Lords Sitting of 16 July 1990

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwark.
Lord Lindsay of Birker Lord Lindsay of Birker —Took the Oath.

NHS: Chiropody Provision
Lord Wallace of Coslany Lord Wallace of Coslany asked Her Majesty's Government:
What improvements have been made in providing chiropody services within the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): My Lords, there h As been a welcome and steady increase in the provision of NHS chiropody services over several years. The total number of people receiving chiropody treatment in the NHS increased by 22 per cent. between 1982 and 1988, and the number of chiropodists on a whole-time equivalent basis employed in the NHS increased by 20 per cent over the same period.
Lord Wallace of Coslany: My Lords, I thank the noble Baroness for reading her brief so accurately. As regards chiropody, I suggest that considerable hardship is arising in the National Health Service. Chiropody is an easy service to cut, and cuts are being made. Is the noble Baroness aware that chiropody does not mean only the cutting of toenails but includes also the treatment for callouses and corns? Is she also aware that a wait of three months, or no treatment at all, means considerable hardship for a number of elderly women who have suffered and who are still suffering through lack of mobility? Why should those people have to suffer? I accept that the noble Baroness has given the facts, but the fact is that cuts are taking place.
Baroness Hooper: My Lords, as in all health service matters, the health authorities determine the level of chiropody provision in their areas. I am well aware of the training and qualifications which full time chiropodists require. At 30th September 1988 there were 3,330 chiropodists employed by the NHS, an increase of 550 or 20 per cent. over the 1982 figure. Furthermore, the number of students qualifying increased from 264 to 385—some 46 per cent.—over the same period. I understand that the problem is rather that there are too many qualified people rather than not enough.
Lord Molloy: My Lords, notwithstanding the figures which the noble Baroness has given, is she aware that there is great strain on the London Foot Hospital which is known worldwide? Would it be possible for the department to offer some assistance to enable that hospital to overcome some of its problems?
Baroness Hooper: My Lords, the department is fulfilling its role by concentrating on the training aspects of this matter. As I said, it is for health authorities to provide the level of services required in their areas. However, I recognise that the London Foot Hospital has a worldwide reputation.
Lord Ennals: My Lords, does the Minister accept that her department recently published the results of a survey which showed that the requirement was not for fewer but for twice as many chiropodists? Is she aware that at present there is a tremendous growth in the number of elderly people requiring chiropody services? Is she aware also that the NHS chiropody service in London is almost at crisis point? She sounded as though there is a marvellous success story. She should speak to the old people because there is no such success story.
Baroness Hooper: My Lords, as in other areas of provision, expectations are on the increase. However, I submit that provision is also on the increase. If the noble Lord was referring to the Cartwright Report called More Trouble with Feet, which was published in 1986, I agree that the report confirmed that the level of chiropody provision at that time was insufficient to meet all need. That has resulted in the steady improvement in the number of treatments given, the number of chiropody students in training and the number of chiropodists and footcare assistants employed in the National Health Service since 1986.
Lord Donaldson of Kingsbridge: My Lords, for information only, perhaps I may ask whether there is a registration system. Are you allowed to call yourself a chiropodist without satisfying somebody else that you know what to do?
Baroness Hooper: My Lords, I understand that there is a fairly wide use of the word "chiropodist". However, any chiropodist employed in the National Health Service is required to be state-registered. In essence, that means that only those people who have successfully completed a three-year training course approved by the Chiropodists Board of the Council for the Professions Supplementary to Medicine are eligible for NHS employment.
Lord Donaldson of Kingsbridge: My Lords, I thank the Minister for that reply. However, will the noble Baroness discuss with her colleagues the importance of having standards for all activities in relation to health, not only for the National Health Service?
Baroness Hooper: Yes, My Lords.
Lord Wallace of Coslany: My Lords, there may be more chiropodists, but many of them are operating in the private sector. If one cannot afford £5 to £10 a month, one has to do without. That is the position.
Baroness Hooper: My Lords, I referred to the figures for students in training. That is an important factor.
Viscount Hanworth: My Lords, does it not appear that a three year training course is ridiculously long? If it were not so long it may be that those who at present practise without qualifications would take those qualifications.
Baroness Hooper: My Lords, a three year qualification period for the type of work undertaken by chiropodists in the National Health Service is not considered excessive. Nevertheless there are foot care assistants being trained and employed in the National Health Service whose training requirements are somewhat shorter.

Nuclear Power: UK Expertise
2.45 p.m.
Viscount Hanworth Viscount Hanworth asked Her Majesty's Government:
In the event of a postponement of further orders for nuclear reactors, what steps they will take to ensure that United Kingdom expertise on this subject is not lost.
Viscount Ullswater: My Lords, Nuclear Electric will be operating its existing stations until well into the next century and will complete and operate the PWR at Sizewell B. This will maintain a significant body of expertise. The Government will review the prospects for nuclear power in the longer term in 1994.
Viscount Hanworth: My Lords, I thank the Minister for that reply. However, is it not sad that having started in the nuclear energy field, if we wait another four years we shall almost certainly have to buy nuclear plant off the shelf from a foreign nation? Does the Minister agree that it was a major mistake not to continue with Hinkley C?
Viscount Ullswater: My Lords, the public sector company, Nuclear Electric, is responsible for 13 nuclear stations employing 14,000 people and contributing around 18 per cent towards the country's electricity needs. The company is building the first PWR at Sizewell B with start-up scheduled for early 1995. The Government will review the position in 1994, taking account of the environmental arguments for nuclear power. That hardly adds up to the end of nuclear power in this country, as the noble Viscount predicts.
Lord Ezra: My Lords, while it is important that we maintain an expertise in nuclear power, does the noble Viscount agree that there should be a proper balance in our research into all forms of energy, in particular into the more efficient use of energy?
Viscount Ullswater: My Lords, as the noble Lord is aware the Government pay a great deal of attention to energy efficiency. However, in the short term the perceived need for the amount of power being generated would include Sizewell B.
Lord Stoddart of Swindon: My Lords, in the United States there has not been a nuclear power station commissioned for the past 15 years. Can the noble Viscount say whether that factor has injured the United States nuclear energy business?
Viscount Ullswater: My Lords, I am sure that the noble Lord will realise that the United States and Europe, especially Eastern Europe, are extremely concerned about the environment. One of the reasons
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we have consistently maintained the use of nuclear power is so that we do not damage the environment by burning fossil fuels.
Lord Williams of Elvel: My Lords, perhaps the noble Viscount will respond to the question asked by my noble friend Lord Stoddart of Swindon. Has the fact that no new nuclear power stations have been commissioned in the United States set that country back in terms of nuclear technology?
Viscount Ullswater: My Lords, I cannot give the noble Lord an answer. If I find any evidence on that matter I shall write to him.
Lord Lloyd of Kilgerran: My Lords, the Minister clearly implied by his answers that the expertise in the field to which he referred is important and valuable. Have the Government taken steps to ensure that such expertise—subject to secrecy arrangements—is capable of being and will be exploited internationally for the benefit of the United Kingdom economy?
Viscount Ullswater: My Lords, there are still very good opportunities for the nuclear industry. The nuclear industry inspectorate will continue to inspect our nuclear stations and the Government are committed to maintaining its staffing levels. BNFL has fruitful overseas markets to exploit; the AEA's expertise is much in demand and it is diversifying its business. NNC Limited has been working on Sizewell and the fast reactor. Contractors will be working on Sizewell B until 1994 and that work is currently providing 10,000 jobs across the country. If nuclear power proves to be more competitive with other fuels by 1994 there may be new nuclear construction work in the future.
Lord Lloyd of Kilgerran: My Lords, I am obliged to the Minister for that comprehensive reply.
Viscount Montgomery of Alamein: My Lords, the French are now building nuclear power stations in series and have therefore reduced the cost of the construction process. Is the Minister able to reassure the House that we have good arrangements with the French for using that technology as and when we require it?
Viscount Ullswater: My Lords, I know that the department studies very carefully what the French do. However, it would not be right to say that to purchase a PWR from the French would necessarily be a cheaper option as the nuclear installations inspectorate is very careful of our safety in this country.
Lord Williams of Elvel: My Lords, referring to the question put by the noble Viscount, Lord Montgomery, does not the Minister accept that the French PWR is Westinghouse technology?
Viscount Ullswater: Yes, my Lords.
Viscount Hanworth: My Lords, the noble Viscount said that there are and will remain a great many people in the nuclear field, but does he accept that as Hinkley Point C is not going ahead the designers will not be available in the future?
Viscount Ullswater: No, my Lords, I cannot accept that argument. It will take until 1995 to get Sizewell B up and running. If the decision is taken in 1994 to

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build further PWRs—I cannot say whether or not that decision will be taken—the designers will still be in this country.

NHS Trusts
2.51 p.m.
Lord Molloy asked Lord Molloy asked Her Majesty's Government:
Whether they will ensure that self-governing hospitals remain within the National Health Service
Baroness Hooper: My Lords, NHS trusts will remain fully part of the National Health Service and will continue to provide services for NHS patients free of charge at the point of use.
Lord Molloy: My Lords, I thank the noble Baroness for that reply. Is she aware that recently the Prime Minister herself said that self-governing does not mean leaving the NHS altogether? Can the noble Baroness explain what that means? In circumstances where the majority of doctors and nurses wish to remain totally within the NHS, will their desires be acknowledged? Thirdly, can the noble Baroness—
Noble Lords: No!
Lord Molloy: Thirdly, can the noble Baroness please explain what the inclusion of the words "other units" means? Many people would like to have that information.
Baroness Hooper: My Lords, I am happy to assist the noble Lord by making absolutely clear that NHS trusts will not opt out of the National Health Service. That has been said on many occasions prior to the statement made by the Prime Minister to which the noble Lord referred. They will remain firmly part of the National Health Service. They will continue to provide treatment free of charge at the point of delivery. However, what will change is that they will take over responsibility for their own management from district health authorities. The "other units" to which the noble Lord referred are, for example, ambulance units, not just hospital units.
Lord Ennals: My Lords, I am somewhat puzzled. Is the noble Baroness suggesting that those who run the NHS trusts will be employed by the National Health Service as opposed to being employed by the trusts and that the premises will continue to be in the ownership of the NHS rather than the ownership of the trusts? Secondly, how can the Government justify spending million of NHS money on Conservative propaganda in the leaflet, The NHS Reforms and You, which is to go to every household? The Government attack the BMA for propaganda, paid for by the doctors, but their own propaganda is paid for by the hard-pressed taxpayer. Does the noble Baroness agree that that is the situation?
Baroness Hooper: My Lords, if the BMA had not carried on such an unnecessary campaign perhaps it would not have been necessary to have had this leaflet in the first place. Having said that, certainly in regard to the NHS trusts the employees will be employed by
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a trust which is a unit within the National Health Service. That means that those employees are within the NHS.
Lord Ennals: My Lords, did I mishear the Minister? Did she say that the purpose of the taxpayer-funded campaign on the NHS reforms was in retaliation against the doctors' campaign against aspects of these reforms? Is that the set-up?
Baroness Hooper: My Lords, that is another question. Nevertheless, it is important that the patients, or consumers, who will benefit from our reforms should understand perfectly and properly what those reforms are, and not be misled.

Community Care Policy: Implementation
2.54 p.m.
Lord Carter Lord Carter asked Her Majesty's Government:
Whether the plans for community care set out in the National Health Service and Community Care Act 1990 are to be introduced in full and without delay in April 1991.
Baroness Hooper: My Lords, we intend that our community care policy should get under way on 1st April 1991. As we have said for all our plans under the National Health Service and Community Care Act, implementation will be evolutionary.
Lord Carter: My Lords, I thank the noble Baroness for that reply, but it is becoming increasingly clear why the Government have so adamantly refused any form of ring-fencing or earmarking of government funds for community care. Is the Minister aware that in this House on 8th May, in another place on 27th June, and again in this House on 28th June, a succession of Ministers gave repeated assurances that adequate resources will be made available next April for the proper funding of the full community care plans as set out in the National Health Service and Community Care Bill? The Bill received Royal Assent on 29th June. Does the Minister agree that it would be a record to renege on such an important commitment within three weeks of making it?
Baroness Hooper: My Lords, we considered very carefully the arguments for ring-fencing which were advanced by the noble Lord, among others. However, we believe that many of those arguments could be applied to other local authority programmes. We are not seeking to take over responsibilities of local authorities for community care but to support and encourage them by providing the right legislative and financial framework and helping to develop good managerial and professional practice. We shall continue to do that between now and the full implementation of the community care arrangements.
Lord Carter: My Lords, that is not an answer to the question I put to the Minister. My question was not about ring-fencing, which was a comment I made in passing. Are the plans to be introduced in full and without delay on 1st April 1991 as we have been told repeatedly in this House and in another place?
Baroness Hooper: My Lords, perhaps that will teach the noble Lord that it is not wise to make

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comments when asking questions. There is nothing further that I can say about the timetable except that we remain firmly committed to our policy on community care. The legislation is now in place and I know that the principles underpinning the policy are widely endorsed by those in the field.
Lord Ennals: My Lords, is the Minister saying that she is, or is not, committed to the timetable accepted in the legislation to which my noble friend referred; namely, that it should be implemented from 1st April 1991? If she is not, will she please say so? Is the noble Baroness aware that local authorities and voluntary organisations who are providing community care—and the 6 million carers themselves—will be absolutely shocked if the Government do not proceed with the legislation which both Houses have recently passed? Would that not be a cynical betrayal for electoral purposes?
Baroness Hooper: My Lords, I am well aware of the many people in the field and throughout the service who are interested in the implementation of our community care proposals. I have said on previous occasions that we are delighted at the welcome given to our proposals. As I said in my original Answer, we still plan that implementation of the arrangements should get under way on 1st April 1991. Nevertheless, as I am sure the noble Lord is aware, an Opposition debate on community care implementation in another place is scheduled for Wednesday of this week. No doubt my right honourable friend the Secretary of State will then make a statement about the timetable. I cannot anticipate the contents of that statement today.
Lord Renton: My Lords, is it not refreshing to find noble Lords opposite so enthusiastic about the implementation of government legislation? Would they not be wise to accept the assurances that my noble friend has given?
Baroness Hooper: To that, my Lords, I can only say yes.
Lord Tordoff: My Lords, in the absence of any such assurances as to the completion of the process within reasonable time, is the noble Baroness aware that many people in the community care services are in a state of total bewilderment as to what is to happen? May we have an assurance that the statement to be made, we understand, on Wednesday will be repeated in this House? I am sure that noble Lords on all sides will wish to question the Minister on this subject.
Baroness Hooper: My Lords, in my experience those arrangements are left to the usual channels.
Lord Allen of Abbeydale: My Lords, the use of the word evolutionary fills one with foreboding. Does the Minister appreciate that, from all we read, the Government are managing to give the impression that they simply did not do their sums when they decided at last to implement the main Griffiths recommendations? That caused us to spend hours and hours trying to make sure that what they were proposing was being done correctly. Contrary to the impression given by the media, and if the matter has not yet been decided,
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does not the Minister agree that the Government would be well advised to pause and reflect? Is she aware that the possibility of avoiding a small increase in the poll tax, which appears to be one of the relevant considerations, has to be set against the disappointment and frustration which will be widely felt at prolonging the hardship of many elderly, disabled and mentally handicapped people and, as has been pointed out, the 6 million carers?
Baroness Hooper: My Lords, throughout our many discussions on this topic we have always made it clear that much of the detail had still to be sorted out. We certainly do not wish to slow down authorities who are getting ahead with their work on agreements with other agencies, planning their services and moving their approach to one of greater consumer and client orientation.
Lord Ennals: My Lords, are the Government to provide the money to enable the local authorities and the voluntary organisations to go ahead with implementing the legislation passed by both Houses of Parliament?
Baroness Hooper: My Lords, no doubt that will be made clear.

Business
3 p.m.
Lord Denham: My Lords, it may be for the convenience of the House to know that the Committee stage of the British Nationality (Hong Kong) Bill will be adjourned at about 7 p.m. for about one hour and that during this adjournment the Redundancy Payments (Merchant Seamen Exclusion) Order 1990 will be taken.

Representation of the People Bill
Lord Allen of Abbeydale: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Allen of Abbeydale.)
On Question, Motion agreed to.

Marriage (Registration of Buildings) Bill
Viscount Brentford: My Lords, I too understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Viscount Brentford.)
On Question, Motion agreed to.

British Nationality (Hong Kong) Bill
3.2 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 CHAIRMAN OF COMMITTEES in the Chair.] Clause 1 [Acquisition of British citizenship]:
Lord Mishcon Lord Mishcon moved Amendment No. 1:
Page 1, line 6, leave out ("shall") and insert ("may").
The noble Lord said: It may be for the convenience of the Committee if I, speaking from these Benches, were to express a certain view as to how I feel the Committee might want to deal with this stage of the Bill. Obviously the Minister will respond either immediately or in due course. It is the wish of the Government that this Bill be enacted as soon as possible in order, as they see it, to deal with the morale of the people in Hong Kong.
While we, from these Benches, have said that we do not like the basis of the Bill which deals with a points scheme, we too are anxious that as much as possible should be done for the morale of the people of Hong Kong. Therefore, it is my wish and that of those who sit on these Benches that the Committee stage of this Bill be dealt with as expeditiously as possible. With that end in view, the noble Earl has been kind enough to write and tell me that, from the Government's point of view as well, if there are no amendments passed at this Committee stage the Report stage will be moved immediately. But, in his usual kindly way, the Minister said that at Third Reading account will be taken of all that is said at Committee stage on these amendments and amendments can be moved at Third Reading.
There are some important amendments before the Committee this afternoon. I think it will be regarded as fair when I say that the Government have had a very long opportunity to consider the amendments that have been put down. The majority of them are a repetition of amendments that were tabled—if not in the precise words but the principle is the same—in the other place. I repeat: I hope that it is fair to say that quite obviously I am not going to ask for Divisions merely for the sake of them. However, on these essential matters I hope that the Minister will be able to say that the Government recognise the principle behind the important amendment and will deal with it appropriately at Third Reading. Therefore, I shall not be blamed for holding up the Bill—which I do not want to do—if I am forced to call for a Division despite the wish of all of us on these Benches to speed this Bill through. As I have said, the principle of the points system is one that we do not like. What we want to do in co-operation with the Government, and I should think with the support of all parts of the Committee, is to see to it that the morale of the people of Hong Kong is kept as high as it possibly can be.
My first amendment is one of principle. The Committee will see that the amendment provides that the word "may" shall be substituted for the word "shall". I ask Members of the Committee to turn to Clause 1 of the Bill, where it will be seen that there is a mandatory provision in subsection (1) that,
"the Secretary of State shall register … up to 50,000 persons recommended to him for that purpose by the Governor of Hong Kong".
It is a strange constitutional position when one finds that it is no longer the Secretary of State who has complete discretion concerning the award of British nationality. It is passed over not only to the Governor, for whom personally one has the greatest respect, but to a committee that will do most of the work, so we are told. I repeat that it is an odd situation which even the explanatory note to the Bill does not seem to like very much. We are told that it is mandatory on the Secretary of State to register applicants decided on by the Governor and committee.
When I refer to the explanatory note perhaps the Committee will look at the second paragraph which states:
"Clause 1 (taken with Schedules 1 and 2) enables the Secretary of State to register …".
In view of the word "shall" it should read,
"Clause 1 …orders the Secretary of State to register".
As I have said, that is not just a matter affecting this Bill, but one that affects the grant of British nationality wherever it may be granted. Are we in Parliament to say for the first time, as I understand it in this context, that the Secretary of State is to be put into a position where he has to accept what the Governor and committee say in Hong Kong, and register, and where Members of this House and of another place will presumably be debarred from asking any questions concerning the registration? The answer will be, "You have passed a Bill which has become an Act. You provided that, whatever the Secretary of State may feel, he has to register as British nationals those whose names are given to him by the Governor and committee in Hong Kong". I beg to move.
Lord Bonham-Carter: As a relatively new Member of the House, I have watched with some amazement and incomprehension the minuet being conducted by the noble Lord, Lord Mishcon, and the noble Earl, Lord Ferrers. I too received a letter from the noble Earl which, spoken in plain English, said that the Government would accept no amendments at the Committee stage but that they would of course listen to them at Third Reading. Are we not therefore rather wasting our time? Would it not be better to go to Third Reading and get on with it? The fact of the matter is that the Government who are responsible for the business of this Chamber have allowed it to become so congested in the past fortnight that the noble Earl, Lord Ferrers, may be up all this week and all next week on this Bill and on the Broadcasting Bill. There will be no time properly to discuss this important measure.
If the Government had organised their business a little better, we could have discussed the Committee

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stage earlier than this. We would not then have had to go through the farce of making a case for amendments which the Government will not accept, moving on to Report, and finally going to Third Reading when by some chance it may be possible that the Government will listen to the amendments. I state it plainly that I find this a most unsatisfactory way of proceeding with legislation of great importance to this country, to its reputation and to at least 3 million British subjects in Hong Kong.
We have some responsibility for those people. Just because the Government cannot organise their business better we are riding roughshod over the proper discussion of a serious erosion of their rights. I do not regard "shall" and "may" as matters of fundamental importance. It is my view that the Governor of Hong Kong is probably in a far better position than the Secretary of State to judge who should or should not be registered under the scheme, with all its defects. I therefore do not particularly support the amendment, but I wish to place it on record that the way we are dealing with the Bill is little short of frivolous.
Lord Mishcon: I hope I shall be forgiven by the Committee, but I find it necessary to rise immediately after the noble Lord, Lord Bonham-Carter, has completed his remarks. He is always courteous and he is usually accurate. This time he was courteous but not accurate.
The letter that I received from the Minister—the noble Earl will speak for himself—made it perfectly clear that, if an amendment were acceptable to the Government, the Third Reading stage would be used for the purpose of making that amendment. I have made it perfectly clear that I cannot accept a position whereby the Opposition regard an amendment as fundamental, but the Minister is not able to say that he accepts the principle of the amendment. I excuse myself to the Committee if I have to divide it when all I want to do is to speed the passage of the Bill—only for the reason that I have given, which is for the sake of the people of Hong Kong.
3.15 p.m.
Lord Tordoff: I rise in support of my noble friend Lord Bonham-Carter. That one should have to apologise to the Committee for having to divide it on an important Bill underlines the ludicrous nature of the position that we have got ourselves into. On these Benches we want to see the Bill on the statute book. It is not the best Bill, but it is the only one we are going to get. For the benefit of the people of Hong Kong it must be on the statute book early. However, my noble friend is quite right. It is a grave discourtesy to the House to be put into a position whereby somebody has to apologise for the possibility of having to divide the Committee on a matter on which the Government do not agree. I feel that I have to defend my noble friend from what was said by the noble Lord, Lord Mishcon.
Lord Geddes: If I heard him correctly, the noble Lord, Lord Bonham-Carter, said to the Committee
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that the letter that he had received stated quite clearly in his opinion that the Government would not accept any amendments. Unless he received a letter which is totally different from mine, it said nothing of the sort.
Lord Howie of Troon: The Committee will be extremely pleased to learn that I have not received a letter from anyone. If I were to advise the Government, I would tell them to follow that precedent and send letters to no one. It seems to cause nothing but alarm and despondency on the Benches in front of me.
I want to support my noble friend Lord Mishcon though I dissent, as my Front Bench knows, from my party's general view on this Bill. The Government are being quite sensible up to a point, which is as far as one would expect them to go. I want "may" rather than "shall" for wholly chauvinistic British reasons. I look at the Bill as a wholly pragmatic matter and not as a moralistic one. The morals of it are at best dubious. We are doing as best we can in murky circumstances. However, as a pragmatic matter, we should try to arrange the Bill to the best advantage of Hong Kong and of Britain. It may be difficult to reconcile those two aspects of the matter, but I think that we could have them both in our minds.
There are in Hong Kong a substantial number of architects and engineers who are employed by British consultants, either consulting engineers or consulting architects. As Members on all sides of the Committee will know, the consulting industry is one of the major contributors to the credit side of the balance of payments, such as it is. The firms of consulting engineers and architects are suffering a grievous handicap. Although they have among their employees in Hong Kong a very substantial number—and in most cases a substantial majority—of employees who are Hong Kong Chinese, they are seeing those employees leaving their employment in Hong Kong to seek abode in Australia, Canada, Singapore or more or less anywhere which will have them. That is imposing a severe burden on the continuing business of British consulting firms. It is very much to their disadvantage and very much to the disadvantage of our balance of payments.
I support "may" rather than "shall" for a simple reason. The schedules which we have seen are inadequate in the proportion of such persons who are included among the 50,000 families. The entire question of how many engineers, architects and other consultants are included among the 50,000 should be kept as open as possible. The proportions put forward by the Government are far too low.
There are around 600 members of the RIBA in Hong Kong and more than 1,000 members of the Institution of Civil Engineers. There are also members of the other institutions—the Institution of Mechanical Engineers, the Institution of Electrical Engineers, and so on. The Hong Kong Institute of Engineers (which I visited last October) has around 10,000 members, some of whom are expatriates, the majority of whom are Hong Kong Chinese. The majority of the Hong Kong Chinese are employed either by the Hong Kong Government or by British

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companies operating in Hong Kong. Those people are of importance both to Hong Kong and to us. We must not be too moralistic about this. Our interests in this matter are important, too. As an engineer, I was rather pleased that architects were included under engineers, though I do not think the architects were as pleased as I was. However, the proportion is wrong. Far too many businessmen and suchlike are included among the Government's schedules, and there are far too few professional people, who are the doers, the makers and the contributors to the well-being of the world as a whole.
In my view, we should have a situation where the Secretary of State has the right, the capability under the law, to examine the proposals of the Governor of Hong Kong and if he has any sense at all—which I am perfectly sure he has, although judging by the conduct of Secretaries of State in recent days I begin to wonder—he will ensure that the highest possible proportion of those who are allowed a right of abode in Britain come from that technological side of the population of Hong Kong. It is a small country, or colony, the technological contribution of which is second to none. We should try to take advantage of that fact both for the benefit of Hong Kong and of ourselves. As I said, I support the amendment moved by my noble friend on the Front Bench.
Lord Renton: There are a few noble Lords on each side of the Committee who, like myself, have had the privilege of being either Minister of State or Under-Secretary at the Home Office, or both. In our experience we knew that, if we were handling that side of Home Office work, the grant of nationality and a passport were both matters of discretion. It was a discretion exercised by the Secretary of State and sometimes by a junior Minister on his behalf; it was a discretion which had derived from the exercise in earlier times of the Royal Prerogative.
Therefore, I must confess that, from the purely technical point of view, I consider the amendment moved by the noble Lord, Lord Mishcon, deserves careful consideration by the Government, especially as subsection (5) of the clause says:
"Neither the Secretary of State nor the Governor shall be required to give any reason for any decision made by him in the exercise of a discretion vested in him by or under this Act and no such decision shall be subject to appeal or liable to be questioned in any court".
Perhaps I may mention in passing that I find it strange and inconsistent with what the noble Lord said in moving Amendment No. 1 that he should want by way of a later amendment—Amendment No. 5—to remove that subsection from the Bill. I should have thought that if he wants the word in subsection (1) to be "may", then in confirmation of the argument which he used for having this word, we should also retain subsection (5).
As it is the first time I have spoken during the proceedings on the Bill, perhaps I should come clean and tell Members of the Committee that I helped the late Lord Butler of Saffron Walden in the preparation and piloting of the Commonwealth Immigrants Act 1962 in another place. I should also say that I became
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quite notorious for wanting the population of the United Kingdom not to be increased to any great extent. I still hold that view. However, in the very special circumstances of Hong Kong, where I have never been, I am persuaded by the arguments which have been put forward that we should make a special exception in favour of up to 50,000 people from Hong Kong.
I am most anxious to hear what my noble friend Lord Ferrers will have to say about this first amendment but, as I said, from the purely technical point of view, it seems to be worth consideration.
Lord Marsh: The problem here is that this is an almost unique situation where a comparatively large number of people will have British citizenship conferred upon them very quickly and speedily. It is essential that it does happen very quickly and speedily. As this is the first time I have spoken on the Bill, I should declare an interest in that I am chairman of a public company situated in Hong Kong the activities of which are concerned with direct and indirect investment in the People's Republic of China.
I take the point made by the noble Lord, Lord Howie. There is a need to ensure that people from a wide range of professions are included in this number. I hope that the number will be increased. There are many people engaged in commercial activities within the colony who we would hope would remain. These are people with special skills. Many of them are Chinese and they have a unique relationship with the People's Republic of China. They are needed just as much as civil servants and members of the police force, and so on.
Therefore, the overwhelming need in this case is for speed. The issues have been discussed very broadly both within and without this Chamber. The issues are well-known. However, the degree of misunderstanding, of concern and cynicism which exists—in my view wrongly and unfairly—within the colony is very considerable. The quicker it is made clear that the Government will bring in these powers for the allocation of British citizenship to at least 50,000 people the better. I say that because until people in the colony see that this has actually happened the concern will simply grow. Given the circumstances in which we find ourselves at this time of the parliamentary calendar, and regardless of what other problems of the management of government business there may be which have brought us to this stage, I hope that we shall proceed with the Bill as quickly as possible.
I see the difference between the words "may" and "shall" as relating to a minimum figure of 50,000 people. Moreover, apart from a few aberrations among senior politicians in another place who should know better, I do not think that anyone believes that the figure could realistically be less than 50,000. Therefore, I hope that we shall proceed on that basis, and that this Chamber will play its part in getting the Bill through and enacted. That would give the people of Hong Kong a genuine belief that we are concerned to ensure a level of stability in the colony after we have handed over sovereignty which they can recognise,

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which will cause key people to stay there and which will give the Chinese less concern and worry than they have at present.
Earl Ferrers: Perhaps I may first deal with a procedural problem. I find the noble Lord, Lord Bonham-Carter, a most charming but, if I may say so, a most difficult person with whom to deal. I merely tried to be helpful to Members of the Committee. I have often said that I learnt at school about Boyle's law, Ohm's law and Faraday's law and that I am tempted to introduce a law which I would call "Ferrer's law", which says quite simply that everything has the reverse effect of that intended. I wrote to those noble Lords who took part in the Second Reading debate. I did not write to the noble Lords, Lord Howie and Lord Marsh, because they did not take part in the proceedings. The letter was supposed to be helpful.
Lord Howie of Troon: I should tell the noble Earl that that omission left me unconfused.
Earl Ferrers: I must say that I am delighted for any excuse not to write letters, and I am even more delighted for any excuse not to read them. I tried to point out in the letter the fact that the Government had no intention of tabling amendments in Committee. However, that did not mean that noble Lords would be prevented from tabling any amendments and voting upon them. Nevertheless, on the assumption that there were no Divisions and that the Bill was not amended, I would have moved that the Report be not received and that we should miss out the Report stage of the Bill. However, I also added in the letter that, if there were no Report stage, all the points which were mentioned in Committee would be taken carefully into consideration by the Government to see whether there should be any adjustment on Third Reading. That was supposed to be helpful. But along comes the noble Lord, Lord Bonham-Carter, who says that it is not at all helpful.
The noble Lord, Lord Mishcon, said that the noble Lord, Lord Bonham-Carter, was normally courteous and accurate but that this time he was courteous but inaccurate. I thought he was discourteous and inaccurate because he said that the Government were being frivolous and were treating the Committee in such a way that the noble Lord, Lord Mishcon, would have to apologise for what he proposed to do. I am not surprised that his noble friend Lord Tordoff supported him because I do not suppose that anyone else would have done so.
The noble Lord, Lord Mishcon, was entirely fair. He said that he did not want to be accused of delaying the Bill by calling Divisions and that he hoped we would take into account all that was said. Of course we shall, but I hope he will also realise that if he does not call a Division I do not want to feel propelled into a cul-de-sac by being made to feel obliged to consider everything that the noble Lord said and did not divide upon with the greatest sincerity and put it into the Bill on Third Reading. We shall consider everything that
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has been said with the greatest care, but it is only right to make that point clear; and I am sure that the noble Lord, Lord Mishcon, will understand.
Having got over that hump—a hump that was supposed to be a helpful addition to the proceedings—perhaps I may come to the substance of the amendment. We accept that it is the Home Secretary who should have the final say on whether applicants are acceptable as British citizens. The Bill protects that important principle since it provides for citizenship to be withheld if the Home Secretary has reason to believe that a person is not of good character.
If we insert the word "may" in place of "shall" it will mean that the Secretary of State may register as British citizens up to 50,000 people. It also means that he may not. It would not be sensible to require the Home Secretary to review the Governor's judgment about which applicants are of the greatest value to Hong Kong. The amendment would require him to do so. The noble Lord, Lord Marsh, ran into an error because he thought that the insertion of the word "may" would mean that the Home Secretary may approve over 50,000 applicants. If "may" were to be inserted it would not meet the point made by the noble Lord, Lord Marsh, because all that it would do would be to provide that the Home Secretary may register as British citizens up to 50,000 applicants. It would not allow him to go beyond 50,000.
If the amendment were accepted, it would give the Home Secretary an unfettered discretion to reject anyone who had been selected by the Governor. In order to discharge that discretion properly, the Home Secretary would have to review the relevant merits of any applicant and would have to be provided with information to enable him to do so. The government view is that nothing would be gained by drawing the Home Secretary into the selection process in that way. This is a Bill for the benefit of Hong Kong. It is the Governor who is responsible for Hong Kong's administration and it is he who will have the local knowledge necessary to enable him to identify those of greatest value to the territory.
The Governor's selection will be constrained by the scheme which Parliament will have approved. The Order in Council will set out the criteria and points in considerable detail. However, to the extent that discretion has to be exercised, whether in relation to groups or individuals, the Home Secretary would have no basis upon which to substitute his judgment for that of the Governor, upon whom he would be dependent for advice.
The amendment would not improve the quality of the decision taken; but in making it necessary for the merits of each case to be considered not once but twice—by the Home Secretary as well as by the Governor—it would prolong the process substantially and therefore risk delaying the scheme's impact on confidence in Hong Kong. I hope that the noble Lord, Lord Mishcon, will see that point and will consider that on the whole the word "shall" is better than "may".
3.30 p.m.
Lord Mishcon: In view of the reasonable spirit in which the Minister spoke, especially when he referred to my remarks and said that he agreed with them, I should love to be able to say that I am going to withdraw the amendment because I am satisfied with what he has said. I cannot say that. Mine was a question of principle. It was one which was followed by the noble Lord, Lord Renton. A Secretary of State is not expected to go though every application and the marking system. All that he is required to do is to register the Governor's recommendations, he having exercised his discretion because discretion is implicit in the word "may".
If the noble Earl will forgive me, I shall quote what the Minister, Mr. Lloyd, said in Committee in another place. He said that he was going to take advice on the point, but I do not believe that the advice has ever been altered. At col. 63 of the Official Report of Standing Committee A on 8th May he said:
"As I understand it, the Secretary of State has to accept those who are registered under the system laid down by Parliament for which the Governor produces 50,000 names. He would have no option but to register them if they were of good character".
That would create a wrong constitutional precedent for our gift of nationality to be taken from the discretion which, as the noble Lord, Lord Renton, says, has always been vested in the Secretary of State.
The Minister gives us in answer to the point that there will be uncertainty in Hong Kong because the people of Hong Kong may feel that that may not necessarily follow: that the 50,000 names will be registered. There have been enough repetitions of the statement by the Secretary of State in another place, and I am sure there would be no harm if that were repeated. I am sure that it would be accepted at its face value in Hong Kong if he were to say that it is definitely his intention to see that 50,000 names are registered as British subjects. All I want to do is to ensure that there is no phrase in an Act of Parliament which gives someone, without Parliament or the Secretary of State having a say in it, the grant of British rationality by a committee—in practical terms that is what it will mean—nominated, if not elected, by the Governor.
Lord Renton: I am anxious that the noble Lord should not come to a conclusion until I have suggested to him and to my noble friend that there may be a bridge which will enable the two points of view to be reconciled. That bridge depends upon whether my noble friend can say that "register" merely means register and that it does not carry with it the automatic grant of nationality or a passport without any more ado. If that be the case, the word "shall" is appropriate. If it be not the case, I should think that "may" is appropriate.
Lord Mishcon: The noble Lord is always helpful except when he opposes anything that I try to say. On this occasion he has been of great use. I wonder whether the Minister will reply to that intervention because it will dictate the course I take. If the principle that the noble Lord, Lord Renton, has helpfully
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supported can be brought about, the last thing in the world I want to do is divide the Committee. As a matter of principle, if there is no concession I have no alternative.
Lord Marsh: Before the noble Lord sits down, perhaps I may ask him a question. Is it his view that if the amendment is accepted the individual circumstances of any one of those 50,000 people could be subject to being raised in Parliament? If that were so, I should certainly be opposed to it.
Lord Mishcon: No more than any other person applying for British nationality could now question, through a Member of Parliament, the Home Secretary's decision in regard to nationality. I am trying to put it on an equal basis with any application for British nationality, with the Secretary of State having made a clear pronouncement that it was his definite intention to register 50,000 of the citizens of Hong Kong who were recommended to him. As the noble Lord, Lord Renton, put it, it will be an essential factor that in due course the Secretary of State registers, but that does not remove from him the discretion that he has in regard to every application.
Lord MacLehose of Beoch: It is with great diffidence that I intervene in a constitutional matter of principle. The noble Lord, Lord Mishcon, drew the parallel of the British Nationality Act. There is no parallel here because the number of citizenships being issued is limited. This means that until the total number is known the citizenships cannot be issued. This in turn means that if each one is subject to review, or many of them are, none of the 50,000 can be issued. That is the problem. As the noble Lord, Lord Marsh, said, it is an emergency measure to improve morale in Hong Kong. But if it is to be held up by these constitutional niceties I fear that it will miss the mark.
Lord Mishcon: I wish I could agree with the word "niceties" because that is not my intention. To interfere with the passing of a Bill or to try to put to the Committee an amendment purely for the purpose of a nicety would never be my intention in a Bill of this kind. A principle is involved. If one thinks in terms of practicalities, one knows perfectly well that the Home Secretary will take a great deal for granted in regard to the recommendations made to him. The last word on exercising discretion—whether he does anything about it or not—remains on the statute book as the discretion of the Secretary of State as to where British nationality is given. It does not rest in a mandatory way with a governor or any committee of a governor.
Lord Bonham-Carter: I propose to be helpful to the noble Earl, Lord Ferrers, not because of the reproof delivered to him but because of the genuine respect in which I hold him. I cannot accept the case made by the noble Lord, Lord Mishcon. It seems to me that the remarks made by the noble Lord, Lord MacLehose, are conclusive. This is a practical matter concerned with how to deal with an emergency situation. It seems to me that the Governor of Hong Kong is in a far better position than the Home Secretary in London to know who should or who should not be registered as a British citizen. Therefore my colleagues and I on

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these Benches would be tempted to vote in favour of the Bill as it stands rather than support the amendment.
3.45 p.m.
Lord Shepherd: I did not speak on Second Reading but I have had a long connection with Hong Kong. I went there first in 1950 on business. There has hardly been a year since then when I have not visited the colony for one purpose or another. Therefore I believe that I can claim that I have seen the way in which the colony has evolved, growing in numbers, emerging in stature and in every form of respect. I can understand therefore what 1997 is bound to mean for some of those in Hong Kong. I say "some of those" because many—the vast majority—remain at heart, although they work, earn their living and live within Hong Kong, still part of mainland China. We are concerned today with the others who have emerged during that period.
Many years ago I was discussing the Labour Government's decision as to why India was granted independence within six months. The noble Lord, Lord Pethick-Lawrence, as he then was, had been Secretary of State at the time. His explanation to me was that if independence had dragged on a question would always have been at the back of the minds of the civil servants and the judiciary in India as to where their loyalty lay. Did it lie with the viceroy or with the emerging political leadership of India? It was felt strongly then that what we could best bequeath to India was the quality of the judiciary and the Civil Service. The decision was taken in order to allow stability to remain in India up to the moment of independence.
I see this Bill solely within that context—how Her Majesty's Government and the Governor can maintain the loyalty of the Civil Service and the industrial community so that over the period running up to 1997 a firm, stable government may be retained. There is no doubt, as the amendment of the noble Lord, Lord Mishcon, indicates, that many people living in Hong Kong will find themselves in a position where they have no nationality. I do not know how that can be dealt with because many would find it difficult to establish a relationship with any country other than the colony of Hong Kong.
Here I share the anxiety of the noble Lord, Lord Marsh, that the Bill should be passed as soon as possible. I have only one concern over the procedures that we adopt. We may be persuaded not to vote today but to take the amendments next week on Report and Third Reading, only to find that an amendment we are asked to accept is defective. We may then have difficulties in dealing with it. The noble Earl, Lord Ferrers, said that that may not be so. As one who has been in government, I found that where amendments were passed in Committee, at the last moment the parliamentary draftsmen felt that further amendments were required. I should find it difficult in some respects to follow my noble friend Lord Mishcon into the Division Lobby. However, since we seem to be
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discussing the whole issue, without any hesitation I should support the amendment of the noble Lord, Lord Bonham-Carter.
The difficulty is whether 50,000 is the right figure. It may be less; it may be more. If we say that British citizenship should be granted to those who are necessary for the stability and good governance of Hong Kong, I do not know what the figure is. I doubt whether the Governor knows, or even the Secretary of State. My anxiety is that if at the last moment it appears that it should be 54,000, 55,000 or some figure like that, we may then leave out certain hard cases. I ask the Government to consider 50,000 as a benchmark figure.—that is a figure which most people appear to be satisfied with at the moment—but to at least allow the Governor and the Secretary of State one last loophole. Therefore if there is a need to grant further British citizenship for the sole purpose of the stability of Hong Kong, the Secretary of State could by order, if necessary by order, made under the affirmative resolution procedure, take such a step. In other words, it is neither open to the Governor nor to the Secretary of State to make such a provision willy-nilly. However, at least we would give the Secretary of State a mechanism for further action. None of us knows what 1997 will bring. It is far better to allow the Government a degree of flexibility, taking the figure of 50,000 as a benchmark.
I hope this Bill will be passed as quickly as possible and that some flexibility will be left within it around the benchmark of 50,000. However, the Committee must not misunderstand what will confront the present Governor or his successor between now and 1997. They will be confronted with a major task. I do not believe that the Secretary of State can say that it is for the Governor to make the decisions. In the end the responsibility will be laid before the Secretary of State and the British Parliament. I beg the Government to consider at this final moment whether a degree of flexibility could be introduced so that wise heads could be employed to make further decisions if circumstances so dictate.
Lord Harmar-Nicholls: I Believe that the noble Lord has carried the debate beyond the point of this amendment. However, as the amendment is so fundamental, we should come back to it if we possibly can. As I understand the position, the point that the noble Lord, Lord Mishcon, made is extremely important and fundamental. He has said that it has always been the case, and should remain the case, that the final word on nationality should come from the Secretary of State who represents Parliament and the nation. That has always been the case and that is how I personally would like it to remain.
The noble Lord from the Cross-Benches who has special knowledge of this problem agreed that that is normally the case. However, he added that this matter constitutes an emergency. He said that because of the priority that should be given to the emergency aspect of the matter, we should not necessarily follow the niceties—that was the expression the noble Lord used—of the process whereby the Secretary of State has the final word.

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I repeat that the point made by the noble Lord, Lord Mishcon, is important and it should not be glossed over. Can my noble friend say, without any hesitation, that if the Governor has been given the power to decide who shall have British nationality because this situation is considered to be an emergency, that position will in no sense set a precedent that can be used on other occasions? We know very well that on such sensitive matters, the slightest loophole will be grasped in such situations in the future and the provision may be widened in circumstances that may be fundamentally different to the current circumstances that we are at present discussing.
It looks as if the suggestion of my noble friend could get us over the immediate difficulty of this Committee stage. All who have spoken have expressed rather narrow intentions, as it were. Therefore, if it can possibly be avoided, the Committee should not give its collective opinion by a vote at the moment. I hope my noble friend will say that this matter can be reconsidered, and that he will give a categorical assurance that this provision could not be considered a precedent under any circumstances. If my noble friend can tell us that, we may well be able to find a form of words later on to meet all the points that have been made. However, at this stage I do not think that we should interfere with any future practice in a show of impetuosity because of our desire to deal speedily with this important and sensitive problem. The noble Lord, Lord Shepherd, made that point well.
Lord Howie of Troon: I agree with the noble Lord, Lord Harmar-Nicholls—he knows I often agree with him—as regards this matter being an emergency. It is an emergency and it must be dealt with with some urgency. However, we have all day and we may even have all week to deal with it. That is enough time to deal with it. The position is not only an emergency for the people of Hong Kong but also for those British companies operating in Hong Kong. The Committee knows that, as a consulting engineer, I have associations with consulting engineers and consulting architects who employ people in Hong Kong. The situation is an emergency for them because of the erosion of the technical base of the Hong Kong economy. Engineers and architects are rapidly emigrating from the colony.
I have a letter from a very well known British consulting engineering firm which employs over 300 staff in Hong Kong, 90 per cent. of whom are Hong Kong Chinese. That letter was published in The Times not long ago. I have met many of those people and all of them intend to emigrate from Hong Kong as soon as possible. Many of them have already made arrangements to emigrate. That process does not merely strike a blow at the economy of Hong Kong, but also at the economy of their employers. That is in consequence a matter of importance for this country as well as for Hong Kong. That is why I dissent from the view expressed from the Liberal Front Bench by the noble Lord, Lord Bonham-Carter, that this is a matter where the Governor of Hong Kong knows best. That is not so. He may possibly know best as
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regards what is right for Hong Kong, but he cannot know best what is right for Hong Kong and Britain. This emergency must be dealt with in the sense that it is an emergency for both countries. We must attempt to resolve it in such a way that will be least disadvantageous to both countries. We shall not, of course, obtain all we want, but we must try to follow the least disadvantageous course.
I do not think the figure of 50,000 is high enough. I would like to see a higher figure. If the figure were higher my fears could be allayed because all the engineers and architects and those in the associated professions could be included in that higher figure. However, in the context of Clause 1 as it stands, we are talking about a figure of 50,000. I believe that my noble friend on the Front Bench is right in the sense—I am not sure whether he intended this to be the effect of his remarks—that the Secretary of State will have the capacity to consider this emergency in the Hong Kong context and in the British context, and will attempt to resolve it in the least disadvantageous way to both countries. Both countries will be disadvantaged, but it is up to the Secretary of State to make a decision rather than to accept the judgment of the UK and of the Governor of Hong Kong.
Lord Lindsay of Birker: When I was in Hong Kong last year, I discovered wide mistrust as regards the courage of the Governor in standing up to demands from Peking. I have read statements from Peking which are critical about the whole process of granting British citizenship to a large number of Hong Kong citizens. It is perfectly possible that the Governor may face a demand from Peking that classes of technically qualified people, whom Peking wants, should not be given British citizenship. The Governor, when faced with such a demand, would be in a vastly stronger position if he could say that the matter of British citizenship was not purely his decision and that he could not give in to Peking's demands unless he obtained the approval of the authorities in London.
Lord Harris of Greenwich: I Wish to say a few words. The more I have listened to this debate, the more certain I am that this amendment should be resisted. In reality we are discussing a two-stage decision-making process—one decision by the Governor and one by the Secretary of State. However, on the basis of my experience in the Home Office, I can tell the Committee that the effect of such a process would be to introduce massive delays in decision-making. At the end of that, would the decisions be any different? I find it hard to believe that, unless there is an overwhelming case against the Governor's decision, Home Office officials would dream of varying it because he is the man on the spot with a clear knowledge of the situation. It has been said on all sides of the Committee that we want speed in this matter. However, I can guarantee that if the amendment were passed it would lead to massive delays in the process and, therefore, increase instability in Hong Kong.
4 p.m.
Earl Ferrets: I am grateful for the intervention of the noble Lord, Lord Harris of Greenwich, who summed up the position as we see it most succinctly. Various Members of the Committee, in particular the noble Lord, Lord Shepherd, referred to the figure of 50,000. Whether the amendment is accepted or not, the figure of 50,000 is not altered because the Bill gives the right to the Secretary of State to register as British citizens up to 50,000 people. It does not matter whether the word used is "may" or "shall"; he cannot go above that figure. Therefore, we do not need to discuss that aspect in relation to this amendment.
The noble Lord, Lord MacLehose, was right in saying that this is an emergency measure. Its purpose is to provide a scheme whereby certain people can be given British citizenship swiftly in order to overcome the problems which are peculiar to Hong Kong. If we insert the word "may", as proposed by the noble Lord, Lord Mishcon, we shall provide that the Secretary of State "may register as British citizens". That implies that he may not register as British citizens such people up to a limit of 50,000. As I have tried to explain, it could enable the Secretary of State to adjudicate or to reconsider every application. In other words, every application could be considered not only by the Governor but reconsidered by the Home Secretary. We have always taken the view that the person on the spot—that is the Governor—knows the situation and the key people who are likely to be required in Hong Kong. We believe that, unless there is a good reason for doing so, it would be wrong for the Home Secretary then to say, "Yes, we will accept those people but not those".
The noble Lord, Lord Mishcon, expressed anxiety and said that the Secretary of State always has the right to determine citizenship. So he has and he has the final right under this Bill. Clause 6 provides that the Home Secretary may refuse citizenship to anyone considered not to be of good character, even though he is recommended by the Governor and the whole scheme operative in Hong Kong. Therefore, the Home Secretary has the final say.
My noble friend Lord Renton asked whether being on the register meant citizenship. The answer is that it does. Once a person was accepted on the register—and he would not be put on the register without the approval of my right honourable friend the Home Secretary—he would be entitled to citizenship and from citizenship comes the passport—
Lord Renton: I 3am sorry but I did not hear my noble friend. Did he go on to say sotto voce, "And would entitle him to a passport"?
Earl Ferrers: Yes, I said that if one is on the register one is entitled to citizenship and from citizenship comes the right to a passport. That is a fact.
My noble friend Lord Harmar-Nicholls asked whether the Bill will act as a precedent. I confirm that the Bill is an exceptional measure to deal with an exceptional situation. We do not contemplate the acquisition of citizenship by this means as a normal feature. However, it is impossible to say what any
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future government might do. It would be wrong for me to say that no future government would treat anything as a precedent. Certainly, it is not our intention to alter the methods for citizenship. The last say as to who is acceptable as a British citizen rests with the Home Secretary.
Lord Howie of Troon: The Minister explained that for a variety of reasons, including bad character and so forth, the Secretary of State has the right to remove people from the list submitted by the Governor. Does the Secretary of State have the right to add people to the list which is what I wish to see?
Earl Ferrers: Those who are entitled to British citizenship are those referred to as suitable by the Governor of Hong Kong.
Baroness Phillips: I have listened carefully to the Minister's explanations and to Members on all sides of the Committee. I wish to clarify a simple point. Does "shall" mean that no more than 50,000 people would ever be considered? Surely, "may" means that it is open because 50,000 is a mere bagatelle as regards the situation in Hong Kong. Several Members have cited examples. I remember a Chinese doctor of great distinction working in the hospitals. He said to me, "I shall be number 1 running dog when the Red Chinese come here. I was born in China but my education was in America and I practise Western medicine". He is the type of person that we have in mind.
I reject the argument put forward by the noble Lord, Lord Bonham-Carter, that because the matter is urgent we must not discuss it. That is the most dangerous argument of all and one which as a consequence has led to bad legislation. If the Bill is passed in its present form without the amendment being put to a vote, does it mean that we are saying that no more than 50,000 will ever be considered?
Lord Bonham-Carter: I should like to correct the noble Baroness's interpretation of my remarks. I did not say that because the matter was urgent we should not discuss it. Indeed, in my preliminary remarks I urged that we should discuss it at greater length.
Baroness Phillips: At Third Reading.
Earl Ferrers: The noble Baroness was concerned about the comments of the noble Lord, Lord Bonham-Carter. The noble Lord was extremely helpful. I do not believe that he said we should not discuss the matter; he said that he believed the amendment was wrong. I believe that the noble Lord was right. That is a happy position to be in and let it remain so.
As regards the comments of the noble Baroness, Lady Phillips, I should like to invoke the aid of her noble friend Lord Mishcon who is a lawyer. However, I am hesitant to do so because perhaps his interpretation would not be as I would wish it. Perhaps the noble Baroness would be kind enough to look at the Bill. If the word "may" were inserted the provision would read:
"the Secretary of State may register as British citizens up to 50,000 persons".
Nowhere does that provision permit the Secretary of State to go above 50,000, even with the inclusion of

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the word "may". Therefore, 50,000 is the limit, whether the word "may" or "shall" is used. The noble Baroness shakes her head but I suggest that "shall" is the better word.
Lord Mishcon: I am worried. If I merely concede and say, "Well, there it is, there have been arguments for and against. Is it worthwhile the Committee expressing its view? Could it hold up the matter, which is not what I would want to happen?" I am worried that something will be conceded beyond what various Members of the Committee anticipated when they spoke against the amendment. I am even worried by the fact that the noble Earl referred to me as a lawyer. I am not alone in this Committee in being a lawyer. I invite my colleagues and laymen to look at the situation about which the noble Earl has spoken. He has said that the Secretary of State has the last word because under Clause 6 he must make a decision about character and can refuse to register if he is of the opinion that the person concerned is not of good character.
Let us look at Clause 1. I ask the Committee to be patient with me. Clause 1(1) is completely mandatory at the moment. It says:
"Subject to the provisions of this section, the Secretary of State shall register as British citizens … under a scheme or schemes made and approved in accordance with Schedule 1 to this Act".
So it is absolutely definite that he must register subject to the provisions of this section. The section involved is Claus, 1. It does not even say "subject to Clause 6"; it says subject to … this section".
One then turns to Clause 6, to which the noble Earl referred as giving the Secretary of State some discretion and indeed some powers. Clause 6(2) states:
"A person shall not under this Act be recommended for registration".
That is all right. It goes on:
"or registered as such a citizen by the Secretary of State if the Governor or, as the case may be, the Secretary of State has reason to believe that he is not of good character".
As worded, Clauses 1 and 6(2) are inconsistent. But that is not my main point in regard to the wording of Clause 1 although I think that it has been somewhat hastily worded. My main point concerns the Explanatory Memorandum. Not even the person who compiled that memorandum thought that the provision would be mandatory because—I repeat—it says that:
"Clause 1 … enables the Secretary of State to register".
We all know perfectly well that we are not talking practical sense when we imagine that some civil servant advising the Secretary of State says, "If you have the word 'may' it puts upon the Secretary of State the burden of examining each application". If one were to say that, I would argue that the Minister had given the game away by saying, "Well, the last word depends upon the Secretary of State when he looks at character". If that is so, it is his duty to ask about every person the question: "Do we know about his character?" He will say, "I see this in regard to character. The Governor has said that it is all right; the applicant was only guilty of a motoring offence.
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But I don't know. With regard to that motoring offence he did not report the matter to the police. I do not like dishonest people. I do not like giving them British nationality".
If that is a proper argument, there is a duty imposed on the Secretary of State in any event and it can hold everything up. I ask in regard to the discretion to grant British nationality—whether or not it be in an emergency—for the responsibility to lie with the Secretary of State. That will not delay the matter for one moment but it will settle a very definite constitutional issue.
I said that I was worried about dividing the Committee on this amendment. It is a serious matter, as the noble Lords, Lord Harmar-Nicholls, Lord Renton and others have said. I ask the Minister at this stage to take into account what I said about the wording of Clause 1 (1) and the contradictory wording of Clause 6. I ask him to consider whether we cannot build the bridge which was so helpfully suggested by the noble Lord, Lord Renton. If the Minister says that he will give this matter very serious consideration, I shall not divide the Committee on Amendment No. 1.
4.15 p.m.
Earl Ferrers: The noble Lord, Lord Mishcon, is always enormously persuasive and he would like me to consider this matter. I have of course considered it in great detail and for the very many reasons that I gave, I do not think that, even if we were to consider it now, we should come to the conclusion that the noble Lord's amendment is right.
If the noble Lord does not want to divide the Committee, I am quite happy to consider the matter without one single obligation at all because I am almost certain—in fact I am as certain as I can be—that I shall not be able to concede the point to the noble Lord. But I do not wish to be unchivalrous and say that I shall not consider anything that the noble Lord said. What I do not want is to be pushed into a cul-de-sac on this point with the implication that because the noble Lord does not divide the Committee I shall be obliged to consider this amendment and probably come to the same view as the noble Lord. I do not think that that is likely to happen.
It is up to the noble Lord to take the opinion of the Committee if he wishes to do so. If he takes that course, I hope that the House will agree that it is better to use the word "shall" rather than "may".
Lord Mishcon: I would never ask for chivalry from the noble Earl because he always gives it without my asking. Therefore I have not added to the benefits that I might otherwise have received by calling for chivalry. I wanted something practical. In view of the way in which the noble Earl saw fit to answer my submission—
Lord Harmar-Nicholls: Before the noble Lord says a final word about his decision, perhaps I may point out to my noble friend that he said that he had already given the matter much consideration, that the circumstances had not changed and that therefore it would be waste of time to give the noble Lord an indication that there might be an alteration. Perhaps

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I may remind him that he had not heard this debate when he came to that earlier conclusion. I hope that we have not reached a point at which the thoughts and sensibilities of individual Members of this Chamber cannot be taken into account.
I imagine that many people would see it as vitally important for the future—I hope for many centuries to come, quite apart from those years that have gone—as regards citizenship that the representative of the people, who in this case is the Secretary of State through Parliament, ought to have the final word. From the debate as I heard it there has been some doubt cast on whether that practice would continue. My noble friend could have gone so far as to give an indication, without the qualifications which I rather gather made such an indication meaningless to the noble Lord, to give the matter consideration. Indeed, I should like to think that the noble Lord would think again if he had it in mind to push the matter to a vote.
We are very well aware of my noble friend's feelings on this matter and we are aware of the strong advice that he has already had. However, his feelings and the advice that he was given had been resolved before he heard the debate today. After the debate perhaps he could have another thought.
Lord Shepherd: This Bill was introduced in another place in the name of the Secretary of State. It is the tradition in this Chamber that when a Minister has been asked to take another look at an issue before him in the light of the debate, he would agree to do so. It would be done in an honourable way so that there would be consideration not only by himself but by the Secretary of State in whose name the Bill was originally introduced in another place.
The noble Earl certainly places me in a very difficult situation. I made clear in my opening remarks that I would find it difficult to support the noble Lord, Lord Mishcon. However, unless the noble Earl is willing to be more forthcoming and undertake a review, as a matter of pure principle and in the interests of this Chamber and the Committee I shall vote with the noble Lord, Lord Mishcon, in the hope that a majority may be obtained which would require the matter to be looked at further. I hope that the Minister will now be more forthcoming.
Lord Harris of Greenwich: I shall speak only briefly. The noble Earl has been as forthcoming as he possibly could be. He indicated, first, that he would certainly consider what was said in the course of the debate; but he said subsequently that, on the basis of the situation as he appreciated it, it would be very nearly impossible for him to concede this amendment. I do not see anything inconsistent with the tradition of this Chamber in what he said.
Lord Mishcon: There is nothing inconsistent, but it is not very helpful.
Earl Ferrers: The Committee places one in difficulty. I said that of course I would consider what was said. My noble friend Lord Harmar-Nicholls confirmed that but said that I had not heard the debate. That is perfectly true. I had not heard it. But
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I have heard it now and I still feel, with the greatest respect, that my decision is the right one. Of course I shall agree to consider all that the Committee has said. I qualified that remark only by trying to explain to the Committee that, even having considered the matter, I doubt whether the Government would be able to accept the amendment.
The noble Baroness, Lady Phillips, pooh-poohs the idea, but the Committee knows perfectly well that if a Minister says, "I shall certainly consider this," it usually means that there is a considerable chance of agreeing. I think that there is a pretty slender chance of agreeing. Of course I shall consider the issue if that is what the Committee wishes. If the noble Lord, Lord Mishcon, wishes to make a point of it, it is up to him to divide the Committee. I am happy to consider what has been said but I do not want to feel an obligation to say that it is likely to be acceptable.
Lord Mishcon: I hope that the Minister will agree to consider the matter with an open mind and to give consideration to what has been said in the debate. If he will say that, I shall be perfectly content.
Earl Ferrers: I can do nothing other than to say I shall do that.
Lord Mishcon: In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 2:
Page 1, line 8, at end insert:
("( ) The Secretary of State may register as British any persons settled in Hong Kong, who are British Dependant Territories Citizens, British Overseas Citizens, British Nationals (Overseas), British Protected Persons or British subjects and who can show that they arc entitled to no other citizenship or nationality status.").
The noble Lord said: I hope that I can move this and the following amendments more briefly than Amendment No. 1.
We are considering the ethnic minority in Hong Kong. I wish the Committee to remember the stand that has been taken in this Chamber on this subject almost from the beginning when Parliament was considering the implications of 1997. Indeed, I am looking at the report of a debate in this Chamber as long ago as January 1986. In the Official Report of 20th January 1986 at col. 100 the noble Lord, Lord Glenarthur—then the very able Minister dealing with these matters (which of course is not an inference that anyone other than an able Minister is now dealing with the Bill)—said:
"There is the question of British citizenship for non-ethnic Chinese. I note the views and concerns that have been expressed this evening. Nearly everyone who has spoken has expressed their support for the view that those in Hong Kong who are not ethnic Chinese should be offered British citizenship".
That was in answer to a speech that I ventured to make on that occasion with regard to the non-ethnic minority. I intervened to say,
"Will the noble Lord the Minister forgive me? He used the words 'nearly' all. Would he kindly tell his right honourable friend the Secretary of State that every single speaker in this House made that recommendation?".
The noble Lord, Lord Glenarthur, was good enough to say that he should possibly have said "every" speaker and not "nearly" every speaker.
As long ago as 1986 noble Lords had in mind the plight of the non-ethnic in Hong Kong who were suffering under a very grave disability as a result, in the main, of having opted between British citizenship and Indian citizenship. India has been mentioned in the course of the debate on the previous amendment. It was an option because when India attained its independence it declined to admit the idea of dual nationality. Therefore one either chooses to have Indian nationality or to have a kind of British nationality and remain in Hong Kong, feeling that one is British but possibly not becoming British in the formal sense.
A great number of Indians—who have had the reputation for being hard working people and contributing a great deal to the economic success of Hong Kong—opted to remain in Hong Kong and not to take up Indian citizenship. That means this. By holding only one of the passports that I have dealt with in Amendment No. 2 they will be faced with the position in 1997 of not being recognised as Chinese under Chinese custom and Chinese law. They will hold a passport which the Committee may think is really a travel document. All it does is to enable the person concerned to travel and to show that there is a passport in that person's possession. But it carries no right of abode anywhere except Hong Kong.
Many of us have uttered prayers as to what may happen to Hong Kong after 1997. We all hope that our prayers will be answered: that there will not be any repetition of the events of which we read and saw on television in June 1989; that there will be (if I may put it bluntly) a more civilised Chinese Government than perpetrated what happened in and around that square in June 1989; and that there will be a return to what we hoped for, which was a very much more enlightened view of the Chinese Government. But while we utter the prayers, when we are thinking of other people we must also have the fears. All that we ask is that those of the ethnic minority who have been put in that position, who really will be stateless in all practical ways, shall receive the definite undertaking that, should they require it, they will be given British citizenship in 1997 or thereafter.
That was the view expressed unanimously in this Chamber in 1986. Since then there have been assurances by the Government that every sympathy will be shown. With the state of morale in Hong Kong, expressions of sympathy are not enough. There ought to be an undertaking. There ought to be some measure incorporated in the Bill to protect these people. I beg to move.
Lord Renton: We are certainly into the numbers game on this Bill; and we cannot avoid it. I very nearly interrupted the noble Lord while he was moving the amendment to ask him to give us an idea of how many people would be involved. How many would be entitled to registration if his amendment were accepted? Does he envisage that they would come within the quota of up to 50,000 people? Whether or
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not they are to come within the quota, I believe that his new subsection would have to be linked with subsection (1), because unless that point is dealt with there will be great uncertainty in the interpretation and application of his amendment.
Lord Mishcon: Perhaps I may at once answer the question that the noble Lord so courteously put to me. I understand the figure to be about 11,000 Indians and 2,000 Eurasians. That is a total of 13,000. I obviously envisage that they would be in addition to the 50,000 under the scheme.
Lord Bonham-Carter: Perhaps on this occasion I may return to my usual position of being able to support the noble Lord, Lord Mishcon, on the amendment that he has put forward. The figures that I have of the numbers involved are, oddly enough, the same as those that he has given because we happened to discuss the matter. They are approximate figures. However, they are not very significant. I wholly agree with him that they should be in addition to the quota of 50,000 families. The categories describing whom it would cover are set forth in Amendments Nos. 2 or 9.
Like other noble Lords, I suspect, I am particularly concerned with Indians and what are known in some cases as Eurasians. As the noble Lord has said, neither will have the option of Chinese citizenship; nor will they have a right of abode outside Hong Kong. Hence, given the traditional Chinese attitudes towards foreigners who I am told they tend to regard as barbari, these groups will be particularly vulnerable.
Therefore, there can be little doubt as to where our responsibilities lie. The numbers are not substantial. Both groups fall into a special category, and in my view both groups deserve special treatment.
4.30 p.m.
Lord Monson: I should like to draw the Committee's attention to a very much smaller category of deserving cases than those mentioned by the noble Lord, Lord Mishcon.
The noble Earl and his Front Bench colleagues may have seen an article in the Spectator—not the most recent edition of the Spectator, over which many noble Lords will have been eagerly poring but the previous one of 7th July 1990—in which William McGurn maintains that there is a very small number of exceptionally deserving people in Hong Kong who are excluded from the nationality Bill. More specifically, he says:
"There are a number of people who deserve full British passports because of their or their husbands' service to the Crown in the second world war, and they fall under three broad categories: widows of British Army Aid Group fighters executed by the Japanese; wives or widows of the Hong Kong Volunteer Defence Corps …; and the Hong Kong Chinese servicemen, along with their wives and widows, who were in the regular British Army. All together they add up to no more than 200 old men and women".
I wonder whether some provision could be made for those people.
Lord Geddes: With regard to the numbers and the question raised by the noble Lord, Lord Renton, perhaps I may say to the Committee and specifically to the noble Lord, Lord Mishcon, that I, too, have heard

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the figure of 13,000 raised, but my understanding is that it is relative to the rather loose figure of 225,000, and not relative to 50,000. When we talk of 13,000 on the one hand and 50,000 on the other, I am not sure that we are comparing like with like. If my understanding is correct, in percentage terms 13,000 is a very small percentage of the total even if, as I said at Second Reading of the Bill, one assumes that none of those 13,000 would fall into the quota of, say, 225,000 anyway. The numbers will almost certainly be very much lower than that.
Having dealt with the numbers problem, I must tell your Lordships' Committee that I also have a great deal of sympathy for the amendment, or at least for the object behind the amendment as I understand it. Indeed, I and many other noble Lords have spoken to this effect on past occasions, most recently at Second Reading. The dilemma in which I find myself concerns a matter raised by the noble Lord, Lord MacLehose, on the discussion of Amendment No. 1; namely, the need for speed.
If the amendment were to be passed, if I understand parliamentary procedure correctly it would require the Bill to go back to another place so that it could approve the amendment of this House. By definition, that will slow up the passage of the Bill, and we are running to the end of this Session.
I wonder if my noble friend on the Front Bench could effectively cover the same ground as is looked for in this amendment by giving a statement—hopefully even stronger than that given by my noble friend Lord Glenarthur some years ago—that the Government would look after these people in the event of them being stateless after 1997. If that is the object—and it is certainly the object to which I would look—dare I say that we should get almost the best of both worlds: we would not delay the passage of the Bill but we would cover the problem addressed by the amendment being put forward by the noble Lord, Lord Mishcon.
Lord Carver: As the matter has been raised by my noble friend Lord Monson, although I do not think it is relevant to the amendment, I should like to raise the question of those who served in the British forces in the Second World War and who are residents of Hong Kong. I hope the Government would be prepared to give an assurance that they and any of their immediate dependants would have the right to reside in this country, even though they might not be included under the provisions of this Bill, which is really looking for another category.
Lord Marsh: The noble and gallant Lord, Lord Carver, has raised a very important issue. There undoubtedly are a number of cases which could be made in relation to this situation which are deeply moving. In my submission, they are not matters which should be dealt with in the Bill. One would hope the Minister might be able to say that these matters would be looked at separately, because I think it is very important that they should be. This is a very caring Chamber, and it is not always popular to take issue
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with expressions of sympathy, but it is important that we should have no illusions about the basis and objectives of the Bill.
Whatever the final outcome of these discussions, whatever shape the Act takes at the end, there will be a large number of people in Hong Kong who will be deeply aggrieved, who will feel that they have been denied rights which they think should apply to them, who will be able to make a very strong case against which it would be difficult to argue. But the issue of this Bill is not concerned with compassion; it is not concerned with fairness. One has to face that fact. We are dealing with a formula which is designed solely to achieve a single objective, that is that the Hong Kong citizens who are essential if Hong Kong is to retain the skills and experience which have made it so uniquely successful stay in Hong Kong for the benefit of all the people in Hong Kong.
That is a brutal thing to say because one is saying that the Bill is not based on compassion; it is not based on principle. It does not pretend to be based on those things. It is based on expediency. It is an example of expediency which I should be prepared to defend to the end because it is crucial to all the citizens in Hong Kong that that group of people, however they be defined—some will be in commerce, some in the public services, some in the police force—stay behind because if they do not Hong Kong could easily become a shambles for everyone who is left behind in it.
I conclude by saying that I believe that the cases that have been raised are so moving that they do not have to be supported by a great deal of argument. They are the kind of circumstances with which most people would immediately identify and support. But once we move down that road in the Bill the central objective will have been abandoned, and if we do that it would not be any small group of Hong Kong citizens who would be at risk, but all the people in Hong Kong post-1997.
The Earl of Onslow: I have not spoken to the Bill before, but the Government must be congratulated on steering a course between Scylla and Charybdis. I go along with the noble Lord, Lord Marsh.
The first point that I wish to make concerns the Indians. If the thing goes totally wrong, surely Ministers in the Foreign Office and the Home Office can lean heavily on the Indian Government to take some of those people whose name is Patel, Singh or whatever and whose natural home is the Indian sub-continent. That should be done.
My second point is that we should not kid ourselves. If the whole thing goes totally and hideously wrong and there are 3 million people floating round the South China Sea, waving damp British passports endorsed with "Hong Kong residents only" and with the royal coat of arms, they will end up as our responsibility. As the noble Lord, Lord Marsh, said, the aim of the Bill is to try to avoid that possibility. The Bill is an example of rare quality. Thank goodness for the attitude taken by the

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Government. They must be congratulated on their courage. Those two points are my only contribution to the Bill.
Lord MacLehose of Beoch: I find myself in some difficulty. I agree with almost everyone who has spoken. But it does not add up. I sympathise with the spirit of the amendment moved by the noble Lord, Lord Mishcon. The undertaking given in 1986, which he quoted, was a helpful move at that time. It was well received, but times have changed. If they had not changed, we would not be considering the Bill.
In the new circumstances, the minorities—a horrible phrase; we mean people of mixed descent, Indians and various other categories—feel exposed in spite of the Joint Declaration and in spite of the provisions of the Basic Law. They fear that old prejudices might resurface and that life might be intolerable for them. They do not want to wait until those pressures emerge, as they would have to do under the 1986 assurance. They want something now.
Like the noble Lord, Lord Mishcon, I could not support an amendment which subtracted from the numbers for which the Bill provides. Nor, on the other hand, could I support an amendment similar to that which the noble Lord, Lord Bonham-Carter, will move to increase the numbers. As the noble Lord, Lord Geddes, said, I would not wish to have the Bill sent hick to another place where it would invite debate that might damage and delay it. That would have to be done on the basis of numbers and situations which were unquantified and undefined. The noble Lord, Lord Mishcon, quoted a figure of 13,000. I understand that he also quoted a figure of 2,000 Eurasians. I believe that the figure is much less. I have a letter from the president of the Welfare Association for the Eurasians giving a figure of 1,000. I am not sure what the Indian numbers are. I do not think that they have ever been investigated.
We must look more carefully at entitlement to other nationalities. I do not know what the situation of, for instance, Eurasian people would be under the Chinese nationality law if application were made. We just do not know. I am quite sure that it is not what they want in most cases, but it is a factor. There is the question of the Indian Government. What would their situation be if Indians in Hong Kong reapplied for Indian nationality?
In all that, there is a strong case for the Government initiating careful study so that, by the time the first report on the operation of the Bill is made or the second tranche of registrations comes to be recommended, the Government will be ready with proposals which would be quantified and carefully researched and could form the basis for providing British nationality for those people who need it and who are so very much in our minds.
4.45 p.m.
Lord Renton: The noble Lord, Lord MacLehose, and other noble Lords have said that, because the Bill is urgently needed, we should not amend it. It makes one wonder why it is referred to a revising Chamber such a.5 your Lordships' Committee if that is to be the
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situation. The Bill should be capable of amendment, but I go along with the noble Lord, Lord MacLehose, by saying that, if we are to invite another place to go into the numbers game, that might cause delay. It might cause half a day's delay.
The difficulty that I find about the amendment is that the noble Lord, Lord Mishcon, does not envisage that the people whom he has mentioned would be within the quota of 50,000. When legislating for a potential increase of 50,000 in the population of the United Kingdom, surely we owe it to the people already here—whatever their ethnic origin or, like most noble Lords, native British—not to have a larger increase than can be avoided. It would be a difficult and embarrassing exercise if there were an amendment which added to the 50,000. I regret that I cannot support the noble Lord's amendment.
Lord Monkswell: Some of the expressions used by the noble Lord, Lord Marsh, are a little unfortunate. I believe that he used the word expedient which we probably all associate with the Bill. I am not sure whether the term pragmatic is right. The suggestion was that those concepts were more important than principle and fairness and that we should therefore discount the concepts of principle and fairness. Although we are asked to consider an objectionable Bill, which is both unprincipled and unfair, we are still honour bound to ensure that it is as fair and principled as we can make it within the context. I hope that we shall not be put off making amendments which will ensure that the scheme is as principled and fair as we can make it, rather than just taking it as it is and saying that, however unprincipled or unfair it is, it is okay.
Lord Marsh: I am grateful to the noble Lord for giving way. This is a crucial point. I support the Bill in its broad proposals, but it is not based on fairness or principle. It is based on a set of fairly arbitrary qualifications which will entitle people to passports, paradoxically to stop them leaving the place. That is not an issue of principle. Some people there will be frightened at the prospect of not being able to leave. I understand that, but I believe that if one seeks to impute ideas such as fairness to the Bill one destroys its very objective. That is not to say that one does not have great sympathy with some of the groups who will be at risk and who are unhappy. But the Bill is based on expediency to keep in Hong Kong people who will make it work. There is no principle of fairness in that.
Lord Monkswell: I appreciate the point made by the noble Lord, Lord Marsh. I agree with him in the sense that the Bill is unprincipled and unfair. I disagree with his view and the Government's view that it will work. I cannot conceive of a situation in which you encourage people to stay in one place by giving them the ability to move to another place to which they want to move anyway. That is not logical.
However, if one puts that to one side, the Government have gone down an illogical path. In that case, it surely behoves us to say that we must look at the details of the mechanism which will be used to go down that illogical path and try to make sure that they are as fair and principled as possible.

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Apart from the inherent importance of that for our own consciences, there is also a practical element. If the people of Hong Kong gain the impression that the British Government's attitude to Hong Kong is a totally expedient one of damage limitation and that they are saying, "We want to get out with the least trouble and we will be totally unprincipled about it and do what is necessary to achieve that", then I suspect that the reaction of the people of Hong Kong to the British Government will be rather cynical. If we treat them cynically, they will react cynically. I do not believe that that is a very satisfactory relationship between governed and governors. That is why I raise this point.
The Minister of State, Foreign and Commonwealth Office (Lord Brabazon of Tara): As the noble Lord, Lord Mishcon, said when moving this amendment, this issue has been aired on many occasions both in this Chamber and elsewhere over the past few years. The position of the non-ethnic Chinese minorities in Hong Kong was carefully considered before we announced our proposals in December. My right honourable friend the Foreign Secretary met representatives of the Council of Hong Kong Indian Associations last November to hear their case, and Indian community leaders have made representations to the Government on several occasions since then.
A number of figures have been bandied about the Committee this afternoon and perhaps I should clarify the matter. The Hong Kong Government's best estimate of the number of non-ethnic Chinese British dependent territory citizens who have no other citizenship or nationality is 11,500. As my noble friend Lord Geddes said, that figure should be compared with a figure of 225,000 rather than 50,000.
It will of course be open to members of the minority communities to apply under the selection scheme if they meet the eligibility criteria. But the Government remain of the view that no special provision for them is warranted. Their position is safeguarded by the terms of the Joint Declaration, which provide specifically for non-Chinese residents of Hong Kong to retain the right of abode in the territory after 1997. Like all Hong Kong residents they will benefit also from other provisions of the Joint Declaration, including the guarantee of continued freedom of movement and the continued protection of the existing laws in Hong Kong. In the Government's view there is no reason to believe that these people will be particularly at risk.
The Government recognise, however, that it is natural for the non-Chinese community in Hong Kong to be anxious about their position after 1997, in particular because they may not qualify for Chinese citizenship. For that reason the Government have already made provision for them. Those who have British dependent territory citizenship on 30th June 1997, and their descendants, will benefit from the Hong Kong (British Nationality) Order 1986. Under that order, British overseas citizenship will be available to those who would otherwise be stateless.
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Furthermore, their children and grandchildren born after 1997 will also qualify for British overseas citizenship if they could otherwise be stateless.
The non-Chinese ethnic minorities—and here I am referring more to the Eurasian community which the noble Lord, Lord Mishcon, mentioned—cannot expect to be regarded automatically as Chinese citizens after 1997. However, Chinese nationality law allows foreign nationals to acquire Chinese nationality on approval of an application. Therefore, we have looked carefully at the position of the Eurasian community in Hong Kong and have considered sympathetically the representations made on their behalf. We recognise the valuable contribution which those citizens have made over the years.
As with the Indian community, members of the Eurasian community will be able to apply for British citizenship under the Bill where eligible. The position of those who do not qualify for British citizenship under the Bill will naturally depend upon their individual circumstances. It may well be that many Eurasians will qualify for Chinese nationality after 1997. That will clearly be a matter for China and its nationality laws. However, we recognise that the Eurasians may be uncertain about their position after 1997 and that that uncertainty causes them anxiety. We shall discuss that with the Chinese authorities to see whether they can clarify the position and whether there is anything that we or they can do to reassure the Eurasian community that their future is secure.
The noble Lord, Lord Monson, the noble and gallant Lord, Lord Carver, and the noble Lord, Lord Marsh, all referred to the widows of former British servicemen and an article which appeared a couple of weeks ago in the Spectator. My right honourable friend the Home Secretary dealt with that matter on Second Reading in another place and my honourable friend Mr. Peter Lloyd wrote to the Spectator on 11th July. I have a copy of his letter. The Spectator did not print it last Friday. Perhaps it had other things on its mind.
However, I shall quote a couple of paragraphs from the letter:
"During the Second Reading of the British Nationality (Hong Kong) Bill, the Home Secretary gave a clear assurance that the widows of former servicemen who served in the defence of Hong Kong during the Second World War would be allowed to come here at any time, either before or after 1997, irrespective of the husband's nationality.
This follows an assurance which the then Home Secretary gave in 1986 that any ex-servicemen who had fought in defence of Hong Kong and was still resident there would be allowed to settle in this country at any time together with their dependants. In addition, to those of them who were British Dependent Territories Citizens he undertook to exercise his discretion and register them as British Citizens if they so applied".
I hope that that clarifies the situation.
The non-Chinese community also have a specific parliamentary assurance given on a number of occasions that if, contrary to our expectations, any solely British national came under severe pressure to leave Hong Kong in the future and had nowhere else to go we should expect the government of the day to consider their case for admission here with particular

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sympathy. In debate on the previous amendment the noble Lord, Lord Mishcon, was encouraging about assurances given by Secretaries of State in the context of the numbers involved. I hope that he and my noble friend Lord Geddes and the noble Lord, Lord MacLehose, will be similarly assured by my repetition today of that assurance. I am very pleased to do that. I am glad to note that the noble Baroness, Lady Ewart-Biggs, confirmed on Second Reading that Her Majesty's Opposition would also offer that assurance.
With those assurances and for the reasons I have given I hope that the noble Lord, Lord Mishcon, and the noble Lord, Lord Bonham-Carter—because we are speaking also to Amendment No. 9—will be satisfied that the position of those people is adequately safeguarded.
Lord Mishcon: We should reflect for a moment on the speech made by the noble Lord, Lord Marsh. He spoke in his usual forceful way with great knowledge of Hong Kong. I should not like it to be thought that this Chamber is content with the view that we are merely considering a measure out of expediency and expediency alone, conscious of the fact that we are not acting in any way on principle or fairness. Quoted in Hong Kong as a headline, that might make mincemeat of the Spectator article to which, by inference, some Members of this Committee have referred. That is a sentence that, left on its own without qualification, is something which even the noble Lord, Lord Marsh, would not want.
I hope the Committee will agree, as a matter of principle, that we are trying to ensure that the morale of the people of Hong Kong is kept to as high a level as possible. That is not just expediency; we on these Benches say it is not simply looking after those who happen to contribute materially to Hong Kong, worthy though those people may be. The morale of Hong Kong affects little people as well as big people, whether or not people belong to the ethnic minority.
Perhaps I may say that I never know whether to say "ethnic minority" or "non-ethnic minority". I was using the term "ethnic minority" and the Minister answered with the phrase "non-ethnic minority". However, the Committee and I know exactly who we are talking about, so perhaps it does not matter very much.
It was in the spirit of keeping morale high in Hong Kong among all who deserve it that I moved the amendment relating to the ethnic minority. Whatever one thinks of the British overseas passport, and worthy though it may be as a possession, it gives one no statehood. Statehood means, "I am entitled to be there". The one thing that the British overseas passport does not allow is for somebody to come here and stay. It does not give the right of abode.
The Minister has repeated an undertaking. I hope that that undertaking means something, whichever government have to carry out these matters in 1997 and thereafter. It may be wrong for me to expect the provision to be incorporated in the Bill, as I wanted by
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the amendment. I hope that the assurance means what it says. I hope that it will give comfort in Hong Kong and that the headline I anticipated will not occur.
5 P.m.
Lord Marsh: Before the noble Lord sits down, and so that there will be no misunderstanding, perhaps I may say that I disagree with no part of his interpretation of how he sees the Bill. Of course it is designed to maintain morale in Hong Kong. However, it would be equally dangerous and cynical to give the impression that this Bill, which will provide much coveted passports to people who, on the whole, will be young highly successful men in good jobs, is based on anything other than trying to maintain morale in Hong Kong. If the noble Lord regards that as a principle, I can agree with him, and would not argue with him about the semantics.
Lord Mishcon: Without dividing the Committee in regard to its opinion I tried to make clear the position of the Opposition in this matter. We believe that fairness and principle should take a part. I do not want that statement, that we were content with something which had neither fairness nor principles as its objective, to be seen as the view of the whole of the Committee.
When the noble Lord, Lord Marsh, perfectly properly intervened I was intimating the hope that that assurance is one that will bring comfort to the ethnic minority people in Hong Kong. It is the word of a British Government which still stands in the world as being a word that means something. On that basis I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 3:
Page 1, line 17, leave out ("minor") and insert ("dependent").
The noble Baroness said: The purpose of this amendment is to change the description of the children of British citizens who are to acquire citizenship under the scheme from "minor" to "dependent".
We feel that applying an age limit to the children of a person registered under the scheme is inappropriate and unnecessary in the context of Hong Kong. More often than not the children's welfare is one of the main concerns of parents who decide to emigrate. They decide that the future of their children is too insecure and it is for their sake that they decide to take the very large step of leaving Hong Kong.
It is also true that the parents' concern does not diminish after the children have gone to college or begun work. There is a different family spirit in Chinese families whereby it is also the wish of children to stay with their parents so that in many cases they may be able to look after them. That may differ from our culture where in many cases children cannot wait to leave the family nest. In Hong Kong children often stay much longer at home and are expected so to do.
The Catholic Institute of International Relations suggested that to qualify for inclusion under the scheme children should be required to be unmarried. They made the very good and strong point that that

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practice is adopted by the governments of Canada and the United States, which receive many applications from families from Hong Kong.
There is no doubt that the change we propose would be more acceptable and appropriate, and indeed welcome to the people of Hong Kong. In this way it would contribute to the Government's aim of giving greater confidence to the key people of Hong Kong in order to persuade them to remain.
The purpose of the amendment is to strengthen the resolve, not to go against the objective of the Bill; it is to make it more acceptable to the very people that the Government wish to retain in Hong Kong. I hope that this very simple but practical, and we believe appropriate, amendment will find favour with the Minister.
Lord Derwent: I Want to support the amendment, particularly because points are being given to people in the late 30 early 40 age groups, many of whom have children undergoing college education in Hong Kong and may not technically be minors. If the parents leave we will lose not only the parents, but also some of the more promising young people, and they are the people likely to step into their parents' shoes in the business community.
I believe we will still be within the overall limit of 250,000 mentioned in the House of Commons because families in Hong Kong are smaller than they are here. I should therefore like to support the amendment.
Earl Ferrers: It is principle that the registration of a child as a British citizen should be conditional on an application being made before he or she reaches the age of majority—the age of 18. There are a number of precedents for this in existing nationality law. For example, under Section 3(5) of the British Nationality Act 1981, where a British citizen by descent has a child abroad and the family subsequently move to the UK, that child becomes eligible for registration after the family have been here for three years; but the application must be made while the child is still a minor.
There is no precedent in the 1981 Act for making eligibility for British citizenship conditional on a child's being dependent; and it would, in our view, be inappropriate to create one in the context of the Bill. Furthermore, dependency would be a much more complex test to apply than age. The need for a simple test of eligibility is especially important in this context, where speed of implementation will be critical to the scheme's effectiveness. A dependency test could also encourage—though this may be seen to be scheming—some people to distort their lives; by not marrying, not taking a job, or remaining in education in order to try and further their claim for dependence. I do not think that that would be right.
There are a number of points in the Bill where a balance has to be found between the need to make assurances to beneficiaries and their families as effective as possible and the need to keep the extent of the potential commitment within reasonable limits.
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We believe that the age of 18 is a sensible point at which to end the entitlement of children to registration under the Bill.
I remind the Committee that should parents settle in the United Kingdom it is possible for their genuinely dependent children who, although over age, nevertheless for reasons such as ill health have to rely on their parents for support, to be considered for settlement outside the rules on compassionate grounds. That possibility already exists and I hope that the noble Baroness will therefore think it right for it to remain.
Baroness Ewart-Biggs: I can understand that the Minister believes the word "dependent" to be more difficult to evaluate than a simple age limit. However, I found difficulty in accepting another of his reasons; that it would encourage young people to stay at home, not get married, and so on. That is highly unlikely.
The noble Earl has not accepted the point that the age of 18 may be right within our family lives here but it is inappropriate for families who stay together much longer, as they obviously do in Hong Kong. I maintain and keep to my point that the age limit might well mean that some families will go to Canada or the United States where the requirement is that children should be unmarried. As the major point of this Bill is to retain people in Hong Kong, I feel that retaining the word "minor" rather than changing it to "dependent" might well lose some of the people whom we particularly wish to keep in Hong Kong. Therefore, it is a pity that the Minister has not looked at this more favourably and at least said that he will endeavour to find a way of evaluating the word "dependent", as I feel that it would be a useful adjustment to the Bill. However, I withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
5.15 p.m.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 5:
Page 1, line 21, leave out subsection (5).
The noble Lord said: This amendment raises an issue of principle to which I devoted my speech on Second Reading. Clause 1(5) is in two parts. The first part provides that:
"Neither the Secretary of State nor the Governor shall be required to give any reason for any decision made by him in the exercise of a discretion vested in him by or under this Act".
That is a superfluous provision because it merely re-emphasises what is already English administrative law—that there is no general obligation on administrative authorities to give reasons for their decisions. If the provision were not in the Bill there would be no obligation on the Secretary of State or the Governor to give reasons.
Therefore, I emphasise that this amendment to take out Clause 1(5) would not require reasons to be given. If Clause 1(5) goes the Secretary of State and the Governor would remain absolutely free not to give reasons, desirable though in practice it may be for them to do so. The Governor may choose to give reasons to uphold public confidence in the administration of the system, but if Clause 1(5) goes there will be

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no obligation whatever on the Governor to give reasons because, under the general law, he is under no obligation to give reasons. There is, therefore, no doubt at all but that the first part of this provision is superfluous and there is no need to retain it.
The second part of the subsection, the "ouster" clause, is equally superfluous if—and I emphasise "if"—the Minister's advice to this Chamber on Second Reading was correct. The "ouster" clause is that,
"no such decision"—
that is, no decision made by the Secretary of State or the Governor in the exercise of discretion given to them under this Bill—
"shall be subject to appeal or … be questioned in any court".
The noble Earl, Lord Ferrers, claimed that that prevents review only of the discretionary decision itself, but not the method by which the decision is arrived at. If that were right the provision would be wholly superfluous. That is because it is a first principle of English administrative law that the courts will never substitute their discretion for the discretion of the administrative body, and they never ever do. They review essentially only if the administrative body has gone wrong in law in the manner in which the decision was reached. Examples are: by breaching natural justice; by taking into account irrelevant considerations; and by failing to apply the procedures to which the applicant was entitled.
I do not understand why this "ouster" clause is in the Bill if its sole purpose is to prevent the courts doing what they never would do in any event. My concern, therefore, is that there is a real risk that the courts in Hong Kong will decide that the "ouster" clause cannot simply have been intended to prevent them doing what every law student knows they cannot in any event do—that is, substitute their discretion for that or the Governor—and so must have been intended to preclude any review of the discretionary decision when the attack is confined to questioning the lawfulness of the manner in which the discretionary decision was reached.
The courts could well reason, "Parliament cannot have legislated in vain. It cannot be telling us not to do what we never would do in any event. Therefore, the clause is intended to oust judicial review". The point is that a court is questioning the discretionary decision itself when questioning the manner by which the decision is reached. Invariably in court, when it is only the ma finer of arriving at the decision which is being challenged, the court is being asked on these very grounds to quash the decision itself and order the decision-making body to reconsider in accordance with law.
My concern, therefore, is that this "ouster" clause may will be interpreted as excluding judicial review altogether. The argument is simple. We gain nothing from keeping Clause 1(5) and we run the risk that it will interpreted as ousting judicial review altogether. The Minister said that that is what he does not want to achieve. Why, therefore, run the risk when, on the Government's view of the effect of this
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clause, there can be no doubt at all that it is superfluous and could be taken out without loss to anyone?
I repeat the examples I gave on Second Reading. Under Clause 3 the Governor may make regulations governing,
"the manner in which applications are to be made to him".
The regulations will almost certainly make different provisions for different cases. There should be no doubt that anyone denied his rights under the regulations should be entitled to go to the courts to have them upheld.
Another example is that the selection scheme to be set out by Order in Council, referred to in Schedule I, may specify different criteria or selection methods for different classes of person. Suppose the Governor, in error, departs from these in a specific case and applies the wrong criteria or the wrong selection methods. In both cases I daresay the noble Earl will say, as he said previously, that his advice is that Clause 1(5) does not oust judicial review. My concern is that his advice is wrong. Moreover, as the noble Earl well knows, his categoric assurances to this Chamber to the contrary cannot even be referred to in the courts when the true interpretation of Clause 1(5) is being decided exclusively.
We should do one of two things. We should take this subsection out altogether, because on the Government's view of its meaning it is plainly and obviously superfluous. If it came out there would be judicial review in the ordinary way, which the Government say that they want to retain. The courts would never question the discretionary aspect of the decision of the Secretary of State or of the Governor. If the subsection stays in, there is a real risk that it will be construed as excluding judicial review altogether and the Government's assurances to the contrary given in this House will come to be seen as a snare and a delusion.
What I now have to say also concerns Amendments Nos. 7 and 8. The arguments are so integrated that I ask leave of the Committee to say something about these two amendments. Alternatively, we should insert a new clause called for by these amendments along the lines of Amendment No. 8:
"Nothing in this Act affects the jurisdiction of any Court to entertain proceedings for judicial review in respect of the operation of any provisions of this Act".
At Second Reading the noble Earl the Minister said that by seeking to clarify the position in that way we might raise doubts about the powers of the courts in relation to other legislation which does not contain such provision. That is not so. There is no doubt about the availability of judicial review generally, provided that we abstain from these ouster clauses. The only doubts that are created are raised by Clause 1(5) itself. The additional clause proposed by Amendment No. 8 is required only to remove the doubt created by Clause 1(5) in the first place.
It is necessary to take out Clause 1(5) and then the problem would go away. There would be no need for the new clause contained in Amendment No. 8. I hope

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that the Minister will respond positively to this argument. It is professionally and not politically based. It is designed only to ensure that the Government's stated intention does not miss its mark by a subsection which, if he wishes to reflect with care on this provision, the noble Earl may come to think is misconceived. It risks taking away the one provision that will underpin confidence in Hong Kong in the administration of a system which will inevitably attract charges of favouritism; that one provision being judicial review.
Lord Harris of Greenwich: I suggest that we discuss Amendments Nos. 7 and 8. I do not know whether that is convenient to the noble Lord, Lord Mishcon. This point has been made by his noble friend. The argument appears to be exactly the same. One of these amendments is ours.
Lord Mishcon: I am quite happy with that.
Lord Renton: It will be very sensible to discuss Amendments Nos. 7 and 8 with Amendment No. 5.
Lord Harris of Greenwich: That was the suggestion I was endeavouring to make. It will avoid the tedium of Members of the Committee having the opportunity of listening to us twice on the same issue. I too spoke on this matter at Second Reading, as did the noble Lord, Lord Irvine of Lairg. I very much agree with what he said. To be blunt, I was rather puzzled by the speech made by the noble Earl, Lord Ferrers. It is as clear as can be that the effect of passing this clause, as it is now drafted, would be to exclude judicial review entirely. Therefore, I find it difficult to comprehend why the noble Earl took a different view.
I remind the Committee of the issues that we are debating and the powers that we are conferring on the Governor. Clause 3(1) says:
"The Governor of Hong Kong may by regulations make provision—
(a) with respect to the manner in which applications are to be made to him under any scheme …".
Subsection (2) of that clause states the point alluded to by the noble Lord, Lord Irvine of Lairg. It says that the Governor of Hong Kong may make regulations that,
"make different provision for different cases".
Finally, there is Clause 6, which was referred to by a number of Members of the Committee including the noble Lord, Lord Mishcon, when we were discussing the first amendment to the Bill. That gives the Governor and, in certain circumstances, the Secretary of State, power to exclude a person on the ground that he is not of good character. That power is substantial. We have to recognise that, given the strength of feeling that there is in Hong Kong and the concern of many people about their future after 1997, all kinds of charges may be levelled at the Governor about the circumstances in which decisions have been arrived at.
So far as this amendment is concerned in clarifying the position, no one is suggesting for a moment that we are talking about some kind of appeals system against the Governor. As both the noble Lord, Lord Irvine of Lairg, and I pointed out during Second
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Reading, the grounds for judicial review are extremely narrow. You have to demonstrate that there has been, for instance, some breach of natural justice or that a decision is perverse or irrational and so on.
Let us take one illustration of the kind of problem that may arise and where, if this clause is passed unamended, the person concerned would have no redress whatever. I refer to Clause 6(2) which is the not-of-good-character clause. I can understand the grounds for this and I support them. Let us assume that a man believes that he is being excluded on those grounds because of a belief that he has a criminal record, but it is a false criminal record. The noble Earl will be aware that such a situation is not inconceivable. There are many errors made concerning criminal records held in this country. There may be a situation where a person was excluded because the Governor believed, according to the information available to him, that the person had a criminal record.
In a circumstance of that kind are we really saying that the man should not have the right to judicial review against such a belief, particularly if it is founded in fact? There are many such examples. For example, a member of his family who is a minor may have a serious criminal conviction. At the moment the person referred to in Clause 6 is clearly the head of the household. He may feel that he had been excluded on the ground of the criminal conviction of a minor in his family.
I have given two examples, and there can be many others. They could cause very serious public disquiet if it were established that mistaken decisions honestly made were being decided on by the Governor of Hong Kong and that there was no official redress whatever. It is quite wrong that we should entertain such a proposition. As I indicated at Second Reading—and I do not intend to make an unduly controversial point before I sit down—such a provision would be impossible were this country to have a written constitution. It is the view of many of us that one of the many arguments in favour of a written constitution is that the Executive would be unable to exclude the judiciary in the way that this Bill does at the moment. However, I do not propose to develop that argument. I very much hope that we shall receive a much more encouraging reply from the noble Earl than we did when he wound up the Second Reading debate.
Lord Renton: The noble Lord, Lord Irvine of Lairg, was perfectly right in saying—my noble friends on the Front Bench will not dispute it—that the grant of nationality and of a passport are not only matters that have always been at the discretion of the Secretary of State but, because the decisions are founded on the exercise of prerogative, no reasons for them have ever been given. The noble Lord. Lord Irvine, was perfectly right in saying that for that reason the courts have never entertained appeals against such decisions.
The noble Lords, Lord Irvine and Lord Harris of Greenwich, wondered why we have the first part of subsection (5). I shall deal with the second part in a moment. I shall be glad to hear from my noble friends

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on the Front Bench why we have it but I imagine that there are various reasons why subsection (5) has been inserted. Perhaps it is because it is an unusual Bill anyway. Perhaps it is because for the first time the question of registration for purposes of British nationality has been delegated to someone other than the Secretary of State—namely, the Governor. Perhaps one can say that the subsection has been inserted for the removal of doubt. I hope that I am not being unfair to those who drafted the Bill or to my noble friends on the Front Bench when I say that the use of the word "shall" in subsection (1), an issue which we debated at length on Amendment No. 1, gives rise to a doubt. If subsection (5) helps to dispel that doubt I welcome it.
I come to the second part of subsection (5). It is suggested that the words,
"and no such decision shall be subject to appeal or liable to be questioned in any court",
would exclude judicial review even as to the method used to reach decisions and even as to questions of whether the statutory procedures had been followed. One must respect any doubt about the meaning of a provision in a statute, especially when it is produced by such an efficient lawyer as the noble Lord, Lord Irvine of Lairg. But express words in a statute are needed to overrule the common law or the established law in any way. I would interpret this, as I think the courts probably would, as meaning that if judicial review was to be excluded for the purpose of considering the methods by which decisions were reached, the statute should and would have said so; and as the statute does not expressly say it, judicial review is not excluded as to method. But, as is conceded, it is rightly excluded from the point of view of the decisions themselves. We discussed absurdities earlier in our discussion this afternoon but it would be absurd if the courts were allowed to entertain an appeal against any decision by the Governor refusing the recommendation of registration or any decision by the Home Secretary.
I must confess that I am not so unhappy about subsection (5). If it helps to remove any doubts that there might be, and even though it would have been thought and might reasonably have been thought to have been unnecessary in any other nationality Bill—I had responsibility in years gone by for piloting several of them through Parliament—I would still say that in the unusual circumstances of this Bill it might be just as well to have subsection (5) there. I am not as worried as the noble Lord about the point concerning judicial review.
5.30 p.m.
Lord Mishcon: Before the noble Lord sits down, I wonder whether he would agree that it is a logical sequence of what he is saying that if one does not wish to exclude judicial review that should be said in the Bill. That would make it doubly clear.
Lord Renton: I cannot deny that that is so, but that leads me to Amendments Nos. 7 and 8. They are most categoric in their terms and I must invite attention to them. Amendment No. 7 states:
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"Nothing in this Section affects the jurisdiction of any Court to entertain proceedings of any description concerning the rights of any person under any provision of this Act".
That would go too far in the other direction, as would the next amendment which is not very different from it. That would mean that one could have judicial review even as to the exercise of the Secretary of State's discretion on matters of nationality or the granting of a passport. Therefore I would he very surprised if my noble friends on the Front Bench gave any encouragement to Amendments Nos. 7 and 8. I would find them very difficult.
Lord Clinton-Davis: The noble Lord seemed initially to indicate that, if there were any doubt in relation to the ouster of judicial review, the matter might be tackled; but he then went on to assert that the machinery listed in Amendments Nos. 7 and 8 might be inappropriate. Does he agree that if there is any doubt about it—apparently the Government assert that there is no intention of that kind—it would be as well if the Minister were to agree to the principle being inserted by way of amendment at a later stage?
Lord Renton: I shall not take my noble friend's name in vain. I should have thought that with subsection (5) there, and knowing that express words would be needed to exclude judicial review from consideration of the methods used, there would be no uncertainty to be removed.
Lord Monkswell: I enter the debate from the point of view of the layman. We have heard distinguished legal argument on the subject, and from what has been said I would come down on the side of not having subsection (5) in the Bill. We are asked to believe that the purpose of the Bill is to provide confidence to people in Hong Kong, most of whom, I suspect, are laymen. They are not highly skilled and professional figures in the judicial environment. The clause says to me as a layman that, however the Governor or the Secretary of State acts, however illegally, harshly or irrationally, the courts cannot review the position. I spoke earlier about the principle of fairness. The whole panoply of our judicial system is there to ensure fairness. If through this Bill we say to the people of Hong Kong that they will have no access to the courts, their reaction will be that the provisions are unfair.
For that reason I feel that the amendment so ably moved by the noble Lord, Lord Irvine, is the right one for us to take on board and is preferable to Amendments Nos. 7 and 8 which insert another clause. In effect, one clause would say that the judicial system cannot become involved; and then a little later another provision would say that it can, but in a particular manner. I suspect that a layman reading such wording would say, "They are not giving us the full opportunities available under the legal system; they are trying to keep some of it from us". For that reason I hope that the Government will take on board the sense of removing subsection (5) which does not appear, despite all that has been said, to confer any particular benefit.
5.45 p.m.
Earl Ferrers: The point mentioned by the noble Lord, Lord Irvine of Lairg, was an important one about which I can understand noble Lords being most concerned. The matter was discussed extensively in another place. My honourable friend the Parliamentary Under-Secretary of State went to some lengths to explain the background of Clause 1 (5) and the scope of the exemption which it provides from judicial review, although it will ultimately be for the courts, rather than the Home Secretary, to decide what is reviewable having regard to the provisions of the legislation. Clause 1(5) makes absolutely clear the intention that the exemption from having to give reasons, and from judicial review, will apply only to discretionary decisions.
I think that the noble Lord, Lord Irvine of Lairg, stated that I had said that Clause 1(5) does not oust judicial review. That is correct; it does not oust it. The areas in which the Governor and Home Secretary are to be given discretion are those which involve the exercise of judgment, often about matters which may be finely balanced or on which there may be no clear right or wrong answer.
I should point out to the noble Lord that if Clause 1(5) were omitted, the courts could review every aspect of the decision, including the discretionary parts. In particular, they could review discretionary decisions on the grounds that they are unreasonable. That would encourage disappointed applicants to challenge discretionary decisions and thereby delay the implementation of the entire scheme. Perhaps I may give two examples of situations where the discretion could be considered.
The Governor will have discretion to award 150 "special circumstances" points. One of the purposes of this is to enable him to give extra points to applicants from specific occupations which are suffering especially severe depletion due to emigration. A large number of detailed decisions will need to be taken about the points-weighting to be given to particular occupations or for particular qualities. I should make it clear that the Governor intends to publish all of those decisions.
I could well imagine that, if the exemption from judicial review were dropped from the Bill, applicants from an occupation or profession which had not been awarded extra points under this category, or had been awarded fewer extra points than another occupation, would seek to take the Governor to court. The potential scope for litigation is enormous, and until such cases had been resolved the Governor might well conclude that he had no alternative but to await their outcome before proceeding. One of the factors in such a situation would be that this would cause enormous delay.
I turn now to my second example. Although in the great majority of cases places will be allocated on the basis of points, it may happen occasionally that two or more applicants score the same points but that there are not enough places for them. For such an eventuality to which the noble Lord, Lord Mishcon,
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referred on Second Reading, Schedule 1 includes a provision empowering the Governor at his discretion to choose between "equally qualified" applicants. Since the applicants will be, by definition, equally qualified in terms of the criteria of the scheme, the Governor's selection must inevitably involve making a subjective judgment. It is very difficult to see what justifiable issues there could be in such a judgment.
If I may say so, this illustrates that where Parliament has placed a discretionary decision upon the shoulders of the Governor of Hong Kong or the Secretary of State, I do not believe that anything can usefully be achieved by inviting the courts to look at it again. The implications of permitting judicial review in these circumstances might well be that the entire scheme ground to a halt while applications were dealt with by the courts. That kind of delay to the swift implementation of the scheme could be fatal to its effectiveness. The whole premise of this Bill is the need to issue most of the 50,000 assurances as speedily as possible.
It is reasonable to ask for judicial review where a right, to which a person may be entitled, has been refused. However, the Bill gives no rights of citizenship. It permits the award of citizenship to be given in certain circumstances. It is not reasonable for the courts to pass judgment on the results of the selection, but it is reasonable for them to pass judgment on whether the methods by which the selection was made were carried out in accordance with the law.
It is also important to bear in mind that the exemption afforded by Clause 1(5) will apply only to the extent that the Governor and the Home Secretary act within the proper limits of the discretion which the Bill has given them. It follows that any failure by them to apply the law correctly, or to abide by the prescribed procedures and criteria, would fall outside the scope of the exemption and would, therefore, be reviewable even where the decision on the merits is a purely discretionary one. It would of course be for the courts themselves to decide in each case whether a particular action or decision that was being challenged fell within the scope of the exemption.
There is nothing new in the exemption which Clause 1(5) would provide in respect of discretionary decisions. The exemption is deliberately modelled on, and is similar in intention and effect to, one which has formed part of our nationality law for the past 40 years, under Section 26 of the British Nationality Act 1948 and more recently under Section 44(2) of the 1981 Act.
The noble Lord, Lord Harris, was concerned to know whether, if a person was refused the right of abode because he was not of good character, his case would be subject to judicial review. That is not the kind of case (a case where a person has had a criminal record) where a person might have his application refused. However, if that were to happen two courses of action would result. First, the Governor or the Secretary of State would carefully check the facts to see whether or not the person was of good character. Secondly, they might well invite representations on

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borderline cases from the applicants. In nationality law it has always been a principle that assessments of good character in nationality cases should not be challenged by way of judicial review.
As regards the example given by the noble Lord, Lord Harris, if a decision on character was based on false information then in such a situation what would be reviewed would not be the discretionary decision based on agreed facts; it would be the misapplication of the facts in the applicant's case. That is the aspect which would be reviewable.
The amendments proposed by the noble Lord, Lord Irvine of Lairg, would therefore depart from a principle which has been a very long-standing feature of our nationality law under successive governments. The need for the exemption is, if anything, more pressing in this Bill for the reasons which I have given and bemuse of the competitive nature of the scheme. With a ceiling of 50,000 places we can expect a high proportion of unsuccessful applications. Where a person felt that a discretionary decision had deprived him of selection, that decision could often only be reviewed if the courts also looked at the relative claims of all the others against whom the applicant had been competing. I do not believe that that would be either practicable or desirable.
It was suggested by the noble Lord, Lord Irvine of Lairg, that, contrary to the Government's assurance, Clause. 1(5) would prevent review of a failure to accord statutory rights en route to a discretionary decision. I have looked carefully at that point, and I am satisfied—I hope that the noble Lord will be—that the Government's assurance on that point holds good. The case of Syed in 1984 involved judicial review of a discretionary decision about whether to naturalise an applicant under the British Nationality Act, and, notwithstanding the comparable provision of Section 44(2) excluding judicial review of discretionary decisions, the court had no difficulty in deciding that the procedure leading up to the decision in that case was flawed. The Government are content to accept that as a general statement of law, and I am satisfied that a court would take a similar approach under the Bill.
Perhaps I may turn to the non-discretionary areas of the Bill. We spoke to the amendment tabled by the noble Lord, Lord Bonham-Carter, which proposes inserting a provision to state explicitly that those areas would fall outside the scope of the exemption and therefore within the purview of the courts. The Government's view is that the amendment is unnecessary and undesirable. It is unnecessary because the ability of the courts to review the actions of public officers does not derive from statutory authority. It is undesirable because inclusion of such a provision could raise doubts about the powers of the courts in relation to other statutes.
Section 44(3) of the 1981 Act, which it is now proposed should be inserted into the Bill, has led to that problem. Of doubtful necessity even at the time, Section 44(3) has given rise to the needless anxieties which have been expressed during the Bill's passage. It has led some to assume that the courts cannot review
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actions taken under a statute unless the statute specifically allows them to do so. This is not that case; but it is an assumption that we should be perpetuating if we were prepared to accept the amendment.
The state of that area of the law was perhaps less fully developed when Section 44(3) was drafted than it is today. The courts are now vigorous in asserting their right to review decisions taken by public bodies under powers conferred by Act of Parliament. The amendment is also inappropriate for another reason: it refers to the rights of persons under the Act. In that respect there is an important distinction between the Bill and the 1981 Act. Whereas in certain circumstances the Act confers British citizenship, or a right to registration as such, the Bill does not confer rights of citizenship. There is no one in Hong Kong who can state that he or she has a right to be registered under the Bill in the same way that people can say that they have a right to be registered under the British Nationality Act 1981. There will be a selection process, and all cases will be subject to recommendation by the Governor and to the character requirements. A provision following Section 44(3) is inappropriate for a Bill which establishes a competitive selection scheme of the kind that the Government propose.
The Bill will impose duties upon the Governor and the Secretary of State, for example, properly to apply the Order in Council. If, for example, an applicant believes that the correct procedures have not been followed, or that he has been wrongly treated as ineligible for consideration under the Bill, nothing in the Bill rules out judicial review. I hope that that makes the position clear. I have been rather long in replying but it is an important point. I hope that the noble Lord, Lord Irvine of Lairg, will realise the reasoning behind the reply.
Lord Mishcon: Everyone will appreciate the way in which the Minister has endeavoured to tackle the matter. The fact that he has had to make such a long speech—although all of us welcome every word that he uttered—means that there is a complex issue involved. One would have hoped that if there were no point in the amendment it could be answered shortly. It is a simple point. If I may say so, deferentially, it does not need complex legal knowledge to understand it.
The first principle is that we do not put into statute anything which is unnecessary because we cause ourselves a great deal of trouble if we do. No one knows that better than the noble Lord, Lord Renton. He has said it many times, and his historic committee said it. We need not repeat it ad nauseam. In those circumstances, I repeat: we do not put something into a statute which is unnecessary. I should have said that that was even more of a principle in this case where every lawyer in Hong Kong will undoubtedly be looking at every word of the Bill so that they may properly advise the many people who will come to them to say that they have been unjustly treated or that they have not even been looked at when they should have been.

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We have an extra duty of care as a revising Chamber. Everyone admits—this is the simplicity of the point—that when we have ministerial discretion which derives from the prerogative, one does not have to give reasons. It is a definite principle of administrative law, as my noble friend Lord Irvine of Lairg has said. So clear is it that where in certain town planning matters, for example, there is a requirement to give reasons, the statute spells that out. The statute provides that reasons have to be given by the Minister so that people may have rights of appeal, whether that applies to listed buildings, or whatever; and it applies to listed buildings under planning legislation.
The Bill, dealing with an emergency and a situation where, I repeat, every lawyer will be scanning every word, suddenly decides—I shall deal with the Nationality Act in a moment—to spell out that one cannot go to court over the lack of reasons. The answer to that is that there is no point in putting in that provision unless one has something at the back of one's mind. The point upon which the lawyer in Hong Kong will hit, I imagine—my noble friend Lord Irvine of Lairg also imagined it—is that the British Parliament is not so ignorant of the law of the land, which has been so clearly laid down, as to spell out the fact that reasons do not have to be given for that discretionary use of the power which derives from the prerogative; and so, as he said, it must have something else in mind.
I wish to put an additional argument to the one advanced by my noble friend Lord Irvine of Lairg on this occasion, although it is one that he advanced on Second Reading. If one looks at the British Nationality Act where the provision relating to not having to give reasons occurs, as the Minister rightly points out, one will find that although Parliament was not then dealing with the possible situation of the Hong Kong lawyer scanning every word of the Act, the British Nationality Act in fact—the Minister did not say this, not because he was misleading the Committee but because, I feel, the point did not occur to him—after using those words says that judicial review applies.
Obviously, I repeat, in Hong Kong, looking at the fact that in this case Parliament has presumably something at the back of its mind when dealing with the obvious in law, the lawyer will say, "But they do not mention, as the British Nationality Act did, judicial review, and that means they have excluded judicial review". The Minister does not want to exclude judicial review, as I understand him. He is saying that judicial review is available. It will not be on the question of the discretion. It will not necessarily be on the question of conduct; but it applies to the machinery that has been used by the Governor and the committee and as to whether they were intra vires when they did what they purported to do. The Minister cannot have it both ways. We shall be in a mess if we accept his judgment on the matter, which is usually infallible; but human beings being less than that, he has fallen for the law of averages. We cannot have it both ways. We cannot leave matters in the
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muddle where the clause in the Bill must be interpreted on the basis that judicial review applies, and then say, "Ah, but don't make it clear and don't use the words of the nationality Act—" which is what Amendment No. 8 spells out—"and don't tell them that the judicial review is applicable".
6 p.m.
Lord Renton: Surely, the operative word is "decision" which appears twice in the subsection. The courts know that they are not competent to entertain an appeal where a Secretary of State has made a decision on nationality, citizenship or the issue of a passport. However, as my noble friend pointed out, and as I said earlier, it is still open to the courts to entertain an appeal on the ground that the method used, the procedure followed was not correct. It would have required express words which are not here to exclude the judicial review of those matters. What is the noble Lord worrying about?
Lord Mishcon: The noble Lord is worrying about the doubt that has been engendered by the following matters. First, as the noble Lord, Lord Renton, admits, words appear in the Bill which are completely otiose. As he said, everyone knows that one cannot challenge a ministerial decision—if we can call it that for all purposes—on the basis that discretion has been wrongly exercised unless the machinery which should have been used has not been used leading up to the decision. The noble Lord admits that we start with the fact that this is unnecessary. We then reach the stage of asking why it has been put in. We look at the wording and find that it does not follow the nationality Act in providing specifically that judicial review is available. Therefore the immediate effect is to think, "The intention of the statute is to omit the right of judicial review".
The other situation is that if there is any doubt at all—and I hope that it will be conceded that there must be some doubt, the amendment has already taken a long time to debate—should not a revising Chamber make the position abundantly clear? It is made abundantly clear by providing—if that is what the Minister prefers—that the words of subsection (5) are retained but in addition, when we come to it, Amendment No. 8 is passed in order that the clear indication in the Bill is that the right of judicial review applies.
I hope that I am not out of order in discussing an amendment that we have not yet reached, Amendment No. 8. I do so only to make my position clear. I would not even mind if the words,
"in respect of the operation of any provisions of this Act"
were excluded so that the legislation merely said:
"Nothing in this Act affects the jurisdiction of any Court to entertain proceedings for judicial review".
Then it is clear, the lawyers are satisfied and all the lawyers in Hong Kong will not have to spend endless hours debating, as we have done this afternoon. They will know that the House of Lords has made the position clear, as it always does.
Earl Ferrers: Perhaps the noble Lord, Lord Mishcon, will permit me to make one point. He has,

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in a delightful way, chided me for making a long speech. He said that as I did so, there was obviously something wrong with what I was trying to get over; in other words, there was a bogey in it somewhere. He said that the point was simple and then, if I may say so, ma de a not insubstantial speech himself on how simple it was.
The noble Lord's simple point was that we should not put into the statute something that was unnecessary. I agree. We also agree that one should not take out of a proposed statute what is necessary. If we removed this provision, and added the words in Amendment No. 8—an addition which the noble Lord, Lord Mishcon, does not like but which nevertheless he proposes—we would give the courts the right to review every discretionary decision. Everyone who is told that he has not been successful will be entitled to or may aim for a judicial review. The system would be clogged.
There are no rights of citizenship under the Bill. What will be reviewed is not a right but a discretionary award which will be given to a limited number of people out of a large number of applicants. I do not believe that that would be suitable.
Lord Monkswell: The Noble Earl has referred a number of times—
The Deputy Chairman of Committees (Lord Alport): The Question is that Amendment No. 5 be agreed to.
Lord Mishcon: As a courtesy to my noble friend Lord Monkswell, I believe that he wished to say something. At Committee stage he is permitted to do so. I therefore sit down to allow him to say what he wishes.
Lord Monkswell: I thank my noble friend. The reason I rise is that there has been some reference to the Bill conferring no rights of citizenship. That seems curious to me in the sense that so far as I am aware, 50,000 citizenships, or even more, 50,000 heads of households would be given citizenship in this country. There are two ways of looking at that. Either we can assume that the Government do not consider that conferring British citizenship is a right. I suspect that even the Government would not go that far.
Alternatively, the points system that will be laid by the Government will amount to nothing. If the points scheme is laid, somebody applying with a high points total could legitimately expect the right of citizenship. Are the Government saying that that is null and void? The high points score of a person of good character under the scheme will be totally irrelevant when it comes to determining citizenship. If that is the case, we are in a different ball game from the one we were in earlier. I am sure that is not the case, but it is the impression given by the Minister. Perhaps he could clarify the concept that the Bill confers no rights. It does not seem to make sense to me.
Earl Ferrers: Perhaps I may help the noble Lord, Lord Monkswell, about his anxiety that the Bill confers no rights. Fifty thousand people will be given citizenship, but 50,000 people will not have a right to
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that citizenship. It will be awarded to them. Of course, once they have citizenship that award contains rights, but they have no right to the award.
Lord Clinton-Davis: Before the noble Earl sits down, in the course of his remarks, to which I listened with great care, I was at a loss to understand why he omitted to deal with the last point raised by my noble friend Lord Mishcon. It was an issue of principle on which he sought to elicit a reply from the noble Earl. If a different phraseology were introduced into the Bill to the effect that, "Nothing in this Act shall prohibit the right of judicial review where it operates"—if that was the quotation that my noble friend used—what is wrong with that? Why should not the certainty of that right prevail in relation to the Bill?
Earl Ferrers: I refer to the very good reason which the noble Lord, Lord Mishcon, himself gave; namely, there is no point in putting into the Bill something which is unnecessary.
Lord Mishcon: I am so sorry that the debate has ended on that note, not because it was an unpleasant note, but because we are now told that the only reason for resisting the solution that I thought proper to bring before the Committee in regard to this amendment and Amendment No. 8, is because it would introduce something which presumably would make life too clear for lawyers and everyone else. I find that an unacceptable argument. In those circumstances, I am afraid that I must ask the opinion of the Committee.
6.10 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 58; Not-Contents, 102.

Division No. 1

CONTENTS

Addington, L.

Jeger, B.

Attlee, E.

Jenkins of Putney, L.

Birk, B.

John-Mackie, L.

Bonham-Carter, L.

Kilmarnock, L.

Bottomley, L.

Kirkhill, L.

Carmichael of Kelvingrove, L.

Lindsay of Birker, L.

Carter, L.

Listowel, E.

Cledwyn of Penrhos, L.

Llewelyn-Davies of Hastoe, B.

Clinton-Davis, L.

Lloyd of Kilgerran, L.

Cocks of Hartcliffe, L.

Lockwood, B.

David, B.

Lovell-Davis, L.

Dormand of Easington, L.

McNair, L.

Ennals, L.

Mason of Barnsley, L.

Ewart-Biggs, B.

Mishcon, L.

Falkender, B.

Molloy, L.

Falkland, V.

Monkswell, L.

Gallacher, L.

Nicol, B.

Galpern, L.

Pitt of Hampstead, L.

Graham of Edmonton, L. [Teller.]

Rea, L.

Serota, B.

Grey, E.

Shackleton, L.

Hampton, L.

Shepherd, L.

Harris of Greenwich, L. [Teller.]

Stedman, B.

Stoddart of Swindon, L.

Henderson of Brompton, L.

Strabolgi, L.

Hollis of Heigham, B.

Taylor of Blackburn, L.

Hooson, L.

Tordoff, L.

Howie of Troon, L.

Turner of Camden, B.

Hughes, L.

Underhill, L.

Irvine of Lairg, L.

White, B.

701

NOT-CONTENTS

Allerton, L.

Lauderdale, E.

Alport, L.

Long, V.

Arran, E.

Lucas of Chilworth, L.

Auckland, L.

Lyell, L.

Balfour, E.

MacLehose of Beoch, L.

Beloff, L.

Mancroft, L.

Belstead, L.

Margadale, L.

Bethell, L.

Marsh, L.

Blatch, B.

Merrivale, L.

Borthwick, L.

Monson, L.

Boyd-Carpenter, L.

Montagu of Beaulieu, L.

Brabazon of Tara, L.

Monteagle of Brandon, L.

Brain, L.

Montgomery of Alamein, V.

Bridgeman, V.

Mottistone, L.

Brougham and Vaux, L.

Murton of Lindisfarne, L.

Caithness, E.

Napier of Magdâla, L.

Caldecote, V.

Nelson, E.

Campbell of Croy, L.

Norrie, L.

Carnegy of Lour, B.

Onslow, E.

Carnock, L.

Orkney, E.

Cavendish of Furness, L.

Orr-Ewing, L.

Coleraine, L.

Oxfuird, V.

Colwyn, L.

Pender, L.

Craigavon, V.

Peyton of Yeovil, L.

Cumberlege, B.

Rankeillour, L.

Davidson, V. [Teller.]

Renton, L.

Denham, L.

Rippon of Hexham, L.

Derwent, L.

Rodney, L.

Downshire, M.

Sanderson of Bowden, L.

Elton, L.

Selborne, E.

Faithfull, B.

Sharp of Grimsdyke, L.

Fanshawe of Richmond, L.

Slim, V.

Ferrers, E.

Strathclyde, L.

Fraser of Carmyllie, L.

Strathcona and Mount Royal, L.

Fraser of Kilmorack, L.

Geddes, L.

Strathmore and Kinghorne, E. [Teller.]

Gray of Contin, L.

Greenway, L.

Sudeley, L.

Hailsham of

Swinfen, L.

Saint Marylebone, L.

Teviot, L.

Halsbury, E.

Thomas of Gwydir, L.

Harmar-Nicholls, L.

Thurlow, L.

Henley, L.

Trefgarne, L.

Hesketh, L.

Trumpington, B.

Hives, L.

Ullswater, V.

Holderness, L.

Vaux of Harrowden, L.

Home of the Hirsel, L.

Wade of Chorlton, L.

Hooper, B.

Wedgwood, L.

Hylton-Foster, B.

Willoughby de Broke, L.

Johnston of Rockport, L.

Wise, L.

Joseph, L.

Wyatt of Weeford, L.

Kimball, L.

Wynford, L.

Kitchener, E.

Resolved in the negative, and amendment disagreed to accordingly.
6.18 p.m.
Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 6:
Page 1, line 24, at end insert:
("( ) The Secretary of State may by order amend subsection (1) above by substituting a higher figure for the figure for the time being specified there if the Governor recommends that it is necessary to do so in order to maintain the stability of Hong Kong or the safety of its residents.").
The noble Lord said: The purpose of this amendment is to emphasise that the object of the whole of this Bill is to provide reassurance to the people in Hong Kong. That reassurance has to be sufficient to persuade them to stay in Hong Kong in order to staunch the haemorrhage of emigration which is taking place at the moment at the rate of between 55,000 and 60,000 people a year. I believe that most people would agree that we cannot afford to allow that rate of emigration to continue indefinitely.
On Second Reading the most reverend Primate gave interesting figures on the size of the emigration that is taking place and its composition in relation to sections of the population with which he has particular familiarity. No doubt the position is no different in other areas. The most reverend Primate told us that by 1992 or 1993 10 per cent. of the Hong Kong population will have gone. That figure will include 20 per cent. of Hong Kong Christians and 25 per cent. of Hong Kong clergy. If that is translated into more commercial terms it indicates that the more skilled the segment of the population that one takes the higher the rate of emigration. He added that the crying need was now to restore confidence.
I understand that that lies at the heart of government policy. It is based on the proposition that only by assuring people that they can leave will they be persuaded to stay. Without that assurance they will leave. The Government believe that if they offer registration as British citizens for up to 50,000 heads of families that will do the trick. They believe that those people will stay in Hong Kong, the haemorrhage of emigration will be staunched and the prosperity of Hong Kong will be maintained.
Members of the Committee are aware that we on these Benches take the assumption on which the Government's policy is based rather more seriously than they do. We believe the Government's assumption that the promise of British citizenship to 50,000 heads of families will persuade them to stay in Hong Kong. We believe that if that is true of those 50,000 families it will be true of a far greater number.
I am aware that the Government will not accept that argument. Even if they agree that the figure of 50,000 was plucked out of the air, or that it was a figure they believed to be the maximum they could sell to some of their colleagues in another place, and if they further agree, as they must, that the future is extremely difficult to read and that conditions may change between now and 1997, I believe that they would wish to give themselves some flexibility to alter the number if they find it to be insufficient. I understood the noble Lord, Lord Shepherd, to say that and I understood the noble Lord, Lord Marsh, to indicate some sympathy with the view. We cannot know for sure that 50,000 is enough to provide the reassurance and persuade a sufficient number of people to stay in Hong Kong who are otherwise threatening or planning to leave.
It is to address that hypothetical position that the amendment has been framed. It tries to provide the Government, on the recommendations of the Governor, with some flexibility in action in pursuing successfully the policy to which they are committed. I hope that the Government will welcome the amendment. If they cannot do so I hope that they will consider it seriously and confirm that that is their intention. I beg to move.
Lord Renton: I hope that my noble friend will not accept the amendment. The proposal to take 50,000 more people into this overcrowded country of ours with, in places, heavy unemployment, over-urbanised areas and various social problems is challenging

703
enough and it was rightly accepted by Parliament. However, to go beyond the substantial figure of 50,000 would, in my opinion, be contrary to the wishes of the people of this country. I am sure that honour will be satisfied by taking 50,000 people from Hong Kong in the manner laid down in the Bill. I hope that my noble friend will stick at that.
Lord Wyatt of Weeford: I support the amendment. It was always my understanding that the Government intended to watch the situation carefully. I understood that if he situation with regard to Peking deteriorated considerably the Government would consider taking a number greater than 50,000. It is better to have the amendment on the face of the Bill because it will give latitude to the Governor and enable him to answer circumstances that might change for the worse. On the other hand, circumstances may change for the better and the provision will never be activated. However, if it were on the face of the Bill a great deal of unnecessary discussion would be saved should an emergency arise.
Lord Harmar-Nicholls: It would be possible to hold the point of view expressed by the noble Lord, Lord Wyatt, but to be opposed to the amendment. If the time should come when, because of unforeseen circumstances, the figure should be raised, Parliament should do so. To do so under an order from the Secretary of State is not the right way. None of us is oblivious of the strong feelings that were expressed and de bated prior to the publishing of the Bill now before us. If circumstances should arise—and who can rule out anything—where the figure should be raised, Parliament should do so after full and proper discussions. Full and proper account should be taken of the national circumstances and the strength of feeling as regards whether we could afford to have them and whether it would be right to do so. Even if the circumstances envisaged by the noble Lord, Lord Wyatt. arose, the amendment should not be accepted enabling the Secretary of State to raise the figure by order. The issue would be greater than that and we should not pass this amendment, however we view the possibility.
Lord Monson: I oppose the amendment because there is no mandate for it. Indeed, it flies in the face of public opinion. As I said on Second Reading, I believe that there exists majority support for admission in extremis into this overcrowded island of up to 50,000 carefully selected heads of families plus their wives and children. In addition, perhaps there should be a few hundred deserving hard cases who are not covered by the Bill before us. However, I am certain that there is no majority support for any material raising of the upper limit of 50,000.
Lord Howie of Troon: This is probably one of the most important amendments before the Committee. I accept the general proposition stated by the Government that there should be a limit to the number of residents of Hong Kong who are entitled to come here, whether or not they do so. I also accept the general proposition expressed by the noble Lord, Lord Bonham-Carter that there should be more than 50,000. However, I do not know how many more.
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I do not believe that 50,000 is a figure which has any mandate which, unless I misunderstood him, was suggested by the last speaker. It is a figure that has been plucked out of the air and it would be reasonable to pluck another figure out of the air. It might be 60,000, 75,000 or 100,000—I do not know. However, no particular figure is inherent in the amendment. It suggests a figure that would maintain stability in Hong Kong.
As a result of my interventions on an earlier amendment it will be clear to the Committee that I believe that an engineering dimension is extremely important in this matter. I am supported in that view by comments made by the Hong Kong Institution of Engineers. It described that colony—or what will be a former colony—by stating:
"Hong Kong, which has often been summed up as a place of trade"—
and we all think of it as a place of trade—
"could be described just as fittingly as a place of engineering. Indeed, it is an engineered place in a most direct sense—bits and pieces of picturesque but unproductive land so small as to be invisible on a map of the world, transformed into the world's busiest harbour city. Without engineering the bits would never have come together. Without ongoing engineering they would fall apart".
That is the basis of the argument which I put earlier today and put now. Without a continuing engineering dimension, Hong Kong will not be there in any real sense in 1997; at any rate, it might be there in 1997 but it will fall apart fairly soon afterwards. As I said before, for that reason I do not believe in the proposition put before the Committee directly in the sense of 50,000 people and their families and indirectly in the sense of the scheme detailed in the Library, but not unfortunately in this Bill. I should much prefer the scheme to have been a schedule to this Bill so that we could have discussed it and amended it in detail on the Floor of this Chamber.
As I understand it, some 10 per cent. of the first tranche of 32,000 or more of the 50,000 people comprises engineers, among others. Engineers in this case is a very wide grouping which includes all kinds of engineers and others who would not normally be thought of as engineers. That means 3,200 people—in fact 3,230 but let us not be too pernickety about the odd 30. But membership of the Hong Kong Institution of Engineers is more than twice that number. So, in speaking of 50,000 plus the provisions of the schedule (which is not in fact before us) we exclude more than half the members of the Hong Kong Institution of Engineers, although it is the first and as yet the only overseas engineering institution which is affiliated to the Engineering Council in this country.
There are different ways to approach the difficulty. I believe that the stability of Hong Kong means sustaining the engineering population of that country, which can be done in two ways. One is to increase the 10 per cent. proportion which is suggested in the schedule before us; the other is to increase the total number to which that 10 per cent. applies. The Government have not shown any inclination to increase the proportion. Indeed, they have ignored

705
everything that I said in the earlier part of the debate. However, one way of ensuring the continued stability of Hong Kong as an engineered colony and an engineering colony is to increase the total number to which that 10 per cent. applies.
For those reasons, I support the amendment. In passing—this is no more than an aside and no great attention should be paid to it—I simply say that the citizens of Macao will be able to come here anyway through Portugal and the Common Market. I believe that we could stand a few more Hong Kong Chinese as well as a few more Macao Chinese.
6.30 p.m.
Lord Monson: Perhaps I may reply to the noble Lord before he sits down because he challenged my assertion that there was a mandate for the admission of no more than 50,000 heads of family. It is true that, strictly speaking, there is no electoral mandate as such but public opinion polls seem to suggest that public opinion would be agreeable to the admission of 50,000 middle class (if you like) heads of family plus their wives and children—a total of about 225,000 people—but would not be happy with the admission of a substantially greater number.
Lord Howie of Troon: I am grateful to the noble Lord for correcting me. I thought that a mandate meant a mandate rather than some sort of opinion poll. No doubt that was my fault. However, I was not thinking of a substantially greater number; I was thinking of a greater number.
Lord Marsh: It is possible to put a number of arguments against this amendment. Personally, I shall be very interested to hear the arguments put forward by the Government. However, the arguments against the amendment at the moment amaze me. If this Bill is successful, the very people who will qualify for registration are those who are privileged now and will remain privileged certainly with the People's Republic of China because it is recognised that they are the people who will make things work.
Does one believe that the moment these people get their hands on their new passports they will flood out of Hong Kong? If so, with the greatest respect, the sensible course would have been to have voted against the Bill on Second Reading so that the whole basis of the Bill would have fallen. One respects considerably the views of every Member of this Chamber; but I cannot understand that argument.
If one believes that the purpose of the Bill is to enable an unknown number of people to leave Hong Kong and come to the United Kingdom, the basis of qualification would have to be totally different. On that basis, the system of qualification envisaged in the Bill is indefensible. The noble Lord, Lord Mishcon, and I had a slight disagreement earlier; but I could not defend the Bill if that were the objective because it would be totally wrong—
Lord Renton: I am grateful to the noble Lord for giving way. He is quite right in talking about the assumption of the Bill. It is the assumption that most people have made; namely, that these people, if given
706
passports, will not necessarily come here. But suppose that things become very oppressive in Hong Kong as the result of turning to China, and that these people, perhaps even because they have applied for passports, are subject to serious oppression. They may then come here in very large numbers.
Lord Marsh: This Chamber has to work on the assumption that the Bill is a real contribution to stability in that area. If one does not believe that, it is pointless. I come back to my basic point: if one does not believe it, one should look for an entirely different basis of selection. In conclusion, I believe that there are arguments which can be advanced against this amendment. At the moment my thoughts are very ambivalent toward it. However, with great respect, the argument that I have heard so far cannot be supported by logic.
Lord Harmar-Nicholls: Does the noble Lord think that it should be done by order even if those things happen? Is not the proper way to proceed through Parliament because of the fundamentals behind the change?
Lord Marsh: I do not want to get involved in a duel of words. I make the assumption that the problem can be faced and that this solution can work. If I did not believe that, I think that one would be looking at something very different indeed.
Lord Willoughby de Broke: I admit that I share the wish of the noble Lord, Lord Bonham-Carter: that we might have been able to offer more passports. But at this stage I am not able to support his amendment simply because of the delay. After all, this is a short-term Bill and Hong Kong needs it now. If we send it back for revision to another place for the numbers to be picked over, who knows when it will be enacted. Hong Kong needs this Bill now. Therefore I feel unable to support the amendment of the noble Lord.
Lord Shepherd: We are only in the difficulty that the Bill is at this stage at this part of the Session. The Bill had its Second Reading some three weeks ago. If it had been so important to get the legislation through, the Bill could have been brought forward a week or Parliament could sit into August. We are dealing with the last of our colonies, the last of our responsibilities. I apologise to the noble Earl, Lord Ferrers, and to the Committee. I spoke on an earlier amendment thinking that it was a general debate. I shall not say who misled me; but I was misled.
The crucial issue is not that we are giving British citizenship to Hong Kong Chinese or those who live in Hong Kong. We are seeking a way in which the Governor, the Government of Hong Kong and Her Majesty's Government can sustain the rule, the commercial benefits and commercial strengths of the colony up to 1997. I consider that 50,000 might be about right. It could be right; it could be wrong. I support the amendment because it gives a degree of flexibility. A figure above 50,000 would only be agreed to with the permission of this Chamber and by another place approving the order.

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I believe that the movers are seeking to provide a degree of flexibility—not an open door for a massive influx of numbers—by which judgments can be made in the interests of Hong Kong during that period. That is the way in which I regard the amendment.
If the amendment were passed, and it went to another place, such an arrangement is not beyond the wit or those who are responsible for business management in Parliament. I know that it can be done if that is the wish because I have done so both as a Chief Whip and as Leader of the House. But to resist the amendment on the basis that it would create difficulties for the administration of the two Houses, would be unfair with regard to the critical responsibility of the present Governor and his successor in Hong Kong. At the end of the day we shall be held responsible.
I support the amendment. I do not say that the figure should be 50,000, or 60,000. I simply wish to see some degree of flexibility so that Hong Kong can be sustained during the difficult years that lie ahead.
6.45 p.m.
Lord Brabazon of Tara: I have listened carefully to the arguments expressed in support of the amendment but I am afraid that I have not been persuaded by them. To us the amendment is unacceptable for two reasons.
First—and I very much agree with my noble friend Lord Harmar-Nicholls—it is the Government's view that it must be for Parliament to approve the size of the assurance scheme. It would be wrong in principle to accept an amendment which empowered the Home Secretary to make such an important change without seeking Parliament's approval through further legislation. I have little doubt that it would also cause considerable public disquiet. That is why the ceiling on the numbers has been written on the face of the Bill.
Lord Howie of Troon: Why would further legislation be required if the amendment were accepted? Would not such a measure be the further legislation? The Secretary of State would be in no way incommoded.
Lord Brabazon of Tara: The amendment states "by order". It does not state that it has to be approved by either or both Houses of Parliament. I believe that that is the very least that would be required.
Lord Shepherd: It is not legislation.
Lord Brabazon of Tara: I disagree with the noble Lord. The amendment provides that the Home Secretary can make an order to increase the numbers without seeking Parliament's approval.
Secondly, I believe that in making provision for 50,000 families the Government have the figure about right. I recognise that there are some both here and in Hong Kong who think that the Bill should cater for a much larger number of people. Some of those have spoken this afternoon. There are some who have called for citizenship to be granted to all 3.25 million British dependent territory citizens in Hong Kong. That I believe is the view of the party of the noble Lord, Lord Bonham-Carter.
Lord Tordoff: I am grateful to the Minister for allowing me to intervene. That was certainly the view in principle of Members of our party as articulated by my right honourable friend the Leader of my party in another place. However, it is quite clear that we have taken the view that this is the Bill now before us and that it is our job to amend it. With all due respect to the Minister, it is unfair for him to suggest in any way that the amendment that we put forward is an indication that we wish to see 3.25 million people involved in this process. My noble friends and others have made the position quite clear. We accept that this is the only Bill that we shall have. We are trying to make it workable.
Lord Brabazon of Tara: I did not say that the effect of the amendment would be to allow all 3.25 million British dependent territory citizens in Hong Kong to come here. I merely said that there were those who held the view that 50,000 was right; there were those who held the view that it should be more; and there were those who held the view that it should be all the 3.25 million. I believe that that was the policy of the noble Lord's party. I was not trying to say that he would let them all in at one go if the amendment were passed.
I believe that there is now a widespread recognition even in Hong Kong that that would not be feasible or realistic. In fixing the ceiling the Government have had to balance the need for a figure capable of having a real impact on confidence in Hong Kong with the need to limit the commitment to one which this country could honour if, against our expectations, most of the beneficiaries decided to settle here. That point was made by my noble friend Lord Renton and I believe the noble Lord, Lord Monson. I hope that it answers the points of the noble Lord, Lord Marsh.
The Government have undertaken extensive consultations both here and in Hong Kong. They have examined the occupational profile of Hong Kong's working population, the rates at which different groups of people are emigrating, and the representations made to us by people from many different walks of life. Here I admire the pleading of the noble Lord, Lord Howie of Troon, for his own special interest group. I am sure that if other special interest groups were represented in this Chamber they would also say that not enough of the other professions were included in the figures.
However, the figure of 50,000 is the result of weighing up those factors. Of course it is a judgment, not a scientific calculation. But 50,000 is equivalent to over half the number of key personnel who might be expected to leave Hong Kong by 1997 at the present rate of emigration. Both we and the Governor of Hong Kong believe that a scheme on this scale will make a significant contribution to bolstering morale and slowing down the haemorrhage of skilled and talented people from the territory. For those reasons, I urge the Committee to reject the amendment.
Lord Rees: Before my noble friend sits down, will he be so kind as to answer one question which arises from the first point he made for looking with disfavour on the amendment? Let us suppose that at

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Report stage a somewhat similar amendment was put down that obliged the Secretary of State to lay an order subject to the affirmative resolution procedure. I apologise if the point has already been disposed of. It seems to me that that procedure would not be open to the same constitutional objections. It would ensure that if a different figure were put forward it would be subject to proper review and debate by both Houses of Parliament. Can my noble friend reassure us on that point?
Lord Brabazon of Tara: It would certainly go a long way towards answering the first criticism that I made of the amendment. But it would not answer the second criticism: that the 50,000 figure appears to us to be the right figure and we simply could not accommodate more than that if the cheque had to be cashed.
Lord Howie of Troon: Perhaps the noble Lord will accept my thanks for the kind words that he directed towards me. However, will he think again about his comment on my special interest group? I do not have a special interest group in the shape of the Hong Kong Institution of Engineers. I happen to be an engineer, and consequently I look on engineers with more sympathy than most people in this country do, but I do not have in any way a special interest group in Hong Kong. I wish that to be made absolutely and totally clear.
Lord Brabazon of Tara: Of course I accept that. But what I was saying is that others would no doubt argue for a greater number of different groups if they had the opportunity.
Lord Shepherd: I take it from what the noble Lord has said that he has closed his mind to any situation that may arise between now and 1997 when, in the interests of the stability of Hong Kong, both the Governor and the Secretary of State may feel the figure should be uplifted, not by dramatic figures but maybe by 1,000, in order to ensure stability. The Government have closed their mind so far as this legislation is concerned, but in order to deal with the situation they would need a Bill similar to that before the Committee today. That is what the noble Lord is saying, is he not?
Lord Harmar-Nicholls: I do not think the noble Lord is fair in putting his argument in the form of "closed mind". In terms of stability, there is the stability of this country too to be borne in mind. Of course we want stability in Hong Kong, and we hope we have arrived at the point where we have been able to achieve that. But it has taken a long time to get to the point where that stability for Hong Kong is accepted by people who are concerned about the stability here. For those of us who live in parts of the world where the immigration problem is making a fundamental difference to the very nature and general impetus of the area, that has to be taken into account. It is not a matter of having a closed mind. The Government have reached this point after long discussion and negotiation, after having tested the water in Hong Kong, here and everywhere else. It is a matter of having arrived at what one hopes is the formula that will work at both sides of the problem.
Lord Shepherd: The noble Lord has gone a little further than I had in mind. I was putting to the Minister that by rejecting the amendment before the House, if in the interests of the stability of Hong Kong between now and 1997 50,000 proved to be unattainable, new legislation would be required. In other words, if the amendment were passed, it could be done by statutory order, Order in Council, or whatever it might be, subject to the affirmative resolution of either House.
Lord Mishcon: I have been keeping a discreet silence on the amendment; but I might be misleading the Committee if I did not rise from this Front Bench as a result of the views expressed perfectly sincerely by the noble Lord, Lord Shepherd. The Opposition have made their position abundantly clear; namely, that the dislike the points system and regard it as unfair. If we supported this amendment, it would mean that we were supporting anew the increase in the figure under the points system. For that reason alone, if this were put to a Division I should have to advise my noble friends to vote against the amendment.
Lord Brabazon of Tara: Before the noble Lord, Lord Bonham-Carter, decides what to do with the amendment, perhaps I may answer the point of the noble Lord, Lord Shepherd.
We believe that the proposition that a maximum figure should be written on the face of the Bill has always been fundamental to this piece of legislation, and to accept an amendment such as this would stimulate expectations in Hong Kong that we could not fulfil.
We are convinced that the scheme will be effective. We also believe that it would be difficult for this country to honour a commitment on a significantly larger scale. Therefore, we have no plans to come back to Parliament to seek approval for additional assurances in a further Bill.
Lord Monkswell: Perhaps I may say a few words in defence of Lord Howie of Troon and in rebutting what the Minister said. The Minister seemed to give the impression that engineers were a particular interest group.
Lord Brabazon of Tara: One of many interest groups.
Lord Monkswell: I accept that the Minister is suggesting that engineers are only one of many interest groups, but perhaps I may put it to the Government that in terms of the material continuation of Hong Kong engineers are an essential requirement. Effectively the point that Lord Howie was making was that Hong Kong would literally fall down if it were not for engineers. It is not a question of them being a special interest group; it is a question of them being an essential requirement for the future material well being of Hong Kong.
Lord Bonham-Carter: I must confess that I have found the response to this debate by the noble Lord, Lord Brabazon of Tara, deeply unsatisfactory. The position put by the noble Lord, Lord Willoughby de Broke, has been very clearly and satisfactorily answered. I said at the beginning of the debate that it

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did not seem to me that it was up to us on these Benches to arrange the Government's business. It is up to the Government to arrange their business, and if at the end of the Session they get themselves in a position in which a very important measure which affects the lives of millions of people, and which affects and reflects on our responsibilities to those people, is given too little time to be discussed properly, that is not the fault of us on these Benches or on the Labour Benches; it is the responsibility or the irresponsibility of the Government.
The reply of the noble Lord, Lord Brabazon, seemed to be strange. Of course I should be perfectly happy if the order were one which was approved by both Houses of Parliament, if that makes the whole difference. I see very clearly the case to be made for that, and I accept it. That can easily be dealt with. The difficulty is when the noble Lord says that the Government believe they have the figure right. How can they possibly believe they have the figure right? It is not a judgment; it is a guess about what is going to happen between now and 1997. How can the Government claim that that they have such prescience, such X-ray eyes into the future, that they can actually foretell how things will develop between now and 1997? So confident are they that they have the fig are right that they are not prepared to give themselves flexibility to change course by one iota should it prove that events do not develop in quite the way that they guess they will now.
Secondly, one must respond to the fears expressed by the noble Lords, Lord Renton and Lord Harmar-Nicholls. The problem with their case is that it actually denies the whole basis on which the Bill has been put before both Houses of Parliament. The basis on which the Bill has been put before the Houses of Parliament of this country is that if we can supply sufficient reassurance to the people of Hong Kong they will stay there, but that if we do not supply sufficient reassurance they will come here or go somewhere else, but above all they will leave Hong Kong and will gravely damage its prosperity, and therefore they will gravely damage its prospects in the future.
To go on saying that the prospect is that 50,000 or 75,000 people will come here is to deny the whole argument on which the Bill is constructed. One cannot really accept it, quite apart from the fact that the figures show that people from Hong Kong do not come here. They go first of all to Canada, next to Australia, thirdly to the United States, and finally they may come here. So both in theory and in practice the noble Lord's argument does not hold water.
Finally, he raised the question of things going from bad to worse—what was called the Armageddon scenario. That is something which I would not advise anyone to neglect in their calculations. But if the Armageddon scenario takes place, one must remember what was said on 14th June last year by Sir Geoffrey Howe:
"In the … last resort situation of events overwhelming the people of Hong Kong, then in those circumstances it is, I think, inescapable that the United Kingdom with its special responsibility for the territory would be the country to which
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they would look for treatment as refugees and we would have to try and discharge that responsibility with the help of others".
That was true then and it remains true now.
The noble Lord, Lord Mishcon, is at least consistent in his view that we should not have any. It is a view which I cannot accept, nor, to be honest, can I admire it. However, he has taken a consistent view: the way in which we can help the people of Hong Kong is by installing democracy there. As I said on Second Reading, that is all very well, but it will not ensure their future.
7 p.m.
Lord Mishcon: The noble Lord is kind to give way. I have never said we should not have any. I have never said that we should not have any more. I shall not repeat my Second Reading speech, but I made it perfectly clear that we could not support an amendment which meant that additional people from Hong Kong were selected under a points scheme. Perhaps I may quote the noble Lord, Lord Monson, who apparently believes that the public of this country have expressed a view that they would not mind a few more provided that they came from the middle class. I wondered whether the working class of this country were included in that assessment of public opinion.
Lord Howie of Troon: Before the noble Lord responds, perhaps I may say that I found the intervention of my noble friend Lord Mishcon, not just now but earlier, quite shameful. Whatever my Front Bench may do on the amendment, I shall certainly support it.
Lord Bonham-Carter: I am most grateful to the noble Lord. I apologise to the noble Lord, Lord Mishcon, if I misinterpreted the position that he explained at some length at Second Reading. However, I do not altogether blame myself for not having a totally clear picture of his position.
As I said, I am disappointed by what the noble Lord said in reply to my speech. We may return to the matter on Third Reading, but, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 7 not moved.]
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Derwent: I have given notice to my noble friend the Minister that, as the clause authorises a scheme to be set up in accordance with Schedule 1, this would be the right moment to record my views on one of the detailed provisions of the draft scheme which the Government have circulated and which will in due course be laid before your Lordships, if the Bill is passed.
Earl Ferrets: Perhaps my noble friend will forgive me if I interrupt him. I fancy that he wishes to talk on whether the clause should stand part of the Bill, as I dare say that one or two other noble Lords wish to do. I wonder whether it would be more for the Committee's convenience if we took that after dinner rather than straightaway.
Viscount Ullswater: I suggest that we return to this business at 8 o'clock. I therefore beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Redundancy Payments (Merchant Seamen Exclusion) Order 1973 (Revocation) Order 1990
7.2 p.m.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne rose to move, That the draft order laid before the House on 14th June be approved [21st Report from the Joint Committee].
The noble Earl said: My Lords, this somewhat unusually entitled order is intended to achieve a very simple purpose. It repeals with effect from 30th September 1990 a small piece of legislation, which is no longer necessary, relating to redundancy arrangements in the Merchant Navy. As your Lordships will know, our statutory provisions for redundancy payments date from 1965 and give employees a right to compensation according to a fixed formula if they are made redundant after working for an employer for at least two years.
The legislation relates to the workforce as a whole, but it was recognised at the outset that there might be a few cases where working arrangements within an industry made the statutory scheme inappropriate and where it would make good industrial relations sense to allow that industry to continue with its own arrangements.
There is therefore a power in the redundancy legislation for Parliament to make an order excluding particular groups of workers from the statutory scheme on the basis that they are covered by redundancy arrangements at least as favourable in their own industry. Such an exclusion order was made in respect of merchant seamen in 1968 and renewed in 1973. It affected seamen whose terms of employment were covered by National Maritime Board agreements and a few special categories such as radio operators. Under those agreements, redundancy entitlement is based on continuous employment under the established service scheme, not necessarily with a single employer or a single vessel, so that employees may qualify who might not have satisfied the two years' service requirement of the general state scheme.
That is the historical position. However, conditions have changed greatly in merchant shipping in recent years and the industry has decided that its collective arrangements are no longer relevant or useful. The workforce in the merchant marine has contracted for a variety of reasons and the vast majority are now employed on company contracts which typically run for more than two years. In those circumstances, the employers' side of the industry has given notice that it proposes to end its established service scheme and proceed on the basis of contracts negotiated within
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companies. I understand that that effectively acknowledges a state of affairs that already exist in practice.
Those changes are not matters for government. They are for the industry, although it seems to me sensible that individual shipping firms should negotiate terms with their own employees in the light of their own commercial circumstances. It is, however, a logical consequence of the ending of the established service scheme that the exclusion from the statutory redundancy provisions is no longer required. When the industry-wide scheme ceases, the seamen concerned will once again be entitled to the benefits of the Employment Protection (Consolidation) Act 1978, like all other employees, supplemented of course by such contractual severance payments as apply in particular companies.
As I have made clear to your Lordships, the revocation order is a necessary consequence of the ending of the shipping industry's special arrangements. It is not for me to justify the course that the industry has adopted, though I believe it to be sensible. It falls to me merely to invite your Lordships to agree to the making of the order, so returning our merchant seamen to the protection of the statutory redundancy scheme on the same footing as the rest of the workforce. I commend the order to your Lordships. I beg to move.
Moved, That the draft order laid before the House on 14th June be approved [21st Report from the Joint Committee].—(The Earl of Strathmore and Kinghorne).
Baroness Turner of Camden: My Lords, I thank the Minister for his clear explanation of the order. There is little that we on this side of the House can add to what he has said. Obviously, if the special arrangements governing redundancy provisions in the shipping industry no longer apply, the employees concerned should have the cover of the state redundancy scheme. I therefore welcome the fact that the order is being introduced to make sure that they have that protection.
The Earl of Strathmore and Kinghorne: My Lords, I thank the noble Baroness, Lady Turner of Camden, for her kind remarks.
On Question, Motion agreed to.
Viscount Ullswater: My Lords, I beg to move that the House do now adjourn during pleasure until 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.8 to 8 p.m.]

British Nationality (Hong Kong) Bill
House again in Committee on Clause 1.
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Derwent: I agreed with the Minister that since this clause deals with authorising a scheme to be set up in accordance with Schedule 1, this is an appropriate

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moment to express one's views on some of the detailed provisions of the draft scheme which the Government have circulated and which will in course be laid before your Lordships if this Bill is passed.
As I mentioned at Second Reading, the point which worries some of us concerned with business in Hong Kong—and I declare my interest—is the definition of the provision that points should be awarded to those working for British firms. First, I should make it absolutely clear that I am strongly in favour of giving points to those individuals who have personal British links. Indeed, I imagine that all Members of the Committee would agree with this, and I even feel that perhaps more points should be awarded under this head than is at present envisaged.
Secondly, it seems to me obvious that Britain should look to further its own commercial self-interest; and I have no difficulty at all with the proposition that those who may further Anglo-Hong Kong business relations should be favoured.
But it does not follow at all that it is in the British commercial interest to favour those firms which happen to be registered in Britain over those who are registered in Hong Kong itself. The important point is to get at those individuals and firms who are actually helping Anglo-Hong Kong business.
Perhaps I may give two examples. Both electricity generating companies in Hong Kong, Hong Kong Electric. and China Light and Power, which is controlled by the noble Lord, Lord Kadoorie, are buyers of British generating machinery. They employ engineers and others who are familiar with British equipment and are good clients of British companies. It must be in the British interest that these individuals should remain with their companies and in Hong Kong. However, those employees do not work for English based companies. Furthermore, they are likely to be less favourably inclined to continue to buy British if they feel that they have been discriminated against in the award of points.
Another example is presented by the two note-issuing banks, the Hongkong and Shanghai Banking Corporation and the Standard Chartered Bank—the first registered in Hong Kong and the second in London. Is it seriously suggested that it is in Britain's commercial interests to discriminate against the Hongkong and Shanghai Banking Corporation which is intimately involved in probably the bulk of Anglo-Hong Kong trade?
There is also a serious political point. The Government have been at pains to stress that Hong Kong is until 1997 in all senses British. Only the right of abode has been in question. If we now claim that "Hong Kong firms" are not "British firms" this will be taken as showing that we no longer regard Hong Kong is British in any true sense.
This is a matter which has been considered in depth in the past. Members of the Committee may recall that in 1981 the Hong Kong and Shanghai Bank made a bid to acquire the Royal Bank of Scotland. The question arose as to whether the Hongkong and Shanghai Banking Corporation incorporated in Hong
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Kong was a British or a foreign bank. The Lord Privy Seal, speaking in another place for the Government stated:
"It is a misapprehension held by some people, regrettably, that the HongkongBank Group is a foreign bank. It is not a foreign bank. It is a bank that is incorporated in a British Dependent Territory and it is subject to the rules of that territory".—[Official Report, Commons, 18/11/81; col. 275.]
The Monopolies Commission took the same view. Page 90 of its report states:
"Certainly there is no question of our regarding the Hong Kong Bank as a 'foreign' bank".
I therefore suggest to the Committee—and I am indebted to the noble Lord, Lord MacLehose, for the suggestion—that the definition of a British firm for the purposes of awarding points should be "any firm which is incorporated in the UK or in any of its dependent territories", which includes Hong Kong. In order not to cast the net too wide I would add the provision that the firm must engage in substantial business between Hong Kong and the United Kingdom.
My suggested formula would be fair, clear and easy to administer. Clarity is important. Vague concepts such as "British managed" are impossible to define and will be considered deeply suspect. The formula would achieve also the primary objective of favouring firms involved in business with the UK over firms incorporated in, say, France or Germany or Japan or the United States, and it would help those Hong Kong firms which are major clients of this country.
I very much hope that this is a matter to which the Government and the Governor will give careful thought when they come to draft the scheme in its final form.
Lord MacLehose of Beoch: I very much support what the noble Lord, Lord Derwent, said. I support the concept of giving points as set out in paragraph 14 of the draft scheme—a copy of which has been placed in the Library—for connections with the UK through, as stated in the draft, investment, relatives, residents, education and so on. However, the inclusion of the phrase "service with British firms" causes a great many unintended problems, and I believe that further thought should be given to that matter. It would discriminate in the most bizarre way between firms which are all British but which happen to be domiciled in different parts of British territory.
Many firms, large and small, which are pillars of Hong Kong, do great good for British business interests but happen to be domiciled either in the United Kingdom, Hong Kong or other British territory such as Bermuda. To discriminate between them at this juncture, even in this small way, would be most unfortunate. It might undo some of the good which has undoubtedly been done by the publication of the Bill.
Perhaps something can be done by tighter drafting to give a lift to British firms, whether domiciled in the United Kingdom, Hong Kong or other British territory, and which conduct substantial business between Hong Kong and the United Kingdom. If that could be done in a way which was simple to

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administer, then I would support it. If it is to be complicated, it is only a small part of the scheme and I suggest that it would be better to drop it.
Earl Ferrers: I am grateful to my noble friend Lord Derwent for restraining himself from speaking to Clause 1 stand part before dinner and for making his contribution now. I am also grateful to him for drawing this point to the attention of the Committee. It is an important point and Members of the Committee who are well versed in company matters and familiar with the intricacies of company structure will not be surprised to learn that the Government are finding it somewhat difficult to establish a definition of what should constitute a British firm for the purposes of the Bill. A number of different suggestions have been put forward and the range of firms likely to be included varies one from another.
We are seeking to find a definition which will include firms which have a real claim to be regarded as British, while excluding the rest. There would be no point in a definition which was so broad that a higher proportion of applicants qualified for the extra points; the intended advantage would be cancelled out. It is plain that any criteria would have to be clear, readily verifiable and would not result in an administrative burden which would slow down the whole process of selection under the scheme.
That response may not be very satisfactory to my noble friend, nor indeed to the noble Lord, Lord MacLehose, who is deeply concerned about this matter. We are continuing to consider the possibilities and will bear in mind the suggestions made by the Committee this evening. I cannot give a strict definition tonight. We shall also reflect carefully on the implications of what has been said regarding the potentially divisive effect of awarding British links points on any basis not widely regarded as reasonable and fair. I also note the suggestion of my noble friend Lord Derwent that points for individual links with Britain should be considered.
Clause 1 agreed to.
[Amendments Nos. 8 and 9 not moved.]
8.15 p.m.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 10:
After Clause 1, insert the following new clause:
("Registration of widowed spouses
. The Secretary of State shall register as a British citizen a widowed spouse of a British Citizen resident in Hong Kong who dies after the coming into force of this Act.").
The noble Baroness said: The purpose of this amendment is to protect widowed spouses of British citizens resident in Hong Kong who die after the coming into effect of the Act. I am pleased that the noble Lord, Lord Tanlaw, added his name to the amendment although he cannot be with us this evening.
There was considerable debate regarding this subject in another place, both following amendments tabled at Committee stage by the Labour Party and amendments tabled by Mr. Paul Channon at Report stage, which had all-party support. However, the
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response from the Minister was not very clear; it did not go far enough to satisfy the concerned group of people in Hong Kong or the organisations representing them. It is for that reason that I move this amendment—in order to persuade the Minister to state very clearly what is the position regarding this small but vulnerable group of people and to see what reassurance he can give them.
The members of the organisation called the Concerned British Expatriate Society put forward the grounds for their anxiety. They are as follows. They say that they understand that the Home Secretary indicated some provision for spouses in the event of a British citizen's death in Hong Kong, and assume that that means that those spouses will in theory be permitted to settle in Britain. However, they are not happy about the procedures which might follow.
Members of the organisation wonder what procedures will be necessary before the surviving spouses could exercise their options, and how long it would take before the arrangements were completed. They wonder what the situation would be in the case of an emergency. For example, if a British husband dies leaving a widow in Hong Kong with the children at school in Britain, would the widow have an absolute right to return immediately to Britain to be with her children and to deal with the necessary arrangements? They want to know what assurance will be given that she will not in any circumstances be denied entry in such a situation, and that she would not need to rely on the discretion of the duty immigration officer.
The members want to know whether that widow would be forced into the position of having to claim that she was a tourist in order to ensure entry, thus placing herself at risk by not having disclosed her true intentions at immigration. Those are very real concerns of British citizens in Hong Kong as to the future and what will happen to their bereaved spouses.
The members of the society are not clear whether the provision relates only to spouses who hold BDTC or BN(O) passports and hence that spouses of other nationalities may be denied even this encouragement. That point is of very real concern. When Mr. Peter Lloyd in another place gave his assurance regarding widowed spouses he said that the Home Secretary,
"has therefore given an assurance that applies specifically to British citizens in Hong Kong, that the widowed spouse of a British citizen who was resident in the territory at the time of his or her death will be allowed to settle here as a concession outside the immigration rules".—[Official Report, Commons, 13/6/90; col. 396.]
That goes a long way, but not quite as far as answering the anxieties put forward by the members of the society. Furthermore, Mr. Lloyd found himself in a dilemma when he was pressed by Mr. Channon in another place regarding the case of a United Kingdom citizen having a spouse who was not Hong Kong Chinese, but may be Japanese, Filipino, Thai or some other nationality. He wanted to know whether that spouse would be covered and what assurances there were for that widow. It was to that question that Mr. Peter Lloyd said,

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"Such widowed spouses were not included in the assurance given by my right hon. and learned Friend. However, we should like to consider some of the further points that my right honourable Friend has raised".—[Col. 396.]
He did not go any nearer to clarifying that position. When asked whether the widowed spouses in question would be allowed to enter the United Kingdom for settlement or merely permitted to enter and be required later to make application for indefinite leave to remain, he said,
"I am trying to remember the exact terms of my right hon. and learned Friend's undertaking, but I believe it is for settlement".—[Col. 397.]
Later he said that he wanted to look again at this whole question. That, I think, is the end. We have not heard what the exact terms are, and we have not heard the result of his wanting to look again at this question. Indeed, Mr. Channon and his colleagues were not satisfied with the answer that he gave. Therefore, it is right that we should ask the noble Earl to outline in this debate his intentions about those spouses who have another nationality. As I say, these could be Japanese or Thai who may well have children in England, who have no more connection with the country of their birth and who have supported their husbands during their time in Hong Kong and who might wish to join their children in England. What would be their position?
It is true that there is an anomaly. Those who are offered passports under the scheme proposed by the Government will be able to bring their spouses and children into Britain, whereas UK citizens living in Hong Kong who have married citizens from other countries—those covered by this amendment—will not have the same rights.
Therefore, I hope that the Minister will be able to give a clear answer. We believe that our amendment will remove the anomaly and the worries that I have described and will bring parity. I hope that the Minister will look at the amendment seriously and will give an explanation which will satisfy that small but vulnerable group of people in Hong Kong.
Earl Ferrers: The whole basis of the British Nationality Act 1981 is that the acquisition of citizenship should involve a period of residence in this country. For the spouse of a British citizen that period of residence is three years. It is designed to ensure that the non-British spouse has some links with the United Kingdom, independent of marriage; and, there is, of course, no provision in the 1981 Act for widowed spouses.
The new clause proposed by the noble Baroness, Lady Ewart-Biggs, represents a fundamental departure from that position. It is essential to our proposals that existing nationality principles should continue to operate normally, except in relation to the 50,000 key personnel selected under the Bill and their immediate families. Nevertheless, I can understand that British expatriates in Hong Kong are anxious that their spouses might become stranded in Hong Kong in the event of their death.
In response to this legitimate worry my right honourable friend gave, during the Second Reading of
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this Bill in another place, an assurance which applies specifically to all British citizens in Hong Kong. He announced that the widowed spouse of a British citizen who was resident in the territory at the time of his or her death would be allowed to settle here as a concession under the immigration rules, as if coming here as the spouse of a living British citizen. I know that was a point of concern to the noble Baroness and I hope that reply met her approval. The concession was to apply provided that the widow or widower had remained resident in Hong Kong, had not remarried and did not have citizenship of a third country.
My right honourable friend has given further thought to the terms of that assurance. Widowed spouses having citizenship of a third country were excluded from it on the grounds that, if they found it difficult to continue living in Hong Kong, they would have somewhere else to go and would not need to seek refuge here. However, on reflection we accept the argument that, even where the spouse does have citizenship of a third country—the noble Baroness referred to Japan or Thailand—he or she might well have a genuine concern about his or her position if the British partner were to die. My right honourable friend has therefore decided to extend the assurance to widowed spouses with a third country nationality. The assurance of settlement in the United Kingdom is therefore available, provided only that the widowed spouse has not remarried and is still resident in Hong Kong. The assurance can be taken up at any time, whether before or after 1997. British citizens resident in Hong Kong need therefore feel no reason to leave the territory in order to secure their spouse's future.
The Bill has been criticised for differentiating between the spouses of the 50,000 and the spouses of other British citizens. It is perfectly true that in granting the 50,000 immediate access to British citizenship the Bill would be treating them more favourably. The justification for that is the one I set out when I gave our views on Second Reading. The Bill is an exceptional measure directed at a specific group of people who, by definition, are essential to Hong Kong but who are leaving in large numbers.
I hope that explanation will satisfy the noble Baroness and that she will feel content with the assurances given.
Baroness Ewart-Biggs: I am most grateful to the Minister. He has responded exactly to the anxieties expressed. I repeat my gratitude and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Procedure]:
Lord Mishcon Lord Mishcon moved Amendment No. 11:
Page 2, line 17, leave out ("Governor of Hong Kong") and insert ("Secretary of State for Foreign and Commonwealth Affairs").
The noble Lord said: With the leave of the Committee, I shall speak also to Amendment No. 12, and I do so extremely briefly. The purpose of the amendment is to ensure that it is not the Governor, with due respect to him, who is in charge of the

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regulations, but the Secretary of State for Foreign and Commonwealth Affairs who will be answerable to Parliament. That seems to us to be right. I beg to move.
Earl Ferrers: I am left aghast at the brevity of the noble Lord, Lord Mishcon, and in admiration of it.
It is of course right that the selection scheme should be set out in an Order in Council and that this should be submitted to Parliament by the Home Secretary. It is the scheme which will set out the principles and criteria according to which applicants will be selected. By contrast, the regulations, with which we are concerned here, will deal with the practical aspects of the administration of the nationality package, specifically with procedural matters and with fees.
The approach which the Government have proposed is to make the Governor and the Secretary of State respectively responsible for regulating those aspects of the arrangements of which they will be in charge. I hope that makes sound sense.
The Bill is constructed on the principle that the responsibility for considering applications, selecting up to 50,000 key people and recommending them and their spouses and children for British citizenship, should rest upon the shoulders of the Governor. In those circumstances, it should be for him to regulate those stages of the process. The Governor has control of the administrative machinery and the necessary local knowledge. Therefore, it is he who is best placed to prescribe the most suitable procedures.
It has been suggested that the final decision on the composition of the advisory committee should rest with the Secretary of State. I do not believe that it would be either sensible or helpful to transfer the appointment of the committee to the Secretary of State. The committee's role will be purely advisory and the person who will need its advice will be the Governor of Hong Kong. It is upon his shoulders that the responsibility for operating the selection scheme will lie. In those circumstances, it must be for him to appoint to the committee those people whom he feels can best assist him in his task. What is more, only the Governor will have the necessary local knowledge to enable him to make a sensible judgment.
I do not believe that transferring to Whitehall the appointment of the committee would improve either the quality or the impartiality of the appointment process. On the contrary, I think that Hong Kong is more likely to have confidence in the committee if it is appointed locally by the Governor rather than by a Government Minister in London.
8.30 p.m.
Lord Mishcon: The Minister is so generous that he has dealt not only with amendments that I moved but with Amendment No. 13, which I have not yet moved. In order to expedite the proceedings of the Committee I say at once that it seems a great shame that the Government are recommending that Parliament be excluded from vital matters that affect the citizens of a colony that they have looked after for so many years. It is a shame that all this is being done locally
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in Hong Kong by the Governor without Parliament being able to deal with the regulations in any way. The Governor will make them, and that is that.
As the Minister has been kind enough to deal with Amendment No. 13, which I have not yet moved, with the leave of the Committee I shall speak to it with Amendments Nos. 11 and 12 and deal later with the moving or not moving of it. Again, this committee will have a great deal of power. I believe that the estimate of the number of applicants is about 250,000. They will come before the committee, and again the Governor is given the power not just to nominate but to appoint. No questions can be asked in Parliament about the suitability or unsuitability of the committee concerned. All that is vested in the Governor. Quite obviously, Parliament disapproves because the lights have immediately become dimmed. I point out that this diminution of parliamentary power is taking place at the wish of the Government. I hope that there will be second thoughts concerning this matter. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 12 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 13:
Page 2, line 30, leave out ("appoint") and insert ("nominate").
The noble Lord said: I have already spoken to this amendment, as has the Minister. I hope that some of the words that I have uttered, quite apart from the miraculous intervention of providence, will enable the Minister to think again about nomination by the Governor and not appointment. I beg to move.
Lord Sharp of Grimsdyke: We spent a considerable time earlier deciding whether or not to delete "shall" and insert "may". In that respect we were talking about the allocation of powers and responsibilities between the Governor of Hong Kong and the Secretary of State. If the Government are not persuaded by the eloquent pleadings of the noble Lord, Lord Mishcon, supported in part in the contribution made by my noble friend Lord Renton, and if "shall" stands part of Clause 1, we should spend a little time discussing the machinery by which the Governor of Hong Kong is going to exercise his powers and responsibilities.
The noble Lord, Lord Howie of Troon, made a trenchant contribution about the consultants' needs and responsibilities in terms of keeping Hong Kong going. He made the point that while the Governor may be the best judge of what is in the best interests of Hong Kong, he is not necessarily the best judge of what is in the best interests of Hong Kong and Britain. In that regard I wish to make a narrow point about the composition of the committee. At Second Reading I expressed my concern about the operation of the points system. I heartily concur with my noble friend Lord Derwent in his comments. The operation of that scheme may be inimical to the interests of British industry and commerce.
I suggest to the Committee that my concern would be alleviated somewhat if the UK senior trade commissioner was appointed to the committee. He is

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responsible for the protection, promotion and advancement of British trade and commerce and industrial interests. He has ambassadorial status and he is an ex-Foreign Office man. He has been appointed by the Department of Trade and Industry to represent those trade, industrial and commercial interests. I urge the Secretary of State to make strong representations to the Governor of Hong Kong that, in the general interests of interpreting what is in the best interests of British companies, however defined, and other related matters the appointment of the senior trade commissioner be considered.
Earl Ferrers: I am enormously excited that the noble Lord, Lord Mishcon, should think that I spoke to Amendment No. 13 at the same time as speaking to Amendment No. 11. I try to prepare myself with a certain amount of rigidity towards the matters that I have to speak to. I also have to prepare myself for all the vicissitudes that I am likely to be subjected to by the noble Lord. I can assure him that it was not part of my intention to divest myself of all my thoughts on Amendment No. 13 when dealing with Amendment No. 11. The fact is that, had I not done so, I should be bound to tell the noble Lord that essentially the same objection applies to Amendment No. 13 as I gave to Amendment No. 11. It is that the decision should be taken locally by the Governor because he has the best knowledge of all the circumstances in Hong Kong and of local personalities.
My noble friend Lord Sharp asked whether the Governor of Hong Kong would take it on himself to include the senior trade commissioner. I must tell him that it is up to the Governor to appoint those whom he feels are most suitable to advise him on these matters. No doubt he will take note of what my noble friend has said. I cannot go further than that and give my not le friend any suggestion that the Governor will or will not follow his proposal.
Lord Mishcon: With his admirable and usual ingenuity, the Minister paraphrased what he said under Amendment No. 11 with eloquence and clarity when he dealt with Amendment No. 13. I have failed to convince him that Parliament should play some part in this matter and that there should be ministerial responsibility instead of placing it all in Hong Kong. I seem to have failed in that effort. At this time it is inappropriate to do anything other than ask leave to withdraw the amendment.
Amendment, by leave, withdrawn
Lord Mishcon Lord Mishcon moved Amendment No. 14:
Page 2, line 41, at end insert:
("(5) Regulations made under this section shall be subject to approval by resolution of each House of Parliament.").
The noble Lord said: I rise with the same objective in mind that I had when moving Amendments Nos. 11 to 13. It is at least to give some residuary power to Parliament so that the regulations can be formally placed before both Houses and approved. If Parliament feels that they are not fair in any respect then at least the parliamentary voice will have been heard. I beg to move.
Earl Ferrers: The noble Lord, Lord Mishcon, was kind enough not to say that I had spoken to this amendment as well. Had he done so I should have been bound to tell him that, in response to Amendment No. 11, the Committee endorsed the Government's view that it would be inappropriate for the regulations governing the procedures in Hong Kong in relation to applications and to the selection scheme to be made by the Secretary of State. These must and will be local regulations made by the Governor. It follows from that that it would be inappropriate for the regulations to be laid before Parliament. There would be no mechanism for it. The Governor would have no locus to enable him to lay the regulations before us. While I can understand the noble Lord's desire to have parliamentary approval, this matter is the responsibility of the Governor.
Lord Mishcon: At least I have advanced in the sense that the point I made is understandable. That indeed is progress. It does not really mean that I think that the Government accept the amendment. In the circumstances, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clauses 4 and 5 agreed to.
Clause 6 [Short title, savings, commencement and extent]:
On Question, Whether Clause 6 shall stand part of the Bill?
Lord Mishcon: In the course of moving Amendment No. 1 I pointed out what appeared to be a contrast, to say the least—if not an inconsistency—between Clause 1 and Clause 6. Clause 1 says that the Governor recommends and the Secretary of State has to accept—the mandatory word is now in. The only exceptions to that are made by Clause 1.
Clause 6 differs from that in that it says that the Secretary of State has the right not to register any of the families recommended by the Governor if the Secretary of State takes a certain view about the applicant's character or the character of a member of the applicant's family. I shall not argue the point now, and the Committee would not expect me to do so. I merely draw attention again to what seems to me to be an inconsistency. All I ask of the Minister is that he does not forget the point that I have raised. It may well be that I shall receive a letter from him with reasons as to why I am wrong. If I happen to be right he will have an opportunity at Third Reading to put the situation right.
Earl Ferrers: I find 3it difficult to forget any points which the noble Lord makes. I shall certainly see that the point about which he is concerned is considered, as I said I would do in regard to Clause 1. I shall, if I may, take up his suggestion and write to him about it.
Lord Mishcon: I am much obliged.
Clause 6 agreed to.
8.45 p.m.
Schedule 1 [Selection Schemes]:
Lord Monkswell Lord Monkswell moved Amendment No. 15:
Page 4, line 41, leave out paragraph (c).
The noble Lord said: It is interesting that at this stage of the evening's debate the amendment assumes greater importance than it would otherwise have through the Government not accepting Amendments Nos. 11 to 14. By not accepting those amendments the Government have effectively surrendered the Secretary of State's powers to the Governor, who is not answerable to Parliament in the way that the Secretary of State is. On that basis it behoves us to be very careful about the authority we devolve to the Governor.
In moving the amendment I am attempting to take away from the Governor a certain amount of discretion with regard to his determination of which persons should be recommended for British citizenship. As we heard in the first debate today on whether the word used should be "shall" or "may", the Secretary of State is by virtue of the Bill required to confer British citizenship on. whoever the Governor recommends. Given that circumstance it becomes very important for the decision of the Governor to be completely open and above board and beyond question. We have also heard that the discretion of the Governor cannot be challenged in the sense that judicial review will not be available regarding a discretionary decision.
The argument against this amendment will concern how a decision will be made between two or more applicants who have the same points total. There are three possibilities. First, the situation would not arise if the scheme were so devised that points allocated did not produce a tie. It should not be beyond the wit of man, of computers or of a committee—a committee would be the perfect instrument to do it—to devise a scheme which did not produce a tie. Another option is to provide what I would describe as random selection. In effect, one would put all the names into a hat or box and draw out the requisite number of names. The first names out of the box would achieve the result.
The worst possibility is the one with which we are faced by the Bill as it is drafted. I refer to the Governor having to make the decision on some criterion which is not written down. Such a scheme is bound to be almost by definition an arbitrary decision which is not capable of rational explanation and, what is worse, is capable of misinterpretation. Some Members of the Committee will remember that at Second Reading I raised the possibility of monetary arrangements being involved in the selection system. That would be a very unfortunate possibility for people to associate with the selection of these 50,000 heads of household. I beg to move.
Lord Glenarthur: I have listened to the noble Lord, Lord Monkswell, and I studied what he said at Second Reading. What I fail to understand is his assertion that in some way others would be better suited and better fitted than the Governor to decide between two people who might have the same number of points. To
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suggest that somebody over here would be more suited is the same argument as was so well answered by my noble friend Lord Ferrers with regard to the importance of the Governor knowing his own area better than anyone else.
To suggest, as the noble Lord has said again tonight, that in some way a form of bribery is even practicable in these circumstances is outrageous. What he says impinges not only on the Governor of Hong Kong but on an extremely able body of people who serve the Governor. It is a monstrous allegation. I hope that the noble Lord will think carefully before going further in that way.
Lord Mishcon: I Was not in the Chamber when the noble Lord, Lord Monkswell, spoke at Second Reading. However, I hope that I know him well enough to know that he did not wish to give offence to anyone. If he meant literally what he said I do not think that he did—I should like to dissociate the Front Bench of this party from any such suggestion.
Earl Ferrers: I am most grateful to the noble Lord, Lord Mishcon, for making that intervention. Those of us who heard the speech of the noble Lord, Lord Monkswell, on Second Reading were frankly horrified by what was suggested. Although the noble Lord has come to his rescue as best he can in saying that the noble Lord did not really mean what he said, all I can say is that to those of us who heard his speech it sounded very much as if he did mean what he said. However, if he did not mean what he said he would have been better advised not to have spoken.
I was surprised that the noble Lord, Lord Monkswell, actually returned to the subject, although in a more modest way, this evening. He referred to "monetary transactions". My noble friend Lord Glenarthur is quite right to suggest that if there is any question of bribery being insinuated in any of these considerations, it is indeed a monstrous suggestion. I hope that the noble Lord will, if I may put it this way, get that out of his system as quickly as possible.
The noble Lord suggested two changes. He moved Amendment No. 15, but I presume that he was speaking also to Amendment No. 16 as they are grouped together. His proposed changes to the Bill would affect the form of the selection scheme and would take away from the Governor, as he put it, the discretion as to who should have citizenship.
I can well understand the concern which some people may feel about the Governor having the power to choose between two equally qualified candidates. However, I believe that it is justified as an essential power of last resort. The intention is that in general the points scheme will pick out those applicants with the best claim, on the basis of the criteria to be approved by Parliament; and the special circumstances points, which will be awarded after taking into account the advice of the steering group, will help to distinguish between otherwise equally qualified candidates.
But there may, nevertheless, be circumstances when more than one candidate has secured a particular points total, and the number of places available is

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insufficient. In these cases, either available places must be left unfilled, or someone must choose who will fill them. In my view, it is in the best interests of Hong Kong that such places should not be wasted. Therefore, a choice should be made, and I think that the Governor, who is in the best position to take account of local circumstances, is the right person to make the choice. He will, if he wishes, be able to call upon the advice of the steering group before exercising this discretion.
The noble Lord, Lord Monkswell, is concerned about the power, in subparagraph (2), for the Governor to recommend people on the basis of their outstanding contribution to Hong Kong's economy. That Provision is directed to the key entrepreneurs section of the scheme described in the Explanatory Memorandum.
The key entrepreneurs section covers just 1 per cent. of the 50,000 places available, and is intended for those businessmen who have, over the years, built up some of Hong Kong's most successful commercial enterprises. Large numbers of people depend on them for employment, and there is no doubt that if such key businessmen left Hong Kong, their departure would damage confidence.
It therefore seems entirely fitting that a small proportion of places should be reserved for this category. Indeed, it is unthinkable that a scheme which is designed to select key people in Hong Kong should not specifically include them.
Lord Monkswell: I should like to thank all noble Lords who have spoken in the debate, some in support of my proposals and others seeking clarification. By my remarks, and the amendments tabled in my name, I do not intend to cast any aspersions upon the character or the position of the Governor of Hong Kong or members of the Civil Service. That was not my intention. However, it is to protect their good name and position that I wish to take away the discretion which may bring them into a situation where other people may think that they may be unduly influenced by money or bribery. By keeping the legislation as it is, we would be putting them in an invidious situation. I see no reason why we should do so.
Perhaps the Minister can give me some explanation as to why a lottery system is not an acceptable method of determining between a small number of applicants who may have the same number of points, as opposed to using the discretion of the Governor. I do not think he answered that point. I think that it would be useful for us to know the Government's view on the matter.
I turn now to deal with Amendment No. 16. In regard to the selection of entrepreneurs to which the noble Earl referred, I fail to see why the recommendation must be at the discretion of the Governor and why it cannot be determined by some scheme or arrangement.
Earl Ferrers: The noble Lord, Lord Monkswell, was concerned about the situation where a number of people had achieved the same number of points. He suggested that, when the Governor had to choose who
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should be acceptable, perhaps a lottery system could be used. Whatever system one devises, there is always the possibility that there will be more than the correct number of people who are theoretically available for acceptance to the scheme.
On Second Reading the noble Lord, Lord Mishcon, asked what would happen if there were 50,001 applicants who were acceptable. In such a situation someone has to choose. One can either use the rather disagreeable suggestion made by the noble Lord, Lord Monkswell, whereby you have a lottery and simply spin the wheel, or one can consult the person who is more likely to be the most knowledgeable on the matter—namely, the Governor—who will then be able to say, "From all those who are equally qualified I must make a decision on who is the most qualified". In the end, it comes down to a personal decision. Of course the system is not infallible and wrong decisions may be made. However, a wrong decision made in that way is more likely to be right than a decision made by way of a lottery.
Lord Monkswell: I thank the Minister for his reply. It was not terribly satisfactory. However, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 16 not moved.]
Schedule 1 agreed to.
Schedule 2 [Registration of Spouses and Minor Children]:
[Amendments Nos. 17 and 18 not moved.]
Lord Monkswell Lord Monkswell moved Amendment No. 19:
Page 5, leave out lines 6 and 7.
The noble Lord said: Again we have a situation where there is a discretion given to the Governor to recommend whether a spouse or a child of someone who has obtained British citizenship by virtue of the scheme should or should not become a British citizen. It seems to me to be rather an unsatisfactory arrangement when, having gone through the procedures of the scheme, someone has obtained the qualifications to become a British citizen and the Governor quite arbitrarily—because there are no requirements upon him to seek guidance as to how he should reach such a decision—may or may not allow the spouse or the child to become a British citizen alongside the person who is a registered British citizen.
We come under enough criticism in this country in our immigration procedures for separating families. Therefore, to allow the possibility for such a situation to arise under the provisions of the Bill, for whatever reason—and the Governor is not given any advice as to how he should reach his decision—is quite unsatisfactory.
I shall speak also to Amendment No. 20. Effectively it is a continuation of the Governor's power to withhold British citizenship from spouses or children. I hope that the Government will accept the amendment on the basis that it must fly in the face of

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our human rights obligations to give the Governor of one of our colonies the power effectively to separate a family.
9 p.m.
Earl Ferrers: The noble Lord, Lord Monkswell, says that he hopes that the Government will accept the amendment because it goes against the human rights convention. I do not advise the Committee to accept the amendment for reasons which I shall give. The amendments seek to make acquisition of British citizenship by spouses and children automatic rather than conditional on a recommendation by the Governor. The amendment would require the Home Secretary to register spouses and children whether or not they wish for or had applied for it. That is undesirable. Any spouses and existing children should be given a choice.
I should make it clear that spouses and children will normally be recommended as a matter of course. The requirement for them to be recommended, however, ensures that their applications will initially be processed by the Hong Kong Government who will be in a much better position than the small team of United Kingdom officials whom we expect to establish in the territory to undertake the task of carrying out the relevant checks, ensuring that the information provided is correct and confirming whether the applicants are eligible for registration in accordance with the Bill's requirements.
The requirement for a recommendation from the Governor will also ensure that he can check whether applicants meet the good character requirements. The amendments are also inappropriate because they remove the 1997 cut-off date. Under the amendment, spouses would continue to be eligible long after the intended life of the assurance package had passed. For example, a principal beneficiary who contracted a marriage well into the next century, having remained settled in Hong Kong, would be able to transmit citizenship to the new spouse. In the Government's view, spouses acquired after 1997 should be subject to the normal rules governing the acquisition of citizenship by spouses as set out in the 1981 Act.
Lord Monkswell: On the basis that we shall not get far with the Government and the Bill, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.]
Lord Monkswell Lord Monkswell moved Amendment No. 21:
Page 5, line 12, leave out from ("above") to end of line 14.
The noble Lord said: The amendment seeks to delete from the Bill the restriction that it appears to place on the ability of a British citizen to marry the person of his or her choice. As I understand it, the Bill provides that someone who is registered as a British citizen under the procedures of the Bill will not be permitted to marry someone unless he or she is resident and settled in Hong Kong. That flies in the face of the established situation as I understand it: that a British citizen is free to marry whomsoever he or she chooses. I am not a legal expert, but as far as
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I am aware the Government have not yet seen fit to restrict the ability of a British citizen to marry whomsoever he or she wishes.
The Bill appears to place such a restriction on a British citizen. If the Minister can assure me that my interpretation of the Bill is wrong, I shall be happy to withdraw the amendment. On the basis that that is my understanding, I feel that the Bill is wrong. I hope that most of the Committee thinks that it is wrong. I beg to move.
Earl Ferrers: The amendment seeks to remove the proviso under which a spouse acquired after the registration of the principal beneficiary will be eligible under the Bill only if the principal beneficiary is settled in Hong Kong at the time of the marriage.
The justification for that proviso is self-evident. The privilege of immediate British citizenship for a spouse is justified only by the Bill's objective of anchoring principal beneficiaries in the territory.
Clearly, in those cases (which we believe will be few) where the recipient of an assurance emigrates from Hong Kong, contrary to our intention in granting citizenship, it follows that there can no longer be any justification for the spouse of a subsequent marriage to be registered under the Bill. In those circumstances, it must be right that such a spouse should have to meet the normal requirements for the acquisition of British citizenship, as set out in the 1981 Act.
Lord Monkswell: I thank the Minister for his reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Remaining schedule agreed to.
House resumed: Bill reported without amendment.
Earl Ferrers: My Lords, I beg to move that this Report be now received.
Moved, That the Report be now received.—(Earl Ferrers.)
Lord Mishcon: My Lords, it would be appropriate to say a few words in regard to this Motion.
We all appreciate the courtesy with which the Minister and the noble Lord, Lord Brabazon of Tara, when he dealt with amendments, treated us during Committee stage. They fully realise, however, that courtesy is not sufficient on such a Bill. Important points have been raised at this stage. If I repeat myself, I apologise, but it is necessary. I hope that because the points are so important constitutionally and for the sake of our name in Hong Kong, the debate will be seriously considered by the Minister and his right honourable friend the Secretary of State. Perhaps they will consider them with a view to seeing that there is a completely open mind on the important matters that have been raised, and that possibly we shall receive some benefit from this stage when we reach Third Reading.
Earl Ferrers: My 3Lords, I am grateful to the noble Lord, Lord Mishcon, for making those remarks and for doing so as briefly as possible. I greatly appreciate the co-operation which he has given over the Bill. I realise that some aspects are fairly unacceptable to

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Her Majesty's Opposition for various reasons, yet the noble Lord has seen that the progress of the Bill has been as equable as possible.
The noble Lord, Lord Mishcon, is the first to realise that there is a problem in Hong Kong which we did not wish to happen. We had to take steps to alleviate it. Whatever steps we took would not have been acceptable to everyone. We took those steps that we thought were right and that would command the greatest acceptance not only in Hong Kong but also in this country.
As we have gone through the Committee stage today, various aspects have not found favour with the noble Lord, Lord Mishcon. He has been kind enough to express reservations but not in an offensive or
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unduly penetrating way. I have told him that I shall consider the matters that he raised with as open a mind as possible. He will realise that when a whole department of government has been considering matters strenuously over the past six months to try to reach the right conclusions, it is difficult to contemplate that possibly all the conclusions are wrong. Despite that, I shall keep as open a mind as I can in considering the points which I realise that the noble Lord, Lord Mishcon, and others have made seriously.
On Question, Motion agreed to: Report received.
House adjourned at eleven minutes past nine o'clock.