Motion to Take Note
My Lords, this is a welcome opportunity to debate the 15th report of the current Session by your Lordships’ Select Committee on the Constitution, which is entitled Fast-track Legislation: Constitutional Implications and Safeguards. I thank the Leader of the House for her role in arranging the debate, and for her presence this afternoon.
The report of your Lordships’ committee was published on 7 July and the Government response issued on 3 November—sadly, almost two months late. Consequently, it could not be considered at the most recent meeting of your Lordships’ committee. The committee is disappointed at the lateness of the Government’s response, but grateful for having received it.
As noble Lords are aware, the committee reports to the House on, among other matters, constitutional aspects of the legislative process. In the report of July 2008 on the Criminal Evidence (Witness Anonymity) Bill, the committee noted that the Bill was the third in a short time in which the parliamentary passage had been expedited—Parliament’s usual procedures set aside, circumvented and avoided—following similar treatment for the Northern Ireland (St Andrews Agreement) Bill in March 2007 and the Banking (Special Provisions) Bill in February 2008.
The committee’s decision to inquire into the constitutional issues that may arise where there is expedited passage of legislation through Parliament was animated by a wish to affirm the importance of the legislative process, to uphold it and, if possible, to improve it. Concerns about arcane parliamentary procedure were absent from our minds.
During the course of the inquiry, the report of which we are now debating, the Northern Ireland Bill and Parliamentary Standards Bill were both fast-tracked. I recollect Tony Benn saying in the other place—I am sure that he will forgive me for paraphrasing his words, which I cannot recollect exactly—that when the Front Benches agree something in private, that is the time at which Parliament should be at its most vigilant.
Surprisingly, little if any attention, either academic or parliamentary, has previously been addressed to the practice of fast-tracking legislation. The noble Baroness the Leader of the House has generously described your Lordships’ committee’s report as an invaluable stocktaking. The committee’s decision to use the expression “fast-track legislation”, rather than “emergency legislation”, was carefully considered and the reasons rehearsed in paragraphs 10 to 12 of the report. There is a very clear distinction between legislation necessitated by an emergency and the truncation of Parliament’s procedures in pursuit of fast-track legislation for other reasons, including the convenience of the Government.
The committee is obliged to all who gave evidence. Both Houses of Parliament are responsible for the legislative process. Chris Bryant, the then Deputy Leader of the other place, was most generous in sharing his perceptions with us, as was the Clerk of the House of Commons in written evidence. The committee and, I believe, your Lordships owe particular gratitude to Professor Andrew Le Sueur of London University, who was the specialist adviser to the committee for the report and also the legal adviser to the committee from 2005 until a few months ago. His advice and wisdom have been invaluable.
In paragraph 16 of the report before your Lordships, the committee has recommended five principles which in our view should be applied to the scrutiny of fast-track legislation: first, that effective parliamentary scrutiny is ensured; secondly, that the quality of legislation is maintained and improved; thirdly, that affected persons and bodies are allowed the opportunity to influence the legislative process; fourthly, that the legislation is a proportionate, justified and appropriate response to the matters which it seeks to address, and that constitutional rights and principles are not jeopardised; and, fifthly, that the transparency of policy-making within government and in the legislative process is maintained.
The committee made a number of recommendations, of which I shall very briefly remind your Lordships. The committee’s view was that fast-tracking should occur only in exceptional circumstances. Our principal recommendations are contained in Chapter 6 of the report and are as follows. First, where fast-tracking is proposed, a Minister should make an Oral Statement to your Lordships’ House outlining the reasons for the proposed fast-tracking and the reasons should be included in the written Explanatory Notes to the Bill. The reasons given for fast-tracking should be distinct from those for the policy pursued in the Bill. The Statement, which should be debated by your Lordships’ House, should explain the Government’s reason for proposing fast-tracking, what efforts have been made to allow the maximum time for parliamentary scrutiny, how stakeholders have been given the opportunity to influence the policies proposed, whether the Bill includes a sunset clause, whether post-legislative scrutiny is guaranteed, whether an assessment has been made of whether existing legislation covers the issues addressed by the Bill, and whether the relevant parliamentary committees in both Houses have been given the opportunity to scrutinise the legislation.
Your Lordships’ committee recommends that the Government should provide for the pre-legislative scrutiny of fast-track legislation by consulting the relevant parliamentary committees and stakeholders prior to the first Second Reading of the Bill, in whichever House it occurs. We further recommend that there should be a presumption that fast-track legislation will receive early post-legislative scrutiny and be subject to a sunset clause, the terms of which should be explained in the ministerial Statement to this House.
Noble Lords are aware that our Standing Order 47, which precludes more than one stage of a Bill being considered on one day, can be debated and voted on in the event of the Government seeking to suspend the order. The committee recommends that if the principles and recommendations enunciated in the report which I have summarised are not met, your Lordships should decline to support a Motion to suspend Standing Order 47.
It is my belief, and I think that of most of your Lordships, that very few people in this country want what the late Lord Hailsham called “an elective dictatorship”. I hope that the noble Baroness the Leader of the House will be able to tell your Lordships that the Government accept the committee’s recommendations. I beg to move.
My Lords, it is a great pleasure to follow the noble Lord, Lord Goodlad. It has also been my pleasure to serve on the committee. As my time on it will come to an end at the end of this Session, I particularly thank the noble Lord for the pleasure of serving under him as chairman. I am also grateful to have had the parliamentary pleasure of being on the committee: it has done great work in servicing the House and in advising it on Bills in particular but also, of course, on general issues such as this.
I, like, I suppose, everyone else in the House, was brought up on the basic principle that the parliamentary scrutiny of legislation was fundamental to Parliament’s purpose and task. It was a parliamentary duty. Indeed, Locke, the great late-17th/early- 18th century political philosopher, called it a sacred duty. Blackstone, the 18th century constitutionalist who usually went over the top, described Parliament as a sovereign and uncontrollable authority in making, confirming, enlarging, restraining, repealing, reviving and expounding laws, concerning matters of all possible denominations, it being,
“the place where that absolute, despotic power … is entrusted by the constitution of these kingdoms”.
I think that that is rather over the top. In fact, during the hours and hours that I spent sitting on Benches in the other place trying both to participate in the legislative process and to listen to it, I never felt that absolute despotic power coursing through my veins, nor did I ever feel that Governments were quaking at the threat of such a despotic power. Nevertheless, throughout my parliamentary career I sensed that Governments did feel, and Parliament managed to convey to Governments, that they had to work for their legislation. They had to spend time getting the Bills through. They had to sweat for their legislation, if need be. That was the unspoken convention: you had to work your time and justify at some length and even through parliamentary attrition the case for a Bill.
It was amazing to come to this place and find that that spirit is still very much alive and that my noble friends on the Front Bench have indeed to work hard and sweat to get Bills through. We have just passed a Bill of 262 clauses and 16 schedules, carried through the House by Ministers with scrutiny from all sides of the House, unregulated, uncontrolled by any form of parliamentary restriction or timetable.
It is true that in the other place, since the 1880s, Governments have had the power to apply to limit or curtail the parliamentary proceedings on legislation through the guillotine. Even then, if one looks at the record of that guillotine procedure, one sees that it was traditionally used very sparingly. I was astonished to find, for example, that in the whole of the great Parliament of 1945 to 1950, which passed some of the most radical legislation through the House of any time, only three Bills were guillotined. Throughout the 1950s and early 1960s, the average would be one or two Bills a Session. In my first Parliament in 1966-70, the proceedings on only five Bills were curtailed by guillotine.
In the 1970s and 1980s, Governments resorted more and more to the guillotine procedure, but even then I sensed—others in the House may testify to this—that there was an unwritten convention that Ministers had to do time before they could come to the House to get the guillotine procedure. They had to do time in Committee. I think that the going rate was about 80 hours a Bill in Committee. It was only then that you could honourably ask the House for a guillotine.
So there has been a great deal of self-restraint even when, as in the other place, the House had power to limit debate. Now, everything has been changed by the introduction of programme Motions, which are newfangled things as far as I am concerned, because I was not in the House when they were introduced properly. Nevertheless, there has been a long-standing tradition of genuine acceptance of the fact that there must be constraint—even though Governments obviously had the right to get their legislation through, they had to do it with considerable care and had to work to achieve it.
I therefore think that fast-tracking is of particular concern to this House because, whereas there is no guillotine procedure on Bills in this House, when the Government seek to fast track, they can fast track in both Houses, although, as our report demonstrates, there were cases when Bills were fast tracked in the other House but not here. The infamous Dangerous Dogs Act was a case in point. Nevertheless, the Government have power through fast-tracking to constrain debates and scrutiny of legislation in this House. Therefore, this House should be particularly squeamish and vigilant in deciding how or when it should approve such a process. A compelling case must be made for fast-tracking in this House, given our history of refusing to have limitations on our legislative processes and debates.
That is why central and key to the committee's recommendations is that the case for fast-tracking must be scrutinised by this House—not the Bill itself, but the case for fast-tracking. As the noble Lord, Lord Goodlad, spelt out, our central proposal and the key to the report is that an Oral Statement be made when the Bill is introduced—not at Second Reading, but when the Bill is introduced—spelling out the Government's case for such action being taken. It is fundamental to our proposals that the Government can be scrutinised on the case for fast-tracking. We state that we do not believe that it should be part of any Second Reading debate. Traditionally, Ministers have made the case during a Second Reading speech, but we think that that should be separated from the case for fast-tracking itself. An Oral Statement of the kind mentioned by the noble Lord is central to our report.
The eight tests in paragraph 186—the noble Lord, Lord Goodlad, spelt them out, so I do not need to repeat them—should be the litmus test by which the House can judge whether the Government have made the case for fast-tracking. As that is central to our recommendations, I ask my noble friend to clarify the Government's response to it. The Government's response states:
“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 to 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”.
Does my noble friend accept what we are asking from the Government: the acceptance of the principle of a procedure by which an Oral Statement is made before the House at the time of First Reading? The Government's response states that we are entitled to a full explanation. How will that explanation be delivered? Our recommendation that that explanation is delivered by an Oral Statement is central to our report. We hope that the Government will respond positively.
Most of the Government's responses are positive and sympathetic to our report, but I should like my noble friend to clarify that. What is the means by which a full explanation will be given for why a Bill is proposed for fast-tracking? How will that be brought to this House? Does she accept, as I dearly hope she will, that it should be in the form of the Statement that our committee recommends?
I briefly comment on Northern Ireland, on which we dwelt for some time, and, in particular, on the Bill that came before the House when we were dealing with the issue, which did not have all-party support and where Front Benches, especially those representing Northern Ireland, did not accept or agree to it. I think that the phrase was used by Kate Hoey in the other place: now there is normalcy in Northern Ireland, can we have legislative normalcy too? Can my noble friend confirm that it is the fervent desire of the Government that now there is normalcy, there will be normalcy in the legislative process when Bills concerning Northern Ireland are brought before the House?
Finally, I turn to post-legislative scrutiny. It came as a great surprise to us that, despite hearing from all our special witnesses, almost no work or research has been done on the effectiveness, workability and quality of fast-track legislation. We looked at one or two examples, but we did not have the opportunity or the capacity to decide whether fast-track legislation is producing good legislation or whether it is, as many witnesses said but could not confirm, producing potentially bad legislation—unworkable or redundant legislation. We could not find that out. Therefore, one of our strongest recommendations is that there be post-legislative scrutiny of Bills passed by the fast-tracking process, so that from now on, we—the House and Parliament—can, when we agree to a fast-track piece of legislation, track whether it subsequently does what it was claimed it was going to do and proves to be effective, or whether the haste of pushing it through has meant that defects and difficulties arise. Can my noble friend confirm that, as the Government’s reply suggests, they are in favour of scrutiny after one year or two years? The principle that all fast-track legislation should be the subject of post-legislative scrutiny is extremely important.
I believe in the safeguards that this report offers on fast-track legislation. In the circumstances we know there will be in future, when Governments will seek the power to fast-track legislation, if we have safeguards of this kind, at least we will know that we will still be able to fulfil the sacred duty of effectively scrutinising legislation.
My Lords, I am very happy to follow the noble Lord, Lord Rowlands, and agree with his last point. I thank my noble friend Lord Goodlad for his outstanding exposition of what our committee has been setting out and for the clear principles that he has laid down.
I have an awful feeling that I am expressing pious hopes. We have been here before. Fast-track legislation in one form or another has found its place more often in recent years, and I do not talk about just the past 12 years. There was a certain amount of it in the years before, and there is no profit in going tit-for-tat about in which years there was more. However, we have to be extremely careful about it.
It is ironic that in the middle of our inquiry, there were two pieces of fast-tracked legislation. One was the Northern Ireland Bill 2009, for which one had some sympathy, as there has been continuing difficulty in the unfolding of the peace process. Like the Leader of the House, I hope that it is the last piece in the jigsaw and that, as the noble Lord, Lord Rowlands, said, normality may be reintroduced to the Northern Ireland legislative process. However, I was worried about the Parliamentary Standards Bill. My noble friend Lord Goodlad put his finger on it when he quoted Tony Benn saying that when the Front Benches agree, one should be particularly vigilant. In the Parliamentary Standards Bill—about which I made some suggestions that did not altogether find favour, but which received a good deal of sympathy in some areas of the House—we stood parliamentary procedure on its head. It was almost like Alice in Wonderland, or perhaps it is Through the Looking-Glass, where there is execution first and trial and verdict later.
We rushed through the legislation, and one can understand the political—or perhaps the press—pressures that caused that, but when the process had gone through both Houses of Parliament in a few weeks, we moved to a position where Sir Christopher Kelly took some months—he has been fairly quick—and it now passes to the Independent Parliamentary Standards Authority and Sir Ian Kennedy. We are told that this further process with, quite rightly, consultation and so on will take many more months and will probably carry us through the election. The right way round was for us to have deliberated longer and more carefully because for all the obloquy and opprobrium that Parliament has partly brought upon itself and partly had heaped upon it, Members of both Houses know a great deal about this problem, and it is right that they should have had an opportunity to express their views and have them taken into account. One hopes that they will be taken into account in the consultation process, but that is not the same as the scrutiny that can be provided in the Chamber of this House and in the other place.
Fast-track legislation is not unique in raising problems. There has been a growing problem in all legislation in recent times. I go back, but I think it has been a growing problem in the past 10, 12 or 15 years; certainly the past 10 or 12, but I hope that is not too party-political. One has seen that in the other place many Bills have been significantly truncated. There just has not been time, particularly for their Report stages to be properly completed. Bills have come to this House with quite large portions that have not been properly debated on Report. I am full of admiration for the scrutiny of noble Lords, and this House has managed to repair a good deal. There are some wonderful examples, such as the Bill that has just passed, where there has been a constructive process.
I am a little cautious about post-legislative scrutiny. The points made about it on fast-track Bills are well made. I sat on the rather hasty pre-legislative scrutiny of the bribery Bill that will, no doubt, come before this House in the next Session, although I wonder whether it will have time to get through. Although there are some advantages to pre-legislative scrutiny and post-legislative scrutiny, the key point is legislative scrutiny in Committee, whether on the Floor of the House or in a committee room, on Report and at each stage of each Bill. Legislative scrutiny, when the whole House brings its mind to bear, is the real constitutional safeguard. I hope that that will always be kept in mind.
Finally, I strongly support there being a presumption that fast-track Bills should have sunset clauses. No doubt the Minister will say a word or two about this. The Government were cautious in their response about this and seemed to say that it should be decided on a case-by-case basis, but I hope that she will be able to go a bit further and say that the normal presumption will be to have a sunset clause unless there is a powerful reason not to have one.
My Lords, my term of service on the Constitution Committee is also coming to an end. I have found it exceedingly challenging and have enjoyed it enormously. I, too, want to thank the noble Lord, Lord Goodlad, for his splendid chairmanship, from start to finish. As a Member of the Committee, I obviously welcome the inquiry into the procedure on fast-track legislation, as I was a party to it. With regard to this investigation and others, I would also like to thank our legal adviser Professor Le Sueur. We could not have been better served. I believe our report is a measured report that has elicited a measured response from the Government. I thank the Government and the Leader of the House for that.
We tried to examine our practice and procedures on fast-tracking. As parliamentarians, we are all wary of fast-tracking, of not carrying out the usual scrutiny of any legislation. I shall give one example of why I am wary from my experience in the only piece of fast-tracked legislation in which I was involved. It was the Criminal Justice (Terrorism and Conspiracy) Act 1998, which followed the appalling tragedy in Omagh. The driving force was that something had to be done and had to be seen to be done. That syndrome is behind so much fast-track legislation and was not unique to that Bill. Let me remind the House that we were all summoned back in the middle of August. I attended the Cabinet Committee, which had also been hastily summoned, to consider the Bill that we would shortly put before the House.
Two questions arise about the Bill. The first question relates to the amount of time that Parliament had to consider it. The House of Commons sat right through the night. I sat next to the Home Secretary, and we heard every point being raised and every point being admirably replied to. However, considering a Bill on a very warm night in August, with just two days to go through the whole of it, certainly had its disadvantages, to put it mildly. The second question is more important; it concerned the time that the Government had, since it was felt that something had to be seen to be done, to prepare a sensible Bill. Much of the material, thank God, must have been on the stocks beforehand.
I became aware in the course of the Commons’ deliberations that there was something wrong about a principle whereby a person could be convicted of being a member of a proscribed organisation on the word of a senior police officer. I cannot recall whether that point was actually debated. It probably was not—there was no time in those two days to consult more widely—but it soon became apparent to me in later conversations with those who were responsible for the law in Northern Ireland that it was extremely unlikely that that provision would ever be used.
I was the Attorney-General both for Northern Ireland and for England and Wales at the time. In any conversation that I had after the Bill had been passed, judges and others made it clear to me that if the opinion was tendered before a jury, or in those days more likely a Diplock court, the judge—any judge—would ask whether there was any supporting evidence. Because of the obvious difficulty of disclosing intelligence, that additional supporting evidence could not be given. As a result, this provision has never been used. It has been considered for use, but no prosecutor in Northern Ireland ever brought a case before a court on this evidence. No harm was done, but it is an example of rushed legislation and, in the event, of ineffective legislation that cannot be used. Those are the inherent and obvious dangers. Those are my views of what I was involved in. I know what happened, and I wish in retrospect that I had thought about this point in the few hours that we had to consider the Bill and to explain it to the House.
The other point that I wanted to make has already been made by the noble Lords, Lord Goodlad and Lord Rowlands. As they said, the report’s key recommendation is that the Minister responsible for a Bill should be required to make an Oral Statement to this House outlining the case for fast-tracking. We recommend that the details of that Statement should also be set out in a Written Statement included in the Explanatory Memorandum. The parliamentary time allocated for the Statement should in no way impinge on the time available for considering it. We recommend a stand-alone Statement. That is fundamental to our conclusions.
We set out eight principles, which I will not go over—a shopping list which it should be the Minister’s task to ensure is included in the justification for the Bill. We recommended that if the House judged that any of the principles had not been met, it should not support a Motion to suspend Standing Order 47 in the limited circumstances in which it applies.
The Government—I thank them most sincerely for this—seem to accept our views in principle. The noble Lord, Lord Rowlands, has asked some very important questions, and I am sure that the Minister will want to face the challenge that he has set. The Government say in their response:
“Ministers remain prepared to justify the need for any expedition to the House, including covering those issues set out in the Committee's Report”.
That obviously means the eight principles that we advocate, and I welcome that. However, the Government have not responded to the point probed by the noble Lord, Lord Rowlands, that not only should there be a standalone Oral Statement but that Statement should be endorsed and included in the Explanatory Memorandum to the Bill. Will the Minister confirm that there will be both an Oral Statement that stands alone and a Written Statement so that the House can, in a very short time, consider the implications of the Government’s case?
There will always be a temptation for any Government to try to stem public outcries, and there will always be a need, as I have said earlier, to be seen to be doing something. There is no definition of fast-tracking. Indeed, I quickly realised that it would be a complete waste of time to try to find one. The Government are the best judges of need. They know all the circumstances and, having assessed the need for fast-tracking, it is their responsibility, and only theirs, to reach that view. Having done so, they must carry the Opposition. Without the support of the Opposition, the whole process would stumble, fail or stall. Those two requirements are absolutely essential, which is why it is important that we do not embark on this course too lightly, too often or too speedily.
In general, the Government’s response is to be welcomed, but our report highlights the need for restraint. Such legislation, particularly in the case of Northern Ireland where it had become a habit—for very good political reasons, I hasten to add—should be an exceptional approach. I very much enjoyed hearing the evidence. Even if we could not come up with a definition of what we were talking about, we all knew exactly what we were dealing with, and I believe that our report will be helpful in the future. I very much hope that the Government can fill in the two details which the noble Lord, Lord Rowlands, and I have stressed.
My Lords, I, too, congratulate my noble friend Lord Goodlad on securing this debate and on the way in which he has presented the Constitution Committee’s report. I also pay tribute to the way in which he has led the committee, not least in producing this important report.
Scrutinising government legislation is a key task of Parliament and arguably the principal task—it is certainly the most time-consuming task—of this House. Where government seek to expedite the passage of legislation, setting aside the normal rules of each House, the need for vigilance is acute. As we have heard, all Governments have sought to expedite, or fast-track, legislation. Despite the extent of fast-tracking, what is remarkable is the lack of serious studies of that experience. The committee’s report is therefore valuable for the material that it makes available.
As the report makes clear, the reasons for expediting the passage of legislation are varied. The need to fast-track a particular measure is sometimes clear, but needs differ and, as the report details, there was no agreement among the witnesses as to the circumstances in which it is considered constitutionally acceptable to fast-track legislation. However, as my noble friend Lord Goodlad has detailed, the committee was able to identify five constitutional principles that should underpin the consideration of fast-track legislation. These formed the basis of the committee's review.
As a member of the committee, I fully endorse the recommendations. The case for them is, I believe, carefully made in the report. In the time available, I want to comment on the Government's response to the report, their response to the committee's report on a fast-tracked Bill, the Parliamentary Standards Bill, and to add a recommendation of my own to those put forward by the committee.
I start with the Government's response, which welcomes the report and endorses the need for self-restraint by the Government, but it carefully avoids accepting any change that goes beyond the Government exercising self-restraint. There is no acceptance of any proposal that would constitute a permanent and embedded change from existing practice, certainly not one that imposes an obligation on the Government.
Let us consider late amendments. Late amendments to Bills can constitute a form of fast-tracking legislation. We are told that the Government.
“will continue to pursue efforts to limit the number of late amendments tabled that do not fall into this category”.
That is, concessions to points raised earlier in proceedings. This is not encouraging, since it is based on the premise that the Government already pursue efforts to limit the number of late amendments. All we are offered is a continuation of present practice. Given the number of late amendments that continue to be tabled, it is not something from which we can take encouragement.
That is fairly typical of the response, which either commits to continue what the Government already do, based on the presumption that they are exercising self-restraint, or adopts a technique of avoiding the committee’s recommendation. This latter approach is employed in respect of the recommendation that there should be a presumption in favour of sunset clauses. The committee recognises that there will be cases where such clauses cannot be employed. The Government respond by stating:
“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 offer no explanation as to why there should not be a presumption in favour of a sunset clause. Their dismissal of a,
“uniform inclusion of a sunset clause”
is irrelevant, as the committee made no recommendation of a uniform inclusion. The case for the presumption of a sunset clause is made clearly and cogently in the committee's report, but the Government make no attempt to engage with it.
A similar technique is employed in response to the recommendation on post-legislative scrutiny. As we have already heard, the committee recommends that there should be a presumption in favour of an early review of fast-track legislation; that is, within one or possibly two years. The Government state:
“In many cases the full implications of an Act will not be understood one year after Royal Assent”.
They do not say that in most cases the full implications will not be known, which is what they would have to argue in order to dismiss the recommendation for the presumption in favour of early review. Furthermore, the only example the Government offer, the Parliamentary Standards Act, is not the most compelling. Even if there is not a formal review of the measure within two years, I suspect that there will be several informal reviews of its effect. Indeed, it is not beyond the bounds of possibility that we will see an amending Act within that period.
The Government’s response thus falls short. It does not engage directly with the committee’s recommendations. It is based on the premise that the Government already exercise some degree of self-restraint and seem content to let things continue as they are. For the reasons set out in the committee’s report, that is not a sustainable position.
If the Government’s response to this report falls short, so too does the Government’s response to the most recent report of the committee on legislation that was fast-tracked; that is, the Parliamentary Standards Bill. The letter from the Justice Secretary in response to the committee’s 17th and 18th reports of this Session illustrates why the present position is untenable. The committee criticised the Government’s approach to fast-tracking the Bill, arguing that this was not the most appropriate way to legislate on matters which raise complex constitutional and legal issues and that, because of the timescale, there was a lack of public consultation and limited opportunities for parliamentary scrutiny. Mr Straw writes:
“This assessment does not fully take account of the imperatives of the situation we all faced”.
Another way of describing the “imperatives of the situation” is to be found in paragraphs 47 to 49 of the committee’s report on fast-tracking. It is known as the “something must be done” syndrome. The noble and learned Lord, Lord Morris of Aberavon, has already referred to it. The committee quotes Sir John Chilcot who, in his evidence, recounted the experience of Lord Jenkins of Hillhead, who, reflecting on his career,
“said that the best headline he ever had ... was simply ‘Jenkins acts’. It did not say what he had done or why or to what effect, but that he acted. That in his judgment—and he was not entirely flippant—was part of the purpose of things politically”.
In response to the crisis over Members’ expenses, the Government had to be seen to act. Indeed, the Leader of the House justified the Parliamentary Standards Bill on the grounds that:
“The public want action and they want it now”.—[Official Report, 8/7/09; col. 752.]
Lord Jenkins would have recognised the approach. Time was claimed to be of the essence. Although the Bill ended up being less bad than it was on introduction, thanks in very large measure to the work of the Constitution Committee, I am not persuaded that the “imperatives of the situation” justified laying aside our normal procedure. I concur with my noble and learned friend Lord Lyell. Current events suggest that it may have been better to have avoided rushing the measure through.
Given the deficiencies of the Government's responses, I invite the Minister, as several other noble Lords have done already, to revisit what the committee has said, not least its recommendation at paragraph 184; that is, that a Minister should be required, at the time that the Bill is introduced, to make an Oral Statement to the House outlining the case for fast-tracking and addressing the questions listed in paragraph 186. That will ensure that the Government address the case for fast-tracking and on a consistent basis. It will impose a useful, I would suggest a necessary, discipline. It will be helpful if the Minister in replying to the debate places on record the Government's commitment that such a statement will accompany each Bill that is fast-tracked.
I conclude with an additional recommendation, one that is not embodied in the committee’s report. The committee notes that it is open to any Member to seek the opinion of the House when the Motion to suspend Standing Order 47 is moved. As the Government point out in their response, the standing order is suspended only where the timetable would require two stages to be taken in one day. There is clearly an issue where the Government seek to reduce the usual gap between the stages of a Bill, but without taking two stages in a single day. Notice has to be given, but no suspension of Standing Orders is involved. It is possible to move an amendment to a committal Motion, as I did on the Parliamentary Standards Bill, in order to provide that the usual gap between stages be maintained, but as the Leader of the House said on that occasion,
“we are in unusual territory”.—[Official Report, 8/7/09; col. 752.]
I suggest that it ceases to be unusual territory. I believe there is a case for embodying in Standing Orders the gap between stages. That would mean that the Government would have to move a Motion to suspend the Standing Order in order to condense the stages. It would thus be open to any Member to object. The onus would thus be on Government to make a case for shortening the process, rather than on a Member to bring forward a Motion, or rather an amendment, to make the case for maintaining the usual gap between stages.
We could go one step further and learn from the procedure in the other place in respect of closure Motions. For a closure Motion to be carried, there must not only be a majority in favour of the Motion, but at least 100 Members voting “aye”. We could impose a similar provision, a stipulated number who must vote “content”, for any Motion to suspend Standing Orders. That would ensure that the suspension of a Standing Order enjoyed clear and strong support in the House.
We take our responsibility to scrutinise legislation seriously. We commit considerable time and resources to it. It is imperative that all legislation is subject to rigorous scrutiny, even if there is a case for expediting its passage. We need to assure ourselves that the case for fast-tracking legislation is clearly made and that we have mechanisms in place to ensure such scrutiny. Without such procedures being embedded, we run the danger of being carried along with the “something must be done” mentality. Simply saying that we should look at fast-tracked Bills on a case-by-case basis is not sufficient. We need to be vigilant and we need procedures in place to ensure that we are.
My Lords, like noble Lords before me, I too begin by thanking the noble Lord, Lord Goodlad, for chairing the committee and introducing the report with the clarity that one has come to expect of him. I feel slightly strange in that I seem to be the only person who is not a member of the committee to be speaking in the debate. On one level I feel like an intruder, while on the other I feel that I have a greater responsibility to speak because we have been talking about the scrutiny of legislation, and therefore someone who is not a member has a greater responsibility to scrutinise the report. I shall not do that in detail except to make one point.
The report sets out the basic issues with great clarity and I am persuaded by many of the arguments made in support of them, but I am a little surprised that when it discusses legislative bodies outside the UK, it concentrates primarily on Canada, Australia and New Zealand. I would have liked some information on how the United States and our partners in the European Union handle this issue. No doubt their legislative systems are different from ours in ways that those of Canada, Australia and New Zealand are not, but that is precisely their attraction, and we might be able to learn something from their experience. Even if we were to limit ourselves to those countries whose legislative systems are similar to ours, I would have liked further information on how countries like India and South Africa deal with issues of this kind. If a similar occasion arises again, I might be able to offer some ideas based on the experiences of those countries, particularly on how to reconcile the conflicting principles of close legislative scrutiny and the need for fast-track legislation.
We all agree that situations may arise when fast-track legislation becomes necessary. But while it may be necessary, it is also open to obvious dangers. The legislation is likely to be badly drafted and technically poor. It is also likely to invest government with powers the legacy of which might take years to overcome. The German scare of 1911 led to the Official Secrets Act. It was passed in a day and has taken decades to set right. Fast-track legislation is also open to another danger. It is a constant temptation to government to push things that are likely to curry favour with the electorate but which might prove in the long run to be damaging to our interests and honour. I am reminded particularly of the Commonwealth Immigrants Act 1968. It was passed with incredible, and as some newspapers said, indecent haste because a large number of east African Asians who were holders of British passports were beginning to come to this country. The legislation said that even though they held British passports, they were not to be allowed to enter. It tarnished Britain’s name for years, which was held to be the only country that refused to honour its own passport, and it was five years before the European Court of Human Rights was able to declare that the Act had violated human rights, but in the mean time thousands of east African Asians had suffered.
The further danger of fast-track legislation is that it encourages political lobbies to whip up a public outcry in order to get things done that otherwise might not be done. Fast-track legislation also often has a knock-on effect on the rest of the legislative programme, either by delaying it or by causing it to be subject to less rigorous scrutiny. The record of fast-track legislation is rather mixed, with more on the negative than on the positive side. I shall not talk about the well known Dangerous Dogs Act 1991, but I have already given the example of the Commonwealth Immigrants Act, the Child Support Act 1991 and, more recently, the Parliamentary Standards Bill, which was hastily drafted and could have been much worse if the Government had not generously agreed to many important changes.
Given the fact that fast-track legislation is necessary but also that it is open to obvious dangers, we need ways in which to regulate such legislation. How? Broadly I agree with what is set out in the report, but I want to make four or five important points. First, it is important that fast-track legislation should be a measure of last resort. It must be intended to come into effect immediately upon enactment, otherwise the point of it is lost. Secondly, it must be concerned only with situations that demand immediate action, and it should not be used to smuggle in measures that the Government would like to see introduced but are not really relevant to the matter in hand. Thirdly, as my noble friend Lord Rowlands and my noble and learned friend Lord Morris of Aberavon have said, the Minister responsible should make an oral Statement explaining why the fast-track legislation is necessary. The contents of that Statement should also be set out in a written memorandum to be included in the Explanatory Notes.
Fourthly, the Bill should be subjected to as much pre-legislative scrutiny as possible. Although it is fast-track legislation and therefore the amount of scrutiny will always be limited, we recognise that every Bill has to have the approval of the Joint Committee on Human Rights to show that it does not conflict with the Human Rights Act. This means that there is always time for some form of pre-legislative scrutiny, and therefore I cannot understand why even the fastest of fast-track legislation should not be subjected to pre-legislative scrutiny.
I have mixed views about sunset clauses and I think that the Government are right to argue that, rather than make them a point of general principle, they are best dealt with on a case-by-case basis. This is what happens in some of the countries with which I am familiar. But there is a great deal to be said for post-legislative scrutiny. When an Act has been passed in the fastest possible manner, there is always the danger that it will set a precedent, and that precedent may become the reason for introducing other forms of bad law. After the emergency has passed, there must be a way in which we can step back and review whether the law was necessary and should be continued. Therefore some form of post-legislative scrutiny is necessary so that we can decide after a reasonable length of time whether it should be renewed, continued or repealed.
My Lords, as the noble Lord, Lord Parekh, has just said, we must all accept that from time to time circumstances arise where, in the national interest, the demand for what we have termed in this report “fast-track legislation” is justified. But when such circumstances arise, it is essential that everything is done to protect the usual safeguards for proper scrutiny that have been built into our normal procedures. While the organisation JUSTICE argued in its evidence to us that,
“it is important that both the law and the law-making process are sufficiently flexible to address situations that require urgent action”,
Professor Bradley, although not disagreeing, also reminded us that:
“It ought not to be assumed without question that the possibility of rapid legislation is an attractive feature of the United Kingdom’s flexible constitution”.
That is a rather delicate way of putting it, but his opinion is clear.
The chief danger of fast-tracking legislation is the shortage of time—time to consider the problem; time to consider the appropriate legislation; time to consult with interested MPs and their committees, and with all those interested parties outside Parliament who would be affected; and time to debate the proposals at proper length and proper pace as they progress through Parliament.
At present, the role of the House of Lords is very important. In many instances, although a Bill is being fast-tracked, when it arrives at the House of Lords, usually it is processed at a more normal speed and with reasonable time for reasonable debates. At present, this House acts as an important safeguard in the fast-tracking process. However, we must remember that there is much talk of changes to this House, in both its membership and its role. If future changes result in the Government having control of business in this House similar to that that they have in the other place, then a serious safeguard against the misuse of the fast-tracking process may well be lost.
It was suggested to us that fast-track legislation could not be used lightly as it put “enormous pressure” on departments and,
“huge demands on parliamentary counsel”.
Furthermore, it was said that part of the problem was the nature of the drafting process, which only a limited number of people were equipped to undertake. Be that as it may, the pressures, the temptations—call them what you will—can arise to try to short-process legislation without its passing through the normal full and time-consuming parliamentary processes. Such temptations can arise not only with draft Bills but, as has been mentioned already, with amendments to Bills made at a last stage in their progress through the House. They also arise in the creation of new delegated powers. There should be always an early review of fast-track legislation and a system of post-legislative review of such legislation built into the system; whether it is flexible or firm, there should be some form of legislative review.
Perhaps I may say a word about the importance of the House’s Delegated Powers and Regulatory Reform Committee, which plays an important role in the subject that we are discussing. I have served my time on the committee and I have a great respect for its work. It has always benefited from good chairmanship and first-class legal advice, and we recall with sorrow and sadness the recent death of a distinguished past chairman, the late Lord Dahrendorf. The committee examines every Bill that comes before this House. If it concludes that any delegation contained in a Bill gives too much power to a Minister, or that a proposed statutory instrument does not give the right level of parliamentary scrutiny to a proposal, it reports this to the House. Its usefulness is emphasised in that more often or not the Government accept any proposed changes recommended by the committee. Indeed, one suspects that, important though the work of the committee is, its mere existence and the knowledge of its effective and certain scrutiny of any legislation must play an important part in the original government drafting of the legislation in question.
I conclude with two quotations from the report. The first quotation is by Professor McEldowney, who said:
“There is a constitutional principle that bothers me. The constitutional principle is this, that urgency should not set the principle. The principle should be that the bill be given a robust, transparent analysis”.
I agree. The second quotation is from Professor Bradley, who said:
“The House of Lords should take its own decision as to what is required … we have a bicameral legislature and it must be for this House to decide for itself what it wishes to do … one would hope that this independent decision by the House of Lords is kept at all costs and is made a real test for the Government to satisfy”.
I say amen to that.
My Lords, Thomas Jefferson wrote in a letter in 1787 that if he had to choose between having government without newspapers or newspapers without government, he would unhesitatingly choose the latter. Jefferson, of course, did not have to contend with newspapers dissecting his private life or, indeed, his expenses. However, applying a similar principle, there are some noble Lords—I hope I am not the only one—who take the view that effective opposition is as important to the good health of our constitution as effective government.
The evidence received by the Constitution Committee, of which I am a member, illustrated the extent to which the fast-tracking of legislation hinders effective opposition. In our system of parliamentary democracy, the Government enjoy—and rightly so—a number of advantages which assist them in promoting legislation to address the problems that confront us from time to time. In particular, the Government benefit from a civil service which has a collective experience and a collective wisdom that has thought about these problems and thought about the possible solutions which may be adopted. When the Government have digested the advice from the civil service, they can call upon skilled parliamentary draftsmen to express in legislative terms the policy on which they have decided. Opposition—whether it is the Official Opposition, the Liberal Democrats, occasionally those of us on the Cross-Benches; sometimes right reverend Prelates and sometimes, on occasions, Back-Benchers from the government side of the House—inevitably depends on a less well-oiled machine. That is no criticism—far from it—of opposition researchers, who do such an excellent job.
The reality, however, is that while Ministers are being driven off at speed in their official cars, the opposition are running along behind, trying to keep up, hoping for a lift. An effective opposition frequently—not exclusively, but frequently—depends on the lift which is provided by interest groups such as Justice, Liberty, the Bar Council, the Law Society and many of the other organisations that explain to noble Lords the consequences of government proposals. They help us to understand the gap which the proposed legislation will leave, deliberately or accidentally, so that we can raise such matters in the House.
All this takes time, as the noble Lord, Lord Shaw, reminded us—time for the interest groups to understand and analyse the proposed legislation; time for them to brief us; time for us to understand the points; and time for us to draft amendments to highlight possible deficiencies in the legislation. The faster the legislative timetable, the less effective opposition inevitably will be, and the product will inevitably be of lower quality. Paragraphs 44 and 45 of the Constitution Committee’s report contain some of the evidence we received that supports these points. It is for these reasons, among others, that legislation should be fast-tracked, as the committee has recommended, only where it is strictly necessary.
I am very grateful to the Government, as I am sure are all noble Lords, for their positive response to the committee’s report. However, I would respectfully invite the noble Baroness the Leader of the House to clarify two aspects of the Government’s response. The first matter is whether the Government accept the proposal that, when Ministers explain to the House why fast-tracking is necessary in a particular case, they should address all the points listed in paragraph 186 of our report. Those points were read out by the noble Lord, Lord Goodlad. The noble Lord, Lord Rowlands, referred to them, and the noble and learned Lord, Lord Morris, rightly said that they are pivotal to our report. I fear that the Government’s response to the report on this matter is ambiguous. It says:
“Ministers remain prepared to justify the need for expedition to the House, including covering those issues set out in the Committee’s report”.
There is, or there may be, an important distinction between Ministers being prepared to address these points if asked to do so and their accepting the committee’s important recommendation at paragraph 186 that they should address all these specific topics orally and in a written memorandum whenever they propose that legislation is to be fast-tracked.
The other matter on which I would invite clarification is the Government’s response to the proposal that there should be a presumption in favour of a sunset clause whenever legislation is fast-tracked. The Government’s response rightly points out that there will be cases where a sunset clause is inappropriate or unnecessary and, therefore, that a case-by-case analysis is required. However, the committee recognised that a sunset clause will not always be appropriate. Its point was that a presumption is justified by the fact that fast-tracked legislation will inevitably have involved a sacrifice of some of the time and attention devoted to proposals for legislation. A presumption simply means—but importantly means—that a proper case has to be made for not including a sunset clause. Like the noble Lord, Lord Norton, I simply do not understand why the Government reject, as they appear to do, the committee’s recommendation that there should be a presumption of a sunset clause. I should be grateful if the noble Baroness the Leader of House would explain the Government’s position.
I have had the privilege and the pleasure of serving on your Lordships’ Constitution Committee for almost one year. It is for noble Lords who are not members of the committee to comment on the value of our work, but I echo the tribute paid by the noble Lord, Lord Goodlad, to our adviser, Professor Andrew Le Sueur, for his invaluable contribution to the work of the committee. Like other members of the committee, I also thank the noble Lord, Lord Goodlad, for the wisdom, skill and unfailing courtesy with which he has chaired the work of our committee.
My Lords, like the noble Lord, Lord Parekh, who spoke earlier in this debate, I did not have the privilege to serve on this committee, but I think that the noble Lord, Lord Goodlad, and his committee have provided this House with a weighty, authoritative and well argued report. I adopt its conclusions and advocate strongly that the Government respond in detail, particularly to the two last points made by the noble Lord, Lord Pannick, to which I shall return.
Like the noble Lord, Lord Rowlands, I entered Parliament in 1966. When I heard him speak earlier in the debate, I recognised that we came to these subjects from the same position. We have both experienced a sense that the procedures and the time taken to consider legislative matters have been rather less scrupulously regarded as the calendar has moved on. Notwithstanding the example of the Commonwealth Immigrants Act, which, like the noble Lord, Lord Parekh, I regard as the least honourable legislation that was passed in my first Parliament, I believe that the management of government business in Parliament has become too mechanistic and that the introduction of programming, particularly and almost exclusively in another place, is something to which we might give some post-legislative scrutiny—and I fear that we might well find it wanting. It is not least for that reason that the role of this House in acting as the body that can open up the discussions about legislation which have remained closed in another place is not to be departed from readily or lightly. This House has the power under Standing Order 47 to act with rapidity in response to a perceived crisis, but I hope that it would not be done without proper, open consideration of the arguments in a way that has not always characterised the deliberations of another place.
Not only has the committee produced an exceedingly valuable series of suggestions of proposals, but it has elicited very weighty evidence from experienced people and from some of our leading constitutional lawyers. Sometimes the Executive are faced with situations in which it is not possible to delay the response. I heard with familiarity the reference to the late Lord Jenkins, who gave colour to this point by saying that his greatest satisfaction was to see the headline, “Jenkins acts”. But I do not know that he would necessarily have regarded action as involving legislation. To cite that illustration as an exemplification of the case for passing yet another variation on the criminal justice system because there has been a headline in a tabloid newspaper about a particularly shocking crime is not something that we should draw as a proper conclusion.
The fast-track procedure has become more common than it used to be, though it is still not very common. Professor Anthony Bradley drew attention to that in his evidence to the committee. Some of us have noticed recent examples with dismay; not so much as regards executive action but, as the noble and learned Lord, Lord Lyell, said, as regards aspects of the Parliamentary Standards Act. It did have the characteristics of Alice in Wonderland about it, and although my party broadly supported action, I am not entirely certain that the action implemented in the form of that particular Act is one that we will live with with satisfaction for very long.
The key issues that we should recognise as presenting problems are that, as Professor Bradley said, the most cherished liberties in the common law can be taken away as rapidly as the freedom to keep dangerous dogs. There can be unacceptable pressure on parliamentary draftsmen, which can easily result in not mere infelicities but unforeseen consequences. The need to consult and legislate transparently is a crucial part of our democratic system. Cut-down debates in this and another place have a very damaging effect on public awareness of what the issues are. We have taken a number of steps to improve our legislative processes and to avoid the unexpected consequences of our action in the past decade. We have instituted the Joint Committee on Human Rights and given watchdog committees powers and recognised their role. However, it is a great mistake not to embody those checks in situations of emergency, which lead to fast-track legislation. I very much hope that the recommendations of the committee will be observed and acted on by the Government.
The crucial questions that the Minister has to answer in this debate are, first, how she and the Government and, in particular how this House, are to be treated in answering the recommendation that a Statement that contains reference to the eight principles set out in paragraph 186 of the committee’s report should precede fast-track legislation. They have been read out before and I shall not allude to them again, though each of them is of great importance, individually and collectively.
It must be clear that the Bill is not being used as a vehicle to attach some issue to, in addition to the matters that have given rise to the urgent legislation. The legislation should not be a vehicle for what has been stored in the relevant department. Do the Government accept that a procedure is required to give effect to the Government’s recognition of the need to justify expedition? The procedure recommended, of a Statement in the House and in the Explanatory Memorandum, seems to me highly commendable.
Finally, the other explicit answer that the House is looking for today is the Government’s response to the presumption that the sunset clause is the appropriate way in which to deal with these matters to give time after the event to review how the legislation has worked and to undertake that that will be part of any fast-track legislation, unless authoritative and clearly accepted reasons are given.
My Lords, I rise in this important debate to congratulate the members of the Constitution Committee on bringing forward this report and giving us this timely opportunity to discuss the fast-track process. I am a relatively new Member of the House and an even fresher Member of the Front Bench on this side. So much of politics today is focused on product and so little attention is given to process—yet process determines product in its quality and purpose. The focus on this element has broadened out in the debate into a wider consideration of the way in which we do scrutiny. I pay tribute to my noble friend Lord Goodlad for his chairmanship and leadership in preparing the report and for the way in which he has tried to hone the extensive evidence that has been presented into some basic principles which can then be used as a test for other legislation that may be introduced under this measure. It would be interesting to see, perhaps as a further piece of work, whether, had those principles been applied to some of the Bills to which we have referred during this debate, they would have qualified for this additional privilege and purpose.
The report also makes some distinctions about where we are focusing our attention in terms of the problem. It is appropriate for your Lordships’ House to have a sense of humble pride in the deliberations that take place here and some concern about the nature of debate as it is currently constituted in the other place. There are some basic principles that differ. For example, the Government do not have control of the time and do not have the ability to introduce programme Motions in this place, as they can and nearly always do in the other place. I am sure that that is a frustration to the Government from time to time, but it is also an important safeguard of the quality of debate in this place.
There are other elements here, such as the juxtaposition of this debate with the previous Third Reading debate on the Apprenticeships, Skills, Children and Learning Bill—the mammoth piece of legislation to which the noble Lord, Lord Rowlands, referred. At the end, there was a fascinating exchange between the Front-Benchers and the Cross-Benchers. This was a significant piece of legislation that had been hugely changed as a result of debates in this House and compliments were paid about the good work that had taken place. The noble Lord, Lord Elton, referred to the time allocated for consideration and the consultation that was undertaken, particularly with external bodies, professional associations and learned and knowledgeable people in the field who would be affected by the legislation. Finally and most crucially, the Government were in listening mode to the representations that were made and therefore brought forward the necessary amendments. Sometimes, we focus way too much on the negatives about bad legislation and far too little on the positives—about what constitutes good parliamentary activity and good legislation.
My noble friend Lord Goodlad quoted Tony Benn saying that “When Front-Benchers agree something in private, Parliament should be at its most vigilant”. I am sure there is an echo here. It is important in this process. But it is important for Her Majesty's Official Opposition to put on the record that we have an eye on one day being on the government Benches. The recommendations in this piece of work do not make comfortable reading. The point of political scrutiny and parliamentary procedure is to make the Government uncomfortable. It is a problem if the Government ever become comfortable, because the purpose of Parliament is to hold the Executive to account. That is what has been happening.
There is a concern about the increasing use of guillotines, a point made by the noble Lord, Lord Rowlands, and the increasing pace with which debate in the other place is truncated. Therefore, legislation comes here needing significant new amendments and refinements.
My noble and learned friend Lord Lyell referred to the Parliamentary Standards Bill, which was one of the triggers for the debate that we are having this evening and for the report. One of the criticisms in the report is that in the legislation mould that we are in there is a cry for something to be done. Well, sometimes, something must be done. That is what has been happening to Parliament and its reputation. This has without doubt been one of the greatest crises in confidence in the parliamentary process that I have ever known and that there has been for a very long time. There has been a huge crisis and something needed to be done. People needed to see that we were prepared to act. That was the point made by my noble friend Lord Norton.
There are safeguards that we can introduce. The late tabling of amendments makes it very difficult for interested parties to be involved in discussion and debate, particularly from the point of view of the Official Opposition, who do not have access to the Bill teams and the Civil Service. I am sure that I speak for the Cross Benches too when I say that that means you rely very heavily on speaking to trade bodies and people who are working on the ground in the areas that you are legislating on to hear their concerns about the impact of the legislation on them.
I was also particularly interested—perhaps it could be an area for further work—in the costs of poor legislation. We talk about badly drafted and technically flawed legislation and we say that it can leave legislation open to legal challenge, but what are the costs of that? That is a pertinent question. It may be something that needs to be looked at in greater detail going forward, but what are the consequences of poorly drafted legislation in terms of adding to bureaucracy and not achieving desired outcomes? When we are rushing through at a pace, clearly that has an impact and a potential financial cost, and delays in essential legislation can and do occur.
My noble friend Lord Shaw talked about the dangers of rapid legislation and the importance of speed as a safeguard in this House. When matters are rushed through we do not have time. I say “We do not have the time” as if we were the only actors in this field, but what about the Bill teams, the civil servants and the agencies responsible for adjusting to the legislation and implementing it? They, too, do not have time to prepare. That is a persuasive point about the current pace of legislation.
The noble Lord, Lord Pannick, made a crucial point about the exogenous forces at work on Parliament and the importance of the media. We are in a media age and the media sensationalise and sometimes trivialise, moving from one headline to another. That is a difficult environment in which to legislate. That is one reason why Parliament must be an essential safeguard in the whole process in guaranteeing freedoms, scrutiny and process, in sensible legislation, for concerns that are legitimately raised within the media.
These are all difficulties that we will be wrestling with as a Parliament, but the debate initiated by the committee and its excellent report is timely and essential, not only for the Opposition but for the Government if we are further to regain and rebuild the reputation of Parliament in this country.
My Lords, I too thank the noble Lord, Lord Goodlad, and the Select Committee on the Constitution for their timely report on fast-track legislation. I also thank all noble Lords who have spoken this afternoon. I was very grateful for the opportunity to offer evidence to the committee on this inquiry and for the further opportunity to contribute to the debate today. I apologise to the noble Lord and the committee for the late submission of the government response. I, too, share the disappointment of the committee and very much regret our tardiness. There is no excuse. I take personal responsibility and I should have chased it up.
The Government welcome the committee’s report on fast-track legislation. It is right that parliamentary procedures are reviewed from time to time to ensure that they are being properly used and not abused, and the committee has fulfilled an important task with this particular inquiry and report. Fast-track or expedited legislation is not new. The committee lists well over 30 Bills which have been subject to fast-track procedures since 1974 and notes that several others could have been included in the list, depending on exactly how fast-track legislation is defined. It is not a matter of circumvention and avoidance, but of the need to respond swiftly to certain circumstances. It may be worth repeating at the outset that expedited Bills are not constitutionally different from other Bills; they must pass through the same legislative stages in both Houses. All noble Lords are right to say that we must be vigilant in the use of fast-tracking.
I will deal with the quotation from Tony Benn about when Front Benches all agree. Some noble Lords have suggested that legislation is fast-tracked based on agreements between the usual channels, which are conspiring against Back-Benchers. It is right and proper that the Government should seek the co-operation of the usual channels. That then provides a platform from which to seek to win over the rest of the House. However, it is not a substitute for seeking the views of the rest of the House; it is a starting point, and that is right and only proper.
Of course, I would respectfully disagree with the noble Lord, Lord Norton, when he suggested that the Government had failed to engage fully with the committee’s report. The committee quite naturally seeks safeguards to secure proper scrutiny of legislation. Equally naturally, we must be wary of giving undertakings when we cannot foresee all the possible circumstances in which the Government—or indeed future Governments —might need to expedite legislation.
In relation to the tabling of late amendments, we agree with the committee’s recommendation and have always accepted that late amendments are inherently undesirable. However, as the committee recognises, such amendments are sometimes unavoidable and should not automatically be regarded as a sign of weakness in the scrutiny process. On the contrary, late amendments can sometimes demonstrate that scrutiny has succeeded—for example, when we table concessionary amendments to deal with points raised by noble Lords or in another place. However, I assure noble Lords that we will continue to work hard to limit the number of late amendments that are tabled on the Government’s own initiative.
The committee urged us to show self-restraint when looking to fast-track affirmative statutory instruments. The committee is absolutely right. The committee itself noted that the JCSI’s scrutiny reserve has been overridden on only five occasions since 1990. We rely on the co-operation of the JCSI and the Merits Committee when the timetable for obtaining approval of an affirmative instrument is unusually tight but, as the committee notes, it is for those committees to decide whether to accede to Ministers’ requests. I pay tribute to the Merits Committee and the JCSI for their work, and emphasise that we make every effort to ensure that the House has had the benefit of the views of both committees before it is invited to approve affirmative instruments.
The noble Lord, Lord Shaw of Northstead, drew our attention to the work of the Delegated Powers Committee, which certainly plays an extremely important role in our legislative process. I heed his wise words and the quotations that he cited. He raised the question of time, as did the noble Lord, Lord Pannick, who is of course welcome to walk home with me this evening to discuss these and other issues. I agree that, for all the reasons he gave, legislation should be fast-tracked only when specifically necessary. The process can indeed help to determine the product, as the noble Lord, Lord Bates, reminded us. Of course, time is of the essence for good opposition, and good opposition—as well as good government—are key to good governance. I certainly recognise that. The fact that we do not have programme motions in this place helps to safeguard parliamentary scrutiny in many ways.
The Government very much welcome the committee’s support for pre-legislative scrutiny. The report recommended that the Government put mechanisms in place for parliamentary committees and stakeholders to comment on proposed fast-track legislation ahead of Second Reading in the first House. We will certainly consider further how we can make better use of the pre-legislative scrutiny process in fast-track legislation on a case-by-case basis. However, as the committee also recognised, by their very nature, fast-track Bills require flexibility in handling, and we therefore do not believe it would be practicable to set out in advance what type of pre-legislative scrutiny can be achieved in each case. The Criminal Evidence (Witness Anonymity) Bill was considered by the Joint Committee on Human Rights and the Constitution Committee during its passage through Parliament. This is perhaps an example that we could build on.
The Government also accept the committee’s recommendation that use of the No. 2 Bill procedure, which was used during the passage of the Banking Act this Session, should not be extended. We agree that the advantages of this procedure are normally outweighed by its disadvantages.
The committee reminded us that the Minister responsible for the Bill should be required to make an Oral Statement to your Lordships when the Bill is introduced, making the case for fast-tracking—a key part of the debate today. The committee also set out a detailed list of issues that such a Statement should cover. The Government fully agree with the principle of the committee’s recommendation, and the issues on which the House can expect an explanation. We welcome the greater openness and transparency that adherence to the principle should bring. We will ensure that Ministers make their case on each occasion that fast-tracking is proposed. The list of points set out in paragraph 186 of the committee’s report offers an excellent template for how such explanations should be formulated. The procedure by which the Government put their case for fast-tracking before the House is something that deserves further consideration. I would like to discuss this further with the noble Lord, Lord Goodlad, as well as the usual channels.
I well understand the importance that my noble friend Lord Rowlands and others attach to an Oral Statement, but I want to ensure that whatever is agreed really meets the demands of the committee. Simply requesting an Oral Statement would not in every case meet those needs. I very much agree that the Explanatory Memorandum to the Bill could—perhaps should—include a statement about the need for fast-tracking. I will certainly pursue this further. I also note the suggestion of the noble Lord, Lord Norton of Louth, about the suspension of standing orders when we need to condense stages. I will take that back and reflect further.
The committee recommended that there should be a presumption in favour of the use of sunset clauses in fast-track Bills, and that the Government should make the case for excluding such a clause, where they have done so, in the ministerial Statement. We believe that the use of sunset clauses should continue to be considered on a case-by-case basis, although we fully accept the committee’s recommendation that the House is entitled to an explanation of why a sunset clause is not included in a fast-tracked Bill. As ever, we will continue to listen to the views of the House on this and other issues. I am grateful for the support of my noble friend Lord Parekh, who perhaps brings a fresh perspective to this issue.
The issue of presumption depends in many ways on how one defines the word. If by “presumption” one means that generally sunset clauses are a good idea, I cannot accept that, as I mentioned. As I also said in my evidence to the committee, there are Bills, including those brought forward in response to court cases, for example, where the uncertainty introduced by a sunset clause would be contrary to the intention of the legislation. However, if by “presumption” we mean that Ministers should be prepared to justify why no sunset clause has been included in a piece of fast-tracked legislation, I can absolutely accept that. I think that is what is required of us under point (e) in the list of issues set out in paragraph 186.
The committee also made the related point that any legislation subject to a fast-track procedure should be subject to post-legislative review within one or two years. We recognise the principle behind the committee’s argument. Where Parliament’s consideration of a Bill has been carried out quickly, it should be given an early opportunity to reconsider the legislation. Where there is adequate evidence about the operation of an Act for the Government to carry out an early review, we agree that there is a case for doing so. However, it would not be productive to conduct post-legislative reviews before an Act has had time to take effect and its impact has been understood. I will come back shortly to the Parliamentary Standards Act, which could be cited as an example of that.
The Government remain committed to conducting post-legislative scrutiny within three to five years of Royal Assent. In light of the strong case made by the committee, we will endeavour to conduct reviews as early as possible within that window. Where there is sufficient evidence about the operation of an Act to bring post-legislative scrutiny forward, then we will do so whenever possible. I note the comments made by the noble Lord, Lord Bates, about the costs of bad legislation. I certainly think that we should reflect on that also.
The noble and learned Lord, Lord Lyell of Markyate, and the noble Lord, Lord Maclennan, referred to the Parliamentary Standards Bill. Urgent action was required to address an unprecedented crisis of public confidence in Parliament. It was necessary to have the establishment of IPSA well under way so that it could take forward the recommendations of the Kelly report. That is what is happening, thanks to the expedited passage of that Bill. It was not just a question of action being seen to be done, although that was important; action was already taking place in respect of, for example, external audit by the NAO and the establishment of a review by the Committee on Standards in Public Life. However, we had to ensure that legislation was passed before the Summer Recess in order to allow IPSA time to recruit members and staff, find premises, establish an administration and complete consultation on an allowances scheme and code of financial conduct before the next election. I think we all agree that we want to conclude all the issues in relation to parliamentary allowances and what has gone before prior to the next election so that we can all start with a clean slate. That is why we brought forward that expedited legislation.
My noble and learned friend Lord Morris of Aberavon clearly demonstrated the potential pitfalls of fast-track legislation, but one can see why the Criminal Justice (Terrorism and Conspiracy) Act 1998 was deemed a necessity at the time; in retrospect, perhaps it is not. My noble friend Lord Rowlands asked about Northern Ireland legislation and the need for normalcy, as he put it, in relation to Northern Ireland. That, too, is my strong desire. The Northern Ireland Act 2009 was an important piece of legislation that gave effect to an agreement between the First and Deputy First Minister, but I sincerely hope that truly was the last piece of the jigsaw.
Overall, I hope that the committee and the House will recognise that the Government have reflected carefully on the recommendations contained in this report, and accepted the vast majority of them. As we are on the eve of a new legislative Session, this is a particularly apt moment for the Government and the House to be engaging on these matters, and I reiterate my thanks to the noble Lord, Lord Goodlad, and all other noble Lords who have participated in the debate this afternoon for providing us with the opportunity to do so.
My Lords, I briefly express a word of appreciation to the members of the committee for their work on the report, and to those who have spoken in the debate today: the noble Lords, Lord Rowlands, Lord Parekh, Lord Maclennan of Rogart and Lord Pannick; my noble and learned friend Lord Lyell of Markyate; the noble and learned Lord, Lord Morris of Aberavon; my noble friends Lord Norton of Louth, Lord Shaw of Northstead and Lord Bates; and lastly, the noble Baroness the Leader of the House.
Years ago in another place I remember that Enoch Powell said that he was participating in a debate even when he did not speak in it. The importance of this subject has been witnessed by the very large number of noble Lords who have participated in the debate without speaking in it.
The quality of our legislation in a very fast-changing world affects every citizen in the country. There is a view that Parliament is gradually ceding its functions to arms of the Executive in a prolonged fit of negligence, absent-mindedness and torpor. The quality of our debate today gives the lie to that view. We are extremely grateful to the noble Baroness the Leader of the House for her unfailing courtesy, her response today and the Government’s response to the report. We shall consider both with great care in the committee and respond accordingly.