§ `(1) In any case arising under this Act where a person is refused a certificate of naturalisation as a British Citizen or, as a Citizen of the British Dependent Territories, or where an application for registration as a British Citizen or, as the case may be, as a Citizen of the British Dependent Territories or as a British Overseas Citizen is refused, an appeal shall lie against the decision of the Secretary of State or, as the case may be, of the Lieutenant-Governor or the Governor, to the Citizenship Appeal Tribunal established in accordance with the provisions of this section.
§ (2) For the purpose of hearing appeals under this Act, there shall be established a tribunal to be known as the Citizenship Appeal Tribunal.
§ (3) The Citizenship Appeal Tribunal shall consist of:
- (a) such number of judges as may be nominated from time to time by the Lord Chancellor from among the judges (other than the Lord Chancellor) of the High Court and the Court of Appeal;
- (b) at least one judge of the Court of Session nominated from time to time by the Lord President of that Court; and
- (c) such number of other members as may be appointed from time to time by Her Majesty on the recommendation of the Lord Chancellor.
§ (4) The Lord Chancellor shall, after consultation with the Lord President of the Court of Session, appoint one of the judges nominated under subsection (2) above to be President of the Appeal Tribunal.
§ (5) No judge shall be nominated a member of the Citizenship Appeal Tribunal except with his consent.
§ (6) The Secretary of State shall by regulations make provisions for the membership, sittings, proceedings and powers of the Citizenship Appeal Tribunal..—[Mr. Hattersley.]
§ Brought up, and read the First time.
§ Mr. Roy Hattersley (Birmingham, Sparkbrook)
I beg to move. That the clause be read a Second time.
The object of the new clause is to provide an appeals system by which applicants for British citizenship by registration or naturalisation may, if their application is refused, contest that refusal.
In some ways the debate on the new clause typifies the divide between the Government and the Opposition over the entire Bill—a divide that can be more dramatically exemplified on other issues, but will certainly appear in the debate on the new clause, not least because the Opposition believe that a candidate for British citizenship who fulfills the requirements laid down by Parliament should have an automatic right to obtain that status.
In Committee, Conservative Members and the Minister of State explicitly described British citizenship by registration or naturalisation as a privilege which, as a matter of principle as well as a matter of, according to them, necessary administrative practice, should be withheld by the Home Secretary if he chose to use his discretion against the applicant.
I had hoped that the right hon. Member for Down, South (Mr. Powell) would be here to entertain the House with his views on the subject, but unfortunately he is not with us. He said that his view, which he admitted was mystical rather than logical, was that possession by the Home Secretary of the right to reject an applicant for British citizenship, for whatever reason he chose—no matter how capricious, arbitrary or unrelated to the criteria laid down in the Bill—was a necessary condition of the statehood and nationhood of the United Kingdom.
In other words, unless the Home Secretary possessed the power, on behalf of the United Kingdom corporately and collectively, to dismiss an application for reasons that he need not justify, and perhaps could not explain, British nationhood would be undermined. I do not suggest that that bizarre notion was commonly held by Conservative Members, but I can demonstrate by reference toHansard of the Committee proceedings that the Government's view was that the right to withhold citizenship should be retained in the person of the Home Secretary.
I accept that Parliament has a right, indeed a duty, to stipulate which individuals who are not born within the United Kingdom are entitled subsequently to become United Kingdom citizens.
I believe also that there must be a clear definition of what qualifies such individuals for naturalisation or registration. Men and women who fulfil the requirements stipulated by the House should have the automatic right to citizenship. Equally important, applicants who believe that they fulfil the criteria and are entitled to citizenship according to the conditions stipulated by the House, but who are nevertheless refused an application for that status, should first be told in clear and unequivocal terms why their application has been refused. Then, if they contest the facts behind the refusal and the judgment that brought 825 it about, they should have the right to appeal against the decision that deprived them of the status for which they asked.
The right to appeal as proposed in the new clause is linked inextricably with the right of an applicant to know why his initial application has been turned down. If an applicant is not told what prevented his application for citizenship from succeeding, he cannot make an appeal either on fact or judgment. The Opposition argued in Committee that more precise criteria determining what did or did not justify a man—or woman—in his application to become British should be incorporated in the Bill. We failed in our attempts to include objective criteria for the granting of citizenship.
Schedule 1 to the Bill contains criteria of a sort, stipulating general conditions that have to be fulfilled if a man or woman is to become British—a residence qualification, a period of good conduct, a character in some way beyond reproach and a working knowledge of the English language. I have to tell the House that the implementation and interpretation of those criteria are open to a great deal of argument and judgment. The most subjective requirement of all is that an applicant should be of good conduct, of good character and above reproach. The Opposition argued in Committee that that, too, could be specified in a clear and objective manner. A man or woman who had not committed any one of a list of specified offences would, in our opinion, be someone who could claim to be of good conduct that justified the application of British citizenship.
The Government prefer to keep these things more general. In doing so they provide substantial risks for the applicant, particularly in relation to the good conduct requirement. The Minister of State described in Committee how the good conduct requirement is interpreted in the Home Office. With your permission, Mr. Speaker, I shall read some of the things that he said, assuring you that I am not reading from the works of Beachcomber, but giving you a recital of the work of some Assistant Secretary in the Home Office, which the Minister of State read faithfully to the Committee. The hon. Gentleman said:Perhaps I might give some indication of how the good character requirement is currently interpreted.He gave some indication before going on to say:Sexual morality, however, is not normally taken into account, nor are, for instance, homosexual activities within the law. Scandalous sexual misbehaviour might, however, when combined with other personal characteristics, be a factor in a very few cases".In case that definition of immorality and unacceptable conduct was not sufficiently vacuous, he went on:Financial irresponsibility, serious insolvency or bankruptcy invariably leads to refusal. But mere financial incompetence is not necessarily a bar, and neither is unemployment or receipt of social security benefits.6.45 pm
The passage improves in a humurous sense as it goes along, concluding with this definition of what makes a man or woman suitable for British citizenship:Defects of temperament on their own are not normally held to bar an applicant on grounds of character. Heavy drinking, gambling or a disinclination to work are not in themselves sufficient to warrant refusal. There comes a point in a very few cases, however, where failings of this type become so 826 pronounced, or notorious in the locality, that it would be unwise to grant naturalisation."—[Official Report, Standing Committee F, 19 March 1981, c. 692.]I have read those paragraphs, not in order to reflect on the Minister's attitude to these matters, but to demonstrate the subjectivity of the rules that govern a man's or a woman's application for citizenship. A man or a woman may be denied British citizenship if it comes to the point where failings are so pronounced or notorious in the locality that it would be unwise to grant naturalisation. That single sentence contains three or four subjective judgments, none of which the applicant is allowed to test or to appeal against, and none of which will be made known to the applicant if used as a reason for denying the status of British citizenship.
It seems wrong that a man or a woman who, according to the Bill, and according to the schedule to the Bill, is entitled to be British, should be prevented from being British by rules that are, and are clearly interpreted in a way that is, so arbitrary, so subjective and, I must use the word again, so vacuous. In our view, the judgments should be made in a way that can be challenged, in that they are described in material and practical terms, and, secondly a challenge should be possible. There is no way in which a challenge to a refusal of British citizenship can be mounted under he Bill as it stands.
Clause 41(1), as amended in Committee, contains a welcome addition. It is an amendment that the Opposition wholly applaud. It improves substantially both the character and tone of the Bill. Clause 41(1) requires the Secretary of State, a governor or a lieutenant-governor, when deciding whether a man or a woman can become British, or may be prevented from becoming British, to make his judgment with a mind wholly unclouded by racial, religious or other prejudicial, in terms of race, colour and creed, qualifications. That is good. It is an admirable addition to the Bill. However, as I said in Committee, the fact that the Minister, properly and admirably, added the amendment disqualifying the Secretary of State from making a judgment about citizenship that was prejudiced according to race or colour is a dramatic demonstration of the wide discretion of the Secretary of State. That is the only limitation placed upon the exercise of his judgment.
Clause 41(2), as amended, says:The Secretary of State, a Governor or a Lieutenant-Governor…shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion",and it goes on to say that any such decision to grant or deny citizenshipshall not be subject to appeal to, or review in, any court.The fact that the Secretary of State has that enormous power over the future prospects, prosperity and happiness of a man or woman, and the fact that the Bill does not require him to justify his decision, which cannot be checked, examined or challenged in any court, seems wrong in principle and wrong in practice. It is wrong in itself. A crucial decision about the future of a man or a woman, and therefore about the future of the family of that man or woman, should be taken in a way that does not deny the man or the woman knowledge of the reasons why the decision has gone against him or her and the right to argue about the facts on which the decision was based.
I should like to remind the House of what happens in practice in the real world of applications for British citizenship. A man or a woman believes that he or she is 827 entitled to British citizenship under what will now, if the Bill becomes law, be the terms of schedule 1 to the Act. Let me give an example. I take only two or three of the qualifications. A man—and this applies also to a woman—believes that he is of good character. He knows that he has lived in the United Kingdom for the requisite period. He believes himself to have sufficient knowledge of the Welsh or English language. He does not know how good character is defined. He can read the Minister of State's speech, but that will not give him a precise definition, and he can look at the schedule, which describes good character in general terms. Nor does he know the level of English—or, for that matter, Welsh—that he needs to qualify for British citizenship. All that he knows is that somehow he must achieve a status and a quality of performance which is not described for him, but which the Minister or the Minister's representative will judge.
Many applications are turned down. When that happens the applicants receive a circular letter telling them that it is not the practice of the Home Secretary or the Home Office to say why the application has been refused. I am not the first Member of Parliament to stand on the rights and privileges that we have, but it is worth considering that when we are asked by an unsuccessful applicant to pursue the case with the Home Office we are given the same reply, namely, that it is not the practice of the Home Secretary to reveal the reasons why an application for British citizenship has been rejected.
This potentially disastrous news is received in a way that makes it almost impossible for the individual to accommodate the disadvantages that the Home Secretary has found in him. The applicant will know—or think that he knows—whether he has lived here for five years, but he has no idea of the standard of English that is required. In practice it involves a subjective judgment by the police officer who visits the applicant at his home and decides whether the person is able to carry on an adequate conversation in English.
The applicant will not know how moral failings may have affected the application—whether those failings are so pronounced and notorious in his locality that it would be unwise to grant him nationality. Perhaps more important, he will not know whether he is right to suspect that people have described him as that without justification, but that is the rumour that is put around about him. That is the concept of the man's behaviour, character and history that is offered to the Home Office by malicious neighbours. The man has no way of challenging that, or arguing with the facts of the judgment.
§ Mr. Jim Marshall
Does my right hon. Friend accept that what he says is all the more pertinent, because groups of people who now have the right to confer citizenship—namely, husbands of foreign born wives—will be brought into the net for the first time if the Bill becomes law? The kind of salicious comments that my right hon. Friend mentions can place an additional intolerable strain on many marriages.
§ Mr. Hattersley
That is true. We all know people in ethnic minorities who have been penalised by things that have been said about them by their neighbours or by people with whom they have had a dispute, as a result of which applications to remain here have been refused or extradition has been required. I fear that such a process will proliferate under the extensions of the Bill.
828 Confusions arise—understandably—between two Mr. Singhs and two Mr. Khans. I have done it myself. I shall not ask the Minister of State how often that happens, but I am sure that it happens often. There should be an obligation on the Home Secretary to prove that such errors do not occur if the offended person, or the person who believes that he has been offended, wants to make an application saying that the Home Secretary's judgment was wrong in fact or in opinion.
The inadequacy of such a subjective set of rules, judged by the Home Secretary's representative, was conceded by Conservative Members. My hon. Friend the Member for York (Mr. Lyon) spoke in Committee of an applicant who might say that he had been treated unfairly, because he contended his English was pretty good. That, cried the hon. Member for Petersfield (Mr. Mates), thinking that he was scoring a point, was a matter of opinion.
Our case rests on our belief that matters of opinion ought not to determine the future of an individual or family. It should be determined in a manner that is more scientific, objective and legal.
In refutation of that, I am sure that the Minister of State will say, as he did in Committee, that the system has worked well in the past and that the alternative that we propose offers a number of substantial difficulties, some involving administration and some involving security. I shall deal briefly with those matters.
We have no idea how well the system worked in the past. We criticise the nature of a system under which there is no way of checking how well it operated in previous years. We have no idea of how many people who should have obtained British nationality were refused it, how many factual errors were made, or of how many of the judgments of Home Office officials would have been overturned had they been scrutinised by a court or tribunal. All that we know is that the Minister told us in Committee on 12 May that in 1980 there were 1,199 refused applications. He said that 249 were for character requirements, 190 for language failures, 483 for failures to fulfil the statutory residence requirements, and 264 were because, in the judgment of the Home Office, the applicant did not intend to fulfil future residence requirements—another subjective judgment which, in my view, was so indecisive as to be intolerable. The Minister of State said that 15 applications had been rejected for other reasons.
I later added up the Minister of State's figures and discovered that they came to 1,201, so two items were missing. I shall be charitable and not attribute those two items to his arithmetic. They are probably two security cases that he did not put in any of the categories. I shall come to security cases in a moment.
The Minister misunderstands the situation if he says that the present system is satisfactory simply because 1,199 refusals did not result in massive publicity, massive condemnation, massive dispute and massive disagreement. I do not believe that there is a Member of Parliament—certainly on these Benches—who has not applied for British citizenship on behalf of a constituent, found it refused, believed that the refusal was unreasonable, and witnessed the suffering, hardship and uncertainty that resulted from that refusal. Simply to say "Last year we managed 1,200, what are you complaining about?" does not meet the position; nor does an answer about the fears concerning consequent problems affecting security.
829 I made a proposal in Committee. If the Secretary of State wished to deny citizenship to a man or woman because in the opinion of those who advised him to grant citizenship would be a security risk to the United Kingdom, no one in his right mind would want the Secretary of State to be forced to justify that contention before a court or tribunal. I proposed that the Secretary of State should have the right to issue a warrant, saying that the refusal was for security reasons and that therefore there should be no appeal or examination of the case. In some cases, perhaps, the Secretary of State's information would be inadequate and the refusal unjustified, but I am prepared to risk that, in the interests of security.
The only possible security risk that can come from my scheme is that which the Minister described. He said that to say that a man had been refused British citizenship because of his security classification would alert him to suspicions about himself. That is such a far-fetched risk that I am prepared to accept it in the interests of a proper and objective appeals system. I understand the security implications, but, with the proper will, the Home Secretary could overcome the problems.
My right hon. and hon. Friends accept that a man or woman who is denied citizenship should know why it has been denied, have the opportunity to argue against the decision and the right to challenge the facts and the Home Secretary's judgment of the facts.
Other matters arise from the Committee's considerations. The Minister said in Committee that the problem was not as great as we described because the rights lost through the withdrawal or refusal of citizenship were not as great as we tried to make out. He said thatfor most people these matters do not impinge on their everyday lives, at least to the extent of, for example, immigration matters"—[Official Report, Standing Committee F; 12 May 1981, c. 1964.]People who have the right of abode in Britain do not have to have a stamp in their passport, nor do they have qualifications in relation to their stay. They can remain here without assuming British citizenship through naturalisation or registration. However, a man or woman applying for naturalisation or registration might be doing so to obtain rights which he or she regards as fundamental to existence in the United Kingdom. A job might be at stake. More important, at a time of insecurity among the ethnic minorities, the feeling of confidence in the country in which a person has chosen to live might be deeply undermined if he is told that he is not entitled to the full rights of citizenship and is not told why the right is denied.
To say that the rights of citizenship do not impinge on everyday lives, at least to the extent of the immigration laws, is to deny the fundamental policy of citizenship as described in the Bill. The Government told us time after time in Committee, on Second Reading and outside, of the importance of British nationality being clearly defined, clearly understood and properly respected. If British nationality is that important—and I believe it to be—the House has a duty to protect the people who are entitled to British nationality under the Bill but fear that that right will be denied them. To fail to do that is to deny elementary justice.
That denial might relate to 1,199 people, 99 people or even half a dozen. Whatever the number, the right to know 830 why an application has been refused and the right to appeal against that refusal are essential in principle and in practice. If the Home Secretary cannot move towards that this evening, we shall divide the House on principle and practice.
§ Mr. Alexander W. Lyon
I entirely agree with my right hon. Friend and his new clause. We discussed these matters at length in Committee. My right hon. Friend conceded that the new clause does not provide the full package required for a reasonable appeals system for registration and naturalisation cases. The right to appeal gives little if one does not know what one is appealing about. A case cannot be presented properly. An applicant would be able to say only "I applied. I think that I am entitled under schedule 1 but I do not know why I have been refused." The Home Office would then have to explain why the refusal was justified.
The new clause must be considered with an amendment to the schedule. In the Chair's wisdom it has not been selected for discussion tonight, but it may be discussed on Thursday. The two propositions are linked. I hope that the Home Secretary will not reply to my right hon. Friend's submission by arguing that a major ingredient has been left out. It has not. If the Home Secretary is persuaded by our arguments he will appreciate that our proposals represent one way of tackling the problem.
In Committee the Minister argued that the system had worked well since 1914 in naturalisation cases and since 1973 in registration cases. He misunderstands the argument. The system has worked well because nobody who has been refused has understood why. Nobody could kick up a storm. If people had known there would have been a regular storm about some decisions.
I do not wish to repeat the stories of cases referred to in Committee, but one case turned my view. I refer to the case of Albie Sachs. A man's privations and experiences in a South African gaol are now part of the repertory of the English National Theatre—and the Home Secretary might take his wife there to watch the Albie Sachs play as part of the tribute that we pay to that man. He would have been refused citizenship if I had accepted the recommendations of officials. I refer not only to officials at assistant secretary level but to the personal endorsement of the permanent secretary in the Home Office. That case shows that there is something wrong with our system. If the case had been aired in the press and everybody had known the arguments many people who have seen the play and been deeply moved by it would be furious that that man might have been refused citizenship. There are many similar cases.
I am sorry that the right hon. Member for Orkney and Shetland (Mr. Grimond) is not in the Chamber, because I remember well his case involving the English language. He described in Committee a constituent of Polish culture who was unable to express himself to a Scottish policeman. However, the man was able to express himself in the company of people in London. He was refused citizenship because a Scottish policeman did not understand his Polish accent. Such a case would discredit the present structure of applying for naturalisation if it were widely known. As far as I know, none of those cases has been previously discussed in public because no one, except me, is unwise enough to do so. There are many 831 cases that, were the realities known, would lead to a discrediting of the system. It is wrong to continue with that system.
Because of the Albie Sachs case I reached the view that we must have objective criteria. I am willing to accept that the definition of such criteria may be difficult. The proposals put in Committee, and the later amendment that may yet be discussed, may not be fully adequate, but it is not beyond the wit of man to define an objective criteria. It would be a vast improvement on the present position. If, in the course of time, such criteria were felt to be defective in some way, they could be amended. At least the system would be in the open. It would be subject to appeal. Someone else, apart from Home Office civil servants or Ministers, could apply his mind to the question "Is that a man whom we want as a British citizen?". I do not say that those who do such work at the Home Office are malign or in any way insensitive to the feelings of the applicant. The real issue is the judgment about whom we want as British citizens.
Some of the Minister's remarks were typical of the attitudes reflected by officials in such cases. They say that it is true that a man has not yet been made bankrupt and has not yet committed a crime, but that he is so near to it, or is in such deep financial difficulties, that there is a possibility that after he has been granted citizenship he will become a cause celebre or a newspaper case, and people will say that we have discredited Britain because we allowed that man to become a citizen.
I well understand the sense of public responsibility that dictates such an attitude, but the question whether the public would regard that as being an acceptable case should not be decided by civil servants or even by Home Office Ministers. It should be decided by the general feeling of the community at large. The issues about homosexuality and sexual behaviour would have been decided differently 10 or 15 years ago by public opinion. They are still being decided by officials who have had handed down to them a tradition of making decisions about such behaviour—a tradition that they continue to incorporate in their decision making although it is not necessarily the pattern of current public opinion. Such matters are best dealt with by an appeal to an objective panel—perhaps judges or adjudicators—who, because the decision takes place in public, can better reflect current public opinion.
The issue is vital in determining whether what we achieve by the Bill is acceptable to the public at large. The Minister said that there had not been many complaints, but many more people will now be applying for citizenship than in the past. Because of the Government's decision to take away the right to register automatically for those who entered Britain before 1 January 1973, many more will have to go through the test. The Government have decided that women will not be granted citizenship automatically on marriage. Therefore, all women will have to go through the test. Many more will have to go through that barrier.
Many people may, for one reason or another, be thought not to be of good character. I am still not sure whether the Home Office regards it as not being of good character if one has in some way misled the immigration officials about one's status in a way that is now accepted by the courts as being fraud or deceit. For example, one 832 may not have said something to an official, even when not asked the question, which had the official known about he would have regarded as material to the application.
Nobody in his right mind, apart from the judges in the High Court, think that that is fraud. But the judges think that it is fraud and therefore it is the law. It is considered by Home Office officials to be fraud. If it is regarded as fraud, presumably it invalidates any application for citizenship. I assume that the Home Office will revoke citizenship, even after it has been granted, if it thinks that it was obtained by fraud. If that is so, it will cause immense difficulties for some of those who entered Britain in the 1960s and 1970s, when procedures at the ports were rather different from what they are today.
People will have thrown at them things that they said or did not say, or half said, 20 years ago, as part of the apparatus of deciding whether they are British citizens. That was not the case in the 1950s and 1960s, when they applied for naturalisation. No one had to go through that sort of scrutiny. But people will have to do so now, especially the new Commonwealth immigrants who entered Britain in the 1960s and 1970s. If that is the position it is untrue to say that we are perpetuating what has gone before. We are perpetuating something that will have a much deeper bite on a wider section of the community and that will cause a great deal more concern than was caused in the past by naturalisation. For that reason, above all others, we should try to achieve some system of appeal such as that indicated in the Bill.
Mr. J. Enoch Powell
I want to say briefly why I regard the new clause as radically misconceived. There is no such thing, and cannot be such a thing, as a right to be naturalised. I say that in two senses—in the light of the Bill and upon more general considerations.
The hon. Member for York (Mr. Lyon) inadvertently referred to a person entitled to naturalisation under schedule 1. Of course, schedule 1 does nothing of the sort, It sets out requirements that must be fulfilled in the opinion of the Secretary of State. It does not say that a person who fulfils the following conditions shall be entitled. In terms of the drafting of the Bill some of us, more than others, are familiar with the parts that include the word "entitlement", and where the Bill is stating or creating a right. In the case of naturalisation, the Bill does not do that.
Perhaps the hon. Gentleman did not go far enough. He said that we cannot have the new clause unless we have much more precise definitions and also a requirement for disclosure. I go further. We cannot have the new clause unless we redraft the Bill to write into it a justiciable right to naturalisation. If we were to set to work to do that we should discover that we were attempting something that was inherently contradictory.
I agree with the hon. Gentleman, that there are some cases where persons will in future look to naturalisation where I would have wished to see a right written into the Bill. It is not my fault that those who are married to British citizens do not have a right, by right of their marriage, to be British citizens. In general the Bill does not, and cannot, create a right to naturalisation. The essence of naturalisation is that persons who do not belong are accepted as for the future belonging in the full sense to the community. It would be inconceivable that we should have a law under which those who do not belong can say "We 833 have a right to belong". That is an inherent contradiction of the definition and nature of citizenship, namely, that those who do not possess it can have a right to it.
The Bill could not create a right to naturalisation, but the clause is placing discretion in the hands of a tribunal. It is not even placing discretion in the hands of one of the normal courts. It is creating a special tribunal and is providing that the decision shall be made by that tribunal. I know that in the form of the clause this is an appeal. However, if there is an appeal in these circumstances, does not the House suppose that it will become normal form to say "Let us try it on with the appeal"?
In effect, the clause is seeking to vest an executive decision—it is vesting a grant of a privilege, not the admission, definition or attribution of a right—to grant a privilege on behalf of the community not in the Executive but in a tribunal. The consequences of that are serious.
The essence of our constitution is that the discretionary acts of Government are performed by responsible Ministers, who can be called to account in the House. I know that few cases of the refusal of naturalisation come on to the Floor of the House, though many come potentially to the Floor of the House in that they become matters of correspondence, discussion and debate between hon. Members and Ministers. There would be little use in hon. Members carrying on correspondence with Ministers if, behind that correspondence, there was not the possibility of claiming the attention and the opinion of the House if the matter seemed to it of sufficient importance, and if we did not believe that the Executive's power was being properly exercised. I repeat that it is of the essence of our constitution that where acts of a discretionary character are taken by Government, their execution is vested in Ministers who are responsible to Parliament.
§ Mr. Alexander W. Lyon
How does one raise such an issue on the Floor of the House or through the Parliamentary Commissioner if the Minister's answer is always the same, namely "We are not bound to give reasons and we do not propose to give them".
The hon. Gentleman cited an example where in his opinion it would have been scandalous if naturalisation had been refused. I shall assume that at that moment the hon. Gentleman was not in office but out of office. I do not believe that it would have been beyond the ingenuity or determination of the hon. Gentleman to secure a debate in the House on the subject and to raise the matter. It is a matter perfectly capable of being properly raised within the scope of the rules of order. The issue would be the method in which a Minister had exercised a discretion accorded to him under an Act of Parliament.
§ Mr. Davis
Is not this theoretical? The right hon. Gentleman is arguing that one can raise such a matter at Question Time or make it the subject of an Adjournment debate. The Minister's response will undoubtedly be the same, namely, that alluded to by my hon. Friend the Member for York (Mr. Lyon). How can one expose a failure on the part of a Minister to apply his mind properly when the Minister hides behind such a response?
I have known case after case—I am sure that such has occurred in the time of the hon. Gentleman—where what has begun as an individual case has become a parliamentary occasion. Such matters have sometimes led to the resignation of the Minister concerned. Crichel Down began as an individual case. It was an act of administrative judgment. It ended in the resignation of a Cabinet Minister. It is absurd to dismiss my argument as theoretical.
I agree that our constitutional rights and practices are matters of theory, but the fact that they may be stated in theoretical terms is not to say that we cannot exercise them extremely effectively in the House.
The clause is asking the House to transfer responsibility for discretionary executive acts of Government from itself to a specially created tribunal. That is contrary to our constitutional practice it is contrary to the functions and duties of the House and it rests upon radical confusion. I hope that the House will not accept the new clause.
§ Mr. R. C. Mitchell (Southampton, Itchen)
The right hon. Member for Down, South (Mr. Powell) made a most extraordinary speech. There are many examples of executive discretion being subject to a tribunal. For example, if a supplementary benefit officer, using his executive discretion, refuses to grant someone a form of supplementary benefit, there may be an appeal to an appeals tribunal. That is a practice that is well established throughout a range of activity in our Government machinery. That has been the position for many years. The new clause seeks to create nothing new.
This is an important new clause but there are one or two other factors to consider. First, the applicant should be given the reasons for refusal except in certain limited cases that involve security.
One of my constituents had been applying for many years for naturalisation. Each year he had been refused without any reason being given. He eventually came to see me. I wrote to the Minister—this was at the time of the previous Labour Government—and I received exactly the same answer. The letter stated: "We regret that we are unable to grant naturalisation to this citizen. It is not our practice to give reasons." I wrote again and asked the Minister whether he would give me the reason on the understanding that I as a Member of Parliament would undertake to keep it confidential. I received a blank refusal. However, a sentence towards the end of the letter suggested that I should advise my constituent to apply again in two years' time. I do not know whether that was meant to give me a hint of the reason for the refusal of naturalisation.
I took up the matter with my constituent and went through all the likely reasons involving character—for example, whether he had been adjudged bankrupt or whether he had committed any criminal offences. We even discussed driving offences. I told him that he should apply in two years' time. He asked me what he should do in the intervening two years. He asked "How do I change my life so that I shall be a suitable candidate in two years for naturalisation if I am not a suitable candidate now?" I could not answer that question and I do not think that it could be answered by anyone else. In such circumstances the system becomes ridiculous.
In cases of refusal the reasons should be given so that the applicants have the chance to refute them. It is necessary to have a second stage—some form of appeal 835 tribunal. I do not know whether the tribunal that is proposed in the new clause is exactly the right one—better brains than mine have formulated the clause—but there should be some appeal procedure.
The difficulty with ministerial discretion is that it is not necessarily consistent. I presume that when an individual case is sent to the Minister, a civil servant will present a brief to the Minister to help him to come to a decision. I sometimes wonder whether that brief is exactly the same in all cases. I suspect that much depends on which Minister is in office or which Government are in power. I have noticed a different attitude towards ministerial discretion under the present Government than under the previous Government.
Many Members of Parliament will have noticed that a much harder line on discretion has been taken by the present Minister than by some of his predecessors. I do not need to mention the disgraceful case of Mohammed Sadiq, with which the Minister of State will be familiar. It must forever be a blot on the conscience of the Home Office. That is just one example; there are many others.
There are many cases today in which the present Minister has refused discretion, but I could almost guarantee that under some previous Ministers that discretion would have been granted. Does that mean that one Minister is more willing to override the advice that is given by civil servants? Does it mean that the civil servants' advice is slanted because they know the tendencies of the Minister? It boils down to the fact that the question of discretion is so subjective as to be utterly meaningless.
Therefore, we need some objectivity. That can be brought about by giving the reasons for a refusal and by an appeal against those reasons.
§ Mr. Edward Lyons (Bradford, West)
It has been said that what distinguishes us in our constitution, unwritten though it is, is the fact that we have a number of recourses against acts of the Executive which appear oppressive. We can go to Parliament, to the media and to an independent judiciary.
The proposal in clause 41 is to exclude entirely, for the people living in this country, any right of appeal to the courts. That is something which one expects to find in a totalitarian regime. One finds it in countries such as South Africa, where legislation expressly excludes recourse to the courts for persons living in that country in certain situations.
I hope that no Government would enable a situation to arise in this country in which no one can go to the courts and the courts are thrust to one side. That happens in clause 41. There is no right of appeal. More than that, the clause goes out of its way to say that there shall be no judicial review. What does that mean? It means that administrative law is also excluded from the Bill. That is to say that there can be no application to the divisional court to see whether the processes by which the Home Office reaches a decision accord with the rules of natural justice and whether the criteria which are being applied are proper.
It is in that context that one considers the concession that the Government made, late in the Committee stage, when they inserted as clause 41(1) the declaration that any discretion vested under the Act by the Secretary of State or his surrogates. 836shall be exercised without regard to…race, colour or religion".That sounds very grand but when one reads directly after that that there shall be no appeal or even a review against any decision of the Home Office and that one should not know what the reason for refusal is, how on earth can clause 41(1) be meaningful? There is no means of knowing whether the officials acting under the Secretary of State are or are not having regard to race, colour or religion. Unless one can know how that decision is reached as a general rule, what possible method is there of checking that clause 41(1) is being observed?
It is essential to give meaning to clause 41(1). There should be a right of review of decisions. We do not have it. I believe that the Government are determined not to give it and came to the conclusion that they should insert the words about not having regard to race, colour or religion only because they knew that they could carry this provision, which denies all access to any tribunal in relation to any decision which is arrived at by the Home Office.
We know that the Minister of State is in charge. We perhaps know who the civil servants are. However, in 20 years' time when there is a different Minister, who may have different views, and other civil servants, who may not even tell the Minister how they have altered the criteria by which they are judging the applications, there will be no means of checking what is going on.
It is not satisfactory to say that a Member of Parliament can write to a Minister. Everything depends on the Minister. He may be overburdened with work and may take a narrow view. He may take a different view from his predecessor. The Member of Parliament may not like the person who is approaching him for help. He may say that he will not raise the matter and that he will not help that person. If one has recourse to the courts, that is a right: to go to the courts. It does not matter whether the solicitor likes the person concerned; his duty is to take the matter further and to give his best advice, admittedly for a fee. A Member of Parliament has no obligation to take up a case for a constituent. Every hon. Member knows that Members of Parliament take up a case in different ways. It is wrong that the rights of a person in this fundamental area should be defined by the personality, views and capacity of his current Member of Parliament.
Therefore, one must object to the absence of any right of appeal. It is not as if the criteria in schedule 1 for naturalisation are simply factual criteria. Good character is a matter of opinion. Residence, curiously enough, is often a matter of opinion because one civil servant may believe that if an applicant has been out of the country for a year in the last five, he is disqualified because he has not been resident for the previous five years. Another civil servant may take a different view and say that he draws the line at 15 months and that, if the applicant has been out of the country for only 12 months, he can go through. It is a matter of opinion. The question where the man intends to live in future is a matter of opinion. Different people may form different opinions about the applicant's intentions. When the opinion of the Minister and his underlings is of such crucial significance, it is more important than ever to have a right of appeal.
There are various ways of setting up an appeals procedure. New clause 4, proposed by the official Opposition, is one way. Another way is to use the same procedure which we have for immigration appeals, to go 837 to an adjudicator and from an adjudicator to an appeal tribunal. That is happening now. That is the substance of new clause 12, which has been tabled on behalf of the Social Democratic Party, but has not been selected. Whatever the system of appeal, there should be a system of appeal in the first place. When there is a Division on new clause 4, as we have been promised by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), that new clause should be supported by all members of the Opposition and by anyone in the House who values the judiciary as an additional check on the powers of the Executive.
Government Members often say that official Opposition Members are always denigrating the judiciary, but to take away recourse to the judiciary is a fundamental attack on its power. The judiciary would not shrink from accepting responsibility for appeal and judicial review of ministerial decisions. It is said that in this area it is wrong to set up a judicial decision against a Government decision, but that is not correct. If an appeal system is to function properly, the Government must give the reason for refusal. If they say that it is that residence requirements have not been satisfied, but the applicant disagrees, by giving that as the sole reason for refusal the Government enable the matter to be reviewed by a judicial tribunal. They would not be hiding the reasons for refusal. Because of security, the Government may at times feel it unwise to give reasons, but generally there is no reason why they should not when the refusal is on the grounds of residence, intention of future residence or language.
In effect, the Minister's decision on the grounds of language is simply on the recommendation of a police officer. That is the ministerial decision. A police officer visits a house, and, often by reference to his own education and ability to speak English, decides whether the applicant speaks it well enough. He makes a report on which the Minister acts. The civil servants or the Minister have not listened to the applicant. The ministerial discretion is, in fact, the discretion of a police officer, on which the Minister puts a rubber stamp. If the decision on citizenship is to be made by one police officer, the need for appeal is even more important.
In 1980, 190 refusals were based on inadequacy of ability to speak English. The number will increase. The hon. Member for York (Mr. Lyon) pointed out that the Bill will compel foreign and Commonwealth wives to apply for naturalisation or registration and to pass a language test. That will prevent many wives from obtaining British citizenship, as they will not be able to pass the test. With an increasing number of refusals on the ground of language, and the decision often being made, in effect, by a police officer, the need for an appeal system grows ever stronger.
I hope that the debate will be seen as dealing with civil liberties, to sustain the right of every citizen and non-citizen resident in and subject to the law of the country to go to the courts for redress. Whatever the 1948 Act states, we should take the opportunity to strike a blow to strengthen the rights of individual citizens and residents to go to the courts.
Clause I is relevant to the appeal procedure, since it removes the right of every child born here to be British. 838 If a child's parents are not British but are settled here, he can be British. Many applications for citizenship may be refused. The applicant may believe that one parent was settled here at the time of birth but the Home Office may not. How can the matter be resolved by an independent tribunal if there is no right of appeal? That is an additional reason for an appeal system.
The Government should give effect to clause 41(1), which states that there should be no discrimination on grounds of race, colour or creed, by allowing decisions to be reviewed. From the figures given by the Minister, it is obvious that more than 75 per cent. of the refusals in 1980 were based on residence and language and not on good character, which may involve security. At least in those cases, the Government should give reasons for refusing and allow a right of appeal. I hope that they will reconsider.
§ Mr. David Crouch (Canterbury)
I listened with great interest to the hon. and learned Member for Bradford, West (Mr. Lyons). He addressed us with knowledge and passion. He is a lawyer, and knows what he is talking about, and he feels what he says. However, I do not agree with him about human rights. There should be a right of appeal, but, strangely, I am inclined to agree with the right hon. Member for Down, South (Mr. Powell) that naturalisation is not a right but an opportunity and privilege. There is no human right to naturalisation.
Strangely, sometimes our opinions change as a debate progresses. When I listened to the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), for the first 20 minutes I could not disagree with him. The title of the new clause, "Right of Appeal", is such that no one could oppose it. It is a right that should exist for everyone, whatever his nationality or position, here or elsewhere. The right hon. Gentleman was persuasive, and I was inclined to believe that we should not leave the matter to the subjective decision of the Secretary of State, advised, also subjectively, by his officials.
However, as I listened to the hon. Member for York (Mr. Lyon) argue learnedly and cogently why we must have the right of appeal, I realised that we need yet another amendment. The new clause, combined with schedule 1, would not be enough, as the right hon. Gentleman admitted. If ever a schedule was full of generalities, schedule 1 is. Who determines what is good character? A lawyer or a judge cannot determine it better than I, the Home Secretary or his officials. What is a sufficient—that is a strange word for lawyers—knowledge of the language? That description is not enough.
I speak as an amateur, from the legal aspect, although not in the context of meeting people seeking naturalisation. As has been said, we all have to respond to constituents seeking help with naturalisation papers. When the point was raised by other hon. Members, I began to consider the case of a constituent, who may already have one or two references from people who he worked with, asking for help and a reference.
Such a case arose in my constituency recently. An Indian citizen seeking nationalisation came to me for assistance. He was a milkman, known to many people, and had many references to prove his good character. He had a reference from the local parson. In due course, willingly, not as an amateur, but as a Member of Parliament knowledgeable of my constituent because of the references I had seen, I wrote to the Minister of State strongly backing 839 up the application. I do not yet know the answer, but I wonder whether my support for my constituent influenced the subjective judgment of the officials in the Home Office and finally the subjective judgment of Ministers. I hear one of my hon. Friends say "Not a chance", but how do we know? Nobody has told us today. We do not know.
§ Mr. Cyril Smith (Rochdale)
The Minister may be able to make a proper judgment on matters such as character, but what about language? Does the hon. Gentleman agree that whereas somebody appearing in person before a tribunal could convince or fail to convince the tribunal that he had a sufficient knowledge of the language, that right does not apply if the Minister takes the decision?
§ Mr. Crouch
I am about to become more liberal. I confess to the hon. Gentleman that that is a point upon which I stumble. If it is true that a policeman knocking on the door determines the essential element in a person's requirement to become naturalised, I am not happy about that. I leave that comment in the air, to descend where I hope that it will descend, namely, on the Government Front Bench.
As I promised, I shall now be liberal in my thoughts. Up to now, I must have sounded over-reactionary in a way that is not normal for me, but I was reacting to the debate. My liberal thought on the matter is this. Let us suppose that we followed the right hon. Gentleman's advice and accepted the new clause. There is nothing wrong with the drafting. It is what it ultimately implies that worries me. It implies an exact specification, written down in yet another new clause about good character, sufficient knowledge of the language, and many other aspects.
All this will have to be spelt out. I can see the lawyers and draftsmen getting involved in spelling this out in great detail, such as only an Army staff officer could imagine. I am being very considerate to ordinary civil servants in that comment. I can then envisage officials deciding that before they go to the Minister of State or the Secretary of State they must be doubly careful to dot their i's and cross their t's, and that they must be very careful about recommending anything, because the new clause will operate and the matter will go to a tribunal. They will say, "We must not be found to have shown any discretion or to have been liberal in our recommendations to the Minister." They will believe that they must be accurate to the letter and not so much to the spirit of the law.
As is only gracious, as the hon. Member for Canterbury, I shall give way to the hon. Member for York. Before doing so, however, I must point out that I am an amateur in this. I am not good enough to argue the legal niceties of the matter, but I can understand the common sense of it. I can see that we would rob the officals, and certainly the Secretary of State, of all discretion in the matter. I do not know how they use their discretion, but I think that we might rob them of it. Therefore, I think that it might be better to leave things as they are and to trust successive Home Secretaries to use their judgment in this matter. Is that so wrong?
§ Mr. Alexander W. Lyon
From the equal province of York, I would first say to the hon. Gentleman that there is nothing in the provisions that we suggest that would stop the Home Secretary being liberal. Under any proposal that we put forward, he is free to grant citizenship. Nobody will appeal against that. It is only an appeal against refusal 840 that is required. If Home Office officals are running around saying that they want to be liberal, there is nothing to stop them. Nobody will question that. This is specifically set out in the amendment to which I referred in relation to schedule I.
§ Mr. Crouch
I understand the hon. Gentleman. I am simply concerned that once we spell these matters out, dotting the i's and crossing the t's, people will stumble on a particular hurdle that they cannot get over no matter how liberal the Home Secretary is or how much discretion his officials wish to give him, because those people will not be able to meet the exact definition of what determines whether they have the right—if right it be—to be granted naturalisation papers.
I would therefore leave it to the discretion of the Home Secretary. I would also leave this debate, which will continue yet, not to be altogether forgotten when the Bill becomes an Act, so that when the procedures are worked in the future Parliament will continue to be concerned about the matter. As the right hon. Member for Down, South said, it is not just the tribunal to which people go. Ultimately, this place is a tribunal. People can go to their Member of Parliament and have the matter raised here, not just in a letter but in an Adjournment debate, of under Standing Order No. 9. A great protest can be raised. It has happened on other matters. To suggest, as hon. Members have, that this does not and cannot happen is to be blinkered about their real opportunities to serve their constituents.
Therefore, albeit having listened to the wise arguments explaining why it should be otherwise, I should prefer to leave this matter to the discretion of the Ministers.
§ Mr. Cyril Smith
I support new clause 4 because I believe, first, that the Bill creates new forms of citizenship and that new procedures are therefore necessary to deal with new situations.
I accept entirely that there has not been a great deal of fuss in the past about refusal of British citizenship or naturalisation, but it is difficult to kick up a fuss about something when one does not know the facts. As has been pointed out, if one writes to the Home Secretary challenging a decision, he simply writes back saying that he is not at liberty to disclose his reasons, nor indeed is he required to do so under the existing law, and so on. I accept that that is his right at present, but in that situation it is very difficult to argue a case.
I intervened in the speech of the hon. Member for Canterbury (Mr. Crouch) because a case was brought to me last year in which I think that the man involved was refused on the grounds of language. When I met and spoke to him, I could not believe that his case had been refused on the basis of inadequate knowledge of the language. It could only have been with regard to the written word, as he certainly spoke the language fluently. I could only assume, therefore, that he had been subjected to some kind of written test. But it is very difficult to argue a case when the Home Office will not say that that was the reason, although one may suspect the grounds by reading between the lines of the reply, and so on.
I should have thought that this was only common justice. Like the hon. Member for Canterbury, I am not a lawyer. I cannot argue the niceties of the law like the right hon. Member for Down, South (Mr. Powell) or the hon. Member for York (Mr. Lyon), but I know that, now 841 and in future, one person will have the discretion to decide whether another human being should be given citizenship, and that that human being will have no right of appeal against the Minister's decision.
I have heard all the arguments about how the matter can be dealt with on the Floor of the House. They are theoretical arguments, which are not supported by practice. An hon. Member would have to have grounds for bringing a case to the attention of the House. As has been said, that is specifically precluded by the Bill. The Minister does not have to give grounds. Even if an hon. Member had grounds, my experience is that he would have a difficult task if he sought to argue an individual case.
There is nothing new about tribunals that can challenge the decisions of Ministers. There is nothing new about constituents having the right to challenge Ministers' decisions before a tribunal. In immigration cases, that happens all the time. The Minister may refuse a person the right of admission, the right to settle here, or an extension of stay. When that happens, people appeal to tribunals. For example, there may be a dispute about the right to bring relatives to Britain. When an applicant is turned down by civil servants he may write to the Minister, who may tell him to go to the tribunal.
Even after the tribunal has reached a decision, a Minister may exercise his discretion. Recently, there was a famous case in my constituency, in which I was partly involved but from which I later withdrew. I refer to the case of Anwar Ditta, which received great national publicity. The Minister exercised his discretion after the tribunal had refused admission to her children. The establishment of a tribunal for cases involving naturalisation will not limit the Minister's discretion. In supporting the new clause, I should have thought that I was helping the Minister. I should have thought that a Minister would be happy to pass on such responsibility to a judicial tribunal in the knowledge that his decision could be questioned. Indeed, any thorough democrat would welcome that. In addition, his decision could be questioned in a proper judicial court with evidence being adduced and so on. Therefore, there are strong grounds for supporting the new clause. The Bill creates a new situation, and new methods of dealing with it must be found.
I said that I would be brief, because the last new clause to be called is a Liberal one. The longer that I speak the less chance there is of discussing it. I strongly support the new clause because this is a matter of human rights. Someone will have the right to refuse citizenship to an individual and that individual—whatever the legal niceties—will have no right of appeal and no right to argue his case before an independent body. The decision may be made without the individual involved knowing the facts that are being considered. Human dignity and human rights demand that new clause 4 be accepted. I hope that the House will support it.
§ Mr. Peter Archer (Warley, West)
I was not fortunate enough to serve on the Committee dealing with the Bill. Hon. Members may laugh, but perhaps it is a matter of assessment. I feel like someone who has wandered into the middle of a conversation. However, I have had as many distressing constituency cases of this type as has any hon.
842 Member. And I recollect debates on the Immigration Bill 1971. As the hon. Member for Rochdale (Mr. Smith) pointed out, we had long discussions about the difficulties of appeals and about how they could be surmounted. On that occasion, we managed to persuade the Government that the problems were not insuperable.
This issue is clear-cut. As the hon. Member for Rochdale asked, is the Secretary of State to have a series of completely unfettered discretions, which will deeply affect the lives of human beings, and for which he is unanswerable other than in the hereafter? Or is he to be recognised as human, like the rest of us, and as not claiming any divine power over other humans and thus answerable to some tribunal on behalf of the community?
I join issue with the right hon. Member for Down, South (Mr. Powell) on two matters. He advanced the startling proposition that unless there was a right, at least in certain circumstances, to nationality, there was no issue that was justifiable before a court. Every day of the week courts ask whether a discretion was properly exercised, whether it was based on an accurate assessment of the facts, or on an accurate interpretation of the statute. Every day courts ask whether the person who exercised that discretion had taken into account something that should not have been taken into account and whether proper weight had been given to all the relevant factors.
§ Mr. Jim Marshall
I do not wish to defend the right hon. Member for Down, South (Mr. Powell), but his point was clear. If conditions are set, and the applicant meets them, the Home Secretary may still say that he wishes to exercise his discretion. There is no entitlement to naturalisation. It is entirely a matter of the Home Secretary's discretion. Even if the applicant successfully jumps all the hurdles that are erected, there is no guarantee that he will be naturalised. Although I accept the new clause as it stands, the official Opposition must rethink their position. We are faced with a dilemma. Perhaps we should be prepared to consider giving a right to naturalisation when certain conditions have been fulfilled.
§ Mr. Archer
My hon. Friend and I are at one on this. I, too, should like to dispense with the language of discretion in the statute. As long as it exists, there can be no appeal on the merits of the case to any other tribunal. For the moment, we are faced with a Bill that uses the language of discretion. I am basing my argument on that assumption, if only because there must be a limit to the length of my speech. One can still ask whether the person who made the decision had fully understood the facts and the nature of the law that he sought to apply. One can still ask whether he took account of something that he should have excluded from his mind. At the very least, someone should be able to ask those questions. For that reason, I venture to differ from the right hon. Member for Down, South.
I also had the misfortune to differ from the right hon. Gentleman when he said that we did not need a judicial form of appeal, because there was always the House of Commons. My hon. Friend the Member for York (Mr. Lyon) has given one answer. If the Minister can say that Parliament has told him that he does not have to give any reason for his decision, that is an effective damper on any debate in the House. There is a more practical difficulty, which is well known to anyone who has served as a Law Officer. The House is hot the best forum for discussing 843 some personal decisions. There may be embarrassing personal details, where a court would probably sit in camera. The House has to do everything publicly. A Minister might want to make an allegation against someone for perfectly proper reasons. He might wish to say that he did not exercise his discretion in the applicant's favour because he had acted wickedly.
In the House, evidence is not called and there is no cross-examination. There is little opportunity for argument about the details of any allegation. As a result, the situation might be embarrassing. So the House is not always the best forum in personal matters. The Government's position is clear. It is enshrined in clause 41(2). They want to eliminate all power for the courts to intervene. That may be deeply shocking, but I doubt whether we should be surprised. The Home Office has never enjoyed giving reasons for its mental processes.
In an article inThe Daily Telegraph of 27 April, Mr. Paul Sieghart spoke of that proposal asA clause without any known precedent in British statute.In Committee the Minister said that that was wrong and pointed to section 26 of the British Nationality Act 1948. He said that that was the precedent. Whatever other differences there may be, I can say what was in the mind of Mr. Sieghart, because I ventured to ask him.
Perhaps I ought to declare an interest. I, too, am a member of the Council of Justice, and Mr. Sieghart was rather encouraged by the council to write the article in question. What he had in mind was that there had been no previous instance in statute of an attempt to exclude judical review under the new rules, for the very good reason that until four years ago there was no judical review. Until 1977 it had not been introduced. The rules of court were introduced in that year to follow the recommendation of the Law Commission. That was what was in the mind of Mr. Seighart. This is the first attempt to exclude that procedure.
It is a battle, which goes back a long way, between the parliamentary draftsmen seeking a form of words with which to place the decisions of the Executive beyond review in the courts, and the courts finding ways of looking round the corners. The statute says that there should be no appeal, so the courts look to see whether the decision was within the jurisdiction of the person who purported to take it. If the statute says that his view of his jurisdiction shall be final, the courts look to see whether the decision that he took was the one that was committed to him by statute.
Some of us were brought up from our earliest days as law students on cases like Board of Education v Rice in 1911 and on a whole series of cases until the Anisminic case in 1969. Some of us remember the Tameside case in 1977—it is deeply etched on our hearts—where the courts in effect said "It appears that the matter was left to the Minister to decide, but he did not ask himself the right question. What he thought he was asking himself was not what he was really asking himself."
Even in the high-water mark case of Liversidge Anderson in the middle of the war, when everybody was desperately concerned that the Executive should have the most adequate of powers, the speech that has been most frequently quoted is the dissenting speech of Lord Atkin. He was troubled by a similar clause even then. He said:It is a decision which is made by an Executive Minister and not by any kind of judicial officer. It is not made after any inquiry 844 as to facts to which the subject is a party. It cannot be reversed on any appeal and there is no limit to the period for which the detention may last".With the exception of the "detention", Lord Atkin might have been speaking about this provision, which can be as deeply affecting in the life of an individual as detention. As my hon. and learned Friend the Member for Bradford, West (Mr. Lyons)—I think that I can still call him that—pointed out, if the clause is carried it will be in direct conflict with the other subsection of clause 41, because no declaration can be other than empty words, sounding brass and a tinkling cymbal, if it can be argued that the person who took the decision does not have to give any reason. Nobody can investigate whether he took into account something that the other subsection said he should not take into account. He will tell us—if he chooses—that he did not, and that will be the end of the debate.
I am not usually given to quoting, and I do so on this occasion to show that there is a large body of opinion which is deeply opposed to the Government on this issue. It is not only the judges. It is a provision of a kind that is deplored by all constitutional writers, from Dicey onwards. Dicey, in his "Law of the Constitution", spoke of the rule of law. He said:It means in the first place the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the Government.I could quote another dozen authorities, but I should like to give one other high-water mark. It is a quotation from "The New Despotism" by a Lord Chief Justice and former Conservative Minister, Lord Hewart. Speaking of exactly this kind of provision, he said:There can be little doubt that it is the officials in the Departments concerned who initiate the legislation by which arbitrary powers are conferred upon them.I am not sure that I would necessarily wish to jump to that conclusion—it may be unfair—but that is what he said. He added:When Parliament passes such legislation one may wonder how many Members outside the Ministry know what they are really doing. How much less do the people know what is being done in this respect by their representatives? It is inconceivable that such legislation would be passed, at all events without protest, if the legislators knew that they were sapping the foundations of the constitution. All great constitutional lawyers have recognised that it is the rule or supremacy of the law, administered by independent judges, that is the basis of all our constitutional liberties, and it is this characteristic of the British constitution which above all makes that constitution admired throughout the civilised world. Arbitrary power is certain in the long run to become despotism.8.15 pm
The most recent authoritative work on this question is that of Professor de Smith on "Judicial Review of Administrative Action". He said:The role of the courts in reviewing administrative acts and decisions has become far more active and creative. This is a phenomenon of the past 15 years and its origins are not so easily identifiable but it must have owed something to post-Franks ethos, to an increase in awareness of the more impressive performance of United States, France and some Commonwealth countries, to a judicial willingness to adopt a more purposive approach to the interpretation of statutes, and to the indirect influence of academic literature upon practitioners, as well as to the resourcefulness of individual judges.When Professor de Smith speaks of the more effective way in which these things are done in the United States, he reminds us that people find no problems there about the judicial review of exactly this kind of discretion. The way 845 that they deal with an application for naturalisation is set out in a guide prepared by the American Civil Liberties Union, which says:If information is developed that indicates that the applicant may not be eligible for naturalisation, he is subjected to a thorough personal investigation which includes the right to subpoena witnesses before a naturalisation examiner. The applicant is entitled to be represented by counsel and to be informed of adverse evidence, to introduce evidence on his behalf and to examine witnesses. A recommendation that the applicant be denied naturalisation must be accompanied by a summary of the evidence, findings of fact and conclusions of law, and where the denial of naturalisation is recommended the petitioner is entitled to a full hearing before the court, with a right to produce witnesses to support his application.
§ Mr. Archer
I am not sure that I can answer my hon. Friend's second question off the cuff, but I am told by my friends in the American Civil Liberties Union that there is no doubt it has been successful. We do not know whether the system here is successful, because no one is ever in a position to complain to the courts. But in the United States of America there has been complaint from time to time and everyone seems to be satisfied with the system.
The media appear to take the same view of this kind of provision as do the Opposition. I have looked at some of the things that the media said immediately after the Tameside case. The Daily Telegraph spoke of Tameside asA fresh curb on growing state control".TheDaily Mail headline wasSchools verdict a big step forward in the fight for liberty".The Times said:At the same time there is a robustness about all the appeal judges' approach to the case, a willingness to examine grounds for challenge and a desire to give full weight to statutory limitations on ministerial discretion. All that is heartening evidence that the long retreat of the judiciary before the aggrandisement of the executive has been halted".That was in reference to a Labour Minister, but I am sure that the press would be fair enough not to introduce distinctions based upon the party affiliations of the Minister concerned. So the newspapers appear to take the same view of this attempt to exclude ministerial discretions from judicial review, to hide them in a corner away from the light of day.
But the Conservative Party itself has a long-standing view on this question. I could produce quotations from Lord Hugh Cecil, but in view of the shortage of time I shall deny myself that pleasure. But I should like to offer two quotations. The first is from Sir Arthur Bryant in "The Spirit of Conservatism". He said:Justice enforced by the State gives to each man some measure of certainty, enabling him to know where he stands and to plan for the future accordingly".That was not my selection. It was quoted by a young Conservative politician called Quintin Hogg in his book "The Case For Conservatism" in 1947. He added these words:The rule of law is as much opposed to regulation and dictatorship as it is to licence or anarchy. What ought to control the individual is not the whim of another individual or group of individuals, even if these are for the moment in legitimate enjoyment of all the panoply and prestige of office.It would be distressing if the Lord Chancellor felt a difficulty in supporting the Bill in its present form in view of what he wrote, very properly, in the past.
846 The Conservative Party has from time to time departed from some of the matters that were previously in its philosophy. I do not believe that it has departed on this occasion. In its election manifesto in 1979 it said:We will see that Parliament and no other body stands at the centre of the nation's life and decisions, and we will seek to make it effective in the job of controlling the executive.The Secretary of State for the Environment has sought retrospectively to charge local authorities in respect of budgets arrived at before he was given the powers, but I do not believe that even the Conservative Party has departed from its manifesto as completely as that.
If the Secretary of State resists this new clause, and if he goes to another Conservative Party conference, I hope he will be told "We believe in the control of arbitrary power. Conservative theorists have said it since Lord Hugh Cecil. The Lord Chancellor believes it. We said it in our election manifesto. It is part of the British Constitution. That principle is not just for trade unions and Labour councillors. It is valid for all people irrespective of their name or the colour of their skin."
When the Minister of State adopted the other subsection in clause 41 he must have felt that too, because he could not have intended it to be just an empty declaration. At the moment it only confirms the right of every citizen and would-be citizen of the country under the European Convention on Human Rights. How much better to get the matter sorted out over here. If the Secretary of State were to accept this new clause he would earn the approval of the judiciary, of all the authoritative writers on constitutional law, of the media who applauded the decision in the Tameside case, of the Lord Chancellor and those whom he quoted, and of those who drafted the Conservative manifesto.
Who is there left to please? Surely not the Secretary of State himself. I believe that he is a humane and fair man. I do not think that he would wish to conceal his decisions behind a curtain of mystery. Is it the officials in the Home Office? It would be unfair to jump to any conclusion when they are not here to speak for themselves. Whomever it is he wishes to please, if they want to see decisions taken under cover of darkness, not just decisions about security, where there may be problems, but all decisions arising from the Bill, and if they want to see decisions that are not justified openly and honestly, I say to the Secretary of State that he should not trouble to please them, because they are not worth pleasing.
§ Miss Jo Richardson (Barking)
I almost hesitated to rise, because of the powerful character of the speech of my right hon. and learned Friend the Member for Warley, West (Mr. Archer). After that speech there is very little to add. I do not see how the Secretary of State can resist that case. I wish simply to make a couple of brief comments.
The whole debate has been about civil liberties and the liberty of the individual, whether he or she be a citizen or, as my right hon. and learned Friend said, a would-be citizen of the country. It is about the right of a person to know what is being said about him and the right to challenge it. We have heard much about the list of criteria in schedule 1 on which a person is going to be judged for citizenship. As has already been said, one of the items is good character. We are given to understand that the decision is linked with the visit of a police officer who talks to the individual.
Presumably the police officer decides whether the person being interviewed can speak English. We are also 847 led to believe that the police officer may have to make a judgment about the character of the person who is being interviewed. I am not satisfied with that. My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) quoted the Minister of State, who said that a number of other factors are to be taken into consideration. By implication the Minister of State gave a list of the matters that were not taken into consideration in arriving at a decision about the character of an applicant for citizenship.
The Home Office must have some form of test to decide whether a person is of good character. If the Home Secretary is to reply I should like to know how the process is carried out. For example, are the employers of the person visited? Are they asked for their view of the person who has applied for citizenship? Are neighbours quizzed about the character of the individual? Are friends or people in the local pub asked whether the chap is a decent fellow, or whether he drinks too much? Is the wife or the husband of the applicant asked whether the person comes home late, or has girl friends, boy friends, men friends, or whatever?
By what method does the Home Office decide to grant citizenship in each case? There must be a good deal of snooping. I use the word advisedly. It reminds me very much of the arguments that have been put in the House previously about the tests that I hope we have got rid of on the operation of the cohabitation rule in social security. A person who was in receipt of benefit and was suspected of having claimed that benefit fraudulently was snooped on by neighbours and by officials who were trying to find out whether the person was living with someone else. I believe that there is still an element of snooping.
We do not want to go down that road in regard to decisions on citizenship. I should like to give two brief examples of what I am trying to say. The first concerns someone whom I hardly know but who engaged me in conversation because we both had to wait a long time for a bus. A woman started to complain to me about a neighbour who was extremely noisy, according to her. She said she had suffered very much recently because of the noisiness of this neighbour. She wanted to know what she could do about it. This was put not just to-me but to the bus queue. One or two people asked what the person had been doing. The answer came as follows "Of course, he is black and he lives with a white woman. They have a child. They live next door to me and they have parties." I said "I do not think you should continue along that line, because it sounds racially prejudiced." She said "They are always having parties; you know what these black people are like". I discovered that during the five months when the couple had lived next door to this lady they had had three parties, two of which were over the Christmas holiday.
If a police officer or someone from the Home Office had visited that woman and asked her for an opinion of her next-door neighbour in connection with an application for citizenship, that woman would undoubtedly have given a bad character to an individual whom she hardly knew but against whom she had this tremendous prejudice. That is the sort of occurrence that we must guard against.
I have a Maltese constituent who has lived in Barking for more than 20 years, who has never been naturalised, whose wife is English, and whose children are British 848 citizens. Four years ago my constituent came to me and said "I have never thought about it before, but my children and my wife and grandchildren are asking why I am not a British citizen". He said that he had applied for British citizenship but had been refused. He spoke perfectly good English. He had a small business of his own, and no problems. The one small matter that he thought might have militated against the granting of citizenship was that some years ago he had been stopped for speeding. I assured him that I did not think that that could be the reason for the refusal. I had no method of checking. I took up the case with the Home Office and I was told, as every Member of Parliament is told, "Sorry, you cannot know the reasons; they are secret".
§ Mr. Bob Cryer (Keighley)
Does my hon. Friend accept that an important element of an appeals system is its openness, and that the way in which relatively minor offences are used by Government Departments behind a barrier of secrecy can be dangerous? Until comparatively recently, when a case was raised with me and other Labour Members of Parliament, the Department of Education and Science automatically warned each teacher about every offence he committed, including minor motoring offences such as driving without due care and attention, under penalty of losing his job. This system was used by bureaucrats as part of the administrative procedure, because it was not questioned.
§ Miss Richardson
My hon. Friend is right. We must have openness. There is some openness in, for example, the social security system, where appeals are possible. The only sensible, decent and honourable course is to tell people who apply for citizenship the reasons for refusal, so that they know exactly what they are up against. That is what the Opposition are trying to do in this clause by providing a right of appeal. If we do not do that, we can no longer talk about openness. We shall be seen to be acting with a secrecy that can be paralleled only by the secret trials of totalitarian regimes, which we all despise and deplore. It is an essential part of the tradition of British justice that we should pass the clause.
§ Mr. Raymond Whitney (Wycombe)
I am moved to offer a brief intervention in this debate by the remarkable contribution made by the right hon. and learned Member for Warley, West (Mr. Archer). He proceeded to create a magnificent structure, an edifice built of emotion and logic, which was impressive on the outside but virtually empty on the inside. The edifice, to put it at its kindest, was highly challengeable and debatable.
We were taken over a great sweep of legal history from Dicey through to Tameside. The right hon. and learned Gentleman quoted Lord Hailsham, in his early youth, and Sir Arthur Bryant, and prayed in aid of the rule of law. If this is a sign of the conversion of some other members of the Labour party to the importance of the rule of law in our affairs and in the protection of the individual against the over-mighty Executive, it is a conversion greatly to be welcomed.
But some leading members of the Labour Party, including the right hon. Member for Ebbw Vale (Mr. Foot), have been highly critical of Her Majesty's judges and it strikes an ironic chord when the Opposition propose giving new powers to judges when, in other areas, such 849 as bringing the trade unions within the law, the last thing the Opposition want is that judges should be brought into play to operate the law and to ensure fairness and equity.
The hollowness of the case made by the right hon. and learned Member for Warley, West is contained in the assumption that we are dealing with civil or criminal action and that justice is being meted out and the scales of justice must be weighed. That is not the issue. The issue is the gift of citizenship to someone who, by definition, has another citizenship.
§ Mr. Archer
Is the hon. Gentleman arguing that it does not matter if applicants for citizenship are treated unjustly?
§ Mr. Whitney
Absolutely not, but I wish the right hon. and learned Gentleman to understand that there is an important distinction and that his speech was powerful on the wrong premise. We are discussing the gift of citizenship by this country. The representatives of this country are the House and, therefore, the Government and it is justifiable that, when all the procedures and mechanisms have been gone through, the final repository of discretion should be the elected Government. It is not a question of declaring a person innocent or guilty. The Government will say "We are the guardians of British citizenship and we have the right to confer it or not to confer it."
It is misleading to suggest that a criminal judgment is involved. It is, finally, a political judgment and it is right to leave it firmly in the hands of the elected representatives of the British people.
§ Mr. Reg Race (Wood Green)
The hon. Member for Wycombe (Mr. Whitney) referred to trade unions and I should like to use an analogy that he may find interesting. What would be the view of the Government and Conservative Back Benchers if trade unions introduced a rule allowing them to exclude any applicant for membership without providing any form of appeal?
That parallel is relevant to the new clause. Conservative Members would table early-day motions, there would be editorials in theDaily Express andThe Daily Telegraph and all hell would be let loose. But in arguments about citizenship the Government and most Conservative Members are silent and wish to introduce a system which will be grossly unfair to applicants who will not know the basis on which administrative decisions about them have been taken.
My hon. Friend the Member for York (Mr. Lyon) referred to the possible confusion between people with the same surname who applied for naturalisation at different times. In my constituency there are many Greek Cypriots called Georgiou. As there is to be no appeal, no one will know whether, because of an administrative error, the Home Secretary has decided that the wrong Georgiou should be excluded from citizenship. That is one good reason for introducing an appeals system as set out in new clause 4. It would eliminate the simple confusions that can and, as has been acknowledged, do occur. When my hon. Friend the Member for York mentioned the matter, the Minister of State smiled in agreement as if he understood clearly what my hon. Friend was talking about, as I am sure he did.
The number of people going through the naturalisation system will be increased when the Bill comes into force. 850 It is important therefore that the language test, if there is to be a language test at all, is seen to be fair and above board. It should also be a test against which one can appeal. Many people will be faced with a situation vastly different from that with which they have been faced in the past. A Greek Cypriot family, for instance, may have been living in this country since 1973 or before. They are citizens of Cyprus who may have come here as refugees following the Turkish invasion. The different generations of the family living in the same house will have acquired different standards of English.
What happens when applications for naturalisation are submitted by the family as a whole? The children of the family, who may be attending school in this country, will presumably have an adequate grasp of the English language and will be able to satisfy any police officer or representative of the Home Secretary that they can meet the conditions for naturalisation. The parents may also be able to satisfy those conditions. A question may, however, arise over the position of the grandparents who possibly speak a preponderance of Greek or Turkish and use English only infrequently. They may find themselves on the margin of acceptability when the, police officer interviews the family.
The children and the parents may be accepted for naturalisation while the grandparents are refused. That will cause enormous difficulties within the family. The interpretation by the police officer of the ability of an individual to converse properly in English should go before an independent appeal tribunal to enable a proper decision to be made.
Another point about naturalisation exercises me greatly. A larger number of people will come within the naturalisation system as a result of the phasing out of the registration provision five years from the commencement of the British Nationality Act. Those who have spent a considerable period in this country will be faced with the hurdle of naturalisation. They include a large number who arrived in the 1950s, in the wave of immigration from new Commonwealth countries, holding passports of the United Kingdom and Colonies. When their country of origin subsequently became independent, they acquired a nationality that they did not know they had acquired by virtue of the independence orders passed by this House. Now they find that they are not United Kingdom citizens and that they will have to go through the naturalisation procedure. Their position is especially sensitive. If they are refused naturalisation without the Home Secretary giving any reason, they will feel very aggrieved about the manner in which the Home Secretary has carried out his functions.
This is another example of the increased friction that the operation of the Bill will produce. An appeal system should therefore be introduced for people who feel aggrieved by the Home Secretary's decision. Feeling on this issue in my constituency and, I am sure, in the constituencies of many of my hon. Friends, is running high. All those to whom I have spoken regard as completely indefensible a system whereby people cannot go to an independent body for redress and a review of their position. I therefore hope that new clause 4 will be accepted.
§ Mr. Alfred Dubs (Battersea, South)
I shall be brief, because other important topics are to be debated this 851 evening. I resent the fact that our debate today and subsequently is to be truncated by the operation of the guillotine, as happened in Committee.
The hon. Member for Wycombe (Mr. Whitney) made a surprising statement. He said that he regarded the grant of naturalisation as a political decision. I should think that nothing would justify the introduction of an appeals system against refusals more than the suspicion that naturalisation decisions were made on political grounds. Even in our long days in Committee, there was not one occasion when the Minister suggested that he would exercise his discretion on a political basis, and I hope that he will hotly deny that he has ever done so.
§ Mr. Whitney
I thank the hon. Gentleman for giving way. It is not a question of political grounds. This is not a judgment between guilty and not guilty. It is within the gift of any Government, or the State, as represented in the House. It is not political in the narrow sense that the hon. Gentleman suggests, but in the sense that Governments have the gift of citizenship. Virtually all Governments have that gift. I should be interested if the hon. Gentleman could point to any Government who hand over this power beyond the realms of Government. That is not the narrow political point that the hon. Gentleman says it is.
§ Mr. Dubs
It would be most alarming if a change of Minister at the Home Office were to result almost automatically in naturalisation decisions being made on different, though secret, grounds. Surely, individuals who seek to become British citizens and apply for naturalisation should not be subject to the whim of a particular Minister at the Home Office. That is why Labour Members object to the power being exercised in an arbitrary manner. I do not wish to dispute the semantics of what a political decision means. However, the description given by the hon. Member for Wycombe alarms me more than his original statement, because of the doubt that he casts on the process by which naturalisation decisions will be made.
To be fair to the Minister, he attempted to suggest in Committee—he was quoted by my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley)—that there was a semi-objective basis on which naturalisation would be granted. The hon. Gentleman discussed various types of criminal and other deviant behaviour, and whether such types of behaviour would automatically, or in certain circumstances, lead to naturalisation being refused. Having listened to what he said, I assume that the Home Office has worked out lists of criteria that it applies to any decision on naturalisation. It is then up to the individual Minister to decide whether the way in which the civil servants apply the criteria should be relevant in any case, or how the grey areas are dealt with.
I concede this much to the hon. Member for Wycombe: it is obvious that the way in which discretion was exercised at the Home Office when my hon. Friend the Member for York (Mr. Lyon) was there was different from the way in which it is exercised now. Those of us who have studied the way in which some of the Home Office decisions were made know that. I suggest that that is not good enough. I am sure that my hon. Friend the Member for York agrees that it should not depend on the luck—from the point of view of the individual applying for naturalization—of 852 which Minister is sitting in the Home Office. There should be a more objective basis for the grant of naturalisation than exists at present.
In Committee the Minister described the way in which the system worked—at least, he half described it. He said, for example, that sometimes people could work off a refusal and apply again in a number of years. In letters to constituents the Secretary of State has suggested that a two-year period should elapse before a person re-applies. That goes a little way towards meeting our argument. If a person can work off his bad character or improve his language in two years, he will have a reason to try to improve.
In Committee the Minister said that people often had a shrewd idea of why they had been refused. I dispute that. The two-year period hinted at by the Home Office is some comfort, because it is better than a total refusal. However, the person will not know whether he should improve his language, his driving or his bank balance. The Minister has half conceded.
The Minister sounded rather unhappy in Committee. He appeared to be defending a bad case, unless the case hangs almost entirely on the question of security. It has been suggested that the Secretary of State cannot give reasons for refusing in cases of bad character or language because that would reveal the handful of cases involving security. The Government's case rests almost entirely upon that. The case is thin. The Government have many opportunities to sift out security risks. I do not deny that such people exist, but they can be sifted out when they seek entry, or after entry if they are revealed to be security risks. They can be sifted out when they apply for naturalisation. It is not beyond the ability of the Home Office to delay applications in such circumstances. If a person is a security risk, he will know the reason for the refusal without the Home Office stating it. The Government are making much of a thin case. I hope that they will think again and accept the new clause.
§ Mr. Michael Shersby (Uxbridge)
When we discussed this matter at length in Committee, we were told that the main reason for the Secretary of State's discretion was to deal with security cases and fraud, and when it is thought that applicants should defer applications for a year or two.
My right hon. Friend must make his case strongly if we are to maintain the Secretary of State's discretion. It has been put to me that the issue is fundamental to the control of the operation of any discretionary power, since otherwise persons exercising such power can define the limits of that power. That is important for people who are affected by the exercise of the Secretary of State's power.
I hope that the Secretary of State will be able to give the House more information about the security aspects which he has to consider and about the issues surrounding fraud and undesirable characters which must also be taken into account.
The question whether there should be a right of appeal, such as that referred to in the new clause, needs to be considered in the context of whether its introduction would increase the confidence of the ethnic minority community, or whether it would undermine the security of the State or the ability of the Home Secretary to refuse a certificate of naturalisation to a person who may be an undesirable character because he or she may have been involved in some fraudulent business activity, or something of that nature.
853 One important point that arose in Committee, with which every hon. Member is familiar, is whether the procedure is adequate whereby an individual Member of Parliament acts as a channel of appeal to the Home Secretary. Some argue that it is not. My experience shows that Home Secretaries, both of my party and of the Labour Party, have the utmost consideration, take the greatest possible care in reaching their decisions and, generally speaking, inform me as the Member of Parliament concerned about the generality of the reasons for a refusal.
I have always taken the view that my ability to represent the interests of a constituent gives the constituent the benefit of personal attention, of speed and also of my being able to raise the case not only with the Home Secretary but in debate in the House and, if necessary, to spotlight a certain case nationally in front of the press or television. All those factors are valuable.
The view is held, and I must take account of it, that, although that channel may be valuable and although the ethnic minority community may accept that Members of Parliament act properly and take the greatest possible care to pursue their interests, some formalised procedure is necessary if justice is to be seen to be done. I suppose that that is the crux of the argument on an important matter.
Hon. Members on both sides have said that such a procedure is fundamental to good, harmonious race relations, a matter in which I am greatly interested. When my right hon. Friend the Home Secretary replies, I hope that he will clearly set out his position on the matter and say whether he believes that it is necessary to retain the existing system whereby the discretion of the Home Secretary is absolute, not subject to any inquiry and not subject to the giving of any reasons, or whether he believes that, because of the expressions of concern from both sides of the House, he should consider the matter again before the Bill becomes law.
Those are my feelings about the matter. It is a serious and important issue which should receive the closest possible attention from Parliament, not only this evening but during the remainder of the Bill's passage through Parliament before it receives its Royal Assent. I look forward to hearing what my right hon. Friend has to say.
§ 9 pm
§ Mr. Cryer
I wish to emphasise that it is about time we changed to some degree the character of our Government. We thrust on to Secretaries of State far too much work. We make them legally responsible for dozens of tasks by primary and subordinate legislation. For example, the Home Secretary issues warrants for telephone tapping and gives these his personal careful scrutiny. He issues several warrants a week. He is now to examine—presumably he does so already—applications for naturalisation. He has to give these applications his careful, detailed scrutiny and examination.
We must recognise that in the present state of our nation the great burden of this work is carried out by the Civil Service. I have no doubt that many civil servants try to undertake the work with the utmost integrity and with the greatest efficiency. However, they are in a position to mount initiatives in taking decisions because Ministers are overloaded with work and because they have a great many statutory functions to undertake. At the end of the day only civil servants can sift through the many papers and give 854 their approval or rejection. In those circumstances decisions can be made that are hurried and that may be faulty. In the present circumstances, and by virtue of the legislation that is proposed, they will be secret decisions, without reasons given. They are therefore not accountable decisions.
I have no doubt that the Home Secretary will say that he is accountable to the House and to Parliament. That is so much empty verbiage, in the context that we cannot possibly know what is going on and the reasons that lead him to make a decision. Unless we know those reasons we cannot possibly make him accountable to the House. It seems entirely reasonable that we should have some form of appeal that will bring to light the reasons that the Home Secretary is applying and will provide the right for a further scrutiny of his decision.
I am not addressing these remarks to the present Home Secretary alone. There are other areas of Government where, because the inner Government and the massive Civil Service are used to doing things in the current way, it is convenient, in legislation, to embrace the Secretary of State and to obtain his decision. We should turn aside from the existing system to some degree, open out the decision making and provide a check not only here, where it is difficult to take up individual cases, but through the proposals that are set out in the new clause.
Some Conservative Members have remarked on the fact that there are some who have been critical of judges. That does not mean that we cannot accept that there are judges who are able, and are men of integrity, who will use their best abilities. We recognise that as a general body the judiciary aims to apply the standard of justice that we would want to see applied to naturalisation cases as well as to other cases of a civil or criminal nature.
§ Mr. Shersby
I am sure that the hon. Gentleman will agree that hon. Members on both sides of the House take the opportunity to raise matters that concern individual constituents in, for example, Adjournment debates. Such debates are valued by us all and by our constituents. They are a means of opening up individual cases and the Minister concerned has to reply in the House. One has to balance that against the flexibility of the system in which the Secretary of State has discretion, which is often exercised in favour of the applicant rather than against him.
§ Mr. Cryer
There is a certain parallel with exclusion orders under the Prevention of Terrorism (Temporary Provisions) Act 1976. Although one can raise individual cases in the House, as I and many other hon. Members have done, at the end of the day the Home Secretary does not have to advance reasons for the making of an exclusion order. He does not have to account for his actions. He merely says "The information that I have received justifies my decision". It is very much the same with applications for naturalisation. In my view the argument about security and prevention of terrorism cannot be attached to applications for naturalisation, and I would argue that orders under the prevention of terrorism legislation are not necessary.
However, in this case, as in others, we must ensure that justice is seen to be done. It is not a slur on the Home Secretary's position to suggest that there should be some sort of appeal. It will give him that greater zeal in scrutiny in the midst of the enormous number of tasks that he must 855 perforce undertake. I should have thought that the new clause would add to the openness, quality and calibre of Government and that that was something that both sides of the House would welcome.
§ The Secretary of State for the Home Department (Mr. William Whitelaw)
I recognise that this is an important debate. I also recognise that ultimately it affects me personally as the Home Secretary of the day. That is why I have been particularly anxious not only to reply, but—I hope that the House will at least give me credit for one thing—to hear every speech that has been made this afternoon. I regard that as my duty and I have carried out that duty. I do not complain that it has been a long debate. That is proper and right.
I say at once to the hon. Member for Keighley (Mr. Cryer) that I do not rest my case on any argument that any Home Secretary should resent his decisions being examined in the House or elsewhere. The hon. Gentleman is right. The range of responsibilities inevitably means that the Home Secretary takes decisions under great pressures. Therefore, of course the Home Secretary welcomes that.
I shall now turn to this particular case. I accept at once what the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) has said, that it has divided the House and that it is of great importance. I shall rest my case on the basis that I do not believe that a right of appeal, as proposed in the new clause, is compatible with the general principles underlying naturalisation as it has always existed in our law. That is the purport of my case. I am extremely sensitive to the arguments that it is important that the system devised should be fair and should be felt to be fair.
I say "naturalisation" because the case is different with the provisions in our legislation which provide for registration as an entitlement—the decisions taken by the Secretary of State on such applications are not discretionary. If satisfied that the entitlement exists, the Secretary of State must grant the application. Since such decisions made by the Secretary of State are not discretionary, they are not covered by section 26 of the British Nationality Act, which would otherwise operate to preclude judicial review. This means that it would be possible—and it does occasionally happen—for an application to be made to the courts of judicial review of a decision to refuse a claimed entitlement to registration. The Bill would not change that situation. That is why I believe that in our arguments we should be concentrating our minds on naturalisation.
My hon. Friend the Member for Wycombe (Mr. Whitney) was right in what he said about naturalisation. The hon. Member for Battersea, South (Mr. Dubs) was unfair in the way in which he put a political side to the argument.
Naturalisation has always, in this as in many other countries, been within the gift of the State. It used to be a matter within the grant of the Sovereign. Later, powers to naturalise were exercised by Parliament. But it has long ceased to be practicable for naturalisation to be granted, except in very rare cases, by Act of Parliament. That is why discretion whether or not to grant naturalisation has been vested by Parliament in the Home Secretary since 1844.
I agree with the right hon. Member for Down, South (Mr. Powell) that, in the nature of things, no one has a right to another country's citizenship. Therefore, many of 856 the arguments today about human rights and civil liberties miss the point. Naturalisation cannot be a right. Parliament can, of course, legislate to accord people entitlements if certain criteria are met, but in such instances Parliament is taking a conscious decision to limit the overall discretion that would otherwise reside in the Government of the day.
§ Mr. Alexander W. Lyon
If it is impossible for citizenship to be given as a right, how can it be possible to acquire citizenship by registration as a right? The number of registrations is greater than the number of naturalisations.
§ Mr. Whitelaw
I thought that I had made the case that registration is an entitilement and naturalisation is not. If I have misunderstood the hon. Gentleman, I am prepared to consider what he says, but I believe that I made the point clear.
The existence, therefore, of entitlement to registration in our nationality law does not affect my main contention, which is that people who are not our citizens can have no right to our citizenship. They will not, therefore, be able to acquire it except on the terms that Parliament lays down. As the hon. Member for Leicester, South (Mr. Marshall) fairly said, there is the problem of how to fit the new clause in with the criteria set down by Parliament.
Before we can sensibly consider appeal rights, we must ask ourselves what terms Parliament should lay down for the acquisition of our citizenship by naturalisation. The Standing Committee considered that matter. The right hon. Member for Sparkbrook made some amusing comments on the criteria laid down and set forth by the Minister of State. However, I must come back to the point that it would be extremely difficult to decide what justiciable criteria should be laid down. It would cause great trouble in any possible appeal procedure. The Standing Committee decided at the end of the day that the decision whether the application should be granted should remain—this is our debate today—even when those criteria were met with the Secretary of State.
The real problem is that it is simply not practicable to reconcile rights of appeal with the exercise of an absolute discretion. Some hon. Members have sought to have the best of both worlds, but I do not believe that it is possible. Whenever the appellate authority, whatever it be, takes a different view from the Secretary of State, the Secretary of State's discretion in future is automatically fettered not only for that case but for any others like it that exhibit similar features. That would become inevitable. I tell hon. Members who would argue otherwise that, in truth, that argument is frequently put to me in many cases in which judicial decisions have been made.
If we moved towards an appeal system, we should lose control of who should be allowed to obtain our citizenship. In certain circumstances—that is to say, where they could show that their cases were similar to cases that had succeeded on appeal—citizens of other countries would, in effect, be able to claim our citizenship as of right, as my hon. Friend the Member for Canterbury (Mr. Crouch) said.
The Green Paper published by the Labour Government made the same point. It basically said that a right of appeal could not be reconciled with a discretionary naturalisation system based on subjective tests of good character. I should like to quote from paragraph 60, which reads:it is questionable whether it would be apt to have an appeals system if good character, assessed in each case by analysing all 857 the facts involved, were to remain the criterion for citizenship. The diversity encountered in application is very wide. The judgments which have to be made in this area are essentially subjective, and matters of this kind are not easily justiciable…Under the present system the standards applied in the generality of cases can be, and are, modified, and exceptions made to them, where this seems justified.I think that that Green Paper made two significant comments, and it lies at the heart of what I now wish to say about the relationship in this matter of the Secretary of State and the House.
§ Mr. Whitelaw
I am sorry, but there are other debates to follow, so I must resist the temptation to give way. It has been a long debate and hon. Members have had the chance to make their points.
Much has been said about the way in which we operate in the House and the control exercised on the Secretary of State which, after a long period in the House, I find surprising. I shall come to that in a moment.
The Government believe that it is wrong to imagine that it would be possible to devise a system of objective tests which covered all possible eventualities. I do not believe that it would be possible. Of course, it has not so far been tried.
The other point to note is that the present system. is flexible. Where Home Secretaries consider it justified, changes can be made to the way in which particular types of case should be considered, and individual cases can be treated exceptionally where there are exceptional factors.
I was surprised to see the love for appeal tribunals that some hon. Members appear suddenly to have gained, because those same hon. Members frequently blame me unless I am prepared to exercise my discretion in cases which have already gone to appeal. I am greatly criticized if I do not do so. I could cite a number of cases—I can see some of the hon. Members involved in them—in which, if I had not had that discretion and the cases had been decided purely upon appeal, people who are in this country today would not have been here under the immigration rules. I am therefore interested to note that the House seems to have a new-found interest in appeal bodies that I had not witnessed up to now.
I shall come to reasons later, as these are important matters and I have an important point to make. I must also say that I find it surprising to hear that hon. Members do not press the Secretary of State or the Minister of State or do not take up their constituents' cases with me. The number of cases taken up with me—and, inevitably, the much larger number taken up with the Minister of State—is considerable in relation to this subject. There are far more, I freely admit, on the subject of the application of immigration controls, but a large number of cases are put forward on this subject.
If anyone imagines that it is always easy to give answers and to duck Adjournment debates, I must say that that is not my experience. When I receive letters from hon. Members and when cases are brought to me, I take a great deal of trouble.
I must say in passing to the hon. and learned Member for Bradford, West (Mr. Lyons) that my attitude to the cases put forward by hon. Members is not formed on the 858 basis of whether I have acquired a liking for the hon. Member concerned. He seemed to suggest that some hon. Members did not take up constituents' cases unless they liked them. I found that a surprising admission, but that is what he said. I believe that it is important to take up every case on its merits and I must claim that that is certainly what I seek to do. I must say to my hon. Friend the Member for Uxbridge (Mr. Shersby) how important I believe it is that the right exists for Members of Parliament to take up individual cases and to expect them to be treated exceptionally.
The great case that I would argue is that the flexibility of the present system would be destroyed by an appeals system and I believe that that would make it very much more difficult than at present.
I should not like to examine the case for an appeal system in practical terms and also some of the practical difficulties of setting one up. Once again, the Green Paper published by the Labour Government, in paragraph 59, said:Admittedly, a decision to refuse citizenship usually has little immediate impact on the everyday life of the applicant; it does not affect his ability to stay in this country, and he is free, for instance, to own property. But refusal might prevent someone from entering a post, such as those in the Civil Service, which is restricted to those holding certain nationalities. A right of appeal would offer some help in such a case.The occupations concerned are normally open to Commonwealth citizens and, under our present law, to the citizens of the Republic of Ireland. Therefore, the potential hardship is confined to foreign nationals.
§ Mr. Whitelaw
As the hon. Gentleman wishes to dispute something that I am stating as a fact, I shall give way to him.
§ Mr. Mikardo
I am disputing the right hon. Gentleman's point, because I have personal experience of it. It is not only the chap himself who can be put at a disadvantage, but also his children. My father was refused naturalisation after living 30 blameless years in this country. Although I was born here, I was put at a disadvantage in several ways. For example, I was held to be ineligible for the Royal Navy.
§ Mr. Whitelaw
I was about to say that the range of occupations concerned is relatively narrow. With his usual considerable skill, the hon. Gentleman has caught me out. I was about to say that that range of occupations included the Armed Forces, the police and the Bank of England as well as that of master or owner of a British ship. I think that the hon. Gentleman will agree that a refusal of naturalisation has not caused difficulty in any but the most exceptional cases. I am surprised at the hon. Gentleman's case. If anyone intends to join one of the Services mentioned, and has been accepted subject to his acquiring our citizenship, we do our best to give consideration of his case priority so that we do not stand in his way, or in that of the Service concerned.
§ Mr. Mikardo
The right hon. Gentleman said that the limitations put on those refused naturalisation were small. Until I told him about it, he was not conscious of the fact 859 that some limitations are put on the children of those who are refused naturalisation, although they are themselves British.
§ Mr. Whitelaw
As the hon. Gentleman says so, I must believe him. However, I am surprised to hear it. It is difficult to see how that could be so in relation to occupations and particular categories of job.
§ Mr. Whitelaw
I note the hon. and learned Gentleman's remarks. When one examines the total refusals of naturalisation over the past 10 years one finds that they are not large in number, either absolutely or as a percentage of the total. The figures were given in Committee and were discussed again this afternoon. The number of refusals comes, on average, to just under 10 per cent. a year over the last five years. I should not have thought that those facts showed a practical need for a right of appeal.
In many of the cases refused, such a right would be wholly uncalled for. A person who was refused on the grounds that he had failed to meet statutory residence requirements—the commonest reason for refusal—should be able to bring himself within those requirements without exercising an expensive right of appeal. I understand some of the anxiety expressed, but I believe that the same goes for those who have an insufficient knowledge of the language. In many cases, those involved make themselves more proficient in the language and are later naturalised. Therefore, that is a fair point about appeal.
In the two examples that I have just mentioned—failure to meet the residence requirements and insufficient knowledge of English—we would usually give the reasons for our decisions, and should do so. I was surprised when the hon. Member for Barking (Miss Richardson) said that the Home Office never gave the reasons. That is inaccurate. I hope she will realise that I know because I have on occasion given some of the reasons myself. It is right that in those circumstances reasons should be given, and I take the point made by my hon. Friend the Member for Uxbridge and in another context by the hon. Member for York (Mr. Lyon).
There is a difficulty—I come back to what was said by the right hon. Member for Sparkbrook—in informing an applicant that he is a security risk. I believe that there would be substantial difficulties arising from the right hon. Gentleman's idea of a warrant to an appeal tribunal, for the question whether a Home Secretary was justified in giving that warrant could then be argued at considerable length. It would become very difficult for the Home Secretary in many cases to do more than get back into the original position. He would have to say that he could not give reasons, other than security, for the warrant that he had granted. There is a problem here and I find it difficult to see how it would be possible to give reasons in the 860 security cases. I admit that there are not a great many of them and I would not wish to make too much of the security point, but it is clearly there.
With regard to good character, references are asked for, and the main method of proceeding is to follow up the references, such as those which hon. Members will from time to time have given in the cases of their own constituents. We should give reasons whenever we possibly can, and I take the point made by the House in this respect. It is most important. I doubt whether there are many cases in which the applicant is in much doubt as to the reason for refusal in his case.
Against this background, the House should look very seriously at whether the extra costs of an appeal system would be justified. I would not rest my whole case on that aspect, but one has to look at that as well. I think that the right hon. Gentleman will admit that new clause 4 is probably the most expensive of the available options. However, I do not wish to make too much of that, because I am against an appeals system on principle in regard to naturalisation.
The right hon. and learned Member for Warley, West (Mr. Archer) made an important speech. He said that the idea of an appeal tribunal would be welcomed by everyone, including the judiciary. I have grave doubts whether that would be the case, because it would place a heavy load on an already overburdened judiciary; no one could deny that. In reading the references to judges in the High Court, the Court of Appeal and Court of Session, he will surely agree that the degree of judicial eminence that is sought for the system would be excessive for its purpose. I do not believe that it would be sound. I do not believe that a right of appeal in this regard would work, for the reasons that I have given to the House.
At the same time, I hope that I have also made it clear to the House that I believe that it is important that reasons should be given whenever possible, and that the administration of the discretion, supervised by this House, should be seen to be fair. It is my job, if I believe that it is the best way in which to proceed in regard to naturalisation, to make sure that it is seen to be fair.
I do not believe that a formal right of appeal would be appropriate, because of the nature of the decision that would be challenged. That decision is of such a kind that only Parliament should be in a position to question the Home Secretary's use of his discretion. To say that one is answerable to Parliament is not an empty phrase. I should be surprised if many of the right hon. and hon. Gentlemen who press me on different occasions would claim that it was so. I am answerable to Parliament when there is maladministration. That takes up the point in regard to the argument about civil servants that we have heard. today. Parliament has its Commissioner for Administration, the Ombudsman, to investigate cases which are referred to him.
The system in regard to naturalisation is the only workable one. It is right and sensible. I recognise that it is my responsibility to make sure that it works fairly. That I undertake to the House I shall do. On that basis I ask the House to reject the new clause.
§ Question put, That the clause be read a Second time.
§ The House divided: Ayes 229, Noes 290.864
|Division No. 195]||[9.30 pm|
|Abse, Leo||Foster, Derek|
|Adams, Allen||Foulkes, George|
|Allaun, Frank||Fraser, J. (Lamb'th, N'w'd)|
|Anderson, Donald||Freeson, Rt Hon Reginald|
|Archer, Rt Hon Peter||Freud, Clement|
|Ashley, Rt Hon Jack||Garrett, John (Norwich S)|
|Ashton, Joe||George, Bruce|
|Bagier, Gordon A.T.||Gilbert, Rt Hon Dr John|
|Barnett, Guy (Greenwich)||Ginsburg, David|
|Barnett, Rt Hon Joel (H'wd)||Gourlay, Harry|
|Beith, A. J.||Graham, Ted|
|Benn, Rt Hon A. Wedgwood||Grant, George (Morpeth)|
|Bennett, Andrew (St'kp't N)||Grant, John (Islington C)|
|Bidwell, Sydney||Grimond, Rt Hon J.|
|Booth, Rt Hon Albert||Hamilton, W. W. (C'tral Fife)|
|Bottomley, Rt Hon A. (M'b'ro)||Harrison, Rt Hon Walter|
|Bradley, Tom||Hart, Rt Hon Dame Judith|
|Bray, Dr Jeremy||Hattersley, Rt Hon Roy|
|Brocklebank-Fowler, C.||Haynes, Frank|
|Brown, Hugh D. (Provan)||Heffer, Eric S.|
|Brown, R. C. (N'castle W)||Hogg, N. (E Dunb't'nshire)|
|Brown, Ron (E'burgh, Leith)||Holland, S. (L'b'th, Vauxh'll)|
|Buchan, Norman||Home Robertson, John|
|Callaghan, Rt Hon J.||Hooley, Frank|
|Callaghan, Jim (Midd't'n & P)||Horam, John|
|Campbell, Ian||Howell, Rt Hon D.|
|Campbell-Savours, Dale||Howells, Geraint|
|Canavan, Dennis||Huckfield, Les|
|Cant, R. B.||Hudson Davies, Gwilym E.|
|Carmichael, Neil||Hughes, Mark (Durham)|
|Carter-Jones, Lewis||Hughes, Robert (Aberdeen N)|
|Cartwright, John||Hughes, Roy (Newport)|
|Cocks, Rt Hon M. (B'stol S)||Janner, Hon Greville|
|Conlan, Bernard||Jay, Rt Hon Douglas|
|Cook, Robin F.||Johnson, James (Hull West)|
|Cowans, Harry||Johnson, Walter (Derby S)|
|Craigen, J. M.||Johnston, Russell (Inverness)|
|Crawshaw, Richard||Jones, Barry (East Flint)|
|Crowther, J. S.||Jones, Dan (Burnley)|
|Cryer, Bob||Kaufman, Rt Hon Gerald|
|Cunliffe, Lawrence||Kerr, Russell|
|Cunningham, G. (Islington S)||Kilroy-Silk, Robert|
|Cunningham, Dr J. (W'h'n)||Lambie, David|
|Dalyell, Tam||Leadbitter, Ted|
|Davies, Rt Hon Denzil (L'lli)||Lestor, Miss Joan|
|Davies, Ifor (Gower)||Lewis, Arthur (N'ham NW)|
|Davis, Clinton (Hackney C)||Lewis, Ron (Carlisle)|
|Davis, T. (B'ham, Stechf'd)||Litherland, Robert|
|Deakins, Eric||Lofthouse, Geoffrey|
|Dempsey, James||Lyon, Alexander (York)|
|Dewar, Donald||Lyons, Edward (Bradf'd W)|
|Dixon, Donald||Mabon, Rt Hon Dr J. Dickson|
|Dobson, Frank||McCartney, Hugh|
|Dormand, Jack||McDonald, Dr Oonagh|
|Douglas, Dick||McKay, Allen(Penistone)|
|Douglas-Mann, Bruce||McKelvey, William|
|Dubs, Alfred||MacKenzie, Rt Hon Gregor|
|Duffy, A. E. P.||McNally, Thomas|
|Dunn, James A.||McNamara, Kevin|
|Dunnett, Jack||McTaggart, Robert|
|Dunwoody, Hon Mrs G.||Magee, Bryan|
|Eadie, Alex||Marks, Kenneth|
|Eastham, Ken||Marshall, D (G'gow S'ton)|
|Ellis, R. (NE D'bysh're)||Marshall, Dr Edmund (Goole)|
|English, Michael||Marshall, Jim (Leicester S)|
|Ennals, Rt Hon David||Martin, M (G'gow S'burn)|
|Evans, Ioan (Aberdare)||Maxton, John|
|Evans, John (Newton)||Maynard, Miss Joan|
|Ewing, Harry||Meacher, Michael|
|Faulds, Andrew||Mellish, Rt Hon Robert|
|Field, Frank||Mikardo, Ian|
|Fitt, Gerard||Millan, Rt Hon Bruce|
|Flannery, Martin||Mitchell, Austin (Grimsby)|
|Fletcher, Ted (Darlington)||Mitchell, R. C. (Soton Itchen)|
|Foot, Rt Hon Michael||Morris, Rt Hon A. (W'shawe)|
|Ford, Ben||Morris, Rt Hon C. (O'shaw)|
|Forrester, John||Morris, Rt Hon J. (Aberavon)|
|Morton, George||Stallard, A. W.|
|Moyle, Rt Hon Roland||Stewart, Rt Hon D. (W Isles)|
|Oakes, Rt Hon Gordon||Stoddart, David|
|O'Halloran, Michael||Straw, Jack|
|O'Neill, Martin||Summerskill, Hon Dr Shirley|
|Orme, Rt Hon Stanley||Taylor, Mrs Ann (Bolton W)|
|Palmer, Arthur||Thomas, Dafydd (Merioneth)|
|Parker, John||Thomas, Jeffrey (Abertillery)|
|Parry, Robert||Thomas, Mike (Newcastle E)|
|Penhaligon, David||Thomas, Dr H. (Carmarthen)|
|Powell, Raymond (Ogmore)||Tilley, John|
|Prescott, John||Tinn, James|
|Race, Reg||Torney, Tom|
|Radice, Giles||Varley, Rt Hon Eric G.|
|Rees, Rt Hon M (Leeds S)||Wainwright, E. (Dearne V)|
|Richardson, Jo||Wainwright. R. (Colne V)|
|Roberts, Albert (Normanton)||Walker, Rt Hon H. (D'caster)|
|Roberts, Allan (Bootle)||Watkins, David|
|Roberts, Ernest (Hackney N)||Weetch, Ken|
|Roberts, Gwilym (Cannock)||Wellbeloved, James|
|Robinson, G. (Coventry NW)||Welsh, Michael|
|Rooker, J. W.||White, Frank R.|
|Roper, John||White, J. (G'gow Pollok)|
|Ross, Ernest (Dundee West)||Whitlock, William|
|Ross, Stephen (Isle of Wight)||Wigley, Dafydd|
|Rowlands, Ted||Willey, Rt Hon Frederick|
|Ryman, John||Williams, Rt Hon A. (S'sea W)|
|Sandelson, Neville||Wilson, Gordon (Dundee E)|
|Sever, John||Wilson, Rt Hon Sir H. (H'ton)|
|Sheerman, Barry||Wilson, William (C'try SE)|
|Sheldon, Rt Hon R.||Winnick, David|
|Short, Mrs Renée||Woodall, Alec|
|Silkin, Rt Hon S. C. (Dulwich)||Woolmer, Kenneth|
|Skeet, T. H. H.||Wright, Sheila|
|Skinner, Dennis||Young, David (Bolton E)|
|Smith, Cyril (Rochdale)|
|Smith, Rt Hon J. (N Lanark)||Tellers for the Ayes:|
|Soley, Clive||Mr. James Hamilton and|
|Spearing, Nigel||Mr. Joseph Dean.|
|Adley, Robert||Butler, Hon Adam|
|Aitken, Jonathan||Cadbury, Jocelyn|
|Alexander, Richard||Carlisle, John (Luton West)|
|Amery, Rt Hon Julian||Carlisle, Kenneth (Lincoln)|
|Ancram, Michael||Carlisle, Rt Hon M. (R'c'n)|
|Arnold, Tom||Chalker, Mrs. Lynda|
|Atkins, Robert (Preston N)||Channon, Rt. Hon. Paul|
|Baker, Kenneth (St.M'bone)||Chapman, Sydney|
|Baker, Nicholas (N Dorset)||Churchill, W. S.|
|Banks, Robert||Clark, Hon A. (Plym'th, S'n)|
|Beaumont-Dark, Anthony||Clark, Sir W. (Croydon S)|
|Bendall, Vivian||Clegg, Sir Walter|
|Benyon, W. (Buckingham)||Cockeram, Eric|
|Best, Keith||Colvin, Michael|
|Bevan, David Gilroy||Cope, John|
|Biffen, Rt Hon John||Corrie, John|
|Biggs-Davison, John||Costain, Sir Albert|
|Blackburn, John||Cranborne, Viscount|
|Blaker, Peter||Critchley, Julian|
|Body, Richard||Crouch, David|
|Bonsor, Sir Nicholas||Dickens, Geoffrey|
|Boscawen, Hon Robert||Dorrell, Stephen|
|Bottomley, Peter (W'wich W)||Douglas-Hamilton, Lord J.|
|Boyson, Dr Rhodes||Dover, Denshore|
|Braine, Sir Bernard||Dunlop, John|
|Bright, Graham||Dunn, Robert (Dartford)|
|Brittan, Leon||Durant, Tony|
|Brooke, Hon Peter||Dykes, Hugh|
|Brotherton, Michael||Edwards, Rt Hon N. (P'broke)|
|Brown, Michael (Brigg & Sc'n)||Eggar, Tim|
|Browne, John (Winchester)||Elliott, Sir William|
|Bruce-Gardyne, John||Fairbairn, Nicholas|
|Bryan, Sir Paul||Fairgrieve, Russell|
|Buck, Antony||Faith, Mrs Sheila|
|Budgen, Nick||Farr, John|
|Bulmer, Esmond||Fell, Anthony|
|Burden, Sir Frederick||Fenner, Mrs Peggy|
|Butcher, John||Finsberg, Geoffrey|
|Fisher, Sir Nigel||Marland, Paul|
|Fletcner, A. (Ed'nb'gh N)||Marlow, Tony|
|Fletcher-Cooke, Sir Charles||Marshall, Michael (Arundel)|
|Forman, Nigel||Marten, Neil (Banbury)|
|Fowler, Rt Hon Norman||Mates, Michael|
|Fox, Marcus||Mather, Carol|
|Fraser, Rt Hon Sir Hugh||Maude, Rt Hon Sir Angus|
|Fraser, Peter (South Angus)||Mawby, Ray|
|Fry, Peter||Mawhinney, Dr Brian|
|Gardner, Edward (S Fylde)||Maxwell-Hyslop, Robin|
|Garel-Jones, Tristan||Mayhew, Patrick|
|Gilmour, Rt Hon Sir Ian||Mellor, David|
|Glyn, Dr Alan||Meyer, Sir Anthony|
|Goodhart, Philip||Miller, Hal (B'grove)|
|Goodhew, Victor||Mills, Iain (Meriden)|
|Goodlad, Alastair||Miscampbell, Norman|
|Gorst, John||Moate, Roger|
|Gow, Ian||Molyneaux, James|
|Gower, Sir Raymond||Monro, Hector|
|Gray, Hamish||Montgomery, Fergus|
|Griffiths, Peter Portsm'th N)||Moore, John|
|Grist, Ian||Morgan, Geraint|
|Grylls, Michael||Morris, M. (N'hampton S)|
|Gummer, John Selwyn||Morrison, Hon C. (Devizes)|
|Hamilton, Hon A.||Morrison, Hon P. (Chester)|
|Hamilton, Michael (Salisbury)||Mudd, David|
|Hampson, Dr Keith||Murphy, Christopher|
|Hannam, John||Myles, David|
|Haselhurst, Alan||Neale, Gerrard|
|Hastings, Stephen||Needham, Richard|
|Havers, Rt Hon Sir Michael||Nelson, Anthony|
|Hawkins, Paul||Neubert, Michael|
|Hawksley, Warren||Newton, Tony|
|Hayhoe, Barney||Onslow, Cranley|
|Heddle, John||Oppenheim, Rt Hon Mrs S.|
|Henderson, Barry||Page, John (Harrow, West)|
|Heseltine, Rt Hon Michael||Page, Rt Hon Sir G. (Crosby)|
|Hicks, Robert||Page, Richard (SW Herts)|
|Hill, James||Parkinson, Cecil|
|Hogg, Hon Douglas (Gr'th'm)||Parris, Matthew|
|Holland, Philip (Carlton)||Patten, Christopher (Bath)|
|Hooson, Tom||Patten, John (Oxford)|
|Hordern, Peter||Pattie, Geoffrey|
|Howe, Rt Hon Sir Geoffrey||Pawsey, James|
|Howell, Rt Hon D. (G'ldf'd)||Percival, Sir Ian|
|Hunt, David (Wirral)||Peyton, Rt Hon John|
|Irving, Charles (Cheltenham)||Pink, R. Bonner|
|Johnson Smith, Geoffrey||Pollock, Alexander|
|Jopling, Rt Hon Michael||Porter, Barry|
|Kaberry, Sir Donald||Powell, Rt Hon J.E. (S Down)|
|Kellett-Bowman, Mrs Elaine||Prentice, Rt Hon Reg|
|Kershaw, Anthony||Price, Sir David (Eastleigh)|
|Kimball, Marcus||Prior, Rt Hon James|
|King, Rt Hon Tom||Proctor, K. Harvey|
|Kitson, Sir Timothy||Pym, Rt Hon Francis|
|Knox, David||Raison, Timothy|
|Lamont, Norman||Rathbone, Tim|
|Lang, Ian||Rees, Peter (Dover and Deal)|
|Langford-Holt, Sir John||Rees-Davies, W. R.|
|Latham, Michael||Renton, Tim|
|Lawrence, Ivan||Rhodes James, Robert|
|Lawson, Rt Hon Nigel||Rhys Williams, Sir Brandon|
|Lee, John||Ridley, Hon Nicholas|
|Lennox-Boyd, Hon Mark||Ridsdale, Sir Julian|
|Lester, Jim (Beeston)||Rifkind, Malcolm|
|Lewis, Kenneth (Rutland)||Rippon, Rt Hon Geoffrey|
|Lloyd, Ian (Havant & W'loo)||Roberts, Wyn (Conway)|
|Lloyd, Peter (Fareham)||Ross, Wm. (Londonderry)|
|Loveridge, John||Rossi, Hugh|
|Luce, Richard||Rost, Peter|
|Lyell, Nicholas||Royle, Sir Anthony|
|McCrindle, Robert||Sainsbury, Hon Timothy|
|MacGregor, John||St. John-Stevas, Rt Hon N.|
|MacKay, John (Argyll)||Scott, Nicholas|
|Macmillan, Rt Hon M.||Shaw, Giles (Pudsey)|
|McNair-Wilson, M. (N'bury)||Shaw, Michael (Scarborough)|
|McNair-Wilson, P. (New F'st)||Shelton, William (Streatham)|
|McQuarrie, Albert||Shepherd, Colin (Hereford)|
|Madel, David||Shepherd, Richard|
|Major, John||Shersby, Michael|
|Silvester, Fred||van Straubenzee, W. R.|
|Sims, Roger||Vaughan, Dr Gerard|
|Speed, Keith||Viggers, Peter|
|Speller, Tony||Waddington, David|
|Spence, John||Wakeham, John|
|Spicer, Michael (S Worcs)||Waldegrave, Hon William|
|Sproat, Iain||Walker, B. (Perth)|
|Squire, Robin||Walker-Smith, Rt Hon Sir D.|
|Stainton, Keith||Wall, Patrick|
|Stanbrook, Ivor||Waller, Gary|
|Stanley, John||Walters, Dennis|
|Steen, Anthony||Ward, John|
|Stevens, Martin||Warren, Kenneth|
|Stewart, Ian (Hitchin)||Wells, John (Maidstone)|
|Stewart, A. (E Renfrewshire)||Wells, Bowen|
|Stokes, John||Wheeler, John|
|Stradling Thomas, J.||Whitelaw, Rt Hon William|
|Tapsell, Peter||Whitney, Raymond|
|Taylor, Robert (Croydon NW)||Wickenden, Keith|
|Taylor, Teddy (S'end E)||Wiggin, Jerry|
|Tebbit, Norman||Williams, D. (Montgomeiy)|
|Temple-Morris, Peter||Winterton, Nicholas|
|Thomas, Rt Hon Peter||Wolfson, Mark|
|Thompson, Donald||Young, Sir George(Acton)|
|Thorne, Neil (Ilford South)||Younger, Rt Hon George|
|Townend, John (Bridlington)||Tellers for the Noes:|
|Townsend, Cyril D, (B'heath)||Mr. Spencer Le Marchant|
|Trippier, David||and Mr. Anthony Berry.|
§ Question accordingly negatived.