§ 3.42 p.m.
THEMINISTER OF STATE, HOME OFFICE (VISCOUNT COLVILLE OF CULROSS)My Lords, I hereby now repeat the Statement being made in another place by my right honourable friend the Home Secretary, following upon the decision of this House yesterday in the case of Azam and Others v. The Secretary of State for the Home Department and Another. The Statement is as follows:
"The House of Lords' decision has confirmed what we believed the law to be and what we intended it to be.
"The provisions which we wrote into the 1971 Immigration Act fulfilled our undertaking to ensure that all those settled here on or before January 1 of this year should have all their existing rights protected; but we did not, and did not mean to, give this protection to those who had come here before that date illegally and who were therefore not settled here as defined in the Act.
"The power of removal under the 1971 Act applies mainly to those immigrants who come, or have come here without authorisation since March 9, 1968. But it also applies to any immigrants who may have entered prior to that date in defiance of a specific refusal.
"I want to set out what our policy will be in using this power.
"The cases of the three men who were the subject of the House of Lords' 553 decision yesterday will now be considered, and any representations made on their behalf before the end of June will be taken into account. The same will apply to the other 33 cases now awaiting decision.
"In deciding these and any future cases we shall look at each one individually on its merits and compassionate grounds will be taken into account. At the same time I must make it clear that where someone is found to be in this country illegally it must be normal practice to send him away. To do otherwise would be unfair to those who have already entered legally or are waiting to do so."
§ 3.45 p.m.
§ BARONESS WHITEMy Lords, I wish to thank the noble Viscount for repeating the Statement made in another place. I put the Question today because, with my noble and learned friend Lord Gardiner, I was one of those on this side of the House responsible for dealing with the Immigration Bill when it was before the House in 1971. It would not be appropriate to debate the merits of this whole subject, but my principal reason for raising it today is because, as a person who was active in dealing with this Bill, I cannot accept the statement made by the right honourable gentleman the Home Secretary, and repeated in this House, that the Government intended that this should be the normal practice for the persons concerned. If they had intended that, my Lords, it should surely have been made manifest to those of us who were concerned with this legislation. It never was, in either House. We have taken pains to go through the records in the other place and in this House. At one moment we thought there was one phrase used by the late Sir Richard Sharpies which referred to this particular matter, but on further examination even that phrase does not appear to have referred to the persons with whom we are now concerned. Therefore I do not believe that it was the intention of Parliament to pass legislation in the form in which it was passed. It was done by inadvertence.
There may have been such an intention on the part of persons in the relevant Department who were concerned with the extremely complex drafting of 554 that Bill. I cannot believe that the noble Lord, Lord Windlesham, who leads the House, would have concealed from us that this was the intention of the Government. He knows very well indeed that had we realised that that was the intention of the Government we would have put down Amendments to draw the attention of Parliament and the people to that fact. This was never done. I, as a lay person, might very well not have realised what the legal intention was, but had my noble and learned friend Lord Gardiner, a former Lord Chancellor, who has particularly strong feelings about retro-active legislation, supposed for one moment that that was the intention of the Bill, he would, I am certain, have drawn the attention of your Lordships' House to the fact. Because I regard it as a matter of honour, I believe that we are all offenders in this. I believe that we have put the liberty, the family life, the happiness of fellow human beings at risk because we were not aware of what we were doing. A law was passed that we did not believe would have such an effect.
This seems to me to be a moral issue in which we all, in both Houses of Parliament, are collectively at fault. This was never discussed; it was never debated; it was never understood that this was the intention of the Government or of the legislation before us. Therefore, my Lords, it appears to me that we have a very particular moral obligation towards the people concerned. These people believed, and we believed, that if they had been in this country for a certain period of time before the passing of the Act of 1971 they would be immune from deportation, and a number of them actually went to the police to confirm that this was their position. They are now all at risk, and for the Government to say in their Statement that they would consider each case on its merits is surely socially a completely unacceptable situation, because every one of these persons is now in fear and terror. Every one of them is now subject to possible blackmail; some of them are in fact being subjected to acts of blackmail at the present time.
The number concerned is not great—there is no precise estimate from the nature of the matter. As the noble Viscount has indicated, it concerns almost exclusively those who came in 555 after 1968 and before the passing of the 1971 Act; so the period concerned is a very short one. I am not referring to those who were actually refused permission to enter; they are in another category. Therefore the numbers concerned are not large, and I would implore the Government, in the circumstances which I have described, to say that they will not, unless some other offence has been proved, deport persons in the category concerned.
§ 3.49 p.m.
§ LORD WADEMy Lords, I should like to join in thanking the noble Viscount for repeating this Statement. It is a very disturbing one, and I am particularly concerned because it so happens that it was I who moved the first Amendment in your Lordships' House, the purpose of which was to write into the Bill the assurance which we believed had been given by Her Majesty's Government. That Amendment was carried by your Lordships, and later, in a slightly amended form, it remained in the Bill. Obviously there is going to be argument as to what precisely is meant by this word "settle", but my own impressions are definitely the same as those that have just been stated by the noble Baroness, Lady White. Over and above that, I think one has to remember that during the period immediately after the introduction of the 1971 Bill there was a great increase in the feeling of insecurity, which was bad for community relations. When that Amendment was carried and later put into the Bill, I went out of my way to assure members of different communities in this country that it protected those who had settled prior to the coming into effect of the Act. While I appreciate the assurances which were given at the conclusion of the Statement, I am worried because I feel that the value of Government assurances is being depreciated—perhaps not intentionally, but that is the effect. I hope, therefore, that the plea of the noble Baroness, Lady White, will be listened to very carefully.
VISCOUNT COLVILLE OF CULROSSMy Lords, I think that the noble Baroness, Lady White, is right in saying that this matter was not expressly discussed or divulged in the course of the passage of the Bill through either House, 556 and it would be disingenuous to suppose that one could construe anything of the sort which she suggested as showing that, under the Bill, the law was plainly what this House in its judicial capacity has now decided that it is. The fact remains that she is right in describing this as retroactive, rather than retrospective. I think there is a difference, because if it affects people who were here illegally, then they were here illegally and one cannot get away from that. They were here illegally as the law was at the time when they came in, and they must have known it.
§ BARONESS WHITEMy Lords, with great respect, I am sure the noble Viscount will agree that if they had been here long enough they were subject to an immunity which they have now lost. It is the immunity that we did not realise they were ever going to lose.
VISCOUNT COLVILLE OF CULROSSMy Lords, it is a question of the period of time during which a summary offence can be prosecuted in a magistrates' court. But there it is. Their entry was illegal at the time when they came in. If I may say so, the noble Baroness and the noble Lord, Lord Wade, have addressed a plea which it is not really for me to answer. What I shall do—and I have been discussing this matter with my right honourable friend for quite a long time today—is to see that he is at once told what has been said by the noble Baroness and by the noble Lord. I know that the noble Baroness is right in terms of not being able to put any specific number on the people concerned. She is also right—and so is the noble Lord, Lord Wade in saying that, the law being what it is, we shall, nevertheless, deal with individual cases on merit, on compassion—and, if necessary, I can spell out the sort of grounds that come within "compassion". But the point of principle which they have put is one which I think I can only convey to my right honourable friend in the way they have put it because, after all, the law has now been declared to be what it is and that is the situation as it stands today. I do not think I can do any more this afternoon than give that promise to those who have made those comments.
§ LORD SHEPHERDMy Lords, when the noble Viscount discusses this matter 557 further with his right honourable friend, will he bear two factors in mind? First of all, the law was not clear, because it had to be brought to the House of Lords for a final judgment, although it may have been clear to the Government. Secondly, I now come to the words in the Statement, which said that the law is what the Government intended it to be. Right through the Committee and Report stages, in which the noble Lord, Lord Windlesham, the Leader of the House, and, I think, the noble Viscount took part—
§ LORD SHEPHERD—there was undoubted concern about the position of those who may have entered this country illegally. If the Government had intended the law to be what the House of Lords has now said it to be, then I think that the Government had a bounden duty to tell the House, not only for the information of the House and for possible action, but for the sake of justice to the people who were likely to be affected. Therefore, will the noble Viscount bear those two major factors in mind when he discusses this matter with his right honourable friend? Also, since none of us wishes the immigration issue to become a matter of conflict again between the two Parties, will the noble Lord, Lord Windlesham, who is a Member of the Cabinet, undertake to meet some of my colleagues on these Benches, together with the Liberal Party and noble Lords from any other quarter of the House who are interested in this matter, to see whether some way can be found of preventing some of the appalling fears, not only of immigrants who came here illegally, but of families that have since been born; and also of relieving them of one of the worst crimes of which I know—blackmail.
§ LORD O'HAGANMy Lords, I do not want to reopen the debate, but I should like to ask the noble Viscount whether he accepts that the particular reason for the Statement today illustrates what many of us felt when the Bill, which is now the Immigration Act, was passing through this House; namely, that it was opaque and confused? Will he now undertake, especially after the invitation of the noble Lord, Lord Shepherd, to 558 look again with his right honourable friend—particularly in the light of the strength of the economy; the fact that we had two Jamaicans coming in last year, and the fact that by the end of 1974 the European Community will have introduced a system for harmonising immigration—at this really hopelessly muddled and confused Act and devise some way of quickly putting it in the dustbin?
§ LORD NAPIER AND ETTRICKMy Lords, before my noble friend replies, may I ask him whether he can tell the House how many, in round figures, might be involved in this matter?
VISCOUNT' COLVILLE OF CULROSSNo, my Lords. From the nature of things, as the noble Baroness, Lady White said, it is really quite impossible to give even round figures. I have told the House in the Statement that there are 33 cases—other than the three who were actually before this House sitting in its judicial capacity—who are awaiting a decision. How many more there may be, I simply do not know. With regard to what the noble Lord, Lord Shepherd, said, my noble friend Lord Windlesham was sitting beside me and heard what was said. I shall also, of course, pass it on to my right honourable friend, because I agree that we do not wish this sort of issue to become at any time a cause of friction between any of the Parties in this House, or in the country. If noble Lords opposite, and, indeed, any other noble Lords, have positive proposals to put forward I do not see how we can resist listening to what they have to say. Incidentally, there will of course be an occasion, when the Bill of the noble Lord, Lord Avebury, conies before the House, to discuss this matter again. So I shall indeed pass that message on as well. As regard blackmail, it is a very bad crime and is capable of happening to those who came in after January 1, 1973, just as it is to those who came in earlier. The police take these cases very seriously, and one trusts that the courts deal with them very seriously if they are proved.
As for the noble Lord, Lord O'Hagan, saying that this Act should go into the dustbin, I am afraid that there I must stand firm. In view of the proper prosecution of a good race relation policy in 559 this country, in view of the obligations that we have internationally and to our passport holders in other places, and in view of the really very great stresses which some areas are undergoing at this moment, it is absolutely impossible for us to take anything other than a strict line on immigration, and I cannot promise anything of the kind for which the noble Lord, Lord O'Hagan, asked. The Act may be opaque, but this particular matter arises under only a small section of it. and to promise a general review in the light of any of the factors that the noble Lord mentioned is something that I cannot possibly undertake at this moment.
§ LORD FRASER OF LONSDALEMy Lords, is it not a long-standing and well-established practice that what is said in either House at a time when a measure is being discussed, or what is not said or omitted to be said, but more particularly what is said—even what is reported in Hansard—does not make the law of this country. It remains for the law to be interpreted by the courts when the occasion arises. May we therefore not be wise not to confuse the law with a benevolent wish which has been expressed by noble Lords opposite and may be felt by others, and to which the Minister has said that the Government will give consideration? There may be circumstances in which a new law should be passed; I am not prepared to say that. But it would seem to me to be well not to muddle up what is the law, as defined by the courts, and what is thought to have been the intention of Parliament as expressed by Ministers or others in debates.
§ BARONESS WHITEMy Lords, I thank the noble Viscount, Lord Colville of Culross, for that co-operative answer, and I hope that we may have further consultations about this matter. May I draw the attention of your Lordships to the transcript of the judgment given by noble and learned Lords yesterday in which both the noble and learned Lord, Lord Wilberforce, in giving the majority opinion, and also the noble and learned Lord, Lord Salmon, in giving the dissentient opinion, sharply criticised the way in which this particular legislation was conducted in Parliament. I think it only right that we, as the legislative body in this country, should take note of these 560 very sharp criticisms from the highest legal authorities in the land of the way in which this particular legislation was fashioned.
VISCOUNT COLVILLE OF CULROSSMy Lords, my noble friend Lord Fraser of Lonsdale is perfectly right. No court would look at proceedings in this House, or in another place, in order to interpret what an Act of Parliament means. There are copious rules on the construing of Statutes and one of them definitely is that you do not look at what the Legislature intended; therefore my noble friend is quite right in thinking that the House, in its judicial capacity, would have construed the words of the Statute as they stand, without any confusion about what might, or might not, have been intended by Parliament. Of course the noble Baroness, Lady White, is right in saying that we should not legislate obscurely. I am sure that those who construct Statutes on this subject will take to heart the remarks of the noble and learned Lords about the obscurity of the words in the Statute, which is, I think, what the noble and learned Lords were criticising rather than the intention of Parliament in that respect, because I do not think they would be entitled to criticise that.
§ LORD SHEPHERDMy Lords, may I ask one more supplementary question before I suggest that we ought to move back into Committee. It is important. In the light of the fact that previous legislation has given a degree of immunity when an illegal immigrant has been in this country over a period of time, and the Government now saying that the law as interpreted yesterday is what they intended, would the noble Viscount not have thought, on reflection, that Parliament should have been specifically told of the changes, not only in the interests of Parliament but also in the interests of all the people of this country?
VISCOUNT COLVILLE OF CULROSSMy Lords, it is very difficult for me to give an answer to that. I should have thought in principle the answer was "Yes"; but I am bound to say that if I say that, I am reflecting adversely upon my noble friend Lord Windlesham—
§ LORD SHEPHERDMy Lords, that was not meant.
VISCOUNT COLVILLE oF CULROSS—and those in another place who might have taken the course. Therefore I give a personal view. I say, "Yes". What may or may not have been right at the time when the Bill was being discussed, in another place or in your Lordships' Chamber, must, I think, rest with those who had the conduct of it at the time. I was not in the Government; I had no part in it and therefore I must stick to a personal view.
§ LORD WADEMy Lords, there is one point I should like to raise before we leave this subject. I should like to see this issue decided on grounds of principle rather than dealing with individual cases on compassionate grounds. But in so far as individual cases are considered, may I express the hope that this point will be kept in mind; namely, that there may well be bread-winners who, as a result of the decision of the House of Lords in its judicial capacity, are put at peril but whose wife and children may be perfectly entitled to remain here. There is a very real risk of dividing families.
VISCOUNT COLVILLE OF CULROSSMy Lords, of course that is right. I do not know to what extent this is so; I simply do not know what these cases are. But the sort of points which will be taken into account when deciding whether to use these powers as now clarified are age; length of time a person has been here; the strength of his connections with this country; his personal history, including his character, conduct and employment record; his domestic circumstances, which certainly takes account of the point made by the noble Lord, Lord Wade, and any other compassionate circumstances and representations received. So the sort of matter the noble Lord has in mind is very much one of the criteria which would be taken into account in a consideration of this kind.
§ LORD SHEPHERDMy Lords, before suggesting that we move back into Committee, may I just say that I did not intend in any way to say anything against the noble Lord, Lord Windlesham.