GOVERNMENT RESPONSE TO THE COMMITTEE'S 22ND REPORT
ON THE IMMIGRATION AND ASYLUM BILL
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
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
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
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
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
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.