§ ("In the 1971 Act, after section 25(2), insert—
§ "(2A) If any person ("the employer") is employing or has within the preceding 3 months employed any person who is an illegal entrant or a person who has committed an offence under section 24(1)(b) or (c), an immigration officer may serve a notice on the employer, in accordance with regulations made by the Secretary of State.
§ (2B) Any employer who, within 12 months of being served with a notice under subsection (2A), employs any person who is an illegal entrant or a person who has committed an offence under section 24(1)(b) or (c), shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months or with both.
§ (2C) It shall be a defence to proceedings under subsection (2B) above to prove that in respect of any person employed after service of the notice under subsection (2A), before the employment began the employer made such enquiries or inspected such documents as were reasonable in the circumstances to satisfy himself that to employ the person would not contravene subsection (2B).
§ (2D) Where an offence under subsection (2B) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to the neglect on the part of—
- (a) any director, manager, secretary or other similar officer of the body corporate; or
- (b) any person who was purporting to act in any such capacity,
§ (2E) Where the affairs of a body corporate are managed by its members, subsection (2D) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
§ (2F) In this section, "employ" means employ under a contract of service or apprenticeship, whether express or implied and (if it is express) whether it is oral or written, and "employment" shall he construed accordingly."").129
§ The noble Lord said: This amendment, which is grouped with Clause 18 stand part and Amendment No. 221, provides the Government with a way out of the dilemma in which they find themselves. On Second Reading I referred to what the Labour Party had said while in opposition; namely, that this Bill had implications which constituted a dangerous and impractical burden on employers and that it created an incentive not to hire black staff or people with foreign-sounding names. I referred also to the Labour Party's pledge to repeal a particular provision.
If the Minister is prepared to interrupt me and say that he is prepared to consider this amendment, I can speak briefly; otherwise I promise that I may have to speak for much longer. I beg to move.
§ 10.45 p.m.
§ Lord Falconer of Thoroton
As I am terrorised by that threat, I say at the outset and without commitment that we should like to take away Amendment No. 33A in order to take a little more time to consider it properly. We received it only on Friday and we need a little longer to weigh up its merits. I shall return to that matter in a moment. I do not think that I need to summarise the issues as that has been excellently done already.
As part of our review of Section 8 of the previous Act, we have been concerned by reports of the Commission for Racial Equality that some employers may be making more checks than the legislation requires and that the legislation may be being used by some employers as an excuse to discriminate. We have had to face up to that reality and tackle it.
As regards the amendment proposed by the noble Lord, we have also discussed with the CRE and others whether it is possible to find better ways to achieve the difficult balance between tackling illegal employment effectively and ensuring that employers do not discriminate. The noble Lord has put forward an alternative solution which deserves to be given serious and fuller consideration. I understand that it has the approval of the CRE, the CBI, the Federation of Small Businesses and the TUC. It therefore represents a serious attempt to provide an alternative provision.
I do not think that it is right for me to go through the detail of the measure. We have some questions on it, but our initial view is that this is an interesting proposal although it may have some potential difficulties. We shall need to think about it and discuss matters with those organisations which advised the noble Lord on the amendment. We undertake to consider Amendment No. 33A without commitment in consultation with interested parties. In the light of the outcome of those discussions, there will of course be an opportunity for the Chamber to return to this matter on Report. On that basis, I hope that the noble Lord will agree to withdraw his amendment and allow Clause 18 to be accepted.
§ Lord Dholakia
I am grateful to the Minister. He is even kinder than the noble Lord, Lord Williams! I understood the Minister's explanation. I beg leave to withdraw the amendment.
§ Earl Russell
I too am extremely grateful to the Minister for those comments. However, have a further 130 question. Will he consult with his noble friend Lady Hollis of Heigham about the defects in the national insurance computer? I remember that there was a great deal of discussion in 1996 about the difficulty of obtaining national insurance numbers. I believe that last week's report of the Public Accounts Committee has indicated that that difficulty is now much greater than it was.
§ Amendment, by leave, withdrawn.
§ Clause 18 agreed to.
§ Clause 19 [Monitoring refusals of entry clearance]:
§ Lord Cope of Berkeley moved Amendment No. 34:
Page 14, line 16, at end insert ("; and
(b) the imposition of penalties and the power of seizure in accordance with sections 25 and 29").
§ The noble Lord said: The intention of this amendment is to provide Parliament with a progress report on the imposition and levying of fines on carriers who are held accountable for the arrival of clandestine entrants. It also seeks to ensure that the monitor who is to monitor refusals of entry where there is no right of appeal can also monitor the imposition of penalties under Part II of the Bill. I hope that this amendment will appeal to the Committee. It is obviously not a central matter, but it forms part of our keeping track of how this difficult and complicated legislation works. It is a matter in which this Chamber takes a great interest. I beg to move.
§ Baroness Williams of Crosby
The amendment enables us to ask a small number of questions about the position of the proposed monitor. We will get through the Bill extremely speedily if Ministers are as gracious over all the future amendments we propose to move as they have been over my noble friend's amendment, for which we are very grateful indeed.
Perhaps I may ask something about the powers, if any, that the monitor is expected to have in addition to those proposed in the amendment. In particular, is there any prospect of the scope of the operations of the monitor being extended beyond seizure, which is mentioned in the noble Lord's amendment, to take in some other areas where a report of that kind would be extremely helpful? For example, it would be very useful to have the monitor look at issues that may arise over the return of people to third countries and matters of that kind. Perhaps the Minister will say a little bit more about the monitor and whether the monitor will be independent, and seen to be independent, in his activities.
§ Lord Williams of Mostyn
I am grateful for the noble Lord's explanation of Amendment No. 34. I think I encapsulate his points fairly by saying that he wants the independent monitor to have a much wider role, biting on Clauses 25 to 30, relating to seizures.
Where the power to detain has been used under those clauses, then under Clause 30 the owner and so forth of a transporter that has been detained can apply to the courts for its release. That is the mechanism provided for remedy if there has been an inappropriate, unlawful 131 or wrong detention. The role of the independent monitor is quite different. That role is to check the standards being applied to entry clearance refusal decisions, where there is no right of appeal. So that must include—rightly, I believe—looking at the overall quality of the decision making, with particular reference to consistency, fairness and the procedures leading to the decision to refuse.
That role was devised solely in the context of the operation of the entry clearance system. It would not be right to extend the functions to cover the very different issues of civil penalty and the detention of vehicles pending payment of that penalty.
We have no plans to extend the scope of the monitor in the Bill. We expect that he or she may well want to comment on the bond scheme and we expect the monitor to take a wide view of his or her responsibilities, but not relating to Clauses 25 to 30, as the noble Lord, Lord Cope of Berkeley, invited me to do. He or she will have his or her hands quite full enough dealing with the matters I have specified.
§ Lord Cope of Berkeley
I am grateful to the Minister for setting the matter out at some length. I shall reflect on it. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Falconer of Thoroton moved Amendment No. 35:
§ Page 14, line 24, leave out subsection (6).
§ The noble and learned Lord said: In moving Amendment No. 35 I shall speak also to Amendments Nos. 138, 139, 173 and 174. These are all straightforward amendments to remove from the Bill unnecessary statutory provision for the Secretary of State to obtain the consent of the Treasury for the remuneration of persons appointed to various posts provided for in the Bill. It does not mean that the Home Secretary can pay what he likes to people appointed to these posts; his officials will consult the Treasury in the usual way about the remuneration attached to public appointments to ensure that it is consistent with overall government policy. I commend the amendments and beg to move.
§ Lord Cope of Berkeley
I used to be Minister at the Treasury, and I was deeply shocked to see these five amendments on the Marshalled List. At an earlier stage in my political career, I was Lord Commissioner at the Treasury. As such, I attended the only meeting that there has ever been of the commissioners in the past 70 years. It was not a bad glass of sherry!
It seems remarkable that we should be told by the noble and learned Lord the Minister that the Treasury will approve these matters, but that it is not necessary to include that in the legislation. To my recollection, that has never happened before. Subsections stating that the Treasury's approval is required are littered throughout the statute book in practically every statute I have ever seen. The Treasury must presumably have understood that this provision would be removed from 132 the Bill. I hope that the noble and learned Lord can confirm to me that the Treasury approves of these five amendments. The Minister is nodding to suggest that it does. In that case, I shall not pursue my objection to them.
§ Earl Russell
The noble and learned Lord, Lord Simon of Glaisdale, has pursued the deletion of such clauses with the endless patience for which he is renowned. In the absence of the noble and learned Lord, perhaps I may congratulate the Minister on his persuasive powers with the Treasury and recommend him for the Simon of Glaisdale medal for reducing the prolixity of the statute book.
§ On Question, amendment agreed to.
§ Clause 19, as amended, agreed to.
§ Clause 20 [Duty to report suspicious marriages]:
§ Viscount Bridgeman moved Amendment No. 36:
§ Page 15, line 5, at end insert ("if possible before the marriage is solemnized and otherwise within seven days").
§ The noble Viscount said: With the leave of the Committee, I shall speak also to Amendments Nos. 37 and 38.
Clause 20(3) provides that a registrar must report to the Secretary of State a suspicion that a marriage will be a sham marriage,
in such form and manner, and … within such period, as may be prescribed by regulations".
§ The power which is conferred on the Registrar General is not subject to parliamentary control. In its report, the Delegated Powers and Deregulation Committee accepted the case for regulations making procedural provisions for the notification of suspected sham marriages, but not that the Registrar General should have the power to make regulations prescribing a time limit.
§ These amendments remove the power in so far as it relates to the time limit, and place on the face of the Bill a requirement that a registrar should report any suspicion "within seven days", as in Amendment No. 36, or "within a reasonable time", as in Amendment No. 37. I beg to move.
§ Lord Williams of Mostyn
I think I am able to be helpful—which is a great shock. I appreciate the reasoning behind these amendments and the way in which the noble Viscount has put them forward. We had intended that there would be regulations to require registrars to make reports within two working days.
There is much to be said for the amendments in principle. They are an alternative, as the noble Viscount pointed out. We believe that there is more drafting work to be done. Seven days is probably too long a period, but registrars ought to prepare and send reports while the facts of each case are fresh in their minds. "Within a reasonable time" may be acceptable. We shall consider that before bringing forward an amendment. "Forthwith", as suggested by the committee, may be an option. I shall bring forward an amendment on Report, if that is agreeable to Members of the Committee. We shall also wish to ensure that the power to make 133 regulations retains the provision to set out the form and manner of reports while removing the timing provision. I am obliged to the noble Viscount for raising the matter. I hope that my response has been helpful.
§ Viscount Bridgeman
Clearly, I should have intervened much earlier! I am grateful to the Minister for his very helpful reply. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 37 and 38 not moved.]
§ 11 p.m.
§ Baroness Williams of Crosby moved Amendment No. 39:
§ Page 15, line 8, at end insert ("and must at the same time send a copy of this report to the parties to the proposed marriage").
§ The noble Baroness said: I hope that at this hour of the night in moving Amendment No. 39 I shall be as lucky as the noble Viscount. Under Amendment No. 39, when a registrar provides information to the Secretary of State as required under Clause 20 he is required to send a copy of that report to the parties to the proposed marriage. The amendment is based on the proposition that it is only right and proper that those who are subject to what may be a substantial constraint should be made aware of the nature of the argument that is made against them and should be given the opportunity to refute it, if they can, and to advance facts that may allow the Secretary of State to think again.
§ We are profoundly concerned that without such a provision, the terms of the European convention, in particular those relating to the right to privacy and to marriage, may be breached in circumstances in which there is, or may well be, a perfectly innocent explanation of what the registrar suspects. Registrars are not qualified to make easy judgments of this kind. Up to now, their functions have been very different. If Members of the Committee look at the advice that is being given to registrars—I have had only a brief opportunity to do so—they will see that it suggests that they will have quite a long time to cross-question the couples who come before them. On the face of it, that does not appear likely. Registrars are also expected to ask questions which it will be very difficult for them to put.
§ In particular, I am troubled that the other aspects of the Government's policies, in particular the attempt to explain to couples who are about to marry the importance of understanding the significance of what they are undertaking, including responsibility for any future children, are not compatible with the semi-investigative role now being thrust on registrars. I ask the Government to think very seriously about whether registrars of marriage are the appropriate people for this kind of operation.
§ To some it may appear quite right that there should be an opportunity to investigate marriages which it is suspected are marriages of convenience. Many of us are aware that such marriages occur. However, careful consideration must also be given to whether it is more appropriate for immigration officers to question that 134 relationship at the point at which the married partner who is not a British national asks for a change in status to recognise the fact that he or she is the spouse of a British citizen. That seems to be a good opportunity—which already exists—to go into such matters; and it appears to be much more a task for an immigration officer than a registrar.
§ We are also concerned about the possibility of arguments under the convention with regard to discrimination on religious grounds. as Anglican ceremonies have been exempted from the scope of Clause 20. I have every possible respect for the Anglican Church, but I can well understand that Roman Catholics, members of the Free Church, Moslems or Hindus may well object to that provision on the basis that their marriage ceremonies are just as solemn as those of the Church of England. Therefore, it could be argued that this provision has a certain discriminatory aspect to it.
§ We argue that the provision of the report to the married couple will give them an opportunity to make their case along the lines that I have suggested. More broadly, I point out—I suspect that my noble friend will have a little more to say on this matter on clause stand part—that it appears to be extremely unwise to place this responsibility on registrars because it conflicts with their other functions. At the end of the day, it is an unwarranted extension into the area of marriage by someone who is connected officially with the ceremony of marriage, given that an immigration officer can make such inquiries.
§ I conclude with a brief remark. I am married to a non—British citizen. I refer to the assiduity with which the British and American authorities—the tax authorities and heaven knows who else-pursue us to discover whether we are still married (having been married for 11 years), whether we are still cohabiting, and whether we are still behaving properly towards one another. Immigration authorities are well qualified to go into those details. After a while one begins to suspect that if one goes away for an evening to a conference the immigration authority of one country or another will immediately suggest that one has become separated, and announce that one is no longer entitled, in my case, to a green card, and in my husband's case to permission to stay; and therefore we suspect that at any moment the roof may fall in. I beg to move.
§ Lord Alton of Liverpool
The Minister was able to respond in positive terms to the noble Viscount, Lord Bridgeman. I was happy to add my name to Amendments Nos. 36 and 38. Although I had not added my name to the amendment tabled by the noble Baroness, Lady Williams of Crosby, Amendment No. 39, I am in equal sympathy with the sentiments she expressed.
I wish to underline some of those points which I believe should be considered by the Government between now and Report stage. I should like to hear more from the Government about what they think is a sham marriage. Many of us remember the endless arguments about the primary purpose rule. We were troubled at the time about how others perceived a 135 marriage compared with those who were entering into the marriage. Different people have different views in a country where the divorce rate is about 44 per cent, and fast approaching the American norm where half of all marriages end in divorce. People today have differing views about what a marriage entails. We live in a more secular environment. We need to have clearer guidance from the Government as to what they mean by a sham marriage.
I agree with the noble Baroness, Lady Williams, about the use of registrars, rather like lorry drivers or airline pilots, to enforce immigration law. It is undesirable to have those secondary figures being given additional responsibilities. I wonder what the registrars said about it if they were consulted prior to the legislation being laid before us.
The noble Baroness is right. It is offensive to Moslems, Hindus and Christians from other denominations, who enter what they believe to be valid marriages—to some the only marriage for the remainder of their lives—to be told that the person who marries them will not ask those questions because they have not been recognised as an exempt category. An element of discrimination is being introduced into the Bill. What advice have the Government been given about the claims which could be made against them under the anti-discriminatory legislation for having decided to introduce marriage in those terms?
I refer back to the proceedings before the 1996 legislation. Constituents gave me examples of how their love letters had been aired at tribunals and immigration appeal hearings in order to test the nature of their relationship. It is deeply offensive that people's personal relationships should be looked at in those terms. I fully understand that there will be people who will try to circumvent immigration rules for many reasons. But to go through every person's reasons for getting married, and constantly to have them in fear that because someone casts doubt on the reasons for the marriage in the first place, their reasons for being here may be invalidated is iniquitous.
Furthermore, if two people's married relationship breaks down, it builds into the equation another reason why someone can pursue subsequently, in perhaps a vindictive way, the other marriage partner in that broken marriage by saying that the primary purpose was not one of a lasting intent but simply to obtain citizenship.
Those questions should be explored properly before we proceed with the incorporation of this clause into the Bill. Although I realise that there will not be a vote on it in Committee today, I hope that the Government will give the matter more consideration before we agree to incorporate the provision at Report stage.
§ Earl Russell
I have only one reservation about my noble friend's amendment: I have not yet given up hope of living to see a freedom of information Act make it unnecessary.
The statement of damaging reflections about other people is something for which there should be a degree of accountability. Many people, freed from that 136 accountability, are capable of indulging in flights of fancy at quite considerable length. In this context, the question arises: will any derogatory reflections about a couple or either member of a couple submitted under this clause enjoy either absolute or qualified privilege in law in the event of possible proceedings for libel?
It also seems that the clause may create a conflict of influence for registrars. They have a responsibility to the couple who are getting married at what one believes is likely to be, for many, an important and solemn moment. That may conflict with the responsibility that the clause confers on registrars to cast suspicion on the motives for undertaking a ceremony. That, in turn, bears on the difficulties that the Government have got themselves into regarding the Church of England.
I would have some sympathy with those difficulties if I were not starting from the premise that the Government should not have begun here in the first place. Parish priests in the Church of England were ex officio registrars long before there were civil registrars. For them, as for any Christian clergy, marriage is a sacrament. Therefore, they have particular spiritual responsibilities towards those with whom they are dealing. I believe that it is perfectly possible that, when faced with their sacramental duties or a duty to the state about which they may have—at best—mixed feelings, Church of England clergy might take the line that their sacramental duty comes first.
I understand why the Government felt that they could not ask Church of England clergy to undertake these duties. However, if they do not ask the clergy to undertake these duties, they are committing discrimination that is plainly contrary to Article 14 of the convention when taken in conjunction with Article 8—that is, the discrimination article in conjunction with the right to family life—and Article 12, the right to marry. So the Government lose either way. They really should not have started from this point in the first place.
§ Lord Avebury
The noble Lord, Lord Alton, asked what was a sham marriage. It is defined in subsection (5) as a marriage that is entered into by a personwho is neither a British citizen nor a national of an EEA State … for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules".The registrar must report evidence—or, presumably, suspicion—that a person is in breach of the immigration law or immigration rules or intends to be in breach of them.
Does that not presuppose that the registrar knows what is in the immigration law and the immigration rules? Must not the registrar be an expert in that law and those rules in order to report any potential breach of them? How is he to know that he must report? The Explanatory Notes on clauses—which have been helpfully circulated by the Government—state that Clause 20 does notconfer powers on registrars or others to question couples about their immigration status".137 Nor does the clause confer powers on registrars to question the parties to the marriage about any other aspect of their conduct under the immigration law and immigration rules. I think that this clause places an impossible duty on registrars.
§ 11.15 p.m.
§ Lord Hylton
In the light of what is stated in subsection (5), will the Government please express a view about arranged marriages? We know that in the context of some communities, cultures and religions arranged marriages are rather important. There is a wide variety of opinion on the subject. Some people point to the fact that arranged marriages have often worked out well whereas others question whether consent can properly be given by a person coming from another continent who may never have met his or her intended wife or husband. We may be getting into some difficulties and complexities. It would be helpful if the Government could clarify the matter.
§ Lord Mackay of Drumadoon
From these Benches I offer a measure of support to the noble Baroness in her amendment. I have some difficulty with its drafting in that it refers to "proposed" marriages, which, as I understand the clause, would apply to only some of the marriages that would be covered by the term "sham marriage", as that is defined in subsection (5).
Perhaps I may take forward a point raised by the noble Earl, Lord Russell. about freedom of information and invite the Minister who is to reply to indicate one way or another whether this information would be covered by the proposed freedom of information Bill; and, if it is, to explain why it would not be sensible to put this on the face of the Bill now so that at the point of delivery of the information to the Secretary of State those affected by it would, as a matter of routine, be provided with the information that may cast some doubt on the validity of their marriage if it is one that has been solemnised. If there is some argument against that, will he explain how those who are to be affected by the information will come to discover it in the short term?
§ Lord Williams of Mostyn
I have to say that the questions that have been raised on Clause 20 are wholly unrealistic. Perhaps I may go back to the terms of the clause. Under Clause 20(1), a duty is placed if the appropriate person who is in a statutory position of authority has reasonable grounds for suspecting that the marriage will be a sham. As the noble Lord, Lord Avebury, rightly pointed out, the term "sham marriage" is defined in Clause 20(5). All of these bogies have no relation to real life. Perhaps I may go through one or two of them.
There is no proposal here for cross-questioning of couples by registrars. If they have reasonable grounds for suspicion, which is a perfectly well known legal term and concept, they have a duty to report. Thereafter, the investigations can be made. It is nothing to do with discriminating in favour of the Church of England. As I said at Second Reading, those who marry in the Church of England or the Church in Wales generally proceed by ecclesiastical preliminaries—otherwise called 138 "banns"—and the procedure for that will not change. As I said on an earlier occasion, there is no evidence to suggest that religious marriages are abused for immigration purposes; and we are talking about abuse here.
Paragraph 77 of the Explanatory Notes makes the position quite plain. It states:It does not confer power to refuse to marry on grounds of immigration status".It goes on to state—this point has been raised by two or three noble Lords:Nor does it confer powers on registrars or others to question couples about their immigration status".Nothing could be plainer. Indeed, Clause 20 states that if there are reasonable grounds for suspicion, the report is required to be made. Nothing here interferes with any so-called spiritual relationship between the registrar and those over whose marriage he is presiding in a civil ceremony. I am advised that the registrars welcome the existing informal arrangements for reporting being put on a statutory footing. All that the registrars are being asked to do is to report their suspicions.
There are two or three further questions. If there were automatic copying of reports to the couple, registrars would feel restrained in setting out their reasonable suspicion. They might be reluctant to comply with the duty to report and that would undermine the purpose of the clause. Often, the report will go to the Home Office and in some circumstances the investigation will be made. In some instances, no action will be taken following the receipt of the report. We believe that other reports will undoubtedly show the existence of sham marriages which the Home Office rightly will want to investigate. If couples and racketeers were given advance notice of the investigation the whole underlying purpose of the reports would disappear.
The question was raised about absolute or qualified privilege in libel proceedings, if there were to be any. The answer is qualified. The answer to the question about freedom of information is that there are in the draft Bill, which is out for consultation for a two-month period, deliberately drafted restrictions about the disclosure of information which is being obtained with a view to the prosecution of crime. These offences are capable of being criminal offences.
§ Baroness Williams of Crosby
With great respect, I found the Minister's answer unsatisfactory. Perhaps I may briefly explain why. I have in front of me the draft guidance to registrars in England and Wales. It indicates that the registrar may refuse to proceed with a marriage because he believes that there is a lawful impediment to it. It also indicates that he may base his doubt about the genuineness of the marriage on the basis of either evidence produced to substantiate the dissolution or termination of a pervious marriage and doubt as to the true identity or marital status of the couple to the marriage. Incidentally, one of the things registrars are asked to look at is a major age difference, which would catch many marriages in this country. Thirdly, which is the aspect that is troubling,or as a result of representations made to him by a third party".139 We are not suggesting that the information in the report provided to the Home Office should be provided in advance. We are merely indicating our belief that at some point in the proceedings before final refusal is made the couple should know what is being reported about them and given the opportunity to respond.
Frankly, as representations may be made privately by a third party as to the non—genuineness of the marriage, such representations could easily be made by people for purely personal reasons; someone who is vindictive to one or other of the parties to the marriage and wishes to try to destroy the prospect of that marriage—
§ Lord Williams of Mostyn
The noble Baroness argues the reconstruction of her amendment because it states:and must at the same time send a copy of this report to the parties to the proposed marriage".
§ Baroness Williams of Crosby
I accept that that is what the amendment states. I believe that the registrar would have every right to make his doubts known to the Home Office and then to convey them to the young couple—or the older couple, as the case may be—and it would then be possible for the Home Office to take whatever action it deemed right having given an opportunity for the couple to refute the charge made. If it would help by redrafting to state:and subsequently within a reasonable time",we should be prepared to do that.
However, we must insist on the point that the substance of any charge that can be made on the basis of representations from a third party must be open to refutation in order to avoid the possibility of serious efforts by a third party to try to destroy the possibility of a genuine marriage. I repeat that immigration officers are very good indeed at chasing up sham marriages, and so they ought to be. No one is refuting that.
Secondly, we already know that the advice given by the Registrar General, or more precisely advice given to registrars of marriage, is incorrect. It failed to recognise that under the British Nationality Act 1981, which came into force in 1983, children born of families who came from elsewhere were British citizens. Even in the most recent information provided by the Office for National Statistics the advice is inadequate and incorrect. That advice would be found to be incorrect if the information was made available to the persons concerned. It was refuted by many legal representatives, but it was not changed in the guidelines. Even the information given to registrars turned out to be factually incorrect. They might have reached the incorrect conclusion that a marriage had an impediment to it. My understanding is that that has still not been put right. I shall return to that on Report, but for now I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.140
§ Lord Dholakia moved Amendment No. 39A:
§ Page 15, line 22, after first ("the") insert ("sole").
§ The noble Lord said: This is a very small amendment and the purpose behind it is simple. By including the word "sole" we shall ensure that we are dealing only with sham marriages, not other reasons for marriages. I hope that the Minister finds it appropriate to accept the small change in the wording. I beg to move.
§ Earl Russell
If the Minister objects to the word "sole" he will be saying that the marriage was for the primary purpose. I welcome the Home Office's recent abolition of the primary purpose rule. Rejecting the amendment would mean bringing the rule back in not by the back door, but by the revolving door.
§ Lord Williams of Mostyn
The provision relates to reasonable suppositions about a sham marriage, which is defined as one that is entered into,for the purpose of avoiding the effect of one or more provisions".This is not the primary purpose rule by the back-door or the revolving door—or indeed by the French doors or the patio swing doors.
The primary purpose rule required applicants to prove that the primary purpose of their marriage was not to obtain admission to the United Kingdom. We thought that that was arbitrary, ineffective and unfair. We abolished the rule on 5th June 1997 and we have no intention of reinstating it. However, there is a legitimate expectation that if an individual seeks to remain in the United Kingdom on the basis of marriage, the marriage must be genuine. The aim of the provision is to tackle abuse by those who are prepared to enter into a sham marriage to secure an immigration advantage. There is a good deal of material to show that that is an abuse. The attention given to Clause 20 is misplaced.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 20 shall stand part of the Bill?
§ Lord Dholakia
I should like to make four points. The arguments about sham marriages have been well rehearsed.
First, in opposition, the Labour Party made it clear that it was against the primary purpose rules and would abolish them at the first opportunity. The aim of the primary purpose rule was not to dispute whether the marriage was genuine, but to determine whether the purpose of the marriage was that someone was seeking admission to the United Kingdom. We are coming back to the same argument in a different way, saying that a marriage is not genuine and the purpose behind it is to stay in the United Kingdom.
My second argument, which the Minister has dismissed, is about indirect discrimination. I accept that a lot of preliminaries are undertaken before someone marries in a church. But it is clear that a large number of people of different faiths and religions are unable to 141 marry in church because they have a different faith, a different belief. Therefore, a condition is being imposed which the Commission for Racial Equality described as indirect discrimination. They are conditions and requirements which cannot be justified because the people concerned are unable to meet the conditions which a Christian could meet; that is, getting married in a church. Therefore, there is indirect discrimination because people are allowed to marry in a church with no questions being asked but the registrar has a different role to play.
The third point is the intention of registrars. I listened carefully to the Minister. I wish to stress to him that by trying to catch sham marriages, the Government are putting blame on a large number of ordinary, law-abiding black and brown faces in this country.
I want to give an example which will justify what I am trying to say. Only last week I was returning from Brussels with the members of the European Communities Sub-Committee F. The chairman of that committee, my noble friend Lord Wallace of Saltaire, was with me. There was no problem when we arrived in Brussels. The immigration officer was satisfied when we waved our passport documents at him. We were allowed through. However, when we arrived at Waterloo, there was a long queue of people. There was a black guy a few feet ahead of him. I said to my noble friend, "You watch. They will take his passport and flick through. I bet you when my turn comes, the same thing will happen". That is precisely what happened.
The point I am trying to make is that there are situations in which people probe much deeper because they do not believe that you are what you say you are. Those beliefs are often held. It is not surprising. I remember when I used to work for the Commission for Racial Equality that registrars used to insist on the production of a passport for proof of identity when there are many other ways in which people can prove their identity; for example, a birth certificate and so on. I believe that by imposing this onus on the registrar, life is being made very difficult for a number of black and brown faces in this country.
The Minister knows that there are ample powers by which to determine whether or not a marriage is a sham. Quite simply, under existing law it is quite feasible to see whether or not the marriage has subsisted for a period of one year. If it has not, there are ample powers by which the individual can be removed from this country. Therefore, why do we need a clause which imposes such an obligation on registrars? They are decent, honest people but, unintentionally, they may take action which could do a lot of harm to good race relations in this country.
§ 11.30 p.m.
§ Earl Russell
There is a serious point here. In 1628, an unmarried couple in Cannington in Somerset were presented for trial to the church courts accused of fornication because they had been keeping company with suspicious frequency.
It seems to me that that is exactly the type of suspicious mentality which the clause is bound to invite. I hear what the Minister says that the registrar will not 142 be allowed to question the couple. But if that is so, how will his suspicions arise? The fears of my noble friend Lord Dholakia are well-founded that that will necessarily result in a form of indirect discrimination. That will create a good deal of suspicion arid desire to avoid marriage.
Various people inside the Government occasionally express concern at the move from marriage towards cohabitation. I cannot help feeling that if this clause reaches the statute book, among every racial minority and every couple in which one member is of foreign origin the clause would accentuate that tendency. I do not see any decent loving couple wanting to subject themselves to this set of suspicions, the consequences of which, in the light of what we have heard about the employment clause and a great many other clauses, may turn out to be very serious.
I also simply cannot see how this clause can be made to be convention compatible. There has to be discrimination on grounds of national origin, because if both members of the couple are British born they are not subjected to it. So discrimination on grounds of national origin is built into the very warp and woof of the clause.
Discrimination on grounds of religion is again built into the clause. I hear what the Minister says about banns. On the other hand, is he suggesting that every case in which banns have been posted is necessarily, therefore, genuine? There is a vast mass of material in the Record Office of this place which demonstrates otherwise. That really was a slightly unwise suggestion.
Registrars do not normally know much about the people whom they marry. In a large town, in particular, it is a mass operation. If it is not done either by suspicion on grounds of racial origin or by suspicions planted by informers, I do not know how it will he done. However, the reference by my noble friend to information from third parties worried me. It is likely to be a case of hell knows no fury. I think that the Government have opened a very much larger can of worms than they realise. I hope they shut it quickly before all the worms get out.
§ Lord Cope of Berkeley
Perhaps the Minister would be kind enough to set out how this position of the Church of England arises and how it compares with the position of other Christian denominations such as the Church in Wales or the Church of Ireland, which are Anglican, and the Roman Catholic Church, among others. It seems to me that discrimination between the different denominations of Christians is awkward in a Bill of this character. In any case, I am riot sure how it arises on the face of the Bill.
§ Lord Williams of Mostyn
There is no discrimination here. Those who marry in the Church of England or the Church in Wales generally proceed by ecclesiastical preliminaries; in other words, banns. In answer to the noble Earl, Lord Russell, we have no evidence of significant abuse of those ecclesiastical preliminaries. The procedures for marriage in the established Church are already more lengthy, as I said earlier, and more involved in civil preliminaries.
143 Religious marriages other than those in the established Church require civil preliminaries. That is, therefore, the reason they are not exempted from the charge.
I turn to the figures. In answer to the noble Lord, Lord Alton of Liverpool, if one has significant evidence of sham marriages, that is an attack on the institution of marriage, an institution which he rightly commends. I shall give a few examples in a moment. However, perhaps we may return to what Clause 20 says. It does not require an inquisition or cross-examination. It simply puts into statutory form the informal arrangements which have existed for a long time. If a registrar has reasonable grounds for suspicion, he or she must report it to the Home Office, as they do now on an informal basis to the Registrars General of Scotland, Northern Ireland, England and Wales. I repeat: that is done at the moment.
Currently, if the Registrar General has a report and is satisfied that the registrar's suspicions are well-founded, the report is passed to the Home Office. We are altering that informal system to have a statutory duty to make the reports. I repeat—I hope for the last time—that that is based on reasonable grounds for suspecting that the marriage will be a sham marriage.
The immigration service team, which has not been operating all that long, has made over 236 arrests for offences connected with sham marriages. Of the foreign nationals arrested, 118 have been charged or cautioned and 42 removed or deported. It is sometimes quite plain to registrars that a marriage is likely to be a sham; for instance, if the couple do not really know each other, if they have to refer to notes to remember their names or if they do not speak the same language. Sometimes registrars see money changing hands. That is not limited to the parties to the marriage; there is significant evidence of rackets going on which involve substantial sums of money.
I will give some examples: a male asylum-seeker who attempted to marry a woman using a false Irish identity, sentenced to 12 months' imprisonment for perjury; a British male who married six times but failed to obtain a divorce on one occasion and was sentenced to three months' imprisonment for bigamy, perjury and facilitating immigration leave by deception; an Irish away-day bride who attempted to marry an illegal immigrant, arrived for her wedding accompanied by all of her eight children. Those are examples where there was reasonable suspicion and had nothing to do with the colour of people's skin.
I take the noble Lord, Lord Dholakia's, point because he knows that I have reason to know about it and that I sympathise with it. If the examination checks at Waterloo were wrongly carried out, they were immigration checks and nothing to do with marriage.
The registrars have an informal arrangement at the moment and we want to put it on a statutory basis. There is no right in any convention that I know of which incorporates the right to enter into a sham marriage. We are saying that if the registrar, as the appointed agent on a statutory basis, has reasonable suspicions that this is all a sham, he is required to notify the Home Office. 144 Thereafter, the reasonable suspicions may prove to be wholly unfounded and nothing more needs to be done, but, if they are founded, then people will be prosecuted. It is a mischief. It is an attack on what the noble Lord, Lord Alton, holds up as the model for men and women to live together. It has nothing to do with a decent regard for marriage; it has to do with an abuse of the process on quite a significant scale for cash.
§ Earl Russell
The Minister has chosen a slightly unfortunate example for his own purpose. He chose the example of a couple who hardly knew each other. Richard Nixon proposed to his subsequent wife two hours after having met her. They were married until death did them part.
§ Lord Williams of Mostyn
That is the best example of all time, bearing in mind that he was notoriously untruthful for most of his political existence.
§ Clause 20 agreed to.
§ Clause 21 [Provision of facilities for immigration control at ports]:
§ Lord Cadman moved Amendment No. 40.
Page 15, line 29, at end insert—
("() In formulating such facilities the Secretary of State shall have due regard to their economic cost and practical relevance to the control of immigration.")
§ The noble Lord said: While I have no quarrel with the proposal that the control port should provide necessary facilities for the proper control of immigration, the clause and the amendment that follows, which was proposed by Her Majesty's Government, appear to give the Secretary of State sweeping powers to demand almost any facility. It has to be said that recent approaches to Her Majesty's immigration officers to provide a service connected with their work at control ports that are to be modified or improved by the provision of new services has resulted in quite outrageous demands for accommodation and facilities, and tend not to be in keeping with the task at hand. Proposals connected with the processing of international railway passengers since the opening of the Channel Tunnel have been somewhat difficult and there is presently a serious problem developing at Manchester Airport. The problem is that Her Majesty's immigration service tends to demand facilities such as staff car parking and subsidised canteen arrangements, to say nothing of superior office accommodation and the provision of CCTV cameras designed to reduce the workload of immigration officers.
§ All these facilities have to be provided out of scarce resources, free of charge, by the port owners, who are often constrained by shortage of available space. The amendment is designed to ensure that the Secretary of State pays attention to the likely cost and relevance of any demanded facilities and should help to forestall the demand and provision of services that could be 145 construed as staff benefits not properly connected with the provision of an immigration service. I respectfully suggest that all ports should be treated on the same basis if charges for services are considered, which is not the present position.
§ In relation to airports, Her Majesty's Government's immigration proposals should reflect government policy towards regional airports and redress, not reinforce, differences between those airports and the London airports. Beneficiaries should not be asked to bear the costs of outdated and inefficient working practices in the immigration service, and there should be greater transparency of Her Majesty's immigration costs. I beg to move.
§ 11.45 p.m.
§ Lord Berkeley
I support the amendment in the name of the noble Lord, Lord Cadman. Over the years I have seen generous provisions demanded not just by the immigration service, but also by Customs and Excise. We saw that at Dover around 10 years ago when a new passenger immigration terminal was built. After the first couple of weeks, it was merely a wide-open space in which nothing happened. When Dover Harbour Board suggested building a supermarket there, it was told that that immigration facility was necessary, although it has not been used for anything since. Willesden rail freight terminal is not relevant to questions of immigration, but it still involves officials. An enormous great office was built of which the Ministry of Agriculture, Fisheries and Food required a complete floor, but it has not been there during the five years in which the building has been open.
The worst case occurred when I was working on the Channel tunnel. A police station was required to be built, at no cost to the police force, to ensure law and order at the terminal. It was nothing to do with MI5; it was merely to ensure law and order at the terminal. An enormous building to house 80 police officers in stupendous luxury was provided. One day an officer was asked how many officers would be required if the police were paying for the service themselves, and in an off-the-cuff answer we were told, "Two part-time from Ashford". There is a great gulf between two and 80. When the private sector is, if anything, reducing its standards of accommodation, and outsourcing and downgrading, the generous demands to which the noble Lord, Lord Cadman, referred possibly need a bit of tempering with words such as "economic cost" and "practical relevance".
I was particularly interested when the noble Lord said that the officers required free car parking space. I thought the Government's policy was to reduce the use of cars and to increase the use of public transport. Or will we see, if and when road pricing and workplace parking charges come in, many government departments seeking exemptions? I hope that the Minister will consider carefully our remarks in relation to this amendment, which I support.
§ Lord Cope of Berkeley
I too am sympathetic to this amendment. Something along the lines of reasonableness, whether in these precise words or some other, could well be included in this clause.
146 Something the noble Lord, Lord Berkeley, said rang a small bell in my mind. I was involved with Customs and Excise when the Channel tunnel was first discussed and I seem to remember a considerable argument as to what facilities should be provided on the trains, including whether it should be possible to detain people on the trains. The first suggestion was that a high percentage of the train should be taken up with facilities that might be needed if a large number of smugglers were arrested. I am glad to say that we came to a more reasonable conclusion in the end, but that and one or two other instances give me some sympathy with the purposes behind the amendment.
§ Lord Berkeley
The noble Lord is right. There is still a mobile gaol on every train, complete with racks to which to handcuff people. I do not believe they have ever been used, but they are useful for storing the luggage of Japanese tourists.
§ Lord Falconer of Thoroton
I understand why my noble friend Lord Cadman has tabled this amendment. Some operators, particularly at smaller ports, are genuinely concerned that the facilities they may be required to provide will not be proportionate to the size and nature of their operation and would significantly add to their operating costs.
Rental and other costs arising from the provision by port operators of other accommodation and facilities, such as back offices and waiting areas—which are no less essential to the operation of immigration control—fall to the taxpayer. Such charges, which are often at premium rates, include those attributable to services that port services, using their monopoly, insist on delivering themselves at above market prices.
Increases in passenger numbers are forecast, bringing great commercial benefits to port operators but also significant resource difficulties for the Immigration Service. As ports expand and new ones are established to accommodate the growth in international travel, additional burdens are placed on the Immigration Service in terms of increases in rental and associated costs. It is vital that the United Kingdom maintains its position as an international hub and a centre for trade, culture and education.
We welcome and are committed to facilitating growth. However, it seems reasonable for there to be a balance between the benefit to those with a commercial interest and the cost to the taxpayer. I hope that the noble Lord, Lord Cadman, accepts that it is not the intention to require facilities that are not necessary for the control of immigration. The significant growth in passenger traffic that we now experience brings with it commercial benefit to port operators. It is not, in the Government's view, unreasonable to look to them to make more of a contribution to the increasing costs of the Immigration Service in facilitating that growth.
Clause 21(1) states that the person responsible for the management of a controlled port must provide the Secretary of State, free of charge, with such facilities as the Secretary of State may direct as being reasonably necessary for or in connection with the operation of immigration control. We are in close consultation with 147 the industry in looking at the range of facilities that it is reasonable to expect it to provide. The kind of facilities will be prescribed by order, with a statutory requirement to consult individual operators before directions are given under the provisions.
The Immigration Service will continue to work in close partnership with port operators. Their requirements will have regard to the size and nature of the port's operation, for what is reasonably necessary will reflect those matters. The aim, wherever possible, will be to proceed by agreement with the operators within a clear framework provided in secondary legislation following the consultation already under way.
In all these circumstances I hope that the noble Lord is reassured and no longer considers it necessary to make his amendment.
§ Lord Cadman
I am grateful to the Minister for that explanation, although I found it a little disappointing. I am trying to reinforce the word "reasonable" and to make sure that in future, a more direct reasonableness is introduced in the provision of such facilities. However, at this hour of the night I do not intend to pursue the matter. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 21 agreed to.
§ Lord Williams of Mostyn moved Amendment 41:
§ After Clause 21, insert the following new clause—