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Because of the complications in drafting the legislation and the difficulties in ensuring that we capture what we want to do and yet keep the common travel area in existence—I shall speak more about that later—we did not complete a draft until the beginning of December and I have written and apologised if that seems slightly short notice. But, because of that, I met recently in the House of Lords with senior representatives from all of the Crown dependencies. It was a very cordial and valuable meeting. I am glad to report that, despite a number of initial concerns, our close engagement with the Crown dependencies resulted in an agreement with both the Isle of Man—which has issued a press release today saying how much it supports the legislation, understands what is behind it and is happy with the MoU—and Guernsey to work towards a memorandum of understanding on the CTA reforms.

The MoUs will clearly set out the policy intentions of the UK in respect of these routes and will make clear that the status of Crown dependencies residents as British citizens will not be compromised; that no British citizen will be required to carry a passport or identity card on these routes; that we have no intention of introducing fixed controls on these routes; and that free movement for the vast majority of those who use these routes will not alter. For these reasons I am convinced that Clause 48 will not change the constitutional relationship between the Crown dependencies and the United Kingdom. That the Isle of Man and Guernsey have now both confirmed support for Clause 48 and for our proposals to work up these MoUs leads me to conclude that they share the same view. I am grateful to both the Isle of Man and Guernsey for their support.



1 Apr 2009 : Column 1114

I am disappointed that the bailiwick of Jersey has taken a different view from the United Kingdom, the Isle of Man and the bailiwick of Guernsey. In his letter to me of 27 March, to which the noble Lord, Lord Goodlad, referred, the Chief Minister is unable to support Clause 48 or the option of working towards an MoU because of the belief that British citizens of Jersey would be treated less favourably than British citizens who reside in the United Kingdom. My firm view, for the reasons I have explained, is that they will not be. I am, however, pleased that Jersey fully supports our policy intention in relation to CTA reform and the Chief Minister has stated in his letter to me that he agrees as a matter of principle with the need for increased supervision on these routes. I am confident that we can build on that agreement and work together to find a solution. I want to answer Jersey’s concerns while proceeding with this change to our legislation, which we believe is crucial for the reasons I have given, and we will continue to engage closely on this issue.

Why do I say that Clause 48 does not change the constitutional relationship? Prior to the Immigration Act 1971, a third-country national coming to the UK from another part of the CTA did not require leave to enter. However, it was possible to alter or abolish this right simply by making a statutory instrument subject to the negative resolution procedure. The 1971 Act provided that, in general, control was not exercisable over the movement within the common travel area, but that Act retained the power to contract or abolish the common travel area by subordinate legislation if that ever became necessary. Under Section 9(5) an island can be excluded from the common travel area if it appears necessary to do so by reason of any difference in the immigration laws of the island and the UK. Therefore, to suggest that the power in Clause 48 to control immigration between the UK and the islands is totally new and a change in the constitutional relationship is incorrect. I asked my officials to look at whether constitutional concerns were raised about Section 9(5) when it was debated. None was, when the question of whether to put it in place was debated under the last Conservative Government. They have not yet found any reference to any such concerns anywhere. We do not believe that the 1971 Act changed the constitutional relationship, and therefore nor does this amendment.

The cross-party Constitution Committee said that the clause had not been informed by any real appreciation of the constitutional status of the Crown dependencies or the right of free movement of the islanders. As an aside, I have great respect for that committee, and when I saw what it had said it worried me. I did a lot of digging around about it because the committee is made up of people who have great depth of knowledge about these issues. But both Guernsey and the Isle of Man have indicated that they support the clause; they clearly do not believe that it is incompatible with their constitutional status.

Jersey does not agree with them. In its letter it refers to the rights of nationals to travel freely within their own country and states that it does not accept that British citizens in one part of the United Kingdom should be treated as if they are foreign nationals. I can categorically say that nothing in Clause 48 allows

1 Apr 2009 : Column 1115

UKBA to refuse entry to any British citizen, whether a Channel Islander or otherwise. It simply enables us to control non-British citizens. I am happy to discuss further the constitutional position of the islands and the need to ensure that we do not undermine that position. It is absolutely not the intention of the Government to do that and we do not do so with this clause. I am willing to look more closely at this issue. As I say, I have great respect for the Constitution Committee. On that basis, I should like to get my department, or the constitutional lawyers, to look at it in more detail than we have already, and if I am wrong in my assessment—I do not think I am—then clearly the clause will have to be reconsidered in the other place.

Despite what I think are the clear and compelling reasons that I have set out for the Government’s inclusion of the clause, I see from looking at your Lordships’ faces that many are unpersuaded. So, if we are thinking of having a vote, what would actually happen? I believe that there are three options open, and I invite noble Lords to think hard and be clear in their own minds which they are advocating.

First, we could abandon our programme to reform the common travel area, accepting not only that we should not increase levels of control activity, when intelligence suggests that that is necessary, but that we should back away from the checks we are already making as there is no proper cover. We are concerned about the latter point, which is why we need the legislation. As I have made clear, I believe that that would be dangerous and irresponsible, and it would make all of us in the common travel area less safe. Is that what critics of the clause would prefer?

Secondly, we could produce an alternative legal approach that differentiated between the legal position on routes from Ireland to the United Kingdom and those between the Crown dependencies and the United Kingdom under the respective control measures that could then be used, which has been the difficulty that our drafters have found. We would then, effectively, have dismantled the common travel area as a single entity. The noble Lord, Lord Smith of Clifton, said, “Haven’t we got rid of that anyway?”, but the answer is no. The common travel area is based on the principle that once a person has been granted leave to enter one part of it, they will not normally require leave to enter the United Kingdom while that leave is extant, provided that they do not leave the common travel area. That will remain the case even when Clause 48 is enacted.

I have already talked about the requirements from the Republic of Ireland about certain controls coming into Ireland. The Irish are clear that having to prove nationality does not abolish the common travel area. The implications if the common travel area went would be immense in terms of Schengen and the border between Northern Ireland and the Republic. We would have a two-tier system. I have rebutted criticisms that Clause 48 abolishes the CTA because I do not think it does. Would those who reject Clause 48 prefer an approach that explicitly did so?

So, effectively getting rid of the CTA is the second option. The third is to stick with the approach that Clause 48 currently takes, strengthening our security

1 Apr 2009 : Column 1116

while preserving the common travel area. I fully accept that we can do more to explain our approach, to reassure our partners with Memorandums of Understanding of the sort that we have under discussion and to work through the constitutional questions that have been raised and to which I am confident there are satisfactory answers. For my part, I am not convinced that there will be any real alternative to reintroducing the current provisions in the other place, and I invite your Lordships to think carefully before seeking to remove what I think is a very necessary provision.

Consequently, while thanking all noble Lords for their interjections, I ask the noble Lord to withdraw the amendment.

6.15 pm

Lord Glentoran: My Lords, I thank the Minister for that careful and determined explanation of where we started from, where we are going to and where we are. I do not want—and, I hope, neither do other noble Lords—to pass the buck to the other place. It may end up that way, but that is not how we should be doing business.

I thank noble Lords from the Constitution Committee for their superbly argued case, which I found enlightening. If only I could be as eloquent as they are, it might help me and other noble Lords.

The Minister has not really answered any of our doubts. I understand his concerns about security. I do not accept the scale of the problem or that there is not a much more focused way of managing this. The Minister, as an ex-serviceman of some standing, knows all about focus on particular targets. As I said in my opening speech, I do not feel that the noble Lord and his officials have really focused on this target. I wish to take the view of the House.

6.17 pm

Division on Amendment 54

Contents 193; Not-Contents 107.

Amendment 54 agreed.


Division No. 1


CONTENTS

Addington, L.
Adebowale, L.
Allenby of Megiddo, V.
Anelay of St Johns, B. [Teller]
Arran, E.
Astor, V.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Bates, L.
Bell, L.
Best, L.
Blaker, L.
Blood, B.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Buscombe, B.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Cameron of Lochbroom, L.
Carnegy of Lour, B.
Cathcart, E.
Chalker of Wallasey, B.
Clement-Jones, L.
Cobbold, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.


1 Apr 2009 : Column 1117

Courtown, E.
Coussins, B.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Hanningfield, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hurd of Westwell, L.
Hylton, L.
James of Blackheath, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jopling, L.
Kerr of Kinlochard, L.
Kilclooney, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Laird, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Listowel, E.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Murphy, B.
Neuberger, B.
Neville-Jones, B.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
Palmer, L.
Pannick, L.
Parkinson, L.
Patten, L.
Perry of Southwark, B.
Ramsbotham, L.
Rawlings, B.
Razzall, L.
Reay, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Slim, V.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stevens of Ludgate, L.
Stewartby, L.
Strathclyde, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Trimble, L.
Tugendhat, L.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Warsi, B.
Watson of Richmond, L.
Wilcox, B.
Williams of Crosby, B.


1 Apr 2009 : Column 1118

Williamson of Horton, L.
Woolf, L.
Young of Hornsey, B.

NOT CONTENTS

Adams of Craigielea, B.
Adonis, L.
Anderson of Swansea, L.
Andrews, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Billingham, B.
Bilston, L.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell-Savours, L.
Carter of Coles, L.
Chester, Bp.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Drayson, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Foster of Bishop Auckland, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
Massey of Darwen, B.
Maxton, L.
Monson, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Moser, L.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Patel of Bradford, L. [Teller]
Pitkeathley, B.
Prosser, B.
Quin, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rosser, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Smith of Leigh, L.
Snape, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Wall of New Barnet, B.
Warner, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Young of Norwood Green, L.
6.30 pm

Amendments 55 and 55A not moved.

Amendment 55B

Moved by Lord Smith of Clifton

55B: After Clause 48, insert the following new Clause—

“Entry otherwise than by sea or air: immigration control

In section 10 of the Immigration Act 1971 (c. 77) (entry otherwise than by sea or air), after subsection (1A), insert—

“(1AB) An Order in Council made under subsection (1) must not include provision relating to immigration control.””



1 Apr 2009 : Column 1119

Lord Smith of Clifton: My Lords, I beg to move Amendment 55B, to which I have spoken, and I wish to test the opinion of the House.

6.31 pm

Division on Amendment 55B

Contents 176; Not-Contents 92.

Amendment 55B agreed.


Division No. 2


CONTENTS

Addington, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Astor, V.
Attlee, E.
Avebury, L.
Barker, B.
Bates, L.
Bell, L.
Best, L.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brougham and Vaux, L.
Burnett, L.
Buscombe, B.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Cameron of Lochbroom, L.
Carnegy of Lour, B.
Cathcart, E.
Chalker of Wallasey, B.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Deech, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Fowler, L.
Freeman, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Hanningfield, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hurd of Westwell, L.
Hylton, L.
James of Blackheath, L.
Jones of Cheltenham, L.
Jopling, L.
Kerr of Kinlochard, L.
Kilclooney, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Laird, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Listowel, E.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar, C.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Murphy, B.
Neuberger, B.
Neville-Jones, B.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.


1 Apr 2009 : Column 1120

Palmer, L.
Pannick, L.
Parkinson, L.
Patten, L.
Pearson of Rannoch, L.
Perry of Southwark, B.
Ramsbotham, L.
Rawlings, B.
Reay, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Seccombe, B.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stevens of Ludgate, L.
Stewartby, L.
Strathclyde, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Tugendhat, L.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Walpole, L.
Warsi, B.
Watson of Richmond, L.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Young of Hornsey, B.

NOT CONTENTS

Adams of Craigielea, B.
Anderson of Swansea, L.
Andrews, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bilston, L.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe,L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell-Savours, L.
Carter of Coles, L.
Chester, Bp.
Clark of Windermere, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Drayson, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Moser, L.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pitkeathley, B.
Prosser, B.
Rea, L.
Rendell of Babergh, B.
Rosser, L.
Smith of Leigh, L.
Snape, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Wall of New Barnet, B.
Warner, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Young of Norwood Green, L.


1 Apr 2009 : Column 1121

6.43 pm

Clause 52 : Transfer of immigration or nationality judicial review applications

Amendment 55C

Moved by Lord Lester of Herne Hill

55C: Clause 52, page 44, line 19, at end insert—

“(4) Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (c. 15) (right of appeal to court of appeal etc.) does not apply in relation to immigration and nationality appeals from the Upper Tribunal.”

Lord Lester of Herne Hill: My Lords, I move this amendment on the basis of the report from the Joint Committee on Human Rights, which is in the Printed Paper Office and gives useful background, most of which I am not going to weary the House with because everyone in the House can read at least as well as I can. The background begins on page 9 at paragraph 1.22, under the heading “Judicial review and access to court”. I recommend a reading of that background in order to understand the issue that this amendment and others in the group raise.


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