1Introduction
The legislative and litigation context
1.British nationality law previously only granted automatic British nationality by descent to children born in wedlock to British fathers. This draft Remedial Order concerns the right of a child of a British parent to become a British citizen by descent from their British parent—irrespective of whether it is their mother or their father who is British; and irrespective of whether their parents are married or not.
2.Previous efforts have been made to address the historic discrimination in British nationality law—section 4C of the British Nationality Act 1981 (BNA) was introduced to address discrimination against people whose mothers, rather than their fathers, were British citizens and sections 4F-4I BNA were introduced to address discrimination against people whose parents were not married. However, some anomalies in treatment remain meaning that the discrimination persists. The most significant is the requirement for these children to prove good character (a requirement that did not apply to those acquiring British nationality by descent as a legitimate child of a British father).
3.The Courts consequently made a Declaration of Incompatibility in relation to these provisions in the cases of Johnson3 and David Fenton Bangs,4 finding that the application of the good character requirement to children whose mother was British, or whose parents were unmarried, was discriminatory and contrary to their human rights under the Human Rights Act 1998 (HRA) and the European Convention on Human Rights 1950 (ECHR).
The role of the Joint Committee on Human Rights
4.To seek to remedy this incompatibility identified by the Courts, the Government laid a proposal for a British Nationality Act 1981 (Remedial) Order 2018 together with the required information on 15 March 2018. The Committee considered this matter in its Report “Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018”5 (referred to throughout this report as the “First Report”).
5.A revised draft British Nationality Act 1981 (Remedial) Order 2019 was subsequently laid before Parliament on 2 May 2019.6 This was accompanied by the Government’s Response7 to the Committee’s earlier Report.
6.The Committee’s Standing Orders require us to report to each House—
- Whether the special attention of each House should be drawn to the draft Order on any of the grounds on which the Joint Committee on Statutory Instruments may so report in relation to most other statutory instruments; and
- Our recommendation whether the draft Order should be approved.8
7.We issued a call for evidence9 on the Government’s draft Order and received seven written submissions. We are grateful to all those who responded to our call for evidence or drew our attention to other relevant information. A list of those who contributed is included at the back of this Report and all written submissions we received can be found on our website.10 We note the issue raised that “good character” is not the only difference for those who have been discriminated against under the previous law. Such people also have to go through different processes, including the oath-swearing ceremony (and indeed having to pay a substantial fee).11 We also note the calls from those who are British Nationals (Overseas) who consider that the law should be changed so that those with British Nationality (Overseas) should be allowed to convert that nationality to British Citizenship.12
3 R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56. The Supreme Court found that the BNA was incompatible with Article 14 read with Article 8 of the ECHR in that it imposed a good character requirement on individuals who would, but for their parents’ marital status, have automatically acquired citizenship at birth.
4 R (on the application of David Fenton Bangs) v Secretary of State for the Home Department. A consent Order and accompanying Declaration of Incompatibility were made in the case of David Fenton Bangs, in relation to the application of the good character requirement to registration pursuant to section 4C of the BNA to individuals that would, had their British mother been able to pass on nationality in the same manner as a British father, have automatically acquired citizenship at birth.
5 Joint Committee on Human Rights, Fifth Report of Session 2017–19, Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018, HC 926 / HL Paper 146. A fuller explanation of the legislative and litigation history and context can be found in this Report, in particular its chapter 1.
7 Home Office, The Government Response to the fifth report from the Joint Committee on Human Rights, Session 2017–1 (HC 926, HL paper 146): Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018, January 2019
8 House of Commons, Standing Orders, Public Business 2017, HC 4, 152(B), and The Standing Orders of The House of Lords relating to Public Business 2016, HL Paper 3, 72(c)
9 Draft British Nationality Act 1981 (Remedial) Order 2019 – Terms of Reference
10 Joint Committee on Human Rights, Draft British Nationality Act 1981 (Remedial) Order 2019 - Publications
Published: 9 July 2019