§ 2.55 p.m.
§ THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM)
My Lords, I beg to move that the Bill be now further considered on Report.
§ Moved, that the Bill be further considered on Report.—(Lord Windlesham.)
§ On Question, Motion agreed to.
§ Clause 3 [General provisions for regulation and control]:
§ THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL)
My Lords, before calling Amendment No.23 I should point out that if Amendment No.23 or Amendment No.24 is agreed to I cannot call Amendments Nos.25 to 28.
§ LORD SHEPHERD moved Amendment No.23:
Page 4, line 1, leave out subsection (2) and insert—
("(2) The Secretary of State shall by statutory instrument make rules regulating—
§ [2A] Rules made under subsection (2)(a) or (b) of this section may provide for conditions to be attached in different circumstances.
§ [2B] No rules shall he made under subsection (2) of this section unless a draft thereof has been laid before Parliament and approved by a resolution of each House thereof.
§ [2C] The Secretary of State may from time to time by statutory instrument amend any rules made under subsection (2)(a) of this section but any amendment so made shall be subject to annulment in pursuance of a resolution of either House of Parliament.
§ [2D] The Secretary of State may from time to time by statutory instrument amend any rules made under subsection (2)(b) of this section but any amendment so made shall be of no effect unless a draft thereof has been laid before Parliament and approved by a resolution of each House thereof.")
§ The noble Lord said: My Lords, in Committee and on Report we have been considering the principles governing immigration in the future both for aliens and for Commonwealth citizens. The Bill certainly raises new principles so far as Commonwealth immigration is concerned. The Amendment that is now before the House does not deal with a new principle. It is a part of the continuing battle of Parliament to exercise control over Her Majesty's Ministers and, of course, the civil servants who administer policy. I hope, therefore, that the House will look at this Amendment on that basis, as part of the continuing struggle 315 of Parliament to maintain, and if possible extend, its control over the Executive. The Bill that is before us not only is important so far as Commonwealth citizens and aliens who are at present here are concerned, but will have a considerable impact upon immigration in the future, particularly upon the question of the conditions under which men and women will live in this country once they have been admitted through our immigration control. Clause 3(2) of the Bill provides that the Secretary of State shall lay before Parliament what are called the rules; and that if there are any changes to those rules he should notify Parliament, again by making a statement, and it is left to Parliament whether or not to object to those rules. I think the Government have conceded that the subsection as now drafted does not meet the desires of the House. The subsection at present does not provide for the Secretary of State either to act within a particular time or to meet the particular wishes of Parliament. The Government, in Lord Windlesham's Amendments, clearly recognise this difficulty and certainly they meet our point, but do not in our view go sufficiently far enough.
§ What we are suggesting, and I think that this is a real principle for Parliament, is that when a Minister wishes to make changes in policy, so far as possible, and certainly where there is an important change of policy, he should come to Parliament to seek approval. That has always been a fundamental principle of both Houses. It is recognised, however, that there are occasions when Ministers are required to act perhaps without Parliamentary approval, and in the past arrangements have been made through the system of Statutory Instruments so that Ministers can act within the parent Act but have to come to Parliament for acquiescence and approval of their earlier actions.
§ The Government have laid before us two draft sets of rules, one governing control on entry and another control after entry. These are two Papers of considerable importance. They will not only be administratively important but will also raise matters of quite considerable principle: first, as to conditions under which immigrants should enter this country and, 316 secondly, as to the conditions under which they should remain and continue to live within our midst. I suggest that these two sets of rules should be approved by Parliament in the very first instance. I should think that there is no administrative difficulty for the Government or for the Department, recognising the importance of these rules, in laying them before Parliament and seeking Parliamentary approval through the Affirmative Resolution procedure; in other words, by the Minister seeking approval. That is provided for in the first part of Amendment No.23.
§ As I said earlier, we recognise that, particularly in the case of entry, there needs to be a high degree of flexibility. It may well be that the Home Secretary may have to make a very urgent decision. and before carrying out that decision, which it might perhaps be in the national interest for him to do, he might not have the time to come to Parliament to seek approval. That was certainly the view of the previous Home Secretary, Mr. James Callaghan, and I think it is a view which we on this side of the House would accept. So in the Amendment we suggest that, again by Statutory Instruments the Home Secretary should make an Order, and change the rules if necessary; that he should be able to act immediately on those rules, and that it would be open to Parliament to question them through the well-tried system of moving a Prayer in either House; that is, the Negative Resolution procedure. It would permit the Home Secretary to act quickly, as he may have to, and Parliament to consider, and if necessary to adopt the Negative Resolution procedure.
§ When we come to the rules governing residence, we are dealing with men and women who have come to this country and been accepted, and are now living in our midst. If it were not for the absence of the right passport or the right stamp on the passport these people would be no different from any of us in this Chamber. These rules will have a profound effect on the whole position and situation in this country of such people. Looking at the rules as they are drafted, my Lords, I do not think that anyone could say that there would need to be any change in them which would require urgent or instant 317 action. Because these rules are so important we believe, as I said earlier about their initiation, that the Home Secretary should come to Parliament and seek approval for them. I should have thought there was no administrative difficulty whatever about the proposals outlined in the Amendment. They give the Home Secretary all the flexibility that he needs in order to take action. Where there are important conditions in those rules Parliament will be retaining its customary power and responsibility and the control which it has demanded in the past for its own people.
§ My Lords, I have referred to administrative difficulties. It seems to me very strange that the Government were unable to respond in this matter when not so long ago we considered a Bill in your Lordships' House, in respect of which the noble Lord, Lord Windlesham, played a very prominent part, and which became the Industrial Relations Act. In that Act there is a section providing for what is called the Code of Practice. That Code is of considerable importance in respect of co-operation by both sides of industry, but it has little to do with the position of an individual of which Parliament is clearly the protector. Provision is made for the implementation of that important Code of Practice, after discussion, by Statutory Instrument and by the Affirmative Resolution procedure in both Houses of Parliament.
§ I hope that the House will look on this Amendment as part of the continuing battle by Parliament to exercise and retain the greatest possible power of control over the Executive. Those of us who have been Ministers know that this is something the Executive does not like to acknowledge or give to Parliament without a fight. Certainly the civil servants who help to administer the policy laid down by Ministers are even more bitter in this thought. I think it the duty of the Opposition, and of noble Lords on both sides of the House, to support the Amendment if they believe that these rules are of such importance in dealing with human rights and all the things which go to make life reasonable and decent for those people who live in our midst, and if they believe that Parliament should exercise the maximum control over matters of this sort.318
§ 3.5 p.m.
§ LORD WADE
My Lords, I think it might be convenient to consider Amendment No.24 with Amendment No.23. They deal with the same subject. As the noble Lord, Lord Shepherd, has put forward his views so fully and has dealt with the subject so well, I do not think it is necessary for me to speak at any length. It seems to me that there are really three points. First, the control of Parliament over these rules is essential because there is so much of importance in them. That has become apparent during the discussions on this Bill in Committee and on Report. So first we must be sure that there is adequate control.
Secondly, I would prefer the Affirmative Resolution of both Houses to what is commonly called the Negative Resolution procedure; in other words, the procedure for the annulment of an Order. But whether it is the Affirmative or the Negative Resolution procedure, the important thing is that there should be adequate Parliamentary control. The other point which has been raised—and I think that the noble Lord, Lord Windlesham, should explain it to the House—is the reason for the words, "statements of the rules "in the second line on page 4 of the Bill, in Clause 3(2). What exactly is the significance of the expression, "statements of the rules" as opposed to, "the rules"? In the Bill it is proposed thatThe Secretary of State shall from time to time"—that wording may be amended—lay before Parliament statements of the rules …Does that mean a draft, or is it a formal document? I think the practical question is this. If Parliament has approved a statement, will the Government have any power to alter the actual rules in between approving a statement and the next statement? There seems a rather important distinction between, "the rules" and, "statements of the rules."
The last question I would ask is purely on a matter of procedure as to these draft rules. What will happen if and when the Bill is put on the Statute Book? Will some document setting out the rules be laid before Parliament and require the approval of Parliament, or shall we be 319 deemed to have approved them approving the Bill?
§ LORD WINDLESHAM
My Lords, as the noble Lord, Lord Shepherd, reminded the House, Clause 3(2) provides for the immigration rules to be subject to the Negative Resolution procedure. As I understand it, the purpose of the Amendment is to provide that the initial sets of rules made under the Bill shall be subject to the Affirmative Resolution procedure, and that all subsequent sets of rules dealing with control after entry shall also be subject to the Affirmative Resolution procedure. Noble Lords will recall that when this question was before the Committee on July 22 we had a fairly full debate—at times I thought it was a slightly confused debate—on a manuscript Amendment tabled only that morning. Since then I am pleased to learn. from what the noble Lord, Lord Shepherd, has said, and the wording of the Amendment now before us, that the Opposition have accepted the practical argument to the effect that the rules for control on entry cannot reasonably be subject to the Affirmative Resolution procedure because of the need for the Secretary of State to have power to change these rules at short notice if any unforeseen gap in the immigration control comes to light.
The noble Lord, Lord Shepherd, has repeated this afternoon his general proposition that immigration rules should be subject to the Affirmative Resolution procedure. The first point to make is that at present the immigration rules are subject to no Parliamentary control at all. Parliament has not exercised control over the immigration rules under any previous Administration. When the Bill was first introduced, it was proposed that this position should be maintained, but in the course of the debates in another place the Home Secretary agreed that the rules should be made subject to the Negative Resolution procedure, and Clause 3 (2) was amended accordingly. Therefore, what the noble Lord said about Parliamentary relations with the Executive, about the Executive not liking to give way easily to Parliament on matters of this sort, has been the subject of a considerable amount of discussion; and the Home Secretary has conceded that the 320 rules should be made subject to Parliamentary control.
In the Home Secretary's view the Negative Resolution procedure is the most appropriate one. I can assure the House that he has given this matter his close personal attention since the Committee stage in this House, not only as a Minister but as a Parliamentarian also; but he remains of the opinion that the Negative Resolution procedure for all the rules, for control both on entry and after entry, is appropriate and is adequate. Indeed, the case that was advanced in Committee for the Affirmative Resolution procedure has now been weakened by the Government Amendment which was accepted by the House yesterday, providing that the rules will not in any way impair the freedom of entry and re-entry of people settled in the United Kingdom on the passing of the Bill, or of their wives and children. So that is now entrenched in Clause 1, in the general principles of the Bill itself.
This Amendment will also extend the Negative Resolution procedure to the first set of immigration rules made under the Bill. But we must remember that these rules have been before Parliament since shortly before the Bill was introduced, in February of this year, and they have been fully scrutinised and debated in the course of the Bill's passage through both Houses. The only substantial changes are in Part B of the rules for control after entry, and because of these changes a fresh draft was laid before Parliament and published as a White Paper (Cmnd.4792) on October 1. So there has already been, I think all noble Lords will agree, very full opportunity to scrutinise the initial rules which will take effect under the Bill; and as the final version will be subject to the Negative Resolution procedure this seems to us to give a fair degree of Parliamentary control.
As to the future sets of rules for control after entry, I am afraid that, despite the persuasive speech of the noble Lord, Lord Shepherd, the Government are not convinced that there is a strong case for applying the Affirmative Resolution procedure. It is true that changes in these rules for control after entry are unlikely to be needed so urgently as in the rules for control on entry, but the need cannot be ruled out absolutely. Further, the 321 case for the Affirmative Resolution procedure is inherently weaker for the rules relating to control after entry than for the rules for control on entry. The second set of rules sets out the principles on which the whole system of immigration control is based. For example, paragraph 25 of Cmnd.4606 lays down that the holders of work permits are to be admitted for a limited period in the first instance. The rules for control after entry, on the other hand, are in large measure consequential on those dealing with control on entry. For example, the rule determining whether a person already in the country may be allowed to stay here as a student is necessarily based on that governing the admission of people seeking entry as students; and similarly with other categories. I shall he moving shortly two Amendments to Clause 3(2) which will require the Secretary of State to present fresh statements of the rules as soon as he has changed the rules, and will also require him to lay fresh rules within 40 days of any such rules being disapproved. We believe that these changes will strengthen and clarify the provisions of the Bill and provide a proper measure of Parliamentary control.
The noble Lord, Lord Wade, asked me about the meaning of the phrase "statements of the rules", which appears in this clause. It has been the practice since 1962 to include in the statement the actual rules themselves; the statement of the rules is the full White Paper setting out the rules which is before the House now. The "statements of the rules" are the rules. So, one might ask: Why then do we not refer to the rules themselves rather than to a statement of the rules? The answer is that immigration rules are not statutory instruments. The draftsman has deliberately avoided using words such as "laying the rules before Parliament" because these words are associated with Parliamentary control of statutory instruments. The rules are not statutory instruments but rules of guidance for immigration officers issued by the Secretary of State. They are not statutory instruments and are not couched in the legal language of a statutory instrument. That is the reason for the reference to "statement of the rules".
I hope that I have said enough to persuade your Lordships that this is a matter 322 to which the Government have given close attention. The rules have not been previously subject to any form of Parliamentary control; nor would they have been had the Bill not been amended in the course of the debates in another place. The Home Secretary took the point of principle, so all that is between us now is not whether Parliament should or should not be able to approve the rules but the precise form of that approval, whether by the Affirmative or the Negative Resolution procedure. We have given this matter close thought, and on balance we believe that the Bill is better as drafted now.
§ 3.19 p.m.
§ LORD GARDINER
My Lords, it will not, I hope, be only on this side of the House that there will be disappointment at the statement the noble Lord has made. I am sure that many will feel that this is the most important Amendment left on the Report stage of this Bill. When we considered this question on Committee (it was first raised by the noble Earl, Lord Cork and Orrery, in an Amendment which 1 supported) I think it is no exaggeration to say that in all parts of the House concern was expressed about Parliamentary control over the rules. Only yesterday the Government's praises were, rightly, sung in all parts of the House, and laurels and confetti, well deserved, were bestowed, because they had changed their minds. I hope very much that they may still do so on this point.
If a lawyer or Parliamentarian were talking about English law and how it was made, I suppose that almost the first point he would make is that, apart from local legislation. the people in this country are governed by laws which must be made by Parliament, either directly or indirectly: directly by a Bill being passed through both Houses and receiving the Royal Assent, or indirectly, in so far as Parliament has allowed Ministers, by what we call delegated legislation, to make rules or regulations. But in every one of those cases the rules or regulations have to be brought before Parliament in one of two forms: either they have to meet with the affirmative approval of both Houses, or, if not that, then in minor cases any Member of either House may move to annul them. I think that any 323 lawyer or Parliamentarian would feel that he was telling the truth when he said that. And he would be telling the truth with one single exception; that is, that in relation to our immigration law the Home Secretary has always been allowed to make any rules that he likes, free from any Parliamentary control.
As your Lordships know, so far as our immigration laws, in particular, are concerned, two or three years ago the present noble and learned Lord the Lord Chancellor said that we had established "one of the less liberal and one of the most arbitrary systems of immigration law in the world—in the civilised world at any rate." I will stress "illiberal", because when I said that in Committee I was reported as attributing to the Lord Chancellor's statement that they were the most liberal in the world. This situation is very odd, because we are a tolerant and liberal country. How did it come about? As your Lordships may know, it is historical. Our basic immigration laws were passed late at night—and I always forget whether it was the 4th or 5th August,1914—on the outbreak of war. There had been scare stories in the Press about German spies; we were all told to look at strangers and report any suspicious conduct. I think it has been established since that there were in fact very few German spies, and that those there were were not much good. But when war has broken out, one can imagine how this sort of situation arises. This was the reason for the Draconian powers which Parliament gave to the Home Secretary—in effect, to do what he liked, free from Parliamentary control.
Even in those circumstances, however, Parliament imposed what was intended to be a protection to civil liberties, although it turned out to be the exact opposite: they said that this power would last only for twelve months, and that it would then be reviewed. The practical result of this has been that this old wartime emergency legislation has gone on being renewed by the passage of Expiring Laws Continuance Bills year after year. What could Parliament do? It could not produce a brand new code of its own; it could not leave the Home Secretary without immigration rules. So 324 there was nothing to be done except to renew the power every year; and this is why the present situation has gone on for so long. It is greatly to the credit of this Government that, at long last, after more than half a century, we have now got away from what has always been the bedrock of immigration; namely, the old emergency laws passed in 1914.
That is, in itself, of course, a great improvement. But there is still no Parliamentary control. There is no other case that I know of in English law in which a Minister can make rules and regulations which have the force of law without submitting them to the ordinary Parliamentary approval. It is now a code laid down in the Statutory Instruments Act 1946. as your Lordships know, that regulations are subject either to an Affirmative Resolution or to the Negative Resolution procedure. This Bill does nothing of the kind. There is a completely new invention under which there is to be put before Parliament, not the rules but a statement by the Secretary of State about the rules. The Bill says:The Secretary of State shall from time to time lay before Parliament statements of the rules, or any changes of the rules….Then it is provided that it shall be open to Parliament to disapprove, not the rules of course, because they are never laid before Parliament, but the statement. And if the statement is disapproved, the rules still remain; they still have the force of law, and Parliament is not entitled to annul them in any way. All that happens is that if the statement is disapproved,the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances and lay a further statement before Parliament accordingly.That is all that happens. This is quite unique and without precedent, and it is difficult to resist the conclusion that it is done in this form in order that it may appear to give Parliamentary control, when on careful examination it clearly does not.
There was even, I think, some misapprehension about this at one time in the mind of the Government, because on the Committee stage of the Bill the noble Lord, Lord Windlesham, on July 19, in 325 answer to a question by my noble friend Lord Janner, said this (col.702):The immigration rules will be subject to Parliamentary control. Therefore, unless Parliament agrees with him, there is no question of the Home Secretary of the day suddenly changing the rules.That of course is quite inaccurate: under the Bill as it is now drafted, it is open to the Home Secretary to change the rules at any time he likes, and the moment he changes them those changes have legal effect. All he must do is then to make a further statement to Parliament putting before it the changes he has made. So it is not accurate to say thatthere is no question of the Home Secretary of the day suddenly changing the rules.Then the noble Lord, Lord Windlesham, went on to say:If Parliament does agree with him, he can change the rules;But under the Bill as drafted, the Home Secretary does not go to Parliament at all if he wants to change the rules; he changes the rules, and then puts a statement before Parliament as to the changes he has made.
The noble Lord, Lord Windlesham, went on to say:… if Parliament does not agree with him, Parliament can negative the rules.There is nothing in the Bill, as drafted, which enables Parliament at any time to negative rules; all it can do is to disapprove the Home Secretary's statement. It is quite true that my right honourable friend Mr. Callaghan was in favour—and, for all I know, is still in favour—of not having the ordinary Parliamentary control over the rules. Of course, ever since, owing to war-time circumstances, we adopted the most illiberal immigration law in the civilised world, there has been a running fight between those who care for civil liberties and bureaucracy. Everybody likes power. This is not a Party question at all. Every Home Secretary, perhaps understandably, wants to hang on to what powers he has. I think that, in fairness to Mr. Callaghan, it should perhaps be recorded that the last Government did at least succeed in persuading the Home Secretary—what nobody had ever persuaded a Home Secretary before—that there ought to be 326 some form of appeal tribunal. Many of us had been pressing for this for years and years. So we have advanced, on the whole; and, as I have said, great credit is due to the Government that at least we have got rid of the old emergency legislation which has had to be carried forward year after year.
But there is no real reason, I suggest, why at least the original rules should not be subject to the ordinary procedure and be approved by Parliament. This business of never putting the rules before Parliament, but only the Home Secretary's statement, is not our ordinary form of Parliamentary control. After all, in the whole of our law, however important the subject, whether it is dealing with murder, treason or anything else, this is the only branch of our law in which rules and regulations, or any proposed change in them, can be made by a Minister, without their ever being put before Parliament. The Home Secretary makes the rules; they become law the moment he makes them; and under this new invention of the statement, which I believe—unless corrected by the noble Lord—to be quite unprecedented, all that can happen is that Parliament can disapprove the statement. In that event, the rules remain in force exactly as they were, and all that happens is that the Home Secretary can then come with another statement, which I suppose, in its turn, can be disapproved.
My Lords, with the greatest respect, so far as the original rules are concerned—these are matters which affect the lives of many people and a lot of the most important things are in the rules and not in the Bill—no really sensible reason has yet been given to us (though there is plenty of time) as to why the original rules cannot be subject to ordinary Parliamentary approval. So far as changes are concerned, I should have thought that the conditions laid down in the Amendment moved by my noble friend Lord Shepherd, for the reasons he explained, met the Government's original point.
Originally, the only reason given for all this was contained in a statement made on the Committee stage of the Bill, on July 21, when the noble Lord, Lord Windlesham, in reply to the noble Earl, 327 Lord Cork and Orrery, said, at column 1108 of the OFFICIAL REPORT:When, in another place, the suggestion was made that this did not go far enough and that the more appropriate form of Parliamentary control would be the Affirmative Resolution procedure, the Home Secretary explained that the Government did not feel able to agree to the Affirmative Resolution procedure's applying to the rules since this would mean that they could not be changed promptly if the need for change should arise when Parliament was in Recess.Nobody is opposing the Home Secretary's making changes. That point, I should have thought, is amply met in the proposal now before the House. But that is no reason for our not having the ordinary degree of Parliamentary control over the original rules by the ordinary Affirmative Resolution procedure.
§ I am sorry to have taken up so much time, but I speak as one who is interested in our Constitution and our laws and if the Parliamentarians do not act to protect the powers of Parliament over Ministers, of course nobody else will. I very much hope that the Government will change their minds on this point, perhaps before the Third Reading of the Bill, since the noble Lord, Lord Windlesham, is always so patient and courteous and the Government showed only yesterday that they are able to be persuaded to change their minds if a sufficient number of Members in different parts of the House express their views.
§ 3.33 p.m.
§ On Question, Whether the said Amendment (No.23) shall be agreed to?
§ Their Lordships divided: Contents,76; Not-Contents,104.329
|Airedale, L.||Energlyn, L.||Nunburnholme, L.|
|Amherst, E.||Evans of Hungershall, L.||O'Hagan, L.|
|Amulree, L.||Faringdon, L.||Pargiter, L.|
|Archibald, L.||Fiske, L.||Platt, L.|
|Ardwick, L.||Foot, L.||Ponsonby of Shulbrede, L|
|Avebury, L.||Gardiner, L.||Popplewell, L.|
|Bacon, Bs.||Garnsworthy, L.||Redcliffe-Maud, L.|
|Balogh, L.||Greenway, L.||Ritchie-Calder, L.|
|Beaumont of Whitley, L.||Greenwood of Rossendale, L.||Royle, L.|
|Beswick, L.||Henderson, L.||Sainsbury, L.|
|Bristol, L. Bp.||Henley, L.||St. Davids, V.|
|Brockway, L.||Hilton of Upton, L. [Teller.]||Serota, Bs.|
|Brown, L.||Hirshfield, L.||Shackleton, L.|
|Buckinghamshire, E.||Hoy, L.||Shepherd, L.|
|Burgh, L.||Hughes, L.||Silkin, L.|
|Burton of Coventry, Bs.||Jacques, L.||Simon, V.|
|Byers, L.||Janner, L.||Strabolgi, L. [Teller.]|
|Carnock, L.||Kilbracken, L.||Summerskill, Bs.|
|Chalfont, L.||Leatherland, L.||Taylor of Mansfield, L.|
|Champion, L.||Lee of Asheridge, Bs.||Wade, L.|
|Chorley, L.||Listowel, E.||White, Bs.|
|Clwyd, L.||Llewelyn-Davies of Hastoe, Bs.||Winterbottom, L.|
|Coventry, L. Bp.||McLeavy, L.||Wootton of Abinger, Bs.|
|Crook, L.||Maelor, L.||Wright of Ashton under Lyne, L.|
|Donaldson of Kir. gsbridge, L.||Milford, L.|
|Douglass of Cleveland, L.||Moyle, L.|
|Aberdare, L.||Brecon, L.||Digby, L.|
|Abinger, L.||Brooke of Ystradfellte, Bs.||Drumalbyn, L.|
|Ailwyn, L.||Caccia, L.||Dudley, E.|
|Alexander of Tunis, E.||Camoys, L.||Eccles, V.|
|Alport, L.||Carrington, L.||Effingham, E.|
|Amherst of Hackney, L.||Conesford, L.||Enniskillen, E.|
|Amory, V.||Cork and Orrery, E.||Essex. E.|
|Auckland, L.||Cowley, E.||Exeter, M.|
|Balerno, L.||Craigavon, V.||Falkland, V.|
|Barnby, L.||Crathorne, L.||Ferrers, E.|
|Belhaven and Stenton, L.||Cullen of Ashbourne, L.||Fortescue, E.|
|Belstead, L.||Daventrv, V.||Fraser of Lonsdale, L.|
|Berkeley, Bs.||De La Warr, E.||Garner, L.|
|Blackford, L.||Denham, L. [Teller.]||Glasgow, E.|
|Brabazon of Tara, L.||Derwent, L.||Goschen, V. [Teller.]|
|Gridley, L.||Lansdowne, M.||Rockley, L.|
|Grimston of Westbury, L,||Lauderdale, E.||Sackville, L.|
|Hacking, L.||Long, V.||St. Aldwyn, E.|
|Hailcs, L.||Loudoun, C.||St. Helens, L.|
|Hankey, L.||Lyell, L.||St. Just, L.|
|Harvey of Prestbury, L.||Mac An drew, L.||Sandford, L.|
|Harvey of Tasburgh, L.||Mersey, V.||Selkirk, E.|
|Hatherton, L.||Milverton, L.||Sinclair of Cleeve, L.|
|Hawke, L.||Monckton of Brenchley, V.||Stonehaven, V.|
|Hives, L.||Morrison, L.||Strang, L.|
|Hood, V.||Mowbray and Stourton, L.||Strange of Knokin, Bs.|
|Howard of Glossop, L.||Moyne, L.||Strathclyde, L.|
|Hylton-Foster, Bs.||Northchurch, Bs.||Tenby, V.|
|Ilford, L.||Oakshott, L.||Teynham, L.|
|Inglewood, L.||Penrhyn, L.||Tweedsmuir, L.|
|Ironside, L.||Perth, E.||Tweedsmuir of Belhelvie, Bs|
|Jellicoe, E. (L. Pr/vy Sea/.)||Poltimore, L.||Vivian, L.|
|Jessel, L.||Rankeillour, L.||Windlesham, L.|
|Kemsley, V.||Roberthall, L.||Wolverton, L.|
|Kindersley, L.||Rochdale, V.|
On Question, Amendment agreed to.
§ 3.44 p.m.
LORD WINDLESHAM moved Amendment No.25:
Page 4, line 1, after second ("time") insert ("(and as soon as may be)")
§ The noble Lord said: I beg to move Amendment No.25 and with it Amendment No.28. Both Amendments relate to the Parliamentary control of the immigration rules. At the Committee stage, while not accepting the general arguments of principle that the control should be affirmative rather than negative, I undertook to look again at the wording of Clause 3(2) to see whether or not it could be improved in the light of the comments made in the course of the debate. We have done that and Amendments Nos.25 and 28 are the result of our reconsideration.
§ Amendment No.25 makes it the duty of the Secretary of State to lay a statement before Parliament as soon as may be after he lays down or changes the rules. This is to meet a point which was raised by the noble and learned Lord, Lord Gardiner, in Committee, when he said that the present wording seemed to him to be open-ended and provided no proper time limit. The effect of Amendment No.28 is that where a statement laid before Parliament under Clause 3(2) is disapproved by a Resolution of either House, it then becomes the duty of the Secretary of State to lay a further statement within 40 sitting days. The noble and learned Lord, Lord Gardiner, objected to the fact that disapproval by either House of Parliament would not in 330 itself be sufficient to annul the rules. The noble and learned Lord made the same point again in his speech just now. The Government did not feel able to go the whole way to meet noble Lords opposite on this point. In the Government's view that would not be consistent with ensuring that there would, in any event, always be immigration rules in force. But the Amendment before the House ensures, so far as any statutory provision can, that the Home Secretary cannot ignore the views of Parliament; he is given a specific period within which he must submit a further statement for the approval of both Houses. I pointed out at the Committee stage that this further statement, being in itself a statement, is subject to the Negative Resolution procedure, so the process can be repeated endlessly until Parliamentary approval has been obtained.
§ There was some misunderstanding in the earlier debate about the word "statement The noble and learned Lord, Lord Gardiner, made great play with the fact that the Home secretary is required to lay a statement rather than to lay the rules. The phrase which appears in the Bill is "statements of the rules". It is not a statement about the rules, or anything as vague as that. It has been the practice since 1962 to lay before Parliament the precise text of the immigration rules, or the instructions to immigration officers, and I can confirm that the Government have no intention of departing from this practice, nor do we believe that any such departure would be accepted by Parliament. The statement of the rules is the actual text of the immigration rules and the instructions to immigration 331 officers. The difference in future will be that either House of Parliament can, under this procedure, negative those rules if it wishes to do so. Previously they were published as White Papers and were not subject either to the Affirmative or to the Negative resolution procedure. In future they will be subject to the procedure outlined in Clause 3(2). I beg to move.
§ LORD GARDINER
My Lords, these were two points raised in Committee on this novel and extraordinary procedure which if it was to obtain at all ought to be corrected. We are grateful to the Government for having accepted corrections on these points. They are both points on which there will at least be some time limit on the statement to be made by the Home Secretary. I do not wish to return to the previous argument, but I am still hoping that the Government will be good enough to give consideration to the constitutional point that is involved.
§ LORD WADE
My Lords, I welcome the words of the noble Lord, Lord Windlesham. He has referred to the statement of the rules (I hope I am not going back to the previous issue) and I think some Members of this House are in a state of uncertainty as to what is the practical difference betwen the rules and the statement of the rules. That is what some of us do not fully understand.
§ LORD WINDLESHAM
My Lords, if, as the mover of these Amendments, I may speak a second time, I would point out that I mentioned this matter previously. Let me now repeat what I said: the reason why the phrase "statements of the rules" is used is that the rules are not Statutory Instruments. If the draftsman had said that these rules were to be subject to Parliamentary control, this would imply, by the conventions of drafting, that they would be or might be taken to be Statutory Instruments. The question arises: why are they not Statutory Instruments in that case? May I give your Lordships some further information on this subject, if it is of interest and relevant at this point. This is a question which has been considered from time to time in the past, and it is as a matter of considered policy that the Government 332 are adhering to the practice of the previous Government and are not converting the immigration rules into Statutory Instruments. The reason for this is that the immigration rules are not in substance appropriate to be issued in the form of Statutory Instruments. They are not precise legal documents, inflexible in their application; they are instead policy documents which in some respects contain general statements of principle or general rules for the guidance of immigration officers or for Home Office officials.
It is also worth bearing in mind that immigration appeals fall to be determined in accordance with the immigration rules, and in our view it would be a mistake to aim at the precision of Statutory Instruments, since this would mean that on appeal the immigration appeal authorities would have to attempt to interpret them as though they were interpreting an Act of Parliament. The rules are deliberately cast in a looser form, making use of such words as "normally", so that a good deal can be left to the discretion and common sense both of the officers administering the system and of the immigration appeal authorities. This flexibility leaves room to meet the circumstances of particular cases without straining the language of the documents. I do not think it is desirable in this field, as in many others, to tie things down so rigidly that a flexibile and common-sense approach is precluded.
The noble Lord, Lord Wade, asked me a second question in his earlier intervention, which I must apologise for not answering before. He said that the three White Papers had been before Parliament in the course of the debates on the Bill: what would be the procedure once the Bill had become law? I can confirm that the draft rules which have been before Parliament will be laid again once the Bill has become an Act of Parliament, amended in various respects in accordance with the various assurances that have been given. They will then lie before each House of Parliament and the procedure outlined in this clause will take effect.
§ 3.53 p.m.
LORD WADE moved Amendment No.26:
Page 4, leave out lines 11 and 12 and insert ("but such rules shall not be dependent
upon the citizenship or nationality of the persons or classes of persons concerned.")
The noble Lord said: My Lords, I move Amendment No.26 in order that the words in the last two lines of subsection (2) should not go by default. They call for explanation or further explanation. The words in the Bill are as follows:
(and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
The words in the Amendment are:
but such rules shall not be dependent upon the citizenship or nationality of the persons or classes of persons concerned.
I realise that if my Amendment were accepted that might go to the root of the Bill, but it should be pointed out that on the face of it the words in the Bill contravene the principle of no discrimination. They clearly imply discrimination and therefore some explanation as to why there must be this discrimination should be put to the House. I beg to move.
§ THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (LORD ABERDARE)
My Lords, I agree with the noble Lord, Lord Wade, that these words do not look very pleasant in the Bill, but in fact there are important reasons why they are there and there would be great practical difficulties if we were to accept the Amendment. The rules do discriminate in certain ways. They favour Commonwealth citizens as opposed to foreign nationals; for example, in paragraph 10 of Cmnd.4610 on working holidaymakers. Here is a place where they discriminate in favour of Commonwealth citizens as opposed to aliens, and this kind of discrimination, which is in the Bill, would have to cease if we accepted this Amendment. Perhaps the most cogent reason I can put to the noble Lord for not accepting his Amendment is that, if we did, we should not be able to change the rules as we intend to do, so that Commonwealth citizens do not have to register with the police. This is in itself a discrimination in favour of Cornmonwealth citizens and the Amendment would prevent us from making this change.
Another example is the discrimination in Cmnd.4606, paragraph 10, according to nationality between those aliens who are subject to the visa requirement and 334 those who are not subject to it. Just another further example: when we enter the European Economic Community it might well again be necessary to make different rules for people of different nationalities. So I suggest to the noble Lord that in effect discrimination of this kind is required and without it it would be very difficult to make rules of the kind which both he and I, I think, support.
§ LORD O'HAGAN
My Lords, may I ask the noble Lord, Lord Aberdare, what he meant when he said that if we enter the Common Market we might have to make different rules for people of different nationalities? I did not quite follow that.
§ LORD ABERDARE
My Lords, if I may speak again, I meant simply that we should be taking on different obligations. According to the terms on which we enter, we might have to make different rules for nationals of E. E. C. countries.
§ Amendment, by leave, withdrawn.
§ LORD WINDLESHAM
My Lords, Amendment No.28 is consequential to Amendment No.25. I explained both Amendments at the same time. I beg to move.
Page 4, leave out line 21 and insert ("so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).")—(Lord Windlesham.)
§ 3.58 p.m.
LORD KILBRACKEN moved Amendment No.29:
Page 4, line 37, leave out ("(whether or not he lands there)").
§ The noble Lord said: My Lords, at the Committee stage of the Bill I put down an Amendment which would have had the effect of deleting Clause 3(4). In my unavoidable absence it was most 335 eloquently moved by my noble friend Lord Brockway (and may I add my voice to the expressions that have already been made: I am glad to see him back with us again) and it received quite considerable support, particularly from my noble friend Lord Donaldson of Kingsbridge. Amendments Nos.29 and 30, also in my name, refer to this subsection. The first refers to one specific point and the other to the general operation of the subsection, and indeed that Amendment would have the same effect of deleting the whole subsection. I should like to take these two matters completely separately.
Perhaps your Lordships will remember what the subsection was about. It states:
A person's leave to enter or remain in the United Kingdom"—
whether it is a limited leave or an indefinite leave—
shall lapse on his going to a country or territory outside the common travel area"—
that is, any country other than the United Kingdom and the Republic of Ireland. Then it adds:
(whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter …
§ In the Committee stage there was a certain amount of discussion on the meaning of those words, and your Lordships will see that it will be appropriate-to consider that point when I come to move the next Amendment. For the time being, I am considering whether the words "whether or not he lands there" are justified. What, one asks, are they there for, and what are the Government concerned to prevent? It seems extraordinary that an immigrant who has been given indefinite leave to live in this country should forfeit that leave if he goes to Paris for the weekend although he is perfectly free to go to Dublin for three months. If he goes to a country outside the common travel area he is not necessarily able to return to this country but has to apply for leave again. But that is not enough. He loses his leave to be in this country whether or not he lands in the country outside the common travel area. How many of us have arrived at a country without landing in it? How can this happen and what 336 would be the application of this rule? Does it mean that an immigrant who goes on a cruise and whose ship puts in at various islands in the Canary Islands or in Algiers, even though he stays on board and does not go ashore, will still be disbarred when he returns to this country? What will be the position of an immigrant on a perfectly legitimate flight to the Channel Islands whose plane encounters bad weather and has to fly over France? He has been to France and not landed there, but because his aircraft has overflown France, which is a country outside the common travel area, he will be subject to restrictions on his return. I cannot think of any circumstances in which this would be necessary and for that reason I am proposing that these words should be deleted. I beg to move.
§ LORD DENHAM
My Lords, I think I can satisfy the noble Lord, Lord Kilbracken, in regard to his worries over this point. These words are needed because there might be occasions when a person goes to another country but is refused permission to enter and is therefore not allowed to disembark from the ship or aircraft. In such a case it is right that his leave to enter or to remain in the United Kingdom should lapse, in exactly the same way as it would have done had he actually gone into the other country. Indeed there is possibly very much more reason why it should lapse in such a case. Because of this he may well no longer have a valid claim to be readmitted to this country. May I give the noble Lord an example. There could be a passenger travelling from his own country to France by way of Britain. If he is allowed to enter this country as a visitor for a few days while in transit but is then refused permission to enter France he ought not to be able to reenter this country without a further examination by an immigration officer, when his original intentions have been frustrated and he may well be seeking to come back on a completely different basis.
In regard to the point made by the noble Lord about an aircraft flying over France, say, on the way to the Channel Islands, I can set his mind at rest over that. In those circumstances the passenger could certainly not, in the ordinary meaning of the words, be said to have gone 337 to France. There is no provision in the Bill, and I am advised there is no rule of law which would give these words a different meaning so as to produce the result which the noble Lord fears. I hope that this explanation will have satisfied the rather limited worry of the noble Lord in regard to this matter and that he will not press the Amendment.
§ LORD DONALDSON OF KINGS-BRIDGE
My Lords, some years ago in the New Yorker there used to be little comments headed "Department of complete confusion". It seems to me we have reached that stage now. I did not understand the point of this phrase within the brackets when the noble Lord, Lord Kilbracken, moved his Amendment, and the explanation has left me totally puzzled. The noble Lord, Lord Denham, was kind enough to write to me on this point after the Committee stage and he explained that the reason for what seemed to us to be an absolutely irrational limitation put on the potential passenger in this country was that if he went abroad for a period his conditions might have changed very seriously when he came back and therefore he would have to be looked at again. I objected in Committee, although I did not repeat it in my reply to the noble Lord, that the same applies if a man lives in Norwich and goes to London. You are in fact treating this man, who is a potential patrial, as somebody without the same right as his colleagues, which we object to. So if he is going by boat or aeroplane to another country and he is not allowed in, the only condition, which in my opinion totally fails but which was put forward as justifying this, disappears altogether. The fact that he comes here as a visitor and is then refused leave to land in France does not change anything. If he comes here as a visitor he is admitted as a visitor, and the fact that the French do not want him has nothing to do with us. I really cannot follow this argument at all and I hope the House will give the noble Lord leave to speak again in an effort to make it a little clearer.
§ LORD DENHAM
My Lords, if the House will accept the invitation of the noble Lord, Lord Donaldson, and will give me leave to speak again, I hope your Lordships will see my point in regard 338 to this matter. The noble Lord, Lord Donaldson, objects to this clause altogether. He has made that abundantly clear both in the Committee stage and now at Report stage. He objects to a man's going abroad to France for a weekend and then, when he comes back, having to apply for leave again. Let us accept for a moment that the noble Lord objects to that. I should have thought that there would be much more cause to review the man's leave if he had been refused entry to France. Obviously if he is refused entry it must be for some good reason; obviously when he comes back to this country we should look at that reason and decide whether it appertains so far as this country is concerned. But what one also has to consider is that when the passenger comes to this country for the first time he may say, "I am only coming here to spend the night at the Skyways Hotel outside London Airport, and then I am going to fly on to France". In those circumstances the authorities will not look very closely into his reasons for coming, but if he then goes off to France and is refused leave there, and he says, "Oh well, I have another five months and 29 days of my leave; I shall go back and spend it in the United Kingdom", these are completely different circumstances.
§ LORD DONALDSON OF KINGS-BRIDGE
My Lords, I will ask my question after the noble Lord, Lord Kilbracken, has spoken again.
§ LORD KILBRACKEN
My Lords, I must admit that I completely agree with all that the noble Lord, Lord Donaldson, has said. I do not find the answer given by the noble Lord, Lord Denham, at all satisfactory. He has referred to the case of the alien, or indeed the Commonwealth citizen, who arrives in this country, says he is only going to spend a couple of nights here at London Airport and is given leave to enter for six months, and in consequence his credentials are not very carefully examined. If that is the case, does it not at once open the door to anybody who wants to come in for six months? He just comes along and tells the immigration authorities that he is only staying for a couple of days and then going on to another country, but then he stays for six months. That would let practically anyone in. On the 339 particular point I am moving, the question of returning without having landed in the country concerned, he said that there might be the case where someone is refused entry to a country by the immigration authorities; but I do not see that that is anything to do with us. We have our immigration authorities; they consider his credentials and whether he should be allowed in or not. Other countries might have quite different rules. It seems to me quite absurd that a person without having landed in a foreign country might be refused readmission to this. In view of the unsatisfactory nature of the noble Lord's reply, I do not feel inclined to withdraw the Amendment.
§ On Question, Amendment negatived.
§ 4.12 p.m.
LORD KILBRACKEN moved Amendment No.30:
Page 4, line 39, leave out from ("Kingdom") to ("but") in line 40.
The noble Lord said: My Lords, we have already to a certain extent considered this matter because it is a further Amendment that I am proposing to this same subsection. This was the language which caused a considerable amount of confusion when the Amendment moved on Committee stage by my noble friend Lord Brockway to delete this subsection was considered. Your Lordships will see from the subsection that:
A person's leave to … remain in the United Kingdom shall lapse on going to a country … outside the common travel area … unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; … ".
At the Committee stage the noble Lord, Lord Wade, asked what on earth those circumstances were in which he is not required to obtain leave to enter. In his reply Lord Denham said that these circumstances were laid out in Clause 8(2) and (4); I think he should have said (3) and (4).
§ If your Lordships will look at those subsections of Clause 8, you will see that they refer to members of diplomatic missions, members of the Armed Forces and so on. Clause 8 lays down that such people are completely exempt from the operation of the Act and, because they are exempt from the operation of the Act, 340 therefore they do not require leave to enter. So I do not see how the argument of the noble Lord, Lord Denham, can be applied, because since these people do not require leave to enter the country they cannot be persons whose leave is liable to lapse under subsection (4). I cannot think of anyone of whom under this Act it may be said that there are circumstances in which he is not required to obtain leave to enter. There may be one or two examples; the noble Lord. Lord Denham, if he is replying, may, under some clause of the Act that I have not yet discovered, be able to come up with one or two very obscure examples of people who are not required to obtain leave to enter the country once they have gone out.
§ But even if that is so, it means that for the vast bulk of immigrants in this country (by "immigrants" I mean here those who are here with an indefinite or limited leave to enter or remain in the country) if they leave the country, even for a weekend, if they go to the South of France for a week's holiday, or to Madrid on a business trip, under the subsection their leave has lapsed. We had assurances on the Committee stage that it would be in the rules, or there would be provision, that when such a person came back to this country he would have his leave renewed. I do not think that is good enough. I do not like things being in the rules, particularly when they may be very vaguely expressed. Surely any immigrant will be bound to feel very great insecurity—it does not matter whether he is black, or white or yellow—if he knows that should he go to the Continent of Europe, or leave the common travel area for however short a time, he may not be allowed back in again.
§ I know there is something similar in existing immigration rules. I have indirect experience of it myself. An American citizen went to Ibiza in the Balearics for a week in connection with some business I was involved in, and when he got back from this week in Ibiza, having taken £ 40 or £ 50 with him and spent that money while he was there—an easy thing to do in Ibiza—he had great trouble in getting back into the country. In fact I had a 'phone call at three o'clock in the morning from London Airport to inquire whether I knew this man and was he all right. 341 This was a man who had been here a year or two. I hesitate to mention that he was black. I do not think all United States citizens when they arrive back in this country from Ibiza have to make telephone calls at three o'clock in the morning. I mention in passing that his skin was black. I think it is absurd that a person living and working here, who goes away for a week or ten days on holiday or on business should be in any doubt that he will be allowed back.
The noble Lord, Lord Denham, mentioned the possibility that he might go to Monte Carlo and lose all his money and would not be in a position to support himself when he returned. Well, he can do that on any night at Crockfords in London. The further absurdity is that under Clause 9(2)(b) he can go and do it in Dublin. If he goes to the Curragh and loses all his money on the Irish Sweeps Derby he can come straight back and is not subject to any control at all. I do not think this provision should be in the Bill. If my Amendment were accepted the subsection would read that his leave to remain in the United Kingdom
…. shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom.
That is what I propose, and I hope your Lordships will agree. I beg to move.
§ LORD FOOT
My Lords, I should like to support the noble Lord's Amendment on a rather narrower ground; namely, that in my view this clause as it stands is absolutely meaningless. First of all, I hope the noble Lord will carry this Amendment to a Division. If the Government are satisfied that these words are wholly unsatisfactory I hope they will not make use of their automatic majority in order to put on the Statute Book something which does not mean anything. I say that because this clause attempts to define the circumstances in which on going abroad a person loses his right to enter or remain in the United Kingdom. It reads in this way:A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom "—342 I pause there—in circumstances in which he is not required to obtain leave to enter …".The whole question here is whether he is entitled; whether he has leave to enter. The words which the noble Lord wants to omit are words which beg the whole question posed by the clause. I can see no other interpretation of it than that. I think that it just besmirches the Statute Book if words are put on it which are as ambiguous and as meaningless as these words appear to me to be.
§ LORD DONALDSON OF KINGS-BRIDGE
My Lords, I must very briefly support my noble friend. I agree with the noble Lord, Lord Foot, that the clause as it stands, and certainly as amended, is meaningless. I object to it, however, because I know very well what the meaning is meant to be. This Bill really concerns citizens of the United Kingdom and Colonies who come to this country and wish to acquire a right of abode. The rules have been laid down, and we know that these people have to get a work permit; work satisfactorily for a year and then get a proper reference from their employer. If they get that reference they can get the permit extended, and after four years they can register, with the authority of the Home Secretary, and get a right of abode and become patrials.
We will not go into our objections to the whole procedure at this stage, but there is being added here an additional disadvantage to this already disadvantageous position. This man who has worked here for three years—perhaps as a doctor, an insurance manager, or a tally clerk in a factory—is in a completely different position from his colleagues, from his peers. If a group of people in the factory say, "Let us have a binge and go to Monte Carlo; we have had some very good overtime ", he has to say," I dare not do that. I am not sure that I can get back again. We shall have to be content with Crockford's—"which is more exclusive anyway.
It seems to me that there is no serious justification for this Amendment. If a spy comes here with a lot of faked references, and he tries to get into Poland by sea (which is quite difficult to do) and is sent hack here, if you find something against him, then clearly you can raise this on its own merits, and not simply 343 because he has come back and is in a. different position from other people. Anybody who is suspected on security grounds is subject to this kind of investigation when they arrive in this country. I object to treating this man in a different way from his neighbours. My noble friend's Amendment makes sufficient nonsense of this already nonsensical clause to make it nugatory, and so I support it wholeheartedly.
§ VISCOUNT SIMON
My Lords, I have a great deal of sympathy for what I know lies behind the arguments that noble Lords have put forward in support of this Amendment, but I wonder whether they will agree that when they travel abroad and enter a country they pass the Immigration Control. If they leave again—perhaps for a visit to Monte Carlo, or for any other purpose—when they come back they have to pass through the Immigration Control again. I do not see anything very terrible about this; it is the normal practice when one travels abroad.
§ LORD BROCKWAY
My Lords, I wish to say only a few sentences. I moved these Amendments on behalf of the noble Lord, Lord Kilbracken, originally. I also raised the same point in regard to deportations. The Minister has Amendments down to Clause 7. and which deal with a similar point. I would only ask him whether, in view of the confusion which I am sure there is in all parts of the House on this issue, he will not consider, before Third Reading, introducing Amendments similar to those which he has introduced to Clause 7.
§ 4.25 p.m.
§ LORD DENHAM
My Lords, of course I am always willing to consider anything that the noble Lord, Lord Brockway, has said. In dealing with what has been said by your Lordships this afternoon, we must distinguish between two different lines of attack. The first is the suggestion made by the noble Lord, Lord Kilbracken, and very much emphasised by the noble Lord, Lord Foot, that this subsection does not make sense. The second point, which I think the noble Lord, Lord Donaldson of Kingsbridge, supported more, was that what sense it did make was objectionable. Perhaps, to begin with, I may deal with the first suggestion.
344 A person's leave to enter or remain in the United Kingdom is to lapse unless he comes back in certain circumstances. The circumstances are that he is in the position where he does not need to apply for leave. If he does not need to apply for leave the question is asked: why does that leave, which he has not needed to apply for, and therefore presumably has not got, not lapse? I agree that it sounds very difficult. However, the position is that there are a certain number of people who come to this country, either as students or holidaymakers, who may come here for six months or two years, and it is possible that, during his long vacation, a student might take a job in his Embassy, and in that case, during the time he holds that position does not need leave to enter the country. If, while he was working for that Embassy, he flew back for a weekend to his own country, although he would not at that time need leave to come back, if it were not for the proviso in this subsection the leave that he had originally as a student would lapse. I hope I have made that clear. That is the first point.
The other point is very much wider. It is the question of what this subsection means. The noble Lord, Lord Donaldson of Kingsbridge, has admitted that he knows what it means but does not like the meaning. I am afraid I cannot do more than repeat, very shortly at this stage, the reasons why we feel that this subsection should remain in this Bill. In my most optimistic moments I cannot see myself convincing the noble Lord, Lord Donaldson, but I will try to convince the rest of your Lordships. First, this is not some monstrous new provision that we have inserted in this Bill; there is a similar provision in the Commonwealth Immigrants Act 1962 and in the Aliens Order 1953. So far as I can find out, it has been working perfectly well. Nobody has been unduly hampered by it, even if it means ringing up the noble Lord, Lord Kilbracken, in the middle of the night. It does seem to work; and it is, in our view, necessary that it should be carried forward into this new legislation. The need for it is most evident in relation to a person from overseas who has only just been passing through the United Kingdom. In other words, he came here for one purpose, then went away, and quite possibly on return 345 to this country might have come for a different purpose—like the man who goes abroad, having come here originally as a student, and finds that he cannot come back for this purpose because he has lost all his money, but must stay and try to get a job.
The noble Lord, Lord Donaldson, said that this could very well happen if someone went from Birmingham to Bermondsey, and of course that is absolutely true; but, obviously, it would be impossible to make provision in this Bill to review cases of people travelling within the country. However, it is possible to look at a case again when somebody comes back from abroad, in order to see that the conditions are exactly the same. But I should like to make it absolutely clear that when a Commonwealth citizen who has been admitted with a work permit goes on holiday, the permit itself does not lapse if he goes abroad, although the leave to enter does lapse. He has to apply for leave to re-enter this country, but his work permit would guarantee his re-entry unless there were exceptional reasons. We are convinced that this provision is necessary and I hope that most of your Lordships will agree that it is necessary. I do not think I can usefully say any more at this stage.
§ LoRD KILBRACKEN
My Lords, I do not want to take up any more of your Lordships' time. I have listened to the noble Lord, Lord Denham, and I have been completely unconvinced by his arguments. I am grateful for the support that has been given to me by my noble friends. I feel that this is an objectionable provision.
§ On Question, Amendment negatived.
§ 4.32 p.m.
LORD BROCKWAY moved Amendment No.31:
Page 5, line 2, leave out ("public good") and insert ("national security").
§ The noble Lord said: My Lords, subsection (5) of Clause 3 sets out three grounds on which a non-patrial may be deported. The first ground is if he does not maintain the conditions of his entry; the second ground is if the Secretary of State deems his deportation to be conducive to the public good; and the third ground is if another person to whose family he belongs is or has been ordered 346 to be deported. The Amendment which I am now moving refers to the second of those grounds, and the third ground will arise on the next Amendment No.32.
§ My proposal is that instead of the words "public good" there should be inserted the words "national security". This matter was raised in Committee stage, and the Minister then gave three categories of persons who might come under the definition of not being conducive to the public good. The first category was the rare cases on political grounds; the second was persons who were the subject of confidential reports from Interpol or intelligence services; and the third, which the Minister mentioned earlier in his speech, was drug traffickers or gambling racketeers. In the case of the small number who would be liable to be deported on political grounds, I would urge very strongly that these should be limited to those who are a danger to national security. One of the British traditions which we cherish is free discussion of political issues, and I should not like someone who was raising political issues in this country to be liable to be deported unless those issues were a danger to national security.
§ I think the same argument applies to information supplied confidentially by Interpol or the intelligence services. Interpol might report someone who had a criminal record in another country, but when persons who have committed crimes pass from one territory to another and escape trial there is already, in extreme cases, a power of extradition to the country from which they come. Again, I want to suggest that we ought not here to go further than cover those cases where national security is threatened. Obviously, if Interpol or the intelligence services reported that someone with a bad record had come to this country the police would keep him under observation. But I would not say that if someone had committed a crime in another country, or had done something which was displeasing to the intelligence services, he should on those grounds, without a repetition of those offences, be liable to deportation from this country unless he was a danger to national security.
In the case of drug traffickers or gambling racketeers, I suggest that if there is
insufficient evidence to bring their cases before a court it is too much to say that the Home Secretary should be given the power to deport them without trial. Behind all these issues is the desire to prevent the establishment in this country of an authoritarian State. To give to the Home Secretary the power to decide that in those three categories he will be able to demand deportation, seems to me a repudiation of the liberties and freedoms of which our country is proud. Finally, may I make this point? The phrase "conducive to the public good" is extremely vague. Ought it really to be in an Act of Parliament, as it will be here? Does it not open the possibility of the Home Secretary's coming to a decision under this language which is not concrete? May I ask this of the noble Lord, Lord Windlesham? He proposes in Amendment No.49 to use the phrase that exclusion is justified when it is
conducive to the public good as being in the interests of national security".
I welcome that phrase and that compromise, and I express the hope that the Minister will be able to use that phrase in the subsection about which I am speaking. My Lords, I beg to move.
§ 4.40 p.m.
§ LORD WINDLESHAM
My Lords, as the noble Lord, Lord Brockway, said, we had a long debate on this matter in Committee. On that occasion the Amendment was moved by the noble Lord, Lord Wade. In answering that debate I said that the number of cases in which this power had been used in the past was very few. Incidentally, we are of course talking about a power which has existed for many years so far as aliens are concerned. The words "conducive to the public good" have a well-defined meaning. Successive Home Secretaries have had to interpret this power, and a considerable body of precedent has been built up over half a century or more. The Bill extends this power to Commonwealth citizens. It is quite true that this is an extension: previously it applied to aliens, but not to Commonwealth citizens. In Committee the noble Lord, Lord Brooke of Cumnor, described from his own experience, when Rockwell was deported, his feelings of relief when he 348 found that Rockwell was a United States citizen and not a Canadian, and that somebody who threatens the interests of this country can be deported if he conies, alas!, from a Commonwealth or a non-Commonwealth country. I said then that the number of cases in which there had been deportations on these grounds had been very few in recent years—there have been about a dozen a year for aliens—and I said that in the future the power will continue to be exercised with the same restraint.
I also made the point (which the noble Lord, Lord Brockway, overlooked in what he has just said) that nearly all of those deported under this power have been convicted offenders. These are people who have been convicted of offences in the criminal courts. Virtually the whole lot fell into this category, and there is no reason to suppose that there will be any change in this pattern. These are offences where no question of national security arises; and I think your Lordships would feel that it would be wrong to deprive the Home Secretary of that particular power. That the occasional case of a different or special nature arises outside the considerations of public security is, of course, what is troubling the noble Lord, Lord Brockway; he has made this clear on previous occasions. But this is something that is recognised also in other systems. For example, member countries of the European Economic Community have as one of the grounds, both for deportation and for exclusion of entry initially, what is calledordre publique—public order. That is quite separate from public security, which is a distinct head of policy—public health, public security and public order. Public order is interpreted broadly in the way in which we have interpreted what is or is not conducive to the public good.
My Lords, there are considerable safeguards in this system. Every deportation order has to be signed personally by the Secretary of State. This is not a power exercised on his behalf by officials or by anybody else: the deportation order must be considered and signed by the Home Secretary in person, and he, of course, is responsible to Parliament. In addition, all the "conducive" deportation cases except the security and political cases carry with them a right of appeal 349 direct to the Immigration Appeal Tribunal, and the finding of that tribunal is binding on the Home Secretary. In those few cases where there are security or political considerations there is to be a facility to make representations to the three advisers, whose conclusions will be given great weight by the Secretary of State. It is for these reasons, as well as the ones advanced in our earlier debates, that the Government do not feel able to accept the proposal put by the noble Lord, Lord Brockway, again at this stage of the Bill.
§ LORD BROCKWAY
My Lords. I do not want to delay the House but the Minister has not replied to my suggestion that he might use here the same words as are used in Amendment No.49, which are.conducive to the public good as being in the interests of national security, …".Would that not be a satisfactory wording?
§ LORD WINDLESHAM
My Lords, it I may have the leave of the House I would say: No, it would not at all, for the reason I have just given. It would exclude, for example, all those convicted offenders the reasons for whose deportation had nothing whatever to do with public security. It may be that they had served a sentence for robbery with violence, or something of that sort. One could not really regard that as being a threat to national security. I should like to give the reasons for the later Amendment (No.49, I think it is) when we come to it. That Amendment refers to some special circumstances. It is a restriction on the freedom of movement within the common travel area, and we think that the justification must be drawn as narrowly as possible in that respect. I can give the background to that when we arrive at that particular Amendment.
§ LORD BROCKWAY
My Lords, I am much more concerned with the next Amendment than with this, and therefore will not press this Amendment.
§ Amendment, by leave, withdrawn.
§ 4.46 p.m.
BARONESS WHITE moved Amendment No.32:
Page 5, line 2, leave out from ("good") to end of line 4.
§ The noble Baroness said: My Lords, I beg to move the Amendment standing in the name of my noble friends and myself. We had a very long debate on July 22 on this extremely important matter of family deportation, and I would not for one moment wish to weary your Lordships by going over the arguments whichwereadduced, I think at some length and with great concern and thoroughness, on that day. But since that time we have had the advantage of seeing theRevised Draft Immigration Rules: Control after Entry, (Cmnd.4792), which was issued a week or two ago and which deals with this very matter of deportation, including the deportation of members of families, which is dealt with in paragraphs 46 to 51 of the White Paper. I should like to say straight away that we are grateful to the Government for having set out in this White Paper the considerations which will be borne in mind if appeals are made against deportation on the grounds that the persons concerned were members of the family of somebody against whom a deportation order had been made. I think that so far as the children of the family are concerned the Government have come a very long way to meet the points which were made in the debate. In fact, the noble Lord himself did so very largely in his own speech on that occasion; but, of course, at that time this was not embodied in a formal Paper, and it is much more satisfactory now to have this before us.
§ On the points that were made then about the wellbeing of a child—perhaps someone who was nearing the end of a school career, or possibly even someone who had in fact left home and taken employment but was under the age of 18, and who therefore should not, in any sensible world, be deported if he did not wish to be so, or leave the country voluntarily, which is of course a possible alternative—I should like, as I say, to express our appreciation of what is in the White Paper, and, subject to what any noble Lord in any other part of the House may wish to say, on the whole, so far as they go, within the principle of family deportation, I think that the proposals are reasonably satisfactory.
§ There is one small point to which I should like to draw the noble Lord's attention, and that is at the end of paragraph 51 of the White Paper. I raised the 351 point of its being not very clear, as to the possible revocation of an order on a wife, whether it concerned the order against her husband or the order against herself. It is still not clear in this paragraph; and I make this point only because I think that when we have rules it really is important that any sensible person ought so far as possible to understand what they mean, and there is still an ambiguity here in spite of the explanation which the noble Lord gave me in column 1228 of the OFFICIAL REPORT of our previous deliberations. That is a drafting matter and not one of substance. I would ask the noble Lord to look at it again.
I now come to the matter of substance which concerns many of us in this House: and that is the whole question of the principle of family deportation. This is something which causes many of us considerable concern, because it is a question whether persons who are in themselves completely innocent of any offence should be obliged to leave their homes in this country against their will. I emphasise that it is against their will. If they wish to go voluntarily, as in many cases they may. there is no objection. So it is, ex hypothesi, those who are unwilling to leave who will be affected by these proposals. I have particularly in mind the wife of a man who is considered to have committed some offence which makes him liable to deportation and where she is forced to leave this country when she does not wish to do so. In paragraph 47 the justification is given:
In most cases wives and children will have been admitted to the United Kingdom as dependants of the principal deportee. In these circumstances they have no claim to remain if he is to be expelled … ".
This brings one to the whole position of women. I do not want to go into this matter in detail; but it means that a woman who comes with her husband when he enters the country can be, assumed to have come in voluntarily or at least with acquiescence; otherwise she would not be here. Now we are saying, "Because you are a wife you must go, willy-nilly. "This has caused considerable concern to a number of women's organisations in this country and it would, I know, have caused concern to an even greater number if this had not been the
holiday period and there was little opportunity to consult them as widely as I personally should have wished. We are particularly concerned about the next paragraph which goes on to say:
The ability of a wife to maintain herself and any children in the United Kingdom, or to be maintained by relatives or friends without charge to public funds, is not in itself a sufficient ground for allowing her to remain here ….
Here she is not going to be a charge on public funds—and one can see the argument about public funds. The noble Lord reminded us of the notorious Italian family where the husband was deported and the wife chose to remain here with five or six children on supplementary benefit.—With that situation there are grounds for certain sympathy, but in my view, as I suggested last time, there was a way in which such a case could be dealt with. We naturally do not wish to encourage people in those circumstances. But if the wife is able to maintain herself and any children and we are told that that is not a sufficient ground for her remaining, I would ask: Why not? If she is not to be a charge on public funds, whose business is it to say whether she is to stay or not, if she came lawfully and is a good citizen? If her husband is a "bad-egg" why should we turn her out? If she wishes to go voluntarily then, of course, no problem arises.
I am much concerned about the way in which this rule is phrased; because in the speech that Lord Windlesham made on July 22 he said that there will be a right of appeal on family deportation. He went on:
Adjudicators will see whether or not the Immigration Rules have been adhered to."—[OFFICIAL REPORT,22/7/71, col.1219.]
This is one of the immigration rules; and it says that it is not a sufficient ground that she should be self-supporting but that this ability will be relevant if other circumstances point to the conclusion that she might be permitted to stay. There is no explanation of what other circumstances there might be. I think we should ask the noble Lord what other circumstances one has in mind. I feel strongly that it is only right that a woman who has committed no offence and who is able to support herself—and there is a reference to this specifically—if she wishes to stay, if there is nothing against her,
should be allowed to make up her own mind about what is best for her and any children there may be. It does not seem to me that this should lie with any official, any adjudicator or even with the Home Secretary himself.
In support of this I will read to your Lordships a letter which was sent on October 6 to the Home Secretary. No doubt the noble Lord will have seen it. It was from the President of the National Council of Women of Great Britain. That is an all-Party organisation; so this is not a Party point. This is the organisation to which a large number of women's organisations of all kinds in this country are affiliated. It is regarded by the Government as a principal spokesman on women's questions. They make no bones about it. With permission, I should like to read three short paragraphs:
Dear Home Secretary,
I am writing to convey to you the concern felt by the National Council of Women at the provision in the Immigration Bill that a woman should be liable to deportation for the sole reason that she is the wife of a man against whom a deportation order has been made. We realise that in the great majority of cases the wife and family of a man who is being deported will wish to leave the country with him. There will be cases, however, where she will have good reason for wishing to remain in Great Britain. We consider that to deport a woman against her will when there is no reason for so doing except her marital status is a form of vicarious punishment and a denial of human rights. We urge you to amend the Bill to provide at the least in such cases the woman in question shall have an unqualified right of appeal against deportation.
§ That is a strong expression of opinion on behalf of a large number of women's organisations in this country. We feel strongly about this matter as one of principle—particularly that where a wife can maintain herself and her children without being a charge on public funds it shall not be given as a conclusion that this in itself is not a sufficient ground. It should at least have been put in a positive way that if she can do so and if she wishes to stay here that shall be a sufficient ground unless there are other circumstances. We should like to know what other circumstances there could be which could point to a contrary conclusion if she were herself not involved in an offence for which a deportation order was made.354
§ I ask the Government to reconsider the position of the wife. If she came into the country as a dependant of her husband at least she came voluntarily, and now by these provisions we are expelling her involuntarily. This seems to us, as the National Council of Women has said, to be a denial of human rights. That is the principal point I wish to make on this Amendment. I dislike the whole idea of family deportation as a form of guilt by association; but particularly strongly where the position of women are concerned. There are certain mitigating matters which are referred to in the rules where the wife, though not formally divorced, may have been living apart from the principal deportee; but it has to be before deportation came into prospect. We discussed this matter fully on the last occasion. It seems to me that the Government have not taken into account the arguments which were then put forward: that a couple may have been living together and that this offence for which a deportation order is made is the last straw.
§ Should a woman leave her husband? There are various reasons why, even if the marriage has effectively broken up, she should stay with him; such as financial considerations, or for the sake of the children, or because of concern for her husband's public position or job. But if he has reached a point where he has done something serious enough for deportation, she may feel, "This really is the end". If, at that point, she says, "No, I do not want to go on living with him," it is too late. By that time the deportation may not only be in prospect but also may have been realised. Again, I am very sorry that on this point, too, the Government do not seem to have paid much attention to what I think were the forcible arguments that were put forward. I do not like to say so, because I have the greatest regard for the Civil Service (I have been a civil servant myself), but this all smacks of officialdom. It does not take sufficiently into account the human situation which, after all, many of us can fully appreciate from our own experience, or in our own lives or the lives of acquaintances. For those reasons, my Lords, although I feel that in certain respects the Government have come quite a way to meet us and we are grateful for it, we believe that in this 355 matter of fundamental significance they have not done so; and I beg to move the Amendment.
§ BARONESS EMMET OF AMBERLEY
My Lords, I rise to support the Amendment. I spoke at some length on it in Committee and I do not want to go over all the points again. Having read through the regulations, I should like to underline one or two points where I do not find myself in agreement with my noble friends on this matter. To begin with, there is the last point made by the noble Baroness, Lady White, about deportation. A wife may not have come to a decision to live apart from her husband until the deportation order has taken effect. She may have struggled to keep the marriage going, but decides that that is the last straw, and that she does not wish to leave with him. If she were forced to go with her husband we should be forcing the woman to go back to her country to live apart from her husband, which seems to me an extremely bad rule to make.
There are two or three other points that I should like to make. In the new regulations the 18-year-old is given a complete freedom of decision about what he wishes to do. I cannot see why, from the point of view of making decisions herself, a wife should be, considered inferior to her 18-year-old son or daughter. Under these regulations she is considered not as a person but as an adjunct. I thought we had got away from that position some time ago. To me this is not a Minister's, but a ministerial, drawing up of regulations, with the old idea still behind them that the wife is an adjunct and cannot make decisions on her own. To me this difference between an adolescent and an adult woman is very repugnant. If you draw the logical conclusion from guilt by association that is to say, if a wife is deported because her husband is guilty of something which is the reason for the deportation—you might just as well say that if he goes to prison his wife should go also. That is the logical conclusion of that sort of argument. I feel very strongly that this will offend the women's organisations in this country very much, and I beg the Government Front Bench to give further consideration to this matter.
§ 5.5 p.m.
THE LORD BISHOP OF COVENTRY
My Lords, I do not wish to detain your Lordships for long but I should very much like to underline the speeches which have just been made. I regard this clause as one of the most obnoxious and potentially dangerous of all the many clauses in the Bill that offend me. As I have gone round talking to a large number of people about this Bill, the one fact that is very clear in the minds of many is the sense of insecurity that it creates. It seems that this clause is bound to give a feeling of a real insecurity to the women and the families and that it is an infringement of freedom. We talk so much in this country about a love of freedom, and I should have thought that here is a clear illustration of how—perhaps without knowing it—we are not widening but are narrowing the basis of of freedom upon which our country has been built. I hope very much that the Government will give further consideration to this matter, and that the Amendment will be accepted.
§ LORD AVEBURY
My Lords, this is a case of visiting the sins of the fathers on the children unto at least the first generation, if not the fourth; and I think it highly objectionable. for that reason alone, that the children are to be deported if, in the wisdom of the Government, the presence of their father is no longer desirable in this country. But there is a particular feature of it to which I should like to draw attention, particularly after the remarks on this clause made earlier by the noble Baroness. Under the rules accompanying this Bill a person can be deported if she is the wife or child under 18. If a woman is deported her husband cannot be. I agree that the phraseology of the Bill is much wider. It refers to:… another person to whose family he belongs is or has been ordered to be deported.But the sex discrimination to which the noble Baroness referred is apparent when you come to look at the rules and read them in conjunction with the Bill. If a husband has been convicted of an offence and he is deported, his wife and children can be sent with him. But if a woman has been allowed to enter this country and she is then deported, the husband can remain. I think this an even more 357 monstrous feature of the Bill, and the rules made under it, than has yet been realised. It is bad enough in itself, but when the provision is particularly directed against women I think that no one in this House could possibly support it. I hope that the Amendment will be accepted.
§ LORD GARDINER
My Lords, may I raise one further point, notice of which I have given to the noble Lord, Lord Windlesham? There is nothing in the Bill to show how the Home Secretary will exercise his discretion, but in the new rules, which I think were first published last week, it appears that he will have a wide discretion to take account of any compassionate circumstances affecting those liable to be deported; that is to say, if a man has done wrong, his wife and children under 18. But I think that the draftsman has completely forgotten that there may be other. people affected by compassionate circumstances—for example, spouses of the children. As your Lordships know, people marry too young nowadays. If a Pakistani of 17 marries an English girl the rules appear to me to limit and confine those things which the Home Secretary can take into account when deciding whether to make a deportation order against the family. At first sight that may seen logical, but look a the position of the girl. She is not liable to be deported, but she is liable to be put in a position in which, although she has done nothing wrong and although her husband has done nothing wrong, just because his father once did something wrong—which she knows nothing about—she has to face the choice of either breaking up her marriage or going to live in Pakistan. Yet, as I read the rules, the Home Secretary is not entitled to take those compassionate circumstances into account.
§ LORD WINDLESHAM
Well, my Lords, it is exactly points like these that we must study and scrutinise. I have had a lot of experience of deportation cases, and I can tell the noble and learned Lord, Lord Gardiner, without a moment's hesitation that at no point in this Administration—and I am sure at no point in the Administration of which he was a member—would a Home Secretary consider for one moment acting in that way. These are precisely the sort of circumstances that are taken into account when 358 looking at deportation cases. It is considerations of this sort that we should have in mind when we think of what meaning should be given to the words, "compassionate or other circumstances"
Subsequent to the debate we had in Committee, the Government tabled a White Paper (Cmnd.4792), paragraphs 46 to 51 of which make clear what sort of criteria the Tribunal should have in mind when considering these appeals, because we should remember that this right of appeal in cases of family deportation was added in your Lordships' House in Committee. The Bill as originally published provided no right of appeal at all, but the Government put forward an Amendment giving this right of appeal. The noble Baroness and other noble Lords pressed us hard on the sort of considerations the Tribunal would take into account, and that is why these paragraphs in the White Paper set them out. It is my understanding that the representations made to us by the National Council of Women have in substance been met. The noble Baroness, who is close to this, will know whether I am right in saying that they are asking not that this clause should be deleted from the Bill but that there should be what they call an unqualified right of appeal. We believe that there is an unqualified right of appeal. Any member of a family will have a right of appeal to the Tribunal.
It may be that there is still some difference between us on the guidance, contained in these rules, which will be before the Tribunal when they are considering an appeal. It may be felt that these are too restricted in some respects. I should like to give the House an assurance that we will look again at the wording of these rules, particularly to see, as noble Lords suggest, whether we are tying the hands of the Tribunal too much. We will see whether there is a form of words which would make the matter clear. But it is up to the Tribunal to make up their own minds as to what is the proper course of action and their decisions will be binding on the Home Secretary.
When this question was debated in Committee I explained that there was a small but persistent problem presented by the families of men who, for one reason or another, were ordered to be deported, 359 and that the Government felt it necessary to introduce this power, which would be exercised with care and humanity, to deal with the case of the woman who had no right to remain here and declined to leave the country when her husband was deported. I said then that the Home Secretary had agreed to introduce a right of appeal in these circumstances, and the Bill has since been amended to provide for such an appeal to the Tribunal. The Home Secretary also gave an undertaking that in every case the member of the family should be given the option of supervised departure.
The main misgivings expressed in Committee, and to a certain extent since the publication of the new draft rules, really concern exceptional cases and the kind of circumstances in which the power would be used. Fears were expressed that women who were living apart from their husbands would be deported and that children would be deported in circumstances in which this would be harsh. The Government have now published some general guidance to the Immigration Appeal Tribunal which they will have before them when dealing with cases of this sort, and I re-emphasise that it is not an easy matter on which to be specific. A great deal ought to be left to the good sense and humanity of the Tribunal, so that they may make the judgments which appear to them to be fair in this type of case. It is exactly for this reason that the draft rules are not absolute in their terms. That is one of the reasons why they are not a Statutory Instrument.
In an earlier debate noble Lords opposite claimed that the rules should be in the form of a Statutory Instrument. But the rules use words like "normally", and the Secretary of State in all cases will have discretion whether or not to initiate deportation proceedings against the members of families. As I have said, these cases will be considered carefully within the Home Office.
The draft rules which have now been published in the last week or so make it plain that a wife will not be deported if she entered the United Kingdom in her own right and not in the right of the man being deported; and that a wife will not be deported if she has been living 360 apart from her husband before deportation came into prospect. If she and her husband are separated, there is no doubt whatever that she will not be liable to family deportation; nor will children be deported, if they have been here for some years and are nearing the age of 18, or if they have left home and have established themselves on their own. The Government would welcome any suggestions on how these draft rules might be applied. I said this when we discussed the matter in Committee, although at that stage I appreciate that the rules were not before us. We have a week before Third Reading and if noble Lords opposite want to suggest changes—for instance, the noble and learned Lord, Lord Gardiner, has been in touch with me—our minds are not closed on this. These are draft rules and we want to improve them.
On one point on which the noble Baroness, Lady Emmet of Amberley, spoke, there is none the less a small and difficult problem. In Committee nobody except the noble Baroness, Lady White, came forward with a suggestion as to how it might be met. Incidentally, I understand there are similar provisions in the immigration laws of a number of other countries. The noble Baroness, Lady White, felt that if it was a really intractable problem, the Home Secretary should use his power to deport on non-conducive grounds. I do not think this is the proper use of the non-conducive powers. I do not know what the noble Lord, Lord Brockway, would say about this—he keeps a close eye on what would be or would not be non-conducive—but I think most people would feel this to be an unjustifiable extension of the use of that power. Is it really right, where a man has been admitted, perhaps as a visitor for three months, overstays and takes employment, which he has been specifically barred from taking on entry, and is then deported, that his wife and children should remain here? Is it really right that a family should be divided in this way? It says something for the differential between the standard of living in this country and the standard of living in the developing world that this should happen. Though this thought should not enter the minds of dependants, it does, and it is for reasons of this sort that this power is needed in the Bill.
§ LORD KILBRACKEN
My Lords, the noble Lord still has not dealt with the point raised by he noble Lord, Lord Avebury, of the case where a wife is deported and the husband is not liable to deportation. In this case a family is compulsorily divided in just the same way as the noble Lord was condemning a moment ago.
§ LORD WINDLESHAM
My Lords, rightly or wrongly, under the immigration control system in this country, and in almost every other control system with which I am familiar, the wife and children are admitted as dependants of the man. This may not be welcomed by noble Baronesses but they are admitted as dependants of the breadwinner, whereas a man is not admitted in this capacity.
§ LORD GARDINER
My Lords. are they not admitted because they are the man's wife and children, whether depencleat or not? If that is so, why should a wife who comes here to earn her own income, perhaps to support a disabled husband, be in any different position the other way round?
§ BARONESS EMMET OF AMBERLEY
My Lords, may I ask the Minister to elucidate one point? If a wife appeals against a decision, how long does that take? Is the husband meanwhile not deported, or are they both deported and then appeal from abroad? What happens?
§ LORD WINDLESHAM
My Lords, it I may have the leave of the House to speak again, may I say that I should not like to give an answer off the cuff. The wife is not deported, and there is no question of appealing from abroad. My recollection is that she has a period of time in which to exercise her right of appeal. The man may still be here, or he may have gone while the appeal of the family is still pending. I think that that is right as a general account, but I ought to check the detail and let the noble Baroness know. This is the third time that I have been on my feet; this is a Report stage, and we must avoid falling back into a second Committee stage. I have said that I should like to look at the wording of these rules, and to hear from noble Lords opposite as to 362 any way in which they think the wording can be improved. I do not think I should engage in further question and answer.
§ LORD FOOT
My Lords, may I intervene for a moment before the noble Baroness replies? I have listened with great care and attention to everything the noble Lord, Lord Windlesham, has said about this. I was waiting until the end to hear him deal with what is the root issue which faces us on this clause; namely, whether it is right that people who do not want to leave the country should be deported because they happen to be the members of the family of the deported person. Any talk about improving the rules and trying to make them more humane is, in my view, beside the point, because if you start off by doing something that is wrong, you cannot put it right by trying to introduce all sorts of humanitarian considerations into the operation of the administration of the thing which is wrong.
The noble Lord, if he will forgive me for saying so, has not answered the issue as it was posed by the noble Baroness, Lady White, when she opened this debate; that is to say, whether it is right as a matter of principle that innocent people should be compelled, against their will (because, as the noble Baroness emphasised, it must always be against their will), to go. When the noble Lord, at the conclusion of his speech, was trying to give us an illustration of why the Government must have this power, he took the extreme example of the person who comes into this country for a limited period of time with a work permit.
§ LORD FOOT
Yes; without a work permit; as a visitor. He comes into this country and overstays the period for which he is given permission to stay. Then the noble Lord says: suppose he is deported on that ground, is it right that the wife and children should remain? But the fallacy of the argument is this. In those circumstances, is it at all likely or probable that the wife and children will want to remain? The noble Lord, in trying to give us an illustration 363 of why this is justified, takes a case that really has no relation to any reality. What he overlooks is that, if you look at it the other way round, this is, in many cases, going to cause grave injustice and hardship. The noble Lord, in order to try to avoid the sort of case which he used in his illustration, is prepared to accept, and the Government are prepared to accept, the many cases of hardship which will indubitably arise. Therefore I hope the noble Baroness will carry this Amendment to a Division. I think it is possibly one of the most important points in the whole Bill. I know from the contacts that I have had up and down the country in immigrant communities how much importance they attach to it.
§ BARONESS WHITE
My Lords, I entirely agree with the noble Lord, Lord Foot, that most of us, at any rate. are opposed to this on principle. After all, we have managed without family deportation up to now. The only justifiable ground that I can see for it would be if there were a charge on public funds as a result of members of the family staying here without means of support. If the Government had found some method of confining themselves to that, then I think it would be justifiable, in the sense that one could argue that it was not proper that British taxpayers should have to support persons who had come here on the understanding that they would be supported by a breadwinner, but, if he was deported, would be dependent on public
§ funds. If the Government had put that forward as a narrow ground. or had included it within the wider ground, that at least, I think, would be not morally repugnant. But I must say that I find the broad ground which they have taken in this Bill completely unacceptable.
§ If I may be permitted to correct the impression that I think the noble Lord. Lord Windlesham, was giving to your Lordships' House, I do not think there is anything in the letter from the National Council which goes against anything that I have said, because their primary objection is on the principle: that if a woman is deported against her will when there is no reason for doing so except her marital status, this is a denial of human rights and a form of vicarious punishment. They then go on to say that at least there should be an unqualified right of appeal. That means, of course, that there would not be the qualifications in these rules—because they arc qualifications—to the right of appeal.
§ On all these grounds, without traversing the matter further, and, as I say, with the strong support of the women's organisations in this country, I am afraid that I must ask your Lordships to support us on this Amendment in the Division Lobby.
§ 5.27 p.m.
§ On Question, Whether the said Amendment (No.32) shall be agreed to?
§ Their Lordships divided: Contents 61; Not-Contents 106.365
|Amherst, E.||Foot, L.||Platt, L.|
|Archibald, L.||Gardiner, L.||Ritchie-Calder, L.|
|Avebury, L.||Garnsworthy, L. [Teller.]||Rochester, L. Bp.|
|Beswick, L.||Gray, L.||Royle. L.|
|Blacken, L.||Greenwood of Rosendale, L.||Ruthven of Freeland, Ly.|
|Bristol, L. Bp.||Gridley, L.||Sainsbury. L.|
|Brockway, L.||Henderson, L.||St. Davids, V.|
|Brooke of Ystradfellte, Bs.||Hertford, M.||Seear, Bs.|
|Buckinghamshire, E.||Jacques, L.||Sempill. Ly.|
|Burgh, L.||Tanner, L.||Serota, Bs.|
|Byers, L.||Kennet, L.||Shackleton, L.|
|Champion, L.||Kilbracken. L.||Shepherd, L.|
|Chorley, L.||Leatherland, L.||Simon, V.|
|Cork and Orrery, E.||Lee of Asheridge, Bs.||Summerskill, Bs.|
|Coventry, L. Bp.||Llewelyn-Davies of Hastoe, Bs.||Wade, L.|
|Crook. L.||Lloyd of Hampstead, L.||White, Bs.|
|Davies of Leek, L.||Meston, L.||Winterbottom, L.|
|Delacourt-Smith, L.||Monckton of Brenchley, V.||Wootton of Abinger, Bs.|
|Donaldson of Kingsbridge, L.||Moyle, L.||Wright of Ashton under, Lvne, L.|
|Douglass of Cleveland, L.||Ogmore, L.|
|Emmet of Amberley, Bs.||Phillips, Bs. [Teller.)|
|Aberdare, L.||Effingham, E.||Macleod of Borve, Bs.|
|Abinger, L.||Elgin and Kincardine, E.||Milverton, L.|
|Ailwyn, L.||Erroll of Hale, L.||Monck, V.|
|Albemarle, E.||Essex, E.||Monson, L.|
|Aldenham, L.||Exeter, M.||Morrison, L.|
|Alexander of Tunis, E.||Falkland, V.||Mowbray and Stourton, L. [Teller.]|
|Amherst of Hackney, L.||Falmoutli, V.|
|Amory, V.||Ferrers, E.||Moyne, L.|
|Auckland, L.||Garner, L.||Napier and Ettrick, L.|
|Balerno, L.||Glasgow, E.||Netherthorpe, L.|
|Balfour of Inchrye, L.||GlcnJevon, L.||Northchurch, Bs.|
|Barnby, L.||Goschen, V. [Teller.]||Oakshott, L.|
|Belhaven and Stenton, L.||Greenway, L.||Orr-Ewing, L.|
|Belstead, L.||Grimston of Westbury, L.||Perth, E.|
|Berkeley, Bs.||Hackina. L.||Poltimore, L.|
|Bessborough. E.||Hailes, L.||Rankeillour, L.|
|Brabazon of Tara, L.||Hailsham of St. Marylebonc, L. (L. Chancellor:)||Reay, L.|
|Brecon, L.||Rochdale, V.|
|Brooke of Cumnor, L.||Harvey of Prestbury, L.||Rockley, L.|
|Carrington, L.||Hatherton, L.||Sackville, L.|
|Colgrain, L.||Hawke, L.||St. Aldwyn, E.|
|Colyton, L.||Hives, L.||St. Helens, L.|
|Conesford, L.||Hood, V.||St. Just, L.|
|Cottesloe, I..||Hurcomb, L.||St. Oswald, L.|
|Craigavon, V.||Hylton-Foster, Bs.||Sandford, L.|
|Craigmyle, L.||Ilford, L.||Selsdon, L.|
|Crathorne, L.||Jellicoe, E. (L. Privy Seal)||Sinclair of Cleeve, L.|
|Crowthcr, L.||Jessel, L.||Stonehaven. V.|
|Daventry, V.||Kemsley, V.||Strange of Knokin, Bs.|
|Davidson, V.||Kindersley, L.||Strathclyde, L.|
|de Clifford, L.||Lansdowne, M.||Teviot, L.|
|Denliam, L.||Lauderdale, E.||Teynham, L.|
|Derwcnt, L.||Lindsey and Abingdon, E.||Tweedsmuir, L.|
|Digby, L.||Lloyd, L.||Tweedsmuir of Bclhelvie, Bs.|
|Dudby, E.||Long, V.||Vivian, L.|
|Eccles, V.||Lyell, L.||Windlesham, L.|
On Question, Amendment agreed to.
§ LORD FOOT
My Lords, I should like to speak on AmendmentNo.33on behalf of my noble friend, Lord Wade. It is:Page 5, line 9, after ("imprisonment") insert ("for a period of at least twelve months").I do not intend to proceed with it but perhaps I might offer a short explanation. This matter was dealt with in Committee by my noble friend, Lord Beaumont of Whitley, and since that time the Minister has been good enough to write to us in explanation of the Government's view on this matter, and we are satisfied that he has got it right. On the other hand, I should like to indicate that we on this side are willing to be convinced by arguments just as the noble Lord opposite has been convinced by them. I shall not move this Amendment.
§ 5.36 p.m.
LORD FOOT moved Amendment No.34:
Page 5, line 29, after ("Act") insert ("when a person is seeking to enter the United Kingdom or is seeking leave to remain in the
United Kingdom, or is seeking to appeal against an official decision on any of the grounds allowed by this Act ").
The noble Lord said: My Lords, the matter covered by this Amendment was raised in Committee by my noble friend, Lord Wade, and what we were concerned about was the weight and compass of the opening words of subsection (8), which reads:
(8) When any question arises under this Act whether or not a person is patrial, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is.
The first matter that concerned us was in what circumstances can the question of whether a person is a patrial arise. My noble friend posed some hypotheses and took, for example, the case of the person who goes to an hotel and is then perhaps questioned as to whether he is patrial or not. Is he then under some obligation to produce his certificate of patriality in order to prove that he is indeed a patrial? Again, take the case of a person who may be taken to a police station for questioning: if the question arises
then as to whether or not he is a patrial, has he to produce some proof of his patriality?
§ The noble Lord, Lord Windlesham, said in reply that he did not think this question could arise in those circumstances. He thought at first that the question whether or not a person was a patrial could arise only when someone was seeking entry into the country. I suppose everybody would agree that it is perfectly reasonable that that person should have on him the burden of proving patriality at that stage. Then, as a second thought, the noble Lord, Lord Windlesham, said he could think of one other circumstance, at all events, in which a person might be required to prove his patriality; namely, in a case where it was proposed to make a deportation order against him. In such a case the burden of proof would fall upon him. I have thought of a third circumstance in which the question might properly arise, and that is where a person claiming to be a patrial is abroad in a foreign country and is seeking to obtain a certificate of patriality. There the question would arise under this Act as to whether or not he is a patrial.
The purpose of this Amendment is to try to specify the circumstances in which a question properly arises as to whether a person is patrial or not. We have proposed to do that by inserting after the word "Act" the words of the Amendment, so that it will read like this:
When any question arises under this Act when a person is seeking to enter the United Kingdom or is seeking leave to remain in the United Kingdom, or is seeking to appeal against an official decision on any of the grounds allowed by this Act whether or not a person is patrial, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is.
The effect of this, as we see it, is that a person can only be required to demon-state or prove his patriality either when he is going through the ordinary immigration procedures or when the question of his patriality is a matter of judicial process. We want to ensure that nobody can be required to produce documents to unauthorised persons, or anything of that kind. We want merely to define the area in which a question properly arises whether a person is patrial and whether he should be called upon to prove his patriality. I beg to move.
§ LORD DENHAM
My Lords, I think I can answer this point shortly. First of all, I should like to repeat what my right honourable friend, the Home Secretary, said in another place on the Second Reading of this Bill, in answer to fears of the sort that the noble Lord, Lord Foot, expressed—fears that immigrants might be stopped by the police and required to prove that they are patrial or otherwise lawfully in this country. My right honourable friend, the Home Secretary, said that a policeman who questioned an immigrant without reasonable grounds could not rely on Clause 3(9) since he could not claim that the question had arisen under the Act. The difficulty in accepting the noble Lord's Amendment is threefold. First, there is a similar provision that it is for the person claiming that he is patrial, or that he is not liable to deportation, to prove it in the Commonwealth Immigrants Act 1962, and in the Aliens Order. Secondly, to be asked to prove the negative proposition that somebody is not patrial is very difficult indeed, and generally in law it is not for a negative proposition to be proved. Thirdly—and this is the most important point—if this Amendment were accepted it would mean that on a number of questions that might arise under the Act it would be necessary for the Home Office to make very elaborate investigations indeed, since there would be no obligation on the person concerned to furnish any details at all; he could claim that he was patrial and take no steps at all to prove it. I hope that the noble Lord will not press this Amendment.
§ LORD DONALDSON OF KINGS-BRIDGE
Subsection (8) says:When any question arises under this Act whether or not a person is patrial, or is entitled to any exemption under this Act"—and it is here that the Amendment comes in—it shall lie on the person asserting it to prove that he is.This can only mean that anybody who is challenged at any time has to prove that he is patrial or entitled to exemption. Is not this what we are talking about? I cannot see how anything that has been said suggests that this is not the case. I think it is regrettable that this should be so, but I think it remains so after what we have heard.
§ LORD DENHAM
My Lords, if the House will give me leave to speak, it has to be a question that has arisen under the Act.
§ LORD BYERS
My Lords, is the noble Lord absolutely sure that he is answering to Amendment No.34 and not Amendment No.35? It would be interesting to know what sort of an answer he has to Amendment No.35.
BURY: My Lords, may I say something, because it seems as if we are in a muddle here? The noble Lord, in answering, was talking about the final words of the subsection:… it shall lie on the person asserting it to prove that he is.We arc not talking in this Amendment about who is going to prove what, we are talking about the type of questions which might arise under the Act where a person has to prove whether or not he is patrial. What my noble friend has done—and I did not see any difficulty in understanding what he said—is to limit the circumstances that could arise under the Act to the ones mentioned in his Amendment. When the noble Lord was answering he said that there were many questions which could arise under the Act where it would be desirable or necessary for a person to prove whether or not he was patrial. Therefore he was saying that there are other circumstances, apart from those mentioned by my noble friend, where this subsection would come 370 into operation. I am sure that it would be of the greatest assistance if the noble Lord could outline some other examples of cases where it was necessary for a person to prove that he is patrial, apart from those enumerated by my noble friend.
My Lords, in my humble opinion my noble friend has been answering Amendment No.34, and he has answered it completely to my satisfaction.
§ LORD DENHAM
My Lords, if the House will give me leave to speak once more, just to give one example, there is the case where a person is charged under Clause 24 with having entered the country without leave. As the Bill stands, if his defence was that he was patrial and did not therefore require leave to enter, he would have to produce proof of patriality. If he were patrial he would have no trouble in establishing this by showing, for example, his passport or his birth certificate; but it would be almost impossible for the prosecution to prove the contrary, as they would have to do if this Amendment were accepted.
§ LORD FOOT
My Lords, the fault is probably mine in that I did not at the outset make clear what I was trying to say in this Amendment. May I have one last chance? The anxiety felt about this clause as it stands—and I am not dealing with the subject matter of Amendment No.35, which is where the burden of proof ought to lie—was whether, if the words were left as indefinitely as they are in the clause and any question arises under this Bill as to whether a person is patrial, that might give rise to cases in which a policeman could say to an alleged patrial, "You say you are patrial; you prove it ". We merely want to avoid that. The Government say, "No; the policeman would not be justified in putting such a question". All we want to do is to make perfectly plain in what circumstances the question of patriality arises.
Our Amendment suggests that they should be limited to three sets of circumstances. The first is where a person is seeking to enter the United Kingdom the second is when that person is seeking leave to remain in the United Kingdom; 371 and the third is when he is seeking to appeal against any official decision on the grounds allowed by this Bill. If that really represents the three circumstances in which the Government think that this question can conceivably arise, then what is the objection to the Government's accepting the Amendment?
§ LORD DENHAM
My Lords, with permission, those are not the only three circumstances in which this may need to be done. I have already quoted one other to the noble Lord. Lord Avebury, and given time, which I do not think I have, I could quote others but those are not the only three occasions on which this would be necessary. For this reason we cannot accept the noble Lord's Amendment.
§ On Question, Amendment negatived.
§ 5.52 p.m.
LORD FOOT moved Amendment No.35:
Page 5, line 31, at end insert—
("The decision shall he made on the balance of the probabilities.")
The noble Lord said: My Lords, this Amendment deals with the latter part of this clause that we have been discussing. I must first of all apologise to the House because this Amendment is not in proper form. It should have been to delete from this clause all the words in line 31 after the word "Act" and to insert the words which are in the Amendment, so that the provision would read:
When any question arises under this Act whether or not a person is patrial, or is entitled to any exemption under this Act, the decision shall be made on the balance of the probabilities.
In the earlier discussion I took the three examples of the circumstances in which questions of a person's patriality could arise. The first of them is of course where a person presents himself to the immigration officers for entry into the country. I am prepared to concede, and I do concede, that in those circumstances and on that occasion it is not at all unreasonable that the burden of proof should rest on the intending immigrant, because he has only to arm himself with a certificate of patriality and he has proved his case. But the other two circumstances in which the question of a person's patriality can arise are of a
different category. The first of them is where it is contemplated making a deportation order against him. The second is that of the person abroad who seeks to obtain a certificate of patriality from the authorities abroad. In those two circumstances, I suggest that it is unfair that the burden of proving positively that he is a patrial should rest upon him. and I suggest that the matter ought to be decided, as in an ordinary civil action, on the balance of probabilities.
§ I say that for this reason. Take the case of the person abroad who is trying to establish that his father was a United Kingdom citizen at the time of his birth. or the case of the person who is going to have a deportation order made against him and says, "No, you can't do that to me because I am a patrial and my father was a United Kingdom citizen at the time when I was born. "The absolute proof of that may depend upon records, and it very probably will. But records can be lost, records can be destroyed and records can have ceased to exist, and in many parts of the world, particularly, for example. in the subcontinent of India, no such records may be kept. Therefore. a person may be a patrial, he may be fully entitled to free entry into this country, and yet he cannot prove it because he has not the weapons, the means, with which to prove it to be true. Surely in those circumstances it ought to be right that the decision should depend, not upon his being able to prove this positively, but upon consideration of the probabilities of the matter on both sides, and whatever tribunal makes the decision it should reach that decision on the balance of probabilities. That is all that this Amendment seeks to do.
§ I would finish by taking one illustration. Supposing there is a person abroad who is in fact the child of a United Kingdom citizen and he seeks to obtain a certificate of patriality in order to come into this country. Would it not be a grave injustice if that person were to be deprived of the opportunity of obtaining the certificate, through no fault of his own but simply because it so happens that he is in no position to prove the essential factors that have to be proved in order to make out his case? I suggest that that possibility of injustice could be avoided with no harm being done to 373 anybody if the Government would accept the terms of this Amendment.
§ LORD DENHAM
My Lords, I am in a little difficulty here, because the noble Lord's Amendment as it was put down on the Paper is rather different from the noble Lord's Amendment as he explained it to your Lordships.
§ LORD FOOT
My Lords, I appreciate that and I repeat my apologies for the way it was done. I am sorry that I did not bring this to the attention of the noble Lord before. But may I say that, because my Amendment is defective in form and is not right, I shall not carry it to a Division and shall in due course, when we have listened to the noble Lord, seek leave to withdraw it. But I wonder whether the noble Lord would tell us what the argument is against the substance of the matter, that a decision should be made on a balance of probabilities.
§ LORD DENHAM
My Lords, I was not complaining to the noble Lord, because he apologised to the House before. What I was saying was that we had originally thought he was discussing the standard of proof—whether it should be on the balance of probabilities or whether it should be, as might perhaps have been assumed, beyond all reasonable doubt. I thought the Amendment originally referred to the standard of proof. I now see that the noble Lord is referring to the burden of proof. I am not prepared at the moment to say very much about this matter. I am advised that in an ordinary civil action the burden of proof is on the person asserting a claim. He has to prove it, on the balance of probabilities, and the position in this case is the same as under Clause 3(8). In fact, I now see from what the noble Lord has said on this Amendment why he thought I was dealing with this matter on his last Amendment. However, possibly much of what I said then will give the noble Lord the Government's attitude on his revised Amendment.
§ LORD FOOT
My Lords, I do not want to take up any more time. The muddle is mine and I apologise again to the Minister for having created it. But I wonder whether between now and Third I 374 Reading he would look again at this question to see whether the Government might be prepared to do something about it. I am not asking for any undertaking but I am suggesting that the matter might be looked at again.
§ LORD DENHAM
My Lords, with your Lordships' permission, and giving no undertaking whatsoever, may I say that I shall certainly do that.
§ Amendment, by leave, withdrawn.
§ LORD WINDLESHAM
My Lords, Amendment No.36 follows on Amendments Nos.8 and 15 which were discussed yesterday. I beg to move.
Page 5, line 33, after ("above") insert ("or any reference thereto in section 2(1/)") (Lord Windlcsham.)
§ Clause 4 [Administration of Control]:
LORD WADE had given Notice of his intention to move Amendment No.38:
Page 6, line 19, leave out subsection (3).
§ The noble Lord said: My Lords, my noble friend Lord Brockway agrees with me that the purpose of this Amendment no longer arises, as it related to the subject of registration with the police, and in view of the earlier announcement on that subject I do not propose to move it.
§ Clause 5 [Procedure for, and further provisions as to, deportation]:
LORD DENHAM moved Amendment No.41:
Page 7, line 36, at end insert—
("(6) Where a person is liable to deportation under section 3(5)(c) or (6) above but, without a deportation order being made against him, leaves the United Kingdom to live permanently abroad, the Secretary of State may make payments of such amounts as he may determine to meet that person's expenses in so leaving the United Kingdom, including travelling expenses for members of his family or household.")
§ The noble Lord said: My Lords, this Amendment seeks to empower the Secretary of State to meet the removal expenses 375 of a person who, being liable to deportation on conviction and recommendation by a court, or as belonging to the family of a person to be deported, is willing to leave the country without a deportation order being made. I beg to move.
§ Clause 6 [Recommendations by court for deportation]:
§ 6.2 p.m.
LORD FOOT moved Amendment No.42:
Page 8, line 21, leave out from ("deportation") to end of line 26.
The noble Lord said: My Lords, this Amendment seeks to delete subsection (3)(b) of Clause 6, and this subsection (3) is concerned with the interpretation of an earlier clause which, oddly enough, is Clause 3(6). If I may first read that I think it will put the Amendment in context. Clause 3(6) reads as follows:
Without prejudice to the operation of subsection (5) above,
and subsection (5) is concerned with the powers of the Secretary of State to make deportation orders—
a person who is not patrial shall also be liable to deportation from the United Kingdom if, after he has attained the age of 17, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.
When we turn to Clause 6(3) we find that, under paragraph (b), for the purposes of Clause 3(6),
the question whether an offence is one for which a person is punishable with imprisonment shall be determined without regard to any enactment restricting the imprisonment of young offenders or first offenders …
The question I asked in Committee was whether that was really right. Where a young offender, or a first offender, is convicted before a court of an offence which carries with ii the punishment of imprisonment, though the court is precluded from imposing a sentence of imprisonment because it is a young offender or a first offender, is it right that that court, which cannot send him to prison, should nevertheless have the right to recommend him for deportation? There must be many circumstances in which the penalty of a deportation order may be considerably graver than any term of
imprisonment that the court might impose.
§ In moving this same Amendment at the Committee stage I was fortunate enough to have the support of the noble and learned Lord, Lord Gardiner, and I do not want to detain the House now by rehearsing in any detail the arguments which he and I advanced in support of this Amendment on that occasion, but perhaps I may summarise them briefly. In the first place I sought to point out that to give the courts any power to recommend a person for deportation was probably undesirable, and I thought particularly undesirable in the case of magistrates' courts. I said that because I do not think that the magistrates' courts, in particular, and possibly also even the higher courts, are well designed to deal with the difficult issues involved in deporting somebody. It seems to me that those matters are very much better resolved by the exercise of the discretion of the Home Secretary. I sought to point out that if we leave to magistrates' courts this question of recommendations for deportation we are likely to create inconsistencies between the decision of one court and another, because people's views upon this matter of sending aliens or immigrants out of the country vary considerably according to their particular predilections and preferences.
§ The second point that I sought to make was that if, nevertheless, we arc going to leave in the hands of the courts the power to recommend deportation, and if we are to have it at all, would it not be very much better to circumscribe it by saying that a court cannot recommend deportation if it has not the power to send the particular person to prison?
§ What was the reply that we received to this from the Government? At the end of the discussion the Government undertook to look at the matter again, and the noble Lord, Lord Windlesham, has since been good enough to write to me to give me the reasons why, on consideration, the Government do not feel able to give way on this point. I should like briefly to deal with the points that he made. First, he said that the Government and the country are faced with the fact of the great increase in travel, particularly among young people, and the very unwelcome increase in drug offences and he thought that it was 377 often in the best interests of young people who came into the country and soon after their arrival committed some offence, whether a drug offence or some other offence, that they should be sent back to the place from which they had come. On that I would only say that that may well be so. But, of course, the Home Secretary has his own discretion, whether or not there is a recommendation from the courts about deportation. He can always fall hack upon his non-conducive grounds and order that such a young person should be sent back to the place from which he came.
§ The second reason given by the noble Lord was that on these occasions the courts—and I take it that he included the magistrates' courts and the rest—take full account of all the relevant circumstances. I wonder whether that is really true. Suppose that a girl comes to this country and within a short time is convicted of shoplifting. Suppose that she does not speak the language and, when she comes up before a bench of magistrates, pleads guilty to that offence. If she is unrepresented—as very often these people are—does the noble Lord really believe that that court is able to go into all the questions involved in deciding whether that girl ought properly to be deported? Does he really think that happens in real life, and that the court knows what the impact of the deportation order is going to be upon that girl? Again, if the court makes a recommendation for deportation it still has to be reviewed by the Home Secretary. So what is gained by leaving it to the court to make a recommendation at all?
§ The third reason the noble Lord advanced to me in the letter was that if the power to recommend deportation were to be taken away from the courts they might be inclined to impose a heavier penalty than they otherwise would. I quite understand the force of this argument. If the court felt, "We cannot recommend deportation; this person is going to stay here, and in that event we must impose a heavier penalty because we are deprived of the opportunity of getting rid of the person altogether ", I would suggest that that is not a valid argument. If only provision is made whereby whenever a non-patrial is convicted before the courts of any offence the fact must automatically be reported 378 to the Home Office, the court which deals with the matter will know that the question of deportation will be considered by the Home Office, and will know that if it is a proper case for deportation, that is what will happen; and the court will know that it is under no obligation or need to impose a stiffer penalty than otherwise because a deportation order cannot occur. I suggest, therefore., that the reasons which have been advanced in support of the Government's case are not valid, not persuasive, and that is why I have seen fit to raise this matter again on this occasion. I hope that I shall again receive the assistance of the: noble and learned Lord. I beg to move.
§ LORD GARDINER
My Lords, I agree with the views which the noble Lord, Lord Foot, has expressed. He has expressed them at some length, and I do not propose to repeat any of them.
§ 6.12 p.m.
§ LORD ABERDARE
My Lords, I think it is quite impossible for me to convince the noble Lord, Lord Foot, of the justice of the Government's case, as I tried to do on the last occasion, without success, and as my noble friend Lord Windlesham has since tried to do by correspondence, again without success. We had a considerable debate on Committee stage on this point, and I cannot really go further than the arguments I advanced at that stage for this provision in the Bill.
If I may take the two cases separately, I will try again to explain what is in our minds. First, the first offenders. It is obviously perfectly right and proper that, as a general rule, a first offender should not be sent to prison. But I find it difficult to argue from this that he should not be liable to deportation. We discussed at Committee stage the need to allow a court to recommend deportation for a first offence, especially when it is an offence against the immigration laws. I think we should really make ourselves look ridiculous if, when a person is brought up on a charge against the immigration laws—say, illegal entry—the court is not allowed to recommend deportation simply because it is a first offence. I cannot understand how the noble Lord gets over that obstacle. There are other cases, not only illegal entry, in which the court might wish to recommend deportation of 379 an immigrant on a first offence. They are very rare, and it is even rarer for the Home Secretary to confirm such a recommendation. But we do not think it right to remove this power from the courts. I hope that the noble Lord will at least concede in the case of the first offender that there are powerful reasons for allowing this power to remain.
Now I come to the young offenders, where much the same argument applies. In this case we arc talking of young people between 17 and 21. It is again clearly right that in general they should not be sent to prison except in very exceptional circumstances. But surely it does not follow that, because a young immigrant aged 17 to 21 should not be sent to prison, he should not be liable to deportation. It seems to me that in many cases deportation is the right punishment, rather than any other; and to allow the court to recommend deportation seems to me to be a necessary and right step. The noble Lord, Lord Foot, himself quoted at the Committee stage the case of a German girl who was charged with shoplifting. He told us, and evidently with full approval, that the court had fined the girl £3 and recommended her deportation; and he agreed that this was a correct action. I assume that girl was in the age group 17 to 21, because these are the young offenders we were talking about. The court could not have taken this action if his Amendment had been carried: it could not in that case have recommended deportation of that girl.
We are not taking any new power. We are continuing to allow the court the opportunity to recommend deportation should this seem right to the court, either in conjunction with a penalty of some sort—for example, a fine—or without any penalty at all. And we believe that the court will be able to judge in the light of the circumstances. If it is unable to do so, it presumably will not make any recommendation. But if the court thinks this is the right answer to the offence committed, it will be able to recommend deportation. I cannot see anything unreasonable in that. I certainly agree that it is re-examined by the Secretary of State, and that also seems to me to be an added reason, that there are two hoops to go through before the person is actually deported. I think it is much 380 better in these cases to leave it first to the discretion of the court—which will make a reasoned recommendation—and subject to the confirmation of the Home Secretary. I hope that I have at least made clear the way we see this clause operating, as the practice has always operated in the past, and although I am sure I am not able to convince the noble Lord, I hope that he will at least withdraw the Amendment.
§ LORD FOOT
My Lords, I shall not withdraw the Amendment, though I shall not press it to a Division. I feel that we are talking at cross-purposes. I have never said that a young offender or a first offender should not be liable to deportation. The noble Lord twice attributed that to me. I have never said anything of the kind. I have merely said that the decision whether the first offender or young offender, who cannot be sent to prison, should be deported or not should be the decision of the Home Secretary and not a recommendation by the court.
Nothing would be lost by acceptance of this Amendment except that in those particular cases the courts would be deprived of the right to make a recommendation one way or the other. There would be no possibility of the case being overlooked by the Home Office if, in cases of this kind, every court was under an obligation, on the conviction of such a person, to report it to the Home Secretary, and he could then decide the matter in his own discretion. That would have the enormous advantage that the matter could be considered at leisure. It could be considered by people who are peculiarly capable of making a decision of this kind; nobody could be better at it than the Home Office. It would also allow for proper representations to be made by the party concerned as to the effect of deportation in that particular case, whereas if it is left to the court to recommend deportation, possibly on the slightest information, there is no regulation that I know of that compels the court to take particular factors into consideration. And once the court has made a recommendation for deportation, possibly wrongly, it is very difficult, certainly embarrassing, for the Home Office to reverse the court's recommendation and say that nevertheless the person may stay. Those are the reasons why I am afraid I am not 381 persuaded by the argument, and I am unwilling to withdraw the Amendment.
§ On Question, Amendment negatived.
§ Clause 7 [Exemption from deportation for certain e. visting residents]:
§ 6.20 p.m.
LORD DENHAM moved Amendment No.43:
Page 9, line 17. leave out ("end of July 1971") and insert ("coming into force of this Act")
§ The noble Lord said: My Lords, this Amendment and Amendment No.79 seek to provide that the date on which a Commonwealth or Irish citizen must have been ordinarily resident or settled in the United Kingdom, in order to benefit from certain safeguards in the Bill, shall be the date of coming into force of the Act, rather than July 31,1971, which is the material date under the Bill in its present form. I beg to move.
Page 9, line 21, leave out ("end of July 1971") and insert ("coming into force of this Act").—(Lord Denham.)
LORD DENHAM moved Amendment No.44:
Page 9, line 23, at end insert (", (b)").
§ The noble Lord said: My Lords, with your Lordships' permission. I should like to speak to Amendments Nos.45 and 46 as well as this Amendment. In Committee, the noble Lord, Lord Brockway, questioned whether it was right to require people to have been continuously ordinarily resident in the United Kingdom from the coming into force of the Bill up to the time that deportation came into question, no matter how long that period might have been. The Government were not able to accept the noble Lord's Amendments which, for example, proposed to extend exemption to aliens, who have never been exempt from deportation by virtue of length of residence in the United Kingdom. But these Amendments make a limited concession by providing that a Commonwealth or Irish citizen who is ordinarily resident here at 382 the coming into force of the Bill is to be exempt from deportation if he has been continuously so resident for the preceding 5 years. I beg to move.
§ LORD BROCKWAY
My Lords, I rise just to say that I want to acknowledge the way in which these Amendments meet the point which I raised in Committee. I have had a very generous letter from the noble Lord, Lord Windlesham, in this respect, and I am pleased to support the Amendments now.
Page 9, line 25 leave out from first ("years") to ("been") in line 27.—(Lord Denham.)
Page 9, line 31, leave out from ("years") to ("been") in line 33.—(Lord Denham.)
§ Clause 9 [Further provisions as to common travel area]:
§ 6.24 p.m.
LORD KILBRACKEN moved Amendment No.48:
Page 12, line 15, at end insert ("unless they are citizens of that Republic").
§ The noble Lord said: My Lords, Clause 9 is concerned with further provisions regarding the common travel area. Your Lordships will know that the common travel area is set up under Clause 1. It comprises the United Kingdom. the Channel Islands, the Isle of Man and the Republic of Ireland. It lays down that travel shall, in effect, be free within that area. In other words, persons arriving, let us say, in this country from the Republic of Ireland do not require leave to enter, and because they do not require leave to enter do not require work permits and do not have to register with the police, or whatever procedure is substituted as a result of the Government's new position.
In Clause 9 the position is considered also of those nationals who come into this country from another part of the common travel area but having entered
that other part of the common travel area from some other country. This is obviously necessary because otherwise if an alien or a Commonwealth citizen, or any one at all, chose to fly to Dublin he would then be able, under Clause 1, to come on to London and enter without seeking leave, and be completely free of all subsequent control. So we have in Clause 9(2) the following proviso:
Persons who lawfully enter the United Kingdom on a local journey from a place in the common travel area after having either—
(a) entered any of the Islands or the Republic of Ireland on coming from a place outside the common travel area; … if they are not patrial … shall be subject
to the same restrictions, more or less, as someone coming from outside the common travel area.
§ My objection to the wording of this subsection is that the provisos in Clause 9(2)(a) apply also to nationals or citizens of the Republic of Ireland. What, in effect, this means is that if any Irish national has ever been out of the Republic of Ireland (to take the language at its most literal, if he had gone ten years earlier on a weekend to Lourdes, or the year previously had taken a holiday in France), then he will have entered the Republic of Ireland on coming from a place outside the common travel area. Whether this happened the previous day, the previous year, or ten years ago, the very fact that he has left the Republic of Ireland and has then re-entered it means that he loses the privileges (and they must be regarded as privileges) that are granted to anyone else coming from the Republic of Ireland who has remained in Ballyjamesduff, or wherever it may be, all his life.
I cannot believe that this is the intention of the Government. Indeed, I have been assured unofficially that in such cases, where a citizen of the Republic has at some previous stage left the Republic and returned, and then come on here, he will will still not require leave to enter the United Kingdom. However, if that is the case, I cannot see any reason why it should act be included in the Bill. It may be said that it has not been the practice of the Government ever to refer to, or speeify, nationals of a particular country; but surely in this instance the circumstances are rather
different, because Clause 9(2)(a) specifically refers to the Republic of Ireland and is about that Republic. Therefore, if this makes it necessary to exclude from the provisions citizens of one particular country, then that should be done. If my Amendment were accepted by the Government, then the passage in question would read:
Persons who lawfully enter the United Kingdom on a local journey … having either-—
(a) entered any of the Islands or the Republic of Ireland unless they are citizens of that Republic on coming from a place outside the common travel area … if they are not patrial … shall be subject
to the restrictions, et cetera. I cannot see that there is anything objectionable in this. The wording of the Bill, as it is at present, is really a nonsense, and I hope that the Government may find it possible to accept the Amendment that I am proposing.
§ LORD DENHAM
My Lords, there is no difference in intention between the noble Lord, Lord Kilbracken, and Her Majesty's Government—only in method. It is in fact my right honourable friend's intention that the order which he will make in due course under Clause 9(2) in relation to people coming from the Irish Republic should apply only to aliens and Commonwealth citizens, and not to citizens of the Republic itself. To do otherwise would be inconsistent with the position of the Republic as a part of the common travel area, and would put a citizen of the Republic who had never been outside its territory in a more favourable position on entry to the United Kingdom than one who had previously travelled overseas, which would be ridiculous. But the Government take the view that the right place to make this distinction between Irish nationals and others subject to United Kingdom immigration control is in the order to be made under Clause 9(2), rather than in the Bill itself, which in other respects makes no distinction between nationals of particular countries, but gives a general authority in Clause 3(2) for such distinctions to be drawn in subordinate legislation and in the immigration rules. Under Clause 9(7) the order will be subject to Parliamentary control through the Negative Resolution procedure. In view of this assurance about the order which 385 my right honourable friend will make, I hope that the noble Lord will not press his Amendment.
§ LORD KILBRACKEN
My Lords, I am grateful to the Minister for his reply. As I said. I should far rather see it in the Bill, but in view of the completely categorical assurance that the noble Lord has given on the point, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 6.32 p.m.
LORD WINDLESHAM moved Amendment No.49:
Pane 12, line 38, after ("if") insert—("either—
(a) he is on arrival in the United Kingdom given written notice by an immigration officer stating that. the Secretary of State having issued directions for him not to be given entry to the United Kingdom on the ground that his exclusion is conducive to the public good as being in the interests of national security, he is accordingly refused leave to enter the United Kingdom; or (b)")
§ The noble Lord said: My Lords, under Clause 1(4) travel within the common travel area, consisting of the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland, is not subject to control and a person arriving from within the common travel area does not require leave to enter the United Kingdom. This Amendment will make an exception to this general rule by amending Clause 9(4) so as to provide that a person who is not patrial may not in virtue of Clause 1(4) enter the United Kingdom without leave on a local journey from within the common travel area, if he is on arrival in the United Kingdom given written notice by an immigration officer stating that he is refused leave to enter because the Secretary of State has issued directions accordingly on the ground that the person's exclusion is conducive to the public good as being in the interests of national security.
§ The need to amend the Bill in this way has come to notice at a late stage. Some weeks ago one of the most promiment leaders of the I. R. A. sought to enter the United Kingdom from the Republic of Ireland and the Secretary of State directed that he be refused admission. There is power under Section 2(4)(c) of the Commonwealth Immigrants 386 Act to refuse admission to a Commonwealth or Irish citizen if his admission would, in the opinion of the Secretary of State, be contrary to the interests of national security. This was the first occasion since the passage of the Act of 1962 on which admission has been refused to an Irish citizen coming direct from the Republic, but the Secretary of State considered that the public interest required refusal of admission in this case and gave directions accordingly. The uncontrolled travel within the common travel area is under the present law merely a matter of administrative arrangement, and that is why the power to refuse admission under the Act of 1962 extends to people arriving here from within the common travel area. But under the Bill the position is different, in that Clause 1(4) provides for travel within the common travel area to be free of control. It had not been foreseen that there might be need to refuse admission to a person coming from within the common travel area, but noble Lords will, I believe, agree that the recent case to which I have referred has brought the need to light and the Government have accordingly tabled this Amendment.
§ The Amendment will apply to any person who is not a patrial, whether he is an alien, a Commonwealth citizen or a citizen of the Republic of Ireland; and it will apply whether he arrived in the United Kingdom from Ireland or from one of the Channel Islands or from the Isle of Man. The Amendment applies only to the rare case where exclusion is conducive to the public good as being in the interests of national security, and assurances have been given to the Government of the Republic of Ireland to the effect that there is no intention of introducing any general control over travel within the common travel area. my Lords, I beg to move.
§ Clause 11 [Construction of references to entry, and other phrases relating to travel]:
LORD DENHAM moved Amendment No.51:
Page 14, line 6, at end insert—
(' (2A) Except in so far as the context otherwise requires, references in this Act to arriving in the United Kingdom by ship shall extend to
arrival by any floating structure, and "disembark" shall be construed accordingly; but the provisions of this Act specially relating to members of the crew of a ship shall not by virtue of this provision apply in relation to any floating structure not being a ship.")
§ The noble Lord said: My Lords, the need for this Amendment arises from the fact that there are some kinds of oil rigs which are not "ships" within the meaning of the Bill but which are capable of being towed by a ship. The provisions of the Bill for the examination of persons arriving in the United Kingdom at present apply only to those arriving by ship or aircraft: this Amendment has the effect of extending them to anyone who might be carried on an oil rig (or any other kind of floating structure) which was towed into a United Kingdom port. This may seem to your Lordships rather fanciful, but I am assured that it is necessary for the purposes of the Bill. My Lords, I beg to move.
§ Clause 13 [Appeals against exclusion from United Kingdom]:
§ 6.37 p.m.
LORD FOOT moved Amendment No.52:
Page 15, line 5, leave out subsection (3)
§ The noble Lord said: My Lords, so far as I can see, this is the last time that I am going to burden your Lordships with anything more than a formal intervention. This Amendment is in similar form to the Amendment that I moved in Committee, and I think it is a matter of considerable concern. The effect of Clause 13(3) is that certain classes of persons, with whom I shall deal in a moment, who are refused leave to enter the country cannot appeal against that decision until they have removed themselves from this country. They have to go away before they can initiate an appeal. There are two classes of persons involved: the first class is persons who claim to have patriality under the provisions of paragraphs (c) or ((I) of Clause 2(1) and who do not have a certificate of patriality; and the second 388 class is the non-patrial who seeks to enter the country but has not armed himself with an entry clearance or a work permit.
§ If I may give two examples of those two classes, in the first class there is the patrial under Clause 2(1)(c) who is a United Kingdom citizen, who has acquired patriality by five years' continuous residence in this country. If such a person goes abroad on holiday and fails, by inadvertence, to arm himself with a certificate of patriality before he goes—possibly because he does not know that one is required—or, perhaps having acquired one, loses it while abroad, and then comes back to this country and presents himself to the immigration authorities, he will be examined by the immigration officer. Then, if the immigration officer is not satisfied that he is indeed the person he pretends to be and is a patrial, that person must go out of the country before he can initiate an appeal.
§ My second example, which is of the second class, is that of the dependant of a person who is resident in this country and who is settled here—the son of a Pakistani, or somebody like that—who comes to this country in order to join his father and who has failed, again possibly through ignorance or inadvertence, to arm himself with the requisite entry certificate in his country of origin, or perhaps who had an entry certificate and then, in the course of the passage, mislaid or lost it. What the clause says is that if, in his wisdom, the immigration officer is not satisfied, having examined that person, that he is a genuine dependant but has acted out of ignorance, or that he has lost his certificate, then that person has to go away, and almost inevitably go back to the place from which he has come, which may be half way round the world, before he can initiate an appeal against that decision. One can easily imagine cases of the gravest possible hardship where a dependant has perhaps saved up money over a period of years in order to make the journey to this country to join his parent or parents and then has to go all the way back again. It may be impossible for him ever again to raise the money to get back into this country and rejoin his family; or so much time may have been lost that he may have exceeded the age of 16 years by the time he makes his appeal, in which 389 case, of course, he will have lost the right to join his parents in this country at all.
§ LORD FOOT
My Lords, I am not sure of the relevance of that question, but if he is, say, somebody coming from India, he would have an Indian passport. I do not know quite what the significance of that is; but, anyway, those are two examples. Perhaps there is a third example I could quote, and that is the case of the student or the visitor to this country who comes here having made the mistake of not arming himself with an entry clearance. He, again, after examination by the immigration officer, and if the immigration officer is not satisfied of his genuineness, is obliged to go out of the country before he can initiate an appeal. This, of course, can give rise to considerable hardship, as I have no doubt your Lordships will agree. Not only can it give rise to hardship, but that hardship can be very uneven in its incidence. Take, for example, the case I quoted just now of the patrial who has acquired patriality by five years' residence in this country as a United Kingdom citizen, who goes on a holiday abroad and is then refused entry when he tries to get back again. If he is well-to-do he is not confronted with any very serious problems, because all he has to do is to go back to Paris for a few days, initiate an appeal there, and perhaps the whole thing can be put through quite easily. But what about the person who is not well-to-do and who has not got access to legal advice and legal assistance; for example. the student who is sent back to Ostend because he is not armed with the necessary papers?
When I raised this matter in Committee the noble Lord, Lord Windlesham, was good enough to give me a careful and comprehensive reply, and with many of the points he made I agree. He pointed out, first of all, that in the case of a person wanting to come into this country, certainly if he is a dependant of somebody who is already settled here, the requirement that he should obtain an entry certificate in his country of origin was set up under the 1968 Act and has been in operation now for more 390 than two years. He pointed out—quite rightly, too—that under the 1969 Act such a person, if he fails to arm himself with an entry certificate before coming to this country, is liable to be sent out of the country before he can initiate an appeal. Therefore, the noble Lord is perfectly right in saying that there is nothing new in applying to patrials the principle that you can initiate an appeal only after you have left the country. I entirely accept that. The noble Lord also said that there were advantages in this system of having an appeal dealt with out of the country; in having an appeal dealt with, in most cases, when the person applies for an entry certificate in his country of origin and is refused, or when a patrial applies for a certificate of patriality outside the country and is refused. There are advantages in that. I know all about that, and I accept it all.
Then the noble Lord said that if we altered it all, if we went back to the old system or to what was recommended by the Wilson Committee—that is to say, that all the appeals against refusal of entry should be heard here at the ports of entry—it would impose an almost impossible strain upon the Immigration Service, especially at times when large numbers of people were coming into this country, and particularly, of course, in the summer months. That, too, I quite understand. Then the noble Lord said that the number of cases of people coming here without, through inadvertence, the necessary documents is likely to be very small, so the number of cases of hardship is also likely to he very small. With that, also, I agree. But when we came to the end of the debate, as the noble Lord may remember, there were one or two Members of your Lordships' House who agreed with me—and I think the noble Lord the Minister agreed, too—that when everything had been said there would nevertheless be a residuum of cases of grave hardship among people who failed to arm themselves with the necessary certificate; there would be this residuum of a small number of cases where grave hardship might ensue.
In moving the deletion of this subsection requiring people to go back to their own country, or to go out of this country, before they initiate an appeal, I 391 realise that my Amendment is quite unacceptable to the Government, but I have a suggestion to make which I should like the noble Lord to consider. In order to try to avoid the hardship in these few cases—and I think the noble Lord agrees that they will occur, however hard we try—would the noble Lord be prepared to consider an amendment of this clause to the effect that such a person refused leave to enter by an immigration officer should have the limited right of appeal to an adjudicator, on the ground that his case is a case of extreme hardship? The adjudicator could then decide that simple preliminary issue: is this a case in which, if the law was enforced and this person was sent back. perhaps half way across the world, there would be grave hardship? If the Government could go as far as that.. I suggest it would greatly reduce the chances of these hard cases arising. and it would not be an infringement of the general principle of appeals being initiated from abroad.
My Lords, may I, in one or two sentences, raise a subsidiary point with which I am particularly concerned? As the law now stands, as we know, once an immigration officer has refused such person as I have been talking about 'the right to come into the country at the port of entry, he is usually sent straight back on the next boat or the next plane, as the case may be. As the Minister knows, the United Kingdom Immigrants Advisory Service, of which I am the chairman, is a body whose first purpose is to advise and assist people who are refused entry into this country, and to assist them particularly in the appeal procedure. I have a request which I have been asked to make by my council. In the case of a person who is refused entry and sent back immediately to the country of origin, would the Government be prepared to consider making some regulation or giving some instructions whereby that person should be put in touch with our Service before he is sent out of the country, in order that we can take his instructions here for the presentation of his appeal if later he initiates an appeal in his country of origin? That is a separate point, but I thought this an appropriate occasion on which to put it to the Minister. I beg to move.
§ LORD SAINSBURY
My Lords, I rise briefly to speak on this Amendment because I know the grave anxiety that is felt by the overseas student bodies about Clause 13(3).
§ LORD WINDLESHAM
My Lords, I am sorry to interrupt the noble Lord. I quite accept that the position of students does arise here and also the general point raised by Lord Foot; but we have a specific Amendment (No.53A) in the name of Baroness White which is entirely about students, and it might perhaps he better to keep the discussion on students separate from the questions raised by the noble Lord, Lord Foot.
§ BARONESS WHITE
My Lords, I was going to ask the noble Lord whether he would prefer it that way or whether we should discuss the whole situation on Lord Foot's Amendment.
§ LORD WINDLESHAM
My Lords, I think it will be convenient to take them separately. The noble Lord, Lord Foot, raised this question and then two completely new aspects of the matter—and I am not complaining about that—upon which I can comment. If I have to speak about students as well I think I should detain the House unnecessarily.
§ Lotto AVEBURY
My Lords, I would add one word to what my noble friend Lord Foot said and with which I agree. I do not understand why there should be no appeal under Clause 2(1)(c) because if a person has merely neglected to obtain a certificate of patriality and has been living in the United Kingdom for five years, this factor should be easy to ascertain. The immigration officer, by making inquiries at the port of entry, would be able to verify whether he had grounds for remaining in the country. I know that there are greater difficulties under Clause 2(1)(b) because it has happened in the past that a person arrives and says that his father lives in Birmingham and that his father is called so-and-so. Considerable difficulty then arises in tracing the parent and verifying the relationship which has been claimed. I can see that there are greater difficulties under Clause 2(1)(b) notwithstanding that I accept what my noble friend has said about the question of hardship. But on Clause 2(1)(c) the matter appears to be so simple that I cannot understand why it is mentioned in this subsection at all.
§ LORD WINDLESHAM
My Lords, The noble Lord, Lord Foot, raised this point on Committee. I gave a full reply then and he has abbreviated what I shall say now by picking out the main lines of my argument. I think that it must have satisfied him because at the end of what lie said just now he accepted that to delete this clause would not be practicable. Granting an appeal on the spot to all passengers, which in many cases in an attractive concept, is not practicable in certain circumstances.
I did not have advance warning of his alternative suggestion; it was not on the Marshalled List and I addressed my mind to what was on the Marshalled List. My instinctive reaction would be to say that it is very difficult to give selective rights of appeal because then judgments have to be made as to which are the hard cases and which are not. I think that either you grant a right of appeal to everyone in a particular category or not. To break it down would be difficult, but I will look into the point with our advisers; and knowing Lord Foot's close interest in this matter perhaps I could then communicate with him.
On the separate point of the access by counsellors of the United Kingdom Immigrants Advisory Service to people who are refused entry at the ports, this is a matter we have been considering. I have sent a letter to-day to the United Kingdom Immigrants Advisory Service which sets out the Government's position on this matter. I think that I ought now to return to the substance of the Amendment.
§ LORD FOOT
My Lords, I am quite content with the noble Lord's answer so far as it has gone. I will of course, withdraw this Amendment. I agree that it is a quite inappropriate Amendment. I am satisfied with the assurance the noble Lord has given that he will look at my impromptu suggestion as to appeals in cases of special hardship. If he will look at that I am quite content to leave the matter there.
§ Amendment, by leave, withdrawn.394
§ LORD WINDLESHAM
My Lords, Amendment No.53 is consequential on Amendments Nos.8 and 15. I beg to move.
Page 15, line 7, after ("above") insert ("or any reference thereto in section 2(1A)").—(Lord
§ 6.58 p.m.
BARONESS WHITE moved Amendment No.53A:
Page 15, line 12, at end insert ("or could prove acceptance as a student by a recognised education establishment in the United Kingdom").
§ The noble Baroness said: My Lords, I have already sent an apology to the noble Lord, and I apologise to the House for having put down this Amendment so late. I must also say that in my desire to get it on the Marshalled List before the House rose last night I find that I used a form of words not consonant with the form of words used in the rules in Cmnd.4606, paragraph 18. Instead of "recognised educational establishment", I should have used the phrase "bona fide educational institution ". I should be happy to correct the phraseology if that is preferred by Her Majesty's Government. The meaning is the same.
§ I put down this Amendment because I have been approached by the National Union of Students who are very much concerned by the small number of students—it is a small number, but there are some—who may come to this country, having been accepted as students by a university or college, but who have not obtained the necessary entry certificate before leaving their home country. It is pointed out that if they are not allowed to appeal until they have returned home this is really a situation of considerable hardship. Your Lordships will be aware of the difficulty of confirming that one has entrance to an establishment of further education. The time lag between obtaining that confirmation and getting the necessary entry permit is, in certain countries, considerable. The student must decide: does he miss the beginning of the academic year or take a chance of coming without the necessary certificate feeling that he is sufficiently armed if he has papers to prove that the educational establishment concerned has accepted him 395 as a student. Your Lordships will appreciate that we are not suggesting that all students in such circumstances must necessarily be admitted. All we are asking is that they should be given a chance of adequate appeal facilities while they are still in this country and should not have to be sent home before they can make the appeal.
If your Lordships look in the White Paper, Cmnd.4606 (paragraphs 18 to 21), at the rules concerning students, you will see that among other things in assessing the case immigration officers should consult such points as
… whether the passenger's qualifications are adequate for the course he proposes to follow.
The National Union of Students points out that immigration officers, as such, are not competent to do any such thing. If one may take an extreme example, suppose Einstein had come to this country, instead of accepting the position of first Professor at the Institute of Advanced Studies at Princeton. His knowledge of mathematics and physics would, I think we shall all agree, have been exceptional. But I do not know whether his command of English would have been regarded by an immigration officer as sufficient. All I am arguing is that while in respect of certain courses a command of English is of course essential, for others it is much less necessary, provided that one has other qualifications. The National Union of Students has told me it is not happy that there should be a testing of a person when he arrives in this country, if there is any dubiety about his position, by someone who is not necessarily familiar with the requirements—linguistically for instance—of the particular course concerned.
§ I know that there has been a long correspondence with the Home Office about this. At this late hour I do not wish to weary your Lordships by going through it, but among other things the National Union of Students has pointed out that if someone comes a very lengthy journey by air and arrives here, a foreign country, tired and upset. as may well be the case, and is then asked to prove his ability in the use of the English language, he is not in the best condition to do so. What the Union suggests is that the normal pattern should 396 be that the man should be allowed into the country for a limited period of time to see how he gets on. That would give time for discussion with the educational establishment which accepted him in the first instance, one can only assume, using their judgment of whether he was qualified to take the course. I believe that in practice the number of persons who would be covered by this would not be very large. But there are cases and what we are asking for is that this category of students who prove that they have been accepted at an educational establishment should be added to those who will not be sent back home before they have a right of appeal. My Lords, I beg to move the Amendment.
§ THE DEPUTY CHAIRMAN OF COMMITTEES (BARONESS EMMET OF AMBERLEY)
My Lords, if it is your pleasure, Amendment No.53A will now read:Page 15, line 12, at end insert ("or could prove acceptance as a student by a bona fide educational institution in the United Kingdom.")
§ BARONESS SEEAR
My Lords, I should like strongly to support the Amendment moved by the noble Baroness, not so much from the point of view of the students, interested though one obviously is in them, but from the point of view of the educational institutions—if I now have the term right. As it is, students from overseas are apt to dribble in late, and if we introduce legislation which encourages them to do so, and increases the number of late entrants, the exasperation already caused will be considerably enhanced. I very much hope that we shall be able to accept the Amendment.
§ LORD SAINSBURY
My Lords, if I may resume my few brief words, I most strongly support every word that has been said about these few cases where there may be genuine hardship for students who have places at a technical college or university. A student may be un-sponsored by Government and have saved up for years to pay his fare, and the tragedy that it would be if that individual were sent home and had to start all over again does not need underlining. I feel most strongly that if we could deal in a humane way with this small minority of cases it would be worth while.
§ 7.5 p.m.
§ LORD WINDLESHAM
My Lords, I ought to begin by apologising to the noble Lord, Lord Sainsbury, for having cut him off in mid-stream, but I think it is a help to our proceedings if we take these subjects one by one. There have been recent instances which have given rise to concern on this matter, and my Department is well aware of the importance attached to it by the National Union of Students and others in the educational world. At the same time, it is important that the occasional occurrence of such cases should not give a false impression. We admit something like 16,000 Commonwealth students a year, and in the great majority of cases no difficulty has arisen. Students are advised to obtain entry certificates from the appropriate British representative overseas before setting out on their journey, and where they do so it is exceptionally rare for any subsequent difficulty to arise. If it does, and admission is refused to a student, he has a full right of appeal in this country before removal, including the right to take his case to the Tribunal without leave if the adjudicator dismisses his appeal. Every effort has been and will continue to be made to publicise the entry certificate facility.
What we have to do is balance the rights of genuine students, which are what we have been talking about, with the attempts of those who are determined to evade the immigration control. Unfortunately, this is one of the two main avenues of evasion. Given the intensive pressure for people to come to the United Kingdom from certain countries in the Commonwealth for settlement and work it is not surprising that some whose real intention is to settle here permanently in employment should try to enter in the guise of students. Immigration officers are constantly on their guard against this method of evading the control on entry, and one consequence is that the reduction in the number of employment vouchers in recent years has led to a considerably increased pressure for entry from bogus students. It is not easy for people in this country to believe that Commonwealth citizens who on paper may have quite respectable educational qualifications may in reality be concerned with obtaining a job here in a factory; and that such persons will pay, 398 and in many cases do pay, substantial sums to organisers of this sort of traffic in order to obtain entry in the guise of students. Unfortunately, it is a fact that there have been numerous cases of this kind.
Educational establishments in this country vary very greatly in their attitude towards the acceptance of students from overseas, but commonly they do inquire into the educational attainments of the person and ask for a deposit or other advance of fees. But these precautions are no real safeguard against evasion. If the passenger is clearly incapable of benefiting from the course of study given, for example in the English language, this might suggest that his true purpose is settlement and not study; and in cases of this sort, and others, educational qualifications may be, and sometimes are, based on forged evidence. But even a student who could benefit from study here may in reality intend settlement, and if he is once admitted it is by no means easy for the Home Office to follow up his case and take the appropriate action should he enter employment without approval.
So, my Lords, it is against this background, which I feel I should put before the House (this is an aspect of the matter that has not so far been mentioned in debate), that immigration officers have to carry out their examination of passengers coming here to study from certain parts of the Commonwealth. Their task is undoubtedly a difficult one. It is not made any easier by the laxity of some educational establishments in scrutinising applicants from overseas. Every effort is made to ensure that educational examinations are carried out by qualified people. The point of difficulty is whether in fact the passenger would benefit from a course of study. I am informed that every effort is made to obtain an assessment by an educational expert before removal is decided upon, but of course the question only arises in cases where a student has not obtained an entry certificate. Where he has applied for an entry certificate, this aspect can be gone into thoroughly before he sets out on his journey and can if necessary be the subject of an appeal.
Apart from these practical considerations, to which we are bound to give 399 some weight, the Amendment would mean departing from the general principle that only those with an entry clearance or work permit have a right of appeal before removal. To make an exception of this sort to the general principle would be difficult to justify at this stage of the Bill. Further, the somewhat lax attitude of some educational establishments, as I have said, means that acceptance for study in this country is not a sufficient indication of bona fides to justify giving a right of appeal before removal. It is considerations of this sort that have led us to the conclusion that it really is much better to adhere to the entry certificate procedure.
At the moment we are in the course of further discussions with the educational authorities to try to make this even more clear than it is at the moment in the advice given by educational establishments to applicants from overseas. If there are going to be difficulties—we learned this lesson so painfully in India where there was a grave problem in the late 'sixties—the time to resolve them is before the student starts to travel half way across the world and not in a last moment wrangle at the airport.
§ BARONESS WHITE
My Lords, I think it is valuable that we should have ventilated this matter. At this stage I do not propose to take the Amendment to a Division, but I hope that, following our debate, the noble Lord will see that wherever possible administrative steps will be taken to make sure that our representatives in Commonwealth countries, who are responsible for the issuing of certificates, will speed this up so far as possible and have available all the apparatus of reference. We all know this problem, because it is difficult even for our own students to find out whether or not they have been accepted for courses a reasonable time ahead. I hope that we shall have a most careful scrutiny of the administrative pattern here on current entry clearance. I understand that there will be further discussions with the National Union of Students on the question of the qualifications of those who take on themselves to decide whether or not a purporting student is really able to follow a course. Having made those observations on the remarks of the noble 400 Lord, I ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
Page 15, line 14, leave out ("if it appears") and insert ("by the adjudicator if he is satisfied").—(Lord Windlesliam.)
Page 15, line 16, leave out ("if it appears") and insert ("by the adjudicator if he is satisfied").—(Lord Windlesham.)
§ Clause 15 [Appeals in respect of deportation orders]:
LORD WINDLESHAM moved Amendment No.60:
Page 17, line 14, at end insert ("unless the appellant shows that the statement was not so made by him or by any person acting with his authority and that, when he took the benefit of the leave, he did not know any such statement had been made to obtain it.")
§ The noble Lord said: My Lords, I was heartened to hear that this Amendment has the complete support of the noble Lord, Lord Foot. There is a certain amount I could say by way of explanation. Amendment No.61, in the name of the noble Baroness, Lady White, is an Amendment to this Amendment. If the noble Baroness would like to debate this point, perhaps she would care to give me an indication and then I can give a full explanation. If she does not intend to do so, I could deal with the matter in a second or two. I beg to move.401
BARONESS WHITE moved Amendment No.61 as an Amendment to Amendment No.60:
Line 3, after ("that") insert ("unless he was then a minor").
§ The noble Baroness said: My Lords, I should like to speak to my Amendment, because I am concerned that we should think carefully about the position of a child or young person about whom a statement may have been made, without his authority but with his knowledge. when he was entering this country. There might be a situation in which a young person under 18 came here from India or Pakistan and might have been present when his uncle declared that he was his son and so obtained his entry. Can we really expect this child to contradict his uncle in the presence of the immigration officer and say that he is not his son, but only his nephew? It was to make this point that I put down this Amendment. I was concerned about the phrase used earlier, "by any person act-ting with his authority." At what age can a person be said to be giving his authority? A number of cases occur when youngsters of 14 or 15 are brought into this country and are claimed to be closer relatives than they are to the family concerned. But is it realistic to say that at that age these youngsters have given their authority? They would not be liable in the courts in this country at this age, I understand, and even if they knew that a false statement was being made, could they be expected to contradict it in the circumstances? I beg to move.
§ LORD WINDLESHAM
My Lords, we had a long discussion in Committee of this difficult question of what happens when a statement is made on behalf of a wife or child by somebody with a view to deceiving an immigration officer; as a result of that statement the person is admitted as a dependant; and subsequently the deception is discovered. Can that statement be regarded as an estoppel? The noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Foot, spoke strongly on the point, and as a result of their criticisms I undertook to look at this matter again during the Recess. This I did. The Government Amendment, which has commended itself to the noble Lord, Lord Foot, brings the 402 provisions of the Bill into line with the Common Law doctrine of estoppel. The Bill, as drafted, went further. I explained then why it was felt necessary to go further, and I do not think I should rehearse those arguments again. The Government now propose to place the Bill on ail fours with the Common Law doctrine of estoppel.
The noble Baroness has raised the question of minors, and I think we should finish the job off properly by going along with her. I am told that the words would perhaps come better elsewhere in the clause, and if the noble Baroness would be willing to withdraw the Amendment now, I should be happy to accept it, in principle, and to ask the Government draftsman to have a look at the words, and particularly the positioning of them. I think we may feel at any rate that we now have a properly defined doctrine.
§ BARONESS WHITE
My Lords, I am most grateful to the noble Lord for that concession. I feel that it is right, although I was thinking imaginatively of a child in those circumstances. With that assurance, I beg leave to withdraw the Amendment.
§ Amendment to the Amendment, by leave, withdrawn.
§ Clause 25 [Assisting illegal entry, and harbouring]:
§ 7.22 p.m.
LORD WINDLESHAM moved Amendment No.66:
Page 25, line 36, after ("then") insert ("subject to subsections (6A) and (7) below '').
§ The noble Lord said: I beg to move Amendment No.66, and with that Amendment, with your Lordships' permission, I should like to take Amendments Nos.67 and 68. Clause 25(6) provides that where the owner or charterer of a ship, aircraft or vehicle, or the captain of an aircraft, is convicted on indictment of assisting illegal entry the court may order the forfeiture of the ship, aircraft or vehicle. But Clause 25(7) provides that the court shall not so order where a person claiming to be the owner, or otherwise interested in the ship, aircraft or vehicle, applies to be heard by 403 the court unless an opportunity has been given to him to show cause why the order of forfeiture should not be made.
§ The provision for forfeiture has attracted criticism, in particular from the shipping interests who maintain that it is wrong for a large ship to be liable to forfeiture because the captain has been engaged in bringing in small numbers of illegal entrants without the knowledge of the owners. Similar views have been expressed about the liability of large aircraft to be forfeited.
§ Noble Lords will remember that in Committee the noble Lord, Lord Macpherson of Drumochter, who apologised to me earlier on that for personal reasons it was unlikely that he could be present for the debate this evening, moved an Amendment providing that ships of more than 500 tons should not be liable to forfeiture unless the bringing in of illegal entrants was the substantial object of the voyage. In reply, I explained why that Amendment was not acceptable, but that I would undertake to study the position further with the object of agreeing an Amendment with the United Kingdom Chamber of Shipping. These consultations have taken place between officials of the Home Office and the Chamber of Shipping, and I understand that these Amendments, which substantially meet their point of view, are acceptable to them.
§ In accordance with these Amendments, a ship or aircraft cannot be forfeited unless the ship is of less than 500 tons (or the aircraft is less than 5,700 kilogrammes operating weight) or it is the owner who is convicted of assisting illegal entry, or the ship or aircraft has been used for bringing more than 20 illegal entrants at one time and the intention to bring them is known to the owner or could by the exercise of reasonable diligence have been discovered by him. What this comes to is that a large ship or aircraft can be forfeited only if it has been engaged in substantial carriage of illegal entrants, and if the prosecution also show that the owner must have been closing his eyes to what was going on. As a footnote, I should add for the record that in all cases hovercraft are to be regarded as large aircraft for this purpose. I beg to move.404
§ LORD BROOKE OF CUMNOR
My Lords, when the noble Lord. Lord Macpherson of Drumochter, brought forward this matter on the Committee stage I supported him, and I think on that occasion he was acting on behalf of the noble Earl, Lord Lauderdale, who was unable to be present. I seem to have been the lucky one to be present on both occasions. I supported the noble Lord, Lord Macpherson of Drumochter, on the Committee stage because I thought he had a good point. I should therefore like, on my own behalf—and I also believe, on behalf of the noble Lord, Lord Macpherson of Drumochter—to express thanks to the Government for the trouble they have taken about this matter, for the consultations that they have had with the shipping industry during the Recess, and for bringing forward these Amendments, which seem to me to meet the substance of the point that was raised.
§ THE EARL OF LAUDERDALE
My Lords, may I just add, particularly since I was unable to be present when this Amendment was moved, thanks on my own behalf, on behalf of those of my noble friends who supported the Amendment and above all, on behalf of the Chamber of Shipping who originated it in the first place. We much appreciate the great attention that the noble Lord has given to this, and not least the fact that, thanks to this Amendment being re-presented in the present form, we are spared the danger of other countries copying what seemed to some of us a very unsatisfactory provision as we originally had it in the Bill. My thanks therefore are not gratitude as a species of revenge but "thanks as fit a King's remembrance".
Page 25, line 38, after ("subsection") insert ("(but not in subsection (6A) below)").—(Lord Windlesham.)
On Question, Amendment agreed to.
§ LORD WINDLESHAM
My Lords, Amendment No.68 is the Amendment of substance to which I spoke in moving Amendment No.66. I beg to move.
Page 25, line 41, at end insert—
("(6A) A court shall not order a ship or aircraft to be forfeited under subsection (6) above on a person's conviction, unless—
§ Clause 26 [General offences in connection with administration of Act]:
LORD WINDLESHAM moved Amendment No.69:
Page 26, line 11, after ("if") insert ("without reasonable excuse").
§ The noble Lord said: My Lords, on behalf of the noble Lord, Lord Wade and myself, I beg to move Amendment No.69. This is an Amendment to Clause 26(1)(a) which makes it an offence to fail to submit to examination by an immigration officer or a medical inspector on arrival in this country, or by an immigration officer on departure. The Amendment qualifies the offence with the words "without reasonable cause". An Amendment to the same effect was moved by the noble Lord, Lord Foot, in Committee. It was not then acceptable to the Government, and was withdrawn. But the Government have since reconsidered the matter, as the noble Lord, 406 Lord Foot, asked us to do, and without going back over the discussion that we had at an earlier stage in Committee, I can say that the Government are now persuaded that, on balance, it is right to make the Amendment and have decided to do so on the lines proposed. I beg to move.
§ LORD FOOT
Again I should like to express my gratitude to the noble Lord, Lord Windlesham, for having reconsidered this matter, and as it looks as though this is the last opportunity I shall have of doing so, may I say that we have been most grateful to the noble Lord, in this Report stage and in Committee, for the consideration he has been prepared to give to matters when they have been the subject of serious argument. May I say publicly what I have already expressed to him privately, that for my part I have the greatest possible admiration for the way in which the noble Lord has managed the conduct of this Bill throughout all its stages.
§ Clause 29 [Contributions for expenses of persons returning abroad]:
§ 7.30 p.m.
LORD WADE moved Amendment No.70:
Page 28, line 40, after ("in") insert ("voluntarily").
§ The noble Lord said: I beg to move Amendment 70, and perhaps it would be convenient if No.71 were considered at the same time. I propose to speak very briefly to this Amendment, as I am really paving the way for the noble Lord, Lord Windlesham. It may also be convenient to consider Amendment No.72, but that is as the noble Lord, Lord Windlesham, wishes.
§ May I say just a few words, as this matter was very fully debated on Committee stage. Clause 29, as your Lordships know, refers to the payment of expenses of those who wish to leave. It is most important to emphasise that it is intended only for the benefit of those who, of their own free will, wish to leave this country, and that there is no pressure whatever put upon them. That was the consensus of opinion when the matter 407 was discussed in Committee. The noble Lord, Lord Windlesham, undertook to consider this. He has put forward an Amendment, and I wonder whether I might leave it in this way: that having heard the Government's Amendment, it is my intention to withdraw my own Amendments. I think it would be appreciated if we could hear the explanation of the Government's Amendment when in due course it will be moved. If that is the wish of the House, I will leave it in that way.
§ LORD ABERDARE
My Lords, as the noble Lord, Lord Wade, has said, there was a great deal of strong feeling expressed on this matter when he moved his Amendment at the Committee stage. This feeling was expressed by noble Lords from all parts of the House, including my noble friend Lord Brooke of Cumnor, and I undertook to have another look at the point. It is as a direct result of that undertaking that I shall be moving Amendment No.72. I hope that it meets all the points raised at the Committee stage.
We have always made it clear that it was our intention to help immigrants to be repatriated on a voluntary welfare basis. We were in a slight spot before, and I think the noble Lord, Lord O'Hagan, put his finger on this, because at that time this clause also covered cases of assisted departure, which were therefore not entirely voluntary cases. This point of difficulty has now been removed because of the carrying of Amendment No.41, referring to Clause 5. The subsection to which Amendment 72 refers makes it quite clear that the payments to be made to help repatriate an immigrant can only be made if the Secretary of State, so far as practicable, is sure that it is in the person's own interest to return home and that he chooses to do so—which is the draftsman's way of saying "voluntarily".
§ Amendment, by leave, withdrawn.
§ LORD ABERDARE
My Lords, I have explained how we came to this Amend- 408 ment. I beg to move Amendment No.72.
Page 28, line 43, at end insert—
("(2) The Secretary of State shall, so far as practicable, administer this section so as to secure that a person's expenses in leaving the United Kingdom are not met by or out of a payment made by the Secretary of State unless it is shown that it is in that person's interest to leave the United Kingdom and that he wishes to do so.").—(Lord Aberdare.)
LORD BROOKE OF CUMNOR
My Lords, as my noble friend mentioned my name in this connection, I should like to congratulate the Government on having amended this clause in what seems to me to be an entirely desirable way and to thank them for once again showing consideration for the general wishes of this House.
§ LORD O'HAGAN
My Lords, may I just echo that, and, in order that I may be as rude as I can from now on, say once again that I am very grateful to the Government. I got into trouble before for being polite, but I will stop here.
§ Clause 34 [Repeal, transitional and temporary]:
Page 33, line 1, leave out subsection (4).—(Laid Windlesham.)
§ LORD WINDLESHAM
My Lords, Amendment No.75A is also consequential on Amendments Nos.1,5 and 75. I beg to move.
Pace 33. line 7, leave out ("subsections (1) to (4) above") and insert ("the foregoing provisions of this Act").—(Lord Windlesham.)
§ Clause 35 [Commencement, and interim provisions]:
§ LORD WINDLESHAM moved Amendment No.76:
Page 34, line 19, at end insert—
("(3A) Section 1(2A)(d) of the Commonwealth Immigrants Act 1962 (which was inserted by section 1 of the Commonwealth Immigrants Act 1968, and excludes from the control on immigration under those Acts, among other persons, certain persons registered in the United Kingdom or in an independent country of the Commonwealth as citizens of the United Kingdom and Colonies) shall not apply—
§ The noble Lord said: My Lords, this Amendment follows on the series of Amendments to Clause 2 which we debated yesterday, Nos.8,10,15 and 18, which had the effect of giving patriality to Commonwealth citizens married to patrials. I explained the purpose of these changes yesterday. I think the only point I should bring to your Lordships' attention is that this particular Amendment would take immediate effect on the passing of the Act. There will therefore be a short period between the Royal Assent and the appointed day when the remaining provisions of the Act come into effect, during which the Commonwealth Immigrants Act, as amended by this clause of the Bill will continue in force. I beg to move.
§ Schedule 1 [Registration as citizen by reason of residence, Crown service etc.]:
§ 7.38 p.m.
LORD WINDLESHAM moved Amendment No.77:
Page 35, line 16, leave out ("in both places") and insert ("in subsection (1) the words "or,
subject to subsection (1A) of this section, under section SA "and in subsection (2)").
§ The noble Lord said: My Lords, I beg to move Amendment No.77, and with it I should like to speak to Amendments Nos.78,80,81,86,89,90 and 91. This series of Amendments provides that a citizen of an independent Commonwealth country who is patrial under Clause 2(1)(d) because his mother was born in the United Kingdom, shall be entitled to be registered as a citizen of the United Kingdom and Colonies on completion of five years' residence in the United Kingdom. The same entitlement extends to the wife of such a man, if she is a Commonwealth citizen. I should acknowledge at once that the Government have brought forward these Amendments to meet a point raised in Committee by the noble Baroness, Lady White.
§ The general position in future under the Bill is that Commonwealth citizens are to be able to register as citizens of the United Kingdom and Colonies only on satisfying the Secretary of State that they are of good character, that they have sufficient knowledge of the English language, that they intend to reside in the United Kingdom, and that they have been ordinarily resident here for five years or for such shorter period as the Secretary of State, in the special circumstances of the particular case, accepts. Even when these conditions are satisfied registration is not entirely at the discretion of the Secretary of State. In moving an Amendment in Committee the noble Baroness, Lady White, said that in the view of the Opposition a person who was patrial ought to be able to register forthwith. In reply I expressed general agreement, but said that some restriction would he necessary to prevent Commonwealth patrials transmitting patriality to their grandchildren in a manner contrary to Clause 2(1)(d). If there were no restriction it would he possible for a Commonwealth patrial to transmit patriality without ever leaving his own country. The Amendments prevent this by requiring registration to be in the United Kingdom and by also requiring a period of five years' residence here, so demonstrating an identification with the United Kingdom.
§ Amendment No.89 provides that a person who has renounced his citizenship of the United Kingdom and Colonies 411 should not be entitled to registration, but that he may he registered at the discretion of the Secretary of State. These cases are likely to be rare, but it seems right to have this discretion to deal with them. The effect of Amendment No.91 is that Commonwealth patrials can exercise their rights to he registered on completion of five years' residence only in the United Kingdom or the Islands and not in the dependent territories. These are somewhat technical Amendments. I have given a reasonably full explanation so that it will appear in considered language in Hansard. After the further consideration that we gave to this matter in Committee we regard these as an improvement to the Bill and, accordingly, I recommend them to your Lordships. I beg to move.
§ BARONESS WHITE
My Lords, I do not profess to understand fully the entire effect of these Amendments—they are complicated—hut I should like to acknowledge the attention which the noble Lord has paid to what was said in Committee and thank him accordingly.
§ LORD WINDLESHAM
My Lords, I beg to move Amendment No.78, which is consequential on Amendment No.77.
Page 35, line 21, leave out ("subsection (lA)") and insert ("subsections (1A) and (1B)").—(Lord Windlesham.)
§ LORD WINDLESHAM
My Lords, I beg to move Amendment No.79. which is consequential on Amendment No.43.
Page 35. line 35. leave out from ("if") to ("been") in line 36 and insert ("it is more than five years, throughout the period since the coming into force of this Act"). (Lord Windlesham.)
§ LORD WINDLESHAM
My Lords. I beg to move Amendment No.80. which is consequential on Amendment No.77.
Page 36, line 37, after ("5A") insert ("except as retards registration under section 5A(0)").—(Lord Windlesham)
§ LORD WINDLESHAM
My Lords, I beg to move Amendment No.81, which is consequential on Amendment No.77.
Page 37, line 4, at beginning insert—
("(0) Subject to the provisions of subsections (4) and (4A) below, a citizen of any country mentioned in section 1(3) of this Act, being a person of full age and capacity, shall be entitled, on making application therefor to the Secretary of State in the prescribed manner, to be registered as a citizen of the United Kingdom and Colonies if he satisfies the Secretary of State that
LORD ABERDARE moved Amendment No.83:
Page 37, line 12. after ("English") insert ("or Welsh").
§ The noble Lord said: My Lords, I am delighted to be able to move Amendment No.83, but although the pleasure is mine, the honour is that of the noble Baroness, Lady White. We looked at the matter after the noble Baroness raised it on Committee, and as Welsh has now been given statutory recognition in the Welsh Language Act 1967 we think it reasonable that a knowledge of Welsh should be sufficient for the purposes of registration as a citizen of the United Kingdom and Colonies. I beg to move.
§ BARONESS WHITE
Diolch yn fawr lawn a llongyfarchiadau cynnesaf o galon. For the benefit of the Anglo-Saxons, or lesser Celts that might be present, that means, "Thank you very much and warmest, heartfelt congratulations."
§ LORD O'HAGAN
My Lords, a great injustice has been done to 40 Pakistani fishermen on the Isle of Lewis, who probably speak Gaelic batter than they do any other European language. But, leaving that aside, can the noble Lord, Lord Aberdare, give details, now or in writing, of the ways that these tests of English or Welsh are going to be conducted? I asked about that at a previous stage, and perhaps the noble Lord can write to me.
§ LORD WINDLESHAM
My Lords, I beg to move Amendment No.86, which is consequential upon Amendment No.77.
Page 37, line 16, after ("subsection") insert ("(0)(b) or").—(Lord Windlesham.)
§ LORD WINDLESHAM
My Lords, Amendment Nos.89,90 and 91 are all consequential upon Amendment No.77. I beg to move.
Page 37, line 37, after ("or") insert ("his close connection with the United Kingdom or, if he is applying for registration under subsection (1).")
§ Page 37, line 38, at end insert—
§ ("(4A) A person who has renounced citizenship of the United Kingdom and Colonies under this Act shall not he entitled to be registered as a citizen thereof under subsection (0) above, but may be so registered with the approval of the Secretary of State.")
§ Page 38, line 4. at beginning insert—
§ ("(1 A) Except in the Channel islands and the Isle of Man, subsection (1) above shall not apply to the functions of the Secretary of State as regards registration under section 5A(0) of this Act; and in its application to any of those islands that section shall have effect as if a reference to that island were substituted in section 5A(4) for the first reference to the United Kingdom.
§ (1B) Subject to subsection (IA) above,"—(Lord Windlesham)
Page 38, line 8, after ("English") insert ("or Welsh").—(Lord Aberdare.)
LORD SHEPHERD had given notice of his intention to move Amendment No.93:
Insert the following Preamble—
("Whereas it is the declared policy of Parliament to create and maintain good community relations and to prevent discrimination on grounds of race, colour or religion;
And whereas in pursuit of that policy Parliament has passed the Race Relations Acts 1965 and 1968;
And whereas Parliament considers it expedient and necessary in further pursuit of that policy to limit or control immigration; ")
§ The noble Lord said: My Lords, we regarded the principle behind this Amendment with considerable importance. However, in the light of the considerable concession that the Government have made in the field of the police and, too, in a more minor way in Parliamentary control, and in the light of the general spirit of this debate, I do not think there will be any misunderstanding in future considerations of Parliament of what Parliament intended when this Bill was being considered here. Therefore perhaps the words in Amendment No.93 are not as important in the Bill as we at first thought they would be when we commenced our considerations of the Bill, and I do not intend to move the Amendment this evening. May I, on behalf of my noble friends, congratulate the noble Lord, Lord Windlesham, in particular, and his colleagues on the Front Bench for the way in which they have treated all of us on Committee and on Report on a Bill which is of considerable complexity. They have done a very formidable and satisfactory task.
§ My last words must be of regret to the Chief Whip. Last night I thought that he could be on the 7 o'clock train to Brighton. Well, I have done my best but, as the noble Earl knows, Chief Whips and ex-Chief Whips are not always successful. It is not too bad; we are 50 minutes behind time, and if I get a bit of a move on I may catch my train home. So I hope that the noble Earl will feel that we have been in some difficulties together this evening, but I thank him for all his consideration.