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Lord Goodhart: My Lords, the Bill rightly excludes from the ambit of its power cases where it would render a British citizen stateless. However, the mere possession of a second nationality is not an adequate protection. There are, after all, people who were born in the United Kingdom, who are United Kingdom citizens by birth, but who hold a dual nationality, perhaps because their parents, at the time of their birth, were foreign citizens who had settled here in the UK but had not yet acquired British nationality. Those people may never even have set foot in the country of their second nationality, they may not speak its language, nor have any practical connections with it. Surely it would be wrong to make it possible to deprive those people of the citizenship of the United Kingdom and the rights of abode and entry that go with it.
The Bill extends the existing powers relating to UK nationals by naturalisation to United Kingdom citizens by birth. In its memorandum to the Joint Committee on Human Rights, the Home Office justified that by saying that it ended discrimination in the removal of citizenship between those who are citizens by naturalisation and those who are citizens by birth. In fact, it simply creates a new form of discrimination between British citizens by birth who hold no other citizenship and British citizens by birth who happen to hold the nationality of a second country as well, maybe by birth, maybe by subsequent acquisition. That discrimination is no more justified than the discrimination that it replaces.
The Joint Committee's report makes clear that there has been wide criticism of the subjective nature of the Home Secretary's decision. It is a matter of his opinion. We are dealing with an exceptional and draconian power. Surely the burden should be on the Home Secretary to show that there are reasonable grounds for his decision. As it is, he needs only to satisfy what is known as the Wednesbury test to show that his decision cannot be said to be so unreasonable that no Home Secretary properly acting could have taken it. That is far too high a test. I would go beyond saying that the Home Secretary should be required to show reasonable grounds. If the power exists, it is such a severe and exceptional one that any decision to remove should not be for the Home Secretary, but should be taken by a court on the application of the Home Secretary. The Home Secretary cannot sentence people in this country to prison. He cannot extradite anybody who is lawfully in the United Kingdom. Those are decisions for the courts. Any removal of citizenshipif it is justified at allshould be a matter for decision by the courts.
As my noble friend Lord Dholakia has said, this power has been exercised once in the past 54 years. The power appears originally to have been introduced in 1914 as a response to the outbreak of the First World Wara time of anti-German hysteria that seems to have led to legislation to make it possible to deprive naturalised Britons of German origin of their citizenship. That is not a happy origin for this power.
We now have strengthened anti-terrorist laws that have made it easier to prosecute people in this country for terrorist offences committed here or sometimes abroad. There is no reason to believe that removal of citizenship for reasons other than fraud in obtaining it is a necessary power. It is equivalent to a penalty for a serious criminal offence. As I have said, if it is to be done at all, it should be done not by the fiat of the Home Secretary, but by a proper judicial process.
What is the Government's case for claiming this remarkable and unprecedented power to deprive a person born in this country of his or her citizenship, in the circumstances set out in Clause 4? In Standing Committee in another place the then Minister, Miss Angela Eagle referred to,
It is reasonable for your Lordships to conclude that if a person has committed treason, or an offence under the Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001 or perhaps the Official Secrets Act, their behaviour is also capable of falling within the provisions of the new section. Why should such a person not be prosecuted in the normal way in our criminal courts instead? Why on earth should the Secretary of State be given this discretion to pick somebody out of the normal judicial process and deal with him by his own subjective judgment.
Again in another place, Miss Eagle referred to war criminals as a category of person whom we would wish to deprive of citizenshipif they had itusing these new powers. Does that mean that the Government will, in future, consider deprivation of citizenship under Clause 4 as an alternative to prosecuting war criminals by due process?
I hope that the Minister will at least be able to reassure noble Lordsindeed, to undertakethat the proposals in this clause will not be used so as to evade the obligation to prosecute terrorists and others who commit serious crimes against the United Kingdom under any of our criminal laws.
I conclude with this point. Clause 4 must be against the rules of comity in international law. If we identify someone as a person proposing to commit a serious terrorist offence, for example, surely the obligation is on us to deal with that person. If we simply deport him, we shall be handing onin my submission,
I therefore hope that, during the Summer Recess, the noble Lord, Lord Filkin, has had time to reflect on this vital matter, so that he canas I am sure he is about totell us that the Government have thought again about this clause and met the criticisms from both the Liberal Benches and our own.
Lord Rees-Mogg: My Lords, I support the arguments which have been used in favour of Amendment No. 5. There also seems to me to be one very powerful but secondary argumentthe issue of whether a person's access to a second citizenship is a random and arbitrary one. Dual citizenship depends on the various legislation of every other country in the world. Some people have it purely by accident. Some people, such as myself, do not have it equally by accident.
I happen to be in a position which gives me a certain understanding of the arbitrariness of this. Were I six years younger, or had my parents not been married at the time that I was born, I should be a dual citizen of the United States. Owing to my age and the fact that they were married, I am not entitled to American citizenship. So people who will be excluded from the effect of this clause will be excluded on an entirely arbitrary and random basis. There is no common rule running through it which says that there is a relationship between their connection with this country and whether they may or may not have a second citizenship.
That is the minor matter. Although it is a pretty important argument and one with which I entirely agree, it is not as important as the quite extraordinary subsection (2) which we have in front of us. It states:
I cannot recall an occasion since the 17th century in which Secretaries of State have been given this power with so little limitation. It is exercisable without evidence of the crime being produced. There is no requirement that there should be evidence of this crime, whatever the crime may be. It is not tried. It is not taken before the courts although there would undoubtedly be an appeal beyond the appeal provided for in another clause.
"Prejudicial" merely means that the Secretary of State thinks that it is not in the interests of the United Kingdom. There are some who think that Euroscepticism, which is rife in this House and in Parliament generally, is prejudicial to the interests of the United Kingdom because we ought to join the single European currency. Are all Eurosceptics with another citizenship to have their United Kingdom citizenship removed? On the face of it, the idea is absurd. An absurdity of this degree is also a manifest and intolerable injustice.
I hope that this amendment will be pressed to a Division if the Government continue to be obstinate. I am not myself prepared to support any Secretary of State having power given to him to create a crime on an arbitrary basis.
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