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Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) (No. 2) Order

Volume 813: debated on Thursday 24 June 2021

Motion to Approve

Moved by

That the draft Order laid before the House on 20 May be approved. Considered in Grand Committee on 22 June.

Amendment to the Motion

Moved by

At end insert “but this House regrets that the draft Order is necessary to correct errors in the original Order; and further regrets that the volume and nature of secondary legislation means that Parliament is limited in its ability to offer detailed scrutiny that could assist Her Majesty’s Government in preventing such errors”.

My Lords, I have put down an amendment expressing regret at this order for two reasons. The first is to highlight to the House, if it needed highlighting, the volume and complexity of secondary legislation that this House is being asked to scrutinise. It is so vast and complex that it would appear that not even the Government are able to draft legislation correctly—let alone noble Lords being able to scrutinise it properly. The second is to draw the attention of the House to the unreasonable pressure being placed on government Ministers in general, and on the noble Baroness in particular. As well as having to deal with these tsunamis of secondary legislation, she has been having to cover two important and demanding ministerial posts during the absence of one of her colleagues. I take this opportunity again to send my very best wishes to the right honourable James Brokenshire MP, the Minister of State for Security.

On 19 January 2021, the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2021 was laid before this House and it was noted as an instrument of interest by the Secondary Legislation Scrutiny Committee on 2 February. It was considered by this House on 2 March. On 20 May, the Government laid this order, the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) (No. 2) Order 2021, to correct mistakes in the drafting of the original order. In a letter from the Minister dated 20 May to noble Lords who took part in the 2 March debate, she wrote:

“I am acutely aware of the pressures on Parliament over the past year as a result of the pandemic and EU exit and apologise unreservedly for these errors.”

In the 2 March debate, the noble Baroness, Lady Gardner of Parkes, said of immigration law:

“It is just the sort of legislation that frustrates parliamentarians—and others, presumably—because it relies on so many statutory instruments, orders and regulations, rather than the primary piece of legislation, to introduce the rules.”

I agreed, saying that, when I got to examining the regulations, rather than the Explanatory Notes accompanying them,

“I had to admit defeat.”—[Official Report, 2/3/21; cols. 1101-04.]

I quoted from the regulations. I was going to do so again but suffice it to say that they are practically unintelligible. I asked the Minister to explain precisely what the section that I had quoted meant. Understandably, she declined to comment at the time, but she did not write to me subsequently to explain.

In the same debate, I asked the Minister a series of perhaps easier questions, such as why the regulations covered only the French channel ports and not the Dutch and Belgian North Sea ports, as they do apply to Eurostar terminals in those countries. I asked why the regulations appeared to extend all immigration enactments to control zones in French channel ports, whereas the previous regulations extended only a few. I also asked about double jeopardy and jurisdiction, including whether offenders would be tried in French or British courts, or potentially in both. None of these questions were answered at the time, nor in writing afterwards.

I have heard from other noble Lords, and from other parts of the House, that they feel that the Government are either unable or unwilling to be held to account. Not only is an extraordinary amount of secondary legislation being pushed through this House, often weeks after it has come into effect, but the House is being given little opportunity to scrutinise it and, by its nature, no chance to amend it. Such is the complexity and volume of legislation that the Government are now making mistakes in the drafting, and even when noble Lords ask questions about that legislation, we receive no response.

I am grateful to the Minister’s office for confirming to me yesterday in an email:

“We are currently in the process of drafting a letter to cover points that were unanswered in yesterday’s debate and the points you raised during the debate on 2 March.”

This is not effective scrutiny of government. This House needs to exert its right to scrutinise the Government. I beg to move.

The original question was that the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) (No. 2) Order 2021, previously debated in Grand Committee, be approved, since when an amendment has been moved by the noble Lord, Lord Paddick, to insert the words set out on the Order Paper. The question I therefore have to put is that this amendment be agreed to. I have been notified that the noble Baroness, Lady Smith of Basildon, wishes to speak.

My Lords, there is an early opportunity, at the beginning of a Session, to raise these issues. As noble Lords will be aware, they have come up before. I want to make a brief comment and offer a way forward that I think may be helpful to both the Government and the House.

First, we have only to look at the previous Session of Parliament and read the reports of the Constitution Committee, the Secondary Legislation Scrutiny Committee and the Delegated Powers Committee to see that they all raised concerns about the Government’s overreliance on secondary legislation and the use of skeleton Bills. They commented that the Government’s reliance on secondary legislation has grown markedly in recent years. The Constitution Committee said:

“Skeleton Bills inhibit parliamentary scrutiny and we find it difficult to envisage any circumstances in which their use is acceptable”.

There are examples from the previous Session. The noble Baroness was involved with the then Medicines and Medical Devices Bill, which was a particular issue, and there was also, again, immigration legislation from the Home Office.

The point made by the noble Lord, Lord Paddick, is slightly different, because he asked questions in Committee during the debate on a statutory instrument, to which the Minister was unable to respond. She is still unable to respond to him even at this stage when we are being asked to vote on that order.

I can recall an instance when a former Home Office Minister, in response to me, agreed not to bring something forward until they had answered the questions that I had asked, because they were unable to answer them in Committee. The House may want to consider that idea in future because it is best to have answers to questions before we are asked to vote.

It is inadequate to have an early debate on revised legislation. However, it would help—I have raised this idea before with the Government, and I hope that the Minister will take it back if she cannot give me an answer today—if the Government could commit to ensuring that, although there may be an occasional exception, draft SIs are published prior to the Report stage of legislation going through. That would give this House an opportunity to look at an SI while discussing the legislation, which would then give us an opportunity to scrutinise it better. I would be happy to discuss this further with the Government. The situation at present is not always, but too often, unacceptable— but there is a way forward that might help both the Government and your Lordships’ House.

I thank the noble Lord, Lord Paddick, for tabling this Motion—[Laughter.] I did mean that sincerely, although it might have come out all wrong. On the noble Lord’s second point, I join him in wishing my right honourable friend Minister Brokenshire all the very best for a speedy recovery. In fact, I can update the House: he is making a speedy recovery. May I also say that it has been my absolute pleasure to cover his work for him in his absence? I wish him a speedy return.

I am sure that noble Lords will agree that it is the responsibility of government to ensure that correct legislation is in place and that, where errors are identified, they are rectified swiftly. This second order—the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) (No. 2) Order 2021—which we debated in this House on Tuesday and on which answers were given, corrects drafting errors in the earlier order to ensure that the law is absolutely clear.

That order, which I shall refer to hereafter as the earlier order, was debated and approved by this House on 2 March. The corrections that the second order will make to the earlier order will remove the potential for any ambiguity in the law and ensure that the law is explicitly clear. I repeat what I said during consideration of the draft order in Grand Committee on Tuesday. I say it now and I said it then: I fully accept that mistakes were made, and I again offer my full apology for the fact that errors were made. It is highly regrettable but we have been swift in taking corrective action. The department has been proactive in taking steps to improve internal quality assurance procedures to prevent such errors recurring.

I note the comments of the noble Lord, Lord Paddick, about the importance of detailed parliamentary scrutiny of secondary legislation. I also note the point made by the noble Baroness, Lady Smith, about the amount of secondary legislation. We have, of course, had a legislatively busy couple of years, and I wholly agree that proper oversight of delegated legislation is an essential function of Parliament.

It is for this reason that both this order and the earlier order were subject to the standard procedures in place to ensure that delegated legislation is fully and properly scrutinised by Parliament. That includes consideration by both the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee, as well as debates on the content of orders by both Houses.

I know that the noble Lord, Lord Paddick, was not content with my responses to points made by noble Lords during the earlier debate, for which I apologise. I was not able to answer all the questions fully, but I hope that I did respond to some of them when they were made again during the debate on this order on Tuesday. I will now endeavour to address some of the key areas raised.

One of the issues on which the noble Lord challenged me was the potential for double jeopardy to arise, whereby an individual, having committed an offence and then been detained, could be subject to both UK and French law. As I explained in Grand Committee, matters relating to the responsible state as regards offences have been considered and are the subject of specific provisions in the underpinning of Le Touquet, the purpose of which is to negate this possibility.

The noble Lord also asked me about the jurisdiction of courts and raised concerns about Article 12 of the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003, which relates to the jurisdiction of courts as regards offences. Article 12 makes it clear which court, either UK or French, has jurisdiction over offences committed in the UK control zones at Calais and Dunkirk, in line with specific provisions contained in the underpinning of Le Touquet.

On whether errors occurred because of deficient processes, rather than simple oversight, they occurred because of human error. To prevent the recurrence of such errors, the department has directly informed all staff working on the drafting of statutory instruments of the steps to be taken on preventing them.

Another issue brought up by the noble Lord, Lord Paddick, was Belgium and Holland. We obviously do not operate juxtaposed controls at the seaports of Belgium or the Netherlands, but I think he was making precisely that point: we do not have international agreements enabling us to exercise immigration powers in these countries, other than for the Eurostar service. We do have international arrangements underpinning the international rail regime with France, Belgium and the Netherlands, and separate domestic orders setting out those arrangements.

I hope that I have answered the specific points that the noble Lord called out for clarification. On draft SIs, I can certainly recall SIs that were previously brought in draft for noble Lords’ consideration, but I shall take both those points back: adding to legislation by secondary legislation, and the point on SIs. With that, I apologise yet again and commend this order to the House.

My Lords, I am grateful to the noble Baroness, Lady Smith of Basildon, for her support and her helpful suggestion. The Minister said that standard procedures were followed in the amendment of the (No. 2) Order and the original order. It should not be standard procedure that the only way in which noble Lords can get answers to the questions that they raised in a debate on 2 March is to put forward a regret amendment to an amendment order on the Floor of the House. Those answers should be given promptly, following the original debate. Having said that, I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.

Motion agreed.