APPENDIX 1: RECOMMENDATIONS TO BE CONTAINED
IN THE CONSTITUTION COMMITTEE'S FORTHCOMING REPORT FAST-TRACK
LEGISLATION: CONSTITUTIONAL IMPLICATIONS AND SAFEGUARDS
163. We continue to affirm our strong support
for pre-legislative scrutiny and our desire to see it used more
routinely. We acknowledge that the opportunities for pre-legislative
scrutiny of fast-track legislation will inevitably be constrained
by the timescale. Nonetheless, we do not believe that such constraints
make pre-legislative scrutiny impossiblethe opportunity
given to some interested parties to consider the Criminal Evidence
(Witness Anonymity) Bill being a case in point. Yet any such scrutiny
has thus far tended to occur on an ad hoc basis. We therefore
urge the Government to put mechanisms in place to ensure that
relevant parliamentary committees and stakeholders are consulted
about and given the opportunity to respond to proposed fast-track
legislation ahead of Second Reading in the House in which the
bill is introduced. This should be possible in all but the most
extreme circumstances.
184. We are not in favour of a certification
requirement along the lines of section 19 of the Human Rights
Act 1998, nor any formal role for the Speakers of the two Houses.
However we agree with the Leader of the House of Lords that it
would be valuable for the Government to provide more information
as to why a piece of legislation should be fast-tracked. The process
by which the Government makes the case for fast-tracking is at
present rather ad hoc. This process needs to be formalised and
strengthened.
185. As such, we recommend that the Minister
responsible for the bill should be required to make an oral statement
to the House of Lords outlining the case for fast-tracking. This
should take place when the bill is introduced to the House in
order to allow a debate, as early as possible on the justification
for fast-tracking the bill, which does not detract from the Second
Reading debate. The details contained in the oral statement should
also be set out in a written memorandum included in the Explanatory
Notes. The parliamentary time allocated for the statement should
not in any way impinge upon the time available for consideration
of the bill.
186. In the light of the evidence we have
received about the potential problems and issues pertaining to
the use of fast-track legislation, we recommend that the Ministerial
Statement should be required to address the following principles:
a) Why is fast-tracking necessary?
b) What is the justification for fast-tracking
each element of the bill?
c) What efforts have been made to ensure the amount
of time made available for parliamentary scrutiny has been maximised?
d) To what extent have interested parties and
outside groups been given an opportunity to influence the policy
proposal?
e) Does the bill include a sunset clause (as well
as any appropriate renewal procedure)? If not, why do the Government
judge that their inclusion is not appropriate? (see para 198)
f) Are mechanisms for effective post-legislative
scrutiny and review in place? If not, why do the Government judge
that their inclusion is not appropriate? (see paras 208-9)
g) Has an assessment been made as to whether existing
legislation is sufficient to deal with any or all of the issues
in question?
h) Have relevant parliamentary committees been
given the opportunity to scrutinise the legislation?
187. We recommend that in its consideration
of whether to allow a bill to be fast-tracked through its legislative
stages, the House should bear in mind whether the Government's
Ministerial Statement justifying fast-tracking has adequately
addressed these principles. We will do this in the course of our
scrutiny of any bill that it is proposed should be fast-tracked.
189. We remind the House that it is open to
any member who is not content with the Government's justification
for the fast-tracking of a bill to seek the opinion of the House
when the motion to suspend Standing Order 47 is moved. If in our
own scrutiny we judge that any of the principles have not been
met, we will recommend that the House does not support the motion
to suspend Standing Order 47.
198. Whilst we acknowledge that there may
be cases when the use of sunset clauses or renewal procedures
is inappropriate, we do not believe that the Government's position
of judging each case on its merits provides a sufficient safeguard.
Where fast-track bills are used, there needs to be an additional
safeguard. We therefore recommend that, in such cases, there should
instead be a presumption in favour of the use of a sunset clause.
By this process, a piece of legislation would expire after a certain
date, unless Parliament chooses either to renew it or to replace
it with a further piece of legislation subject to the normal legislative
process. The Government should set out the proposed terms of the
sunset clause in the Ministerial Statement. In cases where the
Government judge that the use of sunset clauses or renewal procedures
is inappropriate, it should be incumbent upon them to make the
case for their exclusion in the Ministerial Statement.
208. We believe that post-legislative scrutiny
has an important role to play in relation to all legislation,
and take note of the Government's 2008 proposals for post-legislative
scrutiny. In relation to fast-track legislation, post-legislative
review is vital, and we believe that additional safeguards need
to be introduced. We therefore recommend that, in co-ordination
with parliamentary committees, the Government should make the
prompt review of fast-track legislation a priority.
209. Whilst we acknowledge that it may not
always be appropriate to review a piece of legislation quickly,
we believe that there should be a presumption in favour of the
early review of fast-track legislation. We therefore recommend
that any legislation subject to a fast-track parliamentary passage
should be subject to post-legislative review, ideally within one
year, and at most within two years. The Government should set
out the arrangements for review and the case for either a one-
or two-year review period in the Ministerial Statement. In cases
where the Government judge that such an early review would be
inappropriate, it should be incumbent upon the Government to make
their case in the Ministerial Statement.
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