My Lords, I, too, have a fundamental problem with this clause. It has been suggested that it was added late to the Bill and designed to overcome the Government’s
defeat in Al-Jedda, which was decided by the Supreme Court just last October, but in fact Clause 60 goes substantially further than merely reversing that decision.
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The argument in Al-Jedda was as to the scope of Section 40(2) of the 1981 Act as that had been substituted in 2006. Section 40(4), as substituted, read:
“The Secretary of State may not make an order under subsection (2)”—
allowing him to deprive someone of citizenship if satisfied that the deprivation is conducive to the public good—
“if he is satisfied that the order would make a person stateless”.
Having been granted British nationality, Mr Al-Jedda had lost his Iraqi citizenship, but it was said by the Secretary of State that he was entitled to regain that Iraqi citizenship on application as soon as he lost his UK citizenship. The court assumed that that was so, but it decided that the clear wording of Section 40(4) still prevented the Government from making him stateless, even in the short period until he chose to apply to regain Iraqi citizenship. What the Government needed—and could by legislation have achieved, pointed out Lord Wilson, giving the judgment of the Supreme Court in the case—was to have added to Section 40(4) the words, “in circumstances in which he has no right immediately to acquire the nationality of another state”. Had those words been added, he would have been stateless merely for as long as it took him to apply to regain some other citizenship.
I am rather more sceptical than some others among today’s speakers as to the strength of the advice of Professor Goodwin-Gill as to whether the clause would actually involve the United Kingdom in a breach of international law. The very recent report of the Select Committee on the Constitution on the Bill, published only on 7 March, suggests that there would probably be no such breach, but I am in the fullest measure in agreement with others who have spoken that the proposal would in fact involve the United Kingdom taking a serious retrograde step, deeply damaging to our international reputation. It is a shocking example to other states, which ordinarily are readier than we are to make such a radical departure from the consensus as to proper international human rights conduct. Lord Wilson, in giving the Al-Jedda judgment, referred in paragraph 12 to “The evil of statelessness” and spoke of the “terrible practical consequences” that flow from it. Some of those practical consequences have been outlined by other contributors to today’s debate, and some are suggested by the Select Committee on the Constitution in its brief report.
Even assuming, contrary to the suggestions of many, that such a clause could ever operate to enhance the security of this nation, there is, I respectfully suggest, altogether more to lose than to gain by the clause. If the Government want to follow Lord Wilson’s suggestion of simply repairing what may have thought to have been an omission from the earlier legislation, let them do so. Essentially, that would be the result of accepting Amendment 76A. Let them, if they wish, go that far, but certainly let them not to go to the full width of the proposed new clause.