HL Deb 02 August 1971 vol 323 cc900-93

8.12 p.m.


My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.

Moved, That the House do again resolve itself into Committee.—(Lord Windlesham.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ST. HELENS in the Chair.]

Clause 14 [Appeals against conditions]:

LORD GARDINER moved Amendment No. 79: Page 15, line 44, leave out (" or for other reasons of a political nature ").

The noble and learned Lord said: I beg to move this Amendment. The Committee is perhaps in some difficulty—I do not refer to the hour—due to the fact that there are a number of cases in which the Government have said."There is a point here; we should like an opportunity to think about it before Report stage." In those cases we have naturally not pressed the matter to a Division, but we do not yet know what the Government are going to do. There is also the difficulty that there are later Amendments on the Marshalled List which may or may not be carried.

The situation in which I move this Amendment is as follows: The position with regard to some right of appeal other than the ordinary right of appeal on a deportation order stands at the moment in this way: If the Government's Amendment No. 91 is carried, there will be a right of appeal in family cases. There will not be a right of appeal in the non-conducive cases. The non-conducive cases will be (a) of national security, (b) international relations, (c) for reasons of a political nature, and (d) non-conducive grounds which are not so limited. Of those non-conducive grounds which are not so limited the only examples given concern people of whom the Government have private information, which they cannot disclose, that they are drug traffickers or members of the Mafia. I concede that there ought to be some special procedure of appeal in cases of national security; in cases of international relations where the Government may not be able to explain the delicate position about the international relations, and in the general class which includes the Mafia, drug takers, et cetera. Whether that special class should be subject to appeal to a non-statutory body, and be purely administrative, like the"Three Wise Men ", or whether there should be a special form of statutory tribunal, we have later to consider. The only one I am questioning is: or for other reasons of a political nature ". I do that on two grounds: first, this phrase is so wide that it is difficult to understand what it means. The words"reasons of a political nature"must obviously include"Party political nature ".

Anybody who has experience of this situation knows that Home Secretaries and M.I.5 have always treated rather differently those on the extreme Left from those on the extreme Right, and the right honourable gentleman, the Home Secretary, was pressed in the other place to explain the type of person this phrase covered. On being pressed from both sides of the House the only case he was able to give was that of someone who it was thought had come here to stir up bad relations between different sections of our community. I must accept from him that' that is the case which is here covered; it was the only one that he mentioned. So let me take an extreme case, one about which we should have every sympathy with the Home Secretary: if somebody from West Pakistan comes here to make inflammatory speeches at public meetings against Pakistanis in East Pakistan, or vice versa. This does not seem to be proper for this special procedure but ought to be dealt with by the ordinary procedure for these reasons: First, as the Bill stands, this is not a man who has no right to come in here, and we are saying,"You cannot come in ". This subsection deals only with people who are already here, who have leave to stay here for a certain period and are suddenly told,"You must go at once ". The special procedure at the moment contemplated is that now applicable to civil servants.

But the Home Secretary says,"This ' Three Wise Men ' procedure with no right of legal representation is suitable in this type of case ". A civil servant is quite able to speak for himself—he is an educated man. If he wants to be represented by somebody else he can, although he has no right of legal representation. He could be represented by a representative of his Civil Service organisation, or by his Permanent Secretary. This may be a man who has come from Pakistan to see his son, whom he has not seen for some time. He has come for only three weeks, and speaks very little English indeed. He is suddenly told, when he has been here only three days, that he must leave at once. I cannot see why the ordinary right with representation should not be available to him as an ordinary appeal, when all he wants to say is,"I wrote and told my son before I came that I was not going to take any part in any public affairs between West Pakistan and East Pakistan, and that I should refuse to do this. You can ask my son, who has the letter. In the three days that I have been here, apart from my son and his family, I have not contacted anybody from West Pakistan or East Pakistan. The Government's fear that I am going to stir up trouble is completely unfounded."

The words referred to in my Amendment should be omitted from this subsection because of their wide meaning, which could include almost anything. Also, if we are to accept what the Home Secretary says, that all it is designed for is to cover this type of case, then in relation to this type of case there are not the characteristics which naturally obtain if one is dealing with national security, or international relations, as well as this wider class, which, as I understand it, is outside these words, of the person who is believed to be a drug trafficker or one of the Mafia and could perfectly well be dealt with, if at all, by the ordinary procedure.

I hope it will not be said that the Wilson Committee or the late Government agreed about this. I have read carefully what the Wilson Committee said. They were dealing with another point and the Appeals Order of 1970 to which the Government of which I was a member was a party, simply said this: Special procedure in cases involving national security et cetera or forgery of documents. Where a person appeals against any decision or action to an adjudicator, or by virtue of Article 4(1)(b) of this Order to the tribunal, and it appears to the Secretary of State that the decision or action was taken only or mainly in the interests of national security or of the relations between the United Kingdom and any other country or otherwise on the grounds of a political nature, the Secretary of State may direct that that appeal (a) if it would otherwise be heard by an adjudicator should be referred to and heard by the tribunal as constituted for the purpose of hearing appeals. That is an entirely separate point, whether the appeal should go first to an adjudicator or straight to the appeal tribunal—but that is quite another matter. I would have thought that these words ought to be moved out of this subsection, for the reasons I have given. I beg to move.

8.22 p.m.


Under the Bill as it was amended in another place on Report stage there is a right of appeal to the immigration appeal authorities where a decision to curtail the stay or a refusal to extend or remove the limit on a limited leave to enter is based on a personal decision by the Secretary of State that the person's departure would be conducive to the public good. This would not apply where the grounds were national security or reasons of a political nature. Similarly, there is a right of appeal under Clause 15 of the Bill where a deportation order is made on conducive grounds except where the decision, again taken personally by the Secretary of State, was in the interests of national security or of the relations between the United Kingdom and any other country, or for other reasons of a political nature.

As the noble and learned Lord, Lord Gardiner, has said, the purpose of this Amendment is to delete the last phrase so that there would be normal rights of appeal to the immigration appeal authorities where the decision to curtail the stay in this country or to deport was based on reasons of a political nature. The noble and learned Lord, Lord Gardiner, referred to the Report of the Committee on Immigration Appeals under the chairmanship of Sir Roy Wilson (Cmnd. 3387) and said he had studied it carefully, as indeed I have. Perhaps I may quote the whole of paragraph 143 so that it cannot be said that this is a selective quotation. The heading is"Special Cases ", and paragraph 143 reads as follows: Cases arise from time to time in which the Home Secretary feels justified in excluding a person from this country, or requiring him to leave, on grounds that are essentially of a political nature—for example, that his presence here is or would be harmful to international relations, or offensive to public opinion. We doubt whether the system of appeals which we are proposing would provide apt machinery for dealing with such cases. We would not therefore think it wrong in principle, or destructive of the general value of the proposed appeal system, to remove such cases from the scope of that system and leave them entirely to the Home Secretary's discretion subject to his responsibility to Parliament. That is the whole of paragraph 143.

The present position is that Article 8 of the Aliens (Appeal) Order 1970 makes special provision for an advisory procedure instead of the normal right of appeal. I quote the words from the Order: Where it appears to the Secretary of State that the decision or action was taken wholly or mainly in the interests of national security or of the relations between the United Kingdom and any other country or otherwise on grounds of a political nature. That is the position under the Aliens (Appeal) Order at the moment; so the Bill not only follows closely the precedent set by the previous Administration, but is modelled on the actual words used in the Order in effect to-day. The Aliens (Appeal) Order was laid before Parliament in draft when the Immigration Appeals Bill was introduced in 1969, and the fact that the special advisory procedure referred to in the Order would extend to political cases was drawn to the attention of your Lordships at the Committee stage of this Bill by the noble Lord, Lord Brooke of Cumnor.

The noble Lord, Lord Stonham, defended the reference to political cases, The noble Lord, Lord Stonham, was asked what kind of cases the Government had in mind when including this reference to political cases, and he replied: The kind of case the Wilson Committee had in mind as an example of one decided on political grounds, not connected with international relations, was that of a person whose presence here would be an offence to public opinion. They gave, for example, a prominent neo-Nazi. Another example might be the case of an alien seeking to work covertly in this country, in the interest of a foreign Power, in a way that was contrary to our national interest, although it could not be said to threaten national security."—[OFFICIAL REPORT, 6/5/69; col. 1066–7.] Since the immigration appeal system was introduced the only case which has fallen within the words which the Amendment seeks to exclude was that of Mr. Dutschke. This case also involved grounds of national security, so the Government are not able to add to the experience which my predecessor, the noble Lord, Lord Stonham, gave from this Box in 1969. But it does seem to us right that cases which might fall within these words should remain matters for the Home Secretary's decision, exercised in the light of the advice he will receive from the Three Advisers and subject to his answerability to Parliament.

This is one of those Amendments—we have others later to-day—that at face value attract a good deal of sympathy. One tends to feel that this type of Amendment deserves support, but when one comes to look into it I do not think there is a great deal between us. The previous Administration set up an advisory procedure. It operated within the immigration appeal system but it was a special advisory procedure. In all other cases the Home Secretary is bound by the findings of the Tribunal or of the adjudicator, and appeals are made against his own decision; but this is not so in the case of security or political appeals.

Noble Lords who have followed this matter will find that in about 1967 or 1968 when he was Home Secretary Mr. Roy Jenkins discussed in another place, on a debate on the Expiring Laws Continuance Bill the recommendation by the Wilson Committee. He said that he saw the force of what they said but that he wanted to have the benefit of some advice. He wanted to retain this as a discretionary decision but he wanted some advice. He thought the way to do it was to have the Tribunal argumented by special members who would sit for the purpose and be able to give the Home Secretary advice in security or political cases. There has been only one instance of this special procedure and we know—Mr. Callaghan said this frankly—that it did not work out as he had hoped. He was the Minister responsible when the 1969 Act was introduced. The special procedure did not work out in the manner he hoped it would. It took on the character of a trial, and a trial in which aspects of the evidence were brought out which could not be rebutted by the person who was appealing before the Tribunal.

That being so, it seems to the Government that the right thing to do in these circumstances is to return the matter to the Home Secretary's discretion and in this instance for him to have the benefit of the special advisory procedure—the"Three Wise Men "—which he described at some length in another place, and not to continue with what was (and we must accept this) an unsuccessful experiment. These are the reasons why we think that what is in the Bill is right. Although we have sympathy with what the noble Lord has said, and have given it a good deal of thought, we are inclined to think that in this respect the Bill is better than the Amendment.

8.31 p.m.


I very much hope that the Minister, in accordance with the way he has met other Amendments, will consider this matter before Report stage. The words in the Bill are extraordinarily wide. I am disturbed again and again in reading clauses in this Bill by the power that is given to the Secretary of State. I do not want this country to become in any way a totalitarian nation. But these powers, which include the suggestion that one should not have the right to appeal for reasons of a political nature, go very far indeed to making this country in this respect totalitarian.

The Minister has referred to the reply of the noble Lord, Lord Stonham, which limited the right to particular circumstances. I acknowledge that I am not much concerned about what previous Governments have done in this respect. I am concerned about the whole principle of the issue. The broad terms of"reasons of a political nature"seem to me to be going much further than any measure of this kind should go if we believe in libertarian policies at all. I hope the Minister will look at this matter again to see whether he can before Report stage obtain a form of words which will not leave this very broad exemption free from the right of appeal.


It is sometimes helpful in a case of this kind to reduce it to a reductio ad absurdum. I would ask whether the case I am going to quote is a case to which this would apply. If it is assumed that we had a strong anti-Common Market Government, and a strong Opposition which was pro-Market, and the Opposition arranged for Willy Brandt to come to this country and address a large meeting at the Albert Hall, it seems to me that under the terms of this provision the Home Secretary would have the right, on political terms, to forbid him to come. I do not object to this. What I object to is the part of the clause which says there should be no appeal against it. Does not this rather absurd instance show the dangers?


I do not think it does show the dangers. With respect, what it does is show the inappropriateness of judicial proceedings. What happened in the Dutschke case? The immigration appeal system had been set up; there were adjudicators hearing thousands of cases every year, and the Tribunal acting as an appellate division, with fixed rules of guidance. They had the Statutes concerning immigration law and the immigration Rules. We have some relevant Amendments to deal with later on when we come to discuss the role of the adjudicators and the Tribunal. They can ensure that the rules are adhered to, that the law is properly kept and observed by immigration officers and others; and in certain cases they can review the way in which discretion is used. Therefore they can build up a body of case law and know where they stand.

However, when there are—and there always will be—political decisions, there is no way in which a Tribunal, which has a quasi-judicial character, can assess the merits of those decisions. We heard a powerful speech by the noble Lord, Lord Garner, on this exact point on Thursday night. He and the noble Lord, Lord Gore-Booth, sat as members of the Tribunal on the Dutschke case. He said he accepted the Government's case, that these are political decisions for which the Home Secretary must be answerable to Parliament. That may be a part of the equation to which the noble Lord, Lord Donaldson of Kingsbridge, did not give adequate weight in the example he gave.

My right honourable friend the Home Secretary has given a great deal of thought to this matter, and he did not in fact go as far as that. He did not say,"These are to be entirely discretionary decisions. I will take the decision without consulting anyone." He said that where a man is already in this country, in the security and political cases the Home Secretary should take advice. He was really saying exactly what Mr. Jenkins said previously, that he would not ask the Tribunal, who were there in the role of judges, to review what is essentially a political decision.


The Minister will know from what I said the other evening that I am in general sympathy and agreement with him upon the general issue that a decision taken upon political grounds is a decision which ought to be taken by the Home Secretary, which he ought to be prepared to defend in Parliament, and it is inappropriate to refer that decision by way of appeal to any kind of appellate tribunal. I am with the noble Lord on that, but a narrower point arises on this business which I should like to take up with him. As I understand it, the argument is that the person who is in this country and appeals against conditions is in a rather better position under Clause 14(3) than is the person who is excluded from the United Kingdom and appeals under Clause 13(5).

In other words, if under Clause 13(5) the Secretary of State certifies that a person's exclusion is conducive to the public good, that is the end of the matter; but when we come to the person who is in this country and who appeals against a variation of conditions under Clause 14(3), then he is said to be, as I understand it, in a more favourable position because the words"conducive to the public good"are qualified by the words which follow after them; that is to say, first,"as being in the interests of national security "; secondly,"or of the relations between the United Kingdom and any other country "; and thirdly,"or for other reasons of a political nature ".

What I question is whether those words, if they mean anything at all, which I am inclined to doubt, are anything less than"conducive to the public good ". It all depends upon the meaning of the word"political ". I looked up that word in the dictionary and found that it means: Of or relating to the State; or of or relating to government; or of or relating to public affairs. If one reads the word in that sense, then one finds that the provision reads like this: for other reasons relating to public affairs ". I should have thought that would include the case of the Mafia, and the example which somebody gave of the American student who comes over here to disrupt a university, or something of that kind. It seems to me that those words, read in that sense, are as wide as the words"conducive to the public good ". So my difficulty is whether Clause 14(3) in fact varies from Clause 13(5) in any material way and whether we have not been given here a sop with the suggestion that there is a difference when in fact, as I think, there is no distinction.


Perhaps if the Minister is going to reply to the noble Lord, Lord Foot, he will also cover a point which I made and to which I do not think he has yet replied; namely whether it is right for the Government to say that the"Three Wise Men"procedure has worked all right for civil servants without any right of representation and therefore it is good enough for these people. But civil servants are educated Englishmen, who are quite capable of speaking for themselves and who, in any case, can get their Civil Service representative or Permanent Secretary to speak for them. We are now dealing, however, with foreigners who are already here and who are suddenly told they must go; they may have been here for only two or three weeks and able to speak only a little English. Therefore can a procedure be right if it affords them no legal representation at all? I have an Amendment down about legal representation, but that would not apply to this case.


I was brought up to believe that when one visited a foreign country one should respect the hospitality of that country, and therefore, whatever views one had personally or in conversation with one's friends about the politics of that country, one should not take any overt action in the matter. I think this is a fundamental point of good relations between countries. In regard to the question now before us, it seems to me that it is a case where somebody has abused the hospitality of the country and has taken overt action. In such a case I am inclined to think that the Home Secretary would be entitled to take what one might call direct action, knowing that any action that he took would always be subject to review in Parliament. Therefore I am inclined to support my noble friend on the Front Bench in this matter.

May I add a postscript about the cliché which is going the rounds so much at the moment about the"Wise Men "? It is being so much over-used at the present moment that one does not know who are the"Wise Men"concerned, or how many there may be. In another place today there was confusion as to whether it was three"Wise Men"or four, and I returned to this House this evening and discovered another debate about"Three Wise Men ". It is all most confusing, and I think we should do something to make our definitions and our language more clear.


I am grateful to my noble friend for his support, and I think that what he has said really answers the noble Lord, Lord Foot-The proposition from which the Home Secretary started in considering this matter is that there is a prerogative power to exclude anyone from this country, and that this is exercised by the Home Secretary in his discretion. Where a person is already in this country—the man covered in Clause 14 of the Bill—the Home Secretary explained in Standing Committee at some length, in a passage to which I referred last week, that he thought we owed the individual rather more. The man will have been admitted into this country; and if the Home Secretary then takes the initiative against him, as it were, by terminating his stay, by refusing to extend it or by curtailing it in some other way, he should be in a better position than somebody who is not here at all—who is outside the country—although the grounds may be similar. It is for that reason that there is an appeal—if one may use that word. In the case of the man who is already here, there is an advisory procedure—this is set out in Clause 14(3)—whereas there is not in the case of a man who would be covered in Clause 15(3).

The noble and learned Lord, Lord Gardiner, asked me a question to which I think there is no complete reply. My right honourable friend spoke at some length on June 15 on the Report stage about the structure and the working of the advisory panel—the"Three Wise Men ", to use what is undoubtedly a well-worn cliché, though if we start changing our terms now I am afraid that we shall only confuse ourselves. My right honourable friend made the point then that there would be no right to legal representation but that the person concerned could be represented by a friend, or by somebody acting on his behalf.

I agree that there is probably a considerable difference between a civil servant who is familiar with the procedure, who has worked within the Civil Service, and somebody from outside this country who may not have been here for long; who may have language difficulties or whose knowledge of British customs may not be great. None the less, I think we can expect the Home Secretary, who has put it on record that he intends to take advice from a body of people, to make sure that the individual knows what his rights are and is helped in regard to them. As the noble Lord, Lord Foot, knows, this happens within the working of the appeals system at the moment. The Immigration Service do not regard themselves as being there to prevent immigrants from exercising their rights; on the contrary, it is their responsibility to tell people what their rights are and to encourage them to exercise them as much as possible. We must have confidence in the common sense of those who would be concerned in this particular procedure. I suppose that a comment one can also make to the noble and learned Lord is that if the"Three Wise Men"themselves felt that they had not been given a fair deal they would make a point of saying so.


I am grateful to the Minister for the consideration he has been good enough to give to this matter. There are, of course, two points of view. I am grateful to know that the Home Secretary is prepared to consider whether this sort of case should be dealt with by the"Three Wise Men"or whether provision might not properly be made for legal representation. I considered what the noble Lord has said, and on that I ask leave to—


Before the noble and learned Lord finishes what he was saying I do not want there to be any misunderstanding. In what I said I did not intend to give the impression that the Home Secretary was considering a formal right of legal representation, but he clearly stated that there would be an opportunity for an appellant to be represented by a friend.


I understood the Minister to say that if the"Three Wise Men"themselves said,"We cannot understand a word this man says; he has brought along a Pakistani friend and we cannot understand what he says, either. Really it would save us a great deal of time if we were to allow him to have legal representation ", the Home Secretary might consider that. On that, I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clause 15 [Appeals in respect of deportation orders]:

8.50 p.m.

LORD WINDLESHAM moved Amendment No. 80: Page 16, line 17, at end insert ("; but, in calculating the period of eight weeks limited by section 5(3) above for making a deportation order against a person as belonging to the family of another person, there shall be disregarded any period during which there is pending an appeal against the decision to make it.")

The noble Lord said: I beg to move Amendment No. 80. This is the first of the Amendments which are concerned with family deportation and the right of appeal. As I explained on Second Reading, my right honourable friend in the course of debate in another place about the power to include members of a family in a deportation order, did concede that there should be a full right of appeal on merits for members of families, and Amendments Nos. 80, 81, 84, 91, 94, 96 and 97 give effect to the Home Secretary's undertaking. The principal Amendments in this series are Nos. 84 and 91, the others being in various ways consequential.

The purpose of Amendment No. 80 is as follows: Under Clause 5(3) a deportation order may be made against a member of a family at any time within eight weeks of the departure of the principal deportee. This interval allows time for the rest of the family to be given the option of supervised departure; that is, accompanying the principal deportee but without thmselves being deported, although knowing that if they fail to leave the Home Secretary will feel obliged to make a deportation order against them. The effect of the Amendment is that, if for any reason the proceedings on appeal brought by a member of a family are still pending when the principal deportee leaves the country, the eight weeks' time limit runs only from the conclusion of the appeal proceedings; thus even if the dependant's appeal takes a long time to settle it will still be possible for the Home Secretary to offer supervised departure.

I should add that we do not expect appeal proceedings to be prolonged often in this way, but it is a contingency that should be covered. Normally we would expect appeals brought by the principal deportee or any member of his family to be disposed of before any of them leave the country. There may, however, be cases in which the head of the family does not wish to appeal against his own deportation, and asks to leave as soon as possible so that if the family follow he can then prepare for their coming. I beg to move.

On Question, Amendment agreed to.

LORD WINDLESHAM moved Amenment No. 81: Page 16, line 18, leave out from beginning to (" a ") in line 22.

The noble Lord said: This is another Amendment in the same series. The words proposed to be deleted—that is the first half of Clause 15(3)—reappear in subsection (8)(a) in the list of four new subsections to this clause which it is proposed should be added after Clause 15(6) at the top of page 17. This is set out in Amendment No. 91. It seems to the Government to be clearer presentation to cover all cases in which an appeal lies direct to the Tribunal, including the family deportation appeals, and this is what the new subsection (8) will contain. This rearrangement is consequential on the first Amendment in the series to which I have just spoken. I beg to move.

On Question, Amendment agreed to.

LORD WINDLESHAM moved Amendment No. 84: Page 16, line 28, leave out subsection (4).

The noble Lord said: It will be seen that three Liberal noble Lords have added their names to my own on this Amendment, but lest it should be thought that the Government are seeking to curry favour with the Liberal Party, I should point out that we are joining forces similarly with the Labour Opposition on Amendment No. 94. The reason is the same in both cases, that the Government have, as I have explained, accepted the case for appeal in cases of family deportation, and therefore neither the first half of Clause 15(4) nor Clause 17(6) are required. The second half of Clause 15(4) is reinserted in the new subsection (7) in Amendment No. 91. I beg to move.


I rise really because if, as one would assume, with the grand alliance between the Government Front Bench and the Liberals, this Amendment is carried, the noble Lord shoots my fox in Amendment No. 85, which will then fall. It seems to me that before one does this one should perhaps have a little more discussion on exactly what the noble Lord was referring to when he said that this new procedure on appeal in family deportation cases would be on merit, because all that these Amendments are concerned with is the procedure by which such appeals could be carried out.

The noble Lord will remember that at an earlier stage of our discussions I made the point that I still could not see on what grounds such an appeal could lie. It is all very well having a procedure, but unless there are grounds the best procedure in the world is not much use. The noble Lord was good enough to say that the grounds would be vouchsafed hereafter, under some rules the draft of which we have not yet seen. This is what I would draw to your Lordships' attention, because it does seem to me a far from satisfactory state of affairs. If, as one would hope, by the time we reach some later stage on Report the Government have had second thoughts about the whole question of family deportation, this would be by far the most satisfactory way of dealing with this situation.

I would not expect the noble Lord to say anything at this point, because it would not perhaps be appropriate, but I am making this point at this stage because it seems to me the most appropriate stage at which to make it. One has no objection to improved procedures for appeal, but they can be pretty hollow unless one has grounds, and I am still entirely unclear what those grounds are likely to be.


Might I make it perfectly plain, because, after all, we have got our reputation to think of, that the fact that this Amendment stands in the name of the noble Lord and ourselves is purely fortuitous; and in fact, as I do not think he has made quite clear to the Committee, he is proposing to put the second part back again later on, which is the very part we want to get rid of. Therefore, I would like to be able to reserve what comment we have to make upon that second part until we come to Amendment No. 91, where it is reproduced. Perhaps I might explain while I am on my feet that as a result of the passing of this Amendment, if it is passed, certain of the following Amendments standing in the name of my noble friends and myself will fall to the ground, and I shall not of course be moving them.


The noble Baroness, Lady White, said that if this Amendment was accepted the Government would have"shot her fox"in the shape of Amendment No. 85. With all respect, I think that her fox had already been shot by the Government concession on the right of appeal on family deportation, because the grounds that the noble Baroness has advanced are in fact narrower than the grounds of appeal which will exist in future; she has only suggested two grounds whereas there will now be a right of appeal over a much wider range. The noble Baroness asked me on what principles the Tribunal will proceed when considering cases of family deportation. It was exactly for these reasons that I gave her quite a full account of our thinking when we debated this particular provision last week.

As I said, these are not final and concrete proposals, but they represent the way our minds are working. If a wife had been separated from her husband for some time that would probably be regarded as a ground for not treating her as a member of his family. If a child had left home and taken employment and established himself elsewhere, that again would be a ground for not regarding him as a member of the family. In the case of younger children of school age, I think it would be right to take account of the disruptive effect of removal on their education, and the likely effectiveness of plans for their continued care and support in this country if one or both parents were deported. The Immigration Rules on Control after Entry will be amended so that they contain a full statement, on which the Tribunal will base itself when considering the appeals.

As regards the general question of family deportation I do not think I can leave the noble Baroness in any doubt on this. We had a full debate on the subject, and the Committee then divided on the question. In a number of matters I have undertaken that we are going into them very carefully, but in these circumstances I do not think it would be right to mislead her by holding out very many hopes on this question.

On Question, Amendment agreed to.

LORD FOOT had given Notice of an Amendment, No. 90: Page 17, line 1, leave out subsection (6).

The noble Lord said: When we were discussing Amendment No. 73, which was an Amendment to Clause 13(3), I argued that the persons there dealt with ought not to be required to leave the country before they could initiate an appeal against their refusal of entry. This Amendment raises the same issue, but the clause we are now discussing deals with people who are seeking to appeal against the refusal to revoke a deportation order. I have to recognise, and I do recognise, that the case for requiring these people to get out of the country before they can initiate their appeal is stronger than in the other cases, such as the case of patrials and so on, which I raised before. In those circumstances, I shall not move my Amendment No. 90.

9.6 p.m.

LORD WINDLESHAM moved Amendment No. 91:

Page 17, line 5, at end insert— (" (7) On an appeal against a decision to make a deportation order against a person as belonging to the family of another person, or an appeal against a refusal to revoke a deportation order so made, the appellant shall not be allowed, for the purpose of showing that he does not or did not belong to another person's family, to dispute any statement made with a view to obtaining leave for the appellant to enter or remain in the United Kingdom (including any statement made to obtain an entry clearance). (8) An appeal under this section shall be to the Appeal Tribunal in the first instance, instead of to an adjudicator, if—

  1. (a) it is an appeal against a decision to make a deportation order and the ground of the decision was that the deportation of the appellant is conducive to the public good; or
  2. (b) it is an appeal against a decision to make a deportation order against a person as belonging to the family of another person, or an appeal against a refusal to revoke a deportation order so made; or
  3. (c) there is pending a related appeal to which paragraph (b) above applies.
(9) Where an appeal to an adjudicator is pending under this section, and before the adjudicator has begun to hear it a related appeal is brought, the appeal to the adjudicator shall be dealt with instead by the Appeal Tribunal and be treated as an appeal duly made to the Tribunal in the first instance. (10) In relation to an appeal under this section in respect of a deportation order against any person (whether an appeal against a decision to make or against a refusal to revoke the order), any other appeal under this section is a"related appeal"if it is an appeal in respect of a deportation order against an- other person as belonging to the family of the first-mentioned person.")

The noble Lord said: I beg to move Amendment No. 91 standing in my name on the Order Paper. In order to give effect to the Government's intention of providing a right of appeal direct to the Tribunal whenever the deportation of members of a family is in question, it is necessary to make some alterations in the the structure of Clause 15. Most of these alterations, as noble Lords will see, are contained in Amendment No. 91, which adds four new subsections to the clause. The new subsection (7) reinstates, in a different place in the clause, a provision previously contained in the second half of subsection (4) which was deleted by Amendment No. 84, to which the noble Lord, Lord Foot, referred when we discussed that Amendment.

The effect of this provision is that where a person is appealing against a decision to make a deportation order against him as belonging to the family of another person who is to be deported, the appellant will not be able, for the purpose of showing that he does not belong to that person's family, to dispute any statement made with a view to obtaining the appellant's entry to the United Kingdom. The provision is intended to deal with the case of a person who has been admitted as the dependant of a sponsor in this country, although in fact he has not the relationship with the sponsor, or is not within the age limits laid down. Such a person has, if anything, less claim to stay here when his sponsor is deported than has a genuine dependant. This provision would prevent a person who had gained entry as a dependant, because the facts were misstated, from retracting the full story and disclaiming the status of a dependant when it was to his advantage to do so. It would be anomalous if the genuine dependant were included in the deportation order while the false dependant was not, although the basis of their entry to this country was the same.

The new subsection (8) sets out the cases in which an appeal against deportation is to lie direct to the Tribunal. These will no longer be limited to the cases of deportation on conducive grounds which are now mentioned in subsection (3), and are referred to in the new subsection (8)(a). They will include under subsection (8)(b) appeals against deportation as a member of the family, and appeals against a refusal to revoke a deportation order made on that ground. In addition, the effect of subsection (8)(c), combined with subsection (10), will be that where both the principal deportee and one or more members of his family are appealing against deportation, all the appeals will go to the Tribunal, instead of the principal deportee's appeal being dealt with by an adjudicator. This provision ensures that the Tribunal will deal with the family as a whole, and it is proposed in the rules of procedure to provide that all the appeals should be heard jointly.

Subsection (9) deals with the situation where notice of appeal is given by the principal deportee some time before it is given by members of his family. The subsection has the effect of diverting the principal deportee's appeal straight to the Tribunal if the adjudicator has not already begun to hear it. I beg to move.

9.8 p.m.


On behalf of the Opposition, I must first thank the Government for having introduced this provision so that there will be a right of appeal in the case of a family deportation. I think I referred last week to the statement made a couple of years ago by the noble and learned Lord the present Lord Chancellor, when he said that we had established one of the less liberal and one of the most arbitrary systems of immigration law in the world—in the civilised world at any rate. Of course that had nothing whatever to do with the large numbers which have recently come into this country; it had nothing to do with any racial question at all. The first and most obvious way in which our immigration law was one of the less liberal in the world went back between 30 and 40 years: to the absolute bureaucracy of the Home Secretary, and the fact that there was nowhere in our immigration law any right of appeal against anything at all.

I should like to make it clear that, in common, I am sure, with everyone who has been a Minister, I have the highest possible regard for our Civil Service, and in substance the immigration officers are, if I may say so, our old and much valued friends the executive officers, the lowest grade of the Executive class. The immigration officer is paid the same and is largely recruited either from the E.O.s or from those below them who are entitled to promotion to be E.O.s, and I am quite sure that they have all the qualities which the Home Office told the Select Committee on Race Relations and Immigration they should have. They are expected to have knowledge of at least one foreign language and to have the qualities of courtesy, tact and firmness which are needed to operate an effective control with the minimum of inconvenience to the travelling public. They need to be alert and observant and to have the ability to deal fairly and patiently with all passengers. I am sure that these equivalents of E.O.s have all these qualities; but there is always a danger in conferring an overriding power on civil servants if there is no possible right of appeal against them.

We do not allow any judge to have the power of being final so that nobody can ever question what he does. It is not good—we all know this—from the point of view of human nature to put men in a position in which they have great effect on the lives of other people, if they know that whatever they do nobody can question it. This is why many of us have been fighting for a very long time to do away with the extraordinary bureaucracy in this country of the Home Office and its officials, whose word is the last word, and to provide a right of appeal. This is why, particularly in regard to these family cases, we are very grateful to the Government, because the position we now have is that, apart from the non-conducive cases, there is now a right of appeal against all cases of a deportation order.

But, while thanking the Government, I must say that there is one point about which I am very unhappy, and that is the wording of subsection (7), which reads: (7) On an appeal against a decision to make a deportation order against a person as belonging to the family of another person, or an appeal against a refusal to revoke a deportation order so made, the appellant shall not be allowed, for the purpose of showing that he does not or did not belong to another person's family, to dispute any statement made with a view to obtaining leave for the appellant to enter or remain in the United Kingdom (including any statement made to obtain an entry clearance). It is a very familiar principle of law that if A makes to B a representation of an existing fact and B acts on that to his detriment, A ought not afterwards to be allowed to call evidence that what A said was untrue. This is based on a sound moral principle, and to the extent that this is saying that a man who comes here and makes a representation—for example,"This woman I have brought with me is my wife "—ought not in subsequent deportation proceedings to be allowed to say,"What I then said was untrue ", that is absolutely right. It is the familiar principle of estoppel.

But there are two further things in this subsection which seem to me, if I may say so, subject to what the Government have to say, to be completely wrong. First of all, it is related not to whether what the man said was true at the time but to whether it is true now. I cannot see that that is possibly right. The man comes in and he says,"This woman with me is my wife ". Two or three years pass, and there is a divorce. They may both remarry. It cannot be right, surely, that he should be precluded from saying,"What I said was perfectly true at the time, but it is not true now because there has been a divorce and she is no longer my wife." I do not see how that can possibly be right, but as I read the wording of the subsection that is the effect it seems to produce.

The second point is this. The appellant may be the man himself or it may be one of his family who is being threatened with deportation with him. This wording appears to bind third parties as well as the man himself, and I should have thought that could not be right. If a child is brought in by a man who says,"This is my son ", and he is accepted on that footing, and if, it may be years later, the question of this man's deportation arises, it is quite right that he should not be allowed to deny that what he said was true. But, surely, it ought not to bind the boy. The boy may in reality be the son of some other Pakistani who is in the country. How can it possibly be right that the boy, who is not responsible for what the man said, should be bound by what the man himself said? Therefore, while I quite accept the ordinary principle of estoppel, it seems to me that, so far as this clause does not appear to allow for any change of circumstance, and so far as it appears to be binding on other members of the family, it cannot be right.


May I support the noble and learned Lord in practically everything he has said about this Amendment? Per-Imps I may start by saying that we on these Benches very much appreciate that the Government have given this wider right of appeal to the families of deported persons. We regard this as a very big step forward, and one of the major improvements which, with the assistance of the Government, have been made to the Bill. The second thing I should like to say, in following up what the noble and learned Lord has said, is something about the work of the adjudicators and the Appeal Tribunal, and of the immigration officers. It is perfectly correct, as the noble and learned Lord has said, that the task thrown upon the shoulders of immigration officers at the various ports of entry is one of the most difficult tasks to perform, and from what I have seen of the immigration officers at work at the various ports of entry I am satisfied that we are extraordinarily well served by these people. There is no sort of doubt about that.

But, as the noble and learned Lord said, however admirable such a body of men may be, and however well they may attempt to do their work, it does not relieve us of trying to set up an appeal procedure. With the experience that we have had of the working of the appeal system over the last couple of years, I believe that, generally speaking, throughout the immigration service the institution of the appeal system has been very much welcomed, because it has relieved them of what were very often baseless accusations of prejudice. They are in a position now to say,"We will make our decision, and if you are dissatisfied then you can take it to an independent tribunal ". I believe that this system has been welcomed by them, as it has been by the people who take advantage of it.

But may I turn to subsection (7), and to the point which the noble and learned Lord made about it? I hope we have made it clear from these Benches—if not we shall have failed in our job—that, while we regard the whole of this Bill as a very bad Bill, if I had to pick out any single item in it which I regard as nastier than any of the other provisions, I think I would settle upon this one. The noble and learned Lord read out the subsection as it stands, and he made the point that this is an unprecedented extension of the law of estoppel. It is an unprecedented extension of the law of estoppel in one particular regard, and that is that a person is estopped under this particular clause from disputing a statement which was made by somebody else and in which he had no part, in which he did not connive. But he is bound by that, and bound by it at once and for ever more.

The noble and learned Lord drew attention to the sort of shocking possibilities that could occur under this clause. He took the case—and I should like to take the same ease, it I may, and deal with it in a slightly different fashion—of the infant child who comes into this country as the dependant of a Commonwealth citizen who is already settled here. The child comes in under some false assertion of parenthood. The child comes in and many years later the sponsor of the child, the person who perhaps purported to be the father of the child, is convicted of a criminal offence and ordered to be deported. At the discretion of the Secretary of State the order may be made against the child, who is perhaps now 15 or 16 years of age. When that matter comes before the appeals tribunal it is not open to the child to say that this is not right, that this man is not his father, that this man is perhaps his uncle. He is not able to dispute it, he is not allowed to say anything to the contrary.

The wording is"any statement ". It does not say, only a statement made by the boy's sponsor, the uncle or someone like that; it says"any statement ". He is not entiled to dispute any statement that may have been made at any time with a view to obtaining leave for him, the child, to enter the country. It may be a statement made by somebody who is still abroad, perhaps in Pakistan; it may be a statement made by some distant relative or by some official, a district officer. He is not entitled to dispute any of these statements. Not only is this a wickedly unjust decision, or could work out with wicked injustice; but I suggest, as Oscar Wilde would have suggested, that it is even worse than that because it is silly.

The whole object of Clause 3(5)(c) of the Bill, which is the subsection that provides that the family of a deported person can be deported too, is to ensure that when a person is deported it shall be within the power of the Secretary of State also to send out that person's family. That is the object of it, that you should be able to get rid of the family of that person at the same time as you get rid of him. The result in the example that I have given is not to send away a dependant or a member of that person's family, but to send away somebody else, somebody who is a member of some other family. You get this ludicrous result: a person is deported, and you insist that there shall go away at the same time a person who is not a member of his family and not in any way dependent upon him. That is the outcome of this niece of legislation. This is not a case of the sins of the father being visited upon the children; it is a case of the sins of the father being visited upon somebody else's children.

How can this matter be cured? As the Minister will know, we have put down an Amendment to the earlier clause (now taken out)—a very simple Amendment. If the Minister cannot given us any encouragement on this occasion then I think we shall seek to move a similar Amendment at the next stage. What we sought to do was to insert in this new subsection (in the sixth line) the simple word"he"so that it now reads that it will not be possible to dispute any statement he "— that is, the appellant, the member of the family— made with a view to obtaining leave for the appellant to enter or remain and so on. While we have not put down that Amendment to the noble Lord's Amendment, I hope that he will be able to give us some encouragement and that the Government will be able to look at this in some favourable way.


May I add a word on this matter, in the hope that the Minister will see his way to accept the suggestion that has been made by the noble Lord, Lord Foot, and perhaps even go further in regard to the point made by my noble and learned friend, Lord Gardiner? I do not think for a

moment that it was intended—I do not see how it possibly could have been intended—that the statement of a person other than the person concerned himself in the question of deportation could be used in evidence against an individual when that person may have known nothing at all about it. He may be in no way connected with that person himself, other than the fact that somebody at some stage said something which cannot be denied, or should not be denied, by him, and this would make that statement one which must not be denied by anyone else. I think it would be an absurd position and I am sure your Lordships will think the same. I appeal to the Minister to consider this position and even to go further. As your Lordships know, we have very strong views in regard to deportation, and certainly the deportation of families. At least we should not place the onus on an individual who himself may have had nothing to do with statements that were made.

9.27 p.m.


I am grateful for the general comments in support of the appeal system which the noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Foot have made. Perhaps there is a point of detail, though of importance, that I should make before going on to the central point. The noble and learned Lord, Lord Gardiner, implied that there was no right of appeal in conducive cases from the decision of the immigration officer. That is not so, for under paragraph 61B of Cmnd. 4606 an appeal will lie where the immigration officer refuses somebody entrance to the country and leave to land on non-conducive grounds. It is only in the cases which we have been discussing earlier this evening and last week, where the Secretary of State himself takes the decision that there is no right of appeal; it has to be the decision of the Secretary of State. Since that narrowing down is not contained in the Statute, the action of the immigration officer is open to appeal, for it is an action of some importance.

The noble and learned Lord, Lord Gardiner also asked about change of circumstances. If a woman now divorced came in as a wife, or claimed to be a wife and has since been divorced, she would no longer be regarded as a member of the family, as defined in Clause 5(4), because she would no longer be the man's wife. So the governing words would be the first words in the new subsection (7)"against a person as belonging to the family ".


Is not this the issue: that if the man said when he came in,"This woman A is my wife ", B would be precluded from disputing that that statement was true? It is simply that, as the provision is worded, no allowance is made for a change of circumstances since the date when the statement was made.


I think we ought to leave on the Record that the definition of"family"is going to be important. The definition is a long way back in the Bill and there is a part of the Bill, carefully set out, which determines the family group. We have to remember that the children, when they have gone beyond the age of 18 will cease to be members of the family group. So this provision will then no longer bite. What the noble Lord, Lord Foot, and the noble and learned Lord, Lord Gardiner—


I am sorry, but may I interrupt on a point of detail which I did not grasp? Suppose the man, when he entered this country, said,"This woman is my wife"when in fact she was not. Presumably on appeal she could surely say,"I never was his wife. Although he said I was, I am not his wife and never have been." What happens to her then?


That is the exact point to which I was about to address myself, and I hope that I shall be able to help the Committee. It is the position of the wife and the children (the noble Lord, Lord Foot gave me warning of this) to which he and the noble and learned Lord, Lord Gardiner have addressed our minds. I must say that when I first heard of the noble Lord's concern I shared it entirely; on the face of it, this seems a strange provision. But I have looked into it and, as is often the way in drafting legislation, there is a good reason for it, though one which is not apparent and which needs to be explained. This matter was debated in another place at considerable length. A similar Amendment was put down by the Liberal Party and pressed to a Division. The Opposition put down an Amendment, which, after an explanation given by one of my colleagues, was withdrawn.

The problem here is of a man or woman who enters as a dependant under false pretences, whether the false pretence is within his own knowledge or not. We are concerned first and foremost with the status of the dependant in immigration law. As regards the controls, the special power to deport members of families has been taken because wives and children who have entered the country, not in virtue of any right of their own but as dependants, cannot have any claim to stay if the person, as whose dependant they entered, has himself been deported. This is provided in Clause 3(5)(c), and persons regarded as belonging to a family are defined in Clause 5(4).

If a genuine dependant has no claim to stay, we must ask ourselves how the false dependant can have a claim to do so. If a false dependant can have no claim to stay, what would be the purpose of allowing him to establish that he is a false dependant and gained entry only because the immigration authorities were deceived? To allow a false dependant to try to establish that he is a false dependant would not only be contrary to legal principles, in allowing a person to profit from his own wrong or one committed on his behalf, but it would also hold out an incentive for all genuine dependants to claim that they are false as a means of escaping deportation. How could the Home Office prove that they are genuine, if they allege that they obtained entry by means of deception?

The noble Lord, Lord Foot, argued that in some cases the appellant might be a young child, who would not have this within his knowledge because he was too young to know of the deception. Why, it is said, should he then be punished? It is not a question of punishment, but simply of seeing that a person admitted as a false dependant as the result of a false claim is not put in a better position than the person who is admitted as a genuine dependant. A genuine dependant has no claim to be here at all if the head of the family is deported. If, however, there are companionate circumstances, based on long residence or the education of children or circumstances of this sort, which we have already debated, the Secretary of State will want to take account of them.

The arguments that I have mentioned seem to us to override the objections to the extension of the estoppel, to which the noble and learned Lord referred, to cover the statements not made by the person himself or his authorised agent. Often statements will have been made by someone with a financial interest in the deception. Whatever the common law ambit of estoppel, it remains true that Parliament can make a special provision in a particular sphere, as is proposed here, where it considers this to be justified. The difficulty here—this is what it all boils down to—is that if the genuine dependant, the actual dependant, of somebody is to be included in the family group, and has to go, surely it would not be consistent for somebody who has been admitted as a dependant although he is not really one to be able to put himself in a better position by denying that he is a dependant. These are the sound reasons which lie underneath what, on the face of it, seems a provision that it is difficult to understand.

9.36 p.m.


Obviously the Committee will wish to accept this Amendment, because the principle is naturally one with which we agree. We did not like to put down an Amendment to an Amendment which we had not yet had explained to us. I think that this particular point will have to be reconsidered on the Report stage, because, if I may say so with great respect, I have never heard so bad a degree of bureaucratic immorality as that to which we have just listened. Nobody but civil servants could have conceived of this. The position is perfectly simple. If a man comes into this country telling a lie, he ought not to be allowed to achieve any advantage from it. Of course, if he says,"This woman is my wife ", and he is let in on the faith of that statement, he ought not to be allowed afterwards, when me deportation order is in question, to say,"I told a lie, and I can now prove that in fact she is not." We are dealing with two cases. First, there is the case of the related family of people, of the woman who says:"My husband told you quite truthfully when we came in that I was his wife. Now there has been a divorce. We have both remarried. You have now served me with a deportation order as being my first husband's wife. Well, I am not. I am not his dependant either. I am now the wife and dependant of another man." It is absolutely monstrous, and quite immoral, that she should be sent away to some other country when she has not done anything wrong from start to finish; nor for that matter has her husband, who has told the truth, and all that has happened is that there has been a change of circumstances.

Equally, in the case put by the noble Lord, Lord Foot, of the child who comes here and when the man who brings him in tells a lie about him. The man ought not to be allowed to obtain any advantage from having told that lie. But the child is completely innocent. Supposing the fact is that a different Pakistani in this country is his father. Why should he be deported to a far country with this man who told a lie and not be allowed to stay with his father? For the time being, we must accept this Amendment; but we must return to the point on the Report stage of the Bill.


I should like to add just a word or two. I hope that the Minister will consider everything the noble and learned Lord has said, because the argument that the Minister was putting just now seems to me to be this:"We took a monstrous power in this Bill when we decided to take the power to deport members of a person's family when that person himself was deported, and having taken that wicked power we are not now going to put the non-dependant in a better position than the real dependant. We are going to carry on the injustice, and throw it over first upon the real dependant, and secondly upon the person who is not a dependant." I hope that the Minister will consider this matter again.

The trouble with the Government on this particular clause, as it seems to me, is that they have set their feet upon the slippery slope of punishing by deportation a person who is a member of the family of a person who is being deported, and having got themselves into that hopeless situation, they are now forced into these absurd solutions that the noble Lord has presented to us. It is quite incredible to suggest that when you deport a person because he is not fit to be in this country, and you decide at the same time that you must get rid of the people who are members of his family, you should then go on arbitrarily to send out of the country with him somebody that he has nothing to do with, to whom he is not related, who is not dependent upon him, because that person made a false statement about him when he originally came in. I hope the Government will look at this again.


Before this Amendment is agreed to, might I say just a word regarding the last speech of the noble and learned Lord, Lord Gardiner. As regards the second class of case which he mentioned—the child who was passed in as a real child but who turns out not to be—having listened to the debate, I am inclined to think that it is the Opposition who are arguing for an act of injustice and that justice lies on the Government's side. But I quite agree that one cannot fully take in all the pros and cons in a short debate like this. It would be well worth while for all of us to read the debate afterwards and reconsider it.

As regards the former case, I hope that on further consideration the noble and learned Lord will accept what my noble friend has said, because I cannot see how deportation proceedings can be taken against a woman as the wife of a deportee if she establishes that she is not the wife. Subsection (4) of Clause 5 seems to state quite clearly that it is only a man's wife and not any alleged wives of his who can be deported: nor can any divorced wives of his be deported. If a woman, seeking to defend herself against deportation, proves that she has been divorced from a man who is to be deported, she can surely establish that proof without coming within the rebuttal of this new subsection (7). She is not concerned to prove that she was not his wife at some previous date when he entered the country, but she is surely concerned to show that because of divorce she is not his wife at the present time; and if she proves that she cannot be liable for deportation because subsection (4) of Clause 5 shows quite clearly that it is only the man's wife who can be deported.


As a last word on this, this is not the crucial case. The crucial case concerns a man who brings somebody in and says that she is his wife when she is not, and she goes off and lives happily for twenty years with somebody else. He then commits a crime and is deported, and she goes with him.


It may be that in addition to all these problems there is a problem of semantics arising. Some of our immigrants come from Bengal, and the Bengalis have a curious set of relations which they call"cousin brothers ". I have never been able to unravel just what that relationship is, but it appears to me that there is a possibility of an immigrant arriving, making a statement which from his sparse knowledge of the English language he might consider to be true, but at some time later when he knows English better he may realise that he has made a false declaration.

On Question, Amendment agreed to.

Clause 15, as amended, agreed to.

9.45 p.m.

LORD GARDINER moved Amendment No. 92:

After Clause 15, insert the following new clause: Provision for inquiry in cases where no appeal lies against deportation order .—(1) Where the Secretary of State has decided to make a deportation order and no appeal lies by virtue of the provisions of this Act against such decision, any person aggrieved by such decision may within a period of twenty-eight days (or such longer period as the Secretary of State may allow) of service upon him of notice of the said decision make representations to the Secretary of State against the making of a deportation order. (2) In any case where such representations are made then unless the Secretary of State certifies that he is satisfied that there are no prima facie grounds for holding an inquiry he shall appoint one or more persons to hold an inquiry and to report to him anti pending such report he shall not make the deportation order. (3) The Secretary of State shall direct whether the inquiry or any part thereof is to be held in private or in the absence of any persons specified by name or description and the person appointed shall comply with such directions. (4) The person appointed shall report to the Secretary of State and such report shall not be published in whole or in part without the authority of the Secretary of State. (5) The provisions of paragraph 2 of Schedule 3 to this Act shall apply to a person to whom notice has been given under this section as they apply to a person to whom notice has been given under section 18 of this Act. (6) A notice given under this section shall inform the person to whom it is given of his rights under this section.".

The noble and learned Lord said: The object of this important Amendment is to consider what should happen when there is a question of deportation by the Home Secretary on non-conducive grounds. At the moment the Bill contains no right of appeal at all. The Home Secretary has intimated that he proposes in these cases to have an administrative non-statutory appeal to the"Three Wise Men"in accordance with the procedure adopted in the case of civil servants and security cases. He has said that this has been satisfactory in those cases and therefore this ought to be regarded as satisfactory. One of the difficulties about leaving something to be purely administrative is that nobody has any legal rights at all, and you never quite know where you are. I understand that in relation to all statutory appeals the Government will probably be prepared to accept the proposition that there ought to be a right of legal representation. In anything that is administrative and completely non-statutory there can be no right to that because there is no right to anything at all. At the moment the Government do not propose that in those cases there should be any right of legal representation.

The object of this Amendment is to cover those cases of deportation orders for which no appeal is at present provided and to provide a statutory right of appeal which, I hope, safeguards all the provisions which the Home Secretary could want. If I may read it, the new clause says: (1) Where the Secretary of State has decided to make a deportation order and no appeal lies by virtue of the provisions of this Act against such decision, any person aggrieved by such decision may within a perod of twenty-eight days (or such longer period as the Secretary of State may allow) of service upon him of notice of the said decision make representations to the Secretary of State against the making of a deportation order. (2) In any case where such representations are made then unless the Secretary of State certifies that he is satisfied that there are no prima facie grounds for holding an inquiry he shall appoint one or more persons to hold an inquiry and to report to him and pending such report he shall not make the deportation order. In the first place this enables the Secretary of State to hold an inquiry of one or more persons—the"Three Wise Men "—but provides that he need not do so if he thinks that there is no prima facie case. The new clause continues: (3) The Secretary of State shall direct whether the inquiry or any part thereof is to be held in private or in the absence of any persons specified by name or description and the person appointed shall comply with such directions. Here the Secretary of State is given full power to decide whether the"Three Wise Men"are to sit in private; whether other people, and if so who, are to be present or absent. The clause continues: (4) The person appointed shall report to the Secretary of State and such report shall not be published in whole or in part without the authority of the Secretary of State. (5) The provisions of paragraph 2 of Schedule 3 to this Act shall apply to a person to whom notice has been given under this section as they apply to a person to whom notice has been given under section 18 of this Act. (6) A notice given under this section shall inform the person to whom it is given of his rights under this section.

It appears to us that this is a statutory form of the"Three Wise Men"procedure giving the Home Secretary all the powers and rights that he could possibly want. All it provides for is that there shall be an appeal unless the Secretary of State thinks there is no prima facie ground; there will be an inquiry. It is for the Home Secretary to appoint the"Three Wise Men ", and to decide whether or not it is to be held in private or in the absence of certain persons. Their Report will not be published unless the Secretary of State agrees that it should be published. It seems to safeguard all the matters to which the Home Secretary referred in the other place. What he said about what he was going to do administratively was extremely short and without any real precision. We feel it would be much more satisfactory that this should be statutory, provided that it gives the Government every safeguard for which they could reasonably ask, and it is submitted that this new clause does so. I beg to move.


This Amendment, as the noble and learned Lord has explained to the Committee, seeks to make provision for the holding of art inquiry, unless the Secretary of State is satisfied that there are no prima facie grounds for one, whenever the Home Secretary has decided to make a deportation order and no appeal lies under the Bill. A similar Amendment was moved by the noble and learned Lord's Party at Report stage in another place and was discussed with the Government Amendments which provide a right of appeal against a decision to deport someone on not conducive grounds except in security and political cases. As I explained on the last Amendment, these are personal decisions of the Secretary of State and not of officials acting on his behalf. Under Clause 15 as it was amended on Report stage in another place there is a right of appeal against the making of a deportation order save only where the Secretary of State has decided to make the order on the grounds that the person's departure from the United Kingdom would be conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature. We debated at some length the meaning of those words on an earlier Amendment this evening. Accordingly this Amendment would cover only the security and the political cases.

I must say that we have had time to study this Amendment—it was tabled in another place, and it has been on the Marshalled List for some weeks now—and it does not seem to us to provide the most satisfactory way of doing this. Although it would make statutory provision for an inquiry in such cases, it would be entirely for the Secretary of State himself to decide whether any inquiry should be held and whether the inquiry or any part of it was to be held in private or in the absence of the person proposed to be deported and his representatives. The report by the person appointed to hold the inquiry would not be published without the authority of the Secretary of State. This would really put the Secretary of State into the position of appointing an inquiry into his own actions. The deportation orders are made by personal decision of the Home Secretary, as I have said, and to put a Minister in this sort of position would leave him with some extremely difficult decisions to make.

As I have explained on earlier Amendments, the Home Secretary proposes to set up a non-statutory advisory procedure for political and security cases modelled on the lines of the procedure for security cases in the Civil Service. The noble Lord suggested that what the Home Secretary said was rather short and generalised. I think that comment could perhaps have been applied to the brief description he gave in Standing Committee, but I do not think it could be applied to what he said on Report. The reason why I have not quoted it is that it does occupy the best part of two columns of Hansard, cols. 376/7 of 15th June. What the Home Secretary had in mind he explained in some detail on that occasion. He emphasised the Government's view that decisions of this sort did not involve justiciable issues, and should be subject to Parliament rather than to any statutory advisory procedure.

What the Home Secretary said on that point—I can quote the last passage on the statutory procedure as against the non-statutory one recommended in another place—was: I recommend it "— the"Three Wise Men"procedure— to the House as the best possible system we can adopt in what is inevitably a difficult case. We have to reconcile the needs of national security with the proper rights of the individual to protect himself. It is a better procedure than the statutory device of the Amendment put forward by the Opposition. I am not sure that it is wise to put this in statutory form. In effect, it means importing once again into this matter a justiciable issue, whereas the whole basis of my philosophy is that these are decisions of a political and executive character which should be subject to Parliament and not subject to courts, arbitrators, and so on."[OFFICIAL REPORT, Commons; 15/6/71, col. 377] The proposal contained in the Amendment of the noble and learned Lord, Lord Gardiner, would present no advantage in practice over the arrangements the Government intend to introduce. While purporting to oblige the Secretary of State to subject himself to advisory procedure, it would nullify this by saying that he alone is to decide whether there are grounds for inquiry in a political case. I accept that there is room for differences of opinion, but we believe that the procedure that the Home Secretary has outlined is the most appropriate way of dealing with what are, and are always going to be, political decisions; that he should answer for these to Parliament, and that he should take advice before doing so.


This is very unsatisfactory. It is always the administrator's argument,"Leave everything to me in matters of administration ". I hope it is not only lawyers who think it is better if things have a legal framework. In this Amendment we have done everything for the Home Secretary which he would want to do administratively, but, instead of being purely administration, it would have a legal framework. The only right we have provided for the proposed deportee is the right to make representations. We have provided that if the Home Secretary thinks there is no prima facie case he need not have an inquiry; if he thinks there is a prima facie case, then we have provided for the"Three Wise Men ". We have provided that it is a matter for them, and not the deportee, whether they sit in public or in private, who is to be admitted, who is not to be admitted. They are to report to the Home Secretary. The report will not be published without his consent; he retains the last word.

This is exactly the"Three Wise Men"procedure spelled out, except that it is given a legal framework instead of being left as a matter of pure administration, which one Home Secretary can change the day after another Home Secretary has decided it. I hope that the Minister may be prepared to say that, before Report stage, the Government will give this matter further consideration; otherwise, I shall respectfully ask the Committee to consider the matter.


I am sorry but I cannot help the noble and learned Lord any further. As he will know from studying the proceedings in another place, this is a matter which was much discussed and received a great deal of attention. I would question the observation that this provision is convenient for administrative reasons. He will see that the Home Secretary said on a number of occasions that this was a solution of his own, and he was speaking as a Parliamentarian. He feels strongly that the correct way is to give the Minister discretion in cases of national security or these very special political cases: to make a senior Minister responsible, and for Parliament to hold him accountable; and that to try to put outside this some quasi-legal framework which is to review his own discretion will lead to problems of the kind we have seen in the case we debated earlier this evening. So I am afraid it is not possible

Clause 16 agreed to.

Clause 17 [Appeals against removal on objection to destination]:

10.6 p.m.


This is the Amendment to which the noble Lord, Lord Windlesham, referred, and it arises out of the Government's acceptance of the right of appeal for family deportations. I beg to move.

Amendment moved. Page 18, line 42, leave out subsection (6).—(Lord Gardiner.)


As the noble Lord, Lord Gardiner, has correctly said, this is a further consequential Amendment relating to the appeals on family for me to add to what I have said in reply to the noble and learned Lord; and if he wishes the Committee to take a decision, so be it.

9.58 p.m.

On Question, Whether the said Amendment (No. 92) shall by agreed to?

Their Lordships divided: Contents, 19; Not-Contents, 60.

Beswick, L. Greenwood of Rossendale, L. Rusholme, L.
Brockway, L. Hoy, L. St. Davids, V.
Champion, L. Janner, L. Segal, L.
Davies of Leek, L. Listowel, H. Shackleton, L.
Donaldson of Kingsbridge, L. Llewelyn-Davies of Hastoe, Bs. [Teller.] White, Bs.
Gardiner, L. Wynne-Jones, L.
Garnsworthy, L. Phillips, Bs. [Teller.]
Aberdare, L. Daventry, V. Massereene and Ferrard, V.
Auckland, L. Denham, L. [Teller.] Monk Bretton, L.
Balerno, L. Digby, L. Mowbray and Stourton, L. [Teller.]
Balfour, E. Drumalbyn, L.
Barnby, L. Emmet of Amberley, Bs. Moyne, L.
Belhaven and Stenton, L. Falkland, V. Napier and Ettrick, L.
Belstead, L. Ferrers, E. Nugent of Guildford, L.
Berkeley, Bs. Fortescue, E. Orr-Ewing, L.
Bessborough, E. Fraser of Lonsdale, L. Redmayne, L.
Birdwood, L. Gowrie, E. St. Aldwyn, E.
Brooke of Cumnor, L. Gray, L. St. Helens, L.
Brooke of Ystradfellte, Bs. Grenfell, L. St. Just, L.
Burton, L. Grimston of Westbury, L. St. Oswald, L.
Carrington, L. Hailes, L. Sandford, L.
Colville of Culross, V. Hailsham of Saint Marylebone, L. (L. Chancellor.) Sandys, L.
Conesford, L. Sempill, Ly.
Cork and Orrery, E. Ilford, L. Terrington, L.
Craigavon, V. Latymer, L. Tweedsmuir, L.
Craigmyle, L. Lothian, M. Vivian, L.
Cranbrook, E. Lyell, L. Windlesham, L.
Cullen of Ashbourne, L. Macpherson of Drumochter, L.

Resolved in the negative, and Amendment disagreed to accordingly.

deportations, and I am glad to support it.

On Question, Amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 [Notice of matters in respect of which there are rights of appeal]:

LORD FOOT moved Amendment No. 95: Page 19, line 23, leave out (" conclusive ") and insert (" prima facie evidence ").

The noble Lord said: I beg to move Amendment No. 95, and I really want only to raise a query as to the exact effect of subsection (2) of Clause 18. The first subsection of Clause 18 provides that in certain circumstances: The Secretary of State may by regulations provide—

  1. (a) for written notice to be given to a person of any such decision or action 939 taken in respect of him as is appealable under this Part of this Act…"
and it goes on to provide what must be set out in the notice. When you come to subsection (2) you find that it says: For the purpose of any proceedings under this Part of this Act a statement included in a notice in pursuance of regulations under this section shall be conclusive of the person by whom and of the ground on which any decision or action was taken. I raise no question about the notice being conclusive of the person by whom the decision was taken, but I do ask what is the exact effect of the words that the notice"shall be conclusive"as to the ground on which it was taken. May I take a simple example? Take a case where a deportation order is made on the ground that a person has been convicted of a criminal offence and has been recommended by the court for deportation. Supposing that that person says,"It was not I who was convicted ", and then a notice is issued under the regulations, saying that the notice is issued by the Secretary of State, and that it is issued on the ground that that person has been convicted of a criminal offence and has been recommended for deportation, does this subsection, saying that the notice shall be conclusive as to the ground on which the decision or the action was taken, preclude the adjudicator, or the Appeal Tribunal, from looking behind the motives as to whether indeed it was this particular person who was so convicted and so recommended for deportation? I am merely asking for information. There is nothing sinister in the question I am asking. I should like the Minister to tell me whether that is a possible interpretation. If it is a possible interpretation, would not the difficulty be overcome by doing what our Amendment proposes, and that is to substitute for the word"conclusive"the words " prima facie " evidence.

10.12 p.m.


Under Clauses 13(5) and 15(5) the fact that the Secretary of State personally has decided that the exclusion of a person from the United Kingdom is conducive to the public good is a bar to any appeal. Under Clauses 14(3) and 15(3), the fact that the Secretary of State has personally decided that the departure or deportation of a person is conducive to the public good, as being in the interests of national security, or of the relations between the United Kingdom and any other country, or for any other reasons of a political nature, is likewise a bar to a statutory appeal against the decision. It is therefore necessary that any decision as to exclusion, departure or deportation should be readily identifiable, both by the person affected and by the appellate authorities, as one which either does or does not give rise to a right of appeal.

The purpose of Clause 18(2) (to which the noble Lord's Amendment refers), is accordingly to enable a decision which is not subject to appeal to be identified by the terms of the notice of decision, and to make this identification conclusive. Whether the decision has been taken by the Home Secretary personally, and, if so, for what reasons, are matters peculiarly within the knowledge of the Home Secretary. We are not sure that the Amendment would achieve what the noble Lord, Lord Foot, wants it to achieve. If it were accepted, it would be open to a would-be appellant to challenge the statement in the notice of decision, and to maintain either that the decision had not been taken by the Secretary of State or that the reasons given were not the true ones. He would have to bring forward some evidence of his own to support his challenge, and it is difficult to see what this could be. But it seems undesirable that a would-be appellant should have an opportunity to try to circumvent the restrictions on rights of appeal by disputing the reasons for the decision, or the fact that it was taken by the Secretary of State personally. This is most evident in relation to security cases, where any inquiry by the appellate authorities into the process by which the decision was reached would be inappropriate, and contrary to Parliament's intention in excluding such cases from the appeals system.

As regards the whole range of the conducive cases, so far as they are excluded from the appeal system, the intention is, as I have explained, that the Home Secretary should be answerable for his decisions to Parliament. It would be inconsistent to allow either his statement of personal responsibility, or his reasons, to be called into question before the appellate authorities. Subject to further advice, I do not think that the specific case the noble Lord referred to would arise here. What we are concerned with are those grounds, the non-conducive grounds, which do not carry with them a right of appeal. I speak subject to correction on this. I should like to check the point and come back to the noble Lord on it. But I think that we are discussing here whether or not the Home Secretary had grounds of a political or a security nature, and it is these that would not be open to challenge if the word"conclusive"were left out of the clause.


I am very grateful to the noble Lord for that explanation. I am not, I am afraid, entirely satisfied, because as I read Clause 18 it appears to deal with appeals generally. It does not appear to be limited to appeals in conducive cases. It appears to relate to any case where a person has a right of appeal, and subsection (1) states: The Secretary of State may by regulations provide—

  1. (a) for written notice to be given to a person of any such decision or action taken in respect of him as is appealable under this Part of this Act."
Therefore, I cannot see why subsection (2), which includes the word"conclusive ", should limit this to the two questions of whether the Secretary of State personally made the decision, and whether the decision was on conducive grounds. I shall not detain the Committee any longer, but I shall study carefully what the noble Lord has said and perhaps he, in return, will look at what I have said.


Yes, I will gladly do that. I think that would be the best way of resolving this debate.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD BROCKWAY had given Notice of Amendment No. 95A: Page 19, line 26, leave out (' any ") and insert (" a draft of the ").

The noble Lord said: Amendments Nos. 95A and 95B refer to the issue which has previously been raised, of whether Parliament should have negative annulment or positive approval. Since we shall be referring to this on the Report stage, I ask the leave of the Committee not to move this Amendment.

Clause 18 agreed to.

Clause 19 [Determination of appeals by adjudicators]:

10.18 p.m.

LORD BROCKWAY moved Amendment No. 95C:

Page 19, line 40, after (" differently ") insert— (" or (iii) in all the circumstances of the case he feels it jug and equitable so to do.")

The noble Lord said: This Amendment refers to a subsection which will permit the adjudicator to allow an appeal if he considers two items, to which I want to add a third. I am proposing this addition because there may be many cases where, technically, there will be a fault but where there are circumstances which make the illegality morally excusable and perhaps even justifiable. These arise from difficulties about language, circumstances and other considerations. This may particularly be the case where a person has been resident in this country for a considerable period, even though illegally; and all this Amendment seeks to do is to give the adjudicator power to consider the other circumstances which are in my Amendment. I beg to move.


I think that the noble Lord's Amendment would go a good deal wider than it would appear, from the speech he has just made, that he intends. Clause 19(1)(a) sets out the circumstances in which an adjudicator is to allow an appeal; that is, where he considers that the decision in question was contrary to law or to the Immigration Rules, or, if the decision involved an exercise of discretion within the Rules, that the discretion should have been exercised differently. The Amendment which the noble Lord has just moved would permit an adjudicator to allow an appeal, even if these conditions were not satisfied, if in all the circumstances of the case he felt it just and equitable to do so.

Clause 19(1)(a) is in the same terms as Section 8(1)(a) of the Immigration Appeals Act 1969, which in its turn was based on the recommendations made by the Wilson Committee in paragraphs 139 to 142 of their Report. The Wilson Committee summed up the effect of their recommendations as to the type of decision that the adjudicators could reach under the review in the following words: The scheme we have outlined will leave the Home Secretary with the power (and the corresponding responsibility) to formulate within the limits allowed him by statute the rules governing immigration control and so to determine the policy to be applied in its administration. At the same time the question whether a decision under appeal does or does not conform to the rules in which this policy is expressed will give rise to a justiciable issue appropriate for decision under an appellate process by an impartial tribunal: some degree of discretion will be entrusted to the appellate authorities, but no greater than is normally thought compatible with the exercise of judicial functions. This Amendment would run counter to the delicate balance of the Wilson Committee's scheme by, in effect, allowing an adjudicator complete discretion to override the application of the Immigration Rules to particular cases whenever he thought it appropriate to do so. This is not a power which should properly be given to an administrative tribunal. It must remain with the Home Secretary, who exercises it, subject to his responsibility to Parliament, for the general effectiveness of immigration control. If the appellate authorities had power to dispense in particular cases from the provisions of any general rule that the Home Secretary might lay down, he could no longer be said to be answerable to Parliament for the effective operation of the control.

It is now, and will continue to be, open to the appellate authorities to bring to the notice of my right honourable friend any instance in which they consider that the operation of the Immigration Rules is producing unjust or oppressive results, and it goes without saying that any such representations would be most carefully considered. But to go further, as the Amendment would, and to allow the appellate authorities to waive the application of a rule in accordance with their views as to the merits of a case would detract from their position of neutrality and impartiality. Moreover, it would be likely to lead to some inconsistency in deciding appeals, and so to uncertainty about what treatment an immigrant could expect to receive under the published immigration Rules.


While I can well understand that the Government cannot go as far as the noble Lord, Lord Brockway, would like them to go in inserting this new subparagraph, I should like to ask the Minister about the words of paragraph (a)(ii); namely, where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently;… The difficulty I want to draw attention to is that when one comes to look at the Draft Immigration Rules, and particularly at the Rules as they apply to visitors and to students, they are, I think, very largely a reproduction of the existing rules. But when one looks at these Rules one finds recurring over and over again the words"if he (the applicant) satisfies the immigration officer"or"if the immigration officer is satisfied"or"if the immigration officer is not satisfied"and so on.

May I take the first of them? This deals with visitors. A person seeking entry as a visitor is to be admitted if he satisfies the immigration officer that he is genuinely seeking entry for the period of his visit as stated by him and so on. The question is (and I think it is a question which has not been resolved before the Appeal Tribunal): if an immigration officer examining a visitor is not satisfied that that visitor is genuinely seeking entry, is he, the immigration officer, then exercising a discretion which can be reviewed by the adjudicator, or is the position that when there is an appeal lodged against the refusal he goes to the adjudicator—and says,"I was not satisfied "?

Take the case of a student. The Rule says: A passenger seeking admission as a student is to be refused leave to enter if the immigration officer has reason to believe that his true purpose is to seek employment and if the officer is not satisfied that the passenger is able and intends to follow a full-time course of study… He must refuse. When he refuses a student in these circumstances, because he is not satisfied with what the student has said to him and the representations the student has made, is he then exercising a discretion which can be reviewed by the adjudicator or not? That is the point which I think remains unresolved as the law stands at the moment. That, I imagine, is the sort of uncertainty with which Lord Brockway is concerned.

Possibly the Minister will say that if I cast my eyes lower down, as far as Clause 19(2), I shall see: For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based;… I do not know whether the Minister is likely to say that that is the answer. I doubt whether it is; because when the adjudicator examining a student tries to make up his mind whether he is satisfied that this student is genuinely coming into this country to pursue a course of study, he is not resolving a question of fact; he is trying to use his own judgment as to whether this person is genuine or not. If that is all he is doing I do not see what question of fact there is for review by the adjudicator in circumstances of that kind.


I should like to put one short question. We are all in some difficulty in trying to relate the provisions of the Bill to the Rules because we are told that the Rules are in process of being completely re-written. When shall we have the written version of the Rules? Can I take it that we shall have that at least one week before we resume in October?


I do not think it would be right to assume that the Rules are being re-written. There are some additions to make to the Rules. We have been discussing one particular example relating to family deportation, and I mentioned the sort of considerations that were in our minds. There are also some deletions which have been specifically explained. One relates to the dependants of those already established here. Under it, the head of the family will no longer have to show that he has the financial ability to support them. The Home Secretary said that he intends to change this requirement in the Immigration Rules. But I think it would be misleading the Committee to suggest that there is to be any large-scale rewriting of the rules.

The noble Lord, Lord Foot, asked about the meaning of the word"satisfied"in the Immigration Rules. He referred in particular to Rules 15 to 21 of Cmnd. 4606, relating to visitors and students."Satisfaction"on the part of the immigration officer involves the determination of a question of fact within the meaning of Clause 19(2) and so is open to review by the appellate authorities. I know from personal experience that in both the instances the noble Lord gave—that of the visitor seeking entry when the immigration officer believes that his true intention is to settle in this country and that of the student who there may be some reason to think is coming not to follow a course but to stay here for work and settlement—the decisions by the immigration officer would give rise to appeal. Where I think we diverge in debating Lord Brockway's Amendment is on the exercise of discretion within the rules and on the way in which the immigration officer interprets the rules. That exercise of discretion is covered in this clause, but what the Amendment would do would be to say that the appellant authorities would be able, if they thought it"equitable"(that is the word in the Amendment) to set aside the rule itself. But we think this would be going too far.


I greatly appreciate the contribution made by the noble Lord, Lord Foot. I hope very much that the Rules may be amended before we reach Report stage. In view of the possibility of raising this matter again, I now beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.32 p.m.

LORD BROCKWAY moved Amendment No. 95D: Page 20, line 1, leave out from (" based ") to end of line 7.

The noble Lord said: This Amendment refers to subsection (2) in which the right of the Secretary of State to exercise discretion is restricted. I submit that this restriction may have far-reaching effects. It will prevent an applicant—this may occur in many cases—declaring that the Home Secretary should have exercised his discretion differently. The Home Secretary in such cases may argue that the appellant has merely asked him to depart from the rules and the Home Secretary's refusal will then not be regarded as an exercise of discretion. I hope very much that the Minister will look at this point, because it seems to be a restriction which may go beyond what is intended in this subsection. I hope that he may be able to reconsider the words used. I beg to move.


The words which this Amendment would delete from Clause 19(2) provide that a refusal by the Secretary of State to depart from the Immigration Rules is not to be treated for the purpose of Clause 19(1)(b) as an exercise of discretion by the Secretary of State so as to enable an adjudicator to decide in appeal proceedings that the discretion should have been exercised differently. The effect of deleting the words which the noble Lord, Lord Brockway has proposed would be to enable the adjudicator to do this, because this provision in the Bill is based on an express recommendation by the Wilson Committee, which spent a long time considering the most appropriate form of an immigration appeal system and how it should operate once it was set up. In paragraph 140, the Committee had this to say: We therefore recommend that where the general rules leave scope for the exercise of discretion by the Home Office the same discretion should be open to the appellate authorities. Where however a rule leaves no room for discretion, the appellate authorities should have no power to waive its application in a particular case. A similar provision is contained at present in Section 8(2) of the Immigration Appeals Act 1969 and in Article 7(2) of the Aliens (Appeals) Order 1970. The effect is that, where the Immigration Rules leave the Secretary of State or one of his officers with a discretion in a particular type of case, the exercise of that discretion is open to review by the appellate authorities on the merits. Whenever the Rules for Control on Entry provide for admission in certain cases on compassionate grounds or on grounds of hardship, an exercise of discretion is involved. These are cases in which discretion is exercised within the Rules.

There are also cases from time to time in which a person seeks to be admitted or to be allowed to stay in this country although he has no entitlement to do so under any provision of the immigration Rules. In a case of this sort, his request can be granted only if the Secretary of State is prepared to depart from the Rules exceptionally. It is right that the Secretary of State, as the Minister responsible to Parliament for the enforcement of immigration control, should have power to make exceptions to the Rules when he considers this to be justified by the exceptional circumstances of a particular case. But to give a similar dispensing power to the appellate authorities would be inconsistent with their status as judicial bodies, and would result in the power being exercisable without accountability to Parliament. We believe that it is better to adhere, as the Bill does, to the carefully considered recommendations of the Wilson Committee on this matter.


I appreciate deeply the reply which the Minister has given. I would like to consider it, and meanwhile beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD WINDLESHAM moved Amendment No. 96: Page 20, line 16, leave out (" (3)").

The noble Lord said: This Amendment is consequential on Amendment 80 and others in the series concerning appeals in cases of family deportation. I beg to move.

On Question, Amendment agreed to.

Clause 19, as amended, agreed to.

Clause 20 agreed to.

Clause 21 [References of cases for further consideration]:

LORD WINDLESHAM moved Amendment No. 97: Page 20, line 44, leave out (" (3) ").

The noble Lord said: This Amendment is also consequential on Amendment No. 80 and the others in the series. I beg to move.

On Question, Amendment agreed to.

Clause 21, as amended, agreed to.

Clause 22 [Procedure]:

10.40 p.m.

LORD FOOT moved Amendment No. 98: Page 21, line 18, leave out from (" thereunder ") to (" and ") in line 20.

The noble Lord said: My noble friends and I put down this Amendment with the object of questioning the provision that the burden of proof and admissibility of evidence can be altered by rule by the Secretary of State, because Clause 22 provides that the Secretary of State may make rules, among other things, for prescribing the practice and procedure to be followed on or in connection with appeals thereunder, including the mode and burden of proof and admissibility of evidence on such an appeal.

We were concerned whether it was really proper that the laws of this land about burden of proof, evidence, and so on, should be the bagatelle of the Secretary of State when he is writing rules. But since this Amendment was put down I have studied the Immigration Appeal Procedure Rules 1970, and I can see that there is some argument for giving the Secretary of State this power, because in some respects, and particularly in relation to the law of evidence, he has provided that under the rules certain kinds of evidence that would not ordinarily be admissible in a court of law shall be admissible in an appeal of this kind. I think that is desirable.

When it comes to the burden of proof, I can see that there are grounds for that. I do not know whether the noble and learned Lord, Lord Gardiner, might care to say that he thinks this is in order. If so, then I will willingly withdraw the Amendment. I beg to move.


I think this goes somewhat far, because you can change the effect of any legislation if you change the whole of the burden of proof. On the other hand, as this is a Bill put forward by a Ministry, they have already taken the precaution of putting the burden of proof on everybody but themselves, so I do not think it would have much effect.


I think perhaps this is the occasion for me to spare the Committee a long speech. The noble Lord, Lord Foot, has satisfied himself. For some reason or other, it has had a lukewarm welcome from the noble and learned Lord on the Front Bench opposite. I think we might leave it at that.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD GARDENER moved Amendment No. 99B: Page 22, line 34, leave out (" subject to annulment in pursuance of ") and insert (" approved by ").

The noble and learned Lord said: I suggested on Second Reading of the Bill that one of the deficiencies of the Bill was that it did not provide for any right of legal representation on appeal. I then said that I could never see what harm the right to legal representation does. Any county court judge, who is used to many cases with legal representation and many without legal representation, knows how much time is saved when there is legal representation, because those who appear know the points involved and they get on with the case. I said then that I hoped that that fact might meet with some support from the noble and learned Lord the Lord Chancellor. I rather gather that that may be so, and in this anticipated hope, I beg leave to move the Amendment.


When the Amendment originally appeared on the Marshalled List it was numbered 100, and I had hoped that we might be able to celebrate our century by accepting it. It has now turned into Amendment No. 98B, because the noble and learned Lord has suggested inserting it a little earlier part of subsection (3) of Clause 22. But that has not put us off. Indeed, we think from the drafting point of view that it is better put in as part of subsection (3); accordingly I would advise your Lordships to accept the Amendment.

On Question, Amendment agreed to.

LORD BROCKWAY moved Amendment No. 98A: Page 21, line 37, leave out subsection (3).

The noble Lord said: I hope that the Committee will give serious consideration to this Amendment. It proposes that we should omit subsection (3) of Clause 22. This Amendment raises the question of the very wide powers given to the Secretary of State to make regulations; and I have previously indicated my anxiety about these powers. Subsection (3) is especially objectionable because it maintains one of the most disturbing features of the Immigration Appeals Act in preventing an appellant or his representative from attending the hearing of a case when evidence is given against him.

This applies in two instances: first, where forgery of a document is alleged and, secondly, where the disclosure of methods of detection would be contrary to the public interest. In the first instance there is only an allegation, and I suggest to the Committee that there should not be a refusal to be present when only an allegation is made. That is contrary to the spirit of our justice. In the second instance, where disclosure of the method of detection may be contrary to public interest, in fact it is very rare indeed for the Home Office to give oral evidence at the hearing. Surely, if there is a forgery that fact can be proved without revealing the method of detection. If a forgery has been made clear in a number of documents concerning entrance to this country, for instance, and these documents are all registered, it seems to me completely unnecessary to suggest that the method of detection must be disclosed. It is so contrary to our whole method of justice that evidence should be heard in the absence of the alleged offender or of his representative, that I should like to ask the Minister whether there is any previous enactment which provides these restrictions, except the Act to which I have referred. It seems to me to be a breach of the rules of natural justice that a person may be penalised by evidence which he or his representative has not heard. Because this seems to me to be a fundamental right, I beg to move this Amendment.


Before the noble Lord replies, may I just say that I am a little puzzled by my noble friend's points. I want to be sure that I have them right. If somebody has a forged permit or passport he cannot have been"sold a pup "—he has no business to buy it at all; therefore he must be a party to the forgery. There cannot be any doubt about this: you get permits and passports from official quarters and not from people round the corner. I do not see why the people who say it is forged should show how they found out. I am tremendously on the side of my noble friend, generally speaking. I am anxious to support him, but I find it difficult. I do not know whether he can amplify the matter?


My noble friend has supported me. It is exactly the point that I am making; there is sufficient evidence and documents in the case to make it absolutely unnecessary for the method of detection to be revealed. That is a strong element in the case.

10.51 p.m.


Clause 22(3) relates only to forgeries of passports or other travel documents. The noble Lord, Lord Brockway, asked whether there were any precedents in law. I can tell him that in substance, the clause is the same as Section 9(3)(b) of the Immigration Appeals Act 1969, but I am not aware of any precedents before that date.


I mentioned that Act, and asked whether there were any previous precedents, and the Minister has now answered that there are not.


That is so, because the problem did not exist before the 'sixties. This is a problem associated with evasion of immigration control. The noble Lord knows well that since the 1962 Act there have been fairly large-scale attempts to evade the immigration controls. It is hardly surprising that the law in this matter is comparatively recent.


That is hardly the point. I am asking whether there is any indication in any Act that someone can be sentenced when evidence is given in court in his absence, or in the absence of a representative. That seems entirely new, except for the instance which the Minister has given.


As I say, I am not aware of any precedents, but there may be some. I should like to explain the reasons why this has been thought to be necessary, why the previous Government in 1969 thought that it was necessary, and why we are convinced that it is now necessary. The reason why it may be in the public interest (and I stress these words, for they are contained in the last lines of subsection (3) of the clause) to conceal from an appellant the method by which it is alleged that a forgery has been detected is that the provision of false documents for immigrants is a highly organised and lucrative trade in some countries, and our success in combating forgeries bears largely in keeping the forgers in ignorance of the defects in their own methods. If these defects had to be specified in evidence given in the absence of the appellants, the information would soon be passed back to the organisers of the trade, thus enabling them to improve their methods of forgery.

It would not be sufficient, as this Amendment proposes, to exclude the Press and public from the hearings since the appellant himself, or his sponsor, who might be his representative, might well be an agent of the racketeers. I thought that the point of the noble Lord, Lord Donaldson of Kingsbridge, was one on my side rather than on Lord Brockway's side, although he turned it neatly to his own advantage in his reply.

I think that by definition there is bound to be an element of guilty knowledge, in that either the person concerned has obtained his passport on payment or through an agent, or he has obtained it from some official source. In some instances, the deduction of a false document or of a false entry in a genuine document, is based on the absence of certain safeguards in the form of recognition signals that have been deliberately incorporated into the design of the authentic document. If the nature of these safeguards had to be disclosed they would then become valueless. There are also ways of detecting that passports have been altered that could be countered if they were known to the forgers.

As the noble Lord, Lord Brockway, very fairly said, this is not the first time that concern has been expressed about this matter. The problems that would arise if methods of detecting forgeries had to be disclosed were first brought to notice in another place on the Second Reading of the Immigration Appeals Bill in January, 1969. The then Parliamentary Under-Secretary of State in the previous Administration, Mr. Merlyn Rees, promised to consider the matter; but after he had done so the conclusion of the previous Government was that the only solution was to enable evidence of this kind to be given to the adjudicator or to the tribunal in the absence of the appellant or his representative. To be quite fair, the previous Government made it clear that they put this idea forward with reluctance, and in the belief that there was no other way of dealing with this acknowledged and difficult problem; and this is our own attitude. We do not like this particular provision, but there is a real practical difficulty which I have explained to your Lordships. The previous Government overcame it and we think it right to continue with the law as it is.


I have the next Amendment down which relates to this point so perhaps I may shorten the proceedings if I speak on this Amendment. I do not think the noble Lord is quite right in saying that there are no precedents for legislation of this kind because there have never been any reasons for it until now. We are dealing with a question of forgery, and the noble Lord says,"Oh, well, it would be very dangerous to allow the party concerned, or his representative, to learn how we discovered the forgery, as that would then be relayed back to the country of origin and the people engaged in this business of forging documents would be able to amend their methods." But this state of affairs has existed for a very long time. I imagine that when anybody is charged at the Old Bailey with forging bank notes it is important not to disclose to the person charged or to his representatives how the forgery was discovered. It may be a matter of considerable national importance that that should not be disclosed. But we do not turn the accused person out of court; we do not refuse him the opportunity of challenging the evidence against him. It is a serious step to do it in the case of immigration when we do not apply it in the case of forgery involving money.

Or take a case involving national security, where a person is charged under the Official Secrets Act. Often it may be highly desirable in the public interest that not only should the proceedings be held in camera but that, if possible, the accused person and his representatives should be excluded from the court while certain evidence is being given—for instance, touching closely on national security and the revelation of which might be infinitely damaging to the national cause. But even in those cases we do not say to the accused:"No, you must be removed from the court; you shall have no opportunity of challenging this evidence in cross-examination." We take these risks in these cases. Why? Because we realise that there is here a question of balance between the public interest and the private right; and it is indeed a matter of public interest as well as private right that justice should be done and should be seen to be done. Why the balance should be tipped against the private right in favour of the so-called public interest when dealing with the forgery of passports as opposed to the forgery of bank notes I do not know. The noble Lord will see that in our Amendment we have not gone as far as the noble Lord, Lord Brockway. I sometimes think that I am more concerned with the art of the possible in politics and the noble Lord is more concerned with the art of the imaginable or the conceivable. But, as I say, we do not go anything like so far in our Amendment as he does in his. All we are asking is that where this issue about how a forgery was detected arises, those proceedings should be held in camera.

I well realise that that leaves open the possibility that the party concerned, or his representative, hearing the evidence given, may relay the information back to the country from which he came and it may be made use of there. But I should have thought that that is a risk we ought to be prepared to take in the interests of justice being seen to be done; a risk we do take in the case of ordinary forgery, and ought to be prepared to take in such a case as this. I should not have thought it was beyond the administrative capacity of the people who are issuing entry certificates, passports, and so on in other countries to use devices to thwart methods of forgery which have become well-known and may have become public knowledge. It is a serious issue that we should depart in this particular case from all the ways with which we deal with the administration of the criminal law in the ordinary way. Therefore, while I do not go so far as to support the noble Lord's Amendment, I should like to say these things in support of my own, and it will therefore not be necessary for me to speak to that Amendment in due course.


I have little to add to what I said, except this. Nobody has mentioned, perhaps for the first time this evening, the consequences of immigration policy on community relations. On previous days, sometimes on quite a number of Amendments, the noble Lord, Lord Wade, and the noble Lord, Lord Beaumont of Whitley, have several times raised considerations of community relations. I can assure noble Lords that one of the factors that has the worst possible effect on community relations in this country is the belief that large-scale illegal immigration is taking place and that very little is being done to stop it. Members of the previous Administration will not accept that very little is done to stop it, and nor will we. Special measures are taken in the Part of the Bill to which we are just coming and which concerns criminal proceedings and contains the new offence created by the Bill. But there is no doubt that this belief that illegal immigration takes place, and that we are willing to sit back, has a disastrous effect on race relations. We must do everything we can to ensure that the immigration laws laid down and approved by Parliament are observed. This is a very special provision and a special statutory procedure has been written into the Bill to explain the cases to which it applies.

The only other point which perhaps I should raise is that this is a power of the adjudicator. He is not bound to exclude the appellant or his representative; he will do so only to ensure that these matters can be presented to the adjudicator or Tribunal without any disclosure being directly or indirectly made contrary to the public interest. He will do it only if he believes that the public interest makes it necessary.


I am entirely unconvinced, but in view of the circumstances of the Committee, I beg leave to withdraw.

Amendment, by leave, withdrawn.

Clause 22, as amended, agreed to.

Clause 23 [Financial support for organisations helping persons with rights of appeal]:

11.5 p.m.

BARONESS WHITE moved Amendment No. 101:

Page 22, line 40, at end insert— (" (2) The Secretary of State shall, at intervals not less frequently than anually, lay before Parliament a statement of grants made to any or each such organisation as is referred to in subsection (1) above, during the last calendar year preceding such statement.")

The noble Baroness said: This is quite a straight forward Amendment, in the sense that we feel that Parliament, and through Parliament the public, should be informed about the organisations to which the Secretary of State may wish to grant aid. We have no objection at all to this procedure of grants being made to voluntary organisations; we just think the public has a right to know which organisations they are and how much they may have received. We are not really particular as to the method of doing this. If the noble Lord wishes to say that he thinks this is perhaps too onerous or expensive a method, to lay a statement annually before Parliament but that the information can be included in some annual report, if there is an appropriate one, that will be quite satisfactory; but we do think this information should be made available. I beg to move.


The requirement proposed in the Amendment moved by the noble Baroness would be exceptional, and in the time available it has not been possible to trace a precedent for it: there is certainly none in the Home Office field. The normal means of keeping Parliament informed about the expenditure of public money is through the annual Estimates and, at a later stage, the annual Appropriation Account. In the Estimates for the current financial year (1971–72) provision for grants under Section 15 of the Immigration Appeals Act 1969 is made in sub-head E(3) of the Home Office Vote, and this sub-head states that the money sought will be paid as a grant-in-aid to the United Kingdom Immigrants Advisory Service. The grant paid will in due course be recorded in the Appropriation Account for this financial year; and the same will happen in subsequent years. No change in practice is foreseen when Clause 23 replaces Section 15 of the 1969 Act. Thus the information sought is already available to Parliament, and the Amendment would seem to involve unnecessary duplication of work.

In view of that explanation I hope that the noble Baroness will not press the Amendment.


In view of what the noble Lord has said I will not press this Amendment. I am not quite sure that in an area as sensitive as this, where there is so much room for suspicion—much of it not justified, but nevertheless it is there—the method, satisfactory as it may be to Parliamentarians, is likely to be effective where the public are concerned. After all, the public generally do not understand our methods of dealing with departmental votes and sub-heads, and all the rest of it, and I would like to think about this a little more. But in the light of what the noble Lord has said I do not wish to press it at the moment and I beg leave with withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Clause 24 [Illegal entry and similar offences]:

11.9 p.m.

LORD BROCKWAY moved Amendment No. 101C: Page 23, line 5, leave out from (" £200 ") to (" in ") in line 6.)

The noble Lord said: The purpose of this Amendment is to delete the reference to imprisonment. I will just put this point quite simply to the Minister. If there is to be the power to impose a fine of £200, and if this is to be followed by deportation, the inclusion of some period of imprisonment is unnecessary. I beg to move.


I should like to support my noble friend, this time I think without qualifications. If the law is to introduce reasons for sending somebody to prison they must be justified, and the reasons for sending somebody to prison who commits this kind of crime seem to me to fade away as we examine them. There is no question of protecting the public; prison does not do that; you cannot illegally enter when you are already here, so the question of protection of the public does not arise. The question of rehabilitation is extremely remote; the idea that you make a man sorry he entered illegally and therefore he will never do it again if you send him away rather fantastic.

You are reduced to the question of straight punishment. We have fairly modern views about straight punishment. There are cases which are so heinous that society requires pain of some kind to be inflicted. There are different views as to whether it is desirable. This is clearly not such a case. I can see no justification whatever, in ethics or any other form of philosophy, for inflicting imprisonment on people who commit this kind of breach of the law, and I think unless the Government can produce some reasons we should support my noble friend's Amendment.


As the Bill stands, offences under Clause 24(1) are punishable by a fine of up to £200 or by imprisonment for up to six months or both. The Amendment would remove the power to impose a sentence of imprisonment. Where an offence under Clause 24(1) has been committed it will often be a sufficient vindication of the law if the offender is sent out of the country, either as a result of a recommendation for deportation by the court or of other powers available under the Bill for removing people who are here illegally.

But this would not always be so. For example, if a person who has been deported for a serious criminal offence returns here in breach of the deportation order, and escapes detection on entry, the court might consider that the offence he has committed in returning merits a sentence of imprisonment. I might just add on that to the noble Lord, Lord Donaldson, who has expressed an interest in this, that this would be particularly so in regard to Irish offenders; there being no control over movement between the Irish Republic and the United Kingdom, the sanction of imprisonment is a very real deterrent, to an Irish deportee who is tempted to come back again to this country while a deportation order is in force against him.

A further objection is that the power of a court to recommend an offender for deportation under Clause 3(6) depends on his offence being one which is punishable with imprisonment. If the Amendment were carried, offences under Clause 24(1) would no longer be punishable with imprisonment and so could not lead to a recommendation for deportation.


Is the noble Lord really serious in this argument? It does seem to me absolutely fantastic that in order to deport somebody you have got to be able to send him to prison, irrespective of whether there is good reason or not. Really this is an administrative"fiddle"which is not acceptable.


I do not think it is. The reason why deportation depends on offences punishable with imprisonment is to ensure that the court does not recommend people for deportation for very trivial offences. We had a longish debate on this, on the petty offender, and the noble Lord, Lord Beaumont, moved an Amendment on the subject of offences punishable with imprisonment. This is exactly what we are talking about, that people should not be recommended for deportation the first time they fall foul of the law in some trivial way.

The answer to it might be that the Bill could be amended in some way in Clause 3(6); but even if the power to recommend for deportation were retained there might be instances of offences under Clause 24(1) which in the opinion of the court did not warrant a recommendation for deportation but merited a punishment heavier than a fine, or where a fine would for other reasons be inappropriate. The effect of the Amendment would be to constrain the court to recommend deportation for want of a power of imprisonment. Similar offences are already punishable with imprisonment both under Sections 4 and 11 of the Commonwealth Immigrants Act 1962 and Article 26 of the Aliens Order 1953. It seems right, therefore, to leave the courts with their present powers, which they have had for at least nine years in the case of Commonwealth citizens and since 1953 in the case of aliens, to pass sentences for imprisonment where they believe it is necessary to do so.

11.16 p.m.


The noble Lord has mentioned the Irish in this connection. Supposing an Irishman is subjected to the order to be deported and he returns to Ireland. Under our law he has every right to enter this country. If he does enter the country is he contravening the original order for deportation?


Yes, he is. He has no right to enter if he is subject to a deportation order.


I mean permanently, when ordinarily he has the right to come to this country?


Yes. This applies to everyone under a deportation order. It is until such time that the deportation order is revoked, and there is a procedure for that in the Bill.


As a high proportion of the Irish are already in our prisons I think it is a mistake to add to them in this way. The argument I cannot get round at all is this argument that you have to commit a crime worthy of imprisonment before you can be deported; and then you give a list of sins connected with illegal entry, and then say you have to send these people to prison because, if you did not, you could not deport them. Have I got it wrong?


I think you have, because you seem to be saying that you have to send people to prison. This is not the case. It is an offence punishable with imprisonment which, in practice, is very seldom punished with imprisonment at all. At the present time very often in these immigration offences the court may recommend for deportation and nothing more, or it may recommend—and very often does—one day's imprisonment and a recommendation for deportation. It is a residual power which, as I say, the courts have had since 1962 in the case of Commonwealth citizens and earlier in the case of aliens. It is used sparingly and at the discretion of the courts.


I do not want to go on with it, because it could he endless. I have not been satisfied that there is any single reason for sending any person who breaches any of the provisions in Clause 24(1)(a)(b)(c)(d)(e)(f) or (g) to prison. It seems to me that doing so in every case would be negative, a useless filling of our prisons with people we do not want there, and better not done. Having said that, I leave it to my noble friend to carry on.


I would hope that the Government might give this some consideration. It may be that the right consideration ought to be on Clause 6 rather than here. I think there is some force in what my noble friend Lord Donaldson says. When he asks if it is really necessary to send people to prison for these things, he is told it is necessary because you could not have a deportation order unless the person could be sent to prison. Then when it comes to Clause 6, we take every possible device to ensure that a deportation order is not to be made unless the offence is one for which there may be a sentence of imprisonment, but then we include here all sorts of cases in which ordinarily under our law there is no possibility of imprisonment.

We provide that the question whether an offence is punishable with imprisonment shall be determined without regard to any enactment restricting the imprisonment of a young offender or a first offender. Then further we provide that, notwithstanding that the court does not proceed to conviction, it is still to be regarded as if the person had been convicted. There is a good deal of force in what my noble friend Lord Donaldson said. We really are going around in circles, because a court does not grant an absolute discharge. This is providing an absolute discharge in the case of a conviction, but a court does not give an absolute discharge unless it is a very small matter and the probability is that a prosecution ought not to have been brought.


I am very grateful to my noble friend Lord Donaldson for his support, and for what has been said by the noble and learned Lord, Lord Gardiner. I hope very much that the Minister will give some further thought to this and perhaps we can return to it at Report stage. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

11.22 p.m.

LORD FOOT moved Amendment No. 102: Page 23, line 16, after (" he ") insert (" knowingly ").

The noble Lord said: Paragraph (c) of subsection (1), to which this Amendment relates, deals with seamen and aircraft crews, coming into this country under Clause 8(1). This paragraph provides that if any such seaman or member of the crew of an aircraft lawfully enters the United Kingdom without leave—that is, temporarily, until his ship or aircraft goes out in the ordinary way—and then remains without leave beyond the short period of time allowed under Clause 8(1), he commits an offence. The only question we are asking through this Amendment is why, when the word"knowingly"is in other parts of this clause, and when the phrase"without reasonable excuse"is in paragraph (d), there are no saving words in paragraph (c) providing that it is only if a person knowingly remains without leave, or without reasonable excuse remains without leave, that he commits an offence. I do not understand why"knowingly"should be regarded as important in one paragraph, and why"without reasonable excuse"should appear in another paragraph, yet neither of those terms appears in paragraph (c). I beg to move.


This point was rather exhaustively discussed in another place. There were a number of Amendments put forward by the honourable friends of the noble Lord seeking to insert the word"knowingly"into this clause. I think the majority of them were accepted by the Government. This one was not accepted and was negatived. It relates to a crew member who, for one reason or another, jumps his ship, a situation dealt with in Clause 8(1). It was thought that"knowingly"was inappropriate to that case, and I am bound to say that I think it is difficult to see any situation where a lack of knowledge of the facts would cause an injustice. We are dealing here with a summary offence. Summary offences, theoretically punishable by imprisonment for short periods of time, are very frequent on our Statute Book—careless driving is one of them—and some do and some do not involve a degree of guilty knowledge. Usually there is some degree of guilty knowledge, but careless driving is an example of where there is none, and there are many others where there is none.

It was thought that this particular case was one where, although of course the crew member who jumps his ship normally does have the guilty knowledge, it was not desirable to make it an essential ingredient of the offence. The case which was cited by the Solicitor General, or perhaps by others in the debate in another place, was the case where the sailor concerned said that his watch was slow. A more obvious case, of course, is where he is too drunk to know that his ship has gone. I personally agree with the Government, and on the whole, without feeling passionately about this matter, I would submit that the Government are right.


May I say that I do not feel very passionately about it, either. Nevertheless, I think it is important that we try to get these things right. I ask the noble and learned Lord whether the arguments which he has addressed to us under paragraph (c) do not apply to subsection (1)(a), where the words are: if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave;…"? Would it not be difficult, on the analogy that the noble and learned Lord has drawn, to imagine circumstances in which a person could enter the United Kingdom in breach of a deportation order unconsciously, or could come in without leave, without being aware of the fact? I should have thought that all the arguments which the noble and learned Lord has so persuasively addressed to us about paragraph (c) apply equally to paragraph (a).


That only goes to show how reasonable the Government were in accepting the word"knowingly"in paragraph (a).


In spite of being wholly unpersuaded by the noble and learned Lord, I beg leave, at this hour of the night, to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD BROCKWAY moved Amendment No. 102A: Page 23, line 23, leave out paragraph (e).

The noble Lord said: I do not want to press this point at any length because the issue has been discussed on previous Amendments. I should just like to ask the Minister whether this paragraph is necessary, because it repeats what is said effectively in Clause 24(1)(b). I beg to move.


It is thought that this is necessary. The Amendment would delete paragraph (e), which for ease of reference I will read out. It says that the offence is committed if, without reasonable excuse ", the person accused fails to observe any restriction imposed on him under Schedule 2 or 3 to this Act as to residence or as to reporting to the police… The Amendment appears to be based on the view that paragraph (e) relates to the arrangements for police registration provided for in Clauses 3(1)(c) and 4(3). But that is not so. Failure to register under those arrangements is, as the noble Lord I think suggested, an offence against Clause 24(1)(b)(ii); failure to comply in any other respect with regulations under Clause 4 (3) is an offence against Clause 26(1)(e). But as the references to Schedules 2 and 3 make clear, paragraph (e) really relates to failure to comply with restrictions imposed under paragraph 20(2) of Schedule 2 on persons temporarily admitted pending a final decision on whether leave to enter is to be given or refused, or pending removal after refusal of leave to enter; and failure to comply with restrictions imposed under paragraph 2(5) of Schedule 3 on a person released from custody while awaiting deportation. It is right that disregard of such restrictions by a person who has obtained temporary release from custody should be a criminal offence.

The power to admit a person temporarily pending a decision on whether or not to give him leave to enter is a new power which the Government seek under this Bill to avoid the need to keep passengers in custody in the small proportion of cases in which prompt decisions cannot be taken. But in some of these cases release will have to be coupled with restrictions about place of residence, et cetera. The alternative would be not unrestricted freedom but continued detention, so this Amendment would not be in the best interests of those whom Lord Brockway has in mind. With this explanation, he might be invited to withdraw this Amendment. It may be that the noble Lord will not press his Amendment. It is really a fundamental drafting point. The noble Lord thought perhaps that we were duplicating. The fact is that we are not.


In those circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

11.31 p.m.

LORD DENHAM moved Amendment No. 103: Page 23, line 25, at end insert (" or to an immigration officer ").

The noble Lord said: With permission I should like to speak also to Amendment No. 130.

Paragraph 20 of Schedule 2 to the Bill provides that a person liable to detention or detained pending his examination on entry into the country, and pending a decision whether or not to admit him, may be temporarily admitted without prejudice to a later exercise of the power to detain him and, further, that while such a person is at large he shall be subject to such restrictions as to residence and as to reporting to the police as may from time to time be notified to him in writing by an immigration officer.

These Amendments seek to provide that a person so at large may be subject to a restriction as to reporting to an immigration officer, instead of to the police. These Amendments are intended to deal with the not uncommon case where a person so set at large remains near the port while the Immigration Service attempt to resolve his case by further inquiry. He may, for example, be permitted to stay at a hotel. To meet the circumstances of such a case, it would be adequate, and convenient, if he were required to report to an immigration officer rather than to the police. This would save involving the police in a case in which they do not need to be concerned.

The Amendment to Clause 24 is an ancillary one, making it a criminal offence if the person al large fails to observe the requirement to report to the immigration officer. I beg to move.

On Question, Amendment agreed to.

LORD DENHAM moved Amendment No. 104: Page 23, line 33, leave out subsection (2).

The noble Lord said: This Amendment is consequential upon one accepted by the Government at the Commons Report stage which inserted the word"knowingly"into Clause 24(1)(a). Subsection (2) of the clause provides that a person who has not had notice of a deportation order made against him is not guilty of an offence under subsection (1)(a) if he returns while the order is in force. Now that subsection (1)(a) is qualified with the word"knowingly ", subsection (2) is unnecessary and this Amendment deletes it. I beg to move.

On Question, Amendment agreed to.

LORD FOOT moved Amendment No. 105: Page 23, line 38, leave out (" A constable or immigration officer ") and insert (" An immigration officer on duty and at a point of embarkation and disembarkation or a constable ")

The noble Lord said: This Amendment is to insert certain words and to delete others. This subsection is concerned with the right of a constable or an immigration officer to arrest somebody without warrant. We propose that, while that right should remain with a constable, it should be limited and qualified so that an immigration officer should be able to arrest without warrant only at the port of embarkation or disembarkation.

The short point here is that we think it inappropriate to extend the right to arrest without a warrant any further than we need. We do not like the idea of an immigration officer going off into the country to call in somebody and perhaps arrest him without a warrant. We think this power of arrest without a warrant should be limited if possible to the police, although we recognise that at a port of embarkation or disembarkation there may be a case for giving the immigration officer power to arrest without a warrant where the circumstances require it in the apprehension of a person who otherwise might get away. It is only to try to introduce a safeguard that this is proposed. It does not seem that it would make the administration of power of arrest any more difficult, and it would be an improvement in the Bill as drafted. I beg to move.


I feel some difficulty about this because it pre-empts two Amendments in the name of the noble Lord, Lord Brockway, which object to such a right of arrest without warrant in any case. Here we are in what has always been the most illiberal part of our law. There has been very little law about it in the past because it has been nearly all administration. Whether we are right in giving these civilians, for whom I have the highest regard, executive officers or men promoted to be executive officers—these somewhat junior civil servants—a right to arrest seems to me very questionable. The police, I should have thought, are the proper officers to arrest people. Later we go on to find even more extensive powers given to immigration officers.

I hope that the Government may at least be prepared to consider the Amendment which has been moved by the noble Lord, Lord Foot, which would place some limitation on the right of arrest which is being given to these admirable civil servants. Perhaps whichever Minister is to reply would be good enough to remind the Committee exactly how many civil servants to whom we are giving the right of arrest there are.


My noble friend Lord Denham will reply to the substance of the debate on this Amendment, hut, since I am somewhat closer to this subject I should say that the total strength of the immigration service is just over 2,000 people. I do not think the noble and learned Lord, Lord Gardiner, should give the impression that they are junior civil servants, for these very great powers cannot be exercised by people who are not very experienced. I can assure the noble and learned Lord from first-hand experience that the system is such that any decision at the ports, including any refusal to give leave to land, has under the regulations to be referred to a chief immigration officer. These are very experienced people, and there are several of them permanently on duty night and day at the main ports of entry. At London Airport, for example, there is one of Her Majesty's Inspectors who is based on London, and difficult cases can be referred to him; and likewise at Dover and the Channel ports.


Before the noble Lord replies, I should like to support my noble and learned friend. Is there any other class of civil servant who has the power of arrest? I find this a rather curious extension to throw into the Bill like this. I do not like it and I do not think that we should pass this without further discussion. We should have some good reason for extending this power.


If I may reply, I will come on to the point the noble Iord has just made. It is true that on the rare occasions when immigration officers may have to exercise their power of arrest, they are most likely to be on duty examining passengers. An immigration officer might then observe an attempt at illegal entry, contrary to Clause 24(1)(a) or (f), or at illegal embarkation, contrary to Clause 24(1)(g), which could be prevented only by an immediate exercise of his power of arrest, there being no police officer at hand to intervene. But there may also be occasions when an immigration officer observes an attempt at illegal entry or embarkation when not actually on duty at a point of embarkation or disembarkation. This may happen as an officer is on his way to or from the point of duty.

I can give your Lordships an assurance that there is no question of an immigration officer being employed primarily for the purpose of tracking down offenders against Clause 24, or any other provision of the Bill, and arresting them. But there may well be occasions on which, in the course of their ordinary duties, immigration officers come across such offenders when no police officer is available. These need not be occasions when the immigration officer is at a point of embarkation or disembarkation. It would be undesirable therefore to limit the scope of their power in the way proposed in the Amendment. I would say to the noble Lord, Lord Donaldson of Kingsbridge, that similar powers of arrest without warrant were conferred on immigration officers by the existing law, in the Aliens Order, 1953, Article 28(1), and in the Commonwealth Immigrants Act 1962, Section 14(1). They have not been exercised frequently or in a way which has given rise to complaint. Immigration officers are officers of the Home Office, and the Home Secretary is answerable to Parliament for their conduct in this as in other respects.


I am not happy about this. In the first place, if they already have the power, why give it to them in the Bill? In the second place, the idea of immigration officers exercising this power off duty is to me repugnant. If we are to accept that immigration officers should have these powers, we should support the Amendment of the noble Lord, Lord Foot, because it limits the power to its exercise while on duty. This business of meeting a chap in a pub, finding that he is an illegal immigrant and arresting him is unattractive. It does not happen elsewhere in life. An officer can exercise the right of a private citizen, but I do not think he should have any further right than that. I do not know whether my noble and learned friend feels as uncomfortable about this as I do.

11.44 p.m.


I do not know whether the noble Lord, Lord Denham, really answered the question about whether other civil servants have been given the power of arrest. It is always possible to find administratively convenient reasons for giving all civil servants more power to arrest people; but might this not be confined to chief immigration officers? To give 2,000 civil servants, who are gentlemen of the highest character and ability but who are the lowest grade of the executive class, a power of arrest is going a bit far. It is not a useful thing at quarter to twelve at night to discuss an important point like this, but I hope that the Government may give this matter further consideration.


May I correct a mistake that my noble friend made? He said that there were 2,000 immigration officers, but I understand that the number is 1,000. I think it was the noble Lord, Lord Donaldson of Kingsbridge, who said he thought that it was wrong that an immigration officer could arrest somebody whom he had met casually in a pub. I think the assurance that I gave, that immigration officers were not going to be used to track down people like this, should be of some comfort to the noble Lord.




The intention is that an immigration officer while on his way to or from duty should be able to do what he considers to be his duty. The noble and learned Lord asked again whether there were other civil servants with powers of arrest. I cannot answer that question without notice, but we think that there are others. We think that possibly customs officers have that power; but, if I may, I will let the noble and learned Lord know.

The noble Lord, Lord Donaldson, also said that if under existing legislation immigration officers already had the power to arrest, why should we give it to them again? The reason is that this Bill is intended to replace the other two Acts, which will be repealed by this Bill; and if you do not give them back the power, they will no longer have it.


That is the most satisfactory part of the noble Lord's answer.


I feel that this is not the sort of matter which we ought to be discussing at quarter to twelve at night. I think that the Government are treating this too lightly. They are proposing a substantial extension of the power of arrest without warrant, and that is a most important thing for them to be doing. If the Government would only give some indication that they are prepared to consider this matter again. I should be quite happy to withdraw the Amendment. It seems rather futile to divide the Committee at this hour of night, and I would ask the Government whether they will not throw out some small crumb of hope that the matter will be looked at again, because this is of considerable public importance.


I do not think I can give the noble Lord that crumb of hope. I would point out to him that we are not discussing some new idea at this time of night. What we are discussing is a provision already in the Acts 'which this Bill is going to replace; and the noble Lord is suggesting that this provision, which is already there, should be removed. We are defending the status quo, and it is the noble Lord who is asking for change.


If your Lordships will forgive me for speaking again, I am not proposing that this power which now exists should be taken away. I am asking that' it should be circumscribed, and should only be exercisable (a) when the immigration officer is on duty, and (b) when he is at the point of embarkation or disembarkation.


The noble Lord has given the assurance that immigration officers will not exercise this right of arrest except at their place of duty.


He has not, with respect.


I understand that the noble Lord had given that assurance.


The assurance that I gave your Lordships was that immigration officers would not be used to track down illegal immigrants. But if they happen to come across them on their way to or from their work they should not be prevented from carrying out what they consider to be their duty, and what I must say I would consider to be their duty.


We hope to stop it from being their duty. That is the point of this Amendment.


Perhaps I can make this point. I was somewhat reassured by what the noble Lord, Lord Windlesham, said; namely, that in practice reference would be made to a chief immigration officer. That is fine, provided the immigration officer is on duty at his post; but if he should be off duty—and he must be either on or off—he may be well away from the point of embarkation or disembarkation and therefore unable to consult with the chief immigration officer. So that particular reassurance, where a particular immigration officer is off duty, is not convincing. It is really very worrying to us that a person off duty who is not a member of the police force should have the power to arrest without warrant.


May I make two points? First of all, the position which the Opposition is attacking has been the law of the land for many years—for nine years in the case of Com- monwealth immigrants and for much longer than that in the case of aliens. In my experience, no complaint has ever been levelled against the behaviour of immigration officers in this respect or in the exercise of their powers. No suggestion has been made by the Government that they are to be given wider instructions than they have had hitherto. No case has been brought forward by the Opposition of any suggestion that these powers have been misused in the past. I entirely understand that the Committee should be on its guard about all such matters but I must say I should be far more convinced by what has been said in support of the Amendment if the Opposition had produced a single case of the unsuitable exercise of these powers—which are of value in themselves, of course, because they lead to the apprehension of offenders who might otherwise escape.


This is, after all, a Bill which is intended to tidy the matter up, and if we find something which is wrong I do not see why we should not try to put it right. As for not being able to produce a single case of abuse, we have not looked for one—I do not suppose there has been one. But really this has nothing to do with the matter. If the Bill allows something which is unsatisfactory, let us alter it. I cannot follow the argument of the noble Lord, Lord Brooke of Cumnor, at all.


May I ask the noble Lord, Lord Brooke of Cumnor, whether he can tell us how many cases there have been of off duty immigration officers arresting without warrant? If he says that this has not been the subject matter of complaint, and if it has never been exercised by anybody off duty, of course there would be no occasion for complaint. Since the noble Lord asks us for statistics, perhaps he can tell us what statistics he has got.


No, I cannot without notice answer that question, for obvious reasons; but I suggest to your Lordships that when Amendments are moved those who are moving them should furnish themselves beforehand with evidence in support of the Amendment and not say that they have not had time to collect that evidence.


We have discussed this Amendment very fully and I hope that noble Lords opposite will not press it. As my noble friend Lord Brooke has said, the point is in the existing law already and there have not, so far as we know, been any complaints about it. As I have said, my right honourable friend the Home Secretary is answerable to Parliament for the conduct of immigration officers. I know that assurance was not acceptable to the noble Lord, Lord Donaldson, but I hope that your Lordships may be prepared to leave matters there.

On Question, Amendment negatived.

LORD BROCKWAY moved Amendment No. 105C: Page 24, line 16, leave out (" or facilitating ").

The noble Lord said: I should like to say just a word or two about this Amendment. The word"facilitating"seems to be very ill-defined, and other powers in this Bill are sufficient to deal with the problem of illegal entry without introducing this vague concept. It is not already covered in the words in the first line of Clause 25: Any person knowingly concerned… Surely that covers"facilitating ". Therefore, I beg to move that it be left out.


Clause 25(1) creates the new offence of being knowingly concerned in making or carrying out arrangements for securing or facilitating illegal entry. This Amendment would delete the words"or facilitating ". The Government have thought it desirable to take the opportunity provided by the Bill to make specific statutory provision for the punishment of those who engage in the smuggling of immigrants. At present they are usually prosecuted for conspiring to contravene the Commonwealth Immigrants Acts. By introducing a specific statutory offence the Bill is defining more clearly than the present law the circumstances in which such conduct is punishable.

In the Government's view it is right that the sanctions of the criminal law should be directed not only at those who take an active and leading part in organising illegal entry, but also at those who deliberately, and usually for motives of profit, connive at and assist in this traffic, including someone who merely allows others to have the use of his ship, aircraft, vehicle or premises. Such a person cannot be said to secure the illegal entry of anyone, but he facilitates it. The range of acts which might be done for the purpose of furthering or assisting illegal entry is so wide that the only way of giving the offence its proper scope is to use the general words"securing or facilitating"which are to be found in Clause 25(1).

As the Bill stands, an offence under Clause 25(1) is committed only by a person who is knowingly concerned in making or carrying out arrangements for securing or facilitating illegal entry, and then only if he knows that the persons whose entry is in question are illegal entrants, or if he has reasonable cause to believe this to be so. There is therefore no risk of innocent participants in a scheme for illegal entry being punished.


May I rise on a point of order? We are unwittingly out of order here. Owing to a failure in the printing of the Marshalled List we have unwittingly strayed on to Clause 25, whereas the Marshalled List does not show that we have left Clause 24. The result is that we are discussing Clause 25 without having discussed the Question, That Clause 24 stand part. Perhaps if the Lord Chairman would put the Question we ought to postpone the discussion until we have discussed Clause 24 stand part.


I beg your Lordships' pardon, the noble and learned Lord is perfectly correct. Clause 24 ends on the Marshalled List with Amendment 105B, and not as printed. Therefore, with your Lordships' permission, I will now put the Question, That Clause 24, as amended, stand part of the Bill.

Clause 24, as amended, agreed to.

Clause 25 [Assisting illegal entry, and harbouring]:


Amendment 105C resumed.


I assume that all that remains for me to do is to ask leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

LORD BROCKWAY had given notice of Amendment No. 105D: Page 24, line 20, leave out (" £400 ") and insert (" £200 ")

The noble Lord said: In the case of Amendments 105D, 105E and 105F, I will not move them but will raise the matter as one of principle on a later Amendment.

12 midnight.

LORD WADE moved Amendment No. 106: Page 24, line 25, leave out (" or has reasonable cause for believing to be ")

The noble Lord said: I beg to move Amendment No. 106 which stands in the name of my noble friends and myself. We are now discussing assisting illegal entry, Clause 25. The Amendment refers to subsection (2) which reads: Without prejudice to subsection (1) above a person knowingly harbouring anyone whom he knows or has reasonable cause for believing to be either an illegal entrant or a person who has committed an offence under section 24(1)(b) or (c) above, shall be guilty of an offence, punishable on summary conviction with a fine of not more than £400 or with imprisonment for not more than six months, or with both.

Before referring briefly to the Amendment, I think it would be appropriate to make it quite clear, although I hope it is unnecessary to do so, that my noble friends and I have no desire whatever to assist illegal entry, and no doubt this is the view of everyone here. Whatever one's views may be about the necessity for immigration laws, once they are passed they should be obeyed. Furthermore, I entirely agree with the view that illegal entry and the rackets sometimes associated with it and the publicity given to the rackets are harmful to community relations, and it had been my intention to make this point in moving this Amendment. I therefore agree with what the noble Lord, Lord Windlesham, said earlier on that particular aspect of the matter.

I think we are all agreed that illegal entry should be stopped so far as that is practicable, but in considering any law relating to this matter we also have to consider whether any new injustice is being introduced or, furthermore, whether there are any unforeseen consequences of the law which is being passed. I do not think it is necessary to pursue this matter of possible injustice except to say that there may be cases of somebody who is providing accommodation for an illegal entrant and may find difficulty in proving that he has not reasonable cause for believing this person to be an illegal entrant. Apart from that, there are sonic consequences that may not have been foreseen when this was drafted.

Take the case of a hotel proprietor or the proprietor of a boarding house who does not wish to have any coloured persons in his establishment. All he has to do is to say that he dare not risk being found guilty of an offence under this clause, and therefore the only safe thing to do is to say"No"to any coloured person who asks for accommodation. If any accusation is brought against him under the Race Relations Act he will say,"I was only acting reasonably in my own interests because I did not want to commit an offence under Clause 25 ". That is not a far fetched case. It is quite possible that the legislation may be abused in this way, and it arises out of these words going so wide. A person may be guilty of an offence because it is alleged that he has reasonable cause for believing that a person may be an illegal entrant. It is mainly to press that particular aspect of the subsection—


I am sorry to interrupt the noble Lord, but I feel that if this particular hotelier were going to do what the noble Lord has just suggested, he would have to refuse accommodation to any person who was not a United Kingdom citizen; he would be in very serious trouble otherwise. The Race Relations Board could certainly take up the case if he chose just coloured immigrants for this treatment.


That may be, but the point I have been making is sound. I do not think this situation can have been intended when this particular clause was drafted. I should certainly like to hear the Minister's answer to this point. It is a point which deserves serious consideration, and I beg to move.


I want to say in only one sentence that we support the noble Lord, Lord Wade, on this issue because we have had representations from community relations officers on this point. They think that where people do not wish to take a coloured immigrant—I say this with great respect to Lord Balfour—an excuse is likely to be used; they will use the excuse,"We thought he might be illegal and therefore we cannot take him." The noble and learned Lord may think that this is far fetched, but we have had representations on this point from people who are directly concerned with community relations, and they say this provision can be used as an excuse by persons who do not want to take coloured immigrants anyway.

12.7 a.m.


With great respect, I think this danger is a fanciful one. The noble Lord, Lord Wade, began by disclaiming any desire to encourage illegal entry. He need not have done so. Anyone less like a person who encourages illegal entry than the noble Lord, Lord Wade, it would be difficult to imagine. So that at any rate is among the fears we can discount wholly. The other fear is that somebody who was ill-intentioned could say of a person, either because he had a foreign accent or because he had a coloured face,"I won't take him in ", and when he was asked why, instead of admitting the truth that he was discriminating, he would say,"Well, I was so afraid of a prosecution under Clause 25 of the Immigration Bill ". I think that that wholly underestimates the intelligence of the county court in a race relations case, and wholly discounts the meaning of the words"reasonable grounds ".

With I forget how many aliens and how many Commonwealth immigrants in the country—they run into millions, anyhow—the fact that somebody happens to be of external origin is not reasonable grounds for thinking that he entered illegally, and I do not think that any court in its right mind could possibly come to the conclusion that it was. Therefore, however many representations there may have been, I think a little reflection would dispose of that fear as being a pure nightmare fantasy.

The purpose of the phrase"has reasonable grounds"is surely a simple one. Clause 25 has a slightly more serious range of offences than those contained in Clause 24, and for that reason they are what are called hybrid offences. They can be dealt with, as the great majority of them will be dealt with, summarily before petty sessions. All the more serious cases or the cases in which a defendant wants to raise a question of principle or a substantial defence can be taken before a jury on indictment; in other words, they cover a wide range of different types of activity. To insist in every case on a prosecution establishing, actual knowledge would make the clause—not completely impossible, but in a large number of cases impossible to police at all. We all know of the situation where somebody deliberately shuts his eyes to facts in order to be able to say that he did not know them, and this is, I suppose, designed by the draftsman to cover that set of circumstances.

The movers of the Amendment may say that it is wrong to penalise somebody who is merely careless in failing to realise that the person he is harbouring has come here illegally, but they must surely recognise that to allow harbourers to escape conviction when all the facts point to illegal entry and they were deliberately shutting their eyes to the truth in order to be able to say,"We did not actually know because we did not see them come in ", is really to try to drive the proverbial coach and horses through the clause. It is the case that these words have a certain pedigree behind them. They have been the law, I think, for something like ten years because they are to be found in Section 4(2), I think it is, of the Commonwealth Immigrants Act 1962—and I suspect they may even be in the Aliens Order, but I have not looked that one up.

I sympathise with the noble Lord's fears, but if the strength of the case is that it would encourage discrimination I simply do not believe it; and if the strength of the case is that one does not want to convict under this clause somebody who deliberately shuts his eyes to the truth in order to say that he did not have actual knowledge, I do not think there is any merit in it. With that explanation, I hope that there is very little difference between us, and I hope I have reassured the noble Lord, both as to his own bona fides, which are universally accepted in this House, and as to the dangers which he apprehends.


May I say respectfully to the noble and learned Lord that on the first matter I raised I do not think that he has seen the point. He said that he does not think this will lead to an excuse for increased discrimination. He went on to point to the possibility of somebody using this excuse and having an action brought against him under the race relations law and being brought into the county court. He said that if that was put forward as a reason why he had taken the action he had, no county court judge would be persuaded that that was discrimination. But I do not think that that is what we are talking about: what we are talking about is that if this clause is written into the Bill it will necessarily be brought to the attention of all hotels, guest houses, lodging houses, and so on, throughout the land, because they want to know about this. These are the people who harbour people and who want to know what the law is. What we are concerned about, and what I understand the noble Baroness is concerned about, and rightly so, is that in fact this will be used by hotel proprietors and lodging house proprietors as a means of harassing the coloured population. It may be that only a small proportion, or perhaps none of them, will ever complain about it, but in fact it may be used in that way; and if it is so used it will be very harmful to community relations.


The noble Lord is not fair in saying I have not seen the point. I think I have seen it very well. It so happens that in my previous incarnation I did a number of these cases before the courts. Sometimes when they got before the Divisional Court the cases were sufficiently important to take in leading counsel, and I did them. We are not talking in the main about hoteliers. I hope they do see the terms of this clause; it is intended that they should. But the reality of the sort of case which happens is that an illegal entrant is put into a house which is not a hotel and not a boarding house, but very often an unoccupied cottage owned by somebody who is the sort of person who in previous days would have been a smuggler and said: Watch the wall, my darling, while the Gentlemen go by! if I may quote from Rudyard Kipling. I remember a case of some people walking along a road who told a very long story, but the fact was that their trousers were full of salt water and their shoes covered with sand from the seashore. No one who saw them would have known that they were illegal entrants, but I dare say they would have reasonable grounds for thinking so if they harboured them. That is the sort of case. It is possible that I may have missed the point. It is also possible that the noble Lord, Lord Foot, does not know the facts of life.


With great respect to the noble and learned Lord the Lord Chancellor, this is certainly not a nightmare fantasy, although it may be the time of night at which nightmare fantasies sometimes occur. I think this is a serious point and the representations which have been made are justified; there are very real fears about this. I am not proposing to press this to-night. I will give further thought to the observations of the noble and learned Lord the Lord Chancellor. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

12.17 a.m.

LORD BROCKWAY moved Amendment No. 106A: Page 24, line 29, leave out (" £400 ") and insert (" £100 ")

The noble Lord said: I beg to move Amendment No. 106A and may I take with it No. 106B? The point is very simple. I suggest that the penalties imposed are too high. I accept the view that in the case of an importer of illegal immigrants for gain a high sentence is justified, but in most of these cases it will be a member of a family protecting another member of the family rather than that of a deliberate criminal. I would urge in those circumstances that the penalties are too high. I beg to move.


I should like to support my noble friend. This is really a rather important item. I shall be as quick as I can, but I do not think we should skimp the discussion. We are introducing legislation half of which is perfectly reasonable and the other half of which is not. By that rather cryptic sentence I mean that half of the people to whom it applies are people who are deliberately making money out of breaking the law, and none of us particularly minds if they are fairly heavily fined. But the other half will be people who are doing what, if we were in their position, we should do. This is a very difficult thing to legislate against. Let me put this case. If you came from St. Lucia and had settled in this country and somebody turned up and said."I am on the run from the police; I have come in illegally, and I am from your island ", you would put him up—we all would. Whether we would be right to do so I do not know, but I do not think a single person would behave in any other way. This legislation applies to those people, and also to people who thoroughly deserve to be caught. That is the dilemma. The only way one can express one's disquiet is to support my noble friend Lord Brockway's Amendment, which reduces the penalties very considerably.

There is no question that this is in the minds of people who have come into this country and who have settled down. I have talked to them and found it. I think it is a real problem when you start legislating against other people in a way which would not be acceptable to yourselves if you were in their position. I think this is a very serious point indeed, and I feel it very strongly. I do not know what we ought to do about it, but at any rate I have aired my feelings. The best way I can express my view is by supporting the lower penalties which, in my opinion, are far too high anyway.


Surely we are talking about a maximum fine and a maximum sentence of imprisonment. I feel that to a great extent we have to consider not only the person who may be importing illegal immigrants but also the person who may be an accomplice hiding them in a cellar or somewhere like that. We need to clobber both those characters as hard as we possibly can. There have been appalling cases of people coming in as illegal immigrants (not only to this country, but to other countries), where they have been through the most frightful conditions. They have paid enormous sums of money—often before they have come here, or when they have arrived—and they have no redress if anything goes wrong, because they have been carrying out an illegal action.

May I take the example of another country for a moment? The illegal immigrants to Israel just after the war suffered—my God! they suffered. I feel that for any sort of illegal immigration, or the trafficking of that sort of person, or the harbouring of them once they arrive, the maximum penalty should be the highest possible. If, on the other hand, this illegal immigrant comes in and is accommodated with a relation or a friend of his own kind, then I am quite certain the courts would look upon this from an entirely different light. You do not always get the maximum sentence when you are convicted of a crime. I feel that the maximum must be kept very high.


I am very glad that the noble Lord, Lord Brockway, did not move the first three Amendments in this set, Nos. 105D, E and F, which I feel rather went together with the Amendment which he is now moving, and I think he is also speaking to 106B.

Despite the efforts of the police and the other services concerned, the smuggling of illegal immigrants has continued in recent years and has caused the Government much concern. As the noble Lord, Lord Donaldson, said, it is a trade which leads to misery and hardship for the immigrants themselves, and unless it is stamped out it is bound to have a continuing adverse effect on community relations in this country. For this reason, the Government have taken the opportunity presented by this Bill to invite Parliament to create the new offence of assisting illegal entry, with penalties including the forfeiture of the ship, aircraft, or vehicle, which should prove to be a deterrent in the future. The Bill also seeks to increase the monetary penalties for existing offences against immigration control. As a further sign of the Government's concern, Clause 35(2) provides that Clause 25, creating the new offence of assisting illegal entry, shall come into force one month after Royal Assent.

The Government see no case for reducing from £400 to £200 the maximum fine on summary conviction for assisting illegal entry and harbouring. As the Bill was introduced, the maximum fine for harbouring was £200, but this was increased in another place to £400. We cannot see any reason, in spite of what has been said, for reducing the clause to its original form, still less for reducing it to £100. I hope that the noble Lord will not press this Amendment.

On Question, Amendment negatived.

12.25 a.m.

LORD BROCKWAY moved Amendment No. 106E: Page 24, line 32, at end insert (" the proof whereof shall lie on him ").

The noble Lord said: The intention behind this Amendment is that the prosecution should clearly be made responsible for proving the ingredients of the offence. It ought not to be for the defendant to be under any liability to prove that he came into the country illegally. This would be the issue in most cases and the onus of proof should be on the prosecution. I beg to move.


I think I can set the mind of the noble Lord, Lord Brockway, at rest over this. He has argued that it is for the prosecution to prove its case, but this is irrelevant. The question whether the constable or immigration officer had reasonable cause to make the arrest will not be an issue at the criminal trial, when the prosecution will have to establish the ingredients of the alleged offence in the normal way. The question whether the constable or immigration officer had reasonable cause will come up, if at all, not at the trial but in subsequent proceedings for damage for false arrest. If such Proceedings were brought it would be for the constable or immigration officer to establish that he did have reasonable cause. In other words, the Amendment is unnecessary because where in any proceedings a constable or immigration officer had to establish that he had reasonable cause to arrest a person, the proof would necessarily lie on him. The Amendment is not only unnecessary but is positively objectionable, because the insertion of these additional words would cast doubt on the effect of the many other statutory provisions which authorise arrest for reasonable cause but say nothing about the burden of proof. I hope that those assurances will satisfy the noble Lord.


I am not sure that I have followed all that the noble Lord has said, but I will take it for granted. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

12. 28 a.m.


Page 25, line 32, at end insert— (" (8) Notwithstanding subsections (6) and (7) above, a ship of five hundred or more gross tons register or a public transport aircraft shall not be liable to forfeiture under or by virtue of this section, unless the offence in respect of or in connection with which the forfeiture may be ordered was substantially the object of the voyage during or in connection with which the offence was committed.")

The noble Lord said: This Amendment stands in the name of my noble friend Lord Lauderdale who, unfortunately, is unable to be here this evening. I should also like to apologise for the absence of my noble friend Lord Geddes who, with his expert knowledge, had intended to speak to this Amendment. Unfortunately, he, too, is unable to be present this evening. I should like to thank the Committee for staying up so late to allow me this opportunity of moving this Amendment, which is quite an important one. Briefly, it is to limit the powers of forfeiture under subsections (6) and (7) of Clause 25 to smaller vessels. My noble friends and myself contend that the provisions in this Bill for forfeiture of ships and aircraft used for the appalling trade of smuggling immigrants are unnecessarily oppressive and could establish a very dangerous precedent. The scope of the provisions of this Bill is unnecessarily severe. As the Minister has declared in another place, it is aimed at the small vessels directly taking part in the trade of smuggling, and not at large ocean-going vessels engaged in international commerce.

There are two main points to which I wish to draw the Minister's attention. First, I appreciate that the enactment under this Bill will take place only after a decision by one of the higher courts. But when a ship such as the"Queen Elizabeth"or one of these vast tankers costing millions of pounds is involved, there is a possibility of delay while proceedings are taking their normal course. Even if proceedings were rapidly concluded, with the current pressure on courts there could be delay in getting these matters resolved. It should be borne in mind that the cost of delaying a large tanker is somewhere in the order of £7 per minute, which, of course, when this is worked out over hours, can prove a very expensive business.

Secondly, the power of forfeiture in the Bill is, I believe, already being viewed with suspicion in some quarters abroad, and our action may be followed by foreign countries which normally follow our lead in these matters. There is a very serious danger that other States whose Executive or Judiciary is less scrupulous than those of the United Kingdom will note the example set by a major maritime country such as ourselves and may well insert into their laws similar provisions, but relating to other offences. British ships trade to all corners of the world, and it is frightening to contemplate a situation in which any State may have a law allowing the forfeiture of a ship because of some criminal offence by the master. Noble Lords who have asked me to speak on their behalf, and I am sure everyone in this Committee, agree with the seriousness of and the principle behind this clause. But as it stands now we really are taking a sledgehammer to crack a nut. The Chamber of Shipping, the major airlines and the principal shipowners are naturally most perturbed about the effect of and the repercussions caused by the threat of forfeiture, and I hope that the Minister will be prepared to accept this Amendment. I beg to move.

12.32 a.m.


This part of the Bill provides that if a person convicted on indictment of assisting illegal entry is the owner, charterer or captain of a ship or aircraft, or the owner or hirer of a land vehicle which is used in connection with the offence, the court may order the forfeiture of the ship, aircraft or vehicle. Subsection (7) requires the court first to give anyone claiming to be the owner of the ship, or to have any other interest in it, an opportunity to show cause why it should not be forfeited. The Amendment would add to the clause a subsection providing that no order is to be made for the forfeiture of a ship of not less than 500 tons gross, or of a public transport aircraft, unless the offence was"substantially the object"of the voyage in connection with which it was committed. The Amendment, so I am advised, is modelled on Section 278(1) of the Customs and Excise Act 1952, which makes a similar provision in regard to ships of not less than 250 tons net, but not in regard to aircraft; and the Amendment arises from the concern which has been expressed to us not only by the noble Lord, Lord Geddes, to whom Lord Macpherson of Drumochter referred, but also by the Chamber of Shipping and B.O.A.C.

In the light of these representations, it is necessary to explain for a few moments the background to Clause 25 in some detail. The noble Lord, Lord Macpherson, ended his speech with the phrase that this power is a sledgehammer to crack a nut. It is certainly a very grave power, but I do not think we can refer to illegal immigration in terms of a nut, as something of no great consequence. This is, as we discussed on an earlier Amendment, a matter of very considerable importance, with far-reaching repercussions for the future of community relations in this country.

Apart from the desirability that the immigration laws, like any others, should be enforced and should be observed, the Government attach great importance to the provision for forfeiture made in Clause 25(6). Despite a number of successful prosecutions for conspiracy to contravene the Commonwealth Immigrants Acts, the problem of illegal entry persists and causes widespread concern. A power to order forfeiture will be a substantial extra deterrent to owners of ships, aircraft and vehicles who might be tempted to make them available for conveying illegal immigrants: the risk of losing a particular piece of valuable property is likely to weigh much more with a potential offender than liability to a fine of unlimited but uncertain amount. The power to order forfeiture, even where the owner is not himself convicted of an offence, is needed to cover cases in which he cannot be found or is outside the jurisdiction; it is also needed as an incentive to owners of ships, et cetera, to keep an eye on the use to which they are put.

Under the Customs and Excise Act 1952 (which consolidated legislation dating back to a much earlier era) the seizure of a ship or aircraft as liable to forfeiture is an administrative act of the Commissioners of Customs and Excise: an aggrieved owner may contest in the courts the question of liability to forfeiture but, once that question is settled, the court has no power to overrule the Commissioners in the exercise of their discretion. Under Clause 25, on the other hand, the power of forfeiture is exercisable only by the higher courts, and they are bound to give the owner or any other interested party a hearing before an order for forfeiture is made. The Government are sure that there will in practice be no question of the courts using the power indiscriminately.

The criterion used in the Amendment—whether the offence was"substantially the object"of the voyage—is not one that would always produce a clear result, or a result that seems right on the merits. If, for example, a pleasure steamer were to take 60 British passengers across the Channel on a day trip, and on the return voyage were to bring over 40 immigrants with a view to their illegal entry, could it be said that the conveyance of the illegal entrants was"substantially the object"of the return voyage? In such a case forfeiture might be well justified on the merits.

Having said that, we recognise that this is a matter of legitimate concern to the shipping interests. When the Bill was before another place, the President of the Chamber of Shipping made representations to my right honourable friend the Secretary of State. The Home Secretary took the view that because of drafting and other technical complexities, it was advisable for the matter to be thoroughly discussed between Home Office officials and the Chamber. I understand that a meeting has taken place and that, although agreement was not reached, we became better seized of the Chamber's difficulties; and we believe that representatives of the Chamber were helped to understand the position of the Government. I have taken careful note of what the noble Lord, Lord Macpherson of Drumochter, said in moving this Amendment on behalf of the noble Earl, Lord Lauderdale. I have pointed out some of the difficulties in the way of accepting the Amendment as it stands, but I give the assurance that we shall be very ready to consider further representations from the shipping industry during the Recess with a view to considering whether any Amendment to the Bill can be agreed upon, and we shall be inviting representatives of the Chamber of Shipping to come to the Home Office for a further meeting before the Report stage of the Bill.

12.40 a.m.


I am very glad to hear what my noble friend Lord Windlesham said in his closing sentences. I would support any practical action to suppress this illegal trade provided it was just, but, having listened to the noble Lord, Lord Macpherson of Drumochter, I am doubtful whether this clause as at present drafted would always do justice. I hope the noble Lord, Lord Windlesham, will not mind my reminding him that on Amendment No. 101C he said that it was important to include a safeguard in the law so that courts should not recommend deportation for trivial offences. I think in this case also it will be necessary to include something in the law to ensure that forfeiture is not ordered by a court in a case where that would cause injustice.

I am specially concerned about the case of the man who is a charterer but who is classified under subsection (6) as an owner. Subsection (7) says that the owner shall have a right to be heard, but he is not the charterer, and in the case of a long-term charter he might not even hear that a case was coming on in court until it had done so and his opportunity had been lost. I was also impressed by Lord Macpherson of Drumochter's point that all countries watch the shipping laws of this country with considerable care. If our legislation creates a precedent which other countries can take as a pattern for their law, we may easily find other countries, to the disadvantage of our shipowners, introducing legislation of a related kind which would make it easier for them to impose forfeiture on British ships, pointing to this as a precedent. I am quite sure that this matter can be got right in the interval between now and the Report stage of the Bill, but so far that has not happened. I myself am not sufficiently enamoured of the Amendment we are discussing, but I am greatly reassured to hear from the noble Lord, Lord Windlesham, that the Government are prepared to work further on this matter in conjunction with those concerned and to try to find an Amendment which will do justice.


I should like to support what my noble friend Lord Brooke of Cumnor has just said. I agree completely with the Minister in thinking that this Amendment will not do. I thought he provided good reasons for that view, but I have also received representations from the Chamber of Shipping which I find impressive. The concluding words of the Minister filled me with hope. I only add that this is a very difficult matter. I believe the Government have most legitimate desires which they are attempting to meet by these subsections, but I do not think they have succeeded yet. I think that in addition to any efforts of the Chamber of Shipping the utmost ingenuity of Parliamentary draftsmen may be required.


I wonder whether I may add one further word on this matter. The noble Lord, Lord Brooke of Cumnor, has certainly covered the important point here, but I should add to what he said that although in the wording of this measure the owner or manager or director of a company might be involved in illegal immigration, the problem I imagined was that where the crew, off their own bat and possibly unknown to the captain of the ship, aircraft or whatever it may be, might be attempting as a sideline to bring in illegal immigrants which, with a big cargo ship, would be a comparatively easy thing to do if the captain or the officer of the ship were not watching it. Very seldom in my experience at sea did we sail for a port without finding one illegal stowaway. Noble Lords would be amazed at the places they find. In eleven years at sea I suppose we managed to discover only one in a hundred stowaways trying to get from one place to another. So, if a crew were doing this, they could make a good traffic out of it, possibly for a long time, before the captain of the ship knew anything about it.


It was said in another place that the provisions of this Bill were not directed against the owners of large passengers ships. It was intended to deal with the smaller vessels. I am most obliged to the Minister for his reply. I was not really meaning to be frivolous in my remark about using a sledgehammer to crack a nut. Previously we had been talking about a penalty of £400 for some of these offences and as I was talking about ships worth £10 or £20 million, I think there is a certain justification for my remark. In view of the fact that the Minister has said that he will think about this point, I should be very glad if he could draft an Amendment which would meet the points that have been made this evening and also the Government's case.


I think that would be going a little farther than what I said. My right honourable friend's view on this, having received representations, is that the representatives of the shipping interests and the officials concerned should meet to try to reach agreement. If they reach agreement, I think we need have no fear that the Government draftsmen's services will not be called upon to express that agreement in a form that can be put in an Act of Parliament. But this is a more technical matter than meets the eye at first sight and I think most noble Lords who have spoken would agree that those concerned should meet with representatives of my Department to see what form can be agreed.

In doing so, I should like to take careful note of the points made in the course of the debate. Although it is true to say that small aircraft and ships are those mainly used for the purpose of illegal immigration, we cannot rule out large cargo ships or passenger vessels. Some noble Lords may remember the case of immigration from Israel in the late 'forties—admittedly an extreme case—when substantial ships were used for this purpose. There are examples where large ships could be used in present day conditions.

The noble Lord, Lord Brooke of Cumnor, asked about provisions in our legislation being copied elsewhere. As I mentioned in my previous speech, ships which are engaged in smuggling goods become liable for forfeiture under the Customs and Excise Act 1952, and if any country is looking round for a precedent, it would find one there. But I should like to take note of the various points that have been expressed and see whether, after further consideration, we can find some way of meeting the concern of shipowners and of noble Lords who have spoken in this debate.


May I inject a sour note into the discussion? Where people are concerned, even miserable people, everybody is entitled to be satisfied. If there is a £1 million ship with three immigrants on board, we should leave it to the court to decide what to do with it.


In view of the very helpful remarks of the Minister, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.


This may be a convenient moment to move that the House do now resume.

House resumed.