8th March 2023
In times past, communities used to come together every year or so to assert and celebrate rebirth and virility.
Nowadays, our politicians do something similar – although instead of costumes and spectacles they pass legislation.
Consider these two lists.
First, here are the Acts of Parliament since 2000 which have migration/immigration/borders/nationality in their short title:
This list, of course, excludes statutory instruments and other legislation that may have amended the law on migration and related aspects.
But it is about an Act every other year.
And here is a second list, of primary legislation since 2000 with terrorism or “investigatory powers” in the title:
Again, an Act of Parliament on average every couple of years or so.
Amusingly, our legislature cannot make its mind up whether the statutes should be title “terrorism” or “anti-“ or “counter-terrorism”.
(Perhaps one reason we have so many is because they keep cancelling each other out.)
Taking the two lists together, this means that the Home Office has had since 2000 about an Act every year on immigration or national security, or both.
An annual (biennial) legislative event which shows the Home Office is doing something.
We are told this year, like before, that the migration-related Bill is needed to solve the perceived borders issue.
We are told that those against this latest Bill are against the national interest:
One suspects similar sentiments could have been expressed (and indeed were) about those who may have had reservations about each of the previous Bills on borders and/or national security since 2000.
And like an addict, the Home Office will say in 2024 and 2025 that just some more Bills will be needed to show how serious we are about borders and/or national security.
Perhaps one day the Home Office will think it has enough legislation in place on borders and/or national security.
But until that happy day, Home Office ministers will pass a new Act every year or so to show that they are virile and that they are doing things.
Then they will hope we will forget the alarmism so that they can do it all over again in the next year or two.
The legislation will accumulate on the statute book, with different variations of the same few words in the titles.
Until perhaps they are all one day consolidated in a Terrorism, Anti-Terrorism, Counter-Terrorism, Borders, Migration, Immigration and Nationality Act.
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Irrespective of borders or immigration, we simply have too much legislation. It is often badly drafted. Parliament has knee-jerk reactions to events, with little-needed legislation often following.
Judges in the Court of appeal have described aspects of immigration law as
“an impenetrable jungle of intertwined statutory provisions and judicial decisions”
and as having
“…achieved a degree of complexity which even the Byzantine Emperors would have envied”.
Thank you for this blog… I had no idea of the frequency you highlighted – *wow*
I was born in 1972, a few months after Bloody Sunday. All through my youth and into my 20s, the potential for bombing attacks was a very real thing (Guildford, Birmingham, Brighton, Downing Street, Bishopsgate, Docklands, Manchester, Omagh).
Parliament passed the Prevention of Terrorism (Temporary Provisions) Act 1974, which continued as a temporary measure, renewed and renewed, and rewritten three times, in 1976, 1984 and again in 1989. The 1989 Act survived past the Belfast Agreement in 1998 until terrorism legislation was put on a permanent basis in 2000. Four or five main Acts of Parliament over 26 years.
Yet for some reason this “permanent” position has been amended time and again since 2000.
No doubt part of it is a response to the emergence of Islamic terrorism after 9/11, but like a “war on drugs”, there is little hope of winning a “war on terror”. And particularly not with legislation, however “clear” the signals, however tough the crackdown. Legislation is just words on a page; a statement of intent.
As you suggest, the Home Office and successive Home Secretaries appear to have become addicted to some sort of “annual legislative event”, just as the Treasury and the Chancellor of the Exchequer crave an annual (or even twice or thrice yearly) “fiscal event”. In part that explains why the UK tax code is so long, and so poorly put together – with bits enacted and modified and repealed like some demented Lego model.
Similarly, immigration law has become a dogs breakfast of acts and regulations and rules and policies, without much discernable overall aim or structure.
Perhaps time is ripe for a consolidation and simplification, like the tax law rewrite project attempted. But first we need to decide what we are trying to achieve.
There was a time, early in my civil service career, when Parliamentary Counsel would stop this nonsense, using the argument that he (which it always was) didn’t have the time and resources to waste on unnecessary legislation. It would be interesting to know why this has changed, particularly after so much cutting of civil service resources.
Or perhaps ministers aren’t as terrified of Parliamentary Counsel as they used to be.
Whether (and what) to legislate is a political decision. If the Parliament Counsel feels overburdened she can ask the government which of their drafting projects she is to prioritise for the allocation of her limited resources; she can’t just refuse to draft.
If only life in government were that easy!
There’s little wonder that Priti Patel confused terrorism with counter-terrorism in this car crash interview.
https://www.dailymail.co.uk/video/conservatives/video-2102890/Video-Priti-Patel-confuses-terrorism-counter-terroism.html
This government seems to think passing laws against things is the answer to everything and that having rehashed the previous Act(s) the electorate will be satisfied that “something has been done” by this churning of legislation.
This morning Suella Braverman was interviewed. Not merely doubling down on her claims of 100 million refugees being on there way to the UK, she went up an order of magnitude on the numbers to billions. A significant proportion of the world’s population. Ludicrous scare mongering. The steady stream of boats crossing the channel would have to become a continuous carpet of inflatables to sustain such numbers.
I seem to recall an earlier post on your excellent blog where you stated words to the effect of “legislation is not magical”, which I thought was very well put.
Wishing the boats to stop does not equate to stopping them. Making it illegal for the boats to come will not stop them either.
The answer seems evident to me – establish a UK asylum processing facility in France. I understand the French are quite happy for this to happen. Yet the government has not even addressed this possibility. Perhaps they are fearful of the number of claims that would then be accepted.
Spot on. Too simple or just too humane?
Anyone risking a trip across the channel would be a fool.
This really is a very significative post, highlighting the futility of the Tory government on matters of immigration, borders, security et al. It is a serious matter that our legislative process is being misused by a wholly incompetent government which is not capable of effective government! Tautology, yes, but not what we have a right to expect.
On a point of information, the first 10 years of this merry-go-round of two-tone Home Office legislative since 2000 was under a Labour government.
Perhaps the escalation in frequency dates back to the time of John Major: after the 1992 general election, there was an Asylum and Immigration Appeals Act 1993, an Asylum and Immigration Act 1996, and a Prevention of Terrorism (Additional Powers) Act 1996. (This stuff seems to have been less frequent under Thatcher: I wonder what changed in the 1990s.)
After the 1997 general election up to 2000, there was also a Special Immigration Appeals Commission Act 1997, a Criminal Justice (Terrorism and Conspiracy) Act 1998, and an Immigration and Asylum Act 1999.
But the Conservatives have kept that legislative prayer wheel merrily spinning around for another 13 years from 2010.
Quite!
At least up until 2019 the Acts were designed to have a policy effect (however unlikely or poorly designed). Post-2019 they seem only designed to energise the base/annoy the right people/own the libs. Actually passing the legislation seems secondary, and any level of implementation is only there to generate the court cases to create more headlines.
Perhaps the Home Office will be content with an illegal Migrant Act. (Do lawyers treat capitalisation with the same disdain that they treat commas?)
These statutes are like advertising. Promote a face cream, wine, cleaning product, food but then soon after promote an even newer, better, shinier, healthier, tastier version. And one thinks, well what was wrong with the glossy item you persuaded me to buy last time?
There is the matter of precedent.
Is it the purpose of such frequent tinkering to limit any accumulation of case law and precedent, or, is that just an unintended consequence?
Anyone can scribble on parchment, making it mean something you can implement is another thing entirely. Playing alphabetti spaghetti with legal phrases will get you nowhere. Canute and all that.
But Canute was not trying to convey a false impression, Ms Braverman et al are playing falsehoods. So the only ‘useful’ effect is that a few lawyers will get to afford a villa in Tuscany. The boats will continue to arrive, the hotels and guesthouses will make out like bandits. Still, only another 19 months and all this will be someone else’s problem.
Let us undertake a hypothetical exercise in which a governing party wanted to raise a particular issue repeatedly without investing in structural reform.
An annual bill to address “illegal immigration” might well be one of the outcomes.
The numbers of economic immigrants since the 1990s has been a contributing factor to the Brexit vote. (It was Farage’s dog whistle, as even serious-minded considered supporters of Brexit would have to admit).
And outside the ethnic communities themselves, few people distinguished between Indian sub-Continent and Eastern European immigration.
A serious attempt to crack down on the pull factors attracting economic migrants (including the dinghy guys) would look to tighten up the economy. Because the real attraction is not to claim asylum, but to disappear into the unregulated cash based grey economy.
Countering this would require:
ID cards
Tighter controls on employers
and potentially reforming the NHS, benefits and pension system towards a contributory (Bismarckian) basis.
This would cost money, affect Tory voting small employers and draw the net widely enough to discourage the economic migrants the country needs.
It would also open up discussions about our underfunded state pension system, and undermine efforts to shrink welfare. (It would be very difficult for the Tories to take on – and the obvious solutions – involving 3rd party pension funds, would raise awkward questions about the poor performance of pensions since the Tories introduced free market reforms.)
A formal ID card system is also opposed for various reasons. Cummings’ vociferous opposition to it undermines opponents’ credibility somewhat.
So – we have this nonsense that will do nothing to discourage the rise in non-EU immigration that is upsetting the government’s supporters and fuelling the rise of the “Farange”.
Whilst the government is busy negotiating an FTA with India which is intended to increase the numbers of skilled Indian grads coming to the UK.
Given the political complexities, you can see why it suits all concerned to focus on the Small Boats. (A good immigrant/bad immigrant narrative is emerging).
As a bonus, it may well allow the government to offer up ECHR membership as the cause for our problems. And there is a hope it will trigger sufficient outrage among Labour’s Amnesty International supporting wing to split the Red Wall.
In short – a poor policy, put forward for transparently partisan reasons, which may well further weaken our international legal commitments without actually addressing the problems affecting the economy.