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Lord Dholakia: If the term citizenship is broader, is the Minister prepared to give a legal definition of it? Does he know whether there is a legal definition of nationality?
Lord Bassam of Brighton: Tempting though it is, I think that I would probably be a bit barmy to try to achieve that at the Dispatch Box on an afternoon when we are trying to examine some of the broader concepts in the legislation.
Lord Dholakia: I do not want to prolong the discussion. However, I do not think that the Minister would be barmy to try to do that, because there is no such legal definition. I do not think that he needs to worry about that. However, in relation to Clauses 1 and 2, I think that he should bear in mind that all naturalisation relates to the process of immigration and gaining nationality rather than to citizenship. Later, we shall discuss the issue of the deprivation of citizenship. How are we to deprive someone of something for which there is no legal formula or definition? I think that the Minister will find himself in considerable difficulty there. My advice is that, even at this late stage, he should take this back, consult civil servants and other authorities, and decide whether nationality is a better expression than citizenship. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 to 24 not moved.]
Viscount Bridgeman moved Amendment No. 25:
- Page 80, line 25, leave out "thinks it" and insert "is satisfied that it is"
The noble Viscount said: In moving this amendment, I should like also to speak to Amendments Nos. 26, 105, 106, 107, 112, 113 and 114.
Amendment No. 25 would replace the word "thinks" with the words "is satisfied". As noble Lords will be aware, the word "thinks" is one that is not often, if ever, used in legislation. This was the subject of some debate in another place in relation to Clause 4 which, as it was then drafted, proposed to allow the Secretary of State to remove someone's citizenship on that test. Members of another place were concerned during the debate in Standing Committee, on 30th April, at cols. 50 to 61 of the Official Report, that the word "thinks" set the threshold for deprivation of citizenship far too low. At that stage, the Minister's opinion was that there was no difference in law whatsoever between "thinks" and "is satisfied".
However, at Report stage, the Government amended the Bill to remove the offending word "thinks" from Clause 4, replacing it with the term "is satisfied".Amendments Nos. 25, 105 and 114 seek to replicate that piece of redrafting in other areas of the Bill where the Government have retained the word "thinks" in relation to the giving of support and assistance to asylum seekers. The Government have already accepted this point in relation to Clause 4, and I note that the noble Lord, Lord Filkin, has tabled Amendments Nos. 189 and 190 to Clause 65 to remove the phrase "the Secretary of State thinks".
Amendments Nos. 106, 107, 112 and 113, which are two pairs of alternatives, use the terms "believes" and "has reason to believe" rather than "thinks" or "is satisfied". I should be grateful if the Minister would explain whether the Government's view is that these forms of words differ in the legal meaning from "is satisfied", and particularly whether the words "reason to believe" put the test higher than "is satisfied". That was a matter of some controversy in another place, and it would be helpful if the Minister could clarify the issue. The point raised by these amendments might seem a small one, but it is none the less important to get the terms of the statute right so that the appropriate test is applied. I hope that the Minister will be able to accept some of the amendments in this group.
Amendment No. 26 is a probing amendment relating to the disapplication of the requirement to take part in the citizenship ceremony and make the citizenship oath and pledge. The Secretary of State will be empowered to do this,
- "because of the special circumstances of a case".
Lord Renton: My Lords, I wish to support the comments of my noble friend Lord Bridgeman in speaking to his two amendments. They are both drafting amendments, but we have to be very careful about our drafting. The expression "thinks" is too vague for these circumstances in which important matters are at issue. I think it much better that the Secretary of State should be "satisfied". It is best to leave out the expression,
- "because of the special circumstances of a case"
Earl Russell: I hope that the Minister will listen to the noble Lord, Lord Renton, whose expertise on
draftsmanship is well known. To put the point in a nutshell, if the Minister says that he "is satisfied that", he may in legal proceedings be asked why. If he says that he "thinks", and he is asked why, he can simply reply, "Because I do". The difference is important.
Lord Bassam of Brighton: During the time I have spent in your Lordships' House I have learnt to listen carefully to the noble Earl, Lord Russell, and also to the noble Lord, Lord Renton, particularly as regards drafting matters. I am sure that the noble Earl and the noble Lord will not be disappointed when I say that we shall of course consider carefully their comments on those matters.
I shall try to meet the points made by the noble Viscount, Lord Bridgeman. As has been said, the amendments seek to replace the use of the word "thinks" where it appears in Clauses 15 and 22 with a selection of alternatives: "has reason to believe", "believes", or "is satisfied". As I made plain, we understand the concern to be that using the word "thinks" would mean that there would be a less rigorous examination of the facts than would be the case if one of the alternative words or phrases were adopted. The use of the word "thinks" was part of a drive to encourage the greater use of plain English in law making. I realise that that is a rather bold claim. However, I always thought that your Lordships' House rather favoured that approach. That is our genuine intent.
We are content that there is no difference in substance between the various words and phrases in question. Therefore, from our perspective the amendments are unnecessary as the practical result is exactly the same—a subjective test. "Thinks", as with all of the three alternatives suggested, is a subjective test. Enforceable principles of administrative law import a requirement that the discretion be exercised reasonably. I am sure that the Committee will be aware that we brought forward amendments in another place in respect of Clause 4—as has already been mentioned—where particular concern was expressed at the use of the word "thinks" in respect of deprivation of citizenship. We were happy to try to allay those specific concerns, particularly in the context of ensuring consistency with the relevant parts of the British Nationality Act 1981.
This matter raises an interesting point. I emphasise that we do not accept that "thinks" involves a lesser examination of the facts than the other alternatives put forward. However, let us assume for a moment that we accepted that proposition. As regards Clauses 15 and 22, that would mean that the Secretary of State would be more rigorous in his assessment of who qualified for support with the consequence that fewer people might be eligible to be supported. I should be surprised if that was the intention behind the noble Viscount's amendments. I am not aware of any concerns that we have been supporting people who are not really destitute.
As I said, both "thinks" and "is satisfied that" are subjective and are legal equivalents.
Earl Russell: I am most grateful to the Minister for giving way. I do not think that the question concerns
rigour but rather reason. One may have reasons for giving or refusing support which may make one more generous as well as more rigorous.5.45 p.m.
Lord Bassam of Brighton: The noble Earl makes a fair point. Our argument is that to transpose one term for the other would have little effect on the provision in Schedule 1, which is sought to be amended by Amendment No. 25. However, the term "thinks" is consistent with the way other similar discretions are currently expressed in the British Nationality Act 1981. At present, the Secretary of State has discretion to waive certain naturalisation and registration requirements if the circumstances of a particular case demand it. We wish to ensure simply that the Secretary of State also has discretion to waive certain requirements in regard to citizenship ceremonies and the citizenship oath and pledge. The language of the discretionary provision set out in Schedule 1 of the BNA is consistent with that which already appears in other parts of that legislation.
I was asked a specific question on the use of the term,
- "special circumstances of a case".
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