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In the Izuazu case, Mr Justice Blake pointedly stated:

“'Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these decisions are binding...and will be followed”.

So we have tried once and that did not work; and it was clear that it would not work because of the way in which the Human Rights Act operates. I am not necessarily criticising the Act; I am merely making a point of fact.

Part 2 of the Bill seeks to reintroduce what is effectively the same balancing exercise as that in the immigration rules in order to give the factors in favour of deportation statutory force. Of course that is a step in the right direction, but the UK courts are required only to “have regard” to the factors that are listed, and that leaves the courts wide discretion. Sections 3 and 4 of the Human Rights Act clearly require such discretion to be exercised in a way that complies with existing human rights case law in this country. In short, there is a real risk that nothing would change.

Let me deal briefly with the Home Secretary’s suggestion that my new clause would risk our being involved in a huge amount of litigation. There is always a risk of litigation when the law is changed, but because the new clause is much shorter, clearer and more succinct than the wide, sophisticated, complex balancing exercise in the Bill, it is much less likely to attract the kind of satellite litigation to which the Home Secretary alluded. I therefore think that the Bill as it stands would make the position worse than it would be if my new clause were accepted.

Michael Ellis: I admire my hon. Friend and respect his position, but my fundamental concern about his new clause is that it is being described by lawyers—from both the Labour party and the Government, it seems—as a measure that is incompatible with the legislation, will not work, and will actually slow the process down. I want us to deport as many foreign criminals as possible, but will not the new clause make that more difficult?

Mr Raab: I know that my hon. Friend takes a close interest in these matters, and I shall try to address his point very squarely. I urge him to intervene again if he feels that I have not done so satisfactorily, in which case I shall spell out my argument more clearly.

My new clause differs from the clauses in part 2 in that it is mandatory. Serious offenders cannot pull out and wield article 8 as a joker to trump deportation. Unless there is a tangible threat to life or limb, those convicted killers, rapists, drug dealers and other serious criminals should be sent home: they should not remain on the streets of Britain.

I spent a long time crafting and consulting on my new clause. It allows a very narrow exception to the wider automaticity of deportation when that is in the overwhelming humanitarian interests of the children involved, but the discretion is to be exercised by the Home Secretary rather than the courts. The new clause uses a Home Office mechanism, or model, to protect that discretion from human rights challenges by expressly stipulating that the only challenge can be by way of judicial review.

Mark Pritchard: As my hon. Friend knows, I am one of the co-signatories of the new clause. However, the Home Secretary legitimately raised the possibility of

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unintended consequences should the new clause remove the discretion and flexibility that currently exists in relation to the discretion to deport someone who has been in prison for less than 12 months.

Mr Raab: My hon. Friend has made a perfectly reasonable point, but the new clause is tailored to serious criminals, which is all the more reason for it to be considered reasonable and proportionate. Of course, if the Government wish to insert a provision covering persistent petty offenders—which would be far more likely to attract challenges under article 8, because in the case of less serious offences deportation is more likely to be deemed disproportionate—they will be able to do so. However—it is odd to be attacked for not being tough enough—I think that the main focus should be on those who are jailed for a year or more. That is the model in the UK Borders Act 2007.

Sarah Teather: May I take up a point that I made to the Home Secretary earlier? As the hon. Gentleman knows, people are often trafficked, but the fact that they have been trafficked is not recognised immediately. Such people may have committed crimes while being trafficked, and may have served sentences of more than a year. It seems that, as a consequence of the restrictive nature of the new clause, we would be willing to send those people back to enslavement following the removal of article 4.

Mr Raab: That is an important point, but I think that I can give the hon. Lady some reassurance. If I understood her correctly, she was suggesting that because article 4 would be removed as an excuse for trumping deportation, we could send people home to be subject to slavery or something akin to it. That would automatically be caught by article 3, which covers “inhumane or degrading treatment”. There has never, to my knowledge, been a case in either the Strasbourg or the United Kingdom courts in which deportation has been trumped on the basis of article 4. It would already be covered under article 3, which is very well-trodden ground. I therefore think that her entirely legitimate concern has been catered for, but if she wishes to intervene again, I will give way to her.

Sarah Teather: What about other matters relating to the convention, such as the right to practise one’s religion and the right to a private life in relation to one’s sexuality? Is there not a possibility that people would be sent back to a country where they would be persecuted?

Mr Raab: From the sound of it, I have reassured the hon. Lady on the first point, which is good news. On the second point, a deportation order has never been trumped on those other grounds. The only grounds on which that has happened are article 2 on the right to life, article 3 on the right not to be tortured and article 8, which now makes up the lion’s share. I therefore do not think that that problem would arise. She talked about persecution. Let us be clear that any persecution that threatens life or limb is already caught by the exceptions under articles 2 and 3. I have deliberately preserved those because the hon. Members from across the House who support the new clause and I support the absolute

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prohibition on torture and inhumane or degrading treatment. If she is really concerned about this focused issue, those exceptions will deal with all those cases.

Mr Jack Straw (Blackburn) (Lab): Is there not a prior point that if someone has a genuine, well-founded fear of persecution by the state to which they might return, they have a near absolute right to claim refugee status in this country under the 1951 convention?

Mr Raab: The right hon. Gentleman is absolutely right. We probably would not even get on to article 2 or 3 in such cases. That situation is preserved under my new clause. I thank him for that important intervention.

Dr Huppert: Will the hon. Gentleman give way?

Mr Raab: I will make a little progress, but I will certainly come back to the hon. Gentleman.

The key difference between my proposals and part 2 of the Bill is that my proposals would deal with the problem. They do not require us to scrap the Human Rights Act or pull out of Europe. To the great chagrin of some of my colleagues, my proposals do not dip their toe into those totemic, polemical matters. They would not be struck down by UK judges, because they would be unequivocal primary legislation with overriding force. They are expressly within the terms of the Human Rights Act. That is spelled out in the memo to which the shadow Minister referred, if he reads it carefully.

We must be clear that incompatibility and illegality are two different things. It is clear that the UK courts would enforce the new clause that I am putting before the House. It is also clear from the most recent Home Office advice that I have received, to which hon. Members have also referred, that the new clause would not attract a rule 39 injunction from Strasbourg. That is because there would be no irreversible harm. It is extremely rare that Strasbourg would even consider a rule 39 injunction in such a case. The original memo that the shadow Minister cited referred to this matter, but the most recent memo from the Home Office team that has been sent to me, which is from November, is very clear:

“we do not expect interim measures under Rule 39 to be issued routinely, if at all.”

Of course, it is likely that if my new clause attracted a rule 39 injunction, the clauses in part 2 would be equally susceptible to such a challenge. That is the key point: the official advice from the Home Office is that such a challenge is very unlikely.

Richard Fuller: Will my hon. Friend give way?

Mr Raab: I will just expand on this point. I have quoted the advice that I have received. If anyone thinks that the new clause has been tabled with the aim of flouting UK law or engaging in illegality, as opposed to doing something that might be incompatible with the wider, opaque obligations of the ECHR, they misunderstand the point. It is wrong to say that that is what the Home Office’s advice states, because I deliberately sought its advice.

Even if we face a longer-term claim to Strasbourg that is not based on injunctive relief, the new clause remains faithful to the convention. We must not forget that for a second. Paragraph 2 of article 8 on the right

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to family life provides a list of grounds for curtailing the right to family life, including law enforcement, crime prevention, public protection and protecting the rights of others, which is what the colleagues from both sides of the House who support the new clause care so deeply about.

Chris Bryant: I understood the hon. Gentleman to mean that he had sought the same legal advice as the Home Secretary. The Home Secretary said clearly that the Attorney-General had said that new clause 15 was incompatible with the European convention on human rights, but the hon. Gentleman says that he has seen the same advice and that the new clause is compatible with the convention—or have I got that wrong?

1.45 pm

Mr Raab: Very briefly, that is not what I was saying. I think that the hon. Gentleman has added one and one and made three. I have received a memo from the Home Office team that sets out the position on rule 39 in relation to article 8 cases. Precisely because of the concerns that are shared across the House, I asked whether we were likely to see a deportation process gummed up by a rule 39 injunction.

Chris Bryant: So the Home Secretary is wrong.

Mr Raab: I will come to that, but I want to be clear about what the advice is. The advice that I received from officials was that Strasbourg would rarely, if ever, consider a rule 39 injunction in relation to an article 8 case because there is no irreversible harm.

Mrs May: If I may, I will make a triaged intervention, Madam Deputy Speaker. To clarify, all I said was that I had received legal advice. It is not the practice for Ministers to say in this House whether legal advice has come from the Attorney-General or from other sources. I am absolutely clear from the legal advice that I received that new clause 15 is incompatible with the European convention on human rights.

In answer to my hon. Friend, the advice from the Home Office is absolutely clear that a rule 39 injunction would be less likely to be imposed where the decision had undertaken a balancing act in considering the issues. That is precisely what the Bill allows. My hon. Friend’s new clause does not allow that. That is why rule 39 would be more likely to be used under his proposal.

Mr Raab: I thank the Home Secretary for her intervention. I have the memo that I received in front of me. I will read from it so that there is no doubt and so that hon. Members can make up their minds. It states that it is clear from the case law that

“it would only be in exceptional cases that an interim measure would be granted in an A8 case.”

It goes on to say:

“I can’t say whether there has ever been a Rule 39 in a UK A8 case, but it is obviously rare.”

It goes on to say, because I was asking the question in relation to the Government’s clauses:

“we do not expect interim measures under Rule 39 to be issued routinely, if at all.”

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I do not want to engage in a clash of legal opinions here, although the Attorney-General is free to intervene on me, but I say briefly in response to the Home Secretary that there is nothing in the limited case law of Strasbourg to suggest that the Bill and the new clause that I have tabled are different. One never gets such precision from the Strasbourg Court and I do not think that that is what the Home Secretary meant.

Mr Bone: My hon. Friend seems to have won over one Member of the House who is not here at present, because the BBC is reporting that the Prime Minister supports his aim and has ordered his Ministers not to oppose him.

Mr Raab: I thank my hon. Friend for keeping the House updated on that important development.

The key point is that it is clear from the text of the European convention—I have referred to paragraph 2 of article 8—that, under the terms expressly set down by the architects of the convention, the new clause is proportionate. It is proportionate because it applies only to serious criminals who have been imprisoned for a year or more. It therefore ought to withstand any appeal to Strasbourg.

I remind the House that we are not entirely sure how any litigation in Strasbourg on this issue would pan out, whether on the basis of the Bill or the new clause. That is partly because the 47-member-state Council of Europe, to which the Strasbourg Court is accountable, has made two recent declarations in Izmir and Brighton calling on Strasbourg in unequivocal language to meddle less in immigration cases. We therefore have every reason to believe that we will have a greater margin of appreciation in future. I pay tribute to the Minister without Portfolio, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), for the efforts that he made when he was Justice Secretary to achieve those resolutions, which have paved the way for the new clause.

Sarah Teather: Will the hon. Gentleman give way?

Mr Raab: I will not give way again, because I have been reasonably generous to the hon. Lady and I want to give other Members an opportunity to speak.

If we are honest, we know that any serious reform in this area risks being frowned on by the Strasbourg Court at some point in the future. The goalposts keep on shifting. That is how we got to this point in the first place. However, the same objection applies to the Bill. As the president of the Supreme Court and the former Lord Chief Justice, Lord Judge, have stated many times, the last word on the balance between human rights and public policy must remain with the UK courts and, ultimately, with elected and accountable law makers in Parliament.

There has been a lot of heady talk about human rights reform. Today, we have an opportunity to do something about it.

Dr Huppert: Will the hon. Gentleman give way?

Mr Raab: I will not give way because I want to give other hon. Members a chance to speak. I am sure that the hon. Gentleman is one of those who will be queuing up.

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New clause 15 and amendment 62 are practical, common-sense proposals that would protect the public, restore some common sense to our justice system and restore some trust outside this place. I commend them to the House.

Mr Straw: On 24 November 2003, a young girl aged 9, Amy Houston, was killed on the west side of my constituency of Blackburn by a man driving a motor car, Aso Mohammed Ibrahim. He was an unfounded asylum seeker with no basis for remaining in the United Kingdom, and at the time of the motor accident had a number of convictions for driving while disqualified and driving without insurance. He received a relatively short prison sentence for causing death by careless driving. Thereafter, he developed a relationship with a woman in my constituency who already had two children by other men. He then went on to commit further offences.

When the Home Office made efforts to deport Aso Mohammed Ibrahim, he resisted them on article 8 grounds. The matter went before a tribunal, which found in his favour. I was Justice Secretary by that time, and I spoke to the then Home Secretary, my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson), who ensured that a vigorous appeal was mounted in respect of that tribunal judgment. A new appeal was established, but that too was lost. Principally, it was lost on the ground not of Strasbourg law but of the way in which the British courts had widened the basis of article 8 beyond that of Strasbourg in order to protect individuals in this situation.

Knowing far more about the background of the case than ever went before the tribunals, my opinion was—and remains—that that man had abused his position in this country and set out to develop a relationship with a woman and have children with her solely in order to evade deportation and immigration controls. It is a matter of regret to me and to my right hon. Friend the Member for Kingston upon Hull West and Hessle that the courts appeared to endorse his wilful decision to evade those controls.

It is for those reasons that I, and those on my Front Bench, strongly support the amendments to the law that appear in clause 14 of the Bill. I have great regard for the hon. Member for Esher and Walton (Mr Raab), and I have talked to him at considerable length about the merits of his new clause. I am also listening carefully, as I said I would, to the debate today. I have no difficulty with seeking to direct the British courts towards a different conclusion from that towards which they are currently directed by the higher domestic courts in this country. That is also the purpose of clause 14.

I do have a problem, however, with the House knowingly deciding to legislate in a way that the best advice suggests would be incompatible with convention rights. That is because I am a strong supporter of the European convention on human rights. If the House wishes to decide to leave the convention, or to abrogate individual parts of it, it should seek to do so explicitly, rather than through an amendment of this kind. I accept that the hon. Gentleman has thought carefully about this matter, but it is with regret that I shall be unable to support his proposal today.

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I also want to say a few words to those who think that this is all about the Human Rights Act. I was the Minister responsible for the Act, and I am proud of it. I hope that I will not cause the Attorney-General, the right hon. and learned Member for Beaconsfield (Mr Grieve), too many blushes if I say that I remember his courageous maiden speech in the House, in which he spoke out in favour of the Human Rights Bill, as it then was. Those on his Front Bench voted against the Bill on Second Reading, but by the time we reached Third Reading they had come round and wished the Bill well.

Mr Hanson: Given that the Attorney-General is in his seat, does my right hon. Friend agree that it would be appropriate for him to help us by telling the House what advice the hon. Member for Esher and Walton (Mr Raab) and the Home Secretary have had on this measure? In that way, he could provide clarity to enable us to discuss the matter formally.

Mr Straw rose—

Madam Deputy Speaker (Mrs Eleanor Laing): Order. If the Attorney-General wishes to speak, he will find the right time to do so. It is not up to the right hon. Member for Delyn (Mr Hanson) to decide when that should be, and it should certainly not be in the middle of a speech by the right hon. Member for Blackburn (Mr Straw).

Mr Straw: I am sure that the Attorney-General and the hon. Member for Esher and Walton have had discussions about this, but for the avoidance of doubt, it does not lie in my mouth to suggest that the Attorney-General’s advice to Ministers should be made public. [Interruption.] And I would say to my hon. Friend the Member for Rhondda (Chris Bryant) that I do not think there are good reasons to make that advice public. We are all entitled to legal professional privilege, including Ministers.

Keith Vaz: And former Ministers.

Mr Straw: Yes; that is even more important.

I want briefly to comment on a point made by the hon. Member for Canterbury (Mr Brazier) on the way in which the higher courts have interpreted the Human Rights Act. I am proud of the Act, and although we can always amend legislation in the light of experience, I do not believe that it needs to be amended. It is a well crafted Act that brings into British law the convention rights to which we are subject anyway. The idea was that those rights should be accessible here, rather than in Strasbourg. Abolishing the Act would not remove our obligations under the European convention; the British Government would still be subject to them, but those rights would be more difficult to access.

The problem with the Human Rights Act is the way in which our higher courts have interpreted sections 2 and 3. They place on the courts an obligation to “take into account” Strasbourg jurisprudence, but our courts have interpreted that as meaning that our courts should follow Strasbourg jurisprudence. If the House had meant to use the word “follow”, we would have put it into the legislation. We did not do so; we used the words “take into account”. The Law Lords, in their wisdom, decided that in practice that meant “follow”.

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Mr Geoffrey Cox (Torridge and West Devon) (Con): But does the Supreme Court have any option but to follow Strasbourg, where there is a clear authority in Strasbourg? It knows that the case will then go to the Strasbourg Court, that its decision will be disapproved and that a contrary decision will come from Strasbourg. So, where there is a clear line, the Supreme Court has to follow Strasbourg in that way.

Mr Straw: With great respect to the hon. and learned Gentleman, the occasions on which the judgments of the Strasbourg Court are absolutely clear and on the point are extremely infrequent. It would also be unusual for a case to get that far if a case in Strasbourg was four-square with an incident case in the British courts. What would be the point of taking such a case that far?

Mr Cox: Prisoners’ rights?

Mr Straw: We do not want to get drawn down that particular rabbit hole, but the case of Hirst makes my point. For the avoidance of doubt, if the hon. and learned Gentleman reads the original judgment in that case, he will see that it involved such uncharted territory that at least five of the senior judges in the Strasbourg Court found in favour of the United Kingdom Government and not in favour of the criminal, Hirst. I also say to the hon. and learned Gentleman that if he follows a whole series of lectures given by very distinguished jurists in this country from Lord Hoffmann through to Lord Judge, he will see that there has been a strong current of opinion among our high judiciary against the views that are being taken by the Law Lords and the Supreme Court. Happily, I have summarised those in the second lecture I gave in the Hamlyn series in 2012, and I will send my notes to the hon. and learned Gentleman.

There is a serious issue that we need to put right to ensure that, in future, greater flexibility is given to the British courts. Yes, of course the courts have to apply the convention, which was the point made in the articles; that is made absolutely clear under section 2 of the Human Rights Act. As for the degree to which the courts apply the Strasbourg jurisprudence based on those convention articles, they need to take account of it, but not follow it. It is very important that our courts get back to the intention of this Parliament in 1998 when it passed the Human Rights Act. Had they done so, Aso Mohammed Ibrahim would not still be in this country. The problems we ran into there were not in respect of the convention of the Strasbourg Court or of the Human Rights Act, but in respect of the way in which article 8 had been interpreted by our own courts. It is my earnest hope that clause 14 will lead to some change in that.

2 pm

I hope that the Home Secretary will take away and consider what the hon. Member for Esher and Walton has proposed. He was a very good lawyer in the Foreign Office when I was Foreign Secretary. He is not someone who is foaming at the mouth about the Human Rights Act. There is serious purpose in what he has suggested, and there may be a way through to meet halfway, between what the Home Secretary proposes and what he proposes.

Mr Raab: On this point of the legality, it is clear from how the Human Rights Act has been drafted that, where there is an incompatibility, ultimate sovereignty

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remains with Parliament and the Government. Therefore, the issue of illegality is separate from incompatibility. Given all the points that the right hon. Gentleman has made about the opacity, the shifting goal posts and the difficulty of nailing down the case law in Strasbourg—it does not have a doctrine of precedent—does he also agree that, for all the talk of Government legal advice, it is almost next to impossible, unless one is giving defensive and cautious advice, to give clear and focused advice on where Strasbourg will go, let alone where it is currently at?

Mr Straw: There are some instances where it is obvious, and some where it is less obvious. The hon. Gentleman is correct to say that even if a judgment is made by the Attorney-General, and indeed if the declaration is made by the British courts of incompatibility with the convention rights, section 4 of the Act makes it absolutely crystal clear that those provisions remain in force. That was part of the elegant architecture of the Human Rights Act. The role of the Parliamentary Counsel was to ensure that parliamentary sovereignty over individual legislation was maintained. The problem of the hon. Gentleman—as he knows I really wanted to support his position—is that the Home Secretary has a duty under section 19 of the Act to say whether or not the provisions in the Bill as it goes forward are or are not compatible with the convention.

I once signed a certificate saying that a particular Bill was not compatible with the convention, and Parliament still passed it. None the less, it does create difficulties. We cannot suddenly, on a wing and a prayer, say, “Well, in five years’ time, this will end up before the Strasbourg Court.” It is something that will come before Parliament at the next stage of this legislation.

Charlie Elphicke (Dover) (Con): I am slightly troubled by the right hon. Gentleman’s argument. When the original Act was brought forward, the Home Office publication was clear. It said that the Bill provides for legislation

“to be interpreted so far as possible so as to be compatible with the Convention. This goes far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision.”

At the time the Human Rights Act was put before the House, the Home Office knew exactly how far-reaching the change would be.

Mr Straw: I do not follow the hon. Gentleman’s point. None the less, it is still the case that the Home Secretary signs a certificate under section 19 saying that the Bill is compatible with the convention. Section 3 of the Act requires primary legislation to be read and given effect in a way that is compatible with convention rights, and that is what we are talking about. Parliament can pass any Act it wants. It may be incompatible, but it can still be in force. We are all concerned to ensure that as many people as possible are deported, where it is justifiable, as quickly as possible.

Charlie Elphicke: The right hon. Gentleman was saying that the courts had gone too far in the interpretation of section 3. My point was that the Home Office at the time was clear that that was the purpose it wanted to achieve.

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Mr Straw: With respect, the hon. Gentleman is confusing section 3 with section 2. Section 3 says that the courts must read legislation

“in a way which is compatible with the Convention rights.”

That is the black letter text of the convention articles. Section 2 says that a court or tribunal that is determining a question which has arisen in connection with a Convention right “must take into account” the judgments and jurisprudence of the Strasbourg Court. It is in respect of section 2 and the jurisprudence of the Strasbourg Court that our courts have extended the words “take account” to mean “follow”. That has been the basis of some of our problems, including the over-extension and elaboration—unnecessary in my judgment—of article 8 rights.

I am aware that there are others who wish to speak, so I will finish there.

Sarah Teather: I have a number of amendments in this string. I wish to speak to amendments 56 and 57, which relate to immigration detention. Amendments 2 to 5 and 58 are around the best interests of children. Amendment 61 is a sunset clause, which relates to legal aid. Amendment 60 relates to the use of force. I want to make a couple of remarks relating to Opposition amendment 1 and to speak against new clause 15 and Government new clause 18. I can hear Members groaning that I will be speaking for absolutely ages. They will be amazed because I can be remarkably quick.

Amendments 56 and 57 seek to impose some kind of challenge and limit on detention. The UK detains more people under immigration powers than almost any other country in Europe. Only Greece detains more, but it tends to detain people only for very short periods of time as they come to the border. In fact, we are unique in detaining people indefinitely. That experience of indefinite detention causes profound stress to the individuals concerned, many of whom suffer from mental health difficulties as a result of the journey that they made to get here, and many exhibit profound mental health difficulties during their period in detention.

Furthermore, in many cases, we have no chance of removing the people whom we have in detention to a third country. Often, people are left languishing in detention for extended periods because we are unable to move them to the country of their origin either because it is not safe to do so or because we cannot obtain travel papers. We have been repeatedly criticised for the number of people we detain and for the length of the period for which we detain them. Indeed, the detained fast track system seems to be largely used for administrative purposes. [Interruption.]

Madam Deputy Speaker (Mrs Eleanor Laing): Order. The Chamber has suddenly got very noisy. The hon. Lady is making important points, and other Members should do her and the House the courtesy of listening. If conversations have to take place, there are plenty of places outwith the Chamber in which those conversations can occur.

Sarah Teather: Thank you, Madam Deputy Speaker.

The detained fast-track scheme seems to be a process largely of detaining people for administrative ease, often for extended periods, despite its name. It is as if we file

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people until we want to move them somewhere else and they end up being treated like blocks of paper rather than individual human beings.

Ms Diane Abbott (Hackney North and Stoke Newington) (Lab): Does the hon. Lady agree that much of the detention is essentially punitive and without benefit of due process? We should always remember that these people have committed no crime.

Sarah Teather: I absolutely agree with the hon. Lady. Of course, it is not effective in doing what we claim to be trying to deliver. The people detained over a long period of time are those whom we are least likely to be able to remove. Detention Action monitored long-term detainees and found that only a third were ultimately removed or deported. The longer somebody is in detention, the less likely they are to be removed. Extreme stress is caused to the individual, extreme expense is caused to the UK and no benefit is gained for the wider common good.

Amendment 56 seeks to limit the time of detention to 28 days, forcing the Home Office to do what most other countries in Europe have managed to do and find some other way of enforcing removal without putting people into detention. Indeed, 82% of returned asylum seekers in Sweden left voluntarily. When I was a children’s Minister I had a great deal of discussion with the Home Office about ending child detention and we eventually managed to reach an agreement. I was pleased to hear the Home Secretary say in response to an intervention from my hon. Friend the Member for Cambridge (Dr Huppert) that we would put some of those provisions on the face of the Bill. I shall await the detail with interest and hope that everything we agreed in 2010 will be included and that it will not just be an agreement in headline.

Ian Mearns (Gateshead) (Lab): There is of course a question mark over whether some detainees are minors. They often arrive in this country without the appropriate documentation and it can be difficult to know whether they are past the age of majority. Those youngsters, who subsequently prove to be minors, are still kept in detention.

Sarah Teather: There is a particular difficulty with the speed at which we determine the age of young people at the moment and it varies significantly from one borough to another. I encourage the Home Office to work closely with local authorities to try to speed that process up.

My point is that we have managed to do such a thing for families with children and a great deal of learning has happened in the Home Office that we could extend to adults held in detention. We are managing to remove people whom we want to remove without putting them into detention, and a great deal of good and innovative thinking has been happening. It would be fantastic if good practice in one area of the Home Office was to extend to other areas of the Department. A 28-day limit would sharpen the mind of the Home Office and encourage it to get on and do that.

Amendment 57 would ensure that people had an opportunity to challenge their detention by ensuring that it came up regularly for review. The review would

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first happen shortly after they went into detention and then at intervals thereafter. The UNHCR has repeatedly asked us to look at that and I strongly urge the Home Secretary to consider it.

Unfortunately, in direct competition with my proposals to try to encourage better due process for people in detention, the Government are proposing to remove people’s rights to apply for bail. That is a very retrograde step. I know that the hon. Member for Hayes and Harlington (John McDonnell) has tabled amendments on this matter, and if he decides to press them to a vote I will certainly support them.

I have also tabled a raft of amendments on the best interests of children. The drafting of clause 14 appears to imply that certain children are somehow invisible, which goes completely contrary to the work I did in government as a children’s Minister. It was with significant frustration that I read the wording used in the Bill, which, from my perspective, undermines the work we did to end child detention and put in place in the Home Office a practice of considering the best interests of children. More to the point, it runs contrary to existing law. At worst it is unlawful, at best it is deeply and profoundly confusing.

2.15 pm

We also seem to have a notion of the public interest that does not include children. We seem to have a narrow view of the public interest and to take a very right-wing perspective on it. I want to offer a slightly different view, which includes the best interests of children. I want to live in a society in which we are more sympathetic and in which we consider the rights of families as a matter of course and that is what my amendment 58 seeks to bring about.

Amendments 2 to 5 seek to try to correct the rather confused position in clause 14. If the Secretary of State must give her views about what is in the public interest, it must include children and must be in accordance with the UN convention on the rights of the child, which we have signed up to. Much of yesterday’s debate centred on the plight of children and it seems to me that such children in the UK would be aversely affected by the provisions in the Bill. An unaccompanied migrant who has been in the country for less than seven years will apparently be invisible to the Home Secretary as clause 14 is drafted. A settled child who came here at two, who has been here for less than seven years and who knows no other country is apparently also invisible to the Home Secretary.

When colleagues have pressed the Immigration Minister on such matters, he has sought to assure them that the courts are still bound by our duties under UNCRC and by the section 55 duty in the Borders, Citizenship and Immigration Act 2009 to ensure that welfare and safeguarding for children are provided for all children in the exercise of immigration functions. If that is the case, I wonder what the point is of tabling something that is confused and contradicts what the Immigration Minister claims will take primacy. As the Joint Committee on Human Rights has noticed, the most likely outcome is that front-line immigration officers will be unclear about the relationship between the section 55 duty and the test in the Bill.

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We had a great deal of debate earlier about foreign national prisoners, but clause 14 applies to all article 8 claims and not just to the deportation of foreign national prisoners—

Madam Deputy Speaker (Mrs Eleanor Laing): Order. I am sure that the hon. Lady is not talking about new clause 14 at this stage, because it comes in the next but one group of amendments. She may refer to it, but she must stick to this group of amendments.

Sarah Teather: I am trying to explain why I have tabled my amendments to the clause, as amendments 2 to 5 relate directly to clause 14, as do my other amendments. I cannot explain them without referring to clause 14 to clarify, I am afraid.

A lot of people might be under a misapprehension, as regards the redrafting of what is in the public interest, that the measure will only apply to a very small group of foreign national prisoners. My point is that it will apply to anybody who attempts to make an article 8 appeal.

Let me make a point about new clause 15 that follows on directly from those points. It seeks to move things in the opposite direction from the proposals I have been trying to make. I find it slightly astonishing that any hon. Member would put their name to something that states that it is okay to cause serious harm to children, to cause manifest harm to children and to cause overwhelming harm to children, and that it is only not okay to cause manifest and overwhelming harm to children. Indeed, it has to be the child of the particular individual concerned and it is otherwise fine to cause manifest and overwhelming harm to any child. I am absolutely astonished that hon. Members think that that is okay.

Mrs Anne Main (St Albans) (Con): As a Member who put her name to the clause that the hon. Lady is disputing, may I say that if she looks at the intent behind it, she will see that Members such as me and others across the House wish to see the greater good of the population trump the good of the individual? She is losing sight of other people who may be harmed, who might be other people’s children.

Sarah Teather: I think I probably do not share her utilitarian view of what the greater good is. I probably have a slightly different view about the common good and do not think that that includes causing serious or manifest or overwhelming harm to children. That is why the UK is a signatory to the UNCRC, and why we believe that the best interests of children should always take prime consideration and that the law should be blind in that regard, irrespective of someone’s immigration status. It would be a sad day if the House legislated to say that it is okay to cause serious harm to children and indeed that it is okay to do that in order to pacify a Conservative party rebellion. That is not a good reason for legislating.

Jacob Rees-Mogg: I wonder whether the hon. Lady is placing the blame on the wrong person. If someone is deported for committing a serious crime, it is the fault of that person, not of the state for following the consequence of what that person has chosen to do.

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Sarah Teather: But is it the fault of their child? That is the point. The law allows us to weigh these tests up and it does not always say that if someone has a child there is not a case for deporting them, but it allows us to look at individual cases. The law must look at individual cases and not set hard and fast lines.

Ms Abbott: Does the hon. Lady agree that it has long been a principle of British law that we cannot hold children responsible for the wrongdoing of their parents? I do not know how many Members would want to live in a society where some children have more value than others.

Sarah Teather: I absolutely agree with the hon. Lady. The law must have the flexibility to look at individual cases. If we draw bright lines in the sand, it becomes difficult for judges to take into account individual circumstances.

Automatic deportation goes slightly wider than the issue of children. Further to the discussion on new clause 15, I want to raise a constituent case. A young man came here as an extremely young child and was given refugee status. His parents then had some difficulties and he was taken into care. His mother had mental health difficulties. The local authority negligently placed him into the foster care of a couple who were drug dealers and continued to engage in significant criminal activity during the course of which the young child was profoundly damaged, as one might well expect. The local authority was found criminally negligent in this case.

By the time the child turned 18 he was convicted of a serious crime. He went to prison. He would have been in prison for long enough to quality for automatic deportation, but he had been in the UK since he was a very young child. He had been given refugee status. There was no family for him to go back to. By all decent recognition of what had happened to him, the state had been negligent in how it treated him. I cannot see any way in which that young man would have protection under new clause 15 as it is drafted.

I come back to the point about what is in the public interest. I do not want to live in a society where judges cannot look at the detail of cases such as that of my constituent. We have had some debate about whether new clause 15 is in accordance with the European convention on human rights. I have had advice from the Immigration Law Practitioners Association that the Home Secretary was unlikely to be able to sign up to saying that the provision was compatible with the Human Rights Act 1998, which would make it difficult for it to go into the House of Lords. There was a mischievous moment when I wondered whether, despite my abhorrence for the new clause, I should support it in order to destroy the Bill completely, given that I do not seem to be able find enough people to vote against the Bill to wreck it, which is what I would really truly like to do, as there is little in it that I like.

We have not had much opportunity to discuss amendment 60. It relates to limits on the use of force by immigration officers and tries to bring it back to the status quo. This seems to be another example of giving a blank cheque, and to an organisation that has hardly covered itself in glory where use of force is concerned. We have had issues with use of force against pregnant

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women—something on which Her Majesty’s inspectorate of prisons was extremely critical of the Home Office. We have had the death of Jimmy Mubenga. Those are just two recent examples. It seems to me that a failing organisation that is poorly managed should never be given increased power to use force, especially as many of the functions of immigration officers do not properly involve the use of force at all.

Jeremy Corbyn: I commend the hon. Lady for tabling amendment 60. Jimmy Mubenga died in horrific circumstances. Is she aware that in many cases the forced removal is undertaken by contractors on behalf of the Home Office and those contractors are not necessarily trained in what they do? Appalling injuries take place and a large number of deportations are stopped because the airlines refuse to take people in an unsafe situation.

Sarah Teather: That is exactly the point. The Bill effectively gives all immigration officers retrospective freedom against any Act that has previously come into force, any power that immigration officers have and any future power that they have to use force to do what they want to do. Given the problems that we have already seen in making sure that contractors and immigration officers follow best practice, know what they are doing and are properly trained, how on earth the Home Office will be able to devise a training programme to cover every possible power that immigration officers have is beyond me.

I dare say that in most things that immigration officers can do, the reasonable force that is appropriate will be zero. Will the Home Office issue guidance for every possible power that an immigration officer has? I go back to the point I made earlier. The Bill goes against the agreement that we made in relation to treatment of children and families that we would end child detention. The agreement was much wider, I hasten to add, than families being kept in Yarl’s Wood. It was about working with children and families and the extent to which force would be used throughout the process. The power in schedule 1 is very worrying, and there has been no press scrutiny of it.

Labour amendment 1 would remove the provisions in the Bill that limit the right of appeal.

Madam Deputy Speaker: Order. Before the hon. Lady comes on to her next point, the House appreciates that she has many important points to make and that this is a large group of amendments and new clauses. Her speech is perfectly in order, but now that she has spoken for more than 20 minutes, she might consider drawing her remarks to a conclusion. She might not be aware that I have had notice that at least 14 other hon. Members wish to take part in the debate, and time is limited.

Sarah Teather: I do not have many other points to make.

I want to make a point about amendment 1 that has not been made. There has been a great deal of guff about the Bill being focused on restricting the rights of appeal of people who do play by the rules. It is important to stress that the restrictions on appeal in the Bill are exactly for those who do play by the rules. They are for people who come here to work and for family purposes. When taken together with the changes that make it

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more difficult to get a spousal visa, it is hard not to see this as an attack on family life. An administrative review is simply not equivalent to an appeal. An organisation such as the Home Office cannot be expected to challenge itself. I would be grateful if the Home Secretary addressed the point that I made in an intervention on the right hon. Member for Delyn (Mr Hanson) about the anomaly with respect to administrative review and appeal when applying for variation in leave.

2.30 pm

If a Division is called on new clause 18, I will certainly vote against it. If the Opposition decide to press their amendments to the new clause, I shall vote with them, but those amendments do not go far enough, because making people stateless is simply wrong. I accept that the Home Secretary says that the measure will apply to only a limited number of people, but that does not make it any less wrong. If the new clause is accepted, we will find ourselves on a list of states that represents a roll-call of dishonour, but I want us to be leading international policy in this area, rather than trailing it.

I am, frankly, aghast that my party has been willing to sign up to new clause 18. If a Division is called on it, I would strongly encourage my colleagues to vote in the No Lobby. It is difficult for any Liberal Democrat to support such a measure, especially as the safeguards that the Home Secretary talked about will be set out nowhere in the Bill.

Madam Deputy Speaker (Mrs Eleanor Laing): I call Pete Wishart.

Pete Wishart: Thank you very much, Madam Deputy Speaker. I was not expecting that, but I am delighted to be called so early in the debate.

This is a rotten Bill made all the more rotten by some of these appalling amendments. We are in this position because the Government are in an appalling race to the bottom with the UK Independence party—this is all about seeing who can be toughest on immigration. I have to say to the Home Secretary, “You’re not gonnae win that one—forget about it. You cannot out-UKIP UKIP. They are the masters of nasty, pernicious populism, and you’ll never beat them.” It is a credit to the Government that they will not be able to beat UKIP on such issues but, by God, with this Bill and their amendments, they are having a good stab at it. I expect the right hon. Lady to lose that particular battle.

The Government’s stated aim through the Bill is to make the UK a more hostile environment for illegal immigrants. Well done Home Secretary; you have certainly achieved that with fantastic aplomb. The job of these right-wing immigration Bills is to do two simple, straightforward things: stop people coming in; and kick out as many people we do not like as we can at the same time. The Bill manages to achieve both those objectives, and the addition of the Government’s amendments and new clauses means that it will be done even more thoroughly.

Dr Thérèse Coffey (Suffolk Coastal) (Con): Is the hon. Gentleman happy about how long it can take to remove someone who has broken the law and is not legally entitled to be here, despite the risk of their committing further crime in this country?

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Pete Wishart: I will address that point directly because it is at the heart of what we are debating and something that my hon. Friend the Member for Banff and Buchan (Dr Whiteford) mentioned. I am happy to ensure that people who have been found guilty of crime after going through the core judicial process are deported, but I am very unhappy about suspects being deported and facing the full force of the law. This is part of a trend. It was a theme of new Labour that a person needed to be only a suspect for things to be flung at them. Labour created a fantastic anti-civil libertarian state that the Conservatives, to their credit, dismantled quite effectively, but we will now have an anti-civil libertarian state—created by new Labour and continued by the Conservatives—that has the basic premise that it is all right to throw suspects out of this country and to treat them appallingly.

Jeremy Corbyn: Is the hon. Gentleman aware that if someone is deported but allowed to conduct an appeal in this country, it is almost impossible for them to do that? A deportation therefore effectively involves no real right of appeal nor any real access to justice, so it is a pernicious decision.

Pete Wishart: The hon. Gentleman is spot on, and he gets to the heart of what we are debating. What is happening in this country—the fact that we are prepared to legislate in such a way—makes me feel ashamed. It is appalling that my country of Scotland is being dragged into this nasty, pernicious, appalling race to the bottom on immigration. It is such a shame that we are not independent yet to allow us to get out of this absolute nonsense.

Mr Nigel Dodds (Belfast North) (DUP): So you are against the Bill.

Pete Wishart: I think the right hon. Gentleman will find that I probably am.

Mr Brian H. Donohoe (Central Ayrshire) (Lab): Surely it is within the scope of the hon. Gentleman’s Parliament and Executive in Scotland to change the law and make the situation in Scotland narrower.

Pete Wishart: I am grateful for the hon. Gentleman’s intervention because it takes me on to new clause 11, which the Home Secretary tabled at the last possible moment. The new clause deals with sham marriage and civil partnership, which is a responsibility of the Scottish Government and a competence of the devolved Parliament in Edinburgh. As you well know, Madam Deputy Speaker, marriage is subject to Scots law. The hon. Gentleman has been in the House longer than me, so we have both been here through the devolution experience, and I think this is the first time that we have seen a Bill that impacts on matters for which we have legislative responsibility without having a legislative consent motion to allow the House to legislate on behalf of the Scottish Parliament.

As far as I am aware, the Scottish Government have called again and again for an LCM so that the Scottish Parliament can decide whether to allow this Parliament to legislate on its behalf. No LCM has been forthcoming at all, even though we are responsible—

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The Minister for Immigration (Mr Mark Harper) indicated dissent.

Pete Wishart: The Minister indicates that an LCM is not necessary, but does he agree that we are responsible for marriage and civil partnerships? We are responsible for the health service and housing in Scotland, but there has been no LCM to ask the Scottish Government if they agree to allow Westminster to legislate. We are totally unsatisfied with the Minister’s responses on this—

Mr Harper rose—

Pete Wishart: We should have an LCM, but the Minister can explain why we are not getting one.

Mr Harper: With the greatest respect, I have had conversations with the First Minister and engaged in correspondence with Scottish Ministers. Our clear view is that the Bill deals with reserved matters for a reserved purpose, so we do not believe that an LCM is needed. The tone of the responses that I have received from Scottish Ministers—Scottish National party members of the Scottish Government—does not accord with what the hon. Gentleman says.

Pete Wishart: That is not my view of the correspondence that I have seen. I am surprised that the Minister says such a thing because the Bill is foreign to how we want to run our NHS. It has nothing to do with how we want to deliver our devolved services. We are not privatising the NHS like they are down here; we want to invest in it and ensure that it sticks to the ’45 principles of “from cradle to grave”. We fundamentally disagree with the Government about the need for such measures, and we want an LCM so that we can say clearly to them, “Stay out of our devolved services. Keep your race with UKIP out of our delivery of the NHS and other devolved services.” I still hope, although it is probably too late, that we will have an LCM.

A number of the measures in the group are pretty chilling, one of which is new clause 18, on which the Home Secretary spent such a good part of her hour and a half speech. What an appalling measure. This is about removing citizenship from people. Watching the Home Secretary’s attempts to respond to the many searching “what happens if” questions would almost have been comical were it not so sad. She could not start to answer the simple question—some of my hon. colleagues on this side of the House might want to revisit this during the winding-up speeches—of what happens to someone who is stripped of their UK citizenship but is not taken by any other country. I think I heard something along the lines of, “We might give them their citizenship back,” but if that is the case, what is the point of doing it in the first place? Who is going to take these people? Are we going to launch them into orbit and leave them circling round the Earth as stateless people without any sort of citizenship? Is France going to take them, or Germany? [Interruption.] What about an independent Scotland, I am asked. Where will those people go? This is the big question that the Home Secretary has been unable to answer: what will happen to those people once they have been deprived of their citizenship? What will happen to their children, or the people who depend on them? We really need to hear from her on that.

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The Home Secretary is effectively asking us to agree to allow her to rip up the passports of people who live in this country. As I have said, these measures have been introduced so late in order to prevent Back Benchers from having the opportunity to speak about the most important parts of the Bill and so that they cannot be voted on, which is absolutely appalling. In fact, to say that the Government’s amendments look like they had been written on the back of a fag packet is to do a disservice to some fantastic speeches that I have heard delivered from the back of a fag packet. Little thought seems to have gone into them.

The plans for the revocation of citizenship have been made by the Home Secretary behind closed doors and without any sort of due process or transparency. Hon. Members might have seen the reports in The Independent today about how some people have subsequently been killed in US drone strikes or rendered to secret locations to be interrogated by the FBI. Perhaps that is what will happen to all these people. They are being betrayed by their own Government, whose duty is to protect them, not throw them under a bus in order to help powerful allies, which looks like what we will be doing. She said that we are simply returning to the situation that existed before 2003, but the UK has signed and ratified the 1961 convention on the reduction of statelessness, to which more than 50 states are signatories. We will now be breaking that.

I will speak briefly about new clause 15, tabled by the hon. Member for Esher and Walton (Mr Raab). We know, as has been said again and again, that Conservative Members do not much care for article 8 of the European convention on human rights. They would have us believe that there are all sorts of foreign criminals marauding across our communities, living the life of Riley on benefits and then going home to phone their expensive lawyers, saying, “Get me off on article 8.” That is the type of image they present. They continue to attack some of the great protections that we have secured over many decades on the back of the European convention on human rights. We are now seeing yet another attack on our human rights. It is no surprise that it comes from the Conservative Back Benches. I very much hope that we will resist it.

Charlie Elphicke: On a point of clarification, and in relation to the new clause tabled by my hon. Friend the Member for Esher and Walton (Mr Raab), if Scotland were to become independent, does the hon. Gentleman believe that it would not only petition to join the European Union as a new accession state, but seek to join the Council of Europe?

Pete Wishart: Yes, and I will tell the hon. Gentleman something else: an independent Scotland will sign up fully to the European convention on human rights and take our responsibility in that regard very seriously. We will not be cavalier, as this Government seem to be in their approach to some of these very important human rights. I look forward to the day when Scotland, as an independent nation, will take very seriously its responsibilities to protect our citizens and ensure that they are properly protected by international laws and regulations.

Jacob Rees-Mogg: I do not understand why the hon. Gentleman does not have the courage to claim that Scotland would be the successor state and would

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therefore inherit membership of all those bodies, leaving England, Wales and Northern Ireland free from the European Union?

Pete Wishart: I invite the hon. Gentleman, who I know takes a great interest in these matters—

Madam Deputy Speaker (Mrs Eleanor Laing): Order. I am going to give the hon. Gentleman the protection of the Chair on that question, which he does not have to answer, because we are beginning to stray a little—not far—from the point in question.

Pete Wishart: Thank you, Madam Deputy Speaker, although I do not need your protection when it comes to these issues. All I will say to the hon. Gentleman is that he should turn up to next week’s debate on Scotland’s place in the United Kingdom so that can discuss them further.

I will bring my remarks to a close. What we are seeing today is a dreadful Bill being made even worse. We will vote against it on Third Reading, although I do not think that we will get much of a debate on Third Reading. It is a terrible Bill, and this has been an awful process. It makes me ashamed that we are still part of all this. I just long for the day when we will have a Government in Scotland who do not spend all this time exercising themselves, as this Government do, over immigration, EU exit and all the nasty and pernicious things they are doing because of UKIP. It might as well be Nigel Farage standing at the Dispatch Box. Why do we not just get him in, because he has the whole House dancing to a UKIP jig? That is what we will see right up to the end of this Parliament: Nigel Farage pulling all the strings of Conservative Front Benchers. They might as well have him at the Dispatch Box, because this is nothing other than a UKIP Bill.

2.45 pm

Jacob Rees-Mogg: I must confess that the image of my right hon. Friend the Home Secretary being a puppet on a string for Nigel Farage is one that is new to most Members of the House, and one that seems rather far from the truth. I wish to speak to two new clauses: new clause 15, tabled by my hon. Friend the Member for Esher and Walton (Mr Raab), and which I have signed; and new clause 18.

May I first say how fortunate it is that the Government and the authorities-that-be have ensured that new clause 15 has come up for debate this afternoon? It is crucial that the House of Commons should get to debate that which the House of Commons wishes to debate, and 105 signatures to a new clause is a clear statement of that desire. The business managers therefore deserve to be commended for their wisdom in allowing that to happen, and those in even higher positions of authority—I am thinking of Mr Speaker, in particular—follow in a fine tradition of Speakers who have ensured that the will of the House has been allowed to be expressed and a view come to. That is good fortune for us all.

I must confess that I disagree fundamentally with the case made by the hon. Member for Brent Central (Sarah Teather). It seems to me that part of our system of liberty is the fact that liberty comes with responsibilities. One of those responsibilities is that if a person’s actions are illegal, a punishment will follow, and that punishment is their responsibility and their fault. They cannot get out of it because other people might be indirectly

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affected by it. That is not what their actions have caused; their actions have caused them to go to prison, for a minimum of a year according to the new clause, and then to be deported because they were foreign criminals and therefore had no automatic right to be here in the first place. That is an important and fair principle.

If the alternative view is taken, which is that there will be knock-on effects on other people and therefore it is unfair and unreasonable to allow a punishment to take place, then no punishment can ever take place and we can have no proper rule of law in this country. Whenever somebody commits a crime and is likely to be sent to prison, they will say that their family cannot cope with that and that it will be unfair, and therefore their sentence must be brought down and they must be free to carry on their life of crime. I fundamentally disagree with the hon. Member for Brent Central and think that the provision in the new clause is both proportionate and sensible.

Mike Thornton: I very much appreciate the hon. Gentleman giving way. I believe that he has misheard my hon. Friend the Member for Brent Central (Sarah Teather), because I know that he would not deliberately misinterpret her comments. She was by no means saying that someone should not be punished because they have children; she was saying that, when considering them for deportation, we should properly weigh in the balance the genuine difficulties and harm that could be done to children. By no means was she suggesting—I hope that I am right—that we should stop punishment. That was no part of her argument whatsoever.

Jacob Rees-Mogg: I am grateful to my hon. Friend for his helpful clarification. The problem is that deportation is part of the punishment. The logic of the argument of the Member for Brent Central is that if someone’s punishment had an effect on their children that led not to “manifest and overwhelming harm” but to either manifest harm or overwhelming harm, it would be fundamentally and in principle unfair on the children, so that part of the punishment should not be carried out. Surely, however, it might equally be said that someone’s imprisonment would have an effect of manifest but not “manifest and overwhelming” harm on the children. If such an argument was accepted, the whole criminal justice concept of punishing people who have committed offences would become extremely difficult. Deportation is therefore simply a reasonable part of the overall punishment for someone who commits a serious offence.

I listened with great interest to the debate about the status of new clause 15 in European and UK law. A principle that we should always state and restate in this House is that, by its very nature, Parliament cannot pass a law that is illegal. We can pass laws that contravene international obligations or that we may decide our diplomatic relations require us to remove or repeal, but Parliament cannot pass an illegal law.

That point is important to remember, because there is a tyranny of lawyers. They give people advice stating that they think x or y, but until it has been judged by a court, that is no more than advice, which may be right or wrong. If my right hon. Friend the Home Secretary has been advised by the Home Office lawyer that the new clause does not meet the requirements of the

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European convention on human rights, that does not question the right of this House to pass it into law: it is our right to do so, and then to consider the judgment that may or may not be made by the European Court of Human Rights. That of course leaves open the question of whether the Home Secretary can sign the declaration that the Bill is compatible with the European convention on human rights. I am delighted that she is returning to her place as I say that.

My right hon. Friend has the right to go to another lawyer. When given legal advice that they do not like, many people see whether they can find one who gives different advice. Amazingly enough, when they pay a better lawyer, they sometimes get better advice. I hope that even in an era of austerity Her Majesty’s Government may seek out some better lawyers who can give improved advice that is more in line with what my hon. Friend the Member for Esher and Walton said.

The question is therefore only one of incompatibility, not of legality. I hope that the Opposition Front Bench team will also think about that. Whether the new clause is accepted and passed into law is not fundamentally a legal decision, because the legal position is as yet unproved—it has not been tested in the courts—so it is a political decision or a political statement about what hon. Members on both sides of the House think is the right way to treat people from foreign countries who have committed serious crimes. I would take the political decision that it is right to expel them from this country, and that it would be wrong to do so only if extraordinary factors meant that they ought to have the right to stay.

Yasmin Qureshi: It is on exactly that point that some Opposition Members have concerns about new clause 15. As the hon. Gentleman says, there may be exceptional circumstances that mean a decision should be made not to deport somebody, but the new clause tabled by the hon. Member for Esher and Walton (Mr Raab) would take away exactly such discretion, because it says, “If you get one year’s imprisonment, you’re out.”

Jacob Rees-Mogg: As always, the hon. Lady makes an excellent point, but it is a question about which bit of discretion would be taken away. The courts would retain discretion if there was a threat of harm or a threat to life and limb, as my hon. Friend the Member for Esher and Walton pointed out. Discretion would be circumscribed only in very specific cases relating to article 8, and that would be done because the courts appear to have made some quite eccentric decisions. What has really brought this to the attention of the British public is the huge backlog of deportations—4,000 people are apparently waiting to be deported—and the fact that a very high number of challenges are brought purely on the basis of article 8 rights, which cannot therefore involve people in fear of torture or of harm to life and limb. I do not think that anybody in the House wants to deport people at risk to life and limb. As a nation, we believe in offering refugee status to people genuinely at threat, but we are not in favour of the exaggeration of spurious rights.

As I have said, the decision is a political decision, not a legal one. It is for this House to make a political choice about how our criminal justice system works,

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what rights belong to people who have committed very serious crimes and how far such rights should go. If it became a legal decision—if it were taken to the courts—we would find out at a later stage whether the European Court of Human Rights thought it was compatible with the convention. The House would then make a second choice, which would be whether to maintain today’s political decision or reverse it to be compatible with the convention. That is not the choice before us today. This is a routine exercise of parliamentary sovereignty in adding to a Bill a provision that may become law and be justiciable at a later stage.

I know that a lot of other Members want to speak, so I will be brief on new clause 18. I have some concerns about it. I am perhaps rather romantic in my view of what it means to be a British subject. I always thought that Palmerston got it right on the Don Pacifico affair—the “Civis Romanus sum” principle. Once any one of us has a passport that says we are British, we are as British as anybody else, whether they were born here or got their passport five minutes ago. It is incredibly important that there is equality before the law for all Her Majesty’s subjects who are living in this country and have right of residence here.

I worry that if we give the Government the ability to take passports away from a certain category of British subject but not from others, it will create a potential unfairness and a second category of citizen. There are Members of the House who were born abroad and have been naturalised and, on occasion, they may vote against the Government, which I hope the Whips will not consider serious enough reason to remove their passport. The fundamental underlying principle of equality of all Her Majesty’s subjects is important. I am always nervous about giving the Executive relatively arbitrary powers, because they are the ones that can be most misused. Once a passport is in somebody’s hands, they ought to be no different from anybody else in any legal respect.

Crucially, there may well already be laws that could deal with the problem in another way. If people have committed an offence so serious, important and threatening to the life of the nation that their passport should be confiscated, surely they have committed some other crime for which they could be charged, dragged through the courts, perhaps found guilty by a jury and then sentenced accordingly, with the penalty handed down in the right and proper way and their rights and liberties as subjects being maintained. They may have committed treason if they have done something so serious that they are to have their passport removed from them.

I will not oppose the new clause, but I wished to raise those concerns. I understand that the approach has been agreed because it will not affect many people. That is fine—I am glad it will not have widespread application—but what message does it send to the nation at large?

Jeremy Corbyn: The hon. Gentleman makes a fair point in saying that not many people will be affected immediately, but once one gives a Minister an executive power to deny someone citizenship, who knows how many citizenships will be taken away in future?

Jacob Rees-Mogg: The House may be surprised to know that I am in almost complete agreement with the hon. Gentleman, which is rare—I think unique. One should always be suspicious of the arbitrary power of

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the state. As we saw with today’s proceedings about whether there would even be a vote on new clause 15, the arbitrary power of the state can sometimes be misused. The Executive sometimes have to come under pressure before they give way and allow the proper proceedings to take place. I much prefer a legal process, and I do not want to make the statement that people who have got their citizenship more recently than I did are in any sense lesser citizens. I fundamentally do not believe that. Anybody who is fortunate enough to be a subject of Her Majesty is an equal subject of Her Majesty with all others.

Mr Brooks Newmark (Braintree) (Con): On a point of order, Madam Deputy Speaker. It has just come to my notice that my name is on the list of those supporting the new clause and amendment tabled by my hon. Friend the Member for Esher and Walton (Mr Raab). I would like to make it clear that I have not spoken to my hon. Friend, nor given him my written consent to be named on his amendments. Can you advise me, Madam Deputy Speaker, on how I can get my name excised from the record, and will you look into tightening up the rules, such as by requiring a Member’s written consent before names are added to amendments in future?

Madam Deputy Speaker (Mrs Eleanor Laing): I thank the hon. Gentleman for his point of order, which he made with his usual eloquence. It is now on the record that his name should not have been on the amendment paper today as a supporter of that new clause and amendment. I should tell him that it is quite normal for the Table Office to accept a list of names as supporters of an amendment, but it would appear that a mistake was made in this case. I will ensure that the House authorities take all steps that they can to amend the record, so that his name does not appear as a supporter of the new clause and amendment. He has been most effective in making his point of order in front of the whole House so that it is obvious that he is not a supporter of them.

3 pm

James Duddridge (Rochford and Southend East) (Con): Further to that point of order, Madam Deputy Speaker. I am not aware of whether my name is attached to that new clause, but it was certainly not my intention or instruction to put my name down. Is there any way of clarifying the names attached to the new clause to see whether there have been any additional mistakes?

Madam Deputy Speaker: I am sure the hon. Gentleman is aware that the simple method of clarification is to look at the list, which is on the amendment paper. I will not take up the time of the House by checking whether his name is on it, but he might wish to do so himself.

Chris Bryant: Further to that point of order, Madam Deputy Speaker. Just to help the hon. Member for Rochford and Southend East (James Duddridge), may I point out that he is not on the list? However, there are amendment papers all around the building, and to be honest, he could do his own homework.

James Duddridge: Will the hon. Gentleman give way?

Chris Bryant: I suppose so.

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James Duddridge: My point was that I did not know about my name at that point, although I could check. However, how can I check to see whether all the names on the amendment paper are correct?

Madam Deputy Speaker: Order. We will not take up the time of the House in this important and short debate by discussing the composition of the amendment paper. It is in order and not a point of debate.

Chris Bryant: It is a great delight to follow the hon. Member for North East Somerset (Jacob Rees-Mogg) although I would like to correct him on a few details. Although Palmerston thought that Don Pacifico was undoubtedly a British citizen, merely because of his birth in Gibraltar, that would not necessarily apply today in the same way because he was actually a Portuguese Jew who therefore had more than one nationality at the time. I am not sure that the hon. Gentleman’s point applies reliably to the debate.

I entirely agree with everything the Home Secretary said about sham marriages. They are a real problem and in certain places in the country—most notably around London and the west midlands—there is a real issue to be tackled. I warmly commend Ministers who have taken the right actions in the Bill to deal with that. I am concerned, however, as my right hon. Friend the Member for Delyn (Mr Hanson) said earlier, about the business of removing people’s citizenship, not least because the way the proposal has been drafted gives a phenomenal degree of Executive power to the Secretary of State. I worry about that, as do several other Members, including the hon. Members for North East Somerset and for Brent Central (Sarah Teather).

Two years ago I remember going to the deportation centre at Heathrow and seeing a young man whose state we do not know. He refuses to say where he is from because he thinks he will be deported to that place. He had then been in that deportation centre for four years because for him, that half life in a sort of prison was better than the danger of being deported back somewhere. Some think the best way of dealing with the problem of deporting foreign criminals involves measures to change the rules on article 8. The biggest problem lies not with that, however, but with an awful lot of people who get to this country and instantly abandon their paperwork, either because that is what they intended to do from the beginning, or because they are from countries to which we simply cannot deport people. Again, I commend those Ministers who have worked—as Labour Ministers did in the previous Government—to try to ensure that people will not be subject to torture if they are returned to their country of origin, and that they will have a fair trial and so on There are, however, many countries around the world where such things still do not apply, and those cases make up the largest number of people, let alone those whose paperwork has been lost by the Home Office—also a substantial number. Of course I want foreign criminals to be deported and sent back to their country of origin, but I also want their human rights to be protected. I still believe in the right to a fair trial and am opposed to torture. I believe in all the things we have signed up to as a country. Let us not pretend that the Bill will sort out the bigger problem.

Jeremy Corbyn: Does my hon. Friend accept that one problem is the number of countries that have not signed the convention on torture? We should not deport anyone

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to a regime where no convention on torture is applicable, and we should not rely on dubious one-off agreements, which is what we have been doing.

Chris Bryant: I completely agree, and anyway, if we sought to deport anyone to such a regime, we would face the courts, which is a very expensive business in this country, and we would be certain of failure. It would be a nugatory exercise.

I worry about creating more stateless people, which is effectively the intention of the Home Secretary’s proposal. I can see an argument for making someone stateless when they are abroad—we can say that a person who has done something appalling, perhaps in another country, is longer welcome in this country and remove their citizenship—but I have a much greater problem with making someone stateless when they are in this country. What would we do? We make them stateless and deprive them of citizenship, but then what? Do we banish them? Do we pronounce exile? Does the Speaker demand that they leave the country? Do we march them to the airport if they refuse to go themselves? In any case, where will they go? What country will take them? That is my problem with the proposals being advanced. There is a mediaeval element in the Bill and it will not help us one jot.

Mike Gapes (Ilford South) (Lab/Co-op): I have been thinking about the question of where we might send people. Michael Howard, a previous Home Secretary, tried to send people to other parts of the world and President Obama sent Uighurs from Guantanamo to Bermuda. Perhaps we could consider sending people to some of the British overseas territories. St Helena comes to mind.

Chris Bryant: I do not know whether my hon. Friend is angling for a visit to St Helena.

My point to the Home Secretary is this: hon. Members know that there is an issue to be addressed and a legitimate question to ask, but this is not the way to advance legislation. The Government are introducing a significant change to the law on British citizenship at this late stage—on Report—and tabled the measure the day before the debate. If anybody wants to amend it, they must table manuscript amendments. If we are going down this route, it is important at least to have the safeguards the Opposition have tabled, but I wish we were doing this in a different way.

Yasmin Qureshi: On sending people away, if we take someone’s citizenship away and they are taken to the airport, where do we send them? They need travel documents. If they do not have them, no country will take them. The Government’s measures are completely impractical.

Chris Bryant: That is my problem. Sometimes legislation seems like a good idea but ends up being completely and utterly impracticable and making little difference. I suspect that that is the problem we will face with the Bill.

I know the Government are not seeking to do this, but my memory of countries that regularly took people’s citizenship off them in the 20th century is not a good one. It is a list of fascist countries. That is why I get very

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nervous about such moves. I am not saying that the Home Secretary is engaging in that, but when we give an arbitrary power and significant discretion to a Home Secretary to exercise it, there is a danger.

Mr Ward: Will the hon. Gentleman give way?

Chris Bryant: I am keen to finish because I know that many hon. Members wish to speak, but I will give way if the hon. Gentleman promises to be swift.

Mr Ward: Does the hon. Gentleman agree that this is one of the worst examples of the tail wagging dog we have ever seen? We all agree that the tail is unpleasant, but that does not mean we need to do terrible things to the rest of the animal.

Chris Bryant: I fear that that often happens in passing legislation. I have never known so many manuscript amendments as there have been this year. In the previous 13 years maybe two were accepted and we have had six or seven this year. I just do not think it is a good way of doing business.

The hon. Member for Esher and Walton (Mr Raab) is not in his place, which is a shame. I respect a lot of the issues he raised. There is an imbalance in the way the law relating to article 8 is constructed. Ultimately, the absolute core and rock on which our personal freedoms in this country are based is the rule of law. Because of habeas corpus nobody can be arbitrarily arrested. The law will determine, not party politics or a vote in the House of Commons. To those who regularly trot out the argument that the House of Commons must always have its way, I say, yes, but there are also the courts.

The rule of law, through the courts, argument and precedent developed over time, is a vital part of ensuring our ongoing freedom. That is not just about UK national law, but international law. I have a profound respect for the European convention on human rights. I thought the Home Secretary referred earlier to the Attorney-General having given the advice that the amendment was incompatible. I do not mind which lawyer it was and I am not urging her to publish it or anything like that— I take her at her word. If she believes that it is incompatible with the European convention on human rights, I cannot vote for the amendment and do not want to see it going forward from this House as part of the Bill. Why on earth would we want to do something that the Attorney-General, or whoever was masking for him to provide that advice, had said is incompatible? Every other lawyer I have spoken to, or that we on this side of the House have spoken to, has given exactly the same advice.

The hon. Member for Esher and Walton suggested that there are balancing issues and questions on whether there would be section 39 complaints or not. That is not my issue. All we have to do is look at the amendment, compare it with the European convention on human rights and see that the one does not match the other. That may be an inconvenient fact, but it would be illegal under our present treaty obligations. I do not want this country to renege on the European convention on human rights. We were right to bring it forward. David Maxwell Fyfe, who later became a Conservative Home Secretary—a nasty Home Secretary, I think—effectively drafted it and we should abide by it. We would be utter fools and

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disloyal to our treaty obligations if we were to support the amendment from the hon. Member for Esher and Walton.

Mr Dodds: On a point of order, Madam Deputy Speaker. Can you give guidance to the House on whether there is any prospect of the next group of amendments, including those on European immigration and access to services, being discussed, debated and voted on today?

Madam Deputy Speaker (Mrs Eleanor Laing): The right hon. Gentleman is aware that that is not a point of order. The way in which the debate progresses is up to the Members present in the Chamber and how long they speak for, as long as they speak in order. I will allow them to speak as long as they speak to the point in question and as long as they are in order. If hon. Members wish to speak for a very long time and deprive their colleagues of the opportunity to speak likewise, that is up to them. The right hon. Gentleman knows as well as I do that some Members of this House have a tendency to keep the floor when they have it.

Mr Brazier: I shall be mindful of your remarks, Madam Deputy Speaker.

I intend to follow the comments on the rule of law made by the hon. Member for Rhondda (Chris Bryant) in a moment, but may I first say that a number of Members have used the opportunity of the Report stage to attack the principles behind the Bill? This is an excellent Bill that addresses very real public concerns. I understand and share the concern that the amendments on deprivation of citizenship were tabled at the very last moment. Nevertheless, we must address the crisis of hundreds—some responsible sources suggest it might extend to thousands—of young men going abroad to be trained in terrorist activities. There is a tradition, which goes back to the dawn of time, of countries depriving people of citizenship where they engage in actively hostile military acts. Clearly, the wording needs tightening up, but it would require considerable discretion by the Executive—albeit exercised within a narrow definition of “hostile acts”—because it might not be possible to put some of the material before a court.

Mostly, I want to address new clause 15, tabled by my hon. Friend the Member for Esher and Walton (Mr Raab). Time is short and others want to speak, so I will not produce any more of the heartrending cases, some of which he touched on. I noticed, looking around, that Members in all parts of the House found some of those cases intensely difficult to listen to. The characteristically thoughtful speech by the right hon. Member for Blackburn (Mr Straw) touched on another such case—one that I have heard him mention in the House before.

3.15 pm

This debate goes to the heart of two theoretical questions, one of which we have spent quite a bit of time on, the other of which we have not touched on at all. The first concerns the relationship between this House and the British courts—all the way up previously to the House of Lords, but now to the Supreme Court—and the European Court of Human Rights. The second concerns judicial activism.

Yasmin Qureshi: On the point about removing people’s citizenship, my hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) was born in

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England, but I was born in Pakistan. We are both British nationals, but if she was to commit murder, which I am sure she is not going to, she could not be deported, whereas if I did, I could be. Is that fair?

Mr Brazier: That question runs across several different issues. I was making the same point that the right hon. Member for Leicester East (Keith Vaz), the Chairman of the Home Affairs Select Committee, made, which was about people who take up arms abroad. Whether they were born in this country or not, there is a long tradition of stripping citizenship from people who commit such offences. On the issue of murder, if somebody holds British citizenship, I would not allow the Executive a specific power in that area. I hope that answers the hon. Lady’s question.

I strongly support new clause 15. We have heard about the various cases, including one from the right hon. Member for Blackburn, and we have gone around the buoy of these three centres of power—the British Parliament, the British courts and the ECHR. I strongly support the view of Lord Judge, the outstanding retiring Lord Chief Justice, that Parliament needs to make it clear which, ultimately, is the supreme court for British law. Is it the UK Supreme Court, as he suggests it should be, or are we going to concede that the final word lies in Strasbourg? I firmly believe that the final word should stay in this country.

The point that my hon. Friend the Member for Esher and Walton made, which was repeated by a number of other people—including my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg)—is that while his proposal is almost certainly incompatible with recent rulings of the European Court of Human Rights, that cannot mean that it is illegal. This is a sovereign Parliament. We can pass the measure and the courts can try cases under it. If we make it clear, as I believe we should, that the Supreme Court in this country should be the supreme court, we do not have a problem. It is by pursuing cases such as this that we can finally sort out whether or not, as some Members on both sides claim, it is possible to sort out these issues and still accept the ultimate sovereignty of Strasbourg. We believe that we have to sort it out by, as Lord Judge argued, stating that Parliament is ultimately a sovereign body and that the Supreme Court in this country is indeed the British supreme court. Only by having a measure like this can we sort that out.

Sir Richard Shepherd (Aldridge-Brownhills) (Con): I am very grateful to my hon. Friend, who mentioned our colleague the hon. Member for Esher and Walton. Our course has been different historically. In the Somerset case in the second half of the 18th century, a slave had escaped and arrived in London and with the help of, I think, the Quakers, made an appearance in front of the courts. It was held that within our jurisdiction in this country he was entitled to the protection of the law. Somerset was given habeas corpus although he was not a citizen of this country and merely a slave who was passing through this country. That was our tradition, you know.

Mr Brazier: That was indeed our tradition. It has of course been suspended many times, including for six years during the second world war when German citizens

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were locked up. There was a divided ruling in the House of Lords, as my hon. Friend will be well aware, on one such German citizen who brought a habeas corpus case.

My point is this: only by putting a measure through can we see whether or not it is possible to sort out this kind of scandalous situation while still allowing Strasbourg to be the supreme court. Can we test it? That is the only way. Personally I think we should do what Lord Judge recommends; we should pass an Act making it clear that the European Court of Human rights should not be our supreme court and that it is only there for persuasive purposes and that, ultimately, the Supreme Court in Britain is our supreme court and that Parliament is sovereign.

I want to touch for a couple of minutes on a subject that has not been discussed at all and is extremely relevant to my hon. Friend’s amendment, which is judicial activism. The legislation that followed the Human Rights Act gave huge powers of discretion to judges; in fact one of the most interesting comments coming out of the Court of Appeal ruling on 8 October 2013 was its comment in passing that the reference to exceptional circumstances in the rules—to which I objected when it went through—was consistent with the proportionality balancing exercise required by Strasbourg jurisprudence. In other words, basically it did not affect judicial discretion at all.

The fact is that individual judges—who have accepted so little guidance from Parliament or resolutions of the House of Commons in this matter—have, basically off their own backs, acted in extreme cases involving people guilty of the most revolting crimes and allowed an article 8 ruling to overrule that. That has happened even when the family connection here was pretty tenuous; in one case, the family connection was desperate to disassociate itself from the individual. That is a measure of the extent to which we are suffering from judicial activism among at least one portion of the judiciary. I want to see the constitutional side of this fixed and I want my hon. Friend’s amendment to be passed. I shall vote for it. I also believe that we will need to pass a measure to make it clear that the supreme court in this country is the British Supreme Court. But I suspect that we will still have a residual problem with the issue of judicial activism.

Let me end my speech by reminding the House of perhaps the most famous case of judicial activism within a common-law jurisdiction in modern history, the Dred Scott case of 1865. I remind those who talk about the rule of law that had President Lincoln not stood up to the Supreme Court in America—had he not said “I was elected as President on this mandate: to prevent the spread of slavery into new states”, and brushed away the court’s finding—there would have been no civil war between 1861 and 1865, and there would have been no end to slavery in America at that stage. I think that most people believe that what happened was right.

Frank Dobson: I shall try to be very brief.

The Home Secretary’s proposal to extend her powers in respect of the removal of British citizenship from a limited and specific group of people must be assessed against the judgment that it is in the national interest or for the public good. I have to say that I have never heard

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anyone give a single example of Britain’s having benefited from some individual’s loss of British citizenship, and I think that it behoves the Home Office, and possibly the Foreign Office, to find out whether there actually have been any such benefits, because there are certainly disbenefits. Harm is done, or can be done, when someone loses British citizenship, and I do not mean that harm is done to the person who loses his citizenship. I mean that harm is done to other people—to the rest of us.

In my constituency, a young Somali—I do not know whether he is a terrorist or not a terrorist—went to Somalia, got married and had children. He was going to come back to this country, for what purpose I know not, but when he went to Djibouti he was arrested. After his arrest, when he was being handed over to some Americans, he said “You cannot do that: I am a British citizen.” He was then told “You are not any more, because the Home Secretary has taken your citizenship away.” He ended up being kidnapped by the Americans, and is now facing a court in New York. If he has done something that merits his going before a court in New York and he has never previously been to America, he could presumably have been prosecuted here for the same offence.

Mark Lazarowicz (Edinburgh North and Leith) (Lab/Co-op): Under the current proposals, the person whose passport was removed would not necessarily appear in a court anywhere. The proposed measure gives the Secretary of State a very broad power when she considers it conducive to the public good to deprive someone of a passport because his or her conduct is

“seriously prejudicial to the vital interests”

of the United Kingdom. No actual crime is specified anywhere. Everyone has been talking about terrorists or other criminals, but the problem is that the proposed power is so broad.

Frank Dobson: I entirely agree. That is why I am doubtful about the capacity to take away people’s British citizenship.

There is a substantial Somali community in my constituency. Needless to say, it includes quite a few testosterone-exuding young men who are very upset about what is happening in Somalia, and who are dubious about what the British Government are or are not doing. However, a much bigger group of young men, and young women, have been working tremendously hard in trying to combat the extremist elements, such as people preaching hatred. Indeed, they have been very successful in doing so, and the Prime Minister himself has commended their effort and commitment. For instance, they have massively improved the performance of Somali young people in schools. One of the things that they were able to say when countering the arguments of the extremists who were trying to lead local young people astray was, “Always remember that you are a British citizen now: you are British, not Somali.”

3.30 pm

Since Mahdi Hashi lost his citizenship and was kidnapped by the Americans, the response of the extremists has been, “Oh yeah? You’re not really a British citizen. You’re only a British citizen on sufferance and the Home Secretary can take your citizenship away.” That has been very damaging to the people we are trying to

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encourage and has set back their efforts not just in my constituency, but in many other parts of the country where Somalis live.

I do not understand what benefits flow to Britain from taking away someone’s citizenship. Those benefits have never been specified by anybody. In the case of Mahdi Hashi, a large number of harms have been done, not just to him and his family—I do not know what citizenship his child now has—but to the rest of us who are trying to counter extremism.

Mr Robert Buckland (South Swindon) (Con): In welcoming the underlying principles of the Bill, I think that it is important to remind the House that deportation is not a punishment in the legal sense. When somebody commits a criminal offence and is convicted, the punishment is the sentence. Deportation is a function of the Home Office and the UK Border Agency in exercising their powers in relation to nationality and the status of individuals within the country. It is important that we make that distinction, artificial though it may seem, to ensure that we have a deeper understanding of what deportation should be about. I make no apology for the fact that if people commit serious offences, consequences flow from that. When the offence is serious enough, the consequences should include deportation.

I welcome the UK Borders Act 2007, which was introduced by the previous Government. That Act changed the function of the criminal courts in the regime. Previously, a Crown court judge had to consider whether the continuing presence of an individual in the country was to the country’s detriment and make a recommendation on deportation. That was a cumbersome regime that did not lead to the results that the public wanted. Sensibly, the 2007 Act brought in the rule that deportation will be automatic for those who are sentenced to terms of imprisonment of longer than 12 months.

I support the clauses of the Bill that amend the 2007 Act to bring primary legislation into line with the immigration rules of 2012, which in my opinion have significantly reduced the margin of discretion that is open to judges, although it is possible to challenge the rules themselves, as we have seen. I think that those clauses will answer many of the legitimate questions that our constituents pose to us on the effectiveness of the deportation regime.

Let us not forget that, however many laws we pass and however much the debate rages over immigration law, the enforcement of that law is the most important thing in the eyes of the public. If the British public believe that our immigration system works, that wrongdoers are no longer in the country and that the deportation system is effective, faith will be restored. We cannot get away from that essential fact.

Of course, we are here to talk about legislation, so I will discuss new clause 15 and amendment 62, which were tabled by my hon. Friend the Member for Esher and Walton (Mr Raab). I know that he has taken great care in considering these issues and we have discussed them face-to-face many times. It is in a spirit of genuine concern that he has tabled new clause 15. However, there are serious questions that we have to ask about it. With respect to him, I think that he is in error when he suggests that the compatibility of the new clause with the convention would not be challenged. I think that it would be subject to such challenge, and I would go

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further and suggest that rule 39 would apply and that injunctive relief would be available. Let us imagine the consequences of that. If rule 39 injunctive relief were successfully obtained, that would gum up the works not just for one deportation but for thousands in the years to come.

Dr Huppert: The hon. Gentleman always stands up for the rule of law, and I entirely agree with him that the new clause would not be legal. Will he therefore join us in opposing it?

Mr Buckland: I think that the new clause is capable of achieving perfection, perhaps in the other place. As it stands, however, it does not work in terms of what it sets out to do. I am going to consider my position before deciding whether to abstain or to oppose it today.

I have looked carefully at the exceptions set out in section 33 of the UK Borders Act 2007, and at the discretion that the Home Secretary is given under the legislation. That discretion is based on a series of factual events such as the existence of hospital orders or other Mental Health Act dispositions. The exception proposed in new clause 11 gives a subjective discretion that does not sit well with the wording of the UK Borders Act. Once we opened the door to that kind of subjective discretion, what would be the difference between what the new clause hopes to achieve and the wording of the Bill in relation to the discretion that is to be given to the courts? In a nutshell, the Bill’s existing provisions, as amended, already do the job of dealing with serious offending and of making a proper distinction between offences for which sentences of more than four years’ imprisonment are imposed, and those for which under four years are imposed. There is a clear logic to the provisions, and the new clause is therefore unnecessary. It would create the risk of upsetting the entire apple cart when it comes to the important work of deporting serious criminals from our country.

John McDonnell (Hayes and Harlington) (Lab): Mr Deputy Speaker, you have rightly asked us to curtail our speeches and I shall try to complete mine in four minutes, but I am seething with anger. The Bill affects many of my constituents, and this is the only time for Back-Bench MPs to introduce or speak to amendments on Report. I am being denied that opportunity because most of my amendments will not be reached today.

I will speak to only one amendment in the group, amendment 79, which deals with the restriction of bail for detainees. I have 1,000 detainees in my constituency, at the Harmondsworth and Colnbrook detention centres. The Bill will deny many of them the right to apply for bail in the 14 days before their removal. I deal with detainees in my office almost every working day of my life. Large numbers of them are parents and, in those last 14 days, they want to get bail so that they can see their children. Others need bail because they are sick or suffering from a mental illness. The Bill will deny them that opportunity, on the approval of the Secretary of State.

The Bill will also mean that a person will be unable to apply for bail if they have already applied 28 days beforehand. That means that there could be new set directions under the first rule, and a rolling programme

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could mean that people never have the opportunity to apply for bail. Some might think that spending 28 days in a detention centre before someone can apply for bail is not that significant. I suggest that they visit a detention centre. I also suggest that they read the report on visits to the Harmondsworth detention centre during 2013. It sets out the number of people who doctors had determined were mentally ill, had ill health effects from their experiences or had been subjected to torture. Of the 125 being held under rule 35, only 12 were released.

I also ask hon. Members to read the report on mental health in detention centres that was published in January this year by Medical Justice. It states:

“There is a crisis of mental health in detention, as demonstrated by the many Court cases…Evidence and experience shows that mental illness is the greatest health issue for detainees. The safeguards to prevent the detention of those with serious mental illness are not working. The rate of mental illness is already high in those who are subject to detention, in part due to the stresses in their life journey to that time. Detention serves to increase that mental illness and distress”.

The reasons for that distress are clear. When someone is detained, they may be told that they cannot appeal for 28 days, then they may lose that appeal and bail as well. There then follows another 28 days, and so on. The detainee never knows when they will be released. That is why detention impacts on people’s mental health.

The report from the chief inspector of prisons came out earlier this month. It explains what is happening in detention centres. There is an increase in the number of self-harm incidents. A significant number of detainees are refusing to accept food. In Harmondsworth, we now have regular hunger strikes. The place has been burned down twice as a result of detainees’ anger at being detained. The report said:

“Disturbingly, a lack of intelligent individual risk assessment has meant that most detainees were handcuffed on escort… and on at least two occasions, elderly, vulnerable and incapacitated detainees, one of whom was terminally ill, were handcuffed in an unacceptable manner”.

These men were so ill that

“one man died shortly after his handcuffs were removed and the other, an 84-year-old man, died while still in restraints.”

Those were

“shocking cases where a sense of humanity was lost.”

That is what Her Majesty’s inspector of prisons said four weeks ago.

It is unacceptable to detain people on such a scale. Harmondsworth has gone from a row of Nissen huts where no more than 30 people were detained to effectively two prisons with 1,000 detainees. To deny people the right to bail in the way in which the Bill proposes takes away hope, and increases the pressure and mental stress and the number of mental illnesses. At the same time, it brings about this level of abuse and inhumanity. I urge Members to be careful. This Bill will increase harm and be counter-productive. It will deny justice to the most vulnerable people in our society. It is unnecessary. All people want is the right for their case to be heard in the normal manner, as we would all expect it to be. They are crying out for justice.

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Mr Cox: I intend to address new clause 15. It is an iron and inescapable consequence of new clause 15 that it would put this House and the Government in complete breach of their obligations under the European convention on human rights. My hon. Friend the Member for Esher and Walton (Mr Raab) has not sought to deny that, but seeks to suggest that whatever this House passes it would, none the less, be lawful as a question of domestic law—of course, in that respect he is right. The question is whether we should knowingly legislate in direct and conscious breach of our international law obligations. In my judgment that is not consistent with the dignity of this House. The right way to approach an international obligation with which we have a legitimate dispute is to take an axe to the root cause of the problem, and not continually to worry away like a dog gnawing at its own tail in frustration at the problem. The root of the problem lies in our adherence to the convention, and we cannot seek to avoid it or to play fast and loose with it in the way that new clause 15 does. In considering their votes in relation to new clause 15, I urge my hon. Friends to ask themselves whether it is consistent with the dignity of this House to legislate consciously and knowingly in contravention of obligations that we have solemnly undertaken.

If I thought that my hon. Friend’s clause would practically have a benefit that I could measure and see as rational and logical and likely to achieve the cause that he and I both support, which is a radical revision of our relationship with the convention, then I might indeed, even then, consider supporting it, but it will not work. It is doomed to fail, as inevitably it will when it reaches the Strasbourg Court. We cannot exclude from the operation of the entire convention, with the exception of two articles, the actions of the Secretary of State, who is a public authority. Nothing could be more clearly in direct contravention of our obligations than to say that she may act in violation of a human right. Of course, the courts in this country will declare it to be incompatible and the courts in Strasbourg, armed with that declaration of incompatibility, will unquestionably also declare it to be incompatible and in breach of our obligations.

What is the answer? The answer is that devised by my right hon. Friend the Secretary of State: a careful, measured, balanced set of provisions that might just—although I have my reservations even about them—escape the scrutiny of the European Court of Human Rights. In doing so, they would achieve the end that each and every one of my colleagues on the Conservative Benches wishes to see achieved, which is that these criminals are sent home rather than finding a ready resort in the Court of Strasbourg as they would under the new clause proposed by my hon. Friend the Member for Esher and Walton, under which the statute would be struck down and the individual cases would eventually have to be reviewed by the domestic courts.

My hon. Friend’s cause is noble and valiant, but doomed, and I urge my hon. Friends, while approving the motivation behind his new clause, to vote against it.

3.45 pm

Keith Vaz: It is a pleasure to follow the hon. and learned Member for Torridge and West Devon (Mr Cox). I feel as though I am in the middle of an application for judicial review rather than discussing the politics of this

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country. I take a different view from him. When I came into the Chamber, I would have supported what he said. However, I was very impressed by the speech made by the hon. Member for Esher and Walton (Mr Raab) and I will support new clause 15 if he moves it. It is compatible with what the Select Committee on Home Affairs has been saying for a number of years. We hold the Government to account every three months on the number of foreign prisoners that they manage to remove from this country and every month they produce figures for the Committee. If the new clause is a way of ensuring that that happens on a more regular basis, I will certainly support it.

As far as new clause 18 is concerned, I was also impressed by the speech made by the hon. Member for Brent Central (Sarah Teather), who has just as big an immigration case load as I have. The Home Secretary is right: previous Home Secretaries have sought to remove citizenship as a way of punishing those who have broken our laws. Jacqui Smith certainly sought to do that in the al-Jedda case. She lost when it went before the courts, and I understand that it is still before the courts as there is an appeal. In that case, the court determined that there was a hope that taking away British citizenship would mean that al-Jedda would be able to get Iraqi citizenship. The Secretary of State told the House today that she will take away citizenship, leaving people stateless without a way out of the country—[Interruption.] She did not tell the House how she would get a stateless person to leave the country. They would require a passport from another country or a travelling document and neither are on offer when citizenship has been taken away.

I am very impressed by how the Home Secretary delivers her speeches and statements in the House, but I thought there was a slight reluctance today to put her case. Yes, she spoke for an hour and a half and took a lot of interventions but I am concerned that the measure has not been thought through. If there was a way out and we knew how a stateless person would leave the country, I would certainly support her proposals in new clause 18, but this is a work in progress. There is no final determination on it.

I put to the Secretary of State the one case about which the Committee was concerned when she gave evidence to us on 16 December—that is, the case of Mohammed Ahmed Mohamed. He did not want to come back to the United Kingdom; he wanted to stay in Somaliland. In evidence to the Committee, both the Secretary of State and Charles Farr said that there was an obligation to bring him back to the United Kingdom. He was subject to a terrorism prevention and investigation measure, but he then put on his famous burqa and is now somewhere in the country.

I understand that the proposal would affect people in and outside the country and I know that it would affect only very few people. I take the Home Secretary at her word, but if this measure was passed today would it have affected the Mohammed Ahmed Mohamed case? Would he have been left in Somaliland, stateless? Would there have been no obligation, therefore, to bring him back? I will support the hon. Member for Brent Central in opposing new clause 18. I hope that by the time it gets to the other place there will be a plan that will finally determine what will happen to people who become stateless.

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Dr Huppert: It is a pleasure as ever to follow the Chair of the Select Committee. I welcome the comments of the Home Secretary on my amendment 74 on ending child detention. The Government were right to do it a few years ago and they are now absolutely right to write it into legislation. It was profoundly wrong that under the previous Government thousands upon thousands of children were detained purely for immigration purposes—7,075 children in five years, and not just for a day or so but in one case as long as 190 days. That was a disgrace to this country and I am delighted that the Government ended it and have made sure that, whatever the next Government and the one after that, they will not be able to reintroduce it. It was a great shame that the Labour Front-Bench team refused to be as pleased as I was that this had been written into law, and I look forward to the legislation in the Lords reflecting Government policy. That is excellent.

I listened carefully to what the Home Secretary said on statelessness. I thank her for coming to talk to me and many of my colleagues about it; we had many questions. I have a lot of sympathy with the problem that she faces. There are instances in which citizenship should be taken away, and one is where fraud has taken place. I have no problem with someone who has acquired British citizenship by fraud not being allowed to keep it. That is easy. There are then issues about dual nationals—again, that is an easier case—and mono nationals who are in the UK. I share the concerns of the right hon. Member for Leicester East (Keith Vaz) and many others about the problems of taking citizenship away from someone who is in this country. The Home Secretary hopes that they will be able to acquire citizenship of another country, and in some cases that may be possible, in which case they would not be stateless, but we cannot be sure.

It seems to me that the country that may be able to give someone citizenship may be less keen to do so when we have just ruled that they are a danger to this country. They would be far more reluctant in that situation. We would certainly be much less keen to grant citizenship to someone who had just been deprived of citizenship of another country. There is then the question of what happens to that person. The Home Office advice about people who are stateless is that they can have two and a half years leave to remain and can then apply for a further two and a half years, after which they get indefinite leave to remain. Are we saying that we will grant people indefinite leave to remain while they cannot leave the country? Do we really want people who are so dangerous, who have been involved in such awful gang behaviour, to be trapped inside this country? I find that deeply alarming.

I do not like the idea of creating two-tier citizenship. So while I respect what the Home Secretary is trying to do, I will not support the new clause; I will vote against it.

I will not talk in great detail about the other amendments that I and my hon. Friend the Member for Brent Central (Sarah Teather) tabled about the interests of children except to say that it is odd that, in a time of austerity when we are trying to save money, we still spend a huge amount detaining people for a long time who will not be able to get out of the country in the end.

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It is costing us millions and millions of pounds and it seems to me that this is a saving that the Home Office should be keen to make. I hope that it will.

In the last minutes remaining, let me turn to the new clause tabled by the hon. Member for Esher and Walton (Mr Raab), who spoke, as ever, extremely well. I agree with what the Home Secretary said about his new clause. It is clear that it would be illegal and would undermine what we are trying to achieve. She argued, and I see no reason to disagree, that it would weaken deportation. My hon. Friend spoke eloquently about it, saying that it was phenomenal how far it ran against the interests of children. It is not something that I or that Liberal Democrats can support. All of us will vote against the proposal. We will stand up for the Government’s original proposal on this issue whether or not other Government Members do. I hope that hon. Members such as the hon. and learned Member for Torridge and West Devon (Mr Cox) will persuade many of their colleagues to stand up for the Government on this issue and vote against the new clause. I hope that he will be joined by colleagues in the Labour party; I believe that they have now finally settled their position. I look forward to the new clause being comfortably defeated.

Caroline Lucas (Brighton, Pavilion) (Green) rose—

Mr Deputy Speaker (Mr Lindsay Hoyle): For two minutes only, I call Caroline Lucas.

Caroline Lucas: Thank you, Mr Deputy Speaker.

We have heard thoughtful and powerful speeches from hon. Members on both sides of the House, and I want to link my views with those of the hon. Member for Brent Central (Sarah Teather), who made a compelling and well-informed case about the cruel, counter-productive and ill thought out nature of the Bill. I also associate myself with the views of the hon. Member for Perth and North Perthshire (Pete Wishart), who spoke with his customary eloquence and reminded us that we should be under no illusion that this miserable Bill has very little to do with national security, but everything to do with out-toughing UKIP. No one would argue that our immigration system does not need fixing or that it is not blighted by inefficiency and error, yet rather than taking positive steps to fix the problems, the Government have brought forward proposals that will drive standards down, not up.

All the amendments in the group that I support would make the immigration system fairer and more accountable, such as amendment 1, which would delete clause 11. It is important that we support that amendment because the latest figures reveal that 32% of deportation decisions and 49% of entry-clearance applications were successfully appealed last year, yet the Government’s depressing response to that large margin of error is not to try to improve the quality of decision making, but to reduce the opportunities for challenge by slashing the scope for appeal.

Amendment 79 was tabled by the hon. Member for Hayes and Harlington (John McDonnell), who spoke movingly about it, and co-signed by the hon. Member for Islington North (Jeremy Corbyn). The basis of clause 3 is utterly flawed, given that it sets out the idea

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that directions for removal within 14 days are somehow sufficient grounds to assume that bail should not be granted. On any common-sense analysis, there are factors that bluntly challenge that assumption. Plenty of people suffering from psychological or physical illnesses, or who have been bereaved or have caring responsibilities, should not be detained, but will not be able properly to challenge that detention.

I support amendment 60, which would retain the status quo on the use of force, not least because there are serious gaps in the training provided on the exercise of force, especially regarding the use of restraint techniques, by immigration officers and contractors. That is just one reason why it is completely unjustifiable that the Government are extending the use of force without any reference to the type of power exercised and the necessity of that force, and without parliamentary scrutiny.

I get the sense that you would like me to conclude my speech, Mr Deputy Speaker, so I shall oblige, but let me simply say that this is a miserable Bill and that I hope the House will take every opportunity to vote against it.

Mrs May: With the leave of the House, I shall respond to some of the points that have been raised. I do not agree with the manuscript amendments to new clause 18 that were tabled by the right hon. Member for Delyn (Mr Hanson). It is right for the Secretary of State, as someone who is democratically accountable, to take the initial decision, but I confirm that there will be a full right of appeal, so a judicial process will apply. I accept that the Opposition have concerns about the new clause, so I will be happy for the Minister for Immigration to sit down with the right hon. Gentleman and go through his concerns before the provision is considered by the other place. I hope that that will be of benefit to him and that it brings him some comfort.

I stress again that I strongly support the intention behind new clause 15, which was tabled by my hon. Friend the Member for Esher and Walton (Mr Raab). Everyone in the House wants to ensure that we can deport more foreign criminals, but it is absolutely clear that the provision, as drafted, is incompatible with the European convention on human rights. Crucially, it would weaken at least two aspects of the Bill, given that it does not deal with persistent offenders who have been subject to sentences of less than 12 months. I am also worried that it provides for an exception to apply when a child has not lived in the country for a significant time and does not have a relationship with their parent. Our Bill requires that a child must be British, that they must have lived in the country for a particular period of time, and that there must be a genuine and subsisting relationship with the child. Given its drafting, the new clause would cause problems in the sort of cases that the right hon. Member for Blackburn (Mr Straw) talked about.

There are also concerns that the drafting of the new clause would lead to a number of rule 39 cases. However, I recognise that there are issues—the right hon. Gentleman said this—with some of the language in the new clause, which we can consider and come back to. As drafted, I do not think that it is appropriate, but Conservative Ministers will abstain from the vote.

I said that I would mention rule 39, on which I intervened earlier. The reasons why I am concerned that the amendment would lead to fewer deportations are: first, because the language in the amendment in relation

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to children would lead to significant litigation; and secondly, because although article 8, under the current system, does not lead to rule 39 orders—

4 pm

Debate interrupted (Programme Order, 22 October 2013).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.

Question agreed to.

New clause 11 accordingly read a Second time, and added to the Bill.

The Deputy Speaker then put forthwith the Questions necessary for the disposal of business to be concluded at that time (Standing Order No. 83E).

New Clause 12

Power to charge fees for attendance services in particular cases

‘(1) This section applies where a person exercises a function in connection with immigration or nationality in respect of which a fee is chargeable by virtue of a fees order (a “chargeable function”) in a particular case and—

(a) in doing so attends at a place outside the United Kingdom, and time, agreed with a person (“the client”), and

(b) does so at the request of the client.

It is immaterial whether or not the client is a person in respect of whom the chargeable function is exercised.

(2) In this section “attendance service” means the service described in subsection (1) except so far as it consists of the exercise of a chargeable function.

(3) The following are to be disregarded in determining whether a fee is chargeable in respect of a function by virtue of a fees order—

(a) any exception provided for by a fees order or fees regulations;

(b) any power so provided to waive or refund a fee.

(4) The person exercising the chargeable function may charge the client such fee for the purposes of recovering the costs of providing the attendance service as the person may determine.

(5) Fees paid to the Secretary of State by virtue of this section must be paid into the Consolidated Fund.

(6) A fee payable by virtue of this section may be recovered as a debt due to the Secretary of State.

(7) This section is without prejudice to—

(a) section 60;

(b) section 1 of the Consular Fees Act 1980 (fees for consular acts etc.);

(c) section 102 of the Finance (No. 2) Act 1987 (government fees and charges), or

(d) any other power to charge a fee.’.

New Clause 18

Deprivation of citizenship: conduct seriously prejudicial to vital interests of the UK

‘(1) In section 40 of the British Nationality Act 1981 (deprivation of citizenship), after subsection (4) insert—

“(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—

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(a) the citizenship status results from the person’s naturalisation, and

(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory.”

(2) In deciding whether to make an order under subsection (2) of section 40 of the British Nationality Act 1981 in a case which falls within subsection (4A) of that Act, the Secretary of State may take account of the manner in which a person conducted him or herself before this section came into force.’.

Brought up.

Dr Huppert: On a point of order, Mr Deputy Speaker—

Mr Deputy Speaker (Mr Lindsay Hoyle): Order. I am sorry, but both new clauses, which are Government new clauses, go together. If the hon. Gentleman wishes to vote against, he has to vote against them together.

Question put (single Question on new clauses moved by a Minister of the Crown), That new clauses 12 and 18 be added to the Bill.—(Mrs May.)