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My noble friend said that how the law used women in this matter was contrary to the principles of gender equality, and his amendment had the support of womenkind. It prompts me to ask an additional question: will the Government now repeal our reservation on nationality to the Convention on the Elimination of All Forms of Discrimination Against Women, which it seems was entered into solely to protect us from complaints about this discrimination? I remind the Minister of the case of Mrs Constance Salgado, whose name I have mentioned in previous debates. She was barred from making a complaint to the committee on the elimination of discrimination against women simply because of the resolution that we entered to the convention.

Mrs Salgado married a Columbian citizen and lives in Columbia. I sent the Minister, Mr Byrne, a rather nice picture of Mrs Salgado and her son, who came to dinner with me recently. We were discussing this issue because she brought with her the son who was born before 7 February 1961 so is not a British citizen, whereas her younger son, who was born after the date, is a British citizen. Her family very neatly illustrates the paradox of the anomaly of this date.

I hope that the Minister will be prepared to consider—not perhaps this afternoon, but at his leisure—whether as well as introducing the legislation

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that confers citizenship on these people he will move towards the repeal of the reservation entered into on the convention.

Lord Higgins: My Lords, this is the third item of business on today's Order Paper on which I intervene. It may be thought that this displays my versatility, but I fear not. On the two previous occasions I might reasonably claim some experience, if not expertise; but one knows very well in your Lordships' House that to intervene in an area you do not normally speak on, when there is such great expertise in the House, is a dangerous thing to do, particularly when the noble Lords, Lord Goodhart and Lord Avebury, have spoken not only with expertise but with a history on this issue over very many years. Indeed, the history which was outlined by the noble Lord, Lord Goodhart, shows a kind of “Yes Minister” over the ages—that the Government have gradually given way little by little until we have ended with one final step to be taken. I very much hope that the Government will take it.

I was encouraged to take part in the debate today and in Grand Committee by a very passionate letter I received from someone in the category the noble Lord referred to. He is right in saying that the number of people in this category is very small, and that there are no significant financial or precedent problems as far as that group is concerned. The noble Lord referred to a letter in Grand Committee. The letter I received states:

That remains the position. The noble Lord’s amendment would overcome that problem; it is right that it should. As he rightly points out, there is discrimination in this case not only on gender but, curiously, on age.

In reply to the debate on 18 July in Grand Committee, the Minister said that there was a principle that an adult seeking British citizenship should normally be able to demonstrate on the basis of his personal connections with this country why his application should succeed. Of course, the extent to which that qualification has been extended is the same in the case of someone born of a British mother as of a British father. There is no reason why, if they have a reasonable connection—one would have thought that the fact that one’s mother was British was a not unreasonable connection—and passionately wish to become British citizens, that should not be allowed.

In Grand Committee, the Minister was kind enough to suggest that we might discuss the matter further, and I appreciate the fact that I was able to have a brief meeting with him and a discussion with one of his officials, which was extremely helpful. I do not believe that there is any longer any justification for not taking the final step in this matter. I understand that the

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Minister is not unsympathetic to that idea and suggests that action could be taken in a so-called simplification Bill, which he envisages taking place fairly soon. That would most certainly be welcomed, particularly because the rules of order prevent us including British citizenship; the amendment covers only right of abode. Therefore, it would be better if it could be extended on the basis of citizenship, even though that may mean some delay. If that is the Government's attitude—no doubt the Minister will let us know whether it is—that is a considerable, even final, step forward.

I make only this final point. The letter to which I referred stated:

The problem is, as has rightly been pointed out, that these people are getting quite old and there will obviously be some delay before proper rectification on the basis of citizenship can be made, so I hope that in addition to giving a forthcoming answer today, the Minister will say that in principle he understands that there ought not to be discrimination on the basis of either gender or age.

Baroness Hanham: My Lords, there has been unanimity among those who have spoken and I understand that the matter was considered very firmly in Committee. I just add my plea that we should see this matter resolved one way or another. Clearly, the number of those born before 1961 will become fewer; nevertheless, their views are important. I hope that the Minister will be able to give the assurances that have been sought.

Lord Bassam of Brighton: My Lords, I thank the noble Lord, Lord Goodhart, for raising this issue again, as it enables me to clarify and, I hope, resolve the matter once and for all. I am conscious that noble Lords know the detailed background, but for the benefit of the House it may assist if I set out some of the background from a Government perspective and explain why we have got to where we are and how we should now move forward.

Before 1983, British women were unable to pass on their citizenship in the same way as men, but there was discretion within the British Nationality Act 1948 to confer citizenship on any minor by registration. On 7 February 1979 the then Home Secretary announced that he would exercise this discretion in favour of any child of a UK-born mother who applied for registration before his or her 18th birthday.

We recognised that some will have learnt of the 1979 policy change too late to benefit from it. We therefore changed the law in 2002 so that a person can apply to be registered as a British citizen if he or she would have been registered in accordance with the policy announced in 1979, had an application been made while he or she was still a minor.

Lord Goodhart: My Lords, I was going to say that the year was 1961, but I think that that was backdating from 1979.



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Lord Bassam of Brighton: My Lords, that is one reason why I want to clarify things. The legislation therefore provided for the registration of those born after 7 February 1961. We were not persuaded that it was right to go any further than this, given the principle that an adult seeking to be granted British citizenship should normally be able to demonstrate his personal connections with this country and the fact that those who would benefit from any further relaxation of the requirements in the 1981 Act were at least 46 years old and could be well established elsewhere.

There has been pressure to change the law to allow those born before 1961 to benefit from this provision, which we have resisted on the grounds that there would always have to be a cut-off point, about which there has been some debate subsequently, and that those born before 1961 could not have benefited from the 1979 concession.

Although we have done much to right the wrongs of previous nationality legislation, the current position does not allow the adult children of British mothers the same rights to British citizenship as those of British fathers and we want to correct this. However, to give them a right of abode in the United Kingdom without citizenship is only a partial solution and not the way to put this right, as the noble Lord, Lord Goodhart, said.

This amendment would have a much wider scope than the current registration provision, as it would confer the right of abode in the United Kingdom on any person who would have qualified but for his or her date of birth. However, it is our view that the rights associated with British citizenship, including the right of abode in the United Kingdom, should be closely linked with British citizenship. We would not wish to create a category of people who held the right of abode without having acquired British citizenship. We would like to legislate to give British citizenship to those affected and so have committed ourselves to addressing this problem, as noble Lords already have detected, in a simplification Bill. Because of its wider scope, it will allow us to provide an avenue to citizenship for those concerned, rather than just a right of abode.

I have asked officials to give me an idea of how quickly we could right this wrong and ensure that this problem is sorted out. There will be a consultation which will begin before November. We expect, therefore, a draft Bill to be produced next summer. One would then normally expect a Bill to be introduced in November 2008. It is not in my gift to say what will or will not be in the Queen’s Speech in November next year, but that is an indicative timetable, and is as far as I can go.

I express my continued gratitude to all those who have worked on this. I first alighted on the problem when it rather hit me in the face at Question Time in your Lordships’ House, and I must say that I was left scratching my head, genuinely puzzled over how the situation could have arisen. I looked at what previous Ministers had had to say, but I could see that they were probably struggling as well. In fairness, we have come up with an approach that will work. This Bill is

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not the right vehicle because the issue does not fall naturally within its scope, I am also grateful that the major opposition party has thought about this as well and has given its support to other Peers who have raised the issue. We have now reached a satisfactory conclusion.

Just one outstanding question that was raised by the noble Lord, Lord Avebury, is left to answer. He asked whether we would now withdraw our reservation to the Convention on Nationality. That is a fair point. We will look into this—

Lord Avebury: My Lords, I referred to the convention on the elimination of discrimination against women.

Lord Bassam of Brighton: My Lords, I understand what the reservation relates to. We will look into these issues in the context of considering the legislation, but I cannot give an absolute commitment today. I am grateful to the noble Lord for raising the issue. That said, I hope that the noble Lord, Lord Goodhart, will feel able to withdraw his amendment.

5.15 pm

Lord Goodhart: My Lords, I am most grateful to the Government, and particularly to the noble Lord, Lord Bassam, for having reconsidered their earlier position. I recognise that my amendment is a second best, because for the reasons which have been explained, it cannot confer citizenship, and therefore this Bill is not the right vehicle for removing the anomaly. My remaining concern is that of the timetable. I hope very much that it will be possible to have the new legislation in force during the present Parliament, particularly as it is now unlikely that a general election will be called before May or June 2009 at the earliest. There is a real possibility here, but I am aware that slippages can occur in the timetable for legislation. Given that the people who will be affected by this are pretty well into middle age by now, I hope that the prospect which has been opened up by the Government will not be darkened by undue delays. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

The Earl of Listowel moved Amendment No. 27:

(a) children of different ages;(b) children originating from, or due to be returned to, different countries;(c) children falling into different classes as specified in the guidelines.(a) the number of children detained during the previous year whose detention lasted up to—(i) one week;

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(ii) two weeks;(iii) one month;(iv) three months;(v) six months;(vi) one year;(vii) a period longer than one year.(b) the number of times each of those children was detained;(c) following their release from detention, the number of children in each year—(i) who were removed from the United Kingdom;(ii) who were granted permanent leave of residence;(iii) who were granted temporary admission;(iv) whose destination falls into any other category to be determined by the Secretary of State.(a) “child” means any person who has not reached the age of 18 years at the commencement of the year to which the relevant annual report relates;(b) “year” means a calendar year.”

The noble Earl said: My Lords, this amendment would require Her Majesty’s Government to publish guidelines specifying the maximum length of time spent by children in detention within the immigration system and to publish regular updates on the number of children being detained, the length of their stay, their previous detention and what becomes of them when they leave detention. The purpose of the amendment is to probe the Government a little and to elicit further information from them, thereby increasing transparency. The Minister said in Committee:

In the past, a few children have been detained for unacceptably long periods despite various apparent protections such as ministerial authorisation for detention. We were reminded of this by the noble Lord, Lord Judd, at our previous sitting when he told us that some children are still being held for a month to two months, and some for even longer than that. There are only a few but, still, they are being held. The purpose of the information is to be aware of how the Government are performing and to express our concern as soon as performance begins to slip, if it does.

In Committee the Minister said that the Border and Immigration Agency is considering ways to improve the statistical information available on the detention of children. I have recently heard from the Minister, Liam Byrne, who gave me a little more information, and I would be grateful for any news of further progress on that review.

The Minister was asked in Committee how many children had previously been detained, and to indicate whether some children will have been in and out a number of times. He replied:

centrally collected.



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Perhaps he would be good enough to write to me with that information if it is available.

I hope circular detention happens infrequently. I have met but a few detainees on past visits, but at least one of them had had that experience. It would be helpful to have further reassurance. I look forward to the Minister’s response. I beg to move.

Lord Avebury: My Lords, the noble Earl never ceases to be vigilant in his defence of the rights of children, and he commands enormous respect on all sides of the House for the work he does. His demand for guidelines on the length of time children can be detained and the publication of more detailed statistics on the use of detention should therefore be carefully considered. The statistics now being published quarterly are better than nothing but they give only a snapshot at the end of the quarter, and we know from debates on previous immigration legislation that when Ministers wanted the information for a particular occasion, the BIA or its predecessor had no difficulty in producing it.

There seem to be indications in the latest quarterly figures that fewer children are being detained for shorter periods. If that is so, it should be that much easier to keep track of them and produce the information the noble Earl seeks. I would sooner that he had suggested it as part of the quarterly statistics rather than annually, because then if there were changes in the frequency or length of children’s detention, they would show up earlier and would allow Members to seek explanations by question or correspondence with Ministers.

I also agree with the noble Earl that more precise guidance should be given to the BIA on when to detain and for how long, though I am not sure it can be pinned down in precisely the form the noble Earl requires. Listening to the Minister on Tuesday, one might have thought that the criteria for detention were already sufficiently narrow, were it not for the fact that we all know of cases where the criteria have been grossly and flagrantly violated, even when repeated appeals were made to Ministers to intervene. That is the difference between policy and practice that has been referred to so frequently in your Lordships’ discussions on the Bill. The case that always comes to my mind is that of Jacqueline Konan and her daughter Thelma, on whose behalf I begged the then Minister, Beverley Hughes, and the Immigration Service 13 times to release them, without effect. It was only when they finally got competent advice from a new firm of solicitors that not only was she released and she won her case, but she was also awarded substantial damages by the High Court for wrongful detention over the major part of her incarceration in Harmondsworth.

The Minister said on Tuesday that children were detained only for a few days prior to removal with a view to making arrangements for their care by a local authority as members of a family, where it was considered likely they would abscond, or as part of the fast-track asylum process. But the fact that some children have been detained for very long periods indicates that adherence to those criteria needs to be

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more closely scrutinised. That is where I think we should look for better safeguards, rather than trying to attach particular numbers of days to given circumstances. There is a rule that Ministers have to approve the detention of children beyond a certain point, but they exercise that responsibility without proper parliamentary oversight. That is a gap in our armoury of protection.

In his letter of 26 July, dealing with matters raised in the fifth Grand Committee sitting, the noble Lord said that from March 2004 to July 2007 Ministers had declined to approve continued detention beyond 28 days in 14 cases only. If Ministers were obliged to place anonymised copies of their decisions to approve continued detention beyond the 28 days in the Libraries of both Houses, with a note on the reasons for their decisions in each case, we would be able to evaluate the process and assure ourselves not only that the declared purposes of children’s detention were being strictly observed but that, wherever possible, alternative arrangements were being made.

Lord Judd: My Lords, I am certain that my noble friend will not accept the amendment; it is not difficult to make that reckoning. However, I urge him to get the message, which is very clear. I congratulate the noble Earl on his deep commitment to these matters and on once again having challenged the House.

I simply make the point that either children are central to our policy considerations or they are not. If children are central, each individual child matters. They are not just statistics. At all stages in the treatment of children, when they are confronted with officialdom, a primary concern in the ethos should be, “Here is a child caught up in this situation; what are our responsibilities to this child?”. I do not believe that we begin to fulfil that ethos unless we are prepared to get on record exactly what we are doing and how it is being done.

The noble Lord, Lord Avebury, made the point again—it has been made in our deliberations on previous amendments—that there can be a big difference between policy, genuinely and sincerely made with real commitment, and its application. That means that one has to win the ethos; one has to win the commitment of people at all levels. If one is to do that, people need to know what is required of them.


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