Clause 6.—(APPLICATION OF PART II.)

HC Deb 07 February 1962 vol 653 cc462-516

5.0 p.m.

Mr. A. J. Irvine

I beg to move, in page 5, line 26, to leave out "whose father" and to insert "one of whose parents".

The provisions of Part II of the Bill, which deals with deportation, have so far been treated as being less controversial than the rest. None the less they need watching, and this Amendment is designed to make a small but not unimportant increase in the number of exemptions from the effects of Part II. Although, as I say, the provisions with which we are now concerned have given rise to less controversy than the rest, it would be very undesirable if, as a result of this Measure being passed, there were wholesale recommendations for deportations by magistrates; and it is widely felt that there is a risk of that happening.

The Amendment aims at extending only very slightly the numbers of Commonwealth citizens who will be exempt from Part II. If it were accepted, there would be no power for a court to recommend for deportation a Commonwealth citizen whose father or mother was horn in the United Kingdom. The proposition that one cannot deport X because his father was born in the United Kingdom but can deport Y although his mother was born in the United Kingdom is not easy to defend. I do not see any logic in it, and it seems to reveal a kind of anti-feminist disposition which the Minister of State will find somewhat difficult to defend. It might even be regarded as being out of character.

I suppose that the reasoning behind the exemptions in paragraphs (a), (b) and (c) of subsection (2) is that it is felt that when a man is convicted of an offence, and has certain close connections with the United Kingdom, to deport him might involve disproportionate hardship, and might, in certain cases, put an obstacle in the way of his rehabilitation and of the best treatment of him as a prisoner.

There is a good deal of sense in that reasoning. If one has a conviction, but has close connections and family ties in the United Kingdom, to be made subject to a deportation order might obviously have the most undesirable anti-social consequences but, if that is the reasoning, I believe that the Minister would be very hard put to it to persuade the Committee that having a father born in the United Kingdom brings a relevant factor into play but that having a mother born in the United Kingdom does not. With those considerations in mind, I recommend the Amendment to the Committee.

Mr. John Diamond (Gloucester)

I ask the Government, when replying to the Amendment so forcefully moved by my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine), to explain, at the same time, why more importance is attached to ordinary residence than to birth.

In the very next line of paragraph (a) there are the words: …or whose parents (or either of them) were ordinarily resident… I have always regarded "British born" as two proud words, and have always thought that one can normally rely on a British-born person to carry out the British way of life and to be loyal to his or her country.

Under the Bill as it stands, if the father was ordinarily resident, that is an exception, and if the mother was ordinarily resident, that is an exception. How does it arise that for a mother to be ordinarily resident is an exception, but for a mother to be British born is no exception at all and does not have the same validity?

The Minister of State, Home Office (Mr. David Renton)

As the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) pointed out, the deportation provisions of the Bill are less controversial than the earlier ones, but it is, nevertheless, right that we should make sure that those deportation provisions, the essence of which are, I think, the exemptions which they contain, are as they should be. The Clause, of course, must be considered in conjunction with Clause 7 (2), which provides for exemptions from deportation after five years' residence in this country.

The purpose of Clause 6 is to define the people who may be regarded as belonging to the United Kingdom, and who are, therefore, not to be put in peril of deportation even though they commit criminal offences. The Amendment would exempt a person from liability to deportation if either of the parents were born in the United Kingdom, whereas, as drafted, the Bill exempts those whose father was born here but not those whose mother was born here. I am invited to defend that proposition.

We have done this because the United Kingdom is in a special position, in that many people born in the Commonwealth have fathers born in the United Kingdom. Those people born in the Commonwealth of fathers born in the United Kingdom very frequently remain closely connected with the United Kingdom, and regard it as home. There is, therefore, no question but that we should exempt them from deportation. I might say that in exempting them we have followed the analogy of the law of citizenship, under which a person born abroad of a father born in the United Kingdom inherits the father's citizenship, while a person whose mother was born here does not inherit the mother's citizenship.

Perhaps I may be allowed to give an example. If an Englishman takes a post in Canada and his son is born there and returns to the United Kingdom, he is likely to have retained such a close connection with the United Kingdom as to regard it as his family's home. But this is surely not so likely to happen in the case of an English woman who goes to Canada and marries a Canadian. Their son, born in Canada, is more likely to regard Canada as his home and if he comes here he will not, naturally and obviously——

Mr. G. M. Thomson

Why?

Mr. Renton

I am just explaining what we believe to be the most general experience.

It is a matter of experience and common sense. If the son is born in Canada to an English woman who has gone there to marry a Canadian, he is more likely to regard that as his home and if he comes here we do not think that he will naturally fall into the category of those who belong to the United Kingdom.

The hon. Gentleman the Member for Gloucester (Mr. Diamond) pointed out that under the Clause we have exempted a person either of whose parents were ordinarily resident in the United Kingdom at the time of his birth, even though he was not born in the United Kingdom. This exemption is on a different footing from the one we are discussing now, because if either of the parents was ordinarily resident in the United Kingdom at the time of his birth then, whether he was born in the Commonwealth or in a foreign country, he can properly be regarded as belonging to the United Kingdom. It means, in effect, that he was born abroad when his mother—a United Kingdom resident—was temporarily abroad. We feel that it is right, in such a case, that he should have the benefit of this exemption.

In general, we feel that it is right, in the Clause, to follow our nationality law and be consistent with it by granting exemption to those whose fathers were born here and to acknowledge the principle that children of those ordinarily resident here should also be exempted. For reasons I have given, however, we feel that if only the mother was born here and was not ordinarily resident here at the time of the birth of the person concerned, then no entitlement to exemption should arise.

If those who may still, in spite of that explanation, feel uneasy about this point I would mention two facts. First, as I mentioned earlier, under Clause 7 (2)—when we come to discuss that—anyone who has been ordinarily resident here for five years will, in any case, get exemption under that provision. Secondly, no court is bound to recommend deportation—even though the person would qualify for it—and even if the court recommends deportation it is still within the discretion of the Home Secretary as to whether or not a deportation order should be made.

Thus, if in any case of a person whose mother was born here there would seem to be great hardship involved in carrying out the deportation order, the Home Secretary is at liberty to decide that it shall not be carried out.

Mr. Diamond

rose——

Mr. Renton

The Bill as drafted is right in principle and is consistent with our nationality law. In practice, no hardship is likely to arise, for the reasons I have given.

Mr. Diamond

I wish to question the hon. and learned Gentleman about the earlier part of his speech—not the latter part where he gave reasons for accepting the Amendment—in which he attempted to reject the Amendment. The hon. and learned Gentleman advanced the proposition that this was a rather general matter of experience, that one would have loyalty towards one's country despite the fact that one's father had moved to another country but that the same argument could not apply in the case of one's mother.

Even assuming that the hon. and learned Gentleman has any evidence for that—and I deny that he has—and even assuming that in two-thirds of the cases that might be so, is the hon. and learned Gentleman seriously arguing that we should put, as part of our permanent statutory law, that the other one-third of the cases should suffer injustice because it is a patriarchy and not a matriarchy that we are subscribing to?

Mr. Renton

Nothing I have said was intended to be in support of the Amendment. The provision in the Clause is based, as I mentioned, and as are many of our other laws, on the husband being the head of the family. That is why the children normally follow the husband's nationality. It is on that basis—and a basis which I think is accepted in most countries of the Commonwealth—that we have framed this provision.

Mr. G. M. Thomson

The Minister has completely failed to give the Committee an adequate explanation for rejecting the Amendment. All he has done is to argue a precedent in relation to the nationality laws. It is well known that those laws discriminate unfairly as between husband and wife. Because they do—and because of this legal fiction that the husband is the head of the family—that does not seem to be any justification for arguing, in the circumstances of a Bill in which we are making a breach with Commonwealth tradition, that the person whose mother was born in Britain and whose father was not should be discriminated against.

I should have thought that evidence could have been brought to suggest that someone whose mother was born in Britain—and I am using the fictitious person adduced by the Minister whose father had gone to Canada—could be regarded just as enthusiastically as a citizen of this country—as much as if the case were the other way round and the father had been born in the United Kingdom.

5.15 p.m.

It is often through the mother that the greatest emotion is attached to the country of origin. As I say, this provision is discriminatory. It is unjust as between husband and wife and the Minister has done nothing more than adduce some legal precedents to qualify what he has said. Apart from that, his whole philosophy has been based on the philosophy of St. Paul.

Mr. B. T. Parkin (Paddington, North)

While congratulating the Minister on his ingenious speculations on what might be the primary loyalties of ladies living in Canada, I also congratulate him on being perfectly frank in giving us the real motive for the Government's resistance to the Amendment—the fact that they still support that utterly outdated principle of the nationality law which lays down that a woman cannot give hey nationality to her child.

It is extremely interesting to note that the party opposite—which resisted feminine emancipation over the years on the ground that women were second-rate citizens—should, by the Bill, set up the principle of second-rate citizenship. It represents their outrageous and outdated attitude of renewing something which should have been taken off the Statute Book long ago, and I hope that my hon. Friends will press the Amendment to a Division.

Mr. W. Griffiths (Manchester, Exchange)

In resisting the Amendment the Minister made an astonishing statement, not about the nationality laws but about what he called their "general experience". Presumably the Home Office—by its common sense or otherwise—was persuaded that a woman born in this country and married to a man who was not a United Kingdom citizen was less likely to retain her ties with this country than had the case been reversed.

The Minister did not advance a scrap of evidence to support that astonishing and rather insulting assumption. I suspect that the hon. Gentleman made that statement after working on the grossly offensive assumption that women who marry men from outside these shores do not retain very close ties with their relatives and friends in this country. In its treatment of Commonwealth citizens in the past, the Home Office has worked not in a commonsense way but in a nonsensical fashion.

I recall approaching the Home Office once about whether it would agree to admitting a man who was born in Gibraltar and who had married a Spanish girl. The answer I got was, "Yes, they can live in the United Kingdom." But the Home Office did not consider that the same treatment would apply had the circumstances been reversed. A girl born in Gibraltar, and marrying a Spaniard, would be refused admission. The Minister of State's speech does not seem to me to be remotely connected with common sense. It is as nonsensical as the way the Government have treated people who have sought to come here in the past in circumstances which I have related earlier in the debate.

Mr. Edwin Wainwright (Dearne Valley)

I wish to say a few words in support of the Amendment. This is a very harsh Bill which discriminates against certain people belonging to the United Kingdom. The Government ought to ease as much as possible the effect of the Bill on such people.

I am surprised that the Minister of State has not accepted the suggestion made by my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) on this issue. Why should a woman not be considered equal in the marriage partnership? Why should offspring be discriminated against because one parent happened to be born in this country and the other born somewhere else in the Commonwealth? Reference has been made to Canada, but I am not satisfied that that is the problem country. I think it is the African countries, the coloured countries, which are behind the objection to this Amendment. Had only the white races been involved, I do not think we should have had objections from the Government on such an issue.

If an English woman marries someone from the Continent of Europe and they go to live in one of our Commonwealth countries where they both die, the child of the marriage may well wish to come to this country where the mother was born, and yet will be refused admission to this country. It is all very well the Minister saying that the Government will have the right to allow such persons to come here, but I feel certain that that right will not always be exercised and that the Government will not always allow such people to stay in this country.

The Minister did not say anything about the natural parents. I should like to know whether a person who is born in another country of a natural parent of this country, will be allowed to come here.

The Government ought to take another look at this Clause. If they cannot accept the Amendment, they ought at least to take it into consideration and to rewrite the subsection to conform with what has been said by my hon. and learned Friend.

Mr. Ede

The Minister of State quoted the British Nationality Act. I would remind him that there is a great difference between that Act and this Bill. That Act was the result of prolonged negotiations with every one of the countries which obtained the right of separate citizenship under it. This Bill, so far as we know, has not such a basis and we have had to accept some things that we did not like very much.

I am astounded that the Minister of State should advance the proposition which he has. It reminds me of the somewhat amusing incident in another place when Lord Woolton once said in the course of a debate that maternity was certain but paternity was often doubtful. My noble Friend, who was alive in those days, the first, and I sincerely hope the last, Viscount Stansgate, said that it was an astounding doctrine to announce in an hereditary House.

This is not an hereditary House, but we are entitled to take account of the ordinary customs of the people, and surely it is the recollection of everybody in the House who served in the British Army in either of the great wars that the person given as the next of kin in every case where the mother survives is the mother. I do not believe that women born in this country who marry members of the Dominions or members of other countries in the Commonwealth which have recently attained nationhood are less likely to leave a love of this country in the minds of their offspring than the fathers are.

Mr. Renton

Naturally one is interested, as one always is, in the speech of the right hon. Member for South Shields (Mr. Ede), who introduced the British Nationality Act, 1948. So far as I recollect, when we introduced the British Nationality Act, 1958, which made certain amendments and extensions to the 1948 Act and filled in one or two gaps in it, there was no suggestion that we should alter Section 5 of the 1948 Act which reads: Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth. We have also had prolonged consultations on this Bill, and, although we have received numerous representations about various parts of it, we have not received any suggestions that this Clause should be any different from what it is.

The right hon. Member for South Shields made an entertaining allusion to the certainty of maternity and the uncertainty of paternity. I do not know what inference we are to draw from that. His statement is a defence of the ancient custom of Borough English which was contrary to the law of primogeniture. It was also, I think, a justification for the view that, if anything, it is only descent from the mother that should be acknowledged in the Bill.

We have preferred to follow the provision put forward by the right hon. Gentleman in 1948 and carried by the House, to the effect that citizenship status should follow the father, and we feel that in the context of this provision that is the right thing to do.

There is no Amendment before us to amend the British Natonality Act. Indeed, I think that would be a most highly controversial thing to do. We have stuck to the right hon. Gentleman's Statute and, in those circumstances, I feel that this provision is as it should be.

May I conclude by reminding the Committee that although this undoubtedly seems to be the right provision from the legal and constitutional point of view, there is this safeguard against any hardship, that a person who has been ordinarily resident here for five years will in any event get exemption under Clause 7, and both the courts and the Home Secretary have a discretion

to exercise in these matters which they will exercise, bearing in mind all the circumstances, including such circumstances as may arise from the fact that the mother of the accused was born in the United Kingdom.

Question put, That "whose father" stand part of the Clause:—

The Committee divided: Ayes 272, Noes 192.

Division No. 70.]	AYES	[5.30 p.m.
Agnew, Sir Peter	d'Avigdor-Goldsmid, Sir Henry	Joseph, Sir Keith
Aitken, W. T.	de Ferranti, Basil	Kaberry, Sir Donald
Allan, Robert (Paddington, S.)	Digby, Simon Wingfield	Kerans, Cdr. J. S.
Allason, James	Donaldson, Cmdr. C. E. M.	Kerby, Capt. Henry
Amery, Rt. Hon. Julian	Doughty, Charles	Kerr, Sir Hamilton
Arbuthnot, John	Drayson, G. B.	Kershaw, Anthony
Ashton, Sir Hubert	du Cann, Edward	Kirk, Peter
Atkins, Humphrey	Duncan, Sir James	Lancaster, Col. C. G.
Barber, Anthony	Eden, John	Langford-Holt, Sir John
Barlow, Sir John	Elliot, Capt. Walter (Carshalton)	Leather, E. H. C.
Barter, John	Elliott, R.W.(Nwcastle-upon-Tyne, N.)	Leavey, J. A.
Batsford, Brian	Emmet, Hon. Mrs. Evelyn	Leburn, Gilmour
Baxter, Sir Beverley (Southgate)	Errington, Sir Eric	Legge-Bourke, Sir Harry
Beamish, Col, Sir Tufton	Erroll, Rt. Hon. F. J.	Lewis, Kenneth (Rutland)
Bell, Ronald	Farr, John	Lindsay, Sir Martin
Bennett, F. M. (Torquay)	Finlay, Graeme	Linstead, Sir Hugh
Berkeley, Humphry	Fisher, Nigel	Litchfield, Capt. John
Bevins, Rt. Hon. Reginald	Fletcher-Cooke, Charles	Longden, Gilbert
Biffen, John	Fraser, Hn. Hugh (Stafford & Stone)	Loveys, Walter H.
Biggs-Davison, John	Fraser, Ian (Plymouth, Sutton)	Lucas, Sir Jocelyn
Bingham, R. M.	Freeth, Denzil	Lucas-Tooth, Sir Hugh
Birch, Rt. Hon. Nigel	Galbraith, Hon. T. G. D.	McAdden, Stephen
Bishop, F. P.	Gammans, Lady	MacArthur, Ian
Black, Sir Cyril	Gardner, Edward	McLaughlin, Mrs. Patricia
Bossom, Clive	Gibson-Watt, David	Maclay, Rt. Hon. John
Bourne-Arton, A.	Gilmour, Sir John	Maclean, Sir Fitzroy (Bute & N. Ayrs.)
Box, Donald	Godber, J. B.	Macleod, Rt. Hn. Iain (Enfield, W.)
Boyd-Carpenter, Rt. Hon. J.	Goodhart, Philip	Macleod, John (Ross & Cromarty)
Boyle, Sir Edward	Goodhew, Victor	McMatter, Stanley R.
Braine, Bernard	Grant, Rt. Hon. William	Macmillan, Rt.Hn.Harold (Bromley)
Brewis, John	Grant-Ferris, Wg. Cdr. R.	Macpherson, Niall (Dumfries)
Bromley-Davenport, Lt.- Col. Sir Walter	Green, Alan	Maddan, Martin
Brooman-White, R.	Gresham Cooke, R.	Maginnis, John E.
Brown, Alan (Tottenham)	Gurden, Harold	Maitland, Sir John
Browne, Percy (Torrington)	Hall, John (Wycombe)	Manningham-Buller, Rt. Hn. Sir R.
Bryan, Paul	Hamilton, Michael (Wellingborough)	Markham, Major Sir Frank
Buck, Antony	Harris, Frederic (Croydon, N.W.)	Marshall, Douglas
Bullard, Denys	Harrison, Brian (Maldon)	Marten, Neil
Bullus, Wing Commander Eric	Harrison, Col. Sir Harwood (Eye)	Mathew, Robert (Honiton)
Burden, F. A.	Harvey, John (Walthamstow, E.)	Matthews, Gordon (Meriden)
Butler, Rt.Hn.R.A.(Saffron Walden)	Hastings, Stephen	Maudling, Rt. Hon. Reginald
Campbell, Sir David (Belfast, S.)	Hay, John	Mawby, Ray
Campbell, Gordon (Moray A Nairn)	Heald, Rt. Hon. Sir Lionel	Maxwell-Hyslop, R. J.
Carr, Compton (Barons Court)	Hendry, Forbes	Maydon, Lt.-Cmdr. S. L. C.
Carr, Robert (Mitcham)	Hicks Beach, Maj. W.	Mills, Stratton
Cary, Sir Robert	Hiley, Joseph	Montgomery, Fergus
Channon, H. P. G.	Hill, Dr. Rt. Hon. Charles (Luton)	More, Jasper (Ludlow)
Chataway, Christopher	Hill, Mrs. Eveline (Wythenshawe)	Morrison, John
Chichester-Clark, R.	Hirst, Geoffrey	Mott-Radclyffe, Sir Charles
Clark, Henry (Antrim, N.)	Hobson, John	Nabarro, Gerald
Clark, William (Nottingham, S.)	Hocking, Philip N.	Neave, Airey
Clarke, Brig. Terence (Portsmth, W.)	Holland, Philip	Nicholson, Sir Godfrey
Cleaver, Leonard	Hollingworth, John	Oakshott, Sir Hendrie
Cole, Norman	Hornby, R. P.	Orr-Ewing, C. Ian
Collard, Richard	Howard, John (Southampton, Test)	Osborn, John (Hallam)
Cooke, Robert	Hughes Hallett, Vice-Admiral John	Osborne, Sir Cyril (Louth)
Cooper, A. E.	Hughes-Young, Michael	Page, Graham (Crosby)
Cordeaux, Lt-Col. J. K.	Hutchison, Michael Clark	Page, John (Harrow, West)
Corfield, F. V.	Iremonger, T. L.	Pannell, Norman (Kirkdale)
Costain, A. P.	Irvine, Bryant Godman (Rye)	Partridge, E.
Coulson, Michael	James, David	Pearson, Frank (Clitheroe)
Craddock, Sir Beresford	Jenkins, Robert (Dulwich)	Pee[...], John
Critchley, Julian	Johnson, Dr. Donald (Carlisle)	Peyton, John
Crosthwaite-Eyre, Col. Sir Oliver	Johnson, Eric (Blackley)	Pickthorn, Sir Kenneth
Crowder, F. P.	Johnson Smith, Geoffrey	Pike, Miss Mervyn
Dance, James	Jones, Rt. Hn. Aubrey (Hall Green)	Pitman, Sir James
Pitt, Miss Edith	Simon, Rt. Hon. Sir Jocelyn	Vickers, Miss Joan
Pott, Percivall	Sheet, T. H. H.	Wakefield, Edward (Derbyshire, W.)
Price, David (Eastleigh)	Smith, Dudley (Br'ntf'd & Chiswick)	Wakefield, Sir Wavell (St. M'lebone)
Prior, J. M. L.	Spearman, Sir Alexander	Walder, David
Prior-Palmer, Brig. Sir Otho	Speir, Rupert	Walker, Peter
Proudfoot, Wilfred	Stanley, Hon. Richard	Walker-Smith, Rt. Hon. Sir Derek
Pym, Francis	Stevens, Geoffrey	Wall, Patrick
Quennell, Miss J. M.	Stodart, J, A.	Ward, Dame Irene
Ramsden, James	Stoddart-Scott, Col. Sir Malcolm	Watkinson, Rt. Hon. Harold
Rawlinson, Peter	Studholme, Sir Henry	Webster, David
Redmayne, Rt. Hon. Martin	Summers, Sir Spencer (Aylesbury)	Wells, John (Maidstone)
Rees, Hugh	Tapsell, Peter	Whitelaw, William
Rees-Davies, W. R,	Taylor, Sir Charles (Eastbourne)	Williams, Dudley (Exeter)
Renton, David	Taylor, W. J. (Bradford, N.)	Wills, Sir Gerald (Bridgwater)
Ridley, Hon. Nicholas	Teeling, Sir William	Wilson, Geoffrey (Truro)
Ridsdale, Julian	Temple, John M.	Wise, A. R.
Robinson, Rt Hn Sir R. (B'pool, S.)	Thomas, Leslie (Canterbury)	Wolrige-Gordon, Patrick
Robson Brown, Sir William	Thompson, Kenneth (Walton)	Wood, Rt. Hon. Richard
Ropnor, Col. Sir Leonard	Thornton-Kemsley, Sir Colin	Woodnutt, Mark
Royle, Anthony (Richmond, Surrey)	Tilney, John (Wavertree)	Woollam, John
Russell, Ronald	Touche, Rt. Hon. Sir Gordon	Worsley, Marcus
Scott-Hopkins, James	Turner, Colin	Yates, William (The Wrekin)
Seymour, Leslie	Turton, Rt. Hon. R. H.
Sharples, Richard	Tweedsmuir, Lady	TELLERS FOR THE AYES:
Shaw, M.	van Straubenzee, W. R.	Mr. J. E. B. Hill and
Shepherd, William	Vaughan-Morgan, Rt. Hon. Sir John	Mr. McLaren.
NOES
Abse, Leo	Griffiths, Rt. Hon. James (Llanelly)	Millan, Bruce
Ainsley, William	Griffiths, W. (Exchange)	Milne, Edward
Albu, Austen	Grimond, Rt. Hon. J.	Mitchison, G. R.
Allaun, Frank (Salford, E.)	Gunter, Ray	Monslow, Walter
Allen, Scholefield (Crewe)	Hale, Leslie (Oldham, W.)	Moody, A. S.
Awbery, Stan	Hall, Rt. Hn. Glenvil (Colne Valley)	Morris, John
Baxter, William (Stirlingshire, W.)	Hamilton, William (West Fife)	Mort, D. L.
Beaney, Alan	Hannan, William	Moyle, Arthur
Bence, Cyril	Hart, Mrs. Judith	Neal, Harold
Bennett, J. (Glasgow, Bridgeton)	Hayman, F. H.	Noel-Baker, Francis (Swindon)
Benson, Sir George	Healey, Denis	Noel-Baker, Rt. Hn. Philip (Derby S.)
Blackburn, F.	Herbison, Miss Margaret	Oliver, G. H.
Blyton, William	Hill, J. (Midlothian)	Oram, A. E.
Boardman, H.	Hilton, A. V.	Oswald, Thomas
Bowden, Rt. Hn. H. W. (Leics. S.W.)	Holman, Percy	Owen, Will
Bowen, Roderic (Cardigan)	Holt, Arthur	Padley, W. E.
Bowles, Frank	Hoy, James H.	Paget, R. T.
Boyden, James	Hughes, Emrys (S. Ayrshire)	Parker, John
Braddock, Mrs. E. M.	Hughes, Hector (Aberdeen, N.)	Parkin, B. T.
Brockway, A. Fenner	Hunter, A. E.	Pavitt, Laurence
Brown, Rt. Hon. George (Belper)	Hynd, H. (Accrington)	Pearson, Arthur (Pontypridd)
Butler, Herbert (Hackney, C.)	Hynd, John (Attercliffe)	Peart, Frederick
Callaghan, James	Irvine, A. J. (Edge Hill)	Pentland, Norman
Castle, Mrs. Barbara	Irving, Sydney (Dartford)	Plummer, Sir Leslie
Chapman, Donald	Jay, Rt. Hon. Douglas	Popplewell, Ernest
Craddock, George (Bradford, S.)	Jeger, George	Prentice, R. E.
Cronin, John	Jenkins, Roy (Stechford)	Price, J. T. (Westhoughton)
Crosland, Anthony	Johnson, Carol (Lewisham, S.)	Probert, Arthur
Darling, George	Jones, Rt. Hn. A. Creech (Wakefield)	Proctor, W. T.
Davies, Rt. Hn. Clement (Montgomery)	Jones, Dan (Burnley)	Randall, Harry
Davies, Harold (Leek)	Jones, Elwyn (West Ham, S.)	Rankin, John
Davies, Ifor (Gower)	Jones, J. Idwal (Wrexham)	Redhead, E. C.
Davies, S. O. (Merthyr)	Jones, T. W. (Merioneth)	Reld, William
Deer, George	Kelley, Richard	Roberts, Albert (Normanton)
Diamond, John	Kenyon, Clifford	Roberts, Goronwy (Caernarvon)
Dodds, Norman	Key, Rt. Hon. C. W.	Robertson, John (Paisley)
Donnelly, Desmond	King, Dr. Horace	Robinson, Kenneth (St. Pancras, N.)
Driberg, Tom	Lee, Frederick (Newton)	Ross, William
Ede, Rt. Hon. C.	Lee, Miss Jennie (Cannock)	Shinwell, Rt. Hon. E.
Edwards, Walter (Stepney)	Lewis, Arthur (West Ham, N.)	Short, Edward
Evans, Albert	Loughlin, Charles	Silverman, Julius (Aston)
Fernyhough, E.	Mabon, Dr. J. Dickson	Silverman, Sydney (Nelson)
Finch, Harold	McCann, John	Skeffington, Arthur
Fitch, Alan	MacColl, James	Slater, Mrs. Harriet (Stoke, N.)
Fletcher, Eric	McInnes, James	Slater, Joseph (Sedgefield)
	McKay, John (Wallsend)	Small, William
Foot, Dingle (Ipswich)	Mackie, John (Enfield, East)	Smith, Ellis (Stoke, S.)
Foot, Michael (Ebbw Vale)	McLeavy, Frank	Snow, Julian
Forman, J. C.	Macpherson, Malcolm (Stirling)	Sorensen, R. W.
Fraser, Thomas (Hamilton)	Mallalieu, J.P.W. (Huddersfield, E.)	Soskice, Rt. Hon. Sir Frank
Gaitskell, Rt. Hon. Hugh	Mapp, Charles	Spriggs, Leslie
Galpern, Sir Myer	Marsh, Richard	Steele, Thomas
George, Lady Megan Lloyd (Crmrthn)	Mason, Roy	Stewart, Michael (Fulham)
Ginsburg, David	Mayhew, Christopher	Stones, William
Gourlay, Harry	Mellish, R. J.	Strachey, Rt. Hon. John
Grey, Charles	Mendelson, J. J.	Swain, Thomas

Symonds, J. B.	Wainwright, Edwin	Willis, E. G. (Edinburgh, E.)
Taylor, Bernard (Mansfield)	Warbey, William	Winterbottom, R. E.
Thompson, Dr. Alan (Dunfermline)	Watkins, Tudor	Woodburn, Rt. Hon. A.
Thomson, G. M. (Dundee, E.)	Wells, Percy (Faversham)	Woof, Robert
Thornton, Ernest	Whitlock, William	Wyatt, Woodrow
Thorpe, Jeremy	Wilkins, W. A.	Yates, Victor (Ladywood)
Timmons, John	Willey, Frederick	Zilliacus, K.
Ungoed-Thomas, Sir Lynn	Williams, LI. (Abertillery)	TELLERS FOR THE NOES:
Wade, Donald	Williams, W. R. (Openshaw)	Mr. Lawson and Dr. Broughton.

Mr. Fletcher

I beg to move, in page 5, line 29, at the end to insert: (b) a citizen of the United Kingdom and Colonies. This Amendment was put down by my right hon. and hon. Friends and myself largely in order that we might ventilate the whole question of the principle of deportation and the extent to which it ought to be allowed to go in the Bill. It will, of course, be appreciated that deportation really has nothing whatever to do with the control of immigration at all. It is an entirely separate subject. We can have complete control of immigration without having any provisions in the Bill about deportation. If we merely want to prevent the people coming here who will be excluded by the Bill, we do that by Part I of the Bill. We do not want any of the provisions of Part II with regard to deportation for that purpose. In other words, we should be quite clear that the provisions about deportation are no necessary corollary of what we are doing to control immigration. It does not mean that they cannot be justified, but they have to be justified separately and independently of any reason given for the control of immigration.

Deportation is a penalty. Until comparatively recently it was unknown in our penal code. Even aliens, as far as I recall, could not be deported before the Aliens Act of 1914. They might have been liable to extradition under some of the extradition treaties, but that is a separate matter. We are now introducing this principle of deportation of Commonwealth citizens, and I think it is pertinent to remind the Committee of what the Home Secretary said on this part of the subject when moving the Second Reading of the Bill, because it rather supports what my hon. Friend the Member for Leeds, East (Mr. Healey) was saying earlier about the pressures to which the Government were subjected by the Conservative conference which led them to introduce this Bill at all. In fact, the Home Secretary admitted as much, because on Second Reading he said: I should like now to deal shortly with Part II of the Bill…we have long been pressed to introduce measures to authorise the deportation of immigrants from the Commonwealth who offend against our laws…"—[OFFICIAL RETORT 16th November, 1961; Vol. 649, c. 702.] The right hon. Gentleman went on to say that, in the ordinary way, the Government would not have introduced any measures to deport immigrants from the Commonwealth, but that as they were going to introduce a Bill to control immigration they thought it would be convenient at the same time to ask for powers to deport offenders. That being so, we have to consider what, if any, classes of people should be subject to deportation.

It is conceded in the Bill as it stands that certain classes or categories of Commonwealth citizens should not be liable to deportation in any circumstance. The object of this Amendment is also to exclude from the penalty and terror of deportation any citizen of the United Kingdom and Colonies. It will be observed, of course, that the provisions with regard to deportation do not apply merely to new immigrants who will come into the country after the Bill becomes an Act. They will operate as soon as the Bill is passed on immigrants already here. I am not sure that that is a principle that can be defended.

Deportation will result from conviction for some criminal offence, and it will be part of the punishment, but it will, of course, be particularly severe in many cases, a particularly savage form of punishment, and it has to be justified as such. Advocates of the most modern system of penology and criminal reform take the view, quite rightly I think, that one of the chief objects of the criminal law should be to reform an offender. Various different types of prisons and places of detention have been introduced in recent years in order to provide a variety of methods of dealing with criminal offenders.

5.45 p.m.

It will be observed that if we deport an offender it puts out of our power any possibility of reforming him after he quits the country. Deportation, therefore, is analogous to transportation. The Attorney-General laughs, but surely if an Australian citizen comes to this country and commits an offence and is recommended for deportation, he might well regard it as transportation. I should have thought that it was only a question of the use of words. However, be that as it may, deportation removes the person deported from any reforming element in the criminal law. The reason why we think that citizens of the United Kingdom and colonies should be exempted from deportation is that, as we argued on Clause 1, we think that they are in a special category.

Be it observed that since the Act of 1948, for which my right hon. Friend was responsible, citizens of the Colonies have for numerous purposes, if not all, been equated with citizens of the United Kingdom. They are distinguished from all other British subjects who may be citizens of a self-governing dominion or of a nation which has attained self-government. They are distinguished from all these British subjects because they either live in the United Kingdom or in a part of the Commonwealth which has not attained self-government and for which this Parliament has supreme ultimate responsibility, including, I should have thought, the responsibility, if they be criminals, to use the resources of the criminal law for reforming them. That is a responsibility which cannot be discharged if we deport them.

I should have thought, therefore, that on that ground alone this Amendment had substance. But I think that it has even greater substance, because we are still anxious in the Bill, with all the inroads that it is making into the stability and coherence of the Commonwealth and with all these limitations, to preserve as much as we can of the fabric of the Commonwealth and to identify with the Motherland those British subjects from overseas who are not members of any self-governing community and who, therefore, have special ties with the United Kingdom. For all these reasons, and, I have no doubt, for those which my hon. Friends may advance, I very much hope that the Government will accept the Amendment.

Mr. S. Silverman

I recognise that in the next following Clause there are limitations upon the right of deportation which take away some of the more extreme disadvantages of the Clause we are now considering. I recognise also that, when we come to that Clause, there may be an opportunity to amend it so as to remove some categories out of the ambit of the right to deport. Nevertheless, I think that the Committee should be very grateful to my hon. Friend the Member for Islington, East (Mr. Fletcher) and those who acted with him in putting down this Amendment as a challenge to the whole principle of applying deportation even for criminal offences to members of the family. That is really the effect of it.

If one were to concede the case for the Bill at all, and I certainly do not do that, it would be a case for limiting and controlling immigration. Once a person has been exempted from that restriction, however, once it has been decided that his right as a British subject is not to be limited as the rights of other British subjects are limited by the general operation of the Bill, then, I suggest, it is wrong in principle, once the person is here, once we have let him in not as an alien but as a British citizen, to impose upon him criminal sanctions which are not applied to his fellow citizens.

People may take more liberal or progressive views even about aliens than are commonly accepted. Nevertheless, I think it would be universally conceded that the question is quite different when one is dealing with aliens who never had under our laws the right to come at all. In this Bill we are not dealing with aliens. A great deal of the discussion on some of the Amendments has been bedevilled and perverted by a tacit assumption—which I invite the Committee not to make—that whatever has been considered proper in respect of aliens one is entitled to do also in respect of British subjects. That is not a principle which anyone accepts. For those who are born here or are citizens of the United Kingdom here, it is a long time since we exercised the right to expel, exile or, as my hon. Friend said, transport them for criminal offences. We do not do it any more. The question raised by the Amendment is whether we should apply to British subjects whose right to come here and live among us we have accepted, even under the limitations of the Bill, a power of exile which we do not exercise in respect of other citizens.

I feel certain that this is one of the provisions of the Bill which are there only because of the hasty and ill-considered manner in which it was put together and presented to the House. Under the Amendment which the Committee has just accepted, on the recommendation of the Home Secretary, unless the House otherwise determines all these powers will come to an end about 18 months from the time when the Bill becomes operative as a Statute. Is it worth while for 18 months to introduce so fundamental a discrimination between one British subject and another both of whom have the right to come here?

Mr. Fletcher

If my hon. Friend will forgive me, I think that the position is rather worse than he fancies. As I understand it, it is only Part I of the Bill which, by virtue of the Amendment to Clause 5 we have just passed, will come to an end next year. Part II will be permanent.

Mr. Silverman

I am much obliged to my hon. Friend for drawing my attention to that. I was wrong, and my error might have led me into ignoring or making light of what is one of the most serious aspects of the Clause as it stands, namely, that it will apply to Commonwealth citizens already here before the Bill was thought of. This seems to be a very serious extension, and it adds reinforcement to the argument I was addressing to the Committee.

I do not want to take a great deal of time on this. It is the sort of question on which people make up their minds almost instinctively when the proposition is put to them. There is the kind of mind which would instinctively say, "Here is someone who has done something wrong, who has offended us, who has hurt us or damaged us, someone who has abused our hospitality. Let us consider what revenge we may exercise upon him". To that type of mind the provision which we seek to amend will not seem very harmful. There is another type of mind which goes instinctively the other way, "Here is someone who belongs to us, someone like us, living within the ambit not merely of our laws but of our way of life, our social circumstances, our conditions, our housing, our education, our employment and our economic surroundings, who has found himself in conflict with the law". I think that most of us would feel that it would be quite wrong in those cases to discriminate between one British subject and other so as to apply a further and rather cruel penalty in addition to the penalties which he already has incurred and which have rightly been exacted from him merely because he is a British subject who derives his citizenship in a way other than the way in which the rest of us have done.

I ask the hon. and learned Gentleman to consider this matter again very carefully. Do we really want this provision? Do we want to reintroduce this power of transportation in respect of one limited class of potential offenders? By retaining it, will not the Government declare again that they are willing to slip further and further down a slippery slope the end of which will be the undermining of all the things which have made British citizenship something uniquely valuable in the world?

The Joint Under-Secretary of State for the Home Department (Mr. Charles Fletcher-Cooke)

I feel that I should claim the indulgence of the Committee on this my first attempt at the Box on the Bill.

I understand that the purpose of the Amendment is to include among those who are defined—or whose definition as such is attempted—by subsection (2) as belonging to the United Kingdom all those who are citizens of the United Kingdom and Colonies. This, of course, would be an extremely wide extension. The Amendment would make it impossible for any citizen of the United Kingdom and Colonies to be deported however recently he had come to this country and whatever crime he might have committed.

At an earlier stage of our discussions, an attempt was made, but was rejected by the Committee, to draw a distinction between the treatment of those who came from the self-governing Dominions and those who came from the Colonies. The distinction was rejected. This is another attempt to introduce it.

6.0 p.m.

The hon. Member for Islington, East (Mr. Fletcher) attempts to get away from that decision by saying that Part II has nothing to do with Part I. That is not true, because it is possible for a conviction and subsequent deportation to take place under Part II for offences committed under Part I. There is, therefore, no dichotomy between the two parts such as the hon. Gentleman and, I think, the hon. Member for Nelson and Colne (Mr. S. Silverman) attempted to draw. The hon. Member for Nelson and Colne said, "Once you have let a citizen of the United Kingdom and Colonies in, you should not be able to deport him". But, among other examples, there are those who have been let in subject to conditions. If they break those conditions—the Committee has already pronounced on the conditions—that is a breach of Part I and an offence which might subsequently lead to a conviction and a recommendation for deportation. Furthermore, from the practical point of view, if we exclude from deportation all those who have been admitted, it would inevitably follow, I fear, that in cases of doubt fewer people would be admitted than we hoped to see admitted because there would subsequently be no power to deport them.

We have no intention in the Bill to disturb the arrangement that there is a common citizenship between the United Kingdom and the Colonies. But the effect of subsection (2) is that those who belong to the United Kingdom by birth, parentage, naturalisation or marriage cannot be deported. and we cannot discriminate between those who come from the Colonies and those who come from self-governing Dominions if only because there comes a time when those who are here from what were Colonies find themselves, while they are here or even in passage to this country, coming from Colonies which have meanwhile achieved independence.

As the hon. Member for Nelson and Colne, among others, said, there are tremendous safeguards under Clause 7 against deportation. It is to be used only in the most extreme circumstances. It is subject to all sorts of safeguards and discretions, and, of course, no one who has been here for five years can be deported. We are, therefore, dealing only with people who have fairly recently arrived and with those who have abused our hospitality by committing serious criminal offences.

The power to deport has been taken by most of the Colonies. They take and retain the power to deport citizens of the United Kingdom and of the Colonies. Our measures are, if anything, more liberal than theirs in many cases. They are certainly more liberal than those of some Colonies dealing with aliens. It will not be possible to deport a Commonwealth citizen except on the recommendation of a court; and there is the five years exemption. The powers of Colonies in relation to aliens are much wider than the ones we propose.

I must deal with a point which was made by the hon. Member for Islington, East. This is not transportation. Transportation is sending an offender to a country where he has never lived before. It is a question of sending him to a wild, inhospitable and hostile environment with which he has had no connection. Deportation is a matter of sending an offender back to his own people where he has at least as good a chance of reformation as he has here.

Mr. Jeremy Thorpe (Devon, North)

I wish to touch on two points arising out of the argument of the Joint Under-Secretary of State.

The first thing that he said which I found somewhat fantastic was this. The constitutional theory which he put forward was that it would not be possible to differentiate between people who come from the Colonies and people who come from the Commonwealth on the ground that some constitutional change might take place after they arrive. This is a problem which, I think, has been rather unnaturally inflated by the hon. and learned Gentleman, rather as if a Colony will achieve independence while an immigrant is on the high seas or is in transit to this country. I should have thought that it followed that the status of a person would change if he were in this country in the same way that the diplomatic status of a Colony changes on the grant of independence. Colonial development and welfare loans and many other Acts of Parliament passed by the House of Commons are such that their operation alters when and in so far as a territory achieves independence.

The point of the Amendment is that, while those people have colonial status, we have a special responsibility for them in the economic sense. Therefore, they should have greater rights in earning their livelihood in this country than those who belong to the independent Commonwealth. It is ludicrous for the Joint Under-Secretary of State to say that it is impossible to make a distinction between the two. There is a vesting date on which a country achieves independence. That means that it ceases to be represented at the Colonial Office, ceases to qualify for colonial development and welfare loans, and its people cease to qualify for exemption under this Clause if the Amendment is passed. To say that this change can operate for at least nine statutory purposes but not for the purpose of this Bill is very difficult to swallow.

I found somewhat sinister the Joint Under-Secretary of State's suggestion that, if the Amendment were carried, fewer people would probably come into this country——

Mr. S. Silverman

Be allowed into this country.

Mr. Thorpe

Yes, be allowed into this country, by the immigration officers. The implication was that the Home Office and, in the hon. and learned Member's view, the immigration officers are likely to regard this Clause as a useful safety measure for repairing their errors of judgment as applied to intending immigrants That is a recognition of the fallibility of human judgment, and it therefore makes it all the more difficult to accept the Attorney-General's argument that no appeal is needed save to the Home Office. That was an extremely sinister implication in the argument.

I ask the Joint Under-Secretary of State to think again about this idea that it is constitutionally impossible to differentiate between colonial people and people who are members of the independent Commonwealth. We have succeeded in doing that in at least nine Acts of Parliament, and I do not see why this difference should cause any difficulty at all.

Mr. Fletcher

Apart from the reasons given by the hon. Member for Devon, North (Mr. Thorpe), another serious objection to the Bill as drafted is its retrospective character. I appreciate that there are safeguards in Clause 7, but we always find members of the Conservative Party holding up their hands in horror at any thought of retrospective legislation. But this is retrospective legislation of the worst kind, because it is in a Bill dealing with criminal matters. Retrospective legislation may be justified in connection with fiscal matters and has been justified in fiscal legislation introduced by both parties. But legislation of a retrospective character in a criminal sense has always been abhorrent in our jurisprudence. That is what the Bill as drafted is, and that is why we want to limit its effect.

As has been pointed out, immigrants who have been here for even up to five years will still be liable to deportation under the Bill. They came here under a system of jurisprudence, a system of criminal law, which they understood and which they thought was the system of a civilised country. They knew that we had certain criminal laws and a certain system of punishment. They knew that people could be sent to prison. But there was no provision for deportation. People who have lived here for five years will under the Bill become retrospectively liable to these sanctions. This is another reason why I hope that my hon. Friends will join me in the Division Lobby in support of the Amendment.

Question put, That those words be there inserted:—

The Committee divided: Ayes 179, Noes, 246.

Division No. 71.]	AYES	[6.10 p.m.
Abse, Leo	Allaun, Frank (Salford, E.)	Baxter, William (Stirlingshire, W.)
Ainsley, William	Allen, Scholefield (Crewe)	Bence, Cyril
Albu, Aust[...]n	Awbery, Stan	Bennett, J. (Glasgow, Bridgeton)
Benson, Sir George	Holt, Arthur	Plummer, Sir Leslie
Blackburn, F.	Hoy, James H.	Popplewell, Ernest
Blyton, William	Hughes, Emrys (S. Ayrshire)	Prentice, R. E.
Boardman, H.	Hughes, Hector (Aberdeen, N.)	Price, J. T. (Westhoughton)
Bowden, Rt. Hn. H. W. (Leics. S.W.)	Hunter, A. E.	Proctor, W. T.
Bowen, Roderic (Cardigan)	Hynd, H. (Accrington)	Randall, Harry
Bowles, Frank	Hynd, John (Attercliffe)	Rankin, John
Boyden, James	Irving, Sydney (Dartford)	Rhodes, H.
Braddock, Mrs. E. M.	Jay, Rt. Hon. Douglas	Roberts, Albert (Normanton)
Brockway, A. Fenner	Jeger, George	Roberts, Goronwy (Caernarvon)
Brown, Rt. Hon. George (Belper)	Jenkins, Roy (Stechford)	Robertson, John (Paisley)
Butler, Herbert (Hackney, C.)	Jones, Dan (Burnley)	Robinson, Kenneth (St. Pancras, N.)
Callaghan, James	Jones, Elwyn (West Ham, S.)	Ross, William
Castle, Mrs. Barbara	Jones, J. Idwal (Wrexham)	Shinwell, Rt. Hon. E.
Chapman, Donald	Jones, T. W. (Merioneth)	Short, Edward
Craddock, George (Bradford, S.)	Kenyon, Clifford	Silverman, Julius (Aston)
Cronin, John	Key, Rt. Hon. C. W.	Silverman, Sydney (Nelson)
Crosland, Anthony	King, Dr. Horace	Skeffington, Arthur
Darling, George	Lawson, George	Slater, Mrs. Harriet (Stoke, N.)
Davies, Rt. Hn. Clement (Montgomery)	Lee, Frederick (Newton)	Slater, Joseph (Sedgefield)
Davies, Harold (Leek)	Lee, Miss Jennie (Cannock)	Small, William
Davies, Ifor (Gower)	Loughlin, Charles	Smith, Ellis (Stoke, S.)
Davies, S. O. (Merthyr)	Mabon, Dr. J. Dickson	Sorensen, R. W.
Deer, George	McCann, John	Soskice, Rt. Hon. Sir Frank
Diamond, John	MacColl, James	Spriggs, Leslie
Dodds, Norman	Mclnnes, James	Steele, Thomas
Donnelly, Desmond	McKay, John (Wallsend)	Stewart, Michael (Fulham)
Ede, Rt. Hon. C.	Mackie, John (Enfield, East)	Strachey, Rt. Hon. John
Edwards, Walter (Stepney)	McLeavy, Frank	Strauss, Rt. Hn. G. R. (Vauxhall)
Evans, Albert	MacPherson, Malcolm (Stirling)	Swain, Thomas
Fernyhough, E.	Mallalieu, J.P.W.(Huddersfield, E.)	Symonds, J. B.
Finch, Harold	Manuel, A. C.	Taylor, Bernard (Mansfield)
Fitch, Alan	Mapp, Charles	Thompson, Dr. Alan (Dunfermline)
Fletcher, Eric	Marsh, Richard	Thomson, G. M. (Dundee, E.)
Foot, Dingle (Ipswich)	Mason, Roy	Thornton, Ernest
Foot, Michael (Ebbw Vale)	Mayhew, Christopher	Thorpe, Jeremy
Forman, J. C.	Mellish, R. J.	Timmons, John
Fraser, Thomas (Hamilton)	Mendelson, J. J.	Ungoed-Thomas, Sir Lynn
Gaitskell, Rt. Hon. Hugh	Millan, Bruce	Wade, Donald
Galpern, Sir Myer	Mitchison, G. R.	Wainwright, Edwin
George, Lady Megan Lloyd (Crmrthn)	Monslow Walter	Warbey, William
Ginsburg, David	Moody, A. S.	Weitzman, David
Gourlay, Harry	Morris, John	Wells, Percy (Faversham)
Grey, Charles	Mart, D. L.	Whitlock, William
Griffiths, Rt. Hon. James (Llanelly)	Moyle, Arthur	Wilkins, W. A.
Griffiths, W. (Exchange)	Neal, Harold	Willey, Frederick
Grimond, Rt. Hon. J.	Noel-Baker, Francis (Swindon)	Williams, LI. (Abertillery)
Gunter, Ray	Noel-Baker, Rt.Hn.Philip (Derby, S.)	Williams, W. R. (Openshaw)
Hall, Rt. Hn. Glenvil (Colne Valley)	Oliver, G. H.	Willis, E. C. (Edinburgh, E.)
Hamilton, William (West Fife)	Oram, A. E.	Winterbottom, R. E.
Hannan, William	Oswald, Thomas	Woodburn, Rt. Hon. A.
Hart, Mrs. Judith	Padley, W. E.	Woof, Robert
Hayman, F. H.	Paget, R. T.	Wyatt, Woodrow
Healey, Denis	Parker, John	Yates, Victor (Ladywood)
Herbison, Miss Margaret	Pavitt, Laurence
Hill, J. (Midlothian)	Pearson, Arthur (Pontypridd)	TELLERS FOR THE AYES:
Hilton, A. V.	Peart, Frederick	Dr. Broughton and Mr. Redhead
Holman, Percy	Pentland, Norman
NOES
Allason, James	Brooman-White, R.	Corfield, F. V.
Amery, Rt. Hon. Julian	Brown, Alan (Tottenham)	Craddock, Sir Beresford
Arbuthnot, John	Browne, Percy (Torrington)	Critchley, Julian
Ashton, Sir Hubert	Bryan, Paul	Crosthwaite-Eyre, Col. Sir Oliver
Atkins, Humphrey	Buck, Antony	Cumin, Charles
Barlow, Sir John	Billiard, Denys	d'Avigdor-Goldsmid, Sir Henry
Batsford, Brian	Bullus, Wing Commander Eric	de Ferranti, Basil
Baxter, Sir Beverley (Southgate)	Burden, F. A.	Digby, Simon Wingfield
Beamish, Col. Sir Tufton	Butler, Rt. Hn. R. A.(Saffron Walden)	Donaldson Cmdr. C. E. M.
Bell, Ronald	Carr, Compton (Barons Court)	Doughty, Charles
Berkeley, Humphry	Carr, Robert (Mitcham)	Drayson, G. B.
Bevins, Rt. Hon. Reginald	Cary, Sir Robert	Duncan, Sir James
Biffen, John	Channon, H. P. G.	Eden, John
Biggs-Davison, John	Chataway, Christopher	Elliot, Capt. Walter (Carshalton)
Bingham, R. M.	Chichester-Clark, R.	Elliott, R.W.(Nwcstle-uponTyne, N.)
Bishop, F. P.	Clark, Henry (Antrim, N.)	Emery, Peter
Black, Sir Cyril	Clark, William (Nottingham, S.)	Emmet, Hon. Mrs. Evelyn
Bossom, dive	Clarke, Brig. Terence (Portsmth, W.)	Errington, Sir Eric
Bourne-Arton, A.	Cleaver, Leonard	Erroll, Rt. Hon. F. J.
Box, Donald	Cole, Norman	Farr, John
Boyd-Carpenter, Rt. Hon. J.	Collard, Richard	Finlay, Graeme
Boyle, Sir Edward	Cooke, Robert	Fletcher-Cooke, Charles
Brewis, John	Cooper, A. E.	Fraser, Hn. Hugh (Stafford & Stone)
Bromley-Davenport, Lt.-Col. Sir Walter	Cordeaux, Lt.-Col. J. K.	Fraser, Ian (Plymouth, Sutton)

Freeth, Denzil	Litchfield, Capt. John	Rees-Davies, W. R.
Galbraith, Hon. T. G. D.	Longden, Gilbert	Renton, David
Gammans, Lady	Loveys, Walter H.	Ridley, Hon. Nicholas
Gardner, Edward	Lucas, Sir Jocelyn	Ridsdale, Julian
Gibson-Watt, David	Lucas-Tooth, Sir Hugh	Robertson, Sir D. (C'thn's & S'th'ld)
Gilmour, Sir John	McAdden, Stephen	Robson Brown, Sir William
Glover, Sir Douglas	MacArthur, Ian	Ropner, Col. Sir Leonard
Goodhart, Philip	McLaren, Martin	Royle, Anthony (Richmond, Surrey)
Gough, Frederick	McLaughlin, Mrs. Patricia	Russell, Ronald
Grant, Rt. Hon. William	Maclay, Rt. Hon. John	Scott-Hopkins, James
Grant-Ferris, Wg. Cdr. R.	Maclean, Sir Fitzroy (Bute & N. Ayrs.)	Seymour, Leslie
Green, Alan	Macleod, Rt. Hn. Iain (Enfield, W.)	Sharples, Richard
Gresham Cooke, R.	Macleod, John (Ross & Cromarty)	Shaw, M.
Gurden, Harold	McMaster, Stanley R.	Simon, Rt. Hon. Sir Jocelyn
Hall, John (Wycombe)	Macpherson, Niall (Dumfries)	Skeet, T. H. H.
Hamilton, Michael (Wellingborough)	Maddan, Martin	Smith, Dudley (Br'ntf'rd & Chiswick)
Harris, Frederic (Croydon, N.W.)	Maginnis, John E.	Spearman, Sir Alexander
Harrison, Brian (Maldon)	Maitland, Sir John	Speir, Rupert
Harrison, Col. Sir Harwood (Eye)	Manningham-Buller, Rt. Hn. Sir R.	Stevens, Geoffrey
Harvey, John (Walthamstow, E.)	Markham, Major Sir Frank	Stodart, J. A.
Heard, Rt. Hon. Sir Llonel	Marshall, Douglas	Stoddart-Scott, Col. Sir Malcolm
Hendry, Forbes	Matthews, Gordon (Meriden)	Studholme, Sir Henry
Hicks Beach, Maj. W.	Mawby, Ray	Summers, Sir Spencer (Aylesbury)
Hiley, Joseph	Maxwell-Hyslop, R. J.	Tapsell, Peter
Hill, Dr. Rt. Hon. Charles (Luton)	Maydon, Lt.-Cmdr. S. L. C.	Taylor, Sir Charles (Eastbourne)
Hill, Mrs. Eveline (Wythenshawe)	Mills, Stratton	Taylor, W. J. (Bradford, N.)
Hill, J. E. B. (S. Norfolk)	Montgomery, Fergus	Teeling, Sir William
Hirst, Geoffrey	More, Jasper (Ludlow)	Temple, John M.
Hobson, John	Morrison, John	Thomas, Leslie (Canterbury)
Hocking, Philip N.	Mott-Radclyffe, Sir Charles	Thompson, Kenneth (Walton)
Holland, Philip	Nabarro, Gerald	Thornton-Kemsley, Sir Colin
Hollingworth, John	Neave, Airey	Tilney, John (Wavertree)
Hornby, R. P.	Nicholson, Sir Godfrey	Turner, Colin
Howard, John (Southampton, Test)	Oakshott, Sir Hendrie	Turton, Rt. Hon. R. H.
Hughes Hallett, Vice-Admiral John	Orr-Ewing, C. Ian	Tweedsmuir, Lady
Hughes-Young, Michael	Osborn, John (Hallam)	van Straubenzee, W. R.
Hutchison, Michael Clark	Osborne, Sir Cyril (Louth)	Vaughan-Morgan, Rt. Hon. Sir John
Iremonger, T. L.	Page, Graham (Crosby)	Vickers, Miss Joan
Irvine, Bryant Godman (Rye)	Page, John (Harrow, West)	Wakefield, Edward (Derbyshire, W.)
Jackson, John	Pannell, Norman (Kirkdale)	Wakefield, Sir Wavell (St. M'lebone)
James, David	Partridge, E.	Walder, David
Jenkins, Robert (Dulwich)	Pearson, Frank (Clitheroe)	Walker, Peter
Johnson, Dr. Donald (Carlisle)	Peel, John	Walker-Smith, Rt. Hon. Sir Derek
Johnson, Eric (Blackley)	Peyton, John	Wall, Patrick
Johnson Smith, Geoffrey	Pickthorn, Sir Kenneth	Ward, Dame Irene
Jones, Rt. Hn. Aubrey (Hall Green)	Pitman, Sir James	Watkinson, Rt. Hon. Harold
Joseph, Sir Keith	Pitt, Miss Edith	Webster, David
Kerans, Cdr. J. S.	Pott, Percivall	Wells, John (Maidstone)
Kerby, Capt. Henry	Price, David (Eastlcigh)	Williams, Dudley (Exeter)
Kershaw, Anthony	Prior, J. M. L.	Wills, Sir Gerald (Bridgwater)
Kirk, Peter	Prior-Palmer, Brig. Sir Otho	Wilson, Geoffrey (Truro)
Langford-Holt, Sir John	Profumo, Rt. Hon. John	Wise, A. R.
Leather, E. H. C.	Proudfoot, Wilfred	Wolrige-Gordon, Patrick
Leavey, J. A.	Pym, Francis	Wood, Rt. Hon. Richard
Leburn, Gilmour	Quennell, Miss J. M.	Woodnutt, Mark
Legge-Bourke, Sir Harry	Ramsden, James	Worsley, Marcus
Lewis, Kenneth (Rutland)	Rawlinson, Peter	TELLERS FOR THE NOES:
Lindsay, Sir Martin	Redmayne, Rt. Hon. Martin	Mr. Whitelaw and
Linstead, Sir Hugh	Rees, Hugh	Mr. Gordon Campbell.

The Deputy-Chairman (Sir Robert Grimston)

With the next Amendment, in the name of the right hon. Gentleman the Member for Orkney and Shetland (Mr. Grimond), we can also discuss, although it will not be called for a Division, the Amendment in the name of the hon. Member for Nelson and Colne (Mr. S. Silverman), in page 5, line 37, at the end to insert: (d) a person who was ordinarily resident in the United Kingdom on the first day of November, nineteen hundred and sixty-one.

Mr. Donald Wade (Huddersfield, West)

I beg to move, in page 5, line 36, to leave out paragraph (c) and to insert: (c) a person who was ordinarily resident in the United Kingdom on the first day of November, nineteen hundred and sixty-one: or (d) a spouse or child, stepchild, or adopted child under the age of twenty-one years, of a person of a description specified in paragraph (a) or paragraph (b) or paragraph (c) of this subsection. I move this Amendment on behalf of my right hon. Friend the Member for Orkney and Shetland (Mr. Grimond) and my other right hon. and hon. Friends, and I shall do so very briefly because whatever may be said or done about it depends upon the answer forthcoming from the Government.

By subsection (2) of this Clause certain persons are exempt from this liability to deportation. They include, for example, a person born in the United Kingdom or a person whose father was born in the United Kingdom, and there are others who are exempt from the liability. The purpose of the Amendment is to extend the exemption to a person who was ordinarily resident in the United Kingdom on 1st November, 1961, and to the spouse, child, stepchild or adopted child under the age of 21 of anyone who is exempt under this subsection.

Let me give an example. An immigrant may come into this country with his wife and family; if one of his children were to commit an offence for which he would be liable to imprisonment, such child might be deported unless this Amendment were introduced. I am, of course, aware that by Clause 7 he would not be liable to be deported if under the age of 17, but I suggest that to take a child between the age of 17 and 21 away from his family and deport him would be unduly hard, and that unless a provision such as this is inserted in the Bill that might take place.

On Clause 1, I moved an Amendment to clarify the definition of those who would be entitled to come into the country; that was When we were discussing immigration into the country. I advocated the inclusion of the wife, the spouse and children. At that time the Minister of State objected to the wording of my Amendment. He did me the courtesy of writing to me afterwards explaining. He undertook to introduce an Amendment on Clause 2. In due course that Amendment was introduced, defining more clearly those persons who are entitled to come in with an immigrant, in particular his wife and family.

When moving that Government Amendment yesterday the Home Secretary used these words: A desire has been expressed, on both sides of the Committee, that our intentions in these matters should be made clear in the terms of the Bill and should not be left to be framed in administrative instructions to immigration officers. Although it was not our original idea in drafting the Bill, the Amendments have been put down with a view to meeting the wishes of the Committee in our previous discussions."—[OFFICIAL REPORT, 6th February, 1962; Vol. 653, c. 318.] In due course, that Amendment was approved.

I recognise that there is some difference between the wording of that Government Amendment to Clause 2 and the wording of the Amendment that I am now moving, but in substance they are the same, and I suggest to the Committee that if we are to have a definition in Clause 2 of those who may come into the country, we should have a somewhat similar definition in this Clause dealing with those who are liable to be deported. If it is true, as the Home Secretary said, that we should have this incorporated in the Bill, and not left to instructions to immigration officers, it seems to me that there is an almost stronger case for writing into the Bill some clarification of the class of persons liable to deportation under this Clause.

I should like to make it clear that I am not opposed to deportation in all circumstances. My own view is that the principle contained in subsection (1) is not in itself objectionable. I am well aware that there is a small minority of immigrants who come into this country who act in such a way that they deserve punishment and do very great harm to the great majority of their fellow citizens, and I believe there are circumstances in which the proper course is to deport, but I think we should exercise great care in deciding to what classes this new provision should apply.

It may be that the Government have a satisfactory answer; I hope so. I am quite willing to withdraw my Amendment if the Government intend to introduce an Amendment similar to that which was introduced to Clause 2; but, if not, it will be necessary to press this further. However, I shall not pursue my argument at the moment, because I am anxious to know the intentions of the Government.

Mr. J. Grimond (Orkney and Shetland)

I want very briefly to support what has been so eloquently said by my hon. Friend the Member for Huddersfield, West (Mr. Wade). I do not want to go over again all that he has said, but I want to emphasise this point, that it is quite obviously vital, if we are to have these provisions for deportation of a class of people which has not been liable to it before, that we really should define it and confine it as strictly as we possibly can. Like my hon. Friend, I do not entirely rule out the possibility that in certain limited cases it may be desirable, but again, like, I am certain, hon. Members who spoke on the previous Amendment, I am personally very much biassed in favour of trying to retain these people in the community, even though they may have transgressed against our laws. That being so, I would urge the Government to think very carefully about the position of children, even if over 17, and certainly of a spouse.

Further, there is in our Amendment the question of the person ordinarily resident in the United Kingdom on 1st November, 1961, and the reason for that, I think, is very obvious and must, I should have thought, commend itself widely in the Committee. It is simply that we do not want retrospective legislation. We do not want to put people already in the country when this Bill was first introduced into a new position before the law. I cannot think that any great damage would be done to the wellbeing of the country by accepting this Amendment, and I should have thought that the reasons for the Amendment would have commended themselves to the Government.

Mr. Fletcher-Cooke

I understand very well the purposes of the Liberal Amendment. The effect of the first part of it would be that no one who was ordinarily resident here on 1st November, 1961, could be deported. If the deportation provisions of the Bill are acceptable in principle, as I understand they are, at least to the Liberal Party, then it is hard to see why anyone should be exempt from them merely because he arrived here before the Bill was introduced. The element of retrospection surely applies only if the conviction was before the Bill received the Royal Assent. And he can be recommended for deportation only if convicted after Part II of the Bill has come into force.

6.30 p.m.

Mr. Fletcher

What about the element of retrospection if the offence were committed before the Bill was introduced?

Mr. Fletcher-Cooke

I am much obliged to the hon. Member. That, with respect, is a much more powerful argument than that merely of arrival in this country. Although there are always two opinions about what is or what is not retrospection, whether in fiscal or other matters, nevertheless, it is undesirable in penal matters in case of doubt to come down on the wrong side of wherever the line should be drawn.

I should like to look at that point again because if the crime was committed—not the question of residence or of coming into the country which I do not regard as retrospection, but the actual commission of the crime before the Bill has become an Act—I concede that that case might be looked at as retrospection, and I will look at the point again.

Mr. S. Silverman

While not dissenting in the least from what has been said about offences committed before, is there not a great deal more in the other point than the Under-Secretary has conceded? Is there not an anomaly in drawing this distinction which, if the hon. Gentleman does not accept something like the spirit of the Amendment, he will be drawing? We should be saying that whereas we will not seek to exclude from entering into the country certain persons in certain situations, nevertheless we will enact the right to deport them if they are already here. Is it possible to justify that kind of distinction?

Mr. Fletcher-Cooke

I think it is. Once the Bill is law, if they subsequently commit a crime and are convicted they are in peril of deportation. I do not regard that as retrospection, but if they have already committed a crime, whether before or after the introduction of the Bill, it is arguable that that is retrospection. I go no further, though I think that is going a long way.

I am afraid that I cannot give satisfaction on the second part of the Amendment. The proposal to include the new paragraph (d) would exempt from deportation wives, husbands, or children under 21 of persons already exempt, and without the Amendment the Bill already gives the possibility of exemption from deportation to wives and to children under 17 inasmuch as no-one under 17 can be recommended for deportation under Clause 7 (1).

Exemption for wives is in accordance with the general expectation that she will acquire her husband's domicile, but it seems unreasonable that a man who does not belong to the United Kingdom, which is the test applied, should be totally exempt from deportation merely because he married a woman born in the United Kingdom, or whose father was born here, and who might never have been in the United Kingdom except at birth, or who was only a "belonger" because her father was born here. In deciding whether there should be deportation or there should be an order, the court or the Home Secretary would have regard to the hardship that might be caused to the wife if her husband were deported in certain types of cases. But where, for example, the partners are estranged it seems unreasonable that a deportation order should not be made against the husband.

As for the children, there is a dispute about the age between 17 and 21. If the family are all living here it is most unlikely that if the parents are exempt the children in practice would not be. In such an unlikely case of children not being exempted by discretion of the Home Secretary he would be very reluctant to make a deportation order. But the Amendment says nothing about the domicile of the parents and to take an extreme case there might well be young persons between 17 and 21 who, in the terms of the Amendment were children of such persons as are in the earlier subsections, but those parents might not be here at all.

To take another extreme case, an immigrant born in Canada of a mother born in the United Kingdom leaves Canada and comes here at the age of 18 and commits a serious crime. It would seem absurd to be able to exempt him from deportation merely because his mother happened to have been born here but had gone to Canada many years ago. I ask the Committee to rely on the Home Secretary's discretion that where there is a genuine close family tie he would be obviously very reluctant to break that tie, even though the offender, and it would have to be a serious offence, who was over 17, was otherwise liable to deportation. But where the offender is on his own and has committed a serious crime and his only claim to exemption is his parenthood, I do not see why he should be exempt and for these reasons I cannot accept the Amendment.

Mr. Fletcher

The debate has had one desirable result. We have extracted from the Government an assurance that they will consider the point which has emerged about retrospection. It seems to me clear that it would be retrospective legislation of the worst character if anybody in respect of an offence committed before the Bill was enacted should in any circumstance become liable to be deported, because that, in effect, would be imposing a sanction or penalty of a totally different order from that recognised by the law of the land at the time when the offence was committed. That is retrospective legislation of a penal kind of the worst character.

As I understand, we have had an assurance from the Under-Secretary that the Bill will be redrafted in order that it cannot be open to any possibility of construction that would permit such a retrospective result. So far so good. I fully support the arguments advanced from the Liberal benches. I thought that the Under-Secretary's reply to the main subject was disappointing, and I hope that the Amendment will be supported in the Lobby.

Mr. S. Silverman

I am a little shocked to see that representatives of the Home Office are apparently incapable of appreciating what an anomalous situation they are creating by means of the Clause and by their quite incomprehensibly rigid reaction to the argument presented by the hon. Member for Huddersfield, West (Mr. Wade) and others. I should have thought it anomalous to the point of being ridiculous to say that a man already established here before this monstrosity was conceived should have less rights than if he were an intending immigrant after the Bill became law.

That is the effect of the Amendment which the Home Secretary moved. If it is limited to Part I of the Measure, and if one refuses to make the same limitation or provide the same safeguard when dealing with Part II, it means that the established British citizen who is a resident here can be deported when in precisely the same circumstances, or very nearly so, he would be admitted under Part I.

I cannot understand, except on the assumption that nobody has taken any real trouble to examine this, why the Home Office commits itself to so utterly ridiculous a situation.

Question put, That the words proposed to be left out stand part of the Clause:—

The Committee divided: Ayes 240, Noes 177.

Division No. 72.]	AYES	[6.41 p.m.
Allason, James	Gibson-Watt, David	Maydon, Lt.-Cmdr. S. L. C.
Arbuthnot, John	Gilmour, Sir John	Mills, Stratton
Ashton, Sir Hubert	Glover, Sir Douglas	Montgomery, Fergus
Atkins, Humphrey	Goodhart, Philip	More, Jasper (Ludlow)
Barlow, Sir John	Goodhew, Victor	Morgan, William
Batsford, Brian	Gough, Frederick	Morrison, John
Baxter, Sir Beverley (Southgate)	Grant, Rt. Hon. William	Mott-Radclyffe, Sir Charles
Beamish, Col. Sir Tufton	Grant-Ferris, Wg. Cdr. R.	Nabarro, Gerald
Bell, Ronald	Green, Alan	Neave, Airey
Berkeley, Humphry	Gresham Cooke, R.	Nicholson, Sir Godfrey
Bevins, Rt. Hon. Reginald	Gurden, Harold	Oakshott, Sir Hendrie
Biffen, John	Hall, John (Wycombe)	Orr-Ewing, C. Ian
Biggs-Davison, John	Harris, Frederic (Croydon, N.W.)	Osborn, John (Hallam)
Bingham, R. M.	Harrison, Brian (Maldon)	Osborne, Sir Cyril (Louth)
Bishop, F. P.	Harvey, John (Walthamstow, E.)	Page, John (Harrow, West)
Black, Sir Cyril	Hay, John	Pannell, Norman (Kirkdale)
Bossom, Clive	Heald, Rt. Hon. Sir Lionel	Partridge, E.
Bourne-Arton, A.	Hendry, Forbes	Pearson, Frank (Clitheroe)
Box, Donald	Hicks Beach, Maj. W.	Peel, John
Boyd-Carpenter, Rt. Hon. J.	Hiley, Joseph	Peyton, John
Boyle, Sir Edward	Hill, Mrs. Eveline (Wythenshawe)	Pickthorn, Sir Kenneth
Brewis, John	Hill, J. E. B. (S. Norfolk)	Pilkington, Sir Richard
Bromley, Davenport, Lt-Col. Sir Walter	Hirst, Geoffrey	Pitman, Sir James
Brooman-White, R.	Hobson, John	Pitt, Miss Edith
Brown, Alan (Tottenham)	Hocking, Philip N.	Pott, Percivall
Browne, Percy (Torrington)	Holland, Philip	Price, David (Eastleigh)
Bryan, Paul	Hollingworth, John	Prior, J. M. L.
Buck, Antony	Hopkins Alan	Prior-Palmer, Brig. Sir Otho
Bullard, Denys	Hornby, R. P.	Profumo, Rt. Hon. John
Bullus, Wing Commander Eric	Howard, John (Southampton, Test)	Proudfoot, Wilfred
Burden, F. A.	Hughes Hallett, Vice-Admiral John	Pym, Francis
Butler, Rt.Hn.R.A.(Saffron Walden)	Hughes-Young, Michael	Quennell, Miss J. M.
Campbell, Cordon (Moray & Nairn)	Hutchison, Michael Clark	Ramsden, James
Carr, Robert (Mitcham)	Iremonger, T. L.	Rawlinson, Peter
Cary, Sir Robert	Irvine, Bryant Godman (Rye)	Redmayne, Rt. Hon. Martin
Channon, H. P. G.	Jackson, John	Rees, Hugh
Chichester-Clark, R.	James, David	Rees-Davies, W. R.
Clark, Henry (Antrim, N.)	Jenkins, Robert (Dulwich)	Renton, David
Clark, William (Nottingham, S.)	Johnson, Dr. Donald (Carlisle)	Ridley, Hon. Nicholas
Clarke, Brig. Terence (Portsmth, W.)	Johnson, Eric (Blackley)	Ridsdale, Julian
Cleaver, Leonard	Johnson Smith, Geoffrey	Robertson, Sir D. (C'thn's & S'th'ld)
Cole, Norman	Jones, Rt. Hn. Aubrey (Hall Green)	Robinson, Rt Hn Sir R. (B'pool, S.)
Collard, Richard	Joseph, Sir Keith	Robson Brown, Sir William
Cooke, Robert	Kerans, Cdr. J. S.	Ropner, Col. Sir Leonard
Cooper, A. E.	Kerby, Capt. Henry	Royle, Anthony (Richmond, Surrey)
Cordeaux, Lt.-Col. J. K.	Kirk, Peter	Russell, Ronald
Craddock, Sir Beresford	Langford-Holt, Sir John	Scott-Hopkins, James
Critchley, Julian	Leather, E. H. C.	Seymour, Leslie
Crosthwaite-Eyre, Col. Sir Oliver	Leavey, J. A.	Sharples, Richard
Curran, Charles	Leburn Gilmour	Shaw, M.
d'Avigdor-Goldsmid, Sir Henry	Legge-Bourke, Sir Harry	Simon, Rt. Hon. Sir Jocelyn
Deedes, W. F.	Lewis, Kenneth (Rutland)	Skeet, T. H. H.
de Ferranti, Basil	Linstead, Sir Hugh	Smith, Dudley (Br'ntf'd & Chiswick)
Digby, Simon Wingfield	Litchfield, Capt. John	Spearman, Sir Alexander
Donaldson, Cmdr. C. E. M.	Longden, Gilbert	Speir, Rupert
Drayson, G. B.	Loveys, Walter H.	Stevens, Geoffrey
Duncan, Sir James	Lucas, Sir Jocelyn	Stodart, J. A.
Eden, John	Lucas-Tooth, Sir Hugh	Stoddart-Scott, Col. Sir Malcolm
Elliot, Capt. Walter (Carshalton)	McAdden, Stephen	Studholme, Sir Henry
Elliott, R. W. (Newcstle-upon-Tyne, N.)	Mac Arthur, Ian	Summers, Sir Spencer (Aylesbury)
Emery, Peter	McLaren, Martin	Tapsell, Peter
Emmet, Hon. Mrs. Evelyn	McLaughlin, Mrs. Patricia	Taylor Sir Charles (Eastbourne)
Errington, Sir Eric	Maclay, Rt. Hon. John	Taylor, W. J. (Bradford, N.)
Erroll, Rt. Hon. F. J.	Maclean, Sir Fitzroy (Bute & N. Ayrs.)	Temple, John M.
Farr, John	Macleod, Rt. Hn. Iain (Enfield, W.)	Thomas, Leslie (Canterbury)
Fell, Anthony	McMaster, Stanley R.	Thompson, Kenneth (Walton)
Finlay, Graeme	Macpherson, Niall (Dumfries)	Thornton-Kemsley, Sir Colin
Fisher, Nigel	Maginnis, John E.	Tilney, John (Wavertree)
Fletcher-Cooke, Charles	Maitland, Sir John	Turner, Colin
Fraser, Hn. Hugh (Stafford & Stone)	Manningham-Buller, Rt. Hn. Sir R.	Turton, Rt. Hon. R. H.
Fraser, Ian (Plymouth, Sutton)	Markham, Major Sir Frank	Tweedsmuir, Lady
Freeth, Denzil	Marshall, Douglas	van Straubenzee, W. R.
Galbraith, Hon. T. G. D.	Matthews, Gordon (Meriden)	Vaughan-Morgan, Rt. Hon. Sir John
Gammans, Lady	Mawby, Ray	Vickers, Miss Joan
Gardner, Edward	Maxwell-Hyslop, B. J.	Wakefield, Edward (Derbyshire, W.)
Wakefield, Sir Wavell (St. M'lebone)	Webster, David	Wood, Rt. Hon. Richard
Walder, David	Wells, John (Maidstone)	Worsley, Marcus
Walker, Peter	Wills, Sir Gerald (Bridgwater)	Yates, William (The Wrekin)
Walker-Smith, Rt. Hon. Sir Derek	Wilson, Geoffrey (Truro)
Wall, Patrick	Wise, A. R.	TELLERS FOR THE AYES:
Ward, Darne Irene	Wolrige-Gordon, Patrick	Mr. Whitelaw and
		Mr. Michael Hamilton.
NOES
Abse, Leo	Hayman, F. H.	Parker, John
Ainsley, William	Healey, Denis	Pavitt, Laurence
Albu, Austen	Herbison, Miss Margaret	Pearson, Arthur (Pontypridd)
Allaun, Frank (Salford, E.)	Hewitson, Capt. M.	Peart, Frederick
Allen, Scholefield (Crewe)	Hill, J. (Midlothian)	Pentland, Norman
Awbery, Stan	Hilton, A. V.	Plummer, Sir Leslie
Baxter, William (Stirlingshire, W.)	Holman, Percy	Popplewell, Ernest
Bence, Cyril	Holt, Arthur	Prentice, R. E.
Bennett, J. (Glasgow, Bridgeton)	Hoy, James H.	Price, J. T. (Westhoughton)
Blackburn, r.	Hughes, Emrys (S. Ayrshire)	Proctor, W. T.
Blyton, William	Hughes, Hector (Aberdeen, N.)	Randall, Harry
Boardman, H,	Hunter, A. E,	Rankin, John
Bowden, Rt. Hn. H. W. (Leics. S.W.)	Hynd, H. (Accrington)	Redhead, E. C.
Bowen, Roderic (Cardigan)	Hynd, John (Attercliffe)	Rhodes, H.
Bowles, Frank	Irving, Sydney (Dartford)	Roberts, Albert (Normanton)
Boyden, James	Jay, Rt. Hon. Douglas	Roberts, Goronwy (Caernarvon)
Braddock, Mrs. E. M.	Jeger, George	Robertson, John (Paisley)
Brockway, A. Fenner	Jenkins, Roy (Stechford)	Robinson, Kenneth (St. Pancras, N.)
Brown, Rt. Hon. George (Belper)	Jones, Dan (Burnley)	Ross, William
Butler, Herbert (Hackney, C.)	Jones, Elwyn (West Ham, S.)	Short, Edward
Butler, Mrs. Joyce (Wood Green)	Jones, J. Idwal (Wrexham)	Silverman, Julius (Aston)
Castle, Mrs. Barbara	Jones, T. W. (Merioneth)	Silverman, Sydney (Nelson)
Chapman, Donald	Kenyon, Clifford	Skeffington, Arthur
Craddock, George (Bradford, S.)	Key, Rt. Hon. C. W.	Slater, Mrs. Harriet (Stoke, N.)
Cronin, John	King, Dr. Horace	Slater, Joseph (Sedgefield)
Crosland, Anthony	Lawson, George	Small, William
Darling, George	Lee, Frederick (Newton)	Smith, Ellis (Stoke, S.)
Davies, Rt. Hn. Clement (Montgomery)	Lee, Miss Jennie (Cannock)	Sorensen, R. W.
Davies, Harold (Leek)	Loughlin, Charles	Soskice, Rt. Hon. Sir Frank
Davies Ifor (Gower)	Mabon, Dr. J. Dickson	Spriggs, Leslie
Davies, S. O. (Merthyr)	McCann, John	Steele, Thomas
Deer, George	MacColl, James	Stewart, Michael (Fulham)
Diamond, John	Mclnnes, James	Strachey, Rt. Hon. John
Dodds, Norman	McKay, John (Wallsend)	Strauss, Rt. Hn. G. R. (Vauxhall)
Donnelly, Desmond	Mackie, John (Enfield, East)	Swain, Thomas
Ede, Rt. Hon. C.	McLeavy, Frank	Symonds, J. B.
Edwards, Walter (Stepney)	MacPherson, Malcolm (Stirling)	Taylor, Bernard (Mansfield)
Evans, Albert	Manuel, A. C.	Thompson, Dr. Alan (Dunfermline)
Fernyhough, E.	Mapp, Charles	Thomson, G. M. (Dundee, E.)
Finch, Harold	Marsh, Richard	Thornton, Ernest
Fitch, Alan	Mason, Roy	Timmons, John
Fletcher, Eric	Mayhew, Christopher	Ungoed-Thomas, Sir Lynn
Foot, Dingle (Ipswich)	Mellish, R. J.	Wainwright, Edwin
Foot, Michael (Ebbw Vale)	Mendelson, J. J,	Warbey, William
Forman, J. C.	Millan, Bruce	Weitzman, David
Fraser, Thomas (Hamilton)	Milne, Edward	Wells, Percy (Faversham)
Gaitskell, Rt. Hon. Hugh	Mitchlson, G. R.	Whitlock, William
Galpern, Sir Myer	Monslow, Walter	Wilkins, W. A.
George, Lady Megan Lloyd (Crmrthn)	Moody, A. S.	Willey, Frederick
Ginsburg, David	Morris, John	Williams, LI. (Abertillery)
Gourlay, Harry	Mort, D. L.	Williams, W. R. (Openshaw)
Grey, Charles	Moyle, Arthur	Willis, E. C. (Edinburgh, E.)
Griffiths, Rt. Hon. James (Llanelly)	Neal, Harold	Winterbottom, R. E.
Griffiths, W. (Exchange)	Noel-Baker, Francis (Swindon)	Woodburn, Rt. Hon. A.
Grimond, Rt. Hon. J.	Noel-Baker, Rt.Hn.Philip (Derby, S.)	Woof, Robert
Gunter, Ray	Oliver, G. H.	Wyatt, Woodrow
Hall, Rt. Hn. Glenvil (Colne Valley)	Oram, A. E.	Yates, Victor (Ladywood)
Hamilton, William (West Fife)	Oswald, Thomas
Hannan, William	Padley, W. E.	TELLERS FOR THE NOES:
Hart, Mrs. Judith	Paget, R. T.	Mr. Wade and Mr. Thorpe.

The Deputy-Chairman (Sir Samuel Storey)

The next Amendment selected is that in the name of the right hon. Gentleman the Leader of the Opposition and other right hon. and hon. Gentlemen. It will be possible to discuss with it the Amendment in page 6, line 1, to leave out subsection (4), which stands in the name of the hon. Member

for Nelson and Colne (Mr. S. Silverman) but which has not been selected.

Mr. Diamond

I beg, to move, in page 6, line 2, to leave out "him" and to insert "the Crown".

The Amendment stands in the names of a number of my most senior right hon. Friends, and, unless they have been as deeply deceived as I may have been, the Amendment hardly needs arguing but only stating. It does not need arguing because there is no onus of proof on us. The onus is on the Government to substantiate subsection (4).

It appears to me that subsection (4) is a complete breach in the normal principles of law and justice. I am no lawyer. I am simply making a simple proposition. I am in favour of justice and against injustice. It is as simple as that. As the Clause stands, if any question arises as to whether the person is a Commonwealth citizen for whom the court could recommend deportation, …it shall lie on him"— the Commonwealth citizen— to prove that he is not such a citizen. The Amendment would place the onus on the Crown to prove that the person concerned was not a Commonwealth citizen or that he was a Commonwealth citizen capable of being deported on the recommendation of the court.

Having said that, it is hardly necessary to say much more about such a simple principle, which is so easily comprehended by all of us that one can almost hope that the learned Attorney-General will get up and accept it. The only reason that I can think of for his not accepting it is that it is beyond my memory to recall anything that he has ever accepted. However, I live in hope, as we all do on this side of the Committee, and we hope that the right hon. and learned Gentleman will accept the Amendment on this occasion.

The Minister of State said earlier that matters like this are left to the discretion of the court. But this subsection removes that discretion completely. As far as I can see, if the subsection were omitted it would probably have the same effect as that of the Amendment I am moving, namely, that the ordinary principle would apply and the Crown would have to demonstrate that the person concerned was subject not only to the penalty of his offence but to deportation in addition.

We are not concerned here with the deportation of aliens but with the deportation of Commonwealth citizens, some of whom may have been resident for three or four years in this country. An offence is committed and the question of deportation can then arise. I want to underline what my hon. Friend the Member for Islington, East (Mr. Fletcher) has pointed out—that now we are dealing with Part II of the Bill and, therefore, with permanent legislation, not with a temporary measure subject to review, however inadequate, in a period of time by the House of Commons. Once we pass Part II it will remain on the Statute Book for a long time.

I see no reason why we should depart from the normal principle. This power to deport arises in the case of an offence having been committed, but that offence has to be proved. The citizen will not have to prove that he has not committed the offence. The prosecution will have to prove that he did commit it. In other words, in the trial for the offence, the normal process of our law will apply. Justice will be seen to be taking place. Of course, it would be reasonable, in the circumstances of a case like that, to require a Commonwealth citizen to explain that he was a Commonwealth citizen of the kind which exempted him from the powers of the court to recommend deportation, but to require an explanation is a very different matter from putting upon him the onus of proof.

Recognising as I do that I am a layman in these matters and that I am surrounded on all sides by distinguished and eminent lawyers, I move the Amendment in the full and earnest hope that we have correctly understood subsection (4) as it stands. If that is so, then it is a grave breach of the principles of British law and should be removed.

Mr. S. Silverman

I agree with my hon. Friend the Member for Gloucester (Mr. Diamond) that the proposition he is advancing is, or at least ought to be, self-evident. But it evidently is not. The contrary is in the Bill, and there has been no indication so far of any change of mind or heart by the Government. I am at a loss to know why. The proposition contained in subection (4) is in conflict with the whole spirit of our penal law. It has been put in deliberately so that in a case where the Government are applying a sanction to one class of British subject which they do not claim to apply, and should not apply, to another class, it will be incumbent upon the man concerned to prove to the satisfaction of the court that he is not a person to whom the sanction can apply.

This is not a matter of the Home Secertary's discretion, although I know that there is a discretion in the background. The Home Secretary is not bound to accept the recommendation of the court for deportation. The position is a little better, as it should be, than it is in the case of aliens. In their case, the Home Secretary has a discretion about deportation, but it is, subject to an advisory opinion by Bow Street, an absolute discretion. There is no prior condition which has to be fulfilled before he has the right to make an order of deportation. That is not the case with Commonwealth citizens.

7.0 p.m.

The Bill specifically provides that the Home Secretary has no power to deport unless and until an offence has been committed, unless and until a man has been convicted of that offence and unless and until a court of law has decided that there shall be this recommendation to the Home Secretary to add this penalty to any other. It is therefore part of the matter which the court has to try and is not something extraneous or something which happens as an administrative consequence of what the court has to try.

There is no more reason why the onus of proof, which lies on the prosecution to prove every other matter involved in the question which the court has to try, should not lie on the prosecution in this aspect of the matter as well. Presumably, the court will not make a recommendation for deportation on its own initiative. It will have to be invited by the prosecution to do it and presumably, therefore, the prosecution will know all the facts as to whether the man is subject to this part of the Bill and whether he is or is not a Commonwealth citizen within the meaning of this Clause. Why should the prosecution be excused from discharging the onus of proof on that issue when it lies upon it in every other part of the case?

It is possible to explain this total reversal of a basic principle of the British criminal law only by supposing that the whole scheme has not been considered at all, or has been considered in a spirit of utter malice and vindictiveness. If there is a question as to whether the man before the court is a man who comes under this part of the Bill, the onus of proving that he is such a person ought to lie upon those who assert it, as it does in respect of every other part of the case. To make an exemption on so fundamental a principle in a matter which may be fundamental to the whole future of the man concerned is something which most people, even the Attorney-General in his calmer and more professional moments, would find utterly and completely incomprehensible.

I hope that we are being unjust to the right hon. and learned Gentleman. I do not like hoping that one is being unjust to him, but on this occasion I hope that we are. I hope that he is waiting patiently through all our indictments to say, "What is the excitement about? I always intended to accept this Amendment". Somehow, I do not think that that will happen. He would have been only too anxious to say it earlier if he was to say it at all.

The Committee is not bound to support the Government on every part of the Bill and I hope that hon. Members will make up their own minds, independently of party considerations, or loyalities, or anything of that kind. There are some hon. Members who, to their credit, have taken the responsibility of voting against their own Front Bench more than once on various questions.

Mr. A. R. Wise (Rugby)

And who have been thrown out for it.

Mr. Silverman

I hope that they will do it again. There is no part of the Bill which would justify them more completely in such opposition to their nominal leaders than that which we are now discussing.

The Attorney-General

I listened with interest to the hon. Member for Gloucester (Mr. Diamond) and to the hon. Member for Nelson and Colne (Mr. S. Silverman), I must admit, with some degree of astonishment when I heard that this subsection was a complete breach of our normal principles of law—the words of the hon. Member for Gloucester—and when the hon. Member for Nelson and Colne said that it was in conflict with the whole spirit of our penal law. I shall seek to establish, I hope to the satisfaction of the Committee, that that is not the case.

However, I want, first, to point out that the effect of the Amendment of the hon. Member for Nelson and Colne would be that there would be no guidance in the Bill to show on whom the burden of proof would lie.

Mr. S. Silverman

It would not be needed.

The Attorney-General

I am inclined to agree with the hon. Member, and I think that, if there were no specific reference, under ordinary law it would still lie on the defence. The effect of the Amendment of the Leader of the Opposition is to put the burden clearly on the Crown.

No recommendation for deportation can be made by any court without notice first being served on the accused person under Clause 8. That notice must tell him in respect of what classes of person a recommendation can be made and must give him notice that if he wishes to assert that he is not a Commonwealth citizen to whom this part of the Bill applies it will be for him to prove it.

Mr. Diamond

Within three days.

The Attorney-General

It is not less than three days and in many cases it will be more, and if he wants an adjournment I have no doubt that he would be able to get it. I appreciate that that is not the subject of the challenge, but I thought it right to draw attention to the fact that notice is required to be given as a preliminary step in any proceedings for deportation.

It will be recognised that in every case the facts in relation to an application of this kind will be peculiarly within the knowledge of the accused. He will know whether he is a Commonwealth citizen and whether he comes within one of the three exempted categories.

Mr. S. Silverman

Will not the prosecution know?

The Attorney-General

He will know that positively.

Mr. Diamond

That is reasonable.

The Attorney-General

I am glad to hear the hon. Member for Gloucester say that it is reasonable to require an explanation from him.

That being the position, I am surprised by the statement of the hon. Member for Nelson and Colne that the subsection makes a radical departure from the usual rule. Before coming to the authorities on what is the usual rule in these matters, I want to say that if the burden of proof lay on the Crown it would be for the Crown to prove a whole series of negative averments. If we had to prove in each case that the accused was not born in the United Kingdom, that his father was not born in the United Kingdom, that neither of his parents was ordinarily resident in the United Kingdom at the time of his birth, the prosecution would have to prove each of the three categories.

If before making these statements the hon. Member for Nelson and Colne had turned to Archbold's Criminal Pleading, Evidence and Practice, page 375 of the 34th edition, he would have seen this said about negative averments: The present rule upon the subject appears to be, that in cases where the subject of such averment relates to the prisoner personally, or is peculiarly within his knowledge, the negative is not to be proved by the prosecutor, but, on the contrary, the affirmative must be proved by the prisoner, as a matter of defence… That is dealing with ordinary criminal prosecutions where there is a negative averment. That is why I said that if the Amendment of the hon. Member for Nelson and Colne were accepted, and that statement of the law is right, the burden of proof would not be altered.

The House of Commons has on more than one occasion acted on that principle. I quote two recent statutes, and I am sure that there are others. Section 81 of the Magistrates' Courts Act, 1952, says: Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him; and this not withstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification. Section 47 of the Sexual Offences Act, 1956, says: Where in any of the foregoing sections the description of an offence is expressed to be subject to exemptions mentioned in the section, proof of the exception is to lie on the person relying on it. Subsection (2) clearly deals with exceptions, and when the hon. Member for Nelson and Colne talked about this proposal being completely in conflict with the whole spirit of our penal law he must, I fear, have ignored, if he had not forgotten, the fact that under our ordinary criminal law when one is proving an offence where there is an exception the onus, as I have shown from the passage in Archbold, rests on the defence.

If that is the principle with regard to the proof of ordinary criminal offences, if that is the principle recognised in this House in the passing of the Magistrates' Courts Act and the Sexual Offences Act——

Sir Lynn Ungoed-Thomas (Leicester, North-East)

What about the deportation of aliens under the Aliens Order?

The Attorney-General

I have not that Order with me, but I do not think that that alters the principle. I will refresh my memory on it. I am dealing with the general principle which I think is well established with regard to the burden of proof.

Mr. S. Silverman

Do not pump it up too much.

The Attorney-General

I do not want to pump it up too much, or hit the hon. Gentleman too hard, because I know that if I do he will interrupt me.

The hon. Member for Nelson and Colne, as he always does, put his case forcefully, but in this instance I submit that his case is unfounded, because, so far from being a departure from the general rule, it is an application of the general rule to these particular circumstances. Notice will not be given to any person who is accused that an application will be made for a recommendation for deportation unless there is ground for believing that he is a person to whom the Act applies. But it is one thing for the Crown to have grounds for believing that and another for the Crown to discharge the heavy burden of proof that lies on it in proving any matter when that matter is so particularly and peculiarly within the accused's personal knowledge.

In every case, of course, the burden of proof on the Crown differs from the burden which rests on the defence—that is clearly established—and all that the defence would have to prove under this subsection to avoid the operation of this part of the Act would be the probability of what it is called on to prove, not absolute proof to the satisfaction of the court, which is what the prosecution would have to establish. All that the defence would have to do would be to establish the probability either that the person concerned was not a Commonwealth citizen at all, or that he was within one of the excepted classes.

7.15 p.m.

To sum up this part of my submission to the Committee, I do not think that there is any departure from our normal principles. I think that this is in accordance with them, and I should like the Committee to consider what would be the position if the burden rested on the Crown to prove this series of negatives in every case. I think that it would be an impossible burden, and it would mean that Part II of the Act would be incapable of operation.

I have risen now because I think it is right that the Committee should raise every time any proposal in a Bill which puts the onus on the defence and seek to have it justified. I think that the Committee and the House would be failing in their duty if they did not raise this question, but we have on many occasions recognised in our statutes that that is not an invariable rule, and with regard to exceptions such as this, the rule is as I have stated, and as I have cited from Archbold's Criminal Pleading, Evidence and Practice.

I hope I have satisfied the Committee, or at least some Members of it, that there is a strong case for keeping the Bill in its present form. I submit that it is in accordance with the usual rule and, with common sense, that the accused person who is given notice that an application will be made for his deportation should be required to establish the probability of facts peculiarly within his knowledge if he wishes to assert that Part II of the Act does not apply to him.

Mr. S. Silverman

I think that I must, if only out of deference to the right hon. and learned Gentleman's argument, offer him a word in reply. I should have thought, and I say this with extreme diffidence, that what the Attorney-General has said, so far from proving that my hon. Friend is wrong, has proved conclusively that he is right.

What did the Attorney-General say? He said that the basic principle of our law is that the onus of proving a negative should not lie on those who, as it were, assert the negative; that the principle is that the onus of proving a thing shall lie on him who asserts it, not on him who denies it, and that we must not put the onus on anybody of proving a negative.

Subsection (4) says: If any question arises whether a person is a Commonwealth citizen to whom this section applies, it shall lie on him to prove that he is not such a citizen. In other words, this subsection puts upon the defendant the burden of proving a negative, which is precisely what the right hon. and learned Gentleman was telling the Committee was wrong.

I agree with the Attorney-General that it is wrong. I agree that the onus of proof cannot be placed on the proving of a negative. It must lie on those who assert something; not on those who deny it. The Attorney-General knows—he drew our attention to it—that a notice has to be served on the defendant. A notice about what? A notice which asserts, among other things, that he is a person to whom this part of the Act applies. Why then should not the person serving the notice have to prove it? It is very difficult to understand.

Let me draw the Attorney-General's attention to one or two parallel cases under our criminal law. A man may make himself liable to a period of corrective training or to a period of detention. To be liable to it, he must have committed a certain number of a certain kind of offences within a certain period. As in this case, the prosecution has to serve a notice upon the defendant that it is doing that and the notice has to set out what the previous convictions are. It does not call upon the defendant to prove that the convictions never hap pened. The defendant may deny them. If he does, the onus of proving them lies upon the prosecution, as it ought to do.

Every word that the Attorney-General said established the proposition contended by my hon. Friend the Member for Gloucester (Mr. Diamond) in moving the Amendment, and I suggest in all humility that the Attorney-General has not given his mind to the matter in the way that he ought to have done.

The Attorney-General

I should like to say a word in answer to the hon. Member for Nelson and Colne (Mr. S. Silverman) and also to answer the question put by the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) about the Aliens Act. The provision of the Aliens Restriction Act, 1914, is very similar to this and it runs as follows: If any question arises on any proceedings under any such Order, or with reference to anything done or proposed to be done under any such Order, whether any person is an alien or not, or is an alien of a particular class or not, the onus of proving that that person is not an alien, or, as the case may be, is not an alien of that class, shall lie upon that person. That is in line with the provision in this case.

The hon. and learned Member for Nelson and Colne skilfully sought to suggest that because of the form of words in subsection (4), particularly it shall lie on him to prove that he is not such a citizen", it would be for him to prove a negative. But what has he to prove? For this, one is taken back to subsection (2). To take the most simple example, he has to prove that he was a person born in the United Kingdom". That is a fact which would be within his knowledge. He would have to prove one of the positive matters within paragraphs (a), (b) and (c) of subsection (2). If the burden was on the Crown, the Crown would have to prove the negative of each of those propositions. That is why I put it in that way.

Sir L. Ungoed-Thomas

I followed the Attorney-General's reasoning, but I am a little puzzled by the way in which he presented the case in his first speech. I followed the argument on subsection (2) about negative averments. The whole of the right hon. and learned Gentleman's case, as I understand it, is based on the existence of the negative averments in subsection (2). That leaves the positive averment in subsection (1). Therefore, the position in subsection (1) is that the Crown has to prove that a person is a Commonwealth citizen and then, under subsection (2), by reason of the exceptions and the negative averments, the accused person—the potential deportee—has to establish that he is the kind of Commonwealth citizen who is excepted by subsection (2). That leaves on the Crown the burden of the positive averment under subsection (1).

In subsection (4), however, one sees that If any question arises whether a person is a Commonwealth citizen to whom this section applies, it shall lie on him to prove that he is not such a citizen. That would indicate that the burden of proof is upon him, not only in respect of the negative averments under subsection (2), on which the Attorney-General based his whole case, but also in respect of the positive averment under subsection (1) that he is a Commonwealth citizen at all. Therefore, the Attorney-General's reasoning in his first speech completely failed to meet the point made by my hon. Friend.

I accept the Attorney-General's argument on negative averments referable to subsection (2); but for the very reason that I accept those arguments with regard to subsection (2), they are utterly contrary to accepting that the burden of proof should be on the potential deportee with regard to his being a Commonwealth citizen at all. That is exactly what subsection (4) does.

Therefore, I hope that if the Attorney-General does not accept the precise Amendment brought forward by my hon. Friend, he will at least, on his own reasoning, say that he will introduce an Amendment to limit the burden of proof on the potential deportee to the establishment of the facts within subsection (2) but not the facts within subsection (1).

Mr. Chapman

I hesitate to step in when all the lawyers have been having a good time——

Sir L. Ungoed-Thomas

Then do not do so.

Mr. Chapman

—but perhaps we might bring in a little common sense when they sit down. For the first time on the Bill, I agree with the Attorney-General. As I see it, the Amendment does not do what my hon. Friends intended. They wanted to say in the Amendment that if there was doubt whether a person was a Commonwealth citizen liable to be deported the Crown must prove that he is a Commonwealth citizen liable to be deported. That is what my hon. Friends want to establish by their Amendment, but the Amendment does not do that. It would make the Clause state that it shall lie on the Crown to prove that he is not such a citizen who is liable to be deported.

The Amendment not only should alter "him" to "the Crown", but should have altered the subsection to a positive statement. The last words of the subsection should have been made to read that it shall lie on the Crown to prove that he is a Commonwealth citizen". Therefore, unfortunately, the Amendment does not do what my hon. Friends intend. That is why we have had all these long arguments about negative averments, which I do not understand, which could have been demolished from the beginning by pointing out that the Amendment does not do what it is intended to do.

Nevertheless, I return to the point that it would not have been a bad thing to have an Amendment of the kind intended by my hon. Friends. It would have been a good thing if we could have had a gesture of generosity in this legislation to say that, as these are difficult matters, when doubts arise as to whether a person is liable to be deported there should be onus on the Crown to prove that he is liable to be deported.

Sir L. Ungoed-Thomas

Will my hon. Friend give way?

Mr. Chapman

May I finish? I am trying to come halfway towards what my hon. and learned Friend was saying. The Amendment is wrong, but I am trying to agree with its spirit.

It would have been a good thing if we could have had in this legislation an indication that in cases like this there would be a burden on the Crown to prove that the person is liable to deportation under the Clause. I say this because a lot of the people who may be involved may well be poor people, who would not go through to the higher parts of our system of justice where they would get skilled legal advice, and it may be difficult for them in the lower ranks of the judicial system to prove their position if they are partly illiterate or, at least, not well educated. I would like to see a gesture of generosity in that respect in this legislation.

The Attorney-General

The Committee is grateful for what one might call the light shown by the layman on our discussion, particularly when the hon. Member for Birmingham, Northfield (Mr. Chapman) took the technical point concerning the drafting of the Amendment, which appeared in the name of the Leader of the Opposition. I had not sought to rely on that technicality, although it had not escaped my notice, but had endeavoured to meet the spirit of the Amendment moved by the hon. Member for Gloucester (Mr. Diamond). I have endeavoured to cover the whole field shortly because of the work that lies before us.

The hon. and learned Member for Leicestershire, North-East (Sir L. Ungoed-Thomas) has raised a point which I do not think was raised in the moving or seconding of the Amendment. Most of the attention then was focussed on subsection (2). The hon. and learned Member was quite right in saying that I devoted most of my reply to subsection (2). Technically, he has force in his argument that subsection (1) does not contain a negative averment. In my speech, however, I drew attention to the emphasis which is properly laid on matters which are peculiarly personal to and within the knowledge of the person concerned.

7.30 p.m.

In answer to the hon. Member for Northfield, I would say that however illiterate, however uneducated or however poor people may be, they usually have no doubt at all as to whether they are British, Canadian or anything else of that kind. I can assure the hon. Member and the Committee of one thing, and it is this. With legal aid so readily available in these days, if notice that deportation is to be recommended is served upon someone I do not doubt that every inquiry will be made to find out whether there it any support for, say, his assertion that he comes within one of the exceptions, or that he is not a Commonwealth citizen at all.

I do not think that this provision will work at all in the way of hardship. Nobody, and no court, wants to make a recommendation to deport anyone unless it is absolutely certain that it is the right course to follow. The precedents of the Aliens Act has, as I have pointed out, been followed out in this case. I have not heard any complaints about how that Act has worked, and I do not believe that when this Measure is on the Statute Book we shall find any complaint about how its machinery operates.

Mr. Diamond

I know that I do not have to apologise to the Committee for raising what seemed to many of us to be a principle of simple justice. Indeed, the Attorney-General was good enough to say that he thought it right that whenever a matter like this occurred in legislation it should be raised. I said before the right hon. and learned Gentleman spoke that I recognised immediately the need for explanation; not being a lawyer, I took it that there was a considerable difference between making an explanation and having the onus of proof resting on one with regard to an allegation that one was not covered by the Clause.

We have heard the learned Attorney-General's explanation. On him rests the supreme responsibility of being satisfied that this provision is in direct conformity with our normal principles of seeing that justice is done. He is satisfied about that, and it is his responsibility to advise the Committee that this is so. In that sense, I accept his advice and beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, That the Clause stand part of the Bill.

Mr. Chapman

I have spoken only very briefly in my various interventions and I propose to continue that practice, but it is important that some of us who have been heavily involved in the Bill should say one or two things on this main matter of deportation. It is a fact, and I do not complain about it, that there is considerable support in the country for the Bill. In opposing it, we do not deny that, but we do not think that the popularity of a Measure is necessarily an indicator of its justice. It is on those grounds, when we judge the Bill's rightness in principle, that we have to oppose it.

At the same time, some of us who have been heavily criticised—and we do not grumble about that—want to make it clear that we have no objection to this part of the Bill. It is right, if the procedure is proper, that people who commit crimes as defined here, and the people who are defined here, should be deported, and I am glad to note, that, amongst others, the Prime Minister of Jamaica has said that Commonwealth people accept that.

To that extent, this part of the Bill is satisfactory, but there are one or two other things that ought to be said about its effects. I hope that something can be done, particularly now that this Measure is being passed, to make it clear to our people, or to get people to make it clear, that there is no reason to believe that there is a huge crime wave amongst coloured people in the United Kingdom. It is really monstrous to keep saying that there are thousands of coloured people who ought to be deported because they are continually indulging in crime. That is not true. It is a gross slander of many of them, but it is continually repeated.

There was a letter in The Times of 25th November about this aspect of the Bill. It was written, I think, by a Birmingham stipendiary magistrate in these terms, "While you are all talking about this business, we are busy trying cases in the court. My colleague and I this morning tried 47 cases, and this was the score: West Indians—none; Wales—2; Scotland—three; England—10; Ireland—32." I do not draw any conclusions from that, but I repeat that it is monstrous to keep on visiting the sins of a few of them on the 300,000 West Indians living here. People should stop saying that thousands of coloured people come here to commit crime, and should be deported.

I have another piece of evidence, in the form of a report by the Birmingham Co-ordinating Committee for Coloured People, which states: On the contrary, one probation officer, working an area of the city where many immigrants live, finds that the 70 cases on his list are West Indian, 2; African, 1; Irish, 17; ordinary Birmingham citizens, 50. Let us keep this matter in proportion. I do not say that the absolute opposite extreme is the case, and that none of these people indulges in crime and ought not to be deported, but let us keep this in balance, and stop pretending there are so many coloured people indulging in criminal activities.

I am reminded that in the northern States of America, it is now general newspaper practice never to mention the colour of a man about whom a report is written. If a man is an American citizen his name is given as, say, "John Brown", and the code amongst newspapers is not to say that he is a negro citizen of the United States.

I wish that we could get that practice accepted here. What do we find in the Birmingham newspapers, for instance? We get things like, "Jamaican caught with knife in hand"; "Jamaican attacks another". They do not speak of an Irishman or an Englishman doing that. The fact is that the minority of cases involving coloured people is exaggerated in the minds of the public because colour is screamed at them in the headlines. Amongst all the other criminal activity going on, people remember that case because it was headlined with colour in it.

I hope that when the Bill is enacted, and when Part II comes into practice, the Home Secretary will support a campaign to get the newspapers to stop labelling with their colour people who are British citizens and who are as equal to me as any white man is equal to me inside this country.

Mr. Leonard Cleaver (Birmingham, Yardley)

I entirely agree that we do not want to prejudice the coloured people, or put out wrong information about them. If, during the whole of 1961, immigrants had been liable to deportation as aliens, just over 220 cases would have had to be considered in Birmingham. To make the other point, the figure for Irishmen was just over 530. I think that we should be clear about that.

Mr. R. A. Butler

I think that it is only right that I should, having heard the remarks of hon. Members, say a few words on this part of the Bill, which is rather technical. This is a most important Clause. It introduces, for the first time, the power to deport Commonwealth citizens from this country. It is a new power and we considered it very carefully before putting it in the Bill.

We think that there is a strong case for having this power and I am glad that the hon. Gentleman the Member for Birmingham, Northfield (Mr. Chapman), the right hon. Gentleman the Member for Orkney and Shetland (Mr. Grimond) and other hon. Members have acknowledged that, subject to the criticism they made of the Clause, they consider that taking the power is legitimate. It only remains for me to say that the power will be exercised with the utmost care and reticence.

The hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman), as usual, spotted the difference between this and the power for aliens. The Clause makes it clear that the power can be operated only on the recommendation of a court following conviction of an offence which is punishable by imprisonment. It is, therefore, carefully hedged about and much more carefully phrased than in the case of the aliens legislation. I can give an undertaking to the Committee that there will not be a great number of cases involved. There are not a large number of alien deportation cases. Deportation will be carefully considered and carried out under the Secretary of State's personal signature. It can only be done on the recommendation of a court subject to some of the observations which were made by the Attorney-General in his intervention earlier on points of law.

On the question of retrospection, I listened with interest to the remarks that were made on the previous Amendment and I endorse what was said by the Under-Secretary. I think that there was something in the Bill, as drawn, which hon. Members considered undesirable—the question of the commission of an offence before the Act comes into force. We have decided to look at this before the Report stage to bring it more into line with other legislation which does not permit retrospection in this sphere. I hope that I have shown that we intend to interpret the Clause in as reasonable a manner as we can.

7.45 p.m.

Mr. Ede

I support the line taken by my hon. Friend the Member for Birmingham, Northfield (Mr. Chapman), because in one case during my Home Secretaryship, a strike was organised by the Longshoreman's Union in Canada, a branch of a union which is really domiciled in the United States. Some Canadians came here and organised a strike in the London docks and I could not deal with any of them. Then, for some reason or other, the United States branch of the union did not think that the Canadians were prosecuting the strike vigorously enough and they sent two American officers of the union over. They were deported on the day they landed. [HON. MEMBERS: "Oh."] Yes, there was no nonsense when I was Secretary of State. There was no being subservient to the United States.

I regret that the Home Secretary considers the Bill to be necessary, but I will not go over all the arguments against it again. When people are our guests, however, and they abuse the position in the kind of way I have indicated—the Canadians in question—the Home Secretary should have the power to treat them as we would treat disorderly guests in our own home. He should have the power to say that if they wish to conduct themselves in such a manner they should do so in the place where they were brought up.

I understand that under the Clause as now drawn the most distinguished Canadian in this country, who does so much to control opinion here, is not liable to deportation. In any case, when I listened to the Home Secretary I thought that whereas a conjurer relies on the principle that the quickness of the hand will deceive the eye, the right hon. Gentleman considers that the quickness of the tongue will deceive the ear.

Question put and agreed to.

Clause ordered to stand part of the Bill.