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.