HL Deb 29 October 1981 vol 424 cc1141-61

118Clause 43, page 38, line 8, at beginning insert— ("subject to subsection (1) herein,").

The Commons disagreed to the above Amendment for the following Reason:

119 Because discretionary decisions under the Act should not be subject to appeal to, or review in, the courts.

Lord Belstead

My Lords, I beg to move that this House doth not insist on its Amendment No. 118. The Commons have, as your Lordships will know, disagreed with this amendment for the reasons which are given on the Marshalled List. Of the 90 amendments which your Lordships sent to the Commons, this is the only one with which the Commons have disagreed in principle. I would ask your Lordships to bear in mind the acceptance by my right honourable friend the Home Secretary of all the other amendments, many important, which the House has made during the long stages of this Bill. Your Lordships may therefore wonder why my right honourable friend was not able to recommend acceptance of this amendment, and why another place disagreed with the amendment by a margin of 56 votes.

The reason given by the Commons on the Marshalled List for its disagreement goes to the heart of our objections. This amendment is intended to make the Secretary of State's discretionary decisions under this Bill subject to the courts whenever an unsuccessful applicant alleges that he has been discriminated against on grounds of race, colour or religion. The grounds for the Secretary of State's decision in sensitive naturalisation cases could thus be open to public scrunity whenever an applicant chose to allege discrimination.

In the national interest I really do think that this would be highly undesirable, particularly as there are other ways of taking forward allegations of discrimination. By far the most significant area where the Secretary of State is to exercise discretion under this Bill is naturalisation. The provisions for naturalisation set out in Schedule 1 to the Bill have been agreed by both Houses. They include good character, which needs to be assessed not on objective criteria, because that has not been the habit in this country, but on the basis of all relevant factors known to the Home Secretary. Now, my Lords, if the courts were to review a decision which it had been alleged had been taken on grounds of race, colour or religion, they might well find in certain cases that they were cases involving bad character, or even security.

As many of your Lordships, with your experience, will be very well aware, there would be particular difficulties where the Secretary of State proposed to refuse an applicant on security grounds. He would have to reckon with the possibility that the aggrieved applicant might allege discrimination, take his case to the courts, and try to secure there an investigation in public into the reasons for the decision. Even if such a case was heard in camera, the mere request for such a hearing would make the aggrieved applicant aware of the circumstances surrounding the refusal. Also, even in camera proceedings based on affidavits would be open to criticism unless the other side was aware of the Home Secretary's case. Thus security details would inevitably become known publicly. I am sure that your Lordships will agree that this would not be in the national interest.

For these reasons, my Lords, the Government share the views of the Commons that discretionary decisions under the Bill should not be subject to appeal or review in the court. This amendment, which the noble and learned Lord, Lord Elwyn-Jones, moved into the Bill in previous stages of the deliberations which we had, represents an incomplete appeals system which would nevertheless be very damaging indeed in naturalisation cases, although may I say I accept immediately that that was not in any way the intention of the noble and learned Lord.

May I go on to say that the Government understand full well the concern which prompted the noble and learned Lord to move the amendment, and the concern which lies behind the amendment. We accept that an applicant for citizenship at discretion, who believes that he or she has been discriminated against on grounds of race, colour or religion, should have some means of redress. But there are other avenues which we believe will meet the needs of those concerned. Such people will be able to take the matter up with Members of Parliament or with a Member of your Lordships' House. My right honourable friend the Home Secretary is responsible to Parliament in the exercise of his discretion under the Bill. He and his successors and those who work for them would be bound to take most seriously representations made to them by Members of Parliament to the effect that a particular decision had been taken on discriminatory grounds. It also seems inconceivable that an allegation that discretion had been exercised in a discriminatory way would not amount to a complaint of most serious maladministration. It would be alleged in effect that the Secretary of State, in exercising his discretion, had breached the very important principles set out in Clause 43 (1). In such circumstances, Parliament has its Commissioner for Administration (the Ombudsman) to investigate if the case is referred to him: and a very good thing too.

We consider therefore that there are already real remedies which are available to the unsuccessful applicant who considers that he or she has been the victim of discrimination. These remedies do not risk causing the considerable harm which we believe could flow from the power to review the Secretary of State's discretion in naturalisation cases which in our view would very probably result from this amendment.

My Lords, I hope your Lordships will agree that the Government had good reasons for asking the Commons to disagree with this amendment—alone out of the 90 which your Lordships made. We would not have taken so drastic a step at this late stage in the Session unless we really felt that there was very real cause for concern. I have attempted to set out those reasons today. I urge your Lordships in the strongest possible terms not to insist on your amendment.

Moved, That this House doth not insist on their Amendment No. 118, to which the Commons have disagreed for the Reason numbered 119.—(Lord Betstead.)

4.22 p.m.

Lord Elwyn-Jones

My Lords, in one sense, as the lawyers would say, this is res adjudicata. It was decided by the House in Committee stage by a majority of 94 votes to 70 that this precise amendment should be introduced into the Bill. It was introduced and carried. The amendment was supported on all sides of the Committee and by distinguished lawyers in different parts of the House on the Conservative and Liberal Benches—I will not mention the Labour Benches lest I be thought guilty of immodesty. It received the approval of the Committee to a substantial degree. All the matters that have been raised by the noble Lord were then canvassed and considered, and considered responsibly. Therefore, I greatly hope that, as we are now dealing with precisely the same amendment, those who supported it previously will be inclined to maintain consistency in their approach.

It does of course raise important considerations. There are two subsections to Clause 43, as the House will know. The first subsection reads: Any discretion vested by or under this Act in the Secretary of State, a Governor or a Lieutenant-Governor shall be exercised without regard to the race, colour or religion of any person who may be affected by its exercise.". That subsection was introduced in another place by the Government and it was introduced—so said the Minister of State, Mr. Raison, and I quote: to allay the fears of the minority communities". There were such fears and I am afraid there are still such fears, and presumably therefore the Government intend and intended the clause to be effective, to have a purpose, to give to a person complaining that his application, say for naturalisation or registration—these discretionary powers run through the Bill—was dealt with with regard to his race and that there were racial factors affecting the determination of his application.

The second subsection provides that— The Secretary of State, a Governor or a Lieutenant-Governor … shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion;"— so he does not have to give reasons: and then it goes on— … and the decision of the Secretary of State or a Governor or Lieutenant-Governor on any such application shall not be subject to appeal to, or review in, any court.". So you have in the first subsection a solemn pronouncement that these discretionary powers shall be exercised in a certain way—that is to say without regard to race, et cetera—and in the second subsection a complete blockage on any attempt to challenge when in a given case an applicant can bring before the court evidence that there has been a racialist element in the discretion. The occasions on which that would be done would be very few and far between; I cannot imagine it happening under the present Home Secretary. But of course this is legislation for the future as well.

My submission is that as the clause would stand without the amendment in the second subsection inserting there subject to subsection (1) herein"— the famous pronouncement that the power shall be exercised without regard to race, colour or religion is of merely cosmetic effect. Some of the most oppressive regimes in the world have great declarations of principles and rights, with no remedies and no redress. They are useless—indeed they are a mockery. I would not go so far as to say that this is a mockery, because of course the mere declaration has a certain limited value in itself. But, as they stand, subsections (1) and (2), as I see them and as others saw them in our earlier debates, are in conflict, and the purpose of the amendment is to ensure that subsection (1) should be made to prevail over subsection (2).

There could be a case where facts could be proved that there was an exercise of racial discrimination. On a very exceptional case somebody might be able to say that a future Secretary of State said: "Mr. X—that notorious black man? We could not have him naturalised or have the claim of his son registered." What is to happen there? Is all that is suggested is that he should raise it in the House of Commons? Unfortunately, admirable though Parliament is as an institution and admirable as is the Commons, where most of these complaints would apparently go, the parliamentary remedies are no real substitute for access to a court of law. It is very difficult publicly to give parliamentary answers and have debates about matters relating specifically to the position of individuals. There is no opportunity for cross-examination. Recourse to the Parliamentary Commissioner involves a complication, and again it is no substitute for the right of legal redress in an appropriate case.

Courts have a sense of public responsibility. They have the means in their procedures to protect state secrets. I have appeared in many cases, in the Old Bailey and elsewhere, where matters of enormous importance to the security of this country were involved and had to be ventilated in closed court. I have no record of any leakage or damage having been done to the security of the state, as a result of that procedure and that necessity.

During the debate in Committee, the noble Viscount, Lord Colville—and I hope he does not mind my quoting from him; I am sure he is unlikely to—said at column 696 of Hansard: I do not see any reason why the Government wish to object—if there is the rare and conceivable case where you have actual evidence that a discretionary decision has been taken to the detriment of somebody because of his race, colour or religion—that that matter should be precluded from being appealed.—"[28/7/81.] I entirely agree and I venture to think that it was thinking on those lines that led the Committee to carry the amendment.

If anything, the need for the amendment to remain in the clause is possibly greater now than it was at the Committee stage, because we had not at that stage had the rejection by the Government of the attempt by the noble Viscount, Lord Colville, to place modest limits on Clause 44(2), the ouster clause. His amendment did not over-ride the Secretary of State's ultimate discretion. It proposed a modest but useful limitation on unfettered discretion in the Secretary of State, and gave a right of appeal for the benefit of applicants for naturalisation, who were turned down because they failed to meet the requirements of residence, sufficient knowledge of language and a future intention to reside.

It gave a right of appeal to a committee of inquiry under the chairmanship of a judge, similar to that provided for in another part of the Bill and, indeed, similar to that which has functioned in immigration matters since 1948. But it was rejected by the Government. They have taken an absolute position of refusal to limit, even in clearly justiciable matters, the absolute ipse dixit of the Secretary of State. In this day and age when, increasingly, the court has been enabled to intervene in matters of natural justice, in matters of civil liberty, it is indeed dismaying that the Home Office should be taking this total, obstructive position in regard to this matter.

I ask the noble Lord: What remedy does subsection (1) provide? Does it give any access to the courts? If it does give some means of access, why object to the inclusion of the amendment in subsection (2)? If it shuts the doors of the courts on the complainant, what real use is it? In my submission, this is an occasion when this noble House can show to the British public that civil liberty and racial equality are matters of concern in this House.

4.34 p.m.

Lord Avebury

My Lords, the noble Lord the Minister said that there were reasons given by the Commons for disagreeing with the amendment, but in fact there is only one reason, and one reason only, and as he said, it is an important reason of principle. But it is here set out on the Marshalled List, because the Government believe and, as the noble Lord said, another place by a majority, believes, that discretionary decisions under the Act should not be subject to appeal to, or review in, the courts. That is a fundamental matter of principle, which now has to be resolved in the light of the arguments which have been put to us by the Minister.

The Minister has said that applicants can go to the courts at any time, if the words that your Lordships inserted are retained, because they will be able to allege discrimination even if there are no grounds for believing that that is the case. But we have heard two very distinguished legal authorities, the noble and learned Lord, Lord Elwyn-Jones, this afternoon, and the noble Viscount, Lord Colville, at Report stage, saying that they believe that these cases would be rare and that evidence would have to be adduced sufficient to enable the courts to take into consideration such an application.

I make the point in passing that, if a person were to seek to go to the courts on legal aid to challenge the Secretary of State's discretion in a matter of this kind, he would presumably have to obtain an opinion of learned counsel that there were sufficient grounds for doing so and this would not be given lightly. So I think that the picture that was given by the Minister, of many people frivolously taking cases to the courts on alleged grounds of discrimination, is a false one and should not be allowed to remain in the minds of your Lordships when we come to make a decision on this matter.

Secondly, I quite agree with the noble and learned Lord, Lord Elwyn-Jones, that, if we had to consider only the attitude of the present Secretary of State, there would be no grounds for anxiety. But we are not legislating in this Bill only for future Secretaries of State. In this clause, we are also dealing with discretions which are exercised by governors or lieutenant-governors and I suggest that we really need some restriction on an unfettered right of discretion, which may be exercised by dozens of people of varying merit across the world. No doubt, most of the governors or lieutenant-governors who are appointed to these eminent positions are persons of the highest possible character, who would not dream of discriminating against an applicant on these grounds, but the possibility must be entertained that they might do so and the person concerned should have some remedy.

The noble Lord said that people already have a remedy; they can take their case to an MP or to a Peer who will, no doubt, raise it with the Home Office Minister. But do we need subsection (1) to enable the MP or the Peer to do that? Would they not find it part of their duty, whether or not such a clause was in the Bill, and does not the existence of subsection (1) imply something additional to the normal procedures which are adopted by Members of both Houses, in the case of complaints made to them by constituents or by any citizens?

The noble Lord said that the Parliamentary Commissioner for Administration would be entitled to take into consideration an allegation of discrimination on grounds of race, colour or religion. Would the Parliamentary Commissioner have information available to him which is not granted to the courts? The noble Lord said that he does not think it would be sensible for the courts to have to look at information regarding character, and certainly not security. But are there not procedures in the courts which would enable sensitive information of this nature to be taken into consideration without its being given in public?

There was the recent case of Williams v. Home Office, where documents were disclosed to the courts and, for reasons of which your Lordships are aware, one of the solicitors acting in that case divulged those documents to a newspaper and was very heavily criticised for having done so. Therefore, do the courts not have sufficient protection, if information of this character is given to them, to prevent it from reaching newspapers or the general public, if the Secretary of State thinks that it is information of a nature which should not be divulged? No, my Lords, these are matters of very great importance and principle, and I think that, if the reassurance which the honourable gentleman, Mr. Timothy Raison said was provided in subsection (1) is to mean anything, it must be qualified in this way. I hope your Lordships will agree to retain the words which your Lordships put in so recently and which we have heard no reasons for taking out this afternoon.

4.40 p.m.

Lord Gifford

My Lords, I wish to add to the debate only my feeling that the Government in their opposition to the amendment which we passed have lost all touch with reality. If the amendment which we passed can stay in this Bill, there really will not be any kind of embarrassment for Governments by claims being brought which have no merit in them. It is possible at the moment to bring an action against a Minister who has made a discretionary decision and it is possible to bring it if that decision has been made on discriminatory grounds in most areas of the law, but it is very, very difficult indeed to obtain proof or to mount such an action unless there are very solid grounds for the allegations which are being made.

You do not even get over the first hurdle if you simply come to court crying "racial discrimination". If you go for a declaration, you will have to give particulars of the facts which you rely on in support of your allegations. If not, you will be struck out. If you go for a judicial review, you have to put in your affidavit the basis of your claim. If there is no basis, you will not get leave from the court to bring the action. Therefore, the only actions which could be brought against an allegedly discriminatory exercise of a Government's or Minister's discretion are those which can be shown to have a prima facie foundation. Whether it is private money or legal aid money, no such action would be brought unless the advisers had the material upon which to make at least a prima facie case.

So there is no cause for alarm. The cause for alarm is the other way round: that if in the very rare case a prima facie case could be brought, the bitterness that would be felt by the person concerned and the whole of the minority community involved if action to the court were excluded would be intense and would be a mockery of the proud declaration that is in the first subsection of this clause.

The Lord Bishop of Rochester

My Lords, as one who spoke in support of the noble and learned Lord when he moved this amendment and as five Members of these Benches voted with the majority of this House in passing it. I must express my own regret that the Government are unwilling to sustain the decision of this House or to do what they have done in one or two other instances: to provide alternative amendments to meet the concern which has been expressed here.

We on these Benches supported this amendment because of our continuing concern throughout all the discussions about the anxieties and uncertainties which the Bill has caused among certain groups of our fellow citizens. We believe that this amendment would do much to reassure many of them that there would be a right of appeal on grounds of race, colour and religion. I feel that this amendment is still important. For that reason, I feel bound to join with those who wish to see it retained.

Baroness Trumpington

My Lords, I have done much heart-searching over this amendment, partly because it is natural to uphold the rights of people to appeal against a decision affecting them and partly because, as always, the noble and learned Lord, Lord Elwyn-Jones, has a magical and eloquent way of advancing his arguments—also because I hate having constantly to stand up and talk against the Lord Bishops. But speak against them I shall.

I have been struck by the seriousness of the remarks of my noble friend the Minister, and in supporting and I fear repeating a few of his words I am merely stating my reason for disagreeing with this amendment, for practical and security reasons. Both of the last speakers referred to the meaning of Clause 1 without Clause 2. Surely Clause 1 concerns the procedures leading up to the reaching of a decision whether to grant citizenship while Clause 2 consists of a challenge to that decision.

If somebody said that the Home Secretary had discriminated against him on grounds of colour, race or religion, the obvious reaction of the court would be to ask why he had been refused. In some cases it might of course he possible to give the reasons. In others it would surely be most inadvisable. I for one am not so naive as to believe that a person of bad character would be deterred by a refusal to grant him British nationality. I would argue that the more devious a person is the more plausible would be the case he would bring before any possible appeals court.

Then again, unless all those persons, be they judges or laymen, who might serve on the courts were required to sign the Official Secrets Act—and even then a slip of the tongue in public is certainly not unknown to me—the work of the Home Office could be greatly hindered, and unless those courts were in possession of classified information they would in certain cases be powerless and useless.

Persons who feel aggrieved by the Home Secretary's decision against their becoming British citizens by naturalisation have, as my noble friend the Minister said, the right to appeal to Members of Parliament. Indeed, they do so now. If there is a question of maladministration, a case can of course be brought for investigation by the Parliamentary Commissioner for Administration—in other words, the ombudsman. In either case publicity would arise out of people bringing their cases to those persons. So it would not be unknown for a person's case to be argued in private. Therefore, the avenues of appeal are not closed. Furthermore, in immigration matters there are extensive appeal rights and these, too, are often complemented by the large numbers of those who appeal to Ministers and to Members of Parliament.

Finally, if your Lordships did accept this amendment it would not enlarge the grounds of appeal. It will not enable any dissatisfied applicant to appeal against the decision because, unless the statute requires that the Minister states his reasons and goes on to say that those reasons will automatically be the subject of judicial review, there is nothing in the amendment that extends the grounds of appeal. I therefore earnestly hope that your Lordships will support the Government and will, if the House divides, vote against this amendment.

Lord Wigoder

My Lords, may I suggest that the reasons given by the other place make very odd reading when set alongside the argument put forward by the noble Lord the Minister this afternoon? The other place put as their case against the amendment which your Lordships approved that discretionary decisions should not be subject to review in the courts. The argument of the noble Lord, Lord Belstead, this afternoon is that that is of no consequence because a discretionary decision under the Acts can be reviewed by the Parliamentary Commissioner.

Might I ask the noble Lord what it is that the Parliamentary Commissioner has which the courts have not? Why is the Parliamentary Commissioner regarded as a superior tribunal for investigating these matters compared with Her Majesty's judges sitting in camera? I suspect that there is very little answer to that question. The real answer is one which the noble Lord, Lord Belstead, might be a little reluctant to give, and it is this. He knows, I would suspect, perfectly well that under this section if your Lordships' amendment were removed there would, for practical purposes, be no right whatever of appeal to the Parliamentary Commissioner.

The reason for that is very simple. Throughout this Bill there is no obligation upon the Secretary of State, or a governor, or a lieutenant governor to give any reasons for any decision. And if there is no obligation to give such reasons, there is no way in which an aggrieved person could get an application on its feet in front of the Parliamentary Commissioner. He would turn down every application out of hand. I venture to suggest that talk about that alternative remedy is really talk about a subject which one appreciates would be totally ineffective.

The other alternative remedy the noble Lord puts forward is to say, "Well, of course, an aggrieved person can always go to his Member of Parliament". So he can; but it does rather postulate—does it not?—the existence of 650 Members of another place all passionately concerned with the rights of people aggrieved under this Bill. I think that is perhaps a trifle fanciful in the world of reality. I would suggest that without this amendment there is really no alternative and that this amendment is the only way of making enforceable Clause 43(1). Unless we insist on this amendment, Clause 43(1) will be nothing but a pious platitude; it would be totally unenforceable and ought to have no place whatever in any Act of Parliament.

4.51 p.m.

Lord Pitt of Hampstead

My Lords, I ought to be in Antigua at the moment, but when I discovered what the other place had done, I thought my place should be here. Whatever may have been the Government's intention, the effect of this Bill will be discriminatory. There are three types of citizenship, of which only one carries the right of abode in any territory; that is British citizenship, which carries the right of abode in the United Kingdom. British dependent territory citizenship does not carry the right of abode in any territory; that right will depend on the immigration laws in that territory. British overseas citizenship carries no right of abode anywhere and is hardly what one would rightly call citizenship. The vast majority of the people who become British citizens will be white. Some of them will be people who do not live in this country, have never lived here and have no intention of living here. The vast majority of people with the two other citizenships will be black or brown. The Government claim that they are guided by the question of close connection with this country. It is right that a connection by descent should be regarded as a form of close connection, but it is wrong that an ancestral connection should be regarded as having a stronger claim than other kinds of close connection, which is really what is done in this Bill.

The abolition of jus soli and its replacement by a requirement that the person should have a parent who is a British citizen or settled in the United Kingdom will cause uncertainty among the black community, because they know that when they apply for a passport they will need to show that their parents were settled here when they were born or that they had registered as British citizens. And they also know from experience that they will be subjected to very strict examination before their right is conceded. The Home Secretary has discretion to register minors, reduce the period required for qualification or extend the period allowed for application for registration within certain limits, register women who are widowed or divorced, allow a person to renounce citizenship or to claim it again. He also has the power to deprive them of citizenship. Except for the deprivation, the Home Secretary need give no reason for any of his decisions. His discretion, his decision, shall not be subject to appeal to or review in any court. That is Clause 43(2). Commonwealth citizens who previously had, and some of whom still have, the right to register as British citizens will, after a period, lose that right. We lost that battle. They will need to apply for naturalisation. Naturalisation can be granted or rejected by the Home Secretary, without any right of appeal.

My Lords, I will confess that one of the reasons why I fought so hard to get safeguarded the youngsters' entitlement to registration is that some black youngsters have been convicted of being suspected persons, and there was always the danger of their being regarded as not having a good character when they applied for naturalisation. Your Lordships will appreciate what impact that would have. It was a serious matter, even though, as your Lordships know, people convicted of sus need not have committed any crime and may never have committed any crime. I was thinking not only of youngsters who would have no difficulty in regard to naturalisation: I was also thinking of those for whom there could be this handicap.

This is how the black community saw this Bill. Then we had the declaration in what is now Clause 43(1), which stated that the discretion shall be exercised without regard to the race, colour or religion of persons who may be affected by its exercise. That seemed to indicate that the Government were prepared to reassure the black community of their intentions, and we were all grateful. Then, in this House, we made that declaration meaningful by tying subsection (1) to subsection (2) and making subsection (2) subject to subsection (1). As I saw it, that meant—and my noble friend Lord Gifford has confirmed me in my point of view, because I am not a lawyer—that if someone felt that refusal of naturalisation was due to his race, colour or religion he could appeal to the court. Again, as I see it, he will have to prove the fact or establish a prima facie case before the Home Secretary will be called upon to answer. What he will have is the right to appeal to the court if he has evidence to suggest that he was discriminated against on grounds of race, colour or religion. I have never thought that anyone could sustain an appeal merely by saying "I am black". He would have to show that his race, colour or religion were the main ground or the only ground on which his naturalisation was refused.

I hope your Lordships will insist on retaining this amendment, because whatever good the Government did by inserting subsection (1) into the Bill, they are busily undermining it by their rejection of our amendment, because all they are doing is restoring all the fears that existed. In fact, it is worse than that. If we accept the decision of the Commons, the black community will believe that the Government intend the Home Secretary to be free to discriminate. That is what they will believe. I hope the Government understand what that would mean. Under the Immigration Act 1976 discrimination on grounds of race or colour is illegal already. The Government may well find themselves having to defend themselves before the courts under that Act, and may well discover that they have stirred up a hornet's nest by their refusal to accept this amendment.

I hope the Home Office is not unaware of its present problem with the Commission for Racial Equality over the alleged practice of racial discrimination in the immigration service. I can assure your Lordships that if the Government persist in their attitude there will be lots of challenges of that sort, because in effect the black community will be convinced that the reason why the Government and Parliament will not accept this amendment is because Parliament intends to agree that the Home Secretary should discriminate. They will therefore have to take appropriate action. Our amendment is of great value to the community, but it is also of great value to the Home Secretary, and I hope the Home Secretary and his advisers will understand that. My Lords, I implore you to stand firm.

5 p.m.

Viscount Colville of Culross

My Lords, I hope the noble Lord, Lord Pitt, will forgive me if I do not follow him down those somewhat broad paths although I know he speaks with the utmost sincerity and conviction upon this matter. I should like to address the House for a moment because both my voice and my vote have been quoted on the Committee stage and I think I should explain why I am not going to be able to support my noble friends on the Front Bench this evening, although in fact I shall go away.

When I supported the noble and learned Lord and his amendment at the Committee stage the House will remember that, both then and on Report, I had tabled further amendments which were attempting to deal with the whole range of appealability of discretionary decisions by the Home Secretary and by the equivalent authorities in the islands and the dependent territories. I had hoped that the amendment we are now discussing was going to be the first in a series of amendments that would open up for the first time these discretionary decisions to some sort of appropriate type of appeal. It turned out that I was wrong because your Lordships rejected what I still maintain—and I am glad that the noble and learned Lord, Lord Elwyn-Jones, has said so again—was a modest compromise provision which I introduced at the Report stage.

Several Noble Lords: Hear, hear!

Viscount Colville of Culross

My Lords, I am bitterly sorry that my noble friends on the Front Bench have not taken this opportunity of making appealable one area of government out of a very large number—one area of government which is comparatively isolated in being now still without any remedy in any form of court or tribunal against the whole tendency of legislative practice over the past 20 or 30 years. But I have one very considerable reservation about leaving this amendment in the Bill, and this alone.

I am interested to hear that my noble friend Lord Belstead is so sure that the way in which the courts would interpret Clause 43 (as it is for these purposes, with the amendment in it) is to provide the courts with the ability to look at cases where there was evidence of discrimination, and I am delighted to know that the Government are so sure that they know the way in which the courts are going to interpret this Bill. I believe I am not alone in your Lordships' House in thinking that there is by no means that clarity about the way in which the courts are going to interpret this provision—and indeed the provisions about the entitlement parts of the Home Secretary's jurisdiction.

If my noble friend is right, and that with this amendment the courts are to be able to review cases of discrimination, then I should have thought that it was almost inevitable that they would have to decide that even if the Secretary of State had acted in total excess of his jurisdiction, the ouster clause, as it would then stand, would make it quite impossible for him to look at any of the other reasons for the failure to grant a naturalisation on some grounds, such as residence or one of the factual matters that I raised in my amendment. I think that would be a mistake.

If we are going to leave this without any very evident jurisdiction for the courts to look at discretionary matters, let us leave it at large. Do not let us provide the courts with one method of review on a narrow ground (important though that may be) if, by doing so, we then remove from them any possibility of interpreting the Bill (difficult though it might be) so that they could also review the discretionary decision on other grounds as well. For the purposes of creating a muddle I would rather leave this amendment out so that the courts may look at the Bill without being directed in this direction on discrimination and against any power to look at the other reasons which went into a discretionary decision. Therefore I would prefer not to support directly my noble friends on this. With respect to them, I do not think that they have properly clarified what the courts are going to do, or should do, and what Parliament intended the courts to do.

I leave the subject with this: If subsection (1) is to mean anything at all it would have to be given some effect; if it is to be given some effect then the only effect that it can possibly be given by way of law—and it is part of the law—is to suggest that there may be some remedy in the courts, and if there is a suggestion that there may be some remedy in the courts because of that and upon those grounds, then there may be a broader remedy also. For those reasons I should prefer not to pinpoint the discrimination grounds as being the only ones upon which the court may intervene. I therefore find myself in a position in which I am bound to abstain.

5.6 p.m.

Lord Mishcon

My Lords, the House always has the greatest admiration for the speeches of the noble Viscount who has just sat down, not only because he has such a clear way of expressing his views but also (if I may say this as a humble colleague) of the way in which his expertise in the law is provided for the benefit of this House. Therefore, I find myself in difficulty in saying, in regard to the speech that he has just made, that for this House, with all its responsibility, to be invited to object to the amendment of my noble and learned friend, purely on the grounds presumably that the courts will not know which way to turn when it comes to the courts being asked to consider the provisions of this Bill, leaves me with the feeling that that is a view that will not find favour in this revising Chamber.

There is not the slightest doubt; there is the utmost confusion on the Government Benches as well here as in another place. Perhaps I may remind your Lordships in regard to this very serious matter what happened at the Committee stage in this House. There was a question put with his usual directness by the noble Lord, Lord Boyd-Carpenter. In a very brief intervention, he asked this question: Is it clear beyond peradventure that some person who, rightly or wrongly, has had the Home Secretary's discretion exercised against an application of his and who alleges that there is here an element of discrimination on grounds of colour, race Or religion, could take this appeal to the court?"—(Official Report, 28/7/81; col. 696.) There could not be a clearer question and it appears in the report of the Committee stage of this Bill in this House. Answering for the Government the noble and learned Lord the Lord Advocate answered in this way: My answer to that is that to some extent it must depend upon the circumstances. But in an application to the court to have the question determined, I should expect it to be argued in court that the protection afforded by the latter part of Clause 43(2) cannot apply to prevent review where it is suggested that the discretion which has been exercised is not a discretion which the Bill contemplates but something completely different. In other words, the noble and learned Lord the Lord Advocate was saying that he felt that such a review by the courts was by no means barred in a case where the applicant was saying that, indeed, he had been discriminated against on the ground of race, religion, or colour.

When this matter came before another place—and I am looking now at col. 788 of the House of Commons Official Report of 27th October—the Minister, the right honourable gentleman Mr. Raison, said: I am afraid that the amendment would still remain unacceptable to us. As I understand it, the intention, if not the effect, of the amendment is to ensure that an applicant who believes that he has been discriminated against on grounds of race, colour or religion, should not be barred from taking the matter up with the courts by the general bar on access to the courts in discretionary cases set out in Clause 43(2). But such a provision would, in our view, have serious drawbacks. It would mean that everyone whose application is refused would be able to challenge the Secretary of State's decision in the courts merely by alleging that he had been discriminated against on grounds of race, colour or religion ". The two interpretations of the Bill as unamended by your Lordships' House are completely and absolutely different from the respective Front Benches in this House and in another place. Dare we leave this to the remarks of learned judges that Parliament, in the exercise of its wisdom in two Houses, has left this Bill in a state where one cannot even get help, as those who are advocating certain revisions of the interpretation of our laws have asked for, by looking at the Official Reports of this House and of another place when the Bill in question was being debated? If I may say so, we would leave ourselves in a position of ridicule at the hands of the Judiciary because we, as a legislature, have been lazy, indolent or muddle-minded.

I know that the noble Baroness, Lady Trumpington, will forgive me if I look at her for one moment with eyes of admiration as always, and say that she really must fall under the spell of my noble and learned friend, because on the last occasion he spoke last in this matter and she thereupon followed him into the Division Lobby and supported him on precisely this amendment.

Baroness Trumpington

My Lords, I think that I might be allowed to reply on that point. I did begin by saying that I had thought long and hard about this whole matter. I think that that maybe explains the line that I have taken today. I should like to ask the noble Lord whether I am right in thinking that there is no right of appeal at the moment. Can the noble Lord answer that point before he sits down?

Lord Mishcon

My Lords, I do not want to continue a debate with the noble Baroness. I merely say that I thought she saw the light on the road to Damascus last time; I think that she may have been blinded on another road on this occasion.

I want to end upon the following note. Not only, as I have said, would we be throwing confusion and, if I may say so, indignity into our deliberations if this amendment were not, in fact, supported once again by this House, but—and this is my plea to the House—we would be doing something serious to damage the image that we managed to get on the last occasion by saying to those who have alleged, rightly or wrongly, that this Bill is discriminatory from a racial point of view, that that is not so; that "The Lords in its wisdom put a right of appeal there where anything was being done which in your view was contrary to your interests in regard to nationality and citizenship, where you could properly allege and substantiate a case in the courts on the ground that you had been discriminated against on race, religion or colour". We have an opportunity of restoring confidence. Do not let us lose it by cowardice or mere party allegiance.

The Duke of Norfolk

My Lords, I did not intend to speak, but I now find myself impelled to do so because there is great feeling among the Roman Catholic community about this matter. I should like to say very simply and with great respect to the noble and learned Lord and also to the noble Lord who spoke for the Liberals, that I see this as quite a simple problem. Subsection (1) says that there shall be no discrimination on grounds of race, colour or religion. That is a fact and it is laid down. The noble Lord, Lord Pitt of Hampstead, who is my great friend and a fellow Roman Catholic, has said that, if we do not agree to this amendment to Clause 43(2), we are allowing discrimination to take place. We are not. When the Secretary of State or a Governor applies this law he must be bound by subsection (1). All that I am doing if I support the Government—which I shall do—is saying, "I trust the Government, the Secretary of State, to abide by subsection (1) and I do not need to have the additional check that there can be an appeal in the courts about it". The Government do not wish to have endless appeals in the courts because of the general implementation of all these matters. But in no way by going into the Lobby on behalf of the Government (if there is a Division) am I believing that there is any intention on the part of the Government to discriminate because this amendment is not inserted in subsection (2). I hope that my noble friend Lord Belstead will spell this out when he replies. I think that it is quite extraordinary that the noble Lord should be twisting it in this way.

Lord Elwyn-Jones

My Lords, did not the noble Duke support the amendment in July when all these matters were canvassed and considered?

The Duke of Norfolk

That is absolutely true, my Lords, I did, as the noble and learned Lord has said, do that in July. However, now it has been back to the other place and I see from what the Minister said there—and he was quoted by the noble Lord, Lord Mishcon—that there are reasons that would mean that the whole matter would be opened up over and over again. I am prepared to trust the Secretary of State to administer the law of the land—Clause 43(1)—without having to have an appeal to the courts. If there is any question that the situation could go badly wrong, then we could always look at it again in this free country of ours.

5.19 p.m.

Lord Salmon

My Lords, I had no intention to speak at all. However, it seems to me that Clause 43(1) states that discretion is vested in the Secretary of State so that he may exercise it against an applicant; but cannot do so on account of applicants' race, colour or religion. Why are those latter words put there? Obviously we all know that the present Secretary of State would never exercise his discretion with prejudice to race, colour or religion. But Parliament, when it passed subsection (1) must have foreseen that, human nature being what it is, it is possible that at some time in the future a Secretary of State may well, unless he is forbidden by the Act to do so, allow himself to exercise his discretion because of the race, colour and religion of the person who is applying for naturalisation.

The last three lines of subsection (2) say: … the decision of the Secretary of State … on any such application shall not be subject to appeal, or review in, any court". This seems to me to be absurd. I cannot understand that in effect to knock out those words can do any harm at all. Nobody can appeal against or ask a court to review the way in which the discretion has been exercised. All that any man or woman could do is to bring substantial evidence before the court that the then Secretary of State, in action that he has taken, relied on his dislike of the race, colour or religion of the applicant. Unless the applicant has strong evidence, he would never have a chance of appealing or of getting a review in court. If he came to the court without strong evidence, the court would tell him to go away in no uncertain manner.

One day we may have a Secretary of State who is prejudiced and who accordingly refuses the applicant because of his colour, race or religion. It seems to me however that if the applicant had no strong evidence of the Home Secretary's prejudice the court would rightly throw out the applicant, without any loss in doing so. When an Act gives power—and this very strong power—to a Minister who abuses it, the court will support the appellant; and this has generally occurred during the last 20 or 30 years. If what I have suggested is correct, can we be doing any harm by eliminating the last three lines in subsection (2)? To my mind it would be a very sound thing to do.

Lord Elwyn-Jones

My Lords, I wonder whether the noble and learned Lord would give way for one moment. I do not think that the House now has power to make any further amendments to the Bill. We are confined to discussing the precise question of whether the previous Lords amendment should stay, and, I fear, nothing else.

Lord Salmon

My Lords, I am perfectly prepared to put it that way, but it is not so easy. It seems to me shocking that a Bill should be passed in this way so that, however unfair a Secretary of State might be and however prejudiced he might be against the applicant, the applicant has to put up with it and the Secretary of State can do what he likes. It seems to me quite monstrous that if the applicant can bring strong evidence to show that the Minister has acted entirely on his dislike of the applicant's race, colour or religion and has therefore refused the application and the Minister has dismissed the applicant's appeal, this would be a shocking and most serious denial of justice.

Lord Belstead

My Lords, as I sought to make clear at the beginning of this afternoon's debate, the Government would be very concerned if your Lordships insisted on Amendment No. 118. I think that it is fair to claim, at the end of what must have seemed to many of your Lordships immensely long proceedings on this very lengthy Bill, that my right honourable friend has shown an open mind on the many amendments which your Lordships' House has proposed over the last three months or so. Indeed, noble Lords have been most generous—not least the noble and learned Lord, Lord Elwyn-Jones in recognising, that constructive attitude of my right honourable friend the Home Secretary.

Therefore, before this afternoon's debate your Lordships must have wondered why it is that the Government have felt unable to accept this amendment. The reasons are straightforward and they are simple. The provision that discretionary decisions in this Bill should be exercised without regard to race, colour or religion was put into the Bill in Committee in another place by the Government, incidentally supported by the votes of the Opposition in that Committee.

Lord Mishcon

Of course, my Lords.

Lord Belstead

My Lords, on that occasion it was explained quite clearly, so that there was no misunderstanding, that this Bill was meant to be simply a declaration, but a declaration which would have very great advantages.

First and foremost—and I say this particularly to my noble friend the Duke of Norfolk, who I felt wanted the advantages spelt out by the Government—this declaration would give to those people coming to this country a symbol of reassurance, and it would remind all of us of the innate sense of fairness, which I hope that our country will always retain. My honourable friend the Minister of State, Mr. Raison, gave an assurance on that occasion that this statement would be embodied in the instructions which were given to officials handling cases in the Home Office. The declaration would be a signpost which would guide both the Parliamentary Commissioner, when he might inquire into cases, and Members of both Houses when they take up cases; of course, if either the Ombudsman or a Member of either House were to be concerned and it became evident that a decision had been taken contrary to this declaration, the matter would, of course, be pursued on behalf of the applicant.

The noble Lord, Lord Wigoder, asked why the Parliamentary Commissioner was better in these particular circumstances than a court of law. It is because the Parliamentary Commissioner is the servant of Parliament. He would have access—as, indeed, he showed not all that long ago in a naturalisation case—to the Home Secretary's reasons and be able to delve, but in a way which would avoid undesirable public disclosure. This is not, so I understand, to say that our law is so inflexible—which is the impression I rather have this afternoon speaking as a layman—that if a decision is blatantly discriminatory it cannot be reviewed by the court. I understand—

Lord Avebury

My Lords, may I—

Lord Belstead

I think I have listened long this afternoon. Let me give way in a moment. This is not to say that if a decision was blatantly discriminatory it could not be reviewed by the court, and I understand there are precedents for this. But this is different from Lord Elwyn-Jones's amendment, which seems to envisage applicants being able to take allegations which could be wholly unsubstantiated to the courts in the hope that in what could be very sensitive security cases, or character cases, all the reasons would be reviewed.

Lord Avebury

My Lords, the noble Lord again refers to the role of the Parliamentary Commissioner. Does he mean that in spite of the fact that Clause 43(2) says: The Secretary of State … shall not be required to assign any reason for the grant or refusal of any application …". that nevertheless, when the Parliamentary Commissioner looks into a complaint, that the Secretary of State will in fact give him the reasons for any refusal notwithstanding the provisions of Clause 43(2)?

Lord Belstead

My Lords, I would have thought that the noble Lord, who takes such an interest in these matters, would have noticed the last case in which the Parliamentary Commissioner looked precisely into a naturalisation case. The Parliamentary Commissioner in that particular case made it quite clear that the reasons of the Home Office had been explained to him, and in the light of that report and other evidence available to the Home Office the Parliamentary Commissioner said, "I consider that they were reasons which the Home Office was entitled to take into account". I think that that is an effective remedy, but it is an effective remedy because we have the ombudsman and because he is a servant of Parliament.

I was also interested in the intervention of my noble friend Lord Colville. My noble friend, with characteristic honesty, resiled in no way from the consistent and honourable position which he has taken up throughout this Bill in favour of appeals generally. Indeed, we have gone some way, I like to think, to try to meet the points my noble friend has clearly made. But this afternoon, as I understood my noble friend, he argued that by pinpointing discrimination in this particular way under this amendment the courts would be inhibited possibly from looking at other cases. That may, or may not be. As a mere layman I certainly do not know. All I can do is listen to my noble friend. All I can do is to read the proceedings which went on in another place. There I noticed that the right honourable gentleman, Mr. Peter Archer, a former law officer, delivered himself of the view that the courts would be able to go into the real reasons for refusals in discretionary cases, but it might be necessary to hear them in camera.

Another distinguished lawyer, Mr. Greville Janner, from the Opposition Benches, simply welcomed the prospect of the courts being able to review real reasons for decisions without making any mention at all of them being in camera, if Lord Elwyn-Jones's amendment was to stay. Finally, the honourable gentleman, Mr. Douglas Hogg, delivered himself of the view that Lord Elwyn-Jones's amendment would not have any effect at all. If the noble and learned Lord will forgive me saying so, the effect of this particular amendment is obscure, but we believe on the Government Front Bench that the effect will be that it could be very damaging so far as naturalisation cases are concerned.

If I may, I shall finish by explaining why. The question of whether discretionary decisions in this Bill should be subject to appeal is a matter which was debated and decided in another place, and then was debated twice by your Lordships' House, both times on amendments moved by my noble friend Lord Colville. On the second occasion your Lordships decided that it would not be wise to make discretionary cases appealable. The reason for your Lordships' decision lay in the nature of naturalisation.

Throughout our proceedings on this Bill your Lordships have shown great concern about the rights of people to have their cases heard by the courts, and the Government really have done their best to respond. Through amendments which we have made on report we have made it as clear as we possibly can that where a person claims an entitlement under this Bill that claim should be reviewed by a court. We cut out references to the Secretary of State being satisfied, and we put in subsection (3) of this clause which says: Nothing in this section affects the jurisdiction of any court to entertain proceedings of any description concerning the rights of any person under any provision of this Act". But when we came to naturalisation your Lordships agreed that the traditional practice of the Home Secretary having to be ultimately responsible was the right one in the national interest.

Having listened to your Lordships' debates, I realise that this is not the way that some people would have it. The noble Lord, Lord Avebury, has consistently made clear his wish to have objective criteria which would be fought out in court: not a thing which has been done in this country for 140 years so far as naturalisation is concerned. In another place the right honourable gentleman, Mr. Hattersley, put it even more starkly. The new Nationality Act which must be introduced in the future, the right honourable gentleman said, in another place on Tuesday, must include an appeals system preceded by an explanation of why an application has been refused". That expression of view, and this amendment, would lead directly towards that result in naturalisation cases.

My right honourable friend has given an assurance in another place that wherever possible reasons will be given if naturalisation has to be refused, not least to help an applicant who may have a second and a successful opportunity to apply, but to open up all naturalisation cases, including character and security cases, to judicial review I think would be absolutely disastrous. This could well be the consequence of this amendment, for on an allegation that a decision had been taken by discriminating on grounds of race, colour or religion, all the circumstances could have to be argued in open court. Surely that cannot be the intention of the noble and learned Lord, Lord Elwyn-Jones, but it could be the effect of this amendment. I ask your Lordships to beware of going down this road, and on this occasion not to insist on this amendment.

5.39 p.m.

On Question, Whether this House doth not insist on their Amendment No. 118 to which the Commons have disagreed for Reason numbered 119?

Their Lordships divided: Contents, 116; Not-Contents, 96.

Adeane, L. Greenway, L.
Airey of Abingdon, B. Gridley, L.
Allen of Abbeydale, L. Grimston of Westbury, L.
Avon, E. Hailsham of Saint Marylebone, L.
Bagot, L.
Bellhaven and Stenton, L. Hankey, L.
Bellwin, L. Henley, L.
Beloff, L. Hives, L.
Belstead, L. Holderness, L.
Bessborough, E. Hunt of Fawley, L.
Boardman, L. Hunt of Tanworth, L.
Boothby, L. Hylton-Foster, B.
Boyd-Carpenter, L. Lane-Fox, B.
Brabazon of Tara, L. Lauderdale, E.
Brougham and Vaux, L. Linlithgow, M.
Brownlow, L. Long, V.
Campbell of Alloway, L. Loudoun, C.
Cathcart, E Lucas of Chilworth, L.
Cockfield, L. Lyell, L.
Coleraine, L. McFadzean, L.
Colwyn, L. Mackay of Clashfern, L.
Constantine of Stanmore, L. Mancroft, L.
Cork and Orrery, E. Marley, L.
Cottesloe, L. Monk Bretton, L.
Craigmyle, L. Mottistone, L.
Crathorne, L. Mowbray and Stourton, L.
Cullen of Ashbourne, L. Murton of Lindisfarne, L.
Dacre of Glanton, L. Norfolk, D.
Daventry, V. Northchurch, B.
Davidson, V. Norwich, Bp.
Denham, L. [Teller] Nunburnholme, L.
Drumalbyn, L. Onslow, E.
Duncan-Sandys, L. Orkney, E.
Ebbisham, L. Pender, L.
Eccles, V. Platt of Writtle, B.
Elton, L. Portland, D.
Faithfull, B. Rankeillour, L.
Ferrers, E. Rawlinson of Ewell, L.
Foley, L. Reigate, L.
Fortescue, E. Renton, L.
Fraser of Kilmorack, L. Richardson, L.
Geddes, L. Rochdale, V.
Gisborough, L. Rosslyn, E.
Glenkinglas, L. Rugby, L.
Gormanston, V. St. Aldwyn, E.
Saint Brides, L. Taylor, L.
Sandys, L. [Teller.] Terrington, L.
Seebohm, L. Teviot, L.
Sempill, Ly. Thomas of Swynnerton, L.
Sherfield, L. Thorneycroft, L.
Skelmersdale, L. Trefgarne, L.
Southwell, Bp. Trenchard, V.
Spens, L. Trumpington, B.
Stamp, L. Vaux of Harrowden, L.
Stanley of Alderley, L. Vivian, L.
Stradbroke, E. Wakefield of Kendal, L.
Strathspey, L. Willoughby de Broke, L.
Swansea, L. Young, B.
Swinfen, L.
Airedale, L. Jacques, L.
Amherst, E. Jeger, B.
Ardwick, L. Jenkins of Putney, L.
Avebury, L. John-Mackie, L.
Aylestone, L. Kaldor, L.
Balogh, L. Kennet, L.
Banks, L. Kilmarnock, L.
Barrington, V. Lawrence, L.
Bernstein, L. Leatherland, L.
Beswick, L. Listowel, E.
Birk, B. Lloyd of Hampstead, L.
Bishopston, L. McNair, L.
Blease, L. Mayhew, L.
Blyton, L. Mersey, V.
Brockway, L. Milner of Leeds L.
Bruce of Donington, L. Mishcon, L.
Byers, L. Molloy L.
Carlisle, Bp. Morris L.
Chitnis, L. Mountevans L.
Cledwyn of Penrhos, L. Oram L.
Collison, L. Pargiter L.
Cooper of Stockton Heath, L. Peart L.
Craigavon, V. Phillips, B.
Crowther-Hunt, L. Pitt of Hampstead, L.
Cudlipp L. Ponsonby of Shulbrede, L. [Teller.]
David, B. [Teller.]
Davies of Leek, L. Rochester, Bp.
Davies of Penrhys, L. Rochester, L.
Denington, B. Salmon, L.
Donaldson of Kingsbridge, L. Shinwell, L.
Eldon, E. Stewart of Alvechurch, B.
Elwyn-Jones, L. Stewart of Fulham, L.
Ewart-Biggs, B. Stone, L.
Foot, L. Strabolgi, L.
Gaitskell, B. Strauss, L.
Galpern, L. Taylor of Mansfield, L.
Gifford, L. Tordoff, L.
Gosford, E. Underhill, L.
Gregson, L. Wallace of Coslany, L.
Grey, E. Walston, L.
Hale, L. Wells-Pestell, L.
Hall, V. Whaddon, L.
Hayter, L. Wigoder, L.
Hirshfield, L. Willis, L.
Houghton of Sowerby, L. Wilson of Radcliffe, L.
Howie of Troon, L. Winstanley, L.
Hutchinson of Lullington, L. Wootton of Abinger, B.
Irving of Dartford, L. Wynne-Jones, L.
Jacobson, L.

Resolved in the affirmative, and Motion agreed to accordingly.

5.47 p.m.