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 / Parliament Matters Bulletin: What’s coming up in Parliament this week? 23-27 June 2025

MPs will debate the spending plans (Main Estimates) of six government departments and approve all departmental spending for this financial year. Chief Secretary to the Treasury Darren Jones MP will answer questions from the Treasury Committee on the Spending Review, and the Governor of the Bank of England will discuss the state of the economy with the Lords Economic Affairs Committee. Foreign Secretary David Lammy and his ministerial team will face questions from MPs in the Chamber. The Foreign Affairs Committee will hear from the Israeli opposition leader, Yair Lapid, about the conflict with Iran. There will be backbench debates on Pride Month and Armed Forces Day. And experts will be asked whether the earth is prepared for an asteroid collision.

22 Jun 2025
Read more

News / Assisted dying bill: Special series #14 - MPs back assisted dying bill in historic vote

This week, we reflect on a landmark moment in UK parliamentary history: the Terminally Ill Adults (End of Life) Bill has passed its Third Reading in the House of Commons, moving one step closer to legalising assisted dying in England and Wales. We are joined once again by former House of Commons Clerk Paul Evans to examine how this Private Member’s Bill navigated the political and procedural obstacles in its path and to explore what lies ahead in the House of Lords. Please help us by completing our Listener Survey. It will only take a few minutes.

21 Jun 2025
Read more

Guides / How does Parliament approve Government spending? A procedural guide to the Estimates process

In order to incur expenditure the Government needs to obtain approval from Parliament for its departmental spending plans. The annual Estimates cycle is the means by which the House of Commons controls the Government’s plans for the spending of money raised through taxation.

16 Jan 2023
Read more

Blog / What role does Parliament play in the Spending Review?

The UK Spending Review outlines how Government funds will be allocated over several years. Unlike the Budget, which raises revenue, the Review decides how it is spent. But how is it approved? What role does Parliament play if it doesn’t vote on the Review itself? This blog explores how the Spending Review works, how it differs from the Budget, and how Parliament holds the Government to account through the Estimates process.

09 Jun 2025
Read more

Submissions / Parliamentary scrutiny of treaties - Our evidence to the House of Lords International Agreements Committee

Our evidence on treaty scrutiny has been published by the House of Lords International Agreements Committee. Our submission outlines the problems with the existing framework for treaty scrutiny and why legislative and cultural change are needed to improve Parliament's scrutiny role. Our evidence joins calls for a parliamentary consent vote for the most significant agreements, a stronger role for Parliament in shaping negotiating mandates and monitoring progress, and a sifting committee tasked with determining which agreements warrant the greatest scrutiny.

03 Jun 2025
Read more