HL Deb 22 June 1981 vol 421 cc853-69

2.56 p.m.

Lord Belstead

My Lords, for some years now, successive Governments have worked on a revision of our nationality law. The reason is simply that citizenship of the United Kingdom and Colonies, created by the British Nationality Act 1948, no longer indicates who has the right to enter the United Kingdom and live here. There are citizens of the United Kingdom and Colonies who do not have the right of abode in this country and there are people who have the right of abode but who are not our citizens.

So in 1977 the previous Government published a Green Paper which put the matter very clearly. The Green Paper said: The most serious drawback to the status of Citizen of United Kingdom and Colonies is that it does not provide a ready definition of who has the right of entry to the U.K.". I hope that your Lordships—and many of your Lordships know very well the point that I have just made and know also of the many other contradictions and anomalies in our present nationality law—will agree that revision of our citizenship laws is, therefore, overdue. If we are to create a new law which will endure, all existing citizens of the United Kingdom and Colonies need to acquire citizenship status according to their particular circumstances.

Therefore, this Bill creates three new citizenships. Those whose connections are with this country would become British citizens. Those who possess connections with our remaining colonies or associated states would become citizens of the British dependent territories, and those who have no relevant links with either the United Kingdom or a dependent territory would become British overseas citizens.

May I start, perhaps rather strangely, with Clause 10. This clause is embedded in the middle of the Bill because it is a transitional provision, but the transition in this instance is something which concerns all of us. With one small exception in subsection (2), the clause takes everyone who has the complicated description of being a citizen of the United Kingdom and Colonies with the right of abode, and says simply that they shall be British citizens. The importance of Clause 10 is that for the first time the vast majority of people in the United Kingdom will have the certainty that the status of British citizen will, unambiguously, entitle the holder to the right of abode in the United Kingdom. Our present citizenship of the United Kingdom and Colonies does not do this. Having described which citizens of the United Kingdom and Colonies are to become British citizens on commencement, Clauses 1, 2 and 3 deal with the position of their children born after commencement.

Clause 1 of the Bill provides that a child born in this country after commencement shall be a British citizen at birth if either of his parents—and it is of course a great feature of this Bill that it deals on an absolutely even-handed basis with men and women in nationality matters—is a British citizen or is settled in this country. At present, any child born in this country is automatically a citizen of the United Kingdom and Colonies unless his father enjoys certain kinds of diplomatic or consular status. This means that citizenship is conferred on all who happen to be born here. It is hardly surprising, I think, that many other countries, including all but one of our European Community partners, operate a system whereby children born in their territory are citizens only if one of the parents (and in many cases it is confined to the father only) is a citizen. So I think there can be nothing unreasonable in our adopting the same kind of approach. But our approach is more generous because we would allow the children of "settled" parents who are not our citizens to benefit.

There has nevertheless been controversy over Clause 1. Most of it has centred precisely on that area where we are being more generous than most other countries who chose to confer citizenship by reference to the status of the parent. It has been argued that the concept of "settled" is not a wholly clear one, and that parents who thought that they were settled might find that in fact they were not. This would, it is said, happen either because they were not ordinarily resident here at the time of the birth of their child or because they were discovered to have been here illegally, that is to say in breach of the immigration laws. This could make it difficult for children many years afterwards to establish a claim to our citizenship which was based on the status of their parents at the time of their birth.

To try to meet these fears the Government introduced an amendment in another place which is now subsection (4) of Clause 1. This would enable a child who was not a British citizen at birth and who did not become one by the age of 10 to register on the grounds that he had lived here for 10 years since his birth. His parents' status would be irrelevant to his application and he would, accordingly, not have to prove what his parents' status was at the time of his birth.

Clause 2 puts into effect the view which was expressed both in the Government's White Paper and in the previous Government's Green Paper, that British citizenship should not be transmitted beyond the first generation born abroad, though it has been common ground, I think for a long time, that there must be exceptions to a rule of this sort. Thus, Clause 2 provides two important exceptions for people who clearly have close ties with the United Kingdom. These are for the children of Crown servants who have been recruited in the United Kingdom, and for the children of people whose service is designated as being closely associated with the activities outside the United Kingdom of Her Majesty's Government. Thus, for example, members of the armed forces serving abroad will transmit their British citizenship to their children in this way, and members of an organisation such as the British Council will be designated to benefit in the same way. Clause 2 also represents a very significant advance from the existing law as far as women's rights are concerned. At present women cannot pass on citizenship to their children born abroad—Clause 2 will enable them to do so for the first time. And by an amendment in another place the clause will also enable British citizens by naturalisation to pass on citizenship on exactly the same basis as people who are born here.

I must admit to your Lordships that the Bill as it was introduced proposed a distinction between the two categories. There were reasonable grounds for that approach but we reconsidered the position as a result of representations which we received. As a result we changed our minds, with beneficial results, I feel sure, for good race relations. The Government also recognise that cases where children are born overseas to parents who are citizens by descent and one of whom is working abroad also need exceptional treatment. I know that this is a matter which has concerned many Members of your Lordships' House, and therefore if I can direct your Lordships' attention towards Clause 3, this is a clause which has been amended by the Government in another place in response to points made about the need to ensure that as wide a range as possible of deserving cases of people working abroad should be covered.

The key part of Clause 3 is subsection (3), and in essence it means that British citizens by descent in employment abroad would be entitled to register their children as British citizens if they are working for British firms, or for foreign companies associated with British firms; if someone is working as a partner in a United Kingdom based firm, or for an international organisation of which this country is a member, he would benefit, and this includes the European Commission and the European Parliament.

Your Lordships may reasonably ask whether these provisions really will cater for those people who we want to encourage in these days to work for our country overseas. I honestly believe that the changes made to Clause 3 will achieve this objective, but do not let us forget that in addition Clause 3 continues the general discretionary power of the Home Secretary to register any child, and will enable citizens by descent to return home and have their children registered also after three years' residence.

Clause 4 is a very important recognition of the close association with the United Kingdom of those who would be citizens of the British dependent territories and would be British overseas citizens. It was put to the Government on their behalf that their special associations with the United Kingdom should be recognised in those cases where they are accepted for settlement here. This is done by Clause 4, which was added to the Bill at the Committee stage in another place. The clause also allows for the possibility, if the Home Secretary thinks fit in the special circumstances of a particular case, of granting British citizenship to those who serve the Crown under the Government of a dependency.

I assure your Lordships that this is the last of the clauses I am going to go through one by one, but if your Lordships will bear with me for a moment, with Clause 5 we come to the Bill's provisions for naturalisation as a British citizen. As in the 1948 Act the Home Secretary has an absolute discretion whether or not to register in any particular case. But for the first time the husband or the wife of a British citizen may apply, on exactly equal terms, for naturalisation after three years instead of five.

The requirements for naturalisation in this clause and in Schedule 1 follow, with some modifications, the existing legislation in so far as the basic requisites of residence, good character, a knowledge of the language and an intention to reside here are all to be taken into account. The language may be English or Welsh, and although the noble and learned Lord, Lord Elwyn-Jones, may tell me that such a provision is unnecessary because good character and a knowledge of the Welsh language are mutually interchangeable, none the less I hope that this provision will be acceptable. All this is set out in paragraphs 1 to 4 of Schedule 1.

There is just one feature that I must mention. Much of the assessment of a person's application for naturalisation is bound to be subjective. For instance, there really has to be an element, I would argue, left to the Secretary of State's judgment of good character, based on an analysis of all the factors of a particular case, in order to be sure that an unsuitable person is not naturalised. The previous Government did not reach a conclusion on this matter but, as their Green Paper pointed out, the issues are not easily justiciable. One can think, for instance, of the person who is a security risk who says he wants to be naturalised, leads an orderly life, and has no previous convictions, but it would not be in the national interest that he should be naturalised. For those reasons, naturalisation cases never have been subject to appeal and, as the Bill is drafted, they are not to be.

Clauses 6 to 8 cover people who currently possess expectations of or entitlements to registration which it is proposed should not continue indefinitely under the Bill. In general, however, those affected would be given five years in which to decide whether or not they wished to claim their existing rights to registration. Essentially, that covers the subject areas of Part I.

Part II of the Bill makes similar provision for citizenship of the British dependent territories to that made in Part I for British citizens. I wish, however, to stress that the Government fully sympathise with and appreciate the strong feelings of affinity with the United Kingdom which people in the dependent territories have. However, it is unsatisfactory and misleading to continue the present system wherein the dependencies share our citizenship in name but have no right of abode in this country. We need to create a distinct citizenship of the British dependent territories, while our existing moral and constitutional ties remain unchanged. That was made crystal clear by my right honourable friend the Home Secretary on Second Reading in another place, when he said: The Bill in no way alters the position as regards the United Kingdom's moral and constitutional responsibilities for the territories in question. Nor does it in any way affect the special position of Gibraltar as part of the European Community". My right honourable friend also made particular reference to the position of the Falkland Islands and Hong Kong. This commitment to our links with the dependencies is of course reflected in the provisions of Clause 4, to which I have referred, which gives citizens of the British dependent territories whom we accept for settlement an entitlement to registration after being here for five years. It also holds out the possibility, if the Home Secretary thinks fit in the circumstances of a particular case, of registering as British citizens those who have served the Crown under the Government of a dependency.

Part III of the Bill contains the provisions for those who are to become British overseas citizens. These are the people who are currently citizens of the United Kingdom and Colonies but who do not have the right to enter this country and do not have connections either with an existing colony or an associated state. The great majority of these people are living in the territory of the former dependency from which they derived their citizenship of the United Kingdom and Colonies, and many of course possess local citizenship. The new citizenship which the Bill would give them reflects these distant ties with the United Kingdom itself.

But the Bill does not alter one important aspect, namely, that we shall continue the special voucher scheme for certain United Kingdom passport holders in East Africa or those who have gone to India. Moreover, as I have already mentioned, those accepted for settlement in the United Kingdom would, under Clause 4, be entitled to registration as British citizens after five years in the United Kingdom.

Those are the main provisions of the Bill, for which, it is fair to claim, the need has been recognised for some years as our citizenship has become increasingly remote from the right to enter and live in this country. Throughout the passage of the Bill in another place the Government have done their best to meet the anxieties which have been expressed both by explaining the Bill's provisions and by tabling several suitable amendments. We now have before your Lordships' House a basis for nationality law for the future which in very many respects is generous as well as reasonable.

I should like to repeat what my right honourable friend the Home Secretary has said many times; that the Bill in no way affects the position under the immigration law of people lawfully settled here. The members of the ethnic minority communities can, therefore, feel absolutely secure, and I would draw particular attention to two matters which should leave them in no doubt of that. The first is the Government's decision not to change the law on dual nationality. This we did mainly because we were told that some members of the ethnic minority communities settled here would find it easier to settle down if they were not required to make a choice between their existing citizenship and ours.

The second matter concerns Clause 43(1), which requires the Secretary of State not to discriminate on grounds of race, colour or religion. We put that in not because there is in fact any question of there being any discrimination practised by my right honourable friend on those grounds, but because it shows that the Home Secretary's powers of discretion in the future under the Bill will be exercised with that fairness which will give a sense of security.

It was thus with a sense of some disbelief that I opened my Order Paper last week and read the Motion put down in the name of the noble and learned Lord, Lord Elwyn-Jones. That Motion suggests that the passage of the British Nationality Bill should be shelved in view of the sense of insecurity among the ethnic minorities. I hope I have said enough to show that a sense of insecurity would not be instilled in the ethnic minority communities provided that the provisions of the Bill are represented accurately and fairly, as I know the noble and learned Lord will represent them. As to the reference in the Motion (by reference to Lord Scarman's Inquiry) to Brixton, I hope the House will agree that my right honourable friend was right to set up immediately the Inquiry under the noble and learned Lord, Lord Scarman, and that the events of Brixton should be left to the skill and fairness of the noble and learned Lord's Inquiry and should not be imported into our debate today.

So far as the Motion in the name of the noble Lord, Lord Avebury, is concerned, I am sure it will come as a disappointment to the whole House when I reveal that the Government cannot support that Motion. I know that many noble Lords, particularly my noble friends, are longing to be incarcerated for many months in a Select Committee with Lord Avebury, but that will not do. This is a Bill which has been prepared on the basis of ground work undertaken over many years. The Labour Government's Green Paper on this subject was produced in 1977 and was followed by the White Paper of the present Government in July of last year. There have been nearly 200 hours of discussion in another place, and I think your Lordships will agree that those most interested in the Bill will have no difficulty in making their views known in your Lordships' House.

The Bill is a just and reasonable measure to offer for consideration in the normal way by your Lordships' House. It will at last put our nationality law on a rational footing, and I have no hesitation in asking your Lordships to give the Bill a Second Reading.

Moved, That the Bill be now read 2a.—(Lord Belstead.)

3.19 p.m.

Lord Elwyn-Jones

My Lords, the long list of noble Lords who have indicated their wish to speak in the debate is a measure of the importance of the Bill. We shall look forward in particular to hearing the maiden speech of my noble friend Lord Elystan-Morgan, a former Minister at the Home Office.

That there is need for a new nationality Act is undoubted. What is remarkable is the extent of the opposition to the attempt to do so in this Bill. Despite the assurances given by Ministers in another place and the gracious way in which they have been repeated by the noble Lord, Lord Belstead, this afternoon, seldom has a major piece of legislation received so hostile a response from so many responsible and well-informed sources as has been the case with this Bill.

Churches of every denomination have condemned it in the severest terms. The Assembly of the British Council of Churches has opposed it as, morally questionable and racially divisive", and has called on its members to, strengthen opposition to the Bill, in the hope that even at this stage Her Majesty's Government will withdraw it and frame new legislation". The British Council of Churches and the Catholic Commission for Racial Justice have reiterated that view.

The Bill has been strongly condemned by the Roman Catholic Archbishops of England and Wales. Those archbishops formulated nine fundamental principles, for which they found widespread support both in and outside the Churches, in order to guide the framing of a new law. They state that they did so, out of concern for everyone involved, but particularly for the minority community in our midst and for those who are vulnerable and insecure". They add, Far from responding to this concern, the Bill creates new uncertainties and, if it becomes law, will sharply increase feelings of vulnerability and insecurity". The statement continues—and I make no apology for quoting from it: Members of minority groups who were born here will face more frequent questioning of their status. Many people will be deprived of their entitlements to registration; and there is bound to be uncertainty as to how civic rights may be redefined in the future and to whom they may be extended. Those who become British Overseas Citizens will be rendered virtually stateless. The scope of the Home Secretary's discretion will increase, and in most cases his decision will be absolute. The Bill [they say] is misconceived in that it ignores the principles on which a moral consensus might be based. We are fearful that the consequences of such a measure will be grave. We must therefore oppose the Bill and urge that even at this … stage the issues involved be reconsidered". That is a formidable indictment issued over the names of Cardinal Hume and the Archbishops of Liverpool, Birmingham, Cardiff and Southwark. I make no apology for bringing the views of those great men to the notice of the House.

Women's organisations have also been concerned about the Bill. A working group of the Women's National Commission, with representatives from nine major women's organisations, in its report in May of this year stated: The Bill is very complicated"— No one in the House will deny that!— and will lead to misunderstanding, fear and uncertainty among minority groups, and will create unacceptable administrative burdens at a time when administrative costs are being reduced and long delays are already being experienced". They add: We are specially concerned that in the present difficult economic climate, with the pressures and frustrations of unemployment, no minority group shall feel so insecure, disenchanted and discriminated against that disharmony and social strife result". The Action Group on Immigration and Nationality has made a detailed criticism of the Bill. So has the Joint Council for the Welfare of Immigrants. So has the Commission for Racial Equality. As I say, seldom has there been such a chorus of responsible opposition to a Bill. The Bill runs into trouble in its very first clause, which in many ways is one of the most fundamental in the Bill. It deals with acquisition of British citizenship by birth or adoption. For centuries citizenship of our country has been the birthright of everyone born within, irrespective of their parents' citizenship. The Bill proposes to abandon this ancient principle. It is followed in every country to which the common law has gone, in the United States, and in many Commonwealth countries.

The principle has survived over the centuries because it has the great merit of simplicity. Mr. Paul Sieghart, the chairman of the Executive Commitee of Justice, the British section of the International Commission of Jurists, has reminded us that we became British by being born here. Every Briton alive today is descended from immigrants. I am happy to say—and I have been encouraged to do so by the noble Lord, Lord Belstead—that the Celts were the first immigrants to these islands. I should like to remind the House of an occasion when someone was foolish enough to criticise Lloyd George in another place. He said: When my forebears were enjoying a high standard of culture and civilisation in Wales, the forebears of the honourable gentleman were living on the barren shores of the North-East coast on piracy, paganism and periwinkles". I hope that I am not making any friends in the North-East by reminding the House of that story.

After the Celts there came Phoenicians, Romans, Angles, Saxons, Danes, Normans, Huguenots, Flemings, Jews, Poles, Italians and Cypriots; and in the post-war period there were immigrants from the Dominions and Colonies. As has been written on behalf of Justice, What has made us British is that our ancestors came here and that their children were born here". I should add that in due course they learned to live and work together in this, perhaps until now, the most tolerant of all societies. That is what we must now try to achieve, and we fear that the Bill will not help.

Now for the first time in our history the Bill proposes to abolish British citizenship by the simple fact of British birth. It is replaced by a complicated provision which is a mixture of birth, descent and immigrant status. A child born in the United Kingdom will be a British citizen only if at the time of his birth one of his parents was either a British citizen, or was settled in the United Kingdom. For the first time in our history a number of children born in the United Kingdom will be stateless.

As the noble Lord, Lord Belstead, indicated—though he thought that it had been remedied in the Bill—there will be uncertainty as to the interpretation of the word "settled", which in Clause 49 is defined to mean, ordinarily resident in the United Kingdom … without being subject under the immigration laws to any restriction on the period for which he may remain". However, the term "ordinarily resident" has already given rise to difficulty as to its meaning; there is a multiplicity of cases about its meaning.

I ask, why is this fundamental change in our law being made? As has been asked, are there queues of highly-pregnant foreign ladies at our ports, trying to get here in time to confer the blessings of British citizenship on their offspring for use in later life? If not, can one really blame the present first generation immigrants who, unlike our immigrant ancestors of earlier times, are often black, for believing that this volte face is directed at their British-born children?

The change proposed in Clause 1 is no mere technicality. As a study by the Action Group on Immigration and Nationality has stated— The certainty that any child born here is a citizen irrespective of parentage has been an important factor encouraging the security of ethnic minorities. Even a limited departure from jus soli"— the principle that I have described— undermines that security and has aroused a fear that it may pave the way to a future denial of citizenship to children born here to immigrant parents". As the noble Lord has said, it is true that the Bill makes a concession in Clause 1(3) to the effect that, a person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) or (2) shall be entitled to be registered as a British citizen if, while he is a minor. … his father or mother becomes a British citizen or becomes settled in the United Kingdom; and … an application is made for his registration as a British citizen". Applications for registration may be made when the child is 10 years of age, if, as regards each of the 10 years of his life, the Secretary of State is satisfied that the number of days on which he was absent from the United Kingdom in that year does not exceed 90". It is a formula that I believe is bound to produce uncertainty and arbitrariness. Who can say with certainty and confidence where or when he or she travelled during the first decade of his or her life? In this country, unlike in many others, we do not have identity cards or registers, save for the registration of births, deaths and marriages. Up to now, we have relied upon the birth certificate to establish a person's citizenship. I venture to suggest that the new proposals will be extremely difficult to administer, and this will be a cause of anxiety and confusion.

The very complexity of the Bill and the procedural difficulties which it creates will impose a considerable burden on many people who do not fully understand their status. No less than five forms of citizenship emerge from the Bill: First, British citizenship; secondly, British citizenship of the British dependent territories; thirdly, British overseas citizenship; fourthly, a British protected person; and fifth, British subjects without citizenship. Apart from the first class—British citizenship—they enjoy no right of abode anywhere, and therefore no citizenship.

These impressive new titles are in truth contradictions in terms. Only British citizenship is a proper citizenship, conveying as it does the right of abode in a national territory. Citizenship of the British dependent territories does not in itself convey a right of abode, although most citizens of those territories will have a right of entry under the immigration laws of the particular dependency. British overseas citizenship will be acquired principally by persons who are citizens of the United Kingdom and Colonies who derive their present citizenship from a connection with a former British dependency or Crown service. Some of them will have another citizenship or nationality, as I have said, but 210,000 of them will have no right of abode in any country. Many of them have direct and close connections with people lawfully resident here. The Commission for Racial Equality recommends that all United Kingdom passport holders who can show they have no right of abode in any other country should acquire British citizenship as a right. This is because British overseas citizenship will be the only citizenship in the world that is not linked with any territory, nor carry with it a right of entry and abode in this country. This defect brings into question the validity of the whole concept of British overseas citizenship.

Another critical feature of the Bill is that it takes away rights that are significant to the black community, although it is true to say that these rights are not held exclusively by them. Most important is the right to registration of Commonwealth citizens settled here before 1973. Clause 6 of the Bill continues this right for only five years after commencement and confines it to those who hold it at commencement, so that young blacks who are still minors at commencement lose this right. The Immigration Act 1971 preserves this right indefinitely on the principle of continuing rights already acquired for the lifetime of the holders. The Bill will remove entitlement which many thousands of settlers at present possess, and the cost of obtaining citizenship will be sharply increased and would be very substantial indeed.

The principle of enjoying existing rights in the context to which I have referred is largely preserved in the Bill where the rights of, largely, white people are preserved for their lifetime. I refer to the right of Irish citizens to declare that they remain British subjects and the right of abode of Commonwealth citizen patrials for the rest of their lives. I fear that one must face the fact that in consideration of the whole of this Bill we must be conscious of the suspicions and doubts of those to whom I have referred. The Bill will remove entitlement which many thousands of settlers at present possess and, as I have said, the cost of obtaining citizenship will be substantially increased.

Another disturbing feature of the Bill, I submit, is that it gives excessive power to the Secretary of State—fair minded, as I personally know, though the present holder of that office be. In the Bill, the Secretary of State is vested with a great many disdiscretions; for example, whether to grant naturalisation or whether to accept a registration as a British citizen. The Secretary of State is not obliged to give any reasons for his decision and Clause 43 of the Bill in turn states: (2) The Secretary of State, a Governor or a Lieutenant-Governor, as the case may be, 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". There follow the critically important words: the decision of the Secretary of State or the Governor or a Lieutenant-Governor on any such application shall not be subject to appeal to, or review in, any court". We shall wish in due course to canvass whether there should be a right of appeal against a refusal of naturalisation. Clearly, where a question of national security arises, appeal proceedings would need to be in camera. But as to this, the Secretary of State already has the help of a committee of inquiry under the British Nationality Act 1948, where he is minded to deprive a registered or naturalised citizen of his nationality or on appeals against deportation on security grounds. There is also excluded in the provisions of the Bill any right to a review of the matters and decisions in any court. We have changed a good deal in the value and effectiveness of judicial review since 1948 when, it is true, the same provisions exist in the British Nationality Act of that year. A Supreme Court rule, Order No. 53, introduced on the recommendation of the Law Commission, achieved a major advance in modern administrative law. Its availability will be of particular value, I submit, in ensuring that the provisions of Clause 43(1) of the Bill—namely, that any discretion vested 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 being exercised—is not merely a cosmetic frill, and we shall return to this at a later stage.

I note with alarm the passage of time and I remember the number who are to speak, so I shall conclude very shortly. There are a large number of other issues, including the requirements for naturalisation in Schedule 1; the provisions for the acquisition of citizenship by adoption or through marriage; the provisions for British citizenship by registration; the right to a British passport; and the civic rights of Commonwealth citizens and how, if at all, they will be affected by the Bill. Then there are the anxieties which have been expressed, as the noble Lord has said, from Gibraltar, Hong Kong and the Falkland Islands, which we shall have to consider seriously and sympathetically.

My Lords, I conclude by saying this. The Bill comes before this House at a time of serious deterioration in race relationships in this country. Its causes in the particular area of Brixton are now under the skilled investigation of the noble and learned Lord, Lord Scarman, to whom go our best wishes in the heavy task he has undertaken. In so far as this Bill discriminates against the black members of our multiracial society, or may reasonably be thought to discriminate against them, this could well be an additional inflammatory element in an already precariously balanced situation. It is because we think that in its present form and content the Bill does so discriminate that my noble friends and I have put down the Motion standing in my name. I beg to move.

3.42 p.m.

Lord Avebury

My Lords, on one matter we certainly agree with the noble Lord, Lord Belstead, and that is that the legislation now before us, or something on those lines, is necessary. But we take the view that it is not a matter of such urgency that we need to press on with it and ensure that it reaches the statute book during the present Session.

The Lord Chancellor

My Lords, I wonder whether the noble Lord will forgive me. Unless I am mistaken, I heard the noble and learned Lord beg to move. The Order Paper and the advice I have had indicate that his Motion arises only if the Bill be read a second time. I should like guidance from the House as to how I should put that Question before the noble Lord, Lord Avebury, speaks.

Lord Elwyn-Jones

My Lords, it may well be that I was formally at fault in moving the Motion at that moment. However, that is a useful indication that when we come to the end of the proceedings I shall move it only formally.

The Lord Chancellor

Then may I take it, my Lords, that my inclination is right and that I am to put that Question only if the Bill receives a Second Reading?

Lord Elwyn-Jones

So I understand, my Lords.

Lord Avebury

My Lords, I was in fact assuming that that had been the case, and that I was to speak on the Second Reading of the Bill rather than on the noble and learned Lord's Motion. I was about to remark that there is nothing in this measure which is of such great urgency that if we do not pass it there will be a threat to the security of the state, or that a failure to pass the Bill might damage our chances of economic recovery. There will be certain administrative complications if the Bill is held over to another Session, but nothing more than that.

I must disagree with the noble Lord, Lord Belstead, on the principles on which this Bill is founded, and this, I think, is what requires a good deal of further examination before we part with it. We disagreed with the previous Government's Green Paper of April 1977, from which in fact this Bill is largely derived. My right honourable friend the Leader of the Liberal Party said that it was marginally worse than those proposals; but we said we disagreed with those proposals in a paper which we published in July 1977, entitled Who's Your Father? Now that the Labour Party is in Opposition and, as frequently happens, they are taking a more liberal line than when they were in power, our view is still the same. It may well be that there is joy in heaven over the sinner who repenteth, but on earth it is wise not to rely too heavily on the permanence of his reform; and I am afraid that when the Labour Party came back into office many of the things they are saying now would not be part of their policy. I should have said, "if they came back into office".

In another place the Bill was not properly discussed, in our view, in spite of the many sittings devoted to it in Committee. As a result of behind-the-scenes manipulation, which was in fact confirmed by Mr. Alex Lyon as if it were something to be proud of, the Liberal representative was excluded from the Standing Committee in favour of the right honourable Member for Down, South. But on an important constitutional issue such as nationality and citizenship, it is in our view essential that as wide a range of opinion as possible should be consulted.

As the right honourable Member for Birmingham, Sparkbrook, pointed out, a new procedure has been made available in another place to enable experts and other interested parties to offer opinions and advice on Bills, and it was a great pity that they did not follow that procedure down the line, because we think that this measure would have been so pre-eminently suitable for it, and we intend to suggest that your Lordships remedy their omission by committing the Bill to a Select Committee in your Lordships' House. I was glad to hear the noble Lord, Lord Belstead, say that there was general enthusiasm for the proposition on the Benches behind him, although the Government were not able to advise that it should be accepted. When we come to it at the end of the day, it will be up to those noble Lords who he says go along with us in the belief that this is the correct way to proceed to vote in favour of such a Select Committee.

My Lords, it is 33 years since there was last a major reform of nationality law, and a further delay of one year, which might have to be accepted if the Bill is to be examined thoroughly, is not going to create problems for anybody. The people who stand to benefit from its provisions, such as the children born overseas to United Kingdom citizen mothers, who I am very pleased to note are now being granted British citizenship as of right, could still do so from the date of publication of the original Bill if Parliament so provides. Those who might be disadvantaged, such as the children born in this country who are no longer to enjoy an automatic right to United Kingdom citizenship, could be granted a stay of execution by the delaying of the Bill. But where the effects of the Bill are less harmful to the interests of minorities than has been alleged, the Government would have ample further opportunities for clearing up any misunderstandings such as the noble Lord, Lord Belstead, says have arisen.

But where fundamental principles are at stake, there would be opportunities for the sections of the community which are not represented in either House to present their views directly instead of at second-hand—and I attach enormous importance to this aspect of our proposals. Because of the anti-democratic nature of the electoral system in this country, the ethnic minorities whose members are going to be disproportionately affected by these proposals have had to rely on representations made in writing on their behalf by organisations like the Commission for Racial Equality, their own community organisations and, of course, the Church of England and the Roman Catholic Church. They have had no direct voice, and they had none in the lengthy deliberations which took place in another place in Committee, and we can remedy that injustice now.

On the other hand, I must say that the extreme Right had far more than its share of time. There were five members of the Standing Committee who represented the lunatic Right point of view, and one may think that in spite of the timetable they could not really complain. But, when the Bill returned to the Floor of the House in another place, only three days were allowed for Report and Third Reading, when the balance might have been redressed. Now the Government complain that their proposals have been misunderstood. It is because everybody except the most blinkered Conservative sees clearly that these proposals spring from what Mr. Hugo Young has called, the ugly side of the Conservative Party", that not only are liberals in this country alarmed but also our partners in the Commonwealth.

The Prime Minister could have been under no illusions about the strength of feeling in India after her recent discussions with Mrs. Ghandi, and the more public expressions of Indian opinion she will have observed for herself during her recent visit. An added advantage of our proposal would be that it would allow the Government to consult more fully overseas, not only with independent countries such as India, but also with representatives of the remaining dependencies, like Gibraltar and the Falkland Islands, whose case has already been recognised in this debate.

In spite of all that has been said up till now, the Bill contains two elements which we say are totally unacceptable to our party, as we have made quite clear all along. When the Labour Party first suggested dividing the citizens of the United Kingdom and Colonies into sheep and goats formally according to whether or not they had a right of entry into the United Kingdom, we said then that the idea was objectionable because we had never accepted the doctrine of the infamous 1968 Immigration Act that some of our citizens should be excluded from their own country simply because of the colour of their skin. We object even more strenuously to the scheme in the present Bill which divides our citizens into three separate classes, the third of which has no right of abode anywhere in the world. The noble and learned Lord said that there are 210,000 of these people of whom 75,000 have the right of entry. The remaining 140,000 effectively will have no right of abode anywhere in the world. We shall have to examine the implications of this scheme closely either when the Bill goes into Committee or, preferably, a Select Committee, but I mention just two of the consequences of that principle for your Lordships to consider now.

First, a non-patrial citizen of the United Kingdom and Colonies who has lived in the United Kingdom for four years at the commencement of the Act would become a British overseas citizen. He has lived here for four years. He is a citizen now, but he becomes a British overseas citizen by a stroke of the pen on the passing of this Act and has to apply a year later to be restored to the citizenship that the Government have taken away from him. He will have to pay £50, or probably more as the result of inflation, for the privilege and, as there will be a huge surge in applications for registration as a result of this Bill, he may have to wait a very long time for that application to be granted. On the other hand, his cousin who has been here for five years and one day at the commencement of the Act gets British citizenship automatically. Where is the logic of that? Secondly, the child of a citizen of the United Kingdom and Colonies born in Malawi after the commencement of the Act becomes stateless because Malawi does not allow persons who are not of African descent to be her citizens.

The provisions in the Bill for reducing statelessness on which the Government relied in debates in another place do not help, because they apply only to persons who succeed in remaining in the United Kingdom or in one of the dependent territories for three years; so the Malawian child does not benefit because, being subject to immigration control, this child will never get past an immigration officer at Heathrow.

Turning to the other major objection of principle that we have to the Bill—and the noble and learned Lord has already mentioned it—the Government are proposing to abandon jus soli, the right of citizenship possessed by a person who is born within the United Kingdom. Initially, the Bill as drafted would have provided that a child born in the United Kingdom to parents neither of whom were settled at the time failed to qualify for British citizenship. Under pressure, it has been said, the Government agreed that if the child succeeded in remaining here for the first 10 years of its life and was not absent for more than 90 days in any one of those years, it would become entitled to registration. This was certainly an improvement; but we cannot accept it as the final answer. In attempting to deny citizenship to the children of illegal entrants, over-stayers and students (the three categories mentioned by Mr. Raison as the people against whom this provision was aimed), the Government are introducing an enormous layer of complication and bureaucracy into the lives of recently-arrived immigrants who want to take their children abroad for any reason, because, in order to get a passport they will have to satisfy the authorities in future that they were settled here at the time of the child's birth. Even after 10 years, they have to prove that the child has resided here for the whole of the first decade of its life by producing evidence from doctors, teachers, and what the Minister has called, "other reliable witnesses".

Again, for the sake of brevity, I give just two examples of what may happen as a result of this change in the law. First, a Russian dancer who applies for asylum in London and who, while her application is pending, has a baby. That child is stateless and remains so for the first 10 years of its life. If the dancer accepts professional engagements overseas, she cannot take the child with her because it must remain in the United Kingdom for the first 10 years of its life in order to comply with the conditions laid down in the Bill and so as not to jeopardise its later claim to British citizenship.

Secondly, a Filipino domestic who arrived here as a work permit holder in 1972. She has a child immediately after the commencement of the Act. The child is, prima facie, entitled to the new British citizenship because the mother appeared to be settled here at the time of its birth. Many years later, irregularities, say, are discovered in the references used by the mother in order to obtain her work permit. She is retrospectively declared to have been an illegal entrant and the child becomes stateless. Again, the provisions in Schedule 2 for producing statelessness do not apply in that case. The reason for ending jus soli was stated plainly by the Minister in Committee—that over the years it meant: an increase in our potential immigration commitment This is also the reason for downgrading the citizenship of people who now possess United Kingdom citizenship overseas. Although neither citizens of the British dependent territories nor British overseas citizens have any right of entry to the United Kingdom now, in practice British overseas citizens (as they will become) are not deported if they gain admission for some temporary purpose and then seek to remain permanently; while the continued existence of colonies with the same citizenship as the mother country creates a continuing moral, if not legal, obligation which the Government think may be extinguished by an Act of Parliament.

Apart from these issues of principle, there are other matters of considerable importance to the people who will be affected by them which have been insufficiently canvassed—and some of them have been mentioned by the noble and learned Lord. There is, for example, the right of transmission of citizenship through the female line which, as I have said, we are pleased to see is now conceded in principle, but only to be given to children born after the passing of the Act.

We shall want to explore the logic of agreeing that a sexually discriminatory provision in our citizenship law ought to be eliminated yet the people who are now at a disadvantage as a result of that provision should be left to suffer. And there is the retention of the discretionary power of the Secretary of State to grant or withhold naturalisation without giving any reasons and with no rights of appeal. The noble Lord, Lord Belstead, says that that is to ensure that unsuitable persons are not naturalised. But he knows as well as I do that the Secretary of State, advised by one of the Ministers, frequently rejects applications for citizenship on the most trivial and insufficient grounds. And there is the abolition of the right of registration for Commonwealth citizens after five years of the passing of the Act. There is little enough left to bind us to our friends in the Commonwealth and one would have thought that, wherever possible, the Government would have been determined to keep whatever signs there are of those links in our legislation.

In conclusion, it is the Government's implacable determination to exclude people who are mostly not of European ethnic origin from the new first class citizenship, and the unpleasantly racist overtones of much of the debate on these proposals, which have caused such dismay among ethnic minorities in this country and people in the new Commonwealth generally. We believe that this measure ought to be substantially remodelled so as to enable us to comply with the spirit of our undertakings in international law, and in our international obligations, including particularly our membership of a voluntary multiracial association of states, the Commonwealth, and adherance to the European Convention on Human Rights, the fourth protocol of which lays down the right of a citizen to enter the country of his citizenship. It is because of our immigration laws and because of the restrictions we have placed on our own citizens entering Britain that we have never been able to adhere to that protocol. We believe that the most effective and thorough way of conducting this examination is by sending this Bill to a Select Committee. But either there, or on the Floor of the House, we shall do our utmost to put right the defects that we see in this Bill, which if they are allowed to remain would proliferate bureacracy, harm race relations and undermine the Commonwealth.