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

Memorandum by Law Reform Committee of the Bar Council

  1.  This is the response of the Law Reform Committee of the Bar Council to the call for evidence by the Select Committee on the Constitution dated 29 January 2009. The Committee set out a list of numbered questions concerned with emergency legislation, and indicates "those responding to this call….are not necessarily expected to address all these points but instead to focus on those issues on which they have special expertise or about which they are especially concerned". The Law Reform Committee wishes to provide short evidence concerned primarily with the first three questions.

Q1 and Q2  A practical definition of "emergency legislation"—and practical examples

  2.  The Committee considers that the very nature of emergency legislation makes it difficult to produce an all-embracing definition. The need to, and desirability of, abbreviating ordinary parliamentary procedures is likely to arise in a variety of circumstances which are inherently difficult to predict. Rather than attempt a definition, it may be more fruitful to create parliamentary processes which concentrate on ensuring that those promoting legislation on a shortened time-table are required, in a fully effective way, to provide a justification for the treatment of the legislation as "emergency" legislation. Without attempting further definition, the requirement must be the existence of an objective situation "on the ground" which has to be addressed on an emergency basis. The justification must be fully articulated in a way which enables both parliamentarians and the public to understand that the curtailing of ordinary procedures is appropriate, despite the disadvantages that flow from this.

  3.  Two contrasting examples can be given of the way in which this approach can be illustrated.

  4.  First, there is the example of the Banking (Special Provisions) Act 2008 given by the Constitution Committee itself. This legislation was brought in response to the failure of Northern Rock. A case for the existence of an objective situation meriting an "emergency" approach could be readily articulated. The same is probably true of the Evidence (Witness Anonymity) Act 2008, at least in the sense that the state of play in a large number of on-going criminal trials could properly be pointed to the justification for emergency action. This comment should not be taken as endorsement of the principle underlying the legislation, which is highly controversial; nor does it mean that the LRC necessarily considers it appropriate that such important policy decisions were taken on a fore-shortened basis. It is simply an acceptance that with this legislation it was possible to point to the objective situation said to require emergency action.

  5.  In the LRC's view, the same is not the case in all recent examples of curtailed parliamentary procedures. The provisions regulating demonstrations within a designated area were introduced at a relatively late stage in the parliamentary history of the Serious Organised Crime and Terrorism Act 2005 ("SOCTA"). They introduced a complex regime for regulating demonstrations which are now widely considered to be very difficult in practice for the police to operate. The drafting of the provisions led to the litigation brought by Mr Haw (see [2006] QB 780]) in which the Divisional Court considered that the legislation missed its primary target—Mr Haw himself—although this conclusion was reversed by the Court of Appeal. The LRC does not consider that ministers were able to, or did, articulate a case for this novel and complex means of regulating demonstrations being introduced on a near emergency basis.

Q3  Parliamentary Scrutiny and lobbying

  6.  It is plain that the use of severely curtailed parliamentary processes does have a major impact on the quality of parliamentary scrutiny. The provisions of SOCTA for example were very difficult to operate in practice and would undoubtedly have benefited from examination at greater length.

Q6  Renewal and sunset clauses

  7.  In many situations, a "sunset" clause is an appropriate safeguard. The one year time-limit on the Banking (Special Provisions) Act 2008 (s2(8)) provides an example of the successful use of such a provision.

18 March 2009

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