§ 8.48 p.m.
§ House again in Committee.
Lord Elwyn-Jones moved Amendment No. 138C:
After Clause 38, insert the following new clause:
§ ("Rights of British and Commonwealth citizens
§ .—(1) Every British citizen shall have the right of abode in the United Kingdom, the right to leave the United Kingdom and return freely, the right to a passport, the right to assistance abroad from British Embassies and consulates, the right to vote, the right to stand for public office and the right to take employment in the public sector and to join the armed forces. Every British citizen shall be liable for the obligation of jury service.
§ (2) Every Commonwealth citizen who was settled in the United Kingdom at commencement shall have the right to vote, the right to stand for public office and the right to take employment in the public sector and to join the armed services. Every Commonwealth citizen who was settled in the United 434 Kingdom at commencement shall be liable for the obligation of jury service:
§ Provided that nothing in this section shall be construed as rendering any British citizen, Commonwealth citizen, Irish citizen or alien ineligible to hold any rights or not liable for any obligations as may be by law provided.").
§ The noble and learned Lord said: I beg to move Amendment No. 138C. After that prolonged, but not disagreeable, absence for a time from the British Nationality Bill, we now move to what I submit is an important new clause relating to the rights of British and Commonwealth citizens—a reference to which is at the moment significantly absent from the Bill as it now stands, save for the right of abode and rights directly related to the status of citizenship.
§ The proposed new clause has important features. It declares and affirms the minimal rights and obligations of British citizens and of Commonwealth citizens who are already here. The need for such a provision as this in a nationality Act was stressed by the valuable report of Justice, the all-party organisation of lawyers. Indeed, perhaps I should declare an interest as I am, like one or two other noble Lords who are present, a member of the Council. As we have found in the course of our debates upon the Bill, the incidence of British nationality is to be found in a considerable variety of laws either referring to British subjects or dealing with aliens. That is why the task of resolving the problems that arise from the variety of sources has been difficult for us. Until the task was attempted in this Bill there has been no single nationality law or a relevant code of privileges, rights and duties attached to citizenship. Justice recommended, and I entirely agree, that civic rights should flow from the law of nationality and that a valuable opportunity would be missed if this Bill, governing nationality, did not contain the principal rights and obligations of the citizenship that it establishes.
However, I submit that the matter is not merely one of constitutional tidiness and good sense; a great deal of the worry that has been ventilated by Commonwealth citizens settled here is that their rights may be taken away from them in future once a British citizenship has been established. There was a sentence in paragraph 110 of the White Paper on Nationality which caused some concern about that possibility arising. It reads:
The Bill would provide that where a statutory duty or entitlement is expressed in terms of British Subjects, it should continue to have the same meaning as it had under the 1948 Act. But the Bill, by establishing a British Citizenship, will make available a ready definition by which those duties or entitlements may be re-defined in the future".
It is that prospect of redefinition which has caused some concern. The matter was raised in another place and it may well be that the noble Lord, Lord Belstead, will confirm that the Government have no intention to alter the rights of Commonwealth citizens who are here. But absense of any indication of this in the provisions of the Bill continues to cause anxiety.
§ It is our view that what is set out in the new clause will have an important and valuable declaratory and reassuring effect. It follows the recommendations of the Justice Report, that in conformity with international standards and for the protection of the individual, the right of abode in the national territory, as well as a number of other rights, should be guaranteed in the law on nationality as inalienable rights.435
We have sought to set them out, as did the Justice Report, in the two subsections of the new clause that we are now considering. Subsection (1) sets out the British citizen's right of abode. It says:
Every British citizen shall have the right of abode in the United Kingdom".
Then there follows:
the right to leave the United Kingdom and return freely"—
a right sadly denied in several countries and, of course, in particular the Soviet Union. That right to leave and return to our country freely in modern times implies a right to a passport. With it, as subsection (1) states, goes:
the right to assistance abroad from British embassies and consulates",
which are an essential element of the enjoyment of British citizenship and the possession of that valuable object, a British passport. There follows a reference to:
the right to vote, the right to stand for public office"—
which are important rights in a parliamentary democracy—
and the right to take employment in the public sector"—
which is another important right—
and to join the armed forces. Every British citizen shall be liable for the obligation of jury service".
All those are perhaps minimal rights, but we think that they are valuable to assert now as protected by the Nationality Bill, and are related to it.
Then in subsection (2) there are provisions that:
Every Commonwealth citizen who was settled in the United Kingdom at commencement shall have the right to vote, the right"—
to stand for public office and the right to take employment in the public sector and to join the armed services. Every Commonwealth citizen who was settled in the United Kingdom at commencement shall be liable for the obligation of jury service".
Then there is the general provision:
Provided that nothing in this section shall be construed as rendering any British citizen, Commonwealth citizen, Irish citizen or alien ineligible to hold any rights or not liable for any obligations as may be by law provided".
Our submission on this side of the Committee is that the inclusion of the statement and declaration of these rights in the Bill will have a valuable, practical and settling effect among the minority communities in our country, particularly at this time of uncertainty and anxiety. Incidentally, it will be a reassurance also to all of us who will be British citizens under the provisions of the Nationality Bill. I beg to move.
§ Lord Rawlinson of Ewell
I find this a strange new clause, proposed as always with such grace by the noble and learned Lord, Lord Elwyn-Jones. I find it strange, I find it unnecessary and I find it very remarkable. I find it very remarkable that we have a declaratory statement as to various rights which are enjoyed. It says:Every British citizen shall have … the right to leave the United Kingdom … Every British citizen shall be liable for the obligation of jury service".There are many exceptions to jury service. Are we to have stated every right that we have? Is this a comprehensive list of all rights? If so, where is the 436 right to speak one's mind, the right to assemble, the right to worship as one wants and the right to believe? If we are to start reciting all the rights which British citizens have, then we shall have a whole new Bill.
The noble and learned Lord says that by having this in the Bill it will provide reassurance to those who are apparently at present feeling disturbed about the Bill. Only a little earlier we heard people say, "This is such a complicated Bill that no one will be able to understand it or read it". We have been told that no one will be able to explain it to anybody. I would suggest to the Committee that to have a declaration such as this does not serve the law and does not serve the purposes which I know the noble and learned Lord has in mind, and which I very much share with him. But to recite them and then to omit what to some may be the greatest right we have in this country—to believe and worship as you wish—seems to be very remarkable. Therefore, although I well appreciate and understand the spirit of the noble and learned Lord's proposal of this new clause, I do not think that it is a sensible one to introduce into this Bill.
§ Lord Renton
I feel bound to agree with my noble and learned friend Lord Rawlinson. This is, indeed, a most remarkable clause. It seems to be based on the assumption that every British citizen is an adult; that none of them is a minor; that none of them is a Member of your Lordships' House; that none of them is already a convicted criminal in prison and that none of them is awaiting trial and thereby having to have his passport removed in case he should leave the country in the exercise of this right which the noble and learned Lord has said that every British citizen should have in all circumstances.
As for the right to join the armed forces, it has never been a right to join the armed forces. Indeed, the armed forces are very selective in trying to achieve the right quality of man to serve in them. Sometimes there has been an obligation in time of war and national necessity to join the armed forces, but even then the circumstances were not always such that there was a right to join. Sometimes people got annoyed because they were not called up for the armed forces and were made to do some other kind of national service, but there was never a right to join the armed forces.
One could go on, but I think it is quite unnecessary to persuade your Lordships that this is indeed a remarkable clause. I would only add this: we find that there is a right to stand for public office. What does "public office" mean in these circumstances? Is it intended to be confined somehow to an office of profit under the Crown? On the other hand, is it intended to be confined to the kind of public office for which one has to be elected first either to the central Government or to a local authority? No, this really will not do, however good the intentions may be so far as the right of abode is concerned, for example.
§ Lord Mishcon
Two of the company of your Lordships for whom we all have a great respect have regarded this amendment as being remarkable. I would have hoped that one of them at least would have said how remarkable it is that we have been discussing for a long time in this place and for a long time in another place a British Nationality Bill that gives the 437 executive of this country the right, and the administration of this country the right, to make some people, however few, stateless, to make some people a class of citizen which does not have the same rights as another class of citizen; and then the Bill, which is called a British Nationality Bill, ends without either saying one word about what nationality really means or without saying what rights are conferred upon a British subject. If this amendment has done nothing else apart from drawing from two noble and learned Lords adjective upon adjective (they both have the gift of language and therefore the multiplicity of adjectives is no trouble to them) at least it will give your Lordships the opportunity of thinking for one moment of what this Bill is doing without even the Government announcing that legislation is on the way in order to deal with what the rights of citizens are.
This Bill does not even have a clause in it which talks about the right to get a passport. In those circumstances, I am asking your Lordships, if I may, in Committee to say this: Are we going to discuss at any time at Committee or Report stage what the rights of citizens are? I can tell your Lordships that discussions are going on in other places. In regard to the EEC, rights of citizenship and membership are being discussed and may well be issued in some sort of codified form. This is being done in other parts of Europe. Are we, when discussing this Bill, to do nothing at all in regard to putting here about the right to work? Of course, one can take pieces out of this amendment and say that it does not apply, obviously, to minors.
§ Lord Renton
I thank the noble Lord, Lord Mishcon, for giving way, but the noble and learned Lord, Lord Elwyn-Jones, and I were serving in another place when the most fundamental change in our nationality laws was made. That was in the British Nationality Act 1948, and no such statement of rights accompanied that Act; nor, so far as my recollection goes, did the vigilant Opposition of which I was then a member, nor did the vigilant Labour Party Bank-Benchers, who were so numerous, ever suggest that such rights should be written into the British Nationality Bill. If one once started to do so, the rights of our people are so very considerable that it would have to be an enormous Bill on its own.
§ Lord Mishcon
The noble Lord, Lord Renton, is absolutely right. In days of simplicity with a Government in power who knew how to put upon the statute book an Act dealing with nationality that your Lordships could understand, that Members of another place could understand, and that citizens who were normally intelligent could understand, it was not found necessary to create, so far as I can remember, three classes of citizenship consisting of British overseas, British dependent territories and British citizens who have omnibus rights.
If we do have a complex measure of this kind, can we not spend at least 10 minutes or so discussing the question of the rights of citizenship? Are the Government to be so silent upon this matter that we shall not even get a reply that such rights exist in our common law, exist as a matter of precedent, exist in statutes 438 which are quite multifarious and have never been brought together; is the opportunity being taken to see that the rights and duties, if you like, of citizenship are codified at last or put in some form so the various classes of citizens will at least know where they stand? If this amendment produces silence from the Government, I am sure it will also produce disappointment; but if it produces some positive reply instead of merely adjectives such as "remarkable" and "unintelligible", and words of that kind, my friends and I will be very glad.
§ Baroness Elles
I understand that the clause proposed by the noble and learned Lords basically attempts to set out some of the civil and political rights under the various international agreements to which the United Kingdom is already a signatory and, indeed, it has ratified many international instruments. But the noble and learned Lord, as a matter of fact, is suddenly granting to British citizens completely new rights from which I was certainly not aware that we could benefit. The first is the right to a passport. I never knew until tonight that I might have the right to a passport. I believe that is a new right which has been declared in this clause. I think, therefore, it would take quite a long time to discuss tonight who and why and how one should have the right to a passport.
The second is a very interesting one, which is the right to assistance abroad from British Embassies. If that is implying diplomatic protection from a state, I always was taught in my early days of international law that it is the one discretionary right of a state to grant, or not to grant, diplomatic protection to its citizens abroad. This is one of the grave defects of diplomatic protection as it exists in international law today. I really compliment the noble and learned Lord that he should have attempted in this brief clause to introduce a major change in international law which has certainly not been recognised by any other sovereign state, and I rather doubt that it will be recognised by this sovereign state.
The third, which I really must comment on and which is a completely new departure, is the one which grants every British citizen the right to vote. Does the noble and learned Lord really mean that wherever you are living in any part of the world that any British citizen may take part in, I presume he means, a British general election? He has not actually defined it, but I presume he means the right to vote in a British general election, or possibly in a local election. It is a most extraordinary right for somebody like the noble and learned Lord to wish to confer on British citizens regardless of the place they live in.
I see he may have wished a general discussion on the rights and obligations of citizens, but if you are going to discuss what rights you are going to confer by this Bill on British citizens would it not be rather wise and sensible, in view of the situation in the world today, to put in something about duties? If you are to have a clause of this nature—which no doubt in any case will not be put into the Bill because it really is quite irrelevant to the terms of this Bill—I should have welcomed something about duties as well. But, of course, I am quite certain that since the purpose of this Bill is to define what is a British citizen, who has the right to British citizenship, once you have that 439 right and this Bill has been adopted and Royal Assent given to the Bill, then we can see what are the rights and duties of the citizens who have been made British citizens under this Bill.
§ 9.10 p.m.
§ Lord Avebury
The noble Baroness says that if one is going to do this at all one should put in something about duties, and yet earlier on she talked about the international instruments to which we are a party and which we have ratified. I am not aware that there is any such instrument entitled The International Covenant on Civil and Political Duties, and that really is the whole of the answer to the noble Baroness. In order to comply with obligations we have entered into, we should ensure that citizens have rights which ought to be justiciable in an English court. This is something which is lacking.
I was sad when I listened to the noble Lord, Lord Renton, and the noble and learned Lord pouring scorn on this amendment in principle. The very notion that you should try to incorporate in this Bill, or indeed in our law generally, some statement of the rights of British citizens appears to be bizarre to them. They do not believe that we should give any force in our own domestic law to the rights—I am very glad to see the noble Lord, Lord Renton, shaking his head there. He does believe then that instruments such as the European Convention on Human Rights or the International Covenant on Civil and Political Rights, to which we are adherents, should be given some force in our domestic law. If they are merely saying that they do not like the particular catalogue of rights which the noble and learned Lord, Lord Elwyn-Jones, has put into this amendment, that is one thing, but if they are saying that as a matter of principle they do not want any statement of rights to appear in the law at all, that is something different.
§ Lord Renton
Surely the noble Lord must know that the basic rights of the people of our country have been established long ago, starting with Magna Carta. They are already in the law. There is no need for us to make a sort of botched up new clause on a Bill of this particular kind in order to re-write or re-establish those rights. If we are to start adding to rights I would insist, for example, on the rights of the mentally handicapped—which have not yet been defined—at some time being put in a statute. I think that the noble Lord is being a little unfair to my noble and learned friend Lord Rawlinson and myself, who have merely stated a perfectly straightforward proposition that these rights should not be stated in the way put forward in this new clause.
§ Lord Avebury
I suppose that the noble Lord, Lord Renton, imagines that the rights he is speaking of are conferred on the British people by the common law. That is what he means, is it not? Well, he is wrong. I must say that. Ministers are constantly whittling away and slashing at the rights that people have had under the common law for centuries, and nobody takes a blind bit of notice. The noble Lord, Lord Belstead, knows perfectly well the sort of rights that I mean, because I am in correspondence with him about them. I will give an example. The right of a 440 person to bring a private criminal prosecution, a right which has been in our law for centuries, and which is—I do not know what the noble Lord, Lord Renton, is muttering, or whether he is trying to say that this is not a right which a person possesses.
§ Lord Renton
I am merely muttering to the noble Lord next to me that that particular right is established and does not need to be re-written.
§ Lord Avebury
I am glad to have the noble Lord's opinion on that. I hope that the noble Lord on the Front Bench is listening to him. He knows perfectly well that there are certain people who have been prevented by his department from bringing private criminal prosecutions, and the rights which the noble Lord, Lord Renton, thinks that they possess have been taken away from them by an administrative act of the Home Office.
I am speaking about subsidiary legislation made under the prison rules. The noble Lord knows—and I am wandering far from the amendment, but this is probably a useful illustration of what can happen if people do not keep their eyes open—that a person who is a prisoner in one of Her Majesty's prisons is stopped by the Home Office from bringing private criminal prosecutions, although there is no statutory power given to the Secretary of State to do that. The noble Lord, Lord Belstead, knows perfectly well that this is happening at this very moment. I believe, in common with my noble friend Lord Wade, that it is essential that we have some statement on the rights of British citizens in our legislation which people can use in the English courts.
My noble friend Lord Wade has attempted to do this by means of a Bill which would enshrine the European Convention of Human Rights into the domestic law of this country. He has passed this Bill several times through your Lordships' House and it is now waiting for the Government to see whether it can be given time in the other place. So if the noble Lord, Lord Renton, and his noble and learned friend, Lord Rawlinson of Ewell, do not consider that the particular catalogue which is offered to us in this amendment is the ideal one but believe that something along these lines should be done, then at least let them accept the principle and use their enormous influence on the Home Office to get my noble friend's Bill given time in the other place.
§ Lord Elystan-Morgan
I suspect that the true motivation for this new clause was to stimulate thought and to inspire consideration of some of the deeper elements involved in this legislation and the longer effects thereof. If the noble Lords, Lord Rawlinson and Lord Renton, were narrow-minded lawyers—which they are not—and wished to indulge in sterile and arid considerations of the technicality of legislation—which they do not wish to do—then no doubt they would have a field day in attacking many of the words and phrases involved in this draft clause.
§ Lord Rawlinson of Ewell
If the noble Lord is supporting this clause, which is a clause to be written into law, does he support that every British citizen—including babes in arms—should have the right to 441 vote? Is that the kind of law which he thinks ought to be made?
§ Lord Elystan-Morgan
We have some precocious children in our country but they are not that precocious. I will say in a moment what I do support. The sum total of the rights and privileges of the British people is to be found, I accept, in dozens and scores of different enactments and in common law. It may, indeed, be premature, short of having a comprehensive Bill of Rights, to include such a statement of rights in a provision such as this. Nevertheless, I believe it is right that your Lordships' Committee should consider deeply the issue of principle which has been raised by my noble and learned friend. If a visitor from Mars were to look at this British Nationality Bill he would say to himself, assuming that he were male—
§ Lord Elystan-Morgan
He would say, "What is the purpose of it? Is it a democratic exercise? What is the point of spewing out three categories of British nationality, of dividing British nationality into three parts, like Ceasar's Gaul? What is the purpose of it?" I have a suspicion, which I hope I expressed in suitably restrained terms in my maiden speech on Second Reading, that this is merely the groundwork and foundation for more restrictive immigration legislation. If that is the purpose, then that is not as yet enshrined in this legislation. But the legislation, standing as it does alone, seems very incomplete.
I suspect that the visitor from Mars would say that this Bill really deals with the question of citizenship and not nationality. But if one is dealing with the question of nationality, then there is some sense in correlating the question of status with the question of right, and correlating the question of right with the question of obligation. The noble Lord, Lord Renton, asked why should this be done now when it was not done in 1948. A fair and logical question; but I am sure that he will accept the point that in 1948 there was very little doubt as to who was or was not a British subject. Doubts have been raised and set in train by this legislation. Millions of people who a year ago were quite certain who they were and what they were will now have doubts.
I ask noble Lords who have opposed the new clause to look at subsection (2). I would argue that that goes a long way to remove some of the doubts. Those doubts, fears and suspicions constitute the most dangerous part of this legislation. I suspect that the number of people who will be directly and physically affected by the Bill will probably be not all that many. The danger, difficulty and weakness of the measure is the fear and suspicion it engenders. That may well be fertile ground for some of the evils which, as we are well aware, are now threatening this kingdom. Therefore, I urge noble Lords on both sides of the Committee to consider that it may indeed be right to give further thought to the question whether there should be some declaratory provision, perhaps not altogether in the terms proposed, that, first, gives some 442 sense of that correlation between status, right and obligation and, secondly, and even more important, a declaratory provision that removes some of the fears of which we are all too well aware.
§ Lord Belstead
I was chided by the noble Lord, Lord Mishcon, for remaining silent, but it was only because I watched fascinated while one noble Lord after another succeeded in hitting the wrong nail on the head. I know after five days in Committee that any mention of the previous Government's Green Paper is liable to give noble Lords on the Opposition Front Bench sleepless nights.
§ Lord Belstead
The reason why the wrong nail has been hit on the head in the last 34 minutes—in this 10-minute debate which the noble Lord, Lord Mishcon, said would be just the right length—is contained in that Paper, which dealt briefly with civil rights. The Green Paper said:Such privileges do not stem directly from the law on nationality, and so are not dealt with in this document".With respect to this interesting amendment and, genuinely, the interesting debate we have had on it, that of course is the case, and the case was put succinctly and accurately by my noble and learned friends Lord Rawlinson and Lord Renton in this respect. What, then, need I add? Perhaps I might mention two points. First, in answer to the noble and learned Lord, Lord Elwyn-Jones, I realise that one of the motives behind the new clause is to allay some of the fears that have been expressed about the possible effects of the Bill on the civic rights of Commonwealth citizens. I will therefore repeat the assurances on that point which were given by my right honourable friend the Home Secretary in another place on Report. He said on that occasion:It is quite wrong for people to see the Bill as the precursor of future changes in the area of civic rights. If the Government had wished to change civic rights legislation, they could have done so without introducing a British Nationality Bill".Although I cannot in our parliamentary democracy speak for fellow parliamentarians at any time in the future, much less any future Governments, the Bill does not have any bearing on the matter. I must stress that the Government do not have any plans to change the law in the areas which people appear to have primarily in mind, and the areas which have been in mind have been very wide this evening. Nevertheless, none of them I think are we intending to change as a result of the Bill.
The second point I feel I must make is that when one attempts a task of this kind, one gets into the most appalling muddle, and the fact is that not only are the majority of the rights mentioned in the new clause all enshrined, as my noble friends have said, in different parts of legislation, but there are three rights which are not to be found in legislation and they lead us down some very odd roads. They are indeed the right of abode, the right to a passport and the right to consular protection.
So far as the right of abode is concerned, there is no need for this clause to specify that British citizens will enjoy that right in this country. As your Lordships 443 will be aware because we have only just disposed of it, Clause 38 of the Bill deals with this. That clause substitutes for the existing Section 2 of the Immigration Act a new section which provides that anyone who is a British citizen will also enjoy the right of abode in the United Kingdom. This part of the new clause is therefore unnecessary and under Section 1(1) of the Immigration Act of 1971 those who have the right of abode are to be able to enter or to leave the United Kingdom without let or hindrance save in certain limited circumstances. So if I may say so that underlines the fact that there is no need for this part of the new clause.
Then, so far as the two other matters are concerned to which my noble friend Lady Elles referred, I think she could be forgiven for not realising that there is no statutory right to a passport, because there is none. Passports are issued at the discretion of the Secretary of State for Foreign and Commonwealth Affairs exercising the Royal Prerogative. In practice the discretion to refuse passports is limited to certain categories of people who clearly ought not to travel: minor children whose journey is known to be contrary to a court order; a person for whose arrest a warrant has been issued in the United Kingdom. It is interesting—because the noble and learned Lord particularly mentioned Justice—that although Justice, the British section of the International Jurists, in its report which was entitled Going Abroad, advocated, it is true, a statutory right to a passport, it went out of its way not to criticise the present system of administration. Quite the reverse. Justice said:We also wish to make it clear that we have been impressed by the apparent efficiency and enlightened operation of the present system. It cannot be pretended that its present functioning gives rise to any major difficulties or to any serious abuse of power".Finally, there is the other non-statutory right to assistance abroad from embassies and consulates. Again my noble friend Lady Elles could be forgiven for not realising that that right is not in statute form, because again it is not, and I do not think that this clause should be in statute form either.
§ Lord Elwyn-Jones
I make no apology whatsoever for having moved this amendment. The principal purpose was to achieve what at any rate the debate has achieved in rather more moderate terms than have been heard from noble and learned Lords, the allaying of the fears of, in particular, the minority people over the potential effect of the creation of a whole new conception of British citizenship and attendant rights. This anxiety is very real and I hope that due publicity will now be given to what the noble Lord, Lord Belstead, has said which is more constructive than the mere mockery that we have had from certain quarters about the raising of the serious question of the statement of the rights of the subject in this country.
Most other parallel societies have contrived a code or declaration of human rights. We have managed without it in this country. I had not noticed the same sort of mockery addressed to the European Convention of Human Rights or the attempts of the United Nations to make declarations as we have had about this modest attempt of the Justice working party. I regret that I cannot claim any monopoly over the emergence of what has appeared on the Order Paper, 444 but I think that the attempt was a serious one at any rate to start discussion.
The interesting point about this matter is that in the Government's White Paper on this matter one finds in paragraph 110:The term 'British Subject' is used in a number of other United Kingdom statutes to define certain rights and privileges. Among these are the statutes governing the right to vote, the eligibility to serve on a jury, to take certain employment in the public services, and to hold certain ranks in the Armed Forces. The Bill will provide that where a statutory duty or entitlement is expressed in terms of British Subject, it should continue to have the same meaning as it had under the 1948 Act. But the Bill, by establishing a British Citizenship, will make available a ready definition by which those duties or entitlements may be re-defined in the future".So a redefinition is apparently contemplated, and therefore that Parliament should at least begin to think about the terms of a redefinition does not seem to me to be a waste of time. Not for one moment would I suggest that the amendment has been drafted in terms that would sustain prolonged examination, and I do not propose to press it. But I resent the view that it is idle and frivolous that we as the Chamber of the House of Lords should be encouraging at least serious consideration of whether the subject in this country needs more reassurance in appropriate, readable and recognisable form of what his rights really are. Having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 4 agreed to.
§ Clause 39 [Deprivation of Citizenship]:
§ [Amendments Nos. 139 and 140 not moved.]
§ 9.31 p.m.
Lord Gifford moved Amendment No. 140ZA:
Page 32, line 21, after ("fraud") insert ("or").
The noble Lord said: Clause 39 of the Bill deals with the very serious subject of deprivation of citizenship. Before coming to the terms of the amendment, which is a paving amendment for Amendment No. 140ZB, to which I wish to speak along with the present amendment, I should like to express the hope that deprivation of citizenship, which is already possible under the 1948 Act, does not occur very often. Perhaps when he replies the noble and learned Lord by way of preface can inform the Committee of how frequently deprivation occurs. The amendment draws attention to the ground for depriving a citizen of his citizenship. The Bill provides in subsection (1) that there can be deprivation of citizenship of a person who has been registered or naturalised as a citizen, if there has been
fraud, false representation or the concealment of any material fact".
It has to be said that those three categories appear in the 1948 Act, but it is my submission to the Committee that be that as it may, they go far too far, and Amendment No. 140ZB seeks to delete the third ground of deprivation:
the concealment of any material fact".
When people apply for registration or naturalisation they are required to fill in forms. There is a provision which allows the Secretary of State to prescribe forms. Normally if I, as a lawyer, were advising a person who
had to fill in a naturalisation form or a registration form, I would say, "Answer the questions that you are asked, and answer them honestly". That is what most people do when they fill in forms. They expect the authority to ask them the questions to which the authority wants to know the answers. But under the Bill that will not do. An applicant for citizenship may answer all the questions with complete honesty, he may be questioned by a police officer and again give answers with complete honesty, and yet still be subject to the deprivation of his citizenship if he is found to have concealed a material fact. What is a material fact? It can be only what the Government think to be a material fact. How does an applicant know what the Govenment think to be a material fact? One would have thought that he can find out by looking at the questions that the Government ask him to answer. One then gets back to a circular argument and concludes that this ground for deprivation of citizenship is either quite unnecessary or very dangerous. In either case, I hope that the Committee will look sympathetically upon the amendment which seeks to delete it. I beg to move.
§ Lord Avebury
It would be helpful if, when the Minister comes to reply, he could give us illustrations of the kind of case in which a person has been deprived of his citizenship on the basis of "concealment of any material fact". I am very anxious about this, as the noble Lord, Lord Gifford, is, because in the case of applications for citizenship I have found that decisions go against a person on extremely trivial, if not frivolous grounds, including the alleged concealment of facts which I would have thought were extremely immaterial.
I have given the Committee the example before of the man who I discovered purely fortuitously had been refused his applicaton for citizenship when, during the interview with the person who examined him for the purpose, the question of convictions came up. He admitted that he had driven through a red light, and the interviewing officer asked to see his driving licence. He produced an international driving licence, which the man examined and then said,"Do you not realise that you are not permitted to have this for more than one year, and you say that you have been continuously renewing your international driving licence for the last five years?" The man said that he was married to a Swedish citizen, that he went to Sweden every year. that no one in Sweden had ever objected to his taking out an international driving licence and that the court which had convicted him of driving through a red light had not made any comment on the matter when endorsing his licence.
So the interveiwing officer then said, "Have you not attempted to take out an English driving licence?", and he said, "I made an arrangement to undergo a test in April, but it was not convenient". When the Minister came to explain the reasons why this man had been refused his application for citizenship, he told me that it was on the grounds that this person had falsly claimed that he had made arrangements to take a driving test when in fact upon inquiry the interviewing officer found that the test had been cancelled. The person concerned never said that he was definitely 446 going to take the test; he said it had been arranged, but it was not convenient. So there was a total misunderstanding, and it was on the basis of such a trivial factor which occurred at the interview that the person did not obtain United Kingdom citizenship. I would dread to think that it would be on grounds of this sort that a person could be deprived of his citizenship.
The noble and learned Lord the Lord Advocate may say that there is this provision later on in Clause 39 for an appeal to a committee, but we do not know what sort of rules the Secretary of State is going to make for the procedure to be followed in connection with references under this clause. Subsection (8) of this clause gives the Secretary of State the power to prescribe those rules, and it could well be that the way that they were drawn compelled the committee of inquiry set up under the clause to examine the deprivation of citizenship to reach the same conclusion, invariably, as the Secretary of State. So I really feel that in spite of the fact that this was a repetition of something, as the noble Lord says, which was contained in the 1948 Act, it requires to be looked at afresh in the light of what we know about the applications for nationality since then.
§ Lord Mackay of Clashfern
As the noble Lord, Lord Gifford, pointed out in moving this amendment, a similar provision was in the British Nationality Act 1948, the clarity of which we have had so recently proclaimed to us. It may be of some interest that since 1948 there have been 28 cases of persons who have been deprived of citizenship of the United Kingdom and Colonies. Of these, 10 were deprived by the Home Secretary in the United Kingdom and 18 by the Governor of a dependent territory. My understanding is that the use of this power, therefore, is a very limited one. It has been used in the past with the greatest discretion and it would be most unusual if any change occurred in that. All that is happening is that substantially the same provisions are being re-enacted.
I have been asked by the noble Lord, Lord Avebury, to give an example. The power so far as the concealment of a material fact is concerned has been used in the United Kingdom only twice since 1948. Those who were concerned in the applications of this power were deprived of their citizenship in 1951, on grounds of concealing that they were in the pay of the Czech Government to whom they sent reports on Czech nationals living in this country. It is not envisaged that the power in this Bill will be used any more frequently. As at present the use of the power is only likely to be contemplated in serious cases where the concealment concerned was clearly deliberate and involved information of obvious relevance to the success or failure of the application.
As the noble Lord, Lord Avebury, pointed out, there are safeguards in this clause for the use of this power, not only on the grounds of concealment of a material fact but also on any of the other grounds which are available. The Secretary of State cannot make a deprivation order under this clause unless he is satisfied that it would not be conducive to the public good that the person concerned should remain a citizen. Secondly, he must, before making an order, give the person written notice of the grounds on which 447 deprivation is proposed and inform him of his right to an inquiry. Thirdly, the person who is to be deprived has a right to an inqury into his case; even if the individual does not ask for an inquiry, the Home Secretary may decide to refer the case to one. Similar arrangements are to apply in the dependencies.
It is suggested that the Secretary of State has power to make rules of procedure for this inqury, and that is true. It is suggested that he could make rules of procedure which would impose on the tribunal the duty of coming to the same answer as the Secretary of State wanted them to come to. These would be extraordinary rules of procedure. I am sure that the noble Lord has in mind that Clause 39(9) provides that the power of the Secretary of State to make rules under the subsectionshall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of ParliamentIt is difficult to believe that rules which have the effect of forcing the Committee to the same result as the Secretary of State wished to reach would survive in either House of Parliament. In the light of these considerations, I hope that the noble Lord, Lord Gifford, will feel able to withdraw this amendment.
§ Lord Gifford
I am grateful to the noble and learned Lord for giving a certain amount of reassurance about the operation of this provision. I should have thought that the two people who were in the pay of the Czech Government probably made a false representation when they swore the oath of allegiance. Leaving that aside, while thinking that this form of words is not necessary, I accept and welcome the statement which has been made about the extreme circumstances in which it is intended that it should operate. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 140ZB not moved.]
Lord Gifford moved Amendment No. 140ZC:
Page 33, line 10, after ("(a)") insert ("(ii)").
§ The noble Lord said: We now turn to the other category of deprivation of citizenship…that is to say, subsections (3) and (4) of Clause 39. Subsection (3) sets out three forms of conduct which can justify deprivation: disloyalty or disaffection towards Her Majesty; trading with the enemy; and being imprisoned in any country for a term of not less than 12 months within five years of obtaining citizenship. Those three categories, I think, are repeated word for word from the 1948 Act, but in the 1948 Act they apply only to someone who is a naturalised citizen. This Bill goes much further by including registered citizens in the class of people whose citizenship can be taken away on any of those three grounds. My amendment seeks to restore the limit of the 1948 Act by saying that only naturalised citizens should be subject to this form of deprivation.
§ One can see a certain logic, in that someone who has applied for naturalisation and therefore put himself forward as a person of good character could be said to be fairly deprived of his citizenship if it is said that he is disloyal or a criminal, because there would have been an obtaining of the citizenship under false colours. But people who are registered as citizens are 448 so registered because they are entitled to citizenship and no good character requirement and no loyalty requirement is imposed upon them at all. In fact, they can be of the worst possible character and still be entitled to citizenship under this Bill.
§ For example, we have the absurdity of a Commonwealth citizen settled in this country who could claim his entitlement to registration from prison, having been sentenced to a long term of imprisonment; and yet somebody who got that registration and then a year later became sentenced to a term of imprisonment could have it taken away. I cannot believe that the Government have got this right in this bill. It leads to absurdity. Those who are registered citizens, as has so often been said, are registered because they are entitled as much as any of us, provided that they comply with the statutory requirements. Therefore, their character and loyalty should not come into the account any more than they do so far as the citizenship of a British-born citizen is concerned. I beg to move.
§ Lord Mackay of Clashfern
The noble Lord, Lord Gifford, in moving his amendment, has accurately described the situation and the effect of what is proposed in so far as he has been describing the Bill itself. Perhaps I should emphasise at the outset that the Bill does not interfere in any way with registration of those people who were registered before commencement of the Bill as citizens of the United Kingdom and Colonies. It applies only to registration in respect of the new system of citizenship that we are seeking to set up. It certainly seems to us that it is right at this juncture to consider and provide for the situation which could arise.
Citizenship is a privilege, and we think it reasonable that there should be power in the last resort to deprive someone who has voluntarily sought our citizenship and been granted it and who then acts against the interests of this country or behaves in a way that brings discredit on the grant of citizenship to him. I say, "in the last resort", because, as I indicated in relation to the earlier amendment, this power of deprivation is one which has in the past been used most sparingly, and the basis on which it is applied to registration is the same basis on which it has applied, so far as the past is concerned, to naturalisation. There is therefore no reason to anticipate that it will not be used equally sparingly in this particular area as is was in relation to naturalisation. As I have said already, there are most important safeguards against its misuse, not least in the committee of inquiry procedure to which I have already referred.
The situation accordingly, in my submission, is that where people have sought and been granted citizenship, it is right that they should be treated on the same basis as those who have been granted citizenship by naturalisation. I hope that, in the light of that explanation, the noble Lord will feel able to withdraw his amendment.
§ Lord Gifford
May I press the noble and learned Lord a little further, particularly with regard to the third provision of imprisonment? Does he not recognise that there is a certain absurdity in the fact that a good character, and a record clear of previous convictions, is of no relevance at all to someone who is applying 449 to be registered as a citizen? He can be of a good or a bad character, and yet it becomes irrelevant, for reasons which I fail to see, in the five years after he has become a citizen. Is not this something which should be looked at again? Otherwise, the law appears to have no logic at all in it.
§ Lord Mackay of Clashfern
If one is taking the whole story into account, one takes account, in considering the right of registration, of the possibility of deprivation. In other words, the provisions with regard to deprivation have to be looked at when one is considering what is the right that has been conferred. I perfectly see the argument which the noble Lord is putting forward, but I would ask him to see equally the argument that, where the power to deprive applies to naturalisation—citizenship by grant of that kind—it should equally 450 apply to citizenship by grant, where that is done by way of registration, the person having applied voluntarily for it. In my submission, these two are sufficiently close to make it unwise to distinguish between them in this new system.
§ Lord Gifford
I am not absolutely convinced. Naturalisation is quite another matter, which depends on a good character requirement. That is the big difference and that is, no doubt, why the 1948 Act did not apply to registered citizens the same provisions as we are now considering. I should like to be able to look at this again and to come back to it, if I feel that it is of sufficient importance—as I think it may well be—to raise again. But, for the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 140ZD not moved.]451
§ 9.53 p.m.
§ Lord Elwyn-Jones moved Amendment No. 140A:
Page 33, line 36, at end insert—
("The Secretary of State shall be bound by any recommendation of the committee of inquiry.").
The noble and learned Lord said: This is a short point. Subsection (7) of Clause 39, which we are now discussing, provides that:
If the person against whom the [deprivation] order is proposed to be made applies in the prescribed manner for an inquiry, the Secretary of State shall … refer the case to a committee of inquiry consisting of a chairman, being a person possessing judicial experience, appointed by the Secretary of State and of such other members appointed by the Secretary of State as he thinks proper";
and the proposal in the amendment is that the Secretary of State shall be bound by any recommendation of the committee of inquiry.
Your Lordships will see that under the provisions of subsection (8), the Secretary of State can make rules,
for conferring on any such committee any powers, rights or privileges of any court, and for enabling any powers so conferred to be exercised by one or more members of the committee".
So that this committee, set up by the Secretary of State, selected and chosen by the Secretary of State, enjoying the full powers, rights and privileges of any court is, your Lordships may think, in as good a position to decide whether the presence of the citizen in question would not be conducive to the pubic good as is the Secretary of State himself.
§ The reference back again to the Secretary of State would, in a sense, be putting the Secretary of State in the position of being a judge in his own cause. I should have thought, in view of the nature of the committee that is being set up, that it would be appropriate that there should be acceptance by the Secretary of State, and, indeed, by the Government, of the decision of this committee, set up by the Secretary of State, in whom one would hope there would be every reason to have confidence. I beg to move.
§ Lord Mackay of Clashfern
It might be of assistance if I begin by saying that of the 10 cases of people deprived of citizenship in the United Kingdom, five have been referred to a committee of inquiry, and in all cases the Secretary of State's decision was in accordance with the decision of the committee, None of the cases arising in the dependencies were looked into by a committee of inquiry, so we have no really relevant experience of a case in which the committee of inquiry and the Secretary of State have come to different views. Therefore, as the noble and learned Lord said, we should expect the Secretary of State to go along with the view of the committee of inquiry, and that in practice is what has happened. In principle, therefore, one would expect the Secretary of State to be very unlikely to dispute or depart from a recommendation of a committee of inquiry of this kind looking into his proposal. However, it is going a bit further to say that he should be bound. For example, new facts could emerge which might dispose the Secretary of State to hold his hand, despite his own original proposal. He would be precluded from doing so by this amendment if the committee had recommended for deprivation. So the noble and learned Lord's amendment would not necessarily tell in favour of the person 452 who is the subject of the proceedings.
Perhaps—more important—I should mention the principle which I think is generally accepted in your Lordships' House, that Parliament should not absolutely tie the Home Secretary's hands where security considerations may arise. Security cases are not excluded from the ambit of Clause 39. In fact, there have been deprivations of citizenship on grounds of espionage. Fuchs and Prager are examples. One would like to think that it was inconceivable that a committee of inquiry would disagree with the Secretary of State's view in that kind of case, but one cannot be absolutely certain or absolutely take it for granted. As your Lordships will know, security cases are taken outside the ambit of the statutory immigration appeals system. Although cases are referred to a committee of three wise men, their recommendations are not binding on the Secretary of State. They are there to give a second view, as it were. Therefore I would suggest to your Lordships that the practical aim which the noble and learned Lord's amendment seeks to achieve is achieved in practice and that there may be very exceptional cases where it would not be in the interests perhaps of the subject himself that this amendment should pass. It would be in accordance with a very sound general principle that the Secretary of State's hands should not be absolutely tied, although he would give the highest regard to the result of a committee's deliberations. In the light of that, I hope that the noble and learned Lord will feel able to withdraw his amendment.
§ Lord Renton
While supporting my noble and learned friend, may I presume to add just one further point in support of what he has said: that the Secretary of State is answerable to Parliament? He has been answerable so far under the present law, which is being repeated in Clauses 39 and 43. If he is answerable to Parliament in those exceptional cases to which my noble and learned friend has referred, he must take the responsibility instead of simply being allowed to say by statute that the responsibility shall pass to this committee of inquiry which he has appointed.
§ Lord Avebury
May I ask the noble and learned Lord two questions? First, he mentioned that there had been two cases where a person had been deprived of his citizenship on grounds of security. One was Klaus Fuchs. I remember his case. I did not catch the name of the other.
§ Lord Avebury
In those cases to which the noble and learned Lord referred, I believe that they were convicted of espionage in a court of law. Presumably, therefore, to revert to what the noble Lord, Lord Gifford, said on the previous amendment, they were properly deprived of their citizenship because they made false representations in taking the oath of allegiance. So that there need have been no secret considerations entering into the Secretary of State's decision. It must have been obvious, because of their conviction in a court of law, that they had acted falsely in swearing 453 the oath of allegiance.
What I want to ask the noble and learned Lord is whether there have been any cases where a Secretary of State has deprived a person of citizenship without any due process of law—without any conviction having been secured against him in a court on grounds of espionage. If not, it would seem that the argument is not a very good one because every time a conviction is secured it is obvious that a person can properly be deprived of his citizenship without any discretion being exercised on behalf of the Home Secretary because he comes into the categories set out in subsection (1).
The other question I wanted to ask the noble and learned Lord—and I suppose the answer must be, yes—was whether it is possible to proceed by way of judicial review against the decisions of the tribunal. If that is so, then the new facts which he mentioned as potentially coming to light after the committee has made its recommendation could be the subject of legal proceedings. It would not be necessary for the Home Secretary to enter into the picture and perhaps give a favourable decision where the committee had given an adverse one.
§ Lord Elwyn-Jones
I have been interested also in the situation where, after the matter has been referred to this committee, new facts have come into the possession of the Secretary of State which were not available to the committee. I can quite see the force of the argument where the new facts might be beneficial to the applicant and might therefore result in the Secretary of State, in the light of the new evidence, reversing the earlier decision to deprive him of citizenship; but what if the later factual information was adverse in the face of a decision of the committee that he was not to be deprived of citizenship? Would there then be a fresh hearing? I imagine that there ought to be, because presumably the applicant would be entitled to be heard on the fresh facts. I do not wish to push that too far, but an interesting problem has been created by what, on the face of it, looks to be, if I may say so, a very powerful argument by the noble and learned Lord.
§ Lord Mackay of Clashfern
If I may answer the noble and learned Lord's question, as it is fresh in my mind, I think the answer is that if the facts were in favour of the subject of the proceedings then the Secretary of State might feel disposed, contrary to the recommendation of the committee, not to go ahead, and if this amendment were passed in this form it would preclude that. On the other hand, I think it is fairly plain that if the committee were to be in favour of the subject and then some further facts were to emerge against the subject, the Secretary of State would not feel it right to proceed on that basis without submitting those facts to the committee to see whether the new facts changed the minds of the committee.
With regard to the questions that I was asked by the noble Lord, Lord Avebury, the situation is that there were some cases where there were no proceedings; I think it is not immediately clear that it was to do with 454 security. But the point that I am making on this matter has little to do with that. The Secretary of State's decision as it is related to the decision of the committee of inquiry, as I see it, has nothing to do with the question that we were discussing earlier. Therefore, whether or not there are proceedings prior to the decision to take action, there is the safeguard of this committee and it is really a question of the relationship between the Secretary of State's decision and the committee's decision that we are talking about now.
So far as judicial review is concerned, I think it is open to question whether judicial review would be available in the circumstances, but it is fairly obvious that the powers of the Secretary of State are confined to the grounds stated, and therefore I would expect some form of judicial review to be available.
§ Lord Elwyn-Jones
In view of the advice given by the noble and learned Lord the Lord Advocate about the procedural matters which I raised and which are not unimportant, I apprehend that these problems could be dealt with in the rules of procedure which are to be introduced for the benefit of the committee. In those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 39 agreed to.
§ 10.5 p.m.
Viscount Colville of Culross moved Amendment No. 141:
After Clause 39, insert the following new clause:
§ ("Appeal against refusal of registration or naturalisation.
. Where the Secretary of State—
§ The noble Viscount said: If that last amendment was described as a short point, I am sorry to say the subject matter of this one may be slightly longer, and I am a little sad that it should arise at this stage when I think I am right in saying we have only five minutes left for the Committee this evening. I hope I may be forgiven if I take a little of that time in explaining it, because it is a rather complicated matter.
§ It relates to the question of appeals against some of the Secretary of State's decisions. Under this Bill there are fundamentally two different sorts of decisions, as members of the Committee well know: there are those which are purely a matter of discretion in the hands of the Secretary of State, such as a decision on naturalisation under Clause 5; and there are many others which are matters of entitlement, which have been looked at by the Committee in many previous amendments, where it is not a matter of discretion—it is a matter of fact, and where there is already provided, at least implicitly, an appeal to the courts, a point to 455 which I should like to come back to a little later on another amendment. This particular amendment seems to me, if I may suggest it, suitable to be joined in discussion with the amendment standing in the name of the Opposition Front Bench, No. 142D, and I should like, if I may, to bring in my own Amendment No. 142 as something of a footnote. Perhaps I may deal with that first.
§ There are really two entirely separate matters in Amendment No. 141 and I want to keep them very distinct. I would like to begin with paragraph (a), because it is a small, entirely distinct but nevertheless, I think, slightly important matter; and it is with that that Amendment No. 142 is connected. In Clause 3 of the Bill there are, as we have been discussing at great length, a number of criteria which go towards entitlement to registration for people born outside the United Kingdom to a citizen of this country. Subsection (2) (c) and (d) provide criteria which involve the definition of what is called a close connection with the United Kingdom or an intention to maintain a close connection with the United Kingdom. I simply ask my noble and learned friend Lord Mackay this. I know that that is part of the system of entitlement which it is intended to deal with, if necessary, by way of appeal to the courts. But this is all brand new material, and what may or may not be thought by the Home Office to constitute a close connection or an intention to maintain a close connection will have to be worked out, no doubt by reference to facts and events in individual cases, and probably a very large number of decisions will be taken on this matter during the course of which the ground rules will be established.
§ The appeal upon this particular pair of criteria—and of course the same applies to citizenship of the dependent territories under a later provision—will at some stage be taken, by way of appeal on judicial review, to the courts. What I am afraid of in this connection is that whatever may have been supposed to be the ground rules laid down by the Home Office as the cases emerge will turn out to be very ill-matched with the individual case or series of cases that happen first to come on appeal to the courts. The courts will have no particular reason to look at the totality of the ground rules that the Home Office is using. They will simply decide upon the individual facts of the case that is before them. The build-up, therefore, of the correct criteria to establish these two forms of close connection will depend entirely upon the chance of who, and in what circumstances, takes a matter for the first three or four times to the courts. I am concerned about that because it seems to me that, although it is put in the Bill as a matter of entitlement, it is in fact, in the first instance at least, really going to be a matter of absolute discretion until some form of series of case law, some succession of authorities, has been laid down which will then enable people to know the situation. Therefore, my first question—it is an entirely separate point under paragraph (a) of this amendment—is as follows: Can my noble and learned friend help the Committee by saying how the would-be applicant for registration will know what the Home Office means by "close connection" under these two paragraphs, whether it is for citizenship of the United Kingdom or of British dependent territories? How are people to know until the case law lays it down in a haphazard 456 way for good or ill over the years? That is one point.
§ There is a totally separate point and this is one that I think most members of the Committee will be interested in, and, indeed, it is the one to which Amendment No. 142D of the noble and learned Lord, Lord Elwyn-Jones, refers, which is the appeal against the purely discretionary decision. The amendment in the name of the noble and learned Lord, to my eye, bears a marked resemblance to an amendment discussed at the Report stage in another place. I have studied with some care the reasons why my right honourable friend the Home Secretary felt that he had to reject the proposition that was put forward in that amendment. It is not in any way part of my case to try and argue for that amendment again—that is for those who have put their names to it.
§ However, the essence of the argument which was put forward by my right honourable friend on the question of naturalisation, seems to me to be really that it simply has to be kept as a matter of final decision in the hands of a political authority—in other words, himself. There are particular reasons for that and one of them, although no doubt a very rare one, is the case which has just been mentioned, of security. However, more particularly, there is the criterion of good character. Sometimes reasons for suggesting that a person seeking naturalisation has not convinced the Home Secretary that he is of good character may be able to be put forward, and I suppose that Lord Avebury's driving licence and driving test case is one of them. But in other circumstances I can fully understand—and, indeed, I remember from a few cases of this sort that I had to deal with when other Ministers were on holiday in the Home Office—that there are good reasons why one would not wish to disclose the arguments about good character.
§ In all, my right honourable friend said that he had come to the conclusion that this had got to be left to the Home Secretary of the day, subject to one form of appeal and one only and that was Questions and pressure in Parliament.
§ I hope that no member of the Committee will think that, in putting down an amendment to supplement the work that is done by Members of another place and Members of this House, I am in any way disparaging the enormous amount of work that they do on behalf of their constituents or those who approach them. Indeed, I suppose that there must be few people in the world who have not heard of the noble Lord, Lord Avebury, and the channel that he provides to the Home Office—there must be very few indeed in that regard. Nevertheless, even he cannot cover the totality of all the cases that have to be looked at by the Home Secretary in this connection. Indeed, there are many other discretions under this Bill which have to be taken up politically as well. Therefore, it seems to me to be no insult to Members of either House to suggest that we could look at an alternative form of appeal.
§ There was one subsidiary point which occurred to me, and that was that in this House it would be difficult to create a totally new tribunal with the financial implications involved, as there might be questions of privilege. So my eye fell upon the very provisions that we have just been discussing under Clause 39. I do not see any distinction in principle between the type of decision that is taken under Clause 39 to 457 deprive a person of his citizenship, and the type of decision that is taken, for example, under Clause 5 to grant a person citizenship by naturalisation. In both cases these are exercises of pure discretion by the Home Secretary. In the former case of deprivation—partly no doubt because it was in the 1948 Act—in this Bill the Government have reproduced a sort of appeal procedure, which we have just been discussing. In principle, I can see no reason why a similar sort of appeal procedure should not also attend the similar exercise of discretion which goes with something like the grant of naturalisation.
§ Therefore, I sought to adopt the same machinery, not least because, for exactly the reasons my noble and learned friend has just been explaining in opposition to the last amendment, the machinery as it stands in the Bill does not ultimately stand in the way of the exercise of the Home Secretary's discretion in the last resort. No doubt, as has been said, the findings of the committee of inquiry would be a very weighty consideration indeed, but if for some reason there turned out to be a case which could not be disclosed to the committee of inquiry or which turned up later, as has just been discussed, the fact remains that recommendations of the machinery already in the Bill, designed to deal with discretionary decisions, are not binding upon the Home Secretary. Therefore, I hope that I have got over the primary objection which was raised by my right honourable friend in another place to the appeal system in this sort of case.
§ I have bent over backwards further still by leaving out any requirement to deal under this procedure with the question of good character. I have done this to make it easier for my noble friends on the Front Bench to accept something of this sort because, as I have said, I appreciate that there may be cases when the full facts about good character may not be able to be made known. But we have this from the debate and the speech made by my right honourable friend in another place. I would ask your Lordships to look at the requirements in Schedule 1; that is, the residential requirements under sub-paragraph (1)(a) and the sufficient knowledge of English or Welsh under heading (c). In both those cases my right honourable friend says that the reasons, if they are relevant, for a refusal are given. He goes on to say that in the case even of good character they try to give reasons if they possibly can. In the case of the requirement under paragraph 1(1)(d) of Schedule 1 about the intention, this must be a matter of fact or, at any rate, of impression which is as susceptible of being looked at by a committee of inquiry as by the Home Secretary himself. Therefore, the material for setting up a useful and, indeed, an effective committee of inquiry by way of appeal in these cases will, in fact, be there despite the provision, to which perhaps my noble and learned friend will point in Clause 43, that as this is a decision which depends entirely upon discretion, there is no requirement to give reasons.
§ We have an undertaking in another place by my right honourable friend that in the matters to which my amendment relates and, indeed, in the question of good character also on some occasions, reasons will be given. Therefore, the matter will at least be justiciable in front of the committee of inquiry. I would suggest 458 to the Committee this is the absolute minimum, the mildest, the most unobjectionable sort of appeal procedure that anybody could devise. I think it meets all the objections that were put forward to the proposals in another place. It leaves the discretion in the end with the Secretary of State, if he must have it, but I do believe that at the same time it is in total accordance with a principle that is already inherent in the Bill and has been in this nationality legislation ever since 1948. Of course, it will be used more than the deprivation of citizenship cases, the five we have heard about, but as a matter of principle it is enshrined, and has been for many years, in our legislation.
§ Therefore, I hope that, even if no conclusion can be reached about this tonight, this might be considered by my noble friends upon the Front Bench as being an acceptable way to deal with something that believe has really been a cause of widespread concern, and which will not in any way run counter to any of the principles that they really care about under this legislation. I beg to move.
§ 10.22 p.m.
§ Lord Mishcon
I am sure the Committee will be grateful to the noble Viscount, Lord Colville of Culross, for the way in which he moved this amendment with such clarity and such appeal. Indeed, if my amendment that I have the privilege of moving were not on the Order Paper I should be very much inclined, if I may say so, to say "amen" to all that he has said. I am going to say straight away that if the noble Viscount's amendment were acceptable to the Government, I would not seek to press the amendment that is in our name to which I shall refer in a moment, because I think it would be a sensible way of getting what we regard as so important, namely, the right of some appeal on the matters of entitlement and discretion put into this Bill.
I am going to venture a suggestion that there are reasons as to why the amendment to which the noble Viscount was good enough to refer, which was Amendment No. 142D, has certain advantages in our view; but I am going to repeat what I said, which is that if the Government felt that they could accept the noble Viscount's amendment and preferred it to ours, we would not stand in the way in the very slightest.
There are the following considerations, if I can briefly put them without repeating in far inferior language what the noble Viscount has already said. The first point is this—and the Secretary of State in another place made this perfectly clear. It is important, especially important with the great number of cases now that will come within the naturalisation net and the registration net under this legislation, that justice should be seen to be done. The Secretary of State acknowledged that fact but felt that he was in a difficulty in regard to the discretion which he thought ought to remain with him and with Parliament.
To the ordinary citizen this matter is going to be of great importance. There is no doubt about that. If one finds oneself in jeopardy of losing one's liberty under our law, which is our great pride, there is always a right of appeal. If, indeed, one is dissatisfied with 459 the alternation of one's status in regard to marriage, there is in most cases a right of appeal. To have no right of appeal, and to be at the mercy completely of the Executive and the Administration when the whole future of a family, their dignity, their ability to have certain rights to belong is at stake, would surely be against the whole principles upon which we normally act.
To say, "A civil servant has decided this. A Minister has given his imprimatur. There is no further right to question" cannot be right. Whether or not the Secretary of State has up until now kept the discretion within his hands under successive Governments, we are first of all looking at the whole law of nationality anew. It is a new Bill. Secondly, we are dealing with far more cases that are now going to arise than we have ever dealt with before. That is the first point. Secondly, normally the citizen does not feel that he has the chance that he ought to have to air his grievance against a decision, or to bring matters into the open, when he conies before a body which is set up by the very department that has made the decision and where that body reports back to the Secretary of State and it is for the Secretary of State to decide, one imagines, whether he follows or does not follow the recommendation—this is really what it amounts to—of any committee of inquiry.
Therefore, we thought that the proper way of dealing with this matter is to let the citizen know that there is a body in existence which will have the great advantage that the noble Viscount mentioned of building up a whole wealth of experience and of precedents in regard to the very matters such as close connection, which he mentioned. It seems a long time ago that we debated that, but it was only yesterday or the day before. Therefore we thought in terms of a body that would be set up and we called it in this amendment "The Citizenship Appeal Tribunal", which would be appointed by the Lord Chancellor and would consist of the judicial appointments and possibly other appointments that are mentioned in the amendment. It would be dealing with all kinds of appeals relating to this Act where the Secretary of State had dealt with registration and naturalisation, whether by entitlement or discretion.
That is the sort of body that would get all this experience, where the citizen would know that he was standing before a High Court judge—and the respect that our judges have in this country is something that I believe is the envy of other countries—and he would feel that this matter was being looked at de novo. With the appellate tribunal, if I can call it that, of that nature, what has the Home Secretary to fear? The tribunal will have a lot of experience. It will have all the papers before it. There is no reason why some of the papers, if they relate to security or even (if I am allowed to say this to the noble Viscount) to matters of character, cannot be before that tribunal, who can deal with them in a perfectly proper manner without having to embarass the Secretary of State at all. We all know that there are documents which can be looked at which are confidential and there can be private sessions if necessary on the security matter. The matter can be protected in that way. It seemed to us that this was the proper way, which would deal with the whole 460 gamut of cases that would come by way of appeal, and the citizen would know that the ultimate decider upon these matters would indeed be this tribunal.
I should like to turn quickly to the matter of judicial review, which the noble Viscount allows to come into the procedure which he is suggesting to your Lordships' Committee in another amendment.
Viscount Colville of Culross
No, not in this connection. The question of judicial review which I wish to discuss in another amendment is specifically not intended to deal with the discretionary decisions.
§ Lord Mishcon
I was merely going to say that, again, judicial review would not give that wealth of experience because a judicial review would involve a judge and involve a different judge each time.
I should like to conclude by re-emphasising what I tried to say at the beginning of my remarks. First, it is essential—I am sure the Committee will agree—that there should be an appeals procedure. Secondly, if the Government were to say that, in spite of my plea for what is set out in our amendment, they would concede the procedure set out in the noble Viscount's amendment, my noble friends and I would not press our procedure. I merely hope that the Government have now heard enough views expressed on this matter to make known their own.
§ 10.31 p.m.
§ Lord Rawlinson of Ewell
As a common lawyer I would instinctively prefer review by the courts wherever possible, but I find some difficulty in the judicial review of these matters. When we were discussing the last amendment I remembered having to appear, as Attorney-General, under the provisions then in force, which had been introduced by a Labour Government in 1966, with regard to the deportation of Rudi Dutschke. This was an absurd procedure, whereby a part of the proceedings was in public and a part was in private and secret. One had to deal in public with matters which appeared to have no relevance but which in fact did because they were going to be dealt with in secret. This created great confusion and ultimately the procedure was abandoned. But it led me to think about the usefulness of such a tribunal, because if the tribunal had decided one way and that way was against the Secretary of State, the Secretary of State would have been forced to resign. There was no question but that he would have had to leave office if the advisory committee had found differently on a matter of deportation.
I find the judicial review a matter of very grave difficulty. As, through the courtesy of the noble Lords opposite, we are dealing with their amendment as well as the amendment moved by my noble friend, I should like to make some comments on the refusal of registration. Since, as has been pointed out, that refusal would not be discretionary there would be ordinary judicial review; that is, in the matter of outstanding registration.
But it is the question of naturalisation which the noble Lord's amendments really deal with. I find it incompatible with the general principles underlying 461 naturalisation. That has always been a matter for the Executive—formerly the Sovereign, then handed over by the Sovereign to Parliament, and then placed by Parliament in the hands of the Secretary of State. After all, it is not a right. Nobody has the right to another country's citizenship; nobody has a right to naturalisation in another state. It is Parliament which has to lay down who may or may not be naturalised. Therefore, it must remain—must it not?—in the discretion of the Secretary of State, and it must remain an absolute discretion.
I believe that a judicial review would create more difficulties. It would create more precedents, and therefore not only the extant case would be dealt with, but future cases also would be bound by dealing with that particular case. There would be a loss of control by the Executive as to who should be allowed naturalisation. I believe it would be very difficult to create objective tests. I believe it would lead to inflexibility, whereas at the present time there is much more flexibility.
As for the practical requirements for the applicant, in respect of naturalisation he must have residence and be able to speak English. Those are matters which, after all, he can himself correct; he can learn the language and he can live in the country. There is, of course, the question of security and we should not underestimate it. The process which has previously been in the hands of Secretaries of State of different Administrations has very rarely been criticised, and I think it has been exercised by all those Secretaries of State fairly and rightly, a lot of it with a great deal of information which it would not have been possible for the Minister to disclose to the public.
I find in this area, therefore, that the formal right of appeal is not appropriate. I feel that we have a Commissioner for Administration, and a very independent gentleman we have there at the present time, and I believe that this is a matter we have to leave to a Minister who is answerable to Parliament. I say with great respect both to my noble friend—his point is rather separate from that with which I am dealing; I am dealing more with that contained in the amendment of noble Lords opposite—and to the Committee that this is a matter which one has to leave to the Executive, who will be answerable to Parliament.
§ Lord Avebury
Exercising the most painful self-restraint, I rise merely to say in a sentence that I warmly support the speeches of the noble Viscount, Lord Colville, and the noble Lord, Lord Mishcon, in support of some form of right of appeal.
§ Lord Mackay of Clashfern
In the Government view, a right of appeal in an area in which Parliament is conferring an absolute discretion on the Secretary of State is inappropriate. In our view, naturalisation should remain, as it always has been, a matter of discretion for the Secretary of State. In days long gone by it was a matter within the gift of the Sovereign; later, powers to naturalise were exercised by Parliament; but for a long time, indeed since 1844, powers in respect of naturalisation have been vested in the Secretary of State as matters of absolute discretion.
It is apparent that many of the matters which have to be weighed, as my noble and learned friend Lord 462 Rawlinson of Ewell said in the light of his great experience in this field, are matters which are essentially not justiciable, and the amendment in the name of my noble friend Lord Colville recognises that by focusing on only some of the criteria for naturalisation as being subject to the remit of the tribunal he has in mind. Accordingly, I respectfully suggest to the Committee that to create a right of appeal in the manner proposed in the amendment to which the noble Lord, Lord Mishcon, spoke would be inappropriate.
As for the alternative suggestion in the amendment spoken to by my noble friend Lord Colville—as one would expect of him, it is an extremely original and good idea to make use of what is already in the Bill—the situation in naturalisation is somewhat different from the situation of Clause 39. In that clause, the power of the Secretary of State to deprive of citizenship is very closely controlled, as indeed one would expect. In the naturalisation area, criteria are set out, but over and above all that, a very clear discretion "may if he thinks fit"—is conferred on the Secretary of State.
My noble friend recognises very clearly that any form of appeal machinery involves expenditure of resources, and the mere fact that Clause 39 contains provisions for a committee of inquiry procedure—which, as I said, has been used only five times since 1948—is a very different thing from the kind of exercise he would have in mind for the tribunal under this amendment. Accordingly, similar though they are in appearance, in reality they are so very different that I would invite your Lordships, while grateful to my noble friend for his suggestion, not to go along with it.
Matters on this aspect have been so fully dealt with by my noble and learned friend Lord Rawlinson that I do not think that I should keep your Lordships waiting by listening to me any longer. There are, however, some matters which were mentioned by my noble friend Lord Colville at the introduction of his speech which I should mention. The first is that there is no need, as I see it, for any kind of appeal system against matters of entitlement. He says that the Home Office will have to build up some kind of view on "close connection". Well, it is a question of applying the words "close connection", both of which are fairly well known, to the circumstances of a particular case. I cannot see that having any form of tribunal will obviate the necessity for building up some form of case law in that respect. Accordingly, I would respectfully suggest that that first branch of the amendment really does not provide a basis on which any form of special appeal is necessary. On the second branch, the question of discretion I would submit is paramount. I hope that in the light of these considerations my noble friend will feel able to withdraw the amendment which he has put down and that your Lordships will agree with the view that the provisions in the Bill are appropriate for this matter.
Viscount Colville of Culross
There are no provisions in the Bill, and that is just the trouble. I find the greatest possible difficulty in supporting the amendment that was gently advocated by the noble Lord, Lord Mishcon, because when you get into this area of discretion I can see some of the difficulties which my noble and learned friend, Lord Rawlinson, and my 463 noble and learned friend on the Front Bench have mentioned. I think they are genuine points which one must try to bear in mind, particularly since this matter has been extensively canvassed in another place on almost identical wording. We must have a new thought about it.
My noble and learned friend on the Front Bench has really said nothing which is inimical to the second part of my amendment—that is to say, where it deals with a non-binding appeal procedure against naturalisation—except for one thing. I suppose in the end it is this that is going to kill the whole matter. He sees financial implications. Everybody in this Committee knows that anyone who suggests the imposition of further financial burdens upon the economy at the moment is going to be about the most unpopular member of your Lordships' Committee or indeed of either House of Parliament.
I appreciate that this is a practical objection at the moment, but I wonder whether, when we are, for the first time for a very long period indeed, and with a very radical new approach, looking at the question of nationality, we should allow that point alone to prevent us from providing a piece of machinery which is otherwise, I think, if I analyse my noble and learned friend's speech, wholly unobjectionable. I could not detect any good reason in his speech, other than that, why we should not have a procedure of this sort. He did not reproduce any of the objections that were voiced by my right honourable friend in another place on the earlier occasion, and I shall look very carefully, not tomorrow but on Monday, at the Official Report to see exactly what he said in order to find out whether that is a correct assessment.
I am obviously not going to press this matter tonight, in particular since I know perfectly well that there are technical omissions in the amendment and it could be drawn a great deal better. But I say to my noble friends on the Front Bench that this is not the end of the matter. I shall look at it again, and I think there is a good deal of support in this Committee. I am not suggesting anything radical, anything obstructionist, anything other than a very minimal, but nevertheless extremely important, piece of protection for the citizen.
Everybody knows that these applications are made and are refused, and are taken up through one House or the other and the decision is reversed. That means that the decision is not always infallible in the first place. Why should only Members of the two Houses be considered fit to do this, if they so choose? Of course, they are conscientious people, but even they can slip sometimes. But why should they be the only channel whereby people seeking these discretionary rights—and of course they are discretionary rights—should obtain any kind of recourse? The Parliamentary Commissioner can make recommendations, but he can confer no rights. There are, I fear, no "teeth" in the Parliamentary Commissioner. He can but criticise maladministration, he cannot do anything about it, and he cannot force anything to be done about it.
Why should we not have some form of statutory provision which would deal with this matter and which would, incidentally, I should have thought, take a considerable load off Members of both Houses in regard to some extremely disputatious matters? I 464 shall seek to withdraw the amendment this evening, but I am afraid that I am in no way convinced that the Bill is complete and perfect without a provision of this kind in it.
§ Lord Elwyn-Jones
I should like to say how delighted we are on this side of the Committee to hear of the intention of the noble Viscount to persist with this matter. This is absolutely crucial. He has spoken as the considerable common lawyer that he is. I am delighted to hear him, and we shall support him in his endeavours.
§ Amendment, by leave, withdrawn.
§ 10.47 p.m.
Baroness Birk moved Amendment No. 141ZA:
After Clause 39, insert the following new clause:
§ ("Grounds of citizenship
§ .—(1) Where a person is or purports to be a British Citizen by reason of his birth in the United Kingdom or by descent, he shall not be treated as if he were not a citizen unless the Secretary of State shall give the person notice in writing informing him of the ground or grounds on which it is proposed to treat him as if he were not a citizen.
§ (2) If a person whom the Secretary of State proposes to treat as if he/her were not a citizen, applies in the prescribed manner for an inquiry, the Secretary of State shall, and in any other case the Secretary of State may, refer the case to a committee of inquiry consisting of a chairman, being a person possessing judicial experience, appointed by the Secretary of State and of such other members appointed by the Secretary of State as he thinks proper.
§ (3) The provisions of subsections (8), (9) and (10) of section 39 shall apply to this section.").
§ The noble Baroness said: This amendment concerns a point that is quite different from the other amendments, between which it appears to have been sandwiched. The purpose of the amendment is to alleviate to some degree the uncertainty that will exist in future about the citizenship of children born in the United Kingdom. It would also assist in resolving difficult cases of citizenship by descent for children born abroad.
§ Under Clause 1(1) of the Bill it will be impossible for many parents to be absolutely certain whether or not their child has been born a citizen. The need for the amendment arises because often parents will be unable to say whether their children are citizens, and further-more, some parents who assert their children as citizens might in fact be disbelieved. They might be disbelieved by officials, by perhaps hospital receptionists, or by other administrators with whom they come into contact. Without some positive proof being offered they will find it very difficult to establish the citizenship of their children.
§ Therefore, we think it reasonable that there should be available to parents a process whereby they can claim the rights that their children possess. But it is particularly important that children about whose citizenship there is a doubt should not be in danger of deportation under the new immigration rules which the Government intend to introduce. I should think that that situation would arise most frequently on an application for a passport. Although some of the people to whom I am referring might be adults, or young adults, in the terms of the amendment the majority would be children.
§ Therefore the amendment would ensure that the Secretary of State would have to give reasons why a 465 child was being treated as a non-citizen. The burden of proof would have to be on the Secretary of State to show why he thought that the child or adult was not a citizen. If at that stage the Secretary of State's information was shown to be mistaken, then there would be no possibility of a citizen being unfairly deported. But as the Bill stands at the moment unamended it is quite possible that some children who are citizens will be wrongly deported. After all, even with the best of intentions, there is always room for some error.
§ They might be children whose citizenship by descent had been acquired by reason of a parent's employment, and where the Secretary of State was advised, incorrectly but quite innocently, that the employment in question was not covered by Clause 3. They might be children born here to legally-settled persons whose legal settlement the Home Office was questioning on the ground of alleged fraud when entry was originally obtained. These are just some examples of what can happen. To safeguard the people concerned, and particularly, in this case, children, this amendment would, we believe, be the minimum, surely, that we should provide. I therefore beg to move.
§ Lord Gifford
May I briefly support the amendment that has been moved, and point out that I think it raises a very important point which has become of great concern following a recent decision of the Court of Appeal in a case called Parvaz Akhtar. The way in which the matter concerned happened was that where someone was registered as a citizen the Home Office later took the view that he was not in fact the person he said he was, that he was not the son of a Commonwealth citizen who was therefore entitled to be registered, but that in fact he was someone else completely different and was not entitled to be registered—in effect, that there had been a fraud.
In that case the requirements of what is now Clause 39—the possibility of depriving someone of citizenship—could be by-passed because it was not a question of saying, "You are a citizen, but you have obtained it by fraud", but of saying, "You are not a citizen at all". I may not be making myself entirely clear, but the point is this. Where someone who believes himself to be a citizen is then under challenge by the Home Office and possibly under threat of deportation, as the noble Baroness said, because of that challenge, there ought to be the same possibility of a hearing by the committee of inquiry as there would be if there had been the deprivation of citizenship procedure.
§ Lord Belstead
I will certainly look carefully at what the noble Lord, Lord Gifford, has said, but I would have thought, having listened to the noble Baroness, Lady Birk, and to the noble Lord, that the right way to deal with these cases would be for them to be taken up in the courts. I believe that the system of being able to do that offers this particular advantage over what is being proposed in the amendment. At present, the courts are very much a matter of last resort where a person has already provided the Home Office with what they regard as sufficient and reasonable evidence of their claim to citizenship but without success.
The provisions of this new clause would be activated right from the very beginning of the process. A person 466 would be able to demand an inquiry as soon as his or her claim to citizenship had been refused, even if he or she had not provided any documentary evidence to support the claim. I am bound to say that this could only lead to a substantial addition to the burden of the nationality division and the courts, and to longer delays. I really would have thought that the right way to deal with these matters would be straight to the courts if that is what the aggrieved party thinks is necessary, and I must say that I do not think that these are cases where a special inquiry procedure should be set up.
§ Baroness Birk
In view of what my noble friend Lord Gifford said and the case he quoted, which the Minister said he would look at, and also because I am rather concerned as, of course, the courts do not have to go into the merits of the case, I wonder whether the noble Lord will look at it again, as I shall and perhaps come back to it at Report stage. Or he may feel that he can write to me in the meantime. With that I will withdraw the amendment.
§ Lord Avebury
May I make a point about the remark that the noble Baroness has made? During the course of today's proceedings there have been half a dozen instances where people have asked the Minister to write to them, and the Minister has usually nodded and said he would do that. It is only a partially satisfactory procedure because while the recipient of the letter may know what is in the Minister's mind, others, who may be equally interested, want to know what Home Office policy is in case it may modify their stance on Report stage or change their minds about an amendment that they personally want to introduce. I hope the Minister, whether the noble Lord, Lord Belstead, or the noble and learned Lord the Lord Advocate, will bear in mind those interested in these matters apart from the person who is promised the letter.
§ Lord Belstead
If it is appropriate, of course we shall do our best to see that those who should receive letters do get them. This is not a case where I promised to write; what I promised to do was to look carefully at what the noble Lord, Lord Gifford, said. The noble Baroness said that she, understanding that I would do that, would feel that she was free to return to the subject. That was how the matter was left.
§ Baroness Birk
No, I also said perhaps the Minister would write to me about it in between stages and he nodded. That is why the noble Lord picked that up.
§ Lord Belstead
I do not think we can undertake to write too many letters. My undertaking was to look at what the noble Lord, Lord Gifford, said. That was my undertaking. I do not think that I am going to go any further than that this evening.
§ Amendment, by leave, withdrawn.
§ Clause 40 [Regulations and Orders in Council]:467
§ 10.57 p.m.
Lord Teviot moved Amendment No. 141ZAB:
Page 35, line 28, leave out paragraph (e).
§ The noble Lord said: At this very late hour I am not going to detain the Committee for very long. I shall not refer to any notes but say that the purpose of this amendment is a probing one. I am concerned that there is in this clause a provision that the Home Office can charge fees for people who want to prove who they are. That is excellent. If the Home Office can do that, that is splendid. I should like to point out one or two pitfalls that they might encounter.
§ I should declare an interest because I research registers and records. Until now, I believe any person who wanted to prove who they were had to do it themselves or employ other people to do so. This clause refers to Home Office records or any other records, births, marriages or deaths, and this type of research is extremely time-consuming. I can see an empire of civil servants being set up to look into this. This might be admirable if it could pay, but civil servants' costings can be rather inflationary. I am not asking my noble friend to answer that point, but I wonder whether people will be trained to do this service. Also, how much is it going to cost to do it? If they are not going to do it themselves, it should be made clear to people who want to prove themselves to be citizens of this country that they can equally well do it themselves or employ other people besides the Home Office to do it. Perhaps it might be better if, for a small fee, they could have an advisory service in order to put them on the right track. I beg to move.
§ Lord Avebury
I should like an assurance that if any such searches of registers are carried out in connection with an inquiry made by a Member of Parliament or a Peer on behalf of a correspondent that no fee will he charged.
§ Lord Trefgarne
If your Lordships will allow me, I will, as did my noble friend Lord Teviot, paraphrase the remarks I was going to make, not only in the interests of brevity but also to alter slightly the thrust of what was originally proposed for me to say, to make it more in line with the wishes of my noble friend and indeed of the noble Lord, Lord Avebury. I want to say, first, that it is the purpose of these provisions that fees should be charged for searches of Home Office records primarily. I have to admit that the second part of the subsection to which my noble friend referred does not make that entirely clear. I agree that, for example, the words,or by any prescribed authority, which are or may be relevant for the purpose of determining the status of any person under this Act or any of the former nationality Actsmay appear to indicate that the searches could go wider than mere Home Office records.
I am advised that the intention is simply that the searches should be conducted within the confines of the Home Office records, some of which are now held at the Public Record Office by virtue of the fact that they are of some particular age; but it is also thought possible that the records of the Registrar-General might need to be searched in certain cases. I agree that the reference in the subsection is not as clear as it ought to be, and I will consider that matter; and if 468 my noble friend wishes to return to the point at a later stage, perhaps I can give him more satisfaction then than I can tonight.
I am afraid that I did not quite follow the point made to me by the noble Lord, Lord Avebury, but it sounded a reasonable one and, if he will allow me, I will study what he said in Hansard when it becomes available on Monday, and write to him about it, if I may.
§ Lord Teviot
Like my noble friend, I did not follow the noble Lord, Lord Avebury, either; but I have followed him to a certain extent. The Home Office records would not get anybody very far, because Clause 40(2)(e) says:the carrying out of searches in or of any registers or other records, being registers or records held in the United Kingdom by or on behalf of the Secretary of State or by any prescribed authority, which are or may be relevant for the purpose of determining the status of any person under this Act or any of the former nationality Acts".My noble friend has mentioned the Registrar-General. In some cases, having done these seaches, one has to look in certain other records as well. So I think, without any pushing from me, that there should be quiet consultation and one should leave it at that—knowing that Cinderella on Thursdays comes at eleven o'clock and not twelve. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 40 shall stand part of the Bill?
§ Lord Gifford
Clause 40 introduces a panoply of regulation-making powers, and although theoretically those regulations can be reviewed by Parliament, in practice they never are. I wonder if I may, as I indicated briefly to the noble Lord, Lord Belstead, that I would, ask one or two questions which appear to me to arise from some of these regulations. The first arises on the power in Clause 40(1)(b) relating to the way in which applications are to be made. A lot of applications for registration under this Bill are going to be made on behalf of children, and what I should like to be satisfied about is that proper consideration will be given to the peculiar circumstances which will arise when children are either orphaned and have guardians or are in the care of local authorities. For instance, it is essential that the applications to be registered as citizens, which may be in their interests, can be made by people who have parental responsibilities for them.
The second question that I want to raise arises on subsection (2) of Clause 40; that is to say, the provision for the charging of fees. I do not know whether we can have any indication of what the fees will be, particularly for the various kinds of registration which are introduced by the Bill, and for naturalisation. If the fee for all kinds of registration will remain at £50, which I understand it to be at the moment, what I would urge upon the Government is that they should consider a substantial reduction in that fee. There are so many people who will have an entitlement to register that I suggest that a much lower or a nominal fee is appropriate, rather than the very hefty fee which is now charged.
469 Thirdly, there is a provision under Clause 40(2)(f) for the supplying of an opinion in writing by the Secretary of State about a person's status. It may take away work from members of the Bar for the Secretary of State to be giving opinions in writing, which I am sure would be much more valuable than anyone else's opinion. Would the Minister indicate whether anybody will be entitled to get an opinion in writing about his or her status, if it is a matter of uncertainty? Finally, will the regulations make any provision for the time within which all the various steps which have to be undergone by applicants for registration and naturalisation have to be completed? We are introducing an extremely complex new system of registration by this Bill, and if the regulations do not provide for some kind of time limit I am very worried about the delays which will be suffered by all kinds of people who will have an entitlement to citizenship, let alone those who apply to be naturalised and who are already subject to the grossest delays.
§ Lord Avebury
I asked at an earlier stage whether the Minister could explain to me how the fees were to be determined, and I want to echo what has been said by the noble Lord, Lord Gifford: that £50 for registration and £150 for naturalisation is a very large sum of money to have to pay. I asked the Government whether they could inform me if it was their policy to recover by way of fees the whole of the costs of the officials who are employed in determining these applications. If that was so, I had to point out that in 1970 there were 90 staff in post and they determined in the course of that year 30,392 applications, which made 323 applications per employee; whereas in 1979 there were 186 staff in post—almost double the number—and they determined fewer applications, 24,586. There was a drop of almost two-thirds in the number of applications which were decided per member of the staff.
If this process were to continue, then in a few years' time it would cost not £150 but, as I said earlier, £300 or £400 for a person to become naturalised. I wanted to know whether it was to be the Government's policy to continue to recover the full cost of this staff, or whether they would exercise some reasonable restraint, such as not increasing the fees by more than the index of the cost of living. If they would give some assurance of that kind, it would be most helpful.
§ Lord Belstead
The noble Lord, Lord Gifford, has asked me four questions of which he gave me notice and which I shall now briefly answer. The first question was about applications which are made for registration, and for other things, on behalf of minors by those with parental responsibilities. The regulations prescribing the persons by whom applications are to be made will be likely to follow closely the existing regulations, and in cases of this kind applications have to be made either by the parent or by the guardian of the child. However, there are no regulations governing applications under Section 7(2) of the 1948 Act. The Home Secretary has discretionary power to register any minor. It is, therefore, possible for older minors to submit applications on their own behalf under this provision, or for local authorities to apply on behalf of children in their care.
470 The second question, which both noble Lords asked me about, was the question of fees. I am sorry, but both noble Lords are basing their questions on a premise which is totally different from that on which the Government base their premise. Both noble Lords asked whether fees for registration or naturalisation could be reduced. The situation which the Government are in is that we must control public expenditure. It must therefore remain Government policy to recover, so far as possible through fees, the administrative costs of nationality applications.
The third question which the noble Lord asked me was about opinions in writing. The noble Lord asked whether anybody can receive an opinion in writing. The answer is that it would not be our practice to issue a letter of the kind to which the noble Lord is referring to anybody but the person concerned or his representative, such as a solicitor.
Finally, the noble Lord asked me about the time taken for processing naturalisation applications. At the end of a very long day I can reveal one piece of information which may startle your Lordships because it startled me; that is, the really incredible increase in naturalisation applications in the last few years. In 1977 about 4,750 applications for naturalisation or discretionary registration were received. In 1978 the number was 7,000. In 1980 it had gone over 9,000. The number of applications has therefore risen by 92 per cent. in four years. Furthermore, the intake up to the end of May of this year was over 8,500, which is only 500 less than for the whole of last year.
When we talk about naturalisation procedures and the administrative matters connected with naturalisation procedures, we are talking about very serious matters. What I can say—which is perhaps constructive—to the noble Lord is that the Bill does one good thing to try to speed up the delays; namely, if one looks at Clause 41, together with Clause 48, one finds there procedures which I shall not go into in any detail but which we believe will be able to cut some six months off the period of delay in processing naturalisation procedures.
§ Clause 40 agreed to.
§ Clause 41 agreed to.
§ Schedule 5 agreed to.
§ Clause 42 agreed to.
§ Lord Denham
I think we have probably reached the time of day when any effort to get any further could be counter-productive. In the pious hope that starting again next Tuesday with new freshness we shall be able equally to be as brief and objective as possible, I suggest that we stop here, very much with the staff of the House in mind. I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.