§ 3.14 p.m.
§ Further considered on Report.
§ Clause 6 [Right to registration by virtue of residence in U.K. or relevant employment]:
Lord Belstead moved Amendment No. 45:
Page 7, line 20, after ("made") insert ("(subject to subsection (5A))").
§ The noble Lord said: My Lords, your Lordships may recollect that during our debates at Committee stage on what was Amendment No. 92, I undertook to look again without commitment at a suggestion that the five-year limit in Clause 6(1) should be capable of extension to meet any possible hard cases. The suggestion was made during our debate on that amendment by my noble friend Lord Boyd-Carpenter. In the next debate I accepted the next amendment, No. 93A, which was moved by the noble Lord, Lord Pitt of Hampstead. In considering my noble friend's suggestion in combination with the amendment which I accepted from the noble Lord, Lord Pitt, the Government feel that it was right to offer a provision extending the five-year limit.
§ Our reasoning, my Lords, is as follows. People who qualified at commencement would have, under Clause 6, five years to register as British citizens. The case for an extension in such cases is not likely to arise except extremely rarely. I do concede, however, the point made by my noble friend Lord Boyd-Carpenter that, as he put it, one would hesitate to say that it was impossible for there to be any hard cases. In any case, the amendment moved successfully by the noble Lord, Lord Pitt, made it possible for people to become entitled after commencement. These would be children who at commencement would not be qualified because they were still minors but who attained the age of majority within the five-year period after commencement. A number of these will reach the age of 18 towards the end of the five-year period and so will have little time in which to apply unless there is some possibility of extending the time limit.
§ My Lords, it is primarily to enable the time limit to be extended for these people who would have been 113 minors at commencement that I move this amendment. If there are other hard cases, the amendment will also enable their needs to be met. I must however point out to the House that there must be a cut-off point somewhere for reasons which I sought to deploy at the previous stage. That is why the amendment applies only to those persons who are entitled to registration at the end of the qualifying period of five years. No one can become qualified in the extension period of three years. I would also point out to your Lordships that the overall period of eight years which would result in subsection (1) is equivalent to the same period to be found in subsection (2), although there it is broken up somewhat differently because the circumstances in subsections (1) and (2) of Clause 6 are different. With those words—I hope, of explanation—I beg to move this amendment.
§ Lord Boyd-Carpenter
My Lords, I should like very briefly to thank my noble friend for accepting the suggestion made in Committee of introducing a measure of flexibility. As he says, I do not think that there will be very many cases involved; but even a few cases could cause hardship and I think that this is a useful improvement in the Bill. I should like, once again, to thank him for having listened so attentively and for having given such care and trouble after the debate to what was said during the Committee stage.
§ Lord Elwyn-Jones
My Lords, in some respects it would have been convenient if we could have discussed Amendment No. 46 before this one because I confess that our inclination on this side of the House would be—if I may coin a phrase—to go the whole hog. That is not always a wise expression to utter in this noble House, but at present it is quite safe to do so! It is a joke which has been made many times before. We on this side of the House welcome this concession by the Government, so far as it goes, following the representations of the noble Lord, Lord Boyd-Carpenter, and my noble friend Lord Pitt. So, without prejudice to what may be considered regarding the next amendment, may I express the hope that in administering the provisions of the new amendment the Home Office will take a broad and sympathetic view of what constitute special circumstances and what cases are hard cases?
We tend perhaps to forget how many people simply do not, through no fault of their own, fathom all the complex details of much of the legislation we have to consider, and particularly of this legislation. Although there has been widespread concern about many of the provisions of the Bill, some of it well-founded and some of it perhaps unnecessary or misplaced, there are still many in the country who do not know how they will be affected by the Bill and will not know until perhaps it is too late whether there is a time limit, as there is in this clause, and that may prejudice their position.
The value of this amendment, providing as it does for a discretionary power rather than an entitlement, which is what we would prefer, will depend entirely in practice on the way it is administered by officials in the Home Office; and we would like the Government to make clear in this debate that the interpretation of special circumstances will be broad enough 114 to accommodate late applications by all those who are minors at commencement and by all those who can show that they did not know about their preserved entitlement and the advantages of exercising it within five years, as well as all those who could not afford the fee until the time of the application. Subject to those observations, we express our gratitude for the amendment, hoping, as I say, that the Government will go even further in our consideration of the next amendment.
§ 3.22 p.m.
§ Lord Pitt of Hampstead
My Lords, I had not intended to intervene because I want to move my next amendment and I do intend to press it. The point is that, although the Government are going a long way to meet us, this does not really meet the point. I was sorry the Minister accepted my amendment No. 93A but has missed the point. If this Bill becomes law and is effective from 1st January 1981 then any child who was born after 1968 will lose its right to register. Therefore that eight years cannot be discretionary: it has to be a right. Therefore in effect what we need is not a change from five to eight years provided that certain conditions are met but a change from five to eight years.
Then I must go on to say that, if we are to accept the discretionary attitude, those words,but shall not do so unless the person to whom the application relates would have been entitled to be registered under that subsection on an application made immediately before the end of five years after commencement",will effectively exclude those youngsters I am talking about, because those youngsters would not have been entitled after five years. They would in fact have been minors and, as I pointed out to your Lordships in Committee, the British Nationality Act 1948 made a distinction. It said that the Secretary of State "shall" register people of full age and capacity, but it said that the Secretary of State "may" register minors. There is a distinct difference between the two. What I said then—and the Minister accepted it and I had hoped that he accepted the whole of the point—was that we should in fact make sure that all the people who are entitled but who, because they are under age now, would be deprived of their entitlement would not be deprived of their entitlement and we should extend the period long enough to make sure they can have their entitlement. That is the point of the eight years. Eight years would make it 1990. To qualify, one had to be born before 1st January 1973, so if you made it 1990 they would all be qualified and there will be no youngster who will have had his right taken away from him.
I am now making the speech that I was going to make on the next amendment, but it does not matter. There is a great deal of worry particularly in the West Indian community about the effect this deprivation of rights can have. I should like to beg your Lordships to remember that I am talking about youngsters who have spent most of their lives here—the youngsters therefore about whom we as a Parliament should be concerned—and we should be concerned to see that their rights are preserved. Their rights are not preserved by Amendment No. 51. They can in fact be allowed to register if the Secretary of State thinks 115 fit but, if the truth be told, they are able to be registered now if the Secretary of State thinks fit, because they are minors and he has discretion to register them. What we want is that when they become of full age, which is 18, the rights which the parents today have and which they have because they are living here will be able to be exercised.
Therefore, I am sorry that the Minister and I are not getting on the same wave-length at all. I know he is trying to be helpful but he is not on my wavelength. What I am saying is that we should not be taking away rights that at present exist, and, by restricting the period to five years, we are taking away rights from the youngsters who would then be 15, 16 or 17. We must add those three years in order that they may all have their rights preserved. That is what I hoped the Minister had in fact seen when he accepted my amendment and that is what he was willing to make sure about. But in this amendment he has not done that because, although we accept that it is going to be discretionary, we have restricted the discretion. He can only use it if in fact they would have been entitled after five years. But the people I am talking about would not have been entitled, because they would not then have been of full age. That is the point, and we need to make it possible. I can understand the Minister saying that we do not want the entitlement to continue for ever. All right: if you are to limit it to a certain period, limit it to a period which would ensure that the people who are entitled today are in fact covered, and the only way you can do that is to extend it to 1990.
§ Lord Gifford
My Lords, I find myself very troubled by the speech of my noble friend Lord Pitt, and I think we must ask the noble Lord, Lord Belstead, to give a very clear answer as to whether the noble Lord, Lord Pitt, has made a right analysis, because if the analysis of my noble friend is right—and I am inclined to think that it is—then we have not got this provision right and the Government's amendment does not get it right. There is no question of principle that divides the House on this, but we must make sure that all those who are entitled to register, whether they be adults or minors, have a proper opportunity to do so.
§ Lord Belstead
My Lords, first of all, I should like to thank my noble friend Lord Boyd-Carpenter for his words about the amendment which I moved. I think I should just make it clear to your Lordships that this amendment was to build upon an amendment which was moved by the noble Lord, Lord Pitt, in Committee and which the Committee accepted. A great deal of the speech made by the noble Lord, Lord Pitt of Hampstead, as he admitted himself, was in fact directed towards Amendment No. 46, which the noble Lord will move in a few moments' time. Incidentally, I shall be fascinated to hear what speech the noble Lord makes on that particular occasion. I have not worked in politics for very long but in the time that I have worked in politics I have begun to discover that one always makes the same speech but starts at the end and finishes with the beginning, and then it always seems like a different speech.
The noble Lord, Lord Pitt of Hampstead, has made a serious point and we must come to that point in a 116 moment or two. The serious point that I must put to the noble Lord is that the amendment I have moved is one I would venture to suggest this House would do well to agree with unless it were to disagree with the original amendment which the noble Lord, Lord Pitt of Hampstead, made. The effect of Amendment No. 45—and I would like to reply in this way to the noble and learned Lord, Lord Elwyn-Jones—is that the five-year limit in Clause 6 should be more than sufficient, we believe, for those who have a current entitlement to register as British citizens. But the Bill has now been amended by the noble Lord, Lord Pitt of Hampstead, at a previous stage in the progress of the Bill, to enable a minor Commonwealth citizen who becomes of full age during the five years after commencement to apply for registration then as an entitlement. That is the effect of the amendment from the noble Lord, Lord Pitt of Hampstead, which is now in the Bill. It seems right that there should be some leeway for those who reach the age of 18 towards the end of that five-year period and that is the effect of the amendment I am now moving. It would of course include any other exceptional cases which the Secretary of State considers it right also to take into account.
§ On Question, amendment agreed to.
§ 3.32 p.m.
Lord Pitt of Hampstead moved Amendment No.46:
Page 7, line 20, leave out ("five") and insert ("eight").
§ The noble Lord said: My Lords, I have more or less spoken to this amendment but I hope the Minister will take on board the point that his concession still does not meet the case. There will still be 15, 16 and 17 year-olds who will be deprived of their entitlement because of the five-year ruling. To meet their case one has to extend the period to eight years and this is the reason why I am moving this amendment. If the Government do not agree then I hope your Lordships will agree that these youngsters should have their entitlement preserved. Their entitlement can be preserved only if the five-year period is extended to 1990. Children who were born in 1972 will be 18 in 1990 and it is only when they are 18 that they become of full age—and it is only when they are of full age that they have the full entitlement. All I am asking the Government to accept is that these youngsters have their entitlement preserved, and their entitlement will be preserved if my amendment is accepted; and if my amendment is accepted there is no real need for Amendment No. 51. I beg to move.
§ Lord Belstead
My Lords, in this amendment the noble Lord, Lord Pitt of Hampstead, is suggesting that the period during which Commonwealth citizens and citizens of the Republic of Ireland may claim any current entitlements to our citizenship should be extended from five years—which is the effect of Clause 6—to eight years. This is a matter which has been given recurrent attention since this Bill started its passage through Parliament many months ago in the House of Commons. When the Bill was introduced the transitional period of time allowed to people to take up their current entitlements was put to Parliament as two years under Clause 6. This was reconsidered 117 at Committee stage in the other place, where the Government accepted an amendment which extended the limit to five years. The House has now agreed an amendment under which applications may in special circumstances be granted for up to eight years after commencement. This does not, of course, meet the point made by the noble Lord, Lord Pitt of Hampstead, who wants the whole entitlement shifted another three years. I just said those things in order to show that the Government have endeavoured to be flexible in their approach to this matter. Incidentally, the Government did accept in full the amendment which the noble Lord, Lord Pitt of Hampstead, moved at the previous state of the Bill.
It seems that the Bill as it stands with the addition of the discretion to extend the time limit caters more than reasonably to the needs of those who currently hold the entitlement concerned. But in the Government's view there really must be some period of time when the entitlement to become a registered citizen must end. I have sought on previous occasions to explain the reasons why the Government take this view; not least it is because the Government feel that the right thing to do is to encourage people to take up their entitlement to citizenship because we believe that nothing binds people more closely and effectively to this country than encouraging them to take up the right of citizenship which they hold instead of, for some reason best known to them, waiting and continuing to live here but not becoming citizens. I think it is fair of me to make that point.
The noble Lord, Lord Pitt of Hampstead, has urged that the extension to eight years is necessary in order to benefit those minor children who will not reach full age until after the five-year period has expired. I really doubt whether this amendment is justified on those grounds. The children concerned will now be aged from 8 to 12 years old and they must reasonably be regarded as their parents' responsibility. If their parents wish them to acquire our citizenship, there should be no difficulty in securing their registration under the Secretary of State's discretionary powers for minor children; it is simply necessary to make an application under Clause 3(1) and it is almost inevitable that the application will be responded to in the affirmative. The Secretary of State's discretionary powers are normally exercised in the minors' favour when the child is living here with parents who are our citizens or are successfully applying for our citizenship.
Finally, I should like to turn to the point about the noble Lord's previous amendment. The Government accepted the noble Lord's previous amendment moved at an earlier stage of the Bill. This enabled minor children who reached full age during the five-year period to benefit from Clause 6. But these were older children, and we saw some force in the noble Lord's contention that some children at least would have been separated from their parents and would no longer be part of the family unit. But I really do not consider that the same argument applies when one is talking about younger children. With respect, I was under the impression when I listened to the noble Lord, Lord Pitt of Hampstead, at the previous stage that that was his view too, because the effect of his amendment at that stage was to leave the Bill in the 118 state it is in at the present time. I accepted absolutely what the noble Lord put to me then and the Government accepted his amendment. But now the noble Lord wishes to push the door open a little further. For the reasons I have given, I do not believe that that would be the right thing to do and I hope that your Lordships will understand the reasons why.
§ Baroness Elles
My Lords, I wonder whether my noble friend will allow me to put a question to him. He has rightly referred to Clause 3(1), on which I think many people will be relying in future, and under this subsection of Clause 3 a parent could apply on behalf of a minor child. But what will happen if one of the category of children to whom the noble Lord, Lord Pitt, has referred happens to be in care, in a remand home, or no longer living with his parents? There are many cases of the kind of child to whom the noble Lord, Lord Pitt, has referred, of whom those of us who have done voluntary work are only too well aware.
My second question is more a kind of proposal, because I believe that the noble Lord, Lord Pitt, has a genuine anxiety and it is the duty of this House to try to resolve it satisfactorily for these young citizens. I wonder whether some amendment could be made to Amendment No. 51, perhaps at the last stage of the Bill, to cover those cases where people would be eligible before the end of the five years, but not if they happen to be minors on that date, or words to that effect. Could we show that the period can be extended to eight years in certain circumstances, but only on the grounds that the child happens to be a minor at the end of the five years and is therefore not in a position to register?
I am not wording it very well, but I hope that my noble friend has grasped the meaning that I wish to propose to him. If he could answer my first question I should be grateful. But, as I said, I think that it is the duty of the House to try to resolve the very real point which the noble Lord, Lord Pitt, has raised.
§ Lord Gifford
My Lords, before the noble Lord replies, I should like to follow the contribution of the noble Baroness who has made a very constructive proposal. There are two points which are raised on this amendment. The one which is superficially raised is whether the period of entitlement should be five years or eight years and, of course, one appreciates the reply on that point by the Minister that five years is considered by the Government—and I think, indeed, that it has been voted on by the House—as the right period and we should not extend it to eight years, much as we should like to do so.
There is then the other point, which is really the one that my noble friend Lord Pitt has raised in his speech. The Minister's reply made it clear that my noble friend Lord Pitt has got the analysis right, and that there will be children who will lose their entitlement if their parents have neglected, refused or been unable, for the kind of considerations which the noble Baroness, Lady Elles, raised, to register them during their minority. Those are cases, some of which will undoubtedly be cases of genuine hardship, where children reach their minority, find that they are not British citizens, even though they have no connection 119 with the country of their parents' birth, and then have only the avenue of naturalisation in order to become British citizens. The suggestion of the noble Baroness, Lady Elles, that we might look at Amendment No. 51 again is surely right, and I am sure that, if that were acceded to, there would be many of us who would not wish to adhere to the letter of Amendment No. 46.
§ Lord Molloy
My Lords, I wonder whether I might make a very small contribution, which is very difficult, because what I have to say does not strictly apply to the amendment which we are discussing. My point very briefly is this, and I feel sure that the noble Lord, Lord Belstead, will understand it. When we pass legislation, either in this House or in another place, and we ourselves read the Bills before they become Acts, we very often do not wholly understand them. So everything that we do, either in this House or in another place, particularly in the case of measures of this character, makes for a field day for the lawyers in the first instance.
In my experience in both Houses, what has helped enormously in the case of measures of this character is that sometimes the Government of the day have decided to print leaflets of guidance and help for ordinary people who will be affected, and we are now talking about affecting people who are tiny tots at this moment. Therefore, will the noble Lord make a statement, either today or at some other time before this Bill is enacted, to commit future administrators of this Bill, when it is an Act of Parliament, to take every step to provide explanations in simple, ordinary, everyday language—in the English language that we use every day to one another and not in the horrid kind of language that we are compelled to put into enactments of this character? I believe that such explanations have greatly helped ordinary folk apropos of, for example, social security and all kinds of complicated measures in relation to immigration.
I have had to read this Bill a number of times—and I am sure that many noble Lords on both sides of the House would have to say the same thing—in order to try to understand the legislation with which we are dealing. If we are frank and say that of ourselves, then we have a responsibility to make very certain that those who will be affected by this Bill do not have to rely merely on the wording of an Act of Parliament. When this legislation is enacted the Government of the day should see that pamphlets and explanations in ordinary language are made available to those who are affected, so that they can understand what we in this Parliament really mean by the Bill that is now before us. I hope that the noble Lord, Lord Belstead, will be prepared—if not immediately, but perhaps before this measure is finally enacted—to make an announcement of that kind, which will commit future administrations to do what I have suggested.
§ 3.47 p.m.
§ Lord Belstead
My Lords, with the leave of the House, may I first reply to my noble friend Lady Elles, who asked me whether, under the discretion of the Secretary of State in Clause 3(1), an application to register must be made by the parent. The answer is that I think I am right in saying that there is no such stipulation in Clause 3(1). Anyway, applications from 120 persons in loco parentis on behalf of a child would most certainly be sympathetically considered. My noble friend gave the example of a child who is in care and those words of mine are supposed, for instance, to cover that example.
Then the noble Lord, Lord Gifford, spoke about children losing their entitlement. The noble Lord will forgive me if I say that that is not actually so. We are talking about the discretion under the 1971 Immigration Act for the Secretary of State to register Commonwealth citizens settled here before 1st January 1973. That did not, of course, include children and they therefore did not, in fact, have either an entitlement or a discretion at all. As I understand it, it was precisely because that was the situation that the noble Lord, Lord Pitt, said at the previous stage of the Bill that, as children have to wait until they are of full age before they can make an appoication, he wished to see them able to make their application if they became of age five years after the commencement of this Bill.
In order to try to help the noble Lord, Lord Pitt, on that, I moved the previous amendment, which said, in addition to that, that they can have a bit of elbow room for making their application and can have another three years to think of it. So I am sure the noble Lord, Lord Gifford, will forgive me if I say that I do not think the way in which he pitched his remarks was entirely accurate. Children never had an entitlement, because there was no entitlement for everyone, and they did not even have a discretion with the Secretary of State, because they did not fall within the scope of the 1971 Immigration Act, so far as this matter was concerned. It was because the noble Lord, Lord Pitt, was very well aware of this that he moved his amendment and we met the noble Lord so far as that is concerned. I realise that the amendment moved by the noble Lord, Lord Pitt of Hampstead, does not go as far as he wanted it to go. I do not know that I was wholly aware of that at the previous stage of the Bill, but it is clear from today's debate that it does not.
This brings me finally to the noble Lord, Lord Molloy, who asked whether the Government would give an undertaking in this complicated area that by means of publicity they will make it clear to people where they stand. So far as that is concerned, I endeavoured to make the position clear yesterday and said that the Government have taken on board what the noble Lord, Lord Molloy, is saying now and what was said with some force on more than one occasion during the Committee stage by the noble Lord, Lord Mischcon. May I go one stage further? There must be some method by which children who are Commonwealth citizens and who were settled here before 1st January 1973 can become citizens. If they cannot become citizens under Clause 6, how can they become citizens? My answer is by the way which has always been open to them, by discretionary registration under Clause 3(1), an application being made in that way.
I do not think I can go further than that today. We cannot accept the amendment which has been put to the Government by the noble Lord, Lord Pitt of Hampstead, for two reasons. First, we have moved—we have moved three times—during the Commons stage and the Lords stage to try to open 121 up this clause and we feel we have gone as far as we should. Secondly, we genuinely feel that there should be a cut-off point to the time during which Commonwealth citizens who were here before 1st January, 1973 should be able to claim their citizenship. The reason is reputable. It is because the Government feel very strongly that people who have the right to take up citizenship in this country should be encouraged to take up that right. By giving them another five years from the time that this Bill will commence, if Parliament passes it into law, seems to be wholly reasonable.
§ Lord Pitt of Hamsptead
My Lords, I am sorry that the Government, having moved to some extent, feel that they cannot move any more. What has happened during the discussion on this Bill in the two Houses is that limiting the period to two years means that children from the age of 10 years upward will be adversely affected. By improving it to five years, the Government have moved somewhat. If they had not accepted my amendment, it would have adversely affected children at the age of 10, because something was said about such children being eligible at the commencement. We have moved nicely except that there will be three age groups of children who will be adversely affected.
I cannot see why the Government think that it is so difficult to accept this amendment which would extend entitlement to children born in 1969, 1970, 1971 and 1972. I must thank the noble Baroness, Lady Elles, for helping me. She made a solid point which I had it in mind to make, but did not make; therefore, I am glad that she made it for me. The fact is that where children are in a home the people in charge of that home can register those children, but the noble Baroness knows and I know that they will not. It is not that those children cannot be registered by the people who are looking after them now; but they will not do it. Therefore it is no use the Government saying that these children can be registered under Clause 3(1). Even parents are slack about registering their children. Those who are being looked after in a home are even worse off.
I should like the Government even now to think about changing their stance. It seems to me that their rigidity is quite unnecessary. Even if the Government do not want to give this absolute entitlement, perhaps they would consider amending their own amendment so that it does not exclude these children. The effect of the words,but shall not do so unless the person to whom the application relates would have been entitled to be registered under that subsection on an application made immediately before the end of the five years after commencement",is that you are effectively excluding the children about whom I am speaking. The Government have made it possible for children to be entitled to be registered up to 1987. I am assuming that the Bill comes into effect on 1st January 1982. If there is entitlement up to 1987 but that entitlement is not taken up, I am asking that that privilege should be granted for another three years. I am asking that certain people who, because they are minors, do not have that entitlement should be given it.
122 I should not have bothered to move my amendment had those words not been in the Government's amendment. I should merely have asked for an undertaking that the children of whom I am speaking would be regarded as special cases. But because those words have been inserted by the Government the Secretary of State cannot regard them as special cases. In fact, they will not have the entitlement at the end of five years, and because they will not have the entitlement at the end of five years the Secretary of State cannot consider them up to eight years. Therefore they are completely excluded. I want to repeat what I said earlier. We are talking about children who have grown up in this country. I am afraid that I shall have to divide the House.
§ Lord Elwyn-Jones
My Lords, with leave, I wonder whether I could make a suggestion. There does not seem to be any lack of goodwill regarding this matter but we are in a position of some confusion—I certainly am—about these exchanges. Would it be too much to ask the noble Lord, who I know wants to be helpful about this, to reconsider (perhaps we could discuss it more specifically when we reach Amendment No. 51) the words in subsection (5A) which come after "but" on the fourth line to "commencement"? That seems to be the area which is causing the difficulty. We still have Third Reading and the passing stage of the Bill. It would be unfortunate if we had to have a Division on this matter because it may be capable of remedy, at least to the point of clarification. I wonder whether I am asking too much? I know that one likes to get points finalised at Report stage, but I think there is room for review of the words in this section to meet the point which my noble friend has made. If that undertaking were given, I am sure that my noble friend would not press the matter to a Division.
§ A noble Lord: My Lords, much better not.
§ Lord Trefgarne
My Lords, my noble friend Lord Belstead is constrained by the rules of the House from speaking yet again on this matter. He is prepared to ponder upon it pending consideration of the related amendment, but I ought to say that the likelihood of any further concession is fairly remote.
§ 3.59 p.m.
§ On Question, Whether the said amendment (No. 46) shall be agreed to?
§ Their Lordships divided: Contents, 91; Not-Contents, 133.124
|DIVISION NO. 1|
|Airedale, L.||Banks, L.|
|Amherst, E.||Bernstein, L.|
|Amulree, L.||Beswick, L.|
|Ardwick, L.||Birk, B.|
|Avebury, L.||Bishopston, L. [Teller.]|
|Aylestone, L.||Blease, L.|
|Blyton, L.||Maybray-King, L.|
|Boston of Faversham, L.||Mayhew, L.|
|Brockway, L.||Molloy, L.|
|Bruce of Donington, L.||Oram, L.|
|Byers, L.||Pargiter, L.|
|Cledwyn of Penrhos, L.||Parry, L.|
|Collison, L.||Peart, L.|
|Cooper of Stockton Heath, L.||Perth, E.|
|Darling of Hillsborough, L.||Pitt of Hampstead, L.|
|David, B.||Reilly, L.|
|Davies of Leek, L.||Ritchie of Dundee, L.|
|Davies of Penrhys, L.||Roberthall, L.|
|Donaldson of Kingsbridge, L.||Rochester, L.|
|Donnet of Balgay, L.||Ross of Marnock, L.|
|Elwyn-Jones, L.||Sainsbury, L.|
|Elystan-Morgan, L.||Salmon, L.|
|Evans of Claughton, L.||Seear, B.|
|Ewart-Biggs, B.||Sefton of Garston, L.|
|Fisher of Rednal, B.||Shinwell, L.|
|Gaitskell, B.||Simon, V.|
|Gifford, L.||Stamp, L.|
|Gladwyn, L.||Stewart of Alvechurch, B.|
|Guildford, Bp.||Stewart of Fulham, L.|
|Hampton, L.||Stone, L.|
|Hanworth, V.||Tanlaw, L.|
|Hunt, L.||Taylor of Gryfe, L.|
|Jacques, L.||Taylor of Mansfield, L.|
|Jeger, B.||Tordoff, L.|
|Jenkins of Putney, L.||Underhill, L.|
|John-Mackie, L.||Wallace of Coslany, L.|
|Leatherland, L.||Wedderburn of Charlton, L.|
|Listowel, E.||Wells-Pestell, L.|
|Llewelyn-Davies of Hastoe, B. [Teller.]||Whaddon, L.|
|Lloyd of Hampstead, L.||Wigg, L.|
|Lloyd of Kilgerran, L.||Wigoder, L.|
|Lockwood, B.||Wilson of Radcliffe, L.|
|Lovell-Davis, L.||Winstanley, L.|
|McCarthy, L.||Winterbottom, L.|
|Adeane, L.||Elton, L.|
|Alport, L.||Energlyn, L.|
|Ampthill, L.||Exeter, M.|
|Auckland, L.||Faithfull, B.|
|Avon, E.||Ferrers, E.|
|Belhaven and Stenton, L.||Ferrier, L.|
|Beloff, L.||Forester, L.|
|Belstead, L.||Fortescue, E.|
|Boyd-Carpenter, L.||Gage, V.|
|Cairns, E.||Gainford, L.|
|Campbell of Alloway, L.||Gardner of Parkes, B.|
|Campbell of Croy, L.||Garner, L.|
|Chelwood, L.||Geddes, L.|
|Clancarty, E.||Gisborough, L.|
|Clitheroe, L.||Gore-Booth, L.|
|Clwyd, L.||Grey of Naunton, L.|
|Cockfield, L.||Gridley, L.|
|Coleraine, L.||Grimston of Westbury, L.|
|Cork and Orrery, E.||Hailsham of Saint Marylebone, L.|
|Craigavon, V.||Hankey, L.|
|Cranbrook, E.||Harvington, L.|
|Crawford and Balcarres, E.||Hawke, L.|
|Cromartie, E.||Hayter, L.|
|Cullen of Asbourne, L.||Henley, L.|
|Daventry, V.||Hertford, M.|
|Davidson, V.||Hives, L.|
|De Freyne, L.||Hornsby-Smith, B.|
|De La Warr, E.||Ilchester, E.|
|Denham, L.[Teller.]||Kemsley, V.|
|Dilhorne, V.||Killearn, L.|
|Drumalbyn, L.||Kilmany, L.|
|Dudley, B.||Kimberley, E.|
|Ebbisham, L.||Kinloss, Ly.|
|Effingham, E.||Kinross, L.|
|Ellenborough, L.||Kitchener, E.|
|Elles, B.||Lane-Fox, B.|
|Elliot of Harwood, B.||Lindsey and Abingdon, E.|
|Long, V.||Portland, D.|
|Loudoun, C.||Redmayne, L.|
|Lucas of Chilworth, L.||Renton, L.|
|Luke, L.||Richardson, L.|
|Lyell, L.||Robbins, L.|
|McAlpine of Moffat, L.||Rochdale, V.|
|McFadzean, L.||Romney, E.|
|Mackay of Clashfern, L.||St. Davids, V.|
|Macleod of Borve, B.||Sandford, L.|
|Mancroft, L.||Sandys, L.[Teller.]|
|Mansfield, E.||Sharples, B.|
|Margadale, L.||Skelmersdale, L.|
|Marley, L.||Spens, L.|
|Milverton, L.||Strathclyde, L.|
|Monk Bretton, L.||Strathspey, L.|
|Montgomery of Alamein, V.||Swansea, L.|
|Morris, L.||Swinfen, L.|
|Mountevans, L.||Terrington, L.|
|Mowbray and Stourton, L.||Thorneycroft, L.|
|Moyne, L.||Trefgarne, L.|
|Murton of Lindisfarne, L.||Trenchard, V.|
|Newall, L.||Trumpington, B.|
|Norfolk, D.||Vaizey, L.|
|Northchurch, B.||Vaux of Harrowden, L.|
|Nugent of Guildford, L.||Vickers, B.|
|O'Hagan, L.||Ward of Witley, V.|
|Onslow, E.||Willoughby de Broke, L.|
|Orr-Ewing, L.||Wolverton, L.|
|Penrhyn, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.9 p.m.
§ The Lord Advocate (Lord Mackay of Clashfern) moved Amendments Nos. 47 to 50:
§ Page 7, line 21, leave out (" he satisfies the Secretary of State") and insert ("either of the following requirements is satisfied in his case, namely—")
§ Page 7, line 41, leave out ("satisfies the Secretary of State that he")
§ Page 8, line 9, leave out ("on") and insert ("in the case of")
§ Page 8, line 11, leave out from ("person") to ("engaged") and insert ("has been").
§ The noble and learned Lord said: My Lords, this amendment—and I take with it, if I may, Nos. 48, 49 and 50—relates to the removal of the phrase about the Secretary of State's satisfaction, the reasons for which I have explained before. I should like, if the House thinks it convenient, to move these four amendments en bloc. I beg to move.
§ Lord Elwyn-Jones
My Lords, we are quite happy to approve these amendments, which we have come to know on this side of the House as the "Gifford amendments".
§ On Question, amendments agreed to.
§ Lord Belstead moved Amendment No. 51:
Page 8, line 29, at end insert—
("(5A) If in the special circumstances of any particular case the Secretary of State thinks fit, he may treat subsection (1) as if the reference to five years after commencement were a reference to eight years after commencement, but shall not do so unless the person to whom the application relates would have been entitled to be registered under that subsection on an application made immediately before the end of the five years after commencement.").
§ The noble Lord said: My Lords, I am not sure that I entirely made it clear in moving Amendment No. 45 that the substantive amendment was really Amendment No. 51, which we have now reached. I will not repeat 125 the remarks I made on that occasion, or indeed on Amendment No. 46 which the noble Lord, Lord Pitt, moved and which we have now voted on, except to say this. My noble friend Lady Elles asked me a direct question about the position of children who could be in care, and I gave an answer that it would be possible for an application to be made for their registration as citizens under Clause 3(1), because if they were in care those who were in charge of the children would be in loco parentis.
§ I know that the noble Lord, Lord Pitt, among other reservations about the attitude of the Government on this point, felt that although local authorities ought perhaps to know this, it was something upon which they would not necessarily feel they needed to act. Certainly I am prepared to take away what has been said on these amendments and look at this specific point, to see whether the Government ought to consider some advice being given. I do not give any commitment on this, but I would not want the noble Lord, Lord Pitt, or my noble friend Lady Elles to feel that I have not listened to that particular point in addition to the other points which have been made. I beg to move.
§ Lord Pitt of Hampstead
My Lords, I wonder whether, when he replies, the Minister will give an undertaking to consider deleting the words after "commencement" in line four to the end of the paragraph? If those words are removed, then the Secretary of State will in effect have a discretion to register anybody up to eight years. Then there would be included the minors I am speaking of. If, however, those words are retained those minors are excluded. I should like him to give some thought as to whether those words cannot be deleted.
§ Lord Gifford
My Lords, I would support what my noble friend has said and add this. If a discretionary power is being given it does not help to fetter it by some statutory rule which excludes certain categories of people. It may well be that in principle that is how the Secretary of State would proceed; but let us keep the discretion general, and then, in the sort of hard cases which various noble Lords have mentioned, in the case of people who are now children, the discretion could be exercised.
§ Lord Avebury
My Lords, I listened with care to what has been said about the position of children who are in homes and on behalf of whom the local authority which is in loco parentis would be able to make an application for registration. The noble Lord the Minister said that he would consider whether, in the light of the discussions, it may be possible for the Government to give any undertaking that they would advise local authorities as to what steps they should take. Could not the Minister go a little further? We are talking about a matter which is of crucial importance for the whole future of the children. The noble Lord will recognise that, as things stand, if local authorities do nothing a great many children are going to forfeit the opportunity to become British citizens except by a much longer route than would be available to them if they were advised in good time.
126 Is it not only reasonable that the local authorities should be placed under an obligation at least to tell the children that they have this right and to ask them whether they wish it to be exercised on their behalf? A child of 13 or 14 is perfectly capable of seeing what are the merits of becoming a British citizen if the local authority were to make an application for registration on his or her behalf. The child may not even be aware that such a possibility exists unless it is drawn to his or her attention. So why cannot the Minister go a little further than he did a moment ago and say that the Government will draw to the attention of the local authorities the power they have to make applications on behalf of the children in their care, and will strongly advise them that they should instruct the persons in charge of the children's homes to draw the possibilities to the attention of all those children and ask them whether they wish this right to be exercised on their behalf?
§ Lord Belstead
My Lords, if I may reply to those points, it is, I think, interesting, and it is a pointer to the complication of this subject, that even the noble Lord, Lord Avebury, who knows a great deal more about it than I do, I think made a slip of the tongue when he referred to children up to the age of 14 who might lose the opportunity to be able to register as British citizens by the particular avenue set out in Clause 6. With respect, the noble Lord is not quite right, because it would be children of that age who would benefit from the amendment which the noble Lord, Lord Pitt, has managed to get the House to agree to; the Government accepted it at a previous stage. It does show that this really is a complicated area, and because it is a complicated area, although I have resisted the amendment which the noble Lord, Lord Pitt, moved, I have promised to look at this point about the information which it would be proper for central Government to offer to local authorities. In doing this central Government always have to tread warily. One of the first things is to see what the local authorities are in fact doing. Therefore, I do not think I can go further than the undertaking I have given.
§ On Question, amendment agreed to.
§ Clause 7 [Registration by virtue of marriage]:
§ 4.18 p.m.
Baroness Birk moved Amendment No. 52:
Page 8, line 37, after ("made") insert ("(subject to subsection (4)").
§ The noble Baroness said: My Lords, in moving Amendment No. 52 I will, if I may, speak also to Amendments Nos. 53, 54 and 55; No. 55 is really the substantive amendment. These amendments deal with the hard cases which wives may suffer which may result from the imposition of time limits in the Bill. Under the existing law any wife of a British man has an absolute right to register as a British citizen. As the Bill stands, she will lose that right if she does not apply for registration within five years after commencement. At the Committee stage of the Bill I moved—alas, unsuccessfully—two amendments (Hansard, 21st July) to leave out the five year time limit altogether.127
§ The Minister on that occasion said that he felt that was going too far and that there should be some form of time limit.
§ However, the situation has now changed considerably, because of the amendments we have now agreed to. Even if on Third Reading there is any change in Amendment No. 51 to Clause 6, it still does not affect the substantive point I am making. The amendments allow an extra three years' discretionary registration for Commonwealth citizens beyond the five year entitlement already provided for. It would, therefore, it seems to me, be a gross anomaly if a similar extension of three years' registration at discretion is not now allowed to women married to British men. It is not just a question of getting a nice consistency or getting everything in order because there will be some couples who simply may not know of the five-year entitlement in time to exercise it and it could be a real hardship to impose the naturalisation requirements. However, there are also other arguments in favour of these amendments.
§ Whereas the Commonwealth citizens who will be protected by the discretion now inserted in Clause 6 would all by definition be people who have lived here continuously for some time, the foreign wives of British men—the people about whom I am talking in these amendments—are in many cases living abroad with their husbands and therefore have less opportunity of knowing their rights under the new law. Further, where a woman would be able to apply for registration under Clause 7(2) within five years only, if her English is poor and unhappily she can no longer rely on her English-speaking husband—I am here referring to a widow—to find out her legal rights for her she will be at a disadvantage. In some cases widows would find the higher fee for naturalisation a further bar to applying for citizenship. There will also be cases where a woman who has lived abroad travelling with her husband due to his work has not thought of any particular advantage in applying for the same citizenship as her husband until the time comes when they settle in this country because of change of job or retirement.
§ To put it briefly, this seems to me to be quite a small but very important point. All that I am asking the Government to do is to be consistent and to insert in Clause 7 exactly what they have done in Clause 6. I beg to move.
§ Lord Belstead
My Lords, the noble Baroness, Lady Birk, is asking for consistency between Clause 7 which we have now reached and Clause 6 which we have just left. However, the two situations which the noble Baroness has outlined are rather different and it is not appropriate that the drafting of this amendment, which of course is very much the same as the drafting of the previous Government amendment as regards Clause 6, should be the same and the reason is as follows. Clause 6 applies not only to people who have an entitlement immediately before commencement but also to young people who acquire an entitlement to citizenship after commencement.
The people who acquire the entitlement after commencement can only do so during the five-year period. 128 That is why the amendment contained the words:but shall not do so unless the person to whom the application relates would have been entitled to be registered … on an application made immediately before the end of the five years".Those words, however, are not needed in Clause 7 because the women who are covered by Clause 7 could not become entitled after commencement. It will no longer be possible then to marry citizens of the United Kingdom and Colonies because that status, after commencement, will have disappeared. There are, however, other reasons why the Government doubt whether an extension, which is the effect of this amendment, is desirable in this area.
The main reason for extending the time limit in Clause 6(1) was to meet the needs of minors who, on reaching full age, became entitled in the five years after commencement perhaps right at the end of the five-year period. But all the people who are covered by Clause 7 will have been entitled from commencement and so all will have a clear five years in which to apply. The number of cases in which the Secretary of State might feel that discretion should be exercised would therefore be very small. Of course, one could not say that a case could never arise. Nevertheless, I think that there must be some cut off to the transitional provision which is being made in Clause 7 and the Government feel that a five-year period is a reasonable one.
I should like to add to the five-year period the fact that the general public know that this Bill is going through Parliament and women who could be affected by this will also have the period after the Bill—if it goes on to the Statute Book—finally receives Royal Assent and the time when commencement would take place—and that could be many months.
In case your Lordships may think that this is just a bureaucratic reply and I am simply saying that five years is a good time and that that is the length of time which the Government will agree, I should like to say that I really think that there is another reason for the five-year period in Clause 7 and that is the need for our nationality law to provide for equal treatment wherever possible as between sexes. A power to extend the time limit in Clause 7 would mean that it would take that much longer for us to achieve this objective. I would remind your Lordships that Clause 7 continues for a transitional period only existing entitlements which may be held by women but not by men.
Therefore, to sum up, the two contexts of Clauses 6 and 7 upon which this amendment is based are really not comparable. As far as Clause 7 is concerned the Government see advantage in bringing the current arrangements under which the sexes are treated differently to a clear and certain end and we feel that five years is quite a long and reasonable period for that. I hope that perhaps your Lordships may take the same view.
§ Baroness Birk
My Lords, I am not really convinced. It all sounded very good, as I am sure it was meant to do, but I am not completely convinced. I cannot help thinking that all the way through we have seen the Government take a figure—five years—and then under pressure we had eight years and as has been questioned during the progress of the Bill why on earth can we not make it ten years. There is not anything sacrosanct about the five years to which the Government have been clinging. As I recall it, in the Commons once there was 129 agreement to extend, for example, two-year entitlements to five years the Government went through the whole Bill altering the two year entitlements to five years. From the Government's point of view, I should not have thought that it would substantially make all that much difference. It is a discretion that I am asking for; I am not asking for a mandatory eight-year period. It would make it easier in trying to promote some sort of understanding of the horrendous complexity of this Bill—a phrase used yesterday by the noble and learned Lord the Lord Advocate—if there were consistency as regards the period. That would be a great help. However, I should like to take the matter back, think about it once more and read with care what the Minister has said. If I feel that the matter should come back again or indeed needs slight redrafting, I shall bring it forward on Third Reading.
§ The Deputy Speaker (Lord Nugent of Guildford)
My Lords, does the noble Baroness wish to withdraw the amendment?
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 53, 54 and 55 not moved.]
§ The Deputy Speaker
My Lords, before calling the next amendment I have to inform your Lordships that the number of those voting Not-Content in Division No. 1 was 134 and not 133 as announced.
§ Clause 8 [Right to registration by virtue of father's citizenship etc.]:
§ Lord Mackay of Clashfern moved Amendments Nos. 56 and 57:
§ Page 9, line 43, leave out from ("if") to ("the") in line 44 and insert ("(a)")
§ Page 10, line 1, leave out from ("(b)") to ("become") in line 2 and insert ("had that person been born before commencement and").
§ The noble and learned Lord said: My Lords, Amendments Nos. 56 and 57 are on the Secretary of State satisfaction point. I should like to move them together if that accords with the convenience of the House. I beg to move.
§ On Question, amendments agreed to.
Lord Avebury moved Amendment No. 58:
After Clause 8, insert the following new clause:
§ ("Registration by virtue of mother's citizenship
§ .On an application for his registration as a British citizen the Secretary of State may, if he thinks fit, cause a person to be registered as such a citizen if he would have become a British citizen by virtue of section 11 of this Act, if in section 5(1) of the 1948 Act (citizenship by descent), "father" wherever it appears had been followed by "or mother".").
§ The noble Lord said: My Lords, I beg to move Amendment No. 58. As your Lordships will be aware what is proposed in this Bill is that women should n future be able to transmit their citizenship on equal terms with men to their children who are born abroad after commencement of the Act. But this will not affect the position of children who are already alive 130 when the legislation comes into force and whose mothers become British citizens under the Bill. In another place Mr. Timothy Raison explained to the Standing Committee which discussed this matter that if we were to make the provision retrospective it would mean conferring British citizenship on people of all ages living in various countries, many of whom would have connections with Britain which were extremely tenuous and many of whom would not welcome having British citizenship thrust upon them, particularly if they are adults because, as he explained, it might well affect their existing citizenship.
§ Therefore, when we last considered this matter in Committee I proposed that British citizenship should be conferred only on children who were born overseas of British mothers if they made an application in that respect. The noble and learned Lord the Lord Advocate, who then replied, said that this did not commend itself to the Government. He said that the amendment would apply to persons who ought properly to be able to obtain British citizenship anyway by reason of their residence in this country if they had the necessary qualification of five years, which applies for naturalisation; or the amendment would cover people whose future really lies outside the country and who do not have the sort of tie or connection which is the essence of British citizenship under this Bill.
§ As your Lordships will be aware, since February 1979 under a concession that was made by the former Home Secretary, Mr. Merlyn Rees, a woman born in the United Kingdom has been able to transmit her citizenship to a minor child born abroad, the Home Secretary having a general discretion to accept those minor children as citizens of the United Kingdom and Colonies. However, there are two eventualities which are not taken into account. The first is if the mother has omitted to register the child as a citizen of the United Kingdom and Colonies and the time has now expired when it would be possible to do so because the child is no longer a minor; the second is if the child was already an adult at the time when the former Home Secretary made this concession to sex equality.
§ In reply to the previous amendment the noble Lord, Lord Belstead, has just said that the whole object in this nationality law is to provide for equal treatment between the sexes. Therefore, I now propose an even more modest suggestion than that which we considered in Committee. It is simply that the Secretary of State should have a discretion to register the children of British citizen mothers overseas as British citizens themselves. So we are not talking about an entitlement any more. The objections which the noble and learned Lord, Lord Mackay, expressed in Committee and which he repeated in a letter to the noble Baroness, Lady Trumpington—a copy of which he was good enough to send me—no longer have any force. He said that it would be wrong to provide an entitlement to British citizenship for those who remained abroad for most of their lives.
§ What we are suggesting now is not an entitlement, but simply a discretionary provision which the Secretary of State could obviously exercise only in the case of people like the correspondents of whom the noble and learned Lord is aware—people like Mr. Mark Sebba and Mr. Joe Abboud, both of whom have written to several of your Lordships, including I think the noble 131 Baronesses, Lady Trumpington and Lady Lockwood, myself, and so on. I believe that these gentlemen have demonstrated that they have very strong and continuing connections with the United Kingdom. Through their mothers they have, if you like, inherited a love of this country and have an affinity with our culture which I should have thought gave them a close tie or closer ties or connections with the United Kingdom than, for instance, those of a person who has a British grandfather but who is the second generation of the family to have lived in New Zealand, who has never been here, who never intends to come but who nevertheless is entitled to enter the United Kingdom whenever he pleases, to reside here, to enter employment and to do all the other things which patrials may do.
Therefore, I think that it would be only reasonable to extend this concession to the children of those mothers. In support of my case I should like to refer the noble Lord the Minister to a provision which has been enacted by a Government, not of dangerous Reds, but that of Mr. Muldoon in New Zealand. The New Zealand Citizenship Act 1977 provides that the Minister:
shall, upon application made to him in the prescribed manner, authorise the grant of New Zealand citizenship to any person who was born before the first day of January 1978 if at the time of that person's birth his mother was a New Zealand citizen otherwise than by descent".
Therefore, we are not proposing anything very far-reaching or drastic. If this very minor concession can be brought into force by a Government as reactionary as that of Mr. Muldoon, I should have thought that it must obviously be acceptable to such a liberal Minister as the noble Lord, Lord Belstead. Therefore, I beg to move.
§ 4.38 p.m.
§ Lord Elystan-Morgan
My Lords, the noble Lord, Lord Avebury, it seems to me has given voice to a worthy case, a case which is founded in reason, in principle and in consistency. It is a case that, to a large extent, was endorsed by the decision of the then Home Secretary in February 1979 in this context: to place the two sexes on a par of total equality. Therefore, I urge the Minister to consider that this is a very proper case to exercise that understanding and chivalry which has characterised our deliberations in this Bill so far. There are no dangers, for the safety net of ministerial discretion is present to deal with any inappropriate case. I have been greatly impressed by the remarks of the noble Lord and heartily endorse them.
§ Baroness Trumpington
My Lords, it is indeed true that I have been approached by these various people, and in particular in the case of Mr. Mark Sebba I have great sympathy, as he would have been eligible to have British nationality but for the accident of his birth, whereby by one week he become a major and lost that right. I have taken as many steps as I can with the Minister, and, having been to see him as recently as last week about this matter, I therefore look forward to his reply.
§ Baroness Lockwood
My Lords, as the Minister will be aware, I have on many occasions raised with his department the anomalies that have arisen in the past because of the fact that women have been unable to pass on citizenship to their children. I am very grateful for the way in which the Minister has handled this Bill and for the care which he has taken to try to ensure that there is equality between men and women in this important area.
I recognise that it is difficult to take retrospective action, and I appreciate some of the points which have been made in the past about extending retrospective action to cover the cases of all women and their children who may have been in this unfortunate situation. However, I think that the amendment before us today is so modest and would cause so little trouble to the department that some concession could here be made to try to rectify past discrimination.
I hope that the Minister will be able to accept this amendment. As the noble Lord, Lord Avebury, has said, not only I personally but also the commission of which I am chairman have received representations on behalf of the two people mentioned and also, again as I have indicated in the past, we have had greater representation about a larger problem. But this is a small problem covered by this particular amendment, and I hope that the noble Lord the Minister will be able to accept it.
§ Lord Belstead
My Lords, this amendment moved by the noble Lord, Lord Avebury, and spoken to by my noble friend Lady Trumpington, the noble Lord, Lord Elystan-Morgan, and also the noble Baroness, Lady Lockwood, would open the way to retrospective transmission of citizenship in the female line. We see difficulties in this amendment from the point of view of the Government. While it is true that present nationality law does not allow automatic transmission of citizenship in the female line, it is in fact the case that many of those with mothers who are citizens of the United Kingdom and Colonies will already have been able to obtain citizenship.
Minor children born overseas to women citizens born in the United Kingdom are at present able to acquire citizenship of the United Kingdom and Colonies under the concession which was extended, as noble Lords have said, by the former Home Secretary, Mr. Merlyn Rees, to register minor children under Section 7 of the British Nationality Act. Since February 1979 it has been the practice to register children in these circumstances provided that there is no well-founded objection by the father. It is reasonable to take account of the father's wishes in this area since very often these are cases where the children are living in their father's country and very often they have his citizenship. A large number of children are registered each year in this way, and I envisage that these arrangements will continue after the Bill comes into force for children born before then.
Moreover, registration under Section 7 of the 1948 Act could also have been applied for in other cases of birth to United Kingdom overseas women. Citizenship would normally have been granted in this way where the child was living with his parents in this country and his future clearly lay here. Adults, too, would have been able to obtain our citizenship by 133 registration or naturalisation if they had returned to this country to live and established themselves here.
So, my Lords, those who would be eligible for the Home Secretary's discretion under the amendment would either be children whose future clearly lies outside this country or adults who have in fact up to this time spent their lives abroad. We do not think a discretion to enable such people to acquire our citizenship could be justified since to grant those people citizenship would be contrary to the Government's aim in this Bill of trying to make the new British citizenship a status for those who have a close and a continuing relationship with the United Kingdom.
In saying that, of course I realise that Lord Avebury's amendment would grant only a discretion to the Secretary of State in this matter. But I am afraid this does not really alter what I have been saying, for this reason: in the first place, we do not think that a discretion to grant citizenship to those whom this amendment seeks to benefit would really be justified for the reasons I have been giving. But also if the Secretary of State had the discretion there would undoubtedly—and this debate has shown it—be great pressure upon him continuously to use it, having to take it case by case, and the Secretary of State would be saddled with a discretion which, for reasons I have endeavoured to deploy, he would not really think he ought to be using at all.
I am sorry not to be able to accede to what has been said in this debate, but the truth of the matter is that to unravel the past is, as the noble Baroness, Lady Lockwood, generously said, extremely difficult. For the reasons that I have given, it is something which I do not think we can do. All we can do in this Bill is to say that there shall be sex equality in the future, and do our best to see that on those grounds the Bill is as fair as possible.
§ Lord Avebury
My Lords, that is an abysmally bad answer and contrasts markedly unfavourably with those which the Minister has been good enough to give on all previous amendments. I am very disappointed in his statement that in sex equality some will be more equal than others, and I am afraid that I cannot accept the explanation that he has given. He said that since February 1979 it has been the practice to register as citizens of the United Kingdom and Colonies children born overseas to mothers who wish to register them. He neglected to make any reference to the point that I raised about what happens to the children of mothers where either the mother neglects to apply while the child is still a minor or she is totally unaware of the Merlyn Rees concession and so by the time it comes to notice it is too late and the child is an adult.
Then the Minister said, repeating what has been given as the reason for refusal of anything like this amendment on previous occasions, that when the child becomes an adult, if he succeeds in returning and establishing himself in this country then he will be able to apply for British citizenship in the normal way. We all know that, but suppose that he does have the kind of tie or affinity with the United Kingdom that somebody like the two gentlemen we have mentioned are known to possess, and which has been admitted on 134 all sides. The Minister does not argue that, and carefully does not address himself to the case put forward by the noble Baronesses, Lady Trumpington and Lady Lockwood, and myself on behalf of the two particular individuals—outstanding cases of gentlemen who do have close ties or connections with this country but who are not entitled to remain here permanently and therefore will not acquire the necessary right of abode which would enable them to become citizens by naturalisation.
If the Minister is saying that the future of those two gentlemen lies outside this country when the whole of their ethos, culture and background are steeped in Britain, then I am afraid he is turning away people who would be good and loyal citizens if they were given the opportunity. Because I feel so strongly about this I must ask your Lordships to come with me into the Division Lobby against the Government.
§ 4.49 p.m.
§ On Question, Whether the said amendment (No. 58) shall be agreed to?
§ Their Lordships divided: Contents, 80; Not-Contents, 123.135
|DIVISION NO. 2|
|Airedale, L.||Jenkins of Putney, L.|
|Amherst, E.||John-Mackie, L.|
|Ardwick, L.||Kaldor, L.|
|Avebury, L. [Teller.]||Kennet, L.|
|Aylestone, L.||Leatherland, L.|
|Balogh, L.||Llewelyn-Davies of Hastoe, B.|
|Banks, L.||Lloyd of Hampstead, L.|
|Beswick, L.||Lloyd of Kilgerran, L.|
|Bishopston, L.||Lockwood, B.|
|Blease, L.||Lovell-Davis, L.|
|Blyton, L.||McCarthy, L.|
|Boston of Faversham, L.||Maybray-King, L.|
|Briginshaw, L.||Mayhew, L.|
|Brockway, L.||Molloy, L.|
|Bruce of Donington, L.||Oram, L.|
|Byers, L.||Parry, L.|
|Chitnis, L.||Peart, L.|
|Collison, L.||Phillips, B.|
|Cooper of Stockton Heath, L.||Pitt of Hampstead, L.|
|Darling of Hillsborough, L.||Ponsonby of Shulbrede, L.|
|David, B.||Rochester, L.|
|Davies of Leek, L.||Ross of Marnock, L.|
|Davies of Penrhys, L.||Sainsbury, L.|
|Donaldson of Kingsbridge, L.||Seear, B.|
|Elwyn-Jones, L.||Sefton of Garston, L.|
|Elystan-Morgan, L.||Shinwell, L.|
|Evans of Claughton, L.||Simon, V. [Teller.]|
|Ewart-Biggs, B.||Stewart of Alvechurch, B.|
|Feversham, L.||Stewart of Fulham, L.|
|Fisher of Rednal, B.||Tanlaw, L.|
|Gaitskell, B.||Taylor of Gryfe, L.|
|Gifford, L.||Taylor of Mansfield, L.|
|Glenamara, L.||Underhill, L.|
|Grey, E.||Wallace of Coslany, L.|
|Hale, L.||Wells-Pestell, L.|
|Hampton, L.||White, B.|
|Hanworth, V.||Wigoder, L.|
|Hunt, L.||Wilson of Radcliffe, L.|
|Jacques, L.||Winstanley, L.|
|Jeger, B.||Winterbottom, L.|
|Airey of Abingdon, B.||Auckland, L.|
|Alport, L.||Avon, E.|
|Ampthill, L.||Beloff, L.|
|Belstead, L.||Long, V.|
|Birdwood, L.||Loudoun, C.|
|Boardman, L.||Lucas of Chilworth, L.|
|Boyd-Carpenter, L.||Luke, L.|
|Campbell of Alloway, L.||Lyell, L.|
|Campbell of Croy, L.||McAlpine of Moffat, L.|
|Chelwood, L.||McFadzean, L.|
|Clitheroe, L.||Mackay of Clashfern, L.|
|Cockfield, L.||Macleod of Borve, B.|
|Coleraine, L.||Mancroft, L.|
|Colville of Culross, V.||Mansfield, E.|
|Cork and Orrery, E.||Margadale, L.|
|Cottesloe, L.||Marley, L.|
|Craigavon, V.||Milverton, L.|
|Cranbrook, E.||Morris, L.|
|Crathorne, L.||Mountevans, L.|
|Cromartie, E.||Mowbray and Stourton, L.|
|Cullen of Ashbourne, L.||Murton of Lindisfarne, L.|
|Daventry, V.||Newall, L.|
|Davidson, V.||Norfolk, D.|
|de Clifford, L.||Northchurch, B.|
|De La Warr, E.||Nugent of Guildford, L.|
|De L'Isle, V.||Onslow, E.|
|Denham, L.[Teller.]||Orkney, E.|
|Dilhorne, V.||Orr-Ewing, L.|
|Drumalbyn, L.||Penrhyn, L.|
|Dundee, E.||Plummer of St. Marylebone, L.|
|Elles, B.||Portland, D.|
|Elliot of Harwood, B.||Redcliffe-Maud, L.|
|Elton, L.||Redmayne, L.|
|Exeter, M.||Renton, L.|
|Faithfull, B.||Rochdale, V.|
|Ferrers, E.||Romney, E.|
|Ferrier, L.||St. Davids, V.|
|Fortescue, E.||St. Germans, E.|
|Gainford, L.||Sandford, L.|
|Garner, L.||Sandys, L.[Teller.]|
|Geddes, L.||Sharples, B.|
|Gisborough, L.||Skelmersdale, L.|
|Grey of Naunton, L.||Spens, L.|
|Gridley, L.||Stamp, L.|
|Grimston of Westbury, L.||Strathclyde, L.|
|Hailsham of Saint Marylebone, L.||Strathspey, L.|
|Hankey, L.||Swinfen, L.|
|Harvington, L.||Terrington, L.|
|Hawke, L.||Teviot, L.|
|Henley, L.||Thorneycroft, L.|
|Hives, L.||Trefgarne, L.|
|Hornsby-Smith, B.||Trenchard, V.|
|Ilchester, E.||Vaizey, L.|
|Kemsley, V.||Vaux of Harrowden, L.|
|Killearn, L.||Vickers, B.|
|Kilmany, L.||Vivian, L.|
|Kinloss, Ly.||Ward of Witley, V.|
|Kinross, L.||Willoughby de Broke, L.|
|Kitchener, E.||Wolverton, L.|
|Lane-Fox, B.||Young, B.|
|Lindsey and Abingdon, E.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 9 [Right to registration replacing right to resume citizenship of U.K. and Colonies]:
§ 4.57 p.m.
Lord Mackay of Clashfern moved Amendment No. 59:
Page 10, line 37, leave out ("the Secretary of State is satisfied that").
§ The noble and learned Lord said: This amendment is self-explanatory, my Lords. I beg to move.
§ On Question, amendment agreed to.136
§ Lord Belstead moved Amendment No. 60:
Page 10, line 45, at end insert—
("(1A) On an application for his registration as a British citizen made by a person of full capacity who had before commencement ceased to be a citizen of the United Kingdom and Colonies as a result of a declaration of renunciation, the Secretary of State may, if he thinks fit, cause that person to be registered as a British citizen if that person—
§ The noble Lord said: My Lords, I will, with permission, speak at the same time to Amendment No. 61. These amendments arise from an undertaking which I gave on 21st July, when I said the Government would look seriously again at the case for a discretionary provision which would enable people who had renounced citizenship of the United Kingdom and Colonies to resume that citizenship at discretion and, I was speaking at that time to amendments tabled by the noble Lord, Lord Avebury. I hope I made it clear, however, that his amendments were not acceptable to the Government because they would have removed the requirements that a person resuming our citizenship should have an appropriate qualifying connection with the United Kingdom.
§ The Government believe that British citizenship should not be conferred on a person who does not have an appropriate qualifying connection as defined in Clause 9(3), but where such a connection is held, Clause 9 as it stands covers only those who renounced their citizenship of the United Kingdom and Colonies because they had to do so if they were to be able to keep or obtain another Commonwealth citizenship. There could be people who renounced citizenship for other reasons than that they had to do so to acquire another Commonwealth citizenship and their case for resuming our citizenship could deserve sympathetic consideration. These amendments do not extend the entitlement now in Clause 9, but they add a discretion to deal with cases of people who have an appropriate qualifying connection but do not meet the criteria for the entitlement. I should mention that the permanent provisions for resumption by people who renounce British citizenship, which are to be found in Clause 13, already contain, at subsection (3), a discretionary power of this kind, so the amendment brings this clause into line with that clause. I beg to move.
§ Lord Avebury
My Lords, I am grateful to the Minister, following the discussion we had in Committee, for having given some thought to the question of the resumption of citizenship and for tabling this amendment, which deals with the position of those who had a qualifying connection, persons who renounced United Kingdom citizenship, as the Minister said, for the purpose of becoming citizens of another Commonwealth country, such as was mentioned in Section 1(3) of the British Nationality Act 1964, and who would have been entitled to resume it under Section 1(1) of that Act.
The noble Lord and I have both addressed ourselves to the case of a person who lacked the qualifying connection of a father or grandfather born, registered or naturalised in the United Kingdom or in an existing colony. My proposals in Amendments Nos. 62 and 137 63 (if I may speak to these amendments with the amendment of the noble Lord) are formulae which cover the case, of which I think the noble Lord is aware, of a person who did not have the necessary qualifying connection under the British Nationality Act, but who was nevertheless eligible to be considered under the discretionary procedures which obtained under the 1964 Act. The then Minister who dealt with these matters, the noble Duke, the Duke of Devonshire, in discussions of the problem that we are now facing in the Immigration Act 1968, gave an assurance that those powers to confer citizenship on a discretionary basis would be liberally interpreted for the East African Asians, a group about whom I am concerned in this amendment. Those are persons who renounced citizenship of the United Kingdom and Colonies in order to become a citizen of one of the independent countries concerned, and who did not have the necessary qualifying connection of a father or grandfather, as I have described.
I have had the duty of bringing to the attention of Ministers some cases of persons who applied for resumption of nationality, having previously renounced their citizenship under Section 1 of the British Nationality Act, and, as the Minister may be aware, in at any rate some of these cases the individuals concerned were not informed that there were discretionary provisions under which they could ask to be considered. Nevertheless in the end the particular case that I have in mind—I think that the noble Lord will be aware of it because it has been the subject of fairly extensive correspondence—resulted in a correction being made to the literature which was being sent out by some of our posts overseas, so as to make it clear that a person had the power to make an application for his case to be considered under the discretionary provisions instead of, as was formerly the case, persons without the qualifying connection being told that they were not eligible, full stop, and that there was no way in which they could be taken into consideration at all.
I am very happy to say that, as a result of the advice that was given to our High Commissions in Dar es Salaam in particular, and in one other post (Bombay), an individual who had been told that he was not previously in any way qualified was subsequently registered as a citizen of the United Kingdom and Colonies. What I want to do by the amendments that are in my name is to ensure that in some way the Secretary of State may continue to exercise the discretion which he has had the power to use in the past.
I think that my Amendment No. 62 is very similar to the amendment tabled in the name of the noble Lord the Minister. It might be slightly better, since it follows the language of the 1964 Act. But Amendment No. 63, in my name, really embraces Amendments Nos. 62 and 60. It goes wider than eithàr of them, and I really hope that it is the one that the Minister will see fit to accept.
So I am only trying to continue with a provision that already exists in our legislation. I am not forcing on the Minister anything with which he does not feel able to comply, because the provision is discretionary, and I hope that this small amendment, which will benefit a tiny number of people, will prove itself to be acceptable to the Minister.
§ 5.5 p.m.
§ Lord Elystan-Morgan
My Lords, we on these Benches welcome the Government's Amendment No. 60 and consider that, though limited in scope, it undoubtedly has a very proper liberalising effect upon Clause 9. It is surely right in principle that a person who has renounced British nationality in favour of a state that is outside the Commonwealth should be treated on exactly the same basis as a person who has renounced British nationality in favour of a country within the Commonwealth. I do not think that it would be realistic or proper to seek to draw any distinction between those two classes.
Under existing British nationality law, a person cannot renounce British nationality unless he has obtained, or is about to obtain, the nationality of another state. Of course in practice he renounces only when the other country concerned does not allow dual nationality. Such a person may in many cases later want to renounce the other assumed nationality, so as to become British again, and in the circumstances I think that one must accept that so many changes occur in the life of an individual that it is utterly right and proper that he should be entitled to expunge, as it were, his earlier act of renunciation.
I should like to raise one small matter in relation to provision (1A)(b), which states:if a woman, has been married to a person who has, or would if living have, such a connection".Should not a man in exactly the same situation be entitled to claim the connection through his wife? Is there not here the danger that one has perhaps the exceptional case of reverse discrimination? I should be very grateful to hear the Minister's views on that latter matter.
As I understand it, the House is at the same time considering Amendment No. 63, to which the noble Lord, Lord Avebury, has already spoken. We on these Benches support that amendment, too, and perhaps I may be allowed to make this very short point. The effect of Amendment No. 60 in the main will be to confer benefit upon people who, in the very large majority, are of white colour. The amendment proposed by the noble Lord, Lord Avebury, deals with a small, limited group of people, extremely underprivileged and more often than not in a very hazardous situation, and almost exclusively coloured. In my submission it is right and proper that both amendments should be carried.
§ Lord Belstead
My Lords, I am in the hands of the House, but since we were speaking to two amendments but are now debating four amendments, if your Lordships agree, I shall reply to the points that have been put to me.
First, I should like to deal quickly with a point put to me by the noble Lord, Lord Elystan-Morgan, referring to subsection (1A)(b) in the Government's amendment. That paragraph of the subsection states:if a woman, has been married to a person who has, or would if living have, such a connection".The noble Lord asked whether that should not apply also to a man. With respect, the answer is, no, it should not, because Clause 9 is transitional, referring to matters up to commencement, and of course at the moment a man cannot become a citizen of the United 139 Kingdom and the Colonies through marriage. If the noble Lord is concerned about the man's entitlement in these matters, he needs to look on to Clause 13 for that.
So far as concerns the really substantive point which the noble Lord, Lord Avebury, is making in speaking also to his Amendments Nos. 62 and 63, I am sorry but I really do not think I can join with the noble Lord, Lord Elystan-Morgan, in welcoming what the noble Lord, Lord Avebury, has said. To the extent that the noble Lord, Lord Avebury, wishes to extend the scope of resumption to people who have renounced for reasons other than the need to retain or acquire another Commonwealth citizenship, of course the Government are meeting the noble Lord's point. I thank the noble Lord for initially raising this whole area in Committee, and we are meeting that part of the noble Lord's whole point in Amendments Nos. 60 and 61. But, as I also indicated before and have indicated again, it really is unacceptable to the Government to extend the discretion to people who do not have an appropriate qualifying connection, and that is the effect of Amendments Nos. 62 and 63 in the name of the noble Lord, Lord Avebury. It is on those grounds that those two amendments are not acceptable to the Government.
§ Lord Avebury
But, my Lords, am I not right in thinking that under the 1964 Act there was a discretion to register a person who lacked a qualifying connection, and that the noble Duke the Duke of Devonshire, speaking for the then Government on the 1968 Bill, gave an assurance that that provision would be liberally interpreted, as indeed it has been? Further, did not the noble Lord, Lord Belstead, in a Written Answer to me on February 23rd of this year, reiterate that overseas posts had exercised in that liberal manner the discretion of which the noble Duke the Duke of Devonshire spoke? In the circumstances, does this not represent a change in the policy of Her Majesty's Government which dishonours the undertaking given by the noble Duke?
§ Lord Belstead
On that, my Lords, if the House will allow me, I really must reply. The answer to the noble Lord is that it is true that the noble Lord, Lord Avebury, is moving his amendments on the grounds that the power in them would be used solely at discretion and would, as the noble Lord says, be an extension of policy which was set down by previous Government Ministers in the 1960s. But the difficulty of the noble Lord's amendments would be that the discretion would be wholly at odds with the main aims of this Bill; so much so that it would be difficult to foresee that the discretion would be used at all. Its existence would lead people to hope and to expect that it would be used in their case, and the result would be to disappoint expectations in a way which would be regarded, I think, as cruel and misleading.
I really do think that it makes sense in the context of the citizenship which is being set out in this Bill—a citizenship which is supposed to denote a close tie with the United Kingdom and which carries with it a right of abode as of right—that the least one can ask is that when somebody is resuming they should at 140 least have a qualifying connection with the United Kingdom. It is that which is missing from the amendments set down by the noble Lord, Lord Avebury, and it is on those grounds that the Government part company with the noble Lord.
§ Lord Avebury
My Lords, may I ask the noble Lord one question before he sits down? Did he not tell me, in the Answer on 23rd February to which I have referred, that one person was registered under the discretionary provisions in 1976 and one person was registered in 1980? What difficulties did this create for Her Majesty's Government?
§ On Question, amendment agreed to.
Lord Belstead moved Amendment No. 61:
Page 11, line 1, leave out ("this section") and insert ("subsection (1)").
§ On Question, amendment agreed to.
§ [Amendment No. 62 not moved.]
§ Lord Avebury moved Amendment No. 63:
Page 11, line 12, at end insert—
("(4) If a person of full capacity who has ceased to be a citizen of the United Kingdom and Colonies as a result of a declaration of renunciation (for whatever reason made) makes an application for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.").
§ The noble Lord said: My Lords, for the reasons I have given, I must press this matter to a Division.
§ On Question, amendment negatived.
§ Clause 10 [Right to registration by virtue of United Kingdom nationality for European Community purposes]:
§ 5.15 p.m.
Lord Renton moved Amendment No. 64:
Page 11, line 13, leave out from ("person") to ("who") in line 15.
§ The noble Lord said: My Lords, I beg to move Amendment No. 64, the effect of which would be to leave out from this clause words which seem to me to be defective. In July your Lordships decided by a large majority to allow the people of Gibraltar to register as British citizens instead of remaining citizens of a British dependent territory, which they would become at commencement; that is to say, when this Bill reaches the statute book and comes into force. That would be the combined effect of Clause 23, Clause 50(1) and Schedule 6. I wish to assure your Lordships that I do not attempt to challenge the principle that was laid down and supported by a large majority of your Lordships in July, but what I feel obliged to do is to draw your Lordships' attention to the juridical fallacies by which that principle has been inserted in the Bill, especially in the first part of Clause 10, which is the part that I propose should be left out.
If your Lordships would look at Clause 10 on page 11, your Lordships will see that the words I propose to leave out are:
… who is a United Kingdom national for European Community purposes by virtue of the operation of Article 227(4) of the Treaty of Rome or …".
Perhaps I may remind your Lordships that the EEC
has no power to alter the citizenship laws of any of its member countries or of any of their dependent territories, whether those territories had associate status or any improved status, as a result of Article 227(4). Neither is that power given by any other provision of the Treaty of Rome; and it is not given by the Treaty of Accession. Article 227(4) is brief, and perhaps I may read it to your Lordships. It merely says:
The provisions of this treaty shall apply to the European territories for whose external relations a member state is responsible".
Therefore, of course, that would apply to Gibraltar. However, as a result of Article 28 of the Act of Accession (or Treaty of Accession, as it is sometimes called) Gibraltar happens to be exempt from the common agricultural policy and from the liability to VAT and some other taxes. I mention that not because of its specific relevance but in order that your Lordships may have a complete view of the position which Gibraltar holds as a result of the Treaty of Rome and the Treaty of Accession.
§ As I say, there are no provisions in the Treaty of Rome or in the Act of Accession which deal with citizenship. I therefore suggest to your Lordships that Article 227(4) is a strange foundation for what is being made an exception to our citizenship law as expressed in this Bill. If I may say so with respect to my noble friend Lady Vickers—and I am not trying to anticipate the principle which she is trying to assert—it seems to me that in relation to the Falkland Islands she has expressed the principle in a much more suitable way, and if it had been so expressed in relation to Gibraltar I would not be standing up now and moving this amendment before your Lordships' House.
§ There is another strange thing—to me, strange, at any rate—about the wording used in Clause 10. It is in the first line where it refers to "a United Kingdom national". That is not an expression which is used at all in our present law. In our present law, under the British Nationality Act 1948 and the subsequent legislation and all the time up to now, we have referred to a British subject or a Commonwealth citizen, to citizens of the United Kingdom and Colonies and to British protected persons. Neither is the expression "a United Kingdom national" used in this Bill apart from its use in this clause.
§ In the Bill we find the expressions "British citizens", "citizens of a British dependent territory" or "citizens of British overseas territories". We also use, really in order to make contact with the previous legislation, the expression in Part IV of the Bill "British subject". We refer in Clause 37 to the expression "Commonwealth citizenship", and in Clause 38 we refer to "British protected persons"; but nowhere do we find the expression "United Kingdom national". Therefore I would say that it is incongruous that it should be used in Clause 10. I hope that I have said enough, without impinging on the principle that was established by a large majority of your Lordships, to further the thought that the drafting of this clause is defective, has no juridical basis and ought to be changed.
§ 5.22 p.m.
§ Lord Elystan-Morgan
My Lords, while I agree with the noble Lord, Lord Renton, that there is absolutely 142 no reason why any attempt should be made to challenge the strong and certain majority in this House in favour of the Gibraltar amendment, I, too, have a number of questions to ask in relation to the whole issue of the status of British citizenship in the context of the European Economic Community. I make no apology for raising them within the four corners of this amendment, as I am sure that the House will agree that they are in each case matters of very considerable importance, not only in relation to the operation of this Bill if it becomes law, but are matters of general public importance.
On Britain's entry into the EEC, the Chancellor of the Duchy of Lancaster in December 1971 (then the right honourable and learned gentleman the Member for Hexham, Mr. Rippon) told the House of Commons that a declaration would be made with regard to British nationality. The wording of the declaration that defined British nationality given by the right honourable and learned gentleman was in these terms:Citizens of the United Kingdom and Colonies or British subjects not possessing that citizenship or the citizenship of any other Commonwealth country or territory who in either case have the right of abode in the United Kingdom and are therefore exempt from United Kingdom immigration control".That was the situation existing at that moment in time.
Some six weeks later there was a clause added to that definition to accommodate the special position of Gibraltar. There were added these words:Persons who are citizens of the United Kingdom and Colonies by birth or by registration or naturalisation in Gibraltar or whose father was so born, registered or naturalised".That was the situation upon our entry into the EEC.
When this Bill received its Second Reading in another place matters relating to the definition of British nationality were raised by the right honourable gentleman Sir Derek Walker-Smith, the Member for Hertfordshire, East. The Home Secretary gave this reply—and I quote from col. 941 of the House of Commons Hansard for 28th January this year:These matters are still under discussion with the European Community. I would therefore ask my right hon. and learned Friend the Member for Hertfordshire, East … to allow my right honourable Friend to give a detailed reply on that matter— …".When the Minister of State came to reply, however, no such detailed reply was given. I do not criticise the honourable gentleman for that for, like many in this House, I am sure that I appreciate the impossible task that a Home Office Minister has to face between 9.30 and 10 o'clock in winding up a debate which has ranged over perhaps scores of different topics.
Be that as it may, the situation appears to be at the moment that no such definitive reply has ever been given by Her Majesty's Government. In this situation I have three specific questions to ask of the noble Lords opposite who will be replying to this debate. First, has a final decision been reached in relation to the definition of British nationality and, if so, is it identical with the definitions contained in the Bill we are now concerned with? If it is identical, why was there a necessity for discussion at all?
The second question is this. If the definition is different from the definition in the Bill, will that different definition—and I am not sure that I agree with the noble Lord, Lord Renton, in this matter, although great and substantial is my respect for his learning in these connections—be imported into our 143 law under the provisions of Section 2(1) of the European Communities Act 1972? This House is well aware, I am sure, of that particular provision. It is the "over-lordship" provision that allows any authoritative instrument of the European Community to become immediately part of our laws irrespective of any contrary view taken by either House of Parliament.
Thirdly, if the definition which is, in fact, adopted is a different one and, for some reason, does not become imported into our law under the provisions of the Act of 1972, which of the two definitions—the European one, on the one hand, or the definition in the Bill—will apply to our nationals in other EEC countries and likewise to nationals of other EEC countries within the United Kingdom? I am sorry to put the matter in such an interrogative form but I should be grateful to have specific answers to each and every one of those questions.
§ 5.30 p.m.
§ Lord Bethell
My Lords, perhaps it will help if I intervene at this stage and say a few words about the amendment proposed by my noble friend and the effect, as I believe it, upon Clause 10. I am very grateful to my noble friend for saying that he does not wish in this particular amendment to challenge the principle established by your Lordships by a considerable majority when this matter was considered in Committee. His quarrels are merely with the drafting of the new clause which is now called Clause 10. I have one or two observations to make on my noble friend Lord Renton's speech of a few monemts ago.
It is true that Gibraltar is not mentioned either in the European Communities treaty or in the Treaty of Accession itself, but it is mentioned in a declaration by the United Kingdom Government annexed to the Treaty of Accession. I believe that it can therefore be argued clearly that through the operation of Article 227(4) of the original European Communities treaty Gibraltar has a special status. The term which I think bemused my noble friend, "United Kingdom national for European Communities purposes", is mentioned in that declaration at the end of the Treaty of Accession. I am sure that my noble friend Lord Belstead will confirm that it is the term normally used by the British Government in referring to that particular category.
It is true, as my noble friend Lord Renton pointed out, that it is not a term normally used up to now in discussing that type of citizenship. We do not normally refer to a "United Kingdom national"; but in this particular aspect it has been used in correspondence between Ministers and Members of your Lordships' House and another place and is enshrined in administrative practice.
I believe that this term does have a meaning in legal and practical terms and it was because of that meaning that the amendment was worded as it was. I hope that my noble friend, on reconsidering the matter, will see the purpose of the original wording. However, I should inform the House that a few days ago I was invited by a number of noble Lords, including my noble friend Lord Belstead, to consider again the drafting of Clause 10. I will in the next day or two be preparing a draft which will not change the principle 144 of Clause 10 but will be helpful to points raised by my noble friend Lord Belstead and enable that aspect to be clarified. It will not coincide exactly with the point raised by my noble friend Lord Renton.
I should be very happy—if my noble friend will allow me—to consult with my noble friend Lord Renton about the drafting amendment that I propose to put down at Third Reading. I will also be happy to let my noble friend Lord Belstead see what I propose in the hope that it will meet some of his drafting objections, although I understand that he may have objections of a more fundamental nature as a member of the Government; but at the moment I think that his worries are confined to the draft of the legislation. I hope that I have explained the situation clearly. In those circumstances, and given that I have undertaken to consult with him, I hope that my noble friend will feel that he is able to withdraw the amendment.
§ Lord Belstead
My Lords, my noble friend Lord Bethell has said that the Government may have reservations about Clause 10 other than drafting ones. I would remind your Lordships that of course that is the case. When the clause was moved by my noble friend Lord Bethell in the Committee stage of the Bill the Government Front Bench spokesman spoke extremely strongly against the advisability of accepting this clause and this still remains the view of the Government today. We have decided nevertheless that in view of the decision which your Lordships took we should not seek at this Report stage to remove the clause. I can however give absolutely no commitment as to the view which the Government shall invite the House of Commons to take, bearing in mind that a contrary view was taken during proceedings in another place. So far as the merits of my noble friend Lord Renton's amendment are concerned, I will not tread the ground which has already been trodden very expertly and with considerable care, having listened to the noble Lord, Lord Elystan Morgan, already in this debate.
As my noble friend Lord Bethell said, the reference to the words which my noble friend Lord Renton wishes to strike out of the Bill is the subject of a separate declaration annexed to the treaty which specifically mentions people connected in various ways with Gibraltar. Despite the view about that which my noble friend Lord Bethell gave, my noble friend Lord Renton may very well have a point. I do not know exactly how he would therefore wish to proceed. Maybe he would wish to read what has been said in this debate; maybe we all would like to do so and think about it. I should have thought that my noble friend Lord Renton certainly had a point in this respect.
On the specific questions which the noble Lord, Lord Elystan-Morgan, has asked, if the noble Lord will forgive me, the Government would like to have a little time to look at the three specific questions which he asked to see whether they affect the Government's general responsibility regarding the whole drafting of the Bill. We would want to be absolutely certain that nothing the noble Lord has asked affects that. Regarding specific responsibility for the clause moved into the Bill by my noble friend Lord Bethell, 145 I know that my noble friend will also want to look carefully at the points about which the noble Lord, Lord Elystan-Morgan, has asked.
§ Lord Elystan-Morgan
My Lords, with the leave of the House, I am grateful to the noble Lord for giving way. I appreciate that these are not matters which can be dealt with within the space of a few minutes. My noble and learned friend Lord Elwyn-Jones and I have put down an amendment to Clause 39. That will be dealing with rather wider EEC issues. It may well be that the noble Lord, Lord Belstead, might then like to avail himself of the opportunity of dealing with those matters which I apprehend, will not be reached, today.
§ Lord Boyd-Carpenter
My Lords, the House is dealing this afternoon not, as my noble friend Lord Renton or the Minister said, with the principle which the House supported by a large majority after full debate in July; we are concerned with the drafting.I am sure that whatever view your Lordships take or took on the issue of Gibraltar, we are all unanimous in the desire that the drafting which implements that decision should be as good, sensible and comprehensible as we can make it.
The suggestion which my noble friend Lord Bethell made of further discussions with the Minister in which he hoped—and I share the hope—that my noble friend Lord Renton would take part, is the sensible way to handle a matter on which it is perfectly clear that opinions even of distinguished lawyers vary and on which the rest of the House may feel it difficult to take a view. I suggest therefore to my noble friend Lord Renton that it might be the sensible practical course, now he has with his great authority raised this matter, to withdraw this amendment and allow the tripartite discussions which have been suggested to take place with a view to any necessary amendment being put forward at Third Reading.
I very much hope that my noble friend will decide to proceed in that way rather than seeking to impose what may well be a view of considerable force but which is not unchallenged as to drafting at this stage. We are not concerned, I am glad to say, with the merits of the matter, but I took note, as I am sure did others of your Lordships, of the Minister's clear indication that while the Government in this House are accepting a decision taken in Committee they make no commitment as to what suggestion they may make in another place. I need only say this to my noble friends; I am sure that in their consideration of that matter the Government will have very clearly in mind that a decision to go against a decision of this House might involve, given the timetable, the loss of the whole Bill.
§ Lord Renton
My Lords, I refrain from comment on that last remark from my noble friend Lord Boyd-Carpenter; but may I say how grateful I am to those noble Lords who have shown an interest in this amendment. If I may say so, I am also grateful for the spirit in which it has been discussed. Of course I would not wish to divide the House on such an amendment as this and I accept the advice which has been given to me that I should withdraw the amendment. I shall be only too glad to co-operate with my noble friends 146 Lord Bethell and Lord Belstead or with any other noble Lord in an endeavour to get this rather technical matter right.
The only thing I would wish to add to the discussion we have already had is this. The declaration which is appended to the Act of Accession—the declaration to which my noble friend Lord Bethell referred—was a declaration by the Government of the United Kingdom, and it is not part of our statute law. Even though the Treaty of Accession was ratified and its effect was embodied in the European Communities Act 1972, that declaration is not part of our statute law. Therefore —I hope I am not making unnecessarily heavy weather of this but it is important to get it right—the term "United Kingdom national" is incongruous, as I suggested, in the context in which it has been placed in Clause 10 of this Bill. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.44 p.m.
Baroness Vickers moved Amendment No. 65:
After Clause 10, insert the following new clause:
§ ("Falkland Islands residents
§ .(1) A person who immediately before commencement—
- (a) was a citizen of the United Kingdom and Colonies; and
- (b) was ordinarily resident in or one of whose parents was settled in the Falkland Islands,
§ (2) A person born in the Falkland Islands after commencement shall be a British citizen if at the time of the birth his father or mother is a British citizen.
§ (3) A new-born infant who after commencement, is found abandoned in the Falkland Islands shall, unless the contrary is shown, be deemed for the purposes of subsection (1):
- (a) to have been born in the Falkland Islands after commencement; and
- (b) to have been born to a parent who at the time of the birth was a British citizen.
§ (4) A person born in the Falkland Islands after commencement who is not a British Citizen by virtue of subsection (1) or (2) shall be entitled to be registered as such a citizen if, while he is a minor:
- (a) his father or mother becomes a British citizen or becomes settled in the Falkland Islands; and
- (b) an application is made for his registration as a British citizen.
§ (5) A person born in the Falkland Islands after commencement who is not a British citizen by virtue of subsection (1) or (2) shall be entitled on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person's life, the Secretary of State is satisfied that the number of days on which he was absent from the Falkland Islands in that year does not exceed 90, provided that time spent in the United Kingdom shall not be counted as absence.
§ (6) Where after commencement an order authorizing the adoption of a minor who is not a British citizen is made by a Court in the Falkland Islands he shall be a British Citizen as from the date on which the order is made if the adopter or, in the case of a joint adoption, one of the adopters is a British citizen on that date.").
§ The noble Baroness said: My Lords, I beg leave to move Amendment No. 65. On 28th July, at col. 715, I spoke of the position of the Falkland Islanders in the context of this Bill. Regrettably, the response from my noble friend the Minister was that the Falkland Islands are not and never have been part of the United Kingdom. However, this is a nationality Bill and I should like to suggest that the Falklanders were and 147 are closely connected with the United Kingdom. They all came from the United Kingdom and have no other language, except English. In 1833 when the earliest British settlers went out there, there was no indigenous population and their immigration laws have always been much stronger than ours here. When I was discussing matters with them I suggested that because of the shortage of their population they might take some Vietnamese refugees there. They were very indignant and said, "No, we are British and we want to keep the island British". Therefore, I tabled this new clause and I hope it will prove helpful to the Minister. I shall not go into details because everything is set out in great detail and I am sure that everybody can understand the amendment. I think it gives adequate safeguards to the Falkland Islanders and does not leave any loophole, which I think is most important for the future.
§ One has to remember that the people there have been connected with the Islands for up to as many as six generations. They are all descended from people who were English, Irish, Welsh or Scottish. I understand there are still some of the Chelsea pensioners left who settled there and were given the promise at that time of the right to retain British citizenship. The islanders have lived in a colony of the United Kingdom and I think they should be able to retain British nationality.
During the Second Reading of the Bill the noble Lord, Lord Soames, said:
The whole purpose of the Bill is to alter the British citizenship to those who are specifically and intimately connected with the United Kingdom and only with the United Kingdom".
I suggest that the islanders have no other connection. Those people I am discussing today are all connected with the United Kingdom. Some have even planned to retire here and some have bought little houses in Scotland. Some of them who have sons or daughters who are able to take over the farm management, for example, are planning to retire in this country. I cannot understand why there should be different treatment for the islanders when those living in the Channel Islands, many of whom have French ancestors are considered to be part of the British Nationality Bill. In column 725 on 28th July the Minister said this:
We are very conscious of the problems that the people of the Falkland Islands face and we are concerned to help them …".
We believe that the pledges we have given to the Falkland Islanders are much to be preferred to measures which, however well intentioned, would have consequences which could go a long way to nullifying the objectives of this long overdue legislation".
I would suggest that is rather an exaggerated statement for the 400 or 500 people we want to help today. I should also like to know what the pledges were, because he did not say.
Since that debate in this House there has been one in the Falkland Islands and they have decided to send a petition to the Prime Minister, stating their views. I have here a copy, and it states:
We, Falkland Islanders and supporters in the United Kingdom, earnestly request that Mrs. Thatcher and her Government reconsider the terms of the British Nationality Bill in order to accord full British citizenship to all islanders of British descent
That is all that is being asked for in this amendment. All parties have had a motion in their Council in the Falkland Islands and all parties have agreed to that request.
§ Two Members of the House of Commons one Conservative Member and one Labour Member, have recently been there and I met them on their return. They went as part of a Commonwealth Parliamentary Association delegation. They came back with first-hand views and have expressed to me the real anxiety of the people in the Falkland Islands, especially among the younger members. There is also the fact that HMS "Endurance", which used to patrol the waters round the Falklands, has now been withdrawn owing to the defence cuts. This makes them feel even more cut off than they were before. I should like to know whether there was a pledge of a period of years for which they would receive guardianship of their waters. Also, I should like to know whether, if an islander marries a non-islander and they come to this country, they will have to travel on different passports. Also, would they be allowed to stay here for more than six months? I understand that is quite a problem.
§ In the previous debate, I mentioned the excellent work done by the islanders in the last war. I understand now that they are carrying on traditions and being very loyal to this country. They buy British, and the delegates who came back said that they buy British cars and the only Japanese vehicles they saw were a few Honda motor cycles. So I consider they are as British as we are. I think they deserve this nationality and I am very grateful to my noble friend Lord Renton for the kind remarks he passed about my amendment. Therefore, I hope it will be considered by the Minister and others of your Lordships to be worthy of support, and I beg to move.
§ Baroness Trumpington
My Lords, as we all know, from the point of view of the Falkland Islanders this Bill creates a parallel citizenship as it does for the other British dependent territories, but it in no way weakens Britain's moral and constitutional responsibility for those in the dependencies—and this must never be forgotten. It must be right that the Government have taken the view that it would be invidious to devise separate and special citizenships for some dependencies and not for others. Making an exception for some dependencies would create the very type of anomalies which the Bill is designed to erase, and would lead to demands for equal treatment from those dependencies who might consider themselves less well-treated.
This House has seen fit to make a special case of for Gibraltar, the only British dependency that is part of Europe. So be it, but if I may paraphrase the Home Secretary when he spoke in the other place on 2nd June it is no good anyone telling me that the people of Hong Kong would not demand similar treatment and would not be deeply resentful, if they did not get it. I know that they would because they have told me so.
If we give way to some dependencies and not to others, I can think of no position more unsatisfactory. Surely this House recognises that the new form of citizenship for the British dependent territories is clearly necessary simply because it would not be possible, for immigration reasons, to accommodate all citizens within 149 one British citizenship. The particular case of the Falkland Islanders, as raised by my noble friend Lady Vickers, appears to relate to some 400 souls. But, in reality, the gate that could be opened by this seemingly tiny number of people could well lead to a flood of people from other parts of the world—all of whom could legitimately claim the right to live in this country.
It is said that many nursery rhymes were founded in historical fact and perhaps I may quote from Benjamin Franklin:For want of a nail the shoe was lost,For want of a shoe the horse was lost,For want of a horse the rider was lost,For want of a rider the battle was lost,For want of a battle the kingdom was lost,And all for want of a horseshoe nail".My sympathy is entirely with the Falkland Islanders, but I very much hope that my noble friend will not press her amendment. My Lords, think of the past. Think of the case of the Kenyan Asians. I urge you to think also of the unknown future. This country has a proud record, second to none in taking people from all parts of the world who have been the victims of political or religious persecution. But let us not create a situation here today which could perhaps result in an appalling prospect for this overcrowded island in the future, but one which can be prevented if what appears to be a tiny exception is not agreed to here today.
§ Lord Lloyd of Kilgerran
My Lords, may I briefly but very warmly support the amendment which has been so ably and eloquently introduced to your Lordships' House by the noble Baroness, Lady Vickers. In so doing, I should also like to pay tribute to her personally for the vast knowledge she has and for the work she has done in Commonwealth circles and particularly with regard to what is happening in the Falkland Islands. For many years, the noble Baroness has been a member of the executive committee of the Commonwealth Parliamentary Association and has done such wonderful work.
I first became interested in the anxieties and position of the Falkland Islanders when I had the privilege to be a member of the Commonwealth delegation to Jamaica which was so ably led by the noble Baroness, Lady Llewellyn-Davies, two or three years ago. Like the noble Baroness, Lady Vickers, I have also had an opportunity to talk to one of the members of the delegation of Commonwealth parliamentarians which visited the Falkland Islands a few days ago. I will make no comment or introduce the acrid atmosphere of party controversy when I note that there were only two members of the delegation and that no member of my party had the privilege of going to the Falkland Islands. But Mr. Shersby told me of the anxieties the Falkland Islanders have in regard to this matter. They fully appreciate and are grateful for the assurances which have been given by the Government. Clearly, this is a situation where no danger arises, as has been suggested, of vast numbers of people infiltrating this country. We are dealing with a small number of people. In my view, the assurances which have been given by the Government are not enough and I earnestly appeal to your Lordships to support the basic theme of the amendment which has been moved by the noble Baroness, Lady Vickers.
§ Lord Gisborough
My Lords, I agree that this amendment does deserve more consideration. As has been mentioned, the Islanders are entirely British. They speak English, and they are very few in number. They have strict immigration restrictions themselves, so they do not constitute a danger with regard to all sorts of people getting into Britain and becoming British, by first becoming Falkland Islanders. The Falkland Islanders have the very special problem, which is well known, with the Argentines. I believe this puts them quite apart from other dependency and makes them quite different from Hong Kong, because nobody could possibly suggest that all the people in Hong Kong are British stock.
Furthermore, if the Falkland Islanders were to receive special consideration by means of this amendment or something similar this would give them the reassurance which they require that at no time would they be ceded to the Argentines. I hope that this amendment will be given very strong consideration and, perhaps, your Lordships' approval.
§ 5.57 p.m.
My Lords, I should like to add my voice in support of the amendment which has been moved by the noble Baroness, Lady Vickers, and to disagree, with great respect, with the noble Baroness, Lady Trumpington. Perhaps I should preface my remarks by saying that I am not familiar with the Falkland Islands. My own polar journeys have taken me North rather than South. Possibly this is an advantage in that such views that I may express will be guided by principle rather than sentiment. I should like to make a brief prefatory remark in reminding your Lordships how strongly I dislike the principle underpinning much of this Bill; the principle by which many people at present enjoying full rights and status as holders of a United Kingdom passport will have that right diminished and taken away from them. I have always thought that this was wrong, and that the creation of different grades of citizenship and removing rights which exist was also wrong. Having said that, I must grudgingly accept that by a majority a Committee of this House has accepted that basic principle, but it does make it all the more essential to look at those cases where exceptions must be made, on moral or other grounds. If your Lordships look at Schedule 6 to this Bill, you will see that of all the 17 territories listed now as British dependent territories, there is only one whose inhabitants are incontestably and undeniably all of British stock in their origins and their blood ties—and that is the Falkland Islands and they are Falkland Islanders. No future change in the status of the Falkland Islands—which, of course, is being discussed—and no future generation or procreation of young islanders will alter that basic fact. They are, and they will remain, a small, united, loyal, ethnically British community. I understand that the Bill, when it comes into law, will affect some 400 out of 2,000 islanders. That is a very big percentage, one-fifth of the whole population, who will not enjoy the status of being British citizens in future. That is a divisive act which it is morally wrong to impose on these splendid people.
The only other thing that I want to say is that I think we should all regret that my noble friend Lord 151 Shackleton is not in the House today. He has had to go to the United States and, because he is a friend of mine in a non-political context, I undertook to say how sorry he was not to be here. He would have been able to speak from his background of family connection and from his knowledge displayed in the report with which your Lordships will be familiar, which he submitted to the Government of the day, about the future of the Falkland Islands. He would have been very much more effective than I have been in supporting the case for the amendment which has been put down by the noble Baroness..
§ Lord Boyd-Carpenter
My Lords, I see my noble friend Lady Vickers this afternoon in the role of temptress—
§ Lord Boyd-Carpenter
My Lords, it would be indelicate if I were to reply in kind to my noble friend and, perhaps, even discourteous. I should hate to be discourteous to her. But I use that expression because, if one were dealing with this matter in isolation, I should certainly find myself on her side. We are dealing with a very limited number of people of British origin in an isolated position, faced by wholly unjustifiable claims by the Argentine which have caused alarm to them, and there is little doubt that an amendment of this kind would give them a measure of assurance.
But we are not dealing with this matter in isolation. Thanks to the scheme of this Bill, which I personally deplore—as I have said to your Lordships on a number of occasions, I do not like the scheme of the Bill but the House has so far accepted it and, if it becomes law, it will have to be operated—it is difficult to make exceptions. So far as I personally am concerned, I argued at some length during the debate in July on Gibraltar, that it was possible to distinguish the case of Gibraltar, to secure to the Gibraltarians full British citizenship without—in the phrase that several of my noble friends on the Front Bench used several times in that debate—opening the floodgates.
I do not want to bore your Lordships by recalling that lengthy debate, but you will recall that the argument which in due course prevailed with a majority of your Lordships was that the European situation of the Gibraltarians distinguished them, clearly and sharply, from the other citizens of the United Kingdom and Colonies, as they now are, whose status is being affected by the somewhat unfortunate provisions of this Bill. I argued that view. It is a view that prevailed in the House as a whole, and I would therefore feel it very difficult personally to go back on it, even for such an attractive argument as my noble friend Lady Vickers has put forward.
If the Bill becomes law, I would feel that this was one of the unhappy consequences of it. But we have to proceed now on the basis that the House of Commons has approved the Bill, this House is now well into the Report stage and therefore, as a working hypothesis, it may well become law. On that basis, I feel that the rather overworked floodgates argument has force and therefore, much as I sympathise with my noble friend's point of view, much more as I sympathise with the 152 position of the Falkland islanders, for whom I have the greatest admiration, if my noble friend were to force this to a Division and the Government were to resist it I should find myself, none the less, not terribly happily, in the Government Lobby.
§ Lord Sandys
My Lords, I think it would be appropriate if, at this stage, the Government made a statement.
§ Lord Trefgarne
My Lords, of course my intervention now will not preclude my noble friend intervening later, if he feels that he would like to do so. I should like to begin by paying tribute to my noble friend Lady Vickers for the way in which she has presented her case for the peoples of the Falkland Islands. She has, indeed, again on this occasion presented their cause most cogently; her concern for their well-being—a concern which I know is shared in almost every part of your Lordships' House—has again been impressively displayed. The amendment that she proposes seeks to provide for the acquisition of British citizenship not only by those born in the Falklands after commencement, but also by those alive immediately before commencement who have ties with the Falkland Islands through their residence there, or because one of their parents was settled there.
The Government share the concern for the welfare of the peoples of the Falkland Islands, which my noble friend and many others have expressed. We greatly value their loyalty and appreciate the deep affection which the peoples of the Falklands have for this country and we have sought, and will continue to seek, to ensure that they and their children continue to enjoy the rights and privileges which they now hold. Nothing in this Bill alters our obligations and commitments to the people of the Falkland Islands. Nothing in this Bill deprives anyone in the Falkland Islands of any right that he or she now holds—and I should like to emphasise that point. Those in the Falkland Islands who now have the right of abode in this country through their ancestral ties with the United Kingdom—and that is the majority of the population there—will become British citizens on commencement and will continue to hold the right of abode for the rest of their lives.
But this amendment would, of course, go much further than that. It would, in effect, mean that virtually everyone with ties with the Falkland Islands would have a claim to British citizenship, no matter what were his ties with the United Kingdom. What is more, it means that British citizens living in the Falkland Islands will be able to transmit their citizenship to their descendants born there, without limit to the number of generations removed from the United Kingdom. It really is very difficult to reconcile this amendment with the concept of British citizenship reflected in the Bill—a citizenship confined to people who were born, naturalised or registered in the United Kingdom, generally speaking, or who are not more than two generations removed from such a person.
For the amendment can be seen in three parts. First, it would have no effect, as I have said, on the status under the new Act of the majority of the people of the Falkland Islands, who will be British citizens, 153 anyway, because they are within the prescribed relationships with the United Kingdom. Secondly, it would make a minority of the few hundred people of the Falkland Islands British citizens on commencement, as well as citizens of the British dependent territories, instead of simply the latter. Thirdly, it would allow the transmission of British citizenship indefinitely through the generations in the Falkland Islands—something not enjoyed by British citizens in any other dependency or, indeed, in any other country of the world.
Other dependencies have claims on our affections, too. They, too, have close ties with us in various ways and would no doubt argue that, if the people of the Falkland Islands should become on commencement British citizens, then they equally should enjoy concessions. Indeed, as my noble friend Lord Geddes, with all his experience of Hong Kong, put it when we last discussed this matter:… if precedents are set with respect to any of the dependent territories I can find no persuasive reason why those same arguments should not apply to all the dependent territories".We cannot simply ignore this argument. If this amendment is accepted, then it is bound to lead to great bitterness and resentment in other dependent territories and there will be pressure for concessions which, if met, would jeopardise the whole basis of this Bill. Such concessions would defeat any prospect of a scheme of citizenship which reflected people's real connections, and they would wreck any chance of removing the uncertainty and confusion which bedevils our current citizenship arrangements. We cannot grant British citizenship to the peoples of one dependent territory and expect the others to stand idly by.
I know that it has been argued that the original settlement of the Falkland Islands solely by people from the United Kingdom has put them in a special position. But whatever may have happened in the past there is no argument in equity or in logic that a British citizen of whatever generation in the Falkland Islands should be able to transmit his citizenship to his children born there but that a British citizen in any other dependency or in any other country of the world should not.
It is not as though the Falkland Islands is the only place overseas where people of United Kingdom descent have settled. There must be in the other dependencies alone many more people of United Kingdom descent living there than there are in the Falkland Islands. Taking in Commonwealth and foreign countries, the number of British citizens of United Kingdom origin living overseas is probably of the order of 2 or 3 million.
It may be argued that we have already breached the principle that British citizenship should be confined to those who have close ties with the United Kingdom as a consequence of the amendment made by your Lordships which enables people from Gibraltar to acquire citizenship upon application. But I do not for a moment accept that. First, the Government have made clear their firm opposition to that amendment. Secondly, that amendment only gave people from Gibraltar an entitlement to British citizenship on application—and I emphasise those words "on 154 application"—by virtue of Gibraltar's connections with the European Community. It does not make people from Gibraltar British citizens automatically when the Bill comes into force. It would simply enable them to acquire British citizenship if they so wished.
My noble friend Lord Bethell in winding up the argument for the Gibraltar amendment said—and I am quoting my noble friend again:I submit that the signature of the Treaty of Rome and the special mention of Gibraltar made in 1973 [in relation to the European Community] changes the issue completely".—[Official Report; 22/7/81; col. 276.]That was the argument put forward by the supporters of the Gibraltar amendment. This amendment on the other hand would confer British citizenship automatically on the peoples of the Falkland Islands. Unlike the peoples of any other dependent territory, they would thus become not only citizens of British dependent territories but also British citizens. This would indeed be a very significant breach of the principles of this Bill and would be quite unacceptable.
So I have to say that while we admire my noble friend's advocacy and ingenuity, I fear that we cannot accept her amendment. But in advising your Lordships to reject it I am by no means rejecting the claims of the peoples of the Falkland Islands upon us. As I have said, nothing in the Bill affects the relationship between the United Kingdom and the Falkland Islands. Nothing in the Bill affects in any way the Government's obligation to the Falkland Islands and its citizens. We shall preserve the right of abode held by very many islanders now, and we have given repeated assurances that in the event of any emergency the problems of anyone from the Islands who does not possess the right of abode in the United Kingdom and who was in trouble at the time would be most carefully and sympathetically considered.
We shall continue to look after the interests of the peoples of the Falkland Islands and to do all we can to meet their concerns. The implication of some comments, that citizenship of the British dependent territories is in some sense an unworthy or inferior citizenship is a disservice to the Falkland Islands and to all the dependent territories and their peoples. After all, what we are doing in this Bill in citizenship terms in relation to the United Kingdom and the dependent territories is to divide a composite citizenship of the United Kingdom and Colonies into two separate but parallel citizenships. It is no mark of inferiority that citizenship of the British dependent territories does not carry the right of abode in the United Kingdom, any more than that British citizens will not have the right of abode in the dependent territories. These are two parallel citizenships. We may all have an instinctive dislike and even fear of change in well established statuses, but we must not allow this to prevent us from following through much needed reforms. For these reasons, I hope that my noble friend does not press her amendment, but if she does I hope your Lordships will vote against it.
§ 6.17 p.m.
§ Lord Geddes
My Lords, I am most grateful to my noble friend Lord Trefgarne for doing me the honour of quoting what I said in the Committee stage of your 155 Lordships' House, but the point that perhaps he overlooked was that I made those comments before, and not after, the vote on, dare I call it?, the Gibraltar amendment. The point on which I would take issue with my noble friend Lord Trefgarne is that the breach has indeed been made as a result of that Gibraltar vote. We in this House must speak and vote surely as we think fit without taking into account what might subsequently occur either in this House or in another place. We have in Committee, for better or for worse, voted effectively in favour of giving Gibraltarians British citizenship. We are now debating giving similar status to the Falkland Islanders. Therefore as I have said, and as indeed other noble Lords have said this evening, we already have one and now possibly a second significant breach in the integrity of Part II and Schedule 6 to this Bill. Of course we are presently debating only one specific amendment affecting the Falkland Islands but the implications surely, as again has been said before, are far, far wider than just this amendment.
In an unreal world of total isolation, as my noble friend Lord Boyd-Carpenter has pointed out, I certainly would have every sympathy with this amendment—as indeed I had, given the same situation of vacuum, with Gibraltar. The numbers in both instances are relatively small. But the problem is that we have to deal with the real world in, dare I say it?, a polluted atmosphere—if indeed that is the corollary of a vacuum. My noble friends on the Government Front Bench have stressed continually that this is a nationality, not an immigration Bill but, as I and many others in your Lordships' House have said in our debates from Second Reading onwards, just about the one word not defined in this Bill as it stands is "nationality". This Bill defines in considerable detail three kinds of citizenship, each kind having different rights, particularly those of abode in the United Kingdom. Thus, I suggest to your Lordships that in major part it is, albeit at second remove, a Bill governing immigration.
The problem with this amendment—and I stress to my noble friend Lady Vickers that I have the greatest sympathy with its intent—is exactly the same as with the Gibraltar amendment, and, to put it bluntly, that it is an indirect one of numbers. I doubt, if I can go so far, whether any Member of your Lordships' House (or maybe only a few) would have a lasting objection to giving British citizenship to—I hope I get my figures roughly correct—17,000 Gibraltarians and 1,400 Falkland Islanders, although I am aware that the noble Baroness, Lady Elles, may have certain other views so far as Gibraltar is concerned. The problem, let us face it, is the prospective 2.6 million residents of Hong Kong who are presently citizens of the United Kingdom and Colonies.
In the debate in our Committee on 22nd July the noble Lord, Lord Soames, from the Government Front Bench said at col. 248, in the context of the possibility of granting Gibraltarians full citizenship—and I stressed the possibility at that stage—I really must stress this point firmly. The other dependencies and in particular Hong Kong, do say and will say that if all Gibraltarians are automatically to have British citizenship, enshrined in legislation, and the right of abode here merely on application, then they will want similar privileges. What we 156 grant to one we shall—to put it no higher—certainly be under great pressure to concede to others".The noble Lord went on at great length in that vein. However, my Lords—
§ Lord Geddes
My Lords, if I may continue, please, as we know, despite what the noble Lord, Lord Soames, and indeed several other members from the Government Front Bench, said, the Gibraltar amendment was accepted. However, in the context only of Hong Kong, my own view, following advice given to me—and I should like to stress this—is that the British Government's fears—and I strongly suspect particularly those of the Home Office—are ill-founded. Hong Kong belongers—and I use the word most deliberately—are the most pragmatic people I have ever come across, but I can do no better than paraphrase what I said on 28th July, which was that they are—and I stress this—not looking for, do not expect to have, and have no inclination for the right of abode in the United Kingdom. In other words, they are not looking for a citizenship along the lines of this amendment which carries with it the automatic right of entry or abode into the United Kingdom. What they are looking for is the strongest possible continuing link with the United Kingdom in political and national rather than in immigration terms.
I stress this point because it may influence your Lordships in considering the present amendment if you believe passing this amendment could—and I quote the noble Lord, Lord Boyd-Carpenter, who in turn was quoting others—"open the flood gates", which would particularly refer to Hong Kong. I stress that, from the advice I have received and from my own investigations, that is not so; they are not looking for that right of entry or of abode in the United Kingdom. They are looking for a very close, overtly expressed connection with the United Kingdom.
As I have said, I make no apology for having dwelt on Hong Kong on what is in fact a Falkland Islands amendment, because the problem overall is one of numbers. So far as this amendment is concerned, my inclination is now to favour it, in that the breach has already been made. In that context I should also in passing like to make reference to H M S "Endurance" having been included in the recent defence cuts—surely an extraordinarily short-sighted view. Whether or not this amendment is carried we shall know shortly; what we already know is that the Gibraltar amendment has been approved by your Lordships' Committee and therefore the integrity of the British dependent territories has been breached. That alone makes the case at the very least in terms of demonstrable status for the strongest possible ties between the remaining British dependent territories and the United Kingdom. If this amendment is carried, the breach will become a yawning gap and in my view will make the argument of any dependent territories—and particularly Hong Kong's case for overt demonstration of "super-glue" political and national links with the United Kingdom—irrefutable.
§ Lord Elwyn-Jones
My Lords, the provisions of this Bill have clearly caused a sense of anxiety and insecurity 157 among a very large proportion of our Colonies and Commonwealth and one of the difficulties is in the provision of generic citizenship of the dependent territories. It is meaningless. When we come to Amendment No. 73 I hope we shall be able to elaborate that. I quite sympathise with the views which have just been expressed by the noble Lord, Lord Geddes, in which clearly we shall have to look especially at the position of Hong Kong when we come to consider it and to consider the other dependent territories separately. What we are proposing is that there should indeed be a scheme for the respective citizenships of each of these dependent territories, but in the meantime we are dealing with the special case of the Falkland Islands.
Whatever else may be said about the other dependent territories, in none of them are fifteen-eighteenths of the population already British citizens. It does seem to make a difference. In none of them is there the potentiality of harrassment by a powerful neighbour with unjustifiable claims upon their land (as has been said) which subjects them to harrassment. So far as I know there is no parallel to this situation, except possibly certain aspects of the actions of Spain in relation to Gibraltar. However, Hong Kong is a different scene altogether. There is therefore the question whether the position is so special here that there should be a break into the principle that has been applied in the other dependent territories, save for Gibraltar.
One of the matters that I think has caused some concern in the Falkland Islands—and the language was repeated by the noble Lord, Lord Trefgarne, who, incidentally, I congratulate on his appearance on the Government Front Bench as Minister of State for the Foreign Office. I hope I have got it right—have I promoted the noble Lord unduly? If so, no doubt I have only anticipated events, but, as I was saying when I interrupted myself in the best judicial fashion, he said that, in the event of the inhabitants of the Falkland Islands finding themselves in an emergency —this was the language, incidentally, of the honourable gentleman, Mr. Raison, in another place and the language of the noble Lord was similar—the problem of any Islander who did not possess the right of abode in the United Kingdom and who was in trouble at that time would be most carefully and sympathetically considered.
Really, that is no sufficient reassurance for these people. This is a difficult issue, because I see the force of the fact that some of the citizens of other dependent territories may regard themselves as being equally worthy of favour. I appreciate that and that is why I think that when we come to Amendment No. 73, we should look again as to their position. I feel that there is a very special set of circumstances here and, on the whole, without perhaps being willing to go to the stake on this matter but I think being just about willing to go to the Division Lobby with the noble Baroness, I propose to take that course.
§ Viscount Massereene and Ferrard
My Lords, if I may just make a point, the Government have been saying all along that the Falkland Islands and all these dependencies must be treated exactly alike, but 158 surely there is a great difference between the Falkland Islands and Hong Kong, because I was always given to understand that Hong Kong was leased. Does that not have a bearing, because I understand that the lease only has another twelve years to run?
§ A noble Lord: It is not all leased.
§ Viscount Massereene and Ferrard
I thought it was, my Lords. But at any rate, the part that is leased contains the main population and I really do not see how one can compare the Falkland Islands with Hong Kong. I personally support this amendment. I quite agree that from the Civil Service point of view—and we have heard one or two Civil Service speeches, if I may say so—it is far tidier to treat all dependencies alike in the Bill. But we are dealing with human beings. One is often inclined to forget that. It may be racist to say this in modern terms but in this Bill little regard appears to have been paid to British blood, British descent. I know that under the views we hold today that may be held to be racist. If so, I am sorry but it is not racist to me; it is common sense. Four hundred people: this is making a mountain out of a molehill, even if their descendants will be British and even if they are all over the world. It can never amount to any significant number. The Government are making a mountain out of a molehill. So for Heaven's sake, really! I shall support the amendment, and I hope a lot of other noble Lords will support it.
My Lords, I have listened with great interest to this debate. I have been referred to as a temptress, and therefore I should like to tempt the House to vote on my amendment.
§ 6.31 p.m.
§ On Question, Whether the said amendment (No. 65) shall be agreed to?
§ There Lordships divided: Contents, 90; Not-Contents, 90.159
|Alport, L.||Evans of Claughton, L.|
|Amherst, E.||Ewart-Biggs, B.|
|Ardwick, L.||Faithfull, B.|
|Avebury, L.||Geddes, L.[Teller.]|
|Aylestone, L.||Gifford, L.|
|Beswick, L.||Glenamara, L.|
|Bishopston, L.||Hale, L.|
|Blyton, L.||Hanworth, V.|
|Boston of Faversham, L.||Harvington, L.|
|Brockway, L.||Hooson, L.|
|Bruce of Donington, L.||Hunt, L.|
|Buxton of Alsa, L.||Irving of Dartford, L.|
|Chelmsford, Bp.||Jacques, L.|
|Chitnis, L.||Jeger, B.|
|Collison, L.||Jenkins of Putney, L.|
|Cork and Orrery, E.||John-Mackie, L.|
|Cromartie, E.||Kaldor, L.|
|David, B.||Kilmarnock, L.|
|Davies of Leek, L.||Kimberley, E.|
|Davies of Penrhys, L.||Lawrence, L.|
|de Clifford, L.||Llewelyn-Davies of Hastoe, B.|
|Dowding, L.||Lloyd of Kilgerran, L.|
|Ellenborough, L.||Lockwood, B.|
|Elwyn-Jones, L.||London, Bp.|
|Lovell-Davis, L.||Sefton of Garston, L.|
|McCarthy, L.||Sempill, Ly.|
|Macleod of Borve, B.||Shannon, E.|
|Massereene and Ferrard,V.||Shinwell, L.|
|Milner of Leeds, L.||Simon,V.|
|Molloy, L.||Spens, L.|
|Monson, L.||Stamp, L.|
|Morris, L.||Stewart of Alvechurch, B.|
|Moyne, L.||Stewart of Fulham, L.|
|Noel-Baker, L.||Swinfen, L.|
|Ogmore, L.||Tanlaw, L.|
|Onslow, E.||Taylor of Mansfield, L.|
|Oram, L.||Tweeddale, M.|
|Peart, L.||Underhill, L.|
|Ponsonby of Shulbrede, L.||Vickers, B.[Teller.]|
|Rochester, Bp.||Wallace of Coslany, L.|
|Rochester, L.||Wells-Pestell, L.|
|Ross of Marnock, L.||White, B.|
|Scanlon, L.||Wigoder, L.|
|Seear, B.||Wilson of Radcliffe, L.|
|Avon, E.||McAlpine of Moffat, L.|
|Belstead, L.||McFadzean, L.|
|Bethell, L.||Mackay of Clashfern, L.|
|Boardman, L.||Mancroft, L.|
|Boyd-Carpenter, L.||Mansfield, E.|
|Campbell of Alloway, L.||Margadale, L.|
|Campbell of Croy, L.||Marley, L.|
|Chelwood, L.||Monk Bretton, L.|
|Cockfield, L.||Montgomery of Alamein,V.|
|Coleraine, L.||Northchurch, B.|
|Colville of Culross,V.||Nugent of Guildford, L.|
|Colwyn, L.||O'Hagan, L.|
|Cottesloe, L.||Orkney, E.|
|Cowley, E.||Orr-Ewing, L.|
|Crathorne, L.||Pender, L.|
|Cullen of Ashbourne, L.||Pitt of Hampstead, L.|
|Daventry,V.||Platt of Writtle, B.|
|Davidson,V.||Plummer of Saint Marylebone, L.|
|De La Warr, E.|
|Denham, L.[Teller.]||Portland, D.|
|Drumalbyn, L.||Redesdale, L.|
|Dundee, E.||Redmayne, L.|
|Elles, B.||Renton, L.|
|Elliot of Harwood, B.||Richardson, L.|
|Fortescue, E.||St. Germans, E.|
|Garner, L.||Sandys, L. [Teller.]|
|Gridley, L.||Sharples, B.|
|Grimston of Westbury, L.||Shepherd, L.|
|Hailsham of Saint Marylebone, L.||Skelmersdale, L.|
|Hampden,V.||Strathcona and Mount Royal, L.|
|Hives, L.||Strathspey, L.|
|Hornsby-Smith, B.||Thorneycroft, L.|
|Kilmany, L.||Tranmire, L.|
|Kinnoull, E.||Trefgarne, L.|
|Kitchener, E.||Trumpington, B.|
|Lane-Fox, B.||Vaizey, L.|
|Lindsey of Abingdon, E.||Vaux of Harrowden, L.|
|Loudoun, C.||Ward of Witley, V.|
|Lucas of Chilworth, L.||Young, B.|
§ The Deputy Speaker (Lord Alport)
My Lords, there have voted, Contents, 90; Not-Contents, 90. There being an equality of votes, in accordance with Standing Order No. 53, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such amendment, I declare the amendment disagreed to.
§ Resolved in the negative, and amendment disagreed to accordingly.160
§ 6.40 p.m.
§ Clause 11 [Citizens of U.K. and Colonies who are to become British citizens at commencement]:
Lord Renton moved Amendment No. 66:
Transpose Clause 11 to before Clause 1.
§ The noble Lord said: My Lords, I beg to move Amendment No. 66, the effect of which would be to make Clause 11 the first clause of the Bill. I should like to say that this presents a much more clear cut issue than the one on which we have just equally divided. There are three reasons I suggest why Clause 11 should become the first clause of the Bill. The first reason is that it deals with the acquisition of British citizenship at commencement; that is, as soon as the Home Secretary appoints a day under Clause 53(2) for the Act to come into force. When that happens millions of people who are citizens of the United Kingdom and Colonies and have the right of abode in the United Kingdom will automatically become British citizens under the Bill. It will, indeed, apply to most of the people now living here and to some who are now living abroad but who have the right of abode here—they may be only temporarily abroad. I think that the most important point of all to remember is that this clause will make more people into British citizens than all the rest of the clauses of the Bill put together.
§ My second reason is as follows. What is to happen at commencement, which at present is to be under Clause 11, will of course happen much sooner than what happens after commencement under Clauses 1 to 10 inclusive. What happens first should surely be mentioned first, especially as it affects, as I have said, more people so far as British citizenship is concerned than the rest of the Bill.
§ My third reason is that it is clear from our discussions during the Committee stage that the Bill has been much misunderstood and has caused much anxiety even among some people in this country who will benefit under Clause 11 as soon as the Bill is brought into force but who did not realise it perhaps because that clause was lost among complicated other clauses in the Bill. As regards the ethnic minorities, as the right reverend Prelates pointed out at the beginning of our Committee stage, however the Bill might be in its effect, people were afraid of the way in which it might affect them. I suggest that they would not be so afraid if that clause which establishes their position, their right to become British citizens at commencement, were put prominently at the front of the Bill as its first clause.
§ The Bill will become an Act of Parliament and people will then get hold of it to an even greater extent than they have got hold of the Bill. They will get hold of it to find out how it affects them. Most of them, the vast majority of them, will be affected and favourably affected by Clause 11. So let us put their fears at rest emphatically at the first opportunity by making this the first clause of the Bill instead of tucking it away among other clauses which quite frankly are each of less importance by far, and collectively so.
§ I understand that my noble and learned friend the Lord Advocate is to reply to this amendment and lest he should suggest that Clause 11 is for some reason less important and less permanent than other provisions of the Bill, I would remind your Lordships 161 that its terms will not only benefit at least 50 million people straight away and for the rest of their lives, but they will also be relied upon by all their children and grandchildren to establish their rights as British citizens. Therefore, there is nothing transitional or temporary about that. This is something of lasting effect. Indeed, I would prefer to describe it as being of permanent effect. Naturally when one is proposing a change of this kind one does not want to cause a lot of trouble. Therefore, let me set your Lordships' minds at rest.
§ The consequentials would be minimal and would consist of re-numbering what are at present the first 10 clauses as well as re-numbering Clause 11 to make it Clause 1. I have been looking at the number of internal references to clauses that would have to be changed and those changes could be done in a very short time because there are only about 10 or a dozen references to the first nine clauses. Therefore, that would not cause a lot of trouble. It is because I feel strongly that this would greatly improve the Bill and its presentation to the people that I beg to move.
§ Lord Elystan-Morgan
My Lords, the noble Lord, Lord Renton, as usual has deployed his arguments with great skill and great charm. However, one thing we can be sure of is that his amendment, if it were carried, in no way could improve the Bill. The same anguish that will be created in the hearts of hundreds of thousands of people would remain, the same doubts, the same fears and the same suspicions. Nor, indeed, would the Bill be any less complicated. I am sure that this Bill if it does become law will be regarded as one of the most complicated pieces of legislation that Parliament has managed to spawn in the last decade. It may well be that when the Lord Advocate 40 years on, with the weight of years heavy upon him, looks back upon this Bill he will remind himself of what Lord Melbourne is supposed to have said of the great issue over Schleswig-Holstein in the middle of the last century. He is reputed to have said that only three people were able to understand that complicated issue, so complex was it. "One", he said "is dead; the other is mad; the third is myself and I have forgotten all about it".
§ Lord Elystan-Morgan
On reflection, my Lords, I think that very probably it was Lord Palmerston and if anything that even adds to the tale and to the validity of the point that I was seeking to make. Chronologically speaking it would, of course, have been proper to deal with the provisions of Clause 11 previous to the provisions of Clause 1. But for once I am totally with Her Majesty's Government in this matter because Clause 1 deals with a fundamental change in our law by changing the historic foundation of jus soli that had sustained this branch of our law for over 700 years. Since they were bringing about so epoch-making a change it was surely right and proper that it should be dealt with fairly and squarely in Clause 1 and not tucked away in the inner recesses of the Bill. For that reason and only for that reason I find myself for once ibidem with the Government sitting opposite.
§ Lord Mackay of Clashfern
My Lords, your Lordships' House always listens with great interest and care to what my noble friend Lord Renton has to say in connection with the drafting of statutes. We know that he has taken a deep interest in the clarity and logic of our legislation over a long period of time, and many of your Lordships know that I owe my opportunities of addressing your Lordships to one of the recommendations of the committee in that connection over which he presided. Notwithstanding the debt of gratitude which I owe him for that, I regret to say that I cannot advise your Lordships to support this amendment.
The clauses of this Bill which will have effect as children are born are principally Clauses 1 to 9 of Part I, and corresponding clauses in the later part. Clauses 1 to 9 represent a new citizenship scheme which, subject to future legislative changes, will be permanent and have effect from day to day as children are born. They come first, as did their equivalents in the British Nationality Act 1948, precisely because they provide the permanent scheme. On the other hand, Clause 11 sets out the arrangements for carrying into the new nationality law those who are under our present nationality law. It is true, of course, that once that has happened, the way in which it has happened has permanent effect for such people; but it is in the nature of an arrangement carrying over from existing legislation to the new legislation and that, of course, is the essence of a transitional provision. A transitional provision may be permanent in effect to the people whom it affects, but it is transitional because it carries over from the existing arrangements to the new arrangements.
If proof of that is required in practice I think that it can be found in the fact that the equivalent section in the 1948 Act is actually under the heading of "Transitional". Its work is done once the moment of commencement has come. My noble friend Lord Renton has said that it will continue to have effect. That is true in the sense that its work, once done, will have permanent effect. But if it were repealed immediately after commencement, no consequence adverse to its effect would follow. Accordingly, I would suggest that there is a very good reason for regarding Clause 11 as in the nature of a transitional provision. It is standard practice for the main scheme to come first and the transitional provisions to come later.
I think it would be fair to say that if this argument were to prevail, a similar argument would apply to Clause 23 in Part II. I think it is clear that no substantial consequence would arise from such a change. It is fairly late in the Bill's history to make such a change. People tend to refer to clauses by particular numbers; for example, I am sure that all of us have developed an affection for Clause 3 of the Bill, which would suffer by the change of numbering. There is then the convenience of existing references and I would suggest that if the matter was finely balanced, that is a consideration against changing the numbers at this stage.
I have to agree with the noble Lord, Lord ElystanMorgan, that this change proposed by my noble friend would make no difference whatever to the Bill. I find it hard to see how it would make the approach of the reader easier. In fact, I should have thought that it is easier to grasp the permanent or continuing scheme 163 first and then see how existing citizenship fits into it. Of course, I do not accept the description of the Bill which has been given as to its great complexity. I think that we have very considerably improved it from that point of view, and I should have thought that it compares very favourably with legislation in this difficult area. The subject is of necessity a difficult one, but I think that I could without too much difficulty readily point to more complicated legislation in the last decade.
I have to thank the noble Lord, Lord ElystanMorgan, for his good wishes for me 40 years on. I hope that I shall have better employment than Lord Palmerston at that stage, more to occupy me, and many more companions who will remember this Bill with gratitude.
§ Lord Renton
My Lords, of course my noble and learned friend the Lord Advocate was quite right in saying that if this amendment were carried, one would need to have a similar amendment for Clause 23 to bring that forward. Indeed, last night I tabled an amendment, which today appears as a manuscript amendment, in order to achieve that result.
I find it strange and an entirely new doctrine that, after 35 years of service in Parliament, a provision that could last well over 100 years is to be described by a Law Officer of the Crown as a "transitional" provision. That is something entirely new. However, my noble and learned friend was good enough to say that once it has been acted upon it will have permanent effect and, indeed, I would expect it to be left on the statute book even though it has effect straightaway because so many people will need to rely upon it.
I must be realistic. I do not conceal my deep disappointment at the lack of support for my attempt to improve the presentation of this particularly difficult piece of legislation so that people may see it more clearly, especially the millions who will be more affected by it than all the others. But I must be realistic and, as it is approaching the time when we break for dinner, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13 [Resumption]:
§ Lord Mackay of Clashfern moved Amendment No. 67:
Page 13, line 4, leave out from ("if") to ("his") in line 5 and insert—
("(a) he is of full capacity; and
§ The noble and learned Lord said: My Lords, this amendment affects the Secretary of State's satisfaction. I beg to move.
§ On Question, amendment agreed to.
§ Lord Denham
My Lords, I think that this is probably a convenient moment at which to adjourn for dinner. If that is the feeling in other parts of the House, I beg to move that further consideration on Report be adjourned until eight o'clock.
§ Moved accordingly, and, on Question, Motion agreed to.164
§ [The Sitting was suspended from 6.59 p.m. until 8 o'clock.]
§ Clause 14 [Meaning of British citizen "by descent"]:
§ Lord Mackay of Clashfern moved Amendment No. 68:
Page 14, line 9, at end insert—
("(bb) he is a British citizen by virtue of registration under section 3(1) and either—
§ The noble and learned Lord said: My Lords, as I explained in connection with Amendment No. 16, the Government have altered the arrangements for citizenship by descent so that there are very simple criteria which apply to decide whether or not the second generation born overseas should be British citizens by descent. For remoter generations born overseas our intention is to rely upon the discretion afforded to the Secretary of State by Clause 3(1) of the Bill.
§ Before registering children born overseas in the second and subsequent generations regard would naturally be had to the strength of the child's likely connections with this country. It is very important in this connection that in exercising this discretion the Secretary of State will take into account the special problems facing British business families on long-term service overseas. By British business families I mean people in British companies or firms, or in employment with strong British connections; so the special problems of such British business families will be an important matter for consideration in this discretion.
§ It is important that this discretion should be fairly widely available, but as registration at discretion stands under the Bill at present this would give citizenship otherwise than by descent. This is because the primary use of the discretion had been envisaged as applying to children whose future lay in this country. That has, however, now changed and this amendment ensures that where children are registered because of their descent from parents who are British citizens, they are registered as citizens by descent themselves. In the case of children born after commencement, their parents will of course themselves be British citizens by descent and it would be illogical in this context to give the children a right to transmit which their parents do not have. It is of course also possible that some children will be registered who have been born before commencement to people who are citizens otherwise than by descent. There would be the children of United Kingdom born mothers who do not now inherit their mother's citizenship at birth, but whom it has been the practice to register since February 1979 unless there is a well founded objection from the father. This is the concession referred to earlier today.
§ My Lords, these children also should be citizens by descent, since had they had a father born here they would have been citizens by descent at birth and it seems illogical that the result of discretion being exercised in their favour should result in a more favourable status as far as passing on citizenship to the next generation is concerned. The amendment 165 is therefore necessary to ensure a logical citizenship scheme, as well as to make it easier to take a generous attitude to registration of children born in the second and subsequent generations overseas. I beg to move the amendment.
§ On Question, amendment agreed to.
§ Lord Belstead moved Amendment No. 69:
Page 14, line 25, at end insert—
("( ) he is a British citizen by virtue of registration under section 10; or").
§ The noble Lord said: My Lords, this amendment would mean that those registered under Clause 10 of the Bill—which is the one conferring an entitlement to British citizenship on those from Gibraltar—would be British citizens by descent. They would therefore be unable—unless they were in Crown service or other service relevant for the purposes of Clause 2 of the Bill—to transmit their British citizenship automatically to a further generation born overseas. This seems to be only right. After all, those who are registered under Clause 10, will in most, if not all, cases be born outside the United Kingdom. They will also normally be resident abroad—since the entitlement does not depend on a period of residence in this country—and need have no intention of coming to this country at any time during their lives. It seems only logical that they should be comparable to those other British citizens who are born abroad and become British citizens by descent.
§ I think I just ought to add that I am moving this amendment because this is a matter which affects the general policy of the rest of the Bill, and I am not moving the amendment for any other reason. The amendment, for instance, does not, as I sought to make clear on Amendment No. 64, indicate any approval in this House on behalf of the Government for the Gibraltar amendment and does not in any way indicate what the Government's intentions may be in another place. I beg to move.
§ Lord Bethell
My Lords, in spite of what my noble friend said at the close of his remarks, I should like very much to welcome my noble friend's constructive approach to Clause 10 as evidenced by this Amendment No. 69. I welcome indeed the amendment wholeheartedly, and by and large the spirit in which my noble friend has moved it. I hasten to assure my noble friend that the Government of Gibraltar, whom I have consulted over this matter, have no objection whatever to the amendment proposed by my noble friend. Indeed, I think they would agree with much of what he has said, that it is appropriate that under this clause, which I trust will remain in the Bill at the end of the day, Gibraltarians should have the power to apply for registration as British citizens by descent.
I do not believe that there will be any substantial argument about this point among Gibraltarians, and I think this is the most appropriate course, that they should be entitled to apply for registration by descent. I would only add to what my noble friend has said that of course successive generations of Gibraltarians would, if they are born in Gibraltar, be able to apply for British citizenship by descent irrespective of the residence of their parents at that particular time. Under this provision, as I understand it, if any person 166 of Gibraltarian origin is born in Gibraltar that person will be able to apply for a registration. I welcome the amendment and I hope that the House will agree to it.
§ On Question, amendment agreed to.
§ Lord Elwyn-Jones had given notice of his intention to move Amendment No. 70:
Page 14, line 32, at end insert—
(g) at or before that relevant time, he had not previously resided in the United Kingdom for a continuous period of three years, during which period he was not absent from the United Kingdom for more than 270 days in total.").
§ The noble and learned Lord said: My Lords, we have given thought to this in the light of Amendment No. 72 which is to be moved by the noble Baroness, Lady Elles. We have come to the conclusion that Amendment No. 72 is more appropriately drafted for the purposes we have in mind in Amendment No. 70. Therefore, in those circumstances I shall not move Amendment No. 70. Not for the first time have I bowed to the noble Baroness, Lady Elles, on one or two of these matters.
§ [Amendment No. 70 not moved.]
§ 8.10 p.m.
Lord Mackay of Clashfern moved Amendment No. 71:
Page 14, line 34, after ("descent"") insert ("by virtue of subsection (1)(b) or (c)").
§ The noble and learned Lord said: My Lords, this is a technical drafting amendment which is designed to clarify the scope of the proviso to Clause 14(1) in Clause 14(2) of the Bill. As presently drafted, this proviso refers in general terms to all children born abroad before commencement to fathers in Crown service who, but for this proviso, would be British citizens "by descent" under subsection (1) of the clause. It does not specify how British citizenship "by descent" will have been acquired by those concerned. This could be misleading since the proviso is, and always has been, intended to apply not to all British citizens "by descent" but only to certain categories—those who would otherwise become British citizens "by descent" under subparagraphs (b) and (c) of subsection (1), which are the ones dealing specifically with the position of those born abroad before commencement.
§ This restriction in the scope of Clause 14(2) is already indicated by the cross-references to subsection (2) in subsection (1) of the clause, which are to be found only in subparagraphs (b) and (c). But there are no comparable cross-references to the relevant paragraphs of subsection (1) in subsection (2). This seems undesirable since it could leave the interpretation of subsection (2) open to some doubt. It is this possibility of doubt and misunderstanding which this amendment is designed to remove. I beg to move.
§ On Question, amendment agreed to.
§ Baroness Elles moved Amendment No. 72:
Page 14, line 44, at end insert—
("( ) A British citizen by descent by virtue of section 14(1)(a) and (b) shall be entitled, on an application for his registration as a British citizen, to be registered as such a citizen if the Secretary of State is satisfied that—
§ The noble Baroness said: My Lords, this is in line with an amendment tabled in Committee, which was debated then and which has been referred to throughout the discussions on the Bill as the "upgrading clause". Your Lordships will notice that this amendment is not entirely in line with the one which was previously debated, in that the period of time for which residence is required is three years as opposed to two years. The House will also notice that it was tabled before Government amendments were tabled and includes the words "if the Secretary of State is satisfied", which we on these Benches would call the "Colville amendments", which have been active throughout this stage of the Bill.
§ Many of your Lordships will have been aware of the great concern of British citizens working abroad about the effects of the Bill on their children and grandchildren—that is, on the transmission of citizenship throughout the generations—and we have conceded during this stage of the Bill that the Government have been extremely conciliatory and have introduced many amendments to improve their position. The first objection was probably that what affected these people most was the retroactiveness of the Bill in that people would wake up on 1st January 1982 and find themselves British citizens by descent. Thanks to Amendment No. 16, the effects of that particular definition of citizenship will not affect their children but only their grandchildren.
§ As noble Lords will be aware, the amendment deals particularly with those cases, to which I referred frequently in Committee, where a British citizen working abroad is faced with the two alternatives under Clause 3; and Amendment No. 16 does not remove the anomaly created by that clause. Under Clause 3(2), a child born to British parents abroad can now be registered as of right within 12 months of the birth and would become a British citizen by descent. But under the same clause, by subsection (6), if a parent decides that his firm or events in his life will bring him back to the United Kingdom, and he resides in this country for three years with the child in question, that child can then be registered as a British citizen, a full British citizen with all the rights of those born in this country.
§ Thus, the British citizen working abroad, despite the valid and helpful amendments which have been introduced into the Bill already at this stage, is still faced with this dilemma: is he to register his child within the year so that it becomes a British citizen by descent, or is he to take a risk, play "British roulette" and imagine that he will be able to come back and register his child as a full British citizen in the space of four or five years or during the stages of the child remaining a minor? The point of the amendment is that where a child is born abroad, there would be a possibility for that child within certain conditions to come back and be registered as a full British citizen.
§ Your Lordships may think that if a child is a British citizen by descent it will not make very much difference to that child; as my noble and learned friend the Lord Advocate said in Committee, if the child remains in 168 this country and marries and eventually has a child born in this country, that child will of course be a full British citizen. But we know, particularly those of us who are concerned with British citizens abroad, that life is not like that any more. There is a considerable going and coming between countries. One never knows where one will be sent and one may return for a few years to the head office of a firm and then be sent off again, and if one has a child then, that child will be a British citizen by descent and not a full British citizen. Thus, the amendment will in effect equalise the position for those born abroad to come back to this country, and those working abroad feel that they should be entitled to full British citizenship.
§ The effects of the Bill draw out the differences, in that, under Clause 4, a British citizen of a dependent territory and a British citizen of an overseas territory—a naturalised person and a registered person under Clause 7—neither of whom has had any connection whatever with this country and perhaps no ties at all, would automatically become, under these various aspects of the Bill, full British citizens, whereas somebody whose family has perhaps had connections for centuries with this country and who intends eventually to come back would not have the benefit of this citizenship.
§ It is on those grounds, therefore, that I draw attention to some of the complexities under the Bill, and I should be grateful if the Minister would give a comforting reply to those who are in the unfortunate predicament of having to decide whether to register under Clause 3(2) or to risk waiting, having a stateless child in the meantime, and returning to this country, hopefully able to register under Clause 3(6).
§ Lord Campbell of Alloway
My Lords, the House may feel that there is a certain vice in the drafting of the amendment in terms of there being considerable confusion between entitlement and discretion. In view of Amendment No. 143, which affects Clause 44, your Lordships may wonder whether it is appropriate to import the question of discretion being satisfied into what would appear to be a question of entitlement. The amendment is confused in its drafting and, in view of subsequent amendments, could give rise to considerable administrative difficulties.
The situation is simply whether the Secretary of State should have it at his discretion to convert the election made under Clause 3(2) into a Clause 3(6) situation, or whether it should be a question of entitlement. I shall not detain the House further at this hour. I have spoken privately to my noble friend Lady Elles about this, and if the amendment were to be pressed I seriously suggest that it could lead to unwelcome consequences.
§ 8.20 p.m.
§ Lord Elystan-Morgan
My Lords, as the House already appreciates, we on these Benches support the amendment moved by the noble Baroness, Lady Elles. It seems to us that it provides a means by which people born outside the United Kingdom and registered as citizens by descent may upgrade their citizenship to one with the same rights as if they were British citizens otherwise than by descent. British citizens by descent are of course dealt with fully in Clause 14. Children 169 born outside the United Kingdom after commencement may be registered as British citizens by descent under a number of other provisions: under Clause 2(1)(a)—that is the person whose parent is a citizen otherwise than by descent; under Clause 3(2), as amended yesterday by Amendment No. 16—that again is a case of having a parent who is a citizen by descent; and under Clause 8—that is the continuation of consular registration for five years after the commencement of the Bill as an Act.
Amendment No. 68 having been passed, it seems to me that it will now have the following effect upon Clause 3(1) of the Bill. If the parent is British, the child will be British by descent. However, if the parent is not British, the child will be British otherwise than by descent. It seems to me that the anomalous result of that—I see the noble and learned Lord the Lord Advocate shaking his head in disbelief but I hope that that is the case, although I should be very glad to have ministerial assurance and explanation on the point—is that if the parent is not British, the child would be British otherwise than by descent and thereby, though of non-British parents, would have a status superior to that of a child of British parents. The noble Lord, Lord Belstead, said yesterday in this Chamber that parents registering a child under Clause 3(2) by descent would be told of the alternative provisions of Clause 3(6). However, it seems that that avenue is open only if the child can obtain another nationality at birth, since otherwise he would be stateless until the end of the period of three years of residence in the United Kingdom.
§ Lord Geddes
My Lords, very briefly I should like most warmly to support certainly the intent behind the amendment of my noble friend Lady Elles. I raised the point briefly on the first day of the Report stage and in reply the noble and learned Lord the Lord Advocate said that so far as upgrading is concerned no upgrading is proposed by the Government. I hope that the noble Lord who is to reply this evening can give us greater encouragement than that.
§ Lord Belstead
My Lords, first, it might be helpful if in replying to the amendment I said that my understanding is that my noble friend Lord Campbell of Alloway is right. By, I am sure, a mere slip of the pen my noble friend Lady Elles has included in her amendment the words:if the Secretary of State is satisfied",when I suspect that she really is intending Amendment No. 72 to be an entitlement. I think that my noble friend had to be out of the country for a short time perhaps even when her amendment was tabled and possibly she did not appreciate the head of steam that was beginning to build up against these words, which are not again to be seen upon the face of the British Nationality Bill.
Having said that, I wonder whether, secondly, it might help if I try to address myself to the people whom I think would benefit from the amendment of my noble friend Lady Elles. It seems to me, first, that my noble friend might well have in mind a British citizen by descent. We are talking about a British citizen by descent, are we not? because if we are talking about a British citizen otherwise than by 170 descent, then we are not worried about making special provision, because the children will be citizens anyway, and they do not fall within the scope. So first I am thinking of a British citizen by descent who comes to live here, stays here in the United Kingdom and has children, perhaps several children. As I see it, neither the parents nor the children are under a disadvantage, certainly as regards the status of the children born here because they become British citizens otherwise than by descent. In more homely language, they are British citizens by birth, if I may put it that way—I am using layman's language for my own benefit—and then they can go on transmitting their citizenship. So where someone comes back to this country, stays here, and has children, it seems to me that that is the situation.
My noble friend will say that there is just one point about them. Those parents are still British citizens by descent and it does not sound so good, though in fact their civic rights and everything else are exactly the same as those of all other British citizens. I would apprehend—I must be perfectly honest about this—that under the effects of the amendment, although the children born here would all become British citizens otherwise than by descent, those parents, if they knew that there was a way of upgrading themselves, would immediately also go off and try to make use of the upgrading process. At a time when Government money and Government time are enormously hard pressed, I make no apologies for saying that it would be putting an extra administrative procedure into the machinery of government, which perhaps is something that we and indeed the applicants could do without.
Then it occurs to me that my noble friend might have in mind those people who come back here for, say, a minimum of three years and then, quite naturally, in the way that my noble friend has explained so many times in the proceedings on the Bill, again go abroad, almost certainly to work. They are people who, wishing to go overseas again, would wish automatically to transmit their citizenship to any children who would subsequently be born abroad to them. But I consider that the Bill provides ample opportunity for those people to secure British citizenship for their children with the minimum of difficulty. Many, if not most of, such people will be in the first generation born abroad, and, under the amendment agreed by your Lordships to Clause 3 (Amendment No. 16), children born overseas to those people will be entitled to British citizenship on application if the British citizen parent has completed the period of residence contemplated here.
Alternatively, should such people return again to the United Kingdom and live here for another period of three years with their spouses and children, the children could be entitled to registration under Clause 3(6)—
§ Lord Belstead
My Lords, if I may I will go on for just a moment, and then I shall give way to my noble friend. It seems to me that there is then a third category of people. The first category that occurs to me is that of the people who come back and go on living here. The second category consists of the people who come back for a time, but go abroad and have 171 their families abroad. The third category relates to people who come to this country for a while—say, as students—and then go abroad for the rest of their lives and have their children abroad. I should have thought that they are people whom one could fairly say have links with this country that are rather farther away than those of the first two categories. They are, say, the third or fourth generation of their families abroad, and, as I say, they have chosen to come here for a while but have then gone away again, and for good.
I suggest to the House that in that category it would be wrong if someone who has been brought up abroad, whose family has lived abroad for several generations, and whose links with the United Kingdom are inevitably distant, is able, having lived here for a minimum of three years, to alter his status so that he can transmit his citizenship as of right to his children who are born overseas. The point that I am anxious to get across in all of this is that those citizens by descent who are in the first category, who come back, make their permanent home here and have their children here, will, I suggest, be able to transmit British citizenship without the need for a provision of the kind in my noble friend's amendment.
Those British citizens by descent who are in my second category—those who go abroad again after a short stay here but have continuing links with this country—will be able to secure British citizenship for their children, I think really without any difficulty because of the amendments we have now written into the Bill and about which your Lordships have been extremely generous; that is, the amendments proposed by my noble and learned friend the Lord Advocate. Then there is the third category of those who are here for a short time, probably as students, and who go abroad again and have their children abroad. Although, of course, I say "Good luck" to them from a nationality point of view, I do not think that a stay of three years is a sufficient link to justify enabling such people to transmit their citizenship and the right of abode for a further generation, by right in those circumstances.
My Lords, if I may go on for a moment, that is not quite the end of the story by any means. There is of course entwined in all this the general discretion of the Secretary of State to register minor children under Clause 3(1), and I think it is very important that I should repeat at least the sense of words which were spoken a little earlier this evening by my noble and learned friend the Lord Advocate when he said that in exercising the discretion to register minor children the Secretary of State will take into account the special problems of British business families on long-term service overseas. By "British business families" my noble and learned friend meant people in British companies or firms or in employment with strong British connections, because clearly there will be claims by people after the second generation born overseas. The Government are quite prepared, not only to admit them but to look at them in a perfectly realistic way, because it is so important for our country that there should be these people trading and representing our country abroad.
But, my noble friend will say, there is still the problem which I have not replied to, which is: What 172 happens when people have their children abroad? They can in fact register them under Clause 3(2), or indeed they may go for the discretion under Clause 3(1); but they are unsure, because they will be citizens by descent if they have them registered in that way, whereas there is Clause 3(6), which, if they came home, would make the children citizens otherwise than by descent.
My Lords, I am most anxious to say that we really have genuinely tried to think about this in Government, and we have not been able to come up, I know, with an answer which would wholly satisfy your Lordships. But I think two things are important. The first is that people who register under the provisions of Clause 3(1) or (2) would be informed that the alternative of Clause 3 exists; that for a child whose future is likely to lie in the United Kingdom, the avenue is there for registration under Clause 3(6) after coming to this country with parents to live. If your Lordships say to me, "That is all very well, but the parents have only a year in which to make their minds up and they are not sure", may I just, without giving any commitment about it, none the less draw your Lordships' attention to the very end of Amendment No. 16, which of course provides that in the special circumstances of any particular case, if the Secretary of State thinks fit, he may treat the 12-month period as a reference to a six-year period.
§ Lord Belstead
They do not, indeed, my Lords. The noble Lord, Lord Avebury, says that they do not know that. That is precisely why I am saying that now, that that provision is in the Bill. It is not in there for nothing. I have not given a commitment, but I have given a marker towards it in an endeavour to try to be as helpful as possible in what I think is a difficult matter.
Finally, your Lordships may say to me, "All right; the Government are trying to be helpful—why not accept the amendment?" We understand the concern of my noble friend, which indeed has prompted her to represent concern which has been expressed by very many people; but I believe that the people she wants to help are being helped effectively under the Bill in other ways—those are the first two categories that I talked about—and that her amendment would benefit people whom I think she will accept do not have quite the same strong claim upon us. Those are the people I mentioned in the third category. I therefore hope, in view of what I have said, that my noble friend may feel that it would not be right to press this amendment.
§ 8.35 p.m.
§ Baroness Elles
My Lords, I am very grateful for the support I have had from other noble Lords in the House on this amendment, and I am also grateful to my noble friend the Minister for giving what can be called more than a full reply. But, of course, he has not been able totally to allay the very genuine fears of those few people who will be affected by the Bill as it stands. I think my noble friend has indeed recognised that there is this anomalous position between Clause 3(2) and Clause 3(6), and the question of having 173 to take a decision as to whether to register or to leave your child stateless and bring it in under Clause 3(6).
My noble friend Lord Campbell pointed out that there is a defect in the drafting, which of course I accept. It was a precedent, which I followed, set by the Government, in their original clauses of the Bill, and if the Government had been more amenable to my amendment and to my possibly tabling it on Third Reading, I would have been happy to do so. But it seems that the Government are not going to be very receptive to that idea. However, I should like them to think again about this particular class of person and to take this problem on board as seriously as they can before Third Reading, to see whether there is some way in which a satisfactory clause could be drafted to cover this particular case of the choice between registering under Clause 3(2) or Clause 3(6).
There really is a genuine fear and feeling of insecurity among many British people working abroad. My noble friend has said that the Government are anxious to meet in every way they can the difficulties of those working in British firms and of those connected with employment on behalf of Britain who are now overseas and who are liable to have families while they are abroad although their main connection and their intentions to come back to this country remain as strong as ever.
My final point is that I should like the Government to undertake—and, indeed, I think my noble friend has already indicated this—that every measure will be taken to ensure that in every consulate, wherever there is registration available under Clause 3(2), full information is made available to those parents who come to register their children—that the alternatives are clearly set out as to what are the possibilities of registering under Clause 3(6) on returning to this country and the final subsection of Amendment No. 16, which is to Clause 3, to which my noble friend has referred. I would regard that undertaking as implicit if my noble friend does not get up and say otherwise, but I regard it as an undertaking which I think this House would expect of the Government. But because of the defects in the drafting and because of what my noble friend the Minister has said, I will withdraw the amendment.
§ Lord Ferrier
My Lords, before the noble Baroness sits down, may I say that I listened carefully to what my noble friend on the Front Bench said about these people working overseas—engineers, employees and the like—and as an ex-East India merchant I feel your Lordships should bear in mind that when my noble friend on the Front Bench talked about people going abroad, then coming back and then going abroad again, there is a class of British individuals who are merchants, and they want to come and go. I have in my hand my mother's birth certificate, dated 1866 and issued in Nagasaki. It shows my grandfather's rank or profession as "Merchant". I hope that in giving the further consideration that my noble friend has asked the Government to give, the Government will bear in mind that there is a very important class of British entrepreneurs who are merchants and may want to go, come back and go again. They are still British wherever they are.
§ Lord Drumalbyn
My Lords, may I add a word on this? I quite understand that my noble friend Lady Elles is bound to withdraw her amendment because of the defect that has been created by the Government's amendments. This is so. The Secretary of State is satisfied and the Government have made the amendment, and this now is a defect. Perhaps that was not the most tactful way to start, but I may as well say it. I would commend this to the Government. I would say that there is a general feeling in the House that this would be a wise amendment for them to make. While my noble friend may feel that it would not be politic—if that is the right word—for her to reintroduce this amendment (as it would have to be amended) I should like the Government very seriously to consider whether they should not do it themselves.
When they think again about this third category that they were talking about, I think that they will feel that it covers a wide area; and where the conditions that are suggested in this amendment are satisfied then it is well worthwhile to keep the traditions of British people living in a foreign land from generation to generation, to keep British customs going, to keep the flag flying and to keep trade going. I still think, as I have pressed so often in the course of these discussions, that this would be a sensible thing to do, and I think it would be very much in the interest of this country to do it.
§ Lord Tanlaw
My Lords, in supporting the noble Baroness in her amendment and in the thinking behind it, I wonder whether for those businessmen working overseas one of the problems today is perhaps not having the correct documentation of proof during times of international and national stress or during hi-jacking —and two of my friends were hi-jacked recently in India. Sometimes for one reason or another best known to themselves the parties or the revolutionaries involved separate people of different nationalities. If businessmen abroad exercise some of the options which the Minister has put forward, I am not clear whether they will have documentary proof—for instance, if they are waiting for registration and taking one of the chances that the noble Baroness suggested—that their child is British.
Some kind of documentation will be necessary in order to assure the parents, even though they have not got the right of citizenship or registration, whichever they are choosing. It is becoming hazardous to work abroad these days and whatever the kind of insurance policy or method operating in this Bill, those who do so must have some piece of paper which will be recognised by the parties, even revolutionary parties or hijackers, for the protection of their children and themselves in times of stress while working overseas.
§ Amendment, by leave, withdrawn.
§ 8.44 p.m.
Lord Elwyn-Jones moved Amendment No. 73:
After Clause 14, insert the following new clause:
§ ("British Dependent Territories
§ .Before the commencement of this Act, the Secretary of State shall, subject to the approval of both Houses of Parliament, make provision for the respective citizenships of each of the dependent territories listed in Schedule 6.").
§ The noble and learned Lord said: My Lords, I gave preliminary indication of the purport of Amendment 175 No. 73 when we were discussing Amendment No. 65 in which, if I may say so without disrespect to the noble Baroness, Lady Vickers, we had a neck-by-neck contest which just finished to her disfavour. That is, our concern with the very great differences in size, character and organisation that the Government have themselves several times referred to in relation to the separate dependencies. They differ in a great many respects and the conclusion of the Government has been that the fact that the dependencies vary greatly one from another does not make it appropriate to give them separate citizenships but that they should be embraced in the general category of "citizens of the dependent territories".
§ We have come to the exact opposite conclusion on that matter. In our view, it is because the dependencies vary so greatly that separate schemes of citizenship would be far more appropriate for them than a single status for the widely scattered peoples of all of them. They are listed in Schedule 6: Anguilla, Belize, Bermuda, British Antarctic Territory, British Indian Ocean Territory, Cayman Islands, Falkland Islands and Dependencies, (about which there are separate arrangements), Gibraltar, Hong Kong, Montserrat, Pitcairn, Henderson, Ducie and Oeno Islands, and St. Helena and Dependencies. The status of "citizen of the dependent territories" confers no rights, no special privileges. It is, in effect, meaningless. We feel that there should be some fundamental departure from that part of the framework of the Bill which is set out in Part II of the Bill, and that in its place the Secretary of State should proclaim by order subject to approval by both Houses of Parliament schemes for the citizenship of each of the dependent territories which are listed in Schedule 6 and which I have just read out.
§ Our debates have included proposals in respect of Hong Kong, Gibraltar and the Falkland Islands and we had a discussion of the particular problems and anxieties of Hong Kong in the course of our debates earlier today. My information is—the noble Lord, Lord Geddes, was much nearer to the Hong Kong ground than I have been—that they have been particularly concerned in Hong Kong at what they feel to be a distancing of the United Kingdom from association with Hong Kong. So long as Hong Kong and the United Kingdom enjoy a common citizenship with each other, as they do now, even the fact that this common citizenship has been, in effect, split up by immigration law has not taken away altogether the feeling that the United Kingdom is committed to a connection with the people of Hong Kong—which is a feeling of very great importance in view of the events which will occur by the end of the century.
§ There is a real worry on the part of the Hong Kong Government as the noble Lord, Lord Geddes, has said more than once, that as a result of the Bill they will appear less British in the eyes of the world and the people with whom the people of Hong Kong now have dealings. But it may be that we shall come to the specific matter of Hong Kong later in our discussions.
§ But the aspect of this amendment which I particularly wish to emphasise in this debate is this. We have, rightly, paid serious attention to the territories I have mentioned but I fear that we have not paid enough attention to all the other dependencies and to their 176 needs and wishes. An entire scheme is going to be pushed through by default in this Bill, a scheme affecting people in the territories that I have mentioned, without, I submit, a proper concern, without perhaps negotiations with them, discussions with them, discussions with other countries of the Commonwealth who are equally concerned—I do not know! We shall look forward to hearing what was done in that way before these proposals came forward.
§ The smaller the country is in some ways the more intense is its feeling about the importance of maintaining its own identity and constitution. I remember that we had experience of this: when the British Government proposed to include Anguilla in the same statehood as St. Kitts they, in the face of resistance to that proposal, had to give way and allow Anguilla to retain quasi-colonial status instead of being part of an associated state. I remember a Minister of the Government who was perhaps fortunate to make an escape at great haste from Anguilla to avoid the problems that were arising at that very time. It was not me, I am happy to say; I held a different kind of office. But that was the experience of Anguilla. How relieved my then friend was to return to the safety of Westminster!
§ Therefore, there is a strong feeling in these communities, a historic feeling, a real feeling of identity, which they do not see immersed in the generality of this new concept in the Bill. So we ask in this amendment that the Government should allow time for all the separate dependencies, not only those which happily have had the good fortune to have good and eloquent advocates in this House, to be able to work out with the British Government citizenship schemes suited to their particular needs. It will, as I have suggested, involve the fullest consultation before that process is completed.
§ We think that if in 1948 separate citizenships had been established for all the colonies then existing with the genus of British nationality, many problems would have been avoided. Existing citizenships of colonies could very much more easily have been transformed into citizenships of newly independent countries without the risk of some groups being left out as has happened I fear over and over again in independence constitutions.
§ We are no longer now in a colonial era. Indeed, the only reason we have any dependencies left at all is that some of the territories concerned are very small for the purposes of economic self-sufficiency and defence, while others are the subject of political problems or ambiguity about sovereignty. In my submission, we should not at a time when we are supposed to be bringing our law up to date behave in an even more colonialist way than we have ever done before by lumping all these territories together just as dependencies separate from the United Kingdom in that they do not share its citizenship but are connected with it in the sense that we are responsible historically and now practically for their fate.
§ If this amendment is passed there will be time and opportunity for practical schemes to be worked out which can respond to the wishes of the people in these various territories. I submit that this is the least that we can offer at this stage in our history. I beg to move.177
§ 8.55 p.m.
§ Lord Trefgarne
My Lords, this amendment and those which are related to it—that is to say Amendments Nos. 79, 80, 85, 86, 94, 99, 102, 106, 107, 108 and 111—would mean that each dependent territory would have its separate citizenship. The Secretary of State would by order make a scheme of citizenship for each dependent territory which, as the noble and learned Lord has explained, would be subject to parliamentary approval, and the Bill could not come into force until this had been done. In other words, we should need to negotiate and obtain parliamentary approval for some 10 or more citizenships before the Bill could come into force. The noble and learned Lord did not explain what would happen if parliamentary approval was not obtained. The composite citizenship of the British dependent territories in Part II of the Bill would thus disappear.
Now, my Lords, as we made clear in the White Paper and in the Second Reading debate, the Government have carefully considered the possibility of establishing separate citizenships for the dependent territories. But we have concluded that this is not a practical option. Perhaps I might explain to your Lordships in a little detail the reasons for this decision. Let me begin with the practical problems. As we said in the White Paper, the dependencies vary greatly in size and political organisation. Some are very small and are in no way ready to have a separate status. It would, for instance, be incongruous—not to say absurd—to have a separate citizenship of say the Pitcairn Islands, or the British Antarctic Territory. Now, it may be argued that we should none the less let those territories which are sufficiently developed and homogeneous have their own citizenships. That is not what the amendment would achieve. They are, after all, in a few cases larger than some independent countries and it may be said that there is no reason why they should not enjoy a separate citizenship status.
But, my Lords, where would this leave the smaller territories? Those who were left with a composite citizenship would inevitably feel that they had a second-class subordinate status. It may be argued that this problem could be overcome at least for the smaller territories by according them British citizenship. But as was explained when we were discussing the Gibraltar amendment, and earlier this evening over the amendment proposed by my noble friend Lady Vickers, this would cause great resentment. Those dependencies without British citizenship would feel that the objective of the citizenship scheme really was to exclude them in particular from British citizenship and so distance them from the United Kingdom.
It may again perhaps be said that the principle of treating dependencies differently has already been established by the inclusion in the Bill of the Gibraltar amendment. But I am afraid that the Government cannot accept this view. First, we have made clear our opposition to that amendment. Secondly, it must be remembered that that amendment does not, as such, create a separate citizenship for Gibraltarians. It does not affect the Gibraltarians' status as citizens of the British dependent territories nor does it confer British citizenship on them automatically. This is a very different matter from creating entirely separate citizenships.
178 Another practical problem, which I think must be taken into account, is the wishes of the dependencies themselves. The noble and learned Lord referred to that during his remarks. Not even the larger dependent territories have shown any general wish to have a separate citizenship. They value their connection with this country and they want a status which adequately reflects this connection. Many dependencies would have preferred to keep citizenship of the United Kingdom and colonies. But if there must be change, then they want it to be replaced by something which clearly retains the link with the United Kingdom. They do not want an independent status which would appear to distance them still further from the United Kingdom. They are not, after all, independent entities and they do not seek to have the appurtenances of independence at this stage. A separate citizenship could be thought to herald an impending change in their status, which they do not seek and which might well be misunderstood in those territories and the countries with which they have dealings.
It is notable, my Lords, that there has for all these years since 1948 been no serious objection raised to the existence throughout the dependencies of the composite citizenship of the United Kingdom and Colonies. In principle there seems no real reason why separate citizenships should emerge as the only feasible solution just because that citizenship is being split between the United Kingdom and the dependencies. A composite citizenship, it seems to me, remains a very reasonable option, and one which accurately reflects the relationship which our remaining dependencies all have with us.
It is argued that a composite citizenship for the dependencies is defective because the proposed citizenship of the British Dependent Territories does not carry with it the right of abode in the dependency from which the holder derives his status. It is apparently thought that a separate citizenship for the dependencies would somehow benefit the people concerned. But this view does not stand up to scrutiny.
First, while it is true that a collective citizenship of the British Dependent Territories does not of itself create the right of abode in a particular territory—in this it will be no different from citizenship of the United Kingdom and Colonies—the dependencies will be reviewing their immigration ordinances in the light of the Bill. They have indicated to us that in general they will be prepared to amend these so as to give a citizen of the British Dependent Territories who has acquired that status by virtue of a connection with that territory the right to settle in that territory and that, where this presents difficulties, they will at least see that those who have no right of abode elsewhere are covered. Thus most citizens of the British Dependent Territories connected with a particular dependency will in practice have the right of abode in that dependency.
Secondly, it is erroneous to suppose that separate citizenships would automatically ensure that citizenship and the right of abode were linked in the dependencies. The only way we could ensure that a separate citizenship carried with it the right of abode in a particular dependency would be to define it by reference to the immigration ordinances of the dependency concerned. But this would lead to intolerable confusion. The immigration ordinances of the dependent territories 179 are under their own control; they vary from territory to territory; and the dependencies would not be prepared to hand over their control. Citizenship would thus be acquired in different ways and on different terms in the dependencies. There would be a much greater risk under this arrangement of a significant number of people who have ties with a dependency failing to acquire the right of abode there and having no other right of abode. We should in effect be handing over to the dependencies the arrangements for their citizenship, and this is fundamentally incompatible with their status. They are not sovereign states and it is for Parliament at Westminster to decide these matters, not the individual legislatures of comparable bodies in the dependencies.
But this principle is difficult to reconcile with the creation of separate citizenships. It will be asked: if separate citizenships do not reflect a new and more independent status for the dependencies, what are their purpose? If the dependencies have a separate citizenship, why do they not have the power to regulate it? These are powerful grounds for uncertainty, doubt and suspicion, and we are after all trying in the Bill to devise a clearer system of citizenship, not one which breeds confusion.
To sum up, therefore, we continue to believe that a collective citizenship of the British Dependent Territories is the best available solution to a difficult problem. Separate citizenships are not generally wanted. We do not think that, in practice, the fact that citizenship of the British Dependent Territories does not automatically carry with it the right of abode in a dependency will cause any significant problems. Any difficulties which there may be in this respect are likely to be intensified rather than lessened by the creation of separate citizenships, unless we are prepared to allow the dependencies to dictate the terms on which the citizenships may be held. That is clearly undesirable. Separate citizenships determined by Westminster risk giving the illusion of independent status, while withholding the reality—thus leading to resentment and misunderstanding.
The Government also doubt very much whether it is sensible, and cannot be expected to accept an amendment which amounts to discarding Part II of the Bill at this late stage. The dependencies are prepared to review their immigration ordinances to bring them into line with the Bill. To put the whole process back, to throw overboard the whole scheme of British Dependent Territory citizenship, is bound to cause the greatest confusion. Implementation of the Bill would be delayed almost certainly for some years by consultations on the individual citizenships; and the end result will be that our citizenship law would work differently from one dependent territory to the next. That is bound to cause uncertainty and confusion, both internationally and domestically, and the Government cannot believe that it would be sensible to go down that road. Accordingly, my Lords, I have to say that we see real difficulties in this and the amendments related to it and the citizenship arrangements for the peoples of the dependent territories which are envisaged. I hope therefore that, in view of what I have said, noble Lords will not see fit to press their amendments but, if they do, I hope that your Lordships will vote against them.
§ Lord Elwyn-Jones
My Lords, the difficulties that the noble Lord has mentioned do undoubtedly exist, but they should have been thought about before this Bill was brought before the House, in my submission. It is perfectly true that the citizens in the dependent territories would much rather still be classified as citizens of the United Kingdom and Colonies—of course they would—but the Government have got rid of that concept. That legal status does not exist any more. If I may say so, they are being reduced to this "composite citizenship" which the noble Lord described, which is to be common for all 10 or so of these territories, highly different in their history, their constitutions and their power of self-government. They are all to be included in this wide and, I still submit, meaningless embrace, carrying no specific rights. There is this reassurance, which is good as far as it goes, that they have promised apparently in the consultations that have been taking place with the Governments that their immigration rules will provide for the people of those separate territories a right of abode. I should be interested to know what is involved and what was said, and whether those who have no right of abode elsewhere will be covered. Does that mean that all these separate arrangements will make it certain that there will be no statelessness resulting from this action? We should very much like to know.
If I may say so, one has the impression that this very important part of the Bill—Part II of the Bill—has not been sufficiently thought out nor been the subject of sufficient consultation—not only with the Governments of the territories concerned but also with their peoples. What has been the extent of the discussions? Have there been great discussions and great meetings? Has great consideration been given to these matters in these territories? I think we have rather been left in the dark. We are moving in the dark in a certain sense and we are instead creating in these territories and for those people for whom we are now responsible a sense of uncertainty and dissatisfaction about what they believe would be a reduction in their status and in the value of their citizenship.
§ 9.10 p.m.
§ On Question, Whether the said amendment (No. 73) shall be agreed to?
§ Their Lordships divided: Contents, 25; Not-Contents, 82.181
|DIVISION NO. 4|
|Ardwick, L.||Llewelyn-Davies of Hastoe, B.[Teller.]|
|Boston of Faversham, L.||McCarthy, L.|
|Collison, L.||Milner of Leeds, L.|
|David, B.||Peart, L.|
|Davies of Leek, L.||Phillips, B.|
|Elwyn-Jones, L.||Pitt of Hampstead, L.|
|Elystan-Morgan, L.||Ponsonby of Shulbrede, L.[Teller.]|
|Howie of Troon, L.||Ross of Marnock, L.|
|Irving of Dartford, L.||Scanlon, L.|
|Jeger, B.||Underhill, L.|
|Jenkins of Putney, L.||Wells-Pestell, L.|
|Airey of Abingdon, B.||Kinross, L.|
|Ampthill, L.||Kitchener, E.|
|Avon, E.||Loudoun, C.|
|Belstead, L.||Lucas of Chilworth, L.|
|Boardman, L.||Lyell, L.|
|Brougham and Vaux, L.||Mackay of Clashfern, L.|
|Campbell of Alloway, L.||Macleod of Borve, B.|
|Chelwood, L.||Mansfield, E.|
|Cockfield, L.||Margadale, L.|
|Coleraine, L.||Marley, L.|
|Colville of Culross,V.||Massereene and Ferrard,V.|
|Cork and Orrery, E.||Monk Bretton, L.|
|Cowley, E.||Montgomery of Alamein,V.|
|Crathorne, L.||Murton of Lindisfarne, L.|
|Croft, L.||Newall, L.|
|Cromartie, E.||Northchurch, B.|
|Cullen of Ashbourne, L.||Orr-Ewing, L.|
|de Clifford, L.||Platt of Writtle, B.|
|Denham, L.[Teller.]||Portland, D.|
|Drumalbyn, L.||Redesdale, L.|
|Dundee, E.||Renton, L.|
|Elles, B.||Rochester, Bp.|
|Elliot of Harwood, B.||Sandford, L.|
|Elton, L.||Sandys, L.[Teller.]|
|Ferrers, E.||Sempill, Ly.|
|Ferrier, L.||Sharples, B.|
|Fortescue, E.||Skelmersdale, L.|
|Gainford, L.||Spens, L.|
|Gardner of Parkes, B.||Strathcarron, L.|
|Geddes, L.||Thurlow, L.|
|Gisborough, L.||Tranmire, L.|
|Gray, L.||Trefgarne, L.|
|Gridley, L.||Trenchard, V.|
|Grimston of Westbury, L.||Trumpington, B.|
|Hanworth,V.||Vaux of Harrowden, L.|
|Harvington, L.||Vivian, L.|
|Hives, L.||Ward of Witley,V.|
|Hornsby-Smith, B.||Westbury, L.|
|Kemsley, V.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 9.18 p.m.
§ Clause 15 [Acquisition by birth or adoption]:
§ Lord Elwyn-Jones had given notice of his intention to move Amendment No. 74:
Page 15, line 6, leave out from ("birth") to end of line 8 and insert—
("(a) his father or mother is a citizen of the British Dependent Territories; or
(b) his father or mother is settled in a dependent territory; or
(c) he would, but for this subsection, be stateless.").
§ The noble and learned Lord said: My Lords, this amendment is consequential on Amendment No. 1. That having been defeated, it falls.
§ [Amendment No. 74 not moved.]
§ [Amendment No. 75 not moved.]
Lord Belstead moved Amendment No. 76:
Page 15, line 31, leave out ("the Secretary of State is satisfied that").
§ The noble Lord said: My Lords, this amendment is consequential on previous amendments. I beg to move.
§ On Question, amendment agreed to.
§ Lord Trefgarne moved Amendment No. 77:182
Page 15, line 40, at end insert—
("( ) Where an order in consequence of which any person became a citizen of the British Dependent Territories 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 such a citizen.").
§ The noble Lord said: My Lords, on behalf of my noble friend Lord Belstead, I rise to move Amendment No. 77. This Amendment is identical in effect to an earlier amendment which was accepted by your Lordships to Clause 1 of the Bill. I hope that it may therefore be regarded as consequential. My Lords, I beg to move.
§ On Question, amendment agreed to.
§ Lord Trefgarne moved Amendment No. 78:
Page 15, line 40, 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 thatsubsection 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 dependent territory there mentioned in that year or each of the years in question exceeds 90.").
§ The noble Lord said: My Lords, again, this follows the advice of my noble friend Lady Trumpington in connection with an earlier amendment. The Government having seen the light, I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 79 not moved.]
§ Clause 16 [Acquisition by descent]:
§ [Amendment No. 80 not moved.]
§ Clause 17 [Acquisition by registration: minors]:
§ The Deputy Speaker (Lord Ampthill)
My Lords, I should point out to the House that there is a misprint. The next amendment should read:Page 16, line 20, leave out subsections (2) to (5) and insertthe words as printed.
§ Lord Trefgarne moved Amendment No. 81:
Page 16, line 20, leave out subsections (2) to (5) and insert—
("(2) A person born outside the dependent territories shall be entitled, on an application for his registration as a citizen of the British Dependent Territories 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 Lord said: Again, this is consequential upon an earlier amendment. I beg to move, my Lords.
§ On Question, amendment agreed to.
Lord Trefgarne moved Amendment No. 82:
Page 18, line 4, leave out ("the Secretary of State is satisfied") and insert ("the following requirements are satisfied, namely").
§ The noble Lord said: My Lords, this is the "Gifford amendment". I beg to move.
§ On Question, amendment agreed to.
Lord Trefgarne moved Amendment No. 83:
Page 18, line 23, after ("application") insert ("or his father and mother were legally separated on that date").
§ The noble Lord said: My Lords, I am told that this is consequential upon Amendment No. 29. I beg to move.
§ On Question, amendment agreed to.
Lord Trefgarne moved Amendment No. 84:
Page 18, line 33, leave out subsection (8).
§ The noble Lord said: My Lords, this is consequential upon Amendment No. 16. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 85 not moved.]
§ Clause 18 [Acquisition by naturalisation]:
§ [Amendment No. 86 not moved.]
§ Schedule 1 [Requirements for naturalisation]:
Lord Trefgarne moved Amendment No. 87:
Page 53, line 26, after ("physical") insert ("or mental").
§ The noble Lord said: My Lords, again this is a consequential amendment. I beg to move.
§ On Question, amendment agreed to.
§ Lord Trefgarne moved Amendment No. 88:
Page 53, line 46, leave out sub-paragraph (e) and insert—
("(e) the requirement specified in paragraph 5(1)(b).").
§ The noble Lord said: My Lords, yet again this amendment is consequential. I beg to move.
§ On Question, amendment agreed to.
Lord Trefgarne moved Amendment No. 89:
Page 54, line 4, after ("6(c)") insert ("and (e)").
§ On Question, amendment agreed to.
§ Clause 19 [Right to registration by virtue of residence in dependent territory]:
§ [Amendment No. 90 not moved.]
§ The noble Lord said: My Lords, this is one more of the amendments which we have brought forward to make clear that an applicant's entitlement does not depend upon the Secretary of State being satisfied. I beg to move.
§ On Question, amendment agreed to.
Lord Trefgarne moved Amendment No. 92:
Page 19, line 19, leave out ("both at commencement and").
§ The noble Lord said: My Lords, these amendments are the equivalent for the citizenship of the British dependent territories to an amendment already made to Part I. I beg to move.
§ On Question, amendment agreed to.
§ Lord Trefgarne moved Amendment No. 93:
Page 19, line 23, at end insert—
("(2) If in the special circumstances of any particular case the Secretary of State thinks fit, he may treat subsection (1) as if the reference to five years after commencement were a reference to eight years after commencement, but shall not do so unless the person to whom the application relates would have been entitled to be registered under that subsection on an application made immediately before the end of the five years after commencement.").
§ The noble Lord said: My Lords, as for the previous amendment. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 94 not moved.]
§ Clause 20 [Registration by virtue of marriage.]:
§ 9.23 p.m.
Lord Elystan-Morgan moved Amendment No. 95:
Page 19, line 27, after ("made") insert ("subject to subsection (4)").
§ The noble Lord said: My Lords, the purposes of this amendment in their principle are very similar to Amendments Nos. 52, 53, 54 and 55 which were moved earlier today by my noble friend Lady Birk. On that occasion the Minister maintained that in relation to married women he could not see fit to extend the period from five to eight years and drew a distinction between that situation and the situation of minors, the basis of the distinction according to the Minister being that in the case of the married woman, as I understood it, she would have to be married after commencement and therefore there would be the effluxion of the full period of five years. Therefore the Government did not see fit to extend the period. I would ask the Government to reconsider the situation both in relation to this amendment and in relation to the amendments moved by my noble friend Lady Birk, for the reasons that were cogently put forward by her.
§ Many wives will not feel concerned with such matters as citizenship, regarding those matters to be the prerogative of the husband. In some cases they will be widowed and will have lost the support and assistance and direction of the husband in these matters in any event. My noble friends and I take the view that there are bound to be very many hard cases in this sphere and that it would be worthy of the Government and of 185 Ministers opposite, who have shown a great deal of understanding and humanity in relation to certain parts of the Bill, if indeed they were to extend the same consideration to this particular matter. I beg to move.
§ Lord Trefgarne
My Lords, I am afraid that we see the same difficulties in these amendments as we did in the equivalent amendments to Clause 7, to which the noble Lord referred. Perhaps I may, as briefly as possible, remind your Lordships of those difficulties. First, there is the problem that the drafting of the discretionary power is not as appropriate in the context of Clause 20 as it was in its original context of Clauses 6 and 19. It refers to the power not being exercised,unless the person to whom the application relates would have been entitled to be registered on an application made immediately before the end of the five years after commencement".These words were necessary in the case of Clause 19 since, under that clause, a person could continue to acquire an entitlement after commencement. They are not, however, needed in the case of Clause 20 since under this clause no one can acquire an entitlement after commencement.
Secondly, a discretionary power to accept late applications is not in our view as necessary under Clause 20 as it was under Clause 19. A discretionary power was included in Clause 19 largely to meet the needs of those who might not acquire an entitlement until near the end of the qualifying period and who might therefore have considerably less than five years in which to submit an application. But all those with an entitlement under Clause 20 will have the full five years in which to apply. There does not therefore seem to be the same compelling need for an extension power.
Finally, there is the point that acceptance of this amendment would delay the introduction of sex equality in nationality matters. It would continue, for a further three years after commencement, the current more favourable treatment of women under our nationality law. This would not in our view be desirable. I hope, therefore, that in the light of what I have said the noble Lord will not seek to press his amendment.
§ On Question, amendment negatived.
§ [Amendments Nos. 96 to 99 not moved.]
§ Clause 21 [Right to registration by virtue of father's citizenship etc.]
§ 9.30 p.m.
Lord Mackay of Clashfern moved Amendment No. 100:
Page 20, line 35, leave out from ("if") to ("the") in line 36 and insert ("(a)").
§ The noble and learned Lord said: My Lords, this amendment is consequential. I beg to move.
§ On Question, amendment agreed to.
Lord Mackay of Clashfern moved Amendment No. 101:
Page 20, line 43, leave out from ("(b)") to ("become") in line 44 and insert ("had that person been born before commencement and").
§ The noble and learned Lord said: My Lords, this also is consequential. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 102 not moved.]
§ Clause 22 [Right to registration replacing right to resume citizenship of U.K. and Colonies.]:
Lord Mackay of Clashfern moved Amendment No. 103:
Page 21, line 3, leave out ("the Secretary of State is satisfied that").
§ The noble and learned Lord said: My Lords, this amendment is also consequential. I beg to move.
§ On Question, amendment agreed to.
§ Lord Trefgarne moved Amendment No. 104:
Page 21, line 11, at end insert—
("(1A) On an application for his registration as a citizen of the British Dependent Territories made by a person of full capacity who had before commencement ceased to be a citizen of the United Kingdom and Colonies as a result of a declaration of renunciation, the Secretary of State may, if he thinks fit, cause that person to be registered as a citizen of the British Dependent Territories if that person—
§ The noble Lord said: My Lords, these amendments —that is, Nos. 104 and 105—are the equivalent for the British dependent territories of amendments moved earlier to Clause 9. I beg to move.
§ On Question, amendment agreed to.
Lord Trefgarne moved Amendment No. 105:
Page 21, line 12, leave out ("this section") and insert ("subsection (1)").
§ On Question, amendment agreed to.
§ [Amendments Nos. 106 to 108 not moved.]
§ Clause 25 [Meaning of citizen of the British Dependent Territories "by descent"]:
§ Lord Trefgarne moved Amendment No. 109:
Page 24, line 12, at end insert—
("(bb) he is a citizen of the British Dependent Territories by virtue of registration under section 17(1) and either—
§ The noble Lord said: My Lords, this amendment is the equivalent for citizenship of the British dependent territories to an earlier amendment accepted by your Lordships to the scheme of British citizenship. It would mean that a child registered under the Home Secretary's discretionary power to register minors in Clause 17(1) would be a citizen of the British dependent territories by descent if his parents were themselves such citizens or would have been so but for their death. I beg to move.
§ On Question, amendment agreed to.187
Lord Trefgane moved Amendment No. 110:
Page 25, line 9, after ("descent"") insert ("by virtue of subsection (1)(b), (c), (d) or (e)").
§ The noble Lord said: My Lords, this amendment is identical in effect again to an earlier amendment accepted by your Lordships to Clause 14 of the Bill, the equivalent provision in the scheme of British citizenship. Like that earlier amendment it is a technical drafting amendment designed to clarify the scope of the proviso to Clause 25(1) in Clause 25(2). I beg to move.
§ On Question, amendment agreed to.
Lord Elwyn-Jones had given notice to move Amendment No. 111:
Leave out Clause 25.
§ The noble and learned Lord said: My Lords, this amendment will not be moved, and I hope your Lordships will not think that the series of occasions on which I have not moved amendments reflects a lack of determination to continue vigorously our examination of the remaining amendments on the Marshalled List. The pace of events has been hastened by the unfortunate demise of Amendment No. 73, but there it is. Time flies, and perhaps we will in due course fly with it.
§ [Amendment No. 111 not moved.]
§ Clause 27 [Registration of minor children]:
Lord Trefgarne moved Amendment No. 112:
Page 25, line 34, leave out from ("if") to ("the") in line 35 and insert ("(a)").
§ The noble Lord said: My Lords, this is a further amendment to remove a reference to an entitlement which seems to imply that the entitlement is held only where the Secretary of State is satisfied that specified requirements have been met. In this case the amendments will remove that reference in Clause 27 which preserves in terms of British Overseas Citizenship the effect of the present arrangements for consular registration for a limited period after commencement, and will make consequential drafting changes. I beg to move.
§ On Question, amendment agreed to.188
Lord Trefgarne moved Amendment No. 113:
Page 26, line 8, leave out from ("(b)") to ("become") in line 9 and insert ("had that person been born before commencement and").
§ On Question, amendment agreed to.
§ Clause 28 [Registration by virtue of marriage]:
§ [Amendments Nos. 114, 115 and 116 not moved.]
§ Lord Elwyn-Jones had given notice of his intention to move Amendment No. 117:
Page 27, line 17, at end insert—
("(4) If in the special circumstances of any particular case the Secretary of State thinks fit, he may treat any of the foregoing subsections as if the reference to five years after commencement were a reference to eight years after commencement, but shall not do so unless the person to whom the application relates would have been entitled to be registered under that subsection on an application made immediately before the end of the five years after commencement.").
§ The noble and learned Lord said: My Lords, we discussed this matter earlier and regretfully we were unsuccessful. Therefore, I shall not move the amendment.
§ Lord Denham
My Lords, I think that we have probably made rather good progress today, and I think that I must express the gratitude of the Government to the House for the expeditious way in which it has moved. Therefore, I beg to move that further consideration on Report be now adjourned.
§ Moved accordingly, and, on Question, Motion agreed to.