Justice and Security Bill
Delegated Powers – Supplementary Memorandum by the Cabinet Office
1.
The Government has tabled amendments to Part 2 of the Bill for Lords
Committee stage, a number of which have implications for the delegated powers
under the Bill. This supplementary memorandum to the Delegated Powers and
Regulatory Reform Committee (“the Committee”) addresses in particular
amendments 88 to 92 which relate to the Special Immigration Appeals Commission.
Clause 16: new subsections (4A) and (4B) – power to extend clause 12 and
paragraph 7 of Schedule 2 to the Channel Islands and the Isle of Man and to
make transitional provisions (amendment 92)
Power conferred on:
Her Majesty
Power exercisable by:
Order in Council
Parliamentary procedure:
None
2.
Clause 12 of the Bill provides for certain exclusion, naturalisation and
citizenship decisions based upon sensitive material to be reviewed on judicial review
principles by the Special Immigration Appeals Commission. Paragraph 7 of Schedule
2 to the Bill makes a number of consequential amendments to the Special
Immigration Appeals Commission Act 1997 (“the 1997 Act”) to enable the procedure
envisaged by clause 12 to operate properly. The amendment introducing new
subsection (4A) to clause 16 allows for Her Majesty to provide for clause 12 and
paragraph 7 of Schedule 2 to extend, with or without modifications, to any of the
Channel Islands or to the Isle of Man. This type of provision is known as a
permissive extent provision.
3.
The amendment has been brought forward with the support of the Channel
Islands and the Isle of Man. Without it, there would be a real risk of inconsistency,
whereby claims would be settled one way on the UK mainland, and another in the
Crown Dependencies. There is already a permissive extent provision in the 1997
Act, which clause 12 and paragraph 7 of Schedule 2 would amend. Accordingly, new
subsection (4A) would ensure that the amendments made by clause 12 and
paragraph 7 of Schedule 2 are subject to the same permissive extent provision as
the rest of the 1997 Act.
4.
As is the standard arrangement for permissive extent provisions, the making
of an Order in Council under clause 16(4A) is not subject to any Parliamentary
procedure. It is considered that there is no reason to depart from this standard
arrangement.
5.
Amendment 92 would also introduce a new subsection (4B) to clause 12. This
provides for the power to make transitional provisions when making an order under
new clause 16(4A). In particular, the power to make transitional provisions extends
to making provision of the kind permitted by new paragraph 3A of Schedule 3 which
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is discussed below. For the reasons provided below, this type of transitional
provision is considered necessary and once again, it is considered that there is no
reason to depart from the standard arrangement that such provision be made
through an Order in Council with no attaching Parliamentary procedure.
Schedule 3: new paragraph 3A (amendments 88 to 91)
Power conferred on:
Secretary of State
Power exercisable by:
Order made by statutory instrument
Parliamentary procedure:
None
6.
New paragraph 3A of Schedule 3 to the Bill clarifies an aspect of the order
making power to make transitional provisions in clause 15(2). The paragraph
concerns decisions or directions falling within the meaning of new sections 2C(1) or
2D(1) of the 1997 Act (which would be introduced by clause 12) which were made
before clause 12 comes into force. Paragraph 3A(2) enables transitional provisions
to be made to allow the Secretary of State to certify such decisions with the result
that any pending judicial review proceedings (or appeals from such proceedings) are
terminated. The decision or direction can then be heard afresh in the Special
Immigration Appeals Commission under the procedure introduced by clause 12.
7.
At the last count, there were thought to be around 60 naturalisation and 4
exclusion cases in the High Court, in which the Secretary of State’s decision was
based at least partly on sensitive (‘closed’) evidence. The policy intention behind the
Bill was always that the approach taken in clause 12 would be available concerning
these existing proceedings and that the power in clause 15(2) to make transitional
provision could be used to facilitate this. This reflects the policy elsewhere in the Bill
that the closed material procedure provisions in clauses 6 to 11 and the Norwich
Pharmacal provisions in clauses 13 and 14 apply in relation to proceedings begun,
but not finally determined before the coming into force of those provisions (see
paragraphs 2 and 4 of Schedule 3 to the Bill). However, on further consideration, the
Government considers that without paragraph 3A there is doubt as to whether
transitional provisions could be made to provide for such cases to be heard by the
Special Immigration Appeals Commission under the expanded jurisdiction introduced
by clause 12. As the High Court held in the case of AHK v SSHD [2012] EWHC
1117, the inability of the High Court and higher civil courts to hear such cases could
result in key evidence being excluded through the public interest immunity procedure
causing the case to be struck out without a judicial judgement on the merits of the
decision or direction.
8.
As is common with transitional provisions, there is no attaching Parliamentary
procedure. It is not considered necessary to provide for such a procedure.
Other amendments
9.
The Committee may also wish to note the following amendments:
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
Amendment 41 would expand in a small way the power under the Bill to
make rules of court so as to require those rules to provide that the
Secretary of State is required to give notice of an intention to apply for
CMP declaration. The justification for the use of rules of court is dealt with
in paragraphs 35 to 45 of the original Delegated Powers memorandum
submitted to the Committee.

Amendment 59 would omit the order-making power contained in clause 11
of the Bill which would have enabled the definition of “relevant civil
proceedings” to be amended. This power could have been used to extend
the circumstances in which the CMP procedures in the Bill would have
been available. Amendment 59 responds to the Committee’s report on the
Bill (5th Report of Session 2012-13), along with reports by the House of
Lords Select Committee on the Constitution (3rd Report of Session 201213) and the Joint Committee on Human Rights (4th Report of Session
2012-13). This is a significant change that will ensure that the application
of the provisions of the Bill cannot be extended by secondary legislation.
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