My Lords, this has been a powerful debate. I am speaking to the amendment that I have been pleased to sign, along with the noble Lords, Lord Pannick and Lord Macdonald, and the noble and learned Lord, Lord Brown. There is a sharp contrast with the time which was allowed to debate this issue in the other place.
I am grateful to the Minister for his comments at the beginning of the debate. I do not want to repeat the points which have been made, particularly those made more eloquently than I could do by those with legal expertise. I want to emphasise a number of points, particularly around the issue of scrutiny, which was referred to by the noble Lord, Lord Lester. This new government clause was introduced—with other amendments—in the other place just 24 hours prior to
Report, all to be considered in a five-hour debate. It therefore did not receive the scrutiny that such a substantial and far-reaching clause needs and deserves. In the other place the Home Secretary admitted that,
“Members have not had as long to consider it as they would perhaps have wished”.
The Home Secretary claimed to have been “incredibly generous” in repeatedly giving way to respond to MPs’ concerns and questions, although I do not think that that was a particularly wise turn of phrase. As was made clear by my colleague in the other place, David Hanson, we were seeking to ensure that the consequences of such a significant clause had been properly thought through. The response from the Home Secretary was that the Government,
“recognise that there are consequences, and they have been considered”.—[Official Report, Commons, 30 Jan 2014; col. 1047-48.]
However, when we debated this in Committee, the responses from the Minister did not provide your Lordships’ House with the assurance that all the consequences had been considered. The noble Lord, Lord Sherbourne of Didsbury, partly quoted my comments in Committee, and I will reiterate the same point that everyone in your Lordships’ House wants to do everything possible to protect UK citizens from potential terrorist activity, both at home and abroad.
We also have to recognise that we have international obligations in this regard, as terrorism is a global threat. We all know that Clause 64 is a response to the Al-Jedda judgment by the Supreme Court, as was referred to by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. It was clarified that the Secretary of State could not withdraw citizenship from an individual if it would leave them stateless. Clause 64 seeks to remove that barrier, and would allow the state to make an individual stateless if they are naturalised British citizens and the Government consider that they are involved with actions prejudicial to the interests of the UK. That would mean that either the former citizen remains locked in the UK, unable to leave, work or receive any support, but the Government still have obligations to that individual, or that they would be left stateless in another country and obviously not able to return.
When bringing forward such an exceptional power as this, the Government have a duty to consider the wider implications and the impact it will have. We understand that actions to tackle a threat to national or international security do at times curtail the freedom of an individual, but when such a measure is proposed it must be fully and properly considered. The process, the impact and the implications must all be fully thought through and understood.
The noble Lord, Lord Taylor, recognised the seriousness of this issue when we debated it in Committee. He said that it was right that we should have a thorough debate on the issue, after it was introduced at such a late stage and almost slipped in at the last minute in the Commons. However, the noble Lord has rejected the proposal in our amendment before the House today for scrutiny by a Joint Committee of both Houses, a dedicated committee to examine this in detail. He said that it should be debated during the passage of a Bill in your Lordships’ House.
For a debate to be effective, there must be answers to the questions raised. We are not a debating society. As the Minister has in effect acknowledged, our role in Parliament is to scrutinise and, if necessary, revise legislation. The noble Lord, Lord Lester, said in his comments that it was a complex issue. In Committee I and other noble Lords asked a number of questions in an attempt to understand how this clause would operate in practice and the impact on the individual, on public safety and on national and international security. To be effective in that scrutiny—the very scrutiny to which the noble Lord referred when introducing his amendment and rejecting our amendment—the Government must address the points we made, and answer the questions. On this very far-reaching clause, they have failed to do so.
In Committee we sought to understand the process and the full implications. What would the process be for making an order under the clause, and what would “seriously prejudicial” mean? What criteria would be considered by the Secretary of State, and what would be the process by which she would make her decision? I raised the specific case of Y1 with the Minister. In that case it appeared that the Home Secretary did not agree with the professional advice of the security services, following discussions with Cabinet members. I was not suggesting that that was necessarily wrong, but I wanted to understand if decisions could be made on political grounds. I did not receive much clarity on these points, but the Minister replied that this would affect only a small number of individuals. I have never considered that a few people being affected by a power makes it less important to consider the implications.
The Bureau of Investigative Journalism has identified 15 cases, to which the noble Baroness, Lady Hamwee, also referred, in which the person was overseas at the time. It has also shown that the use of that power gradually increased under this Government, from roughly one case each year in 2010 to eight in 2013. However, when asked for more precise information—for example, on how many of the individuals whose citizenship was removed were in the UK and how many were outside the UK at the time the decision was made—the Minister refused to give us more detail on the grounds of national security. I am not sure that I fully understand why giving the numbers involved, rather than specific information, is a danger to national security.
The Government have clarified that this new power could be used against people whether or not they are in the country, and whether or not they can acquire another nationality. They have stated that they would expect those who can acquire another nationality to seek to do so, but have no answers on what happens if that fails. There remains a lack of clarity on what happens to people who have their citizenship removed while they are in the country. This is an important point, as this clause is designed to deal with those whose activities are of concern, and indeed those who may be a danger.
Mr James Brokenshire, the new Immigration Minister, said that in the event of a person remaining in the UK they could be granted limited leave, “possibly” with conditions, and the UK would have certain legal international obligations under the UN convention.
He expanded on that in a letter to the Constitution Committee, in which he wrote:
“For those living in the UK, we may grant another form of immigration leave, depending on the person’s circumstances … Crucially this will not attract all the privileges associated with being a British citizen; they would not be entitled to hold a British passport, to vote or to have full access to public services”.
The Minister confirmed this in writing to us after the debate. He also added that, in certain circumstances when the person cannot return to their country of origin, “it may be necessary” to provide them with exceptional leave to remain of some kind or another. Does this mean therefore that people would be trapped here, and we would not be able to deport them but would still have obligations towards them? How does that help to ensure that national security is protected?
What happens if someone is in another state when the decision is taken? What happens if they cannot be contacted? The Minister said that they would have the full right of appeal, but they cannot have this if they cannot be contacted. How can someone be notified in such circumstances, or avail themselves of any review of the decision? What about children who may be left behind? What will be the obligations of the state these children are in when their parent is made stateless? What will be the obligations of the state in which the person is made stateless?
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As this power will apply only to naturalised citizens, not to British-born citizens, does it not create two different classes of citizenship? The fight against terrorism is international and global, so what are the implications for national and international security in allowing terror suspects to be left loose and undocumented in whatever country they happen to be in when their citizenship is revoked? When citizenship has been withdrawn from citizens who are overseas, will the country that admitted them in good faith on a British passport be consulted or advised at any stage, or even after the withdrawal of citizenship?
The noble Lord, Lord Pannick, and the noble Baroness, Lady Lister, referred to the advice of Professor Guy Goodwin-Gill from Oxford, who is an expert on this area. His advice, which is worth repeating, is that any state that admitted an individual on the basis of his or her British passport would be fully entitled to ignore any purported deprivation of citizenship and as a matter of right return that person to the UK. The Minister’s letter to me dismissing that point admitted that there is a very limited obligation to readmit former British nationals who have become stateless after entering a foreign state, but he said that he considered it would rarely be applicable and would have very limited practical impact. Why, and in what circumstances; and does this open a decision to even greater legal challenge? The answers are neither clear nor reassuring. Aside from any legal obligation, how will such a situation impact on the UK’s relationship with that state?
We asked in Committee what discussions the Government have had with other countries about this clause. The noble Lord, Lord Taylor, did not respond to us then, but he wrote afterwards to say that the Government had not had any discussions with other
countries and they did not think that they needed to. That is exactly the kind of response that means that we need a Joint Committee to examine this properly and to address the issues to which the Government have no answers.
We did not ask questions just to have a debate in your Lordships’ House; we asked because we thought there would be answers, and we believe that we need those answers. The Government said that they had considered the implications, but they have apparently not considered the implications that we asked about. I share the criticisms of the Government’s amendment made by the noble Lord, Lord Pannick. However, in principle, we are certainly not against post-legislative scrutiny—but in addition to, not instead of, effective parliamentary scrutiny.
Our amendment is reasonable. It does not reject the Government’s proposition outright, but it demands scrutiny prior to legislation, not after legislation. If there is evidence, let a committee of both Houses examine it and come to a conclusion. If there is evidence that this would make UK citizens safer, we need the right to scrutinise that information. There are too many unanswered questions to proceed with this clause.