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Viscount Bridgeman: I am grateful to the Minister for that comprehensive explanation of the arrangements. It is particularly useful always to have his experience of carrying them out. We are grateful that this matter has been put on the record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 52 to 55 not moved.]
Viscount Bridgeman moved Amendment No. 56:
- Page 83, line 31, leave out "may" and insert "shall"
The noble Viscount said: In moving Amendment No. 56, I shall speak also to Amendment No. 57. This follows on from the debate on the previous group of amendments. The Committee will see that paragraph 8 of the schedule enables the Secretary of State to make payments to local authorities in connection with the costs they incur in relation to citizenship ceremonies.
The paragraph uses the word "may" rather than "shall". Therefore, as the Secretary of State is not obliged to reimburse local authorities, I hope that the Minister can reassure the Committee that the Secretary of State will, as a matter of course, ensure that local authorities do not suffer any significant financial burdens as a result of conducting citizenship ceremonies. As I said during the previous debate, it may be that some local authorities face more costs than others in this respect simply because of their geographical position. I look forward to a positive response from the Minister such as he gave on the previous group of amendments.
Lord Bassam of Brighton: I have great respect for the spirit with which the amendment has been moved by the noble Viscount. I make plain by putting the matter on the record that it is not the Government's intention that local authorities should bear any of the financial burden of providing citizenship ceremonies.
As I made clear on the previous group of amendments, the cost of a standard citizenship ceremony will be met in its entirety by the applicant as part of a composite fee collected by the Home Office. It has been decided that the Home Office should pay the local authority a set fee—still to be agreed, I might add—for each applicant. The amendment therefore is not, strictly speaking, necessary.
The amendment may also limit the opportunity for concessional rates. That would be unfortunate. For example, married couples currently pay one joint fee if they apply for naturalisation at the same time. Similar concessional rates may be considered when the fee structures are considered.
With regard to Amendment No. 57, it is important that administrative costs are kept to a minimum and that this scheme is efficient in that regard. A complex system of individual fees would be cumbersome and inevitably would have to be passed on to the applicant.
It will also be open to the local authority to recover costs directly from the applicant for an enhanced ceremony, as I made clear earlier. As I also made clear, those enhanced ceremonies will be able to take place at venues other than—if you like—the bog-standard ones provided by local authorities.
The noble Viscount made a good point about there being a burden on specific authorities and that that would perhaps be a reflection of where people settle or choose to settle. However, because of the way in which this scheme is designed and will be introduced, there should not be an unnecessary burden placed upon the local authorities. Of course, we shall continue with the important dialogue with the service providers to ensure that that is the case.
Accurate forecasts of numbers and spread of applicants will enable local authorities to plan to comply with their proposed duty. We do not think that that should lead to any additional incurring of costs over and above the current operation of registration.
Viscount Bridgeman: The Minister once again has given a most helpful reply for the record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Deprivation of citizenship]:
Lord Dholakia moved Amendment No. 58:
- Page 2, line 43, at end insert "provided the citizenship was obtained by registration or naturalisation"
The noble Lord said: Amendment No. 58 relates to one of the most contentious clauses in the Bill. Clause 4(2) gives the Secretary of State power to deprive even UK-born nationals of UK citizenship, except where it leaves that person stateless. The proposed amendment ensures that such persons cannot be deprived of citizenship regardless of the statelessness issue.
The Government will no doubt say that the provision of not allowing someone to be made stateless addresses the issue, as most UK-born citizens will, if deprived of UK citizenship, be made stateless. The amendment seeks to change the deprivation of citizenship. We believe that the Bill gives the Secretary of State excessive powers. I hope that the Bill does not reflect what the Government plan to do.
We rely very much on briefs supplied to us by people qualified to comment on such issues. We received one such brief from the Immigration Law Practitioner's Association, in which Laurens Fransmann QC makes a strong case. He states:
- "The proposed new section 40(2) of the 1981 Act"—
- "provides a sweeping power to deprive a person of British nationality not just where that nationality was acquired by grant in response to an application but also where it was acquitted automatically by birth in the UK by descent. This draconian new power arises as presently drafted wherever the Secretary of State just 'thinks' that the person has done something 'seriously prejudicial to the vital interests' of the UK or an overseas territory, he may remove that person's citizenship. ILPA [the organisation] is concerned that these expressions are far too vague, that a
- requirement only to 'think' there is prejudice lays down an unacceptably low threshold for the Secretary of State to attain in invoking the power".
We know from a number of cases that have arisen in the past on other Bills that the "seriously prejudicial" test is poor and can cover a multitude of sins. The "vital interests of the United Kingdom" test is a general test which allows the Home Secretary vast discretion. We also know that under the Bill the Home Secretary will have the power to deprive even UK-born nationals of UK citizenship, except if that leaves a person stateless. We want to ensure that such people could not be deprived of citizenship, even if it would not render them stateless. This is a strong point because many written constitutions declare that citizenship is a fundamental identity right.
There is a real worry about the retrospective deprivation of citizenship—a point made to us by several organisations, including the Immigration Advisory Service, which deals with cases of that nature. We hope that the Minister will seriously consider this amendment to remove the draconian powers that the Home Secretary is expected to exercise. The clause is dangerous and I hope that the Minister has a better explanation of why it is required in the Bill. I beg to move.
6.30 p.m.
Lord Avebury: The power to deprive people of their British citizenship contained in Section 40 of the British Nationality Act 1981 applies solely to people who have acquired citizenship by registration or naturalisation, not to those who acquired it by birth. So we are considering a novel concept in the Bill. Someone who has been born and brought up here may nevertheless be deprived of his citizenship on the fiat of the Secretary of State on the grounds, as my noble friend said, that he has done something "seriously prejudicial". I do not know what that means—no doubt, the Minister will explain it to us later—but at present, the grounds on which someone can be deprived of the citizenship under Section 40 of the 1981 Act are precise. They are that he,
- "has shown himself by act or speech to be disloyal or disaffected towards Her Majesty . . . has, during any war in which Her Majesty was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was to his knowledge carried on in such a manner as to assist an enemy in that war . . . has, within the period of five years from the relevant date, been sentenced in any country for imprisonment for a term of not less than 12 months".
So we are being asked enormously to extend the powers of the Secretary of State: first, to cover everyone born in the United Kingdom; and, secondly, in relation to conduct of which people may or may not have been guilty. That will be entirely a matter for the Secretary of State. That is a draconian power, and I
hope that on reflection—the matter was raised in another place, so the Minister has had time to consider it—further and better advice will be given to the Minister and that he will accept the amendment.6.30 p.m.
Earl Russell: My Lords, the title of "worst clause in the Bill" is one for which there is considerable competition. I shall not claim it for this clause, but it must certainly be placed on any shortlist, not only for its content but for the extreme vagueness and gross uncertainty of its drafting. My noble friend Lord Greaves hit the nail on the head with precision earlier, when he asked the Minister what was the difference between citizenship and nationality. The Minister clearly did not have an answer. If we do not know what exactly what it is of which we are depriving people, that deprivation must be at least a little uncertain.
In Calvin's case of 1608, which began the right of reciprocal citizenship between England and Scotland, being a citizen was simply defined as being the King's subject. Is it proposed that Mr Blunkett, by personal order, is to have the power to stop people being the subjects of Queen Elizabeth II? Does he propose to exercise that power under the Royal prerogative? If so, we have a rather curious hybrid mixture of powers. Such a power has not before been used against people born in this country. A power that was not used against Guy Fawkes is one that we should indeed regard as draconian. Indeed, I can think only of one case in which the lesser penalty of banishment was inflicted. That was on Henry Bolingbroke, who later returned as King and may well have been responsible for the death of the person who inflicted the sentence on him. So the precedents are not good. The Secretary of State is to do this, which one would have thought might have been regarded as a judicial act, by order. This is not a mere statutory instrument; this is not the old, familiar argument. "By order", if I understand this correctly, appears to be a purely executive act.
That has a faint whiff about it of iudex in propria carta, judge in his own court. For anyone takes the trouble to supply the Minister with advice on that point, I know that in the opinion of Sir William Wade, there is a long line of authorities against that interpretation. Where the Secretary of State is thought to be the only person who can take the decision, he is not normally regarded as iudex in propria carta. But there is an older tradition to the contrary effect, from the days before Ministers accepted the rule of law as much as they have done in the recent past.
For example, there is a splendid case in the 15th century yearbook, which I think is aimed at the burgeoning jurisdiction of the Earl Marshal, which says that if the King, without due process, utters the words, "Off with his head!", an action of murder lies against the executioner. Indeed, there was a case under King John, shortly before Magna Carta, when the King deprived someone of his land and gave as his official reason for so doing, "Because we were cross with him!" That is all that the record states.
We do not want to go back in that direction. Were the courts to perceive the Secretary of State as heading back in that direction, they might be tempted to revert to the older line of precedent and treat such cases as examples of iudex in propria carta.
We do not know exactly of what the person will be deprived. The Joint Committee on Human Rights, which, together with the Select Committee on the Constitution, has been much concerned by the clause, raised the question of deprivation of benefit. If the clause gives that power, it is by a particularly back-door way. I should like to know now whether it does.
I should also like to know whether deprivation of citizenship deprives people of the right to vote. Imagining a Secretary of State from a party not presently represented with the power arbitrarily, by order, to deprive people of the right to vote, I view that power with some misgiving; or, to take the smooth with the rough—or the rough with the smooth, as the Home Office would probably see it—does the deprivation of citizenship have any effect on the obligation to pay taxes? The House should have answers to those questions before it happily agrees to put the clause on the statute book.
I know that there is a reservation that that may not in any case be done where it makes the person stateless, but that clause is, as they would have put it in the 17th century, felo de se; it is self-destructive. When the Secretary of State exercises that power, he presumably deprives the person of the right to have a passport. Without a passport, the person will probably be unable to travel. The Secretary of State cannot know when he exercises the power whether the person's other country will recognise his nationality, or whether it will regard the Secretary of State's decision as depriving it of the right to do so. So either that restriction prevents the power from being used at all or it is nugatory. Either it is useless or it is pernicious—a phrase that I hope is familiar in this Chamber.
We do not have much explanation as to the grounds on which the power will be exercised. It is to be exercised if
- "the person has done anything prejudicial to the vital interests of . . . the United Kingdom, or . . . a British overseas territory".
This is a very uncertain ground on which to decide whether someone is guilty of something. That clause and that Act have since been repealed, and this is one of the important reasons why. There is a right of
appeal and of judicial review, but only on the grounds of Wednesbury unreasonableness. That is both a steep and high fence. It reverses the burden of proof. It forces the appellant to prove that he has not done anything wrong rather than forcing the Secretary of State to prove that he has. That is back to front.It also authorises a case to be refused appeal if it concerns national security. I appreciate that there is a problem with giving national security evidence in public, but the noble Lord, Lord Brennan, who took a distinguished part in the proceedings, will remember that we considered the issue at great length on the Anti-terrorism, Crime and Security Bill and arrived at a remedy through a hearing in camera which did honour to all parties. I do not see why that remedy cannot be adopted here.
The appeal may be refused for any other matter "of a political kind"—because we were cross with the appellant? I fear that we are slowly on the way back to a world where the executive is freeing itself from legal control and working its way back to the world before Magna Carta. That is not something I would welcome.
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