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Lord Lester of Herne Hill moved Amendment No. 8:


The noble Lord said: My Lords, this amendment seeks to make clear that discrimination on grounds of ethnic origin will not be permitted in granting or refusing British nationality under the British Nationality Act 1981. Again, the reason for tabling and moving the amendment is to enable the Minister to explain exactly why what looks, on the face of it, to be a broad and extraordinary amendment allowing ethnic discrimination even in relation to nationality decisions should be necessary. There may be a good case. The only one of which I know is that of two groups of people in Hong Kong when it was suggested that some flexibility was required. I am sufficiently in the dark to feel that we need some light to be thrown on this. That is why I beg to move this amendment.

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4 p.m.

Lord Cope of Berkeley: My Lords, it has occurred to me that another instance where this might be required is in relation to those families which, for a number of generations, were in India in connection with the Raj, either in the Indian Civil Service, the Armed Forces, the private sector or as missionaries and so on. In some families, a number of generations might have been born in India, yet their ethnic origin is still that of this country. That might be relevant as regards nationality decisions. I am not sure, but it seemed to me that that might be another instance where this provision was required.

Lord Bassam of Brighton: My Lords, I am sure that your Lordships will now be fairly familiar with our early debates and with the concerns voiced by the noble Lord, Lord Lester, and others about the exemption for immigration and nationality functions in Clause 1 of the Bill--new Section 19C. The Government are well aware of the particular concern about the exemption provision in relation to discrimination on grounds of ethnic origins. As I explained on a number of occasions, the exemption, as currently drafted, would permit discriminatory activity only when required or authorised by legislation and would safeguard Ministers' personal decisions taken on individual cases in the national interest. Immigration staff operating those arrangements would do so in strict accordance with instructions that will, as far as practicable, be available for public scrutiny. I assure your Lordships that any member of staff exceeding Ministers' authorisations would be dealt with very firmly.

With your Lordships' permission, I shall also attempt to deal with Amendment No. 9 because I see the two issues as linked. The noble Lord, Lord Lester, has made clear his view.

Lord Lester of Herne Hill: My Lords, I hope that I am not taking up too much of the time of the House, but it would be convenient to deal with Amendment No. 9 separately because it raises slightly different issues--I have not spoken to both--otherwise we shall have unnecessarily to go over the same ground twice.

Lord Bassam of Brighton: My Lords, I am happy to do that. I shall proceed on the basis that we are dealing simply with Amendment No. 8. The effect of this amendment, as I understand it, would be largely to make it unlawful for nationality functions under any of the nationality Acts listed in Clause 1 to have any regard to a person's nationality, or national or ethnic origin. Here, the functions of which we talk are the granting or refusal of British nationality to persons who apply for it. A section of the British Nationality Act 1981 already provides that any discretion in this area is to be exercised without regard to the race, colour or religion of any person who may be affected by exercise of the discretion. It is for those reasons that we believe that we should continue to exempt those functions. We think that it would be anomalous to have to depart from that. That is why we ask the noble

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Lord to withdraw his amendment. Clearly, there are matters to be considered. No doubt debates in another place will return to some of these issues. For those very practical reasons, we hope that the noble Lord will withdraw his amendments this afternoon.

Lord Avebury: My Lords, I am rather confused by the Minister's reply. I do not know whether other noble Lords understand him. He has told your Lordships that the British Nationality Act 1981 compels or obliges Ministers to exercise their discretion without regard to race, colour or religion whereas if this provision goes through unamended it will be lawful for Ministers to exercise their nationality functions--in accordance with the law, that is, as the Minister has explained--in such a manner as to discriminate against another person on the grounds of nationality, or ethnic or national origin. It seems to me that the Minister's explanation has not removed the incompatibility, which he himself has pointed out, that exists between the British Nationality Act 1981 and this legislation. I may have missed something in the Minster's speech, but that is how I understood it.

Lord Lester of Herne Hill: My Lords, I am grateful to the Minister and my noble friend for their contribution to this short debate. I am still a little mystified about the answer we have received. As a civil servant, may I say that I "put up a marker" that it should be further considered?

As I tried to make clear, the purpose of the amendment is to clarify the wording of the Bill to make it clear that discrimination on grounds of ethnic origin only, and nothing else, in granting or refusing British nationality under the British Nationality Act is not permitted.

Section 41 of the Race Relations Act 1976 contains an exception permitting discrimination on grounds of nationality and, I think, national origins in granting or refusing nationality. I take the point that flexibility may be required in respect of national origins in granting citizenship, but I cannot at the moment see what are the circumstances where ethnic origin--which is very close to colour or race, as distinct from national origin--would be a factor in the granting or refusal of British nationality. I am certainly not going to press the amendment now, but I think that this matter may require further thought in another place and, perhaps, hereafter also in this House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 9:


    Page 2, line 25, at end insert ("in accordance with the Immigration Rules").

The noble Lord said: My Lords, the purpose of this amendment is to ensure that discrimination on grounds of nationality, or ethnic or national origin is carried out in immigration and nationality functions permitted by the Bill in a way which is public, prescribed and subject to light parliamentary scrutiny.

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I hope that noble Lords will agree that the way in which it seeks to do that is most modest. It is simply by providing that any such discrimination will be in accordance with the Immigration Rules. The Immigration Rules are not legislation. They are provided for in Section 3 of the Immigration Act 1971. A statement of them has to be laid before Parliament. They can be readily amended. Therefore, one has all the advantages to which the noble Lord, Lord Bassam of Brighton, referred on Report when he said that the rules must be transparent and public. They will be transparent and public if they are in the Immigration Rules and there will be some accountability to Parliament by the fact of them being in the Immigration Rules. I hope that noble Lords do not think that I am being too feeble in not pressing for them to be in proper subordinate legislation.

I quite understand the need for flexibility and, perhaps, speed in this area. I hope that not only will this very modest amendment be agreed to, but also that the Government will find some other mechanism to ensure that there are adequate safeguards against abuse of this discretion. I have not sought to complicate or lengthen the debate by inventing such safeguards myself. If the Minister felt that there was any merit in that, that would be most welcome. I beg to move.

Lord Hylton: My Lords, in the context of this amendment, I wonder whether the Minister would consider whether something could be written in at a later stage to indicate that, in immigration matters, humanitarian and compassionate reasons may exist for exercising some discrimination, and similarly that in asylum matters the 1951 convention may need to be applied in a similar spirit?

Lord Bassam of Brighton: My Lords, this is now a familiar debate. We fully understand the concerns voiced by the noble Lords, Lord Lester and Lord Hylton. We are obviously concerned to make sure that we get this area right. We believe that, in general, we have had the right approach throughout our debates and discussions.

However, we are aware of the particular concern in relation to the exemptions provision regarding discrimination on grounds of ethnic origin. As I have explained on a number of occasions, the exemption as currently drafted will only permit discriminatory activity required or authorised by legislation and would safeguard Ministers' personal decisions taken in terms of legislation.

Immigration staff operating those arrangements will do so in strict accordance with instructions which will, as far as practicable, be available for public scrutiny. I appreciate that, as the noble Lord, Lord Lester, said in his earlier comments, that is extremely important and it is a matter that we, in government, intend to look at more closely.

The noble Lord has made clear his view that Parliament should approve the arrangements for necessary and legitimate discrimination by immigration staff. That is the

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open objective behind the proposed amendment, which is intended to require lawful discrimination on grounds of nationality or ethnic or national origin in the exercise of immigration functions in accordance with the Immigration Rules.

My right honourable friend the Home Secretary and I recognise and fully understand the noble Lord's concerns. We are currently giving those matters detailed consideration. It is too early to say whether the noble Lord's proposed amendment would provide a satisfactory and comprehensive solution to the concerns that he has raised, quite understandably. The Government would be grateful if the noble Lord were prepared to withdraw the amendment pending the outcome of their further consideration of this matter and the issue raised by the noble Lord, Lord Hylton. That may enable us to make some progress in this area of policy.


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