Committee (1st Day)
Relevant documents: 7th and 9th Reports from the Joint Committee on Human Rights, 11th Report from the Constitution Committee
Clause 1: Historical inability of mothers to transmit citizenship
1: Clause 1, page 2, line 10, leave out “equally” and insert “in the same terms”
Member’s explanatory statement
The JCHR recommended that the Home Office consider how best to ensure that the intention to treat those previously discriminated against equally well as those not previously discriminated against, is made clear in the drafting of Clause 1. This amendment is to probe the drafting of Clause 1.
My Lords, Amendment 1 is grouped with Amendments 2, 8, 9, 10, 12, 17 and 21. Amendment 9 is in the names of the noble Lord, Lord Dubs, and my noble friend Lady Ludford; the others are all in our names.
This Bill is not all bad, so I am glad to be able to start with Part 1, most of which we support, although the exceptions to that support are very significant. This rather gentle introduction is to probe into the clause that remedies historical inequalities. What is not to like? One thing that I do not like—which is not directly related to the Bill, but I am going to take this opportunity to say it—is that I am not comfortable with receiving so many briefings from organisations to which we cannot do justice. That is my discomfort. It is not that we do not want the briefings, but often they come too late for us to reflect concerns in amendments. I know that I am not alone in this House in finding it hard to keep on top of the material and feeling particularly bad about not being able to use all that is sent to us. I hope that organisations—which I know are very often overstretched and understaffed, and have their day job to get on with—will understand that we are not ignoring them, but please could they send us material earlier than sometimes they do? I am sure I am not the only one who has received briefings this morning.
I turn to the substance of the matter. Clause 1 provides for parents where there is discrimination in British nationality law that prevents mothers passing on British Overseas Territories citizenship to their children. It provides for the parents in such cases to be treated equally in terms of passing on that citizenship. The Joint Committee on Human Rights pointed out that this could mean equally well or equally badly; naively, I had not thought about it being equally badly. The way the clause is drafted is not the same as Section 4C of the British Nationality Act, which addresses the same discrimination in respect of British citizenship. That uses the phrase “in the same terms”, and that is what is proposed in several of these various amendments. I understand that concerns have also been raised that the reference to the parents having “been treated equally” is, on its face, unclear. The JCHR said it would be prudent to deal with the drafting so that it is “in the same terms”. I add that when you have different wording relating to very similar situations, that in itself suggests that the two should be dealt with differently.
Amendment 8 takes us to the issue of good character and would repeal Section 41A of the British Nationality Act. That section requires adults and young persons to be “of good character” if they are to be able to register as British citizens. If someone has the right to become a British citizen—or, more accurately in some cases, to have their right to citizenship registered, because the right is to citizenship and registration is simply the procedure—then what is done by the right hand should not, by giving discretion to the Secretary of State, let the left hand take it away. I hope the Secretary of State will allow me, for this purpose, to describe her as the left hand.
This point applies to Amendments 10 and 19 and to Amendment 9 from the noble Lord, Lord Dubs, and my noble friend Lady Ludford. Their explanatory statement is much more elegantly expressed than mine, but it is the same point. This point is particularly acute in the case of a child. Is the test really in the child’s best interests? I saw a bit of resonance with the police Bill, which I was going to say we have so recently finished but of course we have not, when we debated an amendment about candidates’ disqualification for standing for office as police and crime commissioners because of a misdemeanour—I think I can almost use that term in its technical sense—in their youth. This term is not the same as that; it is more amorphous. It is a discretionary matter and is of particular concern. I beg to move.
My Lords, I will speak briefly in support of Amendments 8 and 9 about good character. Like the noble Baroness, Lady Hamwee, I am particularly concerned about its application to children and those whose conduct when a child—and we are talking about children as young as 10—is used to deny the right to register as a citizen, which would otherwise be theirs.
The Joint Committee on Human Rights has voiced its concern, not just with regard to this Bill but in a 2019 report, where it pointed out that
“half of the children denied their … right … to British nationality on good character grounds have not even received a criminal conviction (having merely received a police caution)—let alone been prosecuted for ‘heinous crimes’.”
The Select Committee on Citizenship and Civic Engagement, of which I was a member, expressed considerable concern about the good character requirement. The committee called for a review of its use and description and of the age from which it applies—which is, as I said, 10. The Project for the Registration of Children as British Citizens, of which I am a patron, and Amnesty International, which have been campaigning on this point for some years, say:
“That some British people are required to satisfy the Home Secretary that they are ‘good’ for their citizenship rights to be recognised is divisive and alienating.”
I am not sure how many politicians would come out well as having “good character”, but I shall leave that as it may be. The good character condition is relatively recent in nationality law. It certainly should not be extended; ideally, it should now be scrapped.
My Lords, as we have heard, the Joint Committee on Human Rights spent quite a lot of time considering this and related issues. I should perhaps say at the outset that when I was in the Commons, I served on the Public Bill Committee dealing with the Bill that became the British Nationality Act. I am trying for the life of me to remember some of the details of the discussions. I have not had time to look them all up, but we certainly spent many weeks and many sittings on that Bill, but I do not recall this issue arising. I do not think the good character requirement existed then; I think it was brought in later.
The issue is that in the process of trying to get British nationality, there has been some discrimination, or there would be discrimination if the good character requirement were to apply. I am thinking of somebody who should normally have been able to get British citizenship but was unable to do so and, when applying now, if this is passed, will have to meet the good character requirement. That seems a little odd. I hope I have understood that correctly; that was certainly how we looked at it on the Joint Committee on Human Rights.
Perhaps the best thing I can do is to quote from the committee’s report, because it states it very clearly. This is from paragraph 41:
“We reiterate concerns made by this Committee in previous Parliaments that requiring good character when considering applications resolving prior discrimination risks perpetuating the effects of discrimination for those previously discriminated against. Moreover, we also share the concerns raised by the JCHR in 2019 about the appropriateness of the good character requirements being applied to children, particularly children whose main or only real connection may be with the UK. It is difficult to align this requirement with the obligation to have the best interests of the child as a primary consideration.”
That is the case for this amendment.
My Lords, my noble friend Lady Hamwee has comprehensively explained the reasons for these amendments, which we support. On the issue of good character, if someone has the right to become a British citizen—they already have that right; they just want to register it—what has good character got to do with it, particularly if they are children? Even if the applicant is guilty of a criminal offence, surely denial of citizenship is a disproportionate punishment.
What are we to say about people who acquire British citizenship at birth? We do not say to British citizens, “You’ve been found guilty of a criminal offence, so we are going to take away your citizenship.” What is the difference if people have to apply to register their British citizenship? We fully support these amendments.
My Lords, I just second what everyone else has said, in particular the noble Lord, Lord Dubs, whose Amendment 9 I have had the honour to co-sign. As he pointed out, the key element to stress here is that the imposition of a good character requirement for citizenship now would perpetuate discrimination against those who have been discriminated against in the past, when the whole—laudable—point of Part 1, which, as my noble friend Lady Hamwee pointed out, is the only good bit of the Bill, is to rectify historical injustice.
Indeed, as the Joint Committee on Human Rights believes, it could well amount to
“unlawful discrimination, contrary to Article 14 as read with Article 8 ECHR, to require a person to prove good character when remedying previous unlawful discrimination against that person.”
When applied to children, it is even more unfair and obviously against their best interests. Hence the need to delete Clause 3(4), which is the focus of Amendment 9. The noble Baroness, Lady Lister, referred to the quotation that this is “divisive, alienating” and unjust, compared to the treatment of other British citizens.
Good character is not even defined in statute—in this case, the British Nationality Act—but only in a Home Office policy document. The courts have stipulated that Home Office decision-makers should make an overall assessment, including evidence of positive good character—which is presumably difficult in the case of a child, certainly a small child—but, inevitably, the guidance focuses caseworkers’ minds on when to refuse on grounds of bad character. Instead of that holistic, individualised approach to assessment, there can be an inevitably negative approach.
Due to past discrimination, any conduct subsequent to 2002 could risk being a bar to obtaining British citizenship; whereas, if that person had not been discriminated against and had been allowed citizenship 20 years ago, along with others, any subsequent conduct would not have affected their British nationality. It is a double whammy of discrimination. As the noble Lord, Lord Dubs, said, the JCHR has long raised the objection that requiring good character when considering applications to resolve prior discrimination simply perpetuates the effect. It is not only unfair, especially for children, but illegal.
The committee is thus entirely consistent in urging the deletion of Clause 3(4). At the very least, I should like to hear from the Minister in her reply whether she can clarify exactly how the discrimination would be used.
My Lords, briefly, I offer Green group support for these amendments. The noble Lord, Lord Paddick, made a point that needs to be reinforced. We have a question, which will arise later with my Amendment 33. Do we have one class of British citizenship or two? If you are not a British citizen because of past discrimination, can we really allow you to be discriminated against again just because of where you or where your parents were born? That is simply unacceptable.
My Lords, we strongly welcome Clause 1 and, as the noble Baroness, Lady Hamwee, said, in a Bill where there is so little to welcome, the early clauses of Part 1 seek to redress historical injustices in our nationality law. That is certainly welcomed from these Benches, as well as by other noble Lords who have spoken.
Clause 1 corrects an historical injustice left over from what many would regard as the appalling situation in which mothers did not have the same citizenship rights as fathers. It addresses the citizenship rights of children of mothers who were British Overseas Territory citizens. I thank the noble Baroness, Lady Hamwee, for her amendments. We raised the clarity of drafting of the clause when the Bill was in the Commons. As the noble Baroness also explained, this concern was raised by the JCHR, which noted that the language in this clause is not the same as the language used for similar purposes in the 1981 Act and raised questions over how well the clause achieves its intention. The JCHR said:
“We recommend that the Home Office consider how best to ensure that the intention to treat those previously discriminated against equally well as those not previously discriminated against, is made clear in the drafting of clause 1.”
In the Commons, my colleagues pushed the Government to amend the clause so that its drafting reflects the drafting in the 1981 Act, when this discrimination was addressed for children of British citizens. I am sure that the Minister will appreciate that, in raising this concern, we are all trying to get this right and make the clause work as it should.
The Minister’s response in the Commons was that he did not believe that amendments were necessary, which is quite a standard government reply, and that the current drafting worked as intended. He also said that these points would be further clarified in underpinning guidance. Have the Government given this issue further thought since it was raised in the Commons? What objection do they have to a minor amendment to answer the JCHR’s concerns? If Ministers believe that that will be further clarified in guidance, should they not consider clarifying it in the Bill?
When we consider the good character requirement—I do not want to repeat everything that has been said—the JCHR is concerned that requiring good character when considering applications resolving prior discrimination risks perpetuating the effects of discrimination for those previously discriminated against. Much of this debate is familiar. As has been said, over the past few years the JCHR has routinely raised concerns about the impact of the good character requirement in cases resolving previous discrimination and in cases concerning children. I simply ask: how does that square with our primary duty to act in the best interests of the child and how is that currently balanced with the good character test? Can the Minister provide details to the Committee on how many children each year are refused citizenship based on this requirement and on what grounds it is deemed that they do not meet the test?
I too welcome the questions raised by my noble friend Lord Dubs on behalf of the JCHR on the application of the good character requirement in Clause 3. I simply wish to make the point that we are debating this clause due to gaps left in the law where we attempt to redress historical discrimination. Where the JCHR is raising concerns that the good character requirement is inappropriate where an applicant has already had their rights denied for a significant number of years, the Government should consider that challenge seriously. If we are to remove existing injustices in our system, we should do so thoroughly and with great care, so that we do not find ourselves having to come back for further fixes at a future date.
I look forward to the noble Baroness the Minister’s reply on behalf of the Government—or perhaps it is the noble Lord; I am sorry.
I thank noble Lords, and I am sorry to disappoint the noble Lord, Lord Rosser..
I thank the noble Baroness, Lady Hamwee, for tabling Amendments 1 and 2. Both refer to Clause 1, which I am pleased to introduce, as it corrects a long-standing anomaly in British nationality law. I appreciate my noble friend’s attention to detail in seeking to make sure that this new provision is clear and in line with the parallel provision in the British Nationality Act 1981 for children of British citizen mothers. However, we do not think that an amendment is needed, as the proposed wording here achieves what is intended. In saying that this provision applies to someone who would have been a citizen had their parents been treated equally, we are talking about a situation where the law applied equally to mothers or fathers, women or men. We are satisfied that the current wording does what is required.
I turn now to Amendment 8 and consequential Amendments 10, 12, 17 and 21, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. British citizenship is a privilege, reserved for those who meet the requirements of the British Nationality Act 1981 and who respect the law and values of the UK. This is reflected by the statutory requirement for an individual to be of good character when they apply for British citizenship. Published guidance sets out the basis for how we assess whether a person is of good character and the types of conduct that must be taken into account as part of this assessment.
Decision-makers are required to give careful consideration to each application on a case-by-case basis, and must decide on the balance of probabilities whether an applicant is of good character. Grounds for refusal of citizenship on the basis of not meeting the good character test include criminality that meets the threshold laid out in guidance, immigration offending such as illegal entry or unlawful residence, and serious adverse behaviour such as war crimes, terrorism or genocide. Such behaviour is fundamentally in opposition to core British values of decency and adherence to the law. Removing the good character requirement from all registration routes for British citizenship would mean that we could no longer refuse citizenship to those opposed to these values.
I turn, finally, to Amendment 9, for which I thank the noble Lord, Lord Dubs; I know he has taken a great interest in a number of the provisions of the Bill. I start by reassuring the Committee that the Government are committed to removing discrimination from nationality legislation. That is the aim of Clauses 1 and 2. The Government also recognise the difficulties that current British nationality law has presented for some British Overseas Territories citizen parents who wish to pass on their citizenship. However, the Government do not agree that the application of the good character requirement as set out in Clause 3(4) results in unlawful discrimination. Removing the good character requirement for those applying to register as a British citizen having acquired British Overseas Territories citizenship through the new routes established by Clauses 1 and 2, as this amendment proposes, would be unfair and inconsistent with the approach for British Overseas Territories citizens who can apply to become British citizens by virtue of Section 3 of the British Overseas Territories Act 2002 and who are subject to the good character requirement.
The noble Baroness, Lady Hamwee, mentioned the word “misdemeanour” in connection with such matters. We need to be clear that the guidance is clear that a criminal record does not necessarily mean that an application for citizenship will be refused. Those with a non-custodial sentence or who have received an out-of-court disposal will normally be refused citizenship unless three years have passed. Caseworkers have discretion to make an exceptional grant of citizenship in certain circumstances. On the subject of children, we ought to remind ourselves that 10 years old is the age of criminal responsibility in England and Wales.
I want to clarify that the good character test applies only to new provisions introduced in the Bill to resolve historical discrimination where it already applies to the current route that the person would have been entitled to register under had the discrimination not existed. So the only people who will have to meet a good character requirement under Clause 3 are those who would have had an entitlement to registration as a British Overseas Territories citizen under Sections 15(3), 17(2) and 17(5) if their parents had been married, because registration under those routes carries a good character requirement.
To try to answer the question of the noble Lord, Lord Dubs, where people would have become British automatically had women and unmarried fathers been able to pass on citizenship at the time of their birth, the good character requirement does not apply.
The noble Lord, Lord Rosser, asked how many children this issue has affected. I am afraid that I do not know the answer and will have to write to him. I should say that if the person would have become British automatically had the discrimination not existed, they will not now have to meet the good character requirement. That deserves reiteration.
I ask noble Lords to withdraw or not move their amendments for the reasons that I have outlined.
Can the noble Lord address the point that I made, which I think was in the JCHR report? The courts have said that there should be an overall assessment—a holistic approach—that looks at good character as well as bad. However, the noble Lord appeared to concentrate only on a bad record being a triggering factor. He used the phrase “balance of probabilities”, but did not say that something bad could be outweighed by an otherwise wholly good record. He did not appear to suggest or confirm that overall holistic approach. He concentrated only on the negative triggers, which is precisely a fear expressed in the JCHR report. It goes against what the courts have said should be the approach.
I thank the noble Baroness for her request for clarification. Guidance is clear that a criminal record does not necessarily mean that an application for citizenship will be refused. As I said earlier, those with a non-custodial sentence or who have received an out-of-court disposal will normally be refused citizenship unless three years have passed. But—and this is the key point—caseworkers have discretion to make an exceptional grant of citizenship in certain circumstances, which, I should imagine, would very much cover the circumstances that the noble Baroness has just described.
My Lords, there is clearly concern about good character. I echo my noble friend’s query; the point about a holistic assessment has not been answered. I appreciate that those briefing the noble Lord might not have anticipated the question, but the way in which a caseworker sets about the task is fundamental to this issue.
I should make it clear that, when I mentioned a misdemeanour, it was in the context of the police Bill and not of this Bill. The Minister mentioned genocide. I am not, for a moment, suggesting that someone guilty of genocide would meet any sort of test of good character. Sorry, does the Minister want to respond?
I did not mean to imply that the noble Baroness was saying that. I apologise for intervening on the noble Baroness, but I want to clarify the caseworker point. To answer the question, they do look at cases in the whole.
Thank you. That is good to know.
I come back to the registration point that we are dealing with. The Minister made some distinction between different routes. I take that point. I am not capable of making these distinctions myself, on my feet, without a lot of papers spread around me.
Section 41A is about registration. I say to the noble Lord, Lord Dubs, that it must have come in after the Bill had been introduced in order for it to be numbered in this way.
I turn to my first two amendments—to replace “equally” with “in the same terms”. I repeat my point that having one concept expressed in different ways in the same Act is bound to cause confusion, if not trouble. This may be very boring and it does not go to the root of a lot of what we are debating, but it is potentially of great importance in practice. I hope that the government lawyers can look at it again—or perhaps all my legal training is out of date. I beg leave to withdraw Amendment 1.
Amendment 1 withdrawn.
Amendment 2 not moved.
3: Clause 1, page 2, line 46, at end insert—
“(7) The Secretary of State must not charge a fee for the processing of applications under this section.”Member’s explanatory statement
This amendment ensures that the Secretary of State must not charge a fee for the processing of applications under section 17A.
My Lords, this is the first time I have spoken on the Bill, as I was unable to speak at Second Reading. I want to speak to the amendments in my name in this group. I look forward to hearing the thrust of Amendment 13 from the noble Baroness, Lady Lister. At the outset, I declare that my mother was a naturalised Brit through marriage, under an earlier incarnation of this Act. I am also a non-practising member of the Faculty of Advocates.
I shall move Amendment 3 and speak to Amendments 4, 5, 6, 7, 18 and 22. I am enormously grateful to Michael Clancy of the Law Society of Scotland for his expertise and briefing in preparing these amendments, which concern the fees to be charged under Clauses 1, 2, 3 and 7 of the Bill. The amendments are the work of the Law Society of Scotland, and in particular I pay tribute to its immigration and asylum sub-committee, which has considered this part of the Bill in some detail.
The Law Society of Scotland states that it agrees with Clause 1, subject to the registration process being free. There is no clarity around that in Clauses 1, 2, 3 and 7. This is a cause of concern and which is why I have tabled these amendments. In this connection, the Law Society acknowledges and agrees with the 2020 report by British Future, Barriers to Britishness. At pages 10 and 11, it recommends:
“Citizenship by registration should be free for those who become British by this route. This group mostly comprises children and those with subsidiary categories of British nationality, such as British Overseas Territories Citizens and British National (Overseas) passport holders from Hong Kong who now have a route to citizenship through the bespoke British National (Overseas) visa.
Nationality law should be amended to allow children born in the UK to be British citizens automatically, restoring a policy that applied before 1983.
Vulnerable groups of people should be encouraged to take legal advice, which should be affordable and widely available in all parts of the UK.”
The Law Society looked particularly at the case of PRCBC and O v Secretary of State for the Home Department—reported in “ EWCA Civ 193”—where the Court of Appeal held that the fee of £1,012 for certain applications by children to register was unlawfully high. An appeal to the United Kingdom Supreme Court has recently been heard. We await the decision in due course.
I also want to refer to the extremely helpful report from the Constitution Committee of this House about the Bill. Paragraph 16 concludes:
“The Government should clarify its intentions on the amount of fees to be charged under Clauses 1, 2, 3 and 7.”
The committee sought clarity as to what fees will be charged for registration applications under this clause and under similar provisions in Clauses 2, 3 and 7, referred to earlier. The committee also referred to the forthcoming appeal decision of the Supreme Court.
I urge my noble friend, when summing up on this little group of amendments, to come forward and say whether fees are going to be applied and at what level they will be set. It is inappropriate to discuss the Bill at this stage and not to have any idea as to what fees will be charged during the process. With those few remarks, I beg to move.
My Lords, I shall speak to Amendment 13 in my name. I thank the noble Lord, Lord Alton of Liverpool, the noble Baroness, Lady Stroud, and the right reverend Prelate the Bishop of Durham—who cannot be here today—for their support. I support the other amendments in this group. I am grateful, too, to the Project for the Registration of Children as British Citizens, of which I am a patron, and to Amnesty International UK, for their help. Once again, I pay tribute to them for their continued work to promote children’s citizenship rights.
Essentially, the new clause would ensure that children are not excluded from their right to citizenship by registration by unaffordable fee levels, well above the cost of administering that right. It will also require action to raise awareness of this right.
It feels a bit like Groundhog Day. I have lost count of the number of times we have raised this issue in your Lordships’ House. Indeed, we are now known as “Terriers United”, although I do not think that all the terriers are able to be present today. On our last outing, during debate on the then Immigration and Social Security Co-ordination (EU Withdrawal) Bill of 2020, I warned the Minister that we would be snapping at the Home Office’s heels until we achieved justice for this vulnerable group of children.
I will recap the arguments briefly. We are talking about a group of children who were either born here to parents—neither of whom was, at that time, British or settled—or who have grown up here from an early age and have rights to register as British citizens. A combination of factors, notably the exorbitant fee of more than £1,000—£640 more than the most recent stated cost of administration—lack of awareness of the need to register, and the difficulties faced by local authorities with regard to looked-after children, have resulted in thousands of children being denied that right to British citizenship, even though it is theirs. A High Court judgment, to which I shall return, noted the mass of evidence. As a consequence, many children born in the UK feel alienated, excluded, isolated, second best, insecure and not fully assimilated in the culture and social fabric of the UK.
When we last debated this issue, as part of an amendment calling for a review of the barriers to registration of the right to citizenship, the Minister said:
“I completely acknowledge the points that the noble Baroness makes about citizenship costs; I will not tell her that you do not need citizenship to live here, because your Lordships will not accept that sort of answer.”
Quite right. I trust that there will be no attempt to revive such arguments today. Instead of trying to combat our arguments, the Minister proposed a “task-and-finish activity”. This would involve discussion of the issues in the wider context of societal cohesion and integration, which, sadly, will suffer as a result of this Bill. She then said that she would
“think about how we can then bring that back to the House”.—[Official Report, 5/10/20; cols. 429-30.]
Well, we had one initial meeting. It was very constructive, but it did not really address the substance of the withdrawn amendment, and nothing came back to the House.
In the meantime, there has been a significant development: the Court of Appeal upheld the High Court’s judgment which had found the fee unlawful because of the Home Office’s failure to take account of the best interests of children under Section 55 of the Borders, Citizenship and Immigration Act. It is worth noting a few points from the Court of Appeal’s judgment. First, it spelled out:
“There is no issue but that the recent and current levels of fees have had a serious adverse impact on the ability of a significant number of children to apply successfully for registration.”
It noted that payment of the fee would involve “unreasonable sacrifices” for those on low or middle incomes and, in the case of the children of lone parents on benefits,
“it is difficult to see how the fee could be afforded at all.”
Secondly, it underlined the importance of citizenship. Both these points, it said, were
“not disputed by the Secretary of State.”
Thirdly, and crucially, it said that, because
“no other consideration is inherently more significant than the best interests of the child”,
the Home Secretary
“must identify and consider the best interests of the child … and must weigh those interests against countervailing considerations.”
The judgment gave short shrift to the frankly pathetic Home Office argument that the debate on the fees initiated by Members of both Houses constituted consideration of children’s best interests. The chutzpah of trying to put that argument takes my breath away; anyway, the court would have nothing to do with it.
The case was heard by the Court of Appeal in October 2020 and the judgment was given in February 2021. The Home Office chose not to appeal against the best interests judgment yet, nearly a year later, it still has not published the outcome of the best interests review required by that judgment. However, because of a separate appeal on a different point of law to the Supreme Court in the name of PRCBC, of which I am a patron, and O, whose case it was, judgment on which is still awaited, Ministers now argue that publication of the best interests review must await that judgment. Why, given that the judgment has nothing to do with the best interests review?
As it happens, I understand that the judgment will be given next week. Can the Minister therefore commit to publishing the outcome of the best interests review swiftly following that judgment, and certainly before Report? If not, why not? The longer the continued wait, the more children will be denied their right to citizenship because of the level of the fee. This cannot be right. Please do not use the Supreme Court’s irrelevant judgment as an excuse for rejecting this amendment. These children cannot afford to wait any longer. Every month of delay is another month of exclusion and alienation from British society. The terriers are growing very impatient.
My Lords, I will speak on Amendment 13 on behalf of my noble friend the right reverend Prelate the Bishop of Durham, who sadly cannot be in the House until later today. He wishes to declare his interests in relation to both RAMP and Reset, as set out in the register. The following words are his, but I will say that I wholeheartedly agree with every one of them.
My interest comes from my ongoing engagement in this House with issues concerning children and ensuring that their best interests are central to legislation. The Government should be doing everything they can to ensure that all children in the UK have the opportunity to thrive. We should be working to remove barriers that they may face in seeking to reach their full potential. The current British citizenship registration fees create a barrier for many children to being and feeling fully part of society.
The effect on a person of being excluded from the citizenship of their home country, of where they have been born and to which they are entitled, is deeply alienating. It is simply unacceptable for a group of people living in the UK to be alienated in this way. It is not good for individuals, families, communities and society as a whole. There should not be people unable to access their rights simply because of ability to pay. Children in particular should not have reduced rights because their parents cannot afford to pay for registration—especially when these costs are generating profit for the Home Office and are not purely to cover administrative costs. This simply cannot be justified.
We cannot continue to have a situation where thousands of children grow up in the UK believing that, since they were born here and have a British birth certificate, they have citizenship. It is only when they reach adulthood that they discover that they are not recognised by their Government as belonging to the country they call home. More needs to be done to raise awareness in communities of the right to British citizenship and how to exercise it.
I support this amendment because I want every person to feel valued, recognised and included in our society and to be given every chance to thrive and take a full part in it.
My Lords, it is great pleasure to be one of the terriers of the noble Baroness, Lady Lister, and a signatory to Amendment 13. I thank her for her conviction, eloquence and persistence in bringing this issue back to us again. It is, as I said at Second Reading, an opportunity to put right old wrongs, and we should not miss this opportunity yet again.
When she introduced this group, the noble Baroness, Lady McIntosh of Pickering, reminded us of her origins and, therefore, of an interest. I suppose I should declare to the House that I too am the son of an immigrant. My mother was Irish; Irish, not English, was her first language. She came here at the end of the Second World War and married my father, who was a Desert Rat and had fought at El Alamein; he also saw action at Monte Cassino and elsewhere. He was brought up in the East End of London, where he saw terrible anti-Semitism. He and his brothers enlisted in the Armed Forces because they wanted to contest the fascism represented by the Nazis in Germany—and one of them paid the ultimate price.
I say that simply to illustrate that you do not have to hate one country—Ireland, in this case—to love another. I am very proud of the fact that I have both a British and an Irish passport, as do my children and grandchildren. I hope that they, too, will grow up knowing about the traditions that they come from but being incredibly proud to be British citizens.
In the same spirit that the noble Baroness, Lady McIntosh, described her origins, I will say that, when I went to the great city of Liverpool as a student, I was pretty shocked when I went out in my second year looking for accommodation to see in tobacconists’ windows notices that advertised accommodation and said, “No blacks and no Irish need apply”. I know that the noble Baroness, Lady Williams, and I have this shared experience in common.
It is against that backdrop, as well as being a patron of Asylum Link Merseyside and having been involved in these issues over the years in both Houses, that I am particularly keen to support what the noble Baroness, Lady Lister, has said today. Indeed, I was involved in the 1981 proceedings in the House of Commons on what became the British Nationality Act. It was, as the noble Lord, Lord Dubs, will recall, a genuine attempt to try to define what it meant to be British. It certainly was not part of our proceedings at that time to take away the rights of children to register because of prohibitive costs debarring them from becoming citizens. I felt so strongly about this that, when I was asked whether I would provide a witness statement about what I believed to be the considerations that we had in 1981, I provided that statement to the High Court in the action that the noble Baroness, Lady Lister, described to us.
I should also mention that the late Lord Sacks, Jonathan Sacks, in two great books, The Home We Build Together and The Dignity of Difference, spelt out the nature of citizenship and why we have to learn to live alongside one another and to value the idea of citizenship. During 20 years or so as director of the Liverpool John Moores University Foundation for Citizenship, I explored the issue. It is good to see the noble Baroness, Lady Chakrabarti, here today, because she was one of our lecturers as part of the Roscoe series of lectures looking at what it means to be British and how we all should fulfil our individual missions to be good citizens in our society.
The noble Baroness, Lady Lister, has told us the High Court ruling. It is not the fault of the Government that this has gone for further definition at the Supreme Court, but why on earth did the Government not accept the decision of the High Court on this specific point about the cost of citizenship for children and leave the other issues to be decided about the general parameters, as she said? The one does not stop the other and the House should turn its attention to this.
The Court of Appeal upheld the High Court ruling that the £1,012 fee for a child to register as a British citizen was unlawful, because it was set without consideration of the best interests of children. That is at the heart of this amendment. Two of the judges, I might add, also saw great force in the argument that is continuing at the Supreme Court—that it may be additionally unlawful because it effectively deprives many children of their rights to British citizenship.
The noble Baroness, Lady Williams, has been very diligent in responding to questions on this issue, including a Question that I had tabled in the House on 19 October 2020. I said then that it was
“passing strange that the Home Office can calculate the difference between the £640 that it costs to administer the citizenship fee and the £1,012 that it actually charges, even to children in care, but cannot assess the legal costs of contesting the High Court’s judgment? Instead of racking up lawyers’ fees and subsidising the immigration system with what Sajid Javid”,
when he was Home Secretary,
“rightly called huge citizenship fees, should it not be reviewing this policy as noble Lords from right across your Lordships’ Chamber have argued?”
In 2020, there was indeed a widespread view across the House. The right reverend Prelate the Bishop of London said:
“Putting a financial barrier on being able to access one’s rights is a clear barrier to one’s access to justice”.
The noble Baroness, Lady Altmann, said:
“this is not about immigration but about children with the right to register as citizens and potentially denying them their right to register if they cannot fund more than £1,000”.
The noble Baroness, Lady Primarolo, asked:
“Will the Minister tell the House whether the Home Office carried out a children’s best interest assessment of the Government’s policy on fees in light of the original judgment?”
As far as I know, that question remains unanswered. The noble Lord, Lord Paddick, asked the Government to explain why
“the Government want the immigration system to be self-funding in a way that no other government department is”.
Again, this seems an unanswered question, but in the course of these proceedings we really need to have an answer. I was struck by what the noble Baroness, Lady Gardner of Parkes, one of the longest-serving Members of your Lordships’ House, said from the Government Benches. She asked,
“whether the Government have assessed how many people forgo registering for British citizenship for themselves and their families as they cannot afford it? How this might contribute to their sense of belonging and well-being is important”.
The noble Lord, Lord Kennedy of Southwark, asked:
“Can the Minister tell the House whether she believes it is right that the immigration system is subsidised by children who are born in Britain and have lived their entire life in Britain and have the right to be British?”—[Official Report, 19/10/20; cols. 1273-74.]
I could go on, but I will not. The point is surely now registered with noble Lords. We have the chance between now and on Report not to turn this into yet another contested issue. There is feeling across the House that we need to put right this injustice. This is about putting right an old wrong and I hope the Government will attend to it.
My Lords, I briefly pay tribute to my noble friend Lady Lister of Burtersett for her campaigning on this issue and on so many related issues on behalf of the poorest and most vulnerable in our society. I also congratulate the noble Baroness, Lady McIntosh of Pickering, and other distinguished Members of the Committee on bringing this issue to the fore.
For me, the nub perhaps lies in the distinction between some comments that the Minister—the noble Lord, Lord Sharpe—made on the previous group about British nationality being a privilege and comments made in this group repeatedly by almost every speaker about the rights of these children or the rights of this or that group.
We all acknowledge that to be British is, in a colloquial sense, always a privilege in that we are proud and fortunate to be British. Whichever route we have taken, we are all very proud and fortunate, given the other places in the world where we could be. However, in the legal sense at least, in a number of cases—not all, but including those that the Government are attempting to deal with in Part 1—citizenship is a right. The Government’s intention seems clear in some of the early clauses to rectify previous injustices and to confer rights on people who should have them. It would be a terrible shame to do this and then to make the right illusory or difficult to access on the basis of a financial bar, particularly for children.
Noble Lords have approached this in slightly different ways, and different options have been made available in this raft of amendments for the Government to look at between now and Report. I urge Ministers, with all the controversy that I fear is inevitably coming on subsequent clauses, to see what they might do in relation to the rights that they are conferring here, if not to citizenship rights and fees more generally.
My Lords, there is obviously strong feeling on this issue across the House. I congratulate the noble Baroness, Lady Lister, on the work that she has put into this over the years. It is an important campaign. I sympathise with all the remarks that have been made by the noble Lord, Lord Alton, and others. This is an interesting and important issue. The problem is that the solution proposed does not work.
Very often, in these sorts of debates, it is proposed that the cost be related to the cost of registration or some aspect of that. The difficulty is that the cost can be manipulated. We never know what can go into the cost of producing a particular form or what overheads are involved. This is the difficulty; I have seen it again and again. In the end, the object is subverted by people manipulating the cost in such a way that they get the result they wanted in the first place.
My noble friend Lady McIntosh is right that we need some clarity from the Government in saying exactly what their proposals are in this area. I hope that when my noble friend the Minister replies and on Report we will get more clarity on this issue. I fully agree with the principle of what the noble Baroness, Lady Lister, is putting forward. The difficulty is with the suggestion that it should, first, be in primary legislation, with the inflexibility that it brings; and, secondly, that it is related specifically to the cost of registration, which can be manipulated. That is my concern and I hope the noble Baroness, who is about to rise to her feet with a charming smile on her face, will understand what I am saying.
I thank the noble Lord for his support of the principle, but is he suggesting that the Home Office would manipulate the cost in this way? The figure that we have is a Home Office figure. The Home Office tells us how much it costs to administer it, and therefore it seems reasonable that the fee should be linked to that. Ideally, I would like there to be no fee for this either, but that might be pushing things too far. Certainly, we are arguing for no fees for those who are in local authority care, but it is a Home Office figure, not a figure per person who is registering.
I appreciate that perhaps “manipulate” was the wrong word. I simply meant that events and costs can change over time. If you have it in an Act of Parliament, you cannot change it; you introduce inflexibility, which may in some instances work against you. Often the case is put forward that this is the right way to do it; I have seen a number of these instances, but it never works.
Forgive me, but is the noble Lord agreeing with me that, in relation to citizenship rights that the Government are seeking to confer on those who should have them, there should not be a fee at all?
I am sorry, but I did not quite follow the noble Baroness’s point.
Perhaps I can clarify. We all agree that we should know what the figure is. We are also seeking clarification from the Government Benches on why the fee is almost double the cost of processing the work. That is where there is a bit of a mismatch, if I have understood Members correctly.
My Lords, I say to the noble Lord, Lord Horam, that there is no suggestion of putting a figure in the legislation. The noble Baroness, Lady McIntosh of Pickering, is suggesting that there should be no fee at all, and the noble Baroness, Lady Lister of Burtersett, does not mention any numbers at all in her amendment.
You may not have a number, but costs can change from year to year; that is the point.
Absolutely, and I understand that that might be the case, but that is not the essence of either of the noble Baroness’s amendments. If I have not explained it by the end of what I have said, I am sure that the noble Lord will come back to me.
We support all these amendments, and I am grateful to Amnesty and many others for their briefings. As we have heard, and as the Explanatory Notes explain, Clauses 1, 2, 3 and 7 are aimed at ending anomalies in British nationality law, such as allowing women as well as men to pass on citizenship at the time of birth, including where the parents are not married. They also aim to allow the Secretary of State to grant citizenship where a person failed to become a British citizen and/or a British Overseas Territories citizen because of an historical legislative unfairness, such as an act or omission by a public authority or other exceptional circumstances—the Windrush injustices come to mind. But all these measures come to nothing if those entitled to citizenship cannot afford to pay the required fees to correct the injustice; hence Amendments 3 to 7, 18 and 19, in the name of the noble Baroness, Lady Mcintosh of Pickering. The Government accept that applicants have been unfairly treated, but they then continue to treat them unfairly by charging, in many cases, prohibitively high fees.
I pay tribute to the sustained and tireless work of the noble Baroness, Lady Lister of Burtersett, on this issue, and thank the noble Lord, Lord Alton of Liverpool, who summarised previous debates in the House so well. Amendment 13, in the name of the noble Baroness, Lady Lister, takes a slightly less generous approach than the amendment tabled by the noble Baroness, Lady McIntosh, but one perhaps more likely to be accepted, ensuring that the Home Office could charge only cost price for citizenship—still a considerable amount of money—or less in the case of children if the family cannot afford it.
I take this opportunity to clarify what is says: it says that no person may be charged a fee that is “higher than”. It is not saying that it should be the cost price. Given that, every year, the Home Office must look at the fees, I do not see that there is a problem. I am sorry to interrupt.
I am very grateful for that important clarification. The cost price is the maximum that should be charged, not the actual cost that should be charged.
There may be some difficulty around whether there is to be a means test, as implied by subsection (3), but the important addition to the amendments proposed by the noble Baroness, Lady Mcintosh—subsection (4) —is the requirement for the Secretary of State to raise awareness of the right to be registered as a British citizen or British Overseas Territories citizen. As Amnesty rightly points out, thousands of children grow up in the UK excluded from their citizenship rights because they are unaware that they are without British citizenship and need to exercise their right to be registered.
Citizenship should not be an optional extra. It is the right to have rights. It is not, as the Minister said on the previous group, a privilege. It is a right that these people have. It is also likely to make those who acquire it feel more included, and more likely to be loyal to this country, its laws, values and traditions. It is not just of value to those who acquire it but to everyone in the UK, and, as such, the cost of acquiring it should not fall solely on the applicant but on society as a whole.
My Lords, I express our support for the amendments in this group. The amendments in the name of the noble Baroness, Lady McIntosh of Pickering, raise a simple and crucial point. The intention of this part of the Bill, at least its early clauses, is to remove barriers for those who have been unjustly denied citizenship. To then present a barrier to that citizenship in the form of fees for accessing those withheld rights raises obvious problems. This is particularly, and one would hope undeniably, the case for those who would and should have been automatically granted citizenship if it were not for outdated injustices impacting their mother or the marital status of their father.
What has so far been missing from the Government is clarity on this issue. I understand that in Committee in the Commons, the Minister would not directly answer questions as to whether fees will be charged. I hope we may fare a little better today, with the noble Lord the Minister—if that is who responds—telling the House whether the Government intend to charge people to access these routes. Is the intention no fees, fee waivers in some cases, reduced fees from what we have now, or the continuation of existing fees? When and how will this be made clear? In the Commons, the Minister suggested that this was more appropriately dealt with in secondary legislation, but why should clarity not be provided in the Bill in relation to this key issue?
I express too our support for Amendment 13, in the name of my noble friend Lady Lister of Burtersett, with notable cross-party support from the right reverend Prelate the Bishop of Durham, the noble Lord, Lord Alton of Liverpool, and the noble Baroness, Lady Stroud. As has been said, to say that my noble friend Lady Lister of Burtersett has been tenacious on this issue would be the understatement of the year; she has been rather more than that.
The amendment tabled by my noble friend addresses a current fee policy that charges people who have the right to register for citizenship exorbitant amounts to do so. As has been said, the amendment does not ask the Government to scrap the fee for application; it simply requires the fee not to be higher than the actual cost of the registration process. As has been said, this means it could be fixed at a considerably lower level or there could be no fee at all.
In particular, I add our strong support for measures to reduce the cost for children to register their citizenship, which they have as much right to access as any Member of this House, and to remove the cost completely, certainly for children in our care. Although the Government have repeatedly resisted this change, it is not without Cabinet support, as has been said. After all, the Health Secretary has described the fees as
“a huge amount of money to ask children to pay”.
I repeat that these costs are levied against children who are born here, grew up here and go to school here but who, unlike their classmates, are not automatically British at birth. Surely it is the will of this Parliament and our nationality law that those children are entitled to citizenship after certain conditions are met. But, in reality, that right is being denied for at least some—probably many—because it is just too expensive for them to access. The Government have already been asked for information on the numbers who have been denied citizenship on the basis that the fees are too high. I am not sure whether we are going to get a response to that point.
There has been some discussion about the legal position. As has been said, in February last year the Court of Appeal, in referring to the best interests of the child, ruled that the child citizenship fee, at over £1,000, is unlawful. That had also been determined earlier by the High Court. A number of noble Lords commented that, instead of using the obvious vehicle of this Bill on citizenship to rectify the issue, the Government have argued—as I understand it—that they want to await a further ruling in the Supreme Court.
Finally, I admit my surprise that, in the Commons, the government Minister claimed that this issue of the cost of registering citizenship was
“not a matter for the Bill.”—[Official Report, Commons, Nationality and Borders Bill Committee, 19/10/21; col. 165.]
This part of the Bill is about access to citizenship. I question how the Government can say that this issue, which has been raised many times across both Houses and with cross-party support, should not be regarded as a matter for this Bill. I hope we have a helpful response from the Government when they now reply.
My Lords, I am grateful to the noble Baroness, Lady Lister of Burtersett, the right reverend Prelate the Bishop of Gloucester speaking on behalf of the right reverend Prelate the Bishop of Durham, and the noble Lord, Lord Alton of Liverpool, for tabling Amendment 13; and to my noble friend Lady McIntosh for tabling Amendments 3, 4, 5, 6, 7, 18 and 22 on fees charged for applications for British citizenship and British Overseas Territories citizenship. My noble friend the Minister would also like to place on record her thanks to the noble Lord, Lord Alton, and the noble Baroness, Lady Lister, for engaging with her on this subject in various meetings.
I first turn to the amendments put forward by my noble friend Lady McIntosh. You will be aware of the importance that application fees play in the funding of the migration and borders system, which has been noted in this debate, and that this income is vital to reduce the reliance on taxpayer funding and run a sustainable immigration system. Immigration and nationality fees are set in fees regulations, which are laid before Parliament and subject to the negative procedure. I hope that answers a number of noble Lords’ questions. If we were to remove or amend fees during the passage of the Bill, it would undermine the existing legal framework without proper consideration of the sustainability of the system and fairness to the UK taxpayer. Not only that, but it would create an alternative mechanism for controlling fees, which would reduce the clarity of the fee structure.
As the noble Lord, Lord Rosser, noted, I am of course aware that similar provisions were considered in the other place. We are sympathetic to the view that a fee should not be charged where a person missed out on becoming a British citizen due to historical anomalies.
In answer to the specific questions of the noble Lords, Lord Paddick and Lord Rosser, about those who cannot afford application fees, we have always provided for exceptions to the need to pay application fees for leave to remain in a number of specific circumstances. These exceptions ensure that the Home Office’s immigration and nationality fees structure complies with international obligations and wider government policy.
The subject of children in government or local authority care also came up. The Government do cater for children and their well-being. There are a number of exceptions to application fees, which protect the most vulnerable, including young people who are in the care of a local authority and applying for limited or indefinite leave to remain.
Does the Minister accept that there is a difference between leave to remain and citizenship? We are talking about citizenship, and the courts were very clear about the importance of citizenship. Please do not rerun the argument that leave to remain is as good as citizenship, because it is not.
Of course I accept the distinction. There is no arguing about that at all.
The noble Baroness, Lady Chakrabarti, raised the point that the provisions in this Bill are about righting historical wrongs, and I assure the Committee that it remains our intention to continue to adopt the approach of not charging fees in instances where unfairness or injustice has occurred. But as I tried to outline above, this is not a matter for the Bill. As my noble friend Lord Horam noted, it should be remedied through secondary legislation in line with other changes to immigration and nationality fees, as far as applications for British citizenship are concerned. Administration of British Overseas Territories citizenship applications is a matter for the overseas territories. We have consulted with them about the new nationality provisions; that applies to all the amendments except Amendment 13.
I apologise to the noble Lord. On the previous point about regulations for fees, the amendment of the noble Baroness, Lady Lister, in fact anticipates regulations. It limits the amount of fees that can be paid, but does not seek to use primary legislation to set the specific fee.
If we were to remove or amend fees during the passage of this Bill—I have said this before—it would undermine the existing legal framework, without proper consideration of the sustainability of the system.
Will the Minister clarify what he just said? The existing legal framework has itself been undermined by a decision of the High Court. Is that not something we now need to rectify? From the expression on the Minister’s face, I think he is coming to that and I am grateful to him. To return to the point that has been repeatedly made about not specifying the amount of money in the Bill, this amendment does not do that. It seeks to create a context in which fees can be charged, in which the cost is no more than the administrative cost. The point the noble Lord made about taxpayers is dealt with in this amendment. I hope he will concede that and, when he does, will he confirm the remarks by the previous Home Secretary that what is being charged at the moment is
“a huge amount of money”?
Is that the view of the current Home Secretary, the right honourable Priti Patel?
My Lords, that it is a lot of money is not in dispute. I am coming to the part that deals with the various reviews and the High Court judgment, so I hope the noble Lord will bear with me for a second. I think this will address his other questions.
Amendment 13 was put forward by the noble Baroness, Lady Lister, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Alton of Liverpool. I note that this new clause is identical to one considered in the other place. That the noble Baroness has put it to this Committee to consider leaves us in no doubt about the strength of feeling on this matter, and this debate has reinforced that.
Proposed new subsection (2) would prevent the Secretary of State charging a fee to register as a British citizen or British Overseas Territories citizen if the child is being looked after by a local authority. I just mentioned that as well. The Government already have waivers in place, which I referred to, that will allow any child looked after by their local authority, irrespective of nationality, to apply for both limited and indefinite leave to remain, which I accept is not the same citizenship, without being required to pay application fees. This ensures that children in local authority care can access leave to remain, and the benefits of living, working and studying in the UK, without having to pay a fee.
The noble Lord acknowledges that leave to remain is not the same as citizenship. When we last discussed this, the Minister, the noble Baroness, Lady Williams of Trafford, accepted that this is not an argument that this House will accept. Please do not keep putting that argument, because it does not wash here.
I assure the noble Baroness that I am not going to try it again today.
Proposed new subsection (4) would require the Secretary of State to take steps to raise awareness of rights under the British Nationality Act 1981 to be registered as a British citizen or British Overseas Territories citizen among people possessing those rights. The Government publish information about becoming a British citizen on GOV.UK and we are committed to ensuring that such information is fully accessible by all.
Going on to the Supreme Court, pretty much every speaker has alluded to the fact that child citizenship fees have been the subject of a legal challenge brought forward by the Project for the Registration of Children as British Citizens, and that this litigation has not yet concluded. We await the final judgment of the Supreme Court hearing, which took place on 23 and 24 June 2021, so that we can take proper account of the Supreme Court’s views. I believe that judgment is due next week, to confirm what I think has also been said here. In the meantime, the Home Office will continue to charge the fees set out in the Immigration and Nationality (Fees) Regulations 2018.
I am very sorry to interrupt yet again, but I pointed out that the appeal that has gone to the Supreme Court is a completely separate legal point from the one that requires the Home Office to carry out a best interests review. Why do the Government keep putting this argument when it has been over a year since the judgment? Why can they not produce the best interests review now? It has nothing to do with the appeal to the Supreme Court.
I was just coming to that.
The Government are currently carrying out a Section 55 assessment, in tandem with the best interests review, in relation to the child registration fees. I cannot predict the outcome of that assessment, but that does not necessarily mean that the fees will change. I cannot give the noble Baroness the assurance she seeks on when it will be published, but the reviews are ongoing.
Who is carrying out this review?
I cannot answer that, I am sorry. I will write on that.
I promise not to intervene again, but before the noble Lord leaves this point, is he not inviting the Committee to be like Don Quixote and to tilt at imaginary windmills? As the noble Baroness, Lady Lister, pointed out, this is not the substance of the continuing action in the Supreme Court. The question of the cost of the fees was dealt with by the High Court. The Home Office lost. Surely that is the issue that should be laid to rest in these proceedings.
With the greatest respect to the noble Lord, they are all part of the same debate. As I said, I cannot pre-empt the Supreme Court’s decision or the outcome of the ongoing review, for which I obviously apologise. I would like to give him the answer he seeks, but I cannot.
When the court has said that this is illegal, why do the Government not accept what the court has said? Or are the Government setting themselves up against the court and deciding that it is not illegal? If it is illegal, it should be changed at once.
Again, with respect to the noble Lord, we are awaiting the further judgment.
I am sorry, but the lawyers behind this are very clear that these are completely separate legal points. The people who appealed the Court of Appeal’s judgment were not appealing in relation to the best interests of the child. The Government accepted the best interests of the child judgment a year ago. Why do we still not have the best interests review? As the noble Lord, Lord Deben, said, surely the Government should have acted immediately once they accepted that it was unlawful to charge this fee without taking account of the best interests of the child.
As I said, I do not have the answer to why it has taken a year, but I will write to the noble Baroness and all noble Lords who have expressed an interest in this subject to try to explain.
Having said all that, I hope you understand that I cannot comment on the Supreme Court’s judgment. We remain of the view that it is the right course of action to wait until the judgment—I am sorry to labour the point. Accordingly, for the reasons I have given, I invite noble Lords not to press their amendments.
My Lords, first, we do not address each other as “you”. I know that the Minister is new to the House, but we do not use that term.
Secondly, there is a difference between an on/off decision about whether to charge a fee, as suggested by the Baroness in her amendments, and interfering with the current system, where the fee level is set by regulations. They are two different issues.
Thirdly, the noble Lord kept talking about interfering with the existing legislative framework. That is our job. We interfere with the existing legislative process by passing legislation. That is a nonsense argument.
Finally, the noble Lord talked about fees being waived in exceptional circumstances. People do not apply to register their right to British citizenship and then, when they take a look at what the fees are, say, “There’s absolutely no way that we can go ahead with this. We’re not even going to apply.” The fee being waived in exceptional circumstances does not even arise. Does the noble Lord not accept that?
The noble Lord said something about how the system relies on these fees. Could he clarify what he means? I hope he does not mean the immigration system, which is often referred to, because we are not talking about immigration here. Many of these children were born in this country.
I apologise for my inadvertent use of the word “you”. I feel suitably admonished. My apologies. To answer that question, it is the migration and borders system.
I am sorry, but that is irrelevant, because this is not about immigration. It is about the right to register for citizenship for children who have been born here or who otherwise have lived most of their lives here.
My Lords, I thank everybody who contributed to this debate. I thank my noble friend for his courteousness in giving as full a reply as he is able to at this time.
I acknowledge the indefatigable campaigning skills of the noble Baroness, Lady Lister, and the noble Lord, Lord Alton of Liverpool, and the work they have done. I am grateful to the right reverend Prelate the Bishop of Gloucester for sharing the concerns of the right reverend Prelate the Bishop of Durham and his work in this regard.
I will focus on one particular aspect of my noble friend’s reply. I will not get involved in the best interests review because that is a separate argument. We need a very clear undertaking that, if the Supreme Court is to rule on the appeal as soon as next week, the Government will come forward and let us know what the scale of fees will be. I accept that the amendments I have put forward are the more radical. They say that the fees should be waived for all the reasons given during the debate: they are proving a barrier to children who, as the Government Benches and the Minister have agreed—I welcome that—should be welcomed, and citizenship should be awarded to them provided they meet the conditions. I do not think that a fee of £400 more than the cost of the work being done is satisfactory. It is unacceptable.
In the words of the Law Society of Scotland and of the Constitution Committee, I urge the Government to clarify their intention on the amount of fees to be charged under the relevant clauses—Clauses 1, 2, 3 and 7—after the Supreme Court judgment is announced, and to come forward with an amendment in this regard before Report, otherwise I will feel obliged to retable the amendments. At this moment, I beg leave to withdraw the amendment.
Amendment 3 withdrawn.
Clause 1 agreed.
Clause 2: Historical inability of unmarried fathers to transmit citizenship
Amendments 4 to 6 not moved.
Clause 2 agreed.
Clause 3: Sections 1 and 2: related British citizenship
Amendments 7 to 9 not moved.
Clause 3 agreed.
Clause 4: Period for registration of person born outside the British overseas territories
Amendment 10 not moved.
Clause 4 agreed.
Committee adjourned until a convenient point after 2.15 pm.
My Lords, I probably should have consulted my absolutely authentic book of words, but I believe it is now clear that we wish to resume the Committee at a convenient moment after 2.15. I think I must have had a particularly bad night, and I do apologise to the House—no sympathy required—for the slight confusion. We will now take the lunchtime business.