§ 4.53 p.m.
THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESIIAM)
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—(Lord Witidleshain.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF SHANNON in the Chair.]
§ Clause 6 [Recommendations by court for deportation]:
LORD BROCKWAY moved Amendment No. 68A:
Page 7, line 44, leave out (" seven ") and insert (" twenty-eight ").
§ The noble Lord said: Owing to a misunderstanding regarding which Amendment was before the Committee when we last met I have already delivered my speech on this Amendment, much to the bewilderment of the Minister in charge and the noble and learned Lord, Lord Gardiner. That spech appears in the OFFICIAL REPORT and therefore I do not think it necessary to repeat it now.
§ All I wish to say is that the object of this Amendment is to change to 28 days the seven days which are allowed to potential deportees on their appeal, and I am suggesting to the Committee that seven days is an unfair limitation. They are often in custody, there are difficulties in regard to legal discussion and difficulties in connection with solicitors reaching them, it may be by long journeys. I am encouraged by the fact that it is normal for the court of quarter sessions or assizes to grant 28 days for an appeal, and I hope that the Minister will respond to this Amendment. I beg to move.
§ LORD WINDLESHAM
The result of the noble Lord's error last week is that I have been able not only to listen to his words but to read them as well, so I come even better prepared than would normally be the case.
659 The effect of the Amendment would be, as the noble Lord, Lord Brockway, has pointed out, that 28 days' notice would have to be given instead of seven before a recommendation could be made for deportation. The provision in the Bill is modelled on the Commonwealth Immigrants Act 1962, Section 8(1) of which provides that no recommendation for the deportation of a Commonwealth or Irish citizen is to be made unless he has been given seven days' notice of the relevant statutory provision about eligibility for deportation. There is no corresponding provision in the existing law with regard to aliens, and the Bill seeks to extend the existing law to citizens by giving them the same period of notice as Commonwealth citizens previously had.
The existing provision of the 1962 Act has worked satisfactorily so far as the Home Office is aware. Generally, courts do not serve the notice of eligibility for deportation until conviction, and thereafter the convicted person remains in custody until the court decides whether to recommend deportation. At the present time the period spent in custody is seven days, but if the Amendment were accepted it would be 28 days. This would mean in practice that most people would, after conviction, be kept in detention unnecessarily for up to an extra 21 days. We have had time to look at the implications of this Amendment and we believe that, despite the good intentions of the noble Lord, in practice the Amendment would not operate to the advantage of those whom it is intended to help.
The noble Lord, Lord Brockway, maintained that seven days might be too short a period for a person to decide whether he would contest the allegation that he is eligible for deportation, but I would point out to the noble Lord that it is open to any person who is in that position to apply for a further adjournment if he finds it necessary, and I am advised that it would be most unlikely that the court would refuse any reasonable request of this nature. I understand the motives of the noble Lord in moving this Amendment, but I think the implications in practice point towards leaving the period where it is at seven days rather than at 28 days.
§ LORD SHEPHERD
I do not think the noble Lord, Lord Windlesham, even 660 now appreciates that this Bill brings in quite a different category of person than does the 1962 Act. I can recognise the difficulties of my noble friend's Amendment in the case of a person remaining in custody for this extra period of 21 days. I wonder whether the noble Lord, Lord Windlesham, would consider the fact that we may find a fairly large number of Commonwealth citizens who have come to this country and have remained here for many years, and for reasons which perhaps we may dispute but they may feel are sufficiently strong, they have not taken out registration. In other words, it may well be that a Commonwealth immigrant could be in this country for some 10, 15 or even 20 years and suddenly he commits an offence and subsequently finds himself liable for deportation. I can see that if time was given he might be able to provide grounds which would mean that the deportation order would not be made against him. I see in a later Amendment to this clause the noble Lord is extending the period. If the noble Lord opposite cannot go to 28 days, I wonder whether he would consider 14 days? I think this would remove some of the difficulties and would perhaps meet the case put forward by my noble friend.
§ 5.0 p.m.
§ LORD STONHAM
I should be glad if the noble Lord would look at the Amendment again, or at my noble friend Lord Shepherd's suggestion for a shorter period. As the noble Lord is aware, and certainly from my experience I am aware, most people subject to deportation orders are in custody, and although it is a relevant and important point that if the Amendment were accepted they would be in custody for an additional 21 days, I think the important thing is that they are unlikely to know of, or be in a position to exercise, all their rights. Seven days is a very short time, in fact only time to write one letter from the prison and get a reply. I know that the clause provides that certain information shall be given to them, but I think they should have more than seven days. Although the noble Lord gave a very careful reply, he really did not deal with this one issue. If they are going to be deported they are not going to be released from prison, so they are not going to get away with it.
661 I also have it in mind that many of these cases will concern the whole family. Not only is it the man against whom the deportation order is made, but all the members of his family. I think this is far too serious a question to be dismissed lightly. We should be quite sure that any Commonwealth citizen who is considered to have transgressed in such a way that he is liable to deportation should at least have 28 days in which to prepare his appeal. I hope the noble Lord will think again.
May I add one further word? There was a time when notice of appeal in respect of any criminal matter in which a conviction had taken place was as short as seven days. The policy in these matters has been to extend the time, and it has been extended so as to enable a person to take proper legal advice and to consider the position in all its aspects. I wonder whether, in circumstances where not only the person against whom the order is made but the whole family is involved, on second thoughts the period of seven days will not be considered to be unreasonable? I should say 21 days at least, so as to give the man a proper chance of taking such advice as he needs and also considering the position.
§ LORD WINDLESHAM
I appreciate what has been said. I have looked into this question, and I am confident that nobody in the position that noble Lords are concerned about will be left without sufficient time to obtain proper advice. We must remember, first of all, that a convicted person will not be starting from scratch as regards obtaining legal advice. He will have just been through a trial, or at any rate the submission of a plea of guilty if that is the case, and almost invariably he will have been legally represented. His solicitor or counsel will have been present at the time of his conviction and will be able to get in touch with him straight away. I should like to re-emphasise the point—it is a considered one—that I am advised that no court would refuse a request for a further adjournment to give a convicted person more time if the allegation that he was eligible for deportation raised any question of difficulty at all.
I must say this to the noble Lord, Lord Shepherd, on the point he raised, as to 662 whether I appreciated the category of person we were dealing with. The sort of person he referred to as being resident here—he mentioned 10 years or 20 years—will be exempt from deportation. He will not be subject to deportation proceedings if he has been ordinarily resident here for five years by July of this year. That is in Clause 7 of the Bill.
§ BARONESS WHITE
The noble Lord surely appreciates that we are legislating for the future, not only for those already here. Somebody who has been here at the moment for only three years might very easily be liable.
§ LORD WINDLESHAM
No, he would not be. The person who has been here three years, as noble Lords will find when we come to the relevant provision will become exempt when his further two years are up. Anyone here before the end of July becomes exempt when the period of five years is completed. I do not think there is a great deal between the two sides of the Committee on this matter. I really do feel that the people who need legal representation will be able to obtain it; and the court will make sure that they are able to do so by granting an additional adjournment if they think it is needed. The fact that there will invariably be a solicitor acting in the case is also relevant.
We must carefully take into account the fact that the individual, if the Amendment were accepted, would be likely to spend a longer time remanded in custody than otherwise. The noble Lord, Lord Stonham has practical experience, as I have, of this. I have known of cases—not very frequently, but there have been examples—where after protracted representations the individual himself asks to leave; he says,"For goodness sake, please let me go. I have been held in detention long enough while representations are considered ". We need to safeguard the interests of the individual concerned.
§ LORD SHEPHERD
I only wish to intervene a second time for this reason. First of all, we are legislating for the future. The noble Lord himself said we regard this Bill as permanent legislation. It may be, as the noble Lord said, that a person who is in custody may say,"I have had enough. Please let me go: I 663 will go willingly ". But if this person is deported it affects the family; the wife and children will be deported as a direct consequence of his own deportation. So there is quite a serious matter here.
§ LORD STONHAM
I wonder whether the noble Lord can help me over a particular case? He mentioned that if a citizen had been here five years the Act would not bite. I received a letter only this afternoon from an Irishman in Dartmoor Prison. It started off by saying:I am serving a five year sentence and am liable to be deported at the end of it ".What advice can one give? The prison sentence will not count towards his five year residence; at least, that is what I assume. My experience is that people in this situation usually have quite a bit of time to serve in prison before the recommendation made by the court in sentencing them has to be considered. So the argument"Please let me go"does not have much effect in cases of that kind. That is a typical case, one of the kind that has prompted me to take part in this discussion. What do we do with chaps like that?
§ LORD WINDLESHAM
It is very difficult to give immediate advice on an individual case across the Floor of the House, and I would not wish to do so. I should like to study what the noble Lord has said. The question of the amount of time the person is likely to spend in custody is a critical one. We have considered this point, and really do not think that the Amendment would operate to the advantage of those who are recommended for deportation.
§ LORD BROCKWAY
I agree with the Minister that there are cases where persons in detention are actually asking that their period of detention shall end earlier, because of their desire to get out of that situation. I am aware of that. There are just two points I should like to make. The first concerns the important point raised by the noble Lord, Lord Shepherd. This will arise on Clause 7. If I may have the attention of the noble Lord, Lord Shepherd, I have Amendments to Clause 7 which will be dealing with the point that he has raised on this clause. Secondly, I very much hope that the Minister, having listened to the influential 664 advice which has been given during this debate, may look at the matter again before we reach the Report stage; and I will consult with other more experienced persons than myself before the Report stage. Immediately, I would ask permission to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.12 p.m.
LORD BROCKWAY moved Amendment No. 68B:
Page 8, line 17, after (" deportation ") insert (" provided that no court shall make any such determination in the absence of evidence given by a qualified medical practitioner ").
§ The noble Lord said: I beg leave to move Amendment No. 68B. The purpose of this Amendment is that when there are questions about the age of a person who wishes to enter this country and who may be subject to deportation, the evidence of a qualified medical practitioner should be taken. At the present time decisions are often reached without any such consultation. Even in the higher courts decisions are reached without direct medical evidence. These persons often have no evidence of their age in the way of registration; no registration in the territories from which they come has been made. Often they are not honest in the replies which they make to many questions, and their credibility is doubted. In my experience, when credibility has been doubted on other answers that doubt has very often extended to their declaration of age. I strongly suggest that before decisions upon age are reached, some medical evidence should be required. That is the whole point of the Amendment, and I hope the Minister will be able to accept it. I beg to move.
§ LORD WINDLESHAM
The existing law about the deportation of Commonwealth citizens on conviction of an offence provides, in Section 7(1) of the Commonwealth Immigrants Act 1962. that the age of 17 is to be the minimum age for deportation. I should point out that the Home Office has no record of any case in which the determination of the age of the offender has caused the court difficulty, or in which it has been subsequently alleged that a person under 17 has been deported. Moreover, while medical evidence as to age is a reasonably accurate indication in relation to young people, it is not sufficiently 665 accurate to determine age with the precision, in terms of days or weeks, that would be needed in this context. A court would not be able to act on medical evidence with any assurance, and it is likely that any doubtful case would be settled by such evidence as a birth certificate, or evidence of relatives as to date of birth. In fact, careful enquiries are invariably made to establish a person's age before serving notice of eligibility for deportation. I might add, for the information of the Committee, that deportation of anyone under the age of 18 is exceedingly rare. I can also confirm that the Secretary of State is at all limes prepared to consider representations after a court has made a recommendation and before a deportation order is made, and that he would certainly wish to examine any suggestion that the offender was below the minimum age.
§ LORD BROCKWAY
I have listened to the Minister. I will not pretend that I am satisfied, but I appreciate the position, and ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.17 p.m.
LORD FOOT moved Amendment No. 69:
Page 8, line 18, leave out paragraph (b).
The noble Lord said: I beg leave to move Amendment No. 69. Clause 6(3), which we are seeking to delete. It says: cerned with the interpretation of Clause 3(6). Perhaps at this stage I might apologise to the Minister, and indeed to the Committee, for the fact that I was not able to be present on the last occasion when that clause was being discussed, because I should have liked to say something about it. May I remind the Committee of what Clause 3(6) says:
Without prejudice to the operation of subsection (5) above, a person who is not patrial shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.
Then we come to this subsection (3)(b), which we are seeking to amend, is con
For the purposes of section 3(6) above—
(b) the question whether an offence is one for which a person is punishable with imprisonment shall be determined without regard to any enactment restricting the imprisonment of young offenders or first offenders;
§ The question I want to ask is whether that is really right. If the law says that in certain cases, because of the youth of the offender or because it is a first offender, the court should be precluded from being able to impose a penalty of imprisonment upon that person, is it right that you should leave with the court the power of recommending that that person should be deported?
§ There must be cases, indeed there must be many cases, where the penalty of deportation is a much more severe penalty than any imprisonment that the court might be able, in the ordinary way, to impose. It seems to me to be odd and anomalous that you should say to the court,"No, you cannot send this person to prison because he is too young"or,"because it is a first offence ", but that the court should nevertheless be able to say that they recommend this person for deportation.
§ I am concerned about the whole question of whether it is right for courts, and especially perhaps for magistrates' courts, to have the power to recommend deportation at all. It does not seem to me that a court of law is well contrived or well equipped to decide questions of deportation. After all, a court is concerned with two things. Firstly, whether it is proved that a particular person has committed a certain offence. Secondly, if it records a conviction, the court has to decide what penalty is appropriate. But the courts—and, I suggest, particularly the magistrates' courts—have very little opportunity of going into all the matters involved when the question of deportation is being considered. They are very ill-equipped and there is a danger—I should have thought a grave danger, because no direction is given as to the sort of principles to be followed—of a considerable variation of practice between one court and another.
§ I realise that these are general objections to courts having the power to recommend deportation. But if we are going to leave courts the power to recommend deportation, would it not be sensible to circumscribe that power and say: you can recommend deportation if 667 you think fit, but not in a case where you have no power to send the person to prison? It seems to me that this would be a sensible and logical way of avoiding some of the injustices which may occur while a court has this power. I recognise at once that the Home Office is not obliged to act upon the recommendation of a court. But I suggest that if the court—possibly wrongly—does recommend deportation, it will be more difficult for the Home Office to overrule or disregard the recommendation, than in a case where a court makes no recommendation at all. I have no doubt that the Home Secretary is always reluctant to disregard a recommendation by a court, and this would, to some extent at any rate, relieve him of that embarrassment.
§ Finally, nobody need worry if the power to recommend deportation in cases of this kind is taken away from the courts. There is always the residual power in the Home Secretary, whether a person is recommended for deportation by a court or not, under Clause 3(5)(b)—that is, not conducive to the public good. There is always the residual power in the Home Secretary to say,"Even though the court has made no recommendation I, in my wisdom, am going to make a deportation order ". Therefore nothing is lost by way of control. But what is gained by this Amendment is that we bring the law into a state of common sense and logicality; we simply take away from the courts the power to recommend deportation in this limited class of case. I beg to move.
§ LORD GARDINER
I support the Amendment which the noble Lord, Lord Foot, has moved. The cases with which we are dealing are cases which, either because it is a first offence or because of the age of the offender, are not punishable with imprisonment. In principle, it seems to be loading the dice too much against immigrants to insert this special provision, the effect of which is to allow an offence not punishable with imprisonment to be treated as if it were. That requires a great deal of justification. For this reason and the others which the noble Lord, Lord Foot, has given, I hope the Government will regard the Amendment favourably.
§ 5.25 p.m.
§ LORD ABERDARE
I shall certainly try to put the case for the Bill as it stands, despite the fact that I am no lawyer and the noble and learned Lord, Lord Gardiner, has supported the Amendment of the noble Lord, Lord Foot. The effect of paragraph (b) as the noble Lord, Lord Foot, correctly described it, is that a court is allowed to recommend deportation in the case of first offenders and young offenders, despite the fact that under other legislation it cannot impose a sentence of imprisonment on them except in special circumstances. I agree that, at first sight, it seems rather odd; indeed, the noble and learned Lord made reference to this matter last Thursday. But this is very far from the purpose of the clause, as I shall seek to show. The purpose is to give greater latitude to the courts, and to allow them to recommend deportation without having to impose an inappropriate penalty.
If I may deal with first offenders: the First Offenders Act 1958 provides that a first offender shall not be sentenced to imprisonment by a magistrates' court unless the court is of the opinion that no other method of dealing with him is appropriate. This might preclude the court from recommending deportation. Yet, particularly in the case of a person who has committed an offence against immigration control—for example, art illegal immigrant or a person who has overstayed his authorised leave—it surely would be right that the court should recommend deportation, without necessarily imposing a penalty. It would, I suggest, be ludicrous if illegal immigrants had to be fined or, in certain circumstances, imprisoned for a first offence, rather than that the court should be able to recommend that they should be sent back to their country of origin. That would be the effect if we removed paragraph (b). The court would no longer have the latitude to deal with the case of a first offender who was an illegal immigrant, and would not be able to recommend his deportation.
In the case of all young offenders, the same sort of practical considerations apply. Section 17 of the Criminal Justice Act 1948 provides that no court shall impose imprisonment on a person under 21, unless it is of the opinion that no 669 other method of dealing with him is appropriate. Clause 3(6) of this Bill precludes a court from recommending the deportation of any offender who at the time of conviction is under the age of 17. So what we are dealing with here is the liability to deportation of those aged 17 to 21.
The effect of removing paragraph (b) would be that, broadly speaking, a court would be unable to recommend an offender under the age of 21 for deportation, unless satisfied that the only appropriate means of dealing with him was to pass a sentence of imprisonment. A recommendation could be made only in conjunction with such a sentence. It would preclude the court from making a recommendation in a case where imprisonment was not called for, but where deportation was the best course in the public interest, or in the offender's own interest, or in both.
In deciding whether to recommend the deportation of an offender aged 17 or over, a court will naturally take very full account of his age as well as his other circumstances, and will make such a recommendation only when it feels that it is in the best interests of the person concerned. In cases of evasion of immigration control, or possibly in cases where a person aged between 17 and 21—perhaps a visitor—has committed certain minor offences, it may well be in his best interests that he should be absolutely or conditionally discharged and a recommendation made for deportation.
The point was also made by my noble friend Lord Windlesham on the last Amendment that, in the final event, the Secretary of State will give the very closest consideration to a recommedation before confirming it. But I know that my right honourable friend feels that it helps him in his final decision to have a recommendation from the court. This is the reason for this paragraph (b). It is to give sufficient latitude to the court to be able to recommend deportation, without the necessity of imposing a penalty which in the particular circumstances might not be suitable. In conclusion, perhaps I may point out that these provisions are exactly the same in their effect as those in the Commonwealth Immigrants Act 1962. There is nothing 670 new in them, and they do give the courts the flexibility they need when dealing with the practical problems that arise.
§ LORD DONALDSON OF KINGS-BRIDGE
I am filled with confusion here, though I am quite ready to be put right, and to be put right quickly. Under Clause 3(5) a person who is not patrial is liable to deportation for three different reasons, which are laid down. It is not necessary so far as I know that he shall have been sentenced before the Home Secretary is able to exercise this right. What we are talking about is not these three basic reasons but the case where a man has settled here all right and then commits offences and gets into trouble with the law. Therefore, to say"if he was an illegal entrant ", as the noble Lord did, seems to me to have absolutely nothing to do with it at all. It may well be that I have misunderstood, but I should like to be put right.
§ LORD ABERDARE
This applies to any person who is not patrial. It may be a visitor to this country who misbehaves. I mentioned minor offences. It may be, say, shoplifting. If such a person is brought before a court for an offence which is punishable by imprisonment, the court may then recommend his deportation. What this clause says is that although under other Acts he may not he sentenced to imprisonment except in special circumstances, he can still be recommended for deportation.
§ LORD DONALDSON OF KINGS-BRIDGE
What confused me was that the noble Lord said that one of the offences he might have committed was to be an illegal entrant. If he is that, he is liable under Clause 3(5). He does not have to be sent to prison first, surely. However, it may be that it is only a small point.
§ LORD FOOT
I am not sure that it is a small point; I think it is a point of some substance. May I deal first with the case of a person who commits some breach of the immigration laws themselves? As I understood the noble Lord, what he was saying was that in a case of that kind it may be appropriate to deport the person but inappropriate to impose any penalty upon him. I acknowledge that there is some virtue and some sense in that. If a person 671 is brought up on a charge of having committed some breach of the immigration rules themselves—having broken the conditions on which he is staying here, or something of that kind; or, indeed, having come into the country illegally—I think it may be perfectly proper to retain the right of the court to recommend him for deportation. But that point could be met by deleting this paragraph, as I am suggesting, and then putting something else in its place which would enable the courts to retain the power to recommend deportation when they are dealing with an offence against the immigration laws themselves. That is a matter, surely, of drafting, and something which can perfectly easily be dealt with.
But when we turn to the question of the young offender, I am afraid that I do not follow the noble Lord's argument at all, because what I understood him to be saying was this. Supposing a young offender is brought up on some criminal charge and the court considering what to do with him is deprived of the power to recommend him for deportation, it will be obliged, as I understood the noble Lord to say, to impose some penalty of imprisonment upon him as being the only course that was open to them. But surely that is not so. I had a case professionally only last week in which a German girl was charged with shoplifting. She was brought up before the court; she was found guilty and was fined £3 and recommended for deportation. You can perfectly well fine an offender; you have not got to send him to prison. If he comes up charged with an offence of stealing or something like that, you can impose upon the young offender a fine and, having done so, you are not under any obligation to recommend him for deportation. I may have misunderstood the noble Lord, and if I have done so it is my obtuseness. But as I understand the argument there seems to be no difficulty whatever in dealing with young offenders just as we deal with them to-day if you take away from the courts the powers to recommend deportation where they have no right to send them to prison.
§ LORD ABERDARE
This is an extremely complicated matter, but as I understand the position and the noble Lord has mentioned the particular case 672 of a young offender—there is no power under which that young offender can be sent to prison. That is common ground between us. It is only in the case of an offence carrying a sentence of imprisonment that a court can recommend deportation. Now there might be a case different from that which the noble Lord cited. It might be the case, say, of an Irish boy of 18 who commits an offence such as I mentioned—shoplifting, theft, or some such criminal offence. The court might feel that it was not appropriate to inflict a fine on him, let alone send him to prison. In a case like that, what we want the court to be able to do is to recommend that he should be deported; to be able to give him an absolute discharge with a recommendation for deportation. This clause is the way in which that is achieved.
§ LORD FOOT
I do not think that this difficulty exists at all. Take the case of the young Irishman who commits some criminal offence like shoplifting. What are the options open to the court? It can do anything. It can give him a conditional discharge; it can impose a fine; or, if it is satisfied that there is no other proper course open, it can even send him to prison. It can do any of those things. But where a court considers that the offence is worthy of a conditional discharge, or of a minimal fine of £3 or £5, or something of that kind, should it be within the power of that court, which takes such a small view of the matter, to be able to recommend the appalling penalty, as it may be, of deportation? Even if it is not able to do so, it is still open to the Home Secretary, when the case is reported to him, to consider the whole thing on its merits, and if he is satisfied the person should be deported, then he can make the appropriate order. Therefore I do not really see what the noble Lord's difficulty is. It may be my obtuseness, but at the present moment I am not satisfied that what we are trying to achieve could not be achieved if the Government were prepared to reconsider this matter and possibly introduce some Amendment of their own at the next stage.
§ BARONESS WHITE
May I say one word on this matter? I think we are all in agreement that where there is a breach of the immigration law deportation may be a perfectly appropriate way of dealing with a young offender, or even more with a first offender. That would be perfectly logical. But, putting that on one side, when this point was debated in another place the Secretary of State made great play with the position of a young Irishman who might get into trouble here and who might do better at home. I think we should put that out of our minds, because deportation for an Irishman would be neither here nor there, for he could get on the next boat, and return here without let or hindrance. If, on the other hand, the person concerned was someone from a far more distant place in the Commonwealth, this could be a much graver matter. That, rather than the position of the Irish, is what we should be concerned about in this possible treatment of a first offender or a young offender. I do not think one can be happy about the very careful explanation given by the noble Lord, Lord Aberdare, although we are most grateful for it. Speaking for myself, I am afraid that I did not find it entirely convincing.
§ LORD RITCHIE-CALDER
I hope I may be forgiven for intervening, but are not the Government here introducing the question of transportation, not deportation? This is making transportation a form of punishment. In many cases the sending of a Pakistani back to Dacca would be a greater penalty than anything a magistrate might impose on him.
§ LORD ABERDARE
I think the remarks of the noble Lord, Lord Ritchie-Calder, are not at all relevant, in view of the fact that we are here repeating the provisions which exist in the Commonwealth Immigrants Act 1962. I thank the noble Baroness, Lady White: we are at one so far as breaches of the rules of entry are concerned. As regards the other cases, all I can say is that we think it better to leave these matters to the discretion of the court. The person concerned may not come From Ireland; he may come from France, which, after all, is not very far away. There may be instances where it is more suitable, and in the best interest of the young offender of whom we are thinking, that he should be 674 sent home. I understand that a young person is not normally deported but is given an opportunity of an assisted departure, so that no stigma is involved. It is to help the offender and to deal with him in the best possible way that we need the latitude which this subsection gives us. If I may, I will certainly discuss the matter again with my right honourable friend in the light of what has been said, but noble Lords will have read the proceedings in another place and will know that there are difficulties over this very complicated matter.
§ LORD GARDINER
The Minister has repeated what we were told on the last Amendment, that the justification for this must be right because it is in the 1962 Commonwealth Immigrants Act. To save repetition in discussion of future Amendments may I respectfully say that I do not accept that as an argument. I agree with the noble and learned Lord the Lord Chancellor who said two years ago that we established one of the less liberal and one of the most arbitrary systems of immigration law in the world, in the civilised world at any rate. I suspect that the noble Lord, Lord Windlesham, may himself not strongly disagree with that. In some respects, of course, we are improving this Bill and making it more liberal; but concerning Commonwealth citizens we are making it less liberal because we are downgrading them to the level of aliens. The fact that this has been part of our immigration law for a very long time is not a very strong argument, in view of the fact that we had one of the most arbitrary and illiberal immigration laws compared with the laws of any other country. I have not yet understood why it is so desperately important that so many of these recommendations for deportation should be capable of being made by magistrates' courts, having regard to the fact that the Home Secretary has the power in his own hands. May not something be said for the view that consistency is more likely to be achieved by the Home Secretary than by a thousand magistrates' courts all over the country?
§ 5.46 p.m.
§ On Question, Whether the said Amendment (No. 69) shall be agreed to?
§ Their Lordships divided: Contents, 52; Not-Contents, 89.675
|Addison, V.||Gardiner, L.||O'Hagan, L.|
|Amherst, E.||Garnsworthy, L.||Plummer, Bs.|
|Amulree, L.||Greenwood of Rossendale, L.||Ritchie-Calder, L.|
|Annan, L.||Hall, V.||Royle, L.|
|Beswick, L.||Henley, L. [Teller.]||Sainsbury, L.|
|Birk, Bs.||Hoy, L.||Serota, Bs.|
|Blyton, L.||Hunt, L.||Shackleton, L.|
|Brockway, L.||Hylton, L.||Shepherd, L.|
|Buckinghamshire, E.||Jacques, L.||Stonham, L.|
|Burgh, L.||Janner, L.||Summerskill, Bs.|
|Byers, L.||Leatherland, L.||Wade, L. [Teller.]|
|Champion, L.||Lee of Asheridge, Bs.||Wells-Pestell, L.|
|Davies of Leek, L.||Lindgren, L.||White, Bs.|
|Delacourt-Smith, L.||Lloyd of Hampstead, L.||Willis, L.|
|Diamond, L.||MacLeod of Fuinary, L.||Wootton of Abinger, Bs.|
|Donaldson of Kingsbridge, L.||Moyle, L.||Wynne-Jones, L.|
|Evans of Hungershall, L.||Norwich, V.|
|Foot, L.||Nunburnholme, L.|
|Aberdare, L.||Digby, L.||Masserrene and Ferrard, V.|
|Ailwyn, L.||Drumalbyn, L.||Merrivale, L.|
|Albemarle, E.||Eccles, V.||Milverton, L.|
|Alport, L.||Emmet of Amberley, Bs.||Monck, L.|
|Amory, V.||Falkland, V.||Northchurch, Bs.|
|Balerno, L.||Ferrers, E. [Teller.]||Oakshott, L.|
|Balfour, E.||Fortescue, E.||Orr-Ewing, L.|
|Balfour of Inchrye, L.||Gage, V.||St. Aldwyn, E.|
|Barnby, L.||Garner, L.||St. Helens, L.|
|Beauchamp, E.||Gray, L.||St. Just, L.|
|Belhaven and Stenton, L.||Greenway, L.||St. Oswald, L.|
|Belstead, L.||Grenfell, L.||Sandford, L.|
|Berkeley, Bs.||Gridley, L.||Savile, L.|
|Blackford, L.||Grimston of Westbury, L.||Selkirk, E.|
|Bradford, E.||Hacking, L.||Sempill, Ly.|
|Brecon, L.||Hailes, L.||Skelmersdale, L.|
|Brooke of Cumnor, L.||Hailsham of Saint Marylebone L. (L. Chancellor.)||Somers, L.|
|Brooke of Ystradfellte, Bs.||Stamp, L.|
|Carrington, L.||Hanworth, V.||Strang, L.|
|Cawley, L.||Harvey of Prestbury, L.||Strange, L.|
|Clitheroe, L.||Hastings, L.||Strange of Knokin, Bs.|
|Clwyd, L.||Hatherton, L.||Swinton, E.|
|Conesford, L.||Hawke, L.||Teviot, L.|
|Cork and Orrery, E.||Hives, L.||Thorneycroft, L.|
|Craigavon, V.||Ilford, L.||Tweedsmuir, L.|
|Croft, L.||Jellicoe, E. (L. Privy Seal.)||Tweedsmuir of Belhelvie, Bs.|
|Cromartie, E.||Kilmarnock, L.||Vivian, L.|
|Daventry, V.||Lansdowne, M.||Wakefield of Kendal, L.|
|Denham, L. [Teller.]||Loudoun, C.||Windlesham, L.|
|Derwent, L.||Lucas of Chilworth, L.||Wolverton, L.|
§ Resolved in the negative, and Amendment disagreed to accordingly.
§ 5.53 p.m.
§ LORD WINDLESHAM
It might be convenient to your Lordships if I say that it has been agreed between the usual channels that it might he convenient for the Committee to continue on Monday with the consideration of the Bill. It might not be at an early hour, because there are other proceedings on the Education (Milk) Bill, but I think that this might be convenient to all noble Lords.
§ LORD SHEPHERD
I am grateful to the noble Lord for informing the Commit- 676 tee that we shall be meeting on Monday, and we readily agree to this suggestion. However, I am bound to say that it seems to me strange that an important Bill of this nature, affecting the future of many of our people, should be treated in this haphazard way. We are now in the fourth day. I thought we were to start early—but we did not start until ten minutes to five—and were to go on until 8.30 p.m. The noble Lord now tells us that we will perhaps have another late start on Monday. I do not know whether the noble Lord, Lord Aberdare, can help us, but I feel that a word of protest at the 677 way the Bill is going through the House is justified. In view of the announcement of the noble Lord, Lord Windlesham, certainly we shall meet on Monday and I hope that it will not be too late before we start the Committee stage.
§ LORD WINDLESHAM
I think this shows that Statements about business should be made by the Government Chief Whip and not by the Minister in charge. If your Lordships would like further details about this, perhaps the Opposition Chief Whip and my noble friend the Government Chief Whip would like to have a further word and advise the Committee accordingly.
§ LORD BESWICK
I think it is only fair to say that the proposal that we should meet on Monday was made from this side, but the noble Lord's colleagues agreed to it.
LORD DENHAM moved Amendment No. 70:
Page 9, line 6, leave out (" fourteen ") and insert (" twenty-eight ").
§ The noble Lord said: Clause 6(6) provides that a deportation order shall not be made on the recommendation of a court so long as an appeal is pending and that for this purpose an appeal shall be treated as pending until the expiration of the time for bringing it, or, in Scotland, until the expiration of 14 days from the recommendation of the court. The need for the reference to 14 days in Scotland is because one form of appeal in Scotland, by way of bill of suspension, is not subject to a time limit. The point was raised in another place and it was suggested that some longer time limit was desirable, and on Report my right honourable and learned friend the Lord Advocate undertook to consider altering the limit to 28 days. This Amendment is introduced as a result of this further consideration. I beg to move.
§ On Question. Amendment agreed to.
§ Clause 6, as amended, agreed to.678
§ Clause 7 [Exemption from deportation for certain existing residents]:
§ 5.58 p.m.
LORD BROCKWAY moved Amendment No. 70A:
Page 9, line 11, leave nut from (" section ") to (" was ") in line 13 and insert (" any person who on the 31st of July 1971 ").
§ The noble Lord said: I beg to move Amendment No. 70A and I think it will be for the convenience of the Committee if I take with it Nos. 70B, C and D. It will not be obvious from the Marshalled List of Amendments what is the aim of this series of Amendments. Therefore, it may be to the advantage of the Committee if I explain their general purpose. The first purpose is not to suggest an advantage to Commonwealth citizens but, perhaps rather strangely, to suggest an advantage to those who are not Commonwealth citizens but who nevertheless are immigrants. The object is to extend to all residents from Saturday next (I am interested in that date in the Bill; it suggests that it was thought that the Bill would have passed much earlier than it is likely to do) and not merely to Commonwealth citizens the provisions for exemption from deportation. A stated object of the Bill is to provide uniform treatment for Commonwealth citizens and aliens. If so. I would urge that aliens should have the same privileges as Commonwealth citizens as regards exemption from deportation. That is the first effect of this series of Amendments.
§ The second effect of these Amendments would be to delete the requirement that an individual who has qualified for exemption should remain in this country without interruption, if he is to retain that privilege. This point was raised by the noble Lord, Lord Shepherd, on the previous Amendment, because it is true that this difficulty would be overcome if the individual applied for British nationality after five years. But I regret that many Commonwealth citizens to-day are reluctant to take British nationality, and one of the influences in that direction is the series of Immigration Bills which has been introduced.
§ I am interested in the fact that this requirement was not in the Bill as it was introduced into the other place. It has only been introduced into the Bill as presented to your Lordships' House, and 679 events which have taken place in this Committee since its introduction make it quite inconsistent. In this Committee we carried in Clause 1 an Amendment which insisted that Commonwealth citizens here should retain their status. If Clause 7, as printed in the Bill, is carried without the Amendments which I propose, then the Amendment which we carried to Clause 1 becomes inconsistent with the rest of the Bill, because the status of Commonwealth citizens will be changed. I beg to move.
§ 6.2 p.m.
§ LORD WINDLESHAM
What Clause 7 does is to exempt certain residents from deportation. Under subsection (1) of Clause 7 Commonwealth and Irish citizens who are ordinarily resident in the United Kingdom at the end of July, 1970. are not liable to deportation on conducive grounds if there has been no break in their ordinary residence here since then; nor are they liable to deportation for overstaying, or for breach of conditions, or as members of the family of a person ordered to be deported, or on conviction of a criminal offence, if they have been for the last five years ordinarily resident and there has been no break in their ordinary residence here since the end of July, 1971. This was introduced as a safeguard to the position of Commonwealth citizens established in this country and I mentioned it in reply to the noble Lord, Lord Shepherd, when he spoke on the first Amendment. The lawfully settled Commonwealth immigrant in this country who has been here for five years, or who settled here before the end of July, becomes exempt from deportation proceedings when his five-year period is up. That in general, is the current picture.
As the noble Lord may know, in the 1962 Commonwealth Immigrants Act there was a cut-off point; Commonwealth citizen became subject to control for the first time, and consequently they became subject also to deportation for the first time. The reason was that you cannot really have a restriction on people coming into the country when there is no way of enforcing their departure if they evade the controls. But exemption was provided for somebody who had been established lawfully in this country for five years. This subsection is intended as a safeguard, and I do not think the argument 680 that it is inconsistent with Lord Wade's Amendment is one that I would necessarily uphold. We are studying the significance of Lord Wade's Amendment at the beginning of the Bill. We are not absolutely certain as to its effect on the detailed provisions of the Bill. What we want to do is to study both the general principle and the detail of the Bill in the course of the Recess, and perhaps to discuss some of the implications with the noble Lord.
I am grateful to the noble Lord, Lord Brockway for speaking to these four Amendments. I think they are linked. I was proposing to reply to all four together, and it may shorten our proceedings if I do so. The first Amendment, No. 70A, seeks to extend to aliens the exemption from deportation conferred by the clause on Commonwealth citizens. Amendment No. 70B seeks to provide that all aliens and Commonwealth citizens ordinarily resident at the end of July, 1971, shall be exempt from deportation on conducive grounds, notwithstanding that their ordinary residence may not have been continuous since the end of July, 1971. The third and fourth Amendments, Nos. 70C and 70D, seek to provide that aliens and Commonwealth citizens ordinarily resident at the end of July, 1971, shall not be liable to deportation for overstaying, or for breach of conditions, or as members of a family, or on conviction by a court, if at the relevant time they have for the last five years been ordinarily resident here, notwithstanding that their residence has not been continuous since the end of July, 1971. As to continuity of ordinary residence, it may be helpful to explain that a person who goes temporarily overseas, intending to return to a home which he continues to maintain in this country, does not cease to be ordinarily resident. So absence on holiday or on business trips does not break the continuity of ordinary residence for this purpose.
I hope that I can be helpful to the noble Lord on the last two of his series of four Amendments, but on the first, No. 70A, I am afraid that we cannot see a case for extending to aliens the safeguards contained in the provisions of Clause 7. Indeed, the word"safeguard"is inappropriate in their case, for a reason that I will give in a moment, whereas in the case of the Commonwealth 681 citizen, I think it is an appropriate word to use. It does not seem to us that there is any logic in saying that aliens who are ordinarily resident here at the end of July this year shall be exempt from deportation on conducive grounds. They are already liable to deportation on this and on other grounds, no matter how long their residence, and they will have no exemption in the future. They have not been exempt in the past, and they will not be in the future. So the question of residence hardly seems to arise; for there is in effect no change in the present position. It would be a quite arbitrary act suddenly to say to one small group of people who happen to be in this country on a particular day that they are in a different situation from any other immigrant who had been here in the past and gone away again, or might come here in the future.
Similarly, on Amendment No. 70B, we are not convinced that there is a case for providing that persons without the right of abode who were ordinarily resident from the end of July, 1971, shall never—I stress the word"never"thereafter be liable to deportation on conducive grounds, no matter how long they have been away from the United Kingdom and ordinarily resident elsewhere. The Amendment would, for example, exempt from deportation an alien or a Commonwealth citizen who was ordinarily resident here at the end of July, who then went away, let us say, for a period of ten or twenty years, and who on return was deemed by the Secretary of State to be a suitable case for deportation on conducive grounds. This would mean that account could not have been taken of whatever had happened to that man in the intervening twenty years. He may have been engaged in all sorts of unsatisfactory international activities, but none the less it would not be possible to deport him again on grounds of his exemption by previous residence.
I move on now to Amendments 70C and 70D, the last two of this series. These Amendments provide that aliens or Commonwealth citizens who were ordinarily resident at the end of July, 1971, should not be liable to deportation for overstaying or for breach of conditions, or as members of families, or on conviction by a court, provided that they have had five 682 years' ordinary residence, notwithstanding that this had not been continuous since the end of July, 1971. So far as aliens are concerned. I have explained that we do not see merit in the proposal, since they have never previously been exempt from deportation on grounds of residence, nor will they be under the Bill. But as regards the Commonwealth and Irish citizen, since five years' continuous ordinary residence has conferred exemption in the past, we are inclined to think that the noble Lord, Lord Brockway, has put his finger on a good point here. He will not be surprised to hear that we think the Amendments are defective in their drafting, in that, apart from anything else, they would not require the ordinary residence to be continuous. But, subject to this, we see sonic merit in what he has proposed. He will appreciate that I only saw these Amendments this morning.
§ LORD WINDLESHAM
They were on the Marshalled List for the first time today, and therefore there has not been the opportunity to study them quite as closely as I should have liked. But I can give him an undertaking that if he feels inclined to withdraw these—I do this, not for tactical reasons but on their merits—we should like to study them further. I am afraid I am not with him on extending it to aliens, but as far as Commonwealth citizens are concerned we should like to study his proposal and see whether it is possible to make a change upon the lines he proposes.
§ LORD BROOKE OF CUMNOR
I have listened to the debate with great interest. I am not wholly happy about what my noble friend has said, principally because I remember a number of cases where a Commonwealth citizen has been convicted in the courts and the judge or magistrate has expressed regret that he was not able to recommend him for deportation since he had been in this country for over five years, although he had certainly not succeeded in showing himself to be a good citizen of this country during that time. I know that these arguments are nicely balanced, but I hope my noble friend will bear in mind that there is another side to this matter as well as 683 that which the noble Lord, Lord Brockway has so forcefully put.
§ LORD BROCKWAY
I rather surprisingly appreciate what the Minister has said in response to these Amendments. In view of the fact that he has indicated that there will be further consideration of the last two, with some acceptance of the principle behind them, I beg leave to withdraw the Amendments.
§ Amendment, by leave, withdrawn.
§ Clause 7 agreed to.
§ Clause 8 [Exceptions for seamen aircrews and other special cases]:
§ 6.13 p.m.
LORD FOOT moved Amendment No. 71:
Page 10, line 29, leave out paragraph (b).
The noble Lord said: I beg to move this Amendment. It relates to Clause 8. May I just read out the first subsection:
(1) Where a person arrives at a place in the United Kingdom as a member of the crew of a ship or aircraft under an engagement requiring him to leave on that ship as a member of the crew, or to leave within seven days on that or another aircraft as a member of its crew then unless…
Then certain conditions are set out. One of them, which removes from him the right to enter without leave, is if he has at any time been refused leave to enter the United Kingdom and has not since then been given leave to enter or remain in the United Kingdom. Here I should like to ask a question, because I am concerned about the weight of the words"at any time ". Suppose a seaman comes here on a ship and is obliged to leave on that ship when its time is up, and suppose that some 10 or 15 years ago he had been refused leave to enter, perhaps on some purely technical grounds—his documents were not in order or something of that kind—is it really necessary that that sort of person should require leave to enter in such circumstances? I am merely asking the question. I realise that it is a very small point, but it does not seem to me to matter much whether a person has at some previous date been refused admission to come in, when you are considering the case of seamen or the crew of an aircraft. I merely want to ask the Minister whether he thinks those words
" at any time"are not too weighty and do not carry the matter too far.
§ LORD DENHAM
There might well be occasions, as the noble Lord, Lord Foot, says, when this particular provision, by having effect after a long period of time, might seem a little ridiculous. But the subsection itself is important, because if anybody has been refused entry to this country it is a reasonable presumption that it would be a good idea to look into the reasons for that refusal and see whether they still apply at the time when he applies to come in again. As the noble Lord will realise, once the person has come in again he does not have to seek fresh permission every single time subsequently. Once he has been allowed to come in after this special examination he is then clear of this particular subsection. All he has to do is to apply to the Customs officer or the immigration officer and put his case. In the kind of case which the noble Lord, Lord Foot, talked about I think this would be purely a formality.
§ LORD FOOT
May I ask one further question? If a person is refused leave to enter at any time, is a sort of black list kept? When, for instance, a seaman comes in on a ship, is he required to state whether he has ever been refused permission to enter this country? Do people ever look to see whether his name appears on a black list? Perhaps the noble Lord could tell me what happens.
§ LORD DENHAM
I am not absolutely clear as to how large and how thorough a black list is kept, but of course a list of the members of a crew would be handed in to the immigration authorities, and this would be checked through. It might well be that someone would be missed, but it would be up to the officers of the ship or the aircraft, or whatever it is, to make clear to the crew members that this provision existed and that anyone who had been refused entry would have to be re-examined. I imagine it would be possible for somebody to be missed who should have applied again, but I think that on most occasions the procedure will work all right.
§ Amendment, by leave, withdrawn.685
§ 6.20 p.m.
LORD BROCKWAY moved Amendment No. 71D:
Page 10, line 37, leave out subsection (2).
The noble Lord said: I beg to move this Amendment, the purpose of which is to leave out subsection (2) of Clause 8. I regard this subsection as so dangerous and as going so far beyond the ordinary scope of the Bill that I hope the Committee will give very serious consideration of the Amendment. I will read the terms of the subsection because I think they are of such a character that they will almost themselves convince the Committee that this clause seeks to give the Secretary of State powers which ought not to be admitted—
The Secretary of State may by order exempt any person or class of persons, either unconditionally or subject to such conditions as may be imposed by or under the order, from all or any of the provisions of this Act relating to those who are not patrial.
An order under this subsection, if made with respect to a class of persons, shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
What is the effect of the subsection? It is to give the Secretary of State this quite extraordinary power to control whole groups of people who are not specified in the Bill at all, and to give the Secretary of State the power to do this by Statutory Instrument subject only to annulment by resolution of either House of Parliament. I want to suggest very strongly indeed that it is in principle wrong that fundamental Amendments to the immigration laws should be made by the order of the Secretary of State in this way without the necessity of passing any further Act of Parliament. I take as an illustration the Act of 1968 in which many of your Lordships were deeply interested. That is an Act which, for the first time, denied to British citizens holding British passports the right to enter this country, and this House recognised that a very deep principle was at stake when that Bill came before it. Because that principle was at stake there was a debate and a division representing every group in this House.
§ If this subsection had been the law at that time there would have been no necessity whatsoever for the Government to bring before this House the Bill of 1968. It would have been possible for 686 the Secretary of State to employ these extraordinary powers by which, under this section, any person or class of persons can become involved. I want to urge on the Committee that this is a power which we should not give to the Secretary of State, the more particularly when it can only be conditioned by the negative procedure of annulment and not by the positive procedure which we believe should be contained in the Bill.
§ One cannot foresee the future, but as one looks at the Commonwealth and at the political changes that are taking place within it, can members of this Committee really say that a situation may not arise of equal importance to the Asians of British citizenship in East Africa, and yet the Secretary of State under this subsection would have the right by order to come to a decision as to their fate? Terribly important principles are involved in this whole sphere of immigration, and if there are to be fundamental changes in immigration law they should be brought about by definite Acts of Parliament and not by an order as stated in this subsection. I beg to move.
§ LORD BALFOUR OF INCHRYE
I feel that this particular section refers in specific cases to the crews of ships or aircraft who may be coming here, but may I give a few small examples—
§ LORD GARDINER
Would the noble Lord forgive me? He may well be excused for thinking that because of the marginal note. I would hope that the Minister who is going to reply will help us about the marginal note. From the marginal note, it is true, that it looks as if this clause is dealing simply with seamen; but when you read on it is quite obvious that it is not dealing only with seamen at all.
§ LORD DENHAM
If the noble and learned Lord will take another look at the note, it says—Exceptions for seamen, aircrews and other special cases.Those words apply to this particular case, I am sorry if the noble and learned Lord is confused, but if he looks again at the note I think he will find it reasonable. I can set the mind of the noble Lord, Lord Brockway, at rest. The kind of people 687 who are given exemption by Statutory Instruments made under the existing law, and whose exemption is likely to be continued by an. Order under Clause 8(2). include, for example, members and officials of other Governments here on business, consular officials, and officials of international organisations. The exemptions given are in conformity with our international obligations. These obligations do not remain constant and are subject to alteration from time to time as new international organisations are set up and new international agreements are made. It is not therefore practical to delimit the full extent of exemption once and for all in the Bill itself. This is the reason for the subsection to which the noble Lord, Lord Brockway, objects. He suggests that this clause in the Bill could be used to control whole groups of people—he mentioned specifically the Kenyan-Asians—without the necessity of passing a further Act of Parliament. That cannot be done. The power given by Clause 8(2) is a power to exempt from control people who would otherwise be subject to it, and not to impose control on people who would otherwise be exempt. From the way that the noble Lord, Lord Brockway, read out the subsection I had the impression that he was taking exception to the Negative Resolution procedure at the end of it. That was put in as a safeguard by the Standing Committee in another place.
§ LORD DONALDSON OF KINGS-BRIDGE
I hope that my noble friend, with whom I am in constant agreement on this Bill, will not press this Amendment. If there is a thoroughly bad Bill, which exerts objectionable restrictions on a limited number of people which it defines, and then the Secretary of State is given the right to make exemptions, we all ought to be thoroughly grateful for that.
§ BARONESS WHITE
While not in the least disagreeing with my noble friend Lord Donaldson of Kingsbridge, I would ask the noble Lord the Minister to go farther than he has done. The trouble over this particular clause is that it is so wide. For example, it has been suggested that under this provision the Secretary of State could exempt from all the controls persons from the European Economic Community as a class of person. It may not be in the minds of the Government 688 so to do, but it could be done. If it is intended to apply only to limited groups of people, such as those described by the noble Lord, would it not be possible to describe them in Schedule 2 to the Bill, instead of leaving a part of the Bill which looks so wide when it is intended to be extremely narrow? In another place the Minister of State there said that he would look at the drafting again, because objections were taken to the form of expression. It is misleading, if one appears to be legislating for a wide field but in fact intends to do so on a narrow one. It does not seem to be good legislation. Therefore could we ask the Government to have a further look at this? If there any objection to describing in the Schedule the classes of people who are covered? They were given in detail in another place. If that Schedule has to be amended to take account of any change in our international obligations, it could be done, and there would be no possibility of misapprehension as to the real intentions of the legislation.
§ LORD DENHAM
We will certainly consider carefully what the noble Baroness has said. The reason the clause has been drawn so wide is so that, with international agreements being fairly frequently made and different circumstances arising with each, the subsection should enable the provisions to be made in conformity with these international obligations. The noble Baroness was worried about persons from the European Economic Community, and whether this subsection could provide a backdoor method of bringing in nationals of those countries. There is no question of that. Entry to the European Economic Community does not involve exempting nationals of member countries from immigration control, but only of giving them preferential treatment in certain respects under the immigration rules. I can give the noble Baroness an assurance that Clause 8(2) will not be used to give effect to the free movement of labour provisions of the Treaty of Rome.
§ LORD SHEPHERD
The noble Lord's assurance is of great value to the Committee, but it will be of little value outside. In view of the explanation of the noble Lord I fully understand the reasons why this subsection has been put in. I do not think it ought to have been in Clause 8, which really deals with seamen 689 and air crews. These are specific categories—
§ LORD SHEPHERD
If the noble Lord, Lord Windlesham, will permit me to finish, perhaps we may get on a little faster. I said that Clause 8 deals with seamen and air crews. This is a particular type of employment, and different types of people will enter this country. If subsection (2) is to deal with diplomats and the like, they fall into a completely different class of employment from that of seamen and air crews—
§ LORD SHEPHERD
if the noble Lord will let me finish, I am trying to be helpful. My noble friend Lady White suggested that this provision could be put into Schedule 2. That may be a way out. I wonder whether the best course would be to put subsection (2) in a separate clause on its own, with a rubric stating that it refers to diplomats and those who come within that general definition. That would take them well away from seamen and air crews.
§ LORD DENHAM
While we are looking at what the noble Baroness has said, we will naturally look with equal care at the remarks of the noble Lord, Lord Shepherd. I cannot commit the Government to change this clause, but we do feel, without having studied what the noble Lord and the noble Baroness have said, that the drafting of the clause is correct. If the noble Lord will look on the next page of the Bill he will see that it deals not only with seamen, for there are also provisions relating to the Armed Forces and to diplomats.
§ LORD BROCKWAY
I do not at all regret having moved this Amendment. The discussion which has taken place has strengthened my view about the great danger of the inclusion of this subsection. It was suggested by my noble friend Lord Donaldson of Kingsbridge that I ought to welcome this subsection because it would exempt certain classes from the bad provisions of this Bill. To that extent I would welcome it, but the Bill does not only impose restrictions upon certain classes of Commonwealth immigrants it gives privileges to other sec 690 tions of Commonwealth immigrants. There will be great danger under the subsection that they may be exempted from some of the privileges. I am thinking of the patrials, who have particular privileges. It may be, in the circumstances of Commonwealth development, as it was in the case of the British Asians in East Africa who had British citizenship, that their rights will be limited under this subsection. Therefore I make no apology at all for raising the matter. In view of the Government's having said that they will give consideration to the points that have been raised, I will withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 8 agreed to.
§ Clause 9 [Further provisions as to common travel area]:
LORD BROCKWAY had given Notice of his intention to move Amendment No. 71E:
Page 13, line 2, after (" instrument ") insert (" a draft of ").
§ The noble Lord said: I will detain the Committee for only a moment on this Amendment. I will take with it Amendment No. 71 F. These Amendments raise the issue as to whether there is to be a negative or a positive treatment when matters come before the Houses of Parliament. That matter has been raised on a number of occasions. It can be raised again on Report stage if we do not get satisfaction, and in view of the fact I am prepared not to move these Amendments this evening.
§ Clause 9 agreed to.
§ Clauses 10 and 11 agreed to.
§ Clause 12 [Immigration Appeal Tribunal and adjudicators]:
§ 6.40 p.m.
§ LORD BROCKWAY moved Amendment No. 71G:
Page 14, line 21, leave out paragraph (a) and insert—
(" (a) the Lord Chancellor shall appoint adjudicators and shall continue to appoint members of the tribunal ").
§ The noble Lord said: I beg to move Amendment No. 71G. It is of some psychological importance. The Amendment suggests that the Lord Chancellor, rather than the Secretary of State, shall 691 appoint the adjudicators as well as members of the Appeal Tribunal. The object of the Amendment is that it should be quite clear that there is impartiality in the appointment of these officers. The Secretary of State is really a party to the dispute, and there is a fairly strong feeling among those who make these appeals that it is all a part of the Home Office set-up. That feeling will be strengthened if the Home Secretary is to have responsibility for the appointment of adjudicators. The position might be assisted a little if that right were in the hands of the Lord Chancellor. I beg to move.
§ LORD WINDLESHAM
This matter was considered with some care in 1967 by an independent Committee which was set up to consider the establishment of a system of immigration appeals. It was the Committee on Immigration Appeals, under the chairmanship of Sir Roy Wilson, which reported in August, 1967. What the Wilson Committee said on this particular point, in paragraph 153 of their Report (Cmnd. 3387), was as follows:We recommend that the appointment of adjudicators should be vested in the Home Secretary, who will be guided by any general recommendations made by the Council on Tribunals under Section 4 of the Tribunals and Inquiries Act. We have no fear that the independence of the adjudicators will be any less complete because they are appointed by the Home Secretary.The previous Government (the noble and learned Lord, Lord Gardiner, was Lord Chancellor at the time and no doubt considered this matter) accepted this recommendation of the Wilson Committee and it was included in the Immigration Appeals Act 1969.
The argument advanced by the noble Lord, Lord Brockway, in moving the Amendment was perhaps met to a certain extent in that the Lord Chancellor appoints members of the Tribunal, the appellate body. These are key appointments, and the Lord Chancellor's responsibility for them was thought in itself to be sufficient guarantee that the appeals system would function impartially. They of course review the decisions of the adjudicators, who are in a position of a court of first instance in this respect. When the Immigration Appeals Bill was being prepared a couple of years ago it was represented to the Home Office by one or two bodies concerned with the 692 interests of immigrants that if the adjudicators were to be manifestly impartial, and if their decisions were to command the confidence of the immigrant communities, they should be appointed by the Lord Chancellor. This view, as I say, did not attract support from the previous Government; nor, I believe, did it attract much support when the Bill was being debated in Parliament, and it is not a point of view that has been pressed subsequently. We do not believe that the fears which were expressed at that time have been borne out in practice.
I gave some statistics last week when we discussed the appeals system in another context. In an 11-month period from July 1, 1970, the number of appeals before adjudicators which were allowed was 147, compared to 681 that were dismissed. This is really a test of confidence. If there had been no appeals allowed by the adjudicators against the Home Office at all, people might have begun to wonder whether the appeals system was as valuable as had been suggested. But the rate at which appeals are being brought is running now at about 200 a month. I think this shows that people do have confidence in the independence of the adjudicators and that the Government of the day—we agree with our predecessors on this—took a wise decision in accepting the recommendation of the Wilson Committee that the adjudicators should be appointed by the Home Secretary.
§ Amendment, by leave, withdrawn.
§ Clause 12 agreed to.
§ Clause 13 [Appeals against exclusion from United Kingdom]:
§ 6.46 p.m.
§ LORD SHEPHERD moved Amendment No. 72:
Page 14, line 37, at end insert—
(" ( ) Subject to the provisions of this Part of this Act, a person who, on an application duly made, is refused a work permit or is granted a work permit subject to conditions may appeal to an adjudicator against the refusal or the conditions.")
§ The noble Lord said: I hope that the Government will be able to consider this Amendment sympathetically. In the first 693 two subsections of Clause 13 there is provision for an appeals system in certain circumstances. Amendment No. 72 seeks to provide an appeals system where a person who has applied for a work permit has had it refused, or has been granted a work permit where the conditions imposed were in his view clearly unfair. These work permits are a matter of considerable importance, particularly in the smaller Territories and the position is often less understood in those smaller Territories when a work permit is refused. They feel that they are perhaps being treated less well than some of the larger territories.
§ I should have thought that if the noble Lord could accept this Amendment two things would arise. First, if an applicant felt he had been treated wrongly he would be able to have the matter reviewed. Secondly, it would provide a true feeling of impartiality to the whole system, which, I would agree with the Government, has in the past worked well. I beg to move.
§ LORD WINDLESHAM
The aim of the Amendment, as the noble Lord, Lord Shepherd, explained in moving it, is to give a right of appeal to the immigration appeal authorities where a person was refused a work permit or perhaps where it was granted only subject to conditions. I appreciate the way in which the noble Lord moved the Amendment, but am afraid it is defective, and seriously so—not in a way so that it could be tidied up by improving drafting or anything of that kind. It would confer the right of appeal, not on the prospective immigrant at all but on the prospective employer, because it is the employer who applies for the work permit. Secondly, it refers to a work permit being granted subject to conditions. But this is not so. The permit is granted to the employer and the conditions are then applied to the holder when he arrives here.
But, leaving these problems on one side for a moment, we are not convinced that there really is a case for an appeal on these lines where a work permit is refused. In considering this we must remember that the system of work permits—or, previously, employment vouchers, but at any rate a document of entry for the purposes of work—is not a new feature. We have had these 694 for aliens and for Commonwealth citizens for almost a decade. The Wilson Committee, to which I have just referred and which was set up to consider the establishment in the most appropriate form of an appeals system, did not receive any representation that a right of appeal against refusal of a work permit or an employment voucher was desirable, and they made no recommendation that this should be established. Later on, after the Committee had reported in 1967, certain bodies concerned with immigrant interests suggested to the Home Office that such a right of appeal might be provided. This was again before the advent of the present Administration, and no doubt these representations were fully considered by my predecessors at the Home Office when the Immigration Appeals Act 1969 was introduced and subsequently went on the Statute Book. Since the Act came into force in July 1970 we have had no experience that the decision to confine the immigration appeals system to the range of decisions which, under that Act, are subject to appeal was in any way wrong one.
Further, there is the point that the immigration appeal authority really would not be at all well fitted to deal with appeals about work permits. These would inevitably raise difficult questions in the field of industrial relations and employment policies. To a large extent they would turn on the availability of local labour. It is difficult to see how the adjudicators could really make judgments on matters of that kind.
Noble Lords who are familiar with the subject will know, too, that the trade unions have an interest in the issue of work permits. If they feel that their members' jobs are likely to be affected they make representations to the Department of Employment, and the Department takes these into account in deciding on the issue of work permits. Here again, it does not seem that the immigration appellate authorities would be the appropriate bodies or would really be able to come to any useful judgment on matters of this sort. As I have said, the work permit is issued on criteria which are dependent on questions such as the availability of local labour, and we do not believe that an Amendment on these lines, suggesting that matters of this sort 695 should be brought under review by the immigration appeals system, would be in any way practicable.
§ LORD SHEPHERD
I am most grateful for the explanation given by the noble Lord, Lord Windlesham, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.54 p.m.
LORD FOOT moved Amendment No. 73:
Page 14, line 38, leave out subsection (3).
§ The noble Lord said: The effect of Clause 13(3) which I am seeking to delete is to prevent certain classes of person—and for the moment I will not deal with whom they are—from appealing against a refusal of leave to enter this country until they have left the United Kingdom.
§ The first comment I would like to make upon that is that the rule is absolute. There is no discretion given to anyone, even in the cases of the gravest possible hardship, to say"No, we will allow you to have your appeal heard in this country and we will allow you to stay in this country sufficiently long for that to be done ". If a person falls within the class dealt with by this subsection then that person must leave the country before he can initiate an appeal or have his appeal heard. My own belief is that this can give rise to great and undeserved hardship. I think there may be many cases of people who seek to enter this country without, for example, a certificate of patriality although they may be patrials, or without an entry clearance although they may he entitled to an entry clearance they have not provided themselves with those documents because of innocent mistakes.
May I give one example? One of the classes of person dealt with under this subsection is the person who is a patrial by virtue of Clause 2(1)(c), that is to say a person who
is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands for a continuous period of five years or more ".
That sort of person is required under this subsection, before he goes out of the country, to obtain a certificate of patriality in order that he may get back. If he fails to do that and he seeks to
come back into the country and says"I am a patrial ", he will be told"If you have not armed yourself with a certificate of patriality we are afraid that you must get out of the country before you can appeal on the grounds that you are in fact patrial."
§ How easy it would be for such a person—say someone coming from East Africa, who has been resident here for five years and has achieved patriality—how easy for that person to go for a holiday on the Continent, unaware that he has to obtain a certificate of patriality, and then to seek to come into one of the ports of entry and to be told"No, you have not got your certificate of patriality and we are not entitled to go into the matter as to whether or not you are a patrial. If you want to appeal against this refusal of entry you must go away again and initiate your appeal from outside."
§ Not only can people be caught in an innocent mistake of that kind but also, I suggest, this provision can bear with uneven hardship upon different classes of person. If a patrial, or a person who claims to be a patrial, is refused entry because he has not got a certificate of patriality, all he need do if he is well-to-do is fly over to Paris, and get in touch with his legal advisers; if the matter is one of pure technicality he can have his appeal heard and all is well. He is not seriously inconvenienced. But what about the case of the dependant of a Commonwealth citizen who is resident in this country, who has come from halfway across the world, and to do so has possibly used a large sum of money representing the savings of a long period? That person, that dependant—that child, it may be—arrives at Heathrow without having armed himself with the entry certificate he ought to have, possibly as the result of error, possibly because he was not properly informed or possibly because the document is defective, through no fault of his own. That person cannot just fly over to Paris and get it all put right: that person is bound to be put on the next plane taking him back to Asia and may never be able to contemplate coming to this country again, with all the expense it may involve. Therefore, this provision, as I see it, may bear with most uneven hardness on these different classes of people.
§ The last question I would ask the Minister is this: what really is the object 697 of this provision? Why is it necessary that somebody should go out of the country before he can initiate the procedures of appeal? What harm would be done if people in those circumstances were allowed to remain in this country just for the short period necessary for their appeals to be heard? The Minister will know, as I do, that these appeals can be dealt with very rapidly, and indeed are dealt with very rapidly. He will know that the great majority of appeals against refusal at the port of entry are dealt with in 24 or 48 hours. What real harm would be done if we were to allow these people to stay in this country—in detention it may be—for the period necessary for their appeals to be heard? I beg the Minister to consider this matter because I think that already, under the system operating to-day, particularly in the cases of dependants of Commonwealth citizens in this country and seeking to come into this country, very great hardship is occasioned when somebody, particularly a child, comes here not armed with a document he should have. I beg to move.
§ LORD WINDLESHAM
May I preface my reply to this Amendment by saying how much the Government appreciate the work that the noble Lord, Lord Foot, does in his capacity as Chairman of the United Kingdom Immigrants Advisory Service? This is a body made up of representatives of voluntary organisations representing immigrants' interests which employs counsellors at all the ports in order that people wishing to enter this country who encounter difficulty for some reason or other may know what their rights of appeal are and are able to exercise them. I know of the very close interest which the noble Lord, Lord Foot, takes in the work of the service and I should like to place on record the Government's appreciation.
Through his knowledge of the immigration appeals system he has picked up in this Amendment what is, I think, undoubtedly an issue of considerable substance and importance. There are considerations relating to the policy both of the previous Administration and of this one, which I ought to rehearse in answering the case he has made. The Amendment deleting this part of the clause as he correctly said would give the ordinary 698 passenger a right of appeal exercisable at the ports in all circumstances, whereas the Bill provides that only the holder of an entry clearance or a work permit shall be able to appeal before removal. Section 2 of the Immigration Appeals Act, consistently with the recommendation of the Wilson Committee to which I have already referred, provided for all passengers to be able to appeal before removal from the United Kingdom. But this provision in the Act of 1969 has not been introduced, as the noble Lord knows. Instead, the last Administration introduced a non-statutory right of appeal for the holders of entry clearance and work permits. The Bill seeks to preserve that situation, the de facto situation, by giving statutory backing to the arrangements introduced by the previous Government, and in addition to give all other passengers—those not holding an entry clearance or a work permit—a right of appeal after leaving the United Kingdom.
The reasons for this are as follows. The Wilson Committee, in recommending comprehensive rights of appeal at the ports in 1967, had chiefly in mind the case of immigrants or their dependants who had sold up their home and arrived in the United Kingdom for permanent settlement and who were then refused entry. Such decisions caused great hardship and distress. But Parliament, with the agreement of both Parties, subsequently decided in 1969 that Commonwealth citizens seeking to enter as dependants should be required to obtain entry certificates before setting out, and this was given effect in Section 20 of the Immigration Appeals Act 1969. So since 1969 it has been mandatory that a person coming to this country as a dependant should have an entry certificate before he starts out. This system has been working for the last two years with a right of appeal against refusal to issue an entry certificate, and a right of appeal at the ports in those rare cases where the holder of a certificate is refused entry.
I think I am right in saying that in one of the cases mentioned by the noble Lord just now—the dependant arriving with an entry certificate who for some reason is challenged (it may be thought to be forged or something of that sort)—has a right of appeal if he is in possession of an entry document.
§ 7.7 p.m.
§ LORD WINDLESHAM
In drafting this Bill the Government came to the conclusion that the requirement under the 1969 Act of an entry certificate was a desirable one and one that in the interest of the dependants themselves and their families here should be continued, and that a dependant should apply in his country of origin for an entry certificate before setting out. If a right of appeal exercisable at the ports before removal were now introduced the Commonwealth citizen coming for settlement would not benefit from it, because he would still be required to obtain an entry certificate or employment voucher, or, under the new system, a work permit. The categories of person who would benefit would, in the main, be people like visitors and students who do not come for settlement but for a relatively short period. We must accept that it may cause hardship, for a visitor or student to be refused entry, but the hardship is not comparable with the refusal of entry to a person coming for settlement. So the frame of reference has altered since 1967, and the case for introducing a right of appeal exercisable for the residual categories of passengers is different now from what it was then.
There are other factors in addition which have led the Government to adopt the solution contained in the Bill. One is the very steep rise in traffic at the ports over the last three to four years. On Second Reading I mentioned that in 1966 ten million passengers a year were arriving, mainly as visitors, at the ports of entry in this country. By 1970, the figure had risen to 14 million; that was an increase of 40 per cent. in four years. But the total number of passengers who were subject to control—that is, those who do not have a right of entry—had increased more sharply even than that, by 73 per cent. over four years. With the advent of jumbo jets and improved facilities for people coming with their own cars this trend of very sharply increasing 700 numbers coming through the ports is likely to increase. This has put very great pressure on the Immigration Service and it has led, unfortunately, to delays at some ports.
If there were to be rights of appeal exerciseable at the ports, this would either mean accepting long delays, or requiring a large addition to the numbers of officers in the Immigration Service so that they could be free to take part in appeal hearings, to process appeals, and to present the cases. These are tasks which have to be carried out by the immigration officers who are presenting the case for one side, and very often a counsellor in the service of the noble Lord, Lord Foot, is presenting the case to the adjudicator for the person who may have been refused entry. Therefore, there is here a question of manpower in the Immigration Service, and, with these huge numbers at the peak times—as anyone knows who comes through the Channel ports, or particularly London Airport—the delays that may result can build up quickly if there are not enough immigration officers at their posts.
In deciding not to go beyond the present arrangements—and I emphasise that the Bill preserves the de facto status quo—and introduce rights of appeal exercisable at the ports before removal, the Bill will be in line with European practice. Nevertheless, all passengers will have a right of appeal after removal from the United Kingdom. This arrangement serves two purposes. First, from the date of the introduction of the new arrangements every immigration officer will know that if he refuses admission he will be doing so in the knowledge that he may thereafter be required to account for his decision to an impartial authority. Secondly, if the United Kingdom were to enter the E.E.C., this arrangement would fulfil our obligations towards E.E.C. nationals.
I hope that has not been too full a reply. As I say, this is a considerable issue of policy. There are these considerations of European practice, of the sheer practical implications at the ports because of the increase in numbers, and the fact that since it is now mandatory for a dependant to have an entry certificate, the situation has really changed greatly over the last three years. I have 701 had some first hand experience of this, but people who are not quite so close to it might think that for the dependant in India who applies for an entry certificate at one of the High Commission posts, an appeal in this country might not be very useful, but in practice the appeal in this country is of great value, because the family very often are established in this country. I think the noble Lord, Lord Brockway, is familiar with many cases of this sort. It is very often in the Midlands that the appeal is held, and the relations attend. They represent the appellant, and incidentally they have great confidence, going back to an earlier point, in the adjudicator. If the appeal was held overseas, the system might not have earned the confidence of people in this country quite so quickly as it has. It is for reasons of this sort that, although I am sympathetic to what the noble Lord, Lord Foot, has said, I am afraid there are these considerations which point in the other direction.
§ 7.13 p.m.
§ BARONESS WHITE
May I ask the noble Lord a question? I was trying to follow him carefully, and I do not think he dealt adequately with the point about a returning patrial who had failed to furnish himself with evidence of his patriality. I think this is important. People do not always appreciate that they need to have these documents if they leave these shores and then wish to re-enter, perhaps after some considerable time. They may, nevertheless, be qualified under Clause 2(1)(c) or (d), and it is precisely against that that they may not appeal until they have returned home, possibly from some very distant country indeed. This worries me considerably, because the mere holding of a passport does not necessarily indicate that one has qualified for patriality under Clause 2(1)(c) or(d). I wonder whether the noble Lord could say a little more about that aspect.
§ LORD WINDLESHAM
I adhered to issues of policy, because this is a fairly big issue and one which has been considered over a period of time, and there are really quite large considerations on the other side. I will deal with the noble Baroness's point, because I agree that it is a worrying one. I do not think that the results will necessarily be quite so adverse as the noble Baroness 702 fears. The man who is patrial by virtue of Clause 2(1)(c), needs a certificate of patriality, as the noble Lord, Lord Foot, correctly said, if he wishes to establish on returning to this country that he is exempt from control. But this does not mean that if he does not have such a certificate, which will be an endorsement in his passport, he will be refused entry. What it means is that he will be examined by an immigration officer; that he is not exempt from examination by an immigration officer. He will be in the same position as somebody who is subject to control and will, in all probability, be admitted as a returning resident under paragraph 50 of the Immigration Rules, Control on Entry.
§ LORD FOOT
If a patrial, in circumstances such as the noble Baroness describes and as I described earlier, goes out of the country with a passport, but not knowing that he ought to get a certificate of patriality endorsed on his passport, and then seeks to come back, of course the immigration officer will examine that person. But if the immigration officer is not satisfied from what lie hears that this person is indeed a patrial, then, as I understand it, under the rules he is obliged to say,"No, I refuse you entry ". Once he has done that—and the Minister will correct me if I am wrong—then the patrial, or the alleged patrial, cannot pursue his appeal except by going out of the country and initiating the appeal from outside. I should be grateful if the Minister would confirm that that is the case.
§ LORD WINDLESHAM
I should like to look at this point very carefully. We are dealing in paragraph (c) with an extremely small category of people. I think the noble Lord may have a point here. I am sure that the answer I have given him is correct, and I think that in 99 cases out of 100 he would be examined by an immigration officer, and the immigration officer would then fall back on the immigration rules which deal with returning residents. I take the point about what happens then if, having done so, the immigration officer still says,"I am not satisfied ". In fact the case has then to be referred to a chief immigration officer, who is required to review it. Inquiries are then made; people are rung up. If, at the end of the day, the decision is taken"No, the passenger cannot be 703 admitted in this category ", then I should like to consider the point the noble Lord, Lord Foot, has made. On first hearing it—and I did not have notice of this particular point—I think he is probably right that an appeal would not lie at the ports, and it may well be that this is something we ought to have a look at again. We are in complicated territory here, and I think I ought to study that particular point with some care.
§ LORD DONALDSON OF KINGS-BRIDGE
The only point I want to make is that, listening to this debate, one is confronted with a very strong case involving ignorant people who become confused and make mistakes, and an immense administrative problem, which I think the noble Lord, Lord Windlesham, has made perfectly clear. We on this side of the Committee have not exercised the sentimental argument very much over this Bill—just a little, but not very much—and I do not want to do it now. When you visualise the kind of case that the noble Lord put before us, of the kind of mistake that we all make when travelling abroad, and consider what it must be like to be sent home a couple of thousand miles, I feel that the noble Lord, Lord Windlesham, ought to look at this point a good deal more deeply. If he had to come to the Houses of Parliament and ask for more money to employ more immigration officers, then, so far as I am concerned, this would be a reasonable increase in civil servants to which I certainly should not object. I feel that he has slightly diverted us on to technicalities. Admittedly, what he said is true, but he has lost the real evil of these cases. Even if they happen only twice a year, they ought to be stopped. But, so far as I can see, there is no means under the present arrangements of stopping them.
§ LORD GARDINER
While the Minister is considering this matter, may I ask whether this is the position? If a patrial goes from here to Italy or Russia for a holiday and has his wallet, containing his passport, stolen and—wrongly, as it turns out—his story is not believed because he has nothing at all to show and can only say that he had a passport and has lost it, will he have to go back to Russia 704 before he can appeal if the Bill remains as it is?
§ LORD WINDLESHAM
The two points to which the noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Foot, have referred relate to the first part of subsection (3), whereas the issue of policy which we have been debating is contained in the last two lines of page 14 and the first two lines of page 15. As I said, I should like to look at the position of the people who are patrial under Clause 2(1)(c) and the Clause 2(1)(d) people. They are the only people who are concerned, and not the people who have the right of abode under Clause 2(1)(a) and Clause 2(1)(b), who represent the overwhelming majority. As I said, I think the noble Lord, Lord Foot, has raised a special case which I should like to look at, and I should like also to look into the case of the visitor who loses his passport in Moscow.
Let me return to the noble Lord, Lord Donaldson of Kingsbridge, because what he said was on the central issue. As the noble Lord, Lord Foot, knows, this is a major issue which has been debated for some three or four years. The difficulty with dependants, as the previous Administration found, is that if you establish a system to catch the two cases a year to which the noble Lord referred, they will become the pattern if a right of appeal here is provided. Why should only those two people use it? I regret to say—and this is common knowledge to those who study the subject—that here we have one of the standard methods of evasion of the immigration control. The system of mandatory entry certificate clearances with an appeal in this country, but with the certificate being issued by the British High Commission post abroad, was established precisely to bring this means of evasion to an end.
The noble Lord talked about public expenditure. These diplomatic posts are frequently staffed by immigration officers. We have attached to the British High Commissison in Delhi a chief immigration officer who serves as a second secretary and has considerable staff. He has with him five or six entry certificate officers who are skilled immigration officers. They carry out inquiries there and then, because if there is going to be an argument about a family relationship 705 —whether or not somebody is a son or a nephew or is under the ages of 16 or 18—these inquiries can take quite a long time to complete in Asia. It seems to us, as it seemed to the previous Administration who had to deal with what had become a practical problem—Mr. Callaghan said this in his evidence to the Select Committee—that we ought to resolve such matters at the other end. Both the noble Lord, Lord Donaldson of Kingsbridge, and the noble Lord, Lord Foot, said that these appeals could be cleared very quickly at the ports, and that is quite true with the system as it operates at the moment. It would certainly be true if the two dependants of the noble Lord, Lord Donaldson, were exercising an appeal here. But it would not be true if there were a general appeal for all passengers, which is what the Amendment proposes.
The Canadians have had gravely discouraging experience with their appeal system. That is one of the systems investigated—and commented upon very favourably—at the time of the Wilson Report on Immigration Appeals, because of the delays that had set in owing to the nature of the system, after somebody had been admitted. A public inquiry was held under a Mr. Sedgwick into this matter of somebody being admitted, perhaps on business or to visit some friends, for a week or two. Under the system, such a person could appeal, and it was taking 15 or 18 months before he had exercised his full appeal rights. The Canadian Government said, and Mr. Sedgwick, who was carrying out the public inquiry on their behalf, also said, that this was really a misuse of the appeal system, because at the end of that time all things were no longer equal. The man was there. He had to be allowed to work. He could not be held in custody for that period. He had done nothing except to arrive and exercise his legal rights. It was a grave practical problem. He may even have had a child in that time, since he had been working there for 12 or 15 months. Naturally, the appeal system became overloaded, and very often a person could not be asked to leave after such a period.
Therefore, there are these practical problems and the question of dependants is the central one. We must be clear in our minds that the Bill preserves the 706 current situation: nobody who now has a right of appeal exercisable at the ports here will be losing it. When the entry certificate procedure was set up, those who are closest to the subject felt that the procedure represented a distinct step forward in terms of practical administration, and that the arrangements set up by Mr. Callaghan—which are, broadly speaking, being adhered to—constituted the best solution.
§ LORD FOOT
May I thank the noble Lord sincerely for the full explanation he has given, and of course I agree with a great deal of it. I, and my Party in this House, opposed the 1969 change of front at the last moment, when the previous Government decided to introduce the compulsory entry certificate for dependants in the place of origin, but I have to acknowledge that there are advantages in the system. There are counterbalancing disadvantages, but there are advantages. It is of some advantage to have an appeal here in this country where the sponsor of the dependant is available, even though the appellant himself is not available. So I am not criticising the general system.
But we are dealing with two matters. We are dealing with the question of the patrial, which is a very specialised point, and the noble Lord has been good enough to say that he will have another look at that to see whether anything can be done. But, as he and the noble Lord, Lord Donaldson, have said, what is really important is the person who comes from the other side of the world, perhaps innocently and not knowing that he has not complied with regulations. Even if you maintained the general principle that, in the ordinary way, persons who come here without the necessary entry certificate or entry clearance must go out of the country before they can lodge an appeal, I should have thought that it was not beyond the wit of man to allow the Secretary of State to exercise a discretion when it appeared, on the face of it, that a person had come here honestly and innocently and was the victim of a mistake and a misunderstanding. I should have thought it was possible to enable the Secretary of State, for example, to exempt such persons from the provisions of this clause.
I ask the Minister to consider whether that can be done, because the present 707 state of affairs, even if only two or three people a year come here, perhaps using up the savings of five or ten years in order to do it, and are then sent back, and particularly if children are involved, is really intolerable and is something which we ought to be capable of dealing with on some administrative basis. I shall withdraw this Amendment, and I am grateful to the noble Lord for having gone as far as he has. I hope that he will be prepared to consider that final suggestion, too. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD SHEPHERD had given notice of his intention to move Amendment No. 74:
Page 15, line 2, leave out (" at a port of entry and ").
§ The noble Lord said: In the light of the previous debate, I do not intend to move this Amendment.
§ 7.30 p.m.
LORD BROCKWAY moved Amendment No. 74A:
Page 15, line 4, leave out (" shall ") and insert (" need not ").
§ The noble Lord said: In this case, too, the discussion would be largely a repetition of the debate that has taken place previously. I would only say in respect of it that, as the noble Lord, Lord Windlesham, knows, very often immigrants come to Heathrow or elsewhere in a state of ignorance, in a state of confusion; and sometimes it has not been the fault of the individual immigrant that he does not have the certificate of entry. This subsection says that an appeal shall be refused if it appears that the appellant has entered the country illegally. I suggest that that is going rather far. I should have hoped that in this instance an appeal might be allowed directly to the adjudicator in this country, without the necessity for the appellant to leave the country first. That would seem to me to be a more just and fair attitude towards these particular persons than what is now proposed. Therefore, for the purposes of hearing the Minister's reply I move this Amendment. Perhaps I may say that I think Amendments Nos. 74A and 74B may be taken together. I beg to move.708
§ LORD DENHAM
Clause 13(4) repeats in substance the provisions of Section 2(2) of the Immigration Appeals Act 1969. It continues the present situation, in which an appeal against refusal of entry cannot succeed if the appellate authority is satisfied that the appellant is an illegal entrant; that is, that he sought to enter without examination or in breach of a deportation order.
It is right that a person who is being refused entry as an illegal entrant should be able to challenge the refusal on the ground that he is not in fact an illegal entrant. But in the view of Her Majesty's Government there is no reason for departing from the view taken by Parliament in 1969, that in such a case the right of appeal should extend no further. Anyone who believes that he has a valid claim to admission ought to present himself in the proper way, and not try to circumvent the control. If he chooses to make an attempt at evasion, he must accept the consequences of his illegal action. It will subsequently be open to him to seek admission lawfully and to appeal from overseas if his application for an entry clearance, or for revocation of a deportation order in force against him, is refused.
The restriction on an illegal entrant's right of appeal does not mean that no illegal entrant will ever be allowed to stay. In such cases, any compassionate circumstances and all other relevant factors are taken into consideration, but this is and should remain a matter for the discretion of the Secretary of State and not for the appellate authorities.
§ LORD BROCKWAY
In view of the earlier discussion we had I do not want to press the Amendment. I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ 7.34 p.m.
LORD FOOT moved Amendment No. 75:
Page 15, line 5, leave out (" appears ") and insert (" is proved ").
The noble Lord said: This is rather similar to the point that the noble Lord, Lord Brockway, was making, but my point is a little different. What I am worried about is the words"if it appears that ", which appear both in the second
and in the fourth lines of this subsection. The subsection in full says:
An appeal against a refusal of leave to enter shall be dismissed if it appears that the appellant was at the time of the refusal an illegal entrant, and an appeal against a refusal of an entry clearance shall be dismissed if it appears that a deportation order was at the time of the refusal in force in respect of the appellant.
What do the words"if it appears"mean? Clearly they must mean something less than"if it is proved ", but how much less? This is a matter of semantics. But suppose somebody comes before the adjudicator, seeking to appeal against a refusal of leave to enter, how is the matter presented to the adjudicator? Does the representative of the Home Office say:"We are of the opinion that this appellant was at the time of refusal an illegal entrant ", and is that sufficient to make it appear to the adjudicator that he was an illegal entrant? Surely it ought to be proved as a matter of evidence; and if it ought to be proved, what is the objection to deleting the words"if it appears"and putting in the words"if it is proved "?
§ The second question I want to ask is this. When one uses the words"if it appears ", it does not answer the question: appears to whom? Does it mean appears to the immigration officer, does it mean appears to the Secretary of State, or does it mean appears to the adjudicator? If it means appears to the immigration officer, then all the immigration officer has to do when he goes before the adjudicator is to say,"Look—it appears to me that he is an illegal immigrant ", and from that moment onwards the adjudicator is precluded from inquiring into the matter any further and has to dismiss the appeal. If, on the other hand, it means that it must appear so to the adjudicator, if it is a matter fat the adjudicator's decision, then what he has to do is to examine the evidence and decide if it is proved to his satisfaction. Therefore you might as well have the words"if it is proved"in the first place. Perhaps the noble Lord can explain why these words have been used. I have no doubt he will tell us that they have appeared in some Act of Parliament or some rules before. We have already heard that many times. But if the words are defective, they are made no better by having had an earlier appearance. I beg to move.710
§ LORD WINDLESHAM
As the noble Lord correctly forecast in his penultimate sentence, Clause 13(4) repeats in substance Section 2(2) of the Immigration Appeals Act 1969. The latter provision used the words"appears to him "—that is, to the adjudicator but—it is clear enough from the context, without an express reference to the adjudicator, that that is what is intended here. The verb"to appear"has a more precise legal meaning than may be apparent at first sight. It is commonly used in statutory provisions to indicate the conclusion drawn by a court or tribunal from the evidence before it. It is so used in the 1969 Act and also in the provisions of this Bill. This use of the word does not imply any contrast between appearance and reality, but refers to the conclusion which emerges from the scrutiny given to the facts.
In practice, I doubt whether there is all that much difference between the word"appears"and the words"is proved ". An appellate authority would be expected to form his conclusion from the evidence before him on the balance of probabilities, whichever formula is used, and the substitution of"is proved"would not introduce a stricter standard of proof. In certain circumstances, however, the words"is proved"might not be altogether apt, because they could be read as implying that in every case it will be necessary for the respondent to the appeal to bring forward positive proof that the appellant is an illegal entrant or, as the case may be, subject to a deportation order. Positive proof may not be necessary in some circumstances; for example, if the appellant admits that he is an illegal entrant the appellant's own admission would probably be sufficient to enable the adjudicator to dismiss the appeal on those grounds.
I have listened to the noble Lord, Lord Foot, and although it may be difficult to meet him on the question of proof, I think he put forward a very strong case when he asked the question about"appears to him"and said that he thought it might even mean appears to the immigration officer or to the Secretary of State. That is certainly not intended. OF course what is meant is: if it appears to the adjudicator and he satisfies himself on the evidence that the conclusion he arrived at is a proper one. If that can be made clear in the drafting 711 and would satisfy the noble Lord, it might be possible to adjust the wording, although I cannot commit the draftsman to an exact form of words.
§ VISCOUNT MASSEREENE AND FERRARD
Would it not be clearer if we had the words,"if the appellant at the time in question was an illegal immigrant "?
§ LORD FOOT
I do not know whether anyone else wishes to speak, but I am quite happy to leave this question in the way it has been left by the noble Lord, Lord Windlesham. However, may I ask one question? The noble Lord said at the beginning that the words,"if it appears ", appear in other legislation, but he went on to quote earlier immigration legislation. I wonder whether he can tell us if his advisers have been able to point to any other Statute where this phrase has been used? If so, and there is a precedent for these words and they mean that the tribunal concerned is satisfied on the balance of probabilities and so on, I should be reassured.
§ LORD WINDLESHAM
I cannot answer the noble Lord's question offhand, but it is a very relevant question. I shall make inquiries and write to him with the answers and I shall also see whether we can compose an alternative form of words.
§ Amendment, by leave, withdrawn.
§ 7.44 p.m.
LORD BROCKWAY moved Amendment No. 76A:
Page 15, line 10, leave out subsection (5).
§ The noble Lord said: On a previous occasion in Committee I expressed appreciation of the quite extraordinary way in which the noble Lord, Lord Windlesham, gave his mind and interest to everything we are discussing. I want to add something else now. If before Report stage he has actually to consider every issue which he has promised to consider, he will not only have to be working overtime in the House itself but also outside the House. I welcome his promise to give consideration to so many 712 Amendments and I hope that this Amendment may be added to the list.
§ There are two reasons why I urge that this subsection be deleted. The first is the extraordinary power it again gives to the Secretary of State. It allows him to certify that a person shall not be entitled to appeal against a refusal to allow him to enter this country on the ground that his exclusion is"conducive to the public good ". That is a terribly vague phrase. To give a Minister that power with such a vague phrase, on his personal responsibility, without any reference to an adjudicator or an appeal tribunual, seems to give one man quite extraordinary powers. I ask the Minister to look at this phrase"conducive to the public good"and its vagueness. Is not the phrase"in the interests of national security"more often used when this power is given to the Secretary of State? That at least is rather more definite. Perhaps the Minister will look at this phrase and consider whether the Home Secretary really ought to be given these powers to deny the right of appeal on a ground which appears to be so indefinite. I beg to move.
§ LORD GARDINER
I wonder if, when the Minister replies, he can explain what I am quite sure I ought to know but frankly do not: why in most places in the Bill where"conducive"is included—in Clause 3(5), Clause 13(5), Clause 15(3) and (5)—we just get"conducive to the public good"and in none of those subsections nor in the interpretation clause is there any definition of what"conducive to the public good"means? Then, in Clause 14(3) and there alone we suddenly getconducive to the public good, as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature ".I do not know whether we are supposed to read that into the other places in the Bill where there is not such a full explanation or limitation. When one is considering the other subsections and the meaning of"conducive to the public good"I do not know how far we can rely on what is said in Clause 14(3). Is that intended to be comprehensive? When it says"as being"I suppose it must be one of those three qualifications and nothing else. Does it mean that 713 " conducive to the public good"in the other subsections contemplates something as wide as this? I should be grateful if the noble Lord, Lord Windlesham, could answer that.
§ LORD WINDLESHAM
May I begin by replying to the question put by the noble and learned Lord, Lord Gardiner, while it is fresh in my mind? I think am right in saying that this Amendment is directed to Clause 13(5) and the noble and learned Lord has jumped a little ahead to Clause 14(3); but I think it may be helpful to the Committee to discuss this whole matter now because the words"conducive to the public good"are crucial in both these clauses. The phrase includes security, political considerations and what are called"other non-conducive grounds ". Wherever it is mentioned, as in Clause 13(5), without qualification, it includes all those three. In Clause 14(3), however, it is confined to"interests of national security"or of relations between the United Kingdom and other countries, or for other reasons of a political nature. So Clause 14(3) is limited to security and political cases only and excludes the other non-conducive grounds. Let me give an example of other non-conducive grounds. We have referred in the debate on deportation to the international drug traffickers who manage to avoid criminal convictions, to the gambling racketeers; and my right honourable friend the Home Secretary talked about people connected with the Mafia. These are the sort of people who have been regarded as undesirable in the past; deportation orders or refusals of entry have been made on the ground that their presence would not be conducive to the public good. Clause 14(3) does not apply to them. It is confined only to what it says. In all other places where the words are mentioned without qualification it is the wider use that is intended.
The noble Lord, Lord Brockway, reminded me of something which gives me food for thought from time to time—the number of hostages to fortune collected as the Bill goes on. I hope that I shall be able to redeem most, if not all, of them. The effect of this Part of the Bill will be that the appeals system will continue to operate as at present for the ordinary immigrant and his dependants, but it will be open to the 714 Home Secretary personally, as being consistent with his general responsibility for law and order and security, to exclude from this country people whose presence here he thinks would not be conducive to the public good. The number of such people is small and is likely to continue to be small. But the issue is none the less important. It is as well to appreciate the scale of what we are talking about. In terms of aliens, at the moment we are concerned with something of the order of about a dozen people a year, several of whom so far as deportation is concerned, have been convicted, but in whose cases the courts have decided to leave the matter of deportation or not to the Home Secretary. Sometimes the courts say so in giving judgment.
If this Amendment (and the next Amendment in the name of the noble Lord, Lord Foot, which touches on the same ground) were accepted, it would have the effect that only persons whose exclusion was desirable in the interests of national security—the noble Lord said that he would confine himself to national security—could be excluded without right of appeal. In the view of my right honourable friend, this would not be a desirable change, particularly in regard to two groups of people. First, there are the rare cases in which the Secretary of State thinks it necessary to exclude a person on political grounds. As to these, the Wilson Committee in paragraph 143 of their Report thought that there would be nothing untoward in removing political cases entirely from the ambit of the appeals system. The noble Lord asked, as have others, what is meant by the words"political cases ". I might quote the Wilson Committee Report here. What they said in paragraph 147 was:Cases arise from time to time in which the Home Secretary feels justified in excluding a person from this country, or requiring him to leave, on grounds that are essentially of a political nature—for example, that his presence here is or would be harmful to international relations, or offensive to public opinion. We doubt whether the system of appeal which we are proposing would provide apt machinery for dealing with such cases. We would not therefore think it wrong in principle, or destructive of the general value of the proposed appeal system, to remove such cases from the scope of that system and leave them entirely to the Home Secretary's discretion subject to his responsibility to Parliament.Apart from the political cases of this kind, there are from time to time the 715 cases of people trying to obtain access to the United Kingdom, about whom the Secretary of State has received information, perhaps from overseas police forces or intelligence services, which has been given to him on a confidential basis and which could not be disclosed on appeal. In these cases also, the Government think it right that the Home Secretary, again by his personal decision, should have the power to exclude the individual from the United Kingdom. In ending what I have to say in reply to the noble Lord, Lord Brockway, I would remind him—though he knows it better than most—that when we use the words,"the Home Secretary is responsible to Parliament for the exercise of this discretion ", this is no empty phrase. Home Secretaries have been personally responsible to Parliament for decisions of this kind over a number of years; and the closeness of personal interest, the way in which representations are prepared by Members of another place and of this House, also impose a degree of Parliamentary scrutiny. We saw it earlier this year in one famous case. This showed that Parliament is vigilant in these matters and that the Home Secretary is answerable for his decisions to both Houses of Parliament.
§ LORD FOOT
May I ask a question? I understand that the definition of"conducive to the public good"is wider under Clause 13(5) than under Clause 14(3). Why are different standards adopted depending upon whether it is an appeal against exclusion from the United Kingdom (which is dealt with in Clause 13) or whether it is an appeal against a variation of conditions? Why is a different standard of"conducive to the public good"adopted, a more limited standard, under Clause 14 than in the other case? What is the distinction in principle? It may be that the noble Lord covered the point; but if he did I am afraid that I missed it.
§ LORD WINDLESHAM
My right honourable friend covered it at considerable length. I will abbreviate it. The noble Lord will find an interesting speech in the course of the Standing Committee"B"proceedings in another place on Thursday, May 20, at columns 1116 to 1120. The Home Secretary spoke on his approach to this subject at some considerable length. The case he put 716 up on this question of non-conducive appeals was subsequently supported by Mr. Callaghan. My right honourable friend drew a distinction between people who were already here and those who were seeking to come in. A person already here whose stay is curtailed or who is asked to leave is in a somewhat different position from someone seeking to come in. What my right honourable friend said was this:He has been allowed to stay in this country for two years or some such period. He has changed his plan, moved his family; and if he then does not get what he expected—speaking of an extension of stay—he is prejudiced. If he applies to come and is told that he cannot be admitted, that is too bad. He is not entitled to expect to be allowed in. But if he has been allowed in here he is entitled to expect to be able to stay here for the time for which he was originally admitted…and so on. Therefore, as a result of the discussion in Standing Committee, what my right honourable friend the Home Secretary agreed was that there should be an appeal in the case of the person who is already here, through the normal appeal system in all cases except the security and political ones. In the existing appeals system they are anyway, provided for separately because these are the cases that go to the special panel of the Immigration Appeal Tribunal. The procedure was used only once. The noble Lord, Lord Garner, was a member of that tribunal; and I think that no one who studied what took place on that occasion was particularly happy that the procedure should continue.
What the Home Secretary now has in mind, and he explained it again in Standing Committee, and subsequently on Report, is that for the people who are already here, in everything except security and political cases, the right of appeal should lie through the appeals system; that in the security and political cases, the Home Secretary should remain responsible; but that he should take informal advice from"three wise men ", three security advisers, in the same way as happens when there are cases where the security of a member of the Civil Service is in doubt. I could give further details of this, if the Committee would be interested, but that is the reason. A person outside has less right than a person who is already here.
§ 8.0 p.m.
§ LORD GARNER
The noble Lord, Lord Windlesham, mentioned my interest in this matter and perhaps I may make a few comments, although it is an extremely difficult ground of legal speciality for someone who is a layman to tread. I agree with the Minister that there are unfortunate features about the procedure under which the special panel of the tribunal operates. My first doubt is really a question of public relations. If any part of the case should be heard in camera, it is almost certain that the Press and publicity media in this country will take exception to that course and assume that something not quite right has happened whatever the facts may be. It is important that not only justice be done but that it be seen to be done, and so long as we have this special secret part of the tribunal I think it is bound to cause trouble.
Secondly, there is the position of an appellant. The Wilson Committee recommended that he should be informed of any circumstances brought specially to the notice of the tribunal when sitting in camera: but legislation provides otherwise, that the appellant is not even to be represented at the trial and the part in camera is to be heard in his absence. On the occasion on which I served, the tribunal were charged by the appellant's counsel to scrutinise with the greatest care the evidence offered by the parties, and I think I can say that we did our duty in this respect. But I would comment that it does not seem to me really appropriate that a tribunal should have that sort of function imposed upon it.
The third difficulty is that the Act provides for the report to be published but does not require the Home Secretary necessarily to act upon its recommendations. The duty imposed upon the tribunal is to find in favour of the appellant if they are satisfied that in the exercise of his discretion the Home Secretary should have acted differently. It may be entirely appropriate for a tribunal to reach such an opinion upon the actions of a junior officer acting for the Home Secretary, but I think it is entirely invidious for a tribunal to be called upon to pass judgment on a decision taken by the Home Secretary on a matter of policy, particularly when it is in the field of law 718 and order for which he is responsible. If the tribunal finds against him in a report that is published, one can see that it is difficult for him to be forced to vary the system. As was suggested at the time, it is easy to see why a Home Secretary faced with this position might prefer to resign rather than to yield on a matter to which he attaches importance.
I should like to make just one other comment to the noble Lord, Lord Brockway, about this difficult phrasing of"conducive to the public good"and"in the interests of national security ". I am sure that important legal considerations attach to whatever phrase we use. There is one point that appeals to me. The phrase on national security has a connotation, particularly in the public mind, of something which is a positive danger to the State, which is not made clear by the phrase"conducive to the public good." It strikes me that in a sense it is fairer to an individual, less offensive to him, to use the more general phrase and less likely to be misleading to public opinion as a whole. I accept that there are dangers in the more general phrase. It is much wider and could be abused, if there were to be an unscrupulous Home Secretary, but I would hope that the risk of that is sufficiently remote.
§ 8.5 p.m.
§ LORD BROCKWAY
This is one of those occasions when the reply of the Minister has disturbed me more than it has reassured me. It has disturbed me because he has indicated that the phrase"conducive to the public good"is intended to cover a broader ground than the ground of"in the interests of national security." The noble Lord who has just spoken is perfectly right when he says that"in the interests of national security"can be regarded as more offensive than the phrase"conducive to the public good "; but the very fact that the latter phrase does not appear to be so conducive indicates that it not so definite, that it is vaguer, and it is because of that that I doubt very much whether it should be included in the Bill at all.
I think that we have the right to exclude people from this country where there is evidence that they intend to commit some crime here. I think that we have the right to exclude them when 719 we have evidence that they are to be engaged in violent conspiracy or something of that character. I do not think we have any right whatever to exclude them because they hold a particular political opinion. And my fear is that this vague phrase of"conducive to the public good ", with these private inquiries through the police in different countries and with all the political prejudices that there are at the present time, may be used to keep out of the country and deny to them even the right to appeal against refusal on grounds which are not substantial, people who hold particular political opinions.
May I say to the noble Lord, Lord Garner, that from my own knowledge of the present Home Secretary, I should not expect him to apply this power which the Bill gives him in a way which would be illiberal. At least I would expect him to do that less than many possible Home Secretaries of whom I could think. But when we are passing a Bill of this kind we have to consider the effect of these words not only upon the present occupant of the office of the Secretary of State, but their effect when there are changes in political climate and political personnel. We have to be very careful indeed not to include words which might in effect have a bad result upon the liberties and tolerances of our country. I am withdrawing this Amendment only for one reason, namely, that the same subject will be raised almost immediately on an Amendment in the name of my noble friend Lord Foot, and I am perfectly sure he will put the case much more effectively than could.
§ LORD FOOT
Before the noble Lord withdraws his Amendment, I should explain that I am not going to move my Amendment No. 77, so if he really wants to put the matter to the vote he must seize the opportunity now, because I am afraid he will not: get any assistance from me. Perhaps I should also say to the noble Lord that if he seeks to press this Amendment to a Division I am afraid I shall not be able to go into the Division Lobby with him, because since the next Amendment was put down by my noble friends and myself I have been satisfied that the Government are right about this 720 matter. I agree that this question, as to whether a person should be excluded from this country on the grounds that his entry is not conducive to the public good, is a political decision and an executive decision for which the Secretary of State ought to be answerable to Parliament. I agree that this is not an appropriate matter to be considered by somebody in the nature of an appeal tribunal. The decision has to be made by the Secretary of State, and has to be defended by him in Parliament. Therefore, while I am not trying to ingratiate myself with the Government on this matter, unhappily I am on the other side from the noble Lord.
§ LORD SHEPHERD
I hope that my noble friend will not feel called upon to press this Amendment to a Division. I recognise that he has strong feelings about it, and no doubt, in the eyes of many, a strong case. Equally the noble Lord, Lord Windlesham, has given us a clear exposition, and I should certainly like to look with the greatest of care at what he has said. This is a matter that we can come back to when we consider my noble friend's Amendment No. 79, which is much of the same pattern, and perhaps on the Question, That the clause stand part. I hope that in the circumstances—the Committee is a thin one, and it is a big issue which we ought to have time to consider—my noble friend will make that gesture. Of course, it will be open to him to return to this subject on Report, if he feels so inclined.
§ LORD BROCKWAY
How can a Back-Bencher possibly resist an appeal of that kind, especially when it is added to by the fact that I begin to suspect that something is a little wrong in my attitude if the noble Lord, Lord Foot, is not able to go into the Division Lobby with me, because on these issues of liberty he is one of the most decisive champions. For those two reasons, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13 agreed to.
§ Clause 14 [Appeals against conclusions]:
§ THE DEPUTY CHAIRMAN OF COMMITTEES (LORD AILWYN)
I have 721 to advise your Lordships that if Amendment No. 78 is agreed to I shall not be able to call Amendment No. 79.
LORD FOOT had given Notice of his intention to move Amendment No. 78:
Page 15, line 37, leave out subsection (3).
§ The noble Lord said: I do not intend to move this Amendment, but may I be permitted to say in one sentence why I am not moving it? It is because it goes to the same question of conducive to the public good, which has already been discussed exhaustively to-day.
§ LORD WINDLESHAM
This might be a convenient moment for the House to resume. I beg to move that the House do now resume.
§ Moved. That the House do now resume.—(Lord Windlesham.)
§ On Question, Motion agreed to, and House resumed accordingly.