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Lord Filkin: My Lords, this country has a long tradition, shared with others such as France, Spain and the United States, of providing in its law for deprivation of citizenship as a sanction against acts of treason and subversion. Ever since the British Nationality and Status of Aliens Act 1914 our law has made provision for citizenship conferred by administrative grant to be withdrawn where the person concerned is found subsequently to have harmed, or posed a threat to, vital state interests.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 the 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. The terminology may now seem a little dated, and the European Convention on Nationality sets out a better and more modern formulation.
The Government believe that this power should be retained. In our view, deprivation is a sanction which should be available as part of a potential raft of measures that can be taken against those who act in a way that is seriously prejudicial to our vital interests. We are not content to leave this entirely to the criminal law.
I wish to emphasise, however, that we regard deprivation of citizenship as a very serious step to be contemplated only in the most flagrant cases of deception or disloyalty. It would be reserved, as it has been in the past, for serious cases in which the individual's actions were totally incompatible with the holding of British nationality. An analysis of its use in this country throughout the period since the Second World War shows that it has been similarly regarded
by both Conservative and Labour governments. Except in one respect, to which I shall return, this is not a new measure. Moreover, the powers themselves are not new—they have been in statute for some time—and, although they have been used sparingly, they have been used.I wish to emphasise also that this action would be taken only where, as has been said, a person is a dual national and would not, therefore, be made stateless as a result of the deprivation.
The purpose—which I think is apparent to the House, in the strange times in which we find ourselves—is, first, to express public abhorrence at such treasonable conduct and to demonstrate that the disloyalty shown is incompatible with being regarded as a member of the British family. Examples might be where British citizens engage in espionage against the United Kingdom or fight for an enemy against British or allied forces.
Secondly, the purpose is to afford a higher level of protection to the public. Deprivation has, of necessity, to have practical consequences for the person concerned, such that he is made aware of the abhorrence with which his conduct is regarded and is prevented or deterred from engaging in similar conduct in the future.
Thus, removal of British citizenship will result in the inability of the person concerned to hold a British passport. Deprivation may also pave the way for removal from the UK. That is not an inevitable consequence but it is something which may flow from the removal of British citizenship and with it the right of abode in the United Kingdom. Therefore, as is clear, there are two potential sanctions that can flow from the deprivation of citizenship: loss of passport and deportation from the United Kingdom. Loss of British citizenship means that the person concerned becomes subject to immigration control and requires leave from the Secretary of State to remain in the United Kingdom.
We do not accept the argument that we should always keep the people concerned within our shores. In order to deprive a person of their British citizenship for seriously prejudicial conduct they must have another nationality. We see no reason why we should allow such persons to operate within the freedom provided by the United Kingdom when they have another citizenship or nationality to call upon. I shall come later to the points raised in debate. We are, of course, still subject to all our international obligations under the ECHR and 1951 United Nations Convention and we would respect those in reaching any decision about removal as distinct from deprivation.
We acknowledge that for most, if not all, actions that would give rise to liability to deprivation of citizenship, there is provision in the criminal law for the application of a particular sanction. However, this country has a tradition of providing in its law for deprivation of citizenship as an additional sanction against acts of treason and subversion, and has had that power for almost a century. We see no good
reason for removing it. I also point out that it is not within the remit of the Secretary of State to bring criminal prosecutions for terrorist offences. We wish to retain the power of the Secretary of State to deprive regardless of what decision the Director of Public Prosecutions makes about the merits of a criminal prosecution. In some cases there will be a determination as to criminal liability before a decision to deprive is made. For example, under similar provisions in the British Nationality Act 1948 Klaus Fuchs and Nicholas Prager were both deprived of their citizenship after they had been convicted of offences under the Official Secrets Act.On the other hand, we do not believe that liability to deprivation should arise only following a conviction. For example, there may be situations where the evidence of seriously prejudicial conduct would not be admissible in criminal proceedings. The protection of "vital interests" which the deprivation provisions would allow would extend wider than that afforded by the criminal law.
I turn now to some of the important points raised in the debate. The noble Lord, Lord Dholakia, argued that it was a sweeping new power. I hope that I have explained that it is not so except in the respect that it now puts all citizens on an equal basis. We believe that that is right. We believe that it is consistent with our approach to citizenship—an approach which I had hoped the House broadly supported—namely, that it is an extremely important privilege and it is one that should be respected without discrimination as to the route by which people had received citizenship. In other words, receiving citizenship through naturalisation should not ever be seen as a second-class status compared with natural born status.
The noble Earl, Lord Russell, in his thoughtful and traditional way almost argued that there was doubt as to whether we should ever deprive someone of citizenship. He did not go quite that far but that was the thrust of his case. That is a perfectly legitimate argument that one can make. Unfortunately, as he will understand, it is not one that the Government agree with or share, but it is clearly an argument that is open to be made by Members of this House.
Earl Russell: My Lords, the Minister just now described citizenship as a privilege. For those born here it is a right and the link with responsibilities is with the Crown's responsibilities to discharge its responsibility to protect them.
4.15 p.m.
Lord Filkin: My Lords, I shall discuss the responsibility of the Crown to act appropriately shortly when I refer to the exercise by the Secretary of State of his present powers and his future powers.
The power we are discussing has not been used only once in 54 years. The last occasion it was used was in 1973 and 10 deprivation orders have been made since 1948. However, I do not want to bandy detailed statistics with the noble Lord, Lord Dholakia. The noble Lord also asked quite rightly about
retrospection. That is not the effect of new Section 40. The new powers to deprive British nationals by birth would not apply to acts done before commencement.I turn to the questions and challenges posed by the noble Lord, Lord Goodhart. I refer to the issue of dual or single nationality. The argument as I hear it is that because one cannot enforce by extradition the deprivation of citizenship against everyone because only some have a single nationality, one should not exercise it at all. I understand the argument but I do not concur with it because the fact that we cannot necessarily convict everyone of every offence that has been committed does not mean that we are not right to take action against those whom we can so act against, and so we should do.
The arbitrary nature of the Home Secretary's power has also been referred to. Again, it is right that these issues are tested and challenged. The powers are not new; they have been on the statute since 1980. It is entirely appropriate that the Secretary of State should be able to act on his view that a particular set of circumstances amounts to conduct seriously prejudicial to vital interests.
In matters relating to national security the Court of Appeal, endorsed by the House of Lords, has judged that the Secretary of State is undoubtedly in the best position to judge what national security requires. But clearly that would be abhorrent if there was not a right of challenge against it. There is a right of challenge against it to ensure that a Secretary of State is not able to act arbitrarily. First, the Secretary of State is compelled by new Section 40(5)(b)—a new provision—to give written reasons for the intended deprivation order which we think is in itself meritorious. Secondly, a person against whom it was proposed to make a deprivation order would be free on appeal to raise any issue bearing on either the legality or the merits of the decision. I rarely like to disagree with the noble Lord, Lord Kingsland, but I think that the scope of challenge is wide rather than narrow, as he suggested.
The Secretary of State would therefore be prevented from making a deprivation order until such time as the appeal had been finally determined or, if there was no appeal, until such time as the deadline for bringing an appeal had passed.
I shall not go into the detail of extraterritoriality, which is a complex issue. It is certainly clear that in some cases we could not extradite for an act of treason committed abroad as there is no extradition agreement with some countries. Therefore, we would not be able to bring those people home and make them feel the weight of the criminal law. The law on extraterritoriality is itself complex. It is not in our view totally clear that in all cases an extraterritorial act of treason could be prosecuted in this country even were we in a position to be able to extradite.
However, the noble Lord, Lord Kingsland, raised a particularly important point about whether the Government would use such a power to avoid prosecutions under the Acts he mentioned. I am happy to give a categorical assurance that if we, or rather—I
must qualify that—the Director of Public Prosecutions thinks there is evidence, the state would hope that prosecutions would proceed in all such circumstances.
For those reasons I say in conclusion that it is not a new power. It seeks to treat all British citizens equally. It will be used with considerable circumspection, as has been the case in the past. There is a very extensive right of challenge. But we do not believe in these times that it would be healthy to give a signal to British citizens of whatever type that under no circumstances in practice would there be this sanction which has been with us for nearly a century.
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