§ 7.32 p.m.
§ LORD STONHAMMy Lords, I hope it will be convenient if, with your Lordships' permission, I speak to the next four Orders in one speech, and then after debate move them separately. These four Orders are distinct from the three with which my noble friend Lord Champion has just dealt, in that they deal not with produce but, in various aspects, with persons. The one that I now move, the Southern Rhodesia (Property in Passports) Order, 1965, and the two next Orders on the Order Paper, when they were considered by the Special Orders Committee were found 1117 to be Orders which can be passed by the House without special attention.
The Committee thought that they were distinct from the Southern Rhodesia (Fugitive Offenders Act 1881) Order, where they thought it was incumbent on the Government to show whether the proposed action was desirable and effective. It is the view of the Special Orders Committee that that Order cannot be passed by the House without special attention. I hope that that will enable me to deal with the first three Orders briefly, though I trust adequately, and with the last of them in somewhat more detail in order to satisfy the comments of the Special Orders Committee.
With regard to the Property in Passports Order, the Government repudiate passports issued by the illegal régime in Southern Rhodesia, and if and when they come to official notice in the United Kingdom wish to have such passports impounded. A British passport is issued in pursuance of the Royal Prerogative and remains the property of the Crown. A duly authorised person may therefore impound such a passport. A document purporting to be a passport but issued on or after November 11, 1965, by the illegal régime in Southern Rhodesia, is only a document issued by private individuals, and could not, but for this Order, be impounded in the United Kingdom. This Order enables this document, this piece of paper, to be impounded by immigration officers, constables or other designated persons, if authorised by or on behalf of the Secretary of State.
The Order came into force on November 18, and authority to impound passports within the meaning of, and issued as mentioned in, Article 1 has been given for the purposes of Article 2 to all immigration officers; to all members of police forces in the United Kingdom; and to appropriate officials in the Government Departments concerned. An impounded passport will be sent to the Passport Office in London and, on request, will normally be replaced by a United Kingdom passport valid for six months in the first instance. If, however, there is good reason to believe that the holder is actively supporting the illegal régime in Rhodesia, the replacement may be a travel document valid only for his journey home to Rhodesia.
1118 We realise that the illegal régime in Southern Rhodesia may purport to extend the validity of a Rhodesian passport properly isued before November 11 this year. The Government would repudiate such passports. They are, however, true passports (though the purported extension would have no legal validity) and may therefore be impounded, under the Royal Prerogative, by a duly authorised person. Again, immigration officers, constables and the appropriate officials have been duly authorised for the purpose. The powers conferred by the Order do not extend beyond the United Kingdom; but we hope that most overseas Governments will deny recognition to the passports that we repudiate, so that Rhodesia citizens outside Rhodesia will be compelled to seek replacements from British posts in the countries in which they find themselves. It would be a condition of the issue of a United Kingdom passport that the repudiated document was surrendered.
I hope that that makes the position on that Order sufficiently clear and I pass to the second Order, which is the Southern Rhodesia (Commonwealth Immigrants Act 1962) Order 1965. This Order is needed for entirely technical reasons. It ensures that a Rhodesian citizen who is subject to immigration control under the Commonwealth Immigrants Act, 1962, is not exempted from that control merely because his passport has been issued or replaced by the Foreign Office in pursuance of the arrangements introduced as a result of the situation in Rhodesia.
The position is that Section 1(2) of the Commonwealth Immigrants Act, 1962, exempts from immigration control under Part I of the Act, any person who holds a United Kingdom passport issued in the United Kingdom or the Republic of Ireland. Section 1(3) provides that "United Kingdom passport" means a passport issued by the Government of the United Kingdom, not being a passport issued on behalf of the Government of any part of the Commonwealth outside the United Kingdom. For the present, Rhodesian citizens are to have passports issued or replaced by the Foreign Office as occasion arises. These passports will not be issued on behalf of a separate Rhodesian Government—because they are United Kingdom passports—and, but for this Order in Council, 1119 would exempt the holders from immigration control under the Act. I hope that the purpose of this Order is clear to noble Lords. As I said, it is a purely technical one.
The third Order which I wish to move is the Southern Rhodesia (British Nationality Act 1948) Order, 1965, which is one of a number of steps which are being taken to facilitate the acquisition of citizenship of the United Kingdom and Colonies by citizens of Southern Rhodesia who remain loyal in the present crisis. It is therefore an Order which I am sure your Lordships will agree is highly desirable and necessary. These steps were outlined by the Prime Minister in replying to the debate in another place on November 12. Some steps fall within the exercise of administrative discretion, but the subject of the present Order requires an alteration of the law. The effect of the Order is to revive, in relation to citizens of Southern Rhodesia, Section 12(6) of the British Nationality Act 1948, as amended by Section 3(1) of the British Nationality Act 1958. This provision, in its relation to the Commonwealth generally, expired at the end of 1962, but by the South Africa Act, 1962, it was continued until the end of 1965 in relation only to citizens of South Africa. The same facility is now, by this Order, extended to Rhodesians for so long as the Order is in force.
Thus, a citizen of Southern Rhodesia will be qualified to apply for United Kingdom citizenship under this Order in Council if he fulfils the following conditions. First, that he was a British subject before January 1, 1949, when the British Nationality Act 1948 came into force. Second, that he is descended in the male line from a person born or naturalised in the United Kingdom and Colonies or is connected by birth or ancestry with the territory now forming the Republic of Ireland. Alternatively, he may qualify if he was naturalised before January 1, 1949, in Southern Rhodesia or some other country which was then in the Commonwealth. A third condition is that the applicant intends to make his ordinary place of residence within the United Kingdom or Colony. Finally, the Secretary of State (or, in a Commonwealth country other than Southern Rhodesia, the High Commis- 1120 sioner) will have to be satisfied that it is fitting, by reason of his close connection with the United Kingdom and Colonies, that he should be granted its citizenship. Thus, the Order in Council provides a means by which Rhodesians connected with this country who wish to demonstrate their loyalty to the United Kingdom can acquire our citizenship without fulfilling the normal requirement of prior residence in this country.
I now come to the fourth Order which I submit for your Lordships' approval, the Southern Rhodesia (Fugitive Offenders Act 1881) Order 1965. This is the Order on which, as I have said, the Special Orders Committee considered that the Government should show "whether the proposed action is desirable and effective"; and they express the view that the Order "cannot be passed by the House without special attention."
The purpose of this Order is to ensure that a fugitive offender shall not be returned to Rhodesia, under either Part I or Part II of the Fugitive Offenders Act 1881, unless the Secretary of State or, in the case of a British possession, the Governor, is satisfied that it is not inexpedient that the fugitive should be so returned, having regard to any circumstances which may result from the unconstitutional action which has been taken in Rhodesia. As your Lordships are probably aware, the significant difference between Parts I and II of the 1881 Act is that under Part I a person for whose return an application is received from another Commonwealth country must be brought before a magistrate, who is required to consider, under Section 5 of the Act, whether there is a prima facie case against him. If so, he is committed into custody, pending the decision by the Secretary of State (or the Governor, as the case may be) to issue a warrant, under Section 6 of the Act—and I quote—
if he thinks it just",ordering the fugitive to be returned. The fugitive may not be so returned, however, if, under Section 10 of the Act, it is made to appear to a superior court that, by reason of the trivial nature of the case, or because the application has not been made in good faith, in the interests of justice or otherwise, and having regard to all the circumstances of the case, it 1121 would be unjust, or oppressive, or too severe a punishment to return him.Under Part II of the Act, on the other hand, which applies only to countries which are grouped together by Order in Council—and, my Lords, it is important to remember that Rhodesia is grouped with the Dependencies of Bechuanaland, Basutoland, Swaziland, Aden and Mauritius—the surrender of a fugitive can be secured simply on the basis of a warrant, backed by a magistrate in the country from which surrender is sought, without the establishment of a prima facie case. The discretion of the magistrate not to return, under Part II of the Act, is limited by Section 19 to circumstances similar to those set out in Section 10; that is, where it would seem unreasonable to do so having regard to the comparative triviality of the offence, or because the application has not been made in good faith in the interests of justice or otherwise.
My Lords, the Government have come to the view that the existing discretions not to return would not be adequate in the light of the present situation in Rhodesia, and possible further developments. It has been thought right, therefore, to ensure that wanted persons need not be returned to Rhodesia for political offences, or in circumstances where they might be the subject of political action after surrender, or indeed in any other circumstances in which it would seem in any way inexpedient to send them back. I think that is a sufficient answer to the question as to whether the action proposed by this Order is desirable.
Your Lordships will note that the Order, in effect, imposes an embargo on return unless the Secretary of State, or the Governor, is satisfied that return would not be inexpedient. The Government, however—and it is as well to point this out—have thought it right, at least in the first instance, not to impose a complete embargo because, while the courts in Rhodesia continue to operate satisfactorily—and the House will be aware of the statement by the Chief Justice of Rhodesia, Sir Hugh Beadle, on November 13 that:
the Judges of the High Court will continue to perform their duties in accordance with the law"—it would be undesirable to place ourselves in the position of being unable to 1122 surrender habitual or vicious non-political prisoners to Rhodesia, or to obtain their return from there.So far as the United Kingdom is concerned, there has been no application for the return of offenders from Rhodesia in the last twelve years, and we have received only seven applications from them; but, obviously, in the existing abnormal circumstances the number of cases which might be the subject of an application could conceivably increase. Moreover, this matter is of special importance to Bechuanaland, which has a long common land boundary with Rhodesia, and where it is, in consequence, desirable to secure, for as long as it remains possible to do so, that neither of the two territories should become a haven for the criminals of the other. It seems right, therefore, in this Order, to leave the door open. But, even so, the situation in Rhodesia might so develop that it rendered the return of any offender inexpedient, and in such circumstances the return of fugitives to Rhodesia would, in effect, be suspended. My Lords, that is the background and the reason for the Order. I would now briefly explain its details.
Article 1 conveys the additional discretion to the Secretary of State, in the case of applications made for the return of fugitives from the United Kingdom, or the Governor, in the case of a colonial territory, to consider, before he orders the surrender of a fugitive to Rhodesia, whether the circumstances of the case, and the conditions there, are such that it is not inexpedient to return him. By virtue of paragraph (2) of the Article, this power may be exercised even if a warrant of surrender was issued before November 16 but the fugitive had not then been returned under it before it became apparent that circumstances in Rhodesia had become such that he should not be returned.
Article 2 provides that where an order is made by a magistrate, under Part II of the principal Act, to return a fugitive offender on the basis of a backed warrant, return shall not be effected until the Governor of the territory has satisfied himself that it is not inexpedient to take such action; and should it be inexpedient, he may, under paragraph (2) of the Article, order the prisoner's discharge.
1123 Article 3 makes special provision in relation to rendition from Basutoland. By reason of the definition of "the Governor" in Section 39 of the 1881 Act (which definition is adopted under Article 4(2)), read with that Colony's Constitution, the question of the expediency of a fugitive's return from Basutoland to Rhodesia would, under Articles 1 and 2, fall to be made by the Paramount Chief. Article 3 provides, instead, that this question should be considered by the British Government Representative in Basutoland, who is more appropriately placed to operate a quasi-political discretion of this kind.
Article 4 deals merely with the interpretation of the Order, and Article 5 provides for its coming into operation with effect from November 16. The House will appreciate that this was necessary as the circumstances in Rhodesia at that time suggested that a fugitive offender whose return was already under consideration, or had been ordered, should not be returned.
My Lords, I have tried to be brief, but to explain these Orders as clearly and as explicitly as possible. I shall be glad after the debate to answer any point that I have not yet made clear. I beg to move that the first of these Orders be approved.
§ Moved, That the Southern Rhodesia (Property in Passports) Order 1965 be approved.—(Lord Stonham.)
§ 7.54 p.m.
§ LORD DRUMALBYNMy Lords, we are grateful to the noble Lord for explaining these four Orders so carefully and clearly. As he says, these are Orders which affect persons, which affect individual rights, and I think we should be failing in our duty if we did not examine the effect of them on individuals. I should therefore like to ask one or two questions arising out of them. Taking the Southern Rhodesia (Property in Passports) Order, first, could I ask these questions? When the Order says "may", does it mean "shall"? If the noble Lord will look at the Order he will see that the passport
may be dealt with within the United Kingdom as though it were the property of Her Majesty's Government therein and, accordinglymay, if so authorised by or on behalf of the Secretary of State, take and retain possession of such a passport;".
- (a) an immigration officer;
- (b) a constable, or
1124 - (c) any other person … by or on behalf of the Secretary of State,
As I understood the noble Lord, what is here proposed is that those who come to this country with such purported passports will still be allowed to enter, although their passports are not recognised. I hope I may be right in that. If that is so, it seems that the passports are to be impounded and are to be replaced, the noble Lord said, by a United Kingdom passport valid for six months. Why is it that in all cases (except in the special case he mentioned of what one might call a rabid Smith supporter) they are to be replaced by a United Kingdom passport? I am not quite certain how that test is going to be applied. Perhaps he ought to say a word or two about that. Why should it not be dealt with under the powers of the first Order with which we dealt this afternoon, the Constitution Order? Why should it not be possible for a Rhodesian passport to be issued under those powers rather than a temporary United Kingdom passport?
The next question I should like to ask is: What happens when a Rhodesian passport issued before November 11 expires? I should like to ask that, first in so far as it may concern anybody in this country. In that case, is it possible for that passport to be extended by the British Government? I am speaking about a valid passport. Could it not be extended by the Secretary of State under the powers given in the Southern Rhodesia (Constitution) Order? Or will the Rhodesian passport also be replaced by a United Kingdom passport? In the same way, if it so happens that the holder of the passport is abroad at the time, will the British Embassy in question be empowered to extend the passport or will that passport again be replaced by a temporary United Kingdom passport? There appears to be rather a difficulty here; and this is where the first three Orders tend to interact.
The third Order provides for those entitled to obtain British citizenship under Section 12(6) of the 1948 Act. They obtain British citizenship and, therefore, at the same time, they obtain a United Kingdom passport. I take it that 1125 those people are, so to speak, absorbed into the British life and become in every way British subjects. It is not clear how these two sets of Orders are to interact. Each is to have a United Kingdom passport; but one is to have a United Kingdom passport valid for six months only. In the type of case I was talking about, where a passport expires and has to be renewed at a British Embassy abroad, it is important to see whether the person concerned could also, if he is so entitled under the third Order, be given full British citizenship and not just a United Kingdom passport. One wants to see how this is going to work out in practice.
Then again, the Orders seem to interact also when we are considering the Commonwealth Immigration Order, and it is, of course, quite reasonable that somebody whose passport has to be renewed, either because it has expired or because it was issued by the Smith régime, should not thereby escape the provisions of the Commonwealth Immigration Act. That is perfectly clear. But what I want to know also is whether those who acquire citizenship under the third Order will be subject to the second Order. This is not clear. I am not certain it is clear in the Order, either. I am sorry to raise this technical matter, but I want to see how it affects the individual in practice.
My Lords, I wish only to make a plea that, in operating these first three Orders, it will be done with the utmost humanity and the utmost sympathy so that there will be the minimum of inconvenience to individuals. From what the noble Lord has said, I think that he has answered one question I had in mind. The point is that, under the operation of these three Orders, it is not the intention that anyone will be left documentless, passport-less. Even in the extreme case of a Smith supporter coming in with a "Smith" passport, he, I understand the noble Lord to say, will receive a travel document which would be sufficient to get him back again. I wish to be quite certain that no-one is to be left without a passport. I am thinking of the case of someone coming into this country with a "Smith" passport who is given a United Kingdom passport for six months, which will enable him to travel around, if necessary, on business in foreign countries and which will be 1126 wholly acceptable. One hopes, of course, that this provision will not need to last for more than six months; perhaps one cannot see further than that period at present, although one might ask why a period of six months has been chosen.
To turn to the fourth of the Orders, the Fugitive Offenders Order, I am not clear about where the request for the return comes from. Am I right in thinking that it comes from the judicial authorities in Rhodesia in such a case, and does not come from the Executive? If it came from the Executive, I take it that it would be ignored, altogether, on the ground that the Government is not recognised; but if it came from the courts then it would be entertained. I take it that this is the basis of the Order.
My Lords, the only other question I wish to ask is about the change of test from what is just to what is expedient. We saw in a previous case, which caused a great deal of political furore in this country—the Enahoro case—that what is just in any particular situation, or, rather, what is just in the opinion of the Home Secretary, can be challenged. In the same way, I take it, the Home Secretary's opinion of what is expedient will be able to be challenged in Parliament, should Parliament so desire. I think it important that Parliamentary control in this matter should remain. I am not altogether happy about the change of test from just to expedient; but we certainly would not oppose the Order in the present circumstances, provided always that Parliamentary control is retained.
§ 8.3 p.m.
§ LORD STONHAMMy Lords, I am most grateful to the noble Lord, Lord Drumalbyn, for the reception which he has given to these Orders. It is what I should normally expect of the noble Lord. I will try to answer the questions which he has put to me. He asked, when the Order says "may", does it mean "shall". When the Order says "may" it means "may" and not "shall". The position is also that we instruct the immigration officers and certain other authorised persons, whereas we authorise a police constable, to impound these passports. So, in effect, the immigration officers will certainly impound them and we believe police officers will also impound them, although they are not 1127 likely to come so much in contact. There is that difference.
The noble Lord also asked me why a United Kingdom passport, and not a Rhodesian passport, would be issued to people who had a Rhodesian passport—that is, those who are not what he described as "rabid Smith partisans". The reason is that the only practical scheme is to use the United Kingdom passport-issuing machinery. The noble Lord asked whether a person whose passport had been impounded would be denied entry. Certainly those persons will not be denied entry. The arrangement to replace passports will not affect entitlement to entry, and that entitlement will rest on the Commonwealth Immigrants Act, as hitherto. I think I had better make that position clear. That is the reason for the Order relating to the Commonwealth Immigrants Act.
The position of a person who—shall I say?—is in good repute with this country, because he is loyal, and who comes from Rhodesia will be subject to the same conditions with regard to the Commonwealth Immigrants Act as hitherto. The normal rules will apply with two concessions. The first of these is that an exception would be made for a Rhodesian of United Kingdom ancestry—that is, a person whose father or father's father was born here. He would be admitted, even though otherwise he was not qualified for admission under the Commonwealth Immigrants Act. Secondly, genuine political refugees, as defined in the internationally accepted sense in the Geneva Convention of 1951, would be admitted. Subject to those two concessions the normal rules would apply so far as the Commonwealth Immigrants Act is concerned, and their passports would be replaced by United Kingdom passports.
With regard to what is the test of a "rabid Smith supporter" I can only answer the noble Lord that it would be by reputation. Immigration officers are not unskilled or without information on these matters and I think it may safely be left to them to decide. The noble Lord asked whether persons whose passports had been impounded would be left passportless. The only document that they would have would be the document 1128 authorising a return to Rhodesia. After all, as was said by my noble friend Lord Champion, in answer to an earlier question, some people have to get hurt. We are dealing with people who, if they are rabid Smith supporters, are supporting an illegal and rebel régime.
The noble Lord also asked what happens when a valid Rhodesian passport issued before November 11 cannot be extended. We are assuming that the person concerned is a person who is loyal. The answer is that passport facilities' can certainly be extended. The expired passport would be replaced by a United Kingdom passport. As I believe I made clear in my first speech, if someone were passportless in a country other than the United Kingdom and wished to obtain the means to come to this country, he could do so if he qualified, by going to the British post in that country. The normal conditions would apply.
§ LORD DRUMALBYNMy Lords, there is only one question I wish to put. The noble Lord, Lord Stonham, used the phrase "will normally be given a United Kingdom passport valid for six months." I wanted to be quite clear that it would be given to those who are given travel documents. The noble Lord indicated that, and I wanted it to be clear that this covered the whole field and that nobody would be left passportless.
§ LORD STONHAMMy Lords, that is so. And that reminds me that the noble Lord asked me why the period was six months. The answer is obvious. We all hope that these arrangements, which we are, unhappily, called upon to make, will be temporary. It does not mean that people who come here from Rhodesia out of loyalty to this country and to the Crown will be safeguarded only for six months. Six months will be a sufficient period for the time being, but if necessary these arrangements can be extended.
The noble Lord also asked me whether these regulations will be administered with humanity. I have no hesitation in saying that that is our normal practice, and, difficult as these decisions are, anyone who has seen our immigration officers dealing with immigrants from the Commonwealth will know that they not only administer the regulations with complete humanity, but also, when they have 1129 to help someone who they are convinced is genuine, do all they can to help him. On the other hand, if they have before them someone who they think is a "phoney", they will do their utmost, without departure from the rules of warm humanity, to expose him and see that he does not get the benefit of fraud.
§ LORD DRUMALBYNMy Lords, am I right in thinking that what the noble Lord is saying is that the immigration authorities will carry on exactly as usual, using their usual humanity and vigilance, and will treat those who come in with documents of the Smith régime in exactly the same way as any other immigrants, except that their documents will be impounded?
§ LORD STONHAMMost certainly, my Lords. I do not think that any would-be immigrant to this country, or any alien coming to this country, has objected, on the ground of inhumanity, to the treatment he has received at the hands of immigration officers. The complaints we have received are of lack of agreement with our policy. I can assure the noble Lord that the present practice will continue.
The noble Lord also asked what the position was in regard to fugitive offenders; and he rightly thought that application must be made to the courts. That is the case in the Commonwealth. It is different with a foreign country, where it is usually done through diplomatic channels. Since the legal courts are continuing in Rhodesia—and we hope that they will continue to do so—there is no interruption. There is no question of the illegal Government's making application. If they did, their request would be disregarded, because, so far as we are concerned, Government-wise they do not exist—and we cannot be asked by nothing. I think that I have now answered all the noble Lord's questions.
§ On Question, Motion agreed to.