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Nationality and Borders Bill: A Rule of Law Analysis of Clauses 67 to 80

Dr Ronan Cormacain

Nationality and Borders Bill: A Rule of Law Analysis of Clauses 67 to 80

Executive Summary

This Report analyses Clauses 67 to 80 of the Nationality and Borders Bill from a Rule of Law perspective. It follows on from our two previous Reports on the Bill.

Clause 67 provides that anything in the Trafficking Directive which is incompatible with the Bill ceases to be law. However, it does not specify which provisions of the Trafficking Directive this applies to. Either the Government knows what provisions it wants to disapply but is not saying, or it does not know what provisions it wants to disapply. Both options undermine the legal certainty required by the Rule of Law. This Clause should either be dropped, or else accompanied by a full set of consequential amendments and repeals.

Clause 76 undermines the right of effective access to a court by granting a power to immigration tribunals to charge legal representatives for wasted resources as a result of acting improperly, unreasonably or negligently. This will have a chilling effect on the ability of lawyers to vigorously present arguments on behalf of their clients.

Clause 78 introduces powers to help consolidate immigration legislation. This will promote the Rule of Law values of accessibility and intelligibility of legislation and is to be welcomed.

Clause 80 contains a Henry VIII power, allowing the Secretary of State to make regulations which amend or repeal an Act of Parliament. This kind of clause undermines parliamentary sovereignty, legal certainty and the Rule of Law.

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