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Lord Avebury: The noble Lord, Lord Alton, asked what was a sham marriage. It is defined in subsection (5) as a marriage that is entered into by a person

The registrar must report evidence--or, presumably, suspicion--that a person is in breach of the immigration law or immigration rules or intends to be in breach of them.

Does that not presuppose that the registrar knows what is in the immigration law and the immigration rules? Must not the registrar be an expert in that law and those rules in order to report any potential breach of them? How is he to know that he must report? The Explanatory Notes on clauses--which have been helpfully circulated by the Government--state that Clause 20 does not

    "confer powers on registrars or others to question couples about their immigration status".

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Nor does the clause confer powers on registrars to question the parties to the marriage about any other aspect of their conduct under the immigration law and immigration rules. I think that this clause places an impossible duty on registrars.

11.15 p.m.

Lord Hylton: In the light of what is stated in subsection (5), will the Government please express a view about arranged marriages? We know that in the context of some communities, cultures and religions arranged marriages are rather important. There is a wide variety of opinion on the subject. Some people point to the fact that arranged marriages have often worked out well whereas others question whether consent can properly be given by a person coming from another continent who may never have met his or her intended wife or husband. We may be getting into some difficulties and complexities. It would be helpful if the Government could clarify the matter.

Lord Mackay of Drumadoon: From these Benches I offer a measure of support to the noble Baroness in her amendment. I have some difficulty with its drafting in that it refers to "proposed" marriages, which, as I understand the clause, would apply to only some of the marriages that would be covered by the term "sham marriage", as that is defined in subsection (5).

Perhaps I may take forward a point raised by the noble Earl, Lord Russell, about freedom of information and invite the Minister who is to reply to indicate one way or another whether this information would be covered by the proposed freedom of information Bill; and, if it is, to explain why it would not be sensible to put this on the face of the Bill now so that at the point of delivery of the information to the Secretary of State those affected by it would, as a matter of routine, be provided with the information that may cast some doubt on the validity of their marriage if it is one that has been solemnised. If there is some argument against that, will he explain how those who are to be affected by the information will come to discover it in the short term?

Lord Williams of Mostyn: I have to say that the questions that have been raised on Clause 20 are wholly unrealistic. Perhaps I may go back to the terms of the clause. Under Clause 20(1), a duty is placed if the appropriate person who is in a statutory position of authority has reasonable grounds for suspecting that the marriage will be a sham. As the noble Lord, Lord Avebury, rightly pointed out, the term "sham marriage" is defined in Clause 20(5). All of these bogies have no relation to real life. Perhaps I may go through one or two of them.

There is no proposal here for cross-questioning of couples by registrars. If they have reasonable grounds for suspicion, which is a perfectly well known legal term and concept, they have a duty to report. Thereafter, the investigations can be made. It is nothing to do with discriminating in favour of the Church of England. As I said at Second Reading, those who marry in the Church of England or the Church in Wales generally proceed by ecclesiastical preliminaries--otherwise called

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"banns"--and the procedure for that will not change. As I said on an earlier occasion, there is no evidence to suggest that religious marriages are abused for immigration purposes; and we are talking about abuse here.

Paragraph 77 of the Explanatory Notes makes the position quite plain. It states:

    "It does not confer power to refuse to marry on grounds of immigration status".

It goes on to state--this point has been raised by two or three noble Lords:

    "Nor does it confer powers on registrars or others to question couples about their immigration status".

Nothing could be plainer. Indeed, Clause 20 states that if there are reasonable grounds for suspicion, the report is required to be made. Nothing here interferes with any so-called spiritual relationship between the registrar and those over whose marriage he is presiding in a civil ceremony. I am advised that the registrars welcome the existing informal arrangements for reporting being put on a statutory footing. All that the registrars are being asked to do is to report their suspicions.

There are two or three further questions. If there were automatic copying of reports to the couple, registrars would feel restrained in setting out their reasonable suspicion. They might be reluctant to comply with the duty to report and that would undermine the purpose of the clause. Often, the report will go to the Home Office and in some circumstances the investigation will be made. In some instances, no action will be taken following the receipt of the report. We believe that other reports will undoubtedly show the existence of sham marriages which the Home Office rightly will want to investigate. If couples and racketeers were given advance notice of the investigation the whole underlying purpose of the reports would disappear.

The question was raised about absolute or qualified privilege in libel proceedings, if there were to be any. The answer is qualified. The answer to the question about freedom of information is that there are in the draft Bill, which is out for consultation for a two-month period, deliberately drafted restrictions about the disclosure of information which is being obtained with a view to the prosecution of crime. These offences are capable of being criminal offences.

Baroness Williams of Crosby: With great respect, I found the Minister's answer unsatisfactory. Perhaps I may briefly explain why. I have in front of me the draft guidance to registrars in England and Wales. It indicates that the registrar may refuse to proceed with a marriage because he believes that there is a lawful impediment to it. It also indicates that he may base his doubt about the genuineness of the marriage on the basis of either evidence produced to substantiate the dissolution or termination of a pervious marriage and doubt as to the true identity or marital status of the couple to the marriage. Incidentally, one of the things registrars are asked to look at is a major age difference, which would catch many marriages in this country. Thirdly, which is the aspect that is troubling,

    "or as a result of representations made to him by a third party".

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We are not suggesting that the information in the report provided to the Home Office should be provided in advance. We are merely indicating our belief that at some point in the proceedings before final refusal is made the couple should know what is being reported about them and given the opportunity to respond.

Frankly, as representations may be made privately by a third party as to the non-genuineness of the marriage, such representations could easily be made by people for purely personal reasons; someone who is vindictive to one or other of the parties to the marriage and wishes to try to destroy the prospect of that marriage--

Lord Williams of Mostyn: The noble Baroness argues the reconstruction of her amendment because it states:

    "and must at the same time send a copy of this report to the parties to the proposed marriage".

Baroness Williams of Crosby: I accept that that is what the amendment states. I believe that the registrar would have every right to make his doubts known to the Home Office and then to convey them to the young couple--or the older couple, as the case may be--and it would then be possible for the Home Office to take whatever action it deemed right having given an opportunity for the couple to refute the charge made. If it would help by redrafting to state:

    "and subsequently within a reasonable time",

we should be prepared to do that.

However, we must insist on the point that the substance of any charge that can be made on the basis of representations from a third party must be open to refutation in order to avoid the possibility of serious efforts by a third party to try to destroy the possibility of a genuine marriage. I repeat that immigration officers are very good indeed at chasing up sham marriages, and so they ought to be. No one is refuting that.

Secondly, we already know that the advice given by the Registrar General, or more precisely advice given to registrars of marriage, is incorrect. It failed to recognise that under the British Nationality Act 1981, which came into force in 1983, children born of families who came from elsewhere were British citizens. Even in the most recent information provided by the Office for National Statistics the advice is inadequate and incorrect. That advice would be found to be incorrect if the information was made available to the persons concerned. It was refuted by many legal representatives, but it was not changed in the guidelines. Even the information given to registrars turned out to be factually incorrect. They might have reached the incorrect conclusion that a marriage had an impediment to it. My understanding is that that has still not been put right. I shall return to that on Report, but for now I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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