§ 3.5 p.m.
§ 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.400
§ [The LORD MERTHYR in the Chair.]
§ Clause 1 agreed to.
§ Clause 2:
§ Refusal of admission and conditional admission
§ 2.—(1) Subject to the following provisions of this section, an immigration officer may, on the examination under this Part of this Act of any Commonwealth citizen to whom section one of this Act applies who enters or seeks to enter the United Kingdom,—
- (a) refuse him admission to the United Kingdom; or
- (b) admit him into the United Kingdom subject to a condition restricting the period for which he may remain there, with or without conditions for restricting his employment or occupation there.
§ (2) The power to refuse admission or admit subject to conditions under this section shall not be exercised, except as provided by subsection (5), in the case of any person who satisfies an immigration officer that he or she—
- (a) is ordinarily resident in the United Kingdom or was so resident at any time within the past two years; or
- (b) is the wife, or a child under sixteen years of age, of a Commonwealth citizen who is resident in the United Kingdom or of a Commonwealth citizen (not being a person who is on that occasion refused admission into the United Kingdom) with whom she or he enters or seeks to enter the United Kingdom.
§ (3) Without prejudice to subsection (2) of this section, the power to refuse admission under this section shall not be exercised, except as provided by subsections (4) and (5), in the case of a Commonwealth citizen who satisfies an immigration officer either—
§ (b) that he wishes to enter the United Kingdom for the purpose of attending a course of study at any university, college, school or other institution in the United Kingdom, being a course which will occupy the whole or a substantial part of his time; or
§ (4) Nothing in subsection (3) of this section shall prevent an immigration officer from refusing admission into the United Kingdom in the case of any Commonwealth citizen to whom section one of this Act applies—
- (a) if it appears to the immigration officer, or to a medical inspector, that he is a person suffering from mental disorder, or that it is otherwise undesirable for medical reasons that he should be admitted; or
- (c) if his admission would, in the opinion of the Secretary of State, be contrary to the interests of national security.
LORD SILKIN moved, in subsection (1), after "section" to insert:
and to the right of appeal conferred by the next following section
§ The noble Lord said: I beg to move the first Amendment standing in my name, and I think it might be convenient if in discussing this Amendment we also discussed Amendments Nos. 2 and 8, which deal with the same subject—namely, giving an immigrant a right of appeal against a refusal of admission by an immigration officer. This Bill has been much improved during its passage through another place, but one of the main questions we have to discuss is whether there should be an opportunity of an appeal by an immigrant who has been refused the right of admission.
§ Admission may come about under three different heads. First, the immigrant may receive a certificate allowing him to come in on the ground that he has employment here. But even in such a case the immigrant's right may be qualified by the immigration officer, because the possession of a certificate of immigration is not conclusive, as the document which has been circulated, namely, the Draft Instructions to Immigration Officers, makes quite clear. Secondly, he may regard himself as being qualified, under paragraph 9, to come in as a student, although there may be differences of opinion as to whether in fact he is so qualified. Then, thirdly, there are those who come in as businessmen, self-employed and so on; and, of course, there are the wives and children, and a great variety of other people who might come in without the entry certificate that is referred to in paragraph 4 of the Draft Instructions.
§ As the Bill stands, the last word as to admission or non-admission rests with the immigration officer. He will have a considerable number of cases to deal with at the time. We cannot give exact numbers, but if we judge by the average of admissions in past years it looks as if there may be 40,000 or 50,000 cases of admission a year. About a number of them a doubt will arise as to whether the immigrant satisfies the conditions or not. In practice this Bill is not intended to apply to Ireland, although I think it does nominally, and all the immigrants to whom it will apply will have come from a considerable distance and will have spent a large amount in fares. It seems to me, therefore, that there should be some procedure by which their case for admission should be properly investigated and that they should have a right 402 to put their case if refused admission by the immigration officer. It has been stated that in case of doubt the immigration officer would take instructions from the Home Office; he would put the point of view of the immigrant, and he would be given the result. But that is quite a different thing from what we are asking.
What is asked for under this Amendment is that the individual immigrant, or proposed immigrant, who is refused admission should have the right to come before an independent tribunal and put his case, which would be heard and judged by this independent body—and we have set out the nature of the independent body in Amendment No. 8. It is quite clear from the Bill and from the Instructions that the immigrant officer will be left with an enormous amount of discretion in a great many cases. I should like to give the Committee a few examples of the discretion which is being given to the immigration officer. Under the Instructions, paragraph 4, it is
The fact that a person holds an entry certificate does not of itself exempt him from the imposition of conditions…in an appropriate case.
§ The conditions may be quite onerous and the person seeking entry, who has already got the certificate required, may feel that he ought not to be subject to any conditions at all. He surely ought to have the right to put his case before an independent tribunal. We do not, of course, give this right to aliens, but everyone has expressed the deepest regret —at least every responsible person—that we have to apply this procedure at all to immigrant members of the Commonwealth. We are trying to do this to members of the British Commonwealth, and we ought to ensure that they receive fair treatment and feel that they are receiving fair treatment by having their case considered by an impartial tribunal. Under paragraph 4, even the fact that a person has come here at considerable expense and holds an entry certificate does not necessarily exempt him from having unsatisfactory conditions applied to his case, at the discretion of an immigration officer.
If noble Lords would look at paragraph 6 again, they will see that it deals with genuine visitors coming to stay with relatives. It says that these
should be readily admitted unless the Immigration Officer has reason to believe that their
presence in the United Kingdom is likely to result in a charge on public funds.
There may be considerable difference of opinion about this matter. The cases in which the immigration officer "has reason to believe," with justification for that belief, and the information upon which his belief is based, may be highly controversial, and yet, as the Bill stands, it is left to this individual, the immigration officer, to decide, at very short notice, on possibly scanty information, whether or not the immigrant should be admitted. Again, it is true that the instructions are that he should get advice where he is in any doubt, and I have no doubt that the majority of immigration officers will seek advice. But what will he seek advice upon? On what information? Surely, in many cases the information is such that it ought to be considered by an impartial tribunal, and the immigrant may not always be in a position, in dealing with the immigration officer, to state his case to the best advantage for himself.
§ Noble Lords will appreciate that very often immigrants from, say, the West Indies, who are going to constitute the majority of these immigrants, are inarticulate and find it difficult to state their case. They surely ought to have the opportunity of putting it before the tribunal, who will have the time and patience to elicit all the facts. But as the Bill stands it rests entirely with the immigration officer as to whether he takes this case and gets advice from the Home Office. He may be the type of person who is very self-confident, who feels quite sure that he has all the facts and that his judgment is sound, and that there is no reason to seek any further advice. So the immigrant who has come here at great cost—it is not like coming from Southern Ireland; it is going to be a very costly thing to come to this country—may be refused admission simply on the word of an immigration officer.
Now we come to students. Paragraph 9 of the Instructions to immigration officers deals with students, and says:
…The Bill provides that any Commonwealth citizen is entitled to admission if he satisfies the Immigration Officer of his intention to attend a course of study at any university, college, school or other institution which will occupy the whole or a substantial part of his time …
This may present some difficulty. What is meant by "a substantial part of his time"? I think it is recognised that a student coming here may not necessarily give the whole of his time; and may want to carry on other activities than studying in order that he may earn either the whole of his livelihood or some contribution to it. We have an Amendment later. On in which we seek to define what is meant by "student" and make the definition somewhat wider.
Even under the Bill as it stands, there is a good deal of room for discretion on the part of the immigration officer as to what constitutes a bona fide student who comes within paragraph 9. It is left entirely to his judgment as to whether or not the proposed student is going to give "a substantial part of his time". Indeed, paragraph 12 of the Instructions states:
The time that a student should be required to devote to his studies cannot be precisely defined. For example, those taking degree or post-graduate courses may spend little time in attendance at lectures, and much time in individual study …
The whole position gives rise to such scope for difference of opinion that it seems to me wholly unwise and unfair to the immigrant, who, as I have said, has gone to great expense in coming to these shores, to leave it to the judgment of an individual, possibly on inadequate facts and, perhaps, the inability of the immigrant immediately to state his case to the best advantage.
I could go through the whole of these Instructions. Paragraph 25 says:
A woman who has been living in permanent association with a man, even if not married to him, should be treated for this purpose as a wife. Immigration Officers should bear in mind any local custom or tradition tending to establish the permanence of the association".
There is a tremendous scope here for the exercise of discretion, of very wide discretion, and it seems both unfair and, in the case of immigrants who come from a long distance, harsh on them that the decision should necessarily rest with this one person, without any right of appeal to an impartial body. Paragraph 26 deals with the position of children. The immigration officer has to be "satisfied that proper arrangements have been made" for a child to be looked after. How can he be satisfied on the spur of the moment? It seems to me that this
is the kind of case where some kind of investigation ought to take place. Paragraph 28, dealing with the admission of unmarried sons under 21 who are still dependent, is another case which requires a good deal of investigation.
Then we come to paragraph 29:
…In doubtful cases, the Immigration Officer should take into account the strength of the wife's connexions with the United Kingdom, including her length of residence here.
These words, surely, need to be properly investigated: they cannot be left to the judgment of perhaps a harassed immigration officer who has to deal with a large number of cases. I feel that it is placing on him a very great responsibility indeed.
§ We have had a number of answers to these points in another place, where it was also discussed. One answer was that this Bill does not apply to aliens. I think I have already dealt with that point. Admittedly it does not apply to aliens. But these are British Commonwealth citizens against whom we are passing this measure, as every responsible person has said, with great reluctance, and the least we can do is to make quite sure that nobody is refused unless he has had a fair opportunity of stating his case under conditions in which he does not feel any restraint, without the pressure of having to satisfy an immigration officer and where he can, if necessary, get help in putting his case before a tribunal.
§ The other objection which has been put is the difficulty of administration. It is said that there may be a large number of these cases—though I do not think that that need be so; that it may take some time before they reach the tribunal and that in the meantime it would require the provision of a good deal of accommodation to house these people while they were waiting for their case to be heard. It is always easy to make a case on administrative grounds, but if it is right that these people should be given a hearing before they are sent back then it is for us to make the necessary provision, either by setting up a number of tribunals, so that their cases can be heard quickly, or by providing the necessary temporary accommodation. But I very much hope that the noble and learned Viscount, if he is going to reply, will not refuse this Amendment purely on administrative grounds. If it 406 is just and right that these people should be given a hearing, then we must somehow make the necessary provision. If it means having more than one tribunal, then let us have more than one tribunal.
§ I believe that in another place it was said that if there are several tribunals that raises the problem of ensuring that they all speak with a uniform voice and come to the same decision on a similar set of facts. That is true. That is the problem we have in the law courts; we have the same problem in all our courts of justice, but somehow we have managed to survive and get over it. But the same problem arises under the Bill as it stands. You have a number of immigration officers who, if there is no appeal, will likewise possibly come to different decisions on the same kinds of facts. The difference is that if there is no right of appeal then no body of law or practice is set up, and these people (and there will be a large number of them) may continue to reach differing conclusions on the same set of facts, whereas the establishment of a tribunal for considering appeals would at any rate limit the possibility of individual officers reaching different decisions Then these tribunals can get together and gradually build up a body of practice which will, so far as it is humanly possible, ensure that there is uniformity of decision.
§ It seems to me that these Amendments are so reasonable and so right in the special circumstances with which we are dealing—Commonwealth citizens whom we ought to give every possible opportunity of stating their case—that it hardly needs very much advocacy on my part. I sincerely hope that the noble and learned Viscount, although this matter has been discussed in another place, will see his way to providing some method of appeal, so that these unfortunate immigrants who have spent their money, usually a considerable sum, in coming here will have a full opportunity of stating their case and so avoiding the possibility of their being refused admission to this country on the ground that their case has not been properly put or comprehended by the immigration officers. I beg to move.
Page 2, line 11, after ("section") insert ("and to the right of appeal conferred by the next following section").—(Lord Silkin.)
§ 3.29 p.m.
§ LORD OGMORE
I feel, whether or no the Government accept Lord Silkin's Amendment, that they will have to do something of the same nature in order to get out of the difficulty in which they will find themselves under the present provisions with reference to the immigration officers. All of us who are interested in civil aviation know that at the present moment, even as things stand, it takes far longer to get from London Airport into London than it does to get from Amsterdam, Paris, Brussels, or even Rome, to London; and things are getting worse all the time. We have from the Government's own statement that they expect many millions more air passengers to come into London Airport.
Your Lordships can just imagine—this is a practical point of view, whether or not one is in favour of the Bill, because the same situation will apply —two or three big aircraft coming in from overseas in each of which, as will be the case, there will be several Commonwealth citizens. When an aircraft comes in, as we know, the whole of the passengers are dealt with as one. They go through immigration together; they go through customs together, and they go in the same bus. It is going to be a fine state of affairs if the immigration officer puts all these questions to half a dozen Commonwealth citizens. One cannot sit anywhere in London Airport as it is; there is no place to sit. What is going to happen to the other passengers? Other aircraft are coming in; there will be more hold-ups; the whole place will be a seething mass of passengers suffering even greater frustration than they do to-day.
The whole thing seems to me impracticable. The unfortunate immigration officer has a most difficult task. He has to do many things, and this is his last duty:Where admission is refused the Immigration Officer should, so far as practicable, make clear to the individual concerned the reasons for the refusal".It is not going to be very easy to try to persuade some West Indian immigrant with his wife and half a dozen children of the various reasons why he should not be admitted. That is a good hour's job, to start with. And what happens to the rest of the passengers 408 while this is going on? This is a practical problem. I warn the Government if they do not take this as a practical question, if they brush it aside, there is going to be enormous confusion at the airports. It applies more to the airports than to the shipping ports because things happen so much more quickly at the airports and people expect to be away much faster. In effect there will have to be some sort of authority such as the noble Lord, Lord Silkin, suggests to deal with any questions of dispute. It would be quite impracticable to expect the ordinary immigration officer, who has to deal with hundreds of people arriving in very quick succession, to deal with intricate problems of this nature. He does not have to do it with aliens, because these provisions do not apply to aliens.
The second point I would urge upon the Government is the position of ordinary tourists. The tourist trade, as we know, is a most important one to this country, one on which the Government is spending a considerable amount of money, with over two million people coming in a year. In order to keep out the odd overseas persons who will have slipped through the net of these various certificates and all the rest of it, I think it would be most unfortunate if the immigration officer put all the passengers travelling to this country, tourists and visitors, through a lengthy interrogation It will means in fact that many of them will not stop here; they will go on to Paris and other centres rather than stop in London and be put to an examination of this nature, asking how much money they have, where they are going to stay, and all the rest of it. It is annoying. I hope that will be borne in mind by the Government when they are framing the instructions.
Officials have got out of the way, I regret to say, of regarding travel as pleasure. When I last made a tour of the Far East, on the lengthy questionnaire which was issued to me, against the item which said, "Reasons for travel?" I put, "Pleasure". This caused the utmost suspicion everywhere I went and I saw officials' heads peering at me round barriers and over desks and they were whispering together. The idea that anybody nowadays could travel for pleasure seemed to be beyond their comprehension. I do not want people to 409 get the same idea in this country. We are very anxious in this country—particularly in Wales, as also, I am sure, in England and Scotland—that people should travel for pleasure to see us and see how we go on. I feel this Amendment deserves a great deal of thought. Whether it is exactly the right way of dealing with the problem is a matter of opinion, but I think that at any rate Lord Silkin has seen the problem and offered a solution. If the Government do not like this solution perhaps they will offer another one.
§ LORD DERWENT
It seems to me that whether one likes this Bill or not, this particular Amendment makes complete nonsense of the Bill as it is now written. What in effect you are doing—it may be right or not—is taking away from the immigration officer any power to prevent anyone coming in, because those entitled to come in he will allow to come in, and those to whom he says "No" will appeal. There will be many who want to come here who know that they cannot do so under the rules but will "try it on", and will appeal when the immigration officer says they are not entitled to come in. In those circumstances, if you are going to give the immigration officer any power at all it seems to me that this Amendment makes nonsense of it.
There are certain other things one would like to know. If there is this tribunal, how long would a case take to come before the tribunal? It was a point mentioned by the noble Lord, Lord Silkin. It might take weeks. One cannot possibly tell. What is going to happen during those weeks? Housing is not everything; a man has to be kept. He will not be allowed to earn anything during that period. Presumably he will go on National Assistance, for which we shall have to pay. I do not think this series of Amendments has been properly thought out as to its implication and how difficult or impossible it would make it for this Bill to work at all.
§ LORD MILVERTON
I should like to say immediately that I sincerely hope that the Government will not accept this Amendment or this series of Amendments. I have listened with great interest, as always, to the noble Lord, Lord Silk in, and the specious arguments 410 which he has brought forward. To begin with, may I once more contradict one of his statements, which was that this Bill is brought in against Commonwealth immigrants? It is nothing of the sort. It is brought in in the interests of this country and the immigrants in order to control the people coming into this country. I offer this objection on principle. There is this tendency—I have noticed it again and again with noble Lords opposite—of complete inability to trust an officer appointed to do a job of work under legislation. Almost invariably we get this request that there should be some guard set up to look after the guards—some body, a sort of commission, to see that they do their job properly.
§ LORD SILKIN
Will the noble Lord forgive me for interrupting? Would he, therefore, on his argument abolish all forms of appeals against a decision of any officer? After all, on his line of argument we ought to trust any officer who is given a job of work to decide, and not allow any appeal against his decision. Would the noble Lord go so far as that?
§ LORD MILVERTON
No. I would certainly not go so far as that, but I would go so far as to say that where certain duties are given to an officer of this kind necessitating decisions and it is possible to lay down general instructions as to the way in which he is to exercise his authority, if you set up a tribunal (as the noble Lord, Lord Derwent, said) there will be an appeal in every case where the authority is used against someone, and the net effect of this series of Amendments will be to wreck this Bill. I have no doubt that that would give noble Lords opposite great satisfaction, but let us face that we should be making this Bill unworkable in practice. It leads to paralysis of proper administration if you are unable to trust the officer to do the job. It is not as if there were not ample parallels in other Departments dealing with people coming in to the country where the officers concerned are able to make decisions on lines laid down.
I suggest that it is both unreasonable and wrong to alter the Bill in this sense. It is, if I may say so with the greatest respect, one of the noticeable failures of 411 Parliament—I speak now as an administrator, not as a Member of either House —to try and dictate in executive matters and to put it into legislation. I suggest that it is bad legislation to put executive orders into Acts of Parliament. With that final remark,I hope that the Government will reject this Amendment.
VISCOUNT MASSEREENE AND FERRARD
I should like to support what the noble Lords, Lord Derwent and Lord Milverton, have said. I have some slight experience of the West Indies. If you tell the average West Indian that he can appeal it is quite true that he will appeal automatically. If this Amendment is accepted it will really make nonsense of the Bill. I quite agree that there may be a few hard luck cases, where families come over and find that they cannot gain entry; but I think that those cases will be few, because this Bill is widely drawn and the immigration officer has great latitude in regard to allowing people in. If it were possible to have an appeal tribunal, surely the best place to have it would be at the chief ports of embarkation where immigration officers or some type of organisation could try to ensure that immigrants who would not gain admittance did not arrive in this country. Probably that is not practicable. I cannot support this Amendment.
§ 3.43 p.m.
§ BARONESS WOOTTON OF ABINGER
I should like to support what my noble friend Lord Silkin has said about the immense discretion which this Bill proposes to give to immigration officers, and I think it is of some importance that we should note that this discretion operates in two quite distinct spheres. First of all, there is the question of deciding who falls in what 1 might describe as the" accepted categories" —the people who are entitled to admission, who come here with certificates of employment, or who come here as students or as wives or children. So far as those categories are concerned the immigration officer's job is a strictly judicial one.
If these Instructions are put into force, then it becomes his duty to carry them out and the only question that can arise is whether a person does or does not fall within these accepted categories. The 412 decision is going to be difficult enough to make in a great many cases, as my noble friend Lord Silkin has pointed out: the decision, in view of the customs that prevail in some parts of the Commonwealth, of when a wife is not a wife; the decision, as the Bill now stands, whether a student's course is going to occupy a substantial part of his time. I should have thought it was entirely contrary to the judicial tradition of this country that decisions on these precise questions should be made by an officer without any appeals of any sort on behalf of persons whose lives and welfare are vitally concerned In them.
The second sphere in which this discretion operates is one on which absolutely no guidance at all has been given except that of a negative character. Those persons who come here who are clearly outside the accepted categories are persons who come here hoping to find employment; and the only instruction given in the Draft Instructions to Immigration Officers is that the officer is to choose between them, and the instruction, possibly protesting a little too much, says that of course the discrimination is to be carried out without regard to race, colour or religion. With regard to what is it to be carried out? On what principle is the immigration officer to choose, without there being an appeal, without anybody behind him to support his decision, between the considerable number of persons who may come here, apart from those who have the right of entry?
Let us remember that the number of Commonwealth citizens who come here as immigrants each year amounts to over 100,000, and it is still rising, and even if we suppose that those who have a right of entry number one-half or two-thirds we are still left with something like 30,000 or 40,000 persons between whom the immigration officer has to choose, as the Bill now stands, with no guidance whatever. I think that if we do not have an appeal the only effect will be to produce a high rate of nervous breakdowns among the immigration officers.
I should like to support the arguments which have been brought forward by noble Lards an this side of the House, 'by adding one point. Everyone, including the immigration officers, will know that the operation of this Bill will be reviewed within 413 less than two years; that is to say, at the end of 1963. That would seem to me to be the supreme safeguard. And who can question that during the period until the end of 1963 public spirited Members of your Lordships' House and of another place will be taking a great interest in the operation of this Bill?
If I may pass to the arguments advanced by the noble Baroness, may I ask in regard to the second kind of person she has referred to—those who do not fall within any of the accepted categories—whether she does not think it likely that all who are rejected will feel aggrieved, that all will therefore wish to appeal to a tribunal, and that therefore the working of the tribunal might become impossibly clogged and all the difficulties that noble Lords on this side have mentioned will become prominent?
§ BARONESS WOOTTON OF ABINGER
If the noble Lord will allow me to say so, I have never understood the argument that grievances should be ignored merely because they were on a large scale.
That is an answer to which I am afraid that all I would reply is that the likelihood of grievances arising under this Bill seems to me to be slight, just because the accepted categories are so many and the whole tenor of the instructions to the immigration officers is so generous.
§ LORD ARCHIBALD
Noble Lords opposite have suggested that in effect this is a wrecking Amendment, that it this Amendment is accepted the Bill becomes unworkable. It seems to me that if they are going to advance that argument they must do so on the basis that a high proportion of the intending immigrants are going to be refused. In that case, I put to them one simple question: can they now argue that this is a Bill only to control immigration, or are they not in effect now establishing what we have said, that this is intended to be a Bill to prevent immigration?
§ 3.50 p.m.
§ LORD WALSTON
The arguments against this Amendment, so far as I can understand them, are that you must trust your officials and that it is wrong to consider that they can ever make a mistake—which, as my noble friend Lord Silkin made quite clear, is surely a completely untenable argument. If those 414 arguments are right, why do we have Judges of the Court of Appeal, and appeals from noble and learned Lords who sit in this House? Obviously, it must always be expected that mistakes can be made, and it is no less likely that a mistake can be made by an immigration officer who has had no legal training and who, at any rate for the first few years of the working of this Bill, will have had no experience at all. It is no less likely that he can make a mistake than that a jury or trained lawyer can make mistakes.
§ LORD WALSTON
I am not suggesting that they are not trained in their job, but that they do not have legal training sufficient to enable them to sift a great deal of evidence of a rather conflicting and confusing kind. Even if they have been trained in their job, just as judges have been trained in their own field, I still maintain that that is no argument whatsoever for saying that no appeal against their decision can be contemplated. I would suggest to your Lordships that the effect of the decisions these men are being called upon to make has been rather brushed to one side. Without being over-dramatic in this matter, I would say that they are giving decisions which are not exactly matters of life and death but are certainly matters of life to a great many people—they are in effect life sentences. If this Bill goes through in its present form people who have saved up and for one reason or another set their heart on making a new life in this country are going to be denied a future for themselves and for their family because of the decision of one single man, with no possibility of appeal whatsoever. This is not simply a question of somebody's wanting to come over here from Southern Ireland to earn a few pounds harvesting sugar beet and then going back again, or to whom you say, "No, you are not allowed here—stay in your own peat bog", which does not make a great difference to anybody. This is a question of men and women coming thousands of miles to start an entirely new life. That is the first point.
The argument that is being advanced against it, I think by the noble Viscount, 415 Lord Massereene and Ferrard, is that if this Amendment is accepted it will nullify the whole purpose of this Bill. Surely it would nullify the whole purpose of this Bill only if the appeal tribunal allowed every single appeal from the decision of the immigration officer. I would not for a moment expect that to happen, and I think it would be a grave reflection on the officers themselves if every one of their decisions was overruled on appeal. I would not expect a very large number to be reversed; I should be very unhappy if that were to happen.
There are further reasons for this Amendment. One was touched on by my noble friend Lord Silkin, and that was the enormous responsibility which is being put on the immigration officers. Surely, it would be of assistance to them to realise, in regard to these arbitrary decisions they are called on to make, in circumstances often of considerable difficulty, that if they make a mistake, which they must realise, as responsible men, is an important mistake, then there is some higher tribunal which will put that mistake right. So, for their own sake, for their own support, I think we ought to see that there is some appeal from their decisions.
A further point is the old maxim that justice must be seen to be done. We have heard a lot in earlier debates on this Bill about the effect of this Amendment on the Commonwealth and the world at large, and I think it has been agreed in all quarters that the effect is a dangerous one—I put it no higher. I suggest to your Lordships that the had reception this Bill has already had in parts of the Commonwealth will be to some extent modified if it can be shown that we are falling over backwards—and I do not consider setting up a tribunal such a big step as that—to ensure that this very important decision is made in accordance with the best traditions of British justice, and not according to the traditions of other far more totalitarian countries where the official, the bureaucrat, has the final word.
May I make one final comment? We are talking about this subject rather too much in the abstract, with not sufficient regard to the actual personal problems involved. Haw on earth can the immi- 416 gration officer really take into account the various customs and habits of people living together in different parts of the world—in the Seychelles, the West Indies or anywhere else? He cannot know these things, and yet he is called upon to make a decision bearing these things in mind. It is very difficult for him to do so. It is also a very difficult thing when somebody arrives here from one of those countries—whether it is by aeroplane (which is going to hold up the noble Lord, Lord Ogmore, from getting more rapidly to London Airport), or by the more plebeian method of travel, by boat—after a long and to them perhaps a frightening journey, to be confronted with this investigation by an official. I am sure he is a courteous official and a kind official, but it is hard, in those circumstances, for a woman, for example, to convince him that she has been living, on a more or less permanent basis, according to the customs of her community, with a man to whom she is not married. It is also rather difficult to convince the official that the grounds on which you are coming here are strong compassionate ones —to take another point mentioned in these instructions.
It is even difficult sometimes—and this may strike your Lordships as odd—to convince him that you are the person named on your passport, because in many of the West Indies islands people live under many different names. When they go to get a legal passport it is made out according to their birth certificate, but bears no relationship to the name by which they are normally known in their community. I will tell you of a personal experience of mine when somebody who works for me in the West Indies came to this country with a letter from his brother who works over here. The letter was addressed to him and was given to the immigration officers as evidence that there was work for him, under his normally accepted name; on the other hand, his passport was made out in his legal name. No immigration officer will accept that as reasonable proof that there is a job waiting for you. He would say, "This is made out to Louis Smith, but your name here is John Jones". Yet he is one and the same man.
When a man comes off an aeroplane or a boat after a long and rough, possibly cold, journey, it is not easy for him, 417 if he has never left his own country and perhaps cannot speak our language very well, to convince an immigration officer; nor is it easy for the immigration officer to make a just and fair decision. He may quite reasonably say, "You are not the same man—out you go!". Once he has said that, the shutter has come down and nothing more can be done. That is not what we wish to happen in this case, and, surely, it is not asking too much to say that such a man should have a right of appeal—even if it means spending some of the taxpayers' money to lodge him in a hostel for ten days or three weeks until the tribunal can come along and deal with all the tens of thousands of cases your Lordships seem to fear are going to arise. Surely British justice can afford that amount, not only in order to see that members of our own Commonwealth are allowed this appeal against an arbitrary decision, but so that it can go out to the world that we want to see that justice is done and we want the rest of the world to see that justice is done; and that we are not really concerned with keeping as many as possible of these would-be immigrants out of this Island.
§ 4.0 p.m.
§ THE EARL OF SWINTON
May I add just one word, on the suggestion of the noble Lords opposite about the parallel in the Law Courts? As the noble Lord, Lord Silkin, well knows, there is very often an appeal on a matter of law but not on a matter of fact. What the immigration officer has to decide here is on the fact. If you have an appeal from him, with no guidance to the appeal tribunal, it will be merely another set of people deciding on the same set of facts. As has been very properly said, if a person is aggrieved about the facts he can appeal to one of the tribunals, and, naturally, that means that anyone against whom the immigration officer has decided will automatically appeal.
But the analogy of the courts is quite wrong. If the immigration officers are doing their job badly, then the Minister is the person responsible. It has been often said, on both sides of the House, that Parliament is going to watch very closely—and I hope it will—the way in which this Act is administered. If that is so, and if the immigration officers are doing their job badly or contrary to what 418 was the intention laid down in the Act of Parliament, then the challenge ought not to go to some appeal tribunal but to the Minister.
§ LORD CHORLEY
I apologise to your Lordships for not being in my place when this Amendment was moved, but I should like to say a word or two and it will probably be more sensible if I speak before the noble and learned Viscount who is going to reply. I may say that I approach this subject in a rather different way from most of my friends on these Benches, because I am not in principle opposed to control of immigration. It seems to me that scientific planning of the economy necessitates control. It seems to me also that the problem here is whether we have reached the stage when control is, or is not, desirable, and I should have thought it was more a question of elucidation of facts like that than of principle. I mention this only because I did not have the opportunity of speaking in the Second Reading debate and because I approach this subject in a rather different way from most of my noble friends on these Benches.
As has been pointed out, one of the great elements involved in this problem is that when there is an interference with liberty the onus is very much on those who are interfering with it. It seems to me that the economy aspect of this matter is much more important than the traditions of the British Empire, which have been emphasised a good deal. The Labour Party has never been particularly identified with the traditions of the British Empire, but it has been very much identified with the maintenance of freedom, and, whenever you are concerned with planning, you have this problem of balancing freedom with the controls which are needed for planning. In this type of case, where profound problems of freedom are involved, as the noble Lord, Lord Walston, and others have pointed out, the human factor is one of extraordinary importance. One has to try to put oneself into the shoes of the men or women coming to these shores in the sort of circumstances which we all realise, and then being rejected, with that rejection being final.
It has always seemed to me that the administration of the Aliens Act, which 419 in general has been conducted in a reasonably liberal spirit, has been defective for the very reason that there is no effective method of appeal to anybody. From time to time, I have been able to bring difficulties in connection with students coming to this country to the attention of the Home Secretary, and I have received very sympathetic replies. In some cases, decisions given on the spot at the ports have been overruled. But that is an exceedingly difficult achievement to bring about, and, obviously, it is not possible for men and women of this kind, who have no Members of Parliament. It is all very well talking about Parliament's keeping a look-out and controlling this matter, but these people are just not in a position to get in touch with a Member of Parliament to put forward their case before they are sent back to the country from which they have come. In the meantime, a very real hurt has been administered. I might say to the noble Earl who has just resumed his seat that of course he is not right in saying that it is only questions of law that have been repealed. It is so long since he has practised at the Bar that I suppose he has forgotten that the Court of Appeal—
§ THE EARL OF SWINTON
There are many cases where it is laid down that there should be an appeal on law but not on fact.
§ LORD CHORLEY
It is quite true that in some cases—and this applies to your Lordships' House—the appeal is usually on a question of law. But when I sit at Quarter Sessions I am always having appeals from magistrates on matters of fact; in fact just as many, if not more, on fact, as on law. In the Court of Appeal itself that is frequently the case. So the argument is really that these are administrative tests, and I concede that it is more difficult to establish a system of appeal, particularly a rather formal system of appeal such as is envisaged in this Amendment.
So far as I am concerned, if the Government are prepared to meet us half way I shall be very happy to discuss some method by which the decision of the officer at the port of entry is not final and there is some kind of administrative appeal, provided that it is of a 420 kind which can in fact be achieved and which does not depend upon getting some Member of Parliament, some professor in a university, or somebody of that kind, to intercede on your behalf. Possibly the chairman of a tribunal of this kind could be empowered to grant an application to appeal, and he might see the case and say: "It is the sort of case which should be looked at a little further. It should come before myself and the two or three assessors who are sitting with me." That is important, and one of the valuable qualities of some kind of appeal is that by that means a pattern is laid down for aliens officers and officials of that kind to follow.
The noble and learned Viscount knows much better than I that one of the most valuable things a court of appeal does is not just dealing with the appeal which comes before it, but establishing a set of precedents which enable the judges below, or even the administrators below, to see their way through the thickets and through the difficulties which this type of legislation inevitably brings about. I submit again, for that reason, that it would be very valuable if there could be some kind of system by which a man who had been, as it were, thrust away from the doors of this country, could have his case looked at again before he was finally rejected.
§ 4.10 p.m.
§ THE LORD CHANCELLOR
I think this is an important point. It is probably the most important section of Amendments which we have to discuss. Therefore I am not at all surprised that although, as the noble Lord, Lord Silkin, said, it has been discussed at length in the House below, noble Lords have wanted it brought up again. It raises the serious general point which has been exemplified by the speeches in this debate, that to-day, when the operations of government come increasingly to affect our daily lives, there is a constant conflict between, on the one side, carrying out these operations efficiently and practically—and that is the point that was so well emphasised, if I may say so, by my noble friend Lord Milverton—and, on the other side, the fear, which is a very human fear, that the decisions will be arbitrary or capricious in the excise of power. I have, naturally and professionally, a great sympathy with the first 421 point of view; but after serious consideration—and I hope noble Lords will believe me on that point—I do not think that it applies here.
The first point that I wish to make is one of principle, which was obviously in the minds of my noble friends Lord Derwent and Lord Swinton. The control of immigration from the Commonwealth, with whatever reluctance and regret we may view the necessity, is essentially a policy matter, and these draft instructions, which on the whole have been well received as a liberal document, lay down the methods by which that policy is to be carried out. Those who are charged by the Bill with the function of implementing that policy will be executing the policy of the Secretary of State. They will do so in accordance with these instructions; and, having gone through the instructions many times, I think that, if your Lordships look at them again—look at paragraph 6, paragraph 12 dealing with students, paragraph 25 or paragraph 34—your Lordships will see that the instructions are that the immigration officer should deal with each of the problems in a reasonable and sympathetic way. To take the first one that the noble Lord, Lord Silkin, mentioned, on entry certificates, the paragraph 4 to which he referred says:Holders of such certificates will be refused admission only in the circumstances described in paragraphs 39 to 42…"—and these are medical grounds, criminal records, grounds of security and having been the subject of a deportation order.
The immigration officers will carry the policy out in accordance with these instructions. But what is quite wrong is this. I go further than my noble friend Lord Swinton: I say that this goes beyond a question of fact. This is an attempt to set up a system of judicial appeal with regard to policy. Judicial appeal cannot, and should not, concern itself with policy, and an attempt to set one up to deal with what are essentially policy matters produces inescapable dilemmas. If the appeal system, however it is constituted, could not concern itself with policy—that is, with the categories of persons to be refused admission—it would, in many cases, serve no useful purpose, since most refusals of admission will be in respect of people not entitled to admission under the policy.
422 If it did concern itself with policy (and in practice it would be greatly tempted to do so), it would make it impossible for the Secretary of State to discharge his responsibilities to Parliament. The Secretary of State is responsible for the policy expressed in the Bill, for the operative instructions he issues to his officers, and for the manner in which those officers carry out those instructions. My right honourable friend the Home Secretary and his colleagues in another place, and I myself and my colleagues in your Lordships' House, will always be ready to answer for the system of control as set out in the Bill and for the way in which it is carried out.
I think it was the noble Lord, Lord Chorley, who said that these people would not be represented in this House. I have been Home Secretary for three years, and I can tell your Lordships without any equivocation at all that the fact that aliens are not represented in the House did not prevent my answering in another place very many questions indeed connected with the admission of aliens—because, fortunately, in our Parliament there are a great number of public-spirited people of all Parties who are anxious to see whether the system of administration is a good one and of a high standard, irrespective of their constituency boundaries.
§ LORD CHORLEY
I wonder whether the noble and learned Viscount perhaps slightly misunderstood my point, which was the difficulty in which a man is placed. He is sent back and then he has to find somebody, and by then it is too late to be effective.
§ THE LORD CHANCELLOR
I am coming to that point. The noble Lord made the point, or somebody did, with which I have just dealt, and I have given the answer to it. But I wanted your Lordships to have an authoritative, nonpolitical opinion on this issue of principle, and I took the opinion of my late noble friend, former Master of the Rolls, Lord Greene, who I think everyone will agree was a very great lawyer and a great judge. In dealing with a question of requisition, Lord Greene said:It has been decided as clearly as anything can be decided that where a regulation of this kind commits to an executive authority the decision of what is necessary or expedient and 423 that authority makes a decision, it is not competent to the courts to investigate the grounds of or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so, it would mean that the courts would be made responsible for carrying on the executive government of this country. On these important matters Parliament, which authorises this regulation, commits to the Executive discretion to decide, and with that discretion, if bona fide exercised, no court can interfere.Now that is the position here. What is really sought for—and, if it is to be of any effect at all, it is bound to have this result—is that this tribunal should, to a greater or less extent, usurp the functions of my right honourable friend; and that, I think, is intolerable.
§ BARONESS WOOTTON OF ABINGER
Would the noble and learned Viscount forgive me if I ask whether he could explain to us how the decisions as to the application of the Instructions will be decisions of policy—as, for instance, the decision which would have to be given as to whether a person is or is not a legal wife, and as to whether a person is or is not intending to pursue a course of study occupying a substantial part of his time? We appreciate the distinction between a policy decision and a decision of that kind.
§ THE LORD CHANCELLOR
I am sure that the noble Baroness has read the Draft Instructions. May I ask her, with all the respect in the world, to read them again? Because I think that the difficulty the noble Baroness has will then disappear. Let me take paragraph 12 of the Draft Instructions:The time that a student should be required to devote to his studies cannot be precisely defined. For example, those taking degree or post-graduate courses may spend little time in attendance at lectures, and much time in individual study. In general, it may be taken as a working rule that a student is to be regarded as devoting 'a substantial part' of his time to his studies if he spends at least 15 hours a week in the prescribed study of a single subject or related subjects. The fact that a student wishes to engage in paid part-time or vacational employment in ordar to finance his studies is not a bar to his admission as a student.Than, paragraph 13 goes on to say:…it may well not be possible to establish precisely how many hours a week the student will devote to his studies; and the student should be admitted…if the Immigration Officer is satisfied that his principal object in coming to the United Kingdom is to study, and not to obtain employment…424 There is the policy, quite clearly laid down.
It is the same with regard to permanent association. It is laid down that even if there is not a formal marriage, if the immigration officer thinks there is a permanent association, he is to let the lady in. These are the instructions as to how the policy should be carried out. They are not laying down the law and making this an absolute, overwhelming condition. That is the fallacy which has come from noble Lords and Ladies opposite. I say again that, when we are dealing with policy, it is not only the tradition but also the essential part of the working of this country that the person responsible for the carrying out of policy for the Executive must be responsible to Parliament and answerable to Parliament.
I come to another point that has been made. It has been suggested by the noble Lords opposite that the appellate machinery would be required only in a relatively small, perhaps almost marginal sector, where the immigration officer's instructions are not positively mandatory and therefore he exercises a genuinely discriminatory function. I could make the point that, if that were so, this would seem a very elaborate machinery to deal with so small a point; but I am not going to take the point because I do not think that that is how it would come out. Experience in other fields shows that people are very likely to appeal when they have nothing to lose by doing so, regardless of the extreme improbability of success in a great many cases.
Let me take the simplest type of case that could arise under the Bill, that of a Commonwealth citizen obviously, perhaps admittedly, coming here for employment but not in possession of the necessary voucher. Assuming that the person was not eligible to come in under any other head of policy, the duty of the immigration officer would be to refuse him admission. There is here no issue that is justiciable on appeal. But if there were appeal machinery this fact would not dater the dissatisfied citizen from appealing. He would want to raise purely policy issues; maybe that there ought not to be any control, or that he ought not to have been refused the voucher for which he applied, or that 425 if only he were let in he would soon find work despite not having a voucher, or that although he had not properly provided himself he ought still to be let in because life was difficult where he had come from. These are not issues of which a tribunal could take cognizance without trenching on the Secretary of State's and the Minister of Labour's spheres of responsibility, but it would be difficult in the extreme to explain to the disgruntled would-be appellant, who would probably end with the conviction that the whole appeal system was a farce.
The noble Lord said that there is no other method of help open to the immigrant. I want to make it clear that the immigrant is not held incommunicado. He can make representations to the Home Office against refusal. A person refused permission can telephone friends here, if he has any—and probably he has—or the official representative of the territory from which he had come. If anyone expresses the intention of making representations on his behalf, either at the port or at the Home Office, his case can be delayed for a reasonable time while the representations are being considered. The immigration officer always can, and in difficult or borderline cases would, consult his superiors. No-one is ever refused admission on the authority of an officer of basic rank. The authority of a chief immigration officer is required for that. Difficult cases are referred to the Ministers. And I can tell your Lordships that those of us who have had experience of administering the Aliens Order, know that such representations are often made in circumstances of great urgency and at—I will not say unreasonable, but unusual hours.
I base my recommendations to your Lordships on a point of principle. But, as my noble friends have pointed out, there are also immense practical difficulties—and they really are daunting. I do not think that I should be dealing with the subject adequately if I did not give your Lordships an idea of these difficulties. The potential number of appeals; the fact that they would arise more or less simultaneously at different arrival ports; the need for rapid disposal; all these factors would make it impossible to operate with one tribunal; there would have to be several. And, 426 as noble Lords have pointed out—although they gave an answer to this point—the decisions might be different.
One cannot sweep away the other difficulties, however. Where would the appellants be held while their cases were being disposed of? Detention rooms at the ports are far too small for the likely numbers, and in any event are not suitable for detention that lasts very long. Police cells are no better. To use the overcrowded prisons for such a purpose seems out of the question. There would he pressure for intending immigrants to be allowed to be at large. But that is the matter at issue. In that case, he would have obtained the permission and possession of his place, which, of course, is traditionally nine points of the law; and if the appeal went against him, then he would raise the difficulty that he had settled down and that it was now far too late to deal with the position.
§ LORD OGMORE
May I ask what is the positon under the Bill? Presumably there will be a few days' delay anyway, because these people cannot be suddenly put on an aircraft that is not there or on ships that have sailed. There must be a delay. Is it not, in fact, the responsibility of the aircraft or steamship company to deal with these people, as they do with aliens?
§ THE LORD CHANCELLOR
I do not think that there is any possible comparison between the delay while the sort of inquiry and reference to the Home Office that I have described is made and the delay that would take place before the case would reach an appeal tribunal. I would say to the noble Lord that the essence of the control scheme is that a decision should be taken at the port and that, except in unusual cases, where the immigration officer's decision was made subject to a time condition, the Commonwealth citizen should be bothered no more by supervision once clear of the port. The Amendment deals not only with a refusal to admit, but also with a decision to admit on conditions. I do not see why that is necessary, because there is ample time, once the man has been admitted, for him to make his representations to the Secretary of State.
I hope that this Amendment will not be pressed. I am quite sure that it would come between Ministers and their 427 responsibility to Parliament; it would prove frustrating in its exercise, and would be attended by great practical difficulties which, in their nature, could not be easily overcome. I know that it is not right (and therefore I will not do it) to quote words that were said by a very distinguished holder of the office to which I have referred, but perhaps I may put it this way. I should like any of your Lordships who is doubtful about the attitude of mind of immigration officers to look again (your Lordships have probably read it before) at what was said in this regard, because I am glad to find that I am not alone in haying a very high opinion of immigration officers. I should also like you to look at what I said about the responsibility of the Home Secretary.
The noble Lord, Lord Ogmore, raised some practical difficulties about immigration officers. I can assure him that we have considered these. We believe that they can be obviated, first of all, by more immigration officers—which is allowed for—and secondly, by the special method of handling. Then, thirdly, the different categories of immigrants can be observed on the passport and arrangements can be made. We do not share the noble Lord's pessimism on that point. I would ask your Lordships to remember the system of vouchers, the system of entry certificates and, above all, the liberal, humane and sympathetic spirit which is seen on every page of these Draft Instructions. We have had a full discussion, and I must emphatically advise your Lordships against accepting this Amendment.
§ 4.33 p.m.
§ LORD SILKIN
I am afraid that the noble and learned Viscount has not convinced me, although I do not know whether he has convinced any of my noble friends. I would say, first of ail, that this is not an issue as to whether or not the immigration officers are trustworthy and reliable. I have great confidence that they will do their job to the best of their ability. Those of us who have had experience, not of immigration officers, but of Customs officers, who are in much the same category, will agree that, on the whole, they are a sympathetic body of men who do their job to the best of their ability. This Amend- 428 ment is not moved because of any lack of confidence in their ability or their integrity. I am happy to agree with the noble and learned Viscount at any rate on his statement to that effect.
However, I disagree as to the large number of appeals that will arise. After all, we are putting up a substantial barrier against people coming here. They will not come on the off-chance. I am of course, speaking of the large majority of immigrants. The fares will be considerable and will be a heavy burden on the proposed immigrant, possibly constituting the savings of many years. I am sure that this fact, coupled with the knowledge that there is a doubt as to their admission, would be a considerable deterrent. Those categories that will come in as a matter of course (although the instructions to the immigration officers are that even these may have conditions imposed upon them) will come with a certain degree of assurance that they will be admitted. I may say, in passing, that if the Lord Chancellor were prepared to accent this Amendment with the deletion of the right of anneal against conditions. I might be prepared to do a deal with him; but I gather from what he has said that he is not so willing. So that I think, on the whole, if we were to have an appeal, there ought to be an anneal against the imposition of conditions which an immigrant might regard as unreasonable.
I want to deal with some of the objections raised to the Amendment. The first is that there will he large numbers of immigrants and that every one will appeal. For the reasons that I have given I believe that the Bill will mean a natural reduction in the number of people coming to this country—and the purpose of the Bill is that there shall he this reduction. I am certain that not only will there he a deterrent on the score of expense, but there will he deterrents in the countries from which the proposed immigrants would be coming. They will no doubt be given advice as to what are the chances of their admission. We can rest assured that a considerable number of people who would have come here will be deterred by the passage of the Bill and by the advice they will be given before they leave, and that those who come will be the people who feel they have 429 reasonable chance of admission under the terms of the Bill. There will be questions as to whether a person is a skilled worker; and there may be some argument about that. But I think it would be mostly the student, the skilled worker, and the dependant, the wife, who would want to appeal. I cannot imagine that their numbers will be as great as is supposed.
An objection was put forward in regard to the way we should deal with appellants, pending the hearing of their appeal. If it is right that they should have a right of appeal, then it is our business to ensure that the facilities are provided for their detention while they are waiting for their appeal to be heard; and it is our business to ensure that that period should not be too long. If it is justice to give people an appeal (and I will deal with that in a moment) we must not deprive them of that justice merely because we have not provided the facilities for their stay here until their appeal is heard. The last argument we should put forward to our own fellow citizens, and to members of the Commonwealth is that we cannot give them justice because we cannot 'provide proper facilities to ensure that justice is done. I feel that this argument—the noble and learned Viscount did not seriously put it forward, but other noble Lords did—is quite unworthy.
Before I dispose of the general arguments put forward, I should like to say a word on what was said by the noble Earl, Lord Swinton. He drew an analogy between cases where there was an appeal on law and those where there was an appeal on fact. He said that most of these appeals would be on fact, and that there is no appeal in this country against decisions 'based on fact. He is not right. The noble Earl shakes his head, but it will be within the recollection of everybody—
§ THE EARL OF SWINTON
What I said was that I thought the whole analogy of the law courts was entirely wrong, for the reason which I think my 'noble and learned friend the Lord Chancellor accepted: that this was a matter of ministerial responsibility on which there could not be any appeal. I said, 'incidentally, that there were quite a number of cases where there was an appeal in the courts, but that it was an appeal only 430 on law and not on fact. The gravamen of my argument was that this was not a proper subject for appeal at all.
§ LORD SILKIN
I do not want to be unfriendly or unkindly, because I have a high regard for the noble Earl. I do not want 'to have any dispute with him about this, but if he will do me the honour to-morrow morning of looking at what he said, I think he will find I was justified in assuming that he was raising a distinction between questions of fact and questions of law. But I will not pursue that aspect.
I want to come now to the real point, which is the point the noble and learned Viscount made; that these are decisions which the immigration officer makes on policy, and that policy is a matter for the Home Secretary. Of course, it is not for the immigration officer to decide policy; nor would it be for the appeal tribunal to decide policy. That is not suggested. The policy is laid down by the Home Office in the Instructions which they issue to their immigration officers. That policy must be accepted, and any decision of the appeal tribunal would be within the framework of that policy. But I think I am right in drawing an analogy on the general question of appeals. If they are based on the law, it is for those responsible for making the law to see that that law is made. But, after that, the interpretation of the law is not left to the makers of the law; the appeal is to the courts, who interpret whether a thing is in accordance with the law.
What we are asking is that it should be for the tribunal to decide whether a particular refusal is within the framework of the policy laid down by the Minister or not. One could say, "That is a proper matter for the Minister himself to decide." I should not violently quarrel with that view, but I think that is not the doctrine we have accepted throughout our general administration; that would be an appeal from Cæsar unto Caesar. The real issue is not on what is the policy. The real issue is: Is this refusal to admit within the framework of the policy, or is it not? In all sorts of cases that is a matter which is left to a tribunal.
I would draw the attention of the noble and learned Viscount to the Franks Committee. That Committee decided 431 that in a great many cases where there was a discretionary bar on the part of an individual or a body there should be an appeal. It is true that in many cases the appeal is to the Minister—I make the noble and learned Viscount a present of that. But the point is that there is an appeal—an informal appeal. Take the case of a refusal on planning grounds. The local planning authority are certainly familiar with the policy of the Government, and they do their best to act in accordance with that policy. But there may be differences as to whether the particular application they have refused comes within the framework of the policy of the Government, and there is a right of appeal. I can see no reason at all why immigrants should not, in the same way, have a right of appeal to decide whether a refusal comes within the policy of the Government or not.
There are a large number of cases where there can be doubt. I will not enumerate them again, but right through these Instructions, in almost every paragraph (and I have noted them), there is the possibility of an immigration officer coming to a decision—perhaps because he has not understood the facts correctly, or was working under pressure, or had not understood the immigrant, or for some other reason—which is not in accordance with the policy of the Home Secretary. I would say that the immigrant ought to be given the opportunity of presenting his case and of making quite sure that all the facts are known
§ to the tribunal, so that they can decide whether or not his particular case comes within the policy laid down by the Home Secretary.
§ I would conclude the appeal to the noble and learned Viscount to give further consideration to this matter by mentioning another ground altogether—one that I touched on in my opening remarks. I feel strongly that we ought to do all we can, we ought to lean over backwards, to satisfy the members of the Commonwealth that there will be no arbitrary refusal of admission and, so far as humanly possible, no possibility of an arbitrary refusal. There will probably have to be more than one tribunal. I never contemplated that one tribunal could do the job. Possibly there might even have to be one at each port of entry, or at a number of groups of ports of entry, so that the time taken for hearing would not be more than a matter of days. I think we ought to do that in order to prove to the members of the Commonwealth that, before we refuse admission to anybody who comes within the scope of the policy laid down, he will have every possible chance of putting his case. Because of that, and because we think it is a matter of natural justice, I am going to ask my noble friends to press this Amendment to a Division.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided: Contents, 30; Not-Contents, 55.433
|Airedale, L.||Kenswood, L.||Rea, L.|
|Alexander of Hillsborough, V.||Kilbracken, L.||Shepherd, L.|
|Amulree, L.||Killearn, L.||Silkin, L.|
|Amwell, L.||Lawson, L.||Stonham, L.|
|Archibald, L.||Lindgren, L.||Summerskill, B.|
|Burden, L. [Teller.]||Listowel, E.||Walston, L.|
|Colwyn, L.||Longford, E.||Williams, L.|
|Crook, L.||Lucan, E. [Teller.]||Williams of Barnburgh, L.|
|Hall, V.||Meston, L.||Wise, L.|
|Henderson, L.||Ogmore, L.||Wootton of Abinger, B|
|Ailwyn, L.||Buckinghamshire, E.||Devonshire, D.|
|Albemarle, E.||Carrington, L.||Dudley, L.|
|Aldington, L.||Chesham, L.||Dynevor, L.|
|Ampthill, L.||Cholmondeley, M.||Effingham, E.|
|Atholl, D.||Colville of Culross, V.||Forster of Harraby, L.|
|Auckland, L.||Conesford, L||Goschen, V.|
|Bathurst, E.||Croft, L.||Gosford, E.|
|Bossom, L.||Denham, L.||Grenfell, L.|
|Boston, L.||Derwent, L.||Hailsham, V. (L. President.)|
|Hampton, L.||Liverpool, L. Bp.||St. Oswald, L. [Teller.]|
|Hastings, L.||MacAndrew, L.||Saltoun, L.|
|Hemingford, L.||Margesson, V.||Somers, L.|
|Horsbrugh, B.||Massereene and Ferrard, V.||Spens, L.|
|Howard of Glossop, L.||Mills, L.||Stonehaven, V.|
|Howe, E.||Milverton, L.||Strang, L.|
|Iddesleigh, E.||Morrison, L.||Swinton, E.|
|Jellicoe, E.||Newall, L.||Teviot, L.|
|Kilmuir, V. (L. Chancellor.)||Newton, L. [Teller.]||Teynham, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ 4.59 p.m.
THE EARL OF LONGFORD moved, in subsection 13) (b), to leave out "substantial". The noble Earl said: It will be recalled that the Home Secretary in another place brought forward an Amendment, which was adopted and which made some provision for students. It was very shocking to many of us that no provision was made originally in the Bill, but, at any rate, some improvement was made in that respect after the Committee stage in another place. We consider, however, that the present provision is ambiguous, to say the least, and therefore in fact likely to be inadequate. I think I am in order in quoting what was said by the Minister in another place. He said:
The principle to which we wish to give expression in the Amendment, and also in the detailed instructions to immigration officers, is that no Commonwealth citizen should be hindered from coming to this country for the purpose of a genuine course of study.
§ Certainly we accept that principle.
§ We regard this Bill, and I think all of us regard it, as very evil, but certainly that mitigation of the Bill, as started in another place, is entirely welcome. But the question is whether the Bill as it now stands gives effect to what is, in this connection at any rate, the agreed purpose. The Government apparently have set out to exempt students who are coming here for the purpose of a genuine course of study, but that phrase "genuine course of study" is not made any clearer by later glosses. In the same passage the Home Secretary went on to say that the student's main concern should be study, and therefore the "genuine purpose" changes into the "main concern". And a little later the immigration officer, we are told by the Home Secretary, has to he satisfied that that is the basic purpose. So we have at least three words used there in addition to this word "substantial" which exists in the Bill: 434 we have "genuine", "main" and "basic".
§ Then in the Instructions themselves in paragraph 13 we are told that the immigration officer has to be satisfied that the principal object in coming to the United Kingdom is to study. At the very least the immigration officer studying these various words—substantial, genuine, main, basic and principal—may find it extremely difficult to know who is or who is not to be admitted. To be fair, the Instructions inform the immigration officer that the student is to be regarded as devoting a substantial part of his time to studies if he spends at least fifteen hours a week in the prescribed study. That is the clearest thing said about that. But the other words are extremely vague. I think one would conclude from what is said about the necessity for the principal object being study, that it would be very doubtful whether someone who had as his ultimate object that of study but in the meantime was mainly concerned with earning his living would be admitted.
Perhaps the noble Viscount will permit me to take the two Amendments under the names of myself and Lady Wootton of Abinger and Lord Lucan together. In another place the Home Secretary went on to say:
It is not enough for a student to say that he will take evening classes for a few hours a week or undertake a correspondence course. He must devote a substantial part of his time to study.
That seems to assume that someone who took a correspondence course would not be devoting a substantial part of his time to study, and in our view it would be perfectly possible to devote a substantial and important part of one's time to study if one took the right sort of correspondence course. Therefore, it seems to us impossible for any immigration officer to interpret this phrase, "a substantial part of his time" in any way which achieves the object of letting in
all bona-fide students, and we feel that that phrase, in view of its earlier glosses, should be left out altogether.
§ We also consider that a student taking a genuine correspondence course in connection with a recognised educational institution should be allowed in because he is a genuine student or can be a genuine student. For those reasons I should like to move the first Amendment and couple with it the second. We should like to leave out the word "substantial" and enable the admission of students who are about to take a recognised correspondence course. I beg to move.
Page 2, line 48, leave out ("substantial").— (The Earl of Longford.)
§ THE LORD CHANCELLOR
I wonder whether it would be of general advantage if I spoke rather in an explanatory way about the position as I see it, and then noble Lords opposite, if they do not agree with what I have said, can of course say so and invoke the usual consequences. I want first of all to deal with the noble Earl's point on the vagueness, because I want what we mean to be quite clear to everyone. The effect of leaving out "substantial" would be that admission would be granted to anyone who satisfied the immigration officer that he was proposing to attend a course of study for part of his time, and part of his time would presumably include a course lasting only two or three hours a week in the evening. I want to make it quite clear that the Government are anxious to encourage people to come here from the Commonwealth for the purpose of study and to say that the Government have already made generous arrangements to this end. The number of overseas students for the academic year 1960–61 amounted to 35,729; that is including universities, technical colleges, Inns of Court, teacher training, nursing, practical training and private and other colleges. That is a great figure and we are very glad that the figure is so high. That is one point.
But the main object of the Bill is to control immigration on a basis of employment, and it therefore provides that no one is to have the assurance of admission in coming for work unless 436 with an employment voucher issued by the Ministry of Labour. Your Lordships will appreciate it would be impossible to work the voucher scheme fairly or effectively if anyone could avoid the need for a voucher by saying he hoped to study a few hours a week in his spare time. Those admitted with vouchers will, of course, be free to study in the evenings, as many Commonwealth citizens here already do.
The noble Earl referred in passing to paragraphs 12 and 13 of the Draft Instructions. I myself quoted them on the last Amendment. I want to take the first point, and that is in the middle of paragraph 12 at the top of page 5:In general, it may be taken as a working rule that a student is to be regarded as devoting 'a substantial part' of his time to his studies if he spends at least 15 hours a week in the prescribed study of a single subject or related subjects. The fact that a student wishes to engage in paid part-time or vacational employment in order to finance his studies is not a bar to his admission as a student.Your Lordships will remember that I quoted, and indeed the noble Earl quoted, the essential part of paragraph 13, which after saying that it may not be possible to establish precisely the number of hours a week, goes on to say:…the student should be admitted (even though it is not possible to establish the precise number of hours) if the immigration officer is satisfied that his principal object in coming to the United Kingdom is to study, and not to obtain employment for which he would otherwise need a Ministry of Labour voucher.It has been said that fifteen hours a week is too much and that is why I have quoted those paragraphs, and indeed my right honourable friend has made quite clear, as do the paragraphs, that the test will not be applied too rigidly, but it is a working rule for the guidance of immigration officers and overseas posts. But I repeat that the vital question is not the exact period of study, but whether the immigrant's principal purpose is to come here to study.
There was some argument raised in another place that there should be a provision to admit as students—and I quote merely for the purpose of clarifying the argument:those who emigrate primarily to work in order to earn their living, but also with a view to attending evening courses if they can.437 While the Government are anxious to welcome genuine students, they have also to bear in mind that the control scheme is based on the employment voucher; and it is therefore right that those coining for full-time work should be required to obtain vouchers.
The same applies to those who come here with the intention of working for a year or two and then studying when they have saved some money. I think that was the case the noble Earl mentioned. We say that such a person, coming in in order to work and earn the money, comes in as someone seeking for work and must be within the voucher scheme. I would remind your Lordships that anyone with a special skill or a definite offer of employment (this may well apply to many people coming here, if I may use the old phrase, "to better themselves"), will be able to obtain a voucher without difficulty. The Government have gone a long way to assuring the admission of all genuine students, and they cannot go further without opening the door to complete frustration of the voucher scheme.
My right honourable friend gave the assurance that the fifteen hours a week test will not be applied with any undue rigidity, either at the ports or where people apply for entry certificates. This assurance I can repeat, provided it is made clear that those immigrants whose principal purpose in coming here is to take employment cannot reasonably expect to be admitted as students. So far as I can see, the difference between the noble Earl and myself is that he would admit people who come to work but who say "I am going to do two or three hours work a week in the evening; and he would also admit those who come to work in order to save money and, later on, take a course. I want to make it quite clear that we cannot go so far as that, because in our view the principal purpose of these people is to come in to work. That is the difference between us, and I am afraid that on that point I must stand.
§ 5.14 p.m.
§ THE EARL OF LONGFORD
Before we decide to vote or not to vote, or to negative this Amendment, or do what we will, I should like to put the difference between myself and the noble Viscount, art any rate, in my own words. He 438 assumes that I have in mind a class of person who may be able or willing to work only two or three hours a week. I think that would be pitching it rather low. But there is a lot in intermediate stages between working 2 or 3 hours and working 15 hours a week. Presumably, 15 hours a week means 3 hours a night, 5 nights a week. If a man is going to do all that work at a college (and I assume that he has got to do his 15 hours at the college, though what he does at the week-ends would hardly be taken into account by the immigration officer), he will have to be extremely energetic if he is going to combine his studies with any work at all.
Therefore, I should like to ask the noble Viscount whether he does not agree that one can be a genuine part-time student. That is the point I should like clarified, if possible. The Home Secretary said that no-one should be hindered from coming to this country for the purpose of a genuine course of study. That was a phrase he used again, later in the same speech: that the study must be genuine. It seems to me that one can be engaged in genuine part-time study and do a lot less than 15 hours a week at a college. Therefore, I must ask the noble Viscount whether he leaves out genuine part-time students.
§ THE LORD CHANCELLOR
I do not think so. I think it is easier to take the Draft Instructions. If the noble Earl will look again at the top of page 5, he will there see:In general, it may be taken as a working rule that a student is to be regarded as devoting a substantial part' of his time to his studies if he spends at least 15 hours a week in the prescribed study of a single subject or related subjects'I have quoted that paragraph again to point out the phrase "prescribed study". The 15 hours, which is taken as a general figure, is to be in a prescribed study. After all, if one compares 15 hours with the number of hours that people who have devoted themselves to politics work, it is something like, I suppose, one-eighth of the working period in the week to which we are accustomed—certainly not more than one-sixth. Therefore, I do not think that one can take a starting point of 15 hours a week as ruling out part-time work, especially when paragraph 13 goes on to say that 439 one is not to stick to it rigidly—that the figure might be a 12, or some other figure, so long as it is a prescribed course of study.
I hope that the noble Earl will acquit me of discourtesy. By sheer forgetfulness I forgot that he had mentioned his second Amendment and wanted it discussed at the same time. I hope he will forgive me. So far as I know, the Minister of Education does not operate any scheme for recognising institutions giving correspondence courses. The Minister recognises only institutions at which students attend for their instruction. That is a difficulty in the way of the second Amendment. I do not want to deal with it on that relatively minor aspect, however. I do not deny that Commonwealth citizens take correspondence courses and may benefit from so doing. But as I have already explained, there are insuperable objections to admitting as students people who take only a correspondence course, because anyone who proposes to take only a correspondence course and to support himself by full-time employment must be dealt with as a person requiring a voucher: and the argument which I have already deployed applies with even greater force.
§ THE EARL OF LONGFORD
I should like to thank the noble Viscount for his reply. I am afraid that I am, as I think others will be, most dissatisfied with this position; because, so far as I can see, a number of students who are now studying are bound to be shut out under the explanation given by the noble Viscount. I do not know how many will be, but certainly a number will be, and I think that is most retrograde. I realise that, in a sense, that is part of the Government's intention; it is part of the total policy in the mind of the Government. That is why we deplore the total policy. In the circumstances, I do not know that we shall carry this matter to a Division, but I should not like the noble Viscount to feel that we are in the least happy with the provision.
§ On Question, Amendment negatived.
THE CHAIRMAN OF COMMITTEES (LORD MERTHYR)
Your Lordships will notice that if Amendment No. 5 is agreed to, Amendment No. 6 cannot be called.
440 Consequently, I apprehend that it would be convenient to debate the two Amendments together. After the debate, the first Question I propose to put is: That the words "if it appears" be left out. I shall then call Amendment No. 6, and, if applicable, I shall put the Question, "That the remaining words of paragraph (a) be left out". I hope this will be a convenient course to the Committee, in view of the fact that it seems to me that your Lordships would not wish to pass both of these Amendments.
§ BARONESS WOOTTON OF ABINGER
I think the intention of both the next Amendments is substantially the same. As the Bill now stands, power is given to the immigration officer to exclude a person who he thinks is suffering from a mental disorder or who is otherwise unsuitable to be admitted for medical reasons. No provision is included in the Bill that the immigration officer must arrive at this conclusion in the light of medical evidence. Apparently, he is held to be able to decide entirely on his own initiative whether a person is suffering from mental disorder or whether it is undesirable to admit him for medical reasons. The purpose of these two Amendments is to ensure that this decision, which is essentially a medical decision, should be made not merely in the light of medical evidence, but by a duly qualified medical person. I beg to move.
Page 3, line 13, leave out paragraph (a).—(Baroness Wootton of Abinger.)
§ THE EARL OF LISTOWEL
Before the noble and learned Viscount replies, I should like to amplify the arguments used by my noble friend in moving this Amendment. It is clear from the Instructions that my noble friend's point about the position of the immigration officer is a perfectly sound point, because the Instructions provide that the immigration officer should consult a medical officer, but do not provide that a medical officer must be consulted. The relevant passage in the Instructions appears on page 10, paragraph 39:The Immigration Officer should normally arrange with the Medical Inspector for the examination of the holders of Ministry of Labour vouchers and other Commonwealth citizens coming for settlement in the United Kingdom. Visitors who mention health, or 441 the prospect of medical treatment, as among the reasons for their visit, and any persons who appear not to be in good health or appear mentally or physically abnormal, should also normally be referred to the Medical Inspector. Where a Medical Inspector certifies that it is undesirable for a person to be admitted for medical reasons or because he is suffering from mental disorder, the Immigration Officer should refuse admission.What the Instructions say, therefore, is that this should normally be done, but they do not say that it must be done, or even that it should be done in every case. I think my noble friend's point is that this is not a matter that should in any circumstances at all be left to the sole discretion of an immigration officer, but that the question of defect, either in physical or mental health, is one that must be referred to a medical officer. That, I think, is the substance of the second of these two Amendments.
May I deal with the first, which perhaps covers rather a wider field than the second, and also raises other issues? Is it fair that somebody who comes here with a Ministry of Labour voucher to work, who is suffering, say, from some mental ailment that he thinks is curable, should be kept out because of that ailment? In the case of somebody who is admitted with private means—this, again, is in the Instructions—he will be allowed in, in spite of his mental ailment, whenever he comes for treatment, provided that the immigration officer is satisfied that his means are sufficient to cover the cost of the treatment. Is it fair that somebody who has not got private means and who needs treatment should be placed in a different position from that of the person who comes with private means and needs treatment? And, of course, there are plenty of people who come in on vouchers from the Ministry of Labour, or who come in as students, who will be admitted, but who, nevertheless, will be under the National Health Service and will not be able to afford private medical treatment.
To me this seems to discriminate between those who can afford medical treatment in this country and those who cannot. I would particularly appeal to the noble and learned Viscount to consider the case of people who need mental treatment, because my own experience, from having lived in Africa for three years in what is the richest ex-British territory in Africa—much richer than 442 Jamaica and Trinidad, the richest of the territories of the West Indies—is that facilities for mental treatment are utterly inadequate. In Ghana there was one mental hospital for the whole of the country and one qualified psychiatrist. I do not believe that the conditions in the West Indies (although I do not know what the conditions are, because I have not had the opportunity of finding out) can be very much better than conditions in a comparatively wealthy country—wealthy as underdeveloped countries go —such as Ghana. It is extremely hard that we should keep people out who would otherwise be admitted, simply because they want mental treatment which they cannot get in their home country, treatment which they could get here. That is the most important reason for not retaining this paragraph in the Bill. I very much hope that the noble and learned Viscount will consider this matter before the next stage of the Bill.
§ LORD AMULREE
May I just say one word on this Amendment? I think it is a very dangerous precedent if an immigration officer is going to be permitted to say that an immigrant is suffering from some medical or mental illness, with no kind of medical advice at all. I am sure this is a very wrong step to be taken now. No doubt some of these officers are very experienced and may be able to spot whether an immigrant is mentally deranged; but I think it is a very bad thing that it should appear in a Bill that such an important decision may be made by a person who, apparently, will not be compelled to have a medical background to the decision he is going to take. I would therefore like to support the noble Baroness on this Amendment.
§ 5.30 p.m.
§ THE LORD CHANCELLOR
Might I first say one or two general words on the position, and then come to the point, which is really the subject of Amendment No. 6, which the noble Lord, Lord Amulree, has just stressed? In view of the discussions, and in view of the fact that the discussions were not completed in another place, I want to make it plain that immigration has not of itself constituted a threat to this country's health standards, or imposed a great burden on the Health Service. I take the opportunity of saying that, because 443 I think it is only fair to immigrants that it should be said. But, of course, that is no reason why, in the context of an immigration Statute, powers should not be taken to refuse individual immigrants admission on health grounds. Indeed, it was interesting that my noble friend Lord Colyton, who opposed the Bill as a whole, accepted that this power-should be taken.
I should now like to direct your Lordships' attention to the limitation of the power to refuse entry on medical grounds. The wording of Clause 2 makes clear that there is no power to refuse admission on medical grounds to wives, or children under sixteen, of persons already here or of those qualifying for admission, and no power to refuse admission on these grounds to returning residents. So we have gone quite far in that regard; and if anyone criticised us for going as far, I should reply that it was a question of balancing the interests of public health against the undesirability of separating near-relatives or denying readmission to people who had become established here.
Paragraph 39 of the Instructions to which the noble Earl referred indicates that the immigration officer will refer to a medical inspector persons (other than the exempted classes which I have just mentioned) who are coming here for permanent settlement, and also anyone he considers should be medically examined or any visitor who appears mentally or physically abnormal. The noble Earl was good enough to read paragraph 39, and I will not read it to your Lordships again. But the object of the examination is to identify persons whose condition might do two things: first, endanger the health of other persons in this country and, secondly, make them unable for medical reasons to support themselves here. If I may give examples of health grounds on which admission is regarded as undesirable, these are mental disorder, pulmonary tuberculosis, venereal disease, leprosy or trachoma. Among the physical conditions which might prevent the person concerned from supporting himself or his dependants, I would give as examples a crippling orthopedic disease or a serious ophthalmic disease which would require major medical treatment.
444 I assure the noble Earl that I am coming in a moment to the question of need for medical treatment, but first I want to say that the powers given by the Bill will be exercised in much the same way as the power of refusal under the Aliens Order which has been exercised for many years. While the Government are satisfied that the wording of the subsection must be in the general terms in which it has been drafted, the power will be used only in the type of case indicated above. I have just asked your Lordships to note that the wording of the First Schedule, as amended in another place, puts beyond doubt that a medical inspection by X-ray or other apparatus may be carried out by a radiographer or other qualified person at the request of the medical inspector.
I want now to deal with persons in need of urgent medical treatment. During the debate in another place, there was some suggestion that the power to refuse admission on medical grounds would be used to deny medical treatment to people in urgent need of it. I can give the assurance that if someone arrived in such a condition, having possibly been taken ill on the voyage, he would be allowed to remain in this country to undergo the necessary treatment. In such an emergency there would be no question of refusing entry because the cost of treatment might fall on the National Health Service.
I want to deal with the point that worried the noble Lord, Lord Amulree, which is really the subject of Amendment No. 6, because the purpose of that Amendment is to remove the power of the immigration officer to refuse admission on medical grounds without reference to a medical inspector. The Minister of State in another place made clear that this power would be used only in exceptional circumstances, and paragraph 39 of the White Paper shows that the normal procedure would be for the immigration officer to refer an immigrant to the medical inspector, and such inspectors would be appointed at all ports. There are two contingencies which led the Government to include the present power in the Bill. The first contingency is that the immigration officer might examine a person in circumstances where the doctor who was most readily available was not a doctor who had been 445 appointed a medical inspector; for instance, on Atlantic routes, where the immigration officers conduct examinations during the crossing, it might be preferable to consult the ship's doctor who would not have been appointed a medical inspector, rather than wait until the passenger was examined after arrival in the United Kingdom. The immigration officer might similarly learn from a ship's doctor the medical condition of a seaman.
Another contingency, which would be covered by these powers, is where an immigration officer was examining passengers when a medical inspector was not immediately available, and a passenger was obviously mentally deranged. It can happen that a passenger is so mentally deranged that it is reasonable for the immigration officer to refuse admission straight away, and the alternative, of arranging for the person to be held until the medical inspector was available, might lead to delay in securing his return. I want to give the Committee as a whole the assurance that the power which the Amendment seeks to remove—that is, the power of the immigration officer acting alone—would be used only in such exceptional circumstances as I have tried to describe, but I think that it is necessary to meet these contingencies.
§ LORD AMULREE
If the power is to be used so extremely rarely, would it not be better if it were not there at all? If the power is going to be used so rarely, in such very exceptional cases, it would surely be preferable to have some kind of medical advice (and I do not insist upon the doctor being a medical inspector appointed under the Act), because one can have people showing signs of mental disease and mental confusion arising from all sorts of causes. Some of these disorders are purely temporary physical disorders which can be removed simply. I would far rather not see the power there at all, because if it is going to be used at all I am sure it will run into trouble.
§ THE LORD CHANCELLOR
I am afraid that I cannot go quite so far as that, though I think I have gone a considerable way in the second power. I do not think the noble Lord will have much complaint about the use of the 446 first power, of using the ship's medical officer. But what I will do is to draw the attention of my right honourable friend the Home Secretary to the feeling on that second point, and to what the noble Lard has said. I do not hold out any substantial hope in the matter, but I will of course certainly do that. The noble Lord, Lord Amulree, has put it very persuasively as a balancing matter. We think the scales are just tipped the other way, but I will certainly put it to my noble friend, although I do not want anyone to be under any misapprehension. I am not trying to prevent a Division by holding out hopes which have no real basis. However, I hope that, on the general point, what I have said has done something to explain the workings and to remove some fears.
§ LORD SILKIN
There are two things, I think, about which we on this side feel very keenly. The first is that nobody should be refused admission on medical grounds unless he has been seen by a medical officer. That seems to me only common sense. However it is done administratively, with all the difficulties which may occasionally be involved, we feel that it is almost axiomatic that refusal on medical grounds must be by a medical practitioner. The second point is the one which the noble and learned Viscount gave us about the practice in exceptional cases. I think that could be met, if the Government were willing, by an amendment of the Instructions. I myself think that two things would be needed. One is an amplification of the Instructions to the immigration officers to deal with cases in the way in which the noble and learned Viscount suggests they would be dealt with, and the other is some amendment of Clause 2, so that it is quite clear that, whether or not the immigration officer and the ship's medical officer see the immigrant, there can in any case be no refusal on medical grounds until after the medical inspector has seen the immigrant.
§ THE LORD CHANCELLOR
Would the noble Lord not allow the point about the doctor having seen the immigrant on the Atlantic run? It is a very convenient course.
§ LORD SILKIN
It should not be beyond the ingenuity of Her Majesty's Government to provide for that by some 447 amendment of the clause. I can quite see that that kind of case might arise; but in that event the immigrant will have been seen by a medical practitioner.
§ THE LORD CHANCELLOR
Yes, by a medical practitioner, but one who is not, of course, a medical inspector under the Instructions.
§ THE LORD CHANCELLOR
Well, if your Lordships will take it without commitment, I will see that my right honourable friend examines the matter, which your Lordships have put, if I may say so, very frankly and fully to me, and very practically. I should like my right honourable friend to consider it. If we cannot do anything, I will communicate with the noble Lord so that your Lordships can return to the charge at the next stage of the Bill.
§ BARONESS WOOTTON OF ABINGER
In view of that assurance, I beg your Lordships' leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.45 p.m.
§ THE EARL OF LUCAN moved, in subsection (4) (c), after "State" to insert: "on a certificate personally signed by him". The noble Earl said: This Amendment can be dealt with very shortly. It appeared to us that the words, "contrary to the interests of national security", constitute a very powerful weapon; a very large sledge-hammer to deal with a very small immigrant. Under the Bill as it stands, the immigration officer is empowered to act under paragraph (c) if he is told that it is the opinion of the Secretary of State that the man's admission would be "contrary to the interests of national security".
§ How does he know that it is the opinion of the Secretary of State? Somebody in Whitehall takes up the telephone, I suppose, rings the immigration officer, and says, "We have information that so-and-so, coming in by such-and-such a plane, is a dangerous person; that his entry would endanger national security". We believe that that procedure is open to a great deal of objection. To say, as is said in paragraph (c), "in the opinion of the Secretary of State", is 448 largely meaningless. We think that some meaning should be put into it, and that it should be openly admitted to be what it is—a very serious step to take against an intending immigrant. We therefore think that it should require a document signed personally by the Secretary of State. I beg to move.
Page 3, line 22, after ("State") insert ("on a certificate personally signed by him").—(The Earl of Lucan.)
§ THE LORD CHANCELLOR
The Bill at present gives a power to refuse all immigrants admission on security grounds, except those who are wives, children or returning residents. The effect of the Amendment would be to provide that the immigrant would be refused admission on these grounds only if the Secretary of State had personally given a certificate to that effect. Your Lordships will see that the present wording ensures that refusal on security grounds is not left to the discretion of the immigration officer. The noble Earl, Lord Lucan, said that, but it is quite clear from the words that are in sub-paragraph (c):if his admission would, in the opinion of the Secretary of State, be contrary to the interests of national security".Paragraph 41 of the White Paper, which deals with refusal on the grounds of security, also makes that point clear. The second sentence is:The immigration officer will receive notification of any persons who by decision of the Secretary of State are to be refused admission in the interests of national security".Then the wording goes on:If he has strong grounds for believing that the Secretary of State would reach such a decision in respect of any other Commonwealth citizen, instructions must be immediately sought from the Home Office".I should just like to pursue that for a moment or two, because the noble Earl's Amendment wants a certificate personally signed by the Secretary of State. First of all, there is the general consideration that a Minister must be trusted to carry out in a responsible fashion the powers conferred on him by Parliament, and he is answerable to Parliament for the way in which he discharges his responsibilities. I repeat what I said on an earlier Amendment: that that is not a mere turn of phrase.
449 This is a very sensitive and tender part of a Secretary of State's duty. It does not matter what his Party is.
I myself used to be tackled often on this point. My difficulty with regard to aliens was the position, which ten years ago was prevalent, of Communist forces getting hold of a harmless-seeming organisation with a beautiful name and using it as a cloak for Communist activities. People came into this country nominally to deal with the organisation with the harmless name but actually to deal with Communist matters. That was a difficult piece of administration to deal with. There are always those who think you go too far and those who think you do not go far enough. The reason I have mentioned this is that I want to assure the noble Earl that it is a matter on which Parliament is very sensitive, and it gets round very quickly that the Home Secretary has acted on security grounds, and he has to justify it. I happened to be clear in my own mind that I should not allow the bogus organisation, and the House of Commons on both sides was broadly sympathetic with me. Frankly, I do not think that putting in the requirement for a certificate will make much difference, because the Home Secretary, whoever he is and whatever Party is in power, will do his job conscientiously in this regard.
The second difficulty is the practical one which is likely to arise in certain emergency cases. Take, as an example, the case where an immigration officer, in the course of questioning, becomes satisfied that a prima facie case has been made out for refusal on security grounds. That is entirely a practical point. It happened with regard to aliens. In such a case, the officer would have to seek authority from the Home Office, and if admission were to be refused on these grounds, in the ordinary course the Secretary of State's authority would then be sought. But the Secretary of State himself may be out of London. He may be in the Isle of Man or in the Channel Islands, for which he is responsible—in my case, I was also responsible for Wales.
§ THE LORD CHANCELLOR
Timeo Danaos, et dona ferentes. The noble Earl 450 has given me a good gift, which illustrates my point clearly. In that case, the Secretary of State would have to be got on the telephone, and it would not be physically possible for a certificate to be sent and produced at the port at short notice. That is a real difficulty, if that is what the noble Earl has in mind. If the certificate has to be produced before an immigrant is sent back and he has to wait until the certificate is sent, he might have to be kept in detention until he missed a suitable boat or plane to take him back. On the other hand, if the certificate has not to be produced at the port, the mere fact that the Secretary of State has signed his name on a piece of paper, which the immigrant never sees, would be neither here nor there. What is important is that the decision should be taken promptly and that the Secretary of State should then be responsible for the decision to Parliament.
The noble Earl's humorous interjection reminds me of the famous case of one of my predecessors, Lord Haldane, who, before he became Lord Chancellor, Was at the War Office. The office of Secretary of State is one and indivisible, and there was a period when the Foreign Secretary, Sir Edward Grey, was abroad, and Lord Haldane was looking after that office as well. In his autobiography he tells with the greatest of pleasure how, in the morning, he wrote the most bitter letters to the Secretary of State for War on behalf of the Foreign Secretary and, in the evening, like Penelope with her web, wrote equally strong replies in the other direction. There are two points here. I do not think that the Amendment will make any difference to the care with which any Home Secretary of any Party will carry out his job, and I think that it would cause some practical difficulty if he were away and the action had to be taken at once.
§ THE EARL. OF LUCAN
I am grateful to the noble and learned Viscount for his reply. I agree that it would cause inconvenience to the encumbent of the office of Home Secretary if he were required to sign certificates which were never necessary. One thing the noble and learned Viscount said brought home to me vividly the useless nature of many of these immigration precautions. He 451 said that, in the course of interrogation of an immigrant, an immigration officer might discover things that would justify his rejecting the immigrant on the ground of national security.
§ THE LORD CHANCELLOR
This is important and I should not like the noble Earl to misunderstand me. I went on at once to say that he would then have to refer to the Home Office at once.
§ THE EARL OF LUCAN
I appreciate that, but the point in my mind is that if an immigrant betrayed in the course of the immigration officer's questioning that he was bent on disrupting or subverting the whole country and the British Commonwealth, he could not be a very high level agent: and I suspect that the effect of many of these precautions at the ports is that they keep the innocent out and are useless against the really dangerous. However, I propose to ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ LORD SILKIN
Would this not be a convenient moment at which to adjourn this debate? I understand that it has been agreed through the usual channels that we should stop at six o'clock, and some of us may want to say something on whether Clause 2 shall stand part of the Bill. I think it would be convenient to do that to-morrow rather than to try to do it in one minute.
§ THE LORD CHANCELLOR
Of course, I am very ready to meet the Opposition on this point. If they find it convenient, it will be convenient to me. If I may, I beg to move that the House do now resume.
§ Moved, That the House do now resume.—(The Lord Chancellor.)
§ On Question, Motion agreed to, and House resumed accordingly.