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
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