My Lords, I hope that the Committee and the Deputy Chairman of Committees will understand that my sitting down today is not a sign of any disrespect to any Member or to the Committee. I thank the Minister for his introduction to this instrument. I do not think he will be surprised to know that I am not thanking him for the instrument itself, and very much not for the Nationality and Borders Act.
Those of us who find difficulty with proceedings in any number of areas, particularly when they are closed, are generally assured by the Government that we should not worry because there is judicial oversight. I cannot recall whether this was so in the case of Section 10 of the Nationality and Borders Act, but the instrument points up the hollowness of such an argument. As the Minister explained, Section 10 provides that the Secretary of State does not have to give notice of deprivation of citizenship in certain circumstances, and, if she
“reasonably considers it necessary, in the interests of”
certain matters,
“that notice … should not be given.”
That is in new Section 40(5A)(b) of the 1981 Act, which includes
“the relationship between the United Kingdom and another country”.
I understand the Minister to have included that in his list of high harms. It is quite easy to think of examples of what might be necessary so as not to annoy another state, which I think would come within the relationship between the UK and another state. Can the Minister tell the Committee whether he expects this power to be used very narrowly, and confirm that proportionality will apply?
We are reliant on the commission to assess the reasonableness of the view of the Secretary of State but even the commission does not have a free hand. Under Section 25E in the new Part 4A,
“The Commission must determine the application on paper without a hearing”.
My second question is: why is it “must” and not “may”? If we are to have any confidence in the process as a whole, should we not trust the commission to decide for itself whether determination on paper is appropriate? Can the Minister explain this? Can he explain to the Committee what will happen if the commission, having seen the paper application, has questions of the Secretary of State and wants to hear from counsel on her behalf?
I admit that I have no experience in this, other than debates in your Lordships’ House over the years and briefings from professionals and others involved in the process, but it seems that it is all too easy for such an application to become completely formulaic. Once there is a formula which is considered to pass the not “obviously flawed” threshold or test, that will go to the commission without, apparently, its being able to say, “Yes, but”. The “obviously flawed” test is in the new Schedule 4A. Is it beyond the bounds of possibility that the Home Secretary herself could want a hearing? We will never know because there is no one to ask. We are not even getting that close to the territory of closed hearings and special advocates here.
I find it difficult to understand what role this appeal court would be left with. We will know next to nothing—probably nothing—about the use of these powers. Paragraph 14 of the Explanatory Memorandum tells us:
“As the Home Secretary decides each case personally and due to the very low number of cases expected to be affected by these provisions, no specific monitoring or review of these measures will be undertaken.”
In this situation, reporting is almost a synonym for monitoring. Can the Minister at least give an assurance that there will be reporting? I cannot see that it could be very difficult. What harm would be caused? I do not think that I need to spell out why a report in the public domain is desirable and essential. So often we are told, not only by Home Office Ministers but from the Dispatch Box, that there is no need for a review of a provision in primary legislation, because there is an automatic, periodic review of all legislation that the Government put through. However, no review of the measures means no review of Section 10. In our view, there should be reporting, not just of numbers but, for instance, of whether men or women are affected by deprivation orders, and, importantly, whether each individual has, or is considered to have, dual nationality. Indeed, can the Minister confirm—I appreciate that it is a bit beyond this instrument—whether the powers will be used only in the cases of individuals who are citizens of another state? Does the appetite for secrecy really mean that the state is protecting us?
I have been doing my best to avoid reference to an ongoing case, and I do not seek to draw the Minister into it—I know that he will not be drawn in—but it is justifiable to ask about the cohort of women known to be in a camp in Syria, who are held there because of their IS connections. Can one really say of them that their whereabouts are unknown? They are not going anywhere; they are known to be in the camp, although they cannot contact lawyers. For reasons the Grand Committee will understand, given his widely reported
comments last month regarding a case before SIAC, have the Government consulted the current Independent Reviewer of Terrorism Legislation? This is about legislation; Jonathan Hall is independent.
I have referred to judicial oversight. What I take from the instrument is that oversight of the process can be no more than minimal, and therefore oversight of the process is eliminated.