Committee for Justice - Report on the Legislative Consent Memorandum on the Border Security, Asylum and Immigration Bill
Ordered by the Committee for Justice to be published on 5 June 2025.
Report: NIA 100/22-27 Committee for Justice
Contents
- Powers and Membership
- Background
- Provisions which require legislative consent
- Committee Consideration
- Conclusion
- Links to Appendices
Powers and Membership
Powers
The Committee for Justice is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, Section 29 of the Northern Ireland Act 1998 and under Standing Order 48. The Committee has a scrutiny, policy development and consultation role with respect to the Department of Justice and has a role in the initiation of legislation.
The Committee has power to:
- consider and advise on Departmental budgets and annual plans in the context of the overall budget allocation;
- consider relevant subordinate legislation and take the Committee Stage of primary legislation;
- call for persons and papers;
- initiate inquiries and make reports; and
- consider and advise on matters brought to the Committee by the Minister of Justice
Membership
The Committee has nine members, including a Chairperson and Deputy Chairperson, and a quorum of five members. The membership of the Committee is as follows:
- Ms Joanne Bunting MLA (Chairperson)
- Miss Deirdre Hargey MLA (Deputy Chairperson)
- Mr Danny Baker MLA
- Mr Doug Beattie MLA
- Mr Maurice Bradley MLA
- Mr Stephen Dunne MLA
- Ms Connie Egan MLA
- Mrs Ciara Ferguson MLA
- Mr Justin McNulty MLA
Background
1. The Border Security, Asylum and Immigration Bill (“the Bill”), was introduced in the House of Commons on 30 January 2025. The Bill and Explanatory Notes can be found at Border Security, Asylum and Immigration Bill publications - Parliamentary Bills - UK Parliament.
2. The Explanatory Notes state that the purpose of the Bill:
“is to improve UK border security and strengthen the asylum and immigration system by creating a framework of new and enhanced powers and offences that, when taken together, reinforce, strengthen and connect capabilities across relevant government and law enforcement partners which make up the UK’s border, asylum and immigration systems.”
3. The Explanatory Notes explain that the measures in the Bill will:
- enable smarter, faster and more effective interventions to protect UK border security;
- make it easier to detect, disrupt and deter those seeking to engage in and benefit from Organised Immigration Crime (OIC), limiting the permissible environment and its impact; and
- improve understanding of how and why OIC happens.
4. The Bill contains a range of provisions that will extend to Northern Ireland. This includes excepted matters such as immigration, tax and national security, and reserved matters of crime, firearms and import and export control, for which consent is not required. However, it also includes provisions relating to devolved matters and consent will therefore be required to extend these provisions to Northern Ireland.
5. The Department of Justice (“the Department”) advised that the current legislative programme means that it would not be possible to bring forward equivalent legislation via an Assembly Bill before the next mandate at the earliest. Any delay in legislating would create loopholes, leaving Northern Ireland more vulnerable to serious and economic crime. The Department therefore considered that a Legislative Consent Motion (LCM) was the most timely, reasonable and proportionate way forward.
Provisions which require legislative consent
6. The provisions which deal with devolved matters and require legislative consent are set out below:
- Sharing of information – sharing of trailer data by the Driver and Vehicle Licensing Agency (DVLA) – the Government is creating an information-sharing power for the Home Office, the National Crime Agency, Police Forces and His Majesty’s Revenue and Customs to acquire trailer registration data from the DVLA.
- Offences relating to articles for use in serious crime – the creation of two new criminal offences of possessing any specified article where a person intends, or has reasonable grounds to suspect, that it will be used in connection with any serious offence; and of importation, manufacture, adaptation, supply or offering to supply a specified article where there are reasonable grounds to suspect that the article will be used in any serious offence.
- Breach of an Interim Serious Crime Prevention Order (ISCPO) in non-terrorism cases – it will be an offence to breach any ISCPO which has been issued throughout the UK.
- Validation of fees charged in relation to qualifications (in respect of the Department of Education’s UK European National Information Centre (ENIC)) – this will establish retrospective power for the charging of fees related to the comparability, recognition and assessment of qualifications obtained outside and within the UK.
7. The Department has advised that there may be additional measures that could potentially be extended to Northern Ireland by amendment. These relate to powers of search etc. in relation to electronic devices (for police constables) and to measures relating to Serious Crime Prevention Orders (SCPOs) and Interim Serious Crime Prevention Orders. The Department indicated that discussions were ongoing as to whether the power to search electronic devices was an excepted matter; legislative consent may therefore not be required in this regard.
8. With regard to SCPOs and ISCPOs, the Department advised that the Minister has indicated that she does not intend to extend these measures to Northern Ireland as part of this Bill, as the Department wants to carry out further engagement and scoping work and consult on any potential changes to the existing regime.
Committee Consideration
9. At its meeting on 1 May 2025, the Committee considered a written paper of 23 April 2025 from the Department advising of the Bill’s introduction and that legislative consent would be required for the three measures at points i. to iii. above which fall within the Department’s remit. The fourth measure relating to validation of fees fell within the remit of the Department for the Economy, and the Committee was informed that the Economy Minister was considering if that measure should be included in the Department of Justice’s LCM.
10. The Department’s paper also advised that the Legislative Consent Motion and Memorandum could not be laid within the time frame required by Standing Orders. Therefore, it was the Department’s intention to lay a Memorandum under Standing Order 42A(4)(b) in order to ensure that all Assembly Members were aware of the Bill. The paper further advised that the Motion and Memorandum seeking consent would be laid in due course, “subject to Executive agreement and the views of the Committee.”
11. The Committee agreed to request oral evidence to discuss the proposal for legislative consent, which was subsequently scheduled for 29 May 2025.
12. The Memorandum dated 13 May advising that consent was not being sought was laid by the Department on 14 May. The Memorandum stated that:
“It is the view of the Department that further time is needed to fully engage with partners, the Executive and the Justice Committee. Following this engagement, it is the intention of the Minister to bring forward a Legislative Consent Motion and Memorandum.”
13. However, the Legislative Consent Memorandum and Motion seeking consent was laid under Standing Order 42A(4)(a) the next day.
14. On 22 May 2025, the Committee noted that the Memorandum had been laid and agreed to ask the Committee for the Economy for its views on the provisions that fall within that Department’s remit. The Committee for the Economy responded on 28 May 2025 advising that, as there will be no material change to the provision of UK ENIC’s services, it was content with the request for legislative consent on that specific aspect of the Border Security, Asylum and Immigration Bill.
15. Departmental officials attended the meeting on 29 May 2025 to provide oral evidence on the Legislative Consent Memorandum and to answer Members’ questions. Officials explained that a Memorandum should have been laid under Standing Order 42A(4)(b) around the time the Committee received the initial written briefing on 23 April; however, an administrative error meant that the Memorandum was not laid until later than intended.
16. Officials acknowledged the Committee’s frustration with the time available to scrutinise the LCM. The Committee heard that, due to the subject matter covered by the Bill, the initial engagement from Westminster was with the First Minister and deputy First Minister (FM and dFM), not the Minister of Justice. Engagement with the Department at that stage was at official level only. However, as there are no measures relevant to the remit of FM and dFM which require consent, the Minister of Justice subsequently decided to take forward the matters within her Department’s responsibility.
17. Officials advised that the Bill has moved through its stages in Westminster at pace, which has made this legislative consent process particularly challenging. The Department did not want to risk not bringing forward a Legislative Consent Motion at this stage, as it was concerned that the Bill may complete its passage and gain Royal Assent before the summer recess period at Westminster.
18. The officials were questioned about whether they had sufficient time to consult with partners, as necessary, on the provisions for which legislative consent is being sought. They confirmed that the Department has been able to work through all points that have been raised and is content to move forward with the Legislative Consent Motion.
19. Officials confirmed that they had received initial comments from the Northern Ireland Human Rights Commission (NIHRC) and it was their understanding that the NIHRC intends to publish its full advice on the whole Bill in the coming weeks.
20. The officials were asked whether the views of the NIHRC on the compliance of clauses 30-33 with Article 2 of the Windsor Framework were similar to the UK Government’s human rights memorandum. Officials advised that, as recommended by the NIHRC, the Department had sought an expanded memorandum from the Home Office. The Home Office confirmed that it had conducted its own Article 2 analysis and was content that there are no issues or diminution of rights. The Department had shared that information with the NIHRC, which had nothing further to add at that time.
21. It was noted that the Department’s written paper of 22 May stated that “determining compatibility with Article 2 will also depend on an assessment of the forthcoming regulations to be made under Clause 32(8) and an understanding of how disclosures are to be conducted in practice, so it is difficult to be completely definitive in the absence of that information.” Members asked for clarification of whether the Department or the Assembly will have a role in considering those regulations. In response, the officials advised that the Secretary of State for Transport will have the power to make the regulations; and while there won’t be an opportunity for Assembly scrutiny, the Department of Justice will be consulted on the regulations.
22. The officials were also questioned on the implications of not obtaining legislative consent for the other measures relating to SCPOs and ISCPOs that may be extended to Northern Ireland by way of amendment (paragraph 8 above refers). Officials advised that, while there had been some previous policy work and engagement on SCPOs, the introduction of ISCPOs is new and the Department wants to take time to consider the existing regime here and to learn from how any changes work in England and Wales before bringing forward legislation locally. It would be expected that primary legislation would be required, which will be in the next Assembly mandate. Officials informed the Committee that they have engaged with law enforcement colleagues who have advised that the number of cases relating to these matters here are low and they do not envisage that there would be a significant gap if the provisions were not extended to Northern Ireland at this time.
23. The officials were questioned on the NIHRC’s observations about the reversal of the evidential burden of proof in relation to articles for use in serious crime. Officials advised that, when looking at the use of the reversal burden, the Department determined that the articles in question would rarely be used in everyday lawful business. They suggested, for example, that a pill press is not an item that a person would usually have and its primary purpose would be associated with criminal activity. A defendant would not be required to prove innocence, but instead provide plausible explanation as to why they had such articles and, if able to do so, the burden of proof would revert to the prosecution.
24. The Department, therefore, considered that the reversal of the burden of proof was proportionate in relation to these offences. The officials also pointed out that the reversal of the burden of proof is not a novel approach and it is also used in the Terrorism Act.
25. During the session, the Deputy Chairperson put on record her party’s concerns about what it considers to be the ‘draconian nature’ of other measures in the Bill which will extend to Northern Ireland but which are excepted or reserved, and that the Assembly will, therefore, not have an opportunity to scrutinise.
26. Having considered the evidence received and the response from the Committee for the Economy, Members indicated that they were content with the proposal to extend the provisions in the Border Security, Asylum and Immigration Bill to Northern Ireland by way of a Legislative Consent Motion.
Conclusion
27. Following consideration of the Legislative Consent Memorandum laid before the Assembly on 15 May 2025, the Committee for Justice agreed to support the Minister of Justice in seeking the Assembly’s endorsement of the Legislative Consent Motion:
“That this Assembly agrees to the extension to Northern Ireland of provisions upon introduction within the Border Security, Asylum and Immigration Bill dealing with sharing of information (contained in Part 1, Clauses 30 to 33); offences relating to articles for use in serious crime (contained in Part 3, Clauses 45-47); breach of an Interim Serious Crime Preventions Order in non-terrorist cases (contained in Part 3, Clause 49); and validation of fees charged in relation to qualifications (clause 53) (in respect of the Department of Education’s (England) UK ENIC services insofar as they relate to education).”
Links to Appendices
Appendix 1: Memoranda and Papers from the Department of Justice
View Memoranda and Papers supplied to the Committee by the Department of Justice
Appendix 2: Memoranda and Papers from Others
View Memoranda and Papers supplied to the Committee from other individuals or organisations
Appendix 3: Minutes of Proceedings
View Minutes of Proceedings of Committee meetings related to the report
Appendix 4: Minutes of Evidence
View Minutes of Evidence from evidence sessions related to the report
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This Report can be made available in a range of formats including large print, Braille etc. For more information please contact:
Committee for Justice
Kathy O’Hanlon (Clerk to the Committee)
Northern Ireland Assembly
Parliament Buildings
Ballymiscaw
Stormont
Belfast BT4 3XX
Telephone: 028 905 21033
Email: committee.justice@niassembly.gov.uk
X (Twitter): @NIAJusticeComm
