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Placeholder clauses in the Nationality and Borders Bill: an impediment to effective scrutiny

24 Sep 2021

The Nationality and Borders Bill has entered its Committee stage in the House of Commons while still including six placeholder clauses which the government has always intended to change. This may indicate that an under-prepared Bill has been introduced to Parliament. It also inhibits effective scrutiny.

Dheemanth Vangimalla , Researcher, Hansard Society
,
Researcher, Hansard Society

Dheemanth Vangimalla

Dheemanth Vangimalla
Researcher, Hansard Society

Dheemanth joined the Hansard Society in July 2021 as a Researcher to contribute to the Review of Delegated Legislation. His role also involves supporting the day-to-day delivery of the Society’s legislative monitoring service, the Statutory Instrument Tracker®.

Dheemanth has a diverse professional background that includes experience in both the legal and non-legal sectors. He completed his MBBS degree at the University of East Anglia. He has since attained a Graduate Diploma in Law (GDL) while working full-time as a junior doctor at an NHS hospital trust. He has previously conducted legal research with the hospital’s legal services department. As a research assistant, he has also contributed to a public international law project concerning citizenship and statelessness. Additionally, he has experience conducting scientific and laboratory-based research during his BMedSci degree in Molecular Therapeutics at Queen Mary University of London.

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The Nationality and Borders Bill (‘the Bill’) was introduced in the House of Commons on 6 July 2021. It was given a Second Reading on 20 July and started its Committee stage on 21 September.

Debate on the Bill will be hampered by the fact that, as introduced, it includes six placeholder clauses. This issue was only briefly mentioned during the Second Reading debate and is yet to be resolved by the government.

The placeholder clauses are drafted as regulation-making powers that the government has said it intends to replace … with substantive provisions ahead of Committee stage in the House of Commons. However, as of midday on 24 September, with the Bill already in Committee, the government amendments containing the proposed new substantive clauses have yet to be published.

Under the placeholder clauses, the Secretary of State may make regulations:

  • about the right to work in the territorial sea of the UK (clause 42);

  • amending the Criminal Justice Act 2003, so as to enable the removal of relevant prisoners from the UK (clause 44);

  • about the processes for assessing the age of relevant persons (clause 58);

  • about the processing of applications for entry clearance or leave to enter the UK from nationals of certain countries (clause 59);

  • about electronic travel authorisations (clause 60); and

  • specifying the decisions relating to immigration which may be certified for the purpose of allowing an appeal to the Special Immigration Appeals Commission (clause 61).

The Cabinet Office’s Guide to Making Legislation states:

“When a bill is put forward to [the Parliamentary Business and Legislation (PBL) Committee] for clearance to be introduced to Parliament, one of the key questions Committee members will ask the Bill Minister and Parliamentary Counsel is whether the bill is fully ready to be introduced. This is not a formality. If the Committee is not satisfied on this point and feels that there is still policy development or drafting needed which may result in government amendments after the bill’s introduction, the Committee can, and does, refuse clearance for a bill to be introduced.”

The Guide goes on to say that government amendments to Bills after introduction must be kept to a minimum and will usually only be cleared by the PBL Committee if they:

  • are considered essential to ensure that the Bill works;

  • are necessary to avoid a government defeat; or

  • otherwise significantly ease handling in Parliament.

‘Essential’ is defined by the Guide as being “where there are unforeseen circumstances which have arisen since the introduction of the bill which have led to the pressing need for the amendment”, including a need to correct major errors, make drafting or technical changes essential to delivering the policy, or address “a situation which could cause major problems” if no amendment were made.

However, in evidence to the House of Lords Constitution Committee for its 2019 report on the passage of Bills through Parliament, Dr Louise Thompson said that, since 2000, there has been an upward trend in the number of amendments being tabled by the government to its own legislation.

Large numbers of government amendments are not necessarily problematic. In its report, the Constitution Committee recognised that “The Government seeking to amend its bills may be a welcome indicator of responsiveness to Parliament’s scrutiny of bills”.

However, the Committee also noted that, if the government seeks to “add substantial new clauses or even policies to a bill part way through its passage”, this “may reflect shortcomings in the preparation of a bill prior to its introduction”.

With the Nationality and Borders Bill, the government has indicated from the start that it intends to change the placeholder clauses. Such planned amendments should not be equated to the government being responsive to Parliament’s scrutiny of the Bill.

The inclusion of placeholder clauses, which the government has stated are not in their final form, may indicate that an under-prepared Bill has been introduced to Parliament.

The tabling of substantive government amendments after a Bill has begun its passage reduces the time available for Parliament to scrutinise them. The Constitution Committee noted in its 2019 report that “[s]uch additions pose a challenge for effective scrutiny as there may be few stages left in the legislative process for the issues to be considered”. The Committee took the view that it is not “normally appropriate to insert new or substantial policy content into a bill at a late stage, as this may result in inadequate parliamentary scrutiny”.

As well as time, the delayed introduction of amendments also reduces the information and expertise that may be available to parliamentarians, so constraining their ability to conduct effective scrutiny. The Public Bill Committee (PBC) on the Nationality and Borders Bill completed its planned oral evidence-taking on 23 September, having heard from 20 witnesses – all without the government’s proposed new substantive clauses being available. Select committees and external stakeholders are similarly unable to examine the new provisions; and MPs may be less able to take their views into account when these do emerge, because by then the Bill may be too far advanced in its legislative process.

In the meantime, it is not clear how MPs are expected to treat a Bill that is admitted to be incomplete. In the Delegated Powers Memorandum (DPM) for the Nationality and Borders Bill, the government says that it has included the placeholder clauses in “the interests of transparency, and to allow full examination of this Bill”. However, the government also states that it “does not intend to use these powers as drafted” and that the new “substantive provisions may mean that it is appropriate to remove some delegated powers entirely or to replace them with a delegated power that is subject to a different parliamentary procedure”. Given that these clauses may be subject to potentially substantial changes, how are MPs expected to scrutinise these powers – and other clauses that may interact with them – now?

For MPs to be able to fulfil their role as legislators, they must be given the opportunity to fully debate substantive provisions in Bills. Placeholder clauses and the late tabling of planned government amendments to Bills inhibit effective legislative scrutiny.

Vangimalla, D., Placeholder clauses in the Nationality and Borders Bill: an impediment to effective scrutiny, (London: Hansard Society), 24 September 2021

Who funds this work?

This work is supported by the Legal Education Foundation as part of the Hansard Society's Delegated Legislation Review.

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