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Lord Dholakia: I thank the Minister for that explanation. As he rightly pointed out, the matter was discussed extensively during the passage of the Race Relations (Amendment) Act and I would want to consult the Commission for Racial Equality. The Minister said that Mary Coussey will be considering matters related to immigration and nationality. Perhaps I may point out that at one time she was a member of the staff of the Commission for Racial Equality and was keen that the Race Relations Act immigration matters should have the same provision as those of nationality.
I shall return to the matter at a later stage, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Nationality decisions: discrimination]:
Clause 9 [Legitimacy of child]:
Viscount Bridgeman moved Amendment No. 89:
- Page 6, line 31, leave out from "shall" to "House" in line 32 and insert "not be made unless a draft of the regulations has been laid before and approved by a resolution of each"
The noble Viscount said: The amendment would require regulations under paragraph (c) of new subsection (9B) of Section 50 of the British Nationality Act 1981 to be made by affirmative resolution. However, the amendment also has a probing implication, for we are seeking to question the Government's thinking in respect of the prescribed requirements which will be laid down to satisfy paternity in respect of a child for nationality purposes.
What other requirements do the Government have in mind that go further than those laid down in paragraphs (a) and (b) of the subsection; namely, the husband of the mother or the person treated as the father under the Human Fertilisation and Embryology Act? I hope that the Minister will be able to clarify the position. I beg to move.
Lord Bassam of Brighton: Taken as a whole, Clause 9 will for the first time allow an illegitimate child to derive a nationality benefit from the status of his or her father. But where paternity is not determined by the Human Fertilisation and Embryology Act, which makes provision as to the parentage of children born as a result of certain fertility treatments, such derivation will be dependent on the satisfaction of requirements as to proof of paternity. These evidential requirements will be set out in regulations.
The regulations have yet to be drafted and I am afraid that I am not in a position today to give an undertaking that we shall be able to publish them in draft form while the Bill is still before this House. However, I can say that our expectation in most cases will be that, where the child was not born during the continuance of a marriage and the Human Fertilisation and Embryology Act does not apply, paternity will be proved by DNA evidence. Our intention is to adapt, for this purpose, the non-statutory scheme which has for many years operated successfully in the entry clearance context. However, where a requirement to produce DNA evidence would be inappropriate, for example, where the alleged father had died before the citizenship claim could be established, other evidence such as judicial declarations of paternity would need to be considered.
In these difficult and delicate matters there will need to be flexibility to amend the regulations in the light of experience and in response to changing circumstances such as scientific or legal developments bearing on the determination of paternity. Moreover, there will need to be some flexibility in the application of the prescribed requirements, given the range of situations with which officials are likely to be confronted. It would, accordingly, be inappropriate to set out the evidential requirements on the face of the Bill. I submit that the negative resolution procedure would enable sufficient parliamentary scrutiny of what would be essentially administrative arrangements.
I have also had the opportunity to read the report of the Select Committee on Delegated Powers and Regulatory Reform. I draw noble Lords' attention to paragraph 13, which covers Clause 9. The paragraph states that although some parliamentary scrutiny of the regulations is thought to be desirable the negative resolution procedure is considered sufficient. We would normally follow the recommendation of the delegated powers Select Committee. In view of that, and other matters I have raised in response to the amendment, I hope that the noble Viscount will feel able to withdraw the amendment.
9.30 p.m.
Viscount Bridgeman: I am grateful to the Minister. I appreciate that the Select Committee's report requires a negative resolution. We appreciate that time is required to get the regulations right. Can the Minister assure us that they will be available before Third Reading?
Lord Bassam of Brighton: I am not able to give that assurance. We shall, of course, endeavour to speed matters along. We shall keep the noble Viscount abreast of developments as regards the regulations.
Lord Avebury: Did I understand the Minister to say that DNA evidence could not be adduced in cases where the father had died? Will he amplify that? If the family is agreed that DNA evidence should be obtained from the corpse of the putative father, that would be a legitimate way to proceed. I can see no reason why the alleged father's death should prevent DNA evidence from ever being used.
Earl Russell: While the Minister is filling in time awaiting the answer to that question, perhaps I may say that he is right to say that it is not practical to spell out on the face of the Bill all the procedures that will be used. We are in a rapidly advancing field of science. Were we to specify every procedure that would be appropriate today, and even were we to get it right, it still would not follow that it would be right in 18 months' time—or still less that it would be right in 18 years' time.
The case for flexibility is overworked but if there is one place where it stands out this is probably it. I think that the Minister is justified in citing it.
Lord Bassam of Brighton: I said in my initial response that there were circumstances where DNA evidence would be inappropriate. I cited the example of the father having died before the citizenship claim could be established. In those circumstances, other evidence would be sought.
With regard to the noble Earl's comments, perhaps the front page of today's Evening Standard makes it patently plain that we have at all times to see what happens with the developments of these areas of scientific evolution. I am grateful to the noble Earl for that observation.
Viscount Bridgeman: I am grateful to the Minister for his explanation and in particular for his assurance
that we shall be kept in touch with regard to the regulations, as and when they appear. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 10 [Right of abode: certificate of entitlement]:
Lord Bassam of Brighton moved Amendment No. 90:
- Page 7, line 18, leave out "(c)" and insert "(a)"
The noble Lord said: Clause 10 enables regulation of the procedure for applying for a certificate of entitlement to the right of abode in the United Kingdom. The procedure is currently unregulated, except in regard to the level of fee and procedure for appealing against a refusal to issue such a certificate.
Regulations are to be made by statutory instrument, which will be subject to negative resolution. The regulations may specify such matters as the person to whom an application is to be made, the form of the application and the documents which must accompany it. Regulations may also make provision for certificates to be revoked in certain circumstances—for example, where obtained by the provision of false information—and/or to cease to be valid after a given date.
The amendment would allow the regulations to include provision as to the consequences of a failure to submit the application to the appropriate authority. The provision might state, for example, that an application will still be valid if sent to a part of the Home Office other than the Immigration and Nationality Directorate. It accordingly affords a degree of flexibility with regard to the practical application of any formal requirement on this point. I beg to move.
On Question, amendment agreed to.
Lord Dholakia moved Amendment No. 91:
- Page 7, line 29, leave out from "shall" to end of line and insert "not be made unless a draft has been laid before and approved by resolution of each"
The noble Lord said: Amendment No. 91 has the support of my noble friend Lord Avebury, the noble Viscount, Lord Bridgeman, and the noble Baroness, Lady Anelay of St Johns.
Under Clause 10 the Secretary of State may make regulations in 11 major areas. I do not need to read out the areas in which regulations can be made. It is a matter of serious concern that, if these regulations are made by negative resolution, there will not be an opportunity to comment on them or discuss them in the House. The amendment seeks to ensure that any regulations made by the Secretary of State under Clause 10 are subject to the positive rather than the negative resolution procedure.
Clause 10(2) shows the scope which the regulations may assume, hence the caution we are trying to exercise. It is sensible that we should progress in this manner. I hope that the Minister will agree to the amendment. I beg to move.
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