The Scottish Parliament’s Emergency Bill procedure

In delivering its legislative objective of putting a time limit on Convention rights actions (such as compensation claims for prisoner “slopping out”), the Scottish Government has indicated its intention to make use of the Parliament’s Emergency Bill procedures. Aidan O’Neill QC recently argued (click here to read) that the Government’s proposals on this topic are unnecessarily wide and lack proper public consultation. Setting aside arguments about the merits and wider implications of the Government’s proposals, this article considers the rules for using emergency procedures and reflects on the occasions in the past where emergency procedures have been employed in the Scottish Parliament.

Although the Parliament itself is required to agree to the designation of a bill as an emergency bill, there are no set criteria that determine when the emergency bill procedure may be used. The rules governing the procedure are set out in para 9.21 of the Parliament’s Standing Orders (the Scotland Act 1998 makes no specific reference to emergency procedures).

In summary, these rules provide that any member of the Scottish Executive or a junior Scottish Minister may propose that an Executive bill be treated as an emergency bill. All three parliamentary stages are taken on the same day, and no committee considers or reports on the bill's general principles, the financial memorandum or the policy memorandum. Where amendments are proposed, limited notice is required to be given.

Although opportunity for consultation and scrutiny may be reduced, it is, of course, open to a parliamentary committee to conduct post-legislative scrutiny, and emergency legislation is often revisited once the "emergency" itself has passed or abated.

The Scottish Parliament has used emergency bill procedures on five previous occasions (at Westminster over 30 bills have been fast-tracked over the last 20 years):

• The first bill to be passed by the Parliament, the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, was introduced to close a gap in the existing legislation identified by a sheriff court decision in Ruddle v Secretary of State for Scotland. The 1999 Act was subsequently consolidated as part of the Mental Health (Care and Treatment) (Scotland) Act 2003.
• The Erskine Bridge Tolls Act 2001 was introduced to redress an administrative oversight which led to the Scottish Executive failing to renew an order on tolls for vehicles crossing the bridge. The 2001 Act was repealed in 2008.
• The Criminal Procedure (Amendment) (Scotland) Act 2002 followed the Appeal Court ruling in the case of Reynolds v Procurator Fiscal, Linlithgow. The case was concerned with the law relating to summary criminal procedure in cases where an arrest warrant was granted following the failure of an accused to appear at an intermediate diet. The court held that the granting of a warrant, in such circumstances, did not automatically result in the discharge of the trial diet set in the case. The bill brought the law back into line with what had been common practice prior to the appeal ruling.
• In the second parliamentary session, the Senior Judiciary (Vacancies and Incapacity) (Scotland) Act 2006 made provision for the functions of the Lord President and the Lord Justice Clerk to be carried out by other senior judges when either office is vacant or where the judge in question is unable to carry out the functions of the office because of ill health. The 2006 Act was recently repealed and replaced by the Judiciary and Courts (Scotland) Act 2008.
• Most recently, the Budget (Scotland) (No 3) Act 2009 was passed in the current session using the emergency bill procedure and marked the culmination of the parliamentary budget process for the minority SNP Government.

Emergency procedures for responding to unexpected circumstances exist in many other legislatures. The House of Lords Constitution Committee is currently conducting an inquiry on constitutional issues that may arise when there is resort to emergency legislation at Westminster.

Recent examples of such bills include the Evidence (Witness Anonymity) Act 2008 (to allow anonymous evidence in criminal trials) and the Banking (Special Provisions) Act 2008 (dealing with the failure of Northern Rock). In particular, the committee is examining whether the case for emergency legislation is adequately made, whether the nature of parliamentary scrutiny is adequate in such cases, and whether interest groups are able to lobby and brief parliamentarians satisfactorily in situations where bills have an expedited passage through Parliament. The committee is also asking whether lessons can be learned from the way that other legislatures deal with emergency legislation. The committee’s findings are likely to be of interest to those following the Scottish Parliament’s anticipated use of such procedures.