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What will happen to immigration policy and law following the 2017 General Election?

What will happen to immigration policy and law following the 2017 General Election?

It is the Queen’s Speech today. This sets out the legislative agenda for the coming Parliament in 2017 and 2018. But no party managed to win an overall majority in the General Election. We have what the political pundits and historians call a Hung Parliament in which there is a party which has more MPs than any other, but not enough MPs to outvote all of the other parties if they all voted together.

This is going to make it very difficult for the new Government to pass primary legislation, by which I mean new Acts of Parliament. But any Government needs to look like it is doing something and has a purpose. This is particularly so given there may well be another General Election soon; the Government needs to position itself as being worth re-electing rather than being impotent and pointless. So, we can expect proposed legislation for which the Government thinks it can put together a Parliamentary majority; the Government will certainly not want to be defeated in any important vote because it makes the Government look weak.

There will be no majority for some measures in the Conservative Manifesto, such as the creation of new grammar schools, because there are a lot of Conservative MPs who would vote against such a law, as would pretty much all other MPs.

However, there are plenty of measures in the manifesto for which primary legislation is not needed. Lots of immigration law consists of rules and regulations which do not require a Parliamentary vote at all. I would expect us to see lots of such measures being introduced and talked up as a substitute for full Acts of Parliament.

For example, the Conservatives pledged to:

  • Double the Immigration Skills Charge
  • Increase the Minimum Earnings Threshold for entry as a spouse
  • Triple the Immigration Health Surcharge
  • Tighten student visa rules yet further

All of these measures can be introduced with secondary legislation that does not automatically require a Parliamentary vote.

However, it is possible to trigger a vote against secondary legislation. Immigration Rule changes are brought about by means of the negative resolution procedure and other secondary legislation can potentially be challenged in a similar way. A vote on one of these pieces of secondary legislation would not bring down the Government and it is possible to imagine some Conservative MPs voting against some of these measures, which are essentially penal tariffs on foreigners.

That said, it has been suggested we will today see a new Immigration Act of some kind as well. It will be interesting to see the content of such legislation, because there is some possibility of liberal Conservatives combining with Labour and other parties to defeat anything excessively draconian or damaging to the economy.

Explainer: why will it be hard to pass primary legislation?

Primary legislation — an Act of Parliament — requires votes in the House of Commons and the House of Lords before it is passed as law. Where a governing party has a small majority in the Commons or there is a Hung Parliament, all it takes is for a small number of governing party MPs to vote against the law and, assuming the opposition parties all vote against, the Act will not pass.

To make matters worse for the Government, there is no Conservative majority in the House of Lords and the Lords may be willing to vote down some laws. There is a convention — the Salisbury Convention — which provides that that measures included in a winning party’s election manifesto will not be voted down in the Lords. Where no party won an overall majority it is far from clear that the Salisbury Convention still applies, which may embolden some in the Lords to vote against even measures that were in the Conservative Party manifesto.

The Conservatives won quite a few more seats (318) than Labour (262) but if all of the non Conservative parties voted against the Conservatives, for example on a vote of no confidence in the Government or on a budget measure, then the Conservatives would be defeated and the Government would fall.
Were that to happen, there would have to be another election. In theory another political party could try to form a Government instead of there being an election, but in practice the numbers do not add up for Jeremy Corbyn’s Labour Party because they only have 262 MPs and would have to ally with all the other parties, including the DUP, and even then could still be outvoted by the Conservatives.

To bolster their position and ensure that they do not lose a confidence motion and can pass a budget, Theresa May’s Conservatives are entering an agreement with the Democratic Unionist Party. This will not be a formal coalition where the DUP are appointed to Government positions and vote with the Conservatives all the time. Rather it will be a “confidence and supply” arrangement where the DUP ensure that critical votes on confidence and finance are passed. The DUP usually vote with the Conservative Party anyway and are strongly Eurosceptic so in some ways this is not a surprise.

What will surprise many is the rabidly reactionary nature of the DUP and the willingness of the Conservative Party to breach the terms of the Good Friday Agreement, which requires the UK Government to remain neutral between the Northern Ireland parties, not dependent on one of them.

Strong and stable?

Assuming that the Queen’s Speech passes, which seems highly likely despite noises off by the DUP, the new Government will be very vulnerable to defeat on any Parliamentary vote. The DUP will probably support the Government on any budget or confidence vote but may potentially vote against on other measures, and may simply not turn up on plenty of occasions.

This means that individual Conservative MPs hold a lot of power – if they choose to exercise it. If only a few rebel, they can combine with Labour and other parties to defeat the Government. However, Tory MPs of every persuasion very strongly dislike Jeremy Corbyn and do not want to see him as Prime Minister under any circumstances. This will make it hard for Labour to court liberal Conservatives. It may prove to be the head banging right of the Conservative Party who prove willing to vote with Labour on populist issues like Brexit.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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