APPENDIX: GOVERNMENT RESPONSE |
Letter from Baroness Royall of Blaisdon to the Chairman
The Government welcomes the Constitution Committee's
report on Fast-Track Legislation: Constitutional Implications
and Safeguards. This response seeks to address the committee's
recommendations in turn.
Case Studies of fast-track primary legislation
These case studies of fast-track legislation illustrate
the concerns expressed by many of our witnesses in terms of the
problems and issues that the fast-tracking of legislation raises.
Of course, many of these concerns are a matter of debatewas
the case for fast-tracking made? Could more time have been provided
even if the case was made? Did the legislation turn out to be
effective? Was sufficient attention given to potential safeguards,
and did they work in practice? The answers may differ in relation
to each of these case studies, and indeed in relation to any piece
of legislation where the fast-tracking procedure was utilised.
Yet the fact that each one of these cases has prompted debate,
even in those examples where the argument in favour of fast-tracking
was generally accepted, makes a strong case for considering how
the fast-track procedure can be improved and better scrutinised
The Government welcomes the committee's report on
Fast-Track Legislation: Constitutional Implications and Safeguards
and this response seeks to address the committee's recommendations
in turn. The Government welcomes the Committee's adoption of the
term 'fast-track legislation' (rather than 'emergency legislation')
and believes it is helpful to the debate.
The tabling of late amendments to non-fast-track
primary legislation is a distinct issue from fast-track legislation.
Given that the central focus of our inquiry is an analysis of
fast-track legislation, we have only been able to touch on the
late tabling of amendments. Yet, as the Clerk of the Parliaments
reminded us, it may amount to the same thing in terms of its effect.
We are concerned at the number of examples of this phenomenon
that have been brought to our attention during the course of this
inquiry. Whilst noting the Deputy Leader of the House of Commons'
assertions that "we very much dislike doing it", and
that there are occasions on which it is necessary to bring forward
such amendments, the late tabling of amendments inevitably means
that there is less time available to scrutinise them. The Government
should redouble their efforts to minimise the number of late amendments
they table (Paragraph 106).
As the Committee has stated, the Government does
not like to table late amendments to Bills. We recognise that
amendments tabled to Bills late in the Parliamentary process can
receive less detailed scrutiny. On many occasions, late amendments
are tabled by the Government in response to the scrutiny process
and arguments put forward in debate during earlier stages of a
bill's passage and are welcomed as concessions. However, the Government
accepts the Committee's recommendation and will continue to pursue
efforts to limit the number of late amendments tabled that do
not fall into this category.
We do not accept the use of the term "purdah"
by the Secretary State for Northern Ireland in relation to elections
to the European Parliament. We urge the Government to clarify
their interpretation of the meaning of the term in their response
to this report (Paragraph 127).
The term 'purdah' is most commonly used in reference
to the period between the announcement of a general election and
the day on which the election is held. However, the period before
any election, including elections to the European Parliament,
must be handled sensitively by Government in order to avoid criticism
that official resources are being used to further party political
interests. The Cabinet Office produced guidance on making announcements
that could influence the outcome of the European election in the
period between 14 May 2009 and the election on 4 June. The Northern
Ireland Act 2009 was an important piece of legislation that gave
effect to an agreement between the First Minister and deputy First
Minister. It is certainly conceivable that introducing or debating
of this legislation during the European election campaign could
have had an effect on the outcome of that election.
As Sir Jonathan Phillips stated when he appeared
before the Committee, elections in Northern Ireland have tended
to be divisive, so at the time the legislation was introduced
it was important to allow a period between the legislation receiving
Royal Assent and the start of the election campaign. This period
was important because it would have been necessary for the Assembly
to pass a resolution on the devolution of policing and justice
before the European election if significant progress were to have
been made before the summer.
It was for these reasons that the Secretary of State
for Northern Ireland used the term "purdah". It was
meant in a more general sense than when used in the context of
a general election.
Northern Ireland Legislation
Whilst we acknowledge that it has been necessary
to fast-track the process of a number of pieces of Northern Ireland
legislation in recent years in order to maintain the momentum
of the peace process, fast-tracking should not be 'the norm' in
the future in relation to Northern Ireland legislation. We welcome
the Deputy Leader of the House of Commons' assertion that it is
the Government's wish to treat Northern Ireland legislation normally,
and we join with the Leader of the House of Lords in her express
hope that the Northern Ireland Act 2009 was "the last piece
in the emergency jigsaw" (Paragraph 128).
The Government is grateful that the Committee understands
the rationale for fast-tracking Northern Ireland legislation.
Whilst expediting the passage of legislation has been essential
at a number of points in the political process, the Government
agrees that this must always be regarded an exceptional approach
and certainly not become the norm.
Whilst accepting that in a very limited number of
circumstances there may be grounds for seeking to fast-track parliamentary
procedure of draft affirmative instruments, we take this opportunity
to remind the Government of the importance of executive self-restraint
The Government accepts the recommendation that it
is important to show self-restraint when seeking to fast-track
parliamentary procedures relating to draft affirmative instruments.
We support the clear Parliamentary rules and guidelines for Departments
when laying statutory instruments, for which Leaders of both Houses
can hold Departments to account. However, on occasion it will
remain necessary to expedite secondary legislation. This is usually
done with the co-operation of the opposition parties and the relevant
scrutiny Committees, thus allowing scrutiny of the decision to
Whilst we note the arguments made in favour of such
proposals as the publication of formal legal advice that the government
have received, a written constitution, or a Business Committee
or Legislation Steering Committee, there are, of course, also
arguments against each of these. In addition, the implications
of such reforms go far beyond the remit of this inquiry (Paragraph
The Government recognises the need to keep the procedures
of the House under review and welcomes the Committee's consideration
of this topic in light of the evidence; and we recognise that
it is a matter for the House of Lords to determine its own procedures.
In the House of Commons, we await the outcome of
the Procedure Committee inquiry and that of the Committee on Reform
of the House which are concerned with the timetabling of business
in that House. If recommendations from those reports are implemented,
there might be issues for the Lords to consider.
Improvements to the pre-legislative scrutiny process
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
Fast-tracked bills, by their nature, often require
flexibility in handling depending on the circumstances of their
introduction. The pre-legislative scrutiny process is one that
the Government is committed to, and we are pleased that the Committee
recognises its value. We will consider how we can use and improve
the pre legislative scrutiny process with future fast tracked-legislation,
on a case by case basis. We recognise the Committee's concern
around the different levels of scrutiny that different fast-tracked
legislation receives. However, we believe it would be unhelpful
to impose a fixed level of pre-legislative scrutiny on fast-tracked
No. 2 bill procedure
Whilst we note that the No. 2 bill procedure has
been used on occasions, most recently in the case of the Banking
Bill in 2008, it appears to us that in general its drawbacks outweigh
its advantages. We do not therefore recommend any increase in
the use of the No. 2 bill procedure in relation to fast-track
legislation (Paragraph 170).
We do not recommend that a piece of fast-track legislation
should pass from the Commons to the Lords after Second Reading,
before returning after detailed scrutiny in the Lords has been
completed (Paragraph 173).
As the Committee notes, the No.2 Bill procedure is
rarely used. Before it was last used in the case of the Banking
Bill 2008, the previous occasion was in the 1970s. The Government
accepts that it should not seek to increase the use of the No.2
Bill procedure. However, there may be rare occasions where its
use may provide the opportunity for additional scrutiny time in
the second House during a fast-track process.
A Ministerial Statement or certification justifying
the use of the fast-track procedure
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.
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 (Paragraphs 184 & 185).
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
(d) To what extent have interested parties and
outside groups been given an opportunity to influence the policy
(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?
(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?
(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? (Paragraph
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 (Paragraph 187).
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 (Paragraph 189).
The Government firmly believes that all members of
both Houses are entitled to a full explanation of why a piece
of legislation is being proposed for fast tracking; and we would
expect to be held account for its timetabling. Ministers remain
prepared to justify the need for any expedition to the House,
including covering those issues set out in the Committee's Report.
As the Committee notes, it is open to any member
to speak to any motion to suspend Standing Order 47 and to test
the opinion of the House, although Standing Order 47 would only
be suspended where the timetable would require two stages to be
taken in one day.
Sunset clauses or renewal procedures
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 (Paragraph
The Government agrees with the Committee that there
are cases where the use of sunset clauses is inappropriate. Whilst
on occasion a sunset or renewal clause is deemed necessary, the
Government believes this must be approached on a case-by-case
basis. The uniform inclusion of a sunset clause also has the potential
to force Parliament to legislate to a timescale that may not be
appropriate to the issues involved. The Government would expect
to explain whether a sunset clause is appropriate, alongside the
justification for fast-tracking a Bill, in line with the list
of principles set out in the Committee's Report.
Improved post-legislative review
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 (Paragraph 208).
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 oneor twoyear 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 (Paragraph 209).
The Government agrees with the committee that post-legislative
scrutiny has an important role to play in legislation, as set
out in our 2008 proposals. The issue of timing is crucial: there
is no point trying to conduct post-legislative scrutiny until
the impact of an Act can be well understood. In many cases the
full implications of an Act will not be understood one year after
Royal Assent. For example, the Independent Parliamentary Standards
Authority (IPSA), will only have been fully operational for 3
months at the first anniversary of the Parliamentary Standards
Act 2009 receiving Royal Assent.
However, the Government would like to re-affirm its
commitment to post-legislative scrutiny and in as many cases as
possible conduct post legislative scrutiny as early as possible
in the current 3-5 year window.