§ House again in Committee on Clause 1.
Lord Drumalbyn moved Amendment No. 3:
Page 1, line 11, after ("citizen") insert ("whether by birth in the United Kingdom, descent, adoption, naturalisation or registration").
§ The noble Lord said: The subsection as drafted indicates that there will be, after commencement, two ways of becoming British citizens at birth. The first is by being born in the United Kingdom of a British parent or British parents and by being legally settled in the United Kingdom; and, secondly, the offspring of parents who are not British citizens are to be British citizens if they are born in the United Kingdom and their parents are settled in the United Kingdom.
§ I am sure my noble friend is aware—certainly this was expressed in the British Nationality White Paper—that there is considerable concern among what one might call second generation British citizens; that is, those who are born abroad of British citizens and whose children, the third generation, would not be able to transmit their British citizenship to their children. There is considerable concern about this and we shall of course be returning to that subject when we come to the whole question of being born abroad, but Clause 1 deals with people who are born in Britain.
§ Following on the Division we have just had, it would be absurd to confer British nationality on everyone born in the United Kingdom; whether their parents wanted it, whether they had any connection with Britain, whether they were going to be brought up in Britain, and even if by pure chance the child was born in Britain perhaps prematurely or because its parents were delayed in transit through Britain. While that would be absurd, it would be equally absurd if British nationality were to be denied to children born in the United Kingdom to parents who happened to have been born abroad themselves, and so are British 647 citizens "merely" by descent—they would be rather second-class British citizens—but who, for all that, are desperately, possibly even fiercely, anxious that their children should be British citizens.
§ Subsection (4) enables a child born in the United Kingdom who was not a British citizen at birth, because his parents were British citizens merely by descent, to become a British citizen by registration after reaching the age of 10, provided that in the first 10 years of his life he has been absent from the United Kingdom for only 90 days in each year. If I read that subsection aright, it means that after his 10th birthday, he could safely go and live abroad and could claim his British citizenship whenever he chose to come back, even if by that time he was a citizen of some other country. I should like to know if that is a correct interpretation of the provision; it seems to be so.
§ Subsection (3) provides another avenue for British citizenship, through the child's father or mother becoming a British citizen after commencement—for example, through settlement or residence under Clause 6 or naturalisation under Clause 5—always on condition that the application is made for the child to be registered as a British citizen while he is still a minor. So far so good, but what I should like to be reassured about is that by one way or another, all children born in Britain of British parents, whatever their race, colour or religion, can become British citizens provided their parents want them to be. It seems to me that the mere fact that the parents have ensured that the child was born in the United Kingdom, even though neither of them was—or perhaps I should say particularly because neither of them was—born in Britain, should entitle the child of a British citizen by descent to be a British citizen from birth. I hope my noble friend will be able to satisfy me that under the Bill they are already so entitled and that, if not, he will at least consider how to ensure that they will be so entitled before the Bill leaves your Lordships' House.
§ What I am aiming at is that subsection (1) should express clearly what is the scope and compass of the phrase "British citizen" as well as the phrase "settled in the United Kingdom". As the meaning of the word "settled" is the subject of the next two amendments, I shall not pursue that, other than to say it would be unfortunate if no clue were given of the meaning of the word "settled" at the very outset of the Bill. I suggest that the same applies to the phrase, "British citizen". I know that the expression "British citizen by descent" is already in use, but if I am not mistaken, it is mentioned for the first time almost casually in Clause (2)(1)(a) and then in Clause 3(6) and is not defined until Clause 13. Surely there should be at least a pointer in Clause 1. That is in a sense a drafting point, but a more than usually important one, for if a false impression is given at the start of the Bill, it could have consequences from the point of view of the way in which people will regard it, and that false impression would be very difficult to remove.
§ My main point is that the children of British citizens by descent should from birth be British citizens if born in Britain. I cannot believe it is satisfactory to declare in Clause 1 that a person born in Britain whose parents are British citizens—or one of whom at any rate is a British citizen—shall be a British citizen, and then to 648 qualify that statement later by saying that it applies only if the parents are British citizens by descent, and that if they want their children to be British they must come back and live in Britain, and do that right away. I want to know whether, if they are in Britain and the child is born in Britain and they are British citizens by descent, that child will be a British citizen without qualification.
§ Lord Renton
Apart from the point of substance which my noble friend Lord Drumalbyn has raised about citizenship by descent, with which I have great sympathy, his amendment should appeal to the Committee as a matter of improving the drafting and presentation of the Bill. It has been said—I have said this myself—that this is a Bill which has been unnecessarily misunderstood, and of course one cannot have Bills drafted in such a way that they are always certain of legal effect and at the same time be abundantly plain to lay people. I see the noble Lord, Lord Mishcon, on the Opposition Front Bench smiling at that; I think he is smiling in agreement, having full knowledge of that. There are, however, times when, without impairing the legal effect, and perhaps indeed giving greater clarity to it, we can make an amendment to a Bill which also makes it more easily understood by people at large. The amendment of my noble friend Lord Drumalbyn does just that. It is placed at this strategic point in the Bill—the very first subsection upon which a great deal else in the Bill depends—and I think that if we were to spell out in the way he has suggested the ways in which one can be a British citizen, that could only be an advantage.
§ 8.10 p.m.
§ The Lord Advocate (Lord Mackay of Clashfern)
The substance of the matter that has been raised by my noble friend's amendment is the question whether the phrase "British citizen", where it occurs in Clause 1(1), includes British citizens by birth, descent, adoption, naturalisation or registration. To that question of substance, the answer is clearly, "Yes". The phrase "British citizen", as it is used in the second line of the Bill, includes British citizens by all methods by which it is possible to become a British citizen under the Bill, and I am greatly indebted to my noble friend for giving an opportunity for me to say that as clearly as I can. It follows that the differences between the various ways in which one can attain British citizenship are of no importance so far as the citizenship of a child born to that person in the United Kingdom itself is concerned.
The next question is whether it would be an improvement as a matter of drafting to extend the phrase "British citizen" in the manner proposed in my noble friend's amendment. This is obviously a question which we have tried to consider carefully, and the phrase "British citizen" occurs not only here but in many other places in the Bill. Therefore if one is going to elaborate upon it here so as to make it clear that it includes all the methods by which citizenship can be attained, the same would require to be done in every other place where it has the same meaning: otherwise one would be ready to conclude that in a later place where that amplification is not given there is a distinction and some restriction of British citizenship is required.
649 The distinctions that are made are made only where they are relevant, and Clause 2(1), to which my noble friend Lord Drumalbyn referred, is one of these where the distinction is taken in respect of a child born outside the United Kingdom to a parent who is a British citizen otherwise than by descent and, of course, a parent who is a British citizen by descent. So the distinction is taken where it is relevant and a qualification is then put in on the British citizenship that is in question.
I therefore say to my noble friend Lord Renton, who I know is a great expert in these matters and takes a great interest in the clarification of our drafting—and we do our best to follow the good advice which his committee gave on this matter—that I do not feel in this instance that it would be an improvement on the drafting, for the reason, as I have said, that the phrase "British citizen" where used in the Bill without qualification covers all the possible ways in which that citizenship can be attained. I hope that in the light of that explanation my noble friend will feel able to withdraw his amendment.
§ Lord Renton
My noble and learned friend the Lord Advocate has raised an objection that if these words proposed by my noble friend Lord Drumalbyn were inserted here at this point where he suggests, they would have to be inserted forever after wherever the phrase "British citizen" appears in the Bill. I do not accept that. If the noble and learned Lord the Lord Advocate really feels that that is a difficulty, it is one which is easily overcome by adding, after the words which my noble friend Lord Drumalbyn proposes shall be inserted, something to this effect:and wherever the expression 'British citizen' is used hereinafter, it shall be deemed to include those circumstances"—or something like that. I am not drafting but only paraphrasing what the draft might be. In other words, by inserting at this point a clear indication that the expression "British citizen" would always be qualified or, as it may be, comprehensively described within the terms of the amendment of my noble friend Lord Drumalbyn, we should gain the advantage of having this clarification at this early stage of the Bill without the disadvantage of having to repeat it every time the expression "British citizen" was used.
§ Lord Geddes
I strongly support the words of my noble friend Lord Renton and also the phrasing of the amendment put down by my noble friend Lord Drumalbyn, if for no other reason than that among the words just given by my noble and learned friend the Lord Advocate, in Clause 2(1)(a) immediately there is a variation on the theme of the definition of "British citizen" where it says "otherwise than by descent". I would suggest to your Lordships that unless you have had a full definition of "British citizen" prior to that, you are floundering.
§ Lord Avebury
As this may be the only opportunity I shall have during the whole of this Committee stage to agree with the Minister, I think I should say just one or two words in support of the status quo. It seemed to me that the words proposed to be added to the Bill would create serious complications not only 650 in the way mentioned by the Minister, necessitating including the same reference wherever "British citizen" occurred, but also, when the noble Lord, Lord Renton, tries, off the cuff, to deal with that objection, he is adding still more words to paragraph (a), which at present is plain and simple. Everybody can see if they read the Bill what a British citizen is and the various methods by which British citizenship may be acquired. The fact that in other parts of the Bill we discuss British citizenship of particular kinds—in Clause 2(1), for example, we are talking about British citizens otherwise than by descent—makes it absolutely clear that when we speak of "British citizen", pure and simple, we mean however that status may have been acquired. So I very much hope the Committee will see fit to leave the Bill as it was and to reject this amendment.
§ Lord Mishcon
If I may follow the line of courteous discussion that is taking place, I hope this will be the only time when I shall disagree with the noble Lord, Lord Avebury. I confess that I have not really had time fully to consider the implications. Obviously I am taking for granted now, as one has to do, that Clause 1 stays as it is. But if you are looking at the Bill and you want to know in what circumstances a child born in this country is entitled to British citizenship, I think it helps if you can see immediately that it is not just a British citizen by birth, as a requirement of one or other of the parents, but it is, as the amendment suggests, a British citizen who acquires that British citizenship in one of the ways set out.
One knows perfectly well that the noble Lord, Lord Renton, need be given only a couple of minutes and his drafting is absolutely perfect. If only we had given him a couple of minutes I am sure he would have done it. But really the matter is simple, is it not? The term "British citizen" shall bear the meaning given in the Bill, unless from the context it appears otherwise. In subsequent clauses it is apparent from the context that the term cannot have the specific meaning. Therefore I should have thought that there are advantages in the amendment. I have not had an opportunity to consider all the implications, but on the face of it what is proposed would appear to add clarity, certainly to the lay reader, who would then know what was encompassed in Clause 1(1). It would also give clarity to the rest of the Bill, unless the context makes it quite clear that the definition of "British subject" already given does not apply in the clause in question.
§ Lord Renton
There is yet another way of achieving the purpose, though it is nothing like so good as that already referred to. That would be to include something in the definition clause, Clause 49. But that would mean that it would be necessary—as I shall later propose in relation to the word "settled"—to have a reference to Clause 49. I hope that my noble and learned friend will not at this stage turn down this drafting proposal finally and out of hand. In view of what the noble Lord, Lord Mishcon, has said, I feel that, despite what the noble Lord, Lord Avebury, has said, there is here a matter worth considering. Even if I have achieved nothing else, I have got the noble 651 Lord, Lord Avebury, to agree with the Government on a drafting matter—and that is something.
§ Lord Mackay of Clashfern
Perhaps it would be right for me to congratulate my noble friend on that particular achievement, and I hope that the noble Lord, Lord Avebury, will agree with us further as he listens to the persuasive arguments that are to be put forward. It would be churlish now to turn down finally and out of hand proposals coming from such eminent quarters, and certainly I shall be very glad to consider further what has been said, to see whether we can improve the Bill. I must say that so far I have not been entirely persuaded that we shall achieve that objective easily, but we shall certainly try.
§ Lord Drumalbyn
I am extremely grateful to my noble friend for having made quite clear that the substance of what I wanted is already in the Bill. As to the rest of the matter, I appear to have thrown the helmet of discord among lawyers, and I am quite happy now to leave the matter to the lawyers to sort out. I am grateful to my noble and learned friend for saying that he will look at this question again. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 8.23 p.m.
Lord Aylestone moved Amendment No. 4:
Page 1, line 12, leave out ("settled") and insert ("ordinarily resident").
The noble Lord said: With the agreement of the Committee I should like to speak to Amendments Nos. 4, 8 and 10 together, since they all seek to do precisely the same thing. I seek to replace the word "settled" with the words "ordinarily resident". If members of the Committee turn to Clause 49 for the definition of the word "settled", they will find on page 42 of the Bill that
'settled' shall be construed in accordance with subsection (2)".
If one then refers to subsection (2) of the same clause, one finds the following:
Subject to subsection (3), references in this Act to a person being settled in the United Kingdom or in a dependent territory are references to his being ordinarily resident…".
So in fact the definition of "settled" is "being ordinarily resident". I heard what the noble Lord, Lord Renton, said at an earlier stage; the simpler we can make matters, the better. I propose that we replace the word "settled" with the words "ordinarily resident". It is clear what they mean. The word "ordinarily" is also used in Clause 3(8), where there is a reference to "ordinarily works". So there is nothing difficult about the word. I hope that the Government will consider whether it is possible to include the term in the three places that I suggest. I beg to move.
§ Lord Drumalbyn
May I ask my noble friend whether the words "ordinarily resident" do not themselves require to be defined? Is there any legal definition of the term? At what stage does a person become ordinarily resident? Does it at all matter that he has a home to which he returns for one month in each year? 652 Does that make him ordinarily resident? These are difficult problems. I hope that my noble friend will save me the trouble of moving the next amendment by agreeing to consider it along with the amendment that he has already said he will consider.
§ Lord Avebury
I should like to say a few words on the amendment, since it is important that people should understand what is the meaning of the word "settled" within the context of the Bill. This can make an enormous difference to their entitlement in a number of respects. We are involved here with an idea that is not universally understood. The case has arisen, and has been put to Ministers, of the person who might be absent overseas for a period which is within the 2-year time limit normally applied by the Home Office to returning residents. Does he then remain ordinarily resident? Does he remain settled for the purposes of the Bill or of any other legislation? The answer that has been given to that question by officials in the Home Office is that a person who has indefinite leave to remain in this country and who qualifies for re-entry as a returning resident, can remain settled here while being temporarily overseas, provided he remains ordinarily resident here. That seems rather circular, but that was the answer that the Home Office gave to a recent inquiry on this subject.
What I think is important from a practical point of view is this. A person has been here on conditions. He has had the conditions revoked, and so he has indefinite leave to remain in the country. He then goes overseas and is absent for, say, 18 months. At the end of that period he returns, so that he is within the 2-year period which, as I say, the Home Office applies by custom—I do not think that it is included anywhere in the innovaton rules—and which allows a person to come back as a returning resident. Meanwhile his wife, who has remained in the United Kingdom and who is not settled here, has a child. The important question is whether the child will qualify for British citizenship under the Bill. Judging from what the official said in answer to Mr. Ian Martin, the general secretary of the Joint Council for the Welfare of Immigrants, it seems to me that the person probably qualifies; but this needs to be spelt out during the Committee proceedings on the Bill, so that people know exactly where they stand in this respect.
§ Lord Elwyn-Jones
It would seem that it is not merely any Home Office designation that has made this matter circular. If one looks at the definition clause, Clause 49, one sees at the foot of page 42, in line 35 that,'settled' shall be construed in accordance with subsection (2)".When we then look at subsecton (2), eureka! what do we find? The subsection states:Subject to subsection (3), references in this Act to a person being settled in the United Kingdom or in a dependent territory are references to his being ordinarily resident in the United Kingdom…".If that is right, perhaps the suggestion of the noble Lord, Lord Aylestone, may not be necessary. But what troubles me is the considerable uncertainty involved in the words "ordinarily resident". It is notorious, the uncertainty in the construction of "ordinarily resident". It has different meanings in tax law, in divorce law and in immigration law. 653 I wonder whether the purposes of certainty are furthered by the amendment we are discussing.
§ Lord Belstead
This is indeed not a very easy problem, and I hope I can add to what has been said. I am genuinely grateful, not only to the noble Lord, Lord Aylestone, who moved the amendment, but also to Lord Avebury, who is conversant with these matters and to the noble and learned Lord and my noble friend who have spoken on this amendment. Incidentally, if the argument is circular it has not got such a bad pedigree. I think one of the few pieces of legislation which I am capable of remembering is that, if I remember rightly, the definition of "charitable purposes" in the Charities Act 1960 is,those purposes which can be said to be charitable"."Ordinary residence", as I understand it, is a question of mixed fact and law. It is not defined, of course, in the amendment moved by the noble Lord, Lord Aylestone, and I make no criticism of that because it is not defined in the Bill. That is because the Bill adopts the definition of "settled" which is used in the Immigration Act 1971, where the term is not defined, either. I think it is generally accepted that the concept of "ordinary residence" can be a difficult one, and it has not been interpreted by the courts, as far as I know, in a nationality context. In other contexts, however, I am advised the courts have held that someone present in this country is not necessarily ordinarily resident here. Conversely, someone who goes outside the country for quite long periods could be regarded as still being ordinarily resident.
This leads, of course, to the sort of situation which the noble Lord, Lord Avebury, has perfectly reasonably raised. He asks: What is the conclusion to be drawn? The advice that I have is that one thing one has to be certain about is that so far as ordinary residence is concerned it all depends on the facts that surround the case. If I may try to be a little more helpful in saying that, I would interpret that as meaning, inter alia, that it depends also on the intention of the person in the case.
The Government believe that this lack of clarity in the concept of "ordinary residence" is a more serious drawback on its own than when it is part of the wider concept of "settled". "Settled", speaking for myself, I find rather easier. "Settled" means, basically, ordinarily resident without being subject to restrictions under the immigration laws on one's stay. One can therefore be much more confident that if someone is free of restrictions on stay under the immigration laws he or she is in fact also very likely, if resident in the country, to be ordinarily resident. The amendment proposed by the noble Lord would omit this vital element of having to be free of restrictions on one's stay, and it would then become very much more difficult to say of someone who is subject to such restrictions whether or not he or she was ordinarily resident.
I must confess to the Committee that I asked, not very long ago, before we began this Committee stage, why it was not possible simply to kick over the whole mentioning of "ordinary residence" because it was so unclear, and just stick to the definition of "settled", which to me seems much clearer—that you have to be 654 clear of restrictions upon one's stay. But, of course, the definition of "settled", which relies on both "ordinary residence" and being clear of restrictions on one's stay, were included in the Immigration Act 1971, and really we cannot kick over that definition because, otherwise, we would be removing clarity and certainty from people who have known in the past that they were settled and would suddenly say to the Government, "But you are changing the whole definition". Really the definition therefore needs to remain the same in this Bill as it is in the 1971 Act.
For that reason I do not see how any change can be made in the definition of "settled". But if a change were to be made, with the very greatest respect to the noble Lord, Lord Aylestone, I do not think that this amendment would be the right way to do it. I would argue that the Government's approach is very much the clearer way; and it is also in principle, I think, better. The Government believe that there can be no real justification for conferring citizenship on people whose stay here is subject to restriction. They are here only temporarily, and have not been accepted under our immigration laws for permanent residence.
I have ventured to say to the Committee before today that I think the one real area of agreement between the previous Government and the present Government was that if the law of nationality were to be modernised we should make a close and continuing relationship with this country a qualification for a new British citizenship. The future of any children born to people who are here only temporarily would lie outside the United Kingdom, and this, I think, would not be the way to go about this. The amendment, by removing that part of the definition of "settled" which refers to restrictions upon somebody's stay but by retaining the less clear part of the definition which refers to ordinary residence, would I think not only be very unclear but, with respect, run wholly counter to one of the main purposes of this Bill.
§ Lord Mishcon
I make no apologies to the Committee for prolonging this discussion, because I know that the Committee feels that this is a vital part of the Bill. Having decided, as I said before, that this clause, certainly for the moment, remains as in the Bill, what we must do—and this is an essential purpose of us all—is to see that those who have this right, or those who have not got this right, know precisely where they stand. One of the problems that I have still, after having the Minister speak, is that this, it seems to me, is going to be in the purview of a civil servant to decide in the ordinary case, based on the facts as he sees them put in an application. Is this man ordinarily resident or is he not? There may be certain guidelines—we are not even in a position to see the guidelines at this moment, and we may not approve of them—but is the whole question of nationality to be decided in this arbitrary and very unclear way?
Listening to the Minister, I came to the conclusion—and he and other noble Lords may think that I came to the wrong conclusion—that if somebody is born in this country and one of the parents has an unqualified permission to be here, then without any doubt at all the parent who has that unqualified permission to be here has a vital connection with this country, otherwise 655 he would never have been given the unqualified permission. If one could therefore simplify this, in spite of what the Minister said, by saying that somebody born in this country has the right to British citizenship if either of his parents is a British citizen or if either of his parents has unqualified permission to be here, I would have said that you have the nexus then, you have the obvious connection with this country, which makes the thing certain beyond a peradventure and no longer at the whim, as I have said, of a perfectly honourable (I am sure) civil servant who may make quite the wrong decision on the facts.
§ Lord Drumalbyn
If I understood my noble friend correctly, he said that there were two elements to being settled, but there seems to be only one in the definition. Perhaps when we come to the definitions that would be an appropriate time to deal with the matter.
§ Lord Belstead
May I say that I owe my noble friend Lord Drumalbyn an apology. I am looking also at Amendment No. 5 in the name of my noble friend. Amendment No. 5 has a similarity with Amendment No. 6 in the name of my noble friend Lord Renton. I feel sure that my noble friend will be moving that amendment; therefore probably my noble friend Lord Drumalbyn will have two bites of the cherry. While on my feet, and subject to any correction, may I say that I feel that the definition of "settled" has two limbs to it. The first limb is being ordinarily resident and the second limb, which goes with it, is being not subject under the immigration laws to any restriction on the period for which the person may remain.
§ Lord Hylton
The noble Lord, Lord Mishcon, has referred to questions of whether a person is settled or not being decided by civil servants. Could my noble friend the Minister say whether Clause 1(1)(b) could be decided in a court of law, bearing in mind the definition to which he has already referred in Clause 49(2) and bearing in mind also that there is a question of a person's intention and certain other facts and legal matters to be interpreted?
§ Lord Avebury
While the Minister is thinking about that, I believe the question of whether a person is or is not ordinarily resident here is amenable to a decision of the courts. There is a case which I requested him to look at, Regina v. Immigration Appeal Tribunal, ex parte Manek, where judgment was delivered on 5th May 1978. It was in The Times Law Report of 9th May 1978. It is an important case because it was decided by the Master of the Rolls that the person in question, although she had left the United Kingdom nearly a year before, was nevertheless both ordinarily resident and settled. It was that case which was quoted by officials in the context of the question about absence from the United Kingdom and which I wanted to get more confirmation on than the Minister so far has given. I do not think we want this Bill to result in a lot of litigation. That is the answer to the noble Lord, Lord Hylton.
If it were possible to clarify the meaning of the term "ordinarily resident", in particular about the case of these individuals to whom I am referring, the person 656 who will be a returning resident, who has been absent from the United Kingdom for a shorter or longer period but who has left behind a wife here who subsequently gives birth and has not herself the qualification which is required under the Bill. Her husband has. He is absent temporarily from the United Kingdom but he is due to return. Then there will be the question of deciding whether or not at the time of birth he was still ordinarily resident. As the Minister has said, this is partly a question of fact and partly one of law. Does the man have the intention of returning? That is decidable in the course of time by whether he exercises the right of return within the two years. If we do not seek to write into this Bill more information about the circumstances in which a person can be deemed to be settled, notwithstanding his temporary absence from the United Kingdom I am afraid, as the noble Lord, Lord Hylton, has just said, that we shall be leaving a lot of work for the courts to do in the future.
§ Lord Belstead
I do not think that at this stage I can add to what I have said. The question which my noble friend Lord Hylton has asked has been answered by the noble Lord, Lord Avebury. The only thing that I would add is that I sought to explain why, in the Government's view, we cannot change horses in midstream. We have got the definition of "settled" in the 1971 Immigration Act. It is that definition which has been reproduced in Clause 49(2) of this Bill. That is the reason why we have gone about it in that way. Of course I will look carefully at what has been said in this debate, but that is not the same as saying that I am looking at it with a view to making a change. I will seriously look at it and ask members of the Home Office to look at what has been said, because this is important. I am sure that the noble Lord, Lord Aylestone, will not mind my saying that the one thing that I am certain about is that, with respect, I do not think this amendment is right. This amendment removes what is certain in the definition of "settled" and leaves us with the greyer area. That would not be something that the Committee would want to do.
§ Lord Aylestone
I started off this amendment with the idea of simplifying it for the lay mind. I have succeeded in making it more difficult for my own. I have listened to the lucid explanation of the noble Lord on the Government Front Bench. I am persuaded by what the noble Lord, Lord Drumalbyn, has said, that we ought to look again at the definition of "settled" and perhaps of "ordinarily resident" when we reach Clause 49. In the circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 8.46 p.m.
Lord Drumalbyn moved Amendment No. 5:
Page 1, line 12, at end insert ("within the meaning of section 49 of this Act.").
§ The noble Lord said: Amendments Nos. 5 and 6 are the same in meaning. I do not know whether my noble friend will be willing to discuss the two together.657
§ Lord Drumalbyn
In that case, may I say why I did not put down the words that he put down. It was because I thought that Section 49(2) falls short of a definition. That is why I put down the words that I have. I beg to move.
§ Lord Renton
My noble friend Lord Drumalbyn and I are each trying in our similar ways to make a further attempt to improve the clarity of Clause 1(1). It so happens that in spite of the discussion that we have just had, I feel bound to point out that when we come to Clause 49 the definition of "settled" requires nearly a whole page of description. It is in subsection (2), subsection (3) and subsection (4) of that clause; and it occupies nearly a whole page. As my noble friend Lord Drumalbyn pointed out, we shall have to discuss that, when we come to Clause 49. But whatever the contents of that Clause will be when we have done so, it would surely be a good thing to give a guiding light forward at this stage. I naturally prefer my own amendment to that of my noble friend because my own amendment is a bit shorter; but they are of exactly the same effect. Therefore I do not know whether it is right to say that I support him, but I think he is on the right lines.
§ Lord Avebury
There is one problem that I mentioned on Second Reading which the noble Lord, Lord Belstead, may recall. That is the position of refugees. A person who comes here as a refugee normally lands and makes application to be treated as a refugee, and then as much as two years may elapse before the Home Office arrive at a decision on the matter. The noble Lord may have seen the case reported in the Observer the week before last of a Pakistani citizen, Brigadier Usman Khalid who fled from Pakistan because he considered the rule of the Generals was subverting the constitution. He arrived here and was admitted. He made application to the Home Office for refugee status and now, something like 20 months later, the brigadier's case is still being examined by the Home Office. He is not settled in the United Kingdom. He is not ordinarily resident here. There are many people in the same kind of position. The Home Office may take a longer or shorter while to process these cases but at any one time there may be many dozens of them before the Minister awaiting decision. They come from all over the world. They may come from Eastern Europe; they may come from Pakistan or Latin America. I do not say that this is a very large number at any one time; but to the people concerned it may be of vital importance if they have children in this country that their children's status shall be determined. If they are not ordinarily resident, not settled within the meaning of Clause 49, then the children will be in a type of limbo. If they remain here for as much as 10 years, then they will qualify under another part of Clause 1. Particularly with refugees who may have suffered greatly in their countries of origin and come here hoping to find peace and security, it is absolutely essential that right from the start their children are given the same privileges as if they were British citizens. I hope that when we consider the references to Clause 49 we might make some modifications so that the position of refugees is fully taken into account and that their children are accorded the 658 privileges that we are conferring on those who are born British citizens under the Bill.
§ Lord Bowden
May I raise a comparable question not about the political refugees but about the kind of migrant worker who is much more common in Europe than here? It is notorious that Mercedes cars are built by Turks and that the whole of the Swiss building industry is run by Italians. These people move from place to place in search of work and in search of livelihood. They often find themselves deprived of any form of civil rights. As I understand it, they have no opportunity to become citizens themselves. They have no rights under the law except the very crudest and if there is any form of unemployment they will be sent home.
The German economic miracle has been caused in effect by the fact that they have been able to import millions of Turks, keep them while they could work and ship them home again. We have never adopted a system of that kind. It seems that our membership of the Common Market and this particular change in the law governing citizenship may make this problem much more important that it has hitherto ever been.
I should like to ask the Minister whether the rights of citizenship and all other civil rights of what the Germans call the Gastarbeiter have been considered and, if so, how far they affect such a thing as the status of ordinary residents? Labourers may come from Turkey and spend a couple of years in Germany and then be sent abruptly home when the work that they were doing is no longer available to them. What would happen here? Is there any possibility that our law may be moved closer to that obtaining in Europe? If so, has its effect been allowed for in this Bill and particularly the clause that we are now discussing?
§ The Duke of Norfolk
That is exactly what I was talking about. The Gastarbeiter, if they come here and have children, should not become British citizens. I have the greatest sympathy for anybody suffering from tyranny; but the Gastarbeiter must not be allowed to become British citizens. That is why jus soli was wrong. My answer to the noble Lord opposite is that the Gastarbeiter must be a citizen from where the arbeiter came from, from the country he quoted.
§ Lord Hylton
Is it not entirely wrong to invite workers into one's country for however long a period—let us assume it is at least six months or a year—and then deny them rights of voting and many other civil rights?
§ 8.55 p.m.
§ Lord Belstead
We began this amendment with a requirement that the insertion should be made in Clause 1, page 1, line 12 that "settled" is "as defined in section 49". If I may address myself to that first, this is really the effect of both Lord Renton's and Lord Drumalbyn's amendments. The difficulty is that the term settled appears in the Bill many times. It is not only used here in Clause 1(1). It appears again both later on in this clause and in other clauses of the Bill. Every time that it appears it has the same meaning and it is this meaning that is set out in Clause 49(2). But it seems to us that this identity of meaning might 659 not be so clear if the term "settled" in Clause 1(1) alone were to be followed by a reference to the definition in Clause 49. Readers of the Bill might then be in some doubt about what the meaning was when the term "settled" appeared again. I put this to my noble friends for their consideration. May be they will not agree but that is the feeling that we have about it at the moment.
We are on a point which to me is an easier one than the one to which my noble and learned friend the Lord Advocate replied; namely, the amendment which my noble friend Lord Drumalbyn put down about the definition of British citizen. There was no definition in the interpretation clause of a British citizen. In practice, I did not think that any great difficulty should arise for readers of the Bill because they turn to the interpretation clause, Clause 49, and there they will see the definition.
I was intending to endeavour to say something about the definition of "settled" but the lengthy discussion we had on the previous amendment obviates any necessity to do that again. My noble friend Lord Renton quite rightly pointed out that the definition of "settled" in Clause 49 is not quite as straightforward as I was making it out 10 minutes ago when I ventured the view that it had two limbs and the two limbs relied on the interpretation of "ordinarily resident" and "being here without any conditions on your stay".
There is more to it than that. There are some complicated parts in subsections (3) and (4) of Clause 49. Subsection (3) deals essentially with those entitled to diplomatic immunity or members of visiting armed forces and the like who are exempt from immigration control by virtue of Section 8 of the Immigration Act 1971. This subsection in Clause 49 provides that such people are not to be regarded as settled for the purposes of the Bill. Children born to them here therefore will not be British citizens. A proviso of this kind is necessary to ensure that we do not confer our citizenship automatically on those born here to diplomats and people of visiting forces who come here as official representatives of their Governments. This is in accordance with international practice. As I understand it, our own people in the same way have the same treatment when they go abroad.
Subsection (4) is a saver which says "however, if you are a junior member of the staff recruited in this country and working in a diplomatic mission then subsection (3) does not apply to you and you fall within the terms of the definition". Having said that, may I come back to the main point. My noble friend Lord Renton, who knows so much more about drafting than I do, may disagree, but I have ventured to set out the reasons why we would prefer to rely upon the interpretation clause and not put in a definition of "settlement".
May I try to reply to the two questions which were asked? The noble Lord, Lord Avebury, asked me about refugees. They are normally subject to conditions of stay for four years; but not, incidentally, the Vietnamese refugees, who have been admitted for settlement upon arrival. Under normal conditions, they have to have stayed here for four years, so they would not be settled until the conditions were lifted 660 then. When conditions are lifted on a refugee under Clause 1(3) of this Bill, the refugee's children will be entitled to be registered as British subjects.
The noble Lord, Lord Bowden, raised the question of migrant workers. Migrant workers do not normally have restrictions on their stay removed until they have been in approved employment for four years. They are one of the categories admitted, initially at least, only temporarily—and if I may venture a view, I believe that is not unreasonable.
Finally, there was the question put to me by the noble Lord, Lord Hylton. My noble friend asked whether it was not wrong that workers should be invited into a country and then prevented from having civic rights. One of the important things that were said by my right honourable friend the Minister of State, Mr. Raison, in the other place, and he has said it on several other occasions, was that this Bill does not deal with a statement of civic rights. The reason is simple. It is because the rights of citizens are set out in such a mass of different pieces of legislation; it is for that reason that one does not find a statement of civic rights in this Bill; this Bill deals with nationality, but it is, of course, from nationality that civil rights flow in other pieces of legislation.
§ Lord Renton
I am grateful to my noble friend for his explanation. He has raised a point very similar to that which was raised by the noble and learned Lord the Lord Advocate on the previous amendment. The more that one thinks about this drafting problem—speaking for myself anyway—the more one feels like suggesting that the draftsman should be asked to insert a new subsection (2) to follow subsection (1), to cover the point that was made in Amendment No. 3. So far as Amendments Nos. 5 and 6 are concerned, the point could be covered by wording such as this:The term 'settled' shall in subsection (1) and wherever else it is used in this Act have the meaning given to it in Section 49".May I leave that with the noble Lord the Minister and the draftsman?
§ Lord Belstead
I am grateful to my noble friend. I certainly give an undertaking that I shall make it my business to consult the parliamentary draftsman, and I think this is a point on which I should get in touch with both my noble friends.
§ Lord Drumalbyn
I am much obliged to my noble friend the Minister. Before withdrawing the amendment could I just comment that when my noble friend the Minister said that he did not see any point in putting in the signpost that I was suggesting here, he gave as the reason the point that has been picked up by another noble friend, Lord Renton, that the use of the word "settled" is the same throughout the Bill. It seems to me that that is exactly the reason why the signpost should be put in. If there was any doubt and the word "settled" was being used in different ways in different parts of the Bill, then that would be a good reason for not putting in the signpost. May I ask my noble friend to take that into account also when he comes to examine this point with the draftsman? With that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 6 not moved.]661
§ The Deputy Chairman of Committees (Earl Cathcart)
In calling Amendment No. 7, I should point out that if this amendment is agreed I cannot call Amendment No. 8.
§ [Amendments Nos. 7 and 8 not moved.]
§ The Deputy Chairman of Committees
In calling Amendment No. 9, I should advise your Lordships that if this amendment is agreed I cannot call Amendment No. 10.
§ [Amendments Nos. 9 and 10 not moved.]
§ The Deputy Chairman of Committees
In calling Amendment No. 11, I should advise your Lordships that if this amendment is agreed I cannot call Amendments Nos. 12, 12A, 13, 13A, 13B, 14, 14A and 15.
§ [Amendment No. 11 not moved.]
§ The Deputy Chairman of Committees
In calling Amendment No. 12, I should advise your Lordships that if it is agreed I cannot call Amendments Nos. 12A, 13, 13A, 13B, 14, 14A and 15.
§ 9.5 p.m.
Lord Aylestone moved Amendment No. 12:
Page 2, line 12, leave out from ("citizen") to end of line 16 and insert ("to be registered as such a citizen.").
§ The noble Lord said: The Bill as it now stands means that a child over 10 years of age may be registered as a citizen provided that the Secretary of State is satisfied that the child has not been absent for 90 days in one of the first 10 years. My amendment seeks to ensure that child to become registered as a citizen without any reference whatsoever to the Secretary of State's discretion, and that the child, at the request of the parents and on application by the parents, could be registered as a British citizen from birth if they so wished. I beg to move.
§ Lord Belstead
This amendment would give anyone born here after the commencement of the Bill who did not become a British citizen at birth an unqualified entitlement to British citizenship and the right of abode in this country—an entitlement which he or she could exercise at any time. This amendment would restore a form of jus soli almost in the way that it was before we began to debate Clause 1. We have discussed all that and I will not reiterate the views which I endeavoured to put then. The noble Lord may say that I am not being entirely fair and that this amendment avoids the drawbacks of the jus soli in its full form. After all, those born here who do not acquire British citizenship at birth would, under the amendment, have to make an application for that citizenship. They will have to do some positive act to take up British citizenship and will not, as it were, have it thrust upon them.
But the entitlement, which the noble Lord would write into the Bill by this amendment would be drawn very broadly indeed. Nothing would be demanded of an applicant beyond showing that he was born here and did not become a citizen at birth. It is reasonable to assume that such a broad avenue to citizenship 662 would attract very many applicants, including many who had no connection with this country but wanted the convenience of British citizenship and the right of abode here—a citizenship and the right of abode which they could transmit to their children born abroad. I have to say bluntly that the additional immigration commitment which would flow from this is something which would cause very great concern to the Government.
Moreover, this entitlement could be exercised as soon as the child was born. It would be most attractive to the parent, who was here in breach of conditions or illegally and wished to defer removal, to put forward an application for his or her child born here to acquire British citizenship here and to press that, pending a decision on the application, proceedings for removal should be deferred. I know that I am sounding very suspicious in saying those things, but may I just remind your Lordships that the whole point of subsection (4), which we have now reached—the 10-year period offered—is to catch the compassionate cases, the people who have not, for some reason which one would not necessarily be able to foretell, been able to qualify under Clause 1(1), in that one of the parents was a British citizen or settled in the United Kingdom, or that either the father or the mother had become a British citizen or had become settled in the United Kingdom under Clause 1(3), and had to fall back on this extra facility which is being offered.
The noble Lord, Lord Aylestone, referred to this as being a discretion. With respect, it is not; it is an entitlement. This is most important. Subsection (4) gives an entitlement to someone, after being here for 10 years, to apply for British citizenship. If the Secretary of State refused that entitlement, that would be something which would go to the court. If the court found that the Secretary of State had been unreasonable on matters of fact, there would be no discretion in it; the court would, quite rightly, find in favour of the applicant.
The Government accept that a child born here to a parent who has no connections with this country should be able to secure citizenship if real links with this country can be said to develop. We have, therefore, provided in Clause 1(3) that such a child will, while a minor, be entitled to British citizenship if either the mother or the father becomes a British citizen or becomes settled here. We have also provided in the subsection, which this amendment seeks to alter, for the 10-year period. But we do not think it would be right to go beyond this in the way that the amendment proposes. The amendment would virtually nullify the restraints on the jus soli which are in Clause 1(1) and which we feel are amply justified, if British citizenship is to reflect a real link with this country and, by virtue of that link, to carry with it the right of abode. It is on those grounds that I feel I must resist the noble Lord's amendment.
§ Lord Aylestone
I accept what the noble Lord has said, that this is, in a sense, a watered-down part of jus soli. But that was my intention. I wanted to make it possible after the birth of a child, after the commencement of the Act, for any parent, on behalf of the child, to register the child as British if he or she so I wished, without going through the procedures which the 663 Minister regards as safeguards. But in view of the Minister's clear view on this and the attitude he has taken, I shall think again between now and Report stage. At this stage, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.13 p.m.
Lord Pitt of Hampstead moved Amendment No. 12A:
Page 2, line 13, leave out ("ten") and insert ("five").
§ The noble Lord said: I begin by telling the Minister that I do not intend to divide on this amendment, but I beg the Government to think again on the question of the term. I know that during the Committee stage in another place three, five and seven years were suggested and rejected. My reason for choosing five years is that that is the age when children go to school. Parents are accustomed to doing things for their children at the age of five. The likelihood of a parent registering a child at that age is quite strong. This could obviate some of the difficulties that are envisaged for people applying for citizenship long after the time when they could have had it. It is difficult for them to provide the material to prove that they are entitled to citizenship. That difficulty would be obviated because when the parents go to the school the head teacher will ask them whether they have registered and, if they have not registered, will advise them to get a form from the Home Office to register their child. The parents would do that. I am not going to divide the Committee, but I should like the Government to give careful thought to this point.
§ An additional reason is that a Commonwealth citizen who is resident here is entitled to register after five years; so five years is a period of time to which people are accustomed. It is not only a question of children going to school at the age of five. A five-year period is also very convenient because people know that after they have lived here for five years they can register. Therefore five years is the optimum period if you are to reduce the difficulties which are envisaged in this clause.
§ I know that this clause is a well-meant concession, but there are inherent difficulties in proving that a child has lived here for 10 years. There may be difficulty in proving that a child has not been away from this country for more than 90 days in any one of the 10 years. If it were a period of five years I think we should reduce that difficulty, simply because at the age of five people do something about their children. That is the age at which they go to school. Therefore, it is the right time to invite them to register. I am not going to push the Government tonight because I want them to think about this point. I shall bring it back at Report.
§ While I am on my feet, may I deal with the other amendments, in particular Amendment No. 14A. The point about Amendment No. 14A is that to insist on an exact period of 90 days in each year would cause a great deal of difficulty. When this point was raised in another place, the Minister pointed out that people can have two periods of 90 days; therefore it can be stretched to 180 days. However, it depends upon their birthday. It would be difficult in family terms. If 664 the Government were prepared to accept my amendment, that it should be an average of only 90 days, I should be quite prepared to add a proviso that no absence should be for longer than 180 days. I should be quite happy to meet the Government in that way.
§ To say that people cannot be away for longer than this rigid period of 90 days will create difficulties. We have here many children from the Asian sub-continent. A child with a tendency to bronchitis may benefit from a few months in Bangladesh; then it could come back and would not suffer from frequent coughs and colds. If anybody wanted to do that, this 90-day period could be a difficulty. I am prepared to concede that an average of 90 days should be accepted only if a specific absence is for not more than 180 days. Then children can be sent to their families because of asthma, bronchitis and other reasons. Or it may be that the parent of the child is ill. The mother may wish to send her child to her own mother or sister to be looked after for a period. If we insisted upon a rigid 90-day period we could create hardship for people in that situation.
§ I am sure that the Government want to be helpful, but they have probably not thought out this point very thoroughly and I invite them to think again. My view is that if we have an average period of five years and allow for a maximum, we shall meet many of the difficulties.
§ Lord Elwyn-Jones
I hope the noble Lord will be able to take a sympathetic view of this matter, particularly the first amendment. As I have discovered from a number of grandchildren recently, five years is indeed a turning point in a child's life. It is the year of admission to an infants' school proper, and therefore it is valuable and gives an element of certainty if, at that stage, its citizenship could be and should be established. In regard to Amendment No. 14A, similarly I think hardship, which could well arise, could be avoided, while fulfilling the objectives of the Government in this matter, if my noble friend's amendment could be accepted.
§ Baroness Trumpington
On the face of it, the noble Lord's amendment has great appeal, but unless things have changed, when my child went to school he went in his fifth year. That meant that, as his birthday was on the 31st August, he was four years old, his fifth year starting on the 1st September. He went to school when he was four and about 10 days-plus. He was in his fifth year when he started school. It is not as easy as the noble Lord, Lord Pitt, has made out. It is not a question of going to school on your fifth birthday. I hope I am right in saying that this is still the case. I fear that the position is much more complicated than the noble Lord anticipates. He has already said that he is not going to divide the Committee but, much as it sounds a quite sympathique amendment, I could not support it for the reasons I have given.
§ Lord Avebury
I wish to support the noble Lord, Lord Pitt, in this amendment, for several purely practical reasons which I will attempt to outline. I accept the point made by the noble Baroness that the child's entry into the infants' school does not necessarily precede the fifth birthday and therefore the formalities 665 of application to be carried out under the clause, as the noble Lord, Lord Pitt, would have it amended, may not have been completed by the time the child enters school. But I think the important point he was trying to make was that once the child enters school that is something of a watershed in the child's life, and at roughly the same time, if not at exactly the same time, one would hope that his future citizenship could be determined once and for all. Even if it is some months after the child first enters school, the two events would be more or less contemporaneous. I think that was the sense in which the noble Lord was suggesting that it should be five years.
I want to put forward some considerations as to the kind of people who would benefit from this concession. The categories of persons who may give citizenship to their children purely by the lapse of time are not British citizens, and they are not persons who have settled here; they are either people who are here on conditions or they are illegal entrants or overstayers.
The principal category of persons here on conditions for any length of time is of course the student, and the student who comes here to take a university degree normally remains either for three years or, at the most, four. There may be a few students—and they must be wholly exceptional and extremely fortunate in this day and age, when we consider overseas students' fees—who remain after the first degree and go on to do a PhD; then they might be in the United Kingdom for as much as five years. But if they bring their spouses with them and have a child more or less immediately after they enter the United Kingdom, the child will still not have attained the age of five years by the time they have completed their studies and they leave. So if one of the purposes of the Government in designing this nationality legislation is to prevent students from transmitting British citizenship to children born while their parents are undertaking a course of studies here, and when they have the intention of going back overseas at the end of it (which of course they are obliged to do under the immigration rules) that intention would have been accomplished if this amendment were to be accepted.
Turning to the illegal entrants and the overstayers, any person in that position who formulates an application for his child to be registered as a British citizen is bringing himself to the attention of the authorities. He is unlikely to do so, therefore, for the purpose of conferring citizenship on the child, if he thinks that as a result of notice being taken of his presence here he himself will be declared an illegal entrant and will be removed back to his country of origin. So I do not believe that whether the period is five years, 10 years, or whatever other periods were suggested in the Committee stage in another place, it would make any difference to him. By requiring the parents' request for registration of the child you are making it virtually certain that the person who is not here lawfully will not seek to make such an application. So, from their point of view, I do not think it makes any difference whether it is five years or 10 years.
Finally, I think what is required above all in citizenship is certainty. To allow a period as long as 10 years to elapse before a child can have citizenship determined is very unsettling for the whole family, Therefore, other things being equal, we should make the period as 666 short as possible. For the practical reasons that I have suggested five years would be quite sufficient for the purposes of the Government, and I hope the amendment moved by the noble Lord, Lord Pitt, will be found acceptable by the noble Lord, Lord Belstead.
§ Lord Hylton
Earlier today I indicated support for Amendment No. 12A and consequential ones. I hope the Government will consider this not only very carefully but very sympathetically. The noble Lord, Lord Pitt, moved this in the most persuasive way. I would only add this. It is surely desirable from the point of view of the child that these matters should be cleared up while the child is still in the primary school and before he is moved on to a secondary school.
§ Lord Belstead
I am grateful to the noble Lord, Lord Avebury, on one point. The noble Lord put with absolute clarity for the benefit of the Committee the people whom we are actually talking about in this subsection (4). If I may in a few words repeat what the noble Lord said, we are talking about people who have still got conditions on their stay, or they may be illegal entrants or they may be overstayers. Therefore, we are not talking about people who have been able to claim citizenship for a child because one of the parents is a citizen, under Clause 1(1), or can say quite definitely that they are settled, under Clause 1(1), or who have become citizens or become settled since the children began to grow up, under Clause 1(3). We are not talking about those people at all. We are talking about the people the noble Lord has identified.
The purpose of subsection (4) is not to try—as I think the noble Lord was suggesting—in a sense to count off the days until the 10 years is up and then the Home Office say, "That is a good thing; we are going to get rid of those people". That is not the case. The whole idea of the Government in drafting subsection (4) was to save the compassionate cases where the parents really thought they were settled and found that by a decision of the courts they were not, or maybe more likely, that the child is beginning to grow up and as the years go by the child is beginning to think, "I am here for all time and my parents are here for all time". Then the child does not realise it, but the parents ought not to be here at all. Here again there is a compassionate avenue for being able to pick that child up and allow citizenship after the period of 10 years.
The noble Lord, Lord Pitt, indeed most persuasively argued the case for a five-year period. We have chosen the 10-year point in Clause 1(4) for a reason which I think I ought again quite bluntly to refer to. It is because the Government would not wish to insist on the deportation of a child born here who had lived here for 10 years. If the child's parents were here subject to conditions of stay or in breach of immigration control, those problems would normally have been resolved one way or another during the 10-year period.
A shorter period—I cannot agree with the noble Lord, Lord Avebury—would definitely be unsatisfactory. In saying that I am not trying to say that I disagree wholly and totally with what has been said, but when the noble Lord, Lord Avebury, said, "Look here, five years would be all right from this point of view", then I think I must take issue with the noble 667 Lord. For perfectly good and compassionate reasons, there are people in public life—among whom is the noble Lord—who will take up, quite understandably, the cases of people who otherwise may be deported from these shores, and deportation does not take place while those cases are being considered, and those matters can go on for a very long time indeed. I do not think that I need say any more than that to indicate why I believe that the five-year period could be a good deal too short.
Having said that let me turn to the second aspect of Lord Pitt's amendments and that is the averaging out of the periods of absence from these shores. The noble Lord explained why he has gone for this solution: it is because he wants more flexibility and again he wants to try and pick up the difficult cases. Let us suppose that I were to meet the noble Lord's first group of amendments. A child aged five who had been out of this country for a period of 450 days—nearly 18 months—at any one time would be eligible. If we are talking about the Government's 10-year period, a child could be out of the country for 900 days—not far off three years—at one time and remain eligible. The essential criterion the applicant has to meet is that he or she shall have been continuously resident in the United Kingdom during the qualifying period. We feel that that would be going too far. Therefore, the principle behind this second group of the noble Lord's amendments would permit a child to spend nearly one-third of his life overseas in the qualifying period and I think that that is asking too much.
None the less, the noble Lord made a telling point when he said to the Committee, "What happens if a child goes abroad, wants the qualifying 10-year period and falls seriously ill and is simply prevented from coming back?" There is nothing in the Bill to save that kind of case. I say quite frankly that I would like to try to meet the noble Lord in expressing the concern, which he has on this second group of amendments, to try to get more sensible flexibility. But I would prefer, before committing the Government, to explore it further under a subsequent amendment which my noble friend Lady Trumpington has put down. I am referring to Amendment No. 15. I hope that the noble Lord, Lord Pitt, will bear with me. We shall reach Amendment No. 15 quite soon when perhaps we can look at the matter again to see whether it is possible that that might be a better way of going about this problem.
Having said that, I come back to the original point about the 10-year and five-year periods. The noble and learned Lord, Lord Elwyn-Jones, really led the attack on this in saying, "Look at the child's school career". It would be churlish of me to say that we simply will not look at subsection (4) in that light. But it would be two-faced of me if I did not remind the Committee what I endeavoured to say at the beginning. I know that the facts sound harsh, but there are deportation reasons for choosing a 10-year period and certainly the Government must bear that in mind in also considering what may be best for the child. Certainly, because I am dealing with this amendment, I will look at the matter, but I must look at it from those two points of view. If the noble Lord feels that he does not need to press these amendments as he said, I gladly 668 give the undertaking, without any commitment, to look at the matter in that light and, so far as the second group of amendments is concerned, I would prefer, if I may, to look at those again in the light of Amendment No. 15.
§ Lord Drumalbyn
Before the noble Lord, Lord Pitt, does what he intends to do, I should like to revert to a question which I asked previously. Is it the case that, once the 10-year period is over and the child has been given British citizenship, he can then leave this country and spend the rest of his life abroad? Of course, we hope that he will be given a sound educational foundation in this country. All the same, in a way the 10-year period seems to fall between two stools. If you are to be educated here, you might as well be completely educated here, and we would hope that if he was a worthy citizen, he would stay here.
§ Lord Belstead
I will correct myself before many minutes have passed if I am wrong, but my understanding is that the answer to my noble friend is, Yes, because the person concerned will be a British citizen, and with British citizenship goes the right of abode.
§ Lord Pitt of Hampstead
I have always indicated that I would not press this amendment to a Division. Having listened to the Minister, I was almost tempted to do so, but I shall withdraw it and come back to it on Report. I hope that the Government will give careful thought to what I have said. It is all very well to be guided by deportation procedures, but there are things that are more important than deportation procedures, and I should have thought that what happens to a child and his whole life is important enough to warrant even a certain amount of flexibility about deportation procedures. If the Government are going to make the concession that they have obviously indicated they will make, the choice of five years is just about right in terms of being the best time to do it, with the minimum amount of difficulty. I know only too well that children often go to school before they have actually reached five years of age. But, if the head teacher knows that a child is to register at five, then the head teacher will ensure that the parent does so. This is one of the reasons why I have suggested that we use the age of five. I have said that I will withdraw the amendment, so I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ The Chairman of Committees
I have to point out that if Amendment No. 13 is agreed to, I cannot call Amendments Nos. 13A, 13B, 14 or 14A.
§ 9.38 p.m.
Lord Hunt moved Amendment No. 13:
Page 2, line 13, leave out from ("citizen") to end of line 16 and insert ("unless, as regards each of the first ten years of that person's life, it is shown that the number of days on which he was absent from the United Kingdom in that year exceeds 90.").
§ The noble Lord said: We have heard a good deal during the earlier stages of this debate and during the 669 Second Reading debate about the difficulty, the anxiety and perhaps the expense to which an applicant under subsection (4) will be put, possibly many years afterwards, when he applies for a passport and finds that he has to prove that he complied with the rules about the 10 years and the 90 days. The difficulties have been underplayed by some speakers on the Government side, but I think that we should take very seriously the emotional feeling and the problems which have been put to us by those close to the ground who know how the feelings about this are running.
§ The purpose of this amendment is to alleviate those feelings. The method by which it purports to do so is to shift the burden of proof as regards the absence or otherwise for 90 days during any one of the first 10 years from the applicant or the applicant's parents—but more likely the young man himself or the young woman herself—to the Home office. Instead of the applicant having to satisfy the Secretary of State that he or she has not been absent for more than 90 days during any one of those first 10 years, the amendment would have it the other way round: that the Secretary of State has not got to be satisfied on an application and proof from the applicant, but has to show the applicant that he has in fact exceeded the time of 90 days in any one of those years. I regard this as an important change which will undoubtedly alleviate the anxiety. I am greatly comforted to hear from the noble Lord, Lord Belstead, that a decision on that matter, if I understood him correctly, could be challenged by the applicant in the court. If that is so, it greatly reduces my anxiety about subsection (4). I beg to move.
Viscount Colville of Culross
I wonder whether I might use this opportunity to ask my noble friend Lord Belstead about certain words in this subsection which are going to turn up again in various other places in the Bill; in other words, to seek from him some information which may be relevant to some later amendments. They are the words, "if the Secretary of State is satisfied". There are two points about this. First, the noble Lord, Lord Hunt, has spoken in terms of the anxieties that the Bill creates, and this has been a theme that has run through everything that has been before the Committee today.
One finds, strangely enough, in the drafting of this Bill that there is a formula that has been used here and in Clause 3(2) and also in Clause 5(1) which requires the Secretary of State to be satisfied. In fact, the remedies that are available, whether or not the Secretary of State is satisfied, are very different. In the case of this subsection and in the case of Clause 3, as I understand it, it does not really very much matter in the end whether it is the Secretary of State who is satisfied or not, because the matter being put forward as one of entitlement, as my noble friend said just now, the ultimate arbitrators will be the courts, and the Secretary of State's satisfaction will be neither here nor there in the end.
However, under Clause 5, and particularly if one refers to Clause 43 further on whereby any decisions which are at the Secretary of State's discretion are removed from the jurisdiction of the courts, we also have the same formula. And under Clause 5 there is no doubt whatever, as I read the debates in another 670 place and here, that there is no entitlement at all, and it is purely a matter of discretion, and one will not be able to take a dissatisfaction on the part of the Secretary of State to the courts at all, particularly because of Clause 43.
There are two points on this. If there is to be an entitlement and people are to be able to take these matters on appeal—and this is one which is purely a matter of fact, so that although I take Lord Hunt's point the facts will have to be threshed out and will be decided by the courts—why use the same formula, which is also used for the case under Clause 5 of naturalisation, which is not susceptible to any sort of appeal?
If you want to differentiate between the cases where there is an entitlement to go to the courts and thereby disquiet may be dispelled because people will know that they can take their case on the facts to the courts, why use the same formula that looks as if it is a matter of discretion when, after all, you could draft it in a perfectly satisfactory way by leaving the words out altogether? The noble Lord's amendment not only reverses the burden of proof but it also leaves out these words in subsection (4). That is the first point. If you want to go to the psychology of it, why use these words at all when it is a matter of entitlement?
§ Lord Gifford
I am sure that the noble Viscount will be glad to hear that both in the next amendment and in 21 amendments standing in my name through the Marshalled List, I am seeking to delete the words "if the Secretary of State is satisfied" wherever they occur. But I shall not add to my speech on that until I move the next amendment.
Viscount Colville of Culross
I am obliged to the noble Lord, but I am differentiating between the places where they occur and am trying to find out what is the justification for having them here as opposed to having them in Clause 5. The second point—I expect the noble Lord, Lord Gifford, will be taking this up at length—is to know what the effect will be of having these words in when, in the ultimate, it is intended that the courts should have the final say. Supposing the Secretary of State certifies that he is satisfied: is the Minister sure that the courts will definitely be able to go behind a certificate of satisfaction of that sort? There is a good deal of case law under all sorts of legislation which suggests that there is at least a danger that when one uses a formula of this sort, it cuts out any jurisdiction in the courts if the Secretary of State simply says that he is satisfied.
After all, the object of the exercise, as I understand it, is plainly to make the matter appealable. Why, then, I ask again, use a formula which could, at any rate in the initial cases until it has been threshed out in the courts, cause a potential difficulty? And really as a trailer for some later amendments, my noble friend may like to deal with this point and give some information, so that we can think about it when we come to some of the later amendments and particularly when we consider, much later in the Bill, the provisions about excluding recourse to the courts in certain circumstances.
§ Lord Belstead
It may not entirely surprise the Committee that, with unerring accuracy, I have 671 marshalled the Lord Advocate to reply to any amendments on which I thought that Members of the Committee who are learned in the law might speak. Therefore, when I saw Amendment No. 14, the one with which we shall be dealing next in the name of the noble Lord, Lord Gifford, I asked my noble and learned friend if he would deal with that, and I hope my noble friend Lord Colville will not mind if he receives his reply at that time. The only thing I would say in passing is that I should have thought—and I speak without advice—that there was a considerable distinction between the use of the words in the subsection which we are considering, Clause 1(4), where it refers to the Secretary of State's being satisfied, and the use of similar words in Clause 5, the naturalisation clause, where it refers to the Secretary of State "if he thinks fit". I think there is a difference between the use of the words in those two provisions. However, if the Committee will allow, my noble and learned friend the Lord Advocate will reply to the substantial point which my noble friend made when he is dealing with Amendment No. 14.
That brings me back to the amendment in the name of the noble Lord, Lord Hunt, which reverses the onus of proof so far as subsection (4) is concerned, and I have to say that that would cause difficulties of a practical kind. After all, most of the evidence relating to an applicant's residence here during the first 10 years of life will be much more readily available to the applicant than to anybody else. The applicant will know, for instance, where he has been, what he has been doing and what evidence he can easily lay his hands on, or his parents will know, rather than somebody coming along and being required, as the amendment would require him, to ferret it out.
The alternative to the onus of proof as we have it in the subsection would, under the amendment, be to accept the application which is made and not make any inquiries into whether the applicant had been absent from the United Kingdom during the first 10 years of his life. That would mean, in effect, that anyone who applied under this provision and who could show both that he was born here and had reached the age of 10 would be registered as a British citizen. Again, that would leave the whole matter as a very unsatisfactory situation and contrary to what is the aim in the Bill. I feel therefore that there really is a difficulty here. I hope that the noble Lord, Lord Hunt, will not feel I am just being bureaucratic and deliberately obstructive. I assure him this is not the case.
I should like just to say that earlier the noble Lord, Lord Pitt, was good enough to say that there really is an intention in subsection (4) to try to be as helpful as possible, and I have put to the Committee previously that the genuine intention in putting subsection (4) into the Bill, which of course was by way of an amendment by the Government in another place, was to try to pick up the compassionate cases; but in finding out whether the compassionate case is genuine, I think the person or the parents concerned really must be required to produce the evidence. It is on those grounds that I really do not think I can accept the noble Lord's amendment.
§ Lord Elystan-Morgan
I rise very briefly to support the amendment of the noble Lord, Lord Hunt. In my 672 respectful submission, this amendment certainly would improve the Bill. I would suggest that there are two reasons of principle why this amendment should be made and why the onus of proof should be upon authority rather than upon the applicant. The first is, as the noble Lord, Lord Belstead, has said, that this is a case of an acknowledgement of an entitlement. If it is an entitlement, why on earth should the onus of proof be upon the person who claims that entitlement rather than upon authority that seeks to overthrow it? Secondly, and following very closely upon it, as the noble Lord will appreciate, it is one of the most fundamental principles of the English criminal law that any person who seeks to claim any exception to the generality of an English statute places upon himself the onus of proof in relation to that contention. It would therefore be in line with that important and hallowed principle of our law that the amendment should be allowed.
The Minister speaks of this concession—and a generous concession it was—as one that was made in order to accommodate those cases where compassion should freely be shown. I totally accept that but, in my submission, the machinery the Government have sought to use is unworthy of the Government's motivations and generosity. I would have wished the Minister to have given fuller consideration to the amendment relating to the five-year period. Ten years is a very, very long period and I believe I am correct in saying that it is exactly twice as long as the longest transitional period that our immigration laws at the moment possess. I think I appreciate exactly what the noble Lord the Minister had in mind when he said there were deportation reasons here, but this is really a matter of principle and of what is right and balanced, rather than of what is perhaps technically convenient for authority.
The 90-day rule, in my submission, is one that is fraught with possibilities for endless embarrassments and inconsistencies in this situation. There will be a vast amount of legislation—perhaps, as a practising barrister, I should not cavil at that—but I am sure it will be legislation that will cast its shadow well beyond the immediate provisions of this particular part of the Bill. As far as the 90 days is concerned, I think it will make the whole concession made by Government almost worthless. Others far more eloquent than myself, both in another place and here, have drawn attention to its massive potential anomalies. A child in his first year can be out of the United Kingdom for 91 days and then for the next 15 years cannot leave these shores at all. Yet as far as this provision is concerned—it may well be that the discretion of the Home Secretary would be applied in another context—a person would not be able to avail himself of what after all the Government call an "entitlement".
Therefore, I urge the Minister and his colleagues to reconsider this matter, to ask of themselves whether there is any magic in the 90-day rule? Must it be the laws of the Medes and the Persians? Would it not be possible to reconsider giving the same entitlement in a more meaningful way and perhaps referring not to a 90-day absence, but to persons who were in fact ordinarily resident for a period of 10 years? As I understand it, if a person is ordinarily resident, that is a test not far different from the test of domicile that we know so well in the context of our laws of 673 divorce and probate, so that even when a person leaves the United Kingdom for a substantial period, if he has the genuine intention of returning—the animo revertendi—then he is deemed not to have left at all, because in spirit he was still here; here was his home. Is the 90-day period all important if in fact it is to undermine the very purpose of the Government in regard to allowing the amendment in the first place?
§ Lord Boyd-Carpenter
I understand that under the amendment in the name of my noble friend Lady Trumpington we are to have an opportunity of discussing the 90-day rule, in regard to which I must say I have much sympathy with the noble Lord who has just spoken. However, I must remind him that in this amendment in the name of the noble Lord, Lord Hunt, the 90-day rule is enshrined. Indeed to my mind the 90-day rule is one of the defects of this amendment, and apart from other things one of the reasons that I find it necessary to oppose the amendment is that it repeats this rule.
I do not at the moment want to take up the time of the Committee with discussing the 90-day rule, because I hope to have an opportunity of doing so, subject to what my noble friend on the Front Bench says, on the amendment of my noble friend Lady Trumpington. However, I think it necessary to remind the Committee that the amendment now before us enshrines and reproduces this particular rule.
I am most grateful to the Minister, and I assure him that I do not find his reply in any way 674 obstructive. Let me assure the Committee that I do not propose to press the amendment to a Division at this stage. However, I must tell the Minister that I am not by any means persuaded regarding what he has said about there being no difficulty in an applicant showing that he has not been absent for more than 90 days in the first 10 years. I think that that might be very difficult in quite a number of cases where the applicant does not make his application—because he does not need to leave the country and does not need a passport—for perhaps 10 years after the first 10-year period. He might find it very difficult indeed if, 10 years or more on from the date, he has to show cause and satisfy the Secretary of State. I take great comfort in the point made by the noble and learned Lord that this is a matter of fact, and being a matter of fact it can be challenged in the courts.
I also take note of what the noble Lord, Lord Boyd-Carpenter, said, and I agree with him. I am not by any means happy about the 90-day rule, and I very much hope that when the Bill comes before your Lordships again at the Report stage there will be tabled at least one amendment in this sense. Perhaps we shall hear more about this in a moment from the noble Baroness, and I am certainly in sympathy with the point. However, on the understanding that I shall be looking at this question in the meantime and that I may well want to put down an amendment in a different form at Report stage, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 13A and 13B not moved.]675
§ 9.59 p.m.
Lord Gifford moved Amendment No. 14:
Page 2, line 14, leave out from ("life") to first ("the") in line 15.
The noble Lord said: As I indicated a moment ago, the effect of the amendment is to delete the words,
the Secretary of State is satisfied that".
The case for deleting the words is a clear one. In the first place they are simply unnecessary. In the second place they introduce a thoroughly undesirable barrier to people who are claiming what is said in the Bill to be an entitlement. Let this be confirmed, that in this subsection, as in many other parts of the Bill, we are not talking about a discretionary decision of the Secretary of State. The words of Clause 43(2) do not apply, and the person who can fulfil the conditions of the subsection is entitled to be registered as a citizen as a matter of right.
§ When someone is entitled to something, one looks to see what the conditions are. In this case there is, first, the need to bring the applicant within the residence condition, and then there is the requirement, which is to satisfy the Secretary of State. Of course, in practice this means not satisfying the Secretary of State but satisfying the immigration officer or citizenship officer who happens to be dealing with the case. Those who deal with immigration matters in the Home Office, as many noble Lords who have to deal with such matters know, are suspicious about the applications which are made to them.
§ They are suspicious, sometimes, to the point of obsession. They deal with applications, in part in writing in part after interviews, which contain none of the safeguards of a court; and in this subsection, as in other parts of the Bill, they are having to deal with a matter which, as was said a moment ago, can often be factually very complicated. As the noble Lord, Lord Hunt, said, a man of 20 or 30 may be saying to the citizenship officer, "I was here for the first 10 years of my life", but that may be difficult to prove. There may have been an absence for some months, and there may be a dispute as to the actual length of that absence.
§ We have not started to go into this, but I should imagine that one question that is going to arise on this kind of application is whether the Home Office computer records, with which arrivals and departures are tallied, are accurate in a particular case. For instance, in the case of someone whose parents' passport is lost, it may be a question of controversy whether an absence which the Home Office think was an absence of a year was in fact an absence of a year or an absence of two months. These are the kind of questions which will come up and which the civil servants will have to deal with; and in the nature of things they are bound in a number of cases to get it wrong, and to declare to someone that they are not satisfied when in fact the conditions for entitlement exist. So the applicant will have to go to court.
§ The noble Viscount, Lord Colville of Culross, is absolutely right to be worried about this formula. I made the point on Second Reading that the court's role on an application to review the Secretary of State's decision in a case like this is a limited role. It does not act as a court of appeal from the Secretary of State; it is merely there to see that the Secretary of State or 676 his officers have applied the right legal principles, have had a fair review of the facts and have taken into account the evidence which they ought to have taken into account. If that has been done, the court is not concerned with whether or not they have in fact got it right.
Viscount Colville of Culross
May I interrupt the noble Lord? I understood from reading reports about this matter in another place that the Government were not anticipating that it would be done by way of judicial review in one of the senses of prerogative orders, but that it would be done by an application for a declaration. Therefore, it may be possible to go into rather more of the facts by way of appeal on fact, as it were, than perhaps the noble Lord has in mind.
§ Lord Gifford
It is a point which is slightly technical and on which lawyers have to tread very carefully. Of course, I shall be awaiting and reading very carefully the reply of the noble and learned Lord the Lord Advocate; but I am assuming that whatever procedural form the case may take, the principles that will be applied will be the principles that have been applied in the similar jurisdiction of immigration which the House of Lords has had to consider very recently in the case of Zamir. The Immigration Act does not even use these words, "if the Secretary of State is satisfied". It contains reference to a number of rules. But the House of Lords expressly decided the case of Zamir as if that formula had been incorporated into the Act, and their view was that it was not for the court to go into the factual question of whether an immigrant in this case had entered by fraud. The decision, said the noble and learned Lord, Lord Wilberforce—and I quoted this on Second Reading, but I make no apology for doing so again:can only be attacked if it can be shown that there were no grounds on which the Secretary of State, through his officers, could have acted or that no reasonable person could have decided as he did".That is a very limited form of review.
What I ask myself and what I ask the Committee is this: what is the purpose of inserting this formula at all? If your Lordships would look for a moment at Clause 7 of the Bill, you will see a completely different approach to the question of an entitlement to registration. In Clause 7, a woman, it is said, shall be entitled on an application for her registration as a British citizen made within five years after commencement to be registered as a British citizen if—and then the conditions which have to be complied with are set out. But there is no insertion of the words "if she satisfies the Secretary of State that" the conditions are set out. There is no doubt in that case that a dissatisfied applicant could go straight to court for a declaration. I ask why that same simple formula cannot be used in these other cases where an entitlement to registration is spelled out. If it is not, it raises serious questions. What will be happening is that decisions will be made behind closed doors by civil servants, without legal safeguards and with limited judicial review. What we need is decisions made by civil servants and, if they are wrong, the power to go to court, rehearse the evidence and get the court to make 677 the final decision one way or the other. That is how questions of this magnitude should be decided. I beg to move.
§ Lord Elwyn-Jones
I should like to support the views expressed by my noble friend Lord Gifford on his amendment. Subsection (4) of Clause 2 is a very important concession. It was made in another place and was so described. I think it is an important concession. It does away with at least some of the mischief of the abolition of the jus soli. It seems to me to be regrettable that it should be whittled away or thought to be whittled away by the introduction of the apparent ability of the Secretary of State to put a spanner in the works, as the words, "if the Secretary of State is satisfied" enables him to do. I agree with my noble friend that the introduction of the words limits considerably the power of the court to intervene. For that reason, and in the context of the bestowal of a clear entitlement, I submit that it is imperative to make a reality of the concession, to eliminate the words.
§ Lord Avebury
I want to say a word or two in support of the amendment, which seems an extremely important one bearing in mind the fact that even lawyers in your Lordships' Committee cannot agree on what the power of the courts will be to review the decision of the Secretary of State. The noble Viscount, Lord Colville of Culross, has a slightly different view of the extent of the powers of the court from that of the noble Lord who moved the amendment. Whatever the truth may be, it is inevitable (as in the case of Zamir which has been quoted) that the courts will not overturn this decision of the Secretary of State unless it is manifestly unreasonable. I cannot understand why, when dealing with a simple matter of fact such as presence in this country during the first 10 years of a person's life, except for absences of not more than 90 days in any one year, that should be left to the Secretary of State to determine. It should go straight to the courts if there is any dispute, and this can better be provided for by leaving out the offending words.
§ Lord Mottistone
The noble Lord, Lord Gifford, has called our attention to Clause 7. Having looked at the clause it seems to me that he did the well-known thing of quoting part of subsection (1) but did not go on to subsections (2) and (3) where the point on which he is disturbed about the Secretary of State's being involved in making a decision is pre-eminent. Quoting Clause 7 as an example, as a clause, probably does not support his case.
§ 10.10 p.m.
§ Lord Mackay of Clashfern
It may be right for me to say to the noble Lord, Lord Avebury, that the mere fact that lawyers may take a different view about a certain matter does not necessarily mean that the matter is not reasonably clear. May I deal with the point that my noble friend Lord Colville of Culross raised? He drew our attention to the provisions of Clause 5 and wished to comment on their relationship to the present clause. If members of the Committee would be kind enough to look at Clause 5(1), they will see 678 that the provision is that on certain facts the Secretary of State has to be satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under the subsection. If that happens he may, if he thinks fit, grant a certificate of naturalisation.
The contrast between a discretion in the words "may, if he thinks fit", and the words "the Secretary of State is satisfied" is clearly pointed out. I therefore suggest that the Bill as drafted draws a fairly clear distinction between the situation where entitlement depends upon the satisfaction of the Secretary of State, which is not a discretion, and the case of discretion where the Secretary of State may, if he thinks fit, do something. Clause 7 contains a discretion of that kind. Clause 7 is simply following the precedent of Section 6(2) of the 1948 Act. We thought it better, since this is continuing that in another form, that the words of the 1948 Act should simply be repeated.
The next question I was asked was: What is the effect of the words "if the Secretary of State is satisfied"? Putting these words in indicates to whom the applicant should apply in the first instance. It is not a question of needing in every case to go to the court. It is only if one fails with the Secretary of State that there should be any question of going to the court. Accordingly, it is useful to indicate that the Secretary of State is the person to whom one should apply to seek his satisfaction on these matters of fact. It is also reasonably plain that the jurisdiction of the court to deal with that entitlement would not be ousted except by very plain words. I certainly take the view that if the court were satisfied upon the facts by evidence in the cases we are dealing with here, the Secretary of State would be perverse if he were not prepared to accept them; in other words, if the facts can be demonstrated to the standard of proof which will satisfy a court of law, the Secretary of State can hardly refuse to be satisfied in that situation.
On the other hand, it may be possible to satisfy the Secretary of State with evidence which, on a balance of probabilities, might fall short of the standard of proof which would be required in a court of law. On balance it seems to us that the phrase to which the noble Lord objects is helpful to the applicant and enables the Secretary of State in a difficult case—a case in which the evidence may be a little scarce—to be satisfied without going to the full length of the sort of proof that would satisfy a court of law.
Some question was raised about the procedural route by which an applicant who was dissatisfied with the lack of satisfaction on the part of the Secretary of State might seek redress. I should have thought that in the courts of this country an application under the new Order No. 53 would be appropriate because it includes the possibility of a declaration as well as review under the former prerogative orders. So far as the courts of Scotland are concerned, a somewhat similar procedure would be available. Accordingly, the answer to the questions which have been put is that it would not make much difference to leave these words out altogether; the effect would be very much the same, but their presence may, in a marginal case, be of use to the applicant and so we feel that it would be wise to leave them in the Bill. In the light of that explanation, I hope that the noble Lord will feel able not to press the amendment.
Viscount Colville of Culross
Would the noble Lord, Lord Gifford, allow me a few words before he decides what to do with his amendment? I should like to ask my noble and learned friend to have one more look at this point. I fully take the point that there may be cases where the Secretary of State does satisfy himself on the basis of information which might fall short of proper proof required in a court of law. Similarly, it is useful to have a signpost covering to whom it is that one should apply. Both of those could be perfectly well supplied with the words "on application to the Secretary of State", without saying anything about satisfying him. One could simply provide that the first application was to go to the Secretary of State, which means that the first decision would be his. If it is a more lenient decision than might have been obtained in a court of law, then so much the better.
There is a much more serious point. My noble friend Lord Mottistone pointed out that there were provisions in subsections (2) and (3) of Clause 7, where it is perfectly plain, I would have thought, that we are back into the area of complete discretion. The formula in subsections (2) and (3) is one which is similar to that in Clause 5 to which my noble friend referred—"if he thinks fit". As I understand it, that does not apply to Clause 7 (1), to which the noble Lord, Lord Gifford, referred. There one has a case of plain entitlement, if one can fulfil the provisions. Incidentally, the subsection does not say that one has to apply to the Secretary of State, although no doubt one does have to do so, and perhaps that might be corrected as well.
The point that really concerns me is that the courts, when they are construing the extent of their jurisdiction under Order No. 53—or, no doubt, the Scottish equivalent—are feeling their way at the moment. The new order has not been in the rules of the Supreme Court for very long, and the way in which it is to be applied to the various legislation under which it arises is still being worked out. The courts will not be allowed to read the speech which has just been made by my noble and learned friend, in order to seek to construe the powers that have been conferred upon them, or which have been conferred upon the applicant to them, under this Bill when it becomes an Act. They are simply precluded from looking at it. What they will have to do is to look at the Act itself.
What are the courts going to say about the contrast between Clause 1(4) and Clause 3—both of which are said to provide for entitlements, if you can show that you have satisfied the criteria there—and Clause 7? In the first two cases, there is an extra hurdle provided in the Bill; in other words, in the first two cases the Secretary of State has initially had to be satisfied. But under Clause 7(1) he does not have to be satisfied. Are the courts not likely to wonder why it was that Parliament drew this distinction?
Very well, it may be a historic relic from the 1948 Act, and one does not wish to change the words of that. But how are the courts to know that that is the significance of it? Is there not a danger, if we do not do something about this, that they will think there is some significance in having left out the requirement in Clause 7 to satisfy the Secretary of State, which imposes 680 some restriction upon their jurisdiction under this subsection that we are talking about and under Clause 3? Why, otherwise, would Parliament have made a differentiation in the words that they used? This is the kind of way that the interpretation of statutes goes.
It is of vital importance, if what my noble friends on the Front Bench and their colleagues in another place have said is to be fulfilled, that there shall be a proper method of appealing these matters of entitlement without some procedural impediment, or some shortfall in the jurisdiction of the courts. It is of vital significance that it should be clear upon the face of the Bill. I would respectfully suggest to my noble and learned friend that, with the contrast that has been pointed out, it is very far from clear. We are going to have a substantial amount of time before this Bill comes back. Would my noble and learned friend have another look at this, to see whether there is something which can be done by way of genuine clarification, which will deal not only with the points of anxiety but with the point which has been raised in this debate?
§ Lord Mackay of Clashfern
It is plain that this is a matter not so much of the intention, but of how the intention is to be achieved. I should be very happy indeed to reconsider the position in the light of what has been said in this debate, because it is plain that we want to make it clear if we can.
§ Lord Gifford
I am very grateful to the noble and learned Lord for that indication, and I am also grateful to the noble Viscount, Lord Colville of Culross, for his very pertinent contribution to this little debate. Before seeking leave to withdraw the amendment, I wish to put it clearly before the Committee that I am not satisfied that the case which I put in support of this amendment has been met by the reply of the noble and learned Lord the Lord Advocate.
Dealing shortly with his points, he said that the formula helped to show to whom you are to apply. Really, that was a very weak point. It is clearly written all over the Bill, including Clause 40(2) which deals with the making of regulations, that you apply to the Home Secretary if you want to be registered. There are no "ifs" or "buts" about that. But he went on to talk about the standard of proof which is acceptable in a court of law, and I ask him to consider that the kind of safeguards that pertain in a court of law are not there, when it is just a question of the initial consideration by the Home Office.
For instance, an applicant does not have any rights of discovery of any documents until he can get to a court of law. He may have a case which is disbelieved by the Home Office civil servant, but which he could make good with proper safeguards in a court of law. It is not right to say that this formula is helpful to the applicant. When these matters are raised, they go first to the Home Office. The Home Office can look into them and, if they think that the conditions apply, they can register the applicant. We are concerned only with cases which the Home Office have rejected. We are concerned only with providing a fair means 681 of resolving disputes. When the noble and learned Lord said that the right way to proceed would be by Order 53, I suggest that he gave the game away because the case of Zamir which I have quoted was a case under Order 53.
When further consideration of this matter takes place, I would ask the noble and learned Lord to inform us whether he thinks that under this formula the criteria laid down by Lord Wilberforce in the Zamir case would be applied to an application to the courts in a case such as this. If the same criteria are to apply, then all our concerns are fully justified. If the Government intend that they should not apply, the best way is to delete these words and to restore the formula in Clause 7(1) which, as the noble Viscount, Lord Colville of Culross, said, has stood the test of time and is a perfectly straightforward test, and there is absolutely no need to insert these words. I apologise for taking so long to reply. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 14A not moved.]
§ 10.26 p.m.
§ Baroness Trumpington moved Amendment No. 15:
Page 2, line 16, at end insert—
("The Secretary of State may however in exceptional circumstances use his discretion should absence from the United Kingdom in any one year exceed 90 days.").
§ The noble Baroness said: I have put down this amendment because it occurs to me that exceptional circumstances may well occur when, through no fault of either parent, a child under the age of 10 may exceed the limit of 90 days' absence from the United Kingdom in one year. Let us take, for example, the hypothetical case mentioned by the noble Lord, Lord Pitt of Hampstead, of the child who becomes gravely ill, possibly suffering from a contagious disease, towards the end of a 90-day visit overseas. It is impossible to transport this child home within the given statutory time limit.
§ I realise that the situation will apply to a minority of cases whose circumstances do not fit in with subsections (1), (2) and (3) of Clause 1. However, let us take the example of an academic who is granted sabbatical leave of absence for one year. Dons or schoolteachers may wish to use their time to pursue a particular course of study in another country. Are they expected to leave their families in the United Kingdom? As the clause stands at present, they may well have to do so. My noble friend the Minister well knows that doctors, scientists and businessmen often exchange working visits on an international basis, visits which frequently last over a period of several months or years.
§ My noble friend the Minister is a very kindly man, and I know that he will sympathise with the emotional angle which I have introduced. I feel sure that he would never wish to be responsible for keeping families apart. I believe that I have given sufficient practical possibilities as to why the clause as it now stands is somewhat bleak in outlook to allow me to hope that the Government will accept my amendment.682
The Lord Bishop of Rochester
Although I think it is more than she deserves after her indulgence in the national sport of bishop baiting, I should like to respond to the earlier invitation of the noble Baroness and assure her of my support for this amendment. If this rather complex procedure has been devised in the interests of the exercise of compassion, then surely this additional discretion for the Secretary of State is much to be encouraged.
§ Lord Boyd-Carpenter
My noble friend may or may not be a kindly man but I hope that he is a logical one. Therefore, I hope he will appreciate that the clause in the Bill as it stands is very illogical. As I read it, a child can be absent from this country for 89 days in each of 10 successive years which, if my mathematics are right, totals about 2½ years. But if he or she is absent for one day more than 90 days in one of those years, then they fall down on their application for registration. That really cannot make sense. There must be some flexibility in the system. It seems to me that the amendment devised by our noble friend Lady Trumpington, by giving to the Secretary of State a discretion to prevent a ridiculous situation arising, meets the case and I hope he will accept it.
§ Lord Belstead
The permitted absence specified in subsection (4) is, as we all know, 90 days in each year since the date of birth. Taking that as a base line, I think it is a reasonable provision. Earlier this evening I ventured to give reasons as to why the Government felt that the 10-year period was reasonable, but if your Lordships will bear with me for one minute I will explain why I think the 90-day period is reasonable. I repeat, we are talking about people who have not been able to go through the ordinary avenues of citizenship from their parents or citizenship from settlement, or because their parents have become citizens or have become settled after the children have been born. Therefore these are difficult cases. I think there is a very strong case for saying that they should therefore show that they really are intending to live in this country, and in cases where they want to be abroad for longer it does not seem unreasonable that there should be a requirement that such a child should eventually apply for naturalisation or, if a minor, for registration under the Secretary of State's discretionary power to register any minor under Clause 3(1).
Nevertheless, having said that, I accept what my noble friend Lord Boyd-Carpenter and, in essence, what the noble Lord, Lord Pitt, has said on different amendments, and of course my noble friend Lady Trumpington and the noble and learned Lord, Lord Elywn-Jones. They have all said at different times this evening that this seems very rigid, even if the principle seems a good one in the view of the Government. Of course there can be the case which the noble Lord, Lord Pitt, put first, where a child might fall ill and simply could not come back, but in addition to that there is the case where someone may want to apply for this 10-year concession but very much later on in his life. He could not possibly come back to the Secretary of State under the general discretion to register a minor under Clause 3(1) and he would find that there was no discretion at all.
683 So, for these reasons, I think that we ought to look at this again. I will not conceal from the noble Lord, Lord Pitt, that we would prefer to look at it along the lines of this amendment rather than reducing the 10-year period, although I feel sure that we shall be discussing that again before the stages of this Bill have been completed. Therefore, so far as this amendment is concerned I am prepared to consult with my noble friend Lady Trumpington about a suitable amendment, because I hope my noble friend will not mind my saying that we think the drafting of her amendment could be improved. That is why we should like to look at a revised amendment for the Report stage. In principle I accept the case put forward by my noble friend.
§ Baroness Trumpington
I thank my noble friend very much for his reply. At least my drafting shows that I was independent in spirit as well as in thought. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Elwyn-Jones had given notice of his intention to move Amendment No. 16:
Page 2, line 19, leave out ("in the United Kingdom").
§ The noble and learned Lord said: In view of the content of Amendment No. 17, which I think is rather better than Amendment No. 16, the latter is not moved.
§ 10.34 p.m.
Lord Avebury moved Amendment No. 17:
Page 2, line 19, leave out ("in the United Kingdom") and insert ("and that order is recognised as valid by a court in the United Kingdom").
§ The noble Lord said: This amendment concerns the question of adoptions of children in other countries, the procedures of whose courts are recognised in the United Kingdom. The amendment was discussed in another place at Committee stage. It was a rather wider one than this, in that it referred to adoption of any kind, whereas this amendment is limited to adoptions in courts overseas whose jurisdiction is recognised as valid by a court in the United Kingdom. So at this moment we would exclude countries where there is what I believe is known as customary adoption, such as is performed in a fairly informal manner without its being registered in a court of law. There are countries where that still occurs, such as, I believe, Pakistan. However, in this amendment we are dealing only with countries with a recognisable adoption procedure which is valid so far as the British courts are concerned.
§ There was an amendment of a similar nature moved in Committee in another place. The main reason given for its rejection, as in many cases in this Bill, was that it could involve considerable immigration commitment. I would suggest that that argument was misconceived. I do not think very many people born and brought up in Great Britain are going to wish to adopt children in some overseas country; so we may confine our attention to those who may come here from abroad and would like to adopt a child from the 684 culture and background which they know. Those are a diminishing number because primary immigration into this country has to all intents and purposes come to an end. So the number of people who would wish to go back to the country of their origin and adopt children there would be very small indeed.
§ I do not think the argument put forward by Mr. Richard Luce in the Committee in another place really holds very much water. There were other points he made, but as the hour is very late I will not rehearse them at this stage. I should like to hear what the Minister has to say on this more limited procedure I have recommended; perhaps we can do that this evening, and I shall not weary the Committee with a long discussion of the merits of the amendment. I beg to move.
§ Baroness Birk
I support the amendment moved by the noble Lord, Lord Avebury. The Bill gives citizenship by adoption only by virtue of an adoption order made in the United Kingdom. However, adoption orders made overseas are recognised by our law for purposes other than citizenship and a parent is bound by legal responsibilities under them. This amendment would allow British citizen parents to confer citizenship on children adopted abroad by a court order under the other country's laws. This seems only reasonable as the parent who has to live and work abroad finds it necessary very often to make an adoption overseas and not here.
In answer to the point, which has been foreseen by the noble Lord, Lord Avebury, the Government have said it might be adoption of convenience to circumvent entry control if the Bill were amended. However, I would submit that if a court adoption order was required it would not be possible for people to adopt children casually without proper safeguard, because the amendment does not omit the requirement for a court order. In any case under the immigration rules and orders it would be possible then to deal with something which was a matter of convenience. I hope the Minister will look on this amendment with some benevolence.
§ Lord Trefgarne
This amendment would mean that a child adopted by a British citizen would automatically be a British citizen if the adoption was made by a court order and was recognised as valid by a court in the United Kingdom. This would mean that adoptions overseas by court orders which are later recognised by a court in the United Kingdom would confer British citizenship if the child was adopted by a British citizen. The process of later recognition by courts in this country seems a somewhat cumbersome procedure, and I am not sure whether it was really intended by the noble Lord, but it is what his amendment seems to say.
It may be that the noble Lord has in mind in particular that adoptions should in these circumstances confer citizenship where they are made in those countries whose adoption laws have under the Adoption Act 1968 been designated by the Secretary of State although this amendment does not in fact quite 685 achieve that. A child who is adopted under the laws of such a country enjoys broadly the same status in our law as a child adopted here, and for instance can inherit property. This, however, does not apply as far as nationality law is concerned. It was originally envisaged that the recognition of overseas adoptions under the Adoption Act 1968 should extend to nationality matters. But for reasons which apply to this amendment equally and which I shall set out in a moment, the relevant subsections of the Adoption Act 1968 were not implemented when the order was made in 1973 to recognise adoption orders in specified countries under the 1968 Act.
In 1975, under the previous Administration, the relevant subsections of the Adoption Act 1968 were repealed in Section 108 and the Fourth Schedule to the Children Act 1975. So it can be said that successive Administrations of different political complexions have accepted that the recognition of overseas adoptions under the 1968 Act should not apply as far as the nationality law is concerned. The noble Lord is presumably concerned in this amendment to alter this, but I am afraid that we continue to see difficulties in this approach and perhaps I may explain why this is so.
First, it would involve, as the noble Lord has already recognised but somewhat rejected, I think, as a criticism, a considerable immigration commitment. It would enable anyone who was a British citizen to go abroad and adopt children in one of a very considerable number of countries, and these children would be entitled to British citizenship and have the right to abode here. There would be a considerable temptation for people to adopt children in this way as a means of evading immigration control on the entry of children, and there is the risk of children being adopted for purely financial reasons. Of course the authorities in the countries concerned will do their best to see that the adoption is a proper one; but we cannot expect them to monitor our immigration control. That is not, of course, their main concern.
Secondly, the child who acquired British citizenship in this way would be able to transmit this citizenship to his or her children born abroad. The adopted child himself might have very limited connections with this country. His children could have even fewer ties. British citizenship and the right of entry to this country would thus be extended to people who might have few links with the United Kingdom. Thirdly, there could be serious citizenship anomalies. A child born to a British citizen abroad would only be able to take his parents' citizenship in certain cases—where, for instance, his father or mother had been born or registered or naturalised here. But a child adopted by a British citizen in a country whose adoption laws are recognised would have an entitlement to British citizenship which could not be withheld. So the adopted child in a family would have a claim to British citizenship which the natural-born children in the family might not hold.
We believe that these arguments are powerful ones and justify limiting the conferment of British citizenship by adoption on children adopted by British citizens in the United Kingdom and Islands. I am prepared to say more, but I hope that I have said enough to 686 persuade your Lordships and, indeed, the noble Lord, Lord Avebury, that this amendment really does not bear critical examination.
§ Lord Avebury
I am afraid that the noble Lord has not said enough to convince me that the amendment does not bear critical examination, and I hope that he will agree, on reflection, that this is a matter which we should explore further, perhaps not at this late hour, but at the Report stage.
I should like to get one or two matters on the record so that we do not lose sight of them when we come back to this matter on Report. First, the noble Lord mentioned that there was a procedure for countries to be designated under the Adoption Act 1968 and that although this had never been extended to nationality and citizenship provisions that was originally envisaged, although under the previous Administration I think he said that the relevant provisions were repealed by Section 108 and Schedule 4 to the Children Act 1975. I know that that was mentioned in another place. I have not had the opportunity of referring to the relevant section of the Children Act 1975 nor am I aware that that necessarily indicates that the present Opposition when they were in power agreed with the view that the Government are taking on the question of adoption extending to citizenship. Certainly from what I have heard from the Opposition Front Bench this evening that did not seem to be the case. If they took that view in 1975—as in many other matters, as we have seen concerning the Green Paper of 1977—there have been opportunities for second and better thoughts on the part of the official Opposition.
Secondly, the noble Lord seems to imagine that under this provision foreigners, having become naturalised in this country, would be going abroad and adopting children in their countries of origin on a more or less unlimited scale. I do not believe that that would be the case because we have provided that the adoption must be recognised in a court of law whose jurisdiction is recognised in the United Kingdom. The noble Lord says that people would adopt children for purely financial reasons. Does he imagine that the courts in any country will allow someone to come over from Great Britain, pick up a child and present it to the court saying, "I wish to adopt this child", without proper inquiries being made by the court into the connections that the would-be adopter has with the child? Of course not. The courts would make proper inquiries and establish the bona fides of the would-be adopter, and make sure that the relationship with the child was not one of the character mentioned by the noble Lord.
The noble Lord did not deal at all with the point that I made which, if I may say so, is ofsome importance; that is, that as primary immigration into this country has virtually come to an end, there will not be any potential parents who could go overseas and adopt these children other than EEC residents, whom I mentioned earlier. Unfortunately, we did not complete the discussion that we were about to have on the case of Pieck where I said that citizens of the EEC were able to come here and be free of conditions immediately.
So citizens of the EEC who come here and work and who become naturalised would, in any case, be able to go to, say, France or Germany and adopt the children 687 there and bring them into the United Kingdom, because those children ultimately would have the right of entry under the free movement provisions—perhaps not at the moment when the entry of EEC citizens has to be purely for the purposes of work, but (as I have already mentioned when I spoke to an earlier amendment) there is already movement in the Common Market to widen the circumstances in which people may move freely from one country to another.
Therefore, I do not think that the noble Lord answered any of the arguments that I put forward, but I quite recognise that it would be preferable if we did not reach a conclusion on the matter at such a late hour in the evening. I shall, indeed, return to this on Report, but in the meanwhile I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 18, 19 and 20 not moved.]
§ Clause 1 agreed to.
§ Lord Denham
I think that this is probably about the sort of time when we might adjourn for the first day. Therefore, I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.