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Lord Taylor of Holbeach
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I said on Report that I would table further amendments regarding the power to make regulations about the removal of family members.
In its 24th report the Delegated Powers and Regulatory Reform Committee remained concerned that the scope of the delegated power was still too broad and, as it currently stands, should be subject to the affirmative procedure. In seeking to address this concern, the amendment removes reference to making further provision for the removal of family members under any provision of the immigration Acts and limits the scope of the regulations so that they can not extend beyond the two provisions described, namely the time period for removal and the service of the notice to family members.
I hope that this reassures noble Lords that this limits the regulations strictly to procedural matters that should be subject to the negative resolution procedure. I therefore beg to move.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, Amendment 2 is to Clause 15(5), which provides that the tribunal may not hear a new matter unless the Secretary of State consents to its doing so. There was a debate on that provision on Report, and I am grateful to those noble Lords and noble and learned Lords who have had an opportunity since then to follow that up and to have a better understanding of the concerns which prompted the tabling of that amendment. Since the Government tabled this amendment a number of points have been raised by my noble friend Lady Hamwee and the noble and learned Lord, Lord Hope of Craighead. I hope that I can address those points in speaking to this amendment.
Our discussions were helpful and not least identified that the definition of a “new matter” is wider than necessary because it includes reasons for wishing to remain in the United Kingdom which, if refused, would not give rise to a right of appeal. This potentially extends the scope of the power to give consent beyond appealable matters. As the significance of “new matter” is restricted to circumstances in which an appeal would arise as a consequence of the decision, the definition should be similarly restricted—hence this amendment.
My noble friend Lady Hamwee has asked why the amendment does not address the substance of the arguments made on Report. The Government remain committed to the important principle that the Secretary of State should be the primary decision-maker. An amendment that provided for the tribunal to have discretion as to whether it should hear a new matter would undermine that principle. It could also create a substantial risk of satellite litigation about the circumstances in which that discretion should be exercised.
We have heard examples, particularly on Report, where it was suggested that it would not be right for the tribunal to be prohibited from hearing a new matter. It is our intention that the Home Office will publish detailed guidance on when consent should be given. I can assure your Lordships that the examples given—such as when the illness of the appellant makes determination of the appeal urgent, or where inadequate legal representation has meant that the new matter could not have been raised earlier—are the types of circumstance in which that guidance will direct presenting officers to give substantial weight when considering the issue of consent.
In certain circumstances, however, the Secretary of State’s consideration of a new matter is fundamental to that matter being correctly decided, including by the tribunal. For example, where the new matter is an asylum claim it is only the Secretary of State who, having taken fingerprints from the individual, can verify that the claim has not been made previously in the United Kingdom or another EU member state. It is in those cases that consent for the tribunal to hear the new matter may be refused. However, even in such cases, whether to grant consent will also be informed by the individual’s circumstances.
The noble and learned Lord, Lord Hope of Craighead, asked whether guidance would be provided for the situation where the presenting officer is unable to take instructions on whether to grant consent. I assure the noble and learned Lord that the guidance will provide for this situation. I can also elaborate on the details, which I hope will provide further reassurance.
Lord Hope of Craighead (CB)
My Lords, I express my gratitude to the Minister both for his amendment and for the clarifications that he has given on the guidance that will be given to tribunals. I am sure that the amendment helps to remove an element of doubt about the scope of the words “new matter”. It became clear as we discussed the matter following the debate on Report that some change was needed, and I am extremely grateful to the Minister for his willingness to listen to us and to deal with that point.
As for the guidance, I gave rather short notice of the point that the Minister has dealt with but he has dealt with it to my satisfaction. Again, I am very grateful to him for his willingness to meet us to discuss these rather tricky matters.
Baroness Berridge (Con)
My Lords, first, my apologies for missing the first two sentences of the debate on this amendment. I left 1 Millbank over the road as soon as debate on the Bill started but I am not as nimble as I thought and I make my apologies to the House.
I, too, am grateful to the Minister for his reflection on this matter since Report and for the amendment that the Government have laid. I join the noble and learned Lord, Lord Hope, in thanking him for the meeting that was arranged at short notice prior to the Recess. I, too, am grateful that the amendment narrows the definition of what the tribunal should consider to be a new matter and that what is or is not a new matter will be for the tribunal to determine according to the legislation. The narrowing of the definition is most welcome as, once the matter is determined to be a new matter, the tribunal cannot hear it without the consent of the Home Secretary.
I am also grateful for the specific guidance outlining the circumstances in which the Home Secretary will consent to such a new matter being in front of a tribunal. I am grateful for my noble friend’s explanation of what will happen if very junior counsel are in front of a tribunal when a new matter is raised and unfortunately they cannot get instructions or the file containing the necessary information.
Everything in the Government’s amendment is welcome as far as it goes but I do not think that it will come as any surprise to the Minister that I remain disappointed that the Government have not laid an amendment giving the tribunal an exceptional discretion to hear a new matter if the demands of justice require it. Justice is of course the overriding purpose of our courts and tribunals, and ordinarily the Secretary of State should be the primary decision-maker on a new matter but not if justice demands otherwise.
On Report, the constitution arguments were ably outlined by the noble and learned Lords, Lord Hope, Lord Woolf and Lord Brown. This is the first time that a party to any proceedings will have this kind of control over jurisdiction and I shall be interested to know—as I am sure all noble Lords will be—how it works out in practice. I would be grateful if the Minister could indicate whether, if this new power results in judicial review cases, there will be a way of keeping a record of the judicial review decisions in relation to the guidance and to consent being refused. Will those figures be available some time after the Bill is passed for the purposes of post-legislative scrutiny?
Lord Avebury (LD)
My Lords, the Immigration Law Practitioners’ Association has pointed out that this is a meaningless amendment because a tribunal would not be able to consider a matter that was not within its jurisdiction in any case. It is disappointing that the Government have not noticeably reflected, as my noble and learned friend assured me they would, on the alternative suggestions made by my noble friend Lady Berridge, on this clause, and supported by several noble and learned Lords, to give effect to the recommendations of the Joint Committee on Human Rights in its eighth report. Your Lordships were almost unanimous in condemning a proposal to allow one of the parties to an appeal to instruct the tribunal on what matters it can or cannot consider.
My noble and learned friend the Minister did not challenge the assertion that the tribunal had not allowed abuse of its own process in the past or had treated the Secretary of State unfairly, or that the existing process was inefficient. There was no suggestion on Report that the Government had raised any concern in the past over this alleged problem, but if we concede that there might have been cases in which a new matter—which is only to be defined in guidance, as we heard—was raised, that still does not mean that your Lordships should agree to grant this sweeping power to allow the respondent to veto the consideration of the new matter, even when the reason for its last minute appearance was the difficulty in getting hold of the presenting officer, as in one of the cogent examples given by my noble friend in introducing her amendments. In such cases the presenting officer who may have been unable to get instructions from senior counsel overnight can ask for an adjournment. My noble and learned friend did not say that he knew of any instance when such a request had been refused.
My noble friend said that she thought satellite judicial review went against what the Government were seeking to achieve, but that would still be the only way of challenging a decision by the Secretary of State to prohibit the use of a proposed new matter, after the amendment that is now before us. I asked my noble and learned friend whether the Government had made any estimate of the number of judicial review cases likely to be heard as a result of this provision and what would be the estimated reduction in the savings expected from it. I received no answer. I certainly agree with the suggestion made by my noble friend just now that a record should be kept of such cases.
The main reason why the Government insist that the Secretary of State should have this power seems to be, as we have heard, that she is the primary decision-maker of right on these applications rather than the late arrival of new matters, some of which is due to the inaccessibility of the Home Office. Nobody argues with that in principle, although my noble friend Lady Berridge pointed out that the Secretary of State had, in effect, voluntarily abdicated that role by allowing officials to make such a large number of wrongful decisions at first instance.
Even if that problem is solved, there remains a serious objection to what the Government propose. The fundamental principle of the rule of law is the right to a fair trial. In his wonderful book, The Rule of Law, the late noble and learned Lord Bingham emphasised that the right applies to,
“adjudicative procedures of a hybrid kind … proceedings in which one or more parties may suffer serious consequences if an adverse decision is made”.
He goes on to mention a recent case in the Supreme Court in Canada, where the Chief Justice, delivering the unanimous judgment of the court, said that,
“a fair hearing requires that the affected person be informed of the case against him … and be permitted to respond to that case. This right is well established in immigration law”.
Thus, if the applicant is denied the right to present what may be a crucial piece of evidence, he is denied the right to a fair trial. That right trumps the Secretary of State’s right to be the primary decider. This amendment, leaving Clause 15 effectively untouched, does not cover the mischief dealt with so effectively by my noble friend Lady Berridge.
Baroness Hamwee (LD)
My Lords, my noble and learned friend responded extremely speedily to my bank holiday inquiry, and I am grateful to him for that. The points about whether consent should be required for the tribunal to consider a new matter have been covered quite thoroughly, but I would like to mention the question of guidance. I was curious that this is guidance, because it must be guidance by the Home Office, and therefore the Home Secretary, to the Home Secretary. I would have understood had it been called a code of practice. The title does not really matter: it is the content. I wonder whether there is any distinction between the two.
Having seen the letter to the noble Baroness of 29 April, it seems to me that the way the guidance is described comes quite close to the exercise of discretion. I am aware that I have not put a question mark at the end of any of that, but I felt that I wanted to make those points.
Lord Woolf (CB)
My Lords, may I be forgiven if, despite my discourtesy in not being here earlier, I say a few words on this matter? It is very important, not only for the principles that noble Lords have clearly expressed already, but purely from a practical point. I urge the Government to think again about this, based on the experience of dealing with immigration cases for the majority of my career in the legal profession. The repeated use of the justice system to obtain delay was always a problem. I understand the motivation of the Government all too well, but that does not justify the departure from principle about which we have heard.
However, this is the point that I am most anxious to make. In reality, if the first tribunal before whom this matter is happening does not have the power to say what the procedure will be, that will create a lacuna which will be exploited more and more frequently by those who realise that they just need to make a new point and the Government’s representative will have to ask for adjournments so that he or she can take instructions on what action to take. Not only is this wrong in principle, it will create an undesirable position. Although it is not intended, it will undermine the status of those who adjudicate on these matters. More and more immigration matters are now being dealt with outside the High Court, so we should not be undermining that status but supporting it.
I urge the Government to take this away again. I do not think that they have met either the problems of principle that were raised on the last occasion that this was discussed or, more importantly perhaps, the practicalities of sitting on a tribunal and having to deal with applications. As an adjudicator, if you are in doubt about the right course to take, of course you can always adjourn. Most legal systems are plagued by unnecessary adjournments. In my view, what the Government are creating here is unnecessary scope for adjournments. Even if there is just the ability to make applications—you can never stop them—they will result in adjournments, which I would have thought is the last thing the Home Office wants.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have contributed to this debate. I do not think I tried to oversell what the amendment will do because it is in many respects technical and addresses a problem that was identified as the result of an amendment moved on Report by my noble friend Lady Berridge. Even those noble Lords who have raised questions acknowledge the principle that the Home Secretary is the primary decision-maker; it is something that Parliament has agreed. What this subsection seeks to do is to accept that there will be circumstances where the consent of the Secretary of State is given for the tribunal to hear a new matter, albeit that the Secretary of State is the primary decision-maker. I am also sure that the guidance will reflect what the noble and learned Lord, Lord Woolf, has said. It will be based on the great experience garnered over the years on how these tribunals work, and the intention is to facilitate rather than to frustrate.
I would say to my noble friend Lord Avebury that, as I indicated in responding to the point raised by the noble and learned Lord, Lord Hope, if a presenting officer, having considered the guidance, takes the view that consent should be granted for the tribunal to hear the new matter, he or she does not need to take instructions in order for that decision to be made. It is only where the presenting officer, having considered the guidance, takes the view that the consent should not be granted that instructions would need to be taken. I discussed the position with officials before coming to your Lordships’ Chamber today, not least because the noble and learned Lord, Lord Hope, had raised it, and I have been assured that it is very unlikely indeed that a presenting officer would be unable to take instructions. I shy away from using the word “impossible” because you can bet your life that, if I say that, something will happen in the first week. However, I am told that it is highly unlikely because an established process is in place by which the senior caseworkers in each presenting officer’s unit work on a rota system to provide these kinds of instructions to presenting officers. It is anticipated that there would be a very brief adjournment to allow the instruction to be taken.
My noble friend Lady Berridge asked about judicial review, a point that was echoed by my noble friend Lord Avebury. The Home Office keeps a record of the judicial reviews that are brought, and certainly it will continue to monitor closely the effectiveness of this new power. It is important to note that judicial review can be brought for a number of reasons, not just the ones that have been identified in this debate. The question I was asked was whether a record is kept, and the answer is yes. A record is kept which will help to inform a review of the effectiveness of this provision.
My noble friend Lady Hamwee is right inasmuch as this guidance is technically for the Home Secretary, but it is intended for the presenting officers who act on behalf of the Home Secretary. However, as I say, it will be published and so people will know what it contains. I also indicated to my noble friend when moving the amendment that, if the guidance is not followed and there is no sound basis for departing from it, I rather think that a judicial review may follow hot on the heels of any such decision. How the judicial review is determined is of course a matter for the courts, but the fact that it will be published should, I hope, provide some degree of certainty and consistency in how the Home Secretary exercises the consent provision set out in this subsection. I therefore commend the amendment to your Lordships.
Lord Avebury
“Persons unable to acquire citizenship: natural father not married to mother
After section 4D of the British Nationality Act 1981 insert—“4E The general conditions
For the purposes of sections 4F to 4I, a person (“P”) meets the general conditions if—(a) P was born before 1 July 2006;(b) at the time of P’s birth, P’s mother—(i) was not married, or(ii) was married to a person other than P’s natural father;(c) no person is treated as the father of P under section 28 of the Human Fertilisation and Embryology Act 1990; and(d) P has never been a British citizen.4F Person unable to be registered under other provisions of this Act
(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions; and(b) P would be entitled to be registered as a British citizen under—had P’s mother been married to P’s natural father at the time of P’s birth.(i) section 1(3), (ii) section 3(2),(iii) section 3(5),(iv) paragraph 4 of Schedule 2, or(v) paragraph 5 of Schedule 2,had P’s mother been married to P’s natural father at the time of P’s birth.(2) In the following provisions of this section “relevant registration provision” means the provision under which P would be entitled to be registered as a British citizen (as mentioned in subsection (1)(b)).
(3) If the relevant registration provision is section 3(2), a person who is registered as a British citizen under this section is a British citizen by descent.
(4) If the relevant registration provision is section 3(5), the Secretary of State may, in the special circumstances of the particular case, waive the need for any or all of the parental consents to be given.
(5) For that purpose, the “parental consents” are—
(a) the consent of P’s natural father, and(b) the consent of P’s mother,insofar as they would be required by section 3(5)(c) (as read with section 3(6)(b)), had P’s mother been married to P’s natural father at the time of P’s birth.4G Person unable to become citizen automatically after commencement
(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions; and(b) at any time in the period after commencement, P would have automatically become a British citizen at birth by the operation of any provision of this Act or the British Nationality (Falkland Islands) Act 1983, had P’s mother been married to P’s natural father at the time of P’s birth.(2) A person who is registered as a British citizen under this section is a British citizen by descent if the British citizenship which the person would have acquired at birth (as mentioned in subsection (1)(b)) would (by virtue of section 14) have been British citizenship by descent.
(3) If P is under the age of 18, no application may be made unless the consent of P’s natural father and mother to the registration has been signified in the prescribed manner.
(4) But if P’s natural father or mother has died on or before the date of the application, the reference in subsection (3) to P’s natural father and mother is to be read as a reference to either of them.
(5) The Secretary of State may, in the special circumstances of a particular case, waive the need for any or all of the consents required by subsection (3) (as read with subsection (4)) to be given.
(6) The reference in this section to the period after commencement does not include the time of commencement (and, accordingly, this section does not apply to any case in which a person was unable to become a British citizen at commencement).
4H Citizen of UK and colonies unable to become citizen at commencement
(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions;(b) P was a citizen of the United Kingdom and Colonies immediately before commencement; and(c) P would have automatically become a British citizen at commencement, by the operation of any provision of this Act, had P’s mother been married to P’s natural father at the time of P’s birth.(2) A person who is registered as a British citizen under this section is a British citizen by descent if the British citizenship which the person would have acquired at commencement (as mentioned in subsection (1)(c)) would (by virtue of section 14) have been British citizenship by descent.
4I Other person unable to become citizen at commencement
(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions;(b) P is either—(i) an eligible former British national, or(ii) an eligible non-British national; and(c) had P’s mother been married to P’s natural father at the time of P’s birth, P—(i) would have been a citizen of the United Kingdom and Colonies immediately before commencement, and(ii) would have automatically become a British citizen at commencement by the operation of any provision of this Act.(2) P is an “eligible former British national” if P was not a citizen of the United Kingdom and Colonies immediately before commencement and either—
(a) P ceased to be a British subject or a citizen of the United Kingdom and Colonies by virtue of the commencement of any independence legislation, but would not have done so had P’s mother been married to P’s natural father at the time of P’s birth, or(b) P was a British subject who did not automatically become a citizen of the United Kingdom and Colonies at commencement of the British Nationality Act 1948 by the operation of any provision of it, but would have done so had P’s mother been married to P’s natural father at the time of P’s birth.(3) P is an “eligible non-British national” if—
(a) P was never a British subject or citizen of the United Kingdom and Colonies; and(b) had P’s mother been married to P’s natural father at the time of P’s birth, P would have automatically become a British subject or citizen of the United Kingdom and Colonies—(i) at birth, or(ii) by virtue of paragraph 3 of Schedule 3 to the British Nationality Act 1948 (child of male British subject to become citizen of the United Kingdom and Colonies if the father becomes such a citizen).(4) A person who is registered as a British citizen under this section is a British citizen by descent if the British citizenship which the person would have acquired at commencement (as mentioned in subsection (1)(c)(ii)) would (by virtue of section 14) have been British citizenship by descent.
(5) In determining for the purposes of subsection 1(c)(i) whether P would have been a citizen of the United Kingdom and Colonies immediately before commencement, it must be assumed that P would not have—
(a) renounced or been deprived of any notional British nationality, or(b) lost any notional British nationality by virtue of P acquiring the nationality of a country or territory outside the United Kingdom.(6) A “notional British nationality” is—
(a) in a case where P is an eligible former British national, any status as a British subject or a citizen of the United Kingdom and Colonies which P would have held at any time after P’s nationality loss (had that loss not occurred and had P’s mother been married to P’s natural father at the time of P’s birth);(b) in a case where P is an eligible non-British national— (i) P’s status as a British subject or citizen of the United Kingdom and Colonies mentioned in subsection (3)(b), and (ii) any other status as a British subject or citizen of the United Kingdom and Colonies which P would have held at any time afterwards (had P’s mother been married to P’s natural father at the time of P’s birth).(7) In this section—
“British subject” has any meaning which it had for the purposes of the British Nationality and Status of Aliens Act 1914;
“independence legislation” means an Act of Parliament or any subordinate legislation (within the meaning of the Interpretation Act 1978) forming part of the law in the United Kingdom (whenever passed or made, and whether or not still in force)—
(a) providing for a country or territory to become independent from the United Kingdom, or(b) dealing with nationality, or any other ancillary matters, in connection with a country or territory becoming independent from the United Kingdom;“P’s nationality loss” means P’s—
(a) ceasing to be a British subject or citizen of the United Kingdom and Colonies (as mentioned in subsection (2)(a)), or(b) not becoming a citizen of the United Kingdom and Colonies (as mentioned in subsection (2)(b)).4J Sections 4E to 4I: supplementary provision
(1) In sections 4E to 4I and this section, a person’s “natural father” is a person who satisfies the requirements as to proof of paternity that are prescribed in regulations under section 50(9B).
(2) The power under section 50(9B) to make different provision for different circumstances includes power to make provision for the purposes of any provision of sections 4E to 4I which is different from other provision made under section 50(9B).
(3) The following provisions apply for the purposes of sections 4E to 4I.
(4) A reference to a person automatically becoming a British citizen, or a citizen of the United Kingdom and Colonies, is a reference to the person becoming such a citizen without the need for—
(a) the person to be registered as such a citizen by the Secretary of State or any other minister of the Crown;(b) the birth of the person to be registered by a diplomatic or consular representative of the United Kingdom; or(c) the person to be naturalised as such a citizen.(5) If the mother of a person could not actually have been married to the person’s natural father at the time of the person’s birth (for whatever reason), that fact does not prevent an assumption being made that the couple were married at the time of the birth.””
Lord Avebury
My Lords, the rationale behind this amendment, to put it as simply as possible, is to enable a child born before 1 July 2006 to a mother who is not married to the natural father to become a British citizen automatically, or to have an entitlement to be registered as a British citizen in circumstances where the child would have had either of those rights if the parents had been married.
I am grateful to the Minister for accepting in principle the amendment that I moved for this purpose in Committee and for deploying the formidable resources of the Bill team to turning the inadequate wording of my original attempt into the text now before your Lordships in Amendments 3 and 5, as well as for the useful exchanges that I had with the Minister and the Bill team during that process.
The reason for the cut-off date is that, after that, a child born to parents who were not married is already covered by the definition of “father” in Section 50(9A) of the British Nationality Act 1981—the BNA. These amendments will now cover the child born before 1 July 2006 whose mother never married the father or who was married to someone else at the time of the child’s birth. This reflects the way the Home Secretary has previously exercised discretion under the Act and will continue to do so for children born post-2006 where the mother’s husband is not the child’s natural father.
Proposed new Section 4F deals with persons who would currently have had an entitlement to register as British citizens under the specified sections of the BNA if their parents had been married. Currently, these persons can be registered at the discretion of the Home Secretary under Section 3(1) of the BNA, but Section 4F gives them an entitlement. If a person would be entitled to registration under Section 3(2) only, had their parents been married, registration under Section 4F gives them citizenship “by descent”—the status they would have acquired if their parents had been married. Section 14 of the BNA needs to be amended to secure this outcome, and this is accomplished by Amendment 5.
If a person would be entitled to registration under Section 3(5), had their parents been married, there is an additional discretion to waive parental consent. For the other specified subsections of the BNA in Section 4F, consent is required from both the mother and the “natural father”—the person who satisfies the proof of paternity regulations made under Section 50(9B) of the BNA.
Proposed new Section 4G covers those born after 1 January 1983 and before 1 July 2006 who would have become British citizens automatically if their parents had been married. The main beneficiaries of this section will be persons born in the UK to a British or settled parent who would have become British citizens under Section 1(1) or 1(1A) if their parents had been married and persons born abroad to a British parent who would have become British citizens under Section 2(1) if their parents had been married.
Proposed new Section 4H covers persons who were citizens of the UK and colonies immediately before 2 January 1983 but did not become British citizens because their parents were not married. This will benefit those who acquired citizenship through birth in a British colony and still had that status on 31 December 1982—for example, a person with a UK-born natural father who was born in a current overseas territory or was born in a former colony and did not acquire citizenship of that country when it became independent. Here again it is necessary to place these persons in the category “by descent” or “otherwise than by descent” to correspond with the status they would have had if their parents had been married. The distinction between these two categories occupies 26 pages of Fransman’s magisterial tome on British nationality law, so I hope your Lordships will be content with that reference.
Proposed new Section 4I benefits people who would have acquired British citizenship in three situations: first, if they were British subjects or citizens of the UK and colonies by birth in a former colony and would not have lost that status when that country became independent if their parents had been married; secondly, if they were British subjects before 1 January 1949 and would have become a CUKC on that date if their parents had been married; and thirdly, if they did not acquire the status of British subject or citizen of the UK and colonies but would have done so if their parents had been married. This will also benefit those who would have acquired citizenship under Section 5(1)(a), (c) or (d) of the British Nationality Act 1948. I am sorry to say that that will not apply to those whose parents had the right to register their births at a British consulate under Section 5(1)(d) while they were minors but omitted to do so. That reflects existing law for persons whose parents were married, and the rights of both groups will have to wait for a future opportunity.
Proposed new Section 4J defines a person’s “natural father”. It is interesting to recall that when the BNA was originally going through another place in 1981, the Minister—now the noble Lord, Lord Luce—said that citizenship could not be extended to illegitimate children because,
“the problem of identifying the father in such cases remains insurmountable”.—[Official Report, Commons, Standing Committee F, 17/3/81; col. 623.]
Watson and Crick had received the Nobel Prize for determining the structure of DNA 19 years earlier but the practical applications of their discovery were still a long way in the future. The power in proposed new Section 4J(2) is a broad one but this reflects the power to make different provisions for different circumstances that already exists in Section 50(9B) of the BNA. The provision is intended to benefit potential applicants and ensures that regulations for establishing the proof of paternity can be adapted if circumstances change; for example, following scientific advances.
It has not been possible to deal with the British Overseas Territories in these amendments because of course they would have to be consulted about any proposed amendments to the Act dealing with the forms of citizenship connected with those territories, as we have acknowledged. I would be grateful if my noble friend the Minister could assure me that the Government will launch such a consultation, preferably in the next Session of Parliament, so that, having done so, next time we have an immigration Bill we can deal with the limited number of stateless persons left with only BOTC status. At the same time this will enable us to annul some of the reservations we have put to our accession to the convention on the elimination of discrimination against women.
At Third Reading of the then Nationality, Immigration and Asylum Bill, the then Minister, the noble Lord, Lord Filkin, said:
“One can only go so far back in seeking to right the wrongs of history and of previous generations”.—[Official Report, 31/10/02; col. 298.]
My noble friend the Minister echoed this on the last day of Report. In the thickets and undergrowth of immigration law, there are still plenty of wrongs of history waiting to be rectified, but at least if your Lordships agree to these amendments they will remove most of the discrimination against people whose parents were not married that has infected our immigration law in the past. I beg to move.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord, Lord Avebury, for his explanation of his amendment. Immigration law is far more complicated than most people realise and he did a great service to the House in explaining his amendment, which of course we welcome and support.
Turning to Amendment 6 concerning the Long Title of the Bill, which the Government have amended, I share with your Lordships my confusion and hope that the Minister can give some clarification. I am grateful to the Minister for meeting me last week to discuss this and other issues. He gave me a letter explaining the amendments before us today, which was very helpful. But he also said about what was then Amendment 4 and is now Amendment 6 that,
“an amendment to the Long Title is necessary to ensure that it covers nationality matters”.
He then referred to the amendment moved by the noble Lord, Lord Avebury,
“with a view to appropriate amendments on the issue at Third Reading to create a new registration provision for persons born before 1 July 2006”.
However, he did not say that that was not the only amendment being made to the Long Title, because the amendment as printed—although not referred to in his letter—says that it also makes,
“provision about the removal of citizenship from persons whose conduct is seriously prejudicial to the United Kingdom’s vital interests”.
Yet when we debated that issue here in your Lordships’ House at both Committee and Report stages—they were very good and lengthy debates, unlike those which took place in the other place, which were rather cursory—it was decided, despite the length of the debate and the complexity of the issue, that an amendment to the Bill would be made removing the Government’s clause and inserting a new clause saying in effect that this was a complex matter which should go to a committee of both Houses. That amendment, in the name of the noble Lord, Lord Pannick, was passed by a majority of 62. Although that issue is not in the Bill, it is now in the Long Title.
Lord Taylor of Holbeach
My Lords, perhaps I may begin by taking this opportunity to thank my noble friend for tabling these amendments, which he will know we welcome. The House will recognise that nationality law is a complex and difficult area. Anomalies do arise, and have indeed done so, particularly as the way in which people view the family has changed since the British Nationality Act was introduced in 1981.
In 2006, amendments to that Act enabled illegitimate children to inherit nationality from a British father in the same way as a legitimate child. However, those amendments were not made retrospective. To have done so could have caused problems for individuals who were now adults and had made a life for themselves in a different nationality.
The amendments proposed by my noble friend today will enable illegitimate children born to British fathers before 2006 to register as British if they choose to do so. The measures apply to those who would have become British citizens automatically if they had been born legitimately. I realise that my noble friend is concerned also about the situation of those who could have become British if their unmarried parents had been able to register them as British, or in some circumstances if they had been able to register the birth with the consular service. However, the Government’s position—indeed, my noble friend restated it in his introduction—remains that we can go only so far to right the wrongs of history. There can be many reasons why parents may not choose to exercise these options and we cannot, therefore, now make assumptions about whether unmarried parents would have chosen to exercise them if they had had the opportunity to do so.
I know that my noble friend is also concerned about British Overseas Territories citizens. Changes to those provisions require consultation with the territories concerned and this has not been possible in the time available. However, I assure my noble friend that the Government will look for suitable opportunities to discuss this issue with the overseas territories once the provisions are implemented.
Baroness Smith of Basildon
I am sure that, as a former Member of the other place, I was not suggesting for one second that it does not have the right to look at our amendments and come to its own decisions. This is about the contrast between the two issues. While I am happy to accept the explanation that deprivation will be considered further by a Joint Committee of both Houses once the Bill leaves your Lordships’ House, that contrasts with the issues of the trafficking of children and guardians for trafficked children. That provision was passed by your Lordships’ House and does not now appear in the Long Title, even though it has been amended to deal with something that is not in the Bill in the same way. It is just that contradiction between the two and I would hope that the Minister can reassure me that, since this House has committed to the guardians for trafficked children, the Government will also remain so and are not taking for granted the support from the other place on the issue of deprivation of citizenship and making people stateless.
Lord Taylor of Holbeach
It would not be in my nature to take anything for granted where Parliament is involved. However, I think I made the position of the Government quite clear on guardians for trafficking when the amendment was considered, and the noble Baroness herself has been well aware of that. I hope she will accept what I am saying. It will be a matter of our listening to the House of Commons, as we must now call the other place, and giving it an opportunity to present to us what it considers of our amendments. That is a reasonable position to take. Meanwhile, this change to the Long Title facilitates the adoption of my noble friend’s amendments, which I hope the House will support because they will be welcomed by many and assist individuals hitherto precluded from British citizenship by historical anomaly. They will therefore be able to register as British citizens if they wish to do so. I am extremely happy to be able to offer my support to my noble friend in this matter.
Lord Avebury
I am extraordinarily grateful to the Minister for his kind remarks and for his undertaking to take an opportunity, I hope in the near future, to raise the question of overseas territories and how their position can be brought into line with what we are now about to agree, as far as our own citizenship is concerned.
We have whittled away at the wrongs of history in 2002 and 2006, and now again in 2014. It is not beyond the bounds of possibility that on a future occasion we will be able to rectify some of the remaining difficulties that affect our nationality law, particularly the wrong that I think we did to people whose parents did not register them when they were minors. It would have been right, not just in the case of the illegitimate but also for those who were born to married parents, to allow those individuals when they became adults to exercise the rights that their parents had not exercised on their behalf.
However, that is only a very minor niggle compared with my pleasure at being able to move an amendment that grants citizenship to people who are illegitimate in circumstances where, if their parents have been married, they would have had it long ago.
Lord Taylor of Holbeach
“( ) an order under section 43, or under a section amended by such an order;”
Lord Taylor of Holbeach
My Lords, Amendment 4 is a technical amendment concerned with bank account measures. It is intended to ensure that, should any of Clauses 40, 41 or 42 be amended by the Treasury using the power provided in Clause 43 in such a way that further matters may be specified by order under any of those provisions, then any orders so made will be subject to the affirmative resolution procedure.
Clause 43 currently gives the Treasury the power to amend any of Clauses 40, 41 and 42 to allow it to ensure that the restriction on opening accounts remains effectively targeted. This power allows the Treasury to amend those provisions in such a way that a particular matter could be specified in a further order, should that be considered appropriate. To give an example, Clause 42 could be amended so that the reference to “bank” means a reference to an institution of a type to be specified in a further order made by the Treasury.
In that example, though, any subsequent order that specified the types of institution would then properly be made under the amended Clause 42, rather than by Clause 43. Any order made under Clause 43 that amends any of Clauses 40, 41 or 42 is already subject to the affirmative resolution procedure. However, orders subsequently made under Clauses 40, 41 or 42 are not referred to in Clause 74(2) of the Bill, which means that without this amendment they would be subject to the negative rather than the affirmative procedure. Given the importance of the matters involved, the Government’s intention is that any such order should be subject to the affirmative resolution procedure, and the amendment confirms that the affirmative procedure should therefore apply. I beg to move.
Lord Avebury
“Part 8AProvision relating to persons unable to acquire nationality because natural father not married to mother British Nationality Act 19811 (1) The British Nationality Act 1981 is amended as follows.
(2) In section 14 (meaning of “British citizen “by descent””), in subsection (1), after paragraph (d) insert—
“(da) the person is a British citizen by descent by virtue of section 4F(3), 4G(2), 4H(2) or 4I(4); or”.(3) In section 41A (registration: requirement to be of good character), in subsection (1), after “5,” insert “4F, 4G, 4H, 4I”.
British Nationality (General) Regulations 20032 (1) In regulation 14 of the British Nationality (General) Regulations 2003—
(a) after “4D(3)” insert “or 4G(3)”;(b) after “section 4D” insert “or 4G”.(2) The provision inserted into regulation 14 by this paragraph may be amended or revoked by the exercise of the powers conferred by section 41 of the British Nationality Act 1981 as if that provision had been inserted by those powers.”
Lord Taylor of Holbeach
Lord Taylor of Holbeach
My Lords, I will be moving this amendment formally at the conclusion of what I believe is now the practice of the House to thank the House and Members of the Bill team at this stage of the proceedings. I should like to do so because this has been an extremely interesting Bill. I have enjoyed myself in taking it through and have enjoyed the House’s engagement with the issues that have been presented. Even this afternoon, although we have been dealing with clearing-up matters, we have had the opportunity to listen to the power of argument of noble and learned Lords, my noble friends and the noble Baroness, Lady Smith of Basildon.
A lot of people have been involved. I thank in particular my noble and learned friend Lord Wallace of Tankerness and my Whips, my noble friends Lord Attlee and Lord Ahmad. They have been great stalwarts during the period in which we have been taking this Bill through. I thank the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Rosser, who have been extremely courteous to me throughout the proceedings. We have had the opportunity of a number of meetings that have helped the passage of the Bill through the House and have improved it. I particularly thank my noble friend Lady Hamwee, as a coalition partner, the noble Lord, Lord Avebury, and a number of other noble Lords from the Lib Dem Benches who have provided penetrating observations on the Bill, from which we have all been able to benefit.
A lot of other government departments have been involved in the Bill. I hope noble Lords will realise that it is not just the Home Office but the Government who have brought forward the Bill. I am sure that noble Lords will recognise the way in which my noble friend Lord Howe has worked to establish the health provisions in the Bill in the context of health reforms generally. It was a great advantage to us all to have the opportunity of a joint meeting with him.
Although they are not in their places, I thank the noble Lords, Lord Hannay and Lord Best, for making it possible to find ways of dealing with the issues concerning students and landlords, which were causing a great deal of anxiety when the Bill appeared before the House at Second Reading.
There are too many noble Lords to mention by name. I shall just say to all those who have been involved in this Bill that I hope they will look back on it with pleasure and know that they have been party to a Bill dealing with an important matter in a proper way.
We are all grateful to our friends in the Box and the many elsewhere who have been briefing us. We have been very demanding. The House has been extraordinarily demanding of their time. That is quite proper, and they would not wish it to be any other way. They have responded as we have asked. It reflects great credit on the skills and abilities of those who lie behind Ministers at the Dispatch Box that they have been able to satisfy the House in the way that they have. With those words, I beg to move.
Baroness Smith of Basildon
I concur with the comments made by the Minister and respect those about this being a much improved Bill. That is accurate. We are pleased that the Bill has seen significant improvements, with amendments and concessions from the Government addressing issues raised by noble Lords. I was also pleased that he thanked the noble Earl, Lord Attlee, for his help and advice during the passage of the Bill.
I also thank the Minister. Where he has been unable to address issues from the Dispatch Box, he has been prepared to meet and discuss them, and to clarify those issues in writing. All noble Lords who have taken part in these debates have contributed to the improvement of the Bill, and we hope that some of those improvements will remain as debates continue. There are others that we would have liked to have seen and have not been able to achieve, but we still agree with the noble Lord that this is an improved Bill from that which presented itself to your Lordships’ House.
I add my thanks to colleagues, not only on the Labour Benches but across all Benches, who have put a lot of work into and contributed much to the Bill. I also thank the Bill team for its efforts and for being prepared to meet, and the Labour research team that helps us on our side of the House. It is no surprise that Sophie Davis, who has been advising the Labour Front Bench on this, was the Labour researcher of the year, which we all thought was very well deserved. We look forward to another Bill and another debate in the next Session.
Baroness Hamwee
My Lords, with the leave of the House—I know that it is unusual to speak at this stage—I promised my noble friends that I would say something at the appropriate point. It will have been an open secret to your Lordships that a number of us on the Liberal Democrat Benches have found these issues particularly difficult. The negotiations within our little group were sometimes quite difficult, because these are difficult issues.
I am sure that in the next Session we will tax my noble friend the Minister with matters that are mostly outside the scope of the Bill but which some of my noble friends showed considerable ingenuity in raising. I thank the Minister personally for his generosity, including extraordinary generosity with his time and his patience.