House of Commons Hansard Debates for 13 Jun 1990

Column 328

(Mr. Maclennan), who said that the new clause is narrow. It would help progress this evening if I were to treat it as such. I was glad that the hon. Member for Edinburgh, Central (Mr. Darling) appeared to be happy to accept new clause 12 in place of new clause 1. He raised a number of issues ; and indeed every hon. Member had his own ideas about what he would like to see in the Governor's report. I have noted those points and I will consider them with my right hon. and learned Friend the Home Secretary and with the Governor. However, the new clause requires the report to be on the Governor's functions under the Bill. The Governor will certainly want to set his report in the broadest context so that it is useful to the Home Secretary, to the Government and to the House so that we may all judge how our duties and responsibilities are being discharged in Hong Kong.

The hon. Member for Bradford, West (Mr. Madden) and my hon. Friend the Member for Hertford and Stortford (Mr. Wells) were anxious that the report, which I said would be made available to the House by the Home Secretary, should be debated. That is not a matter for me or for the Home Secretary ; it is a matter for the House. However, the Home Secretary and I would be pleased if the report was debated in the House because we would like Parliament to give continuing attention to Hong Kong and to the evolution of our duties and responsibilities there.

The hon. Member for Bradford, West also wondered whether the appropriate Select Committees, either the Foreign Affairs Select Committee or the Home Affairs Select Committee, would also take a close interest in these matters. Again, that is not a matter for the Home Secretary, the Foreign Secretary or me ; it is a matter for the Select Committees concerned and the House. I hope that those Committees will interest themselves in the subject, and it would be valuable if they did.

Most of the other points that were raised in the debate either affect issues on which I cannot give definitive answers now or relate to matters that will arise in later amendments. However, I want to refer to an observation made by my right hon. Friend the Member for Chingford (Mr. Tebbit). I intervened once in his speech and I did not want to encourage him by doing so again. He said that a Minister--I do not know who he was referring to--intimated on Second Reading that the Government believed that the Government of China were happy with the Bill. No Minister made such a statement on Second Reading. However, my right hon. Friend the Foreign Secretary said that he hoped in due time that the Government of the People's Republic of China, and I hope some of my hon. Friends, would come to understand fully the intentions of the Bill and be happy with the results that it produces.

Mr. Adley : May I ask my hon. Friend--

Madam Deputy Speaker : Order. The Minister was not giving way. He has resumed his seat, and it is now my duty to put the Question. Question put and agreed to.

Clause read a Second time, and added to the Bill.

Column 329

New Clause 2

Role of the Courts

Nothing in this Act effects the Jurisdiction of any Court to entertain proceedings of any description concerning the operation of any provisions of this Act or made under it.'.-- [Mr. Darling.] Brought up, and read the First time.

Mr. Darling : I beg to move, That the clause be read a Second time.

Madam Deputy Speaker : With this it will be convenient to consider the following amendments : No. 37, in clause 1, page 1, line 21, leave out Neither'.

No. 38, in page 1, line 21, leave out nor' and insert or'. No 39, in page 1, line 22, leave out any reason' and insert reasons'.

No 40, in page 1, line 23, leave out from Act' to end of line 24. No. 49, in page 1, line 24, at end insert--

( ) Nothing in this Section affects the jurisdiction of any Court to entertain proceedings of any description concerning the rights of any person under any provision of this Act.'.

No 18, in clause 3, page 2, line 41, at end insert--

(5) Any Hong Kong resident of a class, group, category or description qualified for registration under subsection (1) above, Schedule 1 and Schedule 2 to this Act who, having made application to the Governor to be recommended for registration under section 1(1) of this Act, is not so recommended shall have the right of appeal to the Secretary of State.'.

Mr. Darling : We move from new clause 12, which was uncontroversial, to one that may be controversial. However, as it is quite narrowly focused, it may be possible narrowly to focus our discussions on it. The purpose of the new clause is to make it clear that it will be possible to raise proceedings judicially to review any decision that may be made under this legislation.

It would not normally be necessary to add such a new clause because it is normally well settled in law that it is possible to review any administrative decision. Unfortunately, because of the language in which the Bill is framed, it would appear that it is the Government's intention to exclude any such possibility.

Before considering the question of judicial review, as there was some confusion when we discussed the matter in Committee, perhaps I should make it clear exactly what we are discussing. We are not discussing the possibility of an individual appeal ; we are discussing the more narrow legal concept of judicial review of a decision.

If I illustrate it, the position will perhaps become clear. If an individual were awarded a certain number of points under the scheme, it would not be possible for him to appeal simply because he did not like the number of points that he was allocated. It would be possible to raise proceedings only if his allegation was that those allocating the points had taken into account matters that they should not have taken into account or, alternatively, failed to take into account matters that they should have considered. It is a well settled point of law, but it is fairly narrow. It is the way open to individuals to question an administrator when an administrator has done something that he should not have done because he had no power to do it or, alternatively, when an administrator failed to do the things that he should have done.

I want to make that point clear because this is not a wrecking measure ; it is not as amendment No. 18 appears to be. I do not see any purpose in clogging up a system to

Column 330

allow perhaps 200,000 appeals for anyone who was aggrieved who did not qualify under the scheme. That would be quite wrong. I make the Opposition's position quite clear. We oppose the legislation for the reasons that we have outlined, but it has not been our purpose, either in Committee or today on Report, to put forward amendments other than in the spirit of trying to improve a Bill as best we can, notwithstanding the fact that we consider that its basis is wrong. It is quite wrong that the Government should attempt or purport to exclude any possibility of appeal. Clause 1(5) provides : "Neither the Secretary of State nor the Governor shall be required to give any reason for any decision made by him in the exercise of a discretion vested in him by or under this Act and no such decision shall be subject to appeal or liable to be questioned in any court." On one construction that would mean that it would not even be possible to question any decision, let alone any appeal, and it could be that anyone attempting to lodge papers to start appeal proceedings would be told by the clerk, "Sorry, any proceedings under this Act are simply not competent." I know that the Government have a slightly different interpretation, and I shall refer to it shortly, but perhaps it should be stated again and again that it does not matter what any hon. Member says during proceedings in this House. A court will have regard to what is in the Act, not to what Ministers or hon. Members have to say.

That issue was raised in Committee, and the Government's position was set out in a letter by the Minister to my hon. Friend the Member for Newham, North-East (Mr. Leighton). The Minister said : "I have now considered the matter again but have concluded that an amendment would indeed be unnecessary, and furthermore would be unhelpful."

I am bound to say that I cannot see how spelling out a citizen's rights can ever be unhelpful, but, to the Government, perhaps such a step would be unhelpful. The Minister went on to say :

"Whatever grounds there may have been for including section 44(3) in the 1981 Act there are none for including a corresponding provision in the Bill."

Section 44(3) of the 1981 Act, which is the British Nationality Act that governs citizenship in this country, has a similar privilege. It states quite explicitly :

"Nothing in this section affects the jurisdiction of any court to entertain proceedings of any description concerning the rights of any person under any provision of this Act."

In other words, it is quite clear that, under the British Nationality Act 1981, it is possible, and is explicitly stated, judicially to review any decision made under it. There is no corresponding provision within the Bill, and our new clause would add one.

The Government seem to think that there is a distinction between the 1981 Act and this Bill. Again I refer to the letter from the Minister to my hon. Friend the Member for Newham, North-East. He said that the 1981 Act

"confers entitlements to be registered as a British citizen The Bill confers no such rights".

I fail to see that distinction. The 1981 Act spells out when one is entitled to citizenship and when one is not, and the Bill sets up a system, but the result is exactly the same. Under the Bill, it is possible to acquire British citizenship with all the rights that citizenship acquired under the 1981 Act can achieve. I believe firmly that it should be possible judicially to review decisions made either under this Bill or

Column 331

under any other Act. As I said, the Bill entitles an individual, if he or she has a grievance about how the system works, to air it before a court. That seems to be a basic concept of human rights and one that we should not exclude.

Dr. Norman A. Godman (Greenock and Port Glasgow) : Will my hon. Friend confirm that the new clause would protect a person who was deemed to be not of good character? Could such an individual appeal against such a judgment?

Mr. Darling : It depends. To appeal or to get a court to uphold that the decision was bad, he would have to show that the Secretary of State took into account factors that he should not have taken into account before coming to his conclusion. If the Home Secretary, in exercising his discretion, takes account of all relevant considerations, the matter is not subject to appeal.

6.15 pm

In other words, if the Home Secretary looked at all the facts before him and said, "I think that this person is of bad character," that would be the end of the matter. However, if he looked at all the facts before him and they did not disclose evidence of bad character but he then said, "I do not like this individual because he voted Labour at the last election ; therefore, I think that he is of bad character," that matter could be reviewed judicially, or at least it could be so reviewed under the new clause.

Mr. Madden : Will my hon. Friend confirm that, as he rightly says, under the 1981 Act it is impossible for an applicant who is refused to appeal? Indeed, there is no right for an explanation from the Secretary of State if an applicant is refused. However, it is possible for an hon. Member or a Member of the other place to ask the Secretary of State for an explanation. Clearly, if the decision is thought to have been taken on incorrect information, it is possible to ask the Secretary of State to review the decision to refuse citizenship. Am I right in assuming that, if that were the case under this scheme, it would be open to residents of Hong Kong who are refused to ask Members of this House or Members of the other place to make representations to the Secretary of State in the way that I have described?

Mr. Darling : The answer to my hon. Friend's question is no. The subsection to which I referred makes it clear that neither the Secretary of State nor the Governor shall be required to give any reason for any decisions. That matter was raised at some length in Committee. It would appear that, as the legislation is phrased, no reason shall be given. That means that any aggrieved individual may be at some disadvantage. In the case of a decision by a housing department in failing to allocate a set number of points to a housing application, it is normally quite easy for an individual to find out why the decision was made.

The Government have phrased the Bill in terms to exclude the giving of reasons. That is regrettable. It is regrettable also that, as I understand it, it appears to be the view of those at least who purport to speak for Hong Kong--those who come to this country--that that is entirely acceptable in Hong Kong. I do not accept that. Our new clause would not put that right. We explored that matter in Committee, but we are not able to do so on Report. Those in another place, when considering the legislation, may want to return to that point.

Column 332

I accept that my new clause is limited to that extent, but my primary concern at this stage is to ensure that it is possible for a judicial review to take place. As the Bill stands, the Secretary of State and the Governor do not need to give any reasons, and the matter cannot be questioned in court. That is wrong. I am trying to put right the appeal point. We tried at an earlier stage to put right both points.

Mr. Maclennan : Will the hon. Gentleman clarify whether, in moving new clause 2, it is his intention effectively to repeal the provision in clause 1(5) which would exclude decisions which have been taken in the exercise discretion from liability to be questioned in a court? On the face of it, it seems that the new clause would achieve that result. Is that the hon. Gentleman's intention?

Mr. Darling : Indeed it is. I am not too proud to say that I took a leaf out of the hon. Gentleman's book. In Committee he attempted a similar exercise with about as much success as I anticipate achieving this evening. The obvious criticism that the Government will make is that I am breaking new ground, but all I am doing is following the 1981 Act, which sets out as a general proposition that no reasons will be given and no challenges made. That excludes the sort of appeal about which I spoke earlier. It goes on to state that nothing in the Act could possibly exclude the question of judicial review. If any matter comes before the courts, those acting for the Home Office may well say that, if Parliament had intended there to be an appeal, it would have followed the same model as the 1981 Act, which this Bill does not. That is why it is so important that Parliament leaves the courts in no doubt that we do not want to exclude the possibility of reviewing an administrative decision.

In my experience, if administrative decisions are not subject to review, it creates an injustice and tends to make for bad decision making. We have many examples of that. With the best will in the world, people who make administrative decisions tend to make better ones if they think that they may be held to account and questioned at the end of the day. Obviously the Government know that the scheme has drawbacks and flaws. They have been touched on, particularly by Tory Members, or at least by those who are making constructive suggestions on the Bill. Obviously those who will make the decisions are aware that they may run into difficulty. It was understandable that those who put together the initial drafts--I expect that they were administrators themselves--were keen to exclude any possibility of appeal. I am sure that many who take administrative decisions, if left to to their own devices, would like to exclude appeal in a wide range of Bills.

It would be wrong if we were to agree with any idea that judicial review should be excluded. Judicial review would improve the Bill and it would not in any way undermine the intention behind the Bill. Indeed, that is not the purpose of the new clause. It would make for better administration, and it would certainly get round the obvious injustice where someone believes that something has gone wrong for example, in the allocation of the points system, yet can do absolutely nothing about it. We have talked about the resentment that the scheme will create, which is undeniable, but a greater injustice and resentment will be caused if individuals feel that they cannot air a grievance either here or in Hong Kong.

Column 333

Mr. Marlow : I apologise to the hon. Gentleman if he has already covered this point, but I had to leave the Chamber, as one does from time to time. Will he make it clear--no doubt he is seduced by what he reads in the opinion polls--whether, if there were a Labour Government, they would introduce judicial review into this Bill?

Mr. Darling : I do not think that we would have any difficulty in introducing the possibility of judicial review into any administrative decisions. We may have something to say about that before too long.

Mr. Marlow : Is that the hon. Gentleman's intention?

Mr. Darling : One advantage of having passed new clause 12 is that we shall have an opportunity to review how the Bill works. I cannot give any commitment about what legislation we are proposing. It will depend on what the circumstances allow.

Mr. Peter Lloyd : Will the hon. Gentleman give way?

Mr. Darling : If I may finish the point, I shall certainly

Mr. Lloyd : I am trying to be helpful.

Mr. Darling : I am sure that the Minister is trying to be helpful. If the opportunity presents itself, I cannot see why we would not want to introduce judicial review as a safeguard. It is an important point of principle as well as one which would improve the Bill.

Mr. Lloyd : The question is not whether a Labour Government would make judicial review available under the Bill. It is available. It is just that clause 1(5) states categorically that judicial review will not be available where the Governor or the Secretary of State is exercising a discretion. For the rest of the Bill, judicial review is available, as it always is in every Bill.

Mr. Darling : I thought that the Minister was going to be helpful, but he was simply getting his oar in early. I am coming to that argument. The Minister wrote to me on the subject and I shall deal with it.

To complete the point raised by the hon. Member for Northampton, North (Mr. Marlow), we have already made it clear that, as any incoming Government would do, we shall see how things are working generally, and this provision will be no different.

In a memorandum which the Minister circulated, he put the Government's view, which is that nothing in the Bill excludes the jurisdiction of the courts from carrying out a judicial review. Therefore, I cannot see why he should object to new clause 2, which makes that explicit rather than leaving interpretation to a memorandum or statements from the Dispatch Box which have absolutely no bearing on any judicial determination.

Mr. Lloyd : Perhaps I do not follow the hon. Gentleman's case. It seems from the wording of the new clause that it would override, or be in conflict with, clause 1(5). If it would not, and is merely asserting that on anything other than discretionary matters, the conduct of the Governor's responsibilities under the Bill and the Orders in Council will be a subject of judicial review, there is little between us.

Mr. Darling : Discretionary decisions are not subject to judicial review anywhere so long as the person exercising

Column 334

the discretion carries out his normal duties in reaching the decision. There is no difference between us on that. The new clause would do exactly the same as section 44(3) of the 1981 Act. It would make it clear beyond doubt, so that no judge would have any difficulty with the point, that it is not intended to exclude the possibility of judicial review where the circumstances warranted it. That is the only difference between us. New clause 2 follows the pattern of the 1981 Act.

I accept that ministerial discretion cannot normally be subject to judicial review unless the Minister considers matters which he has no business to consider or fails to look at all the matters at which he should look. That is well settled. I see no difficulty about that. I read the Minister's letter and explanatory memorandum, and there is a difference between us. I am not convinced by them, which is why I am introducing the new clause.

Mr. Maclennan : The trouble is that the new clause does not follow the language of the 1981 Act but goes wider. The 1981 Act deals with rights, whereas the new clause deals with the operation of any provisions of the Bill. That would have the effect of repealing the effectiveness of clause 1(5), which is why I asked whether that was the hon. Gentleman's intention.

Mr. Darling : I must have misunderstood the hon. Gentleman's earlier intervention. For the avoidance of doubt, may I say that the effect of the new clause would be to qualify clause 1(5) to make it clear that clause 1(5) would not fetter the discretion of the court to review any decisions made under the Act, as it will become. I am willing to negotiate on the words and the exact language, but I fear that that is not the difficulty. The Government do not like the intention behind the new clause. This is not a grammatical argument so much as one of substance.

Mr. Adley : To resolve the misunderstanding between the hon. Member for Edinburgh, Central (Mr. Darling) and the hon. Member for Caithness and Sutherland (Mr. Maclennan), may I suggest that the hon. Member for Edinburgh, Central might like to look at the four amendments which I have tabled which attempt to achieve the same objective as his new clause, but do so more simply by deleting the last sentence of the clause? If the hon. Gentleman would like to take over my amendments, I am happy to let him do so.

Mr. Darling : Exactly that approach was adopted by the Opposition in Committee. We tried another way of achieving the same result. The hon. Gentleman will know that there are certain restrictions on us on Report, and it was necessary to make certain adjustments to accommodate other matters. With respect, I do not think that that is the problem. The problem is that the Government do not like the idea. I dare say that, when the Minister replies, the hon. Gentleman's suggestions will receive no more encouragement than my new clause.

Mr. Marlow : Will the hon. Gentleman give way?

Mr. Darling : May I progress a little? I do not want to get bogged down--

Mr. Marlow : I confess that I am not a lawyer and am not au fait with what judicial review is, what the courts can do and so on. Will the hon. Gentleman answer a clear question? If a Hong Kong citizen sought a passport through the quota system and was aggrieved at not

Column 335

obtaining one as a result of administrative discretion, would the hon. Gentleman's amendment allow him to take the matter before the courts?

6.30 pm

Mr. Darling : Only if the aggrieved person could show that the person who exercised discretion had considered matters that he should not have considered or took into account extraneous considerations. If the person who exercises discretion, the Governor, followed the points system and allocated the points in exactly the way in which he was supposed to do under the scheme, there could be no appeal. The appeal would come into play only if the aggrieved person could show that the Governor had, for example, taken into account something that had nothing to do with the case. Under the Bill or any other provision, he is not empowered to take into account extraneous factors.

The new clause would not have the effect of granting a common right of appeal. There is nothing new about judicial review. It is a well established branch of the law of this country and, indeed, many others. It is a narrow mechanism that enables courts to put right administrative decisions where things have gone wrong or the administrator has done something that he was not entitled to do. If anyone thinks that judicial review is a mechanism simply to have a case heard anew or considered by someone else, he or she will be disappointed. That is not the intention.

I have outlined the intention of the new clause as comprehensively as possible. I think and hope that I have demonstrated the need for it. Whatever other drawbacks the Bill may have, it is essential that the mechanisms that it sets up are subject to review. If the difference between us and the Government had been one of language or the exact words used, I should be more than happy to come and go. However, that is not the difficulty.

Mr. Peter Lloyd : I am grateful to the hon. Gentleman for giving way, and I am sorry to keep interrupting. I want to understand what he is getting at because I feel that there is not a great distance between us. I have reflected on what he said to me and to my hon. Friend the Member for Northampton, North (Mr. Marlow). He appears to believe that any discretionary act of a Minister or public official is not subject to judicial review in the normal way. My understanding is that any act is subject to judicial review, discretionary of otherwise, unless it is specifically excluded, as in clause 1(5). The new clause appears to contradict clause 1(5) on discretionary decisions. If the hon. Gentleman does not intend that the new clause should apply to discretionary decisions, I could not accept it, no matter how willing I were, because it would conflict with what he seems happy to keep in the Bill. We appear to differ on the status of a discretionary decision when there is no specific exclusion of its consideration by a court in the relevant legislation.

Mr. Darling : My new clause would not contradict clause 1(5). It is a qualification of it or addition to it. It makes it clear that nothing in the Bill precludes the possibility of courts judicially reviewing decisions. I made it clear in response to an earlier-- [Interruption.] I shall deal with that point later. It is difficult to deal with points made from a sedentary position, but I shall do my best.

Column 336

My new clause is an addition to clause 1(5). As I said, it has the same effect as that of section 44(3) of the 1981 Act. The new clause makes it clear that, no matter what is said at an earlier stage, nothing will prevent a court from considering the proceedings. The new clause is an addition to clause 1(5) ; it take nothing away from it. The mischief that it seeks to correct is that, as I read it, clause 1(5) would exclude judicial review. I know that the Minister takes a different view on that. The object of the exercise is to make it clear that courts can judicially review the proceedings. In Committee, we tried several other approaches. It is not good enough for the Minister to say that he does not understand and that he is willing to come and go. I rather suspect that he does not want the possibility of review. If I am wrong on that, I invite him to demonstrate to the House how it would be possible under the terms of the clause to carry out judicial review of any decision made under it.

My new clause is a safeguard and an addition to the Bill. It would be beneficial to the Bill as a whole because it would make it possible beyond peradventure to raise the matter later in court if there were any doubt in a preliminary court. If that is not possible, it will cause great dissatisfaction as well as great injustice. In conclusion--

Sir Alan Glyn (Windsor and Maidenhead) : Will the hon. Gentleman give way?

Mr. Darling : I really should conclude, but since the hon. Gentleman has now got to his feet, I shall give way to him.

Sir Alan Glyn : Is the hon. Gentleman referring to appeals on a point of law, on a point of fact, or both?

Mr. Darling : Judicial review is not a point of law as such. It is exercised simply to consider as a matter of fact whether the Governor took into account the matters that he should have considered or--as I have said many times now--matters which he should not have considered. It is fairly straightforward. It is a safeguard and an addition to the Bill.

In conclusion--this time I mean it, Mr. Deputy Speaker--I should have no objection if the Minister accepted the amendments tabled by the hon. Member for Christchurch (Mr. Adley), because I attempted exactly the same exercise in Committee. However, I fear that the hon. Member for Christchurch may be unsuccessful.

Mr. Adley : After the battle of Britain, Winston Churchill said, "Never has so much been owed by so many to so few."

I must say to my hon. Friend the Minister, with whom I have had a long, friendly and courteous relationship, that as a result of the brevity of his response to the debate on new clause 12, never in a parliamentary debate has so little been said so quickly to so many. It is unfortunate that, as he implied, he has been left to pick up the bits of what we might call the Foreign Office end of the debate. The Minister of State, Foreign and Commonwealth Office, the hon. Member for Warwickshire, North (Mr. Maude), was not here at the beginning of the previous debate and he is not here now. I hope that some of the points that were made will be considered by the Foreign and Commonwealth Office, if my hon. Friend the Under-Secretary of State for the Home Department does not reply to them.

Column 337

As the hon. Member for Edinburgh, Central (Mr. Darling) said in his discussion with the hon. Member for Caithness and Sutherland (Mr. Maclennan), we are in danger of creating a lawyers' paradise. As amendments Nos. 37 to 40 have been selected, if the Opposition would prefer to use them as a vehicle at the end of the debate, I shall be happy for them so to do.

It might be for the convenience of the House if I read out clause 1(5) both as currently drafted and as it would be amended. As it is drafted, it says :

"Neither the Secretary of State nor the Governor shall be required to give any reason for any decision made by him in the exercise of a discretion vested in him by or under this Act and no such decision shall be subject to appeal or liable to be questioned in any court." That is somewhat draconian.

My four amendments, Nos, 37 to 40, would amend that subsection to read as follows :

"The Secretary of State or the Governor shall be required to give reasons for any decision made by him in the exercise of a discretion vested in him by or under the Act."

That seems nothing more than natural justice. Regardless of what might be thought of the Bill, anyone reading the clause would, I am sure, regard the inclusion in the Bill of the words currently printed to be a denial of natural justice.

New clause 8, which was not selected, states :

"The Governor of Hong Kong may, at his discretion, withdraw all or any rights to passport entitlements granted under this Act, and in so doing shall state his reasons."

That was an attempt to put a negative as well as a positive power in the hands of, ultimately, the Government should we wish to reverse any decision if we find that passports have been granted to people who subsequently turn out to be drug dealers, murderers, child molesters, Triad organisers--or heavens knows what. As those people would already have their entitlement to a British passport, that is a situation in which prevention is certainly better than cure. Finally, I hope that the proposition contained in subsection 5 will not become the custom of this or any Government. Perhaps it should have been included in the Local Government Finance Act 1988 where it would have been a powerful weapon in the hands of my right hon. Friend the Secretary of State for the Environment. It was not, and we understand why. Surely if one is considering the relative importance of people's rights as against the poll tax, we should agree in Parliament that people's rights are more important. It is in the spirit of protecting individuals' rights that I move my amendments.

Mr. Maclennan : The debate has become somewhat arcane with its discussion of the alternative language that might be used to ensure that judicial review is open to those who feel aggrieved. However, the principle that underlies the range of amendments that have been grouped together, including my amendment No. 49, is extremely important.

The right hon. Member for Chingford (Mr. Tebbit), whose amendment No. 18 is in this group, is proposing to establish a right of appeal and seems to be seeking to introduce a system of review that goes far beyond that of judicial review and would nullify the operation of the scheme that the Government have in mind because it would so protract it that the speedy resolution of cases

Column 338

would become almost impossible. Any benefit that might flow from the implementation of the scheme would thereby be frittered away. That is why my right hon. and hon. Friends and I doubt whether a full appeal system is possible. I am fortified in that view by representations that we have received from Hong Kong, all of which suggested that if the scheme is to have the effect that the Government would wish, which is to restore confidence to the commercial community and to stop the haemorrhage from Hong Kong of important and significant citizens, it must be up and running quickly. Therefore, I treat the right hon. Gentleman's amendment as essentially a wrecking one.

However, the arguments about the alternative approaches, which seek to allow and to secure some form of judicial review by amending the Bill, are of a different order. As the hon. Member for Edinburgh, Central (Mr. Darling) said, they are intended to be constructive and to ensure that grievances that may perfectly understandably arise about the operation of the scheme are removed by reference to the courts for judicial review.

From the beginning of this discussion in Committee, the Minister has said that the Government's view is that judicial review is available to an aggrieved person except where clause 1(5) rules it out--that is, where the Secretary of State or the Governor are acting in the pursuance of their discretion and where the matter relates to a decision that was taken in their exercise of that discretion. I understand why the Minister wishes to exclude those discretionary decisions from judicial review.

The consequence of the alternatives would be to substitute the judgment of the court in the place of that of the Governor or the Secretary of State. I cannot think that that would make sense. If there is an element of discretion in the scheme--that is certainly the case--however detailed the points system may be, it will always be necessary to choose between people who have the same number of points. That cannot be handled satisfactorily by a court ; it must be handled by a member of the Government who is accountable to Parliament for the exercise of that discretion.

6.45 pm

Where I have fallen out previously with the Minister--and where I apprehend that I may disagree with him today--is in his belief that there is no scope for specifying a right to judicial review. What the Minister has said about that in debates and in letters has not altered my judgment that the British Nationality Act 1981 was right to secure the right to judicial review in respect of rights conferred by the Act. That is explicit in section 44(3) of the 1981 Act. The Minister has sought to distinguish between the 1981 Act and this Bill by saying that the Bill confers no rights, but I submit that it does. It confers a right upon those who are subject to schemes to have their cases properly procedurally handled. I do not believe that the Minister can deny that. Insofar as people have those rights, I believe that they should be entitled to judicial review to ensure that their rights are properly protected.

Next Section

Home Page