Political Commentary

Who goes home?

ratrick Cosgrave

, the House of Lords last week a judgement iiI11,;s made (by Lords Wilberforce and Pearson,

Ith the concurrence of Lords Hodson and Kilt0 „tandon, Lord Salmon dissenting in two of Id ;fie three cases being heard) rendering liable

'0 detention and removal under the 1971 Imo rseigration Act Messrs Azam, Khera and all three of whom entered this country Ii egally. The case of Mr Sidhu need not deli eaein us: he was refused admission both in Deli nTher 1967 and in January 1968. Thereafter

'e entered Britain clandestinely. To do so fter •

„ refusal is to breach the 1968 ImmigraAct and clearly to render oneself liable `.? deportation. Under pre-1971 immigration ;,Hiltrol legislation an illegal immigrant who ",,ati not first tried to enter legally could be im•

"Ported only if he was caught within a l

ted period — twenty-four hours after the lua2 Act (and even then only in circumsLribed conditions) or six months after the ;,w08 Act, but then only after recommendation

S court which found him guilty of the of

,e,nce (created by the 1968 Act) of avoiding ;He scrutiny of an immigration officer. Under the 1971 Act, however, such an illegal immigrant can be removed without time limit;

flt1 the Act has now been adjudged to have a

etroactive effect.

„_Mr Carr immediately acted to assure every"tiY that he would treat any cases arising nder this judgment in a humane way. While doubted that he himself would do so,

"Le question remained whether any successb°r Home Secretary could be relied upon to ehave with compassion. Lord Salmon, ingeed, expressed concern about the amount of ?ower thus derogated to the executive, and :tated that he did not share the view that 'nch power was without danger because "the ecutive can be relied on not to use it or, if

eY do, to use it fairly." The existence of a possibly excessive

eaecutive power is thus the first matter of e„?ncern to which the judgment gives rise. But 'Pere are two others. The first is that the 1971 7ct is now clearly seen to breach a principle \°r perhaps one should say a strong in

cli • r. nation, since breaches have been made be

',ore) of English law opposed to retrospective 'egislation. The second is based on the suggestion, made most forcefully in an exekePtionally cogent -and well-researched article Mr Derek Humphry and the Insight team ,In the Sunday Times last Sunday, that the nvernment deliberately concealed the retro 13,ective element in the Act from both Houses ?' Parliament as it passed before them. A cer`.ain measure of support was given to this :Uggestion by what Leird Salmon said in his 'Peech of dissent. He "expressed concern that the draftsmen of the 1971 Act should Pave chosen to achieve its retrospective ef„!ct through a labyrinth of verbiage Which 1ght well have been as perplexing to many 'those who had to consider it in Parliament it undoubtedly was to those whom it might ave deprived of their constitutional rights." Mr Carr has defended himself and his col's"agues against the charge of concealment by :„Ying that the lords' judgment "confirmed 'at we believed the law to be and what we tended it to be." Mr Humphry suggests that, le the Act itself was a creation of the Con'rvative Party's commitment to tighter imIlligration controls, the " progenitor " of the rae,Lrospective provision was the Immigration 0"fou Nationality Department of the Home fice and that ministers "who might have spotted the dodge were heavily involved with the Government's other broadside, the Industrial Relations Act." The burden of this contention is that ministers were made fools of by civil servants. "We have good reason to think", says the Sunday Times, "that the best lawyer in the Government, Sir Geoffrey Howe, did not study the Immigration Bill until it was too late." Yet, in another part of the article the authors say that "Those responsible for the Bill — Conservative Party Central Office advisers, civil servants and ministers — did know of its effect."

Aside from the elementary failure to distinguish between Conservative Central Office and the Conservative Research Department, there is a deeper confusion in this argument, between knowing and not knowing. Certainly, from at least the middle of 1969 no Tory Party adviser was in any doubt about, or tried to conceal from inquirers in any way, the fact that new immigration controls would have a retrospective effect on illegal immigrants.

So basic, indeed, was this knowledge to any understanding of Conservative immigration policy that when Mr Maudling said, on March 8, 1971 that "It is enormously important to reassure the immigrants already here that they will suffer no loss of status under the Bill . . . ', a statement taken by Miss Mary Dines in Race Today (May, 1973) to constitute an assurance that there would be no retroactive elements in the Act, he automatically took his assurance to exclude illegal immigrants. If he was not taken up on that point, and if the phraseology of the Act was not challenged on its passage through the House, it was because nobody wanted to challenge it. (Certainly Lord Wade made something of the matter in the Lords, but he did not pursue his ar guments to their conclusion). The Commons' committee on the 1971 Immigration Act was one of the most intellectually acute Parlia ment has seen for many a day, and ministers were frequently humiliated during its pro ceedings. It was not a committee that let anything escape which it wanted to pin down. Unless they were visited with an in competence which escaped most observers, any members of that committee who let slip retioactive provisions which they opposed did so because they did not have the political courage to make a stand; and that judgment, perforce. indicts Labour members who, if there are any, now take a different view. Indeed, it indicts the opposition as a whole, if it now opposes the view of Lord Wilberforce and Mr Carr.

The more fundamental point is whether the Government was right or wise to introduce legislation with a retrospective effect. It is not

the first time a conservative government has done this, as shareholders in Burmah Oil know to their cost. But the plain fact of the matter is that the dislike of English law for retroaction ran into the dislike of English law (asdescribed In the House the other day by Sir Derek Walker-Smith) for allowing a legal right to arise out of an illegal act. It is true that this inclination, too, has often been breached, but the existence of the possibility of blackmailing illegal immigrants who might be sent out of Britain under the new Act (the danger usually referred to by such as the propagandists of Race Today) is not in itself a sufficient reason for overthrowing it in this instance. That it is not is because there are probably very substantial numbers of illegal immigrants in this country; and if ministers have been guilty of concealment in respect of either Parliament oi.puliliC it is in the acessively low assess-ment of these numbers on• their part.

Nonetheless, because of the dangerous sensitivity of the subject, and because of a very deep desire to deal with it humanely, ministers have determined to handle individual cases with generosity. This desire is the source of the large executive' powers reserved under the legislation. No front bencher on either side of the House of Commons wants to be compelled by another sudden explosion of public feeling over any new revelation of abuse or apparent abuse of the immigration rules to introduce yet another emergency act of control. Hence the residual powers to accept or refuse an immigrant who has yet been given a specific right, under any of the Acts since 1962, yet to enter Britain, have been, in the 1971 Act, extended, so that the executive can respond flexibly to any situation Which arises.

The intention, then, is a praiseworthy one. The misfortune is that the method of enforc ing it which has been chosen merely com pounds the confusion that has marked every attempt by Parliament to legislate on the im migration question. In this area Britain has never yet faced up to the fact that the Empire no longer exists; and hence we have never faced the problem of saying, clearly and unambiguously, who has a right, and who has not, to immigrate to this country. _ Successive governments have failed to state identity and rights clearly, partly for fear of being labelled racialist, partly for fear of creating storms in the existing immigrant community. All this has, in its turn, compounded the vagueness and concealment which have always marked the discussion on the twin subjects of immigration and race relations in Britain. And that, for all that the immigrant communities are now up in arms about the newly revealed retroactive provisions of the 1971 Act, has been of no service to the long term interests of the Commonwealth immigrants already here, who must decide to absorb themselves in this community, and see the world through its eyes, if future racial strife is to be avoided. We need a new codification of immigration law, and a new and pellucide citizenship law, if all the danger attending the presence in this country of an unwisely admitted and substantial immigrant population are not markedly to increase; and any such laws must be severly restrictive, not only of rights, but of executive discretion.