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Lord Phillips of Sudbury: My Lords, before the noble Lord sits down, will he tell the House just what is the difference between an oath and a pledge?

Lord Bassam of Brighton: My Lords, as I believe I made plain earlier, one addresses the issue of allegiance; the other is about the debate around the United Kingdom and its system of values. If the noble Lord examines the oath and the pledge, he will see that there is some difference. But in acknowledging his point that the two are clearly part of the same thing, as I said earlier, we expect that these will follow one from the other seamlessly.

The Lord Bishop of Guildford: My Lords, to help the Minister, there is a difference between an oath and a pledge. An oath is made to Almighty God, not to the Crown: it concerns the Crown and has a condition at the end, "according to law". I am not sure that that would be entirely appropriate for the pledge.

Noble Lords: Answer that!

Lord Phillips of Sudbury: I will, my Lords. I disagree roundly with the noble Bishop—I have not given the right preface to his dignity; I should say "the right reverend Prelate". I do not see why Almighty God should not be as relevant to what is in the pledge as to what is in the oath—especially since what is in the oath is to the Queen in Parliament, so no real distinction can be made there.

The reason I did not table a number of consequential amendments, including the one referred to by the noble Lord, Lord Bassam, is that I wanted first to test the Government's reaction to the amendment.

The noble Lord is absolutely correct in his anticipation of my feelings. I sincerely and powerfully feel that this House so often lets itself down—or rather, lets the citizens down. We already have six

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types of nationality and three types of citizenship. If we cannot get our heads round a single statement for people from overseas who do not have a command of the language to make, we are merely playing games with ourselves and them. Nevertheless, I must beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Deprivation of citizenship]:

The Chairman of Committees (Lord Tordoff): My Lords, I must inform the House that if Amendment No. 5 is agreed to, I shall not be able to call Amendment No. 6 because of pre-emption.

Lord Dholakia moved Amendment No. 5:

    Page 3, line 6, leave out subsection (2).

The noble Lord said: My Lords, first, I thank the Minister. We have had a number of discussions on this matter during the Summer Recess. I am grateful to him, although I think that there is still a difference of opinion between the method proposed in this clause as against the views that we hold on these Benches.

The existing Section 40 of the British Nationality Act 1981 permits deprivation of citizenship for a limited class of people who have British citizenship by birth or by naturalisation. The power to deprive a person of citizenship has been used once in 54 years. The proposed new Section 40(2) to be inserted into the 1981 Act by this clause, provides a sweeping new 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 acquired automatically by birth in the UK or by descent.

The Bill does not permit deprivation of citizenship where this would leave a person stateless. Thus, even without the amendment, the power can be used only against those who hold dual nationality. So in reality a person who is a British citizen cannot be deprived of his citizenship; a person of another nationality who is lawfully settled in this country cannot be deprived of his nationality; but a person holding dual nationality would fall within the provision of this clause.

In Committee, the Government's best argument for a bad clause was that by removing the distinction between naturalised/registered citizens and citizens by birth they were removing a discrimination between those born British and those naturalised as British.

The noble Lord, Lord Filkin, said:

    "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".—[Official Report, 8/7/02; col. 502.]

On 25th April, the Constitution Committee of this House queried why,

    "this innovative power is justified".

The then Minister, the noble Lord, Lord Rooker, responded that it was intended to remove the distinctions between those who became citizens by birth and by naturalisation—an extreme example of "equality" by levelling down—but he did not explain

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why that was necessary. He also suggested that the removal of nationality may "prevent or deter" individuals from carrying out anti-British activity in the future; it would seem more likely to encourage it, as the person would have no reason to feel any loyalty towards Britain in the future. If the activities in which the person was involved indeed caused significant harm, it is inconceivable that there would be no appropriate criminal charge. The same point was made in the letter by the noble Lord, Lord Rooker, to the House of Lords Select Committee on the Constitution. Similar treatment is of course achieved by a levelling down and taking powers to deprive British-born people of their nationality.

It is correct that the proposal to leave out the new Section 40(2) will get rid of existing powers to remove a person's British citizenship. However, as I pointed out, this power has been used only once in 54 years. The argument that the clause is there to assist in the war against terrorism is unconvincing. The UK's international obligations would be better met by prosecuting for terrorist offences, or extraditing people to face prosecution, than by removing a person's British citizenship as a preliminary to exporting the problem by sending the person to another country, perhaps to one less willing or less able to bring a prosecution.

Since 1973, the Government have had no need for this power. In the past year, since 11th September 2001, the Government have enacted the Anti-terrorism, Crime and Security Act 2001, which provides mechanisms for dealing with people alleged to have committed terrorist offences. At that time, the Home Secretary confirmed in relation to detention without trial that where it is possible to conduct a trial here, it would be done. That must also be the case for British nationals, regardless of how they obtained their citizenship. If the Secretary of State is satisfied that they have done anything seriously prejudicial to the vital interests of the UK, it is highly unlikely that this would not also be a crime, for which they would be prosecuted rather than being deprived of their citizenship.

Exporting potential terrorists elsewhere without first charging them with an offence and establishing their guilt only adds to the danger and instability in the world. In a briefing from the Immigration Law Practitioners' Association, it said that it fears that this power is being extended in the name of the fight against international terrorism and may be aimed at the small number of British-born Muslim militants who joined the Al'Qaeda movement. The new Section 40 could have retrospective application. On day two of its coming into effect, the Secretary of State could decide to deprive British-born nationals of their status by reason of something that they may have done prior to the Act's commencement. Perhaps the Minister could enlighten us on whether that is the intention. If so, it is an unnecessary provision of retrospective legislation, as people could be dealt with under other provisions, for example, the Foreign Enlistment Act 1870.

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Even in the United States of America, the few individuals who are alleged to have fought for Al'Qaeda do not face the loss of their American citizenship. Only last week, John Walker Lindh was sentenced to 20 years' imprisonment, but he retained his American citizenship. Clause 4 does not recognise our responsibility in the international community to prosecute for terrorist offences. Instead, the intention is to strip people of British nationality and subsequently to expel them, passing the problem to someone else.

Those are our arguments. I hope that the Minister will be able to enlighten us as regards the issues that I identified. I beg to move.

3.45 p.m.

Earl Russell: My Lords, in the Library late last night I read with some surprise in the UN Convention on the Rights of the Child a provision that a child has a right to a name. I was surprised to find that that was necessary. I was fairly plainly told by a specialist researcher in the Whips' Office that that proved that I knew nothing about the condition of refugees in refugee camps in Equatorial Guinea. I took the point and accepted the instruction.

However, I do think that one's citizenship and one's name are equally part of one's identity. To be deprived of one may well create the same sort of shock as being deprived of the other. That is the shock that I felt when I first saw this provision. But I also think that the Government need to think a little further than they have done about what they are doing when they deprive people of citizenship. There has not been a sustained consideration of the meaning of citizenship, so far as I know, since 1603-08, at the time of the Union of the Crowns of England and Scotland, when the question arose as to how far that union created a common citizenship.

It may surprise the Government that they are not the inventors of the notion that there is a link between rights and responsibilities, although it has not always been interpreted in precisely the way the Government now interpret it. On that occasion, it was interpreted in the same way by the King, the judges and the best parliamentary lawyers. They thought that the responsibility that closed up the whole arch of government was people's allegiance to their sovereign, which arose from their citizenship. In return for that allegiance, they had a right to protection from their sovereign. That link between allegiance and protection was absolutely fundamental to political thinking.

If one deprives someone of their citizenship, one deprives them of that which is the ground of their allegiance. That seems to be a rather dangerous thing to do. Equally, if one deprives people of that protection, one deprives them of the reasons for their allegiance. I know that the law retains the power to punish foreign nationals for crimes committed in this country, but such obedience as follows from that rests only on fear rather than on a sense of moral obligation. That sense of moral obligation results from citizenship. It is taking that away from people that seems extremely dangerous.

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This is a week in which Al'Qaeda has once and perhaps twice reminded us that it has not gone out of business. To tell people in that situation that they no longer have a moral obligation to obey their Government does not seem very clever.

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