Publications / Briefings

The Nationality and Borders Bill: Delegated Powers

12 Oct 2021

Ahead of detailed consideration of the Nationality and Borders Bill in Committee in the House of Commons from 19 October, this briefing paper focuses on five clauses in the Bill that contain delegated powers that are of particular concern and that highlight different aspects of the problems with the system of delegated powers.

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.

Get our latest research, insights and events delivered to your inbox

Subscribe to our newsletter

We will never share your data with any third-parties.

Share this and support our work

While these delegated powers might appear to be merely technical matters, in this as in most Bills they raise important questions of constitutional, legal, and procedural principle that matter, regardless of party allegiance or views on the policy merits of the Bill. The scope and design of the delegation of power sought in any Bill raise important questions for MPs that go to the heart of their role as legislators. MPs should be clear about the level of authority they are delegating to government Ministers and be confident that they will not regret forgoing their ability to fully scrutinise future government decisions.

The Hansard Society has long argued that the delegated legislation system – delegated powers in Bills and the resulting Statutory Instruments – is flawed and now represents one of the most significant constitutional challenges of our time. With the support of the Legal Education Foundation, we have therefore embarked on a Review of Delegated Legislation.

As part of the Review, we will be examining the delegation of powers in a range of government Bills and drawing attention to some of the clauses of greatest concern. The Nationality and Borders Bill is the second Bill we have examined in this way, after the Health and Care Bill.

Our analysis draws heavily on ‘legislative standards’ which we have derived from reports of the House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC). The DPRRC is an influential committee and provides the nearest thing to a form of ‘jurisprudence’ (or ‘legisprudence’) in the area of delegated powers.

The Nationality and Borders Bill proposes to make changes to several existing Acts and introduce measures relating to British nationality law, illegal migration, the asylum system, supporting victims of modern slavery and disrupting criminal networks behind people-smuggling. The Bill contains 71 clauses and five Schedules. Its Delegated Powers Memorandum (DPM) states that the Bill contains a total of 13 substantive clauses creating new or amending existing delegated powers, three of which include powers that can be exercised to amend primary legislation (‘Henry VIII powers’). The Bill also includes six placeholder clauses. 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 12 October 2021, the government amendments containing the proposed new substantive clauses have yet to be published. The Hansard Society has commented separately on the way in which the government’s use of placeholder clauses in this Bill hampers effective scrutiny, and – given that they are to be amended – this briefing does not analyse any of the placeholder clauses.

This briefing falls into two main parts, followed by two appendices:

  • Part 1: an overview of the Bill and a summary of our key concerns about five clauses, because of the delegated powers they contain.

  • Part 2: a detailed analysis of the five clauses of concern, drawing on the Bill and the accompanying Explanatory Notes (EN) and Delegated Powers Memorandum (DPM).

  • Appendix I: a list of key questions that MPs may wish to consider when scrutinising the scope and design of the delegated powers sought in any Bill.

  • Appendix II: a glossary of key procedural terms.

The five clauses of concern are:

  • Clause 10: Differential treatment of refugees;

  • Clause 12: Requirement to make asylum claim at ‘designated place’;

  • Clause 24: Accelerated detained appeals;

  • Clause 26 and Schedule 3: Removal of asylum seeker to safe country;

  • Clause 67: Transitional and consequential provision.

Four thematic questions run through these clauses:

  • Are MPs content with the use of the ‘negative’ rather than the ‘affirmative’ scrutiny procedure, given that the former will provide little or no opportunity for Members to effectively scrutinise the exercise of these powers in the future by Ministers of this or any future Government?

  • Are MPs content with the least rigorous level of scrutiny – the ‘negative’ procedure – being applied to the exercise of powers which are functionally equivalent to a ‘Henry VIII power’? (That is, although the power is not one that can be exercised directly to ‘amend, repeal or revoke’ primary legislation previously approved by Parliament, the way the power is exercised has the effect of doing so indirectly.)

  • Are MPs content with the lack of detail on the face of the Bill in relation to the way in which some of these powers may be exercised? If so, are the proposed scrutiny procedures for the exercise of these powers sufficient to ensure the desired degree of parliamentary control when the powers eventually come to be used?

  • Are MPs content with the proposed delegation of power in areas where there is concern that Ministers may, by delegated legislation, breach international law?

Vagimalla, D. (2022) The Nationality and Borders Bill: Delegated Powers (London: Hansard Society)

Who funds this work?

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

News / Assisted dying bill: Special series #10 - Parliament Matters podcast, Episode 89

Having cleared detailed scrutiny in a Public Bill Committee, the Terminally Ill Adults (End of Life) Bill faces its next crucial test when it returns to the House of Commons for Report Stage on 16 May. This stage is often where Private Members' Bills falter. Will opponents of Kim Leadbeater’s proposals to legalise assisted dying win enough support to amend the Bill? Can supporters of the Bill fend off attempts to change it? And could the Bill be lost altogether, because of the procedural hurdles that still stand in its way?

29 Apr 2025
Read more

News / Parliament Matters Bulletin: What’s coming up in Parliament this week? 28 April - 2 May 2025

MPs will debate the Football Governance Bill for the first time and consider controversial proposals to give government access to benefit recipients’ bank data in the Public Authorities (Fraud, Error and Recovery) Bill. The Great British Energy Bill faces a further hurdle over modern slavery concerns in solar panel supply chains. Orders on extended VE Day pub hours and banning ‘ninja swords’ will be considered. David Lammy and Shabana Mahmood face committee scrutiny, while Richard Foord seeks to require parliamentary approval for a UK–US trade deal. Mayors Andy Burnham and Kim McGuinness will give evidence on industrial strategy, and Dr Fiona Hill will speak about social mobility and education.

27 Apr 2025
Read more

News / Should Parliament roll out the red carpet for Donald Trump? - Parliament Matters podcast, Episode 88

After Parliament’s rare Saturday sitting to pass the Steel Industry (Special Measures) Bill with minimal scrutiny, we explore concerns about rushed legislation and unchecked ministerial powers. The Speaker Sir Lindsay Hoyle faces criticism for allegedly protecting Keir Starmer at PMQs. Meanwhile, as MPs and Peers move to block a possible Trump address to Parliament during his second UK State Visit, we discuss who controls invitations to speak and where on the parliamentary estate.

26 Apr 2025
Read more

Submissions / Evidence to the House of Commons Modernisation Committee: Priorities and strategic aims

In response to the Modernisation Committee's call for views on 17 October 2024, we submitted evidence outlining key areas we believe the Committee should prioritise. Our submission recommended a focus on: strengthening legislative scrutiny, with particular emphasis on reforming the delegated legislation system; enhancing financial scrutiny, especially in relation to the Budget and the Estimates; addressing strategic gaps in parliamentary scrutiny; making more effective use of parliamentary time; and reviewing the Standing Orders, language and rituals of the House of Commons.

01 Apr 2025
Read more

Briefings / The Assisted Dying Bill: A guide to the Private Member's Bill process

This briefing explains what to watch for during the Second Reading debate of the Terminally Ill Adults (End of Life) Bill on 29 November. It outlines the procedural and legislative issues that will come into play: the role of the Chair in managing the debate and how procedures such as the 'closure' and 'reasoned amendments' work. It looks ahead to the Committee and Report stage procedures that will apply if the Bill progresses beyond Second Reading. It also examines the government's responsibilities, such as providing a money resolution for the Bill and preparing an Impact Assessment, while addressing broader concerns about the adequacy of Private Members’ Bill procedures for scrutinising controversial issues.

27 Nov 2024
Read more