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Lord Dholakia: May I ask one simple question, which relates to the JCHR communication? The JCHR says that it is unnecessary to interpret Article 1F(c) of the convention to ensure that terrorists are excluded from protection, because they already
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are. The Minister has given no example of why the additional provision is required. It negates the convention promoted by the United Nations.
Baroness Ashton of Upholland: It is not a question of negating the convention. The issue is that, as we have said, we think it important to ensure within Clause 52 that the interpretation that we wish to place is in statute. The noble Lord will know that, when one wishes to be absolutely clear about a position, it is much better to put it into legislation than not to. That is a very simple and practical reason why we sought to do it. The Joint Committee may take a different view—I read its report with great interest and, obviously, we will be in discussion with it. However, we have tried to be as clear as possible about the importance of placing Article 1F(c) in Clause 52 appropriately.
The Earl of Sandwich: I am not sure that the Minister has taken up the point made by Mr. Neil Gerrard in Standing Committee. He said:
"The introduction of the . . . article . . . implies that the Minister believes that its current use is causing problems. It would help the Committee if he indicated what sort of cases there are or how many cases there have been in which the absence of"
"from the current law has caused a problem . . . Its absence has presumably led to someone being given asylum whom the Minister feels should not have been granted it".
The Minister, Mr. Tony McNulty, replied:
"It is an entirely fair point. I say quite candidly that that question is difficult to answer, simply because we do not know the answer. I must stress that the new clause is not only being introduced as a result of 7 July"—
this differs a little from what the Minister has said—
"although those events obviously brought things into stark focus. We start from the premise that there will potentially be instances of people being granted asylum who perhaps should not have been granted it, but we are talking about a small number. It is not a blanket measure, but the legislation does require tightening up".—[Official Report, Commons Standing Committee E, 27/10/2005; col. 284-5.]
I just wonder whether the Minister could comment on that answer and enlarge on it.
2.45 pm
Baroness Ashton of Upholland: Not really, in that the answer speaks for itself. I have tried to be as clear as I can, and certainly my experience as a Minister in the Department for Constitutional Affairs is that it is always better to be as clear as possible in statute when one wishes to legislate appropriately around issues of such importance as those we are debating today. The purpose of Clause 52 is to be as clear as possible. That is what is there for; I believe that it is successful in doing that. It is not a departure from anything; there is nothing sinister underlying it. It is simply drafted to be as clear as possible. I can do no more than reiterate that to Members of the Committee, which builds on the response that the noble Lord indicated from Mr Gerrard.
Lord Hylton: I thank the Minister for her response to my amendment. In spite of the quite indifferent acoustics of this Room, I was able to pick up one or
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two crumbs of comfort. I was glad to hear that there would be further consultation with UNHCR and that each individual case will be considered separately. This consideration will give a right of appeal to individual refugees if it is a question of changing or revoking their status.
Nevertheless, I am left with considerable concerns. Genuine, bona fide, refugees who have got here by hook or by crook, having overcome all the very major obstacles that prevent them getting here in any case, will be placed in a state of limbo for five years. It is natural to assume that refugees having arrived here and been accepted, will make the worst assumption about the conditions in their country of origin and the way in which those are likely to go. Given that their appreciation of what is going on in their home country is unfavourable, they will want to make definite plans to integrate themselves into British society and to do the best they can for their relatives and children. The Bill's general thrust seems to make the process of planning by individuals and families unnecessarily difficult. I hope that that gives the noble Baroness something more on which to reflect.
I agree with the noble Lord, Lord Dholakia, that this is a bad clause and almost certainly unnecessary. I hope very much that he will come back to it at the next stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 [Deprivation of citizenship]:
Lord Dholakia moved Amendment No. 70:
The noble Lord said: Amendment No. 70 applies to Clause 53, which deals with deprivation of citizenship. I shall speak to Amendments Nos. 70A, 71 and 72 as well. I hope that Members of the Committee will bear with me because the amendments require a lot of explanation.
Amendment No. 70A relates to deprivation of right of abode and Amendments Nos. 71 and 72 relate to acquisition of British nationality. The purpose of Amendment No. 70 is to remove the power of the Secretary of State to deprive someone—anyone—of his citizenship on the grounds that deprivation is conducive to the public good. This replaces the existing provision, which allows deprivation on the grounds that the person has done something seriously prejudicial to the vital interests of the United Kingdom.
We need a justification of why such powers are needed. The power to deprive people of British citizenship was last amended by the Nationality, Immigration and Asylum Act 2001. The law was changed to allow the British-born to be deprived of this nationality. The Home Office Minister in the other place is on record as having confirmed last October that this power has not been used. We still await an explanation of why this clause is needed, as asked for by the House of Lords Committee on the Constitution. The 2002 Act amended the law to provide that a
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person can be deprived of British citizenship under Section 40(2) of the British Nationality Act 1981 only if the Secretary of State is satisfied that he or she has done something that is seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory. The 2002 wording replaced provisions that can be broadly summarised as disloyalty to the sovereign, unlawful communication with the enemy, or sentences of imprisonment in any country of more than 12 months within five years of registration or naturalisation. The 2002 wording was taken from the European Convention on Nationality.
The Minister of State confirmed in the Commons committee that the UK has not ratified the European Convention of 1997. He said:
"We have not yet ratified and we shall have to reflect, in the light of all the nationality legislation in this Bill, on whether it will be possible to do so. There may be a reservation in respect of our powers of deprivation".
So there is already ministerial concern about the powers that we are trying to introduce. It is clear from what was said in 2002 that existing powers cover all that is needed and it was stated then that it encapsulated an evolving concept. The Minister of State was pressed on this in the Commons committee by my honourable friend Dr Evan Harris. He asked:
"I should be grateful if the Minister would answer my fundamental question: is the intention in the clause to deprive people of their citizenship for acts that are not seriously prejudicial to the vital interests of the UK?"
Mr McNulty, who has been quoted before, was very helpful in this instance. He said:
"That is a fair question, and my answer is that I do not think so".—[Official Report, Commons Standing Committee E, 27/10/05; col. 272.]
Then why change the law? "Conducive to the public good" is a long-tried concept in immigration law, being the test applied in deportation cases. It is imprecise and ILPA has had concerns at the way in which it has been applied in deportation cases over the years. It goes far beyond terrorism, however wide the latter is defined. Thus the clause falls to be justified not in the context of what is acceptable to counter a terrorist threat, but more broadly. "Conducive to the public good" is not entirely new in nationality law, but it is here given a new twist.
The foundation of current nationality law is the British Nationality Act 1981, in which the original Section 40 incorporated provision for deprivation of citizenship from its predecessor, the British Nationality Act 1948. It applied only to those who had acquired British nationality by registration and naturalisation, and came into play only in cases of disaffection, treason in time of war and serious criminal conviction within 5 years of acquisition.
Once that threshold was passed, the Secretary of State had additionally to be satisfied that it was,
Thus it served as extra protection for the citizen at risk of deprivation.
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When the Government consulted on their list of unacceptable behaviours, it was with a view to establishing grounds for deportation and exclusion. They now seek to use the list to found deprivation of citizenship as set out in the Parliamentary Under-Secretary of State's letter of January 2006 to the House of Lords Committee on the Constitution, which repeats almost verbatim what the Minister of State said in Standing Committee E:
"the Home Secretary published a list of behaviours on 24 August which, he said, would form the basis for the use of his discretionary powers to deport and exclude from the United Kingdom those whose presence here was deemed not to be conducive to the public good. Such behaviours included speaking or publishing material which encourages or provokes terrorism or other serious criminal activity . . . It is, in our view, now essential that we have similar powers to withhold and to remove British nationality and the right of abode in the United Kingdom where an individual is found to have engaged in such activity . . . Accordingly, Clause 53 brings the criteria for deprivation of citizenship into line with the criteria for deportation or exclusion so that activities of the sort referred to by the Home Secretary could justify either (or in appropriate cases) both types of response".
Clause 53 amounts to an equation of the deprivation of citizenship with the deportation of aliens. It is a huge leap to move from identifying a basis for excluding or deporting a foreign national from the UK to using the same test as a basis for depriving a person of citizenship he or she may have held since birth. While some British citizens have a second nationality, it may be a nationality that they have never used, of a country in which they have never lived, and with which they have few, if any, connections.
Citizenship is not lightly to be taken away, as this clause purports to do. The Government have placed emphasis on the value of citizenship, setting up a new test, pledge and citizenship ceremonies for those naturalising as British in 2002, and requiring an appreciation of the history of these islands as part of the "Life in the United Kingdom" test. In 2002, the Government set up a new pledge and citizenship ceremonies for those naturalising as British. The aim was to make more of citizenship. Now the equation of the two tests in Clause 53 pulls in the opposite direction, equating dual-national British citizens with foreign nationals. How can this help with the problem that has repeatedly been identified, including in the context of Northern Ireland, that insensitive anti-terrorism legislation may alienate communities and undermine security?
In its third report, the Joint Committee on Human Rights said of this provision,
"the new test for deprivation of citizenship . . . contains insufficient guarantees against arbitrariness in its exercise in light of . . . the significant reduction in the threshold . . . the lack of requirement of objectively reasonable grounds for the Secretary of State's belief . . . the arbitrariness of the definition of the class affected and . . . therefore gives rise to a risk of incompatibility with",
Article 12(4) of ICCPR, Articles 3, 5 and 8 of ECHR, Article 14 in conjunction with those articles and Article 26 of ICCPR.
The Parliamentary Under-Secretary of State said at Second Reading:
that is the Joint Committee on Human Rights—
"is clearly saying to us that the public good test is too vague . . . I look forward very much to discussing the whole issue . . . I take very seriously what the committee is telling us".—[Official Report, 6/12/05; col. 586.]
There is a great deal of uncertainty about this clause. We shall come back on Report so that we can seek the broader view of your Lordships' House.
I fear that deprivation of citizenship would adversely affect, and possibly target, Britain's ethnic minorities. I fear the consequences for race relations. It does not fit in with the idea of promoting Britishness.
British citizens should enjoy a higher protection than people subject to immigration control. We now put them on an equal footing. We need to give clear examples of why "vital interest" is not working. Do I understand that we are after low-level activities? In that case, what low level activities are meant in this context? I look forward to the Minister's explanation on this amendment.
3 pm
Amendment No. 70A deals with deprivation not of citizenship but of the right of abode. I have discussed this matter with the Minister informally and I trust that today's debate will clarify the position before the Report stage. There is no such thing as one form of British nationality. However, the right of abode set out in Section 2 of the Immigration Act 1971 provides that British citizens, as well as certain Commonwealth citizens, have the right of abode. Clause 54 provides a new power to deprive people of that right of abode where the Secretary of State thinks that it would be conducive to the public good for the person to be excluded or removed from the UK. Those affected by Clause 54 will be Commonwealth citizens who immediately before the commencement of the British Nationality Act 1981 were Commonwealth citizens with the right of abode in the UK. For those people, such powers were not considered necessary as recently as the Nationality, Immigration and Asylum Act 2002, when nationality law was addressed in detail.
The right of abode is a fundamental right associated with citizenship, and deprivation of the right of abode has the same serious consequences as deprivation of citizenship for a dual national. The loss of the right of abode is the loss of one of the fundamental rights associated with nationality, and the comments I made on Clause 53 are also applicable here.
The Joint Committee on Human Rights concluded that,
"there are not at present sufficient guarantees against arbitrariness in the exercise of the power".
as it identified on what is now Clause 53, noting the,
and the same problems of legal uncertainty, given the list of unacceptable behaviours.
In this regard, it is worth noting that it was in the context of discussions on this clause that the Minister made the following point, which is equally applicable to Clause 53:
"Our exercise of the power would be informed, but not wholly constrained, by the published list of 'unacceptable behaviours'".
Where do people go if their right of abode is taken away? Unless they have dual nationality, there is nowhere for them to go. So what are the Government trying to achieve? There needs to be much more clarification. In particular, there is a need to clarify wordings such as "thinks", which is often confused with the word "satisfied".
Unlike the Minister in the other place, I agree with the House of Lords Select Committee that,
"it would be unfortunate if a change in the language were inadvertently to alter the existing judicial approach to such statutory discretions".
I trust that the Minister will rethink this clause in time for the Report stage.
Amendments Nos. 71 and 72 in Clause 55 deal with the acquisition of British nationality rather than deprivation of it. I can follow up the arguments that I advanced earlier. Clause 55 is designed to retain the current test for deprivation of citizenship that applies to British citizens—that is, that they have done something seriously prejudicial to the vital interests of the United Kingdom or British Overseas Territories. The right of abode may be held separately from British citizenship. It applies to certain Commonwealth spouses of British citizens and to some people who hold a second class of British citizenship, such as British overseas citizens. The holder of the right of abode is free to live in, and to come and go into and from, the United Kingdom. The test for deprivation of the right of abode will be similar to, but not the same as, that for deprivation of citizenship.
The Home Secretary must "think"—rather than be satisfied with deprivation of citizenship—that it would be more conducive to the public good for the person to be excluded or removed from the UK. Furthermore, unlike the proposed deprivation of citizenship provisions, there is no requirement that the Home Secretary needs to be satisfied that the person would not otherwise be stateless when making an order. There is no justification for importing the subjective "think" standard when deciding on whether to deprive right of abode. The "think" standard was proposed, and dropped, in the 2002 Bill in relation to the seriously prejudicial clause. At the very least, the same standard that applies to depriving those who have British citizenship from their nationality should be applied to those with the right of abode. Again, the deprivation of the right of abode under Clause 54 is likely to have an adverse impact on Commonwealth citizens of primarily black and Asian descent.
Registration provisions apply primarily to under-18s and to some adults who have a special status that enables them to register rather than apply for naturalisation. For most of these adults registration is
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by entitlement. For children, there are four major classes who will be affected by this provision, all of whom have an entitlement to register, in addition to the remaining classes of children who can register at the Home Secretary's discretion.
Naturalisation is only ever discretionary. The distinction between the two—registration and naturalisation—is therefore an important one. To import a lower standard of "good character" removes this distinction. On the basis that a right to register should not be subject to the same level of discretion as an application to naturalise, the only sensible approach is to adopt the minimum standard currently used to deprive citizens, which is the "seriously prejudicial" test. I beg to move.
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