House of Commons Hansard Debates for 13 Jun 1990

Mr. Peter Lloyd : On the whole, the Bill does not create rights in the way that the 1981 Act did. But it certainly lays duties on the Secretary of State and the Governor which, under the Bill when it becomes and Act and the Orders in Council that will follow, could be the occasion of judicial

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review if any applicant felt that the Governor or the Secretary of State had not proceeded as they should under the requirements of this Bill.

Mr. Maclennan : The Minister is narrowing the difference between us. In what I think he will have to admit is a somewhat imprecise way, he is saying that the Bill does not confer many rights. But the very rights that it does confer will give rise to grievances which should be remediable by access to the courts.

I think that the Minister is saying that those who are aggrieved have that right and if he believes that they have that right, I cannot understand his steadfast opposition to securing that right in a clause which would run parallel to section 44(3) of the 1981 Act. That must raise questions about whether the Minister believes that clause 1(5), which puts an impediment in the way of judicial review of the discretionary power, could be invoked to stop judicial review in other cases. That matter is sufficiently in doubt to make it important to have the provisions contained in amendment No. 49. I do not go along with the hon. Member for Edinburgh, Central. His amendment, which is not couched in the language of the 1981 Act, goes too far in overturning the effect of excluding discretions from judicial review. I have sympathy with the amendment, but it goes further than I consider to be appropriate. I think that it would transfer responsibility for taking discretionary decisions from the Governor and the Secretary of State to the courts. That cannot be an acceptable objective.

Mr. Marlow : As the hon. Gentleman knows, the Bill seeks to confer passports on citizens of Hong Kong. Those who have had that benefit will have the right for their children to be accorded passports. There may be some controversy between those issuing passports and parents over which children are entitled to passports. Is the hon. Gentleman suggesting that the decision to exclude or include a particular child should be made by the courts?

Mr. Maclennan : I am suggesting that in the exercise of the judgments made by the Governor and the Secretary of State and the procedural rule that will be followed in making assessments, issues such as the one raised by the hon. Gentleman should be open to review. It will be a question of whether the procedures have been properly followed. Did the Secretary of State address himself to the proper questions? Did the Governor do so or did he fail to carry out his duty?

It has been said by some hon. Members, including the hon. Member for Northampton, North (Mr. Marlow), that it is a constitutional monstrosity to suggest that there is an obligation upon the Secretary of State to register those whom the Governor recommends. It seems that a duty is being imposed upon him. It seems also that the procedure confers a right upon those whose names are put forward to be registered save in the circumstance that the Secretary of State takes the view that they are not of proper character. That is the effect of clause 5.

If there is that right to be registered, we are talking of a major right, not a minor procedural matter. It would seem that the Bill is conferring a major right. If that right is subject to judicial review, that meets all the legitimate demands that anyone could have for reconsideration of a mistake, if mistake there has been, without opening up the

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full panoply of an appeal system with all the possibilities of delay that that could involve and the rendering nugatory of the effectiveness of the scheme.

Mr. Marlow : The hon. Gentleman and I have crossed swords on this issue in a previous debate. Clause 5(2) states :

"A person shall not be recommended for registration as a British citizen by the Governor of Hong Kong or by the Secretary of State if the Governor or, as the case may be, the Secretary of State has reason to believe that he is not of good character."

Where does that dividing line come down? Who should decide, the Governor or the Secretary of State? How does that affect the hon. Gentleman's view of judicial review?

Mr. Maclennan : With respect, I do not think that the hon. Gentleman's question is germane to the argument about judicial review. Accordingly, I do not propose to take up the matter. I may have conveyed to the Minister what it is that I am seeking to achieve. I hope that I have placed upon him the onus of explaining why the Government are reluctant-- they have suggested so far that they are opposed to this--to repeat the language of the 1981 Act, which provides a safeguard for people who are aggrieved because there has been some intromission, oversight, error or misdirection by those responsible for the operation of the scheme.

Mr. Tebbit : I wish to speak to amendment No. 18, about which the hon. Member for Caithness and Sutherland (Mr. Maclennan), was so scathing. It is extraordinary that a member of the party which was once called the Liberal party should oppose in principle giving people the right of appeal on the basis that that would be a bureaucratic impediment to the swift progress of granting British nationality.

I find it extraordinary that the hon. Gentleman is so bigoted and partisan as to believe that merely because an amendment gives a right of appeal it must be a wrecking amendment. There could be no better illustration of the manner in which the hon. Gentleman's mind is closed like a clam to any idea that does not originate from Opposition Members. That means that he has a remarkably closed mind to any ideas because so few originate from those who sit around him. There is increasing lonelines on the Bench on which he sits. The hon. Member for Caithness and Sutherland ruminated on why the Government were so reluctant to accept the amendments which he has proposed, those which I proposed and not dissimilar amendments which were tabled and introduced in Committee. I can tell him why the Government are reluctant to do so. The answer is easy to understand. My right hon. and learned Friend the Home Secretary does not like this business at all. He wishes that it had never got anywhere near his desk. He has a marked revulsion for the whole darned business. He knows that it is a can of worms and he does not want it to get anywhere near him or his office. He wants to keep it all offshore. This is one of the first instances where the granting of nationality has been made an offshore operation. The Home Secretary wants to keep the business in Hong Kong. He is pretty darned sure that some nasty and unfortunate things will happen, and the last thing that he wants is to find that he is responsible for them. It is against that background that we are being asked how the Home Secretary will possibly know better than

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the Governor. How, it is said, could the Home Secretary decide anything here except on evidence which had come to him from Hong Kong? It is argued that that would be the same evidence as that which had been presented to the Governor, and that the Home Secretary would merely be churning out the same old stuff. That would be fine if the Governor were responsible to the House, but there is a pretty thick layer between the House, the Governor and those who will be operating the scheme.

I think that Hong Kong is a marvellous place. It is a terrific, successful place, but I doubt whether anyone would be able to maintain that it is the one place in the world where the ethics of business stand out as being more reputable than those anywhere else in the world.

Mr. Allan Rogers (Rhondda) : Do not tell us about that.

Mr. Tebbit : It seems that the hon. Gentleman wants to start a debate about other issues. Perhaps they include the way in which Lord Beswick piloted a nationalisation Bill through Parliament and then got a job. I shall not be tempted down that road.

Mr. Rhodri Morgan (Cardiff, West) : Will the right hon. Gentleman give way?

Mr. Tebbit : I would greatly enjoy such a debate on another day, because there is much ammunition to be used, and I would have great delight in using some of it. But we are not discussing those issues and I do not want unnaturally to extend the debate. We should focus clearly and firmly on the matters that are under discussion. The principal issue in this debate is whether someone who is granted the right to apply for registration as a British citizen under the Bill should have a right to appeal to someone who is directly responsible to this Parliament, which has accorded the right. That is the argument. We are not arguing that the Home Secretary should deal with all the applications himself. Clearly, most aggrieved people would accept that they had not scored on the points standard of the Bill, according to what we assume will be the way in which it is operated.

I tabled an amendment--unfortunately, it was not accepted--that would have clarified the criteria by taking the Government's own words from their explanatory memorandum and including them in the Bill. I cannot see why the Government do not want to incorporate their views in their legislation. Obviously they do not really approve of them.

Mr. Peter Lloyd : Perhaps my right hon. Friend should consult my hon. Friend the Member for Northampton, North (Mr. Marlow), who explained-- when my right hon. Friend was out of the Chamber--that we needed an annual report from the Governor on the facts and progress of the scheme--in case we wanted to change it. Only through delegated legislation in Orders in Council could we do that.

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Mr. Tebbit : My hon. Friend is completely wrong. He is saying that it would be more convenient legislatively to change the scheme by means of Orders in Council than to do so through primary legislation. That is not an absolute problem ; it just takes more time.

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As I know very well, Governments do not like to arrange such debates in prime parliamentary time. They would prefer the whole issue to be swept under the carpet in future, so that we did not have to debate it again. Apart from anything else, it is an extremely divisive issue in the Conservative party. Conservative Back Benchers do not support the Bill ; nor, in their heart of hearts do Front Benchers, although they may do so in the Lobbies. It certainly does not have the support of those who voted for us at the general election on the clear understanding that no such legislation would be presented.

I am not too bothered by my hon. Friend's objections. If the Government ase to break electoral commitments, they should do so in public, so that the electors know that undertakings have been breached. An even more puzzling question is whether my hon. Friend has any better reason than was given in Committee for not giving the right of appeal. I accept that the Bill should contain the extraordinary little clause that effectively seeks to exclude the courts from any review of their operations : some Conservative Members do not want the courts to be involved, as it would raise too many issues about how British citizenship and passports are handed out. Surely, however, my hon. Friends will not say that in no circumstances should a citizen in Hong Kong have any right to come to a Minister directly responsible to Parliament with an appeal against what has been done.

Mr. Marlow : As my right hon. Friend has pointed out, one of the great departures of the Bill is the offshore award of British citizenship. The person awarding that citizenship will effectively be the Governor of Hong Kong. I understand that my right hon. Friend's amendment hopes to give that final power on appeal back to the people who have been democratically elected to represent the people of this country--hon. Members.

Mr. Tebbit : My hon. Friend is absolutely right. It is not the Governor's legislation, but the Secretary of State's legislation : it is the legislation of the House of Commons. At the end of the day, it is to the House, through the Secretary of State, that the appeal should be made. How can it be held that the Secretary of State, having put into commission the granting of citizenship--surely one of the most important acts to be conducted by a Government--could then wash his hands of it, and say that he does not want to know and that he will intervene only if citizenship is granted to someone who he believes is not of a fit or proper character?

If someone applies to be registered for British citizenship and is refused, and someone else's application is preferred--perhaps in breach of the rules --will the Secretary of State still say that he does not want to know? Will he say that it is too difficult, and that he does not want to accept responsibility for it?

Mr. Peter Lloyd rose --

Mr. Tebbit : Perhaps the Minister is going to say that he does want the responsibility.

Mr. Lloyd : If a selection were made in breach of the rules, it would be a matter for judicial review, and there would be access to the courts, as I pointed out to the hon. Member for Edinburgh, Central (Mr. Darling). I do not think that my right hon. Friend was in the Chamber at the

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time. If he has read the Committee proceedings--as he said he has--he will know that that was made clear several times.

Mr. Tebbit : Within the rules there is enormous discretion. If the Minister reads the rules of the memorandum that I sought to include in the Bill, he will see that not everything is cut and dried. Who will decide whether one business man is more successful and entrepreneurial than another? Is there a set of rules, or will a subjective judgment be made? Will a business man who has made £50 million starting from £500,000 be good enough to get in, whereas someone who has made only £25 million starting from £1 million will not be? Obviously, the decision will be discretionary, judgmental and subjective.

If the decision is to be based on someone's judgment, should it be that of a Minister of the Crown or that of a civil servant in Hong Kong? Is my hon. Friend saying that that subjective judgment should be exercised by someone who is not directly responsible to the House?

Mr. Peter Lloyd : The judgment will be based on the value of the individual to Hong Kong. In those circumstances, who better to make that judgment than the Governor of Hong Kong, acting within the rules laid down by the House?

My right hon. Friend has slid off the point that I answered. He referred to a breach of the rules laid down by the House ; I said that, in those circumstances, a judicial review would be available, and I hope that he will accept that.

Mr. Tebbit : I will accept that, if it can be established that a decision is in breach of the rules. A judicial review is not the cheapest or the easiest way to bring proceedings. Why not offer a cheaper and easier form of appeal?

My hon. Friend the Minister also conceded my point that in many cases passports will be granted on no more than the view of a group of people as to who are the most valuable citizens in Hong Kong. Let us imagine what would be said in the House if we proposed to operate such a system here, judging people on the basis of their value to the economy. An official who was not even a Minister could decide to front an invaluable privilege. There would be no right of appeal : a person could not go to judicial review and say that the Governor had made a wrong assessment of his value to the economy of Hong Kong. He will have no right of appeal. The Secretary of State and his Under-Secretary of State say, "Hard luck. Much better that that sort of mess is kept out of our office and is kept over there in Hong Kong. We give up responsibility and we deny any responsibility to the House of Commons."

Mr. Wells : Has my right hon. Friend read the key entrepreneur section which says :

"The Governor would invite those whom he considered might be qualified under this scheme to submit an application".

It is entirely in the Governor's right to decide that. If an aggrieved person believed that the Goverment had not exercised that judgment correctly, there would be no question of judicial review. A small cabal-- the elite who rule Hong Kong--would decide who should have British citizenship ; citizenship which belongs to Britain through the House.

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Mr. Tebbit : As my hon. Friend says, that is how it would operate. We all know that, wherever there is a ruling commercial elite who like to have things their own way, there are outsiders. If one went to the CBI and asked who were the deserving entrepreneurs in the United Kingdom, it would probably omit from its list a great many people who would feel that they had been wrongfully omitted. The CBI would upset a lot of people. Any establishment will do that. We are well aware of the way in which the ranks close in establishments if somebody should be so unwise as to criticise it- - [Interruption.] I hasten to say that I speak from no experience of such things, but I have heard that it happens now and again. I have even heard that it happens to hon. Members who have committed such a terrible offence as working for Mr. Rupert Murdoch. They get slung off the Opposition Front Bench for doing so. That is the sort of way in which people can upset the establishment.

Mr. Joseph Ashton (Bassettlaw) : The right hon. Gentleman will never be Sir Norman now.

Mr. Tebbit : The hon. Gentleman should be careful. He may never reach the Front Bench the way he is carrying on.

Mr. Ashton : I have been on it and come off it.

Mr. Tebbit : Indeed.

The serious point that I am making is, as my hon. Friend the Member for Hertford and Stortford (Mr. Wells) said, that to get on to that key entrepreneurs list a person's face must fit with the establishment of Hong Kong, not with the Secretary of State. [Interruption.] One of my more vulgar Back-Bench colleagues whom I shall not name says, "or his cheque book". Perish the thought that such a thing could happen in a place like Hong Kong. The idea that people might be able to buy a passport in Hong Kong is outrageous. I am amazed that one of my colleagues could suggest it. I would not have been surprised if such a suggestion had come from the vulgar mob on the Opposition Benches, but for one of my hon. Friends to suggest it--that might be getting somewhere near the truth of the matter. It just might be that there are people in Hong Kong, perfectly successful and honest men, who would deserve the award of citizenship, whose faces do not fit. What will they do?

Mr. Peter Lloyd rose --

Mr. Tebbit : My hon. Friend is eager to tell me.

Mr. Lloyd : What the key entrepreneurs will have to do is to meet the criteria that will be laid down by the House in the Order in Council.

Mr. Tebbit : I have been in the business of drawing up legislation for long enough not to fall for that guff.

Sir Peter Blaker : I am sure that my right hon. Friend would not want to mislead the House. I do not know whether he has recently looked at the section on the key entrepreneur. He is giving the impression that only those key entrepreneurs who are invited by the Governor to make an application will be eligible, but that is plainly not true. The document says :

"It would be open to others who wished to be considered in this category to indicate their interest on an application

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form Other potential recipients who did not take that initiative might be identified from information set out on their forms when they applied".

May we have the whole picture, not just part of it?

Mr. Tebbit : I am sure that that is right. If the National Front were to advertise for an administrative officer, it would probably put at the bottom of the page that it was an equal opportunities employer. We can believe that if we wish. It does not matter whether a person is invited to apply by the Governor or not. His face has to fit. If it does not fit well enough to receive an invitation, I doubt whether it would fit well enough to win on an application without an invitation.

Even if we were to believe that on 99 occasions out of 100 all would go well, we must concede that there is a possibility--not even a probability-- that there would be a miscarriage of justice. We know that there would be no appeal against that and no way in which the consequences of how the legislation is drawn up could arrive on the desk of my right hon. and learned Friend the Home Secretary. I do not blame my right hon. Friend for taking that view. If I were the Home Secretary with this dog's dinner of a Bill, I would be taking the same view. I would want to keep it offshore if I could.

7.15 pm

Mr. Marlow : In a previous intervention, my hon. Friend the Minister said that the measure is about providing citizenship for people in Hong Kong so that they might be constrained to stay in Hong Kong. But I put it to my right hon. Friend that what we are doing is providing people with British citizenship. In that case, is it right that the Secretary of State should have no influence on whether there should be an appeal?

Mr. Tebbit : My hon. Friend makes the essential point. I cannot imagine why the official Opposition are so willing to let the Government get away with it. However, there is sometimes a conspiracy between the Front Benches. It is not unknown. Even when the Opposition Front Bench team opposes legislation, it may not oppose it enough to stop it getting through. It may oppose it only for show, so that it can say that it opposed it, but at the same time let it through.

I am amazed that the Opposition, including the so-called Liberals, bitterly oppose, in the way that they seem to, granting a right of appeal to the Home Secretary on the issue of British citizenship. It is amazing that they are content to leave that in the hands of the Governor of Hong Kong and his officials.

Mr. Maclennan : The right hon. Gentleman's concern for the injustices of the Bill would carry much greater weight if he had a scheme to offer hope to those who will be threatened in 1997 by an oppressive Government in Peking, the responsibility for whom, if his policies were carried out, he would wash his hands of. The British Government would simply turn their back. He has shown no willingness to support the Liberal Democrats' policy that those who have been granted British dependent territories citizen passports should be entitled as of right to come to Britain, in which case there would be none of these review procedures.

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Mr. Tebbit : I have made no secret of the fact that I oppose the Bill on two grounds. First, it is a breach of the Government's commitment not to allow further large-scale immigration into Britain. The first obligation of a Member of Parliament is to his constituents here. That is the prime obligation.

Mr. Rogers (Rhondda) : Why does the right hon. Gentleman take other jobs, then?

Mr. Tebbit : For exactly the same reason as the deputy leader of the Labour party takes other jobs. If hon. Members want to come to my constituency and tell my constituents that I have not been looking after their interests, they will have to explain why my majority has risen from 4,000 to 18,000 in the past 10 years. That may be the view of ignorant people, but it is not the view of the people whom I look after.

Let us return to the point made by the hon. Member for Caithness and Sutherland. The second reason why I oppose the Bill is also the reason why my hon. Friend the Member for Christchurch opposes it : it will not benefit the people of Hong Kong. It will not make matters better there but will make them worse. The hon. Member for Caithness and Sutherland may take a different view from me, but he should not imply that having a different view from him is a matter of dishonour, because experience has shown that it is not.

Has my hon. Friend the Under-Secretary got any better explanation than the one he put forward in Committee, as to why the House should allow the Home Secretary--I am not speaking of my right hon. and learned Friend personally but of his office--to shuffle off the obligation and thus ensure that the responsibility will never come back to land on his desk, once the House has given its consent to the Bill?

Mr. Peter Lloyd : I am afraid that I shall have to spend a little more time replying to this debate than I did to the last one as it is important and there are genuine misunderstandings and worries on the issue.

In Committee we spent a good deal of time discussing how decisions taken under the Bill might be reviewed. Clearly that was a matter of genuine concern, and I appreciate how strongly the hon. Members for Edinburgh, Central (Mr. Darling) and for Caithness and Sutherland (Mr. Maclennan) felt about it, and I also find, to my interest, that my right hon. Friend the Member for Chingford (Mr. Tebbit) is numbered among those who are concerned.

In Committee, and in letters which I sent afterwards, I sought to explain the background to clause 1(5) and the extent of its effect. Therefore, I wrote to the hon. Member for Newham, North-East (Mr. Leighton), as the hon. Member for Edinburgh, Central remarked, setting out the sort of decision which the Government thought that the courts would be likely to regard as reviewable and those which seemed likely not be reviewable as a result of clause 1(5). I must point out again to the hon. Member for Edinburgh, Central that new clause 2 would contradict clause 1(5) and could not sit alongside it in the same Bill.

As I made clear in Committee, ultimately it will be not for the Governor or for the Home Secretary but for the courts to decide what is reviewable, having regard to the provisions of the legislation. I wrote to the hon. Member

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for Caithness and Sutherland about the case of a person seeking registration as a spouse under schedule 2 who was rejected on grounds of ineligibility.

Let me emphasise once again what I said in Committee. The exemptions in clause 1(5) from having to give reasons and from appeal and judicial review relate only to discretionary decisions. It is in the nature of such decisions that they often involve the exercise of judgment about matters which might be finely balanced, and where there might be no clear right or wrong answer. If I understood correctly the hon. Members for Edinburgh, Central and for Caithness and Sutherland, they had no argument with me or with the Government on that score ; their argument is about how we present the matter in the Bill.

Mr. Darling : I am not sure that that accurately represents our view. I said that I thought that there were circumstances in which ministerial discretion could be challenged by involving judicial review under the present law. I make no bones about it : my new clause would qualify clause 1(5) so that, if it were appropriate to do so, and if an aggrieved person had grounds to do so, he or she could challenge such discretion. on occasion the Minister might purport to use discretion but consider matters that he had no business to consider for any reason. I am glad that the Minister has said clearly that clause 1(5) would make such a discretionary decision unchallengeable, no matter now manifestly unjust it was.

Mr. Lloyd : The court would decide whether it was a matter of discretion. I think that in the examples that the hon. Gentleman was trying to think of, and was alluding to earlier, it would be a question of the circumstances in which discretion was applied rather than a question of discretion. The courts will have to determine whether that is a matter for them to review or not. There is nothing in clause 1(5) which provides for discretionary decisions because the intention and effect of the clause are similar to a provision which has formed part of our nationality law for the past 40 years. It is included in black and white, in section 26 of the British Nationality Act 1948, and more recently in section 44(2) of the British Nationality Act 1981. Therefore, the amendments would depart from a principle that has been a long-standing feature of nationality law under successive Governments.

The need for exemption is particularly pressing in this Bill because of the competitive nature of the scheme, which has a ceiling of 50,000 places, and because of the expected high proportion of unsuccessful applications.

If a person felt that a discretionary decision had deprived him of selection, often the decision could be meaningfully reviewed only if the courts also considered the relative claims of other people with whom the applicant had been competing. That would not be practicable. Even if it was, it would result merely in the substitution of one opinion for another. That must be the case when it is not simply a question of getting enough points to reach a pass mark which entitles people to British citizenship. It is a question of getting more points than other people. By securing a place, a person will deny that place to someone else. The hon. Member for Caithness and Sutherland recognised that that was so.

Mr. Adley : I heard what my hon. Friend said about those sections of existing immigration law which contain phrases or clauses similar to clause 1(5). Does he accept that in those instances British Ministers are answerable to

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Members of Parliament? What similar fallback position does he envisage for individuals in Hong Kong? Are he and his ministerial colleagues at the Home Office prepared to countenance hon. Members taking up cases brought to their attention with Ministers here in the same way that we mention cases involving our constituents?

Mr. Lloyd : The Home Secretary is not answerable for matters of discretion under nationality law. He makes his decision on the information available, and he is required to give no reasons. Obviously he would listen and receive letters dealing with the cases of people who might have applied for British citizenship, but there is no obligation on him to give reasons for his decision. That is absolutely clear under the present legislation. The Bill requires that the final granting of British citizenship belongs to my right hon. Friend the Home Secretary, and he would have to satisfy himself of the suitability of the applicant to be a British citizen. For that reason, there will be Home Office officials in Hong Kong to consider the recommendations made by the Governor to ensure that they are suitable people on whose behalf my right hon. and learned Friend the Home Secretary should exercise the discretion which remains with him.

Mr. Marlow : As has been said from a sedentary position, my right hon. and learned Friend the Home Secretary would have a negative power. If the Governor were to say to him, "Thou shalt have a certain person as a British citizen," and my right hon. and learned Friend had information that that person would be unsuitable for the United Kingdom, then, as we have discussed before, he would be able to say that the person could not come into the country. But let us suppose that someone who was eminently suitable for citizenship but who for the reasons given by my right hon. Friend the Member for Chingford--cliques and cabals in Hong Kong--was not allocated one of the 50,000 British citizenships contacted an hon. Member, who then got in touch with the Home Secretary. In those circumstances, what would my right hon. and learned Friend the Home Secretary be able to do about it, given the way that the Bill is drafted?

Mr. Lloyd : There are many people in Hong Kong who are suitable in that sense to be British citizens. However, the selection scheme that the House will eventually provide will be the means by which the Governor will choose those people who, because of their value to Hong Kong, as well as being eminently suitable to be British citizens, will be included among the 50,000.

Mr. Campbell-Savours : During my visit to Hong Kong, I heard two different views about the position if individuals wanted to appeal. I was told by a civil servant that every individual had the right to petition the Governor personally. When I asked the Governor about that, he was less inclined to accept that that was an appeal route. Do people have the right to petition the Governor under the existing rules? If they have that right, should the Governor not be required to provide reasons for his refusal?

7.30 pm

Mr. Lloyd : I do not know the details. I believe that there is a tradition whereby people can approach the Governor, but it is no substitute for the kind of appeal system that the hon. Gentleman may have in mind. The

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objective process, as provided for in the Bill, will be laid down in Orders in Council. The Governor will have much less discretion than is assumed by my right hon. Friend the Member for Chingford.

Mr. Madden : I accept that the Secretary of State will not be obliged to give reasons for his refusal to grant British citizenship under the British Nationality Act 1981, but the custom and practice over some years has been that when hon. Members, or those in another place, made representations to the Secretary of State and asked for explanations as to why an application had been refused the Secretary of State offered an explanation that enabled hon. Members to make further inquiries. Will that practice not continue under the new legislation?

Mr. Lloyd : On some occasions my right hon. and learned Friend has done that ; on other occasions he has not. He has the discretion to decide whether it would be right for him to give information. My right hon. and learned Friend always tries to be as helpful as he possibly can. When reaching his conclusion, he would seek to take into account any representations that were made to him. We are talking, however, about giving reasons and explanations. Home Secretaries in successive Governments have frequently not done so ; their judgment in particular cases was that it would not be helpful. Arguments similar to those that I have advanced relating to appeals apply to the proposal made by my hon. Friend the Member for Christchurch (Mr. Adley) : that the Governor or the Secretary of State should be required to give the reasons for a discretionary decision. Given the large number of decisions that will need to be taken about the detailed criteria for the scheme--for example, about the weight, in terms of points, to be given to different qualifications--a requirement to give reasons in all cases would be extraordinarily difficult to work and would not be very meaningful unless one knew what the reasons were in every other case. This is a competitive exercise. I have stressed that the exemption in clause 1 will apply only to discretionary decisions. Anyone who reads the clause will see that it applies only to discretionary decisions. All other aspects of the selection and registration process will fall outside the scope of the exemption and, therefore, will be within the purview of the courts.

The inclusion of a provision in the Bill stating that explicitly is unnecessary. I know, however, that the hon. Member for Caithness and Sutherland feels passionately about the matter. As I promised in Committee, I have thought long and hard about including words to reassure him. I do not believe that it is good practice to overload legislation with redundant clauses, but in this case I should have been willing to do so if it would have had no other effect than to make the Bill slightly longer. I am afraid, however, that I had to conclude not merely that the addition would be unnecessary but that it would be undesirable as it could raise doubts about the powers of the courts in relation to other statutes.

There is no better illustration of that than the hon. Gentleman's deep concern and the anxieties that have been expressed both this evening and in Committee, which spring from the fact that the words of the hon. Gentleman's amendment, which he wishes to be inserted in

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the Bill, already appear in the 1981 Act. The inclusion of section 44(3) in the 1981 Act--of doubtful necessity even then--has led some right hon. and hon. Members to assume that the courts cannot review actions taken under the statute unless the statute specifically allows them to do so. The House should not perpetuate that assumption, as it would if it were to accept the amendment. Should we continue to do that from time to time in new legislation--to reassure a particularly forceful hon. Member when he expresses a fiercely held worry-- we would begin to raise doubts as to the extent of the courts' competence to review cases without specific legislative authority.

Mr. Maclennan : I am grateful to the Minister for the detailed way in which he is seeking to answer my point. Does he believe, however, that the presence of section 44(3) in the British Nationality Act 1981 leads to doubt about whether judicial review exists? It was included in the Act for the avoidance of doubt. It should be included in this Bill for the same reason.

Mr. Lloyd : To be fair, section 44(3) of the 1981 Act was drafted a decade ago, when this area of the law was less well developed than it is now. The courts are vigorous in asserting their right to review decisions taken by public bodies under powers conferred by Act of Parliament. To include similar words in this Bill would not help. They would add to the damage that the appearance of those words in the 1981 Act has retrospectively caused. I do not want that area of doubt to continue.

The fact that the hon. Gentleman is doubtful and believes that without those words there can be no judicial review leads me to point out to him that there are myriad other Acts on the statute book of which the same could be said ; they are no different. There can be a judicial review under these Acts just as, under this Bill, there is the possibility of judicial review, without the words that the hon. Gentleman wants to include. If from time to time we were to include those words in various Acts, it would be possible to argue that if another Act did not contain them it was not intended by Parliament that there should be judicial review.

The fact that judicial review is available is demonstrated by the Immigration Act 1971--10 years before the British Nationality Act 1981-- under which hundreds of challenges by way of judicial review are made every year, even though the Act contains no express provision that confers jurisdiction on the courts to consider such challenges. In the case of the Bill, that includes all aspects of its operation, except those discretionary decisions which clause 1(5) explicitly exempts.

Mr. Tebbit : Will my hon. Friend make it clear whether or not there will be the possibility of judicial review arising out of a decision by the Governor within the key entrepreneurs section, were someone to believe that, although he was a key entrepreneur in the top 500, he had not been selected?

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