Report (2nd Day)
42: Before Clause 43, insert the following new Clause—
(1) Section 3 of the British Nationality Act 1981 (c. 61) (acquisition by registration: minors) is amended as follows.
(2) In subsection (2), for “within the period of twelve months from the date of the birth” substitute “while he is a minor”.
(3) Omit subsection (4).”
My Lords, I am pleased to move the amendment standing in the name of my noble friend following discussions between Committee and Report. I am very grateful for the indulgence of the House, which allowed us to take away a number of items based on specific cases and to seek to deal with them. That was a useful and profitable way of doing things. I am grateful to the officials in the Home Office who came down from the nationality division in Liverpool to help to progress those. The noble Baroness, Lady Hanham, reminded us at the time that, while we were dealing with case law that arose from individual cases that might assist us, the matters of principle would come back. Indeed, as noble Lords can see from the Marshalled List, there are a number of amendments on matters of principle.
The Government’s amendment relates to the registration of minors under Section 3(2) of the British Nationality Act 1981. Section 3 enables a child born outside the UK to register as a British citizen if his or her parent is unable to transmit British citizenship automatically because he or she is a British citizen by descent. The law currently specifies that an application under this section must be made within 12 months of a child’s birth. The Government accept that, in view of the changing employment and residence patterns over time, the 12-month requirement set out in 1981 is now too stringent. The amendment therefore removes the 12-month deadline and replaces it with a requirement that a child be under 18 on the date of application. In future, a child up to the age of 18 will have an entitlement to register if his grandparent had or would have had British citizenship other than by descent on commencement of the BNA 1981. The parent is thus a British citizen by descent. While this broadens the category of people who can gain British nationality under this route, it continues to be essential under Section 3(2) that the parent in question has lived in the UK or qualifying territory for a period of three years before the child’s birth, except where that child was born stateless.
It is also a principle of national law that good character must apply to all those over the age of 10 who are applying for citizenship. Thus, by increasing the age requirement to 18 for this route, we must ensure that good character applies to those applying between the ages of 10 and 18. Applicants for British nationality must satisfy the Secretary of State that they are of good character, based primarily on the applicant’s criminal history, but also on their financial standing, their candour in relation to immigration and nationality matters and their general standing in the community. It is entirely consistent that those applying under this section must be vetted to ensure that they meet the good character requirement. I beg to move.
Amendment 42A (to Amendment 42)
42A: Before Clause 43, line 6, at end insert—
“( ) After subsection (3)(b)(ii) insert—
“(iii) was a British citizen otherwise than by descent at the time of the birth of the child in question, or would have been such a citizen otherwise than by descent at the time of the birth of the child in question but for his or her death.””
My Lords, we are grateful to the Government for having listened to us on the registration of minors and for the various discussions that we have had with the Bill team during the past couple of weeks. Those discussions have led to this solution for the problem of the registration of minors, which has been with us for a long time. We would be even more grateful if the noble Lord would go a little further and consider the improvement of Section 3(2) of the BNA 1981, as provided for in our amendment.
A key requirement of the section as drafted is that the grandparent must have been a British citizen otherwise than by descent on the date of birth of the parent who is a British citizen by descent. We propose that the same right should be granted to the grandchild of a British citizen otherwise than by descent who has acquired that status after the grandchild’s parent in question has also acquired British citizenship by descent. That would deal with those covered by the granting or registration of citizenship under the British Nationality (Falkland Islands) Act 1983, the British Nationality (Hong Kong) Act 1990, the Hong Kong (War Wives and Widows) Act 1996, the British Nationality (Hong Kong) Act 1997 and the British Overseas Territories Act 2002. Many of the grandchildren of these people cannot benefit from new Section 3(2)(a) as drafted because it requires the grandparent to have been a British citizen otherwise than by descent at the time of the birth of the child’s parent or on commencement of the British Nationality Act 1981.
Perhaps I may briefly give two examples. First, GP from St Helena was conferred British citizenship otherwise than by descent by Section 3 of the British Overseas Territories Act 2002. Her daughter, P, has lived in the UK for more than three years and was granted British citizenship by descent under the same Act. So GP is a British citizen otherwise than by descent and P is a British citizen by descent. P then has a child, C1, who is born overseas and is not entitled to register as a British citizen because GP became a British citizen only on 21 May 2002 and was therefore not technically a British citizen at the time of parent P’s birth. There may be many British citizens by descent on whom British citizenship was conferred under the 2002 Act who could never be covered by or benefit from Section 3(2) of the BNA 1981, despite having long-standing residential connections with the United Kingdom.
Secondly, GQ, who registered under Section 1 of the British Nationality (Hong Kong) Act 1990, became a British citizen otherwise than by descent. Her son, Q, born in 1998 was then registered under Schedule 2 to that Act as a British citizen by descent. After living in the UK for nearly 10 years, Q meets the residential test under Section 3(2) of the BNA. While he is on temporary assignment abroad with his wife, she gives birth and the child, C2, cannot be registered as a British citizen under Section 3(2) because the grandparent only became a British citizen otherwise than by descent after the parent’s birth.
Under Amendment 42A, a child must have sufficient connections to the United Kingdom to be entitled to registration as a British citizen when at the time of their birth: first, the child must have a grandparent who is a British citizen otherwise than by descent; secondly, the child must have a parent who is a British citizen by descent; and, thirdly, the parent must continue to meet the United Kingdom residential requirements of Section 3(2), unless the child is born stateless. Our amendment would put all grandparents holding British citizenship otherwise than by descent on an equal footing. Their grandchildren would qualify if the parent held British citizenship by descent and met the residential requirement set out in Section 3(2) of the BNA 1981, unless the child was stateless.
Our Amendment 50 would remove the good-character test for stateless children who were registered under Section 3(2). That is in line with government policy. Clause 45 and its predecessor, Section 58 of the 2006 Act, make exceptions for children, the stateless and the de facto stateless and we are merely adhering to those precedents. I beg to move.
My Lords, I thank the noble Lord for his kind remarks; gratitude is the order of the moment, if not the day. I also congratulate him on the passion and conviction that he has put into his campaign for stateless people, in particular stateless children. While I accept his passion and conviction, I am sure that he knows that there is a point of principle at issue between the Government and his party.
As I have previously indicated, the Government believe that the good-character application should apply to all those seeking British citizenship. It is appropriate that, despite what the noble Lord said, this route on good character should apply not only to those who are stateless. Section 3(2) is not principally a provision that affects stateless children; its main beneficiaries are parents who are British citizens by descent and who have lived in the UK for three years at any time before the child’s birth. The fact that stateless minors can apply under this section does not mean that it is a statelessness provision. In theory, stateless children could apply under any of the “minor” provisions, such as Section 1(3) or Section 1(4).
In an attempt to be relatively brief, perhaps I may turn to the noble Lord’s other amendment. Amendment 42A would change the requirements of Section 3(2) retrospectively in respect of the status of the grandparents at the time of birth, but I am also unconvinced about that argument. Although it might bring clarity to the position of grandparents, we believe that it breaches the entirely appropriate point that, if the grandparent was not a British citizen at the time that the parent who would be a British citizen by descent was born, there should not be a right to British citizenship under Section 3(2). It is a core principle of nationality law that those who wish to become British citizens must have a close connection with the United Kingdom. This amendment would create a route to citizenship for a child with a limited, if any, connection with the UK.
However, it is appropriate that in an exceptional case of hardship, where a child of a British citizen by descent may not acquire the nationality of his or her birthplace, such children can be considered under the exercise of discretion. Therefore, although I ask the House to accept the Government’s amendments, supported by the noble Lord, Lord Avebury, excepting the points that he has made, the Government do not accept the case to extend the categories of those affected to those with a lesser connection with the UK. I ask the noble Lord to withdraw his amendment and to accept the Government’s amendments to allow for minors in this group to register for British citizenship, some of whom might otherwise be without nationality.
My Lords, I am heartened to some extent by what the noble Lord said about exercising discretion where it can be proved that the child has a long-standing connection with the UK. In both the examples that I gave, the mother was absent abroad at the time of the child’s birth, but that does not mean that the parents were not continuously resident in the UK and that they had not been so resident in the period leading up to the child’s birth. On the basis that the noble Lord’s discretion will be exercised in circumstances such as I have outlined, I am happy to withdraw Amendment 42A. However, perhaps I may say a word on Amendment 50, which specifically applies to stateless children. I thought that it was consistent with the rest of our legislation, but perhaps we will have to return to that on another occasion.
Amendment 42A (to Amendment 42) withdrawn.
Amendment 42 agreed.
43: Before Clause 43, insert the following new Clause—
“British Nationals (Overseas) without other citizenship
(1) Section 4B of the British Nationality Act 1981 (c. 61) (acquisition by registration: certain persons without other citizenship) is amended as follows.
(2) In subsection (1)—
(a) omit “or” immediately before paragraph (c), and(b) after that paragraph insert “, or(d) British National (Overseas)”.(3) In subsection (2)(c), for “4th July 2002” substitute “the relevant day”.
(4) After subsection (2), insert—
“(3) For the purposes of subsection (2)(c), the “relevant day” means—
(a) in the case of a person to whom this section applies by virtue of subsection (1)(d) only, 19th March 2009, and(b) in any other case, 4th July 2002.””
My Lords, it gives me great pleasure to introduce the Government’s amendments, which were tabled following the debates in Committee. In making this proposal, I recognise the tireless campaigning on this issue by the noble Lord, Lord Avebury, with whom lies much of the credit for this change. In many ways, I should leave it to him to speak about the effect. However, I shall speak briefly to the proposals.
These amendments provide a new route to British citizenship for certain persons connected with Hong Kong who would be stateless but for having the status of British national (overseas). Section 4B currently provides a registration route for British overseas citizens, British subjects and British protected persons who do not hold any other citizenship or nationality and have not done anything since 4 July 2002 that would result in the loss of any other citizenship.
These clauses extend Section 4B to include BNOs and will thus provide a new route to British citizenship for certain persons connected with Hong Kong who would be stateless but for having the status of BNO. This new clause provides for stateless BNOs who, unlike those who can apply under the British Nationality (Hong Kong) Act 1997, do not have an alternative route to Section 4B. The Government recognise that such persons are at a disadvantage and therefore propose to give them a route to British citizenship through this amendment. I beg to move.
Amendment 43A (to Amendment 43)
43A: Before Clause 43, line 15, at end insert—
“(4) A British National (Overseas) who is registered as a British citizen under this section shall be treated for the purposes of this Act as—
(a) A British citizen by descent; or(b) a British citizen otherwise than by descent,according as to whether, immediately before 1 July 1997, he was for the purposes of this Act a British Dependent Territories citizen by descent or a British Dependent Territories citizen otherwise than by descent.””
My Lords, we are grateful to the Government for this amendment, which, as the Minister explained, solves a long-standing anomaly. When we transferred power over Hong Kong to the Chinese, we promised that the citizenship arrangements would leave no one stateless but, in the event, it turned out that certain British nationals (overseas) were stateless. This amendment rectifies that anomaly and so we very much welcome it. It enables BNOs to register under Section 4B of the BNA 1981 where she or he is otherwise stateless. Amendment 43A would put those BNOs who register under Section 4B on an equal footing with those who have already been registered or are eligible to register under the similar provisions of the British Nationality (Hong Kong) Act 1997.
The added words mirror Section 2(1) of the British Nationality (Hong Kong) Act, which gives a solely BNO who is registered under it the same kind of transmission capacity in relation to British citizenship as they enjoyed when they held British Dependent Territories citizenship before the handover of Hong Kong. When a person is registered under that Act, if he was a Hong Kong BDTC otherwise than by descent, he becomes a British citizen otherwise than by descent and, if he was a Hong Kong BDTC by descent, he becomes a British citizen by descent. The added wording would mean that the British citizenship granted to BNOs under Section 4B of the 1981 Act would be of the same type as they would have been granted had they registered under the 1997 Act.
I shall take the opportunity, if I may, of clearing up one misunderstanding that has arisen in Hong Kong, which concerns people of Nepalese origin who can take advantage of this amendment. At one time it was the practice of the Nepalese authorities not to determine a person’s Nepalese citizenship until he reached adulthood. However, in 2005 the Nepalese consulate clarified the policy and issued a note verbale that said that no one who had BNO citizenship could be at the same time a Nepalese citizen. Therefore, nobody had to make the decision when becoming an adult as to which citizenship to opt for. I beg to move.
My Lords, we have always thought that it was around 1,000, but I believe that the Home Office has estimated that it is a few thousand. No one really knows the number because there has been no census or poll of the people concerned and, obviously, not all of them would wish to take advantage of the provision anyway. I think that the number is somewhere between 1,000 and 3,000, taking the upper end of the estimates given by the Home Office.
My Lords, I confirm the answer given by the noble Lord, Lord Avebury, to the noble Lord, Lord Hylton. We are talking about a relatively small number of people who could but may not all wish to take advantage of this route. There has been a meeting of minds between the noble Lord, Lord Avebury, and the Government, but as with all meetings of minds there comes a point at which those minds cease to be quite as joined.
The point of principle that causes the Government to oppose Amendment 43A is when it proposes that those BNOs who have previously held British Overseas Territories citizenship otherwise than by descent before 1997 could become British citizens otherwise than by descent on registration under Section 4B. That would mean that citizenship could be transferred to a further generation born outside the UK by those who had held British Overseas Territories citizenship otherwise than by descent. The amendment is not necessary, as registration under the British Nationality (Hong Kong) Act 1997 will continue to be available to BNOs if they meet the ordinary residence qualifications in Hong Kong. Those who can meet those requirements will therefore have a choice on whether to register under the 1997 Act or under Section 4B of the BNA 1981.
The amendment proposed by the Government to Section 4B will include within its scope those BNOs who find themselves otherwise stateless. That has no impact on the application of the 1997 Act. Following the amendment to Section 4B, there will be at least three routes in which a BNO can acquire British citizenship. That means that the Government are comprehensively addressing the various circumstances in which those individuals find themselves and providing for a form of British citizenship that reflects those circumstances. The current beneficiaries of Section 4B—British overseas citizens, British subjects and British protected persons—acquire that status by descent. To treat BNOs differently would, in our view, be both inconsistent and unfair.
I hope that, with that explanation and recognising the spirit with which the Government have brought forward our amendment, the noble Lord will feel able to withdraw his amendment.
My Lords, there is a bit of confusion between us, because I am talking not about people who may register under the British Nationality (Hong Kong) Act 1997 but about people who may or will register under the provisions of the government amendment and the type of citizenship that they get or can transmit to their children. We are not going to resolve the issue across the Floor of the House this afternoon. I reiterate the gratitude that I have already expressed to the Minister for the discussions that we have had behind the scenes and for the comprehensive analysis of the proposals made by the Government and the Bill team. For the time being, and with the hope that we may return to this subject in future, I beg leave to withdraw the amendment.
Amendment 43A (to Amendment 43) withdrawn.
Amendment 43 agreed.
45: After Clause 43, insert the following new Clause—
“The Ilois: citizenship
(1) Section 6 of the British Overseas Territories Act 2002 (c. 8) (the Ilois: citizenship) is amended as follows.
(2) After subsection (2) insert—
“(2A) A person shall be entitled to register as a British citizen if—
(a) his father or mother was or is a citizen of the United Kingdom and Colonies or a British citizen by virtue of birth in the British Indian Ocean Territory or by operation of section 6(1), and(b) he is not a British citizen.(2B) A person shall be entitled to register as a British overseas territories citizen if—
(a) subsections (2A)(a) and (b) apply to him, and(b) immediately prior to registration under subsection (2A) he was not a British overseas territories citizen.(2C) In subsection (2A)(a) “father” has the meaning given in section 50(9A) of the British Nationality Act 1981.
(2D) No charge or fee shall be imposed for registration under section 6(2A) or (2B).””
My Lords, with this amendment, we return to the situation of the Chagos islanders, who were expelled from their homeland 40 years ago and are still hoping that, with the help of world public opinion, they will be allowed to return. We support that demand, but in this amendment we are concerned only to protect the citizenship rights of the children born to parents who were themselves born in the Chagos Islands—thus, all of the first generation born in exile. Those children would be entitled to register whether the parent was a man or a woman and whether or not the parents were married. In addition, the amendment gives an entitlement to register to the children of those who registered under Section 6(1) of the British Overseas Territories Act 2002. Such people, those born on or after 26 April 1969 and before 1 January 1983, became British citizens by descent on registration. They therefore cannot pass on their nationality or citizenship to their children and need the provision if their children are to be protected.
When the noble Lord, Lord Brett, responded to a very similar amendment in Committee, he acknowledged the powerful arguments for those concessions and agreed that we should hold discussions to see whether the matter could be resolved. We had very useful conversations, for which I am grateful, which gave me the opportunity to deploy the case at greater length. However, in the end, I am sorry to say that government inertia has prevailed. The noble Lord wrote to me on 20 March,
“whilst the government has not sought to justify the actions taken in the 1960s and 1970s it maintains the case that its obligations, legal and otherwise, have been settled by previous compensation awards and by the grant of British citizenship under the British Overseas Territories Act 2002”.
To us, this is a matter of principle. The islanders and their children should have the same rights as they would have enjoyed to transmit citizenship to their children as they would have had if they had not been evicted. That is the least that we can do short of allowing them to return. For this amendment, we have the support of Mr Olivier Bancoult, who was meeting Foreign Office officials just the other day, as well as that of Mr Allen Vincatassin,, the leader of the Crawley group of exiled Chagos islanders.
One of the unfortunate consequences of the present situation is that families are split. Those who are British can of course come to the UK, but they can bring members of the family who are not British here only if they can demonstrate that those close relatives will have no recourse to public funds immediately on arrival. In some families, that has meant that only one parent can come to the UK to work until they can afford to support their spouse, but there are many who cannot or will not leave their partner behind—and why should they? However, the chances of saving enough in Mauritius to meet the public funds test are slim, and the community there remains very impoverished.
The letter from the noble Lord, Lord Brett, refers to the hardship that resulted from what he calls the resettlement of the islanders, but the Government have not lifted a finger to correct the effects of exile in nationality law since Parliament persuaded them to insert Section 6 into the British Overseas Territories Act 2002. Our amendment seeks to rectify that position. I beg to move.
My Lords, I listened carefully to the debate in Committee, and hear the echoes of that in the comments of the noble Lord, Lord Avebury, in moving the amendment. Once again, I express the Government’s sympathy for the way in which the resettlement from the Chagos Islands in the 1960s occurred. The Government regret the way in which the Chagossians were resettled in the 1960s and the hardship that resulted. We understand that, from 1969 onwards, the vast majority of Chagossians who were settled in the British Indian Ocean Territory, principally on the island of Diego Garcia, are now resident in Mauritius.
I also understand that the amendment would give an entitlement to register as a British citizen or a British Overseas Territories citizen to a person whose parent was a citizen of the United Kingdom colonies by virtue of birth in the British Indian Ocean Territory under Section 1 of the British Overseas Territories Act 2002, thus the intended beneficiaries of this provision would be second-generation Chagossians born outside the British Indian Ocean Territory.
I have spoken at length to the noble Lord, Lord Avebury, on this issue, and he will understand the reluctance with which I must disappoint him. He himself referred in Committee on 4 March to ongoing discussions with the Foreign Office on the sensitive issues surrounding the Chagos Islands. I also understand that the all-party Chagos Islands group met on 18 March, which I hope considered the discussions that were held with Gillian Merron. I understand that that group endorsed the noble Lord’s amendments, but held the view that the principal concern of the Chagossians must be the issue of their right to return to British Indian Ocean Territory at some point in the future. This is not something that I can address here; thus, although I am personally deeply sympathetic to the position of second and subsequent generation Chagossians born in Mauritius, I regret that I am not in a position to do anything in the Bill.
The noble Lord, Lord Avebury, has emphasised the importance of citizenship in tabling, and discussing, this amendment, but I hope he will forgive me for requesting that it be dealt with as part of the ongoing discussion with the Foreign Office, where it is only one of the wider issues relating to the United Kingdom’s response to the Chagossians’ plight.
This issue needs to be considered in the longer term, which is why I hope the noble Lord will understand why I ask him—reluctantly—to withdraw his amendment.
My Lords, in response to the point made by the noble Baroness, the High Court judgment given by Lord Justice Ouseley on 9 October was upheld by the Court of Appeal on 22 July 2004. It decided that the compensation paid was in full and final settlement of the Chagossians’ claims, and it was established that the UK had no legal obligation to pay any further compensation.
I do not have in my brief the answer to the question asked by the noble Lord, Lord Ramsbotham, but I will respond to him in writing as a matter of urgency.
My Lords, briefly, I support what my noble friend Lord Ramsbotham has just said. The issue of the Chagos islanders is very serious, and attention has been drawn to it by the use of the former British territory as a base for rendition flights. This is a subject of great political importance to which we shall no doubt wish to return in this House.
My Lords, I thank the noble Lord for his question, not because I can provide an answer on the issue of rendition, but because it allows me the opportunity to respond to the previous question posed by the noble Lord, Lord Ramsbotham. The Government do not agree that a new feasibility study is needed post the 2002 study. I know that this position will not sit well with the noble Lord but that is the position of the Government.
My Lords, the noble Lord, Lord Brett, will realise from the interventions made by the noble Baroness, Lady Hanham, and the noble Lords, Lord Ramsbotham and Lord Bridges, that the interest in the Chagos Islands in your Lordships' House, as in another place, is widespread and continuing. Although we will have to leave the subject here today, this is not the end of it, nor is it the end of the court proceedings. Although the Chagos islanders have taken it as far as they can in our courts, they still have a right of appeal to the European Court, which I understand they will exercise, although that may be several years down the line.
I wish to separate the issue of citizenship from that of the return to the islands. I am reinforced in this opinion by the fact that when the islanders went to the Foreign Office—where they did not see Gillian Merron, but saw her officials—they had a useful discussion, which I believe will continue. However, they deliberately kept off the subject about which we are talking today because no one among the Chagos islanders wishes it to be thought that they would be satisfied, had the Minister agreed to this amendment today, to forgo the demand to return.
I am a little anxious about what he has said about including the citizenship question in the ongoing discussions with the Foreign Office. While I am happy that the Government are prepared to continue the discussion on citizenship, it probably is not the appropriate forum when they are talking to the Foreign Office about the right of return. As I say, we will not get any further with this. For the time being, I beg leave to withdraw the amendment.
Amendment 45 withdrawn.
Amendment 46 had been withdrawn from the Marshalled List.
47: After Clause 43, insert the following new Clause—
(1) The British Nationality Act 1981 (c. 61) is amended as follows.
(2) After section 4C (acquisition by regulation: certain persons born between 1961 and 1983), insert—
“4D Acquisition by registration: legitimacy
(1) A person is entitled to be registered as a British citizen if—
(a) he applies for registration under this section; and(b) he satisfies each of the following conditions.(2) The first condition is that the person was born before 1st July 2006.
(3) The second condition is that the person is not already a British citizen.
(4) The third condition is that the father of the child satisfies any requirements as to proof of paternity prescribed under section 50(9B) of this Act.
(5) The fourth condition is that the person would have been a British citizen had his father been married to his mother at the time of his birth.””
My Lords, this proposed new clause would affect those born in the United Kingdom after 1983 whose fathers are British and whose mothers are neither British nor have settled in the United Kingdom. Before 1983, a child born in the UK was automatically a British citizen. After 1983, there was no entitlement due to birth in the UK. After the passing of Section 9 of the Nationality, Immigration and Asylum Act 2002, this changed, so that children born to British fathers who are not married to the non-British, non-settled mothers are deemed to be born British if their fathers can prove paternity. However, that change affected only those people born after 1 July 2006. It has done nothing for those who were born between 1983 and 2006 in the circumstances I have just described. Therefore, for 23 years we have had the existence of this discrimination against men.
The proposed new clause in Amendment 47 allows those people born to British fathers whose mothers are not married to their fathers and who are not British citizens to register as British citizens if their rights to this derive from paternity. It also assists those who were born outside the UK in similar circumstances. All that the proposed new clause does is address historical discrimination against a small group of British men whose children now suffer from that discrimination.
When I detailed the situation in Committee, the noble Lord, Lord Brett, said that the Government’s position was that this proposal was unnecessary in practice. In a follow-up letter to my noble friend Lord Avebury, the noble Lord, Lord Brett, referred to the discretion which is available under Section 3(1) of the British Nationality Act 1981, which is the discretion to register any child. The noble Lord, Lord Brett, therefore contends that the proposal is unnecessary in relation to children. We agree with that, as Section 3(1) benefits only children. As things stand, some of the children born to those fathers between 1983 and 2006, which is the period we address in this proposed new clause, are now adults. If the amendment were to be accepted, the small number of adults who fall into this gap of some 23 years would benefit from the discretion which was accorded to children under the 1981 Act.
This Government have a good record on anti-discrimination and can only further enhance it if this discrimination against the children of a small group of men is removed through the insertion of this clause. I beg to move.
My Lords, as a keen enthusiast of equal rights, I support this proposed new clause. As has been so clearly set out by the noble Baroness, it applies to a small number of people who are currently being discriminated against. I hope that the Minister has heard the plea and will take action.
My Lords, I thank noble Lords for their contributions to the debate. I appreciate the concerns about discrimination which have led to the amendment being tabled and carrying support from other Benches. The new clause would enable registration by any person born illegitimately to a male British citizen before 2006. In order to explain the Government’s position, it is necessary for me to refer back to when the law changed on 1 July 2006, enabling British citizen fathers to pass on their citizenship to a child born to them out of wedlock. The change was not made retrospectively as it was felt that this could create difficulties for those affected in relation to any other citizenship they held. The Secretary of State currently exercises discretion in the case of those born to illegitimate fathers, and discretion is exercised under the broad remit of Section 3(1) of the Act to enable the registration of children born before 1 July 2006 who are the illegitimate children of British citizens or settled fathers. That has been the case since the Family Reform Act removed any distinction between legitimate and illegitimate children in other areas of law in 1987.
The exercise of discretion under Section 3(1) applies only to those who are minors on the date of application for British citizenship. There is no power in law to register as a British citizen a person who was born illegitimately to a British citizen father before 2006 and who is now an adult, a case powerfully made in Committee and rehearsed again today. We accept that those who were born illegitimately to British citizen fathers were at a disadvantage compared with those whose parents were married. As such, although we are unable to accept the amendment, the Government will consider further the points made in today’s debate. I am grateful to noble Lords for raising the issue and I expect that there will be further opportunities to consider it during the passage of the Bill. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.
My Lords, I am encouraged by the Minister’s response. As the noble Baroness, Lady Howe, said, this is deeply discriminatory against a small group of men. I am, however, reassured that we will continue to hold discussions during the Bill’s passage. I thank other noble Lords who have spoken, and I beg leave to withdraw the amendment.
Amendment 47 withdrawn.
Amendment 48 had been withdrawn from the Marshalled List.
Clause 45 : Good character requirement
49: Clause 45, page 38, line 5, after “3(1)” insert “, (2)”
Amendment 50, as an amendment to Amendment 49, not moved.
Amendment 49 agreed.
51: Clause 45, page 38, line 21, leave out subsection (2)
My Lords, we really thought that the Government were getting somewhere with this amendment in Committee when the Minister agreed to reconsider the issue. The good character test was not a core principle of nationality law, as he asserted in his letter of 20 March, but was introduced less than three years ago when Section 58 of the Immigration, Asylum and Nationality Act 2006 came into force. The Minister also said that the number of women still alive who are potential beneficiaries of the Hong Kong (War Wives and Widows) Act 1996 was very small and that, in the event that an application was received, the Government would consider exercising discretion to waive the test. I wonder why the Government wriggle so hard to avoid this disrespectful and insensitive approach to a minute group of women whose husbands fought in defence of Hong Kong in the Second World War.
Three years ago, the noble Baroness, Lady Ashton of Upholland, told the House:
“we believe that we have brought them all into the system in one way or another”.—[Official Report, 7/2/06; col. 621.]
Now the noble Lord, Lord Brett, says that there may be only one left alive. If there is one 85 year-old left who might theoretically apply for British citizenship, is she really such a potential threat to the state that we cannot agree not to subject her to this test under any circumstances? The Government are re-enacting the power to impose the test, and we are merely saying that if the words in subsection (2) are omitted, that power lapses, giving effect to the undertaking in the Minister’s letter. It would be perverse in the extreme to insist on retaining this provision to guard against the extremely unlikely event that, after this Bill, an ancient widow satisfying the requirements of the 1996 Act, but with a string of convictions, will appear from nowhere and turn up here, armed with her brand new passport, to demonstrate violently against the G20. We owe it to the memory of our servicemen to remove this insult from the Bill. I beg to move.
My Lords, I hope that the Government will be able to accept the amendment. As the noble Lord, Lord Avebury, said, we are talking about a very limited number of people; probably only one person is known to be alive. This matter has taken up the time of the House twice now, because the Government have refused so far to give in. Even if there were another 20, 30 or 50 people who might suddenly appear out of the woodwork, surely to goodness this matter should not exercise the time of the House any longer. I am sure that the Government will accept the amendment. I would be extremely surprised if they did not. On a matter of such de minimis proportions, the Government should be prepared to take their hands off and leave it to find its own way through.
My Lords, if the previous amendment was small, this one, in comparison, is tiny. However, it is of equal importance. I entirely agree with the comment that this restriction is an insult to people who have served this country well. I add my support to the amendment.
My Lords, for the record, the Hong Kong (War Wives and Widows) Act came into operation on 18 July 1996 to provide discretionary registration as British citizens of the wives, widows and divorcees of men who fought in the defence of Hong Kong during the Second World War. To be eligible for registration, a woman would have to be resident in Hong Kong, a recipient of a letter from the Home Secretary confirming that she could stay in the UK on the basis of her partner’s wartime service and, if she was no longer married to the man concerned, had not remarried.
The 1996 Act is unusual legislation in that it applies only to this very small and finite number of women. It can only ever have affected a maximum of 53, which is the number of ladies who were offered and received the United Kingdom settlement letters. In practice, we expect that most, if not all, of the original 53 who wanted to apply to become UK citizens have done so because there have been no applications under the Act for the past eight years. Whether or not only one or two women are now eligible, the number, as the noble Baroness says, is very small.
Having said that, we have no information to suggest that the good character requirement would be a barrier for them. Let us start from the premise that they are the widows of heroes. That is why the Home Secretary has indicated that she would in any case be prepared to consider exercising discretion on the good character requirement of the application should any of these ladies apply in future and the issue arise. This will mean that even if one of them might have committed an offence which would prevent her meeting the good character requirement in normal circumstances, the Home Secretary would be willing to consider overlooking it because this is a specific and deserving group. We have, rightly, been generous to them, and will continue to be generous. It is also worth mentioning that, as for most other applications for citizenship, there is no fee for registration under the 1996 Act, so that those qualifying are already treated favourably in comparison with other applications for citizenship.
We are resolving the problem behind the amendment—the small number of women likely to become party to the requirement to exercise discretion—and we have said that we are prepared to do that. We are not prepared to amend the law, however, because of the broader principle that is at stake. We are of the view that British citizenship should be acquired by those who demonstrate their suitability for that status.
In moving his amendment, the noble Lord suggested that this was an issue that had come out of the 1996 war widows Act, but in practice this had been in operation since 1983 when the good character requirement was introduced. To remove the legal requirement in this case, having resolved people’s concerns and difficulties that lay behind it, would set a precedent for removing it from other sections where we think it is an important requirement for potential citizens to fulfil. Removing the test might be the aim of some people, but in practice we are resolving the problem while making it clear that there is a need to retain the principle.
We do not see that there is any threat from this particular group—they are elderly wives and widows of Hong Kong war heroes—which is why the Home Secretary has agreed to exercise her discretion in their favour. However, the Government make no apology for the general application of that test. It is entirely right that we should not extend our citizenship to those who have shown by their behaviour that they do not deserve it; that is an entirely reasonable protection of our nation and the British public. Having seen and heard the argument, however, the Government have responded to ensure that the war widows involved, should they make an application, will not be subject to the application of the test and that discretion will be operated by the Home Secretary in their favour. I therefore believe that we have resolved the issue that moved noble Lords to be concerned, and I would be grateful if the noble Lord withdrew his amendment.
My Lords, is that discretion a commitment on all Home Secretaries that they should exercise a discretion, or is it just something that will be raised for today and perhaps used once? I worry about discretion. I am not sure how far a commitment made in this House that the Home Secretary will use the discretion can be pinned forward into the future.
My Lords, the noble Baroness has asked a practical question. The ladies concerned have to be 80 years of age plus, and mortality is taking its toll—it takes its toll on Home Secretaries too, as well as on Ministers from other departments—but I do not believe that any future Home Secretary would want to exercise discretion in a different manner, given the arguments put forward here for the ladies concerned and the fact that we know that there are very few of them, if any. Any applications likely to be made must be made in a relatively short period if mortality is not to remove the problem completely.
My Lords, as the Minister said, we are talking about widows of war heroes. We are disagreeing only about the method by which we grant them a passport: whether it should be done as we suggest in this amendment or by the exercise of the discretion of the Home Secretary, as the Minister has said. He then went on to say that the Government are not prepared to amend the law to benefit this one small group of people—but we are talking about an amendment that has been put down by the Government. It is plain that in Clause 45 the Government are advocating that we change the wording in the Hong Kong (War Wives and Widows) Act:
“In section 1 of the Hong Kong (War Wives and Widows) Act 1996 … in subsection (1) … omit ‘and’”,
and so on. We are suggesting leaving out those words so that the effect we want is achieved. In that way, the 85 year-old lady who has been in possession of a letter from the Home Secretary will be able, along with the 53 others who received it, to come to this country and get a British passport without further ado. The Minister is saying that even if this lady happens to have committed an offence, the Secretary of State will still exercise discretion, but we are putting this lady in the position of having to make the application and for this test to be applied. That is an indignity to which she should not be subjected. Obviously, we are not going to win the argument this afternoon, so with great regret, I beg leave to withdraw the amendment.
Amendment 51 withdrawn.
Clause 46 : Meaning of references to being in breach of immigration laws
Amendment 52 not moved.
Clause 48 : Common Travel Area
Amendment 53 had been withdrawn from the Marshalled List.
54: Clause 48, leave out Clause 48
My Lords, I thank the Minister and his Bill team for their help and co-operation in attempting to explain to me why they feel that the Government need to have this clause in the Bill. I declare an interest, as an inhabitant of Northern Ireland—I am never quite sure about these interest things. I spent Sunday night, Monday and part of Tuesday in Donegal at the British-Irish Parliamentary Assembly. It was attended by members of the Governments of the Channel Islands—Guernsey and Jersey—the Republic, Wales, Scotland, Northern Ireland and even one or two from here. When I first walked into the room, I was greeted by members of the Crown dependency Governments and congratulated on the speech I made about this on Second Reading. Every single man-jack of them is pretty anti this provision.
Let us get down to basics. Why do the Government consider that they need this massive hit operation of removing a travel area which is a form of an agreement between the United Kingdom and its integral parts? Those include the Crown dependencies which have different constitutions and relationships with Her Majesty's Government, the Republic of Ireland—again, a sovereign Government and state in its own right; that has changed since the 1920s when the common travel area was set up—and Northern Ireland.
It occasionally gets forgotten that Northern Ireland is as integral a part of the United Kingdom as Yorkshire or Lancashire. I do not know what the Yorkshireman and the Lancashire folk would feel if they had to provide identification in the form of passports to travel from one county to the other. That is effectively what this Bill is doing for the Northern Ireland folk. Over the years we have had free travel, which has worked wonderfully. The reason that it was necessary and still is necessary is that those who benefit from it are, largely, the poorest in our society. A large number of people from both Ireland and Northern Ireland earn their living in England and Scotland—not so much in Wales. They need to be able to travel freely, easily and without hassle to see their families from time to time when they can.
Most of the Premier League football clubs have many supporters in the island of Ireland, who travel every week to the mainland. They do not travel on aeroplanes very often—though some may do; they travel on boats and ferries in their thousands from, for example, Rosslare to Fishguard, or Dublin to Holyhead, and the various ports in the north into the various ports on the Clyde. We are talking about a large number of people. I know that the Government have statistics on how many people travelling by air hold passports, but that is quite irrelevant.
The Government have told me that they are not going to remove the common travel area. I talked yesterday to the Minister and the noble Lord, Lord Brett, and their officials, but I simply do not understand the position. I have spent much of today trying to work out exactly what the Bill does in amending the 1971 Act. I got myself so mixed up that I went and sought help from none other than my noble friend Lord Kingsland. It took him 10 or 15 minutes to fiddle his way through it and work it out, and he has a legal brain that is three times the size of mine. At the end of the day, the Bill clearly tells us that the Government intend to remove the common travel area. At the same time, there are places where they will not require passports—although they might—and there are places where they do not quite know what they want, but they may want some form of identification. Surprisingly, a number of MPs—and, indeed, my noble friend Lord Cope—attending the British-Irish Parliamentary Assembly were seized on by a gentleman at George Best Belfast City Airport and asked for passports. I have never been asked for a passport going in or out of there in my life, but somebody jumped the gun then. It was an example of what might happen.
The Minister has said that the Government have no intention of doing anything on the land border, but when one listens a little longer and looks a little further, one finds that they might be doing something. They state:
“We have made clear that we have no plans to introduce traditional fixed immigration controls on all air and sea routes between the Republic of Ireland and the United Kingdom at this stage”.
An Irish official to whom I spoke said that “at this stage” is not part of the Anglo-Irish agreement, that it should not be there, and that the Irish are clear that they will not be doing it.
The Government also say:
“We will not—for very obvious practical and political reasons—introduce fixed or routine immigration controls, data capture on journeys within the e-Borders programme or any requirement to carry a passport or national identity card when travelling over the land border between the Republic of Ireland and Northern Ireland”.
However, they also state:
“We do propose, however, to increase intelligence led interventions in Northern Ireland to tackle illegal immigration”.
I suggest that, compared with the terrorist days, which look as though they are creeping back, that is an irrelevance.
At the moment, the land border can be managed, and is managed, very well by two of the finest police forces in these islands—the Garda Siochana in the Republic of Ireland and the PSNI in the north of Ireland, added to which they both have the support of their own nation’s intelligence services. All four of those bodies work together, so what do we want a border agency for up there? We do not want to tell people who are travelling backwards and forwards that they are liable to be stopped and asked for passports, because all that will do is to raise the temperature in the north of Ireland particularly.
I explained to the Minister this morning that the people of Northern Ireland will see this part of this Bill as another way of getting rid of them out of the United Kingdom. I am afraid that, whether you shake your heads or not, that is how it is perceived. I could talk to you very civilly and say that maybe it is not like that, but that is how the people in Belfast, Armagh and Londonderry will see it—as another imposition and another move one step away from the unity with this nation and this Parliament for which most of those in Northern Ireland have been fighting for the past 40 years.
A number of impositions have been put on the Crown dependencies by this Government in recent years, so much so that they are seriously taking legal advice on how they can cease to be Crown dependencies and get their independence. I cannot believe that that would be a good thing for this nation. It is very important that we maintain the relationship, and I seriously advise your Lordships that to allow this clause to stay in the Bill would be something we would seriously regret. If we go further on policing, my argument is that of the large number of people who travel—and I am sorry that I do not have the numbers handy—including all our football fans, business people who come in and out and everybody else, the number of criminals who travel is very small.
During the Troubles, if I can call them that, we had special service people and intelligence people at the airports. We were always met at the gates by Special Branch, and we understood why. Nobody ever objected. We were occasionally stopped, if they did not know who we were or there was somebody whom they were not happy about. I assume, from knowing a little about that business, that they had seen photographs of people they were looking for; it was a guided and precise operation that they were carrying out. To leave behind that precise and extremely efficient operation and turn it into a mass-scale operation, as this Bill will do, is nuts, because that will be far less effective than having focused, specialist people looking for the drug dealers and illegal immigrants, who are a small number, although they are very dangerous, and for al-Qaeda or whatever form of terrorists.
I leave the matter with your Lordships but, as far as I am concerned, this clause should be removed from the Bill. I beg to move.
My Lords, I support Amendment 54 and will speak to my two amendments after Clause 48 in the group.
The House had an extensive debate on the common travel area in Committee. We now support the noble Lord, Lord Glentoran, in all the concerns he has raised under Amendment 54. The reforms proposed in Clause 48 could end the CTA as a passport-free zone, as the noble Lord said, with the Government including full routine passport controls on all air and sea routes between the Republic of Ireland and the UK, including Northern Ireland.
The Government have said very little about the costs and practicalities of this scheme during previous debates on the subject, but I thank them for their letter of 19 March, which goes into more detail. The Government's plans are costed at between £67 million and £76 million over 10 years. Does that really provide good value for money? Is there currently the physical space for full immigration checks in some of the smaller ports and airports within the UK? It is perhaps surprising that nowhere in the impact assessments prepared for the Bill or the consultation entitled Strengthening the Common Travel Area is it explained why resources should be directed at this internal border rather than the external borders of the common travel area where people subject to immigration control are first controlled. The impact assessment described the intended benefits of the proposals as,
“Reduction in imported asylum cases and abuse of immigration system.
Increased border security.
Reduction in number of illegal migrants and potential reduction in illegal working.
Reduction in cross border crime (including serious organised crime)”.
As the impact assessment is candid enough to state, none of those proposed benefits has been quantified. Whether resources are to be diverted from the external borders of the common travel area, or given to this new measure rather than to the external border is not clear. A “border”, in true Humpty-Dumpty fashion, appears to mean what we want it to mean in a particular bullet point.
The most dramatic effect of the reimposition of controls will be on those not subject to immigration control. There will clearly be a considerable socioeconomic impact on CTA nationals who travel between the UK and Ireland, as the noble Lord, Lord Glentoran, pointed out, and who do not have either passports or UK identity cards, but will now have to purchase them. As the Minister himself admits in his letter of 19 March:
“There may be more significant impacts on leisure travel as all passengers will require passports in order to travel to the UK”.
Given the current economic climate, it is unfortunate that the Government are introducing a measure which will result in an estimated £43.5 million loss to the tourism industry. Tourism is one of the most important sectors of the Northern Irish economy and to introduce a measure which could damage that industry during these current economic difficulties is, quite frankly, bordering on the irresponsible.
Amendments 55A and 55B deal specifically with the question of the land border. They are alternatives, dependent on the decision of the House on leaving out Clause 48. Despite the Government stating their intention for CTA passport control to only be introduced on air and sea routes, that is not, as the noble Lord, Lord Glentoran, said, explicit in the Bill. At present, Section 1(3) of the 1971 Act prevents all CTA journeys being subjected to control under the same Act. Clause 48 removes all reference to not subjecting CTA/UK journeys to control. The Bill therefore actually has the effect of removing in its entirety the law that prevents CTA routes being subject to control. While the control arrangements detailed in Schedule 2 to the 1971 Act refer to and are understood as usually applying to air and sea routes, the Government can, through an Order in Council, determine otherwise. Amendment 55B would prevent such an order placing immigration controls on the land border.
In Committee, the House considered an amendment similar to Amendment 55A. I do not intend to repeat all the arguments made at that stage. The Minister gave the clearest details to date on how the mobile checkpoints proposed by the Government will operate. Arguing that passengers will be selected on the basis of “intelligence and risk”, he outlined that on the busy main Belfast-Dublin route the UKBA would,
“target the odd bus, minibus or taxi, because our experience has shown that those are much more likely to be a threat”.
Regardless of whether a Government decide to bring in an actual duty to carry a document when crossing the land border, clearly all those stopped under enforcement operations will be expected to satisfy Border Agency officers that they are British or Irish citizens through producing passports, other ID documents or otherwise establishing their bona fides. Non-CTA nationals will also be expected to fulfil this requirement. Even if there is no actual document requirement, there would be a de facto document requirement. The Government have not yet addressed how a person is expected to satisfy a UKBA official that they are either British or Irish citizens.
We hear the reassuring words of the Minister that the Government,
“do not employ racial profiling”. —[Official Report, 4/3/09; col.758.]
However, as was said in Committee, the clear question in the context of ethnic diversity is how those policing the land border will be able to tell who is a British or Irish citizen and who is not. Who, on indicating that they are not carrying any documents, which the Government say they have no obligation to do, will be allowed to proceed and who will be subject to further examination and even arrest and detention until identity is verified? If non-CTA nationals are expected to carry passports or ID cards and British and Irish citizens are expected to carry a document, how will UKBA patrols know who is compelled to carry a passport and who is not? The Government have still not provided an answer on whether a Northern Ireland driving licence would be acceptable as proof of CTA nationality.
Despite the Government stating the intention for CTA passport control to be introduced only on air and sea routes, this is not explicit in the Bill, as the noble Lord, Lord Glentoran, said. Amendments 55A and 55B are needed to avoid the sort of confusion that I have spoken of this afternoon.
My Lords, I support Amendment 54. In its report on Part 3 of the Bill, published on 12 March, your Lordships’ Select Committee on the Constitution examined the effect of the Bill’s proposals to introduce changes to the common travel area, which, as the noble Lord, Lord Smith of Clifton, has told us, has existed since the 1920s, enabling people to move freely between the United Kingdom, the Republic of Ireland and the Crown dependencies—Guernsey, Jersey and the Isle of Man—without being subject to immigration control, as set out in Section 1(3) of the Immigration Act 1971. The citizens of the Crown dependencies are of course not represented here at Westminster.
That Select Committee sought to draw the attention of the House to our view that there does not appear to have been open, effective and meaningful intergovernmental consultation by the United Kingdom Government with the insular authorities in advance of the introduction of the Bill. We found that such consultation as did take place gave the impression of being muddled and tardy, showing little appreciation of the constitutional relationship between the United Kingdom and the Crown dependencies. The Chief Minister of Jersey told your Lordships’ Select Committee that there is a mismatch between the policy intent and the possible effects of the legislative change. This, he said,
“opens the way, at any time of the UK Government's choosing, for the significant change of practice that they say they do not presently envisage”.
The Chief Minister added:
“There are absolutely no safeguards to prevent such controls being implemented or to protect the long-standing rights of Channel Islanders to travel freely to the United Kingdom, in accordance with their constitutional relationship as set out in numerous Royal Charters”.
The Chief Minister agreed,
“with the view that the proposed powers are excessive in comparison with the policy intent and are therefore inappropriate”.
Your Lordships’ Select Committee found that it was,
“difficult to reconcile the modest policy aims stated by the Government (of occasionally, on the basis of intelligence, stopping and questioning people arriving from or departing to the Crown dependencies) with the far-reaching legal powers claimed by the proposed amendment to section 1 of the Immigration Act 1971 (which would enable fixed and routine border controls). This mismatch is in and of itself constitutionally inappropriate: Parliament should not grant to Government wide legal authority in excess of the powers properly needed to implement a proposed policy”.
Your Lordships’ committee concluded that,
“the policy-making process that has led to … clause 48 has not been informed by any real appreciation of the constitutional status of the Crown dependencies or the rights of free movement of Islanders”.
I am extremely grateful to the noble Lords, Lord West and Lord Brett, for discussing these matters with me yesterday. I understand that they were at that time unsighted, through no fault of their own, as to the attitude of all the insular authorities following the belated consultation on the proposal of a Memorandum of Understanding, to which the Isle of Man and the Guernsey authorities are agreeable but Jersey is not.
Senator Le Sueur, the Chief Minister of the States of Jersey, wrote to the noble Lord, Lord West, on 27 March. They are not represented at Westminster so I crave your Lordships’ indulgence in quoting one or two paragraphs from it. The letter states:
“In principle, we … support the need for increased supervision of the routes within the British Islands and the need for authorised persons to act on specific intelligence. Our Customs and Immigration service and Police actively cooperate with UK officers to share information for this purpose and to take action when appropriate. We welcome further initiatives, such as e-borders, which will strengthen our mutual cooperation.
However, the government of Jersey cannot accede to a position in which British citizens resident in one part of the British islands could be treated as if they were nationals of a foreign state such as the Republic of Ireland. If the text of the proposed Bill is adopted, it sets out such a distinction in substantive legislation to which we are strongly opposed.
You maintain the UK government has no intention of changing the constitutional relationship with the Crown Dependencies but clause 48 does precisely that. The unwritten constitutional relationship is founded upon Charters which have been renewed on many occasions by successive sovereigns until 1688 when they (and many other charter rights of English citizens) were definitively affirmed. I cannot imagine that the UK government would ever contemplate peremptorily withdrawing the constitutional rights of citizens of the United Kingdom. … It is also unclear to me how the proposed legislative change is consistent with the United Kingdom’s obligations under Article 13 of the Universal Declaration of Human Rights, Article 12 of the International Covenant on Civil and Political Rights and, although the Protocol is only signed and not yet ratified, Articles 2 and 3 of Protocol 4 of the European Convention on Human Rights. I would value your response on those points.
Whilst the government of Jersey fully understands the current policy intention not to introduce fixed or routine border controls, the substance of the legislation would provide for such controls”.
He continues that he would respectfully suggest that,
“the opportunity might be taken to reconsider this matter and to include alternative legislative provisions”.
Hear, hear, to that. He concludes:
“We understand the need to ensure that the UK’s security is protected and are pleased that you are equally willing to protect Jersey’s rights. However I am not convinced that the proposal to develop a Memorandum of Understanding which ‘affirms [the UK] policy intentions in this area and sets out how [the UK] will manage the necessary processes’ will meet all of our needs. While we are naturally comforted by the policy intention upon which the proposal for an MoU is based, the essential problem with an MoU is that such a document in itself confirms by necessary implication that the existing Charters and constitutional relationship will have been overridden as the MoU only comes into existence at all because the Bill contains a clause which is inconsistent with them. It is also not clear how much comfort could be derived from a Memorandum of Understanding, which may be withdrawn unilaterally at any future date”.
Parliament does not like memoranda of understanding, which can be ignored or repudiated by Governments, present or future, at any time of their choosing and, in the present case, will not have been subject to any parliamentary scrutiny of any sort whatever. It must surely be right for the Government to come forward with amendments in place of Clause 48 that give effect to its policies, with parliamentary approval.
My Lords, I, too, support Amendment 54. The 1969 Royal Commission on the Constitution—the Kilbrandon commission—explained at paragraph 1360 that the constitutional position of the Channel Islands and the Isle of Man is “unique”; but unique as the status of the islands undoubtedly is, general constitutional principles must apply to legislation which relates to them. It is, in my view, wrong in principle for the Government to invite this House to approve a clause that confers powers that are far wider than the Government wish to exercise, when the width of the powers that would be conferred affect fundamental and historic rights to freedom of movement. That is undoubtedly the position in relation to Clause 48.
The Government should ensure and can easily ensure with the aid of expert parliamentary draftsmen that Clause 48 expressly specifies what the Minister himself has stated unequivocally to be the intention. The intention is that the controls introduced in relation to travel to and from the Channel Islands and the Isle of Man will not require passengers to carry a passport or an identity document, and that the power to impose controls may be exercised only for the purpose of implementing risk-based intelligence. That is what the Minister told the Chief Minister of Jersey in his letter of 19 March. The Minister suggested in that same letter that it would not be possible for the clause to limit or restrict the frequency with which the powers are used, and I respectfully agree. However, it is surely possible and necessary to limit, in the words of the clause, the purposes for which the powers may be used and the nature of the powers that may be used.
The Minister’s letter then suggests—the noble Lord, Lord Goodlad, has dealt with this already—that the breadth of the powers to be conferred by Clause 48 need not cause concern because the Minister will work with the Crown dependencies to produce a memorandum of understanding. With respect, that is not an adequate answer. In principle, this House should not approve excessive powers for Ministers because they agree to limit their powers through a document which has no legal force, which in any event cannot bind either them or their successors, and which is not subject to any parliamentary control.
Furthermore, I hope the Minister will understand that the House may have little confidence in the value of his assurances, however well intended they are—and I am sure that they are—about discussions with Crown dependencies, in the light of the history of Clause 48. As he knows, his predecessors gave assurances to the Crown dependencies that there would be proper consultation on matters affecting their interests. His letter of 19 March recognised and accepted that those assurances, sadly, were not met. As the letter acknowledged, with a large dose of Civil Service understatement,
“consultation has not been ideal”.
The Minister then suggested in answers to questions from your Lordships’ Constitution Committee that it would not be possible to differentiate in the Bill between the provision made in relation to Jersey, Guernsey and the Isle of Man, and the provision made in relation to the Republic of Ireland, where Ministers see a need for far more extensive powers. I do not understand why the drafting of Clause 48 cannot differentiate in that respect. There are significant distinctions. Ministers regard the concerns in relation to travel to the Republic of Ireland as far more extensive than in relation to Jersey, Guernsey and the Isle of Man. Of course our constitutional relationship with the islands is very different to our relationship with the Republic of Ireland, which is a foreign state. As the noble Lord, Lord Goodlad, pointed out, your Lordships’ Constitution Committee issued a report making many of these points and concluded that it would be constitutionally inappropriate for Parliament to grant to the Government wide legal powers in excess of those properly needed to implement the Government’s stated policy.
I ask the Minister to give the House an assurance that he will instruct parliamentary draftsmen now to produce a new version of Clause 48 that more specifically reflects his own, entirely valid, policy intentions to enable border controls to act on intelligence which identifies a security risk to a particular arrival or a particular passenger. If the Minister declines to give that assurance, I hope that the House will reject this clause.
My Lords, one group of people have not been mentioned so far in this discussion. I refer to the very large number of people resident in England, and sometimes in Wales and Scotland, many of whom are British citizens but of Irish descent. They therefore frequently wish to visit the Republic of Ireland to have a holiday or to maintain their family links and connections. It seems that the Government are imposing obligations on this group, and indeed on other groups, far in excess of any possible security, intelligence or immigration control that could be expected to arise. I urge the Government to withdraw this clause and to come back with something far better drafted when we eventually get the so-called simplification Bill.
My Lords, first, I apologise for intervening for the first time in this Bill at Report stage. With respect, I found the Minister’s arguments in Committee less than satisfactory. However, I am probably one of those Members of this House who, as a rule, are most inclined to support the authorities in their efforts to fight terrorism, crime and so on. I do so both by temperament and from my experience in government.
I also have the honour to represent your Lordships’ House, among others, on the British-Irish Parliamentary Assembly. As my noble friend Lord Glentoran mentioned, I was there earlier this week. I found a good deal of, first, confusion and, secondly, concern among the parliamentary representatives of both the Republic of Ireland—and, for that matter, Northern Ireland—and the Crown dependencies who were present. They were nearly all Back-Bench representatives of their various Parliaments and Assemblies.
With regard to the confusion of the meaning, to which my noble friend Lord Glentoran referred, it seems to me, although I am not a lawyer, absolutely clear that the effect of this clause is to subject to control under the immigration Acts those arriving in the UK from any of the islands or the Republic of Ireland. That is clearly what it does. It takes out the words which stop them being under the control of the Immigration Act 1971 and all that has flowed from it since. At the same time, it also says that they shall not require leave to enter the United Kingdom on so arriving, and it refers to that as the “common travel area”. That is the source of the confusion: the immigration Acts apply but, on the other hand, people are free to come and go. That, I think, is the first difficulty in all this.
So far as concerns my journey to Northern Ireland and onwards to Donegal, my noble friend Lord Glentoran said that I was seized upon at Belfast City Airport. If I may say so respectfully to my noble friend, that is a bit of an exaggeration, although a gentleman in a nice suit asked me for my passport or some identification. Although it was not at all obvious from any uniform or anything else, I believe that he belonged to the UK Border Agency. I produced a House of Lords pass.
My Lords, I do not suppose that he had seen one before but he accepted it immediately as sufficient to allow me to proceed. However, in a way, that is the smallest of the matters that we are concerned about.
The Minister said in Committee that it is very difficult, or effectively impossible, to impose on the land border controls of the sort that can be imposed on sea and air journeys. All of us who know the land border know that that is obvious. Anyone can wander backwards and forwards across the land border extremely freely in many, many places, and they do so all the time for every possible daily purpose. The only people who are not allowed to cross the land border are policemen on duty in either jurisdiction. They are forbidden to do so and do not do it, but everybody else wanders freely backwards and forwards for every possible purpose. When petrol is cheaper on one side or the other they buy it on the appropriate side. So, that is agreed to be an impossibility.
At the same time, the Minister said in Committee—I am paraphrasing—that that was why we may have immigration controls on those going between Great Britain and Northern Ireland. He said:
the routes between Great Britain and Northern Ireland—
“offer the most suitable screening and intervention opportunities to address vulnerabilities from those crossing the land border between the Republic of Ireland and Northern Ireland”.—[Official Report, 4/3/09; col. 769.]
In other words, for this purpose the Government are moving the border between the Republic and the rest of us from the land border to the Irish Sea. That is what concerns many of those who live in Northern Ireland and who have gone to considerable trouble, to put it at its mildest, to ensure that the land border remains the border and that the crossing is not seen as the actual border, although that was the implication of the Minister’s remarks at the time.
I have to report that the representatives of both the Dáil and the Senate of the Republic of Ireland, and people from various parts of the United Kingdom and the islands, were concerned about what that meant and what would happen in effect. The noble Lord, Lord Pannick, made an important point when he drew our attention to the wide powers that have been taken even though it is said that only a fraction of those powers are required or will ever be used. We have all heard Governments say, “We will take this power but we are not going to use it very much”. But, once a Government have a power, before long there will be a temptation to use it to the full.
With regard to the islands—the Crown dependencies—one of the factors that I encountered in talking to their representatives was that they feel under pressure at the moment in any case. As is well known, the economy of the Crown dependencies depends to a considerable extent on two factors—financial services on one hand and tourism on the other. If passports are required to travel to them, which is the power being taken here, they fear that tourism will be affected. At the same time, their financial services industry is under attack on grounds of tax avoidance. They are nervous that the Government are moving against them on more than one front. This is only part of the reason for their nervousness. Those problems add to the difficulties that they, like every other country, are experiencing as a result of the economic problems that we all know so much about.
They are unhappy for those reasons as well as the constitutional ones advanced by my noble friend Lord Goodlad and the noble Lord, Lord Pannick, from the Cross Benches. The Government’s arguments for the clause have so far been less than satisfactory and I hope that they will rethink it.
My Lords, I spoke on this subject some time ago, but not in Committee. I find it interesting to follow the noble Lord, Lord Cope, with his experience of travelling into Northern Ireland at the weekend. People are not usually challenged by anyone at Belfast City Airport unless they are behaving peculiarly or look suspicious. I am surprised that the noble Lord, Lord Cope, complied with those criteria. In any case, he was very welcome.
I have previously pointed out that the common travel area within the United Kingdom and the Republic of Ireland is important to retain for those in Northern Ireland and for those in the Republic of Ireland who have so many interests here in Great Britain—whether in family relations, which have been mentioned, or in trade and business. The Republic of Ireland has become more integrated into the United Kingdom than it was in 1921 when it left the United Kingdom. The economy of the Republic today is more British than it ever was.
In sport, thousands come every weekend not only to Premier League matches in England but, even more so, to greater matches for Rangers and Celtic in Glasgow—boatloads, thousands of people go across very often. The common travel area is very important to retain. The real problem—there was an example of this recently—is the fact that controls on entering the Republic of Ireland from other foreign countries are not the same as those on entering from the United Kingdom, especially Great Britain. Not too long ago, 100 Bolivians entered the Republic of Ireland illegally and tried to enter the United Kingdom via Fishguard, where they were observed. Had they had any wit, instead of trying to enter through Fishguard, they would have travelled freely into the United Kingdom via the land border between Northern Ireland and the Republic of Ireland. That is the way in which many criminals and terrorists seize the opportunity to go to Scotland or England—via Northern Ireland.
I am not suggesting for one minute that we should have controls on the border between Northern Ireland and the Republic. I am suggesting that the answer to this problem is simple: proper negotiations between the United Kingdom and the Republic of Ireland, with the Republic of Ireland applying the same strict entry requirements at its airports and seaports as apply here in the United Kingdom.
I agree with the noble Lord, Lord Glentoran: it is offensive if it is suggested that the people of Northern Ireland are to be treated differently from people elsewhere in the United Kingdom. Is that because there is water between Northern Ireland and England? If so, why are the people of the Isle of Wight not treated differently?
My Lords, as a member of the Constitution Committee, I express two concerns about aspects of the issue that arose during our deliberations. The first is the, frankly, rather appalling way in which the whole consultation process has taken place on a Bill that raises considerable, if not profound, concerns for those in the Crown dependencies. However, I accept that my noble friend has honestly and honourably admitted that fact in his correspondence.
Having listened to all those who have spoken today, I still cannot get away from my second point. It is not that I do not believe that Ministers today will uphold their firm and absolute guarantee that they do not wish to change the passport arrangements with those from the Channel Islands. I believe that that is a clear and honourable guarantee and assurance. Frankly, however, it can be changed by a future Minister without any reference to either House. It is not that the guarantee is not good—it is—but Ministers can change it by executive action rather than by any referral to this House.
I ask my noble friend to consider whether it would be possible to include provision in the Bill that an order-making power of some kind is required before a future Minister can change that arrangement, so that an order can be brought before both Houses to get parliamentary approval if, for some reason that we do not yet understand, there may be a need in future to change the arrangements that currently Ministers are saying will not be changed. I therefore hope that when my noble friend replies, he will keep an open mind on the possibility of amending the Bill in a manner that at least reintroduces proper parliamentary approval for any changes that might be made in the future to the relationship between the Crown dependencies and the United Kingdom.
My Lords, I indicated in Committee some of the difficulties that the noble Lord, Lord West, and the Government might face, not least in respect of the recent meeting of the British-Irish Parliamentary Assembly. I indicated that I had been interested in the security problems of the border and I take this opportunity to thank the noble Lord, Lord Kilclooney, for reminding me of the subject some time back on the occasion to which he alluded a moment or two ago.
It is a classic utility of this House that people say things, which you remember four or five months later, that pertain to new matters. I warned the Government in Committee that they needed to prepare at least Irish Ministers, who might be asked questions about these matters, in advance of the occasion. It is quite clear to me from the report of my noble friend Lord Cope and the opening remarks of my noble friend Lord Glentoran that unease still obtains in the Channel Islands, in the Republic and in Northern Ireland. I in no way blame the Irish Government—they have not been able to get over what is happening—for what occurred, if it did occur, at the meeting in Donegal.
I am sympathetic to the views, which my noble friend Lord Cope indicated, about the significance of where the border is and the fact that it is a border. When he referred to the people who go backwards and forwards across the border every day, I said to myself in my corner of this Chamber that not only people but animals do that. Indeed, one of the interesting issues during our debates on the Hunting Bill was how on earth the Government of either country could control the behaviour of hunts in Northern Ireland if they were subject to the present provisions. If hounds took off, they could easily find themselves 10 miles across the border before they could be brought back.
I remember one memorable moment in the other place; the rejoinder to this will require some familiarity with former Northern Ireland affairs. Bees were crossing the border in large numbers and there was an issue as to what was to be done. Some wag called out in the midst of Oral Questions, “Send for the Bee Specials”. The B Specials were, of course, the original force in the Province.
There is a need to convince the interested parties that everything is being done fairly and to ensure that they understand it. I will give a couple of instances that relate to the seemingly irrelevant issue of notionally and virtually moving the border from where its 320 miles now lie, with the 28 border crossing points, to the border of the Irish Sea. In a debate on security in about 1991 in the other place, the noble Lord, Lord Maginnis of Drumglass, as he now is, who was not wholly uncritical of the Government’s security policies, attributed to the Anglo-Irish agreement the rise in terrorist activity immediately after the agreement had been brought in. He said that the agreement had wholly failed to fulfil the ambitions of the then Administration to improve security arrangements across the border. I told him gently in that debate that I thought that it was more likely that the increase in terrorist activity had resulted from the response of President Gaddafi in Libya to the fact that Mrs Thatcher’s Government had allowed British airfields to be used for the bombing of Libya. Mr Gaddafi responded with a series of arms shipments to the IRA at a time when previously it had been running extremely short of arms.
The other example is that Her Majesty’s Government are constantly saying to the people of Northern Ireland, “You have to have the corporation tax of the rest of the United Kingdom. You cannot have the corporation tax of the Republic”. Some of the implications of that have been alluded to. The issue of gasoline, to which my noble friend Lord Cope alluded, which is governed by the implications of the Kyoto principle for our Government and for the Irish Government, is just another such case. However, I recognise that the gasoline problem has become less acute.
As regards relations between the two sides of the Irish Sea, which have become extremely good, I cannot say strongly enough that it is critical that the people involved have the sense that what is being done is right and fair. I agree with the conclusion of the noble Lord, Lord Kilclooney, that other things could be done to improve the situation and reduce the threat, which would be preferable to what the Government are at the moment contemplating.
My Lords, I apologise for intervening on Report. I should like to make two points in support of the noble Lord, Lord Glentoran. I have three nephews and a niece, whom we moved out during the Troubles. They were moved to Wales to live in an area where they could perhaps live a half-decent life. They come home—I repeat, home—once a month to Northern Ireland. I fear this provision being in the Bill. No one in Northern Ireland objects to being asked for identification. Sometimes even when we book plane tickets we are asked to identify ourselves. But to have in the Bill a provision that a person may or may not have to identify himself when coming back into what he considers to be his homeland is hard to take. The noble Lord, Lord Glentoran, is right. If this is passed, the perception in Northern Ireland will be, “There you are, there’s another cutting off of us”.
A number of Peers today have spoken about our huge sporting interest. I have dozens of friends who travel regularly to Scotland for football or rugby matches, or over to England to watch Manchester United and so forth. It is wrong to suddenly say, “Right, if you live in Northern Ireland and you go across the water, when you come back you will have to identify yourself and go through passport control”. We have had years of identifying ourselves in Northern Ireland. That is not the problem. The problem is that in Northern Ireland the perception will be that this is another nail in the coffin of Northern Ireland being part of the United Kingdom. When I fill in a census form or travel to the United States, I put down that I am British and that the United Kingdom is my country. Please do not take that away from us.
My Lords, perhaps I may throw a small pebble into the pool, although I apologise for not being here for the entire debate. I am one of a category of three or four of your Lordships on these Benches, including my noble friends Lord Cope and Lord Brooke. I was in their situation for seven years, a good while before they came to your Lordships’ House. I used to travel, although not as they have done, to another part of the United Kingdom. Every time I flew, the terminals were very like those that we now find abroad. In Europe, there are two gates. One is the “Schengen”, which I believe is a town or city in Belgium. Under the Schengen agreement, those passport holders go through one gate, while those of us who hold other European passports, even though they are legitimate, go through another gate. Will the Minister see that this system does not arise at airports in the United Kingdom?
I recall that at Edinburgh and Glasgow airports every passenger, whether they were arriving or leaving, had to produce identification. For reasons that the Minister and my colleagues who have spoken will know perfectly well, we often did not need to produce identification; indeed, it might not have matched up with our various other travel documents, thus causing confusion. In any case, normally I was in the kindest and most benevolent form of custody to ensure that I arrived at my destination.
During my time in Northern Ireland, some officials in my department could recall the years of the Second World War. When they travelled across the Irish Sea in the areas described by my noble friends and the noble Lord, Lord Kilclooney, their books and work were searched. It was wartime and I am sure that there were good reasons for doing so, but I add this small pebble to the discussion to see whether the Minister could look at this issue.
I do not believe that the Minister’s department or the Government wish to create such enormous difficulties. If the Minister really imagines that it is only Rangers and Celtic fans going to and fro, I have to tell him that half the fans of Manchester United come from Ireland, as well as enormous numbers from Liverpool. The crowds are extremely large; indeed, he might care to look at the trouble that the football supporters legislation of the 1990s gave to the Government of the day. I ask him to join with other Members of the House, particularly noble Lords on these Benches and the noble Lord, Lord Kilclooney, and look at this issue.
My Lords, I am delighted to note that many noble Lords have intervened for the first time at this stage because the amendment allows me to explain, clearly I hope, why this clause on the reform of the common travel area is in the legislation. A number of noble Lords have been kind enough to refer to the discussions I have held, but perhaps I have created more heat than light, so I hope to make things a little clearer and clear up misconceptions.
It is important to explain why we are doing anything. No one wakes up in the morning and thinks, “Right, let’s give Lord West a hard time on the Floor of the House of Lords by putting this in place”; the provision has been made for a reason. In the final analysis, we know that serious organised criminals are exploiting the open border of the common travel area to assist their criminal activities. This includes the facilitation of illegal migration. Indeed, only two days ago the regional director of SOCA in Northern Ireland confirmed in a comprehensive media release what is going on in one area. We are aware that traffickers of all kinds are beginning to focus on the common travel area as a weakness in our system, and again this is something that SOCA is focusing on in particular because trafficking is a crime very high on its agenda. We know also that the common travel area is being exploited by illegal immigrants. Our evidence shows that around 8,000 immigration offenders travel unlawfully between the UK and the Republic of Ireland on the air and sea routes alone, but that figure represents probably just the tip of an ever-growing iceberg. We also have examples of people of international counterterrorism interest entering the United Kingdom having initially landed elsewhere in the common travel area. I believe that this is happening because we are tightening up our borders by a raft of means. Rather like water finding an opening in a ship when it is sinking, those who have been thwarted are pushing at every single door. I have no doubt whatsoever that something has got to be done to block this breach in our defences—not just for the United Kingdom, but for the benefit of the whole common travel area.
Having explained why something needs to be done, what are we proposing? I think that there is some confusion and wild speculation out there in the undergrowth. Let us start with the Crown dependencies. There will be no requirement for British citizens travelling to and from the Crown dependencies to the UK mainland to carry passports or ID cards. There will be no fixed immigration controls on these routes. The only change will be that legislation will be in place to allow focused, intelligence-led operations. At present—this is an important point—there is no unequivocal legislative cover for such operations, and we believe that that is required.
The Republic of Ireland introduced border controls in 1997 so that third country nationals travelling from within the common travel area to the Republic, by air or sea, must present a passport or ID card. Indeed, I was asked for a passport at a fixed control when I recently visited Dublin. The noble Lord, Lord Smith, referred to a passport-free area but I am afraid it is one no longer.
The noble Lord, Lord Kilclooney, and a number of other noble Lords, referred to flying into Northern Ireland and being asked for identity. I am still chasing up to find out who it was. I hope it was someone from an official agency, but I am not sure. If it was, it was an incredibly stupid thing to do and I am busy trying to track him down. He is covering his tracks well but I will get him, have no fear.
My Lords, as someone who has had a house in Ireland for 35 years, perhaps I may correct something the Minister said. I travel there about five times a year and you do not need a passport to get into Cork; you need only a means of identification. I take my passport because it is a good means, but you do not need to have one as such.
My Lords, does that not make my point that we need stricter controls at airports and seaports such as Cork similar to what we are now applying in Great Britain? If we had identical controls there would be no need for any checks within the common travel area.
My Lords, we are in constant dialogue with the Republic of Ireland authorities about checks and exactly what is required on entering that area. We are satisfied that they are trying their best to match those kinds of levels.
The changes to legislation that Clause 48 would bring about will mean that travellers by air and sea to the UK from the Republic of Ireland must carry a passport or national ID card, not least because of the need to capture and analyse passenger, service and crew data within our e-borders programme. These data are provided by the carriers. But there will be no fixed controls and, again, only intelligence-based operations around those data once we have them. As regards the land border, we do not intend to impose controls and there will be no requirement for a passport or identity card. There will be a growth in intelligence-based operations that will be clearly legitimised by the Bill.
I state categorically that the Bill will have no impact on journeys from Northern Ireland to the mainland, which are of course domestic journeys within the United Kingdom. The noble Lord, Lord Glentoran, referred to the fight against terrorism in Northern Ireland. I was involved in that and there is absolutely no doubt in my mind, or the Government’s mind, that it is a part of the United Kingdom, and I see it as such. That point was raised by my noble friend Lady Blood and the noble Lord, Lord Cope of Berkeley.
I have had quoted to me a number of comments from the meeting that took place last weekend. We have had nothing but supportive comments from the Republic of Ireland about what we are doing and we have been engaged with it very closely. I have in front of me a supportive quote from the Irish Minister of Justice about what we are doing. I am slightly confused sometimes by comments that come from other areas because, as I say, we have been working closely with the Republic of Ireland and it seems happy with what we do.
I hope I have managed to clarify the reason why we want to do something—that is, the threat—roughly what we are asking and what exactly we are saying will happen. I believe that explains why we need to change legislation.
As regards the concerns of the Crown dependencies, to which the noble Lord, Lord Goodlad, referred—I thank him for the meeting yesterday at which he drew my attention to a letter I had not seen; I am delighted to have now seen it—it might be helpful if I explain briefly our engagement with them during the CTA reform process. As the noble Lords, Lord Pannick and Lord Rowlands, said, it was perhaps not the best dialogue there could be. However, it is unfair to say that we have not had a constant dialogue. Officials from the Crown dependencies and the UK have been closely involved for some time on plans to reform the CTA. Senior officials from the United Kingdom and all of the Crown dependencies met in July 2007 to discuss this issue. Since then, officials have been working together regularly to develop proposals to reform the CTA, including at the Crown dependencies conference in Guernsey at the end of 2007 where these proposals were discussed at length. This was followed up by a UK/Republic of Ireland/Crown dependencies conference in Belfast in April 2008, and there were discussions through last summer.
Because of the complications in drafting the legislation and the difficulties in ensuring that we capture what we want to do and yet keep the common travel area in existence—I shall speak more about that later—we did not complete a draft until the beginning of December and I have written and apologised if that seems slightly short notice. But, because of that, I met recently in the House of Lords with senior representatives from all of the Crown dependencies. It was a very cordial and valuable meeting. I am glad to report that, despite a number of initial concerns, our close engagement with the Crown dependencies resulted in an agreement with both the Isle of Man—which has issued a press release today saying how much it supports the legislation, understands what is behind it and is happy with the MoU—and Guernsey to work towards a memorandum of understanding on the CTA reforms.
The MoUs will clearly set out the policy intentions of the UK in respect of these routes and will make clear that the status of Crown dependencies residents as British citizens will not be compromised; that no British citizen will be required to carry a passport or identity card on these routes; that we have no intention of introducing fixed controls on these routes; and that free movement for the vast majority of those who use these routes will not alter. For these reasons I am convinced that Clause 48 will not change the constitutional relationship between the Crown dependencies and the United Kingdom. That the Isle of Man and Guernsey have now both confirmed support for Clause 48 and for our proposals to work up these MoUs leads me to conclude that they share the same view. I am grateful to both the Isle of Man and Guernsey for their support.
I am disappointed that the bailiwick of Jersey has taken a different view from the United Kingdom, the Isle of Man and the bailiwick of Guernsey. In his letter to me of 27 March, to which the noble Lord, Lord Goodlad, referred, the Chief Minister is unable to support Clause 48 or the option of working towards an MoU because of the belief that British citizens of Jersey would be treated less favourably than British citizens who reside in the United Kingdom. My firm view, for the reasons I have explained, is that they will not be. I am, however, pleased that Jersey fully supports our policy intention in relation to CTA reform and the Chief Minister has stated in his letter to me that he agrees as a matter of principle with the need for increased supervision on these routes. I am confident that we can build on that agreement and work together to find a solution. I want to answer Jersey’s concerns while proceeding with this change to our legislation, which we believe is crucial for the reasons I have given, and we will continue to engage closely on this issue.
Why do I say that Clause 48 does not change the constitutional relationship? Prior to the Immigration Act 1971, a third-country national coming to the UK from another part of the CTA did not require leave to enter. However, it was possible to alter or abolish this right simply by making a statutory instrument subject to the negative resolution procedure. The 1971 Act provided that, in general, control was not exercisable over the movement within the common travel area, but that Act retained the power to contract or abolish the common travel area by subordinate legislation if that ever became necessary. Under Section 9(5) an island can be excluded from the common travel area if it appears necessary to do so by reason of any difference in the immigration laws of the island and the UK. Therefore, to suggest that the power in Clause 48 to control immigration between the UK and the islands is totally new and a change in the constitutional relationship is incorrect. I asked my officials to look at whether constitutional concerns were raised about Section 9(5) when it was debated. None was, when the question of whether to put it in place was debated under the last Conservative Government. They have not yet found any reference to any such concerns anywhere. We do not believe that the 1971 Act changed the constitutional relationship, and therefore nor does this amendment.
The cross-party Constitution Committee said that the clause had not been informed by any real appreciation of the constitutional status of the Crown dependencies or the right of free movement of the islanders. As an aside, I have great respect for that committee, and when I saw what it had said it worried me. I did a lot of digging around about it because the committee is made up of people who have great depth of knowledge about these issues. But both Guernsey and the Isle of Man have indicated that they support the clause; they clearly do not believe that it is incompatible with their constitutional status.
Jersey does not agree with them. In its letter it refers to the rights of nationals to travel freely within their own country and states that it does not accept that British citizens in one part of the United Kingdom should be treated as if they are foreign nationals. I can categorically say that nothing in Clause 48 allows UKBA to refuse entry to any British citizen, whether a Channel Islander or otherwise. It simply enables us to control non-British citizens. I am happy to discuss further the constitutional position of the islands and the need to ensure that we do not undermine that position. It is absolutely not the intention of the Government to do that and we do not do so with this clause. I am willing to look more closely at this issue. As I say, I have great respect for the Constitution Committee. On that basis, I should like to get my department, or the constitutional lawyers, to look at it in more detail than we have already, and if I am wrong in my assessment—I do not think I am—then clearly the clause will have to be reconsidered in the other place.
Despite what I think are the clear and compelling reasons that I have set out for the Government’s inclusion of the clause, I see from looking at your Lordships’ faces that many are unpersuaded. So, if we are thinking of having a vote, what would actually happen? I believe that there are three options open, and I invite noble Lords to think hard and be clear in their own minds which they are advocating.
First, we could abandon our programme to reform the common travel area, accepting not only that we should not increase levels of control activity, when intelligence suggests that that is necessary, but that we should back away from the checks we are already making as there is no proper cover. We are concerned about the latter point, which is why we need the legislation. As I have made clear, I believe that that would be dangerous and irresponsible, and it would make all of us in the common travel area less safe. Is that what critics of the clause would prefer?
Secondly, we could produce an alternative legal approach that differentiated between the legal position on routes from Ireland to the United Kingdom and those between the Crown dependencies and the United Kingdom under the respective control measures that could then be used, which has been the difficulty that our drafters have found. We would then, effectively, have dismantled the common travel area as a single entity. The noble Lord, Lord Smith of Clifton, said, “Haven’t we got rid of that anyway?”, but the answer is no. The common travel area is based on the principle that once a person has been granted leave to enter one part of it, they will not normally require leave to enter the United Kingdom while that leave is extant, provided that they do not leave the common travel area. That will remain the case even when Clause 48 is enacted.
I have already talked about the requirements from the Republic of Ireland about certain controls coming into Ireland. The Irish are clear that having to prove nationality does not abolish the common travel area. The implications if the common travel area went would be immense in terms of Schengen and the border between Northern Ireland and the Republic. We would have a two-tier system. I have rebutted criticisms that Clause 48 abolishes the CTA because I do not think it does. Would those who reject Clause 48 prefer an approach that explicitly did so?
So, effectively getting rid of the CTA is the second option. The third is to stick with the approach that Clause 48 currently takes, strengthening our security while preserving the common travel area. I fully accept that we can do more to explain our approach, to reassure our partners with Memorandums of Understanding of the sort that we have under discussion and to work through the constitutional questions that have been raised and to which I am confident there are satisfactory answers. For my part, I am not convinced that there will be any real alternative to reintroducing the current provisions in the other place, and I invite your Lordships to think carefully before seeking to remove what I think is a very necessary provision.
Consequently, while thanking all noble Lords for their interjections, I ask the noble Lord to withdraw the amendment.
My Lords, I thank the Minister for that careful and determined explanation of where we started from, where we are going to and where we are. I do not want—and, I hope, neither do other noble Lords—to pass the buck to the other place. It may end up that way, but that is not how we should be doing business.
I thank noble Lords from the Constitution Committee for their superbly argued case, which I found enlightening. If only I could be as eloquent as they are, it might help me and other noble Lords.
The Minister has not really answered any of our doubts. I understand his concerns about security. I do not accept the scale of the problem or that there is not a much more focused way of managing this. The Minister, as an ex-serviceman of some standing, knows all about focus on particular targets. As I said in my opening speech, I do not feel that the noble Lord and his officials have really focused on this target. I wish to take the view of the House.
Amendments 55 and 55A not moved.
55B: After Clause 48, insert the following new Clause—
“Entry otherwise than by sea or air: immigration control
In section 10 of the Immigration Act 1971 (c. 77) (entry otherwise than by sea or air), after subsection (1A), insert—
“(1AB) An Order in Council made under subsection (1) must not include provision relating to immigration control.””
Clause 52 : Transfer of immigration or nationality judicial review applications
55C: Clause 52, page 44, line 19, at end insert—
“(4) Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (c. 15) (right of appeal to court of appeal etc.) does not apply in relation to immigration and nationality appeals from the Upper Tribunal.”
My Lords, I move this amendment on the basis of the report from the Joint Committee on Human Rights, which is in the Printed Paper Office and gives useful background, most of which I am not going to weary the House with because everyone in the House can read at least as well as I can. The background begins on page 9 at paragraph 1.22, under the heading “Judicial review and access to court”. I recommend a reading of that background in order to understand the issue that this amendment and others in the group raise.
Having dealt with the background, I come to paragraph 1.28 of our report. The committee, which was unanimous, accepted that,
“there may be good reason why many immigration judicial reviews that are currently heard by the High Court, and which do not raise issues of any great difficulty or complexity, should be transferred to the Upper Tribunal. We remain concerned, however, that immigration and asylum cases which raise complex issues of fact and law, or in which human rights such as life, liberty or freedom from torture are at stake, should continue to be decided by judges of the standing of a High Court Judge. The Bill’s transfer of immigration and nationality cases to the Upper Tribunal does not guarantee this: a High Court judge may sit on the Upper Tribunal, but this is not guaranteed”.
I emphasise that we are dealing with those particularly important kinds of human rights cases. We recommend that,
“a means be devised for ensuring that judicial reviews which are of sufficient significance and complexity, including those in which important human rights are at stake, are heard by a High Court judge, by, for example, developing a sifting mechanism and ensuring that the more significant and complex cases either remain in the High Court or are heard by a High Court judge in the Upper Tribunal”.
Then we come to the passage that is really the basis for this amendment, which says:
“The Joint Council for the Welfare of Immigrants … has also drawn our attention to a further restriction on the right of access to court as a consequence of the Bill’s provisions transferring judicial reviews relating to immigration or nationality from the High Court to the Upper Tribunal. Sir Richard Buxton, until recently a Lord Justice of Appeal in the Court of Appeal, has provided JCWI with a legal opinion in which he points out that if immigration and nationality judicial reviews are transferred to the Upper Tribunal, the Lord Chancellor will have the power, under a provision in the Tribunals, Courts and Enforcement Act 2007, to limit appeals from the Upper Tribunal to the Court of Appeal to cases where the Court of Appeal considers (a) that the proposed appeal would raise some important point of principle or practice, or (b) that there is some other compelling reason for the relevant appellate court to hear the appeal. This is a very restrictive test for leave to appeal, originally designed to limit ‘second appeals’, that is, appeals against decisions which are themselves made on appeal from the original decision”.
“As Sir Richard Buxton points out, immigration cases in the domestic courts almost always engage the UK’s obligations under international conventions, including the Refugee Convention and the ECHR. If the ‘second appeal’ restriction is imposed on appeals from the Upper Tribunal to the Court of Appeal that the Upper Tribunal has misinterpreted or misapplied the UK’s human rights obligations”.
We say this:
“We agree with the opinion of Sir Richard Buxton that in a case where there is a real prospect that the decision of the Upper Tribunal is in breach of the UK’s international human rights obligations, that issue demands the attention of a court of the stature of the Court of Appeal. We recommend a simple amendment to the Bill to ensure that the Lord Chancellor’s power to impose the restrictive ‘second appeal’ test on appeals to the Court of Appeal is not available in immigration and nationality cases”.
That is what this amendment is designed to achieve. I bet there are not more than four Members of this House who understand what I have just said, but I hope that at least the Minister and those who have the good or bad fortune to be lawyers or former lawyers will understand why this is a very important issue. I beg to move.
My Lords, I have put my name to this amendment, which I strongly support. The noble Lord, Lord Lester, has made a strong case, by reference among other things to the report of his committee, for saying that the power under Section 13(6) of the Tribunals, Courts and Enforcement Act for the Lord Chancellor to restrict the grounds on which the Court of Appeal may grant leave to appeal should not apply to asylum and immigration appeals. The Court of Appeal should continue to be able to grant leave to appeal in these very sensitive and difficult cases on the traditional grounds that there is a real prospect of the appeal succeeding. I support the amendment and, if the noble Lord were to divide the House on it, I should certainly support it.
My amendment falls in the same group. It is perhaps better that I should deal with it now. I apologise for not moving the amendment in Committee. That was not because Clause 52 has not been controversial from the start—because it has been. The reason I did not move an amendment in Committee was quite simply that discussions were still going on, including discussions with very senior members of the judiciary, to find the best way ahead. As a result of those discussions, the noble Lord, Lord West, has tabled Amendment 62A, which we will come to, which provides that Clause 52—the controversial clause—will not come into operation until a further order on an affirmative basis in both Houses.
I shall support the noble Lord's amendment when the time comes, but I will explain very briefly now why I support it, because it is relevant to my amendment. The Asylum and Immigration Tribunal has not yet been transferred to the new tribunal system. There may be changes, when it is transferred, to the way that such appeals are dealt with. It simply does not make sense to transfer judicial review of asylum and immigration cases to the new Upper Tribunal before the AIT itself has been transferred. That does not make sense. Moreover, the upper tier has been in operation for only six months or less. It needs to gain experience, especially once the AIT has been transferred into the new system. So I shall, as I say, support the noble Lord’s amendment, which resolves at least one of the major concerns that some of us have had.
I now come to my other cause for concern. The background is this. The High Court judges who deal with judicial review in immigration cases in the administrative court are under huge pressure. There are currently 3,000 applications for judicial review annually in such cases alone. Some of these cases are complex and sensitive, as I am sure we all know. Everyone agrees that those cases should continue to be dealt with by High Court judges, as they are now. However, many of those 3,000 cases are comparatively straightforward. They do not raise any real points of difficulty and are not unusually sensitive. Of course they need to be dealt with judicially—there is no question about that—but they need not take up the time of the limited number of High Court judges available to deal with these cases.
What was needed from the start, from the moment that Clause 52 appeared, was a filter—a means of distinguishing those cases that should be retained in the administrative court from those that could be transferred. That was one of the main recommendations in paragraph 1.29 of the report of the Joint Committee on Human Rights, which the noble Lord, Lord Lester, has already read.
The purpose of my amendment is to provide just such a filter in the most convenient way. Of the 3,000 applications for judicial review, about 1,000 are so-called fresh claim applications—that is to say, cases where the appellant seeks to challenge a decision of the Secretary of State on the basis of further grounds put forward by him. The question then arises of whether those fresh grounds constitute a fresh claim or not. Those applications amount to some 1,000 applications a year. Of those 1,000 cases in 2008, only 12—a tiny proportion—were found to merit a substantive hearing. It is the view of the senior judiciary that those applications should be transferred as a class to the Upper Tribunal and could be done without injustice. I suggest that we would all accept their view on that.
If so, the effect of my amendment, coupled with the amendment to be moved by the noble Lord, Lord West, would be as follows. Once the AIT has been transferred and the system is working smoothly, the Secretary of State would then lay an order bringing Clause 52 into operation. At the same time, he would lay another order transferring the class of fresh claims to the upper tier of the tribunal. In that way, we would relieve the administrative court of a main part of its burden in the shortest possible time. There is no way that we could do it more quickly than that. The starting point will be the transfer of the AIT to the new system, which I strongly support. I hope that the noble Lord, Lord West, will confirm that it is the Government's intention to transfer the AIT to the new system sooner rather than later, and everything thereafter will follow.
I now deal with the amendment of the noble Lord, Lord Kingsland. The noble Lord and I have almost always, as I am sure he will confirm, seen eye to eye on questions of law and legal procedure. But for once, and with the utmost respect, as lawyers say, I beg to differ. I hope that he will understand. The noble Lord’s amendment does indeed transfer fresh claim applications, as will mine, but no sooner than mine. So far, his amendment is good. The trouble with his amendment is that, unlike mine, he proposes to remove Clause 52 from the Bill altogether. That will have serious consequences in relation to the 2,000 applications remaining after the 1,000 applications have been removed, which will remain thereafter, but which will have to be dealt with by High Court judges themselves and cannot be transferred as a result of an exercise of the individual judge’s discretion. The remaining 2,000 applications under my amendment could be transferred at the discretion of the judges on a case-by-case basis, but under the noble Lord’s amendment they would not be. They would all have to be dealt with by High Court judges, and that cannot be a proper use of High Court judges’ time.
To remove Clause 52 from the Bill altogether cannot be the right way ahead and is not supported by the judiciary. It must make sense to leave the judges with that limited discretion to transfer individual cases to the tribunal. However, there is a second reason why I have difficulty. Let us suppose that fresh claims have been transferred as a class and the system is working well, as I hope and believe it will. If it then emerges that a further class of claims could be transferred with advantage, under my amendment that could happen with the Lord Chief Justice’s consent. There would be a fresh class transferred which would come before this House on an affirmative order. On the noble Lord’s amendment, a fresh class transfer would require primary legislation. Once again, I suggest that it would not be right to tie down the judiciary in that way. For those reasons, I shall move my amendment when the time comes.
My Lords, I shall be moving not Amendments 56 and 56A but rather Amendment 56B in my name and that of the noble Lord, Lord Thomas of Gresford. The noble Lord, Lord Thomas, is unable to be with your Lordships today, for compelling reasons, and has asked me to try to represent his views as faithfully as I can.
The amendment tabled by the noble Lord, Lord Lester, in itself, for all the reasons that he has given, is wholly admirable and, if we ignore the text to which it is added, totally acceptable. Indeed, it is identical to proposed new subsection (4) in our own Amendment 56B. However, for reasons that will become plain if one glances at proposed new subsections (1) and (2) of our amendment, the text of Clause 52 to which the amendment tabled by the noble Lord, Lord Lester, relates is quite unacceptable to us. For these reasons, we cannot support the amendment.
The Tribunals, Courts and Enforcement Act 2007 permits the transfer, as I trust your Lordships are now aware, of certain judicial review applications from the High Court to the Upper Tribunal. During the passage of the legislation through your Lordships’ House, the Government accepted that further primary legislation was necessary before immigration and asylum matters could be so transferred. As I indicated in Committee, they made clear their reason for taking this course, which was that proceedings in these cases, unlike in other tribunal cases, often give rise to disputes over internationally binding principles concerning the right to liberty, the right not to be put at risk of torture and the right not to be placed in danger of undergoing cruel and unusual punishment or capital punishment.
The noble Baroness, Lady Ashton, stated, during the passage of the 2007 Act, that, before introducing further primary legislation to allow transfer of judicial review applications in respect of asylum and immigration cases, the Government wanted to see how the new regime would work. The Government are in plain breach of that undertaking. This Bill was introduced, containing Clause 52, almost simultaneously with the opening of the Upper Tribunal for business. The Government have had no time at all to consider the appropriateness of allowing the transfer of judicial review cases from the administrative court to the Upper Tribunal. As I said in Committee, I regard what is now Clause 52 as a straightforward breach of faith with your Lordships’ House.
In Committee, I also allowed myself to speculate as to why the breach of faith had occurred. There seems little doubt that pressure from the High Court judges in the administrative court has played an important part. Such statistics as are available suggest that as much as 70 per cent of the court’s resources are dedicated to asylum and immigration matters. However, unless there is a fundamental reform in how the existing Asylum and Immigration Tribunal operates, the only consequences of passing these matters to the Upper Tribunal will be to create a similar problem there. The pressures of which the administrative court is making us aware are—again, as I ventured to suggest in Committee—the symptom of a deeper malaise: the failure of the AIT to make fair and timely decisions.
The main, although not the only, reason for this was the decision of the right honourable gentleman, Mr David Blunkett, the then Home Secretary, to change from a two-tier AIT to a single-tier system in 2004. Of course, the judiciary’s concerns, which have been well explained by the noble and learned Lord, Lord Lloyd, have to be taken seriously, especially when they are endorsed by the Lord Chief Justice. However, we sit here not as judges but as Members of Parliament. Pressure of work on the High Court Bench is indeed a relevant consideration and should be granted considerable weight, but other considerations have to be weighed in the balance, too.
In particular, first, the Government have broken their promise to your Lordships’ House not to introduce primary legislation permitting the transfer of judicial review matters in asylum and immigration cases until we have sufficient evidence that the system for judicial transfers in other classes of case are working well. Secondly, the Opposition and the noble Lord, Lord Thomas of Gresford, would be extremely unhappy to permit such transfers unless we were satisfied that the transferred AIT single-tier regime to the Upper and Lower Tribunals did indeed have the effect of leading to much fairer and more timely decisions, thus reducing substantially the overall number of judicial review cases. This raises myriad issues, such as the rules of procedure of the new regime, the prompt respect of those rules by the Home Office, the quality of judges in the Lower Tribunal and the role of lay members. Thirdly, as I have indicated, judicial review is a crucial component in the struggle to protect the individual. Many of these cases raise issues, at best, of the freedom of the individual and, at worst, of torture and death. It is vital that it remains open to someone in such cases to have the application heard by a High Court judge.
The Minister kindly wrote to me on 27 March, seeking, quite properly, to allay my fears. In essence, he says that government Amendment 62A requires,
“the provision on the mandatory transfer of classes of cases of judicial review to be commenced by affirmative resolution order”.
The decision to specify a particular class is delegated to the judiciary, with the approval of the Lord Chancellor. The noble Lord encapsulates what he has done in another paragraph. He adds that he did,
“not believe that we should restrict the classes of case that may be suitable for mandatory transfer on the face of the Bill as this would require primary legislation before any additional classes of case could be added beyond those that could be identified now”.
In another paragraph, the Minister states:
“Our amendment would require Parliament to have the opportunity to consider whether the time is right for the mandatory transfer of classes of case before the power is commenced”.
I hope that the Minister will not mind my observing that the letter is as significant for what it omits as for what it contains. There is no reference to the undertaking given by the Government in 2007 not to introduce primary legislation on this matter at all until sufficient time had elapsed for us to consider the success or otherwise of the transfer of other classes of judicial review to the Upper Tribunal. There is no apparent understanding of the likely consequences of what will, one hopes, be a vastly improved AIT regime, following its transfer to the tribunal system, on the reduced need to transfer judicial review cases, which prima facie ought to remain in the High Court. Again, there is to be blanket approval by order for all classes of case regarded by the judges as suitable for mandatory transfer.
Finally, there is the assertion that Parliament is protected because none of this can happen without its approval through the mechanism of an affirmative order. It is this last consideration that leads me to the amendment tabled by the noble and learned Lord, Lord Lloyd. That amendment goes further than that of the noble Lord, Lord West. In particular, the noble and learned Lord, Lord Lloyd, requires that each class of case proposed to be transferred should have a separate, positive approval by both Houses of Parliament. In itself, that is a welcome advance. However, in common with the proposal of the noble Lord, Lord West, the involvement of Parliament is by delegated, not primary, legislation.
The amendment tabled by the noble and learned Lord, Lord Lloyd, is a characteristically thoughtful and elegant attempt to solve the problem. We would support it were it not for one matter: it allows the transfer of asylum and immigration judicial reviews to the Upper Tribunal by affirmative order. The noble and learned Lord, Lord Lloyd of Berwick, and perhaps many of his Cross-Bench companions, enviably, as far as I am concerned, feel free to vote against unamendable delegated legislation. The Opposition do not; we regard ourselves as bound by constitutional convention to vote against affirmative orders only in the most rare and exceptional circumstances. I am not at all confident that, when the affirmative orders of the noble and learned Lord, Lord Lloyd, come to be voted on, they would be classified by the Leader of the Opposition as falling into that category. In short, the noble and learned Lord’s amendment provides us with no protection against inappropriate transfers. Therefore, we cannot, I fear, support it. I express the same sympathy as the noble and learned Lord kindly did to me about the consequences of that conclusion.
I referred earlier to the weight that Parliament should give in all the circumstances to the plight of the administrative court judges. In his letter to the noble and learned Lord, Lord Lloyd of Berwick, of 12 March, the Lord Chief Justice made a special plea to Parliament to allow the speedy transfer of a class of judicial review applications described as “fresh claims applications” made under Rule 353 the of Immigration Rules. He pointed out, as did the noble and learned Lord, Lord Lloyd, that in 2008, 76 per cent of these applications were refused on paper. A small number then proceeded to an oral hearing. Most of these were refused permission to apply for judicial review. In the end, only 12 substantive judicial review cases were held. Out of the approximately 3,000 asylum and immigration judicial review cases lodged in the administrative court annually, fresh claims applications under Rule 353 comprised no fewer than 1,000. We found the case made out by the Lord Chief Justice for a transfer of this class of case compelling, and subsections (1) and (2) of our Amendment 56B reflect that conclusion.
I have already explained why we cannot support the amendment tabled by the noble Lord, Lord Lester, in the particular context in which it is introduced. However, subsection (4) of our amendment, in identical terms to the text proposed by the noble Lord, Lord Lester, demonstrates that we wholly support its substance.
As the noble Lord has explained, there are powerful reasons why the existing test for appeals from the AIT to the Court of Appeal should remain. First, there will be applicants who face the prospect, if deported, of returning home to torture and perhaps even death. Moreover, the Upper Tribunal, in reaching its decision, will frequently have to grapple with submissions concerning often complex points of international law under the European Convention on Human Rights or the refugee convention. Therefore, it would, in my submission, be wrong for an appellant from the Upper Tribunal to be denied the opportunity of going to the Court of Appeal in circumstances where that court adjudges an appeal to have a real prospect of success.
My Lords, I support the amendments in the names of the noble Lord, Lord Lester, and the noble and learned Lord, Lord Lloyd. I support with less enthusiasm the amendment in the name of the noble Lord, Lord Kingsland. As I understand it, Clause 52 confers power on the Lord Chief Justice to transfer immigration and nationality judicial reviews, like other categories of judicial review, to the Upper Tribunal. I accept that it is undoubtedly appropriate to transfer many of those cases to the Upper Tribunal rather than to have them heard in the administrative court—that is, in the High Court—because a large proportion of these cases simply concern specific facts and raise no issue of general principle or importance. That is recognised by the fact that a large proportion of them are currently heard in the High Court not by High Court judges but by deputy High Court judges. These cases take up a substantial proportion of the time of the administrative court, but it would not be appropriate to transfer to the Upper Tribunal all categories of immigration cases. For example, those cases that raise issues concerning whether removal of a person from this country would be a breach of his or her fundamental rights or of the United Kingdom’s international obligations should be heard in the High Court by a High Court judge.
The defect of Clause 52 is the breadth of the power that it confers. It fails to identify any criterion whatever for distinguishing those cases that should remain in the High Court and those cases in respect of which there should be a power to transfer them to the Upper Tribunal. The virtue of Amendment 55D, in the name of the noble and learned Lord, Lord Lloyd of Berwick, is that it would preserve parliamentary control. Amendment 56B, in the names of the noble Lords, Lord Kingsland and Lord Thomas, is not ideal. Subsection (1) of the amendment tabled by the noble Lord, Lord Kingsland, would allow the transfer only of fresh claims cases. Many other immigration cases ought to be subject to transfer powers. Subsection (2) is unnecessary. If provision is made under subsection (1), cases would be transferred and no exercise of discretion would be necessary or appropriate. However, I support the noble Lord’s amendment, far from ideal though it is, because, if approved, it would have the virtue of making the Government think again on this important issue.
As regards Amendment 55C in the name of the noble Lord, Lord Lester, a consequence of the enactment of Clause 52 is that the Lord Chancellor would then have power, under Section 13(6) of the Tribunals, Courts and Enforcement Act 2007, to limit appeals from the Upper Tribunal to the Court of Appeal. By reason of Section 13(6), it would not be enough for a litigant to show that he or she had a properly arguable point of law. In order to obtain leave to appeal to the Court of Appeal from the Upper Tribunal, the litigant would also need to show that the proposed appeal would,
“raise some important point of principle or practice, or … that there is some other compelling reason for the relevant appellate court to hear the appeal”.
The Joint Council for the Welfare of Immigrants has understandably expressed concern that the result of this may be that litigants are prevented from appealing to the Court of Appeal against decisions of the Upper Tribunal when they have arguable points of law, even when the point of law is that the immigration decision involves a breach of the international obligations of the United Kingdom. As the noble Lord, Lord Lester, has mentioned, the JCWI relies on an opinion to that effect from Sir Richard Buxton, a recently retired Court of Appeal judge.
I doubt that it is the intention of the Minister that the Upper Tribunal and the Court of Appeal should be prohibited from granting leave to appeal in a case where there is an arguable error of law that, if not remedied, would put this country in breach of its international obligations, but this matter needs to be clarified by an appropriate amendment. I therefore hope that the House will support the amendments, so that the Government can think again.
My Lords, I am standing in for my noble friend Lord Thomas of Gresford in his unavoidable absence from this debate this evening. I wish to say just a very few words because of the great shortage of time. My noble friend and the noble Lord, Lord Kingsland, have been working very closely together on this matter throughout the passage of the Bill. I believe that in Amendment 56B they have produced a good amendment, and we on these Benches will support it enthusiastically.
My Lords, I wish to raise a point which I think is important to bear in mind. First, I support the Minister’s Amendment 62A, which encompasses matters that would involve the Court of Session in Scotland. I observe that Amendment 55C, which relates to Section 13(6) of the Tribunals, Courts and Enforcement Act 2007, does not engage the Court of Session and therefore is irrelevant so far as that court is concerned. The same point can be made with regard to the amendment tabled by the noble Lord, Lord Kingsland.
The amendments that satisfy the matters concerning the Court of Session in Scotland are those which are raised by the amendment proposed by the noble and learned Lord, Lord Lloyd of Berwick, which is quite general and therefore is equally applicable to the Court of Session as it is to the Courts of Appeal in England and in Northern Ireland; likewise, Amendment 62A, proposed by the Minister. To that extent, I support the amendments.
My Lords, there is another Scottish point that ought to be drawn to your Lordships’ attention. On 19 March, the Scottish Parliament debated these matters. Mr Kenny MacAskill, the Justice Minister, said at col. 16074 of its Official Report:
“The Government believes that the UK Government has acted inappropriately in ignoring our and the judiciary’s request to delay the process because we have an on-going review of the structure of civil courts and law in Scotland … I am happy to go back to the UK Government to make it clear that many members in the Parliament have expressed the view that the UK Government’s attitude is not as we would wish. We cannot do anything about that”.
Since then, I understand that there has been correspondence between Mr MacAskill and the Minister in another place, Mr Phil Woolas, and that it has been agreed that Clause 52 shall not be brought into effect until the completion of the inquiry by the Scottish Parliament into the manner in which the powers will be exercised in Scotland. Will the Minister confirm that this undertaking has been given to the Scottish Parliament, so that we have it on the record?
My Lords, I shall speak to Amendments 55C, 55D, 56B and 62A.
As noted by the noble Lord, Lord Lester, Amendment 55C reflects comments made by the Joint Committee on Human Rights in its report on the Bill. The committee recommended that the Bill be amended to remove the Lord Chancellor’s power to restrict the test for onward appeals to the Court of Appeal.
This is not necessary in relation to judicial review applications, as the test in Section 13(6) of the Tribunals, Courts and Enforcement Act 2007, to which this amendment refers, applies only where the application is for permission or leave to appeal from any decision of the Upper Tribunal on an appeal under Section 11 of the Act. Section 11 relates to appeals from decisions made by the First-tier Tribunal. Therefore, Section 13(6) does not apply to appeals to the Court of Appeal on judicial reviews.
In relation to appeals that Section 13(6) will apply to, it is the case that the number of immigration cases on which there is an application for permission to appeal to the Court of Appeal is significant and has risen considerably in recent years, as mentioned by the noble and learned Lord, Lord Lloyd.
The Master of the Rolls, in his response to our consultation on immigration appeals, has said that this is putting significant pressure on the resources of the Court of Appeal, both in terms of administration and judicial time. I am concerned that, while addressing the burden on the High Court, we also need to address the burden on the Court of Appeal. I therefore believe that we should retain the Lord Chancellor’s power to restrict the test for appealing to the Court of Appeal in immigration cases. I accept that there may be some cases which raise the real prospect that the decision of the Upper Tribunal is in breach of the UK’s human rights obligations, but these are precisely the sort of cases that would meet the test set out in Section 13(6).
I also stress that, where the Upper Tribunal considers that an onward appeal application does not meet the test, the Act provides for permission or leave to be sought from the relevant appellate court. However, the Master of the Rolls has also pointed out that the majority of these appeals raise no point of general importance, and it is therefore wholly disproportionate for there to be an automatic right for them to be substantively considered by the most senior judges who sit in the Court of Appeal.
Amendment 55D would require that Parliament approves every class of judicial review in Clause 52 which the Lord Chief Justice of England and Wales, the Lord President in Scotland and the Lord Chief Justice of Northern Ireland wanted to direct for mandatory transfer into the Upper Tribunal. I do not believe that this should be necessary, once Parliament has agreed that the power should be used in principle. The classes of case designated for mandatory transfer should be at the discretion of the senior judiciary, as set out in the Tribunals, Courts and Enforcement Act.
While I accept that there is a role for Parliament in deciding when the time is right for the Upper Tribunal to deal with the mandatory referral of classes of immigration and nationality judicial review cases, I do not believe that we should constrain the ability of the most senior judges to exercise their constitutional responsibility for the allocation of work within the courts.
The amendment would place an unnecessary burden on Parliament and, while I understand the reasons that the noble Lord has tabled it, I believe that the clause as drafted, with the government amendment, strikes the right balance between parliamentary oversight and discretion for the most senior judges.
The purpose behind Amendment 56B seems to be that only those judicial review cases which relate to Section 353 of the Immigration Rules can be transferred to the Upper Tribunal. These cases could be transferred only after the Asylum and Immigration Tribunal has been transferred into the unified tribunal system and only after an order subject to the affirmative resolution procedure. I confirm that there is no intention to transfer judicial reviews to the Upper Tribunal unless and until the AIT is transferred.
Amendment 56B duplicates the effect of Amendment 55C, so I will not duplicate my arguments. Amendment 56B does not achieve its first aim, as it refers to applications made under Rule 353 of the Immigration Rules. In reality, applications are refused under Rule 353, rather than made. More importantly, this amendment removes all flexibility for the Lord Chief Justice and his equivalents in Scotland and Northern Ireland to manage cases as they see fit. As a consequence of this amendment, the Lord Chief Justice of England and Wales, the Lord President of Scotland and Lord Chief Justice of Northern Ireland would have no power to direct the mandatory transfer of any additional classes of case. The clause would remove all flexibility and discretion and would therefore make it harder for the most senior judges to ensure that cases are managed in the best interests of justice.
In addition, High Court judges and judges of the Court of Session would not have the power to transfer cases on a case-by-case basis, other than in relation to fresh claims. The House has not previously expressed concern over this aspect of Clause 52, and I am surprised that this amendment now seeks to limit the power to enable transfer of this single class of case only, rather than also to allow judges to exercise their discretion in individual cases. While I understand and accept the intention that class transfer of cases should not begin until Parliament has had a further chance to debate whether the Upper Tribunal is ready to hear them, it is not in the best interests of justice to limit the classes of case that may be transferred.
Fundamentally, I believe that it is in the best interests of justice to allow the senior judiciary, with the agreement of the Lord Chancellor, to decide which classes of judicial review cases are suitable to be heard in the Upper Tribunal, once we reach that stage. This procedure already operates in non-immigration jurisdictions. The Lord Chief Justice, the Lord President and the Lord Chief Justice of Northern Ireland are responsible for the allocation of work between courts, and this responsibility should be reflected in Clause 52. This amendment does not achieve that, so I urge the House not to support it.
The noble Lord, Lord Kingsland, talked about the Government breaking their promise not to bring forward legislation until the Upper Tribunal was established. The commitment given by the Government during the passage of the Tribunals, Courts and Enforcement Bill was not to transfer immigration judicial reviews until the Upper Tribunal was firmly established and not to do so without further primary legislation. This Bill is that further primary legislation, and the government amendment goes further by giving Parliament a further opportunity to debate the matter before the commencement of the clause.
I have tabled Amendment 62A because there are two separate concerns in relation to Clause 52. The first relates to timing and why this clause is in this Bill. The Upper Tribunal has not been in existence long, as the noble Lord, Lord Kingsland, mentioned, and the Asylum and Immigration Tribunal has not yet been transferred into the unified system. The transfer of the AIT was referred to by the noble and learned Lord, Lord Lloyd; we would hope to make any transfer as swiftly as possible, but given that a number of orders need to be made, it is unlikely to happen until early 2010. While I hope that we will be able to make an announcement on this soon, I accept that it is difficult at this time for Parliament to be satisfied that it will be appropriate to allow the mandatory transfer of a class of immigration judicial review cases at an as yet unknown date. My amendment would require Parliament to have the opportunity to consider whether the time is right for the mandatory transfer of classes of case before the power is commenced. I have already given an assurance that we will not commence Clause 52 until the AIT has been transferred.
As a result of Amendment 62A, powers to provide for case-by-case transfers of judicial reviews under Clause 52 can be commenced by order in the normal way. In all these cases, the decision to transfer the case to the Upper Tribunal will be made by a High Court judge, or a Court of Session judge in Scotland, only where he or she thinks it just and convenient to do so. I do not believe there is the same concern about case-by-case transfer of judicial reviews as there is about class transfer, but I reiterate the assurance I have given that we will not commence this provision until the AIT has been transferred.
The second concern relates to the classes of case which may be transferred. As I have said, we should allow the most senior judges to manage the allocation of work between courts, in line with their constitutional responsibilities. This amendment would give Parliament a further chance to decide that the Upper Tribunal is sufficiently well established for the power for mandatory transfer of classes of judicial review to begin, while ensuring that there is sufficient flexibility and discretion available to respond to future challenges.
In answer to the query about whether Clause 13(6) applies to Scotland, it does not apply in relation to appeals to the Court of Session. The noble Lord, Lord Avebury, also asked about Scotland; I am not aware of any correspondence and I shall have to check on what commitments have been given and come back to him.
I urge the House to support Amendment 62A and to resist Amendments 55C, 55D and 56B.
My Lords, does the noble Lord intend the Government to vote against the amendment of the noble and learned Lord, Lord Berwick?
My Lords, I am very grateful to everyone who has taken part in this extended debate, which has ranged well beyond my amendment. I am particularly grateful to the Minister for making an important statement of position, which I am sure that people concerned with this subject will wish to consider very carefully. We are at Report stage, which makes it very hard to do that further in this House. I should declare an interest as a member of the Joint Committee on Human Rights and because I am married to an immigration judge and therefore know a great deal about some of the burdens imposed. If I am allowed to be slightly political, in my view those burdens are the inheritance from previous bad decisions by the Home Office in previous legislation, which made the Administrative Court, as it should never have been, the primary court dealing with cases that should have been dealt with by the specialist Immigration Appeal Tribunal. That is, like past breaches of promises, history.
I am more a practical solver of problems than I am a politician, and I share the concern expressed by the judiciary and by the noble and learned Lord, Lord Lloyd, in particular, about the very heavy burdens clogging up the Administrative Court system. I fully understand all the reasons why it is desirable to transfer those cases which should be transferred so that the Administrative Court can deal with important judicial reviews.
I do not have the wisdom of Solomon and, looking at these amendments, find it very difficult to give a prize based on whichever might be the best of the three. The amendment in my name has been taken over by legal eagles who have turned themselves into magpies, because they have popped my amendment into the amendment from the two opposition Front Benches and, to that extent, have made it unnecessary.
I agree with the noble Lord, Lord Pannick: left to myself, I would regard the amendment of the noble and learned Lord, Lord Lloyd, as the one that comes closest to fixing the problem. I am not satisfied with the Minister’s reply that the problem has now been fixed; nor am I convinced by the argument that my amendment is not necessary. The Court of Appeal would have to consider whether permission to appeal should be granted, whatever the test. I do not think that the Court of Appeal has its burden relieved by raising the test for granting permission to appeal through the application of Section 13(6). Therefore, I regard my amendment as still desirable and perhaps necessary to achieve the object that I mentioned. However, that is now in the amendment of the noble Lord, Lord Kingsland.
My position is simply that I shall go for the highest common factor of political agreement across this House which will induce the Home Office to think again and enable the matter to come back to us when we all have time to consider the grave and weighty matters that have been debated. For that reason, I support the amendment of the noble and learned Lord, Lord Lloyd, if moved, and I strongly support the amendment in the names of the noble Lord, Lord Kingsland, and my noble friend Lord Thomas of Gresford. I say nothing about Scotland but I hope that nothing that I have said causes offence north of the border. I beg leave to withdraw my amendment.
Amendment 55C withdrawn.
55D: Clause 52, page 44, line 19, at end insert—
“(4) Notwithstanding subsections (1) to (3), no transfer of a class of applications falling within subsection (5) may be made unless a draft of a statutory instrument specifying the class of applications to be transferred has been laid before and approved by resolution of each House of Parliament.
(5) The applications are those which call into question any decision made under—
(a) the Immigration Acts,(b) the British Nationality Act 1981 (c. 61),(c) any instrument having effect under an enactment within paragraph (a) or (b), or(d) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of British National (Overseas) or British Overseas citizenship.”
My Lords, I pass on from that to my amendment. I am afraid that I have not been persuaded by the noble Lord, Lord Kingsland, that his amendment is the way ahead. In my view, it is not, and I agree wholeheartedly with the cogent criticisms of it which the noble Lord, Lord West, advanced in his reply. Where I tend to disagree with the noble Lord, Lord West, is when he says that there is no need for further parliamentary control. In my view, there is, and my amendment provides just the degree of parliamentary control that I regard as appropriate. Therefore, my amendment steers a sort of mid-way course, if I may so put it, between the position of the noble Lord, Lord West, and that of the noble Lord, Lord Kingsland. For that reason, I wish to test the opinion of the House on my amendment.
My Lords, I have to inform the House that Amendments 56 and 56A have been substituted by manuscript Amendment 56B. In view of the length of the manuscript amendment, I will not call it out when I put the Question but copies of the amendment are available.
56B Leave out Clause 52 and insert the following Clause—
“Fresh claim applications
The Secretary of State must by affirmative order make provision for the transfer of fresh claim applications made under rule 353 of the Immigration Rules to the Upper Tribunal.
The Administrative Court has the discretion to determine whether an application to it falls exclusively within the category of a fresh claim application.
An order made under subsection (1) may not be made until the Asylum and Immigration jurisdiction has been transferred to the First Tier Tribunal and Upper Tribunal.
Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (c. 15) (right to appeal to Court of Appeal etc.) shall not apply to asylum and immigration appeals from the Upper Tribunal.”
My Lords, with respect to manuscript Amendment 56B, I wish to test the opinion of your Lordships’ House.
57: After Clause 52, insert the following new Clause—
“Trafficking people for exploitation
In section 4(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (trafficking people for exploitation: meaning of exploitation), for paragraph (d) substitute—
“(d) a person uses or attempts to use him for any purpose within sub-paragraph (i), (ii) or (iii) of paragraph (c), having chosen him for that purpose on the grounds that—(i) he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and(ii) a person without the illness, disability, youth or family relationship would be likely to refuse to be used for that purpose.””
My Lords, human trafficking is an appalling crime and the Government are committed to tackling it and protecting its victims. The amendment will help in our ongoing battle against trafficking. It widens the definition of the offence of human trafficking to capture the mischief usually referred to as “trafficking of children for benefit fraud”. I am grateful to the noble Baroness, Lady Hanham, and other noble Lords for bringing this matter to our attention.
For an act to be regarded as trafficking for non-sexual exploitation, our current legislation requires, among other things, for the trafficker or someone else he knows about, to intend to exploit a person. One definition of exploitation in the current offence requires a person to be “requested or induced’” to undertake any activity.
As noble Lords have argued, very young children, including babies, cannot be requested or induced to do anything; nor would they be carrying out any activity themselves. Their passivity therefore means that they may not be regarded as having been exploited as currently defined in the context of trafficking, and therefore another person may not be liable for an offence of trafficking.
That issue was highlighted in the case of Mrs Peace Sandberg, who purchased a baby from Nigeria to seek priority housing in the UK. In this case, the baby’s role was passive. Mrs Sandberg was convicted of facilitation, not trafficking, and jailed for 26 months in 2008.
We believe that such conduct should rightly fall under the remit of trafficking. Our proposals will amend the definition of exploitation to enable that by removing the requirement for the child to be requested or induced to undertake any activity. Accordingly, if someone uses or attempts to use another person, including a small child, to obtain a benefit or gain of any kind, he or she would be capable of committing the offence.
The related amendments are designed to allow for the new offence to apply to England, Wales and Northern Ireland but not to Scotland. Human trafficking is a devolved matter in Scotland and it is normal procedure that the Scottish Parliament legislates for Scotland where there is a suitable Scottish legislative vehicle available. The Scottish Government have indicated that they will look to bring forward similar amendments for Scotland through their Criminal Justice and Licensing (Scotland) Bill, which already contains provisions on trafficking, to ensure consistency of the law across the UK. I commend the amendments to the House.
My Lords, I have much pleasure in putting my name to this amendment. The noble Lord, Lord West, may be thankful that he has tabled the amendment himself, because I swore last time that I raised the matter that if something was not done I would vote against the provision at this stage. I dare say that I might have won. That might not have been terribly good news for the noble Lord today. However, I am very grateful for his help in dealing with this matter and to the parliamentary draftsmen for having tabled the amendment, which we know is secure and will hold against that despicable crime, a crime that could not be dealt with it because of the lacuna in the previous law. Everyone knew that the lacuna was there, but it was hoped that somehow it could be got around. It could not. Now we have settled that with this amendment. I take full credit for it—just in case the noble Lord thought that he was going to. It was my amendment originally, although not my idea. I do not mind. I happily thank the noble Lord for producing his amendment.
My Lords, I add one word of thanks to the Minister for the amendment and those that go with it. We agree that there was a gap in the legislation and that the amendment seems to have adequately filled it, so that the exploitation of trafficking of babies for non-sexual purposes will now be included—whereas, as the noble Lord explained, in the case of Mrs Sandberg, there seemed to be a definite gap. That has now been closed. We are most grateful to the Government for that.
My Lords, I add my congratulations to the noble Lord, Lord West, and to the noble Baroness, Lady Hanham. It is clear that gaps have been exploited and that young people and children have just gone missing and no one can account for them in any way. With that in mind, one is sorry that the noble Lord, Lord Ramsbotham, will not be moving his amendments, but I understand that there is ongoing discussion about them. I hope that the Minister will confirm that.
Amendment 57 agreed.
Clause 53 : Duty regarding the welfare of children
57ZA: Clause 53, page 44, line 24, after “welfare” insert “, including the financial welfare,”
My Lords, this takes us to Clause 53 and a different part of the Bill. It is an important part. I do not propose to detain the House any longer than I can possibly help, but I hope that colleagues will understand that there is a great deal of concern. The concerns are mainly about asylum rather than immigration and borders, so I had some difficulty in trying to slip the amendment under the wire, so that we could discuss it.
We do not need a lengthy discussion, but I will listen with interest to what the Minister has to say.
The amendment seeks to clarify the duty on the welfare of children by including explicit financial provision. It has to be said at the beginning that Clause 53 is welcome as far as it goes. It is necessary to merge other Children Act provisions on the welfare of children with the provisions of this Bill, and the clause gives the Government new opportunities to make better provision, particularly for children under the age of 18 in families whose legal remedies have been entirely exhausted and who face voluntary return or deportation. That is welcome.
I accept that the Bill is not principally about asylum. We are promised a so-called simplification measure. We will get consultation on that later in the autumn, and we look forward to it. The Immigration Simplification Bill has already been published in draft. It is a massive Bill, but it has major omissions, one of which is proper provision to prevent the destitution of children in asylum-seeking families whose legal rights have been exhausted through the courts.
My concern is that the consultation phase in areas that are still quite opaque might take some time, and the political timetable suggests that an election next year is likely to intervene. That means that it is likely to be a long time before proper regulation for failed asylum-seeking families is given the necessary attention by way of primary legislation. The destitution that has resulted from the prevailing provisions will exist for a lot longer than any of us are comfortable with. This is urgent, and the amendment is a marker for what will be a keenly followed and keenly contested area of public policy in the autumn when the Government bring forward their provisions in the Immigration Simplification Bill.
I fully accept that the Government must have provisions for deportation and voluntary return in any immigration system, which is not easy. Government is not easy; indeed, I do not think that any of us is arguing that. Having said that, however, and having said that Clause 53 is welcome, the clause does not go nearly far enough to address the extent of the deprivation of families in the United Kingdom at the moment.
My former constituency of Roxburgh and Berwickshire, when I was a Member of the other place, did not have very much experience of asylum cases because it did not have that profile of constituency casework. However, since I have come to your Lordships’ House, and certainly after the Second Reading of this Bill, I have made it my business to look into the provisions that are made for those under 18 in families whose asylum rights have been exhausted, and I am shocked at some of the effects on small numbers of families who have to depend on Section 4 or Section 95 provisions for support. It is not an exaggeration to say that some families face destitution; destitution is not too strong a word.
I am also surprised and disappointed at the extent to which families and children in them are in a wholly different position. They are considered to be entirely separate from all other young people living in the United Kingdom. The lack of statistical provision to try to find out exactly what is happening to that category of young person is very worrying. The noble Lord, Lord Ramsbotham, has tabled amendments that seek to address that question. I add my voice to those who say that we really do not know the data and the statistics to enable us to understand the extent of the deprivation that stalks our land in this day and age.
Of course the people in the immigration agencies and the UK Border Agency are not hard-faced men—they are professionals doing the best they can in difficult circumstances—but one thing that they have to deal with more than anything else and which creates difficulties for them is that provisions that were made for short-term support are now systematically and as a matter of course being used as long-term support. As someone who follows social security law quite carefully, it is one thing for families to fall in and out of poverty. That sometimes happens. The circumstances of families after a short time in poverty are qualitatively and quantitatively entirely different from those of families after a long time in poverty. Families are being sentenced to levels of support that were meant for short-term provision over a long period of time. The evidence is that our system is sentencing people to the long-term use of systems that were never designed for that purpose.
I am concerned, too, about the backlog of cases. The latest evidence available to me, although I fully acknowledge that the backlog is being reduced, is that it will be 2011 before the 280,000 cases, which is the suggested current level of backlog in some areas, will be cleared. That means that the neglect of some of these families will continue until then. I could go on but I will not.
Reports are produced daily and weekly. One was produced a fortnight ago by Refugee and Migrant Justice, an organisation of excellent lawyers who defend human rights in the United Kingdom, and is called, Does Every Child Matter? I note the question mark at the end. It is an important part of the title, and I hope that the Minister will find a copy of that report in his red box over the Easter Recess, because it makes compelling reading.
If all that was not enough, there is a great deal of uncertainty about healthcare provision and failed asylum-seeking families’ access to healthcare and social work support. I was interested to hear about the Appeal Court ruling earlier this week by Lord Justice Ward. I have not seen the judgment, so I will make no comment, but the newspaper reports of that court case suggest that it will be even harder for failed asylum-seeking families to access healthcare. For all these reasons, we really cannot ignore this issue. We must do something about it.
Financial support could be addressed in all sorts of ways in the future, as the amendment suggests. The Independent Asylum Commission—an excellent organisation that produced three excellent reports which I have recently read and reread—concluded that the best way of getting financial support to these families is to allow them to work in some circumstances before they are invited to leave voluntarily or are deported.
If I had a little longer, I would argue at some length that the Section 4 voucher system, which requires people to have to exist on vouchers, is entirely discredited and should be abolished. It would be much more sensible and better value for money if the Section 95 more generous level of support was made available. The cost savings in winding up the voucher scheme would more than pay for the extra costs of the Section 95 provision.
Abolishing Section 9 will obviously be on the agenda. It is not directly related to financial support, so I will not say anything about that because I would be straying out of order. But we will want to return to abolishing Section 9 provisions in the autumn when the consultation begins.
The human rights environment has substantially changed since the 1999 parent Act on asylum was crafted, followed by the provisions of the 2004 Act. The United Nations Convention on the Rights of the Child, taken with the new appropriate and perfectly proper concentration on human rights in giving people dignity in a way that public policy applies to them, suggests that Section 4 vouchers and Section 9 provisions need to be seriously and urgently addressed.
Finally, this might sound like a cheap political point, but it is not meant to be. Our Prime Minister, Gordon Brown, has got an enviable and rightly drawn reputation for being passionate about child poverty. However, he seems to have forgotten this small group of vulnerable young people under our asylum provisions. It is time for the Government to accept amendments such as this and to look urgently at what they can do later in the consultation on the Immigration Simplification Bill. The Prime Minister’s wish in relation to children in other parts of the United Kingdom would be brought to bear on failed asylum-seeking families. Their need is great and their cause is just. At the moment, the system is badly in need of repair. I hope that this amendment will go some way to putting that situation right. I beg to move.
My Lords, I support the noble Lord in terms of Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act. The pilot for Section 9 found that a number of families simply disappeared from the system. Their children must be very vulnerable, with poor access to education and health as a result. It was very unsuccessful in its intention to return families to their home countries. I understand that two children entered care as a result of this process, so one family at least was broken up due to the Section 9 pilot.
The Government have been keen to retain this power, although I understand that they have not used it since. Perhaps the Minister will write to me on that. This is a strong power. We are all fallible and can all make mistakes. It troubles me that this power remains in the Bill and that it could be misused.
My Lords, I, too, support the amendment. I have seen the report, Does Every Child Matter?, which is very worrying. Although the refugee legal centre which produced this report is certainly supportive of the Government’s efforts and is, by no means, all critical, there are strong comments that there is a long way to go. It makes recommendations. We hope that the Minister will be able to explain further the Government’s programme and how well it has succeeded.
My Lords, I am grateful for this amendment, which provides an opportunity to explain more clearly what we mean by welfare in Clause 53. This is an important point, which we have not yet explored in our debates on the clause. Perhaps I may stick to that and not range so widely into the numerous areas raised by the noble Lord, which I do not think are exactly pertinent to the point on welfare. However, I should like to offer the noble Lord and the noble Baroness a meeting with officials to talk through the number of things we are doing to address quite a number of those issues that have been raised. They are not directly pertinent to this, but if that would be found to be useful, I should be very happy to do that. I am sure that can be arranged with officials.
It is valuable to bring up the point about welfare. As noble Lords know, the intention of Clause 53 is to mirror as closely as possible the effect of Section 11 of the Children Act 2004. We want the border force to be on the same footing as other public bodies which have significant dealings with children so that we can improve interagency working and be more effective in the way in which we jointly safeguard and promote the welfare of children, which I think all of us in this House will agree is extremely important.
For that to happen, all agencies involved need to share the same understanding of what we mean by welfare. In fact, DCSF’s statutory guidance on Section 11, the guidance on which we intend to draw heavily for Clause 53, already defines the word “welfare”. It may help if I quote from paragraph 2.7 of that guidance which states:
“In this guidance, welfare is defined … in terms of children’s health and development, where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development’”.
The following paragraph states:
“Safeguarding and promoting the welfare of children”,
is defined as,
“protecting children from maltreatment; preventing impairment of children’s health or development; ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully”.
The existing definition of welfare focuses on those elements which are most crucial to children’s well-being. It is a tried and tested definition and well understood by those in the field. I see no merit in creating a new definition specific to the border force, which I am sure is not what the noble Lord intended. I am also sure that this is a probing amendment. Not only would this risk distracting staff from the priority areas I have just outlined, but it would also risk causing confusion in relations with other bodies working with children and thus undermine the very objective we are seeking to achieve with the clause in the first place.
I hope the noble Lord feels that I have justified the Government’s position and understands that we wish to focus on the most crucial needs of children. The duty in this Bill is a significant step forward in the way that the border force will deal with children and it should be as closely aligned to the expectations of other organisations as possible. I shall be very happy to write to the noble Earl, Lord Listowel, on the point that he raised. I hope with this explanation that the noble Lord will feel able to withdraw his amendment.
My Lords, I would be happy to meet officials and I hope that such a meeting can be organised. I perfectly well understand the point about having a definition that is consistent across public policy. On that basis, I am happy to withdraw the amendment.
Amendment 57ZA withdrawn.
57ZB: Clause 53, page 44, line 24, leave out “who are in the United Kingdom”
My Lords, I am sure that several other noble Lords would like to take up the Minister’s invitation to discuss the duties that are to be placed on the UKBA as a result of Clause 53. In Committee, we were given assurances from the Minister in respect of guidance and commencement. That was further outlined in the Minister’s letter to the Joint Committee on Human Rights, to which reference was made earlier. The Minister assures the JCHR that, as he has just said, the guidance will follow as closely as possible the statutory guidance on making arrangements under Section 11 of the Children Act 2004, although there will be no way of resolving differences of opinion about the extent to which the declared objectives have been achieved. The letter says that the Home Office will liaise closely with key stakeholders in drawing up the guidance. We would like the Minister now to add that a copy of the draft will be deposited in the Libraries of both Houses, so that your Lordships and Members of another place can at least comment on them before they are finalised.
As the Minister will be aware from our earlier debates, we would like this clause to apply to all UKBA staff whenever or wherever they come into contact with any child. Staff based abroad, who are exercising immigration functions at juxtaposed controls, at entry clearance points and during escorted removals from the UK, should carry out their duties in relation to children with whom they come into contact whether that child is in the UK or not. As drafted, the clause protects only,
“children who are in the UK”,
even though staff abroad exercising a function in relation to a child in the UK are also bound by this, as was the case in the example given by the noble Lord, Lord West, to my noble friend Lady Miller in Committee, where a grandmother applied for a visa to come here to care for a sick child. That did not answer my noble friend’s question, which related to an application for a minor child to join a parent who had been granted refugee status in the UK. As my noble friend pointed out, this is a matter entirely within our jurisdiction, yet we all know of cases where, contrary to the best interests of the child, they have been kept waiting for many years.
We are also concerned about the exemption from the duty in Clause 53 of UKBA staff working at juxtaposed controls, at entry clearance points and on escorted removals. In the report Outsourcing Abuse by the Medical Justice Network, which has been referred to in previous sittings and was discussed at a packed meeting that I chaired last year in Committee Room 14 to celebrate the 60th anniversary of the Universal Declaration of Human Rights, reference was made to the alarming fact that 27 allegations involving children had been reported, with one in four of the assaults having taken place at the airport prior to take-off. However, once the flight is on its way, whether to Afghanistan or Sudan, for instance, it becomes much harder for any malpractice to be reported. None of the escorts employed on these duties is UKBA staff. The unpleasant task of removing failed asylum seekers is entirely delegated to contractors.
Here again, it is not a matter of transplanting our systems into other countries where there are entirely different arrangements, as the noble Lord has said; it is about seeking to ensure that staff under the control of the UKBA, and particularly its contractors, obey the same rules whether they are in the UK, on a plane flying to an overseas destination, at a consulate or at one of the juxtaposed controls. We have every right to prescribe how officials and contractors should behave in these locations, only refraining from imposing criminal sanctions for any breaches that could impinge on the sovereignty of other states. It might be noted that extraterritorial jurisdiction has been exercised in our law for centuries; in particular, it now protects the trafficked children whom we have just been discussing who are the victims of British criminals overseas. However, in this case we are talking about a code of conduct similar to that issued by the Secretary of State under Section 21 of the UK Borders Act 2007, which does not contain any criminal sanctions at all.
We accept entirely that, as with that code, the arrangements now to be made under Clause 53 for the actions taken by UKBA officials or their contractors in relation to offences against children would be limited to reporting what they know to the local law enforcement authorities and, of course, to the police in the relevant UK jurisdiction if the suspected offender is British. If the real reason for the Government’s hostility to this amendment is the fear that it would jeopardise the removal or deportation of a child with his family at the end of the asylum process when their appeal rights had been exhausted, we believe that this is misplaced. In all their duties relating to this process, the police and the local authorities are bound by Section 11 of the Children Act, which has caused no problems. The noble Baroness, Lady Ashton of Upholland, said when the matter was discussed during the Committee stage of the Children Bill in 2004:
“We have been very careful in the way in which we have worded this clause: we do not put a duty on agencies that would make them unable to fulfil their primary functions”.—[Official Report, 17/6/04; col. 995.]
The noble Baroness went on to say that the Immigration Service might do things that would be judged inconsistent with safeguarding and promoting the welfare of children, but in the 2007 Act this objection was overcome in the Section 21 code to the extent that all the acts of its staff in the UK up to and including putting the child on the plane to be removed are covered by the code.
Now we are talking about the arrangements that would have to be made beyond that point. We believe that this can be done. If an official in the UK can make arrangements to deport a child to an unsavoury part of the world, the new arrangements could equally allow the consul to refuse a visa, notwithstanding that in both cases the best interests of the child would be served by letting him remain here or by issuing him a visa to come here, as the case may be. The arrangements would have to be drafted so that in both cases the primary purpose of immigration control takes priority, as it does anyway under the 2007 Act. The flexibility of subsection (3) allows the Secretary of State to issue different guidance to officials at overseas posts and in the juxtaposed controls, if necessary making it clear that it is in the treatment of the child other than in making decisions under the immigration Acts that the duty comes into play. We consider that the words,
“who are in the UK”,
in Clause 53 are not required to maintain immigration control, but they leave vulnerable children who come into contact with UKBA staff while outside the UK perilously unprotected. I beg to move.
My Lords, I rise to support the noble Lord, Lord Avebury, and—I beg your Lordships’ pardon—to speak briefly to another matter related to Clause 53, which is the keeping of statistics. I know that the amendment has been withdrawn, but will the Minister write to the Science and Technology Committee of the House of Lords, setting out the debate on statistics, and take its advice on the most effective way of keeping statistics on children held in detention? We should look particularly at longitudinal statistics, because they provide a richer and better understanding of what is going on, allowing us to discuss more than snapshots. There may be an argument for undertaking a longitudinal study on a limited group in Yarl’s Wood.
My Lords, my comment is confined to saying that the noble Lord has raised an interesting point. If it cannot be dealt with in the way in which the noble Lord has suggested, perhaps there is a reason. If so, what methods are in place to protect such children, or could the Minister make suggestions instead?
My Lords, the effect of these amendments is to broaden the scope of the duty so that it applies when we are discharging functions related to children outside the United Kingdom. This would mean that the border force will be required to discharge its functions having regard to the need to safeguard and promote the welfare of children wherever it operates overseas, including in issuing visas. We are certainly mindful of the need for our staff operating overseas to understand the need to safeguard and promote the welfare of children, but applying a statutory duty to require them to do this is another matter entirely. Duties and obligations of this sort, for example under the 1951 refugee convention and the UN Convention on the Rights of the Child, are limited to people in the UK. It would not be appropriate for the border force to have specific statutory duties in relation to children who do not come under UK control and where our ability to give effect to the duty would be so dependent on local circumstances. This contrasts with the specific guidance we are developing for staff in this country.
We also need to be alive to the potential risks we would run in extending this duty. We have always made clear, based on the guidance accompanying Section 11 of the Children Act 2004, that this duty does not give the border force any new functions nor does it override the agency’s primary function to control the UK’s borders by applying the existing immigration legislation. But there is a danger that people overseas bringing up their children in conditions which fall well below the standards that we are accustomed to here—many children in the world arguably fall into this category—will see this new duty as offering a new route of entry into the UK for their families. That risks significantly increasing both the numbers seeking entry and, subsequently, the number of challenges based on the new duty. We are confident that we would be able to successfully resist those challenges, but we would need to devote considerable financial and human resources to the task. It would place real pressure on posts overseas, with the risk of significant delays to genuine cases. It is not a sensible way of organising our business and I ask noble Lords to reflect on this very carefully.
However, although we oppose a statutory duty, we recognise that there is much that we can do to safeguard children overseas. On the question of training, as I indicated in the letter that I sent to those noble Lords who spoke in our last debate, staff overseas and at the juxtaposed controls are drawn largely from experienced immigration staff from within the border force. They will have received mandatory training on children’s issues, and many have received training on interviewing children. Once in post, entry clearance and visa staff also receive regular briefings on issues involving the movement of children across international borders relevant to that region. This is particularly important in identifying and tackling child trafficking. We are currently rolling out a training package to support the Council of Europe Convention on Action against Trafficking in Human Beings, which the UK ratified in December. This is compulsory for all border force staff of grade 7 and below, including those serving overseas.
In higher-risk posts, particular measures are in place for spotting abuse. For example, risk assessment units overseas draw up risk profiles which are shared with the entry clearance staff. The entry clearance staff can then refer individual cases to the risk assessment unit to run sponsor checks—for instance, to verify that the sponsor is living at the address supplied with the application. The risk assessment unit can refer individual cases back to the UK for further sponsor checks to be carried by the Serious and Organised Crime Agency and others. In certain posts, we report cases to the local police and other authorities, but only where competent authorities exist and where this will not potentially put a child at greater risk.
It is also worth noting that we have made changes to the Immigration Rules over the past couple of years to protect children. For example, we have introduced new paragraph 46A, which makes specific provision for ensuring that suitable care and reception arrangements are in place for child visitors who seek leave to enter the United Kingdom. I hope that reassures the noble Baroness, Lady Howe, that we are addressing these issues.
As regards the juxtaposed controls at Coquelles, Calais and elsewhere in northern France and Belgium, specific agreements have been made with the local state authorities. If a person is refused leave to enter the UK or we suspect a child is at risk, we may hand them over to the authorities of the country of departure for processing according to the domestic law of that country. We have limited jurisdiction at these locations, where our actions are governed by international agreement. Once children have been referred, it is for the authorities in that country to determine the specific action to be taken in respect of each child according to their own official procedures. Border force officials do not lay down specific standards and outcomes for children who are referred in those circumstances and must rely on the procedures in place in that country. However, we are aware of the practices in France and Belgium and are satisfied that these adequately protect children as they do in the UK.
The noble Lord, Lord Avebury, asked about the sharing of drafts with those of your Lordships who have spoken in the debate so that we can take their concerns on board. We will do this, as recommended by the Joint Committee on Human Rights, before the Bill completes its passage through Parliament.
The noble Earl, Lord Listowel, asked me to write to the Science and Technology Committee. I see no difficulty in doing that. I would like to liaise and talk with anyone who can help resolve the problems over statistics that we debated at length in my office.
This has been a useful debate. I hope I have made clear why we do not think that a statutory duty is appropriate, but that we are nevertheless fully committed to children’s welfare in our dealings with them overseas. I therefore hope that the amendment will be withdrawn.
My Lords, I think that there is a misunderstanding between the Minister and myself. A few minutes ago he mentioned what would happen at the juxtaposed controls if it was found that a child had been the subject of a criminal offence by someone outside the controls—we would hand them over to the authorities in France or Belgium as the case may be. I totally agree with that. But I am not talking about offences which have been committed by someone outside the UKBA against a child, whether it be in the juxtaposed controls or in the country of origin where the child has applied for an entry visa. I am talking about the conduct of UKBA officials and of the contractors who are employed at juxtaposed controls. I am seeking to impose a code of conduct similar to the one that has been issued to those people under the UK Borders Act, and I cannot see what the objection is to that.
I am not going to go through the whole Code of Practice for Keeping Children Safe from Harm that applies now in the United Kingdom but, for example, paragraph 1.7 says inter alia that:
“The UK Border Agency will seek to ensure that children … Are seen first, foremost and fully as children rather than simply as migrants subject to immigration control, or as adjuncts to a principal applicant”.
Does that not apply at a consulate overseas or in a case where a child is being deported by aircraft to his country of origin?
The code says that children must be,
“listened to with respect; and where procedures and services are there to address their needs, a child should be involved as much as possible in applying them to his or her own circumstances”.
Can that not be applied other than in the United Kingdom? Are they not entitled to have their experiences taken seriously as well as checked against known records in their country of origin? Is that not applicable to a child who is applying for a visa in Lahore or Dhaka? I simply do not understand why the Government are so resistant to having any code of conduct applied to the UKBA staff and their contractors overseas.
I come back to the question asked by the noble Baroness, Lady Howe: what alternative means of protection is there for these children, not against criminals in the countries where they are located but against the misconduct of UKBA staff and their contractors? We have not heard the answer to that question. I am sorry that we have to withdraw the amendment today, but I assure the Minister that this is not the last he will hear of it. I beg leave to withdraw the amendment.
Amendment 57ZB withdrawn.
Amendments 57A to 57B not moved.
Clause 55 : Extent
Amendments 58 and 59
58: Clause 55, page 45, line 31, after “to” insert—“(a)”
59: Clause 55, page 45, line 32, at end insert “;
(b) the amendment made by section (Trafficking people for exploitation) (trafficking people for exploitation), which extends to England and Wales and Northern Ireland only.”
Amendments 58 and 59 agreed.
Clause 56 : Commencement
59A: Clause 56, page 46, line 2, at end insert “except sections 42, 43 and 44, which come into force on the day this Act is passed.”
My Lords, this amendment seeks to bring Clauses 42, 43 and 44 into effect when the Bill receives Royal Assent, leaving the rest of Part 2 until a day to be appointed by the Secretary of State. The reason for proposing this distinction is that the clauses in the amendment are about registration whereas the rest of Part 2, as its title states, is about acquisition by naturalisation. Clauses 42 and 44 deal with the rights of children born to members of the Armed Forces in the UK and abroad respectively. As a matter of fact, there seems to be an inconsistency between those two clauses, each of which has its own appointed day for coming into effect, and Clause 56(2), which provides that the whole of Part 2, including those two clauses, shall come into effect on a day to be appointed under that clause. If the intention is to bring Clauses 42 and 44 into effect on the same day as the rest of Part 2, the reference to an appointed day in each of the clauses is redundant, but if they are to come into effect on different days then they should obviously be excepted from Clause 56(2). I would be grateful for an explanation of how that inconsistency has arisen.
There is another reason for wanting Clause 43 to come into effect as soon as possible. A woman who will benefit from descent through the female line, as provided for in Clause 43, may be on another route to citizenship. An example has come to my attention in the past few days. Mrs A, who is a potential beneficiary of Clause 43, was married to a British citizen, has entered the UK as a spouse and reaches the end of her two-year spousal visa on 22 June. At that point, if Clause 43 has not come into effect, she has no option but to naturalise. She and others in the same or a similar position, having waited for many years to be allowed the same rights as children born abroad to British fathers, should not have the cup dashed from their lips at the last moment.
If the Minister does not wish to accept the amendment, will he explain how Mrs A and people like her can remain for a short while, without having to apply for citizenship as a spouse, so that they can indeed assert the right to citizenship that Parliament is offering them under Clause 43? I beg to move.
My Lords, this amendment would enable Clauses 42, 43 and 44 to commence on the day of Royal Assent rather than on such day as the Secretary of State may by order appoint. I shall respond in relation to each separate clause for ease of understanding.
Clause 42 provides for amendments to Section 1 of the British Nationality Act 1981 to clarify the rights of those born in the United Kingdom to a foreign and Commonwealth parent who is at the time of their birth, or who later becomes, a member of the UK Armed Forces. Clause 44 provides for a registration route to British citizenship for those born outside the United Kingdom and qualifying territories to a foreign and Commonwealth member of the UK Armed Forces.
Both provisions are dependent upon the commencement of Clause 47, which provides for a definition of,
“member of the armed forces”,
to be inserted into Section 50 of the British Nationality Act 1981. This definition is based on the relevant sections of the Armed Forces Act 2006. However, not all relevant provisions in the Armed Forces Act 2006 are yet fully commenced. The Government expect that these will be commenced in full by order in late 2009 and will then commence Clause 47 to introduce a definition of,
“member of the armed forces”,
into the British Nationality Act 1981. Only then will it be feasible in practice to commence Clauses 42 and 44. There are therefore valid practical reasons for resisting this amendment in relation to those clauses.
In relation to Clause 42 and the amendment of Section 1 of the 1981 Act, I can reassure the House that this provision represents a clarification of existing policy application rather than the creation of a new statutory right. Thus those born in the UK to a foreign and Commonwealth member of the UK Armed Forces will continue to acquire British citizenship by birth under Section 1 of the 1981 Act by virtue of the application of the definition of “settled” for nationality purposes—in other words, that definition will determine the answer to the question—and will not therefore suffer detriment resulting from a delay in commencement of Clause 42.
Clause 44 is a new registration entitlement. It is right to delay commencement for the practical reasons I gave earlier but those born outside the UK to a foreign and Commonwealth member of the UK Armed Forces will be eligible for registration as a British citizen under Section 3(1) of the British Nationality Act 1981, as is happening in the current case. They, too, will not suffer detriment in practice.
Clause 43 provides for an amendment to Section 4C of the 1981 Act, which provides for the registration as a British citizen of a person born before 1 January 1983 to a mother who could not, because of earlier discrimination in nationality legislation, transmit her citizenship status by descent to her child at birth. We wish to provide for this provision to be commenced by order so that we can put in place the necessary changes to UKBA nationality staff instructions, processes and training following Royal Assent to ensure that those seeking to exercise their rights under Section 4C of the British Nationality Act 1981, as amended, will be dealt with efficiently and comprehensively.
I am not in a position to comment on the individual case that the noble Lord raised. Given our success on earlier occasions of taking issues away and looking at the circumstances behind them, I should like to offer that facility to see whether there are ways of solving the problem without having to accept the amendment. As I understand the example, Mrs A has to nationalise to stay in the UK if Section 4C is not commenced immediately. I think it will be easier for me to write to the noble Lord and perhaps discuss it outside the Chamber to see whether we can find a sympathetic way of dealing with the individual problem. In the mean time, I ask the noble Lord to withdraw his amendment.
Amendment 59A withdrawn.
Amendments 60 and 61
60: Clause 56, page 46, line 13, leave out “section” and insert “sections (Trafficking people for exploitation) (trafficking people for exploitation) and”
61: Clause 56, page 46, line 13, leave out “comes” and insert “come”
Amendments 60 and 61 agreed.
Amendment 62 not moved.
62A: Clause 56, page 46, line 37, at end insert—
“( ) No order may be made commencing section 52(1)(a) or (c), (2)(a) or (c), or (3)(a) or (c) (transfer of immigration or nationality judicial review applications) unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.”
Amendment 62A agreed.
Amendment 63 not moved.
Amendments 64 and 65
64: The Schedule, page 47, line 16, column 2, at beginning insert—
65: The Schedule, page 47, line 16, column 2, at beginning insert—
“In section 4B(1), the word “or” immediately before paragraph (c).”
“In section 4B(1), the word “or” immediately before paragraph (c).”
Amendments 64 and 65 agreed.