Secondary Legislation Scrutiny Committee
Corrected oral evidence: Statement of Changes to the Immigration Rules and Immigration (Electronic Travel Authorisations) (Consequential Amendment) Regulations 2023
Thursday 11 May 2023
10 am
Watch the meeting
Members present: Lord Hunt of Wirral (The Chair); Baroness Harris of Richmond; Baroness Lea of Lymm; Lord Powell of Bayswater; Baroness Randerson; Baroness Ritchie of Downpatrick; Lord Russell of Liverpool; Lord Thomas of Cwmgiedd.
Evidence Session No. 1 Heard in Public Questions 1 - 15
Witness
I: Lord Murray of Blidworth, Parliamentary Under-Secretary of State for Migration and Borders, Home Office.
USE OF THE TRANSCRIPT
12
Lord Murray of Blidworth.
Q1 The Chair: Good morning. This is a formal evidence-taking session that is on the record and is being webcast live. A transcript of the session will be put on the public record in printed form and on the parliamentary website, and we will send you a copy of it for the amendment of any errors. In welcoming the Minister, I must ask my fellow committee members if they have any interests they wish to declare for the record.
Baroness Ritchie of Downpatrick: I have a debate on a regret Motion on these regulations on Tuesday 23 May, upon which, I presume, the Minister will be answering me.
Lord Murray of Blidworth: You are right.
Baroness Ritchie of Downpatrick: I also had amendments on this issue at Committee and on Report during the passage of the parent Bill in the House of Lords last year.
Q2 The Chair: Are there any other interests to declare? No. This session is scheduled to last for up to 45 minutes. We may wish to ask for further supplementary information in due course. Minister, Lord Murray of Blidworth, Parliamentary Under-Secretary of State for Migration and Borders, you are very welcome. Thank you very much for taking the time and the trouble to come and exchange some questions and answers with us.
We will focus this morning on two separate but related subjects. First, there are the issues arising from two statutory instruments that bring into force various aspects of electronic travel authorisations, or ETAs. ETAs are new requirements that mean that all non-British or Irish passengers visiting the UK who do not currently need a visa will be required to obtain permission in advance and submit biometric information. We will be asking about the substance of the instruments and the information that was submitted when they were laid.
Secondly, we will pick up on the theme of the processes around secondary legislation to ask about Home Office practices—in particular, your role as Home Office Minister with responsibility for statutory instruments.
I will start, though, on impact assessments. In October 2022, this committee’s report on impact assessments discussed how Whitehall departments were providing Parliament with poor-quality impact information, or providing the information only after the scrutiny process had finished.
In the debate on the report, the Lord Privy Seal, Lord True, noted the degree of concern that had been expressed in the Chamber and agreed that Parliament’s role of scrutinising policy and holding the Government to account requires complete and comprehensive information, including impact assessments. Why did the department decide not to publish any impact assessment information with this legislation?
Lord Murray of Blidworth: By way of overview, I can reassure the committee that the Government entirely understand the importance of transparency, scrutiny and the publishing of impact assessments. It is certainly the Government’s intention to publish equality impact assessments where appropriate.
In relation to the ETA immigration rules and Immigration (Electronic Travel Authorisations) (Consequential Amendment) Regulations, our ambition was to publish an impact assessment that reflected the exact fee for an ETA. Our view was that it would be more beneficial to publish an impact assessment that reflects the final policy approach and its impacts. One could go further than that and say that it would be a much less useful document without the precise fee.
It is certainly the Home Office’s intention to publish an economic impact assessment for the introduction of the ETA once the fee is agreed with the Treasury. That is why the equality impact assessment was not released with the regulation in this case. The regulation had to be published and could not wait for the EIA—I realise that will be the next question—because the introduction of ETA is on a fairly rigid timetable, and the regulations needed to be laid in order to have the legal arrangements in place to allow the commencement of the introduction of the scheme, initially with Qatar, towards the end of this year.
Q3 Baroness Harris of Richmond: Good morning, Lord Murray. Again, thank you for coming. Even without the information on the fees, which you have told us about, the department must have had some impact assessment information that could have assisted us with scrutiny. Why was this not published? Probably more specifically, why was it not included in the EM, please?
Lord Murray of Blidworth: The EM and the EIA are different documents and perform a slightly different purpose. The Explanatory Memorandum is to describe to a layman the purpose of the regulation and to provide easy guidance on what the regulation is intended to achieve. The purpose of an equality impact assessment is rather different. That is to provide information as to the potential impact of the regulation.
In the case of this ETA, one of the biggest impacts will be the financial impact caused by the introduction. The level of the fee is therefore a vital component. I am afraid that I sort of loop back to my earlier answer: that, without that piece of information being finalised, there was not much that an equality impact assessment would have been able to inform the committee. I am afraid that that is why the decision was taken.
Baroness Harris of Richmond: Could that not have been expressed in your response?
Lord Murray of Blidworth: Yes, it could, in theory. I agree. I am afraid that I am unfamiliar with what was in the response, but clearly that is the case, I am afraid.
Baroness Harris of Richmond: I understand that you have not been able to say when the IA will be published, because you have not decided yet. Did you indicate that it could probably be at the end of the year?
Lord Murray of Blidworth: Do you mean the end of last year?
Baroness Harris of Richmond: No. I had understood you to say that you would be doing it later in the year.
Lord Murray of Blidworth: I hope that it will be shortly, because we need to have the fees agreed before we enable the ETA scheme. As soon as the fee level is agreed, we will publish the equality impact assessment.
Baroness Harris of Richmond: Do we know when that might be?
Lord Murray of Blidworth: I am afraid that I cannot bind the hands of the Treasury, much as I might like to. I am afraid that I cannot give you anything more precise. Clearly, we need to have a fee figure in order to switch on the scheme, so there is, as you can imagine, considerable pressure from both you and me to crystallise all this.
Q4 Baroness Randerson: Following on very closely from Baroness Harris, do you accept that, as an expert committee, we appreciate the difference between the two documents?
Lord Murray of Blidworth: Of course.
Baroness Randerson: Our concern was, overwhelmingly, the lack of information being provided as to why. If we had had that information, we probably would not all be here today, because we would have understood, at least in part, the issues that hampered the department in publishing it.
Lord Murray of Blidworth: I can entirely empathise with the position the committee found itself in. Unfortunately, the pieces of the jigsaw did not all arrive at the same time, and I must apologise for that.
The Chair: We now move on to the Ireland/Northern Ireland border.
Q5 Baroness Ritchie of Downpatrick: Minister, you are very welcome. We were told that there will be no immigration controls whatsoever on the land border between the Republic of Ireland and Northern Ireland, on which there are about 300 crossings—I know some of them very well—and likewise, we assume, for crossing from Northern Ireland to the rest of the UK.
I realise that in the regulations an exemption was brought forward and various discussions took place between the Home Office, representatives from the Irish Government and others discussing those particular issues. There are many people who go for hospital appointments along the border in Newry, Derry and Enniskillen, for example, and who are foreign nationals working in Northern Ireland but living in the Republic of Ireland.
Is it correct that foreign nationals who are subject to the requirement to have an ETA would normally be able to enter Northern Ireland and subsequently mainland UK without undergoing any immigration checks? Some of them may work in Northern Ireland and live in the Republic, and some may have hospital appointments or children attending school in either jurisdiction.
Lord Murray of Blidworth: Thank you for that question, because it is a very important area. I can entirely understand why you ask the question. Forgive me because I am going to answer at some length, but it is important that I set out the position.
I can reassure you from the off that the UK will not operate routine immigration controls on journeys from within the common travel area, with no immigration controls whatsoever on the Ireland-Northern Ireland land border. However, as is currently the case, individuals arriving in the UK, including those crossing the land border into Northern Ireland, will need to enter in line with the UK’s immigration framework, including the requirement to obtain an ETA when it is introduced.
For example, visa nationals are required to obtain a visa for the UK when travelling via Ireland in order to enter the UK lawfully. This is a well‑established requirement. We are simply extending the same principle to individuals requiring an ETA, although third country nationals legally resident in Ireland are exempt from the requirement to obtain an ETA when travelling to the UK on a journey within the common travel area.
In order to benefit from this exemption, if required by a UK immigration official, non-Irish residents of Ireland will need to provide physical evidence that demonstrates that they are legally resident in Ireland. The Home Office will provide guidance in due course of what is acceptable evidence.
Baroness Ritchie of Downpatrick: When will that guidance be published?
Lord Murray of Blidworth: That is a very good question. I am afraid that I do not have an answer immediately to hand. I can write to the committee to confirm if the senior responsible officer does not provide me with it by the end of the session.
Baroness Ritchie of Downpatrick: Personally, I agree with the exemptions, because it was going to cause immense problems. Do the Government see this policy as undermining a policy objective of preventing the travel of those foreign nationals who may pose a threat to the UK?
Lord Murray of Blidworth: I agree with you that there is a balancing act to be performed. That is clearly a risk that needs to be measured against. That has been weighed in the balance in formulating this policy, and I hope that we have arrived at the correct position in respect of that.
Q6 Baroness Ritchie of Downpatrick: I realise that many of these people are children going to school. They are going for hospital appointments or to their place of work. They may live in one place and work in the other jurisdiction. I raised those during Committee and on Report during the passage of the Bill last year.
I would like to move on to the tourism aspect, upon which my regret Motion is based. This is where a problem arises. Twenty-five per cent of Northern Ireland’s tourism revenue is generated by international visitors arriving in the Republic of Ireland and crossing the land border into Northern Ireland. They arrive at either Shannon Airport or Dublin Airport. That figure is significant to the tourism economy in Northern Ireland.
There are 300 land crossings between the Republic of Ireland and Northern Ireland. Therefore, will the requirement to apply and pay for an ETA have a detrimental impact on tourism in Northern Ireland? What discussion have taken place with Tourism NI, Tourism Ireland and other potential actors that have a direct input into this, such as the Northern Ireland Tourism Alliance, and that have undertaken quite significant assessments?
I was a former Member in the other place and I was very conscious that our tourism industry relied on these people, mostly people from North America. What discussions have taken place? What is your view or perception of the potential detrimental impact on tourism in Northern Ireland and on the local economy?
Lord Murray of Blidworth: Again, you flag a difficult problem. The Home Office has considered the request to exempt from the ETA requirement tourists visiting Northern Ireland from the Republic of Ireland. Ultimately, an exemption in this vein would undermine the rationale for introducing the ETA scheme and the opportunity the scheme provides to further secure the common travel area. Those visiting the UK, including those crossing the land border into Northern Ireland, will be required to obtain an ETA when it is introduced.
On the second part of your question about our engagement with the tourism sector in Northern Ireland, the Government remain committed to working with them and a wide range of stakeholders, including Tourism Ireland and Tourism Northern Ireland, to ensure the ETA requirement is communicated effectively through targeting messaging in a variety of channels, in order to mitigate any risk of it being seen as an increased barrier to cross-border tourism on the island of Ireland.
I should say this: I think that, for many tourists visiting Ireland from a visa country, the process of obtaining an ETA will be incredibly simple, straightforward and inexpensive. I would hope that the impact can be effectively mitigated, but I appreciate that it is a difficult question. I hope that makes the Home Office’s position clear.
Baroness Ritchie of Downpatrick: Thank you, Minister. I will pursue the issue further during the debate.
The Chair: That is on 23 May.
Lord Murray of Blidworth: Just on the question about the date of publication of the guidance, we have no date yet for the publication of the guidance, but it will be shortly and we will certainly keep the committee updated.
Baroness Ritchie of Downpatrick: Could you define “shortly”, or do so in written correspondence to us?
Lord Murray of Blidworth: As I said in relation to the impact assessment, all these pieces need to be brought together in order to switch on the scheme, so we are under the same pressure.
The Chair: That is reassuring.
Q7 Baroness Lea of Lymm: Good morning, Minister. It is lovely to have you here. I understand from your department’s responses that there is currently no suitable technology for implementing fingerprint verification in ETAs. I also understand that the Home Office currently has no estimate of the timetable or the costs for introducing the fingerprint verification.
The first question has to be why it is appropriate, or considered appropriate, to introduce legislation enabling the use of fingerprint information before the relevant technology has actually been developed and the costs are known. It all seems a bit pre-emptive, if you know what I mean.
Lord Murray of Blidworth: The principal biometric for an ETA will be a photograph and then a facial profile will be obtained of the applicant. That can be used for the purpose of them entering the country. It is hoped that in due course they will be able to use the e‑gates, and their face from their ETA will be sufficient to open the e‑gates. It should make the access for those visiting from non-visa countries extremely smooth.
Many countries, particularly our friends across the channel, are introducing a similar scheme, but theirs involves the registration of fingerprints as well. The difficulty with that at this stage, given the state of the technology, is that they will require people to deposit fingerprints and photographs every time they enter and leave the EU. That is a different approach.
The approach we have adopted will be smoother. The technology is nearly there to enable the collection of fingerprints on a remote basis. We are hopeful that that will be available in the medium term, so it is appropriate, in the Home Office’s view, to make provision in the regulations for that sort of biometric. In the first instance, as you know, it is simply the face that is being used as the biometric for these purposes.
Baroness Lea of Lymm: You still think it is appropriate to introduce the legislation at this stage before everything is put into place or decided on the technology.
Lord Murray of Blidworth: Yes, because the same legislative framework is required. The particular type does not need to be specified. There is no need for separate legislative provision. It makes more sense to have it all in the same instrument.
Baroness Lea of Lymm: As you already implied, once you have all the information, you will be publishing it before the introduction of the fingerprinting. Is that correct?
Lord Murray of Blidworth: I would imagine so. I would anticipate that that would be the case.
Baroness Lea of Lymm: We hope so.
Lord Murray of Blidworth: Yes.
The Chair: We turn now to the more general duty you have, being responsible for the preparation of statutory instruments in the Home Office.
Q8 Lord Russell of Liverpool: Minister, could you explain the normal sign-off procedure for statutory instruments in the Home Office?
Lord Murray of Blidworth: With regard to the drafting itself, each statutory instrument is drafted by a lawyer and then reviewed by a senior lawyer. The department also operates a third pair of eyes check, drawing on a pool of lawyers to ensure that the legislation is drafted uniformly to a high standard.
With regard to the supporting documentation, Explanatory Memoranda are cleared by the policy senior responsible officer—SRO—together with the drafting lawyer. The statutory instrument senior responsible officer also then reviews again all the Explanatory Memoranda before the final documents are submitted to Ministers for clearance. So SIs are cleared by the SI senior responsible officer and the relevant policy senior responsible officer. At ministerial level, they will then be signed off by the Commons and the Lords policy Ministers. As the SI Minister myself, I am entitled to see all SIs. If there are any particularly controversial or difficult SIs, I will see them.
Q9 Lord Russell of Liverpool: Can we move on specifically to Explanatory Memoranda? In recent months, 17% of the Home Office’s EMs have had to be replaced because they were not up to the required standard, often because they were missing key information. That is significantly higher than what we would expect and normally find from other departments, so the Home Office is not covering itself in glory in this area. We would therefore be interested to understand what quality assurance checks you have to try to reduce that level. Do you feel that it is being done at the right level of seniority?
Lord Murray of Blidworth: I am disappointed by the figure you mention. Speaking for myself, I take our obligations very seriously and I appreciate the vital role that Explanatory Memoranda play in providing a clear explanation to both Parliament and the public about the impact of legislation.
Our Explanatory Memoranda are drafted by officials using a template and guidance, which are available on the department’s intranet. Each Explanatory Memorandum is reviewed by the relevant SRO policy officer, as I have already described, and we have the peer reviewers across the department who provide a third pair of eyes and an added quality assurance check.
There is an ongoing learning process in relation to previous experience with Explanatory Memoranda. We seek to draw on our expertise within the department to ensure that each Explanatory Memorandum is of a consistently high-quality standard. Drafting Explanatory Memoranda is part of our regular secondary legislation training. The department’s central legislative strategy team has hosted a number of sessions with the Secondary Legislation Scrutiny Committee to share tips on what makes an effective Explanatory Memorandum.
Where we submit an unsatisfactory Explanatory Memorandum, the central legislative strategy team will usually follow up with the relevant civil servant and policy team to explain the risk of poor-quality Explanatory Memoranda, encourage constructive engagement with the clerk and follow up on detail to aid the scrutiny of the instruments and offer further support to our staff through further training and guidance.
The Chair: In the light of the comments you have just made, my colleague, Baroness Randerson, would like to ask further questions on the whole question of training.
Q10 Baroness Randerson: You mentioned, Minister, an ongoing learning process. Can you explain to us what training and supervision officials have when they first take this responsibility? Are you operating entirely within the Home Office, or is it a standard process across government that they participate in?
Lord Murray of Blidworth: The legislative strategy team in the Home Office manages an extensive capability training programme for teams across the Home Office. It oversees a network of statutory instrument co-ordinators and Explanatory Memorandum peer reviewers in each of the department’s missions. You can imagine that, in the Home Office, there is quite a broad ambit of potential scope for SIs. These ensure that we continue to deliver as high-quality legislation as is expected.
The training programme also provides a framework for senior officers. We have also run bespoke sessions in the past where your clerks have been kind enough to speak to officials about the required standard for Explanatory Memoranda and best practice on drafting. We like to keep that dialogue open, so our training sessions are always fit for purpose and reflective of the committee’s feedback. I should add that there are various other capability forums in which training and communication is provided—for example, via blogs on the intranet and communication at director-general level from our parliamentary champion.
Baroness Randerson: That all sounds very thorough, but I am sure, as you have already acknowledged, that it is disappointing to everyone that there is such a high failure rate, if I could put it that way. Something has to be going wrong at some point. How are senior officials signing off on things that are less than the required standard? What training is given to the more senior officials so that things that have not been got quite right at first attempt are not signed off as acceptable?
Lord Murray of Blidworth: As I have already set out, the senior-level staff are also subject to training and are part of the networks for learning that I outlined a moment ago. The statutory instrument senior responsible officer is also the deputy director of the parliamentary and legislation team.
The principal responsibility of the senior responsible officer is to ensure that our secondary legislation programme is well managed through Parliament, that it is quality assured and that the Explanatory Memoranda perform their purpose. Clearly, there will regularly be a range of opinions as to what should be or not be in an Explanatory Memoranda. We are very grateful for the assistance that this committee provides to us.
Baroness Randerson: Thank you. That is helpful.
Chair: We turn to the role of the senior responsible officer and your own role as departmental Minister.
Q11 Lord Powell of Bayswater: Welcome, Minister, and thank you for coming. To help us situate in our minds the role of the senior responsible officer, what is his or her actual rank in the department, either in Civil Service terms or just in descriptive terms of the job? What other functions does he or she perform besides being the senior responsible officer for secondary legislation? What proportion of his or her time is spent on the SRO role compared to other roles?
Lord Murray of Blidworth: The SRO tells me that she is an SCS, a senior civil servant, and she is the deputy director, as I said, for the parliamentary and legislative team. The conduct of parliamentary business is her whole role, and SIs, given that this is the Home Office, are a substantial part of that role. I hope that answers the question.
Lord Powell of Bayswater: Yes, I think it probably does for today’s purposes.
Q12 Lord Thomas of Cwmgiedd: Minister, as probably the last person to ask you general questions, may I also welcome you and thank you for finding the time after last night to come? I wanted to ask you a bit about your own responsibility. Could you describe your functions as the departmental Minister with responsibility for secondary legislation?
Lord Murray of Blidworth: My role is to oversee the secondary legislation programme. I receive weekly written updates from the legislative strategy team, which highlight emerging issues that may impact on the timely delivery of the programme. In particular, these updates note statutory instruments that are awaiting parliamentary debate, such as the one we have just discussed, drawing out prayer Motions that have been tabled by Members as well as a list of statutory instruments that are expected to be laid in the next three months.
I meet with the SRO on a monthly basis to discuss the programme. As we have already discussed, the SRO is the deputy director of the parliamentary and legislation team. That role is conducted in line with guidance from the Cabinet Office on their responsibilities, ensuring that our secondary legislation is provided in accordance with the schedule and appropriate governance in place.
The Home Office secondary legislation programme is a part of the departmental legislation board and is responsible for the department’s planning processes, reviewing the timing and quality of secondary legislation and immigration rules changes, and driving effective prioritisation and de-prioritisation of SIs. Senior representatives from the Home Office legal advisers, Home Office analysis and insight, and finance attend to consider future legislative planning and ensure that sufficient departmental capacity is available to deliver the SI programme.
Q13 Lord Thomas of Cwmgiedd: What are your own responsibilities for ensuring the quality of the legislation and the associate documentation? If there is an important statutory instrument likely to be the subject if an affirmative resolution, do you look at the Explanatory Memorandum before it is sent out, or are you a bit like some Silks who never read the skeleton argument that they will subsequently have to defend?
Lord Murray of Blidworth: I cannot confess that I read every SI that the Home Office lays before Parliament and every Explanatory Memorandum. If there was a really controversial or difficult SI, the expectation is that it would be raised with me as the SI Minister and I would review it.
Lord Thomas of Cwmgiedd: Do you then, in that process, go through it, read it and say, “Look, this hasn’t got the right disclosure. You ought to be making this point and that point”, a bit like you would as a Silk dealing with your junior?
Lord Murray of Blidworth: I shall certainly take that away and adopt that as best practice.
Q14 Lord Thomas of Cwmgiedd: I am not going to steer into the area of best practice in Whitehall. That is way beyond my experience. Could I ask you one final question? Within the department, there obviously has to be a degree of accountability for the quality of secondary legislation and the associated documentation. To get accountability, one needs a mechanism for enforcement. Are you able to add to what you have already said about that subject?
Lord Murray of Blidworth: I am afraid I do not have very much to add. Accountability is important, which is why I am here. It is important that these issues are raised. It has been a useful process, both for the department and for me, to have your thoughts on these topics.
Lord Thomas of Cwmgiedd: That is very kind of you. Of course, you have the problem that the Home Office produces some of the most high‑profile secondary legislation, so the job you have is really quite tricky. I do sympathise.
Lord Murray of Blidworth: Thank you.
Q15 The Chair: It might be a really good opportunity now for us to recognise that, while your responsibilities are in the Home Office, there are Ministers in each department with a similar responsibility for statutory instruments. Certainly this committee would be greatly reassured if there was some interdepartmental contact between the Ministers responsible for secondary legislation. Has there ever been any meeting of all those who are responsible? Particularly now that statutory instruments are coming into the spotlight more and more, do you not think that it might be a really good idea for there to be an exchange of views between the Ministers responsible?
Lord Murray of Blidworth: I am a moderately new member of the Government. My understanding is that the PBL—Parliamentary Business and Legislation—committee, chaired by the Leader of the House of Commons with the Leader of this House and the Chief Whips respectively, keeps a careful eye on the legislative programme and, indeed, the SI programme. They are the conduit through which all departments process their requests to put SIs before Parliament. That is, I would expect, the method by which respective SI Ministers would be in touch with one another. There are conceivably SIs that might require cross-departmental involvement, but I have yet to have experience of that.
The Chair: Do you think it might be quite a good idea?
Lord Murray of Blidworth: I can see that in principle, absolutely. I see the sense in what you are saying.
The Chair: We might follow this up after a period, where you might take the opportunity perhaps of making sure not only that you know the full range of Ministers who have similar responsibility to you in other departments, but that you are able to exchange ideas on how better to ensure that the quality of statutory instruments continues to improve.
Lord Murray of Blidworth: Yes, indeed. I suspect that there is probably quite a high level of communication between officials who have the same equivalent roles as the SRO in the Home Office. Can I take that away and write to the committee in respect of it?
The Chair: I think we would all be very pleased indeed if something were to happen in that direction. We are focused all the time on the need to improve the quality of statutory instruments.
Thank you so much after a very huge debate yesterday, in which, as I understand it, you were there throughout until a very late hour. May we congratulate you on your stamina? It really has been a very helpful session that we have learned a great deal from. We are very grateful to you for coming to talk to us.
We look forward to any further information on ETAs that is forthcoming. You have made one or two promises to follow up and we look forward to receiving that further information. Can I conclude by thanking you and saying that we now look forward to seeing a continuing improvement, particularly in the high-quality Explanatory Memoranda that are going to emerge on secondary legislation from the Home Office? Thank you very much indeed.