Select Committee on Delegated Powers and Deregulation Twenty-Seventh Report




1.  This memorandum responds to the recommendations contained in the 22nd Report (HL Paper 85) of the Select Committee in relation to the Immigration and Asylum Bill. As the Committee noted, the Bill is large and touches on many aspects of immigration and asylum. Some measures replace existing legislation, for example on carriers' liability and appeals, and so re-enact a number of existing delegated powers.

2.  It is, therefore, inevitable that the Bill should contain a substantial number of delegated powers. The Government's approach throughout the passage of the Bill has been to try to strike a balance, having regard to the significance of the relevant provisions, between those measures which should be in the face of the Bill and those which should be delegated and, in the case of the latter, to whether the affirmative or negative procedure would be appropriate. On this basis, some changes to the Bill were made in the Commons. Having considered carefully the Select Committee's report, the Government's view on each of the recommendations is set out in the following paragraphs.

    Recommendation 1: We consider, however, that clause 4 should be amended to place on the face of the Bill the exemption from fees of asylum-seekers under the 1951 Refugee Convention and those claiming Article 3 ECHR protection.

3.  As the Committee noted, the Government has already given firm commitments that a fee would not be imposed on those claiming asylum or protection under Article 3 of the ECHR. The Government is, therefore, content to accept the Committee's recommendation on this matter and will table an amendment for this purpose.

    Recommendation 2: A further amendment should insert a provision to clause 4 that no fee should be chargeable in respect of an application where it has been occasioned by a mistake of the Secretary of State.

4.  The Government's memorandum indicated that there were likely to be a number of circumstances in which the rules might provide that no fee was payable for an application. One such example was where the application was the result of a mistake of the Secretary of State. The Government does not believe that it is necessary to deal with this particular example in the face of the Bill. Such provisos are not generally included in primary legislation. We shall ensure that when fee regulations are made, they include appropriate provision to deal with errors which may occur.

    Recommendation 3: The House may wish to consider amending the Bill to remove the power [clause 20(3)] insofar as it relates to the time limit, and to place on the face of the Bill a requirement that a registrar should report any suspicion "forthwith", or "within a reasonable time".

5.  The Government agrees that the time limit for reporting suspicions should be on the face of the Bill. The Government will table an amendment to provide a time limit and to retain provision for the form and manner of reports to be prescribed in regulations.

    Recommendation 4: The Committee is concerned by the width of clause 64(3). The explanatory notes and memorandum state the likely use of the power, but the House may wish to consider whether the Bill should be amended to place the categories concerned on the face of the Bill, leaving the regulations to make any necessary adaptation.

6.  The Government accepts that the Bill should be amended to put the categories concerned on the face of the Bill, but with a power to adapt the categories by regulation as the Committee proposes. The Government will table amendments for this purpose.

    Recommendation 5: In view of the importance of the powers in Part VI of the Bill, we would consider it appropriate if they were subject to the affirmative procedure, and recommend the amendment of the Bill to this effect.

7.  The aim of this part of the Bill is to create a coherent, national system for the support of asylum seekers which is separate from the normal benefit system. The Bill sets out the principles of the scheme but, as with other primary legislation dealing with benefit systems, leaves a good deal of the detail to secondary legislation. The Committee considered that clauses 85 to 88 were at the core of the provisions of Part VI. The Government assumes that it is only the powers in these clauses, not all the powers in Part VI, which the Committee intended should be subject to the affirmative procedure.

8.  The Government has reconsidered the powers in clauses 85 to 88 in the light of the Committee's recommendation. Although the provisions of this part of the Bill are clearly important, each of the powers is intended to deal with matters of detail which are generally subject to the negative procedure in other similar legislation. For example, most of the provisions on entitlement to social security benefits are made by negative resolution under the Social Security Contributions and Benefits Act 1992. Moreover, some of the powers, such as those in clause 86(4), may in some circumstances have to be exercised very quickly and when Parliament is not sitting so make the negative procedure more appropriate. The Government believes that a decision about the use of the affirmative or negative procedure must depend upon the nature of each power rather than the subject matter of a group of clauses. The Government remains of the view that the powers in clauses 86(5) and 87(3) should, on their merits, be subject to the affirmative procedure, but that such procedure is not justified for the other powers in clauses 85 to 88.

    Recommendation 6: We question the need for clause 85(2), which would enable the Secretary of State to remove this lynchpin of support from those who, in the words of clause 85(1) are "destitute or … likely to become destitute", and recommend its deletion from the Bill, or at the very least that the circumstances under which the power may be exercised are set out on the face of the Bill.

9.  The Government's memorandum explained that there were certain limited circumstances in which it might be necessary to exclude persons from the support arrangements in Part VI of the Bill even though they were asylum seekers. The main category is those who are entitled to social security benefits by virtue of being EEA nationals or citizens of states that have ratified the European Convention on Medical Assistance. There may in due course be other similar categories where it will be essential to exclude asylum seekers from support under Part VI because they are eligible for other benefits. The Government's memorandum also noted that the process of consultation on other aspects of the scheme might identify other categories of case to be excluded, such as the intentionally destitute.

10.  The Government believes that it is essential to retain the power in clause 85(2) in order to deal with these cases or any others which might result in asylum seekers having access to two benefit systems. It is not possible to set out in the face of the Bill all the circumstances in which the power might be exercised because that may depend on events which cannot at present be foreseen.

    Recommendation 7: A power to amend subsections (1) and (2) [of clause 87] would not cause concern if it were limited to making changes which gave greater choice to the supported person but the power is not so limited. The House may think the power in clause 87(3) as presently drafted amounts to inappropriate delegation and wish to consider amending the Bill accordingly.

11.  Clause 87(1) and (2) set out in the face of the Bill the matters which the Secretary of State must, or must not, have regard to in the provision of accommodation. The clause gives effect to the Government's clearly stated policy that accommodation is to be provided on a national basis and offered on a "no choice" basis. The Government believes that it is right to set these matters out in the Bill, but that it is equally important to retain the flexibility to amend these provisions if necessary in the light of practical experience of the new scheme. Any such amendment will be subject to the affirmative procedure for which the Bill already provides. However, in the light of the Committee's report, the Government proposes to limit the scope of clause 87(3) to the repeal of clauses 87(1)(a), 87(1)(b) and 87(2)(a). The Government will introduce suitable amendments for this purpose.

    Recommendation 8: The House may wish to consider whether the Bill should be amended to place a statutory obligation on the Secretary of State to consult local authorities before making regulations under clause 92(8), as is already the case with orders under clause 92(1).

12.  The Government accepts this recommendation and will table an appropriate amendment.

    Recommendation 9: [Clause 95] The Committee invites the House to consider whether the fact that appeals are from decisions of the Secretary of State does not make it more appropriate that his rules should be subject to affirmative procedure.

13.  Clause 95 provides a power to make rules regulating the bringing of appeals against a decision that an applicant does not qualify for support and regulating the practice and procedure of adjudicators. It is usual for rules in such circumstances to be subject to the negative procedure. The Government believes that the provision in paragraph 78 of Schedule 13 of the Bill for such rules to be subject to scrutiny by the Council on Tribunals provides an appropriate safeguard against the concern expressed by the Committee.

    Recommendation 10: [Clause 143] The Committee invites the House to consider whether it would not be more appropriate for the [Detention Centre] rules to be subject to affirmative procedure (clause 154(5) provides negative procedure).

14.  Detention centre rules, which must be made by the Secretary of State under clause 143, are intended to provide a statutory framework covering all aspects of the management and administration of detention centres. The aim of the rules will be to ensure that detainees are held in a safe, secure and humane environment

15.  It is proposed to follow identical Parliamentary procedures in the context of the making of detention centre rules to those used for rules made in the prison context. It would be inconsistent with the long established and accepted procedure for the making of comparable rules in relation to prisons, young offender institutions and secure training centres, under section 47 of the Prison Act 1952, all of which are subject to negative resolution (see section 52(2) of the Prison Act 1952 and section 66(4) of the Criminal Justice Act 1967), for the rule-making power under clause 143 to be subject to affirmative procedure. Indeed, it is worthy of note that, although the power to make prison rules was originally subject to affirmative procedure, the position was changed by Parliament under the Criminal Justice Act 1967 so as to make the power subject to negative procedure. The frequency with which amendments have had to be made to such rules (for example the Prison Rules were amended 25 times between 1968 and 1998, and the YOI rules have been amended with similar frequency since 1988), a frequency which will possibly need to be repeated in the context of detention centre rules, in particular argues for a negative procedure.

16.  There does not appear to be any special reason associated with immigration detainees, or the width of the relevant rule-making powers, for treating detention centre rules differently from prison rules; indeed it would be surprising to do so, bearing in mind that some immigration detainees may be detained in prisons rather than in immigration detention centres. It is true that the rules may potentially affect the human rights of detainees, but there will in future be an additional safeguard in relation to the exercise of the rule-making power, in that it will be subject to the provisions of the Human Rights Act.

17.  The Select Committee have specifically pointed out that detention centre rules have greater importance as it will be their function to control the exercise of the power of detainee custody officers to search detainees. This anxiety is misplaced. The powers of detainee custody officers, which include well-defined powers of search, are laid out on the face of the Bill as are the provisions for contract monitors, escort monitors, Visiting Committees and independent inspection which offer objective and independent scrutiny of the way in which detainee custody officers carry out their functions. The rules are only intended to set out the procedure which will govern the manner in which such powers are exercised. The rules will present us with an opportunity to set out in statute the constraints which are already in place under the terms of detention centre contracts. The rules will set out the constraints in exactly the same way as prison rules do in the context of search powers of prisoner custody officers.

18.  For all these reasons, the Government believes that negative resolution procedures provide an appropriate level of Parliamentary scrutiny and provide the necessary symmetry with the procedure for prison rules.

    Recommendation 11: We have also recommended the amendment of the Bill to provide for the affirmative procedure for those powers which raise ECHR concerns. Although the Minister has certified that, in his view, the Bill as a whole is compatible with ECHR, we further recommend that when the House has to consider a resolution approving an instrument under any of these powers, the Minister moving the resolution should inform the House whether he is satisfied that the instrument is compatible with the Convention rights. Such statements will be particularly important prior to the establishment of the Parliamentary Select Committee on Human Rights. We draw the attention of the House to the recommendation which we have made in our written evidence to the Royal Commission on House of Lords Reform that the terms of reference of that Committee should include the scrutiny of the compatibility of secondary legislation, where much potential incompatibility may lie.

19.  The earlier paragraphs of this memorandum record the Government's views on recommendations for use of the affirmative procedure in relation to specific provisions of the Bill. The use of the affirmative procedure should, in the Government's view, be reserved for those powers which on their merits require closer parliamentary scrutiny. ECHR considerations may be a relevant factor in deciding whether the affirmative procedure is justified, but may not be the only or main one.

20.  In the case of those powers which, for whatever reason, are subject to the affirmative procedure, there is an opportunity for the Minister introducing the debate to comment upon any relevant ECHR compatibility issues or for members of either House to raise such issues. The Government believes that, as with the use of the affirmative procedure itself, the need for the Minister to comment on ECHR compatibility should depend upon the particular circumstances. It is likely that Ministers will wish to deal with any compatibility issues if the ECHR implications of particular measures are significant. In addition, there are already a number of safeguards contained in the Human Rights Act 1998 to ensure the compatibility of secondary legislation. Under the Act the courts can strike down and disapply secondary legislation which they hold to be incompatible with the Convention rights. It will be unlawful for public authorities, which includes Government departments, to act in a way which is incompatible with the Convention. The Act also establishes a duty to interpret all legislation compatibly with the Convention rights.

    Recommendation 12: Related to this is our concern about the arrangements for parliamentary control over the making of Immigration Rules. This has led us to recommend that the House should consider amending the Bill to make Immigration Rules subject to affirmative procedure.

21.  Immigration Rules are statements of the practice to be followed in the administration of immigration legislation and are, under section 3(2) of the Immigration Act 1971, made by the Secretary of State subject to a special form of negative procedure. The Rules are made by him and he is required to lay a statement of the changes in the Rules before Parliament. If such a statement is disapproved by resolution of either House within 40 days of laying, the Secretary of State is required to make such changes or further changes as appear to him to be required, such further statement having to be laid before Parliament within 40 days of the date of the resolution.

22.  Immigration Rules are thus rules of practice and deal with very detailed matters such as the length of leave which is normally given to visitors in particular categories. Only a small proportion of the rules deal specifically with the arrangements for handling asylum claims, and a good deal of that is drawn from elsewhere. They also are in part guidance to those who have to administer the legislation. The Secretary of State and others administering the legislation retain discretion to act outside the rules in exceptional cases.

23.  It is sometimes necessary to make small or technical changes to the Rules which are widely accepted and need no further explanation. In other cases, changes have to be made very quickly indeed, for example, where a new visa requirement is imposed. Such changes have to be made with little or no advance notice and may be required when Parliament is not sitting.

24.  The Rules and the arrangements for their making have worked well. If a member of either House is concerned about draft Rules changes which have been laid before the House, he or she has an opportunity to secure a debate about them and a vote on their approval. But where there are no such concerns there is no need for a debate and one need not take place. As with all other secondary legislation, the safeguards in the Human Rights Act 1988 will apply and the Rules will be susceptible to challenge on the basis that they contravene the Convention rights.

25.  For all these reasons, the Government believes that the current Parliamentary procedures for scrutiny of the Immigration Rules strike the right balance. There is an opportunity to debate rule changes if they are significant, but there is no requirement to do so for minor alterations. The current procedure also enables changes to be made quickly if necessary to maintain the integrity of the immigration control.

Home Office

July 1999

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