Some Notes on Emergency Legislation

For the first time in most of our lives, we are living through a pandemic. Across the world, legislatures will be forced or tempted to pass emergency legislation to put in place measures to stop and reverse the spread of Covid-19. In this post, I collect a few notes on Emergency Legislation, based on a seminar I taught during my time at the University of Cambridge.

Introduction

Several important issues arise in the area of “emergency” legislation – laws that are passed without going through the ordinary process of parliamentary scrutiny. Concerns might legitimately be raised about the effectiveness of the legislative process whenever it is truncated.

Some situations will obviously be emergencies, in that they require urgent legislative responses to events, such as earthquakes, nuclear disasters, and adverse judicial decisions. Even here, however, we should pause to note that not every earthquake, nuclear disaster or adverse judicial decision will necessitate truncating the ordinary legislative process; some of them might be quite small in scale. In addition, what an “emergency” is might depend on the political and constitutional characteristics of a given jurisdiction – urgency in the New Zealand legislative process, to take a notable example, is not triggered by what would conventionally be thought of as emergencies. Beyond these definitional issues, there are truncated legislative procedures at the end of a Parliament’s life – the so-called ‘wash up’.

There are a variety of safeguards and potential responses to the concerns raised by legislation that has been fast-tracked through Parliament. One possibility is to plan for emergencies in advance, by setting out a general framework, as in the Civil Contingencies Act 2004 (though the challenge then becomes ensuring that emergency powers are not abused). Other possibilities to discuss are independent reviews (conducted on a regular basis) and sunset clauses.

What is an Emergency?

For the German legal theorist Carl Schmitt the locus of sovereignty was the ability to decide on the “exception”, that is, where the ordinary law does not apply. There are many constitutional systems in which an actor or actors have the authority to determine the existence of a state of exception. A particularly good example is article 123 of the Indian Constitution, which permits the President to legislate by ordinance where he is satisfied that “circumstances exist that render it necessary for him to take immediate action”, on any matter “as the circumstances appear to him to require”.

However, the House of Lords Constitution Committee preferred the term “fast-track” legislation, for its “descriptive value”: “Like an express train, a bill on the “fast-track” will pass through all its normal “stops” (i.e. the various stages in each House), but the intervals between each stop will be shorter than on the “slow line””.[1] But it is difficult to define, because there is no one “fast-track”, but rather a “spectrum”.[2] And sometimes, fast-track legislation will be perfectly acceptable, because it is innocuous, or enjoys wide support.[3]

Situations such as unanticipated judicial decisions, terrorist attacks, economic collapse, pandemics and natural disasters are often thought to require emergency legislation. Industrial action and moral panic represent, perhaps, more dubious cases for the fast-tracking of bills.

Parliamentary Problems

If we define an “emergency”, for the purposes of legislation, as the cutting short of the ordinary process of parliamentary scrutiny, it turns out that there are many practices that meet the definition.

In New Zealand, legislation is fast-tracked for various reasons, including a lack of parliamentary time to put statutory provisions through all the ordinary stages all the time.

Legislation might be fast-tracked because it is needed for an upcoming event (e.g. TPIM Act 2011, before London Olympics)

One “emergency” is precipitated by the end of a parliamentary session; another is the so-called “wash up” triggered by the calling of a general election:

The wash-up is a regular feature of every Parliament: after the announcement of a general election there usually follows several days during which the Government and the main opposition party liaise to determine which pieces of legislation will complete their passage through Parliament on an expedited timetable prior to dissolution.[1]

Convention provides that the House of Lords will not object to the inclusion in the wash up of bills that have received a second reading in the House of Commons. However, the convention was strained in respect of the Constitutional Reform and Governance Act 2010, because the Lords took the view that scrutiny in the lower house had been inadequate; on foot of a very critical report from the Constitution Committee, they refused to accede to the request to include a number of measures in the wash-up.

In general:

The problems that the wash-up throws up are therefore issues of pragmatism versus principle; transparency and accountability; consultation and inclusion; provision for effective scrutiny; and the constitutional relationship between and responsibilities of the elected and unelected chambers. Normal democratic practice is effectively inverted during the wash-up with both the opposition and peers empowered through the possession of a legislative veto power.[2]

Good Practices for Emergency Legislation

The House of Lords Constitution Committee suggested five principles that ought to be respected during the passage of fast-track legislation:

• ·  The need to ensure that effective parliamentary scrutiny is maintained in all situations. Can effective scrutiny still be undertaken when the progress of bills is fast-tracked, even to the extent of taking multiple stages in one day?
• ·  The need to maintain “good law”—i.e. to ensure that the technical quality of all legislation is maintained and improved. Is there any evidence that the fast-tracking of legislation has led to “bad law”?
• ·  The importance of providing interested bodies and affected organisations with the opportunity to influence the legislative process. Is Parliament able to take account of the work of campaigners in its scrutiny work when a bill completes its parliamentary passage so quickly?
• ·  The need to ensure that legislation is a proportionate, justified and appropriate response to the matter in hand and that fundamental constitutional rights and principles are not jeopardised.
• ·  The need to maintain transparency. To what extent are the transparency of the policy-making process within government and the parliamentary legislative process compromised when bills are fast-tracked?[1]

The challenges are easy to identify: less time for interest groups to influence the process; less time for drafters to refine the legislation; less time for committees to scrutinise and hear evidence; risk that non-urgent measures will be tacked onto fast-track legislation; exacerbates executive dominance of legislative process because executive controls timetabling (though not in the Lords)

Their recommendations were:

As such, we recommend that the Minister responsible for the bill should be required to make an oral statement to the House of Lords outlining the case for fast-tracking. This should take place when the bill is introduced to the House in order to allow a debate, as early as possible on the justification for fast-tracking the bill, which does not detract from the Second Reading debate. The details contained in the oral statement should also be set out in a written memorandum included in the Explanatory Notes. The parliamentary time allocated for the statement should not in any way impinge upon the time available for consideration of the bill.

In the light of the evidence we have received about the potential problems and issues pertaining to the use of fast-track legislation, we recommend that the Ministerial Statement should be required to address the following principles:

(a)  Why is fast-tracking necessary?

(b)  What is the justification for fast-tracking each element of the bill?

(c)  What efforts have been made to ensure the amount of time made available for parliamentary scrutiny has been maximised?

(d)  To what extent have interested parties and outside groups been given an opportunity to influence the policy proposal?

(e)  Does the bill include a sunset clause (as well as any appropriate renewal procedure)? If not, why do the Government judge that their inclusion is not appropriate? (see para 198)

(f)  Are mechanisms for effective post-legislative scrutiny and review in place? If not, why do the Government judge that their inclusion is not appropriate? (see paras 208-9)

(g)  Has an assessment been made as to whether existing legislation is sufficient to deal with any or all of the issues in question?

(h)  Have relevant parliamentary committees been given the opportunity to scrutinise the legislation?

We recommend that in its consideration of whether to allow a bill to be fast-tracked through its legislative stages, the House should bear in mind whether the Government’s Ministerial Statement justifying fast-tracking has adequately addressed these principles. We will do this in the course of our scrutiny of any bill that it is proposed should be fast-tracked.[2]

They also recommended a presumption in favour of sunset provisions for fast-tracked legislation[3] and guaranteed post-legislative scrutiny.[4]

The technicalities of legislative planning for and reaction to emergencies are complex and raise different issues: whereas the executive claims or needs broad powers to act swiftly and decisively, legislative action ought (in principle) to be slower and deliberative.

New Zealand, of course, has in recent years suffered significant national disasters, in the form of earthquakes that required urgent legislative and regulatory responses; the framework adopted was, broadly, to empower the executive to act via Order in Council in order to take appropriate reactive measures.[5]

In general, the Regulations Review Committee commented,

…the criticisms expressed…about the inclusion of powers to make Orders in Council overriding Acts were well-made. They served to remind everyone involved in the process of legislating for the recovery from the Canterbury earthquakes that overriding primary legislation with delegated legislation was contrary to constitutional norms and carried risk of abuse. The safeguards and checks put in place helped ensure that the powers were not abused, but were used moderately and consistently with the purpose for which they were granted. Nevertheless, the regulation-making power was broader than was necessary, and we believe it is useful to consider some further checks and safeguards that could be incorporated if it becomes necessary to consider using similar powers in a future national emergency.[6]

The Committee rejected the suggestion that general emergency legislation (like Britain’s Civil Contingencies Act 2004) ought to be adopted:

The multitude of different types of emergencies that are possible means that the resulting powers under such legislation would inevitably have to be unacceptably broad. Experience with the Canterbury earthquakes legislation, in particular the 2011 Act, has shown that our legislative agencies and institutions are capable of enacting quickly bespoke legislation for recovery from a national emergency. The key is to ensure such legislation adequately balances the need for extraordinary powers to get the job of recovery done, without overly compromising rights and freedoms and proper process.[7]

General safeguards, by contrast, would be very much appropriate:

• using primary legislation wherever possible rather than broad powers to make delegated legislation
• including sunset provisions for emergency powers and requiring renewal of such powers every three years at the most
• retaining an external panel led by a retired High Court Judge to review Orders in Council before they are made to ensure they are authorised and to suggest any amendments
• preserving rights to seek judicial review of the exercise of emergency powers, including of Orders in Council, while ensuring meritless challenges do not frustrate the ability to get the job of recovery underway.[8]

One of the most striking suggestions is that any Henry VIII clause permitting the executive to modify primary legislation should set out in advance the primary legislation that could be so modified:

[W]e recommend that any future national emergencies legislation with power to make Orders in Council overriding other Acts should set out an exclusive “positive list” of enactments (including subordinate legislation) that can be overridden by Order in Council. We are unable to say in advance which enactments should be on that list. It will depend on the nature of the particular emergency, and when it occurs. Rather than attempt to prepare a list in advance, we think a better approach would be for the list of enactments that can be overridden to be developed under the supervision of the Attorney-General, with select committee consideration, informed by submissions, during the preparation of bespoke legislation following a national emergency. We consider that the guiding principle should be that the list of Acts that could be overridden should be no broader than necessary in each circumstance. We consider that there should be substantive justification for the inclusion of each Act listed.[9]

One wonders if this restrictive approach to Henry VIII clauses could be applied more broadly. The Committee would have explicitly excluded human rights legislation from modification.

Safeguards

Sunset clauses

– e.g. Debt Relief (Developing Countries) Act 2010 (prompted by wash-up); Anti-Terrorism, Crime and Security Act 2001, s. 29(7). Indian Constitution, art. 123, lapses six weeks after the return of Parliament unless formally authorized.

Civil Contingencies Act, s. 26(1)(a)

Super-affirmative resolution clauses

 e.g. Digital Economy Act 2010, passed in the wash-up, contains in s. 10, inserting a new s. 124H in the Communications Act 2003 which allows the Minister to order internet service providers to limit access to their services; but pursuant to s. 124H(6-10), this power can only be brought into force by a super-affirmative resolution procedure.

Prevention of Terrorism Act 2005, s. 13 (sunset but Henry VIII clause): lapses after one year and can be renewed for one year by affirmative resolution. Now repealed. It was strongly criticised:

…the Manichean annual renewal mechanism presented the Official Opposition with a dilemma in that, despite their distaste for control orders, they were not allowed under the terms of the debate on a statutory order to present any realistic alternative. They could either vote to continue the legislation or vote against renewal (and face the political consequences). A third option of abstention was used (as in 2009) but effectively endorsed a vote in favour, given the government’s in-built majority. Annual renewal made no provision for nuanced amendment of the statutory order under s.13. This “take it or leave it” approach presented a serious limitation for parliamentarians and again contrasts with legal constitutionalism, whereby judges who reviewed individual control orders could offer a spectrum of outcomes, ranging from tinkering with the terms of orders to striking down the entire order.[1]

Renewal debates do (other things being equal) have the advantage, however, of prompting expert select committees to engage in post-legislative scrutiny and ensuring that ministerial reports on the exercise of powers are taken more seriously.[2]

[1] Ruth Fox and Matt Korris, “Hansard Society: Reform of the Wash-up: Managing the Legislative Tidal Wave at the End of a Parliament” (2010) 63 Parliamentary Affairs 558, at p. 558.

[2] Ruth Fox and Matt Korris, “Hansard Society: Reform of the Wash-up: Managing the Legislative Tidal Wave at the End of a Parliament” (2010) 63 Parliamentary Affairs 558, at p. 565.

[1] House of Lords, Constitution Committee: Fifteenth Report, “Fast-Track Legislation: Constitutional Implications and Safeguards” HL 116-1 Session 2008-9, at para. 12.

[2] House of Lords, Constitution Committee: Fifteenth Report, “Fast-Track Legislation: Constitutional Implications and Safeguards” HL 116-1 Session 2008-9, at para. 26.

[3] House of Lords, Constitution Committee: Fifteenth Report, “Fast-Track Legislation: Constitutional Implications and Safeguards” HL 116-1 Session 2008-9, at para. 25.

[1] House of Lords, Constitution Committee: Fifteenth Report, “Fast-Track Legislation: Constitutional Implications and Safeguards” HL 116-1 Session 2008-9, at para. 16.

[2] House of Lords, Constitution Committee: Fifteenth Report, “Fast-Track Legislation: Constitutional Implications and Safeguards” HL 116-1 Session 2008-9, at paras. 185-187.

[3] House of Lords, Constitution Committee: Fifteenth Report, “Fast-Track Legislation: Constitutional Implications and Safeguards” HL 116-1 Session 2008-9, at para. 198.

[4] House of Lords, Constitution Committee: Fifteenth Report, “Fast-Track Legislation: Constitutional Implications and Safeguards” HL 116-1 Session 2008-9, at paras. 208-209.

[5] New Zealand House of Representatives, Regulations Review Committee, Inquiry into Parliament’s legislative response to future national emergencies (I.16B) (December 2016).

[6] Ibid. at p. 17.

[7] Ibid. at p. 19.

[8] Ibid. at p. 18.

[9] Ibid. at p. 21.

[1] Alexander Horne and Clive Walker, “Lessons learned from political constitutionalism? Comparing the enactment of control orders and terrorism prevention and investigation measures by the UK Parliament” [2014] PL 267, at p. 276.

[2] Alexander Horne and Clive Walker, “Lessons learned from political constitutionalism? Comparing the enactment of control orders and terrorism prevention and investigation measures by the UK Parliament” [2014] PL 267, at p. 284.

This content has been updated on March 24, 2020 at 03:20.