to a bill published only that morning, the ability of outside organisations, pressure groups and individuals to comment is in practice non-existent.

  32.  This memorandum has considered those aspects of emergency legislation which fall within my responsibilities, and which are not covered by the paper by my Lords counterpart. I would of course be happy to provide further information, or to expand on the paper should the Committee wish me to do so.

  33.  In the final part of the memorandum perhaps I might suggest some issues which the Committee might like to explore further as part of its inquiry:


    — The disparity of time provided for debate in the House of Commons and in the House of Lords.

    — The possible use of "No 2" bills to make the most of the total time available for Parliamentary consideration.

    — The need to ensure that a bill which is to be taken with "unusual expedition" contains only those provisions which are urgent, and that the temptation to take advantage of a legislative vehicle to include other material is resisted.

27 March 2009

5   Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament: 23rd Edition, pages 655 to 658. Back

6   Except for Bills brought in upon a Ways and Means Resolution (for example, the Finance Bill). However, this requirement is now routinely disapplied by Order of the House (even if there is no requirement for speed). Back

7   And for most Government bills to be programmed under S.O. Nos. 83A to 83I. Back

8   That for the Northern Ireland (St Andrews Agreement) Bill (Annex B) was a conventional "guillotine" or Allocation of Time Motion on which, under S.O. No. 83, debate is limited to three hours; that on the Banking (Special Provisions) Bill (Annex C) contained an additional provision (that the Speaker should not adjourn the House until after the notification of Royal Assent) which meant that it was treated as a Business of the House motion which did not benefit from S.O. No. 83. Back

9   Those of 324 pages or less Back

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