Committee (1st Day) (Continued)
11: After Clause 4, insert the following new Clause—
“Provision for Chagos Islanders to acquire British nationality
(1) Part 2 of the British Nationality Act 1981 (British overseas territories citizenship) is amended as follows.(2) After section 17H (as inserted by section 7), insert— “17I Acquisition by registration: descendants of those born in British Indian Ocean Territory(1) A person is entitled to be registered as a British overseas territories citizen on an application made under this section if they are a direct descendant of a person (“P”) who was a citizen of the United Kingdom and Colonies by virtue of P’s birth in the British Indian Ocean Territory or, prior to 8 November 1965, in those islands designated as the British Indian Ocean Territory on that date.(2) An application under this section must be made before the date specified in subsection (3).(3) The specified date means—(a) in the case of a person aged 18 years or over on the date of coming into force of this section, five years after the date of coming into force of this section, or(b) in the case of a person under the age of 18 years on the date of coming into force of this section, before they reach the age of 23 years.(4) A person who is being registered as a British overseas territories citizen under this section is also entitled to be registered as a British citizen.(5) No charge or fee may be imposed for registration under this section.””Member’s explanatory statement
This amendment would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British overseas territories citizen. They may also register as a British citizen at the same time. Both applications would be free of charge. The application must be submitted within 5 years, or in the case of a minor born before the date of coming into force, before they reach 23 years old.
My Lords, I thank the noble Baronesses, Lady Ludford and Lady Bennett of Manor Castle, and the noble Lord, Lord Woolley of Woodford, for their support for the amendment. The amendment would extend the right to register as citizens to the descendants of Chagossians exiled from their homeland, subject to a time limit. I am grateful to Rosy Leveque of BIOT Citizens for her help with it, and to Chagossian Voices for its briefing.
To understand the case for this amendment, a bit of history is necessary. Back in the 1960s and early 1970s, the inhabitants of the Chagos Archipelago—a British Overseas Territory which became part of the British Indian Ocean Territory—were evicted by the then British Government to make way for a US airbase on Diego Garcia, the largest of the islands. They have never been allowed to return. Not only did they lose their homeland, but their grandchildren and other descendants have no right to British Overseas Territory citizenship and, therefore, to British citizenship. Only those born on the islands and the first generation born in exile have such a right. I should perhaps make it clear that the right to citizenship should not be confused with the quite separate right of return, which is not affected by this amendment, important as it is.
The Chagossians were deported to Mauritius and the Seychelles and now around 4,000 live in the UK, but because of the unjust citizenship rules many are undocumented and children have been and continue to be deported. Families have been broken up and communities are divided, as some members have access to citizenship rights while others do not. This has caused hardship for many and has aggravated the trauma associated with exile. The lack of citizenship rights has created insecurity and made it harder to integrate into local communities.
In the Commons, in Committee, the Minister, Tom Pursglove, expressed some sympathy for the case made for the extension of citizenship rights and acknowledged that
“the Chagossians present a unique case.”—[Official Report, Commons, Nationality and Borders Bill Committee, 4/11/21; col. 644.]
He said he would “reflect further”. It all looked rather hopeful but when the Conservative MP, Henry Smith, raised the issue on Report, what looked like a half-open door was slammed shut by the Immigration Minister, Kevin Foster, which was very disappointing. Mr Smith emphasised the anomalies created, the injustices caused and that we are talking about no more than a few hundred to the low thousands of people who would benefit. So far, BIOT Citizens has identified 500 descendants. What is at stake is a small concession but one that would make a huge difference to the lives of those affected. It would also have symbolic importance for a people who have lost their homeland through no fault of their own.
Mr Smith’s amendment was rejected in a single paragraph. There appear to be two strings to the Government’s case. The first is that the amendment
“would undermine a long-standing principle of British nationality law … under which nationality or entitlement to nationality is not passed on to the second and subsequent generations born and settled outside the UK and its territories, creating quite a major precedent.”—[Official Report, Commons, 7/12/21; col. 258.]
I am sure noble Lords can spot what a specious argument this is in this context. The only reason the Chagossians in question do not meet this condition is because they are descended from people who were evicted against their will from a British Oversees Territory. Forced and continued exile prevents them from meeting these long-standing conditions. It is not clear that the Government really understand this, but as the Junior Minister acknowledged in Committee, it is “a unique case” so no precedent would be set, unless the Government have plans to evict others from their British Overseas Territory homelands. I hope and trust that, if the noble Baroness—I think it is the noble Baroness—the Minister has been briefed to use this argument, she will scrap it now.
The second government concern is more credible. They do not want to create an open-ended right in the way that the Commons amendment did, and I think that is reasonable. This amendment therefore creates a five-year time limit for applications, following the Windrush precedent in the British Nationality Act 1981. Those aged under 18 at the time of enactment will have up until the age of 23. I am offering the Minister an opportunity to add something positive, that would be widely welcomed, to a Bill that—with very few exceptions to be found in this part of it—has been widely condemned. If this particular way of capping entitlement is not to the Government’s liking I am, of course, open to discussions about alternative means, such as a generational cap. I very much hope that the Minister will accept the amendment or a revised version of it for Report. Is she willing to meet virtually with me and other signatories to the amendment and those advising me to discuss how we might proceed? I plan to return to the issue on Report to try to put right what Henry Smith MP correctly described as an “appalling injustice”. I beg to move.
My Lords, I thoroughly endorse what the noble Baroness, Lady Lister, has said, and I am very pleased to co-sign this amendment. In the first two groups that we discussed this morning, we talked a lot about righting injustices. This is an opportunity to right a gross historic wrong—a forced eviction and exile that was, indeed, ruled illegal by the International Court of Justice in 2019.
I was one of those who raised this issue very briefly at Second Reading. I do not think the Minister referred to it in her response, although I know she had a lot of issues to cover. It should be noted, though, that the amendment in the other place from Henry Smith MP at Report stage, which the noble Baroness, Lady Lister, referred to, had the sizeable support of 245 Members, displaying the strength of feeling about the trauma and hardship of the Chagossian community that the noble Baroness, Lady Lister, referred to.
The all-party group on Chagos is a strong and active group that has long campaigned to right, in so far as is possible, the wrongs of the 1960s when, having resisted independence from Mauritius, of which Chagos was part, Britain secretly acceded to an American request to make one of the islands, Diego Garcia, available on a long lease as a “communications hub”. Of course, it later became notorious as a site for rendition flights. Anyway, the then British Government of, I am afraid, Harold Wilson, detached Chagos from Mauritius and then emptied Chagos, chucking out its inhabitants. This appeared, apparently, to be compensation for the Americans for the UK declining to get involved in the Vietnam War.
The saga is littered with lies and about-face. The UK told the UN that the Chagos Islands had no permanent population and the Chagossians were merely contract labourers. The British Indian Ocean Territory—BIOT—comprising all the Chagos Islands was detached from Mauritius and, between 1968 and 1973, the entire population of Chagos was removed. Some 2,000 people were deported to Mauritius, some went to the Seychelles and some arrived in the UK, particularly in Crawley, perhaps because it is near Gatwick, in Sussex.
As was discussed this morning, the purpose of Part 1 of this Bill is to address long-standing discrimination in British nationality law. I put to the Committee that Amendment 11 fits perfectly in this context. The original appalling injustice of the late 1960s and early 1970s perpetrated against the Chagossians has been compounded ever since, not only by their continuing enforced exile from their homeland but by the deprivation of their descendants of their citizenship rights. Had they not been evicted but had stayed in BIOT, they would have passed British Overseas Territory citizenship from generation to generation and some would have had the entitlement to be registered as British citizens or at least benefited from the Home Secretary’s discretion to so register them.
As the noble Baroness, Lady Lister, said, Ministers in the other place have provided no justification for resisting the rectification of this injustice suffered by the Chagossians. The Government simply rely, in a sense, on the injustice of eviction to perpetuate the injustice. Because we had chucked them out, they were not BIOT citizens and so they cannot benefit from any subsequent citizenship rights. The Government now have an opportunity with this new clause to make substantial amends—hardly complete amends—for the wrongs done half a century ago. I suggest that it is wrong to seek to assert that correcting the nationality law consequences of this wrong would create any wider precedent, as the noble Baroness said.
By the way, if anyone wants to read the history of the UK’s perfidious treatment of the Chagossians, I recommend this booklet of a lecture by Professor Philippe Sands QC entitled Chagos: The Last British Colony in Africa – A Short History of Colonialism, a Modern Crime Against Humanity? and I will give this to Hansard so it can correctly identify it. I urge the Minister to give a positive response.
My Lords, I apologise for not being able to speak at Second Reading. I strongly support Amendment 11, which has cross-party support. I speak as a vice-chair of the All-Party Parliamentary Group on the Chagos Islands.
My noble friend Lady Lister explained powerfully and clearly the position of this small number of people, whose ancestors were wrongly deported from their island homes and who have been caught up in big-power politics, denying them the basic human rights that we in your Lordships’ House enjoy. The noble Baroness, Lady Ludford, gave the whole context.
The fact is that, although all UK Governments agree that the exile of the Chagossians from their island homes 50 years ago was wrong and unjust, the present Government continue not to allow resettlement. They cite a range of reasons for continuing this injustice, including conservation, finance, feasibility, security and defence. This is irrespective of the fact that it is well known that the American base on Diego Garcia would not be threatened or impeded by resettlement on the 54 outer islands. Indeed, the UK Government committed in their 1965 Lancaster House agreement to returning the territory
“to Mauritius when no longer needed for defence purposes.”
The outer islands are not part of the defence framework. Conservation could be maintained by the Chagossians, as happens in other marine conservation areas, and there are various avenues for assistance with resettlement costs.
It is political will and respect for human rights that are lacking. This Government are acting in defiance of the UN charter on decolonisation and United Nations General Assembly resolutions, and contrary to the opinion of the International Court of Justice and the decision of the tribunal of the UN Convention on the Law of the Sea, in their obdurate refusal to countenance resettlement for this, I repeat, small number of people.
The all-party group strongly supports the international rule of law and the right of return. In respect of this amendment, which follows from all the events we have set out, we firmly believe that, until resettlement is permitted, Chagossians should not have to endure having loaded on them the further injustices that this amendment would remove: the separation of families, deportation and the unreasonable costs of excessive fees. The Government adopting this modest amendment, Amendment 11, would at least go some way to ameliorating the acknowledged injustice that Chagossians have endured by their exile.
My Lords, as I did this morning, I express great sympathy for the point of view expressed so eloquently and passionately by the noble Baroness, Lady Lister. As she rightly said, the amendment moved in the other place was voted down because it contradicted one of our long-standing, century-long principles for who becomes a British citizen. However, as she pointed out, the new amendment deals with the point made in the other place by putting a limit on the applicability of the proposal, which is good. So we are in a better place than we were then. The noble Baroness also offered to talk, if possible, to see whether there is any other way forward on this problem.
I am also a member of the All-Party Parliamentary Group on the Chagos Islands. I have great sympathy for their position; it is indeed a terrible plight. An evil deed was done to those people. We are talking about perhaps only 500 people now in this context; there are more Chagossians in history, but there are only about 500 of them in this particular category at the moment.
Of course, the real villain here—my noble friend the Minister will be glad to know this—is not the Home Office; it is the Foreign Office, which, frankly, behaved disgracefully. When it examined this matter, the International Court of Justice voted 116 to six against us. For heaven’s sake, you can hardly have a bigger majority than that; I suppose you could have 192 to one or something—that is how many nations there are in the United Nations—but it was a comprehensive defeat. Not only that but, as previous speakers have pointed out, the United States Government are helpful on this matter, and the Mauritian Government have pointed out that they are willing to give the US Government a 99-year lease if they wish to carry on having a base on the island. Every base is covered. There really is no case for the Foreign Office to resist doing the right thing. Frankly, it is costing us in the international arena when we are so completely in the wrong on this issue.
I happened to read—I am a bit of a nerd in this respect—Sir Alan Duncan’s diaries. I am probably the only person here to have done so—perhaps I see another who has, over there. They were quite interesting—too long, but interesting none the less. He indicated the contempt with which the Foreign Office holds this point of view: it simply says that the International Court of Justice’s decision was advisory. We know that, so why does the Foreign Office not take some advice for once? This is doing us huge damage internationally. There really is no downside to agreeing to a new deal, acceding to the demands of the Mauritian Government and dealing with the Chagossian case.
My noble friend on the Front Bench will be glad to know that, ultimately, this is not her responsibility. None the less, here is an issue that the Government could grasp at the right level, and should do so.
My Lords, I congratulate the noble Baronesses, Lady Lister, Lady Ludford and Lady Bennett, and the noble Lord, Lord Woolley, on laying this amendment. I was not familiar with this issue until it was brought to my attention, but I hope that my noble friend on the Front Bench will be able to take it seriously and address it.
I understand that the British Overseas Territories Act 2002 granted British citizenship to Chagossians who were resettled, but only if they were born in the 13-year window from 1969 to 1982. This has left families divided. For example, Jean-Paul Delacroix was born in 1968, and is the oldest of his siblings. At the age of 64, he wants, but cannot obtain, British citizenship; his siblings can. Having been refused, he is now here illegally and cannot even work to support himself.
In 2017, my honourable friend in the other place, Henry Smith, introduced a Private Member’s Bill—which has still had only its First Reading—and then laid in the other place the amendment to the Bill that has been referred to by noble Lords. As has been said— I find it difficult to understand their argument—the Government’s rationale for rejecting Chagossians’ right to British nationality relies on the cause of the injustice while refusing to correct it. Having forcibly resettled 3,000 individuals at the time, the injustice seems to be being compounded by refusing the small number of people who want, and I would argue deserve, to be in receipt of citizenship that opportunity. This Bill represents a chance for the Government to act on a long-standing injustice.
Amendment 11 would correct the nationality law consequences of exiling the Chagossians. Only those born there or born in that 13-year window can currently claim citizenship, but the amendment in the name of the noble Baroness, Lady Lister, would give the opportunity to all those who were born there. The five- year, time-limited window tries to address the Government’s concerns. Like my noble friend Lord Horam, I understand those concerns, but the Chagossians represent a unique case. It is hard to see this setting a precedent. I urge my noble friend the Minister to consider this concession before Report.
My Lords, my noble friend Lady Bennett of Manor Castle signed the amendment and has asked me to speak in her place as she is unable to be here.
This is obviously a 50 year-old injustice, inflicted by the UK—by the Foreign Office, as the noble Lord, Lord Horam, suggests, so it might have been good to have a Minister from the Foreign Office here to answer our points. What was done to the Chagos Islanders—deprivation of their lands, dispossession of their community, chaos brought to individual lives—was not limited to one or two generations; it has gone on and on. True reparations would involve the right of return. This is not special circumstances or special treatment. This is justice that we can deliver, albeit very, very late. Simple justice ensures that we take responsibility for people whose lives we took control of without their consent. I hope the Minister can take this back and ensure that it becomes part of the Bill.
My Lords, I declare my interest as a founder member and, like the noble Baroness, Lady Whitaker, a vice-chairman of the Chagos Islands All Party Parliamentary Group. Having once had the pleasure of meeting the Chagos Islanders based in Mauritius, I rise to strongly support this amendment. As the noble Baroness, Lady Lister, and the noble Lord, Lord Horam, have explained, this issue is an international scandal for which the Government are entirely responsible.
My Lords, I did not have the opportunity to speak at Second Reading and I apologise for that. I declare my interests in the register and want to clarify that I am speaking in a personal capacity, and I will keep my intervention very brief. I agree with every speech that has been made today, but I particularly want to reference some points made by the noble Lord, Lord Horam.
I gave a speech at the Mauritian Foreign Ministry in 2019 in advance of the United Kingdom’s court case. While my speech was wide-ranging about international affairs and Britain’s role in the world generally, I was astonished by the strength feeling that the people present, mainly civil servants working in the Foreign Office, had about this issue. They were not all affected by the Chagossians’ claims—some were, some were not—but there was a national sense of disbelief that a law-abiding, rules-abiding great power in the world was behaving in this shabby manner towards a very small number of people.
I want to pick up on one point raised by the noble Baroness, Lady Lister, about the reason given by the Minister in the House of Commons as to why he would not support the amendment moved there. He said that it would overturn, and set a precedent over, years of British nationality law. My simple response to that is: the Government profess that we are increasingly bringing rights home, in terms of their assessment of the Human Rights Act and so on. But, as the noble Baroness knows very well, our courts are increasingly taking account of precedent with regard to Ministers’ intentions when they speak in both Houses of Parliament —and Parliament’s intentions when it decides to do whatever it decides to do.
So, if she has concerns similar to those expressed by the Minister in the House of Commons about setting precedent, all she would need to do when this Bill comes back to the Chamber on Report is to make it clear in her speech that she does not intend this Act—a humanitarian Act—to set a precedent in any other way. That is all she has do to reassure the House, and the courts will take account of that. I hope she will listen with great sympathy to the speeches on this matter across the House today, because that is what this small number of people deserve from us.
My Lords, as we have heard from my noble friend Lady Ludford, the Chagos Islanders were evicted by the UK Government in the late 1960s and early 1970s to make way for a US naval base, and they are still exiled from their homeland. I would say to the noble Lord, Lord Horam, there are two separate and very distinct issues here. The first, as the noble Lord quite rightly says, is giving the Chagos Islands back to the islanders, which is very much an issue for the Foreign Office. This amendment is about giving Chagos Islanders nationality, and that is very much the responsibility of the Home Office, not the Foreign Office. I would also say, in response to the last speaker and to the noble Lord, that century-long precedents are not necessarily good precedents.
One impact of the eviction has been to deprive descendants of their citizenship rights. The Chagos Islands remain a British Overseas Territory and, as we have heard, were it not for the eviction, they would have passed British Overseas Territories citizenship from generation to generation. In certain circumstances, they could have acquired entitlement to be registered as British citizens and, since 2002, they could have benefited from a general discretion from the Home Secretary to register as British citizens.
As the noble Baroness, Lady Lister of Burtersett, said, the Government’s objection in the other place does not hold water. The situation of the Chagos Islanders is unique and, while the other measures in this part of the Bill to address historic injustices are welcome, they are incomplete without the amendment of the noble Baroness, Lady Lister of Burtersett, which we wholeheartedly support. As the noble Baroness explained, it is narrow in scope, focused exclusively on the Chagos Islanders’ direct descendants and limited to a five-year window, either from the date the amendment comes into force or five years from when the eligible person turns 18. The Minister will have to do more than simply repeat the words of her colleague in the other place to convince noble Lords not to pursue this matter further on Report.
I would like to express our support for this new clause. I wish to be clear about its objectives and will read from the Member’s explanatory statement:
“This amendment would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British overseas territories citizen. They may also register as a British citizen at the same time. Both applications would be free of charge. The application must be submitted within 5 years, or in the case of a minor born before the date of coming into force, before they reach 23 years old.”
As we have heard, the proposed new clause is intended to rectify a long-standing injustice which impacts descendants of the Chagos Islanders who were forcibly removed from British Indian Ocean territory in the 1960s. I too wish to express my appreciation and admiration of all those who have been raising and pursuing this issue over a number of years, not least my noble friend Lady Lister of Burtersett and the noble Baroness, Lady Whitaker—although I know they are not the only ones who have been working on behalf of the Chagos Islanders.
The issue has significant cross-party support, and the case for this change was powerfully made by a Member of the Minister’s own party in the Commons, Henry Smith MP, who was supported by Members across that House. The clause, as I have indicated, would extend the right to register for citizenship to the grandchildren and other descendants of this population, and it would, as has been pointed out, apply to only a small number of people.
In the Commons, the Minister’s response was not too encouraging, suggesting that this would be too significant a departure from existing law. However, he did say that the Government had heard the strong points made and would
“continue to consider what more we could do, particularly given the low uptake of the £40 million Foreign, Commonwealth and Development Office fund designed to assist this diaspora community, and we will certainly be keen to look at that and, potentially, at how it could allow those people to settle here in the UK.”—[Official Report, Commons, 7/12/21; col. 258.]
What consideration of this issue has since occurred across Government? What have Ministers settled on as to
“what more we could do”?
In recent years, we have raised significant concerns about this Government’s ongoing foreign and defence policy as regards the Chagos Islands. The Bill provides an opportunity for a distinct and limited change to our own law—one which would have a significant impact for those affected by half a century of injustice. This is surely a unique case. Frankly, we are not setting a precedent, which is what the Government seem to have been arguing to date.
My Lords, I thank all noble Lords who have spoken in this debate. I hope that, at the end of my response, they will feel that I have at least given a partly positive response. I am aware that the noble Baroness, Lady Ludford, did not refer to this at Second Reading, but I am very grateful for the discussion we had—I think only yesterday—about this and other matters. I found it very helpful.
I, too, understand the strength of feeling being expressed. I both sympathise and empathise with the residents of the Chagos Islands about how they were treated back in the 1960s and 1970s. I also agree with the noble Baroness, Lady Lister, that return and citizenship are two different matters in relation to the Chagossians.
We recognise that some former residents of what is now the British Indian Ocean Territory missed out on rights to British nationality when legislation was last passed in 2002 to address the nationality of the Chagossians. Section 6 of the British Overseas Territories Act 2002 granted British Overseas Territories citizenship and British citizenship status by descent to any child born on or after 26 April 1969 and before 1 January 1983, where the mother was a citizen of the United Kingdom and colonies by virtue of her birth in the British Indian Ocean Territory. This measure reflected the removal of the Chagossians from the British Indian Ocean Territory and the fact that the mother of a British Overseas Territories citizen could not pass on her citizenship to a child born outside of the UK or a UK territory. The Chagossian community, however, has criticised this provision because it did not provide for circumstances where women left the BIOT before 26 April 1969 in anticipation of being required to leave, nor did the provision allow children to inherit citizenship from an unmarried BOTC father.
Here is the partly positive response to these concerns. I am pleased to say that the Nationality and Borders Bill currently makes provision to extend BOTC and British citizenship rights to any second-generation Chagossians who were not able to acquire citizenship through their mothers or unmarried fathers, due to discrimination in nationality law.
The issues are complex. As one noble Lord pointed out, some family members in the same generation hold British nationality while others do not. I agree with my honourable friend the Minister for Safe and Legal Migration, who stated in the other place that the Government are keen to consider what more we can do to support families seeking to settle here under the current system. Minister Foster has said that he is open to considering how we might use the FCDO £40 million fund package to support the Chagossians settled in the UK.
I must point out the position that successive Governments have expressed on this point. Amendment 11 would undermine the principle in our nationality law that applies to all other descendants of British nationals. Second and subsequent generations, born and settled outside the UK and its territories, do not have a right or entitlement to register as British nationals. I know that the amendment from the noble Baroness, Lady Lister, seeks, as she said, to limit the right to register as a British national to current generations who must apply within a limited timeframe. This does not alleviate the Government’s concern that offering this right is contrary to long-standing government policy. It goes further than the rights available to many other descendants of British nationals settled elsewhere around the world.
The noble Baroness requested that I meet her and others interested in this matter. I always follow up on requests from noble Lords and I am very happy to meet her. We will consider the point raised by my noble friend Lord Horam about what more we can do to address concerns about the Immigration Rules. My noble friend Lady Altmann raised a point about citizenship. Of course, those without citizenship become overstayers. These are complex issues. As I said in reply to my noble friend Lord Horam, we are happy to consider what more we can do through the immigration system.
In the light of the eloquent and compelling speeches made in this debate, does the Minister concede a distinction between people who leave a territory to settle elsewhere and people who are forcibly evicted from that territory?
I do not think that anybody in this Committee would say that what happened to the Chagossians was, by any means, acceptable to them personally. I do not think I was trying to make that case.
My Lords, I thank everyone who has contributed to this debate. It is fair to say that there is unequivocal support across the Committee—perhaps not for the exact wording of the amendment, but for what it is trying to achieve. Noble Lords spoke very strongly. It is unusual for nothing to be said in opposition to what is trying to be achieved.
The Minister expressed her sympathy and empathy. I am afraid that butters no parsnips when it comes to what the Chagossians rightly want. As other noble Lords have said, this is a question of justice and human rights. My noble friend Lady Chakrabarti asked a pertinent question about the distinction between those who choose to leave a British territory and those who are forced out. The Minister has accepted that a wrong was done. Whichever Government were in power—I know it was my party—we share the shame. Here is an opportunity, not to put it right but at least to do something tangible that will go some way towards putting one aspect of it right.
I am desperately disappointed that the Government are still using the argument that, because the Chagossians are in the wrong place, they are subject to a long-standing principle of British law. What other group of people has been forcibly evicted in this way? As I said, we are not setting a precedent because I assume we are not planning to evict anybody else.
I thank the Minister for the offer of a meeting. Perhaps we could take a cross-party delegation to reflect the strength of feeling across the House. I hope she will think again. If not, I shall want to bring this back on Report.
My noble friend Lady Whitaker has been supporting the Chagossians for many years; I am relatively new to this issue and the legal position is extremely complicated. I may not have it completely right but there is a principle of justice and human rights, which has been recognised across the Committee. We must use this legislation to put it right. As a number of noble Lords have said, there is no better place than this part of this Bill, which is about putting right historical discrimination in nationality and citizenship law. Having said that, I beg leave to withdraw the amendment for now.
Amendment 11 withdrawn.
Clause 5 agreed.
Clause 6: Citizenship where mother married to someone other than natural father
Amendment 12 not moved.
Clause 6 agreed.
Amendment 13 not moved.
Clause 7: Citizenship: registration in special cases
14: Clause 7, page 9, line 36, at end insert—
“(1A) In section 1 (acquisition by birth or adoption), in subsection (5)—(a) in paragraph (a), for “minor” substitute “person”, and(b) after paragraph (b), for “that minor shall” substitute “that person or minor (as the case may be) shall”.”Member’s explanatory statement
This amendment seeks to bring British nationality law in line with adoption law in England and Wales. In those nations, an adoption order made by a court may be made where a child has reached the age of 18 but is not yet 19. Yet such an adoption order currently only confers British citizenship automatically where the person adopted is under 18 on the day the order is made.
My Lords, I beg to move Amendment 14, in my name and that of the name of the noble Lord, Lord Russell of Liverpool, and will speak to Amendments 15, 16, 19, 20, 23 and 24 in this group. The noble Lord apologises to the Committee—he is unwell and had really wished to be here—but I hope that the discussion this afternoon will not be an end of the matter. He and I are keen to rectify an anomaly of which he became aware through his association with Coram, and it is also a concern of the Immigration Law Practitioners’ Association. There are not a large number of people affected by the point we raise but, as the noble Lord says, that is no reason to ignore a matter of principle. He suggested that we flag this up and that we might discuss it with the Minister before Report. We are lucky enough to have a Minister whose diary secretary must go mad when she hears the commitments being made during Committee days.
The issue is another anomaly. British nationality law in England, Wales and Scotland—Northern Ireland is in a different situation—is not in alignment with adoption law. In England and Wales, an adoption order may be made where a child has made an application before reaching the age of 18, as long as they are not yet 19. In Scotland, an adoption order may be made in respect of someone over the age of 18, as long as the application was made when the person was under 18. An adoption order confers British citizenship automatically only when the person adopted is under 18 on the day it was made. As the noble Baroness, Lady Lister, said very forcefully earlier, citizenship is significant: it is about belonging as well as being a technical matter.
Coram gave the example of a young woman who completed her degree at Oxford after her mother had died of cancer, and her maternal aunt, a British citizen resident here, applied to adopt the young woman before she turned 18. The High Court ordered the adoption when she was 18 but not yet 19. I understand—and this must be quite unusual—that the Secretary of State for the Home Department was represented and did not oppose the adoption order, but the relevant section of the British Nationality Act did not operate to confer British citizenship on her, so she was left with student status due to end shortly after her degree was obtained, no basis on which she could continue to enjoy family life in the UK with her adoptive mother, and Immigration Rules making no provision for someone in her position because she did not have 10 years continuous lawful residence in the UK. I have been given other examples but I am sure noble Lords get the point—and I can see from the Minister’s face that she does.
In each of the years 2019, 2020 and 2021, there were 10 adoptions of people aged over 16; we do not have the figures for those aged 18 and over. We all know through adoption practices that relatively few children of that sort of age are adopted, so we are not suggesting anything major in terms of numbers. The average time taken in the adoption process from placement through to final adoption can be very long. When this issue was raised in the Commons, the Minister said that he was “sympathetic” but that the reasons for the amendment were not ones to be advanced. The Government said that an adult would normally be capable of making their own life choices, but I have just given an example of when an over-18 could not do so.
The point of adoption is the family: the emotional and psychological connection, as well as recognising the legal unit. After all, the point about citizenship is recognised by our law, because there is automatic citizenship for only very slightly younger people. I find it difficult to believe that Parliament intended to withhold citizenship from such a small cohort. Years ago, I was associated with an adoption agency, and I came to understand something of what adoption means to everyone in the family. It would be ungenerous of the Government if they were to resist correcting this anomaly, which, as I said, cannot have been anybody’s intention.
Turning to the other amendments, Amendment 15 to Clause 7, which contains new Section 4L, would take out the words
“of full age and capacity”.
This is not consequential on the good character point we have been debating—although I think it is suggested that it is—but it does stem from the same point. If you are entitled to citizenship, why should full age and capacity be required? It occurred to me last night that I might be misreading the new section. Perhaps “of full age and capacity” is directed only to whoever is making the application, rather than the person on whose behalf it is made. I am slightly confused about that, because I think it could be read in two ways, but I will pursue the point today so that we can perhaps look at it between now and Report. If the Government are concerned that someone not of full age or capacity should not be initiating the process, that is a different point, but I trust that they are not suggesting that age or capacity are requisites for citizenship.
Amendment 16, to the same new section, would change the word “may” to “must”—a familiar point to your Lordships—so that the Secretary of State would not have discretion in the special circumstances dealt with by the new section. Amendments 19 and 20 make the same point later in the Bill. Amendment 23 is also about an issue of discretion. Section 44 of the British Nationality Act provides that any discretion
“shall be exercised without regard to … race, colour or religion”,
which seems quite dated when you read it in 2022. We are proposing guidance, following consultation—which is important—on the exercise of the Secretary of State’s discretion under the various new British Nationality Act provisions and under Section 44A, which is about the waiver of requirement in respect of a specified applicant if the Secretary of State thinks it is in the applicant’s best interest. As I am making clear, discretion should be irrelevant when rights are the issue, a point which my noble friend Lord Paddick emphasised a few minutes ago.
Finally, Amendment 24—also suggested by the Immigration Law Practitioners’ Association—is a new clause which was debated in the Public Bill Committee in the Commons. We have retabled it to enable a response to what the Minister said in the Commons. There are people who would be British overseas citizens today but for historical unfairness. Clause 7 attempts to rectify the position for those who would be British citizens or British Overseas Territories citizens but for similar errors. It does not do anything for people who would be British overseas citizens today. Again, this is an attempt to deal with an anomaly.
The Home Office acknowledges—we have seen it in the Bill—that past unfairness in British nationality law is not unusual, but it makes that acknowledgement only where such persons would be British citizens or British Overseas Territories citizens today. The prejudice that has been suffered through sex discrimination and so on has applied to them too. There are pockets of British overseas citizens around the world and, although they have no right to come to the UK or to remain in a British Overseas Territory, the status still has value. It enables them to acquire and use of a UK BOC passport; to seek consular assistance; to seek residence and permission to work in third countries under local rules; and where their children are born stateless, to benefit from UK laws that reduce statelessness. This was relevant in Aden, now Yemen, for instance, when it was a British colony.
The Government’s objection to the new clause in the Commons was in effect that being a British overseas citizen reflects a finite class of British nationality. In fact, new BOCs—it seems tough to use such an impersonal acronym—are being born to BOC parents, where they would otherwise be stateless, and there is still a power to register a minor as a BOC, but it is used only exceptionally.
I hope that the Minister will, ideally, accept the amendment, but, if that is not possible today, that she will take on board the response of the practitioners, who in my experience always know what they are talking about and can express it better than through an interpreter like me. They make the point very clearly. I beg to move.
I would like in particular to add our support for Amendment 14 in the names of the noble Lord, Lord Russell of Liverpool, and the noble Baroness, Lady Hamwee. We hope that the noble Lord, Lord Russell of Liverpool, is feeling a lot better very soon.
Labour’s shadow Minister raised this issue in the Commons and received disappointing answers. As we have heard, the amendment would put right a discrepancy in our nationality law and adoption law. Currently, an adoption order can be made where a child has reached the age of 18 but is not yet 19, but the same adoption order can confer British citizenship only where the child is under 18. In the same order, our law provides that a person is a full member of their adopted family but also that they are not, because they cannot share citizenship with them.
The answers given by the Minister in the Commons were that 18 year-olds are
“capable of making their own life choices”,
that they can
“purchase alcohol, accrue debt, join the Army, or vote in an election”,
and so they are
“fully fledged and can theoretically live independently of other family members”.—[Official Report, Commons, Nationality and Borders Bill Committee, 19/10/21; col. 190.]
On that basis, is the Government’s argument that at 18 someone is young enough to be adopted and provided for in our adoption law, but at the same time too old to really be an adopted child and be recognised in our nationality law?
The Minister in the Commons also argued that this change would be “out of step” with existing nationality law. One can only comment that this amendment is not seeking to make a general change to our law. By its nature, it is a completely limited, clearly defined provision for a small number of children who are going through our adoption system. It is difficult to see why this would be controversial rather than a common-sense change.
I also welcome the amendments in the name of the noble Baroness, Lady Hamwee, and her questions to the Government. We await the response with interest. We welcome Clause 7 and recognise that its aim is to provide a means to correct further injustices, but our concerns are, first, to make sure that the clause is used and is not just a token power which the Secretary of State “may” choose to action. That is probed by Amendments 16 and 20. Will the Minister clarify whether it is the Government’s intention that the Secretary of State may choose not to allow for a person to be registered as a citizen in a case where they have been subject to a historical injustice?
Secondly, we wish to be sure that this clause is rightly a reactive and fleet-of-foot mechanism to respond to newly identified problems but that it is not an excuse to avoid making further changes in the law where these are necessary. Where a further injustice or any flaw in our nationality law is identified, the Government must amend the law to rectify that. No doubt, the Government could say in their response whether that is their intention.
On the question of the inclusion of British overseas citizens in the provisions of Clause 7, addressed by Amendment 24, the ministerial response in the Commons was unclear. At the same time, the Minister seemed to claim that the clause needed to be as flexible and unfettered as possible but also that it was right to put limits on it; to not include cases which may arise on British overseas citizenship. That would appear somewhat contradictory.
We support the amendments and await answers to the questions raised by the noble Baroness, Lady Hamwee. I hope the Minister will also respond to my questions on this group of amendments.
I thank noble Lords for tabling these amendments to Clause 7, which will allow the Home Secretary to grant British citizenship to those who would have been, or been able to become, a British citizen, but for historical legislative unfairness, either an act or omission of a public authority or their exceptional circumstances. It also creates a similar route for governors in overseas territories to grant British Overseas Territories citizenship on the same basis.
We think this provision in the Bill is a positive step, allowing us to grant citizenship to those who missed out. The noble Lord, Lord Russell, and the noble Baroness, Lady Hamwee, have also tabled an amendment related to acquiring citizenship following adoption in the UK. At this juncture, I, too, send my best wishes to the noble Lord, Lord Russell. I hope he feels better soon.
On the point from the noble Baroness, Lady Hamwee, British overseas citizenship was introduced for those who would otherwise be stateless under the 1981 Act. It was not intended to be passed on, like British citizenship and British Overseas Territories citizenship.
I turn first to Amendment 14. Under the law currently in force, a child adopted in the UK can automatically acquire British citizenship, provided they are under 18 on the date the adoption is made. The Adoption and Children Act 2002 permits adoptions after their 18th birthday in England and Wales, as long as the adoption order is issued before the person turns 19.
I am mindful that different rights and responsibilities exist in law and many have ages attached to them. For example—the noble Lord, Lord Rosser, alluded to this—children as young as 10 can be held responsible for criminal behaviour, as teenagers they can start employment and from 17 they can drive. Arguably, the biggest evolution in an individual’s life happens at 18, when they can vote, marry without consent or enter into legally binding contracts. Similarly, under British nationality law, a person is no longer considered a minor once they reach the age of 18. The automatic conferral of nationality to someone who is legally an adult is out of step with the nationality and wider immigration systems.
I have great sympathy with young adults who feel they have lost out, but we are introducing an adult registration provision at Clause 7. Those who genuinely missed out on British citizenship because an adoption order was made when they were aged 18 may be able to benefit. I must stress that each case will be considered on its merits. I accept this necessitates a further act on behalf of the individual, but this is reasonable for consistency within the wider provisions of the nationality and the immigration laws. The case cited by the noble Baroness, Lady Hamwee, was resolved through existing rules. I am aware that Scotland permits adoption for those over the age of 18, but it differs from England and Wales in that there is no upper age limit. Northern Ireland does not currently permit adoption to happen after the age of 18. This amendment would therefore cause uncertainty depending on the jurisdiction in which the adoption is sought.
It is proposed in Amendments 15 and 19 that we remove the requirements within these provisions for a person to be of full age and capacity. I will address them in turn. The reason this applies to people of full age—that is, over the age of 18—is that there is already discretion within the British Nationality Act 1981 to register a child at the Home Secretary’s discretion under Section 3(1) or a governor’s discretion under Section 17(1). The only statutory requirements are that the child is under 18 and of good character if they are over the age of 10. We do not therefore need to include children within Clause 7, which is in fact more limited in its application.
The full capacity requirement applies to all applications, so we would not wish to treat this group differently. Since 2006, the Secretary of State has had discretion to waive the full capacity requirement, if she thinks doing so would be in the person’s best interests. Since then, no applications have been refused solely on capacity grounds, which shows that the current discretion is sufficient to allow decisions to be taken in the best interests of the applicant.
The noble Baroness, Lady Hamwee, asked whether the full capacity and age requirements relate to the subject of the application or the person applying. They relate to the subject of the application.
Amendments 16 and 20 would give a person a statutory right to be registered as a British citizen or British Overseas Territories citizen if they met the relevant criteria, rather than it being at the Home Secretary’s or governors’ discretion. Clause 7 applies not just to those who would have acquired citizenship automatically but to those who would have been able to become a British citizen or British Overseas Territories citizen but for historical legislative unfairness, an act or omission of a public authority, or their exceptional circumstances. This means that it covers not just those who would have become citizens automatically but those who might have had an entitlement to registration, or could have registered or naturalised at the Home Secretary’s discretion. We think it is right that this provision remains discretionary to allow the Home Secretary to take into account any assessment she or he might have made at the time of the person’s eligibility or suitability for citizenship.
Where registration in legislation is an entitlement provision it needs to be more tightly set out so that there is no doubt as to who does and does not benefit. As we want this clause to benefit those who have missed out on the citizenship that should have been theirs, we want to have flexibility to consider a person’s circumstances without being overly prescriptive. That means we will be able to consider applications where issues might arise that we might not already have be aware of or where a person is affected by a number of circumstances that may be difficult to set out in detail. We are making this a discretionary provision not to refuse deserving people but to allow us further flexibility to respond to situations that cannot have been reasonably foreseen.
We do not think that having a discretionary power is a negative thing in this situation. Noble Lords will know that naturalisation is a discretionary provision, which works well, with decisions being made in line with published casework guidance, which sets out all sorts of circumstances where discretion would normally be exercised.
This leads on to Amendment 23, which would impose a statutory requirement on the Home Secretary to publish guidance for Clause 7 following consultation. We have already stated our intention to make published guidance available for this new adult registration route. I agree with the noble Baroness that published guidance would help people to understand how this provision might be used and help maintain consistency in decision-making. However, given our stated intention, I do not think it would be helped by a statutory requirement. We will continue to publish guidance on the GOV.UK website, as we do for all nationality routes.
Finally, Amendment 24, tabled by the noble Baroness, Lady Hamwee, would introduce a discretionary adult registration route for a person to become a British overseas citizen. BOCs, as they are called, were created by the British Nationality Act 1981 for people connected with former British territories who did not have a close connection with the UK or one of the remaining British Overseas Territories. This was usually where they were from or connected to a country that had become independent but they did not acquire the citizenship of that country. The intention was to avoid making people stateless due to complex histories of independence or countries ceasing to be British protected territories.
British overseas citizenship was intended to be a transitional status, and it is expected that many who held that status will have acquired the nationality of the place where they were born or have been living in the 38 years since that legislation was passed. The existing routes to British overseas citizenship are therefore very limited, and we do not intend to create a new route. However, people who hold only BOC and do not have, and have not voluntarily lost, another citizenship or nationality can apply for British citizenship under existing legislation. If a person believes that they missed out on becoming a BOC because of historical unfairness, and as a result they also missed out on being able to become a British citizen because they have no other nationality, and have not done anything that meant they lost a nationality, there is nothing to prevent them applying for that status under this clause. With that, I hope the noble Baroness will not press the amendments.
My Lords, I agree with the Minister that Clause 7 is positive and I agree with the noble Lord, Lord Rosser, that it must not be just a token. I am obviously disappointed with a good deal of what the Minister had to say. With regard to guidance, which I am glad to hear is proposed, the reference to consultation in our amendment was not accidental. It is important, particularly when we are told that the point of this is to allow flexibility for the Secretary of State, to have the input of stakeholders.
On the point of capacity, if the current discretion is sufficient, I should have said that working on the basis of experience one should put something discretionary into statute, so that everyone is quite clear where they are. As to the transitional nature of British overseas citizenship, there are still people who are affected. The fact that there are very few does not change the position.
With regard to adoption and the need to go through a registration process and for it not just to be automatic, the Minister said that this would be considered on its merits. Just repeating those words indicates how different this is from automatic citizenship, which is part and parcel of whole adoption arrangement. She mentioned the need to be consistent with other nationality provisions. I should say that this amendment would be consistent with the arrangements for adoption that we have in the different parts of the UK. I am particularly disappointed about that, but I hear what she says and I beg leave to withdraw the amendment.
Amendment 14 withdrawn.
Amendments 15 to 24 not moved.
Clause 7 agreed.
Clause 8 agreed.
Schedule 1 agreed.
Clause 9: Notice of decision to deprive a person of citizenship
25: Clause 9, page 11, leave out lines 33 to 36
Member’s explanatory statement
This amendment deletes the proposed new sections 40(5A)(a) and (b) in the British Nationality Act 1981.
My Lords, I will speak also to Amendment 26 in this group and I look forward very much to hearing other noble Lords speak to their amendments in this group, which are very much on the same theme.
My amendment is perhaps a little more radical than some in this group, so, for the purposes of clarity, I am seeking to delete from the amendment to Clause 9 that was carried in Committee in the other place the proposed subsection (5A), which states that the notice to be given to a person to be deprived of citizenship, thereby notifying that their citizenship is to be withdrawn,
“does not apply if ... the Secretary of State does not have the information needed to be able to give notice under that subsection”
or if it is not
“in the interests of the relationship between the United Kingdom and another country”.
I will set out my reasons for doing this.
I will allude to my earlier remarks: I obviously have an interest to declare, in that my mother was a naturalised British citizen by marriage to my father in 1948. Obviously it is a source of some concern to me that, were my mother still alive, she could be deprived of her nationality. I have to say that I am envious of the noble Lord, Lord Alton of Liverpool, and others, including on my own Benches, who, by dint of their parents, have dual nationality—British and Irish, in most cases. I applied for Danish nationality and got a six-page note from the consulate of Denmark saying why I did not qualify—so I feel very deprived of my right to Danish nationality, which I would be very proud to carry.
The Constitution Committee of the House set out, in paragraphs 18 and 19:
“Clause 9 was tabled by the Government at committee stage in the Commons. At present, under section 40(5) of the British Nationality Act 1981, a person who is to be deprived of citizenship must be given written notice of a deprivation order, the reasons for the order and a notification of the person’s right of appeal. Clause 9(2) specifies circumstances in which the Secretary of State will be able to deprive a person of British citizenship without giving notice … This is a potentially very broad power, enabling the Secretary of State to deprive a person of citizenship without giving notice on grounds including national security or the public interest. It is unclear how it will operate or who might be caught by it. Accordingly, the appeal process is potentially important. Clause 9 provides a right of appeal to the First-tier Tribunal. However, if a person has not been given notice of the deprivation of citizenship it is difficult to see how he or she would be able to appeal the decision.”
The committee concluded in paragraph 20:
“If a person is to be deprived of citizenship without notice there ought to be additional safeguards. For example the Secretary of State should have to apply to a court to dispense with service of a notice or obtain an order of substituted service so as to give the person affected the best opportunity of responding to the notice.”
As I mentioned earlier, I am grateful to the Law Society of Scotland, and Michael Clancy in particular, for the briefing and for preparing this amendment. The Explanatory Notes to the Bill state in paragraph 140:
“This clause amends section 40 of the British Nationality Act 1981 … to allow a decision to deprive a person of British citizenship to be made in the absence of contact with the person and to ensure that the associated deprivation order is valid.”
This objective is achieved by Clause 9 of the Bill, which inserts into Section 40 of the British Nationality Act 1981 new subsection (5A). We are all now familiar with this subsection, which I read out earlier, as well as subsection (5B).
My understanding is that the aim of the clause is to provide a means of depriving a person of their British citizenship where it is not possible to give, or there are reasons for not giving, prior notice of the deprivation decision, as specified in subsection (2) of the clause. This is necessary to ensure that deprivation powers can be used effectively in all appropriate circumstances, including, for example, where a person is no longer contactable by the Home Office. Again, this is set out in paragraph 141 of the Explanatory Notes.
I put it to the Committee that the fact that the Home Office has lost contact with a person is not a sufficient reason to remove the obligation to notify that a person is to be deprived of citizenship. Amendment 25 would ensure that notification was still required in such circumstances. However, where a decision was made to deprive a person of citizenship on the basis that they posed a threat to national security, it would remain permissible to remove citizenship without notice on the basis that the person could appeal against that decision.
On Amendment 26, I respectfully and humbly submit to the Committee that the Government should provide further justification for the provision set out in new Clause 40(5A)(c)(ii) of the British Nationality Act, which I read out earlier—namely,
“in the interests of the relationship between the United Kingdom and another country”.
Does that not seem a vague and imprecise reason for not notifying a person of the deprivation of their citizenship? In my view, it should be struck out of the Bill.
I received a briefing, for which I am grateful, from the European Network on Statelessness, setting out its views on what is wrong with Clause 9 as it exists. In its view:
“States must conduct a thorough assessment of the consequences of deprivation of nationality”.
“Clause 9, as proposed, will have severe impacts on the rule of law and on a person’s fundamental rights, and disregards many of the UK’s international obligations, including the prohibition of arbitrary deprivation of nationality, the obligation to avoid statelessness, and the right to a fair hearing. The UK Government has not provided any justification as to why such a restriction on fundamental rights is needed.”
I welcome the support from the European Network on Statelessness for the removal of Clause 9 from the Bill, which the noble Lord, Lord Anderson of Ipswich, will address in short order. I am minded to support him if my amendments do not carry favour.
I understand and support many aspects of the Bill that have regard to the rule of law and where the rights of the citizen are to be respected. What I find unacceptable about those parts of Clause 9 that I am seeking to remove is that, through no fault of their own, a citizen could be deprived of their citizenship without having been given prior notice and without their right to consult a legal representative to act on their behalf. With those few remarks, I beg to move.
My Lords, I shall speak to Amendment 27 in my name. I declare at the outset that I was born both a British citizen and a citizen of the Irish Republic.
I am sympathetic to the remarks made by my noble friend Lady McIntosh of Pickering. She described them as radical but in my view they could be more radical, because they address what is essentially a symptom rather than the underlying disease. To understand that disease, it perhaps helps to go back a little in history. As the First World War went on, there were fantasies in this country about German spies who were everywhere. The belief grew up that the Kaiser had for many years been planting German agents here who had a remarkable ability to look like us, talk like us and infiltrate the highest levels of society. The late Lord Tweedsmuir’s novel The Thirty-Nine Steps may read to us today as a Boy’s Own story but it tapped into and encouraged a widespread national anxiety.
In 1917 the MP Noel Pemberton Billing claimed to be in possession of the Kaiser’s “black book” containing the names of 47,000 prominent figures in government and society at large who were German agents or had been blackmailed into becoming so. It was the subject of a sensational libel trial and made headlines throughout the land. This was the background to the British Nationality and Status of Aliens Act 1918, which introduced for the first time the power to deprive naturalised British citizens, and only naturalised British citizens, of their nationality.
At Second Reading, noble Lords, including my noble friend Lord Wolfson of Tredegar and the noble Lord, Lord Rosser, stated that the power of deprivation was introduced in 1914, but the 1914 Act merely allowed deprivation in the case of naturalised citizens who had obtained that status by fraud, making statutory a power that was always implicit. It was the 1918 Act that made the radical change. Until that point, the bond of British nationality had been indissoluble. Now it could be removed, from naturalised subjects only, in the event of disloyalty or disaffection to the monarch, for trading with the enemy in time of war, for being subject to a prison sentence of over a year in His Majesty’s dominions, and on some other essentially similar grounds.
The British Nationality Act 1948 maintained substantially the same deprivation provisions but introduced a new right for British citizens whose nationality was not wholly clear to register the British nationality that they were entitled to. I shall come to the relevance of that in a moment. The great consolidating and modernising statute that still governs our nationality law, though much amended subsequently, is the British Nationality Act 1981. It is essentially the original language of that Act that Amendment 27 in my name seeks to reinstate. Noble Lords have already recognised the historical roots of the grounds on which the Act allowed the Government to deprive a British subject of their nationality: fraud, of course, but also disaffection towards Her Majesty, trading with the enemy and serving a one-year prison sentence within five years of naturalisation, though now anywhere in the world, not merely in Her Majesty’s somewhat shrunken dominions.
Regarding deprivation, the Act made one change of capital importance. It extended the Government’s power to deprive from naturalised citizens to those registered as having a right to British citizenship. If the 1918 Act made naturalisation a sort of provisional business, the 1981 Act extended that for the first time to the small number of British citizens by right—not by birth or descent, admittedly, but those who had vindicated their nationality through registration.
We move on rapidly to the Nationality, Immigration and Asylum Act 2002, and I am delighted to see the noble Lord, Lord Blunkett, in his place. This Act radically altered the position, extending the Government’s power to deprive to all British citizens by birth, descent, registration or naturalisation. The flowery language about disaffection and trading with the enemy was diluted to any conduct
“seriously prejudicial to the … interests”
of the United Kingdom. In a subsequent Act in 2006, it was further diluted to allow deprivation if it were merely
“conducive to the public good.”
These measures were introduced by a Labour Government but no party in your Lordships’ House has wholly clean hands in this regard, because the Immigration Act 2014, introduced by the coalition Government of Conservatives and Liberal Democrats, went even further, diluting the one constraint that the Government faced in exercising this power, namely that it could not be used if it rendered a person stateless. Under the 2014 Act, being rendered stateless is no protection if the Home Secretary reasonably believes that the person could acquire another nationality.
The result is that we have gone, in the space of a century, from an indissoluble bond to a position where an enormous proportion—I cannot calculate it—of British citizens hold their nationality contingently at the discretion of the Home Secretary. This includes anyone with an Irish grandparent; all British Jews, on this solemn Holocaust Memorial Day; anyone, like the Prime Minister, born in the United States; and, of course, the very large number of British citizens who have Commonwealth ancestry that might afford them the opportunity of another passport. My noble friend Lady McIntosh of Pickering said she felt deprived because she was not qualified for dual nationality. I understand what she says, but in return, it must be said, it gives her the protection that many people do not have that she cannot be deprived of her British nationality.
Why has all this happened, and what has been the effect? I have already explained how the first breach in 1918 arose as a response to a vicious, fake news campaign. The “black book” was entirely bogus, obviously: perhaps I did not need to say that. None the less, the powers that it created were never much used. Between 1949 and 1973, 10 people were deprived of British nationality, according to a 2016 report by the noble Lord, Lord Anderson of Ipswich, when he was Independent Reviewer of Terrorism Legislation. Between 1973 and 2002, the power appears not to have been used at all.
The 2002 Act was, of course, a response to 9/11. The 2006 Act was specifically designed, as I recall, to deal with Abu Hamza. The 2014 Act was in response to the case of a Mr Al-Jedda, who had been up to no good in Iraq. Of course, Clause 9 today is an explicit response to a case recently lost by the Government in the courts, the case of D4. If bad law is made by hard cases, what we are witnessing is the wholesale undermining of the rights of British citizenship on the basis of a very few hard cases.
Noble Lords might say that it is all necessary for the protection of the public, and I agree that that is a compelling rationale. There are indeed some very dangerous people in the world, and some of them are British. However, the numbers do not entirely bear out that story. A degree of estimation is required here, because it is not clear that all the numbers are entirely in the public domain. It appears that the number of people deprived of nationality on all grounds were: in 2011, six; in 2012, a further six; in 2015, 18; in 2014, 23; in 2015, 19; and in 2016, 38. In the three following years, some 300 people have had their nationality removed, no doubt because of the rise of ISIS. However, given the damage done to the whole basis of British citizenship, was there really no other means of dealing with these people, who are counted in the hundreds? They could, for example, be tried and convicted in a court of law, rather than effectively reintroducing the medieval punishment of banishment.
Those who speak against Clause 9 today are, in my view, slightly missing the point. Clause 9 is merely an administrative tidying-up of an iniquitous system. It is much better to address the root cause, and that is what I ask your Lordships’ support for in this amendment in my name and in the names of my noble friends Lady Warsi and Lady Mobarik and the noble Baroness, Lady Fox of Buckley. I am grateful for the help that I received from Amnesty in drafting it. The amendment not only deletes Clause 9; it effectively eliminates all the changes made to Section 40 of the British Nationality Act since 1981. Section 40 is the section that deals with deprivation.
The wording is slightly changed from 1981 to make it coherent with changes to other parts of the Act in the last 40 years. There is one change of substance: except in cases where registration has been obtained by fraud, my amendment eliminates also the Government’s powers to remove the nationality of British citizens by registration because they are citizens by right, just like the rest of us, and confines it to those who are naturalised. The grounds for deprivation remain as high as they were in 1981; they cannot be used if they will cause statelessness. The appeal to a tribunal remains, as does the requirement for the Government to give notice.
There are those who would go further. Amendment 32, in the name of the noble Baroness, Lady Bennett of Manor Castle, would more radically extinguish the power of deprivation altogether. I understand her argument. I do not disagree with her, and if the House supported her amendment in preference to mine I would be perfectly content. But I have taken the view that reverting to the original language of the 1981 Act might be more acceptable to your Lordships’ House, being tried and tested and coherent with the other parts of this important Act. It may not be perfect, but I would not want us to fall into arguments about terminology. As I say, if the House preferred the noble Baroness’s amendment I would of course be happy with that.
The current degraded state into which we have, by means of the changes made since 2002, allowed the whole concept of British citizenship to fall has a particularly deleterious effect on minority communities. Because I have spoken quite long enough, I shall leave it to other speakers who I know are going to expand on that. It also has an effect on us all. When something as important as nationality and national identity is treated by our own Government like a mere driving licence or library ticket that can be cancelled by administrative fiat, we are all the poorer.
It is not often that life gives you the chance to go back, start again and get it right the second time around. This is one of those cases and I urge noble Lords in all parts of the House to seize it.
My Lords, I shall speak to oppose the Question that Clause 9 stand part and to my Amendment 28, with my thanks to noble Lords from four different parties who have added their names. Unlike Amendments 27, 29 and 30 to 32, my proposals would not affect the grounds on which citizenship can be withdrawn, though, in partial sympathy with those amendments, and subject to hearing the Minister, I suspect that the current “conducive to the public good” criterion, introduced in 2006, as the noble Lord, Lord Moylan, has just said, is broader than it needs to be.
My stand part amendment gives effect to proposals of the Joint Committee on Human Rights and your Lordships’ Constitution Committee. Grateful as I am to the Minister for her letter on Clause 9—and I really am—it does not allay my profound concerns about a new power to remove a person’s citizenship not just without giving reasons, but without ever having to tell them that you have done so.
I would like first to probe rather further the need for Clause 9, by which I mean the practical need rather than the theoretical points set out in the letter. A Written Question in my name of 5 January asked in how many cases the need to give prior notification had prevented use of the deprivation power. The Minister replied:
“Prior to the recent High Court decision in the case of D4 ... there had been no cases where the notification requirement had prevented deprivation action from taking place.”
That is an interesting admission. For a short period between August 2018 and July 2021, the Government thought they had the power to notify by merely entering a note on the subject’s Home Office file, a route which the High Court and now the Court of Appeal have declared in the D4 case to be outside the statutory requirement that a person be given written notice.
The Minister’s answer shows that not only during this period but before it, when the Government did not claim to be able to notify simply by “putting the document in a drawer”, as Lord Justice Baker put it yesterday in the Court of Appeal, there were no cases in which the requirement to give notice prevented them removing citizenship. That is perhaps not surprising, since it is enough under the existing rules, which are very broad, for notice to be sent by post or email to the person’s last known address, or to a parent, or to the parent’s last known address.
What of the one exception, the case of D4? Her own lawyers told the High Court that her whereabouts in a Syrian camp were known to the Government at the time of deprivation—government agencies had been there to talk to her daughter—and that her family continued to live at her previous address in England. If that is right, the problem was not that the ordinary rules were inadequate but that the Home Office sought to use a procedure that turned out to be unlawful. The case for Clause 9, therefore, even in a case such as that of D4, has yet to be made. I urge the Minister to remedy that defect, if she can.
I question, secondly, the scope of application of Clause 9. Amendments 25 and 26 from the noble Baroness, Lady McIntosh, would remove some of the alternative grounds on which notice can be withheld. However, with great respect, they do not address the ground that is so broad as to make the others almost redundant: the power to withhold notice whenever it appears to the Secretary of State that this is in the public interest. With or without the noble Baroness’s amendments, Clause 9 permits notice to be withheld even when notification would be perfectly feasible and when no national security concerns are in play. Its effect would be to give the Home Secretary the simple option of telling people or not, as she pleases.
The Home Office has suggested, on social media, that the power would be used only in exceptional circumstances, or only if other means of service are not practicable, or in cases of a threat to national security. If that is the case, it should say so in the Bill. Tweets and videos do not bind current Home Secretaries, let alone future ones—neither, so far as the courts are concerned, do statements from the Dispatch Box. I say to the Minister: please put it in the law.
Thirdly, there is a remarkable absence of safeguards, even by comparison with the two countries I have found whose Parliaments have been prepared to give Ministers a power to withhold notice of citizenship removal: Australia and New Zealand. In Australia, the power to withhold notice applies only to deprivations on national security grounds, and only if the giving of notice would harm security, defence, international relations or law enforcement. There are no such limitations here—and there is accountability: the Minister must regularly table a report to Parliament on his use of the power and brief the Australian Intelligence and Security Committee in writing as soon as practicable after doing so. The Australian equivalent of the Independent Reviewer of Terrorism Legislation, the even more indigestibly titled Independent National Security Legislation Monitor, has a standing own-motion power to review citizenship deprivation laws, something that successive Home Secretaries have refused to permit here. The withholding of notice must be reviewed by the Minister personally every 90 days, and cannot be extended indefinitely, as Clause 9 proposes, keeping the subject in the dark and rendering nugatory his right of appeal. The previous Australian independent monitor, the military lawyer, James Renwick SC, has proposed that notice should be given as soon as reasonably practicable and always within six months of the deprivation.
New Zealand has in place a stronger safeguard still. If the Minister wishes to dispense with notice, she must apply to the High Court and, if the High Court accepts her application, it will then carry out a full merits review of the decision to deprive. Prior judicial authorisation is hardly alien to our national security culture: we apply it to TPIMs, temporary exclusion orders and a whole range of intrusive surveillance powers. Why should it not apply to this most life-changing of executive measures—the cutting of the bond between citizen and nation?
My Amendment 28 would subject the citizenship removal power on “conducive” grounds to annual review, like the other powers used to combat terrorism. The current triennial review applies only to citizenship removal resulting in statelessness, as provided for by the Immigration Act 2014—removals which, one would hope, are unlikely ever to be more than a tiny proportion of the total.
Why? A recent Written Answer said there had been 14 citizenship deprivations on conducive grounds in 2016, rising to 104 in 2017 and falling back to 21 in 2018. No further breakdown, I was told, could be provided. Why the variation? Why the huge number in 2017, and why has there still been no publication of the figures for 2019, 2020 or 2021? A security cleared independent reviewer—why not the one we already have?—needs to be able to ask those questions, hold feet to the fire and report regularly to Parliament. How else are we to know what is going on in our name?
I have one final point. Many of us—including, I think, the noble Lord, Lord Moylan, whose speech I very much appreciated—would agree that there are some acts so traitorous as to merit the forfeiture of citizenship. In making laws, however, we need to remember not just those few people but the many millions who have come to our shores, who want to be accepted, who see the breadth of the law and who, perhaps with bad experience of other Governments, fear its arbitrary application. I was contacted after Second Reading by Michelle Barbour, who works with residents of Napier barracks in Folkestone. She wrote:
“Every man there is completely accepting of the process they must complete to request citizenship. These men understand that they must justify their right to remain. To learn that they may receive citizenship status and then, unknowingly, have this rescinded, produces stress and fear that I am fortunate enough to be unlikely ever to experience.”
Surely it is in everyone’s interest, most of all the Government’s, to reassure these men, and indeed any of our dual or naturalised citizens, that in this country these most extreme powers cannot be exercised arbitrarily because they are constrained by laws.
I therefore ask the Minister, who has spoken to me once and has kindly offered to do so again, to take Clause 9 out of the Bill, and, if she can make the case for such an extraordinary power, which I do not take for granted, to come back with a version of it that is far more limited in scope and subject to proper safeguards and accountability.
My Lords, we are told that the provisions of Part 1 overall seek to remove historical anomalies and to remedy areas of historical legislative unfairness in British nationality law that have prevented citizenship being available to a range of people deemed to have the right to it.
Although we have already discussed some of the problems today, and possible improvements to Part 1, on the whole this part of the Bill is full of positive aspirations, and I welcome it. However, Clause 9 as presently framed stands out as jarring and negative, as it confers on the Secretary of State even more ill-defined and overreaching powers to make citizenship-stripping orders without notice and effectively without appeal, as we have heard. However, it builds on a prior problem of treating citizenship as contingent—a gift of the Home Secretary. We have a chance here to build on the theme of the intent of Part 1, which is to be able to remove historical injustice. That is why I have put my name to the amendment in the name of the noble Lord, Lord Moylan, which strips back powers to the 1981 Act, as he explained.
I will not give as long a rendition of history as the noble Lord, Lord Moylan, did—his was ever so interesting —but I want to go a bit further back to look at how we got here. Way back in 1870, William Gladstone proposed a plan to require the ability to revoke the naturalisation of any individual who
“acted in a manner inconsistent with his allegiance as a British subject.”
What is interesting is that this was vigorously opposed by Lord Houghton as a
“transcendental power—more than ought to be entrusted to any man.”
Lord Houghton added that not only was this to place too much power in the hands of the Executive but that the law would also be discriminatory in dealing
“differently with naturalized than with British-born subjects.”—[Official Report, 10/3/1870; cols. 1616-18.]
Parliament then agreed with Lord Houghton, and I hope that today’s Parliament will agree with the noble Lord, Lord Moylan.
Parliament and Lord Houghton then rejected the proposal by arguing that citizenship is a right that should not be arbitrarily removed by the state—“Hear, hear” to that. Now, sadly, this Government and previous Governments enjoy far greater transcendental power than Mr Gladstone ever dreamed of. They are treating citizenship as a privilege, not a right, and they carry on apace.
Following some points made by the noble Lord, Lord Moylan, on 1918, I find it extraordinary that, in 2017, more Britons have had their citizenship revoked than in both world wars combined. Since 2010, more than 150 people have been stripped of their citizenship; although, as the previous speaker already described, it is entirely unclear why and when, and what explains different figures at any time. But of course this is not just about numbers.
This amendment is drafted to undo an increasingly used power, and it would prohibit the Secretary of State making anyone stateless, other than those who have obtained citizenship through fraud or misrepresentation. I note that anyone who has obtained citizenship through fraud or misrepresentation is not a citizen at all. In other words, this is about protecting people who are citizens.
Clause 9 and the present powers are justified by the Government and in popular discussion on this issue as reserved for those who pose a threat to the United Kingdom or whose conduct involves very high harm. They are associated especially with jihadists—key dates form around 9/11, 7/7 and the rise of ISIS—and violent criminals. That explanation seems dangerous, as it allows the state to use the withdrawal of citizenship as a tool of punishment.
I make the point that citizenship is a legal status for individuals in perpetuity, with no ifs and buts. It enshrines a set of rights and responsibilities. As always when we have this discussion about the control of national borders, there is a spotlight on those trying to cross them and get in, as it were, but we do not give enough attention to the virtues of national borders for those within them. They allow the creation of citizenry with rights and the foundations of social bonds and solidarity.
Any nation state is not just an arbitrary grouping of individuals or made up of members of an abstract entity of humanity; national laws are made on behalf of citizens within a given territory and they do not apply to citizens of other nations. Democracy makes sense only within a specific place. Politicians in the UK are accountable to British citizens, not French or Australian citizens or what have you. UK citizens are then treated equally to each other within the boundaries of that nation state. They are treated equally at the ballot box or before the law. Whether bishop or builder, corporate CEO or cleaner, whoever or whatever your parents are, before the law and as voters, you are equal. That equality between citizens of any nation state means that they have different rights and duties from non-citizens.
For these special citizenship rights to mean anything, that equal treatment is crucial. Even when some of our fellow citizens renege on their duties and break the law—sometimes committing the most heinous transgressions of national law—we still do not renege on their citizenship.
We should not be squeamish about punishing British citizens who, for example, join a barbaric army such as ISIS, any more than when punishing British citizens who are child murderers or rapists. What we do not and should not do is wash our hands of our citizens because we deplore the vile crimes they have committed. Does it not exhibit moral cowardice if the state pretends it has no responsibility for dealing with the reprehensible actions committed by some of our own citizens? That is true for Stephen Lawrence’s racist murderers, Sarah Everard’s murderer or Shamima Begum’s active involvement in a death cult committed to destroying western free societies. What they all have in common, whether we like it or not, is that they are British citizens.
If ISIS and Islamist terrorism are considered special cases, as some argue, the Government should bring special legislative solutions to Parliament. Instead, the Home Secretary is given a general power to outsource British criminals to third parties, such as countries they have never set foot in, while allowing a practice that undermines and damages the very precious citizenship that British jihadis so grossly betray.
The truth is that this power given to Home Secretaries does not keep citizens safe in the UK. Instead, it creates a citizenship framework in which some are second-class citizens, their rights contingent and provisional. To those who say, “Don’t worry. Trust the Home Office not to abuse these powers. They’ll be used in only a very narrow way, directed at very particular people”, I reply: Windrush.
How counterproductive all this is. It is inevitably racially divisive and has caused huge worries and anxieties, as we have heard, among millions of British citizens, or would-be British citizens, especially those from ethnic minorities. As we noted at Second Reading, Part 9 sends a message that certain citizens, despite being born and brought up in the UK and having no other home, remain migrants in this country. While so many of our own fellow citizens feel their citizenship, and therefore all their rights, to be precarious, it makes an absolute mockery of demanding of them the duties of citizenship, such as loyalty, law-keeping, obligation to the life of the national community, and taking responsibility for the democratic future of one’s own society.
To conclude, the noble Baroness, Lady McIntosh of Pickering, cited British Future’s excellent report, Barriers to Britishness, which notes that, at a time when society can feel fragmented and atomised, when there are new challenges to a unified citizenship in the form of, for example, divisive identity politics, or in the context of many institutions that once bonded us all as citizens together having a less powerful hold and, to be honest, a trust deficit, then surely the common bonds of secure citizenship are more important than ever. In preference to this, this clause’s message—that citizenship is a privilege and that many possess it only under sufferance, depending on what a particular Home Secretary of the day, of whatever party, considers acceptable or unacceptable behaviour—is very damaging.
Let us take the opportunity of this Bill to reset the narrative. I will support a later amendment proactively promoting a positive citizenship agenda, but this amendment is a good start to this endeavour. I am also sympathetic to Amendment 32 and anything radical that secures the rights of British citizens, whoever they are, whoever their parents are and wherever they are from, and not the power to the Home Secretary.
My Lords, I am grateful to those noble Lords who have already spoken. It is heartening to hear voices from across the Committee raising concerns about the proposed powers in Clause 9. My contribution will be very short.
I can well imagine variants on our current conversation happening time and again, ever since the British Nationality Act 1981, which has already been referred to by the noble Lord, Lord Moylan, brought in deprivation of citizenship. Indeed, a look through Hansard would confirm that.
Since 1981, these deprivation powers have been amended and extended, including in 2003, 2006, 2014 and 2018. Each time, the rationale provided by the Government is the same: that these are relatively minor tweaks made for pragmatic reasons, with the security of the nation in mind, and that these powers will be used only in extreme circumstances, with great caution and restraint on the part of the Government. Yet it seems that these powers are never quite enough. The argument that they would be used in only the most extreme cases seems somewhat at odds with the 104 cases reported in 2017, as referred to by the noble Lord, Lord Anderson. At some point, it must surely become necessary for us to say that the Secretary of State has more than sufficient powers, given the gravity of what it means to be stripping citizenship away from people. Instead, it seems we are being asked to allow for the goalposts to be moved yet again—for the third time in less than a decade.
I will listen with care to the Minister’s response, but the accompanying factsheets of this Bill and the answers from Ministers to date do not seem to provide the necessary substantial evidence that there is a widespread problem which needs fixing; nor do they yet provide the reassurance that such new powers are proportionate or necessary, given the significant concerns that they cause among many, particularly minority groups. I hope that the Minister can reassure us with some clear evidence of the number of cases we are talking about and why it is that current powers are inadequate.
My Lords, I have been very pleasantly surprised to see the level of public anger that has been expressed against Clause 9. People are rightly absolutely furious to learn that there is a two-tier system of citizenship in this country, where if you have a second nationality you are at risk of the Government withdrawing your British citizenship. That is pretty grim. However, it is concerning that some people are suggesting this is something new. It is not new; it is already the law that dual citizens can have their British citizenship revoked with the very wishy-washy legal test of it being conducive to the public good.
That is why my noble friend Lady Bennett of Manor Castle has tabled Amendments 32 and 33. These will revoke the power of the Government to remove people’s British citizenship unless their citizenship was obtained by fraud or deception. Clause 9 extends the power, but simply defeating Clause 9 will not remove the power. I hope that we can work with noble Lords to remove the power on Report to eliminate this two-tier system of citizenship.
While we are discussing numbers, since 2006 the legal website Free Movement has found that at least 464 people have been stripped of their British citizenship. For comparison, in the 30 years before 2003 no one had been stripped of citizenship. So much for transparency —this could be discovered only through research, as the Government do not provide any sort of regular reporting on the figures. I ask the Minister if the Government will start doing that, so we can keep track and be fully aware of what they are doing.
My Lords, reference has understandably been made to one of the Acts which came to fruition when I was Home Secretary, and I do not resile from that. I speak this afternoon because this is a critically important debate, and the contributions so far have been both informative and enlightening.
Amendment 28 from the noble Lord, Anderson, has a great deal of merit. I say to the noble Lord, Lord Moylan, for whom I have the most enormous respect and good will from working together on a whole range of other issues, that simply going back to day zero is not necessarily the best answer for the solution we are seeking. If we could find a way forward on Report that takes away the genuine fear from millions of people who believe—erroneously, but they believe it—that Clause 9 as drafted and the implementation of further measures will put them and their families at risk, then we will have done a good job in clarifying the situation.
To put things in perspective, the reason that there was a change from the early 20th century onwards has a great deal to do with the nature of dual citizenship, the way in which global movements have changed quite dramatically and the consequences of global franchise terrorism, which did not exist before. Our main threat, as we all know, up to the beginning of this century, was seen to be from the conflict in Ireland.
To be fair to the Minister, an effort to try to bring the present situation up to date is understandable, but the way it is being done is not. I do not think that the 2002 legislation, implemented in 2003, actually went too far. It was done on the back of the attack on the World Trade Center and beyond, and it was necessary to take into account the dangers that were foreseen and the people who were known to be a danger to our country. I thought that the measures taken at the time seemed to be proportionate. We can debate whether they were or were not, but it is absolutely clear that simply going further and further without justification is not appropriate in our democracy. A step back and a reflection on what it is we are trying to achieve, and why, would be beneficial.
By the way, I do not consider that the measures I was involved in were about punishing anybody. They were about protecting people from those embedded in the community who were no longer committed to our democratic society; in other words, those who had forfeited this part of their dual citizenship—citizenship of our country—because of the actions they took or were prepared to take. These were the actions of individuals, not actions imposed by government.
Let us try, if we can, to get this right on Report. If we can do that, we will take away that fear, which I think is the main reason why we should remove Clause 9.
My Lords, first, I apologise for being unable to speak at Second Reading. I have put my name to Amendment 27 in the name of my noble friend Lord Moylan, who laid it out so well.
Clause 9 has shone a spotlight on legislation concerning the deprivation of citizenship—legislation that has essentially been in existence since 1918, as has been pointed out. However, the degree of power that this legislation wields has evolved over decades, most notably in 2002, 2006 and 2015. The current attempt to deprive a British person of their citizenship without even informing them in advance takes these powers to a wholly unacceptable and sinister level; powers that we would not expect in a modern democracy and, as has been said, more akin to archaic banishment laws.
As my noble friend Lord Moylan stated, this amendment would allow us to row back from the damaging legislation of recent years to the British Nationality Act 1981. It is by no means perfect, as it has certain aspects that one could question, but it is perhaps the most pragmatic and acceptable legislation that we have currently. At the very least, this amendment would go a long way to providing some degree of security to the many people who feel that they are vulnerable under the current legislation, and certainly the proposed legislation. Such legislation has crept in, often as a knee-jerk response to a single event or individual.
The Minister may argue that what I say is an over- reaction and that these powers would be used only in exceptional circumstances. But if Clause 9 is enacted into law, there is a very real danger of its misuse. The open- ended term
“conducive to the public good”
flashes red. If citizenship is revoked without notice—perhaps while someone is abroad, with the Home Secretary considering them unreachable—it is highly unlikely that that person would have any recourse to appeal by the time they found out their predicament. On a more basic level, you cannot appeal a decision of which you are unaware.
As a person cannot be made stateless according to international conventions, by default this clause has a disproportionate impact on people from ethnic- minority backgrounds who have a connection to the Commonwealth or a country where they are entitled to dual nationality. It also has an impact on people from Europe, and it impacts Jewish communities who are entitled to citizenship in Israel.
There are already examples of wrongful revocation of someone’s citizenship, in effect destroying years of their life, as in the case of the British man known as E3. He was stripped of his citizenship while in Bangladesh and stranded there for five years. He only recently had his citizenship reinstated, with no explanation by the Home Office as to its actions, no shred of evidence against him and eventually no charge. There needs to be greater transparency as to how this power is used, as the noble Baroness, Lady Fox, pointed out. Surely we cannot have a society made up of degrees of citizenship, where some are full citizens while others are half-citizens and some are perhaps a bit more than half-citizens.
Being British should not mean that people are expected to deny their ethnicity or renounce their religion, their culture, the country of their birth or that which gives them their identity. We should all be able to celebrate every aspect of who we are and still be a citizen of the state able to vote, work, contribute, raise our families and live in freedom and free from prejudice. I understand that this is not what is being disputed, but there are many people in our country right now—good, law-abiding, loyal citizens—who feel threatened, let down and even scared because they feel that they are the target of this legislation due to their ethnic heritage. There is real disquiet among minority-ethnic communities about the impact of this proposed legislation. Certainly, it does not give confidence or engender loyalty and a sense of belonging, which is what I hope the Home Office would wish to see from all those who live here.
Today, expulsion is for extreme crimes. Tomorrow, it may be for wrongfully accused postmasters or for those exercising the right to peaceful protest on some issue. After all, expulsion may be deemed to be
“conducive to the public good”.
On a personal level, I feel utterly disappointed. If your Lordships will permit me to digress, I do so by way of illustrating how others like me feel. I came to this country as a child of six in the 1960s and was subsequently naturalised—yes, I am associated with that dubious term. My late father served in what was then the British Indian Army during the Second World War. He came from Pakistan. His loyalty to the UK throughout his life was without question and his contribution notable, both in wealth creation and in public service. He was a first-generation immigrant familiar with the language and culture of his country of birth.
We now have a significant population of second, third and even fourth-generation people from the Commonwealth who know no other country than the UK. They have local accents, and they are relaxed with local cultural norms. They feel themselves to be 100% British. They are, nevertheless, in a category of those who have links to another country: that of their parents’ or grandparents’ birth. Therefore, they are potentially vulnerable to having their citizenship revoked and—if Clause 9 is enacted into law—perhaps without even the courtesy of being informed beforehand.
I believe that there is a wider debate to be had over whether citizenship deprivation as a whole is in the interests of our country. I support Amendment 32 in the name of the noble Baroness, Lady Bennett, in this regard.
I understand that the broad objective of this legislation is aimed at only a handful of extremists and criminals, but legislation has to be more wind-tight and watertight. What is essentially at stake here is the principle of the rights of all citizens. Are we really going to let a handful of criminals dictate our very values of fairness, justice and equality? I hope that we would trust in our justice system, one that is the envy of the world, and not perhaps a whim and a flick of an administrator’s pen.
As a six year-old newcomer, unfamiliar with the language or customs of this country, I was acutely conscious of any prejudice or discrimination, however subtle. Human beings are good at detecting such subtleties. Unlike my carefree school friends, I grew up very mindful of immigration legislation whenever it was being debated. I was also conscious of the attempts by our various Governments to address inequalities and to establish good race relations. Having recently served in the European Parliament, I can say that I am proud that the UK has done more in the area of equality, inclusion and diversity than any other country in Europe.
We have so much to be proud of as a nation, so let us not bring into law such a blatantly illiberal and divisive piece of legislation. It is not in accordance with our values and will not serve us well. I agree with the conclusion of the Constitution Committee that Clause 9 must be removed from the Bill.
My Lords, I support the amendment in the name of my noble friend Lord Moylan and the intention of the noble Lord, Lord Anderson, to oppose Clause 9; I have added my name to both. I also lend my support to all other amendments in this group. We should support anything that allows us to think again, row back and reset in an area that has developed in ways that we could not have envisaged, and take any opportunity to put it right.
The consequences of Clause 9 are, once again, incremental changes but with far-reaching consequences. I do not intend to rehearse the arguments I made at Second Reading on the history of the state’s power to strip UK citizens of their citizenship. I am grateful to my noble friend Lord Moylan, the noble Lord, Lord Anderson, and the noble Baroness, Lady Fox, for comprehensively and clearly stating the history of this issue, the background, the policy, the changes and its impact.
Each change has been sold by successive Governments as small, incremental, narrow and necessary. But each change has widened further the net of who, how and why the state can strip our fellow countrymen and women of their right. Clause 9 removes the requirement for the Secretary of State to notify someone when they are being deprived of their citizenship in a broad range of loosely defined circumstances, including when it does not appear to be “reasonably practicable”. I am grateful to my noble friend for her recent correspondence, but I am afraid it provides little justification for this change, as the noble Lord, Lord Anderson, said.
Today I want to make three points. The Government have stripped hundreds of citizens of their citizenship over the last decade. Indeed, as recently as 2017, we heard that over 100 people were stripped of it in one year alone. The requirement for notice was, of course, fulfilled in all those cases. The lack of a Clause 9 power did not prevent the Government acting in hundreds of cases. The case of D4, which has been mentioned by other noble Lords, was what led to this clause at the 11th hour, with little debate in the Commons. To help the Committee understand the rationale behind this clause, can my noble friend start by publishing in a single document the numbers of people deprived, the reasons for the deprivation and the ethnicities of those deprived from, say, 1981 to 2010 and 2010 to date?
Secondly, I want to talk about stripping someone of their citizenship. It strips them of their right to live in their country and of their home, their job and their right to family. It often deprives them of the only place they know and forces them to find another place in the world that may or may not accept them—often a place with which they have little if any connection and where their life may be at risk.
Clause 9 seeks to do this without even notifying the person of such a radically life-altering decision. This in reality removes the person’s right to challenge the decision, the basis of it, the accuracy of the facts on which it was based or, indeed, even whether the person stripped is the right person. My noble friend’s explanation in her letter, I am afraid, goes no further in giving any reassurance that appeal rights will be preserved with Clause 9. As the Constitution Committee said in its report on the Bill:
“The House may conclude that this clause is unacceptable and should be removed from the Bill.”
Thirdly, I want to move to a fundamental principle that we are equal before the law, entitled to equal protection and equal treatment. I think the whole Committee can agree on that. In this country, we legislate for what is a crime and publish the law, including sentencing guidelines. If we break the law, we know the consequences that will follow—and follow equally for all citizens. Yet it seems that these fundamental principles are now being eroded.
So perhaps I may ask my noble friend: if an act, a crime, carries the penalty and sentence of citizenship being stripped, should it apply to anyone convicted of that crime? Do my noble friends on the Front Bench agree that sentencing should be linked to crime, not where your grandparents or great-grandparents were born, and that a sentence should not change based on heritage or race? If my noble friends agree with that principle, they will think again and, I hope, before Report they will strike Clause 9 from the Bill, because to do anything else would mean that we further the appalling situation in which we find ourselves now in Britain that seeks to sentence predominately a minority black and brown community differently from the majority white community. Yes, that is hard to listen to, but it should disgust and disturb us in this House.
Being a citizen of this country means that, when you commit a crime, you are arrested, tried and convicted by our laws and our courts. I therefore disagree with the noble Lord, Lord Blunkett. I accept that it is hard for him to revisit his time, but it is punishment and cannot be protection, as he says it is. If the laws, as he says, were brought in as a response to the challenge of terrorism and an international terrorist franchise, surely that required an international response. So how will dumping our citizens who have shown support for that international franchise in another country—likely with less resources—protect us? I would argue that it makes us all less safe.
Finally, this clause has had a chilling effect in our country. It has provoked debates in homes in settled, established communities such as mine and those of other noble Lords. I want to mention a very personal story. When I was growing up, there were two things I remember acutely. The first was a Hitachi case containing everyone’s papers, passports and naturalisation certificates. When anything happened in our home, for example if we moved, that Hitachi case was rescued first, because the fear was real that, without that case, we might be asked to leave.
The story that I heard from my parents was this. My dad is an optimistic guy who always thought that he would build a house in the north of Pakistan in the way that many of us dream of having a villa in the south of Spain. But my mum, like many women, was more realistic and cynical. She worried that one day we would be asked to leave and go back home. I did not envisage that here I would be at 50, not quite dreaming my dad’s dream but definitely worrying my mum’s worry.
So I say to my noble friend that opposition to this clause is widespread. Most of our inboxes are full of briefings and correspondence. The clause is broadly opposed in this Committee. Today we have seen the House at its best; across it and across political divides we have had noble Lords raising their concerns. So I hope that my noble friend will think again before Report.
My Lords, I want to say just a few words because I have listened very carefully, looked at all these amendments and heard some extremely good speeches from colleagues on all sides of the House. However, I am a former Immigration Minister and, looking back at legislation that I was involved in in the 1990s, there were certain Bills in which clauses came forward, we looked at amendments and, frankly, we concluded that, however good the amendments were, the clauses were unamendable and should be removed when they were not effective and where it had been clearly shown that they would have had bad effects.
I am grateful to those who have moved or spoken to their amendments, but I can think of few proposals that can offend as widely and as profoundly as the removal of people’s citizenship. Clause 9, sadly—to me, anyway, as a lawyer—is an affront to our common law, to international legal standards and understandings, and to our various human rights commitments. Critically, it could have appalling consequences for those affected.
As I stated at Second Reading, stripping people of their citizenship—secretly and unilaterally, on vaguely defined grounds such as “in the public interest”—exposes us to actions that fall short of our normal democratic standards, both at home and abroad. It also predicates many legal proceedings.
We all know that the first rule of government is to protect our citizens. I took that very seriously then, as I do know. Clause 9 would place already vulnerable people at greater risk. There are plenty of examples of this. A person may be deported to a country where capital punishment is practised, or where other inhumanities might present themselves. This proposal could hardly be described as protective, as it would open us up to accusations of double standards, which would undermine our efforts to speak out against issues such as the death penalty or cruel and inhumane practices elsewhere.
The UK has a very good and proud record of calling out injustice when it applies to other countries that show a lack of respect for human rights and international standards. At times—not often, but occasionally—we are also good at sporting spurious justifications to mask unsavoury policies. I fear that this clause would grant the UK the same sort of cover and ability to employ the same sorts of excuses to enforce policies that are otherwise indefensible and might be misused.
Citizenship is a valuable status and a clear constitutional right. The issue of revocation is, therefore, to be taken seriously. Any attempt by the state to withdraw an individual’s citizenship must have a clear and robust basis in law. It must assert the primacy of due process, including the right of appeal. Above all, it must be transparent, where the basic rights of notification of action to a subject are followed.
I fear that Clause 9 will create a process that is arbitrary and fundamentally unjust. That is why it should not be supported. I hope that my noble friend can rectify the situation before Report. I listened particularly to the noble Lord, Lord Anderson of Ipswich. He was quite correct; it is very difficult to see that any form of amendment could put this clause right.
My Lords, it is important to situate Clause 9 within the breadth of our immigration law as it stands. For obvious reasons, deprivation powers available to a Secretary of State to strip a person of their British citizenship were historically very tightly drawn indeed. In 2003, 2006, 2014 and 2018, these powers were significantly expanded. They may now be exercised in relation to any British citizen who is a dual national—including British citizens from birth—where the Secretary of State is satisfied that deprivation is conducive to the public good.
If we want to grasp how broad a power that is and how broad are its implications, we need only recall what the Supreme Court said in the Begum case last year—that this includes a situation where the person does not even know that they are a dual national and where they have little or no connection with the country of their second nationality.
The power can also be exercised in relation to naturalised British citizens even where they are not dual nationals if the Secretary of State is satisfied that the conducive to the public good test is passed because the person has acted in a manner seriously prejudicial to the vital interests of the UK. If the Secretary of State has a reasonable belief that the person is able to become a national of another country and that belief turns out to be unfounded, the individual will become stateless.
The leading immigration law silk, Raza Husain, has said:
“This progressive extension over the last two decades has meant that it is no longer necessary to demonstrate that someone is a terrorist or a traitor before stripping them of British citizenship. Individuals may be deprived of citizenship on general public interest grounds of the sort usually invoked to justify deportation, rather than on the basis of their severing the bonds of allegiance that are the hallmark of nationality.”
It is no doubt because of the lowering of these procedural safeguards that the exercise of deprivation of citizenship is now relatively common. In the period from 1973 to 2002, there were no deprivation orders at all. I am told that, since 2011, the power has been used in at least 441 cases, with 104 in 2017 alone. Of course, Clause 9 has the potential very significantly to increase the use of this power. The noble Baroness, Lady Mobarik, has spoken very compellingly about the disproportionate impact that this will inevitably have on non-white British citizens.
In 1958, the great United States Chief Justice Earl Warren, who—we might remind ourselves—was a Republican put on the Supreme Court by President Eisenhower, said that the loss of nationality amounts to
“the total destruction of the individual’s status in organized society … the expatriate has lost the right to have rights.”
There he was citing the well-known formulation of Hannah Arendt. Deprivation of citizenship is such a far-reaching and draconian power that it must be accompanied by proper procedural safeguards. Clause 9 goes in precisely the opposite direction, removing the most basic safeguard—it is really just at the Home Secretary’s discretion even to tell the individual that their citizenship is lost to them. I agree that, in some circumstances or contexts, or for some reasons, this may be necessary and notice cannot be given to an individual. We can all, I suppose, imagine situations in which that might have to occur. But to permit the Home Secretary to take this drastic course, simply on the basis of a determination by them that this is in the public interest, is a procedural safeguard so weak as to be completely insupportable.
My Lords, we have benefited from the intervention of the noble Lord, Lord Macdonald of River Glaven, because he has reminded us that, although we have heard some very moving speeches going a little wide of the mark, Clause 9 is all about how you notify the unnotifiable.
I will go back to the speech of the noble Lord, Lord Anderson of Ipswich, and declare the interests that I have in the register. We as a House have to decide what we do about the criminals who wish to do us serious and long-lasting harm in the context of this. Perhaps it is too wide-ranging, but it is a necessary bid to try to ensure that, where we have people who wish to do us harm, they are somehow prevented from our giving them, under existing legislation, the ability to do so.
I have very carefully read the judgment of the Court of Appeal, and the key question that we now have to turn our minds to is whether we wish to empower the Secretary of State to deprive a person of citizenship without giving notice. In many ways, this debate should be all about that because, speaking I suppose as a practising solicitor, I cannot find Clause 9 as a change in the policy of deprivation of citizenship—the change proposed is all about notification. So Clause 9 does not allow the Home Secretary to remove citizenship on a whim, it is not targeted at particular ethnic minorities and it does not change the reasons why a person might be deprived of their British citizenship. Clause 9 does not remove the right to appeal a decision to deprive. I cannot see that law-abiding British citizens have anything to fear from Clause 9.
We are charged by the court in the following terms. Lady Justice Whipple said this in the ruling delivered yesterday:
“There may be good policy reasons for empowering the”
“to deprive a person of citizenship without giving notice, but such a step is not lawful under this legislation. If the government wishes to empower the Secretary of State in that way, it must persuade Parliament to amend the primary legislation. That is what it is currently seeking to do under the Nationality and Borders Bill”.
She concluded, which brings us back to where we are now, that
“it is for Parliament to decide,”
This has been a valuable debate, but I think we have strayed too far from the key question: how do you notify the unnotifiable?
There are evil people. I am probably one of many Members of this House who has received letter bombs and death threats. When I was in the Cabinet, I had death threats from three separate organisations. Fortunately, the Post Office intercepted the letter bombs. There are people who wish to kill us, to injure us and to destroy the fabric of our society, and we must try to focus on how we are to stop that happening.
My Lords, I did not speak on Second Reading, but I am delighted to have been here today to have heard the speeches from noble Lords, and what an interesting debate it has been. I have learned a good deal, and I am indebted to the Bingham Centre, whose publications I now read avidly to inform myself about legislation that comes before this House.
I am rather pleased to be following the noble Lord, Lord Hunt, because I was persuaded of the problems with Clause 9 by one of the paragraphs in the analysis from the Bingham Centre:
“Clause 9 departs from the requirements of the Rule of Law by allowing a British citizen to be deprived of their citizenship without even being warned about it, or told the grounds for it. There is zero judicial or parliamentary oversight of the dispensation of notice, and the grounds can be as insubstantial as the mere administrative inconvenience that it is not reasonably practicable to give notice.”
If that is what is intended by the legislation before us, there is definitely a chilling effect, as referenced by the noble Baroness, Lady Warsi, in the suggestion that this is how we should operate. I do not do demur from the argument that there will be difficulties at some point, as outlined by the noble Lord, Lord Hunt, but these are very wide powers and they have, as the Bingham Centre says, no judicial or parliamentary oversight at the point at which they would be invoked. Giving these powers to the Home Secretary—any Home Secretary—is unacceptable. In the words of the noble Baroness, Lady Mobarik, they would be divisive and would, in my view, not accord with the values of fairness, of justice or of equality before the law.
My Lords, my noble friend Lord Hunt narrowed the debate to the issues that are in the clause, but the noble Baroness, Lady Blower, has widened it again by discussing broader powers. I do not have my name to any of the amendments, but I have been listening carefully to the speeches; indeed, we have been listening for the last hour and a quarter. Like other Members of your Lordships’ House I have had a volume of briefing, some of it arriving very late—a point made by the noble Baroness, Lady Hamwee, earlier in our proceedings. It is quite hard to take it on when it arrives the morning before you are due to participate. Some of that briefing seems to be fairly hyperbolic, and I am not sure it is in terms that help a calm discussion of what has at its core the really serious point that my noble friend made about keeping people safe. Phrases such as “two-tier citizenship” do not help us to establish in a calm way what the underlying effect, impact and purpose of the clause is as presently drafted.
That said, when you pick up the Financial Times of 21 January and see that the president of the Law Society has the lead letter with the headline,
“Legal changes will put UK rights culture in peril”,
while other submissions suggest that the rule of law is being undermined, one has to sit up and take notice. I am not a lawyer, as the House will be aware, but I absolutely, comprehensively and unequivocally support the rule of law as a cornerstone of our society. So, in the couple of minutes that I have, I would like to try to pierce the fog of claim and counterclaim to see if one can reach any sort of firm ground. My respect for the rule of law stems from a lecture that I heard 50 years ago. It is our fate in this House to listen to an awful lot of speeches and an awful lot of lectures, and many of them disappear from one’s mind almost as soon as the speaker sits down, but this lecture from 50 years ago rings as true to me today as it did then. It came about because for a time after I finished university I went to live in the United States and Canada, and nearly stayed there. I went to do an MBA at the Wharton School of finance in Philadelphia. The school used to arrange for outside speakers, eminent people in various fields, to come and talk about their experiences.
One such person was a Cambridge University professor called Peter Bauer, later a member of your Lordships’ House as Lord Bauer, of Market Ward in the City of Cambridge. Peter Bauer was Jewish, born in Budapest in the closing years of the Austro-Hungarian empire, 1914-15, and his great contribution was looking at the role of development economics and how we manage to deal with it. That afternoon, he explained how no country could hope to survive without two things: the rule of law and respect for property rights. He went on to say that the rule of law was not an absolute; it was relative, and it depended on what he called the informed consent of a population—that is, if a large proportion of the population, having heard the arguments, had an informed position and did not agree with it then the rule of law was not assisted but undermined. In his view, to use an oft-quoted phrase, the law is too important to be left to the lawyers. In considering the difficult issues raised by the speeches and by Clause 9, I would like to test them against the Bauer “informed consent” test. In that sense, I have drawn certain conclusions but I am not on the Front Bench, so I hope my noble friend can reassure me that the interpretation I have made of the clause is in fact in accordance with reality.
Let us assume that we are on the lower deck of the Clapham omnibus. The passengers on the Clapham omnibus are our fellow citizens. They are a questioning crowd. They do not think the Government always have a lot to offer, and they think political parties of all persuasions probably have rather less. If we were to begin by explaining to them that our wish was to discuss the issue of the deprivation of citizenship, they would begin by asking, “Are the Government proposing to change the basis on which citizenship can be removed?” As I understand it, the answer is no. “If there is no change to that,” they would say, “then what is the change going to be?” The answer would be that if, after reasonable effort, the person who had done terrible things to our country could not be found, citizenship could be removed without notice being given directly to the person affected.
The people on the bus might then ask us, “If this change were not made, would people be able to hide themselves away to evade justice?” The same question might be asked about people who happened to live or ended up in war zones or areas of conflict. We would have to tell them that that would mean that they could not have their citizenship removed, because we could not reach them. Because they are suspicious of the Government, the travellers on the bus would ask, “Could the new procedures be appealed against, or are they just a fiat, without any appeal?” I understand that they can be appealed against. Because it is a Clapham omnibus, there will be people from all parts of our community, minority as well as majority, and they would want to be reassured that this was not going to be used, as my noble friend Lady Warsi suggested, against one particular part of our community. There is no evidence that I have seen that it is so designed.
Finally, I think they would say, “How big a problem is this?”. In particular, the point made by the noble Lord, Lord Anderson, “How many people have had their citizenship removed on the grounds that it was not conducive to public good?” That is a big catch-all. I understand that fewer than 20 people on average have had their citizenship removed in recent years. Will my noble friend confirm that? If we had informed consent of what was planned on the Clapham omnibus—if Peter Bauer’s test was used—I think people would understand why this was being done.
We have heard a lot about the important moral case for protecting the position of everybody in our society, including that very small number of people who set out deliberately to do us terrible harm. However, as we struggle to balance the conflictive needs of freedom and security, we must not overlook the moral case for the silent majority—the millions of our fellow citizens who look to the Government to keep them safe and who do not expect offenders to be able to evade the consequences of their actions.
Could some of the sharpest corners in this legislation be smoothed off? I do not know, but it is because of those millions of silent majority who would see many of the objections to Clause 9 to be perverse, unfair, unreasonable or possibly all three, that I think the Government have so far got the balance right in what they are seeking to achieve in Clause 9 and why I support it.
My Lords, I am not a lawyer either, but like my noble friend Lady Blower I have read the Bingham Centre’s report on this. I want to draw your Lordships’ attention to one aspect of it, which I do not think has been mentioned—I apologise if it has. There have been so many good speeches, particularly from the other side of the House, and across the House.
According to the report, the clause includes a retroactive power which would allow what was not lawful at the time to be made lawful now. The report suggests that this is retroactive lawmaking of the worst kind and particularly offends the rule of law. I think we should do away with the clause altogether. I have also read an article by Dominic Grieve, the much-respected former Conservative Attorney-General, on the “ConservativeHome” blog, which I must admit is not normally at the top of my daily reading list. It is an instructive piece. I will not read at length, because time is getting on, but he calls it,
“using legislation as a form of propaganda”
That is from a former Attorney-General and worth taking note.
I also draw attention to the fears that this is creating in the wider public. I have just had an email saying that over 100 organisations have written an open letter to the Prime Minister asking that this clause be removed. I hope that, when we come to Report, the House will remove this clause, which offends the rule of law.
My Lords, I am also not a lawyer, but we have Amendment 29 in this group and we join the noble Lord, Lord Anderson of Ipswich, in opposing the Question that Clause 9 stand part of the Bill. I accept that Clause 9 is about giving notice, but the amendments in the group go beyond that. The main concerns that this group addresses are the significant increase in the use of the power to deprive British citizens of their citizenship and the new provision of dispensing with the requirement that the Secretary of State requires notice to be given to a person deprived of citizenship.
There have been many detailed and compelling speeches and I do not intend to repeat them, but I will refer to the powerful and personal speech of the noble Baroness, Lady Warsi, about how this provision is affecting some British citizens. This is not going to affect some British citizens, like me, at all, but when you hear her personal recollections of the fear that this clause is generating and about the importance of the family attaché case—reinforced by the noble Baroness, Lady Mobarik—you understand that, although it may not be targeting particular communities within the cohort of British citizens, it is certainly causing distress among certain parts of that cohort.
To answer the question of the noble Lord, Lord Hunt of Wirral, on what we do with those people who wish to do us harm, I say that we prosecute them in the courts. We do not dump them on other countries.
Depriving someone of their citizenship is a very serious step to take and it is being taken with increasing regularity. To then do away with the requirement even to notify the subject is totally unacceptable. How can anyone take any steps to correct or challenge a decision that they know nothing about? The noble Lord, Lord Hunt, talked about how we notify the unnotifiable. Even in the case that he and other noble Lords referred to, which has been in the courts, the individuals were not uncontactable; they were not unnotifiable within the law. As the noble Lord, Lord Anderson of Ipswich, explained, notice could have been served on that individual, but the Home Office chose not to. In the figures he gave about how many times that has stopped the Home Office from serving notice on somebody of deprivation of nationality, the answer was zero. Clause 9 is not only unreasonable but, based on the facts, unnecessary as well.
With the increased use by the Secretary of State of the power to deprive a British citizen of their citizenship, we support Amendment 28 in the name of the noble Lord, Lord Anderson of Ipswich, which says that reviews of the use of the power should be annual and not every three years. We also agree with Amendment 27 in the name of the noble Lord, Lord Moylan, to restrict the circumstances in which someone can be deprived of their British citizenship. My noble friend Lady Hamwee will address our Amendment 29, which removes the power of the Secretary of State to directly deprive a British citizen of their citizenship, requiring an application to be made to a court.
We agree with the principle behind Amendments 32 and 33 in the name of the noble Baroness, Lady Bennett of Manor Castle, that the powers the Secretary of State has to deprive British citizens of their citizenship need to be curtailed and the process made more transparent, but we believe that our Amendment 29 achieves those objectives.
My Lords, I sense very well that the Committee would like to move on, so I will be much quicker than I had intended to be, but my noble friend Lord Paddick has asked me to speak to Amendment 29. Before I do so, I cannot resist rising to the challenge about my party’s involvement in the 2014 legislation. Perhaps after this debate I will explain to the noble Lord, Lord Moylan, the concessions gained in negotiation at that time in response to the agreement.
Amendment 29 would change the requirement from an assessment of conduciveness, if that is a word, to the public good to necessity in the interests of national security. I thank the Minister for her letter following Second Reading. I could not help thinking that the two examples she gave of where Clause 9 could apply probably were matters of national security. She says so for one example, and the other is where it is assessed to be
“in the interests of the relationship between the UK and another country”.
That must be very close to national security, unless the issue is a very long way away from the other country’s security, which would not be a good basis on which to move forward. The amendment would change the requirement of an order to allow for judicial involvement. These two examples actually show why the matter should go to a judge.
I am editing my speech as I go. Reference has been made to particular communities being especially affected by this provision. I say to the passengers on what, in my neck of the woods, is the 337 bus to Clapham that something does not need to be designed to have a particular effect. If it has that effect, it falls into the area we are concerned about.
Our amendment would also add to the exclusions a person holding British citizenship by birth, and where it would
“affect the best interests of a child in the family”.
That is looking at a fairly wide family. Use of the power would require an annual review, which I think is in the amendment from the noble Lord, Lord Anderson.
My Lords, I have listened to this debate with enormous care. I have conflicting feelings about it. I do not know whether I am prouder of the quality, logic and humanity of so many of the speeches, particularly from the Benches opposite, or whether the more compelling emotion I feel is anger that the speeches even had to be made. Unsurprisingly, I will speak against Clause 9 standing part of the Bill and in favour of the various amendments attempting to dilute its pernicious effect—and even more in favour of the proposed new clauses that attempt to go further.
I almost feel as if I and the noble Lord, Lord Hunt of Wirral, have listened to two completely different debates. The absolute tour de force by the noble Lord, Lord Moylan, and other speeches on these new clauses were not wide of the mark, because they quite rightly acknowledged that Clause 9 deals just with notice. They conceded that point, but talked about the rot that goes further back in terms of two-tier citizenship and the more precarious version of citizenship that some people are coming to experience because of the increasing use of powers of deprivation, and because these will inevitably have to be used more against some groups within the citizenry than others.
Why is that inevitable? It is inevitable because some citizens, more than others, can be imputed to have links with other countries whether or not they really do, they would ever apply for citizenship elsewhere and that would even be granted. We have seen people deprived of citizenship on very spurious bases. That is, of course, because the United Kingdom has obligations not to make its citizens stateless, and therefore the vulnerable people are those who are thought, imagined or imputed to potentially be able to apply for citizenship elsewhere. That is why these powerful speeches were not hyperbolic or wide of the mark. They were right in law, right in history and right in terms of the experience that some of us have as British citizens in this country.
I am one of them. I have the privilege to have been born a British citizen. By definition, being here means that I have lived a very fortunate life. My parents came to this country in the late 1950s as lawful migrants at the invitation of Mr Macmillan. That did not prevent them being beaten up while I was in the pram by racist skinheads who had been encouraged by the rhetoric of Enoch Powell. That is my lived experience, and it is not hyperbolic or irrelevant.
Legislation is part of the national conversation, and my learned friend Dominic Grieve—who I sincerely hope will one day be in this place, because he would be a fantastic asset to this Committee of your Lordships’ House—is right to ventilate the possibility of legislation being part of dog-whistle rhetoric. I am really sorry to have to say this, because I feel very bipartisan about this, not least because of some of those fantastic speeches from the Benches opposite, but Clause 9 is part of the culture war currently being waged in this country. It makes people like me, personally, feel very vulnerable.
I too have had death threats periodically in my career, without the benefit of ministerial security. I tend not to bang on about this too much, but I know that these kinds of threats—whether they come on social media or in the post—come in waves and cycles that are affected by the national discourse, not just speeches and rhetoric but pending legislation. It was the anxiety about those times past that led my parents to want to register before the 1981 Act came to be. I sense, in the correspondence that I am getting from people in minority communities in particular—and the noble Lord, Lord Moylan, set out the various communities that are particularly affected—that they are now feeling the way my parents felt in the 1970s, thanks to Enoch Powell. That is totally unacceptable, and that is one of the reasons why Clause 9 is unacceptable.
The noble Baroness, Lady McIntosh of Pickering, was quite right to say that due process is effectively impossible if you have not had notice. It is not a complicated point to grasp. Somebody might be telling lies about Joseph K, or probably Joseph Khan. If he does not even have notice of the deprivation, how effective is any right of appeal? It is an utter nonsense.
I have mentioned the noble Lord, Lord Moylan, probably to his eternal embarrassment. The noble Lord, Lord Anderson, was so right to point out the comparison with the very few other jurisdictions that take draconian powers to take citizenship away and to say that even in Australia and New Zealand, the powers are much more restricted and there are safeguards, which are totally absent here.
With the greatest of respect to my noble friend Lord Blunkett, with whom I did not always agree during the war on terror, just because you intend something to be protective and not punitive, that does not mean it is not punitive in effect. Some of us remember the Belmarsh case in which probably the greatest jurist of recent times in this country, Lord Bingham, gave the leading speech. Just because the Government of the day said, “This is not imprisonment; this is just immigration detention, pending removal”, it did not wash then and does not wash now. We have gone further down that road.
It has always been possible to discriminate between citizens and non-citizens in relation to their rights. This is understood, but if you are now able so readily to take citizenship away, what is the value of that citizenship? What you do, increasingly, is to use administrative powers to sidestep the rule of law and criminal due process in particular. Noble Lords in this Committee were so right to say that the way we address threats from dangerous, criminal people, including terrorists, is that we track them down, charge them, put them on trial, convict them and then incarcerate them. That is right not just in principle but in security terms.
I ask the Committee to think about Clause 9, the amendments and the wider discourse about deprivation of citizenship in two ways. One way to look at it is in terms of what we are saying to citizens about the bond that the noble Lord, Lord Moylan, described. What are we saying to them about the value of being part of this British family—how important and sacred it is, and how it is a two-way street with rights and responsibilities? What are we saying if this can be taken from them so easily, not by a court but by the Home Secretary of the day? How are we making people feel about their belonging in this country? If I feel the anxiety that I have over the last couple of hours, how do we think that people with far fewer privileges than me feel as minority communities in this country?
The second thing I ask the Committee to consider is not just citizenship here but the UK’s place in the world, as a responsible citizen on the world stage. If every grown-up, mature and responsible democracy in the world chooses to deal with threats to its security by depriving bad people of their citizenship, and other countries follow our lead, what will the consequences be for global security? If every mature democracy gets to just take citizenship away from bad people, whoever they are—terrorists, murderers or paedophiles—where will we be then? We will be dumping our citizens like toxic waste in international waters. How will that make Britain or the world a safer place?
My Lords, I thank the Minister for her letter to all Peers of 25 January. If I understood correctly what the noble Baroness, Lady Warsi, said, I rather gather that it did not make a great impact on her. I am probably in the same category. Nevertheless, I appreciated receiving the letter.
I have added my name in relation to Clause 9 standing part of the Bill, which was spoken to with such clarity and authority by the noble Lord, Lord Anderson of Ipswich, and will speak to that. No doubt there will be a need for some reflection on all the amendments in this group, as well as the stand part debate, as to what may or may not happen on Report.
Frankly, through Clause 9, the Government—metaphorically speaking, I stress—take no prisoners. They seek to amend the long-standing position, under the British Nationality Act 1981, that an individual must be notified if they are to be deprived of their nationality. That requirement of prior notice is removed by Clause 9
“if it appears to the Secretary of State that … the Secretary of State does not have the information needed to be able to give notice … it would for any other reason not be reasonably practicable to give notice … or … notice … should not be given … in the interests of national security … in the interests of the relationship between the United Kingdom and another country, or … otherwise in the public interest.”
The noble Lord, Lord Anderson of Ipswich, made particular reference to that last part on the basis that it is so broad and wide-ranging.
Yet, as we know, the present rules already allow for citizenship deprivation letters to be delivered to an individual’s last known address. As the noble Lord, Lord Anderson, pointed out—this was repeated by the noble Lord, Lord Paddick—the Government said that there have been no cases where the requirement to give notice stopped a deprivation of citizenship order coming into being. Of course, that begs the question: why do we have Clause 9 at all? I do not think that we got an answer to that in the letter from the Minister of 25 January 2022.
The number of people deprived of their citizenship, which the Government can now do on the basis that it would be
“conducive to the public good”,
has risen over the past 12 years. We have heard a variety of figures during this debate as to the extent of that deprivation and the numbers involved. I have a figure, too. It does not tally with some of the figures that have been given but the figure that I have is that, between 2010 and 2018, around 175 people were deprived of their citizenship on the grounds that it was conducive to the public good. A significant number happened in 2017, as has been said; the figures certainly seem to be on an upward trend.
In that context, information on the Court of Appeal decision that has been referred to that upheld a High Court ruling—the D4 case—says that the Home Secretary
“argued that notification had been given to D4, who has been detained in the … camp in Syria since January 2019, by simply placing a note on her Home Office file, relying on regulations introduced without parliamentary approval.”
Under Clause 9, we are faced with even wider powers being given to the Home Secretary. In the light of a note simply being placed on a Home Office file, relying on regulations introduced without parliamentary approval, how are we expected to have any confidence in the provisions of Clause 9 being applied fairly and objectively when this kind of thing is going on and has been brought to our attention? In how many cases has this been done, with a note simply being placed on the Home Office file? It certainly does not inspire confidence in giving the Home Office the kind of powers that are provided for in Clause 9. I know that the Minister will tell me that these powers relate only to the notification of a decision to deprive, but it is the criteria against which the conclusion can be reached to give notification of a decision without notice that are of concern.
If Clause 9 comes into effect, we can surely be in no doubt that the numbers will likely increase, because if the Government do not intend to use the additional power that Clause 9 gives them to deprive people without notice and without judicial involvement of their British citizenship, why are they seeking to include it in the Bill? It must be because they intend to do notices in this way, despite what the noble Lord, Lord Anderson, has said about there having been no cases where the requirement to give notice had stopped a deprivation of citizenship, according to the information that he has been given. Assuming that they know the answer, in the light of what was said by the noble Lord, can the Government say what the number of people deprived of British citizenship would have been in each year since 2010 had this power to deprive citizenship without notice been available, compared with the actual number who had their citizenship withdrawn in each year since 2010?
The Bill says that a person so deprived of their citizenship without notice and without judicial involvement, and in secret, will be able to appeal to the First-tier Tribunal but, as so many other noble Lords have asked, how do you appeal against something that you do not know about? It could result in statelessness, yet the Government have decided not to tell you; they appear to have fairly wide-ranging criteria against which they can reach that decision and do not need to give you notification. Is not the reality that one of the key purposes of Clause 9, about deprivation of citizenship without notice, is to introduce measures that will in effect and in reality reduce rights to appeal? Is that not what it is all about? Will the Government be disclosing publicly the names of those from whom they have withdrawn citizenship without notice, so that we all know what was being done in our name and how frequently?
Other questions obviously arise in relation to Clause 9, but I am doing my best to stick to what the noble Lord, Lord Hodgson of Astley Abbotts, wanted, which was to address the issue that is raised in Clause 9, although I agree with other noble Lords that all the points that have been made have been related to Clause 9. How and by whom will the definitions be determined of
“in the interests of national security”
“in the interests of the relationship between the United Kingdom and another country”
“otherwise in the public interest”
referred to in Clause 9? How and by whom will it be determined whether the Secretary of State has the information needed to be able to give notice and whether for any other reason it would be “reasonably practicable” to give notice? Who will make that decision? Will it be made by the Home Secretary? How hard will the Secretary of State be required to try to obtain the information needed to give notice to activate Clause 9? Against what criteria will the Secretary of State have to show that it would not be reasonably practicable to give notice to activate Clause 9? Where does that power live? Where does that decision-making rest?
As has been said, the consequences of this clause are likely to be felt most, but certainly not exclusively, by those from ethnic minority backgrounds. It is unlawful to deprive someone of their citizenship and leave them stateless. Even so, the Home Office is still on record as saying that British citizenship
“is a privilege, not a right.”
Yet without citizenship, people do not have rights. It has been estimated that nearly 6 million people in England and Wales could be affected and that, under this proposal, two in five British citizens from an ethnic minority background are eligible to be deprived of their citizenship without being told, since they have or may have other citizenships available to them. That compares with one in 20 characterised as white. That is a sobering consideration when looking at the merits or demerits of Clause 9.
It is time that we heard from the Government, but I say in conclusion that Clause 9 should not be in the Bill. As the noble Lord, Lord Anderson of Ipswich, said, there are no safeguards, there is no accountability in respect of its powers, provisions and associated broad criteria and it is likely to increase feelings of discrimination and fear, apparently for no measurable or meaningful purpose at all.
My Lords, I thank all noble Lords who have spoken on this late Thursday afternoon, and those who tabled Amendments 25, 26, 27, 28, 32 and 33, for their contributions, which have made it a very lively debate. Some 14 noble Lords talked about wider deprivation, which is obviously not in Clause 9, and five noble Lords spoke on Clause 9 itself. I would like to address some of the most irresponsible scaremongering surrounding Clause 9 that I have probably ever heard. As my noble friend Lord Hodgson of Astley Abbotts says, there have been some quite overblown comments today.
It is very important to be clear about what Clause 9 is and what it is not. It is not, as my noble friends Lord Hodgson of Astley Abbotts and Lord Hunt of Wirral said, an amendment to the deprivation power that has been in force for 100 years. It does not allow the Home Secretary to remove citizenship on a whim. I look forward to a conversation with my noble friend Lady Mobarik, as I was concerned by her level of fear on this. Clause 9 will not strip 6 million people of their British citizenship without warning. It is not targeted at particular ethnic minorities, and it does not change the reason why a person may be deprived of their British citizenship. It does not remove the right of appeal against a decision to deprive law-abiding British citizens, like my noble friend Lady Mobarik, of their citizenship; they have nothing to fear from Clause 9, nor does the mother of my noble friend Lady McIntosh of Pickering, or the grandparents of my noble friend Lady Warsi. They could not be deprived because they have done nothing wrong.
I might add here that the people who need to declare any interest or concern are not those of the Windrush generation, not Jews, not Muslims, and indeed not Catholics such as myself with dual nationality, but terrorists—people who would actually do us harm. I glean from the noble Baroness, Lady Jones of Moulsecoomb, that she does at least support the removal of citizenship in fraudulent applications, if I understood her correctly.
I will start by addressing the amendments relating specifically to Clause 9, and then move on to the amendments that focus on the wider deprivation power. I thank the noble Lord, Lord Anderson, for Amendment 28. I reassure him that the Government have repeatedly made clear that all deprivation decisions are taken carefully, after full consideration of the facts, and in accordance with domestic and international law. I do not think he disputes that. The decisions are, as he knows, already subject to judicial oversight via the statutory right of appeal, and individuals are also able to seek judicial review proceedings, where appropriate, on any aspect of the decision-making process not captured by the statutory right of appeal.
In addition, the Independent Chief Inspector of Borders and Immigration has a wide remit to inspect any aspect of the immigration and nationality system, and at any time can review the use of deprivation powers. The Home Secretary can also commission specific reviews, as desired, which the noble Lord, Lord Anderson, referred to, particularly with regards to their frequency. I look forward to speaking further with him on that that before Report. He will also be aware that the Supreme Court of Appeal and SIAC, the Special Immigration Appeals Commission, have recently affirmed the Home Secretary’s competence to decide on matters of national security.
The noble Lord commented, as did the noble Lord, Lord Paddick, on the number of cases in 2017 and the status of figures since then. The rise in 2017 is due to the large increase in global terrorism. More broadly, I want to assure the noble Lord that the Home Office is committed to publishing its transparency report into the use of disruptive powers, and will do so in due course. I look forward to continuing to engage with him on this matter and others pertaining to this Bill.
My noble friend Lady Warsi asked about the numbers, and I think others did, since 2010. There was an average of 19 between 2010 and 2018. The noble Lord, Lord Anderson, also asked about the comparison with Australia and New Zealand, and kindly shared his papers on this with myself and my officials. I have listened to his points extremely carefully, and I intend to consider them carefully and to continue to engage with him outside this Committee.
Amendments 25 and 26 would mean that we could not deprive a person of British citizenship purely because we did not know where they were and could not get the notice to them. We would be reliant on people whose conduct is serious enough to warrant deprivation keeping in contact. It is not correct to say that we will not ever have to notify someone of deprivation. Of course, if they come back to the UK—and most of them are outside the UK—they will find out; if they do not, one presumes that they did not try to when they came back or do not care.
I move now to the amendments relating to the wider power to deprive someone of citizenship. This is an extremely serious matter and is rightly reserved for those whose conduct involves very high harm or poses a threat to public safety, or those who obtained their citizenship by fraudulent means. The UK Government are absolutely clear that no one citizen should have the right to destroy the lives of other citizens in this country.
As I have mentioned, it cannot be right that we risk the UK’s interests to make contact with dangerous individuals who wish us harm, nor is it right to allow them to exploit a loophole in legislation and retain the benefits of British citizenship simply by removing themselves from contact with the Government or relocating to a place where we could not reasonably send them notice. Amendment 32 would completely remove the ability of the Home Secretary to make a deprivation decision in relation to those high harm individuals. Deprivation would then be possible only where a person has obtained citizenship by fraudulent means.
We have sadly often seen the effect of terrorist attacks on our way of life or the impact of serious organised crime on the vulnerable. The threat picture, as noble Lords have spoken about, is in direct correlation to deprivation—in other words, an increase in the threat picture leads to an increase in the number of deprivations. The 464 figure that the noble Baroness, Lady Jones, cited combines both the fraud and conducive to the public good figures. It cannot be right that these people keep their British passports and remain free to come in and out of the UK as they please. It is the Government’s duty to keep the public safe, and we do not make any apologies for seeking to do so.
But I understand the concerns about “secret” decision-making. Deprivation decisions are made following very careful consideration of advice from officials and lawyers and in accordance with international law. Some of that consideration involves sensitive information and evidence, as noble Lords might be aware, and it would not be in the public interest if that evidence were made public. For example, it could jeopardise ongoing criminal investigations or undercover operations and thus harm those working on behalf of the Government to keep us safe. That is why appeals against a deprivation decision relying on such evidence are heard by the Special Immigration Appeals Commission, or SIAC. Amendment 33 would remove the ability to rely on this sensitive evidence, because with no means to securely air it at the appeal stage, the Government would not be able to take deprivation decisions in these cases. Also, removing the public interest test for certification of deprivation decisions into SIAC risks creating an anomaly within the immigration and nationality system as grounds for certification are the same regardless of case type, and the special advocate system and rules of court ensure that any evidence which can be heard in open court is done so.
I turn next to Amendment 27, which would take us back to the limited grounds for deprivation that were historically in legislation. In today’s modern world, the threat to the UK’s safety and security is not restricted to those who have shown themselves disaffected towards the Crown or engaged with an enemy during times of war, nor is it restricted to those who are not automatically British. This amendment would restrict deprivation of fraudulently acquired citizenship to cases where it was also conducive to the public good for the person to be deprived. The right approach cannot be to make it more difficult for the Home Office to address abuse of our immigration and nationality system while those who have actually cheated the system retain the benefits of the British citizenship that they were never entitled to.
Moving on, Amendment 29 would remove our ability to deprive those who, despite being British by birth, bear no loyalty to this country or its people. Serious organised criminals and those who conduct high-harm acts, even those who were not British by birth, could not be deprived of their citizenship. The threat to the UK’s safety and security is not restricted to those who are not British by birth, nor is it limited to those who pose a threat to national security. Consideration of the child’s best interests is already a primary consideration in deprivation decisions which affect them. However, this amendment would mean that it would not be possible to deprive someone who posed a threat to national security if it affected the best interests of a child in their family, unless the person has conducted themselves in a manner seriously prejudicial to the fundamental interests of the UK or a British Overseas Territory.
This amendment would also restrict deprivation of fraudulently acquired citizenship to cases where a court gave its consent. The right approach cannot be to make it more difficult to address abuse of our immigration and nationality system, asking a court for permission to make a decision that they will consider again when the person exercises their right of appeal. In the meantime, those who have cheated the system retain the benefits of the British citizenship they were never entitled to.
The amendment would also increase the frequency of the review of the deprivation power at Section 40(4A) of the British Nationality Act 1981 to an annual review. I think noble Lords have made the point that this power has been in force since 2014 and has not been used to date. It would not be appropriate to increase the frequency of reviewing a power which has never been used, but I look forward to further discussions with the noble Lord, Lord Anderson, on this issue.
Finally, as I have said, deprivation decisions always come with a statutory right of appeal. Reviews undertaken in respect of such cases where there are live appeals or appeal rights not yet exercised or exhausted risk undermining the statutory provision and the judiciary’s independent role. Such a review would place an additional burden on the departments involved in supporting the Home Secretary in such cases, as well as the burdensome cost to the taxpayer.
I will conclude by speaking to the need for Clause 9 as a whole. It is necessary in order to avoid the situation where we could never deprive a person of British citizenship just because it is not practicable or possible to communicate with them. Preserving the ability to make decisions in this way is vital to preserve the integrity of the UK immigration system and protect the security of the UK from those who would wish to do us harm. We cannot do that if our hands are tied because we have to give people notice in situations where they have removed themselves from contact. We have, sadly, too often seen the effect of terrorist attacks on our way of life or the impact of serious organised crime on the vulnerable. It cannot be right that these people keep their passports and remain free to come in and out of the UK as they please.
I will touch on the Court of Appeal case that has been mentioned by a number of noble Lords today. It found that the Secretary of State for the Home Department is entitled to decide that
“deprivation of citizenship is conducive to the public good because, by reason of the individual’s harmful conduct, he ought not to be allowed to enjoy the benefits of British citizenship generally, quite aside from the possibility of his removal from the UK.”
My noble friend Lady Warsi asked about the meaning of
“conducive to the public good”.
In simple terms, it means that it is in the public’s interest that the person is not British.
I turn to something that my noble friend Lady McIntosh asked about. I talked about people coming in and out of the country—they are often deliberately hiding from the authorities to evade detection and being brought to justice. Proposed subsection (5A)(c)(ii) refers to where sensitive information tells us where a person is but revealing that could harm our relationships with other countries—namely, if it is from their intelligence services. So it is the Government’s duty to keep the public safe, and we make no apology for trying to do so. But we do not want to deny a person their statutory right of appeal where we have made a decision to deprive, so this clause also preserves that right.
The noble Baroness, Lady Lister, asked whether this retrospective element just covers our backs. We are actually seeking to affirm our robust and effective system. It is important in cases where we have already made a decision to deprive that the subsequent deprivation order remains valid and effective to protect the UK from high-harm individuals. In cases where we have already made a decision to deprive but, for one reason or another, we have not notified the person, this clause also ensures that such decisions, as well as the subsequent deprivation, are still lawful.
The noble Baroness, Lady Chakrabarti, my noble friends Lady Warsi and Lord Moylan and the noble Lord, Lord Paddick, talked about a criminal justice response to the most high-harm individuals—of course, not all of them have committed criminal offences—by putting them in prison. In this country, we have seen what happens when we do that: they get out, and a few of them have either attempted or succeeded to do members of the British public the worst harms.
On the point of the noble Lord, Lord Paddick, about dumping people outside the UK, I say: we are not—most of them are already outside the UK. It is important that deprivation orders made before this clause comes into force remain valid—otherwise, individuals whom the Home Secretary has already decided should be deprived of their citizenship because it is conducive to the public good could have their citizenship effectively reinstated and could be free to travel in and out of the UK, with dire consequences for national security.
I will leave the last words to the noble Lord, Lord Blunkett, who talked about his history of the wider power and challenged this House to remove the fear. After what I have said today and some of the further discussions that I will have with noble Lords before Report, I hope that we are on our way to removing that fear.
My Lords, I think my noble friend has been misadvised in characterising Amendment 27 as imposing any new or further restriction on the power to deprive in the event of obtaining nationality by fraud. That simply is not so; they have misconstrued that clause. Can I ask her a very narrow question? She referred in her speech to the use of deprivation in cases of serious organised crime. Did she mean serious organised crime apart from terrorism?
It could encompass both, but in the context of what I am talking about, some serious organised crime is outside of terrorism.
Can I just a question that relates to that? A picture has been painted of a group of people darting over borders with their passports, getting away with serious organised crime and terrorism. I wondered why somebody did not stop them if they were involved in serious organised crime or terrorism and bring them in, as it were. What about those people involved in serious organised crime and darting over borders who do not have a parent or grandparent that means they are potentially able to live in another country? Are the Government suggesting that the harm British citizens are being protected from is all committed by people who are coincidentally related to somebody which means that they can go and live somewhere else? Are there no home-grown, with nowhere else to go types doing any of this harm that threatens British citizens?
Of course there are home-grown people trying to do harm to our British citizens, but this is one of a number of powers to try to reduce high harm activity against the people of this country.
As a follow-on from the noble Baroness’s question, I have a question that I asked in my initial intervention. Why should they be treated differently? Say one person is involved in serious organised crime, such as major drug dealing, child trafficking or sex trafficking offences, and another person commits exactly that same offence, and say both of them were born in the United Kingdom, raised in the United Kingdom, have never lived anywhere else and have never taken citizenship of any other country. If they commit exactly the same crime, why should one be told to leave and the other not?
My Lords, what I think I have tried to explain today—and it will be obvious that are clearly differences between us—is that, where the highest harm individuals can rely on another citizenship, the Home Secretary has within his or her power the ability to remove that citizenship. Of course, the one citizenship that is protected is when someone is only a British citizen and of no other territory.
My Lords, this debate has been very moving in parts and extremely thoughtful, and I thank everybody across the House who contributed.
I, for one, am not unsympathetic to what the Government are trying to do. To tackle my noble friend Lord Hunt full on, I think he said that if Parliament does not accept Clause 9 then the Committee, or Parliament, will try to stop the Government from doing it. From what I have heard from the debate today, I think that is precisely the mood of the Committee and the conclusion that we have reached.
There are a number of alternative amendments. The noble Lord, Lord Blunkett, and the noble Lord, Lord Moylan, have come to blows, if you like, as to the purport of Amendment 27. There are parts of the amendments tabled by the noble Lord, Lord Anderson, that I find attractive, in particular removing the whole of Clause 9.
Wider concerns have been expressed in the debate this afternoon. Practitioners have to meet this at the sharp end, hence the concerns of the Law Society of Scotland. Concerns have also been raised by the Joint Committee on Human Rights, as well as by the Constitution Committee of the House of Lords.
My noble friend Lord Hunt said that even if there is no right to be given notice of deprivation of citizenship, there is still a right of appeal. I quoted the comments of the Law Society of Scotland in my opening remarks. In paragraphs 19 and 20 of our own Constitution Committee report, this is addressed head on:
“if a person has not been given notice of the deprivation of citizenship it is difficult to see how he or she would be able to appeal the decision”,
because they simply do not know about it. In paragraph 20, it goes further. I referred to this earlier, so I apologise if I am repeating myself. It was not addressed in the summing up:
“If a person is to be deprived of citizenship without notice there ought to be additional safeguards.”
If my noble friend is agreeable—and I think she has a very good track record in this regard—I propose to come back with my Amendment 25. I should like this to be considered further. I am pleased that my noble friend addressed the concerns raised in my Amendment 26. She said that it is often for security reasons that the Government are not able to say. The benefit of Amendment 25, which does not go as far as the amendments in the name of the noble Lord, Lord Anderson, is that it would give the Government part of what they want but not all of it. I do not think we will reach an agreement in Committee this afternoon. I hope that my noble friend could perhaps convene a meeting of all of us who have these concerns, so that we could try to reach some common ground with her. I beg leave to withdraw the amendment.
Amendment 25 withdrawn.
Amendments 26 and 27 not moved.
Clause 9 agreed.
Amendments 28 and 29 not moved.
Clause 10: Citizenship: stateless minors
30: Clause 10, page 13, line 11, after “birth” insert “without any legal or administrative barriers”
Member’s explanatory statement
This would give effect to the recommendation of the Joint Committee on Human Rights to ensure that, in compliance with Article 1 of the 1961 UN Statelessness Convention, British citizenship is only withheld from a stateless child born in the UK where the nationality of a parent is available to the child immediately, without any legal or administrative hurdles.
My Lords, I again refer to my membership of the Joint Committee on Human Rights. We have produced detailed reports on many aspects of the Bill, including on this matter.
It is surely a basic right that nobody should be stateless. This is fundamental. Stateless people have fewer rights—they have virtually none—and they are vulnerable. I have tabled this amendment to avoid statelessness.
As things stand, stateless children born in the UK are covered by this provision in the Bill. Prior to the British Nationality Act 1981, all children born in the UK were British under jus soli. As I said earlier, I served in the Commons at the time—indeed, I was on the Public Bill Committee which dealt with this Bill for many long weeks—and we had a long discussion about jus soli, and I only hope that the position I took then is the same as the one I am taking now—in other words, in opposition to the provision. I think I can claim that I have been consistent over 40 years; I hope so, but if anyone wants to look it up in order to disprove it, I will listen to them.
Clause 10 has a new requirement that will make it more difficult for stateless children to acquire British citizenship. It puts another hurdle in the way of acquiring that citizenship. The onus will now be on children—or, if they are very young, the people responsible for them —to produce the evidence, unless the Home Secretary is satisfied that the child is unable to acquire another nationality. The provision will effectively mean that a child born in the UK, or their parents or carers on their behalf, will have to prove that they could not reasonably have acquired another nationality—so the onus is on the child, or the parents or carers, to prove that. That may be quite a difficult point to prove, and the onus is switched in allocating the burden of responsibility. That could be especially hard for children who do not have significant support or access to the relevant documents. For example, the children of refugees might find it very difficult to have the necessary documentation or to be able to produce the evidence, so it would put a significant additional burden on them.
It is an anomaly that when children become adults they can apply. It remains an oddity that a child can remain stateless for some years until they become an adult, when they can then apply. What is the advantage to anyone of having a child stateless for that period? It certainly cannot be in the best interests of the child, and that surely must be the bottom line. The United Nations Convention on the Rights of the Child always talks about what is in the best interests of the child; Article 7 says that a child should be registered as having a nationality immediately after birth. That is fairly clear. Furthermore, it says that a contracting state shall grant its nationality to a person born in its territory who would otherwise be stateless. With this clause, the Government are going against these provisions in the Convention on the Rights of the Child.
It is difficult to see how Clause 10 complies with the United Kingdom’s obligations under both the 1961 United Nations Convention on the Reduction of Statelessness and the Convention on the Rights of the Child. It is an unnecessary measure that makes things even more difficult. I can see no argument, not even the security arguments that the Minister advanced in the previous debate, for putting this hurdle in the way of children who might otherwise be stateless. I beg to move.
My Lords, I support my noble friend Lord Dubs and the proposal that Clause 10 should not stand part of the Bill. I put on record my thanks to the Joint Committee on Human Rights for the very helpful work that it has done on the Bill, with a whole raft of very useful reports. According to ILPA and the Bar Council, this clause contravenes the 1961 UN Convention on the Reduction of Statelessness, and that should give us pause for thought. Research by the European Network on Statelessness shows how some children in very vulnerable circumstances will be affected, as my noble friend said, and found that there can be good reasons for delays in registering a child’s nationality.
To my mind, the justification that the clause is needed because there has been a significant increase in the number of registrations of stateless children smacks of the culture of disbelief and suspicion criticised by Wendy Williams in the Windrush report. Surely it is to be celebrated that more children are exercising their rights—no thanks to the Home Office, which has been dilatory in making children and their parents aware of these rights and in removing the barriers to registering them. It is thanks to the hard work of organisations such as the Project for the Registration of Children as British Citizens that more children and parents have become aware of the right to registration. As I say, this is to be commended, not cracked down on as if it were some kind of crime.
As the JCHR observes, and Amendment 31 addresses —a point made also by my noble friend Lord Dubs—it is difficult to see how this clause is compatible with the UN Convention on the Rights of the Child. While the Home Hoffice human rights memorandum states that it has considered the best interests of the children affected, it is not clear from it how such a clause is in their best interests, so can the Minister spell out exactly how this clause meets the best interests of children affected?
My Lords, as a member of the Joint Committee on Human Rights, I agree with the noble Baroness that we have done good work on the Bill. On a more serious note, perhaps I may say how much we appreciate the chairmanship of the right honourable Harriet Harman MP, whose recent bereavement has saddened us so much.
I will speak to both Amendments 30 and 31. As has been said by other noble Lords, Clause 10 amends the British Nationality Act to introduce new requirements for the registration of a stateless child—a child born in the UK—and could make it even more difficult for them to acquire British nationality, to which there are already significant hurdles. I could not agree more with the noble Baroness, Lady Lister. Why should it be a problem that children are becoming stateless and ceasing to have the security of nationality?
Under Clause 10, the Home Secretary has to be satisfied that the child is unable to acquire another nationality. That puts that child in the position of having to prove that they could not reasonably have acquired another nationality. The policy rationale seems to be a suspicion that parents are wilfully causing their child’s statelessness—the culture of disbelief that the noble Baroness, Lady Lister, referred to. As colleagues and the JCHR say, it is difficult to see how the best interests of the child, as required by the 1961 UN Convention on the Reduction of Statelessness, are served by the new test in this provision. How is it in that child’s interests to be left stateless?
Indeed, asserts the JCHR, Clause 10
“risks punishing the child for a perceived failure”
on the part of their parent or carer, which is obviously through no fault of their own. However, the UN convention does not impose a requirement on the parent to exhaust all avenues to seek the citizenship of another state. So Clause 10 could move the UK away from the convention. I was interested that the noble Baroness, Lady Lister, quoted ILFA and the Bar Council as saying that they do indeed think that this is a contravention of the convention, and I can see why. Amendment 30 is an attempt to move the UK back towards the intention of the convention by saying that British citizenship could only be withheld
“where the nationality of a parent is available to the child immediately, without any legal or administrative hurdles.”
Amendment 31 aims to make the best interests of the child central to the decision-making.
Finally, in addition to the risk of alienation from our society of individual children, it cannot be in the interests of British society as a whole for young people born here to be excluded from sharing citizenship and thus rootedness in their community.
My Lords, I support the amendments and the proposal that Clause 10 should not stand part, and my noble friend Lady Bennett of Manor Castle has also signed them. We should be making it as easy as possible for children to obtain a nationality if they are already stateless. Quite honestly, who dreams up these cruel clauses at the Home Office? Do they not have a heart when they are writing these things? Do they not understand the impact that they can have on children through no fault of the child? The decision should be made purely in the best interests of the child, as provided by Amendment 31. I hope that the Government change course and make this as easy and straightforward as possible. People outside are looking in and are judging this to be cruel, unpleasant and perfectly horrendous.
My Lords, I am trying to imagine how it could ever be in the best interests of a child born and raised in this country not to be given the right to be a citizen of this country. In what possible circumstances could we decide that it would be in the best interests of someone born and raised in this country to be decreed, at the age of 13 or 14, a citizen of another state? That is the situation. You could almost forget the 1961 convention, human rights and so on; we are simply talking about the best interests of the child. You can then back it up with all the international stuff on top. I support these amendments.
My Lords, Clause 10 talks about, to quote the Explanatory Notes,
“cases where parents have chosen not to register their child’s birth, which would have acquired their own nationality for their child, which means that the child can register as a British citizen under the statelessness provisions.”
I seriously question how many parents have such a detailed understanding of nationality law that they choose not to register their child’s birth in order to register their child later under statelessness provisions to give them British citizenship. That is just not credible. How many cases can the Minister cite where parents have deliberately not registered the nationality of their child in order for that child to get British citizenship under the statelessness provisions?
This strikes me as a cynical attempt to tighten the law, in a similar way to that in which the Bill tightens the provisions around modern slavery, to give the impression of being tough—bordering on xenophobic —on immigration, when there really is not a problem. It should not be part of the Bill. The power in this clause given to the Secretary of State to deny British citizenship to a child, unless she is satisfied that the child cannot reasonably acquire the nationality of its parents, needs to be qualified at the very least.
Amendment 30 in the name of the noble Lord, Lord Dubs, would give effect to the recommendation of the Joint Committee on Human Rights
“to ensure that British citizenship is only withheld”
from a stateless child born in the UK
“where the nationality of a parent is available to the child immediately”,
without any legal or administrative hurdles. We will support this amendment if this clause stands part of the Bill.
These are decisions being taken by parents and the Secretary of State about an innocent child who has no influence over what is being decided about their future—decisions about something as fundamental as citizenship. For that reason alone, we strongly support Amendment 31: that the best interests of the stateless child born in the UK must be central to any decision whether to grant or refuse British citizenship.
This is what we have come to: seeking to deny stateless children born in the UK British citizenship. As I said on a previous group, British citizenship has benefits to society as well as to the individual concerned. This is not just about the best interests of the child, although it should be; it is about what is in the best interests of society. Keeping children stateless as they grow into adults surely increases their chance of being radicalised and becoming a threat to society. On the last group, the Minister kept talking about high-harm individuals. All the evidence points to one of the most important factors in radicalisation being people not feeling part of society or of this country. Keeping a child stateless surely will increase the danger of that person growing into a terrorist.
My Lords, my name has been added to the proposal to oppose Clause 10 standing part of the Bill, which was tabled by the noble Lord, Lord Paddick. As has been said, Clause 10 is intended to disentitle stateless children in the UK from their statutory right to British citizenship. It proposes amending and restricting a vital safeguard in British nationality law that prevents and reduces childhood statelessness. Under our international obligations, we have safeguards that mean that a child who was born in the UK and has always been stateless can acquire British citizenship after five years of residing here.
Through Clause 10, the Government now propose to restrict and amend that obligation. Clause 10 requires the Secretary of State to be satisfied that a child was unable to acquire another nationality before being permitted to register as a British citizen. That creates an additional and unjustified hurdle to stateless children’s registration as British citizens, which could be difficult for a child or those acting on their behalf to prove.
Rather than helping such children attain citizenship, the Government are intent on putting up more barriers and making it more difficult for children under 18 to be registered. They seem to want to try to deny citizenship, particularly citizenship of the place where the child was born and lives—in fact, the only place they know. No doubt the Government will explain what substantial wrong they consider this clause addresses and what hard evidence there is that that wrong is actually significant, as opposed to it being claimed as such.
Clause 10 can only be highly damaging to a child’s personal development and their feelings of security and belonging, with this exclusion and potential alienation being inflicted in their formative years. The noble Lord, Lord Paddick, referred to the serious implications that can have. There has been no assessment made by the Government of the impact this proposal will have on those children affected, which suggests that this issue does not trouble the Government. As my noble friend Lady Lister of Burtersett said, how can this be in the best interests of the child? This issue is addressed in Amendment 31, reflecting a JCHR recommendation.
In the Commons, we supported an amendment to Clause 10 which sought to ensure that the Government act in compliance with Article 1 of the 1961 UN Convention on the Reduction of Statelessness, the Government having failed to protect the existing safeguards, which are in line with international law, in this Bill. The amendment altered Clause 10, so that British citizenship was withheld from a stateless child born in the UK only when a parent’s nationality was available to the child immediately, without any legal or administrative hurdles. That is as per Amendment 30, moved by my noble friend Lord Dubs, which also reflects a JCHR recommendation.
I am probably being overoptimistic in hoping that there will be a positive government reply to this stand part debate. At the very least, if my fears are justified and we do not get a positive reply from our point of view, I hope that we will be told what the hard evidence is that Clause 10 actually addresses a significant wrong, rather than one being claimed as such.
My Lords, I start by thanking the noble Lord, Lord Dubs, for tabling Amendments 30 and 31 to Clause 10, which requires the Secretary of State to be satisfied that a child aged between five and 17 cannot reasonably acquire another nationality in order to be registered under the stateless child provisions. I also note the opposition to and concerns about this clause of the noble Lords, Lord Paddick and Lord Rosser, should they not be satisfied by my response. In an ideal world, we would not need to include this clause, but current trends mean that we feel we must.
That goes to the question that the noble Lords, Lord Paddick and Lord Rosser, asked about the figures. In 2017, in the case of R v Secretary of State for the Home Department, even though the applicant was eligible for the grant of British citizenship under paragraph 3 of Schedule 2 to the BNA 1981, and despite the fact that they could acquire the nationality of their parents, the judge recognised that his conclusion
“opens an obvious route to abuse”.
The figures bear that out. In 2010 there were five cases; in 2018 they peaked at 1,775. There is obvious evidence that this is happening. I rest my case there.
Clause 10 has been developed in response to concerns that a number of non-settled parents, many of whom did not have permission to be in the UK at the time of their child’s birth, have chosen not to register their child’s birth with their own authorities in order to qualify under the current child statelessness provisions. This in turn can impact on the parents’ immigration status.
Amendment 30 would add a new condition to Clause 10, so that a child is defined as being able to acquire a nationality from birth only if there were no legal or administrative barriers to them doing so. That would mean that the parents I have talked about could, in theory, benefit from the stateless child provisions by not registering their child’s birth. In answer to the point made by the noble Lord, Lord Paddick, it is very easy to register a child’s birth. The parents simply need to complete a form and provide supporting information about their identity, status and residence and the child’s birth. I do not think that is difficult.
I appreciate that the noble Lord’s use of the term “barriers” might have been intended to suggest something more significant and assure him that the clause already reflects our expectation that children who cannot reasonably acquire another nationality should not be excluded. The UNHCR’s document Guidelines on Statelessness no. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness recognises that the responsibility to grant nationality to children who would otherwise be stateless is not engaged where a child could acquire the nationality of a parent through registration or a simple procedure. The genuinely stateless child will not be affected. This is about those who can reasonably acquire another nationality. It is not about the Windrush generation—they are entitled to be British.
We do not think it is fair that parents can effectively secure a quicker route to British citizenship by choosing not to register their child’s birth. In doing so, they are depriving their child of a nationality, which is not only about identity and belonging, as I heard one noble Lord say, but can allow them to acquire a passport or identity document and the ability to travel overseas to see family, for example.
They are also taking advantage of a provision intended to protect those who are genuinely stateless. We want them still to be able to benefit, but we want to change the registration provisions so that parents cannot effectively choose statelessness for their children and then benefit from the provisions. We think it is appropriate that families should take reasonable steps to acquire a nationality for their child. We will set out in guidance the sort of steps that we think are reasonable, and applications will be considered on their individual basis.
Amendment 31 would mean that we could not regard a child as being able to acquire another nationality, and so decline their British citizenship application, if it would not be in the best interests of the child to gain that nationality. Noble Lords have pointed out the value they see in a child being able to secure and acquire a nationality, and it is difficult to see why parents might argue that it is not in their child’s best interests to share their status. We have already taken into account that some countries’ nationalities may be problematic for a child to acquire. The proposed clause reflects our expectation that a parent should not need to try to acquire a nationality for their child if it is not reasonable for them to do so.
Adding a statutory assessment of a child’s best interests in not holding a particular nationality would not be helpful. The Home Secretary is already required by Section 55 of the Borders, Citizenship and Immigration Act 2009 to take into account the need to safeguard and promote the welfare of children. Including this requirement here could cast doubt on the application of Section 55 in other areas where the duty is not expressly required.
We want to use Clause 10 to amend the existing registration provision for stateless children by adding a requirement that the Secretary of State must be satisfied that the child cannot reasonably acquire another nationality. We hope that this will encourage parents to acquire a nationality for their child where they can. As I have said, it will not affect genuinely stateless children or those who have a nationality but whose parents cannot approach their own country’s authorities for a passport or documentation.
In answer to the right reverend Prelate the Bishop of Durham, for children born in the UK who do not become British and do not have any other nationality, there are specific provisions to register as a British citizen. A child can be registered as a British citizen if they were born in the UK, have always been stateless, have lived in the UK for five years and make an application before their 22nd birthday. This means that, if a child is stateless and has had no other citizenship or nationality from birth, they can effectively be registered on reaching the age of five, rather than after the age of 10, like other children born in the UK.
On international obligations, the noble Baronesses, Lady Lister and Lady Ludford, asked whether we are breaching the 1954 and 1961 conventions and the UN Convention on the Rights of the Child. We propose having two separate registration routes: one that applies to those aged between 18 and 22, to which no additional requirements apply; and a new registration route that applies only to children below the age of 18 and which introduces a new requirement that the Secretary of State be satisfied that the child is unable to acquire another nationality. We are satisfied that this complies with our obligations under the statelessness conventions, and we have taken into account the approach recommended by the UNHCR’s guideline No. 4 in drafting this provision.
I should add that citizenship is not the only option. There are also provisions in the Immigration Rules for a stateless person to apply for permission to stay in the UK and for which they do not have to wait five years. Equally, their parents are able to apply for immigration leave more generally if they believe that they have a valid basis to stay here.
I hope that, with those explanations, noble Lords will be happy to withdraw and not press their amendments to Clause 10.
My Lords, can the Minister clarify something? She gave us some figures; I did not have a chance to write to them down. She talked about the figures peaking at, I think, somewhere around 1,700 cases. Is that the number of stateless children born in the UK who are granted British citizenship, or are they cases where parents deliberately chose not to register their child’s birth in order to take advantage of the system?
I assume that it is the latter, but I will write to the noble Lord with the details of the figures I have here. In particular, I will give him more detail about the countries from which these cases derive.
I want to follow up, because the Minister has answered the question I was going to ask. She mentioned that the 1,700 figure—I cannot remember what year it was for—was evidence of abuse, and as she just replied to my noble friend, she is assuming that the parents in those cases could not apply. It seems to me that there is no evidence of abuse. I am thinking of the strengthened safeguards in Amendments 30 and 31, especially Amendment 31. The Home Secretary must be satisfied that “in all the circumstances” it is reasonable, et cetera. The Minister referred to circumstances where parents cannot access the authorities of the relevant state. One can think of dozens of countries around the world in conflict, civil war or whatever chaos. Adding the words
“without any legal or administrative barriers”
would go with the flow of the Home Secretary having to be satisfied that it is reasonable to refuse, and I really cannot see why the Home Office cannot accept Amendment 30, even if it is claiming that Amendment 31 is unnecessary because it already cares about the best interests of the child.
I shall write to noble Lords about this in more detail, because it is quite detailed, and explain where the figures have derived from. I was actually quoting the judge in his conclusion that an “obvious route to abuse” would be opened. I shall send the figures to the noble Baroness. On case sampling, many of the cases have a poor immigration history, with 79% of the parents having no leave at the time of the birth and only 16% having such leave, but I will outline it to noble Lords in greater detail and they can draw their own conclusion.
My Lords, I have tried to follow the Minister’s reply, and I am bound to say that I too am a little confused about these figures. I think she has just not yet made her case. Please could she give us more information before we get to Report? If not, we will not be persuaded by this. I may not have been quick enough to pick up all the nuances—I do not think any of us were, really; it was quite difficult. I look forward to getting more information from her; we shall have to listen to what she has to say. I am grateful to noble Lords who contributed to the debate, and I beg leave to withdraw the amendment.
Amendment 30 withdrawn.
Amendment 31 not moved.
Clause 10 agreed.
Amendments 32 and 33 not moved.
House adjourned at 6.53 pm.