A UK parliamentary committee has expressed concerns about the procedure used by Home Secretary Theresa May to give enhanced democratic credibility to tougher action on immigration.
Her new Immigration Rules have been presented to Parliament in a constitutionally innovative manner that may have no legal validity. This involved not simply passing the rules through the two Houses of Parliament by the traditional means for secondary legislation but having an additional debate (with no vote) in the House of Commons (but not the House of Lords) to assert the legal power of the Rules against the claims of international human rights law.
The intention behind the Statement of Changes in Immigration Rules (HC 194) was to use the debate “as a vehicle to gain Parliament’s endorsement of its approach to Article 8 of European Convention on Human Rights to assist the courts when deciding appeals on immigration matters”, noted the Secondary Legislation Scrutiny Committee of the House of Lords. (Committee Report 4.3 pdf)
However, the committee implies that the procedure was of dubious validity and constitutionally unlikely to have the desired effect – to force judges to reduce their reliance on Article 8(1) when judging immigration and deportation cases.
The reason for May’s enhanced parliamentary procedure is an alleged “democratic deficit” regarding how courts should interpret Article 8 when deportees make family rights claims to dispute deportation decisions.
May has claimed that judges would welcome guidance passed by Parliament on how Article 8 should be interpreted (though a refutation of this view is presented here) and so she presented a policy motion to the Commons on 19 June in an attempt to give the Government’s interpretation of the law democratic weight. The intention is that judges will follow the Government interpretation on “proportionality” under Art 8(2) – on the issue of when public interest can override the right to family life.
May believes the Government’s view of “ the interests of national security, public safety or the economic well-being of the country” in Art 8(2) should not be negated in individual cases by a judge’s view of Art 8(1) “Everyone has the right to respect for his private and family life, his home and his correspondence.”
But the Lords scrutiny committee notes: “While the Home Secretary’s intention is clear, there are some questions about whether the procedural approach proposed can deliver it.” It also questions why different procedures were used in the Commons and the Lords to pass the new Rules: “In the House of Commons, the Government tabled the following motion, which was agreed to without a vote on 19 June after four hours of debate:
‘That this House supports the Government in recognising that the right to respect for family or private life in Article 8 of the European Convention on Human Rights is a qualified right and agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules’.”
Meanwhile the Lords was simply required to pass the Rules in the traditional way, as a piece of secondary legislation by the “negative procedure” – placing the statutory instrument containing the new provisions in the House of Lords but scheduling no debate or vote.
In general, statutory instruments are supposed to be used for minor requirements of the day-to-day running of Government. They are generally challenged only on relatively minor issues. The debate on May’s motion is therefore quite a different beast. The Lords committee notes: “It is unclear what the courts would accept as a Parliamentary steer”, meaning what sort of debate or process in Parliament would give the tough immigration policy greater weight in judicial eyes.
‘While the Home Secretary’s intention is clear, there are some questions about whether the procedural approach proposed can deliver it’ – Lords committee report
The analogy given by May was in housing law where the issues have been debated in Parliament “over very many years”, thus producing a well tested democratic consensus. In this case, the Lords committee said, there was a possibility that any substantive debate on the new rules (as opposed to the new principle in May’s statement) could come after the rules came into force on July 9 (the Rules will lie in the House until the end of July). Indeed there may be no debate at all if no one “prays” against them – the process of getting a debate under the negative procedure. And if someone does lay a prayer against them, a vote does not necessarily occur.
There is no doubt that May has come up with a confusing and probably pointless means of giving democratic credibility to her attempts to restrict Article 8 appeals against deportation. The plan is to provide courts with a clear statement of the law (from the Government’s point of view) based in part on previous cases – though this was not presented to Parliament for endorsement. Instead there was a Commons debate on the principle that Article 8 contained merely “a qualified right” and that the Immigration Rules should take a broad degree of precedence over such a right. This passed without a vote. Meanwhile the Rules themselves were subject to the “negative procedure”, the least strict form of parliamentary oversight in passing legislation, usually for matters of no great controversy.
The Commons alone was considered the relevant body to debate May’s motion presumably because it is an elected body and the Lords is not. During the debate there was much confusion about which rules (if any) MPs were supposed to be endorsing: “the ones current on 19 June or the version amended by HC 194 which would come into effect on 9 July”. Labour members treated the motion as relating only to deportation of foreign criminals, not other Article 8 migration issues, and allowed it to pass on that basis. It is unlikely May herself considered it to be so limited, and she has made reference to immigration as well as deportation.
Her thinking seems to be based on a misreading of the doctrine in Pepper v Hart (1992) (explained here in the context of the Assange case) in which it was established that courts could look at parliamentary materials such as Hansard as an aid to interpreting legislation. However, judges will only do this if there is ambiguity in the statute they are considering. There is not ambiguity about May’s intention in her new Immigration Rules – her intention is to get round Article 8 of the ECHR. Simply reading background material into the Hansard record, as she did at length on 19 June, is unlikely to persuade judges to undertake a Pepper v Hart treatment of her words.
The debate would seem to have no constitutional import whatsoever but May will wave it under the noses of judges, arguing it has given a democratic imprimatur to the Government’s approach to expulsions in each and every case. Even the Commons Deputy Speaker, Nigel Evans, was unable to tell MPs during the debate what validity the motion would have, saying: “The legal effect of the resolution is not a matter for the Chair [ie the Speaker]; it is a matter for the courts.”
This is damning. The Commons had been called to a show debate with the Speaker himself unable to point to a precedent or explain its legal effect. It leaves open the possibility of extra legal wrangling when the next controversial deportation comes up in which the courts will be invited by lawyers for the deportee to declare the May motion nugatory and hence irrelevant to their judgment.
Should this happen, of course, May and her colleagues will castigate unrepresentative judges defying the will of Parliament and presumably proceed to bring down some legislative revenge upon them.
The Lords committee understates the position when it says that what May has attempted “may imperfectly achieve its objective”. In fact judges seem most unlikely to take seriously this cobbled-together procedure of dubious constitutional validity when considering immigration matters. It amounts to no more than a piece of political posturing.
Note: The Scrutiny Committee has issued further criticism of Theresa May following the R (Alvi) v Home Department case: here
Materials relevant to this issue:
Note on procedure for secondary legislation
A statutory instrument or regulation is a piece of legislation that a Government may pass if given powers to do so by a statute. It has such powers for immigration rules thanks to Section 3(2) of the Immigration Act 1971 (see below).
Such legislation is issued by the relevant Secretary of State and goes through either the “negative procedure” – sitting in each House for a period of time (40 days) and coming into force if there is no objection; or the “affirmative procedure”, in which, again the Statutory Instrument is placed in both Houses but a vote has to be taken in each, though not necessarily with any debate. The more important statutory instruments are supposed to be subject to the affirmative procedure.
A parliamentary glossary explains “A statutory instrument going through this [negative] procedure will automatically become law unless there is an objection from either House.” A parliamentarian may “lay a prayer” against the instrument to get it debated, but such objections are not intended to be opposition to the new legislation in principle. It is accepted that the Government must have powers, especially in areas such as immigration, in line with its duties as an Executive to protect the public interest.
The Lords scrutiny committee also has a role examining such legislation, and reporting issues of importance to the House of Lords (as in this case). The Commons does not have such a committee (though there is a Joint Committee on Statutory Instruments drawn from Commons and Lords select committees that merely publishes new statutory instruments and checks them for legal defects, for example whether they are compatible with their parent Act).
The 19 June Debate
There was some concern among Opposition members during the debate about the procedure May was using. Shadow Home Secretary Yvette Cooper said: “The Home Secretary talks about clear messages, but she is not giving a clear message to the House, never mind to the courts. She has been confused at every step about what the motion is supposed to do. Time and again, she has been asked whether it is supposed to trump case law or endorse the details of individual immigration rules, on which no opportunity for proper scrutiny has been given, and which have not even gone through the normal processes in the House. It is not clear whether this is supposed to be an endorsement of the existing immigration rules or the future immigration rules. She has not made her position clear.”
Labour MP Jeremy Corbyn said: “As nobody has a dispute about whether Article 8 is an absolute right – it has always been subject to definition by national courts – why on earth are we debating this today? Is this not just part of the Home Secretary’s general attack on the whole principle of the European Court of Human Rights and the European convention on human rights, which her Back Benchers frequently raise at every possible opportunity?” Pete Wishart (SNP) said: “I am looking at a motion that says nothing about Parliament’s view on Article 8; all it seems to be is a restatement of the bleeding obvious.” In answer May repeated her claim that there had been a “request” from the judiciary for such guidance.
Labour MP Chris Bryant doubted the efficacy of a debate in the Commons: “Furthermore, there is the question of exactly how much influence a motion of the House has … A few weeks ago, a motion of the House, which was agreed unanimously, stated that nobody wanting to come to this country from Russia should be allowed a visa if they had had anything to do with the death of Sergei Magnitsky. That motion has no force in law, however; it is just an interesting statement from the House of Commons. It has not been agreed by the House of Lords, and it has not gone through any kind of primary or secondary legislative process.”
May explained her statement thus: “With the changes that I am making, there will generally be no need for a separate assessment of Article 8 beyond the requirements set out in the Immigration Rules. Compliance with the Immigration Rules will mean compliance with Article 8, other than in truly exceptional circumstances. So, a foreign criminal who does not meet the criteria set out in the rules will be deported and they will not have a second bite at the cherry via Article 8. Similarly, a migrant seeking to come to the UK to join a partner must meet the criteria set out in the rules or a visa will be refused and there will be no separate Article 8 claim.
“So, the Immigration Rules will no longer be a mere starting point, with leave granted outside the rules or appeals allowed under Article 8 for those who do not meet them. The Immigration Rules will instead take into account Article 8, relevant case law and appropriate evidence and they will be proposed by the Executive and approved by the legislature … Where the courts consider individual deportation decisions, it should now be with consideration of Parliament’s public policy intent firmly in mind.” She added: “I am certain that the judiciary will take into account the view of Parliament. Indeed, as I have said, members of the judiciary have suggested that it would be helpful to have the view of Parliament.”
Note: As predicted above May has now (17/2/2013) launched an attack on judge’s for failing to bend to the will of Parliament on this matter, saying: “It is essential to democracy that the elected representatives of the people make the laws … and not the judges.” She intends to bring forward primary legislation to ensure it is clear deportation should occur except in “extraordinary cases”. The “weak form of Parliamentary scrutiny” outlined above was criticised in Izuazu  UKUT 45, the case that seems to have prompted the new threat from May.
Section 3(2) of the Immigration Act 1971
The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).