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Earl Russell: The Minister is distinguishing between the case of citizenship acquired and citizenship by birth. However, does not subsection (3) of this clause provide the basis for a perfectly logical distinction?
Lord Filkin: If the noble Earl will bear with me, I shall seek to develop my argument as I go through my response.
The present law discriminates against those who have acquired citizenship by registration or naturalisation. As such, it tends to devalue these processes by marking out people who became citizens in either of these ways as, potentially, second-class citizens compared with those who have acquired it by birth. It enables deprivation of citizenship to be applied as an additional penalty to that provided by the criminal law for any misdemeanour that has resulted in a sentence of imprisonment, in any country, of 12 months or more.
In the Government's view, that is out of step with the practice in those countries that have ratified the European Convention on Nationality of 1997. It seems to us to be an entirely inappropriate response to acts of a general criminal nature, however serious. Finally, it imposes a check on the Secretary of State's power to deprive—the "conducive" test, the exact
nature of which has always been somewhat difficult to pin down. This uncertainty has acted as a disincentive to the commencement of deprivation proceedings in the past.For those general reasons, the Government believe that it is time for change. We see no good reason for maintaining the present distinction between natural-born and naturalised citizens, especially where the actions of the person concerned have caused significant harm to the vital interests of the United Kingdom, or a British Overseas Territory, and where the removal of British nationality seemed likely to prevent or deter the individual from engaging in such activity in the future.
We do not consider that deprivation—
The Countess of Mar: The terminology in the Bill is "British citizenship", but the Minister has just referred to "British nationality". I believe that the noble Earl, Lord Russell, made the distinction between the two. Can the noble Lord make it clear whether he is speaking about the removal of British nationality or of British citizenship?
Lord Filkin: It would probably take several hours to give the noble Countess a full legal answer on the exact distinction between "nationality" and "citizenship". For most of the purposes of this clause about which we are talking, I believe that there is no substantial difference. However, if she wishes me to do so, I think the best way to answer this question would be to write to the noble Countess subsequently in more detail.
We do not consider that deprivation of citizenship should in future be applied as a penalty for acts of a general criminal nature. We shall continue to regard deprivation as a serious step, albeit one that we are prepared to contemplate in any case where someone has been granted citizenship while concealing a material fact—such as an involvement in war crimes, in terrorism, or where, as a British citizen, the person has conducted himself in a manner that is seriously prejudicial to the vital interests of the United Kingdom, or of an British Overseas Territory.
I turn now to some of the more specific issues. I shall do my best to respond to all the points that have been raised, but there were many of them. It may require a period of reflection to do them all justice. First, there is the question of what Clause 4 is intended to achieve. As the Committee knows, Clause 4 will replace existing Section 40. It has two main effects. First, liability to deprivation is extended to all British nationals, irrespective of the means by which that nationality was acquired.
The removal of the distinction is justified because the issue is whether the actions concerned cause significant harm to the vital interests of the United Kingdom, irrespective of the route by which the citizen acquired nationality. That seems to us to be right and clear. It is the nature of the threat created by the citizen's actions that should determine whether there should be deprivation, not the mechanisms by which they got citizenship.
Several Members of the Committee asked whether it was right that a person could be deprived of citizenship on the subjective view of the Secretary of State. It is a tough issue, and I make no bones about that. The idea that it is appropriate for the deprivation of nationality to be based on the view of the Secretary of State has a long history. The current provision, in the British Nationality Act 1981, refers to the need for the Secretary of State to be satisfied of certain matters before a deprivation order will be made. That follows on from similar provisions in the British Nationality Act 1948 and the British Nationality and Status of Aliens Act 1914.
It is entirely appropriate that the Secretary of State should be able to act on his view that a particular set of circumstances amounted to, for example, conduct seriously prejudicial to the vital interests of the UK or of a British Overseas Territory. There is room for a good deal of argument on the issues, but it would place an unreasonable burden on the Secretary of State if he were unable to proceed unless absolutely certain in all respects. In some cases, the individual may have fled the country after committing a terrorist act. The certainty of conviction—using conviction as a route to certainty—would not be attainable. It would be wrong to be unable to act in such circumstances.
The Court of Appeal, endorsed by the House of Lords, has stated that, in matters relating to national security, the Secretary of State is undoubtedly in the best position to judge what national security requires. The relevant case is Secretary of State for the Home Department v. Shafiq Ur Rehman from 2001. The fact that the Bill would facilitate deprivation of nationality on the subjective view of the Secretary of State does not mean that the power would be exercised arbitrarily.
The Secretary of State is compelled by new Section 45 to give written reasons for the intended deprivation order. The person against whom it was proposed to make such an order would be free on appeal to raise any issue bearing on the legality or the merits of the decision. The Secretary of State would be prevented from making a deprivation order until such time as the appeal had been determined finally or, if there were no appeal, until such time as the deadline for bringing an appeal had passed. That requirement, coupled with proposed Section 45B, which requires that reasons must be given with the notice of the decision, provides adequate safeguards against arbitrary deprivation.
I was also asked whether the words "seriously prejudicial" were vague.
Baroness Whitaker: Before my noble friend the Minister concludes the point about deprivation, could he clarify the force of Clause 7? As I read the Bill, the requirement not to give reasons and the absence of a right of appeal will now disappear. Does Clause 7 mean that the Secretary of State is under a requirement to give reasons for a discretionary decision and that there is a right of appeal in a case of deprivation of nationality?
Lord Filkin: My noble friend is exactly correct in both respects.
Lord Lester of Herne Hill: Can the Minister confirm that the position at the moment is that someone who is born in this country and acquires citizenship by birth has a right to citizenship and to a passport? The big change that is being made, in the guise of equality of misery or non-discrimination, is that the Bill takes that right away from people—such as most of us here—who were born here. They will be treated with wide subjective discretion—in the same way as people who acquire their citizenship by naturalisation—rather than as having an entitlement. Is that right?
Lord Filkin: I would like a little more space to examine the noble Lord's words more carefully, but I can say that, in essence, he is right, for the reasons that I gave. Because we think that there is no fundamental reason for treating British citizens differently, we believe that it is right that citizens—regardless of how they came to their citizenship—should be open to the possibility of deprivation in certain defined circumstances, such as their having acted treasonably against the state.
I do not think that the noble Lord asked for particular detail about passports. I shall not give any further detail on that.
Lord Lester of Herne Hill: I would be grateful for that at some point. As the Minister knows, many groups, including Justice, the NGO, have campaigned for years for the right to a passport, knowing that previous governments censored the right to travel by arbitrarily taking away passports. That happened during the Korean War, for example. It would be helpful to know the consequences for the right to a passport.
Lord Filkin: I shall, as far as I can, address that issue now, if that would be helpful. The general position is that there is not, as some believe, any right to a United Kingdom passport or to British consular protection; such things are better described as privileges. United Kingdom passports are issued at the discretion of the Home Secretary, exercising the royal prerogative. In practice, refusal is limited to people who have no claim to British nationality; minors whose journey is known to be contrary to a court order, for example; persons for whose arrest a warrant has been issued in the UK; persons repatriated at public expense who have not repaid the debt; or, in rare cases, persons in respect of whom the issuing of a passport would be contrary to the public interest for some other reason. That information may be of some interest, even if it is slightly tangential to the thrust of the noble Lord's question.
I think that I have dealt with the question of why we felt that issues of a general criminal nature did not go to the heart of citizenship, regardless of how a person had achieved that citizenship. I was also asked about vital interests. Of course, that includes national security, but it also covers economic matters, as well as
the political and military infrastructure of our society. After the events of 11th September, it is not difficult to see why that should be so; it touches on the general well-being of citizens.The Joint Committee on Human Rights raised several issues. We reflected seriously on those issues and will continue to do so as the Bill proceeds. We recognise that deprivation has serious consequences, including the loss of the right to a passport or, rather—I should qualify that—the loss of the privilege of a passport. It affects the ability to travel, removes British consular protection and bars the person from participation in the democratic process, a subject to which I shall return. However, it would not be a routine act; it would be confined to the most serious cases. There is a full right of appeal against any decision to remove nationality.
The ability to deprive on the grounds listed reflects the provisions made in that regard by the Council of Europe in the 1997 European Convention on Nationality. The noble Baroness, Lady Carnegy of Lour, is right to say that the changes are necessary if we wish to sign up to the policy of the Council of Europe in that respect. We do, but we think that the changes would be right even if there had not been a proposal from the Council of Europe on the table.
The Joint Committee on Human Rights and the noble Earl, Lord Russell, raised the issue of the burden of proof. I have explained the Government's view of the fact that it is the exclusive province of the Secretary of State to make the first decision that deprivation is justified. However, the question on appeal for, for example, obtaining citizenship by fraud, would be whether the citizenship was obtained by fraud rather than whether the Secretary of State was satisfied that it was. In that respect, we come to the same point.
I turn to what is implied by the powers. At present, the broad nature of the appeal right is implied by the lack of provision for certain matters to be excluded from consideration by the appellate body. We could have, although we did not, set that out clearly on the grounds on which an appeal will lie. That might have made it easier for the JCHR by confirming that the appeal right granted is a formal one. However, in our view the legal position was clear: it was implied that there was a broad right of appeal in this respect.
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