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Government attempt to make complex law simpler fails to make it more accessible to the citizen – Lords Committee

Friday 6 November 2020

The House of Lords Secondary Legislation Scrutiny Committee; which scrutinises policy aspects of all secondary legislation laid before the House and subject to Parliamentary proceedings has taken issue with the complexity and volume of the Government’s latest Statement of Changes in Immigration Rules. It is 507 pages in total and has an Explanatory Memorandum (a note which aims to explain what the instrument does and why) 50 pages long. 

The instrument while in part implementing simplifications requested by the Law Commission in its report on Simplifying the Immigration Rules, also deals with matters relating to the end of the Transition Period, Citizen’s Rights, and covers new policy areas such as the revised treatment of Hong Kong citizens with British Overseas passports.

In its weekly report the Committee reiterates concerns it raised last year when reporting on certain EU Exit instruments – that  large, wide-ranging instruments are too difficult to scrutinise properly and maintains the view that “combining so many policy areas in one very large instrument is wholly unjustified”.

The Committee acknowledges that the Home Office’s objective, to provide a simpler set of Immigration Rules, is a worthwhile one. However, during this transitional phase the instrument “ignores a key criterion of the Government’s definition of “good law” by making it less accessible to the citizen. 

The report concludes by suggesting the House should press the Minister to explain why this approach was taken and why it would not have been possible to deal with the issues in a series of themed instruments.

Commenting Lord Hodgson of Astley Abbotts, Chair of the Committee, said:

“We acknowledge that the Home Office has made considerable efforts to provide a comprehensive description of the changes being made to the Immigration Rules. However, given the length and complexity of the instrument at 507 pages and the accompanying Explanatory Memorandum at 50 pages long, it is still difficult to assess the policy aims of these changes and what their impact will be.

“The subject matter is not the point. The key issue is that analysing a piece of legislation of this size or complexity, even where it is simplifying matters, is challenging in that it renders effective Parliamentary scrutiny of such law a near impossibility. Without an expert knowledge of the subject, or the ability to compare old and new Rules side by side, it is impossible for us – and any other lay reader – to tell whether any important protections have been lost in the course of the simplification. 

“We would urge the House to press the Minister for an undertaking that this approach will not be repeated”

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