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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