1.The Committee has asked the Home Office for a memorandum on the following point:
Does the Home Office have anything to add to its explanation in part 3 of the Explanatory Memorandum that these Regulations represent a proper exercise of the enabling power, in particular, why the Immigration Act 2016 was not used to provide express vires for the expansion of the Scottish regime.
2.The Home Office is grateful for this opportunity to provide a further explanation of why we consider the making of the Immigration Act 2016 (Consequential Amendments) (Licensing of Booking Offices: Scotland) Regulations 2017 to be a proper exercise of the power in section 92(2) of the Immigration Act 2016 (“the 2016 Act”) to make consequential amendments. In this memorandum we outline, firstly, the context relating to the 2016 Act as requested, and secondly, considerations relating to the use of the consequential power.
3.As previously noted, these Regulations complement provision about licensing of private hire vehicles in Schedule 5 to the 2016 Act. The clear intention of Parliament in passing the Act was to regulate operators and drivers throughout the United Kingdom. When introducing the taxi and private hire vehicles amendment provisions to the Immigration Bill which led to the 2016 Act at the Committee stage, Lord Bates stated that “the main thrust of the government amendments is therefore to ensure that this measure applies across the whole of the UK.”
4.We note that when provision relating to illegal working in relation to private hire vehicles was first inserted at Public Bill Committee stage into the Bill, clause 11 introduced a Schedule of provisions amending various regimes in England and Wales and also contained a power to make provisions with “similar effect” in relation to Scotland and Northern Ireland. Subsequently, that power was replaced by provision on the face of the Bill amending the substantive regimes contained in primary legislation for Scotland and Northern Ireland. It was never the legislative intention – and there is no reason to suppose Parliament ever intended – for that “similar effect” to be cut down so as to exclude operators of Scottish private hire vehicles.
5.The reason why the subject matter of these Regulations was not dealt with on the face of 2016 Act itself was due to the unusual structure of the relevant legislation. As noted in the Explanatory Memorandum, these Regulations amend Scottish secondary legislation, namely the Civic Government (Scotland) Act 1982 (Licensing of Booking Offices) Order 2009 (“the 2009 Order”). The 2009 Order in turn makes textual modifications of the Civic Government (Scotland) Act 1982 (“the 1982 Act”), which is a general licensing Act applying to a number of different licensing regimes, in so far as it applies to booking offices.
6.At the time of the passage of the Bill it was not considered appropriate to use primary legislation to amend secondary legislation. The reason for this was that it could create uncertainty about the status of any inserted text and whether it could be amended or revoked by future secondary legislation. Nor would it have been appropriate to amend the 1982 Act directly, because that would be inconsistent with the previous approach whereby the 2009 Order operates to modify it. Nor would it have been appropriate to use the power under which the 2009 Order was made, which is exercisable by Scottish Ministers.
7.We recognise that is no specific power in the 2016 Act providing for these particular changes to be made to the booking office licensing regime. Our records indicate that it was considered at the time of the passage of the Bill that the power in what is now section 92 would be sufficient.
8.We note that Craies on Legislation states, at section 126.96.36.199, that consequential provision will be tested to determine “whether it can fairly be presented as a mere consequence (whether absolutely necessary or merely clearly desirable) of the principal provisions”. We are satisfied that these provisions meet the standard of being “clearly desirable”. In the Secretary of State’s view it is clearly desirable in policy terms that this small gap in the illegal working scheme is filled, so as to create a uniform scheme across the different forms of licensing regime. The 2016 Act clearly made provision for operators’ licences across the United Kingdom including, for example, amending on the face of the Act the Plymouth City Council Act 1975 and the London Hackney Carriages Act 1843. In our view it would also be an expected use of the power, in the context of such a variety of licensing regimes across the United Kingdom, to also make provision for Scottish booking offices.
9.There is also an issue of legislative consistency and fairness across the different regions of the United Kingdom, which makes it “clearly desirable” that this provision is made. Equivalent provision to that made by the Regulations already exists for England and Wales, and for Northern Ireland, so if this Scottish provision were not to be made, that would create an anomaly in Scotland. This argument on consistency and fairness across the UK is illustrated by the justification for the provisions as set out by Lord Bates during the debates on the Bill: “Illegal working is a key driver of illegal migration. Being able to work illegally encourages economic migrants to put themselves in harm’s way in efforts to enter the UK illegally or to overstay. ... Illegal working also undercuts legitimate businesses which play by the rules, and may depress wages and the availability of work for British citizens and lawful migrants.”
10.We further note the Committee’s past view that the principle that “anything at all significant, and certainly anything involving significant intrusion on the liberty of the subject, will not reliably be effected in reliance on a mere power to make incidental or supplemental provision” also applies equally to a power to make consequential provision. These Regulations make amendments to one statutory instrument, the 2009 Order, concerning one sole issue (illegal working). The Regulations do not impinge on the liberty of the subject: they do not create a criminal offence, or a power of entry, or anything which is of a disproportionately draconian nature. The underlying principles are not new or unusual, because illegal working has already been made an offence under section 24B of the Immigration Act 1971; the purpose of the licensing provisions was simply to prevent an anomaly whereby a person who was already prohibited from working could obtain a licence which purported to allow him to work in a particular sector.
11.In summary, we are therefore satisfied that the Secretary of State can reasonably conclude that it is “appropriate in consequence of this Act” (which, as previously noted, is a lower test than “necessary”) to make these Regulations, so that private hire vehicle operators’ licences are regulated consistently across the United Kingdom.
6 February 2018
1 Lords Hansard, 20 January 2016, column 798.
2 Lords Hansard, 9 March 2016, column 1312.
3 8th Report for Session 2007–8, paragraph 1.15 (cited in footnote 91 to section 188.8.131.52 of Craies).
22 February 2018