Select Committee on Delegated Powers and Deregulation Twenty-Second Report


TWENTY-SECOND REPORT


7 July 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

INTRODUCTION

1.  "The debate on asylum has been polarised between two extremes: those who oppose all immigration and those who oppose effective immigration controls. All asylum seekers are 'bogus' to one group or almost all genuine to another." This was the way in which the white paper Fairer, Faster And Firmer - A Modern Approach To Immigration and Asylum[1] highlighted the dichotomy which any reform of current Immigration and Asylum law must face. The present bill is an attempt to achieve a balance between the two sides of the debate.

2.  Introducing the Second Reading debate in the House of Lords Lord Williams of Mostyn further underlined this point:

    "We have to strike a series of balances. We must speed up the system, but ensure that all applicants have a fair hearing. We must make the system fairer, but minimise the scope for abuse. We must balance a firm immigration control with our strong commitment to human rights and to race equality. The Bill tries to strike those balances. It represents the most radical reform of immigration and asylum law for decades."[2]

3.  This is a large and controversial bill, containing provisions which touch on all areas of the immigration and asylum system. The special nature of the bill was to some extent recognised in the House of Commons, where the bill was referred to a Special Standing Committee. Furthermore, the Commons amended the bill to provide in a number of instances for the affirmative resolution procedure.

4.  In the House of Lords the Second Reading debate demonstrated that considerable concerns about the bill remain, but also that the Government is open both to considering amendments and to consultation. If the amendments we propose in this report for an increased use of the affirmative resolution procedure are put together with the amendments to this effect already made by the House of Commons, this will mean that the bill as enacted will contain a substantial number of affirmative powers. We consider that this is necessary if there is to be adequate parliamentary control over the exercise of the substantial powers conferred by the bill. The Minister also stated that the Government is introducing into the bill a presumption in favour of bail,[3] but we would expect this presumption to be placed on the face of the Bill and therefore would not anticipate it raising new regulation-making powers.

5.  For the most part, the bill sets out the parameters of principle and these are for debate as part of the primary legislation. But this is not always the case. As Lord Dholakia said during the Second Reading debate:

    "The Bill is a matter of concern to many bodies working on immigration and asylum matters. It provides that the Secretary of State may 'make regulations' or 'may by order make further provision', or in 'such circumstances as may be specified' etc. In many areas the details are missing, as was rightly pointed out by the noble Lord, Lord Cope of Berkeley. The Immigration Law Practitioners Association has identified over 70 areas where there is no such detail."[4]

6.  The Minister in charge of the bill has given his assurance that in his view it is compatible with the Convention rights. But the bill confers many delegated powers which could be exercised in ways which would not be compatible with the Convention rights. We draw attention here to those powers which deal with the most sensitive issues. We invite the House to consider whether the subject matter of these provisions requires Parliament to ensure that the powers are exercised only in ways compatible with Convention rights. We believe that this leads to the conclusion not only that affirmative procedure is needed for a significant number of these powers but also that there should be a specific ECHR safeguard. So 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. We would suggest that, at the very least, the House seeks an undertaking from the Minister that this approach will be adopted in bringing forward secondary legislation which is subject to the affirmative procedure.

7.  There is a related point of concern in the parliamentary scrutiny arrangements for the Immigration Rules. When the 1993 and 1996 legislation was introduced the Draft Immigration Rules were laid before the House at the same time as the primary legislation. This has not happened so far during the parliamentary passage of the present bill. We do not suggest that the Immigration Rules should be included on the face of the bill. But we do consider that the time has come when the House may wish to consider amending the 1971 Act through an amendment to the present Bill to provide that the Immigration Rules, which are of immense importance to asylum seekers, should be made subject to the affirmative resolution procedure.

8.  In regard to the specific powers the Home Office has provided a very full memorandum and the Committee has therefore found it necessary to comment in this report only on those issues which the House may wish to consider in particular depth, rather than listing all the provisions discussed in the memorandum. The House may wish to note that the large number of powers in the bill is in part the result of the decision to re-enact existing powers when up-dating the existing legislation.

CLAUSE 4

9.  Clause 4 provides for a power to prescribe fees to be paid in connection with "after entry" applications. The Bill's explanatory notes (paragraph 48) states that the "current intention is that asylum seekers, and those seeking protection under Article 3 of ECHR, will not be charged". In written evidence to the Committee Justice[5] submitted that "it would be ultra vires the Asylum and Immigration Act 1993 and the Human Rights Act 1998 to do so. Those Acts make it illegal to return (refouler) a refugee under the 1951 UN Convention, or to return a person who faces a real risk of torture or inhuman or degrading treatment under Article 3 ECHR. It would therefore be in contravention of those provisions and obligations if someone potentially facing those risks were prevented, by being unable to find a fee, from making an application to remain on those grounds."

10.  There is clearly considerable concern about the possible human rights implications of the operation of the power under this clause. As we have recently observed in connection with the draft Freedom of Information Bill, the level at which fees are set can have a deterrent effect. The Home Office's memorandum states that the "exceptions are not provided for on the face of the Bill because the precise wording of the exception will, at the margins, require to be adjusted in the light of circumstances and experience." We accept this argument insofar as it relates to "the margins". 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.

11.  The Home Office memorandum states that other circumstances may justify no fee being chargeable in respect of an application, "for example where it has been occasioned by a mistake of the Secretary of State".[6] We agree. It would be so manifestly unjust for a fee to be payable in this circumstance that the House may wish to consider amending clause 4 to include a proviso to this effect.

CLAUSE 20(3)

12.  Clause 20(3) provides that a registrar must report to the Secretary of State a suspicion that a marriage will be a "sham marriage" in such form and manner and within such period as may be prescribed by regulations. This power, which is conferred on the Registrar General, is not subject to parliamentary control. The Committee accepts the case for regulations making procedural provisions for the notification of suspected sham marriages, but not that the Registrar General should have the power to make regulations prescribing a time limit. The House may wish to consider amending the bill to remove the power 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".

CLAUSE 64

13.  Clause 64 introduces a "one-stop procedure", explained in the memorandum, and subsection (3) allows the Secretary of State to apply the clause "in such other circumstances as may be prescribed". Subsection (10) expands subsection (3). The memorandum explains that the intention is to apply a modified form of one-stop procedure to illegal entrants, those liable to be removed under clause 8 and those seeking leave to enter at a port. 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. Clearly the affirmative procedure provided is appropriate.

CLAUSE 74

14.  Clause 74, which is a Henry VIII power, prohibits the provision of immigration advice or services by an unqualified person. "Immigration advice" and "immigration service" are defined in clause 72(1) and clause 72(2) limits the provision of advice or services to provision in the course of a business. Clause 74(2) defines qualified person and one category is a person "who is authorised by a designated professional body to practise as a member of the profession whose members are regulated by that body, or works under the supervision of such a person". There is a list of designated professional bodies in clause 76(1) and the rest of the clause provides for the removal from or addition to that list of particular bodies. The three powers (in subsections (2), (3) and (6)) are all Henry VIII powers. The power in subsection (2) to remove a body from the list against its wishes is subject to affirmative procedure. The other powers are negative but the Committee considers this appropriate as (3) is removal on request and (6) is approval of a legal profession outside the United Kingdom.

PART VI

15.  Clauses 85 to 88 contain numerous powers to make regulations. The clauses are the core of the provisions in Part VI of the bill about providing support for asylum-seekers. At present local authorities have a duty under section 21 of the National Assistance Act 1948 to provide for asylum seekers who have no other means of support. The present bill contains no such obligation. Clause 85(1) merely states that "The Secretary of State may provide, or arrange for the provision of, support for" asylum seekers or their dependants "who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed." The Department's explanatory memorandum (paragraph 208) describes clause 85(1) as "the lynchpin of the asylum support scheme set up by the Bill." Under clause 155(1) "prescribed" means prescribed in regulations made by the Secretary of State. Most of the powers are subject to negative procedure, as follows: clauses 85(1); 85(2); 85(5); 85(7); 85(8); 86(1)(c); 86(4); 87(1); 87(2); 87(4); and 88(1); and Schedule 8 paragraph 1. The only powers in this important Part of the bill which are currently subject to the affirmative resolution procedure are the Henry VIII powers in clause 86(5) and clause 87(3) which we discuss below.

16.  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.

17.  There is obvious concern that the regulations might be used in such a way that the asylum seeker is unable properly to exercise his rights under the relevant Conventions. The Committee is particularly concerned about the power in clause 85(2), which allows regulations to prescribe circumstances in which a person is excluded from getting the support he would otherwise get under clause 85(1). As we have already seen, the Government regards clause 85(1) as the "lynchpin of the asylum support scheme set up by the bill." 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 very least that the circumstances under which the power may be exercised are set out on the face of the bill.

18.  Clause 85(5) provides for regulations to set out criteria for determining whether a person has adequate accommodation and subsection (6) similarly provides for regulations to set out criteria for determining whether a person can meet his essential living needs. Clause 86(1)(c) allows regulations to prescribe expenses incurred in connection with a person's claim for asylum which are not to qualify for support under clause 85. Finally there is the power conferred by clause 88 to make by regulations further provision with respect to his powers under clause 85. These regulations can make provisions which will be of great importance to asylum-seekers (see, for example, subsection (2)(b) (support at other than prescribed levels) and (5) (suspension or discontinuation of support)).

19.  A Henry VIII power in clause 86(5) allows the Secretary of State to repeal by order subsection (3). That subsection provides that support for asylum seekers or their dependants under the clause must not be wholly or mainly by way of payments. The policy is explained in the memorandum. The Committee considers that the delegation of this power is appropriate, as is the affirmative procedure provided for it.

20.  Clause 87(1) and clause 87(2) grant powers (subject to negative procedure) to prescribe matters which the Secretary of State must have regard to and may not have regard to when providing accommodation. These include the fact that the accommodation is to be temporary and the desirability of providing accommodation in areas where there is a ready supply of it. Clause 87(2) provides that the Secretary of State may not have regard to any preference expressed by the asylum seeker (or his dependants) as to the locality of the accommodation.

21.  Clause 87 contains significant powers to prescribe matters to which the Secretary of State must have regard (or must not have regard) when providing accommodation or other support under clause 85 (see clause 87(1)(c), (2)(b) and (4)(a) and (b)). Clause 87(3) is a Henry VIII power which allows the Secretary of State to amend by order subsection (1) or (2). The Department's memorandum states as an example of the possible use of this power that "the Secretary of State would be able to take into account preferences expressed by an asylum seeker as to the locality of the accommodation." It continues, "it is not intended to use this power at present, but it is necessary to leave open the possibility in case, unexpectedly, at some future date the provisions, for example, in relation to locality prove to be unworkable. Given the need to ensure that asylum seekers are appropriately supported, amending primary legislation may take too long. Or it might be that a factor which is proposed as a matter that must or may not be taken into account is of such significance that it should be put on the face of the legislation."

22.  The Committee does not consider the Henry VIII power in clause 87(3) justified. Since subsection (1)(c) allows other matters to be prescribed, the power in subsection (3) to amend subsection (1) is needed only to remove or qualify paragraphs (a) and (b). Similarly the power to amend subsection (3) is needed only to remove or qualify paragraph (a). We find the policy embodied in subsection (2)(a) surprising - why would it be wrong for the Secretary of State to invite a supported person to express his preference when the Secretary of State is able to offer accommodation in several different localities? A power to amend subsections (1) and (2) 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.

23.  Clause 92(1) gives the Secretary of State power to make an order, subject to negative procedure, designating an area consisting of one or more local authorities as a reception zone. Clause 92(2) places an obligation on the Secretary of State to consult before making such an order. The explanatory memorandum goes on to explain that "clause 92(8) puts the Secretary of State under a duty to make regulations concerning the way such [specified] accommodation is to be managed. Clause 92(9) provides that the regulations must include provision for the calculation of rent and other charges, the timing of payment of rent and other charges, responsibility for maintenance and repairs and inspection by the local authority."[7] 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).

24.  Clause 95 provides for the Secretary of State to make rules regulating the bringing of appeals against his decision that an applicant does not qualify for support under clause 85 and regulating the practice and procedure of adjudicators. Among the matters that can be included in the rules are provision as to the burden of proof and the giving and admissibility of evidence. Clause 154(5) makes the rules subject to negative procedure. 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.

CLAUSE 135

25.  Clause 135 allows regulations to make provisions equivalent to clauses 132, 133 and 134 (fingerprinting) in relation to other methods of collecting data about external physical characteristics. The Home Office memorandum states (paragraph 315) that "the new methods of identification will almost certainly, like fingerprinting, amount to prima facie infringements of the right to privacy under Article 8" of the ECHR. Accordingly the Committee sees affirmative procedure as appropriate and this is provided by clause 155(3).

CLAUSE 143

26.  This clause requires the Secretary of State to make rules for the regulation and management of detention centres (defined in clause 137 as places used solely for the detention of persons detained under the Immigration Act 1971). Schedule 10, paragraph 2(1) provides that a detainee custody officer has power "to search (in accordance with rules made by the Secretary of State) any detained person". The reference to rules is presumably to detention centre rules and so makes those rules of greater importance as it will be their function to control the exercise of a power of search and powers of search have led to confrontations in the past. The Committee invites the House to consider whether it would not be more appropriate for the rules to be subject to affirmative procedure (clause 154(5) provides negative procedure).

OTHER AFFIRMATIVE POWERS

27.  For the convenience of the House we list below some of the other powers in the bill, although we make no recommendations about them. There is a higher proportion of affirmative powers than usual, perhaps reflecting the importance of the subject matter of the bill. The powers are in clauses 1, 2, 7, 16, 17, 64(3); 76(2), 86(5), 87(3) and 135 and in paragraph 3 of Schedule 5.

28.  Clause 1 inserts a new section 3A in the Immigration Act 1971. There are order making powers in subsection (1) (extended by subsection (2)) and (3) (extended or qualified by subsections (4) to (13), some of which provisions apply also to subsection (1)).

29.  Clause 2 inserts a new section 3B in the 1971 Act. Subsection (1) is the power and the remaining subsections extend or qualify the power.

30.  Clauses 1 and 2 are vital, as they provide the foundation of immigration controls - the giving of leave to enter (clause 1) and leave to remain (clause 2). It is difficult to see how primary legislation could replace these delegated powers; not only is there a need to respond quickly to changing circumstances, there is also the need to make detailed provision. The Committee therefore considers that delegation is appropriate and that the affirmative procedure provided is essential.

31.  Clause 7(1) requires the Secretary of State to prescribe a period during which those who are overstayers must apply ("in the prescribed manner") for leave to remain in the U.K. The Committee understands this to be a transitional arrangement because at the end of the period clause 8 and paragraph 5 of Schedule 14 come into force and it is no longer possible to apply for leave under clause 7. A person who has applied under clause 7 cannot be removed under clause 8. The memorandum says that delegation is necessary "since it is presently unclear how long the period should be".

32.  Clause 16 allows information held by specified persons to be supplied to the Secretary of State for use for immigration purposes. Subsection (5) allows the Secretary of State to add to those who may supply information and to widen the scope of the term "immigration services". Though not in form a Henry VIII power, it is clearly significant and the Committee considers the affirmative procedure appropriate.

33.  Clause 17 is the converse of clause 16 and allows immigration information to be supplied by the Secretary of State to the persons who can supply information under clause 16. There is a similar power to add persons in subsection (7) and again affirmative procedure is appropriate.

34.  Schedule 5 is concerned with the powers and duties of the Immigration Services Commissioner. Paragraph 2 requires him to issue a code setting standards of conduct for those providing immigration advice or services who are not answerable to a designated professional body (e.g. the Law Society). Paragraph (3) allows the Secretary of State, after consulting the Commissioner, to apply the code (or part of it) to those answerable to a designated professional body. The power is exercisable by order and if the order affects a professional body in England and Wales or Northern Ireland it requires the approval of the Lord Chancellor. If it affects a body in Scotland it requires the approval of Scottish ministers. Again, the Committee considers the affirmative procedure appropriate.

OTHER IMPORTANT POWERS

35.  In addition to those powers on which we have already commented, there are a number of important powers which are subject to negative procedure. In the Committee's opinion in each case delegation is appropriate as is Parliamentary control. Some of the more important negative powers are the following:-

CLAUSE 149

36.  This clause amends the Marriage Act 1949. Subsection (6) inserts new subsections in section 31 of that Act concerned with reducing the waiting period after notice of marriage has been entered by the register. The Registrar General can reduce the period to less than 15 days and he can make regulations under subsection (5D) about the making and granting of applications for a reduction in the waiting period. Those regulations require the approval of the Chancellor of the Exchequer. The regulations are not subject to Parliamentary control (this is the case with all regulations under the 1949 Act). Under subsection (5F) the Chancellor of the Exchequer can by order fix fees for applications. An order is subject to negative procedure (subsection (51)). The Committee considers that both the delegation of the power and the negative resolution procedure are appropriate.

RECOMMENDATIONS

37.  The Committee has made the following recommendations:

38.  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[8] that the terms of reference of that Committee should include the scrutiny of the compatibility of secondary legislation, where much potential incompatibility may lie.

39.  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.

40.  There is nothing else in the bill which we wish to draw to the attention of the House.


1   Cm 4018, July 1998. Back

2   HL Deb., 29 June 1999, col. 177. Back

3   HL Deb., 29 June 1999, col. 252. Back

4   HL Deb., 29 June 1999, col. 189. Back

5   The Chairman is also Chairman of the Trustees of Justice. Back

6   Paragraph 48. Back

7   Department's memorandum, paragraph 277. Back

8   Copies of our submission have been placed in the House of Lords Library. Back




 
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