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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 citizenship—if it is justified at all—should be a matter for decision by the courts.

Removal of citizenship does not have important immediate effects in itself. However, it makes it possible subsequently to remove or exclude the former

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citizen from the United Kingdom. One has to ask why, if at all, that is necessary. We can try people in the courts of the United Kingdom if they have committed an offence. If there is no evidence of an offence committed here, what is the justification for the removal of citizenship or for subsequent deportation?

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 War—a 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.

Lord Kingsland: My Lords, our Amendment No. 7 is also in this group, which relates to Clause 4, entitled, "Deprivation of citizenship". Clause 4(2) says:

    "The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of—

(a) the United Kingdom, or (b) a British overseas territory".

Subsection (4) qualifies that by adding that citizenship cannot be so deprived if it would render the citizen stateless.

Our amendment would add to that qualification,

    "or if the seriously prejudicial conduct in question constitutes an offence under the Terrorism Act 2000 (c.11), the Anti-terrorism, Crime and Security Act 2001 (c.24) or general criminal law".

We have tabled the amendment because, under the clause, the Secretary of State can override any single stipulation of criminal law in the land by this massive discretionary power, which depends solely on his subjective judgment. What counts is whether the Secretary of State is satisfied. The provisions for appeal against the Secretary of State's decision are, moreover, extremely circumscribed.

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,

    "the serious nature of the things that new Section 40A suggests would have to be proved against a person before they were deprived".

I take nothing away from Miss Eagle's sincerity in making that case, but there is nothing about proof in Clause 4; the judgment of the Secretary of State is a subjective judgment. The Secretary of State is not required to obey any of the disciplines of the criminal law of the land.

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Miss Eagle continued:

    "They are not small acts or issues of no consequence, but involve serious issues prejudicial to the vital interests of this country. They are not things that one can do by accident one weekend. ... what we have in new section 40A is a power to deprive people of their nationality, in certain circumstances, if they have behaved in ways that amount to treason, problems for national security or interfering with the vital interest of this country. They are not trivial courses of conduct".—[Official Report, Commons Standing Committee E, 30/4/02; col. 60.]

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 citizenship—if they had it—using 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?

The noble Lord, Lord Filkin, made an intriguing comment in Committee on 8th July. He said:

    "We do not consider that deprivation of citizenship should in future be applied as a penalty for acts of a general criminal nature".—[Official Report, 8/7/02; col. 503.]

What then do the Government envisage as a response to acts of the most serious criminal nature against the state, such as those that I have already outlined?

Later in that debate I asked the noble Lord to outline the circumstances in which he foresaw the discretion of the Secretary of State being exercised. He replied:

    "One circumstance would be where a British citizen, either by himself or in concert with others, had taken actions against the interests of the British state and its citizens in ways that were clear and blatant while not resident in the United Kingdom. In that situation, I cannot see that the British criminal law could be used against them if their acts were committed abroad, even if their acts were against the interests of the British state from abroad".—[Official Report, 8/7/02; col. 511.]

Surely, however, the Government are at perfect liberty in such a case to apply for the extradition of that person with a view to prosecuting him or her in our own courts in the United Kingdom.

I hope that the Minister will at least be able to reassure noble Lords—indeed, to undertake—that 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 on—in my submission,

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irresponsibly—this terrorist problem to another state which may not have the same capability of dealing with it as we do. It cannot be a proper response to the terrorist threat to refuse to deal with it ourselves if the act involved occurs in our jurisdiction or in another jurisdiction from which we can gain extradition. That would be irresponsible of us.

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 can—as I am sure he is about to—tell us that the Government have thought again about this clause and met the criticisms from both the Liberal Benches and our own.

4 p.m.

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 argument—the 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:

    "The Secretary of State may by order".

It is giving power to the Secretary of State to create a new crime. Although the crime is punishable by only one penalty, the removal of citizenship, it is nevertheless a crime and something that the law will punish.

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.

How is the crime defined? It is,

    "anything seriously prejudicial to the vital interests of ... the United Kingdom".

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What precision is there in the words "anything seriously prejudicial"? How would any judge be able to interpret "anything"? It is the widest word that could possibly be used. I might blow my nose and the Secretary of State might regard that as seriously prejudicial to the interests of the United Kingdom, particularly if I had a cold and it was about to spread among this body. That would indeed be seriously prejudicial to the interests of the United Kingdom. "Seriously" is a qualifying word on which it is impossible to put any precise meaning.

"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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