§ House again in Committee, on Clause 3.
§ Lord Geddes moved Amendment No. 77:
Page 5, line 41, at end insert—
(c) "Close connection" means a connection of material significance with the United Kingdom which may include, inter alia, any of:
§ The noble Lord said: I beg to move Amendment No. 77. The entitlement under Clause 3(2) of the Bill, ignoring the rather vexed question of the discretion of the Secretary of State, is subject to four criteria. The first, in subsection (2)(a), is quite specific with regard to the parent in question being a British citizen. The second has regard to "relevant employment", which is defined in some detail in subsection (3). The third and fourth criteria, in (2)(c) and (2)(d) have regard to close connection", which is not defined.
§ When drafting this amendment, I was conscious of something of a dilemma. First, it could be argued that the texts of these two subsections are already too vague and an attempt to define "close connection" could make them more vague and confusing. Secondly, the words "close connection" are used in different 1442 contexts in the two subsections, the text being commercial in subsection (2)(c) and the text being personal in (2)(d).
§ I asked the noble Lord the Minister on the Second Reading of this Bill how close was a "close connection". I do not recall receiving an answer. Therefore, despite the traps that I have outlined, I felt it was important to table this probing amendment to try to give some definition to the words "close connection". I may well not have got this amendment in the right place and it may not be sufficiently comprehensive. Indeed, my second definition of "child's full-time education" I now realise is somewhat premature, since that child at the relevant time within this clause would at the time of the application be at the most 12 months old. I apologise to your Lordships. I would think that even in such a probing amendment my reference to full-time education should refer to the parent and not to the child.
§ I repeat that I do not consider in any way that my amendment is comprehensive. My endeavour is to try to have a short debate on this subject and to ask the noble Lord the Minister whether he can give some guidance with regard to the definition of the expression "close connecton", and whether he does not consider that there should be some form of definition in the Bill. I beg to move.
§ Lord Mishcon
I think this is a very interesting amendment in that it does seek to define words which obviously have no fixed purpose in their actual wording, namely, "close connection". But I remember the noble and learned Lord, I think it was, or the noble Lord the Minister pointing out to us that these words have been used in previous statutes. I know that one of my noble friends asked whether the Government could give any indication as to whether there had been any decisions by way of precedents on the meaning of those words.
I must say that my friends and I sympathise with the wish to have some sort of certainty here, especially when you have the exercise of some sort of discretion with regard to the Home Secretary's interpretation of them. I am a little worried, as was the noble Lord, Lord Geddes, as to whether this list is a sufficiently good one. I hope, as I believe he does, that the Government, if they find this list not acceptable for good reason, will be able to make some suggestions as to how the words "close connection" may be defined.
I hope I shall not be deemed to be facetious in my next remarks, but many of us know that there are people who sever their connection with the United Kingdom for motives not altogether laudable, and it seems to me strange that when we have a definition of "close connection" such as the noble Lord, Lord Geddes, sought to give us, nowhere is there any reference to the fact that a "close connection" could be found by the payment of United Kingdom income tax. It seems to me that if there is to be a definition and somebody is to get the benefit of this, one at least of the ways in which a "close connection" could be found is that United Kingdom income tax is being paid. However, having made that remark, I, like the noble Lord, Lord Geddes, will await with interest to see whether the Government can at least do something to make the words "close connection" have some 1443 meaning in this Bill so that people know precisely where they stand.
§ Baroness Elles
If I may intervene for one minute, I very much hope that the noble Lord's proposal that payment of tax might be one of the conditions will not be followed, considering that there are at least 8 million people in this country who do not pay tax but who nevertheless would consider themselves very closely connected with this country.
§ Lord Mishcon
I intervene again only in order to make my position quite clear. I am dealing, of course, with people who have removed themselves abroad, and they do not normally come within that definition.
§ Lord Belstead
I am grateful to my noble friend Lord Geddes for putting down this amendment, because I think it is important that we should have a short discussion about this expression which lies really at the heart of Clause 3, although I think the dangers of trying to be specific have already been demonstrated by the short exchange which has occurred between the noble Lord, Lord Mishcon, and my noble friend Lady Elles.
I will come immediately to the point, if I may. Those making application under this provision for their children would be asked to give details of the connections they have with this country through their employment and in other ways. As far as employment is concerned, these inquiries will normally be quite straightforward and we do not think it would often be necessary to go beyond the details of the nature of the employment and the links which that employment involves with the United Kingdom which are supplied by the applicant.
As to the parents' connections with the United Kingdom in other ways, which would be needed to assess whether the parent met the test of intentions in Clause 3(2)(d), detailed inquiries about the nature of these again would not be necessary in most cases. If I may give just one example, and one example only, I envisage that it would be sufficient, for instance, for the parent to give details of such matters as contacts with relatives in the United Kingdom; but that is not supposed to be a test which, if somebody said they had no relatives in the United Kingdom, they would fail. Indeed, the list of items which is given in the amendment is only illustrative, as I think has been made clear, and I do not think the noble Lord intends that an applicant who did not have any of those connections in the amendment but who nevertheless had close ties with the United Kingdom in some other way would necessarily fail to meet the "close connection" requirement. Nor indeed need it follow that an applicant who had only one of these connections would thereby automatically be deemed to have a close connection with the United Kingdom.
I have spoken about the individual. May I give one, and one only, illustration from the point of view of the "close connection" so far as relevant employment is concerned? The noble Lord, Lord Mishcon, spoke about the payment of tax, though there is not agreement on this matter in the Committee this evening. What would be in the applicant's favour, I think, 1444 would be such a factor as evidence that substantial benefits, financial or otherwise, flow from the company for which the person is working to the United Kingdom; but it does not mean that if that particular criterion is not evident the application would fail.
I want to stress that in operating this provision we should like to aim at a simple and soundly-based procedure designed to help applicants who have links with this country to secure citizenship for their children and not to impede them from doing so. We will do our best to keep the administration of this provision as simple and as straightforward as possible. We do not consider that the definition proposed in this amendment would help and, for the reasons I have given, we think it could hinder matters, since it would be only too readily assumed that the list of illustrations was exclusive. As my noble friend himself has said, that would not be the intention.
§ 8.11 p.m.
§ Lord Avebury
I have been compelled to rise to speak by the Minister's example, when he said that if it could be shown that substantial benefits flowed from the company to the United Kingdom, that factor might be taken into consideration in determining whether there was a "close connection" within the meaning of this clause. Clause 3(2)(c) states:that the nature or terms and conditions of that employment involved a close connection with the United Kingdom".It is not the activities of the company which are being examined when the Secretary of State tests compliance with that condition. Rather, it is the nature of that person's employment with the company. It would be quite possible for the terms and conditions for that employment to involve "a close connection with the United Kingdom" without the company itself actually complying with the condition which the noble Lord, the Minister, has mentioned.
The noble Lord introduced a new consideration which has left me even more confused about the way in which this clause is going to be interpreted than I was before. As I understand it, the person has first to satisfy the Secretary of State that he has been in "relevant employment". But the applicant has to go beyond that and has to prove:that the nature or terms and conditions of that employment involved a close connection with the United Kingdom".I am reinforced in my opinion not so much that one can write in a precise list of criteria to be taken into account (as the noble Lord, Lord Geddes, seeks to do with his amendment) but that before we reach a conclusion on this Bill the Government should give people a much more precise indication of what is in their minds. The single example which the noble Lord the Minister was good enough to give the Committee should be extended and he should set out in a further speech, either this evening or at Report stage, the kind of criteria which the Government intend to examine in establishing whether Clause 3(2)(c) is satisfied.
§ Lord Belstead
I believe that if I were to set out at length anything more on this amendment, many of my noble friends and many noble Lords opposite would go into a decline. I must just point out to the noble Lord, Lord Avebury, that he has not quite 1445 brought himself up to date. Almost at the very end of the proceedings when your Lordships were last in Committee on this Bill, my noble friend Lord Geddes successfully moved an amendment so that Clause 3(2)(c) would read:That the nature of the terms of that employment involved a close connection with the United Kingdom".The second example I gave of a "close connection" related to the nature of the employment in which a person is involved.
§ Baroness White
Can the noble Lord, the Minister, tell me whether if one maintained a subscription to, shall we say, Brooks's, Pratt's, or the Athenaeum, that would be regarded as being an adequate "close connection" with the United Kingdom?
§ Lord Belstead
I do not think that I can answer that off the cuff. We are, of course, talking about employment. If the noble Baroness was referring to the nature of the person's intention, then this matter is one that would have to be looked at in view of all the circumstances of the case.
§ Baroness White
With great respect, the amendment to which we are addressing ourselves covers many aspects other than employment.
§ Lord Belstead
Yes, indeed; and therefore what the noble Baroness has said would need to be looked at in all the circumstances of the particular case.
§ Lord Geddes
I realised that I might be stirring up something of a hornet's nest, particularly when I said in moving the amendment that I was conscious of the fact that the same words were used in different contexts in subsection (2)(c) and (d). I am very grateful to my noble friend the Minister for the remarks he has made. They have slightly clarified the situation in my mind.
I am unashamedly repeating my opening comments when I say that it does seem to me to be worrying, to say the least, that of the four criteria set out, the first two are clearly defined one way or the other whereas the second two, very clearly, are not defined. I believe this may cause a great deal of concern to what one might call marginal applicants. Those people who quite clearly have an entitlement are not going to be worried whether or not there is a definition of "close connection" in the Bill because they know that they will be all right. But the marginal applicants will be concerned. I suggest that marginal applicants may be few in number but, if it would do no harm, I should like to see something done—although I have not the experience to suggest how it could be done. Perhaps it could be done by way of a Schedule or perhaps, as Lord Avebury said, it could be done by way of further comments from the Front Bench.
I do not pretend that the examples I gave were in any way satisfactory, but I was careful to incorporate in the words of my amendment,Which may include, inter aria,".I hope that will get around the problem mentioned by the noble Minister, that people would claim that the examples given were comprehensive and that only those given would count. I would ask my noble friend the Minister to give further consideration to what I 1446 believe would be a problem subsequently arising from this lack of definition. Meanwhile, I beg leave to withdraw the amendment.
§ Lord Mishcon
Before your Lordships' pleasure on the question of withdrawing this amendment is tested, may I be persevering and again refer to the complex provisions of this Bill—as well as to the vague provisions of this Bill with which we have just been dealing. I hope that I will do so in a constructive way. Whatever may be the merits or demerits of this Bill, it seems to me that the public relations exercise in respect of this Bill has been poor indeed. I am nervous and my friends are nervous that when this Bill becomes an Act there will be many people who will not know what their rights really are and what the Home Office reaction to various phrases in this Bill will be.
Previously, I appealed on another matter for some kind of pamphlet. There was support for this idea in Committee and there was also some opposition. May I at least plead that at some stage, which I hope will be rather near to the passing of this Bill, there will be a simple guide that race relations officers and others will be able to distribute? 1 do not mean that such a pamphlet should only be for the ethnic minorities but also for people abroad in our dependent territories and for ordinary citizens who are not members of ethnic minority groups. Perhaps there could be a little booklet which sets out in the simplest possible terms the provisions of this Bill and then, in equally simple terms, provides some rough examples of what "close connection" can mean and would mean. It could be stated in very simple language that these examples were not exclusive. The fact that somebody is able to say that his close connection with this country is that there are many members of his family living here, who are British citizens, can be given as an example of what might well be deemed to be a close connection.
I plead with the Government—whether by way of agreeing to amendments that are being put down for clarification, or in some other way—to realise that when this Bill is passed there will be so many people who will not know what are their rights. So many of us, including the right reverend Prelates, are concerned that there should not be undue disquiet among the ethnic minority groups. It would be so helpful if this booklet could tell people, "Under this Act, you are better off than you were under the old Act", if that be so, and the Government are saying that that is so. Then, again, "Women! You will be better off than you were under the old legislation." If that be so, let the booklet say so.
I feel a sense of grave disappointment when, again and again, we are told of the difficulties of definition, because we are limiting things if we define. At the same time, we know in our hearts that when this Bill becomes law there will be so many of our citizens, and people who want to be our citizens, who will have no simple guide whatsoever as to what this Bill means in regard to citizenship, what their rights are and what the phrases used in this Bill really mean.
It may be that I am slightly out of order—I hope I am not—but I hope that I speak in a good cause. I hope, too, that, at some stage, the Government will 1447 be able to tell us that such a simplification by way of a booklet will be in their programme when this Bill becomes a statute.
§ Lord Drumalbyn
We are talking here about a definition of the words "close connection". What I understand the noble Lord, Lord Mishcon, has been talking about is not a definition but a description of the way in which the words will be interpreted. If one looks, for example, at the national insurance scheme there is a separate pamphlet for every single item that can possibly be covered by national insurance. So it does not seem to me to be too much to ask that, at the end of the day, there should be a pamphlet about this; not just one giving a description of the whole scheme, such as the red booklet which exists at the present time, but one giving greater amplification of the way in which the scheme as a whole will work. It is for consideration and it is a way out of reaching a decision on this amendment.
§ Lord Avebury
It may help your Lordships to know that the Action Group on Immigration and Nationality have produced a series of leaflets which explain how the Bill affects particular classes of individuals. In the absence of any proper explanation from the Government, I warmly commend these leaflets to your Lordships. They are available from 44 Theobalds Road, London, WC1.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 78 not moved]:
Lord Geddes moved Amendment No. 79:
Page 5, line 43, leave out ("established in the United Kingdom").
The noble Lord said: With this amendment, I should also like to speak to Amendment No. 81. These two amendments are tied together and they are supported by the meat in their sandwich of Amendment No. 80. Amendments Nos. 79 and 81, taken together, would result in subsection (9) reading:
For the purposes of subsection (3) a partner in a firm is to be regarded as employed in employment with the firm".
As I see it, that would put a partner on exactly the same footing as an employee and would obviate the necessity of Amendment No. 80. I think that I heard the noble and learned Lord the Lord Advocate touch on this subject when discussing Amendment No. 50A, and I would move my amendment if only to get clarification from the noble and learned Lord as to what his views are on this subject. I beg to move.
§ Lord Mackay of Clashfern
As I said in answer to Amendment No. 50A, which was moved by my noble friend Lord Drumalbyn, the Government are undertaking to bring forward amendments to deal with this point. I hope that, in a sense, that will be satisfactory to my noble friend.
§ Lord Geddes
I am most grateful to my noble and learned friend the Lord Advocate. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1448
Baroness Elles had given notice of her intention to move Amendment No. 80:
Page 5, line 43, after ("United Kingdom") insert ("or in a firm closely associated with a firm established in the United Kingdom,").
§ The noble Baroness said: I understood earlier from either my noble friend the Minister or my noble and learned friend that this amendment is also being considered in relation to the text of subsection (9). Therefore, I shall not move it, and leave it to the next time round so as to see what comes out from the Government.
§ [Amendment No. 80 not moved.]
§ [Amendment No. 81 not moved.]
§ Clause 3, as amended, agreed to.
§ [Amendment No. 82 not moved.]
§ Clause 4 agreed to.
§ Clause 5 [Acquisition by naturalisation]:
§ 8.27 p.m.
Lord Avebury moved Amendment No. 82ZA:
Page 7, line 12, after ("application") insert ("to the Secretary of State").
§ The noble Lord said: It might be for the convenience of the Committee if we could take with this amendment, Amendments Nos. 82B, 82C, 84A, 84C, 85A and 87A. First, what I have attempted to do is to take out from Clause 5 the words which leave the Secretary of State under a duty to satisfy himself of the applicant's fulfilment of certain requirements. I have provided that the application for naturalisation should still be made to the Secretary of State under either subsection (1) or subsection (2), but the meat of the amendment is the amendments to the schedule which appear in Amendment No. 87A.
§ What I have done there is to replace the subjective tests, which include tests of character and language, with the objective tests which were discussed in the Green Paper of April 1977. When that matter was under discussion in the Green Paper, no conclusion was reached. The two alternatives, of a set of objective tests and retention of the good character requirement, were set out, the pros and cons were gone into at some length there and the decision was left for further discussion.
I asked, from time to time, whether both the previous Government and this Government would publish the representations which they had received following the Green Paper of April 1977, but I never got anywhere with that. I think the reason for that, so far as the amendment which we are discussing is concerned, becomes clear when one looks at the White Paper. The White Paper says in paragraph 63:
The limited amount of correspondence which has been received on this topic has tended to favour the introduction of objective tests as to character".
That is officialese for saying that there was no support whatsoever for the proposition that subjective tests of character should be retained. I still think that it would have been very desirable for all the representations on this matter to be published so that people could weigh up the arguments for themselves.
§ We as a Liberal Party published our own response to the Green Paper in a document entitled Who's Your Father? We published it in July 1977. We came down very firmly against the idea of subjective tests for the kind of reasons which were set out extremely well, as I thought at the time, in the Green Paper itself. The Green Paper said in paragraph 53 that the requirement was imprecise: that it was easier to say that somebody is of good character than to analyse why this is so, that different people are bound to have different views as to what constitutes good character and that while every effort is made to treat applicants consistently and fairly in this matter it is not always easy to administer the good character requirement satisfactorily. Particularly is this so when no explanation is ever given to the person whose application for naturalisation is refused as to what it was in the test which he failed. I mentioned to your Lordships the other day on another amendment that when I probed this in the case of a particular applicant who came to me for assistance, I found that the reasons why he was turned down were, in my opinion, entirely frivolous. Yet the Secretary of State's decision on the matter was final.
§ The Green Paper went on to say, despite the criticisms which I have outlined, that it was not easy to devise an adequate substitute. They suggested that one way of doing it would be to limit consideration of character to criminal and financial matters: that it might be said that somebody was acceptable for naturalisation who had never been convicted of a criminal offence, with some exceptions, who was not awaiting trial for any offence, or who was not an undischarged bankrupt or a person debarred from acting as a director under the Companies Act. And the excepted criminal offences might be, they suggested, those which were spent under the Rehabilitation of Offenders Act 1974 and offences which led to certain kinds of custodial sentence. I will not go into the details. What I have done in the amendment is to spell out the criteria which were suggested in the Green Paper and to put them into the schedule in place of the imprecise test of character that we have there now.
§ Again in the Green Paper it was said that an objective test, such as we have in this amendment, has drawbacks: that it cannot measure, for instance, whether a man's general behaviour makes him unacceptable to his fellow citizens even if he may have kept free of the courts. When you come to think about that phrase, it is very objectionable and dangerous. We are going to make a man's entitlement to citizenship depend upon his behaviour. As we said in our discussion of this matter in the document Who's Your Father? behaviour which some people would consider bizarre, such as keeping goats in your bedroom, would not necessarily debar you from entitlement to citizenship. One can think of all sorts of perfectly good and useful citizens of the United Kingdom at the moment whose behaviour is odd, to say the least—some of them in your Lordships' House. But the fact that their behaviour is bizarre or even unacceptable to other people does not make them any worse citizens. So a criterion of that sort which is suggested in the Green Paper is to be deplored.1450
§ The Government were going to welcome views on the matter, they said in April 1977, and certain views were submitted. I should like to know what they were because I believe, frankly, that no representations were made on the retention of this extremely vague and general suggestion.
§ Another effect of the amendment which I am proposing is to wipe out the language test. That is a matter which was gone into at considerable length in another place. It is suggested that a person must have a command of the English language in order to fulfil his duties as a citizen. It was said by the Minister when he came to reply to the amendment in Committee that the language test which was applied was not a very arduous one: that it was based on a fairly straightforward conversation, generally carried out with a policeman.
§ I think, for a start, that this is not a very good way of looking at a person's capability in English when an enormous amount depends upon the result. A person who probably has only resided in this country for a few years needs to be naturalised for the sake of his future and for the maintenance of his family in this country. And the person who conducts the interview is a policeman. I love the police; I am very fond of them myself. But I know that there are difficulties, particularly in the relationships between ethnic minorities and the police which I do not think need to be underlined just now. All I am saying is that for the interview to test a person's command of English to be conducted by a member of the police force is not necessarily an ideal way of establishing his entitlement.
Secondly, the Minister assured the Committee that policy has moved in the direction of spoken command of the language and away from a written test. He said:
The terms of the Bill do not say whether it is written or spoken language, but clearly it would be desirable to take a fairly liberal and humane view of the matter".
§ So we are being asked to take it on trust that this is a very simple test: it will be conducted in simple conversation; nobody will be asked to write anything; and more or less anybody can get through it. I know that this is not true. I have had a case submitted to me recently by a correspondent—not by the person whose English was said to be inadequate but by a friend of his. The friend wrote to me and asked me what I thought should be done to enable this person to comply with the test. I advised him to undertake a course of English. After some months the friend wrote again and said that although the applicant had not in fact enrolled for a course of English, he believed that his command of the language had sufficiently improved to enable him to communicate adequately for his day-to-day purposes. This man did not succeed in his application.
§ So long as we have the matter left to the decision of an individual officer we are in the difficulty that there is no way in which the process can be examined. We all know that there is no appeal machinery. If a person is turned down, whether it is because of alleged defects in his character, or because of an insufficient command of the language, the decision is always made by an official—ostensibly the decision is made by the Secretary of State but in practice we all know that it is made by somebody at a fairly low level—and it is 1451 not amenable to either examination or challenge in the courts of law, or even through the intervention of that person's Member of Parliament. I know that in practice many people, faced with a refusal either on the good character test, the language requirement or whatever will go to his Member of Parliament and that the Member of Parliament will write to the Under-Secretary of State and ask him to review the case, but I do not know of any instances where the Secretary of State has overturned the decision of the officials in the department and agreed with the Member who has written on behalf of his constituent or correspondent that, after all, this person was entitled to be registered or naturalised, contrary to the decision which was made by the immigration officer.
§ I want to put one further argument to your Lordships, and I tried to deploy this on a previous occasion, without making much impact on the Government, but I think it is of some validity at a time when public expenditure is being reduced all round and in the Home Office alone expenditure is increasing and the number of civil servants is rising because of the burdens of coping with the existing applications for naturalisation and registration. I am pointing out, as I have done before, that both the number of staff and the expenditure on the department dealing with applications of this sort has increased markedly in recent years—according to the Government, because of the decisions of the courts in 1977 and particularly the case of Zamir. Surely we do not want to continue this process of expanding the department dealing with naturalisation indefinitely. We want to make the process as simple as possible from the point of view of the maintenance of public expenditure at modest levels, as well as the convenience of the applicants.
§ I am of course concerned that people should understand the process and know how they go about becoming a British citizen once this Bill becomes law. I am interested primarily that people should see how it works and that they do not have to scratch their heads and wonder what will be in the mind of the person who will conduct the interview and who is going to test their character and their language. I want to make the thing simple from the applicant's point of view, so that he knows before he ever puts in the forms whether he will succeed or fail, but I am trying to look at it from the point of view of the Home Office as well. Surely we want to sweep away the enormous edifice of tests which go on behind closed doors after interviews conducted by many different people who may find it extremely difficult to set common standards. From that point of view, too, this amendment ought to commend itself to the Government.
§ I take the view that this is one of the most important sections of the Bill. There should be absolute certainty in the minds of the people who come along and ask for our citizenship (which is, after all, a considerable privilege) that they know in advance whether they are going to satisfy the tests and that the Home Office may clearly apply those tests without the difficulties which are inherent—and have always been inherent—in the subjective tests that we have in our law now. I beg to move.
§ Baroness Birk
I think it would really be helpful 1452 to the Committee if I were to speak now instead of moving Amendment No. 83 separately, because it really is on the same point. The purpose of Amendment No. 83, together with Amendment No. 87, and then the new clause that we have tabled for inclusion after Clause 43, is to explore very positively the possibility of a completely new approach to naturalisation.
As we know, under existing law the grant of citizenship by naturalisation is entirely at the discretion of the Secretary of State and has been so for many decades. We should remember, however, that, when this power was first given to the Home Secretary in the 19th century, circumstances were very different. For one thing aliens could enter and remain in this country freely without restriction. The first test of their desirability as residents came with an application for citizenship. Nowadays the situation is very different. An alien has to satisfy many strict tests at the point of entry and is also liable to deportation if his character is not conducive to the public good, even if he has lived here for many years. Any alien who succeeds at all in living here for a period of years therefore has had to get over hurdles which used not to exist at all.
It is in that context that we are now discussing this very important part of the Bill. It is true that aliens from the EEC are subject to less stringent tests on entry and residence than other aliens. They can be deported only subject to the limitations imposed by European Community law, but, since EEC aliens can live and work here and enjoy most of the rights of residence and employment that citizens have and since they come from countries very close at hand, there is less incentive for them to seek naturalisation than there is for other aliens who come here.
Different countries vary greatly in their requirements for naturalisation. Many are more restrictive than we are, since they demand longer periods of residence than we do—sometimes of the order of 10 or 15 years instead of five—but at the same time there has been a strong trend in recent decades for democratic states to have systems of appeal against refusal of citizenship.
In Canada, for instance, applications for citizenship are dealt with in the first place by a citizenship judge, who, if he refuses an application, must give his reasons for refusal and notify the applicant of his right of appeal to the trial division of the federal court. In cases where national security or public order may be an issue, the Governor in Council may make a ruling that a particular grant of citizenship would be prejudicial to order or security, and there is then no appeal against his ruling. In this way, Canada retains the safeguards that the Government are concerned about here, while allowing a much more equitable process than we have for the overwhelming majority of ordinary cases where no threat to the public is involved. In the United States of America, an applicant who is refused can go to a nationality court, where both sides can be heard.
So our system, with its unfettered discretion for the Secretary of State and its extremely vaguely defined test that an applicant must meet, is far less satisfactory from the applicant's point of view than the system in Canada and in the United States, countries which certainly face just the same problems as we do concerning national security issues like terrorism, organised crime and 1453 espionage, and yet do not penalise the great majority of ordinary, law-abiding applicants because of the danger that can be posed by a tiny minority.
Without too many apologies, I am mentioning this question of appeals and objective tests at this moment because it is so central to the whole of the Bill and it is so important that we should get this as right as we possibly can, even though later on we shall be taking the individual amendments. If we do not get some form of objective tests and a system of appeals—and this is relevant to Amendment No. 83—Amendment No. 83 as it stands appears at first sight to confer on any applicant an entitlement to receive British citizenship fairly easily. That is why I have discussed it in the context of tests and appeals.
We are anxious to have the whole question of conditions for naturalisation looked at as soon as we have discussed Clause 5, because naturalisation will be an even more important hurdle in the future than it is now. Under the Bill it will eventually come about that any Commonwealth citizen, any Irish citizen and any woman married to a British man will have to go through naturalisation if they want British citizenship. At the moment people in these categories can be registered instead and this is such an important and such a revolutionary change that we cannot just let it go past quietly or quickly or, so to speak, "on the nod". In the long run naturalisation is to be greatly extended in its application and it is important that, in laying down the conditions for it now, we should get things as right as we possibly can.
I feel quite certain that the Government will take the view that some discretion should be left with the Home Secretary. This is a matter which we can and certainly will argue in Committee as the Bill goes on. The alternative does not have to be between the absolutely unfettered discretion in the Bill as it stands and an absolutely automatic entitlement for any applicant who can meet a short list of requirements.
It is certainly very unsatisfactory that, under existing law, a number of applicants are refused every year without knowing the reasons for refusal. It is also very unsatisfactory that an applicant should know only that he must be of good character without having the least idea, as the noble Lord, Lord Avebury, pointed out, what good character is supposed to be. Mr. Timothy Raison, questioned on this in another place, said:Defects of temperament on their own are not normally held to bar an applicant on grounds of character. Heavy drinking, gambling, or a disinclination to work are not in themselves sufficient to warrant refusal. There comes a point in a very few cases, however, where failings of this type become so pronounced or notorious in the locality that it would be unwise to grant naturalisation".If ever there was a clear example of a subjective judgment on what constitutes good character this is it.
Mr. Raison, of course, mentioned other qualities as desirable, like honesty, integrity, but how are we to know what his department would regard as dishonest. Which would be more serious, petty theft or fiddling on one's income tax and expense accounts, telling lies or exceeding the speed limit? Those who say—and there are many, and we will probably hear it tonight, perhaps from the Government—that the Secretary of State can always be trusted to be humane and just, and he is answerable to Parliament, must remember that 1454 he does not and cannot personally deal with anything but a handful of cases.
On the last day of 1980 there were 54,309 applications for citizenship outstanding, some for naturalisation and some for registration. How on earth can one man deal with all those, even if he just did it with his eyes shut and cursorily signed or did not sign the papers. To go into them at all is physically and mentally impossible. So, of course, in practice they are dealt with by civil servants, and because of the sheer numbers and weight of the work not always by the most senior civil servants. Therefore, surely in the interests of the applicant, and even in the interests of the civil servants themselves, who have a very great burden placed on them, physically, mentally and emotionally, we ought to establish a more clear and straightforward system than the present one. Above all, applicants should know where they stand.
When I was giving that quote from Mr. Raison it was not criticism of him when I said it was a completely subjective test. It has to be, unless there are objective criteria laid down. Applicants should be clear about what tests they have to meet, and if they can show they can pass the tests they ought not to be subjected to the process of discretion, except in the rare cases where national security is involved. Therefore, when we come to Amendment No. 83 what we propose is to substitute the word "shall" for the phrase "may, if he thinks fit". I will end by saying that this is really on the same point as Lord Avebury's amendment, and it is not only really concerned with the alteration of one word; it goes to the roots of our whole policy on naturalisation and citizenship.
§ Lord Pitt of Hampstead
It has been suggested to me that I ought to come in at this stage, having regard to my amendment No. 82A. If your Lordships would permit me, I would like to take Nos. 84B, 86A, 90A, 90B, 122A, 122B, 122D, 122E. They are all on the same point. The difference between my approach and the approach of the two Front Bench speakers is that I am suggesting altering the onus of proof. As the Bill now stands, if somebody is applying for naturalisation he has to prove he is of good character, as I read it; what my amendment suggests is that if the Home Secretary thinks that the man is of bad character the onus of proof should be on him. He should have to say, "This man is of bad character and therefore cannot be naturalised", rather than the other way round. The reason for putting it that way is that if there are facts about this person's character they would be known to the Home Secretary and his officers.
I may add that, of course, there are other amendments which I have tabled which would require some form of appeal, and of course it is in that context that this must be read. But the main point about my amendment is that the onus of proof that this person is of bad character should be on the Home Secretary; that it should not be, as now in the Bill, that he has to prove he is of good character. As the Bill reads, there are certain conditions he has to fulfil, one of them being that he must be of good character, which means he has to prove it. If we put it the other way round, since if the applicant is going to be rejected 1455 he is rejected because the Home Secretary thinks he is of bad character, it should be put that way in the Bill.
§ Lord Jenkins of Putney
If I may say a word in support of my noble friend's amendment, it seems to me that the object of all these amendments taken together is to strengthen the position so far as the applicant is concerned. I believe the situation in which we are in in the country at the moment requires this to be done. It seems to me that to place the applicant in the position of having to demonstrate that he is of good character places him in an extraordinary position. What is "of good character"? Which of us here, if required to prove that, could not be found faulty in one respect or another by anyone who wanted to show that we are of bad character? It seems to me that the reversal of the onus of proof, to require the Home Secretary to show that the person is of bad character, is a simple piece of justice. It seems to me, therefore, taking the group of amendments, and in particular the one moved by my noble friend, unless the noble Lord who will be answering is able to put up a very convincing case against these amendments, among them are some which I think ought to be pressed in order to improve the Bill. Otherwise we should be accused, I think, of going through some sort of stately saraband in this House while outside citizens are at this very moment living in something approaching a police state, in a borough next to the one in which live. This is a situation in which the people feel themselves to be living under that condition—and, whatever noble Lords may think, those people feel themselves to be living in that situation. We have, therefore, a duty to look after this group as best we can and make sure that the conditions in this Bill are such as to turn the scales a little bit for once in their favour.
§ Baroness Elles
Would the noble Lord be kind enough to withdraw his remarks about a police state? I think they are thoroughly unacceptable. Many of us have worked for many years in Brixton and in the area, and know the people of all colours to be peace loving people, although there may be a few, both black and white, who are objectionable and behaving badly; but I very strongly resent the implication that any part of this country is a police state, and I hope the noble Lord will be good enough to withdraw the remark.
§ Lord Mishcon
After that very stern, and it may be well-justified, intervention—I do not in any way wish to quarrel with it—I wonder whether your Lordships would allow me to try to bring a smile to your Lordships' faces. I remember so well the noble Lord, Lord Ave-bury, talking about the sort of people who interview applicants for naturalisation. They are worthy officials, and some of them have an extraordinary way of doing things. I want to tell your Lordships a completely true story of a gentleman whom I dearly loved, and who was a very scholarly man. Having been in this country for some eight or nine years he applied for naturalisation. A police sergeant arrived at his home and thereupon asked him, having taken out a little notebook, why it was that he wanted to become a British subject. This gentleman thought that this 1456 was a wonderful opportunity for him to express his heartfelt view. He started by saying, "It is because I love your sense of fair play; I have such a respect for your sense of tolerance; I think that your countryside is beautiful; I have admired your poets from afar; and Shakespeare was a great playwright whom I had the privilege of trying to translate into my native tongue". The sergeant listened to what lie had to say, looked at him and said, "May I put for business reasons'?" That was a memory of our police force which I assure your Lordships was an affectionate memory that my dear friend has borne for many years and he still tells this story with great relish, having indeed added in the meantime a considerable amount to our national life.
I should like to try and bring this discussion back—having succeeded in making your Lordships smile—to a serious vein and I do so in the following way. I think that it is a very good idea that this is a broad debate and that we are not narrowly taking it amendment by amendment. What we are really trying to discuss is, first, should a question of naturalisation be in the discretion of the Home Secretary bearing in mind that it has been in the past, under successive Governments of different political complexions, and bearing in mind that now of all times we are looking at matters afresh and that now of all times we have a very different collection of people who come within the naturalisation net? There are wives of British subjects who before automatically would have become British subjects, but who now have to apply for naturalisation. There are other examples that your Lordships know perfectly well without there being a recital from me which again come within the purview of the naturalisation application. So there is a very good reason for looking at the situation again.
Quite apart from the question of discretion, should you, when you are dealing with character, be a little more positive in your description of what you mean and should you shift an onus? I know that my noble friend Lord Pitt of Hampstead will forgive me if I say that in my view he has contributed a great deal to this discussion by at least putting it in the arena, if I may put it that way, and that I recognise fully the difficulty of any Secretary of State having to prove positively that somebody is of bad character. If you put that onus upon him I can think of numerous examples where his life would become extremely difficult.
There may be an application for naturalisation from somebody whom the file shows, on very reliable but private reports, is a gentleman who has been associating with the Mafia for goodness knows how many years, who has been involved in business transactions with them of a highly doubtful character and who has come over to this country and is endeavouring to obtain British nationality in order that he may open a casino somewhere and bring some of his Mafia friends with him. I assure your Lordships that I do not know this person and I am merely giving an example.
Let us take it for granted that the Secretary of State has to prove that this person is of bad character. We all know that if that is challenged by cross-examination or he has to give positive evidence of it he would be in a hopeless position. However, all these amendments are coming forward—and this is why I ask the 1457 Government seriously to consider the position—because we have so many more naturalisation aspects to look at, because we are reviewing the whole law and because in this Bill there is no appeal procedure.
What I am trying to do is to put into this debate, which is rightly going very wide—but there are respective amendments down to deal with this matter—the whole picture, because then we shall possibly reach a correct decision. I am not necessarily saying to the Government from this Front Bench that there ought to be an appeal procedure where advocates can be instructed on both sides and there can be examination and cross-examination with all the paraphernalia of an appeal trial, if I may put it that way. I am not necessarily saying that that should be the procedure. Again, if I may speak personally, I can see the difficulties of that. I can see the embarrassments of that and I can even see the impossibility of it.
But would the Government at least look at the situation and would the Minister say in his reply that the Government would be prepared to put into this Bill a provision that there is a judge of the High Court specially assigned for this purpose who will, if an applicant asks for it, review the papers that have gone before the Secretary of State and in reviewing the papers see, for example, whether there is any chance of mistaken identity?
Lord Home of the Hirsel
Could he say, for example, that the individual is not a danger to national security? That surely cannot be taken out of the hands of the Home Secretary and given to any judge to decide?
§ Lord Mishcon
I am much obliged to the noble Lord because he has, in fact, anticipated what I know he would like to see very quickly, and that is the end of my speech. I was going to deal separately, and I assure him very shortly, with the obvious exception that must be made on security matters. I was limiting myself, but had not made that clear yet, to matters of character because we are really dealing with matters of that kind. Obviously if the judge wanted to see the applicant there is nothing to stop him from doing so in order to make sure that the facts which he has in his file appear to be correct. There would be no question of examination and cross-examination and calling witnesses. But what the applicant would be sure of is that a judge of the High Court had seen all the papers and either agrees or disagrees with the exercise of the discretion on the question of good character or anything else.
I come immediately to the point to which the noble Lord made me address myself, and quite rightly. This obviously cannot apply to a security matter. Obviously, on that aspect the decision of the Home Secretary must be a private decision, reached by him on the information that he has. I do not ask, for myself—and I obviously cannot bind anyone else in regard to this view—for any right to review on the security matter, except, of course, that it would not be objectionable, and has been seen in other aspects of our national life, that even on security a judge can see the confidential documents and decide whether or not security of the state is properly involved.
1458 In replying to this debate, if only the Government, without necessarily conceding the shift of onus of proving bad character, instead of the onus being on someone to prove good character—and we recognise the difficulties of that—would come forward and say, "We are sorry, but we must have a discretion. There cannot be an absolute right even though the question of good character is involved". If only the Government would give the citizen the security of knowing that it is not just some busy Secretary of State who has robbed him and his family of something so essential to them, that it is not even a civil servant who has made a mistake or who finds it easier to say "No" rather than "Yes". It is his right, which is written into this Bill, to have his case reviewed—if necessary in private—by a judge of the High Court. If the Government would go that far, then so far as my noble friends and I are concerned, I believe that they would have gone a distance to meet the various points in this debate that I believe are worrying people on all sides of the Committee.
§ Viscount Massereene and Ferrard
I should like to ask a question for clarification about this language question and having sufficient knowledge of English or Welsh. I see in Schedule 2 that it says that the Home Secretary may waive this condition owing to the applicant's age or physical condition. I am not quite sure what that means. Does it mean that he is over 20, 40, 50 or 60 years of age? As for his physical condition, does that mean his mental condition?—because presumably we do not want to bring in many people with a mental condition. I ask that for clarification.
§ 9.11 p.m.
§ Lord Belstead
As that is a waiver that has been put in by the Government, I think that I should try to reply to Lord Massereene's question, but, if he will forgive me, in a moment.
We are considering amendments in the name of the noble Lord, Lord Avebury, which, taken together, seek to give an entitlement to citizenship to an applicant of full age and capacity who can meet the statutory requirements which are set out in Schedule 1 to this Bill. The noble Lord has also proposed in Amendment No. 87A—which among others the noble Lord spoke to—that the good character requirement in paragraph 1 of the Schedule should be replaced by a series of objective tests relating to criminal and financial matters, and that the language requirement should be abandoned altogether. These amendments must presumably be seen in the light of those.
Even if the requirements in Schedule 1 to the Bill are to remain as they stand at present, the Government believe that the amendments of the noble Lord, Lord Avebury, would have some very unwelcome consequences. They would compel the grant of citizenship to anyone who met the requirements in Schedule 1. As Schedule 1 stands at the moment, this would mean that naturalisation could not be withheld from the applicant who has made himself generally unacceptable to the community in which he lives, though he might be said to meet the requirements of Schedule 1. Others who would have to be naturalised are the individuals who, though of good character, in fact. 1459 have loyalties to another country which are so deep that in anyone's reasonable mind they would cast doubt as to whether they ought to have the citizenship of our country conferred on them.
Then there is the individual who, though outwardly of good character, has associations which raise suspicions that he is a security risk. The preliminary requirements in Schedule 1 are a crucial part of the process, but even in their present form a person who fulfils them would not necessarily be acceptable to those who would be his fellow citizens. That is why, far from making new law, Schedule 1 is, in fact, essentially a repeat of the law which has existed since the last century.
I said earlier that we should no doubt look at these amendments, not merely against the background of the requirements in Schedule 1 as it stands; but we should take account also of the change which the noble Lord, Lord Avebury, has proposed should be made to the requirements in that Schedule in his Amendment No. 87A. Really I think all I can say is that the combined effect these amendments in Clause 5, and Amendment No. 87A to Schedule 1, would be to create a system of naturalisation which would compel the grant of citizenship to an applicant who had served a prison sentence of up to five years which, when all is said and done, is quite a long sentence of imprisonment, or who is a known associate of criminals, or who cannot speak a word of the language of this country.
May I turn now to the question of language, which the noble Lord's amendments also raise. We have provided in paragraph 2(e) of Schedule 1 that, for the first time, the Home Secretary would have a discretion to waive the requirement to be able to speak the English or Welsh language for anyone being naturalised where he considers that, because of the applicant's age or physical condition, it would be unreasonable to expect the applicant to fulfil it. I should like to say to my noble friend Lord Massereene that it is deliberately drawn widely to be as fair as possible to people who would be able to say, "I am too old to learn a new language", or to somebody who says, "There are certain physical reasons why I find it very difficult to be able to speak a new language". We think that this is a fair new provision to put in law.
On this matter of language, I had thought that the Government were at one with the Opposition. In the Green Paper of the previous Labour Government they pointed out that it was difficult for a naturalised person to exercise his, or her, civic duties if the person concerned did not understand the language of the adopted country. Nor was it easy to accept that the person was a sufficiently integrated member of our society. I very rarely come to your Lordships' House without hearing from all sides noble Lords saying, "The one thing we want to do in this country is to make sure that citizens really do have equal opportunities. That there are no second-class citizenships." What a way to start when you encourage somebody to take the citizenship of this country to know that in fact they are not able to understand the language, and that they cannot communicate with their fellow citizens, and that they will find it very difficult therefore to discharge their civic duties, which presumably with citizenship is one of the things they will want to 1460 do! Moreover, some knowledge of the language, the Labour Government's Green Paper I think quite rightly pointed out, was an indication that an applicant had committed himself to living here and taking part in the life of the community.
We are also looking at the amendments in the name of the noble and learned Lord, Lord Elwyn-Jones, the noble Baroness, Lady Birk, and the noble Lord, Lord Mishcon. They, in just a few words, remove the discretion of the Secretary of State, and they also put into law objective tests. The strange thing, if I may say so with respect to two noble Lords who are lawyers—and the noble and learned Lord, Lord Elwyn-Jones, is not here at the moment—is that the inclusion of the Rehabilitation of Offenders Act 1974 in their schedule of objective tests would, as I understand it, bear more harshly in many cases upon applicants than would be the current practice.
As many of your Lordships are aware, the 1974 Act is only concerned with offences which attract the sentence of imprisonment of two and a half years or less. Under the terms of this amendment anyone sent to prison for longer than two and a half years would therefore never be eligible at all to apply for naturalisation, however long had elapsed since he served his sentence. But I do not rest the case against the Opposition Front Bench amendments on technical grounds. It is because—and I think that the noble Lord, Lord Mishcon, was quite right to direct our thoughts in this way—as a matter of principle I believe, on behalf of the Government, that the Secretary of State's discretion is very important in these matters.
Finally, I come to the large group of amendments which the noble Lord, Lord Pitt, wished us also to look at. They would change the onus of proof from the applicant having to say, "I have to prove that I am someone who should be naturalised" to the Government, the Secretary of State, being required to prove the opposite. I hope that the noble Lord, Lord Pitt, will not mind my saying that Amendment No. 82A, which would put in the words, "whom the Secretary of State cannot show to be of bad character", rather reads as though it were giving a sort of prize to those who can succeed in covering up their tracks.
I know that the noble Lord does not mean that at all, but when one looks at the noble Lord's group of amendments, when one considers that they are to be taken—because the noble Lord said they were—with the knowledge that the noble Lord wishes to inject into the Bill a right of appeal, then one has to take on board that this whole group of amendments, together with that intention of the noble Lord, Lord Pitt, would enormously restrict the discretion of the Home Secretary as to the character of an applicant.
To show to a court that an applicant was of bad character would inevitably mean relying very heavily on the records of criminal convictions or financial insolvency. These have very considerable limitations in assessing character because they would except people who were known or strongly suspected of being involved in criminal or fraudulent activities and, as my noble friend Lord Home of the Hirsel pointed out, these sort of criteria could not possibly be used in dealing with security cases. I return to the amendments standing in the name of the noble Lord, Lord Avebury. These amendments would remove discretion and would 1461 put instead the series of objective tests which are to be found in the noble Lord's Amendment No. 87A. I am bound to say that on the grounds I have sought to deploy, the amendments are not acceptable to the Government.
§ Lord Gifford
I do not want to spend time on the various small differences which exist between some noble Lords on this side of the Committee as to exactly what criteria should be included in a provision and exactly what form of appeal should be provided for on a refusal of naturalisation. There is an overriding point of principle raised in all these amendments to which the noble Lord, Lord Belstead, has not addressed himself, and that is the fact that a refusal by the Secretary of State—exercising his discretion and not giving reasons—of citizenship to somebody who believes himself to be closely and loyally attached to this country engenders a sense of outrage and injustice, and a sense of impotence in that they cannot even challenge the decision in any kind of forum. If they appeal to a Member of Parliament to take up the case politically, the MP can do no more than write, with whatever endorsements of the applicant the MP can give, perhaps only to be greeted with the reply, "Having looked at it very carefully, I am satisfied that the right decision has been made", and nothing more can be done.
I have a friend who is not British only by the fluke of having been born in Poland and having come to this country at the age of four months. His parents are naturalised British and his younger brothers and sisters are British. He has applied for naturalisation and has been turned down without being given any reason at all. Nobody knows why he has been turned down. The suspicion is that he works for an organisation called Release, which is looked at with disfavour by the Home Office. One knows not for sure because there is no way of testing it. I mention that not to get an answer about that particular case but to demonstrate that there are many cases known to Members of Parliament where people who are turned down simply do not know why.
What is being proposed in this series of amendments would bring justice and an objective examination into the naturalisation system. What is proposed is not impossible; it has been practised for years in the United States. There, the immigration and naturalisation service makes a decision about an application for naturalisation and if that decision is adverse, the rejected applicant can go before a court. The judge can even deal with whether the applicant is of good moral character and is attached to the principles of the United States Constitution. We think that possibly the British courts would prefer a rather tighter criteria. But the principle is clear; namely, that it works perfectly satisfactorily and that there can be a right of appeal against a refusal of naturalisation.
Have the Government looked at the situation in countries where there is such a right of appeal and where people can go to the courts? Have they made a study and, if so, may we be given the fruits of that study? Can they tell us why what seems to be right for another democracy, with fine traditions of justice, is not right for this country? At least let us know what 1462 is the objection, other than a clinging desire by the Home Office secretively to control every aspect of the naturalisation process.
In answer to the one argument that the noble Lord, Lord Belstead, put forward—namely, if we have the more clearly defined criteria, some people with undesirable associates might be allowed to be citizens—I would say that this is really a nit-picking approach. So what if some people with undesirable associates happened to become citizens! There are many citizens who have undesirable associates. There are many undesirable citizens. I suggest that it is far more important that we bring justice into this process than that we worry about the odd undesirable who might become one of our citizens.
In this whole series of amendments let us address ourselves to the basic principle which the noble Lord, Lord Avebury, has raised, not be sidetracked by particular objections to particular ideas, and let us change the way in which naturalisation is approached by the authorities in this country.
§ Viscount Massereene and Ferrard
Before the noble Lord sits down may I say that perhaps one good reason why America has 50,000 murders a year is that in the past she has been too liberal in her naturalisation laws.
§ The Duke of Norfolk
I should like to say to the noble Lord, Lord Gifford, that I think someone must defend the Civil Service. It is a very great service, and the suggestion that the Home Office is unreasonable, that it sits on cases and is unjust gives an idea that the Bill is racial and discriminatory, which it is in no way. The Home Office handles many cases, and I know that it handles them extremely well. The noble Lord quoted the case of a Pole who was turned down. I can tell the noble Lord that last year I secured nationality for two Poles—noble people, they are—who live in Paddington. I can never remember Polish names, much as I love them all. I secured nationality for them through the Home Office, which came back with one or two questions. The people were old and so on, but they became nationals of our great country.
I say to the noble Lord that his speech implied that we on this side of the Committee are trying to make this country a narrow country. We are in no way a narrow country. We have had our doors open to anyone who has ever had to seek asylum here. We opened our doors to the Empire, and then we had to have immigration Acts, otherwise we would have had 900 million people coming here, which of course was not possible. The Bill is an attempt to try to move towards the system that is in force in the Common Market.
I wish for a few minutes to address my remarks to the noble Lord, Lord Avebury. He implied that there was something wrong with the Bill because it might require an increase in the Civil Service. There is nothing wrong with a Bill that brings about change from one system to another simply because it raises the need for an increase in the Civil Service. We have a wonderful Civil Service. If we have to create a situation which calls for more administration, we must 1463 have a bigger Civil Service for that. I only hope that it will be cut down somewhere else, because of course we must not have too big a Civil Service. I have served for 30 years in the Civil Service—in the British Army. We keep the Civil Service small because the enemy controls us—not just finance. I say to the noble Lord, please do not say that there would be some merit in the Bill if it did not increase the Civil Service.
I really rose to my feet because the noble Lord, Lord Gifford, was giving the impression to people who might read these debates that we on this side of the Committee are trying to restrict entry into citizenship of this country of people who are already here. We are not doing that in any way. We are merely trying to move across to the system in the Common Market, where they have this other system of nationality, and I believe that we are doing it very carefully and very sensibly.
§ Lord Gifford
May I ask the noble Duke one question? Is not the logic of what he has just said that one would not allow any appeal to the courts against any executive act because they all acted so fairly, so wonderfully? Whether they are fair in many cases or in all or in a few, that is not an argument, is it, against a right of appeal?
§ The Duke of Norfolk
I do not know whether this is quite the time to be debating the appeal question, but what I was really saying to the noble Lord was that, if some decision is given by the Home Office, I know that you can go back to them two or three times, you can then go to your Member of Parliament, you can come to your Lordships' House and so forth. I do not necessarily believe there need be a High Court judge. When we come to the appeal situation I will most willingly, it may be, support the noble Lord, Lord Gifford. At the moment, I would just ask him to appreciate the points I have made, which are made very sincerely indeed.
§ Baroness Birk
I think that when I spoke I mentioned the problems that civil servants have to deal with, and the Secretary of State. I really think the noble Duke has misinterpreted what has been said on this side of the Committee. When you are given that sort of job to do, it does not mean that you start off having a mean attitude towards it, or being unjust. It means that you are given a job to do which ought not to be given. You are also denying the applicant, unless there is a system of appeals, the right to appeal against it. If this is carried to its logical conclusion, one could argue that there should never be any appeals from one court to another. What we are arguing is perfectly reasonable. Both my noble friends and myself have given the examples of other countries which have both objective tests and also appeals. I think it would be right, and I think most fair-minded people in this country would accept the idea, that there should certainly be appeals, although we are not going into the detail now. It is certainly not a slur on the Civil Service to say that.
§ Lord Elystan-Morgan
The issue before the Committee, as I understand it, is not the question of what has or has not been said in any Green Paper, or what has or has not been enshrined in nationality legislation from 1948 onwards, or what has or has not been done by Home Secretaries from both sides of politics. As I understand it (and I speak with great reservations as a very junior Member of your Lordships' House) the issue is: what principle should be attached in relation to a most important issue in a most important Bill—the issue whether a Secretary of State for Home Affairs, from now onwards if this Bill becomes law, should or should not adopt a more liberal stance and attitude towards naturalisation issues and the method by which they are to be determined?
I would venture to suggest that the principle that is involved here is that a person who has lived in a civilised country for a substantial period of time and who has a genuine desire to become a citizen of that country is entitled, upon making an application to be considered as a citizen, to have that application dealt with in a judicial way. That means that there must be some code of common conduct in dealing with hundreds and thousands of different applications.
Let me come immediately to the point raised by the noble Duke, the Duke of Norfolk. It is not a question of saying that civil servants are less than competent or less than honest or less than genuine or less than compassionate in this matter. However, if one has very wide criteria, if one has matters that have to be decided by value judgments on the part of scores of different civil servants, there will be decisions which have the appearance of being capricious and arbitrary because they will inevitably by definition be inconsistent. That, as I understand it, is the issue. There is no question of any general attack upon civil servants, Home Secretaries or junior Ministers. I was a very junior Minister at one time in the Home Office. Of course, Home Secretaries and junior Ministers are cautious, suspicious and mildy cynical—rightly so—regarding the failings of their fellow men. Of course, they have to bear in mind the issues of national security.
I venture to suggest that on the question of national security, the issue is not determined at the point in time when a person makes application to be naturalised, but at a point in time five years or more earlier when he was allowed into the country in the first instance. It is the presence of that person within our shores that imperils our security, not his status as a citizen or a non-citizen. That surely must follow. My suggestion to the Committee is this. It would be proper to spell out criteria in such a way as to reduce the scope—and inevitably there would be some scope—of value judgments which inevitably have to be made by many different civil servants. One way is to avoid such considerations is the issue of whether or not a person has a sufficiency of language. This is a difficult matter to decide.
May I say in passing how much I appreciate the chivalry of Parliament in including the Welsh language with the English language. The Welsh language has been one of the living minority languages of the United Kingdom. How proper it was to include that. The question of whether or not a person has sufficient language depends entirely upon the viewpoint of he who adjudicates that.
1465 Let us come to the question of good character. I agree with noble Lords who have already spelt out their views in favour of placing the onus upon the Secretary of State. I know that there are many instances in our legislation where a person who applies for a certain status, be it a licence or a right to do something, must show that he has a good character. In my submission, however, the vast majority of such cases deal with it in a different way and place the onus upon the person who objects to show that that person does not have a good character.
The right to apply for naturalisation and the right to have that application dealt with in a judicial way is a basic and fundamental human right. That is the real significance of the issue that we are discussing at the present moment. I believe that it is right that the applicant should therefore not have to show his good character but the onus of proof should be on he who objects. I believe that it is right that the applicant in the first instance should show that he qualifies according to the basic criterion of having been in the country for five years, of having the intention which is as much a question of fact as anything, at that time of remaining in the country or being closely connected with it. I believe it right, too, on matters of national security that in a genuine and proper case a certificate should be issued by the Home Secretary. There is no other way in which that most important matter can be decided.
However, it is surely right that in a matter which so affects a person's basic human rights as an individual he should know the ground upon which he has been rejected and that he should be entitled in a proper case to take that to a higher and appellate tribunal.
§ Lord Avebury
I know this is a very important and sensitive issue—one of the most vital we have had to deal with—but I get the feeling that your Lordships would like to come to a decision on this. If I may, I should like to say just a few words in reply to the noble Duke, the Duke of Norfolk. First of all he said in effect that a slur had been cast on bona fide Home Office officials. I do not want to exaggerate the effect of what he said but I speak as one who deals with Home Office matters on a day-to-day basis in a field where discretion has to be exercised by the Secretary of State or by officials acting on his behalf, and that is in the field of immigration. I have submitted for decision something like 320 cases to the Under-Secretary of State, Tim Raison, since he came to office, and out of those which have been decided—and I am confining myself to those which have already been brought to a conclusion and not those which are still be to be decided—something like 56 per cent. have been decided by the Minister in favour of the applicant; so that while there may be no reflection on the ability or impartiality of Home Office officials, it does have to be observed that when cases do come before the Minister, in the majority that he decides, the officials' decision is reversed. The noble Baroness, Lady Birk, tells us that at the end of 1980 there were some 3,000-odd applications outstanding for naturalisation or registration, so it is obviously quite impracticable for all those to be referred to the Secretary of State. Therefore, in practice only a tiny fraction will be referred to Members of 1466 Parliament for his decision. Therefore, we are dealing with a system which is even more prone to error than the one that I am describing—or at least as much so.
On the second point, I only made the remarks about the increase in the number of civil servants because I felt this was an argument which might apeal to the Minister. I asked at an earlier stage whether he could tell us what proportion of the increased expenditure outlined in the Explanatory and Financial Memeorandum was due to this particular duty, and I should still like to know the answer to that question. The Explanatory and Financial Memorandum tells us that the total extra cost of this Bill is £370,000 at 1981 prices, which is 45 additional staff in the Nationality Division of the Home Office. But it does not make it clear how many of them are going to be engaged in processing the large number of additional applications for registration which are likely to arise because of this Bill.
I should like to make a point which has not arisen so far, and that is that very few people are now being admitted to this country to settle and therefore, one expects, there would be a diminution in the applications for naturalistaion over a period of years. It is necessary for a person to satisfy the residence requirement of being here for five years and for the last 12 months free of conditions before he can even make the application. So as we have brought what is called primary immigration to an end and the people who are entering this country now are very largely dependants of those who settled here many years ago—plus, of course, the United Kingdom passport holders—one would not expect a very large number of applications to be reaching the Secretary of State in the later years of this century, when this Bill will have been in operation for a little while.
So if we do have to make a few mistakes, I think it has been said that that would have to be the price to be paid for the objective system; and it is a choice your Lordships have to make, whether you want something which is far easier to understand from the point of view of both the applicant and the Home Office but which, if you like, is slightly more prone to error than the subjective test, or whether you want to go into the elaboration of this character requirement which itself is not foolproof. Because it is within everybody's knowledge that we have given citizenship to people in the past who turned out to be (I think it was the noble Lord, Lord Drumalbyn, who used the phrase) "bad eggs" in the sense that they finished up in the courts or came otherwise to a sticky end. We probably would not have given those people citizenship if we had known what was going to happen. All the elaborate machinery that we have at the moment, about which the noble Lord the Minister has told us, is simply continuing in this Bill the legislation that we had at the end of the last century. The legislation is just the same as it ever was and we still have not been able to make it a foolproof system. I think that puts it in a nutshell.
We could discuss the question of security requirements and so on, but I believe that these are details and that, if we get the principle settled, then the question of a language test and of how we deal with security risks will all be resolved. What has emerged from the debate this evening is a fundamental difference of opinion between the Government and ourselves on this 1467 issue of objective tests, which I see no way of being bridged. I have no alternative but to test the feeling of the Committee.
§ 9.46 p.m.
§ On Question, Whether the said amendment (No. 82ZA) shall be agreed to?
§ Their Lordships divided: Contents, 28; Not-Contents, 66.1468
|Ampthill, L.||Houghton of Sowerby, L.|
|Avebury, L. [Teller.]||Jenkins of Putney, L.|
|Aylestone, L.||Lauderdale, E.|
|Birk, B.||Llewelyn-Davies of Hastoe, B.|
|Bishopston, L.||Mishcon, L.|
|Boston of Faversham, L.||Peart, L.|
|Chelmsford, Bp.||Pitt of Hampstead, L.|
|Collison, L.||Ponsonby of Shulbrede, L.|
|David, B.||Southwark, Bp.|
|Davies of Penrhys, L.||Thurso, V. [Teller.]|
|Elystan-Morgan, L.||Tordoff, L.|
|Evans of Claughton, L.||Underhill, L.|
|Gifford, L.||White, B.|
|Henderson, L.||Winstanley, L.|
|Airey of Abingdon, B.||Boyd-Carpenter, L.|
|Avon, E.||Bridgeman, V.|
|Bellwin, L.||Campbell of Alloway, L.|
|Belstead, L.||Campbell of Croy, L.|
|Bessborough, E.||Cathcart, E.|
|Boardman, L.||Chelwood, L.|
|Cockfield, L.||Lawrence, L.|
|Colville of Culross, V.||Lindsey and Abingdon, E.|
|Craigmyle, L.||Long, V.|
|Croft, L.||Loudoun, C.|
|Cullen of Ashbourne, L.||Lyell, L.|
|Denham, L. [Teller.]||Mackay of Clashfern, L.|
|Drumalbyn, L.||Macleod of Borve, B.|
|Dundee, E.||Mansfield, E.|
|Eccles, V.||Marley, L.|
|Ellenborough, L.||Massereene and Ferrard, V.|
|Elles, B.||Merrivale, L.|
|Elliot of Harwood, B.||Norfolk, D.|
|Falkland, V.||Romney, E.|
|Ferrers, E.||Sandford, L.|
|Ferrier, L.||Sandys, L. [Teller.]|
|Gainford, L.||Selkirk, E.|
|Gardner of Parkes, B.||Sharples, B.|
|Geddes, L.||Skelmersdale, L.|
|Gisborough, L.||Stradbroke, E.|
|Gowrie, E.||Strathclyde, L.|
|Greenway, L.||Strathspey, L.|
|Gridley, L.||Trefgarne, L.|
|Haig, E.||Vaux of Harrowden, L.|
|Hives, L.||Vickers, B.|
|Home of the Hirsel, L.||Vivian, L.|
|Hornsby-Smith, B.||Wynford, L.|
|Kemsley, V.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendments Nos. 82A, 82B, 82BA, 82C and 83 not moved.]1469
§ 9.54 p.m.
Baroness Birk moved Amendment No. 84:
Page 7, line 18, leave out ("If").
§ The noble Baroness said: With the leave of the Committee, in moving this amendment I shall speak also to Amendment No. 85. These amendments are of very great importance to women who marry British men after the commencement of the Act, and to men who marry British women. Under the Bill as it stands, both groups are to go through a process of naturalisation if they are to obtain their spouse's citizenship. This will replace the existing inequality between men and women, by which wives of British men are immediately entitled, without any residence requirement, to register as British citizens here, while husbands of British women have no right at all to our citizenship and have to attempt naturalisation as if they had no connection at all with the country. One would have thought that at least marriage would be counted as a close connection and was easy to define in that way. But the sex equality which the Government are claiming to introduce is, frankly, a complete fake. I remember very well being told when I was dealing with the Immigration Rules from this Bench that this particular inequality would be put right in the nationality Bill when it came along, but that is not how it is going to work out.
§ It is not sex equality, not so much because of the terms of the Bill itself but because of the way the Bill's provisions will depend upon the present Immigration Rules. The wife of a British man is entitled to entry and settlement here, so she will be able in many cases to fulfil the three-year residence qualification without any difficulty. However, husbands have no right of entry. Even a British-born citizen who is a woman has no right to bring her husband here. Entry clearance will be refused if the entry clearance officer has reason to believe that the marriage was entered into primarily to obtain admission to the United Kingdom, or that one of the partners has no longer any intention of living permanently with the other, or that the two parties to the marriage have not met. This last, of course, is a very obvious device for excluding husbands in arranged marriages, but the other two are so absurdly subjective that really anyone could be barred.
§ How is an entry clearance officer when interviewing a husband alone, or a couple, to come to a reasonable decision that, rather than love or money, the aim of the marriage was to evade entry control? How on earth is he to decide, off the cuff, that one partner is not going to live permanently with the other? Only if the entry clearance officer is satisfied on all these three conditions can he then admit the husband of a woman who was born here or whose parents were born here. Other women born abroad can be refused quite arbitrarily. It is therefore going to be quite impossible for many husbands of British women to come to live in this country so as to build up the residence requirement for naturalisation.
§ In addition, even the wives of British men are going to be worse off than they are now. If a British man living and working abroad meets a woman abroad whom he marries and if his work is such as to require 1470 him to go on living abroad, under this Bill his wife is not going to be able to be naturalised. Under existing laws, she is entitled to be registered as a citizen here just by virtue of the marriage, but that will no longer be the case. These issues we shall want to look at further on Clause 7, but, as Clause 5(2) is the first opportunity to discuss citizenship through marriage, we want to ensure that at the very least it will be possible in future for a spouse of either sex to gain naturalisation on clearly understood terms and with the least possible practical difficulty.
§ Spouses of citizens, I am sure noble Lords will agree, are in a very different position from other applicants. They should therefore be given more favourable treatment. To leave them at the mercy of unfettered discretion is quite wrong. Part of this is repeating the same point as was made by my noble friend Lord Gifford on the last amendment: about letting a few people through the net and therefore creating the fear of an inflexible framework which can be unjust to a great many more people.
§ The noble Lord, Lord Boyd-Carpenter, made exactly the same point when he was discussing employment in an earlier part of the Bill. He made the point that if the legislation was so tightly drawn because we were afraid that a few people who were ineligible might get through the net, it was making it almost rigid and unworkable. This is the same point and it applies in exactly the same way in regard to the marriage rules in the terms of the nationality Bill.
§ We had this argument over the immigration rules in connection with arranged marriages, which after all is the culture of the people in the countries from which they come and we also had the answers of bogus marriages. Possibly there may be the odd one or two, but that is no reason to bring unhappiness and to create such difficult conditions for other people who honestly and legitimately want to get married, to make it so difficult for them and again to put the decision on an entry clearance officer who has to make up his mind in a very subjective way.
§ It is for these reasons that these amendments are tabled in this particular part of the Bill. We shall be discussing the same subject further on in the Bill, but at this point I hope to have some words of cheer from the Government and some assurance from the Minister that the Government will at least consider this, because the Minister spoke about sex equality early in the Committee stage, but it does not seem to be working out that way and I think the Government should look at this very carefully. Then, if they do not like these particular amendments they should come back with something which will achieve the same effect but perhaps in language that they would prefer. I beg to move.
§ Lord Belstead
I do not want to disappoint the noble Baroness who has moved her two amendments in a very moderate and interesting way, but there would be no question of the Government coming back with another amendment in reply to these. I say that for these reasons. The first is the previous Government's Green Paper on this difficult subject—and I acknowledge that it is a difficult subject—the question of what 1471 weight to give to marriage in deciding on naturalisation matters. In paragraph 49 of the previous Government's Green Paper there were four different options as to how sex equality could be dealt with, and it would be tedious if I were to go through the four different options now. However, I should like to make the point that where it is sometimes alleged (not this evening by the noble Baroness) that the Government invariably chose the hardest options in the Green Paper whenever they made a choice, in fact on this subject we did not choose the hardest option. We chose the fourth option in paragraph 49 of the Green Paper, which we thought presented a judicious compromise between the differing points of view which were set out in that discussion paper.
We provided in Clause 5 of the Bill that spouses would have to apply for citizenship by naturalisation although they would have the advantage of not waiting during residence for the normal period of five years but waiting instead for a period of three years. We believe that this approach is preferable to the entitlement which is proposed in these amendments. The approach in the Bill is broadly similar to that followed by other countries, such as the United States, which extends citizenship on equal terms to both men and women.
Incidentally, these amendments would give an absolute entitlement to British citizenship to someone who had never set foot here, who could be unacceptable to his or her fellow citizens on grounds of character, and who does not speak our language at all. I think that to extend citizenship in this way immediately would, moreover, open the way to evasion and would devalue British citizenship.
Instead of that, all we are requiring is that both men and women alike should wait a short time, a good deal shorter than other people, before making application for naturalisation. As the line which we have taken in Clause 5 is along the lines of the previous Government's Green Paper, and indeed not as draconian as one of the lines which was recommended in the Government's Green Paper, I would hope that the Opposition would rethink their line upon this. I believe that Clause 5(2) is reasonable. It is on those grounds that I oppose the noble Baroness's amendment.
§ Lord Avebury
I wonder whether the noble Lord could enlighten me on one point. If one looks at the existing requirements for naturalisation on marriage as set out in the schedule, they are dealt with in paragraph 3. It sets out the requirements which have to be satisfied by the person who applies for citizenship on marriage by either sex. Going down the list, each of them begins "that he was …", "that the number …", "that on the date …"; then in (e) we suddenly have "the requirements specified in paragraph 1(1)(b) and (c)". I take it that what it means is that he satisfies the requirements in those sub-paragraphs. I should be grateful if the noble Lord could confirm that.
§ Lord Avebury
Then we go back to 1(1)(b) and (c), and we see there that the spouse has to satisfy the good character test that we have just been arguing about; furthermore that he has to have sufficient knowledge of the English or Welsh language. So we are making a change in the law which deserves to be underlined at this stage. Just a few minutes ago the Minister was making a great virtue of the fact that the system being carried forward into this Bill has existed virtually unchanged since the end of the 19th century and that it has stood the test of time. I am going to produce a conservative argument now, that the system of granting citizenship to wives on marriage has lasted since I do not know when, certainly since the 1948 Act. No one has ever criticised it, to my knowledge.
Why should we not extend that now to men. Why should we unnecessarily complicate the procedure for conferring citizenship on persons who marry British citizens when we already have a well tried and tested procedure which does not involve the bueaucracy which the noble Lord has admitted we are about to introduce. So I suggest that if the noble Baronesses' amendments are not precisely as they ought to be—no one ever produces drafting acceptable to Ministers—what the noble Lord should do is to consider the spirit and principle of the amendments; that is, whether or not we are going to extend this cumbersome bureaucratic approach that we are adopting to the acquisition of citizenship in general to the particular case of spouses, which has always been dealt with very much more simply and effectively in the past.
§ Baroness Birk
The noble Lord the Minister, as always, has a very engaging, reasonable manner, but what he said was not reasonable at all, as he knows very well. I cannot really believe that a piece of legislation can be right if it is more restrictive, when we are dealing with human beings and human feelings, and this is exactly what is happening in this Bill. The noble Lord, Lord Avebury, was absolutely right when he supported what I said and enlarged on it even more. It is making it very much more difficult for wives than it was previously and, because of the immigration rules, it is not making it any easier for husbands—indeed, it is making it extremely difficult. Once again it is left to the subjective test of an official, however fair and however reasonable the man or women may be.
The Minister quite naturally keeps referring to the Green Paper. I would again say that it was a Green Paper and not a White Paper. It was a discussion paper. Indeed, if some of the criteria were wrong in that, then they were wrong whether it was the last Government or this Government. It does not mean to say that the Government have to copy something that was put forward for discussion by a Labour Government if they think that it is wrong and not right for the people. If they want to use that argument they can, but it is not the way to legislate. I do not intend to press these amendments tonight. I want to look at them again before the next stage to see how they can be dealt with then. In that case, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 84A to 85A not moved.]
§ Clause 5 agreed to.
§ [Amendment No. 86 not moved.]
§ Schedule 1 [Requirements for naturalisation]:
§ [Amendments Nos. 86A to 87A not moved.]
§ 10.12 p.m.
Lord Campbell of Croy moved Amendment No. 88:
Page 50, line 12, leave out ("or").
§ The noble Lord said: We now change to a somewhat different subject. I beg, to move Amendment No. 88 and, as that is a paving amendment, I would suggest that it would be convenient for your Lordships if Amendment No. 89, which is the substantive amendment were discussed at the same time. This is a simple point. The Bill as drafted at present prescribes the English or Welsh languages, but there is a third well-established indigenous language and that is Gaelic. These amendments would add that third language—Scottish Gaelic.
§ The kind of situation which could arise regarding the Welsh language, for which the Bill provides, could also arise in the case of Gaelic, so I submit that it should be included too. This would produce no precedents or difficulties for the Government because there is no other indigenous language in the United Kingdom; this is the third. Gaelic is spoken in communities in particular parts of Scotland, the Western Isles and the West Coast of the Highlands. There are of course, Gaelic speakers elsewhere in Scotland and the United Kingdom. I do not need to tell my noble and learned friend Lord Mackay, who may be replying on behalf of the Government, because his home is on the west coast of the Highlands and he is certainly familiar with Gaelic, if he does not speak it himself.
§ There are about 88,000 speakers of Gaelic in the United Kingdom population. For some of them, in the Gaelic-speaking areas, it is their first language. The Gaelic language and its culture have been supported and encouraged by successive Governments and successive Secretaries of State for Scotland, including myself. I would emphasise that it is not a divisive factor in Scotland; tolerance and common sense have prevailed. Those who speak it or want to learn it are able to do so; others are not forced to.
§ None the less, Gaelic is accepted in Scottish legal proceedings. For the Welsh language, an Act had to be passed in 1967 in order to make it an official language, so that it could be accepted without restrictions in courts in Wales. But no such measure was required for Gaelic, for Gaelic is regarded as an official language, because it has for years been used as such in Scottish courts. Therefore, I hope that there will not be an argument advanced this evening that because Welsh was made an official language by the 1967 Act, then it is an official language and Gaelic is not.
§ The Law Society of Scotland in its comments on this Bill has stated that there is no reason why a knowledge of Gaelic should not also be included. Those who speak Gaelic today—mostly in the West Highlands and Islands—have roots which have been established in Scotland over the centuries. It is true that the language was proscribed for a period after the '45, but so was Highland dress. Both have been completely reinstated for a very long time. There are 1474 many thousands of Gaelic-speaking Scots who went abroad and the language is still spoken in some areas overseas. For example, it is estimated that there are several thousand Gaelic speakers in Canada.
§ Therefore, in the same way as the Welsh language has been included in Schedule 1—because in certain circumstances it might be the appropriate language in naturalisation procedures—so Gaelic should also be included. I am not suggesting that there will be a multitude of cases arising; nor will many cases arise with the Welsh language. But provision should be made for both languages. They are indigenous, originating solely in this country, and are spoken in everyday life in the areas concerned of this country. I beg to move.
§ Viscount Thurso
I consider it a privilege to support the noble Lord, Lord Campbell of Croy, who is moving this amendment. I think that the Government should consider that it gives them an opportunity to do a service for the Gaelic-speaking people of the Highlands of Scotland at this particular juncture, by recognising the position which the language indeed holds within the community, which will be very greatly appreciated, even if it is not frequently used.
But what we are considering, here is the question of someone becoming naturalised, or seeking to become naturalised. When he does, one of the things that he has to do is to demonstrate that he is able to live from day to day within the community in which he seeks to become a naturalised citizen. One can imagine the case, for example, of a Pole serving in the armed forces during the war who has been left behind in a Gaelic-speaking community, and has married a Highland girl; if he lived in a Gaelic-speaking community, his first language, after Polish, would undoubtedly be Gaelic. If one wanted to apply a test to him, as to whether he was able to take part in the community, it would, in fact, be fairer to apply the test of whether he could speak Gaelic than to apply the test of whether he could speak English, because that would be the day-to-day language which was being used in his household and his community.
The noble Lord, Lord Campbell of Croy, has reminded us that in fact after the '45 a number of facets of Highland culture were specifically attacked and proscribed, and anybody using them was liable to imprisonment or possibly worse—probably simple murder—for speaking the Gaelic language, for playing the pipes, or for wearing Highland dress. It was about 200 years ago that this Parliament in Westminster reversed this proscription, and in fact this year we shall be celebrating at Falkirk the bicentenary of the first ever piping competition which was held in Scotland, which was held under the auspices of the Highland Society of London. At that competition a very famous Gaelic bard, Duncan Ban MacIntyre, wrote an ode to Gaelic which was recited at the start of the competition. I shall not read it in full, or indeed in Gaelic, but I shall read a translation of a part of it because it shows to you how honoured the tongue is among the people of the Highlands.No one"—says Duncan Bàn MacIntyre about the Gaelic tongue—no one who makes use of itwill betray it for a bribe;the best point is that it revived,1475after being dormant.'Twere a great disaster if the languageof sterling worth should die:'tis the most trenchant for a bount of wit,wherever it is spoken;'tis the best for jocularity,it has the sweetest, warmest sound;'tis the music of the pipes and harps,of minstrels and composers of songs".Surely this is the kind of language that should be acceptable on the tongue of somebody who seeks to become a citizen of our United Kingdom.
§ 10.22 p.m.
§ Viscount Massereene and Ferrard
I should like strongly to support this amendment. My name is Irish Gaelic and Scottish Gaelic. It actually means "Queen or King of the Hills". You have Massereene in Scotland and in Ireland. You can spell it any way really. The noble Lord, Lord Campbell of Croy, is quite right—of course I would expect him always to be right—that there are 80,000 Gaelic speakers chiefly in the Western Highlands and the Hebrides, but the majority of them can speak English. But that is no reason why Gaelic should not be inserted in this Bill.
There is one old lady I know—I think she is about 92—who lives in a croft. The only words of English I have ever heard her say are, "You are welcome". She makes the most wonderful girdle scones with salted butter, and I often call on her. I should just like warmly to support this amendment. It is the most beautiful language, but it is very difficult to spell.
§ Lord Strathspey
I should like to speak to this amendment. I only hope that I do not repeat anything that my noble friend Lord Campbell has said. While there are rather over 80,000 speakers of Gaelic in Scotland there must be many more Welsh speakers in Wales. There are nevertheless many Gaelic speakers overseas, particularly in North America. It is possible that some of them "do not have the English", as the Gaelic speakers express it.
There are, of course, people of Welsh extraction who live, I believe, in South America who also have no English. They have Spanish. But people at home and overseas are learning Gaelic today. I know of one of my clansmen from Pennsylvania who is now brushing up his Gaelic in Skye as he teaches, among other things, Gaelic in a college in Pennsylvania.
There is no doubt that the Gaelic-speaking community is unhappy over the omission of this language from the Bill. Gaelic is the old natural language of at least the Highlands and consequently I deplore this apparent omission. Furthermore, no reason has so far been given by another place to justify the omission of Gaelic from Schedule 1. I have no knowledge of the language. I wish I had, as I would then be able to understand the meaning of the innumerable Gaelic place names on the Ordnance Survey sheets of the Highlands. There does not appear to be quite the same problem over Welsh names, as normally the English interpretation of the Welsh is given alongside, certainly of street names. I therefore urge the Minister to give favourable consideration to the amendment and include this third indigenous language of the 1476 United Kingdom in the Bill. I do not see that it would hurt the Bill and, so far as I can ascertain, it would mean a tremendous lot to the Gaelic-speaking communities at home and abroad.
§ The Earl of Lauderdale
It gives great satisfaction to noble Lords on this side of the Committee to know that we have a Gaelic speaker on the Government Front Bench, and no doubt he will reply to the debate on this amendment. Plaudits to my noble friend Lord Campbell of Croy for raising the matter. It amazes me that a Bill of this scale got through the other place without this matter having been alluded to apparently and without any fuss having been raised. It just shows that your Lordships' House is one of many nationalities—if of the same citizenship—and many cultures, and we spot what is going on.
One should say now that having just had a Division on a matter which really was an issue between the Civil Service on the one hand and the London draftsman of the Bill on the other, some of us felt that it was all very fine leaving it to civil servants, but here was a case where a Bill of enormous complexity left out one of the languages of the United Kingdom and got this far without being noticed. I am not a speaker of Gaelic, but perhaps I might warn your Lordships that should you ever find yourselves in the West Highlands or the Outer Islands and you are being offered another drink and yet another drink and they say, "Ulya gallora" and you reply, "This is like mañana", they will say, "Not, at all; mañana puts a real rush on things".
§ Lord Mishcon
I think that every noble Lord will share the anger of the noble Earl, Lord Lauderdale, at the sheer incompetence of other places—I will merely put it that way—that have seemed to have omitted this important item. I am sure the Opposition would like to associate itself with all the sentiments that have been expressed. I have only one query, and it is addressed to the noble Viscount whose contribution we always love to hear. Would he kindly inform his fellow Peers whether he wishes to be known in future as either the king or the queen of the hills?
§ Lord Mackay of Clashfern
The number of situations in which someone will come along seeking to have the test for naturalisation in Scottish Gaelic is probably likely to be rather small. Indeed, I think that my noble friend Lord Campbell of Croy did not suggest that there were many people who would pass the test in Gaelic and would not be able to pass it in English. Notwith-standing that, it is quite an important question whether Scottish Gaelic should be put into the Bill at this stage—and it is only for this purpose—and I am particularly happy to be able to say that the Government will very carefully consider whether the amendment, or something similar to it, should be added to the Bill.
Lord Campbell of Croy
I am very grateful to my noble and learned friend, whom I felt sure would give this proposal a very sympathetic ear. Being very practical about the matter, I said that I did not think that 1477 there would be many cases arising which involved Gaelic, but I also added that I did not think there would be many cases arising involving Welsh, either. None the less provision is being made for the Welsh language—rightly so—for the individual case or two that might arise, and what I am asking is that the same should be done for the other indigenous language.
In order to complete this particular debate, may I tell my noble friend Lord Lauderdale that in fact this question was raised in the other place and considered there. But it looked as though those concerned had not considered it fully, and some of the information which arose there was not correct. Therefore, I think it was right that we should have raised it here and so have given the Government an opportunity to look at it. I am most grateful to my noble and learned friend, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 89 not moved.]
§ 10.32 p.m.
Baroness Birk moved Amendment No. 90:
Page 51, line 22, after ("condition") insert ("or for any other reason").
The noble Baroness said: This might seem to be quite a small amendment, but I think it is an important one for a certain number of people, and I hope that the Government will be able to look on it kindly. While we accept that obviously a sufficient knowledge of the English language, or the Welsh language, or, as now appears, the Scottish Gaelic language, will be required as part of the criteria for naturalisation, as we see in paragraph 2(e) of the Schedule the Secretary of State has power to
waive the need to fulfil the requirement specified in paragraph 1(1)(c) if he considers that because of the applicant's age or physical condition it would be unreasonable to expect him to fulfil it".
Those are very helpful, very reasonable and compassionate waivers of conditions.
§ However, I am moving the amendment for this reason. There are, I believe, some people who would not come under the age waiver or the physical condition waiver, but whose situation ought to be looked on rather more compassionately so far as the question of the knowledge of the language is concerned. I am thinking here of a family who have come from overseas. The husband goes out to work and the children go to school. They have opportunities to pick up English, or, if they are somewhere in Wales, it might be Welsh, or in the Highlands, Scottish Gaelic, whereas the wife at home does not have any such opportunity. She might be living in a neighbourhood where the people around her all come from the same country as she comes from, and so she is constantly speaking the language she is used to. She might not be so young. She might find it difficult to learn the new language, but she is perfectly able to go around the neighbourhood. She is a good wife and mother, and a good citizen. She may well be able to walk around and travel on public transport, but she may not have a knowledge of the language, whether it is English, Welsh or Scottish Gaelic, which would come up to the criteria here.
§ She may, in fact—or he may, because this could apply to a man as well—go out to work and be able to 1478 shop (because one can shop, as I think we all know from our visits to countries abroad, in countries where one does not speak the language) and yet not be able to pass a test in that language. I personally am very fond, though I do not have the opportunity very often, of speaking French, and in between my visits to France I forget most of what I knew, but I can get around in France, I can shop in France, though I am quite sure that I could not pass any language test unless it was at a very low level.
§ It is for cases like this, which I think would be difficult to define in any way other than "or for any other reason", that we have proposed this amendment. There may be other considerations. There may be other exceptions that I have not thought of at the moment. Perhaps other noble Lords have thought of them, or the Government may have done; but I think there should be in the Bill this extra proviso, "or for any other reason", which would be able to cover anything that arose and not be quite so restrictive as, even with the waivers that there are now, this particular part of the schedule would be.
§ I hope that the Government will give this amendment some consideration. I do not expect or necessarily want a reply from the Minister tonight. Unless he is going to say "Yes", I would rather he took it away and thought about it and then let me know, because I think this may be something which, on reflection, he will find it quite useful for the Government to have in the Bill. I beg to move.
§ Lord Pitt of Hampstead
I should like to support the noble Baroness in this amendment. I am in general practice, and I have patients who have been living here long enough to be able, in fact, to register or be naturalised but who in fact do not speak English. Their lives are well conducted. I am speaking now, in this case, of women who live at home, where the only conversation that takes place is in the language of the country from which they have come. There are a lot of such people, and some of the people I am talking about are not old and their physical condition is good.
It is worth noting that not all people are linguists. For some people, learning a new language is a very difficult thing; and if in fact you are such a person—that is, you have difficulty in learning a new language—and at the same time it is easy for you to talk in the language that you already know, the chances of your becoming fluent in this new, second language are minute. Therefore, I hope that the Government will accept this amendment, for it then allows for there to be reasons other than merely the question of physical condition or age which will permit the Secretary of State to exempt people from the language tests.
§ Lord Avebury
I should like to support this amendment because I think that if you are going to have a language test at all—and, as the Minister will have realised, I should have preferred to leave it out altogether—then you have got to make it as flexible as you possibly can and you have got to give the Secretary of State the power to cater for every possible eventuality, as he has in other parts of the Bill. One example that occurred to me is this: obviously, if the applicant's physical condition is such as to prevent him learning the English, Welsh or Scottish Gaelic language, that would be a reason for exercising discretion; and in another 1479 place the Minister gave an example of somebody who was blind, even though, as was pointed out to him, blind people do in fact succeed in learning languages. It is not an absolute barrier. One can imagine physical disabilities of that kind which would make it harder for somebody to learn the language, particularly when one imagines the effects of physical disability combined with advancing age. A person would not need to be over retiring age if he was blind to make it more much difficult for him to learn a language than for a sighted person.
I was thinking, also, as I read this clause, that there might be people with mental conditions that would make it more difficult for them to learn a language, and not just people to whom the noble Lord, Lord Pitt, has referred who, like all too many of us in this country, find it difficult to pick up a foreign language, because they are naturally bad linguists. There may be people who lead a perfectly blameless and useful life, but who are suffering from some mental disability which prevents them from learning the English, Welsh or Gaelic language. If they fulfil every other requirement in the Bill, I do not see why that they should not qualify.
This gives me an opportunity of mentioning something that has been on my mind, and that is the difficulties that people have when they come to this country in acquiring the English language. It came to my notice as a result of conversations I had with a refugee from Latin America what enormous obstacles we place in the way of people who have every intention of learning our language and who are young enough, if they are given the necessary resources, to do so within a reasonable space of time.
The example that I want to mention is the difficulty that they have in obtaining bus passes to get from where they live to the school of English. In the case I have in mind a person was living in Hackney and travelling to a school of English in Holborn. The bus fares came to several pounds a week. That would be impossible to pay that out of money from a social security benefit of £19 for a single person. Until the person obtained a bus pass (which eventually was given by the British Council for Aid to Refugees) it was impossible to attend the classes. I mention that as an example to show that there are other reasons why a person may have failed to acquire sufficient knowledge of the English language which would be very difficult to identify while looking at the Bill as it goes through both Houses of Parliament.
Therefore it would be much better to give the Secretary of State a more flexible power such as was proposed in the amendment. I hope the Minister will take the principle enunciated in other parts of this Bill that maximum flexibility should be given to the Secretary of State and incorporate it in this particular part of the Bill.
§ 10.43 p.m.
§ Baroness Gardner of Parkes
I am somewhat concerned listening to the debate. I think that very real anxieties have been raised about the mother who is at home and does not have the opportunity to pick up the language. In the whole time that we have been considering these matters, we have been adopting the attitude that everyone settled in the country at the 1480 moment wishes to take out British citizenship. It may well be that a number will not wish to do so. They will want assurance from the Minister that if the rest of their family chose to take out British citizenship they would have every right to remain in this country as they are presently settled. This is a point which should be clarified because a number of people are beginning to worry about whether they would qualify with the language. I believe that these are unnecessary fears. Perhaps the Minister could clarify this point for me.
I shall have to give thought in the next five years as to whether I shall apply for British citizenship. Perhaps I am the only Member of the Committee who is in that position. I do not think it unreasonable that we should be asked to consider this matter. I should like a comment on what the situation is if people do not wish to take out British citizenship but wish to carry on and live their lives here, as for example do a number of people that the noble Lord, Lord Pitt, described who have already lived here for many years and who have never mastered the language and have no hope of doing so.
§ 10.45 p.m.
§ Lord Renton
In my opinion, naturalisation is something which should be guarded as a privilege and not too lightly granted; but there are necessarily exceptions, and that is what is envisaged in this subsection in the middle of page 51. But it worries me somewhat that age and physical condition are the only matters singled out for the granting of the exception. One thinks instinctively of, say, an elderly married couple who themselves clearly fufil the conditions but who have a mentally handicapped son or daughter. They would not wish their son or daughter to be left out; and perhaps they may think that because the son or daughter did not become British, they would be deprived of the rights which the parents hope to acquire by naturalisation. Although, from a purely drafting point of view, I am not totally sympathetic to the amendment, I do think that the special conditions required to make the exception are too tightly drawn. I do not say that merely to add the words "mental or" would necessarily be right, but I do think this needs looking at.
§ Lord Belstead
What I do not think has become entirely evident from the short debate on this, although I think your Lordships are well aware of it, is that this is a new provision which is being put into the Bill and, if Parliament accepts it, it would enable the Secretary of State to waive the language requirement on the two grounds of age and physical infirmity.
Very briefly, we do not believe that the discretionary power should be extended in the way that is being suggested in the amendment. The language test is a very simple one: it is based on the applicant's ability to communicate with an interviewing officer. It is operated in an informal way and circumstances affecting the applicant such as age are certainly taken into account in reaching a decision. I think that is reasonable.
One of the difficulties about the amendment is that it does not attempt to define what other reasons noble Lords opposite have in mind. I think we can 1481 only speculate that if the amendment were adopted applicants would be in a similar position. They would be aware that there was a discretion to waive the language test but they would not know in what circumstances it would be used, and therefore perhaps they would have less incentive to acquire a sufficient knowledge of the language and might well be tempted to apply before they had reached an adequate standard.
§ Lord Belstead
This, contrary to what the noble Baroness has just said, is not absurd. We are living through a time when it is in the forefront of all our minds that it is a bad day for this country if people are cut off one from another. Maybe—who knows?— a great deal of the troubles we have in the country arise because we do not in one way or another communicate. One of the barriers—only one—to communication is simply language; and I really do think that to encourage people to take up citizenship in this country when they have great difficulty in communicating with others and, as the noble Baroness's own Government's Green Paper expressly pointed out, would not be able to take up their civic rights, would be a disservice. The thing to do is to try to encourage people to have a command of the language before the conferment of citizenship. I do not think that is unreasonable.
Having said that, of course I will look at the points made by my noble friends Lady Gardner and Lord Renton. If I might, I should like to take those away and look at them. But so far as the principle of the amendment is concerned, I think there are real difficulties in making this general discretion which the amendment would wish to establish.
§ Baroness Elles
Before the noble Lord sits down, I wonder whether he would allow me to make just one comment. As he may know, I am a Euro Member of Parliament and have in my constituency something like 30,000 Asians. In that particular community there are of course many women who live very much at home and can hardly speak any English whatever. That is the way of life they follow. The husbands, on the other hand, are out at work and speak perfectly good English, or at any rate it is reasonable enough to pass a language test. What I am afraid of, in the way the schedule is worded at present, is that you will get a husband who is perfectly able to pass the test, and children who speak English as good as the English that you or I learnt to speak at school, but the mother who is at home will probably not learn any English at all, or very little, and may not be able to pass the test. Therefore, one might have the situation where the husband and children would be eligible for naturalisation but the wife would not. I wonder if my noble friend would be good enough to look at this case with some sympathy, to see if there can be a form of words to meet the kind of situation which many noble Lords have raised in the Committee tonight?
§ Lord Belstead
This is a fair point, and indeed it is one that has already been raised in the debate this evening. I know that the Government would be prepared to look at the matter. I do have to say that the 1482 amendment goes very much wider than the specific point which my noble friend Lady Elles has raised.
§ Baroness Birk
I should like to thank the noble Lord the Minister for what he has said, and all the noble Lords who have taken part in this short but very useful debate. On the basis that the Minister is going to look into this matter—and, as I said earlier, I am certainly not standing on the suggested words if the noble Lord can find another definition to cover the specific points which have been made—I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 90A and 90B not moved.]
§ Lord Denham
I think that I ought perhaps to say that I have been impatient for progress at certain stages of this Bill and it would be churlish of me not to tell your Lordships at this stage that I think we have done very well today, comparatively. I should like to thank your Lordships for the good humour which you have shown in doing so.
§ House resumed.