§ 3.43 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Belstead)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Lord Belstead.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 3 [Acquisition by registration: minors]:
Lord Geddes moved Amendment No. 49:
Page 3, line 34, leave out ("full-time").
§ The noble Lord said: My Lords, after the somewhat pyrrhic victory of Amendment No. 46 late on Monday evening, I suppose it could be argued that I am "Not out" as batsman and that logically therefore I should take first strike this afternoon. Continuing that sporting analogy a stage further, what greatly concerns me is that a Bill as important, as far-reaching, and as complex as this Bill should be developing into a match between, dare I say, my noble friends on the Government's Front Bench and the rest.
§ Apart from Amendment No. 46, which was essentially a drafting amendment, my noble friends on the Front Bench have effectively remained what I can only describe as distinctly hard of hearing to all arguments to date. Of course I can speak only for myself but, 1382 having sat through the Second Reading and the first two days in Committee, I am getting a growing feeling that all is not sweetness and light in the referee's dressing room.
§ Opposition—with a little "o"—to particular facets of this Bill can, does and will take many guises. The right reverend Prelate and others have taken what one might describe as a spiritually humanitarian stance. The noble Lords opposite have taken a wide variety of stances, ranging from political and humanitarian to purely practical. From the Cross-Benches and more particularly from the Back-Benches on this side of your Lordships' House there has come, I suggest, strong practicality based on not inconsiderable experience. I believe it is probably fair to say that there is wide recognition of the necessity for an up-to-date British Nationality Bill, but—and it is a big "but"—I sense that there already exists a strong feeling on these Benches, let alone elsewhere in your Lordships' Committee, that the Bill as presently drafted contains many anomalies, injustices and illogicalities.
§ As I understand it, it is a prime function, if not the prime function, of your Lordships' House, be it in Committee or otherwise, to be able to stand back from any piece of proposed legislation and to review it with extreme care. There must be—or should be—a corollary to that; namely, that the Front Bench of the Government of the day, whatever their political view, should pay more than passing heed to views expressed, particularly if, as in this case, those views seem to have support from all Benches except those occupied by my noble friends at the Dispatch Box.
§ Both my noble friend the Minister and the noble and learned Lord, the Lord Advocate, have stated on more than one occasion that they want first to hear all views—particularly, in the light of the situation we find ourselves in at the moment, views on Clauses 2 and 3—before they comment. Frustrating though it may be, I believe I can follow the logic of that position. Having said that and with the exception of my noble friends' comments on the discretion of the Secretary of State on the position of the self-employed and the "mini" concession on Amendment No. 46, the Committee has so far had ne'er a word of encouragement. Entirely coincidentally, the last amendment presently tabled under Clause 3 happens to be under my name and I shall certainly listen with more than usual interest to the comments of my noble friends on the Front Bench at that stage or immediately thereafter.
With Amendment No. 49, my endeavour is to avoid greater arguments as to the definition of "full-time employment". The position in respect of the self-employed has already been raised. What of the part-time employee or director? A man or woman may be partly employed by a number of firms, and I use the word "firms" deliberately in anticipation of Amendment No. 54. From each firm's point of view the individual is only partly employed, but from the individual's point of view, he or she may be very much employed full-time. If we look at Clause 3(9), which deals with a partner, it is interesting to note that even regardless of the outcome of Amendments Nos. 79 or 81, the wording of the subsection as it stands refers to:
A partner in a firm established in the United Kingdom is to be regarded as employed in employment with the firm".
There is no reference to the word "full" or "full-time". I should be much happier, and I suggest that the Bill would be that much better if the preamble to Clause 3(3) read:
(3) In this section 'relevant employment' means employment—".
I beg to move.
§ Lord Belstead
I was disappointed to hear that my noble friend felt that the noble and learned Lord Advocate and I had not given enough heed to amendments which have been moved on the two previous sittings in the Committee stage of this Bill in your Lordships' House. I consider that we listened closely, and we showed that we had done so by accepting an important amendment which was moved by my noble friend Lady Trumpington to Clause 1(4). Then there was almost the last amendment to be moved at our previous Sitting, which was also moved by my noble friend the Lord Geddes. I should have thought my noble friend would have noticed that the very next amendment, which is in my name, is in response to opinions expressed in another place by the honourable Member for Uxbridge, Mr. Michael Shersby. Furthermore, I feel sure that before long this afternoon my noble and learned friend the Lord Advocate will also be demonstrating that we have, indeed, taken seriously other amendments in the names of my noble friends Lord Drumalbyn and Lady Elles and, indeed, my noble friend Lord Geddes himself.
But so far as this amendment is concerned, if employment is to be an essential element in defining a connection with the United Kingdom, then the employment concerned must occupy a significant role in the individual's life. The other evening there was an amendment down in the name of my noble friend Lord Drumalbyn, which my noble friend did not move, to insert the word "genuinely" into the text when it was referring to employment. Although my noble friend did not move the amendment, I could well understand why he felt that it was necessary to know, if there was to be a relevant employment criterion, that it was, at least, a genuine one. For example, I do not think a part-time job, or an occasional consultancy with a British firm, will do, since this cannot be the basis for a link with the United Kingdom which is sufficiently close to justify the conferment of citizenship on the employee's child.
Before I finish these few remarks, may I go just a little wider, because my noble friend went a little wider. May I just remind the Committee that the foundation of the Bill is the need to tie British citizenship with those people who have close and continuing links with the United Kingdom, and thereby to confer automatically the right of abode on all British citizens. In doing this, we are providing in the Bill that all British citizens, whether they are men or women, should have equal rights to transmit citizenship, and all British citizens, whether they are born, naturalised or registered, should also have equal rights to transmit. This will mean enormously increased opportunities to transmit from generation to generation. When, in addition, we are studying the criterion for those who will transmit through their employment, we are, after all, seeking 1384 to define the elements of a significant tie with the United Kingdom, and the Government believe that for this purpose the employment concerned should be on a full-time basis.
§ Lord Avebury
I wonder whether I may revert to a question which I put to the noble Lord, Lord Belstead, at the previous sitting on 13th July, which appears in col. 1100 of Hansard. I asked him then whether it would be possible, for a person who was contemplating taking up employment, to find out whether it would be accepted as relevant employment by the Home Office, for the purposes of this clause. The noble Lord, Lord Belstead, said in reply that he hoped I would understand when he said,that obviously all the practicalities have not been worked out, but … 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".I took that as being a semi-undertaking that, when somebody wished to know whether a job which had been offered would satisfy those criteria, he would be able to get some kind of clearance before he went. It is very important that we should get that on the record, and that something more definite is said by the Minister this afternoon in response to this amendment. When we talk about full-time employment, the phrase can be interpreted in relation to United Kingdom legislation, but we do not know whether exactly the same meaning will be attributed to the phrase if somebody goes to Tanzania or Australia. Perhaps that is obvious to the lawyers; it is not to me and, I suggest, it will not always be to the people who are thinking of taking these jobs abroad.
The other point that I want to make is that the noble Lord, Lord Belstead, has just pointed out that, by the amendment that he is about to move, we are considering not only employment overseas; we are also treating employment in the United Kingdom as being relevant employment for the purposes of this clause. We had several discussions—not just one—on the circumstances that we face in this country, with 3 million people out of work and a vast number of people having to accept whatever jobs are available.
It is probably well-known to your Lordships that there is a growing practice of work sharing, in that two people may do the same job, one going to the place of employment in the morning and the other going in the afternoon. There is a growing practice in some companies of adopting short-time working as an alternative to redundancies. One hopes that that will continue, because it is better to have part of a job than none at all. So I would fully support the noble Lord, Lord Geddes, when he seeks to make this alteration in the Bill, particularly with regard to that part of the relevant employment within the previous two years, which may have been within the boundaries of the United Kingdom.
This would make the Bill more flexible. It would increase the confidence of people when they go abroad to know that the part-time job that they have had—if they have been so lucky—in the period leading up to their departure for overseas, would count as relevant employment. Therefore, I very much hope that the Government will, at least, take this back and give it further consideration before Report stage.
§ Lord Boyd-Carpenter
I hope that my noble friend Lord Belstead will not think it offensive if I say that, in his speech, he did not really even attempt to justify the retention in the Bill of the expression "full-time", which my noble friend's amendment seeks to delete. He said that where employment was to be the link with the United Kingdom, it should be significant and I certainly would not want to argue with him about that. I would agree with him about that. But employment can be significant, particularly in the cases of certain individuals, without being full-time.
My noble friend will be aware, if he looks at the lists of public appointments which are published annually in a White Paper, that many chairmen and directors of nationalised industries are described as "main-time" as distinct from "full-time". It would seem to me quite wrong that the advantages of this part of Clause 3 should be denied to someone whose employment was main-time, because it could not be argued to be full-time.
There is also the question of the women. Many married women with young children—and these are precisely the people who may well be going to have another child—work part-time while the child is at school. It would seem a little oppressive to exclude them from the benefits of Clause 3 simply because, in the nature of things, a part-time occupation was all that they could follow. But it may well be—in my noble friend's own phrase—significant. It may well establish a real and significant link with the United Kingdom. Yet on any reading of the clause as it stands, with the words "full-time" in it, it would not qualify. So I ask my noble friend to have another look at this.
He will have heard, in the nicest possible terms, the warning of my noble friend Lord Geddes that during the first two days of this Committee stage, while he and his noble and learned friend have been the height of courtesy and charm, they have been pretty inflexible on anything of any real substance. Some of us, who have a little experience of these matters, may have developed the suspicion that they themselves are operating under fairly tight riding orders from their friends elsewhere. It is not going to help our debate. Could I say with very great respect to my noble friend that a Minister in charge of a controversial Bill at a late stage of the session sometimes finds that he makes rather speedier progress by means of a well-timed and occasional concession.
§ Baroness Birk
I should like to support the spirit behind the amendment. Also, I agree entirely with what was said by the noble Lord, Lord Boyd-Carpenter. If the position remains as it is in the Bill it will cut out a great many women who are doing part-time work. If we look at subsection (2) it is quite clear that a person will fulfil the stated requirements if the Secretary of State is satisfied that those requirements were fulfilled in the case of either his father or his mother. In a case where it is the mother, it is very likely that her work will be part-time.
In his reply the Minister said that if employment is essential it must occupy a significant role in the applicant's life, but he has not given any strong reasons, except that it could not be part-time or consultancy 1386 work, to justify that assertion. It is very important that it should not remain in this restricted fashion. In concentrating on women I am not adopting a sexist attitude, because this would also apply to a number of men. If the position is left as it is in the Bill, it will be far too restrictive. I believe that this is how many of us across the Committee feel about it.
I take some interest in this part of the Bill because I would have had to qualify, together with one of my children, under this clause. I think I would have qualified under (3)(b) and (3)(c) but I can think of many people employed in that part of the world where I was employed who would not have qualified but who nevertheless would have regarded themselves as 100 per cent. British citizens and who would have wished to pass their citizenship on to their children. Directly you start to define something in terms of employment, you get into the most awful bog. The safest thing to rely on is (2)(d):That the parent in question intends to maintain a close connection with the United Kingdom …".That is a criterion which it is not too easy to prove but it is very much clearer than trying to define innumerable types of employment which might or might not qualify. In the paper today I happened to notice that some hospital, I think in West Africa, is advertising for a financial controller. If he goes out, stays a number of years and has a family out there, will his children qualify under this Bill? I think they will qualify only if he intends to maintain a close connection with the United Kingdom. I would suggest that my noble friend should rest his case more on that than upon anything else.
§ Lord Drumalbyn
Could I begin by saying that for my part I would not expect my noble friend on the Front Bench to be able to accept many amendments at this stage because of the great complication of the Bill and because he will have to go away and think about what we have said and see how it ties in with the rest of the Bill. I have every confidence that he will do that and I hope that we shall see the results at the next stage of the Bill.
Unlike the noble Baroness opposite, I support the principle of the Bill as it stands but I foresee difficulties over its being put into practice. It is desirable that this facility should be given to people who are working full time, but that they should be employed full time by one particular company is a quite different matter. I would suggest that my noble friend should look at that point. I am sure that my noble friend Lord Hawke is quite right in saying that very often a person who goes out from this country to do a particular job then finds himself, as my noble friend Lord Boyd-Carpenter said, being mainly employed in that job but doing other jobs as well. I remember a man whose main employment was with a shipping firm but who was also the joint correspondent of The Times. Incidentally, he was also chairman of the British School in that place, and often captained the cricket team. This shows his close connections with Great Britain.
I should be grateful if my noble friend could at least say that he will look at this aspect because I do not think that the way in which the Bill is drafted on this point is quite right. It would tie a man to 1387 being full-time by one particular company. A man might be refused recognition under this clause if he had two or three other jobs which took up a considerable part of his time.
§ Lord Harmar-Nicholls
If it is the intention of my noble friend Lord Geddes to push this amendment to a Division, I would expect my noble friend the Minister to be in the Lobby with us because the words in the Bill do not square with what he said at the Box. He said that he would be satisfied, as my noble friend Lord Boyd-Carpenter said, if the employment was significant. The words do not allow "significant" to come into it. It is full-time. That has a real meaning. There is no doubt that if "full-time" remains as the definition it will restrict the Bill to a point where I doubt whether it will be workable. All the arguments which have been used regarding women, part-time consultants and the rest are very strong. But now that we have more or less had to accept that employment is going to be the touchstone as to whether or not it passes the test, I believe that from that point on we ought to be as broad and as sensible as we can as to how "employment" will be interpreted. I was very impressed with the point made by the noble Lord, Lord Spens, regarding one of his amendments, that employment as we see it today may well not be the type of employment which will be generally accepted as meaning employment 10, 12 or 15 years from now when this Bill, if it becomes an Act, will be operative.
I have argued on the one or two occasions upon which I have intervened that power should be left in the hands of the Secretary of State to decide upon the definitions. I should have thought that here is a case, for all the considerations which have been put forward by my noble friend, where the Secretary of State ought, in the light of the conditions existing at the time, to be the one to decide what is relevant employment. One ought not to tie his hands in advance by saying that he can concede only if it is what we term full employment. I believe it will be a much better Act if, having given the power to the Secretary of State to take into account conditions at the time when the decision will have to be made on this particular point we let him decide whether part-time, or consultancy time, or main time, as my noble friend Lord Boyd-Carpenter said, is that which brings them within the orbit.
I should have thought that this was a time when the amendment of my noble friend Lord Geddes ought to be accepted. And if it is that my noble friend still believes, as he seemed to do when he made his speech a minute or two ago, that "significant" is the word, then he ought to be in the Lobby with us.
§ The Earl of Lauderdale
May I add one other word in support of this amendment. I have in mind the situation of a foreign correspondent of one of our great newspapers. I speak now from direct personal experience, having travelled the world for The Times and other newspapers in my day. The foreign correspondent of, let us say, The Times who might also serve an American newspaper at the same time and who therefore would not be fully employed by either, though he would be fully employed by both, is in a 1388 very exposed position. Very often he is treated in the countries to which he is accredited as the nearest thing to a spy. I can think of one of my assistant correspondents who ended up in Dachau, of another one who only very narrowly escaped and of a third who also very narrowly escaped after great difficulties. The people who work for our media overseas are very exposed indeed. One can think of cases where, if they have not died in concentration camps they have been exposed to years of prison and suffering. With a change of régime, because the country is overrun by the Germans, or the Russians, or whoever it may be, it is very important that they should know that in serving—to take the example of The Times—they stand in some measure of respect and honour in the country from which their employment stems.
Merely because such a correspondent is not full-time in the technical sense, he will be ruled out although he renders great service to the country, simply by being in a very exposed position. Not only is he not on a salary, he may not even be on a retainer. He may simply be on the equivalent of a lineage basis or recompensed according to the amount of time that he gives to the paper or to the network for which he is working, according to the situation. When there is no crisis there is no work, and for him no money, or very little. When there is a crisis he is working flat out, so he is then full-time.
Then what applies to newspaper correspondents should also surely be considered with regard to part time engineering and planning consultants, for example. In countries in the developing world the planning or the architectural consultant has a very important role to play in identifying opportunities for which British firms may tender. He is therefore a very important element in the export drive. He may not be full-time employed; he may be self-employed. Are the self-employed left in or left out by this clause?
I hope that my noble friend will have gathered the sense of what has been said from many different quarters of the Committee and from many different points of view, both professional and political, and that he will take it back and realise that there are people who are not in the technical sense full-time employees of one particular organisation but their contribution to our well-being and our survival is indeed significant.
The Earl of Erroll
I would also point out that if the provision says "full time" it also prevents someone from changing jobs because subsection (2)(b) says "throughout the period of two years". Therefore, if a person were to change jobs and have, say, a lapse of a week between jobs the employment would not be throughout the period of two years. A person would immediately forfeit all rights.
Another point is that I should have thought that the purpose of these four categories, paragraphs (a), (b), (c) and (d), was to ensure commitment. The commitment is quite well assured in (c) and (d) and all four must be fulfilled. They are linked by the word "and" and not "or". All four have to be fulfilled and (c) and (d) seem to provide the request for commitment to the United Kingdom.
The Minister knows my views about employment as the only tag on which to hang this 1389 close affinity and the fact that in future years employment may just be disappearing, but also when we were discussing the possibility of including self-employment in this clause he said that the Government were unable to think of any way of doing it and he has thrown the ball back at us in order to give us an opportunity to find a solution. If this phrase of "full-time employment" is kept in the clause that will rule out any chance of getting self-employment put into the clause. What is full-time employment for the self-employed? There may be occasions when they are working 24 hours a day and there may be other occasions when they do not work at all, so how do you define "full-time employment" in relation to the self-employed? We must try to get this very great restriction which the words "full-time" mean, deleted, if possible.
§ Baroness Elles
I should like to put a question to my noble friend. The fact that this Committee feels so strongly about the term "full-time" is perhaps indicative that many of your Lordships, when they are working abroad, are not working full time. I wonder whether any consideration has been given to those Members of your Lordships' House who do work outside this country and eventually have children abroad. Will they also not be British citizens when they take up their titles and sit in this House?
§ 4.15 p.m.
§ Lord Belstead
I will, if I may, confine my remarks to the effect of the amendment, which is to delete the words "full-time" from the text when talking about relevant employment.
§ Lord Geddes
If my noble friend would allow me to intervene, he has in fact anticipated my point in regard to deleting the words "full-time" from the text.
§ Lord Belstead
Although many of the remarks which have been made in this short debate have been informative, they have gone a little wide of the amendment. My noble friend Lord Boyd-Carpenter expressed the hope that I would not find him offensive. Of course not. However, I do find my noble friend, uncharacteristically, somewhat inconsistent on this occasion, if he will forgive me for saying so. I say that because my noble friend, with his characteristic ability has, in previous debates on the Bill, expressed some criticism of the need for the Secretary of State to have so much discretion in the Bill, which my noble friend has said is bound, in the circumstances of today, to be in fact the discretion of officials of the Home Office, who of course in certain cases will give advice to the Home Secretary. The inconsistency which I feel is there on this occasion is that if this amendment were to be accepted—and my noble friend Lord Boyd-Carpenter would support him—then I think there would be endless arguments about what constitutes "relevant employment". There would be an increase of discretion and, incidentally, an enormous increase in the amount of time which is taken to decide particular cases.
However, both my noble friend and the noble Baroness, Lady Birk, have made valuable remarks about the particular position of women, although 1390 of course they are made in the context of a Bill which is supposed to be putting men and women on exactly the same footing. I cannot resist just reminidng the Committee of that.
§ Baroness Birk
Just let me interrupt—I particularly went out of my way to say that I wanted to make it quite clear that my remarks applied to men as well as women.
§ Lord Belstead
Very well; the Government will certainly look at the remarks made by my noble friend and the noble Baroness in that light. Indeed, we shall look carefully at what has been said by many of your Lordships, first by my noble friend Lord Drumalbyn, about the position of people who are doing valuable jobs—often very valuable jobs—but the very nature of their job means that it is not defined as "full-time".
Incidentally, there is one small technical point which I think it is right for me to inject, which is that both my noble friend Lord Drumalbyn and the noble Earl, Lord Erroll, I think were not entirely right in their assumption that Clause 3 only refers, in the requirements for relevant employment, to somebody who sticks in the same job. I think if the noble Earl glances at subsection (4) he will see that specific arrangements are made there for somebody who wants to change his or her job en route.
Certainly the Government will respond to what was said by my noble friend Lord Lauderdale and my noble friend Lord Harmar-Nicholls. The Government will look carefully at what has been said. I hope I have pointed out some of the difficulties in respect of this particular amendment from the Government's point of view, and I hope that with that response my noble friend will consider withdrawing the amendment.
§ Lord Boyd-Carpenter
Before my noble friend indicates what he is going to do, I should like to take up one personal reference made by my noble friend Lord Belstead. I welcome his emphasis on consistency and I hope that he will apply it himself. His argument on this occasion was against leaving matters to the discretion of the Secretary of State. When we come to subsequent amendments he will no doubt find that quoted against him.
§ Lord Belstead
There was a reason why I used that particular argument, and it was not a reason I had to resort to because I could think of nowhere else to resort. It was because we are talking in Clause 3 about an entitlement, and I genuinely think that there is some difficulty here, when my noble friend Lord Harmar-Nicholls talks about going wholly towards the Secretary of State's discretion. In considering the value of an amendment of this kind, I would ask the Committee to consider that one has to decide, first of all, do we really want to abandon what is meant to be, and indeed is written into the text as, an entitlement, or do we want to foresake that and go wholly to a matter of discretion? It is that which the Government will go on considering in the light of what has been said; but I hope that I have been able to point out some of the problems inherent in this amendment.
Before I sit down may I say that I realise I have not replied to the noble Lord, Lord Avebury. It is not 1391 from any wish to be cavalier to the noble Lord, but I really do not think I can add very much to what I said at the last sitting of the Committee. The noble Lord asked me specifically whether a certificate would be issued to people before they go abroad. I cannot add to what I said to the noble Lord on that point. Undoubtedly, if people wished to approach the Home Office, if Clause 3 became law unamended, they would be able to thresh out with the Home Office where they stood. I am not in a position to say whether or not a certificate would be issued. But this point, important though it is, goes a little wide of the amendment we are discussing.
§ Lord Geddes
I am most encouraged by the support that this amendment has had in your Lordships' Committee, and I think the correct wording would be slightly encouraged by the second remarks by my noble friend on the Front Bench, rather than the remarks he made immediately following my moving of the amendment. I think the feeling in the Committee is that this is an extremely important point. The noble Lord the Minister has said that it would cause—I am paraphrasing his words, with apologies—confusion and anomalies. The reason I moved the amendment originally was that it would cause even more illogicalities and anomalies if the words "full-time" were left in. It is a question of evils, and I personally prefer the evil of deleting "full-time".
There is one point the noble Lord did not take up. I was going to make it and I was delighted that the noble Earl, Lord Erroll, made it from the Cross-Benches. Subsection (2) says very clearly the word "and" after (a) and after (b) and after (c). We have four provisos, of which "relevant employment"—and whether it should be full-time or not is what we are talking about—applies only to (b). So from the security point of view, if that is the right word, there are still paragraphs (a), (c) and (d) involved. I find difficulty here, but I think on balance I am not going to press the amendment. I should be most grateful if the Government would look very seriously at this position. It is, I think, an extremely important one, on which I hope we will see an improvement when the clause gets to Report stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.25 p.m.
Lord Belstead moved Amendment No. 50:
Page 3, line 35, at end insert ("(whether or not in the United Kingdom)").
§ The noble Lord said: I beg to move Amendment No. 50. This amendment is designed to clarify what is meant by the term "relevant employment" as defined in Clause 3(3). Under the Bill British citizens by descent can secure citizenship for their children born overseas if they are able to fulfil certain requirements, including in Clause 3(2) a requirement that the British citizen parent of the child has been in relevant employment for two years up to the date of the child's birth and is in overseas employment at that date. Clause 3(3) defines what is meant by the term "relevant employment" in this context. This amendment seeks to make clear that this relevant employment may be undertaken either in the United Kingdom or overseas.
1392 This is in fact already achieved in the Bill as it stands, but it has been put to the Government that this is not as clear as it might be and that those seeking citizenship for their children under Clause 3(2) might think that they had to be in relevant employment overseas for the two years preceding the child's birth. We are anxious that it should be clear that this is not so and that the period of relevant employment may be undertaken in or outside the United Kingdom. This amendment, therefore, is designed to remove any risk of uncertainty about this point. I beg to move.
§ Lord Elwyn-Jones
This would seem to be an admirable improvement in the provisions of this clause, and we naturally support it.
§ Lord Drumalbyn
As one who was not as clear as I might have been about the meaning of the clause without these words, and at that time not having seen this amendment, I welcome this clarification very much indeed.
§ Lord Underhill
May I ask the noble Lord the Minister, as he said this refers to the qualification in subsection (2)(b), whether this has any effect on the references to overseas employment in two places in subsection (4)(a) and in two places in subsection (4)(b), or whether that is to be clarified as well?
§ Lord Avebury
If I may refer back to the previous debate, on the 13th, when we were talking about the question of unemployment, the noble Lord, Lord Harmar-Nicholls, suggested that if a person was out of work in the United Kingdom and he was drawing unemployment benefit, for the purposes of this Bill he would be treated as if he was employed. I think this was a point which was not picked up by the noble and learned Lord the Lord Advocate in the reply he gave at column 1087. Whatever the truth of the matter may be, whether a person is looked upon as employed if he is drawing unemployment benefit, is it not the fact that a person in that position would have a close tie or connection with the United Kingdom? Has not the noble Lord, Lord Belstead, reiterated again this afternoon, for the nth time in proceedings on this Bill, that the essence of nationality is that a person should have a close and continuing link with the United Kingdom. Therefore, while relevant employment outside the United Kingdom should perhaps have the character which is ascribed to it in the Bill, is it not an inappropriate concept for persons who are within the United Kingdom for a proportion of the two years leading up to the date of birth of the child?
Would not the noble Lord go a little further than he has done? I welcome the clarification which the amendment has brought to the Bill, but would they noble Lord not say on behalf of the Government that as far as a person's time in the United Kingdom is concerned, which is counted towards the two years, it does not make any difference whether he is in full-time or part-time employment or unemployed, because during the time when he is physically here within the country he must by definition have a close tie or connection with the United Kingdom?
§ Lord Geddes
For the record, I should like to support this amendment very strongly, if only so that the noble Lord the Minister does not think that I am always against his point of view.
§ Lord Belstead
I am grateful to my noble friend. So far as the point made by the noble Lord, Lord Avebury, is concerned, I endeavoured on the last sitting of the Committee to point out the reasons why the Government felt that it was necessary to have what I called a "cross reference" between relevant employment and having a close connection with the United Kingdom. I think that it would be tedious if I were to go over that ground again.
Concerning the point which the noble Lord, Lord Avebury, makes about being unemployed, that is a matter, of course, which the Committee may wish to discuss further later on. But clearly, at any rate my reading of the Bill is that the matter of being unemployed would mean that somebody would not fall within the scope of Clause 3(3), although I repeat what I said to the noble Earl, Lord Erroll, that, of course, provision is made in subsection (4) for somebody to have a period of time out of employment when he is changing jobs.
§ On Question, amendment agreed to.
§ 4.31 p.m.
Lord Drumalbyn moved Amendment No. 50A:
Page 3, line 36, after ("company") insert ("firm").
The noble Lord said: I beg to move Amendment No. 50A, and I think that I can at least help the progress of the Bill so far as the number of amendments are concerned by speaking at the same time to Amendments Nos. 51A, 51B, 51C, 54, 55, 73, 74 and 75, and I should like also to refer to Amendments Nos. 76 and 78. This is a series of identical amendments which simply add the word "firm" to the words: "any company or association" in line 36 so that it will read:
In this section 'relevant employment' means full-time employment—
(a) with any company, firm or association established in the United Kingdom".
There will be the same effect wherever the words "company or association" occur as regards these other amendments.
§ I think that this is an improvement. Indeed, reference has already been made to the matter. Self-employed partnerships should surely be included and so should professionals employed in partnerships. I do not think it necessary to develop this argument to any extent but I am quite prepared to do so if anyone would wish it. I should like only to add that Amendment No. 76 proposes that the word "firm" should include the word "partnership". I hope that that is correct in law. Subject to that, I beg to move.
§ Lord Renton
I have no doubt that my noble friend Lord Drumalbyn has noticed that in Clause 3(9) we find that the word "firm" is used—and used there, so far as I can see, for the first time. The strange aspect is that subsection (9) refers back to subsection (3) in such a way that one would assume that the word "firm" had been used in subsection (3), whereas it 1394 has not been used. Of course it may be that the draftsman, magnificent though he is and using the English language only in its strict meanings, has rather jumped a bit and taken it upon himself to use the word "firm" in its broader and looser meaning as well as in its strict and legal meaning. As I understand it, the word "firm" as a term of art in law, refers only to a partnership; whereas in ordinary common parlance, especially no doubt in the City of London, the word "firm" is used in relation to any company or association, incorporated or otherwise, as well as any kind of professional body. Of course, it may be that one has missed the point.
§ Lord Drumalbyn
I hope that my noble friend will forgive me for intervening for a moment. He will observe that this is an amendment to an amendment. I am proposing to leave out the subsection altogether, which will simplify the matter. Will my noble friend also bear in mind that the word "firm" has a slightly different connotation in Scotland?
§ Lord Renton
I had, in fact, noticed and I am sure that noble Lords have noticed the many amendments which are consequential upon the one which my noble friend is now moving. All the same, I think that we are entitled to some explanation, if there is a rational one—which there may not be of course—as to why it is that in subsecton (9), which my noble friend wishes to leave out, the word "firm" is used, but in subsection (3) it is not used. I can hardly believe that the parliamentary counsel really intends that the word "firm" shall be used in its wider and non-technical sense.
§ The Lord Advocate (Lord Mackay of Clashfern)
I have sought to learn here from the wiser and more experienced, and your Lordships will have heard my noble friend Lord Boyd-Carpenter advising those in the position of my noble friend and myself that it would help us to give well-timed and occasional concessions. I hope that this is a good time for a concession, though. I fear that the concessions in the Committee stage, at least as regards the first part of it, may be rather occasional.
The difficulty so far as subsection (9) is concerned was one which we had appreciated. Having considered the matter as put forward by my noble friend Lord Drumalbyn we are persuaded that it would be possible now to do something to meet his point. I am glad, therefore, to be able to tell your Lordships, and in particular my noble friend, that we are prepared to come forward with amendments on Report to achieve this aim. At that stage also we shall take acount of what my noble friend Lord Renton has said. I think it likely that the intention was that a firm would be covered as an association—that is to say an unincorporated body of persons. We have the feeling that this is a fairly technical area and that therefore it would be preferable for us to come forward with our own amendments to deal with it rather than to accept those of my noble friend, and I hope that my noble friend will feel satisfied with that.
That undertaking will cover also the amendments which are down later in the name of my noble friend Lord Geddes, which I think are Amendments Nos. 79 and 1395 81—and we are glad on that matter to be of the same mind as he is—and also the amendment which is down in the name of my noble friend Lady Elles, which I think is No. 80. I hope that, with that assurance, my noble friend will feel able to withdraw the amendment.
§ Lord Mishcon
Before the noble Lord, Lord Drumalbyn, replies, I should like to say that I am sure that the Benches opposite feel very happy with the noble and learned Lord's reply. I am hoping that later in the proceedings some joy will equally be brought to the Opposition Benches because, as the noble Lord the Minister will know, when he quoted a number of concessions that had been made, he repeatedly referred to amendments moved by his noble friends. I hope that at some stage in these proceedings, he will be equally gracious to other sections of the Committee.
I intervene only to ask a question, I think that this was a very logical amendment to deal with the question of a firm—"an association of persons" was, I believe, the phrase that was used. But is it not equally illogical to have a clause of this kind which does not provide for the single employer who has an employee and who makes an arrangement with that employee to serve an association, or be it a single individual abroad who comes within the purview of this provision? I am at the moment unaware—and it may very well be my foolishness, for which I apologise to the noble and learned Lord—why this has to be an employer consisting of a body of persons or indeed a limited company. If the noble and learned Lord finds that, surprisingly, I have made a sensible point, I wonder whether he will agree to consider this aspect for the Report stage, as well as the aspect that has been covered by the amendment that we are now discussing.
§ Lord Mackay of Clashfern
I certainly would not express surprise that the noble Lord should make a sensible point—not at all. I think that these provisions are drafted against the background of what is understood to be the likely circumstances, and the use of the words "company" and "association" arises for that reason. But I certainly undertake to consider, with my colleagues, the problem that the noble Lord has raised, in order to see whether, in fact, there is anything that we ought to do in that connection.
In view of what the noble Lord said about the distribution of the amendments in respect of which we have been able to undertake to make alterations in the Bill, one of the earliest that we said we would consider very carefully came from his noble friend Lord Gifford.
§ Lord Drumalbyn
I should like clarification of the situation in which we now find ourselves. I have spoken to a large number of amendments and have also referred to Amendments Nos. 76 and 78. I gather that my noble and learned friend has replied to me on Amendments Nos. 76 and 78 and said that he will look into this with a view to bringing in more appropriate amendments in lieu of them. He has accepted in principle the amendments to include the word "firm", but again he is also going to consider what is the most appropriate form of amendment. Is the situation that he wants me to withdraw my amendment? I see that my noble and learned friend 1396 is indicating agreement, so with that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.42 p.m.
Lord Geddes moved Amendment No. 51:
Page 3, line 37, at end insert ("or").
§ The noble Lord said: In speaking to Amendment No. 51, I should also like to speak to Amendments Nos. 53, 56 and 57 and, with the same endeavour of my noble friend Lord Drumalbyn, try to sweep four in together. As will be obvious to your Lordships' Committee, I am neither a lawyer nor a professional draftsman. Indeed, I am advised that the normal usage of the word "or" in legislation is to reserve it for the last alternative. Be that as it may, it appears to me to make a great deal more sense in this subsection if the word "or" was inserted at the end of paragraphs (a), (b), (c) and (d). It is, of course, inserted after paragraph (e). I beg to move.
§ Lord Mackay of Clashfern
In this case there is no difference between us about the sense of the matter. The subsection that we are considering lists a number of forms of employment which can be "relevant employment", and then the word "or" between the last two of these is an indication of the nature of the link which exists. I think that it is in accordance with normal drafting style to express it in that way. It would not be wrong to have "or" in at each of the preceding breaks, but it would add nothing except an extra word, and in the interests of economy and of elegance of style, I think that it would be right to leave this subsection as it is. In the light of that explanation, I hope that my noble friend will feel able to withdraw his amendment.
§ Lord Elwyn-Jones
I am not sure that the elegance of style is not claiming too much for the words of the Bill. However, I agree with the point of the noble and learned Lord.
The Earl of Erroll
As someone who programmes computers, may I say that the words "and" and "or" have very definite logical meanings, and many of the problems that arise in legal documents are as a result of using the word "and", when one really means "or". Perhaps one should be aware of these distinctions when drafting. If a little more rigorous logic in the use of these two words was applied in drafting Bills, the Bills might be clearer at the end of the day.
§ Lord Elwyn-Jones
It is the legal precedent that the word "and" can mean "or". Indeed, in the last case in which I had the honour of appearing as counsel in the Appellate Committee, I successfully established that proposition.
§ Lord Mackay of Clashfern
I suppose that computers will need to learn to cope with "the noble and learned Lord"!
§ Lord Geddes
I am not entirely sure whether I should feel either chastened and/or reprimanded, but in view 1397 of the comments made, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 51A, 51B, and 51C not moved.]
Lord Geddes moved Amendment No. 21:
Page 3, line 41, after ("in") insert ("or associated with a company or association established in").
The noble Lord said: I raised this point during the Second Reading debate when I asked—and I am not certain that I quote precisely my own words—whether it was equitable that the right of citizenship may depend on whether a person's employer happens to recruit through a company or association established in the United Kingdom. If Clause 3(3)(c) allows an associated relationship, as defined in subsection (8)(b), then it would seem logical that the same should apply in subsection (3)(b). With apologies if that sounds somewhat complicated, what I am getting at is that as drafted subsection (3)(b) is more restrictive than subsection (3)(c). There seems to be little logic behind that. Although the words are very cumbersome, I think that the amendment that I have tabled would bring those two subsections into line with each other, in that subsection (3)(b) would now read, towards the end:
… was arranged by a company or association established in or associated with a company or association established in the United Kingdom".
I beg to move.
§ Lord Mackay of Clashfern
As regards Clause 3(3)(c), to which my noble friend referred, that is a continuing link which remains throughout the time of the employment. Subsection (3)(b), on the other hand, is concerned with a link which is established only at the beginning of the employment. In other words, it is a link that depends upon the way in which the employment itself was begun.
Clause 3(3)(b) was widened, in answer to representations made, in order to include some cases which appeared to be deserving cases. For example one of these was where a company in the United Kingdom grants a licence to the overseas company to manufacture its products and, as part of the agreement, agrees to provide staff who will be employed by the overseas company and who will provide expert assistance to it. That is the kind of case which the definition, as it now appears in Clause 3(3)(b), is intended to cover.
My noble friend's amendment would go considerably further than that. It would bring within the definition of "relevant employment" employment with an overseas company which was linked with the United Kingdom only because it had been arranged by a company, say, an employment agency, established overseas but which was controlled by or which itself controlled an employment agency in this country. I think that it would be impossible to accept that such employment in itself reflected any sort of real or significant link with this country. The difference between Clause 3(3)(b) and Clause 3(3)(c) is quite an important one in this area, and, therefore, I would ask my noble friend to accept that the logic which he 1398 was seeking to apply from Clause 3(3)(c) back to Clause 3(3)(b) is not appropriate in this instance. In the light of what I have said, I hope that my noble friend will feel able to withdraw his amendment.
§ Lord Geddes
I think that I can follow the counter-logic—if I may so call it—of my noble and learned friend the Lord Advocate. Having tabled the amendment, obviously, I should still like to see the extension that my amendment would give, but it is a relatively minor point and I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 53 to 59 not moved.]
Lord Geddes moved Amendment No. 60:
Page 4, line 44, leave out from ("fit") to end of line 45.
§ The noble Lord said: In future I must endeavour to spread such amendments as I may propose to your Lordships' Committee a little further apart. In speaking to Amendment No. 60 I should like to speak also to Amendments Nos. 61, 62, 63, 64 and 65. These six amendments are an attempt to tie into each other. A great debate has taken place in your Lordships' Committee regarding the discretion of the Secretary of State. I feel it right that the Secretary of State should not have quite the wide powers of discretion that he has as the Bill is presently drafted. These amendments are therefore tabled with that aim in mind. It may be the general consensus of opinion in your Lordships' Committee that this point is already covered by remarks made by my noble friends on the Front Bench in response to earlier questions. I beg to move.
§ Lord Mackay of Clashfern
This series of amendments are at the very least drafting amendments and they may, as my noble friend said, have some effect in substance. It may be helpful if I read the subsection as I think it would be if my noble friend's amendments were given effect to. I think subsection (5) would in that event read:If in the special circumstances of any particular case the Secretary of State thinks fit,I accept that at first sight the wording of subsection (5) as it now is may appear rather cumbersome. It does however, we think, achieve the intention, and we fear that this is not quite so true of the revised wording proposed by my noble friend Lord Geddes. May I just say briefly why we think that? First, in Amendment No. 60 my noble friend is seeking to remove the words,
- (a) subsection (2) may be treated as if the reference to twelve months were a reference to six years; and
- (b) subsection (2) (b) may be treated as if the reference to two years were a reference to a shorter period".he may do either or both of the following things, namely—".Now I suggest that these words do in fact serve a rather useful purpose in that they make quite clear that each of the two discretionary powers set out in the subsection may be exercised independently. This is an important point that would not be equally clear in the revised version.
Secondly, in Amendments Nos. 61 to 64, my noble friend is seeking to replace the wordsthe Secretary of State may treat subsection 2 (or 2 (b))1399 by the words,subsection (2) (or 2 (b)) may be treated".Once again, I think this is to lose a little in the rewording. The wording as it stands emphasises the responsibility for exercising these powers by the Secretary of State.
Finally, in Amendment No. 65, my noble friend is seeking to replace the words, "such shorter period as he thinks fit" in subparagraph (b) with the words "a shorter period". Now, it is true that the words "the Secretary of State thinks fit" already appear at the beginning of the subsection. It may therefore be thought that there is no need for them to be repeated here. They are not, however, just repetition. They draw attention to the fact that two separate discretionary powers are involved here: one to decide whether or not a period shorter than two years should be accepted and another to decide of what length this shorter period should appropriately be. These are both quite important powers, distinct powers, and as my noble friend Lord Belstead said earlier, this is a section where we are concerned to confer an entitlement. It is important, therefore, that any discretions which are involved should be fairly clearly defined, so that, if a court had to consider the entitlement, they would have a clear view of the areas in which discretion operated.
This is a passage of the Bill to which reference has been made in exchanges in which my noble friend Lord Boyd-Carpenter and the noble Lord, Lord Mishcon, took part earlier. I referred then to the fact that (b) could lead to a discretion that would enable one to overcome difficulties that might occur in a particular case over the 90 days. Although it does not expressly cover that, I quite agree, the period that the Secretary of State is bound to consider might be shortened in an appropriate case so as to avoid the necessity of covering a particularly troublesome period that extended over 90 days.
I hope that, in the light of these explanations, my noble friend may feel that the wording we have chosen in this important area is appropriate. I am grateful to him, however, for his help in seeking to simplify the Bill. I am sorry that on this occasion we do not feel that the result is quite as good as he hoped for.
§ Lord Boyd-Carpenter
The noble and learned Lord the Lord Advocate referred again to an issue which arose the other day on the 90-day provision. I should like to be a little clearer in my mind than I am as to what it is he has just said to us. Has he been telling the Committee that, even if this clause goes through as it stands, there will be a statutory 90-day period of limitation? And notwithstanding the fact that there does not appear to be any express power given to the Secretary of State to modify that 90-day rule, is there nonetheless somewhere to be found in the sub-section, or in the Bill, a power in the Secretary of State to override the 90-day statutory figure? I should be grateful if he would clarify that.
May I take one further point which I am sure he will deal with with his habitual kindness? He used the phrase which his noble friend Lord Belstead uses quite regularly to the effect that this clause gives an entitlement. It is of course riddled with provisions like, "If the Secretary of State thinks fit", and the rest 1400 of it. Am I to understand from what has been said now and earlier that, notwithstanding that phraseology, it would be possible for an aggrieved person to appeal to the courts? If such an aggrieved person sought to appeal to the courts, would he be put in the extreme position of having to establish that no reasonable Secretary of State could possibly have "seen fit", or would the merits of the matter be open on appeal to the courts? I should be grateful if the noble and learned Lord would deal with both those points with his habitual clarity.
§ Lord Mackay of Clashfern
So far as the first point is concerned, the power we are looking at in subsection (5)(b) is a power to shorten the period of two years. The 90 days is an interval which can occur within the period of employment which might be looked upon as trying to meet the two years. The point that my noble friend made on the last occasion—and I think the noble Lord, Lord Mishcon, also dealt with this—was that there might be a rather peculiar case in which the period happened to be just over 90 days for some special reason.
I agree that there is no power in this clause as presently drafted to cope with that directly. That is to say, there is no power to extend the 90 days. But of course one can see that this power might be made relevant to that by shortening the period under con-sideration so as to leave out of account the awkward period with the more than 90-day interval in it. For example, supposing that, right at the beginning of the two-year period under consideration, the person in question was out of employment for, say, 93 days, and thereafter everything was perfectly all right; he was working fully from then onwards. It would be perfectly open to the Secretary of State under the power in subsection (5)(b) to say not the full two years but the two years minus 93 days, and in that way get over the difficulty, at least in that case. That is what I had in mind.
§ Lord Boyd-Carpenter
What would happen if the 93 days came in the middle of a period and not conveniently at the beginning?
§ Lord Mackay of Clashfern
Again, subject to the circumstances as a whole—and it is a pure discretion—it would be open to the Secretary of State to consider making the two-year period so short that it would be the period after that awkward 90, 91 or 92 day interval had occurred. So if it was about the middle, the period to which he would actually shorten it might be just under a year.
§ Lord Mishcon
The noble and learned Lord always delights the Committee with his clarity and simplicity of mind. May I therefore ask him to tell me why, instead of going through the whole mechanics of the two years and the discretion, there is not a simple provision in the Bill wich gives a similar discretion to the Home Secretary to reduce the period of 90 days or, rather, add to the period of 90 days?
§ Lord Mishcon
That would seem to me, with my simple mind but not as clear a one as the noble and 1401 learned Lord's, to be a rather more advantageous way of dealing with the problem.
§ Lord Mackay of Clashfern
As I said earlier, it is obvious that this clause has to deal with a great variety of circumstances and if you deal with all the possible circumstances you will certainly sacrifice the clarity which the present clause has, and the more special circumstances you deal with the more difficult the whole thing will become. It is important to remember that there is an overriding and complete discretion to grant citizenship to a minor in Clause 3(1), and in my submission there is a limit to the number of subsidiary discretions that it is right to have, and subsection 5(b) is an appropriate one. I do not for a moment suggest that overcoming 90 days is the only purpose of that subsection; it is, rather, looking at the period and seeing whether in the circumstances it is a period that must be satisfied.
Coming to the second matter raised by my noble friend, it goes back to the first occasion on which the noble Lord, Lord Gifford, raised the issue in connection with the phrase "the Secretary of State thinks fit" where it first occurs, and it was also raised by my noble friend Lord Colville. The intention in Clause 3(2) is to confer an entitlement, and that is what is to be found at the beginning of that provision:A person born outside the United Kingdom shall be entitledand so on. The phrase "if he thinks fit" does not thereafter occur in the main provisions of that clause; the phrase "if the Secretary of State is satisfied" occurs, but the phrase "if the Secretary of State thinks fit", which is the appropriate phrase for a discretion, does not thereafter occur in the main provisions of Clause 3(2). Therefore, in Clause 3(2) the intention is that the facts, if they are established, should confer on the person in question an entitlement which he could raise with the court, and it not being a matter of discretion, he would not have to satisfy the very heavy burden, to which my noble friend referred, of overcoming a discretion by showing that no reasonable Secretary of State could have exercised his discretion in the manner exhibited in the particular case.
Within that, in order to deal with special cases, there is a subsidiary discretion in subsection (5), and that is why I said it was necessary to make as clear as one could what that discretion was because if there was a question of entitlement under discussion, then a separate test would apply if it was being sought to overcome in some way the exercise of discretion. But the discretions in subsection (5) are discretions in favour of the applicant, and therefore it is most unlikely that the applicant himself would want to challenge them, except possibly to try to say that the only reasonable exercise would be to have a shorter period in the case of paragraph (b) or a longer period in the case of (a), but it is in subsection (5) that that sort of test might be relevant. Once the result of that was established, the entitlement test would apply to the rest of the clause; and as the Committee knows, I have undertaken that we will look at the formulation of this to try to make it as clear as we can in the various contexts in which it occurs. I undertook to do that in answer to the noble Lord, Lord Gifford, much earlier.
§ Lord Gifford
While taking up a point just made by the noble and learned Lord, I will not go back to the concession he has kindly made about the "satisfied" formula, but he indicated that the "thinks fit" formula, which confers a pure discretion, might be challenged on the unreasonableness ground. That cannot be right if Clause 43 stays intact, and perhaps the noble and learned Lord would confirm that Clause 3(5) is one of the discretions which would be caught by Clause 43(2); that is, the discretion about which, if it were exercised against the applicant, the Secretary of State would not have to give any reasons and would not be subject to any kind of appeal or review.
§ Lord Mackay of Clashfern
Yes, I agree with the noble Lord, Lord Gifford, about that, when one takes account of the effect of the later provision. I was really attempting to distinguish between the kind of burden that ordinarily exists to overcome a discretion and the kind of burden on an applicant to show that he was entitled. To distinguish between those two was what I had in mind and I hope I succeeded in doing so.
§ Lord Geddes
I am grateful to my noble and learned friend the Lord Advocate for the very full explanation he has given, particularly on the last point raised by the noble Lord, Lord Gifford. I shall read with great interest the exact words my noble and learned friend used in his explanation and meanwhile beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 61 to 67 not moved.]
§ 5.8 p.m.
§ Lord Drumalbyn moved Amendment No. 68A:
Page 5, line 19, at end insert—
("( ) A person born outside the United Kingdom shall be entitled, on an application for his registration as a British citizen, to be registered as such a citizen if the Secretary of State is satisfied—
§ The noble Lord said: This is an effort to give the child of a British citizen by descent who is born outside the United Kingdom more chance of becoming a British citizen than is afforded by Clause 3(6). Subsection (6) taken with subsection (7) entitles a person born outside the United Kingdom, whose parents at least one of whom was a British citizen by descent at the time of his or her birth, to have an application for registration as a British citizen made on his behalf while he is still a minor, provided that both parents and the child have been living in the United Kingdom for the three years immediately before the applicaton, or, under subsection (7), if one of the parents has died before then, the surviving parent and the child have been living here.
§ These two subsections appear to be intended to cover cases not covered by Clause 3(2) and (3) which relate to the child born outside the United Kingdom of British citizens by descent, one of whom is engaged in relevant employment with a close connection to the United Kingdom. The characteristics of subsection (6) 1403 appear to cover those cases where the parents are employed or self-employed more or less for their working lives overseas, and in any case not in jobs which fall within the provisions of subsection (2) and (3). For these it seems that the requirement that application for registration while the child is still a minor, and after the parents and child have been living in the United Kingdom for three years or more ending with the date of application, is excessively onerous—and for this reason. If application is to be made while the child is under 18—that is, still a minor—the person in employment would have to give up his or her job overseas before the child is 15—that would be when the parents are, say, between the ages of roughly 37 and 50 at the latest—unless they are able to interrupt their life-work when the child is younger for at least three years, or to change their jobs entirely. Not many could do that.
§ Therefore, the amendment adopts a different approach and entitles the child himself, or herself, to make application after he, or she, passes minority if he or she has qualified in the United Kingdom to practise in any profession designated by the Secretary of State by order. I have in mind, for example, qualifying as a banker, a doctor, an engineer, in insurance, a lawyer, a manager with a bachelor of commerce degree, a scientist, a teacher, or whatever. Then there is the second alternative: or if he or she has been educated in the United Kingdom for four years at least. That is to say, the person has been sent home to complete his secondary education—I am speaking of a normal, typical case—and is then taken on as a trainee or an apprentice in a British company or association established in the United Kingdom, or in some other relevant employment in the United Kingdom, and has been employed in it for three years.
§ Nobody could say that with British citizens by descent as parents and such experience in the United Kingdom the person is not fit for British citizenship, though of course the Secretary of State could properly refuse the application if the person was, so to say, a bad egg. If the application was accepted, he would be a British citizen, but it would not follow that he would join his parents overseas or take any other job abroad. He might well spend the rest of his life in the United Kingdom. How absurd it would be if, with British grand-parents, he himself was not to be a British citizen—still more absurd if he was a stateless person. I assume that any children of his born in Britain would be British citizens—I hope that I am right in assuming that—by virtue of their birth in the United Kingdom, even if he married, say, a Guatemalan or a Korean. But it would be all the more astonishing if he himself remained an alien, or stateless person, while his own children were British citizens. Of course the Secretary of State might take pity on him and confer British citizenship on him under subsection (1) of the clause. But again he might not; nobody can tell. There is an inherent doubt here.
§ I dare say that I have not got all the details and permutations right, but at least I hope that I have said enough to show the Committee that we cannot remain content with the avenues open to the children of British citizens by descent to regain British citizenship by vindicating their determination to maintain a close 1404 connection with this country in the ways that I have outlined, or something along those lines. I again make the point. Here is a case where someone is not going to be qualified for British citizenship because as a minor application has not been made for him. Instead of that we are substituting professional training for practise in some profession or another, or schooling at home, plus being engaged in a job in Great Britain, and serving in it for three years. Those are the alternatives that I am putting forward, and if I may say so, they seem to extend the Bill in the right direction. I beg to move.
§ Lord Belstead
I am grateful to my noble friend for his clear explanation of this detailed and interesting amendment. I think that it raises problems and I should like to respond by trying to point out some of the problems as the Government see them. The normal avenue to British citizenship for an adult under the Bill is through naturalisation, unless the person concerned holds citizenship of the British Dependent Territories, or British Overseas Citizenship, or is a British subject under the Bill, or a British protected person, and then there is the entitlement to citizenship under Clause 4, which we shall come to shortly. An adult should be considered in his own right and upon the strength of his own connections with the United Kingdom.
Naturally in considering an application for naturalisation from an adult born overseas to a British citizen by descent, we would take into account the fact that the applicant's parent was a British citizen, but, frankly, once one is an adult, the status of one's parents cannot be decisive. The person would be considered on his or her own merits, and not entirely upon their parents, and this we believe is a fundamental objection to the amendment. Although my noble friend has put in some very interesting lines which would take the person concerned into citizenship, it depends initially on the fact that the person concerned is a child of a citizen by descent.
My noble friend might say that a different approach is justified with a person born overseas to a British citizen by descent, particularly if he has the links with this country specified in paragraphs (b) and (c) of the amendment. My noble friend has said that such a person will have links with this country through his parentage, his education, his employment, which justify conferring upon him an entitlement to our citizenship.
But for a moment I should like to consider the strength of the links that such a person will have with this country under the amendment. It might be said that the parent of the child might have had links with the United Kingdom through employment, but the parent simply failed to apply for the child to be registered under Clause 3(2) within 12 months of the child's birth. But we have specifically provided in Clause 3(5)(a) that there should be a discretion to accept applications made in this way up to six years after the child's birth. Although my noble friend dealt in great detail with practically every part of his amendment, in listening to him I was never quite sure why the application would not have been under made Clause 3, when it could have been.
On the other hand, it might be said that the parent 1405 had close connections with the United Kingdom but these did not fall within the ambit of Clause 3(2), and since the family never resided in the United Kingdom together, the child had no claim to registration under Clause 3(6)—the one about coming back to the United Kingdom. But as has been amply demonstrated, the ambit of Clause 3(2) as it now stands is very considerable, and where a family has real connections with the United Kingdom, but for some reason cannot meet the requirements of Clause 3(2), and the child does not qualify under Clause 3(6) (which is the coming home part of the clause), then there is always the avenue of registration under the discretionary power in Clause 3(1)—the power which has always been in the law of the land since the 1948 Act.
May I now turn to consider the ties with this country set out in paragraphs (b) and (c), one of which the applicant has to hold in his own right. First, there is the requirement in paragraph (b) of my noble friend's amendment that the applicant shall have qualified in the United Kingdom to practise in a profession designated by the Secretary of State. Of course, it is quite true that the professions which my noble friend mentioned indicate a significant period of training, which I presume under this amendment would have to be undertaken in the United Kingdom.
But we are dealing here with someone who has been born overseas whose connections with the United Kingdom, or through his family, are, as I have demonstrated, almost certainly very slight; otherwise, there would be the applications under Clause 3. Once that person has completed his or her training, he or she may well leave the country and return to the country of birth, and there is nothing in the amendment to stop the person doing that. I do not deny the formative effect of our institutions of higher education and professional training; and, of course, I do not deny for one moment the absolute right—indeed, very likely the desirability—of somebody, having trained here, to go away again. But it is a very different thing from saying that that is a good thing to do to saying that that should as of right confer citizenship upon the person concerned.
Secondly, there is the alternative requirement in paragraph (c) of the amendment. This, I think, is rather closer, and it is the bit which has two limbs. First, the applicant has to be educated here for at least four years; but if then a child, that person will presumably have been here on his own. Otherwise, if the parents were here, of course, he would have qualified under Clause 3(6). But if we are talking about a student who is coming from overseas, although his parents are citizens by descent, he is presumably a person coming and attending university or polytechnic here and then getting a job, albeit with a United Kingdom-based firm, and then going away again, perhaps for the whole of the rest of his life.
Again, although I do not doubt for one moment that such a person may be an admirable person, I really do not see that that coming back, being educated and going away again is really a basis for the conferment of citizenship. My noble friend raised an extremely important point that such a person might be stateless. I would hope that in an instance where that might be the case Schedule 2(4) would cover such a person.
1406 I hope I have dealt with the aspects of my noble friend's amendment which are important. I will certainly look very carefully at my noble friend's amendment again, because there really is a great deal in this and my noble friend's explanation was detailed and close. I would ask my noble friend, for his part, perhaps, to have a look at the Government's reply before deciding what it is ultimately that he would wish to do about the amendment.
§ Lord Drumalbyn
I do not want to hold your Lordships up on this but may I point out where, in the case of one or two things, I think my noble friend has not quite seized what I was after. Really, the whole point of making this effort to extend the avenues to British citizenship is that there are wide areas that are not covered in the earlier part of the clause. My noble friend seems to have a fixation about being employed in British industry, for example; as if it were that you could not maintain your connections with this country unless you were employed by a British firm. Surely that cannot be correct. That is one of the main reasons why I have drafted my amendment in this way.
My noble friend said in terms that the connections with the United Kingdom were very slight. It seems to me that this is by no means so. Here you have parents who have themselves, in all probability, been educated in Britain, and they then go abroad. Mark you, I agree that this is not necessarily so, but this is the sort of case I am taking: the parents have been educated here, they go abroad, they are not employed by a British company but they do maintain their links, possibly by coming home from time to time and having holidays in this country; or, in the second leg of the alternative, they send their child over to have its education in this country. But the point is that, not being in relevant employment, they cannot use the avenue laid down in the first part of this clause.
Another thing I should like to draw to the attention of my noble friend is that he has assumed that the child who comes over and, on passing his minority, either qualifies himself professionally or joins a firm in Britain to get further training and experience, will be going away again immediately. Of course, it is possible he may wish to go abroad, but having got his close connections with Great Britain I see no reason why he should not go abroad as a British citizen. I really can see none whatsoever. But I would guess that at least as many people who have the sort of pattern of life as indicated in my amendment would not be going abroad again. I have noticed that in many families there is a curious alternation, so to speak—one generation goes abroad, the next stays at home and the next goes abroad again.
But what is of great importance is that from this country we should have people with professional or technical training going out in a fairly steady stream so as to maintain the connections of this country with the rest of the world, and the rest of the world with this country. This is the whole point of my amendment; but I would lay great emphasis, at the end, on the enormous importance that people who do this attach to their remaining British and their children remaining British. I do not suppose that by any stretch of the imagination I could have got the conditions exactly right in this amendment, but I do com- 1407 mend it to my noble friend for further study. He has said he will look at it, and I am sure he will. I see the noble Lord opposite rising in his place, so I give way to him.
§ Lord Mishcon
The noble Lord, Lord Drumalbyn, is courteous, and I assure him that I rose only in order to say that my noble friends and I have much sympathy with this amendment. I would not have jumped up in order to say anything hostile to what he had said. It is right that a lot of consideration should be given to widening the sphere that we are discussing. Perhaps I may add just two points to what the noble Lord said in the hope that the Government, in considering this matter again, will take them into account.
It is obviously perfectly true—and this has been said already—that we need to encourage people from this country to go abroad, spread their skills, and do it for the benefit of this country. That is right. But equally it must be true that if you have people of merit you want them to come to this country, and they are not likely to come here unless they know that they can be part of the British family and can be admitted to British citizenship. Therefore, that obviously is a very good reason for seeing that the clause is widened.
There was one point that I did not understand in the reply of the noble Lord the Minister, and it was this. I thought he was saying that it was open to such a person to apply for naturalisation. I believe I understood him correctly to say that. This is a vicious circle, because I am not sure, unless I am told that I am wrong, that there is an automatic right to enter this country by such an individual, who will have to reside here for a minimum period of time before he can apply for naturalisation, and who furthermore during that time will have to have unconditional permission to reside here. This is a vicious circle because I do not think that any of us can by any means take it for granted that there will be permission to do anything else but visit—and certainly not to stay—for the requisite period. One knows the conditions on entry to this country are usually made clear: that the person concerned is not permitted to take employment here or is limited in his stay here for a certain period of time.
These are two points which the Government, in their kindness, may bear in mind when considering what on the face of it appears to be a very worthwhile amendment. It may be that there are some problems that we have to get over. The spirit of the amendment is obviously one that my noble friends and I appreciate.
§ Lord Belstead
When my noble friend felt the Government have a fixation about tying an entitlement to British citizenship by descent to employment in British firms, this is not borne out if one reads Clause 3. The whole point of widening the scope of Clause 3 was that it would give an infinitely wider scope than that particular interpretation which is the impression which my noble friend had.
If somebody in the circumstances that he envisaged comes back to this country, he also asked, why is it that they cannot then go away again but take with them the conferment of British citizenship? My noble friend said that he did not think that such a 1408 person would necessarily go away immediately from these shores. So often families work on a basis of one generation away and another generation at home. Humanity happens to work out like that.
We are talking about a situation where we have increased enormously the scope of the people who can transmit their citizenship as of right by birth by bringing within the rights of transmission women who have never been there before and also those who are not only born but who are naturalised and registered as citizens. This is going to mean that the people who can transmit their citizenship to the next generation by birth are going to be increased enormously.
Without going over old ground again, it is basically for that reason that not only the present Government, but the previous Government in their Green Paper reached the conclusion that the right thing to do was to say that citizenship could be transmitted as of right to the first generation and, after that, rules should be made. Coming now to the present Government and the White Paper, the rules should be either through relevant employment or through the other avenues of families who return to the country or through the general discretionary registration power of the Secretary of State under Clause 3(1) which has always been in the law ever since 1948.
Taking into account what the noble Lord, Lord Mishcon, said, I shall look at the detailed amendment. It necessitated a lot of research so far as the Government were concerned and my noble friend's remarks were lengthy and detailed. If he is prepared to look at my reply, I shall be prepared to look at his remarks.
§ Lord Mishcon
So that the Committee are informed of the validity or otherwise of the point could the noble Lord deal with naturalisation? He said that one of the solutions to the problem regarding the amendment was naturalisation. I tried to point out that this was a vicious circle. Could he deal with the point about right of entry and residence of an unconditional nature which is required before there can be a naturalisation application?
§ Lord Belstead
I was more downright; I was saying the people that my noble friend wishes to deal with in the amendment who will be adult should become British citizens by naturalisation. That is the way which is favoured under the Bill. I am not trying to avoid replying to the question, but we are going to come to these matters on Clause 5 and Schedule 1. This will arise again and again. To suggest in some way that naturalisation cannot be an avenue to citizenship because of rules about entry is to suggest that nobody can ever become naturalised. That is not the case. The avenue for naturalisation is going to be there for people who are able to enter the country under the immigration rules and fulfil the requirements for character, language and residence. Therefore, it is perfectly reasonable for me to suggest that the people who my noble friend Lord Drumalbyn has in mind should have—because they will be adults and not minors—the avenue of naturalisation under the Bill.
§ Lord Drumalbyn
I am grateful to my noble friend and the noble Lord, Lord Mishcon, for what has been said. I hope that my noble friend will pay great 1409 attention to what the noble Lord, Lord Mishcon, said. Perhaps my noble friend in the course of studying this amendment will have regard to the ways in which the people, about whom I have been talking, can gain entry into this country. Will they be given sufficient time in getting the right to stay here to be naturalised because their parents were British by descent? This would greatly ease the situation.
My noble friend has not quite seized what the whole of my clause is about because he said that a method is provided in the second part of Clause 3. People who have either their own businesses abroad or are employed in foreign concerns will have to retire from those early in order to come out of those jobs if they are going to avail themselves of the three-year period of residence during the minority of the child. One way of easing this would be to return, for the purposes of this Bill, to a minority of 21. It would give us slightly greater scope. The fact is that this will not happen.
I can envisage that parents may be prepared to come over with the child when he first comes to this country and no doubt he will be allowed in then. But, unless there is some other provision made, he may well be subjected to a time limit for a stay in this country to prevent his being naturalised. I find it very difficult to stomach—I am sure that parents in this position would—the idea that they have to come back to their own country to get their son naturalised. It is an extraordinary position. I hope that we shall find some way round this and I look to my noble friend to do so. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.39 p.m.
Baroness Elles moved Amendment No. 69:
Page 5, line 23, after ("terminated") insert ("or if his father and mother were living permanently apart,").
§ The noble Baroness said: The purpose of this amendment is to obtain an interpretation of the word "terminated". Could my noble friend tell the Committee whether it covers all cases where a marriage has irretrievably broken down and the spouses are living permanently apart or is it strictly limited to those who have been divorced or to those whose marriage has been annulled? I would ask my noble friend if the operation of this clause, for instance, could be invoked in a case where a parent has not been divorced but has been granted the legal guardianship of his or her child.
§ The definition of the word "terminated" is important because sadly, but not surprisingly, it is a point that has not been raised previously by the right reverend Prelates, but it is a matter of discrimination on the grounds of religion. There are many, both of the Roman Catholic faith and of the Anglican communion—and, in parenthesis, despite the published press reports of debates in the General Synod recently as to the value of the words "till death us do part", many of the Christian faith do believe that their marriage vows are for life and therefore they are not able, on grounds of conscience, to divorce their partner, or indeed their partner may be of the Christian faith and believe that they cannot divorce Therefore, I would ask my noble friend whether he does not think that 1410 the word, as it is in the Bill at the moment, does not act discriminately against an individual—and, after all, we are talking of individuals in this Bill—who may have a child and who may want to come back to this country where his or her grandparents are living and where there is a close connection with the United Kingdom but, because of not being able to divorce, they would be excluded from the operation of this clause.
§ Following on that, in order to save the Committee's time, I would be grateful to my noble friend if, at the same time. he could comment when he gives the definition of the word "terminated", if it is what I believe it to mean, whether this might be a category of persons who could come within the purview of Clause 3(1) and be considered under the discretion of the Secretary of State, particularly where there might be some certificate from a minister of religion in order to vouch for the reasons why that individual has not been able to divorce. I beg to move.
§ Lord Gifford
I support the amendment moved by the noble Baroness, which I think raises a lot of important considerations. Regarding Clause 3, this is the first time we have been able directly to consider Clause 3(6), and it is a very important clause. It is going to be the main avenue by which people who have been born abroad and married abroad and who want to come back and bring their family back to Britain will be able to register their children as full British citizens. It is not, I suggest, in perfect form, and the amendment raises the main defect in it.
There are going to be a lot of cases—are there not?—involving a woman (I speak particularly of a woman) who has been born abroad and who has married abroad a foreign national, whose marriage has failed and who then wants to come back to Britain with her family and take up residence here. She returns and does not get divorced either because divorce is against her religious principles or because divorce is impossible or because the husband will not consent. The years go by and the eldest child begins to approach the age of 18, which is the cut-off point. Beyond that age the application will be no good. In this sort of case the husband will often not wish to consent to the child becoming a citizen of this country. He may be proud of his own citizenship and in any case, because of the breakdown of the marriage, may not be keen to allow a change of citizenship for his children. So the suggestion that the conditions should be widened to allow not only for one party's consent to be dispensed with on a divorce but to allow it to be dispensed with on a permanent separation is absolutely right, and I hope that the Minister will give this favourable consideration.
The Lord Bishop of Peterborough
I hope that the Minister will either define "terminate", which might terminate the debate, or accept the amendment which the noble Baroness has moved. It seems to me utterly reasonable and the only consolation any of us has, sitting in any kind of assembly, whether it be in Synod, in your Lordships' Committee, or a parochial church council, is to take refuge in Dr. Johnson's dictum,that which is not formed by reason cannot be destroyed by reason".1411 As this is utterly reasonable, I cannot see that the Minister can continue to resist it and continue to have sleepful nights. I very much hope that the Government accept this amendment, which covers far more than it says, and which would leave in no doubt many people who find themselves abandoned with no home, no citizenship and not much clear hope for their children.
May I ask my noble friend about the position of the common law wife? After all, the common law wife is now recognised in this country. I do not know whether they would be qualified or considered illegitimate under this clause. I should like to know the position with regard to the common law wife who has been living with a man for many years in this country and has children and what would be the position of the children, because much of this Bill deals with married women.
§ Lord Boyd-Carpenter
I should like to ask my noble friend Lady Elles why she has inserted in the amendment the word "permanently". Is she not putting up a considerable obstacle in the way of the applicant? The fact that the parents are living apart is easily demonstrable but who is to know, after they have been living apart for some time, that they may not come together? Therefore, to include the word "permanently" must put a heavy onus on the applicant. I wonder whether the amendment would not be much better without it.
§ Lord Belstead
This amendment seeks to enable a child to be registered if he or she is born overseas to a British citizen by descent and later comes to this country with one of the parents to live. Subsection (6) as it stands at present requires the child, before he can acquire an entitlement to be registered, to come to the United Kingdom and live with both parents unless, for reasons which are set out in subsection (7), he is effectively part of a one-parent family.
The provisions of subsections (6) and (7) are designed to accord an entitlement to registration where the future of the children concerned can reasonably be considered to lie in the United Kingdom. This amendment could cover cases where this would not be so. For instance, it would be possible for the family to make arrangements for one parent to reside here for three years solely to enable the child to acquire British citizenship, and the family would then be able to re-unite on a more permanent basis abroad. That would be unsatisfactory and would certainly be counter to the purpose of the Bill, which is to confer British citizenship only on people with real connections with this country.
I do not mean to be flippant in any way, but, arising from the intervention by my noble friend Lord Boyd-Carpenter, I may say that there are sometimes difficulties in deciding on the particular position which my noble friend Lady Elles has in mind. When I looked at my noble friend's amendment, my mind went back to a rather different situation. It certainly used to be the law—I do not know whether it is still—that if a voluntary school were to be closed and the school sold, the site had to be offered back to the original 1412 donor, unless the donor could no longer be found.
I remember a case, which is probably apocryphal, of such a school, whose site had been donated by the family of my noble friend Lord Salisbury; and the time came when the number of pupils fell away and the decision to close the school was taken. Entirely by an oversight, the existing Marquess, when that happened, was not consulted about the matter. When the people concerned were asked why they had not consulted the then Marquess of Salisbury the answer they gave was that he could not be found!
I believe there is a genuine difficulty in these cases and the Government believe that the solution is that which was mentioned by my noble friend Lady Elles at the end of her remarks. These are precisely the sort of cases which ought to be covered by Clause 3(1), which contains the general powers to register. It is worth saying, in case your Lordships' Committee feel that this answer is one that has suddenly been dreamt up by the Government spokesman on this particular Bill, that this power of the Secretary of State is in fact a very old one; it has been the law since the 1948 Act. It is used in deserving cases and I join with the right reverend Prelate the Bishop of Peterborough in saying that these are exactly the sort of cases that ought to come under the general registration powers of Clause 3(1).
§ Baroness Birk
What has just been said by the noble Lord the Minister makes me feel very uneasy. This particular subsection is both very wide and very narrow in its scope, and we are back again to what the Secretary of State "thinks fit". I should not have thought that that was good enough and it certainly does not answer the point that was raised by the noble Baroness, Lady Elles. I do not believe the noble Baroness got an answer to the question she asked concerning the definition of the word "terminated". It appears to me that "terminated" must mean that the marriage has come to an end, and therefore it means that the couple have been divorced. It follows from that that the point she made about couples being separated because of religious reasons is very relevant to this matter. There are also cases where one of the partners may go off to live with somebody else, and although in some cases there may be quite an amicable separation, in other cases one spouse may not know where the other spouse is and cannot get in touch. Neither can one fail to take into account those cases where the child's entitlement is used as a weapon in a marital quarrel. This is also something which happens between husband and wife and it seems to me to be quite wrong that the child should suffer.
I believe that the noble Lord, Lord Boyd-Carpenter, had a point when he raised the question of whether the word "permanently" should appear in this subsection. While the noble Lord was speaking it occurred to me that there could be a case where the parents are still married and where there is no intention of breaking up the marriage. One of the parents might come to this country with a child in order to acquire a home or to arrange for the child's education. Therefore, both the parent and the child might stay here for some time. It is clear that the family's home is in the United Kingdom—establishing the rather mystical "close connection" that covers the case— 1413 but the family will still be "separated", even though the separation would not be of a permanent nature. There may also be cases where the wife will return home with the child for some time in order to look after an elderly relative, for example. That does not mean that the marriage has been terminated or that there has been a permanent separation.
We certainly support this amendment because it appears that if the clause is left as it stands, with only what I must call a dubious proviso in subsection (1), then the clause can only work to the disadvantage of a number of children. The number of children so affected might not be very great but that is immaterial; it is an injustice even if it is an injustice affecting only one child. I do believe that this amendment should be supported. The Government should not rely on Clause 3(1) but should write something clear into the Bill, or if the Government reject this amendment and the noble Baroness intends to press it, we will certainly support her.
§ 5.55 p.m.
§ Lord Avebury
It does seem to me wrong continually to rely on the discretion of the Secretary of State in Clause 3(1). I appreciate that, as the noble Lord the Minister said, this power or something very similar to it has been in our legislation since as far back as 1948, but surely we should limit as much as possible the number of occasions when one wants to leave it to the Secretary of State to exercise a very wide power of this kind. Even though the amendment proposed by the noble Baroness may not be in the precise form that the Government would like, if the Minister is prepared to stand at the Dispatch Box as he did and say that this is the sort of case where the Secretary of State would exercise his discretion, then he could equally well give instructions to the parliamentary draftsman to produce a form of words which gives effect to the wishes of your Lordships' Committee. I am sure that the noble Lord has heard enough from all sides of the Committee to realise not only that the amendment is welcomed universally but that many people would prefer to see something even wider.
I personally agree with what was said by the noble Lord, Lord Boyd-Carpenter, when he pointed out that permanent separation would be very difficult to test and that if the parents were separated for the three-year period provided for in subsection (6), that would be enough of a test to be written into the Bill. But if one parent returned to this country leaving the other parent overseas, and remained here for the qualifying period without being accompanied by the other spouse, then I should have thought that that was a separation that justified conferring citizenship on the child without the presence of the other parent. Whether there was the possibility of reconstructing the marriage at the end of the three-year period seems to me to be quite irrelevant as to whether or not citizenship should be conferred on the child.
I was disappointed that the noble Lord the Minister did not reply to the point raised by the noble Baroness, Lady Vickers. It is quite usual these days for couples to live together without getting married and for them to have several children, although this may be more common in some communities than it is in others. In this day and age I do not believe that we can write 1414 into this Bill, which deals with the conferring of privileges which might be vital to the future of people's lives, provisos which make those privileges conditional upon their parents having solemnised their union in a church.
I hope the Minister will take this back. I agree with what was said by the noble Baroness, Lady Birk, and maybe this is a question that could be returned to at Report stage if we do not have precisely the right wording now. But unless some undertaking of that kind is given, I hope that the noble Baroness will press her amendment, and if she does we on these Benches will certainly support her.
§ Lord Belstead
Since I have been guilty of not replying to two questions, perhaps I may answer now. The definition of "terminated" is, of course, a legal termination and no other definition applies. A legal termination is what is meant by the word "terminated" in this subsection in the context of this Bill. With regard to the question asked by my noble friend Lady Vickers, in a situation involving a common law wife the child would benefit from the mother's citizenship but not from the father's citizenship. I believe the difficulty which the Government see is that each case would probably be different and would have to be the subject of value judgments. In making his remarks the noble Lord, Lord Avebury, made a series of value judgments. The noble Lord is absolutely at liberty to make those judgments, but even if one were to agree with all that was said by the noble Lord—and I do not know that I did—it would be very difficult to write those value judgments into the statute. That is why I personally believe that these are cases which should be dealt with under the general discretion of Clause 3(1). Whether that is also the view held by my noble friend Lady Elles I do not know, but I think the moment has come to find out.
§ Lord Harmar-Nicholls
Before my noble friend decides what to do, may I say this? I apologise for not being here earlier, but I was in another committee. When I saw that my noble friend's amendments were being called, with both of which I have a lot of sympathy, I wanted to come in. I would not have added my voice—my vote would have been sufficient, if it were called for—except for the defence which my noble friend Lord Belstead has put up, which I find particularly irritating. In his first reply, he explained why this amendment could not be accepted. In some intricate way, somebody may be able to turn and twist it and one half of the family may be on the Continent, while the other half is here. That kind of defence, putting up this mythical, convoluted and intricate argument to get around something, is disturbing, because it is no answer to the possibly hundreds or thousands who, for quite genuine reasons, need the kind of protection which this amendment would give.
I am reminded of the lady living in a house, who objected because she could see somebody doing something in a window that she found rather unpleasant. She wanted the authorities to have a look at it, so the police came round and said, "But you can't see in the window where you say these awful things are happening." She said "Can't you? You bring up a table, put a chair on top, stand on a box on top of that and 1415 then you will be able to see." I hope that that rather convoluted explanation of the kind of thing that may happen—and it needs a lot of imagination to get to the point where my noble friend did on this—is not going to be brought in again on such practical questions as this amendment brings to the fore.
§ Baroness Elles
I am extremely grateful for the support which I have had from all sides, including the noble Baroness, Lady Birk, on the Opposition Front Bench and the noble Lord, Lord Avebury. The point that I wished to make was that, as the Bill is now worded, it is giving grounds for disagreement on the basis of religion and I wish to stick to that point. That is precisely why I put in the word "permanent". I am thinking of cases where there can be a judicial separation, but in legal terms—and in accordance with the definition of my noble friend, which I accept—it is neither divorce nor annulment of the marriage.
I accept that in a Bill of this kind there will be a lot of difficulties. People either know of, or imagine, all kinds of cases where the provisions of this Bill can be got around and where it can be severely abused. I think that we all accept that. But my noble friend the Minister has been made aware of the kind of case that I am thinking of, and I want assurances from him—not now, but at the next stage of the Bill, or in writing that, particularly, those women who have children abroad, and of whom they are given legal guardianship, can bring them back to this country.
We have all, particularly in this party—and I would remind my noble friend of that—made enormous studies of the rights of one-parent families, and have made all kinds of recommendations for their protection, whether they live in this country or in another country. I think that we as a party—and I speak now from the Conservative Benches—should not be seen to be failing in looking after those who may be in distress in any other part of the world outside the United Kingdom. On those grounds, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.3 p.m.
§ Lord Drumalbyn moved Amendment No. 70:
Page 5, line 30, after ("them") insert—
("( ) If his father and his mother both died before that date, the reference to his father and mother shall be read as a reference to his guardian.").
The noble Lord said: This is the point where it appears that a gap has been left in the Government's proposals. They are talking here of one of the ways of acquiring citizenship, and paragraph (b) of subsection (6) states as one of the requirements,
that that person and his father and mother were in the United Kingdom at the beginning of the period of three years ending with the date of the application and that, in the case of each of them, the number of days on which the person in question was absent from the United Kingdom in that period does not exceed 270".
§ Subsection (7) goes on to state what happens if the father or mother are dead. It does that from two points of view: first, from the point of view of the length of time, to see whether the three years' residence in this country has been fulfilled before the application 1416 is made; and, secondly, from the point of view of the consent of the father and mother to the registration, where one of them has died.
§ The obvious question to ask is: what happens if both of them have died? This can give rise to many different questions. I suppose that, in most cases, the natural thing, if the family was living abroad and both parents died simultaneously, would be that the child would be sent back and then would be in the grotesque postion of, probably, being looked after by a grandmother or grandfather, both of whom would be full British citizens, while the child would be stateless, I revert to that once again so as not to let the matter pass.
But that is not the main point of the amendment. The point of the amendment is to find out what happens in a case like that. How is the child to get an application through for registration and so become a British citizen, if both his father and mother are dead? That is why the amendment says
If his father and his mother both died before that date, the reference to his father and mother shall be read as a reference to his guardian".
I do not know whether that is the correct form, or whether it will work in practice. I beg to move.
§ Baroness Birk
It certainly seems to me that this amendment, too, should be supported, because I think the noble Lord, Lord Drumalbyn, has shown us that if both the parents die the child is not only in great personal and tragic difficulties but also in great citizenship difficulties. The noble Lord explained the amendment so well, that I shall not rehearse these points again. But, in addition, it seems that if the mother of an illegitimate child dies the child will have no right to citizenship without this amendment, because the relationship that is necessary for citizenship of an illegitimate child is through the mother. Therefore, if the mother dies there will be no entitlement. But if there is a reference to his guardian and the mother dies, the illegitimate child will also have a right of citizenship by way of the guardian. I shall be glad to hear what the Minister says in reply to those points.
§ Lord Mackay of Clashfern
As has already been pointed out, the purpose of subsection (6) is to provide a basis for deciding that a person born outside the United Kingdom has a sufficient connection with the United Kingdom to be entitled to citizenship. The nature of the connection is three years' residence in the United Kingdom, subject to qualifications, with that person's family—father and mother, if they are both alive. As my noble friend Lord Drumalbyn has so clearly pointed out, the provision in subsection (7) is designed to deal with the situation where the father or mother have died. If both father and mother have died, then this method of demonstrating connection is not open, because, in the nature of things, the family, sadly, is not there to have such a connection.
Certainly, I strongly sympathise with the matter which my noble friend has raised. His solution is to refer to the child's guardian where the child has lost both parents. It is clear that, where the family have come back, there is certainly sufficient connection. I am not sure that it can safely be said that there is sufficient connection in the case of a child who has lost both parents, and who is being cared for by a 1417 guardian. The guardian need not himself or herself be a British citizen, nor need the family of which he or she forms a part have established itself in this country. In many cases these requirements will no doubt be fulfilled, but not in all. It does not follow, just from satisfying the test of my noble friend's amendment that they would be satisfied. So far as I know, it is not provided in our nationality law that a child should derive any entitlement to citizenship from a person other than a parent. The introduction of the guardian would certainly be a novelty in this area.
The noble Baroness, Lady Birk, has pointed out that there is also a problem of the same kind in a situation where an illegitimate child has lost his or her mother. As I said earlier, it is next to impossible to cope with every case. It would seem to us that cases of this kind are best dealt with under the general discretion. In some circumstances, it may well be quite unnecessary to think of imposing the necessity to have the guardian there; the guardian may arrange for the child to come back and to be as permanently in this country as if the guardian were there, although the guardian himself or herself is not in this country. So it does not seem to be a particularly relevant consideration regarding the question of the connection between the child and this country.
For these reasons, it would be best, in our view, to leave this sort of special, though sad case to the exercise of the general discretion. There is a point on the form of the amendment to which I should draw attention. The amendment comes after subsection (7)(b) on page 5 of the Bill. Therefore, the reference to which the amendment refers is the reference to subsection 6(c) above: that is, to the question of consent. One can see that in relation to questions of consent the guardian may be important to some extent, although what I have said would apply there. However, I am wondering whether my noble friend intends this reference to extend back to subsection (6)(b) as well. I rather think so from what he said. Although I strongly appreciate the particular case to which my noble friend has referred, in the light of what I have said I hope he may feel that the best answer is to put it under the general discretion.
§ Lord Mishcon
If there is one phrase which occurs in your Lordships' House more than any other when dealing with a Bill it is this: "What is said in this House is one thing; what is engraved on the statute book is another". Perhaps I may be forgiven for using those words again, which are so often repeated, when one hears the noble and learned Lord, quite understandably, and the noble Lord the Minister, again quite understandably, refer us on each occasion to the benefits of Clause 3(1), which is the discretionary power of the Secretary of State, embedded in our statute book since 1948, to cause to be registered as a citizen any minor.
What worries me and, I believe, may worry other members of the Committee is that we are referred to it when we deal with the various hardship cases. And we are referred to it, I am absolutely sure, with absolute sincerity. I do not doubt that for one moment. However, in order that we may do something affirmative, is it possible that there could be some document, some leaflet, some list of precedents set down in the 1418 Home Office which said that the sort of way in which the Secretary of State would be expected to exercise his discretion would be in the following types of cases? And they could be given by way of examples. Obviously they would not be limited to those examples. They could be culled from the discussion in this House, from the discusson in the other place which took place in Committee and, no doubt, from the experience, the precedents which occurred in the past regarding the exercise of this discretion under the 1948 Act and subsequently.
If we could have an assurance from the Government that at least such a pamphlet, such a document could be considered, I believe that many of us, whatever be the hour at which we go to bed tonight, would go to bed that much happier. It would not then be just a question again and again of a reference to Clause 3(1): this is the sort of case which the Secretary of State might well consider. There would be about it something of a more permanent nature. I think that then we should feel that we had done a job, and done it properly.
§ Lord Drumalbyn
Again I am grateful to the noble Lord, Lord Mishcon, for what he has said. The idea which he has put forward is excellent, and I hope that it will receive consideration. My noble and learned friend has dealt with the matter very sympathetically but I have the feeling that he has done it in a case where the Government had, so to speak, three trays: in, out and too difficult, and that this went into the too difficult tray. I still feel that the way in which this would work out in normal circumstances if the parents died when they were abroad and had remained in touch (as will happen in most cases) with their relatives in this country is that a relative would go out from this country, collect the child, bring it back and probably have it adopted by somebody. Probably this would be a very good solution, which would give rise to another circumstance.
As I understand the Bill, the child would take its nationality from the adopter and that would get over the difficulty very nicely. In other cases it seems that, somehow or another, provision should be made for the attention of the consul, the high commissioner or whoever it may be in the various countries to be drawn to these cases and for appropriate action taken. One would hope that in the end the child would be able to get British nationality, if it was appropriate in the circumstances. I agree that this is a very difficult problem. I put down this amendment simply because there was an obvious gap and because in many cases a guardian was the obvious person to be a sort of ad hoc rather than a legal guardian. I beg leave to withdraw the amendment.
§ Lord Mishcon
In view of the fact that it appears that my suggestion met with some support, I wonder whether I am in order to ask the noble and learned Lord to give it favourable consideration.
§ Lord Harmar-Nicholls
My noble friend said that he thought the suggestion made by the noble Lord, Lord Mishcon, was excellent. I think that it is the opposite of excellent. The idea that some pamphlet can override what is written into a statute, the idea 1419 that a discretion which you are giving to the Secretary of State has got to be confined to some pamphlet which perhaps has been drawn up years before he has to apply it, is deplorable. The strength, as I have argued of Clause 3(1) in giving the discretion to the Secretary of State is that he can take into account the conditions which apply when he gives his decision. A pamphlet which was drawn up at the time we approve this Bill and make it an Act would, very likely, be out-of-date. It is a departure which I would deplore.
Some advocates are called great pleaders. The noble Lord, Lord Mishcon, is a great persuader. I am terrified when he uses his great power of persuasion to suggest this innovation. It is full of danger. Now that he has called for an explanation, I hope that the explanation which my noble friend will give will not repeat the word of my noble friend Lord Drumalbyn, who said that his idea was "excellent".
Lord Home of the Hirsel
I am attracted by the proposition of the noble Lord, Lord Mishcon, but we are dealing with cases which will arise years ahead where I do not think one can foresee the circumstances. I should not like the Secretary of State to be hampered even by some pamphlet which he put out indicating the kind of guidance which he would give. On the whole, therefore, I agree with my noble friend rather than with the noble Lord opposite, though with some reluctance.
§ Lord Mackay of Clashfern
Not even the Secretary of State can foresee all possible cases and therefore there is some difficulty, as my noble friend Lord Home of the Hirsel said, in laying down in a pamphlet how he proposes to exercise his discretion. I agree that it might be useful sometimes to know how he had done it, but unless one could have a full record of all the facts one would be in the same kind of difficulty as in trying to compare sentences imposed by different magistrates on different cases from newspaper reports, where not all the facts are set out.
I would remind your Lordships—just in case your Lordships might have forgotten it—that in the White Paper the Secretary of State indicated in very broad terms the way in which his discretion to register minor children is exercised. In paragraph 78 of the White Paper he says:In exercising his discretion he takes account of the citizenship of the parents, the place in which the child is living and is likely to live and other relevant matters and in considering an application on behalf of a child who is approaching the age of 18 he also has some regard to whether the child would be likely, on reaching that age, to satisfy the conditions required of an adult applying for naturalisation or registration at discretion".I respectfully suggest that that is a very succinct but fairly widely embracing statement and I should have thought that it might satisfy at least my noble friend Lord Drumalbyn.
§ Lord Mishcon
I should never have spoken for a second time, and if I did I should have been ruled out of order immediately, because up to that stage it looked as though I had the support of the Committee but my second intervention seems to have produced another reaction. All I was asking for was examples of cases in which the Secretary of State might exercise his discretion. I will say no more.
§ Lord Boyd-Carpenter
I hope the noble and learned Lord will give a little more thought to this. We are getting case after case in which the noble and learned Lord or the noble Lord beside him says, "Oh yes, this is a hard case, it is an obvious case, and therefore I think is probably one for discretion". That is said in good faith, but as has been pointed out it is an assurance which has no legal value whatsoever. It cannot be quoted in any court and it is not binding in any sense. As we are continually being reminded, we are dealing with a clause which gives an entitlement. If an amendment is put in, there is the entitlement and there is something to argue about if a future Secretary of State refuses a request. But in the light of what has happened the alternative, so agreeably offered from the Front Bench, really amounts to very little at all and if we are not to have in some quotable form an assurance that these cases will be covered it may well be a temptation to some noble Lords to press the matter to a Division to try to put the provision into the Bill so that there would be something which gives an entitlement.
§ Lord Drumalbyn
That is perhaps something for the next stage of the Bill. There are two separate ways of looking at this. My noble and learned friend spoke about the way in which the Secretary of State proposes to exercise his discretion, whereas others have spoken about the sort of cases in which he might be called upon to exercise his discretion, which I think is more what the noble Lord, Lord Mishcon, had in mind.
§ Lord Drumalbyn
I have no doubt that my noble and learned friend will consider this again and individual Peers also no doubt will consider it, but at the moment it looks as though it is too difficult, and therefore I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.25 p.m.
§ The Earl of Bessborough moved Amendment No. 71:
Page 5, line 32, at end insert—
("( ) A person born outside the United Kingdom shall be entitled, on an application for his registration as a British citizen made while he is a minor, to be registered as such a citizen if the Secretary of State is satisfied
§ The noble Earl said: As a former Member of the European Parliament and a colleague of my noble friend Lady Elles, I welcome the opportunity to move this amendment on our joint behalf and indeed on behalf of certain noble Lords opposite. I may say that I move this in no sense of hostility to my noble friends on the Front Bench, or indeed the Government. I am told that not having spoken to this Bill I should declare an interest, as others have done, in that my mother was French, my daughter is married to a distinguished scholar of Greek nationality and my niece is the wife of a young Italian banker. Also, like other noble Lords I have many friends working in Brussels and elsewhere in many firms within the European Community.1421
§ I do not want to repeat arguments which have been quite effectively deployed under Clause 2 in respect of those working in the Community, but I must explain that this amendment, which is to be inserted on page 5, at line 32, draws attention to the unsatisfactory position of British citizens in mainland Europe. There are an estimated 250,000 of them. They are people who are living and working in other member states of the European Community and, as many noble Lords will know, they are deeply concerned. They are working in a region in which there is freedom of movement and right of entry into the territory of every other member state. One of our respected officials in Brussels with whom I have worked closely has recently married a French girl and I know how concerned he is. Incidentally, it is instructive to compare the situation in this Bill with French law, under which there is complete certainty for a French citizen and any of his descendants to retain French nationality, if they so desire. Moreover, they would also be able to vote in French elections at the French Consulate—I say that in passing.
§ Many organisations and individuals have written to noble friends and to myself to express their concern about the uncertainty in which they will be placed over the nationality of their children and over the anomalies which I think are created under the Bill. As other noble Lords have said on amendments to Clause 2, these people have been strongly encouraged to work in the Community, to work on the Continent of Europe, to contribute towards improving British exports and British influence, but many may now be discouraged from remaining in the Community or others from leaving the United Kingdom. I admit that there may have been some misunderstanding as to the effects of the Bill and some amendments which were made in another place have been welcomed, but there are still some areas which are worrying for these British citizens.
§ In the first place, any child born in the European Community outside the United Kingdom would become a British citizen by descent, without the right to pass on his British citizenship to his child, if born outside the United Kingdom. As I understand it, the only exception would be if he were employed in the narrow field of employment contained in Clause 3. Anyone working for a company other than those might be excluded from the provisions. If he is self-employed, for instance; a doctor or an academic attached to a university or even, as my noble friend Lord Lauderdale said, if he was, say, a part-time foreign correspondent. We spoke of them under Clause 2. As I see it, he or she might be excluded.
§ Many young people now work in the Community in order to learn another language or to gain experience and build up business contacts for a few years in what is our largest growing export market. Over 44 per cent. of our exports go to the other member states in the European Community, with of course, West Germany as our biggest market of all, larger even than the United States. Secondly, the national legislation of other member states, particularly the French, does as I have partially already indicated, allow complete certainty as to the nationality of a child born to a French subject; that child is French. But in one at least of the member states, Belgium, for example, 1422 a child born to two British citizens by descent would be stateless. By this Bill we might, it has been thought, be creating more stateless individuals than before.
§ It is the special legal, economic and political ties binding us in the Community which are the strongest grounds for looking at this clause and seeing whether there may be some means of meeting the real concern and doubts of those who are working there for Britain and who want to be reassured of British nationality for their grandchildren, as of right, and not in so restricted a way as in this Bill. There is indeed a great difference between British citizens working in the Community and those working in any other European country, or indeed other countries in the world. That difference is provided for by British law. Following the supremacy of Community law, the European Communities Act 1972 incorporates the Rules of the EEC Treaty; it incorporates the legal Acts made under it, and their interpretation by the European Court at Luxembourg, and thus turns them into British law.
§ Among the fundamental principles of this "British law" is the right to seek work, to take employment, to provide services and to establish yourself or your concern in all 10 member states. To discriminate against British citizens who avail themselves of these rights would be no less a discrimination than that accepted as such by Her Majesty's Government in the case of naturalised and registered British citizens, when they amended Clause 11 in another place. It is true that the Treaty of Rome does not provide directly for citizenship, but the treaty does contain obligations to which the United Kingdom has agreed, and these would include freedom of movement for nationals. There is considerable concern within the Community that this Bill as presently framed may deter or hinder the exercise of this right of movement.
§ Finally, I cannot see why other overseas residents should resent a provision that recognises the rights enforced by the treaty and makes special provision for their preservation. I hope my noble friends on the Front Bench, including my noble and learned friend the Lord Advocate, will give this matter deep thought, and give some tangible assurances which can be passed on to those of whom I speak. I hope he can give these assurances either this evening or at the latest at Report stage. It may be that he can think up some alternative wording to that contained in this amendment. If he has such proposals, I hope he will be so good as to give us a few days' notice before Report stage, so that my noble friends and noble Lords opposite may consider them. I feel that this is a matter on which many of us do need assurances. I beg to move.
§ Baroness Birk
We on these Benches shall be supporting this amendment. Ideally I should like to see the scope widened beyond the European Community, but nevertheless it is a particularly important matter within the EEC for British parents to feel secure in the knowledge that their children will be born British. As the noble Earl, Lord Bessborough, pointed out, the freedom of movement provisions in the Treaty of Rome and in Community legislation are intended to ensure that a person who is a national of any member country can move freely between all member countries, enjoying essentially the same 1423 security and the same rights as in his own. As we know, the citizenship laws of other Community countries are all, except for Ireland, based on jus sanguinis. Children born in those countries to British parents will not get the local nationality. The noble Earl referred to France, where a child born stateless is entitled to become a French citizen, but it is also true that in all the other countries there is a residence requirement to be met before stateless children can get the nationality of the state in question.
Some thousands of British people are already working in Europe, and probably many more will do so, especially as unemployment in this country gets worse. A child born in Belgium, where many British people work—and I, like many other noble Lords, have had letters from people I know who are working in the Community, and from others whom I do not know—could be born stateless, and, if the parents' work required them to move to another country—for example, Italy—before the required number of years' residence in Belgium has been fulfilled to give the child Belgian nationality, the child would then have no hope of being anything but stateless. Italy would have no obligation to confer Italian nationality on the child. Imagine, further, a couple with several children born abroad, but born in different countries because the parents' work required them to move to another country in the early years after the particular child's birth. They might have several stateless children, none of whom would be able to get the nationality of the state of birth because they would never be able to live a sufficient number of years in any one country.
There is a further point, that not all EEC countries have ratified the UN Convention on the Status of Stateless Persons, as we have done in this country. This is an added burden. The number of children who would benefit from this change would be comparatively small, but the problems these children would otherwise face as stateless persons are so serious, the amount of work involved in dealing with the bureaucracy, trying to sort out their nationalities, the parents trying to do it for them, would be so great that it would outweigh any reservations the Government might have on this amendment. I cannot think of any at the moment. We believe this amendment should be strongly supported, and, hopefully, accepted by the Government.
§ 6.38 p.m.
§ Lord Avebury
May I refer once again to the provisions of Schedule 2 for the reduction of statelessness, which the noble Lord the Minister has prayed in aid on other occasions when it has been pointed out that children born overseas may not be entitled to the citizenship of the country where they are born, as in the case cited by the noble Earl, Lord Bessborough, of the British child born in France. The noble Lord the Minister has airily said that we have provisions in Schedule 2 which will take care of this because they reduce statelessness. But, when one looks at Schedule 2, one finds that it does not apply to children born, for instance, in the countries of the European Community, unless at some stage in the child's life he can be brought back to the United Kingdom or to a dependent territory. If I may refer your Lordships to paragraph 4 of Schedule 2, it is headed, 1424Persons born outside the United Kingdom and the dependent territories".It says that such a person shall be entitled to be registered in the circumstances mentioned, and the most important of the circumstances to which I would refer your Lordships appears in subparagraph (c), where it is required that the person be:in the United Kingdom or a dependent territory … at the beginning of the period of three years ending with the date of the application".So, in the circumstances which we are considering, where somebody's parents are working, for instance, in France and they continue to serve overseas—perhaps they move from France to Italy or to Belgium; it does not matter where they go within the European Community—if they do not come back to the United Kingdom, then the provisions for the reduction of statelessness on which the noble Lord the Minister has set such great store will never apply. The child can never qualify unless he comes to the United Kingdom or to one of the dependent territories. Therefore, I think that this amendment is highly desirable, bearing in mind that, on Second Reading and again on the first day of the Committee stage, were we told quite forcefully from the Government Front Bench that all these countries of the European Community have jus sanguinis which is so much better than the jus soli which we have had for 700 years. However, is it better in the case that we are talking about where statelessness is likely to be created by the application of that law in those countries and where there is no remedy provided in the Bill?
I think that the noble Lord the Minister when he comes to reply must either accept this amendment or, at the very least, must undertake, when the time comes, to amend the provisions of Schedule 2 paragraph (4) so that children born outside the United Kingdom in the countries of the European Community may qualify if they remain in those countries for three years as they already do qualify if they are in the British dependent territories or in the United Kingdom for that period.
§ Baroness Elles
I should very much like to support the eloquent moving by my noble friend Lord Bessborough of this amendment tabled in our names and in those of noble Lords opposite. I shall try not to overlap the points which he has already made. However, I should like to confirm that I and many of my colleagues from Britain who are Members of the European Parliament, including I would say Labour members, have received many representations both from organisations and from individuals throughout the Community—not only confined to Brussels and not only confined to those who work in the European institutions or for them.
First, of course, it must be said that the British Nationality Bill is a courageous piece of legislation and is very much needed and warmly welcomed. I think that most of us accept that to be so. I think that most of us would also accept the principles on which the Bill is structured—namely, that citizenship and the right of abode are tied together and that at a certain stage for the majority of individuals there is a cut-off point for transmission by descent. But in accepting those principles there must be special cate- 1425 gories of people clearly definable who may not fit into narrowly defined limitations, but whose claims to better treatment from Her Majesty's Government than they have so far received under this Bill must be recognised. In another place, for instance, naturalised and registered citizens with little or no previous connection with this country, have been granted certain rights, and I think that nobody in this Committee would object to that. Nevertheless, the rights that have been granted to these naturalised and registered citizens are being denied to the particular category of citizens that we are dealing with in this amendment and who have possibly had for centuries long connections with this country through family, tradition, education and culture.
I wish to make a few brief points. First, my noble friend has pointed to the success of our trading association in the Community. It might be worth recalling the most recent words of the Prime Minister on this subject where she states in a document called, Here to Stay, produced by the European Democratic Group, that membership of the Community is central to Government policy. I hope very much that my noble friend the Minister is listening to that comment.
But, so far as the trading success of our country is concerned, it is almost entirely dependent now on the Community: eight of the 11 largest export markets of the United Kingdom are member states of the Community. The only one that so far is not in that list is Greece and it has only joined the Community this year. However, the eight others are among the 11 largest export markets of this country on which a third of the jobs in this country depend. I repeat, a third of the jobs in the manufacturing industry depend on the exports to these particular countries. It would be foolish to imagine that the success of this trade that has developed in the last eight years since membership has been achieved by British salesmen and businessmen staying at home: it has been achieved because they have gone out into the Community, out into the member states and have been prepared to settle there for a time and to do a job on behalf of this country.
Let us take another aspect—research and development. How would we have built Concorde or the Air Bus if British engineers and citizens had not been prepared to go, albeit for a short period of time, perhaps four or five years, to contribute British expertise and knowledge to the advancement of technology? Of course I mention only those two examples, but there are many examples which particularly my noble friend Lord Bessborough would certainly be able to draw to the attention of your Lordships.
One of the declared objectives during the United Kingdom presidency of the European Economic Community has been to adopt the Draft Directive on Freedom to Provide Service in Insurance. That will only benefit the United Kingdom if insurance firms actually have representatives serving in other parts of the Community in order to get work as a result of the adoption of this directive, and of course not only in British firms but to be allied and associated with foreign firms in the Community.
The very principle of mobility of labour and adaptability to new industries will only help to relieve our unemployment if citizens can move freely in a large, free, single market of the European Community 1426 to benefit from the opportunities available. That surely is what the European Community is all about. When we had freedom of movement in the Commonwealth we built up a strong economy. Those trading links do not exist now in the same way and we have to look forward to the future that freedom of movement within the Community is the base upon which our export trade and our economic propserity must grow.
If we want to have individuals within the European Community moving from job to job, as, indeed, is the employment pattern today, then we shall no longer be in jobs from the age of 20 to 60 behind the same desk and pushing the same pen. The whole essence of employment and solving the unemployment problem is being able to move from job to job. Here again is what the Community is about. We cannot expect a citizen from this country to go to a British firm in Paris, for instance, and stay in that firm forever if he is given the opportunity to bring British expertise, British influence and British knowledge to a French firm in order to gain further British exports. He will want to take the French job and his wife will say to him, "No do not do so because our child will be born French or possibly not French. We want our children to be British. We are working for Britain and that is a right that we have and should demand". I believe that your Lordships should support this principle.
The setting up of this market already implies the right of entry to all European Community citizens to this country and the right to social security benefits and the right to jobs. It also implies corresponding rights in the transmission of citizenship to descendants. Why is it that, if French people come to this country they can go on having French citizenship for three or four generations without ever returning to France, but if we send British citizens who are working, or who go of there own accord to live, in France—as my noble friend has pointed out—this is not possible? It is certainly not possible in Belgium and certainly not, for instance, in Denmark. If the right of abode is now a condition of citizenship, it is also true of the large majority of the nationality laws of EEC citizens in other countries.
If a French or Italian can pass on his citizenship to a grandchild, why should not a British citizen have the right to pass on his citizenship to a British grandchild with equal right? If we want to encourage the young, particularly to travel and to get to know their European partners, to learn languages—which, after all, is one of the main conditions and assets which is valuable to a trading nation—to attend other universities, to have teachers exchanging between schools in our member states, then we cannot also deprive them of the right to have their children being granted British citizenship and to be protected.
I am sorry to go on about this, but perhaps we should remember that the Community is based on the friendship which has been nurtured and maintained between France and Germany in particular in order not to create again zones of antagonism. It is only because there have been masses of exchanges between those two countries of individuals, groups and even townships that the Community is based on an area of peace in this western world. I do not want to get too dramatic or exaggerate this point, but I think that it is a fair 1427 point to make.
I should like to raise two more points. I apologise for being rather long on this, but it is perhaps worth raising the point—because it was touched upon by the noble Baroness, Lady Birk—that the number of children being born in the Community is difficult to assess. I have tried to obtain figures in order to give the Committee some idea of the numbers of citizens who might be affected if this amendment was to be accepted by the Government and by your Lordships' Committee. It is perhaps interesting to know that in 1979, out of a total population of British citizens of 30,000, 413 British births were registered in Brussels, about 40 in Luxembourg and slightly over 4,000 in Germany. Of course, that number is larger because of the British forces serving in Germany, so many of those would have been British citizens automatically under Clause 2. Therefore, noble Lords will see that the numbers are comparatively few.
However, noble Lords might like to know that when asked how many British citizens had been born in Paris in the last two years the British Embassy in Paris replied, "Oh, but we do not count how many British citizens are born in Paris. After all, we are all European". I must confess that this has only been reported to me because I did not telephone myself; I was given to understand that the person who telephoned the British Embassy in Paris on my behalf was horrified at that reply.
So perhaps that is also a lesson for the Government. I hasten to add that I cannot vouch for the reply because I did not hear it myself, but I have it on good authority that that was the reply given. Finally, of the many hundreds of Britons whom I have met in the European Community since our membership in 1973, having the honour to serve as a member of the European Parliament and representing over half a million electorate in this country, I must say that there is no group of British citizens more loyally attached to this country, more concerned about its future and more willing to remain outside the United Kingdom for part, if not all, of their working lives in order to contribute to a more prosperous Britain. I very much hope therefore that the Government will see fit to accept this amendment. Of course, I agree that it may not be properly worded, but I very much hope that they will take the spirit of this amendment in the way that I believe the majority of this Committee would wish.
§ 6.55 p.m.
§ Lord Mackay of Clashfern
The Government, of course, very fully appreciate the importance of our membership of the European Community and of the special ties which exist through our participation in European matters. There will be logic in going from that to some aspects of citizenship. But it remains the fact that the individual members of the Community retain separate citizenships and that there is nothing in the circumstances of our membership to indicate that birth within the Community should confer greater privileges as regards citizenship than birth outside it.
My noble friend Lady Elles made reference to the Commonwealth situation and, of course, the situation is that since 1948 British citizenship cannot be passed down in the Commonwealth beyond the first generation, 1428 whereas of course in foreign countries it could be done through the male line at consulates. So far as the Government know, this has not prevented people wanting to go out to the Commonwealth or in any way inhibited the development of British connections with the Commonwealth.
As my noble friend has said on a number of occasions, the present proposals are designed to ensure that our citizenship goes to those who maintain links with this country—close connections with this country. I should like to draw attention to the fact that Clause 3 provides very considerable opportunities for people working in the European Economic Community to have citizenship through the provisions there. The great majority of cases which would arise would, I should have thought, be covered under these provisions.
We must also be cautious about distinguishing between, for example, the countries of the Community on the one hand and countries like Norway or Sweden, which have common travel areas with Denmark, which is in the Community, on the other. Is it right, for example, that someone living in Switzerland or Austria should be put in a different position from this point of view from a person living in West Germany?
It is the removal of anomalies that this Bill seeks to achieve. In 1971 we brought into line, to some extent, the arrangements for acquisition of citizenship by Commonwealth citizens and foreign nationals. This Bill takes that process a stage further. It seeks to remove the anomaly whereby citizenship can be passed on in the male line by consular registration in foreign countries but not in Commonwealth countries. Of course, as I have said, I very much appreciate what has been said by the various noble Lords who have participated in this debate. I think that what has been said does not take sufficient notice of the fact that those who do a job on behalf of this country—to quote the phrase that my noble friend Lady Elles used—would be covered by the provisions that we already have in the Bill.
As regards the schedule dealing with statelessness, of course, the noble Lord, Lord Avebury, is right in what he says about that, and it would be necessary, in order to get the benefit of that particular provision, to satisfy the provisions of sub-paragraph (c) to which he referred. I think that it is also worth noticing that in practice all member states have provisions which enable a child born in their territory to acquire their citizenship, though not sometimes until fairly late on in that child's minority. There is a problem certainly with those who may move from one country to another. But there surely is also a problem with those who might deliberately decide, for example, to settle in France. Why should generation after generation of people who have left here simply because they descend from British people in France have the right of citizenship, where that would not apply elsewhere?
These are the difficulties that we see in giving effect to this amendment. Nevertheless, we appreciate the very real problems that this amendment seeks to cover, and I should like to assure my noble friend Lord Bessborough and all others who have spoken that the Government will give very serious consideration to all that has been said to see to what extent we can meet the difficulties. I also take note of what he kindly suggested we should do; that is, to give full notice of 1429 any proposals that we have for change or improvement in time to enable him and other noble Lords to see these proposals. In the light of those assurances I hope that my noble friend will feel able to withdraw his amendment.
The Earl of Bessborough
We are reaching the bewitching hour of seven o'clock, so I shall not indulge in all the remarks that I might make in answer to my noble and learned friend. But I must admit that I am not entirely happy with the partial assurances which he has given, and I do not really agree with him about the various difficulties which he has raised. I hope that he will read our remarks carefully and that we may have further consultations before Report stage. Therefore, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Aylestone had given notice of his intention to move Amendment No. 72:
Page 5, line 33, leave out subsections (8) and (9).
§ The noble Lord said: This was a consequential amendment to an earlier amendment which fell on stony ground. Not moved.
§ [Amendment No. 72 not moved.]
§ [Amendments Nos. 73 to 76 not moved.]
§ Lord Denham
I think that this is probably an appropriate moment to adjourn this Committee stage for the dinner break. It would probably be a good thing if, after the intervening business, we resumed the Committee stage at eight o'clock, if that would be agreeable to your Lordships. I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.