HL Deb 26 January 1943 vol 125 cc715-43

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clause 1 agreed to.

Clause 2:

British nationality of persons born in foreign countries where His Majesty exercises jurisdiction.

2.—(1) Any person born, whether before or after the commencement of this Act, in a place where by treaty, capitulation, grant, usage, sufferance, or other lawful means, His Majesty was at the time of that person's birth exercising jurisdiction over British subjects, shall, if at the time of his birth his father was a British subject, be deemed to be and, in the case of a person born before the commencement of this Act, always to have been, a natural-born British subject.

LORD STRABOLGI moved, in subsection (1), after "capitulation," to insert "mandate." The noble Lord said: The Amendments which my noble friend Lord Wedgwood and myself have put down all hang together. There are two others on this clause—namely, after "means," to insert "Palestine," and after "British," where that word occurs for the second time, to insert "or Palestinian." They were really put down with the intention of drawing attention to the anomalous position of Palestinians who come here on their lawful occasions and are treated as aliens. They certainly have the responsibilities of British subjects, and are under British mandate. Since my noble friend and myself put down these Amendments, however, we have looked more closely into the matter. Our Amendments, as the noble and learned Lord Chancellor will see, affect only a very small number of children, and they also raise certain legalistic questions in connexion with mandates which are somewhat complicated. In Palestine, for example, there is not only the whole mandatory system to be considered but also the position of the Arabs, both Moslem and Christian, as well as that of the Jews. In those circumstances, we do not propose to press the Amendments. On the other hand, we should be very grateful if we could be given some assurance that the Government are looking into this question of the status of Palestinians who come here, and that they are regarding it with some sympathy. In case the noble and learned Lord Chancellor has any comment to make on the matter, I beg formally to move this Amendment.

Amendment moved— Page 2, line 2, after ("capitulation") insert ("mandate").—(Lord Strabolgi.)

THE LORD CHANCELLOR (VISCOUNT SIMON)

If I may say a word on that Amendment, it will enable me, as the noble Lord opposite suggests, to deal at the same time with the other two suggestions in this series of Amendments in respect of Clause 2. There are really, I think, two quite distinct points raised, both of them interesting and important. I believe that I can deal with them to the complete satisfaction of the noble Lord; at any rate I hope so. The noble Lord's first Amendment is that the words in Clause 2 of the Bill, Any person born, whether before or after the commencement of this Act, in a place where by treaty, capitulation, grant, usage, sufferance, or other lawful means, His Majesty was at the time of that person's birth exercising jurisdiction over British subjects, should be extended by inserting after "capitulation" the word "mandate," so that the passage would read: Any person born … in a place where by treaty, capitulation, mandate, grant, usage, sufferance, or other lawful means.… That is his first suggestion. I quite understand the reason which prompted the noble Lord to make that suggestion, but the answer is that a mandate, and particularly the mandate for Palestine, is already covered by the word "treaty," and these words "treaty, capitulation, grant, usage, sufferance, or other lawful means" are the standard words which are always used in respect of those places which are covered by the Foreign Jurisdiction Act, 1890. Consequently it is not necessary to insert the word "mandate," because mandate is only a special example of "treaty."

A much more important question is the second one raised by the noble Lord, to insert the words "or Palestinian" after "British" in line 5. If the Lord Chairman will allow me to do so, I might perhaps deal with that at the same time. There is there a real difficulty, and one which I am sure would not be got over by that Amendment. One of the actual terms under which this country holds the mandate for Palestine is that there shall be a separate Palestinian nationality. We are not entitled to say of people who are Palestinians that we will by Act of Parliament declare that they are British; there must be a separate Palestinian nationality, as separate as any other foreign nationality. It is very important not only that we should observe the provisions of the mandate, but that we should recognize that Palestine and Palestinians have a separate international existence and are not merely part of our own Empire.

It would be quite wrong, therefore, to insert the words "or Palestinian," and it would further have this very odd result, that if indeed you were to enact that the son born in Palestine of any Palestinian was a British subject, the son would be a British subject but the father would not be a British subject. The father would be Palestinian and the son British. Manifestly, the son of a Palestinian born in Palestine should have the same nationality as his father. That is a point of substance, and it is one which I am sure the noble Lord will regard as of importance, if I have explained it clearly, In brief, therefore, my answer as regards these Amendments is that I do not think the Committee should make them; as regards the first because it is quite unnecessary, and as regards the others because they would run entirely contrary to the words of the mandate, by which we are bound. I think that the noble Lord, Lord Strabolgi, in asking for more general observations, may perhaps be thinking of an Amendment Clause 4 which comes a little later, and with which I will deal when we come to Clause 4.

LORD STRABOLGI

On behalf of my noble friend and myself I should like to thank the noble and learned Lord Chancellor for that explanation. As I indicated, after full consideration we do not desire to press these Amendments, and I ask leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 agreed to.

Clause 4:

Special power to grant certificates of naturalization to French nationals serving in His Majesty's Forces.

4. If at any time during the present war period an application for a certificate of naturalization is made to the Secretary of State by any person appearing to him to be or to have been at any time during that period a French national, then if the Secretary of State is satisfied that the applicant—

  1. (a) is, or has at any time during that period been, a member of His Majesty's Forces; and
  2. (b) is a proper person to be naturalized as a British subject,
the Secretary of State may grant to the applicant a certificate of naturalization under Section two of the principal Act notwithstanding that the requirements of subsection (I) of that section are not complied with.

LORD ADDISON moved to leave out "appearing to him to be or to have been at any time during that period a French national." The noble Lord said: I move this Amendment in order to elicit a statement from the Lord Chancellor, because it seems reasonable that if a person applies to the Secretary of State and shows that he has at any time during the period of the war been a member of His Majesty's Forces, and that he is a proper person to be naturalized, he should be entitled to consideration.

Amendment moved— Page 2, line 23, leave out ("appearing to him to be or to have been at any time during that period a French national").—(Lord Addison.)

THE LORD CHANCELLOR

This is a matter which was brought to the attention of your Lordships' House on Second Reading, I think by Lord Wedgwood. No doubt the question raised is an important one. I must remind the House that the reason why Clause 4 is expressed as it is is that which I explained on Second Reading; it would not be here at all if it were not for that. It is that upon the collapse of France, and at a time when there was no French Government to which we could give any confidence, a certain number of French citizens came over here desiring to adhere to the cause of the Allies and, having no other place to go, they were prepared to fight, and did fight, and are now fighting, in the British Forces—all honour to them. The Prime Minister, I think with the general approval of Parliament and the country, made a public declaration that if, in those circumstances, when we had lost the support of France, there were individual Frenchmen who would come over here and would serve in the British Forces, the Government would propose to Parliament that they should have special facilities for acquiring British nationality, if they wished.

And, therefore, Clause 4 provides that If at any time during the present war period an application for a certificate of naturalization is made to the Secretary of State"— that is, the Home Secretary— by any person appearing to him to be or to have been at any time during that period a French national, then, if the Home Secretary is satisfied that he has been a member of the British Forces, and is a proper person to be naturalized, he may grant to the applicant a certificate of naturalization notwithstanding that the requirements of a particular subsection—that is to say, that the man should have been here for five years out of the last eight—are not satisfied. That, of course, was a specific pledge addressed to a particular class of case, and nobody will doubt that it is a pledge which has to be honoured, and this is the section which fulfils that pledge.

It is a very different matter indeed to transform that, which is the fulfilment of a pledge, into a general provision that any foreigner who has at any time—because he need not be doing it now—served in the British Army or in the Pioneer Corps, should have this special facility for applying to become a British subject. The Home Office inform me that they would in fact find it quite impossible to make the necessary inquiries, and of course we none of us desire to acid foreigners to our own nation unless the proper inquiries are made. I know very well, from rather a long experience of the Home Office, that in peace-time these inquiries are very careful and thorough. There are quite a large number of people who are at the present time in the Pioneer Corps more especially—which is part of the Forces—who have been accepted when they came over here and been placed in the Pioneer Corps on the terms and stipulation that they will not on that account claim to become British subjects, but on the contrary, recognize that their right to remain here is temporary. This, therefore, would be a very serious thing. There will be some individuals perhaps who, before the war is over, may satisfy this condition about five years, because they may have been here a year or two before the war broke out, or peradventure the war will continue long enough; but I do not believe that there is any practical advantage in the extension. So long as the man is in the British Army he has got every protection which the British Army can give. On the other hand, I have to tell the Committee that the Government are not able to make this extension, which no doubt makes a certain appeal, but which ought not to be made, because our rules about naturalization are perfectly well-established, and they are not unduly severe. Those are the reasons why, after discussing the matter carefully with the Home Office—and, I can assure the noble Lord, with every desire to be sympathetic—I am bound to say that the Amendment cannot be accepted.

LORD ADDISON

I confess I am not very satisfied with the noble and learned Viscount's explanation. Nobody will, I am sure, wish to prevent full effect being given to the pledge of the Prime Minister, but it would be equally well given effect to whether these words were in or not. I cannot see that the noble and learned Viscount has advanced any reason why, for instance, a Czech or a Pole, serving, say, in the Air Force—and many of them have performed heroic service—if he so wishes, and also if he satisfies the Home Secretary that he is a proper person to be naturalized, should not enjoy the advantage of this provision. I cannot see what distinction there is, or could possibly be, between a man of another nationality and one who happens to be of French nationality.

THE LORD CHANCELLOR

I am not for a moment disputing the gallantry of those others, but they have their Governments here; the Frenchman has not.

LORD ADDISON

I am well aware of that, and the mere fact that there is no French Government here is a material point. But I do not know that it affects the rightness or wrongness of granting British nationality to a man of another nation fighting in our Forces who is a fit and proper person to be naturalized. The only contention I advance is that oppor- tunity should be made open, if it is to be made open at all, to all those who fight on our sick if they are fit and proper persons to be so treated. I do not wish to press the matter any further, but I do not think the noble and learned Viscount has given us a valid distinction between the two classes of person.

LORD STRABOLGI

This does raise a very large question indeed. Any noble Lord who should happen to have come in a little late and heard the Lord Chancellor's very adroit explanation, without loosing at the Bill, would have supposed that we were asking that anyone who happened to be a person of another nation in one or other of the Forces should ipso facto have the right to naturalization; whereas the right to naturalization is fully safeguarded by paragraph (b). Not only must the applicant have been a member of His Majesty's Forces, but he must be a proper person to be naturalized as a British subject. That was not mentioned by the Lord Chancellor.

THE LORD CHANCELLOR

I think I read the section.

LORD STRABOLGI

I did not remark it. The emphasis was on the fact that a man may just have served in the Pioneer Corps. A good many of the men serving in the Pioneer Corps are only too anxious to get into combatant units. You are to-day not only employing first-rate trained fighting soldiers in the Pioneer Corps, but you are also employing scientists, university graduates and all kinds of people. But let that pass. The members of the Pioneer Corps, some of them Stateless persons of German birth, fought with the greatest gallantry at Dunkirk. They were armed, and they fought with distinction there. I do not think the Lord Chancellor meant any reflection on the great work that the Pioneer Corps is doing, but I did think he dealt a little lightly with the matter. May I remind your Lordships of the situation in the last war? Then it was far easier for a man who had borne arms in our service to become naturalized. We have tightened up the regulations immensely. We were far more liberal and wiser in this respect in the last war. Then, unless there was something against a man, almost automatically he received British naturalization if he had served in the British Army. I think I am right in saying that.

That is all we are asking for here, provided always the man is otherwise suitable. The Lord Chancellor said: "Oh, but those gallant Poles and Czechs referred to by Lord Addison have their own Governments here to look after them". There is another large class—the Stateless persons, Austrians, for instance, who have been in the war from the beginning. They have no Government here. They are people to whom, in many cases, we should be glad to grant British citizenship. They are men of very high character, who would be only too willing to go to any length in their sacrifice for the common cause. It is for these that we are pleading. I must say that I share my noble friend's disappointment with the reply we have received. I do not know if my noble friend would wish to press this matter. Lord Wedgwood is detained elsewhere, and I do not like to take the responsibility in his absence, but I hope this matter will be reconsidered by the Government, especially when the Bill gets to another place.

Amendment, by leave, withdrawn.

LORD STRABOLGI moved, after "national," to insert "or Stateless." The noble Lord said: On behalf of my noble friend Lord Wedgwood, I beg to move this Amendment.

Amendment moved— Page 2, line 24, after ("national") insert ("or Stateless").—(Lord Strabolgi.)

THE LORD CHANCELLOR

As I understand it, this Amendment really is a special case of the wider proposition which your Lordships have just negatived. I agree, if I may say so, that in some respects it is a case which more particularly attracts sympathy, but I am afraid the answer I must give is the same as I gave before. There is indeed an additional reason. Nothing is more undesirable than that we should, out of a very natural and genuine sympathy, make changes in the law which will not really produce some practical effect. It raises hopes which cannot be fulfilled. If you put in these words that Clause 4 is to apply to a Stateless person who is serving in the Forces, you at once raise a hope that some of these people—I do not know how many there may be; no doubt there are hundreds of them—stand a fair chance of getting British naturalization through this Bill. Lord Strabolgi was perfectly right just now when he emphasized that it would still be necessary to satisfy the Home Office that the individual was a proper person to be naturalized. I hope I did not gloze over that. Anyhow I assert that that is so. One of the very first questions that would be asked, as the Home Office has pointed out to me, would be this: Is the individual a Stateless person? He is not a Stateless person because, for example, he is a Jew, even a non-British Jew. This would involve an inquiry as to whether or not he is, or was formerly, of a particular foreign nationality. I do not wish to speak of my own knowledge, though I have known in the past of a great many of these cases when I was at the Home Office.

I am quite sure that that sort of inquiry cannot be conducted when the foreign country in question is at war with us. You cannot establish in this country that A.B. is an ex-German Jew, an ex-Russian Jew, or an ex-Polish Jew with anything like the precision that would be necessary if you were to put in such a provision as this. I am not speaking in the least plausibly or superficially. I feel the deepest possible sympathy with these people who are without a country, and I would gladly see some practical means by which their position could be relieved; but having gone through this, as I have done, with the Home Office, and having had the advantage of the advice not only of their officials but of the Home Secretary himself in more than one communication, I must accept it that the machinery for making such an investigation simply cannot be worked during war-time. We have turned it on to other duties. The officials, the police, and everybody who in peace-time were engaged on this very difficult inquiry are now on other duties, and I must ask the Committee to keep this clause as it is in the Bill in fulfilment of a specific pledge by which we are all bound that we should not seek to extend it to other cases.

LORD JESSEL

May I ask the Lord Chancellor whether, if a Stateless person is serving in the Pioneers and has been here before and fulfilled the five years qualification, he would be eligible?

THE LORD CHANCELLOR

Yes, he certainly would. All the ordinary rules would apply to him; but even if he has fulfilled the ordinary conditions the investigation of the case is much more diffi- cult in time of war than it would be in peace-time, because the machinery is being otherwise used. Undoubtedly the ordinary rule would apply. The man would be required to prove that he was not a British subject, that he had been here for five of the last eight years, that he was vouched for as being respectable, that he was able to speak English and so on. Under these conditions he would get naturalization under the ordinary law.

LORD JESSELL

Supposing he is serving abroad—say in South Africa—on behalf of the Government, would that be taken into account?

THE LORD CHANCELLOR

That would count for this purpose as residence here.

LORD STRABOLGI

I can assure the Lord Chancellor that those who are supporting this Amendment are not converted by his argument. I rise only to clear up one matter. The Lord Chancellor was good enough to say that it was particularly difficult in the case of a Stateless person who originally came from a country with which we are at war. Surely, in the event of an investigation such as he has described there is no thought of applying for information about a person making application for naturalization to the German police authorities. That is what it sounded very much like—because we are at war certain investigations could not be made. These people are refugees who, for political or other reasons, have fled from Germany, from German tyranny. Surely, we do not apply to the Germans in such a case.

THE LORD CHANCELLOR

What I mean is this. If, having rejected the broad Amendment, the Committee now seek to make a narrow Amendment, the facilities are limited to people who are Stateless. They would have to prove they are Stateless and that would not be a very easy thing in all cases.

LORD STRABOLGI

In the circumstances I do not propose to press the matter.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clauses 5 and 6 agreed to.

LORD BALFOUR OF BURLEIGH moved, after Clause 6, to insert the following new clause: —.(1) No woman who is a British subject shall, by reason only of her marriage to an alien after the commencement of this Act, lose her British nationality. (2) At any time after the commencement of this Act any woman who was a British subject and lost her British nationality before such commencement by reason only of her marriage to an alien shall be at liberty to apply to the Secretary of State for a certificate of resumption of British nationality. (3) The marriage after the commencement of this Act, of a woman who is not a British subject at the date of such marriage, to a man who is then a British subject, shall not confer on such woman British nationality. (4) A woman, notwithstanding marriage, shall be competent to apply for and receive the grant of a certificate of naturalization under the same conditions as a man.

The noble Lord said: I must begin what have to say by expressing my very great regret that I was not able to be here on the day when the Second Reading of this Bill was taken in your Lordships' House. In my own defence I must explain that I was engaged on Government business in another part of these islands. Fortunately or unfortunately the scientists have not yet explained how we can be physically in two places at once, which is perhaps just as well. Had I been able to be in your Lordships' House I should have attended. That being so, with your Lordships permission I must preface what I have to say by some remarks which, although entirely relevant to this Amendment, are rather of a Second Reading character. I wish you to have in mind the background against which we are considering this question of amendment of nationality. The attitude of His Majesty's Government towards the nationality of a married woman is summed up by a declaration which was made in 1931 at the League of Nations, when it was declared on behalf of the Government that the British Government considers that it is right that all disabilities of married women in matters of nationality should be removed, and that in so far as nationality is concerned a married woman should be in the same position as a man—married or unmarried—or any single woman. That is a perfectly specific declaration and one which expresses a policy which, so far as I am concerned, would be entirely satisfactory to me. That declaration was repeated in Parliament by the Government when the Bill dealing with nationality was under consideration in 1933, and so far as I know that still re- mains the declared attitude and policy of the Government.

That is the situation which the Government would like to see. The actual position is very different. The actual position is that a British-born woman who marries an alien loses her British nationality on marriage whether the alien is hostile or friendly, and a foreign woman, an alien woman, whether belonging to a friendly or hostile country, does automatically acquire British nationality when she marries an Englishman. I venture to say that those two circumstances are highly inimical to the prosecution of our war effort, and that is my reason for bringing the matter before your Lordships to-day. There is, I know, some relief by way of regulation for the unfortunate British woman who is married to a friendly alien, but her position is far from being wholly relieved and she remains under many disabilities. The most interesting of these disabilities arises out of a difference between the position of a British woman who marries a friendly alien and the position of a British woman who marries a hostile alien, because there was included in the 1914 Nationality Act a specific clause (No. 10) and a subsection (No. 6) which was repeated in the 1933 Act, whereby in the case of a British woman married to an alien, if that alien became a hostile alien then she could make application for a declaration by which she was entitled to recover her British nationality, and that in fact is happening. I saw a paragraph in The Times nearly two years ago which stated that no less than 400 such German women—that is to say, British-born women who were married to Germans—out of 80o had made application for, and had been granted, the restoration of their British nationality. That of course is not open to the British woman who is married to a friendly alien, paradoxical and ridiculous as that may appear, with the result—and it is happening—that these British women, who are as British as any one of your Lordships in sentiment and everything except, technically, nationality, are being debarred from taking the part which they would wish to take in the national war effort.

As the Lord Chairman has stated, I have put down two Amendments. The first is of a very wide and comprehensive character in four subsections. The first says: No woman who is a British subject shall, by reason only of her marriage to an alien … lose her British nationality. That, of course, is a comprehensive Amendment. That state of affairs dates only from 1870. I am not asking your Lordships to give rights to women which they have not had. I am not asking you to do something which would be entirely new. These rights were only taken away from British women in the course of the last century, as recently as 1870. The second subsection deals with the specific case which I referred to and would put the British-born woman, the wife of a friendly alien, in such a position that she would be given the same advantage as the wife of a hostile alien. At present she can get her British nationality back only if her husband either dies or divorces her or is divorced, and I am almost inclined to suggest to your Lordships that it is against public policy to leave that big incentive to murder open to a woman in that position. She has nothing to do but to put some strychnine in her husband's tea and she will almost automatically resume her British nationality.

Subsection (3) would restore the position to what it was before 1844, rather less than 100 years ago. That would prevent the foreign woman becoming automatically British. I think your Lordships can see what a dangerous thing it is in war-time for the wife of any alien, be he a friendly or a hostile alien, automatically to become British without having to subscribe an oath of loyalty or anything else by simply marrying an Englishman. There are many hundreds of thousands of foreigners here just now. Subsection (4) is a very wide one and says: A woman, notwithstanding marriage, shall be competent to apply for and receive the grant of a certificate of naturalization under the same conditions as a man. Those four subsections taken together would possibly, with some overlapping, put the whole law of the nationality of married women into a position which I understood would correspond with the Government declaration of 1931. If the Lord Chancellor says that this is not the occasion in which to deal in a comprehensive way with this question—and I think he did say something of that kind on Second Reading—then perhaps we could consider the matter more in detail on my second Amendment. Meanwhile I beg to move the first Amendment.

Amendment moved— Page 3, line 22 at end insert the said new clause.—(Lord Balfour of Burleigh.)

LORD MARLEY

I want to say one word only in support of the noble Lord, Lord Balfour, on these Amendments. If carried, they would be in agreement with the practice in the United States of America. In the United States of America, if a woman marries an American citizen she does not automatically become herself an American citizen until she has gone through all the normal procedure of adopting citizenship, with this exception, that the period of time during which the application would lie is reduced by two or three years or something like that. She still has to go through substantially the same sort of procedure. I think it would be advantageous, and it would make for better understanding between the two countries, if we could substantially bring into line the rules which affect, and will increasingly affect, American men marrying British women and British men marrying American women. If we could make the rules more nearly equal it would facilitate that better understanding which we desire to see between the two countries.

VISCOUNT MAUGHAM

The matter which is raised by these Amendments is a matter no doubt of the greatest importance and my noble friend Lord Balfour of Burleigh has presented the case for the Amendments with his usual force. I am the last to say that there is not considerable substance in the measure of amendment for which he is pleading, but I cannot help feeling that the Committee before assenting to it should take account of some of the considerations on the other side. This view has not yet, as I conceive, been properly mentioned. As my noble friend Lord Balfour pointed out, for many years, according to the Common Law of England, a woman on marriage retained her nationality. A British woman, like other British subjects, was unable to get rid of her nationality. Common Law did not touch any exception. It was not until the year 1870 that in this country the doctrine was accepted that a woman on marrying must take the nationality of her husband automatically. That alteration of the law was not made without very careful consideration.

There was in the year 1868 a Commission appointed of a number of most eminent people who ascertained the law of all Continental countries and of America in connexion with this matter of nationality, and who reported early in the year 1870, with the result that the Government introduced the Bill which subsequently became the Naturalization Act of 1870. It was presented in this House by the Lord Chancellor, who was then that eminent lawyer Lord Hatherley, in a long and careful speech which your Lordships cart read in the Official Reports for the year 1870 at page 1118. It appears that all these various questions were most carefully considered, including the question of the nationality of a woman on marriage.

There were a number of objections to the then existing law. One objection was that, as had been ascertained by the Report of the Commission, there were different laws in different countries, and as the result of the position before the Act of 1870 was passed a number of women were held to have acquired a nationality by foreign law but to have been left with their British nationality according to British law. It had been found that a double nationality led to very grave objections from the point of view of the position of the people who were in that state. I agree with what has already been mentioned to-day as to the unhappy position of those who have no State, but I wish to observe that there is also a good deal of inconvenience in having two States, in owing allegiance to two countries which may be at war with each other. Those are not the only points, of course, which induced the Government to put forward the Act of 1870, which was passed after debate in this House and the other House with nothing but suggestions in relation to slight matters of form and without a Division in either Hoarse. I would humbly suggest to your Lordships that to go back on that definite, careful decision of the Government, which so far as I know has worked justly for all these years since 1870, and to adopt by way of amendment to the Government Bill which you now have before you a return to the old plan which has been proved to be very unsatisfactory, would not be a wise or prudent course.

It so happens—I do not know that I am in any different position from other members of your Lordships' House—that I know half a dozen different people who are British wives married to foreign husbands or British husbands married to foreign wives. So far as I know, and so far as any outsider can have an opportunity of knowing, these marriages are perfectly happy and contented marriages. But if you are going to have on marriage, in the cases with which my friend Lord Balfour is dealing, two nationalities, at once you have a kind of barrier between husband and wife which is going to be exceedingly difficult. In the first place there may be children; probably there will be children in most cases. The mother in the early stages is the person to teach the child something about the country that they live in, something about patriotism and something about religion. Take the case of a British subject, a man who is married we will say to a friendly alien, or an enemy alien, it matters not much. Who is to teach the children the basic points of patriotism with all that is involved? It must be the mother in nine cases out of ten. Is it to be suggested that it will be a happy time for the husband if, when he is at work at his profession or business, he has to think that his wife all the time is instilling into the children patriotic feelings towards some other country? It does not seem to me to be a particularly pleasant state of things between husband and wife.

The wife, it may be, is going to remain an alien, while the husband is a British subject. What are the consequences? An alien has not got a right to reside in this country. There are rights to refuse entry into this country as regards aliens and rights to deport them. Imagine the position which would arise if a husband and wife who were in this lamentable position came back from a visit abroad, undertaken for purposes of business or pleasure, and found on board the vessel that the wife, or it may be the husband, was refused permission to enter the country, while the spouse was allowed to continue. Moreover, they have to have different forms of passport, and they have different rights in this country. Aliens, whether friendly or hostile, have purely permissive rights, while British subjects have a complete right to enter, save in very exceptional circumstances, and to remain in this country.

There are a number of points of that kind which have to be considered, it seems to me, before we change the law of this country in a matter so important as this. It is curious, and it is not obvious until you begin to investigate the question, how many matters turn upon nationality. For example, take the question of copyright in unpublished works in this country. If you are a British subject, you get it straight away; if you are an alien, you do not get it because of your nationality, but you may get it if you can prove that you have written or composed the work in this country. If an alien goes abroad and composes a novel, or whatever it may be, in the south of France, he will have no right in that unpublished work. That is only one of a dozen instances which might be given; and all these troubles may arise between husband and wife if, as the result of amendment of the existing law, the nationality of the two is to be different because of the fact that marriage is not to make them one for this purpose.

Let me add this. Has my noble friend worked out in his mind what he wishes to be the result of this proposal as regards the domicile of these spouses, when they have a different nationality? What is to be the result as regards questions of divorce, which depends upon domicile? Has he considered the curious result which would arise if the view adopted was that the domicile, at any rate, must be that of the husband, but that the nationalities might be perfectly distinct, although the country to which a man owes allegiance might call upon him to return, under the law of allegiance to that country of which he is a subject? I feel that I have already said too much with regard to the objections that there are to the Amendments which are proposed. I should like to repeat that I do not think it is right to say that the arguments are all on one side. There is a good deal to be said for my noble friend's- view on this point, but I have come to the conclusion, on consideration, and after having consulted a certain number of married women of my acquaintance, that the arguments against the Amendments are as great as in their favour and therefore the status quo should be preserved. I know that most married women will say that it is impossible to have the position that a woman should live with an enemy alien in the same house while the war is going on, she being of a different nationality from her husband. The nationality of the two in those circumstances must, I submit, be the same if their happiness is to endure.

VISCOUNT SANKEY

I should like to say a few words on this question. I entirely agree with Lord Balfour of Burleigh that this is an end which we should aim to reach, but the question at the moment is whether it is wise at the present time that we should do what is proposed. The real difficulty in this matter is the question of the children. There are great difficulties with regard to the children where the husband and wife are of different nationalities. I quite agree that it is extremely hard on an Englishwoman who is married, say, to a German, to have to support the disabilities and the difficult position in which she is placed during the war, but some measure of relief has been given to such cases. With regard to the other cases, I very much hope that when the war is over some remedy will be found for a very unjust state of things.

I hope your Lordships will forgive me for mentioning one or two things that happened to me when I happened to be Lord Chancellor. A deputation of these women waited upon me; five of them came to press their case for a larger measure of freedom for married women. They were extremely polite. One young woman said: "I was born in Edinburgh, and I have lived there all my life, but I am a Finn"—she had married a Finnish man. Another lady said: "I have only once been out of England, and that for a week in Paris, but I am an Italian." A third had some other nationality. I am anxious to relieve those women, but there are really very great difficulties to be faced, and the matter needs more careful thinking out and should not be dealt with in a Bill on a side-issue, which is intended to deal simply with the war situation. Women who are married to Germans have been relieved, as I have said, by regulation. I hope the time will come when a greater measure of relief will be given to these cases, and I shall certainly vote for it, but I hope that this Amendment will not be made to this Bill now.

THE LORD CHANCELLOR

This very important and interesting question has been thrashed out between various speakers in the Committee, and there is not much that I need say. I desire in what I do say not to be understood to be taking sides on the major question to which my noble and learned friend Lord Sankey has just referred. The question is, as he justly said, whether a provision of the kind suggested should be put in the present Bill, and I think that I can satisfy the Committee in a very few sentences that that would not be a wise course to take. The noble Lord, Lord Balfour of Burleigh, introduced this Amendment with his usual clearness and, if I may say so, I thought that the outline he gave of the existing law was right enough, subject, perhaps, to one point which is worth mentioning. It is not the law that a British woman automatically acquires the nationality of a foreigner by the mere fact of marrying him; before that happens, it is necessary that she should acquire the nationality of her husband by the law of her husband's country by reason of her marriage. The case mentioned just now by Lord Marley, of an Englishwoman living in this country who marries an American in an English church or registry office, is an example of this. She does not become an American citizen at once. There are conditions in American law and formalities which are involved, and as a rule a considerable time must elapse before she can become a citizen of the United States. Although she is married to a United States citizen, she does not herself become a United States citizen by the fact of her marriage until all those conditions have been fulfilled. I say that merely in order that we tray have the broad basis of the existing law correctly laid down.

Now, without taking on this occasion any sides at all on the broad issue, really it can be quite rapidly demonstrated that we should not introduce an Amendment on this most important subject in the present Bill. Lord Marley referred to the United States of America. I would refer to the British Dominions. It has been the invariable practice in the development of our law of nationality here in this island, as from time to time modified by Acts of Parliament, for example by the one which was carried under the authority of the late Lord Chancellor, Lord Sankey, not to make changes in our own law about it except by agreement with the Dominions. Every single clause in this Bill as I presented it to the House is a clause which was agreed with the Dominions, and they will make corresponding adjustments. There could not be any result more mani- festly inconvenient, and on every ground to be regretted, than that the law of nationality in Canada or Australia should differ in some fundamental particulars from the law of this country as regards married women. This is one of the things in which by mutual good will and consultation we are endeavouring to get the law of the whole Empire on a common basis, and there has been, as your Lordships probably know, more than one Imperial Conference on the subject.

I have not the least doubt that when we return to days of peace we shall have another of these consultations with the Dominions on this subject, because undoubtedly very strong feelings are aroused and very important arguments can be used for certain changes, though I do not say that the arguments are all one way, and some of those matters mentioned by Lord Maugham are very well worth thinking about. If it was not indeed for the feeling so strongly entertained by many women—and I do not reproach them for it in the least—that there is something in our present law which is not just to women, there would be a great deal to be said for a single nationality to attach to a family. The result would be for example that the children would carry the nationality which belongs to both their parents. And one of the questions which I do not pause over now or seek to give an answer to but which has to be very seriously considered before a change is made is: If a woman does not acquire the nationality of her husband but retains a different nationality of her own then if you please what is the nationality of the child? If the nationality is the nationality of the father then that looks very much like a new grievance on the side of the women, but there might perhaps be some difficulty in persuading all husbands that the child should in all cases adopt the nationality of the mother. And while the child is a child the child certainly cannot decide for itself. So at present we have, or we may have, a passport which carries the family.

There are quite serious arguments the other way. I do not think I have ever expressed myself against the proposal in principle. I am considerably impressed with the difficulties involved. There was one case which was a terribly hard case and which I am glad to think Parliament has now corrected. It is one thing to say that if an English girl or Scottish girl should marry a foreigner she will take his nationality: it is quite another thing to say that she shall remain in that position if the country to which her husband belongs is at war with her own native land. And there were cases in the past of very great hardship arising from that state of things. And therefore, as Lord Balfour informed the Committee, a provision was made, which was repeated in the Bill of Lord Sankey, though it really came from the Act of 1914, to this effect: Where an alien is a subject of a State at war with His Majesty it shall be lawful for his wife, if she was at first a British subject, to make a declaration—it is not quite to make an application for a declaration, she makes the declaration—that she desires to resume British nationality, and thereupon the Secretary of State, if he is satisfied that it is desirable that she should be permitted to do so, may grant her a certificate of naturalization.

My noble friend who moved this Amendment informed the Committee, I have no doubt accurately, that some time ago he had ascertained that some 400 cases of that kind had already resulted in the married woman resuming her British status. I have rather later information, and I am glad to be able to tell the Committee that under that section by which the Home Secretary has this discretionary power the Home Secretary or his predecessor has already granted over 2,000 certificates during the present war. Now I think that it is really dealing with a case of immediate difficulty effectively. But I could not agree that we should make a more general change whatever be the arguments on the one side or the other. It really would be disastrous if we started off as a Parliament at Westminster altering the law on this subject without having the assurance that the Dominions, who are equally interested, were agreeable to make corresponding changes. Therefore, without going into deeper matters, I hope your Lordships will see that there are good reasons why we should not accept my noble friend's Amendment.

LORD MARLEY

What is the actual position of an Englishwoman who marries an American? She does not become an American citizen, but she loses her British nationality. Is she then a Stateless person? Is that the position?

THE LORD CHANCELLOR

I do not think so. This is a very tricky subject, but I think I am right when I say that a British woman does not cease to be a British subject unless she acquires the nationality of her foreign husband by reason of the marriage.

LORD BALFOUR OF BURLEIGH

After what has been said, I think the simplest course would be for me not to press this Amendment but to turn to the subject on the next Amendment. I beg leave to withdraw.

Amendment, by leave, withdrawn.

LORD BALFOUR OF BURLEIGH had an Amendment on the Paper to insert the following new clause: (1) At any time after the commencement of this Act any woman who was a British subject and lost her British nationality before such commencement by reason only of her marriage to an alien shall be at liberty to apply to the Secretary of State for a certificate of resumption of British nationality. (2) The marriage after the commencement of this Act, of a woman who is not a British subject at the date of such marriage, to a man who is then a British subject, shall not confer on such woman British nationality. (3) A woman, notwithstanding marriage, shall be competent to apply for and receive the grant of a certificate of naturalization under the same conditions as a man.

The noble Lord said: My original intention in putting down the Amendment in this form was to present your Lordships with what I considered to be the desirable programme on the first Amendment, and then, if that was not acceptable to your Lordships, that we should proceed rather on the à la carle principle and select those dishes which we might fancy on the second menu—always having regard to the limitation which is imposed by war-time regulations. But since I came into the House I have been given to understand that it would not be in order for me to move the subsections which are on the Paper seriatim; I understand that is not done. Consequently I would like with the permission of the Committee to eliminate subsections (2) and (3) of the Amendment I have on the Paper and move the Amendment in this form: At any time after the commencement of this Act any woman who was a British. subject and lost her British nationality before such commencement by reason only of her marriage to an alien shall be at liberty to apply to the Secretary of State for a certificate of resumption of British nationality.

In those circumstances I relate this Amendment to the subject which I mentioned in my first remarks and which has been confirmed by the Lord Chancellor, that should a British woman marry an enemy alien she can get her British nationality back. Also the fact remains that should the alien whom she had picked not be an enemy alien, or not get into war with this country, then she cannot. That does seem to me to be an anomaly which ought to be put right. The Lord Chancellor has told us that no fewer than 2,000 of such British-born women have had the advantage of the restoration of their British nationality. The noble Viscount, Lord Sankey, told your Lordships of the pitiful circumstances which were mentioned to him when the deputation came to him, and I think the Lord Chancellor has rather given us to understand that the change was made because of the hardship to the women themselves.

I place my plea for my Amendment on a different fooling. I am not overlooking the hardship. The hardship has been bitter in many cases. It has been bitter even in the case of women married to friendly aliens because they are under the taint of being aliens and they suffer from great economic drawbacks. The hardship may not be quite so great in the case of friendly aliens as it is in the case of enemy aliens, but there are circumstances in which it is very bitter indeed. The reason I am going to urge on your Lordships is not hardship to the individual, because we have been told over and over again that hard cases make bad law, but the fact that these women are prevented from taking part in the war effort. This Bill is a hotch-potch, and I can see no logical reason against altering it in this very small degree.

The principal plea which the Lord Chancellor gave—that we must keep in line with the Dominions—does not bear a moment's examination. I am quite certain that the Lord Chancellor did not intend to indicate to your Lordships that the law was the same and that therefore we must only take steps forward together. He did say that this Bill was agreed with the Dominions, and unless your Lordships were listening carefully you might have got the impression that the law was the same both here and in the Dominions and that therefore we must not alter it without the agreement of the Dominions. That is not the position at all. Since the Act of 1933 Zealand and Australia have actually made the change, or something like it, which I am suggesting. There a British woman can retain her British nationality on marriage so long as she resides in New Zealand or Australia respectively. With great respect to the Lord Chancellor, the whole of the argument about not moving without the consent of the Dominions is really of no importance at all. You have got the simple fact that a woman who is married to an enemy alien can get her nationality back but the woman married to a friendly alien cannot. With great respect to Lord Sankey, that is not done by regulation, it is done by Statute—it is in the Bill of 1914. Therefore there is no reason why this Amendment should not go into this Bill, too.

I could give your Lordships a hundred examples of women who are prevented from taking part in the war effort because of their lost nationality. Mrs. A., for example, is a British woman married to a Pole. She was working in the Foreign Office, and has been turned out of her employment in the Foreign Office simply because of the technicality of her nationality. There is no slur on her, but as a Pole she is not eligible for that employment. There is Mrs. B., British born, married to a Belgian. This is an even harder case. This lady was actually beginning to get a divorce in Belgium before the war, but it was prevented through the enemy occupation. She-is back in this country, but she is a Belgian and a Belgian she will remain, unfortunately, until the husband dies or divorce can be got. Meantime she is anxious to serve, and could give useful service, but is prevented from doing so. Mrs. C, also British born, was working in the Royal Institute of International Affairs. She is now prevented from doing so while at the same time foreigners who acquire British nationality become eligible, though they may not be any more trustworthy or suitable.

Finally, if we are to consider hardship, here is a case of a lady married to a German. They were living in Germany. In 1934 this German left the country because he hated the Nazis, and was deprived by them of his German nationality. When war broke out he was locked up here because he was a German. His wife has been refused permission to appeal under this clause because the Germans have deprived him of his German nationality. The Home Office say, "You are not a German, therefore your husband is not an enemy alien and you cannot get the benefit of this clause." That is really outrageous. I beg to move the Amendment in its altered form.

Amendment moved—

Page 3, line 22, at end insert the following new clause: ("At any time after the commencement of this Act any woman who was a British subject and lost her British nationality before such commencement by reason only of her marriage, to an alien shall be at liberty to apply to the Secretary of State for a certificate of resumption of British nationality.")—(Lord Balfour of Burleigh.)

THE LORD CHANCELLOR

I am becoming familiar with the laxer rules of order which prevail in your Lordships' House, but I should wish to call attention to this particular example because, I confess, it rather puzzles me. What my noble friend is now moving is printed on the Paper as a sort of subsection (1) of a proposed new clause. It consists of fifty-two words, and the noble Chairman has just read these words to the House. These fifty-two words are exactly and precisely the same as the fifty-two words which are contained in subsection (2) of the Amendment previously moved and just negatived by the House.

NOBLE LORDS

Not negatived—withdrawn.

THE LORD CHANCELLOR

I did not know that that made a difference. I should have supposed the Amendment must cease to be a valid proposal if it is withdrawn. I cannot see a single word of difference between them. If your Lordships are good enough to look at the words which the Chairman of Committees has just read to the House, you will find that they exactly correspond to the words which I am taking the liberty of reading from the Amendment paper: At any time after the commencement of this Act any woman who was a British subject and lost her British nationality before such commencement by reason only of her marriage to an alien, shall be at liberty to apply to the Secretary of State for a certificate of resumption of British nationality. These are exactly the same words. I feel therefore a certain difficulty because I had thought that proposal had been disposed of.

If I am to deal with it, there are just two things I must say. First of all, to get the record right, my noble friend Lord Balfour will forgive me, but I am told he is misinformed about the law in Australia and New Zealand. It would be a pity if this misunderstanding spread more widely. My information is that the law referring to British nationality is the same in the United Kingdom and in the Dominions, that Australia and New Zealand have not changed it, that the nationality law, in the sense stated by Lord Balfour, stands. They only provided that British women married to aliens could exercise certain civil rights in those Dominions. At any rate, that is my information. I hope the Committee will agree that we cannot enter into alterations of the law of this country at this time in respect of women married to friendly aliens. The case for the woman married to an enemy alien is obviously entirely different, but to make the same provision about women who are married to friendly aliens is of course exactly the same thing as upsetting the existing law of nationality for married women altogether.

LORD ADDISON

The point has been put by the noble and learned Lord Chancellor, if I may say so, a little by way of special pleading. The Amendment which was withdrawn would have been a drastic alteration of the law, and the debate upon it was more or less on that understanding, but this is a very narrow point that is raised by the noble Lord, Lord Balfour of Burleigh, now. It affects every woman who marries a foreigner. The point is that the noble Lord would put the women who have married friendly foreigners in the same position as those who have married enemy foreigners. That is the only point of the proposal and it seems common fairness and common sense that if we extend those facilities to one who has married an enemy we should extend them also to one who has married a friendly alien.

LORD BALFOUR OF BURLEIGH

I think I would only say in reply to what the noble and learned Lord Chancellor said that if he has to take refuge in a technicality, which I think he did—

THE LORD CHANCELLOR

I hope my noble friend will forgive me. I do not think I did take refuge in a technicality; I merely called attention to the fact that the provisions of an Amendment which was withdrawn a quarter of an hour ago are now being repeated. I suppose that if this is now negatived, then it will be a technicality to object to its being raised a third time.

LORD BALFOUR OF BURLEIGH

I accept entirely that the noble and learned Viscount does not cake refuge in a technicality. In that case I do not know what he is taking refuge in. As the noble Lord opposite said, the British-born wives of enemy aliens can have their nationality restored; the British-born wives of friendly aliens cannot. On the specific point that it is not in accordance with the law of the Dominion, subject to correction I am informed that in 1934 New Zealand passed legislation to give British-born women who married aliens the right to retain their British nationality as long as they resided in New Zealand and in 1935 similar legislation was enacted in Australia. If that information is reliable—there may be an error, but I think it was agreed that is correct—it seems to me that it does dispose of the principal argument against this Amendment put forward by the Lord Chancellor. I would appeal to the Lord Chancellor in these circumstances to go into it between now and Third Reading and give the matter consideration. In that case I shall be happy to withdraw the Amendment, but otherwise, as there seems to be a good deal of support in the Committee, I think I shall have to go to a Division.

THE LORD CHANCELLOR

I should want to do everything that is agreeable to my noble friend but I must not mislead him in any way. The Government are bound to ask the Committee to refuse in this Bill to alter the law relating to British nationality further than the Bill does here. It is the fact that everything we have got in this Bill has been agreed to with the Dominions. It is the fact that we should not make this change except as a result of communication with the Dominions and we are not willing to do so. As for this being a small matter, I must say I should think that there is all the difference in the world between noting what is the law of the land that a woman married to a foreigner may aim to get back her British nationality if the foreigner goes to war with us, and proposing to make by this Bill new and far-reaching changes in the law as it was enacted in 1870. If those two things are the same then I have misunderstood this matter very greatly.

On Question, Amendment negatived.

Clause 7 agreed to.

Clause 8:

Amendments of Section nineteen of principal Act.

Regulations may be made under Section nineteen of the principal Act—

  1. (a) for any purpose for which it appears to the Secretary of State to be expedient to make such regulations in consequence of the provisions of this Act:
  2. (b) for enabling the births and deaths of British subjects born or dying in any country in which His Majesty has for the time being no diplomatic or consular representatives to be registered by persons serving in the diplomatic, consular or other foreign service of any Power which, by arrangement with His Majesty, has undertaken to represent His interests in that country:

THE LORD CHANCELLOR moved to insert, at the end of paragraph (b), "or by a person authorized in that behalf by the Secretary of State." The noble and learned Viscount said: This is a small change which we find it necessary to make in the text of the Bill, because it appears that the Protecting Power, which at the present time is Switzerland, is not prepared to allow its Consular officials to perform the proposed service on behalf of British subjects without restriction. They will do so as regards the Far East but the Swiss Government do not feel able to do this as regards Europe. Negotiations are at present proceeding to clear up the point, but if the Swiss Government persist in their present view the provisions of the Bill as introduced will not avail British subjects in Europe. The Amendments in my name are intended to meet this situation, permitting the registration of the births and deaths of British subjects in question to be registered by a person authorized by the Secretary of State. It is intended to make regulations authorizing registration at the Foreign Office either on information supplied by the Consulates of the Protecting Power or in those cases in which the parties concerned have been repatriated on information supplied by them. I beg to move.

Amendment moved—

Page 3, line 42, at end insert ("or by a person authorized in that behalf by the Secretary of State").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Special provisions as to registration of births in time of war]:

THE LORD CHANCELLOR

I beg to move the Amendment in my name on Clause 9.

Amendment moved—

Page 4, line 9, after ("Power") insert ("or by a person authorized in that behalf by the Secretary of State ").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 9, as amended, agreed to.

Remaining clauses agreed to.

Schedule agreed to.

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