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Lord Dholakia: Am I right in believing that according to the protection afforded under the Terrorism Act, those appearing before SIAC would be entitled to some of the sensitive information, whereas in this case anyone who appeals against the Home Secretary's decision will not be entitled to know about politically sensitive information at the appeal?
Lord Filkin: In circumstances in which the Secretary of State has exercised his power to move to deprive someone of citizenship on grounds of a threat to the state in some way, he would have to give reasons. He may give reasons on the generality to the effect that it is a threat to the security of the state, but say that he does not feel able to give the full details of those in public. In those circumstances, the person would have
the right of appeal to SIAC and, as I understand it, in the privacy of SIAC would be expected to give fuller details in camera so that the person would not be deprived of challenging the allegations made by the Secretary of State.
Lord Lester of Herne Hill: Is not the position that under the Bill the Minister is entitled not to make public the grounds relating to, for example, matters of a political kind? In new Section 40A(2) there is a right of appeal to the Special Immigration Appeals Commission, but the procedure in such an appeal—it caters for cases such as terrorism—is such that if the material is sensitive, it does not have to be disclosed to the appellant. It is disclosed instead to an independent special advocate, who may see the material but may not show it to the individual.
Let us suppose, for example, that I or Arthur Scargill were regarded as sufficient trouble-makers because we had seriously been damaging the economy by our strike or other militant action, and that there was a Home Secretary like those of the 1920s who chose to deprive me or the militant trade unionist of our citizenship. He could then refuse to disclose the material but would have to show it to a special advocate who could then do his best for me or the militant trade unionist. However, we would not be able to see it. Is not that the effect of applying the anti-terrorist procedure to a deprivation of citizenship in this wider area?
7.15 p.m.
Lord Filkin: I am sure that the noble Lord, Lord Lester, is correct in that respect and that I went further than was right.
The noble Earl, Lord Russell, also asked how, when citizenship is so vague, we can deprive someone of it. In relation to citizenship and deprivation, subsection (4) of new Section 41 defines citizenship status for the purposes of this provision on deprivation and sets out exactly who is liable to deprivation under the proposals. We do not believe that there is vagueness in this respect.
The noble Earl, Lord Russell, also asked about the loss of voting rights. It is a complicated matter. Few rights flow directly and exclusively from British citizenship. The right to vote depends partly on Commonwealth citizenship and partly on residence. For example, on a loss of British citizenship a dual British/Japanese citizen would lose the right to vote; a dual British/Jamaican citizen would not. The Bill changes nothing in that respect. Furthermore, taxes are liable irrespective of citizenship, as one can well understand and imagine.
The noble Earl also asked about the method or legal basis of deprivation. We do not believe it is important to exercise the prerogative. The Bill would give Ministers the statutory power to remove citizenship in closely defined circumstances. The order would merely
be the instrument of deprivation, as it has been in successive statutes since at least 1915. The deprivation decision is evidenced by the deprivation order.
Lord Avebury: I do not believe that right of abode was mentioned, but will someone coming from a country from which an entry certificate or visa is required automatically lose the right to live in the United Kingdom if he is deprived of his citizenship? How would he acquire a right of abode, if at all?
Lord Filkin: The deprivation of citizenship does not automatically mean that one has lost one's right to reside here. A separate action must be taken by the Secretary of State to deprive of residence and to deport the person. The two are separate actions.
The noble Earl, Lord Russell, suggested that the only appeal is a judicial review. We do not believe that that is the case. The appeal against deprivation is a full appeal on the merits. We believe that perhaps the JCHR does not have that clearly in sight or perhaps we have not made it as clear as we could have done.
The appellate body will be able not only to remove the legality of the Secretary of State's decision, but also to hear arguments at his discretion on whether or not the right to deprive should have been exercised differently. The Bill proposes no restrictions on the issues which might be raised in an appeal either to an adjudicator or, where that body has jurisdiction, to the Special Immigration Appeals Commission. The appellate body will be able to hear argument not only that the Secretary of State has failed to observe the statutory requirements, but also that his discretion whether to deprive should have been exercised differently.
The noble Lord, Lord Kingsland, raised the relevance of Article 3 of the ECHR. Deprivation of citizenship is separate from deportation. Deportation does not necessarily follow from the former. It is a separate matter for a separate decision against which Part 5 of the Bill provides separate appeal rights. It will be an appeal against deportation which would engage ECHR Article 3 rather than the citizenship issues.
Lord Kingsland: I am grateful to the noble Lord for giving way. My point about Article 3 was simply that being excluded from the country of one's birth is tantamount to inhuman and degrading treatment. It is was as simple as that.
Lord Filkin: Undoubtedly, it is an extremely serious act but the Council of Europe, most other European countries and the British state, which have the powers to deprive people of citizenship, have acted in such ways previously. Clearly, states have acted in that way subsequent to the passage of the ECHR.
Lord Lester of Herne Hill: Would the noble Lord accept that there are situations in which depriving someone of his citizenship, for example, on racial grounds would be inherently degrading, as found by the ECHR looking at some American cases of the Supreme Court? In other words, there are extreme
cases, which one hopes will never happen again, where to deprive someone of his citizenship on the basis of his skin colour, for example, would, among other things, breach Article 3 of the convention?
Lord Filkin: For several reasons, in particular the severity of the challenge, I am extremely reluctant to give an immediate answer to that question, and to say that I do not think so. I would like to look into the matter for reasons which the noble Lord, Lord Lester, will understand.
I was asked also about the meaning of "statelessness". Statelessness is at present undefined in the British Nationality Act 1981. The definition is set out in Halsbury's Laws of England and is currently understood to mean that a person is stateless if no state exists according to the municipal law of which he is its national. That is a slightly convoluted way of expressing the concept. It is similarly described in the United Nations Convention on the Reduction of Statelessness.
The noble Countess, Lady Mar, asked about British nationality or citizenship. In Clause 4, the proposed new Section 40(1) employs as a drafting device the term "citizenship status". The draftsman might equally have said "nationality". There are some six types of British nationality or citizenship status itemised in proposed new Section 40(1), each of which might be subject to deprivation orders.
I do not pretend that I have answered every question for reasons that the House may understand. Those I have not answered, I shall either give further serious consideration to and/or write to the relevant noble Lords who raised the issues.
Earl Russell: I listened to the Minister with considerable care. It has been a much considered answer. He did not answer my question about entitlement to benefit. I understand why not; it is a technical question. If he could write to me on that before Report stage I should be grateful.
The centre-piece of his argument was the case for equality between citizenship by birth and citizenship by acquisition. That is a serious argument and deserves to be met seriously. But I do not see why we should not say that neither of those citizenships can be taken away as a penalty, although in cases where either of them has been acquired fraudulently they could be considered as having been void ab initio. If the Minister asks how a citizenship from birth can be void ab initio, the answer is surely in a forged birth certificate. Such things have been known.
The deprivation of citizenship was never even proposed in the list of penalties people threatened against Roman Catholics in the 16th and 17th centuries. Since the whole thrust of the argument against them was that they were foreigners, the fact that no one ever considered depriving them of their citizenship is a point of some weight. They did not know that they had the option. If we are to have equality, let us not have what my noble friend Lord
Lester of Herne Hill described as an equality of misery. Let us have an equality of rank giving a proper value to the concept of citizenship, taking it away only where it is void ab initio because it is obtained by false pretences.The other central point of the Minister's argument was the claim that there is a long tradition that the Secretary of State decides these things in his individual capacity. There was a long tradition for the death penalty. There was a long tradition for the exclusion of women from Parliament. Long traditions perfectly properly come to an end. I think that this particular long tradition began to totter with the judgment of Lord Reid in Ridge v Baldwin. I think that it died with the passage of the Human Rights Act 1998.
Incidentally, the Minister is wrong about the passport issue being entirely a matter of discretion. There is a clause in the Magna Carta—I think that it is No. 41 but I would not argue from memory—which states that all His Majesty's subjects shall be entitled to free entry to and egress from the realm save in time of war. That was cited in the United States Supreme Court against the denial of a passport as recently as 1955. So it is a living tradition on the other side of the Atlantic, even if not on this side. But it is the common fact between Magna Carta and the Human Rights Act. The point has been made by the noble and learned Lord the Lord Chancellor that they are both attempts to bring the executive under the rule of law. I congratulate the Government on making that attempt. I hope that they will keep it up.
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