PASSPORTS: JUSTICE REPORT

HL Deb 06 May 1976 vol 370 cc697-720

6.46 p.m.

Lord ORR-EWING rose to ask Her Majesty's Government whether they have considered the recommendations contained in the report published in 1974 by Justice concerning the methods by which British Governments control the passports of individual British citizens. The noble Lord said: My Lords, I should like to give a little background to the Question which stands in my name on the Order Paper. My attention was drawn to the somewhat anomalous position of British passport holders by the actions taken in February by the police at London Airport in connection with mercenaries returning from Angola. At that time Her Majesty's Government recognised no Government for Angola. It is true that the Labour Party had supported the Marxist Popular Liberation Army but the Government did not recognise anybody, and in fact until the massive invasion by the Cubans and the arms provided by Russia, that particular liberation army occupied only a small area of land—a minority of the total country of Angola—round Luanda.

Britain proclaims itself a democracy and there is nothing unpatriotic in those who wish to fight for anti-Marxist forces or anti-Fascist forces. We thought there was nothing in any way wrong when 2,000 people, from various motives, went to fight with the Republicans in Spain against Fascism, and I think there is nothing wrong today.

It is not really the question of mercenaries with which I am concerned. It is that when they returned to this country, 58 passports were taken away. These figures may have varied a little in recent weeks, but they are the latest figures I can get from Parliamentary Answers. Twenty-nine of these passports have now been handed back and 29 are still held. The holders were kept in custody for two or three days without any charge being made, and of course the fact that half of them are still held probably reflects the fact that the holders may not wish to expose themselves to some of the undesirable publicity which they might receive as a result.

This House was somewhat concerned, as was voiced from all quarters, at the somewhat arbitrary manner of the infringement of civil liberties. Leading weekly and daily newspapers wrote on this subject. The Economist came out with an article on the 14th February; The Times on 20th February had a leading article under the title "Ne Exeat Regno Back Again". The Daily Telegraph of 12th March had a leading article on it, and then at Question Time we probed this further and the noble and learned Lord, Lord Gardiner, drew our attention to the report which Justice had published some two years previously, in 1974—Justice being an all-Party organisation. After what I hoped was a helpful interval, because we received a sympathetic reply from the Minister saying that he would look at this matter, we tabled this Unstarred Question to give us a chance of hearing from the Government whether they had been able to make any progress and what their view is after they have considered the matter.

I would draw attention in this long report—some of which I do not agree with, but some of which I do—to paragraph 45 which summarises the three principles. It says:

1. "(a)…in principle, executive actions should be reviewable by judicial processes;
2. (b) that certain kinds of decision affecting fundamental rights and interests of the citizen should not in principle lie within the domain of the executive at all, but should be determined by the ordinary courts (or, in special circumstances, tribunals) applying the ordinary law of the land;
3. (c) that there is a basic human right or civil liberty, namely, freedom of movement, with which the passport is intimately associated."

It is in this context that I am speaking tonight.

My Lords, the point really is that at present there are no very clear rules. On 7th April, when the noble Baroness Lady Flies, asked the question, "What were the criteria which allowed you to take a passport away?", she was told in a reply from the Foreign Office, "There is no definition of a criterion for deciding." I have looked up the guidelines which have existed, and it seems to me that they are now making it somewhat easier to seize a passport than it was when they were first framed. The first statement I can find was made in this House by Lord Gosford, who was then Under-Secretary of State at the Foreign Office. I refreshed my memory by looking at the original text which appeared at column 860 of Hansard on 16th June 1958. It says that persons whose passports may be taken away are, …persons whose activities are so notoriously undesirable or dangerous that Parliament would be expected to support the action of the Foreign Secretary in refusing them a passport or withdrawing a passport…".

This was reframed in a Question for Written Answer on 15th November 1974, and if we compare the versions carefully, the later one has been made less rigorous. It no longer says, "notoriously undesirable and dangerous", but says persons, whose past or proposed activities are so demonstrably undesirable that the grant or continued enjoyment of passport facilities would be contrary to the public interest".—(Official Report; 15/11/74, col. 265.) Your Lordships will notice two things: a softening of the wording in the first part; and, secondly, there is no reference to Parliament anywhere; that has gone, and that was in the original text.

My Lords, the other point which needs to be made is that there is no appeal procedure. I cannot help feeling that increasingly Parliament has been worried by the size and power of the Executive. In each field we are trying to set up some sort of procedure, preferably independent, which allows people who feel that they have been wronged to go to a tribunal to have their case considered. We have the Ombudsman, who now covers the Health Service, local government and Parliamentary activities, whereas initially he was looking into maladministration. People can take their complaints to him.

For a long time the police have been judge and jury in their own cases, and it was felt that there should be a tribunal with an independent element in it. The Press Council was set up for people who felt they had been wronged. Initially this was also an "in house", as it were, but it became a tribunal with an independent judge presiding—an independent element. I wonder—and this is very much the theme of the Justice report—whether we should not have criteria established and debated in Parliament and not behind closed doors. We all recognise that there will be instances. I wonder whether we should not have a tribunal set up to look into this matter. A tribunal has been set up to look into the specific questions as they concern Rhodesia. Possibly its terms of reference might be enlarged. The noble and learned Lord, Lord Gardiner, will probably give us his learned views on that.

I would make this point. From 1945 to 1968, apart from Rhodesia, and according to a Foreign Office statement in the letter to the noble Baroness, Lady Elles, only eight passports were impounded. In a few days in February, 58 passports were impounded. Therefore, we see here a grave threat to individual liberty, a growing threat by the power of the Executive, and something which I am sure in every part of the House we want to treat extremely seriously. I hope that when he comes to reply, the noble Lord the Minister will tell us something hopeful about the way in which he wants to move, and the sort of progress he is making in this direction.

6.56 p.m.

Lord GARDINER

My Lords, my interest in supporting this Unstarred Question is rather different, perhaps, from that of the noble Lord, Lord Orr-Ewing. If the rather lengthy article in the Observer last Sunday was right, Rhodesian interests are paying £200 to £300 a man to soldiers in Northern Ireland to get them to join Mr. Smith's army in Rhodesia at a pay of £250 a week. I cannot say that I have the same sympathy with mercenaries as has the noble Lord, Lord Orr-Ewing. Anybody who has nothing to do with Africa who goes there now to take part in a warlike operation, white against black, black against white, is misguided. As that army is Mr. Smith's army, that of an illegal régime, which no country in the world has recognised as being the lawful Government of Rhodesia, I think these soldiers would be well advised to take some legal advice on their position before they went out there.

My Lords, of course I am interested to support a Question asking the Government what action they are going to take, and what view they take, on the report of Justice, which has now been published for some two years. I think they have taken a lot of trouble with this report. They first deal with the varying functions of passports in constitutional history, where the word comes from and so on. They deal with passports and the right to leave the country; they refer to the Colvin case—he was a journalist and a well-known citizen of the United States who was refused leave to leave the country because he had not got his passport, and they say: In April 1973, the chairman of the present committee, on embarking at London Airport, was informed by an immigration officer that the latter would place no obstacle in his way should he seek to leave without a passport; but that he 'wouldn't get far'. The potentially critical role of the passport, as an evidentiary aid, to the citizen in his desire to leave the United Kingdom is clear. They deal with the writ ne exeat regno and with passports and the right of entry. They say: Confusion also attaches, with perhaps better reason, to the inter-relationship of passport-holding and the right of the citizen to enter the country. Again, it is to be stressed as a general point that the passport itself is a mere administrative device, providing evidence of status. But the situation has been vastly complicated by our post-imperial heritage reflected in an abstruse and, some feel, somewhat artificial, British nationality law. They then deal with the Commonwealth Immigrants Act 1962. They say: This Act attached entry controls to all Commonwealth citizens, Irish citizens and British protected persons, who were not either born in the United Kingdom, or in possession of United Kingdom passports…Thus, an individual's possession of a United Kingdom passport could critically affect his right of entry to the United Kingdom. Yet the decision, as we shall see, whether the applicant should have such a passport was and remains a matter of unreviewable executive discretion. They then deal with the position under the EEC, and remind us that William Joyce was hanged because he kept his passport. They go on: Despite the gap between appearance and reality explored in the preceding paragraphs, we have no doubt that the grant and withdrawal of passports is a process intimately related to a fundamental civil liberty, and human right:—that of the citizen to travel abroad, relying upon authoritative evidence of his identity and nationality. Later, they say: This administrative document, without which the citizen may find it in practice extremely difficult to leave the country, return to it, or enter or travel in a foreign country, is provided by and within the discretion of the Crown. No Statute governs it at all". Then they point out that it is no use complaining to the Parliamentary Commissioner, and that there is an advisory committee but that only applies to Rhodesians. Then they deal with the current United Kingdom practice concerning passports, and then with international perspectives, the Universal Declaration of Human Rights, the standards of the European Convention on Human Rights which provides that Everyone shall be free to leave any country, including his own". They examine where the European Communities Act 1972 places the United Kingdom in respect of the issue of passports: It seems to us arguable that Her Majesty's Government may now be under an international obligation to enact a statutory régime affording passport rights to beneficiaries of the Rome Treaty's freedom of movement Articles as promulgated by the Commission. Then they come to recommendations.

It is, of course, the rule of law aspect with which I personally am primarily concerned. I have said in the House before that, for reasons which I explained but will not explain again, I am of the opinion that for many years the power of the Executive and the bureaucracy has increased in this country at the expense of the power of Parliament and the people. One reason for that is, I think, that a long time ago we made a mistake. We had, of course, an absolute monarchy under the Stuarts. If a King gave a judgment against the Government, they were simply dismissed. The King in English Law could do no wrong, and the Royal Prerogative was extensive. In order to get rid of that we had a revolution, and one King was beheaded and another removed; we have had a constitutional monarchy, since William and Mary. When it came to the Prerogative, what I think we ought to have done was to pass laws defining the extent and nature of Executive discretion, instead of which we did not.

At an earlier stage this afternoon I drew attention to what I think is a flagrant injustice. A man who is denied bail, kept in prison for months, and then when his trial arrives is told, "Sorry, chum, we find that somebody else did it, and we offer no evidence", has no legal right to any kind of compensation at all. This is because in this case again the Home Secretary is standing there in his purple robe representing the Royal Pregrogative. He may graciously agree to an ex gratia payment, to make some payment the amount of which cannot be questioned; this is because it is a Prerogative. This is another old matter which simply comes from the Royal Prerogative. It should plainly be a matter of law.

The recommendations are, in effect, that in these cases the Executive decides the law which should provide the conditions that should apply, the conditions in which the Executive is or is not entitled to deny you a passport or withdraw your passport, and that decision, on ordinary legal principles, should be reviewable by the courts. I do not want to speak any longer, because all we are here to do is to ask the Government, after two years, what conclusion they have come to.

I do not know whether my noble friend is a regular reader of the New Law Journal—possibly not. If not, he may not have seen yesterday's issue of the New Law Journal. On the page which is written by Mr. Harper, a former editor, called The Week, I see the heading, Passports. He says this: Lord Goronwy-Roberts, Minister of State at the Foreign and Commonwealth Office—a Department of Government not renowned for precipitate action—was asked in the Lords what action the Government proposed to take in regard to the Justice report on Passports, entitled Going Abroad."— that was, of course, a reference to the Starred Question— He replied that the report was 'being studied', but that the Foreign Secretary 'had not yet had an opportunity to consider the proposals' in it. As he bad taken office only a few days previously, 'no one', Lord Hailsham observed, 'would wish to press him'. However, the Prime Minister ought to know something about the matter, since the report was published in 1974. It contains a number of proposals, but the merits of those relating to a proposed individual right to a passport and provision for judicial review of administrative action in regard to passports could be determined without difficulty and implemented without expenditure of public money. The delay in doing either is therefore indefensible. It has already lasted longer than the Justice committee responsible for it took to produce the entire report. Therefore, as the present Prime Minister was himself Foreign Secretary for so long and had two years in which to consider it, and I assume arrived at some decision, I look forward with interest to hearing what the answer to the Question is.

7.6 p.m.

Lord WIGODER

My Lords, the Question that is posed by the noble Lord, Lord Orr-Ewing, this evening is, of course, not being asked in a vacuum. It is being asked against the background of the impounding of the passports of the Angolan mercenaries and against the background of possible similar action in the near future should violence in South Africa, unhappily, escalate. It is, therefore, necessary that I should indicate, in suggesting, as I shall, that the Prerogative to impound passports in that way should not exist, that I am in no way supporting the activities of any mercenaries, past, present or future. If it is desired to control their activities, there is the Foreign Enlistment Act 1870. If that requires amendment or re-enactment, so be it. That will give the opportunity for proper Parliamentary debate on a problem which is clearly a very difficult one.

The present position is, of course, that there is an absolute Prerogative in the Crown as to the grant or withdrawal of a passport. It is a matter for administrative order. It is in substance not subject to any review by any court or any other body. I say "in substance". There are, I think, two minor limitations to that observation. There is the rather obscure Writ to which the noble Lord, Lord Orr-Ewing, has referred, ne exeat regno which I believe only applies to a person who is fleeing the country in order to escape some financial legal obligation. And there is, of course, the advisory committee that deals with passports to Rhodesia. But subject to that there is no tribunal, there is no appeal; there is not for any practical purpose even a right of appeal to the Ombudsman, because, as I understand it, the Parliamentary Commissioner has no power to investigate the merits of any refusal to grant or any withdrawal of a passport; he can only, at the most, investigate any suggestion of maladministration. That means there is in fact an absolute, and I would suggest intolerable, power in the Executive. l say that even though I want to make it perfectly clear that I am not suggesting that that is a power that has been abused. Indeed, when it reported in 1974 the Justice committee found that there had only been some 27 cases since the war in which passports had either not been granted or been withdrawn.

What concerns those of us who are deeply involved in issues of fundamental human rights is not whether the power that is available to the Government is being abused but whether it is capable of being abused in the future, and, if so, whether steps ought not to be taken to see that that abuse does not take place. When I talk about fundamental human rights, I mean, in relation to this matter, first, the right to travel freely. It is an odd reflection that when passports were first mooted some 600 years ago it was in order to encourage travel abroad and not in order that restrictions should be placed upon it. One is happy to see that already in a very large part of Western Europe it is very much easier to travel freely. Indeed, the noble Lord the Minister will remember that one of his predecessors, Mr. Ernest Bevin, remarked some years ago how much he looked forward to the day when passports would be a thing of the past.

On the right to travel freely, the right to leave the country without hindrance, I find it difficult to understand why, ever since 1920 when the aliens order was passed, there should be control over British subjects who wish to leave their country and, of course, the right to return freely to the country to which one is entitled to return. These human rights are rights which ought to be subject to law and not subject to the arbitrary whim of the Executive.

It is a particularly appropriate moment for the noble Lord, Lord Orr-Ewing, to raise this issue, because the whole question of our citizenship laws, which are really in a chaotic state, is being reviewed at this time. It might be appropriate at the same time, therefore, to review the whole question of the grant and withdrawal of passports. I hope that the noble Lord the Minister will be able to indicate that he will look at the Justice report with a view to considering whether it might be possible to adopt its main recommendation; simply, that there should be a short Act of Parliament which would establish that the individual citizen has a legal right to a passport, and has an unqualified right to such a passport. The Act might perhaps also clear up various ambiguities and make it clear that a passport is now simply a document of identity, a document of nationality and a document which indicates to which country the bearer should be returned if a foreign country finds it proper to take such action. It is perhaps time to sweep away some of the rather meaningless mumbo-jumbo which occupies the first few pages of our passports.

I hope that the Minister will indicate that it is possible to envisage bringing the whole system of the grant and withdrawal of passports within judicial supervision. I know that it can be said that where there are political considerations involved it is not always a justiciable matter for the courts to intervene; but the noble Lord will be aware that on a similar issue, where people are being deported because it is felt that their presence is politically undesirable, a quasi-judicial system has been set up, and it is possible for appeals to be heard against decisions made on that ground. The issue here on which passports may be withdrawn is, in many ways, similar, and I would venture to support the noble Lord, Lord Orr-Ewing, in asking this Question, and in hoping that we can receive an encouraging reply from the Minister to the effect that the whole system will be brought under some form of judicial review.

7.13 p.m.

Baroness ELLES

My Lords, the noble Lord, Lord Orr-Ewing, has drawn the attention of your Lordships to a matter of considerable constitutional significance under this innocuous looking title of a report called Going Abroad. The report on passports makes certain recommendations, which I shall not go into in detail. Like other noble Lords I shall avoid the questions of immigration, nationality, and citizenship, with which of course passports are also intimately connected. In passing, if the noble Lord the Minister is able to tell us when we might see the Review on Nationality, it would be of interest to noble Lords. Many of us are waiting to know what kind of decisions and thinking the Minister has. Perhaps it is the Minister for the Home Office who is producing this report. However, we should like to know more about it.

It is generally assumed by the innocent citizen, being a citizen of the United Kingdom and Colonies, who is about to go abroad, that he, or she, will need a passport to leave the country, obtain one on demand by paying the appropriate fee, treasure it as his or her own, and that, as it appears to say, this precious document will entitle him, or her, to protection from the Government while abroad. Of course, as we know, none of these assumptions is true. It is not essential for a citizen to show a passport on leaving the country, since its purpose for control of exit, as I understand it, is one of identification, and if identity can be proved satisfactorily to the passport control it is not essential to produce a passport. It does not guarantee protection by the Government, since the diplomatic protection abroad of the citizen lies within the right of the State to afford that protection, and it is not a necessity, or a duty, owed by the State to the citizen, nor does the citizen have a right to demand that protection. Thirdly, as we know, passports may be withdrawn by the prerogative of the State without giving any grounds for such withdrawal. Nor does a citizen, as has been repeated by other noble Lords, have any right of redress or access to a tribunal for the restitution of the passport.

I should like to refer to some of the human rights documents which have been supported by past United Kingdom Governments, and first, of course, the Universal Declaration on Human Rights, which was adopted in 1948 by the United Kingdom, among other Member States, at the United Nations. The contents of Article 13 (2) have been rightly referred to. This right may be subject to limitations and restrictions. In fact, all the rights and freedoms enumerated in the Universal Declaration are subject to certain limitations and restrictions contained in Article 29(2), the restrictive clause. But it states categorically that these limits must be authorised by law and for certain specific reasons. Referring to the reasons enumerated in Miss Joan Lestor's reply in the House of Commons, to which my noble friend referred, reference is made to public interest. Certainly public interest is not one of the grounds enumerated in Article 29(2); they are specifically matters of public health, public morals, and the general welfare of the community. These, of course, have not at all the same legal significance, or governmental interpretation, as public interest.

Other countries have constitutions which guarantee fundamental freedoms and human rights, and provide methods of enforcement for the individual citizen. In fact, it will be recalled that in the United States there was a case involving a travel ban on Cuba, and it was held that in order to be consistent with the due process, governmental restrictions on freedom of movement must bear a direct relation to the achievement of a compelling Government objective. This must be a basis on which governmental action must be founded. Secondly, since 1948, major human rights instruments have come into force.

Very recently—and I have not heard it mentioned yet in this House, but it is a great event in the field of human rights law—in March of this year, the International Covenant on Civil and Political Rights came into force. There is an article in that Covenant which refers to the right of everyone to leave any country. The United Kingdom signed that Covenant in 1966, but has not yet ratified it. The same right to leave any country is contained in the fourth Protocol of the European Convention on Human Rights. Again, the United Kingdom has not seen fit to ratify that particular Protocol. Possibly the Minister might be in a position to tell us whether the Government have any intention of ratifying these instruments. I know that it is not strictly relevant to the passport issue, but I think we should be reminded that the International Covenant has provision for setting up a human rights committee of the 18 members of the first signatories and ratifiers of the Covenant, and it now means that the United Kingdom will not have a chance of nominating a member to that important committee. On the other hand, the Byelo Soviet Socialist Republic and the Union of Soviet Socialist Republics are among those who will be able to nominate members for this committee. This is perhaps a matter the Government might look at very seriously.

Both these instruments contain provision for the limitation by a State of such rights as are granted, but again in both these instruments they must be determined by law, and Article 12(4) in the Covenant states that no one shall be arbitrarily deprived of the right to enter his own country. The arbitrary withdrawal of passports may well have on the citizen the effect precisely of not being able to return to his country because he will have been deprived of this necessary document which may be required to re-enter his own country.

Thirdly, there is an obligation under Articles 48 to 66 of the Treaty of Rome in relation to the freedom of movement, the freedom of establishment and the freedom to provide services throughout the Member States of the Community. As we do not have identity cards in this country, may I ask what other documents for identification purposes a United Kingdom citizen can have if he wishes to go into one or other of the Community countries? I do not wish to detain your Lordships for long, but I feel that it is relevant to read just that part of the Council Directive which is absolutely relevant to this matter. It is Directive 64/220/EEC of 25th February 1964, which provides: Member States shall, acting in accordance with their laws, issue to their nationals referred to in Article 1"— that means nationals in the EEC— and renew, an identity card or passport which shall state in particular its holder's nationality "— now comes the important part— and shall enable him or her to leave and re-enter the country freely. That is a Council Directive which may, or may not of course, be directly applicable in this country; I am not in a position to say whether it is directly applicable. But if it is, it would of course ensure to a citizen of the United Kingdom that he could not have his passport withdrawn if he wished to travel within the European Community countries. At least, that is how I would read that section. It goes on to say—and this is relevant to the United Kingdom: Where a passport is the only document with which the holder may lawfully leave the country, its period of validity shall be no less than five years. That is an administrative point. Nevertheless, the fact is that within European Community law, which of course recognises fundamental freedoms and human rights, it is stated that any citizen should be able to leave and re-enter his or her own country freely.

I wish to raise a point which was contained in the Justice report. It was not gone into very deeply but it is, again, very relevant to the question of passports. I have given notice to the Minister of my intention to raise this issue. There have been complaints from women who have divorced their husbands or have been deserted but who have fully maintained their children, often at great personal sacrifice yet cannot take their children out of the country for a holiday without the consent of the former husband. I should be grateful if the Minister could confirm that it is a term of the court order as to whether the parent of the children is able to remove those children without the consent of the other side or former spouse, and that it does not lie within the competence of the Passport Office, at its own discretion, to grant or withhold passports. Many women who have written have complained or have felt that it was the Passport Office which was holding up this possibility of taking their children out of the country, but I understand that it is one of the terms contained within the court order.

If the Minister confirms that this is so perhaps the Law Commission might make some proposals, if it has not already done so, after consulting the Family Division of the Queen's Bench as to how this matter might be more satisfactorily dealt with. Obviously, if this is the way in which court orders are worded, there might be some way of obviating this difficult situation for many deserted or divorced people who have care, responsibility and maintenance of their children but who cannot take them abroad, even for a short time.

What we are really asking the Government, on the basis of this report and the Question raised by my noble friend, is this: first, as there is no statutory obligation to provide a passport nor a statutory right to have a passport, will they say on what basis they consider that there is a prerogative? It seems to go back into history, but the historical origin of the prerogative appears to remain unclear and, as the noble Lord, Lord Wigoder, pointed out that it was only by the Aliens Order Act 1920 that the significance of passports was introduced from the point of view of coming back into the country, I think that the Government would have to justify using a prerogative when there seems to be no modern evidence or justification for its use.

Secondly, if the Government would be prepared to spell out by what criteria they withhold or withdraw passports, may I ask why and on what basis there has been a change, and a very sharp distinction, in the grounds which were spelled out in 1958, as was pointed out by Lord Orr-Ewing and the reply given by Miss Joan Lestor on 15th November 1974 in Written Answers. She specifically referred not only to past but to proposed activities that were so demonstrably undesirable. On what grounds can a Government decide what action somebody will take when they leave a country? It must be the first time that any either executive power or judicial body should have taken any executive action on the prospective or even contemplated acts of a citizen of this country.

We are all aware that every Government in a democratic system must be concerned with achieving a fair balance between the recognition of the citizen's rights and imposing certain limitations on those rights which would be for the overwhelming benefit and security of the citizens of our country. However, these questions still remain. It may well be that administrative action is required by Governments to impose a limitation or a restriction on the rights of a citizen or citizens, but what we on this side of the House feel—I am sure that this feeling is shared by other noble Lords—is that what is not admissible in any system of countries and democratic Governments which recognise human rights and fundamental freedoms of the invidual, is that executive power may be exercised arbitrarily; that governmental action may be affecting a basic freedom with no reason stated and with the right of redress by the citizen through a court or tribunal or other recognised judicial body being denied to that citizen.

My Lords, I conclude with the happy thought that the last proposal which was made in this House as to how a discretionary executive power could be cured would be by a change of Government, and that apparently is the only way as it exists today.

7.28 p.m.

Lord MONSON

My Lords, once again there has been a clerical error and I must apologise to noble Lords who came into the Chamber to listen to the noble Lord, Lord Molson, rather than to me. I wish to cencentrate on one specific but very important aspect of this whole question of passports, so ably covered by the Justice report and to which the noble Lord, Lord Orr-Ewing, has so commendably drawn our attention. The aspect in question is the essential right of the inhabitants of a free country to leave that country at any time without hindrance and with only a very few tightly circumscribed exceptions. Paragraph 22 of the Justice report, which was quoted by the noble and learned Lord. Lord Gardiner, put it rather better than I could by referring to …a fundamental civil liberty and human right, that of the citizen to travel abroad. Prior to the exceptional circumstances of the current IRA bombing campaign, during which naturally most of us are prepared to accept certain restrictions on our freedom of activity, I, and I suspect many others, very much resented having to show my passport when leaving the country, because the implication was that being allowed to quit these shores was a privilege rather than a right.

However, that is an emotional reaction and, on a practical plane, I can apprecate that this practice makes it easier to prevent four categories of person leaving that, in my opinion, even a free democracy is morally entitled to prevent so doing. The categories in question are first, those wanted by the police in connection with a criminal offence; second, persons remanded on bail, except in connection with the most trivial offences; third, persons attempting to remove wards of court from the jurisdiction of the British courts; and, fourth, the wards of court themselves. However, in the last connection, I am bound to say that I wonder whether it is still right in 1976 to try to prevent wards of court from 14 years of age upwards from going abroad of their own free will. I was interested to see that, in a slightly different area, paragraph 58 of the report urges that children aged between 16 and 18 should he able to obtain passports more easily than at present. However, that is something of a side issue and we have not time to go into that tonight.

By the nature of things, the policy of making intending travellers show their passports before leaving can only work successfully as far as the latter three categories are concerned, because people in the first category—those wanted by the police—are clearly likely to have retained their passports and, unless the crime for which they are sought is very serious, it is highly unlikely that the immigration officer will carry the name of the wanted man in his head. Our immigration officers do not have a lengthy blacklist at their elbow, as will have been observed by any traveller. Furthermore, the policy falls down completely so far as travel to the Republic of Ireland is concerned, because again apart from the present, one hopes, exceptional circumstances of the IRA bombing campaign, it is possible to escape British jurisdiction completely simply by heading westward.

However, one must concede that asking people in the first instance to produce their passports to prove their identity is administratively convenient and time-saving and, hence, justifiable. It is when they do not have passports that the trouble arises. In my belief, provided a person can produce some means of identification, such as an international driving licence.

a slightly out-of-date passport or something similar, by which it can be checked that he is not on the wanted list, he should be allowed to leave the country without further ado, provided, also, that he is made aware that he risks the possibility of being turned back at Boulogne, Ostend, Rome airport or wherever his destination may be, and provided it is made clear that he will not be entitled to consular protection and assistance, and that he may have a few problems in establishing his identity when he wishes to re-enter this country. In theory, that is what is meant to happen at the moment, as the noble Baroness, Lady Elles, pointed out. However, the experience of Mr. Ian Colvin of the Daily Mail a few years ago which is cited in paragraph 7 of the report gives cause for very considerable alarm.

We do not have a Palmerston in the Foreign Office at the moment, and we have not had one for some time. Furthermore, we read only the other day of the axing of consulates all over Europe as part of an economy drive. None the less, and despite the consequently tenuous nature of the protection afforded today, the Government retain certain obligations towards British passport holders on whose behalf foreigners are requested and even required, in the name of Her Majesty, to allow the bearer to pass freely without let or hindrance, and to afford him or her such assistance and protection as may be necessary.

That being so, I have to concede that there may be—though I do not say that there is—something in the argument that a United Kingdom citizen whose presence abroad is more likely than not to cause difficulties, embarrassment and expense for this country should not be granted the facilities and the implied protection which a passport confers. However, whether or not one agrees with that—and I am not sure that I do, and I am certain that the authors of the report do not—we must surely be united in this House in believing that under no circumstances should this country be ringed by a metaphorical "British Wall". Those who find themselves without a passport, for whatever reason and leaving aside the four categories which I mentioned earlier, should surely be entitled without qualification to leave the United Kingdom at their own risk. I hope that the noble Lord who is to reply for the Government will be able to assure the House that there is absolutely no legislative or administrative barrier to their doing so.

7.35 p.m.

Lord GORONWY-ROBERTS

My Lords, I have listened with deep interest to this debate and with respect to the noble Lord who opened it. He was the noble Lord who drew our attention to the Justice report which my noble friend Lord Gardiner complained that the Foreign Office had been rather dilatory in considering. My own experience of those members of my own family who share with my noble friend activity in the legal profession, seems to suggest that the profession of which my noble friend is such a distinguished ornament is not that much more precipitate in action and impatient of delay than is the British Foreign Office. However, this is a useful debate. I must say at once that the matters which have been raised are being studied by Her Majesty's Government. Indeed, questions relating to passports are constantly under consideration, but I am able to say that we are looking specifically at the points recently raised and are studying them in relation to the Justice report, which is the emanation of a very distinguished legal group, though it is not an official publication. The Government are also examining that very carefully.

I am not in any way able to indicate today what Her Majesty's Government have decided about these very important questions, but I hope that the noble and learned Lord, Lord Gardiner, may agree to wait just a little longer before the Government indicate what they propose to do to change the system which has served us very well and has served the people of this country very fairly, as the Justice report goes out of its way to make clear.

It is because successive Governments have been sensibly aware of the possibility that executive action stemming from the Royal Prerogative in this case could possibly be abused that they have announced in Parliament from time to time the categories of person to whom passport facilities may be refused. The last occasion when such an announcement was made was, as we have heard, on 15th November by the then Parliamentary Under-Secretary for Foreign and Commonwealth Affairs. The noble Lord and the noble Baroness compared the phrasing of the previous statement of grounds of refusal made by Lord Gosford in this House in 1958 with that made by Miss Lestor in November 1974. I must confess that I do not see any great difference of intensity.

It is a matter of opinion, but I take issue with a suggestion that, in the first statement, Parliament was enabled to intervene more than it could today. The power of Parliament or of any Member of Parliament—and that means any Member of either House—to intervene, change or check executive action in this particular, as in any other, still remains. It is not possible to adduce to the statement made by Lord Gosford then a power of Parliament which has somehow disappeared today. It is for Members of Parliament to take these matters up, as the noble Lord did the other day by putting certain very pointed questions to me about mercenaries, either in relation to a group or an individual. That power we retain as Members of Parliament.

The five categories in the statement made by Miss Lestor have been mentioned in turn by various speakers, but category C has been quoted most often. It reads: In very rare cases, a person, other than one in category E"— that is the category that relates to persons in Rhodesia— whose past or proposed activities are so demonstrably undesirable that the granting or continued enjoyment of passport facilities would be contrary to the public interest. The discretion to refuse passport facilities to persons deemed to be in category C is exercised on the personal decision of the Secretary of State for Foreign and Commonwealth Affairs. Apart from mercenaries, there have been only nine cases of refusal in this category since the 1939–45 war, and the report itself concedes that the present system is operating efficiently and in an enlightened manner. It says, in paragraph 46: It cannot be pretended that its present functioning gives rise to any major difficulties or to any serious abuse of power. Nevertheless, I recognise the concern of noble Lords—and here I address myself particularly to the balanced, well argued speech of the noble Lord, Lord Wigoder, and of the authors of the Justice report—that the enlightened operation of the present system depends upon the wisdom of the Secretary of State and his officials. As recommended in the report, the alternative could be a Statute conferring upon all citizens the legal right to a passport. Under a statutory system, provisions would presumably have to be made for refusals and withdrawals of passports in certain circumstances, and I imagine that these would likely correspond closely with existing categories for refusal. So we are left with the procedures whereby refusal or withdrawal are effected, and the important question of appeals. I take all these as being very important matters to which it is time we addressed our serious attention to see whether any changes can be made in the interests of our people and our country. All this is related not only to individual freedom, but perhaps in some cases to the larger issue of our own national survival and freedom. The noble Baroness in her speech put together the two points and said that we must relate these two considerations.

Interest in this matter has been aroused recently because of the decision of the Secretary of State to withdraw passports from mercenaries on their return from Angola. I join with other Members of your Lordships' House who spoke in the debate in saying that it would perhaps be inutilitous for us to dwell on this, particularly as the circumstances have solved this particular problem. I am not aware that anybody from that group is without his passport if he wants it back, and the proviso for a signed declaration—the one we copied from the previous example in 1961—has lapsed because the circumstances do not make that necessary.

The question regarding the mercenaries is being expertly studied by a Committee of Privy Councillors with the noble and learned Lord, Lord Diplock, as chairman. I was asked whether the report could be published fairly soon. I understand that we can expect it fairly soon and that it will include recommendations on the refusal of passport facilities which may be of general utility to us in our consideration of this question. I will not refer to the other categories mentioned in the statement by the Parliamentary Under-Secretary in November 1974: rather I shall pass on quickly to refer to one or two specific points raised in the debate.

The noble Baroness asked when will Her Majesty's Government ratify the International Covenant on Civil and Political Rights? The answer is that we hope to take a decision soon. Of course we have full sympathy with this and have been something of a peacemaker in regard to it. The second question posed by the noble Baroness was, if I understood it correctly: does not the EEC Directive 64/220 on freedom of movement between Community countries confer an obligation on Her Majesty's Government to issue passports? The answer to that is that Article 6 of the Directive confers an obligation to issue a passport or identity card to nationals wishing to travel within the EEC. But as I think the noble Baroness was on the way to reminding us (though I did not quite see that she got there) Article 8 of the same Directive states: Members shall not derogate from the provisions of this Directive, save on grounds of public policy, public security or public health. Those are very wide grounds indeed. So while in Article 6 the Community has extended this very liberal provision of movement within the Community it has, no doubt rightly, restricted it in quoting the needs of public policy, public security and public health.

The third point which the noble Baroness put to me was: when will the Government ratify the Fourth Protocol of the European Convention on Human Rights? I must say, frankly, that I do not see any immediate prospect of our being able to do this, and the reasons are quite clear. We exercise immigration control on several categories of United Kingdom passport holders; for instance, citizens of colonies. Therefore, while we do this, and we do it, I think, with the substantial support of the people and of Parliament, we do not see a way genuinely to ratify the Fourth Protocol. I suppose we could ratify this and then ignore it. There are instances of that being done, though not by this country. So the straight answer to the question of the noble Baroness is, "No", for the reasons I have given.

The noble Baroness raised an interesting and poignant question relating to the position of little children who are caught in family difficulties. Where there is separation or divorce, children are placed in the custody of one parent and the agreement of the other is needed for certain things to be done in regard to them. The noble Baroness is quite right; it depends on the court order and the terms of it. It is not for the passport officer to do more than offer advice as anybody would. There is not here any real difficulty arising from a suspicion of sex discrimination, come to that. Like me, the noble Baroness has heard people raise this point in terms of whether the female parent, but not the male parent, has to go through certain processes. Of course, this is not true. Either parent is subject to the same procedures. As to whether the court order could be set out more clearly so as to obviate these harrowing circumstances—and we are all aware of such instances—I could not say. I am always in favour of faith, hope and clarity, especially in the courts of our country; but it is a point worth making and worth conveying.

My Lords, I conclude by saying this. Although the present system has worked without injustice or oppression, the Government are considering carefully the arguments which have been put forward before today, and certainly those that have been put forward in this useful debate by noble Lords will also be considered carefully, so that we may see whether, in the light of all the considerations I have mentioned, any change in the present law or practice is desirable.