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We share the concern expressed by the refugee councils on the Government’s intentions with regard to age determination and the proposal to reintroduce the use of X-rays for that purpose, which was abolished in 1981 following a report on the subject by Ted White of my office. After the criticism by the Children’s Commissioner, the Chief Medical Officer, the BDA and others and the Court of Appeal ruling a year ago that the courts have the final say in age-disputed cases, there has been no public debate. I ask for an assurance by the Minister that the use of X-rays for non-clinical purposes has been definitively shelved.
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The refugee councils and others have expressed concern, which we share, about the provision that the qualifying period on temporary leave begins only when an applicant has been granted asylum—in some cases, many years down the line from their original application. Refugees already have to wait for four years if granted exceptional leave to remain, or six on discretionary leave, and it would be unreasonable to make them hang around for several more years before they can even graduate to probationary citizenship. We will seek to amend the Bill so that a successful asylum application is treated as a qualifying status.
My noble friend Lord Thomas of Gresford will deal with the proposal in Clause 50 that the judicial review applications should be transferred from the High Court to the proposed upper tribunal, for which no argument is given in the Explanatory Memorandum. I wonder whether this can be the Government’s response to defeats in the High Court, which they hope to avoid in future by writing the procedure rules for the upper tribunal themselves.
My noble friend Lord Smith of Clifton will deal with the common travel area and the advantages of counting people in and out, except over the boundary with the Republic of Ireland, while my noble friend Lord Kirkwood will be dealing with the Scottish issues in the Bill.
My noble friend Lord Wallace of Saltaire will discuss the need for the unlimited powers to restrict the education of overseas students. We fully understand the need to deal with bogus educational providers, but we thought that had been settled in 2004 with compulsory registration. If there are reasons for tightening up the criteria for registration we would certainly be prepared to look at them, but there are perfectly legitimate educational reasons why a student may wish to transfer from one course to another or even to another university.
The idea of publishing draft legislation for discussion is excellent, but in this case it was followed by a completely different set of proposals of which no warning had been given, with most of the detail left to unamendable orders. This is not the way to get the best out of Parliament, especially in an area as complex and fraught with human rights implications as citizenship and immigration.
4.45 pm
Lord Lloyd of Berwick: My Lords, I am unable to make any contribution to Parts 1, 2 and 3 of the Bill; my only reason for seeking to speak at Second Reading is my concern about Clause 50. I therefore concede at once that I do not deserve such a high place as I have achieved in the batting order.
I am afraid that explaining my concern means going back over a little recent history. My trouble is that it is difficult to do that without having in front of us the text of the Tribunals, Courts and Enforcement Act 2007, but I shall do my best. Clause 50 on its face seeks to amend the Supreme Court Act 1981, but in reality it amends the tribunals Act—which I shall call it for short—passed less than two years ago.
When the Bill that became the Act had its Second Reading on 29 November 2006, a number of your Lordships, including me, had considerable concerns
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That amendment was supported by the Conservatives and the Liberals, but it did not have the support of the Lord Chief Justice. He was concerned by the very heavy burden then resting on the administrative court; he was concerned at the need that he felt to deploy judges in the most suitable way; and he pointed out that judicial review cases do not all involve consideration of matters of great importance. He set out all of that in a letter of 7 February 2007 and it was fully accepted by everybody and understood. The noble Baroness, Lady Ashton, then suggested that there might be further discussions to resolve the problem. Those discussions indeed took place and, as a result, I put down an amendment at Third Reading which provided for judicial review to be heard in the Upper Tribunal by a High Court judge or such other person as might be agreed by the Lord Chief Justice and the Senior President. Everybody was satisfied with that solution, which is now to be found in Section 18(8) of the Act. However, all that was against the background that transfer of judicial review in immigration cases was excluded altogether, which was the effect of condition 4 set out in Section 19(1). That condition will repealed if Clause 50 is accepted as it stands.
I need not dwell on the reasons why judicial review in immigration cases was excluded; I am sure they will be familiar to most of your Lordships. The problem, as I saw it then, was that judicial review in immigration cases was not excluded altogether because the Bill as first presented in this House contained a power conferred on the Lord Chancellor to override condition 4 if he should think fit; that condition was included in Section 31A(7)(b).
It so happened that the Lord Chancellor moved the Second Reading of the Bill. During the course of that debate I asked him what the Government's intentions were in relation to that power conferred on him under the Bill as it stood. He replied that,
- “the intention of the Bill is not to revisit the territory to which I think the noble and learned Lord is implicitly referring. The intention is to refer to the upper tier of the tribunal issues that are currently dealt with by the High Court; for example, specific tax questions or vires questions about, say, social security, and some immigration questions that, with the agreement of the Chief Justice and the Lord Chancellor, would be better dealt with by tribunals”.—[Official Report, 29/11/06; col. 762.]
He carried on in the same vein.
My understanding of that was clear; that the Government did not at that stage intend to interfere largely with the view that had always been taken in immigration cases. That was confirmed when paragraph (b), to which I referred earlier, was deleted on Report in this House. Therefore, at that stage, only two years
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I turn to Clause 50 in the Bill. If the effect of repealing condition 4, which is what the clause purports to do, is that the administrative court would be bound to transfer judicial review applications in all immigration cases, I would be strongly opposed to it. Nobody wants that. It is not what the Government want, as one can see from paragraph 38 of their consultation paper, and it is not what the President of the Queen's Bench Division wants, as one can see from paragraph 10 of his response to the consultation paper. Yet, transfer of immigration cases would be mandatory if there were to be a direction by the Lord Chancellor and the Lord Chief Justice under Part 1 of Schedule 2 to the Constitutional Reform Act 2005 to satisfy condition 3 in Section 19. I accept that this is a complicated question, but perhaps the Minister will confirm that the Government do not intend to make a direction under Part 1 of Schedule 2 to the Constitutional Reform Act in relation to immigration cases.
Assuming that that is right, it would appear that the High Court will have a discretion to transfer judicial review in immigration cases. Perhaps the Minister will confirm that my understanding in that case is correct. If so, it is a solution which we should all like to see. However, we need to have some clarification of how the discretion will be exercised, whether in accordance with rules or with guidance given by the Lord Chief justice, or how. Before the next stage of the Bill in this House, can we be given some indication of how the discretion is intended to be exercised? The essential thing in my view is that, to save judicial time, all applications for judicial review in immigration cases, either on an individual basis or as a class, should start in the administrative court and only then transfer to the Upper Tribunal. However, we need to know how this will be done before we reach the next stage of the Bill.
4.55 pm
The Lord Bishop of Lincoln: My Lords, after the very detailed scrutiny of a particular clause by the noble and learned Lord, Lord Lloyd, I wish to dwell a little on some of the fundamental principles that will pertain to any debate around such issues as borders, citizenship and immigration. After all, what is a border? Is it a barrier or is it a meeting place? I imagine that most of us want to believe that a border can be a meeting place. Therefore, I imagine that most of us would rather not be debating a Bill which is predicated on a pathology of suspicion and a predetermination towards exclusion rather than welcome. I guess that most of us would rather be discussing a Bill driven by a spirit of hospitality rather than hostility towards those who wish to settle in this country, equipped, as many of them are, with very necessary aptitudes, energy and skills such as the Prime Minister has indicated will be absolutely vital if this country is to be able to respond to an upturn in the economy when it comes. But this is the Bill we have and we need to examine some of the underlying principles that seem to inform it.
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Of course, as we have heard, there are aspects of this Bill which I am sure all sides of the House will wish to endorse, not least Clause 41 regarding descent through the female line, and especially Clauses 32 and 51 relating to the welfare of children. However, as the noble Lord, Lord Avebury, pointed out, the Bill is distinguished as much by what it does not address as by what it does. It does not take the opportunity to address the continued detention of children and families or to rectify the scandal of families rendered destitute with children taken into care under Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It has to be said that “welcome” is a difficult word to associate with the Bill, which aims to strengthen our borders as barriers, thereby weakening them as meeting places. Of course, the key word is “security”. We can secure our borders in the same way as we can secure our houses against unwelcome intruders. However, it is ironic that every measure we take to secure ourselves simply testifies to our increasing sense of insecurity. That, in its turn, leaves us feeling less at ease with friend and stranger alike.
Earned citizenship is an interesting idea and has set me thinking about my own citizenship of this country. For all that the noble and learned Lord, Lord Goldsmith, has helped us to understand the richness of citizenship, there is a sense that all I had to do to earn my citizenship was to take the trouble to be born; in other words, it is mine by grace rather than merit. Therefore, I simply pose the question whether it is legitimate for me to ask others to earn what is mine by accident of birth but, above all, I believe, by the grace of God. If we are to conjure with such notions, we would be unwise to allow the Bill to go very much further before we are clear about what is meant by “being of good character”. I am grateful to the Minister for giving further explanation of what is intended by that phrase. We also need to understand a little more about what is intended by the phrase “prescribed activities” in Clause 39, which is, apparently, awaiting definition in subsequent regulations. Will, for example, active involvement in political activities qualify? Will involvement in faith-based activities qualify? Will trade union activities qualify? We know that only voluntary activities will qualify, and as the noble Baroness, Lady Hanham, indicated, if such activities are being undertaken as a pre-condition for gaining citizenship, can they be genuinely described as voluntary? How much surveillance will be involved in monitoring such activities? Who will be ticking the boxes to make sure that every criterion has been met?
This could be a brilliant idea for furthering and enhancing participation in local or community life; or it could be a cynical abuse of the voluntary sector, with an emphasis placed on passing a test rather than making a difference. The trouble is that as the Bill stands, we do not know which it is. Such a key question should be dealt with in primary legislation rather than in subsequent regulations.
Furthermore, and a little more subtly, am I alone in detecting a culture of conformity, a conformism that is in conflict with a culture of cosmopolitanism, which I believe we should be seeking to encourage rather than deter? Note that I use the word “cosmopolitanism” rather than “multiculturalism”; the latter can tend towards a separation of different cultural communities
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By no means least, the Bill offers no protection for large numbers of people currently settled in the UK, some of whom may have lived here for most or even all of their lives. Because the possibility of their becoming permanent residents has been, as we have heard, left for future secondary legislation, they are left in no man’s land when it comes to entitlement to services. More importantly, they continue to live beneath the cloud of uncertainty which is of no benefit to them and reflects little credit on us.
I know a little about no man’s land. Several years ago, I crossed over from Israel into Egyptian Sinai. Between the two border controls, we were told to disembark from our coaches and stand for some hours under the baking midday sun while officials haggled over whether to let us in or send us back. This was just a taste of no man’s land, when I grasped a little of what it means to be stripped of one’s identity, devalued and dehumanised. This border was a barrier, when I was on a mission to meet those whose initial instinct was to be hostile. We can do better than that, but the Bill as it stands will not help us so to do.
Further questions could be asked about exactly what probationary citizenship amounts to or why it is necessary, as the noble Lord, Lord Avebury, has said. Fees of approximately £700 hardly send out a positive signal to those whose gifts, talents, experience and expertise we will continue to need, even during the period of economic downturn.
If the Minister can convince us that these measures are absolutely necessary—I believe that in the present state of our troubled world he may well be able so to do—let us take no pleasure in supporting them. Perhaps they do strengthen our borders, but at great cost to our sense of a shared humanity with those who live alongside us in the global village but against whom we erect barriers which make it all the more difficult for us to meet them and so be mutually enriched.
Recently, the Prime Minister wrote:
“This is the modern definition of social justice: not just social protection but real opportunity for everyone to make the most of their potential in a Britain where what counts is not where you come from but what you aspire to become”.
Fine words; and we all look forward to their being given legislative effect as the Bill enters Committee stage.
5.05 pm
Lord Goldsmith: My Lords, in my remarks I want to focus on the part of the Bill that is described as “citizenship”, not because other parts of the Bill are not important—I believe, for example, that the questions raised by the noble and learned Lord, Lord Lloyd of Berwick, and those which I suspect will be raised by
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Speaking in this Second Reading debate gives me the opportunity to say something about that and to express publicly my thanks, not only to the non-governmental organisations that participated—there were many, some of which have been mentioned today—but to the many other people, individual citizens, people seeking to be citizens and refugees whom I met up and down the country and with whom I was fortunate to debate these questions.
It has already been said that perhaps this Bill is simply the tip of the iceberg; I am not sure how happy a phrase that may be. I am not a seafarer, but I have always understood icebergs to be rather lurking, forbidding and dangerous things beneath the surface, and I hope that citizenship is not that. Certainly, as other Members of the House have said already, this Bill is only a very partial picture of what is to come; perhaps dots of paint on a canvas or pieces of a jigsaw where it is not yet possible to see what the full picture will be. That makes it more difficult to judge what the totality of the approach of the Government is going to be.
One issue that came across very clearly in the course of my review was the two meanings of the term “citizenship”—citizenship as nationality, which is what this Bill deals with when it touches on citizenship, and citizenship as membership of a society, sharing a sense of belonging and sharing a sense of aspirations. It seemed to me that these were different concepts, but concepts that had grown too far apart. There were people who were legal citizens who did not feel that they belonged to our society and, equally, there were people who had not attained the status of citizen legally as nationals, but who played an active, valuable part in it and who shared absolutely the same aspirations and concerns as the people living next door to them.
Some of the difference between those two concepts is difficult to deal with. We cannot and should not feel that we can compel people to feel that they belong, but we could do more to bring those two concepts together. The right reverend Prelate the Bishop of Lincoln questioned the concept of earned citizenship—I support that and want to say something about the detail of it at some stage during the passage of the Bill—by saying that for many of us, we do not earn citizenship but acquire it simply as a result of birth. In my view, and in the thrust of my report, that should not stop us from looking at ways in which people, although they have acquired that legal status, can be encouraged to a much greater sense of what being a citizen means and, if not earned citizenship for British-born nationals, at least learnt citizenship. A number of the recommendations made in my report, not just about education and schools, but about whether we do enough to have a national narrative of citizenship and whether there is perhaps more ritual that we could engage in that would encourage that, seemed to me to be important.
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A credit-based system for acquiring citizenship is in principle a good thing, because it makes it clearer that becoming a citizen carries with it responsibilities, not just the ability to stand in a shorter queue at Heathrow. For those reasons, it seems right to be able to change the length of that journey through participating in the community in a stronger and more active way and demonstrating language proficiency. The details, I know from looking at this issue, are enormously difficult, and it is right that noble Lords have asked the Minister to say more about how they are to be dealt with.
The main point that I had wanted to make was to express my hope that during the passage of the Bill, or perhaps alongside it, we may learn more about the Government’s approach to these wider, complex, interlocking, but important, questions. I do not for a moment pretend that any of my recommendations are the right answers; I would like to think that at least I have identified some of the questions. They are difficult questions, but they need to be dealt with.
Citizenship is a highly important topic in an era when shared cultural and historical links often no longer seem enough to bind us together; the nature of our society has changed. Citizenship is more than rules on nationality. It is not about Britishness, at least when it is seen as a political gimmick in the devolution debate. It is about how one creates a society in which its members feel that they belong and, therefore, share the same concerns, hopes and aspirations as their fellow citizens.
Issues such as the name given to people who have the right to be here is important in that context. Noble Lords have asked why it would help to call someone a probationary citizen, rather than someone who has leave to remain or leave to enter. To my mind, there is merit in making it clear that the person should participate in the concept and the responsibilities of citizenship, but we lose him if he does not obey what is expected of him by his fellow citizens.
Time for debate is limited, and I am hoping that we will hear the Minister’s remarks and finish by the time indicated by the Chief Whip before the final business of the day, as I have a part-heard case in a foreign country which requires that I leave on a very late plane tonight. I hope to be able to hear the Minister’s final words. If I do not, I apologise to him and the House. I end by inviting him to find an opportunity to say why this Bill will advance these broader concepts. He said that this Bill was the Home Office’s contribution.
Finally, as expressed in one of the final comments in my report, I regret the fact that citizenship is dealt with in a piecemeal way across government and recommend that we perhaps should look to something like—not another department; heaven forefend that—an office of citizenship that would look at the different considerations and see how they fit together, so that we do not have a Home Office Bill on citizenship, but a government approach to citizenship.
5.13 pm
Lord Patten: My Lords, I begin by strongly agreeing with my noble friend Lady Hanham’s general comments concerning the overall standing and status of the Bill, and where it ranks in the importance of Bills. Whatever
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This is a question of what people do, rather than what they wear. The Minister in his engaging opening speech referred with excitement to the forthcoming London Fashion Week, with border guards sashaying down the runway in their doubtless glamorous new outfits. That is all very well, but it is what they do, not what they wear, which is of importance to this House.
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