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
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
"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 This report discusses those amendments withdrawn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
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
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
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
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.
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
(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
AMENDMENT NO. 145A
30. This amendment is discussed in paragraphs
60 and 61 of the Memorandum, and the Committee sees no need to
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'
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.
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.
1 19th report, HL Paper 75. Back
The Opposition front bench spokesman. Back
Legislation has retrospective effect when it makes a law applicable
to an act or omission which took place before its enactment. Back
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
A member of this Committee. Back
Special Report for Session 1998-99 - The Committee's Work
(HL Paper 112). Back