Bringing together researchers, practitioners and policy makers working with migrants, refugees and asylum seekers in Scotland
The Immigration Bill, which received its third reading in the House of Lords on 12th April, affects inter alia the labour market, residential tenancies, bank accounts, driving licences, immigration officers’ enforcement powers, immigration detention, and support for migrant children. Although ostensibly designed to make immigration control more effective, one of its striking features is the extent to which it enlists private sector actors as agents of immigration control. This post concentrates on the Bill’s intrusions into the devolved competence of the Scottish Parliament (SP) and the implications for the delineation of the SP’s powers, the operation of the Sewel convention and the relationship between the UK government and devolved governments. It considers these issues in relation to its residential tenancies provisions, and focuses on Scottish devolution, although the implications extend to all devolved jurisdictions. In our view, these provisions have such a large effect on devolved matters that the consent of the SP should have been sought.
Provisions on Residential Tenancies
The Bill’s precursor, the Immigration Act 2014, required landlords to carry out immigration status checks, and imposed financial penalties. These provisions have thus far only been brought into force in England, but they apply to the whole of the UK.
The Immigration Bill enlists the aid of private sector landlords still further but it takes a different approach to the 2014 Act in that there is separate provision for different parts of the UK. The principal measures
These are far-reaching changes to landlord and tenant law but they apply only to England and the Bill makes no equivalent provision for the rest of the UK. Instead Clause 44 enables the Secretary of State by regulations “to make such provision” as s/he “considers appropriate for enabling any of the residential tenancies provisions to apply in relation to Wales, Scotland or Northern Ireland.” The Secretary of State can also make regulations with similar effects and these will apply to the devolved jurisdictions. Such regulations may amend, repeal or revoke any enactment. This is, therefore, a cross-border Henry VIII clause enabling the Secretary of State to make important changes to criminal and private law in an area of policy which has generally been regarded as devolved (i.e. landlord and tenant law) with minimal parliamentary scrutiny and without the agreement of the devolved governments or the devolved assemblies.
An exchange of correspondence released by the UK Government on 18th March 2016 reveals that the Scottish Housing Minister, Margaret Burgess MSP, took the view that the Immigration Bill’s residential tenancy provisions affected devolved matters and so required the consent of the SP. She urged James Brokenshire MP, Minister for Immigration, to amend the Bill so as to impose a duty to seek the SP’s consent before regulating to translate the residential tenancy provisions into Scots law. The same argument has been made by others including a coalition of Scottish housing bodies. James Brokenshire’s response was that, “as immigration is a reserved matter” the SP’s consent was not required. We agree with Margaret Burgess; these provisions concern devolved matters and the consent of the SP should have been sought.
The Constitutional Issues: Legislative Competence and the Sewel Convention
The Sewel convention is that the UK Parliament should not normally legislate with regard to devolved matters in Scotland without the consent of the SP. The convention is an essential feature of the devolution settlement as, despite the Scotland Act 1998 (SA), the UK Parliament retains authority to legislate for Scotland on any issue. If devolution is to achieve its primary purpose of giving the Scottish people a large measure of self-government, it is necessary for the UK Parliament to refrain from exercising its legal power to legislate for Scotland on devolved matters in the normal course of events.
Deciding on the scope of the convention is not straightforward. It is in part a question of law because the distinction between devolved and reserved matters is defined in the SA. But it cannot be treated as solely a question of law, because as with any convention, its content depends in part upon political practice, and its content may change over time.
So, we will consider first the legal question of how the residential tenancy provisions of the Bill relate to the competence provisions of the SA, and then the broader question of whether the Sewel convention applies.
The primary rule in the SA for deciding if a matter falls within the competence of the SP is that a provision is beyond competence if it “relates to reserved matters” (s. 29(2) SA). That provision is amplified by s. 29(3) which states that:
“… the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.”
In this case, the reserved matter relied on by the UK Government is immigration control. These provisions are not conventional immigration measures; they do not concern the substantive rules under which persons are admitted or refused entry to the UK or the administration of immigration control. But they are intended to make immigration control more effective. Clearly, the purpose of the provisions relates to the reserved matter of immigration control, but the question of competence cannot be decided by reference to purpose alone. Regard must also be had (among other things) to their effects. The effects of these provisions will be felt in the field of landlord and tenant law. They will change existing laws including a number which are currently contained in ASPs. Regulations made under Clause 44 will amend provisions of ASPs. These effects might also be described in terms of purpose, i.e. that the purpose of the measure is to change the rights and obligations of landlords and tenants in Scots law. On that view, the provisions would have two purposes.
The SA itself does not provide any general guidance on the relative importance to be attached to the purpose(s) and effect(s) of a measure. Lord Kerr suggested, in Martin v Most  UKSC 10; 2010 SC(UKSC)40, that purpose was more important than effects: “It seems to me obvious that the way in which the subsection is structured signifies that the effect of the provision is subordinate to its purpose in the inquiry as to whether it relates to a reserved matter.” If that is correct, it supports the UK government’s position on the legal question. The dominant purpose appears to be to enhance the effectiveness of immigration control which is a wholly reserved matter. If instead, the UK Government had requested that the SP enact equivalent provisions, the SP would be acting to enhance immigration control. The dominant purpose of the legislation would, therefore, relate to a reserved matter and the provisions would be beyond its competence.
But, accepting that only the UK Parliament has legal competence to enact measures equivalent to those in the Immigration Bill does not settle the question whether the Sewel Convention applies to the Bill.
When does the Sewel convention apply?
Devolution Guidance Note 10 sets out the UK Government’s views: “The convention applies when legislation makes provision specifically for a devolved purpose … ; it does not bite when legislation deals with devolved matters only incidentally to, or consequentially upon, provision made in relation to a reserved matter” (para. 1). That statement is amplified by para. 4 which states that the consent of the SP is required only where a Bill “contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers”, although where other Bills have effects on devolved matters UK departments are expected to consult the Scottish Government.
Even if we accept that immigration control is the dominant purpose of these provisions of the Immigration Bill, it is difficult to argue that the changes to the devolved matters of landlord and tenant law are merely incidental to, or consequential upon a reserved matter.
The problem is that DGN 10 does not address the full range of situations that arise in considering legislation. In particular, it does not address the situation where a Bill relates to reserved matters and so is outside the competence of the SP, but also has major effects on devolved areas of law and policy, or where a Bill has multiple purposes, some of which are devolved and others reserved. The problem is magnified where the Bill affects a number of devolved areas simultaneously. We have concentrated on the residential tenancy provisions but the Bill also has effects on local authority child protection and welfare functions, and licensing of private hire vehicles (all devolved areas).
We have several concerns.
First, it seems incompatible with the spirit of the Sewel convention to enact legislation which has major effects on devolved areas of law and policy without any input from the SP. If it is accepted that the convention does not apply whenever the dominant purpose is a reserved one, that would potentially justify many other dubious incursions into the devolved sphere whether based on the immigration rationale or other reserved subject matters. Thus, a future UK Government might propose legislation requiring Scottish education authorities to ensure that school places in their areas were not allocated to children with precarious immigration status, or conferring power on the Home Secretary to direct the Scottish Police Authority to allocate greater resources to the enforcement of the Misuse of Drugs Act 1971.
Secondly, the method of law reform chosen is wholly inappropriate. The use of a Henry VIII clause always carries a heavy burden of justification and was criticised by the House of Lords’ Delegated Powers and Regulatory Reform Committee. It means that there has been full parliamentary scrutiny of the residential tenancy provisions as they apply to England but there will be only minimal parliamentary scrutiny of the equivalent Scottish measures. The SP has not examined the Bill and the Sewel convention will not apply to any regulations made under Clause 44. To bypass the SP by a measure that also effectively bypasses the UK Parliament is to add constitutional insult to constitutional injury.
Thirdly, in addition, to the objection in principle to having differential levels of parliamentary scrutiny for different parts of the UK, the use of the Henry VIII clause creates problems of relative expertise. This is a complex and technical area of law and it is the Scottish Government and not the UK Government which has expertise in Scots landlord and tenant law, so the possibilities of ill-considered legislation which subsequently causes legal confusion are magnified by leaving changes to the law entirely in the hands of UK ministers.
The Future of the Sewel Convention
The UK government’s current approach to the Sewel convention is constitutionally unsound. The Immigration Bill demonstrates that important questions have been left unresolved, notably whether the convention applies when a Bill clearly has a reserved purpose but also has substantial effects upon devolved matters. It also demonstrates that the UK government has too much freedom to determine the scope of application of the convention when there ought to be a shared understanding between the UK and the devolved parliaments and executives.
The Scotland Act 2016 places the convention on a statutory footing, and extends the competence of the SP substantially. It makes income tax and social security benefits shared functions, potentially increasing the possibilities for conflict over the Sewel convention’s operation. How far it will prove to be justiciable is unclear, but the 2016 Act can be seen as confirming the importance of the Sewel convention, and the need to reconsider it.
A longer version of this post originally appeared on the Scottish Constitutional Futures Forum blog.
Tom Mullen is Professor of Law at the University of Glasgow.
Sarah Craig is Senior Lecturer in Law at the University of Glasgow.