§ 2.50 p.m.
§ Order of the Day for the House to be again in Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair]
§ Clause 2 [Refusal of admission and conditional admission]:
§ On Question, Whether Clause 2 shall be agreed to?
§ LORD SILKIN
I feel it desirable that something should be said about Clause 2 of this Bill, which, after all, is the key clause to the whole Bill. In another place my friends were unwilling to allow Clause 2 to go through without a Division. I can promise your Lordships that we shall not divide here, because we recognise that the principle of the Bill has now been established, and all we can hope to do is to improve it in various ways. But we have to recognise that the whole question of the administration of the restriction of immigration turns on Clause 2 and the way in which the administration is carried out. It can be carried out in a compassionate, conciliatory and flexible manner, in a way which will go some distance towards reconciling the Commonwealth to this unwelcome Bill, or it can be administered in a harsh and strict manner and so increase the tension which undoubtedly has arisen. I hope it will be administered in the former way, and I am somewhat encouraged to hope that that will be the spirit by the Draft Instructions which the Home Secretary has prepared for the benefit of the immigration officers.
I should have been happier if the Government had been willing to accept in principle the setting up of a tribunal, which would have enabled immigrants who are refused leave to stay, to go 463 before the tribunal on appeal and have their case thoroughly considered. Although I do not want to return to this subject in any detail this afternoon, having argued the question yesterday, I think fairly fully, there is one remark I should like to make on it. The noble and learned Viscount rather gave the impression that it was contrary to constitutional practice, in cases where a Minister is given responsibility for carrying out a policy, to have any appeal against the way in which he carries out that policy; that it is his responsibility to Parliament and only Parliament can challenge it.
But I have been looking at the Franks Report again and there are numerous instances where that is not the case. For instance, under the National Insurance Acts local tribunals have been set up, although the policy of carrying out National Insurance rests with the Minister. Although scales and principles are all laid down, nevertheless in the interpretation of those principles there is room for argument, and if a person is not satisfied with the way in which the policy laid down by the Government is carried out he has a right of appeal. Similarly, there are the Industrial Injuries local tribunals and the National Assistance appeal tribunals and a great many more: and in all those cases there is this in common: that the policy is laid down by the Government, by the Minister in charge; there is a discretion on the part of the officers of that Ministry and there is a right of appeal against the way in which that discretion is exercised.
I am not one who likes to drive analogies too hard, although I suppose most of us argue by analogy when we think that the analogy is in our favour, but I believe the principle stands; that is, that there are cases, and many of them, where there is the possibility of an appeal against the way in which the officer of a Minister exercises his discretion. There may be other arguments against it, but on that score I should have thought there was a justification for an appeal in this particular case. But the Committee has decided otherwise and I am not going to ask the Committee to reverse its decision.
What I ask the noble and learned Viscount and the Government to do is 464 to consider it again in the light of the experience which we shall gain in the next eighteen months; to think again and to think sympathetically. After all, it is something that will, to a large extent, I think, reconcile the Commonwealth to this Bill if they feel that we are straining every nerve to do justice to the person who is refused immigration into this country. I do not think the administrative difficulties are serious. I dealt with those yesterday and I do not propose to repeat what I said. If it is right and desirable, it should be done. I would ask the noble and learned Viscount, therefore, to give the Committee an assurance that this matter will be looked at again during the course of the next eighteen months, unless he sees his way to do it earlier or is persuaded by the remarks I am now making to put down an Amendment on the Report stage, which would give a great many people satisfaction. But if he is not able to do that, I ask him at least to give an assurance that the whole matter will be considered again in the course of the next eighteen months and if at all possible an appeal will be provided.
I do not want to go through the other provisions of the clause, but I want to emphasise once more, before sitting down, that this is the vital clause of the Bill; everything depends on the spirit in which it is administered. I hope that it will be administered in a sympathetic spirit and not with a desire to keep out the maximum number of immigrants, but rather, if possible, with a desire to permit to come into this country every member of the Commonwealth who wants to come and who can reasonably be brought in.
§ LORD STONHAM
I hope before we part with this clause that the noble and learned Viscount will be able to give us more information on two categories of persons who are dealt with in the clause. The first is with regard to students. The clause is very clear here. It refers to a person who proposes to attend a course of study at any university, college or school, being a course which will occupy the whole or a substantial part of his time. I imagine that in the main the Government are thinking of university students or those who are going to attend a full-time course at a technical 465 college. They will be a particular class of person, either supported by scholarships or whose families are able to afford to send them over and support them while they are here. A very substantial number of immigrants from the Commonwealth are attending as evening students at the many polytechnics and schools throughout the country.
Last night at nine o'clock I was at the Northern Polytechnic, which is at Holloway in North London. I saw the students streaming out. Whilst it was not possible to take, and I do not claim to have taken, an accurate census, I should say that approximately half of all the students I saw were coloured—varying degrees of colour it is true, but obviously about half of them were Commonwealth students. Some of them no doubt were studying comparatively simple subjects, like improving their English; but many of them I saw coming from classrooms dealing with technical subjects—some of them quite advanced technical subjects. It is quite obvious that they are working during the day-time and attending these courses during the evening, and taking advantage of facilities for improving their education which are not available in their own country. I should have thought that that was not only extremely valuable to them, but also extremely valuable to the Mother Country. Therefore I hope that the noble and learned Viscount will give us some idea of what is meant by a "substantial part of their time". They would be attending for perhaps three hours during an evening, several times a week, which would add up to a quite substantial amount of study. They have to enrol in advance for these courses, and they are properly scheduled educational courses with a syllabus. I should hope that students who enrol for such courses would not be debarred but will be included in the provisions of Clause 2 (3) (b).
The other point that I want to address to the Lord Chancellor is the position of comparatively small firms desirous of employing immigrants from the Commonwealth. In a way, I have to declare an interest here, because I am a small manufacturer and for the last ten years have always had a number of these people in employment. I have studied them and consider that I know 466 something of the way in which they come here.
The great majority of these immigrants do not come over with a ready-made job, or a job already lined up for them. They come over because they think, rightly, that employment will be available to them very soon after they come. Some of them are skilled; the majority of them are unskilled. But it is my experience that the Ministry of Labour send them to firms who are known to be willing to employ these immigrants, and they send them after unskilled jobs, even when they are skilled, because perhaps at that time a job in their particular skill is not available. It has been my experience that they work for perhaps six months or a year until their own particular job comes up, and they then leave one's employment with a mutual goodwill.
On the other hand, there is the larger number who are quite unskilled but who do an exceptionally satisfactory job. We are all familiar with the job they are doing in transport and in other industries of that kind. However, I am not thinking of the larger organisations, who may find it a quite simple matter to write to the United Kingdom representative in the West Indies, or wherever it may be, and, as it were, arrange for a number of permits in accordance with their requirements, or of their annual or monthly intake. I am thinking of the small firms who, in the aggregate, employ a large number of these immigrants and who would find it very difficult to maintain their output or to carry on, in the full sense, unless they were assured of a continuing flow.
I submit that the subsection dealing with such admissions is most obscure. Subsection (3) (a) says that they must have "a current voucher issued for the purposes of" the section; and the Explanatory Memorandum indicates that they may apply for such a piece of paper to the United Kingdom representative in their own country or the country where they happen to be living. What I should like to know is: will it be possible for such people, who are apparently of good character and in apparent good health in their own country, to be granted a Ministry of Labour voucher even if they have no specific job to come to in this country? 467 If they are not so allowed, then it is going to lead to a diminution in the employment of these immigrants; and that, in my experience, will create quite serious difficulties for a number of firms in this country. If the noble and learned Viscount is not able to give an assurance of that kind, will he say what arrangements are expected to be made in order to assist the smaller firms in the recruitment of these people?
I would also add that I am thinking not only of the unskilled. My experience of the high degree of skill that these people have, particularly electricians, has been quite remarkable. Not only are they highly skilled, but they are devoted to their jobs in a manner which is most refreshing; and it would be a most unhappy thing if any artificial barrier were put up to their recruitment. I deplore this whole Bill as much as many of my noble friends on this side of the House. I think it is in every way wrong, and I fear that it is going to have disastrous consequences of a number of kinds. But I feel that if some assurances can be given regarding the two points I have raised, at least the consequences need not be so disastrous as might otherwise be the case.
§ LORD SHEPHERD
May I raise one administrative point? I have had some experience of arriving in an Asian country to find that its immigration regulations have changed overnight, without the airline people having been informed. I presume that this Bill will come into force immediately it receives the Royal Assent. Nobody in this House at the moment has any idea of when that will be. I wonder whether the noble and learned Viscount can help us by giving us a period of grace, say of seven days, after the passing of this Bill, before its contents become operative. I am sure that the House would not like people coming into this country from the Commonwealth only to find that, without notice to them, the Act had suddenly come into force, with the result that those people might at considerable expense be returned to their own country.
THE LORD BISHOP OF LIVERPOOL
I should like to support the request of the noble Lord, Lord Silkin, that before 468 this clause takes final form Her Majesty's Government will at any rate give it second, or perhaps third, thoughts. I am not able to support the request that there should be an Appeals Tribunal: I do not think that that would be workable. On the other hand, I hope that in some way or other Her Majesty's Government will find a way to provide for a second opinion in regard to what might be described as borderline cases, those where there is real difficulty, in order to avoid finality and a person being sent away without any opportunity of putting his case to anybody else.
It may be possible to provide the opportunity to get a second opinion, possibly for the help of the immigration officer himself. If something of that kind could be done I think it would do a great deal of good to-day among a number of people who feel troubled about this Bill. Many members of the Commonwealth feel that they will be treated in an arbitrary manner and that they will not be given a fair hearing. I think, too, that a gesture of that kind would make an enormous difference to many people to whom I have talked about this Bill in regard to its effects on the Commonwealth and its relationship with the rest of the world.
§ 3.10 p.m.
§ THE LORD CHANCELLOR
As the noble Lord, Lord Silkin, said, Clause 2 is the main operative part of Part I of the Bill, and therefore I am very glad that the noble Lord and others have taken the opportunity to raise certain points upon it. It does, of course, embody the vital principle that a Commonwealth citizen coming here for employment must have a Ministry of Labour voucher. I did explain that at some length in my speech on the Second Reading, but in view of the request of the noble Lord, Lord Stonham, may I just say a few words which I hope may help him?
As he will remember, there are three categories: persons with genuine jobs to come to in this country; secondly, persons possessing skills or qualifications of particular value to this country; and thirdly, other persons coming to this country for purposes of employment. I think the first point—and I hope the noble Lord will understand that this is 469 put forward in an entirely helpful way—is that for those who desire to come to genuine jobs in this country, of course the job has to be there. If the noble Lord and those in the position which he has described would do their utmost on this side, by keeping in touch with those already employed, to bring in and absorb those who may be known to their present employees to be desirous of a job, then of course they can use the procedure; and when the Ministry of Labour have confirmed that a genuine vacancy exists the voucher will be sent to the employer for transmission to the Commonwealth citizen. This will enable the employer to make the necessary arrangements for the man's reception and give him full details when sending on the voucher.
With regard to the second category, those with skills, the arrangements for handling the applications and vouchers under this category are being agreed with the Commonwealth countries concerned. In general, applicants will complete forms in their country setting out the qualifications they claim. These claims will be scrutinised in the country concerned, either by officials from the United Kingdom or by local officials, before the forms are forwarded to London. Where the skills claimed are accepted as coming within the list for which those priority vouchers are issued, the vouchers will be sent by the Ministry of Labour in London to the appropriate offices of the United Kingdom High Commissioner in the country concerned for onward transmission to the appellant.
With regard to Category C applications—persons not claiming special skills—these should be sent to the Ministry of Labour in London, in some cases direct by the applicants, and in others via the High Commissioner. Vouchers will be issued by applicants in this category at a controlled rate and will reach applicants by the same channels as for Category B. Of course, the flow of immigrants will be regulated by the Government's decisions on the rate of issue of Category C vouchers, and the rate of issue will be that which the Government judge to be right at any time, having regard to our capacity to absorb immigrants into our national life. I think that every care has been taken in bringing the scheme to this stage; and of course every care will be taken to look 470 for improvements in order to see that the applicant is given a chance of considering the position in all three categories before he leaves his own shores.
The noble Lord, Lord Stonham, then asked about students. I said a good deal about this at the end of the debate yesterday, and if the noble Lord would do me the honour of looking at the OFFICIAL REPORT he would find a good many aspects dealt with. But as he has raised the question again, I shall just put it generally. If the noble Lord will look at the Instructions, paragraphs 12 and 13, he will find the matter dealt with. Perhaps I might just take the passage at the top of page 5, which says: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 think that one of the cases which the noble Lord, Lord Stonham, had in mind was where there was prescribed study—to take his own figures—of, say, three hours a night on several days a week. I said yesterday—and I repeat—that the 15 hours a week is only a guiding figure. For, if the noble Lord will look on to paragraph 13, he will see that it says:On the information available to the Immigration Officer, 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 (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 …On the two paragraphs that I have mentioned, I should have thought that, on the case the noble Lord put to me—of a person studying three hours a night, several days a week—it would be extremely probable that the person would be admitted. I think it is clear from what I have just quoted and from what I said last night, that the student qualification must not be used as a method to evade the labour control. If people are really coming here to find work, then they must obtain their voucher and not evade the duty of doing so.
I think those were the two points about which the noble Lord, Lord Stonham, asked me. I wanted just to show that Clause 2 does deal with the 471 position of the student, and is carefully drafted to secure that the genuine student, in the situation which I have just mentioned, is given protection. Your Lordships will note that it was necessary to give statutory protection to those who are outside the voucher system, for the simple reason that they can support themselves without recourse to gainful occupation. That is provided for.
I now come to the point which was raised by the noble Lord, Lord Silkin, and the addition that was made to it by the right reverend Prelate the Lord Bishop of Liverpool. I hope he will allow me to say how much pleasure it gives one who had the honour to represent Liverpool in Parliament for twenty years, to reply to the right reverend Prelate. On the point which the noble Lord, Lord Silkin, put to me, I would be prepared to argue that his analogies were not exact or really dealing with the cognate subject matter, because if one takes, for example, industrial injuries, as he knows probably as well as anyone in the world, the tribunals now deal with that point, which used to occupy so much of his attention and mine, of whether the accident arises out of and in the course of the employment. Therefore, I shall submit that they are dealing with an issue which is more justiciable.
I want to make only this one general point—and this is not a debating point—that I think it would be a pity to consider these instructions, which have been generally considered to be liberal, reasoned and humane, as if they were a Statute, and as if every point in them was to be subject to legal argument as to whether it had been complied with. But on the general point, which, if I may say so, is the more profitable point, I want to say that, of course, we shall consider this very carefully. This is the method by which my right honourable friend wishes his policy to be carried out, but if there can be improvements, not only shall we be very glad to hear of suggestions but we shall be looking for them ourselves.
With regard to the special point raised by the right reverend Prelate, of course, as I indicated yesterday, there are certain cases on which there is almost inevitably a reference from the immigration officer to the Home Office, and certain cases 472 which, as a matter of practice in the administration of government, always go to a Ministry and are considered there. But I will convey to my right honourable friend—and I am sure he will be most interested in it—the underlying suggestion of the right reverend Prelate that one might be able to make categories in which a second opinion was inevitable and to consider what that second opinion would be. If I understood the right reverend Prelate correctly, that was what he had in mind; and in just answering him colloquially, "off the cuff", that would seem to be a method worthy of consideration: to find categories which are of themselves of such difficulty that there should be some further consideration. May I leave it there for the moment? But I assure him that the matter will be looked into.
On the point raised by the noble Lord, Lord Shepherd, if he will allow me to say so I think it is a most interesting and important matter. Therefore, perhaps he would allow me to spend just a moment on it. The noble Lord will know that Clause 21 (5) provides that the Bill should be brought into force by order of the Secretary of State, and that different dates may be appointed for different purposes. It is expected that Part II of the Bill, dealing with deportation, will be brought into force shortly, possibly one month after the Royal Assent. Clause 12, which is consequential on the deportation provisions, would be brought into force at the same time.
It may take longer to make all the administrative arrangements to bring Part I into force. Time must be allowed, for example—I think this meets the noble Lord's point—for applications to be made for vouchers, as I have explained to the noble Lord, Lord Stonham, for the Ministry of Labour to consider applications, and for the first vouchers issued to reach intending immigrants in other parts of the world. As soon as the Bill becomes law, vouchers could be issued, before Part I of the Bill was in force, for presentation after the control system had begun to operate, but time must be allowed for setting up the entry certificate procedure. It really comes to this. The power to fix appointed days has really been taken for the reasons which I think the noble Lord had in mind. In consequence of 473 that, I think we shall be able to avoid the course about which he legitimately had fears.
§ LORD SHEPHERD
Would the noble and learned Viscount undertake that that information will be available in the countries from which immigrants are coming, so that a check could be made there to stop any "hardship" people coming here in the hope of gaining entry and finding it is not possible?
§ THE LORD CHANCELLOR
Of course, I will consider that. I should like to discuss with my right honourable friend and my other colleagues concerned what would be the most efficacious course. But what is in the noble Lord's mind commends itself very much to me, and, therefore, I can assure him that it will be thoroughly considered in order to bring about the best course.
I hope that I have answered to the best of my ability at the moment the points that have been raised. I want to make this point. Even the most forceful critics of the Bill have been impressed by the reasonable and liberal spirit that pervades the Instructions. The taking of Parliament and the public into the Government's confidence on this point has plainly had a reassuring effect. Granting the principle on which there is disagreement—one has to grant it although your Lordships have given the Bill a Second Reading—and leaving aside the question of the appellate machinery, on which we had a full and excellent debate yesterday, I am justified in claiming that this clause, read in the light of the Home Secretary's Instructions as to the way it is to be operated, has been generally accepted as providing a system of control that is at the same time workman-like and humane.
Of course, improvements will present themselves and, as my noble friend Lord Hemingford reminded us yesterday, and as we have been reminded again to-day, the Bill will come up for renewal before the end of next year. I would ask noble Lords to do two things: first, to communicate most freely any suggestion of improvements; and, secondly, apart from fields where they think improvements can be made, to suspend their judgment for that period in order to see whether their 474 anxieties prove to be well-founded. I ask your Lordships to let the clause join the Bill.
§ Clause 2 agreed to.
§ Clause 3 agreed to.
§ Clause 4:
§ Offences in connection with control of immigration
§ (2) If any person knowingly harbours any person whom he knows or has reasonable grounds for believing to have committed an offence under subsection (1) of this section, being an offence committed by entering or remaining within the United Kingdom, he shall be guilty of an offence.
§ 3.30 p.m.
§ THE EARL OF LONGFORD moved to leave out subsection (2).
The noble Earl said: I should like to move that subsection (2) of Clause 4 be omitted as being unnecessary, and, in fact, dangerous. When the noble and learned Viscount the Lord Chancellor replies, perhaps he would answer this fairly obvious question: does this clause make an offence something which would not otherwise be an offence, or does it simply underline the fact that that something is already an offence? I do not know whether it does create an offence or not, but I would rather assume that, even without this subsection, it would be an offence, strictly speaking, to do what is referred to here. That is to say, I should be inclined to assume (but I am waiting for a ruling from the noble and learned Viscount) that if somebody
knowingly harbours anybody whom he knows or has reasonable grounds for believing to have committed an offence
of a certain kind, he is himself committing an offence under the existing law. If that is so, why put it in the Bill?
§ If the noble and learned Viscount the Lord Chancellor should say that it does not do any harm coming here, even if it does not do any good, I would point out at least one danger. There are a considerable number of people who are perhaps not so well disposed to coloured visitors to this country as they should be. They may be reluctant to take them 475 in, though they may not be anxious to reject them unless they have something which seems like an excuse. If someone who keeps a lodging-house were able to say to himself, "It seems very dangerous to take one of these people in; for all I know, he may have committed an offence, or I may be thought afterwards to be harbouring someone who has committed an offence ", that would provide just the kind of excuse of which somebody who was not very liberal in his outlook would be only too ready to take advantage. Therefore, I would say that, if this is already an offence at law, it would be a great mistake to underline the fact here. It is drawing attention to it; it is treating it as something particularly grave.
§ That is one possibility. On the other hand, if it is not already an offence under the ordinary law of the land, why should it be treated in this special fashion? Why should it be singled out in this way? It therefore seems to me an unnecessary provision and a dangerous one. Before I say any more, and, perhaps, if I may respectfully say so, before any other noble Lord develops his argument, it might be convenient if the noble and learned Viscount the Lord Chancellor would tell us whether this is creating an offence or is simply underlining the fact that an offence of this sort exists. I beg to move.
Page 4, line 40, leave out subsection (2).—(The Earl of Longford.)
§ THE LORD CHANCELLOR
I will answer the noble Earl at once. If this subsection were not in, this would not be an offence. Therefore, subsection (2) is creating an offence, and I shall deal with it on that basis. I am afraid that, as the matter was discussed at considerable length in another place, I shall be repeating arguments which were made there, but I am sure the House will understand that that is necessary. The first point that I should like to make is that the offence is carefully defined and can be committed only if a person "knowingly harbours someone whom he knows or has reasonable grounds for believing" to be here illegally. In my view,"reasonable grounds" expresses an objective condition and requirement—that is, it would be necessary to prove 476 that as an objective fact. The offence would not be committed simply because an hotel keeper lets a room to someone who later tuns out to be here illegally.
Nevertheless, we think that the provision is necessary as a deterrent against those who might be tempted to help others to escape the notice of the authorities and remain here. Such a situation could arise, for example, if someone escaped from custody after being refused admission, or if a stowaway slipped ashore without being noticed. I do not think that it is a decisive argument that the subsection may be seldom employed. Its existence should provide a deterrent to those who might otherwise participate in deliberate evasion of the basic control; and, if you have a control, you must be seen to have the machinery to enforce it.
The Government do not accept the suggestion that the subsection will encourage hotel and lodging-house keepers to practice racial discrimination. First of all, the offence is, as I have said, carefully defined, and cannot be committed merely by letting rooms to an immigrant who later proves to be here illegally. Secondly, the immigration control introduced by the Bill applies to all Commonwealth immigrants, irrespective of race. Then, thirdly (and I think this is a potent argument), although a similar provision has existed for many years in Article 25 (2) of the Aliens Order, 1953, no evidence has been produced, and none is known to the Home Office, that the words in the Aliens Order have ever made lodging-house keepers reluctant to admit aliens. Your Lordships will appreciate that, under the Aliens Order, the offence that is committed is committed by an hotel or lodging-house keeper, who may be a British subject or an alien; and the same applies here. For all these reasons, I think it is, as I have said, a necessary piece of enforcement of the control, and I would ask the noble Earl not to press his Amendment.
§ LORD SILKIN
I think that, in fairness, one must recognise that, on the basis that this is not otherwise an offence, as the noble and learned Viscount has explained, some provision making, it an offence to harbour a person who commits an offence under subsection (1) of Clause 4 is necessary, and I myself would 477 not complain about it, though I think my noble friend Lord Longford has rendered a service in raising the matter by asking that the subsection be deleted. But I am a little troubled by the language used. "Knowingly harbouring a person" is a very clear thing, and, of course, the onus is in that case on the prosecution to prove that the person knowingly harboured. But when it comes to having reasonable grounds for believing that a person has committed an offence, I feel that that is going rather wide, and that it endangers people who may be acting perfectly innocently but whose actions can be interpreted, perhaps, as giving rise to reasonable grounds for believing that they knew.
I do not want to bring forward the type of case in which this might happen, but I would just say that suppose somebody arrives destitute and without any means at all at a lodging-house, or at the home of a friend. I suppose that one might have reasonable grounds for believing that the visitor, who is in appearance and in every other way distressed and destitute, could be committing an offence; and such a person, who acted purely out of charity, might be in danger of being prosecuted.
I would ask the noble and learned Viscount whether he would not look at those words again to see whether they could be deleted at a further stage of the Bill, or whether some other words could be used which would leave it beyond peradventure that a person acting out of charity, or a person who did not make the necessary inquiries, would not be regarded as having reasonable grounds for believing that an offence was being committed. My noble friend Lord Morrison of Lambeth is here, and he reminded me earlier that these words were taken from, I think, Regulation 18B; and, as the noble and learned Viscount has said, they have also been taken from the Aliens Order. I am a little disarmed at hearing that no particular difficulty has arisen, but need we have words as strong as those under the Aliens Order or, especially, those under the old Regulation 18B? We are not going so far as the Aliens Order in all respects; we are hoping to treat Commonwealth immigrants rather more leniently. Therefore, I would hope that it might be possible to soften the impli- 478 cation of these words so that, unless a person really knowingly harboured an immigrant, he would not be in danger of committing an offence.
§ THE LORD CHANCELLOR
I hope that I can reassure the noble Lord on this, although, as he knows, I am always ready to look at any point which involves any question of law, especially when the noble Lord raises it. The onus which, as I see it, rests on a prosecutor who sets out to prove an offence is, first, to prove that the accused person knowingly harbours; that is, that he knows the person harboured is in his house, and has not just walked up the back stairs. He has to harbour knowingly. Then the prosecution must prove that he knows the person has committed an offence, The ordinary way to prove that is for the person to admit it and say that he knew the immigrant had come into the country. If he says, "I did not know that", then there is left the other ground which the prosecution must prove—namely, that the person had reasonable grounds to believe that an offence had been committed.
There is a much older legal history behind this than even Regulation 18B of the noble Lord, Lord Morrison of Lambeth. The phrase has for centuries been the basis of the defence to false imprisonment; that is, that a person had reasonable grounds for believing that a felony had been committed. That is why I said that it must be proved objectively that these reasonable grounds existed. The position is really covered if somebody says, "I did not know that this person had offended against the immigration controls," when any reasonable person, in these circumstances, would have known it. I think one must leave that open to the prosecution, because, as the noble Lord knows, it is a sort of instinctive defence to say, "Well, I did not know that this person had anything to do with this control of immigration," when every extrinsic circumstance points to the fact that any person would have known that he had.
§ LORD SILKIN
May I interrupt the noble and learned Viscount for a moment? I am sure he will not mind. I could understand that a person might suspect, although I would not want that point to go in the Bill. But the circum- 479 stances which the noble and learned Viscount has pointed out, that a person might have reasonable grounds for suspecting but he would not necessarily have reasonable grounds for knowing, might give rise to prosecution. This distinction between suspecting or wondering and knowing—there being reasonable grounds for knowing—might become blurred in the process, and a person might run the risk of prosecution.
§ THE LORD CHANCELLOR
I can assure the noble Lord that the wording of the clause imposes a far more severe onus on the prosecution than would be imposed by the word "suspecting". Under this clause they have to prove that they have reasonable grounds for believing.
§ LORD SILKIN
I am not asking that the word "suspecting" should be substituted. In fact, the example which the noble and learned Viscount gave was not "reasonable grounds for knowing", but "reasonable grounds for suspecting ", and I was afraid that the two things might become blurred.
§ THE LORD CHANCELLOR
I do not think they could. As I have said, this is a well known form of providing for the case where a person probably instinctively says: "I did not know," when it is quite clear from all the surrounding circumstances that he did know. As the noble Lord said, this has worked under the Aliens Act. It is very different from the highly singular point under Regulation 18B, which was that the courts construed in favour of the noble Lord, Lord Morrison of Lambeth, and his predecessor, in the very special circumstance that it was dealing with a Home Secretary, and in that case the construction of the phrase was a subjective one and not an objective one. This is a simple, often-used method of creating an offence of this kind. I will, of course, look into it again, and I will remind myself of all the precedents and the ways in which it has been used. If the noble Lord would be good enough to do the same, I think he will find that it is a well-tried form of wording, and that there is no danger in it. However, as I say, I will look at it again, and if I find any other words I will let the noble Lord know.
§ LORD CHORLEY
May I just refer to the fact that the noble and learned Viscount has said that this expression "reasonable cause" is an old legal expression used in connection with false imprisonment, where the defence is that of reasonable cause for taking the step of imprisoning? I suggest that that underlines the basic illiberality of this particular provision in the Bill, in effect equating what has happened with felony, the more serious type of offence known to law. In effect, it is making the person an accessary after the fact to a felony. An accessary after the fact to a misdemeanour, which, after all, is quite a serious type of offence in our Common Law, is not guilty of an offence. I think the fact that the Government are choosing to bring this within the category, so to speak, of the felony type of offence indicates the basic illiberality of this clause. It would have been much more liberal to have equated it with a misdemeanour, and to have said that a person should not be brought before a court of law for being an accessary after the fact in an offence of this kind.
§ THE LORD CHANCELLOR
My answer to that is that if you are going to have a control you must have a means of enforcing that control. As I have said, it has been done with regard to aliens. If you have no provision of this kind, then, as the noble Lord, Lord Silkin, said, whether we have these words in the clause or not, you could not exercise control. On that point, I cannot budge an inch. I will look at the wording but there must be a provision of this kind.
§ LORD CHORLEY
Over centuries the Common Law has had no need for anything so stringent for ordinary Common Law misdemeanours.
§ LORD AIREDALE
Surely there is another reason why these words are necessary in this subsection. Suppose an alleged offender absconds and cannot be brought to justice. It has not then been established that an offence has been committed. In those circumstances the harbourer cannot know that an offence has been committed. The most that can be said is that the harbourer had reasonable grounds for believing that an offence had been committed and might 481 have been proved had the alleged offender been able to be brought to justice. For this reason, I should have thought that these words were necessary in this subsection.
§ THE EARL OF LONGFORD
I began by saying that I regarded this clause as unnecessary and dangerous. The noble and learned Viscount has been able to instruct me about its legal implications, and I am grateful to him for that and also for the other points he has made. I am quite unconvinced by his reply, except, of course, on the law, which I accept from him totally. But as he has been good enough to say that he will look into the wording, I ask leave of the House to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Clause 5 agreed to.
§ Clause 6 [Application of Part II]:
§ The LORD CHANCELLOR moved, in subsection (2), paragraph (b), after "citizen", where that word first occurs, to insert "(i)". The noble and learned Viscount said: It may be convenient if we discuss Amendments Nos. 10, 11 and 12 together. Your Lordships will see that Clause 6 (2) as drafted exempts three categories of persons who have acquired citizenship of the United Kingdom and Colonies otherwise than by birth. These are, first, a person naturalised in the United Kingdom; secondly, a person adopted in the United Kingdom; and thirdly, a person registered in the United Kingdom under Section 7 of the British Nationality Act, 1948, which empowers the Secretary of State to register any minor.
§ The clause as drafted does not apply certain other provisions under which citizenship of the United Kingdom and Colonies may be obtained by registration—namely, Section 6 (1) of the 1948 Act, which, as amended in 1958, enables citizens of other Commonwealth countries to become registered as citizens of the United Kingdom and Colonies on the strength of residence in the United Kingdom or Crown service under the Government of the United Kingdom or employment abroad under a firm based in the United Kingdom; Section 6 (2) of the same Act, which enables any woman who has been married to a citizen of the United Kingdom and Colonies to be 482 registered as such a citizen; and Section 12 (6), which enables British subjects descended from a male ancestor born in the United Kingdom to be registered as citizens of the United Kingdom and Colonies, if they have a close connection with the United Kingdom and Colonies.
These additional categories, which I have just mentioned, were not included in the clause as drafted, because they would mostly be immune from deportation in other ways. For instance, the person registered under Section 6 (1) would normally have had to reside for five years in the United Kingdom to qualify for registration and therefore could satisfy the court under Clause 7 (2) that he had been continuously resident in the United Kingdom for a period of at least five years ending with the date of his conviction. Again, the woman registered under Section 6 (2) would in almost all cases be exempt under Clause 6 (2)(c) as being
the wife of a person of a description specified in paragraph (a) or (b) of this subsection ".
There will, however, be a few cases in which a person obtains registration under Section 6 (1) before the end of the five-year period specified in Clause 12 (2), by exercise of the Secretary of State's discretion to accept a shorter period. There may also be the case of a woman registered under Section 6 (2) who is no longer the wife of a person exempted under Clause 6 (2).
§ Further, it seems desirable to extend the exemption to persons registered in self-governing Commonwealth countries. Apart from women registered under Section 6 (2), who are mostly exempt anyway, there are not many such cases, but such cases as there are will mostly have been registered on the strength of a close connection with the United Kingdom—for example, by virtue of service abroad under the United Kingdom Government or by virtue of connection established for the purposes of Section 12 (6) to the satisfaction of the British High Commissioner, who exercises the Secretary of State's functions under that provision. High Commissioners have also authority to register minors under Section 7, but would not do so unless satisfied that the minor's future is bound up with the United Kingdom.
§ Accordingly, in order to be quite sure that we cover these rare cases, the 483 Amendment extends the third exemption in Clause 6 (2) (b) so as to include registrations under Section 6 (1) and (2) and Section 12 (6) of the 1948 Act; and registrations effected on the Secretary of State's behalf by British High Commissioners in self-governing Commonwealth countries. I am glad that I am urging three Amendments whose effect is entirely liberalising. I beg to move.
Page 5, line 39, after "citizen" insert "(i)".—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
Page 5, line 40, after "or" insert "(ii)".—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Amendment moved—
Page 5, line 41, leave out from (" or ") to (" or ") in line 44 and insert—
(" (iii) by being registered under Part III of the British Nationality Act, 1948 (either in the United Kingdom or in any country mentioned in subsection (3) of section one of that Act as originally enacted or as amended by any subsequent enactment) as a citizen of the United Kingdom and Colonies; ").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ 3.58 p.m.
THE EARL OF LISTOWEL moved, in subsection (2) (c), after the first "of" to insert:
or a woman who has been living in permanent association with".
§ The noble Earl said: The object of this Amendment is to correct what appears to be an inconsistency in the Bill. For the purpose of admission to this country, a wife and what may be called a Common Law wife are treated in exactly the same way. For the purpose of exemption from deportation from this country, a wife is exempted, whereas a Common Law wife is not. That, I think, is an inconsistency.
§ May I draw attention to the position of a wife who, for example, under Clause 2 of the Bill, wants to join her husband who is working in this country?484
It is clear from the Instructions that this clause applies whether the woman in question is a wife or a Common Law wife. May I, with your Lordships' permission, read the first sentence of paragraph 24 of the Draft Instructions?:
Any Commonwealth citizen who satisfies the Immigration Officer that she is the wife of a Commonwealth citizen resident in the United Kingdom is entitled to admission, provided that she is not herself the subject of a deportation order.
And paragraph 25 says:
A woman who has been living in permanent association with a man, even it not married to him, should be treated for this purpose as a wife.
That, I think, is clear enough.
§ When we come to Clause 6, there is no provision either in the Bill or in the Instructions to show that a Common Law wife is to be treated in the same way as a wife. Indeed, I think it is a fairly clear reading of Clause 6 (2) (c) that only a wife is regarded as a person who will be exempt from deportation under Part II of the Bill. There is no reference in the Instruction to the equating of a wife and a Common Law wife. I beg to move.
Page 5, line 45, after the first (" of ") insert the said words.—(The Earl of Listowel.)
§ LORD MILVERTON
I should like to offer an objection to this Amendment and, in doing so, I may say that I, too, was astonished to find paragraph 25 in the Instructions. What is it that we are trying to do? Are we trying to turn this Bill into a kind of legitimisation of concubinage? A great number of these people coming from the West Indies come from Jamaica, and one of the great causes of this desire to emigrate from Jamaica is the reckless increase of the population due to promiscuous procreation and the fact, which was established by a Commission which sat some years ago, that at that time over 50 per cent. of the births in that country were illegitimate. Naturally, with conditions like that, there arise from generation to generation numbers of people born outside of wedlock for whom the Government cannot find occupations or work. It was one of the problems of the Government when I was there, and it still is a problem.
485 I was surprised to find this in the Instructions. It is extraordinary that this country should accept as immigrants people coming from a country where the marriage tie (and the whole origin of the reason for it would take too long to explain) is so lightly regarded amongst large sections of the population who bring with them women who are not their wives. Marriage is very easy. How an immigration officer is going to establish the fact that a lady has been in permanent association I really do not know. But even if this were possible, these people come here to be integrated into our community. Are we going to throw overboard as part of the junk of a worn-out civilisation what is supposed to be one of the stabilising factors of society—namely, a respect for the marriage tie? Why should legal recognition be given to such an association? I am not condemning anybody; I am talking about what should or should not be in our law. I was surprised to find that Instruction in the Instructions, even if only in relation to deportation: but to put it into the law is, I suggest, going much too far. I understand that from many parts of the Commonwealth it would be proper so to treat a woman coming in, who, as the Instructions say, "by legal custom or tradition" has a permanent association with the man in question. That is another way of saying that in the community from which they come she is his wife. This Amendment goes a great deal beyond that, and therefore I suggest it is an improper Amendment to pass.
§ BARONESS HORSBRUGH
Could the noble and learned Viscount tell us, when he replies, how long "permanent" is supposed to be? When they say "permanent association", have the Government considered how long it ought to be? Secondly, supposing somebody comes with a woman who is supposed to have had permanent association with him, and there is a real wife, is the wife to be allowed in as well, if she can prove that she is the wife? And will the other woman be sent out?
§ LORD OGMORE
I take it that the object of the Instructions regarding people coming into the country is to deal with the special class of case which we know arises in the West Indies, and 486 particularly in Jamaica. I understand the reason for that, although I am beginning to wonder whether it is a good one or not. One hundred and forty years ago there was slavery in the West Indies, but it then ceased. For some reason or other, there has been a custom ever since that people there do not get married. I do not think this is a particularly good reason, but whether we think that or not, we know it is a custom in Jamaica to an unfortunate extent that people do cohabit without getting married.
§ LORD MILVERTON
May I interrupt the noble Lord? I would suggest that it is not a custom. It may be a prevalent irregularity, but it really is not a custom.
§ LORD OGMORE
That is merely splitting hairs or splitting words. Whether it is a matter of regular course or whether it is a regular custom, it amounts to the same thing. The fact is that it is done on a much larger scale (if I may put it that way) than it is in this country. When you remember that something like 57 per cent. of the registered births in this part of the world, and particularly in Jamaica (this was so when I last saw the figures) are illegitimate births, you realise the position. However, the Government have said, and I think rightly, that, in view of this fact, where people are being admitted into the country we must recognise the situation and accept people who are cohabiting in this way as husband and wife.
But it does not seem to me that this applies when you are going to turn them out. After all, we have not had the custom—at any rate, until recently—of cohabiting. This is a Christian country. It is true that the Dean of Westminster calls it the "post-Christian era"; but I am happy to say that in a large number of cases in this country—and I wish it were in all cases—there is very little cohabitation: we have marriage, either Christian marriage or marriage in a registry office. It seems to me quite wrong for us to pass an Amendment of this kind, which in fact puts the wife, married in church or in a registry office, in the same position as the mistress.
I take the greatest exception to that. I believe in Christian marriage. I believe that many of our difficulties to-day are due to the fact that marriage is not 487 regarded in the light that it should be and that there are frequent divorces and things of that kind. Anything which in any way derogates from the principle of marriage, from the living together and sticking together of one man and one woman, who take their oath at the altar to live together until death do them part, is, in my view, to be deprecated; and I certainly feel that to put mistresses and concubines into the same position as wives is something that this Parliament should never countenance. I feel strongly about this, because I feel strongly about the institution of marriage; and I am only sorry that more people do not.
Therefore, I do not think there is any case at all for this Amendment. If the man and woman are living together, why do they not marry? They have every opportunity in this country of getting married, and if they do not, then when either is going to be turned out they cannot claim to be in the position of a married couple. I strongly hope that the noble and learned Viscount will resist the Amendment. If it is pressed to a Division I will go in with the Government.
§ LORD SILKIN
I can promise the noble Lord that we will not press this to a Division, so he will be deprived of the joy of going into the Lobby against it. But it astonishes me that this should have created so much heat. This is a practice which is common in the countries with which we are dealing, and we have to recognise it. We may or may not approve of it. Obviously many of us do not approve of it. But to close our eyes to the fact that this is a practice and to the acceptance of that fact seems to me ridiculous.
§ LORD MILVERTON
If I may interrupt the noble Lord for one moment, would he not differentiate between refraining from condemning the practice somewhere else, and insisting, if they wish to come and integrate themselves into our community, that they must have some regard for the practice of this community?
§ LORD SILKIN
They no doubt will, as they become integrated. Of course they will. But we are dealing with the people who come into this country and 488 who have been here a short time, because after a certain time the deportation provisions do not apply. So we are dealing, in the first instance, with short-term arrivals in this country, and integration takes a long time. One must not fall into the error of assuming that everything that happens here is right, and that everything that happens elsewhere is wrong if it is different from what we do.
I must not be held to be arguing in favour of this kind of "marriage" for this country—of course not. But do not let us be hypocritical about it. Surely, during the war we recognised that this kind of association existed in this country. We even gave separation allowance to unmarried wives. Of course, the noble Lord would have disapproved of that, and would say we should never have done it. The noble Lord, Lord Ogmore, will say "This is monstrous ". But we did it. Was the noble Lord not associated with the War Office when this happened? He made no protest.
§ LORD MILVERTON
I suggest to the noble Lord that there were many practices during the war which he would not defend to-day. For instance, there was Regulation 18B, and there were a number of other arrangements which were necessary during the war.
§ LORD SILKIN
This was something which commanded general acceptance in this country. What I am saying is that we accepted the position of an unmarried wife. I was not so much making the point that we gave unmarried wives a separation allowance as that by giving them such an allowance we recognised the fact that they existed. All we are doing here is to recognise the fact that there is the unmarried wife, and that it is a practice in the case of the West Indies. As I have said, we are not going to divide the House on this Amendment, and I suppose it is not a matter over which we would go to the stake. But it is a point which I feel fully justified in having raised, and I hope the noble and learned Viscount will give rather more consideration to it than those who have spoken in such heated terms against it.
§ BARONESS HORSBRUGH
Perhaps I am wrong in the point which I put forward, but after the speech of the noble Lord, Lord Silkin, perhaps I might ask, this. If a man we have allowed in commits a crime and is deported, would we say that he must take out of the country the woman he has brought in?
§ VISCOUNT MASSEREENE AND FERRARD
If a Jamaican, for instance, had five or six wives with whom he had been living in permanent association—as of course does happen; I have known of it personally—would the noble Lord want the immigration officer to allow in half-a-dozen of these women with the immigrant? Further, how can an immigration officer prove that a woman has been living in permanent association with an immigrant? Is he going to take the immigrant's word for it, or the woman's? I think it would be extremely difficult for the immigration officer to decide.
§ LORD WALSTON
I do not want to enter into a long argument with the noble Lord, Lord Milverton, about the desirability or otherwise of the legitimisation of concubinage. I am not much of an historian, but I think at times there have even been Members of your Lordships' House who have owed their position and their right to sit here to the fact that there was some legitimisation of what might be called concubinage. But that is not really the point at issue to-day.
We are dealing with two problems. I thought that one of them had already been dealt with—namely, the rather liberal element of this Bill which recognises the fact that, in certain of the countries of the Commonwealth, people associate together as man and Wife without having gone through a form of marriage, either civil or religious. That is perfectly respectable. I have come across cases of very respectable, middle-aged men getting married, and the reason was simply that the parish priest—and these people are good Roman Catholics—had said, "I will not baptise any more of your children, having already baptised seven or eight of them, until you are married to the mother of these children ". So the couple go off and get married. In their view there is nothing wrong or immoral about that.
490 From the purely practical point of view of this Bill and my noble friend's Amendment, let us take a simple example. Two women come into this country because, in one case, the legal husband is over here and, in the other case, the Common Law husband is over here. Let us assume that those two men had been neighbours in Jamaica, had established themselves over here, and had said, "When we are established we will send for our wives ". They do so. Both those wives are quite correctly and properly admitted into this country under the provisions of this Bill, one being the legal wife and the other being what we call a concubine wife. Within a period of six months, for some reason those women commit an offence, both of them in concert, which otherwise would render them liable to deportation. As the Bill stands, one of those women will be allowed to remain here because she is a legal wife and the other will be deported. That seems to me an anomaly and an injustice that we should not allow to go through in this Bill. I hope the noble and learned Viscount will seriously consider doing something to this clause which will remedy that situation.
§ THE LORD CHANCELLOR
The debate has gone very wide, and I think it would be an advantage if I brought it back to the actual facts. I think it is sound to begin with what my right honourable friend the Home Secretary said in moving the Amendment which dealt with a wife's coming in. Mr. Butler said—and I quote his words [OFFICIAL REPORT, Commons, Vol. 653 (No. 49), col. 320]:The Amendment does not deal with the case of a woman who is living in permanent association with a man but is not legally married to him—a situation which I understand frequently obtains among West Indians. It is impossible to put this in statutory form, and that is why we have not done so, because there are degrees of permanence in such associations which would be difficult, despite the skill of parliamentary counsel, to write into the Statute. Therefore, we have to rely here, whether we like it or not, on the discretionary element, that is on the action of the immigration officer acting on the instructions which I shall give him.He gave the instructions, which have been quoted by the noble Earl, Lord Listowel, that 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, 491 and that immigration officers should bear in mind any local custom or tradition tending to establish the permanence of the association. But we start from the point that my right honourable friend said that with regard to entry it was quite impossible to put it into the Bill; and the difficulty which obtains, whether it is a matter of entry or deportation, is that there is every degree of permanence ranging from a temporary liaison which is briefly hoped to be permanent—and that is just an historic fact of emotional experience—to an association indistinguishable from marriage in all but its legal basis. That is why when Clause 2 was amended in the Commons so as to give assurance of entry to a wife of a Commonwealth citizen resident in the United Kingdom it was not found possible to deal with these women by statutory definition, and the point had to be left to be dealt with by the discretion of the immigration officers on these instructions.
What the noble Earl has done is to copy from the wording of paragraph 25 of the White Paper the instructions which I have just referred to and quoted; but it is one thing to deal with an elastic matter by general instructions, leaving much to the good sense of immigration officers; it is another thing to attempt to define such a matter in a statute. As the noble Baroness, Lady Horsbrugh, has pointed out, even the draft instructions can be criticised for vagueness, though this is, I think, inherent in the situation. Even more pungent words than hers were used by a friend of many of us, Mr. Christopher Hollis, writing in Punch on February 28, when he said:What exactly does permanent association mean? It is easy enough to get a rough idea, but in the borderline cases how much association constitutes a permanent association? And how is the immigrant officer going to know about it? … And how can the officer be certain that the association is going on for ever and ever?That is a difficulty. But when, with regard to admission, we have a wording—I will not read it all again—which says, "to bear in mind any local custom or tradition" it is an instruction to the immigration officer to take a generous view of the position. I can tell my noble friend Lady Horsbrugh that, in my view, the position of a legal wife 492 is governed by the Bill and, whatever procedure is followed on the Instructions, that does not affect the position of the legal wife.
There are two other points, one of which was put very strongly by the noble Lord, Lord Walston, regarding the position on deportation in the one case of a legal wife and in the case of someone having a bona fide permanent, for life, cohabitation. That is a position in which a court, in considering whether to recommend deportation, would take due note of the fact that a woman offender would, if legally married, have been statutorily exempt from deportation. On the one hand the immigration officer is told to take a generous view and, on the other hand, the court would consider exactly that point, assuming the two cases postulated by the noble Lord were to come before the same magistrate on the same day, and the facts which the noble Lord postulated were all proved. That is a matter which would be taken into account and there is no question of the one being automatically deported.
It is a matter which the court would consider. And even after the magistrates considered it, it would also have to be considered, as the noble Lord will appreciate, by my right honourable friend the Home Secretary; and, speaking as a member of that most distinguished trade union of ex-Home Secretaries, I think that I can say that any Home Secretary whom I have known over the last 40 years would be unlikely to make a deportation order, even if recommended by a court, against a woman who had long been living, for practical purposes, as the wife of an exempted man, even if not legally married to him. That is how it would work in practice.
But I think that the noble Lord, Lord Ogmore, introduced a point which must be considered, because really the argument has been put that if an unmarried but permanent partner has been exempted from immigration controls, if only by instructions, surely she can be exempted also from liability to deportation, leaving it to the court to decide whether the association is permanent within the meaning of the discretion. That, as I say, would be a very difficult matter. I think we have to consider 493 what the noble Lord, Lord Ogmore, said, that the two parts of the Bill are not on all fours in dealing with the admission of immigrants. It is right to give discretion to immigration officers to administer controls in a humane manner, but it is not right to separate people living a family life together. But it is different when an immigrant has been proved to have abused the hospitality of this country by committing a serious offence. Any such person is prima facie suitable for deportation, and exemptions must be narrowly and precisely drawn.
As I have said, the court can always decide not to recommend deportation; the Home Secretary can always decide not to act. But to say, in these circumstances, with all the difficulty that occurs with regard to permanence, that the court is to be debarred from recommending, and the Home Secretary is to be debarred from enforcing, a deportation order is, in my view, going too far. The whole circumstances must be considered and one cannot tie over all the bodies concerned in a way which could prevent them from considering all the circumstances. Therefore, I hope that the noble Earl will agree that he has awakened a very full and interesting discussion on various points of social, moral and other matters but, after that discussion, I ask him not to press but to withdraw the Amendment.
§ THE EARL OF LISTOWEL
I am very grateful indeed to the noble and learned Viscount for his reply, and to noble Lords and noble Ladies for a debate which I must say took me by surprise: but it was most enjoyable and enlightening to listen to. I am certainly convinced by what has been said against this particular Amendment, and my conversion, I think, started with the intervention of the noble Baroness, Lady Horsbrugh. I think it is perfectly clear that you really cannot define what is meant by "a permanent association" sufficiently clearly to include a formula of that kind in a Statute, and that point was driven home by the noble and learned Viscount in his reply.
At the same time, I was very pleased that he said that in the enforcement of the Bill account should be taken, in the case of an application for deportation, of the position of a woman who had 494 been living here in permanent association with a man. It seems to me, if this is a case or could be a case of hardship, that nothing could be included, either in the Instructions or the Bill itself, to cover it. But I am sure that the noble and learned Viscount's words will be carefully considered and will suggest a course of action which would be right and proper in cases of this kind and which would avoid the infliction of unnecessary hardship on families who have settled here and intend to continue to live here. In view of what the noble and learned Viscount has said, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6, as amended, agreed to.
§ Clause 7:
§ Power of court to recommend for deportation
§ 7.—(1) Subject to the provisions of this section, where a Commonwealth citizen to whom section six of this Act applies, and who has attained the age of seventeen years, is convicted of an offence punishable with imprisonment, the court by or before which he is convicted, or any court to which his case is brought by way of appeal against conviction or sentence, may recommend that a deportation order be made in respect of him.
§ 4.32 p.m.
§ LORD SILKIN moved, in subsection (1), after "convicted" to insert "by a count other than a magistrates' court". The noble Lord said: I hope that this Amendment will not arouse the fervent ire of the noble Lord, Lord Milverton, or the noble Lord, Lord Ogmore, in the same way as it did on the last occasion. Clause 7 deals with the power of the court to recommend for deportation, and it provides that where a person is convicted of an offence punishable with imprisonment the court may recommend deportation. In another place various Amendments were moved in order to ensure that this power of recommending for deportation would not be exercised in the case of fairly trivial or not serious offences. The desire on the part of those who moved those Amendments, and my desire, is to soften the impact of this Bill, and to make it appear not too harsh to those who are going to be affected by it.
§ It could be that a person who is convicted of an offence punishable by imprisonment may nevertheless not actually be punished with imprisonment. It may be not as serious as that; it may be 495 possible that he would be fined and not actually imprisoned. Nevertheless, because it happens to be an offence which is punishable by imprisonment, he lays himself open to a possible recommendation for deportation. Therefore one has attempted to find a form of words which would discriminate between the more serious offence in which deportation would be justified and the less serious ones, minor offences, which would come within the ambit of the clause as it stands, where a recommendation for deportation would not be justified. To give one example, I believe that there are certain offences under the Road Traffic Act which are punishable by imprisonment but where, in fact, imprisonment is never actually imposed. Nevertheless, a person who commits an offence under the Road Traffic Act or various other measures of that kind would lay himself open to the possibility of deportation.
§ The Amendment which I am moving is an attempt to lay down a criterion of what is a serious offence and what is not. I want to make a confession to the Committee: that I do not think that the distinction in my Amendment is a valid one. I read the Amendments moved in another place and I thought that I had hit on a very effective method of discrimination. It happened to be in the early hours of the morning. But on thinking again about it I must confess that I cannot defend these actual words; therefore, in due course I should be prepared to withdraw the Amendment. But I would ask the noble and learned Viscount, if he accepts the principle that I am laying down that we do not want it to be possible to have deportation orders made in respect of minor offences and that they should be only in respect of serious offences, to see whether he cannot help by himself putting forward a form of words which would make that distinction.
§ In another place an Amendment was moved that it should be in respect of indictable offences only. That was dealt with, I think, by the Attorney General, who satisfied the House (I think it was on Report stage) that that also did not make the distinction which we wanted to make. But I am sure that human ingenuity will find a form of words which would draw this distinction, and would, 496 as I say, make it not possible that a person convicted of a minor offence would for that reason be recommended for deportation, but that deportation should be reserved only for the more serious offences.
§ I recognise that a recommendation for deportation is not the same thing as an actual deportation, and the noble and learned Viscount may say that the trade union of ex-Home Secretaries have always acted reasonably and that they certainly would not accept a recommendation in respect of a relatively minor offence. But we are dealing with an Act of Parliament and we want to give to the Home Secretary as clear a guidance as possible, if we really can give it to him, so as to ensure that it is laid down for the whole world to know that that is the position: that while we are providing for deportation we are not going to deport in respect of minor offences. I hope that the noble and learned Viscount will, as I am sure he will, be prepared to look at this matter with a view to finding whether some form of words can be devised to give effect to what I have in mind in moving this Amendment. I beg to move.
Page 6, line 9, after ("convicted ") insert ("by a court other than a magistrates court ").—(Lord Silkin.)
§ 4.40 p.m.
§ LORD OGMORE
The noble Lord, Lord Silkin, has to some extent spiked our guns by saying that he does not like his own form of words. I do not like them either. The reason there are difficulties is that there may be comparatively minor offences which are punishable by imprisonment and, therefore, would bring the offender within the scope of this particular clause. But I do not think the illustration given by the noble Lord is a good one. His colleague, the noble Baroness, Lady Wootton of Abinger, is constantly pointing out that we in this country pay far too little attention to, and regard with too little seriousness, offences on the road, having regard to the number of deaths on the road. In fact, says the noble Baroness, they are criminal offences, like any others; and they arise largely out of selfishness. That is her argument, and I think there is a great deal in it.
497 What are the offences which should be excluded from this particular provision? I fail to see any. I personally think that if a man does not behave himself over here and commits a criminal offence, then, if the court and the Home Secretary are of the mind that he should no longer be among us as a guest, he should go. That is what happens to us anywhere else. Why should it be any different in this country where criminal offences are concerned?
If the test is the question of the magistrates' court that, in my opinion, would strike a serious blow at justice in this country. As we know, magistrates handle over 90 per cent. of the criminal cases of this country, and a number of those who will, I hope, be caught by this clause are the evil men, the pimps, who live upon the immoral earnings of women. They are difficult to catch, as we all know. In fact there was a group of unscrupulous men who were never caught in this country—I refer to the Messina brothers. We had to wait until the Brussels police caught them, before they could be dealt with here. They flourished like an evil weed for many years in this country. There are less well-known ones now, but they still operate in this country, and particularly in this big city of London.
What will happen is that none of these people would be tried by a magistrate. The magistrate would simply have to take the depositions and send the accused on to quarter sessions—and here, as a London magistrate, I speak with some knowledge. I guarantee that by the time those people reached quarter sessions or the assize court quite a number of witnesses would have lost their memory. I am sure that my noble friend Lord Rea, who is also a London magistrate, would say the same. I have seen it happen in the middle of a case that the woman concerned has lost her memory in the lunch-hour, or at some other time when there has been a pause. Obviously, she is afraid of having her face smashed in, or of being disfigured with a razor or something else. This is the type of people with whom we are dealing. To take away the power of the magistrates in this way would, in my opinion, be allowing these evil men to continue in their courses. Therefore, I would say that, so far as people who have committed offences 498 punishable by imprisonment are concerned, it is much better to leave the terms of the Bill as they are now.
§ THE LORD CHANCELLOR
I am in the slight disadvantage that I have come prepared to meet the Amendment that appears on the Marshalled List. Although the noble Lord, Lord Silkin, did not advert to it, he probably noticed in his researches into the Bill that my right honourable and learned friend the Attorney General, in the discussion in another place, while stressing that in the Government's view there should be power to recommend deportation in respect of summary offences, offences which can be tried only by a magistrates' court, did undertake to consider further the proposal that the decision to recommend deportation should be taken only by the higher courts. In fact, no Amendments on this subject were put down on the Report stage. Therefore, I hope the House will bear with me if I say a word about that aspect of the problem, because the effect of this Amendment would be to exclude the possibility of recommending the deportation not only of persons charged with summary offences but also of offenders who could be brought before the higher courts but, under various procedures, are in fact dealt with by magistrates' courts.
There is an interesting supplement to the figure which was given by the noble Lord, Lord Ogmore—namely, that something like three-quarters of all indictable offences are, in fact, tried summarily before magistrates' courts. The offences which may be dealt with in this way are set out in the First Schedule to the Magistrates' Courts Act. Indeed, the Bill which has been through your Lordships' House and is now in another place, the Criminal Justice Administration Bill, added some "breaking" offences and other indictable offences to those which may be dealt with in that way. There are other offences—the so-called ".hybrid offences "—which are triable either on indictment or summarily; and again, there are breaches of the law which may be made the subject of proceedings for either an indictable or a summary offence. I think it would be unfortunate if there were to be a reluctance in any of these circumstances to agree to the summary trial of an immigrant because a recommendation for 499 deportation could be made only by a superior court.
I think that what I am now going to say is important, in the light of what has been said by both noble Lords. In my view, the exclusion of the possibility of deportation in respect of summary offences would not be justifiable when one considers certain summary offences in themselves. Among these summary offences in respect of which it may be thought that the courts should be able, in proper cases, to recommend deportation are: assaults of certain kinds; repeated offences of soliciting for the purpose of prostitution; brothel-keeping and related offences—rather on the lines of the offences which the noble Lord, Lord Ogmore, had in mind. Moreover, offences under the Bill itself—for example, returning to this country after deportation—in respect of which it is most important that the courts should have power to recommend deportation, are summary offences. I should not like to generalise about road traffic offences. For example, being drunk in charge may be a most serious offence. I think that what the noble Lord, Lord Silkin, had in mind was that series of old offences, where, tucked away in a Schedule to a Bill, there might be found a provision allowing a court to send somebody away for three months on conviction of a second offence. We have modernised a great deal of that in the present Road Traffic Bill which has been through your Lordships' House. But as I say, there are certain offences which I think all of us would regard as serious.
It was also suggested that the magistrates' courts should commit to the higher court for sentence under a procedure. We have considered that suggestion, but we have rejected it, for four reasons which seem good to us. First of all, there is the practical consideration that magistrates' courts have been recommending deportation in the case of aliens for half a century without appreciable public criticism having been attracted; and, of course, there is the safeguard (although I agree with the noble Lord, and I would not take that at all as the end of the matter) that the Home Secretary may not act on it. We are here dealing with a Bill in which recommendation by a court is a condition, and therefore we ought to look 500 at that closely. The second reason is that a person recommended by a magistrates' court for deportation may, by exercising his right of appeal, have the matter looked at de novo by quarter sessions. It is said that that might give quarter sessions extra work. On the other hand, so would the practice of referring to quarter sessions all cases which involved deportation, because you would them have to go through all the facts to decide whether or not it was a case for deportation.
Our third point is that in summary offences under the Bill—for example, returning to the United Kingdom after deportation—it seems unnecessary that there should be a committal to quarter sessions before deportation can be recommended. The fourth point is this—and I think this is more than a debating difficulty—that committal to quarter sessions with a view to a recommendation could only be in custody. That would mean that a convicted immigrant who did not wish to dispute his conviction or the making of a recommendation for deportation might spend weeks in prison waiting to appear before quarter sessions—on the basis that only quarter sessions had the right to recommend. I think these are all sound reasons.
That brings me to the really difficult point which the noble Lord, Lord Silkin, has posed to me, and that is to try to find another criterion. I think it is very difficult to do so. We have tried to find one, and we have failed. We will have another try, but it is a very difficult thing. If my noble friend Lord Iddesleigh will not object to my referring, merely for the purpose of illustration, to his Amendment, I would point out that the noble Earl, for entirely different reasons, is anxious to bring a first offence of soliciting into the field of deportation and to make it a deportable one. As I understand it, his argument is that he thinks this might be for the benefit of a young girl whose first offence it was. The only reason I have referred to this point—and, of course, my noble friend Lord Bathurst will deal with the Amendment when it comes on—is that it shows the difficulties one can get into when one departs from this simple rule of imprisonment.
When the noble Lord was speaking, I was thinking of all the different categories of offences. For example, 501 "felony" or "misdemeanour": that will not do, because so many statutory offences that have been made misdemeanours are extremely important offences. I do not think "indictable" or "summary" will do; the instances I have quoted show that. I do not think mala in se and mala prohibita would really help us at all. I find it a very difficult problem. Here is a simple rule—that the offence is punishable by imprisonment—and it would certainly be one which would be easy for people to understand. Therefore, all I can do is to say that I will try to exercise my knowledge of the law and my imagination at the same time, but I think the noble Lord will agree that he has set me a difficult task.
I think Lord Silkin's difficulty was the word "punishable", which is permissive. Could the noble and learned Viscount bear in mind some such words as "an offence punished by a sentence of imprisonment"? Because what Lord Silkin wants to avoid is where a man is accused of an offence which is punishable with imprisonment and does not in fact go to prison.
§ THE LORD CHANCELLOR
With respect, I do not think that would do. If you are going to deport someone, you may well think that if he is going to be cleared out of this country you will not send him to prison in this country. There might he other reasons. Equally, I think you might well want to get rid of a brothel-keeper, yet very few brothel-keepers are sent to prison for the first offence. So you get difficulties of that kind. But I will consider Lord Rea's suggestion with the others.
§ LORD SILKIN
I think I ought to "come clean" to the Committee and explain that on further consideration, for the reasons which other noble Lords have given—and I can assure them that I have gone through that process of thought myself—I have come to the conclusion that I cannot justify the language of the Amendment. But I am very glad that the noble and learned Viscount has accepted, if only by implication, the desirability of finding, if possible, language which would distinguish between the minor offence—for which nobody who is looking at this measure with some sympathy would desire to exercise the 502 right of deportation—and the more serious offence. I hope that the noble and learned Viscount will go on with his researches. I am bound to say that I think he is right in his grounds for rejecting the reference to the superior court. I am not sure about the analogy of the Aliens order—I do not like constant analogy—but I think that three grounds are quite enough, even if the fourth is not. So if he will try to find some means of achieving what I believe we both have in mind, I will do the same. In the circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.57 p.m.
§ The noble Earl said: I am well aware that the problem to which I shall allude has been very sensibly diminished by the enforcement of the Act of 1959. I expect to be told that very few, perhaps no, arrests have been made under that Act for some considerable period. On the other hand, I think it is known to most people acquainted with London that the elements of that problem still exist, and it must be anticipated that, in order to ensure the continued observance of the Act, arrests may occasionally have to be made in future. I hope they will, because it is one of the declared intentions of the Act that it should seek the reclamation of the young prostitute. When, therefore, a first arrest takes place, the social workers interview the arrested girl and urge her to make a clean break with her past and to adopt a more honest way of life.
§ In the case of a girl from overseas, it may be that the cleanest break she can make will be a return to her own country. There she will be looked after by good people among her own compatriots, helped to start a new life and protected from the bad associates whom she has known. Fortunate it is if the girl takes this advice and returns to her own country. But it is difficult for her. If your Lordships accept my Amendment you will be giving power to the magistrate, having heard all the reports, having heard what the girl has to say, having given to the question that close and care- 503 ful attention which the bench always does give to these personal problems, to say to the girl; "We are going to make your decision for you. We are going to recommend your deportation, purely for your own benefit—not as a punishment, but as the best way of dealing with you ". The recommendation goes to the Home Office and there is another opportunity for consideration. Finally, the deportation may take effect.
§ That seems to me to be sense, and a merciful way of dealing with a sad but not insoluble problem. But if this is not done, what remains? A girl, having rejected her friend's advice, pays her fine and goes back to the streets. She is more careful now and it may be some time before she is arrested again, but perhaps that second arrest comes and she will have another chance, which she is now very unlikely to take. Then she is arrested a third time, and this time she has earned the sentence of imprisonment. As I understand the noble and learned Viscount, this time you are going to deport her. Very well: but what are you deporting?—a hardened girl of whose reclamation there is very little hope.
§ You may say: "At any rate, we have got rid of a social problem from this country." I am not so sure. There is very little in the Act to prevent her from coming back. She could dye her hair and come back to this country. She could have another shot. Of course, she may be deterred by the threat of a further term of imprisonment for breaking her deportation order, but she may be very willing to chance that. Therefore I say that deportation for the third offence is not the good sense and the good sociology that would characterise a deportation for the first offence, such as I wish to see inserted in this Bill. I beg to move.
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR THE HOME DEPARTMENT (EARL BATHURST)
As he said, the noble Earl gave notice in Second Reading that he would move this Amendment and, if I may say so, he has moved it in most 504 reasonable and most considerate terms. I assure him that the subject of his Amendment has been most carefully considered by my right honourable friend, but I am afraid that, however desirable may be the case that the noble Earl has put to us so well, this Commonwealth Immigrants Bill cannot possess the scope of endeavouring to keep the young girl from overseas off the streets and so from becoming a prostitute. The intention under this clause is to enable us to deport a Commonwealth immigrant who abuses the hospitality and the advantages which this country offers. That is the penalty.
As a yardstick, as my noble and learned friend who sits upon the Woolsack has told us, the offence which has been committed must be one which is punishable with imprisonment; and in such cases the court may recommend deportation. I would point out to the noble Earl that, although a girl convicted of a third offence of this nature renders herself liable to imprisonment, that sentence need not necessarily be imposed; yet, even so, deportation may be recommended by the court. I do not know whether a particular girl would be more hardened as a result of the 1959 Act. I think that would be very arguable. But whatever else is certain, if we depart from the principle of liability to imprisonment it is quite certain that other grounds for departures from that principle will be found. The noble Earl has moved his Amendment in a most reasonable manner, but I much regret, for the reason I have given, that I cannot accept it.
§ THE EARL OF IDDESLEIGH
I will not, of course, press the Amendment further. But in withdrawing it I would venture to say that I have pointed out, in the course of my two speeches on this Bill, certain problems attending the immigration into this country of young Irish girls; and I do ask that the noble Earl will give that general problem very careful consideration. I am asking the noble Earl to do what he is very well equipped to do—that is, to sit down and think over the problems which I have mentioned, and similar problems. If he were to think of these matters with advantage he would no doubt do well to get from various departments of the Home Office, and from many 505 outside bodies, such as hospitals, local authorities and rescue societies, reports on the sociology of the Irish immigration. It would be a valuable service to collect a body of reports on this problem from those and other well-informed sources, so that when the statistical inquiry into the amount of Irish immigration—which the right honourable gentleman the Home Secretary has promised—is completed, a sociological study of the question may also be made. I beg your Lordships' leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 7 agreed to.
§ Clause 8 [Procedure and appeals in respect of recommendations]:
These are purely drafting Amendments consequential upon an Amendment made in another place, whereby the amount of notice which is given to an offender before deportation can be ordered is extended from three to seven days. I beg to move both of the Amendments standing in the name of my noble and learned friend.
§ Amendments moved—
§ Page 7, line 10, leave out (" three") and insert (" seven ").
§ Page 7, line 11, leave out (" three ") and insert (" seven ").—(Earl Bathurst.)
§ On Question, Amendments agreed to.
§ Clause 8, as amended, agreed to.
§ Clauses 9 to 15 agreed to.
§ Clause 16 [Immigration officers and medical inspectors]:
THE EARL OF LISTOWEL moved to add to subsection (3):
The power to give instructions under this subsection so far as they relate to the exercise of the powers conferred by section two of this Act shall be exercisable by statutory instrument and any statutory instrument setting out such instructions shall be subject to annulment by resolution of either House of Parliament.
§ The noble Earl said: We do not think that the important powers which the Home Secretary will exercise under Clause 2 of the Bill—the power to refuse admission, or to attach conditions to admission—which are, of course, the kernel of the whole Bill, should be exercised on Instructions which will be a purely administrative matter. We think that these Instructions should be subject 506 to the scrutiny and approval of Parliament, and that is the object of this Amendment. I beg to move.
Page 11, line 36, at end insert the said paragraph.—(The Earl of Listowel.)
§ 5.10 p.m.
§ THE LORD CHANCELLOR
I hope that, on reflection, and bearing in mind what has been said about the instructions, the noble Earl may feel that he need not press this Amendment. The decision to publish the instructions land their content has been generally welcomed, and the Amendment of the noble Earl would make it necessary for the instructions to take the form of a statutory instrument subject to Negative Resolution. I want to say again that the instructions, as noble Lords have seen from the White Paper, and as I think was recognised in another place, are not suitable for expression in legal form. I hope we shall agree upon that as a starting point. Naturally, I am not predisposed against legal form, but I do say that, in this case, if the instructions had to be expressed in legal form they would be less useful, first, as a guide to the immigration officer, and, secondly, as an indication to immigrants of the Government's general policy.
The second point is flexibility. It is likely that the Government will need to modify the instructions and alter them from time to time, or to amplify certain paragraphs. May I give the noble Earl a particular example? We may wish to amplify the instructions given in paragraph 14 regarding the admission of trainees and apprentices under sponsored schemes, such as those of the Colombo Plan. I mention that because I know it is very near the noble Earl's heart. We may wish to make minor changes in the categories of persons coming for certain types of specialised employment without vouchers. If the noble Earl will be kind enough to look at paragraph 21 of the White Paper he will see set out a number of categories that do not require vouchers. These arrangements have to be carried out at short notice, and I hope that, on reflection, the noble Earl will have sympathy with my right honourable friend's own words, that it would be "cumbrous and tiresome" to 507 have to make a statutory instrument every time such an amendment was made.
There is also another objection: that the Amendment would require all instructions to immigration officers about the exercise of their functions under Clause 2 to be published. I know the noble Earl's immediate reaction to that is to be surprised that I should put it forward as an objection, but he will realise that some of these instructions relate to the treatment of individuals—for example, about the refusal of individuals on grounds of criminal record or security—and I think he will agree that it is obvious that instructions of this type, by their very nature, are unsuitable for publication. Again, I must be very careful not to breach the ruling of your Lordships' House, and I shall therefore not quote anything. But I think I can go so far as to say that if the noble Earl pursues diligently the debates of another place, he will find that there was considerable and influential feeling in quarters of his own Party as to the desirability of applying a statutory instrument to the whole range of difficulties that arise. I think that is just on the right side of the line with reference to debates in another place.
There is another aspect of the matter with which I should like to deal because I am sure the noble Earl had it in mind: the argument that, unless the Amendment is accepted, Parliament will not have adequate opportunity of considering the content of the instructions and will not know when they have been changed. The content of the instructions has already been debated in the course of the proceedings on the Bill, and my right honourable friend the Home Secretary has undertaken that the details of the present draft instructions will be looked at again in the light of any further points brought to notice. He said on February 27—and I quote [OFFICIAL REPORT, Commons, Vol. 654 (No. 64), col. 1164]:When that has been done we shall finalise the instructions, and if it is the wish of the House we can make those available as well ".My right honourable friend has also undertaken that any considerable amendments to the published instructions that may later be made as a result of experi- 508 ence of operating the control will be available to Parliament by whatever method is found convenient. I can repeat these assurances. They meet the legitimate concern that both Parliament and the public should have assurance that the control will continue to be operated in the liberal way which the White Paper envisages.
I think the noble Earl will appreciate that this Amendment has no relevance to the question of employment vouchers which are issued by the Minister of Labour, or to the numbers, which will be a Governmental decision. But I do want to assure him that there is no desire to keep anything back. I think the change or, if I may so put it—I do not want to exaggerate—the diminution of hostility to the Bill which has been shown in the later stages has turned very largely on the fact that my right honourable friend decided to publish the instructions and then let everyone judge, in the light of them, how the Bill will be carried out; and I can assure the noble Earl that my right honourable friend has no intention of departing from that policy.
§ THE EARL OF LISTOWEL
I am much indebted to the noble and learned Viscount for his very painstaking reply to my Amendment, and I am entirely satisfied by what he has said about the inappropriateness of putting the instructions into a statutory form. I am very glad to have the assurance which he gave, repeating the substance of what was said by the Secretary of State in another place, and I should particularly like to take advantage, if I might, of the first assurance. I think the words of the right honourable gentleman, which were quoted, were to the effect that, if it were desired by the House, the final version of these instructions (which will, of course, take into account what has been said in both Houses, and also, of course, will not be published until after the Bill has passed into law) will also be published. I should like to say here that it is certainly the desire of those on this side of the House, and I think it would be the desire of those noble Lords opposite who have taken part in these discussions, that the final version of the instructions should be published and available for all of us to study. The second assurance, which I was glad to 509 have, was that any major Amendment to the instructions in time to come would also be published. Let me say how grateful I am to the noble and learned Viscount for these assurances, and, in the light of what he has said, I beg leave to withdrawn my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 16 agreed to.
§ Clause 17 agreed to.
§ 5.20 p.m.
§ THE EARL OF LONGFORD moved, after Clause 17, to insert the following new clause:
§ Additional Exemption arising from Service in Second World War
§ " . The provisions of this Act shall not apply to any Commonwealth citizen who served in the second world war or whose parents, brothers or sisters served, were wounded, maimed or killed in the said war."
§ The noble Earl said: This Amendment was discussed in another place, but owing to the guillotine I think the discussions were cut short. I am not saying that, in its present form, it is one on which we should wish, in the last resort, to divide; it may be felt that it goes a little wide. Therefore, before indicating our final attitude, I should like to know to-day—indeed, I am sure we should all like to know—whether there is any prospect that any clause of this kind will be accepted by the Government. Obviously, without a clause of this kind one must assume that some of the people mentioned here, who had either served in the Second World War or been in some way connected with service in the war, will be excluded. I do not know whether they will be many or few, but the object of this Bill, to which we object so much, is, in certain circumstances at any rate, to exclude some people, and without some clause of this kind some of the people I have mentioned will presumably be excluded. We object to the whole idea of excluding anybody from the Commonwealth, and therefore we object to the exclusion of any of these people.
I am not saying that we must take our final stand on the precise wording, or on the full categories mentioned here. I hope that a good deal of sympathy will be shown for this clause. I notice that in the Instructions to the immigration
officers (paragraph 38) we find this wording:
When an Immigration Officer is dealing with a case falling within his discretion, he should resolve any doubt (unless there are compelling reasons to the contrary) in favour of an applicant who can satisfy him that he has served in the Armed Forces of the Crown in war.
There, in effect, we are assured that the immigration officers are to show special favour to the first category mentioned in our Amendment—those who actually served in the war. In fact, the immigration officer, I am glad to see, is advised to go a little further, because he is advised to pay attention to their needs if they served in any war, and we have referred only to the "Second World War". Therefore in that sense the immigration officer is being asked to improve on our suggestion, and I am grateful for that idea.
§ Accordingly, if we assume that the Government are highly sympathetic to the first part of the clause, I should like to urge on the noble Earl, Lord Bathurst, who is to reply, and the Government, that they put it in the Bill. I cannot see in this case why it should be excluded from the Bill, and it seems to me that the psychological effect will be very much better if it is in the Bill than if the Bill is merely left as it is now. Even though I agree that the noble Earl could think of some cases mentioned in the second part of our Amendment which seem a little wide, I hope be will not necessarily stop short with the first part of the clause. I hope he will at any rate agree to-day to look at the whole thing sympathetically. In that case, we could do no better than return to a discussion of this clause at the next stage, when the noble Earl and his colleagues have had time to consider our suggestion. I beg to move.
After Clause 17, insert the said new clause.—(The Earl of Longford.)
§ LORD SHEPHERD
I should like to support my noble friend in this Amendment. Like him, I should not expect the Government to take the clause except as it is on the Paper. I think, in honesty, it perhaps goes too far, but I should have thought that a great case had been made out for Servicemen who have served the country in war. Let us remember our 511 Common wealth, and particularly our colonial, people who served in the last war as volunteers and not as conscripts; they voluntarily gave their service to their King in war. I should have thought that, if there were to be any exclusion from the provisions of this Bill, these people warranted it. I think I agree with my noble friend that I would include in that exclusion from the Bill the parents of those persons of the Commonwealth who died in the war. These people have a great affection, obviously, for their lost sons, and if there is hardship and they wish to come to this country, then we should not stand in their way.
Having said that, however, I come to the Draft Instructions. Personally, I should like to go a little further. I think there is a case for the person who served during the war, but the war was many years ago. We are to-day enlisting, calling for volunteers in our Colonies and in the new Commonwealth to come and join our Army, in many cases to serve in Europe. I should have thought that if we are calling upon these people to serve their Queen and to come and give service, there is a case for them to be specifically excluded from the provisions of the Bill.
I do not stand on the words of the clause. I ask the Government whether they will accept the general principle that a person in the Colonies or in the Commonwealth who has voluntarily given service to his King or to his Queen, shall be treated as he always has been treated, and not be excluded or require special provisions in order to come to this country. The Government should recognise the justice of the case I have tried to make, and I ask them to accept it.
§ LORD DERWENT
I hope Her Majesty's Government will have nothing to do with a clause of this kind. I entirely agree with the Instructions to the immigration officers that, if somebody can prove he has served in the Forces, he should be admitted if possible—that is virtually what the Instructions come to. I agree with the noble Earl, Lord Longford, that the second part of his Amendment is far too wide. There is no particular reason why sisters or brothers of somebody who has served in the 512 Forces should be admitted. As his Amendment is drawn, it would be perfectly possible for a Chinaman from Singapore to come here and say: "I am entitled to come in because my brother served in the Japanese Army". Clearly, the second part of the Amendment is too wide from every point of view; it merely says "serves … in the said war".
The first part of the Amendment I think is also far too wide. It says:The provisions of this Act shall not apply to any Commonwealth citizen who served in the second world war …A Commonwealth citizen who has served in the Forces and who comes here with T.B. and a long criminal record must be admitted if any Amendment of this kind is inserted in the Bill. It does not matter what other clauses are in the Bill; they are washed out so far as that particular man is concerned. It seems to me that the only way in which you can control these matters is by having immigration officers and Instructions, and that any Amendment you put down will be far too wide. I hope Her Majesty's Government will not consider any Amendment of this kind.
§ LORD STONHAM
Despite what the noble Lord, Lord Derwent, has said, I hope that Her Majesty's Government will seriously consider in particular the plea made by my noble friend Lord Shepherd. Personally, I agree with everything which has been said about this suggested new clause: it is far too wide, and may let in even Lord Derwent's hypothetical Chinese. I find it impossible to see how anyone could argue against the exclusion from the provisions of this Bill of anyone who has served in the Armed Forces of the Crown. I think that that is the proper expression. It is not a question of whether or not they served in the Second World War or the First World War, or in any of the skirmishes in between or since; if they were regarded as fit and proper persons to wear the uniform, then they should be regarded as fit and proper persons to come into this country without question. I submit that that is the question to which Her Majesty's Government should address themselves. I hope that they will wholly disregard the point of the noble Lord, Lord Derwent, about the possibility that such a person could be diseased, because that has no signifi- 513 cance whatsoever. As the Bill now stands, persons who have resided here before can be readmitted though they may be diseased, and the immigration officer cannot do anything about it. If the immigrant has served in our uniform, we should say that he is welcome to come in, without let or hindrance.
§ 5.32 p.m.
Straight away I am going to tell the noble Earl who moved this Amendment that I have the greatest sympathy with everything he said and with the ideals behind his remarks. He has told us that a similar Amendment was debated at great length in another place, and I am sure that the noble Earl has read the sympathetic statements made by my right honourable friend the Secretary of State. Having made clear my sympathy with the principle of the Amendment, I would add, though without his severity of tone, I wholeheartedly agree with what my noble friend Lord Derwent said. If this Amendment were agreed to, it is obvious that a coach-and-horses could be driven straight through the loophole that would be opened up in the Bill. I assure the noble Earl that a bona fide ex-Service man will be able to come into this country perfectly well. There will be no hindrance to him.
If the noble Lord will wait one moment, I will explain the position there. I am speaking about the bona fide ex-Service man. There are special provisions, whch have been referred to by my right honourable friend in another place, which I think will work better than those which the noble Earl would like to see inserted by his Amendment. As has already been mentioned, there is a direction in paragraph 38 of the Instructions that, other things being equal, the immigration officer should resolve any doubt in favour of the bona fide ex-Service man. In regard to employment, if a man without any other qualifications can show that he is a genuine ex-Service man, he will be given priority under Category C. I suggest to the noble Earl that if a genuine ex-Service man from the Commonwealth wishes to come and live 514 here, and to take advantage of what this country can provide, the fairest and best way is for him to apply for a voucher under Category C, if he is not eligible for one of the other two categories and he will receive immediate priority.
There is another Instruction which my right honourable friend the Minister of Health has given to his inspectors, but which I do not think has been mentioned so far. His inspectors are being instructed not to refuse admission on medical grounds if proof can be shown that an illness or disability from which an applicant is suffering resulted from war—not the war, but war. I think that that goes a considerable distance in helping those who suffered in war.
We feel that the immigration control cannot be varied for relatives of ex-Service men. I do not think it possible for the relatives of an ex-Service man, who may or may not exist, to prove that he did, in fact, give service to the Commonwealth. And supposing that the principle could be agreed, for how long should he have served; and in what sort of post? And what about civilians, many of whom did just as great service as the men and women in the Forces? This whole question raises many problems, and I would ask your Lordships to reject the Amendment. I assure you that the Instructions and the Bill will be worked with the greatest humanity. Certainly we appreciate fully the gallant service to the Crown given by Commonwealth ex-Service men and women.
§ THE EARL OF LUCAN
I think that my noble friends have been considerably disappointed by the noble Earl's reply, and we shall have to consider returning to this subject at a later stage of the Bill. One or two points have occurred to me, and the noble Earl may be able to clear them up. He said that exemption such as this would leave much too big a loop-hole in the Bill. But, of course, there is already exemption under Clause 17 (1). If it is possible to exempt everybody with diplomatic immunity, surely the classes to which exemption is given could be widened. Indeed, Clause 17 (3) gives that power to the Minister.
Is it not possible for the Minister, under Clause 17 as it stands now, to make exceptions by order on the lines 515 of the case we have been making? I have certain reservations about it, because now, in 1962, service in time of war is really a matter of age. It is seventeen years since the end of the Second World War, although there has been fighting in Malaya and elsewhere since. It is a fact that no young man can possibly claim service in the war. But many young men in the Commonwealth have served the King and the Queen in different Armed Forces. And others have served this country, not in the Armed Forces but in the Merchant Navy. What about all the men from the colonial territories—many of them lost their lives—who have served in the Merchant Navy? These men, surely, deserve some special consideration. I do not know whether my noble friend is inclined to withdraw this Amendment, but for all these reasons, I feel that we shall want to give it further thought and return to it at a later stage.
§ LORD SILKIN
I have only a word or two to say. I should like to emphasise that we are dealing here with people who volunteered for service; they had no obligation to serve and were not conscripted. I think they deserve special consideration. The noble Earl who replied referred to paragraph 38 of the Instructions, and I rather gathered that he thought that was conclusive. But all that does is to tell the immigration officer, in dealing with a case falling within his discretion, thathe should resolve any doubt (unless there are compelling reasons to the contrary) in favour of an applicant …".That is very far from the way in which the noble Earl interpreted this. He rather assumed that, unless there were special reasons, it was almost automatic that he would be admitted. That is not how I read it. At the worst, if the Government are not prepared to do anything else, I think this Instruction ought to be altered to make it more in conformity with what the noble Earl declared it to mean. I am sure the noble Earl will agree that there is a wide difference between the normal construction of this paragraph and what he said. The noble and learned Viscount the Lord Chancellor said earlier that we must not read these Instructions like an Act of Parliament. I hope I am not 516 doing so, but there is an implication here that it is much more doubtful than we were led to believe.
§ LORD SHEPHERD
I hope the noble Earl will give us some satisfaction on this matter, but in case he does not, may I ask him if he will again look at the Instructions that will be issued to the immigration officers? First, of all, what is meant by "war"? Does it mean the action that took place in Malaya, or in Kenya against the Mau Mau? Could we have some other word?—because war is war, and it was never recognised as such in Malaya or Kenya. I would ask the noble Earl to go one stage further in the definition of "Armed Forces". In Malaya (I speak from personal experience) we had many thousands, all now Commonwealth citizens, who volunteered and played their part in the police force. They were not soldiers in the sense of being soldiers of the Queen, but they played an identical part to that of a soldier, except that they wore a different uniform and cap badge. I wonder whether, in considering the definition of "Armed Forces", he will have in mind a definition that would embrace all those persons throughout the Commonwealth who have voluntarily given service to this country.
I think I should start by replying to the noble and gallant Earl, Lord Lucan, who asked me whether it was possible for my right honourable friend to make a further class for immunity from the provisions of the Bill. Of course he can do that. But there is this difficulty: that a diplomat has a passport and identification cards, and is a known man. In this respect he is quite different from somebody who claims to be an ex-Service man.
We shall have difficulty in not being able to find the records. That is the reason for putting this provision for ex-Service men in the Bill. I can assure your Lordships that the genuine ex-Service men, who can prove his status with his records, will find no difficulty.
With regard to what was said by the noble Lord, Lord Silkin, on the question of doubt, again the whole point of 517 this particular clause is to make quite certain that there is as little doubt as possible in relation to ex-Service men. Normally they will be in category C. We envisage that there may be a case of somebody coming in without a voucher, and that will be one cause of doubt; and whether the details given are true could also be a matter of doubt. But if he can prove that he is a genuine ex-Service man, and has suitable records, then the immigration officer is instructed accordingly in paragraph 38 of the Instructions.
§ LORD SILKIN
With all respect to the noble Earl, I disagree with his interpretation. This doubt arises when a person can satisfy the immigration officer that he has served in the Armed Forces of the Crown. It does not arise if he does not satisfy the immigration officer. The immigration officer is not asked to give the immigrant the benefit of the doubt as to whether or not he served in the Forces; he begins to exercise his doubt after he is satisfied that the person is an ex-Service man. I will just read the paragraph. It says:When an immigration officer is dealing with a case falling within his discretion, he should resolve any doubt (unless there are compelling reasons to the contrary) in favour of an applicant who can satisfy him that he served in the Armed Forces of the Crown.The immigration officer has to be satisfied that a doubt arises, and he then exercises that doubt in favour of the immigrant unless there are special circumstances. Really, that is snot good enough.
With respect to the noble Lord, surely the doubt in this case will come first. When there is doubt, the immigration officer will have to make up his mind one way or the other. But if the man can prove to the officer's satisfaction that he served in the Armed Forces of the Crown, then the doubt will be resolved in his favour. That is the way I read it. However, I will certainly look at the paragraph again and seek some advice on it; or possibly my noble and learned friend the Lord Chancellor would like to give further information to the noble Lord now.
§ THE LORD CHANCELLOR
We do not want there to be any ambiguity on this point. As I understand it (I hope this is right), if the immigrant satisfies the immigration officer that he served in the Armed Forces of the Crown, then on all the matters outside the labour voucher the position is this. In the case of a student, for example, when the immigration officer cannot be satisfied how many hours the prescribed course is going to take he puts a beneficial construction on the matter and says, "I think it is enough to show that he is a person coming in for education," even though he may not be satisfied that it is for more than seven or eight hours a week. That applies to every matter that raises a doubt on every field outside the voucher. What we want is to ensure that any doubt will be resolved in his favour. With a voucher, the man must show that he has it, so that there cannot be any doubt about that—he either has a voucher or he has not.
As my noble friend Lord Bathurst said, my right honourable friend the Minister of Labour announced—and your Lordships can look at it in Column 710 of the OFFICIAL REPORT, Commons, of February 22:… that all applicants in category C who can show that they served in Her Majesty's Forces in war will be granted priority in the issue of vouchers.So in the next field he is given priority. A third matter which is of considerable importance is that no one should be refused admission on medical grounds arising from a war wound. My noble friend was announcing that for the first time.
I think these beginnings are sufficient earnest of our intention, but we will certainly look at the points of the noble Lord, Lord Shepherd, with regard to the Armed Forces and war. This is drafted in the colloquial sense, I should have thought, and means when there was fighting in the field. I certainly never thought it could possibly exclude the Malayan or the Mau Mau operations, although there are purists who say that the trouble in Korea was not a war be-because it was fought by the United Nations. We will look at that matter, because the noble Lord raised important points.
§ LORD SHEPHERD
Would the noble Viscount think of the persons who are now volunteering into our Forces? They will not be serving in war, whatever the interpretation.
§ THE LORD CHANCELLOR
I will certainly look at it. That is a slightly different point: those who have not been" serving for war in the colloquial sense. With regard to the first point, that it should include those who joined up for a fighting war, whether they fought or not is just luck. They might have been L.O.C. or doing a base job, and may not have been in the actual fighting. But if they joined up for any one of these things then, in my view, they ought to be included, and I will certainly have that point looked into.
§ THE EARL OF LONGFORD
I am grateful to the noble Earl, Lord Bathurst, for his expression of sympathy at the beginning, but apart from that I am sure he will forgive me for saying that we were all disappointed with his reply. I am sorry to have to say that to him, because I know how anxious he is to be helpful in these matters.
The noble and learned Viscount, the Lord Chancellor, indicated that he was going to look at certain matters again, and I think the noble Earl said something of the same kind. I gather that that is in reference to the Instructions given to the immigration officer. So far as I know, we have not been given any encouragement to think that the Government will consider the possibility of putting down any clause of this sort. The noble Earl, Lord Bathurst, was very definite to that effect. In the circumstances, we should normally divide the House, because we take this matter very seriously, but as our own Amendment is not perfect, even in our own eyes, I think it would be rather hard to ask the House to vote on this precise Amendment. I still hope that wiser counsels will prevail and that the Government will put down some Amendment of their own which will meet the main points, in addition to revising the Instructions to the immigration officers. Whatever the Government do—and I hope they will have second thoughts—we will certainly put down some clause of this sort at the next stage, and I should be 520 very much surprised if we did not divide upon it.
§ On Question, Amendment negatived.
§ THE EARL OF LONGFORD
I was really trying to withdraw the clause, but I have been overtaken by events.
THE CHAIRMAN OF COMMITTEES (LORD MERTHYR)
I beg the noble Earl's pardon. I did not hear him say he was withdrawing the Amendment.
§ Clauses 18 to 21 agreed to.
§ First Schedule [Supplementary Provisions as to Control of Immigration]: