Memorandum by the Clerk of the House of
Commons
INTRODUCTION
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.
OTHER EXPEDITED
LEGISLATION
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.
NOTICE
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.
PROCEDURAL ISSUES
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.
PRACTICAL AND
LOGISTICAL ISSUES
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:
OTHER ISSUES
— 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
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