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Lord Avebury: My Lords, we have had two debates on the Government's new marriage clause, to which the amendment relates, but this is the first time we have considered it, as my noble friend said, with the benefit of the advice of the Joint Committee on Human Rights. I would like to place on the record our extreme gratitude to the committee for the rapidity and thoroughness of its work on all the clauses involved in recommitment as well as on other matters that invariably come before your Lordships that may have human rights implications.

We fully support the Government's aim of clamping down on sham marriages and we acknowledge that the increasing number of reports made by registrars under
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Section 24 of the 1999 Act indicates that further measures need to be taken to solve the problem. However, we have not been convinced that the existing powers, as my noble friend said, under criminal and immigration law are insufficient to curb the use of marriage as a means of evading immigration controls.

In that we are greatly reinforced by the discussion in paragraphs 36 to 81 of the JCHR report. The fact that almost half the report is devoted to the issue reflects its importance and the sensitivity of the human rights at issue, as we have sought to persuade your Lordships on two previous occasions.

For good measure, the JCHR not only enumerates the ECHR rights in Articles 12 and 14 but also the provisions in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to which the United Kingdom is also a party. The first question the committee asked was whether the requirement in Clause 19(3) that express authorisation must be obtained for a marriage is a breach of Article 12 of ECHR; the right to marry. As it points out, although that right is according to international law, the wording is not interpreted as conferring an unlimited discretion on governments to circumscribe the right because otherwise Article 12 would be redundant.

Any restrictions on the right to marry have to be for a legitimate aim and must be proportionate. Thus, for instance, it was held that laws preventing prisoners from marrying were not within the scope of Article 12. We have to apply the same tests of legitimacy and proportionality to the proposals before us. In that regard, the JCHR has picked up the point we made in Committee that without knowing more about the Section 24 reports and the "striking discrepancy", as the report calls it, between the 2,251 reports by registrars and the 37 persons charged with criminal offences, we are not in a position to reach a conclusion.

As the committee says, we also need to know how many people have been refused leave to remain as spouses on the grounds that their marriages were sham; Amendment No. 15 touches on that point. The JCHR says that there is a significant risk that the proposed restriction on the right to marry may be disproportionate. It gives three substantial reasons, which I shall not attempt to summarise. It concludes that there is a significant risk that the requirement to obtain permission to marry as presently drafted will be incompatible with the right in the ECHR.

The committee also raised discrimination against persons who belong to a religion other than Church of England, to which I referred in Committee. The noble Lord, Lord Rooker, said that there was,

However, the committee did not consider that "a sufficiently weighty justification" for treating members of one religion preferentially in a private matter that affects almost everyone.

Finally, the committee takes up a suggestion I made in Committee that it should consider the application of Article 14 on non-discrimination together with
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Article 12 on marriage since the clause restricts the rights of non-EEA nationals to marry and therefore treats them less favourably because of their nationality. The committee says that in principle a prior authorisation requirement could be justified if it applied only to those in the UK unlawfully and that more generally it is legitimate to regulate the right to marry so as to prevent the exploitation of marriage as a means of circumventing immigration control.

But as drafted, it considers that there is a significant risk that the proposals will be found to discriminate on grounds of nationality without objective and reasonable justification. It is profoundly unsatisfactory that we should be considering the advice of the JCHR on this important matter at the eleventh hour and without the benefit of a reasoned answer from the Government to the detailed objections that they raise to the clause.

We regret that decisions are not going to be made on the basis of reasoned argument and that Ministers can easily cast aside the opinions of a committee established by your Lordships for the purpose of ensuring that we avoid making human rights errors that will land the Government in the courts. In the past the Government have ignored the JCHR's advice and have good reason to regret it. I hope that that will not happen again.

Baroness Anelay of St Johns: My Lords, I have tabled two amendments in the group, Amendments Nos. 20 and 23 to which it may be convenient for me to speak. Amendment No. 23 is supported by the noble Lord, Lord McNally, and the noble Lord, Lord Avebury. In referring to Amendment No. 20, it is a case of putting the cart before the horse. The nature of Third Reading procedure means that I know it is difficult for the Minister to move his amendments until the end when he is responding to everyone else's.

Although the Minister has not yet moved his amendments in this group, I shall welcome them when he does so because they more than adequately respond to the concern I reflected in my Amendment No. 20. The difficulty is that all of us start from the position that the noble Lords, Lord Dholakia and Lord Avebury, have so properly enunciated: we are all against the use of sham marriages for the purposes of obtaining residence in this country. That is not what the institution of marriage is about.

After that we get into difficulties as to how the measure should be applied. I say to the Government that we want to support them if we can but so far we are not convinced that they have properly put in place a mechanism to prevent sham marriages taking place. Therefore, I think that the Government have gone one step further in the right direction. I shall ask the Minister to speak to those amendments rather than simply repeat everything in relation to my Amendment No. 20.

Amendment No. 23 reflects a concern that I had at earlier stages of the Bill. I pointed out that, as we are entering wholly uncharted territory in creating this
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super-league of registrars, it would be very valuable to have some way of reporting back to Parliament on the work that they were doing, and it would be valuable to know whether or not the Government's new provisions were having the impact that they intended or whether there were unintended consequences. The Minister had given his reasons for rejecting those amendments.

Last week, I had a very helpful meeting with the Joint Council for the Welfare of Immigrants. I am grateful to its members for taking the time to meet me. They put forward Amendment No. 23, which is before the House today. I hope that the approach that it adopts appeals more to the Government than did my original attempt. It provides for the Secretary of State to appoint an independent monitor, who would report on the refusal of permission to marry. He would report to the Secretary of State and the report would be laid before Parliament. Such an independence of approach could be very valuable indeed.

Earlier in our debates today—I noted that it was at about 3.40 p.m. when we were debating Amendment No. 3—the Minister seemed to say that he thought that that was a good idea. He referred to the fact that my idea of a monitor has a precedent in the 1999 Act, which creates an entry-clearance monitor. Indeed, he reminded us of other examples. Therefore, I hope that there is an appropriate read-across to this proposal. An independent monitor would be a valuable step forward here as well.

Baroness Carnegy of Lour: My Lords, government Amendments Nos. 16 to 19, 21 and 22 in this group are a handsome response to my noble friend's Amendment No. 20 and to the discussion that we had at an earlier stage. When we were debating this matter earlier, I asked what the position would be as regards Clause 21, which relates to Scotland. Looking at that clause, I am not sure whether any party to the purported marriage must appear with the registrar. If no one appears, the safeguard which the noble Lord is building in will not be possible. I wonder whether anyone who has it in mind to perpetrate a sham marriage will flee to Scotland to do so. I am not sure that that would be desirable.

Did the Government discuss this issue with Scottish Ministers to ascertain the position? Last night, I was lucky enough to be invited to a reception at the Scotland Office in Dover House and the First Minister was present. At that point, I had not realised quite what the position was. If I had, I think that I would have discussed it with him over a glass of wine. Does the Minister know the answer to that now?

In relation to Amendment No. 23, it seems that it is highly desirable to have some form of monitoring, and an independent monitor might well be a fairly unbureaucratic and inexpensive way of achieving that. I hope that the Minister will look sympathetically at the proposal.

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