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)