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Lord Dholakia moved Amendment No. 60:
- Page 3, line 3, leave out "vital interests" and insert "national security"
The noble Lord said: I shall be brief. While the definition given in the Bill mirrors that of the European Convention on Nationality, we find that it is too loosely drafted. Again, citizenship is of fundamental importance. Many of us see it as a right; its deprivation should not be treated lightly. Therefore, we propose that instead of the vague phrase "vital interests", which has little case law and does not come from British tradition, we use the phrase "national security" as the test in new Section 40(2). It is well tried and tested, far clearer, more specific, much
less general and therefore much less worrying. I hope that the Minister will accept the amendment. I beg to move.
Lord Kingsland: As the noble Lord, Lord Dholakia, said, this group of amendments relates to the criterion by which the Government propose to allow the Secretary of State to deprive a person of his or her citizenship.
The existing criteria in the British Nationality Act, which relate to disloyalty to Her Majesty; trading with the enemy in time of war, and the imposition of a sentence of imprisonment of 12 months or more, are to be abolished and replaced with a single criterion of doing anything seriously prejudicial to the vital interests of the United Kingdom.
As has been said in previous debates, the Government do not attempt to define "vital interests". Amendment No. 61 attempts to correct that by defining them in terms of national security, economic well-being and the safety of the population. The first two, national security and economic well-being, are terms already used in the Security Service Act 1989 to define the functions of the Security Service.
The third, the safety of the general population, was an example of a "vital interest" given by the Minister in another place in the Standing Committee report, when she said that national security does not necessarily cover some of the potentially prejudicial activities that are worthy of deprivation, such as to those to do with infrastructure, vital economic interests or the general safety of the population.
I apologise to the Committee for a drafting error in the amendment, which rendered the Minister's,
- "general safety of the population"
- "safety of the general population".
Amendment No. 62 seeks to take an alternative route by defining the phrase "vital interests" in terms of the two international conventions in which it appears: the United Nations convention on statelessness and the European Convention on Nationality. Those were the measures referred to in another place by the Minister as being the source of the term "vital interests". However, I do not believe that "vital interests" is defined in detail in either of those conventions. Thus the same problem of definition may well remain, even with the amendment.
I hope that the Minister, especially in view of the fact that the debate in Committee in another place was curtailed by the operation of the timetable Motion, will be able to respond positively to the amendments and to set out in detail the Government's interpretation of the words "vital interests".
I ought to say that these amendments, and the way in which I have sought to explain them, in no way resile from the views expressed by the Official Opposition in the last two groups.
Lord Filkin: I thank both noble Lords for their contribution to the discussion of whether or not the
term "vital interest" is beneficial. I shall seek to suggest why it is in the general interest for the term not to be defined further.Ever since the British Nationality and Status of Aliens Act 1914, the law has made provision for citizenship conferred by administrative grant to be withdrawn where the person concerned is found subsequently to have harmed, or posed a threat to, vital state interests.
In current legislation, such actions are expressed in terms of disloyalty or disaffection towards the Crown, or as unlawful trade or communication with an enemy in time of war.
Those expressions, while they still carry meaning, have become dated and perhaps fail to reflect the full width of activity that might threaten our democratic institutions and our way of life. September 11th provides a horrific illustration of the sort of threat that we have in mind.
The Government are on record as stating that the term "vital interests" will be interpreted as covering threats to national and economic security and to public safety—in that respect we are foursquare with the points made by the Official Opposition—but not to actions of a more general criminal nature, of which Members of the Committee will be aware from the debate in another place.
The term occurs in the 1961 and 1997 conventions. It is not expressly defined in either of those places. As a term of international law, the concept is an evolving one. That is right and necessary. If one reflects on how our perceptions of the vital interests of a state could be threatened and how all of us have shifted in the past 12 months. One hopes that it will not occur, but it is conceivable that we may yet further change our perception.
For that reason, the concept being an evolving one, and states being allowed a margin of appreciation in applying it to situations arising within their own jurisdictions that they might not previously have conceived were possible, seems to me to be right and proper.
I hope that the Committee will understand, therefore, why we do not consider "vital interests" to be a term that benefits from an attempt at further definition on the face of the Bill.
I remind the Committee of the safeguards, both in the Bill and in current legislation, against the arbitrary use of the deprivation powers. A right of appeal against deprivation will lie either to an immigration adjudicator in the first instance or to the Special Immigration Appeals Commission. To repeat the points we made on a previous amendment, the challenge in such a hearing is on the merits and on the law. A defence could be that this does not touch on the vital interests of the state. That would be a perfectly open line of argument to be made by a defence counsel at an appeal hearing before an adjudicator or before SIAC.
For those reasons, I hope that both Benches will recognise why we feel that it is not in the interest of the Government or of the state that the term is given a tighter definition than it already has.
Lord Dholakia: I thank the Minister and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 61 to 64 not moved.]
Lord Avebury moved Amendment No. 65:
- Page 3, line 13, after "(2)" insert "or (3)"
The noble Lord said: As the Bill stands the Secretary of State cannot use the powers under Clause 4(2) if as a result of so doing it would make the person concerned stateless. We seek to extend that prohibition to Clause 4(3) under which a person may be deprived of citizenship for the reasons mentioned—fraud, false representation or concealment of a material fact.
Obviously, the UN Convention on the Reduction of Statelessness comes into the picture. It would be interesting to know from the Minister whether the exercise of this power making someone stateless for the reasons given would in fact bring us into some difficulty with the convention. I think it probably would. In any case, it may also cut across the obligations that we have under Article 2(3) of the International Covenant on Civil and Political Rights. Under that article we undertake:
- "(a) To ensure that any person whose rights or freedoms . . . are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity".
- "has done anything seriously prejudicial to the vital interests of the United Kingdom".
But where the person has obtained citizenship by means of fraud, false representation or concealment of a material fact, those are ascertainable facts which would be very difficult for anyone to contest. So he does not have an adequate remedy under Article 2(3) of the covenant for the deprivation of the right of citizenship under the clause. I hope that for the sake of our good name with the international community, and also for the sake of consistency between Clause 4(2) and (3), the Minister will accept the amendment. I beg to move.
Lord Falconer of Thoroton: As the noble Lord has said, Clause 4 proposes the removal of the present distinction on deprivation between those who have
acquired nationality by registration or naturalisation and those who acquired it automatically at birth. My noble friend Lord Filkin has gone through that issue.As the noble Lord, Lord Avebury, has pointed out, the impact of the change is mitigated by the proviso in proposed Section 40(4) of the 1981 Act which would prevent deprivation on grounds of seriously prejudicial activities where the person concerned had no other citizenship. Again, as the noble Lord has rightly pointed out, deprivation would still be possible, even where statelessness might ensue, where the citizenship is being removed on the grounds of fraud, misrepresentation or concealment of a material fact. The question posed by the amendment is, why should that distinction exist? "Please"—the noble Lord is saying—"bring it into line with all the other circumstances".
The distinction is where the citizenship has been obtained by fraud, misrepresentation or concealment and that person should not have acquired the citizenship in the first place. That is unlike the other situation where he or she should have received it, but then has done something to deprive himself or herself of it. The allowing of the deprivation of citizenship, even where that would make one stateless on those grounds, is consistent with the provision made in that regard by the 1961 UN Convention on the Reduction of Statelessness, to which the United Kingdom is a party. It is also consistent, we say, with the 1997 European Convention on Nationality, which we hope to ratify in due course.
So there is a reason for the distinction. It is consistent with our obligations under international law which we have either signed and ratified or signed and hope to ratify. Looking at the picture as a whole, Clause 4 represents a significant improvement on the present situation regarding the avoidance of statelessness. At present, potential statelessness is an obstacle to deprivation only on grounds of a serious criminal conviction.
As a footnote, perhaps I may clarify our position on dual nationality. Generally speaking, it is one of tolerance. There is no restriction in our law on the ability of British citizens, British Overseas Territories citizens, British overseas citizens or British nationals overseas to acquire or retain a second nationality or citizenship. For historical reasons, the same is not true of British protected persons and certain British subjects, who lose their British status on acquiring another citizenship. The Bill will not change these arrangements. But that is a footnote to the main point raised by the noble Lord. I hope that in the light of what I have said, the noble Lord will understand why we have drawn the distinction, why it is consistent with international law and why we think that it is sensible to retain it.
9 p.m.
Lord Avebury: My Lords, I shall obviously consider carefully what the noble and learned Lord said. Returning to his initial remark that the individual
concerned should not have acquired UK citizenship in the first place, of course that is so, but the result of depriving him of citizenship is the same.I am thinking of the matter from the point of view of the subsequent fate of an individual who has no other citizenship. If, when he acquired our citizenship, he was a citizen of another country and retained that nationality—as the noble and learned Lord said, we have no objection to people having dual nationality—presumably, he will simply usually revert to his former citizenship. But there may be unusual cases in which that other country does not allow dual citizenship and in which, when someone loses his British citizenship, he becomes stateless. That would not be a good idea.
So I shall consider the matter in the light of what the noble and learned Lord said, but I do not guarantee that I shall not return to it on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 66 to 70 not moved.]
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