Amendment No. 65 would add to clause 13 the requirement for the Government to publish the code of practice at least six months before the commencement of the provisions. The amendment relates to a recurrent debate about how much consultation is appropriate for such legislation. There is one area of consensus. We have established that we want the system to be robust and fair. We want tostart the long, difficult process of restoring public confidence in a system in which, as we have heard this morning, there is little public confidence. Sir Andrew Green said that, broadly speaking, 80 per cent. of people think that the system is not working. I have heard the large amount of evidence given to this Committee and it is clear that the lack of confidence in the system goes both ways and comes from both sides of the argument: it comes from those who think that there is, broadly speaking, too much immigration into this country and from those who that think that the current system makes it too difficult for certain groups of people. Neither party has confidence in the current system, so it is in the Minister’s interest to try to engage them as much as possible.
A code that was properly discussed before the provisions came into effect would offer not just guidance to those involved, but a degree of reassurance and protection to those on the other side of the counter who were going through the process. Apart from the advantage that that would have in the outside world, laying the draft measures before Parliament and, therefore, before the public would make the Government more accountable for their actions. Although that may, in the short term, be mildly uncomfortable for Ministers, I am sure that the Minister would agree that it would be better to have a rocky consultation period than for enacted legislation to fall apart on the job. Governments of all parties have seen that happen at various stages.
It is good practice, which sensible Ministers should get into especially in difficult and publicly sensitive areas, to consult more and do more in respect of publishing codes and guidelines before the operation of specific pieces of legislation commences. Amendment No. 65 seeks to do that and I commend it to the Minister in that spirit. However, if he does not accept it, as I suspect that he will not, and something goes wrong, he cannot say that he was not warned.
We have just agreed that wholesale powers should be given to the Home Secretary to impose penalties for non-compliance with clauses in the Bill. I do not have a problem with that, because the Bill has a particular purpose and job. However, it is important that a code of practice is subject to consultation and also approved by the House. My amendment seeks to pursue the affirmative process, so that the penalties are subject to public consultation before they come into operation and are approved by the House. Without that surety, as has been said earlier, the immigration system comes into disrepute. Concerns about the system have been raised. The Bill helps us on the way to developing our immigration and nationality policies. However, as we are introducing such wide-ranging penalties and appeals—powers that are solely limited to the Home Secretary—we should at least ensure that that code of practice is approved by the affirmative process in this House. I hope that the Minister appreciates the reasons given by both sides of the House as to why that might be a desirable process if the Bill is to operate efficiently and with the credibility that he wants it to have in the wider community.
I looked at this amendment very sympathetically as well. I understand the ambitions that lie behind it, and those ambitions are entirely sensible. It might be helpful if I say a little about what the clause does and why it is important. It effectively makes provision for a code of practice to be issued, so that the civil penalty regime can operate with a degree of logic, predictability and integrity. In particular, the code will set out those matters that must be considered when the Secretary of State is determining whether to give a penalty notice and what the amount will be. It may also require the Secretary of State to consider decisions that have already been taken. For example,if it has been decided that the right sanction for non-compliance is to vary leave, or curtail leave, or deny an application, the code will set out how some of those matters might be taken into account.
The clause already provides that the code must be published, that we must consult on it and that we must lay a draft before Parliament. In addition, the clause also says that the code will come into effect not by affirmative resolution but by negative resolution. That is where I pause for thought. The reason that we suggested in the Bill that a negative resolution rather than an affirmative resolution would bring the code into force was that we drew on a precedent that was set in the Immigration, Asylum and Nationality Act 2006. In that Act, we provided for a code to be issued that would guide the way that the civil penalty regime would apply to those employers who were caught employing somebody illegally. The Bill contains a set of immigration procedures, so we looked back on precedents in the field of immigration.
There is, however, another precedent that could perhaps have been a more useful guide, which is the precedent set in the Identity Cards Act 2006. In that Act, along with the requirements to publish, consult and so on, we provided that the first time that the code was brought into force there would not be a negative procedure, but an affirmative procedure. Of course, revisions could then be processed by negative procedure, but in the first instance it was felt that the degree of scrutiny offered by the affirmative procedure meant that that would be a wiser route to take. Therefore, having heard the ambitions that have been expressed by Opposition Members, I will examine the clause again to see what space there is to improve it.