§ 4.48 p.m.
§ House again in Committee on Clause 43.
§ Lord Elwyn-Jones moved Amendment No. 141ZB:
Page 38, line 8, at beginning insert—
("Subject to subsection (1) herein,").
The noble and learned Lord said: I bee to move Amendment No. 141ZB. The purpose and aim of this amendment is that subsection (1) should be made to prevail over subsection (2) of Clause 43 of the Bill. Your Lordships will be very familiar with the two subsections. Subsection (1) reads:
Any discretion vested by or under this Act in the Secretary of State … shall be exercised without regard to the race, colour or religion of any person who may be affected by its exercise.
That subsection is, or at any rate could be, a pivotal provision in the Bill.
But then, when one goes to subsection (2), subsection (1) is left in isolation; splendid isolation it may be, but ineffective. Subsection (2) provides that,
The Secretary of State … shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State … on any such application shall not be subject to appeal to, or review in, any court.
The proposal of the amendment is to insert the words, "subject to subsection (1) "at the beginning of subsection (2). I am gratified that already the noble Lord, Lord Boyd-Carpenter, and the noble and learned Lord, Lord Rawlinson of Ewell, have expressed at any rate sympathetic interest in what the amendment has in mind.
§ In our submission subsection (1) standing alone has merely cosmetic effect in the provisions of the Bill. If the circumstances shown to exist in a given case did establish or go to establish that the Secretary of State was not exercising his discretion in accordance with subsection (1), then the inclusion of subsection (1) in the second subsection giving it, so to speak, overriding effect on subsection (2), would at least give an opportunity to the complainant in such a case to have his case brought before the court.
§ I ask: Is the complainant in such a case to be left without any remedy whatever? If that is so, then the splendid words of subsection (1) would have no significance whatever in practice and would indeed, be something of a sham. I think it, therefore, imperative, if the Government's position on the Bill, that it is in no way discriminatory on grounds of race, colour or religion, is to have reality, that something must be done in Clause 43 to enable—and this is the purpose of the amendment—the matter to be opened judicially if the 695 circumstances are such that there are indications from the factual position in a given case that the Secretary of State has not been exercising his powers without regard to race, colour or religion. I need not say that this bears no reflection upon the present Home Secretary in whom I have, of course, the utmost confidence. But this is legislation for the future. It is legislation affecting quite fundamentally the minority peoples in our community and accordingly I greatly hope that this amendment will be accepted by the Government. I beg to move.
§ Lord Mackay of Clashfern
In my respectful submission it is not right to speak of subsection (1) of Clause 43 as being in isolation, or even in glorious isolation; it is part of the whole provisions of the Bill. I am sure that the noble and learned Lord who moved the amendment would accept that it is one of the fundamental principles of the construction of any Act of Parliament that it must be read as a whole and that therefore the court in reading subsection (2) of this clause would read it in the light of all the provisions of the Bill, including subsection (1). I think that that is abundantly established on the authorities in this branch of the law.
That having been said, the amendment is seeking to say that subsection (2) is to be subject to subsection(1), There is an inherent difficulty in that particular formulation. These two subsections are concerned with different parts of the process of dealing with applications for citizenship which are at discretion. Clause 43(1)—what might be called the anti-discrimination provision—is concerned with the procedures leading up to the decision whether to grant citizenship. Clause 43(2), on the other hand, is concerned with what happens after the decision is made. It seems very difficult to provide that a provision affecting one part of the process should apply to a separate part of the process. That is, we believe, a fundamental objection to the amendment as it stands and likely to introduce confusion into the Bill rather than clarity.
Clause 43(2) is in two parts, the first part dealing with the question of assigning reasons and the second part dealing with the question of decisions not being subject to appeal to or review in, any court. So far as the second part is concerned, as I said, it seems to us that that exclusion will be read in the light of the whole provisions of the Bill. But so far as the first branch is concerned—the giving of reasons—I must say that I cannot understand how the noble and learned Lord proposes that that part of subsection (2) should be subject to subsection (1) or, indeed, what that means in the circumstances.
Accordingly, in so far as the noble and learned Lord has explained the purpose of his amendment, then the rules about context and so on, to which I referred, would seem to mean that, under the Bill as it stands, what he is looking for is very much already so. So far as the first branch of subsection (2) is concerned, it does not appear to make much sense, if I may say so, with all appropriate respect.
Viscount Colville of Culross
Whatever may be the effect on any other Member of the Committee, my noble and learned friend has thrown me into a certain amount of confusion. I would have tended to suggest 696 to the Committee that it is not so much the glorious ioslation of Clause 43(1) that is the point, but the juxtaposition of it with Clause 43(2). When Parliament put into one and the same clause in a Bill that there should not be any appeal against a discretionary decision and at the same time that where discretion is used it must be done without regard to race, colour or religion, what court would not suppose that the two are to be read together in precisely the way that my noble and learned friend has said, but to precisely the opposite effect? In other words, surely most courts would be inclined to think that the provisions in subsection (1) were not intended to be subject to an appeal because of what comes in subsection (2). I do not think that that is what the Government want.
I do not see any reason why the Government wish to object—if there is the rare and conceivable case where you have actual evidence that a discretionary decision has been taken to the detriment of somebody because of his race, colour or regligion—that that matter should be precluded from being appealed. I do not think that that is what the Government want at all. I should have thought that they would underpin the concession which, in fact, subsection (1) consists of and which was added in another place.
Why will my noble and learned friend not take the point? I quite see that there might be something a little unworkable in the way in which the amendment has been drafted and it is probably not intended to relate to reasons, but the substance of it is something that needs to be made clear. As I said before, why do the Government insist that, instead of inserting a few simple words, they should leave a situation which is bound to lead, if it occurs at all, to massive and expensive litigation? What is the point of it? Why not make a small change and make the matter clear beyond peradventure?
§ Lord Boyd-Carpenter
I apparently jumped the gun on this point as regards the earlier amendment of my noble friend Lord Colville of Culross. I am bound to say that I found the reply of the noble and learned Lord the Lord Advocate on that occasion, though adroit and suave as ever, somewhat unconvincing. On this occasion I should simply like to ask him this question. Is it clear beyond peradventure that some person who, rightly or wrongly, has had the Home Secretary's discretion exercised against an application of his and who alleges that there is here an element of discrimination on grounds of colour, race or religion, could take this appeal to the court?
§ Lord Mackay of Clashfern
My answer to that is that to some extent it must depend upon the circumstances. But in an applicaton to the court to have the question determined, I should expect it to be argued in court that the protection afforded by the latter part of Clause 43(2) cannot apply to prevent review where it is suggested that the discretion which has been exercised is not a discretion which the Bill contemplates but something completely different. There may be other ways in which a discretion could be vitiated by considerations of that kind, apart from questions about discrimination under Clause 43(1). There may be inferences from other parts of the Bill or from general principle that would have that effect. 697 Certainly—so far at any rate-I would suggest to your Lordships that the juxtaposition of these two clauses requires the court to do justice where there is proof that discrimination has taken place, although, as I said earlier, our view is that the existence of subsection (1) is simply declaratory of the position. We cannot contemplate that the Secretary of State, the governor or lieutenant-governor vested with this discretion would act in breach of subsection (1).
§ Lord Mishcon
In another place after some debate the Government conceded the general principle contained in subsection (1); that is, that so far as the Secretary of State is concerned there should be no discrimination in regard to race, religion or colour. That was greeted with some satisfaction by those who are anxious to see harmonious race relations in this country and who had regard to the unfortunate feelings—whether or not they are deserved—that there is some sort of prejudicial element in this Bill, because that concession was at least an expression of Parliament saying that in any circumstances before the Secretary of State there must be no question of discrimination.
Some members in another place felt that this was a cosmetic exercise and nothing else. As I understand it, the Government were extremely keen to say that that was not so and that it was meant to be a principle that is very firmly embedded in the Bill. If I may put it respectfully, they did not make a very good job of embedding the principle firmly in the Bill. Certainly they did not make a very good job of it by putting that principle in the same clause—and this has been pointed out by other Members of your Lordships' Committee—as a subsection which said that you cannot ask the Secretary of State for any reasons as to why he granted or refused and you cannot appeal to any court against his discretionary decision.
The noble and learned Lord can speak with that accent of which we are so fond until doomsday, but without any question of doubt he will not convince the Committee otherwise than to say that there must be some doubt about this. When an advocate is appealing on behalf of an applicant, he is trying to say to the court "Would you please look at this case and decide whether or not there was discrimination? "In his opening remarks he has to say "Of course, I could not ask the Secretary of State to give me particulars as to why in the case of Mr. X, who happens to be white, who lives next door to Mr. Y, who was in this country for precisely the same time, and who, indeed, works side by side with his white neighbour in the same factory and upon the same work, Mr. X was granted naturalisation or registration—whatever it was that happens to be discretionary—and Mr. Y was not.
Furthermore, immediately drawn to the court's mind would be the second part of this clause, which would say in very distinct terms that in any event there could be no appeal against the Secretary of State's decision, because it was a discretionary matter. The hearing would end in a nullity or a farce. I know that it would be a long nullity or a long farce if an advocate of the capability of the noble and learned Lord was acting in the matter and was appearing before the court. But a farce or a nullity is no less the case 698 whether it be short or long, and it is the duty of this revising Chamber and—if I may say so with deference—the Government, to make the principle that was supposed to be embedded in the declarations in another place on this clause abundantly clear, and to say that in a case where discretion is alleged, without any question of doubt the applicant has the right of appeal and to deal with that matter before the courts.
All that I ask of the noble and learned Lord is this. We have heard three eminent lawyers upon this matter and one who is endeavouring hard before he leaves this world to deserve that title. If all four lawyers are of the view that this matter could not be debated before a court, or that it is very doubtful whether this discrimination matter could be debated because of the wording of Clause 43(2), then it must be the duty of the Government to say that at least they will take this clause back—unless the mood of the Committee is to be tested—and ensure that it is abundantly clear that on a matter dealt with by Clause 43(1) there is a right to have the matter investigated by the court.
The Lord Bishop of Rochester
Throughout the discussions in this Committee we on these Benches have been looking for assurances for those about whom we are concerned, who are fearful as to the consequences of this Bill and who, rightly or wrongly, misunderstand its motives and intentions. That is why we shall look forward with particular interest to the response at the Report stage to the amendments in the name of the noble Viscount which we have recently discussed, and why we think in this whole area involving the exercise of discretion it is very important indeed that there should be no doubt whatever as to the Government's intention. In the interests of clarity I would appeal to the Minister to take this back.
§ Lord Avebury
Perhaps I could say a few words in addition to the opinions that have already been expressed and with which I warmly agree, although it has been proved in practice that taking individual cases of discrimination before the courts or before any tribunal is not a very satisfactory way of asserting rights, because there can always be a multitude of reasons advanced as to why some decision has been made other than the question of race, religion, or colour. I anticipate that if the Secretary of State's decisions were queried or the governor's—and I agree with those who have said that we are not talking about the present Secretary of State—there would be a multitude of other reasons why he had declined to grant nationality, or to have exercised his discretion in favour of the applicant, under any of the other parts of the Bill where the powers are given to him.
What I want to ask the noble and learned Lord to tell me is this. If the Secretary of State's discretion is not to be questioned, does that also mean that a general investigation as to the way these powers are exercised by the Commission for Racial Equality would be legally impossible? My own opinion is that the general powers of investigation which we gave to this Commission for Racial Equality under the 1976 Act are a far better way of proceeding to examine discrimination over a broad area than the pursuit of individual complaints.
If the arguments that noble Lords have advanced are 699 correct, that these matters are not capable of being tested in a court of law, then the same thing would be true of the general investigations that are conducted by the Commission for Racial Equality. It was not so very long ago that the Home Office sought to prevent the CRE from conducting an investigation of the way that the Secretary of State uses his discretion under the Immigration Acts. Fortunately, that was found not to be possible by the courts, and the investigation was pursued. If we leave this clause as it stands the same arguments could take place all over again, and not only would individuals find it difficult to pursue complaints in the courts but also any general investigation of the use of these powers would be declared outside the powers of the Commission for Racial Equality.
§ 5.12 p.m.
§ Lord Gifford
May I briefly support what has been said by referring to the sense of bitterness which arises when somebody believes that he has been discriminated against for reasons of race or colour or religion; reasons over which in the case of race or colour he has no control, and in the case of religion should not be expected to play any part in the decision. When one is faced with a complaint of discrimination in other fields we now have a law which enables advisers to investigate whether there is evidence. I certainly have had experience of investigating allegations of discrimination against Government departments.
It is not a question of the integrity of the Secretary of State; it is a question sometimes of what is alleged against a particular official at a very junior level. Sometimes one finds there is no evidence, but sometimes one takes it to a court or tribunal and, whether or not the complaint is in the end found to be justified, the safety valve, the importance of having a forum in which this can be adjudicated, is of paramount importance.
I am bound to say with other noble Lords and noble and learned Lords that if a case of alleged discrimination came up against the Home Office under this Act I would hesitate indeed to advise someone that, even if there was a prima facie case, it was likely to succeed. The Treasury counsel, who are not slow to take points of jurisdiction and take points of this kind, would I am sure raise as a preliminary point that under this Bill there is no jurisdiction in the courts to review a decision however wrong or however unreasonable it may seem to be.
The Earl of Erroll
May I briefly rise to say that it seems to me that there is one thing that ought to be looked at on the religion side. There are certain sects in America who have some rather strange beliefs and who have been known to kill off rather a large number of people, and there may be moments when a Secretary of State has to exercise discretion. If these people have a total right of appeal on the grounds that they have been discriminated against purely because they belong to one of these extremely strange sects, that would not be right. I do not know whether elsewhere in this Bill there is any provision to stop this.
§ Lord Renton
May I just say to my noble and learned friend the Lord Advocate, as one lawyer to another, 700 ubi jus, ibi remedium: where there is a right there has to be a remedy.
§ Lord Elwyn-Jones
I think that this might be the moment for us to come to a decision about this matter. I regard it as quite fundamental. What may have happened in the history of the Bill is that subsection (1) came in late in the consideration of the matter. It was accepted by the Government as of fundamental importance, but of course they did not marry it with subsection (2). On the contrary, as the noble Viscount, Lord Colville, has said—and he attached most valuable weight to the juxtaposition element here, and the noble Lord, Lord Boyd-Carpenter, sought an answer from the noble and learned Lord about the situation—where an applicant claims to have evidence of discrimination, is he to have no remedy? Is he to have no opportunity of coming before the court? The answer given by the noble and learned Lord was, "Well, it depends on the circumstances". Of course it does. If the circumstances justify the proceedings, he ought to have a right to proceed. Accordingly, I think that this matter ought to be tested.
§ 5.17 p.m.
§ On Question, Whether the said amendment (No. 141ZB) shall be agreed to?
§ Their Lordships divided: Contents, 94; Not-Contents, 70.701
|Airedale, L.||Hunt, L.|
|Ampthill, L.||Jacques, L.|
|Ardwick, L.||Janner, L.|
|Avebury, L.||Jeger, B|
|Aylestone, L.||Killearn, L.|
|Balogh, L.||Lauderdale, E.|
|Banks, L.||Leatherland, L.|
|Beloff, L.||Lichfield, Bp.|
|Beswick, L.||Listowel, E.|
|Birk, B.||Liverpool, Bp.|
|Bishopston, L.||Llewelyn-Davies of Hastoe B.|
|Boyd-Carpenter, L.||Lloyd of Kilgerran, L.|
|Brockway, L.||Lovell-Davis, L.|
|Bruce of Donington, L.||McGregor of Durris, L.|
|Buxton of Alsa, L.||Massereene and Ferrard, V.|
|Campbell of Alloway, L.||Mishcon, L.|
|Caradon, L.||Nathan, L.|
|Chelwood, L.||Norfolk, D.|
|Cledwyn of Penrhos, L.||Northchurch, B.|
|Collison, L.||Northfield, L.|
|Colville of Culross, V.||Oram, L.|
|Cooper of Stockton-Heath, L.||Oxford,Bp.|
|Craigmyle, L.||Peart L.|
|David, B.||Pender, L.|
|Derwent, L.||Phillips, B.|
|Diamond, L.||Pitt of Hampstead, L.|
|Elliot of Harwood, B.||Ponsonby of Shulbrede, L. [Teller.]|
|Ewart-Biggs, B.||Redcliffe-Maud, L.|
|Gaitskell, B.||Renton, L.|
|Gardiner, L.||Rochester, Bp.|
|Gardner of Parkes, B.||Rochester, L.|
|Geddes, L.||Ross of Marnock, L.|
|Gifford, L.||Sempill, Ly.|
|Gladwyn, L.||Stamp, L|
|Gregson, L.||Stewart of Fulham, L.|
|Grey, E.||Stone, L.|
|Hale, L.||Strabolgi, L.|
|Hankey, L.||Strauss, L.|
|Hanworth, V.||Swinfen, L.|
|Hatch of Lusby, L.||Trumpington, B.|
|Houghton of Soserby, L.||Underhill, L.|
|Hughes, L.||Vickers, B.|
|Wallace of Coslany, L. [Teller.]||White, B.|
|Walston, L.||Worcester, Bp.|
|Wells-Pestell, L.||Wrenbury, L.|
|Whaddon, L.||Wynne-Jones, L.|
|Allen of Abbeydale, L.||Ironside, L.|
|Auckland, L.||Kinnaird, L.|
|Avon, E.||Kinnoull, E.|
|Bellwin, L.||Lane-Fox, B.|
|Belstead, L.||Lawrence, L.|
|Bessborough, E.||Long, V.|
|Boardman, L.||Lucas of Chilworth, L.|
|Bradford, E.||Luke, L.|
|Brougham and Vaux, L.||Lyell, L.|
|Campbell of Croy, L.||Mackay of Clashfern, L.|
|Cathcart, E.||Macleod of Borve, B.|
|Cockfield, L.||Mancroft, L.|
|Coleraine, L.||Marley, L.|
|Cottesloe, L.||Marshall of Leeds, L.|
|Cullen of Ashbourne, L.||Milverton, L.|
|Daventry, V.||Monk Bretton, L.|
|Davidson, V.||Montgomery of Alamein, V.|
|De La Warr, E.||Mottistone, L.|
|Denham, L. [Teller.]||Moyne, L.|
|Eccles, V.||Newall, L.|
|Ellenborough, L.||Nugent of Guildford, L.|
|Elles, B.||Orkney, E.|
|Erroll, E.||Orr-Ewing, L.|
|Fairfax of Cameron, L.||Rawlinson of Ewell, L.|
|Ferrers, E.||St.Aldwyn, E.|
|Fortescue, E.||Saint Oswald, L.|
|Fraser of Kilmorack, L.||Sandys, L. [Teller.]|
|Gainford, L.||Skelmersdale L.|
|Gormanston, V.||Spens L.|
|Gowrie, E.||Strathspey, L.|
|Gridley, L.||Sudeley, L.|
|Hailsham of Saint Marylebone, L.||Thomas of Swynnerton, L.|
|Henley, L.||Vaux of Harrowden, L.|
|Holderness, L.||Vivian, L.|
|Home of the Hirsel, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ [Amendment No. 141CZ not moved.]
§ 5.26 p.m.
Lord Pitt of Hampstead moved Amendment No. 141A:
Page 38, line 9, leave out ("not be required to assign any") and insert ("give in writing to the applicant his").
§ The noble Lord said: Following the great success we have just had, I hope we shall have another success with this amendment. I make no apologies for moving it. Though I have had a great deal of correspondence on the Bill, strange to say I have had more letters about the right of appeal against refusal of naturalisation or registration than about any other matter. I would not have expected that because there are other parts of the Bill about which I am personally more alarmed than the absence of a right of appeal. With permission, I shall speak at the same time to Amendments Nos. 142 and 142AA because in effect they are a package.
§ Along with the amendment which the Committee has just accepted, my proposal would mean that, instead of the Secretary of State not giving any reasons, he would have to give in writing to the applicant his reasons for exercising his discretion, except where national security was concerned. The Secretary of State could not be expected to give reasons in writing about matters connected with national security, so that aspect is excluded. But apart from matters of 702 national security, he would give reasons to the applicant, who would have the right of appeal to a suitable court; the words I would use are "a court of appropriate jurisdiction" because that would enable the Lord Chancellor to determine the level at which this type of appeal should be heard.
§ The earlier debate on the question of discrimination on grounds of race, colour or religion shows how important it is that there should be some means of review. Under this measure and the Immigration Act 1971, we are bringing naturalisation and registration together, so that many more people will be affected by this whole matter than is the case at present. Today, it is merely a question of naturalisation; Commonwealth citizens who live here for five years will be able to register, and others will be able to claim that if they have their British nationality through, say, being Irish, they also can register.
§ Until now the discretion has related only to people who are being naturalised, whereas after the passage of the Bill it will apply also to people who are seeking registration. Therefore, a much larger group will be involved. It is necessary, in fact I think it is even in the interests of the Secretary of State, that there should be some form of review, so that people who are refused know why they have been refused and can be satisfied as to the grounds of the refusal. The establishment of some form of review machinery would mean that in the final analysis not only the people who had been refused naturalisation would be satisfied, but the community as a whole would be satisfied. The community would know that the matter had been properly investigated and that no one had been unjustly treated.
§ I hope that I am correct in thinking that, as a result of the amendment that we have just passed, if the grounds relate to race, colour, religion or sex, there will be an entitlement to enforce the right. I hope that I am correct about that. But there are other grounds on which people are refused naturalisation. I referred to one of the other grounds earlier when I tried to make it incumbent on the Secretary of State to state why he thinks that a person should not be naturalised because of his particular character. In other words, I tried to put the onus of proof on the Secretary of State to show that the person was of bad character. We shall put that aside for the moment.
§ I think that the people ought to know. For example, there might be a mistake regarding the information given to the Secretary of State. Perhaps there will be a mistake on the police computer. If there is merely a blanket refusal, with no explanation and no appeal, then there is no way to remedy the mistake. Therefore, I commend this package of amendments to the Committee.
§ What I am proposing is much tighter than the proposals of the noble Viscount, Lord Colville of Culross. In fact, had those proposals been accepted, I might have hesitated about putting forward mine. But I strongly hold the view that there must be some form of review. The value of my proposal is that it is quite straightforward. It places an onus on the Secretary of State, the Governor, or the Lieutenant-Governor—whoever is exercising the power—to indicate his grounds for exercising that power. It gives the applicant the right to appeal to a court on the basis that the grounds on which his application has been refused 703 are wrong. That is a summation of what the recommendations would entail.
§ This is the right way to proceed. There would be no question about it. Anyone who applied to be registered or to be naturalised would know that, if he were refused, the grounds would be given, and if he thought that he had a right of appeal on those grounds he could go to court. That is quite straightforward, and I hope that the Committee will agree to support the amendment. I beg to move.
§ 5.34 p.m.
The Lord Bishop of Liverpool
I support the amendments of the noble Lord, Lord Pitt of Hampstead, and I should like to speak to all of them. It has been argued from the Government Front Bench that discretion in fact gives the better deal to those who apply in one way or another—that they can be handled sensitively and flexibly, whereas if there is a machinery of appeal, everything becomes rigid. I want again to make a point which the noble Viscount, Lord Colville of Culross, made; namely, that everybody knows that there is already a route of appeal. If one can find a Member of Parliament, or can get together a campaign appeals will be made to the Home Secretary. Everyone knows that that takes place. It is an erratic course of appeal.
In an earlier debate during the Committee proceedings the noble Lord, Lord Avebury, said that he had personally been involved in 320 appeals and that 56 per cent. of them had been decided in favour of the applicants. There is in fact an informal, hidden route of appeal, and what so many of us in the Committee and in the country want to press is that there should be an open and clear method of appeal. If we were to put to the communities who feel to be most under threat the argument that a better deal would be obtained by way of discretion and hidden ways, I believe that they would ask us not to go that way, and would say that there should be an open and clear method of appeal.
However, there is the other side, and in this respect I still wonder whether the Government hear what is being said. This concerns the whole matter of suspicion and fear. What is being said to us is, "Trust the Minister". It is paternalism. I do not always use the term "paternalism" in a bad sense. There have been kindly fathers. There have even been kindly fathers in God. But fathers in God, and Ministers and Governments need to understand that people do not always trust them just like that. This approach ignores the deep suspicion which is felt in regard to the Home Office. I do not believe that many Members of the Committee understand how deeply the suspicion is held. I have friends in the black community—highly responsible leaders—who have always refused to have dealings with the Community Relations Council or the Commission for Racial Equality because those bodies were under the Home Office—the department which has responsibility for prisons, the police, and immigration. It is terribly important that, if we are to have an acceptance that justice is being seen to be done, there should be established an appeal procedure independent of the Home Secretary.
A subjective element is involved when the Minister 704 has to say, "This is the kind of person", or, "This a good character". The White Paper referred to criminal activities which were not limited to those which had been before the courts, and in these anxious days through which we are passing, in which it is very clear that there is much suspicion which we would want to allay, surely it would be right to see that there is a clear route of appeal.
Lord Justice Templeman, speaking of immigration officers and other civil servants, said that without the nationality tribunal the disputed citizen is left to the Immigration Act, which confers fearsome powers on an immigration officer and prevents the effective recourse of an individual to the courts which administer justice in this country. Well, we are not talking about that exact point, but we are talking about the question of trusting civil servants and officers in instances where the reasons cannot be had out in the open.
I was very distressed when I heard the noble and learned Lord the Lord Advocate speak of resources and costs. I do not believe that it is our way in this country to cut our corners when the administration of justice is at stake, and if there is a cost involved I believe that we would all gladly pay it if it would allay fears of parents, children and families. It is not a party point that is being made. The Churches are concerned about the Bill and in particular about a proper appeals machinery. Bearing in mind our many contacts throughout the country, it seems to me that if the Bill is to go forward, it is very important that a clear appeals machinery should be part of it.
§ Baroness Birk
During our discussions on this matter in perhaps a somewhat different form earlier, it occurred to me that the people in this country and in other countries used to accept very readily what authority said, without questioning it. That is not so today. It is also a fact, I think, that many lawyers with the best motives in the world are extremely suspicious and concerned that a Secretary of State should not have to give his reasons in writing. I understand their concern. That is also something which has got built into the establishment in this particular area.
However, I think we have to look at this subject anew. We have heard from all sides of the Chamber and from the right reverend Prelate just now about the feeling of people in the country. I think we are all aware of this and I feel strongly that it is a proposal which should get support. However, I should point out to my noble friend that his amendment would also force the Secretary of State to give reasons for the granting of citizenship as well as for refusal. That is how it reads to me from the drafting of the amendment. I should have thought that giving reasons for the granting of citizenship was not only unnecessary but would cause a lot of work and may not be what was meant at all; but that does not alter the main thrust of the amendment, which deals with reasons for refusals.
In 1980, 1,119 applications for naturalisation and 204 for discretionary registration were turned down. Quite a large number of individuals are involved, and even if one took the view that one man or one woman should have the sole right to decide on these matters it would be quite impossible for him or her to be able to do so. So it must go further down the line and become an administrative, official or bureaucratic 705 decision. I think it is important that the applicant should know the reason for the refusal. Why not? I cannot see that it will put the Secretary of State in any difficult position. The noble and learned Lord the Lord Advocate, in discussing the last amendment, said that every case is different. Every applicant may be different but he should know the reasons for his refusal. First, if he wishes to re-apply at a later date he ought to know what had held him up before. This could help to cut down and not necessarily add to the work involved. Also it is highly probable that some refusals are made on the basis of incorrect information. My noble friend Lord Pitt mentioned the question of mistakes having been made. We have to accept that. It does not mean that we attribute any malevolent motive to the Home Office, but people do make mistakes in every field of life and mistakes will be made here. Somebody may suffer for the rest of his life from being refused citizenship if a mistake is made in his case.
Then there are refusals which are made on the basis of incorrect information, and there is no possibility of the person being able to put that right unless he knows the reason why he has been turned down. Some may be refused because of a case of mistaken identity; there may be people with similar names and those names have come up in the computer and there has been confusion. Thirdly, there is scope for subjective judgment by a large number of people. However objective one tries to be—and I am sure the people considering these cases will do their best—a large amount of subjectivity must come into their decisions on certain occasions. It seems to me that with this important Bill—and it is many years since we have had changes of such magnitude in our nationality law—it behoves us all to get it as right as we can so as to allay people's doubts and to make it as simple and clear as possible for individual applicants to know exactly where they stand and to have the right to know why their applications for naturalisation or registration have been turned down.
My noble friend, in a further amendment, does insert,save where the reason relates to national security".It could be argued there, though I would not take it as far as that, that people could be told that in the interest of national security they were being turned down. I do not know that many spies or people who are likely to cause damage to the country actually apply for naturalisation. I should have thought it was extremely unlikely, but I certainly would accept the proviso which I think would meet the objections of a number of Members on the Committee where the reason relates to national security. I hope this question will not be looked at from the Government Benches and by others with a shut mind or on the basis that we have never done it in a different way or because it has only been in the Secretary of State's parish, so to speak, to deal with these matters. I hope we shall look at it in the context in which this Bill ought to be looked at, as has been repeatedly said from all sides of the Chamber over many of the amendments.
Lord Home of the Hirsel
Since the noble Lord, Lord Pitt, moved all three amendments together, may I 706 raise for the attention of my noble and learned friend a point raised by the noble Baroness, Lady Birk? Where does the Home Secretary's discretion now rest, as the Bill now stands, in cases of national security? Had my noble friend Lord Colville been successful in moving his amendment I would have asked him to include some words in it which would ensure that these cases are covered. I do not think that the amendment moved by the noble and learned Lord, Lord Elwyn-Jones, affected the security question; but there ought to be something in the Bill which covers this point. I have seen too many of these cases over a good many years not to feel that they could not go to court or to an appeal court. In many of the cases it certainly would not serve the national interest if all the facts had to be exposed; so I am not quite clear about this matter of security now. Could my noble and learned friend include in his reply on the general question an answer as to whether the discretion of the Home Secretary in relation to security cases is unimpaired?
§ Lord Avebury
That last point made by the noble Lord, Lord Home, gives rise to a further consideration: that is, whether the procedures we have had for looking at persons' characters have always been successful in the past. For instance, have any of the spies who have been convicted of offences been naturalised citizens of this country? I do not remember, for example, whether Mr. Klaus Fuchs, who was referred to at an earlier point, was a naturalised citizen. But I am convinced that some spies whose cases were dealt with in the early post-war years had become citizens of this country by naturalisation. So the assumption we are making that these cumbersome procedures built into this Bill in continuation of the processes that have always been in our law are a method of safeguarding this inestimable privilege of citizenship from undesirable characters, is not correct. There are examples not a million miles from your Lordships' House which we can think of where persons who have been granted our citizenship have subsequently been convicted in a court of law. So the procedures, while they take up an enormous amount of time and effort in the Home Office, cannot be said to be 100 per cent. successful.
The noble Baroness, Lady Birk, spoke about the thousand or so cases that were rejected over the last year of persons whose applications were refused, presumably on grounds of character, not because they had necessarily been shown to be of a criminal nature but for reasons of the kind we discussed earlier on, which may be completely trivial. One can only deal with cases which come to one's own attention and which one takes up with the Home Office, and so I do not know what the experience of other noble Lords is, but the few cases that have come to my notice have satisfied me that the reasons for rejection are sometimes of an extremely trivial nature.
I do not know what "good character" means. I do not know whether there is an internal definition in the Home Office and what instructions are given to the people who carry out the interviews. This is one of our problems. This is where we get to by departing from the objective tests which were set out in the Green Paper and which anybody could see. The noble Baroness said that what we ought to aim at is 707 something which is simple and readily understandable by the applicants, and I would say by those who have to adjudicate on them as well.
If we had stuck to the recommendations that were floated in the Green Paper—the three objective criteria: that a person has not been convicted of certain kinds of criminal offence, that he is not an undischarged bankrupt and that he has not been found unfit to manage a company, with the added consideration of security that the noble Lord, Lord Home, rightly emphasises—then we should know where we were. We would not then have this enormous and cumbersome apparatus of examining every single case to see whether somebody's character fits into some pre-determined criteria which nobody will know about. I say that because it is the practice of the Home Office to issue secret instructions to officers who have to take these decisions in the name of the Secretary of State, and other noble Lords and I are not able to know what they are.
We do not know what the instructions are in the case of the Immigration Acts, so frequently we are at a loss to understand why a particular officer made the decision he did. Now there will be a parallel set of instructions. Another example I could have given was the standing orders and circular instructions which apply to the procedures which operate in prisons. We in fact have a copy in our Library here, but no member of the public is allowed to see them and no prisoner who is subject to those rules is allowed to see them, except that after the case of Silver and Ors. he can now get his Appendix 4 to the Commission's decision—a complete copy of the standing orders and circular instructions as they stood in 1977. But this is purely an accident because of the fact that somebody happened to bring proceedings before the European Commission. It would not normally be the case that anyone would have access to these secret instructions; and here we are going to be faced with a fresh set of instructions that the Home Office will issue, or they will simply continue the ones that are presently in force.
Officers will examine these to determine whether a person is fit to become our citizen, and he may reject him for a reason that never becomes known to the general public. For instance, what if somebody is "gay"? Is that a defect in his character which disqualifies him from becoming our citizen? I have not the faintest idea, and no one would ever know, if a person came for examination before an officer to see whether his character was suitable for this purpose and an immigration officer found that he was "gay", whether the instructions say that that is a disqualification and that perhaps he was being turned down on those grounds. He would never know, and the persons acting on his behalf, such as his Member of Parliament, would not be able to make representations that this was an unwarrantable exercise of the Home Secretary's discretion. So I think it is vitally important that reasons are assigned, and that the whole thing is brought out into the open. If the Minister is not prepared to go back and think about the question of objective tests, this is the only tolerable and fair alternative.
Viscount Colville of Culross
May I say to my noble 708 friend Lord Home of the Hirsel that on the question of security the amendment I moved earlier on this afternoon of course dealt with the appeal on questions of entitlement, as to which I do not think security is a relevant critieria as I read the Bill. The earlier amendment that I moved last week, which was a form of appeal system against the discretionary exercise of the Home Secretary's power, including naturalisation, specifically did not provide for reasons to be given, which would have covered matters of security; so I did have the matter in mind.
Lord Home of the Hirsel
I would not dare challenge my noble friend on the law, but I thought that if you left out subsection (2) probably something else ought to be put in dealing with security; but I may be wrong.
Viscount Colville of Culross
What we are dealing with at the moment, as I understand it, are the acts of discretion, like naturalisation and a number of others in the Bill, and it is really because of my interest in the appeal procedure that I ventured to say a few words to the noble Lord, Lord Pitt, and those who support him, because I am a little unhappy about the way in which his amendments are drafted, and it would be less than consistent of me if I did not say so.
As the noble Lord will remember, I made a very strong appeal to my noble friends on the Front Bench when I was dealing with Amendment No. 141 last week to see whether we could find some form of acceptable compromise which would provide for an appeal system which they could fit into the administrative machinery that the Home Office wants to have. At the same time I recalled that in another place my right honourable friend the Home Secretary had said that reasons would in practice be given in a very large number of cases notwithstanding the provisions in Clause 43(2), which says that he need not give them. Certainly nobody on the Front Bench denied that, and I am sure that that is the case.
The difficulty with the group of amendments that the noble Lord, Lord Pitt, has put down seems to me to be exactly the same as I was explaining on the first amendment this afternoon. If you provide for an appeal in these circumstances to the courts, or to an appropriate court, or for an appeal and a review, you are going to be in exactly the same difficulty as that which I attempted to explain to the Committee earlier on this afternoon, which is that the court is not going to look at the merits of the case. They will not go into the facts all over again, for the reasons that I gave. They will simply ask, "Is this a decision that a reasonable Secretary of State could have come to, or not?", and if it is a decision that a reasonable Secretary of State could have come to, whatever that decision may be, they will not interfere.
So, with the greatest respect to the noble Lord, I think he is placing reliance in the wrong place if he thinks that by providing for an appeal to the courts in these circumstances he has got the answer. I do not think he has. I will not go into the whole matter again, but for those reasons, and since I hope very much that we may have a further dialogue with my noble friends on the Front Bench about this matter, I would urge him perhaps to consider this in the light of what has been said earlier on this afternoon, rather 709 than press it today, because perhaps we could come back at the next stage of the Bill with something which would cover the whole of this area, and cover it in a comprehensive and satisfactory way.
§ Lord Gifford
My noble friend Lord Pitt has drawn our attention, I think really for the third time in this Committee stage, to the inadequacy of the appellate provisions of the Bill; and although the Government have said that they are going to look again at the appellate procedures so far as an entitlement is concerned, I think they have been very firm in resisting any kind of appellate review where discretion is concerned, and I am bound to say to the noble Viscount, Lord Colville, that I would much prefer even the limited review of Order No. 53 to no review at all, which is the proposal in the Bill.
I have made one speech already—I think it was many weeks ago—on Clause 5, when I urged the Committee to recognise that it was far better for these matters to be decided by some form of judicial open process than through the secret processes of the Home Office, where even Members of Parliament cannot be told the reasons why certain decisions have been taken, so that their power to make representations is very limited. I will not repeat what I said, except that I asked a question in relation to procedure in other countries, where it is not unheard of for there to be a proper appellant provision, even in discretionary cases. The United States allows for appeals to the courts when naturalisation has been refused by the appropriate federal Secretary. The United States is a country where respect for forms of challenge to administrative decisions is well developed. I asked on an earlier occasion, what is wrong with the provisions made in the United States? Or in Canada, where I believe there is reference to a tribunal? Have the Government looked at these other jurisdictions and can the Government really tell us that they do not work? If so, why do they not work? I wonder whether an answer will be forthcoming on this occasion?
§ Baroness Elles
I should like to support the principle which has been so eloquently put by the noble Lord, Lord Pitt of Hampstead, and at the same time to support the reasons which were given by my noble friend Lord Colville for not being able to accept the amendment in the form in which it has been drafted. In a democracy, surely no form of public measure should be without some form of public control, so that an individual can know why he has been treated one way or another? It is for this reason that I support some form of judicial review as outlined by my noble friend Lord Colville.
I believe it is also true to say that your Lordships' House alone (a legislative body having the most balanced membership that one can find in the country) has made passionate pleas for certain black citizens—rightly; passionate pleas for white citizens who do not live in this country—rightly; and other passionate pleas and remarks on entirely emotional grounds concerning certain sections of the world community. In this House alone we have over the past few weeks shown an amazing amount of prejudice one way or the other. I do not imply anything derogatory in my use of the word "prejudice", but if we in this House can show 710 our prejudices and feelings can we really expect officials in the Home Office not to do the same? It is for these reasons that I support the principles put by the noble Lord, Lord Pitt of Hampstead, and also the remarks made by my noble friend Lord Colville.
§ Baroness Hornsby-Smith
There is another side to this case. I was privileged to serve in the Home Office and had responsibilities in the immigration department for three years. I was aware of certain cases being turned down for naturalisation. In the case of somebody who comes to this country, possibly on a work permit applied for by a company of standing because the person concerned has special skills, no profound investigation is made into his past. That person may obtain his work permit and then stay in this country for many years. However, when he then applies for naturalisation, after a considerable term of years, a much wider investigation is made. I have known cases where the individual's alleged country of birth was entirely false. I have known cases where the individual had a substantial criminal record. Do we really want to expose all this and make the man worse off than when he started? I have known of a treble bigamist—at least, a double bigamist because one of the marriages was right and two were wrong. Would we have to tell his other poor wives? Many people are turned down for far more serious reasons than many noble Lords have given us credit for, and probably their announcement would mean that the person concerned would no longer be able to stay in this country at all.
§ 6.5 p.m.
§ Lord Belstead
I listened to my noble friend Lord Colville and it may or may not be that the noble Lord, Lord Pitt of Hampstead, will feel that as a result of my noble friend's speech it would be right to ask for the decision of the Committee this evening on these particular amendments. None the less I believe your Lordships would expect me to answer the main thrust of the amendment which the noble Lord has moved, namely, Amendment No. 141 A, which is that reasons should be given to the applicant in writing so far as decisions on discretionary cases is concerned—and, of course, your Lordships have confined their remarks to naturalisation cases. When taken with Amendment No. 142A, the effect of the amendment now before the Committee would be that national security cases would be excepted from the effect of the amendment.
My noble friend Lord Colville very fairly referred to the practice which he knew from the time he worked in the Home Office, of trying to give reasons wherever possible. It is a fact that over the years reasons for decisions on applications for citizenship have been given wherever possible—particularly in cases where it is felt that if a reason is given the applicant will be able to overcome the difficulty. Indeed, my right honourable friend the Secretary of State said in another place at Report stage that we are particularly concerned that, where it is possible for the applicant to put the matter right, he or she should know why the application has been refused so that the applicant may have the opportunity to take action before applying again. We are constantly reviewing the matter and considering whether more can be done in order to help applicants in this respect. After the Bill comes 711 into force we fully intend—and I give this assurance—to continue what I believe the Committee would feel to be a positive approach to the question of giving reasons.
The Committee may ask, why not accept the amendment? What is wrong with the amendment? There are cases where the giving of reasons is not so easy and where matters are not so clear cut; where refusal is for a combination of factors. For instance, an applicant may have criminal associations which have not as yet led to charges and convictions but may well do so. There may be another instance where an individual's financial reputation and dealings may be dubious, to say the least; yet the matter has not yet been before the courts. In such cases giving reasons would be very difficult indeed. There would be endless wrangles which could not be satisfactorily resolved. Indeed, the work of those who would be responsible for following up the supposed improprieties—the police or other authorities—could be hampered, since the individual would immediately be put on notice that he had been spotted and was the subject of inquiry. I say these things seriously, and I believe they must be looked at seriously.
The noble Lord, Lord Pitt of Hampstead, also spoke to Amendments Nos. 142B and 142C. These two amendments go a little further. They would have the effect of enabling applicants refused citizenship by grant to appeal to an appropriate court against the refusal or to seek a review of the refusal in a court. Once again, despite the remarks made by my noble friend Lord Colville, I must reply on the principle of the matter.
Naturalisation in this country—as in many others—has always been within the gift of the state. It used to be a matter within the grant of the Sovereign, and then the powers to naturalise were exercised by Parliament. Since it has long ceased to be practical for naturalisation to be granted by Act of Parliament except in very rare cases, the discretionary power has now come down to my right honourable friend the Home Secretary. This power has been vested in the Home Secretary by Parliament since 1844. In reply to my noble friend Lord Home of the Hirsel, this general discretion covers, and would continue to cover if the Bill is left unamended, security cases.
There are inherent difficulties, here again, in reconciling a system of appeals (which would be the effect of those two last amendments to which the noble Lord is speaking) with the requirement for naturalisation: notably, naturalisation if you take good character into account. I realise from his speech that the noble Lord, Lord Avebury, would not wish to take it into account. There it is; we must agree to differ.
The discussion paper of the previous Government, to which I have referred before, said this:It is questionable whether it would be apt to have an appeals system if good character assessed in each case by analysing all the factors involved were to remain the criterion for citizenship".The reason I quote that is that it was a passage from the Green Paper which again was based on some pretty hard practicalities: where for instance an applicant has serious criminal convictions and is considered to be generally unsuitable. In such cases, I wonder whether the personal referees would be very keen on having 712 what they had put in in confidence about somebody then distributed for all and sundry to know.
More importantly, the police would be reluctant to have information divulged to them in confidence set out in their reports so that everybody knew what it was that they had said about an applicant. The police would feel themselves restricted in the information that they could include in their reports. My noble friend Lady Hornsby-Smith—again with her experience of the Home Office in previous years—was absolutely right to say that in addition she really wondered whether it was in the interests of the applicant himself or herself.
I know that the right reverend Prelate the Bishop of Liverpool said that it is wrong to look at the matter on resource grounds, but I am sure that he would understand, even though he may not agree with me, when I say that I am adding this as an extra argument on what I hope are the arguments that I have put already. There is the problem of resources. The courts have already heavy burdens and it could add to delays on matters which frankly are very pressing indeed in the courts in this country today. The machinery of justice is under enough strain without thrusting further burdens upon it. Yet the only feasible alternative—the immigration appeals machinery—is equally stretched and it is extremely unlikely that additional resources could be found to meet the costs of an appeal system on citizenship as part of that machinery.
I know perfectly well that this Committee thoroughly dislikes the argument of administrative convenience. Therefore I return to where I began, which is how things stand under the machinery as it exists at the moment. May I give as good a reply as I can to the question which the noble Lord, Lord Gifford, asked and say that there are many other countries in which the good character requirement is undefined and the grant of naturalisation is at discretion. Certainly I know of Australia, Belgium, Greece, India, Italy, the Netherlands and New Zealand. Although the noble Lord spoke of the United States, the naturalisation law there indicates that certain categories will not be regarded as of good character.
In the same way as the Government in this Bill are not attempting to change the law so far as discretion on naturalisation is concerned, we are not departing from the general discretion which is to be found in many other countries. Canada has a different system. I am saying that some countries have one and some another. It is reasonable for me to draw attention to the fact that we are not unusual or different in this respect, and it is reasonable, if I may say so, to say that the system in this country works.
In very many cases the truth of the matter is that the remedy for someone who is refused a naturalisation application lies with the applicant himself or herself. What happens is that the reasons are given and the applicant then re-applies. What would happen under the amendment is that we should find that there would be appeals which might not be necessary. We must not lose sight of the fact that it would mean more burdens placed upon the courts. I ask the Committee to look at the real problems as well as the advantages. This is a matter of balance. I would not come before the Committee and suggest it was not. I ask the 713 Committee to look at the problems as well as the supposed advantages of the amendment which the noble Lord, Lord Pitt, has put forward. I therefore ask the noble Lord, Lord Pitt, to think again before he asks that the matter should go to a Division.
§ Lord Pitt of Hampstead
I have been thinking long and hard. I was listening in the hope that the Minister would give me an assurance. I pointed to the number of letters I have received. It shows that many people are worried that naturalisation and registration is subject to the discretion of the Secretary of State and there is no appeal. They feel there should be some machinery which would enable them to appeal against the decisions. I was hoping the Minister would say that at least they were going to contemplate some form of appeal machinery. The Minister answered me without at any stage saying that. I regard that as of the utmost importance. We need to reassure the people who are worried. One of the ways we can do that is by saying that there is some form of review machinery which would enable anyone who is refused naturalisation or registration to have his case reviewed.
I took the point made by my noble friend Lady Birk. I circulated a manuscript amendment, which the Table refused to accept and which I would have moved on Report stage. It was never my intention, frankly, that there should be a reason given in writing for the granting of naturalisation. It was always my intention that there should be reasons given when naturalisation was refused. As the noble Lord, Lord Gifford, pointed out, there is appeals machinery in the United States, Canada and Sweden. I cannot understand why the Government feel so strongly that there should not be an appeals machinery in this country. The point made by the noble Baroness does not hold water. If a man has such a bad character that he receives a reply from the Secretary of State saying, "We will not naturalise you because of X, Y and Z", he is not going to appeal; he is not going to allow anybody to know about it. The only people who will know about it are those in the Home Office and perhaps legal advisers. Therefore the problem would not arise.
The people who will appeal are the people who feel aggrieved when they receive a reply saying that their application for naturalisation or registration is refused because of X, Y and Z. If they think that X, Y and Z are wrong, they are going to appeal. If the grounds—and I take the Minister's point—can be remedied, they can apply again and they will not appeal. The people who will appeal are the people who feel aggrieved.
This Bill has caused so much controversy. There are so many people who are concerned about it and the degree of controversy to my way of thinking is exaggerated. That does not alter the fact that there are many people in this country who are in fact very concerned about the Bill. It is the duty, as I see it, of this House, to try to assuage some of these fears and do some reassuring. I am sorry that the Minister does not feel he can join me in doing this. I must say that unless the Minister can now assure me that the Government are going to contemplate some form of review by report stage I must take this amendment to a Division.
§ The Deputy Chairman of Committees (Lord Nugent of Guildford)
Tellers for the Contents not having been appointed, a Division therefore cannot take place and in accordance with Standing Order No. 52, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless it has a majority in favour of such an amendment, I declare the amendment disagreed to.
§ [Amendment Nos, 142 and 142A not moved.]
§ 6.25 p.m.
Lord Mishcon had given notice of his intention to move Amendment No. 142AA:
Page 38, line 11, leave out from ("discretion") to end of line 14.
§ The noble Lord said: I wonder whether I may have the agreement of the Committee to speak very briefly both on Amendment Nos. 142AA and 142D.
§ Lord Mishcon
I am sorry; I was speaking to Amendments 142AA and 142D because I understood that 142AA had been called.
§ Lord Mishcon
I find myself in order, which is an unusual situation for me. As your Lordships will appreciate, both these amendments deal with the question of appeal. I am hoping, as I believe many people on all sides of your Lordships' Committee are hoping, that the general question of appeal, both on entitlement cases and discretionary cases, will have the consideration of the Government, whatever the procedure for appeals. It would be much more convenient and I believe that was in the mind of my noble friend Lord Pitt when he decided not to force the Division: that having heard an expression very definitely of the view of the Committee, certainly in many quarters, the Government would consider the whole question of appeals, be it on discretionary cases or entitlement cases, and would be courteous enough to inform those of us who have participated in a major way before the Report stage as to what their conclusions are. Then it would be open to us either to voice gratitude to the Government or to express our views in another way by putting appropriate amendments down at the report stage. In that hope, in the same way as my noble friend decided, I do not propose to move these amendments or to weary the Committee with any further speeches on the question of appeal.
§ [Amendment No. 142AA not moved.]
§ [Amendments Nos. 142B, 142C and 142D not moved.]
§ Clause 43, as amended, agreed to.
§ Clauses 44 to 48 agreed to.
§ Clause 49 [Interpretation]:
§ [Amendment No. 142E not moved.]
Lord Aylestone moved Amendment No. 143.
Page 42, line 29, leave out ("and").
§ The noble Lord said: In the temporary absence of my noble friend Lady Vickers, may I move this 715 amendment on her behalf? The amendment deals with the Falkland Islands, in a not dissimilar way from the position we had last week in respect of Gibraltar. It is a smaller problem in the sense that the Falkland Islands have a population of fewer than 2,000, whereas of course Gibraltar has a population of about 30,000. The Falkland Islands are probably 8,000 miles away from us with, as I have said, 2,000 people, all of whom are British—probably more British than we are—all of whom speak English, using our type of coinage and regarding themselves as a part of this country.
The problem about the Falklands is their relationship with, and nearness to, Argentina. But it is my view—and I hope it is the view of noble Lords on both sides—that this amendment will in no way affect, exacerbate or improve the political situation that has arisen between Argentina and ourselves. The Falklands are too small for independence or they would not be in this group. In expressing the hope that the Government will accept this amendment, I ask them to consider these people who are living a long way away, under some kind of constant threat—I would not put it any higher than that—who will, at no time, have any desire to uproot and move to this country for permanent residence.
I accept that if the amendment is carried they will have the right of abode here, but the Immigration Acts cover any form of immigration. However, it is unlikely that there will ever be any movement from the Falkland Islands for residence in this country. So I hope that the Committee will give this amendment the same kind of consideration that it gave to the position of Gibraltar. It will not harm our relationship with Argentina, but it will help to reassure those very few British people, who are so many miles away, that we have not forgotten them and they will be able to regard themselves, as they want to regard themselves, as first-class British citizens. I beg to move.
I should like to thank the noble Lord, Lord Aylestone, for moving this amendment. I just slipped out for one moment and I did not know that other amendments were not going to be moved. Noble Lords will see that this amendment has all-party backing. The only difficulty is that, so late at night, we may not have so many people here to support it as we should wish.
I should like to draw the attention of the Committee to what was said by my noble friend Lord Soames, when he intervened in the debate the other day on Gibraltar. He said at col. 265:but I hope that she"—that is, myself—will not forget that the whole purpose of the Bill is to alter British citizenship to those who are specifically and intimately connected with the United Kingdom, and only with the United Kingdom".—[Official Report, 22/7/81.]I should have thought that that proved the whole point, because who can be more connected than they are, by descent? I hope that this will be taken into consideration.
I understand that, according to the 1981 census, there are 1,710 people living in the Falkland Islands; that is to say, 94 per cent. of the total are British. 716 These islands are unique because, when the British went there in 1833, there was no indigenous population; in fact, there was nobody at all living on the islands. Therefore, I suggest that these people are our own kith and kin, our own people. Some families have been there for six generations and one for eight generations. All are, by birth, British and they have never had any language other than English. They are as British as anybody living on the Isle of Wight. Some even have crofts in Scotland and, when their sons take over their sheep farms in the Falklands, they retire to Scotland. They live on their pensions and do not cost this country any money at all. One of them has a croft on Uist.
There are other people on the islands who never wish to become British and never could be. There are 24 Americans, of what is known as the Birhi sect, who settled there in 1948; there are four Australians, four Canadians and five New Zealanders, who will naturally wish to retain their own nationality. There are also 30 Argentinians who go there to deal with the airways, but stay only a short time and then return to their own country. In addition, there are 27 Chileans who go to work on the roads and they, too, go back to their own country.
As was said by the noble Lord just now, there is no question of these islands becoming independent, but all the inhabitants are of British origin and have no other mother country. They are all descendents of English, Welsh, Scots and Irish people. I understand—the Minister will correct me, if I am wrong—that the original service pensioner settlers were promised the right to retain full British citizenship. Therefore, I hope that they will be given the full rights of British citizenship, with the right of entry and abode in their own country, which I suggest is the United Kingdom.
For example, I should like to suggest that the islanders should have the same rights as people living in the Channel Islands and the Isle of Man; though, in the last fortnight, there has been a change in the case of the Isle of Man, because it has decided to take another status and become a Crown Colony of Her Majesty the Queen, and not to be under the Home Office. So I suggest that since we put down this amendment there has been a slight change. Anyhow, the Falkland Islands could be classified in the same way as the Channel Islands.
In an undated letter from the Minister, Mr. Timothy Raison, it was stated:The law on nationality must be related to such matters as an individual's place of birth and parentage".I suggest that, on that basis, the Falkland Islanders qualify. Also in this letter it is stated that, in the event of an emergency, sympathetic consideration would be given to the position of the Falkland Islanders. I am just wondering why they need sympathetic consideration. Is it because of some doubt about their origins, in view of the fact that in 1836 all their records on the islands were burnt and that, by mistake, the copies were also burned in England? As they do not have adequate records, that may be why they need sympathetic consideration.
I hope noble Lords will not think that I am trying to cash in on the decision made about Gibraltar, because I think that this amendment should be judged on its merits. This amendment is concerned with only 300 to 400 adults and their children. I should like to 717 assure noble Lords that the immigration laws on the Falklands are even stronger than they are here. In fact, when I suggested not long ago that, as they were short of population, they might take some Vietnamese people they were very shocked indeed, and certainly did not accept my suggestion at all. As I said, a fortnight ago the Isle of Man voted to separate itself from the British Isles and to become a fully self-governing country and one of Her Majesty's Crown Colonies.
The Channel Islands are not part of the United Kingdom, but they are so defined in the Bill because they are Crown possessions and inhabited by British people, as are the Falkland Islands. The latter are, regrettably, often forgotten by the British people. I wonder how many British people know where the Falklands are, as so little interest is taken in them. People do not know about the Falklands because, being 7,000 miles away, they are not near enough—like the Channel Islands or the Isle of Wight—to take their holidays there. So I hope that, before making a decision, your Lordships will consider that those 300 to 400 people form a loyal part of the Commonwealth.
Finally, we must remember the service they gave in the wars, especially in the 1939–45 war. When HMS "Achilles", "Ajax", and "Exeter" were stationed there before the Battle of the River Plate, they were very well looked after. After their famous victory, which noble Lords will remember, they returned to Port Stanley in the Falklands. HMS "Exeter"—a Devonport ship that I knew well—limped back and was very well looked after. There were a great number killed in that action, but the others were well looked after. There were 49 wounded, four of whom died in the Falklands. I think that this River Plate action gave us the first incentive, the first hope that we might win the war, and we owe a great deal to the Falkland Islands. I suggest that if we do not eventually, or even tonight, accept this amendment we are abandoning our own folk and I hope that noble Lords will consider this when the Minister comes to reply.
§ Lord Avebury
As has been pointed out, this amendment does have all-party support, and my noble friend Viscount Thurso would, I am sure, want me to say just one word or two in support of the noble Lord, Lord Aylestone, and the noble Baroness, Lady Vickers. Although I would agree with her that the amendment stands on its own merits, none the less an argument which the Government might have used if it had not been for the vote on Gibraltar is now no longer available to them because the principle has been conceded that it is possible for one of the dependencies to have the same citizenship as the United Kingdom itself. I think that is an extremely important factor, apart from the great merits of the principle of self-determination which is the really important aspect of this amendment. As the noble Baroness has said, there are 1,700-odd people in these islands who unanimously wish to remain British. After all, if we accept that the people of Northern Ireland can have a plebiscite and can declare that they will remain part of the United Kingdom and they do not wish to be transferred to the Republic of Ireland, what is the 718 difference between that and the people of the Falkland Islands making a similar declaration—except for distance? One hundred per cent. of the people of the Falkland Islands wish to remain British, whereas in Northern Ireland it is only something like 60 per cent. I think that if we are going to abide by the principle of self-determination we have to pay careful regard to the wishes that the people there have expressed.
The other point which I wish to make briefly relates to the remark of the noble Lord, Lord Aylestone, that he does not believe that if we pass this amendment it will damage the relationships between our country and Argentine. I am not interested in appeasing the dictators of Argentina. I think it is our duty to make sure that the people who live in those islands are given the support of British citizenship so that they will know that it is not the intention of Her Majesty's Government to hand them over against their will to a particularly repugnant military régime which massacres many of its own citizens. I think they may well have legitimate fears of what would happen if Argentina took over in the islands and established the sort of terror there which in the last five years of the régime, first of General Videla, and now of General Viola, we have seen operating on the mainland. I very much hope that this will receive all-party support and that we shall support the people of those islands who have been so loyal to this country over 150 years.
§ 6.43 p.m.
§ Viscount Massereene and Ferrard
I should like to support this amendment very strongly. I have had two Falkland Island shepherds in my time, and I could never have had better shepherds. I know that that is no reason for supporting the amendment, I can, however, understand the Government's point of view. Of course, it is far more tidy to have all dependencies treated in exactly the same way, but it is actually very difficult to be tidy when you are dealing with human beings. Of course, now that we have had the vote on Gibraltar the tidiness has been rather ruffled, so I hope my noble friends on the Government Front Bench will make an exception regarding the Falkland Islands. After all, as my noble friend Lady Vickers said, it is only going to affect three or four hundred people, which is really a storm in a teacup. I think the Government ought to accept this amendment.
I would go further and say that under this Bill the Channel Islands are going to be part of the United Kingdom because they are a Crown possession. So are the Falkland Islands a Crown possession. The Channel Islands, after all, have quite a lot of people of French descent in them—not that I object to that—but the Falkland Islanders are of pure Scottish descent. There is an old saying that blood is thicker than water, but this Bill does not support that, because, under this Bill, Britons by descent do take an inferior position to Britons who are naturalised or registered, which I think is a pity.
I should like to finish by drawing your Lordships' attention to what Lenin said. I have always made a study of Karl Marx and Lenin and all their writings, and Lenin wrote in 1921,The only resistance to our world domination by Communism will come from the Anglo-Saxon race".719 Of course by "Anglo-Saxon race" he was including the Celts. What he meant was the Anglo-Saxon race throughout the world. He then went on to say,Therefore, the race must be driven back to their own country and then destroyed".He does not say how we would be destroyed. There are many ways of destroying a race, but we will not go into that. I would just add a further plea to the Government to accept this amendment, and if they do not accept it I would ask that they take it back and consider it, and I sincerely hope that they will accept it at the Report stage or at Third Reading.
§ Lord Mishcon
I am able to make a more objective speech than the noble Viscount who has just spoken. I cannot think, if I may say so to your Lordships, of a speech more opportune before tomorrow's happy event, because I am quite sure that the noble Viscount will be able to go home tonight knowing that his recorded speech in Hansard will do much to unite the British Commonwealth of nations in a way they did not anticipate being united before his speech was made.
So far as my noble friends and I are concerned, we generally support this resolution It is our view that loyal people everywhere, whatever be their colour and whatever be their ancestry, who want to be part of our family should, indeed, be part of our family. So far as the Opposition is concerned, we only wish that there were not categories of citizens in this Bill and that there was one category alone. Having said that, I think I have said everything that I want to say at the moment on behalf of the Opposition.
§ Lord Beloff
I think it is necessary, before we decide how we deal with this amendment, to be quite certain of the international context in which we are proposing to act, because the demand of Argentina for sovereignty over the Falkland Islands is not, as the noble Lord, Lord Avebury, suggested, an affair of recent and, no doubt, deplorable military dictators; it goes back for a very long time indeed. When I visited Argentina on a lecture tour for the British Council 17 years ago I was asked to call on our embassy in order to be briefed on the position we took with regard to the Falkland Islands because I was rightly told that whatever the subject I might be giving in my lectures somebody was going to ask about the Falkland Islands.
§ Lord Avebury
I did not mean to imply that the claim over the Malvinas, as they call it, was of recent origin, merely that the people of the Falkland Islands might have heightened anxieties about the consequences of an Argentinian takeover because of the nature of the régime which rules that country at the moment.
§ Lord Beloff
I am quite in accord that their anxieties are greater than ever, but their wish has always been, for the reasons which the noble Baroness gave, to remain part of the British family and not to be transferred. The question which is before us is, how can we best reassure them of our intentions to make that wish effective without giving a new impetus to the Argentinian campaign, which no doubt will in any event be prosecuted. It is a question of what this conferment of 720 British nationality on the inhabitants of the islands would mean.
It could be argued, as the noble Lord, Lord Aylestone, said, that since this in fact entitles them freely to come and reside in this country they might be alarmed at the thought that we propose precisely to hand over the islands at some future point and that we are merely offering them asylum in this country, supposing we were to take this view. So one is not absolutely certain—and I should like to be reassured—that the Falkland Islanders would really wish for this, rather than for some other form of association with this country. Merely to take it on the Britishness, the desires of the islanders, though important, is wrong unless we realise that this is a matter which will be followed up by Argentinian governments of any complexion.
§ Lord Jenkins of Putney
To underline the widespread support for this amendment, I should like to say a word from these Benches in favour of it. Various reasons have been given in different parts of the Committee for supporting the amendment and I wish to go along with all of them. The argument which has been put forward that if what has been decided in relation to Gibraltar is correct then it is difficult to resist the propriety of this amendment, seems to me to be extremely persuasive. Apart from the question distance, the arguments which persuaded the Committee in relation to Gibraltar are even stronger in relation to the Falkland Islands.
In particular, so far as Gibraltar is concerned, if the worst came to the worst and the Gibraltarians were to disappear into the hands of their near neighbour they would disappear into a state which at the moment, though possibly precariously, is a democracy, a constitutional Monarchy. If, however, the Falkland Islands were to disappear into the hands of the Argentinians, they would, as the noble Lord, Lord Avebury, has pointed out, be falling into the hands of a military dictatorship, one which practices torture as an instrument of state and of repression, as has been made abundantly clear in the press just recently. For all these reasons, it is my hope that when he comes to reply the noble Lord will say that he feels able to accept the amendment. If he does not feel able to do so, it is my wish that the noble Baroness will press the matter. If she does, I shall be happy to follow her into the Division Lobby.
§ Lord Geddes
The precedents just instanced by the noble Lord, Lord Jenkins of Putney, apply, I suggest to your Lordships' Committee, with equal force and equal truth to any other dependent territories. I make no apology for rising yet again in your Lordships' Committee (this is perhaps the fourth or the fifth time) to instance the case of Hong Kong. There is absolutely no argument that I have heard this evening in your Lordships' Committee or that I heard on the Gibraltar amendment that is in any way unique to the Falkland Islands or to Gibraltar. I must declare to your Lordships that I have enormous sympathy for the motive behind this amendment, as I had for the motive behind the Gibraltar amendment. However, as those noble Lords who study these matters will have noted, I did not vote in favour of the Gibraltar amendment 721 because of the enormous floodgate of precedent which that would open apropos the other dependent territories. If this amendment is carried, that argument will need to be stood on its head. If two amendments rather than just one on Gibraltar are agreed to, I must certainly consider very seriously tabling an amendment at Report stage which would encompass, of the other dependent territories—I am trying to pick my words carefully—the position of Hong Kong.
I said in your Lordships' House during the Second Reading of this Bill, and I think it right to repeat it for the record, that I am aware that if there are further movements to single out dependent territories—I instanced Gibraltar but the same argument could apply equally to the Falkland Islands—there will be great bitterness and resentment in Hong Kong. Rightly or wrongly, it will be said that the principles of the Bill which provide the three clearly defined types of citizenship can be set aside by some Members of your Lordships' House and of another place, simply because the numbers of people concerned in the territories involved are very small in immigration terms. I suggest that the argument of numbers—my noble friend Lady Vickers has instanced this and I have a great deal of sympathy with it—is immensely persuasive. However, it is a non sequiturial argument. It has absolutely no basis vis-à-vis the other dependent territories.
Arguments have been used—again I suggest entirely correctly by the noble Baroness—as to the military support given by the Falkland Islands. The same argument was raised about Gibraltar. I say strongly that the same argument is equally valid to Hong Kong, which put up tremendous resistance during the last war, with enormous casualties. The right reverend Prelate, the Bishop of Rochester instanced the concern of the churches in Gibraltar during the debate the other day in your Lordships' Committee. I am quite certain that the same argument can be used about Hong Kong. I will not detain your Lordships' Committee any longer, but would re-emphasise that if precedents are set with respect to any of the dependent territories, I can find no persuasive reason why those same arguments should not apply to all the dependent territories.
§ Viscount Massereene and Ferrard
The noble Lord is not being practical. He is speaking like a lawyer. You cannot compare allowing in 300 or 400 Falkland Islanders to allowing in 3 million Chinese. Do be practical.
§ Lord Geddes
May refute that? Again this is a non sequiturial comment from my noble friend. First, I am not of the legal profession.
§ Lord Geddes
Secondly, of the 2.6 million rather than 3 million holders of Hong Kong British passports who would be eligible under this Bill, barely a handful—I have already said this, the noble Lord, Lord Mishcon, has said it in the past and many other members of your Lordships' Committee have said it—have the right of abode in the United Kingdom. All the others are restricted by way of the 1964 and 1968 Commonwealth Immigration Acts and the Immigration 722 Act 1971. I repeat that the advice which I have been given is that none of those are looking for, expect to have, or have any inclination for the right of abode in the United Kingdom.
§ The Earl of Lauderdale
There is some danger in saying that what we do on Gibraltar has got to be done elsewhere. A substantial part of the argument about Gibraltar related to that colony's position within the EEC. May I ask those who put down this amendment whether they can say, apart from broad generalisations, that everybody in the Falklands wants this: whether it is in fact the case that the Falkland Islands' representatives or Government have said that they want this particular form of association? Whereas we had much information from Gibraltar which was precise and which pointed in one direction only, I for one—I normally get the Falkland Islands' material—have not seen anything which shows that they particularly want this specific form of association. Possibly those who are moving the amendment can answer that point. The third point about Hong Kong is, I believe, quite misleading. Hong Kong is a leased territory and is different in kind from any of the others.
§ Viscount Montgomery of Alamein
I intervene briefly to follow up the words of my noble friend Lord Beloff because I think he made a very important point. My noble friend Lady Vickers argued her case very cogently, but it is important that at this delicate stage of the negotiations with Argentina is is no good your Lordships supposing that the Argentine claim will go away; for better or for worse there it is and it has a wide measure of international support. It is important that we should not do anything in this House which would in any way exacerbate the situation or in any way impede a solution which might be more beneficial to the islanders in other circumstances.
§ Lord Geddes
If I may be allowed one moment to intervene, the noble Earl, Lord Lauderdale, referred to Hong Kong as leased territory: I think it should be put on record that, while the majority of the landmass of the Crown Colony of Hong Kong is leased, the minority geographically is ceded to the United Kingdom, and certainly the vast majority of the population live in that ceded territory.
§ Lord Monson
May I point out to the noble Earl, Lord Lauderdale, that on 14th July the Falkland Islands Office wrote to certain noble Lords, asking the House to accept these two amendments.
§ Lord Trefgarne
Considering the very deep affection which we all have for the people of the Falkland Islands it is hardly surprising that the question of where they should come in the scheme of citizenship provided for in this Bill has aroused strong emotion. If I may say so, that is as much a tribute to the Falkland Islands as to those who have spoken so eloquently in this short debate this evening. I should like to associate myself with the tribute paid by my noble friend Lady Vickers to the gallantry and loyalty of the Falkland Islands during the last war and earlier.
However, we must be careful, in our desire to declare and reinforce the affection in which we hold the islanders 723 and their home, not to turn the facts on their head, because I must remind your Lordships that however strong the affection the fact remains that the Falklands are not and never have been a part of the United Kingdom. The Government have explained on a number of occasions during the proceedings on this Bill that citizenship of the British dependent territories is designed to provide a citizenship precisely tailored to the needs of our friends in the dependent territories while at the same time replacing the outdated and anomalous arrangements which now exist. The new British citizenship is likewise tailored to the needs of the inhabitants of the United Kingdom. In essence, therefore, this Bill is intended to create a distinctive citizenship for those who belong to the dependent territories and have close personal ties with them and another distinctive citizenship for those who belong to this country and have close personal ties here.
Of course, we accept that there will be the closest of links between the peoples of the United Kingdom and the peoples of the dependencies. These links are valued and cherished. This Bill does not alter our obligations and our commitments to them in any way. But we have to accept that we can no longer go on with the fiction of a common citizenship of the United Kingdom and Colonies. We need citizenships which properly reflect the basis on which they are held and we cannot shirk this task any longer.
If we accept that conclusion we really must be consistent. We cannot resort to subterfuges and exceptions which would muddy our intentions and breed confusion and uncertainly for our successors. We must do what we set out to do, and we ought not to be deflected by the inevitable but not insuperable difficulties of the tasks which we have set ourselves. It may be helpful if I compare this amendment with the amendment which your Lordships agreed to on 22nd July, which would have the effect of enabling people connected with Gibraltar to acquire British citizenship upon application. Your Lordships will remember that that amendment was agreed to against the advice of the Government. That amendment, against which the Government argued, related to British dependent territories to which Article 227(4) of the Treaty of Rome applies, and the case for it was based upon Gibraltar's inclusion in the European Community being the decisive factor. As was made clear in that debate, no other dependent territory except Gibraltar would be covered by that amendment. It was argued that Gibraltar was thus a special case; now it is being argued that the Falkland Islands are another special case. Nearly all the dependencies believe that they have a special case to make for exceptional treatment in this Bill and they have represented their views to us. But if we are to have a distinctive citizenship for the United Kingdom, then we must have another citizenship for the dependencies, not an inferior or second-class citizenship but a parallel citizenship, and having created that citizenship all the people of the dependencies should be entitled to it. It would be invidious and discriminatory to make exceptions, expecially if these were on grounds of race, as has been alleged.
Of course the amendment last week did not confer British citizenship automatically on the people of Gibraltar. It would simply enable them to acquire 724 British citizenship on application. On the commencement of the Act, however, they would become citizens of the British dependent territories. By contrast, this amendment would confer British citizenship directly on the people of the Falkland Islands. We assume that it is intended that they would therefore not become citizens of the British dependent territories on commencement, but, unlike all other people in the dependent territories, including Gibraltar, they would become British citizens automatically The effect therefore would differ significantly from that proposed in the amendment agreed by your Lordships on 22nd July.
We are very conscious of the concern about this Bill which has been expressed in the Falkland Islands, but an essential element of the new scheme of citizenship is, as I have said, that there should be a distinctive citizenship for the United Kingdom and another for the dependent territories. It would be a major breach of this principle and quite unacceptable to and discriminatory against the peoples of the other dependencies if the people of the Falkland Islands were to be granted British citizenship by virtue of their links with the Falkland Islands. I think the remarks of my noble friend Lord Geddes underlined that point.
We should be in no doubt that this would be the effect of the amendment. The inclusion of the Falkland Islands in the definition of "the islands" for the purposes of the Bill is to say that a connection with the Falkland Islands, without any connection with the United Kingdom, would confer the automatic right to British citizenship. The majority of the islanders will in fact acquire British citizenship on commencement because of their descent from a father or grandfather born in the United Kingdom, but that is quite a different thing from acquiring it from a connection with the Falkland Islands.
Our appreciation of the anxieties of the inhabitants of the Falkland Islands has been made clear on various occasions, most recently in the debate in your Lordships' House on 30th June. On that occasion I said, the Falkland Islandershave been given assurances by the Government, most recently by my right honourable friend the Home Secretary in another place on 28th January, that the islanders could depend upon the most sympathetic consideration of their position in the event of an emergency".—[Official Report, 30/6/81; col. 184].We believe, however, that the right way to meet these anxieties is to meet particular concerns in suitably effective ways, not to create further citizenship anomalies. Therefore, we have made it quite clear to the islanders that nothing in this Bill affects the relationship between the United Kingdom and the Falkland Islands, nor does it affect in any way the Government's obligations to the Falkland Islands and its citizens.
As for entry to this country, most of the islanders have the right of abode in the United Kingdom at present and the Bill will preserve this. Those who do not have the right of abode have been assured by my honourable friend the Minister of State, Mr. Ridley, that in the event of an emergency the problems of any islander who did not possess the right of abode in the United Kingdom and who was in trouble at that time would be most carefully and sympathetically considered. In another place on 28th January my right honourable friend the Home Secretary reaffirmed this pledge and assured the islanders that in such circumstances they 725 could depend upon the most sympathetic consideration of their position, as I have said. I reaffirm those pledges tonight, which in our view recognise the historic position of the Falkland Islands.
May I now deal with one point which was raised during the course of the discussion this evening by my noble friend Lady Vickers about the position of the British people who went to the Falkland Islands originally 130 or 140 years ago. It is true that a detachment of 30 Chelsea Pensioners, I understand, were sent to the Falkland Islands in 1849. In 1857 seven accepted an offer to return at Government expense to the United Kingdom. By this time, of the 30 men seven had died, 11 had already left the Falkland Islands, and five chose to remain. But the conditions on which the pensioners were enrolled for service in the islands dealt with pay, housing, duties, et cetera, and no mention was made of nationality.
This is not surprising because at that time every colonist leaving these shores carried with him the words of the late Lord Grey, who was the then Colonial Secretary—I am quoting from what I imagine were the words on whatever passed for a passport in those days:that protection which the character of a British subject everywhere confers".In this the Falkland Islands were, of course, no different from places such as Canada, Australia, and New Zealand. But the point I want to make is that the question of nationality was not touched upon then in the way which some people have suggested ought to weigh with us today.
We are very conscious of the problems that the people of the Falkland Islands face, and we are concerned to help them with these, but we do not believe the grant of British citizenship to them, with all the anomalies that would cause elsewhere in the dependencies, can be justified. We believe that the pledges we have given to the Falkland Islanders are much to be preferred to measures which, however well intentioned, would have consequences which could go a long way to nullifying the objectives of this long overdue legislation. I am afraid the Government see very real difficulties with these amendments. I hope that, in the light of what I have been able to say and the pledges I have been able to repeat, the noble Baroness and her noble friends will not press them.
I must say I am very dissatisfied with the noble Lord's reply. First of all, it is quite wrong to suggest that this is an emotional thing; it is not an emotional thing, it is what we think is the right of these people. The noble Lord says there was no nationality Bill when the pensioners were there, but of course they did not have to bother about their nationality. They knew they were British; it was quite obvious to them. When the noble Lord speaks of sympathetic consideration in emergencies, I wonder what kind of emergencies he means—whether they are travelling and get caught where they cannot get away with their passport. I think we need further explanation as to why they need this sympathetic treatment in emergencies. I would say to the noble Earl, Lord Lauderdale, that I have checked and this is what the people of the Falklands need.
726 If I may refer to the Bill, Clause 1 makes provision for the acquisition of British citizenship by those born in the United Kingdom, which throughout the Bill includes the Channel Islands and the Isle of Man. This is why I want the Falkland Islands to be included in this, and why we have put down this type of amendment. However, in view of the fact that I am not satisfied, and I do not think my noble friends are satisfied, I would beg leave to withdraw the amendment now, and reserve the right to bring it back at Report stage.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 144 not moved.]
§ Lord Pitt of Hampstead moved Amendment No. 144A:
Page 43, line 13, at end insert—
("For the purpose of this subsection a person is ordinarily resident in the United Kingdom or, as the case may be, a dependent territory, if that person's principal or permanent home for all ordinary purposes of living is situate in the United Kingdom or a dependent territory.").
The noble Lord said: I hope the Government will feel able to accept this particular amendment. All the amendment attempts to do is to define what is meant by "ordinarily resident". I regard that as of the utmost importance because Clause 1(1) says that
A person born in the United Kingdom after commencement shall be a British citizen if at the time of the birth his father or mother is—
Clause 49(2) says:
Subject to subsection (3), references in this Act to a person being settled in the United Kingdom or in a dependent territory are references to his being ordinarily resident in the United Kingdom or, as the case may be, in that territory without being subject under the immigration laws to any restriction on the period for which he may remain".
§ I am told on reasonable authority that there have been many different legal interpretations of what "ordinarily resident" means. If we are going to say that being settled in the United Kingdom means ordinarily resident, if the two things are to be accepted as having the same meaning, we should define what we mean by "ordinarily resident". My attempt here is to give such a definition. I am not tied to this definition in such a way that I will not allow the Government to say that they can word it better, but I do feel that we ought to define what we mean by "ordinarily resident", and this is merely my attempt to define it. I beg to move.
§ Lord Belstead
We have discussed this matter earlier on in dealing with the Bill, and I remember that on the previous occasion I said on behalf of the Government that the term "ordinarily resident" is a question of mixed law and fact which has not, as far as I know, been interpreted by the courts in a nationality context. Although I know at first sight this sounds unsatisfactory, I do not think that the absence of a definition of this term in the Bill will cause serious problems in deciding whether someone is settled here or not. Indeed, I think it could be harmful to attempt a definition since such a definition could exclude many deserving people.
If I may say so, the noble Lord's amendment, which I know is intended to try to be helpful and to clarify the 727 matter, illustrates the difficulty. Under the amendment a person claiming to be settled here would have to show, first, that he was free of any restrictions on his stay, and, secondly, that he was ordinarily resident, that his permanent or principal home was in this country. But there is ambiguity over the use of the word "home", which could create as much uncertainty as the term "ordinarily resident" itself. If a home, for instance, is where one lives—and this is suggested by the words "all ordinary purposes of living"—then arguably anyone who goes abroad for long periods is excluded, because he or she is living abroad and not here, even though that person may retain links here and be intending to return here.
It is certainly true that the place of one's principal home,however interpreted, would normally be an important factor in deciding whether a person was ordinarily resident here, but it would not necessarily be the only factor. Also this definition could be a source of much detailed argument about which of his homes was his principal or permanent home, and whether one or other home was the principal or permanent home for all ordinary purposes of living. That last phrase of itself could be a fertile area of argument.
I should like to say to the noble Lord, Lord Pitt, that if it were possible to produce a short, but above all comprehensive, definition of "ordinarily resident" he may be assured that the Government would be very ready to accept it. But I really do think that this amendment almost creates as many problems as it sets out to solve. I think the fact is that the term "ordinarily resident" really has to be related to the individual circumstances of the case, and can only be interpreted in that light.
§ Lord Pitt of Hampstead
I was going to ask the Minister whether he would like to have another try at defining it, but it seems that the Government do not think "ordinarily resident" should be defined. I think it ought to be defined; I think people ought to know what "ordinarily resident" means because it is of such importance in terms of Clause 1(1) of this Bill. However, we shall not get anywhere this evening. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 7.20 p.m.
Lord Avebury moved Amendment No. 144ZA:
Page 45, line 41, after ("mind") insert ("within the meaning of the European Convention of Human Rights").
§ The noble Lord said: I beg to move Amendment No. 144ZA. In the definition clause, we find that a person is of full age if he has attained the age of 18 years and of full capacity if he is not of unsound mind. It is important that a person of full capacity should be able to exercise certain privileges under Clauses 5, 11 and 12, for instance. He is not able to put in an application for naturalisation if he does not qualify as being of full age and of full capacity. Therefore, the interpretation of the phrase "of unsound mind" becomes of significance.
§ A person of "unsound mind" is not able, for instance, to put in an application for naturalisation. Therefore, one has to construe the phrase "of unsound mind" and one finds, in looking at the statutes, that it 728 has virtually disappeared from the rest of our legislation. The Mental Health Act 1959 replaced the Lunancy and Mental Treatment Acts 1890 to 1930 and the Mental Deficiency Acts of 1913 to 1938, and provided a single code to cover both mental illness and mental deficiency.
§ There is now a whole new language dealing with mental disorder which does not include the term "person of unsound mind". That has been discarded from the rest of our legislation. It has been pointed out to me that earlier this afternoon your Lordships were pleased to accept an amendment that came from another place as regards the Supreme Court Bill in which "of unsound mind" was taken out of another Act and instead there was substituted "a patient", meaning a patient in accordance with the definition of Section 101 of the Mental Health Act 1959. So I am afraid that if we did put this into the Bill at this point, it would create difficulties in the courts unless they were given some guidance as to what Parliament intended the phrase to mean.
On the other hand, the phrase does occur in Article 5(1)(e) of the European Convention of Human Rights. Perhaps I may remind your Lordships of what that says. Article 5(1) says that:
everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law".
It then goes through from (a) to (e) where it refers to the lawful detention of persons for the prevention of the spreading of infectious diseases, and refers to persons of unsound mind, alcoholics, drug addicts or vagrants.
§ So the occurrence of the words "unsound mind" in the European Convention of Human Rights has meant that the phrase has to be interpreted in the Commission and in the European Court. There have been a couple of cases where it has been of significance. There was X v. United Kingdom, Application No. 6998/75 where the appellant was detained in Broadmoor, and although he did not assert that his initial detention in 1968 was not justified on the grounds of his mental ill-health, he did argue that he should not have been recalled without due process after his release on licence. In that same case, reference was made to the case of Winterwerp v. Netherlands, Application No. 6301/73, where it was pointed out that under Netherlands law there is no definition of the term "unsound mind". What they have in the Netherlands is the Mentally I11 Persons Act—the Krank Zinnigenwit—where grounds are laid down under which persons may be compulsorily detained in hospital. I think it emerges from those two cases that some persons of unsound mind are compulsorily detained in both countries, and presumably in the rest of those countries which have signed the European Convention, without that representing any violation of their rights under the Convention. It may be noticed that both in the United Kingdom and in the Netherlands there are procedures for determining who may be lawfully detained under the Mental Health Acts in question.
§ The question that arises then is: are any persons who are compulsorily detained under the Mental Health Acts nevertheless of sound mind; and, conversely, are the persons voluntarily in hospital or being cared for in the community of unsound mind? I think that 729 the answer to the first question ought to be "No" unless the person comes within another of the provisions of Article 5. The answer to the second question is "Maybe"; but since we are now permitting voluntary patients and patients who are being cared for in the community to exercise all their other civic rights, I see no reason why we should not also permit them to exercise the rights that they would have under Clauses 5, 11 and 12 of this Bill.
§ For a discussion on these issues I would refer to a very interesting paper by Larry Gostin in the International Journal of Law and Psychiatry. In case anyone wants to look it up, it is volume 2 for 1979, pages 127 to 167. It is headed, "The Merger of Incompetency and Certification: The Illustration of Unauthorised Medical Contact in the Psychiatric Context." What Mr. Gostin is saying there is that the governing principle of the previous Government's White Paper was to extend the Royal Commission's formulation, so that the position of informal patients should be equivalent in all respects to that of non-psychiatric patients. That would mean that anybody who is compulsorily detained may be reasonably deprived of his civic rights, but if he is not compulsorily detained—if he is a voluntary patient or being cared for in the community—then he should be in the same position as any other person.
§ Therefore I would suggest that instead of the words "of unsound mind" the Government should consider that a person may only exercise the privileges in Clauses 5, 8 and 11 et cetera if he is not detained in a psychiatric institution under any of the provisions of the Mental Health Act 1959 or possibly, as an alternative, if he is a patient within the meaning of Section 101 of the 1959 Act. It is in order to explore whether the Government are prepared to entertain some alternative of this kind which would be much more readily understandable by patients and their families that I have tabled this amendment. I beg to move.
§ Lord Belstead
I recall some time ago making a lengthy speech about some Northern Ireland legislation and protesting against the use of the word "lunacy". The noble and learned Lord, Lord Elwyn-Jones, in his capacity as Lord Chancellor then, dealt in very kindly fashion with my speech and indeed I believe to some extent met what was, in fact, a protest at the use of what I and others believed was an out-of-date term. This, of course, is a rather different amendment, in that the noble Lord is objecting not so much to the term, but to the imprecision which is inherent in the use of the term. The difficulty which I see in the amendment is that the term "unsound mind" is not actually defined anywhere in the European Convention, although it is used in Article 5(1)(e) which is concerned with the lawful detention of persons of unsound mind.
As I am sure the Committee will appreciate, the interpretation of "unsound mind" in this context will be very different from its interpretation in the context of nationality applications. In the former case, one will consider, for example, whether the person concerned is a danger in some way, either to himself or to the public; but in the case of nationality applica 730 tion one is concerned whether the person is able to grasp the purpose of an application for citizenship and is able to take the oath of allegiance. I think that little advantage would be gained from trying to relate these two diverse aspects of the term "unsound mind".
I would further stress that the definition of "full capacity" as being "not of unsound mind" set out in Clause 49(11) is, incidentally, identical to the current definition in Section 32(9) of the British Nationality Act 1948. The noble Lord will say to me, "Yes, the whole point is that we have moved on since then and it has now become out of date". Maybe, but since 1948 I do not think that it has given rise to difficulty. I will certainly look at what the noble Lord has said. I think it is possible that there is a point here and I am very ready to look at what he has said in this respect, but it would have to be without any commitment.
§ Lord Avebury
I think that that is the most co-operative answer that I have had from the Minister during the whole of the proceedings on the Bill. I will not look a gift horse in the mouth. I will certainly beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 49 shall stand part of the Bill?
§ Lord Mishcon
Perhaps I could take up a few moments of your Lordships' time to make a protest and a plea. This is a definition clause, and taking it for granted, as we have to do, that there are to be citizens of British dependent territories, cannot we think of a better name for them other than a title that seems to betoken them as members of a British Commonwealth of soup kitchens? Surely the term "dependent" is not necessary here. Can we not think of a term such as "associated territories"? If that is caught by another Act, cannot the Government think of a more suitable term than this?
§ Lord Belstead
On behalf of the Government I will be ready to look at the point that the noble Lord has made. However, the point which the noble Lord has perhaps overlooked, and which perhaps some other Members of the Committee have also overlooked, is the supreme importance of having the word "British" in the title. This is what the Government, all noble Lords and Members of another place attach enormous importance to, and, of course, so do the people of those territories. This is the No. 1 priority. As regards the rest of the title, we shall look at what the noble Lord has said, but I cannot say that we shall necessarily come up with any bright ideas. Before I sit down, may I ask whether it is noble Lords' understanding that with Clause 49 goes Schedule 6, and then there are three other schedules which go with Clause 30? I was a little worried about the sequence with which we are taking matters and I thought that I would make sure before we continued.
§ Clause 49 agreed to.
§ Schedule 6 agreed to.731
§ Clause 50 [Meaning of certain expressions relating to nationality in other Acts and instruments]:
§ 7.34 p.m.
Lord Belstead: moved Amendment No. 145:
Page 46, line 31, after ("commencement") insert (" "British subject" means a person who has the status of a British subject under this Act;").
§ The noble Lord said: This is essentially a technical amendment which seeks to clarify one aspect of this clause which sets out how various terms relating to nationality are to be understood in the light of the Bill. The amendment makes clear that in any legislation passed or made after commencement the term "British subject" is to be understood as referring solely to those who are British subjects under this Bill—that is, those who hold that status under Part IV of this Bill. I must stress, however, that this limitation does not affect references to British subjects in legislation passed or made before commencement. Such references will continue to be understood as referring to people who are Commonwealth citizens; this is provided for under Clause 50(1). There is therefore no question—and I must stress this most firmly—that the Bill in any way affects the scope of references to British subjects in existing legislation. Such references will continue to be read as referring to exactly the same people as at present. But where legislation is brought forward after the commencement of this Bill, then references in such legislation to British subjects will be understood to refer only to those who are British subjects under Part VI of this Bill. I beg to move this amendment.
§ On Question, amendment agreed to.
§ Clause 50, as amended, agreed to.
§ Clause 51 agreed to.
§ Schedule 7 agreed to.
§ Schedule 8 [Transitional provisions]:
§ On Question, Whether Schedule 8 shall be a schedule to the Bill?
§ Lord Avebury
I should like to raise a very small point with the Minister, of which I am afraid I gave him notice only this afternoon. It is on Schedule 8, which is concerned with the transitional provisions. It relates to the position of British protected persons who made an application for naturalisation prior to the commencement of this Bill. As the Minister explained earlier, there is an improvement in the position of British protected persons, in that once the Bill becomes law they will be entitled to apply for registration as opposed to naturalisation. The question that arises is what happens to the people who are in the pipeline at the time of commencement and who have already submitted an application for their naturalisation.
As I understand it, under Schedule 8 these outstanding applications would continue to be dealt with in terms of the provisions of the British Nationality Act 1948, which, of course, in this respect is less favourable to the applicant and also requires greater resources in terms of police and Home Office time. I wonder whether it is possible for the Home Office to find some way of ensuring that these outstanding applications 732 could be automatically dealt with, as though they were applications for registration, without those concerned having to lodge fresh applications and without their losing their places in the queue, but perhaps at a fee appropriate to the exercise of an entitlement rather than naturalisation or discretionary registration. If so, it would be a waste of resources to interview these applicants, certainly in the London area. I am not sure what the average delay at each stage of processing is, but in the report of the Parliamentary Commissioner for Administration it was said in October 1969 that it took 10 months for papers to be returned by the Metropolitan Police following inquiry. So cases which are now being passed to the Metropolitan Police would probably not be returned to the Home Office until after 1st January 1982.
Therefore, I am suggesting that the time of the police and the Home Office could be saved by waiting to process these applications as though they were applications for registration immediately after the commencement of the Bill, although one appreciates that it might not be right for any such decision to be made until after the Royal Assent has been given and a decision has been made on the date of commencement. However, in order to save quite considerable resources in terms of police and Home Office time, I hope that this is a point which the Minister will undertake to consider.
§ Lord Belstead
The noble Lord, Lord Avebury, undoubtedly has a point. Nevertheless, the full process of naturalisation, which is expensive, will have been gone through in these cases or, if not in all these cases, in many of them; then there would have to be decisions as to exactly where the line should be drawn. No decision has yet been reached, but we will, of course, look carefully at the matter as put to me by the noble Lord, and will try to reach a decision before the Report stage of the Bill.
§ Schedule 8 agreed to.
§ Schedule 9 [Repeals]:
§ [Amendment No. 146 not moved.]
§ Schedule 9 agreed to.
§ Clause 52 agreed to.
§ The Title.
§ [Amendment No. 147 not moved.]
§ House resumed: Bill reported with amendments.