Lords Sitting of 21 March 1988

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Manchester.

Inner London Youth Services: Funding
Lord Newall Lord Newall asked Her Majesty's Government:
What provision they intend to make for funding of the inner London voluntary youth service for 8 to 18 year-olds after 1990.
The Parliamentary Under-Secretary of State, Department of Education and Science (Baroness Hooper): My Lords, under the proposals announced by my right honourable friend the Secretary of State for Education and Science on 4th February, each of the inner London councils will become the local education authority for its area and will therefore be responsible for provision and funding of its local youth services.
Lord Newall: My Lords, I thank my noble friend for that Answer. Perhaps I may ask whether she is aware that there are 713 voluntary youth organisations in London and that when the boroughs take over responsibility for the running of these youth clubs they are bound to give them a low priority. That will mean thousands of young people being allowed to go on the streets and turning to crime.
Baroness Hooper: My Lords, I thank my noble friend for his supplementary question. I am not sure that I agree with the suggestion that this service will be given a low priority. The voluntary sector provides a very valuable and highly regarded service in this area. The Government believe that a continuing statutory—voluntary partnership in the delivery of the youth service within the boroughs will lead to good value for money. This partnership is well established
2
and there is every reason to believe that it will be maintained in inner London as in other parts of the country.
Baroness Seear: My Lords, does the noble Baroness agree that in many of the boroughs where the need for youth service is at its very greatest—for example, Brixton, Lambeth and Tower Hamlets—the financing of it will be an almost impossible burden for those boroughs?
Baroness Hooper: My Lords, in asking the boroughs of inner London to produce development plans for the whole of the education services, consideration will be given to the provision that they are suggesting in the youth service area. I am setting up arrangements for meetings with representatives of voluntary organisations to hear their ideas. It is still early days; but there will be full consultation and dialogue. The best possible arrangements will be made which may well include co-operation between two or more boroughs.
Lord Mellish: My Lords, while trying to understand the reasons for the Government abolishing ILEA, is the Minister aware that the average teacher in London, especially in the inner cities, is absolutely appalled at the thought that the administration of education is to be handed over to certain boroughs? The boroughs are not competent to run the disposal of rubbish. The Government cannot continue to talk in the way that they are at the moment. There will have to be some unitary authorities responsible for running the schools. It is madness to think that the boroughs can undertake the tasks that ILEA has been doing.
Baroness Hooper: My Lords, the noble Lord's question goes rather wide of the Question on the Order Paper. Nevertheless, to reassure the noble Lord, I would point out that the Secretary of State is going through a series of meetings with representatives of local boroughs as well as with representatives of ILEA. Guidance will be issued after Royal Assent. Development plans will have to be submitted by each local borough and vetted by the department. There is a special unit in the department to help and advise

3
boroughs that lack experience. These moves, together with the general reforms planned in the Education Reform Bill shortly to come before your Lordships, will lead, I believe, to finding a satisfactory solution.
Baroness Faithfull: My Lords, in the light of what my noble friend has said, can she give an assurance that there will not be a gap between the time that ILEA gives up and the local authorities take over when there is no money for the youth clubs and youth leaders? I regret to have to say that youth leaders are already leaving the London youth service because of the lack of security. Bearing in mind that a number of the clubs have children from different boroughs, will there be disagreement among the boroughs as to who should pay for the clubs?
Baroness Hooper: My Lords, the Government will be asking for development plans for each borough to be presented before the end of February of next year in relation to the provision for April 1990. We believe that in this way there will be plenty of time to cover any "gap period" to which my noble friend refers.
Lord Molloy: Is the noble Baroness aware that the voluntary service with which many of us have been concerned over the years has played a vital part in character-building among the young folk of Greater London? Because the Government wish to destroy ILEA, why should they wish equally to destroy something which is noted for character-building in this great city? Will the Minister be gracious enough to give the House the assurance that she will convey that information to the Secretary of State?
Baroness Hooper: My Lords, not only is the Secretary of State aware; we believe also that local councils are aware of the youth service machinery already in place in their areas. We believe that the voluntary sector, working with local councils, will be closer to the needs of communities and that there will be appreciation of the effective work undertaken by voluntary organisations in those communities. Furthermore, local communities will be able to bring pressure to bear on their local councils to sustain the work of voluntary organisations serving their needs which, as I have already said, perform an extremely valuable role.
Baroness David: My Lords, can the Minister tell us a little more about how it is expected that this service will be funded in 1990? At the moment the DoE has set GREA at £13·5 million for youth provision while ILEA has budgeted for £36·5 million, a great deal of which goes in grants to just those voluntary bodies that the noble Lord, Lord Newall, asked about, such as the London federation of youth clubs and the London adventure playground association. These could well collapse if that same grant is to be kept up. How will the funding be done?
Baroness Hooper: My Lords, the boroughs will need to review the organisation and cost of the youth service and the other services that they will be undertaking. The voluntary sector of the youth
4
service believes that it provides a good, cost-effective service to young people. We agree that individual organisations must ensure that all the facts about their achievements are well known to the boroughs. I believe that in many cases they are. They will be considering, as will the special unit within the department, how the department can best assist in ensuring that dialogue takes place and adequate provision results.
Baroness David: My Lords, the Minister has not replied to my question. Will there be a commitment from the Government that funds will be available for these extremely good clubs in 1990?
Baroness Hooper: My Lords, the Government will provide funding for the whole of the education service. We are taking every possible step to ensure that the youth service is included within the general arrangements and that it is not forgotten or left aside.
Viscount St. Davids: My Lords, is it not true that a vast majority of the boroughs in this country have never been under the control of ILEA or anything like that, but that they have always conducted their education and youth services extremely well?
Baroness Hooper: My Lords, the noble Viscount has raised an important point. We wish to emphasise the fact that we believe that the youth service in particular can be better handled at a more local level.
Lord Wallace of Coslany: My Lords, is the noble Baroness aware that the abolition of ILEA is very much involved in this Question? Is she further aware that I have recently received a letter from a former Conservative opponent asking me to do my best to assist the House of Lords to stop the Government going ahead?
Baroness Hooper: My Lords, that question is wide of the original Question, but I shall bear in mind the noble Lord's remarks.
Lord Cledwyn of Penrhos: My Lords, the noble Baroness has been helpful to the House—and perhaps the Government Chief Whip will be patient for a moment— in answering important questions about the service. However, a degree of confusion arises as a result of the exchanges and clarification is needed. The voluntary youth services are immensely important in the development of the life of London over the next few years. Will she ask her right honourable friend to consider publishing a White Paper as soon as possible giving details of the plans that the Government have in mind, and relating especially to funding?
Baroness Hooper: My Lords, in view of the time limits which are likely to be put upon us, and in view of the need to provide for the "gap period", to which my noble friend Lady Faithful referred, we believe that at this stage it is best to get on with matters. The consultation and dialogue will certainly continue and I believe that the noble Lord's point will be met by the issue of guidance, which it is intended to publish after Royal Assent.

Roman Londinium Amphitheatre
2.46 p.m.
Lord Blyth Lord Blyth asked Her Majesty's Government:
What steps they intend to take to preserve and ensure public access to the recently discovered remains of the Roman Londinium Amphitheatre.
Lord Hesketh: My Lords, I share the noble Lord's interest in the recent discovery. We understand that the City Corporation, together with English Heritage and the Museum of London, are considering options and we are monitoring the situation.
Lord Blyth: My Lords, I should like to thank the Minister for his reply. Can he expand on it a little and assure the House that the Government will monitor the proceedings and encourage the City Fathers as much as possible to open the site to the public?
Lord Hesketh: My Lords, the noble Lord will be aware that this is a recent discovery. Applications for planning permission, listed building consent and conservation area consent for the extension of the Guildhall and the demolition of one unlisted building are currently before my right honourable friend. I cannot at this stage comment on the merits of the case. However, English Heritage has advised that applications should be considered at a public inquiry and we are considering that recommendation.
Lord St. John of Fawsley: My Lords, is my noble friend aware that in response to strong representations from the Royal Fine Art Commission the City of London has promised to take the necessary measures to preserve these important remains temporarily? However, is not the present problem that of permanently preserving this unique piece of architecture for future generations?
Lord Hesketh: My Lords, I am well aware of the point raised by my noble friend. However, I should like to remind him that had it not been for the fact that the Guildhall Library was partially demolished by a German bomb this reconstruction would not have been anticipated and the matter brought to light.
Baroness Birk: My Lords, following on what has already been said, I believe that an early agreement must be reached between the City of London and archaeologists that the remains, which are acknowledged by all sides to be of immense importance, will be preserved. Will the Government ensure that there is wide and open discussion to forestall the building over of the three sites involved, even though recording may have taken place? There is a difference between obtaining the records and having the sites preserved so that people can see them in an interpretative centre.
Lord Hesketh: My Lords, it is still early days. I draw the attention of the noble Baroness to my earlier remarks about the recommendation made by English Heritage, which we are now considering.
Lord Marley: My Lords, is the Minister aware that there are already two important Roman sites, which are at Billingsgate and on the embankment near Blackfriars and which have been closed in? I believe it to be essential that that does not happen to the amphitheatre.
Lord Hesketh: My Lords, so far no irrevocable decisions have been taken.
Baroness Phillips: My Lords, I should like to support the noble Lord who has just spoken. I am not speaking from the Cross-Benches. Is the Minister aware that there have been several examples—and if the noble Lord wants to know the examples I can send him the information—of at least three sites which have been closed in by the City of London Fathers? Therefore, at this stage it is essential that we should ensure that that does not happen in this ease.
Lord Hesketh: My Lords, I am sure that the City is well aware of the public interest in this issue and its potential. I should remind noble Lords that only part of the amphitheatre has been uncovered and that the whole could not be preserved without the destruction of other important buildings in the City.
Lady Kinloss: My Lords, is the Minister aware that the very successful Jorvik Viking Centre in York was set up four years ago with a loan of £2½million, and that that loan has almost been paid off as nearly 900,000 visitors visit the centre each year? Therefore, will the Government lend support to the leading archaeologists who are pressing for the Roman amphitheatre discovered underneath the London Guildhall to be preserved in a national heritage centre on the scale of the Jorvik Centre in York? Perhaps discussions between the two cities would be of use.
Lord Hesketh: My Lords, I am well aware of the Jorvik Centre and am extremely pleased that the noble Baroness pointed out that there are 900,000 visitors each year. My brief gave a figure of 800,000, which is most encouraging. The Jorvik Centre is a great example where public and private investment have resulted in a very satisfactory conclusion. I am sure that the City is well aware of the success of the Jorvik Centre and will keep it in mind when considering the future of the Londinium amphitheatre.
Lord Mowbray and Stourton: My Lords, is my noble friend aware that beneath St. Peter's in Rome and beneath York Minster\ancient history has been preserved and can still be viewed through not having allowed modern buildings to be erected immediately above?
Lord Hesketh: My Lords, I am.

National Picture Collections: Safeguards
2.52 p.m.
Lord Airedale Lord Airedale asked Her Majesty's Government:
Whether in seeking to confer statutory powers on the trustees of the three English national galleries to sell pictures from their collections they will impose a condition that such power shall not be exercised in the case of particular pictures given and accepted on the understanding that they were gifts to the nation to be kept on public display.
Lord Hesketh: My Lords, the National Gallery, Tate Gallery and National Portrait Gallery are at present unable to dispose of any unwanted items from their collections, whether by sale, gift or exchange. The provisions which the Government intend to introduce would remove what we believe to be an unnecessary obstacle to sensible collections management. The existence of an enabling power would not, however, invalidate individual agreements between donors and trustees about the conditions under which particular pictures were accepted into the collections.
Lord Airedale: My Lords, I am obliged to the noble Lord for that encouraging reply. Are we not under the difficulty that boards of trustees cannot bind their successors and, without the authority of Parliament behind them, trustees will not be able to give the absolute assurance, which a prospective donor may demand, that a picture will never be sold? In consequence, we might find that some gifts which the trustees would dearly love to have will not be forthcoming.
Lord Hesketh: My Lords, I believe that in a way I answered that supplementary question in my Answer. The existence of an enabling power would not invalidate agreements between donors and trustees about the conditions under which particular pictures were accepted into the collection. That would also apply to trustees accepting new gifts into collections for the future, if they felt that they were in a position to provide such an undertaking.
Lord Strabolgi: My Lords, in view of what the noble Lord said about management, will the Government confirm that the trustees will not be required by the Treasury to dispose of works of art in order to pay for essential building repairs and special acquisitions?
Lord Hesketh: My Lords, the funds received from the sale of any unwanted items are to be ploughed back specifically into the collection and will not be available for spending on running costs of the building, maintenance and so on.
Lord St. John of Fawsley: My Lords, I should like to support what the noble Lord, Lord Airedale, has said about incorporating a general principle into the law on this matter binding trustees. Is it not a case, as my noble and learned friend Lord Hailsham might put it, of quis custodiet ipsos custodies—in other words, can you trust the trustees?
Lord Hesketh: My Lords, I am sure that all your Lordships will agree with me that over a very great length of time trustees' record of public service in many of the great national institutions and collections has been a very fine one.
Baroness Birk: My Lords, I understand that the pictures given by donors will probably be excluded in the legislation. Will the Government also exclude all those pictures now in the three galleries to which members of the public, including children, have contributed with donations ranging from large to very small; for example, the two paintings by Stubbs "The Haymakers" and "The Reapers" and also Constable's "The Opening of Waterloo Bridge"? If the Government intend to exclude those, which they should, what is the point of bringing forward this very bad legislation?
Lord Hesketh: My Lords, the disposal provision we have in mind is very carefully constrained. One of the criteria in the National Heritage Act 1983, on which we shall base the legislation, is that the item in question should be judged unsuitable for the collection and can be disposed of without detriment to students or other members of the public. I am sure that all the pictures to which the noble Baroness referred will be covered by that description.
Lord Moyne: My Lords, will my noble friend confirm that acceptance by a gallery of a gift has an implied condition that it will be retained and shown to the public?
Lord Hesketh: My Lords, I am unaware of any great work of art that has been disposed of from a public collection in this country to the detriment of the national collection.
Lord Grimond: My Lords, have the Government had any success in persuading galleries to lend to other institutions those pictures and so on which they cannot show? Do they not agree that it is almost as bad to imprison pictures unseen in cellars indefinitely as it is to sell them?
Lord Hesketh: My Lords, I should be very happy to answer a Question on that subject if the noble Lord would like to table such a Question.
Lord Dean of Beswick: My Lords, is the Minister aware that anybody who is as fortunate as I was some years ago to visit the Hermitage Museum in Leningrad will see there a substantial collection of very valuable paintings by artists such as Rembrandt that were sold to Russia in the late 19th and early 20th centuries? Is it not a tragedy that on that occasion those paintings were sold? Should we not be talking about preserving all of our heritage and not disposing of any of it on a commercial basis?
Lord Hesketh: My Lords, I am slightly mystified by the noble Lord's question. I was unaware that Rembrandt was an English artist.
Lord Dean of Beswick: My Lords, I was not referring to Rembrandt as being an English artist.
The Earl of Onslow: My Lords, is my noble friend aware that one of the dangers is that artistic tastes change? Is he aware that in the 1920s paintings by Gainsborough were extremely expensive in real terms compared to the present time? Is there not a danger that paintings will go out of fashion and be sold and then come hack into fashion and we shall regret their sale?
Lord Hesketh: My Lords, the last time the subject was raised, my noble friend Lord St. John brought up the example of the pre-Raphaelite pictures which were considered very unfashionable 30 or 40 years ago. Of course in that case the trustees, when discussing the matter as a whole, decided quite rightly—which is why one has a board of trustees—to preserve the paintings.

Eye Tests: Proposed Charges
2.58 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
Whether they will drop their proposal to charge for eye tests.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale): My Lords, the Government have proposed that, while sight tests provided under the National Health Service should remain free, patients who can afford to do so should obtain their tests privately. Clause 10 of the Health and Medicines Bill, which will shortly come before the House, will give effect to this proposal. The resources released by this change will enable us to develop preventive measures in other priority areas of primary care.
Lord Molloy: My Lords, is the Minister aware that the Government are putting financial ability in front of and above the word "compassion"? Is he not also aware that after certain operations and certain afflictions routine eye-testing in order to effect detection of a disease—for example, diabetes—is vital? Is the noble Lord really saying that if a person is a border case after an operation and the ophthalmic surgeon feels there is a need for continual eye tests, or if a person suffering from a disease such as diabetes needs regular eye tests, and is deemed to be able to afford it but cannot, he will just have to suffer? Is that the Government's policy?
Lord Skelmersdale: My Lords, the noble Lord has slightly misunderstood the position. National Health Service sight tests are carried out under the National Health Service Act 1977 either as part of the general ophthalmic service arrangements which family practitioner committees make with ophthalmic opticians and ophthalmic medical practitioners or as part of the hospital eye service. In the cases cited by him the tests will continue to be done under the National Health Service.
Lord Ennals: My Lords, further to the noble Lord's replies, can he give a guarantee that the Government will not introduce compulsory charges for eye tests
10
under the NHS? Is he aware that roughly 1 million people are referred to opticians for treatment as a result of such sight tests? Is he further aware that a recent MORI poll showed that 80 per cent. of the public are opposed to the introduction of charges? Can he give some assurance that that will not be done the next time round?
Lord Skelmersdale: My Lords, the Government's policy in this area, like many other parts of their policy, is that those people who can afford to pay and who fall outside the exempt categories should do so. There is not much difference between that position and, for example, the prescription service, which the noble Lord knows well.
Lord Molloy: My Lords, is not the noble Lord aware that the professional bodies covering ophthalmic surgeons and opticians are totally united in their view that the present system should not be interfered with? A person's eyesight is too valuable to be subject to any financial test. Would he be gracious enough to convey those views to the Secretary of State? Will the Government consider abolishing their peculiar attitude of adopting this odd animus to the professional bodies within our National Health Service?
Lord Skelmersdale: My Lords, I do not need to convey those thoughts to my right honourable friend the Secretary of State for Social Services because the professionals have already made him well aware of them. However, I should like to make the point that patients will still need to obtain a prescription for their glasses and therefore will still have their eyes checked regularly. There are no plans to change the existing type of test, which of course is all-important where the detection of glaucoma, cancers and other diseases of the eye might be thrown up.

Business
3.2 p.m.
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Lyell will, with the leave of the House, repeat a Statement that is to be made in another place on the terrorist murders in Northern Ireland.
It may he for the convenience of the House if I announce that the Committee stage of the Immigration Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Second Reading of the British Railways (Penalty Fares) Bill will be taken.

Saint Bennet Fink Burial Ground (City of London) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Betting, Gaming and Lotteries (Amendment) Bill [H.L.]
Read a third time.
Lord Newall: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Newall.)
The Earl of Arran: My Lords, it falls to me on this occasion to compliment my noble friend Lord Newall on steering his Bill thus far. I am grateful to him for withdrawing at Report stage his proposed amendment that my right honourable friend the Home Secretary should be empowered by order further to vary the amount which the operators of greyhound tracks may charge bookmakers. The Bill is itself now confined, as introduced, to varying that amount. On Second Reading and in Committee I explained that we are not opposed in principle to such a measure. For completeness I had to add that we understand that the Bill does not enjoy the agreement of the bookmakers, which may be thought to be a necessary ingredient. But it does address a real issue. Whether the solution it proposes is the right one is a question for Parliament to judge. We will watch its progress in another place with interest.
Lord Newall: My Lords, I am grateful to my noble friend. We have had some interesting and useful exchanges and I am grateful to him and to the Opposition for their support.
On Question, Bill passed, and sent to the Commons.

Immigration Bill
3.5 p.m.
The Minister of State, Home Office (Earl Ferrers): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Termination of saving in respect of Commonwealth citizens settled before 1973]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 1:
Page 1, line 6, leave out ("repealed") and insert ("amended by substituting for the word "wives" the word "spouses" ").
The noble and learned Lord said: We now embark upon the Committee stage of a Bill of great importance and a good deal of complexity, certainly so far as my attempt to understand it is concerned. The amendment proposes to amend the first section of the Immigration Act 1971. Clause 1 of the Bill repeals Section 1 of that Act and thereby removes the only absolute right to family unity in British law. The Bill's proposal to remove that right breaks the promise which was given to people settled here for
12
over 14 years and which has been repeated by previous Conservative governments.
Section 1(5) of the 1971 Act provides:
"The rules"—
that is, the immigration rules—
"shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed".
In that section the language and the use of the words "citizens and their wives" envisages that the settlement here of male Commonwealth citizens is the essential right but that freedom of settlement of their wives and children is a derivative and a secondary right. That language contrasts with that of the law of the EC, which of course applies to us and which operates in this as in other EC countries. It acknowledges the rights of spouses of either sex to come and go freely under EC law. That means that "spouses" embraces wives—if that is not too unhappy an expression, and I do not think it is—as well as husbands.
That is not the language used in subsection (5), and therefore we propose not to repeal the provision but to amend it by substituting for the word "wives" the word "spouses". That will repair the defect which exists in the language of Section 1(5), which ousts the presumption of the interpretation Acts of 1889 and 1978 that the female form of words includes the male.
The amendment is obviously technical. Nevertheless, it has considerable potential importance. The purpose of the amendment is to achieve parity as regards husbands and wives between our law and EC law. It will ensure that immigration rules are so framed that men shall be no less free than women to enter and remain in the United Kingdom in accordance with the immigration rules in force at the passing of the Bill. This is essentially an egalitarian measure as between men and women, husbands and wives. For that reason I feel sure that it will achieve the support of the Committee. I beg to move.
Lord Bonham-Carter: It is a great pleasure to follow the noble and learned Lord, Lord Elwyn-Jones, who has explained the nature of the amendment. I support it. Clause 1 repeals Section 1(5) of the 1971 Act which has been found to be sexually discriminatory. That is why an amendment to the 1971 Act is thought to be necessary. I argue that the only amendment required is the very simple one that the noble and learned Lord has proposed.
I do not know why this Bill has been introduced. There has been no widespread cry against a flood of 25 polygamous wives every year. Primary immigration is dropping; secondary immigration is dropping. The Bill was precipitated by an election letter. I can see no other reason for it. As the noble and learned Lord has said, it is a breach of an undertaking written into the 1971 Act—written into an Act of Parliament. Some argue that governments cannot bind their successors. At the best of times this has always seemed to me a somewhat tenuous argument. It is particularly tenuous if the

13
government in question are of the same political complexion as the predecessor whose undertaking they propose not to honour. If that technical doctrine were taken seriously it would mean that no undertaking by any government would be worth the Hansard upon which it is printed.
That is one reason why the Bill seems to me a somewhat serious one. It calls into question the whole reliability of pledges given by governments. As a consequence of this unreliability—this question of the honour of governments—we are asking in subsequent amendments for affirmative resolutions of both Houses to be introduced under the Bill. No honourable person would behave as this Government have behaved in respect of a pledge given to a whole group of people. The noble Earl, Lord Ferrers, is an honourable man; we all know that. He would not behave in such a manner in his personal or business life. It seems strange that the rules, the norms, the values and the propriety which apparently bind individuals in their private and business lives are not relevant to the behaviour of governments.
We wish to amend the clause in order to conform with the ruling of the European Court. The method the Government have chosen is characteristically restrictive. The restrictiveness is characteristic of the whole Bill. The Bill, it can be argued, deprives husbands of rights and places them in the inferior position in which their wives found themselves. It is somewhat ironic after the Chancellor of the Exchequer has removed financial discrimination against married women by levelling them up to the position of unmarried couples that the Committee should be asked today to deal with a similar anomaly by levelling down. That is the central argument I put forward about this Bill and this particular clause.
The noble Earl, Lord Ferrers, argued at Second Reading that it is wrong and anomalous to distinguish between those born before 1973 and those born after that date. That distinction was deliberately and carefully written into the 1971 Act. It was an anomaly which the Act inscribed in the law. When did this anomaly become intolerable? All laws of this nature create arbitrary distinctions. The noble Earl may remember the British Nationality Act 1981 which distinguishes between a child horn abroad of a British woman after 1st January 1983 and that child's brother or sister born before 1983. Is that anomaly intolerable? Will we now have an amendment to that Act to abolish the anomaly? I believe that the noble Earl will need to answer that very simple question if he really asks the Committee to take seriously the position on anomalies.
This Bill introduces elsewhere huge anomalies to which we shall be drawing the attention of the Committee. In particular I refer to the distinction between EC citizens and citizens of this country. Here is an anomaly to which the noble Earl referred at Second Reading. I hope he will explain why what he found tolerable in 1971 is intolerable in 1988. Perhaps the noble Earl can explain why an anomaly introduced in 1981 is tolerable while an anomaly introduced earlier is not.
14
The virtue of the amendment proposed by the noble and learned Lord, Lord Elwyn-Jones, is that it is simple. That is a great virtue in the law and a rare one. It maintains an undertaking which the Government solemnly wrote into the law. It is non-discriminatory. And it levels up, not down.
3.15 p.m.
Lord Renton: When the noble Lord, Lord Bonham-Carter, suggests that there is an anomaly in our law between the admission of citizens of the EC and citizens of the Commonwealth, I wonder if he is really suggesting that Commonwealth citizens should all be given the right of entry which, under the Treaty, we have granted to EC citizens? If so, it would seem to be inconsistent with what he said at Second Reading. He made it clear then that he and his party were opposed to mass immigration. If we were to repeal the control of Commonwealth immigration, that is what we would have.
Lord Bonham-Carter: I thank the noble Lord for giving way. The proposal that I support is written into the amendment to which my name is committed.
Lord Renton: That I understand. It puzzled me somewhat when the noble Lord went a good deal wider than the amendment. He has drawn attention to what he considers to be an anomaly but which most of us do not consider to be so. Most of us do not believe there is an unjustifiable anomaly between the treatment of Commonwealth citizens and those of the EC.
Let us see where we are agreed, because in a controversial matter which arouses strong feelings it is best to find agreement if we can. In Amendment No. 1 the noble and learned Lord, Lord Elwyn-Jones, is assuming, just as the Government are assuming, that subsection (5) of Section 1 of the Immigration Act 1971 shall be either repealed or replaced. Therefore it is a question of how this is done. Perhaps it would help the Committee if I were to remind it of the terms of subsection (5). It is not very long and I think it would be helpful to put it on record so that Members of the Committee can have it in their minds. It reads:
"The rules shall be so framed"—
the rules mentioned in the previous subsection, to be made by the Secretary of State—
"that Commonwealth citizens settled in the United Kingdom"—
I stress the words "settled in the United Kingdom"—
"at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed".
Therefore we are talking about how the rules shall he framed.
Subsection (5), as has been correctly, accurately and appropriately mentioned, is discriminatory. The European Court found that it was discriminatory. It benefits the wives of male Commonwealth citizens and not the husbands of female Commonwealth citizens. In the case of Abdulaziz the European Court of Human Rights held that our Parliament was guilty of sex discrimination. That is what the Government are trying to correct. I find that the indignation

15
expressed in the speeches today and at Second Reading was somewhat misplaced. I hope that I am not being unfair.
The Government are now asking Parliament to put this right. One should mention in passing that in the 15 years in which we have tried to operate it—since 1973 when it came into force—it has been found difficult to administer and has had some rather strange results. For example, at col. 365 of the Official Report at Second Reading my noble friend Lord Ferrers mentioned a case where the Court of Apppeal found that a woman liable to deportation can render herself wholly immune from deportation by marrying a Commonwealth citizen man who was settled here on 1st January 1973. That is only one example (but I understand that there have been others) of the strange and, if I may borrow a phrase, anomalous results of the operation of the subsection. After 15 years' experience it is right for us to consider a change in the law.
Without repeating the arguments given by my noble friend and without labouring what I have already said, I believe the simple thing to do is to repeal subsection (5) of Section 1 of the 1971 Act. Obviously we have to be careful how we do it so as not to cause injustice or hardship. But, there again, at Second Reading my noble friend Lord Ferrers made it perfectly clear that it does not mean that those who settled here before 1973 would be unable to bring their wives and children to join them. It means that they will have to satisfy the same requirements in the immigration rules as those who do not at present benefit from this subsection. I must confess that I find that perfectly reasonable and I hope that my noble friend will not advise the Committee to accept Amendment No 1.
The Lord Bishop of Ripon: I am grateful to the noble and learned Lord, Lord Elwyn-Jones, for introducing the amendment and for commenting that it is a complex Bill. It is reassuring for one who is not a lawyer to learn that. As I try to find my way around its complexities I am glad to know that others also do not find it entirely straightforward.
I am flattered to find that Amendment No. 1 to which I have put my name arose in part from a comment I made at Second Reading. I listened with great care to the arguments put forward at Second Reading by the noble Earl, Lord Ferrers, and by the noble Lord, Lord Renton. It seemed to me that their major argument in favour of the Bill was about numbers. We heard a good deal about numbers. We heard about the tens of thousands who were still coming into this country. We were also assured by the noble Earl that the numbers affected by the Bill before us would be very small. In other words, it is as if we are screwing a tap which is dripping only very slightly in order to try to cut down the drips. We have to ask whether the small numbers involved justify the cost of squeezing people in that way. Some of us argued at Second Reading that the cost would be so great that it could not be justified by the fact that small numbers might be excluded.
At Second Reading there were two arguments against Clause 1. The first has already been
16
underlined by the noble and learned Lord, Lord Elwyn-Jones, and by the noble Lord, Lord Bonham-Carter. It is that Clause 1 is a breach of the undertaking already given by a previous government. The second reason for disquiet about Clause 1 concerns family life. It will make it that much more difficult for certain families to be united. This is the thrust of the argument from the Churches in relation to a number of clauses in the Bill. It is yet another threat—involving perhaps only a small number of families but nevertheless a threat—to the family life of a number of people settled in this country.
I listened carefully just now to the noble Lord, Lord Renton. He said quite rightly that what was at stake was how the immigration rules were to be framed in order to do justice to the decision of the European Court. He commented that to pass this amendment would introduce an anomaly in that it was possible under present legislation for a woman affected by a deportation order to overcome that order by marrying a Commonwealth citizen settled here before 1973. That is how I understood him and he will correct me if I am wrong. What is at stake here is the question of whether the immigration rules affect those who were settled before 1973. Those rules include the business of not being a liability to public funds.
It is perfectly possible that a Commonwealth citizen settled here before 1973 would satisfy those conditions and that therefore the marriage to such a person of somebody who was due to be deported would still overcome that order. It seems to me that however we frame this legislation there will be anomalies. The noble Lord, Lord Bonham-Carter, has already pointed that out. To overcome all the anomalies in the legislation will be extremely difficult. Therefore to bring up the example of one anomaly as an argument against an amendment is simply to leave out of account all kinds of other anomalies which will continue.
This is a simple and straightforward way of bringing about what the European Court wished to occur; namely, the overcoming of the discrimination in the 1971 legislation. It is simple and straightforward and does so by an extension rather than a reduction of rights. That is the thrust of our case.
3.30 p.m.
Earl Ferrers: The noble and learned Lord, Lord Elwyn-Jones, said that this Bill was a matter of some complexity. If such a distinguished noble and learned Lord who is qualified in these matters finds it complex, I still have hope. It is a complicated matter; anything that concerns immigration is complicated. The noble and learned Lord said that the clause was discriminatory and that by introducing the amendment, which he has put down with a number of his colleagues from different parts of the Committee, the discriminatory nature of the Bill as it stands would be removed.
The noble Lord, Lord Bonham-Carter, said that he could not understand how people who were honourable in themselves could not be honourable in government. If I may say so, I find that rather a

17
curious argument—not that there is any dishonour between the Government and private individuals—because when an Act is passed it does not mean that it is passed for all time and that there can never he any alteration to it, or that Parliament is sacrosanct. In this clause we are saying that it is now 15 years since the 1971 Act was enacted and those whom Section 1(5) was intended to apply to have had all that time in which to bring their families to this country to join them without any question being raised as to their ability to support or accommodate themselves.
I differ from what the right reverend Prelate the Bishop of Ripon said in respect of the breaking up of families. The provision does not mean the breaking up of families; all that will happen now is that people will have to show that they have the ability to support and maintain those people without recourse to public funds, merely because it is now 15 years after the provision was put into effect. The reason it was introduced into the Bill, as I understand it, was because there was some justifiable concern at that time that those who were already resident in this country might be worried about their future. When the noble Lord, Lord Bonham-Carter, asks, "Why was it acceptable to the Government of the day and yet is not acceptable to the Government now?" I should remind him that it was not the Government's wording; it was part of a wording introduced by Members of this Chamber in an amendment to the Bill.
The noble and learned Lord, Lord Elwyn-Jones, said that the whole purpose of the amendment was to try to get the equality of the sexes right. He referred to the 1891 Act.
Lord Elwyn-Jones: It was 1981!
Earl Ferrers: Yes, indeed; it was the 1981 Act. I remember once being told by a civil servant: "The male embraces the female in the Civil Service". I replied that I did not think you had to join the Civil Service for that. It is of course true to say that in the normal course of events the two sexes go together.
The noble Lord, Lord Bonham-Carter, said that the purpose of the amendment was to make the Bill non-discriminatory. I am bound to tell him that it would not have that effect. The right reverend Prelate the Bishop of Ripon said that very few people were going to be affected by this provision. However, I should remind him that it was the judgment of the European Court that stipulated that our law as it is at present is discriminatory. The noble Lord has tabled his amendment to try to make it nondiscriminatory. However, the fact is that, although it would no longer discriminate in its application as between men and women, there would remain discrimination between Commonwealth and non-Commonwealth citizens and between those who settled in this country before 1st January 1973 and those who settled here afterwards.
It is already the case that, within a family containing two sons one of whom was born in 1972 and one born a year later, Section 1(5) provides that, should they in future marry foreign girls, the elder of the two would be able to bring his wife here without
18
meeting the normal tests and immigration rules, while the younger brother would be subject to them. The lack of sense in the present position is further exacerbated by the fact that if those two children were girls, and not boys, they would both now be subject to the requirements of the rules should they wish to bring their husbands to settle here at some time in the future.
The noble Lord, Lord Bonham-Carter, and the right reverend Prelate the Bishop of Ripon said that this is where their amendment would make things better. However, it would in fact put a further twist of illogicality into the situation. For example, in the case of the two girls to which I have already referred, if that provision were to apply, it would be the elder sister, and not the younger, who would be in the favourable position of not having to satisfy any particular tests before bringing a husband to this country. Therefore, if the Committee were to accept the amendment which has been moved—for reasons which I entirely understand—the Act would in fact continue to be discriminatory and it would be discriminatory within families. We think the right way to deal with this is to remove the clause altogether and thereby remove the discrimination.
Lord Pitt of Hampstead: I wish the Government would try to face the issue. We must recognise what is at stake here. When the Immigration Bill was going through Parliament in 1971, there was tremendous concern in the black community that their rights were being taken away from them. The Home Secretary of the day gave an undertaking that that would not be so. This Chamber went further than that and tabled an amendment to the Bill—which the Government finally accepted—to safeguard that position. Therefore the black community felt satisfied. It is still satisfied but, when the Government repeal Section 1(5) of the 1971 Act, it will once again be upset. If a pledge made in that connection can be taken back, that means that any other pledge that has been made can be taken hack. That is why it is unwise to go down that road.
It is recognised that the Government are in difficulty with the European Court of Justice, because the court has ruled that the section is sexist. The amendment would remove that aspect and it would no longer be sexist. Therefore the Government should accept it rather than proceeding to repeal the section. It is no use talking about the fact that it is discriminatory between Commonwealth and non-Commonwealth citizens. Why should it not be? After all, when all is said and done, of course it is discriminatory; any law relating to immigration would be discriminatory as regards the citizens of a country. Therefore, that argument is a bit of a nonsense, if I may say so. It is bound to be discriminatory between the people who were in this country before 1973 and those who came afterwards. That is an understandable situation; the law introduced in 1971 was intended to control the people who came afterwards. All the law provided was that those who were here at the time had their rights safeguarded. Why then can we not recognise and respect our pledge and continue to honour it?

19
The fact that the provision was introduced 15 years ago is also a serious blot; it is a blot on the Administration. I say that because what has happened over the years is that people have experienced the maximum amount of difficulty in bringing their wives and children to this country, as all manner of obstacles have been placed in their way; for example, about the children not being their children and so on.
We have advanced. We now have DNS to prove whose children they are. There will no longer be any difficulty about that. There has been an argument about public funds. If someone has been living here for 15 years they have been contributing to public funds tremendously. If at the same time they had no children here, they were paying for the education of others' children while theirs were elsewhere. They were not receiving child benefit; they were paying it for other people. It is nonsense to talk about such people living on public funds.
I wish that the Government would think through these matters. We are talking about people who have been here for 15 years. During those 15 years they have been contributing to the state through taxes, rates, their work and their contributions to society. In 1971 the Government gave them a pledge. I ask them for Christ's sake to keep it. The amendment merely asks the Government, since they are worried about the court's ruling—obviously they must be worried about the ruling of the European Court—to remove the sexist element. That is what the amendment will do. I hope that if the Government do not understand that, the Committee will. I plead with the Committee to see that parliamentary pledges are regarded as pledges that will always be observed.
The Lord Bishop of Manchester: I should like to say why I feel that I should support the amendment. I am sure that all sides of the Committee appreciate that we are dealing with real people. Although the numbers affected by the proposed legislation are comparatively small, these people form a significant group in the life of our country. The point about family life and the strengthening of family life is important whether it applies to many or to few.
Some years ago I spent a day with the Bangladeshi Divided Families' Association in my diocese in Oldham where many Bangladeshi people came to work in the mills when we were glad to have them come to this country. The Committee will remember that the studies carried out by all-party committees working with the Bangladeshi community in particular indicated that it is one that for a variety of reasons faces more difficulties than any other ethnic minority in our country.
I vividly remember the day that I spent with the Bangladeshi community. I heard about the difficulties that the men had in being reunited with their wives and families. I admit that this is a complex matter. It was difficult in Bangladesh to determine the truth of certain family relationships, and yet one by one many families have been allowed to come here while with others there are great delays.
20
In preparation for the debate I thought that I would ask one of my staff in the diocese to interview Bangladeshis again to see whether the situation was continuing. I am afraid that I was unable to do it myself. I shall give two examples of the kind of people who will be affected by the legislation. One is a male whom I shall call Abdullah for the sake of the debate. He was originally from Bangladesh. He came here before 1968. Section 1(5) applies to him. His wife will be interviewed at some point but well after the legislation is likely to go through. As is relatively normal, she could be refused right of entry due to insufficient proof of relationship. Any further application would then come under the new rules. As he is working for a low income, below the subsistence threshold for DHSS purposes, Abdullah feels that she will never get here because he will never prove that he can support her and the children without recourse to public funds. He feels that she has fallen foul of an informal quota system which is not supposed to exist.
The second example, whom I shall also call Abdullah, has been here since 1959. He is now in his middle fillies. He has taken early retirement from the buses. He has a house, but he will not work again. If he does not put in an application before the repeal of Section 1(5), he feels that he will be permanently separated, because, although he has paid his taxes and so on for 25 years, under the likely rules which he feels would apply to him, he could not prove that he could support his wife without recourse to public funds.
Although these people are a small group in our communities, many of them come from the more vulnerable sections of ethnic minorities, and the legislation may affect them. The point made by my noble friend the right reverend Prelate the Bishop of Ripon about the need to consider the effects on family life is valid.
I find it difficult to understand why, in response to the decision of the European Court, the Government did not decide to implement the change the other way and give wives permission to bring in their husbands.
3.45 p.m.
Lord Mishcon: My noble and learned friend Lord Elwyn-Jones, with his customary modesty, said that this was a complex Bill. The noble Earl, Lord Ferrers, who has that quality in common with my noble and learned friend, assented. That does not mean that this is a complicated amendment. The issues are transparently clear, in my submission. They cover two points. First, is Parliament prepared, and is this place prepared, to enter into a breach of faith? Secondly, is Parliament prepared, and is this place prepared, as at this moment if the amendment is defeated, to dictate a matter of social policy in our country which I believe to be highly undesirable?
First, on the issue of good faith, the noble Earl said that Parliament can always repeal something which Parliament has previously enacted in the light of experience. I wonder whether he would assent to this proposition: one does not do that unless there are exceptional new reasons for doing so, especially when a previous Home Secretary, of the same political

21
complexion as the present Government, dealing with arguments that were advanced in this place and in the other place, said that, if the 1971 Act were passed and it did not deal fairly with people who were settled in this country, it would be a wrong parliamentary enactment.
This place, with people of all political persuasions contributing, and with the leader in that matter being the noble Lord, Lord Wade, sitting on the then Liberal Benches, passed an amendment. That amendment said, and meant, that it was wrong for that Act to be passed without in the future protecting the dependants of the people who were settled here, as defined in that Act.
Mr. Maudling, the Home Secretary at that time, solemnly, and without talking in terms of inconsistencies—whether they be of someone born a year later, or whatever—used words which I ventured to quote on Second Reading, I quote them again. Mr. Maudling said:
"I said on Second Reading—and I was very anxious that this should be made known—that Commonwealth citizens already here free of conditions, which means, broadly speaking, all working immigrants, will not be affected. There will be a right to work where they wish, as at present, and a right of automatic citizenship, as at present. There will be no new papers to be carried, and they will be allowed to bring in dependants. That WAS the undertaking I gave, and I have not departed from it in any way".—[Official Report, Commons, 19/10/71; col. 551.]
In order to hind that undertaking into solemn legislation he concluded by saying at col. 552:
"By these Amendments we are giving statutory form to the undertaking I gave on Second Reading that people already accepted for settlement in this country would not be prejudiced by the Bill."
It is no answer to say, "Well, we have had experience for so many years". The noble Earl did not talk about bad experience, difficult experience, exceptional circumstances for breaching that undertaking and that statutory provision. People trusted the Government when that provision was passed. I solemnly ask whether, if the present provision is not amended in this way, the Committee is worthy of that trust. It is a weak argument to talk in terms of the European Court of Human Rights and its decision. The decision was: "British Government, you have not gone far enough. You must not do this in regard to husbands if you do not do it for wives and vice versa". It is like saying to those judges dealing with human rights: "Do you know what the British Government are going to do because of your judgment? Because of your judgment they are going to say, 'it was wrong, was it, to do it for husbands and not for wives? Well, we will not do it for either. This is our conception of human rights. Thank you so much, European Court of Human Rights, for having got us out of all our difficulties'".
I ventured to give an example at Second Reading; I shall somewhat alter it. Is it not the same as if there is a storm and noble Lords, in their mercy, open the door and admit a wife? Somebody says, "Is not that a little wrong? The husband is on the doorstep too". You say, "Oh, really? Then in those circumstances I think I shall push the wife out". Is this the way in which we deal with immigration and with promises?
I turn shortly to the second issue. It is a social issue and, as I said, we shall he deciding it in the course of
22
the debate. We on these Benches understand completely that we have to control new immigration. The noble Lord, Lord Renton, was quite right when he said that it has to be controlled. Most of us regret it, but our island areas are limited, our employment is limited and our housing is limited. On both sides we agree that there has to be limitation. This is the time, is it not, to consolidate? This is the time to reaffirm a fair immigration policy. This is the time when we want social conditions which are just and which are harmonious with good family life because good family life breeds good citizenship. The numbers have been going down; as has been said, they went down to 40,000 in 1986. I asked the Minister whether he would kindly give me the figures for 1987 and, with his usual courtesy, he gave them so far as he could. They were approximately 35,000 for the first nine months of 1987. So there were no exceptional circumstances in regard to mounting immigration, primary or secondary.
In these circumstances, quite apart from the pledge and the decency argument, as a matter of policy do we not wish to ensure that those who are here, and properly here, who have been settled here for years, can bring over their families, including their children up to the age of 18, so that both spouses can be reunited, in the hope that we shall cement instead of divide and unite instead of separate? In those circumstances, we can say with good consciences that we have done our best to produce good citizenship among our immigrant community. If we do not pass this amendment, we may have much on our consciences.
Earl Ferrers: One of the great pleasures of being in this House is being able to hear good advocacy, and we have heard the remarkable advocacy of the noble Lord, Lord Mishcon. I say in all seriousness that it is a pleasure to hear it, even if one may not agree with the conclusions or with the point which he is trying to make.
The noble Lord, Lord Mishcon, is a distinguished lawyer. He is also a distinguished parliamentarian and politician. For those reasons I find it quite astonishing that he fell into the elementary trap of making a clause stand part debate speech and did not address himself to the particular amendment. The noble Lord, Lord Pitt, fell into the same trap. All the arguments of both noble Lords were that the clause should not stand part. What we are addressing ourselves to is Amendment No. 1.
Lord Mishcon: I know that the noble Earl will forgive me, as he always does, and allow me to intervene, because he is very courteous. However, if we were debating whether the clause should stand part, the noble Earl knows as well as I do—and he is always fair—that the argument which he would address to the Committee would be that the clause cannot stand part because we should be in breach of the European Court of Human Rights. If the clause is to remain, we should be in breach of that judgment. That is exactly why I am trying to say to the Committee that we should be upholding that judgment and altering the word "wives" to "spouses". We cannot do anything else.
Earl Ferrers: That is all very fine, but the noble Lord did slightly sweep away the judgment of the European Court of Human Rights because he said "Oh, the Government would say 'here comes the European Court of Human Rights to solve all our problems' ". The fact of the matter is that the noble Lord is suggesting that we add certain words. I tried to explain to the Committee that if we added those words we should not be eliminating discrimination but adding to it. I made it perfectly clear why and gave the example of a person who was here in 1972 and one who was born later. At the moment there is discrimination between the two. If these words were to be added to the Bill, there would be discrimination between girls who were born before and after that time. It really is not an answer to say that if we pass this amendment we shall all be in the clear, that we would satisfy the European Court of Human Rights and that there would be no discrimination. There will be.
Lord Bonham-Carter: Perhaps the noble Earl will permit me to intervene. I am not sure that I quite follow his argument. Is he saying that if we pass this clause as amended there will be sexual discrimination? We have never argued that there will be no discrimination if this amendment is passed. All we have said is that if the amendment is passed, the sexual discrimination to which the court objected would be eliminated. Is he saying that that is incorrect?
Earl Ferrers: No. Of course sexual discrimination will be eliminated if we pass the amendment. However, this amendment will have other effects which will make it discriminatory.
Lord Elwyn-Jones: The Committee has heard distinguished speeches and I shall now be brief. What is in issue here is whether we are going to perpetrate the further breaking up of families, which would be one of the consequences of the government proposal. The maintenance of family unity, especially in the immigrant communities, is absolutely crucial at this time of so much law being infringed and so much disorder. I venture to invite the Committee to weigh very carefully the guidance we have received from the two right reverend Prelates and from other parts of the Committee. I invite the Committee to express a view on this very important issue as regards the future of social harmony in our country.
4 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 95, Not-Contents, 120.

DIVISION NO. 1

CONTENTS

Amherst, E.

Blackstone, B.

Ardwick, L.

Bonham-Carter, L.

Attlee, E.

Boston of Faversham, L

Aylestone, L.

Bottomley, L.

Basnett, L.

Briginshaw, L.

Birk, B.

Burton of Coventry, B.

24

Carmichael of Kelvingrove, L.

Mackie of Benshie, L.

Cledwyn of Penrhos, L.

McNair, L. [Teller.]

David, B.

Mais, L.

Davies of Penrhys, L.

Manchester, Bp.

Dean of Beswick, L.

Mason of Barnsley, L.

Donaldson of Kingsbridge, L.

Mayhew, L.

Dormand of Easington, L.

Mishcon, L.

Edmund-Davies, L.

Mulley, L.

Elwyn-Jones, L.

Nicol, B.

Ennals, L.

Northfield, L.

Ewart-Biggs, B.

Ogmore, L.

Falkender, B.

Oram, L.

Falkland, V.

Paget of Northampton, L.

Fisher of Rednal, B.

Peston, L.

Fletcher, L.

Phillips, B.

Gallacher, L.

Pitt of Hampstead, L.

Galpern, L.

Ponson by of Shulbrede, L. [Teller.]

Graham of Edmonton, L.

Grey, E.

Porritt, L.

Hampton, L.

Prys-Davies, L.

Harris of Greenwich, L.

Rathcreedan, L.

Hayter, L.

Reilly, L.

Henderson of Brompton, L.

Ripon, Bp.

Heycock, L.

Ritchie of Dundee, L.

Hughes, L.

Sainsbury, L.

Hunt, L.

Seebohm, L.

Hylton, L.

Serota, B.

Irvine of Lairg, L.

Shackleton, L.

Irving of Dartford, L.

Shepherd, L.

Jacques, L.

Stallard, L.

Jay, L.

Stewart of Fulham, L.

Jeger, B.

Stoddart of Swindon, L.

Jenkins of Hillhead, L.

Taylor of Blackburn, L.

John-Mackie, L.

Taylor of Mansfield, L.

Kennet, L.

Tordoff, L.

Killearn, L.

Turner of Camden, B.

Leatherland, L.

Underhill, L.

Listowel, E.

Wallace of Coslany, L.

Llewelyn-Davies of Hastoe, B.

Wedderburn of Charlton, L

Longford, E.

Whaddon, L.

Lovell-Davis, L.

Williams of Elvel, L.

McCarthy, L.

Wilson of Rievaulx, L.

NOT-CONTENTS

Alexander of Tunis, E.

Effingham, E.

Ampthill, L.

Ellenborough, L.

Arran, E.

Elliott of Morpeth, L.

Bauer, L.

Faithfull, B.

Beaverbrook, L.

Ferrers, E.

Belhaven and Stenton, L.

Fraser of Kilmorack, L.

Beloff, L.

Gainford, L.

Belstead, L.

Gray of Contin, L.

Bessborough, E.

Greenhill of Harrow, L.

Birdwood, L.

Hardinge of Penshurst, L.

Blake, L.

Harmar-Nicholls, L.

Blatch, B.

Harvington, L.

Blyth, L.

Havers, L.

Boyd-Carpenter, L.

Hesketh, L.

Brabazon of Tara, L.

Hives, L.

Brougham and Vaux, L.

Home of the Hirsel, L.

Butterworth, L.

Hooper, B.

Caldecote, V.

Hylton-Foster, B.

Campbell of Croy, L.

Jenkin of Roding, L.

Carnegy of Lour, B.

Jessel, L.

Carnock, L.

Kaberry of Adel, L.

Constantine of Stanmore, L.

Kimball, L.

Cottesloe, L.

Kinloss, Ly.

Cowley, E.

Kinnaird, L.

Craigavon, V.

Lane-Fox, B.

Craigmyle, L.

Lauderdale, E.

Crawshaw, L.

Layton, L.

Cromartie, E.

Long, V.

Cullen of Ashbourne, L.

Lothian, M.

Davidson, V. [Teller.]

Lovat, L.

De Freyne, L.

Lurgan, L.

Denham, L. [Teller]

Lyell, L.

Derwent, L.

Mackay of Clashfern, L.

Dilhorne, V.

Macleod of Borve, B.

Donegall, M.

Mancroft, L.

Dundee, E.

Margadale, L.

Eccles, V.

Marley, L.

25

Merrivale, L.

Sempill, Ly.

Mersey, V.

Shannon, E.

Mowbray and Stourton, L.

Skelmersdale, L.

Munster, E.

Stockton, E.

Nelson, E.

Strange, B.

Newall, L.

Strathcona and Mount Royal, L.

Nugent of Guildford, L.

O'Brien of Lothbury, L.

Strathspey, L.

Onslow, E.

Sudeley, L.

Orkney, E.

Suffield, L.

Oxfuird, V.

Swansea, L.

Ponder, L.

Swinfen, L.

Penrhyn, L.

Terrington, L.

Peyton of Yeovil, L.

Teviot, L.

Plummer of St. Marylebone, L.

Thorneycroft, L.

Polwarth, L.

Thurlow, L.

Rankeillour, L.

Trafford, L.

Renton, L.

Trumpington, B.

Rippon of Hexham, L.

Vaux of Harrowden, L.

Rodney, L.

Waldegrave, E.

Romney, E.

Ward of Witley, V.

St. Davids, V.

Wolfson, L.

Salisbury, M.

Young, B.

Saltoun of Abernethy, Ly.

Resolved in the negative, and amendment disagreed to accordingly.
Viscount Long: I beg to move that the House do now resume for the Statement.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Northern Ireland Killings
4.8 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell): My Lords, with the permission of your Lordships, I shall repeat a Statement that is currently being made in another place by my right honourable friend the Secretary of State for Northern Ireland. The Statement is as follows:
"With permission, Mr. Speaker, I wish to make a Statement on the recent killings in Northern Ireland, and especially on the murders of two soldiers in Belfast on Saturday 19th March.
"I must remind the House of the background and sequence of events during the past week in Northern Ireland. On Wednesday the funerals were held of the three IRA terrorists killed in Gibraltar. In spite of the very large crowds and the extremely tense situation in West Belfast, the funerals had proceeded in an orderly manner, without violence and without any paramilitary display. This was the position when a vicious attack took place at Milltown Cemetery by a loyalist gunman. In that attack three people attending the funeral were killed and a large number injured, of whom one remains in intensive care.
"On Thursday there was the funeral of the IRA gunman shot by the army on Monday. He was acknowledged by the IRA as one of its members. His funeral took place without disturbance and without paramilitary display.
"On Friday the funeral took place of Charles McCrillen, a Catholic with no paramilitary
26
connections, shot by the UFF; and of Thomas McErlean, one of the three killed at Milltown Cemetery. These again took place peacefully and without any breach of the law. On Saturday the funerals of the other two killed at Milltown Cemetery took place; first that of John Murray, and second that of Kevin Brady, who was acknowledged by the Provisional IRA to be one of their members. It was at this funeral that the quite horrific events took place that have so shocked the world.
"I should like to tell the House the facts as far as they can be established about these events. Just after midday on Saturday, following the funeral service at St. Agnes' Church, the cortege moved off along Andersonstown Road towards Milltown Cemetery. At that point a civilian car attempted to reverse away from the cortège. Despite the television coverage of the subsequent events which many honourable Members will have seen, it remains unclear how the car came to be in that position and for how long it had been on that road. What is quite clear, however, is that as it reversed away from the cortège, its way was blocked, both forward and backward, by taxis accompanying the funeral. What immediately followed is a matter of sickening visual record. A number of those in the funeral cortege immediately set upon the car with the obvious intention of pulling out the two occupants. Photographs indicate that at this point the driver of the car leaned out of his window and fired one shot in the air— the only shot which both occupants fired in the course of the attack upon them. After only a moment's pause the crowd resumed the onslaught on the car, some of them smashing at it with iron bars, and eventually succeeded in hauling out both occupants. Both men were then dragged by the crowd into an adjacent stadium, the gates were closed and it appears that a smaller group of attackers continued to assault them, stripped them and searched their clothing, subsequently threw them over a wall, and then bundled them into a black taxi which took them to a nearby piece of wasteland, where they were shot.
"It subsequently emerged that the two victims were corporals in the Royal Corps of Signals. Shortly beforehand they had left a joint police and army base in North Howard Street Mill after completing a routine maintenance task, in order to return to their unit at Lisburn. They had no reason to be in the vicinity of the funeral. This is not an approved route for soldiers who are not on operational duty at the time, and there is absolutely no question of their being involved in any way with surveillance or any other duties connected with the funeral. I am therefore unable to tell the House with any certainty why they were there. If the most likely explanation is that they decided to take the shortest route back to their base, without appreciating the presence of the funeral, this can only be conjecture, and it will be probably never be known why they were there.
"Whatever the reason, however, nothing can conceivably justify the utterly appalling outrage that then occurred and which resulted in their

27
deaths. The whole House will join me in extending the utmost sympathy to their families, and even more so in view of the awful television pictures of the occasion. Nor has it gone unnoticed that although they both had loaded personal protection pistols, they showed incredible restraint in using them only to fire a warning shot in the air.
"In the face of this outrage and the others in the week, the first and immediate objective is to bring to justice those responsible. In respect of the Milltown cemetery attack, a man will shortly be charged with these murders, and also a number of other serious offences. In respect of the killing of the soldiers, two men are already in custody. In addition, a massive murder investigation is under way, in which all possible resources are involved, to identify all those responsible.
"The next issue that I wish to address is that of the approach of the RUC to the conduct of these funerals. Large funerals and processions arc arguably the most difficult events from a public order and terrorist threat point of view that the security forces face. They have been used quite unscrupulously by paramilitaries for propaganda purposes.
"The chief constable, in determining the most appropriate method of policing any funeral, takes account of all the relevant circumstances in reaching his decision. Clearly a prime consideration has been that they should be conducted within the law and without paramilitary display. He also would have regard to the degree to which other elements would seek deliberately to exploit the presence of the police to provoke violence and disorder.
"There have been suggestions made that the arrangements for the funerals were the consequence of a political directive and that there had been some interference with the operational independent responsibility of the chief constable. This is quite false. The chief constable has asked me to make quite clear that he takes full responsibility for the arrangements for the funerals, and that these were policing decisions, taken after the most careful assessment of all the relevant circumstances. I emphasise that I fully support the decisions that he took in these matters, and in which the initial outcome had clearly been successful. However, clearly the two incidents that subsequently occurred are wholly unacceptable and require immediate review in regard to policing to be followed at any future funeral. The chief constable has informed me this morning that he is carrying this through as a matter of urgency.
"This task I know that he will carry through with great integrity. But the House knows well how difficult it is to ensure that funerals can proceed in good order and within the law when there are elements who have absolutely no scruples or respect for family feelings in the way in which they will exploit them.
"Faced with the appalling violence of the last weeks, not only in Belfast, but with the vicious murders of Jillian Johnston in Fermanagh and
28
Constable Graham in the Creggan only this morning, the House may remember the words I spoke last Thursday about the desperate need to break the awful cycle of violence and retaliation and end the suffering and heartache that is achieving nothing but more misery for all. This is now urgent, and it is the time when every person with a spark of human decency must determine to give their full support to the fight against terrorism from whichever quarter it may come. The security forces will take the lead as they have done so bravely over the years, but they must have the whole hearted co-operation of everybody in the Province, in the island of Ireland, and throughout the United Kingdom, in their task. I saw this morning Archbishop Eames, Cardinal O'Fiaich, the Moderator and Secretary of the Presbyterian Church and the President of the Methodist Church, on the need for all in the Province to take their share of responsibility and to condemn violence in all its forms.
"It is vital that we help the community in any way to support the fight against terrorism, and in this connection we arc improving significantly the confidential telephone system. Very shortly indeed we shall be supplementing the present system with a single and easily memorable free phone number usable right across the Province. I have asked the broadcasting authorities to publicise this number and they have agreed. This will be a valuable strengthening of the present facility, which is in fact being used by a considerable number of people in their horror at the events of Saturday.
"The fight against republican terrorism must be waged also beyond the confines of Northern Ireland and particularly raises major challenges for the Government of the Republic of Ireland. A significant number of steps have been taken to help improve our cross-border co-operation, and we particularly appreciate the amount of weapons and explosives that have already been recovered by the Garda. We have to keep working to improve this co-operation in our common interest in defeating terrorism, and I have this morning agreed with Mr. Lenihan that there will be a further meeting of the inter-governmental conference this week, in which we shall be discussing cross-border security cooperation, and which will be attended by Mr. Lenihan and myself, as co-chairmen, by Mr. Collins, the Irish Minister of Justice, by my right honourable friend the Minister of State and by the chief constable and the commissioner of the Garda.
"Mr. Speaker, the common phrase this weekend is that the troubles of Northern Ireland had plumbed new depths of horror. That was the phrase at Enniskillen, at Milltown Cemetery and in the Andersonstown Road on Saturday. And the truth is that there will be new depths again so long as this awful and violent campaign of terrorism and revenge continues. It has got to stop in the name of humanity and if there is to be any decent future for the people of Northern Ireland and all those living in the island of Ireland and if the evil

29
shroud of terrorism is to be lifted from the United Kingdom as a whole.
"We all have our part to play, whether in actively combating terrorism, whether working to build bridges across communities, whether in deciding we do nothing in our words or actions that can increase the tensions. We all have our part, and the duty we owe to all the tragic victims of these outrages is to play that part to the full."
My Lords, that concludes the Statement.
4.20 p.m.
Lord Prys-Davies: My Lords, we thank the Minister for repeating the Statement. I come to the Dispatch Box for the second time in four days to condemn atrocity in Northern Ireland, Obviously we on these Benches join unreservedly in the condemnation of the horrific murders of the two young soldiers in West Belfast last Saturday and we express our utmost sympathy with the bereaved relatives. We also condemn the murder of yet another policeman in Londonderry earlier today and extend our sympathy to his family.
On Saturday the television camera captured the depth of bitterness and hatred that accompanied the murderous attack on the soldiers. We were all shocked, alarmed and sickened at the savagery which was unleashed before our eyes. We associate ourselves with the remarks of the Secretary of State about the action of the police in keeping their distance during the funerals last week. It was inevitably a complicated decision for the chief constable. We are told that the chief constable is now studying urgently whether that decision was correct or whether it needs to be modified. We suggest that in evaluating that decision the police will also have to consider whether the violence would have been even greater if they had not kept their distance during the funerals.
We note from the Statement that the Secretary of State is absolutely satisfied that the two soldiers had no reason to be in the vicinity of the funeral. They were not on the route of the funeral as part of any undercover operation or to spy on the funeral. We regret deeply that somehow the young soldiers drove into the funeral route and became entangled with it, in breach of their instructions. We agree with the Secretary of State that, whatever the reason, nothing can conceivably justify the outrage which occurred.
I have only one question for the noble Lord, Lord Lyell. Can the Minister tell the House whether the helicopter personnel promptly summoned assistance from the security forces or police and, supplemental to that question, was the help dispatched without avoidable delay? That is a matter which is not referred to in the Statement.
We realise that on Saturday emotion and tension were particularly heightened and that some people may possibly have feared a repeat of the savage attack in Milltown Cemetery. But the fury, violence and depth of hatred which we saw in Northern Ireland last Saturday is an indication of the magnitude of the problem which faces the people of Northern Ireland and the two Prime Ministers.
30
In conclusion, we urge as strongly as we can that the Inter-Governmental Conference, with the active involvement of the two Prime Ministers, should come up with measures that will at least prevent a worsening of the position in Northern Ireland. Is that too much to hope for?
Lord Donaldson of Kingsbridge: My Lords, in thanking the Minister for the Statement, perhaps I may associate my noble friends and colleagues on these Benches with the shock which he has expressed at the horrific events which the Statement describes and with his sympathy with the families of the two fine young men who were so savagely lynched by the crowd. A lynching mob is one of the most disagreeable manifestations that society can reveal. To see it on one's own television, as many of us did, is something that we all hoped would never happen in our lifetimes.
I should like to express our relief that the statement from Gerry Adams, which was reported in the newspapers and may not have been correct, that the two soldiers were members of the SAS was an ordinary untruth based on no facts and that the facts arc quite different; that they were members of the Signal Corps on reasonable business which need not have taken them to the area and that nobody knows why they were there. The Secretary of State's unswerving denial that they were in any way engaged in surveillance of the funeral seems to me obviously correct. I hope that everybody will accept it, including Mr. Gerry Adams.
I have only one question for the Minister. Am I right in having gathered from the newspapers that the IRA claims responsibility for that disgusting scene? I think I saw that they were. If they are, I think that we ought to know.
I accept the chief constable's view as to what is the right thing to do over the surveillance or non-surveillance of funerals. I do not think that opinions from Whitehall are of the slightest interest. There is a very experienced group of security people—both army and RUC. They cannot always be right in a situation which leads inevitably to clashes, but I shall be very happy to continue to accept without further criticism their views as to the right way to deal with this situation.
We were appalled to hear of yet another constable—Constable Graham—being shot this morning. Will it never end? I do not think it ever will. I believe one thing is absolutely certain—that the situation will get worse before it gets better.
The Minister referred to the Churches. I am very glad that the Secretary of State has been talking to them. They have not been blameless always but certainly in situations of this kind I think that they are behaving as they should. They are one of the sources which can provide some help.
The other development which is very encouraging—and which was always effective right back in the 1970s when I was in Northern Ireland—is that of the freephone system. I am very glad that that will be used, because it gives people who suddenly can stand the situation no longer an opportunity to ring up and give information.

31
The last point I wish to make is that I believe things will get worse. I believe that the Secretary of State will have very difficult decisions to make. I think that he has the best advice possible, and we shall back him in any decision that he makes in trying to control the situation.
Lord Lyell: My Lords, perhaps I may briefly reply to the very helpful comments and sympathy that have been expressed by the two noble Lords who have spoken. The noble Lord, Lord Prys-Davies, proffered sympathy and stressed the words of the Statement. I am sure that we are all particularly grateful for his comments about the duties of the Royal Ulster Constabulary and how they carry them out in this very difficult area of the policing of funerals. The policing of such processions and funerals is entirely an operational matter for the chief constable. With the full support of my right honourable friend, he considers each funeral according to its particular circumstances, having regard both to the wish for peace and dignity and to upholding the law.
As to the question why the two soldiers were in that particular location, that is something we shall never know. As I have stressed, the two soldiers were not on surveillance duty. They were returning to their headquarters at Lisburn and the route that they took was one of many possible routes. We shall never know why they happened to be in that particular location at that particular time.
The noble Lord, Lord Prys-Davies, also asked me about the helicopter seen on television overflying the events on Saturday morning. I should like to stress first that the situation on the ground was very unclear and, as I understand it, the helicopter was at some height and distance away at the onset of these events. Secondly, the helicopter was not able to give assistance to forces on the ground who could not have moved sooner without possibly being accused of some aspect of recklessness. It would appear that preliminary surveillance gave no reason to indicate involvement of soldiers nor, indeed, of the nature of this appalling disturbance.
The noble Lord, Lord Donaldson, asked about the Provisional IRA. Whatever the IRA may have had to say in the media, I am sure that all noble Lords—indeed everyone—will treat those comments with the contempt that such remarks and justifications deserve. The facts are that those two soldiers, as I have described in the Statement, were brutally beaten and shot. I stress again that the soldiers did not have anything to do with the SAS. We shall never know why they were in that particular location.
Once again I am grateful to the noble Lord, Lord Donaldson, for his comments on policing and also for his helpful remarks about the freephone, which we believe will be of assistance. It seems that it has been of some assistance since the ghastly events of Saturday. We hope that the measures I have announced today will be of help.
4.30 p.m.
Lord Mason of Barnsley: My Lords, I am sure that we all abhor the bestiality of the West Belfast terrorists as witnessed on our screens over the weekend. I believe that it was pressure from Sinn Fein, the Roman Catholic Church and the Government of the Republic that determined the change in security policy at Provisional IRA funerals. It was a mistake, I believe. Had the policy not been changed, those two young men might have been saved and alive today. Indeed, they might not even have strayed into the danger area. Moreover, at the previous funeral that madman might not have got through the security ring to hurl his bombs. It was a mistake.
I hope the House appreciates that the Provisional IRA fixes its own propaganda settings and scenes. When it appeared that it was going to be denied the opportunity to fire a salute over the coffins of the three Gibraltar bombers, its men, who were in uniform and armed, went secretly before the funeral into a quiet side street and fired shots over the photographs of the three Gibraltar bombers. That was done in cahoots with the British television media who did not inform the security forces. The terrorists got their propaganda before the funeral took place. Therefore, Parliament in the first place, and then the Home Secretary and the Northern Ireland Secretary, should ask the chiefs of television whose side they are on.
Further, if no security forces are present at the funerals of terrorists, who takes charge? It is the terrorists. They organise the programme. They oversee the funeral march. All the young men of West Belfast look upon them as possessing the authority of the state; they do not look to the authority of the Government. That gives credence to the terrorist leadership.
I appeal to Her Majesty's Government for the policy to be changed. There should be no "no go" areas in any part of the United Kingdom and especially not in Northern Ireland. Secondly, at some time the Government must consider whether they will allow the media, and television in particular, to make secret arrangements with terrorist leaders and take secret photographs of them, inferring that the terrorists are operating widely in the Province, and then to display them on national and international television while the authorities stand by and freely allow it.
The Republic does not allow it; it has not done so for years. It has passed legislation. No member of any terrorist group may appear on television or radio in the Republic. Terrorist propaganda has been cut off. If we are to beat the terrorists, then we must consider doing the same.
Lord Lyell: My Lords, I am sure that noble Lords will be very grateful for the forthright comments of the noble Lord who has considerable experience of activities in Northern Ireland. With that in mind we should all respect his views.
The noble Lord mentioned pressure from three separate quarters as regards the policing of funerals. I should like once again to stress that the chief

33
constable considers each funeral according to its particular circumstances. It is a decision for the chief constable which, as I stressed in the Statement, is fully supported by my right honourable friend. That is a matter of known policy.
Secondly, at the time of the funerals in the past week, and especially the funerals on Saturday—at least the second one which gave rise to these appalling events—the chief constable took account of appeals for a low security presence from clergy and local community leaders, not all of whom are terrorist leaders, as the noble Lord will know. The chief constable considers each case individually. It was his decision that low security was justified in those cases.
Thirdly, had there been a heavier security presence on Wednesday or Saturday it could easily have had other penalties given the Provisional IRA's wish to provoke disorder and the constant danger to the security forces when they are at close quarters with terrorists. I want to stress to the House and to the noble Lord that there is no question of "no go" areas. With his knowledge of Northern Ireland I hope that he will accept that statement. The security forces continued to operate in the areas around both funeral processions on Saturday. That was the policy, and it will continue.
As regards the noble Lord's comments about television coverage and the media, that is not a matter for the Government. Certainly, we are aware of the noble Lord's experience in Northern Ireland. We note everything that he says, as I am sure, also, will the House.
Lord Hunt: My Lords, I do not want to say anything that may make matters more difficult for the Government in a very sensitive and dangerous situation. However, I should like to put one question to the Minister which may have a bearing on the nature and magnitude of the problem. Would he care to comment on an assertion made during an interview this morning on the BBC seven o'clock news when the interviewee, speaking in general terms, claimed that the crowds at Catholic funerals are there under duress and pressure from the IRA? Would he care to comment on that assertion?
Lord Lyell: My Lords, in one word, no. However, out of courtesy to the House and above all to the noble Lord, perhaps I may say that we would have no means of knowing why crowds turn out at these events, processions, funerals or whatever. Certainly it has been the case that at all the funerals during the past week there have been fairly large crowds. But they varied in size and location. However, the noble Lord, Lord Hunt, will know that crowds tend to vary in composition on these occasions which sometimes give offence, although sometimes they do not.
The Earl of Onslow: My Lords, is my noble friend aware of the remarks made by Pearse after the 1916 uprising: "But the fools, the fools, the fools, they have left us our Fenian dead"? Would it not have been possible not to have given the bodies back in Gibraltar but to have buried them with decent Christian burial there as opposed to unchristian burials, when the lady was compared to Christ? We
34
would not then have had the funeral processions or the provocation. We would not then have allowed the IRA political propaganda and the general mayhem that has resulted in Belfast.
Lord Lyell: My Lords, my noble friend's suggestion might possibly have its attractions, but I am afraid that I am not sure of the legal procedures in Gibraltar, let alone in the United Kingdom, over the state of bodies and to whom they belong. Perhaps I might make inquiries and write briefly, and I hope expeditiously, to him. As far as his first point is concerned, I am aware of what he says but I am afraid that I have not read all the words.
The Lord Bishop of Manchester: My Lords, reference has been made during this Statement and questions to the Minister to the role of the Churches. I am sure that we all recognise that they have a part to play. One thing for which we can be profoundly grateful is the increasingly good relationships between Christian leaders in the Republic of Ireland and Northern Ireland, although the bitter divisions between the communities are still all too apparent. I should like to ask the noble Lord whether the struggle against terrorism, which has to go on constantly, is in any way going to impede the search for political solutions, because we realise that this is fundamental to the whole tragic situation in Northern Ireland.
Lord Lyell: My Lords, I should like to thank the right reverend Prelate for his support and above all for everything that the Church leaders in Northern Ireland are doing today. As my right honourable friend pointed out in the Statement, he met the various Church leaders this morning. I understand that there will be a further announcement later on this afternoon.
The right reverend Prelate asked whether political steps were being taken. This is the case, and we proceed in this way in Northern Ireland and the whole of Ireland. Discussions between the Government of the Republic and the United Kingdom Government in tandem cover both political attitudes and the problems of terrorism and security. However, we are very grateful for the thoughts that have been suggested by the right reverend Prelate.
Lord Fitt: My Lords, I have known the fury of the IRA mobs in Northern Ireland over many years. They invaded my home and had it not been for certain circumstances, I should not be here to address your Lordships' House. I express my deepest sympathy over those who have died, particularly the two young soldiers who met such a savage death at the hands of my former constituents. As I and my wife watched those terrible scenes on television we were vividly reminded of a mob with exactly the same motivation which attacked my home many years ago, in 1976.
Perhaps the Minister will accept that I find it deeply offensive to see the IRA paraded on television, firing shots either over shrines or anywhere else and wearing the cowardly Balaclava helmet to prevent identification. Will he make representations to the

35
broadcasting authorities that in no circumstances should the people in these islands be allowed to witness this terrible and provocative scene of the IRA firing shots in furtherance of their cause? We find it deeply offensive. As one who has spent his political and personal life in Northern Ireland under the threat of the IRA, I no later than this morning would have given an undertaking to the House to prevent those scenes being shown on television.
Lord Lyell: My Lords, all of us in your Lordships' House admire the continuing courage of the noble Lord, not just for the courage that he showed in his duties in West Belfast 10, 15 or 20 years ago. He knows West Belfast better than anybody in the House. He can stress the horror and outrage that is felt about these appalling scenes, above all of hooded gunmen firing salutes.
Certainly I cannot of my own volition stop these scenes appearing on television or elsewhere in the madia. However, I shall certainly make the noble Lord's views and the views of several of your Lordships who have spoken this afternoon, known to my right honourable friend. I hope that we might be able to make progress. I hope that he will accept that it is not in my power, nor indeed in the power of the Government yet, to take the action that he so much desires.
The Marquess bf Salisbury: My Lords, I wonder whether it is possible for the Minister to give some indication of what further steps he proposes to take to curtail the existing spate of violence. We had expressions of regret and appeals last week from the noble Lord and his Minister to the IRA not to continue with the violence. They have clearly not worked. Surely, we are in grave danger at the moment of both sides escalating the violence. It seems to me that the feeling is running very much higher. Surely there are steps which should be taken to try to ensure that the rule of law is carried out all over the Province.
There are steps that can be taken. Having had three sons who have done more than one tour each in the Province, I understand that the security forces could do more if they were allowed to. I wonder whether the Minister could give any indication as to what steps the Government propose to take in this respect.
Lord Lyell: My Lords, I can certainly indicate to my noble friend that my right honourable friend, in conjunction with the General Officer Commanding and the Chief Constable of the RUC, continually take steps to try to reduce this appalling level of violence that has been endemic in Northern Ireland for 20 years.
There is a danger that murders and retaliation will continue. I have nothing further to add, especially today, to the Statement that I have made this afternoon. I stress to my noble friend that the RUC carries out its duties all over the Province. We admire each and every one of its members for carrying out policing duties in situations which all of us have seen on television over the weekend. This is the climate. I
36
should like to pay my personal tribute, and I believe the tribute of all of your Lordships, to each and every member of the Royal Ulster Constabulary and to their families, who share this appalling burden of policing Northern Ireland. Certainly they carry these duties out everywhere. The main security role is carried out by the Royal Ulster Constabulary, and that is the way it will stay under this Government.

Immigration Bill
4.48 p.m.
House again in Committee on Clause 1.
Lord Mishcon Lord Mishcon moved Amendment No. 2:
Page 1, line 6, at end insert ("but the immigration rules shall be so framed that children of parents with the right of abode in the United Kingdom shall be no less free to enter and remain in the United Kingdom than if section 1(5) of the Immigration Act 1971 had not been repealed").
The noble Lord said: I almost feel as though I am about to deliver a sermon, hoping that the congregation will duly assemble.
The noble Lord, Lord Renton, in the course of his remarks on the last amendment said that there were various ways of dealing with the problem of Section 1(5) of the Immigration Act 1971. The first way was to try to keep it, possibly adding to it. That was the purpose of the first amendment which my noble and learned friend Lord Elwyn-Jones moved. That amendment was defeated, but it was by such a small majority, comparatively speaking, that I hope that the Minister and his colleagues will give attention to the views that were expressed through the Lobbies from all sides of the Committee.
We now move on to what the noble Lord, Lord Renton, said was the alternative: that is, whether without repealing it we can look at the provision and see whether there is something which ought to be saved. That is the purpose of the following amendments that I propose with my noble friends to put before the Committee. We are delighted also to have the support of the noble Lord, Lord Bonham-Carter, as I understand it, and of the right reverend Prelate The Bishop of Ripon, whose speech we listened to with such respect. I am sure that goes for the Government Benches as well.
The purpose of the amendment is a "save the children fund" if I may so put it. It is to ensure, whatever the arguments about spouses and dependents, that the children of those who were settled here and who were made this promise under the 1971 Act—and, by children, we are referring only to those under 18—who are in fact still within the purview of Section 1(5).
The Committee may have in mind in that context the statement that was made by the noble Earl. As usual, when he makes a statement it is completely accurate. He said that the children and the others will not be stopped from coming here and the only condition will be that they will have to satisfy certain tests. Quite apart from the question of means of support, one of those tests is the ability to house. On Second Reading I ventured to say to your Lordships that there was here a circle which was indeed a very

37
vicious circle. Anyone connected with housing and local authorities and the methods that they have to adopt will know perfectly well that they will not deal with the possibility of a family which is not here or numbers which are not here. They have to deal with applications on the basis of those children who are here and the size of the family as it is at present within their local authority boundaries. So there will be housing accommodation which may he sufficient for the existing members of the family but not for the children that they want to bring over. I repeat that these are people who have been settled here for many years who will be claiming the right to have their children with them. The answer will be: "You have got the accommodation for the present family. You do not have the accommodation for the one or two children you are seekng to get over here. Therefore, as Section 1(5) of the 1971 Act has gone, the answer must be that you cannot have permission to do it.".
The one principle that I wish to emphasise—as do all those on the Benches which I have the privilege to represent in this amendment, and, I believe joined by Members of your Lordships' House wherever they may he sitting—is the need to have families united. Distant vistas are conjured up from time to time: that Clause 2 covers polygamous marriages, and we must stop polygamous wives coming here even though only 25 of them were applied for last year. The one thing there is no doubt about, especially in view of recent tests which are supposed to be absolutely foolproof, is that there is no reason why we cannot know who is a child of the family.
The question before your Lordships now is whether we should repeal the whole of Section 1(5) or whether we should ensure that those to whom we made this promise can at least get their children in for the sake of family unity and, as I say, for the sake of good citizenship. If the decision of your Lordships in Committee stands that that Section 1(5) be repealed, can we at least save something for the children?
Lord Renton: Before the noble Lord sits down, I wonder whether he can explain the following. His Amendment No. 2 reads:
"but the immigration rules shall be so framed that children of parents with the right of abode in the United Kingdom shall be no less free to enter and remain".
It would clarify the position if he were contemplating that even when the parents are not here and have not exercised their right of abode nevertheless the children shall be let in under his amendment.
Lord Mishcon: If I may say so, the noble Lord, Lord Renton is making a very valid point, as is not unusual. I am taking it for granted in the wording that it is not only a right but a right which is exercised. I think the noble Lord has in mind a rather peculiar position. That the parents have the right of abode and they make the application is one case. If the parents have the right of abode and so not make the application but the children claim the right even though the claim has not been made, that would be a very odd situation. Perhaps I may have to alter this at Report stage to make the principle quite clear. Where there is the right of abode and the parents endeavour to use that right to get the children over here is the case I have in mind.
Lord Renton: First, may I say it really is a joy to listen to the noble Lord. He is so lucid, clear and fair and never seems to refer to a note or an authority. He has the advantage over most of us in that respect. I particularly appreciated what he so kindly said about me when replying to the Government statement on the previous amendment.
Having said that, perhaps I may make this rather silly point. This amendment and each of the next three all start with the word "but". From the point of view of the noble Lords opposite, no doubt they would like all four of those amendments to be added to the Bill to be carried. We should then have four amendments starting with the word "but". That is a matter which could be adjusted.
Now may I use the word "but" and ask, "But what about Amendment No. 2?" Even if one has sympathy with the intention underlying it—and I do not see how one can avoid having some sympathy with it—I wonder whether it is really necessary. If we look at subsection (4) of the 1971 Act, which is not being repealed, it provides for rules regulating the entry of people not having the right of abode and says that those rules shall make provision for admitting,
"dependants of persons lawfully in or entering the United Kingdom".
Therefore, to the extent that Amendment No. 2 applies to the dependants of people already lawfully here, it would not seem to be necessary.
Lord Mishcon: Before the noble Lord sits down, in reading subsection (4) he left out, though certainly not on purpose, the following words, which occur in brackets in subection (4):
"(in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise)".
Quite obviously, the intention of subsection (4) was that these dependants will be subject to conditions which can be laid down. Subsection 1(5) of the 1971 Immigration Act made this right unconditional. That was what I was pleading for. I beg to move.
5 p.m.
Lord Renton: The noble Lord has a valid point. However, my answer is that the words in brackets provide for exceptions to be made in unusual cases where perhaps there has not been a proper clearance from the consulate—as the case used to be, and I think in some instances still is—at the point at which the immigrants, or would-be immigrants, left their own country. To the extent that the children to be admitted are going to join people lawfully already here, and subject to the exceptions covered by the words in brackets—which I think would be rare—a great part of the noble Lord's amendment is already covered in a law not being repealed.
In this Bill do we wish to go the stage further that the noble Lord has elucidated in answer to the question that I put before he sat down? Do we wish to have arrangements for those cases where the parents have a right of abode, and the children want to come here whether the parents wish them to or not? We are talking of young people under the age of 18. Is this country to be regarded as a sanctuary for children under 18 who have not got on with their

39
families and who think that a good way of getting away from their families is to exploit the parent's right of abode by exercising a right of entry into this country? That is the situation into which this amendment might lead us.
Earl Ferrers: The noble Lord, Lord Mishcon, described the purpose of this amendment as a save-the-children fund. I appreciate the reason that he has put down the amendment. It puts us in difficulty because the amendment permits the repeal of Section 1(5) but it then adds extra conditions. This would create a new category of people who would be entitled to come here freely. The concept of right of abode—and these are the words used in the amendment—means that someone who has this right is free to come and go as he pleases.
All British citizens have the right of abode, and no conditions can be placed upon their entitlement to come here. Anyone who was not born a British citizen, but who has subsequently become one through naturalisation, at the same time automatically acquires the right of abode. Any children born to that person after he becomes a British citizen will themselves be British citizens and will have the right of abode. However, this right of abode does not extend to children who were born before that parent himself acquired the citizenship. If the parent also wants these children to become British citizens and to have the right of abode, he has to take a conscious decision to make the necessary application on their behalf.
The amendment proposes that the children of anyone with right of abode, who do not themselves have the right of abode—perhaps because their parent chose not to register them as British citizens, or for some other reason—should nevertheless be entirely free to come and go to and from this country. The effect would be to create a new category of people who are theoretically subject to immigration control but who, in effect, enjoy many of the benefits deriving from possession of right of abode.
As the amendment is drafted, those affected would continue to enjoy this favourable position throughout their lives. We could be faced with so-called "children", aged 20, 30, 40 or older, who claim a right of entry to this country many years in the future simply because some years earlier one or both of their parents had had that right of abode. It is by no means a compelling argument to say that such people, who have either not been registered by their parents or who have been left abroad for many years at their parents' choice, should be given extra rights of admission over others who are also subject to immigration laws. One either has the right of abode or one is subject to the immigration laws.
The amendment of the noble Lord, Lord Mishcon, would create a new category—a category without the right of abode but whose members were able to enjoy many benefits associated with the right of abode. I do not believe that that would be right.
Lord Hylton: The noble Lord stands at the Dispatch Box producing new difficulties out of his
40
sleeve, or from behind his hat, rather like a conjuror. I feel that the Committee would have very much more sympathy with him if he were to say that the amendment moved by the noble Lord, Lord Mishcon, is a reasonable and proper one and that he would get together with the noble Lord to fine tune the wording if it is not 100 per cent. right at the moment. Can the noble Lord, put himself in that position?
Lord Renton: Will the noble Lord, Lord Hylton, consider the final point that I made? This amendment would allow children of parents living in the Commonwealth—the parents having the right of abode—to come here even though the parents did not want them to do so, and would perhaps be alarmed at their leaving home.
Lord Hylton: It is not for me to speak for the noble Lord, Lord Mishcon, but I thought that he made it transparently clear that he took on that point in the first place and that he was referring to the children of parents who are already legally settled in Britain.
Earl Ferrers: I do not know whether the noble Lord, Lord Hylton, wanted me to say something more. I rather fancy he did. He invited me to say that the amendment of the noble Lord, Lord Mishcon, was an excellent amendment which we would be happy to accept, subject to a little redrafting. I am bound to say to the noble Lord, Lord Hylton, that I could not do that for the very reason that I gave him: it creates a new category of people. It alters the effect of right of abode. The repealing of Section 1(5) has nothing to do with the right of abode. The immigration rules contain very generous provision for the admission of children in a whole range of circumstances, subject primarily to the requirement that the child's parent should be able to show that there is adequate support and accommodation for the child. This is not an unduly onerous requirement. It is one which is as much in the interest of the child as in that of immigration control. It can hardly be in the child's interest that he or she should be brought to the country, if when he or she arrives here there is nowhere for the family to live and no means of support available. It would not be easy to incorporate this amendment because, as I have told the Committee, it creates a new category.
The Lord Bishop of Ripon: I am finding a little difficulty in following the Minister because I do not see from where this new category comes. The wording of the amendment states that,
"children of parents … shall be no less free to enter and remain … than if section 1(5) … had not been repealed".
In other words, the situation for them remains as it has always been. I cannot see from where this new category is springing. Therefore, I think that we return to our original arguments. This is about the bringing together of families, in particular those who are affected by the situation where housing is not available. There are a good many families where, since not all the children are present, the house available for the family is not sufficient for the larger number, but it is for the smaller number. There is no

41
way in which more children can come into the country because they are not eligible for larger housing until they are present in this country. That is the Catch-22 situation to which Members referred in the debate at Second Reading. The intention of this amendment is to overcome that situation. I am confused by the argument put forward by the Minister.
Lord Mishcon: With all due respect, I do not think that the noble Earl would wish to leave this amendment in a purely negative way. As the right reverend Prelate has said, we are dealing with those people who were previously covered by Section 1(5) of the 1971 Act. In spite of assurances and undertakings, and their decision to put this issue in statutory form, the Government decided that that provision should be repealed. The repeal means that those who were settled as defined in theAct will no longer have the benefit of that subsection. I am trying to save the children from being subject to that repeal and that is all that the amendment asks.
The noble Lord, Lord Renton, said—as he is entitled to say—that in strict accordance with the wording of the amendment, one could have children under the age of 18 applying to come to this country but who do not wish to be with their parents and whose parents do not wish to have them. From any part of the Commonwealth they could argue that they have proof of the fact that their parents comply with the provisions of the 1971 Act and are deemed to be settled here, and that they are subject to Section 1(5) of the 1971 Act. I admit that that extraordinary situation had not occurred to me. It is possibly an academic point but it has been made quite validly.
In answer to the noble Lord, I said freely and frankly that I did not intend the amendment to cover the children of parents who do not want them. This is the Committee stage of the Bill and I am fighting for the principle of admitting those children whose parents want them here to unite the family and who would previously have been protected under Section 1(5) of the 1971 Act. If at the Report stage an amendment is required to cover that contingency which the noble Lord, Lord Renton, properly brought to the attention of the Committee, I shall be more than willing to alter the wording so that that principle is complied with.
The noble Lord, Lord Hylton, made a remark which I hoped would meet an answering chord in the noble Earl's mind. It was that this is obviously a worthy principle; worthy of any humane government and of any government that wish to produce the kind of social conditions which we all want in this country. The noble Lord also said that, while conceding that principle, although the Minister may consider that there is something wrong with the wording—and there is no question of admitting a new group of people and circumstances; I am trying to save something from the total repeal in order to help the children—perhaps he can say that he sees that a case has been made out for trying to save the children from exemption from the privileges of Section 1(5) of the 1971 Act. In that case, I would respond
42
immediately by saying that if something can be done between now and the Report stage to help the children, I shall not now press the matter to a Division. I invite the noble Earl to agree to that appeal from the Cross Benches out of sheer humanity.
5.15 p.m.
Earl Ferrers: I am in some difficulty. I should love to respond to the appeal of the noble Lord, Lord Mishcon. However, he knows that Section 1(5) creates a dividing line between what happens to children born before that date and those born afterwards. The right of abode which a parent correctly has is conferred on those children born to that parent after he has accepted the right of abode. I understand the noble Lord, Lord Mishcon, to be saying that that right of abode should also apply to those born before the date but who have not been to this country. One could find oneself in the position of having people coming to this country from the East for the first time and saying "We can come here. Although we have never been here before, our parents had the right of abode. We think that we should have that too".
I do not believe that that is right or reasonable; I believe that it creates a completely new category. I tried to explain that belief but the noble Lord slightly brushed it away saying that that was not intended. In fact, that would be the effect. I shall look carefully at what has been said by Members of the Committee; but it would be wrong for me to give the impression that I have misinterpreted the amendment because I do not believe that I have done so. The noble Lord appears to wish to preserve the right of all children who at present benefit from Section 1(5). That would not be acceptable because such children would be placed or retained in a privileged position in comparison with the children of Commonwealth citizens. We are entering difficult waters, but I shall look at what the noble Lord has said.
Lord Mishcon: I believe that Members of the Commitee will not think me unreasonable in trying to clarify the situation. One is perfectly prepared to try to rescue even a part of the amendment to ensure that positive action is taken. The amendment seeks to provide that those who were permitted entry under Section 1(5) of the 1971 Act shall still be permitted entry if their parents apply for that and if they are entitled, but for this repeal, to have the children here. I am prepared to limit the children to those who are under the age of 18 when the application is made. I am trying to be as reasonable as possible in order to save something from the repeal of this section which I do not believe is to the Government's credit. It does not aid immigration policy which I believe all Members should support on a bipartisan basis. It is, if possible, to turn into good citizens those who are here but who, deprived of family relationships, may turn into citizens who are not good, either because of a sense of grievance or because of the social disability that they have.
Having regard to the limitations which I have put on the amendment, I ask the noble Earl to be good enough to say that he has some sympathy with it and

43
that he will look into the matter to discover whether action can be taken. I shall then withdraw the amendment and not divide the Committee because I believe that to be the wish of the Members.
Lord Hylton: Before the noble Earl replies, will he note that the children about whom we are speaking will already be aged approximately 15. I believe that they had to be born before a certain date in 1973. Therefore we are talking about a very small, limited category of children.
Earl Ferrers: That may well be so but Section 1(5), as we saw earlier, in fact creates divisions within a family. The noble Lord shakes his head but it is true.
Lord Hylton: I do not deny that.
Earl Ferrers: If the noble Lord would wag his head up and down rather than from side to side it would be more obvious what he was indicating. Section 1(5) creates divisions. Where a person comes in who was born before 1973, he is subject to certain requirements and where he is born after 1973 different factors apply. We are only repealing Section 1(5) because of the European Court of Human Rights and a number of other conditions.
This amendment seeks to preserve a distinction and it is not a question of splitting up families. All that is required is that those who are born before 1973 and who have not now taken advantage of the facilities that were open to them should be in the same position as their brothers or sisters who were born after 1973. I do not believe it is a question of splitting up families. I shall consider very seriously what has been said. However, I repeat that I do not think it would be reasonable to say that there is a clear reason here for continuing a distinction.
Lord Pitt of Hampstead: There is a real issue here because again we must go back in time. Many of the children about whom we are talking are the children I mentioned earlier who are on the Indian subcontinent and who are trying to come here, but the officers have been denying that they were the children of the people of whom they claim to be the children. We now have an advance in that. Because of the DNA test it can be proved conclusively that they are those children. We want to preserve the measure so that those children can now come here.
What is more, it is necessary to carry that out in this way because otherwise we are failing the parents who were living here when the 1971 Act was passed and who were promised that they would be allowed to bring in those children. There are many such people. It is not that they were not trying to do that. They were living here and were trying to bring their children here. All sorts of arguments have been put forward that the children were not really their children, but there is now a possibility of proving beyond any doubt that they are those children, and we want them to be able to bring their children here.
The reason why Section 1(5) matters is that, if those children are brought here under any other
44
condition and if it so happens—and it can happen—that the father has been down on his luck, has worked in low-paid jobs (which happens quite frequently) for 15 years, has now lost his job, is unemployed, is receiving unemployment benefit, housing benefit and supplementary benefit, and if in fact the house in which he is living is not large enough for the children, then he will have difficulties. However, if we safeguard the rights by saying that it should not be any more difficult than it was before 1973, he is safeguarded. Even though we may repeal Section 1(5), we have made it possible for those children to join their parents.
I wish the Government would give some thought to those matters. It is all very well to say that there is a discrimination here; of course there is. Any time a line is drawn, those who are above the line have the rights and those below do not. The Government are saying that to equalise the matter the rights should be taken away. However, taking away the rights has certain consequences which could be unpleasant. Therefore we say—and for the moment I am assuming that Section 1(5) is repealed—all right; let us see how we can safeguard those children. In effect the point of the noble Lord, Lord Renton, could have been met by a clause stating:
"so framed that the children of parents with the right of abode in the United Kingdom whose parents have applied to have them join them in the UK".
That provision could have been included in the clause and that would have restricted the matter. There are ways and means of meeting this point. Therefore I wish the Government would look at the matter in that way and not keep deliberately putting obstacles in the way of uniting those families.
Lord Bonham-Carter: There are two points which the noble Earl, Lord Ferrers, made which will arise again and again unless we deal with the matter at this moment. He speaks as though the worst thing in a Bill of this kind is an anomaly and that an anomaly is something which must be abolished at the first opportunity.
I tried to argue earlier that nationality Bills and immigration Bills inevitably create anomalies between different types of person. The Nationality Bill 1981 creates a distinction between those born before 1983 and those born after 1983. That is done consciously and deliberately. The Immigration Bill 1971 creates an anomaly between those born before 1971 and those born after 1971. That is also done absolutely deliberately and consciously. Therefore, it is not very convincing to say that something must be stopped because it is an anomaly, as if that were a sufficient reason in itself. A better reason than that is needed to justify depriving people of rights which they had hitherto.
The noble Earl then goes on to say that it is not a question of splitting up families. I agree that it is not a question of splitting families but the point about the immigration rules which applied to those born after 1971 but not to those before 1971 is that they were designed to make it more difficult for those people to come here and have made it more difficult for families to unite. Therefore let us not become involved in a

45
terminological dispute about splitting or not splitting.
As I understand it, this amendment seeks to try to reinstate rights which the repealing of Section 1(5) have taken away. It tries to mitigate the consequences of that and, in particular, tries to mitigate those consequences by removing obstacles which have since been imposed on the unification of families. Those are the issues which this amendment tries to rectify.
Earl Ferrers: The noble Lord, Lord Bonham-Carter, said that we should not use the expression "splitting or not splitting". I do not want to be like the proverbial schoolboy, but I did not start that. We were told that the Government were splitting families. The noble Lord says that we are depriving people of rights. The position is that if you have a right of abode, you have a right to come and go. If you are a British citizen, that right goes to the child of that marriage automatically. The problem here is what happens before 1973.
It is not a question of whether children should be able to come and go, but Section 1(5) enables the children of boys who could have been aged one in 1973 to come here but those children might not even be born now. The noble Lord, Lord Bonham-Carter, cannot say that that was what was intended in 1971. Everyone knows that that proviso was included in the 1971 Act in order to allay the concern of those people who were quite rightly concerned and were then resident in the United Kingdom.
It is wrong to say that we are, to use the words again, splitting families, because we do not accept that the children born here of boys (not of girls!) who were aged one in 1973 can come here—and those children are not yet born! Are we to be accused of acting unreasonably when we say that in our view that is extending the rights of entry into this country too far?
Lord Mishcon: It is with deep regret that I listen to the noble Earl. Our approach was to ask him to do something to save circumstances from arising after the repeal of Section 1(5) of the 1971 Act and to do it for the sake of the children and, I repeat, uniting members of the family.
I invited the noble Earl—and I hope I did so in respectful language—at least to say that the Government have some sympathy in this and will consider whether there could be a meeting of the ways. He used certain words from which I hoped to extract a promise to do that very thing. I am afraid that I did not get the response from the words he used that I was seeking to evoke.
Earl Ferrers: May I get one point absolutely clear? Is the noble Lord saying that I should go back and consider whether it is correct to give rights to children who are not yet born but who may be born to children who might have been aged one in 1973? Is that what he wants me to consider? If it is, I am bound to say that, in fairness, I cannot. However, I shall consider all that has been said in case I am wrong.
Lord Mishcon: What I am asking the noble Earl to do—and I should like to be precise in my language—is this. I am saying that children who had certain rights, together with their parents, of being united are being robbed of those rights by a total repeal of subsection (5). I am asking the noble Earl whether he is prepared sympathetically to consider some limitation of that repeal so that some rights remain for children who otherwise would have been protected by subsection (5). I do not ask it under this amendment for spouses or for any other relations or dependants but purely for the children.
I ask the noble Earl, in all solemnity and still with some amount of optimism, to at least be prepared to consider whether the Government can meet that requirement, not necessarily in totality but to come some way down the road with some sort of offer to save for some of those children the benefit they had under the old subsection. If the noble Earl merely says that, I will withdraw the amendment. If he cannot say that, he gives me no alternative but to take a certain course.
Earl Ferrers: I feel as though I am about to go to the execution block when the noble Lord says that. I can only say to him that I shall consider what has been said. However, the noble Lord asks me to consider giving certain rights to people who have had certain rights removed from them. We are repealing a certain section of the 1971 Act and it is repeal of some importance. Therefore, I could not say to the noble Lord—no, I could not—that I agree there is something we will do. What I am prepared to do, if the noble Lord finds it of satisfaction, is to say that I shall consider what has been said but without any undertaking to agree with it.
Lord Mishcon: I take it for granted that the noble Earl and the Government will always consider what has been said in this Committee. I am afraid that gets me nowhere and with great reluctance I ask that the opinion of the Committee be taken.
5.34 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 89, Not-Contents, 132.

DIVISION NO. 2

CONTENTS

Airedale, L.

David, B.

Ardwick, L.

Davies of Penrhys, L.

Aylestone, L.

Donaldson of Kingsbridge, L

Barnett, L.

Donoughue, L.

Basnett, L.

Dormand of Easington, L.

Beaumont of Whitley, L.

Elwyn-Jones, L.

Birk, B.

Ennals, L.

Blackstone, B.

Evans of Claughton, L.

Bonham-Carter, L.

Ewart-Biggs, B.

Bottomley, L.

Falkender, B.

Briginshaw, L.

Fisher of Rednal, B.

Bruce of Donington, L.

Gallacher, L.

Callaghan of Cardiff, L.

Galpern, L.

Carmichael of Kelvingrove,

Graham of Edmonton, L. [Teller.]

Carter, L.

Cledwyn of Penrhos, L.

Grey, E.

Cocks of Hartcliffe, L.

Hampton, L.

47

Hanworth, V.

Mulley, L.

Harris of Greenwich, L.

Nathan, L.

Hatch of Lusby, L.

Nicol, B.

Heycock, L.

Northfield, L.

Houghton of Sowerby, L.

Oram, L.

Howie of Troon, L.

Peston, L.

Hughes, L.

Phillips, B.

Hylton, L.

Pitt of Hampstead, L.

Irvine of Lairg, L.

Ponsonby of Shulbrede, L.

Irving of Dartford, L.

Prys-Davies, L.

Jacques, L.

Rea, L.

Jay, L.

Ripon, Bp. [Teller.]

Jeger, B.

Serota. B.

Jenkins of Hillhead, L.

Shackleton, L.

John-Mackie, L.

Stedman, B.

Kilmarnock, L.

Stewart of Fulham, L.

Leatherland, L.

Stoddart of Swindon, L.

Listowel, E.

Taylor of Blackburn, L.

Llewelyn-Davies of Hastoe, E

Taylor of Mansfield, L.

Lovell-Davis, L.

Tordoff, L.

McCarthy, L.

Turner of Camden, B.

McGregor of Durris, L.

Underhill, L.

Mackie of Benshie, L.

Wallace of Coslany, L.

McNair, L.

Wedderburn of Charlton, L.

Manchester, Bp.

Whaddon, L.

Mason of Barnsley, L.

Williams of Elvel, L.

Mishcon, L.

Willis, L.

Molloy, L.

Young of Dartington, L.

NOT-CONTENTS

Alexander of Tunis, E.

Hardinge of Penshurst, L.

Ampthill, L.

Harmar-Nicholls, L.

Arran, E.

Havers, L.

Auckland, L.

Hertford, M.

Bauer, L.

Hesketh, L.

Beaverbrook, L.

Hives, L.

Belhaven and Stenton, L.

Holderness, L.

Beloff, L.

Home of the Hirsel, L.

Belstead, L.

Hooper, B.

Bessborough, E.

Hylton-Foster, B.

Blake, L.

Kimball, L.

Blatch, B.

Lane-Fox, B.

Boyd-Carpenter, L.

Lauderdale, E.

Brabazon of Tara, L.

Layton, L.

Brougham and Vaux, L.

Long, V.

Buckinghamshire, E.

Lurgan, L.

Butterworth, L.

Mackay of Clashfern, L.

Caccia, L.

Macleod of Borve, B.

Cameron of Lochbroom, L.

Manton, L.

Campbell of Croy, L.

Margadale, L.

Carnegy of Lour, B.

Marley, L.

Carnock, L.

Marshall of Leeds, L.

Clinton, L.

Merrivale, L.

Colville of Culross, V.

Mersey, V.

Constantine of Stanmore, L.

Monson, L,

Cottesloe, L.

Mottistone, L.

Cowley, E.

Mountevans, L.

Craigavon, V.

Mowbray and Stourton, L.

Craigmyle, L.

Moyne, L.

Crawshaw, L.

Munster, E.

Croft, L.

Napier and Ettrick, L.

Cross, V.

Nelson, E.

Cullen of Ashbourne, L.

Newall, L.

Davidson, V. [Teller.]

Norrie, L.

De Freyne, L.

O'Brien of Lothbury, L.

Denham, L. [Teller]

Orkney, E.

Derwent, L.

Oxfuird, V.

Digby, L.

Pender, L.

Dilhorne, V.

Penrhyn, L.

Donegall, M.

Peyton of Yeovil, L.

Dundee, E.

Polwarth, L.

Eccles, V.

Portsmouth, E.

Eden of Winton, L.

Rankeillour, L.

Ellenborough, L.

Reay, L.

Elliott of Morpeth, L.

Renton, L.

Ferrers, E.

Renwick, L.

Glenarthur, L.

Rodney, L.

Gray of Contin, L.

Romney, E.

Greenhill of Harrow, L.

St. Davids, V.

Greenway, L.

Salisbury, M.

48

Saltoun of Abernethy, Ly.

Teynham, L.

Sandford, L.

Thomas of Gwydir, L.

Sempill, Ly.

Thorneycroft, L.

Shannon, E.

Thurlow, L.

Sharpies, B.

Torrington, V.

Skelmersdale, L.

Trafford, L.

Stevens of Ludgate, L.

Tranmire, L.

Stockton, E.

Trumpington, B.

Strange, B.

Tryon, L.

Strathcona and Mount Royal, L.

Vaux of Harrowden, L.

Waldegrave, E.

Strathspey, L.

Ward of Witley, V.

Sudeley, L.

Weir, V.

Suffield, L.

Wise, L.

Swinfen, L.

Wolfson, L.

Terrington, L.

Young, B.

Teviot, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.43 p.m.
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 3:
Page 1, line 6, at end insert ("but the immigration rules shall be so framed that men shall be no less free to enter and remain in the United Kingdom than women seeking to enter or remain in accordance with the immigration rules in force at the passing of this Act").
The noble Lord said: I do not wish to move this amendment since it seems to deal with exactly the same principle dealt with under Amendment No. 1, upon which the Committee has already registered its vote.
[Amendment No. 3 not moved.]
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendments Nos. 4 and 5:
Page 1, line 6, at end insert ("but the immigration rules shall be so framed that British citizens and other persons settled in the United Kingdom shall be able to exercise in the United Kingdom the right to marry and to found a family guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms").
Page 1, line 6, at end insert (" but the immigration rules shall be so framed that members of the family of persons settled in the United Kingdom, subject to subsection (2) below, are no less free to enter and stay in the United Kingdom than the members of the family of European Community nationals entitled to enter or remain in the United Kingdom by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.
(2) Subsection (1) above shall not prohibit the immigration rules from requiring the family members to obtain entry clearance and leave to enter the United Kingdom.").
The noble Lord said: I propose to take a certain course as regards the next two amendments, and with the leave of the Committee I should like to explain. I believe that it may be useful between now and Report stage to have some conversations—however difficult they may be—between myself the Minister and others on our Benches who are concerned with this Bill and people elsewhere. I feel that no useful purpose would be served at Committee stage in moving the rest of the amendments under this clause. In those circumstances, I propose not to move them.
[Amendments Nos. 4 and 5 not moved.]
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Mishcon: Here again, I believe that if a debate took place I should be saying exactly the same things all over again. That does not seem to me to be a useful

49
way of spending the time of the Committee on an important Bill of this kind. I do not propose to oppose this Question.
Clause 1 agreed to.
Clause 2 [Restriction on exercise of right of abode in cases of polygamy]:
On Question, Whether Clause 2 shall stand part of the Bill?
Lord Mishcon: I propose to make a short comment as I believe was made in the course of Second Reading debate. This is a provision where we presumably express our horror at polygamous marriages wherever they may take place and even if they are perfectly proper, legal and respectable in the countries in which they occur. I hope that in dealing with a situation which involves a maximum of 25 cases each year, the Committee, in passing this clause, will have in mind an improvement in our own moral standards in this country relating to marriage and divorce and many such similar issues. If we can, with sanctity, pass this clause I hope at least it will have that effect.
Lord Hylton: At Second Reading I suggested to the Government a basis on which they could discriminate fairly against polygamous wives if that is what they want to do. I suggested that they should make it impossible for new wives to enter this country—that is, wives who have not been married previously to the person in question. However, the second or third existing marriages of people already here could be admitted (as they might well be entitled to) under Koranic Law.
Lord Renton: I hope that none of the Members of the Committee has any doubts about this clause despite the fact that not very many people are affected by it. If people want to have the advantage of coming to live in our civilised society, I believe they should accept our standards. They are the standards of those who practise the Christian and Jewish religions. As regards the Moslem religion, only today I was told by a High Court judge from Pakistan that bigamy and polygamy are now unlawful in Pakistan unless the first wife gives her consent to the marriage to one other woman. It is fact that among Hindus and Moslems it has become gradually the custom that there should be monogamy among all the better Hindus and Moslems. That is a good thing that we can record.
Difficulties have been caused with the occasional polygamous marriage in this country. There was a case reported in the press over the weekend of a man from Bangladesh. He had two wives one of whom was aged 43 and the other 26. Between them they have 11 children and their ages range from just a few weeks to 19 years of age. They had to be accommodated by the local council. The man was out of work. The local council had to spend, it was said, £40,000 to enable them to have a house which was large enough. If we did not pass this clause then we would have that kind of problem magnified fairly often, I believe, despite the fact that polygamy is on the way out.
Lord Bonham-Carter: I wonder whether the Committee can allow that serious speech by the noble Lord, Lord Renton, to pass without comment. There is a high-and-mighty attitude that polygamy is awful and that we in this country have made it unlawful. On the other hand, multiple marriages are common and increasing; cohabitation between unmarrieds is increasing and common; one-parent families are increasing in number and are common. If we are to pretend that we are so superior to the 25 people a year who may come here—the noble Lord admits they are a diminishing number for economic as well as religious reasons—I believe we are carrying the popular idea of English hypocrisy rather too far.
Earl Ferrers: The noble Lord, Lord Mishcon, made a brief intervention covering polygamy and the moral standards of this country. I do not want to add a great deal to what has been said other than to say that if we are to have immigration—and we all agree that we are—we must have certain rules. The fact is that polygamy runs counter to a monogamous society such as ours. In other countries polygamy is acceptable but in this country it has not been. When certain people come to this country it is reasonable to say to them in relation to ordinary domestic relationships that they can come in but may bring only one wife.
My noble friend Lord Renton was given a certain amount of stick by the noble Lord, Lord Bonham-Carter, for referring to a certain incident about which there was a report in the newspapers at the weekend. I saw the article too. As my noble friend quite rightly said, the gentleman concerned had two wives and 11 children. In order to accommodate his second wife the council had to spend £40,000 on increasing his accommodation. The article asked what would happen if he had a third wife. There is a limit to what one can expect local authorities and government to do and society to accept. In a monogamous society one wife is sufficient.
Clause 2 agreed to.
Clause 3 [Proof of right of abode:]
Lord Mishcon Lord Mishcon moved Amendment No. 6:
Page 2, line 42, at end insert ("A person refused entry as a result of not being able to produce such a document shall have a right of appeal at the hearing of which he shall be entitled to be present.").
The noble Lord said: I hope to be brief in regard to this amendment. The Committee will appreciate that Clause 3 deals with the right of an immigration officer to see that somebody whose papers are not in order can be immediately required to leave these shores without a right of appeal. This amendment asks that he shall have a right of appeal at the hearing of which he shall be entitled to be present. It is one of those amendments which speaks for itself.
In our judicial system we always value the right of somebody upon good grounds to be able to appeal against a decision so that he has a right to be heard. The Committee will appreciate that it is an immigration officer who has the right to order the person to leave immediately; and that there can be many cases in which either somebody has lost a

51
document or has had it stolen from him. There may be circumstances in which for good reasons the papers are not available. The Committee would not want to have such a decision made against a person endeavouring to enter this country, especially with all the liabilities on carriers under the Immigration (Carriers' Liability) Act which we recently passed.
Immigration officers carry out a difficult task, mostly to the best of their ability and mostly with mercy. I do not think that the Committee would want to enact a provision whereby somebody had no right to make representations thereafter if the papers were not in order where there appeared to him to be a right to argue that he had the nationality, that his papers did exist or whatever it might be. I beg to move.
Lord Renton: I appreciate the noble Lord's point but I wonder whether it has occurred to him that we have an elaborate and for the most part very efficiently run administration for enabling would-be immigrants to prove their right of abode before leaving the countries in which they were living. The arrangements are expensive. We bear most of the expense but would-be immigrants make a contribution. Generally the arrangements work well.
The noble Lord is saying that, in spite of having had the opportunity to establish their right in their own country, whether or not they have used it, and whether or not they have failed, they should nevertheless come here even though the unfortunate immigration officer has crowds of people to see off an aeroplane. If the officer says, "No, you don't seem to have the documentation", the noble Lord suggests that people should then have the right of appeal in this country. I make the simple point that if they did not have the documents in their own country, are they any more likely to have them when they arrive here? Should not people be encouraged to take the fullest advantage of the good arrangements that we make for them to prove their right before they leave their own country?
Lord Bonham-Carter: This is an important amendment. To remove a right of appeal is a serious step. The situation described by the noble Lord, Lord Renton, is not quite as idyllic as he would have us believe. The people to whom the delays mainly occur are in Bangladesh. A few years ago the delay before getting a first interview was 18 months. The delay is now about eight months, although DNA may change that. After the first interview there are further delays. During the Second Reading debate I asked the noble Earl, Lord Ferrers, whether it was the case that 100,000 letters were unopened at Lunar House. I have since discovered that there are 150,000 letters. When I last inquired, no letter that arrived in December had been opened. The beauty of our administration therefore is something which is difficult for others to comprehend. People have come here after a decision taken earlier because that is the best way in which they can overcome the delays.
The second factor is that our system of sifting in Bangladesh is not always very accurate. In 1985, 50 per cent. of all Bangladesh is applicants were refused
52
permission to enter. Of those who appealed—those who used the procedure which is being abolished—one-third were found to have been refused entry wrongly. In the face of those facts the amendment moved by the noble Lord, Lord Mishcon, is self-evidently necessary.
Earl Ferrers: I agree with my noble friend Lord Renton when he says that it is reasonable for people who come to this country first to find out whether they can come here and to clear their documents. The noble Lord, Lord Bonham-Carter, said that we were removing the right of appeal. That is not so. The right of appeal is there, but the appellant should not necessarily be in this country for that appeal.
The proposed amendments do not seek to remove the requirement contained in Clause 3(1), which sets out perfectly clearly the documents required of anyone who seeks admission on the basis of their right of abode. If a passenger turns up without those documents it is perfectly proper to expect that person to pursue any appeal from abroad. What does he do? He seeks to come into the country. The immigration officer asks where his documents are, and he says, "I do not have any". It is perfectly reasonable for the immigration officer then to say. "You can't come into this country without any documents. You may say that you are somebody's wife or child but you do not have those documents".
Unless we have a completely open door it is reasonable to say to that person that he ought to return to his country and ensure that be obtains the relevant documents before coming here. Having said that, it will always be open to the immigration officer to exercise his discretion; for example, in the case of a passenger whose documents have been lost or stolen. That is the present position and it will continue.
The noble Lord, Lord Bonham-Carter, complained about delays and implied that they were intolerable. I am sure that he realises that there is an enormous number of applications for immigration purposes. Between November 1985 and October 1986 when the requirement for Bangladesh was introduced, some 1,500 mothers and children had arrived in this country seeking admission on the basis of unsubstantiated claims to citizenship. It is that very loophole that we seek to close by the provisions contained in Clause 2.
When the noble Lord says that there is too much of a delay, I wonder whether he realises that in the immigration department of the Home Office there are in fact 3,200 people who are dealing with such applications. Furthermore, it costs about £60 million per year, of which nearly £1 million goes to the United Kingdom Immigrants Advisory Service in order to help it to assist people in their appeals against refusal decisions. The appellate authorities alone cost £2·5 million. Therefore I do not think it is fair for the noble Lord to complain about a provision which says that people cannot come into this country before they have cleared the wires and at the same time to say that we have not enough people dealing with immigration.

53
Immigration will always be a difficult issue. There will always be many people involved in seeing what is right and what is not; who should come into this country and who should not. To suggest that people arriving in this country from another without any documents should be allowed to stay until their appeal is heard is pushing the boat a little bit too far.
6 p.m.
Lord Mishcon: With great deference I do not think the Minister really knows what happens in the Home Office. I am talking about the immigration department. There are other departments in the Home Office for which the noble Earl is responsible and I am sure that he knows everything that ought to be known in their regard, but he is not responsible for immigration.
I was not going to give this personal example when we are dealing with documents which may be requested from outside, but he may wish to know the following. In regard to an immigration matter which was rather urgent I wrote to the Home Office in July of 1987 sending original documents. I received no acknowledgment to my letter. Since that time I have written on no fewer than five occasions between July 1987 and March of this year and have still not received any acknowledgment, although I have sent copies of my previous letters to the immigration department because I am rather worried about the original documents, apart from anything else.
In all sincerity I have to say to the Committee that an impossible situation has been created. If that be true—obviously I would not stand at this Dispatch Box and give those facts unless I had every reason to bring them to the Minister's and the Committee's attention—how can we possibly say that an immigration officer can send people back to their homelands, which may be thousands of miles away without any right of appeal and then say with sincerity, "Well, they can appeal from there"? What about the hardship involved? In regard to this clause no one is saying that there should not be the right to debar people whose papers are not in order from staying in this country for any good reason; we are not saying that. In those circumstances we are merely giving the right of appeal. Therefore I ask the Committee to support the amendment.
Earl Ferrers: I wonder whether I heard the noble Lord correctly. He said that I did not know what was going on in the Home Office. I am bound to say to him that I do not know about every letter that is written. When he says that he has written a number of letters that have not been answered I must say that I am surprised, but I shall look into the matter.
However, he then went on to use the aforementioned example as an argument for what trouble and chaos there is within the immigration department of the Home Office. As I have already said, recently 1,500 additional people sought to come into this country without any papers at all. In this part of the Bill we seek to say, "You ought to ensure before you come here that you have the right of entry". I do not think that that requirement is unreasonable. One cannot say that the Home Office
54
is swamped with work and therefore cannot anwer letters and then at the same time say that it is perfectly all right for another 1,500 people to enter the country.
The noble Lord, then went on to say that we are taking away the right of appeal. I must stress that we are not taking away the right of appeal. The appellant still has the right of appeal, but what we say is that it is unreasonable to allow all those people to come to this country without the necessary documents and then to sit here and wait for their appeal to be heard, because inevitably that process will take a long time.
Lord Mishcon: I am afraid the noble Earl may have misunderstood me and if it is a want of clarification on my part then I apologise to him. I made the point that in some instances people writing from abroad to the Home Office immigration department for documentation to enable them to enter the country perfectly properly are having difficulties in receiving replies—I imagine in the same way that I have. I did not of course address those letters to Ministers; they were addressed to the immigration department of the Home Office. Indeed, the last letter I wrote—still unanswered and unacknowledged—I specially headed "For the personal attention of the Senior Officer in charge of immigration", or words to that effect. However, I have still not received an answer. The Committee will appreciate that this may well be the lot of people writing from abroad to try to obtain confirmation of matters which would satisfy an immigration officer. That was the point I was trying to make; not the chaos at the Home Office.
Regarding the right of appeal, in what I said I acknowledged that of course there is a right of appeal if you are sent away from these shores. However, my point was in connection with those people who have already been mentioned—the ones we all know about. If we say to them, "You go back thousands of miles from whence you came and then write a polite letter saying that you wish to appeal", we are placing them in an impossible situation. One would imagine by that time that every penny that the person had would already have gone down the drain and then of course he would have to satisfy the Home Office that he had sufficient means left to return to this country. That is a completely unjust situation. We are asking for the right of appeal but obviously if the appeal is turned down that person must leave forthwith. We also ask that that right of appeal should be accompanied by a right to conduct such an appeal on these shores; if it fails I accept the fact that that person has to leave immediately.
Lord Renton: Let us suppose that the person concerned has done his or her best in the country of origin and has hopefully produced all the documents that he or she could lay their hands on. Is the noble Lord suggesting that, after the case has been carefully considered by our representatives, such a person should still be allowed to enter this country with no better documents than he had before and then to have a right of appeal?
Lord Mishcon: I cannot deal with every case, and then say that a person should or should not have a right of appeal. There will be deserving cases, and I

55
have tried to give instances of them. There will be undeserving cases. I hope that the deserving cases will win their appeals. The undeserving cases will lose their appeals. People will know in advance that if they do not satisfy the immigration officer and the appellate tribunal they will have to leave immediately. Where is the hardship from the Government's point of view, as against the hardship of the person whom I am trying to put before the Committee as a deserving case?
Lord Renton: The hardship may not be that of the Government. The hardship may be that of the British people, because as I think the noble Lord, Lord Bonham-Carter, said, in Bangladesh there are 100,000 people waiting to have their cases heard. I wonder whether he would explain what he said.
Lord Bonham-Carter: I made no estimate of the number of people who were in Bangladesh waiting to come in. I think I am right in saying—it has been said by some people—that the figure is 9,000. I do not know where that figure came from. I did not mention 100,000. I do not know where the noble Lord found that figure.
Lord Renton: I apologise to the noble Lord. I obviously misheard him. One does not always get things absolutely right across the Chamber.
Earl Ferrers: If I may interrupt, my noble friend did not mishear. He heard the noble Lord, Lord Bonham-Carter, perfectly. He said that there were 100,000 letters, but his criticism was that the letters were in the Home Office.
Lord Bonham-Carter: I was informed that there were 100,000 letters in the Home Office. Subsequently I was informed that the figure was 150,000. They are not all applicants. Like the noble Lord, Lord Mishcon, they may have had to write five, 10 or 15 times and have never received an answer.
Lord Renton: If there are 100,000 or 150,000 letters in the Home Office, they are presumably a reflection of the desire of 100,000 or 150,000 people, or a portion of them, to come here. That is mass migration.
Earl Ferrers: Whether it is 100,000, as it was last week, or 150,000, as it is this week—it may be 200,000 next week if the noble Lord, Lord Bonham-Carter, makes a speech—I am not prepared to comment on the accuracy of the figures. He is right. There is enormous pressure on the Home Office immigration department. The noble Lord, Lord Mishcon, said that he had not received an answer to his letters. I regret that fact. I know that this was not the purpose of his raising the point, but if he would be kind enough to send me a copy of the last letter that he sent, I shall see that it is followed through, and I shall find out what has happened. However, I accept that that is, as the lawyers would say, de minimis to the noble Lord's argument.
56
The noble Lord was concerned with seeing that people who come from abroad should not be sent back. Those abroad who wish to come here do not write to the Home Office. They should first approach the entry clearance officer at the High Commission of the country in which they are living. That is where the application should be made. That is where the confirmation of their right to enter should come from.
If people come here, and are discovered not to have the appropriate documentation, the appeal is held in this country. I think that the noble Lord, Lord Mishcon, was under a misapprehension. The appeal is not held in another country.
Lord Mishcon: No.
Earl Ferrers: I thought that the noble Lord said that it was right that there should be an appeal in this country. I seem totally to have horrified him. I thought he said that it is right that an appeal should be held in this country. An appeal is held and will be held in this country. There is an enormous amount of paperwork within the Home Office, a great deal of which refers to appeals, and one should say to people: "Get your documentation in order before you come here".
Lord Mishcon: I shall make two rapid points. I shall then have exhausted the Committee's patience, and I shall make no further points. The noble Earl has not covered the case—I know him well enough to know that it would grieve him if he came across it—of a man who had genuinely had his papers stolen from him in the course of a voyage—not an unlikely event, as other people would want papers and would want to use them for a nefarious end—and who heard that an immigration officer did not believe him and sent him all the way back without a right of appeal. I wonder what guilt the noble Earl would feel over the fact that the appeal provisions were not contained in the Bill.
Secondly, I am sorry if I did not make myself clear, but I said that of course I realised that there was a right of appeal. I said that unless the appellant was given the right to conduct it in this country, he would have to go all the way back and make his appeal from abroad. Of course it will be dealt with in the United Kingdom. He would then presumably be so impoverished that he would not be able to satisfy the proper requirement of having sufficient means to maintain himself or his family in this country.
It is purely the right of appeal for which we are asking in the amendment. I hope that the Committee will agree to it even if the noble Earl does not.
Earl Ferrers: At the risk of boring the Committee, the noble Lord, Lord Mishcon, said that he did not wish to make another intervention. Of course I understand the difficulty of the case which the noble Lord has mentioned. He said that a person coming to this country who lost his passport or papers on the way would be turned around. I shall make just two points. First, immigration officers have the right to use reasonable discretion. Of course it may well be, as the noble Lord pointed out in that case, that the

57
discretion is not used; but that is the point of having discretion. Sometimes it goes one way and sometimes another.
One has a great deal of sympathy with such cases, but the noble Lord, as an experienced lawyer, knows that hard cases make bad law.
6.17 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 79, Not-Contents, 121.

DIVISION NO. 3

CONTENTS

Airedale, L.

Jenkins of Hillhead, L.

Ardwick, L.

John-Mackie, L.

Aylestone, L.

Listowel, E.

Beaumont of Whitley, L.

Llewelyn-Davies of Hastoe, B

Birk, B.

Lovell-Davis, L.

Blackstone, B.

Mackie of Benshie, L.

Bonham-Carter, L.

McNair, L.

Botlomley, L.

Manchester, Bp.

Briginshaw, L.

Mason of Barnsley, L.

Brooks of Tremorfa, L.

Milner of Leeds, L.

Bruce of Donington, L.

Mishcon, L.

Callaghan of Cardiff, L.

Molloy, L.

Carmichael of Kelvingrove, I

Mulley. L.

Carter. L.

Nicol, B. [Teller.]

Cledwyn of Penrhos, L.

O'Neill of the Maine, L.

Cocks of Hartcliffe, L.

Oram, L.

David. B.

Parry, L.

Davies of Penrhys, L.

Peston, L.

Dean of Beswick, L.

Phillips, B.

Donoughue, L.

Pitt of Hampstead, L.

Dormand of Easington, L.

Ponsonby of Shulbrede, L. [Teller]

Elwyn-Jones, L.

Ewart-Biggs, B.

Prys-Davies, L.

Falkender, B.

Ripon, Bp.

Foot, L.

Russell of Liverpool, L.

Gallacher, L.

Serota, B.

Galpern, L.

Shackleton, L.

Graham of Edmonton, L.

Stedman, B.

Grey, E.

Stewart of Fulham, L.

Hanworth, V.

Stoddart of Swindon, L.

Harris of Greenwich, L.

Strabolgi, L.

Heycock, L.

Taylor of Mansfield, L.

Houghton of Sowerby, L.

Tordoff, L.

Hughes, L.

Turner of Camden, B.

Hylton, L.

Underhill, L.

Irvine of Lairg, L.

Wallace of Coslany, L.

Irving of Dartford, L.

Wedderburn of Charlton, L.

Jacques, L.

Williams of Elvel, L.

Jay, L.

Willis, L.

Jeger, B.

Young of Dartington, L.

NOT-CONTENTS

Arran, E.

Carnegy of Lour, B.

Auckland, L.

Carnock, L.

Beaverbrook, L.

Clinton, L.

Belhaven and Stenton, L.

Colwyn, L.

Beloff, L.

Constantine of Stanmore, L.

Belstead, L.

Cottesloe, L.

Bessborough, E.

Cowley, E.

Blake, L.

Craigavon, V.

Blatch, B.

Craigmyle, L.

Boardman, L.

Croft, L.

Boyd-Carpenter, L.

Cross, V.

Brabazon of Tara, L.

Davidson, V. [Teller.]

Brougham and Vaux, L.

De Freyne, L.

Butterworth. L.

Denham, L. [Teller]

Caccia, L.

Derwent, L.

Cameron of Lochbroom, L.

Dilhorne, V.

Campbell of Croy, L.

Donegall, M.

58

Dundee, E.

Newall, L.

Eccles, V.

Norrie, L.

Eden of Winton, L.

Onslow, E.

Elliott of Morpeth, L.

Orkney, E.

Faithfull, B.

Pender, L.

Ferrers, E.

Penrhyn, L.

Glenarthur, L.

Peyton of Yeovil, L.

Gray of Contin, L.

Polwarth, L.

Greenway, L.

Portsmouth, E.

Hanson, L.

Rankeillour, L.

Hardinge of Penshurst, L.

Reay, L.

Harmar-Nicholls, L.

Renton, L.

Harvington, L.

Renwick, L.

Havers, L.

Rodney, L.

Hertford, M.

Saltoun of Abernethy, Ly

Hesketh, L.

Sandford, L.

Hives, L.

Shannon, E.

Holderness, L.

Sharples, B.

Home of the Hirsel, L.

Skelmersdale, L.

Hooper, B.

Slim, V.

Hylton-Foster, B.

Stevens of Ludgate, L.

Kaberry of Adel, L.

Stockton, E.

Killearn, L.

Strange, B.

Kimball, L.

Strathclyde, L.

Kinloss, Ly.

Sudeley, L.

Lane-Fox, B.

Suffield, L.

Lauderdale, E.

Swinfen, L.

Layton, L.

Terrington, L.

Lindsey and Abingdon, E.

Teynham, L.

Long, V.

Thomas of Gwydir, L.

Lurgan, L.

Thurlow, L.

Mackay of Clashfern, L.

Trafford, L.

Margadale, L.

Tranmire, L.

Marley, L.

Trumpington, B.

Marshall of Leeds, L.

Vaux of Harrowden, L.

Merrivale, L.

Waldegrave, E.

Mersey, V.

Ward of Witley, V.

Molson, L,

Weir, V.

Mottistone, L.

Whitelaw, V.

Mountevans, L.

Wise, L.

Mowbray and Stourton, L.

Wolfson, L.

Moyne, L.

Wyatt of Weeford, L.

Munster, E.

Young, B.

Nelson, E.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 7 and 8 not moved.]
Clause 3 agreed to.
Clause 4 [Restricted right of appeal against deportation in cases of breach of limited leave]:
6.25 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 9:
Page 3, line 17, at end insert ("or on the ground that he has a spouse, parent or child settled in the United Kingdom and that deportation is not therefore appropriate").
The noble and learned Lord said: Clause 4 has been fiercely condemned by lawyers, by those concerned with civil rights and by those faced with the problems of advising on immigration questions. It involves considerable interference with the right of appeal against deportation. Deportation is an extremely serious matter which can involve the infringement of human and civil rights—for example, the right to family life, the loss of a job and of course the loss of a home. We are dealing with a provision in Clause 4 which gives unprecedented powers to the Home Secretary. Contrary to all the trends in public law, certainly since the 1950s, it gives him pretty well absolute powers. The trend has been to provide checks on the administrative powers of the executive,

59
for instance, in social security and mental health tribunals and in other domains.
I shall also speak to Amendment No. 10. These two amendments seek to mitigate at any rate some of the damage that Clause 4 would create if it became law. After the initial paragraph restricting the right of appeal against deportation in cases of breach of limited leave, the clause provides that a person to whom the subsection applies shall not be entitled to appeal under Section 15 of the principal Act:
"except on the ground that on the facts of his case there is in law no power to make the deportation order".
The amendment which I am moving proposes to add:
"or on the ground that he has a spouse, parent or child settled in the United Kingdom and that deportation is not therefore appropriate".
One would have thought that that was a simple, humane and humanitarian consideration, and I shall be greatly disappointed if the Government do not accept it.
It is proposed that where a person threatened with deportation can show, as the amendment says, that he has a spouse, parent or child settled here and deportation is not therefore appropriate, adjudicators hearing a deportation appeal would be enabled to take into account that fact—namely, the presence in the United Kingdom of close relatives of the person who is threatened with deportation. One can think of many examples of persons who might benefit from that: for instance, a child who has not been allowed to stay here permanently with his mother because she has not been able to prove that she had sole responsibility for his upbringing; or elderly parents not allowed to stay with their children in Britain because they are alleged to have other relatives to turn to in their own country; or spouses refused permission to stay because the breadwinner in the family has become unemployed and the couple are therefore reliant on public funds. In such cases as that it would seem at the very least humane to provide that those concerned can call in aid the availability of the family and the disaster that would flow from a forced division of the family.
I hope therefore that, looking at the matter from the point of view of simple, ordinary, straightforward humanity the Government will feel disposed to accept this amendment.
6.30 p.m.
Lord Renton: Will the noble and learned Lord be so good as to say whether in the context of this amendment the word "child" means somebody under the age of 18 or not?
Lord Elwyn-Jones: I have not given thought to the matter directly but I am content that that should be the case.
Lord Renton: I am much obliged to the noble and learned Lord. On the face of it, when one saw this amendment one naturally had some sympathy with it on humanitarian grounds as the noble and learned Lord has said. But, alas, not all families are well united, even those who come here and settle. Without much exercise of the imagination, one can, for
60
example, imagine a spouse who has behaved badly towards his own family or who has failed to maintain them. He may then go on to commit other crimes. He may not have been in this country for very long. Yet, although that may be a clear case for deportation under the terms of this amendment, as I understand it deportation could not take place.
I remember a case of a married man who was living in this country—one might assume that he was settled here—who took unto himself a mistress and proceeded to murder her. This is a reported case that occurred some years ago. The court sentenced the man to imprisonment for life in this country and at the same time felt obliged to issue a deportation order that would have enabled the Secretary of State instead of holding the man indefinitely in prison in this country to make, after a number of years or perhaps fairly soon, a deportation order and send the man back to his own country.
That to my mind would be a case in which deportation would be fully justified. One could multiply the examples. This amendment would cover even those cases which are entirely without merit. One does not know whether that is the intention of the amendment but it would do so. Therefore I would have very grave doubt as to whether my noble friend could accept it.
Lord Bonham-Carter: I wish to support the amendment which was moved by the noble and learned Lord, Lord Elwyn-Jones. I have listened as usual with great interest to what the noble Lord, Lord Renton, has said. He is in a particularly fanciful and imaginative mood tonight. I listened to one speech after another in which he produced successive rabbits out of a hat. Of course one can produce cases in which deportation is justified. As I understand the amendment—I shall be corrected if I have misunderstood it—it does not state that there are no circumstances under which someone should be deported. It states that people should be allowed to appeal against deportation.
We regard deportation as a very serious step to take against an individual. We regard it as even more serious if that person has a spouse or children and is established and has roots here. But there may be cases in which it is shown that this has to happen.
What we object to is the discretion for deportation being placed in the hands of the Home Secretary alone. That is an absolutely unwarrantable concentration of power, which, as the noble and learned Lord, Lord Elwyn-Jones, has said, runs contrary to all the trends of administrative law this century—something with which the noble Lord, Lord Renton, will be much more familiar than I—which indicate that the appeal system produces better decisions and a better level of justice than systems without such a mechanism. Hence we have industrial tribunals, health tribunals and other tribunals, all of which are there to assist and improve the decision-making process and to allow appeal from the adjudicator.
The general reservation about Clause 4 is that it removes the right to appeal on compassionate grounds. It can only be done on the facts of the case.

61
It is sometimes argued that the adjudicator can take compassionate grounds into account. I must here say that the occasions on which adjudicators do take compassionate grounds into account are extremely rare. The chief adjudication officer, Mr. Patey, has stated pretty clearly that he does not regard that as their function.
It therefore remains that compassionate grounds are largely removed by this clause as a source of appeal. As has, I think, been indicated already, there are many cases in which those grounds should be taken into account. I do not think that there is much that can be added to the self-evident strength of the case which the noble and learned Lord, Lord Elwyn-Jones, has produced, but I wish to remind the Minister that the whole basis of our immigration control system was founded on a report written by the late Sir Roy Wilson, who was an extremely distinguished lawyer and a man with an unmatched sense of justice. He wrote in Cmnd. 3387:
"Given our recommendation in favour of an appeal against exclusion, the case for an appeal against deportation, which involves a much greater interference with a person's liberty, is correspondingly stronger. Most systems of immigration control about which we have information seem to provide a person at risk of deportation with some form of appeal".
I think that if this clause were passed without amendment it would be an extremely retrograde action.
The Lord Bishop of Ripon: My understanding of this amendment is similar to that of the noble Lord, Lord Bonham-Carter—that it concerns the right of appeal. I understood from the speech of the Minister on Second Reading that there was a possibility that certain groups of people could be excepted from the effects of the Immigration Bill as it stands and of the removal of the power to appeal. But I also understood that it was likely that such groups would be those who were asylum seekers or refugees.
This particular amendment seeks not only to establish another group but also to make sure that the category is established in statute and is not reliant simply upon an order of the Home Secretary. I would wish to argue on similar grounds to other Members of the Committee that there is at stake here a question of humanity and the treatment of families.
I shall give what may be regarded as yet another rabbit out of the hat—another illustrative example. This is intended not to be a hard case but to illustrate the kind of case that one might expect to arise in this country—a case which will not merit any consideration if this Bill is passed.
Let us suppose a male student has been here for a year and he meets a woman on his course whom he marries. She is a British citizen, having been born here, and they have two children, both of whom become British citizens. The man has left his passport with the college. The college has failed to make an application to the Home Office for a student extension to extend the student's first degree course to a postgraduate course. The student is therefore an overstayer. The Home Office treats him as such and decides to deport him. He has no appeal on the grounds of the case that he is married with two children. He can appeal only on the facts of the case,
62
which seem to be fairly clear; he is an overstayer and is therefore liable to be deported.
The amendment seeks to put into statute the possibility that such a person may appeal on compassionate grounds as well as on the grounds of the facts of the case. That requirement for a possible hearing of compassionate grounds is important. The noble Lord, Lord Bonham-Carter, has made the point that adjudicators are not normally expected and I believe are excluded by law from taking compassionate grounds into account. Although it has been said by the Home Office that adjudicators occasionally take such grounds into account, it is surely an odd situation which allows the hearing of compassionate grounds to depend upon the particular adjudicator taking the case. Some adjudicators will hear compassionate grounds; the majority will not. The amendment seeks to put into statute form the right of appeal on compassionate grounds and particularly those relating to families.
Lord Irvine of Lairg: Perhaps I may add a word or two. When I heard the objections of the noble Lord, Lord Renton, to the amendment, I was reminded of Professor Cornford's academica cosmographia —there is always logically an infinite number of reasons for saying no to any new and sensible suggestion. The argument put forward by the noble Lord is, when generalised, that a new discretion should never be conferred because it is possible that is could be exercised wrongly.
I should have thought that it is inconceivable that an adjudication officer would exercise the discretion which is intended to be conferred on him by the amendment in any case where there was not either a settled family relationship between the would-be deportee and the spouse, parent or child settled in the United Kingdom, or where there was no current relationship of real ties and affection between the would-be deportee and any of those persons. Surely it is a wise discretion with which to clothe the adjudication officer.
6.45 p.m.
Earl Ferrers: The noble Lord, Lord Bonham-Carter, said that an appeal against deportation should be allowed. Let us be clear on that matter. There is an appeal against deportation. Before such a thing happens, there will have been previous appeals, possibly for the right of extension. Let us also be clear that we are discussing people who have broken the law, for whatever reason. Clause 4 restricts the right of a person to pray in aid at appeal the compassionate circumstances of his case where he has been in the United Kingdom for fewer than seven years. We do not believe that those who have been here for such a relatively short time will have developed sufficiently strong ties with this country as to outweigh the public interest of seeking the deportation of those who, let us face it, have committed a serious offence. They have broken the law and they have stayed in this country against the law.
In the view of the Government, it is perfectly appropriate that the appeals of those with only short

63
residence should be limited to the facts of the case. Family ties, together with any other compassionate circumstances which may be present, will continue to be taken into account before a decision to deport is taken. Clearly there will be some deserving cases in which we should not seek to pursue deportation. Deportation is the very last step. What we are saying now is that those compassionate circumstances cannot be used as an argument in an appeal. The appeal is the matter which we are considering.
The right reverend Prelate gave an example of a person who had overstayed. Perhaps I may follow that with a similar analogy. I referred at Second Reading to the fact that where a person has had his application for an extension of residence refused for whatever reason that person has a right of appeal. The matter will go to an adjudicator. The adjudicator may determine it formally on the basis of the rules and the appeal may be dismissed. The appellant can then appeal again to the Immigration Appeals Tribunal. It may be that the application will again be dismissed because the case does not raise a point of law and the facts are not in dispute. The passenger may be informed that he has no basis for being allowed to stay in the United Kingdom and be advised to leave.
If the passenger continues to refuse to leave, a decision is then taken to deport him and a notice of intention to deport is served on him. That passenger or student has a right to appeal against the deportation order. When the matter gets to that stage, all the compassionate circumstances in the case will be known and the points on which the adjudicator or the appeals tribunal is bound to make its decision are the facts of the case. The question will be whether or not he has broken the law.
We believe that it would be wrong for appellate authorities to be asked to let compassionate matters outweigh the fact of whether the law has been broken. The facts of the case will be known and there will always be the possibility of recommendations being made. When the final order is signed by my right honourable friend, he will of course take into account any compassionate circumstances.
We are saying that there is a right of appeal; but that appeal against deportation, when all the other processes have been gone through, should be on the facts of the case because the compassionate circumstances will be well known.
Lord Mishcon: Perhaps the noble Earl can assist the Committee in this way. One of the difficulties that we face is that on investigation one finds that some adjudicators go into compassionate grounds and make recommendations while others do not. That leads to some confusion as to the rights of adjudicators. Perhaps a solution would be for us not to press the amendment at this stage and for the noble Earl to give consideration to some consistency of ruling as regards adjudicators, as to whether or not one encourages them to make recommendations. If they are permitted to make recommendations, perhaps that could be made universal. If the noble Earl will say that he will look into the position, I do
64
not think that we shall press the amendment. I ask for consideration to be given to such a course between now and Report stage
Earl Ferrers: The noble Lord is deceptively modest in his requirements. Of course I shall consider the matter. There is no inhibition on adjudicators to make recommendations; they are entitled to make recommendations. There is no inhibition on people putting whatever they like in front of an adjudicator. However, when it comes to the final question of whether or not a person is to be deported, it must be the facts which will be the basis on which the adjudicator or tribunal takes a position. I shall look at the points which the noble Lord has made.
Lord Mishcon: I am most grateful to the noble Earl. It is not a question of whether or not adjudicators should be inhibited. There should be a clarification of general practice. However, the noble Earl has said that he will look into the matter. In those circumstances, I believe I am right in saying that my noble and learned friend is prepared to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 10:
Page 3, line 17, at end insert ("or on the ground that he has a well-founded fear of persecution in the country to which he is to be deported on grounds of race, religion, nationality, membership of a social group or political opinion.").
The noble and learned Lord said: Without blowing personal trumpets, this is also a very important amendment because it introduces into consideration of deportation the potential consequences. As an addition to subsection (1), after the words "notice of the decision", it provides for an appeal on the ground that the person concerned:
"has a well-founded fear of persecution in the country to which he is to be deported on the grounds of race, religion, nationality, membership of a social group or political opinion".
The amendment would ensure that adjudicators were able to receive evidence that an appellant was a refugee who should be granted asylum in the United Kingdom. This is an amendment of enormous importance to refugees and I know that there is a very great public concern and interest in the matter. The wording of the amendment reflects the wording of no less than the 1951 United Nations Convention on the Status of Refugees and the protocol to that convention. This country is a signatory to the convention, which prohibits removal of any person to a country or territory where he has a well-founded fear of persecution. That is a well-known term and condition.
Although in some cases an appellant may already have claimed asylum in the course of an earlier appeal against a refusal to vary leave to remain, it is often the case that by the time a decision to deport is made new evidence has come to light or circumstances in the person's own country have changed. In those circumstances an appeal against deportation is the only way in which such matters can be subject to independent scrutiny. There may well be some indication of the Minister's willingness to make an order pursuant to subsection (3) of the Bill exempting

65
refugees from the effect of Clause 4. Of course we do not know what the terms of such an exemption would be. It is our view that Parliament could not be satisfied that those in fear of persecution would be entitled to rely upon the opportunity to appeal on the ground of a possible use by the Minister of his power under subsection (3).
For example, the exempting order may refer only to persons already recognised as refugees or only to those claiming refugee status within a certain time. I venture to think that the amendment is one of the most important in this very important Bill affecting the liberty of the subject and the sense of security of thousands of people in different parts of the world. Very often the degree of civilisation of a country may be judged on the way it treats refugees and its approach to them. The amendment I move would ensure that the refugee's right to appeal is protected by statute and not dependent on an executive order that can be changed or removed by the Secretary of State on the grounds of administrative or possibly mere political convenience. The view that Parliament takes in regard to this important matter will determine how the attitudes of Parliament and this country towards refugees are judged. It would be a grave backward step in our standing in the world if we were to say no to this amendment. I beg to move.
Lord Renton: It gives me pleasure to be in agreement with the noble and learned Lord for once, and I think for the first time on this Bill. He has made a very important point. It is something that should be dealt with in substance and I lean towards the view that it may be better written into statute than left to be dealt with in any other way. I say that subject to whatever may be said by my noble friend Lord Ferrers, who may have better ideas on this than any of us.
Lord Hylton: I rise to support the amendment. As I said at Second Reading, the passing of the Immigration (Carriers' Liability) Act last year, followed rather swiftly by this Bill, has given rise to suspicions that the Government are not adhering to their traditional policy with regard to asylum seekers. Therefore I was extremely glad that the noble Earl, Lord Ferrers, said in winding up at Second Reading that:
"We remain committed to fulfilling our obligations under the 1951 United Nations convention and preserving our tradition of offering hospitality to the genuine refugee".—[Official Report, 4/3/88; col. 401.]
Those were reassuring words but I am sorry to say that the actions of the Government last year were not at all encouraging. First, the Home Secretary said that asylum applicants could not in future expect that they would necessarily be referred to the United Kingdom Immigrants Advisory Service. Secondly, he went on to say that nor would their removal necessarily be deferred while a Member of Parliament made representations on their behalf, nor, if they challenged court decisions to refuse asylum, would they automatically be allowed to stay in the UK until proceedings were completed. That is what makes many of us think that the safety net which until last year underpinned asylum seekers was being snipped away.
66
Perhaps I should remind the Committee that since 1980 asylum applications have averaged about 3,800 per year. On the other hand grants of refugee status and therefore permanent permission to stay have been falling steadily since 1982, while the number of cases where exceptional leave to remain was given have been rising. It is those people who are touched by this amendment.
I very much hope that the Government will study very carefully, take on board and if possible put into practice what has been suggested by the British Council for Aid to Refugees in a document which it issued in January of this year concerning a code of practice for asylum seekers and in particular for an asylum review board. I support the amendment.
The Lord Bishop of Ripon: I was delighted to hear the support of the noble Lord, Lord Renton, for the amendment. I should like to expand on one point which was made by the noble and learned Lord, Lord Elwyn-Jones, in commending the amendment. It relates to the circumstances pertaining to the country from which a refugee may have come. Those circumstances may change very quickly and it may sometimes be rather difficult to know exactly what they are.
My experience relates to the country of Sri Lanka, in which I have lived and which I feel I know very well. Yet I have very great difficulty in discerning precisely the danger to particular members of that community while they are in this country considering possible return. Bearing in mind that circumstances can change very quickly and what may be fairly obvious at one moment may change very rapidly at a later moment, it seems to me that the safety net of an appeal is essential if some grave mistakes are not to be made.
Lord McNair: The amendment has been movingly and lucidly moved by the noble and learned Lord and supported by the right reverend Prelate and the noble Lord, Lord Hylton, and, I was delighted to hear, by the noble Lord, Lord Renton. There is not very much more to say, but, when matters of such profound importance are under discussion involving the most fundamental human rights and quite possibly human lives, I hope that I may be allowed a minute or two of the Committee's time. As the noble and learned Lord said, the amendment was carefully worded in such a way as to remind us of our obligations under the 1951 international convention. Those are obligations that we voluntarily, willingly and, I hope, enthusiastically undertook.
We are constantly being reassured by Ministers in a non-legislative way—as we were at Second Reading by the noble Earl—that we still feel bound in honour by those obligations, so one wonders why the Government are so reluctant ever to reaffirm in legislation our adherence to the convention. I hope that perhaps this evening may prove to be an exception.
If a person who has thrown himself on our mercy is threatened with deportation to a named country in which he has a well-founded fear that he may be persecuted on grounds of race, religion, nationality,

67
membership of a social group or political opinion, can any noble Lord decently maintain that he should not be given a chance to argue that case before the appropriate authority and to argue it before being sent to the country that he is frightened to enter? I very much hope that this is one amendment to which the noble Earl will respond sympathetically. In so doing he can only enhance the high regard in which he is held.
7 p.m.
Lord Bonham-Carter: Perhaps I may add a few very brief words to the powerful plea of my noble friend Lord McNair on this extremely important issue. I think that the Committee should be reminded of how long the tradition of asylum has existed in this country and how fiercely it has been maintained. The noble Earl, Lord Ferrers, and his colleagues on the opposite Benches therefore have a duty to uphold that tradition as one which is of very long standing. I should like to remind the Committee that in 1858 a bomb which had written on it "Made in Birmingham" was thrown at Napoleon III. That attack was believed to have been part of a conspiracy by a follower of Mazzini called Orsini, who was resident in this country. There were demands that he should be extradited and the Foreign Office was genuinely alarmed that there might be conflict between this country and France if something was not done. Lord Palmerston was then in office and he tried to do something about it, but his government were defeated, and Lord Derby succeeded him. That gives some indication of how attached people were to the tradition of asylum and their behaviour shows how the Conservative Party actually benefited from a breach of it.
Earl Ferrers: The noble and learned Lord, Lord Elwyn-Jones, said that this was a very important amendment and I agree. As has been said from all sides of the Committee, it refers to the very basic position of people who are seeking asylum. It is right to remember that we are discussing Clause 4, which refers to the restricted right of appeal against deportation. Clause 4(2) states that this:
"applies to any person who was last given leave to enter the United Kingdom less than seven years before the date of the decision in question but the Secretary of State may by order exempt any such persons from that subsection".
We believe that it is quite right to take account of those who are concerned about asylum. We recognise that asylum applications give rise to very special considerations and in this Bill we have made provision to ensure that in certain circumstances those who have been in this country for fewer than seven years are not denied a right of appeal—because it is that with which we are concerned—which is able to take account of asylum questions.
I do not believe that there is anything between us on this issue because it is the Government's intention to make that point clear by means of an order. In our view it is better to do it in that way than by legislation, because it enables us to consider the addition of other categories if that is warranted at some future date. As
68
it is, my right honourable friend has indicated in another place that the order will also safeguard, for instance, the rights of appeal of those who, during the currency of their existing leave, go for a short trip abroad. For that reason it is our view that this matter is best dealt with by order. An order enables us to add other people whom it may be desirable to include, and is preferable to putting a provision in the Bill.
Lord Elwyn-Jones: Can the noble Earl give an assurance that we shall see the form and content of the order before the Bill leaves this Chamber? I may say that in this matter this Chamber has a very special place and responsibility. If the noble Earl is able to give that undertaking, I shall certainly be prepared to wait until such time as we see the order and not put the matter to the Committee at this stage. Can the noble Earl give that assurance? I detect that other Members of the Committee are of the same inclination.
Lord Harris of Greenwich: I think a very important point has been raised; namely, it is clearly necessary for us to see the terms of the order before this Bill leaves this Chamber if we are being invited by the noble Earl (as we are) to leave this matter entirely in the hands of the Government.
I note that this order will in fact not be in the affirmative form but be subject to the negative resolution procedure and that, if anything, intensifies one's anxieties. I hope that the noble Earl will be able to deal with this point now.
Earl Ferrers: I shall certainly find out whether it is possible to give noble Lords the terms of the order before the Bill leaves this House. Should that not be so for some reason, I shall certainly consider the points that have been made this evening to see whether there are ways in which this amendment could be incorporated. As I said, I do not think that there is anything between us on this point.
The noble and learned Lord was quite right to ask to see the order or to suggest coming back on Report with a similar idea. I shall ensure that he has one of those two options; alternatively I may be able to take the view of the Committee this evening and see whether we can do anything at the Report stage. I should prefer to leave the matter there and I shall contact the noble and learned Lord. I shall make sure that the point that he has put forward is taken with great sincerity.
Lord Elwyn-Jones: Does that mean that we shall have that intimation before the Report stage of the Bill, because that will be a critical point so far as this Chamber is concerned?
Earl Ferrers: I shall undertake to consider the implications of what the noble and learned Lord has said this evening. I shall consider whether it is possible to obtain that information before the Report stage. If it is not possible I shall let the noble and learned Lord know and he will be able to make up his own mind whether to return to the matter at the Report stage.
Lord Elwyn-Jones: I am most grateful to the noble Earl. In those circumstances I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elwyn-Jones Lord Elwyn-Jones had given notice of his intention to move Amendments Nos. 11 and 12:
Page 3, line 19, leave out ("seven") and insert ("three")
Page 3, line 24, leave out from ("to") to ("House") in line 25 and insert ("approval by a resolution of each").
The noble and learned Lord said: In view of the lateness of the hour and the inconvenience of the alternative, Amendments Nos. 11 and 12 are not moved.
[Amendments Nos. 11 and 12 not moved.]
On Question, Whether Clause 4 shall stand part of the Bill?
Lord Elwyn-Jones: I am not sure that I should say "Content" but my Motion expressing the intention to oppose the Question is not moved. I do not know whether it makes a great deal of difference.
Clause 4 agreed to.
The Earl of Arran: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

British Railways (Penalty Fares) Bill [H.L.]
7.10 p.m.
Lord Marshall of Leeds: My Lords, I beg to move that this Bill be now read a second time. Your Lordships will be pleased to note the brevity and simplicity of this Bill, the purpose of which is encapsulated in Clause 5:
"if a person travelling on a train service fails to produce a deferred fare authority, fare ticket or general travel authority on being required to do so by an authorised person, he shall be liable to pay a penalty fare".
Before turning to the detailed contents of the Bill I should like, with your Lordships' permission, to indicate why these powers are sought by British Rail, how the system will work in practice, and to describe briefly the safeguards that have been incorporated to protect the passenger.
Your Lordships may not be aware that the United Kingdom and the Irish Republic are the last countries in Europe to retain the ticket barrier. Other national railway systems have dispensed with it and British Rail have done so too on many Intercity routes and in rural areas. When ticket barrier controls are swept away, passengers are no longer forced to queue to show their tickets. They are not delayed in leaving the station, trying to find their ticket while carrying their luggage and possibly trying to look after children as well. It will also help the disabled. Thereby, access to stations is improved and it is possible to open up secondary station entrances which can benefit many passengers by reducing the distance that they have to walk. The stations can be
70
opened up for trading with perhaps cafés and small shops, such as flower shops, making better use of the large areas of space bequeathed to us by the early railway engineers and architects.
The business of ticket checking can then be transferred from the station to the train. Those of your Lordships who travel at quiet times of day will be reassured to see the reappearance of ticket staff. I am sure that this will be particularly welcomed by the elderly and by women who travel during the evening time. Apart from this, ticket checks can be carried out more effectively on the train than is possible with the somewhat perfunctory checks that can be undertaken at ticket barriers, particularly at busy main line termini.
However, the checks can only be effective if the passenger has first had the opportunity to buy a ticket. British Rail are currently taking delivery of 400 passenger-operated ticket-issuing machines of the very latest type. These machines will not only issue the ticket but also accept bank notes and coins and give change. The requirement for further machines will be re-examined in the light of experience. The number of staff working in booking offices is being reviewed to ensure that as far as possible enough booking clerks are available to deal efficiently and economically with the number of passengers seeking to purchase tickets. The objective is that no passenger should have to queue for more than three minutes to purchase a ticket at normal times.
In case these improvements should not prove to be entirely effective, British Rail will be introducing deferred fare authority machines at many stations. This is an entirely new concept. They will accept any coin between 5p and £1 and will issue a ticket to the value of the coin inserted, showing also the date and time of purchase and the station name. If a ticket machine has failed or the ticket office queue is too long, or it is closed for any reason, purchase of a deferred fare authority will avoid incurring a penalty fare on the train. The ticket examiner, either on the train or at the destination station, will then charge the appropriate fare for the journey that the passenger is making, but give credit for the value of the deferred fare ticket already paid.
Why then is there a need for a penalty fare? The penalty fare is not intended to be punitive but is designed to encourage the pre-purchase of tickets, something which is commonplace throughout the rest of Europe. The new system which I have just outlined makes life considerably easier for passengers by giving more freedom than is possible with the ticket barrier system and a much better standard of personal service on the trains. In return, British Rail needs to be sure that passengers will book their tickets before they board the train and will not swamp the travelling ticket collector on the train with requests for tickets, leaving him to carry large sums of money, which would be an obvious security risk.
The penalty fare will also be a deterrent to dishonest travel. Sadly, some £34 million a year is lost to British Rail through ticketless travel. A high proportion of this is dishonest. The penalty fare will discourage casual dishonest travel and will improve

71
the receipts and the overall financial position of British Rail. If it does not do this, the alternatives are perhaps less palatable. They may involve a greater increase in fares than would otherwise be necessary, or a saving of costs by reducing services or facilities which passengers would prefer to remain. It cannot be right that the honest passenger should pay for the iniquities of the dishonest or undisciplined traveller in this way. The penalty fare is an important step in remedying this abuse. There have been arguments that the penalty fare will make criminals of honest passengers. This is just not so.
The proposed improvements in ticket availability will make the life of the honest passenger—and I am pleased to say that the great majority of railway passengers are indeed honest—a great deal easier, by enabling him to purchase a ticket in advance. If, however, a passenger on a train is not in possession of a ticket, he is not to be treated as a criminal under this Bill. He is simply asked to pay a penalty fare, which is a civil penalty and not a criminal one. If there are good reasons why he has not been able to obtain a ticket before travelling, not even this civil penalty will be due. Only if there is evidence of an intent to avoid payment may the passenger be liable to prosecution. Then it would be under the existing provisions of the Regulation of Railways Act 1889 and not under the provisions of this Bill.
One of the social benefits of this Bill is that it will take most ticketless travel outside the scope of the criminal law and will free the hard-pressed magistrates' courts to deal with other serious business.
With your Lordships' permission I shall now shortly examine some of the provisions of the Bill. The Bill seeks only enabling powers. Your Lordships have a natural and understandable aversion to enabling powers, a concern which I also share. In this case however the powers which Clause 3 of the Bill would grant to the Secretary of State form an important safeguard for the passenger. It would clearly be wrong to penalise the passenger who had not had a reasonable opportunity to purchase a ticket before travelling, and British Rail has no intention of doing that. No doubt my noble friend on the Front Bench will confirm to your Lordships that it is most unlikely that the Secretary of State will make an activating order to apply the Act to a line or group of lines until he is satisfied that the stations concerned are adequately staffed, are equipped, where required, with ticket and deferred fare authority machines, and that the scheme is adequately publicised by the display of notices at stations. So it is a question whether the Secretary of State will not move to activate an order until he is satisfied with the matters to which I have referred.
Clause 6 provides that the penalty fare on British Rail will be £10 for shorter journeys, which is the same penalty fare as is proposed for all journeys on the London Underground. Where the ordinary single fare exceeds £10 the standard single fare for the journey that the person is making will be payable and he will not be entitled to any concessionary fare, for example, if he were to be the holder of one or other of the railcards.
72
Clause 5 provides that the penalty fare would not be payable, first, where a valid ticket or pass for the journey being made is produced; secondly where a deferred fare authority is produced; thirdly, where the station at which the passenger joined the train has no ticket office or the ticket office was closed for any reason and no deferred fare authority machine was available; and, fourthly, where the passenger is told by a uniformed railway official or by means of a notice that he may join the train without a ticket.
Clause 7 of the Bill strengthens the authority of ticket examining staff to secure the name and address of passengers on a train who are unable or unwilling to pay any penalty fare due. Clearly the effectiveness of the Bill would be greatly weakened without that provision.
Clause 8 ensures that nobody can be prosecuted for a travel irregularity in respect of which a penalty fare has already been paid or where civil proceedings have been commenced in the county court to recover an unpaid penalty fare.
Turning now to the practical application of the proposals, your Lordships could best consider this in terms of a suburban railway journey in, say, London, Manchester or Glasgow. In other words, the provisions are designed for short journeys on very busy trains rather than for longer and more leisurely intercity journeys. In the vast majority of cases passengers will hold either season tickets or capital cards or will have bought their tickets in advance from an agent, from a booking clerk or from a ticket issuing machine.
Where there are inordinate delays a deferred fare authority can be purchased to avoid the penalty fare, and from unstaffed stations no penalty fare will be payable provided the passenger proffers his fare to the ticket examiner or guard as soon as possible after joining the train. For example, let us suppose that there was an unusually long queue at a ticket office at a small station where no deferred fare authority machine was provided. In this case a passenger could certainly challenge any request for a penalty fare. If it were not possible to resolve the issue on the train the passenger would be issued with a penalty fare notice requiring payment within 21 days. He would have ample time to set out his case to the designated railway manager who, if he agreed, after checking with the station concerned, would thereupon withdraw the penalty fare notice.
To summarise the safeguards for passengers, first, we have the activating orders which would be made by the Secretary of State only when he was satisfied that the system was adequate to deal with the likely demands to be made upon it. Secondly, we have the investment in new ticket issuing machines backed up by more effective staffing arrangements in ticket offices and more ticket examiners employed on trains. Thirdly, we have the deferred fare authority machines combined with good signing and publicity to ensure that passengers know what is happening. Finally, we have the penalty fares notice for any disputed cases.
Two Petitions have been deposited against this Bill in your Lordships' House. British Rail will be meeting both petitioners to discuss their concerns,

73
but whatever the outcome of those meetings there will be opportunity in Committee for the detailed provisions of the Bill to be closely examined.
This Bill has been carefully thought out and is based on many years' experience by British Rail both of the traditional method of ticket control and of the newer open station system. It follows very closely the provisions of the similar London Regional Transport (Penalty Fares) Bill which has been substantially improved in Committee and is to be recommitted so as to effect some further adjustments which it has been agreed should be made.
I can tell your Lordships that some managers within British Rail sought to bring a similar Bill before your Lordships' House in the 1970s, but the board had properly judged at that time that this should not be done until the right ticket issuing systems were available to ensure that the arrangements could be operated successfully. These systems are now being introduced, and the board feels that the time is right to apply for the powers which are sought in this Bill. Meanwhile, the need has not diminished with ticketless travel, much of it dishonest. Unhappily, that continues at a very high level.
The powers sought by the Bill are the key to reducing dishonest travel, opening up access to stations but eliminating many of the irksome restrictions on our present system of enclosed stations. I have no hesitation in commending the Bill to your Lordships.
Moved, That the Bill be now read a second time.—(Lord Marshall of Leeds.)
7.26 p.m.
Lord Tordoff: My Lords, noble Lords on all sides of the House will be grateful to the noble Lord, Lord Marshall of Leeds, for his detailed exposition of this Bill, which is both simple and complicated.
I begin from these Benches by saying that we firmly believe that those people who are failing to pay their fares on British Rail are cheating not only British Rail but their fellow passengers and the taxpayer. Therefore, we have no objection, and indeed my colleagues and I would wish to give every encouragement, to schemes which will ensure a better level of payment of fares on British Rail.
However, it is right that on a subject like this your Lordships' House at Second Reading should spend a little more time than it normally does on a private Bill of this sort because there are important principles lying behind it. Before it passes to a Select Committee it is right that we should give it proper scrutiny and that Parliament should debate the matter before it passes into law.
It may appear that we are being asked to allow rights to employees of British Rail which we do not allow to our police force; in other words, the right to impose what might be regarded as on-the-spot fines—because whatever you call them, penalty fares may well be seen by people as being on-the-spot fines. Let me deal with that point immediately and take your Lordships back to the London Regional Transport Bill. I am delighted to see the noble Lord,
74
Lord Lucas of Chilworth, in his place because he dealt with this matter when it came up under that Bill. I hope that noble Lords taking part in this debate have re-read his speeches from the Government Front Bench, particularly at col. 1007 of 12th June 1984 at the Committee stage.
It seems to me that the precedent has already been set for this measure. Assurances were given by the noble Lord on that occasion that we were not creating a new criminal offence—the noble Lord, Lord Marshall of Leeds, has referred to this—but merely giving British Rail the right to invoke a new civil liability. I should like the Minister formally to confirm that position and that that is the Government's understanding of what the position is. If that is so, having re-read the debate which we had in this House on the London Regional Transport Bill I must say that I am satisfied on that principle.
Nevertheless, it is incumbent on us to make sure that in handing over this power to the servants of the railways board the innocent are protected, that they are not going to be unnecessarily harassed, that they are not going to be subjected to unfair treatment and that an adequate and simple appeals procedure exists.
I am slightly put on my guard by the wording of Clause 8(2)(b) of the Bill, which seems to open up the possibility of bylaws being made under Section 67 of the 1962 Transport Act which might make the failure to obtain or produce a deferred fare authority an offence, presumably a criminal offence. I should like to ask the Minister whether he believes that that is the case and, if so, how that can be regarded only as a civil liability.
There was one point which emerged in the debate in 1984 which was raised by the noble and learned Lord, Lord McCluskey, to which there may have been an explanation at a later stage of the Bill, but I have so far been unable to find it. I believe that it is relevant to this Bill also. He was worried that someone who failed to satisfy a constable that the name and address that he or she gave was accurate might, under the provisions of the Public Passenger Vehicles Act 1981, be arrested without a warrant and under the provisions of the Police and Criminal Justice Bill find themselves detained for up to 24 hours, perhaps even without the benefit of a lawyer.
Does the fact that there is no reference in this Bill to Section 25(2) of the 1981 Act mean that a person cannot be so arrested, or does the absence of the reference to that Act in Clause 8(2) of this Bill mean that they can be arrested under the 1981 Act even though, while liable under Clauses 4 and 5, they are exempt from certain provisions of the 1889 and 1962 Acts under Clause 8(1) of this Bill? I am sorry if that sounds rather complicated, but it seems to me that there is no reference to the 1981 Act in this Bill and there may be a loophole here. I shall be most grateful if someone can clear that up for me.
If it is the former position, I am quite satisfied. However, if it is the latter, perhaps an amendment to include the provisions of the 1981 Act ought to be included as a new Clause 8(2)(c). I leave that to the Select Committee and to others who are more expert at these matters than I am. Without such

75
amendment, it might be possible for a civil liability to be converted into a criminal charge rather too easily. In other words, someone who had the unlikely name of John Smith—and I make no reference to Members of another party in another place—might find himself in the cells overnight because he had the misfortune to sleep beyond his stop and subsequently had difficulty in proving to a constable that his name was John Smith.
However, without such power it seems to me that British Rail will find it difficult to ensure that the provisions of Section 7(1) are workable. In answer to the direct question, in correspondence that we have had British Rail says that it is a problem it has had to face since the 1889 Act came into effect. The position is therefore no worse than it has been for the past 100 years. If we cannot do better than that without hurting innocent people, so be it perhaps, but does it mean that this Bill is not as watertight as it might be?
Let me deal with one or two general points that arise out of the Bill. We recognise that a number of benefits will arise (and the noble Lord, Lord Marshall of Leeds, has referred to many of these) in addition to the more effective combating of fraud and the consequent help for the paying passenger.
He has mentioned the ability to create more open stations with easier access to passengers, and a larger number of access points. That may be very important for people with disabilities or for those who do not wish to walk a large distance with baggage. There is the not inconsiderable benefit for passengers who, while holding on to baggage, children, pushchairs, umbrellas, newspapers, and so forth, do not have to fumble in their pockets to produce a ticket at the barrier. That may sound a slightly frivolous comment, but it is important for the travelling public.
Perhaps the most important aspect is the ability of British Rail to deploy ticket collecting staff to areas where they may be of much more use to the travelling public. I would prefer to have more staff on trains, again as the noble Lord has said, at times when there are perhaps not too many people on the trains, when I believe that those measures could well improve the level of security and the level of passenger safety. Therefore, I am hoping that British Rail do not see this as an excuse for further de-manning, but as a way of better deploying its current staff and of improving the skills of its existing staff. I also hope that this will not lead to an increase in totally unstaffed stations. That might well reduce passengers' feelings of security and undermine the benefits of the scheme.
Correspondence that we have had with British Rail on the subject has produced the reply that the proposals will not themselves lead to an increase in unstaffed stations. That is not quite the same as saying that the introduction of the scheme will not be a factor in the increase in unstaffed stations. That is what I would greatly prefer it to say; and I hope that British Rail will take this out of its calculation in trying to determine whether or not a station should be unstaffed.
Perhaps I may now turn to one or two minor points in the Bill that I think should be raised at this point. The most minor of these is a spelling mistake. On
76
page 4, line 44, the fourth word should be "in" rather than "is". It is always a delight to find a mistake in a Bill at this stage. I make no great virtue of that.
The next point is the definition of "authorised person" as defined on page 2 in line 2. Noble Lords will no doubt remember vividly that at cols. 1028–29 of the Official Report of 12th June—again in reference to the London Regional Transport Bill—the noble Lord, Lord Lucas of Chilworth, in reply to the noble Lord, Lord Underhill, said:
"An authorised person is not going to be an ordinary inspector or ticket collector. This will be a particular person. It could be a man or it could be a woman who would be specifically trained and will be authorised to undertake this kind of work".
It goes on:
"The authorised person … would have signed authorisations indicating the scope of his responsibility. He would have an identity card to be shown to any passenger who so demands".
Can we have a similar assurance on this Bill? I believe that that is important again from the point of view of giving a sense of well-being to travelling passengers that they will not be conned by people who are pretending to be authorised when they are not.
Perhaps I may next refer to Section 5(2)(a), where we see that a person shall not be liable, if, at the time when and the station where he started his journey or that part of his journey subject to the provisions of the Bill,
"there were no facilities available for obtaining a deferred fare authority or for the sale of the necessary fare ticket for the journey".
Again the noble Lord, Lord Marshall, has explained the view of British Rail on this. However, there are two issues that arise. Suppose that the deferred fare authority machine available is out of action. Is it then incumbent on the passenger to get a ticket even if there is a queue which would involve missing the train? I take it that that is not the case. If that were the case, the scheme would depend very much on the confidence of the travelling public in the reliability of those machines issuing deferred fare authorities. Without that confidence the system would be brought into total disrepute. If the meaning is that, if the machine is out of action and one is unable to obtain a ticket, one is then entitled to board the train without incurring a liability, on whom does the burden of proof rest to show that the machine was not in operation? That is the important point. It is my belief that the prime responsibility must be on British Rail to show that the machine was working at the specific time and place before that liability can be incurred. It should not be left to the passenger to prove the negative, which could be an almost impossible task in most circumstances.
That brings me to the final question, which relates to Section 6(1). This deals with the level of penalty fares. I have had some lead on this from what the noble Lord, Lord Marshall, said as to this being designed on the whole for short journeys. But presumably it is not intended to be entirely for short journeys. My reading is that the defaulter has to pay either the penalty of £10 or the full single fare, whichever is the greater, but not both.
This is different from the London scheme, partly because the amounts involved are different. Anybody travelling a distance costing more than £10 pays no

77
penalty. I realise that it is more expensive to pay the full single fare than to take advantage of the many extremely complicated and not always understandable saver schemes that British Rail applies to its return tickets. However, there exists the curious situation in which anyone wishing to make a single journey could take the risk of boarding a train without holding a valid ticket. If the cost of that ticket is likely to be over £10, he will incur no extra cost if he is caught. Surely there should be an additional penalty; perhaps £10 in addition to the full single fare or even a sliding scale proportionate to the cost. For example, it could be £10, plus the single fare, plus 10 per cent. of that fare. I do not see why people seeking to defraud the railways, the shareholders and the taxpayers should get away without cost simply because they are beyond the £10 limit.
I believe that without that deterrent effect the scheme is unsufficient. If there is no deterrent effect we may just as well say that British Rail can forget the Bill and increase its surveillance on trains to ensure that fare dodgers are caught. However, that implies that other fare-paying passengers must pay the cost and that the manning levels must be increased. That is a situation which we wish to avoid.
I believe that the Bill deserves the support of your Lordships' House. I am sure that the Select Committee will have a great deal of work to carry out and I commend the Bill to your Lordships, as did the noble Lord, Lord Marshall.
7.41 p.m.
Lord Auckland: My Lords, I apologise for not having added my name to the list of speakers and I shall be brief. For 34 years I have commuted from my home in Surrey to one of three of London's stations on the Southern Region. Therefore I have encountered some of the problems envisaged in this admirable Bill, which I believe will have general support throughout the country. However, I am concerned about several aspects, most of which have been dealt with by the noble Lord, Lord Tordoff. The first concerns the rush hour. There are a number of small suburban stations in Surrey, Hampshire and Sussex where the population has expanded but where the area around the ticket office is still small. In the area machines would be far from easy to install and there always exists the problem of a machine breaking down. Those noble Lords who use the London Underground know that the ticket machines break down and that during the rush hour it is often difficult to summon the man in the ticket office to regain the coin. Even in this age of high technology there always exists the danger of the machines breaking down, and that is a real problem during the rush hour. I believe that the Select Committee must look into that matter most carefully before the Bill becomes law.
My second point relates to Clause 7. I believe that the National Union of Railwaymen is worried about the possibility of a hooligan gang travelling without tickets and assaulting a ticket collector. Are the penalties at present enforceable in law sufficient? That is another matter which the Select Committee must consider carefully.
78
Apart from those aspects, I believe that the Bill is admirable and, hopefully, its clauses and purpose will decrease the enormous losses sustained by British Rail as a result of deliberate fare bilking. Those who do so deliberately—particularly those who become aggressive when confronted—should literally have the book thrown at them.
7.44 p.m.
Lord Airedale: My Lords, I should like to add a few words to the extensive coverage of this matter by my noble friend. I thought that the noble Lord, Lord Auckland, was about to give the House his experience of what happens in Russia. However, I misheard him because he was talking about the rush hour. I am slightly concerned by Clause 4, which is not mandatory upon the ticket collector. His duty is not cut and dried; it is discretionary. I say that because of the words:
"if required to do so".
That provision means that the ticket collector will be performing a quasi-judicial function. He will be asking himself whether he believes the passenger's story about the train standing on the platform and there being not a moment to buy a ticket. Is it right that a ticket collector should be saddled with a quasi-judical function and not have a compeltely cut-and-dried duty to perform? A good deal of aggravation would be removed if the ticket collector could say to the passenger, "I have no option in the matter. This is the regulation under which I must operate and I must demand this penalty from you. If I do not collect this penalty I shall be in danger of losing my job." That would remove a good deal of the aggravation. The passenger would be less likely to protest and ask, "Do you mean to say that you don't believe what I've just told you about how I couldn't possibly buy a ticket before I boarded the train?". Therefore, I should like to know whether the discretionary element in Clause 4 can be reconsidered and whether the duties of the ticket inspector can be made cut and dried in order to remove some of the aggravation from the confrontation with the passenger.
Lord Moyne: My Lords, I apologise for not having added my name to the list of speakers, but I raise only a small point. I should like to know whether the machines will take account of the concessionary cards carried by senior citizens. I believe that passengers paying their fares on the train are not entitled to concessions but will that situation alter in the future?
7.47 p.m.
Lord Underhill: My Lords, I am also grateful to the noble Lord, Lord Marshall of Leeds, for explaining the Bill and taking the House through its various provisions. This is a Private Bill and I therefore speak in a personal capacity but I say unhesitatingly that we on these Benches support its general aims and desires. We recognise the serious problem of fare dodging, which the noble Lord, Lord Tordoff, described as "defrauding". I understand that in the Network South-East area alone, approximately £20 million was lost as a result of fare dodging.

79
The noble Lord, Lord Tordoff, referred to the London Regional Transport Bill, which was before your Lordships' House in June 1984. It introduced five new clauses to deal with the serious matter of defrauding as it would affect London Regional Transport. The Bill received support throughout your Lordships' House. On that occasion I intimated that the Greater London Council was in full agreement with the five new clauses. Nothing that I say today in respect of this Bill will be in contradiction of anything I said in 1984. I am always careful to avoid being quoted on anything I said four years ago. I have read and re-read what I said on that occasion and I have noted that I put forward several cautionary points of which I believed LRT should take heed when the Bill became law.
Today I want to stress again some cautionary points which I trust your Lordships' Select Committee, to which this Bill will be referred, will give consideration. I do not want to go over all the ground covered by the noble Lord, Lord Tordoff, in his excellent exposition of some of the problems that may arise unless certain assurances are given by British Rail; and we are told by the noble Lord, Lord Marshall, that there are two Petitions before the Select Committee.
There must be recognition of the acts of violence towards personnel involved in public transport. We discussed this recently with regard to buses and London Underground in a Question. The report of the chief constable of the British Transport Police, which was made to the British Railways Joint Safety Committee as recently as July 1987, shows that in 1985 and 1986 there were 537 offences of actual bodily harm to railway personnel and a further 250 cases of common assault. The noble Lord, Lord Auckland, also referred to violence towards railway personnel.
The present procedure in the event of fare defaulting is to charge the passenger travelling without a ticket the full single fare to the destination. As the noble Lord, Lord Marshall, explained, no discounts are allowed and the passenger is not allowed to buy a return ticket—a saver return or otherwise. It is recognised that there is some sense of inequality about the system, because a person can be charged a full single fare for a long journey or a short journey. Therefore, there is some inequality.
As we have been told quite clearly, what is proposed in the Bill is this flat penalty of 10. I trust that heed will be taken of the point made by the noble Lord, Lord Tordoff, that that itself can be the cause of considerable ill-will. One person can be charged a 10 penalty fare which may be only a few pence above his ordinary fare, whereas another person may find he is paying more substantially. Therefore there are grounds for certain sections of the public to feel ill-will towards the person who has to collect the penalty fare. That must be recognised.
The Bill also clearly recognises that the provision will be activated only if British Rail requests the Secretary of State so to do and if the Secretary of State is satisfied with the arrangements made on either a single line or group of lines. He has to be
80
satisfied about various safeguards which are not in the Bill. They are points to which the noble Lord, Lord Marshall, referred. I am glad that he did; but I think that the Select Committee—whatever British Rail may say, and it has written to both myself and the noble Lord, Lord Tordoff—must clearly ask whether these safeguards will definitely be provided by British Rail before the Secretary of State is asked to activate an order on a particular line or group of lines.
Looking very carefully at material which I have received from British Rail and from the National Union of Railwaymen, I see that there is not a great deal of difference between the two. They both want something done and in various ways raise questions of safeguards. Without going through all the points which have been mentioned already, the Select Committee must be satisfied that before the Secretary of State activates an order there will be improved ticket issuing facilities; there will be a proper provision of ticket machines; there will be deferred ticket authority machines to enable passengers to purchase a full range of discounted tickets on the train; and, particularly important, there must be adequate publicity of the scheme and its provisions.
Furthermore, no penalty fare will be raised where the ticket office was temporarily closed. The noble Lord, Lord Marshall, referred to this. It may well be that the railway staff who have the responsibility of dealing with this matter on the train will in all probability not be aware that a particular ticket office was closed temporarily, as so often happens on London Underground. I often find a station where I cannot even pay my fare when I get off if I do not have a ticket because there are no staff, never mind the fact that there are often no staff in the booking office on some of the Underground stations. Therefore, it could well be that the staff who are the authorised persons to deal with the question of penalty fares may not be aware that a ticket office in a particular station is temporarily closed or that there is a shortage of staff. Naturally that will be a ground for argument and that is where the union is concerned that this could exacerbate some of the problems it has had with violence towards railway staff.
Reference has been made to the increase in open stations. I completely agree with the desirability of that, but it means that the onus is placed more heavily on the person checking tickets on the train, who is usually referred to as the guard or conductor. This is where a possibility of violence also occurs, particularly late at night. I believe that the noble Lord, Lord Tordoff, referred to the possibility of football gangs, but there are others who have had a little too much to drink and who will immediately start arguing with the staff who carry out this duty.
We also know that there is a problem of queueing at ticket offices, particularly at mainline stations. There must be a clear assurance given by British Rail to the Select Committee that there will be a reduction in the amount of time that one has to spend queueing for tickets, particularly at mainline stations. If it is a problem of staff, that is something that BR must face; if it is a question of money, BR must raise that with the Government. However, we cannot have this sort of system without adequate staff, particularly at

81
mainline stations. I do not know what the position of the noble Lord is, but I find, particularly when I am on the London Underground, as I was this morning, that the number of people waiting at half-past nine so that they can buy a senior citizen's ticket is nobody's business. There are huge queues at Underground stations out in the sticks waiting for half-past nine so that the senior citizen's ticket can be bought. We know the problem that arises at many of the mainline stations with the queues that form. Those are the sort of issues to which the Select Committee must pay attention.
We cannot refuse to recognise that the penalty fare system is in effect an on-the-spot penalty fine. I do not say that that is wrong, but it could put the staff at risk. Therefore we must have certain assurances. As in the LRT Bill, persons will have 21 days to pay in disputed cases. I believe that the Select Committee must satisfy itself thoroughly about this. A question was asked by the noble Lord, Lord Tordoff, about the possibility of court action. I have similarly looked at Clause 8 of the Bill and the reference to proceedings: "If proceedings are brought". What proceedings? Proceedings can only be court proceedings. Therefore, we need to have some assurances on that point for somebody who has not satisfied the authorities whether this reference to proceedings means court proceedings or something else.
The noble Lord, Lord Tordoff, referred to the question I put to the noble Lord, Lord Lucas of Chilworth. I am pleased to see he is sitting in his place because I was going to quote the exact reply he gave, to which the noble Lord, Lord Tordoff, referred. Exactly who will be the authorised persons? The Bill states in the interpretation clause:
"'authorised person' means, in relation to any purpose, a person authorised for that purpose by the Board or by the person providing the service".
That does not give the assurance the noble Lord requested. It does not say exactly who will be the authorised persons. It does not say what sort of training will be given. I believe that this is an important question, because unless there are properly authorised persons of the right type, who have been selected for the purpose, who have a sense of good public relations and who are properly trained there could be a great increase in the offences against railway staff, to which I referred earlier.
With those few words I wish the Bill a speedy passage through the Select Committee, provided the Select Committee seeks definite assurances from British Rail on a number of those points because the Secretary of State will have to satisfy himself that these safeguards will be carried out before he activates an order. That means that British Rail must give some definite assurances to the Select Committee rather than in correspondence to certain noble Lords.
8.1 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, I should just like to intervene briefly to give the view of the Government on this Bill. We have considered the content of the Bill and have no
82
objection to the powers sought by the British Railways Board; indeed, we strongly support the aims of the Bill.
As my noble friend Lord Marshall of Leeds so clearly outlined, the Bill will benefit both the British Railways Board and its passengers. First and foremost, it will help to reduce the large amounts of revenue lost each year through fraudulent travel. Recouping this lost revenue should contribute significantly to the achievement of the objective we have set the board of reducing its call on the taxpayer, without any reduction in the general level and quality of the service provided to passengers. In fact the more efficient fare collection and ticket inspection systems the board intends to introduce should improve the quality of service to passengers. I am sure that most passengers will welcome the extra freedom of access that will result from the removal of barriers and introduction of on-train ticket inspection.
I do not intend to go over the ground covered so ably by my noble friend Lord Marshall of Leeds, but I should take up his invitation to say a little more about how my right honourable friend the Secretary of State will go about making the activating orders needed before the Bill's powers can be used. The Secretary of State's priorities will be to ensure that any scheme put forward by British Rail is accompanied by adequate operational arrangements and adequate safeguards for honest passengers. He will, for example, wish to be satisfied that ticket offices will be properly staffed; that the necessary ticket and deferred fare authority machines are in place; that publicity arrangements are satisfactory; that ticket inspectors are trained to operate the system; and that the procedures for disputes and appeals are adequate.
The noble Lord, Lord Tordoff, drew attention to a number of specific concerns about the possible legal ramifications of this Bill. Some of those concerns are for the board but some, indeed, are for Ministers, notably the question of possible criminal rather than civil proceedings as a consequence of the application of by-laws made under the Transport Act 1962, and a number of issues relating to the identification of authorised persons for the purposes of this Bill. There is also the question of the burden of proof should a ticket issuing machine malfunction. Those are matters of particular concern to the Government, not least because we shall wish to satisfy ourselves that the board's arrangements under this Bill properly protect the innocent passenger. In view of their complexity, however, I should like to write to the noble Lord with a full answer shortly.
I can assure all noble Lords that my right honourable friend will take his responsibilities seriously so that the Bill achieves its purpose of deterring fraudulent travel while protecting the honest passenger.
I know that the Select Committee will wish to examine the Bill and the Petitions against it in detail, but I trust that what I have been able to say on behalf of the Government has helped noble Lords to agree that the Bill should proceed in the usual manner.
Lord Marshall of Leeds: My Lords, perhaps I may say how grateful I am to all noble Lords who have displayed such a helpful approach to this Bill.
The noble Lord, Lord Tordoff, expressed concern about the right to impose on-the-spot fines. I think that that is a little strong because they are not fines, they are penalty fares. Great Britain and Ireland are the only countries in both east and west Europe which do not have a penalty fare system. The safeguards which concerned the noble Lord, Lord Tordoff, are those that I detailed in my opening speech. The innocent are protected by the Bill, but it is only fair that the dishonest traveller should be caught.
However, even when he is caught he is not a criminal because the Bill will take most ticketless travel outside the scope of the criminal law. There might be some suggestion of criminality if a person failed to give his name and address because he then becomes liable to a fine by the courts. Of course, as we all know, the only criminal aspect of travelling without a ticket is that, for it to be criminal, a passenger must have the intent of avoiding payment; that is to be found under Clause 5 of the Regulation of Railways Act 1889—travelling with intent to avoid payment.
The noble Lord, Lord Tordoff, asked what would happen if the deferred fare machine was out of action. He asked: upon whom is the burden of proof? I refer noble Lords to Clause 5(2)(a)(i) and (ii) and to Clause 5(2)(b)(i) and (ii). I shall not read them out but those are the paragraphs which answer the reservations of the noble Lord, Lord Tordoff.
Lord Tordoff: My Lords, I am sorry to interrupt the noble Lord, but with respect I do not think that they do. The paragraphs refer to where no facilities are available, but who is to say that no facilities were available? Is it the passenger who says, "but no facilities were available" and that is accepted by the British Railways Board? What happens if the British Railways Board says that facilities were available? On whom rests the onus of proof? That is my question. Does it rest on the passenger or on British Rail to prove that the facility was or was not available?
Lord Marshall of Leeds: My Lords, if it comes to an argument on a busy train, as I think I pointed out in my opening speech, the question will have to be resolved in a different way. If it cannot be resolved because of pressure of time, the ticket examiner will issue a penalty fare notice which will then require payment within 21 days or will allow investigation within 21 days. It is then that the powers that be within British Rail will investigate to see where the passenger boarded, what were the conditions obtaining at the station he joined, whether any deferred ticket machines were in operation, or whether the booking clerks were in attendance. In my submission, the matter will be dealt with fairly at the end of the day; but it will take 21 days.
84
There is some discontent that where the fare is more than £10 there is not sufficient penalty. That is not a matter for me and I hope that it will be explored by the Select Committee. However, if the fare is more than £10 then, of course, the passenger must pay the full fare. He cannot call into account any discount card, capital card or pensioner's card that he may have. That is an additional penalty. I said in opening that this penalty fare system is not designed for the long, leisurely journeys but primarily for short journeys.
My noble friend Lord Auckland was concerned about the penalty fare. I shall remind him that I dealt with the point he raised when I said that where the station at which the passenger joined the train has no ticket office or the ticket office was closed for any reason (that was the noble Lord's concern) and no deferred fare authority machine was available, no penalty fare will be payable.
The noble Lord, Lord Airedale, was concerned with the issue of the penalty fare. I made the point that there are 21 days for investigation. I made that point clear in opening. The noble Lord, Lord Underhill, spoke about the ill-will of having a differing penalty. It is a differing penalty; but I say again that this proposed legislation is designed for short journey travel and not for long, intercity journeys. To answer Lord Underhill's other point, the Secretary of State will not issue an activating order until he is satisfied that stations are equipped with ticket and deferred fare authority machines, and also that they are adequately publicised. I have no doubt that if there is queueing, British Rail will provide the necessary additional staff.
No doubt the Select Committee will give careful attention to all the matters that have been raised. The word "proceedings" has been questioned. In my view, they are civil and not criminal proceedings. It is not advised on the answer to that point. The selection and training of authorised persons will obviously be a most important matter.
Perhaps I may say how grateful I am to all noble Lords who have participated in the debate. I refer particularly to my noble friend the Minister for his assistance and his most helpful comments especially as regards the question of the activating orders that the Secretary of State will be making from time to time in respect of individual lines or networks. I believe that between us we have dealt with most of the important points raised by this Bill. I again thank most sincerely all noble Lords who have participated. I commend this Bill to the House.
On Question, Bill read a second time, and committed to a Select Committee.

Port of Tyne Bill [H.L.]
Committed to an Unopposed Bill Committee.
House adjourned at thirteen minutes past eight-o'clock.