Baroness Hamwee:

Moved by Baroness Hamwee

175A: Clause 78, page 81, line 20, leave out from “State” to end of line 24 and insert “must, no later than 31 December 2025, publish draft primary legislation to consolidate the Acts relating to immigration.(1A) The Secretary of State must consult such persons as are appropriate during the period of six months following publication and shall report the result of the consultation to Parliament.”Member’s explanatory statementThis amendment removes the Henry VIII power in Clause 78 and replaces it with a duty to consolidate immigration law. It further requires consultation on this draft consolidation.

My Lords, on Tuesday the noble Lord, Lord Wolfson, brought into the Chamber the Criminal Law Handbook and referred to its size. “Handbook” is a bit of a misnomer because lifting it could break one’s wrist, but it is as nothing compared to the immigration legislation and the Immigration Rules. The rules are too many to print; one has to access them online—unless things have changed in the last year or two.

Clause 78 allows the Secretary of State, by regulations, to make “amendments and modifications” such as are

“desirable in connection with, the consolidation of the whole or a substantial part of the Acts” listed. Perhaps it is a secondary point to remark on the potential confusion of consolidating a part of, but not the whole of, an Act. We know the difficulties with regulations—certainly, we in the Opposition would call them difficulties—the problems of scrutinising and debating them, and the impossibility of amendment.

We have been promised the consolidation of immigration law for I do not know how many years. Has it got stuck in the quagmire of legislation, or is it just that it is too difficult? It is obviously recognised that there is a problem, but I am not convinced that Clause 78 is the solution: I think it may be an addition to the problem. More in hope than expectation, I have tabled Amendment 175A—Amendment 176A is consequential on it—in order that we publish draft consolidating legislation by the end of 2025 and then consult on the work.

I do not know whether I am doing an injustice to what is proposed. Clause 78(4) proposes that regulations be made after consolidation of

“the whole or a substantial part of the Acts.”

That gives rise to potential confusion. The big question is whether the Minister has news of the consolidation exercise. I find it a little odd to provide here for regulations that cannot be made until after this long list of Acts is consolidated. I beg to move.

I advise the Committee that if this amendment is agreed to, I will not be able to call Amendment 176 by reason of pre-emption.

As the noble Baroness, Lady Hamwee, has said, this clause gives the Secretary of State the power by regulation to amend immigration legislation in order to make pre-consolidation changes for the purpose of facilitating a consolidation Bill. It provides a power for the Secretary of State, by regulation, to make those amendments and modifications to Acts relating to immigration that

“in the Secretary of State’s opinion facilitate, or are otherwise desirable in connection with” the consolidation of the Acts. It also provides that regulations made under this section do not come into force unless a consolidation Act is passed.

The consolidation of immigration law has long been sought and is a recommendation of the Windrush Lessons Learned Review, which was published in July 2018 and said:

“It is widely accepted that immigration and nationality law is very complex.”

We strongly support the consolidation of our complex and unwieldy immigration law as recommended by the Windrush Lessons Learned Review, but we share the concerns already expressed about the provisions of this clause, not least the part that I have already referred to—namely, the extremely broad powers it seems to give the Secretary of State to amend and repeal provisions that

“in the Secretary of State’s opinion facilitate, or are otherwise desirable in connection with” the consolidation of the Acts.

We support the addition of a requirement for the Secretary of State to consult appropriately before making regulations under this section. I hope the Minister, on behalf of the Government, may be able to give some encouragement on that score. Is it intended that the Home Secretary would consult before undertaking such a task? If not, why not? If so, would the Government see fit to include that requirement in the Bill?

I have another question on the issue of regulations under this section. On what issues or matters are regulations under the section necessary that could not be achieved in the primary consolidation Bill? There appear to be two stages. What is it that has to be achieved by these regulations, under which the Secretary of State has such broad powers, that could not wait or be enshrined in the primary consolidation Bill?

As I think the noble Baroness, Lady Hamwee, asked, can the Minister give the House an update on when we might be able to expect a consolidation Bill? Has the Law Commission been tasked to consider immigration statute? If so, what progress or otherwise is being made? I hope the Minister may be able to address some of the concerns expressed over the drafting of this clause, the possible interpretation of what it might mean and the powers that it might give to the Secretary of State.

My Lords, I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser, for their contributions to this debate. Amendments 175A and 176A remove the power to make regulations to facilitate the consolidation. We have to be clear about the scope of the regulation-making power. It cannot be used to make policy changes; it can be used only to ensure the future consolidation of the whole or substantial parts of the Acts relating to immigration listed in the clause. Subsection (4) is clear that regulations made under this power do not come into force unless such a consolidation Act is passed.

The regulation-making power is limited to changes to facilitate the consolidation, such as updating terminology and aligning any inconsistencies. It is standard practice to take such a regulation-making power when consolidating legislation, and this power is drafted in terms familiar to Members of the Committee.

The noble Baroness, Lady Hamwee, asked for news of the consolidation process, and the noble Lord, Lord Rosser, echoed that call. Without the power, any inconsistencies in many immigration Acts could not be resolved as part of consolidation; it would require further primary legislation, which would delay, potentially for some time, the important work to consolidate immigration legislation, which has started. The Law Commission has already started its work on consolidation, and it hopes to complete that work in 2023. It is unlikely that the timetable will be met if further primary legislation is required to address inconsistencies or issues which need to be resolved to facilitate consolidation and which could otherwise have been dealt with within regulations before the consolidation Act can be finalised.

Members of the Committee are concerned about the ability to change primary legislation by regulation. The regulation-making powers are necessary to ensure that if amendments are identified which facilitate or are otherwise desirable in connection with the consolidation, they can be made for that purpose, but I seek to provide the Committee with further reassurance that appropriate safeguards are in place. The safeguards are twofold. First, the regulations are subject to the affirmative procedure, so any attempt to go beyond what is necessary to facilitate consolidation can be identified in scrutiny by both Houses. Secondly, the Joint Committee on Consolidation Bills will review this Bill, ensuring that it does not start amending the law beyond minor corrections and improvements.

The amendments would also impose a duty to consolidate and a duty to consult. Amendment 175A requires publication of a draft Bill, a consultation and a report on that consultation within six months of publication. Under that amendment, there is no regulation-making power. I am grateful to the noble Lord, Lord Rosser, for reminding the Committee that the impetus behind consolidation of immigration law stems from the Windrush Lessons Learned Review, and these procedures follow from that recommendation that the simplification of immigration law be desirable. For the reasons given, I invite the noble Baroness to withdraw her amendment at this stage.

My Lords, the impetus started a long time before the Williams review. It is quite some time since I had a proper clear out of my filing cabinet in this building, and when I last did—many years ago—I found a whole lot of material relating to consolidation. I cannot remember whether I kept it or not. If the impetus had been acted on then, there would have been no need for the Wendy Williams recommendation or, more importantly, for what we all know happened to have happened. I thank the Minister for that really interesting response. I had not begun to appreciate the context of this clause, which is no doubt because of my failure to look at all the relevant information, as I could have done if I had researched it.

I take this opportunity to make a point about the regulations to which the Minister has referred, which will be necessary to enable the work that is being undertaken by the Law Commission. I ask that the Explanatory Memorandum for each of those statutory instruments—I assume that that is what they will be—explains fully why each is being proposed. Otherwise, it will be impossible for the outside world and difficult for our pressed Secondary Legislation Scrutiny Committee to understand what is going on and give the appropriate responses.

The Minister started by saying that this would remove the regulation-making power. Of course, that was done in order to enable the amendment that I proposed, which was for a different approach to consolidation—I just want to make that clear. The Constitution Committee welcomed the general purpose of the clause and urged the Government to proceed with consolidating immigration law, but it said that

“this does not get to the root of the problem, which is that the law in this area needs to be simplified and made more intelligible. We urge the Government to prioritise simplification, in addition to consolidation. As part of this process the Government should consider imposing a greater degree of parliamentary scrutiny over delegated powers relating to immigration law, including the immigration rules under section 3(2) of the Immigration Act 1971.”

That will be a familiar plea or cry. I beg leave to withdraw the amendment.

Amendment 175A withdrawn.

Is Amendment 176 not moved? Would the noble Baroness, Lady Hamwee, like to move it?

I would be delighted to move it and I apologise to the House.