§ 2.58 p.m.
§ Further considered on Report.
Lord Geddes moved Amendment No. 117A:
After Clause 36, insert the following new clause:
§ ("Status of British National
§ . Every person who under this Act is a British Citizen a Citizen of the British Dependent Territories or a British Overseas Citizen shall have the status of a British National.")
§ The noble Lord said: My Lords, in moving this amendment I should like to stress particularly to my noble friends on the Front Bench that in my endeavour to differentiate between citizenship status and nationality status the amendment is not designed in any way to wreck the Bill or indeed alter it in any way other than to underline the Britishness of each category of citizenship. Existing passports for those who after commencement will become British citizens or British dependent territories' citizens (and I may need to revert to that particular form of words on another occasion) of British overseas citizens, all have on page 1 the heading "National Status".
§ The United Kingdom British passport presently says against that heading of "National Status", "British subject, citizen of the United Kingdom and Colonies". After commencement it will presumably say "British Citizen". So far as that person is concerned there should be no doubt or problem as to the nationality. But what about the holder of, say, a Hong Kong British passport? At the moment he or she is all right as against the heading of "National Status", his or her passport also reads "British subject, citizen 262 of the United Kingdom and Colonies". But after commencement, what will happen? How will that person's passport read? Will it read: "Citizen of the British Dependent Territories? If so, what does that mean in nationality terms? I suggest a question that is even more relevant: what will a third country's immigration officer think it means? Those two are not necessarily the time thing.
§ This question has been raised a number of times during earlier stages: what does that person put in the box marked "nationality" when going into another country? I am sure your Lordships know as well as I do that these immigration forms get smaller by the day and the box where you write in the nationality is absolutely minute. If that person has to put in something along the lines of "Citizen of the British Dependent Territories", I suggest he is going to be something of a magician as far as graphical writing is concerned.
This whole question of the status—I again emphasise the word "status"—of nationality is one that has not been defined within the Bill as it presently stands: hence this particular amendment. I have certainly not taken a close look at the wording on every single national passport; but on a Netherlands passport it clearly says on page 1—and in each instance I quote the words verbatim—"Nationality Netherlands". On a United States passport it says, "National of the United States". On a Greek passport it states, not only in Greek but in French, "Nationalité hellenique". On a French passport it states, "Nationalité francaise". On a West German passport it has the interesting words:
The bearer of this passport is German".
§ I stress that this amendment is an attempt to embrace all three categories of citizenship as presently defined in this Bill. Again I stress that the problem is one of national status, not of citizenship, not of the right of entry or the right of abode in the United Kingdom. It is solely a question of national status for international purposes.
Your Lordships will be aware that I personally have a close affinity with Hong Kong, and again I make no apologies for instancing Hong Kong because in numerical terms alone it represents some 80 per cent. of those citizens who will be encompassed within the British dependent territories. In this context, I received yesterday a telegram from the senior unofficial member of the Executive Council of Hong Kong. I should explain to your Lordships, for the benefit of those who are not aware of it, that the two Councils of Hong Kong, the Executive and Legislative Councils, are made up of "official" and, in their terminology, "unofficial" members, the differentiation being that "official" means a government servant and "unofficial" means a representative of the people of Hong Kong. If the House will allow me, I should like to quote verbatim from the telegram, which was signed by Mr. S. Y. Chung, the senior unofficial member. It reads:
As the senior unofficial member of the Hong Kong Executive Council … I have been asked by all unofficial members of both the Executive and Legislative Councils of Hong Kong to express our … strong support for your amendment which would place it beyond doubt that citizens of British Dependent Territories remain British nationals.
One of our main concerns from the beginning has been that the British connection and status of citizens of the United Kingdom
and Colonies in dependent territories who already have no right of entry to or abode in the United Kingdom"—
I would stress those words, my Lords—
should not be reduced in any way. To preserve our British connection and status we maintain that the British nationality of CBDTs should be clearly stated in the Bill. We ask for nothing more than to provide under the law the assurances given by HMG in the course of the Third Reading debate in the House of Commons. It is hoped that the depth of our concern on this point can be brought home through the debate and that our appeal to remain and to be seen to remain British will be treated with sympathy and understanding".
I fear an adverse reaction to my amendment from my noble friends on the Front Bench and I think it is relevant to see what Government spokesmen have said on this subject. Indeed I am glad to see my noble friend Lord Trefgarne on the Front Bench, because it is with his words that I should like to start. At column 338 on 22nd July he said in reply to the noble and learned Lord, Lord Elwyn-Jones:
The important point is that it would be wrong to put in the passport something that would be misleading, and to suggest"—
I am paraphrasing just marginally—
… that the person concerned was a British citizen would not be accurate and would not be a proper thing, I would say, to include in the passport, because they will not be British citizens".
Again I would apologise for repetition. This amendment does not attempt to alter in any way the qualifications or categories of British citizens. It attempts to define their national status. I therefore suggest that, while one may or may not agree with my noble friend Lord Trefgarne on the subject of British citizenship being stated within the passport, his words did not include British nationality.
The second example I should like to give concerns my right honourable friend Mr. Timothy Raison, the Minister of State at the Home Office, who said on 4th June at column 1188:
I confirm that citizens of the British Dependent Territories will remain United Kingdom nationals in the sense that the United Kingdom can afford consular protection and represent their interests internationally—both of which, of course, we intend to continue to do".
I intend to quote only one more example which is most relevant. It is a statement made by Mr. Richard Luce in another place on 28th April in column 1387 of Commons Hansard—and I shall paraphrase in the context very slightly. He said:
In the wider context of international law generally, the term 'national' means the relationship between a person and the State which is prima facie entitled to represent his interests in the sphere of international relations. In this sense it goes without saying that the people of all our dependencies are United Kingdom nationals, since the United Kingdom is clearly responsible for the dependencies internationally".
From two Ministers of the Crown we have, I submit, statements of incontrovertible and irrefutable fact, acknowledging the national status of citizens, certainly in the context of which they spoke of the dependent territories as British. My noble friend Lord Belstead and my noble and learned friend the Lord Advocate have told us repeatedly in this House that the Bill does not create different classes of citizen in the context of first, second or third class, but rather three different categories of citizenship with varying rights. Ignoring in the context of this amendment whether
it is right or wrong to have these three categories, there seems to be no argument at all against the fact that all three are British for the purpose of national status. To put it another way, if they do not have the national status "British", then I ask: What status do they have? In moving this amendment, I should just like to repeat the last phrase of Mr. Timothy Raison's comments in another place on 28th April:
It goes without saying that the people of all our dependencies are United Kingdom nationals, since the United Kingdom is clearly responsible for the dependencies internationally".
§ My Lords, I beg to move.
§ Lord Elwyn-Jones
My Lords, we on this side of the House welcome this amendment which has been so persuasively moved by the noble Lord, Lord Geddes, and whose significance in regard to Hong Kong, with which he is more familiar than any of us, he has underlined. As I understand it, the amendment would simply affirm an undeniable fact; namely, that all the various categories of Britishness or, if that sounds too pompous, being British in this Bill, being a British citizen, a citizen of the British dependent territories or a British overseas citizen, have at least one thing in common. They all denote persons who hold British nationality in some degree or other and this conclusion is, indeed, reflected in legislation to which the Bill itself refers in Schedule 7.
One sees on page 64 the reference to the Civil Aviation Act 1971:In section 64(1) (interpretation), in the definition of 'United Kingdom national', for paragraphs (a) to (e) substitute—(a) a British citizen, a citizen of the British Dependent Territories or a British Overseas citizen'.".Then on page 66 we see the reference to the State Immunity Act 1978 and that the definition of "national of the United Kingdom" means:(a) a British citizen, a citizen of the British Dependent Territories or a British Overseas citizen".Then, finally, in Amendment No. 160, which is to be moved from the Government side, there is the reference to the Deep Sea Mining (Temporary Provisions) Act 1981, where we read:(c) in subsection (6), for the words from and references onwards substitute—'United Kingdom national' means—It is quite true that the term of art used in those statutory provisions is "United Kingdom national", not "British national". But that goes to show, first, that it is quite appropriate to use one generic term to embrace all three categories of British citizens with which we are concerned in this Bill. Secondly, if it is appropriate—and I submit that the legislation we have already noted shows it to be so—to refer to citizens who may be living in different parts of the world as "nationals of the United Kingdom", it cannot surely be wrong to refer to them by what I submit is the more felicitous term "British national". It is significant that at this point of time, the Bill not having become law, their actual designation in law, as the noble Lord has indeed pointed out, is that 265 they are citizens of the United Kingdom and Colonies. Some few belong to the colonies—there are not many left. The vast majority are covered, I submit, by the first part of the designation; namely "citizens of the United Kingdom".
- (a) a British citizen, a citizen of the British Dependent Territories or a British Overseas citizen;
- (b) a person who under the British Nationality Act 1981 is a British subject; or
- (c) a British protected person (within the meaning of that Act)'.".
Although the title of the Bill is the British Nationality Bill, British nationality as such is nowhere defined in it at the present time, and the main importance of this omission is that the Bill nowhere identifies the international status of nationality law. That law has two facets; namely, the domestic and the international. Article 1 of the Hague Convention of 1930 states:It is for each state to determine under its own law who are its nationals. This law shall be recognised by other states in so far as it is consistent with international conventions, international custom and the principles of law generally recognised with regard to nationality".Article 2 of the convention states:Any question as to whether a person possesses the nationality of a particular state shall be determined in accordance with the law of that state".To command acceptance in the international community generally, definitions of "nationality" must conform with certain accepted international concepts, and the most dominant of those is close and intimate connection between the citizen and the state purporting to confer nationality upon the citizen. This definition in the amendment does not widen in any way the scope of British nationality which is implicit in Parts I, II and III of the Bill. There can be no doubt under this Bill that a citizen of the British dependent territories will have British nationality, and so will a British overseas citizen. If, after commencement, a question arises about diplomatic protection—this is, of course, of very great importance for the people concerned—it will be of great importance that it should be clear which persons are British nationals on the international plain and which are not.
To declare that all the people mentioned in the amendment are British nationals would be, for our own purposes, a clarifying amendment. For international purposes, it would be a declaratory one, but one which would be of considerable value to those affected, in relation to their dealings with the Governments, immigration officers and authorities of other countries. To pass the amendment would, we believe, be an important affirmation to all those who are to be British under the Bill, but who are not to get the new British citizenship. It would be an affirmation of continuing British responsibility and British connection.
The Government have often insisted that this Bill does not establish first class, second class and third class categories of Britishness, and that they are impelled by the pure and honourable motive of defining a citizenship for the United Kingdom alone, adding, in keeping with present day realities, alongside of and not superior to other forms of Britishness. If these protestations are sincere, then I submit there can be no objection whatsoever to including this amendment in the Bill. As I ventured to say, and as the noble Lord who moved the amendment has indicated, the affirmation contained in the amendment would be significant not only for the people directly concerned, but more particularly in the context of the countries 266 and powers with which they may have to deal. Accordingly, I greatly hope that this helpful and desirable amendment will be approved by the House.
§ 3.20 p.m.
Lord Campbell of Croy
My Lords, I can understand the reasons why my noble friend Lord Geddes has moved this new clause. It is a new way of bringing together the three forms of citizenship proposed in the Government's Bill. The Government's original scheme was upset by the inclusion of the clause on Gibraltar at the Committee stage and it was nearly upset again last week when the clause concerning the Falkland Islands was very nearly included, too.
Schedule 6 to the Bill lists 17 British dependent territories. The case for Gibraltar was argued very cogently at the Committee stage on the basis of its association with the European Economic Community. The case for the Falkland Islands was argued for the reason that all its inhabitants were of United Kingdom origin or of United Kingdom stock. No doubt special cases could be argued for others in Schedule 6, but our aim in this House must surely be that none of these territories should feel that they are being discriminated against. The Government's objective of equality no longer exists, but the Government made it clear last week that they have left the option open as to what action they might propose in another place on that point when the Bill reaches that other place.
This new clause would have the effect of giving all these 17 territories a uniform, continuing, close link with this country—not a right of abode. I agree with my noble friend Lord Geddes that whatever designations may eventually be included in the Bill, we are running the risk of losing the confidence of many who want to retain a very close link with the United Kingdom but who do not expect or want to live here.
I, too, should like to refer to Hong Kong. Those who in Hong Kong are now citizens of the United Kingdom and Colonies in general do not expect a right of abode in the United Kingdom. To foist, however, upon them some apparently third rate form of citizenship would give offence and we should run the risk of losing the friendship and understanding which presently exists between our country and Hong Kong.
The reason for referring to Hong Kong is that it is so much larger than any of the other 16 territories in the list. I am speaking in broad terms—not just about population. About half of the population are citizens of the United Kingdom and Colonies, coming to about 2½ but in gross domestic product, in impact upon the world, in international trade, Hong Kong dwarfs all the others on the list. It is massive in relation to those other territories which are either small islands, too small to run their own Governments, or groups of islands. We must take into account that the schedule which we are considering includes one very significant territory.
Of the citizens of the United Kingdom and Colonies in Hong Kong the large majority are British or Chinese in origin. There are several thousand British persons in Hong Kong—mostly, I must add, of Scottish origin. There are many, many more Chinese. The large majority of those regard themselves as residents of Hong Kong and not as Chinese. They do not seek, I repeat, the right to enter or to live in the United 267 Kingdom, but the very close relationship that exists between Hong Kong and this country is good for the United Kingdom and it is also good for the free world. The improving relations with China that are now developing, also the rift between China and the Soviet Union, have made Hong Hong a vital and important part of the free world.
It is clear that the Peking Government would not welcome an independent Hong Kong. There would be a third Chinese Government in the Far East besides the Government in Taiwan. As a result, colonial status (although anomalous given that Hong Kong could very well run its own affairs) and being part of the British family of territories is appropriate and meets the wishes of all concerned. People of British stock and people of Chinese stock in Hong Kong are working closely together, and efficiently and successfully have produced a highly industrial state which is a most successful international trading entity. This entity promotes British interests and plays an important role for the benefit of the free world.
This new clause may not be the way to solve the problem. I am not sure that I can support it. No doubt my noble friend on the Front Bench may see difficulties in it. I myself certainly see some. But what it does—I think my noble friend Lord Geddes has done a useful service to the House—is to bring out the need to keep the dependent territories as near relatives of the United Kingdom without apparent discrimination.
§ Lord Tanlaw
My Lords, I hope that the Government will support the amendment moved by the noble Lord, Lord Geddes, and insert this new clause. Other speakers have said, and I feel, that it will maintain the vital link of nationality between Britain and the British dependent territories. Above all, however—this is where it affects my own amendment which is the last one on the Marshalled List—as the noble and learned Lord has said, the Title of the Bill states that this is an Act to make fresh provision about citizenship and nationality. First, the inclusion of this new clause would make my amendment superfluous because there is no other reference in the Bill to nationality. I trust the noble and learned Lord will look very carefully at the reasons why the noble Lord, Lord Geddes, is asking that this new clause should be inserted. Secondly, it makes the Bill much more honest, certainly in its title and in its interpretation by those who live in the British dependent territories.
My Lords, having listened to the speech of the noble Lord, Lord Geddes, in moving his amendment and to the speeches of those who spoke in support of it, it only remains for me to say from this Bench—though it would be with more confidence if more of us were here—that we strongly support this amendment. It seems to me that this amendment goes a long way towards removing the anxiety felt by myself and by others, quite apart from those who are more directly concerned in the East Asian community who under the present terms of the Bill will not achieve British citizenship. It would go a long way towards removing those anxieties and that resentment which undoubtedly they feel. It certainly goes a long 268 way towards alleviating my own concern, expressed the last time we were in the Report stage, with regard to the inhabitants of the Falkland Islands.
As I listened to the noble Lord, Lord Trefgarne, during that debate, which we divided equally on, as regards the Falkland Islanders it seemed to me that he was making the point by inference that the only matter dividing the three categories of citizenship proposed in this Bill is the practical one of the right of abode. If that really is the case—and I do hope it really is the case—it seems to me that there is no more appropriate way of giving expression to it than by creating this status and title of British nationality. I should like strongly to support this proposal.
§ Lord Somers
While I wholeheartedly agree with the spirit behind this amendment I can see certain difficulties. I am thinking, for instance, of the larger dominions which have had their own Governments for many years now, such as Canada, Australia and New Zealand. In those countries there are many who have the most loyal feelings towards our country but there are considerable numbers—and I am thinking particularly of Australia—who are rather opposed to the ties with Britain and I think would be quite glad to see the last of them. I wonder whether it is right to impose upon these people the status of British national when quite frankly they do not want it. Would it not perhaps be wiser to make it available to any who want it, without question, and not to make it compulsory?
The Lord Bishop of Norwich
My Lords, those of us who sailed into Hong Kong harbour in August 1945 with the armed forces will remember the tremendous warmth of welcome that we received at the time of the surrender of the Japanese forces to the British forces and the tremendous sense of gratitude felt by not only those of British stock who were released but the wide number of Chinese who welcomed us so warmly, and anything which can be done to maintain that warmth of relationship between Britain and Hong Kong is well worth maintaining. As I see it, this amendment tabled by the noble Lord, Lord Geddes, makes no attempt to overthrow the three major categories in the Bill and therefore seems not to disturb the main thrust, but it does take particular opportunity to maintain the British national identity for those who feel it very strongly. Having heard from the unofficial senior member how strongly they feel about this in Hong Kong, I think it would be a tremendous thing if your Lordships' House supported this amendment.
§ Lord Milverton
My Lords, I should like the Government to give this some consideration and to accept the amendment moved by my noble friend Lord Geddes, and after having heard the noble and learned Lord, Lord Elwyn-Jones, and others I find myself supporting the amendment, which seems sound and appropriate.
§ Lord Carver
My Lords, as one who supported and spoke in favour of the amendment, which was passed by your Lordships' House, granting the status of British citizen to the citizens of Gibraltar, I should 269 like to make quite clear my support for this amendment. I know very well from my own personal experience the way in which foreign immigration authorities do not understand what is written on one's British passport. One of my passports was issued in Kenya when it was a colony and another one was issued in Singapore, and I can remember on one occasion coming from Holland into Germany when I was stationed there and in handing it back to me after consulting a long list the German immigration officer said, "You are jolly lucky that you do not come from Trinidad and Tobago".
In my view this is a very important point, and having considerable knowledge of the affairs of Hong Kong I agree with the point made by the noble Lord, Lord Geddes, that it is of great importance to all the categories of British citizenship, as it will be, that other countries when imposing their own immigration control should clearly understand that the man who is trying to go through has the protection of British nationality. That is extremely important and therefore I hope that your Lordships' House will accept this amendment.
§ 3.34 p.m.
§ Lord Trefgarne
My Lords, although this amendment does not specifically refer to Hong Kong, my noble friend Lord Geddes has not sought to hide his particular concern for the people of that territory and indeed I would commend him for his single-minded pursuit of their interests, as he sees them, during the passage of this Bill. Of course, he has enjoyed no small measure of support here this afternoon.
I want first to make it clear that the Government are no less determined than my noble friend to maintain present links between Hong Kong and the people of the United Kingdom and to do everything we possibly can to ensure that the people of the territory understand beyond peradventure that our affection for them and our concern for their welfare are not transient things but permanent in every sense of the word. There is no question of this Bill having the slightest adverse effect on our relationships or our ties. Indeed, it is a source of great satisfaction to us that there exists in Hong Kong such a strong feeling of the need to maintain and even to strengthen the links which exist between us. May I quote the words of my right honourable friend the Home Secretary when he said in another place on 28th January:We are aware of the strength of feeling in Hong Kong on the need to maintain the ties between the Territory and the United Kingdom. I should like to reaffirm that the proposed legislation is in no way intended to weaken those links, to which we attach great importance".I welcome this opportunity to reaffirm that relationship, and that it is as important as ever to Her Majesty's Government. As I have made clear, the Government opposed the Gibraltar amendment precisely because we believe that all citizens of the British dependent territories should be treated uniformly, but its passage against our advice does not alter in any way our obligations to the people of Hong Kong and the other dependent territories.
There is no doubt in the Government's view of the strength of the links between Hong Kong and the United Kingdom. Neither can there be any doubt, in the Government's view, that the status of citizen 270 of the British dependent territories is a "British" status. There can be no grounds whatever for fearing that this will not be understood. But, having decided that we need a distinctive citizenship for the United Kingdom, we have to create a different status for the dependencies and for the other categories, avoiding the doubt, dispute and recrimination which has arisen from our present laws, particularly over the immigration consequences. This we have done. We cannot now blur that distinction without seriously undermining one of the basic principles of this nationality legislation.
It has been said that a more clearly defined link between the United Kingdom and our various dependent territories in the new citizenship titles would be of value especially, for example, to travellers to third countries. Your Lordships will agree, I believe, that the new description of "citizen of the British dependent territories" is clear and unambiguous—clearer than the present status of "citizen of the United Kingdom and Colonies without the right of abode in the United Kingdom". The Government will explain fully to other countries the new citizenship titles and their meanings, and Her Majesty's Government intend to continue to provide consular representation as at present to these categories in the unlikely event that there is any doubt.
I turn now to the amendment itself and I am afraid that I see serious difficulties with it. First, it is particularly unfortunate that this amendment would cover many people who are not only subject to our immigration control but who also hold other citizenships. The 1.3 million future British overseas citizens in Malaysia are probably the largest category here, though it is not clear why my noble friend has omitted British protected persons and British subjects in special categories.
Secondly, the concept of "British national" is not something known to our domestic law, nor is it anywhere defined in the Bill. Indeed, beyond the provision of consular assistance and public representation there is no unanimity among international jurists as to what rights or obligations exist between a state and its nationals, particularly in relation to the right of entry and settlement. Thus, the additional words would serve only to generate confusion, to blur the distinction between the new categories of citizenship and, worst of all perhaps, raise expectations among the less well informed which in the event could not be realised.
During the course of his speech my noble friend Lord Geddes said that he thought the people of Hong Kong would amount to about 80 per cent. of the total of citizens of British dependent territories and British overseas citizens. I fear that my noble friend is not quite right in that; the figure is, I think, nearer 55 per cent. It may be that my noble friend did not take into account all the categories of British overseas citizens who would be covered by his amendment.
My noble friend also referred to the question of landing cards which one fills in on arrival at a foreign country. On such cards, and usually in other similar circumstances, the information required is a precise description of the national status of the person concerned. This is the information our immigration officers are seeking from the question. They need it to determine the person's position under our immigration laws. Similarly, the immigration officers in 271 third countries may need the information to determine the position under visa abolition agreements. For these purposes the short answer "British" is not sufficient. At present if a person entering the United Kingdom completes the landing card saying "British" and he is not a patrial, the immigration officer will need to add to or alter the entry on the landing card accordingly.
The noble and learned Lord, Lord Elwyn-Jones, in his interesting speech referred to the fact that the words "British national" do appear, I think in Schedule 7 to the Bill. But, of course, used in this way the term "national" is primarily a drafting device simply to describe the various categories to whom that particular legislation applies. It does not imply that this collective description is necessarily applicable in other circumstances. As the noble Lord recognised, the term is used frequently in international treaties in the same sense, with the scope of the term varying from treaty to treaty or from Act to Act according to the circumstances.
Indeed, the noble and learned Lord may be interested to know the position under the European Convention of Human Rights in this matter. The fourth protocol to that convention provides that no one shall be deprived of the right to enter the territory of the state of which he is a national. I agree that the United Kingdom has not yet ratified this convention, but the provision in it illustrates yet again, I suggest, the different interpretations that can be placed by different states on the relationship between the state and its nationals.
In the absence of a recognised definition, at least in our domestic law, some may turn to a dictionary. They will find the word "national" defined as—and I am quoting from the Concise Oxford Dictionary—"A citizen of a specified country". In other words, under this amendment citizens of the British dependent territories, and indeed British overseas citizens, might think that they were also British citizens, which of course they will not be. It is this sort of understandable but undesirable confusion that the Bill seeks to eliminate but which this amendment will in fact perpetuate. It is, after all, one of our major objectives to provide a new scheme of citizenship which makes clear whether a person belongs to the United Kingdom itself or to its existing dependencies or its former dependencies. Having gone to the length of creating separate citizenships we would not favour a measure which suggested that the holder stood in the same relationship in citizenship terms to the United Kingdom. He does not, and it is important that we do not suggest this. As I have said, I am afraid we see real difficulties in this amendment which would run counter to our basic aim of three distinctive citizenships. I hope, therefore, that my noble friend will not press his amendment, but if he does I hope that your Lordships will not support him in the Lobby.
§ Lord Elystan-Morgan
My Lords, whether this amendment is or is not carried, the situation undoubtedly will remain that all passports issued in respect of the persons dealt with under Part I, Part II and Part III of this Bill will be British passports. They will carry the imprint of the Royal Arms; they will be issued in 272 the name of the Foreign Secretary, who will enjoin all persons dealing with the citizens that they cover to allow them to enter and pass through territories without let or hindrance. They will be persons travelling under British passports. Of that there can be no doubt whatsoever.
The amendment is concerned to a large extent with the very special, if not indeed unique, position of the people of Hong Kong, but, of course, it has a very much wider effect than that. There are many, many people in many, many territories the world over who will feel doubt and uncertainty coming in the train of this legislation, and who would be comforted and made to feel more secure if this amendment were to be carried. As the noble Lord, Lord Geddes, has already made very clear, there is not the slightest danger or possibility that the 5 million people of Hong Kong, or indeed any percentage of them, will say that they wish to avail themselves of any gap that had been made in the wall of the Government's certainty to combat a flow of people into the United Kingdom. And indeed there is no suggestion that there should be any change whatsoever from the attitudes currently existing. Of the 5 million people in Hong Kong some 2.6 million are at this present moment citizens of the United Kingdom and Colonies. Hong Kong, like so many other territories, is subject to a strict voucher quota in so far as immigration into the United Kingdom is concerned. The quota at the moment—I am sure I shall be corrected by the noble Lord the Minister if I am wrong—is 150 per annum. Last year 100 persons availed themselves of that privilege. That is the scale that we are talking about in immigration terms.
But, of course, this is not a question of figures; this is not a question of legal semantics. It is a question of the people of Hong Kong fearing that something might be done in this Bill that will have evil and disastrous consequences in so far as they are concerned. I am sure that there is no one in this House who would wish to see the position of Hong Kong vis-à-vis any other power or any other part of the world weakened in the slightest degree. That is the purpose of the amendment.
The Minister makes the point that there is no universal definition of nationality. For my own part I could not see how that in itself advanced his argument. The rules of international law in this matter—and I certainly do not seek to pose as any expert at all in that wide and distinguished field—as I understand them are these: first, that it is entirely a matter for each state to define nationality as far as its own citizens are concerned. It is for that state to say who shall enjoy its services, who shall have a right of abode, who shall have the privilege of being protected by its passports. The second rule is that when that state expects other countries, other states, to consider the rules of nationality that it has drawn up, if those rules of nationality are to command any universal acceptance they must conform with general universal principles; in other words, they must define nationality in such a way as to adhere to the principle of a close and intimate connection between the subject and the sovereign state that gives him nationality. That, as I understand it, is the effect of the decision of the International Court of Justice in the Nottebohm case 273 of 1955.
It is necessary for three purposes in my submission that there should be a definition of "nationality". First, for internal purposes—and that is, it seems to me, the main purpose of the legislation with which we are concerned. Secondly, for purposes connected with our membership of the European Economic Community. That was done in December 1971 and is enshrined in the Treaty of Accession. Thirdly, and perhaps most important of all, it is necessary that we should declare and define our nationality so far as the whole world is concerned.
The fact that different countries have different attitudes towards nationality cannot be any argument against that duty. The noble Lord the Minister is quite right when he says that there is no universal acceptance of this; there will never be. Dr. Weiss in his distinguished work on nationality and statelessness of a quarter of a century ago put it in this way:There are as many definitions of 'nationality' as there are of 'sovereign states'";but that makes no difference whatever to the duty and the responsibility of every sovereign state to define its nationality. If a sovereign state does not define its nationality it is tantamount to saying to the world, "We do not know what we are. We have no concept of what our state is and who should belong to it".
The noble Lord, Lord Somers, raised a question in relation to the Dominions and said that they may feel that in some way or other their loyalty to the British Crown as head of the Commonwealth is placed in doubt by the provision that is now under consideration. I cannot for my own part see how there is the slightest danger of that. As I understand it, the countries of the Dominions issue their own passports in exactly the same way as do other sovereign states.
My submission is that the case has been made out overwhelmingly for a declaration to the whole world that the citizens contained in Parts I, II and III of the Bill are British nationals. What can be wrong or contrary to principle in that when the Government themselves in Schedule 7 to the Bill and in Amendment No. 162 acknowledge the fact that they should be called "United Kingdom nationals"? If "United Kingdom nationals" is not contrary to the principle, if "United Kingdom nationals" is not an unrealistic term, then how on earth can the term "British nationals" be contrary to principle in any way at all?
A declaration is necessary. I would indeed wish to see alongside that declaration some statement by Her Majesty's Government with regard to two matters. First, what is the degree of protection that is to be given to people falling within the three categories?—British citizens; citizens of the dependent territories and British overseas citizens. What does it mean? Surely we would be failing in our duty as a Parliament if we were not to seek to spell that out at this present juncture. What is perhaps even more important is the obverse of that consideration. What are the duties owed by those people? Are they classically the duties of British subjects in relation to allegiance to the Crown? If there is a breach of that allegiance does that amount to treason under the Treason Act 1351? Those are immensely important questions.
§ 3.55 p.m.
My Lords, having heard the defence of the noble Lord the Minister I wish to support the amendment. I think that his defence was really only technical in its scope, and I believe that the technicalities which might worry the British immigration officials can most easily be got round by entering in the passport, "British national, a citizen of the British dependent territories"; or "British national, a British overseas citizen". Something like that, which is very simple, could be an entry and an immigration official would have no difficulty in sorting out who the person was.
I should also like to mention as regards the remarks of my noble friend Lord Somers that I think that his worries are misplaced because the categories of people about whom he talked—the citizens of the various Dominions—would, under this Bill, be called Commonwealth citizens (indeed, I think that the countries concerned are listed in Schedule 3) and as such they would not have British passports issued to them at all. I hope that the noble Lord, Lord Geddes, will consider pressing this amendment because I think that it is very important.
§ Lord Drumalbyn
My Lords, I should like to ask my noble friend two questions, and I think that possibly in considering them he may want to consider the matter further before the next stage of the Bill. First, I understood him to say that "British nationality" is a term or concept not known to British law. In that case why are we legislating about British nationality, and not only legislating about it but calling this the "British Nationality Bill"? This Bill as it stands states in the Long Title that it is making fresh provision about nationality and yet, as has been said, "nationality" is not mentioned in the Bill at all.
Secondly—and I think that, if I have correctly interpreted what the noble and learned Lord opposite has just said, I know the answer to this question—if a citizen of a British dependent territory gets into trouble abroad, to whom does he look to get him out of that trouble? Can the noble Lord say to whom he will look? Will he look to the British Foreign Secretary? If that is so, surely that is the binding element—the true binding element being, of course, as the noble Lord opposite said, the Crown. Her Majesty is Queen of the United Kingdom and the various Dominions that were—they are now all independent countries—and other territories overseas. I am taking as the Dominions the newly emergent countries as well. The other territories overseas are alone in not being sovereign territories. Surely there should be an acknowledged link between the United Kingdom and those countries which look to the United Kingdom for the discharge of duties performed by sovereign countries?
I hope that my noble friend will consider this. It is no good saying that this will give rise to misunderstandings. Anything that we do will give rise to misunderstandings. There are plenty of misunderstandings in the world as regards the British Commonwealth as it stands. All the Government can do is to explain the situation and to continue to explain it when misunderstandings arise. Therefore, I do not think it is a good defence to say that this will give rise to misunderstandings. The essential point is that it is quite easy to 275 see that the British Commonwealth consists of the United Kingdom and the other territories overseas, plus the sovereign states. There are two distinct sets of category, and not three.
§ Lord Trefgarne
My Lords, with your Lordships' permission, perhaps I may intervene in order to deal with two of the points made by my noble friend Lord Drumalbyn. First, my noble friend castigated me for saying that the concept of "British national" is not something known to our domestic law. I stand by that. It is most certainly not. This Bill is a British nationality Bill. The word "nationality" does not appear in the amendment and, indeed, it was not the word that I used when I said that the concept of "British national" was not known to our domestic law.
My noble friend also asked about consular assistance—I think that that was the point he had in mind—to CBDTs travelling abroad. As I made clear earlier, we maintain our consular responsibilities for CBDTs and others covered by the Bill and will, of course, continue to exercise them. Again, this piece of legislation is not the appropriate place to provide for a more formalised undertaking, but I am quite confident that we can ensure that foreign Governments fully understand that our responsibilities remain and are not diminished by the Bill.
I should also like to deal with the point made by the noble Lord, Lord Elystan-Morgan. He reminded the House, as my noble friend Lord Geddes has reminded the House on several occasions, that the people of Hong Kong at least understand that an immigration undertaking cannot be made in respect of them. However, as I also said in my opening remarks, it is not only the people of Hong Kong who are covered by the amendment tabled by my noble friend. For example, there are a million or more United Kingdom passport holders who will become British overseas citizens in the country of Malaysia, who would indeed be covered by my noble friend's amendment, and I am not certain that they have the sanguine view about the immigration possibilities to which my noble friend referred with regard to the people of Hong Kong.
§ Lord Segal
My Lords, the right reverend Prelate referred in eloquent terms to the welcome accorded by the citizens of Hong Kong to returning British troops in 1945. I should like to remind the House of a welcome accorded by the people Hong Kong more recently than 1945. I refer to the welcome which Hong Kong gave to tens of thousands of Vietnamese refugees who sought a haven there. On the ground of sheer humanity alone, I think that we should recognise the generous attitude of the people of Hong Kong throughout its past history. For over 40 years they have provided a refuge to refugees from Chinese Communism on the mainland who, at great risk to their lives, have been fortunate enough to enter the free atmosphere of Hong Kong. It would be churlish on our part not to pay tribute to the welcome of the people of Hong Kong to the refugees who have sought a haven of refuge there in the past. I think that we should hesitate—and hesitate a long time—before we do anything to change the existing status of the people of Hong Kong under the 276 British Crown. We should pay our own tribute to the generosity shown by Hong Kong towards the refugees who have sought a haven of refuge there in the past.
§ Viscount Simon
My Lords, I should like to ask the noble Lord, Lord Trefgarne, one brief question. He reaffirmed that there was no definition of a "British national". He appealed to imply that "British nationality" was something that was understood. I do not understand how there can be anything called "British nationality" unless there are people who enjoy it. However, let us suppose that the noble Lord, Lord Geddes, were to come back on Third Reading with the same amendment, except that instead of saying in the last line:shall have the status of a British Nationalit said:shall enjoy British nationality",would that meet the difficulty of the noble Lord, Lord Trefgarne?
§ Lord Trefgarne
My Lords, if I have the leave of your Lordships to speak yet again, the fundamental difficulty with this amendment is that it will create uncertainty and doubt in the minds of those to whom the terms of the amendment would apply and—I have to say this in plain terms—would, I believe, imply some sort of eventual immigration commitment in the minds of some less informed people. That is the principal difficulty which we face.
§ Lord Geddes
My Lords, I am immensely grateful and heartened by the tremendous support for this amendment from all sides of the House this afternoon. I think that it should be clearly understood—I certainly understand it in my own mind—that it is an apolitical amendment and in no way reflects the views of one side of the House or the other.
The other point which I should like to make most strongly is that, although your Lordships may have become increasingly aware of my advancement of the interest of Hong Kong—and I certainly adhere to that—this amendment is not phrased solely for Hong Kong; it is phrased on a much wider front. This should be very clearly borne in mind, albeit that Hong Kong is a very important part of that front.
I shall not attempt to rebut—because we have had a long, and I think very interesting, debate on the subject—the comments made by my noble friend on the Front Bench. I must confess that I am distinctly more than disappointed with them. To use language that is perhaps rather stronger than that to which your Lordships are accustomed, I found them trite in the extreme. Almost without exception every argument that he used could be turned on its head. He has expressed again and again—most recently just now—the view that the amendment would create confusion, would generate confusion and would blur the citizenship category. I contend most strongly that it will do absolutely the opposite. It will clarify precisely the categories of citizenship which are already in the Bill, and make it manifestly clear to all those concerned, both to individuals and to the rest of the world, what is the nationality of those citizens. I intend to press this amendment.
§ 4.8 p.m.
§ On Question, Whether the said amendment (No. 117A) shall be agreed to?
§ Their Lordships divided: Contents, 102; Not-Contents, 105.278
|Addison, V.||Kilmarnock, L.|
|Airedale, L.||Kinloss, Ly.|
|Amherst, E.||Kissin, L.|
|Ampthill, L.||Lauderdale, E.|
|Amulree, L.||Leatherland, L.|
|Ardwick, L.||Llewelyn-Davies of Hastoe, B.|
|Avebury, L.||Longford, E.|
|Aylestone, L.||Loudoun, C.|
|Bacon, B.||McCarthy, L.|
|Banks, L.||McNair, L.|
|Belhaven and Stenton, L.||Mersey, V.|
|Birdwood, L.||Meston, L.|
|Birk, B.||Milverton, L.|
|Bishopston, L.||Molloy, L.|
|Blease, L.||Morris of Grasmere, L.|
|Blyton, L.||Norwich, Bp.|
|Boston of Faversham, L.||Oram, L.|
|Briginshaw, L.||Pargiter, L.|
|Brockway, L.||Peart, L.|
|Brooks of Tremorfa, L.||Pitt of Hampstead, L.|
|Bruce of Donington, L.||Plant, L.|
|Carver, L.||Redcliffe-Maud, L.|
|Chitnis, L.||Reilly, L.|
|Cledwyn of Penrhos, L.||Rhodes, L.|
|Collison, L.||Rochester, Bp.|
|Cooper of Stockton Heath, L.||Rochester, L.|
|Ross of Marnock, L.|
|Cottesloe, L.||Sainsbury, L.|
|Davies of Leek, L.||Saint Brides, L.|
|Davies of Penrhys, L.||St. Davids, V.|
|Elwyn-Jones, L.||Segal, L.|
|Elystan-Morgan, L.||Shinwell, L.|
|Ewart-Biggs, B.||Simon, V.|
|Exeter, Bp.||Soper, L.|
|Fisher of Rednal, B.||Spens, L.|
|Geddes, L. [Teller.]||Stewart of Alvechurch, B.|
|Gladwyn, L.||Stewart of Fulham, L.|
|Grey of Naunton, L.||Stone, L.|
|Hale, L.||Tanlaw, L. [Teller.]|
|Hampton, L.||Taylor of Gryfe, L.|
|Hanworth, V.||Taylor of Mansfield, L.|
|Hayter, L.||Tranmire, L.|
|Houghton of Sowerby, L.||Underhill, L.|
|Hughes, L.||Wallace of Coslany, L.|
|Hunt, L.||Walston, L.|
|Hylton-Foster, B.||Wells-Pestell, L.|
|Ilchester, E.||Whaddon, L.|
|Jacques, L.||White, B.|
|Jenkins of Putney, L.||Wigoder, L.|
|John-Mackie, L.||Wilson of Radcliffe, L.|
|Kilbracken, L.||Wootton of Abinger, B.|
|Adeane, L.||Chelwood, L.|
|Ailesbury, M.||Clitheroe, L.|
|Airey of Abingdon, B.||Clwyd, L.|
|Alexander of Tunis, E.||Cockfield, L.|
|Alport, L.||Colville of Culross, V.|
|Avon, E.||Cork and Orrery, E.|
|Bathurst, E.||Cowley, E.|
|Beloff, L.||Croft, L.|
|Belstead, L.||Cullen of Ashbourne, L.|
|Berkeley, B.||Daventry, V.|
|Bessborough, E.||Davidson, V.|
|Blake, L.||De Freyne, L.|
|Caccia, L.||Denham, L. [Teller.]|
|Campbell of Alloway, L.||Dilhorne, V.|
|Ebbisham, L.||Monk Bretton, L.|
|Eccles, V.||Mowbray and Stourton, L.|
|Ellenborough, L.||Northchurch, B.|
|Elton, L.||Nugent of Guildford, L.|
|Energlyn, L.||Onslow, E.|
|Exeter, M.||Orkney, E.|
|Fairfax of Cameron, L.||Platt of Writtle, B.|
|Ferrers, E.||Portland, D.|
|Foley, L.||Radnor, E.|
|Fraser of Kilmorack, L.||Rawlinson of Ewell, L.|
|Gainford, L.||Redmayne, L.|
|George-Brown, L.||Renton, L.|
|Gore-Booth, L.||Romney, E.|
|Gormanston, V.||St. Aldwyn, E.|
|Greenhill of Harrow, L,||Saint Oswald, L.|
|Gridley, L.||Sandford, L.|
|Grimston of West bury, L.||Sandys, L. [Teller.]|
|Hailsham of St. Marylebone, L.||Savile, L.|
|Halsbury, E.||Sharples, B.|
|Harmar-Nicholls, L.||Skelmersdale, L.|
|Hatherton, L.||Stodart of Leaston, L.|
|Hawke, L.||Strathclyde, L.|
|Hives, L.||Sudeley, L.|
|Inchyra, L.||Swansea, L.|
|Kemsley, V.||Swinton, E.|
|Killearn, L.||Thomas of Swynnerton, L.|
|Lane-Fox, B.||Thorneycroft, L.|
|Lindsey and Abingdon, E||Trefgarne, L.|
|Long, V.||Trumpington, B.|
|Lyell, L.||Tweedsmuir, L.|
|McAlpine of Moffat, L.||Vaizey, L.|
|McFadzean, L.||Vaux of Harrowden, L.|
|Mackay of Clashfern, L.||Vivian, L.|
|Macleod of Borve, B.||Wakefield of Kendal, L.|
|Mancroft, L.||Willoughby de Broke, L.|
|Mansfield, E.||Yarborough, E.|
|Margadale, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Schedule 2 [Provisions for reducing statelessness]:
§ The Deputy Speaker (Lord Aberdare)
My Lords, Amendment No. 118. I have to point out that if this amendment is agreed to I cannot call Amendments Nos. 119 or 120.
§ [Amendment No. 118 not moved.]
§ 4.18 p.m.
§ The Lord Advocate (Lord Mackay of Clashfern) moved Amendments Nos. 119 to 122:
§ Page 56, line 27, leave out ("the Secretary of State is satisfied") and insert ("the following requirements are satisfied in his case, namely").
§ Page 56, line 39, leave out ("the Secretary of State is satisfied that").
§ Page 57, leave out line 6 and insert ("the following requirements are satisfied, namely—").
§ Page 56, line 41, leave out ("the Secretary of State is satisfied") and insert ("the circumstances are such").
§ The noble and learned Lord said: My Lords, if I may I would take Amendments Nos. 119, 120, 121 and 122 together. These are all amendments deleting the requirement of the Secretary of State's satisfaction presently expressed on the face of the Bill. I have already explained the reason for this. I beg to move.
§ On Question, amendments agreed to.279
§ Schedule 3 [Countries whose citizens are Commonwealth citizens]:
§ Lord Skelmersdale moved Amendments Nos. 123 and 124:
§ Page 58, line 22, column 1, before ("Australia") insert ("Antigua and Barbuda").
§ Page 58, line 25, column 1, after ("Barbados") insert ("Belize").
§ The noble Lord said: My Lords, I hope it will be to the convenience of the House if I move Amendments Nos. 123 and 124 together, and speak also to Amendments Nos. 156 and 157. I do not think I need detain your Lordships long over these amendments. They add two countries, Antigua and Barbuda and Belize, to the list of independent Commonwealth countries in Schedule 3. Belize had its independence day, as your Lordships will recollect, on 21st September. It became an independent member of the Commonwealth on that day. Antigua and Barbuda will, under an Order in Council already made under the West. Indies Act 1967, proceed to full independence within the Commonwealth on 1st November. Both countries will therefore be independent members of the Commonwealth by the time this Bill commences. Their place is therefore in Schedule 3, and I move these amendments accordingly. The later amendments will of course remove them from the list of dependent territories in Schedule 6.
§ On Question, amendments agreed to.
§ 4.21 p.m.
Lord Spens moved Amendment No. 125:
Page 58, line 28, column 1, leave out ("Republic of").
The noble Lord said: My Lords, I will, with permission, speak at the same time to Amendment No. 127 as the two amendments are alternatives. At present in Schedule 3 there is a list of countries whose citizens are Commonwealth citizens, but only one country in that list has the words "Republic of" in front of it, and that is the Republic of Cyprus. There are a large number of republics in that list and I have indicated them in Amendment No. 127; I do not see why, if it is necessary to have the words "Republic of" in front of Cyprus, they should not also be put in front of these other countries. The alternative appears in Amendment No. 125, which would delete the words "Republic of", just leaving in the word "Cyprus". I raised this point in Committee on an amendment worded like No. 125 when the Minister replied:
'Republic of Cyprus' is the correct designation of that State as laid down in the 1960 treaties of which Her Majesty's Government is guarantor, and it is the Republic of Cyprus which is recognised as the legitimate government in the island. The reference to the 'Republic of Cyprus' in Schedule 3 is therefore the correct one".—(Official Report, 23/7/81; col. 401.)
The Minister was misled when he made that statement. Schedule 3 gives a geographical list of countries; it does not refer to Governments or people. The substantive provision is Clause 37(1)(b) which reads:
Every person who … under any enactment for the time being in force in any country mentioned in Schedule 3 is a citizen of that country".
The word "country" appears the whole time. The
Minister said that the 1960 treaties were important, so I have checked up on them, and Article I of the Treaty of Guarantee reads:
The Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution".
Article II reads:
Greece, Turkey and the United Kingdom, taking note of the undertakings of the Republic of Cyprus set out in Article I of the present Treaty, recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus".
A geographical country cannot give undertakings, but that is what Articles I and II of the treaties imply. Surely the "Republic of Cyprus "under those articles means more than the geographical area of Cyprus; it must mean the government and people of Cyprus. Thus, if we find in a schedule only one country with the words "Republic of" in front of it, there must be a special reason for that. In my view, that special reason is that "Republic of Cyprus" means the area restricted to the part of Cyprus the people of which give allegiance to the Government of Cyprus, which at the moment means the south of Cyprus, which gives allegiance to the Greek Cypriot Government.
§ The Minister was careful to give an assurance that no discrimination would in practice be made against Turkish Cypriots because of the reference to the Republic of Cyprus in the Bill, and I was glad to accept that assurance. But that assurance can bind only the present Government, whereas I am thinking of a time, 10 to 15 years hence, when I hope Cyprus will have been reunited under one Government. But if it is not, someone construing Schedule 3 could argue that the Turkish Cypriots, because they did not give allegiance to the Government of Cyprus, could not be considered Commonwealth citizens under Schedule 3.
§ I believe there is an inconsistency in the drafting of Schedule 3. I wish to remove that inconsistency either by removing the words "Republic of", as Amendment No. 125 would do, or, if there is a technical reason for keeping the words "Republic of" there in respect of Cyprus, then adding the words "Republic of" in every other case in the schedule where the countries are republics. I beg to move.
§ Lord Drumalbyn
My Lords, this is an extremely difficult problem representing a small detail in a very complex Bill, but it is a very important matter for those concerned. I would not like to feel that the Turks in Cyprus were left out, or felt they were left out, of the Bill. It is not enough to say that we recognise the Republic of Cyprus as having jurisdiction over the whole country because of a past treaty. The fact of the matter is that de facto there are two régimes in Cyprus, and surely we would like to see both régimes covered by this legislation.
I do not know what is the juridical position, but I should have thought it very important. This is a matter of tact, and it affects all the attempts that are being made to bring together the two sides of Cyprus. It seems to me that this is the one case that we should not insert the words "Republic of". To insert such words in relation to all the other republics would be sensible, but this is the one case in which they should not be inserted, so as to avoid giving offence. This would be a sensible thing to do. The 281 Government might feel that they are constrained by their recognition of the republic as covering the whole country, as it did originally at the time of the treaty, but they cannot ignore the fact that there are two regimes in Cyprus.
§ Lord Skelmersdale
My Lords, the House will be grateful to the noble Lord, Lord Spens, for explaining to us his Amendment No. 125, and for speaking at the same time to Amendment No. 127. I am afraid that there has been much misapprehension in regard to page 58, line 28, column 1, over the fact that the words "Republic of" appear there at all. I hope to be able to show that there is a very simple reason for this.
As the noble Lord has explained, the original amendment seeks to alter the reference to Cyprus in Schedule 3 to the Bill, which lists those countries whose citizens are Commonwealth citizens. It would mean that the schedule would no longer refer to the "Republic of Cyprus", but merely to "Cyprus". To refer in Schedule 3 simply to "Cyprus" could cause confusion about the status under the Bill of people from the soveriegn base areas. Those areas, though within the island of Cyprus, are sovereign British territory outside the Republic of Cyprus and are in the list of dependent territories in Schedule 6 to the Bill. Therefore in this case we favour using the term "Republic of Cyprus", which, after all, is the correct designation of that state as laid down in the 1960 treaties, of which Her Majesty's Government are guarantors. It was those treaties to which the noble Lord, Lord Spens, referred. Incidentally, in passing, I should point out that the noble Lord mentioned Article 2, which was guaranteed by Greece, Turkey and the United Kingdom. If one was to follow his line of thought, the reference would have been to Greece, the Republic of Turkey and the United Kingdom.
The Republic of Cyprus is of course that which is recognised as the legitimate Government in the island, of the whole island. I know that the noble Lord is concerned about the position under the schedule of Turkish Cypriots, but I can assure your Lordships that in practice no discrimination would be made against Turkish Cypriots because of the reference in the Bill to the Republic of Cyprus. Turkish Cypriots are exactly the same as Greek Cypriots; all are treated as Commonwealth citizens, and on the same basis.
I should like to make a reference to Amendment No. 127, over and above what I have just said. It has long been our practice in legislative instruments to refer to each country by its usual short name. There is rarely any need to add words of description, unless they are needed for purposes of distinction, as they are in the case of the Republic of Cyprus. As I have said, simply to refer to "Cyprus" in this context could cause confusion about the status under the Bill of people from the sovereign base areas. I hope that the noble Lord has understood this somewhat convoluted exposition of the situation and will be prepared to withdraw the amendment.
My Lords, I have understood, but I do not agree with, the explanations and I am very surprised at the noble Lord the Minister coming out 282 with the excuse about confusion with the people living in the sovereign base areas. In his reply to me during the Committee stage the noble Lord, Lord Trefgarne, made this point only an addition to his reason for wanting to keep the words, "Republic of". He said, as reported at column 401 of the Official Report:Furthermore, to refer in Schedule 3 simply to 'Cyprus' could cause confusion about the status under this Bill of people from the sovereign base areas".But, my Lords, why? Their status is perfectly clearly indicated in Schedule 6, on page 61. That is the schedule that refers to British dependent territories, and includes:The Sovereign Base Areas of Akrotiri and Dhekelia (that is to say the areas mentioned in section 2(1) of the Cyprus Act 1960)".Why therefore should there be any confusion that they would be included as Commonwealth citizens under Schedule 3? If there had not been any reference to Akrotiri and Dhekelia, then there might be a case for the argument about confusion, but even if there is confusion, could it not be better resolved by adding after the reference to Cyprus in Schedule 3 the words,except for the sovereign base areas of Akrotiri and DhekeliaThat would make the position quite clear and would remove this quite extraordinary lone reference to a republic which at the moment appears in Schedule 3.
I have again received assurances that the Turkish Cypriots are to be covered, and I am quite certain that they will be. But will they be covered in 10 years' time when a court of law or an arbitrator looks at the words in the schedule and sees "Republic of Cyprus", the lone reference in the schedule to a republic? Such a court or arbitrator must consider that there was a special reason for inserting the words, and I believe that that could cause quite serious difficulties in the future. However, I shall not divide the House, because I am quite certain that I would not receive the kind of response that there was to the amendment in the last Division, but I would ask the noble Lord the Minister to think again about leaving in the schedule this lone reference to a republic. I ask him, please take them out. What I propose would be simple and to my mind would cause no confusion at all. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 126 and 127 not moved.]
§ 4.39 p.m.
§ Baroness Birk moved Amendment No. 128:
Page 30, line 16, at end insert—
(c) he is a British Overseas citizen or a British Protected Person or a British subject under this Act who before commencement had been given indefinite leave to enter or remain in the United Kingdom at any time.").
§ The noble Baroness said: My Lords, an amendment that was moved in Committee by the noble Lord, Lord Avebury, and which I supported from this Bench would have given British citizenship immediately on commencement to all those persons already British nationals who had the right to remain permanently in the United Kingdom, anyway. That would have 283 avoided among other things the absurdity of having United Kingdom and Colony citizens becoming British overseas citizens when they were already permanent United Kingdom citizens, and the unnecessary work that the Home Office would have in processing their registrations would be avoided.
§ However, the present amendment makes an approach that is different from the amendment moved in Committee, since the noble Lord, Lord Belstead, said he found that amendment wholly unacceptable. There is a considerable difference in both the approach and part of the content of the present amendment, because we are taking up the issue on what is now Clause 39, which says who shall have the right of abode in the United Kingdom. Clause 39 gives the right of abode to two categories of person: British citizens under the Bill and certain Commonwealth citizens who already hold the right under the Immigration Act 1971. The Commonwealth citizens concerned will not be British citizens—they will probably be Canadians or Australians, or from other white Commonwealth countries—but most of the British Nationality Act 1981 is to apply as if they were British citizens.
§ Thus the Bill provides for treating people who hold other countries' passports but whose mothers were born in the United Kingdom as if they were British citizens, and most of these people are permanently resident in other Commonwealth countries. At the same time British passport holders who have been admitted for permanent settlement in the United Kingdom and most of whom are in fact permanently living here are not to have the right of abode in the United Kingdom as the Bill now stands. It really is an absurd anomaly that the Bill should treat citizens of other countries as if they were British, even if they are living in those countries from which they come, while at the same time treating some resident British people as non-citizens. It really is bureaucratic nonsense as well as being demonstrably unfair.
In Committee, the noble Lord, Lord Belstead, the Minister answering on this amendment, objected to the proposal that this British group should become British citizens at commencement on the grounds that some of them who had only just arrived here could not be said to have had time to develop any real link with this country, and that they might go away and have children overseas—and I quote—
who would thus be able to come and go as they pleased into and out of this country". [Official Report, 22/7/81, col. 304),
so that the effect of the amendment would have been to increase the immigration commitment of this country. I find this argument very odd on all counts, especially as other Home Office Ministers have strenuously denied that this Bill has anything to do with immigration. Yet the Government argument showed quite clearly that their concern then was not with citizenship properly speaking but with limiting the number of future entrants to this country of non-European descent.
I find the argument absurd even if one concedes the immigration assumption underlying it. If the people concerned are to be entitled to register here anyway, what then is to stop them going overseas and having children who could, as the Minister put it,
come and go as they pleased into and out of this country"?
Refusing them the advantage, and the Home Office civil servants the relief, of giving them citizenship straightaway would do nothing whatever to make it either more or less likely that they would go and have children abroad.
§ However, since the Government were opposed to that approach, in this amendment we propose a solution which would not, I submit, be open to the objection which the Minister advanced. If all the people concerned were to have, like Commonwealth patrials, the right of abode under Clause 39, their own position would be secure and assured immediately. Their right of abode, however, if this amendment is carried, would not be transmissible to their children; and this, I feel, was the main stumbling block that the noble Lord, Lord Belstead, felt he came up against. Their children's future would depend upon their applying for registration, as already provided by the Government in the Bill as it stands.
§ The Government could also feel completely assured that members of this group would apply for registration only if intending to maintain a permanent connection with the United Kingdom, and many of them, particularly if they were elderly, would probably not even bother to go through the registration procedure at all. But the men and women themselves—and this, I think, is really the most important point of all—would be more assured than they are of a secure position in this country. Moreover, it would be possible to negotiate for them a status conferring immediate freedom of movement rights in the European Community, as they would be British nationals with a right of abode under the relevant clause as it had now been amended. This again would benefit everyone. These people would have much more freedom of choice open to them; and since many of them happen to be highly efficient businessmen and entrepreneurs, their activities would certainly assist in bringing back to this country material benefits of the kind which were extolled in all parts of the House when, under Clause 3, we were discussing British businessmen in the EEC.
§ I would certainly have preferred the original amendment, and it would certainly have saved a lot of Government expenditure and official time. But I believe that the present amendment offers at least some real advantages that the Government could consider favourably, and also carefully disposes of the main areas of Government disagreement. I beg to move.
§ Lord Avebury
My Lords, what Section 39(2) of this Bill does is to substitute some new words for Section 2 of the Immigration Act 1971, so that persons who already had the right of abode immediately before commencement would continue to enjoy it afterwards. The amendment now before your Lordships seeks to ensure that any of the persons mentioned in this amendment who have been granted indefinite leave to enter or remain in the United Kingdom will at any future date be re-admitted without conditions. The only difference between the two amendments that we have before us—if we may take Amendment 129 with this one—is that Amendment 128 contains the words "before commencement" and Amendment No. 129, although the words are arranged in a slightly different order, means the same without those words; so that a person who is granted indefinite leave to enter 285 or remain in the United Kingdom after commencement would also have the right of abode under Amendment 129 but not under Amendment 128.
As the noble Baroness has just said, of course, these amendments now in front of us would have been unnecessary if the amendment we considered at Committee stage—Amendment No. 114ZB—had been acceptable; if the persons mentioned here, the British protected persons and British subjects without citizenship who were resident in the United Kingdom, had been admitted to British citizenship at commencement as we should have liked. We still think that that solution was a better one than the one we are proposing here. It was less cumbersome; and it would have been better if all the citizens of the United Kingdom and the Colonies from East Africa, for example, were assimilated into the new citizenship from day one instead of, as I explained on that occasion, suddenly being demoted from citizenship of the United Kingdom and Colonies to British overseas citizenship and not re-acquiring full British citizenship until they had been resident in the United Kingdom for five years. All right, we lost that battle and we had to come back to trying to ensure that people in these categories have the rights which they would have enjoyed if they had been British citizens.
The present Immigration Rules provide in paragraph 5 thatcitizens of the United Kingdom and Colonies who hold United Kingdom passports, wherever issued, who can satisfy the immigration officer that they have previously been admitted to settlement in the United Kingdom should be freely re-admitted. 'United Kingdom passport' includes a passport issued by the Lieutenant Governor of the Isle of Man or one of the Channel Islands but not one issued by or on behalf of the Government of a dependent territory".In practice, British protected persons and British subjects without citizenship have always been treated in the same way as citizens of the United Kingdom and Colonies.
Now we have problems, because many East African Asians have passports which are endorsed, "The holder has the right of re-admission to the United Kingdom", or, alternatively, "The holder is subject to control under the Immigration Act 1971", but nevertheless they can show that they have been granted indefinite leave, most commonly either when they have been admitted as the head of a household on a special voucher or as a dependant of somebody who had been the head of a household. Some of them may also have spent a substantial period, or series of periods, living in the United Kingdom, but may nevertheless not be able to satisfy the condition of being five years ordinarily resident, which would have resulted in their becoming British citizens under the Bill. There may be others, also, who had spent a fairly brief period living here after having been granted indefinite leave to enter or remain, then returning to East Africa, where they may have continued to work on temporary permits or may have been engaged on fixed-term contracts.
There are many people in this situation who will be outside the United Kingdom on the date of the commencement of the Act. No doubt the noble Lord is aware of the existence of such persons who have entered and who subsequently have returned 286 overseas for temporary periods because they work there. I endorse the noble Baroness's point that, just as we have been trying to encourage entrepreneurs and experts of all kinds who go abroad, who bring back foreign exchange to this country and who enhance the prestige of Britain abroad, so we should not discourage those people originally from overseas who have created for themselves links with this country and who have subsequently gone back to work abroad in the same way as those we were discussing on Clause 3. But we are worried about those people because, unless they have proper assurances, they may think that they will lose their entitlement to readmission to the United Kingdom.
This has been the subject of correspondence between officials in the Home Office and the general secretary of the Joint Council for the Welfare of Immigrants, which resulted in assurances of a limited character being given. I want to quote from a letter written by the senior officials in the Home Office to the general secretary and to get the Minister's confirmation, in public at any rate, that this undertaking will be adhered to. I quote, from this letter:You also referred to British Protected Persons and British subjects without citizenship in your letter of 11th February.That would be February 1981. The letter goes on:I can confirm that what I said in my letter of 8th January about United Kingdom passport holders previously settled here who become British overseas citizens applies also to those United Kingdom passport holders previously settled here who are British Protected Persons and British subjects without citizenship; they too will contiue to be freely re-admitted if and when the Nationality Bill is through. I am not sure, however, that Ministers would wish to make a specific reference to British Protected Persons and British subjects without citizenship in paragraph 5 of the Rules".If I may, I should like to draw attention to some short-comings in those undertakings which need to be remedied by an amendment along the lines that we are now considering.
First, there is a reference to the Government's commitment to those lawfully settled in the United Kingdom before the new legislation comes into effect. That might seem to qualify the pledge to all those persons having the right of admission, for many of those whom we are concerned with are outside the United Kingdom and would not be settled as at the date of commencement. Also, the letter declines to alter the present Rules, which refer only to citizens of the United Kingdom and Colonies and not to British Protected Persons and British subjects without citizenship. The wording of the present Rules:previously been admitted for settlement",has two defects. First, it does not refer to those accepted for settlement after admission for a limited period; although one cannot imagine that the Home Office would argue that they are excluded. But that is a deficiency of wording.
Then, secondly, because of the references to settlement, there might be some arguments later about whether those given indefinite leave have established ordinary redidence and that some who were only briefly resident here were not settled within the meaning of the Act and do not qualify for readmission. I am sure that the noble Lord, Lord Belstead, is aware of the extensive correspondence about the rights of returning residents which has taken place between 287 Members of both Houses and the office of the Minister of State, Mr. Timothy Raison, and he is aware that there is widespread anxiety and doubt about the nature of the requirements that need to be satisfied before a person may have the right to come back to this country after a short period abroad. The passing of an amendment along the lines of that proposed by the noble Baroness, Lady Birk, would do an immense amount of good in reassuring those people, and I hope that it will be acceptable to the Government.
§ 4.55 p.m.
§ Lord Belstead
My Lords, those who would acquire the right of abode under the provisions of this amendment are varied. The largest element would be citizens of the United Kingdom and Colonies and British Protected Persons who would be admitted on special vouchers, and their dependents who are citizens of the United Kingdom and Colonies or British Protected Persons. But there are others who would benefit also. There are the people who have come here from the dependencies and are settled here under the provisions of the Immigration Rules. Their numbers would be relatively small.
I have to say that I think there are two major drawbacks to this amendment. Although the noble Baroness, Lady Birk, and the noble Lord, Lord Avebury have explained in great detail the reasons which prompted the tabling of the amendment, I have to address myself to the effects of the amendment. The first difficult effect is that, by granting the right of abode to people who are not British citizens and who have not held the right of abode hitherto, the amendment would continue and, indeed, would exacerbate, the present confusion which exists between citizenship and the right of abode: the first priority of the Government in bringing in this Bill has been to try to do away with the difficulty of the constant arguments as to whether, if you have the right of abode, you should have citizenship and, if you have citizenship, you should have the right of abode. We have said again and again that one of the advantages of the Bill is that citizenship and the right of abode would be tied together so that there should be certainty in people's minds so far as that is concerned. With respect, I think that this amendment would detract considerably from that.
Secondly, the amendment would confer the right of abode on people who may have just arrived in this country, have been admitted for settlement and cannot be said to have had time to forge any close links with this country. Indeed, these people—and we live in a free world and everybody has the right in the Western world to do what he wants, by and large—may say that they want to come here for a short time and then to go away and never come back. It does not seem right that, simply because people happen to be here for a short period at the appropriate time, they should acquire the right of abode in this country, a right which they would hold for the rest of their lives even if they were here only for a very short time.
Having made those criticisms, I want to make it clear that the Government have tried to go a considerable distance to meet the spirit behind the amendments. In Clause 4 an avenue is provided to British citizenship for those whom this amendment seeks to 288 benefit; but Clause 4 limits the right to British citizenship to those in these groups, to people who have completed five years' residence in the United Kingdom. The difference between the amendment and the Bill is that the amendment says that British overseas citizens, British Protected Persons and British subjects who are here at the commencement shall have the right of abode automatically, whereas we are providing in Clause 4 an entitlement to these people to register as British citizens after five years of residence. We have provided this avenue to citizenship because we think that, while those concerned should be able to secure our citizenship and with it the right of abode, they should be able to do it only when they have developed some real links with this country through their residence here.
I should like to refer to two other points. The noble Lord, Lord Avebury, put to me a whole series of points arising from correspondence which the noble Lord has had with the Home Office. If I could look at the correspondence, I should be only too ready either to confirm or to deny the points which noble Lord put to me, but my understanding, from what I could follow of the noble Lord's words, is that I am sure I can confirm all that has been said in writing to the noble Lord. However, that is very much an off-the-cuff reply.
Secondly, I would say that the noble Baroness put the point—and it is a perfectly reasonable one—in essence, "why cannot people, when they come here and are settled here, even for only a short time, become British citizens instead of having to go through the business of registration? I must remind your Lordships that a great deal has been said in both Houses of Parliament about the uncertainty, the difficult, of being able to establish one's status under the Bill. I do not accept that. I do not accept that, because I find here that we are providing a formal registration process which I think is very desirable because it does away with doubt and uncertainty. The people we are talking about here would suffer inconvenience and delay in establishing their claim for British citizenship if there were no formal registration system.
There is a lot to be said for registration. I believe that it provides certainty and it provides a formal status which people will welcome. I do not believe there is a great deal between the two sides of the House on this particular amendment; but what there is is fundamental. I am saying that we have provided under Clause 4 an avenue for citizenship which I believe is fair, and I ask your Lordships, having heard the arguments, not to agree with the amendment.
§ Baroness Birk
My Lords, the Minister in replying said that the amendment would exacerbate the confusion between citizenship and the right of abode. It would seem to me that it would be almost impossible to exacerbate any more confusion in this Bill than there is already built into it anyhow. Most of the amendments that have been brought forward by the Government—and we are very grateful for many of them because they improve the Bill—have made the Bill extremely lopsided. I will not take up time dealing with that now, but I am sure that the Minister knows what I mean. The whole Bill has now gone even more out of balance.
289 On the point that the Minister made about exacerbating confusion between citizenship and right of abode, the right of abode to people who have British passports who feel they are living here permanently is something absolutely basic. It is the same as saying if you have a roof over your head, whether you can buy the house or rent it, whatever you do about it, the first basic aspect is that you have a roof over your head. This is the point about the right of abode. I cannot get round the point, and I cannot even let the Minister persuade me, that there is not something absolutely wrong in a situation where we have Canadians and Australians who have citizenship rights in their own country and this country who have an immediate right of abode—let me hasten to say that I do not want it taken away from them—whereas British Asians from East Africa, the people we are talking about, who number about 20,000, will not have this. Regarding the argument that it is better to register, for some people it may be; but there are numbers of people, as I have pointed out, particularly older ones, who will not want, or who feel that there is no need, to go through the registration process.
What will happen, is happening and will be exacerbated if the Government do not accept this amendment is that these people will find it very difficult to see that this is anything but a very discriminatory Bill. If the Government really want to show by action as well as the fine words that are put forward that this Bill is not based on racial discrimination, that it is fair, and also if the Government wish to assuage the enormous, heartrending anxiety that has been built up around the Bill, they would certainly accept this amendment as a measure of their good faith. If, as the Minister has made quite clear, the Government are not prepared to do so, then I must press the matter to a Division.
§ 5.5 p.m.
§ On Question, Whether the said Amendment (No. 128) shall be agreed to?
§ Their Lordships divided: Contents, 77; Not-Contents, 114.290
|DIVISION NO. 2|
|Airedale, L.||Elwyn-Jones, L.|
|Amherst, E.||Elystan-Morgan, L.|
|Avebury, L.||Ewart-Biggs, B.|
|Aylestone, L.||Exeter, Bp.|
|Bacon, B.||Fisher of Rednal, B.|
|Balogh, L.||Gaitskell, B.|
|Banks, L.||Gladwyn, L.|
|Beswick, L.||Hale, L.|
|Birk, B.||Hampton, L.|
|Bishopston, L.||Hanworth, V.|
|Blease, L.||Houghton of Sowerby, L.|
|Blyton, L.||Hughes, L.|
|Boston of Faversham, L.||Hunt, L.|
|Brockway, L.||Jacques, L.|
|Brooks of Tremorfa, L.||Jeger, B.|
|Bruce of Donington, L.||Jenkins of Putney, L.|
|Chitnis, L.||John-Mackie, L.|
|Cledwyn of Penrhos, L.||Kilbracken, L.|
|Collison, L.||Kilmarnock, L.|
|Cooper of Stockton Heath, L.||Leatherland, L.|
|Llewelyn-Davies of Hastoe, B.—[Teller.]|
|Davies of Leek, L.|
|Davies of Penrhys, L.||Lloyd of Kilgerran, L.|
|Longford, E.||Stone, L.|
|Lovell-Davis, L.||Strabolgi, L.|
|McNair, L.||Tanlaw, L.|
|Morris of Grasmere, L.||Taylor of Mansfield, L.|
|Ogmore, L.||Underhill, L.|
|Oram, L.||Wallace of Coslany, L.—[Teller.]|
|Pitt of Hampstead, L.||Walston, L.|
|Rhodes, L.||Wells-Pestell, L.|
|Rochester, L.||Whaddon, L.|
|Ross of Marnock, L.||White, B.|
|Seear, B.||Wigoder, L.|
|Sefton of Garston, L.||Wilson of Radcliffe, L.|
|Shinwell, L.||Winstanley, L.|
|Simon, V.||Winterbottom, L.|
|Stewart of Alvechurch, B.||Wootton of Abinger, B.|
|Stewart of Fulham, L.||Worcester, Bp.|
|Airey of Abingdon, B.||Lyell, L.|
|Alexander of Tunis, E.||McAlpine of Moffat, L.|
|Alport, L.||McFadzean, L.|
|Ampthill, L.||Mackay of Clashfern, L.|
|Auckland, L.||Macleod of Borve, B.|
|Avon, E.||Mancroft, L.|
|Bathurst, E.||Mansfield, E.|
|Belstead, L.||Margadale, L.|
|Blake, L.||Marley, L.|
|Caccia, L.||Mersey, V.|
|Campbell of Alloway, L.||Milverton, L.|
|Campbell of Croy, L.||Monk Bretton, L.|
|Chelwood, L.||Newall, L.|
|Clitheroe, L.||Norfolk, D.|
|Cockfield, L.||Northchurch, B.|
|Coleraine, L.||Nugent of Guildford, L.|
|Colville of Culross, V.||Onslow, E.|
|Cork and Orrery, E.||Orkney, E.|
|Cottesloe, L.||Orr-Ewing, L.|
|Craigmyle, L.||Platt of Writtle, B.|
|Croft, L.||Plummer of St. Marylebone, L.|
|Cullen of Ashbourne, L.|
|Daventry, V.||Portland, D.|
|Davidson, V.||Radnor, E.|
|De Freyne, L.||Rawlinson of Ewell, L.|
|Denham, L.—[Teller.]||Redmayne, L.|
|Dilhorne, V.||Renton, L.|
|Drumalbyn, L.||Rochdale, V.|
|Eccles, V.||Romney, E.|
|Ellenborough, L.||St. Aldwyn, E.|
|Elton, L.||St. Davids, V.|
|Exeter, M.||Sandys, L.—[Teller.]|
|Fairfax of Cameron, L.||Savile, L.|
|Ferrers, E.||Selkirk, E.|
|Ferrier, L.||Sempill, Ly.|
|Foley, L.||Sharples, B.|
|Fraser of Kilmorack, L.||Skelmersdale, L.|
|Gainford, L.||Spens, L.|
|Geddes, L.||Stamp, L.|
|Gormanston, V.||Stodart of Leaston, L.|
|Gridley, L.||Strathclyde, L.|
|Hailsham of St. Marylebone, L.||Strathcona and Mount Royal, L.|
|Halsbury, E.||Sudeley, L.|
|Hatherton, L.||Swinfen, L.|
|Hawke, L.||Swinton, E.|
|Hives, L.||Teviot, L.|
|Hylton-Foster, B.||Thomas of Swynnerton, L.|
|Ilchester, E.||Thorneycroft, L.|
|Inchyra, L.||Trefgarne, L.|
|Kemslay, V.||Trumpington, B.|
|Keyes, L.||Tweedsmuir, L.|
|Kings-Norton, L.||Vaizey, L.|
|Kinloss, Ly.||Vaux of Harrowden, L.|
|Lane-Fox, B.||Vivian, L.|
|Lauderdale, E.||Wakefield of Kendal, L.|
|Lindsey and Abingdon, E.||Willoughby de Broke, L.|
|Long, V.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendment No. 129 not moved.]291
§ 5.13 p.m.
§ Lord Elystan-Morgan moved Amendment No. 129A:
Page 32, line 15, at end insert—
("(9) This section shall be read in conjunction with Articles 48 and 52 of the Treaty of Rome.").
§ The noble Lord said: My Lords, this amendment is not moved from any enthusiasm that I might have for the Rome Treaty. I was never a believer in that; but the amendment is born of the most laudable aim, and that is to seek humble information. As the House well appreciates, the Bill is in many respects what could be called "a stockade provision", as the noble Lord, Lord Belstead, said a few minutes ago. The heart, core and kernel of the Bill is those conditions which define that select group of people who are entitled to come into the United Kingdom and to have a right of abode here. Nevertheless, I think it is right to point out that the British "stockade" has been breached in many, many places where the public have little knowledge of the provisions which allow such breaches to take place. That is why the amendment refers to two provisions in the Rome Treaty, Articles 48 and 52.
As the House will be aware, Article 48 is that part of the Rome Treaty which deals specifically with the movement of labour. Its provisions are fairly short and perhaps I might be allowed to quote from them:
1. The free movement of labour shall be secured within the Community not later than the end of the transitional period.
2. Such freedom of movement shall entail the abolition of any discrimination based upon nationality between workers of the Member States as regards employment, remuneration and other labour conditions.
3. It shall entail the right, subject to limitations justified on the grounds of public policy … public security and public health,
and I should like to draw particular attention to provision (d)—
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be the subject of implementing regulations to be drawn up by the Commission".
§ Those regulations were drawn up and took effect from 29th June 1970. I shall not quote in detail from them, but their effect—and I am indebted to the noble Lord, Lord Campbell of Alloway, in respect of these regulations and to certain decisions of the European Court which explain them—is to allow three classes of persons to settle in the United Kingdom after their working period is over. The first class concerns the person over the age of 65 who has worked in the United Kingdom for 12 months. The second is the worker who has resided in the territory of a state for more than two years but who has ceased to work. He need not be over 65 but has ceased to work owing to becoming incapacitated. The third is a worker who, after three years of continuous employment and residence in the territory of one state, works as an employed person in the territory of another state while retaining his residence in the territory of the first state. Those are the provisions of Article 48, as defined by the regulations of 1970.
§ Article 52 is the article which deals with the right of settlement. In my submission, it is clear that the door 292 is opened by these provisions which have become part of our law under Section 2 of the Act of 1972. From these provisions it is possible to create a vast constituency of people entitled under those conditions to come into the United Kingdom, to work here, to live here permanently and to settle in terms of business, and so on.
§ The question I would ask of Her Majesty's Government is this: what calculations have been made of the likely numbers concerned? Surely a survey must have been made by Her Majesty's Government and it is only right that the House and the community at large should be apprised of those calculations. What are the likely numbers under Article 48, particularly 48.3 (d), the right of settlement after retirement? Also, what are the calculations made under Article 52?
§ There is one other matter and I trust, with the indulgence of the House, that I can raise this in the same context. The House may remember that last Wednesday, while dealing with the question of the definition of "nationality" in the EEC Treaty, I asked three specific questions of the Ministers opposite and, of course, at that stage they wanted time to consider matters which can give rise to considerable complexity. The questions were: Whether Her Majesty's Government had at last arrived upon a definition of "nationality" for EEC purposes; what negotiations have there been with the EEC countries and what was the result of those negotiations; and was that definition the same as in the Bill and, if different, which of the two definitions would obtain in relation to our nationals in other EEC countries and the nationals of other EEC countries in the United Kingdom? I should be most grateful, as I am sure the House would be, if those questions could now be answered. My Lords, I beg to move.
§ Lord Campbell of Alloway
My Lords, may I thank the noble Lord, Lord Elystan-Morgan, for his most courteous and generous acknowledgment? If this amendment is put forward as a vehicle for discussion, as I understand that it is, it serves a valuable purpose. But I respectfully suggest that in its drafting, as it is before your Lordships, it could not really serve a useful purpose, because the shoe pinches on Article 48.3 (d) which gives the worker who has come here by virtue of the implementing regulation, to which reference has been made, a right to remain here, in certain circumstances, after his employment has ceased.
This is a very complicated situation which involves tax considerations, social security rights, pensions and travel facilities which are cheap and subsidised, and none of which is incorporated in the contract of employment itself. So the situation is that the Court of Justice, in a series of decisions—I would not dream of mentioning their names, but they exist; there are certainly five relevant decisions—will address its recommendations on interpretation to member states.
Why, in my submission, it would be wrong to seek to support the amendment as it is drafted—I say that with great respect to those who propose it—is this. First, it would set an entirely novel and wrong precedent as regards the drafting of our municipal statute law. Secondly, it is such a complicated subject that one cannot do justice to the concept by merely referring to an article of a treaty, without also referring to the implementing secondary legislation and to the reasoning 293 of the body of interpretative case law. Thirdly—if one needs a third reason—in this sphere community law has, in any event, supra-national effect and direct effect.
Therefore, if I may respectfully put it in this way, would your Lordships not think it better to leave it to the Court of Justice of the European Communities to deal with the matter, rather than seek to pre-empt the situation by building some concept into our own municipal statutes by cross-reference? It is for those reasons that, if the amendment were pressed, I should most respectfully invite your Lordships to oppose it.
§ 5.24 p.m.
§ Lord Belstead
My Lords, the noble Lord, Lord Elystan-Morgan, has explained that the purpose of this amendment is to probe the effect of Articles 48 and 52 of the Treaty of Accession, when taken in conjunction with this Bill. May I first say a word about Article 48? That is the article which, as the noble Lord explained, provides for freedom of movement for workers to be secured within the Community; and, indeed, having been handed the actual text by my noble friend Lord Campbell, the noble Lord, Lord Elystan-Morgan, read out the different sub-articles.
But if I may go back to the point about comparing Article 48 with the effects of the Bill, freedom of movement is not the same as the right of abode. First, the article mentions only freedom of movement for workers. There may also be limitations which are justified on grounds of public policy, public security or public health; indeed, employment in the public sector is excluded from the scope. It is, therefore, easy to see that Article 48 deals with a quite different situation from the section of our immigration law which prescribes who is to have the right of abode. It would be misleading to try to link the two—and, as I understood it, that is really what my noble friend Lord Campbell was saying at the very end of his remarks—for the contexts are wholly different. The same goes even more strongly for the provisions of Article 52, which provides for the progressive abolition of restrictions on the freedom of establishment, subject to the same limitations on grounds of public policy, public security and public health.
I have to go on to say that the noble Lord, Lord Elystan-Morgan, asked me, none the less, what kind of numbers are concerned, particularly with reference to Article 48. As he said, there could be a considerable constituency of people who will not only gain access to this country but will be living here. The noble Lord felt that Parliament should be concerned with this, but I am afraid that I simply do not have those figures with me. If I can find anything which I think would be to the advantage of the noble Lord, I assure him that I will write.
However, may I just add a word about the treatment of the beneficiaries of these articles, and about how it compares with the status under European Community law of future British overseas citizens, British subjects and British protected persons. If I may do that, it will give me an opportunity to reply to the noble Lord, Lord Elystan-Morgan, on the three points which he raised during our proceedings last Wednesday about our definition of "United Kingdom national" for European Community purposes.
294 The noble Lord was concerned about whether any final decision has been reached on that definition and on how it would tie in with the terms of this Bill. The present definition of "United Kingdom national" for European Community purposes is not included in our present nationality law. It takes the form of a unilateral declaration made at the time of our accession to the Community and does not form part of our statute law. The question of whether this declaration takes precedence over any definition included in this Bill does not, therefore, arise. The two issues are entirely separate.
Nevertheless, there will have to be some adjustment of the existing definition in the light of this Bill—and I am sure that this is very much in the noble Lord's mind—because the present definition refers to citizens of the United Kingdom and Colonies with the right of abode—a term which will, of course, disappear when Parliament passes this Bill on to the statute book. Clearly, it will not be possible to finalise this new definition until Parliament has approved the new citizenship scheme. However, I can say that we consider that this re-definition should cover categories who are at present covered, but in their new titles—in other words, British citizenship; indeed, citizens of the British dependent territories who have links with Gibraltar, which has nothing to do with what we call the Gibraltar clause, and British subjects under the new Act with the right of abode.
The noble Lord asked me last week why consultation is necessary, if the re-definition is to cover the same people as are covered at present. The existing declaration was the subject of consultations with other members of the Community and the declaration really amounted, therefore, to an agreed interpretative statement as to how the term "national" in Community treaties and Community Acts will be construed with regard to the United Kingdom. Clearly it is appropriate before changing this declaration, even if only its nomenclature, to explain to other members of the Community who are affected by it what we propose to do and the background to the changes concerned—in other words, the background to the Bill.
The answer, then, to the question, how the beneficiaries of Articles 48 and 52 are treated as compared with British overseas citizens, British subjects and British protected persons depends upon the circumstances of individual cases. It is possible for a British subject to have the right of abode. This would be the case certainly if he were born to a mother who was born here, otherwise British overseas citizens, British subjects and British protected persons will not have the right of abode, will be subject to our immigration control and will not be United Kingdom nationals for European Community purposes.
It follows therefore that they are less favourably treated for the purposes of Articles 48 and 52 than nationals of other member states of the European Community. This is an inevitable consequence of our treaty commitments. But in other respects those citizens will be more favourably treated because under Clause 4 they will have an entitlement to be registered as British citizens, with the right of abode, after five years here. Therefore, much depends upon the particular context in which one happens to be talking.
295 Before I sit down may I say that so far as I am aware there has been no actual survey of likely future numbers under Articles 48 and 52. However, in 1980 there were 2,850 European Community nationals accepted for settlement on arrival or on removal of the time limit. The 1979 number was 3,492 and the 1978 number was 3,662. Those were the numbers accepted for settlement on arrival.
I have given to the noble Lord all the information that I can which he asked for a week ago and which he has asked for today. Should there be any matter which I have skated over but which I ought to have tried to reply to, if the noble Lord asks me and if the House will allow me to speak again I shall do my best to reply.
§ Lord Elystan-Morgan
My Lords, I am very grateful to the noble Lord, Lord Belstead, for the very full way in which he has answered the questions which I posed to him and for the characteristic courtesy with which he dealt with my requests. Concerning his contention that Article 48 deals basically with the movement o[...] labour, I accept it. However, the part of the Article to which I drew particular attention was 48.3.(d); namely, the abode provision. The regulations made thereunder make the position amply clear for they begin:The following shall have the right to remain permanently in the territory of a member state …".There are many matters raised in the reply and the elucidation given by the Minister which it would not be appropriate to raise at this stage. However, I trust that ere long an opportunity will arise when they can be fully ventilated. For the reason which I have already given, I do not wish to press this amendment to a division.
§ Amendment, by leave, withdrawn.
§ 5.34 p.m.
Lord Pitt of Hampstead moved Amendment No. 130:
After Clause 39, insert the following new clause:
§ ("Immigration Rules.
§ .—(1) The Secretary of State shall, within one year after commencement, lay before Parliament in accordance with the provisions of section 3(2) of the Immigration Act 1971 such statement of the changes in the rules provided for in that enactment as may be necessary to admit to the United Kingdom for settlement, the persons to whom this section applies.
§ (2) This section applies to—
- (a) persons who become British Overseas Citizens at commencement and who at the date of the passing of this Act do not have a right of abode in any country similar to the right of abode in the United Kingdom under section 1(1) of the said Act of 1971, and
- (b) the dependents of such persons.").
§ The noble Lord said: My Lords, this is another attempt to try to provide a safety net for British overseas citizens who do not have a right of abode anywhere else. Your Lordships will remember that at the Committee stage I moved an amendment, the Government's reply to which indicated that its effect would be to allow large numbers of people to enter this country immediately. I did not accept that argument and I do not accept it now. However, I am not going to pursue it in that way this afternoon.
§ I received a letter from the Minister in which he 296 indicated that after the passage of this Bill it is estimated that there will be 210,000 British overseas citizens, that 75,000 of those are in East Africa or India, having gone there from East Africa, and will be covered by the voucher scheme, while the other 130,000 are in Malaysia. Again the people in Malaysia will have a right of abode in Malaysia, although they are not in fact citizens. If I may quote the Minister's letter, they are comparable to people who are settled here. They have the same sort of entitlement. It means that the vast majority of people who would be covered by British overseas citizenship have some right of abode somewhere.
§ However, what I am concerned about is that there will be some people who will not have the right of abode anywhere. This country should be committed to giving the right of abode to such citizens. That is what I asked for at the Committee stage and this is what I am asking for again. The difference between the amendment which I moved at Committee stage and the one which I am moving now is that now I am merely asking that if he wishes to change the rules the Secretary of State shall prepare within one year after commencement a programme under the Immigration Act for amending the rules so that such people can be admitted.
§ I cannot believe that the Government can be less—I was about to use the word "passionate", but a stronger word is required; the Government have a moral duty to these people. I cannot believe that the Government can be less concerned about their moral duty than I am asking them to be. This is a very small concession. It is merely a safety net to prevent people from becoming stateless simply because they are British overseas citizens. I hope the Government will accept this amendment which I regard as very straightforward, very simple and right. If they do not accept it, I hope your Lordships will support it.
§ Lord Belstead
My Lords, as the noble Lord, Lord Pitt of Hampstead, reminded your Lordships, the House at Committee stage debated a similar amendment which the noble Lord moved, which was replied to by my noble friend Lord Trefgarne and which ended in a Division. The House decided on that occasion against the amendment moved by the noble Lord, Lord Pitt of Hampstead. Although I understand the reasons which have prompted the noble Lord to move this amendment, I cannot conceal from the House that there is an absolutely fundamental point here which divides the Government from the noble Lord and, very briefly, I shall do my best to remind your Lordships of it.
This amendment would require the Secretary of State to lay new immigration rules within a year of commencement to provide for the admission of all British overseas citizens who at the date of Royal Assent do not have the right of abode in any country similar to the right of abode in the United Kingdom. That would in effect give at once and automatically a right of entry into this country to round about 210,000 people who at present are subject to United Kingdom immigration control.
Having said that—and it is the fundamental point—of course we are committed to the continuance of the special voucher scheme for some of these people: perhaps 70,000 who are in East Africa or who have 297 gone from there to India. But even the admittance of the United Kingdom passport holders under the voucher scheme is at a controlled rate. The right of admission of large numbers, of the order which would be involved by this amendment, all at once would place very serious strains on race relations. As I have said, this seems to be unacceptable to the Government and I guess that it would be unacceptable to many people in this country.
I must go on to say that of course I appreciate the argument which the noble Lord has put to the House: that he does not accept he is opening the door to so many people. The noble Lord pins his hopes of smaller numbers on the provision that British overseas citizens would qualify only if they do not have a right of abode similar to that defined in Section 1(1) of the Immigration Act 1971. But it is extremely unlikely that British overseas citizens, although they are, obviously, lawfully resident in countries overseas and although, so far as I know, they are not in jeopardy overseas, do not actually have a right of abode which is similar to the right of abode as defined in Section 1(1) of the 1971 Act, and that is the effect of this amendment.
Perhaps I may explain that a little further. The relevant part of Section 1(1) of the 1971 Act reads as follows:All those who are in this Act expressed to have the right of abode in the United Kingdom shall he free to live in, and to come and go into and from, the United Kingdom without let or hindrance …".This is by no means the same thing as being settled or being lawfully ordinarily resident; the right of abode under the 1971 Act is much more than that. "Settled" means being ordinarily resident without being subject under the immigration laws to restrictions on stay. But that does not give unrestricted rights to come and go in the same way as the right of abode. Thus persons settled here can cease to be settled if, for example, they leave the country and stop being ordinarily resident here. They may then not be readmissible unless they qualify under the Immigration Rules.
Of course the position of British overseas citizens under the amendment would be a matter of interpretation in each individual case. What I am trying to tell your Lordships is that the interpretation would be complex in each case. But it seems clear that in almost every case the British overseas citizens concerned would be able to argue very strongly, if not conclusively, that however safe they are in the countries in which they are residing at the present time they do not actually have exactly the same right of abode in those countries worded in the same way as is provided for people who have the right of abode under Section 1(1) of the Immigration Act 1971.
Therefore, I reckon, on behalf of the Government, that more or less the total of 210,000 people living abroad and who are not, so far as I know, in jeopardy, would be able to say, under the wording of this amendment, "We have the right of abode in the United Kingdom". I am sorry, but it is that which is not acceptable to the Government. We really could not contemplate admitting people now subject to immigration control in the numbers which would be involved, and it is for that reason that I must resist this amendment.
§ Baroness Birk
My Lords, the Minister usually prefaces his replies to many of the amendments which we move in a very charming way with the words, "although I understand the reasons". To be quite honest I am getting a little tired of his understanding the reasons and wish he would take some action on those reasons that he has been given. In moving this amendment my noble friend Lord Pitt referred to this being a "safety net", and that really is what it is. We are dealing with people who will have no right of abode anyway. If the Government at Committee stage, or even at this stage, had said, "We accept the principle of this, but we should like to bring forward a draft which we think would be preferable", I am quite sure that my noble friends would have been only too happy to co-operate with him, but that is not the position. The Government have firmly refused to make any concessions on the three citizenship structure. I think it is quite wrong for them to cling to their original structure so obstinately, by which in fact more anomalies have been created although some good has been done by the amendments which have been moved by the Government during the passage of this Bill. But they are clinging so obstinately to their structure that neither realism, compassion nor justice is being able to overtake their first abstract assumption. Whether we are on this amendment, which is an extension of many others that have been discussed, it is wrong that thousands of British nationals will have no right of abode anywhere under this Bill.
This amendment does not seek to overthrow the three citizenship structures set out in the Bill. It seeks only to give existing British nationals the minimum right that citizenship is universally understood to confer—the right of abode in the territory of which the person is a national. There is no other nation in the world that refuses that right to its own nationals. In fact, as I think the Minister knows, it was admitted by Mr. Timothy Raison earlier this year on a BBC "Panorama" programme when he was asked that question by Mr. Paul Sieghart of Justice. No other country does it. It is because this country has done so since 1968—and the Minister said that was the other Government; well, the other Government was wrong as well, as many of us feel—that the United Kingdom has had to withhold ratification of every article in an international agreement to which it is a party that proclaims that fundamental right. In establishing a new British Nationality Act we have the opportunity to right that wrong and it is interesting that during the passage of the Bill the Government have been very coy about the future Immigration Rule. I remember speaking from this Bench when we had a debate about the rules and the Minister then said, "We will of course be dealing with this in the forthcoming nationality Bill", but we have not heard very much about it.
I do not believe that we are talking about vast numbers of people and I do not believe that the Minister himself would really say that 200,000 people will all descend upon this country en masse. That is really quite unrealistic. The general figure given is somewhere between 40,000 and 70,000 at the most and those who will become British overseas citizens under this Bill will have no right of abode in any other country, no other citizenship and no security anywhere.
299 Finally, we should at least be providing the minimum that any Government—and especially any British Government—should provide for its nationals. All we are asking for is a right of abode in a territory of which they are nationals, so that they are not left abandoned and cut adrift from any British responsibility and yet still owe the same allegiance that British citizens will owe. These people accept that as well as any rights they will have they will also have duties to undertake. I am not blaming the Minister personally or individually because this is a Government Bill, but it is extremely depressing to get all the answers that we are receiving in this area.
§ Lord Pitt of Hampstead
My Lords, I am afraid I shall have to divide the House again, even though I may be defeated. I still cannot understand why the Government will not accept this amendment. I may be misinterpreting Clause 3(2) of the Immigration Act, but it seems to me that the implication of Clause 3(2) gives the Secretary of State power to make rules under which people can be admitted, and there is also a sentence which says, "shall not be taken to require uniform provision to be made". In other words, there can be different provision for different groups of people. Therefore, I find it difficult to see why the Government cannot accept the Secretary of State's rules under which these people can be attached to the voucher scheme. At the moment, of the 210,000 people which the Government admit are likely to be British overseas citizens, 75,000 of them are already due to be admitted through the voucher scheme. There are only 130,000 left after that. Of those, most of them are living in Malaysia and so far as I can see they have the right of abode there. Therefore, only a small number of people are likely to be affected and all one is saying is that the Secretary of State should make provision for that small number to be admitted. The truth is that he can do it by requiring them to make an application so that they can be placed at the end of the voucher scheme. There is nothing to prevent that being done. That is all I am asking and I cannot see why the Government should find it so difficult to make this concession. My Lords, I shall have to divide the House.
§ 5.49 p.m.
§ On Question, Whether the said amendment (No. 130) shall be agreed to?
§ Their Lordships divided: Contents, 84; Not-Contents, 114.301
|DIVISION NO. 3|
|Airedale, L.||Boston of Faversham, L.|
|Amherst, E.||Brockway, L.|
|Ardwick, L.||Brooks of Tremorfa, L.|
|Avebury, L.||Bruce of Donington, L.|
|Aylestone, L.||Chitnis, L.|
|Bacon, B.||Cledwyn of Penrhos, L.|
|Balogh, L.||Collison, L.|
|Banks, L.||Cooper of Stockton Heath, L.|
|Beswick, L.||Davies of Leek, L.|
|Birk, B.||Davies of Penrhys, L.|
|Bishopston, L. [Teller.]||Donnet of Balgay, L.|
|Blease, L.||Dowding, L.|
|Blyton, L.||Elwyn-Jones, L.|
|Elystan-Morgan, L.||Peart, L.|
|Exeter, Bp.||Phillips, B.|
|Fisher of Rednal, B.||Pitt of Hampstead, L.|
|Gladwyn, L.||Rhodes, L.|
|Hale, L.||Rochester, Bp.|
|Hampton, L.||Rochester, L.|
|Hanworth, V.||Ross of Marnock, L.|
|Houghton of Sowerby, L.||Seear, B.|
|Hughes, L.||Sefton of Garston, L.|
|Jacques, L.||Shepherd, L.|
|Jeger, B.||Shinwell, L.|
|Jenkins of Putney, L.||Simon, V.|
|John-Mackie, L.||Stewart of Alvechurch, B.|
|Kennet, L.||Stewart of Fulham, L.|
|Kilbracken, L.||Stone, L.|
|Kilmarnock, L.||Strabolgi, L.|
|Leatherland, L.||Tanlaw, L.|
|Llewelyn-Davies of Hastoe, B. [Teller.]||Taylor of Mansfield, L.|
|Lloyd of Hampstead, L.||Wallace of Coslany, L.|
|Lloyd of Kilgerran, L.||Walston, L.|
|Longford, E.||Wells-Pestell, L.|
|Lovell-Davis, L.||Whaddon, L.|
|McGregor of Durris, L.||White, B.|
|Mackie of Benshie, L.||Wigoder, L.|
|McNair, L.||Wilson of Radcliffe, L.|
|Milner of Leeds, L.||Winstanley, L.|
|Molloy, L.||Wootton of Abinger, B.|
|Ogmore, L.||Worcester, Bp.|
|Airey of Abingdon, B.||Hives, L.|
|Alexander of Tunis, E.||Hylton-Foster, B.|
|Alport, L.||Inchyra, L.|
|Ampthill, L.||Kemsley, V.|
|Auckland, L.||Keyes, L.|
|Avon, E.||Kinloss, Ly.|
|Bathurst, E.||Lane-Fox, B.|
|Belstead, L.||Lauderdale, E.|
|Blake, L.||Lawrence, L.|
|Brabazon of Tara, L.||Lindsey and Abingdon, E.|
|Buxton of Alsa, L.||Long, V.|
|Caccia, L.||Loudoun, C.|
|Camoys, L.||Lyell, L.|
|Campbell of Alloway, L.||McAlpine of Moffat, L.|
|Campbell of Croy, L.||McFadzean, L.|
|Chelwood, L.||Mackay of Clashfern, L.|
|Cockfield, L.||Macleod of Borve, B.|
|Colville of Culross, V.||Mancroft, L.|
|Colwyn, L.||Mansfield, E.|
|Cork and Orrery, E.||Margadale, L.|
|Cottesloe, L.||Marley, L.|
|Craigmyle, L.||Mersey, V.|
|Croft, L.||Monk Bretton, L.|
|Cullen of Ashbourne, L.||Newall, L.|
|Daventry, V.||Norfolk, D.|
|Davidson, V.||Northchurch, B.|
|Denham, L. [Teller.]||Nugent of Guildford, L.|
|Dilhorne, V.||Onslow, E.|
|Drumalbyn, L.||Orkney, E|
|Eccles, V.||Orr-Ewing, L.|
|Ellenborough, L.||Plummer of St. Marylebone, L.|
|Exeter, M.||Porrit, L.|
|Fairfax of Cameron, L.||Portland, D.|
|Ferrers, E.||Radnor, E.|
|Ferrier, E.||Redmayne, L.|
|Fraser of Kilmorack, L.||Renton, L.|
|Gainford, L.||Rochdale, V.|
|Geddes, L.||Romney, E.|
|Gormanston, V.||St. Aldwyn, E.|
|Gridley, L.||St. Davids, V.|
|Grimthorpe, L.||Sandys, L. [Teller.]|
|Hailsham of St. Marylebone, L.||Savile, L.|
|Harmar-Nicholls, L.||Sempill, Ly.|
|Harvington, L.||Sharples, B.|
|Hatherton, L.||Skelmersdale, L.|
|Hill of Luton, L.||Spens, L.|
|Stamp, L.||Thomas of Swynnerton, L.|
|Stodart of Leaston, L.||Thorneycroft, L.|
|Strathclyde, L.||Tranmire, L.|
|Strathcona and Mount Royal, L.||Trefgarne, L.|
|Sudeley, L.||Tweedsmuir, L.|
|Swansea, L.||Vaux of Harrowden, L.|
|Swinfen, L.||Vivian, L.|
|Swinton, E.||Wakefield of Kendal, L.|
|Terrington, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.58 p.m.
Lord Trefgarne moved Amendment No. 131:
Page 60, line 12, leave out ("Secretary of State") and insert ("Government of the United Kingdom, or by the Lieutenant-Governor of any of the Islands, or by the Government of any territory which is for the time being a dependent territory within the meaning of the British Nationality Act 1981").
§ The noble Lord said: My Lords, this is a minor amendment which is needed to ensure that the definition of United Kingdom passport which is to be inserted in the Immigration Act 1971 is sufficiently wide to achieve its purpose. The definition in its present form covers only current passports issued by the Secretary of State, but this definition does not cover passports issued in the Islands and the dependent territories. But we need to cover passports of this kind if the references to United Kingdom passports in the Bill are to achieve their intended effect (the references are to be found in the amendments to Sections 3(9) and 13(3) of the 1971 Act which are to be made in Clause 39(3) and 39(5) of this Bill). The amendment will ensure that, for instance, no one who holds a passport describing him or her as a British citizen (or citizen of the United Kingdom and Colonies with the right of abode) will have to prove that they have the right of abode by means of a certificate of entitlement, even if they are travelling on a British passport issued in the Channel Islands, the Isle of Man or an existing dependency. I beg to move.
§ On Question, amendment agreed to.
§ Clause 40 [Deprivation of citizenship]:
Lord Elystan-Morgan moved Amendment No. 132:
Page 32, line 21, after ("fraud") insert ("or").
The noble Lord said: My Lords, I beg to move Amendment No. 132 and I should like to speak also to Amendment No. 133 because the two amendments are very much linked. The purpose of the amendments is to have the view of Ministers opposite on the necessity or otherwise of having the words:
or the concealment of any material fact
forming a third category behind the categories of fraud and false representation. Some of us on this side take the view that the two categories—fraud and false representation—are sufficiently wide in themselves to cover those cases where the subject concerned has actively perpetrated any dishonest act. The purpose of raising it, however, is not to indulge in legal semantics, but to seek an assurance from the Minister that there will be no case where a person himself has been the
victim, as it were, of concealment and has in an innocent way perpetrated that concealment.
§ Let me give an example. Ali is a young boy whose father has told him that he adopted him under Moslem law in Pakistan. He comes across to the United Kingdom genuinely believing that to be the case. In every document that he is required to complete for many, many years thereafter he puts that forward as a genuine representation. He finds out later that that never was case. He has himself, of course, unwittingly perpetrated the concealment of that material fact. I suspect that the Minister will say that that is not the type of case that is intended to be the basis of a deprivation of citizenship under Clause 40. If that is so then we would be content. It is for that purpose alone that the amendment is moved. I beg to move.
§ Lord Mackay of Clashfern
My Lords, this amendment is identical I think to one moved by the noble Lord, Lord Gifford, in the Committee stage and we have certainly carefully considered the arguments that he then advanced. I think that the noble Lord, Lord Elystan-Morgan, has this afternoon simply given an example, as it were, to test those arguments.
Two criticisms of the words "concealment of a material fact" in Clause 40(1) were made by the noble Lord, Lord Gifford. First, he suggested that the words were unnecessary since cases involving concealment of facts could be adequately covered by the other references in the subsection to fraud or false representation. Secondly, he has argued that the words are, as he put it in Committee, "very dangerous" because applicants for citizenship will not be certain what the material facts are and may well conceal them inadvertently. It is really to that particular point that the noble Lord's example is directed. I should like to deal with the two matters in turn.
So far as necessity is concerned, I do not think I can do better than refer your Lordships to the circumstances in which the existing power to deprive a person of citizenship on grounds of concealment of a material fact in Section 20(2) of the British Nationality Act 1948 has been used. It has been used very rarely—only twice in the United Kingdom since 1948. Those concerned in those cases were deprived in 1951 on grounds of concealing that they were in the pay of the Czech Government to whom they sent reports on Czech nationals living in this country. It was clearly right that those two people should have been deprived of their citizenship. I am not at all certain, however, that they could have been so deprived if the power to deprive on grounds of concealment of a material fact had not been available, because it must be doutbful whether on the basis of fraud or misrepresentation they could have been caught.
Turning to the second criticism that the words are open to abuse, I can assure your Lordships that it is not envisaged that the deprivation powers in this Bill will be used any more frequently or in other circumstances than have been those in the existing law. As at present, the use of the power is only likely to be contemplated in serious cases where the concealment concerned was clearly deliberate and involved information of obvious relevance to the success or failure of the application. I think, applying that principle to the example of the noble Lord, Lord Elystan-Morgan, 303 it would be clear that Ali would not be deprived of citizenship on this ground.
There are, of course, as your Lordships recollect, very considerable safeguards in this clause against any misuse of the powers to deprive a person of citizenship on this or, indeed, any other ground. First, the Secretary of State cannot make a deprivation order unless he is satisfied that it would not be conducive to the public good that the person concerned should remain a citizen. Secondly, he must, before making an order, give the person written notice of the grounds on which deprivation is proposed and inform him of his right to an inquiry. Thirdly, the person who is to be deprived has a right to an inquiry into his case; even if the individual does not ask for an inquiry, the Home Secretary may decide to refer the case to one. Similar arrangements are to apply in the dependencies.
Accordingly, I would venture to think that we are in a position to give the noble Lord the assurance for which he has asked. The clause is in exactly the same terms as those in the British Nationality Act 1948. It has not given rise to any difficulty in that situation and I do not think that there has been any suggestion that it has been abused. It has been used in this country in the two cases to which I referred in circumstances in which I think your Lordships would all agree it was highly proper to use it. I hope that, in the light of those assurances, the noble Lord will feel able to withdraw these amendments.
§ Lord Elwyn-Jones
My Lords, in view of those assurances I would be surprised if my noble friend were not disposed to accept that advice. One hopes that in some way the assurances and undertakings given by Ministers in this House on these matters will somehow be communicated to those upon whom the duty of enforcing the law will lie. Whether there is any means of achieving that I do not know. It is important that this at any rate is on the record. The specific case which my noble friend has given may be of valuable guidance to those in whose power the immediate, at any rate, application of the law applies, although I do appreciate the protections given in Clause 40 over and above the decision of the immigration officer concerned.
§ Lord Elystan-Morgan
My Lords, I am very grateful for the assurance, and in the light of that assurance I, of course, beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 133 not moved.]
§ 6.8 p.m.
Lord Pitt of Hampstead moved Amendment No. 134:
Page 33, line 21, leave out from ("citizenship") to ("if") in line 23.
The noble Lord said: My Lords, I beg to move Amendment No. 134. This is another attempt on my part to prevent the Government from putting themselves in a position where they would increase statelessness. As I read it, Clause 40(5)(a) says that the Secretary of State:
shall not deprive a person of British citizenship … unless he is satisfied that it is not conducive to the public good",
and that I accept. However, paragraph (6b) says:
shall not deprive a person of British citizenship under subsection (3) on the ground mentioned in paragraph (c) of that subsection"—
that is, that he has been sentenced to more that 12 months' imprisonment during the last five years—
if it appears to him that that person would thereupon become stateless".
From reading that it seems to me that, although he shall not deprive a person of British citizenship on those grounds—and that particular simple ground that he was in prison for more than 12 months during the last five years, if he will become stateless—he can do it on all the other grounds even though the person will become stateless. It seems to me that that is wrong. If in fact a person has committed an offence which requires punishment, then he should be punished. But it seems to me to be quite wrong to increase statelessness. In fact, I would almost say that it is irresponsible.
My amendment will merely remove those words. Therefore, my amendment would read that the Secretary of State
… shall not deprive a person of British citizenship … if it appears to him that that person would thereupon become stateless".
In other words, it takes away this limited subsection under which the Secretary of State cannot deprive citizenship and expands the whole power of depriving people of citizenship.
§ It is my view that this is an improvement because, in effect, it means that if the Secretary of State is minded to deprive someone of his or her citizenship, he would definitely have to bear in mind the question of the person becoming stateless. It is right that he should be restricted in this way, and I hope that I shall not have to press this to a Division, but that the Government will accept this amendment.
§ Lord Renton
My Lords, the noble Lord's amendment gives rise to two conflicting matters. I have some sympathy with the views expressed by the noble Lord, but I am afraid that I would not resolve the conflict in the simple way that he proposes. On one side of the argument we want to avoid statelessness; we want to avoid people resuming statelessness (if they had it before) through being deprived of citizenship which has been granted to them. On that I think we can all agree. As has been said before, this country has a very honourable record in preventing statenessless and in removing statelessness where it has arisen.
However, on the other side of the argument if someone has, knowingly and knowing of the risk that it may involve their resuming statelessness, abused the privilege of having been granted naturalisation as a British citizen, should they simply be allowed to get away with it unscathed? In my opinion we owe it to the people of this country to protect British citizenship as a very special privilege, one not wantonly to be abused.
Therefore, I fear that I come down against the noble Lord's amendment. In that conflict of two matters which must be resolved, I would resolve it the other way from the way in which the noble Lord proposes. Therefore, I would not gladly support 305 my noble friends if they were to agree with the noble Lord, Lord Pitt.
§ Lord Mackay of Clashfern
My Lords, I would confirm in the first instance that the clause in the Bill has the effect that the Secretary of State may not deprive a person of citizenship under the caluse on the ground stated in Clause 40(3)(c)—that is, the sentence of imprisonment—if the result is that the person will be stateless. But, as regards paragraph (a) and (b), he does have that power and the effect of the amendment of the noble Lord, Lord Pitt, is to prevent the Secretary of State from depriving a person of citizenship under this clause in any circumstances if the result of that will be that the person will be stateless.
The two paragraphs that are between us on this point are paragraphs (a) and (b) of subsection (3). Paragraph (a) covers disloyalty or disaffection by act or speech towards Her Majesty. Paragraph (b) is concerned with communicating, trading or doing business with the enemy in time of war. One might describe this area loosely as treachery and espionage. It certainly falls within the saving in the United Nations Convention on the Reduction of Statelessness to be found at paragraph 3(a)(ii) of article 8. This permits a contracting state to retain the right to deprive a person of his citizenship even though he might thereby become stateless, if he has conducted himself in a manner seriously prejudical to the vital interests of the state.
The Government take the view—and I am grateful for the support of my noble friend Lord Renton on this matter—that it is reasonable to retain the power to deprive in these cases. I think that it would be the subject of a good deal of public concern if, for instance, it was known that a person committing any of the acts described in subsection (3)(a) and (b) had been granted our citizenship but could not thereafter be deprived of it. The safeguard, which I mentioned, of a right to an inquiry would remain for these cases, as with the others covered in Clause 40; and the Secretary of State must be satisfied that it is not conducive to the public good that the person concerned should continue to be a British citizen.
Of course, it is obvious that in exercising this power the Secretary of State would have regard to all the circumstances, and the fact that one consequence of the exercise of the power would be to render the person subject to it stateless would be in his mind when deciding to exercise it. However, we think that it goes too far to remove this power altogether. It is obviously a power to be used, I hope, very sparingly and very wisely, but we think that the existence of the power ought to be preserved. In the light of that explanation, I hope that the noble Lord will feel able to withdraw this particular amendment.
§ Lord Pitt of Hampstead
My Lords, before the noble and learned Lord sits down, it is obvious that he and I have interpreted this clause differently. As I read the clause, the Secretary of State also has the power to withdraw citizenship on grounds of fraud, false representation or concealment of material facts. It is not only on the ground that the person has, in fact, committed the offences in paragraphs (a) and (b). If I have read the clause correctly, I think that my grounds are much stronger than those of the noble and learned 306 Lord. I should be grateful if he would tell me whether I am right or wrong.
§ Lord Mackay of Clashfern
My Lords, I am concerned only to point out that the circumstances in which statelessness can result from the exercise of the power include those in paragraphs (a) and (b). That is how I read the clause. Accordingly, the result is that subsection (5) deals with the situation of subsection (3). It is saying:… shall not deprive a person of British citizenship under subsection (3) on the ground mentioned in paragraph (c) of that subsection if it appears to him that the person would thereupon become stateless".In other words, the restriction deals only with the exercise of power under subsection (3) and is restricted to paragraph (c) of that subsection.
§ Lord Pitt of Hampstead
My Lords, we are obviously at loggerheads on this. My interpretation is different. I should be glad if the noble and learned Lord would write to me about this because I do not intend to divide the House. But, as I see it, the Secretary of State has the power to deprive people of their citizenship not only on the grounds mentioned in subsection (3), but on the grounds mentioned in subsection (1). The grounds mentioned in subsection (1) would, in fact, result in people being stateless. It was because of subsection (5)(b) being too restrictive that I tabled my amendment. It is a point that I do not intend to pursue. However, I should be grateful if the noble Lord would look at it and write to me about it. I may well be wrong in my interpretation, but as I interpret the clause, the Secretary of State has the power to deprive people of citizenship on the grounds we have mentioned before and also on those mentioned by the noble and learned Lord; that is, those mentioned in subsection (3)(a), (b) and (c). He is not allowed to deprive them of their citizenship under paragraph (c) if that would make them stateless, but he is allowed to deprive them of citizenship on everything else if it makes them stateless. This was my interpretation, and it was that I was trying to remedy. Anyway, I will not pursue it. I beg leave to withdraw this amendment.
§ Lord Mackay of Clashfern
My Lords, perhaps before your Lordship agree to grant that leave I could clarify the situation a little further. Subsection (1) deals with deprivation of citizenship which in effect was wrongly obtained. If all that has happened is that something has been wrongly obtained, there seems to be little demerit in effect in going back to the status quo. Therefore, subsection (1) is in a different position from subsection (3). But subsection (3) deals with deprivation of citizenship by, in effect, conduct following on the grant of citizenship.
Once you have altered the status quo in that way by a citizenship which was lawfully given, as it were, properly conferred, then the circumstances are different, and that is why I restricted myself to dealing with subsection (3). The noble Lord is perfectly right that statelessness may be a result of removing a citizenship which was granted under subsection (1), but since that was obtained wrongly in the first place there does not seem to be anything wrong with that. You are just reverting to 307 the position that would have obtained, but for the wrongful obtaining of citizenship.
§ Amendment, by leave, withdrawn.
§ 6.22 p.m.
Viscount Colville of Culross moved Amendment No. 135:
Page 33, line 39, after ("(7)") insert ("or section (Appeals against refusals of naturalisation) (1)").
§ The noble Viscount said: My Lords, if your Lordships would agree I think it might be convenient to deal with this amendment and at the same time speak to Amendment No. 141, because this is only a paving amendment to make way for that. We come now to the question of appeals. There are, as I conceive it under this Bill, really three different types of situation where one might wish to consider what ought to be done about appeals. The first of them is the simple matter of a decision by the Secretary of State, or the Governor or the Lieutenant Governor, about naturalisation. That is dealt with in the first two subsections of my new clause in Amendment No. 141.
§ Then there are a whole number of decisions in this Bill again to be taken completely as a matter of discretion but which are rather separate issues. Some of them provide for the prolongation of time limits; some of them make other concessions about criteria that have been laid down. Those are dealt with in subsections (3) and (4) of Amendment No. 141. Perhaps I could come back to those a little later. Then there is an entirely separate set of provisions in this Bill which are quite different, because the Bill provides that in the case of those—and perhaps Clause 4 is as good an example as any—the person concerned is entitled to registration as a matter of right. One may have to come to consider—and I am afraid your Lordships will have to come to consider under Amendment No. 142—whether the machinery for appeals on that has been correctly stated in the Bill. However, that has nothing to do whatsoever with either this amendment or Amendment No. 141. These are solely concerned with the discretionary cases.
§ Perhaps I might address myself first to the question of naturalisation, which occurs in the case of British citizenship under Clause 5 and in the case of citizenship of the dependent territories under Clause 18. Under the Bill this is solely a matter of discretion. There is no form of appeal against the decision of the Secretary of State, and your Lordships will no doubt be told there never has been and that it is wrong now that there should be. It is perfectly true that there never has been.
§ The provisions that are reproduced in this Bill which prevent the review or questioning of any discretionary decisions by any court are reproduced from Section 26 of the British Nationality Act 1948. It is interesting—I looked it up in the Official Report of both Houses—that not one single word was spoken on the ouster clause in 1948 in either House, which provided that there was to be no appeal whatsover against these decisions. I am afraid your Lordships may well be told by my noble and learned friend on the Front Bench that that is the way it should remain. I would venture to differ from that view for a number of reasons.308
§ First, in 1948 the whole question of appeals against the decisions of the executive was in a very infant state. Indeed, the courts when they came to deal with these sort of things were not on the whole inclined to allow appeals by the citizens against the exercise of discretion by the Executive unless they absolutely had to. But things have changed since then. Perhaps I could give an analogy. In 1948 the provision relating to immigration and the ability of any person to enter this country was also a matter of complete discretion, and there was no appeal whatsoever against the decision of the Secretary of State. But all that changed on the immigration side.
This is what the Home Secretary said in 1969:
The present position as the law stands is that the Home Secretary has the power to keep any alien out of the country and I also have power to exclude any Commonwealth citizen unless he can show that he has a statutory right of admission. In the exercise of these powers or, indeed, for my failure to exercise these powers in particular cases, I am answerable to the House, and this responsibility is brought home to me at regular intervals, as well as to the junior Ministers in the Department and to the officials, by a continuing stream of correspondence from hon. Members, who, while they may be against immigration in general, nevertheless always find an exceptional case in which I should have allowed someone in whom I have refused…." [Official Report, Commons; 22/1/1969, col. 489.]
And so on. That led to the provisions in the Immigration Appeals Act 1969, which provisions were at the time not entirely found agreeable by my noble and learned friend who now sits on the Woolsack and who was speaking for the Opposition Front Bench. However, he did not seek to oppose them wholly.
§ When the Administration, of which I had not quite yet become a member in 1971, passed the Immigration Act of that year they saw fit to retain all those powers of appeal. There is a very substantial switch in the way in which Parliament thought fit to deal with absolute powers of discretion affecting, in that case, matters of entry into this country; matters which I would suggest to your Lordships are extraordinarily cognate to the question of naturalisation. So it does not seem that it is impossible for Parliament to change its mind about providing for a right of appeal.
§ Very well then, what sort of right of appeal? The right of appeal under the immigration provisions is of course quite a severe one in that the decisions that are reached are binding on the Home Secretary. One of the objections that has always been made about appeals in naturalisation cases is that it always has been, and should remain, a matter for the discretion of the Home Secretary for a number of reasons, but certainly including the fact that he is required to be satisfied that a person is of good character—and this is not always a matter that is very easy to discuss in appeal proceedings, or to disclose the matter which has been considered as relevant—and ultimately of course there is the security consideration.
§ I have not provided in this amendment for any system of appeal which could override the Secretary of State's discretion. It is most important that your Lordships appreciate that, whatever may happen as the result of an inquiry such as that which I am suggesting in cases of naturalisation, ultimately it will be for the Home Secretary to say Yes or No, and he need not agree even with a favourable recommendation from the inquiry. That is the same as has always applied since 1948 to the provisions for the deprivation 309 of citizenship about which we have just been speaking. There have been five cases under those provisions. I believe that in fact the Home Secretary has always accepted the recommendations of the inquiry but it is common ground that he need not do so if he wishes to override it. So there is nothing in this amendment which takes away the ultimate power of the Secretary of State to deal with these matters at his discretion, although no doubt there would be a powerful pointer to the way in which he should go in the recommendations made by the committee of inquiry.
§ I have extended this existing procedure so as to bring it into force in a way in which it has been previously used, albeit on a limited scale. It is no new procedure that is being invented; it is an extension of an existing procedure. That again is not new because, in regard to Section 3(3) of the British Nationality Act 1965, the power there bestowed upon the Secretary of State—which was, I believe, to deprive a woman of her status if for some reason she had been registered as a United Kingdom citizen in certain circumstances—was also made subject to the power of appeal to a committee of inquiry, although again ultimately it would have been the Secretary of State's discretion when it came to a decision.
§ There is then the question of good character, and ultimately of security. Some noble Lords might well think that the question of good character at any rate also ought to be the subject matter of an appeal, but in order to make things as easy as possible for my noble and learned friend and his colleagues on the Front Bench to accept this amendment, I have specifically excluded any appeal on the question of good character. The reasons for this are fairly convincing and they have been put forward in another place; it may not be either possible or sensible to give in public the reasons as to character which have motivated the Secretary of State in refusing an application.
§ On the other matters in the relevant paragraphs in the first schedule, it seems that there really can be no difficulty about giving reasons, but I concede that in some cases the question of character could be difficult and therefore as a matter of statute I have not suggested that this should be included among the matters which can be the subject of appeal. I hope that is a helpful concession. The discretion remains with the Home Secretary and he does not have to contemplate an appeal in those cases where it would be difficult for him to give grounds for his decision.
§ What objection can there then be? As I told your Lordships in Committee, I carefully studied the speech made by my right honourable friend in another place on a rather different form of appeal procedure. I believe that even my rather inchoate amendment which I moved at that stage succeeded in dealing with the problems which he raised. When my noble and learned friend Lord Mackay of Clashfern came to answer this at Committee stage, the only reason he could give really boiled down to one of finance: that there would be an extra charge on the public purse in cases of this sort. I ventured to write to my noble friend Lord Belstead to ask him what expense is incurred now in dealing with what I believe are numerous cases referred to the Secretary of State through Members of either this House or the other place. These figures, for reasons which I entirely forgive, could not be produced for me, 310 but my noble friend mentioned the view that he thought if there was an appeal procedure there would be no lessening in the number of cases presented through Members of either House.
§ I will leave your Lordships to deal with that in whatever way you think fit, but for myself I should have thought that if there was a refusal and a committee of inquiry recommended after all that naturalisation should be granted, and the Home Secretary on second thoughts accepted that recommendation, then it would be very unlikely that any Member of either House would thereafter wish to address himself to the Home Office to complain. Why should he? In which case I do not see that there would be double expenditure in the public sector in such a case. It is true that there might be a complaint if there was a refusal, but those cases which are now satisfactorily reconciled with the Home Secretary's opinions through an approach by a Member of either House, which would in future be dealt with similarly by the committee of inquiry procedure, ought not to be a double burden on public funds, so I hope that it will not be said that expense is an overriding consideration.
§ As I see it, the atmosphere surrounding this sort of matter has changed and so has the way in which Parliament looks at it, and although we happen to be legislating at a particularly difficult time in the economic field, we are legislating for many years to come and we should not purely on financial grounds deprive people of a form of appeal which would otherwise be wholly satisfactory and suitable for them.
§ 6.36 p.m.
§ Lord Drumalbyn
My Lords, can my noble friend say what would be the composition of such a committee of inquiry, and what would be its powers?
Viscount Colville of Culross
My Lords, it merely requires your Lordships to look for a moment at Clause 40 (7), which states that:the Secretary of State may, refer the case to a committee of inquiry consisting of a chairman, being a person possessing judicial experience, appointed by the Secretary of State and of such other members appointed by the Secretary of State as he thinks proper".This has been satisfactorily achieved in the past in the five cases to which I have referred. The powers are made by rules under Clause 40(8) and in fact exist for the purposes of cases of deprivation of British citizenship and would be easliy adaptable, and so the mechanics of this would be quite easy to resolve.
I should like for a moment to touch on a slightly different matter of subsections (3) and (4) of my Amendment No. 141. In addition to the pure and simple naturalisation discretions, there are of course a whole range of other discretions in this Bill. I have suggested to your Lordships' House that this could be dealt with, particularly in view of the present financial stringency, by an experimental extension of these powers as time went on. I have listed them—not, I am afraid, wholly accurately in view of some of the amendments which were made earlier to Clause 3(17) and the first schedule, but that could be put right because it is only a technical matter of drafting. I have listed the discretions as they stand in the Bill at 311 the moment in subsection (4) of my amendment, and I have suggested machinery whereby one or more of them could be introduced as being susceptible to the committee of inquiry procedure as and when the Secretary of State thought fit, by means of statutory instrument.
That is a different matter from naturalisation and your Lordships may or may not think that that is the right way to do it. If your Lordships think not, no doubt there are other means which one could adopt, but I do not wish any possible hesitation over the extension of this principle to the other discretionary powers in subsections (3) or (4), whether that be right or wrong, to detract from the main argument that I have been putting forward on subsections (1) and (2) of Amendment No. 141, which relates to naturalisation itself. This I believe to be a fundamental matter, one to which a number of noble Lords attach great importance and one which I truly believe I have provided with a solution which stands up to the criticisms of all the debates on the Bill, providing not only a well-tried but a proven and workable procedure to deal with it. I beg to move.
§ Lord Elwyn-Jones
My Lords, this seems to noble Lords on this side of the House to be a modest but nevertheless useful limitation on the unfettered exercise of discretion by a Secretary of State. The noble Viscount, Lord Colville, with his customary clarity, explained its purpose, but it may be useful, repeating something of what he said, for me to point out that the right of appeal that is given is extremely limited. Its aim is to give that right to applicants for naturalisation who are turned down because they fail to meet the requirements of residence, sufficient knowledge of language and the future intention to reside, all of which would seem, with respect, to be very appropriate for the kind of appellate machinery of the reference to the committee to which the noble Viscount referred.
Some of my noble friends would have liked also a right of appeal in respect of refusal of naturalisation on grounds of character, for the reason that that language is very wide; it suffers from a total lack of precision but, speaking politically, I see the force of what he said. He is prepared to forgo that possibility in the confident expectation that the Front Bench opposite would not carry it, and I sympathise with him in that, and it is certainly not a ground whereby I would refuse support of the amendment. What is suggested by way of a right of appeal is, in the context, a very modest one, as I said.
One problem which arises under Clause 44, even with the useful amendment to which we will come, namely No. 143, is that there is no requirement that reasons need be given for refusing a discretionary application. That still applies even in the light of the noble Viscount's amendments, and it is therefore a little difficult to see how the committee could effectively operate without reasons being given, and that is an aspect of this right of appeal which troubles us very much indeed.
Viscount Colville of Culross
I was attempting to be as brief as I could, my Lords, and I had dealt with the point in Committee. There is in the Official Report 312 of another place a pledge by my right honourable friend the Home Secretary that he would give reasons in practice on all the grounds except (b).
§ Lord Elwyn-Jones
My Lords, I am grateful to the noble Viscount for that intervention, which will be on the record of this House, and I am glad to hear it is on the record of another place, and that certainly increases the value of the discretionary procedure. I confess that if that promise or undertaking was given, it would have been more convincing if it had been made and embodied in the language of the Bill. For what it is worth—and it is worth a good deal of course; that must be so when one gets assurances by Ministers on matters of this kind—and no doubt the matter will be pursued. I am grateful for that intimation.
What is proposed seems to my noble friends and I to be helpful. One matter I should like to see clarified arises in Clause 40(7), to which the noble Viscount referred, relating to the composition of the committee. It is said that it is to be a committeeconsisting of a chairman, being a person possessing judicial experience".I hope he will be a High Court judge, or even a former High Court judge. I would not dare suggest a former Lord Chancellor; that would be chancing my arm very excessively. I mean that it should be a person of standing, and although—as has been said, to establish the modesty of his proposals—the last word at any rate still remains with the Secretary of State (even if the noble Viscount's amendments are approved by the House, as I hope they will be) I would hope and expect that in most cases the Secretary of State would be disposed to follow the advice of his committee. It only goes again to show what a modest, if extremely helpful, amendment this really is.
§ 6.47 p.m.
§ Lord Avebury
My Lords, the noble Viscount, Lord Colville, drew attention to the economic factors which would prevent the exercise by the Secretary of State of the discretion he is given in subsections (3) and (4) of the amendment immediately in the future, and he wisely said that that would be left to develop as money became available. The noble Viscount was underlining, if he will permit me to say so, the difficulties we get into as soon as we depart from the rule which was suggested in the 1977 Green Paper, namely, that there should be objective tests for citizenship; that would have removed a substantial element of discretion from the Bill and thereby saved considerable public resources.
If we had applied the series of three tests which were suggested there—that a person had to have a clean record, without criminal offences carrying a sentence of imprisonment of over a certain length; that a person had not to have been an undischarged bankrupt; and that a person had not to have been found unfit to manage a company—those tests, being absolute and objective, would have removed a substantial amount of the discretion which must be exercised by the Secretary of State, though I accept there would still have been the security cases which one would have had to leave to his discretion.
Nevertheless, we find ourselves in the position of having to argue about what kinds of appeal machinery should be established to fetter the absolute right of 313 the Secretary of State to say Yes or No. I should have thought it obvious—indeed, I should have been surprised if the whole House did not agree—that some kind of right of appeal was necessary, be it of the comparatively modest nature which the noble Viscount has recommended or something more substantial which would have touched the important test of character, which is to be left entirely to the Secretary of State.
I agree with the noble and learned Lord that we should be grateful for half a loaf, if we can get it, because it enables us to look at some very important aspects of the discretion which is to be exercised by the Secretary of State, even though one would consider that the matters dealt with in subsection (1)(a), (b) and (c) are largely questions of fact. I can think of instances where there might be arguments between the applicant and the Secretary of State which could be resolved only in a committee of the kind the noble Viscount has suggested.
I want to give just one example. Subsection (1)(a)(iv) refers to the person not being in breach of the immigration laws during the five years preceding the date of his application. As the noble Lord, Lord Belstead, will be aware, cases frequently arise where it is alleged that a person was in breach of the immigration laws because he made a false statement to an entry certificate officer when he was originally given permission to enter this country. At the moment, under the immigration laws the Secretary of State's decision on a matter of this kind is final, and it can have very serious implications.
I should like to give one example out of the many cases that I have submitted to the Minister of State. A person entered this country with a reference from a restaurant in Hong Kong which stated that he had been employed by the proprietor as a cook for the five years up to the date of his application for a work permit. He was granted a work permit to enter this country as a cook, on the basis of the reference. After many years the Home Office alleged that he had not been employed in the restaurant for five years as a cook. Detailed inquiries were made of the proprietor, whom I may say could not speak English and so the interview had to be conducted through an interpreter. The upshot of it was that the person had been employed in the restaurant as a cook for only four years and that for the first year he had been employed as a waiter. That is what was alleged. So the person was alleged to be an illegal entrant on the basis of false references having been proffered to the entry certificate officer, in that they did not entirely comply in every detail with the experience that the person had had.
I imagine that if the person had been an applicant for naturalisation and the Home Secretary had denied him his citizenship on the basis that it was claimed that something had been wrong with his references, then as things stand at the moment the Secretary of State's word would be final. There is no way in which the matter can be tested by any tribunal or committee of inquiry whatever, and perhaps important decisions of this nature could be made.
I would not think that we should restrict the right of appeal in the way that we have done because I know of many cases where an applicant for British citizenship has been turned down on grounds of 314 character where I considered myself that the Minister's decision was frivolous and should have been subject to the scrutiny of an independent body. One case was that of a man who, when interviewed by the immigration officer for the purposes of his application, was asked whether he had ever been convicted of any offence in an English court, and he replied that, yes, he had; he had inadvertently driven through a red light and had been brought before a court and fined for that offence. The interviewer then asked, "Can I see your driving licence?" When the man showed the immigration officer an international driving licence, the officer asked, "Don't you know that you're not allowed to have an international driving licence for longer than 12 months?" The man replied that he went overseas with his wife, who was a citizen of another country, and he had used the driving licence every year in her country. No one had ever objected to the practice, nor had the court which saw the licence in order to endorse it drawn attention to the fact that he was in breach of the law. So the immigration officer next asked him: "Have you not ever considered taking a driving test in this country?", to which the applicant replied: "Yes, I had arranged a date to take the test in April, but it was not convenient".
At that point the interviewer went off onto another tack, but he subsequently made inquiries of the driving test people. He discovered that the applicant had indeed cancelled the test that he had arranged for April. When I inquired of the Minister why the man's application had been refused, the reason given was that he had told a lie to the immigration officer, in that he falsely represented that he had made arrangements to take a driving test in April when in fact it had been cancelled.
That is the kind of thing that is used as an excuse for refusing a person's application for citizenship, and I should have much preferred that we had a test such as that before the committee as well. Nevertheless, I believe that the amendment tabled by the noble Viscount will provide some possibility of an appeal in very many important cases. I believe that it will reduce the case load of Ministers in the same way as the immigration appeals machinery of 1969 has certainly done by referring so many cases to the adjudicators. So I very much hope that we shall write into the Bill something which will be of enormous benefit to a great many applicants and indeed to the Secretary of State in removing a great many letters from his postbag.
§ 6.57 p.m.
§ Lord Campbell of Alloway
My Lords, I most respectfully invite your Lordships to reject the proposed amendment and very briefly give my reasons. Under the Bill the Secretary of State has three types of discretion; not the three categories advanced by my noble friend Lord Colville of Culross but, I would suggest, the following, each of which requires separate consideration: the first category of discretion is the discretion by which the Secretary of State deprives status. It is a deprivation of citizenship where quasi-judicial appellate machinery is provided under subsections (6) and (7) of Clause 40 of the Bill. That acts as a safeguard against deprivation of rights by the Executive. Certain assurances have most recently 315 been given in this regard. I understand that that aspect of the exercise of discretion is therefore no longer under consideration.
That leaves two aspects. These two are different in quality. They both relate to the grant of status. The first is the grant of status where there is no, and was no, entitlement as such under the Bill. These types are, for example, the grant of naturalisation under Clause 5; the withholding of registration in time of war (Clause 12); registration of the declaration of renunciation (under Clause 19) and the absence of an entitlement (under Clause 13(1)). All those are concerned with grant of status where there was no pre-existing entitlement under the Bill.
The third category is different. The third category is the grant of an extension of time, or an extension of other criteria, so as to enable an entitlement to be claimed which has been lost because of non-compliance with the time limits or the criteria. This is the grant of discretion exercised in favour of the applicant in order to extend the time limits in the circumstances of any particular case. The examples are Clauses 1, 3, 15, 17, 19 and 28.
Within those three types—and your Lordships may think that at the moment we are concerned with only the last two—I suggest that one must take on board the concept that there has been a vast shift of emphasis in the Bill since the Committee stage, the shift from discretion to entitlement. This, read in conjunction with Amendment No. 143, renders the ouster clause (Clause 44), which relates only to discretion, of far less practical consequence.
If that analysis be correct—and I seek not to detain your Lordships—then, if it is accepted that on grounds of public policy there are certain areas where administrative discretion should not be subject to scrutiny by the Judiciary, then surely the first category lies within that area. It is, I would have submitted, not to the point that the machinery of administrative law has eased in certain directions, that it is more flexible now than it was. That is machinery. What is at stake is this principle: should the Judiciary have the right to review matters which lie, and should lie, within the exclusive province of the Executive? I submit to your Lordships that naturalisation is one of those matters, and that within that category the other matters follow suit.
But the problem is, your Lordships may think, that this ouster clause, as it is drafted, is far too wide because it excludes judicial review for the third category, and therefore it governs grants of extension of time to enable lost entitlements to be claimed. Here, no question of public policy could conceivably arise; and if there was an unreasonable exercise of discretion in the sense that no sensible Minister mindful of his responsibilities could have made such a refusal, because of this ouster clause the courts are powerless to intervene, and that, I submit to your Lordships, is clearly wrong and clearly unjust.
To conclude, if I may, on the asumption that on the question of administrative discretion this ouster clause (Clause 44) could be redrafted so as to limit it in some way to the naturalisation type of discretion and allow free judicial review by due process of the other type, and on the assumption that in this regard perhaps my noble 316 friend the Minister might think again, I for one (and I would respectfully suggest, on this ground, your Lordships might reject the proposed amendments.
But there are other reasons, too, and the first is this: if your Lordships look at the drafting of subsection (1) of this clause—and your Lordships have to remember (I am sure your Lordships have it well in mind) that these amendments were in fact proposed before the Bill changed its shape and had this very substantial and important shift of emphasis—your Lordships may not think that in the event of a refusal of an application for naturalisation it is appropriate that it should be mandatory on the Secretary of State to refer to a committee of inquiry. There have been, we are told, five cases, and this has worked, so your Lordships are informed, satisfactorily in the past. Why should it be necessary to turn a discretionary power into a mandatory obligation?
The second reason is that the machinery adopted in subsections (3) and (4) of the proposed amendment is extremely cumbersome and would be wholly unnecessary if the ouster clause were redrafted in the manner which I have suggested, so as to give the right to the due process of judicial review in the second category (or what is really the third category) of discretionary cases. I urge upon your Lordships most respectfully that it would be right in this sphere to consider amendment to the ouster clause to enable judicial review to run in that sphere, but it would be wrong to bring within what is really, and always has been, the sovereign province of the executive matters for scrutiny by the Judiciary.
§ 7.3 p.m.
§ Lord Renton
My Lords, very briefly, I find myself somewhat perplexed. At Committee stage, along with other noble Lords on both sides of your Lordships' Committee, I expressed some doubts about Clause 44, the ouster clause, because it seemed to me that subsection (1) of it was giving a strange sort of paradoxical right. Although it was a discretion to be exercised, it was to be exercised without regard to race, colour or religion. But, in the nature of things and because of subsection (2) of the ouster clause, there was no certainty that the right to have the discretion exercised without regard to those three things was a right which could be enforced, and so I said ubi jus ibi remedium.
There are no amendments down, not even the amendments of my noble friend Lord Colville, which overcome that difficulty, to which my noble friend Lord Campbell of Alloway has also just referred. May I say that I have had no discussion or conspiracy with him about what he was going to say; I did not know what he was going to say. But, to the extent that the amendment moved by my noble friend Lord Colville does not appear to deal with this inherent difficulty in Clause 44, I, too, share the doubts about his amendment. However, I think that the inherent difficulties in Clause 44 have somehow got to be dealt with.
I was very much hoping that after our discussion at Committee stage, which I think was followed by a rather close Division, the Government might have tabled some amendment themselves. We have an amendment down—and I hope it is not out of order to refer to it, because it is relevant—in the name of my noble friend Lord Belstead (it is Amendment No. 143) but that does not deal with the matter because it deals 317 only with the right of access to the court where there is an entitlement. I suppose that some very tendentious lawyer might argue that subsection (1) of Clause 44 grants an entitlement, but I do not think it would be proper to interpret it in that way. Therefore, we are left with a real difficulty.
As I say, my Lords, I am perplexed, and perhaps other noble Lords are; but I shall be very interested to hear what whoever is going to reply on behalf of the Government has to say about this problem.
§ Lord Belstead
My Lords, the right to an inquiry against a refusal of naturalisation is a matter within the discretion of the Home Secretary, and it is because this is a matter for my right honourable friend that I am replying on this occasion to my noble friend Lord Colville of Culross. My noble friend's amendment would set up a right to an inquiry in only certain circumstances, confined to three of the criteria which are to be found in Schedule 1 to the Bill. They are: the residence requirement for somebody who wants to be naturalised; the language test; and the requirement that an applicant, if naturalisation is granted, intends to make his home in the United Kingdom or intends to serve United Kingdom interests overseas.
I admit straight off that a limited appeal of the kind which my noble friend Lord Colville has put into his new clause is arguably less difficult to operate than a general right of appeal which would apply also, for example, to the essentially difficult requirement of good character. However, even with a limited right of appeal, I think there are very real difficulties, and my noble friend Lord Campbell of Alloway addressed your Lordships at the end of his remarks on some of the difficulties he saw. My noble friend Lord Colville of Culross has argued that the criteria covered in his clause are objective criteria which could be readily justiciable by a committee. But I wonder whether this would be the case in practice. Take the language requirement, for instance. Is it not really largely a matter of opinion whether or not a person's command of English is sufficiently good to justify the conferral of citizenship? The reason for that is that we are always anxious that a citizen should be able to take a full part in civic rights in this country. If my noble friend were to ask teachers or examiners, I think they would all confirm that it is a very difficult thing to standardise an assessment of a person's facility in the English language.
Again, in the case of future intentions, would there really be hard facts to consider a second time on inquiry? In such cases it seems to me likely that a committee of inquiry merely would be listening a second time round to cases where the applicant would be stoutly maintaining a desire to live here and to be attached and identified with this country in a particular case where it has already seemed less than credible that a person was really telling the truth. After being refused naturalisation because, for instance, of language, the genuine applicant in most cases goes off and gets a bit better in speaking and understanding the language; and by the time a committee of inquiry would sit his command of English would be better and the applicant would be moving—and good luck to him or her—towards a position where he or she would be able to apply again successfully.
318 The noble and learned Lord, Lord Elwyn-Jones, and Lord Avebury quoted my right honourable friend in the House of Commons who, I think, in fact, said that we were going to use our best endeavours to see that reasons are given in cases where they can be given; and when that happens I assure your Lordships that I know that what occurs is that an applicant is able to put in a straightforward successful second application.
But the central reason why this amendment is being treated, I am afraid, with suspicion by me on behalf of the Government was identified by my noble friend Lord Campbell of Alloway in that naturalisation is the conferment of citizenship by the state. We have always throughout our history decided how we want it to be done and then we have left the executive power, as my noble friend called it, to get on and do it by discretion. An appeal system would change that. An appeal system in effect, would be saying to people, "You got have a right which you can exercise even if actually we do not trust you and we do not actually want you." It has been suggested by my noble friend Lord Colville of Culross that one of the advantages of the proposed new clause is that recommendations for the committee of inquiry that will not be binding on the Secretary of State. Ultimately the decision whether or not to grant citizenship will still be for the Home Secretary. I know that my noble friend intends this. I do not question that for a moment. But I wonder whether in practice it would work out like that. Even if my right honourable friend were to disagree with the committee's decision it seems to me that it would be extremely difficult for him not to comply with the committee of inquiry; otherwise the whole procedure being set up would be seen as a sham and would command little confidence. I believe that this amendment—although it would not be intended by my noble friend—would be leading to the final say over naturalisation being taken away from the Secretary of State and given to a committee of inquiry.
There is a problem over the partial nature of an appeals system of this kind. It would be necessary to make clear to applicants that they have been refused on grounds of good character simply in order to be able to say, "I am sorry but you cannot have an appeal, because you do not fall within the scope of the amendment of the noble Viscount, Lord Colville". Endless disputes would be likely to arise. What would be happening in cases where refusal was on grounds of, say mixed language and good character?
§ Lord Elwyn-Jones
My Lords, no honest Home Secretary would do anything of the kind—to concoct a good character excuse if there were other grounds in his mind.
§ Lord Belstead
My Lords, I am surprised that the noble and learned Lord should suggest that of any Home Secretary. I would have assumed that if the grounds for refusal of naturalisation were on mixed grounds, the honesty of the situation would require those who are in such positions—where we are always being told in this House that officials should deal in a straightforward and upright way with cases, as I believe they always do, that they—would have to say so. What would happen in practice is that there 319 would be endless public wrangles as to whether somebody was refused on the grounds of good character and, before we knew where we were, we would be discussing in public character cases—which my noble friend is not intending to bring within the scope of his amendment.
If I may say so, there is the ground of the Parliamentary Commissioner for Administration and there is the ground, rightly, of Members of Parliament and Members of this House to come (as they do in very large numbers) to complain and in effect, to appeal even ahead of the immigration appeals procedure if they believe that justice has not been done in particular cases; whereas under this amendment we are going to set up a piece of machinery for which the resources would have to be found.
I have confined my remarks entirely to naturalisation but there is the other part of my noble friend's argument which deals with future application of the new clause to the other discretionary powers of the Secretary of State under the Bill. My noble friend Lord Campbell of Alloway has bowled me a fast ball by saying that it is possible, indeed, desirable, to split these discretionary decisions into decisions of two different kinds. So far as that subject is concerned, I should like to have a look at exactly what my noble friend Lord Campbell of Alloway has said and to have the opportunity to study it and reply to him on it. But that leads me to a general and, I think, vital point which I think could arise from this amendment. If the right of appeal is to be confined to cases which do not include the assessment of character, then it is arguable, and I have argued, that the appeals machinery would be an expensive piece of machinery which would be in practice of little benefit to the applicant who, if he or she is a genuine applicant will generally apply a second time successfully.
But once you have set up appeals for naturalisation, the noble Lord, Lord Avebury, in his speech clearly showed the House that inevitably it will be expected that appeals should be extended to cases of character and before you know where you are you will be into security cases. This is the one point in this area of the Bill which my noble friend Lord Home of the Hirsel warned the House specifically against when he was speaking on 28th July (at col. 706) about naturalisation. Of course, I accept absolutely that the intentions of my noble friend Lord Colville of Culross are in line with those of my noble friend Lord Home of the Hirsel in this particular respect. My noble friend Lord Colville of Culross does not intend in this amendment to provide for extending appeals in that way; but if the ultimate effect of his amendments were to lead, as I believe they could lead, to character and security cases becoming appealable, I think that that would be absolutely disastrous. There are good reasons why over the last century and a half we have in this country made the Home Secretary responsible for naturalisation cases. I ask your Lordships to hesitate long and seriously before agreeing to an amendment which would alter that arrangement.
Viscount Colville of Culross
My Lords, I must be very brief. May I first deal with the points raised by my noble friend Lord Campbell of Alloway? 320 I take the point that he makes—and he was supported by my noble friend Lord Renton—that first of all there have been changes in relation to the appealability of cases of entitlement under Amendment No. 143 and by means of the removal of the requirement for the Home Secretary to be satisfied. Secondly, I accept that the ouster clause, as it stands, is not satisfactory yet.
We have on the Report stage of the Bill a matter of principle. One may choose to divide the discretionary decisions that appear in my fourth subsection according to whatever subdivision one thinks fit if and when the ouster clause is put right so that matters more susceptible of going to the courts shall go to the courts and shall not be dealt with under this procedure.
I await the putting right of the ouster clause before I would be prepared to accept any amendment to my amendment which had that effect. If it was put right I would be only too happy to see that change made. But I must reiterate to the House, and take issue if there was any implication of this sort from either of my noble friends, that as the Bill is now drawn there is no question whatsoever of any of these cases going to the Judiciary—none whatsoever. Nor under my amendment would they go to the Judiciary. They would go to the same committee as has been able to function ever since 1948—which is a long time—and has been able to deal satisfactorily with these matters.
Now, to deal quickly with the points that my noble friend Lord Belstead made: first of all to take the last one, security. I do not understand why if this matter stands on its own rights as I believe it to do some danger that security might by future legislation—and it would need legislation—be introduced should lead your Lordships to vote against this amendment now. Let me just remind your Lordships that we have had appeals machinery under the immigration provisions ever since 1968—and that is 13 years—whereby in the cases where a would-be immigrant is judged by the Home Secretary to be non-conducive, as it is called—which is usually a security matter—those and those alone have been singled out as being not people to be appealed. That Act has now stood unchanged for 13 years. Nobody, so far as I know, has ever sought to introduce anything of the kind that my noble friend feared.
Then again he said that the intention might not be very easy to judge. The courts themselves are well used to dealing with intention in all sorts of circumstances—not least perhaps in the cases of domicile. There has never been any difficulty about dealing with this under judicial arrangements, why should there be under a committee of inquiry? There is the question of language. Yes, my Lords, it is a matter of opinion. What one wants is a second opinion. That is what this provision would provide. If the would-be applicant can satisfy the committee of inquiry, he will not have to wait for two years, as would otherwise be the case, before he can apply again.
I am grateful to my noble friend for not making this primarily a matter of resources. I have kept this within a narrow range—possibly too narrow a range—and within a practicable range. If this amendment is turned down, what is going to happen? We shall still have appeals. We shall have just as many appeals as we would have if this amendment was passed; but we would have appeals through Members of the two Houses, right honourable and honourable Members of 321 another place, and your Lordships would have to continue writing endless letters to the Home Secretary and to the Home Office about these cases. There will be appeals in exactly the same spirit as would be the machinery that I am setting up. There is no way of avoiding appeals. Appeals have always happened; appeals will always happen under this legislation. I am simply seeking to provide something which is not a matter of right, it is a matter of application. It does not provide a remedy of right; it provides a remedy which I think everybody in the House must see is ultimately in the hands of the Home Secretary.
My noble friend suggested that this might be a sham and that the Home Secretary would be unable to reverse the recommendations of the Committee. Why then do the Government put the identical machinery in the Bill itself for the purposes of the removal of citizenship? Is it to be a sham there? Certainly not! I would not suppose that my noble friend would support that idea for one moment. In which case why in the case of the application I have made should there be any suggestion of a sham?
I hope that my noble friend will not think it patronising of me, but I did not think that he made a convincing case in his speech. I am grateful to him for not putting it on economics, but when it gets down to the other matters I suggest to your Lordships that there is very little in it and I am afraid that I cannot see my way to withdrawing this amendment.
§ 7.26 p.m.
§ On Question, Whether the said amendment (No. 135) shall be agreed to?
§ Their Lordships divided: Contents, 70; Not-Contents, 79.322
|DIVISION NO. 4|
|Airedale, L.||Houghton of Sowerby, L.|
|Ampthill, L.||Hylton-Foster, B.|
|Ardwick, L.||Jeger, B.|
|Auckland, L.||John-Mackie, L.|
|Avebury, L.||Kinloss, Ly.|
|Aylestone, L.||Lauderdale, E.|
|Bacon, B.||Llewelyn-Davies of Hastoe, B. [Teller.]|
|Beswick, L.||Loudoun, C.|
|Birk, B.||Mackie of Benshie, L.|
|Bishopston, L.||Macleod of Borve, B.|
|Blease, L.||McNair, L.|
|Blyton, L.||Milner of Leeds, L.|
|Boston of Faversham, L.||Molloy, L.|
|Brockway, L.||Mountevans, L.|
|Brooks of Tremorfa, L.||Oram, L.|
|Chitnis, L.||Peart, L.|
|Collison, L.||Phillips, B.|
|Colville of Culross, V. [Teller.]||Pitt of Hampstead, L.|
|Colwyn, L.||Rochester, L.|
|Cooper of Stockton Heath, L.||Ross of Marnock, L.|
|Craigavon, V.||Sefton of Garston, L.|
|Craigmyle, L.||Shepherd, L.|
|Croft, L.||Simon, V.|
|Davies of Leek, L.||Stamp, L.|
|Davies of Penrhys, L.||Stewart of Alvechurch, B.|
|Elwyn-Jones, L.||Stewart of Fulham, L.|
|Elystan-Morgan, L.||Stone, L.|
|Fairfax of Cameron, L.||Strabolgi, L.|
|Geddes, L.||Tanlaw, L.|
|Hale, L.||Taylor of Mansfield, L.|
|Hampton, L.||Teviot, L.|
|Tordoff, L.||White, B.|
|Underhill, L.||Wilson of Radcliffe, L.|
|Wells-Pestell, L.||Winstanley, L.|
|Airey of Abingdon, B.||Mackintosh of Halifax, V.|
|Avon, E.||Mansfield, E.|
|Bathurst, E.||Marley, L.|
|Belstead, L.||Monson, L.|
|Brabazon of Tara, L.||Mottistone, L.|
|Brookeborough, V.||Mowbray and Stourton, L.|
|Brougham and Vaux, L.||Napier and Ettrick, L.|
|Buxton of Alsa, L.||Norfolk, D.|
|Campbell of Alloway, L.||Northchurch, B.|
|Campbell of Croy, L.||Nugent of Guildford, L.|
|Chelwood, L.||Onslow, E.|
|Cockfield, L.||Orkney, E.|
|Coleraine, L.||Plummer of St. Marylebone, L.|
|Cork and Orrery, E.|
|Cottesloe, L.||Portland, D.|
|Cowley, E.||Redesdale, L.|
|Cullen of Ashbourne, L.||Redmayne, L.|
|Davidson, V.||Renton, L.|
|De L'Isle, V.||Rochdale, V.|
|Denham, L.[Teller.]||St. Aldwyn, E.|
|Drumalbyn, L.||Sandys, L.[Teller.]|
|Eccles, V.||Savile, L.|
|Ellenborough, L.||Sharples, B.|
|Elton, L.||Skelmersdale, L.|
|Ferrers, E.||Stodart of Leaston, L.|
|Ferrier, L.||Strathclyde, L.|
|Fraser of Kilmorack, L.||Stuart of Findhorn, V.|
|Gridley, L.||Swansea, L.|
|Grimthorpe, L.||Swinton, E.|
|Harmar-Nicholls, L.||Thomas of Swynnerton, L.|
|Harvington, L.||Thorneycroft, L.|
|Hatherton, L.||Trefgarne, L.|
|Hives, L.||Trumpington, B.|
|Kemsley, V.||Tweedsmuir, L.|
|Kitchener, E.||Vaizey, L.|
|Lane-Fox, B.||Vaux of Harrowden, L.|
|Long, V.||Vivian, L.|
|Lyell, L.||Wakefield of Kendal, L.|
|McFadzean, L.||Westbury, L.|
|Mackay of Clashfern, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Lord Denham
My Lords, I think it would probably be for the convenience of the House if we were to adjourn for dinner at this stage. I therefore beg to move that further consideration on Report be adjourned until 8.20 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.35 to 8.20 p.m.]
§ Clause 41 [Regulations and Orders in Council]:
Lord Trefgarne moved Amendment No. 136:
Page 35, line 31, leave out ("or by any prescribed authority".
§ The noble Lord said: My Lords, on behalf of my noble friend Lord Belstead, I rise to move Amendment No. 136. This small change is offered as a result of the representations of my noble friend Lord Teviot, no less, who moved an amendment to delete paragraph (e) of what is now Clause 41(2) on 23rd July. His concern was that an "empire of civil servants", as my noble friend put it, would be set up to undertake time-consuming research into records of births, marriages and deaths held elsewhere than in the Home 323 Office. My noble friend was quite right to probe this point, because it revealed an area of misunderstanding which seems to have been caused by the words "any prescribed authority".
§ I should make it clear that the power to charge fees for searches has a very limited objective. People write to us claiming to be citizens on the grounds that they or their forebears were registered or naturalised. If they do not possess the necessary documentary proof, it means that Home Office records or overseas records, where a dependency is concerned, have to be searched. Sometimes a Home Office file may contain other relevant information; for example, dates and places of birth. We would not often wish to search other records, such as the Registrar General's records, since we would almost always take the view that this was for the applicant to arrange for himself.
§ The removal of the words "or by any prescribed authority", which crept in, I think, from an abundance of caution, should make it quite clear how essentially limited and unambitious our objectives are in this paragraph. We are not setting up in competition with professional genealogists, but are only seeking power to charge a fee for what we do already. My Lords, I beg to move.
§ Lord Teviot
My Lords, I thank the Government very much for putting this very small matter right in this Bill. Also, I suppose that I must declare an interest, because I research people's forebears, not that I was worried about the Government being a competitor. It is just that I was not sure how good they would be at it, especially without training. I must also point out that I did not myself discover this. It was discovered by a member of the public, who took the trouble to read and understand the Bill and wrote in. It is splendid when people do these things.
§ On Question, amendment agreed to.
§ 8.24 p.m.
§ Lord Avebury moved Amendment No. 137:
Page 35, line 39, at end insert—
("( ) Regulations under subsection (2) of this section shall provide for any fees imposed by those regulations to be waived in the case of any person who is in receipt of supplementary benefit or family income supplement.").
§ The noble Lord said: My Lords, I wonder whether it would be for the convenience of the House if we took with this amendment Amendment No. 139, which is in the name of the noble Lord, Lord Pitt, because his amendment also deals with the question of fees, although from a slightly different angle. If it would be to the convenience of your Lordships, we could discuss both together.
§ My amendment covers the person who is in receipt of supplementary benefit or family income supplement and who will therefore have great difficulty in paying any of the prescribed fees. That is a specific case. The noble Lord, Lord Pitt, has put down a more general amendment which allows the Secretary of State to prescribe cases where the charges that would otherwise fall to be made should be remitted in whole or in part. That is obviously a much more general amendment. It probably has greater merit as being more flexible than mine, though I had a particular case in mind when I tabled my own proposal.324
§ Some years ago when I was in another place, I was consulted by a young lady who had emigrated to Australia with her boy friend. While out there, she became pregnant and, at the same time, fell out with the boy friend. She returned to the United Kingdom on a Panamanian freighter and gave birth to the child while the ship was in the Bay of Biscay. So that when she landed in the United Kingdom, she went to the supplementary benefits people and they said "We cannot pay your benefits in respect of your child, because the child is a Panamanian citizen."
§ I then wrote to the Secretary of State for Health and Social Security and asked whether, in these circumstances, the DHSS could pay the fee for having the child naturalised and I was told that that was not possible; it was outwith the Act. But, at the same time, there was no provision, in the rules for the payment of fees to become naturalised, to allow those charges to be waived in the case of a person who was, as in the case of this girl, on supplementary benefit. So we were in a vicious circle and although, in the end, it was possible for the supplementary benefit to be paid in respect of the Panamanian child, so far as I know it remained a Panamanian citizen for some time after that. At any rate, she did not come back to my advice bureau with this same problem during the time that I was in another place.
§ We do not know in what circumstances the Secretary of State would impose charges, or at what level they would be determined. There is nothing in the Bill to give any indication of that. When I raised the particular case of an approach by a Member of either House to the Secretary of State on behalf of a constituent and I asked whether fees would be charged, I was told in reply by the noble Lord, Lord Belstead, that, clearly, the fees would be paid by the applicant and not by the Member of Parliament, and that it would not be possible entirely to waive the fees in such cases, because if that were done no applicant would go direct to the Home Office but would always go via his Member of Parliament or a convenient Peer.
§ Therefore, the situation is going to arise—and, of course, there will be many queries under this Bill when it becomes law—where people will go to their Members of Parliament or to one of your Lordships and ask for certain matters to be raised. Letters will pass to and from the Home Office and, in due course, a certificate of some kind will be required for which payment is needed and then the charge will have to be made to the correspondent or the applicant. But at this stage we do not know how that will be determined. Therefore, it could be of a very onerous nature, judging by the amounts that are paid in respect of registration and naturalisation at the moment.
§ I feel that in the particular case with which I am dealing in my amendment, of a person who is receiving either social security benefit or family income supplement, the Secretary of State would be justified in waiving those fees, and it is provided that he does so, quite irrespective of any agreement that your Lordships may reach on the question of waiving the fees generally, in accordance with the amendment of the noble Lord, Lord Pitt, which would be desirable in itself. My Lords, I beg to move.325
§ Lord Pitt of Hampstead
My Lords, I hope it will be convenient to the House if we deal with the two amendments together. I shall speak to No. 139 and formally move it at the right time. This question of fees is of the utmost importance. I hope your Lordships will take it very seriously. If noble Lords have been following the tenor of my amendments, they will appreciate that they have all been aimed at reducing the difficulties which will arise from the Bill. The question of fees is very important. At an earlier stage I tried to get your Lordships to amend the Bill so that somebody who is a citizen of the United Kingdom and Colonies, who suddenly finds that he is a citizen of somewhere else but who wants to continue to be a citizen of the United Kingdom and Colonies can continue to be such a citizen. Your Lordships rejected that amendment. It would have helped quite a lot, but it was not to be.
There is a great sense of grievance among the ethnic minorities about the consequences of the need to register as United Kingdom citizens, and its cost. I will give your Lordships an example which came to me only yesterday. It concerns a person who came here after 1973. As a consequence, he could not register—as I did. He had to become naturalised. That person had spent four years in the Army, including six months in Northern Ireland. When he was told that he had to pay £150 to become a citizen of a country which he had always regarded himself as a citizen of and which he was prepared to die for, he was quite shaken and quite resentful. That is why he came to me.
I give to your Lordships this example because it illustrates in a way that I could not otherwise do what the resentment is all about. Let us leave that example aside because the point I want to make is that this can create very serious difficulties for a family. On many occasions I have tried to get the House to accept the right of minors to register when they come of age because then they can cope with it themselves. I failed on all of those occasions. The truth of the matter is that if a family—say, a man, his wife and four children—want to register, if they have arrived in this country after 1973 it will cost them £900. And £900 to a working-class family with limited wages is something they cannot afford. Therefore, the point which the Minister keeps making about parents registering minors indicates that the Government have not understood the point. With the best will in the world parents still cannot register minors because they cannot afford the money. As for the talk about guardians in a local authority home registering children and paying £150, let us try to think of the world in which we actually live, not of the world we imagine we are living in.
The point of this amendment—I hope at long last I can get the Government to accept something—is to give to the Secretary of State the power to waive fees or part of the fees when it will create the sort of difficulties I am talking about—when, for example, a man with a large number of children wants to register the whole family, which he ought to do. Perhaps only the fee required for the father will be demanded; the rest will be waived. Or where a couple are earning such low wages that they obviously cannot possibly find £300, some of the fee should be waived. I hope also that there will be occasions when the whole of the 326 fee will be waived because of the financial positon of the people involved.
The point which the noble Lord, Lord Avebury, is making in his amendment is very pertinent. He has picked a limited group of people. I hope that at least the Government will accept that that group should be exempted from paying the fee. One needs to extend the exemption much further, however, because it is a genuinely difficult situation for people who in many instances are below, not above, average earnings. More often than not they are below average earnings. To ask those people to pay the sort of sums that are being demanded for what we call registration but which is really naturalisation is extremely unkind.
I hope the Government will find some way of showing compassion of some sort and that they will accept this amendment. All it does is to give to the Secretary of State the power to waive the whole or part of the fee. The Secretary of State does not necessarily have to waive the fee. All I am doing is giving him the power to waive it and all I am saying to your Lordships is that he needs to have the power to waive it, because real hardship can otherwise be created. I go back to the point I made earlier in another debate because it is relevant. People who were United Kingdom and Colonies citizens, who came here as such but then their country became independent and who suddenly are told that they are no longer United Kingdom and Colonies citizens, although they want to go on being United Kingdom and Colonies citizens, become angry when told that the only way their family can become such citizens is by paying £900. It is ridiculous.
I hope the Government will see the point and will be prepared to accept this simple amendment because it does no more than give to the Secretary of State the power to waive the fee in those conditions.
§ Baroness Birk
My Lords, I should like to support both amendments, although my name is attached to the amendment standing in the name of my noble friend Lord Pitt of Hampstead. I prefer his amendment because it is more embracing and wider than that moved by the noble Lord, Lord Avebury.
I do not consider that the charging of fees for obtaining citizenship is unreasonable, although in some countries—for example, Australia—there is no charge. In the United States there is a 25 dollar flat charge which is considerably less than what is charged now in this country. But I feel that it is unreasonable and wrong to charge a fee so high that people are deterred from applying to become citizens because they would suffer financial hardship by applying or because they cannot afford to apply. If this is so, it means that it is really a serious infringement of their civil liberties, because the test of becoming a citizen should not be whether you can afford to do so or not.
Because of the rumours over the year of impending changes in the British nationality law and because many of the residents here who do not have our citizenship belong to ethnic minorities which feel themselves particularly vulnerable to demands for removal from the country, applications for citizenship have increased enormously, so that the Home Office nationality department is now having to deal with 327 four times as many applications as it did five years ago, which is a vast increase. At the same time, as my noble friend Lord Pitt and the noble Lord, Lord Avebury, pointed out, the fee for naturalisation has now increased to £150. Two years ago it was £90, so this is not just an increase to keep in line with inflation but a very real increase.
Then, over the last few years—and particularly recently—we have seen unemployment increasing very sharply indeed, which affects the disposal of people's resources. More people are living on social security and people relying on family income supplement are now very considerable groups in our society. In addition, after working for many years, some people have suddenly found themselves out of work because the firm for which they worked has gone bankrupt. We are seeing a great increase in the number of bankruptcies, and the cuts in public as well as private expenditure mean that there have been a great many unwilling redundancies. Noble Lords who come from the Midlands or the North, or in fact, unfortunately, almost all over the country now, will have seen unemployment and poverty on the ground. I shall not enumerate the number of towns and cities which were prosperous a few years ago but where so many people are now out of work. Mortgage payments are up and are a tremendous drain on people, and also there is difficulty where there are large families.
For these reasons, I feel that the amendment moved by the noble Lord, Lord Avebury, which restricts itself to supplementary benefit or family income supplement, is not quite so flexible as the amendment tabled by the noble Lord, Lord Pitt, and by my colleagues and myself on this Front Bench, which would cover a person who cannot pay without hardship to himself or his family. This would take in the large family or the person who has large demands on his resources because of his family or his mortgage, housing and so on, without necessarily being in receipt of supplementary benefit.
If the Government reply is going to be to ask how you measure that, it has to be measured very often in other ways: in the domestic courts, so far as maintenance is concerned, when people have not paid a fine and are brought back to court, we then have to find out their income and their outgoings. I do not think there is any real problem about the practical way of ascertaining this. This may be a small point in this Bill, but I think it is an important one, because I shall just return to the basic principle that getting citizenship should not be based on one's ability to pay for it. If you can, well and good.
Finally, I would ask the Minister a specific question: I think there is a piece in the Financial Memorandum to the Bill which states that they are hoping to make the fees fit the cost of the administration of naturalisation. If so, can the Minister say whether there are plans to increase the fees from the present £150 and the £50 for the wife and £25 for the children? Are there plans to raise them beyond the present level and is there any specific plan that they should be raised by next April? I very much hope that the Minister will find it possible to support one or other of these amendments, or, if he is not happy with the drafting of 328 either of them, that he will accept the principle of what we are asking for and will bring back an amendment on Third Reading.
§ Lord Belstead
My Lords, two basic points arise from the amendment moved by the noble Lord, Lord Avebury. The first is whether this is an appropriate area to give relief to people who may not be able to afford to pay the fee for registration or for naturalisation, and the second whether the method of offering relief proposed by the noble Lord is a practical one.
To take the first point, the Government would not wish to deter applicants by setting fees at an impossible level. On the other hand, we cannot afford to provide a free service. The noble Lord said that he did not know at what level as a matter of policy the fees were being set. As the House knows, control over public expenditure is one of the Government's overriding priorities and in the nationality field this means that it must remain Government policy to try to recover as much as possible—and preferably all—of the costs of processing nationality applications. Having said that, I must tell the House that we are a very long way from achieving our objective. The percentage of our costs recovered through fees is nearer 30 per cent. than 100 per cent. So the percentage really is very small indeed.
The noble Baroness, Lady Birk, asked me a direct question about the intentions of the Government so far as fees were concerned, and I am afraid I have to reply that, in line with our policy, further increases in fees are inevitable. But there is also the point on this first amendment that assistance of the kind which the noble Lord is seeking to write into the Bill would almost certainly have to be subsidised by other applicants, unless of course there is the alternative that the income from fees would simply fail to go on meeting costs to an even greater extent than it does now, and I think it is not unreasonable for me to say that neither alternative would be particularly attractive.
With regard to the second basic point which I felt arose from the noble Lord's amendment—namely, the appropriateness of using this particular method to bring help—I think there is the difficulty that although the noble Lord (and I do not denigrate him for this at all) has chosen two specific ways in which to bring help there is undoubtedly the fact that were the fees once waived for those people, that would immediately prompt other people, who were perhaps equally deserving in many ways, to request similar treatment. I think this would lead almost inevitably to the flexibility which the noble Baroness, Lady Birk, was recommending to the House; in other words, before we knew where we were we should find that the reductions in fees would be at large.
This leads me to the second amendment, moved by the noble Lord, Lord Pitt. I have to say that, if I find difficulty with the method in Amendment No. 137, moved by the noble Lord, Lord Avebury, I find difficulty also with the lack of method in Amendment No. 139, because it occurs to me that many applicants would no doubt claim that full payment of the fee would cause hardship to themselves and their families—and probably with some reason. I think we should be clear as to what the facts are. I think that the noble Lord was speaking without notes in his hand so far as the figures are concerned and I hope he will not mind if 329 I say that in the case which he gave to the House, which the noble Lord said would cost £900 for a family of a mother, father and four children, my reading of it is that a husband arriving after 1973 would have to pay £150—and there I agree with the noble Lord—but his wife would pay £50 if she applied at the same time, and all the children would cost £25 if again the applications were made at the same time. Under those circumstances—and I admit I have put my own interpretation on the circumstances, although I have taken the same period of time as the noble Lord took—it would have been a total bill of £300, not £900.
I only say that to keep the matter in perspective. My point really on this second amendment is that assessment of the claims under Amendment No. 139 would, I think, undoubtedly involve sensitive inquiries into the applicant's financial position, and I think this would mean, to be absolutely blunt, means testing, which nobody likes; it would mean inquiries, it would mean further staff and extra expenditure, and before we knew where we were we should be back into the system of further costs which would have to be met by increased fees from other people, or again an increase in the gap between what you get from fees and what the system would cost.
My Lords, I know I have not been helpful, but I hope at least I have shown that we have tried to think about this. It is not, if I may say so, as easy as the two amendments would lead one to believe at first sight. I am sorry I cannot agree with noble Lords but on those grounds I cannot, and I would ask the noble Lords not to press the amendments.
§ Lord Avebury
My Lords, it is not going to be as easy for the applicants as would appear at first sight, either, for somebody who is in this position; even taking the noble Lord's figures, £300 may not be very much to him but it is a great deal of money for somebody who is on the dole, a great deal of money to somebody whose income has to be supplemented by family income supplement. Where is that person going to get £300? The Minister did not condescend to explain: he merely said that difficulties were created for the public purse. As he explained, only 30 per cent. of the cost of these applications is now recovered in fees, and he gave the noble Baroness, Lady Birk, the ominous reply that further increases are inevitable, without giving us any idea of how much the Government have in mind.
I think the least the Government could do on an occasion as serious as this would be to give an undertaking that fees would not rise by more than the average industrial earnings or more than the cost of living. Otherwise it is going to represent an increasing share of the small amount of money people have in their pockets, even people with jobs still, let alone those covered in my amendment who are out of work or depending on family income supplement. Frankly, I thought this was a callous answer.
On reflection, I believe that the wider solution proposed by the noble Lord, Lord Pitt, is preferable, and, therefore, although I do not in any way concede the Minister's argument, I beg leave to withdraw my amendment so that we can vote in favour of Lord Pitt's amendment.
§ Amendment, by leave, withdrawn.330
§ Lord Belstead moved Amendment No. 138:
Page 35, line 41, after ("and") insert—
("(a) regulations under subsection (1) may provide for the extension of any time-limit for the taking of oaths of allegiance; and
§ The noble Lord said: My Lords, this is a technical amendment designed to ensure flexibility in the operation of any regulations relating to the oath of allegiance. I beg to move.
§ On Question, amendment agreed to.
§ Lord Pitt of Hampstead moved Amendment No. 139:
Page 35, line 43, at end insert:
("or for their remission, wholly or partly, where the person liable for their payment cannot pay without hardship to himself or his family.").
§ The noble Lord said: My Lords, although I said I was going to move this amendment formally, l think I ought to answer what the Minister has said. For 13 years I sat on the Bench and every Saturday morning I used to sit on the Bench in Hampstead, and I used to tell my wile, "I am going to get blood out of a stone". It always involved people who could not pay their fines or would not pay their wives or would not pay for the support of their children. Of course we investigated their means. I find it extremely difficult to believe that the Government can say that they cannot agree to waive the fees of people who are in hardship because that is a very difficult thing to do. All you need to do is to assess their income and their expenditure. When you have decided that their income and expenditure are such that it affects them in a bad way, you probably say that they pay a shilling a week or something like that. What I am doing is giving the Minister the power to say that they do not pay at all or they pay a certain small amount. There is no problem involved in that. I am sorry I cannot accept the Government's explanation at all. I shall press this amendment to a Division. I beg to move.
§ Lord Belstead
My Lords, I must apologise to the noble Lord, Lord Pitt: when I was speaking to this amendment a moment ago and was replying to the point about the cost of the notional family which the noble Lord put to the House, I said that the total cost of registration for such a family would be £300. That is not the case; it would in fact be £225, because all four children come to £25 together. That is just to put the record straight. There is, of course, a fundamental difference between the two sides of the House on this amendment and I think there is nothing I can add to what I have already said.
§ 8.57 p.m.
§ On Question, Whether the said amendment (No. 139) shall be agreed to?
§ Their Lordships divided: Contents, 40, Not-Contents, 74.331
|DIVISION NO. 5|
|Airedale, L.||Birk, B.|
|Ardwick, L.||Bishopston, L. [Teller.]|
|Avebury, L. [Teller.]||Blease, L.|
|Aylestone, L.||Blyton, L.|
|Brockway, L.||Peart, L.|
|Brooks of Tremorfa, L.||Phillips, B.|
|Cledwyn of Penrhos, L.||Pitt of Hampstead, L.|
|Collison, L.||Rochester, Bp.|
|Davies of Leek, L.||Rochester, L.|
|Davies of Penrhys, L.||Ross of Marnock, L.|
|Elwyn-Jones, L.||Simon, V.|
|Elystan-Morgan, L.||Stewart, of Alvechurch, B.|
|Ewart-Biggs, B.||Stewart of Fulham, L.|
|Gifford, L.||Stone, L.|
|Hampton, L.||Tanlaw, L.|
|Houghton of Sowerby, L.||Taylor of Gryfe, L.|
|Jeger, B.||Tordoff, L.|
|Jenkins of Putney, L.||Underhill, L.|
|John-Mackie, L.||Wells-Pestell, L.|
|McNair, L.||Winstanley, L.|
|Airey of Abingdon, B.||Lyell, L.|
|Ampthill, L.||McFadzean, L.|
|Auckland, L.||Mackay of Clashfern, L.|
|Avon, E.||Mackintosh of Halifax, V.|
|Bathurst, E.||Macleod of Borve, B.|
|Belstead, L.||Mansfield, E.|
|Brougham and Vaux, L.||Marley, L.|
|Buxton of Alsa, L.||Mottistone, L.|
|Campbell of Alloway, L.||Norfolk, D.|
|Campbell of Croy, L.||Northchurch, B.|
|Chelwood, L.||Onslow, E.|
|Coleraine, L.||Portland, D.|
|Colville of Culross, V.||Redesdale, L.|
|Cork and Orrery, E.||Renton, L.|
|Cowley, E.||Rochdale, V.|
|Craigavon, V.||Sandys, L. [Teller.]|
|Crathorne, L.||Savile, L.|
|Croft, L.||Sharples, B.|
|Cullen of Ashbourne, L.||Skelmersdale, L.|
|De L'Isle, V.||Stamp, L.|
|Denham, L. [Teller.]||Stodard of Leaston, L.|
|Drumalbyn, L.||Strathcarron, L.|
|Elton, L.||Strathclyde, L.|
|Ferrers, E.||Swansea, L.|
|Fortescue, E.||Swinton, E.|
|Geddes, L.||Teviot, L.|
|Gridley, L.||Thomas of Swynnerton, L.|
|Hacking, L.||Thorneycroft, L.|
|Harvington, L.||Trefgarne, L.|
|Hatherton, L.||Trumpington, B.|
|Hives, L.||Tweeddale, M.|
|Kemsley, V.||Tweedsmuir, L.|
|Killearn, L.||Vaux of Harrowden, L.|
|Kinloss, Ly.||Vivian, L.|
|Kitchener, E.||Westbury, L.|
|Long, V.||Wilberforce, L.|
|Loudoun, C.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 42 [Registration and naturalisation: general provisions]:
§ 9.6 p.m.
Lord Belstead moved Amendment No. 140:
Page 37, line 1, after ("has") insert ("within the prescribed time").
§ The noble Lord said: My Lords, I beg to move Amendment No. 140. I think that it seems reasonable that anyone who has reached the stage where it has been agreed in principle that citizenship should be granted should complete the final stages as soon as possible. It should not be possible for the person concerned to bank the claim to citizenship indefinitely and to draw on it perhaps years later when it happens to suit. Therefore, the amendment which I am moving 332 makes a small but necessary clarification to Clause 42. I beg to move.
§ Baroness Birk
My Lords, I should like to ask the Minister a question. As the last amendment on waiving fees was lost, I should like to put the following situation to him. Supposing a person is genuinely intent on getting citizenship as quickly as possible but does not in fact have sufficient money? Would he be able either to put down a deposit or to get an extension of time? I am referring to a genuine case on financial grounds.
§ Lord Belstead
My Lords, I do not think that there is in the Bill a provision for an extension of the time to pay fees. If I find that I have got that wrong I shall certainly communicate with the noble Baroness.
§ On Question, amendment agreed to.
Viscount Colville of Culross moved Amendment No. 141:
After Clause 43 insert the following new clause:
§ ("Appeals against refusals of naturalisation.
§ .—(1) Where the Secretary of State refuses an application for naturalisation of a person under sections 5 or 18 on grounds of failure by that person to comply with paragraphs 1(a), (c) or (d) or 3 (other than the reference in paragraph 3(e) to paragraph 1(1)(b)) or, as the case may be, paragraphs 5(a), (c) or (d) or 7 (other than the reference in paragraph 7(e) to paragraphs 5(1)(b)) of Schedule 1, there may be made by or on behalf of that person and in the prescribed manner an application for an inquiry, and the Secretary of State shall refer the case to a committee of inquiry constituted in accordance with section 40(7).
§ (2) For the avoidance of doubt it is hereby declared that subsection (1) does not apply to any case where the Secretary of State has refused to exercise his discretion under paragraphs 2 or 4, or, as the case may be, 6 or 8 of Schedule 1 in respect of any person.
§ (3) Notwithstanding subsection (2), the Secretary of State may prescribe any of the provisions of this Act specified in subsection (4) as being a provision in respect of which any decision thereunder may be the subject of an application for an inquiry and subsection (1) shall accordingly apply to that provision.
§ (4) The provisions referred to in subsection (2) are—
- section 3(1) and (5);
- section 4(4) and (5);
- section 6(3) to (6) inclusive;
- section 7(2) and (3);
- section 12(4) and that subsection as applied by sections 24, 29 and 34;
- section 13(3) and that subsection as applied by section 24;
- section 17(1) and (5);
- section 20(2) and (3);
- section 27(1);
- section 28(2) and (3);
- section 32:
- Schedule 1, paragraphs 2, 4, 6 and 8;
- Schedule 2, paragraph 6.").
§ The noble Viscount said: My Lords, I beg formally to move this amendment in the expectation that your Lordships will instantly negative it without my noble friend having to say anything. If I do not do so it will not be printed in Hansard, and, in case members of the public should wish to read our proceedings, the debate on the earlier amendment would be incomprehensible if this amendment were not printed. I beg to move.
§ On Question, amendment negatived.333
§ 9.8 p.m.
Viscount Colville of Culross moved Amendment No. 142:
After Clause 43, insert the following new clause:
§ ("Appeals against decisions on registration as a matter of entitlement
§ .—(1) Where the Secretary of State refuses an application for any registration as a matter of entitlement under this Act, the applicant may appeal in accordance with the provisions of this section.
§ (2) Subject to Rules of Court an appeal under subsection (1) shall lie to the High Court or to the Court of competent jurisdiction for an order declaring the appellant's rights under this Act, and without prejudice to the generality of the foregoing the Court shall have power to review the determination of any question of fact on which the refusal was wholly or partly based.
§ (3) Her Majesty may make provision by Order in Council for defining what shall be the Court of competent jurisdiction for the purposes of subsection (2) in any of the Islands or any dependent territory, and for any matter consequential on such a definition; and may revoke or vary any such Order in Council.").
§ The noble Viscount said: My Lords, this, on the other hand, is a matter which requires some discussion. I should tell your Lordships that I drafted this new clause before I saw on the Marshalled List either Amendment No. 143 or the whole series of amendments that have appeared in the name of the Government in the course of this Bill leaving out the requirement that "the Secretary of State shall be satisfied", or words to that effect, in the various places where they occur.
§ This new clause relates to the category of decisions which I singled out as not being the subject matter of Amendment No. 141—that is, decisions on the question of entitlement. I do not think that there has been any dispute between the Government and those of your Lordships and Members of another place who have discussed this, that when it comes to a matter of a decision on one of the many items of entitlement which this Bill contains, an adverse decision by the Secretary of State should be able to be tested in the courts. It is not a matter of discretion; this is a matter of rights, and the courts have always been envisaged by the Government as being able to take account of these matters, to take them within the jurisdiction and to make decisions. To that end, I have nothing but welcome for Amendment No. 143, which comes next, because certainly that goes some way towards meeting this highly desirable aim, as indeed does the series of amendments about the Secretary of State being satisfied.
§ Nevertheless, the system of law whereby a matter such as this is now dealt with by the courts, has recently been very substantially changed, or at least it may have been. We discussed this before and your Lordships may remember that in Committee the noble Lord, Lord Gifford, and a number of other noble Lords discussed the way in which the new Order 53, which provides for judicial review by the divisional court, works in a case like this.
I think that there are two possible ways in which it might happen. To take an example so as to show, in tangible terms, how the matter might be presented, I would invite your Lordships to look at Clause 4 of the
Bill. It is only an example, but I think that it is quite a good one. Clause 4(1) says:
This section applies to any person who is a citizen of the British Dependent Terrorities, a British Overseas citizen, a British subject under this Act or a British protected person.
Subsection (2) then goes on to say:
A person to whom this section applies shall he entitled, on an application for his registration as a British citizen, to be registered as such a citizen if"—
and then one leaves out "the Secretary of State is satisfied"—
… the following requirements are satisfied in the case of that person, namely—
the four requirements then set out. Those four requirements are pure matters of fact. They are either Yes or No.
§ Let us suppose that under those provisions somebody applies for entitlement as of right and puts forward material to satisfy the four criteria set out in subsection (2), and for reasons, upon which I do not wish to speculate, the Secretary of State says that the application is rejected. The person concerned is then, by common accord, entitled to apply to the High Court, with leave, for judicial review of that decision, and there is one of two ways in which the courts could look at it and handle it.
§ My purpose in moving this amendment is to extract from my noble and learned friend, who I think will reply to the amendment this time, how he envisages it actually working. There will be affidavits, both by the applicant and no doubt by the Secretary of State, explaining respectively why they do and do not consider that the four criteria are complied with. In these circumstances will the divisional court go through those questions of fact on the affidavits, allowing, if' necessary—as they are entitled to do under Order 53(8)—cross-examination of the deponents so that they come to a judgment, which is based upon a new examination of the facts as set out in the affidavits? That is one thing they may do.
§ Alternatively, will they say "The Secretary of State has evidently looked with care at these facts; he has looked at the right facts; he has not taken into account anything that he should not have taken into account; he has taken into account all the four criteria that he should take into account; this is a decision which nobody could say no reasonable Secretary of State could come to; therefore we will not interfere". Those are two extremes.
§ It is, of course, possible that they will say that they will not interfere but make a very strong hint that they think that the decision on the facts has been less than satisfactory, and there are a number of other ways in which it might go. But with the comparative novelty of this procedure, although of course it is based on ancient traditional remedies, and with the importance and indeed extent of the decisions on entitlement with which this Bill is peppered, it is of greatest importance to know which way the Goverment think this is going to go.
§ The amendment that I have drafted is in fact a different approach to the matter. It may or may not be considered to be helpful but it is specifically designed to put the procedure not under Order 53 but under another order not very often used, Order 55, which 335 specifically, where the Act in question says so, enables the court on an appeal like this to go into questions of fact. I hope I have devised in subsection (3) a suitable provision which enables some court, I know not what, in the Falkland Islands, St. Helena, and so on, to come to a suitable decision as well, and the same of course applies to the islands, which is very important.
§ What I really want to know is how the Government anticipate this working. I will make no secret about it: I should like to have an answer on this not only in order to satisfy those of us who are interested in this subject in this House but in order that it should provide ammunition just in case by any chance anything should go wrong, and anything should happen to persuade the courts that they will not after all look at these matters upon the facts.
§ If the courts should decide that when they construe this legislation they are not after all entitled to deal with the facts, to allow the ascertainment of the truth in terms of a detailed examination of the facts, then if that is what the Government wished them to do and failed in the drafting of the Bill to achieve, the applicant would I anticipate come back to the Home Office and say, "We went through the procedure which evidently the Government intended we should go through by way of appeal. It has availed us nothing. Would you please look at the facts again because it is perfectly clear that you always intended in this legislation that the courts should deal with the facts. They have not. So now please will you all over again." I think this is important, particularly in view of the steps that the Government have taken already to try to get it right. I hope they do not think that I am unappreciative of those steps. Far from it. I am highly appreciative of them, they are most valuable, but I still do not think that it is entirely clear. I beg to move.
§ 9.17 p.m.
§ Lord Gifford
My Lords, noble Lords who are not members of the legal profession could be forgiven for wondering what the problem is that has been raised by the noble Viscount, Lord Colville. I hasten to say entirely in his support that there is a problem, and it is one that needs an answer. Of course, if language means what it ought to mean we should by now have made this clear. We have, after all, deleted from this Bill all reference to the phrase, "If the Secretary of State is satisfied" and so when someone is entitled to something under this Bill one would think, as the Government indeed have promised us, that the aggrieved person who has been refused and thinks he has been wrongly refused could go straight to court. I hope that is right, but I am afraid I cannot be sure and I cannot be confident that the judiciary, who are very relucant to review the exercise of administrative decision making, will see it the same way.
It is helpful to take some of the examples which will come up under these entitlement clauses. They are mainly concerned with residence in this country at particular times. Sometimes the period of residence being investigated will be a very long time ago. The new Clause 3, for example, gives an entitlement to the son or daughter of a citizen by descent to be registered if he, or she, has been resident in this country at any 336 time during their life for three years. Therefore, questions are going to be asked about the distant past, and there will undoubtedly be cases where the interviewing officers will take a view that the applicant is not being truthful. It will be a question of whether the applicant is a truthful person or not; that is exactly the sort of question which ought, of course, to come before a proper court of law with legal representation.
I anticipate that another class of case will be where the challenge to the applicant's story comes from the Home Office computer files of entries and exits, because although I stand to be corrected if I am wrong, I am sure that this will be one of the ways of verifying whether someone has been resident in this country during the periods they say; whether the appropriate entries and exits are noted in their file. Again, the Home Office may rely on their computer and the applicant may wish to challenge it.
In a related field of immigration the courts were told that where immigration officers are making decisions of this kind the court itself will not go into the facts in order to review whether the immigration officer is right or wrong. That has been established in as high a place as the House of Lords, in the case of Zamir, where the House of Lords drew attention to the fact that there was no reference in the relevant legislation to the need for the Secretary of State to be satisfied. Even though there was no such reference the courts refused to go into the merits of the case and exercise, as the noble Viscount, Lord Colville of Culross, said, this simple safety net of overseeing.
A further difficulty is that, however much the noble Lord, Lord Belstead, may assure us that the Government think that the Bill now gives a clear right to go to the courts, the courts by some rule which many lay people and lawyers find impossible to understand will not look at Hansard in order to see what Parliament or your Lordships' House intended when it passed this or that amendment or piece of legislation. Hansard is a closed book in the courts and, therefore, one could have the absurd situation whereby all of us were intending one thing and the courts were declaring that we intended another thing. Therefore, I would wish to be sure. I wholeheartedly support the intention and the terms of the amendment proposed by the noble Viscount, Lord Colville of Culross, and I look forward with great interest to hearing the Minister's reply.
§ Lord Elystan-Morgan
My Lords, I rise to express very briefly the support of those of us on these Benches for the efforts which have been made by the noble Viscount, Lord Colville of Culross, in moving this probing amendment. It is vitally necessary, where it is an entitlement case, and the subject wishes to challenge the decision of authority, that the subject should be reasonably placed to get his case off the ground. The lingering fear that some of us have is that, in cases where the Secretary of State has come to a firm decision but has given no reason whatsoever beyond the publication of the bold decision, there will still be difficulties. If the Minister can remove those fears from our minds then we would indeed be extremely happy.
Not only is it necessary for the subject to be in a position to mount his case in that way but it is also 337 necessary that he should be able to support that case with all the relevant documentary evidence there is. Therefore, we would also welcome an assurance from the Minister that it will be possible for the appellant to issue such a subpoena as may be necessary to ensure the production of all the relevant papers and witnesses.
One other matter that has not been mentioned is the question of what financial support, if any, such an appellant would have. That, of course, can be in practice as effective a barrier as the very absence of any appeal machinery at all. One remembers very well the words Mr. Justice Darling uttered over half a century ago, when he said, "The courts of law of this country are open to everyone—but so is the Ritz Hotel".
§ Lord Campbell of Alloway
My Lords, I too wish to express indebtedness to my noble friend Lord Colville for having raised the amendment. However, if it were pressed to a Division, I would urge the House not to support it. My noble friend says the purpose of moving it is to see how it works and that he seeks an assurance from the Minister as to the way in which the courts will apply and extend the provisions of judicial review. He may well ask and your Lordships may well wonder, but the Minister of State constitutionally is not competent to give that assurance; he cannot bind the Judiciary as to how they will apply and extend judicial review. As the noble Lord, Lord Gifford, rightly says, there lies the nub of the problem. There is a problem, but the Minister of State cannot deal with it here. What some of us lawyers think we need is an administrative court where these matters, be they of discretion or entitlement, may be wholly reviewed on a full rehearing. But it is far too great a step, I suggest, to seek to use this Bill as a vehicle for the general legal reform of public administrative law. For those reasons, I urge the House that, if pressed to a Division, the amendment be rejected.
§ Lord Avebury
My Lords, while this may not be a Bill to be used as a vehicle for general judicial reform, it is certainly a vehicle for the reform of one particular case which the noble Viscount, Lord Colville, outlined and which I wish to pursue. It seems to me that the case of Zamir is of vital importance and I am glad the noble Viscount raised it, bearing in mind that the example of Clause 4, to which reference has been made, brings the issue immediately to the forefront of your Lordships' deliberations.
There could be a person who applied under subsection (2) to be registered as a British citizen and he could be entitled to be so registered if he satisfied the criteria laid down in sub-paragraphs (a) to (d). Suppose that during the course of the application being considered the applicant is arrested as an illegal entrant and, because of the case of Zamir, he is unable to explore the circumstances in which he entered the United Kingdom so far as the facts were concerned. I quote again the case of the Chinese cook—that case, which I quoted previously, would seem to apply here—who could not bring before the court the facts of his employment when he was working in a restaurant in Hong Kong; he could not produce evidence to show that he had in fact been employed as a cook for all the 338 time and not as a waiter for the first year. They would be matters outside the jurisdiction of the court because all the court would have to consider was whether the Secretary of State could reasonably have come to the decision he had, and obviously they would so decide.
Meanwhile, while this person's application to be registered as a British citizen is being considered and he would like to go to the court against the refusal of the Secretary of State to grant him his application, he is removed from this country as an illegal entrant; then, of course, he is no longer in a position to appear before the court in respect of his entitlement. Thus, he would be in the absurd position that, following Zamir, he could not go to the court in one respect, but he could if the interpretation which the noble Viscount has advanced was correct; then he could go to the court and explore the facts in regard to his application for registration. I suggest therefore that it would be an absurd contradiction between the law of immigration on the one hand and the law of nationality, which we are now considering, on the other. So whether or not this particular amendment is accepted, I think it urgent that we bring the two into line before the Bill leaves us.
§ 9.30 p.m.
§ Lord Mackay of Clashfern
My Lords, as has been said, this is a matter to which we have given much consideration since the Bill was in Committee, and the amendments which we have proposed, most of which I have had the honour of moving, to remove from the Bill any reference to the Secretary of State's satisfaction are intended to make it as clear as the words of the Bill can make it that what we have in mind is entitlement provided the circumstances are met. There is the amendment to be moved in a little while, to which my noble friend Lord Colville of Culross referred, which makes it clear that the later provisions of the Bill are not intended to cut down any remedy in this class of case which would otherwise be available.
The discussions that have taken place in the course of the present debate have naturally been concerned with the procedure of the Supreme Court of England and Wales, and at the outset I most certainly must make it plain that my knowledge of the procedures of these courts is not anything as great as that of other noble Lords who have taken part in the debate, though in your Lordships' House sitting judicially I had the opportunity of discussing the recent alterations in the judical review procedure, in reference to one requirement of them. Therefore I had to familiarise myself at least to some extent with the intricacies of these rules.
I think it clear, as my noble friend made clear, that the Order 53 procedure allows for cross-examination and it also allows for discovery of documents once leave has been granted. The most recent alterations have included in the scope of judicial review the remedy of declaration of rights, and that may be of importance. I think it important to notice that over the years difficulty had been caused to litigants by finding that when they went for one remedy they were told that another was appropriate, and when they went for the other they were apt to be told that it was the first one, though not of course in the same case. I am thinking of 339 different cases where remedies are closely related. The amendments which were made to Order 53 by the Rules Council and which are now incorporated in the Supreme Court Act, which was recently passed, in effect counter that type of difficulty and bring together the possibility of these remedies which otherwise might have to be sought in different proceedings. Therefore, it is extremely important in the interests of adequate and effective procedure not to have too many remedies. To have too diverse a series of remedies is a disadvantage which the courts have seen and have by the amendments to which I have referred drawn back from.
As I have said, in the present Bill we have removed references in the entitlement cases to "the Secretary of State's satisfaction" and in the case of the most hotly contested area we have very considerably simplified the tests, so that they have become tests of simple matters of fact. If I may take up the example that the noble Lord, Lord Elystan-Morgan, mentioned, though it is dangerous to forecast, I would say I cannot believe that if an applicant came forward in an Order 53 application with an affidavit stating that he had satisfied, say, all the four conditions of Clause 4, the Secretary of State could simply put in an affidavit to say that for reasons which seemed good to him, but which he was not prepared to disclose, he did not accept any of these. I think that those of your Lordships who have experience of the way in which the Divisional Court works would agree with me that that would be most unlikely to be a sufficient answer, and if the only evidence which was available on the facts was the evidence of the applicant to the effect that he had in fact satisfied the test then his application would be successful.
So far as I can see, the difficulty arises from the approach which has been adopted in such cases as Zamir; but I think it is fair to say that where the circumstances that are required to be satisfied as tests for entitlement are as simple as they now are in this Bill, it is difficult to see much scope for a difference between saying that the facts are properly or reasonably determined by the Secretary of State and the reaching of a view on these facts by the court itself. But I would gratefully acknowledge the help I have received from my noble friend Lord Campbell of Alloway. I do not think it would be right for me to attempt to forecast what the court would do, but I do say that so far as the provisions of this Bill are concerned the words "granting the entitlement" are as clear as we can make them—and I think the noble Lord, Lord Gifford, really said that in the course of his speech, also, so to that extent we are agreed.
The judicial review procedure, then, as I said, now incorporates the possibility of a declaration of rights. It is quite obvious that it is a developing procedure. Exactly in what way it will develop, how far it will be developed, and so on, I think is not a matter that I can forecast, but I think it is reasonably clear that it is developing.
Also relevant to this consideration of the procedural rules in England and Wales is Order 15, rule 16, which is concerned with a declaratory judgment, which 340 amounts to a full court action with witness evidence on both sides, where relevant, the court forming its own conclusion as to the facts. Under this provision it is possible that the court could consider the context of the statutory provision giving rise to the entitlement claim and the particular issues of fact which were raised. Should it decide that the issues are appropriate for it to determine, there is no doubt that it could make a declaration of right which would be treated as binding on the Secretary of State. The next amendment, which has already been referred to and which we are proposing to Clause 44, concerning the removal of the Secretary of State's satisfaction from the various clauses, makes it easier, we would suggest, for the applicant to argue that the court has jurisdiction under that order in a suitable case.
I can see that it is possible that the court might take the view that these remedies do not amount to an appeal in the ordinary sense. They might not be prepared to substitute their own view of the facts for that of the Secretary of State; they might be content to look at the Secretary of State's decision and come to the view that it was reasonable and was arrived at in a proper manner. It is interesting, I think, to see that my noble friend, in the amendment which he has proposed, has in fact suggested that the court's power should be a power to review the determination of any matter of fact. I think there is at least a possibility that the court might regard that as simply the same kind of task as they have under the present judicial review procedure. Indeed, I think that these words are not very different from the words that the noble and learned Lord, Lord Wilberforce, used in the Zamir case.
So the result of all this, I would respectfully suggest to your Lordships, is that this Bill goes as far as it can to make clear entitlement on the basis of fairly simple sets of fact; and satisfactory remedies, we would suggest, are available on the lines that I have described. Accordingly, I would suggest to your Lordships that the amendment which has been proposed in a very reasonable spirit by my noble friend Lord Colville should not be passed into the Bill.
This amendment will make a special rule for this type of case, and that is quite contrary to the kind of procedural improvement which is present in the new Order 53 procedure. It is easy to envisage cases in which entitlement to registration and other entitlement would arise on much the same facts—for example, under Clause 1. Under Clause 1(1), you could have a straightforward entitlement; under Clause 1(3), an entitlement to registration and, under Clause 1(4), that possibility also. It may be helpful to your Lordships to know the experience of the Home Office on this matter. I think that their experience has been that there has been little need for litigation in nationality matters and even in immigration matters. The courts have not been slow to indicate if they feel that the Secretary of State has probably reached the wrong answer and to suggest that the matter should be looked at again.
So far as nationality claims are concerned, these are extremely rare but there are some cases. For example, Miss Astrid Proll applied to the court for an order of 341 mandamus to the Home Secretary to register her, and she secured a full hearing of her case. There is also the recent case of Mr. Charalambous, who applied to the court of for an order of mandamus to the Home Secretary to register him under Section 4 of the Cyprus Act, and he had a full hearing. Neither of these succeeded, but for reasons that their application was not, in the view of the court, well based. I hope that, in the light of these explanations, your Lordships will feel that we have gone as far as it is reasonable to go to deal with this matter, and that my noble friend will have that feeling also and will feel able to withdraw his amendment.
Viscount Colville of Culross
My Lords, I want first to thank those of your Lordships who have been so kind as to support me and who have adduced a number of weighty arguments in favour of having this matter clarified. If that does not entirely include my noble friend Lord Campbell of Alloway, may I say to him that I had no intention of trying to introduce a general reform of the entire system of the courts in Great Britain under the guise of this amendment. Nor did I suppose for a moment that anything that my noble and learned friend Lord Mackay of Clashfern would say would have the smallest influence on the way in which the Divisional Court or Court of Appeal or your Lordships sitting judicially would come to their judicial decisions. As I plainly said, I wanted to know what was the Home Office attitude about this.
In that respect, I do not think I could ask for a more plain and well spelled out answer than that to which we have listened. It is quite clear that my noble and learned friend anticipates that a person shall be entitled—I think I have the words right—if the requirements are satisfied; and that is the end of it. That is what the Home Office expects to be the results of its drafting. I have to say that I cannot for the life of me understand why it is impossible to make it clear in the Bill that that is what Parliament intended rather than leave it as a matter of interpretation, which is the way in which it is being done. But so far as we can go I think we have extracted from the Front Bench—and I am grateful to them for it—a completely clear explanation of what they think they have achieved. I hope they are right and, if they are not, the remedy will come back into the political arena and we shall all know what at least it was intended to achieve. I have achieved what I wanted, which is a greater clarification of this. I am grateful to my noble and learned friend and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 44 [Decisions involving exercise of discretion]:
§ Lord Mackay of Clashfern moved Amendment No. 143:
Page 38, line 14, at end insert
("(3) Nothing in this section affects the jurisdiction of any court to entertain proceedings of any description concerning the rights of any person under any provision of this Act.").
§ The noble and learned Lord said: My Lords, this 342 amendment has already been referred to. Its intention is to clarify the wording of the clause. Clause 44 is concerned only with decisions which are at the discretion of the Secretary of State, or the Governor, or the Lieutenant Governor. Thus the embargo on the giving of reasons or on access to the courts only applies to discretionary cases. Although it must, I think, be a valid implication that the embargo does not apply to entitlement cases, it has been suggested that the clarity of the clause would he helped if we put this in more positive terms. Accordingly, we are very pleased to do so. I beg to move.
§ On Question, amendment agreed to.
§ 9.46 p.m.
Lord Avebury moved Amendment No. 144:
After Clause 48, insert the following new clause:
§ ("Adopted Children.
§ . A person who is adopted by means of an overseas adoption within the meaning of Section 4(3) of the Adoption Act 1968 shall be treated for the purposes of this Act as if he were the natural born child of the adopter.").
§ The noble Lord said: My Lords, when the question of adoptions overseas was discussed in Committee on 7th July (at col. 685 of Hansard) the noble Lord, Lord Trefgarne, speaking for the Government, explained that it was originally envisaged in the Adoption Act 1968 that recognition of overseas adoptions would extend to the question of nationality. But this was not done for reasons that he then gave. I considered very carefully what the noble Lord, Lord Trefgarne, said and I think there were some valid points in his argument. I sought to meet them by tabling a somewhat modified amendment which is now before your Lordships.
§ I am referring specifically here to adoptions that are carried out overseas within the meaning of Section 4(3) of the Adoption Act. I am suggesting that for the purposes of this Bill any child adopted by means of overseas adoption shall be treated as if he were the natural born child of the adopter. "Section 4(3) of the Adoption Act 1968" means a description such as the Secretary of State may by order specify. There have been two orders which I do not think I need go into in detail. This is a recognised procedure which has been in action for some years past.
§ The first objection that the noble Lord, Lord Trefgarne, made to the original proposals that I advanced was that it would involve a considerable immigration commitment. I wonder whether the noble Lord who is to reply to this amendment could say how many overseas adoptions there were in 1978 or 1979. It would also be very interesting, in view of Lord Trefgarne's assertion that we would be dealing with a considerable immigration commitment, if we could know roughly what the order of magnitude of overseas adoptions were in 1979 and 1980 respectively. We would need to know—in order to evaluate this claim of the noble Lord, Lord Trefgarne—how many of those children who were adopted overseas under the Adoption Act 1968 were subsequently admitted to the United Kingdom under that provision or rule which already allows them to enter. That is paragraph 46 of the Immigration Rules which are now in force.343
§ After detailing the requirements that have to be satisfied for a child to be admitted, the rules go on to say that "parent" also includes an adoptive parent. It is only where there has been a genuine transfer of parental responsibility on the ground of the original parent's inability to care for the child and the adoption is not one of convenience arranged to facilitate the child's admission. So, providing those criteria are satisfied, a child adopted overseas is now eligible to be admitted to the United Kingdom as if he were the natural born child of that parent. So we are not looking at the whole of the number of children adopted overseas; if we are talking about the additional immigration commitment, we are only looking at the number adopted overseas who are not already eligible under paragraph 46 of the rules.
§ I have made some inquiries of my own about the numbers. I asked the Association of British Adoption and Fostering Agencies, and they have not the faintest idea how many there are, but they referred to me the International Social Services. The person I spoke to there said: "I do not know how you would find this out. I would not think it is 100". So that is the "substantial immigration commitment" mentioned by the noble Lord, Lord Trefgarne.
§ If I may just deal with the kind of application we might be looking at here, I would refer your Lordships to a booklet published by the Association of British Adoption and Fostering Agencies, entitled Inter-country Adoption. Certain examples are given there of what we have in mind. A Cornish family recently returned from a four-year stay in South Africa, where they adopted a child, and they telephoned the agency to find out whether the adoption was legally valid in the United Kingdom or whether they should apply for adoption through a British court. There is a childless Cypriot couple who are resident in London and planning a visit home and who want to adopt a child from their home village. There is a soldier serving in the British Army of the Rhine who has just married a German divorcee with two children whom he wants to adopt. There is an Asian family now living in Birmingham who hope to bring to England and adopt the fourth son of the husband's cousin still living in Pakistan.
§ These are the kinds of case we are looking at, and the association which I consulted, the British Agencies for Adoption and Fostering, do support an amendment of this kind. They say they would welcome any change which removed existing anomalies and ensured that a child adopted overseas by a United Kingdom citizen would have the same right to nationality as a child born to them. They say that such a change could surely be made in respect of children adopted by United Kingdom nationals who are temporarily or permanently resident in one of the listed countries whose adoption orders we recognise.
§ If I may just interpolate here, we are not talking about all the countries of the world but only those which are signatories of the convention and which have well-recognised procedures for adoption in their own law. For example, we are not talking about countries such as India, Pakistan and Vietnam, where 344 I understand there are no direct legal equivalents to adoption as we have it in our law. So, if one is thinking of additional immigration commitments, they would not be there from those particular countries where one might imagine that, if there were possibilities for adoption, they would be taken up by people in this country because of the association that many immigrants have with those countries of their origin.
§ The second argument put forward by the Minister, if I may say so, diametrically contradicted the first one. He argued that children who were adopted in this way and who would become British citizens would have the right to transmit that citizenship to their own descendants even if the connection they have with this country was very limited. The answer to that criticism is that adopted children would have exactly the same rights in this respect as natural-born children: no more and no less. But the Government cannot have it both ways. If the children we are talking about do create a substantial new immigration commitment, obviously they would acquire a tie or connection with the United Kingdom. If, on the other hand, as the noble Lord suggested, they might not even bother to come here, then their connection with the United Kingdom is a very slight one and they would not create any additional immigration commitment at all.
§ I think I have overcome the third objection that was mentioned then to the amendments I moved in Committee: that was that anomalies would be created because, as I have mentioned, there would be no difference between the adopted child and the natural-born child in the same circumstances. So in summary this is a very modest amendment. So far as I have been able to ascertain, it would affect a very small number of people, but it would lead to a situation which would be welcomed by the agencies responsible for inter-country adoption. It would be welcomed by the small number of families whose situation I have described by means of example. It would enable them to bring the children here and to have them registered as if they were natural born children, and to be brought up as British citizens in the country where they will spend the rest of their lives. My Lords, I beg to move.
§ 9.55 p.m.
§ Baroness Birk
My Lords, I rise to support this amendment, which is also supported by my noble friends. I find the present position very worrying, because one has to look at this against the background of the existing rules and the Immigration Act 1971. The position seems to be that a child adopted in the United Kingdom is admitted to this country if it is the dependant of a parent who qualifies for entry. But if a child has been adopted outside the United Kingdom, even if it has been adopted by a person who is a full citizen of the country, the child has no right of entry. It may be admitted, but it has no right.
The noble Lord, Lord Avebury, went into very clear and fine detail in answering some of the objections that were made in Committee. Under this amendment, the clause will not apply to any overseas adoption, but 345 only to adoptions in countries whose procedures have been specifically approved under our 1968 Adoption Act, which means that they will be subject to court procedure. Therefore, it seems to me that these people would be on exactly the same basis as those looking after their natural born children. The catch is that, if an adoptive parent is denied the right to bring in his or her child because the adoption took place overseas, the adoption cannot then take place in the United Kingdom unless the child can come to the United Kingdom in the first place, so that we have a very inhuman Catch 22 situation here. There really is a manifest injustice and a legal unkindness in the law at the moment.
We have discussed the case of the British parent working abroad, and during the debates on the Bill concern has been expressed about them. If such a person adopts a child, looks after it as one of his family in exactly the same way as his natural born child or children, and then comes back to the United Kingdom because his job requires him to do so, the child is barred from entry under the immigration law. That is a very unhappy position. I hope that the Government will not again raise the point about enormous numbers, because, as the noble Lord, Lord Avebury, pointed out, nobody knows the numbers. Furthermore, this will have to be done by means of a proper adoption, whereby the adoptive parent has to undertake through the court procedure to look after, care for and support the child, which is not a very easy undertaking.
It is not just a case of gathering up children and transporting them. One has to go through this machinery and people will not do that unless they really intend to bring up a child and look after it properly. At this time of night, at the end of a rather dreary day when all the amendments have been turned down, I hope that the Government will accept what the noble Lord, Lord Avebury, described as his modest amendment and inject a little more humanity into this Bill.
§ Lord Belstead
My Lords, the noble Lord, Lord Avebury, asked me for figures of overseas adoptions, endeavouring to prove thereby that the potential immigration commitment would be very small. On the existing figures, which I do not have, I do not doubt that the noble Lord would be right. But the basis of the reply of my noble friend Lord Trefgarne at the previous stage of the Bill was that we believe that an amendment of this kind—and I accept that the noble Lord, Lord Avebury, has changed the terms of the amendment—would be liable to exploitation, and therefore would change the situation. It could be used by people seeking to evade immigration control on the entry of children, and could lead to the entry of adopted children who did not have the same status as a natural born child in the eyes of their adoptive parents, yet who would have acquired our citizenship on that basis. I meet absolutely squarely the point which has been made by both the noble Lord, Lord Avebury, and the noble Baroness, Lady Birk, that the authorities of the countries concerned would do their best to see that an adoption is a proper one. 346 But their surveillance is inevitably limited in these matters. Anyway, it is not part of their business to see whether our immigration control is being evaded in this way.
The noble Baroness, Lady Birk, mentioned that there was no right of entry for children adopted overseas. That is right, but under Clause 3(1) the Home Secretary would have broad powers to register minors as British citizens. There is no doubt that in correct cases of adoption those powers would be used. It would also be open, as at present, for a person to bring a child to this country for adoption by court order in this country. A child so adopted by a British citizen would of course be a British citizen under Clause 1(5), which we have specifically provided for at the beginning of the Bill. It is also possible for a child adopted abroad to be admitted under the Immigration Rules to be with adoptive parents settled here. That is an immigration matter, not a nationality matter. However, we envisage that those arrangements would continue.
These are various ways by which a child from abroad whom somebody from this country wishes to adopt will be able to acquire citizenship, or at least to settle here. These arrangements do work satisfactorily at present. The difficulty is—I do not say this with any to the noble Lord—that there is an in-built defect in the way the noble Lord, Lord Avebury, is trying to go about this, in that it is almost bound to be an invitation to those of to avoid immigration control so far as bringing children into this country is concerned. I do not think that that is wise. It is on those grounds that I would ask the noble Lord not to press his amendment.
§ Lord Avebury
My Lords, I am not at all clear what sort of a fantasy world the Minister is living in if he thinks that there are people in this country who are going to comb the world for children so that they can bring them here for some reason of spite to the noble Lord, Lord Belstead, or the Home Office—to flout the immigration laws by bringing in floods of adopted children. Such an hypothesis is utterly absurd. Everybody on the Front Bench is laughing, except the noble Lord, Lord Belstead. This proves that even the noble Lord, Lord Trefgarne, thinks that my imagery is amusing.
To think that the legal systems of countries such as Austria, Finland, Greece, Israel and Luxembourg, to name but a few which are included in the recognised convention adoption territories are so lax that they will allow people from the United Kingdom to go there and kidnap babies for the purpose of annoying the noble Lord, Lord Belstead, and the Home Office and flouting the immigration law is utterly absurd. I really must insist upon testing the feeling of the House.
§ 10.3 p.m.
§ On Question, Whether the said amendment (No. 144) shall be agreed to?
§ Their Lordships divided: Contents, 21; Not-Contents, 65.348
|DIVISION NO. 6|
|Airedale, L.||Llewelyn-Davies of Hastoe, B.|
|Avebury, L. [Teller.]|
|Birk, B.||Pitt of Hampstead, L.|
|Bishopston, L.||Rochester, L.|
|Blease, L.||Simon, V.|
|Collison, L.||Stone, L.|
|Davies of Leek, L.||Tanlaw, L. [Teller.]|
|Elystan-Morgan, L.||Tordoff, L.|
|Ewart-Biggs, B.||Underhill, L.|
|Gifford, L.||Wells-Pestell, L.|
|John-Mackie, L.||Winstanley, L.|
|Airey of Abingdon, B.||Coleraine, L.|
|Ampthill, L.||Colville of Culross, V.|
|Avon, E.||Cork and Orrery, E.|
|Bathurst, E.||Cowley, E.|
|Belstead, L.||Craigavon, V.|
|Broadbridge, L.||Craigmyle, L.|
|Brougham and Vaux, L.||Crathorne, L.|
|Buxton of Alsa, L.||Croft, L.|
|Campbell of Alloway, L.||Cullen of Ashbourne, L.|
|Chelwood, L.||De L'Isle, V.|
|Denham, L. [Teller.]||Norfolk, D,|
|Drumalbyn, L.||Onslow, E.|
|Elton, L.||Pender, L.|
|Ferrers, E.||Portland, D.|
|Fortescue, E.||Redesdale, L.|
|Geddes, L.||Renton, L.|
|Hacking, L.||Rochdale, V.|
|Harvington, L.||Sandys, L. [Teller.]|
|Hatherton, L.||Savile, L.|
|Hives, L.||Sharples, B.|
|Kemsley, V.||Skelmersdale, L.|
|Keyes, L.||Stodart of Leaston, L.|
|Kitchener, E.||Strathcarron, L.|
|Lauderdale, E.||Swansea, L.|
|Long, V.||Swinton, E.|
|Lyell, L.||Thomas of Swynnerton, L.|
|McFadzean, L.||Trefgarne, L.|
|Mackay of Clashfern, L.||Trumpington, B.|
|Mackintosh of Halifax, V.||Tweedsmuir, L.|
|Mansfield, E.||Vivian, L.|
|Marley, L.||Westbury, L.|
|Monk Bretton, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.349
§ Clause 50 [Interpretation]:
§ 10.11 p.m.
Lord Skelmersdale moved Amendment No. 145:
Page 42, line 1, leave out ("colony or associated state") and insert ("territory").
§ The noble Lord said: My Lords, in moving this amendment I would also, with permission, speak to Amendments Nos. 151, 152 and 153. Schedule 6, which lists our remaining dependent territories, is currently divided into colonies and associated states. Once Antigua is removed, as it should be by a later amendment, only one associated state will be left. The distinction between an associated state and a colony is, of course, not one which has any relevance in the nationality field and it seems to us simpler to have a single list, without subdivisions, of all the dependent territories. The references to associated states or colonies in Clause 50 are, therefore, all changed by these amendments into references to "territories". Similar changes are to be suggested in Schedule 6 itself in later amendments. This seems a great improvement, since otherwise people may suspect implications which do not exist in the subdivision of Schedule 6 into colonies and one associated state. I beg to move the amendment.
§ On Question, amendment agreed to.
§ Lord Elystan-Morgan moved Amendment No. 146:
Page 42, line 32, at end insert—
(""ordinarily resident" shall be construed in accordance with subsection (1A)").
The noble Lord said: My Lords, I wonder whether it would be for the convenience of the House if I spoke to Amendment No. 147 together with this amendment; both are in fact inseparable one from the other. This, in my view, is one of the most necessary amendments to the Bill, in that it seeks to deal with an area of this piece of legislation that is in a wholly unsatisfactory state at the moment. It has been recognised by the Government that the uncertainty surrounding the meaning of the phrase "ordinarily resident" is such as to give rise to a very unsatisfactory state of affairs. At present the Home Office can only state that the term—and I quote—
is a matter of mixed law and fact which has not been interpreted by the courts in a nationality context".
Those were the words of the noble Lord, Lord Belstead, on 28th July at Committee stage.
It is for this reason that the residence requirement for naturalisation in Schedule 1 is defined for the future in terms of physical presence and a maximum period of absence. Replying to an amendment moved by Lord Pitt during Committee stage to define the phrase "ordinarily resident" the noble Lord, Lord Belstead, said:
If it were possible to produce a short, but above all comprehensive, definition of 'ordinarily resident', he may be assured that the Government would be very ready to accept it."—[Official Report, 28/7/81; col. 727.]
The two amendments are in fact attempts, although not by any means perfect attempts, but they are the
best attempts that can be mustered on this side of the House to seek to cure that fundamental defect.
§ The Bill still relies on the term "ordinarily resident" in two respects which are crucial, in my submission, to a person's claim to be a British citizen. Under Clause 1 a child born in the United Kingdom will be a British citizen by birth only if his father or mother is a British citizen or settled in the United Kingdom, and "settled" as defined in Clause 50 of the Bill as being ordinarily resident without any restriction under the immigration laws on the period for which he may remain.
§ Undoubtedly complex questions may therefore arise as to whether a parent was ordinarily resident in the United Kingdom at the time of the birth and these will mean uncertainty as to the claim to British citizenship of the child. An example—this is a hypothetical case—that will drive the point home is as follows. Assume that Mr. and Mrs. "A" are British overseas citizens who were settled for a few years in the United Kingdom before Mr "A" got another job in another member country of the EEC. Mrs. "A" returns to her parents in the United Kingdom where she qualifies for re-admission without restriction. When her first child is due it is born in the United Kingdom. The following question arises: is Mrs. "A" ordinarily resident and is the child a British citizen or is it not?
§ Secondly, under Clause 11 a citizen of the United Kingdom and Colonies who has the right of abode in the United Kingdom will become a British citizen at commencement. One significant category of patrial citizens of the United Kingdom and Colonies are those East African Asians or people from the dependent territories and associated states who are patrial under Section 2(1)(c) of the Immigration Act 1971 which confers the right of abode as a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and ordinarily resident there for the last five years or more. For example, there are a significant number of East African Asian citizens of the United Kingdom and Colonies who are currently working outside the United Kingdom, but who spent more than five years in the United Kingdom with no time limit on their stay. Undoubtedly in my submission complex questions will inevitably now arise as to whether they were ordinarily resident during the five years which determines whether they become British citizens or British overseas citizens when the new Act comes into effect.
I should like to give an actual case as an example. Mr. "X", an East African Asian, a citizen of the United Kingdom and Colonies, came to the United Kingdom in 1968. He studied for three years and from February 1972 to 1978 was in full-time employment with various firms of accountants. At no time was there a time limit on his stay. In 1978 he went to work in Kenya on a fixed-term contract which provided for his eventual passage back to the United Kingdom. Despite 10 years' residence free of conditions in the United Kingdom he has been told that:
The main purpose of your stay in the United Kingdom was to become qualified as an accountant and therefore you were not ordinarily resident".
He would therefore be deemed not to become a British citizen at the commencement of this Act. The facts
of that case speak more eloquently of this problem than anything that I could add in this connection.
§ The proposed amendment would substantially clarify the position by making clear that any person whose absences from the United Kingdom during any period of one year or more did not exceed 90 days in any one year was ordinarily resident throughout that period. It would still be open to a person whose absences were longer to argue that his principal home remained in the United Kingdom and that he was therefore ordinarily resident.
§ In my submission, the Government should have no objection to the drafting of the amendment since it borrows the 90-day provision now embodied in Clause 1(4) as well as in Schedule 1 and the home or principal home wording is also taken from Schedule 1 to the Bill. The additional certainty that the amendment would give would undoubtedly reduce administrative costs and also avoid the cost, and in many cases the misery, of litigation in disputed cases. I beg to move.
§ 10.20 p.m.
§ Lord Belstead
My Lords, I would be very ready to compare the merits of an amendment to replace "ordinary residence" with the existing concept of "ordinary residence" if, on this occasion, it were possible to do so. I say that because I agree with the noble Lord, Lord Elystan-Morgan, that there is something unsatisfactory about having a concept which is undefined. Yet at the same time it is important that the concept of ordinary residence should depend on the facts which are relevant in any particular case. Therefore, I return to saying that if it were possible to compare a definition of "ordinary residence" with that I would do so. That may sound rather discourteous because the noble Lord has laid before the House such a definition, but the difficulty is, if I may say so without discourtesy, that the definition is pretty defective.
The first problem—and I am a little surprised at this—is that it is not clear whether or not the definition is intended to apply to those who are in this country in breach of the immigration laws. Subsection (5) of Clause 50, as your Lordships are aware, already states that a person is not to be treated as ordinarily resident in the United Kingdom at any time when he is in breach of the immigration laws. However, there is no saving for that in the amendment and that definition is, therefore, in conflict—that is to say, the definition in the amendment—with subsection (5) and could be taken to mean that all those who meet the relevant residence requirements in the amendment should be regarded as ordinarily resident in this country, regardless of their status under the immigration laws.
There are also difficulties with the criteria for assessing ordinary residence set out in paragraphs (a) and (b) of the proposed definition. Paragraph (a) is straight-forward enough. Indeed, I acknowledge at once that the specified periods of absence, which the Government have themselves chosen to replace the concept of ordinary residence in various of the avenues to citizenship set up under the Bill, are the same. 352 However, I think that difficulties begin to arise with the alternative criterion to the residence requirement—that of a person's home or principal home—set out in paragraph (b). Perhaps I may take just one example. If a person is living and working in this country and supporting a family abroad, whom he perhaps hopes may eventually join him here, is his home in this country or is it rather the place of residence of his spouse and children? Even if one could decide where a person's home was, the concept of principal home it seems to me opens up a fertile area of dispute.
Therefore, I think that there are problems with the amendment which has been put forward, and the second leg of my criticism is with the definition of "ordinary residence" on the grounds of referring to the person's home. I repeat, I very much agree with the noble Lord about the problems of having an undefined concept; yet that concept is important, in that it depends upon the facts which are relevant to the case, and the definition which would replace it would have to be absolutely watertight. 'With respect, I do not think that this amendment is.
§ Lord Elystan-Morgan
My Lords, I would respectfully suggest that the issue is not whether the amendment is absolutely watertight, but whether the amendment is an improvement upon the phraseology adopted up to now by the Government. In my submission, the situation is still highly unsatisfactory. A loose and indeterminate wording inevitably makes bad law and I have no doubt will create a great deal of difficulty. The provision is not in conflict, nor can it be, with Clause 50(5), since that clause is intended to be all-embracing and therefore must by definition be governed by and subject to it.
In my submission, a greater burden, unnecessarily so for I am certain that this phraseology is capable of improvement, has been placed upon the shoulders of our own people in this matter than would ever be tolerated, for example, under the provisions of Article 48 of the Treaty of Rome for citizens of the member states. We had figures kindly given to the House earlier today in that connection. They do not have to go through this miserable swing. It is on that basis that I ask the Government even at this late hour to consider that it is still an unsatisfactory and intolerable situation. Parliament has no right to make law knowing that it is utterly defective from the very start.
§ On Question, amendment negatived.
§ [Amendment No. 147 not moved.]
Lord Belstead moved Amendment No. 148:
Page 42, line 35, leave out ("subsection (2)") and insert ("subsections (2) to (4)").
§ The noble Lord said: My Lords, this is a small amendment which seeks to alter the reference to the definition of "settled" in Clause 51 of the Bill in order to make the drafting correct. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 149 not moved.]353
§ The noble Lord said: My Lords, in Committee I suggested that the words "of unsound mind" should be qualified by the addition of the words "within the meaning of the European Convention of Human Rights". The noble Lord, Lord Belstead, said that this was a point that required examination, although he qualified his reply by pointing out that the phrase "not of unsound mind" in Clause 49(11) was identical with the definition in Section 32(9) of the British Nationality Act 1948, and that it had not caused any major difficulties of interpretation in that Act, although the noble Lord went on very fairly to say that I might well reply that the law had moved on since then and that the phrase might no longer be entirely appropriate even if it had not caused any difficulties.
§ I hope that the Minister has had time to look at the paper to which I referred on that occasion by Mr. Larry Gostin entitled, The Merger of Incompetency and Certification in which, to put it in a nutshell, what Mr. Gostin is saying is that patients who are not compulsorily detained in a psychiatric unit or hospital are considered capable of exercising all the normal functions of a citizen such as the ownership and management of property, the exercise of the franchise, and so on that a physically ill patient would be capable of; but if the psychiatric patient is a voluntary patient, or if he is being cared for in the community, there is no reason for treating him any differently from any other patient, and only if he is compulsorily detained under one or other of the provisions of the Mental Health Act 1959 which I mentioned in this amendment would the law then consider him to be incapable of exercising certain of the functions of a citizen.
§ What I have tried to do in this amendment is, to use the words of the Minister on the last amendment, to replace an undefined concept with something which is watertight, because we are used to looking at the use of these sections of the Mental Health Act for the detention of people in a psychiatric unit or hospital, and we then consider them to be incapable of making certain decisions for themselves but in other respects we treat mental patients as if they were ordinary citizens. I hope that this small improvement to the Bill will be acceptable as being more in line with current thinking about mental patients, and that, in accordance with the very positive reaction from the Minister when I last tried to draft a similar provision, the Government will see that this provision is more appropriate and will see that it is put into the Bill. I beg to move.
§ Lord Mackay of Clashfern
My Lords, my noble friend undertook to look at this matter as a result of the previous amendment on this subject which the noble Lord, Lord Avebury, proposed. We have done that but I regret that we do not see that the present amendment is really an improvement. As the noble Lord has already said, this phrase appears in Section 32(9) of the British Nationality Act 1948 and has not given rise to any difficulties. "Being of unsound mind" has in the past normally been generously interpreted for nationality purposes as being unable to grasp, even dimly, the purpose of an application for citizenship or of taking 354 the oath of allegiance. We have no reason to suppose that the term will be interpreted any less generously under the new legislation. On the other hand, where one is concerned with compulsory detention in a mental hospital, one is concerned with a person who is unable to care for himself, or who is a danger to himself, or who is a danger to the public, or who has been convicted of some criminal offence and been found to be of unsound mind. These situations are so different that to equate them, as this amendment seeks to do, appears to be going in the opposite direction, with great respect, and far from improving the Bill it seems to be introducing a false analogy. In the light of that consideration, I hope that the noble Lord will feel able to withdraw this amendment.
§ Lord Avebury
My Lords, I wonder how many people who were incapable of grasping the present purposes of citizenship have applied to become citizens of the United Kingdom and Colonies in the past. I am very surprised that this should have been so—or that anybody who was incapable of taking the oath of allegiance should put himself forward to take the oath, or that someone should put forward such a person, that someone presumably being a relative. I find it rather difficult to imagine the sort of circumstances in which this could have occurred in the past. In view of the lateness of the hour I do not intend to press this matter to a Division. I shall consult further with the National Association for Mental Health and see whether we cannot come forward with an even more acceptable formula.
I must say that it would have been helpful to have had some indication of the Government's thinking before I put forward this amendment, as I rather imagined I would do after the rather accommodating reply given by the noble Lord, Lord Belstead, at Committee. However, I will make no great thing of that. I will study what the Minister has said and will come back to this point on Third Reading. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 10.33 p.m.
§ Lord Skelmersdale moved Amendments Nos. 151 to 153:
§ Page 46, line 8, leave out ("colony or associated state") and insert ("territory").
§ Page 46, line 10, leave out ("colony or associated state") and insert ("territory").
§ Page 46, line 11, leave out from ("territories") to end of line 12.
§ The noble Lord said: My Lords, I spoke to Amendments Nos. 151, 152 and 153 when moving Amendment No. 145, and I therefore beg to move them en bloc.
§ On Question, amendments agreed to.
§ Schedule 6 [British Dependent Territories]:
Lord Elystan-Morgan moved Amendment No. 154:
Page 60, line 34, leave out ("Dependent") and insert ("Associated").
§ The noble Lord said: My Lords, the purpose of the amendment was to invite this House to consider 355 whether the appellation "dependent territory" is as appropriate in relation to the territories which this House knows we are dealing with in this Bill as compared with the title "associated territory". Briefly my case is that "dependent territory" is a concept and a nomenclature that belongs to a past age and that it would be proper, in shedding the old colonial cloak, for us to get rid of this appellation in the same way. When this matter was mooted at an earlier stage of the Bill, we were told then that the alternative suggested of "associated territory" would cause great confusion because it was already used in another part of the Bill. As I understand it, that other part of the measure has now suffered a sea change and that the term "associated territory" is not used anywhere else in the Bill. I beg to move.
§ Lord Trefgarne
My Lords, as the noble Lord said, the amendment seeks to alter the description of the territories listed in Schedule 6 to "British associated territories", and I presume it is his intention that the change should be carried through elsewhere in the Bill and that citizens of the British dependent territories would then be known as citizens of British associated territories. We have carefully considered this change, but we see some difficulties in it. For one thing, to refer to the dependent territories as associated territories would lead to confusion, as the noble Lord rightly apprehended, because, as your Lordships will know, certain dependent territories in the Caribbean are known as associated states, which is slightly different from what the noble Lord was referring to. They enjoy a considerable degree of self-government and differ significantly from other dependent territories. It might well be assumed that in making the proposed change, we had it in mind to alter the status of other dependencies to put them on a par with the associated status. This is of course not so, but there would undoubtedly be scope for uncertainty and misunderstanding which I believe could be harmful to some of the dependencies.
Moreover, the term "dependent territories" is well understood internationally and I think accurately reflects the relationship of the territories listed in Schedule 6 in the international sphere, since of course their external relations are a matter for the United Kingdom and not the dependencies themselves. It is true that they enjoy varying degrees of self-government, and the extent to which they can be said to depend on the United Kingdom in, say, economic activities varies very much. But in international terms, they are dependent territories and it is appropriate that they should be described as such. I do not think therefore that this description is incorrect or demeans the inhabitants of the territories in any way. It is an apt reflection of their status and we do not favour altering the description of them, particularly in the way proposed by the noble Lord. I hope therefore that the amendment will not be pressed.
§ Lord Elystan-Morgan
The amendment will not be pressed, my Lords. We are disappointed, though not perhaps totally surprised. We are however sorry to see that the fluid and able mind of the Minister is now settling and cooling in the rigid mould of the 356 Foreign Office. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Skelmersdale moved Amendment No. 155:
Page 60, line 37, leave out ("Belize").
§ The noble Lord said: My Lords, this is consequential on Amendment No. 123. I beg to move.
§ On Question, amendment agreed to.
Lord Skelmersdale moved Amendment No. 156:
Page 60, line 46, at end insert ("St. Christopher and Nevis").
§ The noble Lord said: I think it would be for the convenience of the House, my Lords, if I spoke at the same time to Amendment No. 157. We discussed when speaking to Amendment No. 124 the reasons for moving Antigua, soon to be known as Antigua and Barbuda, from Schedule 6 to Schedule 3. Amendments Nos. 156 and 157 achieve the removal from Schedule 6. We also thought it desirable at the same time not to distinguish between colonies and associated states in the list of dependent territories. The distinction has very little significance for nationality law and it seems better that there should be one list of dependent territories.
§ I feel that I should put on record my understanding that the House authorities have agreed that the italicised subheadings "Colonies" and "Associated states" may be allowed to disappear by way of printing, rather than by amendment. Amendment No. 156 therefore moves "St. Christopher and Nevis", our last associated state, to its appropriate alphabetical position in the amalgamated list. I must stress however that this is not in any way intended to reflect any general change in the status of St. Christopher and Nevis as an associated state. There need be no fears on that score. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 156A not moved.]
Lord Skelmersdale moved Amendment No. 157:
Page 61, leave out lines 7 and 8.
§ On Question, amendment agreed to.
§ Schedule 7 [Consequential amendments]:
Lord Belstead moved Amendment No. 158:
Page 61, line 10, at end insert—
§ ("ACT OF SETTLEMENT (12 & 13 Will. 3. c. 2)
§ In section 3, the words from "That after the said limitation shall take effect "to" in trust for him" (which impose certain disqualifications) shall not apply to Commonwealth citizens or citizens of the Republic of Ireland.").
§ The noble Lord said: My Lords, the amendment clarifies an otherwise dubious point of construction of Section 3 of the Act of Settlement of 1700. That section provided that no person born outside the kingdoms of England, Scotland or Ireland or their dominions could be a member of the Privy Council or to either House of Parliament. Schedule 4 to the British Nationality Act repealed that provision so far as it related to British subjects and citizens of Eire. The repeal schedule of the 1948 Act, however, is now to be repealed in this Bill, with the result that a doubt could conceivably be 357 raised as to the extent of the original repeal, particularly as regards the meaning of "British subject" in the 1948 Act's repeal schedule. It is highly important that it should be absolutely clear who can be members of the Privy Council and who can stand for Parliament. I think that the effect of the amendment puts it beyond doubt. My Lords, I beg to move.
§ Lord Avebury
My Lords, will the Minister confirm that the amendment retains the existing position? I am most grateful to him. Does that mean that distinguished Canadians, for instance, would be able to stand for membership of the House of Commons, as they have done in the past?
§ Lord Belstead
My Lords, I think that that is the case, but if by any chance I am wrong, I shall write to the noble Lord.
§ On Question, amendment agreed to.
Lord Skelmersdale moved Amendment No. 159:
Page 63, line 2, leave out ("44(2)") and insert ("44").
§ The noble Lord said: My Lords, this is a technical amendment, but it is important to make it. It concerns the amendments made by Schedule 7 to the West Indies Act 1967 in so far as that Act concerns nationality decisions in the last associated state, that of St. Christopher and Nevis. Our relationship with the associated state is reflected in the fact that special provision for nationality matters is made in the 1967 Act, rather than in the principal nationality statutes. Essentially, however, our law applies in the associated state as administered by a designated officer or the holder of a designated office. It so happens that, as the Bill stands at present, it applies subsection (2) of Clause 44, but not subsection (1). Subsection (2) says that reasons may not be required for discretionary decisions, nor may they be questioned in the courts. Subsection (1) is the subsection which says that decisions must be taken without regard to an applicant's race, colour or religion. I am sure that your Lordships will agree that the designated officer or office holder in St. Christopher and Nevis should be bound by subsection (1) as well as having subsection (2) apply to his decisions. My Lords, I beg to move.
§ On Question, amendment agreed to.
§ 10.44 p.m.
Lord Belstead moved Amendment No. 160:
Page 66, line 21, at end insert—
§ 1. In section 1 (prohibition of unlicensed deep sea mining)—
- (a) in subsection (4), for "citizen of the United Kingdom and Colonies" substitute "United Kingdom national";
- (b) in subsection (5)(a), for "citizens of the United Kingdom and Colonies" and "such citizens" substitute respectively "United Kingdom nationals" and "such nationals"; and
- (c) in subsection (6), for the words from "and references" onwards substitute—
"United Kingdom national" means—
- (a) a British citizen, a citizen of the British Dependent Territories or a British Overseas citizen;
- (b) a person who under the British Nationality Act 1981 is a British subject; or
- (c) a British protected person (within the meaning of that Act).".
§ 2. In section 14(3) (persons who may be guilty of offences under regulations), for "a citizen of the United Kingdom and Colonies" substitute "a British citizen, a citizen of the British Dependent Territories or a British Overseas citizen".").
§ The noble Lord said: My Lords, this is a purely technical amendment which in effect changes the citizenship references in the Deep Sea Mining (Temporary Provisions) Act 1981 in the light of the changes made by the Bill. It is on all fours with the other entries in Schedule 7, and its late arrival is explained by the fact that the Deep Sea Mining (Temporary Provisions) Act 1981 was only recently passed. My Lords, I beg to move.
§ Lord Geddes
My Lords, may I ask what I hope is a very simple question with respect to paragraph 1(c)(a) of this amendment? I should add that my question also refers to page 64 of the Bill, lines 25 to 28, and page 66 of the Bill, lines 15 to 18. If a United Kingdom national—or, as in the case of page 66, lines 15 to 18, a national of the United Kingdom—means a British citizen, a citizen of the British dependent territories or a British overseas citizen, would it be correct to say that each of a British citizen, a citizen of the British dependent territories or a British overseas citizen is therefore a United Kingdom national?
§ Lord Belstead
My Lords, I think I shall have to think about that one. This, of course, refers back to an amendment which the noble Lord moved at the very beginning of our proceedings today, Amendment No. 118, on which the House has already reached a decision.
§ Lord Geddes
Indeed, my Lords. I do not want to detain the House any longer; I was merely trying to draw the analogy—
§ Lord Geddes
I beg your Lordships' pardon. My Lords, with the leave of the House, I was merely trying to draw the numerical analogy that if three equals one plus one plus one, then presumably one plus one plus one equals three.
§ Lord Belstead
My Lords, if indeed the House will give me leave, I think the technical answer to my noble friend's point is that this is just a drafting device for the purposes of that particular Act only. It does not have a wider application, which I think was rather the hope of my noble friend.
§ Lord Elystan-Morgan
My Lords, surely that cannot be entirely correct. It has an application in relation to two or three other Acts which are referred to in the schedules to the Bill and to which my noble and learned friend Lord Elwyn-Jones referred in the course of the debate earlier this afternoon. So now that we know that this wording applies to at least three Acts of Parliament, I think the question that Ministers should apply their collective mind to is whether or not it would not have been appropriate after all to have 359 employed the phraseology suggested by the noble Lord, Lord Geddes.
§ On Question, amendment agreed to.
§ Schedule 9 [Repeals]:
§ Lord Belstead moved Amendment No. 161:
§ Page 72, line 15, at end insert—
|("1981 c. 52.||Belize Act 1981.||Section 4(1).").|
§ The noble Lord said: My Lords, this, I think, is a consequential amendment. Certainly it is an entirely technical amendment, removing a spent provision from the statute book. I beg to move.
§ On Question, amendment agreed to.
§ In the Title:
Lord Tanlaw moved Amendment No. 162:
Line 1, leave out ("and nationality").
§ The noble Lord said: My Lords, it must be with some relief that the noble Lord, Lord Belstead, has to answer perhaps his last amendment. The reason why I am bringing this amendment forward is that I think it can be assumed that anyone who wishes to know or to find out about his nationality would consult a Bill entitled "British Nationality Bill" in the Short Title and, in the Long Title, to which I shall refer later, a Bill "about citizenship and nationality". But surely something must be wrong with our system of making Acts of Parliament if the Title of the Bill is misleading—in this case the Short Title—and the Long Title (in my view) is deceptive. A number of misunderstandings have been created about this Bill on the whole question of nationality, and I believe there are some real dangers of this Bill being misunderstood, not in the legal sense but in perhaps the emotional sense, in the British dependent territories and in other areas overseas.
My Lords, the Long Title of the Bill makes a distinction between citizenship and nationality in that it states—and perhaps I may quote just to remind the noble Lord—that it is,
An Act to make fresh provision about citizenship and nationality, and to amend the Immigration Act 1971 as regards the right of abode in the United Kingdom".
In my simple way, perhaps, I can find no fresh provision which is made in this Bill in regard to British nationality; nor has any distinction been made between these terms, in spite of the amendment which the noble Lord, Lord Geddes, attempted to have passed earlier today; and no definition has been given of the term "British nationality". Throughout the long gestation period of this Bill, the term "citizenship" has been debated and to a certain degree clarified with regard to rights of entry, abode status and so on, but nothing definite has been said by Her Majesty's Government that I have understood about nationality. Nor is there any clarification of it within the Bill itself. Therefore, I question what use this term has in the Title of the Bill except to confuse citizens who may seek to clarify their nationality as opposed to their citizenship status with the help of this Bill. British citizens residing in this country may not be in much doubt as to their nationality but citizens of the British dependent territories are most unsure as to what is
their nationality and where they stand on how to complete the forms at an hotel or for an international driving licence and so on in answer to the question, "What nationality?" This was covered earlier today.
§ What is much more important is the non-legal link or emotional link that the citizens of British dependent territories wish to maintain with this country and they are worried about the inclusion of nationality in the Title of this Bill. They think something is happening about it. They read the Bill and inside the Bill nothing is said; so the question is left unanswered. The Title of this Bill, the British Nationality Bill, makes this clear distinction between citizenship and nationality. Everyone knows that when an individual applies for citizenship and is accepted there is a clear understanding, an oath of allegiance, and certain rights and obligations are attached to that citizenship which is definable. No one, as far as I am aware, can apply for a nationality or to be precise for a British nationality; for it is assumed automatically that citizenship carries with it the label of nationality of that nation-state which was empowered to grant citizenship in the first place.
I looked up the dictionary before putting down this amendment. In the Oxford Dictionary,"nationality" is defined as
national character or quality".
"Citizenship", again in the Oxford Dictionary, is
the position of being a citizen with its rights and privileges".
I went to Jowett's Dictionary of Law and it says,
Nationality: the quality or character which arises from the fact of a person's belonging to a nation or state while domicile shall determine his civil status".
§ This may be helpful in the interpretation of this Bill, but perhaps the noble Lord can explain to me why the 1948 British Nationality Act repealed the words "British nationality" in Section 28 of the earlier 1914 Act which was entitled "British Nationality and Status of Aliens Act". There is reason for this because they could not define "British nationality"; so they took it out of that Act and they took it out in the Titles and all references to it have been altered. The noble Lord will forgive me if I am not a lawyer and have got that wrong. It has been taken out of other Acts before and it has crept back into this one because it may be convenient for the Government to leave this delicate question in the air.
§ It would be immensely helpful if the noble Lord could state quite categorically that citizens of the British dependent territories can, if they wish, describe their nationality as "British". After all, their citizenship has been determined by a British Government. Why not their nationality? If the noble Lord says that he cannot allow this, can he say if a citizen of the British dependent territories will have broken the law by completing, say, an international driving licence, credit card or an hotel registration by using the description "British" under the heading of "Nationality"? If so, which law has he broken? Is it that of the British Nationality Bill which is going to become law? What penalties are there?
§ If the noble Lord says that, under this British Nationality Bill, citizens of British dependent territories are not entitled to use the term "British" in answer to questions of nationality, what are they 361 supposed to write? Perhaps the noble Lord will say that perhaps they should write "Citizen of the British Dependent Territories", perhaps abbreviated to "COTBDT", simply because the British dependent territories are not nation-states either individually or collectively. So it is not a correct answer to the question of nationality. How can citizens of the British dependent territories write "COTBDT" or whatever?—because these are not nation-states. These are British dependent territories. The only nation-state involved is Great Britain. Therefore, I cannot see how a citizen of the British dependent territories can take a nationality other than of that nation-state that gives him his citizenship. I can see very serious complications and inconvenience arising with people having to explain this; and, indeed, Her Majesty's Government having to explain to other Governments about where they stand to answer this question of nationality.
§ I have mentioned that there has been some emotional misunderstanding and objections about this. I believe most of them would evaporate overnight if the noble Lord could give these clarifications. Therefore, I am asking the noble Lord to accept that deletion of the term "nationality" in the Title because I believe that it would show no further misunderstanding of this Bill. If the noble Lord feels that it is necessary to retain the word "nationality", is he in a position to define it for the benefit of the citizens of the British dependent territories so that they know at least where they stand? During the course of the amendment of the noble Lord, Lord Geddes, today it was said by the noble Lord, Lord Elystan-Morgan, that in fact it would be helpful if a definition of the term "nationality" could be made in this country. Therefore, why not send the Bill back to the Commons and ask them to see whether they can produce a definition that can clarify the position?
§ If I just take one example where misunderstanding could arise: suppose for a moment that a loyal citizen of, let us say, the Pitcairn Islands wishes to prove his nationality is British. He can go to a court of law and try to get this defined in order that his Britishness can be proved in terms of nationality. I believe that he would do so on the grounds that he is domiciled in a British dependent territory without a national status of its own and therefore he wishes to maintain his own personal bond with this country and he wants to prove it in law. Possibly if that area is not open to him he may wish to appeal to the Secretary of State. In Section 4 of the 1914 Act it is said that intervention by the Secretary of State may occur where nationality of the British subject is in doubt. Perhaps this is an area where the citizen of the Pitcairn Islands who wishes to prove his loyalty to this country could possibly apply. It will be most helpful if the noble Lord could say whether this would still operate.
However, I must warn the noble Lord that there are very serious dangers in this because this has been known to occur in other countries; namely, in South Africa where it is very important that the nationality of those citizens is clearly defined. Noble Lords may be interested to hear what difficulties and dangers lie along this path. I can take an extract from the proceedings of that Parliament to explain more clearly where this approach might lead without having a legal definition
of "nationality". In answer to a Parliamentary Question about nationality, the Minister of the Interior (the equivalent to the right honourable gentleman the Home Secretary) gave the following reply:
A total of 101 coloured people became whites, one Chinese became a white, two whites received coloured classifications, six whites became Chinese, two whites became Indians, 10 coloured people became Indians, 10 Malays became Indians, 11 Indians became coloured people, four Indians became Malays, three coloured people became Chinese, while two Chinese were reclassified as coloured people".
This is where the Government can come unstuck—on this question of nationality. Is this what could happen here when a citizen of the British dependent territories wishes to determine his nationality?
§ Noble Lords have laughed, but in that unhappy country the classification of an individual's nationality determines the level of the whole way of life for himself, his family and even his cousins. This may sound amusing to some noble Lords, but to those individuals concerned, that answer in that Parliament determines at what level their lives would be lived; what restaurants they may use, and so on. This is a question about nationality, not about citizenship. Therefore, what about the loyal citizen of the Pitcairn Islands who wishes to prove his Britishness and his British nationality? To whom does he go? To the Secretary of State, to get clarification in Parliament? This is the kind of situation the Government can get themselves into without a clear definition of nationality. So I would feel that if the noble Lord attempts to get away from this question in one form or another and leaves it in the air, there will be still greater and further misunderstandings about this Bill as a whole—misunderstandings that need never arise. Everyone accepts that the base of the Bill is necessary, but its presentation has been poorly made and will create difficulties in areas such as Hong Kong.
§ I should like to leave this final thought with the noble Lord, having mentioned Hong Kong. That is that the Hong Kong people wish to retain their Britishness, if you like, by means of a non-legal term that they can fill in on the form: "British Nationality". If Britain says, "No, you cannot do that: We are not very interested in what you call yourselves, but we will look after you", I believe that will lead to very serious dangers. As a trading post, they live by trade and they breathe commerce. They have been pressurised by the British Government to buy British. They have honoured that in the belief that they are British. If the Government indicate, however subtly, or by not answering this question of nationality, people in Hong Kong may say: "You do not think we are very British. We as a trading port may want to take tenders worldwide. We do not necessarily wish to benefit British industry; we wish to benefit ourselves. You say that we are only so-so British, without British nationality". They may, therefore, ask for concessions equally vague but very damaging to this country's commerce. This is not a legal matter; it is a frame of mind, if you like, and I think it is dangerous to leave it in the air. I hope that the noble Lord can clarify this situation for us all. I beg to move.
§ Lord Geddes
My Lords, it will not surprise your Lordships that I most warmly support this amendment. However, we have had a very good debate of one hour 363 or more earlier this afternoon and it would be invidious to repeat the arguments used at that stage; but I should like to stress the extreme importance placed by the dependent territories on Britishness and the nomenclature of being a British national.
§ Lord Elystan-Morgan
My Lords, the logic of the arguments of the noble Lord, Lord Tanlaw, in my submission, are utterly irrefutable and his arguments flawless. I, too, have the utmost sympathy with the motivation behind this amendment. The House may remember that when I had the privilege of addressing your Lordships for the first time during the Second Reading debate on this Bill I made the exact point. There is a world of difference between nationality and citizenship. Nationality is basically a concept of sociology and ethnography. Citizenship is a legal concept. It is very unfortunate, I think, that they should be regarded as interchangeable. In terms of nationality I regard myself as Welsh. I am sure that my noble and learned friend Lord Elwyn-Jones would say the same, as would my noble friend Lord Cledwyn and many others in this House. But in terms of citizenship we are British, and although one can say that certainly this confusion has existed in statute for a very long time—certainly since 1948—it is none the better for that, and the mischief that such confusion can create is now greater than at any other time.
The fact that it is contained in the Long Title of the Bill does not make it unimportant. As the lawyers in this House will know, from time to time the courts look at the Long Title of a Bill for assistance in interpretation. Therefore, without unnecessarily and tediously repeating myself, I ask the House to consider yet again whether, indeed, it is necessary to make any reference whatsoever to nationality in this Bill, since, in so far as nationality might represent citizenship towards the outside world, the House has already decided earlier today in relation to Amendment No. 118 that it does not wish to deal with this Bill in that way.
§ Lord Avebury
My Lords, may I ask the Minister to deal with one point? The noble Lord, Lord Belstead, said when the amendment of the noble Lord, Lord Geddes, was being discussed that we had to make a distinction between the words "national" and "nationality". They dealt with two completely different concepts. What we are talking about here is nationality. I should like the noble Lord who is to reply to point to one single use of the word "nationality" anywhere in this Bill, except where reference is made to the Nationality Acts 1948 to 1965. I do not believe that the word "nationality" is used except in that context, and therefore it is entirely inappropriate to have it in the Long Title.
§ Lord Trefgarne
My Lords, I must say at the outset that I have a slight feeling of déjá vu about some of this, but it may be helpful if I say a very few words about the general question of nationality and citizenship. The expression "nationality" and the expression "citizenship" are both terms used to describe a national status accorded by a state to people connected with it in various ways. Each expression has a 364 variety of meanings, which cannot be neatly expressed in a simple definition. In some contexts, the two expressions are synonymous, but in other contexts they may carry different meanings. These meanings may or may not overlap. International usage is not consistent.
The present Bill exemplifies the creation by one country of three different statuses. The word "nationality", as used in the title of the Bill, indicates that it deals generally with the subject of national status, while the word "citizenship" is used to describe each of the three new statuses. There are other British statuses in the Bill which are not citizenships; the status of British subject and British protected person, for example. It is therefore right that the Title of the Bill should refer both to citizenship and nationality. This is, after all, a measure which is intended to overhaul the nationality law of this country in all its aspects.
A number of different points have been made by various noble Lords this evening on this amendment. Your Lordships may feel it appropriate that I do not deal with each and every one of them in detail at this late hour, but perhaps I may just touch on one or two. The noble Lord, Lord Avebury, said that there was no reference to nationality anywhere else in this Bill. That is not correct. There is a reference, for example, in Clause 12(3) of the Bill. I would also explain why the preamble to the Bill uses the words,to make fresh provision about citizenship and nationality".It is true that the principal new categories or statuses created by this Bill are called "citizenships". Nevertheless, there are other categories or statuses dealt with in the Bill; for example, British subject without citizenship and British protected person. Nationality is, I submit, a satisfactory generic term to describe the subject matter of this Bill as a whole. I hope that the noble Lord, Lord Tanlaw, will take these points and will not seek to press his amendment.
§ Lord Tanlaw
My Lords, the worst has happened. The noble Lord has avoided the question—as, indeed, it was avoided on the amendment moved by the noble Lord, Lord Geddes. I must take up the noble Lord on one point. He will no doubt recall that in the very early stages of the Bill I put down two other amendments which referred to nationality. The word "nationality" appears in one other place—in Clause 35 as well as in Clause 12(3). If the noble Lord will read it more carefully again he will see that it does not refer to British nationals; it refers to other than British nationals. It deals with foreigners. That is why I did not add those amendments to the ones at Third Reading. I felt it was wrongly presented as an amendment. The other two references to nationality related to people other than British citizens, subjects, or whatever.
I am afraid it was a bad answer. I still maintain that there are going to be difficulties about understanding the Bill. They could quite easily have been resolved. The question of status and the question of loyalty that we wish to maintain within the British dependent territories could be maintained quite simply without all this covering up, as it may appear to be to others who are not knowledgeable about the law and who do not realise what the Government are trying to 365 achieve. It is dangerous ground merely to change the Title of the Bill if it is not going to change the attitude of the Government.
I cannot do any more from these Benches than try to persuade the Government to listen and to withdraw this reference to nationality from the Long Title because I feel that it will lead to misunderstanding. If they are not going to do anything about it, I shall not press the matter. It would be petty to do so, having made the point. I have not been alone in making it. There was support earlier today from all over the House. The noble Lord dismissed this as déja vu. To say that is highly dangerous when Hansard comes to be read by people overseas. It is an unhappy and unfortunate end, because it exposes the Government's attitude towards people who are perhaps the most loyal of all: The people in these territories who are most affected and who wish to have British nationality. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.