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

Letter from Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

  I am William Nelson Cromwell Professor of Law, Harvard Law School, and write in response to the call for evidence on emergency legislation. I have written several articles on the "political constitution" of emergency powers in both parliamentary and separation of powers systems,[91] and am submitting this evidence solely on my own behalf. I confine my comments to only some of the questions posed by the Committee.

  1.  Is it possible to provide a practical definition of "emergency legislation?" In general, I believe that the answer is, No, for two related reasons. (a) It is in the nature of emergencies that they are unanticipated. One might identify the generic characteristics of particular forms of emergency in advance of the event,[92] but their specific manifestations will almost never fit ex ante definitions precisely. (b) As a result, any ex ante definition of emergency legislation is likely to lead to unproductive controversies over whether the situation at hand is an emergency as defined or, in contrast, whether the situation falls outside the ex ante definition. To succeed, a statutory definition ex ante would have to be exclusive, in the sense that the government could not proceed on an expedited basis unless the statutory definition of "emergency" was met. Then, however, two possibilities arise. (i) The government might contend, and its opponents might dispute, that the circumstances fit the statutory definition. Such arguments will almost certainly be unproductive and will divert attention from what should be at the heart of the discussion - whether legislation is urgently required. (ii) The government might concede that the circumstances do not fit the statutory definition but insist that expedited consideration is needed because the circumstances, though unanticipated by the statute's drafters, require immediate action. If that position is defensible - and it may well be, or at least the government's supporters will so regard it - either the statute defining emergencies will be honored, thereby obstructing the expedited consideration of legislation the government believes to be urgently needed, or it will be disregarded, thereby bringing the statutory definition into disrepute.

    Put another way, ex ante definitions are likely not to be "practical."

  2.  The best alternative, in my judgment, is to allow the government to seek expedited consideration of legislation without restriction as to the circumstances under which it can do to, but to require special procedures when the government so chooses. Designing such procedures is outside my area of expertise, but the basic features would include transparency, a timetable that though short is not unreasonably so given the nature of the proposed legislation (and in particular given the extent to which reasonable questions could be raised about the legislation's compatibility with fundamental rights), and almost certainly some provision for subsequent parliamentary review and mandatory consideration of revisions on a slower timetable.

30 April 2009

91   The Political Constitution of Emergency Powers: Some Conceptual Issues, in Emergencies and the Limits of Legality (Victor V. Ramraj ed. 2008); The Political Constitution of Emergency Powers: Some Lessons from Hamdan, 91 Minnesota Law Review 1451 (2007); The Political Constitution of Emergency Powers: Parliamentary and Separation-of-Powers Regulation, 3 International Journal of Law in Context 275 (2008). Back

92   Categories such as "economic," "natural disasters," "public health emergencies whatever the cause," and "terrorist threats" have been used in legislation elsewhere. Back

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