§ House again in Committee on Clause 3.
§ Lord Avebury moved Amendment No. 34:
Page 3, line 14, leave out subsections (2) to (9) and insert—
("(2) A person born outside the United Kingdom shall be entitled, on an application for registration as a British citizen, to be registered as such a citizen if either his father or his mother was a British citizen by descent at the time of his birth, and that parent had a father or mother who was a British citizen otherwise than by descent.").
§ The noble Lord said: I think it was the noble and learned Lord the Lord Advocate who said earlier on that it was inevitable in the case of any Bill dealing with nationality that it was complex and somewhat difficult to understand for the layman. In Clause 3 we have an extremely long and involved set of procedures which have to be complied with by persons seeking citizenship by registration when they are born overseas other than those who are Crown servants or persons in service designated by the Secretary of State, as we have just been discussing under Section 2.
§ Looking at the Bill, we have three whole pages of conditions which the person born outside the United Kingdom must satisfy if he is to be registered as a British citizen by descent. I am afraid that the noble and learned Lord the Lord Advocate is right in saying that many people will not understand these provisions; they will miss the boat in the sense that they will fail to register within the period specified; they will have an enormous amount of hard work in formulating the application, and they may still at the end of the day get it wrong.
§ What I am suggesting in the amendment in my name, on page 3, line 14, is that the whole of Clause 3 should be swept away except the discretionary provision at the beginning, which I think we shall always need. 1063 There are going to be the cases that it is impossible to take care of within any fixed set of rules whatsoever, and I therefore think it is quite right that the Secretary of State should have this discretionary power in subsection (1); but, after that, what I am suggesting to your Lordships is that citizenship should be transmitted only to the second generation born overseas. That is to say, a person will have to satisfy the Secretary of State that his father or his mother was a British citizen by descent, and that that parent had a parent who was born in the United Kingdom.
§ So the tests he will have to satisfy are extremely simple ones. He will presumably have birth certificates for his parents and his grandparents. There will not be the enormous complexity of seeing whether the employment in which his parents were engaged is relevant employment within the meaning of subsection (3) as we have it here, but anybody who is serving overseas will be entitled to transmit citizenship to the second generation simply on proof of his ancestry.
§ There are two possible objections that it seems to me one might make to this. One is that it will unduly widen the scope of people to whom citizenship is given under the Bill. I think the answer to that has already come out in the discussions that we had earlier. Everybody is agreed that we wish to try to make provision for British employees of European institutions; everybody is agreed that we need to make extra provision to ensure that academics serving at universities overseas are taken care of; and, lastly, there is the case of the missionaries, where on all sides people have been saying that if the missionaries have not been taken care of in the Bill the undertaking which was given by Mr. Tim Raison in another place and which had apparently been forgotten should be freshly examined.
§ The noble Lord is shaking his head to say, no, it had not been forgotten. Certainly it was not examined to the extent that a Minister was able to get up at the Dispatch Box and say with authority that ministers of religion and other servants of the Churches who went overseas, not as employees—because we know that they would be taken care of, as the noble Lord explained—but either as self-employed persons or as employed by the foreign missions or foreign churches to which they were sent, had been taken care of, and it did not seem at all clear that they had been under the Bill.
§ All I am suggesting is that from every quarter of the Committee there have been pleas to take care of additional categories of persons who are not employees, who are not working for British companies and who do not qualify under any of these extraordinarily complicated provisions of Clause 3. Therefore, if the Government honour those undertakings and the numbers of persons who qualify for citizenship is widened, what I am suggesting is that by extending the concession to the whole of the second generation born overseas there would not be a great widening of the numbers who fulfil the tests.
§ Of course, we are only talking about the people who want citizenship. Earlier on we were discussing the case of a British employee working for the United Nations. It was suggested—although I could not quite see the logic of this—that if the person was directly recruited by the United Nations and he went 1064 to New York and had children there it might easily be in their interests that they should grow up as American citizens. The Minister was saying, however, that if the person was seconded from the service of the Crown to work in the United Nations, in some manner his children would not have any advantage in growing up as American citizens. I do not understand why there should be this distinction. I merely am pointing out that nobody is obliged under the amendment that I am putting forward to take the citizenship if he does not want it. The second generation only has a right to register. If, in the circumstances that the Minister was thinking about, it suited the child more to be a citizen of the United States rather than retain links with this country then he would be entitled to do that.
§ There is another argument which I seek to advance now, and that is one of expense. We have not heard about that so far. It appears to me that a very large number of civil servants are going to have to be employed in examining the claims which will be submitted under Section 3(2) and a vast amount of paper work is going to have to be filled in to establish that the parents in question fulfil the terms of paragraphs (a) to (d) of subsection (2). This will not simply be affirmations by the parent, it will also require that the company by which he is employed submits evidence regarding the nature of the employment during the period in question and the length of that employment. In addition to the burden of work which is already far too great for the staff of the Home Office to cope with for any reasonable length of time there is suddenly going to be this enormous mass of applications being made.
§ I do not know whether the Minister, when he comes to answer this amendment, would care to say what provision is made in the Explanatory and Financial Memorandum for the additional staff that are going to be required in Lunar House or Adelaide House—wherever these people are going to be employed. What numbers of persons are going to be required to vet the applications under Section 3(2)? Where they are going to be physically housed is an interesting question because as I understand it there is not an enormous amount of room in the Home Office buildings where additional staff could be deployed. It is already the case that applications for citizenship are taking an enormous length of time to process.
§ As the Minister in another place, Mr. Timothy Raison, has explained to me, since the decisions of the courts over the past few years—particularly that of Zamir—when a person applies for registration or naturalisation as a citizen of the United Kingdom, inquiries have to be made into his bona fides as a person with the right of abode here. He may have been in the United Kingdom for six or seven years, but the person who vets his application for citizenship must first of all establish to his own satisfaction that the person gained the right of entry lawfully and that he did not for instance in terms of the Zambia judgment withhold information from an entry certificate officer which might have led to a different decision being given when he originally asked to come here from, say, Delhi or Manila.
§ The productivity of the people examining these matters has gone down disastrously. There are many 1065 more applications being submitted for citizenship than there used to be in the old days, but fewer of them are being processed per unit of staff. I cannot see how this additional work load is going to be covered by the department within its existing labour force. It is going to lead, unfortunately, to the very thing which the Government so strenously seek to avoid—that is, an increase in the number of public servants. We all want to see public expenditure carefully controlled. The amendment I am proposing now would, I suggest, be a modest step in that direction. The test is a simple one. It is not going to require a vast increase in staff and I would have thought therefore it would very much commend itself to the Committee.
§ May I give two examples which occurred to me this afternoon showing how difficult these provisions are to interpret. I pose these as a test for the Minister who is to reply. If he can tell me what citizenship the children in the examples I am going to give will acquire, I shall be interested to see whether he is capable of dealing with this matter off the cuff. I do not think many of those whom I have consulted have been confident in the answers that they gave when I first put these tests to them.
§ First, Mrs. Jones is a British citizen by descent and is married to a United States citizen. She works for IBM France at La Gaude which is the laboratories of IBM in the South of France near Nice. Mrs. Jones is transferred for a three year period to the IBM laboratories at Hursley in the United Kingdom near Winchester while remaining on the payroll of IBM France. She does not transfer to the United Kingdom company. After she has been living in the United Kingdom for two years she becomes pregnant. When the time comes for her to have the baby she returns to La Gaude, where she was formerly resident and the baby is born there. What is its citizenship?
§ The second example is Mr. Smith who is a British citizen by descent. Mr. Smith works for the Gulf Oil Company, an American company. He is working as a geologist on a North Sea oil rig. Mrs. Smith, who is a citizen of Sweden, lives in Aberdeen and of course he comes home to see her from the oil rig from time to time. She becomes pregnant. Mrs. Smith goes to stay with her mother in Stockholm and she has her baby there. What is the citizenship of that child?
§ If my amendment were passed it would be very simple because in both cases if the parent was a British citizen by descent but he had a father or a mother who was a British citizen by birth then the grandchild in question would be entitled to registration as a British citizen under this new subsection that I am proposing. The conundrums I have just put to the noble Lord the Minister are not untypical of the kind of puzzles which officials would have to try to work out if one leaves in these immensely complex provisions, which cover three pages. I seriously suggest that in the interest of simplicity, and in the interest of a reduction in bureaucracy, one should sweep away the whole of Clause 3 and replace it with a nice, simple transmission of citizenship to the second generation as I have proposed. I beg to move.
§ Baroness Elles
Although I have followed many of the sentiments expressed by the noble Lord, Lord 1066 Avebury, I do not feel able to go along with him on this amendment. Knowing how complex this Bill is, I may have come to the wrong conclusion, but as I read it the noble Lord, Lord Avebury, is eliminating the possibility of having a British citizen by descent by leaving out subsections (2) to (9). This is because under Clause 13 it states that a British citizen is a British citizen "by descent" if and only if:(a) he is a person born outside the United Kingdom after commencement who is a British citizen by virtue of section 2(1)(a) only or by virtue of registration under section 3(2) or 8".Since this amendment would have the effect of eliminating Clause 3 I rather think that this could not happen.
§ Baroness Elles
I am glad that I passed that test anyway. My other point is that I think that there must be some connection with the United Kingdom in some way or other. Under this amendment there need be no connection of any kind with the United Kingdom. I have followed the noble Lord's arguments very closely and I have supported many of them, but I thought that I should point out that there seemed to be some very grave defects in respect of this particular amendment.
§ The Duke of Norfolk
The two cases which the noble Lord, Lord Avebury has just mentioned—which were curious to say the least—are typical of what happens when one abandons jus soli. May I crave your Lordships' indulgence to say that when we were debating the amendment to Clause 1 dealing with the jus soli, I made a speech in which I said that I had had conversations with the cardinal and that he was confused about jus soli and jus sanguinis. Subsequently my noble friend Lord Boyd-Carpenter used what I had said—which was not very extreme—rather to imply that the cardinal and the Roman Catholic bishops had abandoned jus soli. It must be said today that the cardinal has asked me to say that as only one of the conference of Roman Catholic bishops, who meet only twice a year, they still stand by the nine points in their proposals and of which the bishops in your Lordships' House have taken great note. The cardinal still stands by those points and he still stands by the principle of jus soli too. The cardinal's main consideration is that the ethnic minorities should not be given cause for any worry about the security of their position in England as a result of this Bill. I am grateful to your Lordships for allowing me to make that comment. It is not really a comment that applies to this particular amendment but I wanted to get it placed on the record today.
§ 8.4 p.m.
§ Lord Hatch of Lusby
I fear that we are emphasising this issue of a close association with the United Kingdom to such an extent that it is becoming almost mechanistic. Surely the noble Lord's amendment, which refers to a citizen whose mother or father was a British citizen by descent at the time of the birth and whose grandfather or grandmother was also a British citizen, in itself demonstrates that there is a close 1067 connection with the United Kingdom. I do beg noble Lords not to give the impression that the only way in which one is associated with the United Kingdom is either by living here or by working for a British company or association. As I said in reference to a previous amendment, we want our young people to work all over the world. Let me give one example, which seems to me to illustrate a score of instances.
There is an organisation with which many of your Lordships will be familiar called the Economic Commission for Africa. The Commission needs assistance from the kind of development economists that we train in this country, and they welcome them. The Economic Commission for Africa cannot, by any stretch of the imagination, be said to be based in Britain or to have a special relationship with Britain, but surely that should not debar an employee—an assistant, a consultant, or an adviser—from working for that organisation. I am sure that I do not need to give any further examples to convince your Lordships that this is not an isolated case. This is the way in which the world is turning. It is becoming a multinational world. That is so in business just as it is in social, economic and political life.
The second objection that I have to what has been said against this amendment and to subsections (2) to (9) of Clause 3—although I would, of course, bow to the opinion of noble and learned Lords who know a great deal more about the law than I do—is that this would make bad law. It would make bad law because it is confused. It is bad law for the layman while at the same time, perhaps, being a feast for the lawyers. One only has to read through this clause to see how much the legal profession could make out of these three pages referring to the requirements for citizenship. What frightens me about this Bill time after time—particularly in Clause 3—is the power that is given to the Secretary of State. I believe this is also bad law. It seems to me that, if we are laying down the conditions for nationality, those conditions should be laid down clearly and decisively and should not depend upon the decision of a Secretary of State, whoever he or she may be. So I would fully support the noble Lord, Lord Avebury, in his amendment because it is simple, it is clear and people will know where they stand with it; above all, it will sweep away the suspicions that are raised in these three pages that the Bill is really trying to keep United Kingdom citizens in this country and tied to this country, rather than allowing them to take their rightful place in the world community, where we hope they can contribute.
§ Lord Boyd-Carpenter
May I take up a point—because if it was in order for the noble Duke I am sure it is in order for me—which was made by the noble Duke in his reference to our Committee stage debate with respect to the attitude of Church leaders. I would say at once that I should be extremely unhappy if any misunderstanding on my part of what the noble Duke, the Duke of Norfolk, reported as being the attitude of his Eminence, Cardinal Hume—a man for whom I have very great admiration—caused any misunderstanding at all. I should very much regret that. The episode, as the noble Duke will remember, was one in which we were fellow-workers in the same 1068 field. We were both trying to persuade our ecclesiastical leaders to adopt an attitude of moderation. I am sorry that we both failed.
§ Lord Elwyn-Jones
I do not know how far this inquest is going into what happened on another occasion, but at least it is most gratifying to learn from the noble Duke that the Cardinal was, if I may use an inappropriate word, impenitent about the attitude he took, which delighted us all at the time. Indeed, it is unfortunate that it may, through inadvertence, have been slightly misrepresented during the debate.
§ Lord Mackay of Clashfern
With regard to the last matter, I am glad to know that the noble Duke himself remains of the mind he expressed on the previous occasion and that he has been able to use this occasion to clarify the position between himself and his hierarchy. So far as this amendment is concerned, I might be pardoned for thinking that it was devised in order to produce the answer to both of the noble Lord's conundrums. I think my answer, on the basis of the present Bill, is that neither of the children to which he made reference would be United Kingdom citizens, unless there are any other facts involved which were not stated. On the facts stated, that is the position. I was almost wishing myself back in private practice as I heard these examples, in the hope that finding the answer might have produced some particular result for me!
Of course, the amendment proposed is simple. It has the effect of causing citizenship by descent to be transmitted for one more generation and then come to a dead stop—and if life were as simple as that, that might be a good thing to do. But the noble Lord, Lord Hatch of Lusby, pointed out that we are in a multinational world and, if I might refer to what was said by one of his noble friends earlier, world citizenship is the appropriate concept for that.
So far as British citizenship is concerned, it would surely be very unfortunate if, in all the circumstances, it were to be cut off at the second generation, because it may well be that beyond the second generation citizens by descent might have a very real connection with the United Kingdom which would entitle them to a right of abode here. Accordingly, I would respectfully suggest that the noble Lord has achieved simplicity at the expense of a practical solution to this problem. To achieve simplicity, he has extended the descent for one generation without qualification. It is a matter of judgment, but certainly we would suggest that our proposal of one generation only without qualification is right: for the second generation and beyond—and ours goes far beyond the second generation—the right thing to do is to devise reasonable criteria for determining the continuation of a real link with the United Kingdom.
It is perfectly true that people from the United Kingdom may want to go and work abroad. That is a very laudable aim and, if they continue to work abroad through many generations of their family, surely the natural result would be that the place in which they have their children would be the place where they would want to have their citizenship. The noble Lord, Lord Hatch, was inclined to suggest that these provisions are confused, and therefore, I 1069 thought he seemed to say, good for the lawyers. It is certainly not part of the Government's purpose in bringing forward these clauses to produce any kind of feast for the lawyers but to produce a reasonable system of criteria to cope with the many variations of circumstances in which a real connection will continue to exist down through the generations with the United Kingdom such as to justify a continuation of the citizen's link with this Kingdom.
It is also suggested that it is wrong to depend on any kind of discretion of the Secretary of State. As I explained earlier, subject to considering the formula the intention in Clause 3(2) is to provide an entitlement on the basis of criteria which are set out. In my submission, that is the correct approach. Accordingly, I would strongly recommend to your Lordships that the Government approach and what is already in the Bill is preferable to the simplification proposed by the noble Lord, Lord Avebury. It is a simplification that fails to take proper account of the practical situation which the case is designed to deal with. I would therefore invite your Lordships not to accede to this amendment.
§ Lord Mishcon
If I may make just a few observations, they really find their origin and basis in what the noble and learned Lord the Lord Advocate has just said. It must be right that if it is at all possible to have a simple principle instead of subsections (2) to (9) within this clause, it would be an admirable thing to do. I shall not repeat the remarks made by other noble Lords previously, that this is really a nightmare for the ordinary citizen to understand. I assure my noble friend that lawyers are not looking to make a feast out of any Act of Parliament: it is purely fortuitous if they happen to do so. It is not something that they seek.
But, to be absolutely serious about this, I do not follow the argument of the noble and learned Lord. If you can have a simple basis, it does not mean that you have to stop with that basis. Of course you can say: "This is the principle but there are classes where we wish to give a further privilege than would be within the principle". And so you go first of all to state the principle, but there is nothing to stop the noble and learned Lord from adding to that principle by saying that there are other classes which should have this privilege; and it has indeed the great benefit of simplicity by way of principle, in that the ordinary layman can understand it and will not need the aid of a lawyer to interpret it.
I must again emphasise, before I sit down, the terrific complexity of these provisions. It is all very well for us to laugh at the conundrums—if that is the proper plural of "conundrum"—which were submitted to all of us, and in particular to the imperturbable noble and learned Lord, as to what the position is under this Bill. The fact of the matter—and I repeat it—is that not just average citizens, but people who are trained to understand legislation, find this Bill a nightmare. Therefore, I ask your Lordships to give serious consideration to an amendment which gives a simple basis. It does not stop anybody from saying that there shall be additional provision in this Bill for those who do not come within the requirements, and it will not stop them from getting British citizenship. 1070 We can have simple terms in order to deal with those exceptions or additions.
§ Lord Mackay of Clashfern
In view of what the noble Lord, Lord Mishcon, has said, it is important to observe that the amendment of the noble Lord, Lord Avebury, does not permit of any transmission beyond the second generation. If you are to have transmission beyond the second generation, then you have to bring in criteria by reference to which that is allowed, and that will bring you into the same problem. Therefore, unless this is the sole solution, the simplicity which the noble Lord Lord Avebury, prays in aid for his amendment is not achieved. Accordingly, in my submission, what the noble Lord, Lord Mishcon, says is no more true of what the noble Lord, Lord Avebury, is proposing than it is true of what we are proposing, where we stop generally at the first generation and have criteria thereafter. If you stop at the second generation, you require criteria thereafter just the same, if you are going to allow it at all. So the middle course, which the noble Lord has proposed, is not open on the argument that the noble Lord, Lord Avebury, has produced.
§ Lord Harmar-Nicholls
There is one remark which ought to be made. I think that noble Lords are over-egging the pudding when they talk about subsections (2) to (9), which it is suggested be amended. I do not think that these subsections are so complicated. I find all legislation pretty complicated, by the time one has tried to find words to put into a statute which say what you really mean. It is true that the amendment of the noble Lord, Lord Avebury, is more simple. But if this is the worst of the most intricate words that we have to use, then we do not have much to grumble at.
I think that the noble Lord, Lord Mishcon, who has vast experience in having to interpret the law, used hyperbole to excess when he used the words he did a minute or two ago. He would be able to tell this House of hundreds or thousands of pieces of legislation which are much more intricate than this, and which deserve the words that he used. I think that this is simple. We underestimate what the supposed layman can understand, and I think that he could understand this. We must recognise how the layman can work out intricate words in social legislation which affects him. If it affects the layman, then it is understandable.
I do not believe that the extreme words which have been used about this clause are deserved. There is a wider area than the amendment would allow us to cover. Speaking as one who argues for the cause of people who are engaged in the European Community, I prefer what is in the Bill, because it leaves room to deal with borderline cases. Nor do I agree that we ought to be critical of the powers given to the Secretary of State. I can think of no better person to have a certain discretion in matters such as this than the Secretary of State of the day, whoever it is, who will have access to all the information and knowledge. This is not a bad clause, in terms of what it sets out to achieve, and the words which noble Lords have used will rob the clause of the emphasis that is needed in other parts of the Bill. The other clauses of the Bill are intricate, but this is not, and I think that noble Lords have wasted their words.
§ Baroness Gardner of Parkes
I should like to speak very briefly, because the amendment of the noble Lord, Lord Avebury, worries me to the extent that it would stop dead at the end of the next generation. As an old Australian, I know that the patriality laws work very strongly against someone like myself, who has been Australian for too many generations, in terms of immigration. I make that comparison, because I do not think anything that cuts off sharp at that point is good. But in some ways there is great merit in the amendment. If the noble Lord had instead put his amendment forward in such a way that it replaced paragraph (a) of subsection (2) and replaced the word "and" with "or", and then left all the remaining qualifications and all the further detail, that would leave both aspects open.
I feel strongly on this, because the fact that the clause states that one must have "relevant employment" gives me cause for concern. I do not see why one should have to be employed at all. If you are British by descent, it is a shame if you cannot go anywhere and do anything that you want in the world without these restrictions. I speak as an Australian, whose children were all born in this country and who were all registered at birth as Australians, and yet I have never had to prove in any way that I had any connection or continuing connection with Australia. But I object to anything which cuts off in one generation, as the amendment would do. Therefore, I should like simply to replace paragraph (a) of subsection (2), but leave in the other part of the clause.
§ Lord Avebury
I should certainly be delighted to do anything that would satisfy an Australian, having close Australian connections myself. My sister has lived in Australia for the last 28 years and there are several Australian nephews and nieces who have no difficulty at all in travelling all over the world and working in Great Britain, France and elsewhere. It has always seemed to me that no legislation would stop Australians from moving around the world, so great is their ingenuity in getting around the immigration laws of Great Britain and many other countries, to which they add lustre by their presence.
The noble Lord, Lord Mishcon, was very generous in agreeing that we should try to take work away from the lawyers. This is an argument which I had not myself thought of. Everybody knows how, under the present discretionary rules on nationality, people go to lawyers. Whether or not it does them any good is rather doubtful. Not that I have anything against lawyers; I am merely saying that when matters are subject to discretion of the Secretary of State one does not know what one is arguing about. The Secretary of State has absolute discretion to grant or refuse somebody citizenship, and under Clause 3, he has to be satisfied that all these requirements which are laid down here are met.
The noble Lord, Lord Gifford, has already drawn our attention to the difficulties inherent in that procedure. If you come to challenge the Secretary of State you may find yourself in difficulties, because the court may decide that its jurisdiction over something which the Secretary of State has declared he is satisfied about will be very limited indeed. But, none the less, people will employ lawyers to go to the court and 1072 challenge decisions of the Secretary of State, so that the expense which I was talking about will be caused to the individual applicants, as well as to the taxpayer who will have the enormous burden of carrying the extra civil servants needed.
I have already dealt with the argument of the noble Baroness, Lady Elles, in saying that, obviously, if the Committee were to accept an amendment of this kind there would have to be consequential alterations to Clause 13. I hope she will accept it from me that I did not go into the drafting of those, because I was hoping that the Government, having accepted this amendment, would themselves take on board the consequential drafting job. Even if one does dot all the "i's" and cross all the "t's", as she knows, the Government draftsmen always know better than the amateurs and they will take it away and come back with different wording. So I thought: Why bother with Clause 13, when that is something which the Government can tackle themselves?
There are two opposite arguments that have been put. The noble Baroness, Lady Elles, says that the second generation may have no connection with the United Kingdom, and I am perfectly happy to concede —if it will make the noble Baroness any happier—that when we come to construe this we should provide also that the father or mother, the British citizen by descent, in order to be able to transmit citizenship to the second generation must at some time during his or her life have been settled in the United Kingdom.
That seems to me to satisfy those who think that by covering the whole of the second generation, as I am seeking to do, we fail to comply with the condition which is central to the Bill: that anybody having British citizenship must have a connection with the United Kingdom. So we are talking about somebody who goes abroad to work and has a child there; the child comes back to the United Kingdom and is settled at some point during his life; he then goes abroad again. And in the second generation I am saying in this amendment that he can transmit citizenship.
If it will help to satisfy the noble Baroness that the second generation has this continuing connection with the United Kingdom which is of such importance, I certainly agree that it could be written into the Bill at the Report stage. However, I think that contradictory arguments have been used by the Minister in trying to refute the amendment. He has not said anything against the idea of having this extension to the second generation but he said that it would be unfortunate if in all circumstances the right of citizenship were cut off at that point. That is why I said that I was not going to alter Clause 3(1). The discretionary power which the Secretary of State has there to confer citizenship on a minor upon application will still remain.
It has been accepted on all sides that as one goes down the generations fewer and fewer people will either want British citizenship or be entitled to it. There will be a few cases like those which the right reverend Prelate mentioned earlier where there is a tradition of working overseas in a particular occupation from one generation to the next. A person who goes abroad as a missionary may marry somebody overseas and have children overseas. Then, in turn, those children will go overseas and become missionaries. 1073 Such a tradition may carry on within the same family for more than two generations. I am quite prepared to accept that. However, as you increase the number of generations the proportion of that population which would be likely to want British citizenship must gradually decline. More and more people would—
§ Baroness Trumpington
May I ask the noble Lord why he thinks that it would become proportionately less? Surely therein lies the danger; that it will not become proportionately less.
§ Lord Avebury
I am accepting the second argument that was put by the noble and learned Lord, and this is where I am saying that he is a little inconsistent. He says that if people continue to work overseas for several generations—I paraphrase him—surely the natural country for them to have their citizenship in is where they live. That is what the noble and learned Lord said, having remarked in the previous breath that it would be unfortunate if in all circumstances the rights of citizenship were cut off at the second generation. I agree with the noble Lord's second proposition: that as a family lives and works overseas it gradually acquires closer and closer connections with the country to which it naturally belongs and gradually relinquishes the connection it has with the United Kingdom. The second generation may be an arbitrary cut-off point, but that is why we have the provision in Clause 3(1) to enable it to continue.
I referred earlier to the case of United Kingdom passport holders who remain in certain countries of the Southern cone of Latin America. We have seen what happens there. I told the Committee that in many cases the links that they retained with the United Kingdom consisted only of the names of their families of origin. The name "Wilson" was one which I mentioned. I told the Committee that those people had never been to the United Kingdom, that they did not speak a word of English and that the whole of their cultural and social background was in Argentina or Chile. After three or four generations one would expect this to happen in the case of people who live continuously abroad. That is why I chose two generations as what I considered to be a reasonable cut-off point, with the retention of the discretionary power which the Secretary of State has under Clause 3(1).
If, however, we are talking about the people who are not covered by Clause 3, despite the enormous complexity of subsections (2) to (9) a number of examples have been given to us which I should have thought were extremely powerful. The noble Lord, Lord Hatch of Lusby, has just given us an additional example; the Economic Commission for Africa. One noble Lord said earlier that he had a son who worked for the Botswana Development Commission. There will be innumerable categories of employment in which people may engage overseas and which everybody wants to see British citizens doing: going out into the world, helping in particular the development of the Third World but becoming part of the family of nations and extending the good name of Britain over the five continents. If this is something which the Committee does not want to see, by all means let it retain the nine subsections of Clause 3 but if it believes, as I do, that 1074 Britain still has a major contribution to make to the development of the world then, for goodness' sake! let it pass this amendment.
§ 8.36 p.m.
§ On Question, Whether the said amendment (No. 34) shall be agreed to?
§ Their Lordships divided: Contents, 49; Not-Contents, 92.1075
|Airedale, L.||John-Mackie, L.|
|Ardwick, L.||Llewelyn-Davies of Hastoe, B.|
|Avebury, L. [Teller.]||Lloyd of Kilgerran, L.|
|Aylestone, L.||Mishcon, L.|
|Bacon, B.||Northfield, L.|
|Birk, B.||Nunburnholme, L.|
|Bishopston, L.||Phillips, B.|
|Blease, L.||Pitt of Hampstead, L.|
|Boston of Faversham, L.||Ponsonby of Shulbrede, L.|
|Brockway, L.||Ross of Marnock, L.|
|Chitnis, L.||Seear, B. [Teller.]|
|Cledwyn of Penrhos, L.||Seebohm, L.|
|Collison, L.||Southwell, Bp.|
|David, B.||Spens, L.|
|Davies of Penrhys, L.||Stewart of Alvechurch, B.|
|Elwyn-Jones, L.||Stewart of Fulham, L.|
|Elystan-Morgan, L.||Stone, L.|
|Gifford, L.||Taylor of Gryfe, L.|
|Hampton, L.||Thurso, V.|
|Hanworth, V.||Tordoff, L.|
|Hatch of Lusby, L.||Truro, Bp.|
|Hooson, L.||Underhill, L.|
|Hughes, L.||Wade, L.|
|Jeger, B.||White, B.|
|Jenkins of Putney, L.|
|Abercorn, D.||Harmar-Nicholls, L.|
|Airey of Abingdon, B.||Henley, L.|
|Ampthill, L.||Hives, L.|
|Auckland, L.||Home of the Hirsel, L.|
|Avon, E.||Hornsby-Smith, B.|
|Bellwin, L.||Hylton-Foster, B.|
|Belstead, L.||Inglewood, L.|
|Bessborough, E.||Kemsley, V.|
|Boyd of Merton, V.||Killearn, L.|
|Boyd-Carpenter, L.||Kilmany, L.|
|Brabazon of Tara, L.||Lane-Fox, B.|
|Brougham and Vaux, L.||Long, V.|
|Caithness, E.||Loudoun, C.|
|Cathcart, E.||Lucas of Chilworth, L.|
|Chelwood, L.||Lyell, L.|
|Cockfield, L.||McFadzean, L.|
|Colwyn, L.||Mackay of Clashfern, L.|
|Cork and Orrery, E.||Macleod of Borve, B.|
|Crathorne, L.||Mansfield, E.|
|Cullen of Ashbourne, L.||Marley, L.|
|Denham, L. [Teller.]||Massereene and Ferrard, V.|
|Dormer, L.||Monk Bretton, L.|
|Drumalbyn, L.||Montgomery of Alamein, V.|
|Elles, B.||Mottistone, L.|
|Elliot of Harwood, B.||Mountevans, L.|
|Elton, L.||Murton of Lindisfarne, L.|
|Faithfull, B.||Norfolk, D.|
|Ferrers, E.||Northchurch, B.|
|Fortescue, E.||O'Hagan, L.|
|Gardner of Parkes, B.||Orkney, E.|
|Geddes, L.||Platt of Writtle, B.|
|Gibson-Watt, L.||Plummer of St. Marylebone, L.|
|Glenarthur, L.||Renton, L.|
|Gowrie, E.||St. Aldwyn, E.|
|Greenway, L.||St. Germans, E.|
|Gridley, L.||Sandys, L. [Teller.]|
|Hailsham of Saint Marylebone, L.||Sharpies, B.|
|Skelmersdale, L.||Trenchard, V.|
|Soames, L.||Trumpington, B.|
|Stamp, L.||Vaux of Harrowden, L.|
|Stodart of Leaston, L.||Vickers, B.|
|Strathcarron, L.||Vivian, L.|
|Strathclyde, L.||Westbury, L.|
|Swinfen, L.||Wynford, L.|
|Trefgarne, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 8.44 p.m.
Lord Drumalbyn moved Amendment No. 35:
Page 3, line 14, after ("Kingdom") insert ("either of whose parents was a British citizen at the time of the birth").
§ The noble Lord said: If the Committee will allow me, I should like to take Amendments Nos. 35 and 39 together; No. 35 is a sort of paving amendment for No. 39. If does not add anything to the sense of the clause; it merely transfers the first condition, line 21, to the beginning of the subsection, and the reason for that is purely to enable a proviso to be inserted there which involves an alternative condition to the condition in paragraph (b).
We are here talking about a person born outside the United Kingdom to parents, one or other of whom is a British citizen at the time of his birth. It involves an application for registration as a British citizen provided that the application is made within a period of twelve months from the date of the birth and that the parent in question—that is, the one who is the British citizen—was employed in relevant employment throughout the period of two years ending with the date of the birth and was on that date employed in overseas employment. What my second amendment would do would be to provide as follows, as an alternative proviso, to that:
That the mother of the person in question was temporarily absent from the United Kingdom at the time of the birth and returned to the United Kingdom within six months thereof or such longer period as the Secretary of State may consider reasonable in the circumstances".
§ If I may start with a real glimpse of the obvious, it is, of course, the mother who has the child, but it is the father in most cases here who will be the person working abroad; though it may be the mother. So we have two separate sets of conditions to consider: one is where the father and the mother are both together abroad, and the other is where the mother is the parent in question. It seems to me that there is no really good and sufficient reason to restrict the entitlement to register the child as a British citizen to a parent already engaged in a relevant activity overseas for two years before the child is born. I do not see what sufficient reasons there may be for that.
I would ask my noble friend who is to reply why this was inserted. It certainly leaves a gap. At a time when the patents may be young and active—a young, man going abroad to a job new with his wife—it seems almost absurd to put a restriction on the time at which they may have their first child. If the child is to be eligible for British citizenship they must wait for two years before the child is born. I should have thought that it could easily happen that the woman, or the man accompanied by his wife, may be sent abroad for quite a short time, by his employers in the United
Kingdom, on an assignment that is expected to last perhaps only days or weeks, and in fact the assignment goes on for quite a long time, but possibly not as long as two years. This would obviously upset any family planning that had been done with a view to the child's becoming a British citizen. I think that that is wrong. The way in which I am suggesting that it should be overcome is by emphasising the later condition of the connection with the United Kingdom and saying that the appliction call be made provided the mother brings the child back to the United Kingdom within six months of the birth:
or such longer period as the Secretary of State may consider reasonable in the circumstances".
§ I cannot understand why there should be a gap of two years. I think that, even though there is some risk of "cheating"—I think that that is how my noble friend described it—it could be checked and overcome in some other way than by imposing this two-year period of waiting before the child is born. That seems to me to be quite unnatural. If parents are really anxious that the child should be capable of being registered as a British citizen, it will be a very severe disincentive for the parents to go abroad at that time in their lives. It does not seem to me to be sensible at all.
§ I hope that I have made it clear that it is, in my view, inappropriate to distinguish between a child born two years after the parents have gone abroad and a child born outside the United Kingdom two days, two weeks, two months or whatever it may be after the parents have gone abroad. I have not specified in the amendment that it must all be in the course of employment and that is why the "or" is there: it is an alternative. It may not happen very often, but I suspect that it would happen in a number of cases and quite enough cases to make it worthwhile to cover it by legislation. Provided that the requirement that a close connection with the United Kingdom is maintained, the important point is to safeguard the entitlement of a child of British parents, doing a job or not doing a job abroad, to be registered as a British citizen. I beg to move.
§ Lord Mackay of Clashfern
The substantive amendment to which my noble friend has spoken is Amendment No. 39. Perhaps I should first emphasise that the phrase "relevant employment" which is part of the conditions does not need to be employment overseas. In order to make that plain, because a question was raised in the other place about it, there is an amendment down in the name of my noble friend Lord Belstead—Amendment No. 50—which adds in line 35: "whether or not in the United Kingdom". So provided the United Kingdom employment was relevant employment, the child that would get the benefit of Clause 3(2) can be born quite a short time after going overseas.
There is, of course, also power in other circumstances to shorten the two-year period in Clause 3(5)(b) at the top of page 5. There is the other provision of Clause 3(6) where the family comes back. That is a clause which might cover some of the situations which my noble friend has in mind. There is a last fallback as regards this aspect of the matter—namely, the registration under the discretionary power of Clause 1077 3(1). However, the main point is dealt with by the first matter which I mentioned. I hope that in the light of that explanation my noble friend will feel able to withdraw the amendment.
§ Lord Boyd-Carpenter
I should be grateful, having listened to my noble and learned friend, if he could clarify a little, at least to my mind, what the reason is for the prescription of this two-year figure at all? I take note that he has said that it is not always to be insisted upon. However, what exactly is the point? What is the justification for it? Is it not just one of these further barriers which the clause puts up and which, on an earlier amendment, a good many of us thought amounted to a good deal of discouragement to people going abroad at all?
§ Lord Mackay of Clashfern
The purpose of the two-year period is to ensure a reasonably substantial period of employment. The point which I made earlier was that that employment can start in the United Kingdom and be for practically all the time before the birth in the United Kingdom. But the idea is that you cannot just take up employment of a very short duration, as it were for the purposes of obtaining citizenship for the child. Two years is a reasonable period to which the employment must conform if it is to be regarded as sufficiently substantial to give the necessary link. That is the explanation. The two-year period is, as I have said, subject to a discretion if the circumstances are sufficient to show that a shorter period was sufficiently substantial for the purpose.
§ Lord Boyd-Carpenter
Does that mean that a young married man whose wife is well on in pregnancy simply cannot accept an overseas appointment?
§ Baroness White
I should like to emphasise this point. This part of the clause must have been drawn up by a man.
§ Baroness White
I should hope a bachelor. As the noble Lord, Lord Boyd-Carpenter, has indicated, it is absolutely absurd. How could anybody expect to regulate their private life—and some people are not very good at it—in such a way that they could make quite sure that the birth of their child coincided with the appropriate moment of employment? How many young couples, after all, will wait one year three months before they do anything?—because that really is what is being demanded in this clause. You must be in a job and if you are married you must have a close period, so to speak, so that if you think you may be posted overseas your child does not arrive at any point before the requisite period. That does not make sense at all. You might possibly say a "total" period of employment—before and after—but to say that you must be employed for two years before you are allowed to have a child born overseas is nonsense.
§ Lord Avebury
The noble and learned Lord says that you cannot exclude relevant employment in the United Kingdom, and so he is trying to suggest to the 1078 Committee that if somebody has been employed, say, for 18 months in the United Kingdom and he then goes abroad for the last six months, he satisfies the test of being two years in relevant employment because three-quarters of that time will have been in the United Kingdom and only the last six months abroad; therefore, he says, the couple is perfectly safe to go overseas because they will fulfil the condition. But suppose the father and the mother have not been in employment in the United Kingdom. Let us suppose that they were students for the period before their departure and they have both just graduated and are offered a job overseas immediately after the wife has become pregnant, so they know a child is on the way? They will say to themselves, "We cannot accept this employment in Tanzania" or wherever it may be "because we have not satisfied the condition of relevant employment; we have been at the University of Strathclyde for the past 18 months and so we have not been employed at all. Therefore, if we go to Tanzania we shall only have been six months in relevant employment by the time the baby is born and the baby will not qualify". Is not that the effect of this clause? Could the noble and learned Lord correct me if I am wrong?
§ Baroness Elles
Perhaps I could intervene. It seems to me that we have rather a lot of unemployment in this country. I am sorry to hark back to the European Community, but surely one of the reasons for being members of the European Community is in order to benefit from the jobs available in other parts of the Community; that is, in nine other member states or foreign territories to the United Kingdom. Why is it that someone has to be employed for two years in this country or in a job related to the United Kingdom in order to have the benefit of British citizenship for his child, should the child be born abroad? Surely the whole point is that if the person is unemployed, he should be able to accept a job anywhere in the world, regardless whether his wife is going to have a child within a period of two years. In a period of unemployment, I simply cannot understand why the Government cannot see this point.
§ Lord Mackay of Clashfern
I think that it is quite plain that the Government's desire is to have a sensible criterion for dealing with this question of employment. This is why there is a special discretion in subsection (5)(b) to modify the period. One can see that if the person in question has been in relevant employment for the whole time that he has been abroad—I am taking it that it is the father just for the sake of the illustration—and that employment was relevant, then it would seem a very good case for the discretion to be exercised in terms of Clause 3(5)(b). I have already explained the idea of having the two-year period as being a requirement of a reasonably substantial connection in employment between the parent and the United Kingdom. I can certainly see borderline cases of the kind that have been mentioned, and it seems to me that a discretion of this particular kind is, in these circumstances, perfectly appropriate, particularly if the employment looked such as was likely to continue for a substantial time after the birth.
§ Lord Avebury
In the circumstances that have been outlined, for example, by the noble Baroness, Lady Elles, where the couple have been unemployed, or in the case that I mentioned where the couple have been at university, the wife is pregnant and they are going overseas—they have the offer of a job—and the Secretary of State is asked to treat subsection (2)(b) as if the reference were a reference to, let us say, six months, the period for which they will be in qualifying employment overseas prior to the birth is within that total.
Is the noble and learned Lord the Lord Advocate telling the Committee that in the circumstances, having got the offer of a job, the Secretary of State will give a certificate to the couple so that when they go overseas, having accepted this job, they will know that the baby will be born on the right side of the Nationality Bill blanket? That is what I want to know; that they will get this certificate before they accept the job and go overseas and do not run the risk that when it comes to it the Secretary of State may not feel like exercising the discretion given to him under subsection (5)(b).
§ Baroness Seear
Potentially, how many people are we talking about? Surely a very small number of people will use this. Let us suppose that everybody who is interested in working overseas "fiddles" a bit—what is the right expression? It would only amount to a very small number of people getting British citizenship who would not get it if this clause were included. Does it really matter? You do not have to plug every hole. I do not think that the problem is big enough yet to elaborate the Bill in this way.
§ Lord Boyd-Carpenter
Surely the noble and learned Lord will agree that what he is trying to deal with is indiscretion. Is it not bordering on the verge of the fantastic to suggest that a couple, the wife being pregnant, will hastily apply for a job overseas in order to get British citizenship for the unborn child? On how many occasions in the real world will this happen? On the other hand, by keeping this two-year provision in the clause—and I do not want to be a bore about this, because I spoke at some length on it earlier—he will add to the general apprehensions of those who the Government want to have to rely on Clause 3 for the citizenship of their child when they go to work abroad for this country. Surely the sensible thing for the Government to do is to drop this silly provision. If they do not, I hope that my noble friend will press his amendment.
§ Baroness Gardner of Parkes
A point which I think has not been taken fully into account here is that this Nationality Bill was to be of great help to immigrants to this country in so far as at the moment people like myself are not entitled to take jobs in the EEC without a special type of work permit. Many immigrants have now said to me how very pleased they would be because under the Bill they will have full nationality rights and have open access to the EEC and employment there.
1080 But as I understand it, we are now producing a counter-argument of all the difficulties that will occur to them if they are in a child-bearing age group and if they avail themselves of jobs in the EEC. As has been mentioned by my noble friend Lady Elles, it would be a great pity to prevent people going abroad who might perhaps be unemployed. This might open up a whole aspect of new jobs to them and they would be deterred from taking them because they would have had a difficult enough time in obtaining British citizenship for themselves and they might well then put it at risk for their children if they take jobs which are open to them in Europe but which are not suitably British connected.
§ Lord Drumalbyn
It seems to me as though it would be wise for me to say to my noble and learned friend that this is one of the cases where he should perhaps consider what has been said about this after we have finished with Clause 3. I think that a great deal of comment will take place on Clause 3 because I do not see how we can restrict this only to companies in the context of which we have been talking. We would have to take it wider, in view of the fact that my noble and learned friend has made it so clear that the employment can be with a company or association established in the United Kingdom, not as the base, so to speak, but as one of the six sets of circumstances that are outlined here, five of which relate to employment overseas and only the one to employment in this country.
It needs looking at again. I am grateful to him for elucidating this for us. It shows how easy it is to avoid seeing what is virtually staring one in the face. Nevertheless, it has been useful to raise this matter. I think it would be a mistake to divide tonight. It needs further consideration in the light of what we are about to discuss. With that, I hope noble Lords will agree to my withdrawing this amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 36 not moved.]
§ The Deputy Chairman of Committees (Lord Ampthill)
Before calling Amendment No. 37, I should point out to the Committee that if it is agreed to I cannot call Amendment No. 38.
Lord Geddes had given notice of his intention to move Amendment No. 37:
Page 3, line 17, leave out ("if the Secretary of State is satisfied that") and insert ("provided").
§ The noble Lord said: In view of earlier discussion on this matter, I do not move this amendment.
§ [Amendment No. 37 not moved.]
§ 9.10 p.m.
Lord Gifford moved Amendment No. 38:
Page 3, line 17, leave out from ("if") to ("the") in line 18.
§ The noble Lord said: I move this amendment briefly. It raises the same point as the amendment just not moved by the noble Lord, Lord Geddes. I am aware that the noble and learned Lord the Lord Advocate has said that in connection with the phrase, 1081 "if the Secretary of State is satisfied", in this clause, as in other clauses, the Government are going to look at it again. I rise to say only that this is the sort of clause which makes the point clearly that the present formula is really not good enough because of the subjective nature of the conditions which have to be fulfilled by an applicant under this subsection.
§ If the applicant is turned down because the Secretary of State says, "I am not satisfied that your employment has a close connection with the United Kingdom" or, "I am not satisfied that you intend to maintain a close connection with the United Kingdom", that is exactly the sort of decision which the court would not review if the formula "if the Secretary of State is satisfied" remains. If it is deleted, I think that the applicant, or his parents, could then go to court and have a proper decision. It really makes it clear when one looks at the terms of this clause that some review is needed of this phraseology. I beg to move.
§ Lord Renton
This gives me an opportunity of saying something which I hope may be considered relevant to this amendment, but which I think should be said at some stage, in view of some remarks made by a noble friend of mine in an earlier debate today about the way in which the Home Office handles the various applications made for registration. I say this with due consciousness, and being very glad, that there is a former Minister of State for the Home Office sitting on the Opposition Front Bench at the moment and a former Under-Secretary of State sitting behind him, and that there are I think three or four of us on our side, not all here tonight, who have had the responsibility of, among other things, seeing what happens in the so-called Aliens and Nationality Division of the Home Office as it used to be called although I am not sure what it is called now.
I should like to place on record—and perhaps some of those I have mentioned are in a position to do the same—that the Home Office has a most excessively careful method and has had for years of dealing with these applications under the present law. I should have thought that in view of the great variety of circumstances and the complexity of some of these matters that it is a record of which the Home Office could be proud. How can that comment be tested? One must bear in mind that in the last resort when the Home Secretary is given the kind of responsibility that he is given both under subsection (1) and subsection (2) he can be questioned in Parliament and his representative in your Lordships' House can be questioned just as the Home Secretary can in another place. One knows from experience—and I had this responsibility for three-and-a-half years—that the number of questions is extremely small. When there was a doubt people did not hesitate to go to their Member of Parliament or indeed as has been said, to a lawyer, but the system does in difficult circumstances work well, and there may be others who would care to support me in saying so.
§ Lord Boyd-Carpenter
As my noble friend Lord Renton was undoubtedly referring to an earlier observation of mine, but was tactful enough not to 1082 mention my name, I think it only courteous that I should respond. I said—and I do not withdraw it in any degree whatever—that Home Office officials were sometimes not very sensitive, or were insensitive (I forget which way round I put it), in the handling of these types of cases, and I am sorry to say that that has been my experience. I am lost in admiration for my noble friend's loyalty to his old department. That does him and the department the greatest credit, but I am afraid it has not been my experience, and in a sense we have had corroboration of it today in the terms of the letter submitted for ministerial signature which the noble Baroness, Lady White, read to us and which seemed to me quite extraordinarily insensitive in the context of those people who work for the European Community. There have also been immigration cases which have come to the courts and of which there has been criticism. I do not want to make heavy work of this but on this issue I am not prepared to accept a rebuke, even from one of my oldest friends in the House.
On the merits of the amendment, I have some sympathy with the noble Lord, Lord Gifford. I do not like the form of words here which would appear, as he says—and he is a lawyer—to cut out a possible appeal to the courts. These are matters of the greatest importance to the individual concerned, and even if the officials at the Home Office were the archangels that my noble friend Lord Renton thinks they are, it is sometimes good to have a line of appeal beyond an archangel, although in the presence of the right reverend Prelate I would not like to carry that argument much further. In all seriousness, these are matters of great importance to the individual and if that individual feels he is being deprived of what Parliament has wished him to have, many of us would feel easier in conscience if he could take it to an appropriate court.
§ Lord Elwyn-Jones
It will probably cause no surprise if I suggest that the civil servant who has to interpret and apply these provisions is bound to create and meet problems with whatever integrity and sensitivity he applies to the task; this gibberish is presenting him with an intolerable task. We will look shortly, I hope in a little more detail, at subsection (2)(b) which I am suggesting should be repealed. It presents problems of intolerable difficulty and is a nonsense.
In so far as the clause creates an entitlement for registration in the circumstances of the child who is being considered there, with one hand it creates an entitlement and with the other it apparently gives power to the Secretary of State, on his own ipsi dixit, to withdraw the entitlement. I entirely agree with what others who preceded me have said, and particularly my noble friend Lord Gifford, that clearly the provision in regard to the intervention of the Secretary of State in the situation where an entitlement is allowed will, at the very least, create doubt about the value of the entitlement and, at the most, indicate the fear that the entitlement will not be met. Accordingly, I am grateful to have heard the Lord Advocate, on an earlier occasion when we were discussing this issue, say he would consider it sympathetically, and I hope that is still his state of mind.
§ Lord Avebury
Perhaps I may reply briefly to the noble Lord, Lord Renton, as someone who is on the other end of the line to the Home Office, as it were, in that I am frequently making representations to Home Office Ministers in areas where they must exercise their discretion. I am afraid I do not share Lord Renton's confidence that those Ministers invariably get it right.
The honourable gentleman who deals with these matters in another place, Mr. Raison, has said that he gets 1,200 letters a month. In a speech to the UKIS annual conference last year, he said he spent between two and three hours a day looking at his correspondence. I have worked it out that if they come in at the rate of 1,200 a month and he spends two to three hours a day looking at them, then if he spends that amount of time looking at them every day of the week from Monday to Friday and he works 50 weeks of the year, taking only two weeks holiday, he is giving an average of between two and three minutes to each piece of correspondence. That is the extent of the scrutiny which at the moment the Minister is able to give to the cases on immigration and nationality which are submitted to him for his decision.
Some of them are very important cases, particularly to the individuals concerned. They may not be terribly important statistically, but consider, for instance, the case of a young woman who wants to come here to visit her father, and her sister is getting married in the United Kingdom, so she wants to spend a couple of months here from India visiting her father and attending her sister's wedding, and then return home. When that request is refused by the entry certificate officer in Delhi, and when the refusal is confirmed by the Minister—as when I made representations to him on behalf of this lady—there is no remedy which can possibly be afforded to her if subsequently (as happened) I take the case before the immigration appellate machinery and I win the case before the adjudicator, because by that time her sister has already got married and she has missed the wedding. There are numerous cases of this sort that everybody could quote concerning a decision of a Secretary of State—and I do not say that in a case of that sort he is looking at the matter himself; he has probably only just signed the letter. How could he examine it in one or two minutes? These decisions affect the lives of individuals.
I had another case which is a bit closer to this Bill, where somebody applied for citizenship and was turned down. After quite a lot of probing I discovered from the then Minister, Mr. Brynmor John, why the application had been refused. This is what it turned on. The man went for an interview and the officer who conducted the examination asked him whether he had ever been convicted of an offence in an English court. He said, yes, he had been through a red light and had come before a court and was fined. The interviewing officer asked him for his licence. He produced it to the officer and the officer said, "But this is an international driving licence. How did you come by it?" The man said: "My wife is Swedish. I go to Sweden every year on holiday and I renew it every time". The officer said, "Don't you realise that you can only have an international driving licence 1084 for one year and then it cannot be renewed?" He said, "No, I am afraid I did not realise that; neither did the authorities who issued it to me in Sweden, and neither did the court which endorsed it". So the interviewing officer said: "But haven't you ever considered taking a driving test in the United Kingdom?" The man said "Well, yes, as a matter of fact I had considered that. I had a test arranged for this coming April but it was not convenient". That was the substance of the interview.
Now the version that I had from the Minister was that this gentleman had told a lie to the entry certificate officer in that he had falsely claimed to have made arrangements for a driving test when, on inquiry to the test examiner, the interviewer found that it had been cancelled. It was a straightforward misunderstanding, and yet this man was turned down and no amount of persuasion that I could exercise on the then Minister was able to deflect him from the decision that this man was to be kept from citizenship for a period of two years, at the end of which he could re-apply; and then again it would be a matter for the discretion of the Minister.
Anybody who is in the position of dealing with the Home Office on a day-to-day basis knows that there are a host of decisions as arbitrary and unfair as the two that I have just mentioned; and even the noble Lord, Lord Belstead, who is on the receiving end of quite a lot of my correspondence (although not mainly on immigration and nationality but concerning prisons) I think will confirm from the times when his honourable friend Tim Raison is away, that many cases are put to him and quite a lot of them come out in favour of the applicant. Something like two-thirds of the cases that I put to Mr. Raison I must say, in all fairness to him, are ultimately determined in favour of the person seeking leave to enter or to remain or the person seeking nationality. So there is an element of discretion which is quite properly exercised within the immigration rules and the law on nationality, but always there is the hard case where the person should have been entitled to enter the United Kingdom or to remain in the United Kingdom and was debarred. The person should have been entitled to the claim for citizenship and was refused for frivolous or inadequate reasons.
So I am not in favour of wide powers being granted to the Secretary of State and I think that the phrase in question, appearing as it does in a clause which is absolutely central to this Bill, is one that could be fraught with grave dangers, will create an enormous amount of litigation and will expand the volume of hardship which, with great respect to the noble Lord, Lord Renton, Home Office decisions so frequently cause already.
§ Lord Geddes
It will not surprise members of your Lordships' Committee to learn that I am very much in favour of the amendment of the noble Lord, Lord Gifford. However, I did not move my own amendment, which beat his by a very short whisker, since there was considerable discussion on this subject on the first day of the Committee, involving in particular the noble Lord, Lord Gifford, and the noble Viscount, Lord Colville of Culross. As I understood the noble and learned Lord the Lord Advocate on the Front Bench, 1085 as a result of that discussion he undertook to look at the position very seriously. With great respect, it seems to me to be a slight overuse of the time of your Lordships' Committee to discuss the whole matter all over again. I have several notes on exactly the same questions as have been raised. The point has already been taken by the Front Bench and surely we should leave it at that.
§ Lord Mackay of Clashfern
I am greatly obliged to my noble friend for that remark. As the noble and learned Lord, Lord Elwyn-Jones, said earlier, I had previously expressed myself as sympathetic to this matter, and of course I remain of the same mind. As has been said, the context in which the phrase occurs here is slightly different from the context in which it occurred earlier, and that point clearly calls for particular consideration as to the proper phrase to use here. Certainly our intention is that this should be an entitlement which should be subject to appeal to the court; and that is the purpose of the clause. The exact scope of the appeal will depend on the precise phrase chosen, and we shall do our best to draw up a phrase that satisfies all members of your Lordships' Committee.
§ Lord Gifford
In the light of that reply I want to create unity in the Committee and not increase division. Regardless of whether the noble Lord, Lord Renton, is right or wrong, we all agree that people who are aggrieved by decisions of the Secretary of State—whether those people be few or many—should have the right to have their entitlement tested in a court of law. I add only this point. The courts of law are very reluctant to review administrative decisions. I mention that because it might help the noble and learned Lord in his consideration of the matter. There might be needed a clause that actually states that a person aggrieved by a refusal of registration shall be entitled to apply to the High Court for a declaration and the court should grant the declaration if it considers that the requirements are satisfied. Some such clause might be needed so as to give this matter the clarity which we all wish it to have. I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 39 not moved.]
The Deputy Chairman of Committees
Before calling Amendment No. 39A, I should point out to the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 41, 42 or 43.
§ 9.28 p.m.
Lord Elwyn-Jones moved Amendment No. 39A:
Page 3, line 23, leave out paragraph (b).
§ The noble and learned Lord said: The difficulties that the provisions of subsection (2) create in the way of the registration of the citizenship of a person born outside the United Kingdom are enormous. I think that there are seven requirements in subsection (2). First, the registration must be made within a period of 12 months from the date of the birth. We have already had some discussion on the arbitrariness— 1086 if that is the correct word—of that period and the necessity for it. We have already discussed, too, the next requirement: that the Secretary of State must be satisfied. I shall say no more about that.
The subsection then refers to certain requirements that should be complied with. It states that the requirements should be fulfilled
in the case of either
father or his mother ('the parent in question')".
The next requirement is:
that the parent in question was a British citizen at the time of the birth".
That is reasonable enough. Then we come to the next requirement; namely,
that the parent in question was employed in relevant employment"—
we have had an elaboration of that point, and there is an amendment on it which the noble Lord, Lord Belstead, is to move and which we shall be discussing in due course—
(but not necessarily the same relevant employment)"—
and it has to be an employment throughout a period of two years.
§ Let us suppose that the parent in question is the mother. What is required of her if it falls to her to be responsible for securing the registration of the child as a British citizen? There is a requirement that throughout the period of two years ending with the date of the birth she must have been employed in relevant employment. But, of course, a lot of the mothers concerned will not be necessarily in employment at all. They may have gone abroad merely to accompany their husbands. But if they are in relevant employment, what follows? The requirement is that on the date of birth the mother should still be in relevant employment.
§ Lord Elwyn-Jones
This is what I understand from subsection (2)(b). Is there a provision remedying that which I thought led my noble friend Lady White to think that this was the creation of a male chauvinist pig?
§ Baroness White
I never use that inelegant phrase. But if my noble and learned friend will perhaps look at subsection (4)(b) on the next page he will see that the lady is allowed 180 days. If she happens to have very bad morning sickness, or some such thing, in the first three months of her pregnancy, that apparently does not give her any excuse for leaving her employment earlier.
§ Lord Elwyn-Jones
I stand corrected. With the many paragraphs of this provision, I may perhaps be excused for having overlooked that. But this is a complexity, I submit, which has certainly aroused considerable protest from the Women's National Commission as being prejudicial and unfair to the mothers who may have to be given the responsibility of protecting the position of the child in the circumstances 1087 that are described. Surely this degree of complexity is not necessary if this legislation is to make sense. I beg to move.
§ Lord Avebury
I want to ask one question before the Minister replies to this amendment. Pursuant to what the noble Baroness, Lady Elles, said earlier on, bearing in mind the large number of people we have unemployed at the moment, would the Minister consider expanding this requirement so that the parent in question could have been either in relevant employment during the period of two years ending with the date of birth or unemployed? Because that would then enable a person to comply with the condition if, for instance, she was unemployed for a year, then was successful in finding a job and became pregnant after, say, three months, so that she could not satisfy the test of relevant employment unless the period during which she had been out of work prior to taking this job was counted towards the relevant employment.
The noble and learned Lord had notice of this point when it was raised earlier by the noble Baroness opposite, so I hope he will have had time to consider it and that, in the appalling circumstances which we face with three million people out of work in this country, he will in fact amend this provision so as to make it easier for the women who are fortunate enough to get jobs after a period of unemployment, and who then find themselves pregnant, to take advantage of that provision.
§ Lord Harmar-Nicholls
Before the noble Lord sits down, may I ask whether it is not generally accepted that if one is unemployed and is registered as unemployed then, in terms of benefits of this sort, one is looked upon as being employed?
§ Lord Mackay of Clashfern
The purpose of this provision is to set out the links by which a citizen by descent can connect himself or herself sufficiently with the United Kingdom to transmit that citizenship to his or her child. In view of the fact that the noble and learned Lord, Lord Elwyn-Jones, has moved this amendment, it might be right to remind the Committee that when this matter was considered by the Government of which he was a member and the Green Paper was issued for consultation, the view that was taken by the then Government was:The Government consider that as a general rule a new British citizenship should not be transmitted beyond the first generation born abroad, but they recognise that some circumstances might justify exceptions".Taking that as being correct, what is being attempted here is to set out circumstances which might justify exception. The exception which is here in question is the link which the employment of the child's parent gives with the United Kingdom. Someone who is a British citizen by descent living overseas, and whose work there involves him closely with the United Kingdom, is clearly representing this country's interests. Moreover, it may well be that, but for the demands of his employment, the British citizen by descent would 1088 have been living in the country at the time of the child's birth; the child would then have been born here, and would, under Clause 1(1) of the Bill have been a British citizen at birth.
Employment is therefore clearly an important factor in assessing whether a British citizen by descent has ties with this country which are sufficiently strong to justify conferring British citizenship—and the right of abode here—in his or her child. But what kind of employment? Clearly the employment must be linked with the United Kingdom in some way, and not every type of employment overseas will be. Moreover, it is necessary to specify how long the parent of the child shall have been engaged in the eligible employment, and where. In other words, there must be some degree of substance in the employment.
That is what paragraph (b)—which this amendment seeks to remove—is intended to do. It provides, first, that the British citizen parent must have been in relevant employment throughout the two years up to the date of the child's birth. Employment which is relevant employment for this purpose is defined in Clause 3(3). It covers a range of types of full time employment. All these types of employment can, broadly speaking, be said to have some inherent link with the United Kingdom.
A British citizen by descent may hold any combination of posts in these fields during the two years preceding the child's birth, and he may be employed anywhere, either overseas or in the United Kingdom, on such work during this two years period. At the time of the child's birth he must of course be employed overseas for this to be relevant at all. If he is at home and the child is born in this country, the problem does not arise.
The effect is that a British citizen by descent who has worked for a company in this country—or indeed for different companies—during most of the two years preceding the child's birth, but who is sent overseas by his firm shortly before a child is born to him overseas, would be covered. We have introduced this degree of flexibility in the Bill, following representations to us during the passage of the Bill through another place. That intention is exemplified by the amendment to which I drew attention. We believe that the flexibility will enable many people who divide their careers between posts at home and posts overseas to benefit from these provisions of the Bill.
As I have said, the citizen parent may have been in relevant employment in the United Kingdom during the two years preceding the child's birth overseas, and this period counts, provided that at the time of the child's birth he is in overseas employment. That term is defined in Clause 3(8)(a). It means employment under the terms of which the employee ordinarily works outside the United Kingdom. This employment must therefore be relevant as defined in subsection (3) throughout the two years preceding the birth overseas, and at the time of that birth it must be employment under the terms of which the employee ordinarily works overseas.
That, in outline, is what paragraph (b) seeks to do. There are various safeguards to meet particular needs.
In the subsection to which the noble and learned Lord's attention was drawn as he proceeded, there are a number of provisions dealing with particular cases. 1089 The case where the mother is the parent in question is dealt with. There are also provisions dealing with breaks in the employment in subsection (4)(a), and, generally speaking, I respectfully suggest that the general position is well covered. So far as unemployment is concerned it does not by its very nature give a connection with the United Kingdom and therefore perhaps it is not surprising that unemployment in itself is not covered.
I would suggest to your Lordships that unless the Bill is to be excessively complicated and the circumstances of every possible peradventure—such as the misadventure mentioned by the noble Baroness, Lady White—are expressly covered, the way in which to deal with rather special cases is to give the Secretary of State reasonable discretion. That is, of course, what this clause does, in subsection (5)(b); it is intended to give discretion, to cover particular cases where discretion seems to be merited.
§ Lord Avebury
Surely if a woman has been unemployed in the United Kingdom, such as in the example I described, and has been drawing unemployment benefit for one year prior to obtaining a job which takes her overseas, where she has a baby, then the one year of unemployment in the United Kingdom demonstrates a close connection with the United Kingdom? Therefore, why cannot the noble and learned Lord Advocate write into this subsection a provision that will either allow the woman to be employed in relevant employment or unemployed in the United Kingdom?
§ Lord Mackay of Clashfern
I can see that being in the United Kingdom, whether as an employed or unemployed person, is a kind of connection with the United Kingdom. That is well covered by the sort of discretion which the Secretary of State has. I was thinking of unemployment generally. I cannot think how unemployment generally, whether in the United Kingdom or elsewhere, can of itself be a connection with the United Kingdom.
§ Baroness Elles
I wonder whether my noble and learned friend the Lord Advocate would seriously reconsider this aspect of unemployment. We all know that there are nearly 3 million unemployed in this country. Surely an individual or individuals who are offered employment abroad, even for only three or four years, should not be denied the possibliity of accepting work for fear of a wife having abroad a child who will be denied the right of British citizenship? Surely that is not unreasonable? I should be most grateful if the noble and learned Lord Advocate would at least leave the door open at this stage in the progress of the Bill, to reconsider this particular aspect.
§ Lord Mackay of Clashfern
I said earlier that it was our intention to listen carefully to all that has been said in debating this Bill. This is a difficult matter to cover adequately in every detail, but we shall carefully consider what has been said on this subject and we will see whether there can be any flexibility for altering the rule. I cannot say any more than that we shall consider the situation.
§ Lord Boyd-Carpenter
When considering this matter would my noble and learned friend examine in particular subsection (4)(a) to which he has rightly drawn our attention as being a qualification of subsection (2)(b)? Subsection (4)(a) makes mention of,two periods of relevant employment are separated by an interval of not more than 90 days".That would seem to suggest that where there is an interval of more than 90 days in, say, unemployment, then the conditions are not satisfied and the application fails.
§ Lord Mackay of Clashfern
The idea is that the interval is restricted to 90 days, for whatever reason. That is the general rule. Again, the matter is capable of being covered by discretion, but that is certainly the intention of the principal provision.
§ Lord Boyd-Carpenter
I am sorry if I did not make my point too clearly. Where 90 days is laid down in the statute, unless there is some explicit indication that the statutory 90 days limit might be waived, might it not be held that there was no discretion because the statute had very clearly laid down a 90 days limit?
§ Lord Mishcon
How very right my noble friend was when he said in moving this amendment that we are walking into ever greater complexities than even anyone who loves a complex Bill would want. I want only to emphasise some points which have already been made in order that, when he comes to consider this matter, the noble and learned Lord will know what I believe to be the almost universal view of your Lordships' Committee.
The first thing in the world this Committee would want to do, I am sure—I am borrowing something said by the noble Baroness opposite, as I readily acknowledge—is to see that anybody who has received unemployment benefit in this country is discouraged from thinking that the receipt of that unemployment benefit has robbed him of a connection with the United Kingdom. Indeed, one of the remarks of the noble and learned Lord earlier might have been seen by somebody to imply that the connection was lost if he received unemployment benefit.
The second thing is that we would all want to encourage a person of that kind, who has been offered employment overseas, to take it. The third point, which has not yet been covered properly, is this. How is the poor person concerned to know what his position is going to be if he accepts that employment? Quite rightly, there is a discretion given under the Bill. That is perfectly correct, but is there going to be an officer deputed, with great sagacity, experience and the mercy with which the noble Lord, Lord Renton, seems to think that Home Office officials are endowed from birth?
§ Lord Mishcon
Is there a special official who is going to be assigned to tell innocent inquirers who do not know what their rights are, "Don't worry; this is the sort of case where we have had clear instructions 1091 from the Home Secretary, and you will be all right"?—because if this does not happen, and it is not laid down, we are not really covering the kind of situation that we are trying to cover.
Fourthly, and only so that all these things are properly considered, arising out of my noble and learned friend's introduction of this amendment, could I borrow the point so correctly made by the noble Lord, Lord Boyd-Carpenter; that there is no discretion written into this Bill as regards the 90-day period. The only discretion written into this Bill, with great respect to the noble and learned Lord, is in regard to the total period of two years. The 90 days, as this Bill is now drawn, is a definite period in respect of which there is no discretion. I cannot speak for my noble and learned friend, although I love to try to do so 1092 occasionally, but let me just say this—subject to what he says on this, because it is his amendment—if the noble and learned Lord undertakes to consider these four points that worry all of us, then I feel that by Report stage we may be saved a further debate on this matter.
§ Lord Elwyn-Jones
A good deal of collective wisdom has now been generated on this obviously very difficult part of the Bill, and I am delighted to hear the noble and learned Lord the Lord Advocate. He has not bowed before the storm—he never does and I admire him for that—but, in view of his assurance that he will now give the most careful thought to this matter, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1093
The Deputy Chairman of Committees
Before calling Amendment No. 40, I should remind the Committee that if this amendment is agreed to, I cannot call Amendments Nos. 41, 42 and 43.
§ 9.49 p.m.
Lord Spens moved Amendment No. 40:
Page 3, leave out lines 23 to 30.
§ The noble Lord said: I should like your Lordships to turn your minds now towards what I believe to be the fundamental failing of this clause; the very restricted nature of it. I think it is something which is very serious and ought to be threshed out. At the moment the clause is limited to persons in employment. There is nothing here about self-employment; there is nothing about people who may not be in any employment at all but who are not unemployed, such as authors; there is nothing about small businesses, which are not incorporated but which are concerned with export and import business—or, say, the explorer and so forth.
§ I should like to give your Lordships something to contemplate. Two years ago, I introduced a debate on unemployment. I said then that there might be 3 million unemployed by 1984. No one then believed me, and yet it is happening. What will happen to employment in the future? I do not believe anyone knows. We have the microchip and there are all the other technological developments which are taking place. We have 24 million jobs now, but by 1990 the number of jobs may have fallen to 15 million or even less. Why do we hitch all this clause on to employment? Surely we must make it wider than employment and use some other term. I put down a series of amendments to try to cover this point, and with Amendment No. 40 I want to couple Nos. 47, 58 and 59. Their effect would be to take out paragraphs (b) and (c) from subsection (2), and to remove subsections (3), (4) and (5) from this clause. Those are the subsections which refer to employment. If we take them out, we get a situation where the basis is not employment. I shall not speak to my other amendments at this stage, because they might produce an alternative, but I want to suggest that we must go much wider than employment. In fact, I do not believe that employment should come into this Bill at all. I beg to move.
§ Lord Renton
I do not think that my noble friends on the Front Bench could possibly accept the amendment of the noble Lord, Lord Spens, or any of those that go with it, more especially in view of the fact that the Government have already undertaken to consider certain matters which are covered by those amendments. But what I should like to say is that I think the noble Lord, Lord Spens, has done a good service by drawing attention yet again to the fact that this clause contains so many detailed provisions. Whenever we try too hard on legislation, we get into the kind of troubles that we have had today.
I should have thought that it would be much better—and I do not withdraw anything that I said about the officials of the Home Office, in spite of the replies that have been made to me—either to leave a very wide 1094 discretion to the Home Secretary, which, in any event, can be used under subsection (1) of this clause, or to legislate, if we must tie him down as we attempt to do in subsection (2) and onwards, in a much more simple way, setting out principles rather than circumstances. The circumstances are going to be infinitely variable and we have had many of them mentioned already this evening. I hope that my noble friends, in giving further consideration to the way in which this clause might be improved and amended, will bear in mind that it is better not to try to cover hypothetical circumstances in too much detail.
§ Lord Belstead
The noble Lord, Lord Spens, has made it clear that he disapproves of the principle of Clause 3. I have to say that we are doubtful whether an intention to maintain a close connection is by itself an objective criterion sufficient to justify the conferring of citizenship, because that is what the noble Lord, Lord Spens, wishes to do in his amendment. This is particularly so where, genuine though the intention to maintain a close connection with this country may be, the intention is not at that particular moment being put into effect. The explorer whom the noble Lord had in mind may be on the other side of the world and may have been there for years and years. The author may be on the other side of the world and may never have any intention of ever coming back again. Let us recall that the people whom we are talking about in Clause 3 are not those who have been born in this country—they will have no problem over transmitting their citizenship immediately to their children. We are talking about those whose parents were born overseas and now we are concerned about the children who were born overseas.
The provisions regarding relevant employment which the noble Lord seeks to delete at least provide an objective criterion which every applicant must meet, and ensure that, through employment at least, there must be some connection with the United Kingdom. Normally the employment itself will be sufficient to indicate that the applicant is maintaining links with this country, but there may be cases where the employment concerned, although it has formal links with the United Kingdom, does not provide any real, close connections for the employee with this country.
Since we are approaching the point, may I say that we see the close connections requirement in Clause 3(2)(d) as being a means of ensuring that sham cases are not used as a justification. For example, I suppose it is conceivable that a "paper" company might be set up simply to enable citizens overseas to pass on citizenship to their children. This is the sort of loophole which would be stopped by the close connection requirement in Clause 3(2)(d). But we do not see it as a satisfactory way by itself without having the employment criterion of selecting those cases where it is appropriate for citizenship to be passed on for a further generation by British citizens by descent.
For those reasons, I do not agree with the noble Lord's amendment. However, may I assure the noble Lord that I do understand, along with many Members of your Lordships' House, the long traditions that we in this country have of people who are proud to be 1095 British when they are living abroad. However, in this Bill we are endeavouring to tie British citizenship for the first time to people who have close and continuing connections with the country, because that citizenship will give, automatically and without question, the right to abode.
If we are to go outside the employment criterion, which I admit is not perfect, then I think one has to try to find any other criteria which could be considered to be really practicable. With regret, for the reasons which I have given, I think the one which simply relies on just saying that somebody has got a close connection, which is the effect of the noble Lord's amendment, is one which alone would be too vague to write into statute.
§ Lord Elystan-Morgan
May I respectfully suggest that there are two fundamental defects? I refer not merely to the subject matter of this amendment; I trust that I shall be allowed to deal with the whole issue in a slightly wider way. One of those fundamental defects is the employment test. It is narrow and rigid and, as I know the Minister will agree, in many cases it will be irrelevant to the situation in hand. The other fundamental defect is the test of "a close connection" which is the wording of paragraphs (c) and (d) of Clause 3(2). It seems to me that the words "a close connection" are extremely vague and uncertain and that they constitute a treasury of judicial controversy for many, many years to come.
I would ask this question of the noble Lord, who may be able to answer it with the assistance of his officials or his noble and learned friend the Lord Advocate. Has that formula ever been used before on any occasion in any statute, social, criminal or fiscal? I would guess not, and that again, in my respectful submission, complicates the issue very greatly. It is not defined in the definition clause. I suspect it has never been defined in law. It opens a vista of extremely embarrassing and wearisome possibilities.
§ Viscount Montgomery of Alamein
May I follow my noble friend Lord Renton, supporting his suggestion about the problems of Britons living abroad? We have been dealing with this point earlier, I know, but it is a very real question. If I may take issue with my noble friend Lord Belstead on the matter of Britons being born abroad, the fact that they are so born does not in any way diminish their Britishness; in fact it may often enhance it, because they feel, for reasons of their descent, that they have great ties with this country. Several noble Lords have been pressing the point that it is desirable for our trade to continue to encourage Britons to live abroad, and indeed this was the main thrust of Lord Boyd-Carpenter's suggestions earlier this afternoon.
When I intervened earlier in the debate initiated by my noble friend Lord Boyd-Carpenter, I asked the noble and learned Lord the Lord Advocate if he would explain a little more clearly the differences between Clauses 2 and 3. We received no reply. I posed a question concerning the quality of the citizenship 1096 and whether the quality that obtained as between Clauses 2 and 3 was in any way varied by the fact of registration. I have the impression that he implied that registration, with the issue of the relevant certificate, brings the quality of the citizenship as between the clauses into line. We have not come back to that matter.
I am wondering whether this is a suitable point for me to ask my noble friend again to clarify the issue, because we are concerned with making sure that Britons who live abroad are not in any way deprived of their rights of citizenship. Britons living abroad seem to me to be deprived of many other rights; for instance, although it is not relevant at this moment, they are not able to vote in elections, whereas citizens of many other countries when living abroad are. But that is not what we are discussing tonight. It is a question of not in any way further diminishing the rights of Britons abroad, forfeiting their Britishness by virtue of being born overseas. I hope my noble friend will be able to clarify that there is no weakening of this as between Clauses 2 and 3, and indeed possibly the issue of the certificate strengthens it. But it was never made quite clear by the noble and learned Lord the Lord Advocate.
§ Lord Avebury
I am glad the noble Lord has put down this amendment because it enables us to probe a little further what is meant by "close connection". As the noble Lord, Lord Elystan-Morgan, has pointed out, the phrase is riddled with ambiguity and doubt. When accepting jobs overseas people simply will not know, unless a much more comprehensive explanation is given by the Minister at this stage, whether they are going to be safe in taking the employment abroad in the full knowledge that they will be able to transmit citizenship.
I always find it easier to think in terms of concrete examples rather than abstract principles. Therefore I want to pose some cases to the Minister and I want him to tell me whether they comply with condition (c),that the nature or terms and conditions of that employment involved close connection with the United Kingdom".The first example that I want to give relates to a very well known multinational—Rio Tinto Zinc. Rio Tinto Zinc, as the noble Lord, Lord Belstead, is aware, has mining operations all over the world and some of those operations are conducted by companies registered in the overseas countries which are not wholly owned subsidiaries of Rio Tinto Zinc. In fact, the shareholding by RTZ may be a fairly small minority.
Let us suppose that a person is offered a job by Comalco—a company known to the noble Baroness who spoke earlier from the Back-Benches opposite—which is a company registered in Australia in which RTZ owns less than 50 per cent. of the capital. The job is offered to the person in the United Kingdom through RTZ and, therefore, it is relevant employment within the meaning of Clause 3(3)(b). It has been arranged by RTZ United Kingdom with their associate company Comalco in Australia. So far so good. But how does the employee then satisfy the conditions in Clause 3(2)(c)? What is the close connection which 1097 employment with Comalco demonstrates with the United Kingdom? Perhaps the noble Lord will be good enough to explain whether this particular job complies with Clause 3.
The other example that I want to give relates to the many people who are employed in work overseas through consultancies in the United Kingdom, and by that I mean through selection consultancies. That is a question the answer to which I would respectfully submit to the Minister will be looked at with enormous interest by the companies engaged in this work—and very useful work it is, adding to the invisibles earned by this country through the expert services British companies offer worldwide in the selection of professional manpower.
Someone applies for a job in, let us say, Africa through a company which is registered in the United Kingdom and whose job it is to provide professional engineers to overseas employers. So again that arrangement is made by a company or association established in the United Kingdom—that is, the management selection company in the United Kingdom —but the employer overseas may be, for instance, the national Government of the country concerned. They may wish to employ a British engineer. They come to the United Kingdom because they know that there are many fine engineers here. They employ a firm of management selection consultants and they find somebody who is a British citizen by descent to go out to Tanzania to work on railways or bridges.
So again I want to ask the noble Lord whether work of that sort, which is certainly relevant employment within the meaning of Clause 3(3), complies with the condition of Clause 3(2)(c)? That seems to be the real stumbling block, because it is so vague and indeterminate that people will never know in advance whether they satisfy it unless again—and here I come back to a point I made earlier on the certain knowledge that people will require to have in advance—the Minister would agree to write into the Bill at some point a certificate saying that employment of a type which a person may be contemplating does, in fact, comply with the conditions of Clause 3.
I should like to ask the Minister—and this is a point with which I should be most grateful if the Minister would deal when he comes to reply—whether he can assure us that when people are looking at overseas employment (and the two examples that I have quoted might be fairly typical) they will be able to come to a Minister and get an assurance that if they take that job they are within the terms of Clause 3. I think that some kind of assurance like that is really necessary if an enormous number of people are not to be put off taking jobs overseas through the doubt which is instilled by the complexity of this clause, and also if the companies which are engaged in recruitment and the provision of skilled and professional manpower overseas are not to have their work severely disrupted by the doubts raised by Clause 3.
§ Baroness Trumpington
In the last amendment the noble and learned Lord, Lord Elwyn-Jones, quoted from the Women's National Commission. I have since rushed out and got my brief from the Women's National Commission which is dated 6th May. If the noble 1098 and learned Lord had been entirely fair he would have read the first paragraph, headed "General", which said:We agree that since 1948 Britain's relationship with the rest of the world and many prevailing ideas in society have substantially changed and a Nationality Law is now desirable. We are convinced that such a law must express our respect for past relationships and obligations as well as our concern for the future development of our society, based on equality and justice".Turning to the paragraph dealing with Clause 3(2) in the brief, it says:We welcome the Government's decision to reconsider this clause".Indeed, as I see it, the clause has been amended since this was written. However, dealing with paragraph (d) of the clause they say:… intention is extremely difficult to prove, particularly after death. We believe that this paragraph will also operate unfairly against married women, who are traditionally presumed to have the same intentions as their husbands. Accordingly, in a mixed marriage it might be simple for the father to prove his intention to return to his native country but it would be extremely difficult to prove that the deceased mother had the intention to return to her own country and not to her husband's country".I merely raise that in order to be totally fair to the Women's National Commission, and would again point out that this report was written before the Bill went through another place.
§ Lord Elwyn-Jones
I hope that I was not guity of any misleading of the content of this document. My only regret is that I was misled by it so horribly.
§ Lord Belstead
The noble Lord, Lord Elystan-Morgan, asked me whether the expression "close connection" had been used before in legislation. The answer which I have for the noble Lord is that it is used in Section 3(2)(c) of the British Nationality Act 1958, Section 12(6) of the British Nationality Act 1948, and in Section 5A(5) of the same Act as it was inserted by the Immigration Act 1971.
Perhaps I could add a little extra. I think that there is an important point of principle here. My noble and learned friend the Lord Advocate on a previous amendment reminded noble Lords opposite that it had been put as being the Government's view in the 1977 Green Paper—not a matter just for discussion—that citizenship should not be transmitted beyond the first generation born overseas; when you have the parents overseas and then you have to see what is happening when the next generation is born overseas.
I assure noble Lords that I am not making a political point of this. The reason I raise it is that if the Government felt that, as a matter pf principle, this seemed to be along the right lines—and, all right, they then did not carry that into legislation, but then the present Government have picked up this matter and have decided to put it into legislation—those who originally thought of it (including the present Government who wish to put it in the Bill) somehow have to think how the exceptions will be dealt with. If one is to have the principle, one must decide how the exceptions are to be dealt with.
The whole case which I endeavoured to make originally on the amendment of the noble Lord, Lord Spens, was that although I realise that the employment criterion is not perfect, it is at least a criterion which is 1099 understandable and which, I think, will stand up; whereas if you take the rug away, remove the employment criterion and leave, as this amendment would, just the criterion of a close connection, it would be beyond human ingenuity to decide on what grounds exactly one will have that close connection.
My reply to Lord Avebury's point is that when the noble Lord asks me many times how are the Government going to define "close connection" in practice if this Bill beomes law, the answer is that there will be cross-references. The cases will be looked at on the cross-reference of the relevant employment together with the close conneltion of that employment, and the close connection incidentally of the person with the United Kingdom.
The other point to which I must reply, to which my noble and learned friend the Lord Advcate did reply, is the point put by the noble Viscount, Lord Montgomery. Under Clause 3(2) citizenship will be citizenship by descent, whereas in Clause 2, which the noble Viscount specifically asked me about, the citizenship which will be conferred will be by birth. In case the noble Viscount jumps down my throat and says, "This is wholly discriminatory", may I make the point that if my noble friend looks elsewhere in Clause 3 he will observe that great care has been taken that where somebody can be seen to be very closely connected again with this country, in this country again maybe under, for instance, Clause 3(6) where the child will have actually returned to the country, then the citizenship will be by birth. That is by cross-reference with Clause 13. The answer to my noble friend's question is that the citizenship in Clause 3(2) is by descent, and the citizenship conferred in Clause 2 is by birth.
§ Lord Elwyn-Jones
I wonder whether I may be permitted to return to one point. I think I owe an apology if I referred to the fact that I had been misled by the document. The truth is that I misled myself—not that I was misled by the noble Baroness. I should have read it more carefully to appreciate that since the report was made the Government made some relevant changes. Indeed, in the paragraph which made such an impression on me, they said:We welcome the Government's decision to reconsider this clause",but I regret to say that I did not note that the Government had done so. They have done so in the reference that was made earlier. My apologies are due to the women's organisations, to whom I owe so much.
§ Lord Avebury
I do not want to prolong these proceedings, but I did put two quite specific examples to the Minister and I asked whether these people, if they went overseas, could satisfy the terms of the Bill.
§ 10.17 p.m.
§ Lord Belstead
I apologise to the noble Lord. I am going to make a golden rule throughout this Bill: I shall not answer any specific cases at all, whoever 1100 they come from, particularly not from the noble Lord, Lord Avebury.
§ Lord Avebury
It is all very well to be frivolous, but somebody has to interpret. There are going to be individual people faced with individual job opportunities, and they will have to make up their minds whether, if they go overseas, their children are going to comply with these conditions in the Bill. If the Minister is not going to say anything on the record, how are people to know? I asked him another question. I said, would they be able to apply to the Secretary of State or to some official and be able to get a certificate in advance? If they went to work for Comalco, the employment having been arranged by RTZ, or if through a British recruitment consultant an engineer were to go to work for the Government of Tanzania, would he be able to get from the Secretary of State, or from some official, a certificate saying that this employment satisfied the close connection requirement of Clause 3? Will he be able to get that, or will he go abroad without having the faintest idea whether his children are going to be British citizens or not?
§ Lord Belstead
I apologise to the noble Lord. It is perfectly fair for the noble Lord to chide me with that. The question of approaching the Home Office—it will be the Home Office—to find out in advance is quite an understandable question. I hope the noble Lord also will understand when I say that obviously all the practicalities have not been worked out, but at the same time it would be wholly unreasonable if I did not say on behalf of the Government that people will want to clear their lines before they go abroad, and obviously we shall have to think carefully about the firm guidance which can be given to people when they apply to find out. I do not think at this moment I can go further.
So far as specific cases are concerned, I was saying what I have just said with some forethought. If specific cases are put—these are cases which the noble Lord has put; for instance, the noble Lord put two or three cases to my noble and learned friend the Lord Advocate—and if the noble Lord really expects replies to those, then I am afraid the noble Lord is asking for too much. It means that Ministers on their feet at the Box are being asked to give what are supposed to be considered opinions which could then be taken as being Government policy. It would be unfair, not to the Minister but to the people concerned, if it were found afterwards that the Minister had made a mistake. These are matters which should be dealt with properly, which means through the proper channels, and I am sure the noble Lord, who is assiduous in using the proper channels, understands what I mean.
§ Lord Elystan-Morgan
I wish to express my thanks to the noble Lord for the computer-like speed and accuracy with which he replied to my question about the words "close connection". I should have known better. One should have remembered, I suppose, the words of that greatest of all legal historians, F. W. Maitland, who, speaking of the parliamentary draftsman of the Middle Ages, said there was no plethora of words in the Middle Ages and the draftsman had to use the scanty currency that was available. Apparently, the draftsman of 1981 is no different from 1101 the draftsman of the 14th century. However, I would ask the Minister—if he cannot reply now then perhaps he will do so later during the Committee stage—whether in fact those words have ever been judicially defined.
§ Lord Harmar-Nicholls
My noble friend has been very effective in the reply he has given to this interesting debate, but he seemed to close the door completely, whereas the Lord Advocate on the previous amendment left the door open, at any rate to the point where the matter would be looked at again, although he made it clear that the chances of finding something different were remote. In my view, this amendment justifies the same treatment. Tying the provision so completely to employment, as it now is, and ignoring self-employment and all the categories which the noble Lord, Lord Spens, mentioned, justifies another look at the whole matter. On the few occasions when I have intervened in this Committee stage I have asked the Committee to support the discretion given to the Secretary of State, because there will be some very grey areas where somebody will need discretion to sort it out. In this clause it looks as though discretion is being taken from him because the words are so specific, and when we come to the provision dealing with 90 days, that removes a discretion which I had hoped the Secretary of State would be left free to use to form a judgment.
My view is that precisely the strength of argument which resulted in the Lord Advocate saying he would look at the last amendment again justifies my noble friend Lord Belstead adopting at least similar treatment for this one. Whether or not other words can be found, one cannot say. We realise it is a long time since the Bill was first envisaged in another place and my noble friend may feel that there are not other words to replace "employment" and all that goes with it. But as we are nearing the end of these proceedings and the measure will become an Act, the categories set out by the noble Lord, Lord Spens, deserve looking at again to see whether, even at this last hour, an alternative set of words can be found.
§ Lord Belstead
I am not sure whether we are in the last hour or hours of discussion on the Bill, as my noble friend Lord Harmar-Nicholls suggests, but I wish to impress on him that if we are talking about self-employment, then that is taking the discussion rather further than that with which my noble and learned friend the Lord Advocate was dealing; it is a very important matter and we shall come to it later, particularly on Amendment No. 42.
Before we come to it, I should like to say two things. The first—and I am sure my noble friend will understand, as I am speaking on the same side of the Committee, there is no ideological predilection in these matters against people who are self-employed. I would dearly like to see some way in which the self-employed could be brought as a criterion within the scope of the Bill. The second point is that I do not see how one is to do it, and when we come to the amendments on the self-employed I shall throw the ball back and tell noble Lords that they must help. If they want to bring the self-employed within the scope 1102 of the Bill we must find ways of doing it, but, at the moment, it is difficult to see that such ways exist.
We have had a very interesting debate on this, and I am most grateful to the noble Lord, Lord Harmar-Nicholls, for his support. I am disappointed with the Minister in that he funked the suggestion which I put to him, that within 10 years employment may not be so important a situation as it is today. No one knows that. He spoke about having the rug pulled out from under his feet. That might be what is going to happen within the next 10 years. So, in a Bill which I would suppose is to last us for 20 to 30 years, why tie yourself to such a detailed narrow definition as employment. However, I am not going to divide the Committee on this tonight, but I hope the Minister will think about it again. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 41 not moved.]
§ 10.28 p.m.
Lord Spens moved Amendment No. 42:
Page 3, line 23, after ("was") insert ("either in an occupation which the Secretary of State is satisfied is of benefit to the United Kingdom or")
§ The noble Lord said: This is the other suggestion which I decided to make in order to try to broaden the situation from just being tied to employment, and with this I should like to discuss also Amendment No. 45. It is to suggest that in addition to employment the word "occupation" should be used, because I believe that is the word which will be more used in the future and we really ought to be thinking about persons' occupations rather than persons' employment. I beg to move.
§ Lord Belstead
The basic purpose of this amendment is to add an entitlement to pass on citizenship for British citizens in an occupation which the Secretary of State is satisfied is of benefit to the United Kingdom, and I am grateful to the noble Lord for putting the point so succinctly. I genuinely sympathise with the noble Lord's brief argument because for the first time on this clause this raises the claims of the self-employed and, indeed I think it could be argued, the claims of partners in overseas firms. It is possible that a way through the difficulties may be found so far as partners in overseas firms are concerned, but these are for amendments which will come later and we must wait to debate those in a few minutes. The fact is that self-employed persons are a little different. They are of course wholly independent of employers and it is their own choice which takes them overseas.
The problem which then arises is that it really is exceedingly difficult to decide what should be the criterion for saying that a person who is self-employed should have special rights of transmission of citizenship. The criterion that the noble Lord, Lord Spens, has chosen in the amendment might leave it open for the Secretary of State to argue that an occupation involving expensive professional training and skills was beneficial to the United Kingdom when exercised in the United Kingdom, or on behalf of the United Kingdom, but was quite the opposite when engaged in for the benefit 1103 of United Kingdom competitors. Such an argument might be applied to the legal and accountancy professions. For example I wonder what one would say about medicine in this regard? What would be the position of doctors who go abroad? Once more I emphasise that we are not talking about the doctor who is born here, whose children are of course British citizens. Indeed, the citizenship can be derived from the wife. Do not let us forget that all the time the citizenship can be derived either way.
A family might go abroad and continue to live abroad for years and years. Perhaps they are a family of doctors, doing very well, and being of great service to the community in San Franciso, Hawaii, or somewhere else abroad, with no intention of ever coming home. If I may say so to the noble Lord, here is the difficulty. How does the Secretary of State decide whether or not the occupation is, as the amendment provides,of benefit to the United Kingdom"?It is for that simple reason, not because I wish to be unfriendly or unhelpful to the general thrust of the noble Lord's proposals, that I feel that I cannot accept the amendment. I absolutely understand, and have great sympathy with, what the noble Lord is trying to do, but I do not think that as worded his amendment will stand up in legislation.
§ Lord Harmar-Nicholls
I think that my noble friend is on the wrong track here. I should have thought that at the time that the decision was to be made the Secretary of State would be in a better position than we are now to decide whether the occupation was of benefit to the United Kingdom. Here we are years ahead of any situation that is likely to arise. I have much sympathy with the amendment. This subject is quite intricate and I should like to congratulate the Government on having the courage to bring in the Bill in the first place. Many previous Governments have run away from it; they have put it under a rug. The Government are entitled to all the credit for having the courage and the tenacity to deal with this very important and essential matter. We know that the reason why previous Governments did not deal with this subject is because it is filled with marginal problems and that difficult and intricate points might well arise. They sound hypothetical now, but they will be quite real when decisions have to be made.
It is for those reasons that I believe that we must give discretion to the Secretary of State of the day to decide such matters in the knowledge of the situation at the time. I am not saying that the words of the amendment would necessarily convey the same meaning as the noble Lord, Lord Spens, has in mind. But I consider that the word "occupation" is not the relevant word in the amendment. The important point is that the Secretary of State has to be satisfied that the occupationis of benefit to the United Kingdom".Regardless of whether the people involved live in San Francisco or anywhere else abroad, if they have the basis of a claim, and they are sufficiently interested to retain their citizenship, the Secretary of State would be in a position to take account of all the considerations. 1104 That is one of the benefits of leaving the matter to the Secretary of State. Other noble Lords have said that such a provision has many dangers, that there ought to be the right of appeal against some decisions. One recognises that point, too. But when it comes to wanting to be fair to the self-employed and others in similar categories, what is proposed here is one means by which to deal with the matter. It is more likely to be dealt with greater efficiency by a Secretary of State at the time rather, knowing all the circumstances, than by us, trying to anticipate what could prove to be a different world.
I hope that, as with the previous amendment, this is not the last thought that the Government will give to it. They are doing such a splendid job, showing great courage. I hope that they will not be tied so specifically to these words, which are contrary to the instinctive feelings of so many noble Lords on both sides of the Committee.
§ Lord Belstead
All I would add, if I may, before the noble Lord, Lord Spens, decides on his amendment, is what I think I said to my noble friend Lord Harmar-Nicholls on a previous amendment. There is a double responsibility here. Of course, as my noble and learned friend the Lord Advocate has said, we are listening extremely carefully to what is being said on Clauses 2 and 3—we have no option but to do so; and this exactly shows the importance of your Lordships' House and Committee. But, having said that, I think there is a responsibility upon noble Lords, if I may say so with respect, to try also to think how their wording might be refined so that it would be possible to put it into legislation. This particular attempt by the noble Lord, Lord Spens, although (I say for the second time) it has my sympathy, I really do not think will do. It raises a criterion which I do not think could possibly stand up, as it is worded in this particular amendment, without causing doubt and anomalies all along the line. It is for that practical reason that I am resisting this particular amendment.
§ Lord Mishcon
Just before the noble Lord, Lord Spens, speaks, may I say that I think the invitation which the noble Lord the Minister has issued, that all of us ought to try to help him and the Government in regard to this important issue, is a very correct invitation, and I am sure we shall all accept it. The Opposition is always helpful, and I am sure we shall manage to produce something for the Government. But, being serious for a moment, one of the dreadful things about the loophole of the self-employed is that many of us who are in practice and who act for those who are in the entertainment industry, and even some artists, and so on, know perfectly well that they have the habit, for certain reasons which are not beyond the comprehension of noble Lords, to have a company which employs them.
They are really, of course, self-employed; and it would be absolutely dreadful if people were able to take advantage of provisions in this Bill, saying that they are employed by a company, which is really their company and which they control, and that therefore they come within the purview of the Bill, whereas those who are not able to take advantage of that device are left stranded because they are self-employed. I am 1105 merely emphasising the point of the noble Lord the Minister that we have got to get over this somehow, and we will help him out.
I am most grateful to the noble Lord, Lord Mishcon, for what he has just said, and also to the noble Lord, Lord Belstead, because he has kept this subject open. I will certainly take it away, and I hope that I shall get assistance from all sides of your Lordships' House in trying to devise some formula which will meet the wishes of the Government. I beg leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.
§ 10.38 p.m.
Lord Geddes moved Amendment No. 43:
Page 3, line 23, after ("was") insert ("self-employed or").
§ The noble Lord said: With the well-known wisdom of hindsight, I think a great deal of discussion on this particular amendment, and indeed on the amendment of my noble friend Lord Drumalbyn, who has raised effectively the same point in Amendment No. 48—and perhaps he would like to speak to this amendment in lieu of his own, or as well as his own—has already been covered. The point was I think first raised, certainly in your Lordships' House, by my noble friend Lady Trumpington at Second Reading. I should like to emphasise very briefly that as drafted the Bill makes no provision for the child born overseas one of whose parents is self-employed and British by descent. It may well be that the position in the Bill in which I have tabled this amendment is wrong, and I shall be perfectly happy to withdraw the amendment subject to any further remarks that my noble friend the Minister may make in trying to cover this blank in the present drafting of the Bill. I beg to move.
§ Lord Drumalbyn
If I may speak on my amendment and have it discussed at the same time as my noble friend's amendment, I do not know what view my noble friend takes of Amendment No. 48, which is spelt out in a little more detail than the amendment of the noble Lord, Lord Geddes, but may I refer my noble friend back to something he said? It is difficult on any particular issue, take one instance of one doctor in San Francisco, to say: How are we going to prove that what he is doing is of benefit to the United Kingdom? The fact is that collectively self-employed people of this kind, doctors, consultants, engineering consultants, professors and all the rest of it, in their own way make an impact; but collectively they make a very considerable impact in favour of Great Britain.
This is what has to be considered. Therefore you have to draw the legislation in such a way that they can be included. Materially also it is important. If you have British doctors you probably have British medicines and British hospital devices of one kind and another. The noble Lord, Lord Avebury, made the very sound point about consultants. Consultants bring in an immense amount of business. They do not employ anybody but they bring to this country an immense amount of business. I need not elaborate because it is quite clear. This is what gives the real benefit to this country.
1106 I do not think that it can be said that the self-employed are not bringing a benefit to this country, whereas the employed are. I do not see that the employed have any monopoly of welldoing so far as this is concerned. I hope that the self-employed will also be given the same facilities as the employed are so far as preserving the nationality of their children is concerned.
§ Baroness Trumpington
It is indeed true that I brought up this matter on Second Reading. I did it in the form of a question. I was not really thinking in such high terms as professional people such as doctors, although the case is entirely similar. I was thinking in terms of plain business, giving as an example the supposition that a pilot was declared redundant. What is to stop him from opening a charter service in a foreign country but be based in this country, from which in turn a new airline might arise which would do great good for this country in general? That is an example I should like to give. That is one of the reasons why I brought it up on Second Reading.
§ Lord Belstead
The reason why my noble friend Lady Trumpington has had to wait for so many days for an answer to the very perceptive question which she asked on Second Reading is because the question is such a difficult one to answer. It is demonstrated by not only the amendment which we are actually considering, Amendment No. 43, but also Amendment No. 48. They approach the matter from completely different directions. My noble friend Lord Geddes simply says that self-employment will do. I am sure my noble friend moved the amendment in order to give us a good chance to thresh this question out.
This gives me the opportunity to cross the "t" and dot the "i" of something I said on the previous amendment. I have genuinely asked for the help of the Committee in trying to find a way through the impasse. I have to make it clear that the Government, in giving serious and close concern to the problems of the self-employed, have not yet been able to find a way through the problem so far as this Bill is concerned. It would be wholly wrong of me not to impress that upon the Committee. We have genuinely found it to be something that we cannot translate into this piece of legislation.
The second amendment approaches the problem from a wholly different point of view. My noble friend is characteristically very specific in his amendment. It says that if people are in employment which would be designated by the Secretary of State, then surely that would do. Here again we find a difficulty. It is because once a profession had been designated all members of it would expect—and would largely obtain—access to the entitlement, if they were British citizens by descent, to pass on by registration their citizenship to their children born overseas. In other words, the Government would not be expected to look further in Clause 3 once designation had occurred; everyone who was a member of that particular profession would say that they ought always to be able to transmit their citizenship indefinitely. There is that particular problem with my noble friend's amendment, Amendment No. 48.
1107 I hope I am not again sounding over-suspicious, but in considering these amendments on the self-employed do let us bear in mind that there is obviously a danger if we try to write something into the legislation without being extremely careful that it would not enable someone simply to say as they left this country, "Incidentally, I have become self-employed and I demand all the rights of transmission of citizenship." This is a very serious matter. It genuinely grieves me to have to rebuff these particular amendments, but at the moment the Government have not been able to find a way through this particular difficulty.
§ Lord Boyd-Carpenter
I believe my noble friend realises what a very serious criticism he has just made of the Bill and of the structure of the Bill. The self-employed overseas perform very important functions indeed. At this hour I will not reiterate them because they have already been mentioned several times today. The self-employed overseas perform major services for this country in connection with overseas developments, professional services and the rest. For the Minister to come forward at this stage, having taken the Bill through one House, and say that because of the general scheme of the Bill it is not possible to make any provision for these people at all is really one of the most serious criticisms of the Bill that I have heard during our debates. I should like to have from my noble friend the Minister a clear indication of his determination to do something for these people.
My noble friend once again gave an indication of the Government's nervousness about possible abuse. That there will be some clever people who will find their way through any piece of legislation is the experience of us all. That is not sufficient reason for depriving of their rights a much larger number of honourable, distinguished and responsible people who care for this country and who want their children to have British citizenship. If the Government cannot find a solution within the framework of the Bill then some of us will think, "So much the worse for the framework of the Bill."
§ Lord Belstead
I think it is important that I should add that there are in Clause 3 avenues into citizenship for people who have not been able to meet the relevant employment criteria. One of those avenues has been mentioned this evening. It is in Clause 3(6), where people return to the United Kingdom and where, by right, by birth, the children have citizenship conferred upon them. There is the other very familiar provision in Clause 3(1), which is a repeat of the 1948 provision for the discretionary registration by the Secretary of State.
My noble friend has queried the whole intention of the Bill. At the end of a long day let us just remember that what we are trying to do is to put legislation in place of what at the moment is the most extraordinary hotchpotch. It is that if one is in a Commonwealth country one cannot transmit one's citizenship at all beyond the first generation born overseas. And if you are in a foreign country, although of course there is consular registration, it is no good thinking that your children can have the right of abode back here in the second generation born overseas in a foreign country 1108 —that is out under the 1948 Act. Therefore, the structure we are trying to replace is really not very admirable and has led to misunderstandings and troubles which in turn have given the Government the determination, which my noble friend Lord Harmar-Nicholls was good enough to say was admirable, to try to put a bit of modern legislation on the statute book. I repeat again; I promise my noble friend Lord Boyd-Carpenter that we are taking very seriously all that has been said on Clauses 2 and 3, including what has been said on this last amendment. I hope I have indicated fairly what some of the problems are on this particular aspect of it.
§ Lord Tordoff
I wonder whether the Government are not giving too low a priority to this. It seems to me to be revealed in a comment of the noble Minister on the last amendment, when he said it is their own wish that they should go abroad. That seems to me to reveal an attitude of mind on the part of the Government which is totally wrong. It came out slightly on the amendments to Clause 2, when the noble Lord, Lord Boyd-Carpenter, was moving his amendment. It may well be their wish, but it is also the country's need, and the noble Lord, Lord Drumalbyn, has referred to this. It is not simply their wish; it is their only option in many cases to do business—and thank God they do it, because it is in the country's interest.
§ Lord Harmar-Nicholls
Clauses 2 and 3 are the only parts of this Bill which cause me any disquiet; and 2 and 3 do not strike me as being clauses which have been put together by a Conservative Minister. They have been put in by civil servants, and that has been confirmed by the words used by my noble friend. He said that we must not do something that is generally good because it might be abused. They are always terrified of the one or two who will abuse something. On the basis that something cannot be done because it might be abused by a minority, you would never have a Budget, because in every Budget people find ways of getting round what was intended in the Budget. But what do you do? In future Budgets you stop up those loopholes when abuse has been seen to have taken place. I believe that when this Bill becomes an Act there may well be some weak points in it left open to abuse by one or two who will find loopholes. It is then up to Parliament, at the time when the loopholes are found, to stop them up—but not to begin by not being fair to the self-employed and the categories mentioned by the noble Lord, Lord Spens, who really do make such a great contribution to the general well-being, the wealth and the reputation this country has in the world.
§ Lord Geddes
This amendment and that of my noble friend Lord Drumalbyn have raised again a point which causes much concern to the Committee on this particular question. My noble friend the Minister has been kind enough to say on many occasions that he is very concerned about this point, but, with great respect, I do not think it is good enough to fall back on subsection (6)(b) as one of the escape routes for the self-employed in that the parents would have to come back for three years. There seems to be no justification for the self-employed being treated any differently from 1109 the employed in this context. I can only take comfort from the words of the noble Lord the Minister when he says he is soliciting (if that is the right word) support from all sides of the Committee. I am glad to offer, hopefully with others, what little support I can and try at Report stage to get in some amendment which will cover this particular point. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy Chairman of Committees (Viscount Simon)
I have to remind the Committee that if Amendment No. 44 is carried, I shall be unable to move Amendments Nos. 45 and 46.
§ 10.55 p.m.
Lord Geddes moved Amendment No. 44:
Page 3, leave out lines 28 to 30.
§ The noble Lord said: I shall not detain your Lordships' Committee for longer than I have to. I did not speak on the amendment of the noble Lord, Lord Spens, in that his amendment covered paragraphs (b) and (c), whereas mine covers paragraph (c) only. The problem with the present wording is that it makes necessary an assessment of an unquantifiable connection between the United Kingdom and "the nature or terms and conditions" of a person's employment.
The meaning of that expression "nature or terms and conditions" is itself doubtful. In a letter dated 2nd June this year, the Home Office advised that:
The purpose of the subsection was to ensure that the parent is genuinely representing British interests in his overseas employment and there are no set criteria. We envisage that, in most cases, it will be clear from the details of the employment provided on the application form that it is serving British interests and that no further inquiries will be necessary. However, I am not able to say with certainty whether all international staff would meet this requirement should they in future apply for British citizenship for their children born abroad. Each case would need to be considered on its merits at the time of application".
§ I suggest that this can hardly be described as an adequate explanation as to why Clause 3(2)(c) is necessary. If it remains in the Bill unamended, it is bound to cause problems and uncertainties in the minds and lives of those affected. I feel strongly that the Bill would be greatly improved by the deletion of this subsection. I beg to move.
§ Lord Gifford
I support the noble Lord, Lord Geddes, in this amendment. It seems to me that there are going to be all kinds of employment which are covered by the term, "relevant employment", which will not involve a particularly close connection with the United Kingdom. For a start, one thinks of many employments with international organisations to work in foreign countries. It may be the Food and Agricultural Organisation or the World Health Organisation, which work wholly for the benefit and assistance of another country, but which do not have a particularly close connection with the United Kingdom. So also, possibly, with employment with subsidiaries which are not wholly owned by British companies, such as was raised by the noble Lord, Lord Avebury. Surely the nature of the foreign employment is not particularly relevant. What is relevant is that people who go to 1110 take jobs abroad, and who intend to maintain their close connection, should benefit from the provisions of Clause 3(2). I support the contention that there is really no need for these three lines.
§ Lord Belstead
I must be a little more downright on this amendment. I am surprised at the enthusiasm with which my noble friend moved it. We have discussed at great length whether employment should be the criterion in Clause 3. But if one is not going to have a cross-reference with the criterion of a close connection with the United Kingdom, it seems to me that then one is accepting the situation which this country is stuck with today, that citizenship, however proudly held it may be, is, none the less, held by people who have either never had a connection with this country or who have lost connection with it. So that special barriers have had to be put up by Governments of different political parties to prevent those people from being allowed to enter the United Kingdom. The whole idea, which is most certainly workable, that citizenship should be tied to an absolute right to enter and live in the United Kingdom must surely be underpinned by a cross-reference to the criterion. The Government believe that "relevant employment" should be part of that cross-reference. We also believe that a connection with the United Kingdom should be another part of it.
I do not think there is anything I can add to the answer, except that if we removed the close connection part of the criterion I think we should be back to square one and exactly where we were before the previous Government began to think in the middle of the 1970s that it was right to try to overhaul the nationality law of this country.
§ Lord Geddes
I cannot pretend that I am overjoyed by the answer of my noble friend the Minister on the Front Bench. Nor, indeed, am I suprised by it. In the circumstances, with several more Committee days ahead of us and with the Report stage to follow, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 45 not moved.]
Lord Geddes moved Amendment No. 46:
Page 3, line 28, after ("or") insert ("the").
The noble Lord said: On the basis that subsection (2)(c) must remain, it seems preferable that
the nature or the terms and conditions …
should be the wording. It is a small point but I submit that it is an improvement. I beg to move.
§ Lord Belstead
It is important that the effect of Clause 3(2)(c) should be that the nature of the employment or, as an alternative, the terms and conditions of the employment should involve a close connection with the United Kingdom. I believe that the present draft achieves this effect, but as I know that my noble friend Lord Geddes attaches importance to this point and as I believe he is correct in his desire to make this crystal clear, I have great pleasure in accepting the amendment.
§ On Question, amendment agreed to.
§ [Amendments Nos. 47 and 48 not moved.]1111
§ Lord Denham
I think your Lordships may feel that although perhaps we have not gone quite so far as some of the more optimistic of us had hoped, this might be a convenient moment to adjourn the Committee. Unless any noble Lord objects too thoroughly, I beg to move that the House do now resume.
§ Moved accordingly and, on Question, Motion agreed to.
§ House resumed.