Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

I beg to move amendment 56, in clause 48, page 39, line 3, at end insert—

‘(4A) In this section a person is not considered of good character if they have been convicted of any offence that is triable on indictment.’.

The purpose of the amendment is to explore one of the slightly unclear notions on the face of the Bill by inserting a new subsection (4A). I wish to explore what the Minister means, and what the legislation purports to mean, by “of good character,” because that underlies one of the key points of this part of the Bill on citizenship. I think it would clearly be uncontroversial across the Committee that people who are to be granted British citizenship should be of good character, so it is worth while for us to have a debate on what constitutes being of good character.

The background illustrates why the debate is so important: over the past 12 years under the Government, the number of grants of citizenship is at an all-time high. The number has more or less quadrupled since 1997; indeed, in 2007, the last year for which figures are available, the annual increase was itself 7 per cent. and the number was 164,635. By comparison, only 37,010 people were granted citizenship in 1997.

It is not for the Committee, while debating the amendment, to discuss whether that is a good or bad thing. However, from the tone of everything the Minister has said during our Committee debates and, indeed, since he became the Minister for Borders and Immigration, I imagine that he thinks that percentage is too much and that he is trying to slow down the flow. Indeed, this part of the Bill makes the process more difficult, as evinced by many of the protests that we are getting from people who will find it so.

To some extent, we can regard this part of the Bill as the Government slightly belatedly addressing the fact that the current test and regulations may not have fulfilled all the criteria that the Minister would want—or, indeed, that many others would want. The specific purpose of our amendment is to cover anyone who has been convicted of a serious offence, to ensure that they cannot be defined as being of good character and, therefore, eligible for a grant of citizenship.

A new British passport is granted every five minutes these days—that is what those figures mean in time terms—so we need to be absolutely sure that every one of those new passports goes to someone who will play a positive role in the life of this country. I assume that the Minister agrees that anyone convicted of a serious crime would not be covered under any definition of good character, so our amendment has the wording,

“any offence that is triable on indictment”,

which covers crimes that are triable either in court and indictable, or triable only in a Crown court. It is quite deliberately set at that level so that we exclude summary offences, such as motoring offences. There is always a balance to be struck in such definitions; we are not simply trying to exclude everyone who may have committed what most people would regard as minor offences, but we do particularly want to stop violent criminals.

Violent crime is growing alarmingly fast in this country, and one of the areas of particular resentment is when people discover that a violent crime has been committed by someone who may not have leave to remain here. That has knock-on effects on public confidence not just in the criminal justice system but also in the immigration system, so any move to clarify the position in respect of the commission of a violent crime by anyone who intends to settle in this country and gain citizenship will be an important step forward. To a large extent, I imagine that the Minister would agree. I am not trying to open up any particular controversy with the amendment, I am just seeking clarification about what the Government mean.

Tom Brake (Carshalton & Wallington, Liberal Democrat)

If I understand the hon. Gentleman’s amendment correctly, he is seeking to ensure that applications will not be considered if applicants have been convicted of,

“any offence that is triable on indictment”.

Could he clarify whether that is the same as anyone guilty of committing a criminal offence?

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

Not quite, because, as I have just explained, certain minor offences are not covered by being triable on indictment. I suspect that the whole Committee would agree that they might not wish such things as parking fines, or even minor motoring offences, to be covered. We might not wish automatically to exclude people for ever from obtaining British citizenship for that kind of offence; equally, there will be no controversy about the fact that anyone who has committed a serious offence should not be considered as of good character and, therefore, should not be eligible for citizenship. “Triable on indictment” is the term of art that one can use to say, in essence, that it would catch most people who have committed criminal offences, apart from the most trivial ones. As I said, it is an exploratory amendment and I hope the Minister will agree with it.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

I thank the hon. Member for Ashford for tabling amendment 56 and the hon. Member for Carshalton and Wallington for tabling amendment 54. It gives me the opportunity to explain—

Nicholas Winterton (Macclesfield, Conservative)

Order. May I advise the Minister that I have selected separately amendment 54, which he has just mentioned? There will be a separate debate on that amendment.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

Thank you, Sir Nicholas. I was premature in my thanks to the hon. Member for Carshalton and Wallington. I was simply trying to recognise what I believe to be the good intent behind the amendments, which seek to explore the Government’s intentions.

If you will allow me, Sir Nicholas, I refer the Committee to page 35 of the explanatory notes, which provides the context for clause 48. With the clause, we are moving the existing law on the requirement of good character from the Immigration Act 1971 into nationality law. As I mentioned in our opening sitting, this is part of the jigsaw puzzle that is trying to prepare the way for the simplification Bill. The clause shows the beautiful symmetry of our legislation and I hope that the Committee will support it.

Amendment 56, which was proposed by the hon. Member for Ashford, addresses the understanding and definition of good character. There has been a good  character requirement for naturalisation—not indefinite leave to remain—since the British Nationality Act 1981, which came into force on 1 January 1983. That requirement was subsequently added to by other registration provisions, particularly those in section 58 of the Immigration, Asylum and Nationality Act 2006. The requirement applies to adults and minors over the age of 10. We chose 10 as it is the age of criminal responsibility in England and Wales—it is not the same in overseas dependencies or Scotland, but we thought it was consistent with common sense. There is no definition of good character in the 1981 Act. Thus, there is no statutory guidance as to how the requirement should be interpreted or tested. The amendment is extremely helpful in teasing that out.

Let me explain why we prefer that approach. In considering whether the good character requirement is met, we have taken into account a range of criteria. We would not expect to naturalise a person if they did not respect or were not prepared to abide by the law, if their financial affairs were not in order, if their activities were notorious and cast serious doubt about their standing in the community, if they had practised deceit in their dealings with the Home Office, the Department for Work and Pensions or Her Majesty’s Revenue and Customs, or if they had assisted in the evasion of immigration control. All applicants over the age of 10 are subject to criminal records checks; the exceptions are applications from British nationals to register as British citizens and applications from certain stateless persons. Results from checks against the police national computer are considered, as are Interpol notices. Where applicants are identified as subject to international arrest warrants, the police are advised and extradition is considered.

The policy on criminal convictions has recently been tightened. Until 31 December 2007, the agency applied “clear periods”, as we call them—a set time after which they will be prepared to disregard a person’s conviction. These were generally shorter than the rehabilitation periods set out in the Rehabilitation of Offenders Act 1974. On 5 December 2007, however, the then Home Secretary announced a new policy which came into force on 1 January 2008. Any applications for citizenship received on or after that date are normally refused if the applicant has a conviction that has not become spent under the 1974 Act. It is that read-across that answers the question put by the hon. Member for Ashford.

We would not normally expect to grant citizenship to a person with a conviction that he has not spent under that Act. That includes people who have been to prison and those with non-custodial sentences. There is discretion to grant citizenship to an individual with a single unspent conviction resulting in a bind-over, conditional discharge or relatively small fine or compensation order where the applicant is of good character in all other respects. Typically, it is used for regulatory offences such as a speeding offence.

The amendment seeks to bar from citizenship anyone who has a conviction for an offence that can be tried on an indictment. In my view, the amendment does not consider the purpose and effects of the Rehabilitation of Offenders Act 1974, which meets the point the hon. Member for Ashford is making. The Act provides for a  person’s conviction not to be held against them—for it to become spent—after a specified period, except in relation to certain sentences, including custodial convictions of more than 30 months. As worded, the amendment would catch only indictable offences and also offences that are triable either way—in a magistrates court or a Crown court—because an indictable offence can be heard, in some cases, in either. That does not, therefore, parallel the 1974 Act.

In any event, either-way offences range from unlawful wounding to shoplifting and it is likely that many people convicted of such offences will not receive custodial sentences. Even for offences triable only on indictment, it is entirely possible that a sentence of 30 months or less could be set down by the court. The amendment has the effect of proposing that we disregard the fact that the 1974 Act would currently class such a conviction as having become spent.

From what hon. Members, including the hon. Gentleman, have said, they would not wish to include those whose convictions were spent under that legislation as that would be contrary to the principles of the British justice system. The amendment would preclude many people who have spent offences from acquiring British citizenship and therefore could be described as too punitive. However, I reiterate the point that a person who has a conviction that will never become spent, meaning that they have received a sentence of 30 months or more for their crimes, is not normally regarded as satisfying the good character requirement. It was the intention of my noble Friends in the other place to ensure that people who commit serious crimes do not have an avenue to acquire British citizenship. I can reassure the Committee that that is already Government policy.

As to the associated question that arises from the amendment—should the requirements of good character be established in primary legislation, rather than be at the discretion of the Secretary of State?—we take the view that it is prudent to continue to apply the character test in its current form via the discretion rather than by establishing specific requirements in primary legislation. The reason is that it enables the Secretary of State of the day to continue to exercise discretion in exceptional cases. For example, there might be an applicant for citizenship who had not had criminal convictions but it might be that information held by the police would nevertheless mean that the Home Secretary could not be satisfied that he or she was of good character. Conversely, there might be exceptional circumstances in which the Home Secretary might want to grant citizenship to someone with an unspent conviction. Applying the good character test by way of the existing discretionary powers also gives the Home Secretary the option to overlook minor regulatory offences, such as speeding.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

To put this part of the Minister’s explanation in context, can he give us any idea—I appreciate that it will be rough—of the number of times that the Home Secretary’s discretion has been exercised in the past few years? In particular, how has it been exercised? Is it more likely that the Home Secretary will bar someone who would otherwise be disqualified, or let in someone who would otherwise not be qualified? That information would be helpful to the Committee.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

It is a difficult question. I agree with the hon. Gentleman’s intent on citizenship—I take what he said as a compliment. I can give him some overall statistics. In the period 2003-08, 9,732 applications were refused on good character grounds. Those are total refusals, which does not answer the specific point that he made.

The hon. Gentleman gave figures about the increase in citizenships. Some of that is as a result of our doing things more quickly and better, so the number will flatten out—one should not take the steepness of the slope as a trajectory for the future; it reflects, in part, better processing and is something that, presentationally, we suffer from. On the specific question of how many people are in the former category and how many in the latter, I will have to come back to the hon. Gentleman. It is a very interesting question. If we were to put that rigid criterion, particularly on the former category, in immigration law, it would take away that discretion. There could be a situation whereby a person the authorities had good reason to believe might not be of good character, but who did not have a conviction as described under the 1974 Act, could not be excluded on those grounds, and we would be challenged, in practice, in the courts, including, I suspect, in foreign courts. I do not have official figures on the two examples I have given, I am afraid. I will have to investigate and come back to the hon. Gentleman on that.

I certainly agree with the intent; indeed, I go a bit further. I think that the specific problem—I am not trying to score points on the indictable element—is the twin court approach; it could be a magistrates court or a jury court. Having said that, we believe it is right to define what we mean by good character, using the legislation that is about that—the 1974 Act—and apply that to immigration and allow that discretion. I hope that helps in providing the information that the amendment seeks to draw out.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

I am grateful for that explanation, which is half satisfactory. I appreciate everything the Minister said about the read-across from the 1974 Act and how it is important to maintain consistency there. That is a valid point and I can see why he might regard that as superior to the formulation we have come up with. I note en passant, however, that this may be one of the few times since the Minister took office when he has found something that we have suggested more draconian than what he is prepared to support. There is a small historic footnote to be made here.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

It depends how you use the discretion.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

Indeed so. I was going to come on to the discretion which the Minister has just talked about from a sedentary position, because that is where I am less satisfied. The second part of the explanation he has just given was explaining the legislative basis, which anyone applying for citizenship could look at, could find out about, particularly in the wake of this debate, as a result of which they would know whether they had committed an offence that meant they were not of good character and would not be eligible for British citizenship. It seems that if we are passing laws in this place, that kind of clarity is something to which we should aspire, so that part of the speech was fine. In the first part,  however, the Minister said there were a number of other considerations that—as he put it—“we take into account”. They were all fairly vague: whether there were financial offences or financial difficulties, and so on.

That led in to the Minister’s final point about the Secretary of State’s discretion, which can be applied both ways. The Committee ought to be slightly worried about that. Allowing the Home Secretary and Home Office of the day so much discretion to decide on something as important as whether people are of good character or not, makes me uneasy—particularly as Committee members are seeing no hard and fast rules and criteria that the Home Secretary is obliged to apply. One can imagine periods where Home Secretaries might be encouraged either to be unnecessarily draconian, or unnecessarily lax, for certain groups of people that might have engaged the public imagination. It might go either way, with people saying, “These people must be granted citizenship”, or “These people must not, under any circumstances, be granted citizenship.” The principle of the Home Secretary’s having that degree of discretion about issues as important as not only granting citizenship, but also the formal decision about whether somebody is of good character or not, concerns me. That sort of thing ought to be set down in legislation.

I accept the Minister’s explanation of the objective criteria that had been used since the 1981 Act, and why those may be superior to the objective criteria in our amendment. However, the less objective parts of his explanation should give the Committee some pause for thought because they allow too much discretion to the Home Secretary of the day. I will, with the Committee’s permission, withdraw the amendment, but the debate has been useful because it has given rise to that unease, and I would hope the Minister will consider that for future stages of the Bill.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

I think the question I was unable to answer is important. The numbers will give us a better idea. I will return to that point.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

I am very grateful, and my question was asked partly to elucidate the practical effects of the uncertainty around the edges. However, whatever the numbers are, there is a principle at stake about what kind of discretion Ministers should have in that area, when it is perfectly possible to find objective criteria. There could be criteria that people either pass or fail—that could be discussed openly by the House, be passed into legislation and then be known to everyone involved in the sector—or there could be this pattern of discretion around the edge. Perhaps, as a principle in this kind of decision making, the less discretion, the better. However, I beg to ask leave to withdraw the amendment.

Tom Brake (Carshalton & Wallington, Liberal Democrat)

I beg to move amendment 54, in clause 48, page 39, leave out lines 6 to 11.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

I simply want to draw the Minister’s attention to the debate on the same amendment when it was moved in another place, because I thought that the Minister’s response in another place was completely admirable. Lord Brett said,

“I shall keep my response short, if not slow. A powerful case has been made. I have the brief. The sensible thing is for the Government to reconsider the issue, and I give that commitment”—[Official Report, House of Lords, 4 March 2009; Vol. 708, c. 751.]

When a Government Minister in another place looks at his brief and decides that it is such rubbish that he cannot even bring himself to read it out, I suggest that the Minister should pay heed. I commend the openness and honesty of Lord Brett; while he did not quite put it in the way that I have just done, that is clearly what he meant.

Indeed, as the hon. Member for Carshalton and Wallington has just said, in practical terms there is an extremely powerful case to be made, and I dare say that the Minister will want to address the issue of precedent. That is clearly the genuine issue that the Committee needs to assess—whether this would actually be a way to open the floodgates to large numbers of others of whom the Committee might not take the same view. Certainly, as now drawn, the amendment will affect a small and diminishing number of wholly admirable women and it would, on the surface, appear slightly churlish behaviour by this country to insist on their meeting these tests.

Nicholas Winterton (Macclesfield, Conservative)

The Committee awaits the Minister’s reply with very considerable interest.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

The hon. Member for Ashford has my brief spot on, because the arguments in it about the specifics of the hon. Gentleman’s amendment run to several pages and the argument on the crucial point runs to two paragraphs. He has predicted my response with uncanny accuracy. My noble friend Lord Brett, who brings to the Dispatch Box years of pragmatic  trade union negotiation experience, can spot a good argument when there is one, and it is his privilege to pass the buck in this regard.

However, I have looked at this and the hon. Member for Carshalton and Wallington is right; his argument is, within itself, powerful. I come to our analysis of it. The two words—or the acronym plus word—“ILPA precedent” set alarm bells ringing in the mind of any self-respecting immigration Minister. We fight, if that is the right word, a constant ongoing legal battle over precedents in immigration law. I shall put the background to this on the record, then ask the Committee to consider the way forward.

The Hong Kong (War Wives and Widows) Act 1996, which formed part of the arrangements for the handover of Hong Kong to China, came into force on 18 July 1996. It provides for the discretionary registration as British citizens of the wives, widows and divorcees of men who fought in the defence of Hong Kong during the second world war. A woman would be eligible for registration if she was a resident of Hong Kong, and a recipient of a letter from the Home Secretary confirming that she could settle in the UK on the basis of the man’s wartime service, and if she was no longer married to the man concerned, had not remarried—to avoid the transfer of rights to the new husband, or subsequent husbands.

The 1996 Act is unusual in that it applies only to a very small and finite number of people. It only ever affected, as the hon. Member for Carshalton and Wallington rightly said, a maximum of 53 women. That is the number of woman, for the record, who were actually issued with a letter. A further unique feature of this provision was that, unlike most other applications for citizenship, there was no fee for registration, such was the generosity of the Home Secretary. So those qualifying are treated favourably compared with other applicants.

As has been said, the subject was debated in another place, and in recognition of the particular circumstances of these women, the then Home Secretary indicated that she would be prepared to consider exercising discretion on the application in respect of the good character requirement, should any of these women apply in the future and this issue arose. That statement has force, not just policy intent; so if one of these women wished to apply, and had committed an offence that would prevent her from meeting the good character requirement in normal circumstances—the guidance on the website on those criteria is quite specific—the Home Secretary would be willing to consider overlooking it.

The Home Secretary also indicated that she would be prepared to consider, in exercising that discretion, the caveat that, while we are prepared to exercise that discretion if necessary in these particular circumstances, we do not think it wise to amend the law in this respect. To remove the legal requirement in this case would, we are advised, set a precedent for removing it from other sections, and we think this is an important requirement for potential citizens to fulfil. It is indeed that point that we are concerned about.

Tom Brake (Carshalton & Wallington, Liberal Democrat)

I just wondered whether the Minister was going to come on to what other sections he thought this was going to set a precedent for.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

I am not being evasive, nor am I waiting for inspiration. The advice one generally receives is that, to mention those specific precedents could, in and of itself, set the precedent. It is a Catch-22—

Tom Brake (Carshalton & Wallington, Liberal Democrat)

Indicated assent.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

I am very grateful for the nodding of the head. The hon. Gentleman is at least recognising the point I am making; he is not necessarily agreeing with it. Very helpfully and sensibly, Lord Brett, who has negotiated more agreements than the United Nations in his time—they have stood better as well, in most instances—also had a caveat to the passage that the hon. Member for Ashford read out. He added in column 1095 that the discretion of the Home Secretary would resolve the problem behind the amendment. So he recognised that the problem was there, in his common-sense statement that the hon. Gentleman read out, but he also said the discretion provision would meet the objectives. I hope I have convinced the hon. Gentleman that we support the intent regarding Hong Kong; the discretion is there—the Home Secretary said she would use it, and that is the policy of the Government—without setting a precedent that we fear the amendment could set.

Tom Brake (Carshalton & Wallington, Liberal Democrat)

I did hear the Minister’s explanation. Other members will perhaps also have been entertained by the Minister’s confirmation that making this change might set a precedent that would be relevant to other clauses. He cannot mention those other clauses as mentioning them would set a precedent. The Minister has not entirely elucidated the matter, although I understand his point. It is regrettable that this minor change has not been made; it would have been doing the right thing for a small number of women. However, I understand the Minister’s explanation and therefore I beg to ask leave to withdraw the amendment.