Yesterday, I published an article entitled, “The UK’s Dangerous and Unacceptable Obsession with Stripping British Citizens of Their UK Nationality,” in which I examined the disturbing trend, under Home Secretary Theresa May, to strip naturalised UK citizens (dual nationals, in other words) of their nationality without any form of due process if she suspects that they have done something “seriously prejudicial” to the UK.
In particular, my article covered Theresa May’s latest plan to extend these tyrannical powers to “deprive someone of their citizenship even if that would make them stateless, but only if the citizenship has been gained through naturalisation and the Home Secretary is satisfied that the deprivation is, in the words of a government new clause introduced by her in the House of Commons, ‘conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom.'”
The words above, by Baroness Smith of Basildon, are from a debate in the House of Lords on March 17, 2014 on Theresa May’s proposals, which are contained in Clause 60 of the proposed new Immigration Act (and entitled, “Deprivation if conduct seriously prejudicial to vital interests of the UK”). Baroness Smith also noted, “Currently, the law allows the Home Secretary to deprive a person of their citizenship status for two reasons: first, if the person acquired it using fraud, false representation or concealment of a material fact; or, secondly, if the Home Secretary is satisfied that, in doing so, it is conducive to the public good and that the person would not be left stateless as a result. Clause 60 seeks to amend the second condition to, in the words of a Minister in the other place, ‘ensure that individuals who are a serious threat to this country cannot retain citizenship simply because deprivation would leave them stateless.'”
Baroness Smith proposed an amendment to Clause 60, Amendment 74, seeking to restrain the Home Secretary unless she applies to a court for permission to make an order, explaining “how the deprivation is conducive to the public good and how the person, while having that citizenship status, has conducted himself or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, and of the islands, or any British overseas territory.”
I am posting below the entire debate on Clause 60, as I believe it is of huge importance to the very nature of citizenship in the UK, establishing, in particular, a two-tier system of citizenship in which those who were not born here can never regard themselves as safely and inviolably protected (see this article in the Guardian by the author Kamila Shamsie for more on those fears), and I also worry, as any sensible person should, that if this legislation stands, the government’s next step will be to deprive any citizen born in the UK of their nationality when they travel abroad and Theresa May and the security services regard them as suspicious.
I was pleased to see a number of peers asking pertinent questions not only about the fundamental injustice of Clause 60, but also pointing out how, in a variety of ways, it would be unworkable in reality. However, I was disappointed that the Lords failed to pass Amendment 74 (or any other amendments proposed), or to get rid of Clause 60, and I remain disgusted with the 297 MPs who voted for Clause 60 in the House of Commons at the end of January, when just 34 MPs voted against it.
As I mentioned in my article yesterday, “the only hope now, legislatively, is that many of the Lords’ concerns will be ‘discussed at a meeting ahead of report stage,’ as Alice Ross of the Bureau explained in an article compiling her live tweets of the debate. I hope at that point there will be further publicity, and further opportunities for this dreadful development to be challenged and, eventually, overturned.” In the meantime, it is, I believe, worth writing to Baroness Smith to ask if there is anything concerned citizens can do before the report stage.
Baroness Smith of Basildon: My Lords, Clause 60, on deprivation of citizenship, is very important and far-reaching. There are two groups of amendments on this issue. I shall make my main remarks on this group and make a couple of comments on the second group.
Clause 60 amends Section 40 of the British Nationality Act 1981 to enable the Secretary of State to deprive someone of their citizenship even if that would make them stateless, but only if the citizenship has been gained through naturalisation and the Home Secretary is satisfied that the deprivation is, in the words of a government new clause introduced by her in the House of Commons, “conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom”.—[Official Report, Commons, 30/1/14; col. 1026.]
Currently, the law allows the Home Secretary to deprive a person of their citizenship status for two reasons: first, if the person acquired it using fraud, false representation or concealment of a material fact; or, secondly, if the Home Secretary is satisfied that, in doing so, it is conducive to the public good and that the person would not be left stateless as a result. Clause 60 seeks to amend the second condition to, in the words of a Minister in the other place, “ensure that individuals who are a serious threat to this country cannot retain citizenship simply because deprivation would leave them stateless”.—[Official Report, Commons, 11/2/14; col. 259WH.]
I question the word “simply” in that context. It would be helpful if the Minister could clarify whether there are any other areas of law in which we have different categories of citizens.
I know that everyone in your Lordships’ House without exception wants to do all they can to protect citizens from a potential terrorist threat and activity at home and abroad, and, indeed, recognises that we have international obligations in this regard as terrorism is a global threat. The Home Secretary, Theresa May, is aware of the seriousness of the issue before us today. She recognises that depriving an individual of their citizenship “is one of the most serious sanctions a state can take against a person”,—[Official Report, Commons, 30/1/14; col. 1038.] and we agree with that. This clause was tabled just 24 hours before Report stage in the other place, with no prior consultation, let alone explanations or agreement, and a very truncated debate. Parliament has had little opportunity to scrutinise this measure, which has massive consequences and implications both for the individual and for the state, and for other countries.
We have tabled Amendments 74 and 79, which add a permission stage. Effectively, the Secretary of State would be required to seek permission from the court before making an order. I readily admit that the drafting is not perfect; we are not wedded to any specific wording here. However, we need a response from the Minister on the principle of oversight.
Clause 60 is a response to the judgment about Hilal Al-Jedda by the Supreme Court, which clarified that the Secretary of State could not withdraw citizenship from an individual if this would leave them stateless. For the Government to do so would lead to one of two scenarios. The first is that a former citizen would remain locked in the UK, unable to leave, work or receive any support, but the Government would still have obligations to that individual. In January last year, the Department for International Development published guidance on how a stateless person could apply for leave to remain in the UK.
The second scenario is that the former citizen, whom the Government consider to be engaged in actions prejudicial to UK interests, is left stateless in another country. I would be very interested to know what discussions the Government have held on this proposal with other countries, such as the USA or Germany, which have not given themselves the power to make other citizens stateless. The fight against terrorism is international and global. What are the implications for national and international security of allowing terror suspects to be loose and undocumented in whatever country they happen to be in when their citizenship is revoked? A number of issues arise from this clause. First, what will be the process for making an order under this clause? The Minister, James Brokenshire MP, has said that the process will “involve extensive research and understanding of an individual’s previous behaviour, any potential human rights issues and the threats that they pose to the UK. Officials from the Home Office and other Departments are consulted before the information is reviewed and a final decision made by the Home Secretary”.— [Official Report, Commons, 11/2/14; col. 259WH.]
The information provided by the department also suggests that the welfare of any children involved would be a consideration. Can the Minister provide further information or clarification on the specific grounds the Secretary of State would consider? Will the Home Secretary be able to take political considerations into account? Will she consult her Cabinet colleagues, for example, or will this decision be made on the advice and information from the security services? Obviously, with such a serious issue, there must be absolute certainty about the decision-making criteria. Accurate, factual information and risk assessments are of paramount importance.
I wonder whether the noble Lord could help me understand a particular case from 2011, which was brought to my attention by the Bureau of Investigative Journalism. It is the case of Y1. The witness statement from the deputy director of the Office for Security and Counter-Terrorism, on behalf of the Home Secretary, stated that the security service considered that Y1 “presented a substantial risk to UK national security”.
He added that there was clear information that depriving Y1 of British nationality was conducive to the public good. However, he also stated that although they considered that Y1 presented such a risk, they also believed that “his detention had reduced the immediate risk he posed and judged that there may be more options for controlling that risk if Y1 were in the UK”.
That is a direct quote from the witness statement that was presented to the court. I read that as the security services wanting Y1 to be in the UK so that they can monitor his activities. They would be unable to do so if he were outside the UK and stateless. Following Y1’s appeal to the Special Immigration Appeals Commission, the judges reported that: “Ultimately, the Home Secretary rejected the advice of the Security Service on the ‘management’ issue. Following consultation with other senior Ministers, the decision to deprive” him of citizenship “was made”.
I do not raise this to question the Secretary of State’s judgment, but I seek clarity on the process. That is why I added my name to the amendment in the next group, tabled by the noble Lord, Lord Pannick. Amendment 79C would require guidance to be published on the process to be followed. It seems to me that we need far more information on how the Secretary of State will make a decision.
Secondly, I turn to the definition of the phrase “seriously prejudicial”. In the Commons, Theresa May replied to this question by saying that it would “be understood”. The Minister has provided more detailed information but where would that higher test of “seriously prejudicial” be set out and who will apply it? The Government have also said that it would apply to a very limited number of people and that the power would be used sparingly. James Brokenshire said that “only a small number of individuals are deprived of their citizenship … since 2006, 27 people have been deprived under these conducive powers”.—[Official Report, Commons, 11/2/14; col. 260WH.]
I have never considered that few people being affected by a power makes it less important to consider its implications. It would be helpful to have far more precise information. How many of those 27 people were in the UK when their citizenship was withdrawn and they were made stateless? How many were outside the UK at the time the decision was made? That is an example of the kind of information that it would be helpful to have to understand a little more about the Government’s motives and reasoning behind this clause.
Again I am grateful to the Bureau of Investigative Journalism, which has identified 15 of those cases where the person was overseas at the time. It has also shown that the use of these powers has gradually increased under this Government. Until about 2010, there was roughly one case a year in which someone’s citizenship was withdrawn. Since then the number of cases has increased to five in 2010, six in 2011 and eight in 2013. I do not know whether the Minister can comment on that.
When citizenship has been withdrawn from citizens who are overseas, is the country which admitted that individual in good faith on a British passport consulted or advised at any stage or even notified after the withdrawal of citizenship? When our amendment was discussed in the Commons, the Home Secretary, said: “I will be willing to consider them and, if necessary, address them further in another place”.—[Official Report, Commons, 30/1/14; col. 1040.]
“Another place” refers to your Lordships’ House. We are grateful for letters and meetings that we have already had but would like far greater engagement from the Minister today.
In response to the Constitution Committee’s report, the Government said that one problem with a permission stage — the process that we propose — was that “it is unclear how the court could act impartially”, if any appeal, if not already given permission, was brought back to them. That is slightly ironic given that the Minister has been arguing the opposite in relation to the new administrative review process under Clause 11 on visa appeals. That review would be by the same body, which under that clause would be the caseworkers. He does not consider that that would create a conflict. Therefore, I am unclear why the response to the Constitution Committee is that the courts dealing with the issue would create a conflict. The Government were arguing against that in principle and are now arguing for it in principle.
The Government have confirmed that a person deprived of their citizenship has a full right of appeal and that grounds for appeal would include both the legality of the action and the merits of the Secretary of State’s decision. James Brokenshire has also confirmed that, before issuing a deprivation order, the Secretary of State must notify the person of the decision to make the order, set out the reasons for it and tell the person of their right to appeal. Will the Minister clarify how that will work when the person is outside the country? I believe that, at Second Reading, my noble friend Lady Kennedy gave a very powerful and disturbing case about a person who did not receive that notification and could not be contacted by those who had interceded and had seen the letter from the Government. What happens if the individual cannot be contacted?
In today’s Independent, there is a report about a young man who did not receive any notification because he was out of the country. It was only when he got to the airport to return to the UK that an official from the UK Government was there to ask for his passport.
The Government must have known that he was out of the UK to be able to meet him as he was trying to leave the country he was in at the time. I would like to know the mechanics, how they work and how the Government intend them to work if a person has a certain amount of time in which to appeal but does not receive, or know of, the letter within that time. What would happen to the family or dependants of someone who has been deprived of citizenship? Again, in response to the Constitution Committee, the Minister said that the Government would not take deprivation action against family members on the basis of their relationship with the person being deprived of citizenship. However, the question goes wider than that. What would happen to any child left behind in the UK?
I turn now to what happens to those who have had their citizenship removed. This is important because we are dealing with people whose activities the Government say are of concern to us, or who may be a danger. The Government have clarified that this power could be used against people whether or not they are in the country, and whether or not they could acquire another nationality. I have been reading the comments from James Brokenshire, the Minister in another place, and I still remain somewhat confused. He said that the Government “would seek to remove that individual from the UK once they have acquired another nationality”.—[Official Report, Commons, 11/2/14; col. 261WH.]
What happens to those who cannot acquire another nationality? How can we remove somebody who has no passport, no travel documents and no country to go to? Where would they go, and what would happen if they then stayed in the UK? James Brokenshire said, in the event that they remained in the UK, that they could be granted limited leave “possibly” with conditions, as the UK would have certain international legal obligations under the UN convention. This was expanded on in the Constitution Committee: “We would expect anyone deprived of British citizenship under this new provision to attempt to resolve their nationality issues with their country of origin/birth”.
I think the Minister has to understand that it will not always be possible to do this. However, the Minister said: “This is an entirely reasonable expectation before they could apply for leave as a stateless person. For those living in the UK, we may grant another form of immigration leave, depending on the person’s circumstances”.
Does that not mean that we have people who are stuck here, whom we cannot deport and to whom we have obligations, but no charge has been brought against them? How does that help ensure that national security is protected? What happens if someone is in another state when that decision is taken? What would be the obligations of that state? One of the things that has concerned me is our relationship with those states who then admit somebody in good faith on a British passport, but that passport and that citizenship is then withdrawn?
Guy Goodwin-Gill, a professor at Oxford and an expert on this area, has written that: “Any state which admitted an individual on the basis of his or her British passport would be fully entitled to ignore any purported deprivation of citizenship and, as a matter of right, to return that person to the United Kingdom”.
How would that scenario impact on the UK’s relationship with that state? What discussions would there have been with other countries on this issue? Has there been any consideration of the possible impact on UK passport holders?
In recent years, there has been a renewed worldwide push to encourage nationality laws that reduce statelessness. Will the Minister say how many other countries have powers to make citizens stateless? Which do and which do not? There are many unanswered questions on this clause—on the purpose, the practicality and the impact. I have raised some of those questions today. I hope that the Minister can provide some more information and evidence on the workability and implications on this clause because there are very serious consequences and considerations to be taken into account.
Baroness Kennedy of The Shaws (Lab): My Lords, my noble friend mentioned that I raised this issue at Second Reading with great concern about the consequences. As a result, I have received communications from a number of different, eminent international lawyers. One of them, Guy Goodwin-Gill, is a senior research fellow of All Souls, Oxford, Professor of International Refugee Law at the University of Oxford and a barrister. He and others take a very different view of this from that of the Government. The proposal to allow the Secretary of State for the Home Department to deprive a naturalised individual of his or her citizenship not only risks damaging the United Kingdom’s international relations, but also risks leading to breaches of international obligations and engaging the UK’s international responsibility. Moreover, deprivation of citizenship is not a viable alternative to the responsible prosecution of alleged criminal conduct. Citizenship is not a privilege, but a protected legal status. It is why, for example, the United States, Germany and other countries, would not, under any circumstances, contemplate removal of citizenship. The answer to behaviour that we do not like and consider to be criminal is to prosecute it.
Deprivation, with all its consequences in the modern world, is equivalent to a penal sanction of the most serious kind, but imposed without a criminal trial, without a conviction, without close and open examination of the evidence, and without an effective opportunity of defence, contrary to the requirements of due process. From the perspective of international law, in particular, the re-introduction of previously repealed statutory provisions on deprivation resulting in statelessness is arguably inconsistent with Article 8(3) of the 1961 Convention on the Reduction of Statelessness. The deprivation of citizenship resulting in statelessness will engage the United Kingdom’s international responsibility where it violates the rights of other states. Just as my noble friend has asked, I also ask: what do other states make of our intention to do this? It is inconsistent with the United Kingdom’s other international obligations. As a matter of international law, the United Kingdom has no right to deport a person whom it has made stateless to any state which has not expressly agreed to admit the individual; nor does it have the right to refuse to readmit a former British citizen who has been deprived of his or her citizenship while present in another country. Deprivation of citizenship may engage a variety of European convention rights, and a person deprived of their British citizenship does not cease to be within the jurisdiction of the United Kingdom for the purposes of those rights.
Deprivation of citizenship is potentially inconsistent with obligations accepted by the United Kingdom under many different treaties dealing with terrorist acts, in particular, the obligations of investigation and prosecution in the fulfilment of which every other state party has a legal interest. Deprivation of citizenship will likely expose the conduct of the United Kingdom to close and critical scrutiny whenever a former British citizen seeks international protection from the United Nations High Commissioner for Refugees, or as a stateless person or convention refugee.
I wonder whether the Government have given proper consideration to the implications of this step. The proposal to allow the Home Secretary to deprive citizens of their status, even if it renders them stateless, is ill considered. Recent experience suggests that considerable wastage of public money is likely to result from attempts to defend the indefensible, for deprivation itself touches on just too many legal issues. Considered as an internal act, it is by no means clear what deprivation can achieve that the criminal law cannot. The criminal law is the proper process.
In addition, considerable harm will be caused to the United Kingdom’s international relations. The United Kingdom has no right and no power to require any other state to accept its outcasts and, as a matter of international law, it will be obliged to readmit them if no other state is prepared to allow them to remain. Likewise, and in so far as the UK seeks to export those who are alleged to have committed terrorist acts, it is likely to be in breach of many of those obligations which it has not only voluntarily undertaken, but which it has actively promoted around the world up to now, for dealing with international criminal conduct. We cannot speak with forked tongues on this.
Although the current state of international law may permit the deprivation of citizenship resulting in statelessness, at least in its internal form, certain limitations on this competence none the less follow when the act of deprivation takes on an external or extraterritorial dimension which, as we can see from the number of cases, is how we tend to apply it. We apply it to people who are abroad. In light of the above considerations, this implies among other things that no order of deprivation and no cancellation of passports or documents attesting to citizenship should be permitted with regard to any person not physically present in the United Kingdom, but that is precisely how the Government intend to use it. No person deprived of their British citizenship should be removed or threatened with removal unless another state has formally agreed to admit that person and the person concerned is willing to go to that state. These are the problems that faced President Obama with regard to some of the persons being held in Guantánamo Bay.
No order of deprivation should be made unless full account has been taken of family considerations, including the best interests of any children and their status in the United Kingdom. Due process requires an effective remedy and meaningful review of any order of deprivation. In particular, this requires that an appeal or review has suspensive effect, particularly in view of the concerns which courts have expressed regarding out-of-country appeals.
My client [Mahdi Hashi], the one I referred to at Second Reading, was in another country, and it was his parents who were told to inform him that he had lost his citizenship and had 28 days within which to appeal, even though he was in a place where there was no embassy and no method by which he could easily do it. He crossed a border in order to make the appeal and was immediately lifted by the Djibouti secret police, which, without any due process whatever, kept him in containment, interrogated him and told him that the British authorities had washed their hands of him. Then, deprived of any human rights safeguards or protections, he was handed over to United States agents in Djibouti, who, in turn, interrogated him. Hooded, he was transported without due process, extradition or any other safeguards to the United States of America.
Statelessness matters because it so often renders someone without access to their rights and to the kind of support that people deserve when facing these kinds of processes. If the power to deprive of citizenship is to be retained, it should be limited to those cases in which the individual in question already possesses another effective nationality. They have to have that nationality before the removal of their British nationality. The better solution is that deprivation of citizenship is an entirely inappropriate response to alleged criminality or threats to security given its significant law implications. That is the view signed off by this very eminent professor at Oxford.
I do not know who is advising the Government, but all I would say is that when one rehearses this set of arguments among international lawyers, at home or abroad, people are appalled. We have a system of law of which I am normally proud, but I have to say that this will be a source of shame to all of us if we proceed as the Government intend.
Lord Pannick (CB): My Lords, I have added my name to several of the amendments in this group and have also indicated my opposition to Clause 60 standing part of the Bill. I share the concerns eloquently expressed by the noble Baronesses, Lady Smith of Basildon and Lady Kennedy of The Shaws. It is a matter for considerable regret that the United Kingdom, which has played so significant a role in the battle to reduce statelessness, should now, if the Government have their way, condone the creation of statelessness, even for people who have damaged the public good. Such people should be put on trial, punished if there is evidence of criminal offences and deported if there is a safe country to which they can be sent. However, to deprive them of nationality and thereby render them international outcasts is simply indefensible.
I share the views of the noble Baroness, Lady Kennedy, about the international law implications of what is proposed, but wish to focus on the practical consequences of what the Government are suggesting. Does the Minister accept — this is the crucial question — that if British citizenship is removed from a person in this country on public-good grounds, with the result that they are rendered stateless, it will make it much more difficult to remove that person to another state? Other states are less likely to accept entry by a person who is stateless than one who enjoys British citizenship. Does the Minister therefore accept that, far from contributing to national security, the exercise of Clause 60 against persons in this country will positively damage national security by making it more difficult to remove people who are a danger to the public good?
For this reason, it seems highly likely that Clause 60 will in practice only ever be used against people who are living abroad. Does the Minister agree that, if we strip a person of British citizenship while they are abroad, thereby rendering them stateless, there is a real danger that the country that admitted them temporarily will take urgent steps to remove them back to this country, since it will not wish to be responsible for a stateless person? It is surely highly likely that the United Kingdom will be told by the country where such a person is living that it admitted that person temporarily only because the individual had a British passport. The foreign country will surely say that, now that the passport has been taken away, the United Kingdom can have that person back. There will then be a dispute with the foreign state — and some such states are our allies — about our duty to re-admit someone who was admitted to it only because they presented a British passport that has now been revoked.
The noble Baroness, Lady Smith, has already referred to the opinion of Professor Goodwin-Gill that the United Kingdom would have an obligation in international law then to re-admit such a person. Even if there is a dispute about international law, this Government are plainly going to face considerable pressure from foreign states to re-admit such people to this country. I would be grateful for the Minister’s views on this: does he agree that Clause 60, far from assisting us to deal effectively with people who threaten the public good, will handicap this country, whether the person is here or abroad when the revocation of citizenship takes place?
Although I have added my name to a number of the amendments in this group, which I see as probing amendments, the problem with all of them, whether to secure judicial control or introduce a test of proportionality, is that they will still allow for the removal of citizenship, even though statelessness will result. My current view is that Clause 60 is so fundamentally flawed, so in breach of international law and so damaging in its practical consequences for the security of this country that it should be removed from the Bill. I am happy — and I am sure that noble Lords who have spoken and will speak in this debate are too — to meet the Minister in the short period of time before we return to this subject, as inevitably we will on Report this month, to see whether there is a possibility of making real progress on this very troubling matter.
Baroness Lister of Burtersett: My Lords, Amendment 76A in my name is, like Amendments 75 to 78 to which I have added my name, designed to mitigate the worst effects of Clause 60. However, like the noble Lord, Lord Pannick, and my noble friend Lady Kennedy, my preference is for Clause 60 not to stand part of the Bill, and we have heard very powerful reasons for why it should not do so.
Amendments 75, 76, 77 and 78 were recommended by the Joint Committee on Human Rights; first, to ensure that Clause 60 is compatible with international law obligations. This has been questioned by the JCHR, drawing on the opinion of Professor Goodwin-Gill, which has already been referred to, that the deprivation of citizenship should be “a necessary and proportionate response to the conduct in question”.
The JCHR noted that, in their letter to the committee, the Government said that they did not want “to rule out the possibility that deprivation of citizenship leaving a person stateless is necessary in the interests of the economic well-being of the country”.
The JCHR said: “It is hard to imagine the circumstances in which such a serious measure could ever be necessary and proportionate for such a purpose”.
Will the Minister help us out and give an example of the kind of situation envisaged that would not anyway be covered by terrorism? Economic well-being does not seem to be a reason for taking away someone’s citizenship and making them stateless.
The JCHR said that the best interests of the child should be taken into account and, once again, issued a plea for this to be written into the legislation to ensure that they are “treated as a primary consideration”.
The committee also said that the legislation should not be retrospective, which is “an exceptional step which requires weighty justification”.
We were not persuaded that such justification exists. I note from a Written Answer on 10 February: “There will be no time limit, but the conduct being considered must have taken place after the individual became a British citizen”.—[Official Report, 10/2/14; col. WA 101.]
Amendment 76A complements the JCHR’s amendments and has two purposes. First, it would ensure that the power in Clause 60 could not be used against someone when they are outside the country. This would help ensure compliance with obligations under international law and, as has already been noted, the JCHR, drawing on the opinion of Professor Goodwin-Gill, has questioned whether the clause is compliant. The committee said: “We would be very concerned if the Government’s main or sole purpose in taking this power is to exercise it in relation to naturalised British citizens while they are abroad, as it appears that this carries a very great risk of breaching the UK’s international obligations to the State who admitted the British citizen to its territory”.
That point has already been made but it bears repetition. Will the Minister comment on this important legal point?
The JCHR also expressed surprise at “the Government’s refusal to inform Parliament of the number of cases in which the power to deprive of citizenship has been exercised while abroad”, and made it clear that Parliament “is entitled to this information in order to assist it to reach a view as to how the new power is likely to be exercised in practice”.
I pay tribute to the tireless briefing that ILPA [Immigration Law Practioners’ Association] has provided to the committee throughout the passage of the Bill, although I fear we have not done it full justice. A freedom of information request submitted by ILPA elicited the information that of five individuals stripped of British nationality in 2010, all were outside the UK. This has to raise alarm bells. Will the Minister give Parliament — and the committee — this information now?
At Second Reading, the Minister assured noble Lords: “There is a safeguard of a full right of appeal”.—[Official Report, 10/2/14; col. 417.]
But how is someone who is forbidden to return to the country supposed to exercise that right of appeal? It will not be very easy. In practice that is probably a pretty empty assurance. What will be achieved apart from sullying the UK’s international reputation, as we have already been warned? Liberty suggests that the clause is based on a security fallacy, arguing that stripping someone of nationality abroad will in no way contribute to security at home. Those who threaten our security do not respect national borders; my noble friend Lady Smith has made a similar point.
The second part of the amendment would ensure that Clause 60 could be used only against individuals who could acquire another nationality within a period of six months. In other words, it aims to prevent statelessness, the seriousness of which we must not underestimate. At Second Reading, the Minister said: “The evil of statelessness is well understood and that is why… so much work was done to reduce it”.—[Official Report, 10/2/14; col. 527.]
As has been said, the UK took the lead in that work but is now siding with oppressive and rogue states that perpetuate the evil of statelessness.
In the words of the Open Society Justice Initiative, which has particular expertise in this area, statelessness is a condition of insecurity and indignity. The UNHCR [United Nations High Commissioner for Refugees] says: “To be stateless is to be without nationality or citizenship. There is no legal bond of nationality between the state and the individual. Stateless people face numerous difficulties in their daily lives: they can lack access to health care, education, property rights and the ability to move freely”.
Essentially, in Hannah Arendt’s memorable words, they lack the right to have rights. Liberty describes it as a “brutal punishment with unique practical and legal consequences”, and that stripping a person of his or her nationhood and forcing him or her into “the obvious cracks in protection created by a state based system of law and international relations is a barbaric and unprincipled response to concerns about our security”.
When the clause was first introduced in the Commons, Parliament was assured by the Home Secretary that the whole point was that the process would apply only in cases where the individual could access citizenship of another country, and it would be open to them to apply for such citizenship. To the JCHR’s surprise — I have lost count of how many times we had to express our surprise in our report — it has since emerged that the scope is, of course, much wider. As the Minister made clear at Second Reading in this place, an individual can be deprived of their citizenship regardless of whether that leaves them stateless.
The amendment would simply make the clause consistent with the assurance given by the Home Secretary to the House of Commons; ILPA warns that that in itself is not sufficient protection because, according to UNHCR guidelines, nationality cannot be a predictive exercise, but at least would take us some of the way. Again, the legality of the clause has been questioned by the Open Society Justice Initiative and Professor Goodwin-Gill, who explains the point as follows: “It could be argued … that once having ‘legislated away’ the right to make a citizen stateless, as in 2002 and again in 2006, the United Kingdom no longer falls within the category of States which, in the sense of Article 8(3) of the 1961 Convention, ‘retain the right’ to deprive a person of his or her nationality, even if it results in statelessness”.
As a non-lawyer, it seems to me that this revolves around the interpretation of the word “retain”. Will the Minister confirm whether the Home Office’s lawyers have seen this opinion and what their view of it is? If he cannot tell us that now, will he write to noble Lords afterwards? This point seems to be rather important. Whatever the lawyers’ response, does he accept that this clause is going to be challenged in the courts very quickly?
In passing legislation, we have to consider the consequences. I have spoken about the consequences for someone out of the country. What about a person who is in the country when deprived of citizenship and who is unable to apply for citizenship of another country? My noble friend Lady Smith has already asked some questions about this. The Government have conceded that it may not be possible to deport them, so they will live a kind of shadow existence in our midst, no doubt bitter and resentful. As Liberty asks, on what basis do the Government believe that this will improve the country’s security?
In those cases where it is possible to deport the person, I can do no better than quote the late Lord Kingsland, the Conservative shadow Lord Chancellor, who in 2002 said: “If we identify someone as a person proposing to commit a serious terrorist offence, for example, surely the obligation is on us to deal with that person. If we simply deport him, we shall be handing on—in my submission, irresponsibly—this terrorist problem to another state which may not have the same capability of dealing with it as we do. It cannot be a proper response to the terrorist threat to refuse to deal with it ourselves. … That would be irresponsible of us”.—[Official Report, 9/10/02; cols. 277-78.]
Can the Minister explain why Conservative thinking has changed since those wise words were spoken? Why do the Government so lack confidence in the criminal justice system and its own criminal justice legislation to deal with this kind of threat? My noble friend Lady Kennedy has already talked about this.
I remind the Minister what his noble friend Lord Bourne of Aberystwyth said at Second Reading: “if the deprivation of nationality leaves them stateless, then I have serious concerns both about fairness and efficacy. It seems neither fair nor effective”.
He went on: “Britain has a proud history of fairness and I believe my country to be better than this proposal”.—[Official Report, 10/2/14; col. 490.]
Again, those are wise words. I do not think that the safeguards to which the Minister referred in his response to the noble Lord, Lord Bourne, did anything to address his concerns on this fundamental point of the consequences of deliberately making a person stateless.
Amendment 76A will go some way to addressing questions raised about lawfulness and the implications of Clause 60 for the UK’s international reputation. The Open Society Justice Initiative has warned that “The UK Parliament’s approval of Clause 60 would send a message to the world that the UK condones the creation of statelessness”, thereby giving a green light to other states—states of which I am sure the Government do not approve. The fact sheet issued by the Home Office states: “This is more a matter of principle than an issue of numbers”.
I agree. For that reason, I believe that Clause 60 should not stand part of the Bill. If it does, it is imperative that the clause is amended along the lines of the various amendments that we are debating this evening.
Lord Roberts of Llandudno: My Lords, I will refer to Amendments 75 to 78 from the noble Lord, Lord Lester. They touch upon important points, including one made in the context of Clause 14 by the noble Baroness, Lady Lister, and myself.
The Government have an obligation to take into account the best interests of any child affected by their decisions. I accept that Amendment 77 must be understood in the light of the reply of the noble and learned Lord, Lord Wallace, to amendments tabled to Clause 14. He stated: “We believe that the children’s best interests must be a primary consideration. … However, it is simply not the case that a child’s best interests will outweigh every other possible countervailing factor, including illegal immigration and serious criminality”.—[Official Report, 5/3/14; col. 1384.]
Amendment 77 seeks to put on the face of the Bill that the child’s best interests should be considered, no matter what the crimes of the parents might be. This remains true.
I support also Amendment 75, which seeks to limit the dangerously broad and vague power that the Home Secretary asks for. The lack of clarity was outlined to me in a Written Answer from the Minister, Lord Taylor, on 10 February, in which he stated: “The Government does not wish to be overly prescriptive about the meaning of ‘seriously prejudicial to the vital interests of the United Kingdom’, as the circumstances of each case will be different. However we intend it to cover those involved in terrorism or espionage or those who take up arms against British or allied forces”.—[Official Report, 10/2/14; col. WA 103.]
He cited terrorism, espionage and taking up arms against British or allied forces as possible specific examples. I hope that all here will wholeheartedly agree that the Home Secretary should be obliged to consider whether the deprivation of citizenship is both a necessary and a proportionate response.
Ultimately, this debate will focus on the finer details of this clause, but we must also take a moment to consider whether the deprivation of citizenship is an appropriate response to alleged criminality or threats to security, given its considerable implications for international law. For this reason, I have put my name to the call made by the noble Lord, Lord Pannick, to oppose the clause in its entirety.
Although I have previously stated that I am not one who understands the law to any measurable extent, I remain a concerned citizen. I am deeply troubled that this provision could allow for the citizenship of millions to be removed, with slim chances of appealing.
Let us not forget the judgment of Chief Justice Warren ruling in the United States Supreme Court case of Trop v Dulles in 1958. He said that “use of denationalization as a punishment” means “the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture”.
I hope that the Minister will take these comments to heart in replying to the Committee.
Lord Macdonald of River Glaven: My Lords, if Clause 60 operates in accordance with the Government’s intentions, it is bound to increase statelessness in the world. The noble Baroness, Lady Lister, has already reminded the Committee of the words spoken by Hannah Arendt many years ago, that statelessness deprives people of the “right to have rights”. It brings about a bleak, hopeless status, or rather a complete lack of status, that the British Government should have no role in encouraging, first, because of the positively terminal impact that the imposition of statelessness is bound to have on the ability of the rightless to function in a way that is even remotely human in the modern world and, secondly, because it is clear that such an imposition as a policy measure can have no sensible part in a co-ordinated international effort to combat security threats. In fact, it appears to be the antithesis of such an effort, even in circumstances where it is precisely co-ordinated international effort that we need.
In fact, the unilateral imposition of statelessness is very likely to be directly unhelpful to those efforts because it carries with it the very real risk of breaching the United Kingdom’s international obligations to a country which has admitted a person on the strength of their lawful possession of a United Kingdom passport. Of course, such a country would absolutely have the right to return an individual directly to the United Kingdom, and what then? As the JCHR has observed, the United Kingdom would appear to have no absolute right under international law to require other states to accept its outcasts. In my view, therefore, this proposal is not only ugly in the sense identified so many years ago by Hannah Arendt; it not only associates the United Kingdom with a policy beloved of the world’s worst regimes during the 20th century; but it threatens illegal and procedural quagmire hardly compatible with the comity of nations, still less with solidarity between free countries in the face of terrorism.
Lord Brown of Eaton-under-Heywood (CB): My Lords, I, too, have a fundamental problem with this clause. It has been suggested that it was added late to the Bill and designed to overcome the Government’s defeat in Al-Jedda, which was decided by the Supreme Court just last October, but in fact Clause 60 goes substantially further than merely reversing that decision.
The argument in Al-Jedda was as to the scope of Section 40(2) of the 1981 Act as that had been substituted in 2006. Section 40(4), as substituted, read: “The Secretary of State may not make an order under subsection (2)” — allowing him to deprive someone of citizenship if satisfied that the deprivation is conducive to the public good — “if he is satisfied that the order would make a person stateless”.
Having been granted British nationality, Mr Al-Jedda had lost his Iraqi citizenship, but it was said by the Secretary of State that he was entitled to regain that Iraqi citizenship on application as soon as he lost his UK citizenship. The court assumed that that was so, but it decided that the clear wording of Section 40(4) still prevented the Government from making him stateless, even in the short period until he chose to apply to regain Iraqi citizenship. What the Government needed—and could by legislation have achieved, pointed out Lord Wilson, giving the judgment of the Supreme Court in the case—was to have added to Section 40(4) the words, “in circumstances in which he has no right immediately to acquire the nationality of another state”. Had those words been added, he would have been stateless merely for as long as it took him to apply to regain some other citizenship.
I am rather more sceptical than some others among today’s speakers as to the strength of the advice of Professor Goodwin-Gill as to whether the clause would actually involve the United Kingdom in a breach of international law. The very recent report of the Select Committee on the Constitution on the Bill, published only on 7 March, suggests that there would probably be no such breach, but I am in the fullest measure in agreement with others who have spoken that the proposal would in fact involve the United Kingdom taking a serious retrograde step, deeply damaging to our international reputation. It is a shocking example to other states, which ordinarily are readier than we are to make such a radical departure from the consensus as to proper international human rights conduct. Lord Wilson, in giving the Al-Jedda judgment, referred in paragraph 12 to “The evil of statelessness” and spoke of the “terrible practical consequences” that flow from it. Some of those practical consequences have been outlined by other contributors to today’s debate, and some are suggested by the Select Committee on the Constitution in its brief report.
Even assuming, contrary to the suggestions of many, that such a clause could ever operate to enhance the security of this nation, there is, I respectfully suggest, altogether more to lose than to gain by the clause. If the Government want to follow Lord Wilson’s suggestion of simply repairing what may have thought to have been an omission from the earlier legislation, let them do so. Essentially, that would be the result of accepting Amendment 76A. Let them, if they wish, go that far, but certainly let them not to go to the full width of the proposed new clause.
Baroness Hamwee: My Lords, this afternoon’s speeches have reassured me that I was not misreading the clause when I ended up, time after time, in confusion — not just as to the principle, but as to the point. I would sum up my confusion with three questions to myself. If someone is stateless, it seems he may be allowed to remain in the country, so how is the threat diminished? Indeed, is not any threat increased because of the reaction of the individual and his community against the state’s action? Secondly, what happens to his dependants — are they not likely to become more of a burden on the state? Thirdly, is this one of those occasions when neither Parliament, concerned with the principle, nor the individual, at the sharp end of the practice, is able to challenge the decision — one of those occasions of “If you knew what I know”? We are not thought police, and I was reassured when I read in the clause a reference to a person having “conducted” him or herself in a prejudicial manner — but of course we cannot know about conduct any more than thought.
Like the noble Baroness, I read the report in the Independent today and I thought it a clear example of the impact on someone left stranded. I think he was served with the decision when he was transferring between planes: he was part way — as he would have said — home, and had to return to, I think I am right in saying, Waziristan. However, he was stranded: separated from his community and perhaps family — I do not recall — in the UK, but regarded almost as an outlaw, and, as he put it, in danger from those in Pakistan and Waziristan who regarded him with considerable suspicion. It is a very disturbing story.
Lord Taylor of Holbeach: My Lords, this has been a very thorough debate on a clause which, as the noble Lord said, we owe it to discuss thoroughly.
I start by adding some further perspective to the debate on the deprivation of citizenship. The measures in the Bill to deprive someone of citizenship can be used only against someone who has chosen, as an adult — not as a child — to naturalise as a British citizen. When choosing to seek British nationality they will have taken an oath, or sworn allegiance, to Her Majesty, and pledged their loyalty to this country. Despite this —
Baroness Kennedy of The Shaws: I know it is early in the Minister’s answer, but can I be clear: is he saying that this will not apply to persons who were naturalised when they were under 18?
Lord Taylor of Holbeach: It will not apply to people under 18. Such people are not able to apply for naturalisation; they can gain British citizenship through registration — in effect, through their parents’ presence in this country. Rather, this amendment to the existing law applies to people who have sought naturalisation. As I say, they pledge their loyalty to this country. Despite this, a small number of these individuals have chosen by their conduct to betray the values and laws of their adopted country. Therefore, in my view, it is only right that the Home Secretary can, in seeking to protect the security of the UK, deprive them of that adopted citizenship, and expect them to reacquire, or to acquire, their former citizenship of another country.
I remind the Committee that the Government already have the powers to deprive citizenship. Such powers have been operated by successive Governments. Listening to the debate at certain times, I got the feeling that the argument was that no Government should have the power to deprive citizenship. However, the clear argument in these amendments is not on that case but on whether the exceptional case of statelessness should be an exclusion from the Government’s powers in this pre-existing legislation.
These powers have their origins in legislation dating back to the First World War, when provision was made for the revocation of citizenship if a naturalised person was suspected of treasonable activities. Section 40 of the British Nationality Act 1981, which has been cited, allows the Home Secretary to deprive British citizenship in two scenarios. The noble Baroness, Lady Smith of Basildon, mentioned them. The first is where the person acquired it using fraud, false representations or concealment of a material fact, which essentially means that they used deception to obtain citizenship for which they were not eligible. In these cases a person may be left stateless. Are noble Lords arguing that they should not be deprived of citizenship in such cases?
The second scenario is where the Home Secretary “is satisfied that deprivation is conducive to the public good”, and that the person would not be left stateless as a result. It is the second of these powers that Clause 60 seeks to amend by returning our position on deprivation action to that which existed as recently as 2003. These powers are provided for and permitted under international law by virtue of the UK’s declaration to the 1961 UN Convention on the Reduction of Statelessness and the domestic legislation that existed at that time. These powers are provided for and permitted under international law.
Baroness Lister of Burtersett: The Minister may be about to come to this point, in which case I apologise. However, I referred to the legal opinion of the Open Society Justice Initiative and Professor Goodwin-Gill. That raised a question over this whole matter and whether, the time having passed, we have in fact retained that power.
Lord Taylor of Holbeach: I would say that the Government’s position is that we have. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, seemed to concur with that opinion. However, I was grateful for the noble Baroness raising that issue and I will take note of what she has said.
We should be clear that we are discussing in this context very serious cases where an individual’s behaviour has been seriously prejudicial to the UK’s vital interests. That is the definition. We expect the person concerned to reacquire the citizenship of another state and in most cases they can. It is not satisfactory that when dealing with such individuals the Home Secretary’s decision is at the whim of the nationality laws of other countries. These cases will be few in number and subject to the most careful scrutiny by the Home Secretary.
I turn to Amendments 74 and 79. It is not in dispute that any individual deprived of their citizenship, either under existing powers or as a result of this clause, would have the full right of appeal regardless of whether they were in the UK or overseas. Grounds for appeal can include both the legality of the action and the merits of the Secretary of State’s decision. Therefore the courts already have an important function in reviewing the Secretary of State’s decision on appeal. I cannot agree that it is appropriate or necessary that the court should have to give permission before the Secretary of State can issue a deprivation decision. Any such procedure would be impractical and out of step with any other immigration and deprivation decisions.
Given that these cases relate to the vital interests of this country, there may well be some urgency to them. We should not underestimate the additional delay and complexity that could be caused by introducing an additional stage of court involvement, particularly in cases which involved closed material.
Amendment 75 is on proportionality. Any decision to deprive an individual of their citizenship is a serious matter. Decisions made under the new power in Clause 60 would be in light of a wide range of evidence, and only after careful consideration of all the facts. Recommendations are ultimately reviewed and decisions made by the Home Secretary. As part of any deprivation decision, consideration is given to the personal circumstances of the individual, as well as the threat to the UK that they pose. The Home Office would adopt the approach from the UNHCR report Preventing and Reducing Statelessness, which asks states to consider “proportionality … taking into account the full circumstances of the case”.
All decisions by the Home Secretary will naturally take into account wider circumstances and the proportionality of any decision.
There has been a lot of debate about whether Clause 60 is consistent with the UK’s obligation under international law. I have tried to set this out.
Baroness Lister of Burtersett: I am sorry to interrupt the Minister, but he seems to be moving on from the question of proportionality. I asked if he could given an example of where it could be envisaged that the economic well-being of the country being threatened might be the reason for depriving someone of their citizenship and making them stateless. The Joint Committee on Human Rights was surprised about this being a possible reason. Can the Minister elucidate with an example of where that might be the case?
Lord Taylor of Holbeach: The noble Baroness will have to allow me to write to her on that issue. The Government have responded to the report of the Joint Committee on Human Rights, so she may find that the answer is in there. If not, I will seek to provide her with that answer.
As I said, Clause 60 is consistent with the UK’s obligations under international law. As I have set out here, and as accepted by the JCHR in its recent report, this clause is in accordance with international law by virtue of the UK’s declaration upon ratifying the 1961 convention and the domestic legislation that existed at the time. There is therefore no question of the clause undermining our international obligations. We are adapting and responding to the threat that the UK faces, but acting within our international obligations. Amendment 76 would be an unnecessary addition to the Bill.
The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Pannick, asked if we were contravening international law by making people stateless. I have given the answer to that. As a party both to the UN Convention on the Reduction of Statelessness of 1961 and the UN Convention Relating to the Status of Stateless Persons of 1954, the UK is obliged to comply with the provisions of those conventions, which we would continue to do. If a person was recognised as a stateless person and inside the UK, they would have — as my noble friend Lady Hamwee rightly pointed out — protection against removal and a right to work and study. Depending on circumstances they may be granted access to public funds and be able to apply for a stateless person’s travel document. Those, therefore, are the facts: we would not seek to ride roughshod over those conventions that we have signed up to.
Baroness Smith of Basildon: I did not intend to intervene until the noble Lord had spoken, but there is a lack of clarity in what he has just said. It does not seem to be the same as what the Minister, James Brokenshire, said in the House of Commons. He said that special consideration may be given, and that if leave to remain or some other kind of leave to be in the country was given, conditions would be attached to it. He mentioned new conditions. Is that the noble Lord’s understanding, or is this something different?
Lord Taylor of Holbeach: I must say that nothing I have said implies that there may not be conditions. They are frequently imposed on people who may pose a threat to this country, and this case is no different. However, I have said that the right to protection against removal would be part of our obligation under the existing conventions, and we would not seek to do otherwise than honour those conventions.
On the challenge made by the noble Baroness, Lady Smith, about the question of deprivation action taking place only in the UK, that is the salience of Amendment 76A. The purpose of the new power is not to target naturalised people who are abroad, but to allow the Secretary of State to take timely action against individuals, whatever their location at the time the decision is made.
However, it is a fact that in some cases key information comes to light when a person is outside the UK. Indeed, often travel abroad to terrorist training camps or to countries with internal fighting is the tipping point — the crucial piece of the jigsaw — that instigates the need to act, given the potential danger that those individuals would present on their return to the UK. The Home Secretary therefore needs to be able to determine the most appropriate response and timings to deprive a person of citizenship, regardless of whether they are inside or outside the UK.
Lord Pannick: Can the Minister give the House an assurance that the Home Secretary will not deliberately wait until an individual is abroad before exercising Clause 60 powers?
Lord Taylor of Holbeach: It is up to the Home Secretary to determine when she exercises powers in the country’s best interests. As far as I can see that is a sort of non-question, because she exercises the powers at her discretion and will do so in the best interests of the country.
Nationality can be reacquired, says Amendment 76A. On that amendment, it is a reasonable requirement for those deprived of citizenship to acquire an alternative nationality quickly. However, often those individuals have little incentive to do so, and any arbitrary time limit imposed on the power would only provide an incentive to delay.
The purpose of this power is to ensure that the Home Secretary can protect the security of the UK, whether or not the individual can or has the inclination to avail themselves of another nationality. In considering deprivation cases, assessments will be made of all circumstances, including the right to another nationality, but statelessness of itself should not be an arbitrary bar to action.
Let us be clear: deprivation action is taken only against those individuals who meet the thresholds I have outlined. We do not, and cannot, take deprivation action against family members — husbands, wives or children. I hope that that reassures the noble Lord, Lord Roberts of Llandudno. It cannot be done on the basis of any relationship to the person being deprived. The Home Secretary has a statutory duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to “safeguard and promote the welfare of children” in respect of immigration, nationality and asylum decisions. That is a duty which we take seriously and there is no necessity to restate it explicitly in the context of Clause 60, as Amendment 77 seeks to do.
The noble Baroness, Lady Smith, asked specifically about the case of Y1. The judgment in that case from the Special Immigration Appeals Commission in November 2013 dismissed Y1’s appeal against deprivation. The Home Secretary is entitled to reach her decision on how to manage cases using available evidence as appropriate.
The noble Baroness asked about numbers and mentioned that 27 people had been deprived under conducive powers since 2006. These powers have been exercised by not just this Government but the previous Government. There have been appeals — 15 individuals have appealed against the decision taken by this Government to deprive them of their citizenship. The majority of those appeals are ongoing but, aside from Al-Jedda, to which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, referred, to date there has not been a successful challenge to a deprivation decision.
Some noble Lords are concerned that the proposed new power enables the Secretary of State to take account of behaviour carried out before the clause comes into effect. Surely it would be perverse if that were not the case. Such a position would not allow the Home Secretary to consider the full background to individual cases. We believe that those who naturalise to become British citizens should adhere to the values and laws that they swear an oath to maintain. As such, we believe that there is justification for making this power apply with an element of retrospection.
Noble Lords have challenged whether deprivation makes such people less of a threat. Deprivation is just one of a number of tools that can be used to disrupt the national security threat posed by certain individuals, either on its own or in conjunction with other immigration powers. By removing an individual’s entitlement to a British passport and to enter or remain in the UK, deprivation can help reduce the direct threat an individual poses to the UK — for example, by precluding him or her from involvement in the development of terrorist networks, the provision of terrorist support or training and the preparation of terrorist attacks on the UK.
It is important to remember that a person who could come within the scope of this new power would already be liable to being deprived of citizenship under existing powers. The only thing that prevents that now is that such a decision would leave them stateless — that is the difference that Clause 60 seeks to address — which is a fact that may become apparent only some way into the deprivation process. Therefore, we do not consider that an individual could have had a legitimate expectation that there would be no consequences of their behaviour. Again, I remind noble Lords that we are talking here about individuals who have committed acts that go to the heart of our national security.
In conclusion, this is a limited power that will apply to the most serious cases involving national security and those taking up arms against British or allied forces. The Secretary of State will continue to exercise her power with due consideration and within the existing safeguards for such cases. I have taken note of the points that have been made in this debate, and having time to go through the particular provisions of Clause 60 has been very worthwhile. I have noted the suggestion of the noble Lord, Lord Pannick, that between now and Report we have a meeting to discuss the implications of Clause 60. Indeed, I have noted the positive suggestions made by a number of noble Lords. In the mean time, I hope that noble Lords will withdraw their amendments.
Lord Pannick: Before the Minister sits down, perhaps I could ask a question. He gave a very comprehensive reply — a very helpful one, if I may say so — but, unless I missed it, I do not think that he responded to the concern that, far from promoting the security of this country, Clause 60 will damage security. This is because the clause will make it more difficult to remove dangerous people, and make it more likely that dangerous people who are temporarily abroad will be sent back to this country because they no longer have a British passport. I wonder whether the Minister wants to say anything about those concerns.
Lord Taylor of Holbeach: That was of course a consideration in the discussions that led to the tabling of this clause. I think that I did address this point, in the sense that an individual who poses a threat to this country can have restrictions placed on them other than the deprivation of citizenship. I am sure the noble Lord will understand this point. I wish to make the point that this is a balanced judgment. The Home Secretary, who after all has to exercise powers within the law on this matter, believes that the law is deficient in this respect. She seeks to change it, and is doing so through this Bill. Knowing her, I do not think that she would make that decision if she felt that it would in any way weaken the security of this country.
Baroness Lister of Burtersett: I am sorry to ask the Minister yet another question. However, I asked a very specific question which was raised by the Joint Committee on Human Rights, and I do not believe that the Government have responded to our second legislative scrutiny report. If they have, the response has certainly not yet arrived on my desk. The question was: how many of those who have been deprived of citizenship in recent years have been abroad, and why will the Government not provide that information to Parliament? As the JCHR said, surely Parliament has the right to have that information in considering Clause 60.
Lord Taylor of Holbeach: The noble Baroness is right. I was getting muddled between the two responses. The second report has not yet been responded to; it will be. I hope that it can address some of the issues raised by the noble Baroness. The noble Baroness, Lady Smith, referred to the question of whether there was some difference between what James Brokenshire said and what I said in my speech. Perhaps I can explain that by saying that where a person cannot be removed to another country, we would consider whether a discretionary granting of leave was appropriate. An option would be for the person to be placed on limited leave, with conditions such as regular reporting restrictions or the need to notify the Home Office before taking up work or study in a particular field. I hope that explains that there is no difference, and I think it backs up my supplementary answer to the noble Baroness when we debated the issue.
Baroness Smith of Basildon: I am grateful to the noble Lord for coming back to me on that point, but there are numerous other questions that he has failed to answer. He has not answered any questions about whether there are any other areas of law in this country that allow for two categories of citizenship. He has not told us whether there have been discussions or consultations with other countries to which British passport holders may travel —
Lord Taylor of Holbeach: On that first question, perhaps I could ask what the noble Baroness means by “two categories” of citizenship.
Baroness Smith of Basildon: In most countries, if someone is a citizen then they are a citizen. If someone is a natural born citizen of this country, their citizenship cannot be removed and they cannot be made stateless. Yet in this Bill the Government propose that if someone is a naturalised citizen of this country — as are Members of your Lordships’ House — they could have their citizenship taken away, even if they would be made stateless. I thought that that was clear, and that it was the point of what the Government sought to achieve.
Lord Taylor of Holbeach: Surely the categorisation is about naturalised British citizens and not about whether they are stateless. Therefore, this is in existence because it already exists in UK law.
Baroness Smith of Basildon: I think that the noble Lord is missing the point. My understanding was that if someone was a naturalised British citizen, he or she had all the rights and responsibilities of any other citizen. That is changed by this legislation. I was asking whether any other area of law is responsible. The noble Lord can come back to me on that. The position would be changed by this legislation because a naturalised citizen can be stripped of their citizenship and be left stateless. If I am correct in my understanding, a British-born citizen could not be left stateless. Only naturalised citizens could be made stateless by this legislation. Perhaps the noble Lord wants to respond to that.
Lord Taylor of Holbeach: I am afraid that there is a disconnect in our train of thoughts on this. I will write to the noble Baroness to explain exactly how this operates. The only change made by Clause 60 is that statelessness is no longer a reason why naturalised citizens should not be deprived of their citizenship. It is not a question of two categories of citizenship based on whether a person is naturalised or not.
Baroness Smith of Basildon: I think that it does and I will look to the lawyers on this issue. I also look forward to receiving the letter. Only naturalised citizens of this country could be made stateless. Natural-born citizens could not be made stateless by this legislation. However, I have other questions. I asked about consultation and discussions with other countries on the impact of people travelling overseas on a British passport and having their citizenship withdrawn. The noble Lord has not come back to me on that point. He has no more information on the 27 people. He has not come back on the issue of someone not being able to get citizenship in another country. We have the short-term answer but not the long-term answer. A number of questions remain unanswered.
The noble Lord is always very gracious and helpful in writing to noble Lords when he has not been able to answer questions. However, this clause has had very little scrutiny in Parliament. To have tabled it at the last minute, literally about 24 hours before Report in the other place, was disgraceful. It would have been helpful if all those answers had been addressed today to allow a full and proper debate. I am grateful to the noble Lord for writing to us but that is not a good principle when issues have not been debated in the other place. After the noble Lord has written, the only discussion that we will have will be at Report stage. I find that unsatisfactory.
Lord Taylor of Holbeach: If the noble Baroness had advised me in advance of the things she was uncertain of, I would have done my best to provide her with those answers. I have limited resources available to me at the Dispatch Box and a limited amount of time. I have suggested to the noble Lord, Lord Pannick, that it would be very useful if we could discuss this matter before Report stage. In the mean time, if noble Lords have any questions other than those that they have raised today, which I will address in writing, please advise me. It is important to get this legislation right. I believe in being able to scrutinise legislation in this House, in Committee and at all stages of a Bill.
I apologise for not answering all the questions but I have done my best. The noble Lord, Lord Pannick, advised me that he considered that my reply had been helpful. I seek to be helpful to the House.
Baroness Smith of Basildon: The noble Lord always seeks to be helpful. My point is a broader one of scrutiny and the lack of time available for discussion, but I would welcome any meeting. I also say that my resources are somewhat more limited than his. I sometimes felt that in his response we were having a slightly different debate. He was responding to a debate about deprivation of citizenship. Most noble Lords who spoke in today’s debate were talking about statelessness and its implications for the security of the UK. There was little argument that there might be a need at times for people to have their citizenship taken from them or revoked. That was understood. It is the changes being made by this legislation that would create a position of statelessness that cause the most concern.
The reason I say that great scrutiny is required is to establish evidence as to whether the measure is necessary. I thought that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, was extremely helpful in his take on the measure before us. I also ask whether this measure achieves the objectives that the Government are seeking. The noble Lord and his party do not have a monopoly on wanting the citizens of this country to be safe and secure. I am sure that is the objective of every Member of your Lordships’ House. However, we do have to consider the wider impact and unintended consequences of any legislation that is brought before your Lordships’ House. There is much concern about the measure. Noble Lords have asked many questions and the opinions of respected and eminent lawyers have been quoted. That is because of concern that it does not achieve the objectives that the Government are seeking. Most importantly, it does not make the citizens of this country, or more widely, safer or more secure if people are deprived of citizenship in a way that makes them stateless.
I take on board entirely the comments made by the noble Lord. He was talking about individuals who have committed acts that are a danger to this country and that may involve terrorism. Why, if there is evidence of that, could it not be presented as evidence against those people? Instead, the Government want make them stateless. There are consequences around statelessness that give rise to concern for public, national and international safety. I look forward to receiving further information from the Minister. The jury is still out on this. I have not been convinced that the measure proposed by the Government does what it seeks to do or is an appropriate way forward. I beg leave to withdraw the amendment.
Amendment 74 withdrawn.
Amendments 75 to 79 not moved.
Clause 60 agreed.
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).
To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.
Allison Lee-Clay wrote:
Funny, Stephen Harper wants to do the same thing…
Yes, thanks for mentioning that, Allison. I was disturbed to read a few weeks ago that the Harper government was floating the idea of stripping Omar Khadr of his citizenship when they finally deign to let him out of prison, and deporting him to Egypt, where his father was from, even though Omar was born in Canada. Here’s a Toronto Star column by Thomas Walkom: http://www.thestar.com/news/canada/2014/02/07/canadas_new_citizenship_bill_a_trojan_horse_walkom.html
It begins: “The federal government’s new citizenship bill is a Trojan horse. It is presented as an attempt to reduce fraud and rationalize the process of becoming a Canadian citizen, both of which are sensible aims. But it would also give Prime Minister Stephen Harper’s Conservative government unprecedented authority to strip Canadians — including thousands born in this country — of their citizenship.”
And this on Khadr:
“Government press releases say the new revocation measures would apply only to dual citizens — that is, to Canadians who are also citizens of another country. Technically, this is true. What the press releases don’t say is that thousands of Canadians born in this country may be dual citizens without realizing the fact. That’s because, as the government’s own foreign affairs department points out on its website, many countries automatically treat the children — and even the grandchildren — of their nationals as citizens, regardless of birthplace.
“Egypt, for instance, generally regards any children of Egyptian-born fathers as citizens of Egypt, no matter where they are born. Toronto lawyer Lorne Waldman says the Conservative government may be able to use this fact to strip former child soldier and Guantanamo detainee Omar Khadr of his Canadian citizenship.
Khadr, who is serving an eight-year sentence after being convicted of terror-related offences by a U.S. military court of dubious legality, was born in Toronto. He has never been to Egypt. But his late father was born there. And with this bill, that puts him under the gun.”
Also, I also see Citizenship and Immigration Minister Chris Alexander using exactly the same language as the UK in his comments on proposed reforms to the Citizenship Act: “Citizenship is not a right, it is a privilege.” See: http://www.cbc.ca/news/politics/new-citizenship-rules-target-fraud-foreign-terrorism-1.2525404
I wrote to Baroness Smith asking what more could be done, and she sent me the following reply:
Thank you for your e mail about the Immigration Bill.
Clause 60 was not voted on when it was debated at Committee Stage, but as you may be aware, every speaker, other than the Minister, opposed the Government proposals. It has now become Clause 64 because of new clauses earlier in the Bill.
This issue will be debated again at the report Stage of the Bill on 7th April on a new amendment that has been tabled in the names of Lord Pannick, myself, Lord MacDonald and Lord Brown of Eaton under Heywood.
Please feel free to write to any members of the House of Lords in support of this amendment. That would be helpful.
So that’s on Monday. You can find contact details for the Lords here: http://www.parliament.uk/mps-lords-and-offices/lords/
Or here: https://www.writetothem.com/lords
Good news! While I was away in Mexico, Theresa May’s citizenship-stripping proposals were defeated in the House of Lords. This is how Reprieve responded (on April 7):
Government plans which would allow ministers to strip Britons of their citizenship without due process – even where doing so would make them stateless – were tonight defeated in the House of Lords.
The measures, contained in clause 64 of the Immigration Bill, would have allowed the Home Secretary to deprive any naturalised Britons – i.e. any of the estimated 3-4 million not born in the country – of their citizenship, without having to first go through any legal process. It would also enable her to do so even if it would leave the person concerned without any nationality.
The measure, which had been brought forward by Theresa May at the last minute of the Bill’s progress through the Commons, was tonight removed from the Bill in favour of an amendment which requires it to be further considered by a joint committee of the Commons and Lords. The amendment was backed by a former Supreme Court Judge, Lord Brown, former Director of Public Prosecutions, Lord Macdonald, leading QC Lord Pannick and Labour front-bencher Baroness Smith. It passed by 242 votes to 180.
In a previous debate, Lord Macdonald had warned that the Home Secretary’s proposal “associates the United Kingdom with a policy beloved of the world’s worst regimes during the 20th century.”
Reprieve press release here: http://www.reprieve.org.uk/press/2014_04_07_Lords_defeat_citizenship_stripping/
And more from Open Democracy here: http://www.opendemocracy.net/opensecurity/patrick-galey-alice-ross/lords-impede-uk-citizenstripping-move
In the Open Democracy article, Patrick Galey and Alice Ross explained more about the amendment tabled by the cross-bencher Lord Pannick:
Pannick tabled an amendment that would force the government to submit its plans to a cross-parliamentary committee of six MPs and six Lords. It could also include a public consultation. The amendment, co-signed by leading lawyers including a former director of public prosecutions and a former Supreme Court judge, passed with 242 votes against the government’s 180.
Pannick’s amendment would effectively delay the use of the new power for months. The government could still attempt to introduce compromises at the bill’s third reading in the Lords in the first week of May and the amendment will face opposition from MPs of the governing, Conservative / Liberal Democrat coalition when the bill goes back to the Commons.
The Commons debate may be as early as May 7, so please, if you can, write to your MP to ask them to vote against the citizenship proposals, which are now Clause 64 of the Immigration Bill: https://www.writetothem.com/
I have been studying statelessness for a period of time as a lay person.The British Government have been for many years “stripping” their own citizens very gradually in certain areas of what I consider human rights! There is a legal term for persons who have become citizens prior to being stateless who feal that although given citizenship still don’t believe or can show they aren’t receiving normal protection, arguing effectively that their recategorisation to a citizen status was merely a worthless formality,and upon these grounds I suggest that perhaps persons who have suffered long term continual blacklisting in the U.K of ANY kind carefully take into consideration the following: [holding a nationality is not prerequisite to enjoying human rights], with the perception upon without human rights are you effectively a citizen? or a recategorised stateless commodity.I do not support terrorist acts against Israel America or UK and I am not a member of political organisation or party.
Very interesting, David. Thanks for your comments. I recognise the importance of the questions, “without human rights are you effectively a citizen? or a recategorised stateless commodity?”
Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
Email Andy Worthington
Please support Andy Worthington, independent journalist: