My Lords, Amendment 76A in my name is, like Amendments 75 to 78 to which I have added my name, designed to mitigate the
worst effects of Clause 60. However, like the noble Lord, Lord Pannick, and my noble friend Lady Kennedy, my preference is for Clause 60 not to stand part of the Bill, and we have heard very powerful reasons for why it should not do so.
Amendments 75, 76, 77 and 78 were recommended by the Joint Committee on Human Rights; first, to ensure that Clause 60 is compatible with international law obligations. This has been questioned by the JCHR, drawing on the opinion of Professor Goodwin-Gill, which has already been referred to, that the deprivation of citizenship should be,
“a necessary and proportionate response to the conduct in question”.
The JCHR noted that, in their letter to the committee, the Government said that they did not want,
“to rule out the possibility that deprivation of citizenship leaving a person stateless is necessary in the interests of the economic well-being of the country”.
The JCHR said:
“It is hard to imagine the circumstances in which such a serious measure could ever be necessary and proportionate for such a purpose”.
Will the Minister help us out and give an example of the kind of situation envisaged that would not anyway be covered by terrorism? Economic well-being does not seem to be a reason for taking away someone’s citizenship and making them stateless.
The JCHR said that the best interests of the child should be taken into account and, once again, issued a plea for this to be written into the legislation to ensure that they are,
“treated as a primary consideration”.
The committee also said that the legislation should not be retrospective, which is,
“an exceptional step which requires weighty justification”.
We were not persuaded that such justification exists. I note from a Written Answer on 10 February:
“There will be no time limit, but the conduct being considered must have taken place after the individual became a British citizen”.—[Official Report, 10/2/14; col. WA 101.]
Amendment 76A complements the JCHR’s amendments and has two purposes. First, it would ensure that the power in Clause 60 could not be used against someone when they are outside the country. This would help ensure compliance with obligations under international law and, as has already been noted, the JCHR, drawing on the opinion of Professor Goodwin-Gill, has questioned whether the clause is compliant. The committee said:
“We would be very concerned if the Government’s main or sole purpose in taking this power is to exercise it in relation to naturalised British citizens while they are abroad, as it appears that this carries a very great risk of breaching the UK’s international obligations to the State who admitted the British citizen to its territory”.
That point has already been made but it bears repetition. Will the Minister comment on this important legal point?
The JCHR also expressed surprise at,
“the Government’s refusal to inform Parliament of the number of cases in which the power to deprive of citizenship has been exercised while abroad”,
and made it clear that Parliament,
“is entitled to this information in order to assist it to reach a view as to how the new power is likely to be exercised in practice”.
I pay tribute to the tireless briefing that ILPA has provided to the committee throughout the passage of the Bill, although I fear we have not done it full justice. A freedom of information request submitted by ILPA elicited the information that of five individuals stripped of British nationality in 2010, all were outside the UK. This has to raise alarm bells. Will the Minister give Parliament—and the committee—this information now?
At Second Reading, the Minister assured noble Lords:
“There is a safeguard of a full right of appeal”.—[Official Report, 10/2/14; col. 417.]
But how is someone who is forbidden to return to the country supposed to exercise that right of appeal? It will not be very easy. In practice that is probably a pretty empty assurance. What will be achieved apart from sullying the UK’s international reputation, as we have already been warned? Liberty suggests that the clause is based on a security fallacy, arguing that stripping someone of nationality abroad will in no way contribute to security at home. Those who threaten our security do not respect national borders; my noble friend Lady Smith has made a similar point.
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The second part of the amendment would ensure that Clause 60 could be used only against individuals who could acquire another nationality within a period of six months. In other words, it aims to prevent statelessness, the seriousness of which we must not underestimate. At Second Reading, the Minister said:
“The evil of statelessness is well understood and that is why… so much work was done to reduce it”.—[Official Report, 10/2/14; col. 527.]
As has been said, the UK took the lead in that work but is now siding with oppressive and rogue states that perpetuate the evil of statelessness.
In the words of the Open Society Justice Initiative, which has particular expertise in this area, statelessness is a condition of insecurity and indignity. The UNHCR says:
“To be stateless is to be without nationality or citizenship. There is no legal bond of nationality between the state and the individual. Stateless people face numerous difficulties in their daily lives: they can lack access to health care, education, property rights and the ability to move freely”.
Essentially, in Hannah Arendt’s memorable words, they lack the right to have rights. Liberty describes it as a,
“brutal punishment with unique practical and legal consequences”,
and that stripping a person of his or her nationhood and forcing him or her into,
“the obvious cracks in protection created by a state based system of law and international relations is a barbaric and unprincipled response to concerns about our security”.
When the clause was first introduced in the Commons, Parliament was assured by the Home Secretary that the whole point was that the process would apply only in cases where the individual could access citizenship of another country, and it would be open to them to apply for such citizenship. To the JCHR’s surprise—I have lost count of how many times we had to express our surprise in our report—it has since emerged that the scope is, of course, much wider. As the Minister
made clear at Second Reading in this place, an individual can be deprived of their citizenship regardless of whether that leaves them stateless.
The amendment would simply make the clause consistent with the assurance given by the Home Secretary to the House of Commons; ILPA warns that that in itself is not sufficient protection because, according to UNHCR guidelines, nationality cannot be a predictive exercise, but at least would take us some of the way. Again, the legality of the clause has been questioned by the Open Society Justice Initiative and Professor Goodwin-Gill, who explains the point as follows:
“It could be argued … that once having ‘legislated away’ the right to make a citizen stateless, as in 2002 and again in 2006, the United Kingdom no longer falls within the category of States which, in the sense of Article 8(3) of the 1961 Convention, ‘retain the right’ to deprive a person of his or her nationality, even if it results in statelessness”.
As a non-lawyer, it seems to me that this revolves around the interpretation of the word “retain”. Will the Minister confirm whether the Home Office’s lawyers have seen this opinion and what their view of it is? If he cannot tell us that now, will he write to noble Lords afterwards? This point seems to be rather important. Whatever the lawyers’ response, does he accept that this clause is going to be challenged in the courts very quickly?
In passing legislation, we have to consider the consequences. I have spoken about the consequences for someone out of the country. What about a person who is in the country when deprived of citizenship and who is unable to apply for citizenship of another country? My noble friend Lady Smith has already asked some questions about this. The Government have conceded that it may not be possible to deport them, so they will live a kind of shadow existence in our midst, no doubt bitter and resentful. As Liberty asks, on what basis do the Government believe that this will improve the country’s security?
In those cases where it is possible to deport the person, I can do no better than quote the late Lord Kingsland, the Conservative shadow Lord Chancellor, who in 2002 said:
“If we identify someone as a person proposing to commit a serious terrorist offence, for example, surely the obligation is on us to deal with that person. If we simply deport him, we shall be handing on—in my submission, irresponsibly—this terrorist problem to another state which may not have the same capability of dealing with it as we do. It cannot be a proper response to the terrorist threat to refuse to deal with it ourselves. … That would be irresponsible of us”.—[Official Report, 9/10/02; cols. 277-78.]
Can the Minister explain why Conservative thinking has changed since those wise words were spoken? Why do the Government so lack confidence in the criminal justice system and its own criminal justice legislation to deal with this kind of threat? My noble friend Lady Kennedy has already talked about this.
I remind the Minister what his noble friend Lord Bourne of Aberystwyth said at Second Reading:
“if the deprivation of nationality leaves them stateless, then I have serious concerns both about fairness and efficacy. It seems neither fair nor effective”.
He went on:
“Britain has a proud history of fairness and I believe my country to be better than this proposal”.—[Official Report, 10/2/14; col. 490.]
Again, those are wise words. I do not think that the safeguards to which the Minister referred in his response to the noble Lord, Lord Bourne, did anything to address his concerns on this fundamental point of the consequences of deliberately making a person stateless.
Amendment 76A will go some way to addressing questions raised about lawfulness and the implications of Clause 60 for the UK’s international reputation. The Open Society Justice Initiative has warned that,
“The UK Parliament’s approval of Clause 60 would send a message to the world that the UK condones the creation of statelessness”,
thereby giving a green light to other states—states of which I am sure the Government do not approve. The fact sheet issued by the Home Office states:
“This is more a matter of principle than an issue of numbers”.
I agree. For that reason, I believe that Clause 60 should not stand part of the Bill. If it does, it is imperative that the clause is amended along the lines of the various amendments that we are debating this evening.