Select Committee on Delegated Powers and Deregulation Twenty-Seventh Report


TWENTY-SEVENTH REPORT


27 October 1999

By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.

IMMIGRATION AND ASYLUM BILL - GOVERNMENT AMENDMENTS FOR REPORT STAGE


Introduction

1.  The Committee considered this bill in July and the Committee's recommendations (extracted from the 22nd Report) are set out in Annex 1 to this report. The Government's response to this report, printed in Annex 2, accepted some, but not all, our recommendations. The bill was extensively amended at Committee Stage but the Committee was not invited to consider the amendments.

2.  At the start of Report Stage there was criticism of the large number of amendments tabled (over 300), their late tabling and the fact that the Committee had not been consulted about those creating delegated powers. After a short debate (Hansard, 18 October, cols. 747 to 750) the following suggestion by Lord Falconer of Thoroton, speaking on behalf of the Government, was accepted:-

    "Any provision which should have gone to the Delegated Powers and Deregulation Committee we debate today and on the second day of the report stage. The Government will then formally withdraw the amendment so that it is not on the face of the bill. That will ensure that the [Committee] will have an opportunity to consider it between now and Third Reading. We will not then be deprived of two debates in relation to it."

3.  This report discusses those amendments withdrawn under this agreement and one or two amendments which were agreed but which contain delegated powers.

4.  The Home Office has sent the Committee a "Supplementary Memorandum" which "identifies those amendments which confer new powers to make delegated legislation" and provides a justification of each. This is printed as Annex 3 to this report. In that memorandum and in this report amendments are referred to by their numbers in the marshalled lists for Report.

5.  The Committee also received written evidence from the Immigration Law Practitioners' Association. The Committee has considered that evidence, but sees it as going more to the merits of the proposals than to the Committee's remit. The evidence is printed as Annex 4 to this report.

Reporting on amendments

6.  In our Special Report on the Committee's work during the 1998-99 session, which was also ordered to be printed today, the Committee commented on the procedure of reporting on amendments, in general terms. For the convenience of those involved in the present bill we repeat some of those comments here.

7.  Reporting on amendments raises certain issues of which the House may wish to be aware. Firstly, amendments are much more of a moving target than the second reading print of a bill, on which the Committee normally reports. Several hundred Government amendments may be tabled to a Government bill, over a period of days or even weeks. So the volume of paper is both greater and less manageable. Secondly, the timescale between the tabling of amendments and their consideration by the House is often tight. Just as this creates difficulties for front-bench spokesmen and individual members of the House, so too it can make it hard for the Committee to be properly informed and advised and thus to be able to report at short notice, although we have always managed to do so when required.

8.  For the future, we commend to the House the procedure followed by Baroness Hollis of Heigham, the Minister in charge of the Welfare Reform and Pensions Bill in the House of Lords. In this instance the Minister wrote to the Chairman drawing the Committee's attention to Government amendments which would either introduce new delegated powers or affect delegated powers currently in the bill. The Minister's letter set out the Government's case for the amendments. This procedure enabled the Committee to consider the amendments and agree a report on them[1] so that its views were known when the House considered the amendments at Committee (or Report) stage.

9.  In addition, it is clearly helpful if the Committee has advance warning when front-bench spokesmen are intending to state on the floor of the House that they believe that the House would benefit from its views. This can most conveniently be done by writing to the Chairman, copying the letter to the Committee clerk. It is normal practice with other Select Committees for all formal correspondence to the Chairman to be copied to the Committee Clerk, and we hope that this practice will be adopted for the Delegated Powers and Deregulation Committee in the future.

10.  The House may also wish to note that the Committee has only considered Government amendments. More often than not, when Opposition or back-bench amendments are accepted by the House they are later subject to drafting amendments tabled by the Government using the legal resources available to it. If the House so wished, this would provide an opportunity for the Committee to comment at a later date.

AMENDMENT NO. 4

11.  This amendment to clause 4 ensures that people in this country who seek asylum (or protection under Article 3 of the E.C.H.R.) do not have to pay charges for their applications. It gives effect to a recommendation of the Committee and the Committee welcomes it. The amendment uses the term "dependant" and this has "such meaning as may be prescribed" (amendment 6).

AMENDMENT NO. 6

12.  This amendment was agreed on the first day of Report but is listed in the Home Office Memorandum. Paragraph 7 of that Memorandum explains that there was felt to be a need to consult about the definition of "dependant". Regulations defining the term would be subject to negative procedure. The Committee sees no need to comment.

AMENDMENT NO. 7

13.  The new clause provides that certain people who are the subject of a European Union or United Nations travel ban can be excluded from the U.K. Baroness Williams of Crosby commented (at col. 760) that it was "a new clause of a kind in which one would have thought the [Committee] might be interested as regards a negative procedure on a matter that affects the liberty of movement of a number of people." This is a reference to the power to make orders under subsection (5)(b). Such an order designates the international instruments to which the clause is to apply and may make exceptions to the application of the clause. The designation of an international agreement for the purposes of U.K. enforcement does not always attract Parliamentary control, let alone affirmative procedure and the additional power to prescribe exceptions is in favour of greater freedom and so in the view of the Committee does not increase the case for Parliamentary control. The clause provides only for the order to be laid after being made. The Committee, however, regards the clause as appropriate as it stands.

AMENDMENT NO. 15

14.  This new clause provides that directions for the removal of a person from the U.K. can include provision for the person to be accompanied by an escort. Subsections (2) and (3) allow the Secretary of State to supplement with regulations the general statement in subsection (1). The regulations will deal, in particular, with costs and who is to pay them. The regulations will be subject to negative procedure (clause 160).

15.  Lord Cope of Berkeley[2] in a letter to the Chairman and Lord Avebury (speaking at Report Stage on 18 October, see col. 790) expressed concern that a carrier could be required to pay the cost of providing an escort under this amendment. On this the Home Office memorandum says (paragraph 12) "it is desirable for the Secretary of State to retain an element of flexibility as to the circumstances in which carriers must pay for escorts, and the types of cost which carriers are required to reimburse to the Secretary of State." In our view the policy decision for the House is whether carriers may be required to pay and our task is confined to considering whether, if carriers may be required to pay, it is appropriate that the detailed rules should be set out in delegated legislation subject to negative procedure. The Committee sees no reason to regard this as inappropriate.

AMENDMENT NO. 20

16.  This amendment was agreed on the first day of Report but the Committee mentions it as the Minister, Lord Bassam of Brighton, explained (col. 20) that it "seeks to satisfy the concerns of the Committee" (that the time limit for reporting sham marriages should be on the face of the bill). We welcome this.

AMENDMENT NO. 28

17.  This amendment too was agreed on the first day of Report (though it is essentially a power to make regulations about fees for travel documents). The regulations would be subject to negative procedure. Subsection (3) of the amendment makes the power retrospective.[3] The Committee always pays particular attention to retrospective powers, which in principle ought always to be fully justified in any Government memorandum on a Bill.[4] Lord Cope of Berkeley (col. 842) agreed with the Government that the retrospective legislation in the amendment was "a proper use of the power." The Committee does not dissent.

AMENDMENT NO. 30

18.  This amendment was discussed with Amendment No. 29 but was not moved. Lord Goodhart[5] (col. 858) drew attention to the delegated power in subsection (10) and the Attorney General agreed that it was a provision to be considered by the Committee. Amendment No. 268 to clause 160 would make an order under subsection (10) subject to affirmative procedure. The Home Office's Memorandum discusses the memorandum in paragraphs 17 to 21 and explains that it is intended to bring forward an amendment on Third Reading which allows the amendment by order of subsection (4) as well as subsection (3). The power to amend would allow the addition of offences or the removal of offences from the list in the new clause to be inserted by this amendment. The new clause provides a defence (based on Article 31(1) of the Refugee Convention) to a refugee charged with an offence listed in the clause. It is plainly unexceptionable to add offences to this list, and this is justified in the Government's memorandum. The memorandum is, however, silent on the case for removing offences. The House may consider that if the Government cannot give a satisfactory justification for this part of the proposal at Third Reading the power should be limited to adding offences, leaving removal to be dealt with by primary legislation if the need arises, or alternatively if the Government have a specific purpose in mind it may be appropriate to circumscribe the width of the power.

AMENDMENT NO. 42

19.  This amendment was agreed on the first day of Report. Paragraphs 22 to 26 of the Memorandum give the background to the clause and the Committee sees no need to comment.

AMENDMENT NO. 47

20.  This is another amendment agreed on the first day of Report. The Memorandum deals with it in paragraphs 27 to 29 and the Committee sees no need to comment.

AMENDMENT NO. 58

21.  This is another of the amendments creating delegated powers which were agreed on the first day of Report. As there was no discussion of the amendment and as it is important and properly subject to affirmative procedure, the Committee thought it appropriate to set out the background to it, although we see no need to comment.

22.  The new clause allows regulations to make new provision about applications for bail in immigration cases. The regulations may confer a right to be released on bail in circumstances prescribed in the regulations. The regulations must provide that an application for bail made by an appellant is heard by the appellate authority hearing that appeal. Subsection (5) requires the Secretary of State to make provision similar to that made in the bill in relation to references to the court under section 38. Subsection (6) provides that regulations require the approval of the Lord Chancellor.

23.  The Committee considers that the Home Office Memorandum provides a strong defence of the amendment in paragraphs 30 to 35.

AMENDMENTS NOS. 123 AND 124

24.  Amendment No. 123 introduces the new Schedule which Amendment No. 124 inserts before Schedule 8. Essentially the Schedule is a framework for regulations to be made by the Secretary of State supplementing clause 90 (persons for whom support may be provided). The importance of the regulations can be seen from some of the cross headings - "whether a person is destitute", "prescribed levels of support", "provision of items and services", "support or discontinuance of support", "notice to quit". The regulations will be subject to negative procedure (clause 160).

25.  Baroness Williams of Crosby said (at col. 1167) that "In our view, [the matters covered by the new Schedule] should not lie in secondary legislation. If they do, at the minimum they should be subject to the affirmative procedure." replying for the Government Lord Williams of Mostyn accepted that the Committee should have the opportunity to look at the amendment.

26.  The Committee considered whether the importance of the subject matter made it appropriate that affirmative rather than negative procedure should apply. In our view the Memorandum justifies most of the new powers and the negative procedure in paragraphs 36 to 41. We are, however, concerned about paragraph 2(2) of the new Schedule which allows regulations to provide that "in such circumstances (if any) as may be prescribed, a person is not to be treated as destitute for the purposes of Clause 90 (persons for whom support may be provided). The House may wish to consider removing or limiting this wide power if the Government do not provide a persuasive justification for it.

27.  In respect to the other powers, paragraph 36 points out that "Most of these powers are currently to be found in clause 93 (which is to be deleted - see amendment 58) which has been considered by the Committee". The extension to the powers made by the amendment does not require the Committee to revise its decision on the powers in clause 93 and the negative procedure applying to those powers.

AMENDMENTS 125 TO 144

28.  These are amendments to Schedule 8, which contains interim provisions about support for asylum-seekers and their dependants. The interim period begins when a commencement order brings into force paragraph 1 of the Schedule and ends on the day clause 90(1) comes into force and makes permanent provision for such support. Regulations under Schedule 8 are subject to negative procedure (clause 160). We do not see any of these amendments as changing the nature of Schedule 8 powers, and therefore consider that there is nothing here on which we need to comment. Paragraphs 42 to 51 of the Memorandum provide a general guide to the new provisions and paragraphs 52 to 59 deal in greater detail with amendments 135 and 136.

29.  Baroness Williams of Crosby (col. 1206) spoke of amendments 135 and 136 as "powers to regulate, which directly affect people's lives" and asked for the views of the Committee. Lord Cope of Berkeley (col. 1205) had earlier said that it would be wise for the Committee to look at the amendments but he did not express any view on them. The Committee has considered the amendments carefully, but sees no need for the Committee to comment on them.

AMENDMENT NO. 145A

30.  This amendment is discussed in paragraphs 60 and 61 of the Memorandum, and the Committee sees no need to comment further.

AMENDMENT NO. 155

31.  This amendment converted a power (subject to affirmative procedure) to amend subsections (1) or (2) of what is now clause 95 into a power to repeal all or any of subsections (1)(a), (1)(b) and (2)(a). Lord Williams of Mostyn informed the House that the amendment arose from the Government's reconsideration following the Committee's comments on this Henry VIII power. We welcome it accordingly.

AMENDMENTS 165, 166, 167 AND 170

32.  These are all amendments to clause 97. While the establishment of reception zones by order under clause 97 has proved controversial the clause already provides for the consultation with local authorities, which the Committee recommended in July, and the Committee sees no need to comment further.

33.  The Memorandum discusses amendments 165 (paragraphs 62 to 64) and 166 (paragraph 65).

AMENDMENT NO. 175

34.  This is an amendment to clause 99 which confers rights of appeal when the Secretary of State rejects an application for support under section 90 or decides to stop providing support which has been provided under that section. The amendment allows regulations to provide a right of appeal from decisions under section 90 as to where support is to be provided. Regulations will be subject to negative procedure (clause 160). As this is an additional right of appeal, the Committee does not consider it inappropriate that it should be left to regulations subject to negative procedure.

AMENDMENT NO. 186

35.  This amendment extends the regulation making power in clause 111 (exclusion from benefits of persons subject to immigration control). At present regulations under subsection (3) (which are subject to negative procedure) may nullify the exclusion in the clause in relation to a person who falls within a prescribed category or description or satisfies prescribed conditions. That is an "all or nothing" power and the effect of subsection (3A) would be to allow similar provision to be made but in relation to one or more of the benefits listed in subsection (1). As this may be seen as a relaxation of the existing restriction in the clause, the Committee sees no need to comment.

AMENDMENTS NOS. 226 AND 228

36.  These amendments to clause 139 provide for the period during which fingerprints taken under clause 137 may be retained to be prescribed by order rather than the ten year period specified in subsection (1). Amendment 270 (to clause 160) attracts affirmative procedure. The Committee considers that the provision of affirmative procedure makes the power appropriate.

AMENDMENT NO. 236

37.  Clause 148 provides for the appointment of Visiting Committees for detention centres (places used solely for the detention of detained persons but which are not short-term holding facilities or prisons). The existing subsection (3) provides that detention centre rules (subject to negative procedure) may require members of the Visiting Committee to pay frequent visits, to hear complaints and to report to the Secretary of State "any matter which they consider it expedient to report." The amendment requires similar provision to be made in the rules. The Committee sees no need to comment.

AMENDMENT NO. 255

38.  This new clause is concerned with short-term holding facilities (which are defined in clause 143 as "places used solely for the detention of detained persons for a period of not more than seven days or such other period as may be prescribed"). The clause allows regulations to apply to such facilities any provision relating to detention centres in Part VIII of the bill (other than clause 146). It also allows the making of rules to regulate such facilities. This appears to be a natural extension of the bill. The regulations and rules will be subject to negative procedure (clause 160). There is nothing here on which the Committee wishes to comment.

AMENDMENT NO. 267

39.  This new clause amends the Immigration Act 1971 to enable regulations to establish procedures for applications under that Act. The new clause applies negative procedure. There is nothing here on which the Committee wishes to comment.

AMENDMENT NO. 289

40.  Schedule 13 to the bill is the minor and consequential amendments Schedule and this amendment makes amendments to the Immigration Act 1971. The Supplementary Memorandum from the Home Office (paragraphs 89 to 94) explains the purpose of the amendment. The amendment is closely linked with Amendment No. 1 (which does not contain a delegated power) and was first discussed with that amendment at the beginning of Report Stage. Lord Cope of Berkeley said then (at col. 754) that under amendment 289 the Secretary of State would have power to require individuals to remain at a centre (provided under Amendment No. 1) and not let them out at all. When Amendment No. 289 was reached it was withdrawn to allow the Committee to consider it. Viscount Astor was concerned that the amendment would produce a form of open prison for those released from detention (col. 1279).

41.  The part of the amendment which has given rise to concern is the new Sub-paragraph (2C) which it adds to paragraph 21 of Schedule 2 to the 1971 Act. That allows regulations to include provisions:

    (a)  prohibiting residence in a particular description of accommodation;
    (b)  prohibiting residence in a particular area;
    (c)  requiring residence in accommodation provided under the bill or in accommodation of a prescribed description;
    (d)  prohibiting the person's absence from his accommodation except in accordance with restrictions imposed on him.

42.  It is (c) and (d) which cause the greatest concern involving as they do substantial interference with an individual's freedom, (d) amounting to a power to impose house arrest. The Home Office Memorandum discusses the amendment in paragraphs 89 to 94 which recognise that this is a sensitive area and that appropriate safeguards are needed. The Memorandum sees those safeguards in the negative procedure provided, in the Human Rights Act 1998 and in the fact that the regulations and individual applications of conditions may be challenged by judicial review. The Committee has considered whether further safeguards should be written into the bill. For example the Memorandum says that it is only desired to confer this power on immigration officers to the extent that it is reasonably necessary to do so: would it be possible to write this restriction into the amendment? The only justification given in the Memorandum which is relevant to the prohibition on leaving accommodation is that the amendment will enable residence conditions to be imposed to avoid public order disturbances. If the power is needed for that purpose only, could this be made explicit in the amendment?

43.  The Committee has given anxious consideration to this amendment and the disturbing possibilities it raises. The Human Rights Act 1998 should provide a safeguard against abuse, but it is unsatisfactory to have to leave it to asylum seekers who might be affected by these powers to mount a challenge under this Act. The Committee therefore considers that there should be some limitations on the scope of the power. This could be achieved either by including in the bill the purpose for which it is to be used, as indicated in paragraph 42 above or, if there is a potential further purpose, placing on the face of the bill the limitation that the power may only be used where it is "reasonably necessary" . In any case, the Committee invites the House to consider whether the regulations under the amendment should be made subject to affirmative procedure, thereby enabling Parliament to ensure that the regulations do not go further than ministers' stated intention.

AMENDMENT NO. 312

44.  This is an amendment to Schedule 12 to the bill which contains transitional provisions. It provides that the Secretary of State may by order modify Part VII of the Housing Act 1996 (homelessness) in its application during the interim period. An order will be subject to negative procedure, and the Committee sees no need to comment.

RECOMMENDATIONS

45.  The Committee has invited the House to consider whether the power in amendment No. 30 to remove offences from the list in that amendment is justified and has similarly invited the House to consider the case for retaining paragraph 2(2) in the Schedule inserted by amendment 124. The Committee has suggested that the power conferred by Amendment No. 289 should be subject to further limitation on the face of the bill, and should also be made subject to affirmative rather than negative procedure. There is nothing else in the Government's amendments tabled for Report stage which we wish to draw to the attention of the House. We comment more fully on the procedural issues raised by our reporting on amendments in our Special Report of this session, which was also ordered to be printed today.[6]


1   19th report, HL Paper 75. Back

2   The Opposition front bench spokesman. Back

3   Legislation has retrospective effect when it makes a law applicable to an act or omission which took place before its enactment. Back

4   The Home Office's otherwise admirable memorandum, produced overnight at the Committee's request, relies on the fact that the case for the retrospectivity in amendment No. 28 had been explained on the floor of the House. Back

5   A member of this Committee. Back

6   Special Report for Session 1998-99 - The Committee's Work (HL Paper 112). Back


 
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