§ 3 p.m.
§ Report received.
§ Clause 1 [Acquisition by birth or adoption]:
§ Lord Elwyn-Jones moved Amendment No. 1:
Page 1, leave out lines 10 to 12 and insert—
("(a) his father or mother is a British citizen; or
(b) his father or mother is settled in the United Kingdom; or
(c) he would, but for this subsection, be stateless.").
§ The noble and learned Lord said: My Lords, in moving the first amendment at the Report stage of this Bill it would be churlish on my part not to acknowledge that in several of the amendments that the Government have put down for this Report stage they have given due heed to the arguments that were brought forward, both from the Opposition Front Benches and from all parts of the House during the Second Reading and the Committee stage of the Bill, against many of its provisions. I should like to pay particular credit to the noble Lord, Lord Belstead, who I am sure must have laboured hard and long, as we know he did at the earlier stages of the Bill, and possibly also during the Recess as well.
§ Of course, we on this side of your Lordships' House regret that the Government have not been able to go 9 further; and now is their golden opportunity, at this Report stage, to improve the Bill even further, by giving acceptance, or at least certainly sympathetic consideration, to the amendments that are now on the Marshalled List. Perhaps I may be permitted again to add that the procedures of the Bill through your Lordships' House have established the value of the House as a revising Chamber.
§ My Lords, the purpose of the first amendment is to provide that a child born in the United Kingdom shall be a British citizen if it would otherwise be stateless. It is an attempt to reduce the damage which we believe was done to human relations when the old principle of jus soli was thrown overboard by the Government in the early stages of the Bill—the principle that British citizenship is conferred on every child born in this country. During the debates on the Bill great concern was expressed from all parts of the House—from the Government side, the other side, and from the Bishops' Benches as well—about children born here being and becoming stateless in future as a result of the provisions in this Bill. Hitherto, the United Kingdom has had an honourable record in this field. It was one of the first countries to ratify the United Nations Convention on the Reduction of Statelessness. Even when it did so, moreover, little change was then needed to our law to conform to the convention's requirements. The time-honoured principle of jus soli already ensured that no child could be born stateless on the territory of the United Kingdom itself or in any of its dependent territories.
§ Since 1922 provision has been made for children born in foreign countries to British fathers to acquire British nationality. The British Nationality and Status of Aliens Act 1922 actually had retrospective effect back to 1914 to make sure that children born abroad after the 1914 British Nationality Act would be entitled to British nationality even if the family had been living abroad for several generations provided the birth was registered within the appointed time at a British consulate. Thus, the only significant changes that had to be made in the British Nationality Act 1964 following the ratification of the Convention on the Reduction of Statelessness was to provide for foundling children to be citizens and to give an entitlement to registration to children born of British mothers abroad where the child was stateless.
§ This honourable record will be abruptly brought to an end if the Bill remains unamended. There will be children born stateless in this country and in the dependencies; and there will be children born stateless to British parents abroad. The latter can perhaps be protected by amendments to Clause 3, which we have of course been pleased to see and which we will discuss in due course. But we are concerned now with the former category—children who will be born on British soil but without any kind of nationality.
§ Statelessness has been one of the many curses of the twentieth century, perhaps equalled in this field only by the refugee problem. This is becoming the century of the refugee, with 5 million refugee children. But the incidence of statelessness has increased enormously during this century, at the very time when to have a nationality has become increasingly important to the individual. Eighty years ago people could still move around the world without even needing a passport most 10 of the time. They could look for a job and a home in any country in which they found themselves. But, today, to be stateless is to have no right to live or to work anywhere at all; it is to lack a basic human right.
§ The United Nations Convention was framed 20 years ago, not in the hope of overcoming the appalling problem of statelessness completely and at once but at least in order to lay down rules that would go some way to provide minimum standards by which states could begin to tackle the problem. Most states have not even ratified the convention, and have not set themselves the task of meeting even the minimum requirements of the convention that were suggested. To be stateless is therefore still not only a terrible disability but one which is hard to cure.
§ We should weigh this carefully in our minds when considering the situation of children who may be born stateless here in future because they will have no right to remain here permanently. The Government, I understand, intend to lay new immigration rules to come into effect at the same time as the present Bill; and although in another place, as I understand it, the Home Office Minister refused to lay draft rules before the Committee, I think he made it clear that children who were not born British citizens here would have no right to abode and would not be immune from deportation. If a stateless child born here is to be sent away, it may well be sent or taken to a country whose law will give it no opportunity to acquire a nationality. It may well be sent to a country which provides far less facilities to stateless persons than does our own law. The United Kingdom, for example, will issue travel documents to stateless persons. Many states do not. So, in considering this amendment, we are considering not only the fate of children living as stateless persons in the United Kingdom, worrying though that is; we are considering the fate of children born here stateless who could be sent away and could remain stateless and devoid of important rights for the greater part of their lives, or indeed possibly for all their lives.
§ Under the existing provisions of Clause 1 some thousands of children will be born here every year who do not qualify at birth for British citizenship because neither their father nor their mother is a British citizen, nor settled in the United Kingdom. Probably most of these will acquire at birth the citizenship of another state. They will acquire it by descent from one or both parents. But there will be a small number—we cannot say how many; perhaps hundreds, perhaps thousands, perhaps less—who, as a result of the provisions of Clause 1, will be born here with no nationality at all. Where the parents themselves are stateless refugees or where the laws of the parents' states do not permit citizenship by descent in particular circumstances, children will be born stateless in the United Kingdom unless this amendment is passed.
§ We have heard much in the course of our debates of the considerations upon which the Home Office places value and, on the other hand, of the anxieties and rights of parents. I submit that we have not heard enough about the rights of the child. A new-born infant has done nothing to deserve having the fate of statelessness inflicted upon it at its birth. If we believe in human rights, as I venture to think we do, we have no justification whatever for imposing this burden on children born within our jurisdiction. To do so now for the 11 first time in our history accords neither with the spirit and intention of the United Nations convention nor with our own national traditions. I ask what good purpose the proposals of the Government in this field can claim to serve; what damage to the state, to our society and to our national life could there conceivably be in each year allowing a small number of children born here to parents from abroad to become British?
It may be claimed by the Government that the problem is remedied by Schedule 2 to the Bill. Paragraph 3 of that schedule follows to the letter the minimum requirements of Article 1 of the United Nations Convention on Reduction of Statelessness but it is worth while reminding the House of the opening words of Article 1. They read:
A contracting state shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted (a) at birth by operation of law "—
that was the position under jus soli—
or (b) on an application being lodged with the appropriate authority by or on behalf of the person concerned in a manner prescribed by the national law".
That is the approach of the Government. The article goes on to lay down for this latter process of application minimum conditions to which the national law must conform.
§ Paragraph 3 of Schedule 2 lays down conditions as to residence which conform to the letter of Article 1 (b) but which may possibly be rendered otiose by the new immigration rules which have yet to be laid and which are likely to prevent most of the children born stateless here in future from fulfilling these residence requirements. This would leave us with a complicated structure which would benefit hardly anyone and certainly not all the children involved. We think it would be far better to abide by our obligations under the convention by following Article 1(a) instead of Article 1(b) and ensuring that no child born here would be stateless. I ask which of us would want to be a parent of a child in the circumstances that I have envisaged as resulting from the Bill?
§ My Lords, there is one further matter which perhaps is more administrative than a matter of principle to which I would draw attention. What we propose would relieve the Home Office nationality division, already to be inundated with new work as a result of this Bill, first, of the task of processing the applications provided for in Schedule 2 for registration of stateless children when they reach the age of 10 and, secondly, of having to deal with the additional inquiries about such children that will follow unless the amendment is passed. In the sense that the amendment affects only a comparatively small number of children, it is a minor amendment, but it is a major amendment in terms of principle and I invite the House to support it. I beg to move.
§ Lord Boyd-Carpenter
My Lords, if I may, I would join with the noble and learned Lord opposite in welcoming the state of the Marshalled List and the indication which it gives of the response of my noble friend the Minister to a good many of our discussions at the Committee stage. As the noble and learned Lord has said, it indicates that my noble friend has listened with great care to a great deal of the argumentat 12 the somewhat lengthy Committee stage and, although he has not come forward with proposals that meet every point that was raised, he has made considerable advances as I understand it, and this not only reflects credit on my noble friend but much emphasises the value of this House as a revising Chamber.
On the specific amendment which the noble and learned Lord opposite has just moved, I am afraid that I do not find it possible to go the whole way with him. It would be idle to pretend that there are not, and will not be, problems of statelessness under this Bill if it becomes an Act; but, on the other hand, the amendment seems to me to go too far. The amendment is drafted in the alternative: there are three conditions which will confer British citizenship. It therefore would appear that the mere fact of being born in the United Kingdom and having no other nationality would automatically confer British nationality from birth.
Although I sympathise very much with what the noble and learned Lord has said, and with hard cases, it seems to me that he is going too far. I know that it can be said that one is taking an extreme case but extreme cases sometimes illustrate the fallacy of what appear on the face of it to be reasonable propositions. If the noble and learned Lord's amendment were put into the Bill it would be the case as I understand it that, if a child is born to a non-British mother of a non-British father in the transit lounge at Heathrow because pregnancy has developed (as it sometimes does during an air passage), the mere fact that the child was born at Heathrow would immediately, as from birth, confer British citizenship if the child would otherwise be stateless. It may be that it would go further. I bow to the noble and learned Lord's knowledge of the law but I believe that for a good many purposes a British aircraft in flight and a British ship at sea are treated as being part of the United Kingdom. It is not unknown—indeed, it is rather a horror story of the airlines—for a lady sometimes to embark on an air journey ignorant of the accelerating effects on pregnancy of air travel, with the result that the cabin crew have to operate, as they almost always do, with great skill in very difficult circumstances.
There are a number of such cases, but it seems to me to be pressing it a little hard that, regardless of what possibilities there may be of nationality being found for that child subsequently, the mere accident (as it would be in this case) of birth either at Heathrow or in an aircraft should automatically confer British citizenship from birth. I think that if we accept, as many of us do very hesitantly, the abandonment of the doctrine of jus soli, we should be making an unjustifiable exception in this particular case and should perhaps be favouring this particular small section of people as against other people who also would be happy to have British citizenship. Unless my noble friend has some very special reasons for accepting this proposition, I should like for my part to indicate some very considerable hesitation about it.
§ 3.20 p.m.
§ Lord Avebury
My Lords, I apologise for not having been here at the beginning of the speech of the noble and learned Lord, Lord Elwyn-Jones. I should like to support wholeheartedly the principle of his amendment.
13 May I impress upon the Government that, while we are grateful for the concessions that have been made, as has been said by the noble Lord, Lord Boyd-Carpenter, if the Government really want to demonstrate the worth of your Lordships' House they cannot do it better than by listening to the reasonable arguments that have been put both in Committee and now this afternoon in favour of reductions in the amount of statelessness which would otherwise be caused by this Bill.
I want to refer in particular to the case of the refugees which was dealt with by the noble and learned Lord and on which, if I may say so, the noble Lord, Lord Belstead, gave an answer in Committee that was less than adequate. He will no doubt recall that in answer to some points that I raised regarding refugees he pointed out to the Committee that once a person who applied for refugee status became settled, then a child would thereupon be entitled to registration under a later provision of the clause. The noble Lord, Lord Belstead, has also written to the acting director of the British section of Amnesty International, who had raised various points about the citizenship of the children of refugees resident in this country, saying that although refugees are subject to a time limit on their stay for the first four years of their residence here, at the end of this period they are normally allowed to remain permanently free of immigration control. Therefore, while the child born during that four year period would not be entitled to registration on birth, at the end of the period, when conditions on the stay of the parents were lifted, they could make the application for British citizenship.
If I may say so, the noble Lord, Lord Belstead, was a little disingenuous in making such a reply to the acting director of the British section of Amnesty International because as he knows perfectly well the process of applying for refugee status in the United Kingdom can be an extremely lengthy one. In fact, I am taking up two cases at the moment—one a Pakistani and the other a Bangladeshi—where no reply has been received from the Home Office after more than two years. If the noble Lord makes reference to his colleague in another place, Mr. Tim Raison, he will discover the names of these individuals.
I do not want to suggest that they are in any way exceptional. I believe that the process of vetting the applications for refugee status may be sometimes a fairly complex one. I do not believe it is so complex as to justify such a delay as I have mentioned with all the effects that it has on the lives of the families of those persons and, in particular, the citizenship of their children.
However, I am pointing out that if two of those cases have come to my notice, it is likely that there are many others which are unknown to Members of your Lordships' House or another place and that two years' wait is by no means exceptional. Therefore, it is not right to say, as the noble Lord, Lord Belstead, has done in the letter, that a person who becomes a refugee is subject to a time limit for the first four years of residence here. One has to add on to the four years during which the conditions are imposed the period before the person qualifies for refugee status. That may be as many as seven or even eight years before the parents become free of conditions. During the 14 whole of this period the child of the person who becomes a refugee in the end is stateless. Only at the end of that seven years can the parents apply for registration which in itself is going to be a lengthy process. Therefore, as I said when we were discussing this in Committee it may be that in many cases they will have to wait until the child has been here 10 years and qualify under the other provision where they have to demonstrate that the child has not been outside the United Kingdom for more than 90 days in any one year.
The noble Lord, Lord Boyd-Carpenter, dismisses this as a minor problem. I think that it may be more than that. I wonder whether the noble and learned Lord, Lord Elwyn-Jones, will agree with me that the United Nations Convention on Refugees also provides that a refugee will be treated not less favourably than the citizens of the country in which he resides which is a signatory of the convention. Therefore, if the refugee is not entitled to register his child as a British citizen until some years after the birth of that child, then he is in an inferior position to the citizen who can go and register the child or the person who is settled.
Therefore, I wonder whether the Government have properly studied this matter and whether the requirement that a refugee should wait until after the four years' qualifying period is not a violation of the convention. I should be interested to know whether the noble Lord, Lord Belstead, could tell us whether this matter has been submitted to the United Nations High Commissioner for Refugees and whether any comments from him have been obtained on the consistency of this clause with the convention.
It seems to me quite wrong in principle that legislation should be passed through either House which increases the volume of statelessness in the world. We are committed by our signature on the convention for the reduction of statelessness to do whatever we can to reduce the number of people who are stateless and there is a schedule in this Bill for that purpose. The schedule complies with the strict letter of our obligations under the convention. What the noble and learned Lord, Lord Elwyn-Jones, has suggested goes further than that. It makes provision in this Bill for the avoidance of unnecessary statelessness which will otherwise be incurred. I hope that the Government will see fit to accept this amendment.
§ Lord Davies of Leek
My Lords, briefly and not to weary the House, I am sure that many Members on both sides must have had correspondence from the National Association of Citizens' Advice Bureaux. I am also sure that the Government listens sometimes to the case of the Bureau. At the moment I must support wholeheartedly my noble and learned friend. The proposal to dilute the present unqualified right to citizenship by virtue of birth in this country contains a problem. I will speak for two more minutes and then I will finish. We have figures which show that even before the recession there was an 18 per cent. increase on the edge of Greater London of people of foreign origin—and coloured particularly—who were worried about the rights of citizenship and the rights of their children. The figures for Greater London show an increase of 46 per cent.
This is indicative of the worry among many of these 15 people. Sometimes they did not ask to come here. Do not let us forget that at the end of the war we were delighted with this labour in the hospitals, on the buses and the railways to rehabilitate our country. Without trying to make a demonstrative party point, I sincerely believe that this piece of legislation, if left like this, exacerbates the racial problems that we are likely to have. Consequently, I hope depth of thought will be given to this and that the plea from this side of the House will be reiterated in Government rethinking.
§ Lord Molloy
My Lords, I believe that it is fair to say that people of all political persuasions and of all religious sects throughout this island are gravely concerned apropos this proposed legislation. In short, many people think that it is an abomination. This noble House has a great opportunity to take some of the evil and some of the bitterness out of it. In my support of the submission of my noble and learned friend I believe that his suggestions go a long way in making that very valid contribution. Listening carefully to the submission of the noble Lord, Lord Boyd-Carpenter, may I remind him and other noble Lords that there are very many people who have come to this country by accident, so to speak. They are sometimes refugees from other lands. Their names are now revered and honoured in our island history. If this particular piece of legislation had existed then they would never have been British and would probably never have reached the status which they have achieved in both the sciences and the arts, and of which all of us as Britons are proud. I ask your Lordships' House to take that into consideration.
I believe that if there is one Parliament in this world which can bring about the ideal for which we all strive and work, it is this British Parliament—both the other place and your Lordships' House. This Bill will take us back and deny to us the achievement in which we all believe—that of making progress towards the great ideal of recognising the commonality of all humanity.
The Lord Bishop of Rochester
My Lords, as the mover of an amendment to this clause in Committee, I still regret very much the rejection of the attempt to retain the principle of jus soli, which was so long the traditional policy of this country. I believe it is a grievous change which has done more than anything else to shake the confidence of many people who have now been long-resident in this country. I join with other noble Lords in welcoming the amendment from the noble and learned Lord, Lord Elwyn-Jones, because many of us have a continuing concern for children born on British soil who might be stateless unless this clause is amended in the way that has been proposed.
The noble and learned Lord has described most graphically the terrible liability of statelessness and the special difficulties facing those children who might be born without any nationality. Clergy ministers of all denominations who have the pastoral care of families of all kinds and of all nationalities in their care continue to be greatly concerned about the uncertainty and apprehension that has been caused to many people on finding their security, and I believe their happiness, 16 gravely threatened by this Bill. I hope very much that the Government will think again about the amendment proposed by the noble and learned Lord, Lord Elwyn-Jones, and will accept it.
§ Lord Renton
My Lords, I believe it is agreed among us all that our country probably has as good a record as any country in the world with regard to overcoming the condition of statelessness. One should bear in mind however that it is not always the desire of stateless people, although we may wish to help them and they may wish us to help them to get rid of their statelessness, to become at present citizens of the United Kingdom and Colonies. There are, for example, refugees from Russia; I am thinking in particular of the Ukrainians, who prefer to reserve their position in the hope—perhaps a forlorn hope—that one day they might be able to regain a Russian nationality which they could accept and on terms of freedom. But this amendment, with regard to people born after commencement of the Act, when it becomes an Act, would grant automatically absolute British citizenship, not merely as a right but even when that citizenship had not been sought.
With great respect to the noble and learned Lord, Lord Elwyn-Jones, whose work on this Bill has been of the most constructive kind, and one knows the strong feelings he has about it, I believe, as my noble friend Lord Boyd-Carpenter has said, that that is going too far. Also, I wonder if it is consistent with what we are providing in Clause 11, which deals with what is to happen at commencement. I may say in passing that I have an amendment down on the Marshalled List which would have the effect of making Clause 11 the first clause in the Bill. I was advised that it would be taken first on the Marshalled List.
§ Lord Renton
At commencement indeed, and I shall deploy the argument for that fairly fully when we come to that amendment. Meanwhile, I would draw the attention of noble Lords to Clause 11(2) where we deal with people who are stateless at commencement. We do not give them an automatic right to become the new type of British citizen; we have imposed certain conditions, and it does not seem to me to be consistent with that that we should now accept the amendment moved by the noble and learned Lord, Lord Elwyn-Jones.
I only wish to mention one other point, which has already been touched on by the right reverend Prelate the Lord Bishop of Rochester. Rightly or wrongly—and I believe most of us believe rightly, although some of us feel wrongly—we are abandoning as the basic principle of this Bill jus soli and we are introducing jus sanguinis. It seems to me that the amendment proposed by the noble and learned Lord, Lord Elwyn-Jones, is inconsistent with that new principle. Therefore, for various reasons I join with my noble friend Lord Boyd-Carpenter in saying that this amendment should be resisted.
§ 3.37 p.m.
§ Lord Shinwell
My Lords, despite the forensic ability of the noble Lord, Lord Boyd-Carpenter, and 17 the similarly enhanced forensic ability of the noble and learned Lord, Lord Renton, I must express difficulty in understanding the alleged validity of their arguments. As for my noble friend Lord Davies of Leek, I want to make it quite clear, as he plainly did, that this is no party affair. Of course it is not. To me it is purely and simply a matter of logic. The reason I say that is that I have the feeling, the very strong feeling, that if the people of this country were asked they would say that if a child was born in this country he would have the advantage (and I myself would regard it as an advantage) of being described as a British citizen. I do not have the least doubt that there would be almost unanimity in regard to that belief. That is why I say that this is a logical issue. If a child is born in this country it is not the child's fault, or do the noble and learned Lords venture to assert that it is the fault of the child and therefore that the child must be bundled about and confused in later life as to its status?
I have the highest respect for the noble Lord, Lord Boyd-Carpenter, and also both my colleagues in another place—not that that was a particular advantage and was purely an accident. The noble Lord, Lord Boyd-Carpenter, said—and this seemed to be his primary isolated argument and one which only appeared to have some validity—that my noble friend the ex-Lord Chancellor was going too far. But in which direction was he supposed to be going too far? This was apparently only because he was exceeding the deliberations of the noble Lord, Lord Boyd-Carpenter. In no other respect did he proceed further. I would regard his submissions as being beyond argument. I cannot understand it.
I think it must be admitted that a child who is accidentally or inadvertently born in this country becomes automatically a British citizen and there is no need to ask whether it is entitled to do so. A child placed in that situation should not be regarded as other than a British citizen, unless that citizenship is regarded by some as a disadvantage. Indeed, some of the arguments put against my noble and learned friend Lord Elwyn-Jones seem to suggest that British citizenship could be regarded not only as a disadvantage but as a matter of disrepute. I do not regard it in that light at all.
I will admit, as indeed was suggested by the two noble Lords opposite, that some confusion might arise at some time or other over the question of registration many years afterwards, and some confusion could emerge as to the status of the child concerned. In order to support their arguments, the noble Lord, Lord Boyd-Carpenter—or it may have been the noble Lord, Lord Renton—referred to a child born aboard a ship. If a child is born aboard a British ship, what is it to be regarded as? Is it to be called a refugee or to be stateless? If a child is born aboard a British ship I would regard such a child as being a British citizen. What else could it be? Could anyone suggest what other status or nationality could be given to that child? A child born on a British ship would be referred to in the log: let that not be forgotten. I can imagine the second officer, or the officer whose duty it is to deal with such matters, inserting in the log an entry: "A child has been born on this vessel ". How are we to regard it, except as a British citizen born on a British vessel? It seems to me we ought to forget 18 the forensic arguments about the possibility, and even the probability, of some confusion arising in later years. Let us consider this from a standpoint of logic. Here is a situation where a child is born in this country and that child is regarded automatically as a British citizen. What harm can that do?
My final point is this. It has been suggested that this would apply only to a very few and that it is not expected to apply to hundreds or thousands. Surely that is an argument in support of accepting the amend-ment. If a few more people in future are to be re-garded as British citizens, why should we object? I must confess that this may be the first time—and I say this with diffidence, certainly with no arrogance and meaning no offence of any kind—that I have ever supported a right reverend Prelate. I must confess, having found myself in such an august and sacred association, that I would expect my argument to be accepted not only because of its validity but because it is backed by that of a right reverend Prelate.
§ Baroness Elles
My Lords, before embarking on a short argument about the question of statelessness I should first like to thank the Government most warmly for introducing into the Bill even at this late stage measures to remove the very large number of cases which could have resulted in statelessness. Secondly, I should like to put a question to my noble friend the Minister so that while I am speaking on other aspects of this amendment he could possibly be finding out the answer to my question. My question is this: where a child is born in this country who would be stateless, could a parent apply under Clause 3(1) for registration as a minor at the discretion of the Secretary of State, apart from subsection (4) of Clause 1? Supposing the child was born stateless and had been here for perhaps six months or a year, would a parent be able to apply to the Secretary of State for registration as a British citizen? Clearly, if that were possible under Clause 3(1), it would remove the necessity for the amendment proposed by the noble and learned Lord.
§ Lord Avebury
My Lords, any person could apply but there would be the presumption against the Secretary of State accepting it if this amendment was not accepted.
§ Baroness Elles
My Lords, I have put the question to my noble friend the Minister and I hope that he will be able to give me a reply. The fact that there is a possibility under subsection (4) may be regarded as exclusive, but on the other hand it may not. Therefore, I would be grateful for a reply to that matter.
There are one or two other matters which I think should be mentioned. The noble Lord, Lord Avebury, referred to the Convention on the Status of Refugees and drew attention to the fact that under certain provisions of the convention refugees should be treated in the same way as nationals. These provisions have been very carefully drawn up in the United Nations and there is absolutely no reference made to the matter of nationality. The only reference otherwise as to similarity of treatment between refugees and others is to aliens generally. So I would assure your Lordships that as regards that convention, if this amendment is not passed, there is no question that the United Kingdom 19 is not fulfilling its obligations under that convention, having ratified it.
Secondly, regarding the Convention on the Reduction of Statelessness, the provisions set out in subsection (4) more than generously fulfil the undertakings given by any Government which has ratified that convention. There are many member states of the European Community who have ratified that convention and whose provisions are not nearly as generous as those which are set out in subsection (4). I admit that that is not necessarily a good reason for not doing better, but certainly, in comparing the United Kingdom provisions as set out in this Bill, they are more generous than those of almost any other member state.
I think my main objection to this amendment is that the principle of this Bill is nexus, the connection with the United Kingdom. I think everybody in this House has admitted that it is perfectly possible for a child to be born in this country and to leave this country after a week or 10 days and never to return to it and to have no connection with this country whatsoever. Surely the whole principle of this Bill has been to try to create a nationality which ties a person to this country. Although I know your Lordships will not want a long debate on international legal obligations, there is nevertheless the question of diplomatic protection, the rights of a national when abroad and the connection of that national with a Government. Those noble Lords who have dealt with such matters—I am sure none more than the noble and learned Lord opposite—will know the complexities of these international law cases where a nexus is one of the elements. They will know that if somebody suddenly finds that, by mistake, he happens to have citizenship of any state, whether it be of Britain, of Guatemala, of Liechtenstein or anywhere else—and the noble and learned Lord will know the case to which I am referring—that person may find himself at a grave disadvantage. So I believe that it is neither helpful nor particularly humanitarian to ascribe a nationality to a person who has no connection whatsoever with any territory, and in this case we are talking of the United Kingdom.
So it is on those grounds that I would object to the amendment, but I should be grateful, in returning to the question that I put to my noble friend, if at a later stage when he comes to reply he could comment on the question of whether, in any specific case where a child would be born stateless in this country, a parent could in special circumstances apply for registration under Clause 3(1) of this Bill.
§ Lord Gifford
My Lords, when this Bill becomes law the people who will have to deal with the hard cases, which are going to have to be looked at under it, are the advice agencies, the lawyers and the Members of Parliament to whom cases will be brought. Some of us already have experience of dealing with hard cases in this branch of the law under the Immigration Act 1971. Again and again under that Act cases have come up of manifest unfairness where one asks oneself, "Why didn't they do something about it?" or "Why didn't we do something about it while the Bill was passing through Parliament?" They are not matters which arouse any great question of policy, and this amendment touches upon that kind of case.
20 As I think everyone has recognised, there will be cases of stateless children being born in this country because of the abandonment of the jus soli principle. Many of them will arise because of the different nationality laws of other countries. There are many countries which do not allow for the passing of citizenship through the female line. We are only getting around to that by this Bill. I believe I am right in saying that Italy is such a country. I am sure that most of the Roman Catholic countries of Europe and Latin America and most of the Muslim countries of the Middle East have similar restrictions on the passing of citizenship. That is one area where a visiting woman may have a child in this country and may, in due course, if she wishes to leave before the 10-year period is up, have a child who has no citizenship at all. It is fanciful to suggest that there will be very many such cases. I am seeking to say that there will be some of them. The image which the noble Lord, Lord Boyd-Carpenter, put before the House of us having to take responsibility for the Heathrow and the aircraft babies is carrying fancy into the realms of the impossible—
§ Lord Gifford
It happens very occasionally that babies are born at Heathrow, but the number of times when it will happen in one of the rare cases of stateless children is once a decade or once a century. Probably 99.99 per cent. of the citizens of the world are able to transmit their citizenship to their children whether they are born in one country or another, because most countries have some form of jus sanguinis principle which allows for the transmission of citizenship. We are talking about the very rare exceptions of the people who will slip through the net.
Up to now we have had the jus soli principle, which allows for anyone born in this country to be a British citizen. The Committee of this House voted against that, but it is in no sense inconsistent with that vote that we should pass this amendment. By its other vote, the Committee said that, in general, children born to non-British parents visiting this country should take the citizenship of their parents and not British citizenship. That was a decision which the Committee took. But what those who have moved this amendment are imploring your Lordships to do is to recognise that there is virtue in the jus soli principle purely as a safety net; that there is virtue enshrined in the main article of the United Nations convention, which says in plain terms:A contracting state shall grant its nationality to a person born in its territory who would otherwise be stateless".Of course, I accept that in the working out of the mandatory provisions of the convention there is a certain latitude allowed to countries, which is the latitude that the Government have taken in the later schedules. But we should go further and the resolution which this House can make this afternoon is to say, "Let there be no statelessness for a child born in this country as a result of the passage of this Bill".
§ 3.56 p.m.
§ Lord Elystan-Morgan
My Lords, the arguments that have been articulated on behalf of the amendment 21 are strong and compelling. They have been delivered with great vigour and great clarity by my noble and learned friend Lord Elwyn-Jones, by the right reverend Prelate and by many others, and I am sure that they would not be improved in any way by repetition. But I should like very briefly to add to those arguments and perhaps seek to answer one or two points that have been made by noble Lords opposite.
Statelessness is not a condition that exists for a period in the lives of most stateless children, but is something that is more than likely to last for ever. Once the condition is, as it were, allowed to develop in early years then it becomes almost endemic and extremely difficult to cure. We have as a country, as we have heard, a legal obligation under the United Nations convention of 1961 and under the legislation of 1964 that followed upon it. In that convention, there is an option either to act by way of acknowledgment of the condition at birth, and to cure it there and then, or to cure it by later process.
The first cure referred to in the convention is the cure of granting citizenship at birth. It is the cleanest, the simplest and the most direct cure and it avoids that fog of miserable uncertainty that can enshroud the life of the person for a very long time and perhaps for ever thereafter. We have, of course, a moral obligation as well—a moral obligation that has been accepted by Britain for a very long time; a moral obligation that underlies the efforts of the United Nations and many other international bodies. But it is a moral obligation that is greater now than ever before—and this is the point that I seek to make—because it is the very fact of having removed that bedrock foundation of the jus soli that creates the added dimension of the old historic problem.
Of course, the Government accept the moral and legal obligation. They have come a very long way in the provisions of Schedule 2. But Schedule 2 will deal only with some cases. What an irony, if one were able to computerise, as it were, the number of cases involved! They may be merely hundreds. They may be a few thousands. Would it give any comfort at all—this is the answer to the points genuinely made by the noble Lord, Lord Boyd-Carpenter, and the noble Lord, Lord Renton—if this House knew that the numbers involved at the moment were, let us say, 650, that Schedule 2 would accommodate, let us say, 490 of those, and that therefore 160 remained? Would it give any comfort to any Member of this House to feel that we had clawed back that miserable number of 160? Is that what this House is about? That is the difference between acceptance of this amendment and reliance upon the, to some extent, alternative provisions relating to other matters in the Bill.
There is one point which has not yet been raised—the vote which was carried in the European Parliament on 19th September of this year in relation to this matter. A draft resolution was prepared by the Legal Affairs Committee of the European Parliament as early as 17th December of last year and a motion for resolution was drawn up, the material parts of which are these:The European Parliament regrets that since there are differences between Member States' nationality laws, there would be the risk that some children might be born stateless as a result 22 of these changes and that nationals of Member States may consequently be reluctant to exercise their rights of freedom of movement and freedom of establishment and therefore considers it highly desirable that British nationality should be made available to the two categories of people referred to above, at least when they would otherwise possibly be stateless".It then instructs its president to forward this resolution and the report relating thereto to the Council, the Commission and the member states.
The force of the amendment lies not in logic, in the sense that one is able by some mathematical process to show that this is a total necessity. It lies in compassion. It lies in humanitarianism. I submit that the arguments put forward by the noble Lord, Lord Renton, do not do him justice in this connection. He says that there would be an anomaly if this amendment were to be accepted because it does not deal with the situation of a person already living who is stateless. All I can say is that in so far as Clause 1 is concerned it purports to deal with the problem at the earliest possible moment; namely, the exact moment of birth. It may well be that a wider amendment is justified. If Her Majesty's Government were prepared to accept this amendment, I am sure they would not cavil at a slight and necessary extension in relation to the wider principle.
The noble Lord, Lord Boyd-Carpenter, says this amendment must be rejected because of the wholly fortuitous and accidental nature of some of these cases. I hope I do his argument justice in paraphrasing it so shortly. That is true in some cases, although one must bear in mind that the problem we are dealing with mainly is not any question of the pilgrimage of the heavily pregnant to Heathrow or elsewhere. Those cases, I apprehend, will be very few. In the main they will be cases of people who thought they were legitimately settled in the United Kingdom but who after many, many years will find, perhaps due to certain information having been withheld from them by their parents or by others, that they have unwittingly made a representation that is inaccurate and that therefore the curse of statelessness visits not only them but their children as well. Does it matter that the situation which gives rise to such a condition is an accidental one?
In Clause 1 the Government have generously accommodated the foundling. Should not exactly the same yardstick of measure be applied to the stateless person? It may well be that British nationality is not the most ideal nationality for a particular child in a particular case, but if you are an abandoned castaway does it matter what the port of registry of the ship that picks you up is? This is an amendment which makes the best of a miserable situation, a situation which affects probably a small number of people—so small in number as not to affect the resources of Britain to any deleterious degree. But that small band cries out for just and humane treatment, and I still have confidence that Ministers opposite are still prepared at this late hour in the progress of the Bill to give this matter their urgent reconsideration.
§ 4.7 p.m.
§ Lord Belstead
My Lords, I am most grateful to the noble and learned Lord, Lord Elwyn-Jones, for his generous remarks at the beginning of his speech intro- 23 ducing this amendment about Government amendments on the Marshalled List which seek to make certain changes to the drafting of the Bill in response to points which were put by your Lordships during the Committee stage. I should like to join the noble and learned Lord in interpreting that as proving the value of your Lordships' House as a revising Chamber. It shows, too, that my right honourable friend the Secretary of State and also my honourable friend the Minister of State, Mr. Raison, are prepared to try to listen to what is said so effectively in your Lordships' House. May I also say that we on this side of the House welcome the noble Lord, Lord Elystan-Morgan, speaking I think for the first time from the Front Bench opposite. It is always a pleasure to listen to the noble Lord. If the Report stage of this Bill is anything like the Committee stage, it is a pleasure which will be repeated many times.
Let me make one general point in reply to this amendment. For the first time under the Bill the vast majority of people in this country will be British citizens, an expression which it has not been possible technically to use before, knowing that that status means that they have without question for the first time the right of abode in this country. I am sure your Lordships will forgive me if I say it was interesting that after very prolonged proceedings in another place one of the severest critics of the Bill, Mr. Lyon, the honourable Member for York, was generous enough to say that although there were aspects of the Bill which he still most certainly opposed, this particular point should be taken on board and should be made known. I join therefore with my noble friend Lord Renton in questioning the wisdom of granting this new British citizenship automatically to anybody who happens to be born here. I say that bearing in mind the views which have been expressed by the noble Lord, Lord Elystan-Morgan, in his speech, and bearing in mind also that the contrary view has been taken by the right reverend Prelate the Bishop of Rochester who, by a miracle which has been wrought this afternoon, is going to see eye to eye on this matter with the noble Lord, Lord Shinwell.
But that is not the view which your Lordships' House took when the House was in Committee. After a debate which lasted the whole of the first Committee day's afternoon your Lordships took a conscious decision by a quite considerable majority, that under the present circumstances in this country —a small island, very heavily populated in a world where travel is very much easier, that the principle of jus soli, to which I know so many people attach great importance, was something which should not be followed in the drafting of this Bill. I concede at once that if your Lordships' House and Parliament take that view, then of course like so many other countries in the world we must face the problem of children who are born here and who do not therefore qualify for our citizenship. As I hope to show, we are endeavouring to do this, I think more generously and more effectively than many other countries.
I think it is a pity that this amendment happens to be the first on the Marshalled List. Perhaps if we had had the opportunity to get a little further into the Bill and into the amendments it might have 24 become apparent that many of the reservations which have been voiced by your Lordships in the last half hour or so have no foundation, because I should like to make it clear at the outset that statelessness is a situation which the Government wish to avoid for any child and as a consequence Clause 1 sets out provisions for the acquisition of British citizenship which are in fact more generous than in most other European countries. Also Schedule 2 has provisions for preventing statelessness which are more generous than the United Nations Convention on the Reduction of Statelessness, which, as the noble and learned Lord, Lord Elwyn-Jones, reminded us, this country was one of the first to ratify.
In the first place Clause 1 provides that a child shall be a British citizen if either the father or the mother is a British citizen or is simply settled in the United Kingdom. That latter provision alone provides an avenue to citizenship which is not open to citizenship in many other European countries, where under the jus sanguinis method of transmitting citizenship it can only be directly transmitted if a parent is already a citizen. But if a child is born here and is stateless there are provisions in the Bill which will enable that child to become a citizen by other means. There is Clause 1(3) which entitles a child to become a citizen of this country if, after the child has been born, either the father or the mother becomes a citizen of this country. I think it shows that we have taken the warnings uttered by the noble Lord, Lord Elystan-Morgan, about the potential tragedy of a child who may be born here who thought that he or she was a citizen and never bothered to check up and then, many years later (which I think was the expression used by the noble Lord) suddenly found to his or her horror that he or she was not a citizen at all. We have taken that seriously by putting Clause 1(4) into the Bill whereby, after the first 10 years, there is an absolute entitlement for a child to become a British citizen having lived here continuously.
Then, of course, there is Clause 3(1) about which my noble friend Lady Elles asked me a direct question, namely, could a child who would otherwise be stateless be registered under the general discretion of the Home Secretary under Clause 3(1)? The answer is that a parent could apply in those circumstances under Clause 3(1) but registration would be unlikely to be effected unless the child's future certainly lay in this country or was connected closely with this country. Normally it is only in exceptional cases that the children of non-citizens would be registered and that is one of the reasons why we put Clause 1(4) into the Bill.
Having tried to remind your Lordships, perhaps at too great length, of those various avenues to citizenship, let me face absolutely honestly the situation of the child who is born here and none the less finds that he or she is stateless and still has no claim on our citizenship. That brings us to Schedule 2, under paragraph 3 of which such a child will have an entitlement to citizenship if, at the time of application, he or she is between the ages of 10 and 22 and has been here for five years, excluding absences of 15 months. Ten to 22, of course, dovetails in with Clause 1(4). Those requirements are much easier to meet than the conditions which are recommended in the United Nations Convention on the Reduction of Statelessness, which lays down a 25 much narrower age limit for application. It recommends that the condition should be that you do not apply until you are 18 years old and stipulates that the person concerned shall not have committed any offences, which is something that we do not say anything about in the Bill.
Before I finish there is one very important point which has been mentioned by several noble Lords; I think the noble Lord, Lord Avebury, mentioned it first. That is the question of refugees. Of course, my noble friend Lady Elles was absolutely right in saying that this amendment has nothing to do with refugees; people who have a justifiable fear of persecution if they return to their home country. Refugees are normally subject to conditions of stay for four years, and after that time they become settled, and under Clause 1(3) the children of refugees will then be entitled to be British citizens under the Bill. The noble Lord suggested that refugees were being treated in this country in a worse way than other people as regards being allowed to stay after four years.
§ Lord Avebury
My Lords, not as being allowed to stay, but as having the right to register their children as British citizens.
§ Lord Belstead
If I may say so, my Lords, I think that depends upon a four-year period here. Four years is the normal period for people admitted to work here as well as staying here as a refugee before being granted settled status and that avenue into citizenship, and I do not think that the distinction that the noble Lord, Lord Avebury, made in that particular respect is a valid one.
§ Lord Avebury
My Lords, the noble Lord has left out the most important part of my argument, which is that a refugee does not begin to qualify for the four-year period until some time after his arrival in the United Kingdom. If he comes here from Pakistan or Argentina or El Salvador it takes some period, which as I pointed out may be over two years (as in two cases that we are dealing with at present with the Home Office), for the person to be accepted by the noble Lord's department as qualifying for refugee status. Therefore, the period is not four years, as he stated in the letter that I quoted, but sometimes it may be more than six years or even seven or eight.
§ Lord Belstead
My Lords, I am not quite sure that the mathematics which the noble Lord is throwing at me works out—uncharacteristically for the noble Lord as a mathematical expert—for he has spoken first of two years and then adds four years on to his argument.
§ Lord Belstead
Oh no, my Lords; I have already given way to the noble Lord. I would remind him that lie also charged the Government that a view might be taken by the United Nations High Commissioner on Refugees. My understanding is that no contrary view is taken by the United Nations High Commissioner on Refugees so far as this matter is concerned. It is true that it takes time when a refugee comes to this country in order to get the processes right. It is a 26 fact that my right honourable friend and his department are enormously overburdened in this respect, and it does not change the fact that this Bill continues to buttress the tradition which I think nobody in your Lordships' House would ever wish to see changed, that if someone is truly a refugee he can find a place in this country.
The difference between the provisions in this Bill and the effect of this amendment is that the amendment would confer citizenship on a stateless child automatically and immediately, regardless of the status of the parents and regardless of the family's connections with, or indeed intentions about staying in, the United Kingdom. I really do think it is unwise to say that a stateless child born here should have citizenship conferred automatically and immediately even if the child is then taken away from the United Kingdom and never returns. My noble friend Lord Boyd-Carpenter counselled that a little caution would be wise in this respect. It is precisely because the United Nations convention took the same view that the convention laid down some conditions before the stateless child ought to be accorded citizenship. Our conditions in this Bill are more generous than those recommended by the convention. Our avenues into citizenship are more frequent and more realistic than are those to be found in many other countries, and I am very glad that these things are so. But the Bill does not simply distribute British citizenship indiscriminately, as the amendment would have us do. It is on that ground that I ask your Lordships not to agree to this amendment.
§ Lord Elwyn-Jones
My Lords, I am disappointed, as I think many in the House will be. by the noble Lord's reply. The fact is that the amendment seeks to maintain the status quo. It is not asking for something new; it is asking for us to carry on in our attitude towards statelessness as the present law enables us to do. It may well be that we treat the problem better than most other countries, but the effect of Clause 1 as it stands is retrograde so far as this country is concerned. At the very time when the need to tackle statelessness and to help the stateless child is more imperative than ever, it is a backward move, it is a retrograde move that is proposed.
The noble Lord suggested that this matter had already been discussed and outvoted in Committee. We have never discussed an amendment within the limited terms of this amendment; this is the first time we do so. We are concerned with a very small number of children. There is one aspect of the matter which I should like the noble Lord, if he will bear with me, to deal with; namely, the effect of the immigration rules which are to be introduced. Will he give an undertaking that under the immigration rules no stateless child will be deported from this country? If he gives that undertaking it will affect certainly my point of view and my attitude towards this matter.
With regard to the 10-year provision, of course it means that a period of uncertainty remains for the stateless child. And, as regards the four-year provision, that is wholly discretionary. I venture to think that, if the House thinks first and last of the child in regard to this matter—the stateless child, a tiny number of them —I have little doubt that the compassion of this House 27 will lead Members into the Division Lobby with my noble friends and myself.
§ 4.23 p.m.
§ On question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 99; Not-Contents, 126.28
|DIVISION NO 1|
|Airedale, L.||Jeger, B.|
|Amherst, E.||Jenkins of Putney, L.|
|Amulree, L.||John-Mackie, L.|
|Ardwick, L.||Kaldor, L.|
|Avebury, L.||Kilmarnock, L.|
|Aylestone, L.||Leatherland, L.|
|Bacon, B.||Listowel, E.|
|Banks, L.||Llewelyn-Davies of Hastoe, B. [Teller.]|
|Birk, B.||Lloyd of Hampstead, L.|
|Bishopston, L.||London, Bp.|
|Blease, L.||Lovell-Davis, L.|
|Blyton, L.||McCarthy, L.|
|Briginshaw, L.||McGregor of Durris, L.|
|Brockway, L.||Maybray-King, L.|
|Brooks of Tremorfa, L.||Mayhew, L.|
|Bruce of Donington, L.||Meston, L.|
|Byers, L.||Molloy, L.|
|Chelmsford, Bp.||Morris, L.|
|Chitnis, L.||Noel-Baker, L.|
|Clancarty, E.||Oram, L.|
|Cledwyn of Penrhos, L.||Parry, L.|
|Collison, L.||Peart, L.|
|Cooper of Stockton Heath, L.||Pitt of Hampstead, L.|
|Cudlipp, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Davies of Leek, L.||Porritt, L.|
|Davies of Penrhys, L.||Redcliffe-Maud, L.|
|Donaldson of Kingsbridge, L.||Rhodes, L.|
|Dowding, L.||Roberthall, L.|
|Elwyn-Jones, L.||Rochester, Bp.|
|Elystan-Morgan, L.||Rochester, L.|
|Evans of Claughton, L.||Ross of Marnock, L.|
|Fisher of Rednal, B.||Sainsbury, L.|
|Fulton, L.||Salmon, L.|
|Gaitskell, B.||Shinwell, L.|
|Gifford, L.||Stamp, L.|
|Gladwyn, L.||Stewart of Alvechurch, B.|
|Glenamara, L.||Stewart of Fulham, L.|
|Gore-Booth, L.||Stone, L.|
|Guildford, Bp.||Tanlaw, L.|
|Hale, L.||Taylor of Gryfe, L.|
|Hampton, L.||Taylor of Mansfield, L.|
|Hanworth, V.||Underhill, L.|
|Hayter, L.||Wade, L.|
|Houghton of Sowerby, L.||Wallace of Coslany, L.|
|Howie of Troon, L.||Wells-Pestell, L.|
|Hunt, L.||Willis, L.|
|Ilchester, E.||Wilson of Radcliffe, L.|
|Jacques, L.||Wootton of Abinger, B.|
|Airey of Abingdon, B.||Campbell of Croy, L.|
|Alexander of Tunis, E.||Chelwood, L.|
|Alport, L.||Clitheroe, L.|
|Ampthill, L.||Clwyd, L.|
|Avon, E.||Cockfield, L.|
|Beloff, L.||Coleraine, L.|
|Belstead, L.||Colville of Culross, V.|
|Boardman, L.||Cork and Orrery, E.|
|Boyd-Carpenter, L.||Cottesloe, L.|
|Campbell of Alloway, L.||Cowley, E.|
|Craigton, L.||Mancroft, L.|
|Crathorne, L.||Mansfield, E.|
|Croft, L.||Margadale, L.|
|Cromartie, E.||Marley, L.|
|Cullen of Ashbourne, L.||Mersey, V.|
|Daventry, V.||Milverton, L.|
|Davidson, V.||Monk Bretton, L.|
|De Freyne, L.||Moyne, L.|
|Denham, L. [Teller.]||Murton of Lindisfarne, L.|
|Digby, L.||Newall, L.|
|Dilhorne, V.||Northchurch, B.|
|Drumalbyn, L.||Nugent of Guildford, L.|
|Effingham, E.||Onslow, E.|
|Ellenborough, L.||Orkney, E.|
|Elles, B.||Orr-Ewing, L.|
|Elliot of Harwood, B.||Peel, E.|
|Elton, L.||Penrhyn, L.|
|Exeter, M.||Perth, E.|
|Faithfull, B.||Portland, D.|
|Ferrier, L.||Rawlinson of Ewell, L.|
|Forester, L.||Redmayne, L.|
|Fortescue, E.||Renton, L.|
|Gage, V.||Robbins, L.|
|Gardner of Parkes, B.||Rochdale, V.|
|Geddes, L.||Romney, E.|
|Gisborough, L.||St.Aldwyn, E.|
|Gormanston, V.||Sandford, L.|
|Gridley, L.||Sandys, L. [Teller.]|
|Grimston of Westbury, L.||Sharples, B.|
|Hailsham of Saint Marylebone, L.||Skelmersdale, L.|
|Harvington, L.||Stanley of Alderley, L.|
|Hawke, L.||Strathclyde, L.|
|Henley, L.||Strathspey, L.|
|Hives, L.||Swansea, L.|
|Hornsby-Smith, B.||Swinfen, L.|
|Hylton-Foster, B.||Teviot, L.|
|Killearn, L.||Thomas of Swynnerton, L.|
|Kilmany, L.||Thorneycroft, L.|
|Kinloss, Ly.||Tranmire, L.|
|Kinross, L.||Trefgarne, L.|
|Kitchener, E.||Trenchard, V.|
|Lane-Fox, B.||Tweedsmuir, L.|
|Lindsey and Abingdon, E.||Vaux of Harrowden, L.|
|Lloyd, L.||Vickers, B.|
|Long, V.||Vivian, L.|
|Loudoun, C.||Wakefield of Kendal, L.|
|Lucas of Chilworth, L.||Waldegrave, E.|
|Luke, L.||Ward of Witley, L.|
|Lyell, L.||Westbury, L.|
|McAlpine of Moffat, L.||Willoughby de Broke, L.|
|McFadzean, L.||Wolverton, L.|
|Mackay of Clashfern, L.||Young, B.|
|Macleod of Borve, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ The Deputy Speaker (Lord Airedale)
My Lords, in calling Amendment No. 2 I should say that if Amendment No. 2 were to be agreed to I could not call Amendment No. 3.
§ 4.34 p.m.
§ Lord Pitt of Hampstead moved Amendment No. 2:
Page 2, leave out lines 13 to 16 and insert—
("seven years, to be registered as such a citizen if the Secretary of State is satisfied that the number of days on which that person was absent from the United Kingdom in the first seven years of his life does not exceed—
§ The noble Lord said: My Lords, I beg to move Amendment No. 2. Your Lordships will remember that in the Committee stage I moved an amendment to insert "five" instead of "10". I based that amend- 29 ment on the fact that children go to school at the age of five years and I wanted the question of their citizenship decided before they actually went to school. From the answer which I received from the Minister it was quite obvious to me that there was no chance of getting "five". This evening I am trying to get seven". The value of "seven" is that at the age of seven years children go to junior school, and from my point of view that age is more important than five years because although teachers do not take children in infant schools abroad they often take children from junior schools abroad. I know that to be so because your Lordships will remember that I was for 16 years in County Hall and involved with the education service of London. I have been a governor of many schools and a manager of a lot of primary schools. I know that the question of children being taken abroad by their teachers is one that we must bear in mind.
§ If a class is being taken abroad and in it there is a child whose citizenship has not yet been determined that child will be put in a very difficult position. I know that those concerned will obtain a sheet of paper which will allow them to take the child abroad, but automatically the situation as between that child and the other children will become obvious. Those of your Lordships who know how children behave towards each other will know that automatically that child will have difficulties because the other children will know that he or she is different and he or she will be teased because he or she is different. I cannot believe that the Government can be so firmly rooted to 10 years that they will not accept this important point. If we accept the age of seven years it means that the matter is settled before the child goes to a junior school and the likelihood of a teacher having problems over trying to take his class out of the country with one or two children whose status has not been satisfactorily determined would not arise. Therefore, I hope that the Government will accept that particular part of the amendment.
§ Of course there is another part of the amendment. Your Lordships will remember that I also raised the question of the 90 days and I begged that we should accept the average of 90 days—which is what I am doing here—but in fact not insist on 90 being the period for each year. The Minister—and I am not sure whether it was the Minister here or the Minister in the other place; in fact I think it was the Minister in the other place—indicated that by stringing out two 90s they could get 180, and that explains my 180. The figure of 180 also has the value that it is less than half a year. It is only just less than half a year—in fact it is five days less—but it means that the child has spent more than half that year in the country. I am asking that, in view of the fact that it is sometimes necessary—and I use the word advisedly—for come children to spend part of the winter out of this country because of bronchitis and also sometimes because of asthma, it should be made possible for a parent to take the child away for longer than 90 days and there should be allowance for 180 days. If the Government were to accept that proposal it would be fine—and the period would not be longer than that in the circumstances of which I am thinking—provided the average over the period is in fact 90 days in each year.30
§ I hope that the Government will accept this amendment which will in fact relieve some of the problems affecting children, particularly at school age. Indeed, we ought to be thinking quite seriously about not having children adversely affected at school age. I hope that the Government will accept the amendment. I beg to move.
§ Baroness Birk
My Lords, on behalf of these Benches I should like to support the amendment moved by my noble friend Lord Pitt of Hampstead. He has stated very clearly why he has now decided on seven years. Personally, I should have preferred five years. However, if the Government would accept seven years it would be a tremendous improvement on the 10 years that is in the Bill at present. If a child has lived here for the first seven years of his or her life, from the nationality point of view he or she is likely to remain here. Therefore, the sooner the child can acquire citizenship, the better for the child and also for his or her parents or guardians. It is very important that anxiety about a child's future citizenship status should be settled as soon as possible; it is also very important from the viewpoint of the schools.
In our debates there have been many references to the delays, which are already serious and which are certain to get worse, in processing citizen applications. We must remember—and I put this very strongly to the Minister—that if an application is not sent in until after the child is 10 years old (which would be the position if this amendment is not accepted), allowing about two years—and that may be a rather cautious under-estimate—for the time that would be needed to assemble the documentation and get off the application, at best the child would be 11 years old but probably 12 or 13 before the application is granted, especially in cases where the Home Office wants to query the documentation or demands extra evidence beyond what is at first submitted. So in those circumstances we are getting beyond 10 years. Of course, if the Government were to stick to the 10 years, that would bring the age up to 12, 13 or 14 years, which I think the House should find unacceptable.
The position of the child at school can, as my noble friend pointed out, be made extremely difficult. There are many examples of the way in which a child could be affected at school, apart from his or her own individual knowledge that he or she may be different from the other children around. For example, nowadays schools often organise foreign trips for children and the normal practice is to obtain a collective passport, which is both cheaper and easier, instead of getting all the children to produce their own passports. But to be eligible for inclusion in one of these collective passports children must have British nationality. It may be felt that this is a detail, but it is not a detail to the child who is in that position and is made to feel different, and it is not a detail for the child's parents who may in fact refrain from allowing the child to go or from including the child in the particular expedition because of the uncertainty and anxiety that they will have about the position, and because they are frightened of this question of the child's passport and the child's lack of citizenship.
However, we must remember that this goes beyond the organisation of school routine in getting a collective 31 passport; it is the problem and the fear of their nationality rights and the difficulties, in the general climate of worry, that have surrounded this Bill and which would, indeed, surround any nationality Bill which will alter the status of various people.
This amendment is not very heavy-handed; it does not deal with any fundamental principles. It is simply saying that for very good reasons, which have been propounded by my noble friend, seven is a better age than 10—my noble friend has dropped the age of five—and that all the Government have to do is to accept this drop in age. As regards the second part of the amendment—and I shall not go over the ground already covered by my noble friend—I would point out to the Minister that in the amendments that are still to come before us, he has shown flexibility and has dealt in a similar way with the question of the number of days, which would seem to me to pave the way for the acceptance of this amendment.
§ Lord Avebury
My Lords, I should like to say a few words about the kind of people who will be eligible for the concession which the noble Lord, Lord Pitt, has suggested and which I would very warmly support. As I pointed out in Committee, the vast majority of parents who are not settled here would, in fact, be students who enter for university degree courses, which normally last for three years. Therefore, if the noble Lord's amendment were accepted, there would be plenty of latitude between the period for which a student is normally admitted, even if he or she then goes on to do a Ph.D (which might take another two years), and the period of seven years which is mentioned by the noble Lord in his amendment.
When I spoke about the students in Committee the noble Lord, Lord Belstead, welcomed my intervention as identifying the kind of people who would benefit, but he went on to point out that there are a number of people in public life who make it their business to prolong the stay in this country of persons who have made applications for extensions, and who assist them in their dealings with the Home Office. Following my remarks about the students, he implied that the five-year period suggested by the noble Lord, Lord Pitt, at that time was too short, because a person who was not settled who comes to the end of, say, a university degree course, can then go to the Joint Council for the Welfare of Immigrants or to the United Kingdom Immigrants Advisory Service to seek an extension, which may be refused, but he has a right of appeal. The noble Lord was insinuating that it would take the Home Office so long to reach a conclusion on that case that by the time the formalities had been gone through, under the amendment of the noble Lord, Lord Pitt, the parents would have acquired the right by having remained here for five years, so they would then be able to register their children as British even though they might subsequently lose the appeal and be found not to have qualified for an extension.
I think that the noble Lord's modification of his amendment overcomes that argument because the lengthening of the five-year period to seven years gives plenty of scope for the most extreme cases of delay in the Home Office. Although the Home Office 32 is probably the slowest department in making up its mind on matters put to it by your Lordships, by individual Members of your Lordships' House or by members of another place, I do not know of any case where a Minister has taken as long as two years to exercise his discretion. If he is to take as long as two years, that is contrary to public policy and a case should not rest in the Minister of State's department or in the bowels of Lunar House for anything like as long as that. If the noble Lord is making the excuse that he cannot accept an amendment of this kind because of the deficiencies in his own department, I do not think that that argument would commend itself to your Lordships. If the procedures within the Home Office are so inordinately complex as to require a period as long as two years for a decision to be made, then the Immigration Rules need to be simplified. Therefore, with the concession that has been made by the noble Lord, Lord Pitt, the arguments which were put by the Minister in Committee having been totally overcome, I hope that he will now see fit to make this small further concession.
§ 4.49 p.m.
§ Lord Belstead
My Lords, Clause 1(4), to which the amendment of the noble Lord, Lord Pitt, is directed, is a provision which the Government hope will assist children who in later years may have difficulty in producing evidence of their parents' status. Perhaps it is worth just repeating that the status which needs to be proved for citizenship is quite wide: either that the mother or father is a citizen or that either the mother or father is settled in this country. If it is not possible to prove either status under Clause 1, the Government genuinely hope that Clause 1(4) will help by saying that if there is evidence of continuous residence in this country on the part of the child for a period of 10 years—with certain absences written in, to which I shall come in just a moment—then as of right there shall be an entitlement for citizenship.
The effect of the noble Lord's amendment is to reduce the 10 years to seven. As I had to say when we looked at the amendment which the noble Lord moved in Committee, I really see difficulties in this proposal. As I explained on that occasion, there is a good reason for choosing 10 years as the qualifying period. Certainly I take to heart what the noble Lord has said, that the interests of the child should be of prime importance in anyone's consideration. But of course the child is with the parents, and if the child's parents are here subject to conditions of stay, or in breach of immigration laws, those problems would normally have been resolved one way or another during a 10-year period.
Moreover, the view which normally has been taken in the past, that parents who have been here for 10 years have ties with this country which are substantial enough to justify allowing them to remain with any children irrespective of their situation under the immigration control, is something which the House would want to keep in mind. We have thought about this again, but I am bound to say that we have not thought that a period of seven years would have equal weight. I have to give a word of warning that it is not unusual for overstayers and illegal entrants to disappear for that sort of length of time in this country. A 33 period of seven years in Clause 1(4) would thus in our view be insufficient and would be unsatisfactory.
There is one important point which the noble Baroness, Lady Birk, and the noble Lord, Lord Avebury, put to me; namely would not the 10-year period be a much longer period because of delays administratively within my right honourable friend's department? Let us just bear in mind in looking at this particular matter that the evidence which is going to be needed under Clause 1(4) is evidence of the child's residence in this country, not of the parents' status. We envisage something perfectly simple, and I say quite genuinely that I think that the administrative procedures will be a great deal simpler than perhaps the noble Baroness and the noble Lord envisage.
There is a second aspect to Lord Pitt's amendment, and that is to make longer the length of permissible periods of absence. The main effect of the noble Lord's amendment in this second part would be to allow much longer periods of absence from this country. In fact it could mean that a person could be out of the United Kingdom without losing his or her entitlement for nearly a year in all as you go from year to year, putting six months and six months on end. Absences of such length would in our view begin to cast doubt on the nature of the child's links with the United Kingdom.
Having said that, I hope that the noble Lord will take the view that we are trying to go a long way towards meeting him. If your Lordships would care to glance at Amendment No. 7, which of course we have not yet discussed, the Government are trying to meet a point made by my noble friend Lady Trumping-ton in Committee, and indeed taking into account what the noble Lord, Lord Pitt, said in Committee and again today, by enabling the Secretary of State, if he thought fit in the special circumstances of any particular case, to allow more than 90 days' absence a year for the purposes of Clause 1(4).
There is one small matter which I ought to point out to the House. I think that the noble Lord, Lord Gifford, and my noble friend Lord Colville would be a little concerned if Lord Pitt's amendment went into the Bill as it is printed, for the dreaded words" if the Secretary of State is satisfied" appear in Amendment No. 2. This is something which I know is beyond the pale so far as those two noble Lords are concerned.
What I am trying to say in essence is that I think that the discretionary power which we are proposing to introduce in Amendment No. 7 will enable due account to be taken of any particular cases of hardship that might arise under the provision of Clause 1(4). I believe that it is better for such cases to be dealt with in this way than by allowing long periods of absence in all cases, which would be the effect of the amendment. As I have said, that might well lead to British citizenship being acquired by those who do not really have a strong or continuing connection with this country; a connection which I think will be proved if we could stick, for the reasons I have given, to the 10-year proposal. It is on those grounds, and I hope showing that we have considered with care what the noble Lord is putting forward, that I would not want this amendment to be agreed to.
§ Lord Pitt of Hampstead
My Lords, I am sorry that the Minister is not more accommodating on this. I feel strongly about this. I shall have to take it to a Division. Seven years of continuous residence in this country is proof of close and continuing connection. It is not necessary that it should be 10 years. The point about seven rather than 10 is that 10 years will affect children attending junior school. I cannot believe that the Government can be so insensitive to this point. It is a most important point.
In your schools and in your classes you do not want to have two types of children. You do not want to have children in your classes whom the teacher cannot take abroad because their citizenship status is unsatisfactory. I cannot believe that the Government cannot see that point, but they are insisting on this 10 years, and between the seven and 10 there will be this problem for the children. I cannot see that the extra three years makes that much difference in terms of showing nexus. It does not. This seven years is enough. Why cannot we accept that? What is wrong? Why must we be so unkind? This is unkind. Why must we be unkind?
As for the second part of my amendment, I think the clause which the Government are introducing would meet it, and, if the Government were accepting the seven years, I should be quite happy about this, but I cannot in fact accept that children going to junior school should be allowed to have a status which would make them different from the other children. I cannot accept that. I hope that your Lordships will support me in this. I must divide the House.
§ 4.57 p.m.
§ On Question, Whether the said amendment (No. 2) shall be agreed to?
§ Their Lordships divided: Contents, 84; Not-Contents, 121.35
|DIVISION NO. 2|
|Airedale, L.||Fisher of Retinal, B.|
|Amherst, E.||Fulton, L.|
|Ardwick, L.||Gaitskell, B.|
|Avebury, L.||Gifford, L.|
|Aylestone, L.||Gladwyn, L.|
|Bacon, B.||Glenamara, L.|
|Banks, L.||Granville of Eye, L.|
|Beswick, L.||Hale, L.|
|Birk, B.||Hampton, L.|
|Bishopston, L.||Hanworth, V.|
|Blease, L.||Houghton of Sowerby, L.|
|Blyton, L.||Howie of Troon, L.|
|Brockway, L.||Hunt, L.|
|Brooks of Tremorfa, L.||Irving of Dartford, L.|
|Bruce of Donington, L.||Jacques, L.|
|Chelmsford, Bp.||Janner, L.|
|Chitnis, L.||Jeger, B.|
|Cledwyn of Penrhos, L.||John-Mackie, L.|
|Collison, L.||Kaldor, L.|
|Cooper of Stockton Heath, L.||Leatherland, L.|
|Cudlipp, L.||Listowel, E.|
|David, B.||Llewelyn-Davies of Hastoe, B.|
|Davies of Leek, L.||Lovell-Davis, L.|
|Davies of Penrhys, L.||McCarthy, L.|
|Donaldson of Kingsbridge, L.||McGregor of Durris, L.|
|Elwyn-Jones, L.||Mayhew, L.|
|Elystan-Morgan, L.||Molloy, L.|
|Evans of Claughton, L.||Noel-Baker, L.|
|Feversham, L.||Ogmore, L.|
|Oram, L.||Stewart of Fulham, L.|
|Peart, L.||Stone, L.|
|Pitt of Hampstead, L.||Tanlaw, L.|
|Ponsonby of Shulbrede, L. [Teller]||Taylor of Gryfe, L.|
|Taylor of Mansfield, L.|
|Porritt, L.||Underhill, L.|
|Rhodes, L.||Wade, L.|
|Rochester, Bp.||Wallace of Coslany, L. [Teller]|
|Ross of Marnock, L.||Wells-Pestell, L.|
|Sainsbury, L.||Willis, L.|
|Shackleton, L.||Wilson of Radcliffe, L.|
|Shinwell, L.||Winstanley, L.|
|Stewart of Alvechurch, B.||Wootton of Abinger, B.|
|Airey of Abingdon, B.||Lyell, L.|
|Alexander of Tunis, E.||McAlpine of Moffat, L.|
|Ampthill, L.||McFadzean, L.|
|Avon, E.||Mackay of Clashfern, L.|
|Beloff, L.||Mancroft, L.|
|Belstead, L.||Mansfield, E.|
|Boardman, L.||Margadale, L.|
|Boyd-Carpenter, L.||Marley, L.|
|Camoys, L.||Mersey, V.|
|Campbell of Alloway, L.||Milverton, L.|
|Campbell of Croy, L.||Monk Bretton, L.|
|Chelwood, L.||Murton of Lindisfarne, L.|
|Clitheroe, L.||Northchurch, B.|
|Cockfield, L.||Nugent of Guildford, L.|
|Coleraine, L.||O'Hagan, L.|
|Colville of Culross, V.||Onslow, E.|
|Cork and Orrery, E.||Orkney, E.|
|Cottesloe, L.||Orr-Ewing, L.|
|Cowley, E.||Peel, E.|
|Crawshaw, L.||Pender, L.|
|Croft, L.||Penrhyn, L.|
|Cromartie, E.||Perth, E.|
|Cullen of Ashbourne, L.||Portland, D.|
|Daventry, V.||Rawlinson of Ewell, L.|
|Davidson, V.||Redmayne, L.|
|Denham, L.[Teller]||Renton, L.|
|Digby, L.||Rochdale, V.|
|Drumalbyn, L.||Romney, E.|
|Ellenborough, L.||St. Aldwyn, E.|
|Elles, B.||St. Germans, E.|
|Elliot of Harwood, B.||Saint Oswald, L.|
|Elton, L.||Sandford, L.|
|Exeter, M.||Sandys, L. [Teller]|
|Faithfull, B.||Sempill, Ly.|
|Ferrier, L.||Sharpies, B.|
|Forester, L.||Skelmersdale, L.|
|Fortescue, E.||Spens, L.|
|Geddes, L.||Stamp, L.|
|Gisborough, L.||Stanley of Alderley, L.|
|Gormanston, V.||Strathclyde, L.|
|Gray, L.||Strathspey, L.|
|Gridley, L.||Swansea, L.|
|Grimthorpe, L.||Swinfen, L.|
|Hailsham of Saint Marylebone, L.||Terrington, L.|
|Harvington, L.||Thomas of Swynnerton, L.|
|Hawke, L.||Thorneycroft, L.|
|Henley, L.||Tranmire, L.|
|Hives, L.||Trefgarne, L.|
|Hornsby-Smith, B.||Trenchard, V.|
|Hylton-Foster, B.||Trumpington, B.|
|Ilchester, E.||Vaizey, L.|
|Kilmany, L.||Vaux of Harrowden, L.|
|Kinloss, Ly.||Vickers, B.|
|Kinross, L.||Vivian, L.|
|Kitchener, E.||Wakefield, of Kendal, L.|
|Lane-Fox, B.||Ward of Witley, V.|
|Lindsey and Abingdon, E.||Westbury, L.|
|Long, V.||Willoughby de Broke, L.|
|Loudoun, C.||Wolverton, L.|
|Lucas of Chilworth, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.36
§ 5.7 p.m.
The Lord Advocate (Lord Mackay of Clashfern) moved Amendment No. 3:
Page 2, line 14, leave out ("the Secretary of State is satisfied that").
§ The noble and learned Lord said: This is the first of a series of amendments that we have brought forward which remove the references in the Bill which stipulate that applicants for citizenship as an entitlement must satisfy the Secretary of State that they have met various requirements. Noble Lords will remember that, in Committee, my noble friend Viscount Colville, the noble Lord, Lord Gifford and others raised questions about this matter and I undertook to examine the point to see what could be done to make the provision clearer. We have decided in the light of that consideration that it would be possible to operate these provisions without specifying that these entitlements should depend on whether the Secretary of State is satisfied. If the criteria are met, then the Government agree that the entitlement should obtain and that it should not be expressed as depending on the satisfaction of the Secretary of State.
§ We do not necessarily accept all the criticisms which were made of the satisfaction formula in Committee, and I stress again that it was not our intention to put obstacles in the way of applicants through such a provision. We are not convinced either than the proviso would have acted to restrict the ability of the courts to consider an approach by someone who had been refused citizenship to which he believed himself entitled. However, we accept that the form of words could lead to fears on this score. We accept, too, that it is desirable there should be no ambiguity about what is demanded of applicants for citizenship as an entitlement. Accordingly, we have decided that it would be right to remove this possible cause of anxiety and friction.
§ The amendment applies this decision to Clause 1(4), but I hope that what I say will be taken as applying, with any necessary variations, to the large number of amendments on the Order Paper which raise the same point. In its application to Clause 1(4), the Government's new wording will make it clear that an applicant will have an entitlement if, during the first 10 years of his life, he has not in any one year been absent from this country for more than 90 days, subject to the discretion in that connection which we are proposing in a later amendment. This entitlement will not depend on the Secretary of State being satisfied that the residence criteria are met; it will exist if they are met. But of course that does not mean that the Secretary of State can register anyone about whose entitlement he is not satisfied. The Secretary of State could register only where he thought that the entitlement was really held by the applicant. Thus the practical relevance of the amendment might not be more than a clarification of the situation. I hope that your Lordships will feel that we have considered this matter carefully, and as a result acceded to the suggestions that were made in Committee. My Lords, I beg to move.
§ Lord Gifford
My Lords, this is the first of a few happy moments that we are to have in the course of the Report stage, where we welcome amendments put 37 down by the Government in terms similar to those which were put down by noble Lords on various sides of the Chamber in Committee. I particularly welcome this amendment. Having in the Committee stage gone through the Bill with increasing concern and crossed out the reference to "being satisfied" wherever it occurred I am now delighted that exactly the same amendments have been put down by the Government. I want to add only this point, on a personal level. I do not associate myself with those who say that moments such as this are a justification for the retention of your Lordships' House. We could I think have such moments within a differently constituted Parliament.
The amendment makes clear that the entitlements in the Bill are rights which can be claimed, which can be insisted on in a court of law if they are not accorded, and are not some kind of quasi rights which depend on getting your case accepted by the Secretary of State.
There are only two other points to make. First, I should like to reserve my own position on the amendments which are to be moved later by the noble Viscount, Lord Colville of Culross, which raise the same kind of consideration about the enforceability of the provisions of the Bill. Certainly whether or not the House accepts the noble Viscount's amendments, the abolition of this formula is a vast improvement. Secondly, it may, I hope, lead to improvements in the drafting of legislation generally. This formula about being satisfied is something of a bogey formula in administrative law and the less it appears in legislation in future, the better.
Viscount Colville of Culross
My Lords, I, too, should like to thank my noble and learned friend for this series of amendments which he has put down. I think that I need add very little to what the noble Lord, Lord Gifford, has said on this matter. I am in an unusual alliance with him on this occasion. I should like to consider the question of "appeal-ability" in connection with my much later amendments (which certainly will not be reached today) because I am still not entirely certain how the courts would look upon a claim that the various criteria of entitlement had been fulfilled, when, as my noble and learned friend has said, the Secretary of State in practice had found that he was not satisfied on that point. But this is certainly a clarification. It must make life easier for those who wish to test their rights, and certainly nothing that I would wish to say this evening would do anything other than welcome it and encourage the House to accept this amendment and those that go with it.
§ Lord Boyd-Carpenter
My Lords, as one who took part in the debates at the Committee stage I, too, should like to thank the Government and my noble and learned friend for introducing the amendment. If I may, I should also like to congratulate what has been described as the unholy alliance of my noble friend Lord Colville of Culross and the noble Lord, Lord Gifford, on their success, because at the Committee stage they executed a somewhat effective pincer movement against the Minister. Although in a way my noble and learned friend the Lord Advocate, I thought, tried to minimise the practical consequences of the amendment, I am inclined to share the view 38 of my noble friend Lord Colville of Culross that it would make it easier for an aggrieved person to secure a remedy through the courts than would be the case if the Bill had stood in its original form.
I feel tempted also to say to the noble Lord, Lord Gifford, in respect of his somewhat ungenerous comment on your Lordships' House, that the amendment was in fact effected as a result of the debate in this House. There is absolutely no evidence whatever to justify the proposition that another form of second Chamber would have done it as quickly, as effectively, and as well.
§ Lord Avebury
My Lords, on behalf of my noble friends I wish to echo the words of thanks that have been expressed to the Government, and to say that whatever reformed Chamber might take the place of your Lordships' House in the future, it will be effective so long as it contains noble Lords such as the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Gifford.
§ Lord Elwyn-Jones
My Lords, I, too, should like to say thank you for the decision of the Government and indeed for this particular amendment, relating to the provisions of subsection (4), which are a classic example of the bestowal of an entitlement. It would have been extremely unsatisfactory for that to have been in some way restricted by the possible intervention of the Secretary of State in circumstances where the factual situation of the individual case would merit examination by the court. I confess that it might well be that in the course of my activities as Attorney-General and Lord Chancellor I, too, have perpetrated the inclusion of words such asif the Secretary of State is satisfied".At any rate, it is an excellent thing that in this case what might have been a bad old practice has been abandoned.
§ On Question, amendment agreed to.
§ 5.17 p.m.
§ Lord Avebury moved Amendment No. 4:
Page 2, line 16, at end insert—
("( ) A person born outside the United Kingdom shall be entitled, on an application for registration as a British citizen, to be registered as such a citizen if either his father or his mother was a British citizen by descent at the time of his birth, and that parent had a father or mother who was a British citizen otherwise than by descent.").
§ The noble Lord said: My Lords, this amendment is very similar to an amendment that I moved in Committee on 13th July, and it will not be necessary to repeat the arguments for an extension of citizenship to the second generation of descendants who are born overseas, whether or not accompanied by some test of a qualifying connection. On the previous occasion when we discussed this matter the noble and learned Lord the Lord Advocate, though as usual the soul of courtesy, gave no indication that the Government were willing to do anything in this direction, and therefore it was a very pleasant surprise when, on looking at the Marshalled List, I saw Amendment No. 16; and I wonder whether it would be the pleasure of your Lordships that we discuss these two amendments together, since they are very similar in their nature.
§ In their amendment the Government have agreed that, after all, citizenship ought to be extended to the 39 second generation born overseas, as we originally suggested as long ago as the response which we made to the previous Administration's Green Paper on nationality, which we published, under the title Who's your Father?, in July 1977. The remaining difference between us and the Government is in fact a fairly slight one. In the Government's scheme a child born overseas to a parent who was himself or herself the child of a British citizen otherwise than by descent shall be entitled to be registered as British if, first, the application is made within 12 months of the birth, and then, either the parent through whom the descent is claimed was in the United Kingdom for some period of three years prior to the birth, or the child was born stateless.
That is quite a major concession, in particular when one looks back at what was said by the Minister of State when a very similar amendment to this was discussed in Committee in another place. Speaking about someone who had spent what he called a relatively short time, no more than three years, in the United Kingdom, and who had little or no continuing link with this country, the Minister of State said—I shall quote from col. 560 of the Commons Hansard of the Committee stage—
Such a person would not necessarily represent British interests in any way and might want citizenship for his or her child only for the convenience of a British passport. To give an entitlement to citizenship in such circumstances would be contrary to our aim of defining more closely those who belong to this country ".
§ I am very glad that the Government have moved away from what the Minister of State said then, and I think it is some indication of the strength of the arguments which have been put in your Lordships' House that we have succeeded in changing their minds on this matter where it was not possible to do so in another place. It seems to me a major advance, and I move this amendment now only because it still has the advantage over the Government's proposals (which was conceded by the Lord Advocate when we were talking about this in Committee) of simplicity. We are, after all, talking about a very small number of children who lack this qualifying parental connection of three years' prior residence in this country and who would have some other nationality. If the state of which the child is born a national does not permit dual citizenship, then exercise of the right to apply would result in forfeiture of the nationality of that other state.
§ So I think the number of children who would be entitled to benefit from these proposals must be very small, and the parents who would make application to register the child as a British citizen, not having been resident in this country for three years, must have extremely powerful reasons for doing so of a nature other than the connection by three years' residence which is provided in the Government's formula. I do not object to the stipulation that the application has to be made within 12 months of birth because that is in fact the period within which a consular registration has to be effected under the existing law.
§ My Lords, there is only one other point I think I ought to make because it has been put to us by the Association for the Rights of Britons Abroad. The 40 formula which the Government have suggested meets most of their case, but I understand that when they were discussing the problems with the noble Lord, Lord Belstead, they were not able to reach any agreement on the question of upgrading citizenship, which, as the noble Lord is aware, had been a matter of considerable anxiety to them. That means, to put it as succinctly as I can, that if a person is a British citizen by descent he is never able to re-establish himself as a first-class citizen, a citizen by birth, and then to transmit his citizenship as if he had always been a British citizen by birth. The Association for the Rights of Britons Abroad believe that if a person resumes his residence in this country, or if he can establish his tie or connection with it in some manner which remains to be agreed, then he ought to be able to come back into the status of first-class citizen. I hope that, although this may not be the best place to discuss it, the noble Lord, Lord Belstead, will have been able to give some further thought to that matter. Even though there is not any amendment on the Marshalled List to deal with it, it is something we may come back to before we have completed our proceedings on this Bill. I beg to move.
§ Baroness Elles
My Lords, if the noble Lord will allow me to intervene, I have put down Amendment No. 72, which deals precisely with the question of upgrading.
§ Lord Mackay of Clashfern
My Lords, this amendment which the noble Lord has tabled is, I think, practically the same as an amendment for inclusion in Clause 3 which he tabled at the Committee stage, as he has said. He pressed it to a Division at that place, and your Lordships rejected the amendment. It reappears now for insertion in a different clause. It is quite clear, I should have thought, that if it has a place in the Bill at all it is in the place where it was originally put, and not in Clause 1. Therefore, far from advancing the cause of the amendment, by putting it in the wrong place the argument for it has been somewhat downgraded.
The amendment, as I understand it, would extend British citizenship to the second generation without any requirement of connection with the United Kingdom, and it is that fundamental difference of approach which remains our answer to the substance of the amendment. I would wish to remind your Lordships that under the Bill transmission of citizenship is to be in the female as well as in the male line; but although this is of course a very welcome development, it means that the possibilities of transmission are very greatly increased. It seems clear, as I remarked in Committee, that the noble Lord's amendment would allow many people to acquire our citizenship though they are in reality from families who have left this country behind and emigrated permanently abroad. The applicants for registration could have grown up and lived almost their full lives with another citizenship before deciding, almost as an afterthought, that it would be convenient to have ours, too. This kind of result would be contrary to the aim of this Bill of having a British citizenship which reflects people's genuine ties with this country; and, of course, it is also one which carries the right of abode.
41 My Lords, in speaking to his amendment the noble Lord has referred to the Government amendment dealing with this matter which we shall come to in due course. I would not want to examine that in detail now unless your Lordships feel that it is necessary. I think it is probably wise to treat these subjects, although related, under their appropriate amendments. Indeed, the intervention of my noble friend Lady Elles shows that the upgrading question is much better dealt with in that amendment. So apart from saying that we have greatly simplified the requirements for citizenship by descent in the amendments which we are going to propose, and made a most important requirement of connection with this country by three years' residence, which distinguishes ours from the noble Lord's amendment, I would not want to elaborate on that now and I would strongly invite your Lordships not to accept the noble Lord's amendment.
§ Lord Avebury
My Lords, if I had known that the Government were going to be prepared to go as far as they have and as far as I have described in the amendment that we are shortly going to deal with, then I probably would not have pressed a similar amendment to a Division on Committee stage; and I certainly have no intention of asking your Lordships to divide on this amendment now. This is one of the places where we are able to welcome, so far as they go, the concessions that the Government have made, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.28 p.m.
§ Lord Avebury moved Amendment No. 5:
Page 2, line 16, at end insert—
("( ) If in the special circumstances of any particular case the Secretary of State thinks fit, he may for the purposes of subsection 4 treat the person for whom the application relates as fulfilling the requirement specified in that subsection, although the number of days on which he was absent from the United Kingdom in the period there mentioned exceeds the number there mentioned.").
§ The noble Lord said: My Lords, this amendment deals with the position of children born after this Bill becomes an Act to parents who are not settled in the United Kingdom—and by that, of course, we mean parents who are not ordinarily resident and not without being subject under the immigration laws to any restrictions on the period for which they remain. Of course, as we have heard before, if either parent becomes settled then the child can be registered under Clause 3(1)(a), but if for any reason the parent is for years an applicant for refugee status—that is the example we have been looking at before—or, indeed, if for any other reason the parents remain in the United Kingdom for some considerable period, then the child has to depend on the acquisition of citizenship by the 10-year residence period which is provided under Clause 1(4). He can be absent from the United Kingdom in any one of those years only for a period of 90 days, and I think it was generally agreed when the noble Baroness, Lady Trumpington, raised this matter in Committee, that a period of 90 days was too restrictive if it carried no discretion.
§ Again, the Government have put down an amendment, which comes later on in the same clause, and it 42 may well be that the place where they have put it down is more appropriate than the particular line that I have chosen; and the Government's amendment is in very similar terms to the amendment I am now moving. Had I noticed this amendment on the Marshalled List, I should not have taken steps to put down my own. I believe that they are identical in their meaning and I hope that your Lordships will accept one or other of them. Again, I have the opportunity of welcoming the concessions the Government have made since Committee. I beg to move.
§ Lord Belstead
Your Lordships will recall that in Committee we discussed an amendment very much on the same lines as the amendment which is now being moved by the noble Lord, Lord Avebury, and that that amendment in Committee was tabled by my noble friend Lady Trumpington. In replying to the debate on that amendment on July 7th, I indicated for the Government that we accepted the case for a discretion to relax the permitted periods of absence for applicants under Clause 1(4) of the Bill. As the noble Lord has said, there is a Government amendment to this effect—Amendment No. 7, which we have not yet reached. I do not want to split hairs, but I think that the Government amendment was put down a week ago and was first printed on the following day. We had prepared it with care to ensure that it achieved the objective desired by my noble friend. The noble Lord's amendment was put down so that it appeared on the Marshalled List at the end of last week. It differs slightly in drafting from Amendment No. 7. I had expected the noble Lord to explain why its drafting is preferable. I am not criticising the amendment. I am delighted that the noble Lord and the Government see eye to eye on this matter; but if there is no reason why the noble Lord feels that the drafting and placing of his amendment are preferable then I should prefer to adopt the drafting of the Parliamentary draftsman who is responsible for the Bill, would ask the noble Lord to await Amendment No. 7 and would ask the House to agree to that amendment.
§ Lord Avebury
My Lords, I am prepared to accept the advice of the noble Lord the Minister on this. I think it is a matter of taste where you put the amendment. I do not think there are very strong arguments for having it in one place rather than another. The noble Lord mentioned that the Government amendment was on the Marshalled List a week ago. I may say that I drafted my amendment earlier but that it took some time to get to the Public Bill Office because of the difficulties which arise when the House is not sitting, when it is not always easy to bring in material and get it onto the right desk. But, having seen the Government amendment after tabling my own, I was delighted that it sought to do the same as we were aiming to do. I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ 5.33 p.m.
§ Lord Belstead moved Amendment No. 6:
Page 2, line 23, leave out subsections (6) and (7) and insert—
("( ) Where an order in consequence of which any person became a British citizen by virtue of subsection (5) ceases to have effect, whether on annulment or otherwise, the cesser shall not affect the status of that person as a British citizen.").
§ The noble Lord said: My Lords, having invited the House to choose a Government amendment which we have not yet reached instead of an amendment tabled by the noble Lord, Lord Avebury, may I say that this amendment has been put down to meet amendments tabled in Committee by the noble Lord but which the noble Lord in the final event did not move?
§ This amendment is designed to simplify and clarify a particularly complicated part of Clause 1. The amendment seeks first, to delete subsections (6) and (7) of Clause 1, which seek to re-enact in terms of British citizenship the provisions of Section 40(3) of the Adoption Act 1976. That subsection provided that if a convention adoption order (or a specified order) ceased to have effect a child would not cease to be a citizen of the United Kingdom and Colonies on that account. There was no similar provision in the 1976 Act for any other adoption orders which may be revoked. It is in fact unlikely that a child would lose citizenship if adoption orders other than those defined in Clause 1(7) were to be revoked, particularly since orders can be revoked only in very limited circumstances. However, we have considered this matter following amendments which were put down, but not moved, by the noble Lord, Lord Avebury, in Committee and we thought it right to take steps to remove any possible ambiguity that there might be.
§ Accordingly, this amendment seeks to replace Clause 1(6) and 1(7) with a more general saving. This would ensure that, if any adoption order made by a court in the United Kingdom (or the Islands) which, under Clause 1(5), has conferred British citizenship, ceases to have effect, then this shall not affect the claim of the subject of the adoption order to the right to British citizenship. Thus the saving currently found in Clause 1(6) and 1(7) for certain types of adoption order will, under this amendment, extend to all types of adoption order made by any court in this country where such orders have conferred British citizenship under the provisions of Clause 1(5). I hope that the House may think this desirable. The Government think so. I beg to move.
§ Lord Avebury
My Lords, I am happy that the Minister has tabled this amendment, the drafting of which I can see is superior to that which I put down in Committee.
§ On Question, amendment agreed to.
§ Lord Belstead moved Amendment No. 7:
Page 2, line 34, at end insert—
("( ) If in the special circumstances of any particular case the Secretary of State thinks fit, he may for the purposes of subsection (4) treat the person to whom the application relates as fulfilling the requirement specified in that subsection although, as regards any one or more of the first ten years of that person's life, the number of days on which he was absent from the United Kingdom in that year or each of the years in question exceeds 90.").
§ The noble Lord said: My Lords, very briefly, because we have already referred to this matter, this amendment derives from Amendment No. 15 tabled at the Committee stage by my noble friend Lady Trumpington. The Government were impressed by my noble friend's argument on that occasion for a relaxation in suitable 44 cases of the 90-day-a-year absence allowance in Clause 1(4). In addition, my noble friend Lord Boyd-Carpenter also argued on that occasion for the need for flexibility in the system. I am glad to be able to introduce this amendment, which is essentially the amendment, slightly redrafted, of my noble friend Lady Trumpington. I beg to move.
§ Baroness Trumpington
My Lords, may I first apologise to my noble friend for being late? It took me longer to get out of Her Majesty's prison of Pentonville and to get here than I had anticipated. However, due in great part to the efforts of the noble Lord, Lord Avebury, I have had ample time to look not only at my own former amendment but at the other Government amendments inserted in this Bill during the long hot summer—which proves to me that the Home Office has taken enormous trouble to act in a sensitive and generous way over many clauses and will confound most of the critics who appeared at Second Reading. For my part and on this particular amendment, I should like to say that I am delighted to see its reappearance in far more elegant drafting than I was able to manage.
§ Lord Boyd-Carpenter
My Lords, I also should like to thank my noble friend for meeting so fully the request I made for the introduction into the Bill of greater flexibility over this period. May I also add in the presence of a Home Office Minister that, in the light of recent events, I am delighted that one person had a little difficulty in getting out of one of Her Majesty's prisons?
§ On Question, amendment agreed to.
§ Lord Belstead moved Amendment No. 8:
Page 2, line 34, at end insert—
("( ) In this section and elsewhere in this Act "settled" has the meaning given by section 50.").
§ The noble Lord said: My Lords, this amendment seeks to add to Clause 1 of the Bill a new subsection which draws to the attention of the reader that the term "settled", as used both in Clause 1 and elsewhere in the Bill, is defined in Clause 50. It is, essentially intended to be helpful to the reader by warning him that "settled"—which is, after all, a word in common usage with an ordinary meaning—has, for the purposes of this Bill, a technical meaning as set out in the interpretation clause—Clause 50.
§ As your Lordships may recall, similar amendments which also sought to add to Clause 1 of the Bill a forward reference to the definition of "settled" in Clause 50 were moved at the Committee stage by my noble friends Lord Drumalbyn and Lord Renton. I must admit that I put forward certain arguments against my noble friends' arguments which were fairly successfully shot down, if I remember rightly, by my noble friends Lord Drumalbyn and Lord Renton. I went away and I thought about it. After taking advice, the Government have come forward with this amendment which accepts the arguments advanced by my noble friends about the advantages of a forward reference of this kind in helping the reader to understand this Bill. This amendment is the result and I am grateful to my noble friends. I beg to move.45
§ Lord Renton
My Lords, may I say how grateful I am to my noble friend Lord Belstead? I hope that it would not sound churlish if I were to say that as a matter of presentation this amendment would be even more effective if it were to follow subsection (1) of Clause 1 rather than coming at the end of the clause. May I therefore put into his mind that possibility for a Government amendment for Third Reading: to bring the amendment forward in the Bill?
§ Lord Belstead
My Lords, I certainly take on board what my noble friend has said. It had not escaped my notice that we had not placed the amendment in the place which my noble friend Lord Renton favoured at the Committee stage. But I have already said that advice has been taken and clearly on a matter of this kind that included advice from the parliamentary draftsman. I shall certainly have a look at it again but with no commitment at all because I think that it is implicit in what I have said that we did take the advice of the parliamentary draftsman. As things stand at the moment, we think that this is the right place for the amendment.
§ On Question, amendment agreed to.
§ Clause 2 [Acquisition by descent]:
§ 5.42 p.m.
§ Lord Aylestone moved Amendments Nos. 9 to 12:
§ Page 2, line 38, leave out ("otherwise than")
§ Page 2, line 38, after ("descent") insert ("and that person is the first generation")
§ Page 2, line 38, after ("descent") insert ("and has lived in the United Kingdom for a total period of three years before reaching the age of eighteen")
§ Page 2, line 38, after ("descent") insert ("and that person is stateless").
§ The noble Lord said: My Lords, with the permission of the House, I should like to speak to Amendments Nos. 9 to 12. These amendments deal with the same subject matter. It must be obvious to the House that these amendments have not been drafted by parliamentary draftsmen and I had better try to explain our intention in proposing these amendments. The position at the moment, until the Bill becomes law, is that children born abroad of British parents who were born in this country are themselves British. They are CUKCs. However, after the completion of this Bill they become British citizens by descent. The difficulty arises when one thinks of their children—that is, the first generation of those children of Britons born by descent. The people who are working abroad—most of them for Britain—feel that there is a retroactive action in this Bill which is taking away from them a right that they had that their children born abroad should be regarded as British citizens.
§ My four amendments therefore deal with their situation without I hope making it necessary for there to be any form of application or registration of those children. We know for a fact that many of those children whose parents are British by descent are themselves born abroad and will in fact be stateless. To quote one case, if the children are born in Italy, they are stateless until they can apply for Italian nationality, if they wish, after a period of 10 years. To put it another way, the way that concerns many of us, grandparents in this country today will find that their 46 grandchildren born abroad will not be British and many of them, as I have said, will be stateless. The grandparents may have never left the shores but their children, their sons and daughters, of course would have to have been born abroad. What we are endeavouring to do is extend British nationality to the first generation of children of citizens by descent, and to do that without any reference to registration or application in any way. The second of these amendments therefore makes that point.
§ In the third amendment we deal with the situation of those children who perhaps are sent from their homes abroad, where their parents are working, to this country for educational purposes. This happens in thousands of cases where the parents feel—and they themselves are British, perhaps by descent—that their children should be educated here, which we feel is natural and understandable. Those children, if the amendment in our name is approved, having stayed in this country for a period of three years before they reach the age of 18, would become British citizens.
§ The fourth amendment deals with the stateless child. We feel it wrong that a British child—and we regard them as British children—born from British citizens by descent, should be in a position that they are stateless. To take just one example, a child born to citizens by descent in Belgium would be stateless and would have to live a number of years in Belgium before they could adopt Belgian citizenship or nationality, whereas a Belgian child born in the United Kingdom of Belgian parents could become a Belgian citizen overnight although born in the United Kingdom. So we feel that it is discriminatory against the first generation of children born to citizens by descent.
§ These four amendments deal with this position. We are simply asking that the provisions already given to the first generation of children born to parents who are themselves born in this country, known as citizens by descent—the first children of those people—should themselves become automatically citizens of this country. I beg to move.
§ Lord Mackay of Clashfern
My Lords, the result of giving effect to the amendments that the noble Lord has proposed is not by any means clear. If one takes the amendments and applies them to the clause, one finishes with something of this sort:A person born outside the United Kingdom after commencement shall be a British citizen if at the time of the birth his father or mother—(a) is a British citizen by descent and that person is the first generation".That person is the person born outside the United Kingdom. So with the greatest possible respect it appears that the amendments do not achieve the result which is sought for them.
Apart from that, on the substance of the matter, as I understand the explanations that have been given, the noble Lord would wish automatic descent of the citizenship to the second generation by Amendment No. 10. I have already said something about this in relation to an earlier amendment on this subject moved by the noble Lord, Lord Avebury, but one has to bear in mind the fact that the citizenship we are talking about in this Bill is a real citizenship; in other words, it carries with it a right of abode, and therefore it 47 seems a desirable principle to limit the citizenship to those who have some real connection with this country. Accordingly, in the Government's view, a residence qualification is required, and that of course is to be found in Amendment No. 16 which I hope we shall come to in due course.
So far as Amendment No. 11 is concerned, it would allow citizenship to descend overseas without limit on a number of generations, provided that the citizen by descent had lived in the United Kingdom for three years prior to the age of 18. As I have said, we favour a residence criterion which it is more generous than that proposed by the noble Lord because it does not have an upper age limit of 18, but we cannot agree that citizenship should descend indefinitely without any limit on the number of generations. So from one point of view our approach is more generous than that proposed by the noble Lord and from another point of view it is not so extensive—from the point of view of generations. It also seems to us that there are strong arguments in favour of the need for a registration procedure and indeed the amendment originally proposed by the noble Lord, Lord Avebury, had that provision. But, as I understand the present amendment, there is no dependence on any kind of registration procedure and therefore the matter could arise at any stage in a person's life.
So far as the fourth amendment, Amendment No. 12, is concerned, it would enable any child, never mind how distant his descent from someone born here, to be a citizen at birth if he would otherwise be stateless. The Government accept that more must be done for the child born overseas in the second generation to British citizens by descent where a child would otherwise be stateless. Our amendment gives such children a right to registration, whether or not the parents meet a residence requirement which in other cases we think should be met. This amendment, on the other hand, sets no limit on the number of generations to which citizenship may be passed on in this way. Nor is there any registration procedure; and I have mentioned the difficulty about the absence of such a procedure already.
Accordingly, I would respectfully suggest to your Lordships that these amendments, taking them in their substance rather than in their form, are seeking to achieve something which is really inconsistent with the idea of a citizenship which carries with it a right of abode and that the approach which the Government will propose in Amendment No. 16 is very much to be preferred.
§ Lord Aylestone
My Lords, the Minister's answer will bring a great deal of disappointment to Britons living abroad, as one knows from correspondence which most of us have received. Nevertheless, under the circumstances I beg leave to withdraw the amendments.
§ Amendments, by leave, withdrawn.
§ 5.53 p.m.
§ Lord Mackay of Clashfern moved Amendment No. 13:
Page 2, line 42, at end insert ("; or
(c) is a British citizen and is serving outside the United
Kingdom in service under a Community institution, his or her recruitment for that service having taken place in a country which at the time of the recruitment was a member of the Communities.").
§ The noble and learned Lord said: My Lords, your Lordships will recall that during our debates on descent at Committee stage there were repeated pleas made on behalf of people working in Europe, particularly those working in the Community institutions. Although such people would have been covered by the provisions in Clause 3—that was certainly our intention—the Government took note of a very strong feeling that our links with the Community should be accorded more specific recognition in the Bill. In the course of debates on various amendments tabled by my noble friends Lord Bessborough and Lady Elles, and by the noble Lords, Lord Gladwyn and Lord Ardwick, the Government agreed to look most carefully at these matters.
§ The amendment now tabled in fact implements one of the most strongly supported of the changes sought by my noble friends and noble Lords in other parts of the House at Committee stage. It equates British citizens working in Community institutions with British citizens in Crown service or in service designated under Clause 2(3) as closely associated with Crown service. This means that the children of such people will be British citizens automatically at birth. There will be no registration requirement such as there would have been under Clause 3. The children will be citizens otherwise than by descent.
§ The Government came to the conclusion that service in a Community institution could rightly be set apart for special treatment in the way we now proposed. Our links with our Community partners under the Treaty of Rome are very special; quite different in character from the other international organisations of which we are members. One has only to consider the impact of Community legislation by direct effect on our domestic legislation. It can, as your Lordships will know, be a very direct effect indeed. Moreover, service in a Community institution, provided recruitment for the service took place in the Community's territory, is a certain enough criterion to enable citizenship to be transmitted immediately on birth without a registration process. I therefore have pleasure in moving this amendment, and I hope that your Lordships will find it welcome.
My Lords, I should like to take this opportunity to thank most warmly the Government, both on my own behalf, in view of the intervention I made at Committee stage, and on behalf of all those who are working in Community institutions who are British citizens. I know that they will welcome this most warmly and will be extremely grateful for the Government's understanding of their position. The noble Baroness, Lady White, has also asked me to join her name in thanking the Government for this amendment, although unfortunately she is not able to be here today. The Government recognise that discrimination against British citizens working in Community institutions is not to the advantage of those citizens nor to the British Government themselves. whatever complexion the Government may be. Nationals in other member states do have the right to pass on their citizenship regardless of where their 49 children are born and this amendment therefore put British citizens working in Community institutions on the same level as them. This amendment also removes any discrimination between British citizens who may go to work in the Community institutions, whether they be recruited in a member state of the Community or seconded from Government departments in this country. Therefore, this will be of great benefit and a great improvement to the Bill as it stood at Committee stage.
I have only one question to ask of my noble and learned friend, and I need hardly say that this is in no way meant as criticism of the drafting. I should just like to ask how a Community institution is to be defined under the Bill. Will it affect only those Community institutions which are now in existence at the time when the Bill is passed, or will some schedule be appended to include, for instance, the European Investment Bank and a European patent office which I understand has been set up—and indeed any other new offices set up under the auspices of the European Community? In ordinary parlance such new institutions might be accepted as Community institutions but they may not qualify under the Bill as it is so worded. In thanking the Government again most warmly for this amendment and for making this great improvement to the Bill and to the conditions of British citizens working for institutions within the Community, I should be grateful if my noble and learned friend will answer my two questions.
§ Lord Elystan-Morgan
My Lords, we on these Benches welcome this amendment and accept it as something which extends the liberalising provisions of the Bill. The noble and learned Lord Advocate said in the debate at Committee stage on 13th July that it was the view of Her Majesty's Government that British citizenship would carry with it a right of abode and should reflect a real tie with this country; a tie substantial enough to justify the unrestricted right to enter this country freely. Since the European Parliament and, to a large extent, the European institutions constitute a position of "overlordship" in relation to the British Parliament, no doubt that tie is established in relation to those bodies. However, may I enter one caveat? I hope I can do so without the appearance of being too churlish. The amendment refers to recruitment for that servicehaving taken place in a country which at the time of the recruitment was a member of the Communities".I do not know whether the formula of recruitment has ever been judicially defined. I raised this once before in relation to a totally different provision and was given an embarrassingly exhaustive list by the noble Lord, Lord Belstead. If in fact it has not been judicially defined, it seems to me there may well be difficulties of definition. But even apart from that, I apprehend that it is in any event a rather artificial distinction and I respectfully raise the question of whether or not it was necessary to circumscribe the amendment in that particular way. But having said that, the welcome for the general purpose of the amendment is genuine and sincere.
§ Lord O'Hagan
My Lords, I, too, would like to thank the Government in the person of my noble and 50 learned friend the Lord Advocate for this excellent attempt at safeguarding the position of British subjects working on behalf of this country in the institutions of the European Community. I should like to record my own gratitude that the campaign, if that is not too fierce a word to use in your Lordships' House, which was conducted by my noble friend Lady Elles and others, has met with some success.
I should like to ask my noble and learned friend one or two questions to ensure that it will not be necessary to put down further amendments later because of some technical deficiency in the amendment now brought forward by the Government. I should like very much to support the argument put forward by my noble friend about the words "Community institution" and what they mean. Do they mean those institutions which are mentioned in the Treaty of Rome exclusively? Do they mean institutions set up by the Community, such as the European Court of Auditors or the European Foundation for Living and Working Conditions, which have been brought into being since the Treaty has come into effect? Also, does the expression include such things as the information offices of the Community which are spread round the world? Perhaps it would be useful for the House to know whether all these types of Community institutions are, in the Government's view, comprehended in the present wording of the amendment or whether, as my noble friend has suggested, it would be neater and more precise to have a schedule which listed the institutions concerned and which could be updated when necessary.
Although I did not find much to enjoy in the elegance of the churlishness of the comments made by the noble Lord, Lord Elystan-Morgan, on this amendment, I did agree with him in his views on the second part. I think we will be in some difficulty in translating the procedures for paragraph (b) to paragraph (c). I do not myself understand why the question of recruitment in member states is of any importance at all in this amendment. I should like to ask my noble and learned friend this as my second question. Why do we have in this amendment the introduction of the concept of recruitment within the member states of the Communities at the time the person took up the position in question? It seems to me liable to lead to confusion rather than to clarity.
My third question is much more minor. It returns to the phraseology used by the noble Lord, Lord Elystan-Morgan. Why are British citizens considered to be serving "under" a Community institution? I would have thought that "in" or "within" such an institution would have been better. "Under" seems to be somewhat strange terminology and could imply that the weight of these institutions is crushing them out of existence so that they may be in need of some form of artificial respiration. Could we not substitute some slightly less ponderous word for "under" if other amendments are to be made to this amendment, which nevertheless is in itself excellent and for which many of us working in Community institutions are deeply grateful?
§ Lord Avebury
I should like to add just one word to what has already been said in commendation of this amendment. We on these Benches are also very pleased that the Government have accepted the views 51 of so many people put at Committee stage, and particularly those of the noble Baroness, Lady Elles, who deserves a great deal of credit for this happy conclusion, even though some of us might have wished to extend the concession rather wider than simply to use the term "Community institutions", as indeed we tried to do in Committee.
I would only add that there seems to be fairly general agreement that it would have been better to define the institutions in a schedule, as we said in our Amendment No. 30 on Committee stage, so that there could be no doubt whatsoever as to the institutions we were talking about, and then we could perhaps give the Secretary of State the power to add to the schedule as and when institutions change in the future. I do not think the noble and learned Lord entirely covered this point in moving the amendment. It would be helpful to know why the Government chose this formula so that we could then decide whether to accept what we have, which is certainly very welcome, or to try to take the matter a little further on Third Reading by defining "institutions" as suggested.
§ Lord Boyd-Carpenter
My Lords, like other speakers, I very much welcome this modest extension of the benefits of Clause 2. May I look a gift horse in the mouth in two respects?—one regarding a drafting point and the other on a point of moderate substance. The drafting point, which I am sure my noble and learned friend can answer off the cuff, is this. Has the use of the word "Community", without any adjective in front of it, such as "European", and the word "Communities", been made in a statute previously or is it an innovation? It does not appear there is any definition in the definition clause and I wonder whether it might have been more prudent, as indeed is done in a later clause, to preface it with the word "European".
The point of substance is this. Has consideration been given to extending this provision and the manifest benefits of Clause 2 to another category of people who are recruited in this country for service in the Commonwealth? There are a number of people who are recruited in this country for service particularly in the developing parts of the Commonwealth. They are not in general, when in post, in the employ of the Government of the United Kingdom, which would bring them into Clause 2. They are, for presentational reasons, I believe, generally in the employ of the local Commonwealth Government, although very often in practice their pay is found under the Overseas Aid programme. But these are a limited number of particularly admirable people who are doing an extremely good job in the developing part of the Commonwealth. Their loyalty to and connection with this country, in which they were recruited, is at least as great as that of those who serve in the European Community and its institutions.
I know that my noble and learned friend will feel that it is ungrateful, when a concession is made, for that to be used as a basis for urging consideration of a further concession. But it seems to me, at any rate, that there are a number of people working in the British Commonwealth, recruited in this country, in substance though not in form paid from this country, 52 who would seem to be morally entitled to the benefits of this amendment and of Clause 2.
My Lords, I also should like to support this amendment, but I am going to criticise not the amendment itself but what I now think is, perhaps, something quite serious over the whole of Clause 2. I say that because Clause 2 is now creating quite a large community of Britons living abroad who will be able, because they are in the armed services, in the service of the Crown or in the service of the Communities, to have their children born abroad and those children will not be British citizens by descent, whereas anyone who is not in a so-called public service will come under Clause 3 and the children will be citizens by descent. Is that fair? Is it right that children of persons in some form of public service can get away with being British citizens without being British citizens by descent, if they are born abroad, whereas all the rest will not get away?
§ Lord Beloff
My Lords, may I ask for another explanation of the text? Does this refer to children born to these persons while they are in the service of a Community institution, or would it apply to any children born to them subsequent to that service if they were still resident abroad? This is a point that we have to face, because Her Majesty's Opposition is committed to taking this country out of the European Communities, in which case British citizens employed by them would, I think, under the rules of the Community be very likely to lose their posts. On the other hand, they might find it easier, if they were domiciled in some foreign country, to get subsequent employment there rather than in this country, and in the course of that employment children might be born to them. Could we have from the noble and learned Lord an explanation on that point?
§ 6.13 p.m.
§ Lord Mackay of Clashfern
My Lords, I should like to begin by thanking those who have welcomed this amendment and, having done that rather briefly, go on to try to answer some of the questions that have been posed to me. First, so far as the question of "Community institution" is concerned, that is an expression which was defined originally in the European Communities Act 1972, and in the first schedule. In order to set out that definition, one has to begin with a definition of "the Communities", and "the Communities" as defined in that Act means the European Economic Community, the European Coal and Steel Community and the European Atomic Energy Community.
Then "the institution" was defined in this way:'Community institution' means any institution of any of the Communities or common to the Communities".So that is a definition which was set in the framework of the 1972 Act and it has the capacity of being flexible. If the Communities set up a new institution, then it is automatically covered and that is better than having a list which requires to be added to by statutory instrument. Apart from anything else, that requires procedure and it takes time, whereas this definition automatically takes charge of changes of that kind.
53 The importance of the Communities to legislation in this country was recognised in the Interpretation Act. When the Interpretation Act was modernised in 1978, a definition on the same lines exactly as the 1972 Act was incorporated there as being a general definition, saying that in Acts of Parliament generally expressions defined in the Act of 1972 would, unless there was contrary intention, have the same meaning as in that Act. Accordingly, the Interpretation Act recognised that these definitions of the 1972 Act should be general definitions for the purpose of all statutes. So the policy of the Interpretation Act, if followed out, will mean that normally, unless there is some special reason, all that you require to do is to use the phrase which is used in the 1972 Act and it will then have the same meaning as in that Act. There is obvious sense in that, with the flexibility which I have mentioned.
So I hope that that answers the questions that have been put with regard to the definition and I think that most of the examples that have been given of Community institutions would be covered. They are obviously covered if they are Community institutions, but what I mean is that the examples which were given would, I think, be Community institutions under the definition.
So far as recruitment is concerned, one has to remember that recruitment in the United Kingdom is required for the Crown service and that is, perhaps, one answer to the point made by the noble Lord, Lord Spens. Clause 2 gives a certain difference in status to the children of those to whom it applies from children who would have the benefits of most of the provisions of Clause 3. It is obvious that it is not easy to give a precise basis in principle for that distinction, unless one puts it on the basis of links with the United Kingdom. This is an aspect of a link with the United Kingdom in the first instance as the clause originally stood—that is to say, recruited in the United Kingdom—and, because of the extension which we are making for this purpose in this amendment, recruitment within the European Communities' membership.
The definition of the word "recruitment" was, I think, the next matter raised. Obviously, one has to have some limit to this. If you use almost any word it is capable of argument in its application, and I should have thought that the word "recruitment" was as straightforward a word as one could have in this context. I am not aware of a judicial definition of it. Perhaps that is a point on which some further research could be done, in which case I shall be glad to write to the noble Lord on that aspect.
So far as the use of the word "under" is concerned, I should rather think that in its place in this clause it suggests that the weight is not sufficient to crush the parent, because the parent has managed to produce a child while in that situation. But in any case the word "under" is perhaps a slightly more general word than the word "in", and would allow a somewhat greater cover than the use of the word "in".
I come now to the last question with which I have to deal on this aspect, and that is the question raised by my noble friend Lord Beloff about the time at which this applies. One will see from the clause that the time at which the circumstances must be satisfied is the time of the birth. So you look to see what is the 54 situation at the time of the birth of the child whose citizenship is in question. If at that time the parent is in the service of a Community institution, then this clause will apply.
Finally, my noble friend Lord Boyd-Carpenter raised a question about Commonwealth service. The clause does not expressly deal with that point. Certain aspects of it could be dealt with under Clause 2(3) because the Secretary of State may by order, made by statutory instrument, designate any description of service which he considers to be closely associated with the activities outside the United Kingdom of Her Majesty's Government in the United Kingdom as coming within the clause. Certain types of work overseas in the Commonwealth would be likely to be covered by that provision, although not expressly. In other words, a statutory instrument would be required. If somebody found himself working in the Commonwealth outside that provision, the benefit of Clause 3 would probably apply.
That is as far as I can go at this stage in answering that particular question. I hope your Lordships will feel that the amendment should be supported.
§ On Question, amendment agreed to.
Lord Aylestone moved Amendment No. 14:
Page 2, line 45, leave out ("and") and insert ("service in an international organisation of which the United Kingdom is a member").
The noble Lord said: My Lords, the House is grateful to the Government and to the noble and learned Lord for introducing the last amendment. To some extent it takes the sting out of my amendment because it now includes with people recruited for Crown service those people who are working for the EEC. However, my amendment goes slightly wider than that:
service in an international organisation of which the United Kingdom is a member".
§ While British employees recruited in this country may feel very happy if they are working for the EEC, those British subjects recruited in this country for service abroad—in, for example, NATO, the WEU and the United Nations and, as the noble Lord, Lord Boyd-Carpenter, pointed out, for Commonwealth service—may not feel quite so happy. I appreciate that this is capable of being done should the Minister so desire under Clause 2(3). However, I hope the Government will give an assurance so far as these other organisations are concerned—I may not have mentioned them all—that the Government will think of them when drawing up an order under Clause 2(3). I beg to move.
§ Lord Avebury
My Lords, the noble and learned Lord the Lord Advocate mentioned Clause 2(3). He said that it was a matter for consideration how far the Government were likely to go in designating overseas service for this purpose. But when we discussed an amendment of mine in Committee which would have defined the organisations in a schedule the noble Lord, Lord Trefgarne, in his reply gave a very definite indication of what bodies the Government had it in mind to designate, which he said had already been intimated to the Committee in another place. Those were merely the British Council, international organisa- 55 tions to which Crown servants would be seconded in the course of their careers and Her Majesty's overseas civil service. Those were the only three types of overseas service which it was the intention of the Government to designate under Clause 2(3).
I do not know whether I have the wrong impression but I have the distinct feeling from what the noble and learned Lord the Lord Advocate has just said that the Government are still perfectly open-minded about this and are thinking about all kinds of overseas service, including service of the kind to which the noble Lord, Lord Boyd-Carpenter, referred in the amendment which we have just disposed of. This is very important. If it means that the Government have progressed a bit in their thinking since we talked about it in Committee, I am delighted to think that other institutions will be covered under Clause 2(3). However, before we come to a conclusion on either this amendment of the noble Lord, Lord Aylestone, or the next one it is desirable that we should know precisely what institutions or organisations the Government have in mind.
§ Lord Mackay of Clashfern
My Lords, the Government accept that certain employees of international organisations do have sufficiently close and continuing connections with this country to justify being able to benefit, like those in Crown service, from the provisions of Clause 2 of the Bill. The Bill now provides, under the Government amendment which your Lordships have just seen fit to accept, that employees of European Community institutions should be covered by Clause 2. Secondly, as I explained on a previous occasion, it is intended that Crown servants who have been seconded to international organisations in the course of their careers, should be included among those whose employment is designated, under Clause 2(3) of the Bill, as service closely associated with the activities outside the United Kingdom of Her Majesty's Government in the United Kingdom. Those employees too will, therefore, be able to benefit from the provisions of Clause 2 of the Bill.
However, the Government cannot accept that all employees of international organisations who are British citizens have sufficiently close connections with this country and its interests abroad to justify special treatment of this kind. In many cases they will have no closer connections with this country than many other British citizens working, abroad. It therefore seems only right that, like other British citizens working abroad, they should seek citizenship for their children, not under Clause 2 but under Clause 3 of the Bill.
Under Clause 3, if your Lordships see fit to accept our revised proposals, a British citizen by descent will be able to have his or her child born abroad in the second generation registered as a British citizen as an entitlement, provided he or she has been resident in this country at any time during his life for three years. And in the third and subsequent generations the child may be registered under the Home Secretary's discretionary power where there are continuing close connections with this country. In our view, therefore, British citizens working for international organisations overseas should have little difficulty in acquiring British citizenship for their children born abroad under 56 Clause 3, provided they are maintaining a connection with this country.
I believe that the provision in the Bill for the employees of international organisations to secure British citizenship for their children will not give rise to any hardship in the case of children born abroad and will operate more logically and fairly than this amendment would do if it were given effect to as singling out for special treatment employees of international organisations.
I have referred already in this connection to Clause 2(3). Clause 2(3), as I remind your Lordships, applies to descriptions of service which the Secretary of State considers to be closely associated with the activities outside the United Kingdom of Her Majesty's Government in the United Kingdom. I simply referred to that on the last occasion as being irrelevant to the point raised by my noble friend Lord Boyd-Carpenter. I was not suggesting for a moment that the circumstances which he envisaged would necessarily fall within that clause. The institution of the types of service which the noble Lord, Lord Avebury, has referred to—that is, the overseas civil service and the British Council as well as what I have already mentioned—are the only subjects of Clause 2(3) which have so far been identified.
As I have said, it is fairly obvious that Clause 2(3) has to be used with considerable care in view of the point which the noble Lord, Lord Spens, has made: that there is a distinction in this regard between Clause 2(3) and its consequences and the major provisions of Clause 3. Accordingly, one would expect the Secretary of State in making an order under Clause 2(3) to have close regard to the criterion that the service has to be closely associated with the activities of the United Kingdom Government outside the United Kingdom.
§ Lord Auckland
My Lords, before the amendment is decided on, I wonder whether I may ask my noble and learned friend one question. As I understand it, we are talking here about people who are probably on indeterminate service, as opposed to diplomats and others who may be on a fixed term contract. Bearing that in mind, is there any special consideration for those who are not on fixed term contract as opposed to those, as mentioned in this amendment, who may be abroad for several years and may have families while they are over there, because even under Clause 3 I cannot quite see how they are to be protected?
§ Lord Mackay of Clashfern
My Lords, I think that the question does not depend so much upon the particular terms of employment as upon the nature of the connection between the person in question and the United Kingdom. In many cases of course the parents may come back to the United Kingdom, in which case the provisions of Clause 3 would be effective to produce British citizenship for their children. If they have connections with this country by residence in it and our Amendment No. 16 is accepted, then equally they will have British citizenship by descent in the second generation.
So far as I can see, the distinction between people working in international organisations and others is not of itself a relevant distinction for the purposes 57 of these two clauses and that is so whether or not the terms of their employment are, as my noble friend Lord Auckland suggested, indeterminate or for fixed terms.
§ Lord Aylestone
My Lords, in view of the Government's concession on employees of the EEC, it would be churlish of me to continue further. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.31 p.m.
Lord Elystan-Morgan moved Amendment No. 15:
Page 3, line 3, after ("service") insert ("including service with any international organisation,").
§ The noble Lord said: My Lords, the purpose of this amendment, as the House will appreciate, is very similar to the purpose of Amendment No. 14. We take the view that it is wrong that people who dedicate their lives to the service of worthy international organisations should be punished in any way by this Bill. On the contrary, we feel that it should indeed be the privilege and purpose of Government to encourage these people in every possible way. The difference between this amendment and the preceding amendment is not all that considerable, but nevertheless in our submission there is a not insignificant measure of merit.
§ There are no doubt many international organisations of which noble Lords will be aware to which sovereign states do not subscribe as members. Their merit is not affected by that at all. It is the very nature of such organisations that their members are individuals or corporate bodies rather than sovereign states. Therefore the raison d'être of this amendment is to cater for such a situation.
§ We welcome what the noble and learned Lord the Minister has said in relation to the operation of Clause 3 and welcome it as a general declaration of policy for the future. However, I am sure that the House would welcome some indication from the Minister when he replies to this debate as to the pattern of policy which the appropriate Minister will adopt in relation to Clause 2(3). It may well be that it is intended in that provision as well to encapsulate many of the very bodies that we envisage. If that be so I am sure that the House would welcome some indication along those lines at this stage. I beg to move.
§ Lord Boyd-Carpenter
My Lords, I think this amendment really goes too far. The distinction, which the noble Lord, Lord Elystan-Morgan, did not bring out, between this amendment and the preceding one, is that this one covers international organisations of which the British Government are not a member. Admittedly, if one reads it into the clause, "any international organisation" has to be one "closely associated with the activities outside the United Kingdom of Her Majesty's Government". But on a strict reading of this amendment it would cover work under the Warsaw Pact organisation or the Comintern because they are both bodies in which in one sense the activities of Her Majesty's Government are very much involved. It really could not be the intention to go as wide as" any international organisation "— 58 reputable or disreputable, helpful or unhelpful, destructive or constructive, or subversive. Although I have been in favour very much in earlier amendments of extending Clause 2, I think this amendment goes too far and I hope my noble and learned friend will resist it.
§ Lord Mackay of Clashfern
My Lords, this amendment is apparently designed to clarify one aspect of the definitions in Clause 2(3), which clause, as your Lordships know, enables the Secretary of State to designate, by order made by statutory instrument, service which he considers to be closely associated with the activities outside the United Kingdom of Her Majesty's Government in the United Kingdom. This amendment would seek to make it clear that service with an international organisation could be designated in this way, provided of course that the Secretary of State considered that the service was closely associated with the activities outside the United Kingdom of Her Majesty's Government.
But, my Lords, we do not need this amendment to make that point clear. The wording of Clause 2(3) is already sufficiently wide to enable suitable service with an international organisation to be designated under it. Indeed, we have already indicated, both earlier and again today, that among the categories of service we have in mind to designate, is service by Crown servants seconded to international organisations. The provision as it stands is wide enough to cover that type of service, and indeed other forms of service with international organisations, should the Secretary of State decide at some stage that they met the terms of this provision.
We gravely doubt whether this amendment would serve any useful purpose. It would not compel the Secretary of State to designate appropriate service with an international organisation since the designation is entirely at his discretion, though the necessary order is subject to negative resolution. However, we think that the amendment could be misleading. As has been indicated on other occasions, we have it in mind to designate a range of service under this provision, including for instance service with the British Council and service in Her Majesty's Overseas Civil Service. Such service will not necessarily be with an international organisation and it would seem odd to specify one category. Indeed, the point made by my noble friend Lord Boyd-Carpenter about international organisations generally and the types of organisation which could be covered I think serves to emphasise that to single out international organisations for particular mention in this clause could, indeed, be very misleading and open to grave misinterpretation.
Accordingly, in our view it is preferable to leave the subsection as it is. In point of fact the subsection will sufficiently cover any service with an international organisation which properly can be regarded as service of the kind in question. Therefore I would advise your Lordships not to accept this amendment and, in the light of the explanations which I have given, I hope that the noble Lord may feel able to withdraw it.
§ Lord Elystan-Morgan
My Lords, in the circumstances I certainly would not invite the House to divide upon this matter. I am sure the House does appreciate 59 the motivation behind the amendment; it is to give the Secretary of State greater flexibility than he would otherwise have. Many of us feel that there are extremely meritorious international organisations of which neither Britain nor any other country is a member. Surely it is right and proper that the Secretary of State, therefore, should be entitled to consider those within the possible ambit of his designation.
With regard to the point made by the noble Lord, Lord Boyd-Carpenter, it was made I am sure half in jest; he is far too sincere a gentleman to have made it otherwise. There is not the slightest danger of the Warsaw Pact being included within that designation, unless of course one had a Secretary of State who had a bent in that particular direction. In view, however, of the general indications given by the Minister in relation to the policy to be adopted under Clause 3, I do not feel it necessary to divide, and therefore ask leave to withdraw the amendment, but in so doing would urgently ask the noble Lord the Minister to consider the special position of international bodies which, as I say, do not have sovereign states among their members at all, but which this House might well feel should be brought within the ambit of this particular clause.
§ Amendment, by leave, withdrawn.
§ Clause 3 [Acquisition by registration: minors]:
§ The Deputy Speaker (Lord Jacques)
My Lords, if Amendment No. 16 is agreed to, I shall not be able to call Amendments Nos. 17 to 27.
§ 6.42 p.m.
§ Lord Mackay of Clashfern moved Amendment No. 16:
Page 3, line 12, leave out subsections (2) to (5) and insert—
("(2) A person born outside the United Kingdom shall be entitled, on an application for his registration as a British citizen made within the period of twelve months from the date of the birth, to be registered as such a citizen if the requirements specified in subsection (3) or, in the case of a person born stateless, the requirements specified in paragraphs (a) and (b) of that subsection, are fulfilled in the case of either that person's father or his mother ("the parent in question").
(3) The requirements referred to in subsection (2) are—
(4) If in the special circumstances of any particular case the Secretary of State thinks fit, he may treat subsection (2) as if the reference to twelve months were a reference to six years.").
§ The noble and learned Lord said: My Lords, although a fairly warm summer vacation has come between, I am sure your Lordships will not have 60 forgotten that one of the most controversial aspects of this Bill during our Committee stage turned out to be the provisions it contains for British citizens to pass on their citizenship to children born abroad. We have just been discussing Clause 2. Clause 3 was perhaps most controversial in this aspect, in relation to the question of the extent to which citizenship should be passed on beyond the first generation in circumstances which are not covered by Clause 2. Your Lordships remember that Clause 3(2) to (5) with subsections (8) and (9) provided for a process of registration under which British citizens in employment overseas which had connections with the United Kingdom could obtain citizenship for their children born abroad. There was no limit to the number of generations to which such citizenship by descent could be passed in this way. I am bound to say that the attempt made in Clause 3 as it stands to define an employment connection with the United Kingdom was a well-intentioned attempt to provide for the very small number of cases where, given the extension of transmission rights to the female line, people with a genuine connection with this country would be unable to pass on citizenship to their children born overseas. But during our debates at Committee stage we heard many serious and telling arguments advanced against the provisions of Clause 3 as they stand. Perhaps I may be allowed to take up a little of your Lordships' time in mentioning the criticisms which on consideration the Government have found most pertinent.
§ It has been questioned whether employment is really a satisfactory criterion for the passing on of citizenship. Many people believe—my noble friend Lord Drumalbyn made a strong point of this in our Committee deliberations—that people can have strong connections with this country even where they are working for a foreign firm or indeed are not working at all. It is also the case that even where a person is working for a British company overseas the employment may not necessarily involve any close connection with the United Kingdom. Other cogent arguments were advanced in connection with partners and the self-employed. My noble friend Lord Boyd-Carpenter suggested, for example, that if the self-employed could not be incorporated in the framework of Clause 3 then the whole approach of that clause was wrong. My noble friend Lord Geddes also tabled amendments on the question of the self-employed and partners, as did my noble friend Lord Drumalbyn. Various other technical points were raised on the clause, including the necessity for full-time employment, whether there should be power to accept longer periods of unemployment, and so on.
§ I should now like to turn to another aspect. Several of your Lordships found these provisions of Clause 3 rather complicated. The noble Lord, Lord Avebury, asked—reasonably, I think—how a person who was doubtful whether to take a job overseas could have any guarantee that if he went he would be able to pass his citizenship on to any children born to him abroad. Added to the criticism of the clause's complexity, there were those—my noble friends Lord Boyd-Carpenter and Lord Colville were among them—who regarded it as unsatisfactory that the entitlement in Clause 3(2) depended on both the relevant employment and the parent in question having a close connection 61 with the United Kingdom. The phrase "close connection" was not defined in the Bill, and the application of it to particular circumstances could obviously raise difficulties.
§ The Government have considered these arguments very carefully. We have considered whether further tinkering with subsections (2) to (5) of Clause 3 could meet the criticisms raised in Committee. However, we have found it not possible to achieve this satisfactorily to deal with every case. For example, it is not really possible to define "close connection", and this would have meant that the entitlement in Clause 3 would have remained unclear even had we removed the reference to the Secretary of State having to be satisfied that a close connection existed. Again it was not possible to adapt Clause 3 to cover self-employed persons without either giving the self-employed an easier access to our citizenship than would be enjoyed by someone employed by someone else, or leaving cases of children of self-employed persons to be dealt with entirely at discretion. Both solutions were obviously unsatisfactory. Perhaps most important of all, had we tinkered with Clause 3 to meet all the criticisms made during the Committee stage we should have ended up with a provision of horrendous complexity, not only difficult to comprehend but also conferring little prospect of certainty in advance of a child's birth. Almost all your Lordships who spoke on this provision were anxious that in this area there should be clear entitlements, but further tinkering with Clause 3 would have left the position in this respect more unsatisfactory than ever.
§ As I said, we have considered this very carefully and have felt it best to change our approach to this very difficult question. The amendments that we have now tabled—No. 16, and I take with it No. 33—provide a clear entitlement to registration for the child born overseas in the second generation. Application for citizenship must be made within a period of 12 months from the date of the birth, although there is provision in a new subsection (4) for extension of that period to six years if in the special circumstances of any particular case the Secretary of State thinks fit. The requirements which must be met for registration to be effected are that one of the parents was a British citizen by descent at the time of the birth and born to a British citizen otherwise than by descent; or—and this, of course, would be the position in the great majority of cases for many years—a person who became a British citizen otherwise than by descent at commencement or would have done so but for his death. That is in proposed new subsection (3)(b)(ii). Unless the child is born stateless the parent who is a citizen by descent must also have resided in the United Kingdom at any time in the past for a period of three years, although it would be permissible for the parent to have been absent during that period for not more than 270 days. It is a residential requirement basically of three years with reasonable absence.
§ I am sure your Lordships will have noted that this provision gives an absolute entitlement to a child born stateless in the second generation overseas. This is a point which was repeatedly and cogently argued during our Committee stage and the Government do accept that it could happen that the child of two British 62 citizens by descent, both born overseas and in the first generation, could be stateless and that in some cases—in Belgium for example—the child could be stateless even if its mother held the citizenship of its country of birth. It seemed to us to be the feeling on all sides of your Lordships' House that statelessness arising as soon as the second generation born overseas was unacceptable, and, although there are respectable arguments for believing that this is not entirely a problem for which the United Kingdom should find the solution, the Government are prepared, as the reference to statelessness in this amendment demonstrates, to ensure that no one in the second generation born overseas is stateless.
§ That completes the explanation of the effect of these two amendments, but it may be helpful if I briefly refer now to the effect of later, related amendments. We are conscious that there may be cases which are not covered by Clause 3 as we would like to see it amended but where the connection with the United Kingdom is so strong as to merit registration. Clause 3(1) provides, of course, for the registration of any minor at the Secretary of State's discretion and we would propose to use that subsection sympathetically, not only for children born in the second generation overseas who are not covered by Clause 3 as amended, but also for children in the third and subsequent generations born overseas where there are clear and strong United Kingdom links, or compassionate circumstances (for example, possibly, statelessness). It is, however, the case that anyone registered under Clause 3(1) as it stands would be a citizen otherwise than by descent and this seems illogical when we are stretching a point for children who are descended more remotely than the second generation. We are therefore bringing forward amendments to Clause 14 which will ensure that, where a child born overseas is registered and is descended from a British citizen, he shall be a British citizen by descent. That seems only logical and sensible because otherwise a child whose connections by descent are remote to say the least would be in a more favourable position than a child born abroad in the first generation overseas.
§ I hope that your Lordships find the results of the very careful consideration which followed the very full arguments in your Lordships' House to be satisfactory as offering a clear and unambiguous entitlement to registration for children born in the second generation overseas. They meet, to a very large extent, the criticisms of Clause 3 made during our discussions on descent during our Committee stage. It seems to me most unlikely that the people who would have benefitted under Clause 3 because of their employment connections, all the people whom your Lordships would have liked to see covered by Clause 3 because they were partners or self-employed, would not have resided here at some time for a period of three years. That residence qualification is infinitely clearer than the definition of relevant employment and the requirement to show a close connection, which so worried your Lordships before. We believe that these provisions are clear and unambiguous and it is most unlikely that anyone with a genuine close connection with this country would be left out by them. I warmly invite your Lordships to support this amendment, and I beg to move.63
§ 6.55 p.m.
§ Baroness Birk
My Lords, first I should like warmly to thank the Government for the tremendous concession that has been made in Clause 3 as a response to, I think, the pressures and arguments from these Benches and all sides of the House. I am sure that the Minister will not mind if I say that this really is a radical and very pleasing U-turn. I was also delighted to hear that the Government have turned down some of the proposals that they had in mind because of what the noble and learned Lord described as horrendous complexity. With great respect, the Bill seems to me still to be full of horrendous complexity and I am delighted that the noble and learned Lord is not adding to it.
This will, of course, be extremely good news to many children of British parents and the point about "regardless of employment" covers a whole area which caused us, as the Minister said, tremendous difficulty and concern during the Committee stage. It will be very good news to people working overseas as doctors, missionaries, nurses and employees of international charities on third world government projects that they are to know easily where they stand. That is the crux of the matter: people will know their position and where they stand, and for many of them there need be no anxiety about their children's citizenship.
However, there does seem to me to be a problem which I hope the Government will grasp with the same expansiveness. The Minister said that there will be amendments brought forward to Clause 14. This is the first that I have heard about that, and I am wondering whether they will cover the area which I feel is still being left out and which is not completely balanced. The Government would find it hard to face people who have been British all their lives and whose parents and grandparents are British, who are now to become British overseas citizens and who under the Bill at present will have no right at all to become British citizens, not even British overseas citizens. How can we then say to them, "Our aim is to define more closely those who belong to this country. Therefore, we are giving our citizenship with full right of abode to children who, in many cases, will have a right of abode and citizenship elsewhere as well, but you and your children have no right of abode in our national territory even if you have no right of abode anywhere else?" That is not to criticise what has been done as regards Clause 3, but to hope that some further expansion will take place in other parts of the Bill.
It comes down very largely to what the Minister himself confessed when he was speaking just now—the difficulty of defining the phrase "close connection" The Bill is meant to rest upon a clear concept of close connections, and yet what these connections really constitute was unclear at the beginning and, even on the Minister's own admission, is even now still unclear. That is the central point of the difficulty. So we have at the moment on the one hand a man in Kenya who, say, opted at independence to remain British, who chose British nationality deliberately when offered the chance to change, or who was born British and brought up in British style schools and traditions, who is said to have no close connection. On the other hand, 64 a child born abroad of parents born abroad of grandparents born in Britain was said in March to have no close connection but now is said to have one. This is a very good change but it does, I think, illustrate the difficulty of finding a definition which will apply generally.
Therefore, a child born to a British mother abroad before the Act comes into force will not have the close connection, as I understand it, required for immediate citizenship, but such a child born thereafter will do so. A child born just before commencement in Britain will have a close connection, but a child born in Britain after it will not necessarily have it—he may or he may not. There really is not very much logic as regards these connections. It is a very difficult concept and I think that it has proved almost impossible for the Government to be able to sustain it, because is there, in fact, any consistent principle which can be observed at all? I would much prefer to see a guiding principle at work that insisted upon safeguarding the basic rights of all those who are already British at commencement and especially those who have no other nationality, a principle of ensuring right of abode somewhere, right of transmission to children who might otherwise have no nationality, and for it to apply to all existing British nationals.
It is on the basis of that principle that we welcome the present amendment which will, without any doubt, help many people who are British now to feel security about their children and children who are yet unborn. However, it is on that basis, and not on a churlish basis of niggling the Government, that we beg the Government to reconsider the later clauses of this Bill with the same liberality and the same willingness to undertake radical change at a late stage of our deliberations as they have shown on Clause 3. From what the Minister has said, although I have not had a chance to delve into it, I believe that the Government are going part of the way in the later stages of the Bill. On this particular amendment, which seems the right one on which to discuss the whole principle about which we are concerned in this Bill, I have taken the opportunity to have a further look at this matter, and perhaps tonight we could be given some idea of what will be produced, which will now have to be on Third Reading.
§ Lord Avebury
My Lords, I want to say a word or two of welcome for this amendment, because this is a very significant concession which the Government have made and one which enormously improves the Bill. It makes it more comprehensible and, above all, more definite. My primary criticism of Clause 3 as it stood when we looked at it in Committee was, as the noble Lord reminded us, the difficulty that people would have in knowing, when they were going abroad, whether or not children born to them overseas would qualify. Now the test is a fairly simple one. The parent in question must demonstrate that at any time prior to the birth of the child he or she has lived for three years in the United Kingdom, and the children must be registered within 12 months of the birth, unless the circumstances are exceptional.
As I have already foreshadowed, we very much welcome this proposal because it follows almost exactly 65 the proposals that we made after the previous Administration published their Green Paper on Nationality in 1977. In fact, in July 1977, when we issued our reply to that Green Paper under the title Who's Your Father?, in discussing the transmission of citizenship to the second generation this is what we said:Some of us think there is not much justification for extending the right to transmit citizenship through descent to the third generation, when the second generation has lived entirely overseas. The rule should be that a citizen born overseas should be able to transmit citizenship to his children if and only if he has been settled in the UK at some time prior to the birth of the child ".In other words, we accept that there should be some qualifying period, whether it be three years or whatever, during which the parent in question must have lived in this country in order to demonstrate that he still has the connection. Then we went on to say:This means that, for instance, second generation emigrants from Britain to Argentina who retain British Citizenship would not normally be able to register their children as British Citizens".I also welcome what the noble Lord the Minister has said about the use which will be made of Clause 3(1). I think that everyone must agree that this is a really significant and substantial improvement to the Bill, which owes much to the discussions that we had in Committee.
The Lord Bishop of Rochester
My Lords, I should like to welcome this amendment and to thank the Minister for its clarity and for the reassurance that it will give to a great many people. He may remember that in Committee the right reverend Prelate the Lord Bishop of Southwell, raised questions about a small group of people—those who were missionaries and who had children born overseas—having been born overseas themselves. I believe that he has had further correspondence on this and I assume that he is of a mind that this point has been met. It seems to me to be so.
§ Baroness Elles
My Lords, in warmly welcoming this amendment to the Bill I should like to make three brief points. First, the comprehension of the Government of the very real worries and concerns of British citizens abroad has been recognised; and I hope that the maximum press and publicity is given to this, not only in order to show that the Government have shown comprehension but also to allay the fears of those who have written in significant numbers to those of us who have taken part in these debates and those who have, through organisations, been writing to us. I think that it is certainly worth recalling to your Lordship's House the letter of the leader of one organisation, who wrote saying:At last I know that effective democracy really can work and that the Government have listened to the arguments put forward to them and been ready to make this radical change to the Bill ".Finally, I would particularly like to welcome the sentence within the clause which relates to statelessness, that no one can now be born stateless if born to a British citizen by descent. This is a vast improvement to the Bill, and will be warmly welcomed. It fulfils and answers the criticism which was made in the European Parliament in the Malangre Report. I very much hope that the Government will take the 66 trouble to write to the President of the European Parliament informing him of the step that the Government have taken. Therefore, I hope that this House will warmly support the amendment and that it will also be warmly supported in another place.
My Lord, I welcome this amendment enormously. I think that it goes very much further than we had reason to expect and it certainly solves the problem of the self-employed, which was one of the matters about which I was worried. In fact, I now see no reason why I should move Amendment No. 31, so I give notice that I shall not be moving that amendment, which was drafted to try to deal with the problem of the self-employed. I also welcome the amendment because it has done away with the qualification of employment, which was a matter which worried many of us. This qualification is so very much better, although it is wider. Nevertheless, I hope that the amendment will be agreed to.
§ Lord Geddes
My Lords, I, too, should like to join the plaudits to the Government Front Bench for the considerable courage that they have shown in tabling this amendment in response to the very long and serious debate which we had in your Lordships' Committee in July. There are just three points on which I should like clarification. As I understand the combination of subsection (3)(a) and (b)—and to an extent this picks up the point made by the right reverend Prelate the Bishop of Rochester—the acquisition or right to British citizenship by descent is therefore limited to three generations. That is my first question.
The second one relates to subsection (3)(c)(i) and (ii). Is it a correct assumption that that period of three years' domicile can be at any time in that parent's life? In other words, could it be from that parent's birth to the age of three years? My third question to my noble and learned friend the Lord Advocate is as follows: Can he explain how, if indeed it is possible, under Clause 3(2) and (3) a British citizen by descent could upgrade his nationality from that situation—that is, by descent—to otherwise than by descent? I would stress that at this stage these are only questions and that I most warmly welcome the amendment tabled by the Government Front Bench.
§ Lord Howie of Troon
My Lords, I should like to add briefly to the congratulations which have been offered from all sides of the House to the Government on this change in their attitude. I do so because since the earlier debates during the Committee stage I have been approached by many civil engineers and by the Institution of Civil Engineers voicing the worries which many members of that profession have felt. As noble Lords know, traditionally civil engineers have worked abroad in a wide range of capacities, and sometimes for very nearly the whole of their working lives. They felt that the Bill, as originally drafted, afforded certain dangers to their children. It seems to me that the amendment which has now been moved, and which I hope the House will agree to, removes those fears.
For a short while I was a little worried about the three-year qualifying period of residence, but if I understand the speech made by the noble Lord the 67 Minister in opening this debate, that three-year period can take place at any time during the life of the parent. If that is so, that would remove my fears, and consequently I welcome the amendment.
§ Lord Drumalbyn
My Lords, as I troubled the Front Bench quite a lot on the earlier stages, I think it would only be polite if I were to say how very pleased I am at the way in which the Government have dealt with this difficult problem, and have shown a great deal of ingenuity and goodwill in it. I cannot say that I am wholly satisfied with this, and I would rather hope to have an opportunity of reading exactly what my noble and learned friend has said, particularly on the question of continuation from one generation to another. I did not quite understand what he said about that.
My noble friend Lord Geddes also asked for further clarification. Perhaps we can look at this matter in greater detail when we come to the question of descent under Clause 14. I do not want to delay the proceedings at this moment, but if my noble and learned friend chooses to give us a further explanation on this matter I should be delighted. I should like to say how pleased I am and to congratulate both my noble friends very warmly on the outcome.
§ Lord Mackay of Clashfern
My Lords, on behalf of the Government I am extremely grateful for what has been said in welcoming these amendments. The position of my right honourable friend the Secretary of State and my honourable friend the Minister of State with particular responsibility in this area has, I think, always been that this is a difficult matter and that all the arguments would be carefully listened to and considered. Therefore, there is nothing that I think can properly be called a "turn"; it is simply a natural result of the process of consideration which we had envisaged.
So far as the other matters that have been raised are concerned we shall certainly note the suggestions that my noble friend Lady Elles made for publicising this further. I should like to clarify a little of what I said earlier. I was referring to amendments which have already been put down to Clause 14 to have the effect which I indicated. I am not thinking of anything further than that. What we are trying to do is to make very specific the test of close connection in this case by making it three years' residence.
May I mention at this point the matter which has concerned the bishops and was mentioned this evening by the right reverent Prelate the Bishop of Rochester in relation to missionaries. The difficulty about missionaries was whether they were employed because of their special standing. That point has certainly been dealt with because the whole criterion of employment has been taken away. It is of course true, as my noble friend Lord Geddes has said, that one of the consequences of the simplification is that the right to transmit is limited to the third generation in the sense that he mentioned; that is to say, if one looks at the new clause the father or mother of the child, the parent in question, has to be a British citizen by descent at the time of the birth, and the father or mother of that parent has to be a British citizen other 68 wise than by descent; that is to say, generally speaking, born in this country. What we say is that beyond that it is impossible to deal with the matter by criteria. That, in a sense, is the difficulty of the old approach, and our view is that for anything more remote than that in the generations the correct approach is through the discretion of Clause 3(1).
The three-year period is at any time during the life of the parents, and in particular it could be the first three years of that parent's life. So far as upgrading is concerned, no upgrading is proposed by the Government. This matter is the subject of a special amendment by my noble friend Lady Elles, and perhaps a detailed consideration of it could be appropriately left until that amendment is called. The understanding would be that where a child was to be registered under the provisions with which we are dealing just now, the parent would be told that if there was any prospect of the parent coming back to live in the United Kingdom the Clause 3(6) alternative would be open and the parent might prefer to go for citizenship otherwise than by descent under that provision in due course, which would no doubt be the right thing to do if the parent was reasonably certain that he was to return to the United Kingdom.
I should also like to take this opportunity of thanking the noble Lord, Lord Howie of Troon, for bringing to our attention the difficulties that civil engineers particularly were finding with the old provisions. As he said, civil engineers have been particularly good at carrying the United Kingdom flag overseas, and we therefore are glad that the amendments that are proposed meet the difficulties that he envisaged, and we should like to thank him. In the light of all that has been said, I hope that I can with reasonable confidence ask your Lordships to pass this amendment.
§ On Question, amendment agreed to.
Lord Belstead moved Amendment No. 28:
Page 5, leave out line 2 and insert ("the following requirements are satisfied, namely—").
§ The noble Lord said: My Lords, this amendment is consequential on Amendment No. 3. I beg to move.
§ On Question, amendment agreed to.
§ Lord Denham
My Lords, I think that this is probably a convenient moment to adjourn for dinner, and I would suggest that this Report stage be adjourned until a quarter past eight.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.17 until 8.15 p.m.]
Lord Belstead moved Amendment No. 29:
Page 5, line 18, after ("application") insert ("or his father and mother were legally separated on that date").
§ The noble Lord said: My Lords, this amendment stems from a debate we had in Committee on an amendment moved by my noble friend Lady Elles. That amendment was aimed at the conditions under which a child born overseas to a British citizen by descent, and not acquiring our citizenship, would have an entitlement to registration if he or she came to this country to live. Clause 3(6) requires that the child 69 must reside here with both parents for three years, but subsection (7) relaxes this requirement where one of the parents is dead or the couple are divorced. That is what "terminated" means in subsection (7); it does not cover legal separation.
§ My noble friend Lady Elles wished to extend subsection (7) so that it covered a child living here with one parent where his or her parents, though not divorced, were living permanently apart. The word "permanently" caused some difficulty to my noble friend Lord Boyd-Carpenter and, as he pointed out, it would have made it difficult to operate the amendment because it would hardly be possible to say with certainty that any separation was going to last for ever. But my noble friend Lady Elles in winding up the debate did make it clear that she had in mind primarily people who were judicially separated but not divorced. She asked that the point be reconsidered by the Government. We have reconsidered it and this amendment gives effect to what my noble friend Lady Elles wished. I beg to move.
§ Baroness Birk
My Lords, the Minister will remember that in that debate, in which many of us took part, I argued—I do not have the precise reference to hand—that the provision should be rather wider so that it applied to a separation which might not necessarily be a legal separation; one parent could have deserted the other and his or her whereabouts might not be known; one parent might have to remain in employment overseas and the other parent might have brought the child to the United Kingdom and decided more or less to settle here. I find the provision restrictive, although the Government have gone some way to improve it. But it remains rather restrictive and, while I have not tabled an amendment, perhaps the Minister will say whether this would be normal practice in cases not covered by legal separation. Also, will he define exactly what is meant by "legal separation"? Does it mean a judicial separation, a separation which has been effected in a magistrates' court, or must it be a separation through the High Court or divorce court? We should be clear about that in the first instance.
Secondly, in this context the question of the exercise of discretion is important. The discretion could be exercised favourably if a parent in a situation which is not covered by whatever is meant by "legal separation" comes to this country and applies to register the child under the discretionary provision in Clause 3(1). That would certainly allay some of my anxiety about this.
I should also like to ask the Minister whether, where a parent who comes here alone with a child for three years and tries to register the child under subsection (6) but is refused on the grounds that the parents are both alive and are not divorced or legally separated, the standard letter from the Home Office should emphasise that it is possible to apply under subsection (1); that is, provided the Minister can assure me that in these cases subsection (1) can be invoked. To have on the record an undertaking from the Government to that effect would be very helpful and I should then feel happier about the Government amendment. It would be very helpful to all those organisations and individuals who would be advising the parents on these matters and who would want to 70 establish clear guidelines for the future administration of the law. I should be most grateful if the noble Lord could reply to those points.
§ Lord Belstead
My Lords, with the leave of the House I should like to reply to the noble Baroness, Lady Birk, who spoke to the amendment in Committee, though she wanted to see made a very much wider point than did my noble friend Lady Elles, whose point we are meeting in this amendment. My reply to the noble Baroness, Lady Birk, is that in the case of a separation which is not a judicial separation it is right that both the mother and the father should give consent to the application for registration. If they cannot do so under Clause 3(6), perhaps because one parent is living in the United Kingdom with the child, while the other parent is living abroad, then indeed they can apply for registration under Clause 3(1). The noble Baroness asked me the meaning of the words which we have used in the amendment where we talk about parents being legally separated. We mean a separation that is formally recognised in law.
§ Baroness Birk
My Lords, with the leave of the House I should like to thank the Minister very much for what he has said. That is very satisfactory, and f am very pleased that he has confirmed the situation.
§ On Question, amendment agreed to.
§ 8.23 p.m.
§ Lord Drumalbyn moved Amendment No. 30:
Page 5, line 25, after ("them") insert—
("( ) if his father and mother both died before that date, the reference to his father or mother shall be read as a reference to his guardian, provided that his guardian is a British citizen or settled in the United Kingdom;").
§ The noble Lord said: My Lords, I moved a similar amendment in Committee and I was supported by several noble Lords, including the noble Baroness on the Front Bench opposite, but I regret to say that my noble and learned friend Lord Mackay of Clashfern advised against its acceptance. We shall now try it again. Subsection (6) entitles a person born outside the United Kingdom to be registered as a British citizen on application made while he is a minor if his father or mother was a British citizen by descent at the time of his birth. It adds two other conditions. The first is that the child, the father and the mother were in the United Kingdom in the three-year period ending with the date of application, and that the person in question was not absent from the United Kingdom for more than 270 days in all during that time. The second additional condition is that the consent of the father and the mother to the registration has been signified in the prescribed manner.
§ The question with which the amendment seeks to deal is: what happens if the father and mother are no longer alive? It is easy to provide, as do paragraphs (a) and (b) of subsection (7), that if one of the spouses has died, the conditions can be fulfilled by the other as to both the three-year period and the consent. But if neither of them is there to spend the three years in the United Kingdom up to the application for registration, and neither of them is there to give consent to 71 the application, who better to do so than the guardian, if there is one?
§ When we discussed this matter in Committee my noble and learned friend pointed out that a particular guardian would not necessarily have any sufficient connection with the United Kingdom. Well, the connection with the United Kingdom so far as what is expressed in the Bill is concerned—though no doubt something can be taken into consideration—is no longer in the Bill. To get over that difficulty it was suggested to me through the kind offices of the noble and learned Lord opposite that I should add to my amendment the priviso that a guardian could give consent to registration only if he was himself a British citizen or settled in the United Kingdom.
§ My noble and learned friend's second objection to my previous amendment was—I paraphrase—that our nationality law does not provide that a child can derive any entitlement to citizenship otherwise than from a parent. But in this case the child would derive his entitlement from the deceased parents, or at least from one of them by virtue of his or her being a British citizen by descent, under this subsection. The other two conditions, contained in paragraphs (b) and (c) are impossible of fulfilment if both parents are ex hypothesi dead, but in other parts of the Bill we find a condition relating to a father or a mother of a person in question becoming a British citizen otherwise than by descent at commencement, or who would have become one but for his or her death. So there is a parallel there. The fact of the parents' death does not frustrate the entitlement. My noble and learned friend thought that that would be better dealt with by the exercise of the Secretary of State's discretion. But what I am not clear about is, how could the request for the exercise of the discretion come to him when the child is abroad, presumably following the parents' death?
§ I would ask your Lordships to bear in mind that we are considering the case of a boy or girl who was residing abroad with his or her parents when they died. The natural thing, especially if both the parents were British citizens in a strange land but not British born, would be for the child to be brought back to the United Kingdom and for application to be made for him for registration. For that purpose someone would have to put in an application for an immigration certificate; and should it not be the guardian in this country? If so, should not the same person, acting in loco parentis, also apply for the child's registration as a British citizen? That is the case for the amendment, and it seems to be a reasonable, humane and simple one. I am sure that my noble friend has given it his usual careful consideration and I shall be interested to hear what he has to say about it. I beg to move.
§ Lord Belstead
My Lords, we discussed an amendment moved by my noble friend Lord Drumalbyn in Committee, but there is a difference between my noble friend's previous amendment and this amendment; namely, that under the present amendment the guardian would have to be a British citizen or settled in the United Kingdom. Since the kind of case that my noble friend puts before your Lordships' House is bound to attract sympathy, perhaps I should begin by saying that I am genuinely sorry that we find 72 difficulty with the amendment, because I appreciate the problem that my noble friend puts forward. However, I think that there is a solution to it.
First, I should like to refer to the difficulty as we in the Government see it. We have again carefully considered this matter and, as I say, it is true that the amendment now provides that the guardian shall be a British citizen or settled in the United Kingdom, and therefore the guardian would have personal links with this country. But we continue to feel that it would be wrong to depart from the principle that a child should derive an entitlement to citizenship only from a parent. To rest an entitlement to citizenship on the relationship between a guardian and a child would, we believe, lead to obscurity and doubt.
If I may explain what I mean by that, the link is, after all, a very different one from that of parent and child. The description "guardian" does not have one certain meaning. It can mean someone appointed by a court to care for the child—and the court can do this when either or both of the parents are still alive—or it can mean a guardian appointed in a less formal way. It is simply not possible in these circumstances to be satisfied that a child who is in the care of a guardian necessarily has a sufficiently close relationship with this country to justify conferring on the child an entitlement to our citizenship.
Having said that, I think there is a solution, and it is the one which was put forward by my noble and learned friend the Lord Advocate. It is that such cases should be dealt with under the discretionary power to register minor children which is available under Clause 3(1). Incidentally, Clause 3(1) provides for an application to be made; it does not specify by whom the application has to be made. Clause 3(1) will enable all the relevant factors to be taken into account. If, for instance, a child had been living here for three years with his or her guardian, separated from the parents perhaps by their deaths—in other words, the parents had died—then I am absolutely certain that, as is the case now, discretion would be exercised in the child's favour. Indeed, I take this opportunity to undertake that we shall do all we can to relieve hardship in the sort of sad case which my noble friend Lord Drumalbyn has in mind in moving this amendment.
I hope that in view of this undertaking my noble friend may feel able to withdraw his amendment. The sticking point so far as the Government are concerned is solely the linking to an entitlement of what is an uncertain relationship between a guardian and a child: uncertain not because guardianship is something which is not admirable—of course it is—but uncertain because, as I have sought to explain, the description "guardian" is susceptible to different interpretations.
§ Lord Avebury
My Lords, may I ask the noble Lord the Minister a question before he sits down? He has just given what I think is a most valuable undertaking, that in cases where the child is in the United Kingdom and a person makes an application on his or her behalf, the Secretary of State will invariably exercise his discretion to register the child as a British citizen. But it was very noteworthy that he did not extend this to the case to which the noble Lord, Lord Drumalbyn, was addressing himself; that is, of the child who is orphaned in a foreign land and who is not qualified 73 under the immigration rules to re-enter the United Kingdom. Is the noble Lord's guarantee extended to those children, who are stranded overseas and whose necessity for the privilege of British citizenship may be that much greater than that of the orphan who is in the United Kingdom itself?
§ Baroness Birk
My Lords, before the Minister replies there are a couple of points that I want to raise with him. First, I am really quite surprised that the Government have not found it possible to accept the noble Lord's amendment, which for my part was rather too restrictive anyhow. But as to the question of the word "guardian", if the guardian is in loco parentis it seems to me that that defines it quite closely. As in some of the cases in these circumstances it can be so important for the child, it seems a pity that it has to rest entirely on a discretionary basis, although I hope—and I accept the Minister's word—that that would work for the benefit of the child.
Another point that is worrying me is that having, by his original amendment in Committee, added the words that the guardian should be a British citizen, I can see that there could be some cases where the parents were killed in a car crash or a plane crash, say, where both died together, and where the obvious guardian for the child, in the child's interest, may not he a United Kingdom citizen but may be a foreigner. Can the discretionary powers be used there? Because it would seem wrong for the sake of the child—and this is what I think we should be looking at primarily—for him or her to have foisted on them a guardian who is not the best possible and the right person in the circumstances, or, it may be, the closest relative.
§ Lord Belstead
My Lords, I have been asked about children who have been orphaned overseas. Of course, it would still be possible to consider these children under Clause 3(1), although obviously the cases would be more diverse. The noble Lord, Lord Avebury, asked me for an absolute undertaking. Of course, one of the things, among others, which has always been taken into account in Clause 3(1) cases is where the child is living and where the child is likely to live. The answers to those questions are not decisive, but those are things which are taken into account. Therefore, where the child was not even in the country but was already living abroad, obviously the Secretary of State would want to know rather more.
But having said that, which I think is a direct answer to the noble Lord—and I think I answered the noble Baroness in the first words that I spoke—I do not detract from what I said to my noble friend at the very end of my speech; namely, that I undertake that we shall do all we can to relieve hardship in the sort of sad case which I know my noble friend Lord Drumalbyn has in mind in moving this amendment.
§ Lord Drumalbyn
My Lords, I am very grateful for the spirit in which my noble friend has replied to this amendment. One could go on elaborating the sort of cases which could arise. I fully accept his assurance on the question of dealing with a case where the child is in the United Kingdom, although perhaps he would consider a little further the question whether he would deal with such a case, as I understood him to say, 74 only if the parents had been here for three years. It could easily happen that the child was orphaned before the three years were up. I take it that that is the sort of case in which the discretion would be used.
But the point I was trying to make was that if the parents were still abroad at the time they died and had not had the chance to start the three-year period in this country it will be a difficult matter to make contact with the child; and the value of getting the matter into the Bill is that any legal advice which is sought on his behalf by whoever is on the spot would be there to be seen in the Bill. It seems to me that if in any way it is possible to fill this gap it would be valuable. My noble friend has been very good so far, but I would ask him to look at this again to see whether there is any way in which something could be put into the Bill to cover this point and to act as a guide, at any rate, to anybody who has to take charge of such a case on the spot and bring it to the attention of the Secretary of State. I do not propose to divide the House on this amendment, but I would ask my noble friend to do what I ask. In the meantime I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 8.39 p.m.
Lord Avebury moved Amendment No. 30A:
Page 5, line 25, leave out from ("them") to end of line 27.
§ The noble Lord said: My Lords, we come now to what I consider to be an extremely important amendment which deals with the position of illegitimate children who are born overseas, and I want to use this amendment to illustrate the general problem of illegitimacy which we find throughout the Bill, this amendment being the first reference we have had to it, I think. If a child is born outside the United Kingdom, then under subsection (6) an application can be made for his registration as a British citizen while he is a minor and the Secretary of State registers the child if he is satisfied that at the time of the birth the father or mother was a British citizen by descent, and so on. But this is qualified in subsection (7)(c) by the proviso that if he was born illegitimate all those references in subsection (6) shall be read as referring to his mother and therefore the illegitimate child born overseas can receive citizenship only through his mother and not through his father. To take an example, supposing that the father is British, the mother American and the child born in France, then an application could not be made to the Secretary of State for the registration of that child as British under the provisions of subsection (6).
It may be convenient if we take with this amendment my Amendment No. 149 in Clause 50 that adds some words to a definition provision so that it would then read:
For the purposes of this Act … the relationship of father and child shall be taken to exist only between a man and a legitimate child born to him "—
and then I propose to add:
or between a man and any child recognised as born to him by a court of law ".
In this manner, I hope to overcome the difficulty that has been faced in discussing the problem of the illegitimate
child that one is not always certain who was the father and that there must be, to satisfy the requirements of the Act, definite proof of the identity of the father if he is the parent through whom the citizenship is claimed.
This matter was discussed at some length in the other lace in the Committee and Report stages and it seems that the Government have not wholly dealt with the arguments but have insisted that we should wait until the Law Commission reports on the general problem of illegitimacy and that they will not proceed on the basis of the Interim Working Paper No. 74, issued by the Law Commission and entitled Family Law: Illegitimacy, even though this gives some fairly positive guide to the way in which the Law Commission is thinking. The Law Commission says in that working paper:
We think that steps should be taken to remove that discrimination against illegitimate children. It seems to us that the argument for doing so is considerably fortified by the fact that such a change in the law would simultaneously solve the sexual discrimination problem which would arise if the illegitimate child could inherit citizenship from his mother only".
So that the Law Commission has already endorsed the principle of this amendment and it is a question of whether at this stage we can, without awaiting their final report think of a means of transmitting citizenship through the father which will satisfy the Government that proper evidence of paternity has been given.
§ In answer to Mr. Paul Lewis, Deputy Director of "One Parent Families", who is corresponding with the Minister's office on this problem, the reply was given by the Minister's office that in the case of the illegitimate child, his official birth certificate identifies the mother but difficulties would arise over establishing his paternity. In fact, in half of all the births outside marriage the father's name appears on the birth certificate and while that constitutes no proof of paternity it would be strong evidence in court proceedings. That, to me, indicates the way in which we should proceed here. We should limit ourselves to the cases where a child is recognised by a court of law as being the child of a particular father. The evidence has had to be presented to the court and they have accepted it and, therefore, it should read across into the provisions regarding nationality.
§ Under existing law, the amendment would enable a child born outside marriage to inherit the British citizenship of his father where affiliation proceedings had been taken and the father's identity had been established. Then, in future, if the law is changed (as I think it is likely to be changed) to enable the court to make a declaration of paternity independent of any other action—and that is what I imagine the Law Commission would be likely to propose—it would extend the group of people whom this amendment would help.
I discussed this matter with Mr. Paul Lewis, Deputy Director of "One Parent Families". He writes to me:
We support the amendment as an important step towards equality of treatment for children born outside marriage. It would help parents where affiliation proceedings had been taken and paternity admitted or established. However, it would not so obviously help in cases where the parents though unmarried lived together and shared their lives and money. To be helped by your provision the mother would have to go to court to claim maintenance for the child from the father even where this was gladly being provided. These drawbacks do not detract
from our support for the proposal as a first step which the Government may accept".
I should have liked to go that further step and enable the children of such parents as those described by Mr. Paul Lewis, to have qualified where the mother and father have a joint life and evidence of this could be provided to the Secretary of State. That should be sufficient for the grant of nationality. But I wanted to put down something which would be definite and unambiguous and which would overcome the arguments which were advanced at the Committee and Report stages in another place.
§ I hope that the noble Lord will agree that the amendments are of such a restrictive nature as to be acceptable and that we do not need to wait until the Law Commission produces its final report on this longstanding and difficult question of illegitimacy. I beg to move.
§ Baroness Birk
My Lords, I should like to support the amendment moved by the noble Lord, Lord Avebury, especially looked at in conjunction with his Amendment No. 149 which means recognition by a court of law. I agree that this is probably rather a clumsy way round, but I also agree it is probably the only way in which to deal with this at the present time. As I sit as a magistrate I know that people come to court with affiliation or maintenance orders where they are unmarried; and that is certainly one way to establish paternity. Even in a case where, for the time being, if they are living together amicably but are not married they wanted to come to court to establish paternity for this particular purpose, there is no reason why the magistrates should not, as in other cases, make a token 5p a year maintenance and keep the case open, so that there is no pressure on Magistrates to have to allocate sums of money which are not wanted in particular cases.
In a Bill like this, I think it is a step forward in trying to get (as in other places in the Bill there are many attempts to get it) greater equality between the sexes. In this case of illegitimate children, it should be possible to establish their status through the paternal line as well as the maternal one. I have particular sympathy because I suspect that one of the major categories of statelessness is that of children who, as the Bill now is, could only be established through the mother, who may find it difficult; whereas if it can be done through the father it would give them much greater opportunity for some form of citizenship.
§ Lord Belstead
My Lords, the noble Lord, Lord Avebury, has moved Amendment No. 30A and has also spoken to Amendment No. 149. Although I think that your Lordships may agree with a great deal of what the noble Lord and the noble Baroness, Lady Birk, have said. I think the effect of both these amendments would be contrary to what the noble Lord intends.
The first amendment would remove that paragraph of Clause 3(7) which states that, in the case of illegitimate children, all references to the mother and father in Clause 3(6) shall be read as references to the mother 77 only. Clause 3(6) is the returning home clause, when you come home with your family and then, after three years, the children have a right to be registered as British citizens. My interpretation is that it would mean that any illegitimate child seeking to claim an entitlement to citizenship under Clause 3(6) would, like any legitimate child, have to have lived in this country for three years with both his mother and his father—unless one of them had died—and that he or she could not he registered unless both the mother and the father had consented to the registration.
I simply say that that is what I think would be the effect of the first amendment and f do not think that that is the effect that the noble Lord, Lord Avebury, intended. The noble Lord went on to make it clear that he wished to speak also to Amendment No. 149 which seeks to extend the definition of father in subsection (9) of the interpretation clause, Clause 50, to cover not only the relationship between a man and any legitimate children born to him, as at present, but also that between a man and any illegitimate children where he has been recognised as the father of those children by a court of law.
Here again there are difficulties. Like the noble Lord, the Government are sympathetic to the problems of illegitimate children and, clearly, if any changes were made to their general position under the Bill then this would have to be reflected in suitable amendments to this subsection. May I repeat that the Government have already given an undertaking that we will look at this particular subsection of the Bill in the light of the Law Commission's final report on illegitimacy when it comes to be received. But even in the circumstances in which we find ourselves at the moment this amendment would not be satisfactory. It would mean, as I interpret it, that all illegitimate children— not only those whose fathers were known and recognised by a court of law—would have to fulfill the requirements in Clause 3(6) relating to their fathers. This would in effect worsen the position of illegitimate children and would exclude a certain number of them from ever claiming an entitlement under Clause 3(6). Clearly, that is not what the noble Lord, Lord Avebury, desires and I am sure that it is totally contrary to his intentions.
I hope that the noble Lord will not think I am being obstructive; I am not. I have gone out of my way to repeat the undertaking about Clause 59 and the intentions of the Government when the Law Commission's report is received. But I do not think that, as they stand, these amendments will do.
§ Lord Avebury
The noble Lord has given me a rather disappointing reply. The Minister of State in another place, when replying to an amendment moved by Miss Richardson on Report stage (at col. 1137 of Hansard for 4th June), said:We did not say that we would instantly implement the Law Commission's report. We said that we would consider it sympathetically. One crucial feature will be the extent to which the Law Commission's proposals provide for a procedure that satisfactorily identifies the father".I put forward in this second amendment something which satisfactorily identifies the father. I do not think that the noble Lord disputed that. If there is an 78 affiliation case, or if subsequent to the Law Commission's report it is possible to seek a declaration of the court, then either way a conclusive identification of the father has been achieved.
Quite frankly, the noble Lord did not address his remarks to that at all; nor did he say what conceivable method of identification other than through a court of law it was possible for the Law Commission to propose. What the noble Lord said about the first amendment I take on board. I want to consult about that and consider whether it is possible to re-formulate it so that it does not have the effect which the noble Lord describes. Therefore I prefer not to press the matter to a Division at this stage. I hope to have consultations with the noble Lord, Lord Belstead, to see whether jointly we can formulate an approach which would be acceptable to the Government and then come back with it on Third Reading. In that hope—not to say expectation—I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 31 not moved.]
§ 8.56 p.m.
§ Lord Drumalbyn moved Amendment No. 32:
Page 5, line 27, at end insert—
("( ) A person born outside the United Kingdom shall, on an application for his registration as a British citizen made while he is pursuing a course of study or training in the United Kingdom leading to a recognised professional or business qualification, be entitled, on obtaining that qualification, to be registered as such a citizen if the Secretary of State is satisfied—
§ The noble Lord said: My Lords, I hope to be brief on this amendment. I think that the noble Lord will confirm that this amendment is not nullified by Amendment No. 16 to which the House has agreed. It has to be seen rather as a fallback clause and possibly an extension of what happens after the usefulness in a particular case of Amendment No. 16 has been ex-hausted. It covers a person who comes to study in this country, being a person of British extraction. It may be that it is somebody for whom his parents did not make an application for his registration as a British citizen within the period of 12 months from the date of birth, or it might be the case of the fourth generation.
§ We are talking of the first generation, the grandfather; the second generation, the parent, a citizen by descent; and the third generation is the one for which Amendment No. 16 has already catered. That might be the case. Also, it might be the fourth generation—somebody who is not entitled to have British citizenship transmitted to him by either parent. That being so, this would give him an opportunity to come to the country and reinstate himself through training for a professional or business qualification and during that period to make application which will be concluded only when he has the qualification. Obviously, if he is going to remain in Britain it will be highly desirable 79 with British antecedents that he should be a British citizen. If he goes abroad then he will do so with a British qualification and also be a British citizen. He will enter into the mainstream of British life again whether he lives abroad or at home.
§ It seems to me that it might be a very useful addition. It would mean that the Secretary of State would have to prescribe a list of courses, study or training which would be recognised for the purposes of this clause, and that of course would need to be changed from time to time. There is this whole question of the attitudes which are to be taken towards those who are to remain British, and I do not think that they should be discouraged in any way. I hope very much that I have said enough on this clause to make it clear to your Lordships' House what I have in mind and to enable my noble and learned friend to deal with my points when he comes to reply. I beg to move.
§ Baroness Trumpington
My Lords, my noble friend's amendment makes me nervous. It seems too far-reaching and difficult to regulate. It seems to me that it would undermine a great deal of the rest of this Bill. I see no reason why people who are at present in a position of studying various courses in this country with links to this country through parents or grandparents should not receive extremely favourable attention from the Home Office if they wish to apply for naturalisation. They could then become citizens in a perfectly ordinary way in the shortest space of time.
§ Lord Drumalbyn
My Lords, I am grateful to the noble Baroness, Lady Trumpington, for giving way. As Schedule 1 stands at the present time, naturalisation would take five years, whereas this envisages a minimum period of three years, so it would enable a person to be brought into the mainstream of British life at an earlier period. Considering the limitation that at the time of that person's birth his father or mother must have been a British citizen by descent, I should doubt whether it really represented a great extension. If it is an extension it is a linear extension and not a broadening out.
§ Baroness Trumpington
If I may just continue, I still hold the same view, whether it is a question of three years or five years. I shall be interested to hear what my noble friend the Minister has to say when he comes to reply.
§ 9.3 p.m.
§ Lord Mackay of Clashfern
My Lords, I should like to confirm at the outset that formally this amendment certainly can stand independently of Amendments Nos. 16 and 33 which we have moved to Clause 3 and to which your Lordships have been kind enough to agree. Having said that, I believe it is fairly plain that the concepts which underly this clause are rather like those in Clause 3 before it was amended. This clause is seeking to confer British citizenship primarily by reference to the circumstances of the adult himself, although it is true that his father or mother must be 80 a British citizen by descent—that is the first condition, but the weight of conditions are on the adult person himself.
I would respectfully agree with my noble friend Lady Trumpington that the normal course for an adult in applying for citizenship on the basis of his own circumstances would be by naturalisation. What my noble friend is really seeking to do is to provide some special kind of naturalisation for a citizen of this particular type. We would respectfully suggest that it would be an exception to the general principle that would not be justified in the circumstances.
I should now like to turn to the detail of what is proposed. The first requirement is that the applicant is to be the child of a British citizen by descent. It does not appear that the connection of the individual's parent with the United Kingdom was very strong, because the man or woman who would benefit from this provision has not secured British citizenship as a child under the other provisions of Clause 3. We would have thought that if the child's connection with Britain was strong the natural way in which he should apply, in the case of the first generation born overseas, would be under the entitlement provisions of Clause 3(2) or otherwise under the discretionary provisions of Clause 3(1); so that if he has not used either of these avenues he must be fairly remote from the United Kingdom and accordingly have little interest in maintaining such a connection. I would suggest that the existence of the first qualification here suggests that the person is not one who would have a strong case for becoming a British citizen.
Let me turn now to the other requirements. The applicant has to have applied for registration while he is pursuing a course of study or training in the United Kingdom leading to a recognised professional or business qualification but will only be eligible for citizenship when he has obtained the qualification. Although places of education undoubtedly exercise a great influence on young minds, I am doubtful whether the successful completion of what may well be a relatively short period of training should be a decisive factor in granting citizenship. After all, the individual concerned has been born abroad and probably brought up abroad; he holds another nationality and will often have close associations with another country.
It will be said that he also has to satisfy the Secretary of State that he intends to maintain close professional and business associations with this country. But we are here concerned with someone at the start of his career; is it really possible to determine with sufficient precision his intentions at this stage of his career in relation to a matter of this kind? Indeed, the difficulty of assessing such a thing was one of the reasons why we turned from the approach in Clause 3 before. Accordingly, I regret that our view is that the requirements which my noble friend has set out do not suggest a link with the United Kingdom sufficiently strong to justify conferring British citizenship as an entitlement. I certainly expect that Clause 3 as amended by the amendments which have been agreed to would cover most of the deserving cases which would attract the benefit of my noble friend's clause. I hope that in the light of these explanations my noble friend will feel able to withdraw this amendment.
§ Lord Drumalbyn
My Lords, I do not think the House would wish to spend any more time on this amendment. Your Lordships will obviously have realised that this amendment was drafted before Amendment No. 16 appeared and was intended to ease the way particularly for self-employed people to continue a tradition of self-employment abroad, or indeed to interchange from generation to generation at home or abroad or perhaps to set up links at either end. That was the original purpose. It seemed to me, as my noble friend said, that this amendment could stand on its own and could be useful. I realise the entitlement has to stem from the parents and the connection has been in the first place from the parents, but I hope we do not forget the wishes of a candidate for British citizenship and that we shall not link British citizenship entirely to the wishes and connections of the parents. I do not think I need to say any more about this, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Mackay of Clashfern moved Amendment No. 33:
Page 5, line 28, leave out subsections (8) and (9).
§ The noble and learned Lord said: My Lords, this amendment is linked to Amendment No. 16 and I have already explained it. I beg to move.
§ On Question, amendment agreed to.
§ Clause 4 [Acquisition by registration: citizens of the British Dependent Territories etc.]:
Lord Mackay of Clashfern moved Amendment No. 34:
Page 5, line 46, leave out ("the Secretary of State is satisfied that").
§ The noble and learned Lord said: My Lords, this is one of the series of amendments dealing with the deletion of the Secretary of State's satisfaction. I beg to move.
§ On Question, amendment agreed to.
Lord Mackay of Clashfern moved Amendment No. 35:
Page 6, line 20, leave out from ("person") to ("was") in line 21 and insert ("who").
§ The noble and learned Lord said: My Lords, this amendment is also consequential; and I beg to move.
§ On Question, amendment agreed to.
Lord Elystan-Morgan moved Amendment No. 36:
After Clause 5, insert the following new clause:
§ ("Commonwealth Citizens
§ .—(1) This section applies to any Commonwealth citizen who—
- (a) was ordinarily resident in the United Kingdom when his country of citizenship became independent; and
- (b) lost his citizenship of the United Kingdom and Colonies on or after that date under the independence provisions for that country and not by voluntary act; and
- (c) was settled in the United Kingdom on 1st January 1973;
- (d) and has remained ordinarily resident in the United Kingdom since 1st January 1973.
§ (2) A Commonwealth citizen to whom subsection (1) above applies shall be entitled to become a British citizen after commencement of this Act by giving notice in writing to the Secretary of State that he claims to be a British citizen.
§ (3) A claim under the foregoing subsection may be made on behalf of a child who has not attained the age of 18 years by 82 any person who satisfies the Secretary of State that he is a parent or guardian of the child.").
§ The noble Lord said: My Lords, in the absence of my noble and learned friend Lord Elwyn-Jones and of my noble friend Lord Pitt, I beg to move this amendment. The purpose of the amendment is to deal with the very deserving case of those persons who have been British citizens for very many years, who came originally from territories that were colonies and which have eventually achieved self-government but in circumstances where the consequence of the achievement of independence of those countries was that the persons concerned ceased to be citizens of the United Kingdom and Colonies though in many, many cases they never for a moment appreciated that that in fact was their status.
§ The group that the amendment embraces would therefore consist mainly of people who were born in countries when those countries were colonies and who were brought up and educated to think of themselves as British. They came to this country and settled here in the main in the 'fifties and 'sixties of this century. They are people who are permanently settled and have made their lives here, continuing to think of themselves as British. They did not lose their United Kingdom and Colonies citizenship by any deliberate or voluntary action on their part. It so happened that they were living here when their countries of birth became independent and were made citizens of the newly independent countries by the legal independence provisions which then came into force.
§ I shall speak very briefly for I see that my noble friend Lord Pitt has now come into the Chamber, but may I merely make this further point, that the claim of such people seems to have been very greatly strengthened by the Government's own recent decision to allow the people of Belize living in the United Kingdom and holding patrial United Kingdom and Colonies citizenship to retain their United Kingdom and Colonies citizenship status after Belize became independent. I beg to move.
§ Lord Pitt of Hampstead
My Lords, I ought to begin by apologising for not being in my place when the amendment was called. I thank my noble friend Lord Elystan-Morgan for moving it on my behalf. This clause is really intended to take care of a particular situation which has existed for the past 20 years but which is not really satisfactory. I can best illustrate it by merely quoting myself. I came to this country as a citizen of the United Kingdom and Colonies by birth, because I was born in a colony. I lived here for 27 years before that colony became independent. I suddenly found that I was no longer a citizen of the United Kingdom and Colonies but was a citizen of another country, and had to go through the process of registering as a United Kingdom and Colonies citizen.
I shall continue to use my own analogy to get the point home. I then had a valid British passport and so I did nothing about it. But in 1978, I was sent by the British Government to chair a commission to investigate the riots that took place in Bermuda. When I came back, my passport was just about reaching the stage where it would have expired in a few months' time and, since I realised that getting a new passport 83 involved registering as a citizen, and, since I might well have had to go to Bermuda in a hurry if there was any need to deal with any of the issues that I had raised in my report, I proceeded to make sure that I was registered as a United Kingdom citizen and got a United Kingdom passport.
I have been living here all these years and have been very active and prominent in politics, so I know the issues. But the average Grenadian would not know them. In fact, only yesterday I saw a Dominican who had come here in 1969 as a colonial and, therefore, as a citizen of the United Kingdom and Colonies. She had had a United Kingdom passport. Dominica became independent two or three years ago and, as she needs a new passport now, she has to register as a citizen of the United Kingdom and Colonies. But in her case the amazing thing was that, for some reason or other, the nationality department insisted on her taking an oath of allegiance. It is because of the oath of allegiance that I know of the problem, because she came to me in my capacity as a justice of the peace to swear that oath before me.
This is the situation that exists and it is not a very good one. There are umpteen people in that situation. They came here as citizens of the United Kingdom and Colonies and, so far as they know, until they reach the stage of needing a new passport, they are citizens of the United Kingdom and Colonies. Then they go to Petty France and they are told, "You are no longer a citizen of the United Kingdom and Colonies. You are a citizen of Jamaica, Trinidad, Barbados or Guyana". Belize is all right, because the new Belize Act gives Belizean citizens the right to continue to retain their United Kingdom citizenship—something which none of the others has ever had. It is that that I want to take care of.
When the Government were faced with that situation in 1948 vis-à-vis the people of Ireland, those people were given the opportunity of merely signing a form saying that they were British subjects. This is an analogous situation. We are faced with people who, so far as they have always known, are citizens of the United Kingdom and Colonies, but who suddenly find that they are something else. At the moment, registration takes a long time and costs a lot of money and, as I have just illustrated by the case of the Dominican woman, it can involve one in taking an oath of allegiance to the Sovereign even though one has always been a subject of the Sovereign.
The proposal in this amendment is very straightforward. It is to enable people who are citizens of the United Kingdom and Colonies, and who suddenly find themselves something else merely because their country has become independent, to do as the Irish were allowed to do and sign a form saying that they are British and want to remain British. It has advantages from the Government's point of view in that it will reduce the bureaucracy. There will be many fewer people needing to be employed to do this because, as I see it—and if the Government share my approach they will do it in this way—when people go to Petty France to get their new passport they will just sign a form and produce the appropriate evidence, and that will be that. So there will be no need for any additional staff. In effect, all they will say is, "I have 84 always been British. I want to continue to be British. I declare I have been living here all these years as a British citizen and I want to continue to be a British citizen They will sign the form, much as the Irish do, and that will be that. I hope the Government will recognise the value of this amendment.
There is a great deal of worry and fuss about this Bill. The Government could reduce some of that worry by making these sort of gestures. Nothing would be lost by doing so. For somebody who has always been a British citizen suddenly to cease to be a British citizen and have to register again as a British citizen is a bit of an absurdity. If we can adopt the method suggested we shall reduce that degree of absurdity. We shall create a facility which people will enjoy. We shall make a gesture which will have a good effect. I hope the Government will accept this amendment.
I imagine that I shall be asked why this applies only to people who were here before January 1973. The honest answer is that they are the only people who have an absolute right now. The Immigration Act 1971 took away that right from everybody else but it preserved that right for people who were living here in January 1973. Therefore, it would be very difficult for me to suggest that other people who had lost that right under the 1971 Act should now have it. So I have not asked for it; I have merely asked that people, who because they were living here on 1st January 1973 now have that right, should be allowed to do it in this simple way.
This is not new citizenship. I am talking only about people who are, and who were when they came here, citizens of the United Kingdom and Colonies; therefore, their citizenship is a continuing citizenship. All I am asking is that one should simplify the way in which they continue to retain the citizenship that they had and always thought that they had. I really cannot see any difficulty in the way of the Government agreeing to this amendment and I sincerely hope that they will.
I had to agonise over whether the age at which a minor can be registered should be 16 or 18. Eventually I plumped for 18. If I had said 16, those between the ages of 16 and 18 would be in limbo. It may well be that there exists a technical point: a parent not being able to vouch for somebody over 16. I have had that point raised with me. If it is a valid one we could rectify it at Third Reading, and I should be quite happy to do so.
There are no serious objections to this amendment. As I see it, it is a really good gesture which the Government can make. We shall make it possible for people who have always had citizenship to continue to have it. I should be pleased to be able to go and tell all the people who condemn the British Nationality Bill that at least it provides them with a facility which they did not have before. I hope the Government will accept the amendment.
§ Lord Avebury
My Lords, I should like to underline what has been said by the noble Lord, Lord ElystanMorgan, and referred to in passing by the noble Lord, Lord Pitt of Hampstead, about the effect of the Belize Act and the difference in treatment between the citizens of countries which attained their independence earlier on, during the 1970s—between those countries and not just Belize, but now also Antigua which I shall refer to in a moment.
85 What the citizenship provisions of the Belize Act did broadly was to follow the standard provisions of the independence legislation in that they withdrew citizenship of the United Kingdom and Colonies from all those who became citizens of Belize, but with certain exceptions, which represent a quite significant change from previous independence legislation which has been referred to so far in that besides those people born, registered or naturalised in the United Kingdom or a place which remained a colony on independence day, or whose fathers or paternal grandfathers were so born, registered or naturalised, a person who had the right of abode under the Immigration Act is to be excepted from the loss of citizenship of the United Kingdom and Colonies and under the Antigua (Modification of Enactments) Order made on the 31st July—and your Lordships will be aware that Antigua is to become fully independent on 1st November—this same pattern is followed.
So what we have done in the case of Belize is to say that people who have been living here all this while, and who to all intents and purposes have thrown their lot in with us, and who, as the noble Lord, Lord Pitt, has described, are not aware that any change in their status would arise as a result of the independence of a country from which they severed their connection by definition more than eight years ago, will continue to retain the successor intitled status to citizenship of the United Kingdom and Colonies in common with all those other people who enjoy that citizenship at the moment. What the noble Lord is saying in his amendment—and I fully agree with it—is that the concession that we have now made to the people of Belize and of Antigua is that the benefit of our knowledge of what will happen in this nationality Bill in all fairness should be extended to those who belonged originally to the territories which became independent some time ago, because there is no difference in principle between them and the people of Belize or Antigua.
I hope that the Government will look sympathetically at this amendment because I heartily agree with the noble Lord, Lord Pitt, that there are very large numbers of people who are not aware that any change has occurred in their status, but who may feel gravely disturbed or unsettled by the sudden discovery that they no longer belong to the country in which they have made their home for many years. This is perhaps not of vital importance, but in view of the events which have taken place in our cities over the last few months, I should have thought that anything which exacerbated the feelings of unsettlement that people have already endured would be most harmful to good relations in those cities. Therefore I very much hope that the noble Lord the Minister will accept the amendment.
§ Lord Davies of Leek
My Lords, I shall be brief because the argument has been put quite clearly, but there is a point which goes to the speech which I made earlier in this Chamber about the findings of the Citizens' Advice Bureaux with 46 per cent. increase in inquiries into the position because of the possible anomalies in this Bill. The ramifications of this matter are causing quite a lot of trouble to people who are now much older and who have served this country well in all kinds of skills, and sometimes relatives of theirs have given their lives in a war. Consequently, 86 because of the anomaly which exists in Belize, it would be foolish of this House not to recognise that we could not let an anomaly like this pass through such a constructive Chamber as this without at least asking the Government to look at the matter again. I sincerely hope that they will concede this amendment. If I were to repeat the arguments I should only bore the House. Anything further said would only be committing the sin of repetition. I shall not do that. I will sit down with an appeal to the Government to look at this in depth.
§ 9.30 p.m.
§ Lord Belstead
My Lords, in case there should be any misunderstanding about it, of course it has been absolutely standard provision of independence legislation that when a dependent territory, a colony, has acquired independence the people lose their citizenship of the United Kingdom and colonies because those people acquire the new citizenship of the country from which they come. I only start by saying that in case the impression may have been gained that in some way this is some provision of this Bill. It is not. As the noble Lord, Lord Pitt, and the noble Lord, Lord Elystan-Morgan, made clear, it has been so for many years. But it is a fact that in the Belize Act earlier on this year this principle was modified to the extent that no one lost citizenship of the United Kingdom and Colonies if they had the right of abode in the United Kingdom under Section 2 of the Immigration Act 1971. As Lord Avebury said, the same principle was followed in the citizenship provisions made for Antigua.
It is one thing to make provision for the future, as Parliament was doing in the cases of Belize and Antigua, but it really is another thing to try to unravel the past. We do immediately run into one difficulty with the amendment in the name of the noble Lord, Lord Pitt, because it goes a good deal further than the Belize and Antigua provisions. Those people benefited who had the right of abode in this country, But the proposed new clause refers to people who were settled, and of course one may become settled in this country after a very short period spent here. It is not the same.
§ Lord Pitt of Hampstead
My Lords, if the noble Lord will allow me, it is wrong to argue the matter in this way. The very point of putting the 1st January 1973 is that the 1971 Act gave the people who were settled here before 1st January 1973 a right to register. They are in a different position from anybody who comes here after that. It is a different situation. That is really why the date 1st January 1973 is in this amendment.
§ Lord Belstead
My Lords, the noble Lord is making a perfectly fair point. In essence he is saying that he is talking about people here who are settled. My answer to that is perfectly direct. For the people who are settled there are perfectly good arrangements.
§ Lord Belstead
Well, I put it to the noble Lord that there are perfectly good arrangements, which are going to be carried on for a transitional period of five years, 87 in Clause 6 of this Bill, for people who have not registered and have the right to do so. Many people who lost our citizenship when provisions took effect which took that citizenship away from them will have had many years in which to decide whether or not to register as citizens of the United Kingdom and Colonies. What I am saying to the noble Lord, Lord Pitt, is that over the years many people, because they were settled here before 1st January 1973, have done so. I think, if I may say so, they will be a bit surprised if they suddenly open their newspapers—having gone to the trouble of registering, as they have every right to do, and going through the registration procedure, which is widely understood but which takes some trouble and indeed causes the payment of a fee—and find that Parliament has suddenly seen fit to say that everybody else can just sign a piece of paper and that is all right for them. I am afraid I do not follow the line of reasoning on that.
It leads, incidentally, to a further anomaly, in that those who would be covered by this new clause would be able apparently to claim the right for their lifetime. I think this is a very important point. The noble Lord, Lord Avebury, spoke about giving people certainty and giving people peace of mind, and identifying with this country. I put it to the House at Committee stage, and I put it again, that there is a very good point in Clause 6 of this Bill, which is going to require people to decide at last whether they want to take up their registration rights to become citizens of this country, because nothing identifies people more with the country than if they have the right to be citizens here and can be encouraged to take up that right.
Let me come back to the Government's position. We believe that the current provisions of Clause 6 (and this is slightly difficult because we have not come to Clause 6) which give all currently entitled Commonwealth citizens five years from commencement in which to register—indeed, possibly up to eight years in some cases because of an amendment which we met which was moved by the noble Lord, Lord Pitt, at the last stage of the Bill—are reasonable and fair. We do not believe that there is a real case for distinguishing within this category those who formerly held our citizenship but lost it as a result of an independence Act. It was in recognition of the special position of the people from territories which had become independent since 1973—about whom the noble Lord, Lord Pitt, is understandably concerned—that the Government at the Committee stage in another place accepted an amendment to extend the time limit in Clause 6 from two years to the current five. It seems unreasonable to go further than that and extend existing entitlements without any time limit.
So far as countries becoming independent from now on are concerned, of course Parliament has before it the examples of the Belize Bill and the order under the main legislation which gave independence to Antigua. Of course, countries which arise in the future are another matter. I am sure that both Houses of Parliament will have very much in mind the treatment which has been accorded to Belize and Antigua so far as they are concerned.
§ Lord Pitt of Hampstead
My Lords, I am sorry that 88 the Government have taken that attitude. I shall have to divide the House. The reason that I was late for this amendment is that I was in the Printed Paper Office getting copies of the Belize and Antigua Acts because I wanted to quote them. I suddenly saw Amendment No. 36 on the annunciator and had to rush. The Minister has used the type of argument which always appeals to the worst elements in human nature—the fact of jealousy. I am one of those citizens who had to go and register. I would certainly not be annoyed that other people have the opportunity now of not having to go through that process. On the contrary, I am deliberately moving an amendment to give them that possibility. So to suggest that the people who have had to register would be upset if other people were able merely to sign a declaration is very insulting. The point is that people only take these actions when they have to do so. That basically is what it is all about. People who have valid British passports do not worry about registering as British citizens so long as those passports are valid. When the passports are no longer valid they go to Petty France and then they find that they have to register.
Registration takes time and I shall tell your Lordships what normally happens. Normally people have to go to the country in which they were born to get a passport because it takes so long to get a British passport or the registrttion in the passport. They go, if they are Grenadians—I am a Grenadian and so I shall use that as an example—to the Grenadian High Commission where they get a Grenada passport. Then they spend a couple of years getting United Kingdom citizenship. This form would be something quite straightforward. They would go to Petty France; they would make the declaration; they would get a United Kingdom passport; and they would continue their United Kingdom citizenship. I cannot understand why the Government should be so determined to be unhelpful. I have to press this amendment to a Division.
§ Lord Elystan-Morgan
My Lords, since I had the unexpected pleasure of moving the amendment understand that I now have the right to reply, which I shall do very shortly. The argument for the amendment has, I think, been put by the noble Lord the Minister at the very end of his speech. It appears that Her Majesty's Government, in relation to the independence of both Antigua and indeed Belize, have come to the conclusion that the old order has to change. Under the old order that had been accepted by Governments of various hues, whenever a colony became independent the citizens of that colony lost their British citizenship unless they registered.
But apparently there has been a fundamental change of policy. This was confirmed by Mr. Ridley in another place on 30th June this year, when, as I understand his speech—and at this late hour I do not intend to quote it—he made it clear that that would be the policy henceforth. Therefore, the argument for this amendment is based upon the fundamental change of attitude on the part of Her Majesty's Government. Whatever may have been the consistency of the remarks of the noble Lord the Minister prior to 30th June, they cannot possibly obtain thereafter.
There is a further argument—and I put this forward very briefly—that in relation to Eire, which, of course, 89 is in a special category. It is possible for a person very simply to make that declaration of continued allegiance and of claiming those full rights. In his first address my noble friend Lord Pitt maintained—and I believe rightly so—that a very great deal of goodwill would be engendered if this amendment were to be conceded. I urge that consideration upon the House. In my submission, it would be an act of very wise statesmanship. For that reason we invite the House to divide on this matter.
§ 9.42 p.m.
§ On Question, Whether the said amendment (No. 36) shall be agreed to?
§ Their Lordships divided: Contents, 40; Not-Contents, 77.90
|DIVISION NO. 3|
|Ardwick, L.||John-Mackie, L.|
|Avebury, L.||Kaldor, L.|
|Balogh, L.||Lloyd of Kilgerran, L.|
|Birk, B.||Lockwood, B.|
|Bishopston, L.||Molloy, L.|
|Blease, L.||Oram, L.|
|Blyton, L.||Peart, L.|
|Boston of Faversham, L.||Pitt of Hampstead, L.|
|Brooks of Tremorfa, L.||Plant, L.|
|Chitnis, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Cledwyn of Penrhos, L.|
|Collison, L.||Rochester, L.|
|Craigavon, V.||Shackleton, L.|
|David, B. [Teller.]||Stewart of Alvechurch, B.|
|Davies of Leek, L.||Stewart of Fulham, L.|
|Davies of Penrhys, L.||Stone, L.|
|Elwyn-Jones, L.||Tanlaw, L.|
|Elystan-Morgan, L.||Taylor of Gryfe, L.|
|Ewart-Biggs, B.||Underhill, L.|
|Jeger, B.||Wigoder, L.|
|Jenkins of Putney, L.|
|Airey of Abingdon, B.||Kinross, L.|
|Alexander of Tunis, E.||Kitchener, E.|
|Auckland, L.||Long, V.|
|Avon, E.||Loudoun, C.|
|Beloff, L.||Lyell, L.|
|Belstead, L.||Mackay of Clashfern, L.|
|Boardman, L.||Macleod of Borve, B.|
|Boyd-Carpenter, L.||Mansfield, E.|
|Broadbridge, L.||Margadale, L.|
|Campbell of Alloway, L.||Marley, L.|
|Campbell of Croy, L.||Monk Bretton, L.|
|Chelwood, L.||Montgomery of Alamein, V.|
|Cockfield, L.||Mountevans, L.|
|Coleraine, L.||Murton of Lindisfarne, L.|
|Cowley, E.||O'Hagan, L.|
|Cranbrook, E.||Orkney, E.|
|Croft, L.||Penrhyn, L.|
|Cromartie, E.||Portland, D.|
|Cullen of Ashbourne, L.||Renton, L.|
|Davidson, V.||Rochdale, V.|
|de Clifford, L.||Romney, E.|
|Denham, L. [Teller.]||St. Aldwyn, E.|
|Digby, L.||Sandford, L.|
|Drumalbyn, L.||Sandys, L. [Teller.]|
|Elles, B.||Sempill, Ly.|
|Elliot of Harwood, B.||Sharpies, B.|
|Elton, L.||Skelmersdale, L.|
|Faithfull, B.||Strathclyde, L.|
|Forester, L.||Swansea, L.|
|Fortescue, E.||Trefgarne, L.|
|Gainford, L.||Trenchard, V.|
|Gardner of Parkes, B.||Trumpington, B.|
|Geddes, L.||Vaux of Harrowden, L.|
|Gisborough, L.||Vickers, B.|
|Gridley, L.||Vivian, L.|
|Grimthorpe, L.||Ward of Witley, V.|
|Harvington, L.||Windlesham, L.|
|Hives, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.91
§ Schedule 1 [Requirements for naturalization]:
§ 9.51 p.m.
Lord Campbell of Croy moved Amendment No. 37:
Page 50, line 12, leave out ("or").
§ The noble Lord said: My Lords, I suggest that it would be convenient to discuss Amendment No. 38 at the same time; No. 37 is simply a paving amendment. The effect of these two amendments would be to include Gaelic with English and Welsh as a qualifying language for the naturalisation procedures. When I moved these amendments in Committee, the Government seemed prepared to give them favourable consideration, and I will briefly give the reasons. In the United Kingdom there are three indigenous languages, in that besides English there are Welsh and Gaelic. Like Welsh, Gaelic is the primary language of people living in certain areas, notably in the Western Isles of Scotland. That has been so for many years. From Scotland, many Gaelic speakers have gone abroad, so that there are several thousand speakers of Gaelic, for example, in Canada. There are more Gaelic speakers abroad, mostly in the old Commonwealth countries, than Welsh speakers abroad. I do not expect many cases involving Gaelic to come up in the naturalisation procedures, but I expect fewer involving Welsh to come up.
Lord Campbell of Croy
I have just said, my Lords, that there are more Gaelic speakers abroad than there are Welsh speakers. If Welsh is to be in the Bill, therefore, then Gaelic should be too. That individual cases may arise can be foreseen now, and we should provide for them, even though, as I said, I expect them to be few. To give an example, a Canadian whose languages are French and Gaelic, with no English, could live in Harris or Lewis and run into very few difficulties in daily life because he would be conversing in the first language of the Hebrides, Gaelic. Such a Canadian may have close family connections in the Western Isles. He may return there from time to time. He might succeed to property or wish to move his domicile permanently to look after or join relatives in the Hebrides. He would find he was eligible for naturalisation in every respect except language, although in fact he had no problems in conversing with most of the residents in the Hebrides, his home area, in the indigenous language, Gaelic.
Lastly, the question has been raised whether it is an official language. In 1967, legislation had to go through Parliament to make Welsh an official language because it was running into difficulties in the courts. No such legislation has been necessary for Gaelic because it is accepted as an official language in Scotland, and has been for many years, with no difficulties in the Scottish courts. I beg to move.
§ Lord Elwyn-Jones
My Lords, I had fully intended to support the noble Lord, Lord Campbell of Croy, on this amendment until he perpetrated the extraordinary observation that there were more Gaelic speakers abroad than Welsh speakers. There are thousands of Welshmen abroad who speak Welsh. 92 I went to a gymanfa gany in Vancouver in August of this year. There were thousands of Welshmen. We sang Welsh hymns, wonderfully, marvellously; Cwm Rhondda has never been better sung. How many Gaelic choirs are there in the United States of America?
Lord Campbell of Croy
My Lords, Vancouver, I understand, is not in the United States of America, but I would tell the noble and learned Lord—I am grateful to him for giving way—that he could go to Nova Scotia and other parts of Canada where he would find thousands speaking Gaelic.
§ Lord Elwyn-Jones
My Lords, I hate to see the Celts in disagreement, but the Vancouver occasion was the gymanfa gany of the Welsh Societies of Canada and the United States. There was a mild hitch in the proceedings because the programme read,The Welsh Societies of Canada and the Untied Stateswhich was just one of those slips on the typewriter that occur. But, coming to the serious matters, I quite agree that, limited thought the numbers are, I think it quite appropriate that a knowledge of Scottish Gaelic should be acknowledged in the provisions of the Bill.
§ The Earl of Cromartie
My Lords, I should like to support my noble friend. I come from the Gaelic-speaking area, which is not necessarily the Hebrides, either. In many places in the Highlands there is still a very considerable knowledge and use of the Gaelic language. It is not spoken to the same extent as when I was a boy, but it is still used to a great extent. So far as the Welsh language is concerned, I understand that the greatest number of Welsh speakers abroad were all down near Tierra del Fuego and Patagonia.
§ Lord Mackay of Clashfern
My Lords, I had undertaken on behalf of the Government to consider the amendments very carefully, and of course we have done just that. We appreciate the concern among many groups in Scotland that Scottish Gaelic should be recognised in this way. On the other hand, as I pointed out in Committee, there are unlikely to be many cases where applicants for naturalisation will need, or wish, to meet the language requirement in Scottish Gaelic. However, we are very much aware of the strength of feeling on this matter and we appreciate the concern that is felt that Gaelic should, as an indigenous language, have equal status with English and Welsh in this particular context.
I think that it is probably unnecessary for me to enter into the difference of opinion that has arisen between my noble friend Lord Campbell of Croy and the noble and learned Lord, Lord Elwyn-Jones, upon numbers, and therefore, in the hope that I am in the area of peace rather than of division, I would say that the Government are very pleased to say that they support the amendments.
Lord Campbell of Croy
My Lords, I think that having moved the amendment I have a right of reply, and I should like to use it first to thank the Government for having considered the arguments and accepted 93 the amendments. I am sorry that there was any difference of opinion between the Welsh and the Scots on this matter, because I am sure that it is right that all three languages should be in the Bill.
§ On Question, amendment agreed to.
Lord Campbell of Croy moved Amendment No. 38:
Page 50, line 12, at end insert ("or Scottish Gaelic").
§ On Question, amendment agreed to.
§ 9.58 p.m.
Lord Belstead moved Amendment No. 39:
Page 51, line 22, after ("physical") insert ("or mental").
§ The noble Lord said: My Lords, this amendment follows from our consideration of a point raised by my noble friend Lord Renton in Committee on 16th July. My noble friend then expressed his concern about the ambit of the discretion granted in the Bill to the Secretary of State to waive the language requirement for applicants for naturalisation; in particular the absence of any discretion to waive the language requirement where the applicant was mentally handicapped.
§ Perhaps I should have said earlier that we have now moved into the naturalisation part of the Bill. My noble friend instanced the difficult position of the elderly parents of a handicapped person who were anxious that their son or daughter should be naturalised with them, and so I promised that we would look into this. I must confess that I have not found any evidence that in the past the language requirement has in fact proved an insurmountable obstacle for mentally handicapped applicants, since we have adopted an approach with such applicants which has taken account of all their circumstances in assessing their command of language. But I certainly recognise that difficulties could possibly arise in these cases.
§ Moreover, when we have provided that the Secretary of State should have discretion to waive the language requirement on grounds of physical condition, it is justifiable that there should be a similar discretion to waive the requirement on grounds of mental condition. I am grateful to my noble friend Lord Renton for drawing attention to this issue. I hope the House will welcome this provision for a particularly deserving group, and I have pleasure in moving the amendment.
§ Lord Renton
My Lords, may I express my deepest thanks to my noble friend for the obvious concern which he has shown with regard to this matter. It is a real problem; and, indeed, there are such people—we know them; I have a daughter who is such a case—who cannot speak at all. In those circumstances it would be only right that the child should be able to follow the parents' nationality. I am deeply grateful to my noble friend.
§ On Question, amendment agreed to.
§ [Amendment No. 40 not moved.]94
§ 10.2 p.m.
§ Lord Avebury moved Amendment No. 41:
Page 51, line 23, at end insert—
("and the Secretary of State shall waive the need to fulfil the requirement in the case of any person who is deaf or blind.").
§ The noble Lord said: My Lords, this amendment relates to persons who are deaf or blind, and following the very sympathetic approach of the Minister in response to the point which was made to him in Committee by the noble Lord, Lord Renton, I hope he will be equally favourably disposed towards this proposal, of which he is already aware from some correspendence that I had with him. The noble Lord said just now that he was not aware of any difficulties that had arisen for persons with mental handicap in making claims for nationality, and when I raised with him the question of persons who were handicapped by deafness he also said that the department could not recollect a case of a totally deaf applicant but he was sure that even under the present law a deaf person could satisfy the Home Office in written form that he or she had the requisite knowledge. That was my first proposal, that if a person was so deaf that he was incapable of communicating in speech one alternative would be that he could satisfy the language requirement in written form.
§ The person who raised this with me had in fact suggested that we should write into the Bill a provision that the British sign language could be used as an alternative to English or Welsh. This is a fairly well developed art which enables people who are totally deaf to communicate with one another, although I must say that those who write about the subject claim that it is not well understood by the lay public. The British sign language is a very expressive means of communication; it has the full range of vocabulary that the English language has; and at our recent party conference at Llandudno we had the privilege of having an interpreter on the platform relaying everything that was said in the hall to the watching public on television by means of British sign language so that those who were totally deaf could understand the proceedings.
§ But after considering the matter very carefully I thought that even that would be to place in the way of applicants for nationality who are totally deaf a hurdle which was really unjust, because many of them might be applying at a fairly advanced age and would not be capable of the immense effort that it would take to learn British sign language any more than, for example, a fairly old person would find it possible to learn English in the ordinary way. So I thought that really the only sensible thing to do would be to exempt such people altogether from the requirement.
§ Then it seems to me that if one is going to exempt the deaf, then, in logic, it would be only fair to extend that to people who are blind. I know from the tone of the answers that he has given me in correspondence that the Minister is sympathetic to this; and no doubt he will say that invariably the Secretary of State would exercise his discretion in cases of this sort. I should very much value an assurance of that sort given on the Floor of the House and I am sure that the disabled 95 would think it preferable to an undertaking given in the course of correspondence; but it would be better if the Minister would agree to write it in the Bill. It would then be there for everybody to read and would be an assurance, I can tell the Minister, that it would mean a lot to those people, especially in this Year of the Disabled. Therefore, I hope very much that the Minister will see fit to accept this amendment.
§ Lord Belstead
My Lords, as the noble Lord, Lord Avebury, has said in moving this amendment, the Bill already gives the Secretary of State a discretion to waive the language requirement on grounds of physical condition, but the noble Lord is seeking to write into the Bill a duty that the language requirement should be waived on grounds of deafness or blindness. May I say that I quite understand the reasons which prompt the noble Lord to move this amendment. I should like to respond in this way should any difficulties arise in this respect in future. As I have already mentioned, the Bill already has specifically provided in paragraph 2(e) of Schedule 1 that the Secretary of State shall have discretion to waive the language requirement on grounds of physical condition. I have no doubt that this discretion would be exercised by my right honourable friend if a blind or deaf applicant who was otherwise qualified for naturalisation found difficulty in meeting the language test because of the nature of his disability; and it seems inconceivable that my right honourable friend's successors would take a different view. I give that undertaking in this House.
But the noble Lord may say, "Why not go a bit further and write it into the Bill?" There is a difficulty here, and strangely enough, to my mind, it derives from the fact that we are in the Year of the Disabled. I think that many applicants who fall within the scope of this amendment would be perfectly able to meet the language requirement and might not very much want to have their particular condition written in in this way. Moreover, I think it would be difficult to justify having an automatic exemption for one group of the disabled and not others. After all, there are conditions other than blindness or deafness which could hamper an individual from acquiring a knowledge of English. For instance, a muscular disease which could so restrict somebody's movements that he could not get out in order to be able to learn the language. This is a similar argument to that about a wife of perhaps rather more advanced years in an immigrant family, to which we have turned our attention also.
Therefore, if that is a soundly based argument, I think it is better to have a general discretion to waive the language requirements on grounds specifically of physical conditions; and this is exactly what the Bill does. I hope that with those words, and with the undertaking that I have given to the noble Lord, Lord Avebury, he may feel that that is a reasonable and, indeed, correct way to proceed rather than specifically choosing the blind and the deaf in a way which I can understand but which I think, at the end of the day, perhaps might not be the most appropriate way to proceed.
§ Lord Avebury
My Lords, I do not want to look a gift horse in the mouth. I have seldom heard a more 96 categorical assurance than that which the Minister was good enough to offer just now. It is very valuable to have that on the record in addition to having it in the correspondence which the noble Lord has been good enough to write in the past few weeks. I should have thought, however, that one could have taken care of the argument that he has put to the House by making it clear that in seeking to waive the requirement for these particular classes of disabled people one was not intending to prejudice the generality of the Secretary of State's discretion to exempt other categories of disabled people.
Having obtained this valuable assurance on the record, I am not going to push this any further. I ask the Minister to consider carefully whether, in the documents that he has undertaken to issue for the benefit of the public once this Bill becomes an Act, he will give me an assurance that the policies of the Secretary of State regarding the disabled in general and the blind and deaf in particular will be given every prominence so that applicants who are suffering from these disabilities or those who advise them will know that they do not have to comply in every respect with conditions that apply to those who are more fortunately placed.
§ Lord Belstead
My Lords, with the leave of the House, this gives me the opportunity to respond to the point that was made by the noble Lord, Lord Mishcon, on more than one occasion when we were in Committee. This was: What about publicity for the Bill? I should like to say that the Government feel that the noble Lord, Lord Mishcon, was making a valuable point in this respect. Subject to the resources which are necessary in order to be able to publicise the provisions of the Bill if and when Parliament sees fit to put the Bill on to the statute book—and bearing in mind that it has not been such a bad thing that the Government have not already given out a great deal of publicity about the wording of the Bill because it has undergone some change in your Lordships' House—I certainly give an undertaking to the noble Lord, Lord Avebury, that within those parameters of course we would consider very seriously putting into any publicity about the Bill the effects of the naturalisation provisions regarding people who are disabled.
§ Lord Elwyn-Jones
My Lords, on this side of the House we welcome the statement that the noble Lord has made about publicity on this important aspect of the Bill.
§ Lord Avebury
I am most grateful to the noble Lord, and I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
§ [Amendment No. 42 not moved.]
§ 10.12 p.m.
§ Lord Belstead moved Amendment No. 43:
Page 51, line 42, leave out sub-paragraph (e) and insert—
("(e) the requirement specified in paragraph 1(1)(b).").
§ The noble Lord said: My Lords, I beg to move Amendment No. 43 and, with permission, also to speak to Amendment No. 44. The Government accept that a language requirement could cause difficulty for those spouses in the ethnic minorities who 97 lead a sheltered existence. It is not possible to devise a satisfactory waiver for the language requirement merely to cover such a group of people, and we have therefore thought it right to bring forward to your Lordships in the interests of good race relations that the language requirement for spouses should be abolished completely. That is the effect of the two rather complicated-looking amendments which are on the Marshalled List.
§ There was a debate during Committee stage which brought in this aspect. Both my noble friends Lady Gardner and Lady Elles felt that some provision should be made in this way. They and others of your Lordships argued that such people could have a limited opportunity for learning a language and that they could find it virtually impossible to pass even a simple language test. Therefore we reached the conclusion that we did.
§ Of course, the Government still hope that the majority of those husbands or wives acquiring our citizenship would still have a knowledge of the language, since we believe that it is important that if they are to play a full part in the life of the community they should be able to speak the language. Nevertheless it has to be recognised that a knowledge of the language is not so essential to the exercise of the rights and duties of citizenship if the person concerned has an English-speaking spouse to whom he or she can turn should any difficulties arise. It is with that in mind that we finally decided it was right to bring this amendment forward, and I hope your Lordships will agree.
§ Baroness Birk
My Lords, I very much welcome these amendments. In Committee I moved an amendment to add the words,or for any other reason",but I did not move it again tonight because the earlier amendment has introduced the words "or mental" into the question of conditions. Members from all sides of your Lordships' House have spoken about the problems of the spouse at home, who may have great difficulty in learning a sufficient amount of the language to be able to take even a fairly simple test. I believe that the Government have probably covered this area pretty well with all those amendments.
§ Lord Belstead
My Lords, I am grateful to the noble Baroness, Lady Birk. I am afraid that I omitted to mention the noble Baroness by name. Indeed she has a prior claim because it was in her name that the portmanteau amendment putting the words "for any other reason" into the language requirement was presented in Committee. I am grateful to the noble Baroness for urging us in what I consider to be the right direction so far as that was concerned and I am grateful for the welcome she has given to these amendments.
§ On Question, amendment agreed to.
Lord Belstead moved Amendment No. 44:
Page 52, line 1, after ("2(c)") insert ("and (e)").
§ On Question, amendment agreed to.
§ Consideration on Report adjourned.