§ 4 p.m.
§ Lord AVEBURY rose to move, That the Statement of Changes in Immigration Rules, laid before the House on 20th February, be disapproved. The noble Lord said: My Lords, on 11th December last your Lordships considered a Motion to deplore the draft immigration rules as sexually and racially discriminatory, incompatible with our international obligations and contrary to the principles of natural justice. Since then weighty evidence has been published by the Home Affairs Select Committee in another place showing that Britain may well be found 361 guilty in the European Court of violating the European Convention on Human Rights if these rules are allowed to come into effect. The minor changes that have been introduced since your Lordships considered the draft rules do not go to the heart of the matter since the discrimination between men and women remains and the racial discrimination emerges even more blatantly from the revised version.
§ The position is that the Government continue to seek parliamentary approval for proposals, the legality of which has been challenged frequently in debate, as Mr. Anthony Lester pointed out in his memorandum of evidence to the Select Committee on Home Affairs, without allowing either House to know what advice has been given by the Law Officers. I concede that Mr. Lester said that he did not think the Government could be criticised for failing to disclose the advice that they had received from the Attorney-General, hut he did point out that in the absence of any formal constitutional mechanism for testing the proposed measures that any Government might bring forward to ensure that, if they are challenged, they are looked at by some authority to see whether they are compatible with any instrument that they may be alleged to contravene, then Parliament has a special and peculiar responsibility to scrutinise those measures with the utmost care. I suggest, following this line of thinking, that if there is any justification for a House as unrepresentative as we are, then it must he that we can rise above party struggles and uphold certain fundamental principles whenever they are in danger of being violated by Governments of whatever political complexion. I respectfully submit that one of those fundamental principles is the rule of law, both domestic and international.
§ To go immediately to the provisions which are most likely to lead to actions in the European Commission, they are, of course, those relating to husbands and fiancés, which are contained in paragraphs 50 to 54 of the rules. What these now say—in accordance with the undertaking which was given by the right honourable gentleman the Secretary of State in the debate in another place—is that the husband or fiancé may now enter only if certain conditions are satisfied, and if the woman in question is a citizen 362 of the United Kingdom or colonies and was born here, or if one or other of her parents was horn here.
These rules are sexist in that a woman may enter as the wife or fiancée of any man who has settled here, irrespective of his or his parents' citizenship or birthplace, and, as I understand it, the Government do not argue that any difference of treatment exists between men and women or between women of the United Kingdom and of other national origins. So we have a difference in sex, and we have a difference in terms of national origins. But the Government do deny that the rules are racist, although as everybody knows, the men they are actually aiming at are husbands and fiancés from the Indian sub-continent, and the rules are framed in such a way as to apply the restrictions to far more black people than white. Nevertheless, they claim that the differences of treatment to be found in these measures do not amount to discrimination within the meaning of the European Convention, and as the noble Lord, Lord Belstead, put it when we were speaking about this matter on a previous occasion:
We believe that we have strong arguments with which to justify these proposals if they should be challenged ".
§ I think that in passing we should note that the rules would amount to discrimination according to the test of Section I of the Race Relations Act 1976. That Act of course did not apply to immigration, but when the Commission comes to look at this matter it may consider it proper, in addition to applying its own tests, to have regard to the tests that we have ourselves devised for testing discrimination within the boundaries of the United Kingdom, and to ask whether it is a tenable policy to use a completely different set of criteria at the ports of entry. As I have said before, I certainly do not believe that one can discourage racism within the boundaries of the United Kingdom when people can see the Government exempting themselves from the rules which they expect everybody else to observe in regard to the treatment of passengers at the ports of entry.
§ It concerns us that at no stage of the debate —neither in the Select Committee, nor in two debates in another place, nor in one in your Lordships' House—have the Government given so much as a hint as 363 to what are the strong arguments that they intend to deploy before the Commission. From the evidence of Mr. Lester we know that the Commission, unlike the English courts, will be able to take into consideration what is said in Parliament. I am not sure whether they also have a different rule for dealing with an accused person who refuses to go into the witness box, as it were, but I cannot believe that the reticence of the Government in these debates will do them any good when the time comes for them to appear before the Commission. Whatever line they intend to take when—and I say"when ", not"if "—a case comes before the Corn-mission, if they are so lacking in confidence as to be afraid of testing the arguments before your Lordships' House, I submit those arguments cannot be as strong as they claim.
What we do know is that they will have to satisfy the terms of the judgment of the European Court of 23rd July, 1968, mentioned in paragraph 36 of the Home Office memorandum of evidence to the Select Committee, which said:
Article 14 does not forbid every difference of treatment in the exercise of the rights and freedoms recognised "—
but the principle of non-discrimination is volated—
if the distinction has no objective and reasonable justification ".
The legality of any justification has to:
be assessed in relation to the aim and effects of the measure under consideration ",
and if it is established that no reasonable relationship exists
between the means employed and the aims sought to be realised ",
then likewise Article 14 is violated.
First, then, we need to consider what are the aims and effects, both ostensible and actual. The Government have said that they mean to put an end to"primary immigration ", and by that they appear to mean —although the noble Lord, Lord Belstead, never actually defined"primary immigration when he undertook to do so on the previous occasion—immigration by persons who will then have the right to bring others in as their dependants to join them. I shall be grateful if the noble Lord will confirm that that is what is meant, because if that is so, there is no justification whatever for the mean provision which
makes it virtually impossible for anybody to bring elderly parents or grandparents here to join them. They cannot by any stretch of the imagination be regarded as"primary immigrants ". But I think it is worth pointing out that the Tories have sediciously fostered the myth that fiancés and husbands (with whom we are mainly concerned) will somehow bring in hordes of relatives. The Minister, Mr. Timothy Raison, speaking at the Tory Party Conference last year, referred to,
the pattern of immigration that sees in each immigrant who comes here a stepping stone over which other members of his family or village may pass ".
§ May I note here that Mr. David Lane, a former Conservative Member of Parliament, who is now chairman of the Commission for Racial Equality, in speaking of the debate at the Tory Party Conference, said that Disraeli, the advocate of one nation ", would have turned in his grave had he heard some of the speeches made there—speeches which, as noble Lords will realise, the Commission will take into account in deciding what was the motivation of the Government in introducing these measures.
§ However, coming back to the Minister, when he was challenged in another place to give the evidence for the stepping stone process, he referred to a work by Dr. Mohammed Anwar, disingenuously omitting to mention that it related to a period long before the introduction of immigration control. Certainly prior to 1962 it was the custom of Pakistani immigrants who came here—as it was of Italian immigrants to the United States, with whom Dr. Anwar was making a comparison—to bring in friends and relatives from their villages to join them in the places where they settled in the United States or Britain, respectively. But of course that process came to an end in 1962. Yet Mr. Raison, in his speech at the Tory Party Conference, implied that Dr. Anwar was saying that it still continued. When my right honourable friend the Leader of the Liberal Party raised this matter in another place last week, Mr. Raison excused himself by saying that his stepping stone remark was not meant to apply in particular to the husbands and fiances, but to immigration in general. But my right honourable friend was right. What relevance does it have in the present dispute, other than 365 to show that Ministers are concerned apparently to perpetuate, and to give currency to, racist myths about immigration, and not to spell out the truth.
It is in the context of these attitudes that the European Commission will have to evaluate the true aims of the Tory Party and the Government which represents them. They will look at statements made in Parliament, at the party conference and in broadcasts. They will take into account the Prime Minister's notorious"swamping"statement on"World in Action"on 30th January 1978. Because some people have been accused of quoting her inaccurately, I repeat her words exactly. She said that many people were afraid that Britain
might be rather swamped by people with a different culture ".
As was pointed out by Mr. David Ennals in another place, she implicitly endorsed those fears by failing to emphasise that they had no foundation whatever in fact.
The facts are that immigration has declined, and will continue to decline, as the wives and children of those who arrived in past years form a dwindling queue, and there are, of course, very few United Kingdom passport holders left also. There may be exceptional commitments that we should all want to accept, like the 10,000 Vietnamese refugees that the Government recently committed themselves to welcoming, with all-party support. But apart from that, the objective mentioned by the Minister of State in his Daily Telegraph article,
to reduce the numbers coming into this rather crowded island with its relatively high unemployment ",
would have been achieved without any change in the rules. The contribution likely to be made by these changes will be insignificant according to the Government's own figures. The Control of Immigration Statistics for the Fourth Quarter of 1979, published on 6th March, show that the total number of citizens of new Commonwealth countries and Pakistan accepted for settlement in 1979 was 5,900 lower than in 1978, and it was the lowest annual number since 1974; they show that the number of applications for immediate settlement granted in the Indian sub-continent during 1979 was down just over 2,000 compared with the
previous year, and that this is part of a continuing process. It is interesting to note, when you look at the Home Office Statistical Bulletin, that the number of people arriving from the new Commonwealth and Pakistan, or from the Indian sub-continent in particular, are singled out for special mention, and the numbers arriving here from other parts of the world are virtually ignored, thus showing that what people are really interested in and what the Government are seeking to prevent is the immigration of black people into this country and that the motivation of these rules is racist.
§ If we look at the number of fiancés and husbands who are likely to be affected by these proposals, it is utterly trivial, two to three thousand perhaps, or a mere 0.005 per cent. of the total population. If we had really been concerned with numbers and their effect on employment, then obviously we should have done something about other categories of people, such as the so-called working holiday-makers who come here from Australia, of which there are 15,000 to 20,000 a year. At least, if the Government had stuck to their Buns and banned all foreign husbands, their policy would have been merely sexist rather than both sexist and racist, and the reduction in immigration, although still minute, would not have been manifestly incommensurable with the flow of white patrials, working holiday-makers and EEC citizens who are allowed to come and go as they please.
§ The question of objective and rational justification is a difficult one, since, as I have pointed out, the Government have consistently refused to say what their defence will be when cases are brought. They merely reiterate, as the Minister did again in the other place last week, that they have strong arguments with which to justify these proposals when they are challenged. Every effort has been made to extract from the Government what these arguments are, but without success. Mr. Cyril Townsend, Conservative Member for Bexleyheath, asked the Minister whether he agreed that the overwhelming weight of legal opinion was that the Government would lose, while, so far as I am aware, the only authority cited for the opposite view was that of the noble and learned Lord, Lord Rawlinson, who, as Mr. Alex Lyon 367 remarked, is not particularly well-known as an authority on the European Convention.
§ Lord RAWLINSON of EWELL
My Lords, if I may intervene, I should make clear that I think I have appeared more before the European Commission than probably any other member of the English Bar. I appeared in at least two cases in the early 1970s. So, whether anybody accepts my opinion or not, at least I can claim more experience in appearing before the European Commission than anybody else.
§ Lord AVEBURY
My Lords, perhaps the honourable gentleman Mr. Alex Lyon was under-valuing the expertise of the noble and learned Lord on the European Convention. But I think no one would seek to argue that Mr. Anthony Lester is not acknowledged throughout the whole country as the person with the greatest experience of the European Convention; he, of course, gave evidence to the Select Committee in another place, in common with Lord Scarman, Professor Jacobs. I might mention Mr. Peter Archer, also, who spoke in the debate in another place last week, although he did not give evidence to the Select Committee. But there was a discussion in the Select Committee about whether or not they should call other witnesses; if it had been thought that the contribution which might have been made by lawyers such as the noble and learned Lord, Lord Rawlinson, on the other side of the argument, was of significance, then they could have been called, but the Conservative Members of the committee did not seek to do so. If it is said that some of the distinguished lawyers whose names I have mentioned are politically unsympathetic to the Government, then there were Conservatives in the debate last week, such as Mr. Nick Budgeon and Mr. Ivor Stanbrook, who reached the same conclusion, although their deductions from the conclusions were somewhat different from the deductions of those whose names I have mentioned. Those honourable gentlemen suggested that we should withdraw from the convention, having overlooked, I suppose, the provisions of Article 65, that we should still be liable for acts done before our withdrawal became effective, including the passage of these rules.
368 While on the subject of Tory opinion, I think it has to be noted, as it surely will be noted by the Commission, that at least some of them hold views on immigration which are indistinguishable from those of the National Front. The National Front say,"Stop coloured immigration and repatriate the immigrants—creating more than a million jobs which could be filled by British workers ". Mr. Harvey Proctor would agree with that, except perhaps that he would not be so precise about the figures. So would Mr. John Carlisle, Mr. Tony Marlow and Sir Ronald Bell. I believe that the real motivation behind these rules is nothing to do with objectivity or rationality, but is concerned with the attempt to appease opinions like these that we find within the Tory Party, and some of which we may hear this afternoon. In the absence of any other explanation, that is the only possible reason I can imagine for bringing forward these proposals; because why run the risk of being convicted to achieve such miniscule results? The behaviour of the Government is incomprehensible, unless one sees it as a sop to the extreme right, which, however, like all other efforts at appeasement, only means that further demands for restrictions will be made.
There are other criticisms I would like to make if there were the slightest chance of persuading the Government to change their minds. But the rules have to be accepted or rejected as they stand, so it would be pointless to deal with the additional barriers which are now being erected against the entry of elderly parents, children between the ages of 18 and 21, businessmen and self-employed persons and au pair girls, in any detail. They need to be considered at this stage, I think, as evidence of mens rea, since they confirm the racism of the provisions relating to husbands and fiancés. Au pair girls are to be excluded unless they come from European countries, or from Cyprus, Malta or Turkey. One could hardly imagine a more explicitly racist provision than that. Elderly parents are going to have to show that they are without other relatives in their own country to turn to, and where are these elderly parents likely to be coming from? The Indian subcontinent, of course, because, as your Lordships will know, there is still in the cultures of the Indian sub-continent a very 369 strong sense of responsibility towards the elderly, which unfortunately is now lacking in Europe. So this mean little twist to the rules is again directed against people of a particular ethnic origin.
These proposals have been condemned as blasphemous by the right reverend Prelates, including the most reverend Prelate and indeed they described the existing rules as un-Christian and inhuman. The Catholic Commission for Racial Justice has been equally forthright, as have several of the nonconformist churches. Without exception, so far as I am aware, all the organisations representing ethnic minorities, and all those that are concerned with the rights of ethnic minorities, including the Commission for Racial Equality—a body entirely appointed by the Secretary of State—have condemned these rules, and particularly the ones concerned with husbands and fiancés, as racially discriminatory and they have pointed out that by arousing feelings of insecurity among black people they are likely to damage race relations.
But in addition to the arguments on the merits of the case—where the Government are opposed by every single voice of respectable opinion—what these rules propose to do is illegal and for the party of law and order to embark upon such a course of action is a remarkable contradiction of their own policy. It is not good enough for them to say, in setting out to break the law against the advice of the most distinguished lawyers in the land, that they believe that they have strong arguments in their own defence. The State has to be more scrupulously careful than any individual to ensure that its standard of conduct adheres to the highest possible standards of propriety. It must have the certainty of innocence, rather than the cunning of a bright criminal lawyer. In these rules we have deliberate violation of the law by the power appointed to watch over and maintain it. The victims, however, unlike those of the Bourbons in Naples, will ultimately have their remedy in the highest court on the Continent. I do not want to see my country convicted before that tribunal in the full glare of international publicity, and I beg your Lordships this afternoon to save the Government from their folly. I beg to move.
§ Moved, That the Statement of Changes in Immigration Rules, laid before the House on 20th February, be disapproved. —(Lord Arebury.)
§ 4.23 p.m.
§ Baroness BIRK
My Lords, this afternoon we are taking a second bite at this bitter cherry. When we debated it on 11th December the majority of speakers spoke strongly against the draft rules, and of those who spoke—and there were not many—from the Government Benches almost all had some doubts about different aspects. Indeed, at the end the noble Lord, Lord Belstead, replying to the debate at column 1120 of the Official Report said:My right honourable friend the Home Secretary has published this White Paper so that the views of Parliament can be expressed. And your Lordships, who always are fair, have been, again and again in your speeches, good enough to express your appreciation that at least we have gone about matters in that way. My noble friend Lady Elliot of Harwood is quite right that it is the Government's intention that points made in the debate will be carefully considered before new rules are laid before Parliament ".What has happened since then? We see from the changes, that a student's wife and children under 18 will be able to work here. Similarly, wives and children under 18 of business men and self-employed persons, will also be able to work. Writers and artists will no longer be prohibited from working, but restricted to taking employment only with the permission of the Department of Employment. As regards working holidays the two-year limit still remains, but it no longer includes a period as a visitor or a student. It would be very churlish not to welcome these concessions, and I do welcome them. However, I must say at the same time that the main obnoxious body of proposals remains virtually unaltered. Children over 18, but under 21, are still cruelly excluded, and I ask again, how does that conform with the Tory manifesto promise:"To support family life "?
When we look at the changes for elderly parents and grandparents, it is true to say that the standard of living test has been dropped for widowed mothers, fathers who are widowers over the age of 65 and parents travelling together where at least one is over 65. However, they must still be wholly dependent on their 371 relative or son or daughter in this country. They must also not have close relations in their own country who can look after them. The insertion of the word"close"is new since the draft rules were first placed before us. With great respect to the Government, I personally take the view that that does not make the slightest difference because one would assume that a relative who was going to look after somebody would, in any event, be a close relative.
But, supposing the close relative will not or cannot support them? Supposing there is only a daughter in their own country and the son is here, and it is the custom that the son takes responsibility. He is not there to do so; he is here. That can only mean that more and more files full of human misery will pile up on Ministers' desks. We must also remember that life expectancy is generally lower in Asian countries, and seldom are the people as energetically youthful as Members of your Lordships' House who are still bouncing around at over the age of 80 and sometimes 90. So there is not very much joy for the elderly in these changed rules.
As regards husbands and fiancés, it is true to say that the changes make the rules slightly less sexist, but very much more racist. The entry clearance will now be given if one of the wife's parents was born in the United Kingdom. Also, there is scope for discretion if the woman's connection with the United Kingdom is very strong—for example, if she is descended from people in the Crown service overseas. How can we have a provision that is more whiter than white than that one? However, admission is still subject to the criterion that a marriage is not entered into primarily to gain entry to the United Kingdom. That goes far beyond the old rules on a marriage of convenience, which the rules of 1977 were brought in to deal with and have dealt with adequately.
The other criterion is that the parties have not met. If the parties have not met previously, then the man is not eligible for entry. It is interesting that on 20th July 1978 the right honourable William Whitelaw, the present Secretary of State for Home Affairs, wrote to the Secretary 372 General of the Confederation of Indian Organisations. In his letter he said:In my speech at Leicester I made it clear that compassionate exceptions could be made in individual cases for reasons of particular hardship or disadvantage. In reviewing such individual applications for entry on compassionate grounds, a Conservative Government would take into consideration the historic, social and religious dictates of the caste system ".If arranged marriages do not qualify under that, what does? If they do, does it mean that every case has to be looked at for special discretion, when the rules themselves entirely contradict that?
I think that I asked the Minister about this previously (but I was too optimistic—I thought that the case against was so good that the Government would see the light and withdraw these draft rules): how will the immigration officers judge marital motivation? The rules now say that they"will"give entry clearance if these criteria are fulfilled, instead of saying that they"may"do so. What a triumph! This is just semantics. What instructions will they be given? When these people arrive they will probably he very nervous, inarticulate and scared of authority. How will they be able to explain themselves? Will they be given a questionnaire'? Will there be a psychiatrist present to judge whether the marital intention is real? Perhaps the bishops will be asked to help. I am delighted to see that the right reverend Prelate the Bishop of Bradford is speaking again today. He made such an effective maiden speech during our last debate on this matter.
Let us consider women's rights. Women in the EEC countries will still be able to marry who they like and settle in the United Kingdom, while English women will be put in this impossible, inequitable and completely undignified position. I am delighted that my noble friend Lady Lockwood is to speak later in our debate as she will no doubt expand on the question of women. Like the noble Lord, Lord Avebury, I am quite satisfied that we shall be in contravention of the European Convention on Human Rights; the report of the Home Affairs Sub-committee, after some of the paragraphs had been excised on party political grounds reached no conclusion, which certainly made it rather a wet ending to a very good report; its message seems to be that the risk which we 373 stand if we carry this through would be enormous. Is it the Government's idea that we take action now and offend—and perhaps suffer later—or leave it to the next Labour Government to have to deal with this at the European Court? What political irresponsibility! My noble and learned friend Lord Gardiner, who is speaking later in the debate, will, I am sure, have very much more to say on this matter.
We have been told that one of the problems—certainly so far as women are concerned—is that we need a new nationality law. That is absoultely true. But it is rather interesting that a Conservative study group has this month published a small booklet entitled, Who Do We Think We Are? It is an inquiry into British nationality law by a Conservative study group under the chairmanship of Mr. Edward Gardner. Right at the end of the pamphlet, under"Other Questions ", there is a series of questions. One of the points made is:Other fundamental questions to be considered include: should a man who marries a citizen of the UK be given the right to acquire his wife's nationality?I should have thought that with all the discussions on this and the debates that have taken place in the other place and in this House, a study group going into this matter at this moment would perhaps have something more to say about this rather than putting it right at the end among"Other Questions ". The whole thing is so shabby and shameful that it makes me feel extremely ashamed.
This country's economic situation, certainly at the moment, is very bad; we are aware that our productivity is low; we are aware that there is a long haul ahead of us —not that it seems to be hauling very right under this Government; but I shall not embark on another debate. In spite of high prices, inflation and the weather, when people come to this country we still hear them say,"What we like about Britain is your way of life, your compassion and your whole attitude to people ". Here we are, doing all we can to undermine that goodwill which is so precious to us and which, in my opinion, is part of the British way of life. And for what? The wave of primary immigration has passed. This has certainly been recognised by some Members in another place.
On 10th March in a debate on these rules 374 in another place, at column 1013, Mr. Nick Budgen, Member of Parliament, said:As the Tory Party's promise was that there would be a clear end to immigration as we have known it, and as the measures that we are considering will reduce immigration by only about 3,000 or 4,000 at the most, they can be only the first of many very important restrictions …".At column 1049 in the same debate Mr. Harvey Proctor, Member of Parliament, said:Simply stopping the immigrant flow will not now, regrettably, be sufficient …".What does that add up to? It means that the next step will be repatriation. That is the slimy slope to which many people in this country are being encouraged to look forward. How destructive all this is to race relations. It is this with which we should be concerning ourselves—not this nasty, shabby, sordid little measure that is before us today.
I believe that the Government must be quite insanely masochistic to be doing this. It is economically crazy. How would we continue to run our hospitals or our transport without immigrants? It is socially so distasteful that one wonders how the Government can sustain such a weak proposition. Obviously, it is only to appease and placate their own extremists. As the noble Baroness, Lady Seear, said in the last debate, where would these people go anyhow? They are certainly unlikely to vote Labour. The National Front is not a solid enough party for them. So when the crunch comes they will vote Conservative just the same. The Conservative Members of Parliament who take this view will still want to hold their seats, so the Government do not have to buy them off with this. It is absolutely beyond contempt.
On 6th March, The Times in a leader, after questioning the Government's objective, said:The numbers affected would be in the region of one or two thousand a year, and this would decline as more and more women of Asian origin were born in this country. Is it really necessary for the British Government to show itself to be in deliberate breach of its moral and legal international undertakings for such a puny result?That was The Times, not the Daily Mirror. I do not think that I could put it any better. Seldom has something so small been undertaken and in its undertaking cause so much trouble and so much heartache.
375 My noble friends and I will be joining the Liberals in the Division Lobby to try to get these rules overturned. I hope that others from the Government and Cross-Benches will join us to show, as we did last Thursday, that when some things are more important to this country than the Conservative Party's unhappy efforts to placate some of its more wretched supporters, the House of Lords in its collective wisdom and compassion will tell them unmistakably to take these nasty rules away.
§ 4.37 p.m.
The Lord Bishop of BRADFORD
My Lords, first, I must apologies as, according to how long this debate lasts, it is possible that I may have to leave before the end, for I must be in my diocese early tomorrow morning. I do not propose to say anything about the effect of these rules on the law. I know little about the law and I have always been taught that it precedes the Gospel anyhow. Last time I spoke of the good community relations which exist in my see city. I then stated my conviction that good race relations can be maintained and fostered only by person-to-person relationships between people of different races, and that the judgment of people in close personal contact with those of other races is the judgment that can best assess the overall benefit or the overall damage of any particular legislation.
The points that I want to make spring from the judgments of just such people. I want to make only two comments on the rules—two comments as they affect the Asians, so many of whom live in my see city. With regard to the restriction on the entry of male fiancés, there are two relevant facts. The first is that increasingly young Asian women are marrying men who are already in this country. That begins to make this rule increasingly superfluous, since it is estimated the cases amount to only a very few in number in any given year.
The second fact is that some of the young Asian women themselves are unhappy, and more are growing unhappy, about arranged marriages with men whom they have never met. But it is indeed questionable whether the Asian community as a whole would welcome the 376 ending of this custom if the ending is imposed in effect by law, and whether freedom of marriage choice had not better evolve naturally within the culture with the help of education but without the exacerbation of instrusive legislation.
With regard to restriction of entry of elderly relatives, as has already been said, many Asian families regard responsibility for elderly relatives with a conscientiousness that puts our Western tendencies to shame, But among the Asians there is a pattern which lays responsibility for elderly relatives on the male descendants; and when, in a particular case, the male descendants all now live in Britain, it is totally unrealistic to suppose that the elderly relative can be supported by a female descendant still living in Asia. That female descendant, or those female descendants, will already be responsible with her husband for her parents in law. That is the pattern of the culture. This restrictive rule seems to have been framed in ignorance of the reality of the whole family culture of the Indian sub-continent.
We should be thinking today not of the small dissections of an imposed rule of law but of the much larger issue of happy race relations, and about this I want to make two points. During the last war, when I was a chaplain in the Royal Navy, I found that when we were overseas men came to church with far more regularity than they had done when I had been with them in this country. It was not that my conduct of myself had persuaded them to be far more devout, far from it; they came to church because the existence of a church building, or something passing as a church building, reminded them of home.
A rather similar thing happens with Asians who come to this country. They need the prop of familiar customs; and these changes in the rules, small as they may be, seem to them to be an attack on their religion and on their culture. We shall not make for a happy society if we impose niggling rules which cut at these props; rules which are at best a sledgehammer to crack a very few bad nuts or, at worst, an unworthy alignment with dangerous elements of racial prejudice.
The Minister of State in the Home Office is reported to have stated in another place that in the interests of good community relations the Government must, in the 377 face of persistent fears about the level of immigration, close the loopholes. It is not very clear what the loopholes are, but this persistent fear to which the Minister refers are, in my experience, to be found either in the wealthier suburbs of the towns where there is a high immigrant population, or in the decaying inner cities. If good community relations arc to be developed it will be more profitable to concentrate forces on arresting the decay of inner cities, and in the suburbs to concentrate on promoting a better understanding of the situation as it really is, rather than to pander to prejudice horn of fear and based on ignorance.
§ 4.44 p.m.
My Lords, unlike earlier speakers I would question whether paragraphs 50 to 54 are strict enough, and whether such regulations can be properly enforced to prevent abuses of the custom of arranged marriages. Before I go into detail I should perhaps say that have no objection whatever to the custom of arranged marriages. It is the abuse of the custom to enable people to gain admission to this country which concerns me.
My attention was drawn to the problem by a report in the Press at the end of last year. This was a report of a suicide case which had come before the West London coroner and concerned an Asian girl. The report indicated that the coroner had experienced 15 such suicides, and was deeply concerned about the problem of such abuses. I got in touch with the coroner, Dr. Burton, who is one of 180 coroners in England and Wales. He did not confirm that he had had experience of 15 cases, but he did confirm that he had dealt with a considerable number and that he was very concerned. He supplied me with details of several such cases.
As many of your Lordships will know, in a normal arranged marriage the parents of the girl pay a considerable sum of money as a dowry to the young man of the parents' choice who is prepared to marry the girl. This custom has prevailed for many generations. However, the custom now lends itself to abuse because of the large number of young Asian men living in the Indian subcontinent who want to come to this country, sometimes with dependants. They 378 are prevented from doing so at the moment by the immigration rules, as single men. Marriage, or its prospect, is the easy way round the regulations.
Some of these men come from small villages in India. They are not accustomed to Western ideas, nor do they speak our language. However, they are prepared to forego the dowry if they can gain entry into this country as a husband or fiancé of an Asian girl living here. The Asian girl may well have been born in England, been to school in England, made many English friends, and acquired many Western ideas, particularly those concerning the idea of the freedom to choose one's own marriage partner. Such a girl may well feel that suicide is preferable to a forced marriage to the man from the small Indian village, particularly if she has had an English boy friend in the past. Think of the misery caused to some of these girls even if they refrain from suicide.
It seems to me that an entry clearance official has an almost impossible task if he is to comply with paragraphs 50 and 52, and proper investigation might take many months. I further suggest that such an immigrant is only too often lost after a few weeks in this country. According to the statement, entry clearance will be refused if the officer has reason to believe:I submit that it may be possible to check whether the parties have met. However, the object of the marriage, and the intentions of both parties, must surely be a matter of opinion, or even guesswork.
- "(a)that the marriage entered into primarily to obtain admission to the United Kingdom; or
- (b)that one of the parties no longer has any intention of living permanently with the other as his or her spouse; or
- (c)that the parties to the marriage have no t met ".
I appreciate that nothing that I have said may be considered constructive, but I hope that I may have drawn attention to the dangers run by some Asian girls who have lived in this country since birth, but have unscrupulous parents who are prepared to sell their daughters rather than buy them suitable husbands. I urge the Government to make further efforts to exclude such immigrants and, above all, to provide better facilities to 379 help young girls who find themselves in such a predicament. As Dr. Burton writes:You only have to see one lonely girl hanging to be converted to the view that there should be someone to whom she could have turned for help.
§ 4.50 p.m.
§ Baroness LOCKWOOD
My Lords, I support the Motion standing in the name of the noble Lord, Lord Avebury. When this issue was debated some months ago, I concentrated on the sex discriminatory aspects of the matter, and 1 shall do so again today. First, however, I wish to make it clear that I welcome the changes that have been made since that debate, in particular those which now give some rights to British women in relation to bringing their husbands and fiancés into this country. These changes will remove much of the uncertianty and anxiety that many women had, and I am glad that the Government noted the strong feeling of women in Britain and were sensitive to their views.
However, I wish to make it clear that the changes do not go far enough. They still place a barrier against women having the right to bring their husbands and fiancés into the country, which is not applied to British men. Under these rules we shall still have a sex discriminatory system, and what we are now discussing, when we look at the rules, is how much sex discrimination against women can be tolerated. It is the level of toleration, not the principle of sex discrimination, that the Government have turned their mind to, and this is a matter of deep regret.
The lobby of white women born abroad who would have been caught by the draft rules which we were considering earlier evoked a great deal of sympathy and managed to establish a powerful lobby—and with every just cause. The women who will now be caught by the amended rules do not command such a powerful lobby. They are fewer in number, and consequently the lobby will be smaller; and I regret to say that they are of lesser influence because, as noble Lords have indicated, by and large they belong to the Asian community—a minority community—in our midst. Asian women, whose male peers can go to the 380 Indian sub-continent for a bride, will be doubly discriminated against.
I sympathise with the noble Earl, Lord Fortescue, in what he said about the predicament of Asian girls here who find themselves victims of their own cultural background, but I suggest that the way to deal with this is not by imposing discriminatory rules of this kind. I should far rather follow the line advocated by the right reverend Prelate the Bishop of Bradford to allow marriages freely to develop within the context of the British system and our community as it exists. I do not think that we can impose our culture on anyone. but those who have come to live in our midst will, I believe. gradually absorb our culture, and it is for us to create the right circumstances for them to do that.
My second point concerns what is equally a matter of regret. It is that the anomalies between men and women in regard to short and limited periods of entry to the United Kingdom have not been eliminated. I cite, for example, the treatment of working people from abroad, such as exchange teachers, journalists, writers and self-employed businessmen. These people, if they are males. will have the right to bring their wives into the country in order to accompany them, but if they are females, they will not have the same right to bring their husbands with them. Surely the criterion here should not be whether it is a husband or wife; it should be the spouse of the person who is given entry in that way. These people constitute only a small number of those who will he coming into the country. They will not make any significant difference to the numbers of those residing temporarily in this country, but there will be a great deal of difference in terms of individual happiness.
I would wish to mention a very sad case, which came to my attention only a week or so ago, of a Chinese woman now resident—or should I say was resident?— in Hong Kong with her husband and family. She is working for the BBC and has been transferred to this country as an employee of the BBC. But because she is a woman, she has no right to bring her husband and young children with her. Surely anomalies of that kind are not justified under any circumstances, and I very much regret that the Home Secretary has not felt able to deal with the issue.
381 On the question of au pairs, the right to come here as an au pair is restricted to unmarried girls aged between 17 and 27. I imagine there would be very few young men who would want to come in the capacity of an au pair. But there is in this country a considerable number of single-parent families headed by men, and limiting the au pair facilities to girls only could mean that single-parent families headed by men would be prevented from having the assistance of an au pair. Indeed, I believe that the rules of the Home Office prevent a single-parent family headed by a man from having a girl as an au pair, and many people will sympathise with that; but by restricting the entry to girls and women, we are preventing young men from being able to provide a service in this way.
The third point to which I draw the attention of the House is the difference in the treatment of dependants. Again, we have the instance of an unmarried daughter who is dependant on her family being able to come into the country if she is between 18 and 21 years old, yet a young man, though he might be an integral part of the family—dependent on the family—cannot have the same facilities. Likewise, when we are thinking in terms of widowed mothers and widowered fathers, we find that a genuinely dependent widowed mother can enter the country, but a genuinely dependent widowered father has to pass an age barrier; he must be 65 or over before he can be granted entry.
Again, I would suggest that really, what we ought to he talking about in this respect is the question of dependency. If there is a real dependant, and a dependent need, then that is what we should be meeting, irrespective of age. Therefore, again I regret that the Government have not found it possible to remove the sex-discriminatory elements, which bear very harshly on some families.
Finally, I come back to the basic issue in this sphere, which is the issue of rights—the rights of individuals; not separate rights for men, and different facilities for women, but the rights of invididual citizens of this country. That brings us, of course, to the whole question of nationality. While I would hope that many noble Lords and Baronesses will follow the lead of the noble Lord, Lord Avebury, today, I fear that these rules may be sustained, and that we shall be 382 left, therefore, with the option of looking forward to a new nationality law. The Home Secretary has promised us a White Paper this summer, but I see that the debate has already begun. As the noble Baroness has indicated, a report entitled Who do we think we are? has been published and this is probably the beginning of the debate that we are going to have during this coming year. I regret to see no hope in that report because, again as the noble Baroness, Lady Birk, has said, there is no question at all of looking at this difficult issue of equality between the sexes.
I hope that the Home Secretary, in preparing the White Paper, will take note of the strong feelings that there are on this issue in the country. I hope that it will not be long before we have the White Paper as well as a new nationality law which could remove some of the anomalies and effects of these rules, which because of their discriminatory nature will I believe bear very harshly on some of our citizens.
§ 5.3 p.m.
§ Lord BARNBY
My Lords, I will not attempt to follow the noble Baroness's eloquent and passionate defence of what inevitably arise from any legislation—those difficult cases to which we have all given our attention at different times—because the Motion before us refers particularly to rules, and not to legislation. We all admire the consistent defence of the noble Lord, Lord Avebury, the mover of this Motion, who is always quick to jump to the support of any case which he considers is entitled to compassion.
My Lords, this particular Motion is similar to a Motion moved in another place on, I think, 10th March, and follows much the same aim in dealing with the rules. I personally feel that many of the details of the rules, which we have all familiarised ourselves with, do not assist the feeling which many have that, on the question of immigration, we should keep our eyes on the main point, which is volume of entry; and that while, from the figures which are obtainable, the movement is, as Lord Avebury said, downwards—there is a decline—it is not sufficiently downwards. Like many other noble Lords, 1 have read the report of the debate which took place in another place 383 on 10th March, and have noted all that was said. I personally think that all the attention there was concentrated, as it may well be here by all the other speakers, on details, on matters of relatively small stature in comparison with the very widespread feeling there is in the country that we already have enough non-white immigrants in this country.
In saying that, I am reminded that during the debate which took place in your Lordships' House in, I think it was, the early part of December last year (in which, through absence, I was not able to take part) the feeling was not very emphatic on the main question of reducing entry into this country, whereas there are those in the country who feel as I do, that the Prime Minister was right in emphasising that there is a large volume of opinion which is much concerned about the size of the inflow. I suppose it is about 20 to 25 years ago that we discussed the bulk entry of Asians from Uganda. Many views were expressed as to the rights or wrongs of that, but from that debate I have a vivid recollection that the feeling of the House at that time was quite in favour of a generous inflow of Asians. Many have felt differently since.
My Lords, I must ask your Lordships' indulgence. I was brought up in the Victorian era, and I believe that in the last decade of the century the Members of this House would have taken a very different view of this inflow of people from that which is so widely taken today. Because I was brought up then, I had a passionate desire for the purity of the British race, and I regret that there has been this inflow, this volume. I recognise that in (was it?) the 15th century the inflow of Jews into this country brought great advantage to us, as did the inflow of French Huguenots. But I doubt whether comparable advantages were brought in by negroes and many Asians.
The right reverend Prelate, who made a speech so greatly admired;in the debate in December, spoke briefly about the question of education. I do not suppose there are many of us who have given much thought to it, but there is the position of teachers in schools which have to deal with classes where you have immigrants who can hardly speak English, to the great disadvantage to the children of our own race who are 384 affected. I do not propose to say anything about the equity of the question of human rights, on which the noble Lord, Lord Avebury, in moving this Motion, put great emphasis. There are other speakers—ex-Chancellors, and eminent legal minds—on this side of the House. I am speaking rather more widely than the Motion demands, but the noble Baroness, Lady Birk, in her speech went some way in that direction and I follow her lead.
I would add two points with regard to the large inflow of population. Its supporters aim for complete integration with the British race; and I suppose that that means sexual integration, too. They will understand my anxiety about the purity the race, as will any one of us who has witnessed the miscegenation in the West Indies where an apparently perfectly white girl can marry a white man and have a black baby. Think of the sadness of that We do not want to encourage in this country the possibility of such miscegenation, such a reduction of the purity of our race.
In his speech in December, the noble Lord who is to reply reported on the matter of the repatriation fund. I do not know what volume was contemplated; but it was only a of very small order. While many of these cases of hardship move us to compassion, they conflict with the principle that we do not want a further large inflow of non-British people into the country. Surely, the fund could be used more generously for a great number of (shall I say?) residents of the West Indies who would be happy to go back, who would want to go back and who, I believe, do not have the means of getting back. However, it must be on a voluntary basis and not by compulsion.
My Lords, I have taken part in the debate because I wanted particularly to urge that although many hardship cases are admittedly the object of our compassion, that compassion is in conflict with the general principle that we are not enthusiastic about any further inflow of non-whites into this country. Certainly, I hope that those noble Lords who go into the Division Lobby tonight will have no hesitation in supporting me in opposing the Motion of the noble Lord, Lord Avebury.
§ 5.13 p.m.
§ Lord GARDINER
My Lords, I do not tonight propose to address your Lordships on any question of morals. I, myself, am not a racialist; I do not believe in discrimination on grounds of race or sex; and at my age I do not think I am justified in taking up much of your Lordships' time except on questions of law. The first thing I want to say is that in my opinion a number of these rules are contrary to the terms of the European Convention on Human Rights. I do not propose to take up time with arguing that case because it has been argued very fully. I have re-read the case put forward by the noble and learned Lord, Lord Scarman, in the discussion that we had on 11th December. I have read the oral evidence that he gave the Home Affairs Committee of another place and which is now published in their report; and the written and oral evidence of Mr. Anthony Lester and Professor Jacobs and others in another place. They all put forward their detailed reasons.
The first point I want to make is how extraordinary it is that this case has never been answered. The grounds have been put forward in great detail. The first point that Mr. Lester made—and, subject to the noble and learned Lord, Lord Rawlinson, Mr. Lester has by far the biggest experience of both the Commission and the Court of any member of the English Bar—was this:I should like to begin by emphasising the peculiar responsibility of Parliament in this matter. During the debate in the House of Commons on the proposed new Rules, on 4 December 1979, several Members of Parliament, including the former Home Secretary and the former Attorney General, requested that the House should be advised by a Law Officer of the Crown as to whether the proposals are in conformity with or in breach of the Convention. However, at no stage during the debates in the Commons or the Lords have the Government complied with these requests, whether by authorising a Law Officer to express his opinion or by explaining the views of the Government on this important question. In both Houses the Government's representatives have stated their belief that they have strong arguments with which to justify their proposals if they should be challenged under the Convention; but they have not disclosed the nature of those arguments, nor have they indicated whether they consider that such arguments would be likely to succeed in proceedings before the European Commission … or the European Court …The present position, therefore, is that Parliamentary approval has been sought for proposals whose legality on the international 386 plane has been frequently challenged in debate, without the benefit of any advice from the Government as to whether those proposals are compatible with the obligations imposed by the Convention. I do not think that criticism can fairly be made of the Government for failing to disclose to Parliament any advice which has been given on the subject by the Attorney General. What is lacking is any public authority from whom Parliament can obtain advice or a decision as to whether a measure introduced by the Government is in accordance with the rights and freedoms guaranteed by the Convention. Parliament is in a worse position in this respect than the legislatures of some other democratic countriesHe then goes on to explain the basis for that statement.
In this House, we have the great advantage that a Member of this House is the noble and learned Lord the Lord Chancellor. I, myself, had hoped that we might have ascertained his views on this subject today. I do not know now whether my noble and learned friend Lord Elwyn-Jones is proposing to take part in this debate or not.
§ Lord ELWYN-JONES
My Lords, I am afraid that I have another appointment elsewhere; but we will see how the time goes.
§ Lord GARDINER
My Lords, my noble and learned friend had been good enough to say that he had to keep a longstanding appointment but had authorised me to say that he agrees with what I have so far said. Since 1964, which is a long time ago, we have had only three Lord Chancellors. It would be interesting to know whether all three held exactly the same view. I do not wish this to be regarded as any criticism of the noble and learned Lord the Lord Chancellor for not being here. I quite understand that this is not Lord Chancellor's business; that it is Home Office business. I am only saying that if his colleagues had asked him to answer some of these arguments then I am sure that he would have been happy to do so; and, naturally, it would have been interesting to know tonight whether all three Lord Chancellors are in complete agreement that some, at least, of these rules contravene the convention. We have the great advantage that we are going to hear the views of the noble and learned Lord, Lord Rawlinson. Whether he will be speaking for the Government, as such, I do not know.
387 My Lords, perhaps I ought to disclose an interest; although it is a very technical one. I am a governor of the British Institute of Human Rights and, naturally, therefore, I am interested in human rights and in the rule of law. I am quite certain that the noble and learned Lord the Lord Chancellor is just as interested in the rule of law as I am and that he would have said—and I hope that the noble and learned Lord, Lord Rawlinson, will agree—that to anybody who believes in the rule of law it means that, if your country is a party to an international treaty, you are under a moral obligation to carry out its provisions.
This is a position which does not depend on whether individuals have rights to go to a commission or a court at Strasbourg at all. If there were no such provisions about going to Strasbourg, no provision and no court, the rule of law would equally require us, having entered into an international treaty, to carry out its provisions. Therefore we are in a somewhat unhappy position today, in that fairly reputable legal authorities have joined in agreement that a number of these rules are contrary to that treaty into which we have entered, and that we have been unable to extract from anybody any arguments to the contrary.
The last thing I want to say is this: a lot of the difficulty in this whole field comes from the fact that when we gave up having an absolute monarchy and we decided to have a conventional monarchy, a great many of the remaining absolute powers of the monarch, instead of being transferred to Parliament, were transferred to the Home Office. In the days when we had capital punishment, the royal power of pardon to decide whether one was to be hanged or not was entirely at the discretion of the Home Secretary.
In most Western European countries those who are in prison have certain rights and certain obligations. It is almost only in England that the only right a prisoner has is the right to some food. Everything else is in Home Office rules, Home Office standing orders and Home Office advisory circulars. One of the first cases in which we were in trouble about the European Convention was about a prisoner who was not allowed to write to a solicitor—the Golder case—to ask for his 388 legal advice about an action which the prisoner wanted to bring.
In many fields this is the position that the Home Office are in. There is a case now which is on its way to the Commission which is absolutely unanswerable under the convention. I shall be interested to know whether the noble and learned Lord, Lord Rawlinson of Ewell, does not agree with me. The Home Office, I feel, must know this. There was a West German case called the Haas case. The convention provides in effect for a right of privacy for the family, its home and correspondence, which includes telephonic correspondence. So, prima facie, to"bug"somebody's telephone is against the provisions of the convention. But in its usual, sensible way, the convention goes on to provide for exceptions.
What I should like to say is a matter of history which I have not checked. I have always understood that although we say it is difficult to read the convention because it is one of these Continental draftings, a great deal of the drafting, I have always understood, was done by Lord Kilmuir. It always seems to me that a sensible form of drafting is to set out the principles and then the exceptions. Any party to the convention can make a law whereby, on grounds of national security, public order or the prevention of crime, telephones can be"bugged ".
In West Germany they have made such a law but they have not carried out the provisions of their own law. It is difficult with us in that we have no law in this field at all. We have only Home Office discretion. It is done in accordance with the Birkett Committee who could not themselves make law. We have laws which to some extent—and we do not know quite what they are at the present time—allow telephones to be"bugged"by the security forces. That may be right and proper. However, as we have no law on the subject at all, we could not even get started by defending it under the terms of the convention. The same basic position on immigration is the same. Parliament has no control over immigration at all. I remember in the last Immigration Act, the 1971 Act, some of us put down amendments to try to provide that the rules under which people were or were not allowed to come into this country had to be approved by Parliament and would not be effective 389 unless they were. But what is the position today? We get this piece of paper with changes made in the immigration rules. They came into force on 1st March, without any consent from Parliament at all. The noble Lord, Lord Avebury, now moves this Motion disapproving of them.
If this is carried tonight by an enormous majority, what will happen? Nothing at all, my Lords. The rules will remain in force and will go on remaining in force tomorrow and forever after unless the Home Secretary does what he is not obliged to do—he may do so—and comes along with an amended 'set of rules to replace them. Otherwise, they will remain in force. The whole trouble throughout our immigration policy has always been that instead of Parliament being able to make up its mind what it thinks our immigration laws ought to be, it is all a matter for Home Office discretion; and so we are in the position that the only thing we can do —though it will be ineffective in law—is to mark our view by voting for the Motion.
§ 5.27 p.m.
§ Lord RAWLINSON of EWELL
My Lords, for the avoidance of doubt—and I think that it can be a doubt only in the mind of the noble and learned Lord, Lord Gardiner—I am speaking from my place in the very corner of the House. and certainly from no other position. I am not speaking as a Member of the Government, to which I do not belong. I am speaking merely as a Member of your Lordships' House who practices at the Bar. I want to make it quite clear to the noble and learned Lord that what I have to say are my own reflections, since I presume that his words were his own reflections which he has just so gracefully given to the House.
Before I turn to the matter which interests me regarding the European Commission of Human Rights, I should like to say one or two general things. We in this House can talk and they in the other place can talk—they perhaps with more vigour, but we perhaps with more grace. But it is the Government who ultimately have the responsibility over the control of immigration; and it is a control of immigration, a matter of concern and anxiety to a great many reasonable people. Nothing annoys 390 people more than the superior tones which are sometimes used in lecturing them as to how they ought to react to the situation in which they find themselves as reasonable people in the country in which they live. This is certainly no reflection upon the right reverend Prelate (who has just left the Chamber) who also made an excellent speech. However, a"holier than thou"attitude and tone does more harm than almost anything else to race relations.
There are reasonable people in this country who feel that they have been impotent spectators of great changes in the homogeneous nature of British society —changes which I do not believe they have particularly welcomed, but changes which, allowing for the good sense and toleration of British people, they are prepared to accept. I think people generally accept that in this country we live in a multiracial society.
However, what those reasonable people expect is that the Government should end persistent fears and relieve tensions by eliminating many of the constantly activated forms of evasion of immigration control. This is what people expect, and this is what they demand their Government should do. It is reasonable that they should do this. Therefore it is the duty of the Government to close loopholes when rules which have been accepted by Parliament appear to be being evaded. It is right for the Government to close those loopholes, and constant changes are necessary because of the absence of a proper British nationality Act.
According to the Minister of State in another place, whose speech I read, the principal means of primary male immigration has become marriage rather than employment. If that is so, and if it is the intention to stop at this stage—and most people accept that it is—primary immigration, therefore they are doing right to take action to control that and to restore confidence that the rules are being obeyed, especially, as the Minister declared thatmarriage is still being used as a means of securing immigration ".Any reasonable person, if that is so, would say that this is a racket and an evasion: it ought to be stopped. It is really difficult to accept, is it not, that the fiancé of a woman whom he has never 391 met can reasonably claim that he has got a right to enter another country to live permanently with her there? To a reasonable person, that surely is something which is very difficult to accept. These rules it is proposed to bring in, as I understand it, do not make this country exceptional. There are restrictions on husbands and fiancés not brought in this country solely by means of these rules but in West Germany, France, Sweden, Switzerland, Bangladesh and India. So the United Kingdom is not an exception. Are we not entitled to bring in such restrictions?
I turn now to the claim that these proposals are a breach of the European Convention on Human Rights. I should like to make it perfectly clear that these are entirely my own reflections and comments. I have given no advice to the Government or consulted with anyone within the Government. I must confess, with the greatest respect to those people whom I have heard, I was surprised at the enormous confidence they have in their own judgment. I would say to my noble and learned friend Lord Gardiner (if I may so call him, because we were in Chambers together and he is a person for whom I feel the greatest respect) that have never heard him before speaking with such enormous confidence as to what he says would be in effect the result of future litigation. He was certainly much more careful, and rightly if I may say so, when he practised in such a distinguished way at the Bar.
I heard the noble and learned Lord, Lord Scarman, a Lord of Appeal in Ordinary, in the debate in this House, and I read the proceedings of the sub-committee. That sub-committee, though it may sound very grand, had four Members present from the other place: one was Mr. Alex Lyon, the chairman, and there were three others. That was this great subcommittee! I do not know whether your Lordships have read the report, but there was not much cross-examination—not what I would call cross-examination—because they all agreed even before there was any questioning of the witness. But I did note that the noble and learned Lord, Lord Scarman, was not so didactic or so emphatic in his opinion.
§ Lord ELWYN-JONES
My Lords, is the noble Lord right about that? There were 10 Members on the committee and they divided on party lines on every issue that was relevant. When the report came to be prepared, the committee, by the casting vote of the chairman, exercised and excluded the conclusion of the noble and learned Lord, Lord Scarman, that what was proposed was clearly contrary to the European Commission.
§ Lord RAWLINSON of EWELL
No, my Lords; I am dealing with the actual appearance of the noble and learned Lord, Lord Scarman, before the subcommittee when there were present: Mr. Alex Lyon in the chair, Mr. John Hunt, Mr. John Wheeler and Miss Jo Richardson. They were present when he gave his evidence. All I am saying is that there was no cut-and-thrust of cross-examination, and it might perhaps have been helpful if there had been. All I say is that I do not believe that the noble and learned Lord, Lord Scarman, in his evidence was so certain and so emphatic as to what he felt must inevitably be the result of some hypothetical case which may on some future occasion be brought before the Commission. I also wonder——
§ Lord AVEBURY
My Lords, may I just ask the noble Lord this: were not two Conservative Members, Mr. John Hunt and Mr. Wheeler, completely ill agreement with the tenor of the remarks of the noble and learned Lord, Lord Scarman?
§ Lord RAWLINSON of EWELL
Exactly, my Lords; that is so. That gives emphasis to what I have said—there was no cross-examination and one would think, of course, that it would have been most advantageous if there had been. With regard to what the noble and learned Lord, Lord Scarman, said about an pairs—he called it"a nasty little provision "—I do not know whether he overlooked that in fact it seems to be the same provision as exists in respect of resident domestics. At any rate, that was his view.
What arguments would be open to the Government? I throw out these thoughts purely as my own. First, it must all depend on the circumstances of any particular case. Again, I am a little surprised that eminent noble and learned 393 Lords should have appeared to be so certain in regard to hypothetical cases. If all the facts fit all their proposals, then it may be that they could be so certain and so definite; but I think I was perhaps a little too vainglorious when I interrupted the noble Lord, Lord Avebury, saying that I had more experience of the European Commission than any other member of the English Bar. I would, if I may, withdraw that, but I have had considerable experience: more than most. Obviously, since those days in the 1970s other members of the English Bar have been practising before the Commission, but I have spent very many weary days before that Commission in many, many cases. It is an unfamiliar procedure to the common lawyer.
I do not think the noble and learned Lord, Lord Gardiner, has ever been before them or seen them, and I do not believe that the noble and learned Lord, Lord Elwyn-Jones, has been before the Commission; so at least I have the advantage of experience. It is more unfamiliar than appearing, as I have and perhaps they have too, before the International Court of Justice at The Hague. I confess to being a critic of some of their procedure and practice which is very different from what we are used to in common law procedure. I think that many of the practitioners who have appeared before them would agree. However, I will leave that aside.
What would the Commission take into account when they come to see this absolutely certain case of"guilty"on which they are going to pronounce? First of all, what have they to look at? They must look initially at the particular circumstances of the United Kingdom, and I stress that they are very particular circumstances in the aftermath of Empire and in the absence of a coherent United Kingdom nationality law. They would have to see that the position is unique in regard to the United Kingdom. They would also take into account that the United Kingdom has not signed the Fourth Protocol, as your Lordships will know, which is the article concerning the deprivation of the right of entry. That has not been signed by the United Kingdom.
They would take into account that the United Kingdom needs an immigration 394 policy and needs strict immigration control because of the vast numbers of people who still wish to come to this country. They would also take into account that marriage to a woman in the United Kingdom has now become a major means of primary male immigration. Normally, in the main, in all societies women join husbands, who have the prime responsibility of providing for their families; and, as I understand it, the arranged marriage—though it is certainly not entrenched in any rigid code—is mainly a marriage which is made for family allowance purposes. The bride's family agrees to it because of the husband's status, resources, expectations or family connections and his ability to look after the bride and make her happy. Then, at the conclusion of that arrangement, the bride goes to the groom. Compare that, my Lords, as the Corn-mission would, with the immigration racket; the sordid use which it is of the bride's residence in the United Kingdom, using that for the financial reward to the bride's family, and getting the groom whom she has never met into the United Kingdom: namely, the groom going to the bride.
All that is the background and the context which the Commission must be able to take, and would he able to take, into account. They must take into account, therefore, the context of the rules when they come to consider Articles 3, 8, 12 and 14 of the European Convention. The question must be whether a person ought to be regarded as being entitled to come as of right to the United Kingdom, whenever he wishes to marry someone here.
Article 8 deals with respect for family life. First, is a fiancé a member of a family, and does it carry with it the right to enter or reside in a particular country? Recently, at Strasbourg, it was held that it was no breach if a person was obliged to leave a country in order to marry a person of his choice. The basis of the jurisprudence is the Belgian languages case, which accepts that you can have a distinction if there is a reasonable justification.
The protagonists themselves do not claim that Article 8 in isolation will succeed. but they pray in aid the combination of Articles 8 and 14, which are the articles in respect of discrimination. Is there a reasonable justification, is there a legitimate aim, in these rules? That is 395 what the Commission would have to take into account. So that this cannot be swept aside so grandly and so gloriously as it has been swept aside, in my view—and it is only my view, and I appreciate the weight of the guns which are opposite me.
The East African Asians' case was certainly not an absolute precedent. It was based on facts which were wholly different—British passport holders and British protected persons. It is impossible to know what would be the facts in a particular case, if it were mounted and if a challenge were made to the rules. We are dealing with hypothetical cases, and in such cases it is very difficult to be certain as to what the result will be. There are, therefore, strong arguments for resisting the challenge, when one points to the reasonable justification and the legitimate aim which can arise out of these rules and circumstances.
§ Lord ELWYN-JONES
My Lords, I am most grateful to the noble and learned Lord for giving way again. Are we not, in fact, dealing here, not with the consideration of individual hypothetical cases, but with a declared practice of how to deal with a defined group of Asian people? This is the problem which the Government would have to face. It would not be a meticulous examination of this or that point of detail, but an examination of the propriety under the convention of the exclusion of whole groups.
§ Lord RAWLINSON of EWELL
My Lords, with great respect, I invite the noble and learned Lord to look at the East African Asians' case, in the days when his colleague Sir Dingle Foot was on the other side to me. Then it was brought out that it has to be in the names of individuals, and individual cases have to be looked at, to see exactly what are the circumstances. It cannot just be taken, as it were, as a matter of principle. The particular circumstances in a case have to be taken into account. Noble Lords will be glad to hear that I have nearly come to my conclusion.
If these rules are a breach of this convention, then we must accept that the effect is to give a right to that convention to override the powers of control over 396 immigration. I doubt whether that was ever intended by the high contracting parties. I have some doubt—I say some doubt "—that the Commission itself would accept that that right exists to override the control of immigration. But I have even more doubt that the Council of Ministers, to whom the issue would go under Article 32 if, for instance, the Commission found against Her Majesty's Government, would ever accept that control over immigration into a country was in the hands of the convention.
I think, therefore, that it will be a flighty lawyer who forecasts with complete certainty and tells everyone that the result of any litigation is clear beyond any doubt. I do not do so. All I do is to express some surprise that people have been so definite. I repeat that there exist arguments which can be powerfully mounted when, and if, this challenge is made.
Finally, I should like to say that I have had a letter from the Catholic Commission for Racial Justice, which expresses the view that the rules are almost certainly in violation of the European Convention on Human Rights. I think that that goes far too far. In the past, I have disagreed with some of the pronouncements of this body, which I think uses extraordinary language. It says:These rules will cause undue hardship to families ".Undue hardship? To whom? Is it undue hardship to a bride who has never seen a groom? Rather, I think, they may provide due disappointment to the venal operators of a singularly nasty racket.
So I have no hesitation in supporting the Government, who I think must discharge their responsibility in a very difficult and complex area which, fortunately, will be only temporary, because I am comforted by the pledge which has been given that we are going to change the nationality laws, from which so many difficulties have arisen both in the past and in the present.
§ 5.47 p.m.
§ Lord WADE
My Lords, may I start with a procedural point? I think I am right in saying that if this Motion is 397 carried, the regulations will have to be withdrawn. I do not think that the Motion could be ignored. That makes this a very serious debate, but it does not alter my strong recommendation to the House that the Motion should be carried. I hope that other noble Lords who are more learned than I am in the procedure of Parliament will not say that I am wrong; and I think that that is a correct interpretation of the position. However, I shall wait with interest to hear those who wind-up.
I hope that it will not be disrespectful to other noble Lords who have taken part in this debate if I refer to the right reverend Prelate the Bishop of Bradford who, I know, has had to leave because of an engagement tomorrow. I refer to him partly because I greatly appreciated his speech, but also because for about 15 years I was deeply involved in voluntary community relations work in Yorkshire, and I always had a very high regard for the work that was done in Bradford. I believe that they carried out a very enlightened policy, and, if the right reverend Prelate reads Hansard, perhaps he will pass on my comments.
What I have to say will be based mainly on personal contacts, not on Press reports. Knowing what a vast subject this is, and bearing in mind the number of noble Lords who are yet to speak, shall limit what I have to say to the matter of arranged marriages from a human aspect, so far as possible, and to the bearing which the regulations as a whole have on the obligations under the European Convention on Human Rights. References have, of course, already been made to arranged marriages, and one must try to deal with this matter as objectively as possible. Arranged marriages are not new to this country. There have been plenty of examples in the past, especially among the upper classes and some members of royalty. But today we tend to think of this custom in relation to the Indian sub-continent and to Asian people.
In regard to those people who have come to settle here, I think that the customs are changing. I agree with the Bishop of Bradford on that score. Let me give two examples on the opposite side of the coin. Not so long ago my wife and I went to a Pakistani wedding. It was a most attrac- 398 tive event, and no doubt other Members of this House have attended such weddings. My wife and I got into conversation with the sister of the bride and we asked whether she was likely to get married. She burst into tears. When we inquired further, we found that her father had arranged for her to get married, but that she did not want to marry and was very upset about it. That is one side of the coin.
On the other hand, a few years ago an interesting conference of young people took place at which an Indian girl in her late teens or early twenties spoke about arranged marriages. She told that conference of the advantages in such a marriage. She spoke of the time and thought given, not just by the parents but by the two families, to try to find a suitable boy for their girl and vice versa. The matter was taken very seriously indeed. She concluded that there was a lot to be said for arranged marriages. We must not be too sceptical about arranged marriages; they have their merits.
As for our own system in this country, I do not think we can boast about it all that much. In view of the number of broken marriages, I do not think our system is altogether perfect. Nevertheless, in the present climate in this country I believe that the attitude of the younger generation in the Asian community will be affected and that custom will change. Indeed, it is already changing. I do not know whether it will be for the better or for the worse, but change certainly is occurring. The important thing—again I agree with the Bishop of Bradford—is that it should be a natural change and not dictated by legislation or regulations arising from such legislation.
Despite what the Government may say, I believe that there are many in the Asian community who feel that these regulations are, among other things, an attack on their custom of arranged marriages. I shall in a moment refer to paragraph 52 of the rules. Before a boy can obtain his clearance certificate, he must say that he and the girl concerned had met in India, or wherever it may be. What exactly happens in such cases? Let us suppose that the girl is in this country and the boy in India. After long consultations of the kind I have described, it may be felt by the parents on both sides that this would be a suitable marriage.
399 If the father is wealthy, there is no great problem. He can afford to take the girl to India to meet the boy before he applies for an entry certificate. Therefore, it could be said that these regulations have a strong bias or discrimination in favour of the wealthy. If the parents are not that well-off, but if, nevertheless, the intention is that the boy and the girl should meet when he arrives in this country and that they should get married, and if all the plans have been made, the boy will find that he will be unable to get an entry certificate. When he goes to the officer responsible for giving a clearance certificate, he will find that under the new paragraph 52(c) he will be unable to satisfy the responsible officer that they have met. If he is honest, he will have to say that they have not met, and the whole thing will be off, unless there are some special circumstances. The odds are that he will be turned down.
This point was raised in some recent evidence given by the noble and learned Lord, Lord Scarman, to the Home Affairs Sub-committee on Race Relations and Immigration. At paragraph 110, on page 31 of the report, dated 17th January 1980, Lord Scarman agreed on the need for dealing with people who try to get round the law to get into this country. But when he turned to the new paragraph (c), which relates to cases where the parties to the marriage have not met, he said:Why it should be thought that (c) adds anything to the control of primary immigration, I do not know. It just seems to me to be an attack on the social habits and customs of people who have come to this country and who are living according to the customs in which they were brought up".That is the point I wish to emphasis.
There is one other matter to be considered. I mentioned the case of a father taking his daughter to India so that the two young people should meet. Unfortunately, there is a fear among the Asian community, and to some extent the West Indian community, about going abroad because of what may happen when they return. I see that the right reverend Prelate the Bishop of Bradford has now returned to the Chamber. I apologies for saying earlier that he had to leave. He will read what I said in Hansard. That fear among those communities arises because of the difficulty that is sometimes encountered when such people 400 return to our shores. Let me give an example. This is nothing to do with arranged marriages, but it is an extraordinary case. I am not making a complaint because the situation has already been dealt with, but it is interesting to outline this matter so that the difficulty can be seen.
A party of students from a polytechnic raised money to go to Spain for a fortnight with one of the lecturers, who was a member of the teaching staff. When they returned to this country and arrived at London Airport, one of the students did not have a white skin. It may have been very unreasonable or just a mistake, but the young lady in question was held back. It was thought that she was trying to get into this country by joining up with the party. The member of staff protested most strongly, but he failed to persuade the authorities to allow this girl in. The rest of the party returned to the college and she was left there. Furthermore, she was told that she would be sent back to Spain on the next plane. Fortunately, as a result of representations that were made—I need not go into who made them—the authorities eventually allowed the girl to come back to her place of abode in this country. But it was very disturbing for members of that community.
I could give your Lordships a number of cases to illustrate the fear about going abroad because of what may happen on return. It is just an illustration, but it is an added factor in this problem of how to get the girl—whom both families want to see married to the boy in India—there, even properly accompanied, and back without running into this particular difficulty.
I said that I am trying to deal with this matter from the point of view of practical experience. If I may come back to paragraph (c), it casts doubt on the underlying reasons for the new rules. Certainly it arouses suspicions. I think it shows that in the rules there is a lack of understanding of the practical difficulties involved. In some ways, the whole set of rules is slightly anomalous.
Let me take, for example, the hypothetical case of a boy in India. If it happened that the boy's grandfather had been born in this country, had worked for the British Raj in India and had shocked 401 his English friends by breaking with convention and marrying an Indian girl, and if this boy was able to show that he was the grandson of somebody born in this country, then, of course, it would be all right; Rule 52(c) would not, as I understand it, arise. Lord Barnby might he interested to know that, as I understand it, a mixed marriage in the West Indies or India is a definite advantage in this case. But is it reasonable? Is it not all somewhat illogical?
Unfortunately, there is more to it than that. There is discrimination, either direct or indirect, on grounds of colour and sex. If there is such a concept as sex discrimination, then I think we have it here. One has only to look at the rules and see the paragraphs dealing with men and the paragraphs dealing with women to realise that there is a distinction between men and women. Therefore the question arises as to whether the rules constitute a breach of the articles of the European Convention. Personally, I regard Articles 8 and 14 as the most relevant and I think that they should be taken together, otherwise it will lead to endless arguments as to whether there has been a breach of our obligations under the European Convention.
The United Kingdom, therefore, is in this dilemma. A choice has to be made between three possible courses. The first would be to attempt to withdraw from the convention. The objections arise under Article 65 of the European Convention. The Government would first give six months' notice, and this would have very serious international implications. Furthermore, it would not relieve the Government of any consequences of a breach committed prior to the end of the six months' notice. Withdrawal from the convention is not really, therefore, the way out.
Secondly, the Government could remain bound by the convention as it is at present. Remembering Article 1 under which, as a high contracting party, the United Kingdom is bound, and that this convention is both signed and ratified, this country is hound to secure for all persons within its jurisdiction the rights and freedoms contained in the convention. I am almost certain that sooner or later this would lead to proceedings of some kind, if only 402 to lengthy discussions with the Commission.
The third possible course is to put on to the statute book the Bill of Rights which I helped to get through this House towards the end of last year and upon which there is some difference of opinion between myself and at least one other Member on the Opposition Front Bench. But supposing, as I hope, that the Bill of Rights is put on to the statute book, the United Kingdom will still remain bound by the articles of the convention. The main difference would be that a complainant would be able to bring his complaint before a British court. I think that might avoid some of the international adverse publicity which arises when a case is taken to the Human Rights Court. But in any event, whichever of the three courses is followed, the United Kingdom Government will face at least the possibility of extremely embarrassing accusations and, I think, sooner or later, defeat.
I would not like to suggest that that is my sole reason for objecting to the rules. I think that they are contrary to some of the basic principles for which Britain has prided itself in the past. I accept that we live in a world that has such a very large population that there must inevitably be some regulation of movement of population. But if it comes about, it should be as fair and equitable as possible, and it should be seen to be so. My belief is that these rules do not pass this test. Therefore, fully aware of the consequences of carrying this Motion, I hope that even at this late hour the Government will decide to withdraw the rules. It will he for the benefit of the country to do so.
§ Lord GARDINER
My Lords, before the noble Lord sits down, may I say, since he asked me, that I doubt whether what I said about the rules was strictly accurate. The position, as I understand it, is this: that if this House disapproves of the rules tonight, they remain in force. The Home Secretary should then, within 40 days, produce amended rules for approval or disapproval. But until then these rules would remain in force.
§ 6.8 p.m.
§ Lord HALE
My Lords, I am particularly happy to follow the noble Lord, Lord Wade, because we have been associated together in the past in a great many causes, many of them involving matters of aliens, matters of liberty and matters of human rights. I regret that I did not find it possible to give complete assent to his own Bill or to take any useful part in helping with it. I hope the House will permit me to say that only the other day a piece of paper fell out of the mass of papers which I am still trying to burn at home, which recalled that we two campaigned together as two of the first in opposing the whole of the proposals for the Central African Federation which preceded the various break-ups and troubles that occurred and which have just, we hope, come to a completely happy conclusion.
I am also particularly happy to follow the noble and learned Lord, Lord Gardiner. I am always nervous in these days about intervening in debates where men of such outstanding ability and sincerity are going to speak. I have known the noble Lord, Lord Gardiner, and benefited from his wisdom and kindness from time to time. During my years of practice in the Midlands, Lord Birkett, who was a fellow candidate of mine, was extremely generous in his services and I acquired for him, too, a very great personal admiration.
On the point that the noble and learned Lord, Lord Gardiner, raised about the Royal Prerogative, if it be relevant, I did seek out Lord Jowett in my efforts to save the alleged juju murderers, who were in fact professing Christians, from being hanged. I told him that he was the keeper of Her Majesty's conscience and that as the governor had refused to see a parliamentary delegation, I proposed either to interview him officially and ask him to receive a deputation officially, or to approach Her Majesty and say that her advisers were not acting in their appropriate capacity. The result of that was that the governor received a deputation and, in one of those typical compromises characteristic of us, we hanged two and repealed the sentences of two, thus administering even justice.
I congratulate the noble Lord, Lord Barnby, on his handsome sunburn. We are always glad to see him. I can listen 404 to him with pleasure, saying anything. Of course his experience of Parliament goes back to 1918, which was not the most progressive of all Parliaments. When he referred to the House of Lords in, I understood, about 1890, the House of Lords was far in advance then on the social problem of the violation and sale of young girls, and the Cairns Committee fought the Commons, which turned the Lords' Bill down time after time. It was the Lords again who had to compromise slightly on the age of consent, thus securing the passage of the measure which was part of the whole of the sensational newspaper campaign that objected to English girls being sold for the service of the King of the Belgians.
If I may be permitted one other observation, in view of the hesitancy of the noble Lord, Lord Wade, about the arranged marriages between royal families, in fact Marie Antoinette, at the age of 15, was despatched from Vienna on terms that she be handed over half way to Paris and deprived of her personal attendants. It was only after that that she was married to Louis XVI, who failed to consummate the marriage for six years. That was not really the best of treatments for an extremely attractive lady of 15 years of age.
So far as the Hapsburgs were concerned, the next Hapsburg royal princess, who had been brought up to detest Napoleon as the most brutal of dictators, was sent, as part of a treaty, to marry him. Napoleon rather anticipated the question of consummation, with the advice of the cardinal, his uncle, and the marriage was consummated before the church service in Paris, having been performed by proxy in Vienna. So there was not really any great objection to a system of enforced marriages; indeed, in Italy one got over it by meeting one of the cavaliere servente who was permitted a great deal of liberty. The husband did not always necessarily require that.
In a way, I have the greatest regard also for the noble and learned Lord, Lord Rawlinson: he was highly respected in the House of Commons. I am sorry that he is not here. I am a little surprised today at his approach to Lord Gardiner, who I thought was respected by everyone. Certainly, he has never normally been accused of being either dogmatic or assertive, or in any way of assuming positions of authority or of dogma.
405 What I would have asked the noble and learned Lord, Lord Rawlinson, is this: think the law in England is getting into a dreadful situation. I think that the passing of the law by orders here and orders there, and White Papers here and White Papers there, when we are dealing with intensely individual personal problems, when each alteration, good or had, affects the personal interests of aliens who have been planning, hoping or seeking properly to acquire British nationality, introduces new causes for litigation and for conflict. I do not know what the European Court of Human Rights at Strasbourg would say about the alleged threat that Britain can always withdraw from the Court of Human Rights. I would have thought that that was a gross contempt of court and, whether a contempt of court or not, which does not much matter, I would have thought that the dignity which Britain acquired by submitting without protest to the judgment against it on the human rights question of the treatment of the Northern Ireland prisoners, on which I congratulated the Government at the time, would be wholly dissipated.
We are now confronted with a situation in which there is talk about withdrawing—indeed, there is talk about taking the vote from the Common Market, bringing up the whole of the regulations. This is all very material to this, because it is on some of the interpretations of the free transit among the countries of the Nine, which should be extended to 12 with more problems. I had the privilege for some years of working on the House of Lords Committee on the EEC and I think we became aware of a problem which, so far as I know, have still not been finally resolved: the problem whether the Court of Luxembourg will gradually establish the practice of stare decisis, which is also the subject of argument between the Court of Appeal and the House of Lords.
My Lords, a great amount of conflict is going to arise in the courts and internationally, because the other problem, of course, is the perfectly genuine problem (and let us be quite clear about it) of the almost impossibility of adapting French law in particular—though many of the countries of the Nine have law by code and a written constitution in one form or another—to our own system of law, of judicial decision upon parliamentary 406 enactment and of a law drawn from the historic law of which the great Lord Hale said—and he was Chief Baron of the Common Pleas and Lord Chief Justice and one of the most respected writers on law—that the common law of England had as many sources as the River Nile. Undoubtedly, that was confirmed and was true at the time,
I shall conclude by saying that I have always had the greatest possible courtesy from my political opponents both in the House and in my old constituency, and that what really upset me about the relationship between the parties was the occasion when the Conservative Party conference had a debate on immigration and the clear efforts that were made there to suppress the more outspoken protagonists of racial enmity.
The noble Lord who opened this debate, Lord Avebury, I thought put his case (as he so often does) with absolute clarity. I thought he showed the parts of this document which are clearly capable of interpretation as showing racial hostility and I really wonder—and sincerely wonder—for what reason the Government have come forward at this stage when another White Paper is due in a few weeks' time, producing a rule by this method after contracting the hours of debate in the Commons so as to reduce the effect of the Commons debate to one not nearly so rewarding as the debate last week on the Government's proposal to dispose of the Soviet Union by death by a thousand pinpricks. I begin to feel that the rule of law is being attacked in so many ways and over such an area and in circumstances which display something that looks remarkably like a contemptuous attitude to the old established laws that there is some justification for the articles in the Guardian and The Times of the last two days which reinforce the view that the price of liberty is eternal vigilance.
§ 6.25 p.m.
§ Baroness HORNSBY-SMITH
My Lords, I should like to join in welcoming the fact that the noble Lord, Lord Avebury, took the opportunity to introduce the debate and thus give us a chance to debate this issue in your Lordships' House, although he will not expect me to agree with much that he said. When I listen to 407 speeches from the Opposition, who have had the responsibility of dealing with this matter when in office in recent years, I recall from my experience that what they say in Opposition is markedly different from the responsibilities that they accept when they are in office. I recall that when I was a Member of the other place controls were introduced in the 'sixties by a Tory Government, and I remember, too, the Labour Opposition in the particular debate led by the noble Lord, Lord Stewart of Fulham (then Mr. Michael Stewart) and the right honourable gentleman Mr. Robert Mellish, whom I can well remember winding up and thundering at the Box that the first act of a Labour Government would be to annul this inhuman and racist legislation. That was great stuff on the run-up to an election!
Those controls were introduced for a year, after pressure in the House of Commons. In the following October Labour won the election, the Act came up for review, and in the immediately following November—I think it was a mere II days after the new Session had come into being—those regulations had to be allowed to die out or to be renewed. And what did the then Home Secretary, Mr. Callaghan, do? He not only continued the Conservative controls; he made them stronger and tighter than we had ever done, despite their pre-election pledges, and pledges made during the election.
Furthermore—and much nearer to some of the criticism that we have heard today—in the Labour Government's 1977 rules equally differential treatment was recommended as between a male seeking entry on account of a female United Kingdom citizen, and a female fiancée coming in to marry a male United Kingdom citizen. Those similar discriminations were included in those rules. Did we then have outbursts from the sex discrimination authority? Did we then have protests from the Labour Party? At that time it was not suggested that it constituted unlawful discrimination, although I am not sufficiently knowledgeable as to know whether the then Lord Chancellor, the noble and learned Lord, Lord Elwyn-Jones, told his Government that in his opinion they would be committing an illegal act. Indeed, in 1969 Mr. Callaghan in the House of Commons said that marriage was being used by many young 408 men of working age, as a means of entering, working and settling in this country. The concession under which male Commonwealth citizens were allowed to settle here in relation to the rights of their wives must be withdrawn. He said that on the 30th January, 1969. We did not then hear protests that it was illegal.
Every Home Secretary, of whatever party, has been bedevilled by illegal immigrants. In the late 'fifties and the 'sixties we had a sadistic traffic arranged by money lenders, sneaking in around the coast small boat loads of illegal immigrants, with horrific rates of interest on the fees charged, keeping these unhappy victims eternally in debt and often, blackmailing, them into underpaid employment because they were illegal immigrants without even a work permit.
Now, without these regulations, we shall have a new, much less painful, and much less expensive fiddle. The father of the bride, instead of providing a dowry, can obtain a fat sum for arranging a marriage between his unfortunate daughter, who may never have seen her future husband, and a stranger who may be many years older than herself and who, in his own right, has no right of entry into this country. Frankly, I am amazed that the sex discrimination authorities should condone this, because I find quite abhorrent the perpetuation of these arranged marriages for girls who m ay not wish to marry the person chosen for them by their parents in this country. Our Commonwealth immigrants justifiably claim all our rights under the law.
§ Lord AVEBURY
My Lords, if I may interrupt the noble Baroness, may I say that despite the"Hear, hear"from her Front Bench, the Home Office Ministers have said that they do not in any way criticise the custom of arranged marriages as such, but only arranged marriages which, as they claim, are used by men to get into this country for economic motives. Does not the noble Baroness understand that only some arranged marriages arc being stopped by these rules, and that the vast majority of them will be allowed to continue as before?
§ Baroness HORNSBY-SMITH
My Lords, the noble Lord has misunderstood what I said. If the marriage is arranged 409 and the young girl concurs, and has indeed seen her proposed husband—it would be very difficult for her reasonably to concur if she had not seen her future spouse—that is an entirely different matter from an arranged marriage which, without these provisions, could be bought—somebody virtually being sold in order to enable someone to come into this country.
§ Baroness LOCKWOOD
My Lords, I wonder whether the noble Baroness would allow me to put a point to her. Would she not agree that when this matter was debated in December of last year, I said in the course of my speech that I did not accept the question of enforced marriages and arranged marriages? Perhaps for the sake of the record she would wish to make it clear that those people concerned with the Sex Discrimination Act have not in any way condoned this. May I ask whether she would also like to make it clear that the then deputy chairman of the Equal Opportunities Commission, Lady Howe, and myself made representations to three Home Secretaries on this whole question. I am sure the noble Baroness would not want that to go unnoticed.
§ Baroness HORNSBY-SMITH
My Lords, I am aware of what the noble Baroness had done in her particular position. It is one thing to say that you do not condone selling a bride; it is quite another thing to make it easy and possible, which without these regulations it would be.
What I regard as a misrepresentation has been repeated four times by Members on the Benches opposite. It is that this would affect only Asian families. If any man marrying a woman with the right of citizenship in this country can come in, will any of those noble Lords who say that this will affect the Asians—that the Asians will be the group affected—tell me what, is to prevent any man of any race coming in if these provisions were not included? With the turmoil in Iran we could have a load of people using this easy entry.
Let us not bury our heads in the sand. In this rather promiscuous age, and with the advantages of easy divorce within two years, it would not be difficult, on payment 410 of an appropriate sum, to find a willing and obliging young woman in this country who would marry a foreigner, and even make a deal with him that the marriage was not consummated. That would be a much cheaper, much easier, and much safer way of entering this country than trying to smuggle oneself over in a little boat. You could find yourself blackmailed because someone had forged your papers, got you a false passport, and found you an underpaid job. Can anybody tell me any national that would not be able to come in—whether he be Australian, American, Latin-American, Iranian, Arab, or anything else? It would be an open door, because I do not believe that it would be difficult to find partners who, for a sum, would make this short marriage.
My Lords, the position is different in relation to the United Kingdom male citizen, because on him normally, as the provider, rests considerable responsibility imposed by law. If he pursues a divorce he may have to pay maintenance, if there are children, or for his wife, alimony. He may even have to hand over the matrimonial home on the decision of the court. It is a very different thing in the case of the majority of women who are not the provider, and in the case of Asian women they would be less likely to be the provider than if they were English women. I do ask your Lordships not to consider this as a wholly Asian issue. I think it has been most unfairly presented in that way. Without such provisions, which were agreed and originally mooted, and in one form brought in by the previous Labour Government, you would open the door, an easy door, for any foreigner who arranged a marriage with a United Kingdom woman to come into this country, and would make nonsense of any immigration control.
§ 6.39 p.m.
§ Lord HATCH of LUSBY
My Lords, my only comment, in following the noble Baroness opposite, is that she appears to have a much lower opinion of her own sex than I myself or, I think, most Members on this side of the House do. I see no reason whatever to suppose that British women would be any more liable to be bribed into the activities that she has suggested than a British man would. I just do not see the point in following that kind of argument. Indeed, most of the 411 arguments concerned in this debate have already been made by previous speakers, and I have no intention of repeating them.
I should like to follow the attempt that has been made by a number of noble Lords and noble Baronesses to broaden out the debate somewhat, because the first issue that seems clear to me is that the title of this document is a misnomer. We are not talking about changes in immigration rules; we are talking about nothing less than a reduction in coloured immigration. Let us be blunt about this. We have heard from a number of noble Lords opposite this afternoon about the real root of these proposed changes in the immigration rules. They stemmed originally from that notorious broadcast referred to by the noble Lord, Lord Avebury, at the beginning of this debate—the broadcast of the Prime Minister in which she said that there was a fear among the people of this country of being swamped. If the noble Lord had gone a stage further he would have discovered that she also agreed that one of the objects of her broadcast and of the ideas that she expressed in her broadcast, was to regain the votes that had been lost to the National Front. That is the place to which the Conservative Party is inviting those who believe in National Front ideology to go.
If we are frank about this issue and if we read tomorrow's Hansard; the Hansard of the debate in the other place last week; and the Hansards of the debates that took place in December, we shall see that running all the way through is the constant thread of the fear, not of immigration, not of too many people in this country and not of increased unemployment in this country, but of an additional number of coloured people.
The noble Lord, Lord Barnby, knows that I have a great affection for him. I think that the speech that he made this afternoon was very important and one of the most significant speeches made during this debate. Add the speech of the noble Lord, Lord Barnby, to that of the noble and learned Lord, Lord Rawlinson, and one has the kernel of the whole of these regulations: the desire to placate those in the Conservative Party who have been assured that coloured 412 immigration, will he reduced. Even on the most extravagant estimate that has been given by the Government so far, these regulations will reduce immigration by some 3,000 to 4,000. I ask the Minister who is to reply whether it is worth while raising the fears, exacerbating racial tension and causing families distress, for the sake of a reduction of not more than 4,000 coloured people per year.
I shall go further—again I am referring to the speech of the noble Lord, Lord Barnby—and say that I believe that we are doing a great disservice to the people of this country by provoking unnecessary fears, but fears expressed perfectly clearly by the noble Lord, Lord Barnby, himself: the fears of mixing with people whose skin colour happens to be different. I have had the privilege of living in genuine non-racial societies. I came back only last week from Zambia which is a genuine non-racial society. It is not a multiracial society, but a non-racial society. People do not notice the colour of skin. Men and women of all colours go about in pairs and in groups and the colour of their skin does not matter.
The same can be said of the West Indies. I was surprised to hear the noble Lord speak as he did about miscegenation in the West Indies, because quite frankly I believe that the people that I have seen in all the West Indian islands are some of the most beautiful people in the world. If I were to choose a place to die it would be in Woodford Square, Trinidad, just watching the girls go by. If one goes beyond appearance and into their homes, and if one mixes with them socially, politically and economically, one finds that they are the people that one is accustomed to meeting in this or any other country—the colour of their skin makes no difference. The colour of their skin has nothing whatsoever to do with the quality of their brain, their intellect or their emotions.
I believe that our country has a very great opportunity during our generation—during the past 25 years and during the next 25 years. I hardly need to remind your Lordships that the whole history of this country has been one of miscegenation—it has been a history of mixed communities and of mixed cultures, each one enriching that which it found when it came to our shores. We are now finding 413 a further enrichment from the Indian subcontinent, from the West Indies and from Africa. That is the life of our generation and, above all, it is the life of generations younger than us.
The Prime Minister does not represent all opinion in the Conservative Party. The noble Lord, Lord Hale, referred with sorrow to the Conservative Party Conference of last October in Blackpool. I remember watching that conference and hearing at that conference one of the bravest speeches that I have ever heard at any party conference from a young person, who stood up and said,"I want to be a member of a multiracial society; I want to see in our society a mixture of cultures and races because that is exciting, that is enriching and that is the kind of country that I want this country to become ". Do not let us accept that the fear that has been talked about this afternoon is by any means universal; it is not. Among particularly younger generations the fear is not only absent, but the desire is there to increase the richness of our culture and to become a part of a genuine world culture. It has already been shown that these regulations——
§ Lord BARNBY
My Lords, I hope that the noble Lord will give way. He has referred a good deal to my remarks, but, of course there is just this difference between himself and myself: I emphasized that my belief was strong in the purity of the British race, and the British race originally did not include a mulatto content.
§ Lord HATCH of LUSBY
My Lords, of course I could take up that point for a very long time. There is no such thing as a British race. Any anthropologist will tell us that we use the word"race"far too loosely and that there has never been a British race. There have been a number of British societies and British communities, but there is no such thing as a British race. There are four primary races in the world and we are a mixture of a number of them. However, tonight I do not have time to pursue that, although I should very much like to pursue it with the noble Lord on some other occasion.
As I was saying, it has been shown quite clearly in this debate that these regulations are both racialist and sexist. It has been 414 suggested that they would be found to be such by the European Commission. It has also been suggested that some legal advice ought to be given to the Government and to the House on this matter. I would point out to the House that the Home Affairs Committee did invite a Law Officer to attend its sessions earlier this year, and that invitation was refused; that this was reported in the First Report of the Home Affairs Committee published on 11th February; and that it was noted there that the invitation for the attendance of a Law Officer was not taken up by the Law Officers of the Crown. I wonder why? Perhaps the noble Lord, Lord Belstead, can tell us why this opportunity to clear up this matter was rejected.
I should also like to quote the noble and learned Lord, Lord Scarman, whose views we all respect, in conclusive establishment of the allegation that these regulations are discriminatory. If we read the report of the evidence given to the committee, on page 30 we see that in talking about Rules 50 and 52—those concerning husbands and fiances—the noble and learned Lord had this to say:Now, undoubtedly, the effect of that policy carried out will be that some women settled in the United Kingdom will be less well placed in their family life than others. That is a discrimination ".I ask the noble Lord who is to reply whether or not he accepts that this is a discrimination and, if so, how he defends a deliberate Government policy which is based upon both racial and sexual discrimination.
Finally, it has already been established, particularly by my noble friend Lady Birk, that this is really a mean little measure which has very little effect on the question of immigration, but which has a distressing effect on family life and individuals. I wonder whether the noble Lord, Lord Belstead, would answer these questions. This measure has been produced in order to satisfy the promises given in the Conservative Party manifesto of last May. But demands of this kind are never satisfied. Let us remember that in the same manifesto there was a promise to bring in a quota and there was a promise to bring in a register. I suggest that when we get through these regulations, and if the quota is brought in and if the register is brought in, the next stage will be the demand for repatriation, of which we have 415 already heard this afternoon. Will the noble Lord tell us: do the Government intend to give the same arguments, that because it was in the manifesto they had to exclude male fiancés and husbands and that, therefore, the next step will be to introduce a quota, and the following step to introduce a register? Are the Government keeping to their promises in the manifesto? If so, is this not but a first step in a process that will take several years to complete?
I conclude with a constructive suggestion. If we are really talking about immigration, if we are getting away from this nonsense of colour and the relationship which does not exist between colour and culture, then we have a problem to face, and none of us is facing it. There is a reasonable argument for saying that these British Isles can maintain, at an average standard of living, a certain number of people; that the employment opportunities in these British Isles can be roughly measured; that we know that, in rough figures, we can sustain so many people. But we are not doing that. We are not even asking those questions.
Is it not time, not just that we have a new nationality Act, which is probably a necessity, but that we set up a Royal Commission to look into the whole issue of population, and population divorced from the question of colour, and at the kind of size of population which these islands can sustain? Is it not time that such a Commission be set up, that evidence be given to it, that it be kept in being, and that it regularly reports to Parliament on its findings, so that we may debate them here? However, above all, surely this House—indeed, this Parliament and even this Government—must rid themselves of the sickness of colour prejudice which has run through this debate and previous debates on this issue. Let us talk about immigration. Let us forget skin colour.
§ 6.57 p.m.
§ Lord MONSON
My Lords, may I start by welcoming the changes made to two aspects of the draft immigration rules set out in the White Paper last year, to which I, together with other noble Lords in various quarters of the House, drew the Government's attention the last time 416 we debated this subject in December? These were, first, the unduly severe age limits imposed on au pair girls and, secondly, the restrictions imposed upon the ability of the wives and children of mature overseas students to take temporary jobs in this country in order to help support their husbands or parents. Essentially, these restrictions bore unnecessarily heavily on short-term visitors to this country, as opposed to immigrants as such, and I am glad that they have been relaxed.
As for the remainder of these rules, I fear that I do not share the attitude of the noble Lord, Lord Avebury, the noble Baroness, Lady Birk, and others towards them. As the Minister of State, Mr. Raison, pointed out in another place on 10th March at column 1026 of the Official Report:The numbers are still large in absolute terms, and the underlying pressure to settle here remains high … It must be said that there is great pressure to come here from many parts of the world ".Further on he says:… marriage is still being used as a means of securing migration ".So obviously really tight controls are essential. Although I do not believe that these rules will have the dire effects predicted by some noble Lords on the Liberal and Labour Benches, I do accept that the necessary stringency of these immigration controls—necessary for reasons to which I shall come in a moment —may rebound in a few cases upon the just as well as upon the unjust. But whose fault is that? Certainly it is not the fault of the present Government, who are reacting to the long-suppressed will of the electorate, and in a democracy that seems to me the right thing to do.
The fact is that the longer the procrastination in tackling a major problem, the harsher the remedial measures have to be. If some of these restrictions seem a little on the harsh side, the fault surely lies, first, with the architects of the British Nationality Act 1948. Secondly, an even greater blame attaches to those who fought so fiercely to prevent the implementation of restrictive measures at the beginning of the 1960s, which eventually culminated in the Commonwealth Immigrants Act 1962. One acknowledges of course the sincerity of those who put up such a fight, mistaken though it was, but the 417 result was that these delaying tactics allowed hundreds of thousands of people who could see the barriers being erected to slip in under these barriers, as of course they had a legitimate right to do.
A third, albeit somewhat lesser culprit. was the Labour Government in 1974 which lifted a number of the Heath Government's restrictions, and at the same time granted an amnesty to illegal immigrants, thereby giving the people of this country the impression that whatever lip service the Establishment paid to their wishes and fears, in practice it did not give a hang about their feelings in the matter. This was the same"Establishment"which had sneered so patronisingly at the public's fears during the 1950s and early 1960s but had never subsequently expressed regret at so doing. Although they tacitly conceded that they were wrong, in so far as they supported Mr. Callaghan's restrictive measures in 1968, they would never admit it publicly. It was curious, when you come to think of it, that they should fail to express regret, because after all if an"open door"policy was a moral imperative 20 years ago it must he a moral imperative today; conversely if it is not a moral imperative today it could not have been a moral imperative 20 years ago.
Nobody can deny that immigration for permanent settlement on such a massive and unprecedented scale—and I stress the words"permanent ","massive ", and " unprecedented "; I am not talking about students, tourists, people on short-term contracts, nor am I talking about refugees—has changed the shape and character of Britain far more than our accession to the European Economic Community or, for that matter, Scottish or Welsh devolution would have done had they come about. Yet the people were never given the chance to express their views in a referendum. Had there been a referendum at any time since 1945 the answer would have been a resounding and overwhelming No, as I am sure even those noble Lords who oppose these changes in the immigration rules will acknowledge.
The noble Baroness, Lady —am sorry to see that she is not in her place —used the term"extremism ". I am bound to say that her rather extreme use of the term"extremism ", if I may put it that way, would seem to bracket the majority 418 of the inhabitants of Britain and any other industrialised and long-settled country as extremists in so far as they do not, for the most part, wish to see immigration on the massive scale that we have seen it. The instinct of the people really is sounder than that of their mentors in this matter, because although, as the noble Lord, Lord Pitt, rightly said the last time we debated this matter—and I am sorry that he is not here today—ideally one should look upon people as individuals rather than as members of a group (and in this respect, of course, he was quite right) the fact is that it is far easier to look upon people as individuals if the numbers coming in are small. When the numbers coming in are large, personal considerations become overshadowed by communal or even, in certain cases, geopolitical considerations.
We now have a Government which appears on the face of it to be more genuinely in tune with the people's wishes in this matter than any Government since 1945. This is one of the reasons they did so well at the last Election. This point has been brought up by several noble Lords on my right. Indeed I would guess that possibly as many as 15 marginal seats fell to the Conservatives as a result of what Mrs Thatcher said on television, not only in the instance cited by the noble Lord, Lord Avebury, but in some of her other television appearances. Really the noble Lord, Lord Hatch, should not have dragged in the red herring of the National Front. I have met several staunch Labour voters who voted Conservative for the first time in their lives partly because of Mrs Thatcher's attitude last May. It is only to be expected, therefore, that the Government are going to start carrying out what they promised—and it surely is only a start. I think they are right, and am therefore very pleased to support them.
§ Baroness GAITSKELL
My Lords, before the noble Lord sits down, may I ask him one question? He has been speaking for a reduction in immigration, just as many noble Lords opposite have been doing. Surely if noble Lords speak for a reduction in immigration, they are speaking only for a recession. If there is an upturn in the economy, if the country begins to do well, as I hope it will, then we shall need these immigrants. Therefore, I think 419 it might be wise for noble Lords to consider that.
§ Lord MONSON
My Lords, I am glad that the noble Baroness raised this point because it gives me an opportunity to lay to rest one particular red herring, which is that mass immigration is necessary for our economic performance, such as it has been. Over 10 years ago the Observer newspaper —and I do not suppose that any noble Lord would consider the Observer a newspaper hostile to immigrants—came out with a survey written by a (professor of economics (Professor Alan Day, if I remember rightly) which revealed that the economic benefits of immigration were almost exactly counterbalanced, indeed possibly outweighed, by the disadvantages—so there was no net economic gain. Now of course we have the micro-chip revolution coming: so I do not think we need any more people in this country with that in front of us.
§ 70.6 p.m.
§ The PARLIAMENTARY UNDERSECRETARY of STATE, HOME OFFICE (Lord Belstead)
My Lords, the noble Lord, Lord Avebury, has sought to persuade the House to disapprove the changes in the immigration rules which my right honourable friend the Home Secretary has laid before Parliament. This is not the first time that the noble Lord has brought this matter before your Lordships. On the 11 th December last we debated the White Paper entitled Proposals for revision of the Immigration Rules, and your Lordships rejected the noble Lord's similar Motion on that occasion. Perhaps that was very much in Lord Monson's mind as he made the speech he has just made.
As a result, however, of that debate last December, the Government have reconsidered certain matters and the rules now incorporate certain changes. I realise that these are not enough to satisfy the noble Lord, Lord Avebury, but I hope that the House will feel that the rules, as now presented, are fair and are reasonable. The Government believe that a firm and a fair immigration control is essential for good community relations. My noble and learned friend Lord Rawlinson put this much more ably than
420 I ever could. May I just add that the way in which some people over the years have undoubtedly come to this country and then deliberately overstayed is a practice which feeds fears and sours relations. We are setting out therefore in these rules to try to achieve a more effective control, but in a manner which we hope is reasonable and fair.
If I may, I shall summarise the main changes which have been made since the House debated the White Paper in December. First, we have included fair and reasonable transitional provisions. The most important effect of these is that any appeal against refusal of an application considered under the old rules will be heard on the basis of those old rules. Secondly, it remains the case that a husband or fiancé will be ineligible to enter or remain if the marriage is entered into primarily in order to obtain the man's admission to the United Kingdom; or if one of the parties has no intention of living permanently with the other—that is the rule which was incorporated in the Rules by the previous Government—or if the two people have not met. But where these requirements are satisfied an entry clearance will—not may—be issued to the husband or fiancé provided that the woman is a citizen of the United Kingdom and Colonies who was born here or, and this is an addition, one of whose parents was born here. This latter provision will prevent any possibility of a woman being penalised simply because her parents happened to be abroad or happened to be working abroad at the time of her birth.
The noble Baroness, Lady Birk, asked how entry clearance officers would reach decisions on the entry criteria. The answer is: in exactly the same way as entry clearance officers go about their work under the existing rules, under which, in order to discover the truth of whether a marriage of convenience—the rule put in by the previous Government—is or is not at issue, an entry clearance officer has to put questions to the applicant for entry.
A third point of concern mentioned in your Lordships' last debate related to the admission of elderly parents and grandparents. The White Paper proposed to exclude elderly relatives unless they could show that they were suffering a standard of living below that of their own country.
421 The argument against this was that if they were being supported by children who had already come to the United Kingdom, they would not be able to show that they had an unusually low standard of living, and this requirement has therefore been removed. It will still apply, as under the previous rules, to more distant relations and to parents and grandparents under 65, except widowed mothers.
We recognise the concern which was expressed by the noble Lord, Lord Avebury, last time about prohibiting from work the wives and children of students and of people who are here in order to work. These proposals have been dropped. We have also modified the provisions for visitors and students who want to remain for employment. The noble Lord, Lord Pitt of Hampstead, pointed out on the last occasion that we need to ensure that nurses and midwives who are trained here are not prevented from taking employment at hospitals in this country. That was good advice, and they will therefore remain able to do so, unless their studies were financed by their home Governments or another agency in the expectation that they would return to use their training in their own country.
During the debate in December the noble Lord, Lord McNair, who also is not here tonight, drew attention to the position of writers or artists who come to this country. I am not sure that we have been able to go as far as the noble Lord would have liked, but instead of any prohibition, writers and artists will be restricted to employment which can be approved by the Department of Employment, and their position is therefore the same in that respect as it was under the old rules.
The proposed upper age limit for the entry of Commonwealth working holidaymakers has been relaxed, from 25 years old to 27; these are young people who come here from Commonwealth countries to see the United Kingdom and Europe, before they settle down in life and perhaps marry; and to take account of those whose extended studies could delay their plans to travel abroad, we have raised the age level, which we had intended in the White Paper, from 25 to 27, and the same provision is made for au pair girls.
422 Finally, on 11th December my noble friend Lady Elliot of Harwood expressed particular concern on behalf of refugees. I hope my noble friend will welcome the clearer drafting of the provisions relating to refugees in the rules which makes it clear that a refugee or asylum claim has precedence over all other parts of the rules. This country has a long record of providing shelter and safety for people who are in trouble, and we have been very ready to draft these paragraphs in response to points made by the London representative of the United Nations High Commissioner for Refugees.
The Government are genuinely grateful for the points which were raised by your Lordships in the debate three months ago and I hope the information I have just given shows a willingness on the part of the Government to do our best to meet points that were made. But the Government have laid these rules before Parliament because when the problem is studied it really is not possible to do other than reach the conclusion that primary immigration into this country should come to a halt.
That is not just my view, and it is not the view only of my right honourable friend or members of the Conservative Party. It was the view of the all-party Select Committee on Race Relations and Immigration which reported 18 months ago. The five Labour and five Conservative members of the Select Committee made it clear that further immigration is bound to have an impact on unemployment and the economy so far as welfare services and other facilities are concerned, and they held this view in the context, of course, of doing their best to try to improve community relations in this country.
The noble Lord, Lord Avebury, as I understood him, concluded'that because the immigration statistics are showing some decline, there is really no immigration problem. With respect, that conclusion is, I believe, false. The pressure to settle in the United Kingdom remains high; but what has happened is that last year the decline in the number of entry clearances reflects, at any rate to some extent, a reduction in the number of applications processed at our posts abroad, which have had to concentrate 423 their work on shortening the delays faced by applicants appealing against decisions to refuse entry clearance.
Your Lordships might be interested to hear that the numbers of people accepted for settlement here bear witness to two major commitments which we have accepted in the past. The first commitment is to the entry of wives and minor children of men who are already settled here, and they account for about half of the 70,000 or so people who have been accepted for settlement in the last few years in the United Kingdom. The second commitment is to those United Kingdom passport holders subject to immigration control who are in difficulties in their countries of residence. In addition, the United Kingdom has, of course, continued to play its part in successive international schemes for the resettlement of refugees.
Because we have these major commitments, which this country is ready to shoulder, it is right that, apart from urgent compassionate cases, immigration for work has to be strictly limited. My noble and learned friend Lord Rawlinson hit the nail on the head when he drew attention to the problems if marriage rather than employment becomes the greater cause for immigration. I have to tell your Lordships that in each year since 1975 about twice as many men have been accepted for settlement on grounds of marriage than on completion of four years in approved employment. We know that an appreciable number of these men have married girls settled here, not for the usual reasons but in order to be accepted for settlement in the United Kingdom.
My noble friend Lord Fortescue spoke about this problem. The right honourable gentleman the Leader of the Opposition, when he was Home Secretary in 1969, was so concerned about the problem that he banned husbands and fiancés from entering. In 1974 Mr. Jenkins, then Home Secretary, lifted the ban, but having previously taken the contrary view. Evidence shows that those misgivings were justified, for the numbers shot up and obliged the previous Government, in 1977, to change the rules yet again to prevent marriages of convenience. That change in the rules has had only limited effect, 424 and we are therefore laying down in these rules the practical tests as to whether the marriage is entered into primarily for the man to obtain admission to the United Kingdom.
I appreciate that the noble Baroness, Lady Lockwood, is concerned about the difference of treatment under these rules between men and women who wish to enter or remain for marriage. But the answer to that is straightforward: there would be great difficulties about applying restrictions to the entry of wives and fiancés without changing the immigration and nationality law which we have all inherited from the past. But although the Home Secretary has promised to publish White Paper on nationality law in the near future, we arc not now changing the law. We are making necessary changes to the immigration rules which, among other things, are addressed to the specific problem of preventing men using marriage simply in order to gain entry to the United Kingdom.
The charge has also been levelled that the rules discriminate on grounds of race. This is not so. The opening paragraph of the first and second sections of the rules expressly states that they are to he applied without regard to race, colour or religion. Nor do the rules strike, if I may say so, at the Asian custom of the arranged marriage, which is a custom adaptable to changing circumstances; and, my Lords, it is not an essential part of the custom that the partners should never meet. Others of my noble friends have spoken about this, including, with her experience at the Home Office, my noble friend Lady Hornsby-Smith. I would only add to what my noble friend said that the exclusion of a man who has not even met his intended bride does not seem unreasonable, nor to raise any question of hardship.
My Lords, it has been suggested, thirdly, that the new rules could be in breach of the European Convention on Human Rights. Your Lordships have had the benefit this afternoon of hearing the views in this debate of the noble and learned Lord, Lord Gardiner, and of my noble friend Lord Rawlinson. All I would say, as someone who is not a lawyer, is that those views do not entirely coincide. Something told me that the noble and learned Lord, Lord Gardiner, is 425 not perhaps as partial as he might be towards the Home Office. I assure the noble and learned Lord that the sentiment is not mutual, and I will prove this by following the noble and learned Lord in the line that he took in his speech. The noble and learned Lord said that he would not waste much time on the subject of the European Convention. My Lords, nor shall I; and I will not do so because, if your Lordships have had time to read the last page of the first report from the Home Affairs Committee in another place, your Lordships will have found there written evidence from Professor Fawcett, President of the European Commission on Human Rights.
In essence, Professor Fawcett makes the point that all will depend upon the facts of each case which comes before the Commission. This must be so. The Government by no means concede that the Commission would be bound to take the view that there was a prima facie case for supposing that a breach of the convention might have taken place in a particular case; but if they took that view on the facts of a particular case, it would be open to the Government to present arguments in justification of the rules, and the policy arguments for making the changes would then be relevant. Some of these arguments have of course been discussed during the debates in another place, and now, again, this afternoon in your Lordships' House; and the Government believe that they are powerful arguments, and would carry weight with the Commission should the need arise.
My Lords, in this controversial field I must say that I would have thought that in your Lordships' House we could find common ground at least on one point, and that is that immigration matters are complex and difficult. They affect people's hopes; they touch upon people's fears. The consequences of decisions in this field affect the economy and employment. I am surprised, therefore, that noble Lords opposite (who, after all, when in government, were members of a party which changed its mind three times in ten years on the subject of the entry of husbands and fiancés) can be so certain in criticising the Government over the new rules which we have been discussing.
I must say that I am even more surprised that since our December debate 426 the Labour Party has seen fit to publish a document entitled Labour Party Discussion Document on Citizenship and Immigration. This document starts by criticising the entry system which this country has as"arbitrary ","inhumane"and"racially discriminating "—scarcely an encouragement to the work of Ministers in the previous Government. The document goes on to recommend an enormous increase in the right of abode in this country, and proposes, then, a far more elaborate system of appeals. It is a document which would enormously increase the demands made on social security by people coming to this country; it would extend the grounds for entry; and it casts a quite unwarrantable slur upon the independence and impartiality of adjudicators.
I am not surprised that we have heard no mention of this document from the other side of the House, because it is not consonant with the responsible views which noble Lords opposite habitually put on these matters, very often speaking from many years' experience in race relations fields; and, of course, it denies most of what the Labour Party did when in Government, since the time when the right honourable gentleman the Leader of the Opposition was Home Secretary some 12 years ago. Indeed, if this Labour Party document were to become law, it would virtually mean the end of any effective immigration control.
By contrast, I put it to your Lordships that the Government's proposals have been made in response to the need to try to ensure the effective control which is required. The pressures for entry vary from time to time, but they are always in excess of this country's capacity to absorb them. This in itself really cannot be good for race relations. In his speech the noble Lord, Lord Hatch of Lusby, said that he would broaden out the argument, and, as I understood him, he ascribed these rules to narrow political interests. I wonder whether the noble Lord's instinct is right in this matter. For their part, the Government say that it is primarily to achieve good race relations that we are determined to try to put immigration control on a sounder footing.
So the new rules on setting up in business; the new prohibition on visitors 427 switching into employment; and the new time limits on visitors and students, which are perfectly reasonable and will cause no trouble to those who are genuine, will all do much to end the practice of turning a temporary stay into permanent settlement. We remain determined to take firm action against illegal entrants and overstayers, and the forthcoming computerisation of landing and embarkation records should greatly assist in this field. The general provisions in Rule 88 will enable us to take account of those who, however plausible, are clearly manipulating the system. Yet, as I sought to explain earlier on, we have shown our willingness not to lose sight of compassionate factors.
These provisions in the rules do not apparently appeal to the noble Lord, Lord Avebury. I am afraid that, after two long debates within a period of three months, we must agree to differ. The Government remain firmly of the view that the measures taken in these rules are necessary, reasonable and right, and I urge your Lordships to reject the Motion before the House today.
§ 7.28 p.m.
§ Lord AVEBURY
My Lords, I have not read the Labour Party document to which the Minister has just referred, but I certainly agree with it that the existing rules are arbitrary, racist and unjust. To prove that, in the majority of cases which I have submitted to the present Minister of State since the Tory Government came into office he has decided outside the rules that the particular claimant should be given the benefit of the doubt and should be allowed to remain here, in the exercise of his discretion. That means that the existing rules, before these were introduced, were already causing serious hardship, which could be remedied only by ministerial intervention. I think the noble Lord, Lord Belstead, knows this perfectly well, because sometimes when his honourable friend has not been there he has had to deal with some of the correspondence.
My Lords, there are endless examples of controversy. My noble friend Lord Wade gave one this afternoon, of perfectly inhuman treatment accorded to a person 428 at the port of entry simply because of his colour. I do not wish to pursue that any more, because we are talking about the existing rules; and the reason why I did not echo the welcome which was given by the noble Baroness, Lady Birk, and also by the noble Baroness, Lady Lockwood, to the changes which the Minister has now spelt out is because I think that if you remove on a large scale the rights that people have previously enjoyed and then, under pressure, you give some of them back, or you give them back to some of the people whom you were going to deprive of those rights, then it is not a matter for congratulation at all. It is only to he expected that the Government, in their initial drafting of these rules, would have gone as far as they thought it was possible to get away with; and it is as a result of the arguments which have taken place in your Lordships' House and in another place that they have been forced to backtrack a little bit—but not enough, I hope, to satisfy your Lordships this evening.
My Lords, we have heard varied weighty additions to the legal opinions that I mentioned at the beginning of the debate to show that these provisions are in contravention of the European Convention on Human Rights. There was not only the noble and learned Lord, Lord Gardiner, who mentioned that he had the authority of his noble and learned friend Lord Elwyn-Jones for the opinions that he expressed, but also my noble friend Lord Wade, a distinguished lawyer himself and an expert in European conventions, and the noble Lord, Lord Hale. All thought that we would be at serious risk of being convicted before the European Court. The only opinion expressed on the other side was that of the noble and learned Lord, Lord Rawlinson, who, by the way, thought that the matter would go from the Commission to the Council of Ministers. I take it that the noble and learned Lord, Lord Rawlinson, is at least expecting that the Commission would find that there was a case, although I am not certain why he thinks it would be determined by the Council of Ministers who, in the light of our experience with the East African Asians case, would be more likely to take a sympathetic view than the European Court. I think that the provisions of Article 48 of the Convention indicate that in all likelihood this case would come before the European Court rather than the 429 Council of Ministers and that it would be decided in the full glare of publicity.
I do not think that anything I say now is likely to change anybody's mind and, therefore, I will reiterate that if we do allow these rules to get on to the statute book it will be very harmful to race relations. This is contrary to what the Minister has said—and, as I said, his view is in conflict with that of all the ethnic minority organisations which have expressed a view on this; and the noble Lord did not reply to that. The Commission for Racial Equality and all such organisations as the Indian Workers' Association have said that these provisions arc likely to damage race relations.
§ It is only the Minister who believes that they will be likely to do them any good. In the face of that evidence and in the certainty that we shall have at least serious difficulties in rebutting a case presented against us in the European Court, I very much hope that your Lordships will see fit to reject these rules this evening
§ 7.33 p.m.
§ On Question, Whether the said Motion shall be agreed to?
§ Their Lordships divided: Contents, 35; Not-Contents, 103.429
|Ardwick, L.||Hale, L.||Pitt of Hampstead, L.|
|Avebury, L.[Teller.]||Hatch of Lusby, L.||Robson of Kiddington, B.|
|Banks, L.||Hooson, L.||Rochester, L.|
|Beaumont of Whitley, L.||Jeger, B.||Stewart of Alvechurch, B.|
|Birk, B.||Llewelyn-Davies of Hastoe, B.||Stewart of Fulham, L.|
|Boston of Faversham, L.||Lockwood, B.||Stone, L.|
|Byers, L.||Masham of Ilton, B.||Underhill, L.|
|Collison, L.||Melchett, L.||Wade, L.|
|Davies of Leek, L.||Milner of Leeds, L.||Wigoder, L.[Teller.]|
|Gaitskell, B.||Mishcon, L.||Winchilsea and Nottingham, E.|
|Gardiner, L.||Ogmore, L.||Winstanley, L.|
|Gosford, E.||Peart, L.|
|Airey of Abingdon, B.||Elton, L.||Mowbray and Stourton, L.|
|Aldington, L.||Enniskillen, E.||Murton of Lindisfarne, L.|
|Amherst of Hackney, L.||Exeter, M.||Napier and Ettrick, L.|
|Ampthill, L.||Faithfull, B.||Northchurch, B.|
|Argyll, D.||Falkland, V.||Nugent of Guildford, L.|
|Armstrong, L.||Ferrers, E.||Onslow, E.|
|Atholl, D.||Fortescue, E.||Orkney, E.|
|Auckland, L.||Fraser of Kilmorack, L.||Pender, L.|
|Avon, E.||Gainford, L.||Penrhyn, L.|
|Barnby, L.||Galloway, E.||Rawlinson of Ewell, L.|
|Bellwin, L.||Gibson-Watt, L.||Reigate, L.|
|Belstead, L.||Gisborough, L.||Renton, L.|
|Boyd of Merton, V.||Glendevon, L.||Rochdale, V.|
|Camoys, L.||Glenkinglas, L.||St. Aldwyn, E.|
|Campbell of Croy, L.||Gowrie, E.||St. Germans, E.|
|Carrington, L. (A Principal Secretary of State||Gridley, L.||St. Just, L.|
|Grimston of Westbury, L.||Salisbury, M.|
|Cathcart, E.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Sandford, L.|
|Clitheroe, L.||Sandys, L.[Teller.]|
|Cockfield, L.||Henley, L.||Savile, L.|
|Cork and Orrery, E.||Hives, L.||Selkirk, E.|
|Cottesloe, L.||Home of the Hirsel, L.||Sempill, Ly.|
|Craigavon, V.||Hood, V.||Sharples, B.|
|Craigmyle, L.||Hornsby-Smith, B.||Stamp, L.|
|Cullen of Ashbourne, L.||Kilmany, L.||Strathcarron, L.|
|Daventry, V.||Kinnoull, E.||Strathcona and Mount Royal, L.|
|Davidson, V.||Lindsey and Abingdon, E.||Swansea, L.|
|Denham, L.[Teller.]||Long, V.||Swinfen, L.|
|Digby, L.||Lucas of Chilworth, L.||Swinton, E.|
|Dormer, L.||Lyell, L.||Torphichen, L.|
|Drumalbyn, L.||Mackay of Clashfern, L.||Trefgarne, L.|
|Dudley, E.||Marley, L.||Trenchard, V.|
|Eccles, V.||Monson, L.||Tweeddale, M.|
|Ellenborough, L.||Morris, L.||Vivian, L.|
|Elliot of Harwood, B.||Mottistone, L.||Young, B.|
Resolved in the negative, and Motion disagreed to accordingly.
§ 7.40 p.m.
The DEPUTY SPEAKER(Viscount Hood)
My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts and Measure:
§ Deaconesses and Lay Workers (Pensions) Measure.