§ 2.36 p.m.
§ THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Stonham.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clauses 1 to 6 agreed to.
§ Clause 7 [Review by Tribunal of determination of adjudicator]:
LORD STONHAM moved Amendment No. 1:
Page 5, line 22, after ("but") insert ("(a)").
§ The noble Lord said: I should like to take with this Amendments Nos. 2 and 3. Nos. 1 and 2 are paving Amendments for No. 3, which is the substantial Amendment. Subsection (2) of Clause 7, as at present drafted, provides that, subject to the exceptions mentioned in paragraphs (a) and (b), the rules of procedure may require a party to appeal proceedings before an adjudicator who wishes to appeal from the adjudicator's decision to the Tribunal to obtain leave to appeal from the adjudicator or from the Tribunal.
§ The first exception—paragraph (a)—is for cases of refusal of admission where the adjudicator allows the appeal and the Secretary of State certifies that he considers it desirable in the public interest that the case should be decided by the Tribunal. If such a certificate is given, the Home Office is entitled to appeal to the Tribunal without leave, and the Amendments I am proposing do not alter the effect of the clause in this respect.
§ The second exception—paragraph (b)—is for cases of refusal of admission where the Commonwealth citizen holds an entry certificate but the adjudicator dismisses his appeal. The clause in its present form provides that the holder of an entry certificate is entitled to appeal 1029 to the Tribunal without leave. There could, however, be a dispute in a particular case whether the Commonwealth citizen concerned was the holder of an entry certificate: the Immigration Service might allege that the entry certificate on which he relied was no longer valid, or had been issued to someone else, or was a forgery.
§ If such a dispute arose, it would be uncertain whether or not the Commonwealth citizen needed to obtain leave to appeal; and if he did not apply to the adjudicator for leave, it would also be uncertain whether he could be removed from the country under paragraph (4) of Schedule 2 before his case came before the Tribunal. To avoid this uncertainty the Amendments alter subsection (2) so that a Commonwealth citizen who claims to hold an entry certificate may nevertheless be required to obtain leave to appeal, but the adjudicator, or the Tribunal, will be bound to grant leave if satisfied that lie is the holder of an entry certificate. In this form the provision corresponds more closely to the Wilson Committee's recommendation on this point. I beg to move.
§ On Question, Amendment agreed to.
Page 5, line 24, leave out ("(a)").—(Lord Stonham.)
§ On Question, Amendment agreed to.
§ Amendment moved—
Page 5, leave out lines 29 to 33 and insert—
(b) if leave to appeal under this section is by virtue of the rules required in a case where the adjudicator has dismissed an appeal under the said section 2(1)(a) the authority having power under the rules to grant leave shall grant it if satisfied that the person who was the appellant before the adjudicator held an entry certificate at the time of the refusal which was the subject of the appeal.")—(Lord Stonham.)
§ On Question, Amendment agreed to.
§ Clause 7, as amended, agreed to.
§ Clause 8 [Determination of appeals]:
§ The noble Lord said: I beg to move Amendment No. 4. I am afraid that I must try your Lordships' patience for a few moments in explaining the problem which underlies this Amendment. Let me say at the outset that I am not asserting that I have found the right solution for it, but I hope to convince your Lordships that there is some change in the Bill as it stands which the Government ought to make.
We are here considering the actions of the appellate authority; that is to say, the adjudicator or the Tribunal. Clause 8 indicates in what circumstances the appellate authority should allow an appeal. There is no difficulty about Clause 8(1)(a)(i): the appeal should be allowed if the appellate authority considers:
that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case.
That, clearly, is a justiciable issue, and if the appellate authority is satisfied that the Secretary of State has reached the decision not in accordance with the law, or not in accordance with the immigration rules which he himself has submitted to Parliament and had approved by Parliament, then clearly the appeal should be allowed.
A much more difficult case arises under Clause 8(1)(a)(ii). This is a case which is not governed by the law or by any immigration rule, but a case:
where the decision or action involved the exercise of a discretion by the Secretary of State or an officer.
In such a case the clause as drafted says that the appellate authority shall allow the appeal if he considers
that the discretion should have been exercised differently".
Those words seems to me to be much too wide. I know that cases arise in the courts of law where there is an appeal to the Court of Appeal against a decision by a judge which it was in the judge's discretion to make. I believe I am right in saying that the Rules of the Supreme Court lay down precisely the circumstances in which a decision made by a judge, which it was within his discretion to make, can be overruled and set aside
by the Court of Appeal. But they certainly do not cover a case in which the Court of Appeal decides that the discretion should have been exercised differently. The Court of Appeal is asked to decide, in accordance with these Rules, whether, for example, the judge of first instance had taken into account irrelevant matters, or had failed to take into account something which he should have considered. There would be no chance of a judicial appeal to the Court of Appeal being allowed simply because the Appeal Court formed a different opinion from that of the judge of first instance.
§ My Amendment would leave out the words, "should have been exercised differently", and insert the words, "has been exercised unreasonably". That would at any rate place on the appellate authority the responsibility of satisfying itself that the Secretary of State had acted reasonably; it would not allow the appeal unless it believed that the Secretary of State had acted unreasonably. I think it will be common ground among all of us that a decision by the Secretary of State responsible to Parliament—a decision which it was in his discretion to reach—should not be set aside lightly by any other body.
§ I would here mention that neither the adjudicator nor the Tribunal is responsible to Parliament. So in the last resort, if the Amendment is not accepted and the clause goes through unaltered, we shall have the situation that the Secretary of State reaches a decision which it is within his discretion to reach—and for which he is answerable to Parliament, and can be questioned there—but under this clause that decision can be appealed against. The appeal can go to the adjudicator, or it may go to the Tribunal, and the adjudicator or the Tribunal can reach a different decision and can say that the appeal should be allowed simply on a matter of opinion; simply because it thinks that its opinion is better than the Secretary of State's opinion.
§ What I am submitting is that a decision by a Minister who is responsible to Parliament for that decision should not be so lightly overruled by any appellate authority. What I am asking is that, if the Government cannot accept the words I suggest, they should consider some other 1032 words which will tighten up the appellate arrangements. So far as I can read the words in the clause, the appellate authority is given no guidance whatever: it is not asked to apply any criteria whatever. It is simply told that it should allow the appeal if it considers that the discretion should have been exercised differently. Perhaps we can take a more specific case so as to illustrate this point.
§ Let me say at once that I am particularly concerned about the working of this sub-paragraph in relation to deportation cases. There is no question whatever that the Secretary of State has to take a discretionary decision in deportation cases. Supposing a Commonwealth immigrant who is here is found to be a drug addict. It is not a criminal offence to be a drug addict, so there is no question of his coming before the court and being charged and recommended for deportation. Yet I for my part—and I think probably most of your Lordships for your part—consider that this country ought not to be a haven for drug addicts and that it is very desirable that such people, if they are found to be here, should be sent away. But in a case of that kind, if the Home Secretary reaches such a decision there is no reason whatever why the appellate authority should not reach a different decision; why they should not say that this is an interference with personal liberty, and should allow the appeal. And unless any security element is involved—and in my theoretical example no security element is involved—then the Secretary of State will be effectively overruled by the appellate authority.
§ What I am seeking to secure is that the appellate authority, which as I say is not answerable to Parliament, shall not be in a position to overrule the Secretary of State lightly. I am not challenging the policy that there should be an appeal on discretionary decisions. That is discussed by the Wilson Committee and, although that Committee thought that certain types of discretionary decision should be taken out of the appeal machinery, I am not challenging what the Government are doing here. But because I am not challenging the main principle I feel the more strongly that the appellate authority should in this case be given some criterion or criteria. It does not seem to me to be sound legislation if Parliament says to the Secretary of State, 1033 "You take your decision; you are answerable to Parliament and you may have to defend your decision in Parliament; but your decision may be set aside by an appellate authority which is given no guidance at all by Parliament as to how it shall reach its decisions, except that it may reach a different decision from the Secretary of State on a matter of opinion".
§ The Government may say that my wording would not make a sufficiently great difference to the law to achieve my purpose. If so, I look to them to produce another form of words, because I believe most sincerely that the words in the Bill at present are too loose and too vague to achieve what probably all of your Lordships want to achieve in this instance. I beg to move.
§ 2.52 p.m.
§ LORD STONHAM
On this Amendment, and I am afraid on some other Amendments, I shall have to burden your Lordships with a somewhat detailed argument, but these are matters of great importance to millions of people and it is possible that this may be the last opportunity, on this Bill at least, for a detailed exposition of all the facts. Therefore I hope your Lordships will bear with me. The Amendment proposed by the noble Lord, Lord Brooke of Cumnor, would allow the appellate authorities to overrule a decision involving the exercise of discretion only if they considered that the discretion had been exercised unreasonably, instead of, as the Bill stands, allowing the appellate authorities to overrule a decision if they consider that the discretion should have been exercised differently.
The kind of case to which subparagraph (ii) of subsection (1)(a) will apply is one where the law and the immigration rules leave it open to whoever takes the decision (whether it be the Home Secretary or an immigration officer) to exercise a discretion. There are many examples of this. For instance, in the case of Commonwealth citizens an immigration officer, in dealing with an adult immigrant of working age with a relative here, may have to decide whether he has a strong compassionate case for admission. He may have to decide whether there are strong compassionate reasons for not refusing admission, justifying reference to headquarters, 1034 in a case where a medical inspector has certified that for medical reasons it is undesirable for the person to be admitted. Again, in dealing with a child who seeks to join only one parent, or a near relative, the immigration officer may have to decide whether there are family or other special considerations which in the opinion of the Secretary of State would make exclusion undesirable; or in dealing with a Commonwealth citizen who has been convicted of an extradition crime, whether there are compassionate grounds for not refusing admission. Again, an entry certificate officer may have to decide whether, in the case of a male fiancé or the husband of a resident in the United Kingdom, there are special circumstances, of a family nature or otherwise, which make exclusion from the United Kingdom undesirable. Again, in deciding whether to make a deportation order under Clause 16 the Secretary of State will be exercising a discretion, since he will not decide to make such an order in every case of breach of conditions, but will take account of the seriousness of the breach and any compassionate or other special circumstances.
There is even greater scope for the exercise of discretion in relation to aliens. As to the admission of aliens, the draft instructions to immigration officers authorise them to refuse leave to land to any alien if there are grounds which render his presence in the United Kingdom undesirable: for example, if his character, conduct or associations make it undesirable to permit him to enter the United Kingdom. As to deportation, the noble Lord, Lord Brooke of Cumnor, may recall that on Second Reading he made reference to the Home Secretary's power under Article 20(2)(b) of the Aliens Order 1953 to deport an alien if he considers it conducive to the public good to make a deportation order, and the noble Lord cited two cases in which he himself had exercised that power.
The proportion of cases of refusal of admission where the decision is based on the exercise of a discretion in a true sense is, and will remain, small. In most cases of refusal (and I believe the noble Lord, Lord Brooke of Cumnor, agrees with this) the dispute will be over the facts of a particular case—for example, the immigrant's intentions, age or relationship—and they will arise under sub paragraph (1) of Clause 8(1)(a). But, although 1035 relatively few in number, discretionary decisions are important and they are the ones where there is most likely to be a case of great difficulty and sometimes great public concern.
The extent to which the appellate authority should be able to review the discretionary decisions is a question which the Wilson Committee specifically considered and on which they took account of the views of their legal witnesses, some of whom in fact were in favour of restricting the appellate authorities' powers of review. The Committee's conclusion, however, was as follows:The view which we have formed is that in the field of immigration control discretionary decisions, although relatively small in number, are those most likely to give rise to controversy, and to a sense of grievance if they are not subject to impartial review. We therefore recommend that where the general rules leave scope for the exercise of discretion by the Home Secretary the same discretion should be open to the appellate authorities. Where however a rule leaves no room for discretion, the appellate authorities should have no power to waive its application in a particular case.That is what we have done. The Government agree with the Committee that appellants are likely to feel a sense of injustice unless discretionary decisions, as much as other decisions in the field of immigration control, are fully open to review on their merits by the appellate authority. The noble Lord, Lord Brooke, feels, as he said, that this extensive power of review, which he regards as being much too wide, impairs the Home Secretary's responsibility to Parliament. I do not think, however, that he has taken adequate note of the safeguards in the Bill. The Government naturally have the question of responsibility to Parliament very much in mind. We believe that the provisions of the Bill taken as a whole reserve to the Home Secretary sufficient freedom of action to enable him to discharge the responsibilities that Parliament can reasonably require of him when the appeal system is in operation.
Three features of the appeal system provided for in this Bill are of special importance in this regard. First, there is the Home Secretary's power to lay down and to alter from time to time general rules governing admission and control after entry—that is, the immigration rule as defined in Clause 22(2); secondly, the fact that, in security cases 1036 and, as regards aliens, in political cases also, the decision of the tribunal is not binding on the Home Secretary; thirdly, the Home Secretary's power under Clause 7(2)(a) to secure that, in a case in which admission is refused in pursuance of his decision, that decision can be reversed on appeal only by the Tribunal.
I should like to deal with those three points, which arc not only relevant but of great importance in answering the noble Lord's case in rather more detail. With regard to the power to determine general rules, under the Bill the function of laying down general rules to govern immigration control remains with Parliament, so far as the rules take statutory form, and with the Home Secretary so far as they are to be put in the form of immigration rules. Admittedly, no set of immigration rules could provide a rule to cover every possible set of circumstances that might arise in a particular case; nor could it cover in detail every type of case that may present a problem to the control at any particular time. The best, therefore, that can be done is to lay down broad general rules covering the great majority of cases. The White Papers presented to Parliament in connection with the Bill have deliberately been framed in such a way as to give the appellate authorities sufficient guidance on the general principles governing immigration control while leaving those authorities a fairly wide measure of discretion in the application of those principles to cases which present special features. But if it were later found that the appellate authorities had been left too wide an area of discretion, it could be more closely circumscribed. The Home Secretary has power to alter the immigration rules at any time by presenting a new White Paper, and thus he can if necessary provide the appellate authorities with more specific guidance on any question of policy. For example, if when immigration rules for the admission of aliens come to be published in their final form it is still considered necessary in the public interest to preclude the entry of aliens who wish to study scientology, a specific provision to this effect can be included in the rules.
Where an appeal by a Commonwealth citizen is dealt with under Clause 9 by a special panel of members of the Tribunal, because the decision or action in question was "taken in the interests of 1037 national security", the effect of subsection (3) of the clause is that the Tribunal's decision on the appeal is not binding on the Home Secretary—and that is important. Similarly, where an appeal by an alien is dealt with by the special panel under Article 7 of the Aliens (Appeals) Order, because the decision or action in question was takenwholly or mainly in the interests of national security or of the relations between the United Kingdom and any other country or otherwise on rounds of a political nature",the Tribunal's decision will not be binding on the Home Secretary. These exceptions to the general principle that the appellate authorities' decisions are binding on the administration have been made because the Government considered that in security and political cases, where the outcome might sometimes vitally affect the national interest, the Home Secretary's responsibility for the final decision should be preserved.
The noble Lord, Lord Brooke, cited the case of a drug addict. He said that he felt that a Commonwealth immigrant who is a drug addict—and drug addiction is not a crime and therefore he cannot be recommended for deportation—ought to be sent away or the Home Secretary ought to have power to send him away. This prompts me to refer to, and I hope clarify, a point arising from the noble Lord's speech on Second Reading. He will recall speaking of the drug addict whom he had had deported; it was Lenny Bruce, although he did not then cite the case. The noble Lord said:Under this Bill he could appeal, and…the Tribunal … might take a different view … The Government … would then be powerless to get rid of such a man."—[OFFICIAL REPORT, 27/3/69, col. 1430.]In winding up and replying to the noble Lord in that debate I said:The noble Lord, Lord Brooke of Cumnor … mentioned Rockwell … who was an American Nazi … and a drug addict, whom he did not mention by name … Indeed, either of the two classes of person he mentioned could be deported if the appellate authorities upheld an appeal against deportation, as the noble Lord supposed."—[cols. 1449–50.]My statement on Second Reading assumed that both cases, if the appeal system had been in force when they arose, would have been dealt with under the normal procedure envisaged in the Aliens (Appeals) Order, and that neither 1038 would have been the subject of a direction by the Home Secretary under Article 7. There is, however, a possibility that such a direction could have been given in Rockwell's case, on the footing that a decision to exclude a prominent Nazi was a decision taken "on grounds of a political nature".
The issue of a direction under Article 7 (as under Clause 9 of the Bill) is a matter for the judgment of the Home Secretary of the day, and we cannot presume to say what view Lord Brooke would have taken if the question had arisen in Rockwell's case. The phrase "grounds of a political nature" is that used by the Wilson Committee; and it has not been possible to find any more precise form of words to define the wide range of cases concerning aliens which ought to be dealt with under Article 7. As the Government interpret Article 7, if the reason for refusing entry to a prominent Nazi were that his expression of Nazi views here would endanger public order, that would not be a decision taken on grounds of a political nature; but a decision to refuse him entry because of the objectionable nature of Nazi views as such would be a decision taken on political grounds. The dividing line is necessarily a fine one, depending on the precise reasons assigned for the decision, which under Clause 6 will have to be disclosed when the decision is notified.
May I turn to the right of appeal to the Tribunal? Clause 7(2)(a) empowers the Home Secretary, in a case where an adjudicator allows an appeal against refusal of admission, to certify that he considers it desirable in the public interest that the case should be decided by the Tribunal. If such a certificate is given, the Home Office can appeal to the Tribunal against the adjudicator's decision without having to obtain leave either from the adjudicator or from the Tribunal. This power is intended for use in cases where the decision to refuse admission has been taken by the Home Secretary in advance of the arrival of the person concerned. The purpose of giving the Home Office this right of appeal to the Tribunal without leave is precisely to prevent the situation arising in which, as Lord Brooke put it on Second Reading, an adjudicator can override the decision of a Minister of the Crown. The object is to ensure that, where a decision to exclude a person from the country 1039 has been taken by the Home Secretary as the responsible Minister, that person should not be able to enter the country until the Immigration Appeal Tribunal itself has reached a final decision on the case.
The Wilson Committee regarded the degree of discretion entrusted to the appellate authorities under their recommendations asno greater than is normally thought compatible with the exercise of judicial functions.There is no reason to expect that the adjudicators, still less the central appellate authority, will exercise their discretion arbitrarily or capriciously, or without due regard for the public interest, and I am sure the noble Lord, Lord Brooke, would accept that. The powers reserved to the Home Secretary under the Bill which I have just described are in our view sufficient to preserve his general responsibility for the proper working of immigration control and of the appeals system as a whole, and to discharge the Government's special responsibility for national security.
A further valid reason for opposing the noble Lord's Amendment is that it would leave the appellate authorities with an unnecessarily difficult and complicated task in the discretionary cases. As the Bill stands it will be for each adjudicator, subject to any guidance from the Tribunal as experience of the appeals system is accumulated, to decide for him-self how to settle such a case. This may not always be easy, and there may be some inconsistency of approach in the early stages, but at least each adjudicator will be clear as to the nature of his duty; hat is, to apply his mind to the case and to come to the conclusion that seems to him to be the right one.
Under the noble Lord's Amendment the adjudicator's task is less clearly defined. He has to ask himself first, is the decision against which an appeal is lodged one that no reasonable immigration officer or no reasonable Secretary of State could have reached? Only if he answer is in the affirmative may the adjudicator allow the appeal. It would not be sufficient that he himself would lave come to a different conclusion. But to decide whether a decision was not within the bounds of action of any reasonable immigration officer or Sec 1040 retary of State would be no easy task; and to substitute this test for that provided under the Bill is, in our view, likely to complicate the task of the appellate authorities and to conduce to greater inconsistencies of decision.
I hope I have convinced the noble Lord that there are sufficient safeguards; and if in the rules and in the advice we find subsequently that he was justified in thinking that the powers are too wide or the safeguards insufficient, then we have a power to alter the situation. But for the reasons I have given, which are reasons both of principle and of practicality, I cannot advise your Lordships to accept the Amendment, and I hope that the noble Lord, Lord Brooke, will feel able to withdraw it.
§ 3.12 p.m.
§ VISCOUNT DILHORNE
I hope the noble Lord will not withdraw it as yet, because there are certain matters in relation to this Amendment with which I hope the noble Lord, Lord Stonham, will deal in a further speech. There are certain matters of importance which he has not covered in what he has said. First of all, may I say that I am no more wedded to the words of my noble friend's Amendment than he is, and so I need not spend any time in trying to defend that proposition. But I think he has put his finger on what is a most important question. The noble Lord, Lord Stonham, has said that there may be a wide variety of discretion cases and that there will be cases of great importance, albeit relatively few in number. Whatever their number may be, surely we want to get the procedure right, and under the Bill as it stands at the moment I do not think anyone could say that it was.
The argument has been put forward that if someone appeals, having been refused entry in the exercise of the discretion of the Secretary of State, he will feel a sense of injustice if the exercise of that discretion cannot be completely reviewed. I recognise that there is some force in that argument, and of course I recognise that there is force in the views of the Wilson Committee. But I hope the noble Lord will pursue the point a little further, because first of all we find that appeals in certain cases are to be with leave, and in other cases without leave. Provision for that is made by 1041 the rules, and we do not as yet know in what cases leave will be required and in what cases not. But any person who has lost the first round is apt to feel a certain sense of injustice if he cannot get leave to appeal. Some litigants even feel that sense of injustice, wholly unwarranted, when they are not enabled to come before your Lordships in a judicial capacity in a case which does not merit investigation. So one can get a sense of injustice there.
It is difficult to suppose that you could ever find a rule that an appeal in a case where discretion is required to be exercised required the granting of leave, because under the Bill as it stands there is no guidance as to the principles on which the appellate body, be it adjudicator or Tribunal, should act. Therefore there will be no guidance or criteria to apply to determine whether or not leave should be given, if leave is made a requirement. Therefore I suppose that in any case in which discretion is involved there will be no requirement of leave to appeal. It would seem to me to follow, if that be right, that in every single discretion case you will get an appeal, because if the Secretary of State's decision is based on the exercise of discretion it is perfectly open to an adjudicator to reverse that decision in the exercise of his discretion. There is nothing to lose and all to gain.
Pursuing that point a little further, I do not know how many adjudicators there are going to be. Let us assume that an appeal goes to one adjudicator in one case and he reverses the Secretary of State's exercise of discretion. A similar case, on almost the same facts or it may be indistinguishable facts, may go on appeal to another adjudicator, who exercises his discretion differently. So as between two similar, indistinguishable cases, in one case you have an appeal from the Secretary of State allowed in the exercise of the adjudicator's discretion, and in the other case you have it refused. Will that not give rise to a sense of injustice in itself, a real sense of injustice, a much greater sense of injustice, than by having rules laid down giving guidance to the adjudicators as to the basis on which they can interfere with the exercise of discretion. This may happen in a large number of cases. It seems to me that under the procedure as it now stands in the Bill you are going to get a wide 1042 disparity of decisions in these discretion cases.
The noble Lord spoke about the Tribunal giving guidance to the adjudicators. I do not quite know what he means by that. I may have misunderstood or misread it, but I thought that the adjudicators were to be independent and impartial, not subject to guidance or control by any other body. But perhaps I have got it wrong. If the Tribunal is to be the master of the adjudicators I should like to know exactly on what basis. That is one matter. I feel that it will not do as it is. It is not good enough to say, "Adjudicators will seek to do their job properly". Of course they will. But the views of individuals differ considerably on question of discretion. Often they are the most difficult matters to decide. Here, a decision of the Secretary of State can be brushed aside by one adjudicator exercising his discretion when another adjudicator would not do so. I think that is going to be unfortunate in its results.
What there ought to be is not an appeal from one man or one body to a whole series of different people who may reach different and conflicting conclusions, but an appeal from a wide number of individuals, if you like, to one central body. This would give some degree of uniformity. In this Bill exactly the reverse process is adopted, so far as adjudicators and appeals from the Secretary of State are concerned.
Why is it that the Government will not consider applying the same principles as are applied in the courts, where an appeal is from the exercise by a judge of his discretion? Is it suggested by the Government that those litigants who appeal to the Court of Appeal feel a sense of injustice because these rules are applied? These rules are designed for fairness. I ask the noble Lord to think again; to think whether in his Bill he cannot provide something which, while it does not fetter the proper exercise of discretion by the adjudicators, at least secures that it will be exercised by them in accordance with the principles laid down and followed by the Court of Appeal when that court is considering whether or not to interfere with the exercise of discretion by a judge. That is what my noble friend Lord Brooke was seeking. That is something which ought to be in this Bill 1043 and, despite the long explanation which the noble Lord, Lord Stonham, has given, for which I am sure the whole Committee is grateful, he has said nothing to indicate that he really appreciates the weight behind the point made by my noble friend. I only hope that he will think again about this matter.
§ LORD MITCHISON
I rise just to say that I hope my noble friend Lord Stonham will do nothing of the sort and that he will stick to the language of the Bill. I have been listening impatiently to hear what the suggested alternative was, and the only alternative I have heard is the one in the Amendment itself. It does no harm, after all, to refer to the Amendment we are supposed to be discussing. This is an amendment which is designed to exclude from the exercise of discretion cases where it is thought that the discretion ought to have been "exercised differently" and to substitute the words "exercised unreasonably." Considering the character of the adjudicator and the Tribunal—and one can find that in the Bill—I see no particular reason for doing that. If there really are any such cases, they will form a very small class of cases indeed. With great respect I did not think that the instance the noble Lord, Lord Brooke of Cumnor, gave came within that very narrow class. The real safeguard in this Bill is surely that the discretion to be exercised is not only the discretion of the adjudicator but, if necessary, the discretion of the Tribunal itself. In the law we have to deal occassionally with a hypothetical being known as a "reasonable man". I do not see why we should not do it in this case. I cannot sit down without reminding your Lordships that reason is, and ought to be, the servant of the passions. I have an occasional feeling that the noble Lord, Lord Brooke of Cumnor, is very good on reason but that it is not always in his case sufficiently the servant of the passions.
THE EARL OF MANSFIELD
Would not the noble Lord, Lord Stonham, at least consider taking this question back and considering it before the Report stage? We know how in this country feelings are greatly stirred when, for example, two adjacent benches of magistrates give totally different penalties for quite small motoring offences. This is a 1044 difficult and contentious Bill, and however administered it is bound to cause a certain amount of hardship and a considerable amount of ill feeling. Having some knowledge of the West Indies in particular, I know what potential immigrants feel about it. Surely it would be a good thing to see whether we could not reduce the number of cases where anomalies might occur to the lowest possible minimum. Would it not be better, therefore, that the adjudicators should be given some slight degree of instruction, or at least advice, as to how they should administer their powers? If the law is kept in its present form, it seems to me, as the noble and learned Viscount has so rightly stressed, that there are going to be very different interpretations put on cases by various adjudicators. The result will be that a quite unnecessary amount of hardship may be inflicted, and an entirely unnecessary amount of ill feeling caused. Therefore I would ask the noble Lord, Lord Stonham, whether he would not be prepared to take this matter back and see if something cannot be done to meet the point which my noble friend Lord Brooke has raised, even if the method of dealing with it is entirely different so far as verbiage is concerned.
§ LORD WALSTON
With the greatest respect to noble Lords opposite, it seems to me that they are taking far too legalistic a view of this problem. The noble and learned Viscount made a plea for some degree of uniformity in these decisions which have to be made, and he suggested that we should try to apply the same principles as in the courts. In this instance, I do not believe that we should attempt to apply the same principles that we have in courts because we are not dealing with legal matters in the same way that the courts deal with them. What we are dealing with here is the decision of one individual—who is referred to as the "Secretary of State" when in fact we all know that he is an immigration officer—as to whether another individual is or is not speaking the truth. With the number of immigration officers that there are—and I do not know how many there are; perhaps my noble friend could tell us, if it is relevant—it is impossible to get any degree of uniformity because the decision depends purely on their own subjective judgment.
1045 I do not believe that it is right that the future of one individual, the would-be immigrant, should depend solely on the subjective judgment of one immigration officer, no matter how sound he may be or how experienced he may be—and that is the basis for this whole appeal system. The appeal, therefore, is against an arbitrary decision—and I do not use that word in any derogatory sense—and the man to whom the appeal is made, the "adjudicator", as he is referred to here, surely must be completely unfettered; and if he considers that the immigration officer should have acted differently, should have made a different decision, he must be in a position to say so and to reverse that decision.
For that reason I hope that my noble friend will keep this clause as it stands, with one very small suggestion which I will come to now if I may, and will turn his face against the Amendment proposed by the noble Lord, Lord Brooke of Cumnor. The very small amendment which I would suggest is purely drafting. If one looks at Clause 8(1)(a), it says:… shall allow the appeal if he considers—(i) that the decision or action".I think it should read:… shall allow the appeal—I will not press that point, but if my noble friend will read it carefully I think he will see that the (i) should be put in a different place.
- "(i) if he considers that the decision or action against which the appeal is brought was not in accordance …or
- "(ii) where the decision or action involved …"
§ LORD ELTON
May I return for a moment to what I took to be the central and simple point underlying the Amendment of the noble Lord, Lord Brooke of Cumnor; that is, the danger of withdrawing what are in fact political decisions from the Secretary of State, who is responsible to Parliament, and entrusting them to an adjudicator or the Tribunal, who are not. The noble Lord, Lord Stonham, met that argument with a series of rebuttals (I think he called some of them "exceptions") which I followed as closely as I could, and perhaps when I have had time to read them in Hansard to-morrow I shall be more convinced than I was. However, I still feel that the point has not wholly been met and that it would be worth your Lordships' while 1046 to remember that this clause, in so far as the charge of the noble Lord, Lord Brooke of Cumnor, against it is justified, becomes an instance of a very dangerous tendency, a tendency which has nothing whatever to do with immigration, but one which is constitutionally dangerous.
What it appears to do is to remove a decision which should be a political decision from a political officer. Where the decision is a question of fact, whether an immigrant is in fact under 16, or in fact the child of his alleged parent, then it is eminently proper that the ultimate decision should be judicial and that all political arguments and pressures should be kept remote. But where the question at issue is political—is it wise or proper to admit a scientologist, or a drug addict, or a racial agitator?—that is a political decision, and I should have thought that the ultimate decision subject to no review, should rest with the Secretary of State, simply because he represents Parliament and Parliament represents the people. The tendency to delegate and dissipate the responsibilities of Parliament to a number of ad hoc tribunals and other bodies has been very widespread and long-extended, and I think we should bear that aspect in mind in considering the noble Lord's Amendment.
§ LORD FOOT
I should like to urge the Government to stick to their guns and stand by their wording. I am most grateful to the noble Lord, Lord Stonham, for the exposition which he gave to us at the beginning of this debate, in reply to the noble Lord's Amendment. In particular, I am grateful to him for quoting to us the sort of cases where the exercise of discretion arises. I think it was clear from what the noble Lord said that a great number of them, at any rate, are cases which involve the weight to be given to compassionate considerations. He quoted one of the illustrations given in the Wilson Report; that is, the case of an immigration officer who has to decide whether it will be proper to allow somebody who is over the age of 16, or whatever it may be, or who is still of working age, to come in if there are strong compassionate grounds for doing so.
In cases of that kind, what is the adjudicator doing when he reviews the immigration officer's decision? He is not 1047 putting himself in the position of the Court of Appeal, deciding upon whether a judge has exercised his discretion in the court below in a proper manner: he is doing something of a different nature. What he is doing, surely, is deciding for himself whether the weight to be given to the compassionate consideration is such as to justify the admission of that person into the country. As the noble Lord, Lord Stonham, said, it would impose an almost impossible obligation upon the adjudicator or the Tribunal, in reviewing an immigration officer's decision in those circumstances, simply to ask itself: was the immigration officer acting reasonably?
It does not seem to me that the question of what weight should be given to this compassionate consideration is susceptible of answer if you pose the question: was the immigration officer or the Secretary of State acting reasonably? Is it not vitally important, from the point of view of fair play, and in order that the immigrant himself can see that justice is being done, that the question of the weight to be given to compassionate considerations should be the decision of an entirely independent person? That seems to me the great virtue of the words which are in the Bill, and the disadvantage of the words which are proposed in the Amendment.
§ 3.34 p.m.
§ LORD BROOKE OF CUMNOR
I am extremely grateful to my noble and learned friend Lord Dilhorne for the powerful support which he gave to the purpose, though not to the wording, of my Amendment. In reply to the noble Lord, Lord Mitchison, I would simply point out that I made it absolutely clear that what I was asking the Government to do was to find words which were more appropriate than the words at present in the Bill.
My noble and learned friend made an unanswerable case for assimilating the arrangements here, mutatis mutandis, to; those of the courts, and in so far as this is a question of appeal machinery there is an exact parallel. I am also grateful to the noble Lord, Lord Stonham, for the trouble which he took in replying to me at such length. But even at the end of his speech it appeared to me that he still imagined that I was dissatisfied on 1048 matters of policy, whereas my dissatisfaction is confined to the matter of appeal machinery. It still seems to me that, as my noble and learned friend said, it would be very much wiser to assimilate this machinery as closely as may be to the machinery which, so far as I know, works perfectly satisfactorily in appeal oases in the courts.
The Rules of the Supreme Court state some half a dozen grounds on which the Court of Appeal is prepared to entertain an appeal against an order by a judge which it was within the judge's discretion to make. I understand that those Rules are scrupulously observed, and they give to the appellant some guidance as to what he must prove if he is to succeed in his appeal. But your Lordships will notice that under the Bill as it stands the appellant has no guidance at all. Therefore, whenever a decision is reached by the Secretary of State which might give rise to an appeal under Clause 8(1)(a)(ii) there will invariably be an appeal.
Why not? Since the appellate authority is given no guidance at all as to how it shall reach the decision, why not have another dip? Consequently, every one of these cases will go to an adjudicator, and a number of them will go to the Tribunal. I think that my noble and learned friend's objection, that we might have different decisions reached by different adjudicators, will probably be overcome by the fact that the Secretary of State has an unfettered right of appeal to the Tribunal. So that, in the long run, anomalies of that kind will be sorted out by the Tribunal. But it seems to me that it would be helpful to all concerned, including the appellant, if he was given some indication of the grounds on which his appeal might succeed.
The noble Lord, Lord Stonham, quoted from the Wilson Committee's Report, and gave the House to understand that what the Government were doing was straightforwardly to implement that Report. I entirely agree, as I said, that there should be a right of appeal where the decision is a matter of discretion. But what the Wilson Committee went on to say, in paragraph 141 of their Report—and the noble Lord did not quote this—was:… some degree of discretion will be entrusted to the appellate authorities, but no 1049 greater than is normally thought compatible with the exercise of judicial functions.That is precisely what my noble and learned friend and I are seeking to secure here: that there should be as close a parallel as possible with the machinery, which so far as I know works perfectly smoothly, in regard to appeals from a judge's discretionary decision to the Court of Appeal.
I must also make reference to paragraph 143 of the Wilson Report, because the Government would be on firmer ground if they accepted all that the Wilson Committee said in paragraph 143. They have accepted, let me say, that where there are security considerations the decision of the Secretary of State, and not that of the appellate authority, shall be final. But the Wilson Committee devoted a special paragraph to political cases and, with your Lordships' permission, I will just read it, because it is very relevant to our discussion. The Committee said:Cases arise from time to time in which the Home Secretary feels justified in excluding a person from this country, or requiring him to leave, on grounds that are essentially of a political nature—for example, that his presence here is or would be harmful to international relations or offensive to public opinion. We doubt whether the system of appeals which we are proposing would provide apt machinery for dealing with such cases. We would not therefore think it wrong in principle, or destructive of the general value of the proposed appeal system, to remove such cases from the scope of that system and leave them entirely to the Home Secretary's discretion subject to his responsibility to Parliament.The Government have not accepted that paragraph in the Wilson Report.
So far as aliens are concerned, they have introduced provisions into the proposed Aliens Order which will secure much the same result, as we shall be discussing later in the Bill. Where an alien is excluded or is liable to be deported on grounds of a political nature, then, though he has a right of appeal under the Government's proposals, it will be the Secretary of State who will reach the final decision. But the Government have not extended that, as it should have been extended, to Commonwealth citizens—and here is the matter upon which I would agree so strongly with the noble Lord, Lord Elton, who was right on the mark.
May I quote again the notorious case of the American Nazi, Rockwell? I 1050 would have thought that, outstandingly, he was a man of whom it could be said that his presence here would be "offensive to public opinion". He was an avowed and dangerous Nazi, and he came to this country to join up with the British Fascist movement, so called. Under the Government's proposals as set out here, that man, so long as he was an alien, could be turned back at the ports, or subsequently be deported, on the ground that his presence here was not conducive to the public good. But the Government have introduced no safeguard into this Bill against the contingency that such a man might arrive here being a Commonwealth citizen. Rockwell might have been a Canadian: he happened to be an American, but he might have been a Canadian. And the Government seem to treat it comparatively lightly that they are providing no effective means of keeping out or getting rid of such a man if he is a Commonwealth citizen.
I have no doubt at all that such a man should be refused admission. The noble Lord, Lord Walston, says that when we are talking about the Secretary of State we are really talking about an immigration officer. But, with respect to the noble Lord, that is not wholly true; because, as the noble Lord, Lord Stonham, said, the cases arising under this sub-paragraph, though not great in number, are some of the most difficult, and it was just these difficult cases which in my experience came up to a Home Office Minister; and I have little doubt that they still do. Suppose that a Canadian Rockwell were to arrive in this country, and the Home Secretary were to determine that he should be refused admission on the ground (to quote the Wilson Report) that his presence here would be "offensive to public opinion". That Canadian Rockwell could appeal to an adjudicator or to the Tribunal, and the adjudicator or the Tribunal would be entirely free to reverse the Home Secretary's decision—entirely free, despite the fact that the Home Secretary's decision had been taken on what were unquestionably political grounds, which is exactly the kind of matter on which the Home Secretary ought to be answerable to Parliament.
I greatly hope that the Government will give further consideration to this matter, as has been suggested. I sympathise with them in that I do not think 1051 it is at all an easy problem. It would be easier if these Commonwealth cases of a political character could be dealt with in the same way as alien cases of a political character; but that is not provided for in the Bill at present, and the fact that that is not in the Bill makes it, so it seems to me, urgent that in some way or other the Government should review these words which I have criticised.
§ 3.44 p.m.
§ LORD STONHAM
I am most grateful to every noble Lord who has spoken in this debate, because we are collectively fulfilling what I regard as our main function, and especially with regard to this subject. I think that at least some noble Lords who have spoken seem to have overlooked the fact that the draft immigration rules on control of entry are merely draft rules. They certainly have not been finalised; and it was our express resolve that there should be no question of finality until after this subject had been debated in this House and in another place, so that we could take account of the views then expressed and expressed to-day, in (as it were) compiling the manual of guidance to the appellate authorities.
I was particularly grateful for the first three speeches. I was grateful for all of them, but particularly for the first three because, first of all, we heard an exposition of the case by the noble Lord, Lord Brooke of Cumnor, a former Home Secretary. Then we had an extremely valuable speech from the noble and learned Viscount, Lord Dilhorne, a former Lord Chancellor, who comforted me by saying that he was not wedded to his noble friend's words; and then we had my noble friend Lord Mitchison saying that he disagreed with both of them. I have the feeling that when we have a former Home Secretary and two distinguished lawyers at variance, there may be a chance for ordinary chaps like myself to come into my own. I was to that extent comforted.
I should like first, if I can, to deal with one or two particular points that have been raised, and then to come to the general issue. But I would remind your Lordships that what we are considering—and it is all that we are considering— 1052 at the moment is whether we should insert in the Bill, in relation to discretion, that it "has been exercised unreasonably", instead of the words we have in the Bill now, which are that it "should have been exercised differently". That, and that alone, is what we are talking about, and I propose, with your Lordships' agreement, to talk about just that. In his last speech the noble Lord, Lord Brooke, referred to one or two particular cases, and again to the Canadian, Rockwell. I thought he was a United States citizen—I am not sure which; but at any rate he was a Nazi.
§ LORD BROOKE OF CUMNOR
I said that he was an American, but I was asking the Government what would happen if a Canadian Rockwell were to turn up.
§ LORD STONHAM
That is much easier, because if there ware a Canadian Rockwell we should be able to exclude him. Of course we should. I would remind the noble Lord, Lord Brooke, that in 1962 his Party put no power in the hands of the Secretary of State to exclude on political grounds, but we are suggesting that we should have it. So I think that is a fairly conclusive answer on that point.
§ VISCOUNT DILHORNE
Will the noble Lord forgive my interrupting him? Perhaps he would go on to tell us this: if the Home Secretary has power to exclude such a man, would there be an appeal from the Secretary of State's decision to an adjudicator or to the Tribunal; and would they have a power to admit in the exercise of their discretion?
§ LORD STONHAM
I was just coming on to that point, because that was the point raised by the noble Lord, Lord Elton, who said that political decisions—and this would be a political decision—should be left to a Minister. Under this Bill as we have framed it that will be so, because there are two points here. In political cases of aliens, the appellate authorities will have only an advisory role. The Secretary of State will be able to make a rule keeping out, as I said in my opening speech, alien scientologists, or agitators of different kinds. The second point is that this question does not really arise with Commonwealth citizens, as distinct from aliens, although in this 1053 respect the Bill concerns only Commonwealth citizens, because with Commonwealth citizens there is no power to refuse them entry on political grounds. So in fact this covers both points. I hope the noble Lord will study what I have said, because I have very carefully thought about what he said.
§ LORD BROOKE OF CUMNOR
The noble Lord is getting us confused. Within the space of a minute and a half he first of all said that this Government have taken powers to exclude Commonwealth citizens on political grounds, and then a moment later he said that there is no power to exclude Commonwealth citizens on political grounds. It must be one or the other.
§ LORD STONHAM
I am of course talking about the entitled Commonwealth citizens, whom we are discussing under this Bill. I have not contradicted myself in that. If the noble Lord will study my first speech and what I said just now, I think he will find that there is no contradiction.
§ VISCOUNT DILHORNE
I am not trying to be tiresome or awkward. I distinctly thought that in this speech the noble Lord contradicted himself on that issue. I may be quite wrong; I may have done him injustice. But I should be grateful if he will state what the position is quite clearly so that there can be no confusion.
§ LORD STONHAM
Certainly. I shall depart from my general rule and will read tomorrow what I said yesterday.
I should like now to deal with the drug addict case. The noble Lord, Lord Brooke, said that there should be power to deport a drug addict where the Secretary of State thinks this right; that, notwithstanding what the appellate authorities, think, they should not be able to overrule what the Secretary of State says. I put it to the noble Lord that, unless his Amendment (No. 9) is carried, there is no power to deport a Commonwealth citizen unless a court so recommends (and if it does so recommend, the appellate authorities have no function), or unless he is in breach of conditions. So the noble Lord's point does not arise unless his own Amendment is carried. His 1054 Amendment (No. 9) would insert in Clause 16 of the Bill the words,or if he deems it conducive to the public good to make a deportation order against a Commonwealth citizen".
§ LORD BROOKE OF CUMNOR
I am afraid that I must confess to blameworthiness for confusing your Lordships. I think that I spoke mistakenly about a Commonwealth citizen being a drug addict as an example under this Bill. A fairer example perhaps, is that of an alien who is a drug addict and on whom the Home Secretary makes a deportation order on the ground that his presence here is not conducive to the public good. Such an order, clearly, can be appealed against; and although I should have thought that the decision to exclude drug addicts was a matter of great concern to Parliament (and one on which the Home Secretary should be answerable to Parliament) nevertheless, as I read the Bill the appellate authorities could set aside the Home Secretary's decision in a case like that, allow an appeal and enable the alien drug addict to remain here.
§ LORD STONHAM
I know the case the noble Lord has in mind as an example: an alien man, now dead. It is not possible for me to assent in a particular case because I should have to look at it in the changed circumstances that we now propose. I am bound to say that so far as an alien, as distinct from a Commonwealth citizen, is concerned, a very important thing would be the conditions under which he was living in the country; because aliens do not come in as of right. Normally they come in first for 12 months. What we could do would entirely depend on the particular alien drug addict.
§ LORD STONHAM
Ireland is blamed for so much. I shall not join in that attribution. But may I say, before I leave the matter of drug addicts, that if the Secretary of State decides to deport a drug addict whose deportation after conviction for an offence is recommended by a court his decision then cannot be overruled. If deportation is not so recommended, the Secretary of State has no power to deport. That, as I understand it, is the position. There is one other particular point.
§ LORD DERWENT
I am sorry to interrupt the noble Lord. I do not understand what he is saying about drug addicts. A drug addict would not appear in front of a court.
§ LORD STONHAM
I am not clear what the noble Lord means. We are talking about deportation, or possible deportation, and not about whether or not a man has committed a drug offence. The case cited by the noble Lord, Lord Brooke, was of an addict; and the noble Lord himself rightly said addiction is not a criminal offence. We are assuming, therefore, that someone who has not committed a criminal offence is nevertheless, for a different reason, brought before the court.
My noble friend Lord Walston (I will deal later with the main part of his speech) suggested a drafting Amendment. There has been sufficient time for me to consult the draftsmen—with whom I never disagree. I hope, therefore, that he will accept that his proposal that on page 5, line 37, at the bottom of the page should read:(a) shall allow the appeal—and so on. The noble Lord is wrong in his interpretation. The words, "if he considers" must govern sub-paragraph (ii) as well as sub-paragraph (i): if they were inside (i) or (ii) they would not make sense. I must confess that I am accepting what the draftsmen have said. I only hope that when my noble friend reads this it will also make sense to him.
- (i) if he considers that the decision or action …; or
- (ii) where … by the Secretary of State or an officer he considers that …"
I think the main point made by the noble and learned Viscount, Lord Dilhorne—it is a very important point—was the possibility (as he put it, the "likelihood of inconsistency") of interpretation or decision among adjudicators. The fact is, of course, that every decision by an adjudicator will be open to review by at least one member, a legally qualified member, of the Tribunal on an application for leave to appeal; and the Tribunal will exercise the same degree of control over adjudicators as any appellate court does over a court of first instance.
§ VISCOUNT DILHORNE
I am sorry to interrupt again but this again comes back to the point that appellate courts work in accordance with certain well-defined rules. Discretion is very difficult. 1056 It may turn on very small limits. It will be impossible to provide for uniformity by bringing particular cases up to the Tribunal and leaving others down below. I do not see how it is going to work.
§ LORD STONHAM
That is just the point I was coming to, and it is very important. I say again that the Tribunal will exercise the same degree of control over adjudicators as any appellate court does over a court of first instance through general guidance contained in its judgments and perhaps also through practice directions. Leaving aside the question we are now discussing, we are all aware of the apparent difference between judges on matters of sentencing and of the great lengths to which the Lord Chief Justice and others go to try to reduce those differences. My own view is that if you regard the adjudicators as the court of first instance there is likely to be very much less disparity in their decisions than we find, generally speaking, in the courts. But the fact is, as I said when I began my speech, that we have not yet decided on the immigration rules on control after entry. What is being said in this debate will be carefully studied and will influence what we finally decide to do. The two White Papers (No. 3951, relating to Commonwealth citizens, and No. 3952, relating to aliens) set out in draft form the rules governing variation or revocation of conditions of entry and rules relating to deportation. The rules contained in these White Papers will be immigration rules as defined in Clause 22(2) of the Bill. They will consequently be applied by the appellate authorities, that is, the Immigration Appeal Tribunals and the adjudicators, in deciding whether a decision taken in the Home Office should be upheld or set aside on appeal. The White Papers accordingly contained various references to the appeal system provided for in the Bill which will not be applicable until that system has come into operation. I am talking about the statutory appeal system and not the extra-statutory system which will be introduced in the intervening period.
The two White Papers I have mentioned summarise the current practice of the Home Office in the exercise of the powers of variation or revocation of conditions of entry and deportation as conferred by the Commonwealth Immigrants Act and Aliens Orders. They will, of 1057 course, have to be republished in their final form with, I expect, amendments which take account of the points which have been made in Parliament and elsewhere. I think that is of very great benefit to our discussions, because the noble and learned Viscount, Lord Dilhorne, the noble Lord, Lord Brooke of Cumnor, and one or two other noble Lords mentioned the absence of guidance, and there will be guidance in these regulations.
The noble Earl, Lord Mansfield, asked me, as it were, to take this away and have another look at it. As the Committee knows, I am always willing to look at things again to see whether we can come closer to agreement. But the point here is whether the words, "should have been exercised differently", with sufficient safeguards, properly convey the Government's intentions. I must come back to what was said by my noble friend Lord Walston and by the noble Lord, Lord Foot, on this subject. Lord Walston described what happens; that it is really the decision of an immigration officer. There are about 800 immigration officers and although, as I said, the number of discretionary cases are important, nevertheless they are small relatively.
The noble Lord, Lord Brooke of Cumnor, will know that most of the cases referred for decision by Ministers are discretionary cases; that they are numerous and can occupy the time of one Minister. There is the possibility of 800 different points of view, subject always to the rules. Immigration officers work within the rules and therefore you do not get very great differences. As was said by my noble friend, and by the noble Lord, Lord Foot, from the immigration officer you go to the adjudicator, the court of first instance, who, we propose, should make an independent judgment on his view of the facts before him and how, in his view, the discretion should have been exercised.
That is what we want to happen; that is what we think is right. That is what I believe the Committee as a whole would think right, subject only to the points which have been raised—not only the judicial points but also the political and other points—to see whether there are sufficient safeguards to ensure that we are not entrusting to an outside body 1058 matters which ought to be only within the control of Parliament. That is really the crux of the matter. Frankly, I think that the words we have in the Bill express what we want to do very much better than the words proposed by the noble Lord, Lord Brooke of Cumnor. The noble Lord said that he is not wedded to those words. In fact, nobody is wedded to that form of words.
I am prepared to look at these words again—I cannot accept what the noble Lord said—to see whether we can do better, subject only to the proviso that the system which I have described and the exercise of the supervision, as it were, of decisions on discretion should be in the manner we intend and we think right. If the noble Lord feels sufficiently confident (not that I can necessarily meet his point of view; I cannot be committed to that) that I will look at it and do my best, I will leave the matter to him.
§ LORD BROOKE OF CUMNOR
We have had more than an hour's debate on this Amendment and it would be straining the truth if I said that I was satisfied with the noble Lord's reply. I appreciate the care which he has taken in listening to a debate which has sometimes been confusing, even to its principal participants. I think that between us we have probably put on the Record the main considerations which matter here If I thought that my words were materially better than the words in the Bill, I should be disposed to press this Amendment; but I am not satisfied with my own wording and I think it would be more profitable if we could all look at this further to see whether there is a solution which might prove mutually acceptable.
The truth is that there is not a great deal between us and that it is a comparatively small number of cases with which we are concerned. Noble Lords on both sides of the Committee are anxious to achieve a system that will work satisfactorily and will be seen to work justly. I am not wholly satisfied with the words as they stand and the Government are not wholly satisfied with my alternative. I think that we should all try to see whether, in the light of all that has been said, we can improve the Bill. I am not disposed to press my own Amendment, and I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ Clause 8 agreed to.1059
§ Clause 9 [Special procedure in cases involving national security]:
§ 4.8 p.m.
LORD STONHAM moved Amendment No. 5:
Page 6, line 42, leave out subsection (2).
§ The noble Lord said: This Amendment, and Amendment No. 6, pave the way for Amendment No. 7, which is the Amendment of substance. The first Amendment deletes the existing subsection (2) of Clause 9 and the second makes a consequential change in the wording of the present subsection (3) which will become subsection (2). The third Amendment, which is Amendment No. 6, adds a new subsection (3) which deals with the circumstances in which the appellate authorities may receive evidence in the absence of the appellant and his representatives. As to security cases which are dealt with under subsection (1) by a special panel of members of the Tribunal, paragraph (a) of the new subsection has the same effect as the present subsection (2): if the Secretary of State certifies that the disclosure to the appellant of any evidence would be contrary to the interests of national security, that evidence must be presented in the absence of the appellant and his representatives. But the new subsection (3) goes beyond the existing subsection (2) which it replaces, because paragraph (b) of the new subsection deals with cases in which it is alleged that a passport, entry certificate or employment voucher has been falsified. In such a case it is proposed that if the appellate authority decide that it would be contrary to the public interest to disclose to the party relying on the document in question the method by which the alleged forgery was detected, evidence about this method is to be given in the absence of the appellant and his representatives.
§ Noble Lords may ask why it should be in the public interest to conceal from an appellant the method by which it is alleged that a forgery has been detected, which may be an essential element in the case against him. The reason is that the provision of false documents for would-be immigrants is, unfortunately, a highly-organised trade in some Commonwealth countries and the Immigration Service's success in combating the forgers' efforts depends largely on the forgers' being kept in ignorance of defects in their produc 1060 tions. If these defects had to be specified in evidence given in the presence of appellants, the information would soon be passed back to the organisers of the trade, and it would not be long before the forgers improved their methods. It would not be sufficient to exclude just the Press and the public from the hearing because the appellant himself might often be an agent of the immigrant racketeers. In some instances the detection of a false document or false entry in a genuine document is based not on the presence but on the absence of certain safeguards or recognition signals that have deliberately been incorporated in the design of the authentic version. If the nature of these safeguards had to be disclosed, they would be valueless. There are also ways of detecting that a passport has been altered, usually by the substitution of a photograph, which could be countered if those ways of detection were known to the forgers.
§ It may be suggested that if the Home Office allege that, for example, an entry certificate is forged, we should apply for an adjournment of the appeal hearing so that we could obtain evidence from the entry certificate office overseas that no certificate had been issued to the appellant as claimed. But the delay involved in obtaining such evidence would obstruct the operation of the appeal system. In the Second Reading debate in another place, an Opposition Member drew attention to this problem and my honourable friend the Parliamentary Under-Secretary, Mr. Rees, said that it would be considered. We have considered it and have reached the conclusion that the only solution is to enable evidence of the kind in question to be received in the absence of the appellant and his representative. The Amendment makes the adoption of this procedure depend on the decision of the appellate authorities. Only if they agree, will they receive evidence in the absence of the appellant and his representative. There will be no question of concealing the fact that the decision under appeal was based on the recognition of a document as forged or falsified. Consequently, the appellant will be put on notice to produce such evidence, if any, of the genuineness of the document as is available to him.
§ The Government put forward this proposal with reluctance, but we believe 1061 that it provides the only means of preventing the appeal system from being turned to the advantage of the racketeers, those really dreadful people, who profit at the expense of prospective immigrants into this country. Anyone who goes to London Airport and sees the result of this will know how those of us who are concerned with this problem feel about the racketeers. I beg to move.
LORD BROOKE or CUMNOR
I welcome this group of Amendments. I think it is very desirable to make provision for this type of case, where a document is believed to be forged and it is not desirable to disclose how the forgery has been detected or how it can be proved to be a forgery. I have only one point of criticism and it is really a matter of presentation. Clause 9 is described in the margin as, Special procedure in cases involving national security. That might be taken to indicate that when we get to the new provisions inserted by this group of Amendments, which I think will come out as subsection (3)(b), they apply only in cases of national security, but I doubt whether it is intended that the question of a forged employment voucher should be classified under the heading of "cases of national security". It seems to me that it would be more desirable to insert paragraph (b) as a new clause, quite away from the heading of security. I suggest that this should be considered on Report. If that is not done, I think the side heading of the clause will need some alteration, if it is not to mislead.
§ LORD GIFFORD
I certainly appreciate the difficulties of the authorities in trying to detect forgery. Obviously they are considerable, and racketeers do exist. But I am inclined to question the desirability of these Amendments. Let us be quite clear about it. Under these Amendments there will be cases where the sole reason given by the immigration officer for refusing entry is that a document—an entry certificate or passport or employment voucher—is forged. In those cases, if the appellate authorities so determine—and on what criteria they declare it is in the public interest I am not sure—the evidence can be given against this man in his absence, without his knowing what it is and without him or his adviser being able to challenge or cross-examine the witnesses who make the claim. The adjudicator will be able 1062 to say that on evidence he is not going to let the man see that his document is forged. That will be an effective end to the matter. In fact the immigration officer, who has a difficult job, may be right or wrong. Certainly I have known cases where, quite mistakenly, allegations of forged documents have been made and their authenticity has subsequently been explained. I would say that it would often be essential to challenge evidence given as to forgery.
My noble friend says that this, problem is so difficult that we have to make these Amendments, but by doing this we are counteracting a hallowed principle of my profession: that the facts are established by the giving of evidence which is open to challenge and question by the opposing party. It is quite beyond the bounds of those responsible for detecting forgeries to ensure that the. documents which they issue cannot be forged, or, if forgeries are made, that they can be easily detectable? Is it necessary, in order to make it more easy to win the battle against the racketeers, to make an exception to that principle which I have just enunciated and so in certain cases cause injustice to the individual by depriving him of the means of challenging evidence which has been given against him? On these grounds, I feel very reluctant to accept this Amendment without further question.
§ LORD STONHAM
I can well appreciate my noble friend's reluctance. As he said, this is against a hallowed principle of the legal profession which he adorns. I would say again that the Government take the step with reluctance, and I hope that I have said clearly why we have to do so. In some cases, for instance, the granting of an entry certificate just depends on a document being stamped. Clearly, if we have ways of ascertaining whether or not an entry stamp is genuine, it would be the height of folly, after two or three months' practice, to disclose how we know. We are not in this business to play. I am sure that my noble friend knows as well as I do that there are many thousands of immigrants, particularly from Asia, who are exploited by these racketeers, these criminals, who charge these poor people enormous sums to get them the papers and make the arrangements for them to come to this country.
1063 Last week I saw a middle-aged Indian woman, with five children, who had been at London Airport with those children for five days. She was alleged to be coming over as the wife of a man already here, and it was said that these were his children. This was one of the cases that I personally inquired into, and it was found that her documents were forged. I am sure that behind that story there is a criminal who has charged a great deal of money for the documents; who has subjected that woman and those children to the journey, with hope in their hearts that they would get away with it, only to be disappointed, because they must go back to their own country, perhaps financially ruined for life.
To one tiny extent, that sort of thing would in my view justify some very tiny infringement (if it is an infringement at all) of the hallowed principle to which my noble friend referred. But I would remind him that there are fair grounds for my saying that we are not infringing the principle at all, because the appellate authorities would receive evidence, in the absence of the appellant or his representative, only if they agreed. That is the judicial authority.
Furthermore, there will be no question of concealing from the appellant the fact that the decision not to admit was based on recognition that the document was forged or falsified. In the unlikely case—and I agree with my noble friend that it could happen—that the document was not forged or falsified, it would be up to the appellant to prove that the document was correct: not to prove that it was not a forgery, but to prove that the facts in the document were true—for instance, in the case of the lady to whom I referred, that she was the wife of someone resident in this country, and that the children who had come for admission were his children. These facts could be proved, and if they were proved, then those applicants would be admitted. So, while appreciating my noble friend's sentiments in this matter, I do not think he has any real cause for concern.
On the point raised by the noble Lord, Lord Brooke of Cumnor (and I thank him for his general welcome to the Amendment), I appreciate what he says, What we are proposing to do is to add to the side note the words, "or forgery of documents". I think that should cover 1064 the point. I hope your Lordships will accept the Amendment.
§ On Question, Amendment agreed to.
Page 7, line 6, after ("under") insert ("subsection (1) of")—(Lord Stonham.)
§ On Question, Amendment agreed to.
§ Amendment moved—
Page 7, line 6, at end insert—
(" ( ) If—
those matters shall be presented to the adjudicator or Tribunal without being disclosed as aforesaid; and for the purposes of this subsection any part of the proceedings may take place in the absence of the appellant or that party, as the case may be, and of his representatives.")—(Lord Stonham.)
§ On Question, Amendment agreed to.
§ On Question, Whether Clause 9, as amended, shall stand part of the Bill?
§ 4.26 p.m.
§ LORD BROOKE OF CUMNOR
I have an important question to ask relating to what is now subsection (3) of this clause, which will become subsection (2) when the Amendments have been incorporated in the Bill. If I understand subsection (3) aright, its ultimate effect is that the final decision will be given by the Secretary of State, though the appeal machinery will first have been open to an aggrieved person. That is to say, if national security is involved the Government are accepting the recommendation of the Wilson Committee that there should be appeal machinery available, but are reserving to themselves the final decision and stipulating that they 1065 will not necessarily be bound by the decision of the appellate authorities. That seems to me to be very wise.
What I want to ask the noble Lord is why the provision in what is now subsection (3) is to extend only to security cases, contrary to the recommendation in this case of the Wilson Committee. I do not want to quote again the whole of paragraph 143 of the Wilson Report, but in that paragraph the Committee drew attention to cases whicharise from time to time in which the Home Secretary feels justified in excluding a person from this country, or requiring him to leave, on grounds that are essentially of a political nature—for example, that his presence here is or would be harmful to international relations, or offensive to public opinion".The Wilson Committee recommended that in such cases there should be no appeal; at any rate, they said they would not criticise the Government if they decided that there should be no appeal, because, as they pointed out, these were political questions and should be settled according to the Home Secretary's discretion, subject to his responsibility to Parliament.
What the Government have done is very interesting, though it does not appear clearly on the face of the Bill. The Government are, under the draft Order in Council, conferring rights of appeal on aliens, thus achieving the ultimate result envisaged by the Wilson Committee in the case of aliens. I apologise for having to refer to the draft Order in Council, but I think this is the only point where I can bring in the matter in relation to the Bill and it does directly arise in connection with subsection (3) of this clause. Under paragraph 7 of the draft Order in Council the Government are taking special powers. by a provision closely similar to subsection (3) of Clause 9 of this Bill, to ensure that where an alien is concerned, and the Home Secretary's decision has been taken on grounds of a political nature, that decision will prevail even though the appellate authority may wish to grant the appeal against the Secretary of State's will. The Government are doing that in the case of aliens, but it is quite clear from Clause 9 that they are not extending it to Commonwealth citizens. For Commonwealth citizens, the Amendment that we have just agreed to deals with security cases; it does not in any way deal with political cases.
1066 This is another aspect of the matter that we were discussing earlier. I maintain that where a decision by the Home Secretary is essentially of a political character—for example, that a person's presence here is or would be harmful to international relations or offensive to public opinion—then the Home Secretary's decision should not be interfered with. By all means go through the appeal procedure; and let the Home Secretary reconsider the matter in the light of the appeal decisions. But he should not be bound to accept them, because these are matters of a political character, subject to the Home Secretary's discretion, and it is essentially true that the Home Secretary is directly answerable to Parliament, and that the final decision should be taken by someone directly answerable to Parliament. The Government are not implementing that part of the Wilson Committee's recommendation in paragraph 143, which relates to Commonwealth citizens, although they are implementing it in a roundabout way so far as aliens are concerned. The question I am asking is, "Why?"
§ LORD STONHAM
The noble Lord, Lord Brooke of Cumnor, has raised this point on subsection (3) of Clause 9, which relates to subsection (6) of Clause 8. It is a difficult position, because normally when we discuss these matters we refer to the position of aliens, and then go on to relate the position to citizens of the Commonwealth. They are not in the same position. The noble Lord perhaps recall a leading article in The Times of November 20 which asked whether political cases included requests for political asylum, or, indeed, decisions taken on the ground that an alien's character, conduct or associations made it un desirable to permit him to enter the United Kingdom. That is not the Government's interpretation of the phrase, "grounds of a political nature". Where a request for political asylum is rejected, the reason is that it is not borne out by the facts; and it is difficult to imagine circumstances in which a Home Secretary would decide to reject on political grounds a valid claim for asylum.
The kind of case the Wilson Committee had in mind, as an example of one decided on political grounds, not connected with international relations, Was 1067 that of a person whose presence here would be an offence to public opinion. They gave, for example, a prominent neo-Nazi. Another example might be the case of an alien seeking to work covertly in this country, in the interest of a foreign Power, in a way that was contrary to our national interest, although it could not be said to threaten national security. Such cases will fall within the scope of paragraph 59 of the draft instructions. That paragraph will also apply to a much greater number of cases, where the reason for the decision is a matter such as the alien's criminal record, which will have no political implications whatsoever.
These considerations, applicable to aliens, have little or no practical application in the case of Commonwealth immigrants. In the case of a Commonwealth citizen the effect of Clause 9 is that the special advisory procedure can be invoked only where the decision has been taken on security grounds. I believe that is the noble Lord's understanding. This difference in the treatment of Commonwealth citizens and the treatment of aliens is based on the fact that whereas under the present law the Secretary of State has power to take action under the Aliens Order against an alien on any ground relating to the public interest, the grounds on which he may take action with regard to Commonwealth citizens are much more closely circumscribed.
As to refusal of admission of a Commonwealth citizen, the fact is that certain important categories—returning residents, wives, children under 16 accompanying or joining both parents—can be refused entry only if subject to a deportation order. Most other categories—voucher holders, students, persons able to support themselves and their dependants without working—can be refused admission, subject to a deportation order, or on medical or security grounds, only if their admission would be, in the opinion of the Secretary of State, contrary to the interest of national security, or because of their criminal records. Thus, the position is that there is no power on political grounds—or indeed on grounds of personal unacceptability of any kind—to refuse admission to the great majority of Commonwealth citizens who come here. This is why this particular 1068 clause of the Bill is devoted to the question of refusal on admission on security grounds.
§ LORD BROOKE OF CUMNOR
I was not seeking to amend the Bill; I was asking for information. I am grateful to the noble Lord for what he has said. I hope, however, that the Government will open their eyes to the possibility of the same situation arising with individual Commonwealth citizens as we know has arisen over the years with aliens. We should, I think, in general seek to exclude from this country an alien whose purpose in coming here appeared to be to plot to subvert the Constitution of another country. But it is not only aliens who may do that; it is Commonwealth citizens, too. The Commonwealth is not the same unitary body that it was in old days. I can imagine extremely awkward situations arising if a Commonwealth citizen who was known to be travelling around the world seeking help for a plot to subvert the Constitution of another Commonwealth country, presented himself for admission to this country, or indeed was found to be within this country already. I believe that his continued presence here would be offensive to public opinion.
I realise that under the law as it stands there will be no power to deport him unless he has committed a criminal offence here, but the question may arise whether he should be admitted. We might know all about him; we might know exactly the reason why he was coming here, and if he was an alien it would be possible to exclude him. I think the noble Lord is saying if he was a Commonwealth citizen the Government would not wish to exclude him. I think we definitely should have power to exclude such a man, but I certainly would not deprive such a person of the right of appeal. I am only saying that in my view the final decision should be with the Secretary of State. Perhaps the noble Lord will think over what I have said. I am not seeking to make difficulties for him, but only to do what my experience in the Home Office indicated to me was desirable; that is to say, encourage the looking ahead to situations that might arise and for which it is desirable that the law should be suitably moulded. I am certainly not wishing to object to this clause in any way, but simply to raise this further point.
§ LORD STONHAM
I will certainly look at what. the noble Lord has said. Obviously we must look ahead on these matters, and it would be folly to suggest that in no circumstances would it ever arise that a Commonwealth citizen of the type he described would not be very welcome in this country.
§ Clause 9, as amended, agreed to.
§ Clause 10 agreed to.
§ Clause 11 [Rules of procedure]:
§ 4.40 p.m.
§ On Question, Whether Clause 11 shall stand part of the Bill?
§ LORD BROOKE OF CUMNOR
I have one small point to raise on Clause 11 which relates to the making of rules. If I understand the Bill aright, Clause 6(1)(b) provides for the making of regulations which will ensure that a statement of the reasons for the Secretary of State's decision or action shall be given. That is entirely reasonable because it would be difficult for the appellate authority to consider meaningfully an appeal against a decision of the Secretary of State if the Secretary of State had not had to give any reasons for it. I should have thought it was also desirable that both the adjudicator and the Tribunal should be required to give reasons for their decisions. I therefore expected to find that that matter would be listed among the various subjects on which rules may be made under Clause 11. I appreciate that Clause 11 is comprehensively drawn and would not exclude the making of rules of that kind. But perhaps the noble Lord, Lord Stonham, would be good enough to look into this matter to see whether it is made sufficiently clear that the adjudicators and the Tribunal would have to give reasons for their decision. It is of course particularly important in the case of the adjudicators, because if there is an appeal from the adjudicator to the Tribunal the Tribunal will want to know the reasons why the adjudicator decided as he did.
§ LORD GIFFORD
May I also raise a couple of points on Clause 11? It is clause which appears to require some clarification in that it is very generally drafted. It says in subsection (1) that the Secretary of State may make rules of procedure, and in subsection (2) that the rules may in particular make provision for the various 1070 matters which are set out. Having read the debate on the passage of the Bill in another place, it is very clear to me that the Government have given a commitment, which I welcome, that the procedures of the adjudicators amid the Tribunal will be brought within the scope of the Tribunals and Inquiries Act 1958. So far as rules of procedure are concerned, I am quite satisfied that those will certainly be fair and proper.
There are, however, two matters contained in Clause 11(2) which seem to go rather further than mere rules pf procedure. The first is in Clause 11(2)(a), which refers to the time within which appeals are to be brought. Of course, to be outside the time limit, when a time limit is laid down, is to lose your right of appeal altogether. I hope that the Government when framing these rules will make sure that they are generously drawn. In the case of a person refused entry at an airport I can see that no doubt a small time limit would be perfectly adequate. But the matter is quite otherwise when a man is refused an entry certificate, and under the proposed Amendment to the Bill this will become a matter of considerable importance. It might also be perfectly proper for a longer time limit to be given in the case of a person who wishes to appeal against the imposition of E. condition, because he, after all, will be in the country and there is no question of his being speedily sent away. I do not know whether my noble friend can give some indication of the kind of time limit which is going to apply, but certainly I hope he can assure us that the question of limitation for the bringing of appeals will be sympathetically and generously considered.
The other matter I wish to raise concerns Clause 11(2)(e), which refer; to the mode and more particularly the burden of proof which is operative before these appellate authorities. The burden of proof seems to be something which is a very grave matter to be left merely to rules of procedure. I notice that this matter was raised in Committee in another place and the Under-Secretary of State indicated that in the case of a person holding an entry certificate the burden of proof, as the Wilson Committee recommended, should be on the Home Office to prove that his entry certificate was not good enough. But, apart from that, I 1071 think the Under-Secretary of State left the matter open and said that he would try to look into it. Appeals might be brought in all kinds of cases—returning residents, bona fide visitors, bona fide students—and if on the question of who is to satisfy whom of his case the burden of proof is to be left to rules of procedure, I hope we can have some indication from my noble friend of the approach the Government will bring to bear on that problem.
§ LORD FOOT
Before the noble Lord replies, may I add a word to what the noble Lord, Lord Gifford, was saying? One matter that concerns me also (perhaps the noble Lord, Lord Stonham, can assist upon this) is that rules can be made as to the admissibility of evidence. I am concerned, as the noble Lord is, about rules being made by the Secretary of State concerning the burden of proof; but I think that the question of whether the Secretary of State ought to be able to make rules about the admissibility of evidence also requires investigation. I should have thought that both these matters are adequately covered by the general law of the country. Rules of evidence are, after all, fairly well defined. We have our clear rules about the burden of proof in criminal and in civil matters. What I should like to know from the noble Lord is this. Why has it been thought necessary to insert paragraph (e) giving this power to the Secretary of State?
§ 4.46 p.m.
§ LORD STONHAM
As my noble friend Lord Gifford pointed out, the provisions of the Tribunals and Inquiries Act 1958 will be applied to this Bill by Order. That really answers the question put to me by the noble Lord, Lord Brooke of Cumnor, because it will mean that the appellate authorities will have to give reasons for their decision. So I hope that that point is satisfactorily cleared up. May I, however, before dealing with the other points which have been raised, say something about the general position? We have not made these rules yet. It would have been quite wrong to prepare complex rules of this kind without my right honourable friend having the advantage of hearing the views expressed in Parliament on this subject. All the points made will 1072 of course be considered before the rules are drafted. They are subject to the Negative Resolution procedure; but, when the rules are made, if they are not regarded as satisfactory then they can be the subject of debate in this House and further criticisms can be made of any which are not regarded as satisfactory.
The Home Secretary will also consult the Council on Tribunals about the rules while they are in draft; that is, before we have the opportunity of seeing them in their final form as the Secretary of State submits them to Parliament. And consultations with the Council on Tribunals will be mandatory when an Order is made bringing the appellate authorities within the scope of the 1958 Act, as I mentioned is our intention. As to the way in which the Secretary of State will exercise his rule-making powers, I can say that in general he accepts the Wilson Committee's recommendations in paragraphs 158 to 177 of their Report. In those paragraphs they give a broad outline of the kind of procedure which the Committee thought appropriate. But, for reasons I have just given, I cannot enter into any commitment about the details of the procedure at this stage. In fact, in the process of preparing draft rules reasons may be found for departing at some point from the Wilson Committee's suggestions, so anything I say now is subject to those general remarks.
However, on the question asked by my noble friend Lord Gifford about the time allowed for appeal, I would mention that the Wilson Committee envisaged notice of appeal against refusal of permission being given orally to an immigration officer before departure. In other types of case, or in cases of refusal of admission where the person concerned appealed after the removal, notice might be required to be given in writing within a certain time limit—perhaps 14 days if the appellant was here in this country, or 28 days if he was overseas. An application to an adjudicator for leave to appeal to the Tribunal ought, the Committee thought, to be made and decided forthwith. Those are the suggestions made on this point by the Wilson Committee, and they form the basis for our consideration.
On the question of the burden of proof, our intention in general is to apply the 1073 usual legal proceeding that the burden of proving a positive assertion lies with the party who asserts it. The consequence of applying this rule to immigration appeals will be in some cases to put the burden of proof on the immigrant and in other cases to put the burden of proof on the Home Office. For example, where admission is refused on the grounds that the appellant is not, as he claims, the child, or it may be the father, of someone resident in this country, or is not the age he claims to be, or that he does not intend to follow the course of study that he says he has come to pursue, it will be for the appellant to establish the truth of his claim. He will not be able just to assert it and call on the Home Office to disprove it. On the other hand. if the Home Office asserts that a Commonwealth citizen has in the past been convicted of an extradition crime, or is the subject of a deportation order, or that it is undesirable for medical reasons to admit him, the Home Office will have to adduce evidence to support our allegations. The burden of proof will be on us.
There will be cases where it is right to depart from this principle. One example is contained in paragraph 167 of the Wilson Committee's Report, where it says:Where the appellant is seeking admission and holds a current entry certificate or visa the burden of proof shall always rest on the Home Office".In the process of drafting rules other examples may come to notice which may require a special provision. I would say again that the list is not closed. We have not yet made up our minds. There is still time.
On the question raised by the noble Lord, Lord Foot, as to the admissibility of evidence, the reason for having in the rules express provision on this subject is to prevent the ordinary rules of evidence—for example, the rule precluding hearsay evidence—from applying to proceedings under the Bill. This, again, is in accordance with the Wilson Committee's recommendation and also with the recommendation of the Franks Committee on Tribunals and Inquiries. In a sentence, the answer to the noble Lord's question is that the range of evidence admissible in these circumstances would be wider than it would be in an ordinary 1074 court. I hope that covers the points raised.
§ LORD BROOKE OF CUMNOR
I am grateful to the noble Lord for his speech so far as he was replying to me. I appreciate the point about the Council on Tribunals requiring a statement of reasons to be given. Nevertheless, it seems to me to give a slightly unbalanced appearance to this Bill that Clause 6 contains specific words about the statement of reasons when the decision is taken by the Home Secretary, and there is no corresponding reference in Clause 11 to a statement of reasons when the decision is taken by the appellate authority. I rather hope that it can be included in Clause 11.
§ LORD STONHAM
As I unde7stand it, the noble Lord accepts what I say that they will be required to make a statement of reasons, but he thinks it ought to be in Clause 11 as well. I will look at that again.
§ LORD GIFFORD
I am grateful to my noble friend for his exposition and will not press him further except to say this: if the Amendments which are proposed later in the Bill are accepted and it becomes virtually mandatory for someone to have an entry certificate, 14 or even 28 days may well not be enough for a man who is notified in a mountain village by post that he will not get an entry certificate, and I am sure this point will be borne in mind.
§ Clause 11 agreed to.
§ Clauses 12 to 14 agreed to.
§ 4.56 p.m.
§ LORD BROOKE OF CUMNOR moved Amendment No. 8.
§ After Clause 14 insert the following new clause:
§ Rights of appeal in respect of passports
§ " .—(1) Her Majesty may by Order in Council make such provision for appeals in connection with the powers for the time being exercisable in respect of the issue and renewal of passports to, and withdrawal of passports from, citizens of the United Kingdom and Colonies as appears to Her Majesty to be appropriate.
§ (2) An Order made by virtue of this section may provide for appeals under the Order to lie to the appellate authorities constituted for the purposes of this Part of this Act and may apply any of the provisions of this Act for the purposes of the Order subject to such modifications as may he specified therein."1075
§ The noble Lord said: This is a matter of considerable substance but I think I can deal with it briefly and concisely. I raised the matter on Second Reading and suggested then that the Government were discriminating against British residents in that they were providing by this Bill a right of appeal not only for Commonwealth citizens but for aliens against a decision to exclude them from the United Kingdom or to deport them from the United Kingdom, but were granting no corresponding right of appeal to a resident in this country who was refused a passport.
§ I think most of us at some time or other have lightly supposed that we had a right to a passport when we applied for it and paid the requisite fee. But that is not so. There is no duty on the Foreign Secretary to issue us with a passport; it is a prerogative act. Therefore it seems to me that Parliament ought not to let this Bill go through without further examining whether we ought not to provide the same kind of safeguard to a British resident in the matter of an appeal as we are providing here for Commonwealth citizens and aliens seeking to come to this country. In that debate the noble Lord, Lord Stonham, was good enough to say that he would bring the point to the notice of his right honourable friend the Foreign Secretary.
Perhaps I can express the case as succinctly and forcibly as it can be expressed by quoting from a leading article which appeared in The Times on May 14, 1968—that is, just a year ago. That leading article said:
Entitlement to travel abroad is not a right but a privilege extended purely at the discretion of a Minister or his civil servants. The Government have accepted in principle the recommendation to introduce an appellate system into the control of aliens and Commonwealth citizens. The citizens of this country should enjoy at least as much protection from arbitrary interference with their movements as is accorded to aliens and immigrants.
I know that it is possible to leave this country without a passport, but generally speaking it is not possible to enter any other country without a passport, so although the British Government, when they refuse a passport, can truthfully say that they are not imposing an absolute bar on the person leaving, nevertheless they are making it extraordinarily difficult
for that man or woman to enter any other country. Therefore it is virtually a prohibition on travel.
§ When I tabled these Amendments I was conscious that I was dragging something into this Bill which was some way outside the Long Title. Indeed, my subsequent Amendments, Nos. 13 and 26, are designed formally to put that right. Nevertheless, I never had any intention of pressing the Amendments because it seemed to me it would be straining the Bill too far. Fortunately, the Government have evidently considered the matter further since then. I tabled these Amendments on March 27, and just four weeks later a Written Answer was given in another place which seems to me to be very relevant to the subject. If the noble Lord. Lord Stonham, can further explain what it means, I hope that I shall be satisfied and be able to withdraw these Amendments with satisfaction and honour to all concerned.
In that Written Answer Mr. Whitlock, Parliamentary Under-Secretary at the Foreign and Commonwealth Office, said:
My right hon. Friend has decided to set up an advisory committee to which cases of persons who appeal against a decision to deny them passports would be referred. There will be early consultations through the usual channels about membership of this committee."—[OFFICIAL, REPORT. Commons. 25/4/69, col. 141.]
If I understand that aright, it means that the Government have accepted the principle of what I was contending for. I hope that the noble Lord will be able to explain a little further what is proposed. I am very willing to accept that, provided there is an appeal, though it need not necessarily be an appeal to the appellate authorities designated in this Bill. What I am concerned about is that Parliament should not pass this legislation, giving statutory rights of appeal to Commonwealth citizens and aliens who wish to come here, while doing nothing comparable to protect the appeal rights of British citizens who desire to travel abroad. I beg to move.
§ 5.3 p.m.
§ LORD STONHAM
My Lords, the noble Lord, Lord Brooke of Cumnor is quite right. The Answer which my honourable friend the Under-Secretary for Foreign and Commonwealth Affairs, Mr. Whitlock, gave in another place does 1077 mean that the Government accept in principle what the noble Lord proposes. We believe that the way we have dealt with it is much more appropriate, and better than adopting the Amendment that we are now discussing. The apparent purpose of the noble Lord's Amendments is to enable provision to be made by Order in Council for appeals against the refusal of United Kingdom passports to be heard by the 'appellate authorities established under Part I of the Bill.
As your Lordships are aware, United Kingdom passports are issued on behalf of the Foreign Secretary, under the Royal Prerogative, to anyone who qualifies for such a passport on nationality grounds, subject to certain limited exceptions. These exceptions relate to people who are seeking to avoid criminal proceedings; minors whose removal from the country would be contrary to the wishes of their parents or guardians, or to the order of a court; people who have failed to meet undertakings to repay expenses previously incurred in repatriating them to this country; and people whose conduct has been such that Parliament would accept that it is necessary in the public interest to prevent them from travelling freely overseas. The only cases in which, in practice, much dispute arises are those in the last category. They are political cases.
Your Lordships will recall that on June 17 last year the Government announced the appointment of an independent Advisory Committee, under the chairmanship of Mr. Justice Cairns, to review cases in which the Commonwealth Secretary had decided Ito withdraw passport facilities from a United Kingdom citizen for reasons connected with his conduct in relation to the illegal regime in Southern Rhodesia. The Government have since been considering whether arrangements for independent review might be extended to other cases in which passport facilities are refused, and as a result the decision has been taken, and a reply has been given in another place. There will be early consultations through the usual channels about membership of this committee.
Meanwhile, I would advise your Lordships that the Committee under Mr. Justice Cairns will remain in being to deal with Rhodesian cases; and I would add that its membership since first appointment is unchanged. All other 1078 decisions to refuse or withdraw a United Kingdom passport will be subject to review by the new committee which it is proposed to set up if the applicant asks for review. The committee's recommendation will not be binding on the Foreign Secretary, but he will certainly attach full weight to their views. The Government believe that it is better to proceed in this way, by the appointment of a non-statutory advisory committee, than by conferring rights of appeal to the immigration appeal authorities. We expect that this advisory committee will be composed of Members of Parliament with ministerial experience, and that that will be better in this particular field than the administrative tribunals that are to be established to deal with immigration appeals.
There is no logical reason for extending the jurisdiction of such authorities outside the field of immigration control, which presents quite separate problems, and there is no logical reason for extending the scope of the Bill beyond that immigration field. Moreover, the cases of refusal of passport facilities over which dispute is likely to arise will be cases of refusal on political grounds, which will not raise justiciable issues of a kind suitable for decision by the administrative tribunals that are being established under the Bill. We think that it is most appropriate that the final decision on any question of denying passport facilities should be taken by the kind of committee I have described, all of whose members will have the right kind of experience for the kind of decision they will have to take.
I am very grateful to the noble Lord, Lord Brooke of Cumnor, for raising this point on Second Reading and again for tabling his Amendments to facilitate this discussion. I hope he will agree that we have met the principle that he has asked for and that it should provide, not in many cases—because there will not be many cases—but in some quite important cases, an important right.
§ LORD WALSTON
I wonder whether my noble friend could elucidate ore particular point. As I understood what he said just now—I did not take down the exact words—passports can be withheld in the case of certain persons where it is considered desirable that they should not 1079 leave the country; and he listed certain people in that category. I have always understood that passports did not confer a right to leave the country, but that in fact we would never seek to hold people in this country against their will unless there was some due legal process which required it. The simple question is: is it legal for a citizen of this country to leave this country without a passport if there is no other reason for holding him here; and is the passport not simply a means of facilitating his entry into other countries?
§ LORD STONHAM
My noble friend's understanding of the situation is exactly in accordance with mine. A citizen of this country does not have to go out with a passport. In this we are unlike many other countries.
§ LORD BROOKE OF CUMNOR
I greatly appreciate what the noble Lord has said in reply to my new clause. As for the most suitable form of appeal body, we will wait and see the form of the new committee which the Government have in mind. I, for one, never thought to argue that the ideal appellate machinery would be the appellate machinery in this Pill. He will appreciate, however, that if I had not related my new clause to this appeal machinery it would have been quite impossible to raise the subject on the Committee stage of the Bill.
§ LORD BROOKE OF CUMNOR
I venture to think that we have achieved something important and substantial here in the cause of personal liberty. The noble Lord. Lord Walston, is quite right in saying that our Government cannot keep citizens at home. But there is little point in leaving from a British seaport or airport if you do not carry a document that is going to get you into some other country; it is difficult to do anything except come back again. That is why a passport is so extremely important. To me, it seems strange that over all these years the absence of a right of appeal for a British resident denied a passport has received so little attention. I venture to think that there was a direct connection between my tabling this Amendment on March 27 and the Government coming un with an answer four weeks later. Anyhow, I greatly appre 1080 ciate the outcome and I beg leave to withdraw my suggested new clause.
§ Amendment, by leave, withdrawn.
§ Clause 15 agreed to.
§ Clause 16 [Power to deport Commonwealth citizens for breach of conditions of admission]:
§ 5.12 p.m.
LORD BROOKE OF CUMNOR moved Amendment No. 9:
Page 10, line 7, after (" thereto ") insert (" or if he deems it to be conducive to the public good to make a deportation order against a Commonwealth citizen ")
§ The noble Lord said: I beg to move Amendment No. 9. This I can also do briefly in the light of our previous discussions, some of which have borne on this same point. Under the law as it now stands there is in the hands of the Home Secretary a power to deport an alien if he has been recommended for deportation by the court, or if the Home Secretary considers it to be conducive to the public good that he should go; and in the latter case the Home Secretary can act even though no offence has been committed and the matter has rot been considered in any court. There is a certain safeguard available for aliens who have been in this country for more than a certain minimum period of years, but certainly this power to make deportation orders against aliens on the ground that their presence is not conducive to the public good has been of value.
§ I welcome the fact that in future there is to be a statutory appeal procedure for an alien threatened with a deportation order. even though I think that the non-statutory arrangement by which he could in certain circumstances have his case considered by the Bow Street magistrate has worked satisfactorily; and I believe that the advice of the Bow Street magistrate has never been disregarded by the Home Secretary.
§ I should not have put down an Amendment of this kind to extend from aliens to Commonwealth citizens the power of deportation on grounds of presence not being conducive to public good, if there had not been the intention to set up a proper appeal procedure. But now that there is to be a proper appeal procedure, I venture to suggest to your Lordships 1081 that this is the time to bring Commonwealth citizens into the same position as aliens in relation to these deportation orders. I am sorry to go back on cases that we have mentioned already, but this is the simplest way of illustrating it. The drug addict is an exact example. I remember the case—it has been mentioned by the noble Lord, Lord Stonham, to-day—of an alien drug addict found in this country. If I remember rightly, he had not slipped through the immigration control, except to the extent that he managed to get into Ireland and had crossed from Ireland into this country, there being no immigration control on persons travelling between the Irish Republic and the United Kingdom. It was not, therefore, to anybody's discredit that he was here. He was found to be here, he was identified here and was known to be a drug addict. I took the view, as I think most Home Secretarties would, that we had enough drug addicts of our own here, and that it was not conducive to public good that we should, as it were, be providing hospitality to alien drug addicts, because as we all know this addiction is infectious or contagious, whichever is the appropriate adjective.
§ Had that person been a Commonwealth citizen there would have been no power to get rid of him. If this situation were to recur in the case of a Commonwealth citizen who by some means had slipped into this country, particularly if he had slipped in through Ireland, I cannot see that there would be any power to get rid of him unless he committed a criminal offence. There is no particular reason to suppose that he would have done so. The noble Lord, Lord Stonham, said that most of these people commit a criminal offence sooner or later, but the fact is that successive Home Secretaries of different Parties in different Governments have had to make a quite substantial use of this power to make a deportation order against an alien on the ground that his presence is not conducive to public good. Doubtless, if that man had committed an offence then it would have been easier to deal with him and it might not have been necessary to use that particular power. But that power has been used, and therefore it proves that there is a case for that power existing as regards aliens.
§ I am submitting to your Lordships that there should now be a power of that 1082 kind in respect of Commonwealth citizens. Under this Bill a Commonwealth citizen can be deported only if he has committed a criminal offence of a certain character or, I think I air right in saying, if he has disregarded his landing conditions. But there is no power at present, and there will be no power unless my Amendment is accepted, to remove a Commonwealth citizen on the simple but quite cogent ground that his presence here is offensive to public opinion. In the present state of the world it is no good saying that this is never likely to happen among Commonwealth citizens. We know that it can happen among Commonwealth citizens, although we hope less than among aliens. Nevertheless, it can happen, and I am suggesting to your Lordships that the Government should look ahead and, now that there is to be an effective appeal system, should take the same power in relation to Commonwealth citizens whose presence here may be offensive to public opinion as they already have in relation to aliens. I beg to move.
§ 5.19 p.m.
§ LORD STONHAM
The Amendment which the noble Lord proposes would confer on the Home Secretary the power to deport any Commonwealth citizen except one who had been ordinaril3, resident in this country for five years, if the I-Tome Secretary considered it conducive to the public good to make a deportation order. I do not know whether the noble Lord intended it, but as the Amendment is drafted the power he proposes to give is not confined to Commonwealth citizens to whom Section 6 of the 1962 Act applies, but extends to any Commonwealth citizen who was born in the United Kingdom or who has any of the other connections with this country which under that section exempt a person from deportation. The noble Lord may not have had that intention but that is the effect of his Amendment, and it is extremely wide.
The power would apply where the Commonwealth citizen had been accepted for settlement (although Clause 16 in its present form applies only where a Commonwealth citizen is in breach of conditions of admission), and it would apply to someone with no criminal record—although hitherto the power to deport a Commonwealth citizen has been 1083 confined to cases of conviction for an offence punishable by imprisonment, coupled with a recommendation by the convicting court. I know the point which the noble Lord made in his speech just now, and in another speech on an earlier debate, when he asked us to look ahead. But from past experience we feel that the time is not yet. In regard to aliens, such an unrestricted power of deportation is already conferred by Article 20(2) of the Aliens Order 1953. An appeal against a decision to exercise the power proposed in the Amendment would lie under Clause 4(1)(a).
There are three reasons why it does not seem necessary or desirable for the Home Secretary to have the proposed new power of deportation of Commonwealth citizens. First, the conferment of so wide a discretionary power of deportation seems hardly consistent with the rights of admission to this country which Parliament gave to certain large categories of Commonwealth citizens in the Act of 1962 and preserved, with some minor modifications, in the Act of 1968. Second, the noble Lord has spoken of possibilities, but there is no clear evidence of a need for the proposed new power. Third. the taking of such a power in relation to Commonwealth citizens, without clear evidence of need, would unquestionably be resented and might be harmful to community relations.
Apart from some small categories, such as diplomats and members of allied forces, who are in varying degrees exempt from immigration control, any alien is liable to be refused leave to land in the United Kingdom if the Home Secretary decides that it is undesirable to permit him to enter. When the Aliens (Appeals) Order is in force any exercise of discretion involved in refusal of leave to land will be open to review by the appellate authorities; but the entry of aliens will remain a matter of discretion, and they will still have no rights of entry enforceable in the ordinary courts of law. Many categories of Commonwealth citizens, on the other hand, have statutory rights of admission.
For instance, the wife of a Commonwealth citizen resident here may not be refused admission unless she is subject to a deportation order: nor may a child under 16 of a Commonwealth citizen 1084 resident here, provided that the other parent, if alive, is also resident in this country. The same is true of a Commonwealth citizen who has established ordinary residence in this country and returns here within two years. A Commonwealth citizen who holds an employment voucher, or is coming to pursue a course of study at an educational institution, or has independent means of support may not be refused admission unless he is subject to a deportation order, or is inadmissible on medical grounds, on security grounds or by reason of his criminal record.
Thus, in contrast to aliens, there is no general power to keep out a Commonwealth citizen simply because the Home Secretary considers him " undesirable". Most Commonwealth citizens who come to the United Kingdom for more than a few months are entitled to admission as belonging to one of the categories mentioned above. During the period, whether limited or indefinite, for which he is admitted a Commonwealth citizen is at present free to remain in this country unless, on conviction of an offence punishable with imprisonment, a court recommends him for deportation and the Home Secretary decides to act on the recommendation.
To make the continued stay of any Commonwealth immigrant who has been here less than five years subject to the exercise of an unfettered discretionary power (although subject to appeal) hardly seems consistent with having conferred these statutory rights of admission on Commonwealth citizens. Take the case of a Commonwealth citizen, entitled to admission as, for example, a voucher-holder or a student, whose presence here the Home Secretary considered not to be conducive to the public good—perhaps because of a threat it posed to the maintenance of public order. If the Commonwealth citizen could not be refused admission on security grounds, on grounds of criminal record, on medical grounds or as being subject to an existing deportation order, he would have to be admitted at the port; but the Home Secretary could, either immediately or at any time up to five years thereafter, make a deportation order against him. Even under a system of appeal, it would be rather anomalous that grounds which could not justify refusal of entry on arrival at the port could be used to 1085 justify the expulsion of someone who had already established himself here. And if it is said that the purpose of the Amendment is to confer power to expel only those who have shown by their conduct on British soil that they are unfit to remain here, there still seems something of inconsistency in taking so limited a power; that is, a power which will not prevent the entry of people known to be undesirable but only enable a Home Secretary to expel them after they have entered and if they have done damage.
But the main argument, in the Government's view, against the Amendment must be that no need has been shown which might justify the taking of so wide a discretionary power to expel Commonwealth citizens. A small proportion of Commonwealth citizens admitted on a temporary basis have shown themselves ready to try to stay here in breach of the control, and this is the justification for Part II of the Bill, which will give power to deport for breach of conditions. But no such indication of need is apparent to justify the power proposed to be taken by this Amendment. Although on Second Reading the noble Lord, Lord Brooke of Cumnor mentioned the two aliens who have been referred to earlier in these debates and against whom he made deportation orders under Article 20(2)(b) of the Aliens Order 1953, he did not then refer, and he has not to-day. to any cases of Commonwealth citizens who might have merited deportation under the proposed new power, but only to the apparently hypothetical case of a Commonwealth citizen who might, like Rockwell, have come here to advocate Nazi doctrines. The Committee will no doubt agree that in this context it would be wrong to single out individuals for mention by name, but it can be said that since control was introduced in 1962, seven years ago, there have been very few Commonwealth citizens in regard to whom anyone has suggested that their conduct, although not resulting in a conviction for serious crime, was such as to justify deportation. There is no evidence that the public interest is being harmed by the presence in this country of any significant number of Commonwealth citizens who would seriously be considered for deportation under the proposed new power if it were available. Control over Commonwealth immigra 1086 tion was introduced because of concern about the number of immigrants entering rather than over the conduct of individuals.
The existence of any power to deport Commonwealth immigrants, even though confined to those who have offended against the criminal law or evaded immigration control, seems to be felt by some immigrants as implying that their status is only that of second-class citizens. There is likely to be a serious adverse reaction in the immigrant community against the conferment on the Home Secretary, even subject to a right of appeal, of power to expel any immigrant with less than five years' residence whose presence he considers not to be conducive to the public good—one who has not committed a crime for which he can be convicted in the courts and be deported in that way. Fears might well be aroused that such a power could be used against leaders of the immigrant communities for opposing Government policies, or even that the power might be used to repatriate immigrants on the ground that the reduction of the immigrant population was necessary in the public interest. However groundless such fears might be, the resulting alarm and controversy might do much harm to community relations.
The question we have to ask ourselves is: could it be justified to take the risk of giving rise to this kind of apprehension when the Home Office is unable to point to cases in the last 6½ years in which the Home Secretary would have been likely to exercise such a power if it had been available to him? I ventured to say on Second Reading that the proposal appeared to be a new facet of the Opposition's policy of assimilating—that is, bringing together—the treatment of aliens and Commonwealth citizens, and, in my view, it seems an unwarranted one. I am sorry to have to disagree with the noble Lord on this point, but certainly this is not a proposition that the Government can accept, and I hope he will not persist in his Amendment.
§ 5.30 p.m.
§ LORD MOLSON
The Minister of State has made a closely reasoned speech which is dependent on two theses: first, that it is not necessary to legislate until cases arise showing that the lack of powers was a national misfortune; and, 1087 secondly, that there is no need to apply logical principles until it is shown that it is necessary to apply them all the way through. I am not aware of the official policy of the Opposition with regard to assimilating the treatment of aliens and Commonwealth immigrants but, speaking entirely for myself, I see not the slightest justification for continuing distinctions which I think have now completely ceased to have any validity. I see not the slightest reason why the principles that are applied to aliens should not be applied to Commonwealth immigrants. However, I very much hope that when the time comes—and the Government have promised this at some time in the future, though they have not specified a date—for the law relating to alien immigration to be put upon a permanent basis, there will be an assimilation of the general principles that apply in the case of both aliens and Commonwealth immigrants. I see no logic and no justice in the preservation of what I believe to be completely outdated distinctions.
From that I proceed to ask why it should be considered unreasonable, if the Home Secretary arrives at the conclusion that it is against the national interest that a particular Commonwealth immigrant should stay in this country, that he should be allowed the same reasonable exercise of Government discretion as is allowed in the case of an alien. It really is no answer to say that because, in the past, a case may not have arisen involving a Commonwealth immigrant—who may not have committed a crime, or may not have acted in such a way that it was possible to get him convicted of a crime, which is an entirely different matter—the Secretary of State should not have the same right to protect this country against an evil influence, simply because the person likely to exercise that influence happened to be a Commonwealth citizen, as he would be able to apply—and indeed would be under a duty to apply—if that individual were an alien.
Nor can I follow the logic of the Minister of State's argument when he said it is unreasonable that, because under this Bill there is no power to prevent a Commonwealth immigrant from coming in on the ground that his presence here would be likely to be harmful, a similar 1088 power should be exercised where the immigrant has come in and it is subsequently found that his presence is harmful. In the first place, it is obviously very much easier for the Home Office to be aware of the moral and harmful influence of a person who has for some time been resident in this country than in the case of someone resident, perhaps, in Africa or Asia who makes an application to come in. It is easier to arrive at a fair conclusion in the case of one who has been resident here than in the case of one who has not been resident here. Moreover, it might well be the case that a man's conduct while in his own home country would not justify the Home Secretary in exercising a discretion of that kind even if he possessed it. But when the man has come here, and perhaps come in contact with undesirable influences, possibly British influences or the influence of other immigrants—or he may have become associated with some organisation—it may well become desirable that he should be deported.
The Minister of State really cannot skate over the case mentioned by my noble friend Lord Brooke of Cumnor, of someone who, because he was likely to have a harmful influence in this country and because he was an American, could be refused permission to come here, or, after he had come here, could be deported. Had that individual been a Canadian instead of an American, that power would not have existed. When we are legislating we are considering the future as well as the past, and we really ought to apply logical principles.
The Minister of State began his speech by using the words, "not yet". He said that it is not yet necessary to move in this direction. Over the last 10, 15 or 20 years we have shown ourselves most reluctant to face the realities of the present situation. But if it is in any way gratifying to the Minister of State, I will say that I think the Conservative Government were more slow and reluctant to move in this way than the present Government have shown themselves to be. Also, I appreciate the moral integrity which this Government have shown when. in coming back in office, they have been convinced by experience of things they had refused to tolerate when they were in Opposition. The late Master of Balliol said that a man with an unchangeable 1089 mind is an unchangeable fool, and the same applies to political Parties. The whole of the speech of the Minister of State this afternoon has been based not upon the wise and empirical policy that has been followed by this Government over the last three or four years, but upon an old prejudice against introducing anything new into the law, and upon trying to preserve an entirely illogical distinction between evil persons who are alien by extraction, and evil persons who come from the Commonwealth.
§ LORD SOMERS
The terms of my noble friend's Amendment are,… if he deems it to be conducive to the public good …When a Commonwealth citizen is granted entry into this country, nobody can possibly tell what he is going to turn out to be like. I must remind your Lordships of a certain young student—I need not mention any names—who has now been in this country for, I think, two or three years, who has spent his entire time organising the more rebellious of the students of this country into public disorder of the worst possible variety, and who has openly confessed that he intends to go on doing so. To my mind, that is not "to the public good". Presumably, he has not done anything which could be called a criminal offence, but, nonetheless, his presence is doing our country a great deal of harm. Surely, following the very logical argument of my noble friend Lord Molson, the Home Secretary should have the ability to deport people of this variety.
THE EARL OF MANSFIELD
While entirely agreeing with the two noble Lords who have just spoken, I should like to put this further point to the noble Lord, Lord Stonham. I would ask him: is it, or is it not, a fact that there are certain countries of the Commonwealth, particularly some of the newer ones, who have already in existence regulations whereby they can expel from their shores members of other Commonwealth countries—sometimes of Great Britain, but very often of other Commonwealth countries and not from here—simply because their presence has proved, as my noble friend Lord Somers has said, inimical to the public weal? I see no reason why names should 1090 not be mentioned. Is there any reason why someone like Mr. Tariq Ali, who I understand has now virtually left these shores, should not have been deported "by the scruff of his neck" a great deal sooner as being an entirely unwanted, I will not say citizen but inhabitant of this country? And if other countries of the Commonwealth have this right, very justifiably, is there any reason why we should not take it to ourselves also in defence, both of our own citizens And of the great bulk of the Commonwealth citizens here, who are nearly all respectable?
§ LORD WALSTON
I am really deeply shocked at the restrictionist attitude which has been shown by the noble Lords who have just spoken, and in particular by their complete disregard of the importance of the Commonwealth. I will not go into the question of whether it is right for aliens to be deported on the grounds that their presence is not "conducive to the public good". Personally, I have certain doubts or that, but that is not under discussion at the moment. But to suggest that this arbitrary right of the Home Secretary should be extended to Commonwealth citizens, not because there has been any proof that the country has suffered from it in the past but merely because it is rather safer in case something might happen in the future, and on the analogy that it is being done with aliens and therefore why should not Commonwealth citizens be treated as aliens, is to me very shocking indeed.
Surely, it depends which side you start from. If you start from the belief that here we have a cosy, tight little island and we do not want anybody to come into it, but unfortunately we are forced by circumstances to open our door just a little to let a few selected people in though we do not really want them then naturally you take the view that the noble Lord, Lord Molson, and others have put forward. But if you take the view, as I think the majority of us do, that we want to preserve our tradition of allowing as many people from all countries, and in particular from the Commonwealth—and, after all, the Queen of England is also Head of the Commonwealth—to come into this country, then we must look at this from a different angle and say, "Let us have as many 1091 people into this country as we can possibly absorb and receive well and make good use of, but we accept the need—reluctantly, but we accept it—that some must be kept out."
That, I am happy to say, as I understand it, is the attitude of Her Majesty's Government. We welcome as many people into this country as possible, but we accept that there are some that have to he kept out. But the onus of proof for those who wish to keep people out must be to show that they are in fact undesirable and that they seriously harm the welfare of this country. No proof has been adduced, and I do not believe that any proof can be adduced. The question of Mr. Tariq Ali has been raised by the noble Earl. Frankly, I do not have such an exalted opinion of Mr. Tariq Ali as to believe that he is in any way a danger to this country, and I do not believe that this country is in any respect worse because he has spent two years here. I have no fear of such people.
I strongly urge the Government to stick to their present stand and to say that those Commonwealth citizens who are allowed in are allowed in with full rights and will be deported only if they actually contravene the laws of this land. Full provision is made for that, and that is fair enough. But to have them deported simply because it is felt, even by so eminent a person as the Home Secretary, that their presence here is not conducive to public welfare surely is running in the face of all the liberal traditions and the welcoming traditions of this country in which we believe. Not only that, but, as my noble friend so rightly said, it is making infinitely harder the problem of integrating the Commonwealth immigrants into this country; the problem of making them feel that, in spite of the restrictions we have been forced to place on them, they are still welcome here.
THE EARL OF MANSFIELD
The noble Lord, Lord Walston, has completely and deliberately misrepresented what has been said on this side of the Committee. He himself admits that we have got to keep out a certain, limited number of persons because they are undesirable. As my noble friend Lord Somers has said, no one knows when a Commonwealth person enters this coun 1092 try whether he is going to turn out to be desirable or not. Admittedly, there are only a very few who turn out to be undesirable, but surely it is logical that we should have the same right to expel these persons after a period of, so to speak, probation, as that we should keep them out from the word "Go".
In regard to the particular young man alluded to, I quite agree that he is not a danger to this country as a country, but do we wish to encourage the presence here of someone who admittedly indulges in revolutionary activities and who leads other students to riot, to assault our police, to damage public and private property and generally to make complete nuisances of themselves? If that is what the noble Lord opposite thinks ought to be the policy of Her Majesty's Government, I am sure that most citizens of this country would disagree with him.
§ BARONESS GAITSKELL
May I comment on the pious expressions of satisfaction of certain noble Lords opposite about the restriction of immigrants into this country? It is only to say that certain recent economic reports—very reliable ones—have stated that if the country is to go "all out", and if productivity is to be increased, in future years we shall need more immigrants and not fewer.
§ VISCOUNT MASSEREENE AND FERRARD
May I say, with due respect to the noble Baroness. that that is no argument against this Amendment? I am perfectly convinced that the vast majority of the members of the Commonwealth would be perfectly happy to see this Amendment passed and become law. No member of the Commonwealth wants the bad elements—and they are very few and far between; I imagine you could count the number of cases on your hand—to come into this country. Surely the paramount point here is "for the public good". It is quite illogical, as the noble Lord, Lord Molson, has said, that you should distinguish between an evil man who is an alien and an evil man who is a member of the Commonwealth. They are both evil. The fact that he is a member of the Commonweath is surely neither here nor there. I heartily support this Amendment. In my view, the arguments produced against it are not real arguments at all. I feel that the Government are taking an out-of-date attitude over it. The Commonwealth 1093 is now very different from what it used to be—and that is to put it very mildly. I think we must come up to date on the Commonwealth.
§ LORD WADE
I think it would be very unfortunate if the impression were created in this debate that Commonwealth citizens are treated very much more leniently than aliens. My impression is that in practice, whatever the law may be, aliens are treated, on the whole, rather more leniently than Commonwealth immigrants, particularly so far as entry is concerned. I wanted to emphasise that in case a quite incorrect impression is created. Secondly, I think we need to look with caution at anything in the way of the introduction of new arbitrary powers. One of the characteristics of authoritarian government is that a citizen who has been brought before the court on some ground and found not guilty of any offence is then immediately detained by some arbitrary power of the Government.
What I fear—I do not say that it will happen—is that a Commonwealth citizen might come here, as he would be perfectly entitled to do so, and that some Government in the future—not the present Government—might use this kind of power immediately to deport him for political reasons. The third reason for persuading me not to support this Amendment is a point made by the noble Lord, Lord Stonham. I am concerned about community relations. We must be careful not to introduce measures which no doubt some noble Lords think are very proper and right but which will create the impression that we do not trust the Commonwealth citizens who come here. I do not think this is necessary. I hope that the Amendment will not be carried.
§ LORD GIFFORD
I have been moved to speak on this Amendment by some of the speeches which have been made. I believe that this is a bad Amendment and that some of the speeches made in support are even worse. It seems to me that if ever there were in power a Government representative of the noble Lords opposite, then, from what we have heard this afternoon, the powers of this Amendment could well be used to institute a witch hunt against certain individuals who had committed no crime 1094 whatsoever but of whose political views certain noble Lords disapproved. I agree with the noble Lord, Lord Molson, when he says: "Let us assimilate the laws as to aliens and Commonwealth immigrants". But I would add: "Let us change the aliens law in this respect". This is a bad provision in a bad law—and I am referring now to the Aliens Act, which was passed at a time when the same atmosphere of illiberalism towards aliens was current as is now current in some quarters against Commonwealth immigrants. It is a bad provision and should certainly not be assimilated in any Act dealing with Commonwealth immigrants.
I should like to ask the Minister a question arising out of this discussion. I am more concerned over another aspect of this matter. Gradually the world is deteriorating, and we are seeing the machine gun take the place of the ballot box for changing Governments. In that situation we shall find, sooner or later, Commonwealth citizens, ex-politicians in Commonwealth countries, wishing to come to this country. Can the Government lay down any conditions on their entry and stay?—conditions that, for example, they will not be allowed to plot in this country, to buy arms, to raise money and so on, in order to make a come-back and to destroy the Government that supplanted them in the Commonwealth countries? I believe that the Government have some sort of power over aliens. They can give asylum to an alien on condition that he does not indulge in these matters. It is essential, with the way the world is going at the moment, that we should have similar powers to deal with Commonwealth citizens.
§ 5.55 p.m.
§ LORD BROOKE OF CUMNOR
I am grateful for the powerful support that I have had from all my noble friends who spoke on this Amendment. I could hardly have disagreed more with everything that the noble Lord, Lord Walston, said. This debate has shown up clearly the difference between the two sides of this House on many of these matters. There is a responsible attitude on this side which I am sorry to say is not shared by some of the Government supporters. I do not wish to raise further the temperature of this debate. I hope 1095 that it was clear that I took every precaution not to do so by the manner in which I moved the Amendment.
I rather suspected that the Government would adduce a number of reasons for resisting my Amendment; some good, some not so good. The noble Lord, Lord Stonham, and other noble Lords opposite have faithfully repeated the reasons given by the man who resisted the advice of his solicitors and insurance agents by saying that he saw no need to insure his house against fire because it had never been burned down. That seems to me to be an absolutely fatal way of carrying on the government of a country when you are charged with the responsibility of its law and order. As to the removal of the existing power in relation to aliens, the noble Lord, Lord Gifford, ventured to suggest that if this power was extended to Commonwealth citizens it would be used with malice and for undesirable political purposes. I can only say that the power to deport aliens on this ground has existed for many years, and I cannot recall a single case where there has been the slightest allegation that it has been misused or that an attempt has been made to misuse it by any Government for political purposes.
As I said, there has been for a number of years a non-statutory right for the person who is subject to a deportation order to go before the Bow Street Magistrate. I believe that in every case the Home Secretary has acted on the advice of the Bow Street Magistrate. In future, when this Bill comes into effect, there will be no non-statutory procedure but a statutory appeal procedure. If that statutory appeal procedure is not effective to prevent arbitrary and malicious decisions by future Home Secretaries, what are we spending our time on here to-day? There are cases which the noble Lord, Lord Stonham, did not mention where I am still convinced that we should be considering the need for powers of this sort. He said, for example, that we ought not to talk in terms of power to deport somebody on the grounds of their presence being not conducive to the public good when we had just let them into the country without challenge. But some of these people have not been let into this country; they have got in via Ireland. It is impossible to discuss these questions 1096 of immigration—as both Houses of Parliament found in 1962—without reference to the possibility of entry into the United Kingdom via the Republic of Ireland, thereby evading the scrutiny of an immigration officer. It seems to me that when we are drawing up legislation we should frankly envisage the possibility of someone thoroughly undesirable getting from the Commonwealth into Ireland and then being irremovable here unless he actually commits a criminal offence. Being a drug addict or engaged in a plot to subvert the Government of another Commonwealth country might well not bring him within the scope of the criminal law; yet I have no doubt at all that his presence would be offensive to public opinion.
Then there is another class of case, where something is discovered about a man after he has come into this country. It is not possible to know everything there is to know about an immigrant who comes into this country. It gives the Home Secretary considerable anxiety when it comes to his knowledge that there is in this country an immigrant who has been convicted of heinous murders abroad; but the fact was not known when he came in, and he is here. If he is a Commonwealth citizen, unless he actually is convicted of another serious crime he is irremovable.
The noble Lord, Lord Walston, said that he was deeply shocked by the restrictive attitude I take in such a case, but I feel responsibility for my fellow citizens. It is not conducive to the public good that, because of lack of knowledge, there should be people admitted here as innocent people who have committed murders in other countries. I would not dream of suggesting that such a man should be deported simply because he had served a term of imprisonment for murder in some other Commonwealth country; that would be wholly unfair, because he might have completely repented of his crime. Nevertheless, if he came to the notice of the police because of his behaviour, and there appeared to be grave reason to suspect that he was returning to his old criminal habits, I should think that a Home Secretary, responsible for law and order, ought to take note of that fact and take some action; in exactly the same way as when in this country a murderer, sentenced to life imprisonment and released on licence, 1097 behaves in such a way as to give cause for suspicion that he may be about to commit a further grave crime it is the duty of the Home Secretary to consider whether his licence should be revoked and he be brought back to prison.
There is no question here of the exercise of an arbitrary right by the Home Secretary, as the noble Lord, Lord Walston, said. If this is an arbitrary right, what is this Bill all about? We are seeking to ensure that the Home Secretary does not take an arbitrary decision. I do not believe that he has taken an arbitrary decision in the past but, at any rate, with this appeal machinery we should have the utmost safeguard that he should not act in an arbitrary way. But he remains responsible for law and order; he carries that responsibility to Parliament; he cannot shift that off on to any other shoulders. What I have been submitting to your Lordships is that the power which successive Governments have been satisfied that the Home Secretary should have of deporting an alien because his presence is found to be not conducive to the public good, should be extended to Commonwealth citizens.
This short debate has lit up the subject vividly. I know that it is a difficult question. It is a matter on which strong feelings are held. I am not arguing that there have been cases of this sort where this power was seriously needed; I am arguing that there may well be cases of this kind in the future—as there certainly have been in respect of aliens. I accept that my Amendment is not very happily drafted. I accept, too, that in this difficult and sensitive field it would be wrong for Parliament to embody in a Bill a provision which went farther than its begetter intended it to go. If we are to act on this we should be sure that we get it right. I hope that noble Lords will set aside all passion and prejudice and consider this as a genuine and difficult problem. But I am not going to press the Amendment. I do not think that at this stage it would be right to introduce into the Bill an Amendment which goes as wide as this one, and on that ground I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ Clause 16 agreed to.
§ Clauses 17 to 19 agreed to.1098
§ 6.6 p.m.
§ LORD STONHAM moved Amendment No. 10:
§ After Clause 19 insert the following new clause:
§ Power to refuse admission to wives and children under 16 if they do not hold entry certificates
§ " .—(1) In subsection (2)(b) of section 2 of the Act of 1962 (under which a woman may not be refused admission into the United Kingdom if she satisfies an immigration officer as to the matters there specified) after the words' satisfies an immigration officer' there shall be inserted the words' that she holds a current entry certificate granted for the purposes of this paragraph and'.
§ (2) In subsection (2A) of the said section 2 (under which a person under the age of 16 may not be refused admission into the United Kingdom if he satisfies an immigration officer as to the matters there specified) after the words 'satisfies an immigration officer' there shall be inserted the words ' that he holds a current entry certificate granted for the purposes of this subsection and'.
§ (3) The Secretary of State shall make arrangements for securing that the persons having authority to grant entry certificates on behalf of the Government of the United Kingdom shall, on due application, grant such a certificate for the purposes of the said subsection (2)(b) or (2A) on being satisfied that, apart from the foregoing provisions of this section, the applicant would be entitled to admission into the United Kingdom under the said subsection (2)(b) or (2A) or would be so entitled if the applicant's husband, parent or parents were admitted with the applicant"
§ The noble Lord said: I beg to move Amendment No. 10: after Clause 19 to insert the new clause printed in the Marshalled List. This is a very important Amendment and I have no doubt that we shall have a considerable debate on it. I hope that your Lordships will bear with me if I try to cover as fully as I can the reasons which prompted the Government to table this Amendment, and perhaps to deal with some of the arguments on which it is based. As I informed your Lordships on May 1, the Government have decided to make the possession of an entry certificate obligatory for settlement by Commonwealth dependants. Section 2 of the Commonwealth Immigrants Act 1962 provides that admission may not be refused to the wife of a Commonwealth citizen who is already resident in the United Kingdom, or who accompanies her and is on that occasion admitted, unless she is the subject of a deportation order; nor may admission be refused to children under 16 whose parents are here or who 1099 are admitted with them. The effect of the new clause that I am moving will be that these rights of entry will remain unimpaired provided that the passenger has obtained an entry certificate for the purpose from the appropriate British representative overseas; but that admission may be refused if he has not.
The change is, in substance, an administrative one, and it is designed to ensure that applications to settle here as a dependant are examined and approved overseas before the immigrant sets out on his journey, rather than that this should be left until his arrival here. This Amendment is not intended to reduce the number of dependants entering, nor do I believe that it will do so. I said in the debate on the Expiring laws Continuance Bill:
There is no issue of principle involved here, because if every person entitled to a certificate was given one it would not reduce the numbers coming in".—[OFFICIAL REPORT, 10/12/68; cols. 422–3.]
Subsection (3) of the new clause is designed to ensure that everyone entitled to a certificate does receive one. It imposes on the Secretary of State a duty to make arrangements for the issue of entry certificates to applicants who are otherwise qualified for admission. The entry certificate officer will issue a certificate when satisfied, for example, that the applicant is the wife of a Commonwealth citizen resident in the United Kingdom. Entry certificates will also be obligatory for dependent relatives who have no statutory rights of admission. But entry certificates will not be obligatory for dependants, including wives and children, who wish to come for a limited period. They will be admitted for the authorised stay of the head of the family. Nevertheless it will still be open to them to use the entry certificate procedure, and it will be in their interest that they should.
§ A separate Amendment to Clause 22(5) provides for the new clause to come into operation as soon as the Bill receives the Royal Assent, which I hope will be shortly before the Whitsun Recess. It is desirable to make the new requirement effective as soon as possible in order to reduce to the minimum an influx of immigrants seeking to avoid the requirement. However, there will be—and I emphasise this—transitional arrangements to prevent hardship to passengers who 1100 had made firm arrangements to travel to the United Kingdom before the change in the law was known. The change is being made now because, first, legislation is necessary and this may be the last opportunity for some time; secondly, it is desirable to make the change before the statutory appeal system is introduced; and thirdly, to make the change first known at a late stage in the Bill reduces to the minimum the risk of a rush to enter in advance of the alteration in the law.
§ I turn now to the reasons for the new requirement. There is general agreement among all who have studied the matter on the desirability of persuading as many Commonwealth citizens as possible to take advantage of the entry certificate procedure, which has been available as a facility for voluntary use since 1962. But the Wilson Committee did not consider that it would be right to make entry certificates compulsory for Commonwealth citizens in general. Since the Committee reported in mid-1967, the Government have kept the question under review in the light of subsequent developments—and there is no doubt that the position has greatly altered during the two years since the Committee considered it. To give an example, in the last full year for which figures were available to the Wilson Committee the number of Indians who had to be refused admission was 200. Last year, it was upwards of 1,250. Since 1962, the number of Indians who have been refused admission has doubled each year; that means that the total has redoubled and redoubled again, so that the level is now some 30-odd times higher than it was in the first year. Because of changes such as this, the Government have reached the conclusion that, in relation to Commonwealth citizens coming for admission as dependants, the present method of leaving claims to admission to be settled at the port has become intolerable and that entry certificates must be made obligatory for this category of immigrant.
§ The Wilson Committee made certain recommendations for improvement of the entry certificate procedure—for example, that the possession of a certificate should be made more nearly a guarantee of admission and that steps should be taken, by appropriate publicity, to persuade Commonwealth citizens to apply for certificates. The Government accepted all these 1101 recommendations and implemented them but, unfortunately, since the Wilson Committee reported, there has been no significant increase in the proportion of Commonwealth citizens arriving with entry certificates. About 100,000 entry certificates a year are issued and about 5,000 applications are refused. But a high proportion of the 100,000 who take out certificates are visitors or students, who are not affected by this Amendment. We have unfortunately failed to persuade sufficient of those coming for settlement to obtain certificates. It is true that almost all those coming here, particularly from the West Indies, have already obtained entry certificates, but in regard to India and Pakistan the results are very different. Only one in eight coming from India obtains an entry certificate, and this has an important effect on those refused admission. Last year, only 39 West Indians were refused entry but 719 Pakistanis and 1,263 Indians had to be sent back. I think that here is the crux of the matter.
§ All this results in a great deal of very real human misery, as anyone who has visited London Airport will know. Where refusal of entry is on so great and increasing a scale, it confronts us with the question whether the system of control which allows it can be regarded as efficient and humane. We do not think that it can be so regarded and have decided to change it. This problem arises only with dependants. The heads of households have to obtain their employment vouchers before setting out and ordinarily they experience no difficulty or delay on arrival here.
During 1968, over 48,000 Commonwealth citizens were admitted as dependants coming for settlement: over 30,000 of these were from Asia. Most of the dependants from India and Pakistan arrive at London Airport, where they have to be examined by immigration officers along with the mass of visitors from Commonwealth and foreign countries who form the great bulk of the passengers coming from overseas and who grow in number from year to year. To reduce congestion at the immigration control, dependants who arrive without entry certificates normally have to be asked to wait for examination until other passengers have been dealt with. The examination itself necessarily takes some
time. As the Wilson Committee pointed out, in paragraph 28:
The most difficult task facing immigration officers … is that of verifying the relationship and age asserted by someone, seeking admission as a dependent relative, in whose country of origin there is no nation-wide system of recording birth, parentage and marriage.
§ That is not the only difficulty. Last week I tried to speak to a 10-year-old boy who had been detained for between two and three weeks. An Asian immigration officer was the interpreter but the boy could not understand him. It had to be a three-handed business, with other Asians who were there, some of whom could speak the same language as the boy, and we managed to get some kind of answers. That is one of the many difficulties which lead to delays. Questions had to be asked which would be largely unnecessary if the people concerned had proper papers, including entry certificates. The least suitable time for an examination of this kind is when the immigrant arrives in this country, when the officers are working under pressure and the immigrant is under considerable strain at the end of a long and tiring journey. When cases are doubtful, the delay before the final decision can be reached may run into several weeks This is because there is an increasing tendency for cases of refusal to be challenged in the courts. In some cases, women and children have had to be kept in prisons or remand centres for weeks.
§ If no change were made in the present procedure it. would become necessary to provide accommodation away from the airport, to which Commonwealth immigrants coming for settlement would be transported on arrival for their claims to admission to be processed. I think that this would be a retrograde step. It would mean establishing what the Wilson Committee called "a kind of no man's land", where immigrants would wait for their "fate to be decided". They would have to be kept in isolation from their kin and in uncertainty about their future. To me, this seems an intolerable prospect and the effect on community relations could well be imagined. It would do nothing to reduce the number of wasted journeys to the United Kingdom or to diminish the disappointment when entry has to be refused.
§ These problems will not be solved by the introduction of the appeal system 1103 provided for in Part I of the Bill. That will not reduce the number of fruitless journeys to this country or the time needed for the examination of a dependant and his sponsor before a decision to refuse admission is taken. To this must be added whatever time is taken for the appeal proceedings—probably in a case of this kind a minimum of 24 hours. The impact on the appeal system of leaving entry certificates as an optional facility is one important argument for making the change that we propose. The Amendment that I am now moving means only that the genuine immigrant in this category will start his journey with an assurance of unhindered passage through immigration control at the port of arrival. There is no change in the position of visitors, including business visitors, or students, or other Commonwealth citizens admitted for limited periods, or their dependants: for them the entry certificate will remain an optional facility, of which they should take advantage if they have any reason to think that their admission to the United Kingdom may not be entirely straightforward.
Let me now say a few words about entry certificate procedure. An entry certificate is defined in Clause 22(2) as
a certificate which, in accordance with immigration rules, is to be taken as evidence of eligibility for admission into the United Kingdom".
The relevant immigration rules are to be found in Command Paper 3465. Immigration officers are there instructed that the holder of a valid entry certificate is to be presumed to be qualified for admission, and is not to be refused admission except in certain specified circumstances, such as where the certificate was obtained by misrepresentation. The arrangements for the issue of entry certificates will be, in general, as described by the Wilson Committee. The entry certificate offices in India and Pakistan will be reinforced to deal with the extra work resulting from the new requirement, and arrangements for this have already been put in train. We do not consider it necessary at present to increase the number of offices in India and Pakistan from which entry certificates may be obtained. In these countries entry certificates are available from offices of the British High Commission, in India at New Delhi, Calcutta,
Bombay and Madras, and in Pakistan at Rawalpindi, Karachi, Lahore and Dacca. The Wilson Committee found that the main areas of emigration to the United Kingdom were situated within what they considered to be, in countries of such size, a reasonable distance of one of these offices, and that rail communications were good.
With regard to the attitude of other Commonwealth Governments, we do not expect them positively to welcome a measure which, for certain of their citizens, changes the entry certificate from an optional facility to a compulsory requirement. But the Government firmly believe that this change of procedure is in the best interests of the Commonwealth immigrants, of all nationalities, who wish to settle here, and trust that it will be seen in this light. It is perhaps relevant that the Indian passport authorities have for some years been issuing to emigrants to the United Kingdom a notice which includes the following sentence:
Before leaving India, you are advised in your own interests to ensure by a reference to the British High Commission in India that you will be admitted into U.K.
But even this advice from the Indian authorities has not led to more than one Indian dependant in eight obtaining an entry certificate.
§ I turn to the arrangements for appeal. When the statutory appeal system is in force a Commonwealth citizen who is refused an entry certificate will be able to appeal to an adjudicator in this country and, with leave, to the Tribunal; and one who arrives with an entry certificate but is refused admission will be able to appeal to an adjudicator and, as of right, to the Tribunal. For the reasons that I gave on Second Reading, it is not practicable to bring Part I of the Bill into force immediately on Royal Assent. The Government have, however, decided that, pending the introduction of the statutory appeal system, extra-statutory arrangements shall be made to enable wives, children and dependent relatives to appeal against the refusal of entry certificates, and to enable those who arrive with an entry certificate to appeal against refusal of admission. The appeals will be decided by one of a number of independent lawyers to be nominated for the Purpose by the Lord Chancellor, and 1105 the Home Secretary undertakes to abide by the lawyer's decision.
§ Appeals against refusal to grant an entry certificate will be dealt with in this country, in accordance with the procedure recommended by the Wilson Committee and in conformity with the extra-statutory arrangements already made for dealing with such appeals from United Kingdom passport holders in East Africa. If the appellant so requests, his sponsor in this country, or a lawyer or voluntary organisation acting on his behalf, will be able to present his case orally to the lawyer dealing with the appeal. The Home Office will be discussing with a number of voluntary bodies on May 8 the part they can play in the representation of appellants under these arrangements. An entry certificate holder who appeals against refusal of admission will be able to attend the hearing of his appeal in person, and will not be removed from the United Kingdom until the appeal has been dismissed or withdrawn.
§ On the question of the admission of aliens for settlement, a corresponding change in the law will not be required for alien dependants because, unlike Commonwealth dependants, aliens have no legal rights of entry. But changes in administrative practice will be made to bring the admission of alien dependants into line with what is now proposed for Commonwealth dependants, so far as this is consistent with the agreements for visa abolition.
§ The admission of alien dependants for settlement is on a much more modest scale than the admission of Commonwealth dependants, and is limited to the wives, children and other relatives of aliens who have themselves already been accepted as residents here, normally as a result of having spent at least four years in approved employment. In such circumstances, dependants are admitted for settlement if the head of the family here is able and willing to support and accommodate his dependants without recourse to public funds. On this basis, about 1,350 dependants a year—that is, of aliens—are admitted for settlement, of whom about 1,000 are wives and children and the balance are dependent parents or other relatives.
§ Dependants of aliens who are visa nationals are required to obtain visas for settlement before coming here, and 1106 so are already in line with what is proposed for Commonwealth citizens. Resident aliens who are nationals of countries with whom we have entered into arrangements for visa abolition often in practice now obtain Home Office approval before bringing their dependants here for settlement. In future they will be advised to obtain this advance approval whenever possible. Where they have not done so, their dependants will not be admitted for settlement. If they appear ineligible for settlement, the immigration officer will refuse permission to land; if they appear eligible, they may be admitted for a short period and advised to apply to the Home Office for permission for settlement.
§ I thought it advisable to explain in some detail both the Amendment and its ancillary machinery, and I am sorry if my speech has been overlong. Even so, I have no doubt that there are a number of questions which I have not answered, and if this should prove to be the, case, I will do my best to answer them at the end of the debate. Meanwhile, I commend this Amendment for your Lordships' approval. I beg to move.
§ 6.29 p.m.
§ LORD GIFFORD moved Amendment No. 11, as an Amendment to the Amendment.
After subsection (3) of the proposed new clause to insert:
("(4) In the case of a person who seeks to satisfy an immigration officer that he is entitled to admission into the United Kingdom under the said subsection (2)(b) or (2A), the holding by that person of a current entry certificate granted for the purposes of the said subsection (2)(b) or (2A) shall be conclusive evidence that he is so entitled")
§ The noble Lord said: I had not anticipated that I should have "first bat" as a result of putting down an Amendment to my noble friend's Amendment, but since I have, I trust that it is in order for me not only to move my Amendment but also to comment on certain of the matters raised by my noble friend in his Amendment. As he said in moving it, the Amendment introduces a major change in our immigration laws. It introduces a wholly different procedure for the would-be Commonwealth immigrant and for the would-be dependant to follow. Whatever its merits—and this is a very difficult subject—it is somewhat unfortunate that it should have been proposed at this very late stage in the passage of the 1107 Bill, after all the stages in the other House, and only five days before the Committee stage here.
§ There must be a vast number of questions which have to be carefully considered before one can give any kind of endorsement to the proposed Amendment. It is all the more necessary to ask these questions, and be satisfied with the answers, when one considers that the proposed changes, once enacted, will be very difficult to scrutinise carefully. If there is injustice, if there is chaos, or if there is anything wrong at London Airport, it is easy to go down and see what is happening, to talk to the people concerned, to raise the matter in Parliament, and have it investigated. But if something is going wrong, if the machinery is creaking in the High Commissions in Delhi or Rawalpindi, it is very much more difficult to find out what is wrong and see that it is put right.
§ There is another short preliminary point. My noble friend has put forward—and very fairly—as one of the principal reasons for this Amendment, the intolerable situation which he has described at ports of entry, particularly at London Airport. I agree with him that the situation is far from satisfactory, and that it might in many cases be called appalling. Of course, that procedure and that situation will be radically changed, or would have been radically changed, by the Bill now before us. Most of all, there are important provisions in the Bill before us for the granting of bail, and I still hope that this power to grant bail will be very liberally used, and so substantially reduce the chaos which my noble friend has described. I would have hoped that one might see how that worked out before seeking to rush through at a very late stage an Amendment of such a major nature.
§ I now come to the merits of the Amendment. I should be the first to agree that it is far more desirable for a prospective immigrant, whether he be a dependant or an immigrant of any other kind, to get clearance by means of an entry certificate in his country of origin, than to spend the money and go through the gruelling experience of getting past the immigration officers. I concede that the holding of an entry certificate sub 1108 stantially reduces, and indeed eliminates, the hardships and the tensions at the point of entry. No doubt, certainly in theory, the making of this requirement, that the holding of an entry certificate will be mandatory, will reduce that hardship further, if one can be satisfied that the personnel in the countries of origin are adequate; that it is easy for the applicant for an entry certificate to make his application, and present his case; that the procedure is efficient and speedy, and the appeals machinery adequate and fair—in other words, if the rights of the individual son, daughter and wife of immigrants here are as well protected by this change as they would have been had the change not been made.
§ It is those conditions about which I am most anxious to be satisfied, and assured, before I give wholehearted support to this Amendment. I am very much afraid that the Government, by producing a last-minute Amendment, and bringing it in force so quickly, may be more concerned to sweep away an ugly problem from the doorsteps of this country to the High Commissions abroad than to make sure that what was previously described as an unworkable proposal can be made workable. I agree that it is an appallingly difficult problem, in the cases of people coming from a country where documentation is often non-existent, where no records exist, to establish whether X is the son of Y or the wife of Z. It is a matter of great difficulty to decide how to resolve this problem. Are we satisfied, and have we really looked into all the implications to see whether the Amendment to make entry certificates mandatory really is the best way?
§ Let us think first of all of the machinery. I do not think my noble friend has told us enough about how the machinery which will be necessary is to be provided. He said himself that in the case of India only one in eight dependants applied for entry certificates. The volume of work in High Commissions in India will, therefore, be multiplied eight times. In Pakistan I do not know what the figures are—and I feel we should have them—with regard to what is the extra strain that will be put on High Commission offices. My noble friend will be very much aware of what is said in the Wilson Report about the granting of entry certificates in countries of origin.1109
The Committee were satisfied, by and large, that the procedures operated in the High Commissions were fair, and that the officers there were able, with the greater time at their disposal, to do justice in individual cases. But they said in paragraph 80:
The additional strain which the entry certificate and visa systems would have to bear in consequence of our proposals makes it more than ever important to maintain, and where possible increase, the efficiency of their operation. The secondment of officers of the Immigration Service to overseas posts where entry certificates work is heavy and difficult has been valuable, and we recommend that the practice be continued; their expert knowledge has not only helped them in their own work as entry certificate officers but has enabled them to give useful guidance to any colleagues in the Diplomatic Service who may be engaged on such work at other posts in the same country.
Later, in the same paragraph the Committee say:
We recommend that the Home Office, the Foreign Office, and the Commonwealth Office should jointly examine what other improvements could be made in the administrative arrangements for the issue of entry certificates and visas, with a view to avoiding delay in the consideration of applications and ensuring that all officers assigned to these duties are fully equipped to discharge them.
That paragraph gives one some indication of the kind of care which the Committee recommend should go into an increase, let alone making the entry certificate requirement compulsory. I would ask my noble friend: has this work been done? Can it be done in the short time that is at the Government's disposal?
In paragraph 127, the requirements are even more clearly stated, when the Wilson Committee are dealing with appeals from refusal of entry certificates, and dealing with them only in the very limited context of a non-mandatory system. They say:
It is to be expected that a high proportion of unsuccessful applicants for entry certificates and visas would appeal. Although entry certificates and visa officers already have occasion to prepare reports on cases when replying to representations or referring cases to the Home Office, it is clear that the task of drawing up reports for the appellate authorities on all cases taken to appeal would impose a heavy burden of work which, at posts which have to deal with any considerable number of applications, could not be borne without some increase in staff. We were told that it has for some time been the policy of the Government to avoid any increase in the size of the Diplomatic Service. The establishment of a system of appeals must inevitably result in new demands on manpower.
§ That is all the more the case under the proposed Amendment. One would wish to know much more about the question of time. I have been informed that the average delay in granting an entry certificate is six months and, in many cases, 18 months. That may well go up considerably, now that this proposal is being made. Have the Government taken adequate steps to ensure speedy, efficient and just administration of the scheme? In practice it is only wives and children coming to join husbands and parents over here who give rise to the difficulties. One might take the common case. I am sure, of a child of ten or younger in a remote Indian village who up to now has been able to come to this country when his parents call for him. This boy has now to go and apply for an entry certificate at a High Commission office some hundred, or two hundred or possibly more, miles away. Is this reasonable?
§ LORD STONHAM
I am sue my noble friend will agree that that small boy now will have to go through a number of formalities which he is quite incapable to undertaking himself, and that somebody else does it for him. I am referring to the ten-year-old boy who has been spoken about. Someone else would obtain the entry certificate.
§ LORD GIFFORD
I appreciate that he may well have assistance. But of course some of the principal witnesses, perhaps the two principal witnesses, who might help him to establish his case may be in this country. That will mean that different people have to interview the parents and interview the children, and that will cause delay. I only want to know whether these considerations have really been carefully thought out. Is it certainly open to the High Commission staff to be able to travel in all cases to these areas of high migration?
I now come to consideration of the appeal provisions. Here again I. must say that I am very disturbed about the effectiveness of the proposed provisions for appeal against refusal of an entry certificate. The matter will be considered by a member of the High Commission staff in the country of origin. The appeal will he considered by an adjudicator in London. It will be a paper appeal, except in so far as people may make representations here, before the adjudicator in London, on behalf of the appellant 1111 so far away. I am told that in many cases where representations are at present made the mistakes which have been made (and it is mistakes that we are considering in this Bill) are mistakes which can only be sorted out by the same person seeing the parents and seeing the applicant—the boy or the wife in question—or at least the appellate authority, the reviewing authority, seeing the person who is making the application to come in.
It is going to be very difficult. I am advised that certainly it is the opinion of the National Council for Civil Liberties that it will be well nigh impossible to establish across the water, without having the applicant before the adjudicator. that a mistake has been made. In a subsequent Amendment I shall certainly be asking about the possibility of adjudicators sitting in the countries of origin.
I certainly wish to be constructive about this proposal. and in concluding my comments I make three points. First of all, can this new law be administered, at any rate in the early stages, flexibly and humanely? Of course, the Amendment does not say that it is mandatory for a person to have art entry certificate: that he must be refused entry if he does not have one. All it says is that he will not have an absolute right to enter this country unless he has an entry certificate. In cases, first of all in the transitional period, where it has been impracticable to obtain an entry certificate, may we know more about the assurance, which I am glad has been given, that special arrangements will be made? And even after the transition period, if it appears that an immigrant who has not got an entry certificate has some good reason for not having one—for instance, the procedure may have taken so long that he is nearing the age limit—will it be possible for him to appeal when he arrives and try to make out a case that it was very difficult, or impossible, for him to obtain an entry certificate?
Secondly—and I turn to the Amendment to the Amendment, which raises a slightly different point—under the proposed change, which changes the Commonwealth Immigrants Act 1962 which itself has already been changed by the Act of 1968, an immigration officer has no power to refuse a dependant if he is 1112 satisfied that he holds a current entry certificate granted for the purposes of the Act and if he is also satisfied that he is a dependant of the person in question. in practice I am sure that few people with valid entry certificates would be turned away, but it seems to me that there should be no reason whatsoever why people should be put in jeopardy twice, or should have to prove their case twice. I can see that people who have a forged entry certificate of course should be turned away, but then they would not have a current entry certificate granted for the purposes of the subsection. I can see that if they hold an entry certificate granted to someone else they should be turned away, because there again they would not have an entry' certificate granted for those purposes. But, apart from that, I do not see why, if we are making entry certificates virtually compulsory, we cannot at least say, "If you have obtained your certificate and it is a valid one you have a right to come in."
There seems to be some confusion in the Government in this matter. The Home Secretary in the other place, in reply to a Question on May 1, saidIf the entry certificate was genuine there would be no challenge. If it were not thought to be genuine, there could be a challenge. It was for that reason that I introduced the qualification."—[OFFICIAL REPORT, Commons, 1/5/69, col. 1635.]That I would agree with. The fact that a certificate has been forged should in my view be the only reason for turning away someone who holds one. On the same day my noble friend Lord Stonham said:It is because you have given false information and made lying statements which have enabled the certificate to be granted. We know that they are lies and therefore we refuse admission. We do this now to the extent of some 3,000 cases."—[OFFICIAL REPORT, 1/5/69, col. 964.]I am sure he was not referring to 3,000 cases of people holding entry certificates and being turned away, because I believe the number of such people was only about 63 in the last year.
Is it right—it may affect only a minority of cases—that someone who has had his case adjudicated upon by an officer in the country of origin should again risk having it adjudicated upon when he arrives at the airport if it is 1113 alleged, for whatever reason, that in fact he made a lying statement or obtained the certificate by fraud? It is like saying to a man who is acquitted of a criminal charge, "We now find out that you lied at your trial and therefore we will retry you." A man has to go through one of these troublesome procedures either in the country of origin or at the airport, but he should not have to go through the procedure twice.
I am not absolutely sure whether my Amendment makes that point sufficiently clear and does what I hope it does. It is very difficult to amend an Amendment which is itself amending an Act which has already been amended; but certainly my intention is—and I do not see why it should not be acceptable—to make the holding of an entry certificate a qualification at least as good as holding a visa, and not worse—something which gives a person an absolute right which cannot subsequently be questioned. I apologise for taking up so much time of the Committee, and I beg to move.
§ LORD BROOKE OF CUMNOR
The noble Lord, Lord Gifford, in moving his Amendment to the Government Amendment, spent a great deal of time in making his own references to the Government Amendment. I am not criticising him for that, but I am in your Lordships' hands. I wish to speak to the Government Amendment rather than to the Amendment to the Amendment and I do not wish to confuse the debate or in any way to come between the noble Lord, Lord Gifford, and the Government. On the other hand, it might be more to the convenience of your Lordships to have a general debate and then the Questions could be put formally at the end. I think possibly that would result in a saving of time, and I feel sure that the noble Lord, Lord Stonham, would be able to keep in his mind the points raised by the noble Lord, Lord Gifford, in relation to the Government Amendment.
§ LORD STONHAM
Subject to the views of the Lord Chairman, that is what I had in mind. It really is one discussion, and indeed my noble friend Lord Gifford only in the closing part of his speech brought his Amendment forward as one of the three points on which he wanted information. If it meets the con 1114 venience of the Committee I shall be glad to sum up and at the same time to deal with my noble friend's Amendment to my Amendment.
§ LORD BROOKE OF CUMNOR
That fortifies me in speaking at this stage, but I am extremely anxious not in any way to prejudice the proper consideration of the Amendment to the Amendment.
It is within the knowledge of many of your Lordships that the noble Lord, Lord Stonham, has taken a great deal of personal trouble to acquaint himself with the immigration arrangements at the ports of entry to this country, particularly at London Airport. I cannot help thinking that there is a close connection between the personal study which has made of what is happening to would-be immigrants at ports and airports a id the bringing forward of this major Amendment by the Government. We have not had a great time to consider it and I may wish to revert to the subject on Report. Certainly for my part I have had no time to consider drafting any Amendments, even had I wished to do so.
I believe that the line which the Government are taking is right, because it has been a tenet of Conservative policy on this matter for years that the entry certificate procedure should become a main element of effective control. It is difficult to express the concept in precise words, but we have wholeheartedly agreed with the finding of the Wilson Committee that the point of test of right of entry should be in every possible case removed from the port of entry into this country to the country from which the immigrant comes. That may save the would-be immigrant a good deal of money. It may save him crucial nervous tension while he is kept waiting here for his credentials to be examined by the immigration officers, and it may enable him to get the whole matter settled satisfactorily before he leaves home. On those grounds I greatly welcome the conversion of the Government to the idea that the entry certificate should be an effective requirement for certain classes of Commonwealth citizens to qualify to come into this country.
There are, of course, questions to be asked and the noble Lord, Lord Gifford, has asked a number of them. It seems to me that if this new system is to work 1115 it is absolutely essential that there should be a substantial increase in the number of entry certificate officers in our High Commission offices in the countries from which would-be immigrants come. I have the greatest admiration for the British Civil Service, but it is quite impossible for men to do their work when they are given a tremendous extra load such as this proposal will give them, if there are not enough of them; and this extra load will hit the High Commission offices overseas very sharply. I know that the Government are extremely anxious that this change of policy shall be acceptable to all concerned, and it will be acceptable only if the would-be immigrants find that their applications for certificates are dealt with expeditiously in the High Commission offices overseas.
There will also be the question of appeals, and the adjudicator considering the appeal will be in this country and not in the overseas country, unless a later Amendment to be moved by the noble Lord, Lord Gifford, is accepted. Here, too, it will be necessary for the procedure to be expeditious because I can imagine few things that will do more harm to Commonwealth relations than if it were felt by would-be immigrants to this country that this remote British Government and Parliament had set up new machinery which they thought would work in theory but which in practice seemed to take such an intolerable time that it came to be regarded as an intentional obstacle in the way of the Commonwealth immigrant. So far as I can see, all these details can only be overcome by adequate staffing both of the High Commission offices overseas and the offices concerned with the hearing of appeals in this country, both by the adjudicators and by the Tribunal.
The noble Lord, Lord Gifford, made the important point that some of the dependants are subject to a time limit. That is because they lose their right of entry when they reach their 16th birthday. I do not know whether the Government have gone into this carefully, but clearly it would be important to ensure that a suspicion does not arise that a young man who is nearing his 16th birthday will have his chance of entry into this country frustrated and destroyed by dilly-dallying on the part of the officials 1116 handling the matter. I am not suggesting for one moment that there will be dilly-dallying but this is a matter which is charged with suspicion and it is important, if this new system is to work, that every possible step shall he taken to minimise these suspicions.
Finally, I trust that the Government will talk this out thoroughly with the voluntary organisations at this end. It seems to me that we must depend on the voluntary organisations to a great extent if this scheme is to be worked successfully. The Government will need the advice of those voluntary organisations as to the detailed working of the scheme, and they will also need the practical assistance of the voluntary organisations, both here and, in some cases, at the other end if it is to work successfully.
I support the Government in seeking these new powers, although it is unusual for such a major change in a Government Bill to come along at such a late stage, when it has been through every stage of its progress and debate in another place. Whether this was of intent or whether it was because the Government only at this late stage were driven to the conclusion that they must make the entry certificate a necessity, I cannot tell; nor am I really much concerned to inquire into that. We have this change introduced at a late stage in the Bill; we shall still have time between now and Report stage to examine more closely the precise wording and we shall he indebted to the noble Lord, Lord Stonham, for anything further he can tell us in reply to the questions which have been asked in this debate.
THE LORD BISHOP OF BIRMINGHAM
Coming from a diocese which has so many immigrants, I want to say, first of all, that I welcome this Amendment very much because it mitigates a great deal of the heartbreak and pain of those who have to wait so long and of so many who have to be returned to their own country. I also am very anxious that the questions which have been put by the noble Lords, Lord Gifford and Lord Brooke, should be cleared up.
There are really two main questions. One is about the officers of the High Commission. In the West Indies that will not be a great problem; but it seems to 1117 me that in Pakistan and India a great deal of care will have to be taken. I am sure we shall have a full answer as to what plans are being made for increasing the staffs there. The other question concerns appeals, and most of the difficulties have already been put before us. I do not want to have another debate, an hour long. on the question of whether the appeal is on political grounds, judicial grounds or compassionate grounds; but all these three have to be taken into consideration, and the committee who form this appeal body will have to be in very close liaison with the people at the other end to be able to decide whether, as a matter of law and of fact, a particular person is or is not the wife, or the son or daughter. And then all the other questions, political and so on, will have to be carefully considered. I hope that the appeal procedure will be adequate and not take too long. On the whole, however, I welcome this Amendment of the Government.
§ 7.3 p.m.
§ LORD FOOT
I do not want to introduce a dissenting note into this debate, but I want to oppose this Amendment. I agreed with the noble Lord, Lord Stonham, when he described it as a very important Amendment. It is indeed important because, as I shall hope to show in a minute. it totally upsets the whole balance of the Bill that was presented to us at the time of the Second Reading: it is a major transformation in the Bill. I hope I shall receive the indulgence of the Committee if I speak for a little longer than may be normal on Committee stage, because in one sense what we are debating to-day is a Second Reading of the Bill.
The concern we felt when we heard the Statement by the noble Lord. Lord Stonham, on May I was, first of all, what would be the effect of this Amendment and the consequences for the intending immigrant. Secondly, what caused concern was that there should be this radical reversal of the whole position which the Government had take up over the last eighteen months upon this question of compulsory or voluntary entry certificates—a complete reversal, at the last hour, of the Government's position. And I am afraid that any suspicions which I may have in the matter are in no way allayed by finding that this Amendment 1118 is received and welcomed by the Tory Party and by the noble Lord, Lord Brooke.
May I, very briefly, rehearse the history of this matter since this question of voluntary or compulsory entry certificates became a matter of public controversy and a political issue? Your Lordships will remember that the question of whether we should have a system of entry certificates, voluntary or compulsory, was canvassed and discussed by the Wilson Committee. Paragraph 68 of the Committee's Report makes it perfectly clear that they had considered this and fully appreciated the benefit and value of intending immigrants' seeking and obtaining an entry certificate before making their way to this country. The Committee said, in paragraph 68:… the entry certificate was introduced for the convenience of Commonwealth citizens; and it has obvious advantages for those who use it. When such a certificate is granted the Commonwealth citizen who has properly obtained it has normally a virtual guarantee of admission. When it is refused, the Commonwealth citizen not only saves tie cost of his fare but is relieved of the strain of waiting in a kind of no man's land for his fate to be decided at the port. From the point of view of the Home Office, too, it is desirable to reduce as far as possible the number of difficult cases which first arise for decision at the port of entry.All the matters to which the noble Lord, Lord Stonham, has referred to-day, the hardships which fall upon the person who comes to this country and s then either turned away or detained while inquiries are made into his situation, were within the contemplation of the Wilson Committee. Nothing has changed since that time. The situation to-day is the same as it was in August, 1967, when this Committee's Report was published. But in spite of the consideration of all the advantages of the entry certificate, the Wilson Committee came to the clear conclusion that it would be unjustifiable to impose what is now being proposed by this Amendment—that is, a system of compulsory entry certificates. The words in which they expressed that conclusion (they appear in paragraph 70 and they have been quoted many times), were these:After careful consideration we have come to the conclusion that it would not be right to make the use of entry certificates compulsory. As the great majority of aliens who come to the United Kingdom are free from 1119 the visa requirement, we consider it would be out of the question "—and I would underline the words, "out of the question"—to impose upon Commonwealth citizens the same requirement under another name. The right course in our opinion is to make it clear to all concerned by every possible means of publicity that the entry certificate is a facility offered to immigrants in their own interests, which they would be foolish not to use.I say that, as a result of this, this matter of whether the production of certificates should or should not be compulsory has been a subject of public controversy ever since the publication of that Report.
What has been the position of the Government? Until last Thursday, May 1, the Government's position had been perfectly clear. They had expressed the same position throughout: that they were not prepared to agree to making the entry certificate compulsory. They took that view on two grounds. One was that they thought there were very considerable administrative objections; and the second was the principle to which the Wilson Committee had drawn attention: that it would be to discriminate against the Commonwealth immigrant and in favour of the alien, because in the great majority of cases the alien would be subject to no such requirement. That has been the position of the Government throughout.
The next thing that happened in the field of immigration after the publication of the Wilson Report was, as your Lordships will remember, the Commonwealth Immigrants Act of February, 1968. There again amendments were made to the whole immigration procedure. If the Government had thought it right to introduce a compulsory entry certificate, why did they not do it at that time? Then we come on to the debate which occurred in November, 1968, in the House of Commons on the Expiring Laws Continuance Bill. Mr. Callaghan, the Home Secretary, spoke upon the subject, and there again he deployed the arguments that it was administratively very difficult to introduce the compulsory entry certificate and that it would be discriminating against the Commonwealth immigrant as compared with the alien.
In January of this year we got this Bill, presumably the distilled wisdom 1120 of the Government's thinking over the last 15 or 18 months. There was no mention whatever of an intention to introduce a compulsory entry certificate. The Bill had its Second Reading in the House of Commons, it went through the Committee stage in the House of Commons, four days between February 6 and 18 were devoted to the consideration of the Bill, and there was no suggestion from the Government that they were proposing to make this fundamental alteration in the Bill. On March 27 it came to this House and we had a Second Reading debate in which I was possibly unwise enough to congratulate the Government upon what they were intending to do. Now, only last Thursday, the Home Secretary comes to the House of Commons, and the noble Lord comes here and repeats the Statement, saying that it has been decided after all to make this major alteration at the last possible hour. I ask, why? Why is it that the Government are now abandoning the position that they have taken up over these last 15 or 18 months?
I must say I was astounded to listen to one explanation given by the noble Lord, Lord Stonham, of why it was being done in this way. If I understood him correctly he said that it had been decided to introduce this major Amendment at this late stage in order to prevent a rush of immigrants to try to defeat the Bill. I hope I misunderstood him, but if I understood him correctly, what we are asked to believe is that it has all along been the intention of the Government to introduce a system of compulsory entry certificates. When we in this House had this Bill presented to us on Second Reading, and indeed when the other House had the Bill presented to them on Second Reading and when it went through its Committee stage there, we were just being fooled. Apparently, according to the noble Lord, the Government had the intention from the very beginning of introducing this major Amendment at this late stage in the affair.
What is the consequence of an Amendment to the Bill at this late hour, of introducing this Amendment as a sort of postscript at the last possible moment? The first consequence is that there has been no debate whatever in the House of Commons upon the principle of this Amendment. The second is that because of the announcement of the Government's 1121 intention being made only on Thursday last, there has been no opportunity for any kind of public debate upon this most important matter of compulsory entry certificates.
§ LORD GRIDLEY
May I interrupt the noble Lord? Is he saying that there has been no debate in this House or in another place about the policy or question of entry certificates generally, and that its wide application has not been discussed?
§ LORD FOOT
No. I am much obliged to the noble Lord for his intervention, because it enables me to make the point clear. I am not saying that this matter has not been discussed in another place, but that it has not been discussed in the context of the Government's proposal that there should be a compulsory entry certificate. The context in which it was discussed in the debates which they had in another place on Second Reading and in Committee was that the Government were opposing a compulsory certificate. The result is that there has been no opportunity of arguing with the Government as to the merits or otherwise of this proposal.
The third consequence of introducing this Amendment at the last possible moment is that there has not been any opportunity for discussion between the Government and the voluntary bodies which are responsible for trying to make the immigration system work. The last consequence is that we who are debating this major alteration here to-day have had knowledge that it was going to be introduced only since last Thursday; we have had knowledge of the details of the Amendment only since last Friday morning.
That might not matter much had this been a minor issue, but in my submission it is a matter of major importance. I suggest that this Amendment, if carried, alters the whole balance of the Bill. I say that because as the Bill stands at this moment and as we contemplated that it would stand when we gave it a Second Reading, the great majority of the appeals that would be heard under this Bill would be heard here in this country and would be appeals by people who were being excluded from this country at the port of entry. According to the Wilson Report, only one Common 1122 wealth citizen in five who comes to these shores is in possession of an entry certificate. Therefore, the great majority of the appeals would have been heard in this country and of course would have been concerned with the question of whether on arrival at one of our ports a particular person was to be excluded. But as the Bill is proposed to be amended, the great majority of the appeals will not be concerned with the exclusion of people from this country when they arrive at the ports, but with whether the person ought to be granted an entry certificate in his place of origin. That is the vast change which is effected in the whole balance of the Bill by this Amendment.
When we were discussing this matter on Second Reading, I think I am right in saying that everybody contemplated this structure of adjudicators at the ports—80 or whatever the number is—and above them the appeal tribunal, all designed primarily to deal with appeals by people reaching the ports of this country. That was the way in which the matter was presented to us. But if this Amendment is carried, the major work of appeal will not be done by these adjudicators at the ports. It will be done by adjudicators in Whitehall, by the people to whom the appeals will come from all the different countries of origin. That is the complete change which has been made in the whole balance of this Bill.
Not only will that change occur, but appeals against the refusal of a certificate will be appeals of an entirely different character from appeals against an immigrant's exclusion from this country. I say that for this reason. The characteristics of the appeal here by the immigrant who is stopped at the port are these. First of all, it can be a quite speedy procedure; it can take place almost at once. The immigrant can be taken before the adjudicator, perhaps within 24 hours. The second characteristic of the appeal here is that the proceedings are oral. The third characteristic of the proceedings here is that the immigrant has the advantage of the advisory organisation to help and assist him in presenting his appeal. The fourth and most important aspect and characteristic of an appeal of that kind, is that the immigrant confronts the people who are trying him; he is present, and he can 1123 hear it all said and he knows what is going on.
When I took leave to support this Bill on Second Reading the matter which influenced me perhaps most was the thought that it was well worth while to spend half a million pounds if only you could establish a procedure which, through the mesh through which he had to go, would be seen to be fair to the immigrant. Those are the advantages of the appeal procedure which we had in contemplation at that time. But when you are dealing with an appeal against the refusal of an entry certificate in the country of origin, all those advantages are lost, because the procedure then is quite different.
I need not go into detail at this late hour, but as has been explained, what happens, according to the Wilson Committee Report, is that the applicant goes first before the official of the High Commission and makes his application. If he is refused and he then lodges an appeal, the official has to prepare a report. The applicant has to be given notice of his right of appeal, he has to be told of his right to submit written observations, and to get written replies, and the whole matter is then posted through into this country. In this country the matter is decided upon the basis of the documents. The applicant is not present and he has no opportunity of seeing for himself whether his case is or is not properly and adequately considered. Those are the merits which the other appeal system has which seem to me now to have been cast away.
I appreciate that there are advantages in the entry certificate system. Indeed, I appreciate that entirely, as did the Wilson Committee. It is, of course, a terrible hardship if somebody reaches these shores and is then sent back again with the disappointment of all their hopes. It is also a very grave thing if an individual, especially a child, especially perhaps a woman, is detained at the port of entry for a period of time, possibly in detention, while his or her claims are investigated.
Against that what are the disadvantages, as I think the major disadvantages, of this Amendment? I ask the question: what sort of delay is likely to be imposed upon applicants in their place of origin under this procedure? 1124 The first thing that will impose delay is the actual requirement of applying for the entry certificate, but that may be a comparatively minor matter. The next thing that will impose delay is this. Because you cannot have an oral hearing there and then but a report has to be prepared which has to be sent to this country in order to be decided by an adjudicator. or possibly even by the Tribunal in this country, you are going to have a possibly indefinite delay at that time.
But that is not the end of the story at all, because inevitably there will be a vast increase in the number of appeals against the refusal of entry certificates. I say that for two reasons. One of them is that in the Wilson Committee's Report they gave a clear warning—and some reference to this has already been made—that this would impose a very heavy administrative burden on the High Commission officials in these countries of origin. That is contained in paragraph 127, and I want to make only one quotation from it. After speaking about the extra burden that is to be imposed upon the High Commissions, it says:Any attempt to put the proposals into effect without an increase in staff engaged in entry certificate and visa work overseas, at those posts where such an increase is necessary, would he unfair both to the applicants whom our proposals are meant to benefit and to the officials who are expected to administer them.They gave the clearest possible warning that the present structure is insufficient to enable these appeals to be dealt with satisfactorily. That is not the end of the story, because once the requirement for the entry certificate is made compulsory you will have a great multiplication of these appeals, perhaps as many as five times as you would have under the voluntary system. Therefore, you are going to have the burden upon these High Commissions increased to that extent.
I apologise for detaining the Committee for so long, but I would conclude by saying this. Is there any reasonable alternative to this decision of the Government to impose a system of compulsory entry certificates? I suggest that there is. I suggest that the Wilson Committee were right in saying that the voluntary entry certificate is far preferable in principle to the compulsory certificate, and one of the ways in which you 1125 can overcome the difficulties is by seeing that adequate advice and assistance in applying for voluntary entry certificates is given to the applicant in his place of origin. That is what is proposed by the Joint Council for the Welfare of Immigrants, that there should be a massive increase in the assistance given by the Government to these voluntary advisory organisations in these different Commonwealth countries so that the intending immigrant can there be advised quite clearly, in advance, of all the benefits of getting an entry certificate for himself. It is not as if we are faced with this Amendment or nothing. In the opinion of many people who are equipped to know, this problem could be very easily dealt with if only the same sort of advisory assistance were given to people in their own places as is available to them, or as we are trying to make available to them, here in the ports of entry.
§ 7.26 p.m.
§ BARONESS GAITSKELL
I hesitate to jump in where only lawyers—and very eminent lawyers at that—seem to tread, but I wish to add just two sentences to this debate to underline a couple of points which inevitably, by this late hour, have already been made. I do not disagree with the principle of compulsory entry certificates, so long as the effective right of appeal, as was provided in the Bill, is preserved. But, I am a little uneasy that this same right of appeal may not be maintained to the same extent. It is essential to have a right of hearing. With this Amendment, as my noble friend Lord Gifford so ably pointed out in his speech, there is only a "paper" right of appeal in London. Perhaps the Government will give consideration to the setting up of adjudicators in the country of origin—as I hope my noble friend Lord Gifford will suggest in Amendment No. 21, and I hope that the Government will give this Amendment serious consideration.
§ LORD GRIDLEY
I shall detain your Lordships for only a few minutes, but I should like to make a few comments on the speech of the noble Lord, Lord Foot. I do not see that there is any obligation upon the Government to accept every statement in the Wilson Committee's Report. The Government can come to 1126 their own conclusions in this mater. A great deal has been said about all the difficulties that will arise from the mandatory imposition on would be immigrants of the duty to obtain entry certificates in the country of origin. But this could be, in my opinion, a matter of organisation and procedure. It leaves me with the very strong feeling that what noble Lords who are objecting to this are frightened of is that they will no longer be able to interfere in these matters as they do in this country at the present moment. I think the procedure is entirely humane—something which in that respect alone commends it.
One final word. I think it is unfortunate that in the Press of this country, when it was known and published that this Amendment was to be introduced in the House of Lords to-day, the usual suggestion was made that this was "an attempt to hold up immigrants from coming to this country." I think that the intention is quite clear. It is to help Commonwealth immigrants. I think that it is humane and that the Government can be commended on introducing the Amendment.
I sympathise greatly with the right reverend Prelate, and I much prefer to accept his version of what is good for the immigrant than that of the noble Lord, Lord Foot. I also have some sympathy with the right reverend Prelate because we have now had nearly five hours of debate and have not completed 11 Amendments. That is about a record for this House, but I do not think it is a great credit to us.
Having lived in India and Pakistan, man and boy, for about twenty years, I have been wondering which method is most likely to arrive at the truth as to whether a person is or is not a dependant. On the whole, I think tint the truth is more likely to be arrived at overseas than in this country. But in either case my heart bleeds for the unfortunate inquisitors who have to deal with the Orient in this matter. Your Lordships will have noticed a plea in The Times from Pakistanis wishing their Government to step more heavily on those who issue false certificates, and so on. To plough one's way through an absolute zariba of false witnesses, lies and so on, is a task which one would not wish anybody to have to undertake. But 1127 somebody has to undertake it, and it is much better done in the other country than here.
§ LORD WALSTON
This has been a long debate, and I think it should be a long debate because I have a great deal of sympathy with the noble Lord, Lord Foot, in the strictures that he made. He spoke very cogently, and I felt that some of the things he said were the truth. It is unfortunate that the Government have introduced this extremely important Amendment at this stage of the Bill. I wish it could have been part of the Bill so that we and another place could have discussed it at more leisure. But, for all that, I believe that in principle the Amendment is right.
Anybody who has been to London Airport, as the noble Lord, Lord Stonham, and other noble Lords and I have done, and has seen the waste of manpower and time, and the strain on the immigration officers, who has seen the extra cost which is imposed upon the unsuccessful immigrants and upon the airlines which have brought them—or even upon the successful ones who are detained for days or weeks at somebody's expense—and who has seen, above all, the very great human problems involved when people arrive here and are then refused entrance, or are in doubt whether or not they will be allowed in, must welcome in principle anything that will alleviate that situation.
It is certainly true—and I agree with the noble Lord who has just spoken—that in so many of these questions, about the degree of family relationship, age and so on, the decisions are far better taken in the country of origin than in this country. But. for all that, there are many grounds for criticising not only the way this Amendment has been presented but the Amendment itself, or, perhaps more particularly, the likely results stemming from it. The Times to-day has a leader which many of your Lordships may have read. I shall just quote the final paragraph which seems to me very wise:The Government should make it clear that they will provide sufficient extra staff in the Commonwealth countries affected so that applications can be dealt with both thoroughly and speedily. It must also be a priority of policy that appeals from these decisions should be dealt with promptly.We have heard doubts from various noble Lords about whether this can be done. 1128 We have as yet heard nothing from my noble friend (though I hope we shall) about how this will be done.
We have already been told that this system has worked relatively well on a voluntary basis in the West Indies, but extremely badly in India and Pakistan. I suggest that one reason, at least, why this has happened is that in the West Indies it is rare for any would-be immigrant to have to travel more than 10 or 20 miles to get to the place where he makes his application. Everything is done on a small scale, a relatively friendly and personal scale. But in India and Pakistan, if there are to be only four of these places in each of those two great countries where certificates can be issued, as my noble friend Lord Gifford so rightly said, the applicants will have to travel many hundreds, and in some cases possibly thousands, of miles in order to get there.
May I interrupt the noble Lord? I am not certain of my facts, but I strongly suspect that the applicant will be represented by a pleader who will collect all the evidence and then present it at the High Commissio0ner's office.
§ LORD WALSTON
That may well be so in many cases, but the pleader himself will either have to travel from the village of the applicant, or will have to be in contact with him, and letter contact is not the best way of instructing a lawyer or a pleader. So that travelling will have to be done by somebody, and I hope that in most cases the applicant will make a personal application. However it is done, it is going to put an enormous strain on the people in our High Commissions who have to take on this extra job, which will be a vitally important one. Not only must they arrive at the right decision as nearly as is humanly possible; they must also appear sympathetic, understanding and knowledgeable, even to those people whose applications they turn down. An application cannot be dismissed peremptorily; it cannot be done through a series of intermediaries, secretaries and watchdogs of one kind or another. Some of your Lordships—
§ LORD GRIDLEY
Is the noble Lord suggesting that the High Commissions will not get the type of person who will 1129 deal with these matters satisfactorily? Is he suggesting that we will not get them?
§ LORD WALSTON
If the noble Lord will allow me to continue, I think I shall make that quite clear. Some of your Lordships may have seen an opera by Menotti, The Consul. Whenever we talk about these matters, pictures come into my mind of that devastating scene in the Consul's office, when the applicant for a visa was coming out from an Iron Curtain country. I am not suggesting that the officials of the British High Commissions who will have to deal with this sort of case will be like the character in the opera, although he was a kind man. I am suggesting two things. I am suggesting, first of all, that there must be sufficient of them so that they are not overwhelmed by work and so that they can give the attention which I am sure they themselves would want to give, instead of having to go through a whole sheaf of papers in the pending file on their desk; or, alternatively, having to delay an application for month after month. Secondly—and I hope that the noble Lord will be able to give an assurance when he come; to speak—I hope that these officials who have to do this job will be selected because of their knowledge of the country to which they are sent, and of its local conditions—not just the capital city—and that they will be left there long enough, so that the knowledge which they acquire painfully over the years for themselves, and possibly for the applicants, will not be wasted by transferring them after three years to some entirely different job. I hope that the noble Lord will be able to give us some assurance on that point, because the calibre of the man who has to do this work, and the number that there are to cope with these figures—which on the noble Lord's own figures must be at least eight times the present number—is enormously important.
My other point—and, naturally, this has been dealt with by other noble Lords—is on the question of appeals. I quite accept that when there are appeals on a matter of law it is perfectly possible for the appeal court, whatever you may want to call it, to sit without seeing either of the contestants or disputants. The evidence can be read and a decision on a matter of law can he given. But when 1130 it is an appeal simply on a matter of credibility, I do not see how it is possible for any adjudicator, no matter how experienced, no matter how wise, to sit, whether it be in Whitehall or in Heathrow or anywhere else, and decide whether Her Majesty's High Commissioner's representative in Madras was right when he said, "I do not believe this young man who says that he is 15", or, "The young man was right when he said that he was 15". That at is the type of dispute which al the present time is so often the substance of an appeal against the decision of an immigration officer. There are some which can he dealt with at a distance without seeing the people themselves; but the majority of appeals, I believe, are those which involve purely the credibility of the witness or the witnesses.
Therefore I strongly support (even though I do not believe that, strictly speaking, we have come to it yet) the Amendment which will be moved by my noble friend Lord Gifford. In my opinion, if this system is to work equitably and justly, and if it is to be seen by the Commonwealth countries to work equitably and justly and not be simply, as has been suggested by some newspapers, a device for keeping out more immigrants—I do not believe that myself, but that is what some people are already suggesting—then in the great majority of cases these appeals must be dealt with in the country where the dispute his in fact arisen.
I do not want to go into the detail of this subject too much, but it seems to me that in India and in Pakistan there must be a certain number of members of the British Bar who are practising there, who have experience of that part of the world, who are wise and unbiased men and who might serve as adjudicators, just as they would be able to serve as adjudicators if they were resident in this country. I ask my noble friend earnestly to consider this possibility: not necessarily to give us an answer to-night, but to look closely into this possibility of having at least a portion of the appeals dealt with in the countries in question. The general idea behind the Amendment is right. The hurried way in which it has been introduced quite naturally arouses suspicions in the minds of many people who are not normally suspicious, but those suspicions can be allayed if we are assured by my noble 1131 friend that the points which have been raised tonight will be taken into consideration before the final implementation of the proposal in the Amendment.
§ LORD WADE
The Amendment moved by the noble Lord, Lord Stonham, which we have before us is the equivalent of a new Bill, and we therefore have a duty to debate it. I think we all agree that it is most important to reduce the numbers waiting at the airports and other places of entry, but that does not absolve us from the duty to examine carefully a major change in the law such as this. There are two questions which we have to ask ourselves. One is whether it will affect the number of dependants who will be admitted, and the other is whether the procedure will be as fair and humane as possible. I am not going to dwell on the first question except to say that I accept what the noble Lord, Lord Stonham, has said. Nevertheless, I can see some Government in the future using this administrative procedure as a means to restrict the number of those who would otherwise be entitled to come here.
So far as the humanity of the procedure is concerned, we must recognise that there are delays in dealing with applications for certificates of entry. I do not think there is any doubt that there have been delays. There is one case that is well known to the noble Lord, Lord Stonham, and with which I also have had something to do. I am not going to discuss it at length, but it is the case of a Mr. Bansal, of Huddersfield. He was very anxious that his brother in India should join him, partly on account of that brother's ill health. Mr. Bansal was anxious that his brother should be treated over here, and application for an entry certificate was made in March, 1967. It was not granted until May, 1968. Unfortunately, shortly before the entry certificate was granted the brother died, and therefore it arrived too late. The Joint Council for the Welfare of Immigrants confirms what I have said—namely, that there are these delays. I support those who press for advisory and welfare services in the countries of origin, and not only here. I commend what is being done by the voluntary bodies at, for example. London Airport: but it is most important that assistance should be given to such a body as the Joint Council 1132 to develop advisory services in the Commonwealth countries, even if we have only a voluntary procedure for entry certificates, and all the more so if it becomes compulsory.
I think it would not be inappropriate—and I am trying to cut my remarks to the minimum—if I were to quote from the statement made by the Joint Council for the Welfare of Immigrants dated May 2 of this year, in which they say:… advice is most urgently needed before potential immigrants apply for an entry certificate, as it is very often extremely hard to get an adverse decision reversed once it is made. Immigrants face exactly the same problems in applying for entry certificates as they do when they are refused admission at ports of entry to the United Kingdom—namely, lack of documentation in the matter of birth, death and marriage certificates. Without expert help on the spot to help them to establish proof of their identity and relationship with the sponsor in the United Kingdom. many will be refused entry certificates, and to expect to conduct a subsequent appeal by post from the United Kingdom is ludicrous. Whilst the hardship resulting from a refusal to admit will in this way be concealed from the press and public in the United Kingdom. therefore, it will continue in the countries of origin and may well he increased ".I think that is a genuine fear which must be met—and that brings us to the appeal procedure. I have read the speech of Mr. Callaghan in another place on November 30, 1968, which has already been referred to; and his argument that the proposal now put before us would create substantial administrative difficulties still seems to be sound. I shall listen with interest to what the noble Lord has to say in reply, but I am very uneasy about the way in which this proposed procedure is going to work out.
§ 7.48 p.m.
§ LORD STONHAM
I have listened carefully to this debate and have wondered sometimes how it was possible for some noble Lords completely to ignore, in effect, the fact that in the West Indies there has been virtually the equivalent of a compulsory system of entry certificates for some time. We have had experience of it. The noble Lord, Lord Wade, has just referred to long delays. I shall come to that in a moment; and the particular statement to which he referred is one which I am astonished that such a responsible organisation should send out, because it contains so many unfortunate inaccuracies. I have 1133 been asked the figures. My noble friend Lord Walston said that eight times the amount of work would be put on the authorities in India. That is a complete misconception of the additional volume of work. Let me give your Lordships the figures for 1968. In the case of the West Indies there were only two persons who held entry certificates who were refused admission. From India, only ten who held entry certificates were refused admission. This compares with not ten but a total of 1,263 persons who, in the same year, came here from India and were refused admission. That means that 1,253 out of those who were refused admission did not hold certificates of entry, and all those 1,253 wasted journeys could probably have been avoided.
§ LORD WALSTON
I am trying to clarify the point which I think my noble friend has misunderstood. What I understood him to say earlier was that only one-eighth of the Indians who came to this country had entry permits when they came. If, therefore, all of them have to have entry permits before coming, it follows that eight times as many will apply to the High Commission for entry permits.
§ LORD STONHAM
I should be grateful if my noble friend would allow me to come to that point in due course. I had not yet begun to touch that matter. I will certainly reply to all the points raised. If noble Lords do not agree with my replies that is unfortunate, but at least I shall try to base my replies on the facts.
Let me deal with Pakistan. Last year only seven persons from Pakistan who had entry certificates were refused entry; but a total of 719 persons coming from Pakistan were refused entry. This is a hundred times as many, meaning another 700 wasted journeys. Compare that with the West Indies.
I come now to my noble friend's point about the effect on the work of having compulsory entry certificates. If the number of Commonwealth dependants coming here for settlement this year is the same as last year, there will he a grand total, 1134 from all Commonwealth countries, of 48,650. Of these, there will be 18,718 from India These are dependants, the people we are talking about. But there were in that same year in India some 22,000 applications for entry certificates. If you compare the 18,000 that would have to be compulsory for dependants with the 22,000 certificates granted last year, you see that the amount of work is a little less than doubled. In Pakistan, the proportions were a little different, in that the work would be rather more than doubled: some 9,000 dependants as against some 7,000 applications for certificates. The exact figures for Pakistan are that 9,338 entry certificates were applied for in 1967, and the number of entitled dependants who made application to come last year was 12,535. Taking the two together, on the basis of last year's figures the work in India and Pakistan would be about doubled. I am not disputing for a moment that there will not be more work but there will certainly not be anything like eight times more work. I hope that that disposes of that point.
A great many points have been made. I think it will suit your Lordships' convenience if I deal first with the point raised by my noble friend Lord Gifford, because similar points have been raised by many other noble Lords. Many noble Lords, and certainly my noble friend Lord Gifford, wanted to know how the system of appeals would work, and they expressed very great concern about it. Of course there are bound to be uncertainties at this stage: but we shall most certainly do our utmost to make a success of the scheme. We are agreed—and I tried to make that clear in my first speech—not necessarily that there will have to be more centres, but certainly that there will have to be more staff, and more staff of the right quality. We have already had the training of immigration officers for this particular work; we have already decided to send additional officers with experience of this work from this country. They will be immigration officers and will know what it is necessary to do.
I would remind the Committee; that with regard to appeals in this country, about which my noble friend Lord Walston made a particular point, we have had appeals in this country from the Kenya Asians ever since last summer. 1135 Your Lordships are probably well aware that when we started this scheme last year—after the Act was passed in February—my right honourable friend the Home Secretary sent out two eminent Queen's Counsel. One came back within a month because there was not sufficient work for two. The other eventually came back. Another was appointed to go out, but because of illness did not go; and ever since last summer one of the original two barristers has been in this country to help out and has kindly been doing the work. There has not been a single complaint about this, so far as I am aware. On this point (this is rather anticipating my noble friend's later Amendment, but I must say it now) we just cannot now say that these appeals must be heard there. Certainly that is not our present intention; but if it should be found that the system was working unjustly, of course we would consider it. The suggestion of my noble friend about the Indian Bar is, naturally, another point that will be taken into consideration.
The system we are thinking of at the moment is that, upon deciding to refuse an entry certificate, the certificate officer will hand the applicant (or send him by post) a notice stating briefly the reasons for the decision and informing him of the arrangements for appeal. The applicant will also be given a form on which to give notice of appeal. The information supplied about rights of appeal will explain that the applicant can, if he wishes, be represented on the hearing of his appeal by a relative or a friend in this country or by a voluntary organisation here. All applicants for entry certificates as dependants will of course, unless the application is completely baseless, have sponsoring relatives in the United Kingdom. These are just the same people as those who come to London Airport and see them through now. Subject to the agreement of the voluntary bodies concerned (and we are having discussions with them on May 8) potential appellants will be given the names of one or more organisations from whom advice and assistance may be obtained—organisations not only in this country but in their own country. An appellant will be able to indicate on his notice of appeal whether he wishes to nominate anyone to represent him here.
1136 On receiving the notice of appeal, the entry certificate officer will transmit it to the Home Office, together with a report on the case accompanied by any relevant documentary evidence. There the case will be assigned to one of the lawyers whom my noble and learned friend the Lord Chancellor will nominate to deal with these appeals. Any person or organisation who has been named by the appellant to represent him will be sent copies of the entry certificate officer's report and other papers, and he will be notified of the date and place of the hearing. The decision of the lawyer who hears the appeal will be transmitted to the appellant through the Home Office and the entry certificate officer, and will also be made known to his representative.
The question may be raised whether the entry certificate officer's notice of his decision and the form which the applicant must complete if he wishes to appeal will be translated into languages other than English. This is a matter which will have to be considered in the light of local conditions. In India and Pakistan it has hitherto been found that the extra work and expense involved in translating entry certificate applications and the explanatory leaflets into the local language is not justified because so many applicants cannot read or write in any language.
The noble Lord, Lord Hawke, spoke about having to have a pleader, and I am sure that this is the point he had in mind. It is not a question of printing in any one of six or eight native languages; it is no good if the people cannot read that particular language. But those who are literate can understand sufficient English for the purpose. Oral explanations and advice will be available in their own languages at the entry certificate offices for those who cannot read any written material. Nothing of that kind will be neglected. I do not want to go into details of the actual reinforcement of the officers, but I can assure my noble friend, and noble Lords generally, that the staffs will be adequate, and that those we are sending out will be fully trained people.
My noble friend Lord Gifford raised a point about age limits in relation to entry certificate applications. This is a perfectly valid point to which I can give 1137 a very clear answer. The application will be decided in accordance with the circumstances at the time when the application is made. The noble Lord, Lord Brooke of Cumnor, also raised this point. If the applicant passes the relevant age limit after making the application, and while it is still under consideration, it will certainly not be refused on that ground. There may be a much wider range of considerations—marginal cases—which will all be covered by compassionate considerations, but on that one case I can be very definite.
My noble friend asked whether the new provisions will be administered flexibly. The short answer is, "Yes". In the transitional stage we cannot do more than repeat that if firm arrangements are made to travel before there is a change in the law which could be known, the person will not be refused. There is no question about that at all. After that, when we talk about "flexibility", it will depend on how exceptional are the circumstances. If the circumstances are exceptional they will be taken into consideration. But we have to stick to the rules and this is in the best interests of the immigrant. No one has ever disputed that the present law here is administered humanely. That it is has been said many times and not only by myself; and it will continue to be so administered in the future.
My noble friend also referred to paragraph 80 of the Wilson Report, about the improvements required in the entry certificate system. He asked what progress has been made. Many improvements have been made. One example is that we have a longer course of training for new entry certificate officers in this country, and this includes attachment to the immigration service at London Airport. There are many other improvements of this kind. My noble friend alleged—I think he was speaking of the West Indies—that it takes from six to eighteen months to obtain an entry certificate. This just is not so. I will come to the case of the Bansal brothers in a moment, but most entry certificates are granted without any reference to the United Kingdom at all; they are granted overseas and they are issued promptly.
The point is that there are entry certificates and entry certificates; there are genuine cases, marginal cases and cases that are not genuine. The very marginal 1138 cases and the cases which are not genuine naturally take a long time. Where there has been a reference to the United Kingdom there may well be some delay. But these are the cases of people who, if they came without entry certificates, would be subject to a long examination; almost certainly to detention and perhaps would have to return to their own country. It is better, therefore, for there to be a delay while the matter is considered in their own country than to have them over here subjected, in their thousands, to the kind of conditions that exist.
The noble Lord, Lord Wade, on this point, referred to Mr. Bansal—the two brothers. The precise reason why this case took so long was there was no entitlement to enter, no entitlement at all. The only reason why entry was eventually permitted was for compassionate reasons, because of the health of the brother. It was a great pity that a decision was not taken before the man died; but the brother had no entitlement, and it is quite wrong to quote that as a typical case.
My noble friend asked about the bailing of prisoners under the appeal system which, he said, would reduce the need to make entry certificates compulsory. The power to grant bail will do nothing to reduce the need for examination or the length of examination on arrival. It will not reduce the delay and suspense before the decision is known. It will not reduce the number of refusals and fruitless journeys and disappointed hopes. This is the whole crux of the matter. So many noble Lords, although they deplore what goes on at London Airport, do not seem to realise that we have to prevent it.
It is all very fine for the noble Lord, Lord Foot, to quote the Wilson Committee Report at length; but the fact remains that we did these things. I said in my speech that we have been trying very hard indeed to persuade people voluntarily to take out entry certificates, but with almost nil results. The noble Lord said that there had been no change in the position. In fact there have been enormous changes. When the Wilson Committee considered India there were only 200 refusals. Last year there were more than six times that number of refusals. Would not the noble Lord say that that was a change? We cannot, we 1139 must not, ignore these things, and the very real suffering. There will be more work but we shall have the people to deal with it.
If I may, I will now deal, briefly, with my noble friend's Amendment to my Amendment, which is only one of the many points he made. I wish to read to him a piece that I took out of The Times only this morning. It was headed:Call to end corruption.The call does not come from the Home Office. As the report says, it comesfrom the Pakistan Immigrants Welfare Association in Bradford, which looks after the interests of more than 1,000 members of the local immigrant community…".The report goes on:Mr. Saleem Khan, the association's secretary, expressed qualified approval for the new measures"—that is to say, the measures we are now considering—and added: 'We shall petition the Pakistan Government to introduce severe penalties for officials who are found guilty of issuing fraudulent documents for personal gain.'I am not talking about the volume of this; I am merely saying that here is a Pakistan gentleman in this country, who is in a very responsible position—he is responsible for 1,000 of his compatriots who arc here—and is worried about corruption, about forgery, in Pakistan.
My noble friend Lord Gifford, in his Amendment to my Amendment, wishes to add:a current entry certificate granted for the purposes of the said subsection (2)(b) or (2A) shall be conclusive evidence that he is so entitled.We cannot ignore this point about forgery. My noble friend argued that if the document was forged, then it would not be a certificate of entry according to this subsection. I am afraid I cannot accept that this would be the case. The only reason for the inclusion of this provision in my Amendment is the forgery which we know goes on. I can tell my noble friend the number in all categories with entry certificates who have been refused entry in the last few years. In 1965, the number was 76; in 1966, 47; in 1967, 61; in 1968, 49. It varies between one in 12,000 and one in 20,000. I think this is the argument for the Amend 1140 ment. An analysis made for the Wilson Committee of 36 cases in which people were refused entry in a 12-month period shows that 21 sought admission as visitors, 10 as students, one as a fiancé, one as a fiancée, two were dependent children and one was a returning resident. None were in the category we are discussing. I think we have a good record in this matter, and I hope that my noble friend will accept that his Amendment should not be pressed. If he presses it, I should have to ask the Committee to resist it.
I am grateful for the contribution of the right reverend Prelate the Bishop of Durham, who spoke for the people of his diocese. He asked about the nature of an appeal. I would say to him that in dependants' cases the appeal would be largely on fact, and once the fact is established political and compassionate considerations will not arise. The certificate will cover as of right, if the entitlement to admission is established.
In some discretionary cases—for example, children over 16—there may arise compassionate circumstances to be considered: the extent to which a young person is genuinely dependent on a parent here or another relative is genuinely in need of a sponsor in this country. Then the appeal would extend to consideration of the compassionate circumstances, as well as to the facts, but politics would never enter into this consideration at all.
I have dealt in part with the speech of the noble Lord, Lord Foot. He was critical of the Government and asked whether they had intended this change all along. It is not the case that the Government all along intended to amend the Bill in this way. This House was informed on the same day as the Government took this decision. As I pointed out in my speech, the decision to amend the Bill was prompted by the fact that in our view it was very necessary to make this amendment while we have this legislation before Parliament. Whatever the noble Lord may think, for practical and very real reasons this is a desirable change. The intention to make the change could not be made known too long before it went on to the Statute Book, and therefore there could not be any question of introducing this change by a separate Bill.
1141 My noble friend Lady Gaitskell said that she did not disagree with entry certificates but was doubtful of success if they were only adjudicated here and not in the country of origin. I think I can assure my noble friend that this point will be considered, if it becomes necessary, but our experience in these matters does not lead us to the view that it will be necessary.
I think I have covered the main points raised by the noble Lord, Lord Brooke of Cumnor, except his point that the Government must now talk this over thoroughly with the voluntary organisations here and overseas. I think this is vastly important. The procedure cannot succeed unless we can have the advice, the help and the co-operation of the voluntary organisations. As they serve so many people here and overseas, I hope that these organisations will co-operate with us and give us their help and advice, because I am completely convinced that the move we are making is very much in the interests of all the people who will be coming here.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ LORD STONHAM moved Amendment No. 12:
§ After Clause 19, insert the following new clause:
§ Liability of owners or agents of slops and aircraft for expenses incurred in respect of persons directed to be removed from the United Kingdom.
§ ".—(1) Subject to the provisions of this section, where directions are given under para1142
§ name. On the main debate we shall all have to consider carefully the facts and figures given and no doubt shall have to ask for some more before the next stage. I do not intend to press this Amendment. My noble friend referred me to a letter dealing with forgery. I hope that I made it clear that in a case of forgery the holder of a forged entry certificate should not have the right of entry. I have no doubt that my Amendment to the Amendment is technically deficient. I understand that it is only in the case of forgery—and there are only a few of those—that the question has to be reopened, and that in other cases there will be no question of going behind the entry certificate. For these reasons I beg leave to withdraw my Amendment.
§ Amendment to the Amendment, by leave, withdrawn.
§ 8.20 p.m.
§ On Question: Whether the said Amendment (No. 10) shall be agreed to?
§ Their Lordships divided: Contents, 42; Not-contents, 5.1141
|Albemarle, E.||Greenway, L.||Raglan, L.|
|Belstead, L.||Gridley, L.||Rankeillour, L.|
|Beswick, L.||Hawke, L.||Ritchie-Calder, L.|
|Birmingham, Bp.||Hilton of Upton, L. [Teller.]||Royle, L.|
|Blyton, L.||Kennet, L.||St. Davids, V.|
|Bowles, L. [Teller.]||Kinloss, Ly.||Sandford, L.|
|Brooke of Cumnor, L.||Lansdowne, M.||Serota, Bs.|
|Burden, L.||Leatherland, L.||Shepherd, L.|
|Champion, L.||Llewelyn-Davies of Hastoe, Bs.||Soper, L.|
|Collison, L.||Massereene and Ferrard, V.||Stocks, Bs.|
|Durham, Bp.||Milner of Leeds, L.||Stonham, L.|
|Falkland, V.||Newton, L.||Strabolgi, L.|
|Gaitskell, Bs.||Phillips, Bs.||Vivian, L.|
|Gardiner, L. (L. Chancellor.)||Plummer, Bs.||Walston, L.|
|Barrington, V.||Byers, L.||Wade, L. [Teller.]|
|Beaumont of Whitley, L.||Foot, L. [Teller.]|
§ graph 3 of Schedule 1 to the Act of 1962 for the removal of a person from the United Kingdom the owners or agents of the ship or aircraft in which he arrived shall be liable to pay to the Secretary of State, on demand, any expenses incurred by the latter in respect of the custody, accommodation or maintenance of that person at any time after his arrival while he was detained or liable to be detained under paragraph 4(1) of that Schedule.
§ (2) The foregoing subsection shall not apply to expenses in respect of a person who, when he arrived in the United Kingdom, held a current entry certificate or was the person described in a current employment voucher.1143
§ (3) if a person is admitted into the United Kingdom before the directions for his removal have been carried out, or he is so admitted thereafter in consequence of the determination in his favour of an appeal under Part I of this Act (being an appeal against a refusal of admission by virtue of which the directions were given or against the directions themselves), no sum shall be demanded under subsection (1) of this section for expenses incurred in respect of that person and any such sum already demanded and paid shall be refunded.
§ (4) In subsection (1) of this section 'directions' does not include directions which by virtue of Schedule 2 to this Act have ceased to have effect or are for the time being of no effect; and the expenses to which that subsection applies include expenses in conveying the person in question to and from the place where he is detained or accommodated unless the journey is made for the purpose of attending an appeal by him under Part I of this Act.
§ The noble Lord said: This new clause provides express authority for the Home Office to charge the carrying company with the cost of detaining and maintaining, pending his removal, a passenger who arrives without an entry certificate or other document giving him a prima facie claim to admission, and who is refused admission to this country. The present law on the responsibility of a shipping company or airline with regard to one of their passengers (whether a Commonwealth citizen or an alien) to whom entry is refused is in an unsatisfactory state. The provisions have remained virtually unchanged since the days when all immigrants arrived by sea and those who were rejected could generally be left on board their ship until it sailed. There is power for an immigration officer to give directions to the shipping company or airline which brought the passenger here to remove him; there is also power for the immigration officer to put the passenger on board the ship or aircraft on which he is to be removed and to require the master or commander to ensure his safe custody.
§ But, since detention on board ship is sometimes—and detention on an aircraft is always—impracticable or inconvenient, the Immigration Service makes use where appropriate of the alternative power of detention on land (under paragraph 4(1) of Schedule 1 to the 1962 Act, or Article 1144 8(4) of the Aliens Order), on the understanding that the shipping company or airline will still either remain responsible for the passenger's custody or, if it is necessary to detain him in a police station, prison, remand centre or remand home, will meet the cost of his detention there. Detention quarters are, however, provided at public expense at London, Gatwick, Manchester, Glasgow and Prestwick Airports; but at these airports the airlines provide passengers in detention with meals and an escort, and if room is not available in the detention quarters the airline pays the full cost of accommodation elsewhere, often in hotels. Although there is no express provision in the existing law to make the carrying company liable for the cost of detaining a passenger on land, that has been the working arrangement with regard to aliens for the last fifty years and has been applied to Commonwealth citizens since the 1962 Act came into force. The cost to the carriers is now significant.
§ The airlines have for some time been concerned over the long periods of detention that have occurred in an increasing number of cases before final arrangements for departure are made, and they have been more concerned at the prospect that their liabilities in regard to both Commonwealth citizens and aliens may increase when the appeal system is in operation. On January 21, 1969, B.O.A.C. informed the Immigration Service at London Airport that they would not in future pay for the detention of a passenger on whose admission the Home Office had reached no final decision; they would pay only for the detention of a passenger whose position was no longer in doubt and who was to be removed as soon as practicable. The other airlines followed B.O.A.C.'s lead. As a result of the discussions which then took place between B.O.A.C. (representing the airlines generally) and the Home Office, the airlines agreed as a temporary compromise to continue to meet in all cases the full cost of detention at airports, though not of detention in prisons or remand homes.
§ The Home Office then put before B.O.A.C. and a number of organisations representing shipowners proposals for clarification and amendment of the law. It is on these proposals that the new clause is based. The carrying companies do not find these proposals acceptable, 1145 and their representatives were given an opportunity to put their objections to my honourable friend the Under Secretary of State, Mr. Rees, at a meeting on April 23. The Home Secretary has given due weight to the arguments put forward on behalf of the carrying companies, but nevertheless remains of the opinion that the Home Office proposals are fair and equitable and should be given the force of law.
§ The point of view of the carrying companies is that it is for the Government of a country alone to decide which passengers are to be admitted to its territory and which are to be excluded; that it would not be right or practicable for the carriers to purport to do this; that consequently they may, and should, bring to the United Kingdom anyone who holds a valid passport and wishes to come here; and that the United Kingdom Government ought to meet the whole cost involved in examining passengers and refusing entry to some of them. The Home Secretary, on the other hand, considers it right to maintain the general principle that the carrying company is responsible both for removing a passenger to whom entry is refused and for his custody and maintenance until removal is effected. This principle has been recognised in this country ever since the Aliens Act 1905 instituted a system of immigration control. It has undoubtedly given the carriers who bring immigrants on long-haul routes an incentive to avoid carrying passengers who are likely to be rejected. The fact that virtually all passengers from the West Indies who are subject to immigration control arrive with entry certificates is due in large measure to the attitude of the carrying companies; by safeguarding their own financial interest, these carriers are at the same time acting in the interests of their passengers, whose eligibility for admission is settled in advance, and they are also facilitating the operation of immigration control.
§ The proposals embodied in the new clause involve substantial concessions to the carrying companies and save them most of their present costs, in that they will incur no financial responsibility if the passenger either held an employment voucher or entry certificate, if a Commonwealth citizen (the corresponding documents in the case of an alien will be a labour permit or visa) or is eventually 1146 admitted to this country, whether as the result of an appeal or otherwise. They then pay nothing. It is also relevant that when the appeal system is in force passengers who appeal against refusal of entry will be eligible for release or; bail, and that while a passenger is out on bail his accommodation and maintenance will not be the responsibility of the carrying company. It is difficult to say at this stage whether under the appeal system the cost to the carrying companies of keeping passengers in detention will increase or diminish: that will depend on the speed with which appeals can be disposed of and the extent to which the appellate authorities make use of their power to release appellants on bail. But a tentative estimate of the effect of the concession now proposed is that when the appeal system is in operation the burden of detention costs for passengers to whom admission is initially refused will be shared between the carrying companies and the Home Office in a proportion of something like three to one.
§ In addition, the new clause relating to entry certificates, if approved, should alleviate the burden on the carrying companies by reducing the number of passengers to whom admission is refused on arrival, and by reducing to an even greater extent the number of passengers who have to be detained for long periods, since these are mostly Commonwealth citizens seeking admission as dependants. I consider the agreement we have come to is perfectly just and fair and will save the carrying companies a good deal of money—rightly, I think—for matters which should not be their responsibility, and it is an arrangement which should appeal to the Committee. I beg to move.
§ LORD BROOKE OF CUMNOR
I welcome this new clause, so far as it goes. I doubt whether it goes far enough, particularly in the light of what the noble Lord has just said. It seems to me to be on the fringe of quite a considerable subject which deserves rather more prolonged attention. I entirely agree with the noble Lord when he says that the present law is out of date. We have been carrying on much as we were, ever since 1905. That was a time when travel documents were rudimentary compared with what they are now. The whole system of entry certificates and employment vouchers is all newly devised since 1147 then. I am quite sure the Government have sought to remove certain injustices.
I was not surprised when the noble Lord said that this new clause was not agreed with the shipping companies. Even as it stands I can see certain injustices. The shipping company cannot tell whether an entry certificate is forged or not. If I am right in my interpretation of the Bill, the carriers will get relief under this clause only if the passenger concerned holds a genuine entry certificate, or if he is genuinely the person described in an employment voucher. It is a very good thing that the carrying companies and airlines should satisfy themselves that the people who are coming here and will require an entry certificate, or an employment voucher, have got one, but I do not see how they can possibly apply the elaborate tests which now sometimes have to be applied by immigration officers and their staffs in order to ascertain whether the certificate is genuine. It certainly seems hard on the carrying companies that, if I read this new clause aright, they will get relief under it only if the certificate is genuine, and not if it is forged.
In every case it seems to me, even where the entry certificate is a valid one, if for any other reason the passenger is not admitted into the United Kingdom the carrying company will still have to bear the cost of repatriating him. It seems to me a new look is needed at the Home Office. I was not present at the discussions, and I had no knowledge of the meetings held in January and April. It seems to me that a new look is needed now at the whole sphere of responsibility of the shipping companies and the airlines, and at the extent to which they should have to bear any costs, either of maintenance here or, on refusal of entry, of deportation, where the passenger concerned had what appeared to be a genuine travel document, or a sufficiency of genuine travel documents to ensure him entry if there was nothing else against him.
If that is not so, it seems to me that we are putting our law in this country behind the law in other countries. The noble Lord will correct me if I am wrong, but I believe I am right in saying that an airline or a shipping company which 1148 is taking passengers to the United States, or Canada, is relieved of all financial responsibility should entry be refused, if the airline had satisfied itself that the passenger had an apparently valid visa, or entry certificate, or other document which seemed in proper form to ensure him entry into the country concerned.
§ LORD STONHAM
May I interrupt the noble Lord on the question of the United States and Canada? Both countries have embodied in Statutes a rule that the carrying company is responsible both for removing a passenger to whom entry has been refused and for his custody and maintenance until removal is effected. That is their law.
§ LORD BROOKE OF CUMNOR
That is not quite answering my question, because I asked whether it was their law if the passenger concerned had a document which appeared to be a valid visa or valid entry certificate or other paper which, prima facie, entitled him to enter the United States or Canada. I think everybody would grant that a shipping company or an airline which just lands a person in a country with no documentation at all should naturally be required to take him away again at its expense because it had been negligent in so doing. But a shipping company or an airline that has seen what appeared to be valid documents, appearing to entitle the person concerned to enter the country, is surely unjustly treated if it then has to bear the cost of maintenance and subsequent removal should entry be refused.
I believe I am right in saying—again the noble Lord will correct me if I am wrong—that Australian law imposes no obligation at all on the shipping companies or the airlines in this matter. The truth seems to me to be that the United Kingdom is now lagging behind other countries. I certainly do not wish to challenge this Amendment, so far as it goes, but I would strongly suggest that between now and presentation of the permanent legislation which we all know is coming, to catch up the whole law relating to Commonwealth immigration and alien immigration, there should be a thoroughgoing investigation of the liabilities of the shipping companies and the airlines by an impartial body which will ensure that justice is done. I appreciate the difficulty of making further Amendments now. I am sure the noble 1149 Lord will appreciate my difficulty in having to deal with this subject at very short notice, because I had none of the detailed acquaintance that he had with the negotiations that have been going on.
§ LORD STONHAM
I am sure the noble Lord does not want to go into this matter in detail, but I will certainly look at the points he has raised. Of course, practice in other countries varies considerably. I have not the details of Australia. Certainly the position in Canada is very much what we propose in the United Kingdom. With regard to the noble Lord's point about the carrier having to pay for the return passage, even for a holder who had an entry certificate, this would not normally involve extra expense. It would mean the person's occupying on an aeroplane that was returning a seat which would otherwise be empty.
On the point about the forged entry certificate or the forged voucher, of course there is some injustice whoever bears the cost, whether we pay for it or the carrier does. But of course it is the carrier who brought the person with a forged document. It is a fact that the relief we have given to carriers by this clause—and I think it has been given to them fairly and rightly—is considerable. The incidence, therefore, of expense in these very marginal cases of forgery is likely to be very small indeed. But certainly I will look generally at what the noble Lord has said.
§ On Question, Amendment agreed to.
§ Clauses 20 and 21 agreed to.
§ Clause 22 [Short title, interpretation and commencement]:
§ 8.45 p.m.
§ LORD STONHAM
I beg to move Amendment No. 14. This Amendment supplies a definition of the term "employment voucher" which is used in the Government Amendment to Clause 9 and in subsection (2) of the new clause about liabilities of carrying companies.
§ Amendment moved—
Page 14, line 3, at end insert—
("'employment voucher' means a voucher of the kind described in section 2(3)(a) of the Act of 1962;").—(Lord Stonham.)
§ On Question, Amendment agreed to.1150
LORD STONHAM moved Amendment No. 15:
Page 14, line 17, at end insert ("'ship' includes every description of vessel used in navigation and a hovercraft as defined in section 4(1) of the Hovercraft Act 1968.")
§ The noble Lord said: I beg to move Amendment No. 15. With this Amendment I should like to consider Amendment No. 25. These are drafting Amendments consequential on the new clause about liabilities of carrying companies. Amendment No. 15 adds to Clause 22(2) a definition of "ship" which is the same as that used in the provisions of Schedule 1 to the Commonwealth Immigrants Act 1962 about the detention and removal of persons to whom admission is refused. The second Amendment deletes from paragraph 3(2) of Schedule 2 to the Bill words which are no longer needed in consequence of the first Amendment. I beg to move Amendment No. 15.
§ On Question, Amendment agreed to.
LORD STONHAM moved Amendment No. 16:
Page 14, line 30, after ("(5)") insert ("Sections (Power to refuse admission to wives and children under 16 if they do not hold entry certificates) and (Liability of owners or agents of ships and aircraft for expenses incurred in respect of persons directed to be removed from the United Kingdom) shall come into operation on the passing of this Act and the other provisions of").
§ The noble Lord said: Clause 22(5) in its present form empowers the Secretary of State to make orders fixing dates on which the various provisions of the Bill are to come into operation. The effect of the Amendment is that the new clauses mentioned in it will come into operation as soon as the Bill receives the Royal Assent, without any commencement order having to be made by the Secretary of State. The reason for bringing the new clause relating to entry certificates into force immediately is to reduce 1.0 the minimum any influx of immigrants seeking to avoid the new requirement. There will, however, as I have already made clear, be transitional arrangements to prevent hardship to passengers who had made firm arrangements to travel to the United Kingdom before the change in the law was known. The reason for bringing the new clause relating to the liabilities of carrying companies into force 1151 immediately is that the effect of the present law is uncertain. I beg to move.
LORD GIFFORD moved Amendment No. 17, as an Amendment to the Amendment:
Line 6, leave out ("on the passing of this Act") and insert ("at the end of the period of three months beginning with the day on which this Act is passed").
§ The noble Lord said: Amendment No. 17, which I beg to move, would delay the coming into operation of these two sections for a short period of three months. I move this Amendment for two reasons. The first reason, which has been dealt with to a large extent by my noble friend, in fact takes me back to the early hours in a morning of February last year when I moved a similar Amendment in order to ensure that during the transitional period there should be no hardship in another case where the immigration laws were being very peremptorily changed. My noble friend has said—and I accept absolutely what he has said—that transitional arrangements will be made in that those who have fixed travel arrangements made before the coming into operation of the Act will be allowed in.
§ The only other point I would make on transitional arrangements concerns people who may have no knowledge of the passing of this Act when they come to this country. No doubt many of them will be told by the carrying company what the new position is. But some may not be told, and I should hope that they also, if they genuinely do not know that they ought to have entry certificates and can prove their relationship, will be allowed in.
The second reason why I put this Amendment down was to prove whether in fact enough time is being given to get this new change in the law working and the new machinery into operation. I have to come back to the argument which has been going on about increasing the work eightfold. Taking the case of India, I note that in paragraph 72 of the Wilson Report it is said—and I am speaking now of the High Commission—
Arrangements for reception and interviewing were also reasonably adequate, although it appeared that they were subject to considerable strain in the summer and monsoon seasons when the number of applicants reaches its peak.
That sentence was written in relation to India and Pakistan, and in relation to the very small number of people in those countries applying for entry certificates. If the number of applicants is to increase dramatically, obviously provision must be made, and for there to be time to make that provision within the space of a few weeks seems to me to be unlikely. My noble friend has already assured us that there will be adequate machinery but I think this point must also be borne in mind most carefully by the Government.
§ Another point occurred to me as my noble friend was proposing this Amendment. Although the clause regarding entry certificates will come into operation immediately, of course technically under the law there will be no right of appeal against the refusal of entry certificates until the rest of the Bill is brought into operation. I gather that arrangements are being made to counter that but this again seems to be an argument for not bringing the Bill into operation so soon. I am seeking more for reassurance than to make an issue of this and I hope my noble friend will be able to give me that reassurance. I beg to move.
§ 8.54 p.m.
§ LORD STONHAM
I had assumed that my noble friend had tabled this Amendment for the reasons he has now made clear; namely, to gain information and to seek assurance, and I am grateful to him for telling me that at once. I will repeat the assurance I have already given, that the Home Secretary has very much in mind the hardship that would be caused if this new requirement was enforced against immigrants who had made arrangements to travel before the date of the Royal Assent, and suitable arrangements will be made to cover such cases. I do not want to say what those arrangements are, other than that they will be adequate, because such concessions are open to abuse and we do not want to defeat our object. As my noble friend will remember, when immigration control was extended to certain United Kingdom passport holders last year the control was not applied with full rigour in the early stages, and I believe it is accepted that the transitional arrangements we then made were generally considered to be reasonable in the circumstances.
The second point which my noble friend put forward was whether we have 1153 allowed sufficient time to put the new machinery into operation. The machinery with regard to appeals was really his third point, and as I indicated—but perhaps he was not here—we are making extra statutory arrangements with regard to appeals and I am sure that they will be satisfactory. They will apply only to Commonwealth immigrants and not to aliens. I do not think there will be any difficulty there.
The only question which arises concerns the volume of work. Again I must try to correct my noble friend's misapprehension that even in India the work is likely to increase eightfold. Nothing of the kind. I quoted the figures, and in round terms some 22,000 entry certificates were applied for in India, whereas the number of entitled dependants coming here from that country last year was between 18,000 and 19,000. So if the whole of those entitled dependants had been obliged to apply for entry certificates the work of the people concerned with the entry certificate procedure in India would be not quite doubled.
§ LORD GIFFORD
One gets confused with figures, but can my noble friend say how many Indian dependants who came in last year had entry certificates?
§ LORD STONHAM
Not in precise figures, but about one in eight, so if 18,600 came in last year it means that a little over 16,000 did not have entry certificates. If those who have come this year are of a like number and they are obliged to apply, that is 16,000 more against a total of 22,000 applied for. I am merely making the point that it does not double the work and it is nothing like eight times. But there is more work and this we are providing for as quickly as possible, and there is no reason to think that the new machinery will not be in operation.
If we accepted my noble friend's Amendment and allowed an interval of three months before it came into operation there would be hardship and misery and we should have people rushing into London Airport and things of that kind. I am sure that that is the last thing my noble friend wants. Therefore, in view of these answers to his questions I hope he will feel able to withdraw his Amendment to my Amendment.
§ LORD GIFFORD
I am grateful to my noble friend for his reply but, of course, even something close on double the amount of work is a great deal more work. With regard to his prediction that there might be a rush, I am sure that he will not want to encourage people, even by what he says now, to try to come in and beat the ban. It is not really a question of beating the ban, for people who come in and are unauthorised between now and the Royal Assent will be turned back if they are not qualified. I hope my noble friend can give the assurance, as in fact I think he has done, that the entry certificate application procedure will be so well managed that there is no need for anyone to be worried and to come in quickly in order to try to avoid it. I am sure that everything will be done—and I hope it is enough—to ensure that this new machinery can operate within such a short time. I do not intend to press my Amendment further, but beg leave to withdraw it.
§ On Question, Amendment to the Amendment, by leave, withdrawn.
§ On Question, Amendment agreed to.
§ Clause 22, as amended, agreed to.
§ Schedule 1 [The adjudicators and the Tribunal]:
§ LORD STONHAM moved Amendments Nos. 18 to 20:
§ Page 15, line 18, leave out ("Treasury") and insert ("Minister for the Civil Service")
§ Page 15, line 25, leave out ("Treasury") and insert ("said Minister")
§ Page 15, line 27, leave out ("the Treasury") and insert ("that Minister")
§ The noble Lord said: I beg to move, in Schedule 1, Amendments Nos. 18 to 20, and with these I should like to take Nos. 22, 23 and 24, which have the same purpose. The present distribution of functions between the Treasury and the Civil Service Department in relation to the pay and pensions of holders of judicial offices, including members of tribunals, is anomalous in that the Treasury retains its responsibility with regard to pay and conditions of service generally, whereas its functions with regard to pension arrangements have been transferred to the Civil Service Department. This anomaly will be corrected before long by the making of a Transfer of Functions 1155 Order, transferring to the Civil Service Department the Treasury's remaining functions in relation to holders of judicial offices; but it is now clear that this Order will not be made before the Bill receives the Royal Assent. Schedule 1 must therefore be made to reflect the existing distribution of functions between the two Departments, and that is the effect of these Amendments. I beg to move.
§ On Question, Amendments agreed to.
§ 9.2 p.m.
§ LORD GIFFORD moved Amendment No. 21:
Page 15, line 39, at end insert:
(" .For the purpose of hearing appeals under section 2(1)(c) of this Act, the Secretary of State shall in so far as is practicable direct that adjudicators sit in the country of origin of the appellants.")
§ The noble Lord said: This Amendment is perhaps even more of a probing Amendment than the last one, since I think I am right in saying it is not even necessary to achieve the purpose I seek to achieve. It seems to me that under the Schedule as at present drafted, the Secretary of State can direct adjudicators to sit in countries other than the United Kingdom. Other noble Lords who have spoken earlier this afternoon, and indeed my noble friend, adverted to this question of where the adjudicators should sit. I do not want to repeat what they said, except to ask, and to urge very strongly, that consideration be given to the question of allowing the adjudicators to sit in the country of origin.
§ By sitting there they would be able to make themselves aware of local conditions. Clearly, local conditions are very important, and it is important that they should be understood. The adjudicators will, above all, be able to see the person whose appeal it is, to question him, to assess his reliability as a witness. They will be able also to see and question the officer against whose decision the appeal is being made, and this also would no doubt be of very great importance. In so many of these cases at the moment one finds that mistakes have been made at the ports of entry, without any malice by the immigration officer-mistakes which can be easily straightened out on appeal. This is what this Bill 1156 is about. No doubt the same kind of mistakes will from time to time be made by officers of the High Commission, and it seems to me that to have an adjudicator, wherever possible, able to interview and hear evidence from the principal parties involved, so that he can speedily put right any mistake which has been made, will be very helpful in ensuring that this new machinery works fairly and justly. Many speakers have already referred to the difficulties which are going to arise with paper appeals to London, and I do not propose to follow that argument any further.
§ My noble friend has already indicated that, although this was not their intention, the Government will give it serious thought. I hope also that the possibility of making experiments in having adjudicators both here and in the country of origin will be seriously considered. It is of paramount importance that this appeal machinery works properly. Under the Bill as conceived the appeal machinery was admirable and was as close to fairness and justice as one could have imagined. Under the now amended Bill all sorts of problems will arise, and I hope that my noble friend will repeat the assurance that this question of adjudicators sitting in foreign countries will be given very serious consideration, and even experimented with. I beg to move.
§ LORD STONHAM
Let me at once assure my noble friend that the terms of Schedule 1 as it stands are wide enough to permit adjudicators to be sent overseas to hear appeals if, in the light of experience, the Government decide that this is necessary. But it is not at present intended, when Part I of the Bill comes into force, to direct adjudicators to sit overseas. The Wilson Committee gave careful consideration to this point, and came to the conclusion that in entry certificate cases the appeal would:have to be to an adjudicator in this country. This means"—the Committee said—that it will not be practicable, as it will be in exclusion appeals, for the oral evidence of the appellant to be given before the adjudicator. We do not think that this is likely to prejudice the appellant's chances of success.1157 We have recent experience in Africa, where we have adopted both methods. Two lawyers went out to Kenya, and then, for very good reasons, since last summer the appeals have been only here, I think to the general satisfaction. In fact in Nairobi the number of appeals heard was 23, and the number dealt with in the United Kingdom from August, 1968, to Easter of this year is 46. So the totals are similar. It has been done quite satisfactorily. There have been none of the troubles or minor disasters that have been forecast. We feel that before we are committed further on this we ought to have a little more experience of this arrangement, which has worked satisfactorily in this country for the last six months, and we ought to give it a fair trial before any alternative is tried, particularly having regard to the fact that we did start this overseas. I assure my noble friend that we will, and we must, keep this under very close review. We mean to do all we can to ensure its success, despite the difficulties, and therefore consideration in overseas countries is not precluded. We shall not need to legislate again for it, but it will not be done at present. Certainly we intend to start with appeals and adjudications in this country. I am most grateful to my noble friend for the other things he has said.
§ LORD GIFFORD
In accepting that assurance I would point out that I do not believe that the Kenya experience is really useful in considering this new problem. I believe I am right in thinking that with Kenya Asians the main problem is not to establish whether or not a family relationship exists in most difficult circumstances, but to establish questions of priority as to whether persons who previously had a right to come into the country are being unjustly excluded by a ceiling which is being placed on the number of work vouchers. I may be wrong in that, but I should not have thought that the same agonising question of whether or not there is a family relationship applies in the more stable society of the Kenya Asians. However, no doubt we shall have some opportunity at a quite early stage, of seeing how the Government's present intentions work, and shall then be able to make representation to change them. I am 1158 obliged for the assurances, and beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Amendments moved—
§ Page 16, line 15, leave out ("Treasury") and insert ("Minister for the Civil Service")
§ Page 16, line 22, leave out ("Treasury") and insert ("said Minister")
§ Page 16, line 24, leave out ("the Treasury") and insert ("that Minister")—(Lord Stonham.)
§ On Question, Amendments agreed to.
§ Schedule 1, as amended, agreed to.
§ Schedule 2 [Suspension of Directions for Removal Pending Appeal]:
Page 17, line 40, leave out ("and 'ship' have the same meanings respectively 'o) and insert ("has the same meaning").—(Lord Stonham)
§ On Question, Amendment agreed to.
§ Schedule 2, as amended, agreed to.
§ Remaining Schedule agreed to.
LORD STONHAM moved Amendment No. 27:
In the Title, line 13, after ("Kingdom") insert ("to make provision as respects the holding of entry certificates by certain persons to whom the said section 1 applies who seek admission into the United Kingdom; to make the owners or agents of ships and aircraft liable for certain expenses incurred in respect of persons to whom the said section 1 applies who are directed to be removed from the United Kingdom")
§ The noble Lord said: This Amendment inserts in the Long Title of the Bill references to the provisions about entry certificates and the liabilities of carrying companies which are contained in earlier Government Amendments. These provisions are not covered by the Long Title in its present form. I beg to move.
§ On Question, Amendment agreed to.
§ Title, as amended, agreed to.
§ House resumed: Bill reported, with the Amendments.