Fast-track Legislation: Constitutional Implications and Safeguards - Constitution Committee Contents

Letter from Alan Campbell MP, Parliamentary under Secretary of State

  Thank you for your letter of 2 April in relation to your inquiry into emergency (or accelerated) legislation. You asked for written evidence on five points related to delegated legislation.

(a)  Can you give some examples of situations in which the Home Office has needed to make delegated legislation with great urgency?

  In relation to terrorism legislation, one example relates to the implementation of the Prevention of Terrorism Act 2005. This Act was passed by Parliament in response to the House of Lords decision in A and others v Secretary of State for the Home Department in December 2004. In this case, the House of Lords held that the power under which certain persons suspected of terrorism were being detained was incompatible with the European Convention on Humans Rights.

  The Prevention of Terrorism Act 2005 created the control orders regime and came into force on Royal Assent on 11 March 2005. The Civil Procedure (Amendment No.2) Rules 2005 (S.1. 2005/656) were made as part of the implementation of the Act. They inserted a new Part 76 into the Civil Procedure Rules to cover proceedings under the 2005 Act. They were made and came into force on 11 March and were then laid before Parliament on 14 March 2005. These Rules needed to come into force immediately to deal with proceedings relating to control orders.

  Another area in which urgent delegated legislation may be required is immigration, where key operational policies are set out in the Immigration Rules. These are not technically "delegated legislation", but they cover some ground which might be dealt with in SIs in other contexts. Changes to the Rules generally comply with the "21 day rule" and come into force 21 days after the day on which they are made (as is the case for delegated legislation subject to the negative resolution procedure) but they can come into force immediately if circumstances require. For example, if the Rules are to be changed to impose a new visa requirement, they could come into force on the day on which they are laid to prevent a rush to enter the country before the visa requirement takes effect.

(b)  What practical and legal difficulties might the Home Office face when seeking to make delegated legislation urgently?

  In seeking to make delegated legislation urgently, the Home Office might in theory face the following difficulties (although we do not have any examples where these issues have arisen).

    — Having insufficient vires to make the legislation—this may be a problem where the delegated legislation is required to address novel circumstances which were not envisaged when the enabling Act was passed.

    — The applicable Parliamentary procedure not permitting the legislation to come into force as soon as is needed—for example, the delegated legislation may be subject to the affirmative procedure, but this can require around six weeks from the date of laying to the date of coming into force.

    — Having insufficient time to consider all aspects of the policy and assess its impact, to consult, and to draft the legislation—whilst clearly undesirable, this may be a reality in a case where urgent legislation is required.

(c)  During the passage of the Banking (Special Provisions) Bill, there was some debate as to whether an enabling provision in primary legislation should specify a negative or affirmative resolution procedure where a Department anticipated a future need to make delegated legislation with considerable urgency (see Delegated Powers and Regulatory Reform Committee, 5th Report of 2007-08, HL 58). Does the Home Office have a view on this generally?

  If it is envisaged that delegated legislation is likely to be needed to be made on an urgent basis, then the enabling legislation can be drafted in such a way as to take account of this. Two examples from Home Office policy are terrorism and immigration.

  Under the Terrorism Act 2000, certain powers which are normally subject to the affirmative procedure can be exercised on an emergency basis. For example, section 3 contains a power to proscribe terrorist organisations which is ordinarily subject to the affirmative procedure. However, this power can be exercised without the order having been approved by both Houses of Parliament if the Secretary of State is of the opinion that it is necessary by reason of urgency (see section 123(5) of the Act). Such an urgent order ceases to have effect at the end of the period of 40 days beginning with the day on which the Secretary of State makes the order, unless a resolution approving the order is passed by each House during that period.

  In relation to immigration, the procedure for Parliamentary scrutiny of the Immigration Rules ensures both that necessary changes to the Rules can be made immediately (Parliament does not have to be sitting when changes are made) and that subsequent disapproval of the Rules does not leave a vacuum (disapproved Rules remain in force until the Secretary of State lays—within 40 days—a statement of further changes). These arrangements are set out in section 3(2) of the Immigration Act 1971.

(d)  Have situations ever arisen in which the Home Office identified a need to make delegated legislation but was delayed from doing so because of a parliamentary recess or because Parliament stood prorogued?

  In relation to immigration legislation, there are two situations in which the Home Office has been unable (or would have been unable) to make delegated legislation because Parliament was in recess. The first relates to the Borders, Citizenship and Immigration Bill which is currently before Parliament. Part 1 of that Bill provides for the integration of immigration and customs functions at the border. It deals with the application of the relevant provisions of the Police and Criminal Evidence Act 1984 to designated customs officials and in the Bill on introduction, these provisions were to be applied by delegated legislation. The Government is keen to implement Part 1 as soon as possible and hopes for Royal Assent before the summer recess. However, there was a recognition that it would be very difficult to ensure that the necessary orders could be made in whatever period there will be between Royal Assent and Parliament rising. Therefore, in order to avoid a delay of some three months, the Bill has been amended to include the necessary provisions in the Bill itself.

  The second situation relates to regulations setting out fees payable. The Immigration and Nationality (Fees) (Amendment No.2) Regulations 2008 (S.1. 2008/1695) exempted nationals of states which have ratified the Council of Europe Social Charter from certain fees. These Regulations were subject to the draft affirmative procedure and were made on 26 June 2008, coming into force on 30 June 2008. Soon after these regulations came into force, further adjustments were found to be necessary but, due to the summer recess, they had to wait until the Immigration and Nationality (Fees) (Amendment No.3) Regulations (S.1. 2008/3017) could be made at the end of November 2008.

(e)  Do you have any suggestions for reform of the process of making delegated legislation in response to urgent situations?

  Difficulties could arise where an instrument which is subject to the draft affirmative procedure is required to be made on an urgent basis.

  For cases where the instrument is required to be made while Parliament is sitting, there needs to continue to be sufficient flexibility for the instrument to be made as soon as possible. The Joint Committee on Statutory Instruments could consider the instrument on an urgent basis, and subject to the Business Managers finding Parliamentary time, the instrument could then be debated and made.

  For cases where the instrument is required to be made while Parliament is in recess, then there would seem to be only two ways of dealing with the issue. Either Parliament could be recalled, or Parliament could (in advance) enact a general power to enable any draft affirmative instrument to be made without Parliamentary approval, subject to a subsequent affirmative vote in each House (following the approach taken in the Terrorism Act 2000, mentioned above). I mention this latter option only as a theoretical possibility. It would clearly be a significant new power and would in any event require primary legislation.

23 April 2009

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2009