§ 3.36 p.m.
§ THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM)
My Lords, I beg to move that the House do 1126 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 EARL OF LIS TOWEL in the Chair.]
§ Clause 3 [General provisions for regulation and control]:
§ LORD GARDINER
I do not propose to move Amendment No. 44, but with the Permission of the Committee I will move Manuscript Amendment 44A. As this is a Manuscript Amendment may I first read it:Page 4, leave out lines 3 to 11 and insert (" Rules referred to in this subsection shall be of no effect until a draft thereof has been laid before and approved by a Resolution of each House of Parliament, and amendments to such rules made by the Secretary of State shall be laid before Parliament and shall cease to have effect at the end of the period of 28 days beginning with the day on which such amendments were made, unless during that period the said amendments are approved by Resolution of each House of Parliament.My primary purpose in moving this Amendment is not merely to persuade the Committee that it is an Amendment which ought to be made and which naturally I hope will find supporters throughout the Committee—
§ LORD WINDLESHAM
I am sorry to interrupt the noble and learned Lord, but before he launches on his exposition of the Amendment I wonder whether he could give us an explanation why this was tabled at about 12 o'clock to-day as a Manuscript Amendment.
§ LORD GARDINER
It was tabled because I felt that Amendment No. 44, while appropriate to the original rules, did not deal with amendments to the rules, whereas this Amendment does.
§ LORD WINDLESHAM
I appreciate that, my Lords, but the Second Reading of this Bill was four weeks ago. The noble Lord, Lord Shepherd, had indicated that this was a matter in which he was interested, and two Amendments, Nos. 44 and 45, have been down on the Order Paper, I think for some two weeks or so. I understand that the noble Lord, Lord Shepherd, was kind enough to 1127 telephone my office at about 12 noon to-day to say that Amendment No. 44, which the noble and learned Lord, Lord Gardiner, had actually started to move last night before we adjourned our proceedings by agreement, was to be withdrawn, and this new, quite detailed, alternative was to be tabled to the Committee as a Manuscript Amendment. I am not sure that we have had a very full explanation so far.
§ LORD SHEPHERD
I rise, first because on behalf of Her Majesty's Opposition I am responsible for this Bill and because it was I who drafted this Amendment. As the noble Lord has said, I immediately informed the noble Lord of the intention to move this Manuscript Amendment, and of the content of it. It is perfectly true that this Amendment was put down at 12 o'clock, but that is well within the rules of your Lordships' House. There is nothing in the rules of the House which in any way governs the time at which a Manuscript Amendment can be moved. In fact, it can he moved in the course of a debate. I gave the noble Lord information as quickly as I possibly could. The explanation why the Amendment has been so drafted is that it was done in the light of the debate on the first and second days in Committee, and to meet some of the difficulties that the noble Lord, Lord Windlesham, had in mind on a number of occasions when he spoke about Parliamentary control. It was, in fact, to amend our original Amendment No. 44 in the light of what the noble Lord has said. For that purpose the Manuscript Amendment is before the Committee. It is perfectly well within the rules of the House and I do not see any cause for complaint by the noble Lord.
§ LORD WINDLESHAM
I do not want to prolong this discussion. I shall be quite happy to advise the Committee that we should proceed on the basis of debating Manuscript Amendment 44A instead of Amendment No. 44, but I am sure noble Lords will feel that this is not a desirable practice and it is not something that we should let go by without any protest or any explanation whatsoever.
§ LORD SHEPHERD
The noble Lord may well say that, but he must recognise 1128 that we on this side and the Committee in general are under difficulties in this Bill. It comes very late in the Parliamentary Session and we have only a few more days before we come to the Summer Recess. We shall have to wait for Report stage. We thought it right to put this manuscript Amendment before the House and for the House to decide on the merits.
§ 3.41 p.m.
§ LORD GARDINER
I am grateful to the noble Lord, Lord Windlesham, for what he finally said. I was saying that while I hope noble Lords in all parts of the Committee might support this, few Amendments drafted by the Opposition turn out to be absolutely right, and my primary purpose is to invite the Government and the whole Committee to consider whether the Bill as it is now drafted provides for a sufficient measure of Parliamentary control; and, if not, what provision should be made, bearing in mind that the Home Secretary has an administrative task to perform, and that while we want proper Parliamentary control of the rules we must not, of course, make things either impossible or impracticable for him. Any Parliamentary control, I concede, which left us without any rules for a day, either would let everybody in or let nobody in—I am not quite sure which; I suspect everybody—and obviously ought not to occur.
There are two reasons why many of us, perhaps most Members in both Houses, attach a great deal of importance to proper Parliamentary control of the rules. The first is that there are so many things which many of us would have wished to see in the Bill but which are in fact in the rules. As we have said before, as long as Mr. Maudling is Home Secretary in any Conservative Administration, and the noble Lord, Lord Windlesham, occupies his present position, we shall feel less worried about that. It is 1129 because that might conceivably not happen that we are the more worried. Secondly, when we are considering the rules we have to bear in mind that this subject is one intimately concerned with human rights. Of course this country, like others, must have proper control of immigration. Of course it must be able to say to people,"You cannot come in here ", or to say to people who are here,"You have got to leave ", and be able to enforce it. But we must always bear in mind that this might involve human tragedies affecting individuals and families, often through no fault of their own.
The House may have seen in the papers the other day—I know nothing of it personally—a case in which a widow had lost her husband; she came from Cyprus, and her home in Cyprus had been blown up by members of the other race there. She had no family left in Cyprus, so with her children she came here. She was apparently not well educated; I doubt whether she would have passed the test of sufficient ability to read English. She had not done anything wrong, but she had misread a Home Office notice. Her children were here because they were being educated here. They spoke only English; they did not know a word of Greek or Turkish. It was, I think, the National Council for Civil Liberties who found her in Holloway prison, where she had been a considerable time, about to be deported with her children. That may have been perfectly right; I say nothing against it. But we must, of course, recognise that the lives of those children will now be entirely different, if they are deported, from what they would otherwise have been. The importance of the rules is that so many important things are in the rules and not in the Bill, and secondly, that we have very many human rights problems involved.
There is a small difference of opinion between the, noble Lord, Lord Windlesham, and myself which appeared the other day. I expect that he is right. It is a question of law. I expect that if all the Home Office lawyers are behind him he is likely to be right. The question was whether the rules confer any legal rights on anyone. I remember when Justice, the all-Party body of lawyers published a report advocating that we should have an Ombudsman. We 1130 brought over an Ombudsman to address meetings in London and Liverpool and elsewhere to explain about it. I took a particular illustration, I remember. If two disabled men are living in adjoining houses, one badly disabled and the other only slightly, and the slightly disabled man gets a disabled driver's car and the badly disabled man is refused, he is going to feel a grievance. There was no statutory right to have a disabled man's car, it was a pure question of discretion for the Minister. I said it might be that the explanation was that the two men had been dealt with by two different civil servants who had construed differently the Minister's instruction.
Of course, all Ministers have to give instruction to civil servants. They may not always be as clear as they should be. If that were the case, it would be an inadvertent piece of maladministration, but if the Ombudsman could walk into the office and look at the files and talk to the civil servants he might find out. If you ask a Parliamentary Question, the Answer is probably provided for the Minister by the civil servant who made the decision. These rules, as I understand them, are merely instruction by the Home Secretary to a body of civil servants in the Home Office, called immigration officers, of what their practice is to be:"You are to let in people in this category; you are not to let in people in that category ". If I am right about that, it still appears to me that such rules can give no legal rights to third parties.
It is said that there is sufficient Parliamentary control because the rules are to be subject to the Negative Resolution procedure, and, without taking up too much time, I would, if I may, remind your Lordships of the nature of that procedure. It is stated in Erskine May, Eighteenth Edition, page 568:As already mentioned, the commonest type of parliamentary control is a provision in the parent Act that the instruments made thereunder, though taking effect forthwith or on some named future date, shall be subject to annulment in pursuance of a resolution of either House of Parliament adopted within a named time limit. In pre-1948 Acts there was necessarily a specific provision that the instrument, when made, should be laid before Parliament; after 1947 this stage is universally required by the standardised procedure prescribed by the Statutory Instruments Act, 1946. If the parent Act stipulates that a statutory instrument made thereunder ' shall be subject to annulment in pursuance of a 1131 resolution of either House of Parliament ', this formula attracts the requirement of laying and the conditions of annulment contained in section 5(1) of that Act.Usually, once an Order has been laid at the proper time, any Member of either House can pray against it within forty days, and if the Prayer is successful the rules or regulations are annulled.
I turn to the present Bill to see what it actually provides. The first reference to the rules is in Clause 1(4), which says:The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act "—to be followed, that is, by the immigration officers—shall be such-and-such. One would have expected, I think, that the first thing we should find was a provision that"The Home Secretary may make rules ". But this is the first mention of rules, that:The rules laid down by the Secretary of State…That is an unusual expression. I do not know whether there is a precedent for it. In regard to rules, one usually uses the word"make ". Elsewhere in the Bill the usual provisions occur. For instance, Clause 4(3) says:The Secretary of State may by regulations made by statutory instrument, which shall be subject to annulmentand so on; and subsection (4) of the same clause statesThe Secretary of State may by order made by statutory instrument…make such provision…for records to be made and kept.This is all we have. Clause 1(4) refers to"the rules laid down "—which I suppose is the opposite to"laying them out ". It is an expression I have not come across before. It is not until we get to Clause 3 that we know what is to happen. Clause 3(2) begins:The Secretary of State shall from time to time lay before Parliament "—and perhaps the Minister can tell us what is the time element in"from time to time ". If I found that rules had been made and not reported to Parliament for a long time, what time would have to elapse before I could say that he has not done it"from time to time "? The wording seems to me to be completely open-ended, and to provide no proper time limit at all.
1132 As I was saying, Clause 3(2) says:The Secretary of State shall from time to time lay before Parliament "—not the rules: the rules are not to be laid before Parliament at all—statements "—I do not know of any precedent for legislation which provides a Minister from time to time to make"statements "—of the rules, or of any changes in the rules, laid down by him as to the practice to be followed ",and so on. What exactly these statements are to say, I do not know; whether the Secretary of State can merely summarise rules, or whether he is going to make a statement of a change he intends to make, or a change which he has made. It does not say which. We do not get to the Negative Resolution procedure until we come to the end paragraph of that subsection which says:If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days)certain things shall happen. But the rules are not annulled; as I understand it, no change at all is made in the rules. The subsection goes on:then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances and lay a further statement before Parliament accordingly.There is no provision that the further statement can be prayed against. There is no provision for what is to happen if the further statement is disapproved. This is nothing remotely like what we know well as the Negative Resolution procedure under which, if anybody prays successfully against regulations, rules, statutory instruments, and so on, they are annulled.
I invite the Committee to say that this is quite inadequate Parliamentary control. I draw a distinction between what I may call the first rules, and amendments. I can see no possible difficulty in providing that what are intended to be the original rules, which have been published, should be approved by Parliament. What difficulty can there be? There is plenty of time for it. I acknowledge that a different situation may arise when we come to amendments, but there again it seems 1133 there is no real difficulty so long as we say that any changes made in the rules are to take effect when the Home Secretary makes changes, but that they are then to be laid before Parliament and shall cease to have effect if, at the end of a given period, Parliament disapproves. The Government have recognised, of course, in the Bill as it is that there should be some sort of Parliamentary control. I submit that the control which is provided by the Bill in its present form is quite inadequate, and that the Amendment provides at least a solid basis for discussion as to the sort of form which proper control ought to take. I beg to move.
§ 3.56 p.m.
§ LORD WINDLESHAM
This is a somewhat complicated matter, and there are also practical implications which have not been brought out in what the noble and learned Lord said in his very interesting and thorough opening speech. It might be useful if I came in at this stage, and if any further points arise I can reply to them at the end. The first point I should like to make is that the immigration rules at present are not subject to any form of Parliamentary control at all. There are four White Papers, two of them containing the instructions to immigration officers; they were tabled by the previous Administration in February, 1970, and there is no Parliamentary control over them of any kind.
This matter was discussed at some length in another place. It was argued that Parliament should have an opportunity to discuss these rules, should be able to exercise a measure of control over them; and my right honourable friend accepted that argument. He thought it was right that there should be a measure of control. He then addressed himself to the question of what was the most appropriate form of Parliamentary control over the immigration rules, bearing in mind that the Immigration Service is a thousand people strong and that at the moment about 10 million passengers are coming into the ports every year. These are instructions to the Immigration Service, as the noble and learned Lord correctly said, and immigration officers are entitled to know under what instructions they should 1134 operate. Therefore an Amendment was tabled in another place to the Bill, and that has now been included in Clause 3 as subsection (2). The noble and learned Lord, Lord Gardiner, took us through it and asked me one or two questions. It says:The Secretary of State shall from time to time lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter "—and so on.
The noble and learned Lord asked two particular questions. The first was: what meaning do we attach to the words"from time to time "? The answer is: whenever the Secretary initially tables a set of rules (a set is before Parliament in draft form now), and thereafter whenever the Secretary of State believes that it is necessary to add to or alter the rules. Let us not overlook the question of adding a new rule, which was not there before, but which is introduced to meet a new situation. Secondly, I am advised that the word"statements"is chosen because the White Paper contains the rules themselves. The White Paper contains the whole set of rules, but they are preceded by a precise statement saying:This draft contains the rules which the Home Secretary proposes to lay down as to the practice to be followed in the administration of the Bill for regulating the stay in the United Kingdom of persons not having the right of abode.Then follows the complete set of draft rules which, as I have explained, are to be altered in a number of respects as a result of the debates in this House and in another place.
There is very little, I think, between the Parties on this particular point. We should all like to see the most effective form of control by Parliament of the Executive, but I think there is a difference here between whichever Party is in Government and whichever Party is in Opposition. All Governments have to accept responsibilities, but Oppositions, quite understandably, see no need to share them when they are not themselves forming the Administration. The previous Home Secretary, Mr. Callaghan, when giving evidence to the Select Committee on Race Relations and Immigration on May 1135 13 last—this is a quite recent statement—was questioned on the need to take swift action as regards the imposition of immigration controls. Remember, he was questioned in a context where the immigration rules were not then subject to Parliamentary control at all. Question 3,004 was:Should major changes in Commonwealth immigration control be made by Ministerial Order and so become subject to Parliamentary debate and approval at the time they are made?That was the question put to the previous Home Secretary, and his answer was as follows:The fact that they are made to Parliament is, of course, a recognition that Parliament wishes to debate them. I am pleading for flexibility and not for having my hands tied by detailed laying down of orders. I want to keep Parliament fully informed. Parliament can express their views, and should express their views, on these matters, but I want to consult, and do consult, bodies like the Community Relations Commission and anybody else who has got a particular interest in this. But there is one final caveat I want to enter; that is, when we are dealing with closing up bolt holes or abuses—for example, in the case of the Pakistani boys or in the case of fiances or the other little groups we have had—the very discussion of the fact that you are going to close up bolt holes automatically increases by several hundred per cent. the number of people who are going to arrive before the bolt hole is closed.A little later, Mr. Callaghan returned to this in answer to Question 3,006. He spoke on this question of bolt holes and loopholes in the system of immigration control. I will not read it all because it is very long, but this is a verbatim quotation from the published evidence:Therefore I insist, if I may, that if you want good administration here, that there must be occasions—and I hope they will be rare—when abuses have got to be dealt with when the Administration must be allowed to act, and then justify itself after it has acted, in the same way as the Chancellor does in relation to some of the measures he gets in his Budget.These are the words of the previous Home Secretary, in office at the time, who had responsibility, as my right honourable friend has now, for the effective operation of the immigration control.
This new Amendment—we have not even had time to become familiar with its number, but I believe that members of the Committee have it in front of them—would do the following. After the original rules had come into force (those which are now before Parliament) the Home 1136 Secretary, under Lord Gardiner's scheme, could make changes to them at any time he believed it was necessary to do so, or he could add to them if he thought it necessary. But the changes or additions would lapse unless they were approved by Parliament by Affirmative Resolution within 28 sitting days. This, I understand, would mean that if Parliament were in Recess and an Order or a new regulation was introduced in the summer, the time limit would be the first 28 days after Parliament resumed.
What would be the practical consequences of this for the Immigration Service? First, under the Affirmative Resolution procedure, from a Parliamentary aspect, the Government would need to find time in both Houses within 28 days to debate and approve any change, however minor. This would apply to any change; it might be a small one, but it would apply to any change at all. Secondly, either Parliament would agree, in which case the rule, which would already be in force under the noble and learned Lord's Amendment, would so continue. If the rule had been laid in the summer it might not be approved until about three months later. It would then come into force, assuming that Parliament could find time for the debate. There may be difficulties over that, but I assume that they could be overcome; the Home Secretary would have stated his intention and Parliament would have approved.
But if the change were not approved—let us envisage the alternative—it would then lapse. What happens then? There would be no rule in existence at all at that point. I am advised, although we have not had time to study this, that there is room for doubt as to whether or not the whole set of rules might lapse. The rules would be a Statutory Instrument presented to Parliament and, if Parliament did not like the change contained in a particular paragraph, there is the possibility that the whole lot might lapse and that the Home Secretary would have to come back to the House with another proposed change. However, let us not pursue that point because I am not sure of it, not having had notice. The noble and learned Lord says that it would lapse if Parliament did not agree.
The figure of passengers entering the country, which I gave, was in fact the 1137 earlier figure. I said that there were 10 million passengers coming through the ports, but in fact there are currently 14 million passing through the immigration control. Many of them need to be questioned for one reason or another by immigration officers, who can do so only on the basis of the immigration rules. These are the instructions they are given as to how they are to carry out their duties. What are they supposed to do in this situation?
Then there is the appeals system. We must not forget that the appeals system to a large extent turns on the published rules. There is a very wide range of what are called appealable decisions. I think this is in part the answer to the noble and learned Lord's question about rights. Appealable decisions in the period of nine months from July 1, 1970, to May 1, 1971, amounted in total to 10,714. Against all of these an appeal would lie: 2,198 were actually brought; that is, over 2,000 in eleven months. Of these, 147 were allowed—those were people who succeeded against the Home Office—681 were dismissed, 48 were withdrawn and 1,322 were outstanding at the end of the period. The rate at which appeals are being brought is currently running at about 200 a month.
If a new rule were introduced in the Recess, immigration officers might be working on the basis of that rule for a period of up to three months, although in November Parliament might not approve it. Then there would be no rule, or perhaps the intention of the noble and learned Lord is that the previous rule should apply. We think that these are practical problems which would arise from the noble and learned Lord's suggestion. We are not quarreling with the aim of the Amendment. The Home Secretary agrees that it is appropriate that, for the first time in our history, these rules should be subject to Parliamentary control, but for the reason given he thinks that the Negative Resolution procedure is more appropriate than the Affirmative Resolution procedure.
§ 4.10 p.m.
§ LORD SHEPHERD
I am grateful to the noble Lord, Lord Windlesham, for his statement on this matter and I hope that the noble Lord, Lord Conesford, 1138 will allow me to put one question to the Minister before he speaks. Would not the noble Lord, Lord Windlesham, accept, because he made a very considerable case, that in the event of any of the rules made by the Home Secretary being challenged by Parliament, then, by the Negative Resolution procedure, clearly the immigration officers would be in difficulties? Therefore, whether it is the Affirmative Resolution procedure or the Negative Resolution procedure that is adopted, I do not think the position of the immigration officers is involved.
May I also say to the noble Lord, Lord Windlesham, that we are concerned not only about the administration of the rules and the policy behind them in terms of immigrants entering this country. The rules will also cover fundamental issues affecting the rights of an immigrant once he has settled here. That is why we on this side are deeply concerned—and I have a feeling, after the previous two debates, that this feeling is shared throughout your Lordships' House—about the position of immigrants until after the five years when they become ordinary patrials if they have registered. Therefore, we must be absolutely clear in our minds. We are considering the rules under which a number of men and women from the Commonwealth will live and settle in this country, so we must ensure that the maximum amount of Parliamentary control is provided for.
I want to deal first with the Negative Resolution procedure. I have been in the House for a few years now, and I have found that we have no difficulty with the Negative Resolution procedure, because under the Rules of the House, and with the general understanding between the two Front Benches, matters of great issue can be raised. But in the House of Commons, which, in the end, has a greater responsibility than your Lordships' House, time is a great and increasing problem and I do not think there is any doubt at all that the Negative Resolution procedure raises considerable difficulties. I speak subject to correction, but I believe that the amount of time set aside in the House of Commons for dealing with matters that arise under the Negative Resolution procedure is very limited indeed. Certainly, one could not have a long and detailed debate if there were a big issue or a 1139 large document to consider. But the position is different if there is an Affirmative Resolution. It is then for the Government to come to the House to seek approval. The initiative comes from the Government and, clearly, the Government's managers in another place must provide adequate time for a matter to be considered. I do not suppose that we in this House are any different and, because of the good attitude between the Front Benches, adequate time will always be provided for the Affirmative Resolution.
I again remind the Committee of the importance that we attach to these rules, particularly the rules governing residence. This Amendment is a combination of Amendment No. 44 and an Amendment that was moved last night by the noble Earl, Lord Cork and Orrery. One of the difficulties with Amendment No. 44 was that it dealt merely with the initial draft, so let us take the relevant part of the manuscript Amendment. The Government can have no difficulty in accepting this. This Bill will not become an Act of Parliament until the"spill-over"period. There will be ample time for Her Majesty's Government to produce the rules and to present them to Parliament for Affirmative Resolution. There will be no gap whatsoever. So there is no question of difficulty about getting it through Parliament, nor is there difficulty as regards immigration control.
So what about Amendments? We thought—and this is why we have put forward the manuscript Amendment—that it was right and proper, that if an amendment was made to the initial rules it should come into operation immediately. I fully support what my right honourable friend Mr. Callaghan said in another place, which the noble Lord quoted fully. Clearly, the Home Secretary must have flexibility. Therefore, our manuscript Amendment states that amendments to the rules should come into effect immediately they are made by the Home Secretary. What we are saying is that once those rules have been made and have come into operation, they should require the approval of the two Houses of Parliament within 28 days. In principle, I do not think there is anything between the noble Lord, Lord Windlesham, and ourselves on this side. 1140 Right through the Committee stage, I think the case of the noble Lord, Lord Windlesham, has been based on administrative difficulties. What he asked last night, and he asked it again to-day, was: what would be the position if a rule had been made by Statutory Instrument—because that is the method which the Government would need to adopt in placing a rule before this House for approval—and, shall we say, after 14 days of Parliamentary time this House or another place rejected it? I am advised, and I have no doubt at all about this, that if a 28-day Order, similar to the Rhodesia Order—and I shall come back to that in a moment—was rejected on, say, the fourteenth Parliamentary day, that Order would remain in being until the 28 days had expired. In other words, if either House failed to pass it, the Order would remain in existence. The instructions to the officers at our ports would remain the same and there would be no question of any vacuum. The noble Lord looks slightly worried, but I have taken House advice on this matter.
§ LORD WINDLESHAM
But what happens, for example, if the House is in Recess? These are 28 sitting days and there could be a period of Recess of up to three months.
§ LORD SHEPHERD
The 28 days are Parliamentary days. If the Home Secretary wished to make an Order on August 7, 1971, two days after we hope to rise, that Order would continue to run without any question and the 28 days would start on the first day when Parliament resumed. If the Government were unable to get the Order passed within 14 days after the resumption of Parliament, then it would still continue till the end of the 28 Parliamentary days. If the noble Lord has any doubt, I would remind him of the Rhodesia Order. That Order was defeated in your Lordships' House but it continue in force until the date when it expired, and Her Majesty's Government of the day then put a similar Order before Parliament. So that if such an Order tinder the Immigration Bill was defeated, and the Home Secretary was not able to carry the necessary Amendments in order to secure the position that he believed was vital in terms of immigration control, he could re-lay the same 1141 Statutory Instrument at the completion of the 28 days.
I have taken advice on this matter, and I speak with the utmost confidence in it. I am putting the point to the noble Lord that his whole case concerning Affirmative Resolutions (and I think the Committee as a whole would prefer it to be an Affirmative Resolution in a matter of such importance to civil liberties); his case that administrative difficulties which would arise if Parliament was not able to pass the Order, or if Parliament did not pass it, within a period of 28 days, in fact does not stand up. I would ask the noble Lord, Lord Windlesham, if he fails to agree with me, whether he will tell me where I am wrong in terms of Statutory Instruments and the procedure of the House. I would certainly give way if he questions my advice.
§ LORD WINDLESHAM
I will; but my trouble is that the noble Lord has been immersing himself in procedural matters and taking advice while I have not had an opportunity to do so. I have reason to think that we would doubt some of the statements he has made, but I do not want to argue that now. What I am saying is that what he is suggesting is a hybrid procedure, and you cannot really have an Affirmative Resolution procedure which allows the Government to act first and seek Parliamentary approval afterwards.
§ LORD WINDLESHAM
Will the noble Lord follow me here? The difficulty is—and surely he can see this—that every hour, every day, every week passengers are coming through the ports. They are not going to stop coming. Therefore, suppose his Order was tabled in August, let us say, and Parliament was not sitting. I take it the noble Lord agrees that the rule can be changed. He agrees—am I not right?—that the rule can be changed. Suppose the Home Secretary decides to alter the rule on August 7 provided he gets approval from Parliament in the autumn, when Parliament resumes. If he gets that approval there is nothing 1142 between us—nothing at all. But the difficulty lies in circumstances where he does not get Parliamentary approval.
§ LORD SHEPHERD
But would not the noble Lord agree that if, using the Negative Resolution procedure, Parliament voted in the negative on the Order, the noble Lord would be in the same position?
§ LORD WINDLESHAM
No. This is the crucial point in the wording. I am glad we have arrived at this point, because the noble Lord put it to me earlier. That is not so. The wording (which appears on page 4 of the Bill) says that if the rule is not agreed it remains in force, and the Home Secretary then withdraws to consider an alternative rule and comes back at some appropriate time after consultation with the Immigration Service. The Parliamentary procedure that the noble Lord is suggesting falls the moment—
§ LORD WINDLESHAM
It does. The noble Lord has said that at that point you must revert to the previous rule. What I am saying is that you cannot do things like this when you have a service of this nature. You can do it where the Government may hold up action, or you may do it with routine business, but when you are talking of thousands of people streaming in and out of the country you cannot suddenly drop the chopper without any consultation or any information to the people involved.
§ LORD SHEPHERD
I do not want to stand between the noble Lord and the Committee in this matter, and this will be my last intervention on it. But the noble Lord will, I hope, accept that if a Statutory Instrument is laid under the Affirmative Resolution procedure for 28 days, if the Government were not able to get it through Parliament on the fourteenth day, or on any day up to the twenty-eighth day, the Order would continue to have complete legality and complete validity up to the end of the twenty-eighth day; and on that twenty-eighth day the Home Secretary would he entitled to re-lay an identical Order to carry all the procedures and everything else forward for that next month, and he would then need to come back to Parliament for it 1143 to be approved. I would ask the noble Lord to look into this matter, because I think it is of very considerable importance. I hope that the Committee will accept that we should find ways of achieving the Affirmative Resolution procedure, as opposed to the Negative Resolution procedure.
§ 4.27 p.m.
§ LORD CONESFORD
I intervene in the hope of clearing up a rather different point. I am not going to say anything about the comparative merits of the Negative or Affirmative Resolution procedure, but among the criticisms that the noble and learned Lord, Lord Gardiner, made of the existing lines 3 to 11 was one of, I think, very great importance, if the noble and learned Lord was correct. In the ordinary way I accept automatically the correctness of everything he says on a point of law, but I felt some doubt about this one, and it was not mentioned at all by my noble friend Lord Windlesham. As the noble and learned Lord pointed out when moving his manuscript Amendment, the words that he proposes to leave out, lines 3 to 11 on page 4, provide (I omit the words unnecessary for my purpose):If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House…then the Secretary of State shall as soon as may be make such chances or further changes in the rules as appear to him to be required in the circumstances and lay a further statement before Parliament accordingly.The noble and learned Lord said that there was no provision for the challenging of that further statement. I feel some doubt about that, because I think it is arguable that it would still be a statement laid before Parliament under the subsection. But if the noble and learned Lord was right, then there is quite clearly a defect in the words as they now stand; and what I wish to ask my noble friend is whether he can say that it is certainly the Government's intention that the further statement mentioned in line 11 on page 4 should be challengeable in exactly the same way. In that case the point made by the noble and learned Lord would be answered to that extent. Otherwise some change must be made. I fully agree with the noble and learned Lord that that follows if he is right that the further statement 1144 is unchallengeable. But I should have thought that a possible reading of the subsection was that which I ventured to suggest, that it would be challengeable in exactly the same way.
§ LORD WADE
I am not very happy with the wording as it appears in the Bill. In reply to the noble Lord, Lord Conesford (though it is for the noble and learned Lord, Lord Gardiner, and not for me to say), I should have thought that the further statement would be challengeable. That is my own view, but obviously there are more learned noble Lords who can answer that. So far as the manuscript Amendment is concerned, it puts forward two proposals. One is that the rules shall be of no effect unless approved by both Houses, and the other is that amendments to such rules shall be laid before Parliament and shall cease to have effect at the end of 28 Parliamentary days unless approved by both Houses. On the first point, we have already debated this question of Negative and Affirmative Resolution procedures, but I should prefer the proposal in the manuscript Amendment. I think it provides a better safeguard for Parliament and is reasonable.
On the second part of the manuscript Amendment I can see the balance of advantage and disadvantage. I appreciate the point about the Immigration Service and the request for flexible powers; but, on the other hand, one must consider the position of Members of both Houses. They must be given the opportunity of considering changes. One must also remember that various people are involved in advisory services on the working of these rules from whom Members of both Houses may require advice. It is not just a case of a Statutory Instrument being laid and then assuming that Members of Parliament will pick it up, look at it, know what it is about and decide whether it is right or not. This is just the kind of case where advice will be required. While I recognise that there are arguments both ways, I am saying that I personally prefer the manuscript Amendment to the present wording of the Bill.
§ 4.31 p.m.
When dealing with this particular Amendment, I think that we ought to keep in mind the fact that we are dealing with an entirely new 1145 approach to the question of citizenship and that there are some extremely important matters which, instead of being contained in the Bill, are contained in the rules. An important question is at issue here when, for example, you are dealing with a matter such as political asylum which is embodied in the rules. I know that it will be said that in any circumstances this rule prevails by international law; nevertheless, Rule 53 (and, I think, one or two others) deals with the question of political asylum. Political asylum is of extreme importance to many who feel it to be an essential right which should not be interfered with. Suppose a rule was brought in which would affect that situation, or a rule which would affect the question which I and others have raised before of acts performed by immigration officers and others in the exercise of their duties which could be regarded as discriminatory of race, religion and so on?
I should like to see these matters of fundamental importance incorporated in the Bill. I and others have said this before. If we could take the really fundamental matters out of the rules and put them in the Bill it would be a different matter. At the moment they are in the rules and not in the Bill; so we must try to safeguard the position so far as matters of that sort are concerned. The Negative Resolution procedure, as everybody here knows is of little effect so far as Parliamentary control is concerned. Under that procedure a statement would be put before Parliament and if Parliament disagreed with it the Home Secretary would then be in a position to suggest an alteration, and an amended statement again could be put before Parliament. That is really not good enough. In matters of this sort there must be some measure of direct control by Parliament; there must be at least the Affirmative Resolution procedure.
It has already been said so far as the original rules are concerned that there is ample time; that there is no question there of something having to be done so rapidly that it is impossible to deal with it in an executive manner. Of course there is ample time. There is no reason why the Affirmative Resolution procedure should not be used to give Parliament adequate control. As has already been explained by my noble friend, it may be 1146 that an Amendment has to be brought in. I do not see why, with the wisdom and understanding of the Minister and his advisers, the original rule should not be of such a nature as to take into consideration any likely contingency. It might be that contingencies would arise which would have to be dealt with at once. Why should not Parliament have control over them as well?
§ LORD WINDLESHAM
Forgive me for interrupting. I take it that these arguments are the arguments of a Parliamentarian. How does the noble Lord square them with the remarks by the former Home Secretary who was speaking at that time as a member of the Government? He gave the reason why, in his view, swift action was needed.
I should have liked to argue that with the ex-Home Secretary. If the present rules are to be brought into force, would the noble Lord say that there is any real reason why Parliament should not have the right to say whether those rules are in order or not? If the noble Lord will go so far as to say,"Yes, I am prepared to examine the rules, to take out those which are questions of principle and which it would he dangerous to leave in the hands, not of the present Home Secretary nor of others whom we consider at the present time as being likely to be Home Secretary, but of someone in the future, when a danger may arise ", or give an undertaking at Report stage that he will allow these particular rules to be incorporated into the Bill itself and leave in the rules the others which are purely matters of routine or of administration, that is an entirely different matter. But at the moment we are, in the rules, dealing not only with methods of bringing into effect the procedure necessary to carry out the provision of the Bill, but with principles as well. If he were to say to us, now,"Yes, I agree, we will examine This position," then perhaps the position might be different. But as it stands at present there is this danger. If he were to look at the question whether the original rules should come under the procedure of an Affirmative Resolution and how the later rules might be brough under Parliamentary control after they had been produced, then the matter might be considered in a 1147 different light. But I hope he understands that it is not just a frivolous argument that is being used; it is really important because of the issues that confront the House.
May I give an example on the political issues? This Committee knows very well that my own community, the Jewish people, are faced with a tremendous problem in the treatment of the Jewish people in Russia. The question of political and religious asylum arises there. It is something that cannot be played about with. We know that a fairly large number of people want to escape from the conditions that prevail. Some may want to come here. If someone altered the rules without Parliament intervening, or having the possibility to intervene, it would create a situation in which political refugees of that sort—religious refugees, or those who were being subject to religious persecution, would not be able to obtain that asylum. That is one of the reasons why I think the Government ought to reconsider this matter. The position is now different from that which prevailed before. The Act changes the whole of the previous system to a very considerable extent, and in those circumstances Parliament ought to be consulted.
§ LORD ROBBINS
My Lords, this is not a matter of constitutional law which is at issue. The noble Lord, Lord Windlesham, has put forward an extremely powerful case for administrative flexibility, and I do not believe that any of his critics have disputed the need for administrative flexibility. But the noble Lord, Lord Shepherd, disputed the argument that flexibility would be denied by the Amendment. To me, the crucial issue is whether the noble Lord, Lord Shepherd, was right or not. On that point I feel completely ignorant at this moment.
§ 4.43 p.m.
§ THE EARL OF CORK AND ORRERY
The noble Lord, Lord Janner, did extremely well to remind us that there is a relationship of a particular kind between the rules and the Bill, and that we might well reflect that this is in fact an immigration Bill. Immigration means coming into the country from somewhere else. The Bill has a short piece at the beginning about people who are not concerned 1148 with immigration control, and a very great deal about what can or cannot happen to people once they have got here. There is a page or two in between, in the middle of this rather exiguous sandwich, which is actually concerned with immigration. The chief piece of that middle part of the sandwich is simply a statement to say that the law about immigration will be laid down by the Secretary of State. In other words, the Immigration Bill contains little or no immigration law, which is a very curious kind of legislation.
What we have instead—and I use this term for the sake of argument—is delegated legislation. Almost the whole power to legislate for immigrants coming into the country is handed over to the Secretary of State. There are many ways in which this delegation of power can be given, according to how much control Parliament wishes to have, or what is laid down. There is the minimum delegation, which retains maximum power and authority in the hands of Parliament—such as, for example, a law requiring a Statutory Instrument to be laid subject to the Affirmative Resolution procedure. At the other end of the scale there is the Negative Resolution procedure, or even no resolution procedure at all, in which the Secretary of State can make laws and even may be allowed to get on with the job himself without intervention from either House of Parliament. That is at the far end of the scale, what I might call the bottom end. It is at that end of the scale that this particular piece of legislation falls. I think it is the wrong end. This matter is far too important.
I hope noble Lords will forgive me if I abandon the technicalities that have been discussed with great learning and persuasion, and talk simply on the broader issues I have already indicated, which amount simply to the fact that when it is a question of the lives, welfare, total future of people and a great many other matters affecting them, this is not something that can be handed over to someone else to let them get on with. It is likely that in answer it will be said,"We are doing no such thing; Parliament does retain its control over a procedure which is supported by the Government and which is opposed by others ". But the Government retain no control at all. If we refer to the subsection 1149 under dispute on this Amendment, we find towards the end of it—these words have been quoted by the noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Collison, not quite in the way in which I propose to take them—then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required.Supposing the changes that appear to the Secretary of State to be required should be nil? I feel that those of your Lordships who had required him to go away and think again would feel a certain sense of frustration stealing over your noble heads when you found that the Secretary of State was going to do no such thing, and you could not do anything about it; all you could do would be to go on asking him to go away and change his statement, not his rules, because they were not in front of you—
§ THE EARL OF CORK AND ORRERY
I was coming to that in a moment. It is true that the rules are in the statement, but it is still a statement, not a Statutory Instrument or something that Parliament can reject. All Parliament can do is to say that in its opinion changes should he made. I willingly concede to my noble friend that there may be changes to the rules, but all the House can do is to ask the Secretary of State to go away and to do what he thinks ought to be done. What is there to prevent the Secretary of State from saying that he does not think anything ought to be done? He will then lay exactly the same rules again and make exactly the same answer. He can go on doing that, operating precisely the same rule, until the next General Election, and even after that if he should get in again.
That takes me back to the point at which I said"for the sake of argument"I would refer to this as delegated legislation, because it is not delegated legislation, it is transferred legislation; it is handed over entirely to the Secretary of State. That is perfectly splendid if you have a perfectly splendid Secretary of State. At the moment I think that we have, and it is very likely that any other Home Secretary would be equally competent and honourable. But 1150 supposing he were not to lay his papers at all? I use the word"papers"in the sense of meaning nothing in particular—whatever it is he has to lay. Supposing he were not to do it, and that he incurred the displeasure of the noble and learned Lord, Lord Gardiner, by not laying them from time to time or as soon as may be.
What happens then? The rules he has made go on running and can run for ever. This in fact happens. If anyone thinks it is inconceivable that this would ever happen, may I recall to him that only yesterday afternoon, when my noble friend Lord Denham said that it was inconceivable that a court of law should behave in a particular way, he was very smartly disabused by no less a luminary than a former Lord Chancellor. All these things are conceivable. There is a case history on this. There was a particularly startling case in 1944, when Parliament was suddenly informed that no fewer than 22 sets of regulations under Acts of Parliament had simply been forgotten, not produced to Parliament at all; and some of them were three years old. Those regulations would have run for ever—for all I know, they may be running now. The fact that they had not been brought before Parliament did not make the slightest difference. Parliament might have wished to throw them out, but it never had the chance. I understand there is a possibility that such a mis-procedure, such a failure to act, might be a misdemeanour at Common Law. It was supposed that the Secretary of State of that time was possibly at some risk. He did not in fact get clapped into a dungeon, but Parliament had to pass an Act of Indemnity to keep him safe.
Is it right to hand over everything to any Secretary of State without any control at all? It certainly is not. I am speaking at this moment partly because I moved an Amendment last night in order to substitute the Affirmative for the Negative Resolution procedure. I withdrew that Amendment because I believed that Amendment No. 44 from noble Lords opposite was to be preferred as it dealt with the procedure to be applied to the rules. But my feet have been cut smartly from under me. I found that after I had withdrawn my Amendment in favour of No. 44, No. 44 had been thrown out of the window before I got here this morning. Fortunately for my sanity, No. 44A 1151 has been substituted, and I am happy to tell, your Lordships that I approve of that one, too. I need not go into all the technicalities of these procedures. I wish to stick to the general point and make a general request. I prefer the reference of my noble friend Lord Windlesham to what Mr. Callaghan said about the need for speed when it is a question of blocking up boltholes. It seems to me that we can block up a bolthole much more quickly under the Affirmative Resolution procedure than under the Negative. However quickly we act under the Negative procedure, we still have to wait until, the end of the 28 days or 40 days, or whatever time it is, whether we like it or not. On the other hand, under the Affirmative procedure, we can get an affirmation, if we are going to get it straight away, as soon as we get the Order through both Houses of Parliament. If anyone is doubtful about that, I can only suppose that he took no part in that nightmare procedure three years ago, when we got the whole of the Commonwealth Immigration Bill of 1968 through both Houses of Parliament in one continuous Sitting. I simply do not believe that boltholes cannot be blocked up with reasonable dispatch.
All I hope is that the Government will give the attention, which I think they reasonably can, to the Affirmative procedure as against the Negative. If this is the way to do it, I am all for it. If there is another way which the Government consider better, I am for that, too. But as this is the one before the Committee at the moment, it is my earnest hope that my noble friend will undertake at least to consider, not necessarily the actual words of the Amendment, but the principle, which I most strongly support.
§ LORD HOY
I had not intended to intervene on this Amendment, but will do so for just a few moments because not long ago I was involved in a case of this kind in your Lordships' House. The Minister of Agriculture, Fisheries and Food made an Order under an Act of Parliament to make grants of subsidies to this industry. The Order had to be made subject to Affirmative Resolution, and in this House this means that the Order has to go to the Special Orders Committee, 1152 who examine it to see whether it conforms to the law. On this occasion the Special Orders Committee came to the conclusion that it was all right, but the corresponding Committee in another place came to the conclusion that the Order was wrong and that the Minister had acted ultra vires. So a new Order had to be made. By having the Affirmative Resolution procedure, Parliament was able to preserve the rights of the people and not hand over to a Minister a power which would allow him to do what he liked. I should have thought that since we took all that trouble on that occasion, when it comes to an issue like this, which from the point of view of many is much more important, we are not asking too much in asking the Government of the clay to bring the Order before both Houses for Affirmative Resolution.
§ LORD WINDLESHAM
Before the noble Lord sits down, perhaps he would help the Committee with a little more information on that case. Could he tell us whether the action the Minister proposed to take had already been taken—in other words was a new situation in existence—or was it proposed? My recollection is that a certain course of action was proposed, but the noble Lord was much closer to the matter than I.
§ LORD WINDLESHAM
Had the Minister started to make grants, to hand out public funds, and had these grants then to be taken back?
§ LORD WINDLESHAM
This illustrates that immigration officers would actually have to act on the instructions given to them. I am interested in this case because I did not know the end of the story, and the noble Lord, Lord Hoy, was involved in it. What he seems to be telling us is that the Minister had 1153 to take back the grants made, and where public funds had actually been handed out, people had to return the money.
§ 5.0 p.m.
§ LORD WINDLESHAM
This has been a most interesting debate. Let me start with one or two detailed points. The noble Lord, Lord Conesford, and the noble and learned Lord, Lord Gardiner, in opening, asked me about the words in line 11 with reference to laying a further statement. He asked whether, under the procedure envisaged in this subsection, if Parliament did not agree to the statement (and I think we now have it clear in our minds that the statement is the immigration rules themselves with the introductory paragraph at the top of them) the further statement would be open to challenge. All I can say to the noble Lord is that I have taken advice on this matter and that advice is that it would, because it would be regarded as a statement for the purposes of line 37 on the previous page, where it says that the Minister must make a statement. So his further statement, another statement, would be open to the same procedure; and if he again ran into difficulty and Parliament was not willing to approve the statement, the procedure would go on until such time as Parliament did approve a statement.
The noble Lords, Lord Shepherd and Lord Janner, made the absolutely valid point that the immigration rules concern not only the admission of people into this country but also to a considerable extent the conditions of stay of people already here. Indeed, this is the reason for the title of the two White Papers. One is headed"Control on Entry ", and deals specifically with the matters that have to be resolved at the point of entry; and the other is headed"Control after Entry ". I really must make the point, in passing, that one of the challenges made to this Bill is that it is unnecessary: that the numbers are under control; and that the 1962 and 1968 Acts may not be perfect 1154 but they are better than introducing a Bill of this sort. I should not like to quote the noble Lord directly, but I think he used an argument on those lines in his Second Reading speech. If we did not have the Bill, let there be no mistake that there would be no Parliamentary control of the immigration rules at all; there is none at present. The previous immigration rules were tabled by the Labour Administration in 1970, and they are not subject to any Parliamentary control. Therefore, if we had no Immigration Bill, we should have no Parliamentary control over the immigration rules. Let us bear that point in mind as we proceed with the debate.
The noble Lord, Lord Janner, really dismissed my intervention, when I asked him how he reconciled what he was saving with the statements made by Mr. Callaghan when giving evidence to the Select Committee on Race Relations and Immigration, by saying in effect that if he had been there at the Select Committee he would have grilled the Home Secretary of the day as hard as the Members of Parliament did. I am sure that he would, and these were critical questions, put to Mr. Callaghan in that spirit. But I merely make the point here—and I said this in opening—that there is not really a difference between the Parties. I think that all Parties want effective Parliamentary control over the Executive. It is when a political Party becomes the Government of the country, when it has an actual responsibility for the administration of different aspects of the law, that sometimes it sees matters another way: and Mr. Callaghan's views are on the record.
The suggestion was made by one or two noble Lords who spoke in the debate that if the subsequent changes, if the additions to the rules, cannot be made subject to the Affirmative Resolution procedure—because I think they accept, although they may not agree as to the extent of the implications, that there are likely to be substantial practical implications—would it not be possible, as indicated in the early words of the Amendment, to make the first two sets of rules subject to the Affirmative Resolution procedure and the subsequent changes to the Negative Resolution procedure? That is rather an attractive half-way house. It sounds a most reasonable proposition, and 1155 it is not one that I want to be at all dogmatic about. But I think that, in practice, there is not a great deal in this argument.
When the Bill was published in March of this year, about five months ago, my right honourable friend was determined that these two draft statements should be in front of each House when the Bill was being debated. So we have had them before us and we have debated them. They are not part of the Bill, but many references have been made to particular rules, and certainly the Government have not objected to that. I said yesterday that we intend to alter one of the rules on a particular point: and these changes will all be made. So if noble Lords wish to raise or challenge points in the immigration rules there will be opportunities as we go along. If at the end of the day they are still not satisfied with what is in the rules, they will have an opportunity, when the final regulations are tabled, to disapprove them by the Negative Resolution procedure. If at that stage we have not been able to meet the various points made, it will then be possible for noble Lords to have a final say.
On another point made by the noble Lord, Lord Janner (and this has been said before), one really must give him the reply that is due. He said that he would like to pick out a set of facts which to him are particularly important and put them in the Bill, because then, whatever happened in the future, they would be in the Bill and not in the rules, and only Parliament could subsequently alter them. But this conflicts with the argument used, for example, by the Community Relations Commission. They have said that they want this to be the last Immigration Bill for a long time. They think that any Immigration Bill does harm to community relations—this is their line of argument—and they would not like another. You cannot have it both ways. Unfortunately, the law is not a monument of stone which cannot be altered in the future. If too much were cast into law, the system of immigration control would become monolithic; and as patterns of migration changed, you would not be able to alter the law to match them.
Will the noble Lord forgive me for interrupting? I was not 1156 talking about matters of a trivial nature; I was talking about matters of principle, such as religious asylum, the right of a person to have his racial faith respected. These are things which nobody dealing with the Bill would deny at the present time. What I and my colleagues are worried about is the fact that somebody may come at some future time, and then it is essential for these principles to be embodied in the Act so that Parliament will have a say.
§ LORD WINDLESHAM
To have principles entrenched in the Bill sounds admirable. But let me give the noble Lord an example of this. In 1962, as the noble Lord may remember, the rights of dependants were entrenched in the Commonwealth Immigrants Act. What the Act said was that a child with either parent in the United Kingdom had a statutory right of entry. I think the noble Lord would feel that that was a point of principle. Would he feel that that was a point of principle?
§ LORD WINDLESHAM
That is one of the points referred to by Mr. James Callaghan as a"bolt hole ". For example, what happened in the case of the Pakistani boys? Because there was a right to join one parent, the father of the family (I am speaking in the past tense about this) would settle here, and at the age of about 15 or 16, a working age in Pakistan, the boys of the family would come to join him. Noble Lords who were close to community relations at that time may remember the consequences of this. They were fought by international social services. It was found that in some parts of the country there were households sleeping about twenty boys to a room. These were all-male households. The boys were sent over, not as part of a family unit, as Parliament intended, but for the purposes of work; and they lived in a household composed entirely of men sleeping on a shift system. This was regarded as a social evil which had to be stopped it was referred to as a"bolt hole"by Mr. Callaghan.
Here was a principle that was altered by the previous Administration in the 1968 Act. They were introducing the Act for quite separate reasons, as the noble and learned Lord, Lord Gardiner, will 1157 recall; but since an Immigration Bill was before Parliament or at least in the offing, it was possible to table an Amendment bringing about the present position, that a dependant does not have the right to join one parent in this country but may do so only where there are two. I think the noble Lord will take my point, that matters of principle cannot altogether be distinguished from matters of practice, which do alter as patterns of migration alter.
I do not want to speak for too long in winding up because I spoke for some time in opening. I think the noble Lord, Lord Robbins, put his finger on this point: he asked whether the flexibility of the Immigration Service would be impaired and said that he was not sure of the answer. What I can say to him is that, unfortunately, we only had warning of this manuscript Amendment, as I said in opening, during the course of this morning. My advice is that it would; but that advice may be wrong and perhaps we should consider whether we need to qualify it. I am advised that the flexibility and the efficient working of the Immigration Service, and of the appeals system, would be impaired.
The particular Amendment which is before us is faulty in a number of ways. The noble Lord has made great play with"28 Parliamentary days ", but it says"28 days"and"Parliamentary days"are not mentioned. I do not think, from the advice that I have been given, that the wording will in fact serve to revive the old rules if the new ones are not approved. Therefore, if that is so—and I say it with qualification, but this is the advice that I have been given—there would he no rules, and that really must be an absurd situation.
What I should like to do, although I cannot advise the Committee to accept the Amendment, in the light of the comments that have been made, is to have a look at the wording of subsection (2). This was put in, as I have said, as an Amendment in another place; and it was the Home Secretary's view that there should be Parliamentary control for the first time over the Immigration Rules. Perhaps we could see whether there are any aspects in which this could be amended to meet points that have been made. The noble and learned Lord, Lord Gardiner, in particular addressed 1158 himself to the wording of the Bill and made some points which we ought to look at. If during the course of our review we can incorporate any aspect of the Amendment of the noble Lord, Lord Shepherd, and take account of any points that noble Lords have made in the course of this debate, I shall be very pleased to do so.
§ LORD SHEPHERD
Before the noble Lord sits down may I ask him this question: when the statement raised in the Bill is laid before Parliament presumably it will be laid in the form of a Statutory Instrument. Can the noble Lord confirm one way or the other?
§ LORD WINDLESHAM
I think not. We are in deep procedural waters here, but, technically speaking, I do not think it would be regarded as a Statutory Instrument—yes, I can confirm that it will not be a Statutory Instrument within the meaning of the Statutory Instruments Act.
§ LORD SHEPHERD
I think I shall advise my noble friends to respond to the suggestion made by the noble Lord, Lord Windlesham, that we should give the noble Lord an opportunity to consider the manuscript Amendment that we have laid to-day and the views that have been expressed upon it. I hope the noble Lord will bear in mind a number of factors. I shall he very brief. First of all, it seems to me that there will be two statements to go before Parliament. The one dealing with entry is perhaps the area where the greatest flexibility is needed, and the noble Lord himself drew attention to it in his winding-up speech. The second document deals basically with the conditions and the rights of immigrants once they have been legally accepted into our community. I can only say that from my experience of Constitutions which have been organised and negotiated with Commonwealth countries, this is one aspect which we have always ensured was deeply entrenched in the Constitution. In other words, we seek to maintain the greatest degree of stability and security for the citizens. In this country, of course, we have no written Constitution and therefore the safeguard can only lie with the British Parliament. I would therefore ask the noble Lord to consider whether it would be possible for the rules regarding entry to have perhaps this 1159 higher degree of flexibility, whereas the rules dealing with residence and conditions should have a greater degree of protection.
We accept that there must be a degree of flexibility, and none of us on this side of the Committee at any time has has ever suggested that that flexibility should not be there, but we wish to ensure that there is full Parliamentary control. In my earlier speech I mentioned the question of time in another place. The noble Lord, Lord Aberdare, will know that at the beginning of our Committee stage we on this side put down a number of Amendments probing the position in circumstances where an immigrant might fall sick or become unemployed, together with other matters. The noble Lord gave us satisfactory answers.
That debate took some three hours in your Lordships' House. Does the noble Lord, Lord Windlesham, have any idea as to how long the other place will have to debate an important document under the Negative Resolution procedure? I think it must be 1½ hours, or perhaps less. I may be wrong, but that is my understanding of the current rules in another place. Under this procedure it would be very difficult indeed to examine the rules thoroughly. I think that in the interests of the new citizens who will come into this country after the passing of this Bill we should devise ways and means of securing the utmost conceivable Parliamentary control while maintaining flexibility.
In the light of the noble Lord's undertaking, which is similar to others given during the course of the Bill, I will certainly recommend to my noble friends that we should not press this Amendment but that we should withdraw it and come back to it at a later stage. I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.19 p.m.
LORD BROCKWAY moved Amendment No. 45A:
Page 4, line 25, leave out subsection (4).
§ The noble Lord said: Lord Kilbracken is unavoidably absent, and he has asked me to move this Amendment on his behalf. I hope that the Committee will permit me to do so. I was able to discuss 1160 what was in the noble Lord's mind, and he indicated that his purpose was exploratory, that he did not understand from the clause what this subsection conveyed and that he would like some explanation of it.
I do not think there is any question that my noble friend Lord Kilbracken had some reason to be doubtful. In long experience I have rarely read a subsection whose purpose is so submerged by the language in which it is expressed. It says:
A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply.
In the early hours of this morning, after I returned home from last night's debate, I tried to analyse the meaning of this subsection. I should be grateful if I could have an endorsement from the Government Benches of what I came to understand the subsection to mean. It appeared to me, after a first, second and third reading, to mean this: a Commonwealth immigrant, under this Bill, will require permission to visit a territory, other than the British Isles, the Isle of Man or the Channel Islands. If he overstays his leave, his right to remain in this country will lapse. I hope that that is a common-sense explanation of this extraordinarily abstruse wording in this particular subsection. As I looked into this, I had doubts not only about the wording of the subsection, but also as to its justification. The immigrants concerned are already tied down to an employer. I have described that as"indentured labour"because if they come into conflict with the employer, and are dismissed, they will be liable to deportation. This clause seems to suggest that they would not merely be indentured labourers, but territorial prisoners.
§ Let me describe what would occur: if an immigrant wished to pay a weekend visit to Paris or Brussels he would have to obtain a passport. That passport would be endorsed with the limitation of the leave which he was granted. If he failed to carry out the terms of that passport he would be open to all the penalties 1161 to which anyone else not observing the conditions of a passport would be subject. If he failed to return to his employer within the period, it would be the duty of the employer, under this Bill, to report that fact to the police. He would be an illegal resident in a foreign country, France or Belgium. In those circumstances, the police would act. They would act, as they do under such circumstances, under Interpol. The French or Belgian Administrations would be informed that the person was an illegal resident in their territory. That individual would come under the ordinary police procedure for evasion of passport regulations. An immigrant may remain in this country provided that he complies with the condition that he shall work for an employer, and he has an obligation to that employer. If he fails to work as required, if he overstays the leave which is granted in his passport, the employer will immediately know. The employer, if he has a grievance, will report the matter to the police and the ordinary police action will be taken.
§ In those circumstances, this subsection is not necessary in the Bill. The obligation under this Bill is for the man to fulfil his duties for one year with his employer. Why should the clauses of the Bill affect the right of that man to go on a weekend visit to France or Belgium, when the ordinary penalties which apply to a breach of passport would apply in any case? I beg to move.
§ 5.28 p.m.
§ LORD DONALDSON OF KINGS-BRIDGE
The closer one looks at this clause the more peculiar it appears to be. I am very grateful to my noble friends Lord Brockway and Lord Kilbracken for bringing this matter up. By a"person"in this context we mean a man with a work permit which is valid for a year. It does not say that a person requires leave to go away, but that his leave to stay here—which is his work permit—will lapse if he goes away. Then, if you interpret the verbiage which follows, it means,"and does not come back again ". This is not surprising; if he goes away and does not come back, it seems that my noble friend is right in saying that this subsection need not have been included in the Bill. I have no point to make except that if that is what the subsection means, then clearly it is quite unnecessary.
§ LORD DENHAM
I wonder whether it would be a good idea to deal with the next Amendment as well, as it is on very much the same lines?
§ LORD WADE
In view of that suggestion, may I ask a question? First, I should like to read part of this subsection; namely,A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave…Presumably that means"leave to enter or remain ". He returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter. What are the circumstances in which he will require leave to enter if he comes back within the time for which he has already had leave to enter? Pursuing that point a little further, what in practice is going to happen if someone who has leave to enter for a period of time wishes to leave the country for a holiday or for some other good reason? Does he require approval to leave the country, and does he require leave to come back? Alternatively, in what circumstances does he require leave to re-enter? On the face of it, this is a rather complicated situation. It seems to me that a great deal of work is entailed for the immigration officers. There may be excellent answers to all these points, but, as I say, on the face of it it is an extremely complicated situation.
§ 5.31 p.m.
§ LORD DENHAM
I am sorry that the noble Lord, Lord Brockway, and his noble friend for whom lie is speaking, found the wording of this subsection particularly complicated. In fact, inasmuch as any Bill is easy to read, I did not find this trouble myself. Subsection (4) provides that:A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area…unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter…".In answer to the noble Lord, Lord Wade, I would tell him that circumstances in which the person does not need leave to enter are given in Clause 8, subsections (2) and (4). The kind of case involved is 1163 that of a member of the staff of a diplomatic mission. The effect of the Amendment would be that a person who had once been given leave to enter the United States could re-enter as often as he wished during the period for which leave had originally been given without obtaining any further permission.
§ LORD LEATHERLAND
The noble Lord referred to the United States. Did he intend to refer to the United States or was he thinking of the United Kingdom? We have not yet been taken over.
§ LORD DENHAM
I am sorry. I was not aware that I referred to the United States. To enter the United Kingdom was what I meant.
Under subsection (1)(b) of Clause 3 leave to enter may be given either for a limited or for an indefinite period. Where leave has been given to a person for a limited period, and he goes abroad, say on holiday, and returns during that period, the normal practice is to readmit him for the remainder of the period. To the noble Lord, Lord Brockway, I would say that he does not ask for leave to go abroad but his coming back is subject to permission. But it would not be sensible to give him an automatic right of re-entry during the period because the circumstances may have changed completely in his absence abroad. Take the case of someone arriving from the United States (and I do mean the United States this time) with 10,000 dollars who is admitted as a visitor for six months. If a week later he moves on to Monte Carlo and another week later arrives back here penniless, having lost his 10,000 dollars, should he be entitled to readmission for the remainder of the six months?
§ LORD DONALDSON OF KINGS-BRIDGE
He need not go to Monte Carlo to do that. The situation could arise in London on any day of the week. This is a most extraordinary argument.
§ LORD DENHAM
That is absolutely true, but the point is that he is granted entry to this country subject to certain conditions. If he goes away again and then comes back, and the same conditions do not apply as did on his original entry, then his entry should be subject to his obtaining further permission.
1164 Somebody may be admitted as a student for 12 months having ample funds to pay for his proposed course of study. If he devotes his funds to having a good time here and on the Continent and on his return tells the immigration officer he has come back to look for full-time employment, should he be entitled to readmission? Obviously the conditions under which he wished to come back would be completely different from the conditions on which he came in the first place. The only safe rule is that contained in paragraph 52 of the Draft Immigration Rules (Cmnd. 4606).His application to re-enter should he dealt with in the light of all the relevant circumstances. The same time limit and any conditions attached may be reimposed or it may he more appropriate to treat him as a new arrival.As to persons who have once been given leave to enter for an indefinite period, the effect of the Amendment would be that they would for ever after have the same right of entry to the United Kingdom as if they were patrials. Admittedly it is right that, once an immigrant has been accepted for settlement, he should have some assurance of being able to resume residence here after absence overseas. The Commonwealth Immigrants Act 1962 provided that a Commonwealth citizen ordinarily resident in the United Kingdom without limit of time was to be readmitted after up to two years' absence; and paragraph 50 of the Draft Immigration Rules (Cmnd. 4606), similarly provides that any returning resident, Commonwealth or alien, is to be readmitted after up to two years' absence unless he has been repatriated at public expense or there are grounds for refusing leave to enter under paragraphs 59 to 61—that is, criminal record, deportation order, exclusion conducive to public good.
§ LORD DAVIES OF LEEK
I was looking at that provision. On the period of two years, supposing a Hindu or Pakistani goes abroad and there is terrible trouble among his family there. There would be no doubt at all about the re-entry of that person, would there, even if it took two years or just over two years for him to attend to his family troubles?
§ LORD DENHAM
If the circumstances were the same when he wanted to come back as they were when he got the original entry, I cannot imagine that he 1165 would not get in in exactly the same way. But the Amendment would allow any immigrant who had once been accepted for settlement to re-enter however long he had been out of this country, even after 10, 20 or 30 years, and whatever his conduct in the meantime or his intentions for the future. Such a concession cannot be justified.
If I may answer just one question of the noble Lord, Lord Brockway, I was asked about a man who goes abroad on holiday, perhaps overstays his leave and loses his job. He will not be automatically sent out of the country on his re-entry. The Department of Employment would help him to find other work if this was possible within the scope of the present scheme. But this subsection gives a chance to make sure that the conditions when a man re-enters the country are as favourable as the conditions when he originally entered.
§ LORD BROCKWAY
I am very interested in that reply, although I am a little bewildered by it. I am bewildered because I find it very difficult to believe that this subsection related to a visitor from the United States or from Europe, or a student, and that that was its purpose. It is in a Bill the purpose of which is to deal with Commonwealth immigrants. I do not think there can be any doubt at all that the introduction of this subsection was related primarily to Commonwealth immigrants who come to this country under the conditions of this Bill. Those immigrants are primarily the immigrants who come here on the condition that they work for a particular employer for one year.
The point I put when introducing this Amendment was this. Immigrants are allowed to enter. If they wish to go for a brief holiday to Europe they must obtain a passport. That passport will inevitably have on it the limitation of the period applicable where they are allowed to go. It will not be a universal passport. The passport will be endorsed in that way.
The point I was trying to put when I introduced this Amendment is that if the person overstayed the leave granted in that passport endorsement it would mean that he would not be fulfilling the conditions of his employment and in those circumstances the employer would have 1166 the obligation of reporting his absence to the police. In those circumstances the police would act, as in all cases of illegal residence in any country; the search would be made, and when that person was found the penalties would be imposed. I am grateful to the Minister for saying that if such persons overstayed their leave their right to enter and remain in the United Kingdom would not lapse; but this subsection says that it shall lapse. The Minister has now given me an undertaking that, if in those circumstances, someone overstayed his leave and was dismissed by his employer, the Department of Employment would seek to obtain for him other employment. That is a quite extraordinary statement and it goes very far indeed. I welcome it, but it does not seem to me to be consistent with the subsection that we are discussing.
§ LORD DENHAM
I think the noble Lord, Lord Brockway, is making too much of this. There will obviously be different occasions. It may well be that somebody is given a fortnight's leave and misses a train or a bus, and therefore comes back a day late, or even a week late. There may be other occasions when somebody is given a fortnight's leave and suddenly decides to go to live in a cave in Greece for six months. Obviously the position in each individual case will have to be taken into account, but I can assure the noble Lord that this is not aimed at any particular group of people. This subsection deals both with people who are here for a limited period and with people who are here for an unlimited or indefinite period—whichever is the word we eventually settle on for this Bill. The noble Lord should not assume that this subsection is aimed particularly at one set of people; it is simply a subsection that is necessary to the Bill.
§ LORD DONALDSON OF KINGS-BRIDGE
At first I thought this was an unnecessary clause, but I am now rather inclined to think that it is objectionable. If it means simply that if a man who has a work permit for a year goes away for three weeks, when he comes back his work permit continues, but that, if he goes away for a year and a day, when he comes hack his work permit does not continue, that is quite understandable. But it seems to me now that, apart from the second-class citizenship imposed on him by the right of deportation, and by 1167 the limitations of where he is allowed to work, all of which I think everybody agrees are regrettable, although they have been thought necessary, if we are now to add the fact that he may not exercise the ordinary rights of a citizen while he is on his permit (probably to go to Paris for the week-end) without being examined when he comes back to see whether he has lost any money, that seems to me to be objectionable. I am not at all happy that this is not introducing restrictions on the permit holder which were not seen or suspected anywhere else in the Bill.
§ LORD DENHAM
With great respect, I think that the noble Lord, Lord Donaldson, is unreasonably worried over this. I hesitate, in front of the noble and learned Lord, Lord Gardiner, to suggest that something like this could not happen, but it is certainly not the intention of the Bill that it should happen. The intention of the Bill and of this subsection is that when the conditions under which the original entry permit was granted have drastically changed they can be reconsidered.
§ LORD SHEPHERD
The noble Lord said"It is not the intention ". I accept that, but the point my noble friend has made is; could this happen? This is the real question. If it could happen I think we should see whether we can prevent it. It is not a question of intention.
§ LORD DENHAM
I will certainly look very closely at everything that has been said and will see whether there is anything in the fears that have been expressed and whether, if so, they can be put right.
§ LORD DONALDSON OF KINGS-BRIDGE
That is very fair, and I accept it happily. But the point I want to make is that if every time a permit holder goes away, for a short or a long period, he has to prove the same suitability to be received when he comes back after being out of this country, this is something new and extremely important.
§ LORD BROCKWAY
I am grateful for the promise which has been given by the Minister, and in those circumstances, retaining the right to raise the 1168 matter at Report stage, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.48 p.m.
LORD WADE moved Amendment No. 47:
Page 4, line 39, leave out (" conducive to the public good or ") and insert (" necessary in the interests of national security.").
§ The noble Lord said: In moving Amendment No. 47, I should like to make something in the nature of a personal statement. When my noble friend Lord Foot and I tabled a large number of Amendments, we arranged that as from this point in time in our discussions he would move the Liberal Amendments. Unfortunately, for reasons that he had not anticipated, he is unable to be here to-day, and therefore it falls to me to continue—I was going to say to"bat ", but I suppose it would be more appropriate to say"continue to bowl ". However, leaving the metaphor on one side, I do not guarantee to move every one of the Liberal Amendments. Therefore, if any noble Lord is particularly anxious to speak on one of them I hope that he will send me a little note saying,"For goodness' sake! get up and move it because I want to speak ".
Subsection (5) at present reads:
A person who is not patrial shall be liable to deportation from the United Kingdom "—
then paragraph (b) reads:
if the Secretary of State deems his deportation to be conducive to the public good; ".
The proposal in this Amendment is that the words"conducive to the public good"should be replaced by the words,"necessary in the interests of national security ". I think it is clear that where the interests of national security are involved the Government must have powers to act, though even in that case there must be adequate safeguards for the person or persons involved. But it is right, as a matter of general principle, that the Government should have deportation powers where national security is involved.
§ However, it seems to me that we are going much too wide when we grant to the Executive power to deport in circumstances which are regarded as not conducive to the public good. It may be that the words"conducive to the public good"have been used in some 1169 other Statutes, but I do not think that is a sufficient answer. The point is whether the Executive should have such wide powers; namely, to deport on these rather vague grounds. I notice that Mr. Hugh Fraser, in the debate on the Report stage in another place, said that these words were very wide and he hoped that the matter would be reconsidered in your Lordships' House. I hope that I shall have the support of a number of noble Lords in raising this question this afternoon.
§ For example, I think it may have, probably will have, some bearing on the freedom of political asylum. Some Government might consider that it is not conducive to the public good to allow a person to remain in this country who is politically inconvenient to them. If one compares the climate of opinion with the last century, it is interesting to see how ideas have changed. The concept of freedom of political asylum, however inconvenient, has been upheld on a number of occasions. If I may be allowed a little diversion, I should like to refer to an important debate in the last century, because I think it has some bearing on this subject. In 1858 a Bill known as the Conspiracy to Murder Bill was introduced. It arose out of the well-known Orsini case. Certain refugees who were in this country plotted to overthrow Emperor of France and they did, in fact, make an attempt. They went to Paris, and the attempt failed, although some of them were killed. Emperor Napoleon III's Ministers took rather a dim view of this, which was perhaps understandable, and made representations to the British Government; and following that the Conspiracy to Murder Bill was introduced.
§ There was a very long and very interesting debate on that Bill, and the objections were twofold. First, Members did not like the idea of pressure from another Power, another Head of Government. But, most important, they felt that if anything was done in the nature of this Bill it might indirectly diminish the principle of freedom of political asylum and it might possibly lead to deportation. No one condoned this attempt to murder Napoleon III, and no one to-day would condone acts of that nature, but it is easy to see how strong the feelings were for preserving the 1170 freedom of political asylum—so much so that the Government were defeated, and I think it was the Earl of Derby who formed an Administration after that defeat. It is also worthy of notice that on this occasion—I think it was probably one of the rare occasions—Mr. Gladstone and Mr. Disraeli went into the same Division Lobby together against the Government. I give that illustration to show that there is a great strength of feeling—there has been, and I hope it will be preserved—about the freedom of political asylum and the freedom for refugees and for other immigrants who may be politically inconvenient or who may do or say things that a particular Government may think not conducive to the public good.
§ There is one other point I would make, and I hope this will be elaborated by other noble Lords. If a person has not committed a crime and is not a threat to national security, why should he be deported? Why should any Government be given these wide powers? It is to question that that I beg leave to move this Amendment.
§ LORD BROOKE OF CUMNOR
It is right that this question of public good should be ventilated in your Lordships' House by this Amendment. I wonder whether I may speak for a minute or two from personal experience. These words"conducive to the public good"are not novel; they have been in our legislation in relation to aliens for many years. The change which is being made by this Bill is that a power similar to that which exists in relation to aliens is to be extended to Commonwealth citizens. At present, a Commonwealth citizen can only be deported if he has been recommended for deportation by a court. I would ask your Lordships to cast your minds back for a moment to the case I ventured to mention on Second Reading, the case of an American Nazi named Rockwell, who slipped into this country in 1962. He was a declared admirer of Hitler. His presence, whether or not it was politically inconvenient, was politically detestable, as the Press and a great deal of correspondence made absolutely clear to me. I signed a deportation order to get rid of him after he had joined up with some of these little neo-Fascist bodies which were such a trouble at the time. He went, and I did not receive a single 1171 complaint of my action, but a great deal of appreciation of it.
The point which occurred to me at that time was that I was able to get rid of him with the full support of public opinion because he happened to be American. Had he been Canadian, it would have been impossible to do anything. Yet there is no doubt whatever that public opinion would have been just as strong against this man whatever his nationality, because it was detestable to the British public, at any rate after this short interval of time since the war, to have people coming into this country and declaring what a splendid man Hitler was.
I could quote other examples. I would put to your Lordships that this power in relation to aliens has been a valuable one for the Home Secretary to possess, though he should use it only with the greatest care. In general, when the Home Secretary has exercised his power, he has had strong support from public opinion in doing so, because he would not venture to act without being confident of that. I submit that it is anomalous, when there is somebody of that character whose presence in this country is generally detested, if that man can only be deported should he be an alien. I find it very difficult to understand why there should be a distinction in the law according to whether he comes from America or from Canada or from somewhere else within the Commonwealth.
VISCOUNT ST. DAVIDS
Is it not true to say that this case could not in fact happen with the people with whom we are concerned in this Bill, because they have to be admitted in the first place; and if they were people of the character of Mr. Rockwell, is it not unlikely that they would be admitted, and therefore they would not need to be kicked out?
§ VISCOUNT MASSEREENE AND FERRARD
If you take out the words"conducive to the public good ", does it mean that if you have a drug trafficker or an arch criminal or somebody extremely bad for the public good who is a citizen from the Commonwealth, he can never be deported?
§ LORD DONALDSON OF KINGS-BRIDGE
The noble Lord, Lord Brooke of Cumnor, has put his finger on the issue very clearly. I think we would all of us agree that an Englishman is entitled to live in this country and admire and say that he admires Hitler and, however much we may dislike it, we do not deport him. Equally, I think most of us feel that it is really quite unnecessary to import foreigners, in the literal sense, who hold views which are objectionable to us in this way, and we would most of us support the Home Secretary if he gets rid of them. Where do our fellow British subjects of the United Kingdom and Colonies and subjects of the Commonwealth stand in this matter? This is the point at issue. On the whole, my view is that they should stand with the Englishman rather than the foreigner. I do not think one needs to put forward any argument; I do not think there are any arguments except sentimental ones. That is the issue, and I support the noble Lord, Lord Wade, in bringing it to your Lordships' attention in the form of an Amendment.
§ 6.0 p.m.
§ LORD WINDLESHAM
Clause 3(5)(b) provides that a person who is not patrial shall be liable to deportation if the Secretary of State deems his deportation to be conducive to the public good. These are words, as the noble Lord, Lord Wade, indicated in his opening speech, which are well known. Home Secretaries have had this power for half a century, and the words have a fairly well defined meaning as a result of the occasions when the power has been used. This Amendment seeks to amend the subsection so that it would read,A person who is not patrial shall be liable to deportation from the United Kingdom—(b) if the Secretary of State deems his deportation to be necessary in the interests of national security.This is very much narrower ground than"conducive to the public good ".
The noble Lord, Lord Brooke of Cumnor, has reminded us from his own experience that at present in the law there is power for the Secretary of State to deport foreign nationals on the ground that their presence here is not conducive to the public good; and he referred to the Rockwell case, which was an instance where he decided to use that power in 1173 relation to an alien. There is no such power to deport Commonwealth citizens, but Clause 3(5)(b) would extend to Commonwealth and also Irish citizens the power which has previously applied only to aliens.
I would, in passing, say to the noble Lord, Lord Donaldson of Kingsbridge, that the Bill does single out those Commonwealth citizens who have a close connection with the United Kingdom by birth or ancestry (who are described as"patrial ") going back two generations in the case of a citizen of the United Kingdom and Colonies, or one generation in the case of other Commonwealth citizens. Therefore, this goes some way towards meeting his point of view—not perhaps as far as he would like—in that they would be exempt from deportation, whereas an alien would not. But in the framework of a unified control for people from overseas, the Government think it is right to extend to Commonwealth and Irish citizens the power to deport on conducive grounds.
The noble Lord, Lord Brooke of Cumnor, will remember from his own experience (and it is useful to bear in mind the scale of what we are talking about) that so far as aliens have been concerned in recent years, there have been only about a dozen cases a year in which Home Secretaries have found it necessary to use this particular power. Moreover, for the most part these are cases of convicted criminals, and in not more than three or four cases a year have aliens who have not got a criminal conviction been deported. It may be asked why the courts have not used their power to recommend deportation. This is a power that the courts have, and of course use very widely, but the answer is that in certain cases some courts decide that this is a decision they would prefer to leave to the Home Secretary. Although they have the power themselves there are these cases, and it is significant that out of only about a dozen cases a year about eight or nine have concerned people who have already a conviction in the courts.
I should also make it clear that later on in the Bill, at Clause 15(3), a full right of appeal is provided against a decision to make a deportation order on conducive grounds. There will be an appeal except only in the rare cases where 1174 the order has been made 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 believe that this right of appeal will provide an adequate safeguard against any potential abuse of the power although, as I say to the Committee, this particular power as regards aliens has not attracted very much criticism or representation in recent years.
§ LORD DAVIES OF LEEK
I am very grateful to the noble Lord for giving way. I was looking particularly at Clause 15, and I do not interpret subsection (5) in that way. Perhaps the noble Lord will correct me if I am wrong.
§ LORD DAVIES OF LEEK
But lower down, Clause 15(5) says:A person shall not be entitled to appeal under this section against a refusal to revoke a deportation order, if the Secretary of State certifies that the appellant's exclusion from the United Kingdom is conducive to the public good…".I may be wrong, but I interpret, off the cuff, that the power is still there for the Secretary of State to exclude the person.
§ LORD WINDLESHAM
After a very quick look while the noble Lord was speaking, and subject to correction, subsection (5) deals with the revocation of a deportation order. What I was talking about, which is the case that really matters, is the making of a deportation order, and I think subsection (3) deals with that. When we get to Clause 15 perhaps we can pursue the matter.
One other point I ought to refer to, because it is of considerable significance, is that Clause 7 safeguards the position of Commonwealth citizens who are resident here at the end of July. 1971, since it provides that they are not liable to deportation on conducive grounds however short their period of ordinary residence. These are the people who are already resident here.
1175 Given these safeguards we really have little hesitation in saying that it is right to retain this power in relation to aliens. The Committee must be in no doubt that the noble Lord, Lord Wade, is proposing in his Amendment to remove the existing power as regards aliens and not only to maintain the present position. We are proposing to extend the power to Commonwealth citizens, but the Amendment would take aliens out as well.
§ LORD WINDLESHAM
That is a rapid change of tactic, but I fear that it would not. As I said, the aim of this Bill is to assimilate people from the Commonwealth and from other countries, and this is a consequential provision. Moreover, as the noble Lord, Lord Brooke of Cumnor, said in giving an example of the use of the power, somebody who is really undesirable and whose presence here may be regarded as being against the public interest, may come from a Commonwealth country or an overseas country; he is the same man, with the same record, and of the same activities. My noble friend Lord Massereene and Ferrard raised the sort of case that is in our minds—I have no particular instance to refer to—and he is quite right: this is the sort of power required to deal with the international drug trafficker, let us say, who is clever enough to keep on the right side of the law himself and does not incur a conviction. If he was convicted, of course the courts could then recommend his deportation, as the noble Viscount, Lord St. Davids, correctly indicated. However, the organiser is very often the chap who is quite a clever fellow. The noble Lord, Lord Brooke of Cumnor, will remember the international gambling racketeers, quite frequently with convictions in their own country. It is to deal with people of this sort (whether they come from Commonwealth countries or from overseas), that the Home Secretary should have this power, and there is no reason to think it will not continue to be used 1176 in the extremely sparing way in which it has been in recent years.
§ LORD AIREDALE
In all the cases that we have been considering, certainly in the case cited by the noble Lord, Lord Brooke of Cumnor, the Home Secretary would have had no difficulty at all in deciding that the deportation of the person concerned was necessary. The noble Lord, Lord Brooke of Cumnor, described the person in his example as one whose presence in this country was generally detested. Would it not be a reasonable compromise, now that we are correlating the position of Commonwealth citizens and aliens, to strengthen the phrase by substituting the word"necessary"for the word conducive ", so that any Home Secretary will not assume a power to deport just because he thinks it might be"conducive to the public good but must make up his mind that in the particular case deportation is necessary? This would be in the interest of Commonwealth citizens who are now being brought within the purview of this Bill. If aliens come within the same provision, good luck to them, but it hardly seems good enough for Parliament to permit a Home Secretary to deport a person unless the Home Secretary is satisfied that deportation is not only"conducive"but is"necessary"to the public good.
§ 6.12 p.m.
§ LORD GARDINER
I waited to hear what the noble Lord, Lord Windlesham had to say before I intervened. There is a delicate balance here, but on balance I shall support the Amendment in the name of the noble Lord, Lord Wade. Many of us have for a very long time been unhappy about the phrase,"conducive to the public good ". There are large powers of deportation in this Bill for all sorts of things—breaches of conditions, committing criminal offences and so forth. Of course, anything which affects the security of the State must be treated differently—we accept that—but the phrase"conducive to the public good"is very wide. There is no more distinguished administrator in this House than the noble Lord, Lord Brooke of Cumnor. This is just the sort of point on which an administrator always wants as wide powers as possible, whereas others feel doubtful as to whether, if we have such a wide phrase as this, wrong decisions 1177 may be made because it is a personal judgment of what is"conducive to the public good ".
It must be remembered what a deportation order means. For about twenty years the noble Lord, Lord Boothby, and I tried to do something for an American against whom a deportation order had been made during the War. There was no question of his having committed any offence. He was a man of the highest character, a well-to-do man and in good standing in the United States. He tried to find from successive Home Secretaries what they had against him. Although he occupied higher and higher positions in the United States, he was never able to find what they had against him. This meant that he could not touch down in London when on the way to somewhere else in Europe and could not enter this country at all. Eventually, after we had tried to find out about this from successive Home Secretaries including Labour Home Secretaries, Mr. Jenkins, when he was Home Secretary, revoked the deportation order but the man still never knew why it had been made. I do not know whether he is still alive or is now dead, or what they had against him. He could not conceive what it could possibly be. This is a very wide discretion, and I think the phrase in the Statute with which we are all familiar in relation to aliens, merely that the Home Secretary himself does not think it"conducive to the public good ", is too wide to have here.
THE EARL OF BALFOUR
I have listened carefully to what the noble and learned Lord, Lord Gardiner, said and I understand his point of view that it might he possible for a Home Secretary to take advantage of his position and keep someone whom possibly he might not like out of the country. The case which the noble and learned Lord mentioned is, I think, a very interesting one. But it is the first duty of persons coming to this country to obey the laws of the country. We cannot afford to have people who are not patrial being countenanced, if they would undermine the good order of our society. Even from the Commonwealth we could have the worst possible type of Communist agitator. I do not say that such a man would necessarily come from the Commonwealth or an alien country, but these things can happen. He could 1178 come from any other country, including a former British colony. It is possible for such a person to cause an enormous amount of damage to a person's character, or even property, without necessarily endangering our national security.
Therefore I feel that this Amendment would make the position far too limited. As has been mentioned, a trafficker in drugs could be involved. There was also a case not very long ago when some watches were imported with false names of manufacturers on them and they were sold as genuine good quality watches. I believe the persons concerned are at present locked up and when they come out they will be deported. They were not British citizens, but that sort of thing could happen in the case of British citizens.
There is a very big difference between giving political asylum—a person may be in a desperate position as a refugee from a country having the most terrible form of government—and a person taking part in political activity to undermine our Constitution, or way of life, as we have no written Constitution. The noble Lord, Lord Brooke of Cumnor, mentioned a very important case. If noble Lords are in doubt about this matter, I ask what would have happened if, in the case he mentioned, the person had been a Canadian citizen. What elaborate provisions would the Home Secretary have to go through to deport that person? How could it be done under the Bill if this power were removed? The objectionable character who was mentioned might not necessarily even come within the meaning of this Amendment. The words proposed in the Amendment are,"necessary in the interests of national security ", but there could be a pretty ghastly type of Communist agitator coming in without necessarily affecting national security. I am interested in looking after our own nest and I want to be a little fussy about who comes into the country and I do not care where they come from. I want to preserve the very pleasant society that we have in this country.
I cannot help feeling that with the right of appeal, to which I understand we shall come a little later, the person concerned would be bound to know why he was being deported. In future these cases must be governed by that.
VISCOUNT ST. DAVIDS
The noble Lord. Lord Windlesham mentioned the Rockwell case and so did the noble Lord, Lord Brooke of Cumnor, but one thing he failed to point out. I well remember the Rockwell case. Everyone knew that this objectionable character was going to visit this country and many people hoped that he would be stopped from arriving here. If I remember rightly, he entered the country illegally, and as a result we chased him round for a considerable period before we found him and chucked him out. If he had been a Canadian and entered the country illegally he could surely have been chucked out anyway. Under this Bill the great majority of Commonwealth citizens who enter this country will be entering with our permission. Surely a person of that character would not be allowed to enter in the first place, and if he entered illegally we should have a perfect right under this Bill, and under existing legislation, to throw him out. It will be only in the comparatively rare case of somebody who is in this country illegally, because he had been admitted illegally, that this power will have any purpose. But in this narrow case it is unnecessary.
THE EARL OF BALFOUR
Before the noble Viscount sits down, may I say that we may not know a person's activities before lie comes here. That is what worries me. He could become a very nasty character after he had arrived.
§ BARONESS GAITSKELL
Is the noble Earl aware that the Communist Party and the Fascist Party are legal in this country and that the test of any truly democratic society is the way it contains these extreme elements, not the way they are pushed down and persecuted? It is much better if they are not driven underground, for then they are much more dangerous.
§ 6.22 p.m.
§ LORD WINDLESHAM
It is worth keeping the scale of this problem in mind. I gave the figures. There are only about a dozen people a year who are deported on not conducive grounds, of whom about eight have court convictions We are not talking about large numbers of people with political ideals, or anything of that sort. The intervention made by the noble Earl, Lord Balfour, in reply to the noble 1180 Viscount, Lord St. Davids, that some people appear innocent when they come in, has a certain amount of force in it. Also, unfortunately, it is true, with the strain on the immigration service and the many millions of people passing through the ports, that there have been occasions when people who would never have been admitted if it had been known who they were have found their way in so that they are here in our midst.
VISCOUNT ST. DAVIDS
Will the noble Lord explain? If it was not known who they were when they were admitted, surely they must have entered under false pretences, and their permission to be here would be cancelled anyway.
§ LORD WINDLESHAM
It would depend. There is the case of Mr. Jerry Rubin—the case was published only recently, so there is no harm in repeating it—who came in under his own name and with his own passport. Later on, all sorts of difficulties ensued. Had it been known who he was, I think the immigration officers would have wanted to consider his admission. But he was not admitted as a result of any sort of deception.
The noble Lord, Lord Airedale, asked about the words not conducive ", and asked whether the Home Secretary should assure himself that somebody's extrusion from this country was necessary. The word necessary"is included in"not conducive to the public good ". If the Home Secretary signs a deportation order on this ground, he does so only after long personal consideration. I think the noble Lord, Lord Brooke of Cumnor, who has had this responsibility, would say that he had assured himself to the last degree of doubt that the deportation of any individual was in every respect necessary for the public good. But these words have a specialised meaning. A body of precedent has been built up and it seems desirable to adhere to it.
I was a little surprised to hear the noble and learned Lord, Lord Gardiner, say that he was inclined to support the Amendment on the Marshalled List; because this Amendment would remove the power to deport an alien on grounds which have been used by successive Administrations for 50 years. I should be surprised if in another place—when in Standing Committee the Opposition were 1181 led by the noble and learned Lord's former colleague, Mr. Callaghan, the former Home Secretary—Mr. Callaghan would have felt able to support a proposal to remove this power, having recently used it himself for some years. He spoke for the Labour Party on this Bill in the House of Commons, and was the leading representative of the Party opposite. If the Labour Party in this House decided to go into the Lobby with the Liberals on this Amendment, they might well be at odds with their colleagues elsewhere. But that is entirely for them to decide.
The final point is the extremely useful one made by my noble friend Lord Stonehaven, that the question of the right of appeal is crucial here and is an answer to the noble Lord's reservation that somebody might have a deportation order signed against him on these grounds without ever knowing the reasons. Now he has the right of appeal, the appeal is heard in his presence, and he is entitled to be represented before the Immigration Appeal Tribunal. So that situation, since we have the Tribunal, is really covered. I think I have said enough to show why we feel that this power is necessary. I can assure Members of the Committee that it will be used sparingly in future, as it has been used in the past. But we feel that the Bill is right as it stands.
§ LORD WADE
I do not think the numbers argument is a very strong one. It is the old argument about the baby being a small one, and I do not think it is really decisive. A matter of principle is involved here. First of all, I should like to make it clear—and I think everyone in the Committee appreciates this—that we are not talking about those who commit criminal offences. That aspect is dealt with in another part of the Bill—
§ LORD WINDLESHAM
With all respect, in practice we are talking about people who, in three-quarters of the cases, have committed criminal offences, although the court have not recommended them for deportation. It may have sentenced them, but without adding a recommendation for deportation. About three-quarters of the cases involve people who have been convicted by the courts.
§ LORD WINDLESHAM
I must not keep interrupting the noble Lord, but the Committee ought not to be left in any doubt here. I said in my opening speech that in a number of circumstances the courts say quite clearly that they wish to leave the decision on deportation to the Home Secretary, particularly in this type of case. They often say that, and in their judgment they express no view other than that they think the Home Secretary should decide. They deal with the question of the conviction and the penalty, but leave the question of deportation to the Home Secretary.
§ LORD WADE
There are other clauses dealing with the question of criminal offences and deportation, so I must leave it at that. But there are just two points that I wish to make. One is that there is always the danger that there will be pressure from another Government—that is why I mentioned the case in the last century—for political or other reasons, and it may be thought conducive to the public good to deport somebody for that reason. We need to be pretty careful about that aspect. Secondly, the noble Lord said that those who are settled here will not be affected—
§ LORD WINDLESHAM
Those who are already settled here, and who are ordinarily resident at the end of July, 1971, will not be liable for deportation on this ground in future.
§ LORD WADE
That is the point I wish to make. One of the points that worries us about this Bill is that we already have a number of persons who have come from the Commonwealth and settled here. But we shall be making it extremely difficult for newcomers from the Commonwealth to become settled, because we are going to say to them,"You are different. You are going to be tied to an employer. You are going to have to register. You are even liable to deportation if, for some reason, it is thought it is not conducive to the public good that you should be here." All these different factors make 1183 this great distinction between the newcomers and the present settlers. That reinforces my view. It may be that this Amendment would lead to other Amendments in the law with regard to aliens, but I think we have here a point of principle. It is because of this Bill that this matter has been brought to our attention, and for that reason I should like to press this Amendment.
§ LORD DAVIES OF LEEK
I am glad that this matter has been brought to light. I am still not satisfied, and I should be glad if some noble and learned Member of this Committee could interpret for me. I agree that Clause 15 states:Subject to the provisions of this Part of this Act, a person may appeal to an adjudicator a against—I now go to subsection (5), at the bottom of page 16, which says:
- (a) a decision of the Secretary of State to make a deportation order against him by virtue of section 3(5) above; or
- (b) a refusal by the Secretary of State to revoke a deportation order made against him ".A person shall not be entitled to appeal under this section against a refusal to revoke a deportation order, if the Secretary of State certifies that the appellant's exclusion from
§ the United Kingdom is conducive to the public good or if revocation was refused on that ground by the Secretary of State (and not by a person acting under his authority) ".
§ I apologise to the Committee if I am entangled in legal language, but semantically and logically an appeal means nothing so far as I am concerned. I had better be a little more humble here. I may be wrong in my reading of this, but I hope somebody will put me straight on it.
§ LORD WINDLESHAM
I do not think I should detain the Committee. The noble Lord, Lord Wade, has wound up, and I think we want to reach a decision. I think that if the noble Lord reads the words again he will see that Clause 15(5) deals with the revocation of a deportation order—where once somebody is out of the country and he wants to come back but cannot because there is a deportation order, and he wants it revoked. There is no appeal on conducive grounds there, but that is not what we are talking about.
§ 6.31 p.m.
§ On Question, Whether the said Amendment (No. 47) shall be agreed to?
§ Their Lordships divided: Contents, 61; Not-Contents, 109.1185
|Airedale, L.||Gardiner, L.||Ritchie-Calder, L.|
|Archibald, L.||Garnsworthy, L.||Royle, L.|
|Ardwick, L.||George-Brown, L.||St. Davids, V.|
|Bacon, Bs.||Gladwyn, L.||Segal, L.|
|Barrington, V.||Greenwood of Rossendale, L.||Shackleton, L.|
|Beaumont of Whitley, L.||Henley, L. [Teller.]||Shepherd, L.|
|Bernstein, L.||Hoy, L.||Slater, L.|
|Beswick, L.||Jacques, L.||Sorensen, L.|
|Birk, Bs.||Janner, L.||Southwark, L.Bp.|
|Blyton, L.||Leatherland, L.||Stocks, Bs.|
|Brockway, L.||Lindgren, L.||Stonham, L.|
|Brown, L.||Llewelyn-Davies of Hastoe, Bs.||Strabolgi, L.|
|Buckinghamshire, E.||Lloyd of Hampstead, L.||Summerskill, Bs.|
|Burntwood, L.||Noel-Buxton, L.||Tanlaw, L.|
|Byers, L.||Norwich, V.||Taylor of Mansfield, L.|
|Champion, L.||Nunburnholme, L.||Wade, L. [Teller.]|
|Collison, L.||Phillips, Bs.||White, Bs.|
|Davies of Leek, L.||Platt, L.||Williamson, L.|
|Diamond, L.||Popplewell, L.||Winterbottom, L.|
|Donaldson of Kingsbridge, L.||Raglan, L.||Wootton of Abinger, Bs.|
|Aberdare, L.||Balfour of Inchrye, L.||Brooke of Cumnor, L.|
|Abinger, L.||Belhaven and Stenton, L.||Brooke of Ystradfellte, Bs.|
|Airlie, E.||Belstead, L.||Brougham and Vaux, L.|
|Albemarle, E.||Berkeley, Bs.||Buchan, E.|
|Alport, L.||Bessborough, E.||Clwyd, L.|
|Ashbourne, L.||Bourne, L.||Coleraine, L.|
|Auckland, L.||Bradford, E.||Colville of Culross, V.|
|Balfour, E.||Bridgeman, V.||Conesford, L.|
|Cork and Orrery, E.||Hanworth, V.||Oakshott, L.|
|Cornwallis, L.||Harris, L.||Orr-Ewing, L.|
|Craigavon, V.||Hawke, L.||Perth, E.|
|Crathorne, L.||Headfort, M.||Radnor, E.|
|Crawshaw, L.||Inchcape, E.||Rankeillour, L.|
|Cullen of Ashbourne, L.||Jellicoe, E. (L. Privy Seal.)||Rochdale, V.|
|Daventry, V.||Kilmarnock, L.||St. Aldwyn, E.|
|Denham, L. [Teller.]||Kinnoull, E.||St. Just, L.|
|Derwent, L.||Latymer, L.||St. Oswald, L.|
|Digby, L.||Lauderdale, E.||Sandford, L.|
|Drumalbyn, L.||Lothian, M.||Sempill, Ly.|
|Dulverton, L.||Loudoun, C.||Somers, L.|
|Dundee, E.||Lucas of Chilworth, L.||Stamp, L.|
|Effingham, E.||MacAndrew, L.||Stonehaven, V.|
|Elliot of Harwood, Bs.||McFadzean, L.||Strang, L.|
|Exeter, M.||Macleod of Borve, Bs.||Strange, L.|
|Falkland, V.||Mancroft, L.||Strange of Knokin, Bs.|
|Ferrers, E.||Massereene and Ferrard, V.||Strathcarron, L.|
|Ferrier, L.||Merrivale, L.||Strathclyde, L.|
|Fraser of Lonsdale, L.||Milverton, L.||Teviot, L.|
|Garner, L.||Monck, V.||Tweedsmuir of Belhelvie, Bs.|
|Glendevon, L.||Monckton of Brenchley, V.||Vivian, L.|
|Goschen, V. [Teller.]||Monk Bretton, L.||Wakefield of Kendal, L.|
|Gowrie, E.||Monson, L.||Waldegrave, E.|
|Gray, L.||Mountevans, L.||Ward of Witley, V.|
|Grenfell, L.||Mowbray and Stourton, L.||Windlesham, L.|
|Grimston of Westbury, L.||Moyne, L.||Wolverton, L.|
|Hacking, L.||Napier and Ettrick, L.|
|Hailsham of Saint Marylebone, L. (L. Chancellor.)||Northchurch, Bs.|
On Question, Motion agreed to.
§ 6.39 p.m.
BARONESS WHITE moved Amendment No. 48:
Page 4, line 40, leave out paragraph (c).
The noble Baroness said: I beg to move the Amendment standing in the names of my noble friends and myself. This is a very important Amendment to a good many of us, because its effect would be to delete from this part of the Bill the provision,
if another person to whose family he belongs is or has been ordered to be deported ".
This means that anyone who is not patrial will be liable to deportation if he or she belongs to a family another member of which has been ordered to be deported. I would direct your Lordships' attention to what is included in the definition of a family in this context. If one looks at Clause 5(4) of the Bill on page 7, one sees:
For purposes of deportation the following shall be those who are regarded as belonging to another person's family—
but not, your Lordships will observe, her husband.
§ In the first place, if it were a man, the children concerned could be either their children or the children of the wife. We are very much disturbed about bringing this provision into legislation, because it means that if one person in a family is guilty of such a misdemeanour as to become liable to a deportation order then, according to this provision, any other person of the family, as defined in the succeeding clause, is thereby liable to deportation. This is entirely at the discretion of the Secretary of State—although at some later stage the noble Lord, Lord Windlesham, will be moving an Amendment which will provide for some grounds of appeal, though I am not at all clear what the grounds of appeal in this case are to be. It will assist us if the noble Lord could indicate what grounds of appeal are envisaged. It is certainly not clear from the Amendment, except where the original deportation order was improper or invalid, or the person concerned did not belong to the family.
§ One can think of all kinds of complications which might arise. Your Lordships will see that this clause refers only to the non-patrials. Let us consider the possible family circumstances which might occur. Supposing it is a man against whom the deportation order is made. His wife may well be a patrial; she might have qualified independently, 1187 she might have qualified by birth or on registration after five years. There are various circumstances in which a wife might be a patrial where the husband is not. This is one of the awkwardnesses of this patriality conception.
§ Consider the children. The couple might have entered this country as immigrants with one or more children, and after arrival another child or more children might be born. The child who is born here would be patrial if the parents were Commonwealth citizens in the first place, and would therefore not be liable to deportation under this clause. A child who had been here for five years, if I am correct, might have qualified; I am open to correction. If other conditions are satisfied, that child also might be patrial. One might have a child who had not been here long enough to be a patrial; in other words, there might easily be within the same family a number of individuals whose status under this clause would be different. Against some of them the Home Secretary would be entitled to make an order for deportation on the grounds that they belonged to the family of someone else against whom an order had been granted; but against all of them he would not be in that position. This seems to us to be a fairly ludicrous situation. I would ask the Committee to consider this.
§ Then one must look at the difficulty of who should be included in the family: children up to the age of 18. Nothing is said about the possibility that the children could be in paid employment by that time. They might be. They might not be dependent in any way upon the person against whom the deportation order is made. They might, even, by the age of 17¾, not be living at home. They would still be members of the family within this definition, but they might not be connected with the family in the absolute sense that they were dependent and living in the same house.
§ Take the position of the wife. If the husband was being deported for a criminal offence it is conceivable that she had had a pretty rough time with him and would be happy not to see him again. But under this provision it may be that she will be forced to leave the country, in which she might have settled contentedly herself except for the 1188 difficulties with her husband. She will be told,"Your husband was very unsatisfactory, unless you divorce him and can prove you are not a member of his family, then if he gets himself in trouble and is sent out of the country you may have to go too, and you will have to take with you any of your children up to the age of 18 ". On the other hand, if it is the woman who is to be deported—and these cases are rare, it is mostly men who are deported—perhaps she has been living an immoral life, or is in breach of some provision made in her own case as an immigrant, the husband does not have to accompany her. He can stay behind and carry on as he thinks fit. The fact that she might then be left destitute, so long as she is outside our shores, does not seem to matter. From the point of view of family life I should have thought that this was a very undesirable and slightly irresponsible situation.
§ I believe that the basis of all this is the thought in the minds of the Government that we do not wish to have families without the breadwinner living in this country as a possible charge on public funds. One can see that there could be instances in which one felt that it was against public policy that people should be here as a charge on public funds when the breadwinner is deported; but, as the Home Secretary said in another place, these cases are likely to be very rare, there are not likely to be many deportation orders, and the number of persons who might be left here as a possible charge on public funds is, in any case, going to be very small.
§ But that difficulty, providing the family is willing, can be met under Clause 29, the repatriation clause. If a family wish to depart from this country, and they are not in a position to meet their expenses, they can apply under Clause 29 for help in returning to their country of origin. You may have a situation in which the breadwinner is liable to deportation and the wife and perhaps the children as a family say,"There is not much point in our trying to struggle on here if father, on whom we depend, is going to be sent away. Would it not be far better for us to go?"In those circumstances it would be in all our minds that they should go; and, if they have to be assisted, then they should be assisted; and provision is made 1189 for that in the Bill. That would be perfectly in order; nobody would take exception to that. But it is a very different thing that we should leave it to the Government to decide what is to happen to a family in such unfortunate circumstances. The family should not have a decision to take as to whether or not they should go out of the country as well.
§ The Home Secretary made it very clear in debates in another place that he appreciated that it would be very unfair to imply that, because one person in a family had been guilty of a misdemeanour serious enough to involve deportation, other members of the family should, as it were, be tarred with the brush of guilt by association. I should have thought that that would have been repugnant to everybody in your Lordships' House. After all, there may be black sheep in every family but it does not necessarily mean that everybody else in that family should be regarded as morally guilty in some way, if not legally so. In my view, that is a very serious thing. The Home Secretary said that in those circumstances there would be supervised departure: in other words, he did not want the family to have the stigma of a deportation order against them and he would give them a chance to decide"voluntarily"that they wished to go back to their place of origin; and provided he was satisfied that they had actually left, or were about to do so, he would not make an order against them. They would have gone voluntarily and would have no stain against their character, but if they did not go there would always be the sanction that he would then deport them.
§ Therefore it is not really a free choice, because it is made quite clear that in these circumstances, if the administration of the Home Office think that the family should go—largely because they are apprehensive that the people concerned might become a charge on public funds; I do not think there is any other real reason—then they say they will see to it that the family will not have the particular stigma; the family may say that it is going voluntarily, but the Home Office are determined to make certain that the family does go. That is the meaning of"supervised departure ". Assisted departure is quite another matter, and to that I do not think any of us can have 1190 the slightest objection. As I understand it, it is possible to provide that under Clause 29. It is only sensible; and if the family decided that it wanted to go it should have help. But that is a very different thing from saying that it must go, whether it wishes to or not; that even though the members of the family have had no part in the guilty action, nevertheless they must be constrained to leave this country, regardless of the circumstances.
§ Under the appeal provision it does not seem to me at all clear that any appeal could lie simply on the ground that it was not the desire of the family to go. If they said it did not suit them to go for certain reasons—for example, because the children had started their education; they might have reached a critical stage in their education, including matters such as apprenticeships and so on—they might still be economically dependent on the breadwinner. But after all, arrangements can be made. Very often the family are able to make some arrangement with a relative or a neighbour for an older chill with an apprenticeship. The wife herself' may say that she does not wish to leave with her husband; she is able to earn her own living if necessary. Many of these women who came over here were nurses or assistants in hospitals. The wife night say that when she was bringing up children she did not earn her own living, but in the circumstances she would rather stay and see her children have a really good chance in life with a future, so that they would be able to continue their education, and somehow or other they would manage. Is a woman to be deprived of the right of saying that she wishes to do the best for her children in the circumstances? Is it a matter to be decided by the Home Secretary or one of his officials? Surely, this is a matter which the family should work out for themselves.
§ There is another inconsistency. I draw your Lordships' attention to the fact that the definition of"family"for this purpose in Clause 5(4) does not include dependent parents or other relations. As we know, it is possible under the rules for someone who is in this country to ask leave to bring over dependent parents. I do not think anyone could do it as of right, unless he had been here for five years—I am not quite certain on that 1191 point; but I know that permission can be given in certain circumstances. A man might have come over here, married someone and her parents might be dependants. They are not included in the term"family ". But if it is economic consequences that we are thinking of, and a question of a possible charge upon public funds, I should have thought that dependant parents—by definition elderly people—would be much more likely to become a charge on public funds if the person who had been supporting them were deported but they were left out. There is an inconsistency and an illogicality about that. It is not only a matter of saying that we cannot risk having any charge on public funds if a person is deported because his family were dependent on him. It does not cover dependants as such. Persons other than the wife or children up to the age of 18 could be dependants.
§ It seems to me that this whole provision is riddled with illogicality. That is the difficulty in the first place, but to our minds the much more serious difficulty is the fact that in a situation where someone is guilty of some offence rendering him liable to a deportation order, the rest of the family should be involved. Surely this is not in our concept of family life. I appreciate that the Home Secretary has done his best to meet the charge of spreading guilt by association, which I think is a most repugnant thing. He says that he has found a way round that; but it is, in effect, guilt by association if it is said that a family must leave because someone else in the family, on whom the others not even necessarily dependent, has been told to leave. I sincerely hope that again this is something the Government will reconsider. I do not want to use emotive words, but all of us can think of circumstances some 30 years ago when family guilt by association and family connections had a very unpleasant meaning. Certainly I hope that we do not want to bring that concept into our public life in this country. I beg to move.
§ LORD WINDLESHAM
I beg to move that the House do now resume to enable discussion of the Housing Bill and Licensing (Abolition of State Management) Bill.
§ House resumed.