§ 4.24 p.m.
THE MINISTER OF STATE, HOME OFFICE (LORD STONFIAM)
My Lords, I beg to move that the Report be now received.
§ Moved, That the Report be now received.—(Lord Stonham.)
§ Clause 8 [Determination of Appeals]:
LORD BROOKE OF CUMNOR moved Amendment No. 1:
Page 6, line 10, leave out ("the Secretary of State or an") and insert ("an immigration").
§ The noble Lord said: My Lords, I think it would probably be to the convenience of your Lordships if we could 39 discuss Amendment No. 2 together with this Amendment because they are closely linked. Your Lordships may recollect that in Committee there was considerable discussion over an Amendment which I moved to subsection (1)(a)(ii) of Clause 8, the same sub-paragraph which is affected by this Amendment. Both my noble and learned friend Lord Dilhorne and I spoke strongly about the vagueness of this sub-paragraph. If I may remind your Lordships, we are dealing here with an appeal relating to a decision which was not reached on account of an immigration rule but which was within the discretion of the Secretary of State or one of his officers to decide either way. There is no difficulty arising in connection with sub-paragraph (i) because there the appellate authority is asked to consider whether the decision or action was or was not in accordance with the law or with any immigration rules applicable to the case. That is a perfectly clear justiciable issue, but no similar issue arises under subparagraph (ii).
§ I pointed out in Committee that where someone wishes to appeal to the Court of Appeal against a decision by a judge which it was within the discretion of that judge to take, the matter is strictly governed by the Rules of the Supreme Court, and those Rules are properly enforced. Here the Government are suggesting nothing of the kind. They are suggesting that where the original decision involves an element of discretion there shall be an open appeal to the adjudicator or to the Tribunal, and the adjudicator or the Tribunal can reverse the decision of the Secretary of State or his officer simply because in his opinion that discretion should have been exercised differently. As my noble and learned friend and I asserted in Committee, it is wholly wrong that the responsible decision of a Secretary of State, using his discretion and answerable to Parliament for that decision, should be able to be brushed aside by an appeal authority simply on the ground that such appeal authority thinks he should have decided differently.
§ Since the Committe stage of the Bill. I have done what all your Lordships were urged to do earlier this afternoon in connection with a different Bill, which was to read and think over all that was said in Committee. It emerged in 40 Committee on this Bill, from the speech of the noble Lord, Lord Stonham, that there were really two broad classes of case where this discretion was exercisable. One, and probably the larger class of case, is where an immigration officer decides, let us say, that the compassionate arguments are not quite strong enough to entitle him to grant admission to a would-be immigrant. There is no question of State policy here; it is a matter of judgment, and if the appellate authority subsequently decides that the immigration officer should have exercised his discretion differently, no great harm is done. Indeed, probably good is done because the matter has been considered by a higher authority. Certainly there is no harm done to the safety of the State or to the future of law and order.
But the noble Lord, Lord Stonham, also frankly admitted that there was another broad category of cases (though a smaller category) where an applicant for admission to the country is liable to be debarred because—and I use the noble Lord's own words—
his character, conduct or associations make it undesirable to permit him to enter the United Kingdom."—[OFFICIAL REPORT, 6/5/1969, col. 1034.]
There is no question that this is a matter of policy. The Secretary of State is responsible to Parliament for law and order, and he must be vitally concerned when people of undesirable character. conduct or associations whom he thinks it is undesirable to permit to enter the United Kingdom are subsequently allowed in by a decision of the Tribunal.
§ In Committee the noble Lord, Lord Stonham, gave us no indication how this was to he prevented. He stated, certainly, that the Secretary of State could make more and more immigration rules so as to cover increasingly a larger and larger part of the whole field of possibilities, but it would always remain true that cases arose which were not covered by any of those rules.
§ If any of your Lordships think that I am imagining improbable possibilities, let me recall to you what actually happened in the 1930s. The facts are all set out in Appendix III of the Report of the Wilson Committee on Immigration Appeals, the Committee on whose Report this Bill is broadly founded. In 1932, the Home 41 Secretary of the day appointed a non-statutory committee to advise him upon the cases of aliens in respect of whom a deportation order was being considered. Let me point out that this was a non-statutory body, and it was an advisory body. Therefore, it could be abolished at any time, or its findings could be overridden by the Secretary of State. What we are doing now in this Bill is to set up a statutory body, in the last resort an Appeals Tribunal, and, except in a certain small class of security cases, it will not be possible for the Home Secretary to override the Tribunal's decision.
What happened with regard to this previous committee in the 1930s, which as I have said had nothing like the power that the appellate authority is going to have under this Bill, was this. I read from paragraph 5 of Appendix III of the Report:
It became evident from the trend of the committee's decisions that its member did not feel bound to accept the Home Secretary's general policy. Consequently, even in a case where the alien did not dispute the allegations against him and brought forward no mitigating circumstances, the committee might recommend against deportation because its members differed from the Home Office in principle on what constituted sufficient grounds for deportation.
§ My Lords, what guarantee is there that the appellate authority under this Bill will not act in the same way?—indeed, the Bill invites it to do so. The Government have inserted in the Bill, in Clause 8(1)(a), sub-paragraph (ii) instructing the appellate authority to allow the appeal if he considers that the discretion exercised by the Secretary of State or an officer "should have been exercised differently". In other words, the appellate authority, ultimately the Tribunal, will be completely free to do what the advisory Committee did between 1932 and 1936, the only difference being that that was an advisory committee, whereas this will be a statutory body whose decisions can override those of the Home Secretary. This is why my noble and learned friend Lord Dilhorne and I have framed this Amendment, which is designed to provide for the two categories of case to which the noble Lord, Lord Stonham, referred in Committee.
We are suggesting by this Amendment that where the decision has been taken at immigration officer level and has not
had to go up to headquarters the words in the Bill could be accepted. This will deal with the compassionate argument, where the immigration officer may have just come down against the applicant and the appellate authority might just come down the other way, and no harm will be done to the State if the immigration officer's decision is overruled. But we are suggesting in Amendment No. 2 that where the decision or action was based upon the exercise of a discretion by the Secretary of State, or an officer other than an immigration officer, then before allowing the appeal the appellate authority must be satisfied
that there was a misapprehension as to the facts or that irrelevant matters were taken into account or that relevant matters were not taken into account.
§ If this Amendment is made, it will safeguard the Government against having decisions brushed aside, as I have said, by the appellate authority, simply because the appellate authority takes a different view. We saw in the 1930s that the advisory committee believed that a much more powerful case must exist against a person before he is deported than the Secretary of State did at that time. I believe that the break came because the Secretary of State wished to deport an alien who had been found bribing an immigration officer in order to get some of his relations into this country: the advisory committee thought that was not at all a serious offence, and, anyhow, as the man had done it once and had been discovered he probably would not do it again, and therefore he could stay. That illustrates how wide the difference of view can be.
§ What my noble and learned friend and I are concerned about, above all, is to defend the position of the Secretary of State, answerable to Parliament, in cases where law and order may be involved. The noble Lord, Lord Stonham, mentioned in the debate in Committee the old case of Lennie Bruce. That would be a clear example, because in that case the Home Secretary took the decision that his continuance in this country was not conducive to the public good; and if there had been a so-called liberal-minded statutory Appeals Tribunal in those days that decision might have been reversed and Lennie Bruce might have been able to remain here and become a centre and haven for other drug addicts. 43 I mention that case to show that there are serious issues involved, and I greatly hope that the noble Lord, Lord Stonham, will address himself equally seriously to this problem. I beg to move.
§ 4.37 p.m.
§ LORD STONHAM
My Lords, I do indeed agree with the noble Lord, Lord Brooke, that there are very serious and important issues involved here. I do not wish, in dealing with this Amendment, which I can assure him I do treat very seriously, to go over the very broad issues, still less to go back to 1932 when the advisory committee to which he referred was set up, but which I would remind him referred only to aliens, to advise the Home Secretary of the day on the position of aliens. I want to deal solely with the noble Lord's Amendments and tell your Lordships what in my view is the effect of them.
The effect of the noble Lord's Amendments taken together is first to leave the appellate authorities power to substitute their own discretion for that of an immigration officer unchanged—that is exactly what the noble Lord said. But the Amendments would preclude the appellate authorities overruling a discretionary decision of the Secretary of State or of an entry certificate officer, unless they find that there has been a misapprehension about the facts or that irrelevant matters have been taken into account or relevant matters have not been taken into account.
I propose to show that the noble Lord's Amendments would not affect some of the situations that he described in the way that he imagines they would. Last week, during the Committee stage, I explained that in relation to the admission of Commonwealth citizens—and I emphasise that it is Commonwealth citizens alone to whom the Bill applies—there is generally scope for the exercise of discretion only in a case where the immigration rules require the immigration officer to decide whether there are compassionate circumstances that justify admission, and I then gave a number of examples of the cases where compassionate circumstances could be taken into consideration.
My view was supported by the noble Lord, Lord Foot, in these words. He said that it was important: 44from 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".—[OFFICIAL REPORT, 6/5/69, col. 1047.]The Government are strongly of that view, and that is exactly what we have provided for in subsection (1)(a)(ii) as it now stands. Lord Brooke's Amendments make no change with regard to Commonwealth cases which have to be decided at the ports, because as drafted they do not apply to decisions taken by an immigration officer, but they do apply to decisions taken by an entry certificate officer.
I believe that the noble Lord is under a misapprehension in trying to make a distinction between immigration officers and entry certificate officers, since their standing and functions are in essence identical. Indeed, it is not at all clear that such a distinction could be drawn, because, under both the Aliens Order and the Commonwealth Immigrants Act, the person who actually takes the decision is the immigration officer, and this would be so notwithstanding that he was giving effect to a personal instruction from the Home Secretary. What Lord Brooke's Amendments would do is to limit the power of appellate authorities to substitute their view in discretionary Commonwealth cases arising in relation to people already living here—that is, if they are not here for permanent settlement; the discretion in respect of people who are here temporarily would arise, for example, over refusals of extension of stay or other variation of conditions of stay, or deportation for breach of conditions where there is no recommendation by a court. That is in the Bill with which we are now dealing, which deals only with Commonwealth citizens.
§ LORD BROOKE OF CUMNOR
My Lords, I wonder whether the noble Lord would explain that. Clause 14 says that:Her Majesty may by Order in Council … make such provision for appeal in connection with the powers for the time being exercisable in respect of the admission into and removal from the United Kingdom of aliens as appears to Her Majesty to be appropriate having regard to the provision made by this Part of this Act for appeals in connection with the powers conferred by the Act of 1962.Does that not mean that the provisions of the Order in Council will, mutatis 45 mutandis, follow what is laid down in Clause 8 for Commonwealth citizens?
§ LORD STONHAM
My Lords, I was coming to that, and I should like to deal with that point carefully and in some detail. But the point that I am making at the moment is that the noble Lord's Amendment would deal with cases of persons already living here, provided, of course, that they were not here for permanent settlement, and I would emphasise again, subject to what he has just said, that the enactment itself in what it does enacts in respect to Commonwealth citizens. But, as he has just said, we have in draft an Order in Council which would provide appeal rights for aliens corresponding to those provided in the Bill for Commonwealth citizens—corresponding, but not the same; because assuming that we made these same Amendments to the draft Aliens (Appeals) Order that the noble Lord wishes to make to this Bill, we should still only be giving the appellate authorities powers to substitute their discretion for that of the Home Secretary in cases of refusal of admission, refusal of extension of stay or deportation. I hope that I have carried the noble Lord with me so far in relation to the effect of these Amendments and the limitation of their effect.
The big difference between Commonwealth citizens and aliens is that in the case of aliens the Home Secretary has power to exercise discretion on grounds that the alien's presence was not conducive to the public good. The noble Lord will recall that he submitted an Amendment in Committee to provide the same kind of power for the Home Secretary in respect of a Commonwealth citizen. The difference is that the discretion in respect of aliens would cover the whole field of admission because, unlike Commonwealth citizens, they have no statutory right of admission.
I should like to take this opportunity to clarify what I said at the Committee stage about whether there is power to refuse admission to Commonwealth citizens on political grounds. Both the noble Lord, Lord Brooke, and the noble and learned Viscount, Lord Dilhorne, suggested that there was a contradiction, or at least an inconsistency, between what I had said about the hypothetical case of "a Canadian Rockwell" and my 46 later remarks. I have looked at this again, and I find that my later remarks correctly stated the position in these words [OFFICIAL REPORT, 6/5/69, cols. 1052–1053]:… this question"—that is the question of leaving political decisions to Ministers—does not really arise with Commonwealth citizens, as distinct from aliens … because with Commonwealth citizens there is no power to refuse them entry on political grounds.As I explained immediately afterwards, following an intervention by the noble Lord, Lord Brooke, this lack of power to prevent entry applies only to those Commonwealth citizens who have statutory rights of entry; but since these include students and visitors coming for limited periods with sufficient means of support, they of course cover the vast majority of Commonwealth citizens who come to this country. This Bill does not affect that position in any way, and in particular it continues the present position where there is no power to refuse entry on political grounds.
Lord Brooke's Amendment does not affect that position either, because where there is no power to refuse entry then no question of appeal against that refusal can arise. Again I hope that the noble Lord is in agreement with me over that. Again this afternoon the noble Lord referred to the case of a "Canadian Rockwell" and asked me if the adjudicator or Tribunal could overrule the Home Secretary. The answer is "No," because the case would not go to the Tribunal because we have no power to refuse entry on political grounds.
§ LORD BROOKE OF CUMNOR
My Lords, I am sorry to interrupt again, but in fact I never made any mention this afternoon of a "Canadian Rockwell". I did not quote that case; it was not even relevant.
§ LORD STONHAM
My Lords, I am sorry if I was relying on a memory further back than this afternoon. But it seems to me that the noble Lord has primarily in mind the cases of aliens, and indeed his speech this afternoon in the main referred to aliens: that is, cases in which the Home Secretary decides that the exclusion or deportation of not a Commonwealth citizen but a particular 47 alien is desirable in the public interest. The noble Lord wishes to ensure that such a decision, for which the Home Secretary is answerable to Parliament, should not be overruled by an adjudicator or the Tribunal, who are not so answerable, simply because the appellate authorities take a different view of the merits of the case.
The noble and learned Viscount, Lord Dilhorne, in Committee expressed considerable concern at the possibility of inconsistency in decisions in such cases when they were given by adjudicators. We have given further thought to this subsection in the light of the debate on Lord Brooke's Amendment in Committee, and our conclusion is that any restriction of the appellate authorities' powers in discretionary cases would result either in greater uncertainty about the outcome of an appeal, or in denying the Commonwealth citizen or alien concerned a fully effective right of appeal. In the Amendment that we considered at the Committee stage, reasonableness was made the criterion for the exercise of the appellate authorities' power to overrule discretionary decisions, and this was open to the first objection, that of creating greater uncertainty about the outcome. The Amendments we are now considering are open to the second objection, that of denying an effective right of appeal, because they would not always allow an appeal on the merits. The noble Lord, Lord Brooke of Cumnor, wants to make it impossible to appeal on the merits in a case where there had been no error of fact or not taking into account of irrelevant matters, and the decision had been taken by someone other than an immigration officer. That is what the Amendment does, but I should have thought this is surely not what the noble Lord, Lord Brooke, wants. It is a result which certainly seems to the Government to be undesirable.
The Amendments appear to be based on the Rules by which the Court of Appeal is guided in dealing with appeals against the exercise of a judge's discretion. In the Government's view that is not an appropriate model for us to follow here. Clause 8 does not deal with appeals from one court to another, or from one judge to another. It deals with appeals to an independent tribunal 48 against a decision of an officer of the Executive. It is of the essence of the Bill that, security and political cases apart, every such decision in the field of immigration control should be open to review on its merits. We hear a great deal of talk these days about the powers of the Executive. Well, here we are providing a means for the individual to appeal against them.
If we accepted the noble Lord's Amendments we should be making the outcome of an appeal against a discretionary decision more uncertain, and often quite unrelated to the merits: an appellant, instead of addressing himself to the merits of the decision under appeal—because merits would not count—would have to try to find something in the Home Office's assessment of the facts to which he could take exception. He might try to prove that there had been a misapprehension as to certain facts, even though the rest of the facts had been correctly apprehended and were sufficient to justify the decision. He might prove that some irrelevant facts had been taken into account, even though they had weighed in his favour. He might prove that some relevant facts had been overlooked, even though they would have strengthened the case against him. If the appellant was able to prove any of these things, the appellate authority would be bound to allow the appeal, irrespective of the merits. That is what this Amendment does, and I am sure that the noble Lord—and certainly your Lordships—neither want nor intend the Amendment to do this. But that is what it would do. No doubt the noble Lord would say that in these circumstances the appellate authority should be able to consider the case on the merits, but the effect of the Amendment is to rule this out and to require the authority to allow the appeal.
For all these, I believe, unanswerable reasons the Government consider that the best course is to leave Clause 8(1)(a)(ii) in its present form. There will of course be an opportunity for Parliament to reconsider this and other aspects of the appeal system in the light of experience when, in due course, we introduce permanent legislation on immigration control, and we can then—if in the light of experience we find it necessary—make new provision on matters on which experience has 49 shown that a change in the law is desirable.
I would point out, my Lords, that with regard to aliens, who provide more occasion for the exercise of discretion by the Home Secretary than Commonwealth citizens, the scope of the appellate authorities' power to review discretionary decisions will not depend on the terms of Clause 8 of this Bill but on the corresponding provisions of Article 6 of the Aliens (Appeals) Order. This Article is at present drafted in the same terms as Clause 8, but it could be altered after the Bill is passed and before the Order is made, or amended by a subsequent Order; the original Order and any subsequent amending Order will be subject to the Negative Resolution procedure. But even at this stage I can advance two important points about the draft Order in respect to aliens as it stands, which should go most of the way to meet the misgivings of the noble Lord, Lord Brooke, and the noble Viscount, Lord Dilhorne, at the Committee stage and again to-day.
The first point arises under Article 5(2) of the draft appeal Order, which says:Rules of procedure may provide that, in such cases as may be specified in the rules, an appeal shall lie under this Article only with the leave of the adjudicator or the Tribunal, or only with the leave of the Tribunal; but an appeal shall lie under this Article without leave—(a) where the adjudicator has allowed an appeal under Article 1(1)(a) of this Order and the Secretary of State certifies that he considers it desirable in the public interest that the case should be decided by the Tribunal;So a case of the admission of an alien must go to the Tribunal, and cannot be finally decided by the adjudicator, if the Secretary of State certifies that he considers this desirable in the public interest. Then paragraph 5(1) of Schedule 3 to this Bill reads:Notwithstanding the foregoing provisions of this Schedule, an appellant shall not be released under this Schedule without the consent of the Secretary of State …(b) if the Secretary of State has given a certificate under section 7(2)(a) of this Act in relation to the case of the appellant.As applied to aliens by Article 9 of the Aliens (Appeals) Order such an alien could not, without the Secretary of State's consent, be released on bail pending the hearing by the Tribunal.
50 The second important safeguard arises under Article 3(1), which reads:Subject to paragraph (2) of this Article and to the other provisions of this Part of this Order, a person may appeal …(b) to the Tribunal, against a decision of the Secretary of State to make a deportation order in his case by virtue of paragraph (b) of the said Article 20(2).Thus appeals against decisions to deport an alien because his presence is not conducive to the public good are heard by the Tribunal, not by an adjudicator. These two points already provide substantial safeguards, and since they will be decided only by the Tribunal they should prevent inconsistency in the type of cases that the noble Lord, Lord Brooke, and the noble Viscount Lord Dilhorne, have in mind.
There will be an opportunity to reopen the question—and other related questions—concerning the comparative treatment of Commonwealth citizens and aliens when, in due course, we bring forward permanent legislation on immigration control. Meanwhile, for what I hope are reasons which will appeal to him, I invite the noble Lord, Lord Brooke of Cumnor, to withdraw his Amendment.
The first of those reasons is that in certain cases it would deprive aliens and Commonwealth citizens of an effective right of appeal. The second reason is that the Amendment would be difficult for the appellate authorities to apply sensibly in practice, since it would deny consideration on merit, and would compel them in some cases to allow appeals which had no merit. The third reason is that there are already safeguards for the types of case he has in mind and, so far as aliens are concerned, we can look at the matter again before the Aliens (Appeals) Order is laid before Parliament.
§ 5.0 p.m.
§ VISCOUNT DILHORNE
My Lords, I have listened very carefully to all that the noble Lord, Lord Stonham, has said in answer to the speech of my noble friend Lord Brooke of Cumnor, and I am sure that anyone having heard both of those speeches will realise that this is certainly an intricate matter. It is a matter which does not, so far as I can see, involve in any degree Party politics. It is just a question of machinery and 51 getting the machinery right. I must say to the noble Lord that I am not satisfied at all, despite the arguments he advanced which he said were unanswerable, that in fact he has got the machinery right. May I take it stage by stage?
First of all, let me assume that there is a decision by the immigration officer. It is quite clear that the Amendment in my noble friend's name and in my name does not alter the position as in the Bill in relation to where that decision is one in which discretion was involved. The noble Lord talked a great deal about merits, but merits and discretion are not always the same thing. Here the wording of the Bill is, "where discretion is involved", and there will he a right of appeal to the adjudicator or to the Tribunal in cases not based on the exercise of discretion by the immigration officer, but in cases in which discretion is involved. That may be a pretty wide field. I would ask the noble Lord to bear in mind that there may be cases in which discretion is involved, but where that exercise of discretion was not the real ground for the determination and—
§ VISCOUNT DILHORNE
My Lords, I did not interrupt the noble Lord, and perhaps I may complete my argument. I am only going to ask him to give further consideration to that wording before a later stage, and for this reason. He will notice that in our second Amendment we have referred to the decision being based on the exercise of a discretion, which is a slightly different phraseology, and deliberately so, to raise this point. I am not going to press the noble Lord on that to-day, because it is a matter on which I think he should, with great respect, take advice and give consideration. I did not raise the matter at length on the Committee stage, because it was not appropriate—
§ LORD DERWENT
My Lords, I am very sorry to interrupt my noble and learned friend, but I understood that all the remaining stages were being taken to-day.
§ VISCOUNT DILHORNE
My Lords, if that be so, then it is my last oppor 52 tunity to deal with it. I am afraid that I was not aware of that fact.
§ LORD STONHAM
My Lords, may I interrupt the noble and learned Viscount now? I believe I agree with what he has said so far, and I was in agreement with his noble friend with regard to the fact that the discretionary cases will stay with immigration officers in respect of the first Amendment which is being moved. The whole of my discussion, and I think the only disagreement between us, is in relation to the second Amendment; and it is the second Amendment which I said did not permit a case to be considered on merits, but only on the three grounds mentioned in the Amendment.
§ VISCOUNT DILHORNE
My Lords, may I pursue my speech on this point? I fully recognise that the noble Lord appreciated the fact that in our Amendment we were not changing the procedure with regard to appeals from immigration officers, but I begin with that because I want to lead on from that. That so far is common ground, apart from the point I have now made which I should have made before—I did not realise that all stages were being taken to-day—about the use of the word "involved", which makes it a much wider right of appeal on discretion cases than, say, where the decision is based on the exercise of discretion. Perhaps the noble Lord and the Home Office had failed to observe the difference in language between the two, but I have explained now what that is based upon.
I now come to the next stage which bears upon something that the noble Lord said; that is, the power to restrict the right of appeal by rules, saying that in certain cases or in certain circumstances leave must be obtained before the appeal is brought. I want to make it clear to the noble Lord that I am still speaking about appeals from immigration officers. What it does not seem to me that the noble Lord has faced up to is this. Where the original decision is based on the exercise of discretion, and where the appellate body, he it adjudicator or Tribunal, has a completely unfettered discretion, how is it going to be possible to draft rules requiring in some discretionary cases leave to appeal, and in other discretionary cases not requiring it? I do not believe that can be done in 53 a way which is either equitable or fair. If you have this unfettered right of appeal in a discretionary case, I do not think that you can impose restrictions by way of the granting of leave, when you know that the Tribunal or adjudicator may exercise discretion quite differently.
That brings me to what seems to me a serious point: that there is nothing to prevent or discourage every unsuccessful person before the immigration officer from appealing in every single case. I do not myself feel that it is a very satisfactory appeal system, when in every single case where there is the exercise of discretion it is likely to go to the superior body. You might also say that if that is to be the machinery, it might go to that body straight away.
I now come to the other type of case which is not dealt with by the immigration officers, but which is dealt with by those at headquarters, which I think is the expression used by my noble friend—that is, the Secretary of State and those working in his Department immediately under him. Quite where in this pattern comes the entry certificate officer, I do not know. But the idea behind this Amendment, which I commend to the House as having merit, is that where there are officers at the headquarters directly under the control of the Secretary of State, then there should not be this unfettered right of appeal in discretionary cases.
The reasons for that are many. The noble Lord said that this means taking away an effective appeal on the merits. I do not really know how he distinguishes merits and discretion. If he says that it is taking away effective appeal to the adjudicator or the Tribunal in a case in which the decision of the Secretary of State is based on the exercise of discretion, then I will agree with him and for this reason. If the Secretary of State or those immediately under him at headquarters are exercising their discretion in a case, then it seems to me, first of all—and this is one argument—that the Secretary of State's responsibility to Parliament should remain. of you have this Tribunal or adjudicator to which a decision of the Secretary of State can go, then once it has gone to that body the Secretary of State is relieved of all responsibility for the ultimate decision in a particular case. 54 I cannot think that that is right. I feel very strongly myself that if the matter has come within the Secretary of State's purview, or within the purview of the Home Office, then he should take the responsibility of his own decision, or the decision of the civil servants immediately under him, and that responsibility should remain and he should be answerable. If the final decision in a particular discretion case rests with some outside body, he will not be answerable and he cannot be called to account either in this House or in another place. That is one reason why this Amendment seems to me desirable in principle.
Secondly, I would point out that it is true that that part of the Amendment which the noble Lord was attacking says that where there has been a decision based on the exercise of a discretion by the Secretary of State (or, if you like, headquarters), that decision cannot be interfered with by an appellate body unless it is shown that what the Secretary of State did was wrong, either, as the Amendment says, by taking into account matters which he should not have taken into account or by not taking into account matters which he should have taken into account, or by a misapprehension of the facts. Where they find there has been error of that kind, then under this Amendment the appellate tribunal could allow the appeal.
But the gravamen of the noble Lord's criticism of this Amendment, as I understood it, was that where there was established to be a misapprehension of the facts, a failure to take into account relevant facts or the taking into account of irrelevant facts, the Tribunal, whatever the effect of that failure might be, would be bound to allow the appeal. My Lords, it must have required a great deal of study of this Amendment to be able to detect that possible defect in it. I should like to congratulate the noble Lord and the Home Office: but we get so used to attacks on other people's drafts that I am not in the least surprised. But it is, I should have thought, quite obvious that that would be the consequence only if it was clear that the effect of the failure to take into account those matters, and the rest of it, had led the Secretary of State to come to the wrong conclusion; and if there was any doubt about it the noble Lord could easily 55 agree, I am sure, to the addition of words to make that absolutely clear. It would not take many words to do it: one could almost draft them on one's feet. So I brush that point on one side, and I come back to what I think is the real point of principle. It is purely machinery, but we ought to get it right.
As the Bill stands, as I see it, in every single case where there is a discretion involved, whether it was originally decided by the Secretary of State, by the Home Office or by any immigration officer, the matter can go to appeal. There is nothing to stop that happening. Every appellate body, adjudicator or Tribunal has a free and unfettered discretion; and the noble Lord really has not answered the point made in Committee, that where there are cases indistinguishable on their facts, indistinguishable in relation to their compassionate circumstances, coming before different adjudicators, each exercising individual discretion, there is a wide disparity of decision, a complete lack of uniformity. I must say that I do not myself think that a machine—and this is purely a question of machinery—which permits of that can be regarded as an effective machine.
My Lords, I am a little encouraged by what the noble Lord said about there being a possibility of reviewing this matter if indeed it be the case that we have got to take the remaining stages of the Bill to-day. I had not noticed that; I am sorry. Perhaps it was because of the difficulty of getting Papers. But I think that this is an important question. I am not satisfied by the noble Lord's answer. I do not think he is right in saying that a system such as we propose would prevent proper adjudication on the merits. I do not think it would. It would certainly preserve the responsibility of a Minister to Parliament, which the provision of an appellate body over and above the Secretary of State takes away. I do not think it would lead to any injustice to the people seeking to appeal or seeking entry; and I can only say that I am very disappointed that, after what we said in Committee, the noble Lord has not felt able to be more forthcoming about this Amendment.
§ 5.15 p.m.
§ LORD WALSTON
My Lords, the noble and learned Viscount repeated more than once that this was not a matter of principle but was purely a question of machinery. With the greatest respect, I disagree with that. It seems to me that this is a question of principle. To my mind, the principle that we are discussing, in the first place, is whether Commonwealth citizens should have the right of entry into this country provided that they conform to the various criteria which have been laid down from time to time, and should have the right to remain in this country provided they adhere to those criteria and do not commit any criminal offence for which they can be deported. That is the first principle which seems to me at issue. The second principle—
§ VISCOUNT DILHORNE
My Lords, the noble Lord says that they are principles at issue. His first principle does not arise on this Amendment at all. None of those principles do. This is a question of procedure on an appeal from a decision of immigration officers or the Secretary of State, and what should happen thereafter.
§ LORD STONHAM
With respect, they do arise, because we are dealing with cases of discretion, which as I shall explain again later are almost all cases of compassionate circumstances.
§ LORD WALSTON
In spite of what the noble and learned Viscount has said, I still agree with my noble friend that this is a question of principle. One of the principles which arises out of the remarks of the noble Lord, Lord Brooke of Cumnor, is whether in fact the same conditions which apply to aliens—whether they should be allowed in or should be deportable if it is in the common interest, or whatever the correct phrase is; whether they should be deported or should be denied access to this country—should also apply to Commonwealth immigrants. That I maintain is a matter of principle, and I hope the Government will stick to their present stand on that matter.
The second principle concerns the differentiation in nomenclature between immigration officers and entry certificate officers. I may have this wrong, but as I understand the Amendment to read at 57 the moment there is a different method of appeal, and different reasons for granting an appeal or refusing it, depending on whether entry has been refused by an immigration officer, who I take it is the man who is actually standing at the port or airport, or by an entry certificate officer, who I take it is the man who is to be attached to our High Commissions in Commonwealth countries. It is very much a question of principle that the right of appeal should be identical whether the would-be immigrant is denied entry into this country when he arrives at Heathrow or whether he is denied entry into this country because the entry certificate officer in New Delhi has refused to grant him a certificate. The grounds of appeal against both those decisions should be identical. Under the present Bill, that is so, whereas as I understand it these Amendments differentiate between the two. That is a very important point of principle which I hope and am confident my noble friend will recognise and will stick to.
In passing—and I do not want to detain your Lordships for any length of time—the noble and learned Viscount suggested that, as the Bill now stands, in 100 per cent. of the cases there will be appeals against the decisions of the court of first instance, against the original decision-maker. That I do not believe to be the case at all.
§ VISCOUNT DILHORNE
My Lords, I did not say that. I said there was nothing to stop unlimited appeals in cases involving the exercise of discretion. I did not talk about all the other cases.
§ LORD WALSTON
My Lords, the noble and learned Viscount is of course perfectly correct, but there was only relevance in his remarks—and I take it that all his remarks are full of relevance—if in fact he was suggesting that the number of appeals would be very high under this system as it now stands, and that therefore it ought to be altered in order to prevent, if not 100 per cent., at least 90 per cent. of the people whose applications were refused being able to appeal.
§ VISCOUNT DILHORNE
My Lords, I did not argue that point. I do not want to pursue the matter. What I pointed out—and I think it cannot be challenged—is that where there is an appeal from 58 the exercise of a discretion (the noble Lord said that there were grounds stated in the Bill. There are not; these are discretion cases, involving no grounds and no principles, only compassion), on an appeal to a higher body with equal discretion, I do riot see how you can impose restrictions by imposing the requirement to obtaining leave to appeal in these cases.
§ LORD WALSTON
My Lords, the noble and learned Viscount may not wish to pursue the matter but he is doing so. There is no reason why he should not; and I think it worth pursuing. Of course you cannot prevent people from appealing; but common sense, and to a certain extent cost, will prevent them from appealing. If the noble and learned Viscount and other noble Lords have studied the cases of people who at the present time have attempted to come into this country and who have been refused permission by the immigration officers, they will be aware that many of those people come here under a complete misapprehension and that the grounds on which they are refused entry are reasonable and correct. These people know that they have no grounds for appeal.
I will illustrate this by quoting one case which comes to mind—and there are many. When I was at London Airport not many weeks ago, a young man was coming in to pursue his studies at a certain college of aeronautics. When inquiries were made, it was found that he had not been accepted for the college, and that in fact that college accepted only people with Higher or Advanced level certificates, or the equivalent. The fact that the man does not have such certificates obviously means that he has no right of entry whatsoever and his whole case falls to the ground. In such cases, the people involved never think of pursuing an appeal against the original decision. I can assure noble Lords that there are many cases of that kind.
§ LORD WALSTON
My Lords, it is true that that was not a discretionary case; it was a case of fact. But it is the type of case where, as the Bill now stands, the applicant would be entitled to appeal, but would 59 not in fact do so. I stress this only because the noble and learned Viscount himself pursued it to some extent. I would assure the House there is no fear that the appeals system will be overburdened as a result of the wording in the Bill. On the grounds that this is a question of basic principle, and not simply one of machinery, I urge the Government to stand firm in their present line.
§ 5.23 p.m.
§ LORD STONHAM
My Lords, if, by leave of the House, I may briefly reply, I should like to deal with some of the points that were raised by the noble and learned Viscount, Lord Dilhorne. He said that this is a matter of getting the machinery right, as if it were a question of machinery only. This is not so, because the Amendment, as I read it (and I have been thinking about almost nothing but this Amendment for a week) seeks to circumscribe the right of appeal where the Secretary of State or a headquarters official had decided the case. As my noble friend Lord Walston said, the difference is one of principle. There is a real point of difference in that, in my submission, the Amendment of the noble Lord, Lord Brooke, would deny a fully effective right of appeal in some important cases.
The noble and learned Viscount, Lord Dilhorne, said that we were providing an unfettered right of appeal. In certain classes of case, if people want to appeal and can afford to appeal and think it worth while to appeal, their right is unfettered; and that should be so. He said that we cannot make rules to exclude some classes of person, and he thought that everyone refused entry would appeal. The position is already strictly circumscribed, because we are really dealing here only with cases of discretion. I dealt with this on Committee, and if the noble and learned Viscount will bear with me I should like to remind him of what I then said:The kind of case to which sub-paragraph (ii) of subsection (1)(a) would apply is one where the law and the immigration rules …"—[OFFICIAL REPORT, 6/5/69; col. 1033]
§ VISCOUNT DILHORNE
My Lords, may I help the noble Lord and save time? I quite agree. I was referring 60 only to discretion cases. I do not suggest that in any other cases there will be an unfettered right of appeal, because it can be fettered. My observations were limited to discretion cases. The question I posed, which is a different question from that raised by Lord Walston, was: how can you restrict, by requiring the granting of leave, an appeal from the exercise of an unfettered discretion to a body which has an equally unfettered discretion? I was dealing only with discretionary cases.
§ LORD STONHAM
My Lords, if we are dealing with discretionary cases, which means interpretations of compassion factors, I would point out that we have already limited the field—and strictly limited it—because compared with the total number of people coming in, and the still substantial number of people coming in for permanent settlement, these cases will not be so many—although they may be a substantial number. But in so far as they arise, their right to appeal in compassionate cases in those sections is unfettered; and we think that it should be so.
My Lords, the other point is that it seemed to me from what the noble and learned Viscount said that he was under the impression (I do not know if I have misinterpreted what he has said) that there will be an automatic appeal; that is, an appeal without leave from an adjudicator to the Tribunal in discretionary cases.
§ VISCOUNT DILHORNE
My Lords, I posed the question. I am not trying to quarrel with the noble Lord. I am trying to get the matter clear. I do not see how, in those circumstances, it is possible to impose a requirement of the obtaining of leave which could be either equitable or fair. I posed the question.
§ LORD STONHAM
There is no provision in Clause 7 (which deals with appeals to the Tribunal) for appeal without leave from an adjudicator to the Tribunal in discretionary cases. Therefore, the answer to the noble and learned Viscount on that point is that in such cases there is no automatic appeal without leave. I am glad at least to have been able to clear up that point.
If I have not said so in so many words, I believe that I have shown by the care I have taken over this Amendment on 61 the Committee stage that I realise how important and how complex it is. As I have already indicated, this is not the end of the story. It is by no means the end of the story in respect of aliens; because, although Clause 8 will be taken as the basis for the Aliens Regulations, there is still time to consider these points (and perhaps to amend what we may have first thought) w hen the Order is introduced. Of course it will be subject to debate and it will be some time before the Order is introduced. But with respect to this Bill and to the Amendments that we are now discussing, we think that we have it right; and if that statement proves to be over-optimistic, then the time to alter it will be when we introduce permanent legislation which, as Lord Brooke knows, is one of the things in the forefront of my mind on this particular subject.
I would say to the noble and learned Viscount, who thought that I had not been sufficiently forthcoming on the Amendment, that I have said about it all that I possibly could—
§ LORD STONHAM
If I had been sitting where the noble and learned Viscount is sitting, and he had still been sitting on the Woolsack, he would not have stood from me the allegation that he brushed aside the defects in the Amendment—defects which the noble and learned Viscount admitted. Also I think it is a cardinal principle that your Lordships should not press an Amendment the defects of which have been demonstrated. To the noble Lord, Lord Brooke of Cumnor, I would say how grateful I am for the care he has taken over this, and for the way he has tried to meet his own points, though I do not think he succeeded in so doing in a way acceptable to the House. If, as I believe, there is an issue of principle between us, then I am bound to say that I think the Government's principle in this matter is the right one.
§ 5.31 p.m.
§ LORD BROOKE OF CUMNOR
My Lords, we had an unsatisfactory debate in Committee on this paragraph and we have had another unsatisfactory debate to-day. I do not for a moment question that the noble Lord, Lord Stonham, has dealt as carefully as he could with the 62 matters which have been raised. The unsatisfactoriness stems from two things: first, that the wording of the Bill will not do, and secondly, that the Government have been unwilling to take sufficient trouble to find means of improving it so that it will do. We on the Opposition Benches have done the best we can with two separate and quite distinct Amendments, one in Committee and one on Report. Each of them would have done something to improve the wording in the Bill, but neither of them, I grant, is wholly satisfactory. In view of what has been described on all sides as the complexity and intricacy of this question I am inclined to think that it would be impossible for anybody except a Parliamentary draftsman to get the wording wholly right.
In my view, in my continuing view, this is a matter of machinery, and if the noble Lord, Lord Stonham, and the noble Lord, Lord Walston, argue that this is a matter of principle, let me again read what the Wilson Committee said in paragraph 143 of their Report, dealing with cases of people whose presence here is, or would be, offensive to public opinion: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 Committee also state in the same paragraph:We doubt whether the system of appeals which we are proposing would provide apt machinery for dealing with such cases.Now we have the Government ignoring that and applying this standard machinery to cases where the Wilson Committee themselves have said that that machinery will not be apt. Well, my Lords, we must see what happens in respect both of Commonwealth immigrants and of aliens.
I raised objection to what the noble Lord, Lord Stonham, said about the Bill applying only to Commonwealth immigrants, because it seems to me that in considering all the clauses of the Bill we have to bear in mind Clause 14, which empowers the making of an Order in Council applicable to the parallel case of alien immigrations, having regard to the provision made in the Bill for appeals in connection with the Commonwealth Immigrants Act 1962. Therefore, in 63 moving Amendments to the other clauses of the Bill, which admittedly relate to Commonwealth immigrants, one has to bear in mind all the time that what one is doing as regards Commonwealth immigrants will influence the terms of the Order in Council that will govern the position of aliens.
If the Government really believe that the unsatisfactory words in Clause 8(1)(a)(ii) are going to be satisfactory as regards Commonwealth immigrants, I have little hope of their being willing to make the effort to think up something better than that in relation to aliens. What will happen, as my noble and learned friend said, is that in every single case of a discretionary decision there will be an appeal—obviously there will. The person concerned has nothing whatever to lose, and there is always the chance that either the adjudicator or the Tribunal may take a different decision—as the appellate authority would be perfectly free to do—from the Home Secretary or the immigration officer. So there will be an appeal in every case. The appellate authority will get very tired of this and will ask why on earth Parliament did not legislate differently, so as to discourage appeals, many of which might be quite ill-aimed in that they had little chance of success. But once these words are in the Bill they convey to the potential appellant that he has a chance of success even where in fact he has not.
My Lords, I do not see much safeguard in the coming Aliens (Appeals) Order. The only protection I see is that it is, I believe, the intention of both the main Parties to introduce comprehensive legislation at an early date that will catch up into a single Statute all the relevant immigrants legislation, aliens legislation and this appeals legislation. We had hoped that that might have come along before now. The Government defended the introduction of this Bill in advance on the ground that it would be better to see how the appeals system worked before we had the comprehensive long-term legislation incorporating it. For once, I am grateful to the Government for an idea. I am quite certain that this appeals machinery, so far as Clause 8(1)(a)(ii) is concerned, will work very badly and it will become quite clear that 64 there must be a change when we have that comprehensive legislation that lies ahead of us. I feel deeply disappointed that the Government have not been willing to see the weakness in this provision which we have been criticising or, if they have seen the weakness, have not been sufficiently strong and bold to find the necessary way to amend it. I must conclude that there are defects in this Amendment, and it would be wrong for me to press it at this stage in the Bill. But I can end only by saying how profoundly unsatisfactory I find the Bill as it stands. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 21 [Liability of owners or agents of ships and aircraft for expenses incurred in respect of persons directed to be removed from the United Kingdom]:
§ 5.38 p.m.
LORD BROOKE OF CUMNOR moved Amendment No. 3:
Page 14, line 31, leave out ("current entry certificate") and insert ("document or documents appearing to render him currently eligible for admission into the United Kingdom").
§ The noble Lord said: My Lords, I beg to move Amendment No. 3. We now come to an entirely different subject that is still within the scope of the Bill. I feel grievously concerned that the noble Lord, Lord Stonham, should have said a few moments ago that he has been giving practically the whole of his time during the past week to considering my Amendments to Clause 8. I have an important Amendment to Clause 21 and I very much hope that the noble Lord will not have to improvise a reply to it; but if he does, I hope it will be favourable to my Amendment.
This arises out of the new clause which the Government moved into the Bill in Committee; that is, the clause which appears now as Clause 21. It deals with the
Liability of owners or agents of ships and aircraft for expenses incurred in respect of persons directed to be removed from the United Kingdom.
I had little time to consider this matter before the Committee stage. For reasons which I appreciate, the Government Amendment was put down at a relatively
late stage, but I expressed certain criticisms then, and I must repeat those criticisms, for it is on the basis of those criticisms that I have drafted this Amendment.
§ There are two main purposes which I wish to achieve by the Amendment. First, while the Government say that the carrier shall not be liable where a person when he arrived in the United Kingdom held a current entry certificate or was the person described on a current employment voucher, I said to the Committee that this appeared to be no safeguard to the carrier who had been deceived by forged documents. It is common ground between us that there has been forgery of documents. Some of those forgeries are so skilful that we have already accepted Amendments to the Bill which will safeguard the Government against having to disclose in public how they ascertained that the documents were forged. So there is no difference of opinion about the existence of these forgeries and the excellence of some of them.
§ It appeared to me that the Bill as it stood was not going to safeguard sufficiently the carriers, who would be very unlikely to be able to detect these exceptionally good forgeries. I believe that my Amendment would have secured that purpose, but the noble Lord, Lord Stonham, has been good enough to table an Amendment, No. 4, whereby, I think I am right in suggesting, he is desiring to meet my purpose. At any rate, it appears to me that Amendment No. 4, if adopted, will give the carriers the safeguard that I was seeking, and I am grateful for that proposed Amendment
§ But I have another reason for tabling this Amendment. Clause 21(2), to which my Amendment refers, deals only with people who hold a current entry certificate or who are described in a current employment voucher. The term "entry certificate" relates only to Commonwealth immigrants and not to aliens. For reasons which I mentioned a few minutes ago it is important to get the legislation right for both, because whatever we do in this subsection will presumably get, mutatis mutandis, into the Aliens Appeals Order which it is proposed to make under subsection (5) of this clause.
§ For aliens, visas are not normally necessary. Therefore, my Amendment 66 would safeguard the carrier—the shipping line or airline—provided that an alien carried a valid passport. He would not have an entry certificate, because they apply only to Commonwealth immigrants, and he would not have an employment voucher for the same reason. He might have a labour permit, because labour permits are issued to aliens, but only a small proportion of aliens coming into this country arrive with one. Certainly he would not have a visa, because at present they are not normally required for aliens. I do not know whether the Government, having made entry certificates compulsory for certain classes of Commonwealth immigrant, are intending to make visas compulsory for a large proportion of alien immigrants, but I doubt whether that is the case. This is the reason why I believe that these words in subsection (2) have to be widened in the way my Amendment suggests.
§ The principle underlying my Amendment is that the carrier can reasonably be held to be liable if there has been some failing on their part. I do not think that is challenged in any quarter. But if there has been no failing, the carrier ought to be protected by law against having expense put upon them. If a carrier brings a Commonwealth dependant without an entry certificate, they will know that he will not get into this country and therefore it will be a failing on their part if they fail to check this, but in the case of an alien the carrier cannot know whether there is any likelihood of leave to land being refused. The Government quote in their defence the United States law, but this is not a parallel, because admission to the United States normally requires a visa obtained before starting on one's journey. The British Government, so far as I know, are not intending to impose any similar restriction on aliens arriving in this country. I have heard of no suggestion that visas are to be compulsory for aliens. Therefore, there is no parallel between the cases.
§ The airline or shipping company taking an alien visitor or immigrant to the United States can see at once whether he has obtained a visa from the American authorities before starting, and if he has not, my understanding of American law is that no obligation then falls on the 67 carrier for that alien's maintenance or removal should he not be admitted. But in the case of the United Kingdom it is not possible for the shipping company or airline to protect itself in that way because visas are not compulsory. The British Government make no similar requirement on people arriving here, except for quite a small percentage of the total arrivals—the dependants of Commonwealth immigrants, as provided for under this Bill. This puts the carriers to the United Kingdom at risk to a degree to which carriers to the United States are not at risk. And what I am saying about the United States applies to other countries which insist on visas before they will admit people.
§ Moreover, I want to ask the Government what would the position of an airline or shipping company be if they accept aliens with passports but refuse to accept Commonwealth citizens with valid passports unless they also have entry certificates? How will such a carrier defend themselves against a charge of racial discrimination? It appears to me that the Government, with their eyes open, are putting the airlines and shipping companies in that difficulty. They are requiring them to demand more of a Commonwealth traveller than of an alien traveller. My Amendment would overcome that difficulty.
§ I submit that this whole problem has not been sufficiently thought out. Indeed, it is obvious that it has not been sufficiently thought out when the Government's proposals are going to leave with the carrier the cost of removing a person who is refused leave to land, even though accepting that the carrier should not be charged with the cost of the maintenance of that very same person while his case is under consideration in the United Kingdom. Clause 21, rightly, as I think, relieves the carriers of the expenses of maintenance of certain Commonwealth citizens if they are detained for a time in this country and then sent away. But, quite anomalously, it still leaves the shipping company or airline with the cost of removing those people although, by implication, it is said that the carrier did nothing wrong in bringing them to this country.
§ I appreciate that a possible reason for leaving the law in such an anomalous 68 state is because the cost of removing the person might be considered to be outside the scope of the Bill, whereas the cost of maintaining the person while in this country has been brought within the scope of the Bill by this clause and by the alteration to the Title which has been made. Because it would be outside the scope of the Bill, my Amendment does not rectify that particular anomaly; but it is my contention that it is time this whole subject was looked at afresh. As the noble Lord, Lord Stonham, said in Committee when he moved the new clause, we have been carrying on with the law, certainly as regards maintenance, in an uncertain state for many years; that is to say, since the first provision was made in 1905, when travel documents were very different from what they are to-day.
§ The Government have tinkered with the law to some extent by Clause 21. So far as it does partial justice to the carriers, I welcome it, but I think that noble Lords on all sides of the House must accept that it is anomalous and wrong that a shipping company, properly relieved of the cost of the maintenance of a passenger while detained in this country during the consideration of his case, should still be expected to pay the cost of removal of that same person if he is refused leave to land. Obviously, those two should go together. As I said in Committee, the Government should now set up an independent committee, which would establish all the facts of this problem, the amounts of money involved and the degrees of hardship in various directions, and then make recommendations. Quite frankly, we do not have sufficient information to get this right here and now.
§ If we leave Clause 21 unchanged, we shall be leaving the matter in a confused state. Meanwhile, until we can look at the problem as a whole (and I hope noble Lords will agree that it is a problem worth looking at as a whole), the acceptance of my Amendment would remove one anomaly. It would put matters on a better footing and safeguard carriers from having to pay for maintenance during detention in this country in cases where they had not been at fault in the slightest degree in bringing the people here.
§ The principle which I hope the Government will accept, and will in due course embody in future legislation, is 69 that the cost should lie where the fault lies. If there is a fault with the shipping company or the airline in bringing someone here and not checking his documents sufficiently, then that carrier should bear the cost. But if the carrier has checked the documents, has committed no fault, and is simply made to remove the person because the British Government have decided not to admit him, for reasons which the carrier could not have foreseen, then the carrier should be relieved of all cost. I hope that the Government will accept my Amendment, and will then proceed to the setting up of an independent inquiry, so that we can get this matter, too, completely right before the permanent legislation that we have all been discussing as a matter for the near future. I beg to move.
§ 5.54 p.m.
§ LORD STONHAM
My Lords, the noble Lord, Lord Brooke of Cumnor, may be right in saying that this wants looking at thoroughly, and that it is time the whole subject was looked at afresh. But at least this Government have looked at it and done something about it, which is something that no other Government this century have done. I think that we have had a pretty good shot at achieving equity and fairness.
The Amendment moved by the noble Lord would relieve the carrying company of liability for detention costs if the passenger held any document or documents appearing to render him eligible for admission. As the noble Lord said again to-day, in Committee he was primarily concerned to relieve the carrier of liability where the passenger holds a forged entry certificate or forged employment voucher; and, as he rightly said, if we want to keep secret how we shall detect forgery, we cannot expect carrier companies to detect good forgeries and they should not be made to suffer because of that. This the Government agree, and we hope that the House will agree, can be put right by an Amendment which I hope to move later.
The Amendment moved by the noble Lord is not confined to documents which appear to be entry certificates or employment vouchers. I am not really certain of its effect, but so far as I can judge the noble Lord's Amendment could be interpreted as including any document, 70 whether genuine or forged, that might be used to support a claim to admission to this country. This would go much too far. It could be argued that the statements about age and relationship in a passenger's passport "appeared to render him eligible for admission" as a dependant; but the Wilson Committee were satisfied that ages and relationships are sometimes mis-stated in passports, and I am sure the noble Lord would agree with that. It might even be argued that a letter offering a passenger a place in a college in this country "appeared to render him eligible for admission" as a student; or that a letter from a relative offering to accommodate and maintain the passenger during his stay here "appeared to render him eligible for admission" as a visitor; but such documents, though genuine in the sense of not being forged, are often used to support bogus claims to admission, as I am sure the noble Lord is aware from his time as Home Secretary.
If a passenger holds a document issued on behalf of the United Kingdom Government for the purpose of conferring a prima facie claim to admission, or what appears to be such document, then the carrier is justified in assuming that he will be admitted. Subsection (2) of Clause 21, as the Government propose to amend it, will relieve the carrier of liability for detention costs in cases of that kind. But it is not the carrier's function to decide whether any other documents a passenger may hold are such as to make him eligible for admission; that should be done by the entry certificate officer in the country of embarkation, or the immigration officer on arrival. The Government oppose this Amendment because it is so wide, and because it might encourage carriers to bring in immigrants without vouchers or entry certificates, which is contrary to Government policy and, as I understand it, contrary to Opposition policy as well.
The noble Lord, Lord Brooke, raised some points about aliens. I have only dealt so far with Commonwealth citizens. Aliens, as he surmised, will be covered by an Order in Council, and the Order will cover those with visas or work permits. We really cannot cover all aliens or Commonwealth citizens with a passport only; and as the noble Lord will appreciate his Amendment does not cover them 71 all either, because a passport does not establish eligibility to enter the United Kingdom. Eligibility to enter depends upon whether the holder satisfies our immigration policy, not merely on the possession of a passport.
I think the noble Lord said that his Amendment would cover all people carrying a passport. In fact it would not, because possession of a passport does not establish eligibility. If it did cover everyone carrying a passport it would mean that carriers would be relieved of all expenses in respect of passengers refused entry, expenses that they have borne for fifty years, and the Government think this would be wrong. In our view, the new clause, when it is amended, will relieve the carriers of perhaps one-third of their present costs, coupled with what I think will be the still greater savings arising from the fact that entry certificates will prevent many people who now come here, who have no eligibility for entry from coming in the future. I am quite sure that the noble Lord was right when he said that now we have started to look at this, and have gone some way along the road, we must look at it further.
I would correct a misapprehension under which the noble Lord laboured in Committee on this point in regard to the practice of other countries. He suggested in Committee:that an airline or a shipping company which 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."—[OFFICIAL REPORT, 6/5/69, col. 1147]I ventured to say to the noble Lord on that occasion that I thought he was wrong in believing that. I have since rechecked, and I can confirm that no provision in such wide terms can be found in the relevant provisions of the law of the United States, Sections 233(c) and 237(a) of the Immigration and Nationality Act 1952, and Canada, Section 40(4) of the Immigration Act 1952. Both those Acts in those countries grant relief only on the basis of valid documents.
I also made inquiries about Australia. I had some difficulty in ascertaining the 72 law there, but by a coincidence the Chairman of P. & O. Lines, who led the shipowners' representatives at the meeting with my honourable friend the Under-Secretary of State on April 23, has written to ask for our help in connection with a man with a criminal record in this country, who broke his bail here, and sailed for Australia on a P. & O. ship, but was refused entry there. P. & O. Lines take the view that because the police failed to prevent the man from leaving this country, the police authority concerned ought to reimburse the company,the equivalent of sterling £294, which amount we have suffered in maintaining him in Australia and returning him to the United Kingdom.That is proof positive that in Australia a shipping company can be liable for detention costs, and bringing the person back. This is another example where the noble Lord is right in thinking that we had better have a closer look at this; and it shows that the carrier companies should also have a look at it, because they do not know the law in other countries.
With regard to the carrying company having to pay for repatriation—as indeed they will under the noble Lord's Amendment as well—we have always taken the view that in most cases there is little or no extra cost to the company, because it simply means sending the person back on an extra seat on the aeroplane. In terms of the real cost it is very little more for them. I feel that what I have said is not wholly and immediately relevant to the noble Lord's Amendment, but I thought it might clear up the position overseas if I gave this information. I think, however, the noble Lord will accept that what he has asked for in his Amendment is much too wide, much more than he really wants, and that the Amendment I hope to move later will meet the main point he made on Committee. I hope that on that understanding he will feel able to withdraw the Amendment.
§ LORD BROOKE OF CUMNOR
My Lords, I do not accept that my Amendment goes much too wide, but I would certainly accept that no private Member of your Lordships' House can be certain when he is drafting an Amendment that it is going to mean in practice 73 exactly what he wishes it to mean. I am encouraged, therefore, that the noble Lord, Lord Stonham, in his careful reply to my Amendment, though he was not ready to accept it, agreed with my suggestion that this matter deserves to be looked at afresh as a whole, for that is my main feeling.
I want to apologise to your Lordships for having made an incorrect statement in Committee about Australia. I think I said that the Australian law imposed no obligation at all on shipping companies or airlines in this matter. That is clearly incorrect. I believe it is the case that although Australian law does impose an obligation, that obligation is not enforced unless there is some failing on the part of the carrier. I thought the figures of total cost which the noble Lord quoted from the Chairman of P. & O. Lines cut across his argument that normally the cost of removal is negligible. I appreciate that some of that cost must have been incurred in Australia, but I cannot really believe that the P. & O. could return somebody from Australia to Britain by sea, and not feed him at all on the journey.
Surely it must be recognised that in these matters the shipping companies and airlines are in a somewhat different position. The noble Lord said in Committee that removal would mean the person occupying a seat, which would otherwise be empty, on an aeroplane that was returning. That might be so; and the person might not require very much food on a short journey. But I do not think the shipping companies are in anything like the same position, and I am sure the noble Lord's humanitarian sense would not wish these people to be deprived of all food on a journey of three or four weeks.
The noble Lord said that the obligation on the carriers to pay the cost of removal had gone on for fifty years and that this was not the time to change it. This is surely an incomplete argument because this problem has become much worsened, or shall I say much accentuated, over a period of fifty years. If the noble Lord would care to look up the figures of arrivals in the United Kingdom fifty years ago and now, he will find that the increase has been enormous. Therefore, the carriers are at risk to that 74 much greater an extent. Of course, they are put further at risk when Parliament passes legislation imposing new restrictions on entry into this country.
I hope I have made clear by this Amendment that I am grateful for what the Government are doing, but I am not satisfied that it goes far enough. I have expressed appreciation of new Clause 21, so far as it goes. I have expressed appreciation that the Government have taken the hint from my speech in Committee and have now put down their own Amendment to safeguard the shipping companies against penalties if they are deceived by well-forged documents. I think there is further work to be done on the subject. But, having persuaded the Government to agree to that, too, I am not so keen on the words of my Amendment as to think that this is the right stage of the Bill to press it. I therefore beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.13 p.m.
LORD STONHAM moved Amendment No. 4:
Page 14, line 32, at end insert ("; and for the purposes of this subsection a document purporting to be such a certificate or voucher shall be treated as genuine unless its falsity is reasonably apparent.")
§ The noble Lord said: My Lords, subsection (2) of Clause 21 relieves the carrying company of liability for detention costs where the passenger is the holder of a genuine entry certificate or employment voucher. The Amendment I am now moving will also relieve the carrier of liability where the passenger holds a document which is not a genuine entry certificate or voucher although the falsity is not reasonably apparent. This is precisely the point which the noble Lord, Lord Brooke of Cumnor, raised in Committee; and by this Amendment we recognise the force of the noble Lord's argument, that a carrier who brings a passenger on the strength of an apparently genuine employment voucher or entry certificate will feel unfairly treated if he is made to bear the cost of detention because it turns out that the document is forged and the passenger is ineligible for admission.
§ The reason why we have said that this document should be treated as genuine unless its falsity is reasonably 75 apparent is that we do not want this provision to be used in respect of people—remembering that we are dealing here with a stamp on a passport—who might come in with not merely a forged but a blatantly forged document, or even a blur, if you like, on the passport, and say that that is an entry certificate. There could be quite a thriving trade in things of that kind if they thought they might get away with it. But we greatly value the co-operation of carrying companies in encouraging the use of the entry certificate procedure. We believe that this will be a useful concession all round, and we are very grateful to the noble Lord for suggesting it.
§ Your Lordships may ask who will ultimately decide whether the falsity of a document was reasonably apparent. The answer is, a county court judge. For if a carrying company refused—in the Home Office's view unreasonably refused—to pay the detention costs the Home Office would have to bring proceedings in the county court, and the judge would decide whether the carriers were justified in resisting the request for payment, or whether we were justified in demanding it. My Lords, I beg to move.
§ LORD BROOKE OF CUMNOR
My Lords, I have already expressed appreciation to the Government for this Amendment. I am sure that it will improve the Bill. I would only say that if I had been wanting to draft an Amendment to achieve the purpose which the noble Lord has described, I should never have put it into these words. That just goes to show how much cleverer Parliamentary draftsmen are than I am. And I think that the county court judge would have to be quite clever, too, because to treat something as "genuine unless its falsity is reasonably apparent" is a roundabout phrase. I have seen various documents and I am not quite sure what has been reasonably apparent in them. However, we have it on the best authority that this Amendment will do what the noble Lord says it will, and I very much hope that your Lordships will accept it.
§ 6.15 p.m.
§ Then, Standing Order No. 41 having been suspended (pursuant to Resolution):76
§ LORD STONHAM
My Lords, I beg to move that the Bill be now read a third time. I believe we have done a good job on this Bill, and I assure your Lordships that I shall not spoil it by making a long speech. But there are some things it is essential I should say. The Bill has three main effects. Part I provides for the introduction of a system of appeal against decisions in the field of immigration control. Part II gives power for the deportation of certain Commonwealth citizens who are in breach of their conditions of admission. Part III (Clause 20) introduces a requirement for Commonwealth dependants to have obtained entry certificates before they can exercise their statutory right of entry.
There has been a general welcome for Part I of the Bill. It acknowledges that in this day and age there should be not only justice for the stranger who is within our gate, or who is knocking at the door, but also an assurance of justice. Part I achieves this by providing for a right of appeal to an independent authority against decisions taken in the field of immigration control by the Home Secretary or his officers. The only doubts in your Lordships' House have been whether the Bill does not go too far in the direction of surrendering control to appellate authorities who are not responsible to Parliament. My Lords, we cannot have it both ways: we cannot both preserve the full responsibility of the Executive, and at the same time provide a truly effective right of appeal against the decisions of the Executive.
But both at Committee stage and again to-day I have explained the safeguards in the Bill which, in the view of the Government, will enable the Executive to retain adequate powers of control. Among these are the Home Secretary's power to make new immigration rules; the special provision for security cases (and, in the case of aliens, political cases); the provision whereby the most sensitive cases of admission will not be finally decided by an adjudicator but can be brought before the Tribunal, where the Home Secretary considers this to be in the public interest; and finally, the provision whereby the most difficult cases of the deportation of aliens are decided by the Tribunal, and not by an adjudicator. With these safeguards, the 77 Government consider the Bill to be satisfactory; but we shall have an opportunity of looking again at the working of the appeal system, in the light of experience, when we come to enact permanent legislation for immigration control.
I cannot say when the statutory appeal system provided for in Part I of the Bill will be brought into operation. No time will be lost, but there is a heavy programme of necessary preparations. Premises have to be built or otherwise provided for the hearing of appeals; staff have to be recruited and trained; adjudicators and members of the Tribunal have to be appointed; and the rules of procedure have to be drafted and submitted to the Council on Tribunals. These preparations will be put in hand at once.
Of Part II of the Bill I need only say that it is obviously sensible and humane that there should, subject to the right of appeal, be a power to deport Commonwealth citizens who are in breach of their conditions of admission without the present cumbersome procedure whereby such a person has to be prosecuted and recommended for deportation by a court of law.
As to Part III of the Bill, Clause 20 makes a substantial change in the procedure for the admission of Commonwealth dependants for settlement by requiring them to have obtained an entry certificate before setting out. The case against this change was put in Committee by the noble Lord, Lord Foot, in a speech of great power and penetration. I will not reopen the arguments, but I think that the noble Lord underrates the hardship caused by the present arrangements. The change is one in the interests of the genuine immigrant, designed to free him from the apprehension of refusal of admission and the prospect of an experience that may be distressing on arrival in the United Kingdom. Despite what has been alleged in certain quarters, the change in procedure was in no way motivated by a desire to reduce the number of Commonwealth dependants entering this country. And here I should like to draw the attention of noble Lords to a reply given in another place on May I which brought out the point that in the first quarter of 1969 the number of Commonwealth citizens admitted for settlement was about 25 per cent. below the figure for the first quarter of 1968. If 78 that reduction in numbers had taken place after entry certificates had been made a requirement, it might have been said to be a consequence of the introduction of that requirement; and that is why I think it right to take this early opportunity to put it on record that the reduction took place before there was any question of entry certificates becoming obligatory. It was a reduction I forecast in December last year.
In Committee, doubt was expressed about the effectiveness of the non-statutory right of appeal against the refusal of an entry certificate that we are introducing straightaway. Of course it is not an easy matter; but we are determined to do our best to make it work. In this respect, therefore, there will be no fundamental change from the arrangements which the Wilson Committee envisaged. But we shall certainly keep the working of these arrangements under careful review. As the noble Lord, Lord Brooke, said in Committee, the effective operation of the system of appeals against refusals of entry certificates is to a large extent dependent upon the part that the voluntary organisations are prepared to play in assisting Commonwealth dependants. I entirely agree. At the Committee Stage [OFFICIAL REPORT, 6/5/69, col. 1105], I told your Lordships that the Home Office would be discussing with a number of voluntary bodies on May 8 the part that they could play in the representation of appellants under the interim appeal arrangements. I am glad to be able to tell the House that the voluntary bodies chiefly concerned are willing to provide advice and assistance for Commonwealth dependants who are affected by the new requirement for entry certificates.
These bodies, the Joint Council for the Welfare of Immigrants, and International Social Service of Great Britain, have offered to consider what arrangements could be made for advice to be available to dependants in their countries of origin, both on how to apply for entry certificates and how to appeal if an application is refused. They have also offered to provide advice for sponsoring relatives in this country about the entry certificate procedure, and to represent applicants at the hearing of appeals. These offers are conditional on the cost of these facilities being met from public funds. We warmly welcome this willingness to co-operate in working out the new arrangements to 79 the best advantage of Commonwealth dependants. We have invited the voluntary bodies to let us have more details of their plans, with an estimate of costs. This estimate we have now received, and we shall consider, in consultation with our colleagues in the Treasury, what measure of financial assistance we can provide so as to ensure that immigrants are fully aware of, and able to exercise, their rights under the new procedure. We do not underestimate the practical difficulties of introducing this kind of appeal system; but we should not, in considering how best to overcome them, lose sight of the painful aspects of the system of immigration control that it is to replace
My Lords, I believe that the Bill in the substantially improved form that it leaves your Lordships' House makes provision that is both sensible and just; that it will do much to remove from controversy decisions in the field of immigration control; and that in doing so it will remove an irritant from community relations in this country. For these reasons, I commend the Bill to your Lordships.
§ Moved, That the Bill be now read 3a.—(Lord Stonham.)
§ 6.27 p.m.
§ LORD BROOKE OF CUMNOR
My Lords, I was glad to hear the noble Lord pay a tribute to the improvements which have been made to the Bill in its passage through your Lordships' House. I should like further to congratulate him on his success in piloting it through. The Bill is founded largely on the Report of the Wilson Committee. It has been a long time in coming, and many of us feel sore that the comprehensive legislation dealing with the entry of both Commonwealth citizens and aliens is still postponed. Nevertheless, things are as they are, and I have no doubt that the experience of working this Bill in practice will provide valuable material for those who have to prepare the subsequent comprehensive Bill.
We are breaking fresh ground in the matter of appeals, and all of us who have been in positions of ministerial responsibility know how easy it is to get it wrong the first time if one is in fact breaking fresh ground. I have already indicated to your Lordships our dissatis 80 faction in regard to Clause 8. There we can but hope that experience will show how the comprehensive permanent legislation should be drafted so as to avoid the shortcomings which I feel certain will become apparent in practice. I am equally convinced that it is a defect of the Bill that it does not extend in regard to Commonwealth citizens the power which the Secretary of State has had for many years to make a deportation order if he considers that the presence of an individual in this country is not conducive to the public good, that being usually because of the man's associations or character or habits.
My Lords, we certainly have effected improvements in the Bill, both directly and indirectly: directly, for example, through Clauses 20 and 21 and the Government Amendment which, in a sense, I begot, and indirectly through remarks that I made on the Second Reading having brought the Government to the point of setting up outside the Bill a proper non-statutory machinery for providing a right of appeal to the United Kingdom resident who is denied a passport. I feel certain that it will be appreciated by all that the liberty of the subject in difficult cases has been thus enlarged. My Lords, the subject of this Bill is not without controversy, but I hope your Lordships will agree that we have all approached our task in a spirit of genuine service, not seeking to widen differences but to try jointly to improve the measure. In my view that is the principal justification for a Second Chamber, and I think that in this Bill we have proved once again the value of a Second Chamber in the legislative process of Parliament.
§ 6.29 p.m.
§ LORD BROCKWAY
My Lords, I hope your Lordships will excuse me if, for a short time, I hold up the passage of this Bill, because I was unable to be here on the occasion of the Minister's announcement of the new arrangements for entry permits, and I was not able to be here during the Committee stage. I need not say that I am deeply interested and have been concerned about all the issues which have been raised. When this Bill was first introduced it was a measure to give Commonwealth immigrants a right to appeal against decisions which prevented them from entering this country, and on the Second Reading of 81 this Bill I was able to give it wholehearted support, though I indicated then that I hoped certain Amendments would be moved. Let me say I would particularly have supported the Amendment moved by the noble Lord, Lord Brooke of Cumnor, regarding the right of residents of this country who were denied passports.
I have read the whole Committee proceedings in great detail. May I tell the House what was my first impression? It was an impression of appreciation of how from all sides of this House there was a desire to give in the machinery of this Bill the greatest assurance of and opportunities for fairness and liberty. I exclude from that statement only one very bad Amendment moved from the other side and its very much worse speeches in support; but, fortunately, the House did not accept that Amendment. Otherwise the debate during the Committee stage was another indication of how this House can make serious contributions towards the solution of problems which are difficult and very intricate. I want to pay that tribute to those discussions.
When the announcement was made that this Bill was to be extended from providing the right of appeal by Commonwealth immigrants to requiring the introduction of compulsory entry permits before they reach this country, my noble friend Lord Stonham—and I express my thanks to him—said it was unfortunate that I was not present but that an Un-starred Question which I had tabled indicated that I was… wholly in favour of this change".—[OFFICIAL REPORT, 1/5/69, col. 963.]I should have thought that the terms of my Unstarred Question, which I was unable to move because of an accident that day, indicated my qualifications to this proposal and indicated that I was not "wholly in favour of this change". In that Unstarred Question I put two qualifications: first, that there must be the personnel in the Commonwealth countries to carry out this change, and, secondly, that there must be an arrangement with Commonwealth Governments by which the applicants in distant villages and islands might have an opportunity to make their applications.
My Lords, of course I am in favour of ending the terrible procedure in exis 82 tence at present by which Commonwealth immigrants come to Heathrow Airport from primitive conditions into another world here. Any of us who has seen women, children, women even with infants in their arms, lined up held there for hours, not knowing where they are, utterly bewildered by this strange world which they have entered, and then interrogated, often by interpreters who say they know their particular language but have no knowledge at all of the dialect in which they speak, must recognise that the appalling misery for which we are now responsible has got to be ended. Because of this, I am all in favour of this proposal, instead of leaving these wretched people to be brought from their distant villages first to the High Commission office, then put in an aeroplane of whose existence they cannot even begin to think and finally landed at a London Airport with these vast modern buildings—to them it might be another planet.
When it is said that one has to amend that procedure by seeking to find a method by which before they leave they may be assured of their right to come to this country or of their inability to come to the country, one realises that it is a humane measure which every one of us who has seen these difficulties has to support. I add to that, because I hive some knowledge of this subject, that we have no right to place upon the immigration inspectors at Heathrow a decision on the matters which they are to judge. It is beyond the most experienced and the most sympathetic person to be able to decide on those issues which arise there. For their sake, as well as for the sake of the immigrants themselves, I want to see an end of this system.
But I want to sound this warning. There is a very great danger indeed that by deciding, almost over a week-end, at least so far as the public announcement was concerned, that compulsory permits must be obtained before those people leave their countries, we may make the misery, I will not say worse, but certainly no less than now exists. I have here an issue of the Daily Pakistan Times for April 19. It has a picture of the queues which line up before the High Commissioner's office to obtain exit permits. It has a description of the men, women and children, women with babies at their breasts, standing outside the iron 83 door of the High Commission office in the early hours. The iron door is opened at 8 o'clock. There are 200 of them; 30 are admitted. This descriptive report goes on to say that these women with babies, these old people, these youngsters, entrench themselves from early morning in front of the iron gate of the immigration office of the British High Commission for an interview; 30 out of 200 are allowed inside. The rest wait there for days—six days, maybe—before they are able to be heard. I just warn the Minister that he is in danger of transferring this appalling misery which occurs at Heathrow Airport away to the High Commission offices in India, Pakistan and elsewhere, out of sight.
§ LORD STONHAM
My Lords, may I interrupt my noble friend? He mentioned the date, April 19, which was of course three weeks before any announcement was made of this change. Apparently this is what has been going on. I am interested and most distressed to hear it, but we have already given an assurance that because of the increased work there will be an increased staff of experienced immigration officers who will act as entry officers. I can give my noble friend my personal assurance that if this is not enough then there will be more. I entirely agree with him that this difficulty must not be allowed to arise.
§ LORD BROCKWAY
My Lords, I thank my noble friend, because I appreciated what he said when the Motion for Third Reading was moved. But there is going to be a very great difficulty about this. During the Committee stage my noble friend said that it might be necessary to provide for double the number of applicants. I think he is a little conservative there; I believe that the number is likely to be larger. I have in mind a proportion of eight to one of the Indian immigrants.
§ LORD BROCKWAY
Yes; with that I shall deal later. At the moment, I am just going to emphasise that this will require a quite extraordinary development of our personnel at the High Commission offices. At present the staff are 84 inadequate. Even now, applicants wait for six days. To double the staff would be utterly inadequate. The difficulty which my honourable friend has to meet is that the personnel required for this j task must be not only persons of know-ledge and experience, but persons of a quite extraordinarily sympathetic attitude and understanding. He will find it most difficult to provide such personnel at the High Commission offices.
The second difficulty is that applications will often be made at distant villages. I speak with some knowledge of this. My childhood was spent in a distant village in India. There you will have children requiring to join their father; and a young woman requiring to join her husband in this country. They will be utterly isolated. This applies particularly to India and Pakistan. It applies also to some small islands in the Caribbean. That young wife has never been out of her village; those children have never known anything outside their village. What is going to happen to them?
I hope I am not disobeying the Rules of the House in making this kind of speech on Third Reading.
§ LORD SHACKLETON
My Lords, no; I must say that I do not think the noble Lord is disobeying the Rules of the House. It is perhaps unfortunate that he was not able to make his speech at an earlier stage of the Bill, because it is more customary that on Third Reading speeches should be directed to the actual content of the Bill. But there is no specific guidance on this; it is merely in my experience that, on the whole, one tries to keep one's speech short. I may say that I appreciate that the noble Lord is raising some quite serious points in relation to the implementation of the Bill, and therefore I felt a certain diffidence in interrupting him for that reason. But I think perhaps he might have regard to the fact that it is a rather unusual thing that he is doing.
§ LORD BROCKWAY
My Lords, I appreciate that. I understood that the noble Lord was a little concerned, and I almost invited his interruption because I am anxious to meet the spirit of this House. I will try to be concise in my further remarks. I only say to the House that it was not my fault—or perhaps it 85 was—that I was not here on the earlier occasions.
§ LORD SHACKLETON
My Lords, may I interrupt the noble Lord, to say that I am sure that all your Lordships were most sympathetic towards the noble Lord and we are glad to see him in such excellent form. But, of course, his non-appearance was not the fault of the House, either.
§ LORD BROCKWAY
My Lords, I appreciate that. In that spirit I will try to continue. I was speaking of the utterly isolated women and children and elderly in villages 500 miles from the High Commission offices. These people have never been outside their village. How is one to deal justly with them? I am going to say to the Minister that this requires the closest co-operation of the Commonwealth Governments. I suggest that it requires that the Commonwealth Governments should have advisers at district centres, with arrangements for the transport, both from the village to the district centre and from the district centre to the High Commissioner's office, of those who wish to make applications, so that the applicants may have proper advice and consideration.
My next point (I could have added much more to the last one, but I have been brief) concerns the provision for hearing cases and for appeals. I want to urge upon the Minister that provision should be made for a friend, not necessarily a lawyer, to be available when the application is heard at the High Commissioner's office. Happily, I am not a lawyer, but I have often acted as a friend at tribunals. The principle that is applied at tribunals in this country should surely be applied to the cases of applicants in Commonwealth countries. My suggestion is that there should be discussions with the Commonwealth Governments regarding provision for this sort of thing.
There may be an appeal to London. I was deeply grateful to hear from the Minister, in his speech in opening the debate on Third Reading, about the provision being made regarding the assistance of the Community Relations Commission, and (I think I am right in the term) the International Council for Social Services. I welcome his statement; 86 I appreciate it tremendously. I would urge that they, and possibly the National Council for Civil Liberties as well, should receive information—
§ LORD STONHAM
My Lords, they left the "consortium", if I may put it that way. They announced their disagreement with this Bill and the Government's policy, and unfortunately they left the consortium of welfare organisations.
§ LORD BROCKWAY
My Lords, I would only say to my noble friend, as in another case where I hope that some compromise agreement will be reached, that I hope it will be possible to find a basis for agreement on that issue. What I am asking is that appropriate organisations in this country should be given the fullest information about the applications which are made to the High Commissions, and that they should be allowed to be represented when these cases are heard on appeal.
My last point is that despite these arrangements there will be certain individuals who, when they arrive in this country, will be regarded with doubt and be detained. I welcome the proposals which are now being made that accommodation should be provided. I will try to speak calmly, but I regard it as an absolute infamy that a Pakistani girl should have been kept for nine weeks in Holloway Prison while her case was being considered, the Government having to acknowledge, at the end of those nine weeks, that sufficient information had been received from Pakistan to justify her release at least for three months while the investigations went on. That was an appalling thing. The girl could not speak English and was put in Holloway Prison. It was a shocking outrage. I am glad the Government are now thinking in terms of new accommodation. Kent has given a precedent for this. If this girl had arrived at a Kentish port she would never have been sent to Holloway Prison. She would have gone to one of the hostels which have been provided there. I hope that the Government will, at a very early moment, put this crime right.
These considerations lead me, because of the absence of personnel to deal with this problem in the High Commission offices, because of the failure at present 87 to reach an agreement with Commonwealth Governments regarding those in distant places, to oppose compulsion at this moment. Before compulsion is introduced for entry permits from Commonwealth countries, adequate arrangements should be made for the personnel to deal with appeals, and adequate arrangements made for those who are in distant places. Let me just add this, my Lords. I am not so much in agreement with many of my friends who regard this matter as one of principle on the issue of a visa. I take the view that the present restrictions amount to a visa, and in that respect the change that is now being made makes very little difference in principle. I hate the whole system, but I am concerned that arrangements should be made which are fair and humane. This requires much more preparation and organisation than immediate compulsion will permit. I hope that Her Majesty's Government will consider these proposals again, and make sure that the arrangements which they are proposing, from quite human motives, are as humane in practice as they are in intention.
§ 6.56 p.m.
§ LORD GIFFORD
My Lords, I have substantially changed the speech I was going to make, partly because a number of the points I was going to raise have been made by my noble friend Lord Brockway, and partly because of the announcement which my noble friend Lord Stonham made as to the result of discussions held with the voluntary bodies. I was very pleased indeed to hear that announcement, and entirely welcome the sympathetic and positive approach that the Government seem to be making towards the question of the provision of funds to these voluntary bodies, and I would urge them not to be niggardly in this respect. I would go so far as to say that adequate assistance to these organisations to give help not only at the ports of entry but in the countries of origin is vital to the proper working of this Bill, and in particular to the new provisions of it which were brought in last week. Not only must representatives of these organisations be on hand to give advice to try to cut down the delays, to give assistance, to help the applicants for entry certificates to produce the right kind of evidence and to make available skilled 88 advice from people who know what the difficulties are, but also—and I do not think my noble friend would think it wrong—I believe that in the form of these organisations there should be a watchdog over the workings of this new machinery.
For instance, I find it most regrettable that more or less the first that we in this House, Members of Parliament, knew about the workings of the High Commission office in Pakistan was from a newspaper report which happened to come into the hands of my noble friend. I hope that my noble friends—who well know of the apprehensions that I and others have as to the workings of this Bill—will welcome the assurance that was given. I feel it is of great importance that if the machinery is creaking the matter can be communicated to Members of Parliament in this country and questions asked, because in that way we can ensure to our satisfaction that the machinery will be working properly. I am quite certain that the machinery is being set up at such short notice that inevitably it will creak in the initial stages.
I would only add to my request that the Government be not niggardly, the request that the machinery for the voluntary organisations be set up with the same alacrity and rapidity as the machinery of compulsory entry certificate procedures, because the two must go hand in hand. I will say no more about the various doubts I have had—I still have them—but at least with the approach that is being made to the voluntary organisations, provided they are properly assisted and financed, we may have some way of ensuring that the kind of situation my noble friend has referred to is reduced to the minimum, and that this new part of the Bill which was introduced so recently can in fact be humane in practice and not cause the other kind of hardship to which my noble friend referred.
Having said that—and my noble friend knows my apprehensions—I should like to say, so far as the rest of the Bill is concerned, that until last week this was a thoroughly good Bill in the eyes of everyone interested in these questions. So far as the vast number of immigrants, students, visitors and aliens are concerned, it is still a very good Bill and provides the kind of just appeal for which 89 so many of us have been pressing. Bearing in mind what has been said this afternoon, I hope that it can be as good a Bill for Commonwealth dependants.
§ On Question, Bill read 3a with the Amendments and passed, and returned to the Commons.