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Mr. Lloyd : That will be a matter for the courts to determine. I believe that that possibility would not arise, unless the individual could show that the criteria laid down by the House had not been followed. The Governor is required to abide by the rules that we lay down, both in this Bill and, more particularly in the case of the selection scheme, in Orders in Council.
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Mr. Tebbit : Will my hon. Friend confirm that the intention of the legislation is that there should not be judicial review of the Governor's decision as to whether or not a man is one of the top 500 entrepreneurs in Hong Kong? Is that right?Mr. Lloyd : Where there are elements of discretion that belong either to the Governor or to the Secretary of State, the intention is that that should not be a matter of judicial review. However, both the Governor and the Home Secretary are under a duty to abide by the law that is laid down in the Bill, if it becomes an Act, and by the rules and regulations that will appear in Orders in Council. It would be for the courts to decide whether the House had given an element of discretion to the Governor, or whether he had not followed the procedures laid down by the House.
Mr. Tebbit : I am grateful to my hon. Friend, because he is being very helpful. He is describing how it is not the intention of the Government to allow judicial review. The Bill is constructed in a way that is deliberately designed to limit or exclude the courts. My hon. Friend says that the only occasion on which judicial review could arise is where it could be shown that the Governor had not complied with the criteria set down in the legislation.
We cannot yet know what the legislation will look like, but if right hon. and hon. Members will refer to page 2079 of the amendment paper they will see what the Government's explanatory memorandum says about the criteria. I suggest to my hon. Friend the Minister that it would be unsurprising if they were the criteria published by a masonic lodge for membership. The idea that a court would take the view that the Governor had exercised his discretion in a way no reasonable man could have done--and that is the test in a judicial review--in deciding between applicant No. 500 and applicant No. 501 is totally absurd.
Mr. Lloyd : We shall come in due time to the Orders in Council, which will lay down the criteria. My right hon. Friend should not assume in too much detail what those criteria will be. We have done our best in the explanatory paper to show what our thinking is, but the usefulness of the Report and Committee stages is that they enable points to be made that we can bear in mind when preparing the Orders in Council that are to be brought before the House.
My right hon. Friend is saying that, where it is a matter of discretion under the law and under the Orders in Council, it cannot be reviewed by the courts, but where it is a matter of following requirements laid down by the Bill, or by the Orders in Council, it will be open to review.
Mr. Tebbit : My hon. Friend the Minister makes it plain that there will be no possibility, in his judgment, of appeal. As to the Orders in Council, why did not my hon. Friend follow the example that I set some years ago, of publishing in draft form the statutory instrument, so that the House could consider it while debating the Bill on Report? There is no reason why that could not have been done in this case. It would have made for a more informed debate, and we would not have the muddle over how the scheme would operate when it came to the point. My hon. Friend the Minister asks the House to pass the Bill before it can see what kind of statutory instrument he brings forward.
Mr. Lloyd : I am not asking the House to pass a statutory instrument that has yet to be brought forward.
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I have covered most of the points made in debate except those of my right hon. Friend the Member for Chingford and of my hon. Friend the Member for Christchurch.Mr. Marlow : My hon. Friend the Minister says that the guts of the thing will come forward in the statutory instrument, and to a certain extent we must take that on trust. My understanding of a statutory instrument is that one either accepts the whole of it or gets rid of the whole of it, and that it is not amendable. Is my hon. Friend proposing a new form of statutory instrument?
Mr. Lloyd : I am not. I am saying that the Report stage gives plenty of opportunity for my hon. Friend to say what he would and would not like to see in the Bill.
I return to amendment No. 18, in the name of my right hon. Friend the Member for Chingford and others of my hon. Friends. My right hon. Friend has made half my remarks for me. He is right that a major reason why there should not be an appeal to the Home Secretary is that the Governor will have the information and will be running the scheme according to the means laid down by the House. Therefore, the information available to my right hon. and learned Friend the Home Secretary will be the same as that available to the Governor--it would have come from Hong Kong.
As the criteria are designed to determine those who are most valuable to Hong Kong, my right hon. Friend is right in thinking that the assessment will be more effectively and efficiently made by the Governor. However, he retains to himself the final determination of whether someone should be registered as a British citizen. He will make up his mind on the person's suitability to be a British citizen, though the recommended person will come forward on the Governor's evaluation of his or her value to Hong Kong, the Governor having observed the process that we have set down for him.
No doubt a great many people will apply, and it would be impracticable for my right hon. and learned Friend to scrutinise not just the appeals but the merits of all who had been successful in gaining a recommendation. As there is a top limit on the numbers, if my right hon. and learned Friend allows some appeals, others would have to drop out because of the upper limit set by the House. That would create enormous difficulties, as well as a huge backlog of cases. None of them could be decided until my right hon. and learned Friend had, in effect, reviewed them all. As the need in Hong Kong is for the reassurance that the Bill can give and for it to take effect quickly, it would be wholly counter-productive for the right of appeal to be enacted in the Bill. For that reason, my right hon. Friend's amendment must be rejected.
7.45 pm
Mr. Tebbit : First, may I seek your guidance, Mr. Deputy Speaker--
Mr. Deputy Speaker (Mr. Harold Walker) : Order. The right hon. Gentleman cannot speak a second time without the leave of the House. Does the right hon. Gentleman have the leave of the House to do so? [ Hon. Members :-- "No."] The leave of the House is denied.
Mr. Tebbit : On a point of order, Mr. Deputy Speaker. I was not seeking to address the House again on the issues but endeavouring to establish whether the House may vote
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on amendment No. 18. I know that it would come not at this moment, but at the appropriate point in the consideration of the Bill.Mr. Deputy Speaker : I shall have to give consideration to what happens to intermediate amendments, as that may have an influence on the Chair's judgment about the propriety of such a Division. I will consider the matter at the appropriate time, when I shall bear in mind the right hon. Gentleman's remarks.
Mr. Marlow : Two issues still concern me at this stage. The first is the involvement of the courts, as suggested by the Opposition amendment. The second, and more important, is the aspect raised by my right hon. Friend the Member for Chingford (Mr. Tebbit) in his amendment, concerning the involvement by the House at a later stage. I am grateful to the hon. Member for Edinburgh, Central (Mr. Darling) for clarifying his amendment, which would if anything extend the circumstances in which there could be judicial review and court involvement. I am deeply concerned about that. In respect of various measures passed by the House, notably the community charge, we recently discovered that many aggrieved citizens flocked to the courts and sought to make that legislation more difficult to implement.
If the involvement of the courts is to increase, it is surely possible that many people in Hong Kong will be able to claim not that discretion has been applied unreasonably against them but that in some way, even through the distribution of a notice by post, the matter was incorrectly administered. They might choose to take their argument before the courts to be decided. If the hon. Member for Edinburgh, Central were to persist with his new clause and gain a majority for it, there is a real risk that the intentions behind the legislation could be rendered, to a great extent, unworkable. As for the amendment tabled by my right hon. Friend the Member for Chingford, I offer the following scenario. Let us suppose that, in the exercise of his powers, the Governor of Hong Kong were to award British citizenship to a certain gentleman. If my right hon. and learned Friend the Home Secretary, in the exercise of his powers, said that he had no objection and that this was a suitable person to be given a British passport and to come to the United Kingdom ; and if the gentleman then came to reside here, perhaps in Chingford or in my constituency, at an early date--despite the intentions of the Bill, which are that he should stay in Hong Kong until 1997 ; if, as I say, this gentleman took immediate advantage of his citizenship, he might at some subsequent stage receive a communication from a friend or relative still living in Hong Kong who himself had sought to acquire the valuable privilege of British citizenship. The Governor of Hong Kong, exercising his discretion within the rules, or people acting on behalf of the Governor, might, in the view of this friend or relative, have unreasonably denied him the opportunity to which he felt he was entitled to be granted a British passport.
My consituent might then come to me and say, "Mr. Marlow, there has been a gross miscarriage of justice. The Governor has looked at my friend or relative's application and, because of various circumstances in Hong Kong, has improperly exercised his discretion and refused to grant
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my friend or relative the passport which, knowing British law, knowing you and knowing the fabric of British society, I believe he should have been granted. What, Mr. Marlow, are you going to do on behalf of my friend or relative?"I could say, "He is in Hong Kong ; it is nothing to do with me." He might say, "Mr. Marlow, it is something to do with you because you are a Member of Parliament and Parliament is responsible for what is happening in Hong Kong." What should I do? Should I write a letter to the Governor of Hong Kong telling him that a constituent of mine has brought me a point to which I have no answer? What status do I have with the Governor of Hong Kong? None at all. If I write to him, what will he say? What will he do? What interest will he have in communicating with me?
No doubt I would receive a polite, decent reply, full of a great deal of explanation, from the Governor, but that is not my role as a Member of Parliament. I would much rather write to my right hon. and learned Friend the Home Secretary to learn from him his views on the problem. That is the way parliamentary democracy works ; that is the role of a Member of Parliament. So, before we vote on the new clause, I should like to ask my hon. Friend the Minister for his views on this conundrum.
Question put, That the clause be read a Second time :
The House divided : Ayes 176, Noes 297.
Division No. 230] [7.53 pm
AYES
Adams, Allen (Paisley N)
Adley, Robert
Allen, Graham
Armstrong, Hilary
Ashley, Rt Hon Jack
Ashton, Joe
Banks, Tony (Newham NW)
Barnes, Harry (Derbyshire NE)
Beckett, Margaret
Bell, Stuart
Benn, Rt Hon Tony
Bennett, A. F. (D'nt'n & R'dish)
Bermingham, Gerald
Bidwell, Sydney
Boateng, Paul
Boyes, Roland
Bradley, Keith
Brown, Gordon (D'mline E)
Brown, Nicholas (Newcastle E)
Buckley, George J.
Caborn, Richard
Callaghan, Jim
Campbell, Ron (Blyth Valley)
Campbell-Savours, D. N.
Canavan, Dennis
Carr, Michael
Clark, Dr David (S Shields)
Clay, Bob
Clelland, David
Clwyd, Mrs Ann
Cohen, Harry
Cook, Robin (Livingston)
Corbett, Robin
Corbyn, Jeremy
Cox, Tom
Crowther, Stan
Cryer, Bob
Cummings, John
Cunliffe, Lawrence
Dalyell, Tam
Darling, Alistair
Davies, Rt Hon Denzil (Llanelli)
Davies, Ron (Caerphilly)
Davis, Terry (B'ham Hodge H'l)
Dewar, Donald
Dixon, Don
Dobson, Frank
Doran, Frank
Duffy, A. E. P.
Dunnachie, Jimmy
Dunwoody, Hon Mrs Gwyneth
Evans, John (St Helens N)
Ewing, Harry (Falkirk E)
Fatchett, Derek
Field, Frank (Birkenhead)
Fields, Terry (L'pool B G'n)
Fisher, Mark
Flannery, Martin
Flynn, Paul
Foot, Rt Hon Michael
Foster, Derek
Foulkes, George
Fraser, John
Fyfe, Maria
Garrett, John (Norwich South)
Garrett, Ted (Wallsend)
Gilbert, Rt Hon Dr John
Godman, Dr Norman A.
Gordon, Mildred
Griffiths, Nigel (Edinburgh S)
Griffiths, Win (Bridgend)
Grocott, Bruce
Harman, Ms Harriet
Hattersley, Rt Hon Roy
Haynes, Frank
Heal, Mrs Sylvia
Henderson, Doug
Hinchliffe, David
Hoey, Ms Kate (Vauxhall)
Hogg, N. (C'nauld & Kilsyth)
Home Robertson, John
Howarth, George (Knowsley N)
Howells, Dr. Kim (Pontypridd)
Hoyle, Doug
Hughes, John (Coventry NE)
Hughes, Robert (Aberdeen N)
Hughes, Roy (Newport E)
Ingram, Adam
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