§ 12.27 p.m.
§ LORD BYERS
My Lords, I beg leave to move the Second Reading of the Bill which bears the sponsorship of my noble friend, Lord Avebury, to remove the element of retrospection in the Immigration Act 1971. I think it would be much easier if I left the details of this argument, which I fully support, to my noble friend, who can speak for himself. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2ª.—(Lord Byers.)
§ LORD AVEBURY
My Lords, I am most grateful to my noble friend, Lord Byers, for moving the Motion when I was temporarily detained elsewhere. I apologise to the House for that. In discussing this subject, I think it ought to be clear at the outset that none of us in this House or in another place would condone illegal immigration. That is not the subject which we are discussing under the Bill. We accept that Parliament was right and was acting within its powers in passing legislation in 1971 which tightened the controls over illegal immigration. We ought not to get bogged down in discussion concerning that matter when we are really dealing with the constitutional question whether Parliament should pass retroactive or retrospective legislation.
The state of our law prior to January 1, 1973, was that certain people had acquired a right of abode in this country and that when the 1971 Act came into force at the beginning of this year that right was then taken away from them. I think it is impossible to quarrel with the assertion that the 1971 Act was retrospective. The noble and learned Lord, Lord Wilberforce, said in his judgment in the case of Azam, Khera and Sidhu, with which no doubt the noble Lord is familiar:Parliament can, if it uses sufficiently clear words, give legislation retroactive effect and there is no doubt that it has done so here.That proposition having been established, I hope to be able to convince your Lordships that at the time of the proceedings on the 1971 Act, practically no one realised that it was retroactive or retrospective, whichever word is preferred.
2211 I should like to begin by quoting from the judgments of the noble and learned Lord, Lord Wilberforce, and the noble and learned Lord, Lord Salmon. The former said:I regret that in a matter which affect directly so many individuals, so labyrinthine a path requires to be followed"—the path being the various clauses in the Act and in the Schedules to the Act, which one requires to examine before one can see what its proper effect has been. And Lord Salmon:I feel bound, however, to express concern that that the draftsmen of this Act should have chosen to achieve its retrospective effects through a labyrinth of verbiage which may well have been as perplexing to many of those who had to consider it in Parliament as it undoubtedly was to those whom it may have deprived of their constitutional rights.The Home Secretary quarrels with this view expressed by two noble and learned Lords. He said in the House of Commons on June 25, in the debate on Mrs. Shirley Williams's Motion:There is no excuse at this late stage for the Opposition, or, indeed, anyone else involved in this subject, to complain that the law is particularly, let alone deliberately unclear or that the Government deliberately obscured their intentions during the passage of the Immigration Act 1971."—[OFFICIAL REPORT, Commons, cols. 207–8.]Mr. Ronald Butt, who wrote in The Times yesterday, and the right honourable Gentleman the Home Secretary are about the only two people in this country who accept that proposition. In making such a sweeping assertion, the right honourable Gentleman the Home Secretary was, in effect, rebuking the noble and learned Lords, whose words I have quoted, for their stupidity in construing the Act with such difficulty. He ignored completely the facts that there were dissenting judgments by Lord Justice Buckley in the Court of Appeal and by the noble and learned Lord, Lord Salmon in the House of Lords. So it is certainly not anything like so clear as the Home Secretary maintains.
I have spoken to several noble Lords who were closely involved in the debate in your Lordships' House on the 1971 Act, and I can say that not a single one of them realised that it was retrospective. The same is true of my honourable friend Mr. David Steel, in the Commons, and of various Labour Members whom I have 2212 also consulted most carefully to see whether they had any inkling that this was the effect of the Act. It would not be proper or fair to claim that the Home Secretary deliberately concealed the meaning of the relevant clauses. At the same one is bound to say that the words used by the right honourable Gentleman the then Home Secretary, and by the noble Lord, Lord Windlesham, who I am pleased to see is to speak on this Motion, were likely to mislead both Houses of Parliament and were successful in achieving that effect.
The words that were used have been quoted before, and I shall make just two selections. One is from the right honourable gentleman the Member for Barnet (Mr. Maudling), who was then Home Secretary, and the other is from the noble Lord, Lord Windlesham. The then Home Secretary said on Third Reading:I said on Second Reading—and I was very anxious that this should be known—that Commonwealth citizens already here free of conditions, which means broadly speaking all working immigrants, will not be affected. …It can be claimed that these people were not here free of conditions, but in the cases to which I have referred—Mr. Azam, Mr. Khera and Mr. Sidhu—those people were all in employment. If they were to read the words of the then Home Secretary, they might well—and, in fact, did—believe that they would not be affected by the 1971 Act. The noble Lord, Lord Windlesham, said:The Bill renders no one liable to compulsory repatriation, whether here already or coming in the future.That was at the end of the quote in which he made other remarks that gave the same impression.
I shall not go into the speech of the noble Lord, Lord Windlesham, in detail because I understand that my noble friend, Lord Wade, will deal with the debate in your Lordships' House on the first Amendment moved in Committee on the 1971 Bill, and with the events which followed it, which are of some importance to your Lordships in coming to a decision on the Bill that I am presenting now.
At the risk of boring your Lordships, I think it is necessary to go into a little detail on the relevant provisions of the 1971 Act. We enter the labyrinth in 2213 Section 33(1) where "illegal entrant" is defined as:a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered.Then we have to find out the "immigration laws". They, too, are defined in Section 33(1) as meaning the 1971 Actand any law for purposes similar to this Act which is for the time being or has (before or after the passing of this Act) been in force in any part of the United Kingdom and Islands.Therefore, the definition of "illegal entrant" is not confined to persons entering the country after the passing of the 1971 Act, and the words "has so entered" must extend back in time to the 1962 Act, which was the first law that attempted to restrict entry to the United Kingdom by Commonwealth citizens.
Next, we need to look at Section 3 of the 1968 Act. It says: that any person being a Commonwealth citizen who lands in the United Kingdom without submitting to examination by an immigration officer is guilty of an offence; and "lands" means landing from a ship or an aircraft. The section gave a period of 28 days from the date of landing within which the immigrant had to report to an immigration officer, so that, if he had not reported by the expiry of that period, an offence would have been committed. This was a summary offence, and under the general law applicable to this class of offences, Section 104 of the Magistrates Courts Act 1952, a prosecution had to be brought within six months. As the Master of the Rolls put it in a Court of Appeal, after expiry of this period of six months the person concerned was virtually untouchable. That situation remained in force until January 1, 1973, when the 1971 Act came into force.
Let us look, by way of illustration, at the case of Mr. Khera. In December, 1971, he had already been in the country for three years when it came to the notice of the police that he had committed an offence under Section 3 of the 1968 Act, which I have quoted. After requiring him to report to the police station and examining his passport, they informed him that no further police action would be taken. They simply reported the facts to the Home Office and, as we know 2214 now, Mr. Khera retained the immunity from any penalty following his illegal landing in this country for another whole year, until January 1, 1973.
But under Section 1(2) of the 1971 Act only persons "settled" in the United Kingdom on January 1, 1973, are automatically given leave to remain here. And "settled" is defined in Section 2(3)(d) as being ordinarily resident, without being subject under the immigration laws to any restriction on the period for which he may remain. "Ordinarily resident" is not defined anywhere in the Act, but the common-sense interpretation would lead to most of the affected persons having leave to remain indefinitely, if it were not for the proviso in Section 33(2), which says that:a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom … at a time when he is there in breach of the immigration laws.May I here interpolate a remark about the Home Secretary's justification of his predecessor in the House of Commons the other day. He pointed out that this had been spelt out in detail at the Committee stage in another place. As a layman, I should have said, until the recent judgments, that "in breach of the immigration laws" meant liable to prosecution under the immigration laws. That was the impression most people had: that once the six months had passed, that person was no longer in any danger of being prosecuted. Then I should have thought—though clearly I am wrong, because this is what the Court of Appeal and the House of Lords have held—that he would no longer be in breach of those laws.
This seems a very odd principle. If one extended it to other fields, one would say, for example, that if a person was guilty of careless driving in 1944 but was not then detected by the police and the offence came to light many years later, he cannot be prosecuted because I believe that careless driving is an offence covered by the Magistrates Courts Act, but he would still be in breach of the Road Traffic Acts. He would be driving around the roads of this country in breach of the laws which govern driving, even though he was no longer liable to prosecution. According to the noble and learned Lord the Master of the Rolls, there is no time 2215 limit within which a person escapes from being in breach of a law in spite of the fact that he can no longer be prosecuted for it. His presence in the United Kingdom, to take the case which has given rise to the Bill—the presence of Mr. Khera and Mr. Azam, for example—continued to be unlawful, notwithstanding the fact that he could no longer be prosecuted for it. Therefore he was not "ordinarily resident" within the meaning of the Act. That in turn meant that he was not "settled" and had no right to remain. This is the point at which the lack of clarity prevented either House from detecting the real meaning of the 1971 Act at the time and spotting the element of retrospection contained in it.
I apologise to your Lordships for having to go on a little further in dealing with the 1971 Act to consider what are the consequences of a person being here in breach of the immigration laws. One has to look at Section 4(2)(c) and Section 16(1)(a) to find out what can happen to him. Section 16 need not concern us in any detail, except to note that appeals against removal, which are dealt with there, can be initiated only by the victim after the sentence of removal has been carried out and he is left destitute in some wretched village of the Punjab or Gujerat. Section 4 simply brings into play the provisions of Schedule 2 to which one must then turn in order to find out in detail how the powers of detention and removal may be exercised against alleged illegal entrants. Schedule 2, paragraph 9 says:Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1)".The words "is not given" have been held by the courts to include "has not been given", which I should think was a rather sloppy piece of drafting and liable to misinterpretation, as indeed it was, because some people, including counsel acting on behalf of Mr. Azam and Mr. Khera, claimed that these words could not possibly apply to events which happened in the past. These directions are concerned with requiring the captain of a ship or an aircraft or the owners or agents of that ship or aircraft to 2216 remove the illegal entrant to any destination specified by the officer.
Then paragraph 16 of Schedule 2 provides that an illegal immigrant,may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.In these cases, the final decision rests with the Secretary of State, who has assured us that he will exercise his very sweeping powers in a compassionate and humanitarian manner. If I may say so, my Lords, some of us who conduct lengthy correspondence with Home Office Ministers will have to construe that assurance in the light of our own experience. I think I have probably said enough to indicate that the 1971 Act was not by any means as simple to interpret as the Home Secretary pretends and I would just ask again how, if it was so, does the noble Viscount, Lord Colville, explain that neither the Court of Appeal nor the House of Lords could reach a unanimous decision on the case?
I think we now have to accept that the majority decision of both courts was the correct interpretation and that it was in accordance with the intention of the Home Secretary, if not that of Parliament, and that it is our duty to have another look at the situation in the light of what the courts have ruled.
I do not think this is mainly a question of whether 2,000 or 10,000 people may be affected by the provisions of the 1971 Act. Whatever the figure may be, it is a trifling number compared with the total population of this country. I am concerned with the effect of the House of Lords decision on race relations in this country —disastrous as it will certainly be. The Home Secretary said the other day in another place that the Opposition was wrong in thinking that good race relations would be promoted by an amnesty or, what comes to the same thing, the passing of a Bill on these lines. I am not aware of any widespread demand in the host community to root out and expel those who entered clandestinely before January 1, 1973. The Home Secretary himself has said—and the assurance has been repeated in this House—that no special efforts will be made by the police or any other agency of the Government with a view to detection of these persons. So, if we are talking only about the couple of 2217 dozen people who are at the moment in detention awaiting the Home Secretary's decision, and a tiny trickle of people who may by chance come to the attention of the police over the next few months—they might be apprehended in connection with some other matter—how on earth can that have any effect whatsoever on what the Home Secretary has called "the prevailing mood of tolerance among the British people"? On the other hand, I believe he must be well aware of the grave anxiety which has been expressed on the Government's policy, not only by the minority communities themselves but also by many native British people who have an interest in good race relations. I do not wish to go through a large number of these, but I would mention, for example, the Community Relations Commission and the Race Relations Board who, in an unprecedented joint statement, have said that they,regard the consequences of Lord Wilberforce's recent judgment as posing a serious threat to race and community relations.The British Council of Churches Community and Race Relations Unit made a statement, endorsed by the Executive of the British Council of Churches, in which they said:We strongly deprecate such retrospective application of the law. In our judgment it is inhumane in its treatment of individuals who hitherto had good reason to believe that they were now free to build up a new life in this country.Then we have the statement from the National Association of Community Relations Councils:The Association is deeply disturbed by several recent events. Firstly, we see no basis for believing that at the time of introducing the 1971 Immigration Bill it could have been intended that this should have retrospective effect …".The Indian Workers' Association writes to me to say:your Bill will very much improve race relations in this country".And The Guardian leader this morning:What the Commons failed to do on Tuesday night the Lords can make good to-day by extending a helping hand to the few thousand illegal immigrants who have been trapped by the retrospective clauses of the 1971 Immigration Act.New Society on June 14, 1973, raised another point to which I should like the noble Lord who is to reply to give some consideration; that is, that we are not 2218 only talking about race relations in this country but, even more vital, the relations between this country and our partners in the Commonwealth. The leading article in New Society said:Nor, either, would action stemming from the Lords' decision be politic. To fly some 30 'illegals' from Pentonville to the Indian subcontinent would hardly be tactful when there are over 10,000 United Kingdom passport holders remaining there, tolerated by the respective governments, but without valid entry permits.Justice, in the annual report published on June 22, says that those who had entered illegally before the Act was passed are now condemned to live the rest of their lives in England under fear of detection, harassment or even blackmail, however long they have resided there. I have also had letters supporting the Bill from Greenwich Community Relations Association, the Southern Counties Regional Council of the United Nations Association, the Bexley Community Relations Council, the Leeds Council for Community Relations, and so on.
That is the strength of opinion which is opposed to this policy which we now see was the result of the 1971 Act. But there is another, and even more vital and serious, question to which in conclusion I should like to invite your Lordships' attention: I had always understood that Parliament abhorred retrospective legislation which imposed penalties on a person who was not liable for those penalties before that legislation came into effect.
I would just quote here Professor C. J. Hamson, Professor of Comparative Law at Cambridge for the past twenty years, who wrote in The Times of August 17, 1950, but the principle still applies:Retroactive legslation strikes at the roots of law … It is a part of that norm"—of civilised nations—that laws, particularly involving a penalty, shall not be retroactive.Yet here we discover that transportation—a very severe punishment indeed—can be, and is being, imposed on people who are free citizens, with the same rights and privileges as all the other normal inhabitants of the United Kingdom for as long as three and a half years before the racist Act of 1971 came into force.
That punishment is being inflicted without any judicial authority at the instigation of anonymous immigration officers, 2219 without regard to the principle of natural justice that any person has a right to be heard and to be legally represented before he is condemned. Such a dangerous attack on the constitution ought not to be permitted by Parliament.
§ 12.52 p.m.
§ LORD GARDINER
My Lords, I rise to support the Second Reading of this Bill, and the first thing that I should like to say, and take responsibility for, is that, whether it was my fault or not, when this Bill was before Parliament, I had no idea that it contained the retrospective or retroactive effect which the noble and learned Lords have now held that it did.
I do not think that I ever waded through all the lengthy Committee stage in the other place, but of course I paid close attention to what the Home Secretary said, and on the Second Reading of the Bill on March 8, 1971, he said:It is enormously important to reassure the immigrants already here as part of our community that they will have no loss of status under the Bill."—[OFFICIAL REPORT, col. 44.]There is no reference to people being settled in the meaning of Schedule so-and-so. It is a perfectly general statement. Your Lordships may remember that those of us who opposed the 1971 Act altogether did so for a number of reasons, one of which was the damage which we thought it would do to community relations in this country just when they were being much improved. The Government's answer to that argument always was, "It is up to you—the churches, the race relations people and everybody who has to deal with immigrants—to persuade them that these fears are completely groundless, because the Bill does nothing to those who are already here."
Later in the same speech, Mr. Maudling said:Those Commonwealth citizens already here free of condition, broadly speaking all working immigrants here, will not be affected.Then he said:As drafted, the Rules for admission would impose upon immigrants already here a need in future to show that they can sustain their relatives and dependants. This is not in accordance with what I intended, and I will change it in future. … As I have said, I do not intend that the position of those already in this country, the rights of those already in this country to bring in their dependants, shall be changed."—[OFFICIAL REPORT, col. 47.]
§ THE LORD PRIVY SEAL (LORD WINDLESHAM)
My Lords, before the noble and learned Lord continues, could he just help me? Did the words "free of condition" appear in the early part of the quotation which he has just read?
§ LORD WINDLESHAM: In the first one.
LORD GARDINER: Yes.
… already here, free of condition, broadly speaking all working immigrants here, will not be affected.
§ LORD WINDLESHAM
Yes. I hesitated to interrupt the noble Lord, but I think that that is an extremely important point. I just wanted to stress it.
§ LORD GARDINER
The first passage I read, of course, said nothing about "free of condition" and nothing about whether they were settled within the meaning of the Act. The then Home Secretary said:it is enormously important to reassure the immigrants already here as part of our community that they will have no loss of status under the Bill.On the Report stage of the Bill, on June 16, Mr. Maudling said:I said at an earlier stage that I did not intend in any way to prejudice the position of people already here."—[OFFICIAL REPORT, col. 550.]I hope that, having read that and having been told that it was up to us—all the people who deal with immigrants—to pacify them by explaining to them that the Bill did not affect those who were already here, it is some excuse for not having understood the Bill to the contrary. I also hope that I am entitled to take some comfort from the fact that neither the Court of Appeal, nor your Lordships' House in its Judicial Committee was unanimous. Indeed, the noble and learned Lord, Lord Salmon, expressed—and I quote:… concern that the draftsmen of the 1971 Act should have chosen to achieve its retrospective effect through a lybyrinth of verbiage which might well have been as perplexing to many of those who had to consider it in Parliament as it undoubtedly was to those whom it might have deprived of their constitutional rights.He of course agreed with Lord Justice Buckley that the immigrants in question, where here in pursuance of their commonn 2221 law rights, untouched by Section 4 (a) of the 1962 Act, here as Commonwealth citizens. In his view, the operative words:at a time when he is there in breach of the immigration lawsonly meant while committing a breach. In his view they were clearly settled within the meaning of the Act, and must be treated as having been given indefinite leave to remain there at the time when the Act came into force. A majority of the noble and learned Lords, of course, thought otherwise, but when such great minds cannot agree we lesser minds can, I think, be forgiven for not having understood the position.
On June 12 in this House, my noble friend, Baroness White, said: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."—[OFFICIAL REPORT, col. 553.]And the noble Viscount, Viscount Colville of Culross, said: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, 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."—[OFFICIAL REPORT, cols. 555–6.]It seems to me therefore to be now generally agreed that we did not know that the Bill would have this effect.
My next point is to suggest respectfully that we ought to have been told if the Government really knew it themselves. Again, my noble friend, Lord Shepherd, said:I think that the Government had a bounden duty to tell the House, not only for the information of the House and for posssible action, but for the sake of justice to the people who were likely to be affected."—[OFFICIAL REPORT, col. 557.]Later he said: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?2222 And the noble Viscount said:I should have thought in principle the answer was "Yes".—[OFFICIAL REPORT, col. 560.]Then he said—and I respectfully applaud his courage—that he could only give a personal view by saying, "Yes". My Lords, the result of that is that he has acted inadvertently and now has to consider the position which has arisen. The consequence is that people are being blackmailed. Nobody wishes to defend illegal entry where the position is clear. Everybody who came in after the Act recived the Royal Assent knew what the law would be. They know what they were doing and they must meet the consequences. We are left with those—however many they are—who are subject to these provisions.
The sort of thing which happens in practice is well expressed in a statement which has been made by the British Council of Churches where they say:Some of these had been resident in this country for a number of years and had themselves previously gone to the authorities voluntarily to ascertain their position, and had been told that no action would be taken against them. One man who had been four and a half years in Britain, and who had therefore been immune from prosecution even under the three-year rule, was picked up at home by the police and located by his family only after four days, three hours before he was expelled; they were unable to see him or give him his belongings or a change of clothes. Another man who came to Britain illegally in February, 1969, and thus became immune from prosecution in July, 1969, was interviewed by the police in April, 1971, and released. Almost two years later, in March, 1973, after the change in the law he was arrested and nine days later expelled. There had been no trial and no announcement of his arrest.They say that in their view the law is—… inhumane in its treatment of individuals who hitherto had good reason to believe that they were now free to build tip a new life in this country. It has broken up families established in this country for some years. It is also contrary to the traditional sense of British justice and fair play. Further, the absence of any time limit on the power of summary removal is inconsistent with the new time limit now imposed on prosecutions for illegal entry.I do not know exactly what the present position is. I hope, in view of everything that has happened, that the Government will feel under an obligation to tell us what it is. We should like to know, first, how many of these unfortunate people have been deported since the Act came 2223 into force. What is the police practice? How far are they going to call for passports because somebody is suspected of having, for example, broken a traffic regulation? Am I right in thinking that the Ministry of National Insurance will go on demanding passports and giving the information to the Home Office? Is not that in fact contrary to the Civil Service code? Is it right that one Civil Service Department, having 55,000 members in social security offices, is refusing to carry it out, on the ground that it is contrary to the Civil Service code? We have been told that there are 33 cases under consideration. As I understand it, these are all in prison awaiting the exercise of the Home Secretary's decision. May we know in how many of those cases has the Home Secretary come to a decision?
§ LORD WINDLESHAM: None, my Lords.
§ LORD GARDINER
None; I am much obliged. We shall of course be told in due course how many had been expelled by immigration officers before anybody thought of going to a court. I notice that it was said in the other place that in North London alone there are now 29 fatherless families, having to be supported on supplementary benefit. Could the Government give us any idea how many fatherless families there are under this legislation in the country as a whole? May I ask just two more questions before sitting down. One is whether the Government would not consider allowing these people to put their case before an appeal tribunal—the immigration appeal tribunal—instead of having to rely on the discretion of the Minister or of an immigration officer.
The last question, in relation to blackmail, is this. As your Lordships know, the courts may exceptionally allow somebody's name not to be given in court, and this is the practice in blackmail cases where one can be referred to as "Mr. X." The reason for this is the very sensible one that if the name had to be given in court a great many men who were being blackmailed would never go to the police. Those of us who are lawyers take a stronger view about blackmail than lay people tend to do. This is simply because of our own knowledge of the horror which this crime can be. I have come across 2224 cases of men who have been bled for 10 to 20 years. Once one starts paying one goes on and on. In some of the cases the person ends up by shooting himself. I have always thought it one of the most wicked crimes there are.
I know it is said that a very serious view will be taken of blackmail and I have no doubt the courts will deal very sternly with anybody who is blackmailing a coloured immigrant. But what will be the position if they go to the police? Will they be given any guarantee that their names will not be mentioned? I should imagine that that would be crucial to them. Do the Government contemplate taking any special measures if they go to the police and proceedings are taken? Will they then be deported? Can we have any guarantee that if an immigrant who is being blackmailed goes and tells the police they will not use that information to deport him? I do not think anything has been said about this in the other place, and clearly it must be of crucial importance to these people. If, on complaining to the police that they are being blackmailed, they are going to be deported, they will obviously not complain to the police.
The noble Lord, Lord Avebury, gave us an impressive list of the supporters of the Bill. They include Justice, which your Lordships know is very much an all-Party body of lawyers, the vice-chairman being a senior Conservative Member of the other place and the council having on it at least two other Queen's Counsel on the Conservative side of the House in the other place. The best summary of the views of the dissenters is that of Sir Geoffrey Wilson, the Chairman of the Race Relations Board, who has said that the best way of restoring confidence would be for the House of Lords to pass Lord Avebury's Bill. This would remove the threat of summary expulsion from those people who until a recent court ruling had every reason to assume that they were secure.
§ 1.10 p.m.
§ THE LORD PRIVY SEAL (LORD WINDLESHAM)
My Lords, immigration policy is the responsibility of the Home Secretary and I do not intend to get drawn into any discussion of the wider issues as to how people who have entered the country illegally should or should not be treated. My right honourable friend 2225 the Home Secretary made a full statement in another place on Tuesday about this matter and transcripts have been made available in the Printed Paper Office for the use of Peers taking part in our debate to-day. My noble friend, Lord Colville, the Minister of State, represents the interests of the Home Office in this House, and he will therefore be replying to the points raised in the debate. When he has done so, the noble Lord, Lord Avebury, would normally have had the right of reply. Since he is not now the mover of the Motion—as it was moved with some resourcefulness on his behalf by the Leader of the Liberal Party, the noble Lord, Lord Byers—he has lost the right to reply, but I am sure that it would be the wish of the House that, if he asks for leave, he should have an opportunity to speak again at the end of the debate in the normal way.
My sole purpose in intervening now is to reply to a charge that has been made, both in Parliament and outside, that the Government in some way misled Parliament when the Immigration Bill was before Parliament in 1971. As I was the Minister in charge of the Bill in this House, I think it is right that I should take this opportunity to answer these criticisms.
First, I readily accept that immigration and citizenship form a complicated branch of the law, one that is not always fully understood. The reasons why this is so are mainly historical—the growth of the British Empire bringing with it the common status of British subjects; the gradual progress towards independence by Commonwealth countries each in due course obtaining its own citizenship, and the fact that there is no separate citizenship of the United Kingdom since the residuary category includes citizens of the United Kingdom and of the colonies. Moreover, for a number of years—as the noble Lord, Lord Gardiner, will well remember from his experience in introducing the earlier Commonwealth immigrants legislation in this House—there has been a crucial distinction between citizenship and exemption from immigration control. This was recognised in the concept of the right of abode as contained in the 1971 Act. Nevertheless, in the course of our proceedings in that year, various noble Lords in all parts of the House made valiant efforts to master this very difficult subject, and although we may be a little rusty 2226 now, I, like other noble Lords who took part in the debate at that time, have looked back at what was said.
The first thing that has struck me is how little was said by noble Lords opposite about the position of people who had entered the country illegally. When my noble friend Lord Colville of Culross repeated in this House the Home Secretary's Statement on illegal immigration on June 12, following the decision in the House of Lords sitting in its judicial capacity in the case of Azam and Ors. v. The Secretary of State for the Home Department and Anr., the noble Lord, Lord Wade, referred to the first Amendment which was debated when the Immigration Bill was in Committee in your Lordships' House on July 19, 1971. As he and I will well remember, he carried the Amendment against the Government. I also recall with rather more pleasure that it was, in fact, the only Amendment which was carried against the Government in Committee, although it is true to say that a number of concessions were made on Report arising out of points which had been pressed in the course of the Committee stage.
In your Lordships' House on June 12 and at greater length in an interview in the Sunday Times on June 17, the noble Lord, Lord Wade, said that it was his impression that his Amendment wrote into the Bill what was, in effect, an amnesty for people who had entered this country illegally before the Bill became law. His Amendment was subsequently deleted following discussions with myself and the other interested parties in the course of the Summer Recess, and was replaced with a Government Amendment on Report. That Government Amendment now appears in the Act as Section 1(2) and (5). As quoted in the Sunday Times, the noble Lord, Lord Wade, said that he considered that he had been misled in that the new wording to which he had agreed did not give an amnesty to illegal immigrants, which he had sought to achieve in his own Amendment.
Let us look at the Amendment tabled by the noble Lord—the first Amendment—in Committee on July 19, 1971. It read as follows:
"Page 1, line 13, at end insert—('() Nothing in this Act shall have the effect of taking away any right enjoyed by a 2227 Commonwealth citizen immediately prior to the coming into effect of this Act who was a that time ordinarily resident in the United Kingdom and whose residence was not subject to any condition, and nothing in this Act shall adversely affect the status of such a Commonwealth citizen.')"—[OFFICIAL REPORT, 19/7/71; col. 660.]This refers specifically, therefore, to Commonwealth citizens who were, at the time the Act came into effect, ordinarily resident in the United Kingdom and whose residence was not subject to any condition. I would suggest that this was not accidental. The noble Lord, Lord Wade, told us on July 19, 1971, col. 663, that the noble Lord, Lord Foot, had assisted him with the drafting, using his legal knowledge and expertise to do so.
It will be seen, therefore, that the Amendment did not even refer to persons settled here. That did not appear in the wording of the noble Lord's Amendment. "Settled" is a technical term which I always understood, throughout our proceedings in 1971, as meaning a person not subject under the immigration laws to any restriction on the period for which he may remain. The words "ordinarily resident" are referred to in Section 33(2) of the Act, which reads:It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom or in any of the Islands at a time when he is there in breach of the imigration laws.On the same day, July 19, the noble Lord, Lord Shepherd, spoke in support of Lord Wade's Amendment. He has no doubt looked back at what he said on that occasion. He was equally explicit. He said this:… the Home Secretary has made it quite clear that it is the Government's intention that those who are now in this country legally and lawfully shall retain their present rights, But the Bill does not say that. What we wish to see is that what the Home Secretary has said is incorporated in the Bill."—[Col. 671.]In my reply to the debate on that occasion, I sought to allay fears that people already settled here—I used those words—would be affected by the Bill. I also thought it right to point out that the Amendment of the noble Lord, Lord Wade, would not, in fact, achieve its purpose. On the Amendment being carried, your Lordships subsequently accepted a form of words intended to achieve what 2228 the noble Lord, Lord Shepherd, had said he wished to see in the Bill; namely, that those already in this country legally and lawfully—the words he used—would retain their existing rights, and this is now incorporated in Section 1(2) and (5) of the Act. If the Amendment of the noble Lord, Lord Wade, had been retained in the Bill, it would not have protected illegal entrants. As I have shown, it was confined to people "ordinarily resident" here, and Section 33(2) expressly stated that no person "in breach of the immigration laws" could be regarded as "ordinarily resident".
§ LORD AVEBURY
My Lords, in his analysis the noble Lord has omitted to deal with the point that I was making about the ambiguity in the phrase "in breach of the immigration laws". As the noble Lord will know if he has studied the transcript of the Court of Appeal and of the Judicial Committee of your Lordships' House, this was a turning point in the decision on this case. If my noble friend imagined at the time that "in breach of the immigration laws" only referred to a period within which those persons could be prosecuted, they would have retained the immunity which they had acquired under the 1968 Act after six months' residence here.
§ LORD WINDLESHAM
My Lords, the basis of my case is that the Amendment of the noble Lord, Lord Wade, would have given no protection to people who entered this country illegally. The noble Lord, Lord Shepherd, spoke of people here legally and lawfully and said that this was the category of person that he was seeking to present. I am replying to the charge made in the article in the Sunday Times and also touched on in the debate following Lord Colville's repetition of the Home Secretary's statement that the noble Lord, Lord Wade, was misled in some way when he traded in his Amendment for the Government Amendment.
Looking back at our proceedings, I believe there has been misunderstanding of the meaning of the word "settled" as used in Section 1(2) of the Act, in defining those people who are to have indefinite leave to enter or remain in the United Kingdom. The expression was sometimes used in debates in the wide sense of living in this country, yet Section 2229 33(1) of the Act states clearly that the word "settled" is to be construed with Section 2(3)(d), to which I have referred already. This, in turn, provides thatreferences to a person being settled in the United Kingdom and Islands are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain".Section 33(2) provides that:a person is not to be treated … as ordinarily resident … at a time when he is … in breach of the immigration laws".Ministers in this House and in another place throughout use the expression "settled" in its technical sense, as contained in the Bill before both Houses of Parliament at that time, as meaning a person who had been lawfully admitted to this country and who had been accepted for permanent residence. During the proceedings in another place assurances were sought on a number of occasions as to the position of people already here. My right honourable friend, the then Home Secretary, on several occasions gave replies on this point. The noble Lord, Lord Gardiner, selected quotations of his own, but I have other quotations which I shall mention. Of course, if one quarries the Hansard Reports of a very lengthy Committee stage of this sort, it is possible to find occasions when the qualifications were added and other occasions when they may have been admitted. The important thing is that on a number of occasions the then Home Secretary made it very clear.
For instance, in the Third Reading debate on June 17, 1971, at column 771, Mr. Maudling said that it was important to recognise that the Government had taken great care not to change to their detriment the position of people already accepted for settlement in this country, and that it was important that that undertaking should be carried out faithfully. Again, on Report the previous day he had said, in columns 475–76, in answer to a Question from Mr. David Steel on the position of those who had entered illegally, that he regarded this as a matter of discretion and that in the Governments' view the acquisition of a legal right to stay must be a period of legal residence. I cannot accept, therefore, that there was any question of the Government's concealing the meaning of 2230 the Act, nor do I believe that noble Lords opposite can prove from the record that they argued at any stage that protection from removal should be given to those who had entered the country illegally before the passing of the Act.
§ LORD BYERS
My Lords, may I interrupt? The noble Lord used the phrase "legal right to stay". Would not an illegal immigrant who had not been discovered for six months at that time have had a legal right to stay?
§ LORD WINDLESHAM
The answer is "No". It is important to appreciate this distinction. An individual who had entered this country without going through the immigration checks at the ports of entry is here illegally; he was then, and he is to-day. What he had obtained was immunity from prosecution.
§ LORD BYERS
That may be so, my Lords, but may I ask the noble Lord one question? Is he saying that he may be here illegally but he has a legal right to stay because he has not been prosecuted?
§ LORD WINDLESHAM
The noble Lord can play with words, but I think that what I have said is the exact position. He had an immunity which he has now lost, but he was still here illegally.
§ LORD SHEPHERD
My Lords, I am sorry to intervene, but this is very important. When we discussed this matter in Committee on the 1971 Act we were all conscious of the immunity that had been granted to those immigrants who came into this country illegally. That has now been changed retrospectively by the 1971 Act. I put it to the noble Lord, the Leader of the House, whether he does not recognise the very strong feelings of your Lordships' House on any legislation that is retrospective. Perhaps he will remember the Burman Oil Bill and other legislation. Would not the noble Lord think that if the right and the immunities of people were being changed by the Government, it would have been right and would have been the duty of the Minister in both Houses to inform the House as to what the Bill did?
§ LORD WINDLESHAM
My Lords, my case is this. In 1971, it did not appear to me, to my Government colleagues, to the Opposition, or to the organisations concerned with immigration and race 2231 relations that this was a particularly controversial or important point. If it had been, it would have been raised in your Lordships' House, as many of the other issues were. The aim of the Government was to close a loophole which had existed in previous legislation. As I said just now, in reply to the noble Lord, Lord Byers, it did not make something illegal that was legal when it was done. It merely gave power to remove people who had entered illegally knowing that they had done so. In this respect it brought the law relating to Commonwealth citizens in line with what it was for foreign nationals.
§ LORD SHEPHERD
My Lords, is the noble Lord saying here that he, as the Minister responsible, and the Government, in introducing this legislation which removed an existing immunity and was doing so retrospectively, did not have a duty to inform Parliament?
§ LORD WINDLESHAM
Is the noble Lord in return saying that this matter seemed to him to be one of interest or of importance? My Lords, we debated the Bill in both Houses of Parliament for 175 hours. Perhaps this is something which should have been referred to in a Second Reading speech. I have checked back with the officials in my Department and I find that I wrote my own Second Reading speech. Maybe it was in their brief, but I wrote my own Second Reading speech. I did it then, as I have done it since and will do it in the future, on the basis of those major issues which are the concern of Parliament. We must remember that this Bill had had a long passage through the House of Commons before it reached your Lordships' House.
§ LORD BYERS
My Lords, let us get this clear. The noble Lord has admitted that this Bill had the effect of losing an immunity for a subject. That is the deprivation of a constitutional right. Throughout all those debates we were assured that nobody was going to lose any constitutional right, and this is the charge that must be answered.
§ LORD WINDLESHAM
I hope the noble Lord, Lord Byers will read what I have said, when Hansard is available. All our debates, which were extensive, on Lord Wade's Amendment and others, 2232 referred to people who were here legally and lawfully. The assurances given by myself and by the Home Secretary referred to people in that position. The question we are now debating did not arise. I am explaining that the reason it did not arise is that this was not an issue—many issues came up that were extremely controversial—which appeared to be of particular controversy. I would challenge that this was removing a basic constitutional right. I would look at it as the stopping up of a loophole.
§ BARONESS WHITE
My Lords, this is the stopping up of a loophole for the future. We are concerned, however, with the position of those who were not covered by these specific assurances—and I entirely accept what the noble Lord says. I am afraid that I part company with the noble Lord, Lord Wade, on this point. The noble Lord, Lord Windlesham, is quite justified in saying that the specific assurances given to us covered those who were here legally. I am not complaining of that, but I am complaining that a change was made in something crucial. After all, whether one is liable to deportation or not is a crucial matter, not something to be lightly brushed aside, as the noble Lord seems to do. It is after all an immunity, as important as a right.
§ BARONESS GAITSKELL
My Lords, may I ask the noble Lord the Leader of the House a non-legal question? Is he saying that, no matter how long an illegal immigrant has lived in this country, he could be described as not an ordinary resident settled in this country? This is really the point. No amount of semantics or hanky-panky with words will deny the real statement that he implies.
§ LORD WINDLESHAM
One of the difficulties of being your Lordships' Leader is that when something like six or seven interventions occur one after the other, I have nobody sitting beside me to appeal for tolerance and to enable me to continue with my speech. I assure the noble Baroness, Lady White, that I would not dream of lightly brushing this subject aside, as I regard it as an important matter, and that is why I intervened in the debate to-day rather than leaving it to my noble friend Lord Colville. I urge the noble Baroness, 2233 Lady Gaitskell, to look at the wording of the Act. "Settled" is a word with a technical meaning; it does not mean living here, but has a special connotation, and it is contained in the Act.
In the House of Commons, when the Committee stage of the Bill had been concluded, there was a debate on Report on the question of whether or not there should be an amnesty for illegal immigrants, including those who had arrived before the Bill became law. If there was a need for an amnesty as an act of discretion by the Home Secretary, how can it be maintained that Parliament thought that illegal immigrants were safeguarded by the Bill? In our own House, I have already described the course of events in the debates on Clause 1. The Government undertook to implement the spirit of what the noble Lord, Lord Wade, and the noble Lord, Lord Shepherd, had asked for, namely, to provide protection for those who were in this country legally and lawfully. That is exactly what Clause 1, in its amended form subsection (2) and subsection (5)—achieved. It is true that the protection was not given, nor, would I maintain, was it ever intended to be given, to those who had committed an offence by returning to this country clandestinely after being refused admission by an immigration officer under the provisions of the 1962 Act, or who came here clandestinely from March 9, 1968, when the Act of 1968 came into force and made it an offence to land here without being examined by an immigration officer.
I would maintain that it was never intended that protection should be given to illegal entrants. The noble Lord, Lord Wade, never suggested it, and his Amendment would not have achieved it. The noble Lord, Lord Shepherd, never suggested it; indeed, he stated the exact contrary—that protection should be restricted to those lawfully and legally here. That was the Government's intention and that is what the legislation achieved.
§ 1.36 p.m.
§ THE LORD BISHOP OF SOUTHWARK
My Lords, I am sure the noble Lord the Leader of the House knows that I hold him in great respect. It is always a pleasure to hear him speak. I thought 2234 his pleading was so fascinating and accomplished that I hope that I shall be able to employ him for my own services on Judgment Day. I cannot say that I was particularly convinced; in fact, as his speech went on it seemed to be like a recitation of the Athanasian Creed. He admitted that the 1971 Act could in part be incomprehensible, but he insisted that it did not confound the substance.
I wonder to what extent the noble Lord is aware of the incomprehensibility of the Act, even to those who we must assume are reasonably intelligent, let alone to those to whom Acts of Parliament are utterly incomprehensible. I did my best to prepare for this debate by studying the relevant material. I felt that the words of the noble and learned Lord, Lord Salmon, which have already been quoted to-day, were so apposite. The Act has been as perplexing to many of those who have had to consider it in Parliament as it was to many of those who have been deprived of their constitutional rights. If a Member of this House, the noble and learned Lord, can say that it must have been perplexing to us, who deal regularly with Parliamentary matters, is it surprising that it has been even more incomprehensible to the man in the street and the people to whom it applies? That is the first reason why I hope that the Government will accept Lord Avebury's Bill: that there is in the 1971 Act a lack of clarity that has rarely been surpassed. I accept the noble Leader's statement that it was not intended, but it does not alter the fact.
Secondly, I would plead for sheer humanitarian reasons. The noble and learned Lord, Lord Gardiner, has quoted a case that has very much concerned the Churches. It was the case of a man who had been four and a half years in Britain, was picked up by the police and was not located by his family for four days—and then only three hours before he was expelled. He was given no belongings, not even a change of clothes. That is sheer inhumanity. What is more, when that sort of thing becomes known overseas, how can we be certain that our own people overseas will not suffer from the tit-for-tat argument? I wonder whether the Government realise how serious that could be. We have seen the inhumanity of people like General Amin. 2235 May they not be sparking off other inhumanities by this sort of treatment?
Thirdly, there is the matter of community relationships. As one who lives in a part of London where community relationships are an acute problem, something that one is dealing with nearly every day of one's life, I know the illfeeling—indeed, the feelings of hatred—that this sort of thing is causing. It was suggested that the Churches, among others, should give assurances. I frequently have to address meetings and meet coloured people from other countries. In good faith I gave those assurances. One can imagine what they are saying now: that the Bishop, part of the Establishment, is giving them those assurances when there are no assurances to be given. The last few days have been extremely embarrassing for a great many of us, who quite honestly tried to do our best to help the Government when we gave those assurances. I am not accusing the Government of bad faith, but I do wish they had made it crystal clear what was implied when, in order to help them, we gave those assurances.
All that can be said as criticism on the legal side has been said by those noble Lords who know so much more about these matters than I conceivably could. I would conclude by saying that I speak not only for myself or for the Bishops' Bench, but also on behalf of all the denominations in England as represented in the British Council of Churches. This is their conclusion, which I would urge the Government to take into consideration. We do not condone illegal immigration; nor do we seek to enable any who now enter illegally to evade the penalties laid down. But on grounds both of natural justice and of humanity, we warmly sunnort Lord Avebury's Bill to remove the element of retrospection in the Immigration Act 1971, and we trust that it will be speedily approved. In the meantime, we urge the granting of an immediate amnesty to those who, though at present not legally resident in this country, would, but for the retrospective powers contained in the 1971 Act, now be immune from action against them. My Lords, I earnestly plead with the Government to accept the advice that has come from the British Council of Churches.
§ 1.43 p.m.
§ LORD WADE
My Lords, when the Statement which was made by the Home Secretary on June 12 was repeated by the noble Viscount in this House, my first thought was "Good Heavens! I have been taken in." Perhaps it is one of the normal hazards of Parliamentary life to be taken in from time to time by a Government spokesman. Certainly there are times when one fails to spot some important point, especially if it is included in a labyrinth of complicated legislation. I think we all appreciate the fact that the noble Lord, Lord Windlesham, has taken part in this debate. In a few moments, I must naturally comment on some of the things he said.
First of all, I should like to say a few things which seem to me to follow naturally from the observations of the right reverend Prelate. I think we should be concerned not so much about misunderstandings by individual Members of Parliament, in this House or the other, but rather by the people outside. I am thinking not only of members of immigrant communities, but also of people involved in community relations work. After all, they are in a very difficult position. They are always liable to be shot at from both sides. On the one hand, they are told that they are far too concerned about the welfare of immigrant communities; on the other, that they are much too ready to co-operate with the Establishment. They are in an especially difficult position when they receive what they understand is an assurance from one of the highest officers in the Government. There is no doubt that in this particular case many community relations workers have in fact been taken in.
On June 8, the community relations officer in Leeds, whom I know well and for whose work I have a high regard, wrote to me. I shall not read the whole letter, but I should like to take some relevant extracts. It was written on June 8, before the actual judgment was delivered, but there were reports in the Press that the House of Lords might decide that there was this retrospective clement in the law. He says:I am writing to you on a matter of great urgency.Then goes on to explain about those who have been here more than six months, as 2237 outlined by my noble friend Lord Avebury, and whom he regards as:legally here in the sight of the law".He then refers to a written statement by the then Home Secretary, dated February 24, 1971. I believe this was sent to all community relations officers by the Community Relations Commission. He quotes from the statement:I must stress that the Bill will not affect the lives of people already here for permanent settlement. They will be able to continue to live and work here.I can find no reference to the words, "free from conditions" which. in an interjection during the speech of the noble and learned Lord, Lord Gardiner, the noble Lord, Lord Windiesharn, said were so very important.
My correspondent continues to explain that those who have become what the former Home Secretary described as "legally here in the sight of the law—"and I quote again:took it that this assurance applied to them, that their position was not changedby the 1971 Act. He concludes his letter by saying:I am writing to ask that there be no going back on this assurance. To do so is not of course to condone illegal immigration, but rather to see to it that certain legal conditions and guarantees from the Government are maintained.That letter was written on the instructions of the Leeds C.R.O.'s committee, which represents all Parties and Churches, and various immigrant communities.
My Lords, anyone who is accustomed to studying very carefully the wording of a document might say that "already here for permanent settlement" does not necessarily embrace those who are here and intend to remain here for the rest of their lives but did not enter in the proper way. That is certainly arguable: I would not deny that. But it is quite clear to me, how this C.R.O. interpreted it, and I should imagine that every community relations officer in the country will have interpreted the Home Secretary's statement in that way. To that extent I think that they, and others, were misled. This leads me to suggest two very important principles which I think should be observed in this matter of retrospective or retroactive legislation.
First of all, I believe that all retrospective legislation is per se objectionable. 2238 When it is introduced there must be an overwhelming case for showing that it is necessary in the particular circumstances. Secondly, where retrospective provisions are inserted in legislation by Parliament, there is a duty on Parliament and on the Government to make it abundantly clear to all concerned what they are doing; that it is retrospective, who will be affected and how they will be affected. In my view, neither of those principles was observed, neither of the conditions was satisfied. We are of course in some difficulties, because we do not have the Hansard Reports of the debate in the House of Commons the other day, but I did go to hear—
§ LORD WINDLESHAM
My Lords, may I explain that transcripts are available in the Printed Paper Office?
§ LORD WADE
My Lords, I was just going to refer to that. I have the trans-script here. But, as I was about to say, I did go along to the House of Commons to hear the Home Secretary speak in the debate. I am bound to say that I found his speech disappointing. I have a high regard for the present Home Secretary. No doubt he was speaking to his brief, and his officials must have gone to great trouble to find any quotation that might be helpful. But he never tackled the real issue as I have just defined it. Certainly I did not feel that he was able to show that the two principles that I have just mentioned have been observed.
I turn to the comments of the noble Lord, Lord Windlesham. First, I have read the article in the Sunday Times, and I am anxious to show to what extent I agree with it and to what extent I find myself in some disagreement. It contains a reference to Lord Wade's clause as being an "amnesty clause". I cannot recall ever having described it or referred to it as an amnesty clause. It went much wider. The point about those who had been here over the six months was, in a way, incidental, because the clause covered much wider ground. So far as I can recollect, I was not talking about an amnesty clause—and, by the way, the reference to the amnesty clause is not in "quotes". However, I agree entirely with the following passage from the article:But, according to Lord Wade, at no time did Windlesham or his Home Office officials 2239 reveal that they were, in fact, concerned to re-establish one vital element of retrospection.'Taking into account that, whatever the Government thought it had made clear, I was never told publicly or in private of such views', Lord Wade told us, I think that Lord Windlesham for the Government failed in his duty to make this completely clear to me, to Lord Foot and to the House of Lords at large. To that extent I consider I was misled.'
§ I stand by that.
§ LORD WINDLESHAM
My Lords, before the noble Lord leaves that point, can he tell me whether there is any reference to retrospection, either in his own Amendment or in the Amendment submitted by the Government at Report stage, which now appears as subsections (2) and (5) of Section 1?
§ LORD WINDLESHAM
But why should it have been made clear on a clause which contained no reference to it?
§ LORD WADE
The answer can be found in two quotations. I quote first from the debate on the Report stage on October 11, 1971: Lord Windlesham said:Lord Wade's Amendment—that is, the present wording of subsection (2) of the clause—declares that nothing in the Bill shall take away any right enjoyed by a Commonwealth citizen settled here nor shall the status of such a person be adversely affected."—[OFFICIAL REPORT, 11/10/71. c. 210.]He explained that the Government had decided that there could be some improvements on the clause. I wish to make it clear that I am not claiming that I was hoodwinked by the new clause. The Government's new clause was an attempt to improve on mine.
Lord Windlesham then said (col. 211):Thus, while there are these objections to the wording of the noble Lord's Amendment as printed in the Bill, after further consideration we have come to the conclusion that it would be right and in accordance with the wishes of the House as expressed in a Division at the Committee stage to give greater prominence in the Bill to the safeguarding of the rights of existing residents.That is the real point: what is meant by "existing residents"? Many people 2240 assumed that existing residents were people who, for one reason or another, were entitled to remain as existing residents. It is the overturning of that which has been found disturbing.
I return to the letter from the Leeds community relations officer. It would have been so easy for the Home Secretary to say, "We do not want there to be any misunderstanding. The object of the letter was to clear up misunderstanding. Therefore we shall make it clear—and when you are asked for advice will you, the C.R.O., make it clear?—that in one respect we are making the law work backwards, because we are taking away the immunity enjoyed by those who came in illegally but are immune by virtue of the six months' rule. In that respect the law is retroactive, as now stated by the House of Lords." If only the Home Secretary had said that, the situation would have been rather different.
The trouble is (and this follows what has been said by the right reverend Prelate) that the very people on whom the Government should depend in the field of community relations were, I suggest, taken in. I am not referring only to community relations officers in local communities. It is clear to me, from a conversation I had yesterday with the Chairman of the Community Relations Commission, and from an examination of the Report of the Commission for the year 1971-72, that throughout the proceedings on the Bill in 1971 the Commission did not become aware of the intention of the Government to make the provisions retroactive, as the House of Lords has now decided to be the case.
This non-disclosure is one of the reasons why I was astonished at the Home Secretary's statement that this was what the Government had intended all the time that the law should be. Those who are rather uneasy about the Home Office—. and, alas!, there are such—have a feeling that this has been introduced surreptitiously. I hope that they are wrong, but there is that impression. It is damaging to the image of the Home Office and it makes everyone's task more difficult, both in improving community relations and in securing co-operation in tackling the evil of illegal immigration.
Some noble Lords will remember the debate on the Burmah Oil Bill. It was 2241 an impressive debate on the subject of retrospective legislation. But I remember some people—in the country, not in the House—asking, "Why are you so worried about retrospective legislation when it is only an oil company? It can afford to lose." To-day some people are saying to me, "Why are you so worried about this retroactive provision when it is only a group of immigrants? Why worry about them?" My Lords, what matters is the principle, the way in which our Legislature works. Incidentally, if the retrospective provisions in the Burmah Oil case had been incorporated into a labyrinth of legislative provisions and not detected until some time afterwards, what an uproar there would have been!
Having regard to the judicial Opinions of both Lord Wilberforce and Lord Salmon, I think that the law should be amended. The Government clearly failed in their duty, at the time of the 1971 Bill, to make clear what they were doing and what they intended to do. I fear that consequences may be far-reaching and that the value of Ministers' assurances may be depreciated.
The time may well have arrived when there should be radical changes in and expansion of the functions of the Community Relations Commission and the community relations councils. In the new set-up it may be better for their activities to be the responsibility of some Department other than the Home Office. But, whatever the new set-up may be, it is essential that there should be mutual trust between the Government and those concerned with community relations.
My Lords, we are not presuming to seek to overrule the decision of the highest Court in the land; we are considering what the law should be. What the law should be was put very well in the interpretation of the law by the noble and learned Lord, Lord Salmon. in his dissenting Opinion. The Bill gives an opportunity to amend the law accordingly, and the least the Government should do, in all the circumstances, is to support the Bill on Second Reading so that it may be considered further in Committee. I hope that no Vote may be necessary, but if there is one I shall certainly vote for the Bill.
§ 2.2 p.m.
§ LORD BROCKWAY
My Lords, I had intended to begin by referring to the quite extraordinary list of organisations which are urging support for Lord Avebury's Bill, but that was indicated by Lord Avebury himself and also by my noble and learned friend Lord Gardiner. I want to emphasise only two of those pressures. The first is the quite extraordinary—and, I think, unprecedented—intervention by statutory bodies, the Race Relations Board and the Community Relations Commission. They have intervened because they appreciate the effect of the Government's interpretation of this legislation upon the immigrant community in this country. Supplementing the fact is that I have never known the immigrant community in this country more angry than it is at this moment. It is absolutely disastrous for good community relations.
The first simple point that I put to Her Majesty's Government is this. Their interpretation of the 1971 Act, in its results, is not comparable in its advantages to them with the disadvantages to race relations in our society. I have listened to this debate with growing impatience. We have just been discussing legal niceties; we have been discussing whether Her Majesty's Government have mislead the House or not; we have been discussing the legal definition of settlers and of those who are ordinarily resident, and whether individuals were here legally or whether they were here only under immunity from prosecution. I am impatient with these discussions about legal niceties. The real issue is a human problem that we have hardly faced at all in the debate which has taken place.
I want to look only very incidentally at the issue of Government undertakings. I want to be fair to the noble Lord, Lord Windlesham, who was responsible for the debate in this House on the 1971 Immigration Act. When that debate was taking place the problem of illegal immigrants was very little in our minds. It was very little in the minds of those of us opposing the Bill, and very little in the minds of the Government in presenting the Bill. Therefore I accept at once that there was no attempt to hide the Government's intentions. But the statements of Mr. Richard Sharpies in another place have been interpreted as 2243 meaning that those who were here as illegal immigrants were not included, because he spoke of those who were settled here. That distinction cannot be applied to the undertaking then given by Mr. Maudling, the Home Secretary. In his assurance there were no reservations at all. His words were as follows:It is of the utmost importance that when we undertake that people already here will not be affected by the Bill that undertaking should be carried out faithfully …There were no reservations or limitations there: "people already here". Even if illegal immigrants were not then in our minds, it is difficult, therefore, to say that that was not an undertaking by the Government that the Bill would not affect all those already here.
Let me just make one confession. I intervened so frequently during the debate on the 1971 Bill that when I looked up the index of my interventions it was completely impossible for me to identify them all. However, I am under the very strong impression—and perhaps we can return to it at the Committee stage—that during the Committee stage I asked the noble Lord, Lord Windlesham, who was in charge of the Bill, whether it would have a prejudicial effect on immigrants already here. I think my memory is correct in saying that the noble Lord, Lord Windlesham, replied that it would not have. I apologise to the House. I have spent a long time in looking up all those references, but I have not yet found it. Perhaps we can revert to it at the Committee stage.
I am so impatient with all the controversy in this House about legal definitions. I want to look at the effects which the 1971 Act has already bad and the effects which it is likely to have in the future. The Minister will be able to reply more accurately than I can to-day, but yesterday there were 36 prisoners still held who were due for removal. Up to yesterday there were 13—there may be more now—who had already been deported. Let me refer first to the 13 who have already been deported. They were rushed out of this country in a deplorably inhuman way. In not one of those 13 cases was any contact allowed with their relatives before they were deported. One left with no clothes, no belongings, without his relatives being 2244 informed, and the Ministry was so incompetent that, though he should have been returned to the Punjab, he was returned to Bombay instead of Delhi. I would ask the Minister to examine very carefully those appalling inhumanities which were committed in the case of those 13 who have already been deported, in order to prevent such appalling circumstances being renewed about those remaining.
Now, my Lords, I look at the 36 who are still here. I want to say at once that I am deeply indebted to Mrs. Mary Dines, who is the secretary of the Joint Council for the Welfare of Commonwealth Immigrants. That woman knows more about this problem than any other person in this country, and she has been to Pentonville Prison and has interviewed—with the co-operation of the Home Office; I recognise this—the 36 people who are there.
I have had the opportunity of seeing the results of those interviews with 17 of those who are in Pentonville Prison. These are the startling facts: of the 17, eight had already been interviewed by the police and released by them on the grounds that they were not liable to deportation under the six months' rule, and they were here feeling that they were secure. They did not hide from the authorities, but, nevertheless, after that endorsement by the authorities they were picked up and they are to be deported.
THE MINISTER OF STATE, HOME OFFICE (VISCOUNT COLVILLE OF CULROSS)
My Lords, really the noble Lord cannot get away with that. The noble Lord knows perfectly well that my right honourable friend has said that no decision has yet been taken upon those 36. Representations are still open to be made—I think up until to-day—and that each and every one of those cases, and all the others of a similar sort, will be most carefully considered by a Minister before any decision is taken. It simply is not right that the noble Lord should say that they will be deported. That decision has not been made.
§ LORD BROCKWAY
My Lords, I am deeply encouraged by the intensity with which the noble Viscount has spoken. It shows that I am getting through. I withdraw at once what I said about these people being deported. However, they are being picked up and kept in Pentonville Prison, and they are under the threat 2245 of deportation. I can assure the noble Viscount that those of us who are concerned about these people will be putting their cases to him in great detail and with great intensity, so that the Minister can consider them.
Eight out of the 17 had been interrogated by the police, and released, and given the assurance of security under the six months' rule, but they have been arrested despite that. One of these eight had actually asked the immigration authorities for advice. He acknowledged that he was here illegally and asked for advice. He was questioned and then again released. He though he had security. Three months later he was picked up by the police and now he is a prisoner in Pentonville gaol.
Two of these 17 prisoners have wives in the United Kingdom, and yet they are under the threat of deportation. One of these wives had been admitted on an entry certificate from the British High Commissioner in Delhi. There is the wife, admitted by the authority of the British High Commission in India. There is her husband, in Pentonville Prison awaiting deportation. I want to emphasise that all these people were picked up at the places where they work, in front of their workmates, or at home. I do not know of one of these cases where the person was in hiding. More than half of them had gone to the authorities themselves, and this is the treatment they receive.
I want to urge that suspects should be served by the police with a notice of removal, if that is the intention; that they should be given a letter to the effect that they can make representations to the Home Office; and that, when that has been done, they should be released—if necessary, with surety—and asked to report daily to the police. It is absolutely wrong that these men, against whom no decision has been reached regarding deportation, should be kept in Pentonville Prison week after week, instead of having the opportunity of presenting their cases as free persons to the Home Office. The provision that they should report daily to the police should avoid any fear that they would seek to avoid arrest.
I am concerned with the human issues in this case, and I will give the Minister the cases of three men who are in Penton- 2246 ville Prison at present. The first is the case of Afzal Awan. He is a Pakistani and he entered this country illegally in March, 1970. He told the Immigration Service in February of this year that he was an illegal immigrant and asked for advice as to how he could regularise his position. On making that confession, he was detained for two hours and then released. He thought that he had security under the six months' arrangement. On May 8 the police arrested him at his place of work before all his workmates, although he had committed no crime and indeed had been such a good worker that his firm had applied for a work permit for him.
My second illustration is Mr. Sehan Singh. He arrived in this country in December, 1968. In October, his wife and child were admitted in this country for permanent settlement as bona fide dependants because at that time Mr. Singh could not be removed from this country because he came under the six months' provision. Again he had a good employment record; again, his etnployers had asked for a work permit. He was picked up, and is now in Pentonville Prison.
My Lords, my third case, Mr. Sarbjit Singh, an Indian, arrived in 1969. He was picked up in 1972 and interviewed by the police. The officer who was interviewing him telephoned the Home Office and, as a result of this telephone call, he was released. He thought he had security under the six months' rule; now he has been picked up again and is in Pentonville Prison. I say to the Government that it is utterly inhuman. that men who thought with reason that they had security in this country because of the old six months' rule of immunity, who are doing good service in the country and have no criminal record, should be picked up in this way. I apologise for speaking at some length, but I speak with some knowledge and with deep feeling. I want to take up just two other issues.
I am very glad that the noble Lord, Lord Windlesham, is here. In his absence I paid some tribute to the way in which he conducted the proceedings during the 1971 Act. He will remember that I moved an Amendment during the discussion on that Bill which would have removed the authority of the police to act in the case of immigrants and that 2247 the noble Lord gave the assurance, even though the terms of the Bill were not changed, that the police would not have such authority and that it would remain with the employment exchanges to which the immigrant can go under the employment scheme for insurance cards. I accepted that. I assured my friends in the immigrant organisations that that was true.
What do we now find? Now the Government are using the information given to the employment exchanges when these men ask for insurance cards to inform the Home Office. The result is that the Home Office, with the knowledge gained from these insurance cards, is going to their place of work to pick these men up and arrest them. I regard it as a fundamental repudiation of civil rights in this country that one portion of the Civil Service, dealing with an issue utterly irrelevant to the issue on which arrests are made, should give information and enable, by that information, arrests of this character to be carried out. It is a disgraceful repudiation, and not only of civil rights. I am glad to see that the Civil Service Union is instructing its officers to refuse to demand passports in these cases, because they feel it so deeply. It is another action by Her Majesty's Government against fundamental civil rights in our country.
My last point is this. I wonder whether it has been in the Government's mind at all. We have perhaps 10,000 illegal immigrants in this country, many with British passports which guarantee British protection in the name of Her Majesty. We are not the only people who have illegal immigrants as the result of the Government's refusal to allow those who hold British passports to come to this country. There are now 10,000 United Kingdom passport holders in India and Pakistan and they are there just as illegally as the immigrants in this country. Suppose India and Pakistan begin to act as our Government have acted. Where are they to go? How can they be refused admission into this country? There are nearly 50,000 illegal immigrants in East and Central Africa and in Asia—United Kingdom passport holders. Suppose their Governments act in this stupidly parochial way of Her Majesty's Government and say, "We shall deport 2248 them". We would have to accept them here; they hold our passports.
I conclude, as I always like to conclude, on a constructive note. It is time that this Government began to enter into discussion with all the Commonwealth Governments concerned, in East Africa, in India and in Pakistan, to come to a sensible arrangement about this problem of United Kingdom passport holders who are scattered about the world and who have no place in any existing sovereign country. One cannot look at this entirely from the point of view of the immigrants in Britain. One must look at it from the point of view of the illegal immigrants all over the world. The sooner we can discuss the matter with the Governments involved, the better it will be for a solution to this problem.
§ 2.30 p.m.
§ LORD FOOT
My Lords, I hope to be very brief. I intend to address myself to only one aspect of the matter which we are discussing this afternoon. Much of the debate has been taken up by the consideration of whether the Government really intended this; whether they knew what they were doing and whether they were sufficiently precise in the explanations they gave in this House and in the other place about what these provisions involved, and in particular about the retroactive effect of them.
If the noble Lord, Lord Windlesham, will not resent my coming to his aid, may I say that I think that in this House, at least, one of the reasons there may have been a failure of communication, and we were not given assurances on the meaning of the Bill with sufficient precision, proceeded from the fact that, as I have always maintained, the only person who understood the Bill when it was going through this House was the noble Lord himself. As a result of that, when he used words like "settled" and "ordinarily resident" they meant something quite precise to him, whereas they may not have meant the same to the more ignorant Members of the House, both on the Government side and in Opposition. I think that is one of the reasons why things were not made as plain to us as they might have been. But I do not want to discuss that, because during this debate I felt that we have not yet got to the heart of the matter.
2249 There was a very useful piece of crosstalk, if I may call it that, to try to arrive at an agreement as to what effect the provisions of the 1971 Act, in particular Section 1(2) had upon the illegal immigrants who had come into this country between 1968 and December 31, 1972, without going through the ports of entry and without submitting themselves to examination. There was some semantic argument as to whether they were illegal or whether they were merely immune. If I understand it, we now agree that the effect of the 1968 legislation was to provide an immunity to those people who came into this country clandestinely—failing to go through the process of immigration examination—and then were able for a period of six months to keep away from the authorities so that the time in which they could be prosecuted for the summary offence had expired. I think noble Lords will agree with me when I say that not only did those persons, if they avoided prosecution for the period of six months, achieve immunity from prosecution, but also by the same token they obtained immunity from detention and removal. In other words, the status of those people, once they had acquired that immunity, was exactly the same as that of the people who had come in legally and settled in this country.
I think that that is an area of agreement between us. If that is so, I suggest it is arguable that the way in which we went about the provision of that immunity in 1968—and indeed in 1962—may be open to criticism, because we used a rather curious sidelong way by making it a summary offence and then saying that such a person could not be prosecuted after six months. What is not arguable. I suggest, is that the Government did not quite know what they were doing in 1968. They intended to give those people that immunity, quite deliberately. It is stated very clearly in the Acts of 1962 and 1968 that that was the Government's intention. We find under the Immigration Act 1971 what the intentions of the Government were in 1971. The question which I suggest arises is this: if Parliament quite deliberately provided that status of immunity for those people in that way, what was the constitutional effect of the removal of that immunity under the 1971 Act?
There has been much talk of an amnesty, and it has been suggested that 2250 the effect of my noble friend's Bill will be to give these people an amnesty. I suggest that that is using quite improper language. An amnesty suggests (does it not?) that the Government are granting somebody a special dispensation out of considerations of humanity and common mercy? What is being asked for now in the Bill is not that there should be some merciful action on the part of the Government. What is being asked for is that there should be restored to those people that immunity of which they were improperly and retroactively deprived by the 1971 Act. Whether it was intended or not, the fact is that the immunity provided by the 1968 Act was in itself a measure of amnesty, and all we are asking is that that measure of amnesty and that immunity which those immigrants enjoyed up to December, 1972, should be restored to them.
I still wonder whether the Government have fully realised the evils which they are loosing on us by opening the Pandora's box of retrospection. I wonder whether the Government yet realise why this decision in the House of Lords and this revelation of the meaning of the 1971 Act has brought about what can almost be termed a tidal wave of apprehension among the immigrant communities. May I try to explain in a few sentences why I believe this has occurred. It is not merely due to the fact that an unknown number of people caught by this retroactive legislation are now at desperate risk, and will remain at risk for the rest of their natural lives, perhaps living in constant fear. All that has been spoken about. The reason why this decision and the revelation of what the Act is about have caused such consternation among all immigrants in this country is because they are saying to themselves: "If an immunity which was enjoyed by some members of our community can be removed retroactively by a Government, what is to stop another Government in the future using that weapon of retrospection and retroactivity with much more effect than has been done by the compassionate Government we have at present?" This is the evil; this is the wrong of the matter. The Government have opened the door of retrospection. That door may be pushed much wider by Governments who are not so well disposed to the immigrant population in this country
2251 That is the reason—and I hope that Members of the Government will appreciate this—why the immigrant communities in this country are not simply concerned for their bretheren who are in immediate trouble and at immediate risk. They are desperately concerned about whether assurances given by a Government, either verbally, in writing or in an Act of Parliament really mean anything, if a subsequent Government can come along and abrogate rights or immunities which have been vested in people at an earlier date.
I ask the Government to consider this. I suggest that if they do not take this last opportunity—because I suppose it is the last opportunity—of removing this wrong from this Act or Parliament and putting it right, the cost that will be paid in terms of human misery, anxiety and apprehension extending over perhaps decades to come and the damage which will be done to this multi-racial society of ours is beyond telling.
§ 2.40 p.m.
§ LORD GRIDLEY
My Lords, I do not think that I have ever taken part in a debate in which I have found it so difficult to make a speech at this stage. The main part of the early speeches dealt exclusively with what noble Lords have taken to be the legal interpretations of certain provisions in the 1971 and 1968 Acts. We had a speech from the noble Lord, Lord Brockway, who took us away from that situation to some extent, giving us indications of where he thought that unfair excesses occurred in this country, that injustices were perpetrated against immigrants who had come here, and making allegations, I rather thought, of inefficiency on the part of the Home Office and Her Majesty's Ministers.
In reply to that charge, in consideration of the situation which he depicted, I find it difficult to understand that so many people wish to come to this country if that is the way in which they are treated when they come. In any case, I feel that the noble Lord, the Secretary of State for the Home Office, will be able to reply in some way to meet some of the allegations which have been made by the noble Lord, Lord Brockway. While I do not doubt the sincerity of those who 2252 have spoken in favour of the Amendment of the noble Lord, Lord Avebury, to remove what they consider to have been the element of retrospection in the. Immigration Act of 1971, may I, if I disagree with some of the statements which they have made and paint what I feel is rather a different situation, please ask them to understand that I speak also with all the sincerity with which they have spoken.
Even if there were some misinterpretation—and this debate has taken rather an extraordinary line—if I understand the position, I think that my noble friend the Leader of the House gave it as his interpretation that although the six months provision which protected an illegal immigration now no longer prevailed, that illegal immigrant, though he enjoyed a certain immunity under the 1968 Act, under the 1971 Act once an illegal immigrant he is always an illegal immigrant. I think that that was the position taken by the Government.
As a result, if this is an injustice which is perpetrated upon those who enjoyed a certain immunity under the six months provision. I think on the whole that the Government intend to meet the situation with a certain amount of fairness and compassion. Let us remember that whatever is said in this context, we are dealing with people who originally came in unlawfully and undetected— that is to say, they were in the first instance illegal immigrants. I quote what my right honourable friend the Home Secretary had to say on these very issues as reported at column 216 in the Hansard verbatim report of June 26 in another place:The police will have to deal with cases that come to their notice but in all cases where an illegal immigrant is immune from prosecution and came here after 9th March. 1968, the case will have to be reported to the Home Office … every such case will be considered not only by officials but also personally by a Minister. We shall consider carefully and with understanding all relevant factors. We shall take into account the length of time the man has been in this country, the strength of his connections here, together with his personal history including employment and the like. We shall also take account of his family circumstances and give full weight to them. Age and medical condition will also be considered as will any other compassionate circumstances. We shall … consider representations which may be made by the immigrant or on his behalf … ".2253 What is my right honourable friend the Home Secretary doing? He is obviously going to allow to remain here certain categories of immigrants who in the first place entered this country illegally. He is going to administer the retrospection issue, if a retrospection exists in the 1971 Act, with compassion. I do not know of any other Government anywhere in the world who would do this in circumstances of this kind.
Who are the people involved? As I have said, they are people who in the first place entered the country illegally and broke our laws. What about the illegal immigrant who comes in here undetected? Do we know anything about his background? Is he a desirable person to have here? If he is undesirable, will he be helpful to good race relations? What about jumping the queue in the face of those who have come here legally? Is this not an irritant which will be resented by those who have come in legally and thus also an issue which affects good race relations?
§ LORD AVEBURY
My Lords, perhaps the noble Lord will allow me to intervene. He has just raised a very important point. He asks whether the illegal immigrants will be resented by their fellow immigrants who arrived here legally. He may not have been here when I spoke at the beginning of the debate. I quoted the Indian Workers' Association which expressed very strong concern about this. All the other immigrants' associations are making the same point. The evidence is there to prove to the noble Lord that the people who came here legally are concerned on behalf of their fellow immigrants who arrived here illegally in the first place although they had acquired this immunity. That is the answer to his question.
§ LORD GRIDLEY
My Lords, in answering the noble Lord's intervention, I do not deny that people have expressed various opinions on this subject. I do not know for how many people these organisations speak. I think—and I would ask the House to believe—that I have a certain amount of personal knowledge of overseas people and certain immigrants who have come here. It has been expressed to me that the action of persons who will run the risk of entering this country unlawfully is something 2254 which people who have established themselves in various parts of the world and have come to be respected that do not like to see and cannot regard with equanimity. That is my answer to the noble Lord.
Now, what about the vast organisations which are bringing illegal immigrants to this country? May I say this to the noble Lord, Lord Avebury, whose sincerity I respect. If we were to amend the Immigration Act 1971. should we not be playing into the hands of those people? They would be able to say to the would-be immigrant, "Yes, you are subject to deportation if caught, but the Government of Britain are pretty soft; they passed an Act to deal with those who went in illegally in the past and who may go in in the future, but you have only to be there long enough and a softhearted Legislature will let you get away with it". Do we wish to encourage a situation of that sort?
The international traders in illegal immigration are ruthless men and totally unscrupulous. I do not wish to digress at any length', but when I was controller of customs overseas, in Malaya, dealing with illegal immigration and smuggling, I found that some of the men taking part in activities of this kind were the most nefarious people that one could meet anywhere in the world. So I submit that we should do nothing to make the activities of these people any easier.
But what about the illegal immigrant who came into this country illegally in the first place? He came from countries which are lawfully and newly independent, whose people were considered to be responsible for their own actions and capable of standing on their own feet. He is supposed to be a responsible individual. There is no doubt that when he came here he knew very well that he was carrying out an illegal act. I cannot support those people who, in my view, seem to have excessive sympathy for this category of person. In these and similar debates in your Lordships' House I have expressed concern often for the wellbeing and happiness of overseas people. That is natural if one has lived and moved among them for over thirty years. If I have no sympathy for Lord Avebury's Bill it is because I do not believe that it helps in any way the furtherance of good race relations. In 2255 the past, in my concern for overseas people I have been accused on occasions by those who would support Lord Avebury, as being over-paternalistic. Are they not now, in their turn, exhibiting a concern which is over-paternalistic?
Our immigration laws are to be respected and obeyed. We cannot break faith with our own people in this country, who are never praised for their tolerance. In all the speeches tonight that have gone before me I have heard no mention of the great tolerance of the British people who, over twenty years, have absorbed vast numbers of people. I think that the noble Lord, Lord Avebury, mentioned the report of the Chairman of the Race Relations Board and I believe it was mentioned also by the noble Lord, Lord Gardiner. I should have been much more impressed if, when he was representing the views of the immigrant community coming into this country, some credit and praise had been given also to our organisation for settling the people who have come here and absorbing them in such numbers. This, in itself, would have been a reassurance. We never get any praise or appreciation of the way that the British people behave in this respect.
That is all I have to say. If this Bill goes to a Division, I ask noble Lords to support the Government and reject the Amendment. The Government have given totally adequate assurances to meet the situation. I do not want us to play into the hands of undesirable elements. I am not trying to frighten the House, but I am convinced that a danger does exist. We should not exhibit any weakness in our immigration laws. For the reasons that I have given, I hope that your Lordships will support Her Majesty's Government.
§ 2.55 p.m.
§ BARONESS SEEAR
My Lords, I shall be extremely brief, as I intend to make only one point. I do not intend to discuss the complex legal issues already dealt with by others far more competent to deal with them than I. I speak as a member of some years' standing of a conciliation committee under the Race Relations Board. Quite deliberately, I have not discussed what I am about to say with either anyone on the board or any members of the Commission. Those of us who have been involved directly in this work 2256 know that it is not easy to get or to hold the confidence of the immigrant community. We find this even on the committees on which we sit where, in face of what seemed to us reasonable arguments, opinion divides frequently between the immigrant and the white members of the committee, because of prejudices which are aroused all too easily.
Again I ask the Government and this House to think of the problems of the people who, as a result of an Act of Parliament, have taken on the work of trying to develop peaceful race relations in this country, and to consider their position in the face of this decision. It is not a matter of whether it is correct legally and technically. Here we are dealing primarily with the reactions of the immigrant population. This is bad enough from the point of view of the Race Relations Board, which has the important but limited task of enforcing the Race Relations Act; but at least it has a law behind it. Think of the position of the Community Relations Commission—the people who have no legal powers and whose work, I assume, we all support.
I take it that no one in this House is complacent about the state of race relations in this country. It is by no means an assured matter that we shall win the battle for peaceful race relations in the United Kingdom. The Community Relations Commission has no powers; it relies entirely on the development of good will and trust. How can that trust be maintained in the face of the Government's action at the present time? We are undermining the instrument which has been set up to do a task which all agree needs to be done. There is no doubt that nothing would be better to restore the position than for the Government to say that it is unnecessary for them to continue with the policy on which they have embarked. The Government have not explained—and I hope that the noble Viscount, Lord Colville, will do so—why they think it necessary to take this action. We are dealing with a very small number of people, and the danger to race relations in this country, the weakening of the position of the community relations workers up and down this country, is of altogether greater importance than any benefit that the Government think will be derived from the policy they are now adopting. If the Government will not do 2257 this—and I have not given up hope that they will—I ask them: will they look closely at what is surely a most peculiarly unfortunate situation? The very Government Department which is responsible for immigrant policy—the Home Office—is also responsible for the work of the Community Relations Commission. Do the Government not have the imagination to see how incredibly difficult it is for people handling community relations when the immigrant population knows that the very same Department is responsible for measures which the immigrant population —one might say misunderstandings—totally rejects? Will the Government not make absolutely clear to the country, and above all to the immigrant population, that the work of the Community Relations Commission is free from all day-to-day control by the Home Office? Of course, the Commission must be responsible to the Minister, but if it could be said that the Home Office—seen, as it is bound to be seen, in immigrant eyes as suspect if the likely policy of the Government is adopted—has no direct control over the day-to-day operation of the Commission, this would do something at least to re-establish the Commission in the eyes of the immigrant population and to give it a decent chance to do the difficult job with which we have entrusted it.
§ 3.0 p.m.
§ LORD SHEPHERD
My Lords, I had not intended to intervene in this debate, but the noble Lord, Lord Windlesham, referred to me and to the words I spoke in the Committee stage of the 1971 Act in support of the Amendment moved by the noble Lord, Lord Wade. On that occasion, I think, many of us had sympathy with the noble Lord, Lord Windlesham. I certainly had, because I shared, in some ways, a similar responsibility in having to wind up after seeing the 1968 Immigration Act through your Lordships' House. There were deep divisions then; I think it could be said that both Parties were split on it. But there was one unanimity of view; namely, that the immigrants who were in this country were to be treated with dignity and in the same way as we treat our own nationals.
In reply to the noble Lord, Lord Gridley, I would say that I am certain we all appreciate the good humour and tolerance of all sections of our com 2258 munity one towards another, because we are in fact a nation of immigrants. This is a human matter. One is not conscious only of the vulnerability of the immigrant himself who may have come into this country illegally, but one must also be deeply conscious of the wife—who may well not know that her husband is an illegal immigrant—and also of the position of the children, have no doubt at all that the noble Viscount, Lord Colville, in those circumstances, would take such things very much into account, if a matter lay on his desk for judgment.
My Lords, I rise on the Parliamentary position, because this is an aspect referred to by the noble Lord, Lord Windlesham. He said, I think, that your Lordships' House, both in Committee and on Report, did not raise the question of the illegal immigrant and, in particular, the case of the immunity arising. I myself had always regarded the word "settlement" (as I am sure most of us had) as meaning cases where a person might have entered illegally but, under the system of immunity after six months, had acquired a right of settlement. I think it was quite clear in all our minds that, once an immigrant has achieved immunity, he could not be deported. The Act removes that immunity and that right. Parliament has always been jealous of the rights of our citizens. I have been involved in two pieces of legislation which had a degree of retrospection. As I said in an intervention to the noble Lord, Lord Windlesham, I personally can have no doubt at all—nor, I think, can he—as to your Lordships' view on any legislation which is retrospective.
On the War Damage Bill in 1965, which removed certain rights, the noble and learned Viscount, Lord Dilhorne, speaking from this Bench on behalf of the Conservative Party, acknowledged that there are occasions when it is necessary to take retrospective action. In replying to me, when I moved that Bill, he acknowledged that I had been forthcoming and had made quite clear what the retrospective element within the Act was. Later on, he drew attention to the judgment of Mr. Justice Wills in the well-known case of Phillips v. Hare, in which he said that any legislation ought 2259 not to change the character of past transactions carried upon the faith of the existing law.
My Lords, prior to the passing of the 1971 Act, we had this immunity, this right. It was removed, I personally believe inadvertently, by the Government, despite what they say. I believe that the noble Lord, Lord Windlesham, had he known of the retrospective aspects of the 1971 Bill, that it was removing a right which had been enjoyed by citizens of this country, would have been one of the first to make that quite clear. But he did not. I do not accuse him of misleading the House. I believe that there was uncertainty either in his mind or within the home Office. A major ti011——the right of immunity—has been removed, inadvertently, I believe. It was certainly done without the knowledge and understanding of Parliament.
This may not be the occasion on which this particular issue can be resolved. Although I would support the Bill now before the House, I suspect that it may need consideration by the Government. I would ask the noble Viscount to consider carefully whether it is right for Parliament to remove rights without being fully aware of what it is doing. I hope that this Bill will be given a Second Reading. I hope that it will not be opposed, so that at least we can go into the matter in greater depth in Committee-perhaps on an occasion when your Lordships' House may be a little fuller, though I recognise that the House is fuller than it was some hours ago.
§ 3.8 p.m.
§ LORD RITCHIE-CALDER
My Lords, I shall be very brief. I rise to my feet only because I was a member of the Community Relations Board, and I would only say to the noble Lord, Lord Gridley, that some of the work credit for which he says the Chairman of the Race Relations Board should have given to the people of this country is something which die Community Relations and the Race Relations Board were partly responsible for. We have had in the country the gradual creation of an understanding, or confirmation of the general compassion and humanity of this country.
I feel, without any question at all, that these latest judgments heavily and dan 2260 gerously undermine the whole basis of community relations, because the immigrant population do not know where it will stop. We talk about illegal this and illegal that, but I wonder what capacity many of these people have of understanding the legal niceties and so forth. Are we going to have a situation where there is a knock at the door in the night—. something which this country has always abhored? Are we going to have blackmail—my noble and learned friend, Lord Gardiner has pointed out it is blackmail —because at any moment and at any time these people can be peached upon? They will never have any security, and in their basic insecurity we shall never have proper community relations.
§ 3.10 p.m.
§ LORD CHORLEY
My Lords, I rise to mention an incident which occurred to me within the Palace of Westminster a year or so ago and which seems to an unanswerable reason why the law which has now been laid down in your Lordships' House by the Judicial Committee should be altered. I was sitting on these Benches when a note was brought in to me by one of the ushers, asking me if I would see a gentleman in the Lords' Lobby for a minute or two. It was signed with an Oriental name, Indian or Pakistani. I naturally went out and found a middle-aged man whom I had never seen before and have never seen since. He said he wanted to ask my opinion on behalf of a friend of his. He said that he understood I was interested in civil liberty and spoke for civil liberty.
I asked him what it was all about. He replied that he had a friend who had been living in this country for quite a time, who had come here—whether it was from India or Pakistan I do not remember—without a permit. He had no right to be here, but of course he had been here for so long a period that, until quite recently, he was not worried. He was now worried because of the new Act of Parliament, and he wondered whether that destroyed the liberty which he had been enjoying to live in this country over those last years. That was the 1971 Act, of course. I should say that I have not taken the view which has been expressed by so many eminent lawyers as to their understanding of the meaning of that Act. I always felt that the Government had left themselves a loophole to deal with 2261 immigrants who had come into this country illegally.
However, this gentleman produced a statement emanating from the Home Office. I cannot remember whether he told me that his friend had obtained it from the police, or whether he had been to the Home Office and obtained it direct, but there is no question at all that it came from the Home Office. It said so on the face of it, and I cannot imagine that he would have had it forged for the purpose of coming and discussing the matter with me. According to that statement, the Home Office made it quite clear that the condition of people in that gentleman's position would not be interfered with. I read that statement through very carefully. I was a little surprised that the Home Office should have taken that attitude and so I read it through more than once.
I told that gentleman that I should not myself, as a lawyer, have taken that view of the Act, but if the Home Office had committed itself in that way I thought that his friend could take it that he was safe. There must be many of these people in this country. How many, we do not know: different estimates have been given. Surely, in those circumstances the Government are estopped—as lawyers say—from taking the line which they are now taking on the basis of what is, on consideration, the correct legal interpretation of the 1971 Act. It seems to me that when people have been put into this state by the Government of this country, in effect, it is only honourable for the Government to agree to the passing of legislation which will safeguard their position.
§ 3.14 p.m.
§ BARONESS WHITE
My Lords, my noble friend, Lord Chorley, who has just intervened in our deliberations, has put his finger on what is concerning us all. That is the question of honour and the question of whether there has been a breach of trust or faith. Our contention is that there has been such a breach of trust and faith, because, in spite of the references which have been made to debates both here and in another place, as one who was much concerned with the passage of the 1971 Act through this House, I do not believe that Parliament 2262 realised the effect of the legislation which was being passed.
I do not believe that had Members of either House realised that persons who were assured by the police—or maybe in some more formal communication by the Home Office; I would not know—that although they had entered this country illegally the period of time had elapsed during which they could be dealt with as illegal immigrants and that they were therefore immune, could subsequently be arrested and imprisoned—whether they are to be deported is another problem—there is no doubt that we should not have passed such legislation without discussion.
It was never really discussed in either House—I know that one can bandy quotations—that there should be this retroactive effect of the legislation as passed. There was reference in another place, though not in this House, to the possibility of an amnesty, but they were never gone into in any detail at all. I have looked up all the references which were given by the Home Secretary earlier in the week. The matter was never discussed in the context of persons who not only believed that they had immunity but had been told officially that they had immunity and whose status would be changed. That was not discussed in either House.
The references to an amnesty, which were brought in during the Committee stage, in particular by Mr. Deedes, I think, were never gone into in any detail. There was never any indication from the Government that these people would be caught later on through the effect of what was being done. A number of reassuring statements were made, in particular by Mr. Maudling. Again, I do not want to bandy quotations as to whether the saving words were included about their being here for settlement, or ordinarily resident, and so on. I fully recognise that some assurances were given which were plainly intended to cover only those who were here with full legality. I do not deny that for one minute.
The noble Lord, Lord Wade, has now cleared the position for all of us, and he also accepts what is my understanding, certainly, that the effect of his Amendment and the Amendment which was then substituted by the Government 2263 was that it applied to those who were here in the full legal sense.
§ LORD WINDLESHAM
My Lords, I am grateful to the noble Lord for clearing up the impression that may have been given in a Press account.
§ BARONESS WHITE
My Lords, I think that we are now all straight on that. I was a little concerned about what the noble Lord, Lord Windlesham, originally said, because I felt that on that basis he was right and that perhaps the noble Lord, Lord Wade, was in error. I repeat, however, that assurances were given in terms which would have brought confidence, not only to the illegal immigrants who assumed that they had immunity, but also, as the right reverend Prelate said, to those who were advising the immigrant organisations.
May I quote, for example, from the words of Mr. Maudling on June 16 on Report in another place, when he was discussing a group of Amendments and said:The Amendments provide that a person is not to be treated as ordinarily resident in the United Kingdom while he is here in breach of the immigration laws.He made that quite clear. Then he went on:In other words, if he is here in breach, he cannot claim that period as residence for the purpose of acquiring a right.He said nothing at all about his liability to deportation, or anything of that sort. He then went on:There is a special exception which arises under Clause 7 relating to Amendment 37 which is designed to safeguard the position of those who are already here to ensure that we are not taking away from anybody already here a right which they possess. People already here can count time they spend here over-staying their leave towards ordinary residence. We shall continue that illogical arrangement because of the undertaking I have given that we do not intend to take away a right which such people possess.My Lords, I suggest that when people read statements of that kind by a Home Secretary who admits that the Govern 2264 ment are quite prepared to condone overstaying one's leave and to allow that period to count towards residence—and the Home Secretary himself said that it was illogical—it would not be unreasonable for them to suppose that the Government would equally be prepared to acecpt that people who were immune, because they had been here long enough after entering illegally, would also continue to enjoy that particular status, which was at that moment legal.
There is this illogicality about the attitude in these two situations, and there is this imprecision about the various undertakings that were given—for example, the undertaking, as Mr. Maudling said, that we do not intend to take away a right which people possess. The right of immunity is surely a right which people possessed at the time the legislation was going through. Therefore had the Government been fully cognisant that they were altering retroactively the status that people already possessed (this again is the gravamen of our contention against the Government) it was their duty, as Ministers, to explain that there was this retroactive element in the legislation which they were putting before Parliament.
I felt sad when the noble Lord, Lord Windlesham, for whom I have the greatest respect, seemed towards the end of his speech to be riding off on an excuse: that this was not very important; this did not seem to be contentious; there were other matters in the Bill which were contentious, but nobody seemed to be bothering about this. My Lords, we were not bothering about it, because we did not know what we were doing. We did not understand that this was to be retroactive. We assumed, not unreasonably, that people who had acquired an immunity would retain that immunity.
There were other illegal immigrants who had not acquired the immunity because they had not been here long enough. There might have been some argument as to whether it should have been possible to acquire it only up to the date of the Royal Assent, or up to the time when the Act came into force. We could have argued about that; but it was never put to us. There was never any discussion about it. Therefore I was sad that the noble Lord Windlesham should have used, in the concluding part 2265 of his speech, an argument which I thought was entirely unworthy of him. Had he really put this to us, he knows perfectly well that we should at the very least have queried it. We might or might not have been convinced.
I fully recognise that this difficulty has arisen because of the gradual change over the past decade in the attitude of successive Governments, and of the majority of people in this country, towards immigration. It might well be contended—and the noble Lord, Lord Foot, in a most effective speech, if I may be permitted to say so, put his finger on this point—that there was a certain foolishness perhaps in the first position where it was accepted that one had to be only 24 hours in this country before obtaining a certain immunity. Then, in the 1968 legislation, things were so ordered that the period became six months. Now, under the present legislation, it appears that for people who come in in the future it will be three years. I should be glad if the noble Viscount, Lord Colville, would explain precisely what the future position is, although at the moment we are concerned only with those who were here before the present legislation.
Granting that this was a foolish arrangement—that, if one could get in here illegally, after 24 hours one was safe; or, after 1968, after six months one was safe—surely we are all responsible for that situation. It was we who created it, not the immigrants. Therefore we have the moral responsibility for dealing with the situation which we ourselves created. It was an unsatisfactory situation, a foolish situation from the point of view of public policy; but, I repeat, we were responsible for it. Why should they pay the penalty for our lack of statesmanship in these matters? This is why we have no right to victimise people, because we as legislators produced an unsatisfactory state of affairs. Why should they pay the penalty for our method of dealing with things—a method which we have subsequently decided is not satisfactory and are now changing?
None of us, from any quarter of the House, has suggested that we are complaining about provisions for the future or for any period after the implementation of the 1971 Act. We are not doing so because we all recognise, or should recog 2266 nise, that the trade in illegal immigrants is one of the most wicked scandals experienced in this country. I had the greatest sympathy with the noble Lord, Lord Gridley, when he referred to the rogues and sharks who batten on these people. One of the foolishnesses of the 1968 Act, I think, in retrospect, was that it made it possible for people, no doubt at vast profit to themselves, to bring in other immigrants, to keep them hidden for six months and then to say, "Now you are going to be all right." We do not want to encourage that sort of thing, and that is why I am not in the least complaining about the present state of legislation. It is right that one should remove that kind of temptation from those who organise this hideously cruel trade in human beings—because that is what it really is.
We have no quarrel with the Government about that. What worries us is what the noble Lord, Lord Foot, called the "Pandora's box of retrospection", and the fact that we were never taken into the Government's confidence about this. Therefore not only is there a breach of trust between the immigrant community and the Government or the immigrant community and the police, which is very important, but also, as the right reverend Prelate has said, and as other speakers, such as the noble Baroness, Lady Seear, have said, who are concerned with community relations, there is a breach of faith on our part because, in good faith, we have given people reassurance which has now proved to be unfounded. This cannot be good for race relations and it is this element which has so deeply upset Sir Geoffrey Wilson, Mark Bonham-Carter and their various colleagues.
They feel that they have been put in a false position; that the false position was due to dereliction on the part of the Government in not explaining what they were doing; that this is very damaging indeed to race relations, and that therefore it is for us, as a Legislature which has failed in this matter, to take such steps as seem to be open to us to remedy it for this limited group of persons concerned; namely, those who came in between the passing of the 1968 Act and the coming into force of the 1971 Act. The Bill does not affect the future; we are not encouraging future illegal immigrants, or 2267 anything of that kind. If we were, it would be quite a different picture. It is concerned strictly and exclusively with this small group of persons.
Therefore it appears to me that we have been responsible, as I believe we all have, possibly by errors of omission rather than errors of cornmission—and I say. Peccavi! as well as anyone else, because I myself had some share of responsibility. Perhaps we on the Opposition Benches were not as much responsible as the Government, because it was their business; but we might have been more on the alert, and I am perfectly willing to accept any proper degree of responsibility which is corporately laid upon all of us. Having done this, and having failed to handle this matter properly, I believe now that the proper thing to do, in all the circumstances, is to support the Bill before your Lordships' House.
§ 3.28 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, there has been a substantial number of speeches this afternoon, and that of the noble Baroness, Lady White, is one, dealing really with the conduct of the Bill in the past. There has been quarrying into the OFFICIAL REPORT. I hope I may be forgiven if I rely on the speech already made by my noble friend, Lord Windlesham, on that aspect, because if I attempt to go into it again as well as to answer, as it were, the current situation, your Lordships would emulate what happened last Friday and we should be here at five o'clock again. I rather doubt whether that would be desirable.
I should just like to say one thing on this subject and that is on the point raised by the noble Lord, Lord Chorley. I am frankly extremely surprised to hear that he saw a document of the sort that he described, although I in no way impugn what he has said. In view of the massive researches made in preparation for both this debate and debates in another place by all the people who have been looking up references in the OFFICIAL REPORT and elsewhere, there has been no mention from any of my advisers that any such document has ever existed. I wonder whether, by any chance, the person to whom the noble Lord was talking in the Lobby was one of those 2268 who came in before the 1968 Act and to whom, therefore, a perfectly legitimate assurance of the sort described could be given, unless he had previously been actually refused at a court and then slipped back clandestinely. That may be the explanation, but otherwise I cannot enlighten the noble Lord.
Perhaps I should rapidly answer the noble Baroness about the current situation as to time lengths. I shall not go into the question of overstayers, which is very complicated. The simple answer is that so far as illegal immigrants are concerned we have abandoned the connection between a timescale for prosecution and deportation powers to remove. The executive power can be exercised at any time without any time-limit and is not connected necessarily with a court appearance.
I should like to do three things: first, I should like to touch on the actual case which, as a result of the decision of this House in its judicial capacity, has given rise to all this discussion; secondly, I shall say why the Government believe that it would be wrong to support the Second Reading of the Bill; and, finally, I want to describe again how my right honourable friend and my colleagues in the Home Office intend to approach this difficult problem and use the powers that the law contains. In the process, I shall do my best to answer as many as possible of the questions that I have been asked.
The case that was heard here referred to three people: Mr. Azam, Mr. Khera and Mr. Sidhu. Mr. Azam came from Pakistan; he arrived clandestinely in January, 1970, in a small boat. Mr. Khera came from India; he arrived in much the same way in December, 1968. Mr. Sidhu was refused admission by an immigration officer in December, 1967. and again in January, 1968—before the 1968 Act came into force—but soon afterwards he again arrived clandestinely, and this time he got in.
I mention these three cases for one purpose. It arises from what the noble Lord, Lord Brockway, said about this being a human problem. I cannot repeat the two important speeches made in another place on Tuesday by my right honourable friend the Home Secretary and by my honourable friend the Under-Secretary, in winding up the debate, though 2269 I most earnestly urge those who are interested to read them, but I want to repeat and make it clear that we do understand the human side and that we have not overlooked the fact that these are people. We are not approaching it in a theoretical and intellectual manner which bears no relationship to the fact that there could be hardship. No one has done so.
It was the noble and learned Lord, Lord Wilberforce, himself, in his Opinion in this House, who said that, behind the bare facts of the three cases which 1 have just quoted lay human stories of hardship and struggle. We know very well that hardship has often been suffered by people in this situation. They have striven to come and establish themselves in this country, seeking a better life for themselves and their families. I must admit that, illegal immigrants or not, it would be much easier for everybody on our side simply to yield to what noble Lords opposite have so cogently and persuasively argued to-day and simply to abandon the retrospective or retroactive part of this legislation. What I have to do is to say why we do not choose to take that easy course.
§ LORD BROCKWAY
My Lords, the Minister has said that he will approach this in a human way. Will he answer the allegations which I have made, all of which have been in the hands of the Home Office for several days?
VISCOUNT COLVILLE OF CULROSS
If they have, I am sorry that they have not been in mine. But I shall come to the points made by the noble Lord, Lord Brockway. And if noble Lords will be patient, I shall try to come to all the points that noble Lords have made, except for those dealing with the history of this matter.
The noble Lord, Lord Avebury, in making the second speech on the Bill, made it clear at the beginning, I am delighted to say, that he was flatly and frankly not in favour of illegal immigration. I should think that nobody in this House departs from that stand; I imagine that we are all on common ground. What the noble Lord is no doubt seeking to do is simply to cancel out this one small part of the 1971 Act.
I do not wish to quibble or to take drafting points, and I shall not mention 2270 it again. But the enactment of the Bill as it stands would not have the effect that the noble Lord wants. Goodness only knows what effect it would have. It has been beyond the wit of my legal advisers to tell me, but it is pretty plain that it would not have the effect that he wants. That is the last time that I shall mention it, but it is just as well to have it on record.
VISCOUNT COLVILLE OF CULROSS
I am not even sure that it is. But we need not go into that. I thought it only fair to the House to make this perfectly plain. The noble Lord is clearly trying to declare an amnesty or seeking, as the noble Lord, Lord Foot, put it, a restoration of the lost immunity for those illegal immigrants who were here for at least six months before January of this year. It was made plain in another place and, think, recognised as a result of several speeches here to-day, that we are faced with a problem of illegal evasion of our immigration regulations on an increasingly serious scale. My right honourable friend made four major points, but this is in the forefront of our thinking. It is against that background that we feel that we simply cannot give way or produce anything less than a strict and—I am afraid it must be—rigid immigration law.
It is not only we who describe it in this way. I was interested to read what the noble and learned Lord, Lord Denning, said about cases of this sort when he was giving his judgment in the Court of Appeal on the case of these three people, which came to this House. He said:These men, if once here by leave, seek to bring their wives and children over. Two of them have already applied to do so. If the men are allowed to remain, it will be difficult to refuse the wives and children. If this were allowed, the number of immigrants would be increased so greatly that there would not be room for everybody.Again, if an amnesty were granted, it would be an encouragement to others to follow their example and that simply cannot be permitted. By sending hack illegal entrants, it will help to deter others from trying to do the same:In the circumstances, Parliament, as I read the Act, has decided that illegal entrants can be sent back; it has entrusted this decision to the Home Secretary and 2271 not to the courts, and has left it to his discretion.
Lord Denning went on to say how the Home Secretary would take account of all the circumstances and compassionate matters, to which I shall return later. He finished in this way:… the discretion to remove aliens has never been questioned in all our long history. Illegal entrants cannot be expected to be treated better than aliens. Even though they are Commonwealth citizens, they have come into this country in flagrant defiance of our laws. They cannot pray in aid those very laws to enable them to stay here.
§ BARONESS WHITE
My Lords, in spite of what the noble and learned Lord, Lord Denning, may have said, the fact was that they did have a different position from aliens up to the point of the passing of the 1971 Act, and that was taken from them. They were not on the same footing, although they may be in the future.
VISCOUNT COLVILLE OF CULROSS
My Lords, I am attempting to make this speech on the basis that the law is what this House, sitting judicially, has now said that it is. I am trying to defend the view of the Government that it should remain in that stage. The noble Baroness is perfectly right: they did have art immunity and it was changed. We say that it is right that it should have been changed and that it should stay changed, and that the law should remain. I know that many noble Lords do not agree with me. I take the noble Baroness's point, but I am dealing with it on the basis that I have described.
We have a certain dilemma among those who have argued for this Bill—among them the noble Lord. Lord Avebury. To some extent I detected a little of the same in the speech of the noble Baroness, Lady Seear. The noble Lord, Lord Avebury, implied that, first, if there was no amnesty and, secondly, if there were no special searches to be made by the police—and he is quite right, there will not be—this was a comparatively small problem. However, at the same time he argued, and so did many other noble Lords, that this was a massive race relations problem. On the other hand, the noble Lord, Lord Brockway, said that there were 10,000 2272 illegal immigrants, in which case it must be a very large problem.
It seems to me that there is an inconsistency about the way in which this has been argued which I can do nothing to resolve. As I have said before in this House, we genuinely do not know how many people there are. The race relations point, and particularly the way in which it was put by the noble Lord, Lord Foot, seems to me to be of great importance. It was referred to by a number of noble Lords, including the noble Baroness herself. I can say to her that I confirm that the Community Relations Commission is not under the day-to-day control of the Home Office. If she wants to say that to anybody she likes, she can, and if that would he helpful to her I am glad to be able to confirm that. The right reverend Prelate the Bishop of Southwark mentioned the matter, as did the noble Lords, Lord Ritchie-Calder and Lord Brockway.
I am genuinely sorry that those who have misunderstood entirely innocently what the law was—and they are in no way to blame for it—are in a difficult position. I appreciate how extremely awkward it must be and how difficult their lives must be. The noble Lord, Lord Wade, is one of those, as he mentioned this before, who has given assurances to people upon the basis of what he thought the law was. When all is said and done, even that sympathy cannot blind me to what was very fairly put by my honourable friend in the debate last Tuesday in another place about this race relations problem. The noble Lord, Lord Brockway, said that the immigrant community is very angry. I can understand that and also the point made by the noble Lord, Lord Foot, about it possibly being not so much their apprehension on this issue but that retrospective legislation should spread to people who are otherwise here at the moment perfectly legally in the full sense of that term.
I have also to remind the House—and this is something upon which my noble friend Lord Gridley relied very much—that community and race relations apply not only to the immigrant community but, let us face it, to the host community: the original inhabitants of this country, the British people, to whom we hope will be assimilated all who come from abroad. We are wholly dependent upon the good will of the host community and 2273 must consider their point of view. Reassurance for them as well as reassurances towards the immigrants must be made. We must make it plain to the host community—and this is the policy of this Government—that our control of immigration is firm and effective, and that we are doing our utmost to prevent those who come to Britain illegally from establishing themselves here and getting an unfair advantage over the people who have a legal right to come and are waiting their turn.
At the same time, we want to assure the immigrant community—if they do not believe assurances given by the Government, it is a very sad fact—that the security of those who are here in the proper, full sense of legality, who have gone through the processes of law and of the Immigration Acts, are absolutely safeguarded. There is nothing in the 1971 Act that affects them. There will be no harassment; they have nothing to fear. Indeed, we recognise that they are valued citizens. One of the other points made by my right honourable friend is that once here they must at once become first-class citizens. They do so, on broad principle, but also because we realise that they make an essential contribution to our national effort in many spheres of life and in many jobs, and we want them to go on serving on all sorts of public bodies, on Community Relations Councils and bodies of that sort, and we recognise the very great part that they can contribute and their usefulness to us. If they are here in accordance with the immigration laws, I hope they will believe that they have nothing to fear, as there is no threat whatever coming to those people from the Government—nothing but encouragement.
This spreads, as a number of noble Lords have said, further afield. One noble Lord said that there would be worry in, say, India and Pakistan about this. I can only refer those who think in this way, so far as the Governments of India and Pakistan are concerned, to the speech of my right honourable friend the Member for Ashford (Mr. William Deedes) last Tuesday in another place. He was recently in India and Pakistan, and says that one of the things that really worries the Indian and Pakistan Governments is the terrible trafficking in illegal immigrants and the dreadful crimes 2274 and battening upon the inhabitants of those countries which takes place as a result of their activities.
I am sure that the noble Lord, Lord Brockway, can explain what he meant about all those thousands of illegal immigrants into India and Pakistan and into East Africa. I do not believe they are illegal immigrants in the same terminology that we are talking about here. They may be United Kingdom passport holders—and if so, I will come on to them—but I do not believe they are illegal immigrants in the terms of having clandestinely got round the immigration laws of those countries. They simply have a different status and hold our passports.
§ LORD BROCKWAY
My Lords, surely their status is that of illegality. In many of those countries they are not allowed to work; they are Stateless. The only passport and citizenship rights they have are in this country.
VISCOUNT COLVILLE OF CULROSS
My Lords, I look upon United Kingdom passport holders in East Africa and in India and Pakistan as a totally different category of person from somebody who has knowingly and intentionally come into this country in flagrant breach of our immigration laws. I will stick to that differentiation; and I do not think that they come into the same category.
We believe that the best way to deal with this most human problem is not by way of an amnesty, or by amending the law, but by dealing with care and understanding with the individual case as it comes to light. I should like for a moment to go into the ways in which we would do this. I will look at the details of the 13 cases to which the noble Lord, Lord Brockway, referred. I am sorry that I cannot give him an answer now; I do not know the facts. But I will see that they are looked into, and he has told me that there are already papers and information at my Department that we can study.
The noble and learned Lord, Lord Gardiner, mentioned 29 families in North London. That is culled directly from the speech of the honourable Member for Tottenham, Mr. Norman Atkinson. So far as I know, it has absolutely nothing to do with the people we are talking 2275 about. I do not know where the honourable Member obtained these figures, and they would be a matter for my right honourable friend the Secretary of State for Social Affairs; but I can tell the House a certain amount about the 13 who have already gone and the 36 who are already here. It is interesting and important to know what their situation is, particularly in relation to their families.
We have been told by the noble Lord, Lord Brockway, that he knows of two who have wives, and possibly families, in this country. But that is not the ordinary case: these are the exceptions. Of the 49 people in question, the vast majority are men who are here at present, and have always been here, on their own. In almost all cases—though not quite all—they have wives and families still overseas, and that seems to be the typical make-up of the category of people we have come across so far who have fallen foul of this particular point of law. It is important to realise that although there may be two—or possibly three—with families here, the preponderance of them are men who are here on their own. Although they may have sought to bring in their wives and families, this is not now allowed under the 1971 Act.
I was glad to hear my noble friend Lord Gridley's view on the way we propose to handle these cases. I think it has already been made plain, both by myself in this House and by Ministers in another place, that where we come upon somebody who used to have this immunity until the 1971 Act came into force, as I have already told the noble Lord, Lord Brockway, these people will have their cases individually examined by a Minister in the Home Office. Moreover, I will promise to pass on the administrative points which the noble Lord, Lord Brockway, asked me to look at: such matters as the notice from the police, bail, reporting, and so on. I do not know exactly how this works out in terms of the law, but it seems to me a human and sensible suggestion which we certainly ought to explore, and I will see that it is looked into.
When we look at these individual cases I think it worth while reminding the House yet again—though part of my right honourable friend's speech on this matter was quoted—of the things that we 2276 shall take into account: the age and medical history of the individual; the length of time that he has been here; the strength of his connections, if any, with this country; his personal history; his character; his conduct; his employment record and his domestic circumstances. This last matter would be very relevant in the case of somebody whose wife has been allowed in and has joined him in this country, where they may have children. Any other compassionate circumstances whatever and any representations that may be made on their behalf are taken into consideration. I do not think we can say fairer than that. Each of these cases will be looked at upon that basis, and examined under that list of criteria. If that is not comprehensive it is not because I have especially left anything out; it is because we want to try to fit in as many compassionate circumstances as possible which might be relevant to the issue. It is only after consideration of all those that a direction for a removal would be given. I repeat that no such thing has happened in the case of any of the 36 men who are now in Pentonville.
However, I must repeat that, notwithstanding that compassionate approach, our basic principle must remain that where someone is found to be in this country illegally it must be normal practice to send him away. It would not be fair to others who have entered legally or are waiting to do so if we did not do that. It is our duty to them, to the communities among whom they live and to those waiting to come, to act in that way.
It may well be that the noble Lord, Lord Avebury is right. I do not doubt it for a moment when he says that there is tremendous support among the immigrant population in the country for the measure he is producing. But what about all those United Kingdom passport holders in India and in Pakistan and in East Africa who have been waiting in a queue, some of them for years, to get their entry permit, their certificate, their work permit or whatever it may have been at any stage to get into this country? I do not think that an overall pardon for those who had illegally jumped the queue—some of whom were probably not United Kingdom passport holders, anyway, in the first place —would arouse much sympathy among United Kingdom passport holders who 2277 are still waiting to come to this country, to whom the noble Lord, Lord Brockway so rightly stressed that we have a great obligation. I do not think one would find much sympathy from them if we were wholeheartedly to allow those who have illegally come into this country already to stay here without any further ado.
§ LORD AVEBURY
My Lords, is it really the noble Viscount's contention that to the extent that people are going to be deported under the 1971 Act, the Government would be prepared to increase the number of quota vouchers awarded to United Kingdom passport holders in East Africa, or to the 9,900 United Kingdom passport holders who are at present awaiting entry certificates in India? There has been no sign of the Government starting to reduce the length of this queue so far.
VISCOUNT COLVILLE OF CULROSS
My Lords, there is no numerical correlation between the two, but it is a very important attitude of mind. If the noble Lord underestimates the effect on those who have waited, if they see others slipping illegally past, then I think with respect, he is greatly mistaken.
§ LORD BYERS
My Lords, in view of past misunderstandings, may I ask for clarification on one point? When the noble Viscount says that the decision may be taken not to deport a person after investigation, is that a permanent clearance, or can the matter be raised again in any circumstances?
VISCOUNT COLVILLE OF CULROSS
I think that if somebody were not to be removed, it would inevitably follow that we should have to go through the proper process and allow him to settle here legally. I do not see how one can have a halfway house on this.
VISCOUNT COLVILLE OF CULROSS
I think so. Then he would become a properly settled person and he could send for his family and dependants and so on.
VISCOUNT COLVILLE OF CULROSS
Yes. The position is not now being reversed. It was reversed when the Immi 2278 gration Act 1971 was passed. It was reversed indeed, and I am now defending the reason we say it should remain reversed. Whether noble Lords knew what was being done, I do not know, I was not a member of the Government. I do not think I was here during any of the debates and I cannot contribute anything on that issue at all.
My Lords, I have been asked by the noble and learned Lord, Lord Gardiner, about passports, the police and the DHSS. I appreciate that these are important matters. I note what he has said. I could give him answers, but it would take some little time.
§ LORD GARDINER
My Lords, could the noble Viscount at least deal with the question of blackmail. I think it is very important that the public should be told whether, if they take a blackmail case to the police, the information will then be used to deport them.
VISCOUNT COLVILLE OF CULROSS
That was the third of the noble and learned Lord's important points, and I can deal with that one. Perhaps we can come back to the other points on another occasion. There cannot be a guarantee of immunity if people come forward because they are being blackmailed. I do not think it is possible for me to give any such guarantee. What I can say is this. If they come forward as a result of being blackmailed, and then somebody else is taken to court, and, one would hope, convicted, that would be another of the compassionate weights which would be put into the calculation. If somebody has had a miserable time at the hands of a blackmailer—or, indeed, possibly has enabled us to catch somebody who was blackmailing to any considerable extent, or perhaps at all—this would be a mark in favour of his staying. So it would go into the scales as one of the compassion arguments.
Further than that I cannot go, because I am afraid that to do so would be to detract from the principle that I have explained: that unless one has these com-passionate circumstances, the normal rule, I fear, must be that the person will go. I know that it is not a satisfactory situation. I have thought and thought about this, and so have the rest of us in the Home Office; but I cannot see any tenable alternative solution.
2279 I think we must now come to a conclusion on this matter. The noble Lord's Bill is not, I fear, one that the Government can support. I must equally brutally say that I believe he must realise that it does not have much chance of passing into law, having been introduced in this House at this stage of the Session. But one thing he has done is to allow a very full discussion. No doubt this was partly what he had in mind, that there should be a very full discussion of the various factors which have been very much in people's minds in this connection. The noble Lord, Lord Shepherd, asked me whether we would bear in mind and consider the whole subject in the light of the views expressed in the House to-day. And we will. I am afraid that I have had to make a fairly hard speech on this subject, because it is our policy to be fairly hard; but never would I go away from a debate in this House, particularly on matters which have been so tremendously passionately discussed by noble Lords, without making quite sure that my Department reads and understands the depth of feeling that exists and, indeed, some of the practical problems on the race relations side.
§ LORD SHEPHERD
My Lords, the House has always appreciated that the noble Viscount is always clear, and if he has to make a hard speech he makes it. But would he not think, or would his noble friend the Leader of the House not think, that when the Government—as it has been put to us—were removing an immunity and right, they might have had the courage that the noble Viscount has had to-day and stood up in your Lordships' House and declared it, not just in the interests of Parliament but in the interests of all those people who are affected?
Viscount COLVILLE OF CULROSS
My Lords, I have dealt with this point before. I have given—I am sure quite wrongly—my own personal view about this. I do not know what were the considerations at the time. My noble friend Lord Windlesham has dealt with it; I am dealing with the situation to-day. I hope that, despite its being a hard speech, I have put forward a line which is fair, which allows us to deal with these individual cases with firmness, tempered with humanity—the phrase which underlies the 2280 whole of my right honourable friend's thinking in this—and therefore that it will be understood, even by those passionate proponents of this measure, why the Government simply cannot support the Bill this afternoon.
§ 3.58 p.m.
§ LORD AVEBURY
My Lords, with the leave of the House I should like to say just two minutes' worth in reply to the noble Viscount, Lord Colville, and to the noble Lord, Lord Windlesham, who spoke earlier. So far as his speech is concerned, I would make two points. One was the discussion that he had with my noble friend Lord Byers about the legal right to stay, which he said was a mere playing with words. I do not think that it was a mere playing with words. With respect to the noble Lord, I prefer the opinion of Lord Justice Buckley who said in the Court of Appeal that they were legally entitled to be here and to remain here. That was the position under the 1968 Act. What we have been arguing about for several hours this afternoon is whether Parliament was justified in removing that legal right which Lord Justice Buckley maintained that these people possessed.
The noble Lord also said—here again I must dispute with him—he would challenge the fact that the 1971 Act was removing a constitutional right. I would refer him to the words of the noble and learned Lord, Lord Salmon, who said:It is because this subsection"—he was taking about Section 33(2)—affects the liberty of the subject by cutting down his basic constitutional rights, that I consider that it should be confined to the restricted meaning.The majority in the Court of Appeal and in your Lordships' House did not agree that it should be confined to the restricted meaning, but none of the noble and learned Lords or the Lords Justices in the Court of Appeal argued that this was not cutting down the basic constitutional rights of the people who possessed them under the 1968 Act. That is the point we have been trying to argue all afternoon. I should have thought that it had by now become fairly clear to the noble Lord, Lord Windlesham.
So far as the speech of the noble Viscount, Lord Colville, is concerned, the only thing I want to say about the draft 2281 ing is that if the Home Office were unable to comprehend the drafting of my Bill, then that is tit-for-tat, because I could not understand the wording of the 1971 Bill. I have been through it very carefully, and I have drafted my Bill in accordance with what was said by the Master of the Rolls, and by the noble and learned Lord, Lord Wilberforce, so that although I have not had the benefit of their advice directly I hope that some of the things which they have said in the courts have found their way into the wording of my Act. I should be delighted on another occasion, when we have passed the Second Reading, to explain it in detail to the noble and learned Viscount.
The noble Viscount said that illegal evasion of the immigration rules was taking place on a serious scale, and on an increasingly serious scale, and that that must be dealt with. There is no dispute between us on that. We have all said that as from January 1, 1973, we are quite prepared to accept that the penalties imposed under the 1971 Act should be imposed and that there should be no time limit on them. I personally do not agree with that, but I shall go along with your Lordships because I know that that is the majority view. So this increasing evasion which the noble and learned Viscount has referred to is already being dealt with by Parliament. The machinery has been set up for it. We have no need, therefore, to take into account that argument when coming to a decision this afternoon.
He said next that there was an incompatibility between the arguments which have been put forward on this side of the House. May I say in passing that there have been, I think, eleven speeches in favour of the Bill and one against, leaving out the speeches of Ministers, which I think is some indication of the strength of feeling which this subject arouses. The three arguments that the noble Viscount said were incompatible with each other were, first of all, my own, that a smal number of people will be removed, which I based on the undertaking given by the Home Secretary that no witch hunt would take place; secondly, the fact that the noble Lord, Lord Brockway estimated that there might be 10,000 illegal immigrants present in this country; and, thirdly, that race relations 2282 would be jeopardised however small the number who are detained or removed.
I do not see any incompatibility here at all. Supposing there are 10,000 people—though I do not think we really have any idea of the figure. The proportion of those who will be detected and thereupon detained by an immigration officer and perhaps removed on the directions of the Home Secretary might be very tiny, particularly if the police obey the injunction given to them by the Home Secretary. Nevertheless, I think whatever the number, it will jeopardise race relations. I cannot add much to the evidence which has already been submitted to your Lordships' House. If the Minister does not believe it after the tremendous weight of statement by bodies such as the Communities Relations Council, the British Council of Churches and so on—not all of them speaking exclusively for the immigrant community —then I do not think anything will convince him.
The noble and learned Lord said, quite rightly, that community relations are as much dependent on the good will of the host community as they are on the good will of immigrants. I made this point myself in my opening remarks, in spite of the fact that the noble Lord, Lord Gridley, appeared to have overlooked them. I agree, so why does he ignore, what the Churches are saying? It is not just the Church of England. It is, as the right reverend Prelate said, the various Churches of all denominations which are joined together in the British Council of Churches which have come to a unanimous view. I think the noble and learned Lord ought to pay a little more attention to their opinion. He said that he would deal with each case as it comes to light, and that no decision had yet been made on the 36 persons now in detention. He went through the list of matters that would be taken into account in deciding whether, on compassionate grounds, an individual should be granted indefinite leave to remain.
I do not think that this is good enough. The persons under threat in the immigrant community, and their friends and colleagues, do not trust the Home Office. Rightly or wrongly, they believe that the assurances of the Home Office can be 2283 relied on no longer. As my noble friend, Lord Foot, said in an extremely powerful speech, they think that what has happened is the thin end of the wedge. While the noble and learned Viscount is at the Home Office and the right honourable gentleman the Home Secretary is the present incumbent, we can take it that those assurances will be applied sympathetically. But we cannot be sure that in the future somebody will not become Home Secretary or Minister of State who will exercise a far more rigid discipline over the people who are detained and that, ultimately, not only will 100 per cent. of them be removed but that, having opened the Pandora's box, as my noble friend put it, there will be further elements of retrospection and that people who have been living here for many years will find themselves suddenly liable to a threat of removal. That is the point on which I think the noble and learned Viscount has failed to satisfy the House.
2284 I am not satisfied with mere discussion. The noble and learned Viscount said that perhaps I thought that I might have achieved my objective by having had it. As Mr. Gladstone once said, protest without action is mere froth. I hope that your Lordships will take action this afternoon, and by passing the Second Reading of the Bill will restore some confidence to the immigrant community.
On Question, Bill read 2ª, and committed to a Committee of the Whole House.