§ 3.30 p.m.
§ The Secretary of State for the Home Department (Mr. Reginald Maudling)
I beg to move Amendment No. 3, in page 2, line 14, leave out from 'has' to 'that' in line 15.
§ Mr. Speaker
I think it will be for the convenience of the House to discuss with this Amendment Government Amendments Nos. 4, 6 and 8; Amendment No. 108, in page 2, line 26, leave out from 'above' to end of line 29; Government Amendment No. 10; and Amendment No. 71, in page 28, line 45, at end insert:'child' in relation to a person of illegitimate birth means, where the Secretary of State certifies that he is satisfied of such relationship, the child of his mother and of his putative father and 'parent', 'grandchild' and 'grandparent' shall be construed accordingly.
§ Mr. Maudling
The purpose of the group of Amendments standing in my name is to fulfil certain undertaking I gave in Committee. The effect of the Amendments will be threefold, referring to the circumstance where patriality is acquired by descent.
The first point is to provide that, where patriality is acquired by descent, it will be so only where the parent or grandparent concerned at the time of the birth or adoption of the claimant held citizenship of the United Kingdom and Colonies. The second and ancillary point is that, where a child is born after the death of his father, it shall suffice for the purposes of partiality that the father was a citizen of the United Kingdom and Colonies at death. The third point is that patriality shall descend to or through an illegitimate child from his mother but not from his father.
These were matters that arose in Committee. My right hon. Friend the Member 446 for Wolverhampton, South-West (Mr. Powell) asked whether it was right that patriality should descend from a parent who had renounced or lost his United Kingdom citizenship. I agree with my right hon. Friend to a considerable extent, but not to the full extent. If before the birth of the child citizenship had been renounced, clearly patriality should not lie. If citizenship was lost after the birth of the child, it would seem wrong retrospectively to take away from the child citizenship which it had acquired at the time of its birth.
Therefore, the test of these Amendments as to acquiring patriality by descent is the holding of United Kingdom citizenship by the parent at the time of the birth of the child.
The third point was as regards illegitimate children. The Bill as originally drafted provided that the rights of patriality should descend only through legitimate descent which, on the face of it, was a reasonable provision, because where there is a legal right it should probably be derived from some legal relationship.
I was persuaded by the arguments in Committee that an Amendment should be made. Therefore, we are providing that patriality can derive in the case of an illegitimate child from the mother. I do not think that it is practicable to extend this to the father. In sheer practical terms, as was said in Committee, it is perfectly simple to prove the birth from a mother because of the birth certificate. However, in the case of the father of an illegitimate child it would be exceedingly difficult to do this in practice; and as in the vast majority of cases custody of an illegitimate child rests with the mother I believe that what we are doing will meet this problem.
I was grateful for the advice of the Committee in these matters. I hope the House will accept the Amendments which have been put forward in that spirit.
§ Mr. Peter Archer (Rowley Regis and Tipton)
Our real complaint about these Amendments is with the situation which has given rise to them. That may be small comfort to the Secretary of State, as it is a situation of his own making.
Traditionally, immigration law when it is at its most rational should take 447 account of two categories—those who are citizens or nationals—that is, those who belong to the community, those who are entitled to the protection of the Government, those who owe allegiance, on the one hand, and, on the other hand, aliens.
The Bill seeks to make a different distinction between those who, apparently on quite different grounds, are thought to be entitled to call the United Kingdom their home and those who are not. So the Government have had to introduce this odious concept of patriality. Then there are these hair-splitting distinctions which these Amendments are about.
Why is not the right to live here co-terminus with citizenship? The answer presumably lies in our history. As I said in Committee, our grandfathers asserted a right to reside in other people's countries without producing work permits or certificates of patriality; and in consequence the history of those countries and their present-day situation are very much intertwined with our own.
That is why the British Nationality Act, 1948, had to define British nationality as something other than United Kingdom citizenship. What is required at this stage, as my hon. Friend the Member for Leeds, South (Mr. Merlyn Rees) said in Committee, is a Bill to sort out the resulting anomalies in our citizenship law. Then there would be no need for the subtleties and perplexities involved in the concept of patriality and no need for the kind of hair-splitting entailed in the Amendments.
However, this is how the Government have chosen to tackle the problem, so we must examine the Amendments which are proposed. Granted the scheme of this Bill, we have no quarrel with Amendments Nos. 3, 4, 6 and 10. We are much less happy about Amendment No. 8. The necessity for this Amendment arises, as the Secretary of State has said, from a discussion in Committee when one hon. Member on the Government side moved to leave out illegitimate children from those enjoying the benefits of patriality.
I do not need to repeat the details of that dismal debate, but the Committee was shattered to hear that in the Government's view the Amendment was unnecessary because already the word "children" in the Bill excluded illegitimate children. So the misfortune with which they were 448 already visited was to deprive them, over and above all else, of the opportunity of asserting patriality.
My hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) and myself took leave to doubt whether the meaning was so unambiguous as the Government asserted. We went on to say that, if it was, the sooner the Bill was amended the better. We sought to introduce an appropriate Amendment in Committee to Clause 33, the definition section. In that debate the Under-Secretary undertook to examine whether this Amendment might be made. As the Secretary of State has just told the House, Amendment No. 8 results from that consideration.
We are grateful for the concession so far as it goes, but, as the Home Secretary has just said, it still seeks to restrict the relationship of an illegitimate child to its mother. We still wonder why an illegitimate child is not related to its father. This is the purpose of our Amendment No. 71. It was said in Committee, as a reason for not extending the concept to include a relationship with the father, that in many countries from where immigrants come there is not any readily available documentation so that it is not easy to prove this kind of relationship.
In so far as that is the problem, one would have thought that the kind of relationship which it would be difficult to establish would be that of marriage. So this would appear to be a reason, if it is right, for not distinguishing between legitimate and illegitimate children.
We do not see it as a problem at all, because the burden of proving patriality is upon the applicant. If he fails to prove it, no one complains. That he will find it difficult to prove it seems to me a poor reason to deprive him of the prospect of proving it at all, to say that one will not even listen to him when he seeks to prove it.
The other argument put forward in Committee was that an applicant is more likely to have an upbringing and cultural affinity with his mother's people than with his father's. I am not sure that that is always true, but, if it is, it must apply equally forcefully to a legitimate child. The distinction on which would be entailed here is not between children whose parents are married and 449 those whose parents are not but between children whose parents live together and those whose parents do not. We find that the reasons which have been asserted for this odious distinction are completely unconvincing when we give them a moment's thought.
The whole law has moved towards a recognition of real relationships in the course of this century, away from persecution of the innocent and towards compassion. We are left wondering whether there is any reason why it is necessary to be less compassionate in the Bill.
It may be that at the end of the debate the Opposition will not divide the House on the matter. The Government have made a move towards what we asked, and we are duly grateful. It is half a loaf. But it seems a pity to arouse so much disappointment and so many misunderstandings in the future for the sake of the other half.
§ Mr. J. Enoch Powell (Wolverhampton, South-West)
The Clause, as it will be amended if the House accepts the Amendments of my right hon. Friend the Home Secretary, is a considerable improvement on the Clause as it first met the eyes of the House on First Reading. This is partly attributable to the activities of the Standing Committee, but I think it right to recognise that the response of my right hon. Friend the Home Secretary to a number of points put to him in Committee has also contributed.
On the two points with which this group of Amendments deals, my right hon. Friend, although his decision is in the nature of a compromise, has probably hit off the best compromise available. He recognises—and I am obliged to him for doing so—that it was unreasonable that the citizenship of the parent at any time, irrespective of what happened after that time, should determine the patriality of the child and in some cases of the grandchild. He has probably made the right compromise by saying that it should be the nationality or status at the time of the relevant birth.
Of course, we can envisage circumstances in which the parent's decision to change his nationality in effect carries 450 with it the nationality of the child, but if we are to have general law—and we must have—then I do not think that it would be proper for the Secretary of State to be in the position of looking into individual cases. I therefore accept my right hon. Friend's definition of the relevant time as the best available.
I think that the same applies to my right hon. Friend's response to the debate in Committee upon the question of illegitimate descent. This has been emphasised by the Amendment which the Opposition have tabled to which the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) has just referred. If we were to go further than my right hon. Friend has gone, we should bring in a discretion in the matter of paternity which would have to be exercised by the Secretary of State in every individual case. I do not think that it would be regarded as appropriate that within the ambit of an immigration or citizenship Act that jurisdiction should devolve on the Home Secretary.
My hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight), owing to duties elsewhere, is not here today. We were indebted to her in Committee for ensuring that the whole question of legitimacy and illegitimacy in this context was ventilated. I cannot speak for my hon. Friend, but I believe that my right hon. Friend has met the general feeling of the Committee up to the point of practicability, and that the essential compromise which his Amendments offer is the right one.
I have no intention of raising again the issue of immigration law versus citizenship law, which has been necessarily so persistent a feature of our debates, and which was touched upon by the hon. and learned Gentleman. Until we have a citizenship of the United Kingdom, which this country has not hitherto known but with which sooner or later we must provide ourselves, we shall be driven to the relatively unsatisfactory expedients embodied in the Clause. But I do not think that that matter of principle can be pursued further upon these Amendments. I welcome them, such as they are.
§ Amendment agreed to.451
Further Amendment made: No. 4, in page 2, line 17, at end insert:
(b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either—
§ 3.45 p.m.
§ Mr. S. C. Silkin (Dulwich)
I beg to move Amendment No. 5, in page 2, line 19, leave out from 'been' to second 'or' in line 21 and insert:'ordinarily resident in the United Kingdom and Islands for a continuous period of five years or more and is settled therein; ',
§ Mr. Speaker
I understand that it will be for the convenience of the House also to take Amendment No. 7, in page 2, line 25, at end insert:'; or(d) she has at any time been ordinarily resident in the United Kingdom and Islands for a continuous period of five years or more and is or during any part of such period has been the wife of a person having the right of abode in the United Kingdom'.and Amendment No. 105, in page 2, line 22, leave out 'a Commonwealth citizen' and insert:'not a citizen of the United Kingdom and Colonies'.
§ Mr. Silkin
Amendments Nos. 5 and 7, tabled by my right hon. and hon. Friends and myself, are intended to broaden and liberalise the rights of people admitted to this country in future to come and go as they please. Under the existing legislation, a Commonwealth citizen, once here, has, broadly speaking, the right to stay. That is the general position, subject to qualifications. For those who are already here or will be here in July of this year, the Bill recognises that vested right, and, again subject to qualifications, does not remove it. But those entering in the future will have no such automatic right under the Bill. They will come here on probation, as it were, by virtue of the patriality concept. That concept is widely disliked, particularly amongst those who are concerned with community relations.
It is therefore our duty to scrutinise the rules with care and to ensure that 452 they are not more restrictive than is essential. We have excellent authority for that approach, because the Home Secretary at the very outset of his speech on Second Reading said:… as a matter of general principle I believe that the most important problem that any Government have to face in this whole context is the problem of community relations, and that the question of immigration policy in a sense is secondary or ancillary to that basic problem.We entirely agree with that. On Second Reading the House certainly accepted that general principle.
The Government used their majority, that dwindling asset, to force the concept of patriality through the House. But that concept has already been eroded in Committee and we note that the Government have felt constrained to accept that erosion, although in which direction they are looking over their shoulders we are not altogether sure.
We believe that the Bill will not ease but will exacerbate the problem of community relations. Our Amendments are intended not to cure—because we cannot do that—but to mitigate that exacerbation. When the Bill was published, I think that it was generally thought that Commonwealth citizens coming here in the future—
§ The Minister of State, Home Office (Mr. Richard Sharples)
I apologise for interrupting the hon. and learned Gentleman at this early stage, but I think that he is discussing Amendments Nos. 5 and 7. Amendment No. 5 refers to subsection (1)(b), concerning citizens of the United Kingdom and Colonies, not Commonwealth citizens.
§ Mr. Silkin
I am much obliged to the hon. Gentleman. I am aware of that. I shall be coming to the concept of the Amendments in a moment.
I was saying that it was generally believed that Commonwealth citizens coming here in the future would earn the right to come and go as they wished by five years' residence here. The right hon. Gentleman, no doubt unintentionally, encouraged that belief by an observation he made on Second Reading, when he said:For example, those who come here as Commonwealth citizens and who are free of conditions after five years are free to remain here unconditionally."—[OFFICIAL REPORT, 8th March, 1971; Vol. 813, c. 42–51.]453 Whatever the meaning of that may have been, what emerged in Committee was that what the Government intend is that five years' residence here will not be enough, that there must be five years' unconditional residence here before a person has the freedom to remain here unconditionally. It is a rather curious phraseology, as the Bill now stands, that the freedom to live in this country without let or hindrance, which is referred to in Clause 1, is not achieved by a citizen of the United Kingdom and Colonies under Clause 2(1)(b) which, as the Minis-ster of State rightly says, we are discussing, until for a continuous period of five years he has been ordinarily resident here without, to quote from subsection (2)(c)being subject … to any restriction on the period for which he may remain.We might have supposed that if a United Kingdom citizen was ordinarily resident here without being subject to any restrictions on the period of his remaining, that in itself would involve the freedom to live here without let or hindrance. But the tortuous concept of patriality has destroyed the meaning of words. The right hon. Gentleman, by later Amendments, proposes to alter some of those words, but as far as I can tell the effect remains the same from this point of view. Since we were told in Committee that the period of restriction will normally be the first four years of residence, and that only after that will the immigrant begin his unrestricted stay, a citizen of this country will normally not enjoy the right of freedom to live here and to come and go as he pleases until he has lived here not for five years, as we imagined, but for at least nine years.
That, we believe, is contrary to what was widely understood and to what the right hon. Gentleman at any rate appeared to have been saying—he may not have meant it—and is certainly unnecessarily restrictive. Five years should surely be ample time to enable us to decide whether one of our own fellow citizens who has joined us here has settled as one of us.
The effect of Amendment No. 5 would be that if after five years of ordinary residence here such a person is here free from restriction, that freedom from restriction would become a reality by the 454 grant to him of the right of abode. We do not accept that this new concept of patriality is a necessary or desirable erosion of citizenship. But, if we must have it, we have no doubt that our Amendment will mitigate its harshness and will enable those who come to settle among us to do so with an easier mind than the Bill permits.
Amendment No. 7 has a similar object concerning the rights of wives. Our nationality laws give the wives of citizens automatic citizenship. But under the Bill the wife of a patrial is not automatically a patrial. Her husband may have or acquire the right to remain here freely, and yet she may not. One of the consequences of patriality which arose again and again in Committee—and which my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer) graphically illustrated last night on new Clause No. 4, when he talked about the hijacker who is patrial and the hijacker who is not—is that a family may be hopelessly split between patriais and non-patrials with results which are not merely illogical but often cause hardship.
Amendment No. 7 does not deal with all those cases, but it seeks to deal with the case of a wife in as near as possible a way which assimilates her position in patriality with her position in citizenship. In other words, it seeks as nearly as reasonably practicable to place her on terms of equality with her husband. It stops short of giving the automatic patriality which would entirely follow the citizenship principle, because that would create fresh anomalies which we seek to avoid. For that reason, we have proposed a period of five years ordinary residence here as a qualification for the wife just as we have done in Amendment No. 5. Amendment No. 7 would go some way towards avoiding the splitting of families which the Prime Minister condemned in the General Election campaign and which we know from experience produces unhappiness, the breakdown of marriages and delinquency.
I commend both Amendments to the House.
§ Mr. Sharples
Amendment No. 5 refers to people covered by Clause 2(1)(b)—citizens of the United Kingdom and Colonies. The vast majority of them are already 455 covered, such as United Kingdom passport holders with work permits coming from East Africa who are admitted free of conditions from the outset and who, when they have been here for five years, acquire the right of patriality. The Commonwealth citizen who comes here with a work permit is able to count the first four years since he arrived and then the additional one year towards the acquisition of patriality. Therefore, the number of people covered by the Amendment is comparatively small. It consists, in the main, of citizens of the United Kingdom and Colonies with a work permit coming here from the dependent territories.
There is some force in the arguments of the hon. and learned Member for Dul-wich (Mr. S. C. Silkin). There are, however, considerable drafting difficulties and I should not like to under-estimate them. I cannot recommend the House to accept his Amendment. However, with my right hon. Friend the Home Secretary, I will give it careful consideration and, if possible, within the limitations of drafting, see whether we can meet the point when the Bill is considered in another place.
Amendment No. 7 also affects a very small number of people. In the great majority of cases, the husband of a woman married to a person having the right of abode will be a citizen of the United Kingdom and Colonies and in such circumstances, under Section 6(2) of the British Nationality Act, 1948, the wife has an absolute right to be registered as a citizen of the United Kingdom and Colonies and so to acquire patriality and a right of abode. She is able to exercise this right to be registered even if her marriage has been dissolved or has come to an end in some other way since the entitlement under Section 6(2) of the 1948 Act applies when a woman "has been married to a citizen of the United Kingdom and Colonies".
Accordingly, in the great majority of cases, Section 6(2), which is not to be amended by the Bill, already provides the solution aimed at by the Amendment. The only people affected who are not already provided for are the wives of men, being Commonwealth citizens, with a father or mother born in the United Kingdom, who acquire their patriality under Clause 2(1)(c). But even here the 456 number concerned is extremely few. If the husband's father was born in the United Kingdom, the husband will be a citizen of the United Kingdom and Colonies and so his wife will have an automatic right to register unless that citizenship was renounced.
Therefore, the only people affected are wives of men whose mothers, but not whose fathers, were born in the United Kingdom and who are not therefore citizens of the United Kingdom and Colonies unless and until they acquire citizenship by registration. The wife of such a person would not become a patrial notwithstanding the fact that her husband was a patrial. The effect of the Amendment would be to give a very limited class of people patriality.
I have carefully considered the point since the Amendment was tabled. Although the numbers concerned are very few, there is some force in the hon. and learned Gentleman's argument. I have had very little time to consider the matter, and I cannot give an absolute assurance, but, again with my right hon. Friend, I should like to consider it to see whether the point can be met by an Amendment introduced in another place. I shall do my best.
§ Mr. James Callaghan (Cardiff, South-East)
We are grateful to the Minister of State for the way in which he has answered the arguments of my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin). The House is indebted to my hon. and learned Friend's vigilance in discovering this extremely technical point. It is a small point, but it throws out the balance of the Bill. Given the principles upon which the Bill is based, it would have meant that a group of people would have been outside the normal range of those principles. In the light of what the Minister of State has said, I would not advise my hon. Friends to press the Amendment, although we intended to do so if we had had the rather dusty answer which we anticipated.
I should like the Minister to give an assurance, because I did not follow the last part of his reply. He read it very well, but it did not penetrate. If he can deal with the two groups covered by Amendments Nos. 5 and 7, will there be any small groups left outside the general principle upon which the Bill is based, 457 namely, that, once the conditions have been removed, the period during which the conditions were in operation will apply towards the five-year requirement for permanent settlement before registration can be secured? In other words, are there any other pockets of people which even the vigilance and eagle eye of my hon. and learned Friend has not been able to spot? If so, and if they are of the numbers indicated by the Minister, we would ask for his guidance. If there were any, we would hope that he would deal with them. If there were not, we would not need to pursue the point. I hope that I have given the Minister sufficient time to give an authoritative answer.
§ Mr. Sharples
May I say, with leave, that so far as I have been able to discover in the time I can give the right hon. Member for Cardiff, South-East (Mr. Callaghan) the assurance for which he asks. I think that we have covered all the points.
§ Mr. Raymond Gower (Barry)
I wish to comment on the second part of the reply of my hon. Friend the Minister of State. I am sure that he will not be deterred from trying to find the right form of words by the fact that so few women are involved. In cases like this, not merely hardship but anguish could result if a defect in drafting should prevent a solution from being discovered.
§ Mr. David Steel (Roxburgh, Selkirk and Peebles)
I had hoped that the Minister of State would refer to my Amendment No. 106. In Committee, I moved a similar Amendment which has been reworded in the hope of making it narrower and acceptable to the Government. Its object is to try to ensure the maintenance of family unity. If a woman has a right of abode here, her husband should have a similar right. Would the Minister comment on that point?
§ Mr. Sharples
If I may have leave to speak for the third time, I could not advise the House to accept Amendment No. 106. Its effect would be to give a right of abode to the husbands of women who are patrial. It would open the door to enormous abuse. The House has never accepted the principle that people should acquire patriality or rights of abode in this way. I must advise the House to reject the Amendment.
§ Mr. S. C. Silkin
In view of the undertaking of the Minister of State, and on the understanding that he will ensure that no small pockets of people are left outside the ambit of the concession which, I take it, he will arrange to be embodied in an Amendment in another place, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. David Steel
I beg to move Amendment No. 105, in page 2, line 22, leave out "a Commonwealth citizen" and insert:not a citizen of the United Kingdom and Colonies".
§ Mr. Speaker
It would be convenient if we discuss with this Amendment No. 123 leave out paragraph (c).
§ Mr. Steel
The question of the rights of entry and abode in this country through descent is a complicated one and I would remind the House of the present situation and how we arrive at it. A person has always held the right to enter this country and to stay here if his father was born here. In other words, the person abroad whose father had perhaps moved abroad, held dual citizenship—the citizenship of the country where he was born and also the citizenship of this country through his father.
In 1968 at the time of our difficulties with the Kenya-Asian population, when the Commonwealth Immigrants Bill was brought in by the previous Government, they proposed a limitation on the free entry of United Kingdom citizens to this country, limiting it to those whose father or grandfather had been born here as well as those who were born here. During the passage of the Bill through this House an Amendment was proposed by myself and the right hon. Gentleman the Member for Thirsk and Malton (Sir Robin Turton) to amend the Bill and give the right to enter this country by descent not only from the father and grandfather but also from the mother or grandmother. The Government of the day accepted that Amendment. Therefore in 1968, when the Measure became law the control for the entry of United Kingdom citizens exempted those who were the child or grandchild of a person born in this country. When their Bill was published the Government proposed to apply the 459 same principle—the "grandparental qualification"—to Commonwealth citizens and the Bill as originally drafted and approved on Second Reading contained the qualification in Clause 2(1)(c) that a Commonwealth citizen would have the right of abode in this country if he was the child or the grandchild of a person who had United Kingdom citizenship by birth in this country.
In Committee we removed the grand-parental qualification and the words "or grandchild" were deleted. So the Bill as reported to the House, and as it now stands, simply reads that a person may have a right of abode if he is a Commonwealth citizen and as the child of a person having had United Kingdom citizenship.
The Government have apparently accepted the verdict of the Committee and no attempt is to be made to reinstate the grandchild qualification. We have reached a situation where, if a person is a Commonwealth citizen, he may enter this country and have a right of abode here by virtue of tracing his descent from either his father or his mother. If he is not a Commonwealth citizen he can only enter this country and have a right of abode by virtue of his descent from his father. I do not know whether that is a distinction which the Government intend to maintain or whether it is a purely artificial one which has arisen as a result of the Amendment in Committee and been left in the Bill. The purpose of my Amendment is to find out whether this is so.
If the Government did not intend to maintain such a distinction—a marginal and illogical distinction—this Amendment provides the opportunity for the House to put it right simply by saying that if a person holds any other citizenship he may have the right of abode in this country by virtue of being the child of a United Kingdom citizen. If, on the other hand, the Government intend to maintain this distinction I invite them to consider whether they would be right to do so.
The Bill, if passed into law in its present form, would result in a ludicrous and unjustifiable anomaly. If a person's mother who had been born in this country and was a United Kingdom citizen chose to go and live in say Tanzania, then 460 under the Bill that person would have the right of abode. If on the other hand his mother, having been born here, decided to go and live in France—and this would apply even if we become associated with France through the Common Market—he would not qualify for a right of abode in this country. If he had been born in France, he would be an alien and not qualify under Clause 2(1)(c). The anomaly is further aggravated if we go back to the example I gave a moment ago. Supposing the mother had been born in Tanzania and political steps were taken by the Government of Tanzania to leave the Commonwealth and I mean this in no political sense, it is merely a random choice—
§ Mr. Steel
Yes, indeed. South Africa would be a case in point, if the position were antedated. If a country chose to leave the Commonwealth that person's right of abode would be removed not by any action of this Government, but by the action of a foreign Government if he was depending on his mother's connection with this country for entry. This is a nonsense and this House, having accepted in 1968 the principle of equality of descent between father and mother and grandfather and grandmother ought to clear up this matter and decide whether we accept that a person should be able to claim descent and right of abode through the descent from the mother or the father. That is the purpose of my Amendment and I hope that it will be acceptable to the Government.
§ 4.15 p.m.
§ Mr. Alexander W. Lyon
My Amendment No. 123, raises a much wider issue of patriality. I see from the observations this afternoon that there appears to be tacit agreement between both sides that the matter should not be raised at length on Report. I find this regrettable because it prevents those of us who were not in the Committee and could not get into the Second Reading debate from discussing the question.
§ Mr. Arthur Lewis (West Ham, North)
On a point of order, Mr. Speaker. Am I not right in saying that you decide what can and what cannot be said, whatever the Front Benches may or may not have decided and my hon. Friend can 461 raise what he wishes, subject to your ruling?
§ Mr. Callaghan
As we are getting a mountain of superstructure built on a very inadequate hypothesis, let me say that there is no tacit agreement, expressed, implied or in any other sense about any discussions.
§ Mr. Lyon
The position about patriality was raised by two Amendments which I tabled. One of these would have limited the right of abode completely to citizens of the United Kingdom and Colonies and that has not been called. This Amendment would cut out Clause 2(1)(c), namely, that part of the patrial section which allows right of abode to those who claim it by descent as Commonwealth citizens from their parents.
The descent from grandparents, as the hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) pointed out, was cut out in Committee. I have read the speech of the Home Secretary in Committee in the course of the discussion of a similar Amendment in which he indicated how, in his view, the scope of the subsection, particularly as amended, was very restricted. It seems to have been accepted by the rest of the Committee after his intervention that the right of a child to enter this country where the father was born in this country is in any case unlimited and always has been unlimited under any legislation. If the Clause as now amended widens the situation at all, it simply widens it to the children of mothers who were United Kingdom citizens. Therefore, this is a very limited extension.
I said I would try to keep my speech short and not widen the debate. What really concerned me was the effect of the 1968 Act, and, for reasons which are completely different from those of the right hon. Gentleman the Member for Wolverhampton, South - West (Mr. Powell), I took the view that if we were to introduce at this stage a new law of immigration it was appropriate that we should deal with it in terms of citizenship and not in terms of belonging and for that reason I wanted to create what would be a completely new type of 462 citizenship restricted only to citizens of the United Kingdom and Colonies.
I wanted to do so out of compassion for both the present Home Secretary and my right hon. Friend the former Home Secretary, becuse no one in the discussions in the Committee, so far as I can see, raised the question of what will happen if the case pending before the European Commission on Human Rights goes against this country, and whether, if the matter which has in that case been raised, namely, whether the 1968 Act violates the Convention on Human Rights and is, therefore, illegal under the Convention, that will mean that there will have to be an amendment of this legislation in order to repeal the 1968 Act. If that is so, clearly it is a work of supererogation to pass this legislation in its present form, and there will have to be wider legislation to grant right of abode to all citizens of the United Kingdom and Colonies with passports. For that reason, therefore, the widening would also include this extension which is contained in Clause 2(1)(c) even if it is as limited as the Home Secretary has suggested. It is for that reason that I raise this matter now in order that we can have a statement from the Government about what is their attitude towards this case pending before the Commission.
If I am right, the application means that this legislation we are proposing is a continuation of the violation of the Convention which was perpetrated by the 1968 Act, and if therefore that has to be amended, we shall have to go back to square one in any case, but we shall have to go back to square one having also widened the right of certain Commonwealth citizens by this Clause 2(1)(c). They would then have rights of entry which could not be taken away, because that would be a violation of the European Convention. It seems to me that we are in real danger of perpetrating another situation such as occurred in relation to the 1948 Act. We are going to give to certain people rights which, by reason of the European Convention, we shall not be able to take away, and then we shall And that the 1968 Act has to be repealed and this legislation completely altered, and in that situation we shall find that, instead of limiting—which was the original intention of the legislation—we shall have widened, whether slightly or wider than 463 slightly, the ambit of those who are eligible to come in. It is for that reason that I raise this question despite the assurances of the Home Secretary that Clause 2(1)(c) has a very narrow ambit.
I would briefly raise the point about patriality which does really concern me. Throughout, there has been the assumption that belonging has something to do with physical ties of family, or part of the family, with whether one of one's ancestors was born in this country. I would suggest—and it is a matter on which we shall agree to differ—that the real concept of belonging is the kind of feelings in the hearts and minds of those who wish to be regarded as citizens of this country, who have consciously continued to accept rights as United Kingdom citizens or, even more consciously, have taken on the rights by registration or naturalisation. In those circumstances a person belongs to this country in a way which someone who is merely the child or grandchild of someone who was born in this country earlier in our history does not. This is a much nearer belonging than that which someone in the light of the birth of one of his ancestors claims.
In a number of international conferences in recent months when I have met people from Australia or New Zealand I have put to them this idea that because their fathers or grandfathers were born in this country they somehow belonged to the United Kingdom. They found this totally implausible. Yet we are cutting out by the 1968 legislation and to some extent by this legislation people who want to belong to this country, who conceive it as their mother country, who want to come here because we have this very old-fashioned concept of who does and who does not belong.
It is for that reason I should like either that we should keep to the old concept of British nationality, which was part of the Commonwealth tradition and which has gradually been whittled away, or that we should start out afresh with a concept of British citizenship which depends upon either birth here and continuation of allegiance to this country or conscious acceptance of some connection with this country acquired by birth or registration or naturalisation. 464 For that reason I would share much of the thinking of the right hon. Gentleman the Member for Wolverhampton, South-West, though, as I said, for entirely different reasons, but it is because of that concern that I have come to the conclusion that we ought to raise this matter yet again on this Clause in order that we shall see that we do not perpetrate another mistake which would take us before the European Convention on Human Rights.
§ Mr. Sharples
I refer first to the remarks of the hon. Member for York (Mr. Alexander W. Lyon). I think very few of us would disagree with him that it is the person who is naturalised here, who is registered here, who has acquired his citizenship in the normal way most of us have, who lives here, who has the prior claim in this matter, but when one comes to define these elements to which he referred I am sure he will appreciate the difficulty of drafting them in law.
I turn to the point he raised about the case before the European Human Rights Commission. Of course that case may be decided one way or another, but it is our contention that there has been no violation of the Convention; we have committed no violation of it at all and it is our intention that the case should be defended. Of course, laws can be found to need alteration in the light of decisions of the courts. This is something which happens all the time. As our contention is that there has been no violation, we see no reason why the Commission should come to a decision contrary to our views.
The hon. Gentleman rightly said that the number of people now affected by Clause 2(1)(c) is very small. They are those citizens of the Commonwealth whose mothers were born in this country. Those whose fathers were born here, whether or not they are Commonwealth citizens, have the right of patriality.
The hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) asked whether it was intentional that there should be discrimination in favour of Commonwealth citizens. The answer is a clear "Yes". It is the Government's intention that there should be a discrimination in favour of the Commonwealth, and that those people whose mothers are 465 Commonwealth citizens should have this additional right. The effect of Amendment No. 105 would be to extend the right of abode to anyone, including aliens, whose father or mother was born here. We do not believe that is right. There would be a considerable number of such people who, in the main, would be living in the United States, Continental Europe and South Africa. We do not believe it is right that this privilege should be extended to people living outside the Commonwealth deriving their patriality through their mothers.
There is always the problem, when a country decides to leave the Commonwealth, that the rights of certain people deriving patriality in this way will be abrogated. It is one of the considerations which any country has to bear in mind in deciding whether or not to remain a member of the Commonwealth. I advise the House to reject the Amendment.
§ Mr. Callaghan
I should like to put one question to the Minister which has occurred to me only since the hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) raised this point. In my constituency, in 1954, there were a number of people who were related to people in Somalia, which became a republic. My recollection is that people living in Somalia, because it became a republic, lost their close affinity and their right to enter this country, and I had difficult correspondence with the Foreign Office about this.
The Minister says that it is for the country concerned to take this into account when it is deciding whether or not to become a republic, but the individual citizen is frequently not in a position to influence the decision. At that time a number of citizens of Somalia were desperately anxious about this. In the words of my hon. Friend the Member for York (Mr. Alexander W. Lyon) they felt they belonged because they had direct connections either through service in the Royal Navy or in some other way, and they wanted to keep this arrangement, but our laws did not permit them to do so.
Will the Minister consider the possibility of giving to citizens of a Commonwealth country that decides to become independent—and we should have to invent a way of doing it—the 466 same privileges as they would have under Clause 2(1)(c) as drafted? These are people who may not be able to influence their own Government in reaching a decision on independence, which may be taken on much wider considerations, yet who nevertheless feel that they would like to retain the connection.
I do not expect the Minister to give an affirmative answer straight away, but will he consider the point between now and when the Bill goes to the other place?
§ Mr. Powell
Before my hon. Friend responds, I think he will find when he looks into this that, if not invariably, at least in many cases where a country has left the allegiance, as it used to be, pro vision has been made for those who wish to retain their allegiance and not be carried into alienhood to do so by an overt act—
§ Mr. Powell
Not invariably, but there are precedents for this and it is something for which the House has often wished to provide.
§ Mr. Sharples
With the leave of the House—one certainly has sympathy with the view expressed by the right hon. Member for Cardiff, South-East (Mr. Callaghan), but I should not like him or the House to be under any illusion about the difficulties of what he is suggesting, certainly in respect of Clause 2(1)(c). The Clause confers a privilege on a very limited number of people simply on the grounds that they happen to be citizens of the Commonwealth and derive their patriality through their mothers. So long as that privilege is derived from citizenship of a Commonwealth country, it would be extremely difficult to devise a scheme which would safeguard that privilege when that citizenship ceases. I will certainly look at the point, but I should be deceiving the House and the right hon. Gentleman if I suggested that there was much possibility of a solution.
§ Mr. Merlyn Rees (Leeds, South)
I rise in a genuine attempt to seek knowledge. My hon. Friend the Member for York (Mr. Alexander W. Lyon) and I ate and slept with citizenship for what seemed like 40 days and 40 nights. The reason why we seem to be unable to deal with this matter now is that we have exhausted the subject.
467 The Minister is at liberty to agree on this point with his right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell), and I would rather he agreed with the right hon. Gentleman than with me on the technical points. But I feel that even the right hon. Gentleman, with his great knowledge, had it wrong. We all learned in Committee that one could be wrong even if one had the greatest expertise in citizenship.
The hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) raised on Clause 2(1)(c) the question of people who have moved not to the Commonwealth but to a foreign country. We had a long session on this in Committee, when the Secretary of State, in col. 179, said that somebody whose parents or grandparents had gone to a foreign country could, two generations later, enter the United Kingdom. My question is: does this apply only where the laws of that country provide for dual citizenship? For example, if the parents or grandparents had gone to Germany, to take the country mentioned by the right hon. Member for Wolverhampton, South-West in col. 183, a descendant would have a right, two generations later, to enter this country.
§ Mr. Merlyn Rees
The Common Market is relevant to this. Questions of citizenship may be involved.
All I can do at this point is to quote the Home Secretary in Committee:The basic point is that, wherever he is born, he is free to come if he draws his position from the father born here."—[OFFICIAL REPORT, Standing Committee B, 30th March, 1971; c. 179.]That leads me once again to the question: is it correct to say just "father", or, now, because of this Bill, is it father and mother as well? It seems to me that the point which the hon. Member for Roxburgh, Selkirk and Peebles has raised is one which we discussed earlier and, if we are still not clear at this stage, it would be valuable to go into it further.
§ Mr. Sharples
If I may have leave to speak again, the answer to that question is: if he is not a Commonwealth citizen, only from the father, and if he is a 468 Commonwealth citizen, from the father or the mother. If I may say so, I think that the point to which the hon. Member for Leeds, South (Mr. Merlyn Rees) refers related to a number of people in South American countries among whom each generation registered as British citizens, and that is the way British citizenship was acquired.
§ Mr. Alexander W. Lyon
Is the hon. Gentleman sure of his reply there? I read the Home Secretary's observations in Committee, and I had the same question mark against that point as did my hon. Friend the Member for Leeds, South (Mr. Merlyn Rees). Is it right that, if I am the child of a United Kingdom citizen who was born here, I am then entitled, under the British Nationality Act, to be a United Kingdom citizen if the citizenship laws of the country in which I am born and where I am a citizen by birth preclude me from dual citizenship? I can see that if I am entitled to dual citizenship and I am born in Germany or Tanzania and I am the son of a United Kingdom citizen I can have both United Kingdom citizenship and German or Tanzanian citizenship. On the other hand, if the country in which I am born has laws against dual citizenship—and many do—was not the Home Secretary's advice to the Committee wrong in regard to those circumstances, since I should be deprived of taking up my United Kingdom citizenship here? Or am I wrong about that?
§ Mr. Sharples
I am sorry to intervene again. My right hon. Friend's answer was absolutely right. It is derived from the father in respect of other than Commonwealth countries, and in respect of Commonwealth countries from the father and mother. If it is derived from the father, irrespective of the situation in the country concerned as to whether dual citizenship is allowed, the right is there.
§ Mr. David Steel
The House ought to pause at this point and be clear about what it is doing. I think that the Minister is right in what he has just said and, if I may say so, the hon. Member for Leeds, South (Mr. Merlyn Rees) was a little confused.
I am anxious to be clear, so I shall repeat my point. I am not talking about 469 people who hold citizenship of the United Kingdom and Colonies. Under our present law—Amendment No. 123 in the name of the hon. Member for York (Mr. Alexander W. Lyon) would establish or continue the present situation—someone whose father was born here and was a United Kingdom citizen is entitled to come to this country regardless of where he himself was born. I understand that to be the position throughout the world.
If we take out paragraph (c) of Clause 2(1), that still remains the position because he would hold it under the British Nationality Act. By paragraph (c) it is proposed to extend that principle to those people who, by virtue of their birth, are Commonwealth citizens and whose mothers were born in this country.
I return now to the Minister's earlier reply. He said that this was a distinction which the Government intended. I can see that, originally, when the Bill was presented to the House, the Government intended a whole series of distinctions between Commonwealth citizens and non-Commonwealth citizens, for instance, that Commonwealth citizens, if they had mother, grandmother or grandfather born here, would have the right of abode. In Committee, we took out the grandfather and grandmother. We are, therefore, left with this: the Government are deliberately maintaining a distinction between the qualification to come here through descent from the mother for those who happen to be born in a Commonwealth country and the qualification for those who happen not to be born in a Commonwealth country.
§ Mr. Steel
The Minister agrees. That is what Clause 2(1)(c) is all about. I say that that is a nonsense. Either we should adopt the view of the hon. Member for York and retain the existing position under which everybody qualifies for entry and right of abode because his father was born here or we should say that everybody should qualify because his father or his mother was born here. What is illogical is to say that some people may qualify because their fathers were born here or others because they happened to be born in the right country at the right time and because their fathers or mothers were born here.
470 That is the illogical state of this proposed legislation. It was justified in the context of the Government's original thinking when they were creating a whole series of distinctions between Commonwealth citizens and aliens, but, since the Committee chose to remove the main part of those distinctions, the one distinction which is left, though relatively unimportant, creates an entirely unnecessary anomaly. I hope, therefore, that I shall have the sympathy of the House in, perhaps, pressing this matter to a Division. I certainly do not wish at this stage to seek leave to withdraw the Amendment.
§ Mr. Merlyn Rees
May I have leave to speak again? This is a valuable discussion to clear the ground because it will enable us to have a clearer debate on a subsequent Clause. First, may I make this observation and see whether it meets the Minister's approval? Clause 2 is not a citizenship Clause; it is a statement of right of abode. It is an immigration concept which enables immigration officers to decide whether someone may come in. The Government have firmly set their face against a citizen ship Act.
Therefore, when one is looking back to either paragraph (a) or paragraph (c) of Clause 2 and considering the concept of citizenship, one needs to refer to Section 5 of the British Nationality Act, 1948:… 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 his birth"—and it does not matter, in the context of the right hon. Gentleman's remarks in Committee, whether he is living in Germany or Timbuctoo. But citizenship is one thing. This Bill is an Immigration Bill, not a citizenship Bill.
I put it to the hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel), therefore, that, in terms of voting or not voting, the point which we have reached on this side is that what is required is not further confusion of the issue as between patriality or right of abode and citizenship. This will never be put right until we have a citizenship Act. Therefore, in our view, voting would be dangerous because it would 471 serve only to complicate the issue even more.
The point made by my hon. Friend the Member for York (Mr. Alexander W. Lyon) about Commonwealth citizens is more logical, but it deals with another aspect which at some time or other we have to decide in the context of Section 5 of the 1948 Act. How far back should one go in the context of citizenship? There are arguments for saying only to the person born here or to one generation, but that to go to two generations is stretching it too far. What we are trying to do is to get the climate of opinion right. The right hon. Member for Wolverhampton, South-West (Mr. Powell) has played his part in that, as my hon. Friend the Member for York said. For heaven's sake, let us get citizenship right. This question of right of abode will only confuse the situation still further.
§ Mr. Alexander W. Lyon
Would it not further complicate the issue at this stage to give a right to a Commonwealth citizen which he does not have at present and which we might have to take from him in the future, if we clarify our law of citizenship, when taking it away could be a further breach of the Convention on Human Rights? That is the point I was making.
§ Mr. Merlyn Rees
In Committee, the hon. Member for Roxburgh, Selkirk and Peebles pursued this question at some length, and we had sympathy with his approach. All I am saying now is that my hon. Friend's approach is more logical, but it is not the matter to be put to the vote now. Indeed, it is a matter which we discussed and voted on in Committee, and we lost. I am not replying to my hon. Friend, though I think that he has logic on his side. I am replying to the hon. Member for Roxburgh, Selkirk and Peebles, and I am saying that we on this side think that it would not be appropriate to vote on this question. It is citizenship which we want to get right.
§ Amendment negatived.
§ Amendments made: No. 6, in page 2, line 22, leave out "and is the child of a person having at any time" and insert "born to or legally adopted by a parent 472 who at the time of the birth or adoption".
No. 8, in page 2, leave out lines 26 to 2 and insert:
(2) In relation to the father of a child born after the father's death, references in subsection (1) above to the time of the child's birth shall be replaced by references to the time of the father's death; and for purposes of that subsection—
(a) "parent" includes the mother of an illegitimate child; and—[Mr. Maudling.]
§ Mr. Maudling
I beg to move Amendment No. 9, in line 42, leave out from "there" to "without" in line 1 on page 3. I believe that we are taking at the same time Amendments Nos. 72 to 77.
The purpose of these Amendments is to clarify the law on the meaning of ordinary residence in this country and to lay down in the interpretation Clause, Clause 33, what is meant by ordinary residence. The effect will be that, except in the context of Clause 7, which safe guards the position of those already here and ensures that people who are already here will still be able to claim ordinary residence, even though they may be over staying their time—
§ Mr. Merlyn Rees
On a point of order, Mr. Deputy Speaker. It may be that this has already been said sotto voce. We were trying to follow the Amendment Paper in relation to this group of Amendments, but we could not be sure about their order. One presumes that they are Government Amendments.
§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)
I should have said that, with Amendment No. 9, we are taking for debate Amendments Nos. 72 to 77.
§ Mr. Powell
Further to that point of order, Mr. Deputy Speaker. Although it is understood that Government Amendments are automatically selected, I suggest that when the Chair in its wisdom has decided to group a number of them together it would be for the convenience of the House if in future that were shown to be the case.
§ Mr. Deputy Speaker
I appreciate what the right hon. Gentleman said, but it is not always possible to do that. If this information does not appear on the Amendment Paper, it should be shown on the list which is to be found at the entrance to the Chamber. If that is not 473 the case, perhaps some arrangement has been reached since Mr. Speaker made his selection. I note what the right hon. Gentleman said and I will endeavour to see that that course is adhered to.
§ Mr. Peter Archer
Further to that point of order, Mr. Deputy Speaker. I assure the House that no arrangement has been reached with the Opposition on this matter. It has taken us by surprise that Amendments Nos. 72 to 77 are to be discussed at this stage.
§ Mr. Deputy Speaker
Let me make this matter quite clear. There is no obligation on the House or a Standing Committee to take all these selections together if they do not wish to do so. Therefore, if hon. Members demur at the selection which has been made they are entitled to do so. The Chair hopes that it is for the general convenience of the House to put these Amendments together, but if strong representations are made to the contrary the Chair must take note of them.
§ Mr. Merlyn Rees
Further to that point of order. There has been every co-operation on this stage of the Bill and the Chair has been extremely helpful. We are in some difficulty on this matter, but we feel that we can accept the situation as it is. No doubt the right hon. Gentleman, with his usual lucidity, will explain what it is all about and we hope that we shall be able to proceed.
§ Mr. Maudling
I am flattered by the hon. Member's confidence in me. I am sorry if there has been any confusion. I understood that this group of Amendments might be taken together since they are all on the same point. Amendments Nos. 73 to 77 are consequential Amendments to Schedule 1; Amendment No. 72 relates to Clause 33, the interpretation Clause. Amendments Nos. 9 and 72, which are the effective Amendments, define somebody who is "ordinarily resident" for the purpose of the Bill.
As the House is aware, ordinary residence for a certain specified number of years is the test for certain rights under the Bill. This defines the matter of ordinary residence. The Amendments provide that a person is not to be treated as ordinarily resident in the United Kingdom while he is here in breach of the immigration laws. In other words, if he 474 is here in breach he cannot claim that period as residence for the purpose of acquiring a right.
There is a special exception that arises under Clause 7, relating to Amendment 37, which is designed to safeguard the position of those who are already here to ensure that we are not taking away from anybody already here a right which they possess. People already here can count time they spend here overstaying their leave towards ordinary residence. We shall continue that illogical arrangement because of the undertaking I have given that we do not intend to take away a right which such people possess.
For the future it is sufficient to say that if people want to claim a right by virtue of residence here they must be lawfully residing here. They must not have residence here in breach of the immigration laws. That will be the effect of Amendments Nos. 9 and 72. The substantive Amendment is No. 72. The other Amendments are consequential to Schedule 1. They are required because the new Amendment to Clause 33 setting the matter out in general means that one does not have to set the matter out in the same way when one comes to the Schedule. These Amendments could be termed consequential. We are simply saying that when a man claims a right because of ordinary residence, it must be ordinary residence not in breach of the immigration laws.
§ 5.0 p.m.
§ Mr. Peter Archer
The House will be grateful to the right hon. Gentleman for both the clarity of his exposition and his concession on Clause 7. We do not complain about the principle of what he is seeking to do. When I first read Amendment No. 9 I thought that the Home Secretary was overcome by a fit of conscience about the whole Bill.
§ Mr. Archer
The right hon. Gentleman has quickly disabused me of that. I thought that he was indulging in a paroxysm of generosity which would have gone even further than I should have been inclined to go in his position. He seemed to be deleting the requirement that to qualify for patriality an immigrant had to be here lawfully in the first instance. Alas, all that was 475 taken away by Amendment No. 72. I content myself with commenting that, not for the first time, the promise of better things given by this Government when presented for payment turns out not to be intended seriously.
§ Mr. R. T. Paget (Northampton)
I am not altogether happy about this matter. The basis of our law has always been a deep respect for possession, whether legal or not. If people are in possession of property and no one interferes with that possession for a certain time, it is taken as legal and can be asserted against everybody.
Surely when somebody has been here for a very long time and has established residence—by "a very long time" I do not necessarily mean within the short limits of the Bill—we do not say that 20 or 30 years back he had no title. I think that there ought to be a limit. We may say that illegal residence shall not qualify for anything in the initial stages, but at a certain point I think that, as with land, title ought to be acquired by virtue of having been here a long time, whether lawfully or not.
I give a simple illustration of a man who, having been slipped across the Channel, has been residing here for 20 years and has bred his family here. If, after those 20 years, somebody spots that he arrived here by mistake, does that illegitimise his position and that of his children? I should be interested to hear the Home Secretary's view on that.
§ Mr. David Steel
I seek to raise almost the same point as that of the hon. and learned Member for Northampton (Mr. Paget). The Home Secretary will recall that in Committee the right hon. Member for Ashford (Mr. Deedes) raised an interesting point which he has so far chosen not to pursue on Report. Nevertheless, I think that it is worthy of serious consideration. The right hon. Gentleman asked what would be the position, after the Bill became law, of those who at some point in the past had entered this country illegally. We had a debate on the numbers. Without going into how many there may be, it is surely unsatisfactory that there should be people who, having been ordinarily resident here 476 for a very long time in any ordinary meaning of the words "ordinarily resident", under the Bill, and particularly in view of the Amendment now proposed, could never be ordinarily resident, however ordinarily resident they might appear to be, because at some stage in the past they had been, and presumably still are, in breach of a former immigration law.
This is an important matter. The right hon. Member for Ashford suggested that there might be some kind of amnesty for these people at the time that the Bill was going through Parliament. I should be interested to hear the Home Secretary's view.
§ Mr. Maudling
With the leave of the House. This is a matter of discretion. If a man has been here for a very long time, it is within our discretion to say that he can stay. However, the Amendment is concerned with a different point—the acquisition of a legal right to stay or of a legal right against deportation. We are saying that, as a matter of interpretation, the acquisition of a legal right to stay must be a period of legal residence. After that, if a man claims, "I have no legal right, but it would be unfair to throw me out because I have been here for a very long time", it would be a matter for the fair exercise of discretion.
§ Mr. Robert Hughes (Aberdeen, North)
Will the Home Secretary respond to the remarks made in Committee by his right hon. Friend the Member for Ashford (Mr. Deedes) about the possibility at some stage—I do not know whether Third Reading would be appropriate—of offering some general amnesty to people who have been here for a very long time, but who initially entered illegally or overstayed their term, and so on? This is an important point. In Committee many hon. Members were seized of the point made by the right hon. Member for Ashford. I hear a whisper that this point will arise later. Perhaps the Home Secretary will inform me about the position.
§ Amendment agreed to.
§ Amendment made: No. 10, in page 3, line 4, leave out 'the' and insert 'any'.—[Mr. Maudling.]477
§ Mr. Merlyn Rees
I beg to move Amendment No. 12, in page 3, line 11, at end insert'and by the next following subsection.(5) Any Commonwealth citizen having the right of abode in the United Kingdom and being a person of full age and capacity shall be entitled, on making application therefor to the Secretary of State in the prescribed manner, to be registered as a citizen of the United Kingdom and Colonies and the provisions of section 9 of the British Nationality Act, 1948 (as set out in Appendix C to Schedule 1 to this Act) shall apply to any person so registered'.Under the terms of the British Nationality Act, 1948, as amended by the Commonwealth Immigrants Act, 1962, a right was given to Commonwealth citizens to register as citizens of the United Kingdom and Colonies after five years. I emphasise that it was a right; it was not discretion. I understand that this right was not much exercised over the years, but it was part of the concept of the 1948 Act and of the subsequent change when it was recognised that the Empire was turning into the Commonwealth.
We have gone over the question of citizenship on many occasions, so by this stage we have learned a great deal about it. Citizenship was of different types. There was citizenship of the United Kingdom and Colonies, citizenship of each Commonwealth country, and British subjects without citizenship, all of whom were Commonwealth citizens. I always found it surprising that British subjects without citizenship were Commonwealth subjects. Nevertheless, this is so. British protected persons were outside this group of Commonwealth citizens.
As part of the move by the Government to reform and change immigration control—the right hon. Gentleman has been careful on all occasions to say that, despite the Long Title, this is not a citizenship Bill but an Immigration Bill—we have the concept of the right of abode. That is an immigration concept, not a citizenship concept, although the two are related to some degree. We have seen in earlier discussions today how the two can diverge.
The right of abode, which is relevant to my argument, is an important part of Clause 2. Indeed, the whole of Clause 2 is a statement about the right of abode. Clause 1 contains the general principles 478 underlying this concept. In both Clauses the Government have fought shy of citizenship but have dreamt up the concept of right of abode and patriality.
I remind the House that the right of abode gives freedom to live in, to come into, and go from the United Kingdom, without let or hindrance. That is how the right of abode is defined. I also remind the House that Commonwealth citizenship brings certain rights. A Commonwealth citizen coming to this country, whether he comes here to settle, or for a short period, has all the rights of citizenship that are enjoyed in this country. For example, he has the right to vote. The new temporary work permit holders, too, will have these rights, and we know at election time all the political parties have their pamphlets translated into the languages of many Commonwealth countries, in order to appeal to Commonwealth citizens, and recently one has heard of the Conservative Party publishing such documents between elections.
I should like to relate those two concepts of citizenship and the right of abode to the question of registration, which used to be a right, but which is now at the discretion of the Home Secretary. What we seek to do by our Amendment is to say thatAny Commonwealth citizen having the right of abode in the United Kingdom and being a person of full age and capacity shall be entitled, on making application therefor to the Secretary of State in the prescribed manner, to be registered as a citizen of the United Kingdom and Colonies and the provisions of section 9 of the British Nationality Act, 1948 (as set out in Appendix C to Schedule 1 to this Act) shall apply to any person so registered.What that adds up to is that a Commonwealth citizen who has a right of abode shall have a right of registration as a citizen of the United Kingdom and Colonies. The Government have seen fit to give a right of abode in the way in which I have defined it. What it adds up to basically in immigration terms is that such a person cannot be deported, but there are some people who not only have that right, but also have all the rights of citizenship of this country. Surely, therefore, citizenship of the United Kingdom and Colonies should go with the right of abode?
The Bill has many inconsistencies, arising from the grafting of immigration 479 control concepts, patriality, and right of abode, on to the existing law, without attending to citizenship. The view of this side of the House is that if a Commonwealth citizen is good enough to be patrial, if he is good enough to have the right of abode—which is receiving the accolade of the Bill—he should have all the rights of citizenship. Is it not illogical that, after five years, such a person has to go through all the paraphernalia of applying for citizenship when he has what is required already? We regard this as an anomaly, and we hope that the right hon. Gentleman will agree to deal with it in the way suggested in our Amendment.
§ Mr. Maudling
The hon. Gentleman raised an interesting point, and I listened with care to what he said. The Amendment proposes thatAny Commonwealth citizen having the right of abode in the United Kingdomshall have the right to be registered. Commonwealth citizens having the right of abode are those who are children of a United Kingdom-born father, or a United Kingdom-born mother. Those who are children of a United Kingdom-born father are citizens. The only people affected are those who are children of, and have the right of abode through, United Kingdom-born mothers. The number will not be large. There is an anomaly here. I cannot accept the Amendment without a chance of looking more closely at the drafting, but I undertake to introduce an Amendment in this vein at a later stage.
§ Mr. Merlyn Rees
In view of the right hon. Gentleman's assurance, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.15 p.m.
§ Mr. S. C. Silkin (Dulwich)
I beg to move Amendment No. 15, in page 3, line 29, leave out ' statements of the rules ' and insert:'for approval drafts of the rules proposed to be'.
§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)
With that Amendment it will be convenient if we take the following: No. 16, in page 3, line 29, after 'rules', insert:', or of any changes in the rules,'.
No. 111, in line 29, after 'rules', insert:
', which shall require the positive affirmation of both Houses of Parliament.'
No. 112, in line 29, after 'rules', insert:
'which shall be subject to annulment in pursuance of a resolution of either House of Parliament,'.
No. 17, in line 39, at end insert:
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances and lay a further statement before Parliment accordingly.
No. 18, in line 39, at end insert:
(Rules referred to in subsection (2) above shall be of no effect until a draft thereof has been approved by a resolution of each House of Parliament.
§ Mr. Silkin
The Amendment—and those being taken with it—raise the point about how the rules, the drafts of which are to be laid by the Secretary of State, should be approved by the House. The Amendments tabled by the Secretary of State, and adumbrated in Committee, provide for the negative procedure, whereas the Opposition propose that the affirmative procedure should be employed.
This is a matter which invariably comes up for debate. The Government of the day most frequently seek to provide that the rules, regulations, or whatever they may be, shall be subject to the negative procedure, while the Opposition very often take the opposite view. That is true irrespective of which party is the Government.
In this case there are two factors that one has to bear in mind in relation to the rules. The rules are described as dealing with administration and control, but the draft rules that we have seen go a great deal further than that. They give substantive rights. Throughout the debates in Committee the Government relied upon the rules. Whenever we sought to introduce certain provisions into the Bill to give specific rights by means of legislation, the Government said that 481 it was not necessary because all that we wanted was provided for in the rules.
It follows that it may be necessary to amend the rules from time to time, and to legislate not merely in respect of immigration control but in respect of the rights of people coming into this country, or the rights of those who are already here. Where that is done we shall be dealing with rules, and not merely with administration, and it seems to us inadequate that the matter should be dealt with by way of negative control, which means having to take a chance on the ability to put down a Prayer and debate it. Our view is that instead of adopting that procedure, the Government ought to bring their proposals before the House formally and ask for approval for them.
The second point certainly applies today and is likely to continue for the foreseeable future. Of course, with alterations of our procedure, this matter may be cured, but at the moment it is extremely difficult to find time to debate matters which are subject to the negative procedure.
The right hon. Gentleman has gone some way towards dealing with that difficulty in Amendment No. 17, but even that allows a considerable risk that these important matters, arising over the original rules and in respect of amendments, may slip through without the House being able to debate them. It was said in Committee that the non-party Statutory Instruments Committee had expressed particularly grave concern about this matter.
Whatever may be said about the many sets of rules and regulations which are subject to that procedure, these particular rules are so closely akin to legislation that they must be regarded as of very great moment and much more important than many of the matters at present dealt with by the negative procedure.
Although we must accept with some gratitude the right hon. Gentleman's concession in an Amendment to provide that the House shall have some say during the passage of these rules into law—the Bill originally gave the Home Secretary complete discretion apart from having to lay the rules before Parliament—it is inadequate. He should go the whole way and enable Parliament to approve the rules affirmatively.
§ Mr. David Steel
If the Opposition divide on this Amendment, we shall support them. Our Amendment No. 111 is designed to achieve precisely the same purpose. With respect to the hon. and learned Member for Dulwich (Mr. S. C. Silkin), it is not just a question of the conventional arguments between Opposition and Government about parliamentary time. There is an important additional argument. We shall no longer be able to have our annual full day's debate on immigration in November under the Expiring Laws Continuance Act. This will be the new legislation and will not be subject to that control.
The Government should weigh this consideration and, when the Home Secretary drafts rules, he should have to seek the positive approval of the House, because there will be very few occasions on which we can debate our immigration legislation. That seems a fair compensation for giving up this opportunity for an annual debate. I hope that the right hon. Gentleman will accept this reasonable point.
§ Mr. Maudling
I had hoped that I had gone a good way towards meeting the views of the House. I do not think that I can go further, for good reasons. If there is to be a system of immigration rules, it must be continuous and flexible, and should have no gaps. If there is a loophole, it may be necessary to act very quickly. After all, if people exploit a loophole, others waiting patiently in the queue will rightly resent it. So it has been recognised that the Government should act quickly in amending the rules.
It was generally accepted in 1962 that the rules should be not subject to Parliamentary control but merely laid before Parliament. That was the position, satisfactorily, for aliens before this Bill. But it was argued strongly in Committee that, because we were taking from Commonwealth citizens a statutory right and incorporating them in the rules, there was a case for making them subject to Parliamentary control. I accept that argument, and that is why I am proposing the Amendments that any new immigration rules or amendments should be subject to parliamentary control.
It must be by the negative procedure, because otherwise there might be considerable periods when Parliament was not sitting, when we had to act quickly 483 and could not. That would not be reasonable. We must have this power of flexibility as well as the power of a continuous set of rules. That is why we have drafted the Amendments as we have, providing for a statement to be made about any new rules and that, if it is annulled, we shall have to return with a proposal which is more likely to meet the wishes of the House.
I accept that important points could arise, but I feel confidence in the procedure of the House to the extent that I am sure that, if we introduced new rules or amendments of rules which raised important matters, the House could arrange to debate them urgently on a negative resolution. But I see how right hon. Members are to stress these important matters. However, I must rest on the argument that the rules should be both continuous and flexible. Since I have met the legitimate arguments made in Committee, I hope that the House will be prepared to give me these Amendments.
§ Mr. Peter Archer
The Secretary of State believes that Parliament can normally rise to the kind of situation which has troubled some of us. Can it not equally rise to the kind of situation which troubles the right hon. Gentleman? He seems to believe that there may be a requirement to act quickly. One would have thought that that does not necessarily mean that the Government will be acting in a vacuum. There will already be rules within the framework of which the Government can act. The right hon. Gentleman has been straightforward enough to publish the rules which he proposes to make if and when the Bill becomes law. If there is a sudden and completely unforeseen emergency—an emergency of a kind so uncontemplated that no provision has been made for it within the draft rules-one wonders what will prevent the right hon. Gentleman coming to the House and explaining the position.
§ 5.30 p.m.
§ Mr. Archer
By exercising one's ingenuity one can envisage anything, even an invasion from outer space, to create an unforeseen emergency. As far as I am aware, there has been no such 484 difficulty in the past. The House has always been understanding in these matters. There have been occasions when it has been reconvened during the long recess. Hon. Members have returned from their holidays when a completely unforeseen event has occurred. It would not be the first time—if something happened which necessitated the rules being changed quickly—that the House had been recalled. I will not develop this point. Hon. Members will easily recall precedents.
If the law were to require to be changed so quickly, before the public had had time to assimilate and understand the situation which had arisen, it would be all the more important for that change in the law to be discussed in Parliament. If such an unforeseen event had occurred which necessitated the rules being changed, the House should be taken into the Government's confidence and, in those circumstances, the Government could expect the sympathy of the House in securing the rapid change in the law that was required.
We are discussing serious matters. The Amendment is of a procedural character and normally that is sufficient to empty the Chamber. However, it will affect the daily lives of many people as closely as any provision in the Bill.
Let us not overlook the fact that the Bill is about the power of the Home Secretary to control the residence here of non-patrials who are subject to such conditions as the right hon. Gentleman thinks fit. How that control is to operate is contained in the rules which are the subject of this Amendment. We are concerned with such matters as whether a non-patrial will be permitted to work and change his job; whether he has been here long enough to obtain a mortgage or to make it worthwhile for him to bring over his family; what his relationship with the authorities will be; whether one group of non-patrials is to be discriminated against; and equally important matters, all of which will be contained in the rules. The extent of the right hon. Gentleman's power to make, unmake and alter the rules is the degree of his power over the lives of individuals.
The power of the Government over people as contained in delegated legislation is a subject which has exercised 485 the minds of politicians, political scientists and lawyers for more than a generation. In fairness, I must say that it is a subject which has exercised the mind of the Conservative Party, though perhaps, and understandably, more when hon. Gentlemen opposite have been in opposition than when they have been in Government. Whether, and, if so, how, those who make the rules are to be answerable to Parliament occupies a large proportion of the balance sheet which is, as it were, an index of people's freedom in Britain.
When this matter was first raised in Committee my hon. Friends embarked on an expedition into this fascinating sphere. It began with an exchange at the first sitting of the Standing Committee, when the hon. Gentleman the Minister of State sought to assure hon. Members in these terms:It would not be possible"—and he was speaking of the Bill as originally drafted—for my right hon. Friend, or any successor, to alter the directions given to immigration officers without informing Parliament that he was doing so".—[OFFICIAL REPORT, Standing Committee B, 6th May, 1971; c. 558.]That was perfectly right, but what worried us was the fact that while that was the most comforting assurance that the hon. Gentleman could give, we felt that we had not been elected to the House merely to be informed of what the Government were proposing to do. We therefore embarked on what transpired to be an expedition through a veritable jungle and we began by looking at the Statutory Instruments Act, 1946.
It seems that the rules as contemplated, even by the Amendment, will not be Statutory Instruments and will not fall within the ambit of that Act. We are fortified in this view by the fact that in Clause 33(2) the draftsman goes out of his way to refer to certain rules intended to be Statutory Instruments, and it seems to follow that where he does not say that, they are not contemplated as being Statutory Instruments. As drafted, it seems that the power of the Home Secretary is subject to no control whatever, save the necessity to tell us what he proposes to do.
486 I understand that if the rules were Statutory Instruments and nothing were said as to the method of control, the remedy of an hon. Member who wished to annul the rules would be to table an Early Day Motion. That might have been a satisfactory solution in the days when it was the practice to find time to debate Early Day Motions. I make no complaint about the fact that that practice has changed; the proliferation of Early Day Motions may have had something to do with it.
When an Early Day Motion is set down nowadays it may be taken up by the Press, discussed off the Floor of the House and canvassed among those who are seeking to mount a lobby, but normally it does not get discussed on the Floor of the House. Indeed, in this respect the power of hon. Members over what happens to an Early Day Motion seems no greater than the power of any individual who is not an hon. Member.
Reference has been made to the Report of the Select Committee on Statutory Instruments. It said—and this went even further in relation to Instruments which are the subject of the negative procedure—in this connection:Your Committee do not consider that the present practice of the House regarding instruments subject to negative procedure and general instruments is satisfactory. Until fairly recent Sessions, it was the practice of the House that time was found for a debate in the House on all motions praying that statutory instruments be annulled; if for any reason time could not be found within the forty days' praying time, it was the convention that time would be found for a motion in similar terms to be debated (these motions are called ' out-of-time ' prayers). In recent Sessions the practice of the House has changed. It is now not uncommon for prayers to remain undebated either 'in-time' or 'out-of-time'.There may come an occasion when the House will consider how it proposes to deal with a situation which could be serious, not only for hon. Members but for our constituents.
Whether that is still the remedy of hon. Members and whether the rules which we are discussing are not Statutory Instruments is, I confess, something which I have not been able to trace. The rules of order which are the tools of our trade are becoming the tools of very much a specialist trade in this House. When I discussed these matters with my constituents I find that they are puzzled by our processes. I am coming to feel that 487 my chief qualification for representing them is that I can understand their bewilderment.
We debated this issue in Standing Committee, as the right hon. Gentleman said, and he undertook to move an Amendment on Report. He has perfectly properly fulfilled that undertaking in the form of Amendment 17. The proposal, as I understand it, is that rules are to be made subject to a form of negative control. I understand, although the right hon. Gentleman did not say this, that the effect will be that an hon. Member seeking to annul could set down a Prayer for debate on a particular day; and we must therefore consider whether the right hon. Gentleman's proposal is sufficient to satisfy us.
Two matters concern us. First, as I understand it, if a Prayer to annul is set down, the prospects of its being debated and voted upon depend on two factors. First, it has to be reached before 11.30 p.m. That is the effect of Standing Order No. 4. If the other business of the House continues beyond that time, it is not debated or voted upon. Second, its prospects depend upon the Government's decision to set it down on the Order Paper above the line. I know little of the mysterious processes by which these matters are decided but they govern the fate of individuals to which these rules apply. So the power which the Amendment appears to give hon. Members is one which they may well find, when the time arises, they are unable to exercise.
Next, what troubles us is that the Amendments seek to provide that if the House passes a resolution disapproving a proposed rule, the Home Secretary may make changes… as soon as may be …and the changes which he may make are those which appear to him to be required. What worries us is whether this means that meanwhile the rules continue in force, even though they have been expressly disapproved by a Resolution of the House, and whether, in the meantime, authorities will continue to act on them and people's lives will continue to be governed by them.
Does it mean that the Home Secretary need not make the specific changes for which the House has called during 488 the debate but only such changes as seem to him to be required, so that he then lays a further draft of the amended rules before the House and the House may again disapprove of them and again the alterations continue in force? Perhaps the right hon. Gentleman could enlighten us as to how this will work out. From the terms of the Amendment, it appears that this will be the effect. The control which he seems to offer the House, if our understanding is correct, is all too shadowy. We have a responsibility to safeguard the liberties of the British people. With these tools we cannot discharge it.
Perhaps because in connection with aliens we have been a little more cavalier than we would have been normally in connection with Commonwealth citizens, in the past there has been what my hon. and learned Friend the Member for York (Mr. Alexander W. Lyon) called earlier a tacit agreement not to go too deeply into the tools provided to hon. Members to safeguard those who are most concerned. Certainly the Home Secretary sought to argue in Standing Committee that parliamentary control was not so slight as is sometimes argued. He said that if Members were ingenious enough, they could find a way to provide a debate. He quoted one of his illustrious predecessors, Mr. Chuter Ede, speaking on 13th February, 1962, as saying that one might, for example, question the salary of the Minister concerned, using the time on a Supply Day. If we are seeking to bring the Government under the control of the House in these matters, that is not good enough. An hon. Member seeking to raise the matters which he was elected to watch should not need to display his ingenuity in seeking an opportunity. Parliamentary procedure is not intended as an obstacle course to test ingenuity but as an aid to Members in carrying out their functions.
One is left wondering why we should erect fences and dig ditches and then discuss ways of evading them when we can provide the necessary opportunities in a straightforward way. If the problem is only as stated by the right hon. Gentleman today, that we may have a situation so entirely unexpected and unforeseeable that we need to change the law very quickly, one would have thought that this was just the situation 489 in which he ought to take the House into his confidence and in which the House would understand his difficulty.
We seek to provide, in plain English, that hon. Members may have the opportunity of fulfilling their duty to their constituents. Unless we receive a more convincing reply than we have had so far, we shall divide on the Amendments.
§ 5.45 p.m.
§ Mr. Michael Fidler (Bury and Radcliffe)
I rise to make a special appeal to my right hon. Friend on these Amendments due to my concern regarding two especial principles which exist at present in the rules alone.
My right hon. Friend was good enough to give us advance notice of his proposed draft rules, both before and after entry—67 before entry and 51 after entry. It may well be that many of them, if not most of them, are susceptible to the procedure now proposed in Amendment No. 17. But there are two vital principles in those rules which are not adequately safeguarded under the proposed Amendment.
I refer first to the principle of no discrimination on grounds of race, creed or colour in dealing with immigrants on their arrival. I need not deal with them after entry, because the principle of no discrimination is enshrined in Statute in the Race Relations Act. But, more especially, I refer to the principle of the right to political asylum. Both of those principles are in the rules. My concern is that we should in some way guarantee those principles in a far firmer fashion than is apparently possible in the proposed amendment.
In my constituency there are a number of different ethnic groups—for example, a group of Pakistanis, and a group of Ukrainians who were formerly refugees. I am aware of their problems, fears and anxieties.
In another incarnation I am the President of the Board of Deputies of British Jews and thereby, as lay leader of British Jewry, I know their views and it is my responsibility to give expression to their experience. The Board of Deputies of British Jews was established in 1760, some 211 years ago, and several 490 of my distinguished predecessors have served in the House. For over two centuries it was a community of very small numbers, but it is one of over 400,000 now. For the last 70 years, a large number of Jewish refugees, those who have fled from persecution in the land of their origin, have come to this country. What I say is based on their experience. They and the Board are happy to know that the traditional practice of political asylum is enshrined in the history of the procedure of this great country. But we have to remember that to give an assurance to those people that they will not be harried in the future—not only Jewish people but all refugees coming to this country—we need a procedure by which the House can maintain a great deal of vigilance over those two principles.
My right hon. Friend was good enough to receive a deputation from the Board of Deputies. The deputation made that very point and asked that these two principles be written into the Act. At that time, and in Standing Committee, we were given to understand that some alternative would be brought forward whereby, since they are enshrined in the rules, the rules would be made as watertight and as safe as possible.
I was looking forward to the proposed Amendment which my right hon. Friend would be bringing forward today. I welcomed his clear statement in Committee. When dealing with points made by the hon. and learned Member for Dulwich (Mr. S. C. Silkin), he referred to assurances given by the Under-Secretary of State for Foreign and Commonwealth Affairs, and said:He said, in the clearest possible terms, that nothing in the Bill affects in any way the hallowed traditions, policies, and practices of this country as pursued by succeeding Governments, as far as political refugees are concerned. He said that quite clearly and categorically. He also pointed out that, under the Draft Rules, it is stated specifically that deportation is not to take place if it meant that a man would go to a country where he would be at risk of persecution.My right hon. Friend went on to say:Therefore, it is quite misleading for the hon. and learned Gentleman to talk about a dilemma. I would not be in any dilemma. If a man can only be deported to a country where he would be persecuted, I would have no right to deport him. I would not contemplate deporting him. This is the position as it always has been. The only point of dispute on the Amendment is whether this 491 provision should be in the rules or in the Bill."—[OFFICIAL RFPORT, Standing Committee B, 11th May, 1971; c. 653–4.]My right hon. Friend went on to suggest that he would be producing an Amendment which would safeguard the position to which I have referred.
My deep concern now is whether the Amendment goes far enough in connection with those two principles. I am not so deeply concerned about the other items, including the rules applying before and after entry, but these two principles are sacred and inviolable.
Perhaps my right hon. Friend can tell me whether the right to political asylum exists already in some overriding Statute which is not repealed or affected by the Bill. If that is so, my objection will fall. If those rights do not exist, either my right hon. Friend should be a little more generous in considering the other Amendments which have been tabled and make the rules placed before the House subject to an easier procedure for hon. Members to debate, or, if he believes that a negative procedure is appropriate in respect of most of the other rules, he should think again about the possibility of taking out of the rules the question of the right of political asylum and writing it into the Bill so that it will be part of a Statute.
I pay a special tribute to the humanitarian reputation which my right hon. Friend deservedly enjoys and to the very generous way in which he has interpreted his powers in this and other instances. Nobody's reputation stands higher. Indeed, I pay tribute to all of my right hon. Friend's predecessors for the ready way in which they have dealt with what I have already described as hallowed traditions in Britain.
My deep concern, which I hope that my right hon. Friend can satisfy, is that we should take steps in dealing with the Bill to make it beyond the power of some illiberally-minded person or persons in the House in future to find some easy way of affecting these two vital principles.
§ Mr. Sydney Bidwell (Southall)
As with last night's debate on an earlier part of the Bill, on this Amendment there has been an obvious expression of anxiety and disquiet on both sides. The hon. Member for Bury and Radcliffe (Mr. Fidler) has strongly expressed the anxiety about the distinction of what is to be in rules and what is to be in Statutes.
492 There is a curious illogicality in the Secretary of State's attitude in providing for certain regulations to be in Statute form, namely, on the question of arrangements for virtual repatriation but which do not appear in the Acts of 1962 and 1968 which are repealed by the Bill. It is illogical that the right hon. Gentleman should think then in terms of rules which can be challenged only under the negative procedure rather than under the positive procedure.
I am a veteran of debates on the expiring laws, having taken part in such debates annually since I entered the House five years ago. The Secretary of State is right to point out that in those debates it has been argued from both Front Benches that it would be very valuable if we could get our race relations conditions to such a degree of correctness that we no longer needed this annual ritual.
We have not got the position right in the Bill. Both sides agree that it will be necessary to come forward with extra Statute law to overcome the problems which will arise with regard to immigration. Both sides have said that this is not a citizens' law. The right hon. Member for Wolverhampton, South-West (Mr. Powell) has logically argued that sooner or later we shall have to come to it and my hon. Friend the Member for Leeds, South (Mr. Merlyn Rees) has emphasised it several times. This is why we had that curious alliance in removing the wider aspect of patriality, because of the inexorable logic of the argument, no matter who was presenting it. We do not go right to the end of the road with the right hon. Member for Wolverhampton, South-West—that is, if we all know exactly where he wants to go.
There is a new ingredient now in our considerations on the question of changing rules when Parliament is not sitting, or changing rules even when it is sitting, and when any hon. Member who wishes to challenge the rules must rely on his guile. One very important fact in our minds is the possibility of extending the common travel area. In Committee, the Secretary of State said that he thinks that he can overcome the situation on possible entry to the E.E.C. without changing the Statutes, simply by writing a rule saying that the common travel area, which now embraces the whole of the British Isles, 493 including the southern state of Ireland, should be extended.
I do not know whom the Secretary of State thought he was kidding when he said that. It is obvious that accession to the Treaty of Rome will need new Statutes if our laws are to accord with the Treaty, because our accession will considerably enlarge the numbers of people who will have the right to enter Britain, not on claims of patriality, but under the laws and progress of the Treaty of Rome as it has so far advanced.
I hope that my right hon. and hon. Friends will press this matter to a Division so that our anxieties are clearly spelled out. This is not a finished set of laws for our immigration problem. The matter will have to be continually discussed. The more discussion the better. The greater the facility for discussion the better. This is why I support the Amendment.
§ Mr. Maudling
May I with the leave of the House reply to some points which have arisen?
I thought that some of the arguments which were advanced by the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) were directed not to my Amendments, but to the text of the Bill before my Amendments were proposed. The hon. and learned Gentleman correctly stated that I had quoted Mr. Chuter Ede's comment that hon. Members had to use their ingenuity on certain occasions. I did indeed refer to that, but I expressly moved away from the Chuter Ede position in the direction desired by hon. Members opposite; because I am for the first time in the history of our legislation introducing parliamentary control over the rules.
§ Mr. S. C. Silkin
The right hon. Gentleman is no doubt entitled to say that, but does he not remember that many of the subjects which he is putting into the rules were formerly put into the Statute? I have in mind the express provision of Section 2 of the 1962 Act governing the right of wives and children under the age of 16 to enter. Such matters of substance are now in the rules, thus creating an entirely different situation.
§ Mr. Maudling
I said that in my earlier speech. I said that it was precisely because statutory rights were being taken 494 away and put into the rules and not into the Statute that I accepted the argument that the rules made under these conditions should be made subject to Parliamentary control.
§ Mr. Peter Archer
Does not the Secretary of State appreciate that the burden of our difficulty is that his Amendment does not provide hon. Members with a way of controlling his use of the rule-making power, because such weapons as he is putting into our hands are not effective?
§ Mr. Maudling
I will come to that point in a moment, because that is the basis on which it is probable that we shall be having a Division on this matter.
In reply to my hon. Friend the Member for Bury and Radcliffe (Mr. Fidler), may I say that I made a deliberate statement in Committee about the rights of political asylum which are not and will not be disturbed. Apart from the rules, it is an international obligation by which this country is bound. The right of political asylum rests on that. Anything I did to take away that right would be in breach of international treaties. That is the other safeguard.
The issue is fairly simple. I have proposed that there should be Parliamentary control through a negative procedure. On the whole, Labour hon. Members think that it should be an affirmative procedure. They argue that in such an important matter the Home Secretary should not be able to take action until the House had approved it. But I think that it is very important to be able to act immediately, even when the House is not sitting.
That is the argument of both sides. One can take one's choice. I think that the matter is fairly evenly balanced. I must adhere to my point of view. If the Opposition feel that they must press the Amendment to a Division, I am sorry, but I shall have to resist it.
§ 6.0 p.m.
§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)
Order. The hon. and learned Gentleman does not require leave of the House to speak again; he is the proposer of the Amendment. Nor does anyone in charge of the Bill require the leave 495 of the House to speak again, even though there be six in charge of the Bill.
§ Mr. Silkin
I am grateful to you, Mr. Deputy Speaker. I hope that even if I do not require leave I still have it.
The Opposition are not satisfied with the Home Secretary's reply. I do not know how many hon. Members have had the rules in front of them whilst we have been discussing these matters. The draft rules on control of entry are 67 in number, and those in relation to control after entry number 51. A number of them are very detailed. In some cases they are matters which have been dealt with by Statute, and when they are dealt with by Statute, as the right hon. Gentleman is only too well aware, a Committee of the House and the House on Report can examine the provisions line by line and see whether they are adequate.
That right of the House is being wholly removed in relation to matters of considerable substance—not merely questions of how the procedure should work but the rights of people coming into this country and people who are already in the country. Those rights are being affected, and they are being provided for by the rules with no opportunity for hon. Members to debate line by line whether the right rules are being provided.
I agree with the hon. Member for Bury and Radcliffe (Mr. Fidler) that, whatever may be the position in international law, when we come to a question of immigration control which raises so tangibly and in such an important way the question of what the rights of political asylum and so on should be, it is highly desirable that those matters should be clearly ex-pessed in a Statute dealing with the matter rather than being tucked away in rules dealing with questions of procedure and practice, in some cases merely repeating what the Act says and in others dealing with substantial matters affecting people's
§ rights. It is not sufficient for the Home Secretary to say, "A situation may arise which needs to be dealt with quickly, and therefore we want to be able to deal with the matter so that our amendments come into force immediately and do not have to wait to be approved by the House, because it may be in Recess." What the right hon. Gentleman is there talking about are procedural matters, when someone may have found a dodge which enables him to get in, or something like that which may not have been thought of before.
§ The fault is the right hon. Gentleman's. I should have a great deal more sympathy with his point of view if he put that kind of matter into a separate document dealt with by the negative procedure, and put the substantive matters about which the hon. Member for Bury and Radcliffe talked—the matters that were the subject of the 1962 Act and really affect the rights of citizens—into a totally different document which, if it cannot be part of the Bill, can at least be made subject to the affirmative procedure. To lump them all together into two documents, one dealing with control of entry and the other with control after entry, and, because some parts of those matters might be matters of practice which would need to be dealt with in a hurry, to say that the whole lot should be subject to negative procedure, despite the changes in people's rights that may result, is entirely wrong.
§ Unless the Home Secretary can modify his reply, the House should divide on the Amendment. It is a matter of principle, and I hope that my right hon. and hon. Friends will follow me into the Division Lobby.
§ Question put, That the Amendment be made:—
§ The House divided: Ayes 169, Noes 195.497
|Division No. 377.]||AYES||[6.6 p.m.|
|Albu, Austen||Boardman, H. (Leigh)||Corbet, Mrs. Freda|
|Allaun, Frank (Salford, E.)||Booth, Albert||Crawshaw, Richard|
|Archer, Peter (Rowley Regis)||Bottomley, Rt. Hn. Arthur||Crosland, Rt. Hn. Anthony|
|Armstrong, Ernest||Buchan, Norman||Cunningham, G. (Islington, S. W.)|
|Ashton, Joe||Buchanan, Richard (G'gow, Sp'burn)||Dalyell, Tam|
|Bagier, Gordon A. T.||Callaghan, Rt. Hn. James||Davidson, Arthur|
|Bannett, Joel||Campbell, I. (Dunbartonshire, W.)||Davits, Denzil (Llanelly)|
|Beaney, Alan||Carter, Ray (Birmingh'm, Northfield)||Davies, G. Elfed (Rhondda, E.)|
|Benn, Rt. Hn. Anthony Wedgwood||Carter-Jones, Lewis (Eccles)||Davies, Ifor (Gower)|
|Bidwell, Sydney||Clark, David (Colne Valley)||Davies, S. O. (Merthyr Tydvil)|
|Bishop, E. S.||Cocks, Michael (Bristol, S.)||Davis, Clinton (Hackney, C.)|
|Blenkinsop, Arthur||Cohen, Stanley||Davis, Terry (Bromsgrove)|
|Deakins, Eric||Jones, Gwynoro (Carmarthen)||Penttand, Norman|
|Dempsey, James||Jones, T. Alec (Rhondda, W.)||Perry, Ernest G.|
|Doig, Peter||Kaufman, Gerald||Prescott, John|
|Dormand, J. D.||Kinnock, Neil||Price, J. T. (Westhoughton)|
|Douglas, Dick (Stirlingshire, E.)||Lamond, James||Price, William (Rugby)|
|Duffy, A. E. P.||Latham, Arthur||Rankin, John|
|Dunn, James A.||Lawson, George||Rees, Merlyn (Leeds, S.)|
|Dunnett, Jack||Leadbitter, Ted||Roberts, Albert (Normanton)|
|Edwards, Robert (Bilston)||Leonard, Dick||Roberts, Rt. Hn. Goronwy (Caernarvon)|
|Edwards, William (Merioneth)||Lestor, Miss Joan||Roderick, Caerwyn E. (Br'c'n & R'dnor)|
|English, Michael||Lever, Rt. Hn. Harold||Rodgers, William (Stockton-on-Tees)|
|Evans, Fred||Lewis, Ron (Carliste)||Roper, John|
|Faulds, Andrew||Lipton, Marcus||Ross, Rt. Hn. William (Kilmarnock)|
|Fisher, Mrs. Doris (B'ham, Ladywood)||Lomas, Kenneth||Sheldon, Robert (Ashton-under-Lyne)|
|Fitch, Alan (Wigan)||McBride, Neil||Shore, Rt. Hn. Peter (Stepney)|
|Fletcher, Ted (Darlington)||McCartney, Hugh||Short, Rt. Hn. Edward (N 'c'tle-u-Tyne)|
|Foley, Maurice||McElhone, Frank||Short, Mrs. Renée (W'hampton, N. E.)|
|Ford, Ben||McGuire, Michael||Silkin, Hn. S. C. (Dulwich)|
|Fraser, John (Norwood)||Mackenzie, Gregor||Sillars, James|
|Gilbert, Dr. John||Mackintosh, John P.||Silverman, Julius|
|Ginsburg, David||McMillan, Tom (Glasgow, C.)||Skinner, Dennis|
|Gourlay, Harry||Mahon, Simon (Beotle)||Small, William|
|Grant, George (Morpeth)||Marks, Kenneth||Smith, John (Lanarkshire, N.)|
|Grant, John D. (Islington, E.)||Marquand, David||Spearing, Nigel|
|Griffiths, Eddie (Brightside)||Marsden, F.||Spriggs, Leslie|
|Griffiths, Will (Exchange)||Marshall, Dr. Edmund||Stallard, A. W.|
|Hamilton, William (Fife, W.)||Mason, Rt. Hn. Roy||Steel, David|
|Hamling, William||Meacher, Michael||Strang, Gavin|
|Hardy, Peter||Mellish, Rt. Hn. Robert||Swain, Thomas|
|Harper, Joseph||Millan, Bruce||Taverne, Dick|
|Harrison, Walter (Wakefield)||Milne, Edward (Blyth)||Thomas, Rt. Hn. George (Cardiff, W.)|
|Hart, Rt. Hn. Judith||Morgan, Elystan (Cardiganshire)||Thorpe, Rt. Hn. Jeremy|
|Heffer, Eric S.||Morris, Charles R. (Openshaw)||Tomney, Frank|
|Horam, John||Murray, Ronald King||Tuck, Raphael|
|Houghton, Rt. Hn. Douglas||Ogden, Eric||Urwin, T. W.|
|Hughes, Rt. Hn. Cledwyn (Anglesey)||O'Halloran, Michael||Wellbeloved, James|
|Hughes, Mark (Durham)||O'Malley, Brian||Whitehead, Phillip|
|Hughes, Robert (Aberdeen, N.)||Orme, Stanley||Willey, Rt. Hn. Frederick|
|Hughes, Roy (Newport)||Oswald, Thomas||Williams, W. T. (Warrington)|
|Janner, Greville||Owen, Dr. David (Plymouth, Sutton)||Wilson, Rt. Hn. Harold (Huyton)|
|Jenkins, Hugh (Putney)||Palmer, Arthur||Woof, Robert|
|Jenkins, Rt. Hn. Roy (Stechford)||Pannell, Rt. Hn. Charles|
|John, Brynmor||Pardoe, John||TELLERS FOR THE AYES:|
|Johnson, Walter (Derby, S.)||Parry, Robert (Liverpool, Exchange)||Mr. James Hamilton and|
|Jones, Dan (Burnley)||Pavitt, Laurie||Mr. John Golding.|
|Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)||Pendry, Tom|
|Adley, Robert||Cormack, Patrick||Harrison, Brian (Maldon)|
|Alison, Michael (Barkston Ash)||Costain, A. P.||Harrison, Col. Sir Harwood (Eye)|
|Alfason, James (Hemel Hempstead)||Critchley, Julian||Haselhurst, Alan|
|Astor, John||Crouch, David||Hastings, Stephen|
|Atkins, Humphrey||Dean, Paul||Hawkins, Paul|
|Awdry, Daniel||Deedes, Rt. Hn. W. F.||Hicks, Robert|
|Baker, Kenneth (St. Marylebone)||Dixon, Piers||Higgins, Terence L.|
|Balniel, Lord||Dykes, Hugh||Hiley, Joseph|
|Batsford, Brian||Eden, Sir John||Hill, James (Southampton, Test)|
|Beamish, Col. Sir Tufton||Edwards, Nicholas (Pembroke)||Holland, Philip|
|Bennett, Dr. Reginald (Gosport)||Elliott, R. W. (N'c'stle-upon-Tyne, N.)||Holt, Miss Mary|
|Biffen, John||Eyre, Reginald||Hornsby-Smith, Rt. Hn. Dame Patricia|
|Blaker, Peter||Farr, John||Howe, Hn. Sir Geoffrey (Reigate)|
|Boardman, Tom (Leicester, S. W.)||Fell, Anthony||Howell, David (Guildford)|
|Body, Richard||Fenner, Mrs. Peggy||Howell, Ralph (Norfolk, N.)|
|Boscawen, Robert||Fidler, Michael||Hunt, John|
|Bossom, Sir Clive||Finsberg, Geoffrey (Hampstead)||Hutchison, Michael Clark|
|Bowden, Andrew||Fisher, Nigel (Surbiton)||Iremonger, T. L.|
|Bray, Ronald||Fletcher-Cooke, Charles||James, David|
|Brinton, Sir Tatton||Fookes, Miss Janet||Jenkin, Patrick (Woodford)|
|Brown, Sir Edward (Bath)||Foster, Sir John||Jennings, J. C. (Burton)|
|Bruce-Gardyne, J.||Fowler, Norman||Jessely, Toby|
|Buchanan-Smith, Alick (Angus, N & M)||Fox, Marcus||Kaberry, Sir Donald|
|Bullus, Sir Eric||Gardner, Edward||King, Evelyn (Dorset, S.)|
|Burden, F. A.||Gibson-Watt, David||King, Tom (Bridgwater)|
|Butler, Adam (Bosworth)||Clyn, Dr. Alan||Kinsey, J. R.|
|Campbell, Rt. Hn. G.(Moray & Nairn)||Goodhew, Victor||Knox, David|
|Carlisle, Mark||Gorst, John||Langford-Holt, Sir John|
|Channon, Paul||Cower, Raymond||Legge-Bourke, Sir Harry|
|Chapman, Sydney||Gray, Hamish||Le Marchant, Spencer|
|Chataway, Rt. Hn. Christopher||Green, Alan||Loveridge, John|
|Chichester-Clark, R.||Griffiths, Eldon (Bury St. Edmunds)||Luce, R. N.|
|Churchill, W. S.||Grylls, Michael||McAdden, Sir Stephen|
|Clegg, Walter||Gummer, Selwyn||MacArthur, Ian|
|Cooke, Robert||Hall, Miss Joan (Keighley)||McCrindle, R. A.|
|McLanen, Martin||Page, John (Harrow, W.)||Stoddart-Scott, Col. Sir M.|
|McMaster, Stanley||Parkinson, Cecil (Enfield, W.)||Stokes, John|
|Macmillan, Maurice (Farnham)||Percival, Ian||Sutcliffe, John|
|McNair-Wilson, Michael||Pounder, Rafton||Tapsell, Peter|
|Madel, David||Powell, Rt. Hn. J. Enoch||Taylor, Sir Charles (Eastbourne)|
|Maginnis, John E.||Price, David (Eastleigh)||Taylor, Edward M. (G'gow, Cathcart)|
|Mather, Carol||Proudfoot, Wilfred||Taylor, Robert (Croydon, N. W.)|
|Maude, Angus||Pym, Rt. Hn. Francis||Tebbit, Norman|
|Maudling, Rt. Hn. Reginald||Quennell, Miss J. M.||Temple, John M.|
|Mawby, Ray||Raison, Timothy||Thatcher, Rt. Hn. Mrs. Margaret|
|Maxwell-Hyslop, R. J.||Ramsden, Rt. Hn. James||Thomas, John Stradling (Monmouth)|
|Meyer, Sir Anthony||Redmond, Robert||Thompson, Sir Richard (Croydon, S.)|
|Mills, Peter (Torrington)||Reed, Laurance (Bolton, E.)||Trafford, Dr. Anthony|
|Moate, Roger||Rhys Williams, Sir Brandon||Tugendhat, Christopher|
|Molyneaux, James||Roberts, Michael (Cardiff, N.)||Turton, Rt. Hn. Sir Robin|
|Money, Ernie||Roberts, Wyn (Conway)||Vaughan, Dr. Gerard|
|Monks, Mrs. Connie||Rossi, Hugh (Hornsey)||Waddington, David|
|Monro, Hector||Royle, Anthony||Walder, David (Clithero[...])|
|Montgomery, Fergus||Russell, Sir Ronald||Walker-Smith, Rt. Hn. Sir Derek|
|More, Jasper||Scott, Nicholas||Wall, Patrick|
|Morgan, Geraint (Denbigh)||Sharples, Richard||Ward, Dame Irene|
|Morgan-Giles, Rear-Adm.||Shaw, Michael (Sc'b'gh & Whitby)||Warren, Kenneth|
|Morrison, Charles (Devizes)||Shelton, William (Clapham)||Wilkinson, John|
|Mudd, David||Simeons, Charles||Wolrige-Gordon, Patrick|
|Murton, Oscar||Skett, T. H. H.||Wood, Rt. Hn. Richard|
|Neave, Airey||Soref, Harold||Wylie, Rt. Hn. N. R.|
|Nicholls, Sir Harmar||Spence, John||Younger, Hn. George|
|Normanton, Tom||Sproat, Iain|
|Oppenheim, Mrs. Sally||Stainton, Keith||TELLERS FOR THE NOES:|
|Osborn, John||Stanbrook, Ivor||Mr. Tim Fortescue and Mr. Keith Speed.|
|Owen, Idris (Stockport, N.)||Stewart-Smith, D. G. (Belper)|
|Page, Graham (Crosby)|
Further Amendment made: No. 16, in page 3, line 29, after "rules", insert:
, or of any changes in the rules,".—[Mr. Maudling.]
§ 6.15 p.m.
§ Mr. Deputy Speaker
It will be convenient to take at the same time Amendment No. 110, page 3, line 37, leave out from '1(4)' to end of line 39.
§ Mr. Steel
The Amendment was tabled in Committee, but because it was bracketed with many others we did not get a chance to consider it. I am therefore grateful for the opportunity to question the wording of subsection (2) which, after requiring the Secretary of State from time to time tolay before Parliament statements of the rules",goes on to say:… section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).There may well be arguments about why the Government should discriminate between non-citizens or different nationalities. But this is a very wide power and 500 it is potentially extremely discriminatory and unpleasant. If there is a good reason for the power being in the Bill, I should like to hear it. In the absence of hearing it, it would be preferable not to permit the Home Secretary to have power to make discrimination rules of the kind envisaged in the Clause.
This is a genuinely probing Amendment, and I hope that the Minister of State will be able to explain the purpose of subsection (2).
§ Mr. Sharples
I am grateful to the hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel) for explaining the purpose of the Amendment, because at first sight I was far from clear about its intent.
The Amendment could have the effect, although I would not be certain about it, of ruling out differentiation in the rules as between different classes of people who come to this country. I am sure that the House accepts that there should be differences in the rules as between people who come here to work, visitors, students and dependants. But I do not think that that is the point which the hon. Gentleman had in mind. I think that his point is whether there should be differentiation in the rules between people of different nationalities and people holding a different citizenship.
But differentiation already exists, and it is right that it should. For instance, 501 we admit Commonwealth citizens who come here as working holidaymakers. That privilege is not extended to aliens. Many young Australians and new Zealand people, in particular, avail themselves of this concession. It is absolutely right that this special privilege should be available to young people from the Commonwealth. It should be possible to discriminate in this way without being unfair, and that is the purpose of the Clause.
§ Mr. Merlyn Rees
In the run-up to the General Election, when the Conservative Party was laying down its approach to the question of immigration, it was said that there would be uniformity in the immigration laws and that aliens and Commonwealth citizens would be treated in exactly the same way. The Minister of State offers as justification for writing the words "uniform provision" in to Statute law the fact that the Government want to provide for doing precisely the opposite of what they argued before the election.
I wish to make a more prosaic point. The Minister of State has justified inclusion of the word "uniform" in the phrase "uniform provision" purely on the ground of being able to distinguish between Commonwealth citizens and aliens. He says that there is a distinction between the treatment of students from the Commonwealth and students from elsewhere. Could not the wording of the Bill be read in a completely different way? It seemed to us that the hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel) had a point in his Amendment even if the precise way in which he chose to deal with it might lead to the problems to which the Minister referred. Would the hon. Gentleman consider whether we require provision in a Statute to the effect that a Clauseshall not be taken to require uniform provision to be made"?What is the reason for this curious provision? This is a small point, but perhaps it can be considered before Report.
§ Mr. Sharples
I should not like to give an assurance on this point. It is right that it should be made clear in the Bill that differentiation can be made. We are often criticised for not spelling things out in Bills. In this case we have spelt 502 out the matter. There can be differentiation and it is right that there should be differentiation. The Amendment would force the Government to bring about absolute uniformity, and I do not think the House would wish that to happen.
§ Mr. David Steel
I accept what the Minister of State has said about the effect, in particular, of Amendment No. 109. On Amendment No. 110, what I said earlier about maintaining distinctions between people who come from certain countries as distinct from others—for example, people who come here on working holidays—underlines the basic flaw in the Bill. The Government are maintaining many of the illogicalities while proposing to introduce uniform provisions.
These distinctions stem from the fact that we are not to have a citizenship Bill to treat all non-citizens alike. This flaw cannot be put right in the way that I propose in the Amendment. I maintain strong objection to the underlying philosophy of the Clause, but I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
Amendment made: No. 17, in page 3, line 39, at end insert:
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances and lay a further statement before Parliament accordingly.—[Mr. Maudling.]
§ Mr. S. C. Silkin
I beg to move Amendment No. 19, in page 4, line 24, leave out from 'good' to end of line 26.
§ Mr. Deputy Speaker
It will be convenient also to discuss the following:
Amendment No. 28, Clause 5, page 7, line 2, at end insert:Provided that that other person and his spouse (if any) so electAmendment No. 29, Clause 5, page 7, line 4, leave out 'eighteen' and insert 'sixteen'.
Amendment No. 30, Clause 5, page 7, line 5, after 'her', insert 'husband and'.
503 Amendment No. 31, Clause 5, page 7, line 6, leave out 'eighteen' and insert 'sixteen'.
§ Mr. Silkin
One of the more unpleasant features of this disreputable Bill, which has been most widely resented, is the power to deport members of the family of a person who is deported. It is distasteful, to say the least, to visit the sins of the father on the child or wife of the husband. It is distasteful to provide by law that because of the father's sins the child must not merely leave our shores but must never return—because that is the meaning of deportation—even though he may leave as a babe-in-arms and may wish to return as a responsible adult. It is distasteful to those who have committed no offence and broken no condition that they should be branded as deportees. It is distasteful that this should apply even to the separated wife or the wholly independent child.
We pressed this argument in Committee, and, in later Amendments, the Home Secretary has moved a limping half step towards us. He has proposed that members of the family should avoid the stigma of deportation by having the opportunity to leave voluntarily before they are deported. We regard that concession—if that is the right word—as wholly inadequate.
In Committee, the Opposition urged the Government to allow a right of appeal on the merits—a right which the Bill does not allow. We urged that the family should have the right to decide for themselves whether to leave with the deportee or to stay behind. We pressed the case of the wife and child who no longer had the slightest contact with or dependency on the deportee. But our proposals to deal with these cases fell on totally deaf ears.
The philosophy of the Government and of the Home Secretary throughout our discussions on the Bill is not normally heard from the lips of members of the Conservative Party. The philosophy appears to be to trust the gentleman in Whitehall. That is the Government's only solution to the problem—indeed, it is their only solution to practically every problem which has arisen under the Bill. The right hon. Gentleman seems to have a pathological fear of letting people decide for themselves and of independent 504 tribunals, as we witnessed last night when we discussed new Clause No. 2.
The Opposition's position about family deportation is clear. We put forward three specific choices. The first is to get rid of the concept of family deportation. That is dealt with in Amendment No. 19. The Government's fear that deportation will leave a trail of destitute families in this country is utterly unrealistic, and they have produced a distasteful remedy to deal with a miniscule problem.
Our second proposed choice is to give the members of the family a right of election. That is dealt with in Amendment No. 28. When it is in the best interests of a family that all its members should go, the parents would elect whether they should all go. With the right of election there should be equality between the sexes. The Bill empowers the wife but not the husband of a deportee to be deported. If the right to elect is given we see no reason for the distinction. That is dealt with by our Amendment No. 30.
Again, with the right of election, we see no reason whatever for including children over the age of 16. At present the Bill includes those up to 18 years of age, an age at which they will frequently be wholly independent of their parents, perhaps even married and living separate lives. Amendments 29 and 31 deal with that. That is our second policy on election. Our third policy is to provide a right of appeal and Amendment 97 deals with that. That Amendment is not being discussed now but will be discussed later.
We put forward these proposals in Committee but up to now they have all been rejected. There has been no election, no appeal—the gentlemen in Whitehall are to decide. "We can safely leave it to them", say the Government. "If the deportee's family is not satisfied they can always complain to their Member of Parliament." The privilege of a Member of Parliament to take up his constituency problems is a valuable one and one from which I do not wish to derogate but it must not be used as a cloak for giving the gentlemen in Whitehall power to decide the future of the lives of people who have committed no other fault than to be the wife or child of one who is subject to deportation.
505 I invite the right hon. Gentleman to cast aside his phobias about appealing to independent tribunals and matters of that kind and to discard what we believe is the obnoxious power to regulate the lives of others. If he does that he will not lose in stature or in respect, in this House or in the country.
§ 6.30 p.m.
§ Mr. Maudling
I listened with great interest to what the hon. and learned Member for Dulwich (Mr. S. C. Silkin) had to say. We debated this extremely difficult problem at some length in Committee. We are all aware of the problem which arises when a man is deported and abandons his family, leaving them here to be a charge on the country in circumstances which may be bad for them and the community. We therefore put forward this power, which is modelled on Canadian legislation.
§ Mr. Maudling
I thought the House would be interested, that is all. It is operated in Canada and we modelled the power on that. In Committee I said—and this is important—that I saw that deportation carried a stigma which as the hon. and learned Gentleman has said is permanent. I therefore said that we would certainly never deport anyone who was prepared to go of their own free will. I am willing to continue that undertaking. Deportation takes place only in circumstances where the people concerned say that they will not go and therefore it is decided that, unfortunately, we have to insist on their going.
The hon. and learned Gentleman has put forward four points: one that we should abolish the provision altogether; secondly, that we should give a right of election; third was the point about the age of children, and fourth the point about the right of appeal. The first two are really the same thing. If we give people the power to elect we are taking away the power of deportation. I am afraid that, for reasons I have given, I do not feel that I could accept that.
On the question of the age of children, 18 or 16, there are two reasons behind the age of 18. First, 18 is now accepted as the age of majority and 18 is the age 506 used for the purpose of allowing dependants to come into this country. Therefore it seems right to choose the age of 18 when dealing with this matter. There will only be a small number of cases of people living with a parent who has to be deported.
§ Mr. Merlyn Rees
Does the right hon. Gentleman mean that this is a change which is in the Bill? Do I not recall that, under the 1962 Act, a statutory right was given to Commonwealth wives to enter as well as to children of 16 and under? It was a discretionary right above the age of 16 and on that occasion the Government of the day took 16 as being the age, not 18.
§ Mr. Maudling
It is, yes. It is under the draft rules. For these reasons I do not think that I can accept the proposals.
I turn to the question of right of appeal—
§ Mr. Powell
As my right hon. Friend is leaving that point, would he be good enough to confirm a matter raised by an expression which fell from him? He referred to the stigma of deportation under this power as being permanent. I wonder whether he would confirm and thus put on the record a point made to me by the Minister of State arising out of a debate in Committee, namely, that when a person who is deported under the age of 18 reaches the age of 18 the deportation order thereupon ceases to have effect and is void in relation to that person. I thought that this might be an appropriate point for him to put that on the record if I have correctly apprehended him.
§ Mr. Maudling
I think that my right hon. Friend is correct on that, but if there is any chance that he is incorrect I will let him know later. I was following what the hon. and learned Member had said about the serious nature of deportation and contrasting that with people leaving voluntarily.
I turn now to appeals. This was discussed in great detail in Committee, the point being that these are individual 507 cases of family circumstances where decisions are hard to make and where different circumstances have to be taken into account and judged. I used the argument then, and I think that it was a good one, that on the whole the sort of administration we get from the Home Department is and has been over many years, humane and enlightened. The Home Department is well equipped to take such decisions.
I have been thinking further about this, however, and I recognise the strength of feeling. It is not a matter on which I want to have a division of opinion in the House if it can be avoided.
I have decided that what I would like to do is to introduce at a later stage—I am afraid that it will have to be in another place—the right of appeal. I will have to draft the wording. It will be a right of appeal in cases of family deportation, direct to the appeal tribunal. I am sorry that I cannot put an Amendment down today but it will take some drafting. I am willing to give that undertaking, to introduce a right of appeal in these cases at a later stage.
§ Mr. Bidwell
Those of us who are experienced in these affairs because of our deep involvement will be—not delighted, because we are not delighted about the Bill or anything arising from it—but at any rate we feel a sense of gratitude to the Home Secretary because of what he has just said. I cannot better the general moral argument put forward by my hon. and learned Friend the Member for Dul-wich (Mr. S. C. Silkin), but I would like to draw the attention of the House to difficulties that can arise and which I am sure will be sorted out under the appeals machinery.
There is this new concept of patrialty whereby part of a family will be deportable and part of the family non-deport-able. We could have a situation where there were six children in a family, half of whom, or an even greater number, were born in this country and therefore have automatically acquired the status of patrialty. The Home Secretary has no statutory rights to deport those children.
It may happen that circumstances will arise when it would be preferable, if the breadwinner is leaving the country, that 508 his patrial and non-patrial children should go with him. If there was a sense of family unity, if the children were young enough, no doubt that is what would happen. It is precisely because of that that I am delighted that the right hon. Gentleman has promised some appeals machinery. It would be specifically that kind of entanglement which could become disentangled in the process of an appeals procedure.
§ Mr. Arthur Davidson (Accrington)
Like my hon. Friend the Member for Southall (Mr. Bidwell), I, too, if not delighted, am exceptionally pleased—I do not know which is the better or the worse—that the Home Secretary has announced today that he is considering a right of appeal in family deportation cases. If he has done nothing else he has ensured that speeches from this side of the House will be considerably shorter than otherwise they would have been, and I am sure that it will be a merciful relief for him not to have to listen to such lengthy speeches as were made in Committee on this point.
The whole concept of family deportation is by its very nature an objectionable one, because we would be deporting from this country, and acting in an arbitrary way against, people who themselves had committed no offence at all, who themselves had not offended in any way against this country and whose only offence is that they happen to be members of the same family as that of the deportee who himself, presumably, committed some sort of offence.
I have never understood why the Home Secretary stood so rigidly and firmly against appeal in this sort of case. Even the lullaby, low-temperature style of the Home Secretary was not able to convince hon. Members that what is basically an inhumane measure is somehow humane. When he was talking about family deportation and no stigma attached to it he made it seem so attractive that I was positively aching to be supported by the Home Secretary and feeling that it was some sort of advancement of my career. I am sorry that that will no longer take place and that the appeal procedure which he proposes will prevent that from taking its natural course! However, all of us on this side of the House are most grateful to the Home Secretary for giving way on this point, 509 and I do not think it right to detain the House any longer.
§ Mr. Kaufman
My hon. Friends can thank the Home Secretary for pausing to take breath while beating his wife. I contend that he ought not to be beating his wife at all and that this Clause ought not to be in the Bill at all, and that some of the Amendments which my hon. Friends have proposed are still very important, because anomalies arise and those anomalies will not otherwise be dealt with at this present stage.
The Home Secretary appeared slightly puzzled when he said that this age limit was based upon Canadian law and some of us said "So what?" He said that he thought that we might be interested to know. If he is to be so informative as that, one would hope that at an appropriate moment during this stage of the Bill he will tell us what parts of the Bill are based on the laws of Nazi Germany—as the right hon. Member for Wolverhampton, South-West (Mr. Powell) pointed out on Second Reading—and which parts of the Bill are based on those of South Africa.
§ Mr. Maudling
As I am sure the hon. Member is genuinely seeking information, let me tell him that no part of this Bill has anything to do with the laws of Nazi Germany.
§ Mr. Kaufman
I refer the Home Secretary to his right hon. Friend's exceptionally powerful speech on Second Reading, a speech which convinced me if not him.
There are anomalies with regard to this subsection and the subsection which follows, and I trust the Home Secretary will clear them up if he is really to allay our fears. The age limit is a very important one, because if it is not lower than 18 we could be placed in a situation of exceptional anomaly. Subsection (6) says:Without prejudice to the operation of subsection (5) above, a person who is not patrial shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence …That means that a 17-year-old person is liable to be deported; but he is regarded as a member of a family till he is 18. Therefore, as I understand it, and interpret 510 it—and I shall be very grateful to be corrected if I am wrong—it will be possible, if someone aged between 17 and 18 has committed a deportable offence, for his brothers and sisters and parents to be deported along with him. I shall be grateful to the Home Secretary if he can tell me that this is not so. I cannot find that it is not so. If it is so, it is clearly intolerable, and verbal assurances in this House would make it no more tolerable. I hope that, for that reason alone, we will vote on it.
Then there is a second thing. In answer to my hon. Friend for Wolverhampton, North-East (Mrs. Renée Short)—and this has been referred to again today by my hon. Friend the Member for Southall—it has been said that it is possible for a non-patrial parent to have a patrial child. It has been confirmed in this House, in answer to a Question by my hon. Friend, that a non-patrial woman who has a child here has a child which becomes automatically patrial. I think that the significance of this has not been fully understood. In the normal biological course of events it is possible for a non-patrial to come into this country on a one-year ticket of leave and, during that one year, for his wife to give birth to a child who is a patrial and who will be a patrial if he is sent home at the end of that year.
We could have a situation in which we could have a non-patrial father and a non-patrial mother who are deported or who are ordered to be deported and who have here in this country a child, an infant child, a babe in arms, only months old, unable to speak, who is patrial and not liable to deportation.
§ Dame Patricia Hornsby-Smith (Chislehurst)
Would the hon. Gentleman not agree that this is a problem we have had to deal with throughout immigration control and, with refugees who came here and whose children were born here? Some have been naturalised. It is not a new problem.
§ Mr. Kaufman
Of course, the right hon. Lady is perfectly right about that, but the right hon. Lady does not, perhaps, remember that there were refugees who fled from oppression in their countries, were liable to deportation, and 511 that, and in any case, we are not dealing with a refugee Clause but a deportation Clause. That is why I am concerned about it.
We could have that situation—of an infant child, only several months old, not liable to deportation. Would it be possible for the parents of that child, prior to their deportation, to say, "We are not going to have our child deported. We are not going to take our child with us. The child has a right to be here. Since it cannot speak for itself we are speaking for it, and we are going to leave it here"? The Home Secretary spoke about the horrors of children being a charge on the State. Here is a child who would be a charge on the State—a child left here under this ludicrous and anomalous provision. I should like an explanation of what would happen. Who would care for the child if his parents left him here, as they have a right to do?
Although the Home Secretary has made a concession and we are grateful for his concession, I trust that it will be agreed, in the context of the total unacceptability of the Bill and of the Clause, that, even in the light of the concession, the Home Secretary ought to tell us, when he replies to this debate, just how he will deal with the two particular anomalies which I have spoken about.
§ Mr. Clinton Davis (Hackney, Central)
My hon. Friend the Member for Manchester, Ardwick (Mr. Kaufman) has made a point of great force. I suppose that we are expected to be eternally grateful to the right hon. Gentleman for the concession which he has made, but the fact remains that this is an odious concept which should never have appeared in the Bill in the first place. Hardly anything has caused more disquiet amongst those who are actively concerned with community relations than family deportation. The fact that there will be a right of appeal against the decision to someone more independent than the Home Secretary is useful but, nevertheless, the concept of family deportation is still one which will cause grave disquiet amongst the immigrant community.
In Committee, the Home Secretary referred to "supervised departure" instead of deportation, but this euphemism does 512 not carry much weight. It does not cure the evil. If a person does not want to go, he will be made to go. Whether it is called deportation or supervised departure does not matter, the effect is the same, although to some extent the stigma is reduced.
Is it intended that the right of appeal should apply to all persons, whether they are here at the time the Bill comes into force, or whether they enter the country later? The Secretary of State drew distinctions of that character in respect of other matters where concessions were made in Committee. I hope that it is to be a right of appeal to all persons who fall into this category.
The proposition advanced by the Home Secretary this afternoon runs completely counter to everything he has said in this regard in Committee, and no doubt about other matters relating to appeals. He said that certain matters were not justiciable. Perhaps he will now reconsider the whole argument. If this is now to be a justiciable matter, whereas it was not justiciable before, perhaps the other matters to which he referred in Committee will now become justiciable. That was always a patently nonsensical argument, and it took us hours of pummelling away at the Home Secretary to make him see reason—eventually with some degree of success.
I am not quite so carried away as my hon. Friend the Member for Southall (Mr. Bidwell), who was delighted and elated by the concession. I do not think that it is anything to be elated about. It should have been granted in the first instance in Committee. The right hon. Gentleman should have seen the force of the argument but, much more importantly, I hope that he will see the force of the argument about the whole evil design of family deportation, which has nothing to recommend it and should be no part of the Bill.
§ Mr. Bidwell
I am horrified at the concept of family deportation, but I suggest to my hon. Friend that this is a way by which people can be made aware of this horrific concept. So it is a matter of some pleasure to me if my hon. Friend does not feel so elated about the concession as I do.
§ Mr. Davis
I did not understand precisely how the concession 513 affected my hon. Friend's thinking on this. I am not elated or delighted, and I do not congratulate the right hon. Gentleman. He does not deserve congratulations. He has just happened, perhaps by chance, to listen to some degree of reason from this side of the House, but the horrific concept of family deportation is not cured.
§ Mrs. Doris Fisher (Birmingham, Ladywood)
I follow the sentiments of my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis). Family deportation is a serious matter, especially in a forward-looking country like Great Britain where facilities are available to enable women to pursue in their own right trades and professions and to be successful in them. The original decision of the Home Secretary, that a woman who was able to maintain her children would have to leave the country if her husband were deported for a misdemeanour, even though husband and wife might have parted many months ago, was a hard one. At last the Home Secretary has seen reason on this.
Many children have to be taken into the care of the local authority for a variety of reasons. One reason is that the parent is not a fit person to care for the child. The law provides that these children should be taken care of through child welfare associations and other organisations. Similarly, there are immigrants who are not good parents and whose children are taken from them and put into the care of the local authority. Does the Home Secretary envisage that a local authority will be able to make an appeal on behalf of such a child who is taken into care? I fully understand that the child is a charge upon the State, but on grounds of humanity, it having been decided that the parent is not a fit person to look after the child, is it desirable that the child should be deported with the father?
§ Mr. Maudling
If I may briefly reply to the debate, the tone of the hon. Members for Manchester, Ardwick (Mr. Kaufman) and Hackney, Central (Mr. Clinton Davis) almost tempts me to say that I am not encouraged to make what are called concessions to the other side of the House. But I do not regard myself as making a concession. That is not the right way of going about these things, nor do I propose changes to the Bill to 514 earn the congratulations of hon. Members. I propose changes to the Bill if I am persuaded by the arguments, and if, as in this case, I am persuaded to act as much as possible in the interests of the people concerned. That is why I have agreed to introduce a provision for appeal.
The hon. Member for Ardwick spoke about the brother of someone committing an offence being deported. The answer is in Clause 5(4) and (5).
§ Mr. Kaufman
I am sorry, but I do not find the answer there. I found my question there. I should be grateful if the right hon. Gentleman would elaborate on this.
§ Mr. Maudling
Family deportation is for people who belong to a family. A family consists of a man, his wife and his children. There is nothing about brothers there. If the hon. Gentleman studies those subsections, he will find that what I say is right.
I come next to the important question raised by the hon. Member for Hackney, Central: does this apply only to people already here or to everyone? It will apply to everyone. There is no distinction between people here now and those coming later.
I turn to the question of individual cases raised today by the hon. Members for Hackney, Central, and for Southall (Mr. Bidwell) and by the hon. Lady the Member for Birmingham, Ladywood (Mrs. Doris Fisher). There will be individual cases in which, clearly, it would be wrong to think of deporting people, for example, the case of a small baby who might be left behind if the parents were sent back or the case of the wife who can stay and support herself and her children; in those cases, certainly not.
We discussed this difficulty in Committee. There will be cases in which it will be right to insist upon people going and there will be others in which it will not. The argument was about who should make the decision. I said in Committee that I thought that it should be for the Home Secretary of the day, and I still think that there is a respectable argument for that. However, in view of the weight of opinion on these matters, I am prepared to say that these decisions, 515 which must be made—when a man is deported, family problems do arise, and one must do the right thing—should go to the tribunal. No doubt, when the tribunal is considering such questions, anything which a local authority might have to say would very much weigh with it.
I think that that is the right way to deal with the difficult cases which will arise, as far as we can, in the interests of all the individuals concerned.
§ Mr. Merlyn Rees
In Committee, we argued that this method of dealing with families arose because of the change from employment vouchers to work permits, since under employment vouchers families had a stautory right of entry. As the right hon. Gentleman was speaking, I reached my own past experience and I must say that I cannot recall much precisely on this point. Are there many aliens who leave their families behind if they are deported? There is no stautory right for aliens under the existing law. Are there many examples, or is it that the Home Secretary is not so much concerned with what happens in regard to a small number of aliens but is expecting a larger problem with Commonwealth citizens?
There is deportation of Commonwealth citizens now. Is there a large number of Commonwealth citizens going home and leaving their families here? One imagines that among Asians, who have a powerful sense of family group, the families would go with them anyway. Is there any evidence on which the Home Secretary is working?
§ Mr. Maudling
This is not a new problem arising out of the Bill. There are cases of aliens and Irish and Commonwealth people at present. This is to deal with a problem of which we have knowledge and experience, not a problem which arises because of the new immigration system under the Bill.
§ Mr. S. C. Silkin
We welcome what the right hon. Gentleman has done. He says that he is not making a concession, and I accept that, but he has acceded to the substantial arguments which we put in Committee to the effect that there ought to be an independent right of appeal in matters of this kind if one is to have the concept of family deportation at all.
516 As my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) pointed out, in informing us of his decision the right hon. Gentleman is resiling from the powerful arguments which he advanced in Committee when he took the view that these matters were not, as he put it, justiciable matters but were matters for the Executive, matters to be raised by Members of Parliament, and that the system which he then upheld was perfectly sound.
Speaking for myself, having heard what the right hon. Gentleman had to say today in announcing his decision, I wondered why we had to have an argument for an hour and a half last night when the right hon. Gentleman did not have a single friend in the House, being surrounded by those who took a view entirely different from his on this very question in relation to the political side ofconducive to the public good".
§ Mr. Charles Fletcher-Cooke (Darwen)
It was a good point, but it was quite different from the point on which we are now.
§ Mr. Silkin
The hon. and learned Gentleman was not here when I opened this debate and spoke about the right hon. Gentleman's phobia about tribunals. I am glad that he has now resiled a little from it, and I am led to hope that, perhaps, he may succumb to the eloquence of his hon. and learned Friend last night when he has had time to think about it, just as he succumbed to our eloquence in Committee after he had time to think about that.
However, having heard the right hon. Gentleman's reply and the whole of this debate, I remain unconvinced that the power of family deportation is a necessary power for one to have, bearing in mind how distasteful it is and how many people both inside and outside the House regard it as utterly objectionable.
My hon. Friend the Member for Manchester, Ardwick (Mr. Kaufman) raised again the point which was made very forcibly in Committee about the anomalies which will result—for example, the patrial child who will not be liable to deportation—heaven knows what may happen to him—while his non-patrial brother will be liable to deportation. If 517 there are these families about which the right hon. Gentleman spoke in which a person to be deported decamps and leaves his family as a charge on the community, we shall, apparently, if the Clause remains, have a situation in which the patrial child will stay here to be a charge on the community and his elder or younger bother who is non-patrial will be deported. What greater nonsense could one have than that?
The right hon. Gentleman said that the number of cases was small. In reply to my hon. Friend the Member for Leeds, South (Mr. Merlyn Rees), he said, as I understood him, that it was not expected that there would be any special new problem arising out of the Bill; it was a problem which had always existed. As far as our knowledge on this side of the House goes of the number of cases in which this problem has arisen in the past, my hon. Friend can think of none at all. No doubt, there will be the occasional marginal case, but in the vast majority people who are to be deported will want
§ to take their families with them. They will not want to leave them behind unless those families are already independent, separated from them, or earning their own living—the very sort of case in which, under the appeal procedure which the right hon. Gentleman has now announced, they will probably make good their case for remaining here in any event.
§ So what is the purpose of this new provision introduced by the right hon. Gentleman in his Bill? What is there that is so important that it outweighs the distasteful nature of this provision which has caused so much offence both in the House and outside? The right hon. Gentleman has not explained that either here or in Committee. In the circumstances, I cannot but invite my right hon. and hon. Friends to divide on the Amendment.
§ Question put. That the Amendment be made:—
§ The House divided: Ayes 155, Noes 186.519
|Division No. 378.]||AYES||[7.8 p.m.|
|Albu, Austen||Faulds, Andrew||[...] Kenneth|
|Allaun, Frank (Salford, E.)||Fisher, Mrs. Doris (B'ham, Ladywood)||Lyon. Alexander W. (York)|
|Archer, Peter (Rowley Regis)||Fitch, Alan (Wigan)||McBride, Neil|
|Armstrong, Ernest||Fletcher, Ted (Darlington)||McCartney, Hugh|
|Ashton, Joe||Foley, Maurice||McElhone, Frank|
|Barnett, Joel||Fraser, John (Norwood)||McGuire, Michael|
|Beaney, Alan||Gilbert, Dr. John||Mahon, Simon (Bootle)|
|Bidwell, Sydney||Ginsburg, David||Marks, Kenneth|
|Bishop, E. S.||Gourlay, Harry||Marquand, David|
|Boardman, H. (Leigh)||Grant, George (Morpeth)||Marsden, F.|
|Booth, Albert||Grant, John D. (Islington, E.)||Marshall Dr. Edmund|
|Bottomley, Rt. Hn. Arthur||Griffiths, Eddie (Brightside)||Mason, Rt. Hn. Roy|
|Buchan, Norman||Hamilton, James (Bothwell)||Meacher, Michael|
|Buchanan, Richard (G'gow, Sp'burn)||Hamilton, William (Fife, W.)||Millan, Bruce|
|Callaghan, Rt. Hn. James||Hamling, William||Milne, Edward (Blyth)|
|Campbell, I. (Dunbartonshire, w.)||Hannan, William (G'gow, Maryhill)||Morgan, Elystan (Cardiganshire)|
|Carter, Ray (Birmingh'm, Northfield)||Hardy, Peter||Morris, Charles R. (Openshaw)|
|Carter-Jones, Lewis (Eccles)||Harper, Joseph||Murray, Ronald King|
|Clark, David (Colne Valley)||Harrison, Walter (Wakefield)||Ogden, Eric|
|Cocks, Michael (Bristol, S.)||Horam, John||O'Halloran, Michael|
|Cohen, Stanley||Houghton, Rt. Hn. Douglas||O'Malley, Brian|
|Corbet, Mrs. Freda||Hughes, Rt. Hn. Cledwyn (Anglesey)||Orme, Stanley|
|Cox, Thomas (Wandsworth, C.)||Hughes, Mark (Durham)||Oswald, Thomas|
|Crawshaw, Richard||Hughes, Robert (Aberdeen, N.)||Parry, Robert (Liverpool, Exchange)|
|Crosland, Rt. Hn. Anthony||Hughes, Roy (Newport)||Pavitt, Laurie|
|Cunningham, G. (Islington, S. W.)||Janner, Greville||Pendry, Tom|
|Dalyell, Tam||Jenkins, Rt. Hn. Roy (Stechford)||Pentland, Norman|
|Davidson, Arthur||John, Brynmor||Perry, Ernest G.|
|Davies, Derail (Llanelly)||Johnson, Walter (Derby, S.)||Prescott, John|
|Davies, G. Elfed (Rhondda, E.)||Jones, Dan (Burnley)||Price, J. T. (Westhoughton)|
|Davies, Ifor (Gower)||Jones, Rt. Hn. Sir Elwyn (W. Hani, S.)||Price, William (Rugby)|
|Davies, S. O. (Merthyr Tydvil)||Jones, Gwynoro (Carmarthen)||Rankin, John|
|Davis, Clinton (Hackney, C.)||Jones, T. Alec (Rhondda, W.)||Rees, Merlyn (Leeds, S.)|
|Davis, Terry (Bromsgrove)||Kaufman, Gerald||Roberts, Albert (Normanton)|
|Dell, Rt. Hn. Edmund||Kinnock, Neil||Roberts, Rt. Hn. Goronwy (Caernarvon)|
|Dempsey, James||Lamond, James||Roderick, Cacrwyn E. (Br'c'n & R'dnor)|
|Doig, Peter||Latham, Arthur||Roper, John|
|Dormand, J. D.||Lawson, George||Ross, Rt. Hn. William (Kilmarnock)|
|Douglas, Dick (Stirlingshire, E.)||Leadbitter, Ted||Sheldon, Robert (Ashton-under-Lyne)|
|Duffy, A. E. P.||Leonard, Dick||Shore, Rt. Hn. Peter (Stepney)|
|Dunnett, Jack||Lestor, Miss Joan||Short, Rt. Hn. Edward (N'c'tle-u-Tyne)|
|Edwards, Robert (Bilston)||Lewis, Arthur (W. Ham N.)||Short, Mrs. Renée (W'hampton, N. E.)|
|Edwards, William (Merioneth)||Lewis, Ron (Carlisle)||Silkin, Hn. S. C. (Dulwich)|
|Evans, Fred||Lipton, Marcus||Sillars, James|
|Silverman, Julius||Swain, Thomas||Whitehead, Phillip|
|Skinner, Dennis||Taverne, Dick||Willey, Rt. Hn. Frederick|
|Small, William||Thomas, Rt. Hn. George (Cardiff, W.)||Williams, W. T. (Warrington)|
|Smith, John (Lanarkshire, N.)||Thomson, Rt. Hn. G. (Dundee, E.)||Wilson, Rt. Hn. Harold (Huyton)|
|Spearing, Nigel||Tomney, Frank||Woof, Robert|
|Spriggs, Leslie||Tomey, Tom|
|Stallard, A. W.||Urwin, T. W.||TELLERS FOR THE AYES:|
|Steel, David||Weitzman, David||Mr. John Golding and|
|Stonehouse, Rt. Hn. John||Wellbeloved, James||Mr. James Dunn.|
|Adley, Robert||Goodhart, Philip||Neave, Airey|
|Alison, Michael (Barkston Ash)||Goodhew, Victor||Normanton, Tom|
|Allason, James (Hemel Hempstead)||Gower, Raymond||Oppenheim, Mrs. Sally|
|Astor, John||Gray, Hamish||Osborn, John|
|Atkins, Humphrey||Green, Alan||Owen, Idris (Stockport, N.)|
|Awdry, Daniel||Griffiths, Eldon (Bury St. Edmunds)||Page, John (Harrow, W.)|
|Baker, Kenneth (St. Marylebone)||Gummer, Selwyn||Parkinson, Cecil (Enfield, W.)|
|Barber, Rt. Hn. Anthony||Hall, Miss Joan (Keighley)||Percival, Ian|
|Batsford, Brian||Harrison, Brian (Madlon)||Pounder, Rafton|
|Beamish, Col. Sir Tufton||Harrison, Col. Sir Harwood (Eye)||Powell, Rt. Hn. J. Enoch|
|Bennett, Dr. Reginald (Gosport)||Haselhurst, Alan||Proudfoot, Wilfred|
|Biffen, John||Hastings, Stephen||Pym, Rt. Hn. Francis|
|Biggs-Davison, John||Hicks, Robert||Quennell, Miss J. M.|
|Blaker, Peter||Higgins, Terence L.||Raison, Timothy|
|Boardman, Tom (Leicester, S. W.)||Hiley, Joseph||Ramsden, Rt. Hn. James|
|Boscawen, Robert||Hill, James (Southampton, Test)||Redmond, Robert|
|Bossom, Sir Clive||Holland, Philip||Reed, Laurance (Bolton, E.)|
|Bowden, Andrew||Holt, Miss Mary||Rhys Williams, Sir Brandon|
|Boyd-Carpenter, Rt. Hn. John||Hornby, Richard||Roberts, Michael (Cardiff, N.)|
|Bray, Ronald||Hornsby-Smith, Rt. Hn. Dame Patricia||Roberts, Wyn (Conway)|
|Brinton, Sir Tatton||Howe, Hn. Sir Geoffrey (Reigate)||Rossi, Hugh (Hornsey)|
|Bruce-Cardyne, J.||Howell, David (Cuildford)||Rost, Peter|
|Buchanan-Smith, Alick (Angus, N & M)||Howell, Ralph (Norfolk, N.)||Royle, Anthony|
|Bullus, Sir Eric||Hunt, John||Russell, Sir Ronald|
|Burden, F. A.||Hutchison, Michael Clark||Scott, Nicholas|
|Butler, Adam (Bosworth)||Iremonger, T. L.||Sharples, Richard|
|Campbell, Rt. Hn. G.(Moray & Narm)||James, David||Shaw, Michael (Sc'b'gh & Whitby)|
|Carlisle, Mark||Jenkin, Patrick (Woodford)||Shelton, William (Clapham)|
|Channon, Paul||Jennings, J. C. (Burton)||Simeons, Charles|
|Chapman, Sydney||Jessel, Toby||Sinclair, Sir George|
|Chataway, Rt. Hn. Christopher||Kaberry, Sir Donald||Skeet, T. H. H.|
|Chichester-Clark, R.||King, Tom (Bridgwater)||Soref, Harold|
|Churchill, W. S.||Kinsey, J. R.||Speed, Keith|
|Clarke, Kenneth (Rushcliffe)||Knox, David||Spence, John|
|Clegg, Walter||Langford-Holt, Sir John||Sproat, Iain|
|Cooke, Robert||Legge-Bourke, Sir Harry||Stainton, Keith|
|Cooper, A. E.||Le Marchant, Spencer||Stewart-Smith, D. G. (Belper)|
|Cormack, Patrick||Loveridge, John||Stoddart-Scott, Col. Sir M.|
|Costain, A. P.||Luce, R. N.||Tapsell, Peter|
|Critchley, Julian||McAdden, Sir Stephen||Taylor, Edward M. (G'gow, Cathcart)|
|Crouch, David||MacArthur, Ian||Taylor, Robert (Croydon, N. W.)|
|Dean, Paul||McCrindle, R. A.||Tebbit, Norman|
|Deedes, Rt. Hn. W. F.||McLaren, Martin||Temple, John M.|
|Dixon, Piers||McMaster, Stanley||Thomas, John Stradling (Monmouth)|
|du Cann, Rt. Hn. Edward||Macmillan, Maurice (Farnham)||Trafford, Dr. Anthony|
|Dykes, Hugh||McNair-Wilson, Michael||Tugendhat, Christopher|
|Edwards, Nicholas (Pembroke)||Maginnis, John E.||Turton, Rt. Hn. Sir Robin|
|Elliot, Capt. Walter (Carshalton)||Mather, Carol||Vaughan, Dr. Gerard|
|Elliott, R. W. (N'c'tlie-upon-Tyne. N.)||Maude, Angus||Waddington, David|
|Eyre, Reginald||Maudling, Rt. Hn. Reginald||Walder, David (Clitheroe)|
|Farr, John||Mawby, Ray||Walker-Smith, Rt. Hn. Sir Derek|
|Fell, Anthony||Maxwell-Hyslop, R. J.||Wall, Patrick|
|Fermer, Mrs. Peggy||Meyer, Sir Anthony||Ward, Dame Irene|
|Fidler, Michael||Mills, Peter (Torrington)||White, Roger (Gravesend)|
|Fisher, Nigel (Surbiton)||Moate, Roger||Wilkinson, John|
|Fletcher-Cooke, Charles||Molyneaux, James||Wolrige-Gordon, Patrick|
|Fookes, Miss Janet||Money, Ernie||Wood, Rt. Hn. Richard|
|Fortescue, Tim||Monks, Mrs. Connie||Wylie, Rt. Hn. N. R.|
|Fowler, Norman||Montgomery, Fergus||Younger, Hn. George|
|Fox, Marcus||Morgan-Giles, Rear-Adm.|
|Fraser. Rt. Hn. HughCSt'lTord & Stone)||Morgan, Geraint (Denbigh)||TELLERS FOR THE NOES:|
|Gardner, Edward||Mudd, David||Mr. Hector Monro and|
|Gibson-Watt, David||Murton, Oscar||Mr. Paul Hawkins.|
|Glyn, Dr. Alan|
§ Mr. Deputy Speaker (Miss Harvie Anderson)
I hope that with this Amendment it will be convenient to take also Amendments Nos. 27, 93 and 51.
§ 7.15 p.m.
§ Mr. Maudling
This small group of Amendments is necessary to carry out the undertaking I gave in Committee that families would always be given the option of voluntary departure. Clause 5(3) says:Where a person is to be deported as belonging to the family of another person, the deportation order made against him shall be included in the same instrument as that made against the other person …".That is not consistent with giving people the option of going in their own time and of their own volition. It will no longer be the case that there will have to be a deportation order against all members of the family. The provision will now be omitted, in accordance with the undertaking I gave in Committee. I thought it reasonable to put in a time limit so that people should not be left in doubt indefinitely. So if, after eight weeks, the Home Secretary has not decided to make an order, the power will lapse.
§ Mr. Peter Archer
I thought when I read this group of Amendments that the right hon. Gentleman had in mind carrying out the undertaking which he gave in Committee. But I confess that the wording of Amendment No. 27 has rather foxed me. I should have expected not a maximum but a minimum time if that had been the intention.
I was never greatly enamoured about the concept of supervised departure for those whose only guilt lay in their association with relations. In Committee the Home Secretary explained that he wanted, if possible, to avoid the stigma of deportation. We must accept that, so far as it goes, supervised departure is an improvement on deportation. However, it seems less than hospitable to say to someone who, by definition, has not in any way offended, "We do not want to deport you, but we think that you ought to go. You may go voluntarily, but, if you do not, you will go anyway." I ventured to ask in Committee whether there was a social distinction between being bounced from the Royal Enclosure and being politely asked to leave. We must at this stage accept what the right hon. Gentleman offers. Perhaps we should be duly grateful for miniscule mercies.
I should like to know more about the way that it is proposed to operate this procedure. For example, is it proposed 522 that the family will be approached by letter, or will it be approached by an official who will explain these matters? It may be that we shall be dealing with people who are unable to read. Will their departure be financed? If so, from where will the money come?
Our main problem has been to understand the purpose of the time limit in this respect. We accept that there ought to be a time limit after which members of families are not liable to deportation. They should not have this possibility hanging over their heads indefinitely. The problem seems to arise in marrying this concept with the purpose which the right hon. Gentleman explained to the House. If it is proposed that these people shall be given this option, then in practice time must be permitted to approach them, to explain the situation, to give them time to make their election and to make arrangements for the financial provision. These matters cannot be dealt with quickly.
The purpose of Opposition Amendment No. 93 is to achieve both results. We have sought to provide a minimum period so that time is given for a supervised departure, and we are also seeking to provide a maximum period, which is what the right hon. Gentleman now has in mind. Admittedly, our maximum period is longer than his. If we accept the necessity for a minimum period, clearly there has to be a longer maximum period.
The issue between the two Amendments is simple and I shall not take up time elaborating it. It may be that, on reflection, the right hon. Gentleman will agree that the distinction between the Amendments is not so great and that in practice we have a good point. If he does not agree, I suspect that the time may come when some of his harassed officials, not to mention those who advise immigrants, will be asking why he did not accept our Amendment while there was still time. I shall be glad to hear what the right hon. Gentleman has to say about this matter, and on that the House will decide accordingly.
§ Mr. Maudling
First, on finance. If people are deported there is provision for the payment of their fares. If they depart under voluntary supervision, I 523 think that finance could be arranged under Clause 29.
Secondly, on notification, we shall have to ensure that people are properly notified that they will or are likely to be deported. The fact that there is to be a right of appeal is the answer to the point about a minimum time limit. I have undertaken that all will be given the opportunity of going voluntarily if they are prepared to do so. Also, now that there is to be a right of appeal in each case there can be no question of hustling them out of the country.
§ Mr. S. C. Silkin
Does the right hon. Gentleman agree that, on reflection, the giving of the right of appeal may alter the whole concept of the timetable which he has proposed? Does he not therefore think it desirable that he should think again about that matter in the context of the right of appeal?
§ Mr. Maudling
I am prepared to do that. At a later stage I shall be proposing an Amendment on the right of appeal, but I will consider that point. Now that there is to be a right of appeal there is less need for a minimum time, but we must have a maximum time. People must not be kept in uncertainty for an indefinite period. I am trying to help people in this situation by saying that if the Home Secretary does not act in a certain time then it is all right.
I hope that I have persuaded the hon. and learned Gentleman that, with the background of a right of appeal, I am carrying out my undertaking that no one will in any circumstances be forced to leave without the option of going in his own right and that he will be able to claim financial assistance.
§ Amendment agreed to.
§ Mr. S. C. Silkin
I beg to move Amendment No. 24, in page 5, line 14, at end insert:(10) Subject to the following provisions of this section the power under this Act to refuse leave to enter or remain in the United Kingdom shall not be exercised in the case of any person who satisfies an immigration officer or the Secretary of State, as the case may be—
- (a) that he or she is the husband, wife or child under 16 years of age of another person who is a citizen of the United Kingdom and Colonies or a Commonwealth citizen in this section referred to as "the other person'); and
- (b) either—
- (i) that the other person is a person then lawfully resident in the United Kingdom or Islands; or
- (ii) that the other person is a person (not being one who is on that occasion refused leave to enter the United Kingdom) with whom he or she enters or seeks to enter the United Kingdom.(11) Where the other person has been or is given limited leave to enter or remain in the United Kingdom, any person who by virtue of subsection (10) above is given leave to enter or remain therein shall be given leave similarly limited; and any limitation on that person's leave shall be varied if and to the extent that the limitation on the other person's leave is varied; and that person's leave shall lapse if the other person's leave shall lapse.(12) Nothing in subsections (10) and (II) above shall operate to prevent the giving otherwise than by virtue of those subsections of leave to any person to enter or remain in the United Kingdom, whether for a limited or for an indefinite period, or to prevent any person from entering or remaining therein without leave if he is entitled so to do; and nothing in those subsections shall derogate from subsections (5) and (6) of this section or from subsection (5) of section 13 of this Act.There have already been two debates which, in a sense, were connected with the subject matter of the Amendment. In the first debate we discussed the right of a wife to patriality. We were informed, and were glad to hear, that the Government were thinking again in terms similar to those which we put forward. The purpose of giving a wife the right of patriality through her husband was to enable her to stay in this country on the same terms as her husband.
The second debate which impinged on this matter concerned the rules and how they should be authenticated by this House. On that occasion the right hon. Gentleman's view, that it was sufficient that the rules should be subject to the negative procedure, prevailed in the Division Lobbies.
The Amendment seeks to deal with a problem rather wider than the patriality of a wife. It deals with the position of people holding either United Kingdom or Commonwealth passports who are already in this country or are allowed to enter. I pointed out in an intervention in the earlier debate about the rules that, under the 1962 Act, specific statutory provisions deal with these rights. However, there are no similar provisions in the Bill; they are all in the draft rules. It seems as though Government have a phobia about 525 incorporating substantitive rights in legislation—just as they appeared at one time to have, but now to a diminishing extent, a phobia about giving responsibility to independent tribunals—certainly insofar as it relates to some of the major issues of fact and discretion.
We are dealing with a major issue. During the election campaign the Prime Minister recognised that the right of a family to be with the breadwinner was an issue of great moment. Keeping the family together is the whole purpose of taking every reasonable measure that one can to provide against the break-up of the family as a result of a separation. When the Conservative Party was in Government before it accepted, in the 1962 Act, the principle that a spouse—husband or wife—and the children should have a right to come in and join an immigrant here but, for reasons which have never been apparent to me, they shrink from inserting that right in the Bill.
We appreciate that the situation is not identical to that under the 1962 Act. The provisions of the Bill are different, and therefore one has to provide for things in a different way. Taking all that into account, we have taken the language used by the Conservative Party in the Commonwealth Immigrants Act, 1962, and adapted it, as far as is consistent with the provisions of this Bill, so that the two Measures are married, one with the other.
In doing that we have followed what the Conservative Party did in the 1962 Act in giving a statutory right to a husband, a wife, or a child under 16, to join, or come in with, a person who was given leave to enter this country, to be with him during the period of his stay here if it is a temporary leave, and to go when he goes, subject, always, to the right of someone, having come here, to apply to be considered separately from the person with whom he came, and to be given leave to stay in his own right. That is an obvious qualification that one has to make.
Subject to that kind of qualification, we have sought to provide that where a breadwinner comes for a year, and then leaves, his family will come for a year, and leave with him. If the breadwinner's leave is extended for a further period of three years, we say that his family's 526 leave shall be similarly extended. If the breadwinner is allowed to remain after the four-year period—and we are told that that will be the normal and natural thing when someone has been allowed to stay for that long on a work permit—we say that his family should be allowed to stay permanently with him.
If the breadwinner's leave lapses by virtue of the provisions of the Bill, or if his leave is varied—there is provision in the Bill to vary it—then, similarly, the leave of his family will lapse or be varied, except in the case that I have mentioned of a child, for example, having a right to say that he shall be treated independently because he has a job and is independent of his parents. That is the kind of case that we were dealing with under the deportation provisions, where a right to appeal is apparently to be given in similar circumstances.
It may be that we shall be told, as we were told in Committee, that the principle behind our Amendment is one to which the Government have every intention of giving effect under the rules. The point to bear in mind is that what we are doing here affects the rights of individuals. The whole matter is to be dealt with by the negative procedure, which means that we shall not necessarily have an opportunity to debate what is being done. Indeed, even if the affirmative procedure were adopted it would be extremely difficult to debate the rules in detail, because one cannot table Amendments to them.
I do not suggest that in following the provisions of the 1962 Act and seeking them to adapt them to the provisions of this Bill the draftsmanship of the 25 lines of the Amendment is perfect but, if this kind of provision is in the Bill, it can be amended. If the Government do not like this provision in its present form, they can put down a suitable Amendment in another place. That cannot be done with the rules, and it seems to me right and proper that a right of this importance should remain a statutory right. It is a right upon which will depend the happiness and unity of many families.
It seems to me that if the Prime Minister is to give effect to what he was saying about these matters during the General Election campaign it would be wrong to leave this matter to be dealt 527 with by rules. This right should be enshrined in the Bill. That is what the Amendment seeks to do, and I hope that the Government will accept the principle that what they did in the 1962 Act should properly be done in this Bill.
§ Mr. Sharples
Perhaps I might refer, first, to the common ground between us. I think it is common ground between the two sides of the House that a person coming to this country should, wherever possible, be able to be accompanied by his wife and dependent children. The difference between the two sides of the House lies in whether that right should be enshrined in the Bill, or contained in the rules which, as a result of Amendments moved by my right hon. Friend, are to be subject to the negative procedure.
Before coming to the substance of the matter, there are two points that I should like to make on the drafting of the Amendment. I make nothing of the first but I do make something of the second. I am sure that the first is simply an error in the drafting, in that it benefits a wife and children who are themselves aliens, provided that the husband or parent is a Commonwealth citizen. There are very few such people, and I do not suppose that it was the intention of the hon. and learned Member for Dulwich (Mr. S. C. Silkin), who probably drafted the Amendment, to include them.
Much more important—and this illustrates the difficulty about putting a provision of this kind into legislation—is the fact that the Amendment would entitle a child under 16 to enter with, or join, only one parent. The 1968 Act, which was passed by the Labour Party when in Government, was designed to remedy that situation, and I shall have something more to say about that in a few moments.
This illustrates in some respects the difficulties and dangers of putting this in statutory form. As I said, there is nothing between us on the desire that, when a person comes here for settlement or even for a much more limited time, he should be joined by his wife and dependent children. We both believe that families should be kept together.
I made it clear in Committee that it was the policy of the Government to allow people lawfully entering the 528 country to be accompanied by or to be joined by their wives and young children, that the immigration rules would give effect to this policy and that, in their final form, the rules would not require immigrants already settled here to show that they could support their wives and children without recourse to public funds.
The argument between us is simply whether this should be in the rules or in the Bill. The hon. and learned Member for Dulwich referred to the precedent in the 1962 Act, and said that he had adapted those provisions to the present situation. One of the difficulties in that Act and one of the reasons for the change in our policy was that it was very easy for people seeking to come here to find loopholes in the law which could be exploited.
Section 2(2) of the Commonwealth Immigrants Act ensured the interests of family unity. It gave, as does the Amendment, a child under 16 the right to join either parent. This was exploited by boys, particularly, just under the age of 16, who came here to join their fathers, while their mothers and the remainder of their families remained in the country of origin.
One of the difficulties of inscribing this provision in statute was illustrated when this situation came to light. An International Social Service report on its London Airport project revealed the abuse in June, 1967, but it was not until nine months later that, with the cooperation of both sides of the House, it was possible to introduce legislation in order to put right a situation which was being deliberately exploited by large numbers of people, and which the right hon. Member for Cardiff, South-East (Mr. Callaghan), when Home Secretary, rightly thought had to be put right.
But even so, only because it was possible in the parliamentary time-table to introduce a Bill to deal with much wider issues was it possible to legislate to deal with this abuse. It was nine months before the amending legislation could be introduced, and in that time a very large number of the families of these youths were able to exploit the provisions of the Act.
It is largely for that reason—because the Government must have the right to make alterations in rules at short notice 529 to meet cases of exploitation similar to this—that we have tought it right that provisions which are, none the less, important, should be contained in the rules rather than in the Bill. That is why I must advise the House to reject the Amendment.
§ Mr. S. C. Silkin
The Minister's case is not founded upon the importance of the subject, which he recognises, or upon any difference between us on the merits of the matter, because he recognises the great desirability of enabling people who come here, even for a relatively short time, to have their families with them or to be joined by them. He pointed to certain defects in the drafting, which I accept. Indeed, I probably accepted these in advance. What I sought to do was to put down a provision which raised the principle whether a matter as important as this should be left to the rules, or whether it should, as was the case in the 1962 and 1968 Acts, be incorporated in the legislation.
That is the nub of the issue between us. As I understand the Minister's answer, his justification for putting this matter in rules which are intended to be simply administrative and which are not described in the Bill as providing substantive rights, is that, in the past, matters have arisen which it would have been desirable for Parliament to be able to deal with more quickly than it was able to do.
But it is now nearly a decade since the introduction of immigration control. We have had a vast amount of experience of it and we have found it necessary to make certain changes because of loopholes. The Minister mentioned a particular loophole which it was desirable to close. But surely, by now, the experience that we have gained must have resulted in our having sufficient knowledge to be able to say that the possible loopholes have been filled and that a Clause could be inserted in the Bill which would cover all the cases which one could reasonably expect to happen—including the case which had to be dealt with by the 1968 Act.
The Minister is saying that this matter is so open-ended that one should enable the Government to have a perpetual discretion to make new law, without any more parliamentary control than the nega 530 tive procedure. If one applied that principle generally, for example to taxation law, where one has the most glaring examples of loopholes—where people are employed for large sums of money for the express purpose of finding loopholes—one would soon find that virtually everything of importance in which a loophole was possible was being dealt with by rules and that the authority of Parliament and its power to improve legislation was diminishing and being eroded. That argument does not satisfy me that this is a matter which should not be within the Bill.
I accept that one must balance the convenience to the Executive of being able to make rapid changes against the importance of the subject matter with which one is dealing in the legislation. This is a matter of great importance, as the Minister recognises. It is a matter which up to now, both in the 1962 and 1968 Acts, it was thought right to deal with by way of legislation.
Even when the loophole was found which gave rise to the provision in the 1968 Act to which the Minister referred, the Government of the day did not deal with it by saying, in effect, "We will not have statutory provisions any longer. We will go over to a system of rules which will enable us to deal with any future loopholes as they arise". They did it by way of amendment to the 1962 Act, and they were perfectly right to do it that way.
The hon. Gentleman is putting too much weight in the scales in favour of the facility of the Executive and far too little in that which sustains the essential principle that when people have and are given rights, those rights should be enshrined in legislation that is capable of amendment and control directly by this House.
In these circumstances, if the Minister is not prepared to concede the principle of what we are seeking—I said we were not asking him to swallow the entirety of the drafting of the Amendment—and enshrine it in the Statute, I must ask my hon. Friends to support this principle by voting for it in the Lobby.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
This is such an important point that although I had 531 the privilege of serving on the Committee, I must comment on it. I hope that the Government will think again on this issue, for, as the Minister said, there is no real difference between us. The only difference is that the Government say that this should be in the rules while we say that it is a principle of such strength that it should be enshrined in the Bill.
The reasoning of the Minister is that because it will be in the rules and because certain things occurred in the past, all will be well because the rules can be altered quickly. This is an important reason why the principle should be enshrined in the Bill, because we do not want it to be dealt with quickly. We want the principle established in the Bill so that if a query arises it will be dealt with by way of legislation and not simply by an alteration of the rules. I hope that the Minister will appreciate the importance of placing this principle within the Statute in view of the important rights of the individual that are involved.
§ Mr. Bidwell
At the outset of the Committee stage my hon. Friends tried to introduce what one might call a set of declared principles. They were basically designed to ensure that the provisions would be non-discriminatory on grounds of ethnic origin or colour.
At that stage it was argued by hon. Gentlemen opposite that there was no need for our proposal because what we had in mind was already laid down in statutory form in the Race Relations Act, 1968. On that score hon. Gentlemen opposite had a point, but in the case we are now discussing the same cannot be said. It is common knowledge in this case that there are pressures the other way, so to speak. Parts of the Bill are of a probationary character in their effect on Commonwealth citizens coming to work in this country. There is the provision for one year's probation, with a
§ second bite of three years' probation before permanent settlement can be achieved.
§ They are already under these pressures, and while there would not be a derogation of rights under certain rules concerning the bringing in of dependent relatives, there would at any rate be a considerable reduction in the incentive to bring in dependent relatives and so on until permanent settlement had been achieved. We have already pointed out the enormous difficulty involved at that early stage in obtaining credit and arranging mortgages.
§ A considerable body of opinion is growing over what I have previously described as the possible growth, as a result of the facility provided by the Bill, of coolie labour, and certainly virtually directed labour, mainly coloured. For this reason my hon. Friends are saying that it is not good enough to, as it were, stand this matter aside in rules. It is imperative that the principle be enshrined in the Bill so that it becomes a concept and aim.
§ If the Minister is prepared to accept the principle of the Amendment, as my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) pointed out, he would be asserting a position which I am sure he holds. He would be saying that he will have no truck with the sort of developments which could arise from the actions of certain employers, and perhaps certain members of his party.
§ We are here debating a declaration of principle which will be enshrined in any future legislation on this subject which a Labour Government introduce, for that legislation will be based on sound Socialist principles.
§ Question put, That the Amendment be made:—
§ The House divided: Ayes 155, Noes 185.533
|Division No. 379.]||AYES||[7.57 p.m.|
|Albu, Austen||Booth, Albert||Crosland, Rt. Hn. Anthony|
|Allaun, Frank (Salford, E.)||Buchan, Norman||Dalyell, Tam|
|Archer, Peter (Rowley Regis)||Buchanan, Richard (G'gow, Sp'burn)||Davidson, Arthur|
|Armstrong, Ernest||Callaghan, Rt. Hn. James||Davies, Denzil (Llanelly)|
|Ashton, Joe||Campbell, I. (Dunbartonshire, W.)||Davies, G. Elfed (Rhondda, E.)|
|Barnett, Joel||Carter, Ray (Birmingh'm, Northfield)||Davies, Ifor (Gower)|
|Beaney, Alan||Clark, David (Colne Valley)||Davies, S. O. (Merthyr Tydvil)|
|Bidwell, Sydney||Cocks, Michael (Bristol, S.)||Davis, Clinton (Hackney, C.)|
|Bishop, E. S.||Corbet, Mrs. Freda||Davis, Terry (Bromsgrove)|
|Boardman, H. (Leigh)||Crawshaw, Richard||Dell, Rt. Hn. Edmund|
|Dempsey, James||Kaufman, Gerald||Price, William (Rugby)|
|Doig, Peter||Kinnock, Neil||Rankin, John|
|Dormand, J. D.||Lamond, James||Rees, Merlyn (Leeds, S.)|
|Douglas, Dick (Stirlingshire, E.)||Latham, Arthur||Roberts, Albert (Normanton)|
|Douglas-Mann, Bruce||Lawson, George||Roberts, Rt. Hn. Goronwy (Caernarvon)|
|Duffy, A. E. P.||Leadbitter, Ted||Roderick, Caerwyn E. (Br'c'n & R'dnor)|
|Dunn, James A.||Leonard, Dick||Rodgers, William (Stockton-on-Tees)|
|Dunnett, Jack||Lestor, Miss Joan||Roper, John|
|Edwards, Robert (Bilston)||Lewis, Arthur (W. Ham, N.)||Ross, Rt. Hn. William (Kilmamock)|
|Evans, Fred||Lewis, Ron (Carlisle)||Sheldon, Robert (Ashton-under-Lyne)|
|Faulds, Andrew||Lipton, Marcus||Shore, Rt. Hn. Peter (Stepney)|
|Fisher, Mrs. Doris (B'ham, Ladywood)||Lomas, Kenneth||Short, Rt. Hn. Edward (N'c'tle-u-Tyne)|
|Fitch, Alan (Wigan)||Lyon, Alexander W. (York)||Short, Mrs. Renée (W'hampton, N. E.)|
|Fletcher, Ted (Darlington)||McBride, Neil||Silkin, Hn. S. C. (Dulwich)|
|Foley, Maurice||McCartney, Hugh||Sillars, James|
|Fraser, John (Norwood)||McElhone, Frank||Silverman, Julius|
|Gilbert, Dr. John||McGuire, Michael||Skinner, Dennis|
|Ginsburg, David||McMillan, Tom (Glasgow, C.)||Small, William|
|Gourlay, Harry||Mahon, Simon (Bootle)||Smith, John (Lanarkshire, N.)|
|Grant, George (Morpeth)||Marks, Kenneth||Spearing, Nigel|
|Grant, John D. (Islington, E.)||Marquand, David||Spriggs, Leslie|
|Griffiths, Eddie (Brightside)||Marsden, F.||Steel, David|
|Crimond, Rt. Hn. J.||Marshall, Dr. Edmund||Stonehouse, Rt. Hn. John|
|Hamilton, William (Fife, E.)||Mason, Rt. Hn. Roy||Summerskill, Hn. Dr. Shirley|
|Hamling, William||Meacher, Michael||Swain, Thomas|
|Hardy, Peter||Millan, Bruce||Taverne, Dick|
|Harper, Joseph||Milne, Edward (Blyth)||Thomas, Rt. Hn. George (Cardiff, W.)|
|Harrison, Walter (Wakefield)||Morgan, Etystan (Cardiganshire)||Thomas, Jeffrey (Abertillery)|
|Horam, John||Morris, Charles R. (Openshaw)||Thomson, Rt. Hn. G. (Dundee, E.)|
|Houghton, Rt. Hn. Douglas||Morris, Rt. Hn. John (Aberavon)||Tomney, Frank|
|Hughes, Rt. Hn. Cledwyn (Anglesey)||Murray, Ronald King||Torney, Tom|
|Hughes, Mark (Durham)||Ogden, Eric||Urwin, T. W.|
|Hughes, Robert (Aberdeen, N.)||O'Halloran, Michael||Weitzman, David|
|Hughes, Roy (Newport)||O'Malley, Brian||Wellbeloved, James|
|Janner, Greville||Orme, Stanley||Whitehead, Philip|
|Jenkins, Rt. Hn. Roy (Stechford)||Oswald, Thomas||Willey, Rt. Hn. Frederick|
|John, Brynmor||Parry, Robert (Liverpool, Exchange)||Williams, W. T. (Warrington)|
|Johnson, James (K'ston-on-HuII, W.)||Pavitt, Laurie||Wilson, Rt. Hn. Harold (Huyton)|
|Johnson, Walter (Derby, S.)||Pendry, Tom||Woof, Robert|
|Jones, Dan (Burnley)||Pentland, Norman|
|Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)||Perry, Ernest G.||TELLERS FOR THE AYES:|
|Jones, Gwynoro (Carmarthen)||Prescott, John||Mr. James Hamilton and|
|Jones, T. Alec (Rhondda, W.)||Price, J. T. (Westhoughton)||Mr. John Golding.|
|Adley, Robert||Critchley, Julian||Hiley, Joseph|
|Alison, Michael (Barkston Ash)||Crouch, David||Hill, James (Southampton, Test)|
|Allason, James (Hemel Hempstead)||Dean, Paul||Holland, Philip|
|Atkins, Humphrey||Deedes, Rt. Hn. W. F.||Holt, Miss Mary|
|Awdry, Daniel||Dixon, Piers||Hornby, Richard|
|Baker, Kenneth (St. Marylebone)||du Cann, Rt. Hn. Edward||Hornsby-Smithy, Rt. Hn. Dame Patricia|
|Batsford, Brian||Dykes, Hugh||Howe, Hn. Sir Geoffrey (Reigate)|
|Beamish, Col. Sir Tufton||Edwards, Nicholas (Pembroke)||Howell, David (Guildford)|
|Bennett, Dr. Reginald (Gosport)||Elliot, Capt. Walter (Carshalton)||Howell, Ralph (Norfolk, N.)|
|Biffen, John||Elliott, R. W. (N'c'tle-upon-Tyne, N.)||Hunt, John|
|Biggs-Davison, John||Eyre, Reginald||Hutchison, Michael Clark|
|Blaker, Peter||Farr, John||Iremonger, T. L.|
|Boardman, Tom (Leicester, S. W.)||Fell, Anthony||James, David|
|Boscawen, Robert||Fenner, Mrs. Peggy||Jenkin, Patrick (Woodford)|
|Bossom, Sir Clive||Fidler, Michael||Jennings, J. c. (Burton)|
|Bowden, Andrew||Fisher, Nigel (Surbiton)||Jessel, Toby|
|Boyd-Carpenter, Rt. Hn. John||Fletcher-Cooke, Charles||Kaberry, Sir Donald|
|Bray, Ronald||Fookes, Miss Janet||King, Tom (Bridgwater)|
|Brinton, Sir Tatton||Fortescue, Tim||Kinsey, J. R.|
|Brocklebank-Fowler, Christopher||Fowler, Norman||Knox, David|
|Bruce-Gardyne, J.||Fox, Marcus||Langford-Holt, Sir John|
|Buchanan-Smith, Alick (Angus, N & M)||Fraser, Rt. Hn. Hugh (St'ffom & Stone)||Legge-Bourke, Sir Harry|
|Bullus, Sir Eric||Gardner, Edward||Le Marchant, Spencer|
|Burden, F. A.||Glyn, Dr. Alan||Loveridge, John|
|Butler, Adam (Bosworth)||Goodhart, Philip||Luce, R. N.|
|Campbell, Rt. Hn. G. (Moray & Nairn)||Gower, Raymond||McAdden, Sir Stephen|
|Carlisle, Mark||Gray, Hamish||MacArthur, Ian|
|Channon, Paul||Green, Alan||McCrindle, R. A,|
|Chapman, Sydney||Griffiths, Eldon (Bury St. Edmunds)||McLaren, Martin|
|Chataway, Rt. Hn. Christopher||Gummer, Selwyn||McMaster, Stanley|
|Churchill, W. S.||Hall, Miss Joan (Keighley)||Macmillan, Maurice (Famham)|
|Clarke, Kenneth (Rushcliffe)||Harrison, Brian (Maldon)||McNair-Wilson, Michael|
|Clegg, Walter||Haselhurst, Alan||Maginnis, John E.|
|Costain, A. P.||Hastings, Stephen||Mather, Carol|
|Cooke, Robert||Hawkins, Paul||Maude, Angus|
|Cooper, A. E.||Hicks, Robert||Maudling, Rt. Hn. Reginald|
|Cormack, Patrick||Higgins, Terence L.||Mawby, Ray|
|Maxwell-Hyslop, R. J.||Pym, Rt. Hn. Francis||Taylor, Edward M. (G'gow, Cathcart)|
|Meyer, Sir Anthony||Quennell, Miss J. M.||Taylor, Frank (Moss Side)|
|Mills, Peter (Torrington)||Raison, Timothy||Taylor, Robert (Croydon, N. W.)|
|Moate, Roger||Ramsden, Rt. Hn. James||Tebbit, Norman|
|Molyneaux, James||Redmond, Robert||Temple, John M.|
|Money, Ernle||Reed, Laurance (Bolton, E.)||Thomas, John Stradling (Monmouth)|
|Monks, Mrs. Connie||Roberts, Michael (Cardiff, N.)||Trafford, Dr. Anthony|
|Montgomery, Fergus||Roberts, Wyn (Conway)||Tugendhat, Christopher|
|More, Jasper||Rost, Peter||Turton, Rt. Hn. Sir Robin|
|Morgan, Geraint (Denbigh)||Royle, Anthony||Vaughan, Dr. Gerard|
|Morgan-Giles, Rear-Adm.||Russell, Sir Ronald||Waddington, David|
|Mudd, David||Scott, Nicholas||Walder, David (Clitheroe)|
|Murton, Oscar||Sharples Richard||Walker-Smith, Rt. Hn. Sir Derek|
|Neave, Airey||Shaw, Michael (Sc'b'gh & Whitby)||Wall, Patrick|
|Normanton, Tom||Simeons, Charles||Ward, Dame Irene|
|Onslow, Cranley||Sinclair, Sir George||Wells, John (Maidstone)|
|Oppenheim, Mrs. Sally||Skeet, T. H. H.||White, Roger (Gravesend)|
|Osborn, John||Soref, Harold||Wilkinson, John|
|Owen, Idris (Stockport, N.)||Speed, Keith||Wolrige-Gordon, Patrick|
|Page, John (Harrow, W.)||Spence, John||Wood, Rt. Hn. Richard|
|Parkinson, Cecil (Enfield, W.)||Sproat, Iain||Wylie, Rt. Hn. N. R.|
|Percival, Ian||Stainton, Keith||Younger, Hn. George|
|Pounder, Rafton||Stewart-Smith, D. G. (Belper)|
|Powell, Rt. Hn. J. Enoch||Stoddart-Scott, Col. Sir M.||TELLERS FOR THE NOES:|
|Prior, Rt. Hn. J. M. L.||Stuttaford, Dr. Tom||Mr. Hector Monro and|
|Proudfoot, Wilfred||Tapsell, Peter||Mr. Victor Goodhew.|