Select Committee on Delegated Powers and Deregulation Twenty-Second Report


ANNEX

IMMIGRATION AND ASYLUM BILL
Memorandum by the Home Office

PART III: BAIL

CLAUSE 36(14): POWER TO MAKE RULES RELATING TO ROUTINE BAIL HEARINGS BEFORE THE SPECIAL IMMIGRATION APPEALS COMMISSION
Power conferred on: The Lord Chancellor
Power exercisable by:Statutory instrument
Parliamentary procedure:Draft affirmative (each House of Parliament)
Other relevant provisions:Clause 36 of the Bill and section 3 and section 5 of the Special Immigration Appeals Commission Act 1997

157.  The Special Immigration Appeals Commission Act 1997 established the Special Immigration Appeals Commission ("the Commission") and gave it jurisdiction to hear appeals from those subject to exclusion, removal or deportation from the United Kingdom on public good or national security grounds. Section 3(2) of the 1997 Act gave the Commission jurisdiction over questions of bail as regards persons detained under the Immigration Act 1971 in national security-related cases. Under section 5 of the 1997 Act, the Lord Chancellor has power to make rules concerning, inter alia, the practice and procedure to be followed on appeals to the Commission and in relation to certain other preliminary or incidental matters, including questions of bail under section 3.

158.  Clause 36(12) provides that routine bail hearings are, in any case where a person falls within section 3(2) of the 1997 Act, to be heard by the Commission. Subsection (14) provides that rules made by the Lord Chancellor under section 5 of the 1997 Act may include provision made for the purposes of routine bail hearings under clause 36 and that reference to "rules" in subsections (4), (5) and (8) of clause 36 means rules made by virtue of subsection (14).

159.  It is submitted that it is appropriate for rules regulating routine bail hearings before the Commission to be made by way of delegated legislation because of the complex nature of those rules and so as to be consistent with the rule-making provisions governing, inter alia, applications for bail under the 1997 Act and routine bail hearings before magistrates and adjudicators.

160.  It is submitted that the affirmative resolution procedure is appropriate for this rule-making power because of the sensitivity surrounding national security related cases and so as to reflect the fact that rules regulating other aspects of the work of the Commission under the 1997 Act are similarly made by way of affirmative resolution procedure.

CLAUSE 37(1): POWER TO MAKE DIRECTIONS AS TO WHERE ROUTINE BAIL HEARINGS ARE TO BE HELD
Power conferred on: The Secretary of State
Power exercisable by:Direction
Parliamentary procedure:None
Other relevant provisions:Clause 36 of the Bill and paragraph 18 of Schedule 2 to the Immigration Act 1971

161.  Clause 37(1) allows the Secretary of State to direct that, in relation to a particular case or class of case, a routine bail hearing is to be held at a specified place. Sub-clause (2) provides that the places that may be specified in a direction made under sub-clause (1) include, inter alia, courtrooms, detention centres, prisons or Immigration Appellate Authority hearing centres. Sub-clause (3) provides that a direction made under sub-clause (1) shall have effect notwithstanding any other direction which might be given as to the place in which the court is to sit. Thus, for example, a magistrate may, pursuant to a direction given under clause 37, be required to hold a routine bail hearing at a detention centre in circumstances where the appeal of the person concerned must be heard elsewhere.

162.  It is submitted that it is appropriate for such powers to be provided by way of delegated legislation so as to allow the Secretary of State to adopt a flexible approach as regards where routine bail hearings may be held. New directions may be required at short notice in order to reflect movements of the immigrant detainee population pursuant to new directions made under paragraph 18 of Schedule 2 to the 1971 Act as to where such that population may be detained. It is further submitted that it is appropriate to provide the Secretary of State with power to make directions in this regard as the places in which persons may be detained are themselves subject to the direction-making power contained within paragraph 18 of Schedule 2 to the 1971 Act. Sufficient safeguards are provided in relation to the exercise by the Secretary of State of his powers under clause 33 by requiring that any direction made is approved by the Lord Chancellor.

CLAUSE 39(4): REGULATIONS GOVERNING ACCOUNTS FOR, AND PAYMENTS OF, SUMS COLLECTED FOLLOWING FORFEITURE OF RECOGNIZANCES BY MAGISTRATES' COURTS
Power conferred on: The Lord Chancellor
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 154 of the Bill

163.  Clause 39 provides any court which has taken a recognizance as a condition of routine bail with powers by order to declare such recognizances to be forfeited and to order payment of such sums as the court thinks fit. Sub-clause (2) provides that, if the court which makes the order under sub-clause (1) is not a magistrates' court, it must specify a magistrates' court which is, for the purposes of collection, enforcement and remission of the sum forfeited, to be treated as the court which ordered the forfeiture.

164.  Sub-clause (4) allows the Lord Chancellor, with the approval of the Treasury, to make regulations governing the times at which and manner in which accounts for, and payments of, sums collected by magistrates' courts under sub-clause (2) must be made and for the keeping and auditing of accounts in relation to such sums. It is submitted that it is appropriate for detailed provision about payment of, and accounts for, sums collected under clause 35 to be made by way of delegated legislation due to the likely complexity of the regulations concerned.

165.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure provides an appropriate level of Parliamentary control as only those sums lawfully collected under clause 39 will be covered by the power and, in any event, regulations may only be made by the Lord Chancellor under clause 39(4) with the approval of the Treasury.

CLAUSE 41(1): RULES OF PROCEDURE AND PRACTICE TO BE FOLLOWED IN BAIL HEARINGS BEFORE MAGISTRATES' COURTS
Power conferred on: The Lord Chancellor
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Part III of the Bill and section 144 of the Magistrates' Courts Act 1980

166.  Section 144 of the Magistrates' Courts Act 1980 allows the Lord Chancellor, on the advice of or after consultation with the Rule Committee for magistrates' courts, to make rules for regulating and prescribing the procedure and practice to be followed in magistrates' courts. That power is exercisable by statutory instrument and is subject to the negative procedure. Clause 41(1) requires that any rules made under section 144 of the Magistrates' Courts Act 1980 will include provision requiring the Secretary of State to notify detained persons and their representatives of the date, place and time of routine bail hearings to be heard by magistrates' courts.

167.  It is submitted that it is appropriate for detailed provision about notification of routine bail hearings to be made by way of delegated legislation because such provision forms a logical constituent of the rules which may be made generally by the Lord Chancellor as regards procedure and practice to be followed in magistrates' courts under section 144 of the Magistrates' Courts Act 1980. Clause 41(1) is designed to ensure that appropriate safeguards are provided to detained persons in those rules.

168.  Rules under section 144 of the 1980 Act are subject to annulment by either House. The present provision simply extends that existing rule making power. It is submitted that the negative procedure provides an appropriate level of Parliamentary control for rules of this kind, given the detail involved.

CLAUSE 43: POWER TO PROVIDE FOR CERTAIN BAIL APPLICATIONS TO BE HEARD BY MAGISTRATES COURTS
Power conferred on: The Lord Chancellor
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 41 and154(4) of the Bill and paragraphs 22 to 25 of Schedule 2 to the Immigration Act 1971; section 144 of the Magistrates' Courts Act 1980

169.  Clause 43 allows the Lord Chancellor by rules to provide for applications for bail made under current immigration legislation to be heard by magistrates' courts in circumstances where no immigration-related appeal is outstanding. Such applications for bail are generally made under paragraphs 22 to 25 of Schedule 2 to the Immigration Act 1971 and are presently made to adjudicators and immigration officers not below the rank of chief immigration officer. Clause 43 will extend the right to apply for bail before appeal in the case of persons detained pending deportation. Any rules made under clause 43 must include provision as to the places in which hearings may be held by magistrates' courts. They must also secure that those who have brought appeals under the Bill have their bail applications heard by the appellate authority concerned rather than by a magistrates' court and must provide for transferring applications for bail from magistrates' courts to appellate authorities in appropriate circumstances.

170.  It is submitted that it is appropriate for the power to extend magistrates' courts jurisdiction in relation to bail by way of delegated legislation because it is deemed necessary for magistrates to exercise jurisdiction in relation to routine bail hearings under Part III of the Bill before deciding whether to extend their jurisdiction so as to cover applications for bail under existing legislation. The rule-making power will allow the element of flexibility which is therefore needed.

171.  The clause extends the rule making power under section 144 of the Magistrates' Courts Act 1980, under which rules are made subject to annulment by either House (see subsection (4) and clause 41(7)). It is submitted that the negative procedure provides an appropriate level of Parliamentary control, given the limited extent of the power.


 
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