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Fast-Track Legislation: Constitutional Implications and Safeguards

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Fast-Track Legislation: Constitutional Implications and Safeguards HOUSE OF LORDS Select Committee on the Constitution 15th Report of Session 2008–09 Fast-track Legislation: Constitutional Implications and Safeguards Volume II: Evidence Ordered to be printed 17 June 2009 and published 10 July 2009 Published by the Authority of the House of Lords London : The Stationery Office Limited £price HL Paper 116–II CONTENTS Page Oral Evidence Dr Ruth Fox, Director, Parliament and Government Programme, Hansard Society and Sir John Chilcot, Better Government Initiative Written Evidence, Better Government Initiative 1 Written Evidence, Hansard Society 4 Oral Evidence, 25 February 2009 8 Supplementary Evidence, Hansard Society 23 Lord Baker of Dorking Oral Evidence, 4 March 2009 27 Dr Eric Metcalfe, Director of Human Rights Policy, JUSTICE, and Ms Isabella Sankey, Policy Director, Liberty Written Evidence, JUSTICE 40 Written Evidence, Liberty 48 Oral Evidence, 11 March 2009 53 Supplementary Evidence, JUSTICE 66 Sir Jonathan Phillips, Permanent Secretary, and Sir Joseph Pilling, former Permanent Secretary, Northern Ireland Office Written Evidence 68 Oral Evidence, 18 March 2009 74 Professor Brice Dickson, Queen’s University Belfast Written Evidence 84 Oral Evidence, 18 March 2009 85 Professor Anthony Bradley and Mr Steven Durno, Legal Policy Adviser, The Law Society Written Evidence, Anthony Bradley 90 Written Evidence, The Law Society of England and Wales 96 Oral Evidence, 25 March 2009 98 Professor John McEldowney, University of Warwick and Professor David Miers, University of Cardiff Written Evidence 111 Oral Evidence, 1 April 2009 115 Baroness Royall of Blaisdon, Leader of the House of Lords and Chris Bryant MP, Deputy Leader of the House of Commons Written Evidence, Leader of the House of Commons and Leader of the House of Lords 127 Written Evidence, Department of Health 130 Written Evidence, Alan Campbell MP, Parliamentary Under Secretary of State, Home Office 132 Oral Evidence, 29 April 2009 133 Written Evidence Clerk of the House of Commons 146 Clerk of the Parliaments 159 Law Reform Committee of the Bar Council 167 James Lee, University of Birmingham 168 Mark Tushnet, Harvard University 177 Professor Clive Walker, University of Leeds 178 NOTE: The Report of the Committee is published in Volume I (HL Paper 116-I) The Evidence of the Committee is published in Volume II (HL Paper 116-I) Processed: 07-07-2009 20:20:40 Page Layout: LOENEW[ex 1] PPSysB Job: 427327 Unit: PAG2 Minutes of Evidence TAKEN BEFORE THE CONSTITUTION COMMITTEE WEDNESDAY 25 FEBRUARY 2009 Present Goodlad, L (Chairman) Peston, L Lyell of Markyate, L Rodgers of Quarry Bank, L Morris of Aberavon, L Rowlands, L Norton of Louth, L Shaw of Northstead, L Pannick, L Woolf, L Memorandum by the Better Government Initiative, Sir John Chilcot, KCB On 29 January, 2009, the Committee called for evidence on the constitutional issues that may arise when there is resort to emergency legislation. Several Better Government Initiative (BGI) members—as former civil servants—have had varied experience of the preparation and use of such legislation from which this Note draws. Our interest in this matter stems from a wider interest in the better preparation of legislation which we believe essential to better government. To achieve those ends we argue there are key principles which should be consistently observed. We set these down before going on to consider their application to emergency legislation. There should be: 1. An early broad statement, which may come after wide consultation, of the Government’s intentions, enabling both public and Parliament to make observations on, and so contribute to, the final policy choice. In a democracy the electorate, not only Parliament, should be able to understand the aims that any particular policy proposed by the Government seeks to achieve, and have a broad indication of the costs and benefits associated with it, and its relationship to the underlying philosophy on which the Government was elected. If the policy fails to achieve its aims, or the costs are significantly greater or the benefits markedly less, public and Parliament should have suYcient information available to judge whether the failures are due to the inadequacies of the policy or to unforeseen, even unforeseeable, events. 2. A definitive statement at the time Government decides on a final policy which will allow MPs and interested parties to understand what the bill is expected to achieve, and how, enabling an eVective review to take place in the future. Parliamentarians, interested parties and professional groups need to have suYcient understanding of any proposed legislation or policy, and why it was chosen in preference to other means, with specific information (including, where necessary, an impact assessment) about its eVect on diVerent groups (social, local or economic) so that they can respond to specific problems the bill raises. Also required is information about the means by which that policy will be brought into eVect and how its eVectiveness can be judged. Any general philosophy outlined at an earlier stage needs to be refined into the criteria which will govern any secondary or regulatory legislation or individual Ministerial decisions. 3. Bills should be complete on introduction, and, while some amendments will usually be necessary, the likelihood of them being required to take the bill through should have been considered at an early stage, and not introduced at the last minute. Whether or not a draft bill was published there may have been policy changes since the second stage. Any such changes should be highlighted and justified. But what is important at this stage is that the legislation should have been suYciently prepared that the Government will not need to introduce substantial amendments or new clauses to deal with foreseeable events. It should have considered the likely objections to the legislation and, only if significant political diYculties arise, have to accept major amendments. But it is almost inevitable that, with complex legislation or policies which can aVect financial, environmental, and social issues, the government will not have foreseen all issues and will need to propose or accept some amendments which impact on the purposes or implementation of the legislation. Documentation of the Stage 2 type, explaining and justifying such changes, should be produced in suYcient time for them to be considered before the legislation is passed. Processed: 07-07-2009 20:20:40 Page Layout: LOENEW [E] PPSysB Job: 427327 Unit: PAG2 2 emergency legislation, constitution committee: evidence 4. SuYcient information to enable secondary legislation to be fully considered. We maintain that primary legislation should be restricted to the essential features of a policy, leaving detail and implementation to secondary legislation. However, an understanding, at the time the primary legislation is considered, is needed of the principles or criteria which will underlie the secondary legislation. Secondary legislation nearly always will be necessary for the implementation of policy, if the above principle governing primary legislation is observed. It is inevitable that this legislation will not be able to command the same attention and time in either house as primary legislation. There is, therefore, a real danger that it may pass without adequate scrutiny and be shown, in the long run, to be useless. It is crucial, therefore, that the criteria which govern it should have been made clear in Stage 2, and that full information is given early enough on how it meets those criteria; and how it will work in practice. It is at this stage that many lobbyists and professional bodies who have first hand knowledge of problems will wish to contribute, and whose views may well be important for successful implementation. 5. The fifth stage should review the success of the legislation in achieving its policy objectives. Both the public and Parliament need to be enabled to make an assessment of how successful the policy has proved to be in the light of experience. Such an assessment is likely to be partisan, and, therefore, Parliament is the only place where this judgement will be made. But to have any credibility it must rely on documentation about objectives, means and alternatives put forward in earlier stages. Ideally, the assessment should be based on some form of auditing of eVects and should be capable of being written in terms which the public can understand. The challenge is how to follow or adapt these principles to emergency legislation. Broadly Parliament may be faced with two distinct types of request for emergency legislation. One is the contingent preparation and passing of laws enabling order making powers only to be brought into force if the emergency were to arise. An example is Part 2 of the Civil Contingencies Act, 2004 allowing for urgent order making powers to be used in a major emergency which, ex hypothesi, arises unexpectedly and requires action by Government in the interests of national and public security (such as requisitioning plant and machinery) when time is of the essence. The 2004 Act replaced earlier legislation including the Emergency Powers Act 1920. The 2004 Act requires the Queen to signify that there is an emergency, which is defined as “threat of serious damage to the welfare or environment of a region”. It is characteristic of such legislation that, if used, then Parliament must retrospectively approve its use. In the case of the 2004 Act the orders must be approved within seven days by Parliament. The other type of circumstance is where an emergency situation emerges and, in the light of experience in attempting to contain the situation, Government comes to believe that additional legislation will be needed for the duration of the emergency, and goes to Parliament with an “emergency provisions” Bill. An example was the Northern Ireland (Emergency Provisions) Act 1973 and its successors. It is characteristic of such legislation that it has a sunset clause and Parliament therefore has the opportunity to vote on whether the situation still requires its renewal.
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