Amendment 56ZC is about retrospectivity. The noble Baroness, Lady Lister, has already made the point that, under current law, a naturalised British citizen who does not also have another nationality is not liable to being deprived of their citizenship. Yet that is what the Government assert. The law says that they cannot be made stateless by deprivation of UK citizenship which has been conferred. The amendment seeks only to ensure that a person could not lose their citizenship as a consequence of actions which they were unaware could result in such loss, particularly since the information and intelligence which will lead to the decision-making will, in most cases, be withheld from them through the closed procedure.

The final amendment is about children. The Government do not consider an amendment such as this necessary to ensure that the best interests of any children affected are treated as a primary consideration. The Government cite the “children duty” in Section 55 of the Borders, Citizenship and Immigration Act 2009 as applying already to the Secretary of State’s decision-making in respect of deprivation decisions. However, as the noble Baroness has already said, the Section 55 duty applies only to children who are in the United Kingdom. It does not apply if the children affected, who may be British citizens, are abroad at the time, as they very well might be when the power is being exercised in relation to an individual who is abroad at the time of deprivation. Amendment 56ZD is very simple. It seeks to extend the duty in Section 55 of the Borders, Citizenship and Immigration Act to children who are outside the UK at the time when the Secretary of State makes the decision affecting them. Can the Minister explain how else such children could be protected?

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Baroness Hamwee: My Lords, I have Amendments 57A and 57B in this group and share the concerns that have been expressed about the substance and transparency of the new clause and what the point of it is. In Committee, I asked that question rhetorically. I now ask—I hope it is not a rhetorical question—why we should not use a TPIM, as we have that legislation on the statute book. The conduct of the individuals concerned seems to fall into the same area, and this indeed raises the same issue—that the individual has not been prosecuted. If TPIMs are not to be used, it is bound to raise the suspicion that the power will mainly be exercised when an individual is out of the country.

The charitably funded Bureau of Investigative Journalism has identified 17 cases, mainly through FoI and court records, in 15 of which the individual was overseas at the time of the deprivation under the provisions as we now have them. If these individuals are regarded as such a high risk, I think we can assume that, having lost their status, they would be subject to close surveillance, certainly if they are in this country. If they are overseas, that might raise even wider matters.

I understand from officials—I thank them as well as the Minister—that if an individual, having been made stateless through this procedure, is in the UK, he will have limited leave to remain. I was referred to the relevant Immigration Rules. Under paragraphs 404 and 406, a person who is,

“a danger to the security or public order of the United Kingdom”,

will be refused leave to remain. Can the Minister tell noble Lords whether that person is then disqualified from leave to remain and what happens to him?

I understand from the old UKBA casework instruction on restricted leave that that will apply, and that restrictions and conditions can be imposed, including a residence restriction. Noble Lords will recall concerns about residence restrictions under the old control order regime. One of the concerns about those restrictions was the impact on the family of the individual subject of an order. Can the Minister explain what will happen to the family of an individual if, on the one hand, he is in this country and if, on the other, he is abroad? Does the family qualify for leave to remain in the circumstances of the individual being a danger to security or public order, as I have quoted? I mention all this because the impact on families was a concern about control orders, TPIMs and terrorist asset-freezing. Reporting on that has been a component in reviews, which we have seen, by successive independent reviewers.

The Bureau of Investigative Journalism mentioned to me two examples of the impact on families. One was of a Sudanese-born man who lost his citizenship. The bureau told me that a Home Office official said in evidence in court that the Government waited until he was overseas before removing it. He had taken his wife and four children to Sudan for the summer. That left the children effectively exiled as well. The other example was of a British-born man whose youngest son was born here and who remains a British citizen. He has developmental disorders and is dependent on both his parents. His mother wishes to return to the UK for treatment for the son but she cannot do so without her husband. One does not want to be too hearts and flowers about this. The issue that we are being asked to

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consider is a tough one, but I think that the issue goes wider than just the individuals involved. I asked the Minister whether individuals and a family might be left without resources and so left destitute. Can he share with the House the Government’s position on that, particularly if the deprivation has been made while the individual is abroad?

5.45 pm

There is the much wider issue of the impact on the community of the individual. Tackling terrorism and the climate and circumstances in which openness to terrorism activities are fostered is a very big challenge. The way in which deprivation resulting in statelessness is perceived and the negative effect on a community worry me greatly. I will leave it to the noble Lord, Lord Pannick, to say whether those are the sorts of question that he has in mind for his proposed committee.

Because of the points of similarity with TPIMs, I went to the TPIMs legislation for my amendment in Committee, which I have tabled again as Amendment 57A. Noble Lords will understand that I do not seek the appointment of a “dependent reviewer”. I am not sure where that typo came from. Leaving that aside, there would an appointment of an independent reviewer to carry out annual reviews and report on them to the Secretary of State, with the report being laid before Parliament.

Transparency is hugely important, and I can see from my noble friend the Minister’s amendment that he agrees. I have not specified the current position of the independent reviewer of terrorism legislation, although there would be a logic to it, but I am aware that his so-called part-time job has become a very big task and the issue of resources is obvious. I am glad to see the government amendment. The Minister has said that after the first report it would be necessary to report only every three years, because of the low numbers of people involved. That may be so, but each individual in that cohort is as important as the next.

My Amendment 57B points in the opposite direction in requiring quarterly information. The legislation on terrorist asset-freezing and TPIMs contains specific requirements for quarterly reporting by the Government, as well as annual reporting by the independent reviewer. The Home Office quarterly asset-freezing reports, with details of all pending cases that are now included, keep Parliament and the public involved. One sees them in the periodic Written Statements published by the Government and they are a reassurance as to how the state’s powers are being used. All this is behind my two amendments.

Baroness Kennedy of The Shaws (Lab): My Lords, I have made a number of speeches on this subject at different stages of the Bill and I do not want to take too much of the House’s time. I welcome the idea of an independent reviewer being involved, but I say to the Minister that it is not enough. As he will see, my name is on a number of the amendments that were referred to by my noble friend Lady Lister. I, too, am a member of the Joint Committee on Human Rights. The amendment tabled by the noble Lord, Lord Pannick, is really the course that I would urge this House to take.

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The whole idea of making people stateless is unsupportable as a measure, but that fact does not place barriers in the way of the Government in their efforts to deal with terrorism. Terrorism is a serious threat nationally and internationally, and the Government must act in the interests of our safety. Opponents of this move, of whom I am one, are not objecting to removing citizenship from people who have two passports. If someone already has dual nationality—and not just the possibility of being able to get it from somewhere else because they have a father or grandfather who is of a different nationality—then on the right evidence and with due process there is no reason why citizenship cannot be removed from someone whose conduct has been shown to be a threat to our national security. The Supreme Court recently did precisely that in relation to a Pakistani-British family living mainly in Pakistan.

However, I want to remind this House why the idea of rendering someone stateless is so repugnant. After the horrors of the Second World War, the international community had the opportunity of reflecting on the whole notion of the Wandering Jew—as though “wandering” was a voluntary condition—and the idea of what it meant to have no secure home and of living with the mental torture of insecurity. The international community was conscious of the many other people forced to live lives of uncertainty—because it is a weapon used by tyrants and dictators—knowing that they could be ousted at any moment because of the instability of their status. We were all alert to how such persons lacked full rights if they were rendered stateless, and that was why the convention to end statelessness came into being. Britain was one of the countries at the forefront of such moves, which is why we have been a beacon in relation to this issue.

It is interesting that Germany, reviewing its own conduct in relation to statelessness after the Second World War, has made it part of its constitutional obligations that it will never remove citizenship once it is granted. The United States, too—which, of course, became a haven for those seeking sanctuary—never removes citizenship once it is granted and believes strongly that people should not be rendered stateless.

Of course, if you are not a citizen of anywhere, you cannot have the rights that citizenships confers on you—the very right to have rights, as has been mentioned already. The presumption should always be that if you commit crime you should be tried and jailed, and that there are steps that can be taken to deal with criminality and behaviour that is a threat to states. But there is also a presumption that if something happens to you abroad you can insist on contact being made with your embassy or consulate so that your rights can be asserted. It is not just about providing protection, it is about seeking to make everyone subject to the rule of law—the thing that Britain is renowned for. The presumption should always be that law is involved in these processes.

I have repeatedly told the story of Mahdi Hashi, who had his citizenship removed while in Somalia. Two other persons from whom Britain had removed citizenship were droned—killed by the use of drones—in Somalia. We should reflect on that; it was evidence given to the Joint Committee on Human Rights by the

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UN rapporteur on counterterrorism only a week or so ago. Mahdi Hashi was advised through his parents of having lost his citizenship and that he had a month to appeal. Somalia has no British embassy. He travelled to Djibouti, where he was picked up by the secret police. On saying that he was British, he was told that inquiries had been made and that Britain was denying any obligations towards him. We washed our hands of him—Pontius Pilate lives on.

Mahdi Hashi was interrogated at length—no lawyers, no court processes. He was then handed over to the CIA and further interrogated—no lawyers, no court processes. He had a hood put on his head and was transported to the United States of America—no extradition processes. This was essentially another rendition. But Britain can now claim that we were not complicit because he was not our citizen. Is that the purpose of this change of law, that we might be able to do things that make people vulnerable and deny them their rights, creating yet more black holes where no law obtains but where we cannot be accused of complicity?

We in Britain have always claimed our commitment to the rule of law; indeed, we like to think of ourselves as having parented its existence. You might ask: is this man, who is now sitting in a jail in New York, a bad guy? I cannot tell you. No evidence is in the public domain. But it matters not whether he is a bad guy—that is the important thing to have in mind. We are supposed to believe in due process, the rule of law and international human rights. By making him stateless, we stripped him of the safeguards that any human being should expect. That is not how we normally behave. That is not an acceptable way for a civilised nation to behave.

This is an issue of profound principle and much more care needs to be taken than we currently see in considering the implications of this in terms of what message we are sending to the world, what the position is with regard to international law, what it means to make someone stateless, and what other states, where such persons end up, might feel about our having made such persons stateless. All those matters should persuade us that there should be a committee set up and that this needs much further reflection, because there are principles involved that should be seriously considered by us all because it matters about the nation that we live in.

Lord Lester of Herne Hill: My Lords, I was not able to speak in Committee but, briefly, I will make a point that I think has not yet been made.

My noble friend the Minister reminded us, rightly, of the fundamental importance of national security and of combating the evil of terrorism by all effective means. I do not think that I needed to be reminded of that but he was right to remind us all the same. Equally, the noble and learned Lord, Lord Brown, reminded us of another fundamental matter, which is the parliamentary scrutiny of draconian powers before they enter the statute book.

If I were persuaded, as the Minister has suggested, that this debate and previous debates are adequate as a substitute for effective pre-legislative scrutiny, I would not support the noble Lord, Lord Pannick, but I am not persuaded of that. The issues are extremely complicated and even though I think that I am some

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kind of international lawyer, I am certainly not going to analyse what Professor Guy Goodwin-Gill has said, even though I agree with him, or bore the House, as lawyers frequently could do, by going into a lot of technical detail.

What I want to do, and which gives rise to a question, is to deal with a point that the Joint Committee on Human Rights, of which I am a member, raised in our report and the way that the Government responded to it. In our report, we drew attention to the relevance of the European Convention on Human Rights and its various provisions, and we disagreed with the Government, whose position was that the European Convention on Human Rights had nothing to do with the issue. We went into the matter in paragraphs 45 and 46 of our report. In footnote 25 we referred to a case in which I was counsel for the applicants in the great case of the east African Asians against the United Kingdom.

That was a case which involved not national security but racism. It was a case where, to their shame, the then Labour Government persuaded both Houses of Parliament in emergency debates over three days and nights to take away from 200,000 British Asians, who were citizens of the United Kingdom and colonies, their right to enter and live in their only country of citizenship. By doing that, Parliament made 200,000 British citizens de facto stateless, even though a promise had been given to them by the previous Conservative Government that if they did not become local African citizens, they would be given the right to settle in this country. That promise was broken because of an extremely effective racist campaign mounted by Enoch Powell and Duncan Sandys, which led the Labour Government, with the support of both Houses, to pass that obnoxious legislation.

When we challenged that successfully before the European Commission of Human Rights, we relied upon two American cases. One was called Trop v Dulles. That was a case where under United States law somebody had been deprived of his American citizenship by Mr Dulles. The US Supreme Court said that under the American constitution, that was impermissible. The European Commission of Human Rights was impressed by that and it held that our Parliament had subjected British citizens to treatment that was racist and degrading.

6 pm

I say all of that—the noble Baroness, Lady Kennedy, is mistaken when she suggests that they could never have a case in America like it—because we alone among the 47 countries in the Council of Europe have no written constitution. We have no constitutional guarantees other than what is in the Human Rights Act and the Government are saying that the Human Rights Act has no application. In their response to the Joint Committee on Human Rights, they cite a SIAC decision called S1 and others v SSHD where apparently SIAC rejected the idea that Articles 2 or 3 of the convention would be engaged extraterritorially.

Let us suppose, for the sake of argument, that that decision by SIAC would apply in the context of the Bill and let us assume that the Government are right in saying that the European convention would have

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no application. We have no written constitution. We have no constitutional court that would be able to rule upon the matter. Therefore the safeguards have got to be parliamentary safeguards. Judicial review could not review the compatibility of the Bill with the convention because, if the Government are right, the convention might just as well be written in water—it has no application. That makes me consider it absolutely vital that Parliament properly considers the Bill before this can go on to the statute book, in order to make sure that it is satisfied of the constitutionality of the Bill and its compatibility with human rights.

However well briefed the Minister is, he will not be able to answer these fundamental questions, which go way beyond arguments about international law, and I would not expect him to do so. However, his amendment and even the amendment of my noble friend Lady Hamwee do not provide the degree of scrutiny that in a parliamentary democracy lacking a written constitution only Parliament itself can do. We have not had that so far. To give it to a Joint Committee of both Houses to scrutinise first and for all these issues then to be discussed before them would be a way in which within our parliamentary system—of which I am proud—we can be sure that what is happening will be fit for purpose. For those reasons, I must disappoint the Government by saying that I strongly back the amendment of the noble Lord, Lord Pannick.

Lord Paddick (LD): My Lords, I wish to speak mainly to Amendment 56. I apologise to the House that I have not spoken in previous stages of the Bill although I have been present for the overwhelming majority of the debates in this House. I rise somewhat reluctantly in support of the Government as I fully understand some of the concerns many noble Lords, including many of those on my own Benches, have on this issue. I have been struggling to balance both sides of the argument in this complex area. However, I have listened carefully to the noble Lord, Lord Pannick, and I have some issues with what he has said this afternoon.

My understanding is that the Secretary of State already has the power to revoke British citizenship where the person concerned has acquired such citizenship through fraudulent means, whether it makes them stateless or not. If it is subsequently discovered that it is simply not true that the individual is entitled, and never has been entitled, to British citizenship, can it be right that they should be allowed to keep it, just because that would otherwise make them stateless? The noble and learned Lord, Lord Brown of Eaton-under-Heywood, said this afternoon that that is understandable. The Secretary of State already has the power to revoke British citizenship from a naturalised British subject if their conduct is seriously prejudicial to the vital interests of the UK, provided that that does not make them stateless. Therefore, if it is discovered that a naturalised British subject has been engaged with the Taliban in blowing up British soldiers in Afghanistan, for example, can it be right that they should be allowed to keep their acquired British citizenship?

The new power the Secretary of State seeks through Clause 64 is the power to revoke British citizenship from a naturalised British subject if their conduct is

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seriously prejudicial to the vital interests of the UK even if it does make them stateless. If it is right that a naturalised British subject should have their British citizenship revoked because they have been engaged with the Taliban in blowing up British soldiers in Afghanistan, can it be right that they should be allowed to keep that British citizenship just because it would otherwise make them stateless?

Some groups have said—indeed, the noble Baroness, Lady Kennedy of The Shaws, for whom I have the utmost respect said it this afternoon—that it is disproportionate in any circumstances to make somebody stateless, and that it is rogue states and autocratic Governments which have used powers to make their own citizens stateless. That argument has been used to support not giving the Home Secretary these new powers. There is no power, and the Government are not seeking a power, to make stateless those born in this country or those entitled to British citizenship from birth. Here we are talking about citizenship that has been given to those individuals by the Secretary of State, which the Secretary of State is seeking the power to take away from them if—and only if—their conduct justifies such revocation.

Some groups have argued that there is a wealth of terrorism-related offences that a person can be prosecuted for as an alternative to revocation of citizenship. My noble friend Lady Hamwee has suggested that TPIMs might be another way of dealing with this issue. Clearly, where there is evidence that can be placed before a court, and the individual is in the UK and can be prosecuted, every effort should be made to prosecute them. However, there will be a small number of cases where intelligence of involvement in terrorism cannot be made public.

I have no inside knowledge of the policing of terrorism but, as an example, it is in the public domain that in the past the security services have infiltrated terrorist organisations, and others within such organisations have provided intelligence to the security services about other individuals’ involvement in terrorism. In such cases, the lives of those who provide such intelligence from within would be put at risk if that intelligence were made public. That is, of course, not to say there should be no judicial oversight of such decisions. Anyone deprived of British citizenship, as my noble friend the Minister said, has a full right of appeal and those cases involving closed material would be heard by the Special Immigration Appeals Commission. I understand that, as these appeals will be heard by SIAC, legal aid will be available to those involved. I hope that the Minister will be able to confirm this.

I also think it is important that there is further oversight of the way in which these powers, if granted, would be used. While I largely accept the case for the Secretary of State having these powers, we have seen in the past the possibility of mission creep and testing the boundaries of powers given to Ministers. That is why I am very pleased to see the Government’s amendment, at the suggestion of my noble friend Lady Hamwee, to ensure that, for example, the independent reviewer of terrorism legislation conducts regular reviews into the use of these powers.

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Even if it is necessary and proportionate to deprive somebody of citizenship so that it makes them stateless—and I accept that some noble Lords will argue that making someone stateless is disproportionate in any circumstances—some have asked what benefits this would bring. It has been argued that if citizenship is revoked while the individual is abroad, that would allow terror suspects to be loose and undocumented in whatever country they happen to be when their citizenship is revoked. Is it not the case that if they retained a valid British passport, these dangerous people are more likely to be able to travel at will to whatever country they like in pursuit of their terrorist ends? It has also been argued that it will make it more likely that dangerous people who are temporarily abroad will be sent back to the UK because they no longer have a British passport.

Contrary to the briefing provided by the Government, I accept that if someone entered a country with a British passport that is then revoked when they try to leave that country they are most likely to be sent back to the UK, if they do not or cannot regain their original nationality. This seems to be the area about which most noble Lords are concerned this afternoon: that were the UK to refuse admission, it would be a breach of the UK’s international obligations. I would very much like some reassurance from my noble friend the Minister as to what would happen in such circumstances. However, if they were to return to the UK they can be given limited leave to remain, which means that they can be subject to restrictions such as reporting any changes to their employment or address, or being required to report regularly to a police station. On the other hand, if they still hold British citizenship it would be easier for them to be involved in the development of terrorist networks, for example, or in providing support for terrorism or training or assistance in planning terrorist attacks without restriction.

Making someone stateless is a very serious matter that should be contemplated only in the most extreme of circumstances. I believe that such extreme circumstances can and do arise and that the Secretary of State should be allowed to exercise such powers without further delay, subject to the safeguards that already exist and those proposed by the government amendment.

Lord Sherbourne of Didsbury (Con): My Lords, I intervene briefly to support government Amendment 56A and Clause 64 itself. I have followed closely the important and impressive debates on this clause in Committee and today. By the way, anyone who doubts the value of the House of Lords should read those speeches, because they demonstrate clearly this House’s concern for the rights of the individual.

The issue with which this House is grappling, not for the first time, is how to strike the balance between national security and the rights of the individual, in particular the situation that can arise when the Home Secretary of the day has reason to believe that an individual poses a grave threat to the UK’s national security but when, for various reasons, that person cannot be charged and brought to court. This is a dilemma with which Parliament has had to wrestle in recent years. Where a person poses such a threat but cannot be brought to court, it is right that Parliament

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should concern itself with the treatment and rights of that individual and the practicalities, as this House did on 17 March and is doing again today. I have had to ask myself: are there any instances of a Home Secretary, whether Labour or Conservative, depriving a person of citizenship on scant evidence and without good reason?

6.15 pm

The main point that I want to make is this. Those outside Parliament—our fellow citizens—need to know that we are debating this subject because of the threats of terrorism that our country faces. As the noble Baroness, Lady Smith of Basildon, said in Committee,

“everyone in your Lordships’ House without exception wants to do all they can to protect citizens from a potential terrorist threat and activity at home and abroad”.—[

Official Report

, 17/3/14; col. 41.]

Ensuring the security of the 60 million citizens of our country is a responsibility that falls on the shoulders of the Home Secretary. It is a very heavy responsibility because we know, from what the head of MI5 has said publicly, that the security services are constantly monitoring thousands of potential terrorists. That is the background to Clause 64. It is, as I have said, a vital part of this House’s responsibility to look at what might be the impact of this clause on those individuals brought within its scope, but it is important, when we consider this clause and these amendments, that our fellow citizens clearly understand that the purpose of Clause 64 is to protect their safety and their security.

Baroness Berridge (Con): My Lords, I declare an interest as a trustee of the think tank British Future and as a member of the Joint Committee on Human Rights. In the time that has been allowed to the Joint Committee to scrutinise this legislation and whatever mechanism your Lordships’ House chooses, whether it is post-legislative scrutiny or the Joint Committee option, there are three brief matters on which I would still like to hear the comments of my noble friend the Minister. I thank him for outlining the important duties, privileges and obligations that naturalised British citizens have. As an 18 year-old on a gap year, I took what was perhaps an unwise journey to northern areas of Ghana, which were known at that time for their instability, but I had most wisely packed my British passport. When civil disturbance arose, I literally clung to my British passport, knowing that of course the embassy would help to rescue me if I needed it. At that young age, I realised what a privilege it indeed was to have British citizenship and a passport.

I will outline those three brief matters. First, much mention has been made of the potential to undermine the position of the United Kingdom in relation to human rights laws on the international stage. It is important to give two current examples. In November 2012, 31 Bahraini citizens were deprived of their citizenship for “undermining state security”. When given the opportunity to sit in front of some Bahraini politicians, I outlined the position in relation to those cases, which arose in the context of civil protest. I was met with the retort, “Well, you do this too”. “Yes”, I said, “but we don’t do it to leave someone stateless”. The second example would be that there has been much mention

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in your Lordships’ House of the plight of the Rohingya Muslims in Burma, who do not enjoy citizenship. I therefore struggle to see how representations could be so forcefully made about them being entitled to citizenship if the Burmese Government are able to use similar language to that being outlined in the legislation.

Secondly, although it may well be that this clause does not place us in breach of our treaty obligations in international law, as I understand it neither would reintroducing the death penalty, yet moving to re-enact that is not a trajectory that many of your Lordships would wish to see. One of the circumstances that were not commented on in Committee in your Lordships’ House is this situation. If it seems that we can deprive people of their nationality while they are, for instance, in Syria and do not then have to readmit them to the UK, what would happen in the unfortunate situation of having people within our borders who have managed to get some kind of visa to be in this country and are perhaps unsavoury if their country of origin deprives them of their citizenship, so that we are left with a little oasis of stateless citizens in the UK? I am slightly too young to remember properly the tit-for-tat diplomatic spats of the Cold War, but is it really too much to imagine that there could be a tit-for-tat deprivation of the citizenship of people in different jurisdictions around the world?

Thirdly, I would like to outline the impact on the next generation, which has perhaps not been fully explored in relation to this new power. There are, of course, implications for the nationality and citizenship of the children of those who have been deprived of their citizenship. I am grateful to my noble friend the Minister for clarifying that the power will not apply, as I understand it, to people who acquire their citizenship by way of registration, who are often the children of someone who is naturalised—such people who are under 18 acquire their citizenship by registration. I would be grateful if my noble friend the Minister could outline the views of the Government about the effect on the next generation of children, who potentially have parents who are stripped of their nationality. This would make contact with that parent perhaps not impossible but significantly more difficult. Perhaps we might be at risk of sending a message to those children and perhaps having the same unfortunate effect as did certain of the powers that we used in Northern Ireland when we had a similar security situation.

Baroness Smith of Basildon (Lab): My Lords, this has been a powerful debate. I am speaking to the amendment that I have been pleased to sign, along with the noble Lords, Lord Pannick and Lord Macdonald, and the noble and learned Lord, Lord Brown. There is a sharp contrast with the time which was allowed to debate this issue in the other place.

I am grateful to the Minister for his comments at the beginning of the debate. I do not want to repeat the points which have been made, particularly those made more eloquently than I could do by those with legal expertise. I want to emphasise a number of points, particularly around the issue of scrutiny, which was referred to by the noble Lord, Lord Lester. This new government clause was introduced—with other amendments—in the other place just 24 hours prior to

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Report, all to be considered in a five-hour debate. It therefore did not receive the scrutiny that such a substantial and far-reaching clause needs and deserves. In the other place the Home Secretary admitted that,

“Members have not had as long to consider it as they would perhaps have wished”.

The Home Secretary claimed to have been “incredibly generous” in repeatedly giving way to respond to MPs’ concerns and questions, although I do not think that that was a particularly wise turn of phrase. As was made clear by my colleague in the other place, David Hanson, we were seeking to ensure that the consequences of such a significant clause had been properly thought through. The response from the Home Secretary was that the Government,

“recognise that there are consequences, and they have been considered”.—[

Official Report

, Commons, 30 Jan 2014; col. 1047-48.]

However, when we debated this in Committee, the responses from the Minister did not provide your Lordships’ House with the assurance that all the consequences had been considered. The noble Lord, Lord Sherbourne of Didsbury, partly quoted my comments in Committee, and I will reiterate the same point that everyone in your Lordships’ House wants to do everything possible to protect UK citizens from potential terrorist activity, both at home and abroad.

We also have to recognise that we have international obligations in this regard, as terrorism is a global threat. We all know that Clause 64 is a response to the Al-Jedda judgment by the Supreme Court, as was referred to by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. It was clarified that the Secretary of State could not withdraw citizenship from an individual if it would leave them stateless. Clause 64 seeks to remove that barrier, and would allow the state to make an individual stateless if they are naturalised British citizens and the Government consider that they are involved with actions prejudicial to the interests of the UK. That would mean that either the former citizen remains locked in the UK, unable to leave, work or receive any support, but the Government still have obligations to that individual, or that they would be left stateless in another country and obviously not able to return.

When bringing forward such an exceptional power as this, the Government have a duty to consider the wider implications and the impact it will have. We understand that actions to tackle a threat to national or international security do at times curtail the freedom of an individual, but when such a measure is proposed it must be fully and properly considered. The process, the impact and the implications must all be fully thought through and understood.

The noble Lord, Lord Taylor, recognised the seriousness of this issue when we debated it in Committee. He said that it was right that we should have a thorough debate on the issue, after it was introduced at such a late stage and almost slipped in at the last minute in the Commons. However, the noble Lord has rejected the proposal in our amendment before the House today for scrutiny by a Joint Committee of both Houses, a dedicated committee to examine this in detail. He said that it should be debated during the passage of a Bill in your Lordships’ House.

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For a debate to be effective, there must be answers to the questions raised. We are not a debating society. As the Minister has in effect acknowledged, our role in Parliament is to scrutinise and, if necessary, revise legislation. The noble Lord, Lord Lester, said in his comments that it was a complex issue. In Committee I and other noble Lords asked a number of questions in an attempt to understand how this clause would operate in practice and the impact on the individual, on public safety and on national and international security. To be effective in that scrutiny—the very scrutiny to which the noble Lord referred when introducing his amendment and rejecting our amendment—the Government must address the points we made, and answer the questions. On this very far-reaching clause, they have failed to do so.

In Committee we sought to understand the process and the full implications. What would the process be for making an order under the clause, and what would “seriously prejudicial” mean? What criteria would be considered by the Secretary of State, and what would be the process by which she would make her decision? I raised the specific case of Y1 with the Minister. In that case it appeared that the Home Secretary did not agree with the professional advice of the security services, following discussions with Cabinet members. I was not suggesting that that was necessarily wrong, but I wanted to understand if decisions could be made on political grounds. I did not receive much clarity on these points, but the Minister replied that this would affect only a small number of individuals. I have never considered that a few people being affected by a power makes it less important to consider the implications.

The Bureau of Investigative Journalism has identified 15 cases, to which the noble Baroness, Lady Hamwee, also referred, in which the person was overseas at the time. It has also shown that the use of that power gradually increased under this Government, from roughly one case each year in 2010 to eight in 2013. However, when asked for more precise information—for example, on how many of the individuals whose citizenship was removed were in the UK and how many were outside the UK at the time the decision was made—the Minister refused to give us more detail on the grounds of national security. I am not sure that I fully understand why giving the numbers involved, rather than specific information, is a danger to national security.

The Government have clarified that this new power could be used against people whether or not they are in the country, and whether or not they can acquire another nationality. They have stated that they would expect those who can acquire another nationality to seek to do so, but have no answers on what happens if that fails. There remains a lack of clarity on what happens to people who have their citizenship removed while they are in the country. This is an important point, as this clause is designed to deal with those whose activities are of concern, and indeed those who may be a danger.

Mr James Brokenshire, the new Immigration Minister, said that in the event of a person remaining in the UK they could be granted limited leave, “possibly” with conditions, and the UK would have certain legal international obligations under the UN convention.

7 Apr 2014 : Column 1189

He expanded on that in a letter to the Constitution Committee, in which he wrote:

“For those living in the UK, we may grant another form of immigration leave, depending on the person’s circumstances … Crucially this will not attract all the privileges associated with being a British citizen; they would not be entitled to hold a British passport, to vote or to have full access to public services”.

The Minister confirmed this in writing to us after the debate. He also added that, in certain circumstances when the person cannot return to their country of origin, “it may be necessary” to provide them with exceptional leave to remain of some kind or another. Does this mean therefore that people would be trapped here, and we would not be able to deport them but would still have obligations towards them? How does that help to ensure that national security is protected?

What happens if someone is in another state when the decision is taken? What happens if they cannot be contacted? The Minister said that they would have the full right of appeal, but they cannot have this if they cannot be contacted. How can someone be notified in such circumstances, or avail themselves of any review of the decision? What about children who may be left behind? What will be the obligations of the state these children are in when their parent is made stateless? What will be the obligations of the state in which the person is made stateless?

6.30 pm

As this power will apply only to naturalised citizens, not to British-born citizens, does it not create two different classes of citizenship? The fight against terrorism is international and global, so what are the implications for national and international security in allowing terror suspects to be left loose and undocumented in whatever country they happen to be in when their citizenship is revoked? When citizenship has been withdrawn from citizens who are overseas, will the country that admitted them in good faith on a British passport be consulted or advised at any stage, or even after the withdrawal of citizenship?

The noble Lord, Lord Pannick, and the noble Baroness, Lady Lister, referred to the advice of Professor Guy Goodwin-Gill from Oxford, who is an expert on this area. His advice, which is worth repeating, is that any state that admitted an individual on the basis of his or her British passport would be fully entitled to ignore any purported deprivation of citizenship and as a matter of right return that person to the UK. The Minister’s letter to me dismissing that point admitted that there is a very limited obligation to readmit former British nationals who have become stateless after entering a foreign state, but he said that he considered it would rarely be applicable and would have very limited practical impact. Why, and in what circumstances; and does this open a decision to even greater legal challenge? The answers are neither clear nor reassuring. Aside from any legal obligation, how will such a situation impact on the UK’s relationship with that state?

We asked in Committee what discussions the Government have had with other countries about this clause. The noble Lord, Lord Taylor, did not respond to us then, but he wrote afterwards to say that the Government had not had any discussions with other

7 Apr 2014 : Column 1190

countries and they did not think that they needed to. That is exactly the kind of response that means that we need a Joint Committee to examine this properly and to address the issues to which the Government have no answers.

We did not ask questions just to have a debate in your Lordships’ House; we asked because we thought there would be answers, and we believe that we need those answers. The Government said that they had considered the implications, but they have apparently not considered the implications that we asked about. I share the criticisms of the Government’s amendment made by the noble Lord, Lord Pannick. However, in principle, we are certainly not against post-legislative scrutiny—but in addition to, not instead of, effective parliamentary scrutiny.

Our amendment is reasonable. It does not reject the Government’s proposition outright, but it demands scrutiny prior to legislation, not after legislation. If there is evidence, let a committee of both Houses examine it and come to a conclusion. If there is evidence that this would make UK citizens safer, we need the right to scrutinise that information. There are too many unanswered questions to proceed with this clause.

Lord Taylor of Holbeach: My Lords, I am sorry that the noble Baroness feels that my responses have been inadequate. It is a matter of pride that I have sought to answer noble Lords’ queries during the passage of this Bill. The noble Baroness has never implied that anything I have supplied her with has been inadequate, and I am sorry if she has taken that view.

Baroness Smith of Basildon:At all times the Minister has sought to be courteous and to give as much information as possible. However, he will recall that in Committee I asked questions and he apologised for not having available some of the information needed to answer them. It is no slight on him personally; he has made a great effort to try to answer. It is just that there have not been answers to some of the questions I have asked.

Lord Taylor of Holbeach: I have written a report on every day of this Bill, and I will be writing about today’s debate to tell all noble Lords of those things that have arisen where I am not in a position to give an answer. The noble Baroness is very generous. Indeed I do my best but there is a limited amount of time and I do not want to take up too much time on an issue that noble Lords have debated with great skill for the elucidation of the House.

As I made clear in my earlier intervention, this is an important and sensitive issue that goes to the heart of ensuring that the Home Secretary has available to her the necessary powers to respond to changes and threats to our national security. Amendments 56ZA and 56ZB were discussed in Committee, and I can assure the House that this power was drafted taking full account of the need to ensure consistency with our international obligations. The Home Secretary will personally review every case and in doing so will of course consider, in line with our obligations under the ECHR, whether

7 Apr 2014 : Column 1191

deprivation is a necessary and proportionate action in response to the conduct of the individual and the threat that they pose to the UK. I hope noble Lords will be reassured by our proposal for a statutory independent review that will be able to look at these matters as part of its scrutiny of the operation of this power.

The noble Baroness, Lady Lister, asked a number of questions. She asked whether the independent reviewer would have access to information on whether the deprivation action was taken while the person was in the UK or abroad. The independent reviewer will be provided with information on all aspects of the operation of the power, including the circumstances—

Baroness Lister of Burtersett: My Lords—

Lord Taylor of Holbeach: Perhaps I may just finish my answer. I think that it will be helpful to the noble Baroness if I do so. I will then give way.

The independent reviewer will be able to look at and will be provided with information on all aspects of the operation of the power, including the circumstances of individual deprivation decisions.

Baroness Lister of Burtersett: I am sorry to interrupt the Minister but I was not asking whether the independent reviewer would be allowed to do that once this law has come into force. I was asking the question that we have asked again and again about those who have already been deprived of citizenship. We have been told that we cannot have that information for security reasons, so the independent reviewer has suggested that perhaps he could have the information about those who have been deprived of citizenship under the existing legislation when they were abroad.

Lord Taylor of Holbeach: I see the point that the noble Baroness is making. I see no reason why not. If it has security connotations then perhaps it cannot be made public. However, our idea is that the independent reviewer should not be denied information that it considers important to perform its statutory duties as required by our amendment.

The noble Baroness asked about an example of where an individual would be deprived of citizenship on grounds of economic well-being. I replied to the noble Baroness, Lady Smith, on 26 March and a copy would have been sent to the noble Baroness, Lady Lister. In my letter I agreed that any situation which threatens vital economic assets is likely to be covered by terrorism considerations, but for that very reason we cannot rule out the possibility that it may be properly considered under this power.

The noble Baroness asked whether this goes against the UK’s international obligations to those countries that allow entry to British citizens who are subsequently deprived of that nationality. In the vast majority of cases, it does not. However, the Government note that the 1930 special protocol concerning statelessness created limited obligations in this respect. These obligations are limited to the 11 states that have ratified the protocol and apply only if certain conditions are met.

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A number of noble Lords mentioned Professor Goodwin-Gill’s paper and his illustration that it was contrary to international law. Professor Goodwin-Gill has some expertise on this topic since he was part of the legal team representing Al-Jedda, but on this topic we believe that he is wrong. He based his analysis in large part on the opinion of Judge Read in the 1955 International Court of Justice case of Nottebohm, but Judge Read’s judgment was a dissenting judgment. We cannot accept the conclusions which Professor Goodwin-Gill derived from it. There is a very limited basis for an obligation to readmit people deprived of citizenship in very limited circumstances, as set out in Article 1 of the 1930 special protocol concerning statelessness. The limited number of state parties that have ratified this convention, together with the lack of state practice conforming to its provisions by states that are not party to the convention, shows that it does not constitute customary international law.

Lord Avebury: I am most grateful to my noble friend. As he has gone into some detail on Professor Guy Goodwin-Gill’s paper, would it be possible for him to lodge a paper in the Library, commenting on all the points raised in it? The Minister also quoted the views of the UK representative when the special protocol was agreed, who was very much in support of the idea that depriving people of their citizenship while they were abroad is illegal.

Lord Taylor of Holbeach: I will be happy to do that. However, I am conscious that noble Lords have been asking for answers today and to give what my noble friend has asked for would probably take the rest of the evening. I do not intend to do that, but I will do it in writing and lodge a copy in the Library.

Lord Lester of Herne Hill: I am sorry, but a few minutes ago the Minister said something about obligations under the European Convention on Human Rights. Am I right that the Government still take the view that the convention has no application extra-territorially if the Minister takes away someone’s citizenship when they are outside the country?

Lord Taylor of Holbeach: I was coming to this. I have been asked a lot of questions and I intend to answer them. The noble and learned Lord, Lord Brown, asked whether this would affect the UK’s contribution. It may be useful to point out that the UK is not alone in proposing this approach. Belgium and Ireland, among others, provide for the prospect of making a person stateless in circumstances analogous to what we are proposing. The noble Baroness, Lady O’Loan, and the noble Lord, Lord Lester, asked about the JCHR. Last year, in S1 and others v the Secretary of State, SIAC rejected the idea that Articles 2 or 3 would be engaged extraterritorially. Even if Article 8 were engaged extraterritorially, the interference would be lawful if it was necessary and proportionate. The high threshold set out in Clause 64 means that interference would be proportionate so I regard this as a rather academic point. I hope my noble friend, who does not lack academic credentials, is prepared to accept this. This was decided in 1973. This was like the case of the people in east Africa, to which my noble friend referred.

7 Apr 2014 : Column 1193

The noble Baroness, Lady Kennedy, made a passionate speech on the evils of statelessness after the Second World War. The UN Convention on the Reduction of Statelessness was agreed in 1961. The view of the United Nations was that, in extreme circumstances, people could be left stateless, as the JCHR accepted. This proposal is compatible with that UN convention. My noble friend Lady Hamwee asked what would happen to people in the UK who were made destitute. The UK would continue to have human rights obligations towards those in the UK and could not allow them to become destitute as a result of its actions. She asked whether these individuals were exempt from leave under the immigration laws and what would happen to family members. Family members would still be able to apply for leave within the rules, including the statelessness provisions, and would not be subject to restrictions unless their conduct justified it. My noble friend Lord Paddick, in a brave and thoughtful speech, said that legal aid is allowed for the appeal process. My noble friend Lady Berridge asked whether other countries will render people stateless in the UK on a tit-for-tat basis. Other countries can already do this and those affected would be subject to our immigration rules for stateless people. This clause will not provoke extra cases because, as we have stated, it will be used only for a few extreme cases. In any event, we believe that many will go on to acquire another nationality.

6.45 pm

In answer to the comments made by the noble Baroness, Lady Smith, about the statelessness provisions, the Government have never hesitated to make people stateless through the deprivation of nationality. They do that in situations such as fraudulent applications being made. In that case, the analogous situation of what happens to children would have been exactly the same under her Government as it would be under this one. Children are protected. In response to the noble Baroness, Lady Lister, Amendment 56ZC provides for a duty to take into account the best interests of children. She extended it extraterritorially. Our writ does not extend extraterritorially. If children are abroad they are abroad and we cannot govern the grounds under which they are cared for. However, the amendment in the name of the noble Earl, Lord Listowel, to which I have put my name, provides for people in this country and it is unnecessary to repeat our responsibility in respect of children.

I turn to the matter of whether the powers should apply with an element of retrospection. I believe that those who have made the choice to naturalise and become British citizens should respect and adhere to the values and laws which they take an oath to maintain. It would be perverse if the Home Secretary was not to be able to consider the full circumstances of their conduct since taking that oath rather than consider only their actions following the coming into force of Clause 64. There can be no expectation that a naturalised person should retain their citizenship despite such abhorrent conduct, and that is not the effect of the existing powers to remove.

Amendment 57B, which provides for quarterly statistics, is adequately addressed by the government proposal for an independent review. It would not be desirable

7 Apr 2014 : Column 1194

for quarterly reports to be published, with no other context, in advance of the initial report from the independent review. The independent review will report on how often the power has been used as well as providing a commentary on how it has been applied. In addition, the Home Secretary already responds to requests for data on deprivation through Parliamentary Questions, Freedom of Information requests and the like.

In conclusion—I think noble Lords will want to move to a conclusion on this matter—this power is very narrowly drawn and is aimed at addressing a real and current threat posed by a small number of individuals. I hope noble Lords realise that the Government are committed to taking proportionate action to protect the public and removing the privileges of British citizenship from those who abuse it. In light of those points, I hope noble Lords will support the government amendment and agree not to press the other amendments that we have discussed in this group.

Lord Pannick: I thank all noble Lords who have spoken in this debate, particularly the Minister, whose door has been open throughout the passage of the Bill to all noble Lords concerned about particular clauses. He has given a characteristically full and helpful response to the amendments.

In his first intervention in this debate, the noble Lord, Lord Taylor, said that he recognises the importance of scrutiny at the earliest opportunity and that Amendment 56A therefore allows for a report one year after the passage of the Bill. The earliest opportunity for scrutiny is before we confer this power on the Secretary of State, not after we confer this power on the Secretary of State. The Minister then said that the place for proper scrutiny was in this House, not in a Joint Committee. But for this House to do its job properly depends on adequate pre-legislative scrutiny so that we have the information adequately to assess the implications of Clause 64. I am particularly grateful to the noble Baroness, Lady Hamwee, and to other noble Lords, for identifying a large number of questions that the Joint Committee no doubt will wish to consider.

The Minister also suggested that delay while we wait for a Joint Committee report might somehow be damaging. I find that very difficult to understand. Clause 64 would remove a restriction on creating statelessness, which has been part of our law since 2003. The Minister has not told us how many, if any, cases there are where the Secretary of State would wish to remove nationality on public good grounds but is currently prevented from doing so because it would cause statelessness. In any event, I do not understand—and it is plain from the debates that I am not the only the noble Lord who does not understand—how removing nationality to make a person stateless is going to assist national security by making it easier to control undesirable people or remove them from this country. That is one of the crucial questions that a Joint Committee will need to address.

In any event, a Joint Committee could report by, say, October, and if the Government see fit in the light of such a report, they can bring forward a short Bill in the next Session. The Minister cannot seriously suggest that the Queen’s Speech in June will be so full of

7 Apr 2014 : Column 1195

material that the Home Secretary will be told in the autumn, in the light of a Joint Committee report, “We’re very sorry, but there’s simply no room to come back to this matter”. Let us be realistic about this issue.

Finally, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, Amendment 56 is a modest amendment. It does not ask this House to take a final view on whether the proposed new power should be conferred on the Home Secretary. What it does is to invite this House rather to ensure that Parliament is fully informed of the benefits, if any, and the detriments, before the law is changed. Given the importance of the subject matter and the difficult questions that continue to exist as to the practical and legal consequences of the conferral and exercise of this new power, I think that that is a step that we should take to require proper pre-legislative scrutiny.

This is a matter of fundamental principle and I wish to test the opinion of the House.

6.53 pm

Division on Amendment 56

Contents 242; Not-Contents 180.

Amendment 56 agreed.

Division No.  2


Aberdare, L.

Adams of Craigielea, B.

Addington, L.

Adonis, L.

Ahmed, L.

Allan of Hallam, L.

Alton of Liverpool, L.

Andrews, B.

Avebury, L.

Bach, L.

Bassam of Brighton, L.

Beecham, L.

Berkeley of Knighton, L.

Best, L.

Bichard, L.

Bilimoria, L.

Billingham, B.

Birt, L.

Blood, B.

Boateng, L.

Borrie, L.

Bradley, L.

Bragg, L.

Bristol, Bp.

Brooke of Alverthorpe, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Butler-Sloss, B.

Cameron of Dillington, L.

Campbell of Surbiton, B.

Campbell-Savours, L.

Chandos, V.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Collins of Highbury, L.

Colville of Culross, V.

Condon, L.

Corston, B.

Craigavon, V.

Cunningham of Felling, L.

Dannatt, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Dear, L.

Desai, L.

Donaghy, B.

Donoughue, L.

Drake, B.

Drayson, L.

Dubs, L.

Dykes, L.

Eames, L.

Elder, L.

Elystan-Morgan, L.

Evans of Temple Guiting, L.

Falconer of Thoroton, L.

Farrington of Ribbleton, B.

Fearn, L.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Glasman, L.

Golding, B.

Gould of Potternewton, B.

Grantchester, L.

Greenway, L.

Grey-Thompson, B.

Griffiths of Burry Port, L.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Harries of Pentregarth, L.

7 Apr 2014 : Column 1196

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hennessy of Nympsfield, L.

Hollick, L.

Hollins, B.

Hollis of Heigham, B.

Hope of Craighead, L.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Aberavon, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Hussain, L.

Hussein-Ece, B.

Hylton, L.

Irvine of Lairg, L.

Jay of Ewelme, L.

Jay of Paddington, B.

Joffe, L.

Jones, L.

Jones of Moulsecoomb, B.

Jones of Whitchurch, B.

Jordan, L.

Judd, L.

Judge, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kerr of Kinlochard, L.

Kidron, B.

King of Bow, B.

Kingsmill, B.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkhill, L.

Knight of Weymouth, L.

Laming, L.

Lawrence of Clarendon, B.

Layard, L.

Lea of Crondall, L.

Leitch, L.

Lester of Herne Hill, L.

Liddell of Coatdyke, B.

Liddle, L.

Linklater of Butterstone, B.

Lister of Burtersett, B.

Listowel, E.

Luce, L.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

Mackay of Drumadoon, L.

Maclennan of Rogart, L.

Maginnis of Drumglass, L.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Miller of Chilthorne Domer, B.

Mitchell, L.

Monks, L.

Moonie, L.

Morgan, L.

Morgan of Drefelin, B.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Yardley, B.

Neuberger, B.

Noon, L.

Nye, B.

Oakeshott of Seagrove Bay, L.

O'Loan, B.

O'Neill of Clackmannan, L.

Pannick, L. [Teller]

Patel, L. [Teller]

Patel of Blackburn, L.

Patel of Bradford, L.

Pendry, L.

Phillips of Sudbury, L.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prashar, B.

Prescott, L.

Prosser, B.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Ramsbotham, L.

Rana, L.

Rea, L.

Redesdale, L.

Rees of Ludlow, L.

Rendell of Babergh, B.

Rennard, L.

Richard, L.

Roberts of Llandudno, L.

Rogers of Riverside, L.

Rooker, L.

Rosser, L.

Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

St Albans, Bp.

Sandwich, E.

Sharkey, L.

Sharp of Guildford, B.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Snape, L.

Soley, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Storey, L.

Strasburger, L.

Taverne, L.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Taylor of Goss Moor, L.

Temple-Morris, L.

Thornton, B.

Tonge, B.

Touhig, L.

Tunnicliffe, L.

Turnberg, L.

Turner of Camden, B.

Tyler, L.

Uddin, B.

Wall of New Barnet, B.

Warnock, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

7 Apr 2014 : Column 1197

Wigley, L.

Wilkins, B.

Williams of Baglan, L.

Williams of Elvel, L.

Willis of Knaresborough, L.

Wills, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.

Young of Old Scone, B.


Ahmad of Wimbledon, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Barker, B.

Bates, L.

Black of Brentwood, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bottomley of Nettlestone, B.

Bourne of Aberystwyth, L.

Brabazon of Tara, L.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brookeborough, V.

Brougham and Vaux, L.

Browne of Belmont, L.

Browning, B.

Burnett, L.

Buscombe, B.

Butler of Brockwell, L.

Caithness, E.

Carrington of Fulham, L.

Cathcart, E.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Courtown, E.

Crickhowell, L.

Cumberlege, B.

De Mauley, L.

Deech, B.

Denham, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Eccles, V.

Empey, L.

Falkner of Margravine, B.

Faulks, L.

Fellowes, L.

Fellowes of West Stafford, L.

Finkelstein, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Goodlad, L.

Goschen, V.

Grender, B.

Hamilton of Epsom, L.

Hanham, B.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Horam, L.

Howe, E.

Humphreys, B.

James of Blackheath, L.

James of Holland Park, B.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jopling, L.

King of Bridgwater, L.

Kirkham, L.

Knight of Collingtree, B.

Kramer, B.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Leach of Fairford, L.

Lee of Trafford, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Liverpool, E.

Lothian, M.

Lucas, L.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

McNally, L.

Maddock, B.

Mancroft, L.

Manzoor, B.

Marlesford, L.

Masham of Ilton, B.

Montagu of Beaulieu, L.

Montrose, D.

Morris of Bolton, B.

Naseby, L.

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Paddick, L.

Palmer of Childs Hill, L.

Parminter, B.

Perry of Southwark, B.

Popat, L.

Purvis of Tweed, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Ribeiro, L.

Ridley, V.

7 Apr 2014 : Column 1198

Risby, L.

Roper, L.

Ryder of Wensum, L.

Sassoon, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharman, L.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shipley, L.

Shutt of Greetland, L.

Spicer, L.

Stedman-Scott, B.

Stephen, L.

Sterling of Plaistow, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Strathclyde, L.

Suttie, B.

Taylor of Holbeach, L.

Tebbit, L.

Thomas of Gresford, L.

Tope, L.

Trefgarne, L.

Trimble, L.

True, L.

Tugendhat, L.

Tyler of Enfield, B.

Ullswater, V.

Verjee, L.

Verma, B.

Wade of Chorlton, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Walpole, L.

Warsi, B.

Wheatcroft, B.

Wilcox, B.

Williams of Trafford, B.

Younger of Leckie, V.

7.05 pm

Amendments 56ZA to 56ZD not moved.

Amendment 56A

Tabled by Lord Taylor of Holbeach

56A: Clause 64, page 52, line 2, at end insert—

“( ) After section 40A of the British Nationality Act 1981 insert—

“40B Review of power under section 40(4A)

(1) The Secretary of State must arrange for a review of the operation of the relevant deprivation power to be carried out in relation to each of the following periods—

(a) the initial one year period;

(b) each subsequent three year period.

(2) The “relevant deprivation power” is the power to make orders under section 40(2) to deprive persons of a citizenship status in the circumstances set out in section 40(4A).

(3) A review must be completed as soon as practicable after the end of the period to which the review relates.

(4) As soon as practicable after a person has carried out a review in relation to a particular period, the person must—

(a) produce a report of the outcome of the review, and

(b) send a copy of the report to the Secretary of State.

(5) The Secretary of State must lay before each House of Parliament a copy of each report sent under subsection (4)(b).

(6) The Secretary of State may, after consultation with the person who produced the report, exclude a part of the report from the copy laid before Parliament if the Secretary of State is of the opinion that it would be contrary to the public interest or prejudicial to national security for that part of the report to be made public.

(7) The Secretary of State may—

(a) make such payments as the Secretary of State thinks appropriate in connection with the carrying out of a review, and

(b) make such other arrangements as the Secretary of State thinks appropriate in connection with the carrying out of a review (including arrangements for the provision of staff, other resources and facilities).

(8) In this section—

“initial one year period” means the period of one year beginning with the day when section 40(4A) comes into force;

7 Apr 2014 : Column 1199

“subsequent three year period” means a period of three years beginning with the first day after the most recent of—

(a) the initial one year period, or

(b) the most recent subsequent three year period.””

Lord Taylor of Holbeach: My Lords, if the Opposition were prepared to accept Amendment 56A, I should be prepared to move it.

Baroness Smith of Basildon: My Lords, I am not sure whether the noble Lord has moved his amendment formally but, as the matter has been referred to a committee, should this not also be referred to a committee? It would seem more sensible to us that, if a committee were discussing something, it would then decide the nature of any review that would take place after implementation.

Lord Taylor of Holbeach: The point that I was trying to make was that, if this were to form part of the substantive Bill, it would be possible for it to be considered as part of the Government’s proposals in this respect. I do not want the House to have another vote on the issue, but I feel that this is not in conflict with the amendment successfully moved by the noble Lord, Lord Pannick. However, I am told from the Box that there is no need for Amendment 56A, so I will not move it.

Amendment 56A not moved.

Amendment 57 had been withdrawn from the Marshalled List.

Amendments 57A and 57B not moved.

Amendment 57C had been withdrawn from the Marshalled List.

Amendment 57D

Moved by Lord Marlesford

57D: After Clause 64, insert the following new Clause—

“Provision of information relating to citizenship

(1) A condition of the issue of a new passport to, or the renewal of a passport of, a British citizen by Her Majesty’s Passport Office is that the citizen supplies details of their citizenship of other countries and of passports held relating to any such status at the time of application.

(2) The bearer of a passport issued by Her Majesty’s Passport Office must supply that Office with information regarding any acquisition or loss of citizenship of another country within one month of such a change.

(3) Information gathered by Her Majesty’s Passport Office for the purposes of subsections (1) and (2) shall be made available—

(a) to the Home Secretary for consideration as part of a decision made under section 40(4A) of the British Nationality Act 1981;

(b) to immigration officers for consideration when undertaking their duties.”

Lord Marlesford (Con): My Lords, this amendment is a simple one. Its purpose is to ensure that Her Majesty’s Passport Office is fully aware of other passports that are held by an individual to whom a British passport has been or is to be issued.

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There is nothing new about this amendment: I have raised this matter in this House several times. I had convinced the previous Government to support it but, on that occasion, policy officials in the Home Office intervened to oppose it. I have had long, helpful discussions with my noble friend Lord Taylor, for whom I have the greatest affection and respect, and I believed that I had convinced him of the merit of this amendment. I had expected that it would be in the Bill, though there was obviously no commitment to it. However, once again, Home Office officials intervened to prevent it. The gentleman in Whitehall does not necessarily know best, especially when he lives in the Home Office. It is where, rather as in the European Commission, the monopoly of initiating legislation is seen as a prerogative to be carefully guarded, regardless of the merits of outside views. In the Home Office, new thinking is successfully repelled by the three initials—NIH. I remind the House of Margaret Thatcher’s adage: “Officials advise, Ministers decide”. However, sometimes Ministers need parliamentary help in so doing, especially from your Lordships’ House.

I have had a couple of earlier battles. Eventually, I won them both. The first one took 10 years. It was to set up a national electronic register of firearms. Parliament passed my amendment on that in 1997. The Home Office decided to stonewall it for 10 years. Minister after Minister in successive Governments backed me. Eventually, the Home Office capitulated and the electronic firearms register is today in full and effective use. The second battle, during which I introduced a Private Member’s Bill in 2011, was to secure the removal of those protestors in Parliament Square who hogged the space by camping, preventing access for others. The Government eventually agreed the amendment and put it in their own legislation. That area is now again attractive and protestors can still protest.

My amendment on passports is extremely simple. It intrudes on no one’s rights and the cost would be negligible. I emphasise that I am well aware, as are your Lordships, that, as passports come under the royal prerogative, Her Majesty’s Government already have extensive rights in setting rules and practices in relation to them. However, there is a serious gap in their practice, of which the security forces warned me more than five years ago. Successive Governments have for years and years tried to introduce an electronic border system so as to be able to scrutinise and record every passenger who enters or leaves the UK. It is obvious that without such a system it is impossible to keep track of those who have been given leave to enter for a limited period, let alone get a handle on those who wish our country ill or whose presence is not conducive to our national security. Although entry scrutiny has greatly improved, it is still not complete, and exit scrutiny is hardly under starter’s orders. It still depends largely on the airlines, shipping lines and railway ticket offices. Only a few countries, such as the USA, have put in place full checks on those departing the UK, if they intend to enter the USA.

Those who wish our country ill, by which at present I obviously mean primarily those Islamist jihadists who have demonstrated their ruthless determination to use all the methods open to terrorists, may hold other passports in addition to their British passports.

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They can travel in and out of the country with their British passports and it is very hard for the security services to track them when they use their other passports once they are abroad. That has been shown to be the case and has been referred to, and people are amazed that what I am trying to achieve by this amendment does not already exist. I have discussed it with senior serving police officers, who told me that they believed that it was already in force and were amazed that it was not. However, it is not.

To make the administration simpler, my amendment would apply initially only to new passports and the renewal of passports, which has to happen every 10 years. In due course, it would apply to all British passport holders. I emphasise that my amendment does not in any way prevent, threaten or reduce the right of British passport holders to hold as many other passports as they can acquire. Therefore, in a sense, it is very different from the amendments that we have just discussed. It is absolutely the opposite. It is a fully libertarian amendment. I believe that it would be a major contribution to ensuring that our borders are fully protected. It would mean that when a person presents a British passport at immigration control, the details of other passports held would show up on the scan. Indeed, once the British passport holder had recorded the fact that they had other passports, if those other passports were used, again, the scan would show the corresponding information about a British passport, so the measure is logical and straightforward.

The fact that this measure does not exist was emphasised in January 2009 in a reply given by the noble Lord, Lord West, the then Home Office Minister. The noble Lord told me last week that he was very sorry that he could not be here tonight to support my amendment. When asked how many British passport holders also held passports of other countries, the noble Lord had to reply that the “information is not available”. That was an astonishing situation. However, it is still the situation. It is high time that we encouraged the Home Office to close this gap in our defences. I beg to move.

7.15 pm

Baroness Smith of Basildon: My Lords, I have very little to say on this, as it is not something on which I have a great deal of knowledge. The issue would have benefited from debate in Committee. I understand why the noble Lord did not bring the amendment forward in Committee, although I think he probably wishes that he had done so. We would have welcomed a debate on it. I know of the noble Lord’s persistence on issues. He and I have discussed issues such as litter previously and I look forward to him coming back to that matter as well.

However, I would be interested to hear the Minister’s views on this. From what the noble Lord, Lord Marlesford, has said, he expected this issue to be in the Bill. I think he thought it was agreed that it would be included in the Bill but it is not. I hope that the Minister can enlighten us on that, on whether the issue is being considered by the Government and on their reasoning in relation to it. That would be extremely helpful for this debate.

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Lord Taylor of Holbeach: My Lords, I thank the noble Baroness and, of course, I thank my noble friend Lord Marlesford. He is patient, but I think he is also a realist. I think he understands that he may have been too optimistic in expecting this measure to be included in the Bill. However, some of the points that he mentioned in his speech, and which are referred to in the amendment, are very much sentiments that we share. I share his aim of bringing offenders to justice and fully support closing down any avenue that could impact on our ability to prevent and detect crime. However, I hope that I can explain to the noble Baroness and to my noble friend why legislation in this area is not necessary and would not be beneficial to the Home Office.

Her Majesty’s Passport Office directly contributes to the Home Secretary’s key aims of securing borders, tackling terrorism and reducing crime. It does this through its public protection strategy and by sharing data and intelligence with other parts of the Home Office and other agencies. Access to personal data for the purposes set out in subsection (3) of the proposed new clause is already permissible.

My noble friend has suggested that this passport information could be made available for deprivation decisions under the proposed power in Clause 64, on which we have just had a Division. This would not significantly improve the evidence base for these sorts of deprivation decisions. The Home Office retains information regarding an individual’s previous recorded nationality or passport from their immigration records and will undertake research to determine these facts. Within the new power, the Home Office will also consider the ability to acquire a former, or another nationality, although this will not be a bar to action, as I said in moving a previous amendment. We would not necessarily rely on information provided by the individual, who may seek to benefit from renouncing or not declaring other passports or nationalities.

My noble friend has also suggested that information collected could be made available to immigration officers for consideration when undertaking their duties. Immigration officers already have powers to require a person to furnish any information that is relevant to an examination, which may include details of dual nationality where necessary and appropriate.

Her Majesty’s Passport Office does not collect data on the number of passport holders who have a second nationality. My noble friend Lord Marlesford is aware of that. The passport application, however, requires all customers to submit any sort of passport, British or otherwise, at the point of application. That information is collected to help to confirm identity and is recorded on the person’s UK passport record. HM Passport Office receives about 6 million passport applications a year from domestic applicants. It receives a further 380,000 applications from overseas. Because of the smaller quantity involved, HMPO has been able to estimate that about 50% of overseas applications may involve applicants who hold dual nationality.

HM Passport Office is required to gather information that is relevant solely to the passport application. The issue of dual nationality is not directly relevant to the UK passport application process, because a person is not prevented from having another nationality under

7 Apr 2014 : Column 1203

UK law. Collecting data for purposes other than the issue of the passport would require HM Passport Office to change its published data-sharing principles and to consider the possible impact on the exercise of the royal prerogative. Furthermore, HM Passport Office is not permitted to use the passport fee to subsidise the collecting of data for a purpose that is not relevant to the issue of the passport. The agency is required to charge applicants a fee that covers only the cost of the issuing of passports.

In any event, I am not convinced that establishing and maintaining such a database would provide any significant benefit. We already require existing and previous passports to be submitted at the point of application. Information is also held on the nationality of persons who have registered or naturalised as British citizens. Gathering information on dual nationals simply because they are dual nationals would therefore be of very limited value. It would be disproportionate, as there would be no specific benefit either to support an application process or to assist in preventing and detecting crime.

However, possession of another passport is of interest to HM Passport Office for the identity reasons that I have given above. In considering the amendment, I have asked that we look at the benefits and consequences of placing a requirement on British passport holders to submit to HM Passport Office, during the lifetime of their British passport, any new, renewed or replacement passport issued to them by the country from which they hold dual nationality. I will write separately to my noble friend when we have considered this further.

I have taken the opportunity of providing your Lordships with a detailed response to this amendment because the noble Baroness said that she would like to hear the reasoning behind the Government’s position. I hope that my noble friend will appreciate that I have been fuller than I might have been. This very much reflects the seriousness of the issues that he has raised today and previously in the House—he does the House great service by doing so. However, I am satisfied with the existing processes to record dual nationality and passports when required and that, importantly, mechanisms are in place to share those data with law enforcement agencies, including border staff. So, to some degree, we have met the objectives of his amendment. I hope that, with that clarification, my noble friend will withdraw his amendment.

Lord Marlesford: My Lords, I am most grateful to the Minister for what he has said. It does not answer my amendment, although I suppose that there is an indication that the Home Office is tiptoeing towards doing the sensible thing. I shall certainly continue to press this. The next time that there is relevant legislation, I shall attach this amendment to it. I hope that we will have a strong and full debate in Committee on this because I am certain that my proposal is simple, feasible, fully in accordance with freedom and would make a very useful additional weapon to ensure that our borders are properly policed. The information that led me to bring this forward originally was good information, from those who are responsible for the practical methods of protecting our national security. I believe that this can be done.

7 Apr 2014 : Column 1204

My noble friend mentioned the possibility of non-compliance and concealment. There is a simple remedy for this. If someone, in applying for a British passport or a renewal, with the requirement that they disclose other passports that they hold, fails to do so, it is obvious that they have not complied with their obligation in getting the British passport and it could immediately be cancelled. That would be an easy and satisfactory penalty for non-compliance.

I believe that my proposal is both needed and practical and I shall return to it. However, in the mean while, I withdraw the amendment.

Amendment 57D withdrawn.

Amendment 57E

Moved by Lord Avebury

57E: After Clause 64, insert the following new Clause—

“Descent through the female line

(1) Section 4C of the British Nationality Act 1981 (acquisition by registration: certain persons born between 1961 and 1983) is amended as follows.

(2) In subsection (3A)(a), after “father,” omit “and”.

(3) In subsection (3A)(b), at beginning insert “where material,”.

(4) In subsection (3A)(b), at end insert—

“(c) where material—

(i) the applicant’s mother or father (“the parent in question”) would have acquired citizenship by descent from a mother on the assumption that, as applied to the parent in question, section 5 or 12(2) of, or paragraph 3 of Schedule 3 to, the 1948 Act (as the case may be) provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father, and references in that provision to a father were references to the parent in question’s mother, or

(ii) the parent in question would have acquired a nationality status by descent from a mother on the assumption that, as applied to the parent in question, a provision of the law at some time before 1st January 1949 which provided for a nationality status to be acquired by descent from a father provided in the same terms for its acquisition by descent from a mother, and references in that provision to a father were references to the parent in question’s mother”.

(5) In subsection (3B)(a), after “mother,” omit “and”.

(6) In subsection (3B)(b), at beginning insert “where material”.

(7) In subsection (3B)(b), at end insert—

“(c) where material, the parent in question would have acquired a nationality status by descent from a mother on the assumption that, as applied to the parent in question, a provision of the law at some time before 1st January 1949 which provided for a nationality status to be acquired by descent from a father provided in the same terms for its acquisition by descent from a mother, and references in that provision to a father were references to the parent in question’s mother”.”

Lord Avebury: My Lords, this amendment deals with persons born abroad prior to 1983 who would have been British today if they had had a paternal grandfather born in the UK, or who would have been entitled to become British citizens by registration today if they had had a maternal grandfather born in the UK, instead of a paternal grandmother or maternal grandmother so born.

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Before 1983, a person born abroad to a British father automatically became a British citizen by descent. In certain cases, the children of a citizen by descent also became citizens by descent, automatically or conditionally. So, for example, a person born outside the UK and colonies or, before 1949, outside Her Majesty’s dominions, and whose father was also so born, was a citizen by descent if his paternal grandfather was born in the UK. However, a person born abroad to a British mother and a foreign father had no right to UK citizenship, until this anomaly was dealt with for the first generation in the Nationality, Immigration and Asylum Act 2002 by the insertion of Section 4C in the British Nationality Act 1981.

However, there remains discrimination in the next generation. A person born abroad before 1983, whose maternal grandfather was born in the UK, so that her mother born abroad was also British, has access to British citizenship through registration under Section 4C. Yet the person whose maternal grandmother was born in the UK, and whose father or mother born abroad did not acquire British citizenship, has no right to UK citizenship. To put it simply, there is discrimination in our law according to whether your grandfather or grandmother was British by birth, all other circumstances being the same.

For this reason, the UK has had to enter a reservation to our ratification of the Convention for the Elimination of All Forms of Discrimination Against Women, Article 9(2) of which provides that:

“States Parties shall grant women equal rights with men with respect to the nationality of their children”.

Our reservation says that the UK’s acceptance of Article 9 shall not,

“be taken to invalidate the continuation of certain temporary or transitional provisions which will continue”,

beyond 1 January 1983. My noble friend would probably agree that a reservation which has lasted for 31 years cannot rightly be described as temporary or transitional, and that our commitment to gender equality is incompatible with the existence in our nationality law of a provision, the removal of which is unlikely to affect more than a few people. I beg to move.

7.30 pm

Lord Taylor of Holbeach: My Lords, I am aware that my noble friend has long campaigned about the citizenship rights of children of British mothers, and indeed he was involved in getting us to where we are today in having a route for those born before 1983 to acquire the status that they would have had had women been able to pass on citizenship in the same way as men. However, as my noble friend will recognise, nationality law is complex and it is not straightforward to legislate to cater for all the anomalies that exist.

Before I discuss the amendment, noble Lords will remember that my noble friend introduced an amendment in Committee concerning the citizenship position of illegitimate children of British fathers. I committed to consider the matter further. I have not forgotten. It is in hand and I am continuing to look at this in conjunction with my noble friend. He will have seen our first two attempts to deal with this matter and he can be assured that yet another, more straightforward

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version will be with him shortly. The intention is that an amendment on the issue will be brought forward at Third Reading.

The amendment proposed by my noble friend today seeks, as he said, to amend Section 4C of the British Nationality Act 1981 to allow a person to acquire British citizenship through their grandmother if they would have been able to do so had women been able to pass on citizenship in the same way as men. I understand that citizenship could normally be passed on for one generation born overseas but that there are a limited number of cases where a person could acquire citizenship on the basis of their grandfather’s citizenship. An example of this might be where the grandfather was born in the UK and either his child or grandchild was born in a country, such as a UK protectorate, where the Crown exercised extraterritorial jurisdiction.

Although I recognise what my noble friend is trying to achieve here, I reiterate the point that was made when this issue was debated in the past: we can only go so far to right the wrongs of history. The original intention of Section 4C was to cater for the children of UK-born women, but the current legislation affects all children of British women. However, we think that there would be difficulties in extending this further to cover the grandchildren of British women as that could result in even more complexities. I think that my noble friend will recognise the complexity of the law in this area.

We recognise that there are some people who acquired citizenship through a grandfather and others who could not do so through a grandmother. However, where families have maintained a close and ongoing connection with the UK, those grandchildren could have acquired British citizenship through another route, such as registration or naturalisation based on a period of residence here. Those whose parents have never lived in the UK and have not established their own connections here are likely to have the citizenship of the country of their birth or residence.

I know that this will be disappointing to my noble friend but I cannot accept his amendment. However, I thank him for bringing it forward and for giving me an opportunity to explain the Government’s position.

Lord Avebury: My Lords, I recognise the Minister’s phrase about not being able to rectify all the wrongs of history but I do not agree with that expression. I think that we ought to remedy the wrongs of history and this would have been an excellent opportunity to do so in the case of what I think my noble friend acknowledges would be a very small number of people. However, I also recognise the realities of the situation—that, unlike the two previous amendments on which there were Divisions, I would not be so successful if I were to seek the opinion of the House.

Therefore, I will withdraw the amendment but, first, I should like to say how grateful I am to my noble friend the Minister for what he said about the amendment to enable illegitimate children born before 1983 to acquire British citizenship in circumstances where they would already have been able to do so if they had been legitimate. I hope that in our final draft, following the previous two, which the Minister mentioned, we will

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give the Secretary of State discretion to waive requirements that may be imposed on a parent in the event of the parent being unco-operative or no longer able to fulfil the requirement by reason of incapacity or death. I am also concerned that in the final draft we should avoid any ambiguity between registration and consular registration and avoid imposing any consular registration requirements which the parents of an illegitimate child might not have met, bearing in mind the stigma attached to illegitimacy in those days.

When my noble friend comes to produce the third draft at Third Reading, I should be most grateful if those points could be borne in mind. Meanwhile, I beg leave to withdraw the amendment.

Amendment 57E withdrawn.

Amendment 58

Moved by Lord Taylor of Holbeach

58: After Clause 68, insert the following new Clause—

“Duty regarding the welfare of children

For the avoidance of doubt, this Act does not limit any duty imposed on the Secretary of State or any other person by section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children).”

Amendment 58 agreed.

Clause 71: Orders and regulations

Amendment 59

Moved by Lord Taylor of Holbeach

59: Clause 71, page 56, line 5, at end insert—

“(ca) the first regulations under section 49(1);

(cb) the first regulations under section 49(5);

(cc) the first regulations under section 50(3);

(cd) the first regulations under section 50(4);”

Lord Taylor of Holbeach: My Lords, the amendments in this group are government amendments, responding to the parts of the Bill dealing with sham marriages. They respond directly to the recommendations made by the Delegated Powers and Regulatory Reform Committee in relation to Part 4 of the Bill. I thank the committee for its careful consideration of the issues raised by these powers.

Part 4 of the Bill will establish in England and Wales a new referral and investigation scheme aimed at tackling sham marriages and civil partnerships entered into for the purpose of circumventing the UK’s immigration controls. Under the scheme, all notices of marriages and civil partnerships referred to the Home Office will be considered for investigation.

Clause 49 provides the basis for the conduct of an investigation into a referred marriage or civil partnership where the Secretary of State has reasonable grounds to suspect that it is a sham and decides to investigate. Clause 50 makes further provision for the basis on which such an investigation will be conducted.

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Clauses 49 and 50 provide for regulations to be made by the Secretary of State relating to the investigation of a proposed marriage or civil partnership under the scheme. These regulations will set out the requirements with which the couple must comply as part of the investigation. It will be necessary for the couple to comply with these requirements in order to complete the marriage or civil partnership notice process.

The committee is right to point in particular to the significance of the implications arising from non-compliance with an investigation. A couple failing to comply with an investigation will not be able to marry or form a civil partnership on the basis of that notice, and will have to give notice again if they still wish to marry or form a civil partnership. The committee recommended that the affirmative procedure would be appropriate for regulations made under Clauses 49 and 50.

We accept that it would be appropriate for the first set of regulations made under each of these powers to be subject to the affirmative procedure, and this is provided for by Amendment 59. This will enable both Houses to give full consideration to the substance of the regulations when the referral and investigation scheme is established. However, we do not consider that the affirmative procedure is appropriate for subsequent changes to the regulations which may be necessary after the scheme has been implemented. To require a debate in both Houses would be unnecessarily burdensome, as any such changes are likely to be minor.

Paragraph 2 of Schedule 6 provides for the disclosure of information by registration officials to the Secretary of State and other registration officials for immigration purposes, such as preventing immigration offences. The Secretary of State may by order specify further immigration purposes to enable the disclosure power to keep pace with developments in the law and in operational requirements.

Clause 53(6) makes equivalent provision where the referral and investigation scheme and these information-sharing provisions have been extended to Scotland and Northern Ireland by an order under Clause 52. The committee’s view was that these powers are similar to the power to extend information-sharing contained in Section 20 of the Immigration and Asylum Act 1999, which is subject to the affirmative procedure. The committee has therefore recommended that they should be subject to the affirmative procedure. We have accepted the committee’s recommendation. Amendments 60 and 61 provide for the order-making powers under paragraph 2 of Schedule 6 and Clause 53(6) to be subject to the affirmative procedure. I beg to move.

Amendment 59 agreed.

Amendments 60 and 61

Moved by Lord Taylor of Holbeach

60: Clause 71, page 56, line 6, at end insert “or (6)”

61: Clause 71, page 56, line 9, at end insert—

“(g) an order under paragraph 2(3)(e) of Schedule 6.”

Amendments 60 and 61 agreed.

7 Apr 2014 : Column 1209

Clause 72: Commencement

Amendment 62

Moved by Lord Roberts of Llandudno

62: Clause 72, page 56, line 41, at end insert—

“( ) Section 1 and Part II of this Act shall come into force on a day to be appointed, that day being no earlier than the day on which an order made by the Lord Chancellor under section 9(2)(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in respect of civil legal services in connection with removal under section 1 and appeals under Part II comes into effect.

( ) The order must make provision for persons under 25 who entered the United Kingdom as a child.

( ) For the purposes of this Part, “child” means a person under 18.”

Lord Roberts of Llandudno (LD): My Lords, in speaking to the amendment I will remind noble Lords how it concerns the removals and appeals provisions of the Bill and how they impact on people, including children and young people, who have no access to legal assistance.

Amendment 62 seeks to insert a sunrise provision in Clause 72. It provides that Clause 1 on removals and Part 2 on appeals cannot come into force until an order has been made dealing with legal aid for affected cases. This means that we will have to make sure that legal aid is extended and not reduced, and that it will make particular provision for people under 25 who entered the UK as minors. It is essential to see the removal provisions in Clause 1 and the appeals provisions in Part 2 in the context of diminishing access to legal assistance for those whom the Bill will affect.

The Government have stressed in relation to Clause 1, including in their fact sheet on the clause, that people subject to removal will be advised to seek legal advice as early as possible. This, however, will not be much use if people cannot obtain that advice because, first, they cannot afford to pay a lawyer; secondly, because immigration cases are not in the scope of legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012; and, thirdly, because they do not meet the Government’s proposed residence test for civil legal aid, if that test is introduced as planned in August of this year.

We are talking about people being forced to leave the UK and the division of family members, one from the other, without their having the benefit of a lawyer to advise them on their and their family’s rights, including the rights of any affected children. This is about young people who have grown up in the UK, including young care leavers, being deported to a country they do not know without an appeal right and without even having the chance to speak to a solicitor about their case.

The Coram Children’s Legal Centre has done a great deal of work on this and has demonstrated why legal aid should be available. It told me that it had worked on cases where a child has been brought into the UK as an infant and has later been taken into care. The child has indefinite leave to remain until it reaches the age of 18 when, at that age, the Home Office tells them that it intends to revoke their leave and to deport them to a country of which they have no memory.

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What of children such as these? A child’s immigration case based, for example, on the child having lived for most of their life in the UK, will attract no legal aid even if the case goes all the way to the Supreme Court. A child with no lawful leave will be excluded from legal aid by the residence test, even if that child is only seven years of age. Proposals to restore legal aid for children’s welfare under Sections 17 and 20 of the Children Act made in the Government’s response to the Joint Committee on Human Rights are welcome but they fail to address a core problem. A young person can be deported before there has been any opportunity for judicial oversight of the Home Office’s decision. They do not get legal aid for their immigration case, nor will they get legal aid for any judicial review. The issues at stake in removal and deportation cases are of the utmost importance in the lives of children, young people and families. Legal aid should be available for such cases.

The Government have said that there is the option of applying for exceptional funding but, after speaking to the Minister for Justice, the right honourable Simon Hughes, I understand that very few of such applications are successful. I was shown the paperwork, the application form that a young person has to fill in for exceptional purpose funding. It consists of 14 pages. I have looked at the 14 pages and I have looked at the Bill. I am not a lawyer by any means, but if the application form is so confusing and difficult for us to understand, how can you expect a young person of 18 years of age, who has no legal training, to stand up and speak for themselves because there is no legal aid available and a lawyer cannot be provided. The Government must look after all young people who are in need of legal assistance. If they do not get it, then British justice affecting young people is breaking down.

There is to be a review of the Bill after between three and five years. I would like that to be sooner. I would like to see how it is proceeding and for it to be kept under constant review.

I would also like to see more generous exceptional case funding. The Government expected about 7,000 cases and instead they got about seven. There has been wrong judgment right from the start. How many cases were expected and how many arose? We need a review far sooner than three or five years.

The Bill and its amendments are so complicated that this 14-page application form should be looked at immediately and simplified so that a person facing extradition will be able to understand exactly what it means. If my three requests are granted—a review before three years, more generous exceptional case funds and a simplified form—it would be a tremendous step forward. I beg to move.

Lord Taylor of Holbeach: My Lords, Amendment 62 seeks to amend Clause 72, which provides for the commencement provisions in the Bill. It requires the Government to make an affirmative order under Section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—or LASPO, as we refer to it in the House—so that removals and all appeals are eligible for legal aid where someone is under 25 and entered the UK as a child. We debated this amendment in Committee when my noble friend Lord

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Attlee explained that this amendment would stall and potentially block changes to removals and appeals in the Bill.

The scope of the legal aid scheme was approved by Parliament and settled by LASPO. The Government have recently consulted on introducing a residence test for civil legal aid. Parliament will have the opportunity to consider these proposals shortly. However, we have no plans to extend the scope beyond the high-priority matters on which Parliament has agreed.

In Committee, the noble Baroness, Lady Lister, who is not in her place at the moment, referred to the JCHR report on the residence test. She noted that the committee concluded that the Government’s response to that report had not gone far enough. With respect, we do not agree with that comment. The Government considered the JCHR report carefully and in response modified the exceptions to the residence test, including for children. These changes ensure that the test is fair and that legal aid is targeted where it is justified while achieving the essential policy aim of targeting legal aid at those with a strong connection to the UK. We do not accept that the residence test would result in any contravention of our domestic and international legal obligations, including our obligations under the UN Convention on the Rights of the Child.

While this amendment is well intentioned, it is unnecessary. The vast majority of unaccompanied children are asylum seekers and will receive legal aid. Victims of trafficking also receive legal aid, and indeed we discussed their status earlier today. Children or young adults who are not unaccompanied will have the support of their family in the UK.

In Committee, my noble friend Lord Roberts raised concerns about the number of successful applications for exceptional funding. The fact that a lower-than- forecast number of successful applications has been made does not indicate that the system is defective. It is important to note that estimates made about volumes are precisely that—estimates. The fact that the volume of applications has been lower than forecast is clearly also relevant to the number of applications granted. Legal aid is and will remain available for the highest- priority cases such as asylum seekers and advice and damages claims for victims of trafficking. Children and those who entered the UK as children who fall into one of these groups are eligible for legal aid. It is right that these limited funds should be targeted towards them. Therefore, it is only those children and young adults who do not fall into one of the high-priority groups who will not be eligible for legal aid.

My noble friend asked why the exceptional funding mechanism is so bureaucratic. We do not accept that the system is overly bureaucratic. There is a bespoke application form to fill in which is designed to help providers present the relevant information. In addition, clients can ask for a provisional determination concerning their case directly from the Legal Aid Agency if they wish to do so. I appreciate the enthusiasm with which my noble friend has addressed these issues, but in the light of my points, I hope that he will feel able to withdraw his amendment.

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Lord Roberts of Llandudno: I thank the Minister for his response. He is always cheery and helpful, but he has not given me the answer I was looking for. I just hope that the Minister, possibly with the Ministry of Justice, will look at this again. We have heard stories of young people reaching the age of 18 and then facing possible deportation. There may be a dawn raid, but I hope that the age of the dawn raid is over. There are stories of youngsters aged 18 bedwetting, which is very embarrassing. I heard of one lad who would push the wardrobe up against the bedroom door so that if anyone came in the early hours of the morning to arrest him, it would be that bit more difficult for them to do so. The worst story I heard was that of one lad who had fashioned a noose and hung it over his bed, so that if anyone came, he could take that way out.

Please can we keep this situation under constant review and possibly look at the more extreme cases—I admit that these are the more extreme ones—so that every child feels that he or she is not alone? They need to know that people are there who are ready to work with them. I hope very much that by talking to the Ministry of Justice and the Home Office, we can come up with some sort of solution. Sadly, once again I beg leave to withdraw the amendment.

Amendment 62 withdrawn.

Clause 73: Extent

Amendment 62A

Moved by Baroness Butler-Sloss

62A: Clause 73, page 57, line 7, after “58” insert “, section (Child trafficking guardians for all potential child victims of trafficking in human beings)”

Amendment 62A agreed.

Arrangement of Business


7.55 pm

Baroness Anelay of St Johns (Con): My Lords, before the Clock starts ticking for the debate in the name of the noble Lord, Lord Dannatt, perhaps I may assist the House with advice about timing. Because the Question for Short Debate is now last business, according to the rules set out in the Companion that means that instead of just one hour, he is allocated one and a half hours. I know that this will bring joy to some colleagues because it means that those who are to speak from the Back Benches and the Opposition Front Bench spokesperson will now have five minutes in which to speak before they exceed their allotted time. I know that this will not bring joy to all because they have worked their evening out on the basis that the time this debate would be held was 7.30 pm to 8.30 pm. I also ought to say that there is a speaker in the gap, who knows that the maximum time to speak is four minutes. There is a mood around the House, I think, that briefer is better, but I am sure that as always it will be a quality debate.

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Armed Forces

Question for Short Debate

7.56 pm

Asked by Lord Dannatt

To ask Her Majesty’s Government what is their assessment of whether they have sufficient manpower and the right balance of regular and reserve forces within the Armed Forces in order to meet the United Kingdom’s current national and international responsibilities and requirements.

Lord Dannatt (CB): My Lords, in opening this evening’s short debate, perhaps I may first thank those noble Lords who are taking part, albeit somewhat later than we had anticipated, and other noble Lords who have indicated their interest in this question but who are not able to be in their places. To me this level of participation underlines the importance of the matters we are considering.

I am also aware that this short debate comes hard on the heels of the Defence Reform Bill, which has now passed all its stages in your Lordships’ House, and that the question of manning the Army Reserve was the subject of some discussion. Indeed, I spoke on the subject during the Committee stage and was minded to table an amendment at the Report stage. However, I make no apology for returning to this key topic, and I do so in the context of both regular and reserve manning, not just for the Army but for the Royal Navy, the Royal Marines and the Royal Air Force, too.

I believe that this subject can be properly addressed only if it is done so in its full context. It seems to me that, when the coalition Government took their decisions on the size and shape of the Armed Forces at the time of their strategic defence and security review in 2010, they did so against the background of the way the world looked then and in the midst of the economic crisis; we were in the early days of the current age of austerity. In headline terms, a decision was taken to prioritise defence equipment over manpower—a not altogether unreasonable decision given the long lead times in defence procurement and the need to preserve British jobs in the defence industries. However, in order to balance the books, manpower reductions of 30,000 personnel across the three armed services were required, which inevitably would fall most heavily on the Army, but they also fell with considerable impact on the other services, in particular on our ability to man the fleet both now and in the future, especially when the Queen Elizabeth class aircraft carriers and the new offshore patrol vessels come into service.

As regards the Army, the mitigation of the risks inherent in a 20,000 cut in Regular Army manpower would be the recruitment and training of an Army Reserve of 30,000, giving an overall integrated Army manpower strength of 112,000. Put like that, this looks to be a reasonable outcome, but doubt has remained as to whether the Regular Army component of just 82,000 of that overall total is sufficient for the nation’s needs, and whether the target of 30,000 trained reservists to round out Army 2020 is even achievable.

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When this policy was announced, it was originally stated that the major draw-down of regular manpower would not occur until the strength of the reserves had risen to or near their projected target. However, after a reworking of the finances within the MoD, this policy was changed, and in the case of the Army the draw-down to 82,000 regulars has now been very nearly completed with little upward shift in reserve manning. Noble Lords have observed previously in this House that this shift of policy carries an acknowledged level of risk. Is the Minister confident that this risk is being managed and mitigated, both for now and in the foreseeable future?

I raise this question at this time because, with the planned culmination of our operations in Afghanistan—linked to a general feeling of war weariness and war wariness given our recent experiences in both Iraq and Afghanistan—it could be argued that concerns about the size of the Army today are theoretical rather than immediate. However, that view overlooks the current strategic landscape. While there is neither a logic nor an appetite for intervention in Syria, nor a treaty obligation requiring military intervention in Ukraine, both situations stand as stark examples of how the strategic landscape can change. Predicting the future is notoriously hard, and strategic shocks happen: the invasion of the Falkland Islands, the fall of the Berlin Wall, the Iraqi invasion of Kuwait and 9/11 were all unpredicted events that had major consequences for our defence and security policies and capabilities. It is often said about predicting the future that the trick is not to be so far wrong that, when the future reveals itself, you cannot adapt quickly to the new circumstances. Circumstances have changed since 2010, and are changing at the present time. They are plain to see, provided that there is a willingness to look.

I believe that these strategic changes change our previous risk calculations. The Russian takeover of Crimea may not have been to President Putin’s timing, but it certainly suits his agenda and aspirations. Whether his ambition reaches into eastern Ukraine or elsewhere only he knows, but with a Russia resurgent both in confidence and military capability in many observers’ judgment this is a poor moment for the US-led West to be weak in both resolve and muscle. Diplomacy and economic sanctions may for now be the right response to President Putin over Ukraine, but he will look through those things to see from where the real check on his actions might come. Russia has long been the ally of Syria. Mr Putin will have seen the UN and the EU virtually powerless to impose their will on President Assad, and he will be further encouraged. Parallels with earlier periods of history might or might not be useful, but it can be argued that uncomfortable shadows of the 1930s are starting to become visible.

Meanwhile, with economies still struggling to recover from the epic downturn in 2008, there is a lurking temptation to curb public expenditure further, as trailed by the Chancellor of the Exchequer in his recent Budget speech. However, to remove further resources from defence would be sending exactly the wrong message at this time. On the contrary, there is a growing argument that the international landscape is more challenging than in 2010 and that we should consider making a statement that greater military

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capability must underpin our diplomacy and the other instruments of our foreign and security policy. The projected 1% uplift in defence equipment procurement spending from 2015, though welcome, will do nothing to improve regular defence manning levels, which, without a further uplift in spending, will in all probability face further contraction. Such a conclusion is mathematically almost inevitable.

Furthermore, there is genuine concern as to whether we can in fact recruit and train 30,000 members of the Army Reserve. Although we are only some six months into a five-year programme of recruitment, I am not alone in believing that current circumstances bring forward the need to alter the regular reserve balance within our Army and increase the size of the Regular Army, and probably the regular component of the Royal Navy as well. There is an increasingly strong case for increasing the manning of our regular Armed Forces by some 5,000 posts. Not only would that be a useful increase in capability in itself, but it would send a clear signal that the UK Government take their defence responsibilities seriously, not only on behalf of their own citizens but on behalf of our EU partners and NATO allies too.

Noble Lords will have read this morning’s comments by the Secretary-General of NATO calling for an increase in defence spending. Although our Government will argue that the United Kingdom still has the fourth—or is it now the fifth?—largest defence budget, it is proportionately down in terms of GDP from even five years ago, and represents a funding level that provides a lesser degree of defence capability than five years ago. Will the Minister confirm that, whereas in 2008 our land forces were able to deploy 10 combat brigades, going around two five-brigade cycles, conducting difficult operations in both Iraq and Afghanistan simultaneously, that capability is no longer available and will not be under the plans for Army 2020? If the Minister does confirm this, will he further confirm that this is not because of equipment shortages but due to the lack of manpower, be it regular or reserve?

What is to be done? Much as I would like to see the 5,000 uplift in regular manpower across the three armed services that I am calling for, I am aware of the political calculation that there are no votes in defence, so I do not see this uplift happening before the next general election. However, talking widely with many people—within your Lordships’ House and without—that one meets, I wonder whether that calculation is correct. Are there no votes in defence? Indeed, are there no votes in providing adequately for our national security? I am not so sure.

At the very least, would the Minister use his good offices with the government Chief Whip to programme a full debate on defence and security issues in this House in the next Session of Parliament? Surely such a debate would be a major contribution to the strategic defence and security review that will follow the next election. Surely the people of this country deserve to hear the arguments set out clearly before them. At the end of the day, it is the votes of the people of this country that will determine the next Government, and it is the first duty of that Government to provide fully for the defence of the realm and the safety of our

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citizens, not forgetting the well-being of the members of the Armed Forces and their families, who provide that defence and our safety. The case for re-examining our previous assumptions on military manning and the levels of risk that we are taking is strong, and, if anything, getting stronger.

8.07 pm

Lord King of Bridgwater (Con): My Lords, the House is grateful to the noble Lord, Lord Dannatt, for providing this opportunity, albeit a truncated one, to raise this important subject. I echo his last comment and hope that it will be possible early in the next Session to hold a much more substantial debate on these important issues, not least given the troubled times in which we now may be finding ourselves. His Question asks the Government for,

“their assessment of whether they have sufficient manpower and the right balance of regular and reserve forces…to meet the United Kingdom’s current national and international responsibilities and requirements”.

As he rightly says, current responsibilities may look different from those of a few months ago.

In looking at this, many noble Lords will have had the advantage of reading the Defence Select Committee report, Future Army 2020. My first point is that the Secretary of State, in his answers to that Select Committee about the matters in the report, makes no bones about a determination to find a particular financial package into which defence requirements and defence equipment and resources have to fit. That is not a pleasant position to be in, but his approach is certainly much more sensible than to embark on more ambitious proposals for which funds are inadequate. Our Armed Forces are entitled to expect some measure of certainty that what we are embarking on can be properly funded and is therefore likely to be properly implemented. In that sense, recognising the need for austerity, I support him.

However, I share the noble Lord’s concern about the recruitment of reserves. I look with particular interest to what small firms are saying about making employees available for service in the reserves. Although they recognise the benefits of it to the individuals concerned, two-fifths of the companies that are open to providing reserves had reservations about their ability to help under the new structure. That is a serious matter. I therefore welcome the undertaking by the Secretary of State that he will keep this matter under close review.

I was interested in the exchange between Colonel Bob Stewart, the Secretary of State and the Chief of the General Staff when Bob Stewart asked for a short answer to the question: what was the strength and what was the weakness of Future Army 2020? General Wall said that its strength was the capability that we are getting for the resources allocated. That was a pretty guarded statement. Its weakness was that some areas would have less resilience than we would need, which obviously is a matter of concern.

The other element that I noticed coming through very strongly is that we are just talking about regulars and reserves here. However, noble Lords will have noticed the emphasis that is also given to contractors. There is undoubtedly a determination to make maximum use of contractors and contracted manpower to help

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fill perhaps some of the gaps in that respect. I welcome that because I have certainly found in the past that it can be very effective and very efficient—particularly, for example, bringing in contractors from the actual manufacturers to maintain and service important equipment.

I will not talk in detail about this, but the other concern I have is about rebasing from Germany, where quality of accommodation will be a major challenge for the Ministry of Defence. I hope that our returning forces will have the quality of accommodation to which they are entitled as they come out of some very good facilities in Germany.

The general view in the Select Committee report seemed to be that the question of further intervention was not one of if but of when and where. I was not in favour of intervention in Syria but I recognise that there will almost certainly be other cases. We are already involved in Somalia and Mali, and are helping with training in Libya. This activity of conflict prevention and capability building by training and helping countries to help themselves will continue to be a very important role for our Armed Forces. I welcome it from their point of view because, with the end of activities in Afghanistan, there will now be a period of what may appear to be rather dull service activity, and it is important that the Armed Forces have real and worthwhile activities.

As the noble Lord said, we are in a potentially dangerous time. We cannot be sure where the latest news coming out of Ukraine might lead. We hope that good sense will prevail, but at the same time we need to keep a very close eye on our resources while also keeping the new changes under close review. I welcome this opportunity which the noble Lord has given us to raise this point and to urge the Government to be ready to have a further, rather longer and proper discussion of these matters in the new Session of Parliament.

8.13 pm

Lord Soley (Lab): I congratulate the noble Lord, Lord Dannatt, on bringing this issue before the House. I agree with a very large amount of what he said, in particular that we need a longer debate on this. I wrote to the Chief Whip the other week, saying that we needed a debate on our relationship with Russia, because it is far more important than just Ukraine. The countries of eastern Europe and the Russians need to hear what we are saying here and in the House of Commons through their defence attachés and political advisers. It is very important that they hear that.

My own view, which I spelt out on 18 March in a debate on Ukraine, is that this is far more serious and long running than we are allowing ourselves to believe at the moment. What is implied in the Question before the House is whether we think the balance between our reserve and other forces is right and whether it meets the current needs of the day. I suppose the short answer to that is that it might, if we are very lucky. However, I do not think that we are going to be that lucky. The Government and both Houses have to look much more seriously at what is happening with defence at the moment and at our relationship with Russia. It

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is not just about Ukraine. What President Putin has done is to bring out the Russian nationalist card and, in doing that, he has given a great boost to morale in Russia. As I said on 18 March, I understand why Russia feels marginalised and undervalued. I understand all of that, and the disastrous history that it had throughout the 20th century, but the way it is being dealt with is profoundly serious.

Commentators tend to focus just on the issue of what Russia will do in Ukraine, but there are other questions here. It is about the Russian population in the other east European states. If they choose to say, “We want to have our voice heard, we will do what they are doing in Ukraine or did in Crimea”, it would not just be about a confrontation between NATO and Russia—serious though that would be—but about whether some of those states began to disintegrate, rather in the format of the former Yugoslavia but without the religious factors that were present there. You cannot underestimate that. If NATO is then required to undertake a policing operation, or something rather more than that, you would have to say that the balance between reserve and volunteer forces is probably wrong and that reducing the size of our Armed Forces at the moment is also wrong. I have no wish to return to the Cold War—and even less wish to talk about hot wars—but when you are in as uncertain a situation as this, reducing your defences is a mistake. We ought to be doing exactly what the United States and one or two other NATO countries are doing, which is building a military presence in some of those east European countries. The United States has a new air squadron in some of them and the Italians have deployed a ship off the Baltic states.

Can the Minister say in his response what we are doing? There needs to be a clear message that we have a military impact there and we want to make that known. At the same time we must have very serious discussions with the Russians about how we address some of their genuine and understandable concerns, and how we address the issue of minority Russian groups in those east European states. There are important arguments to be had there. They are not just about the military balance, but without the military balance bit you risk things getting out of control.

Often we look at Mr Putin and think that he is in some way a master planner of the old KGB variety. I am sure that he is of the old KGB variety, but I am not so sure that he is quite the master planner and certainly not sure that he is in control of events in the way that he likes to be. Once you release that Russian nationalist card there is no controlling it. That is why I say to the Minister that we need to think about the strategic defence review due next year. We need to start thinking about it right now. The debate on defence would be an important part of that. A deployment of some type of military forces in east Europe would be welcome. I would be in favour of some increase in military expenditure in order to meet the needs that we are facing.

This is not just about recreating a Cold War situation. It is about recognising that the present situation is far more serious and ongoing and that in such a situation you need to have preparation on the military side while developing a different diplomatic response from what we have had in the recent past.

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8.18 pm

Lord Lee of Trafford (LD): My Lords, I congratulate the noble Lord, Lord Dannatt, on securing this debate and support the broad thrust of his remarks.

We have a backdrop of a world sadly full of conflict and uncertainty, and one with increased Russian and Chinese defence expenditure. Unfortunately, in the west we are going in the other direction. Last week General Sir Richard Shirreff, our outgoing NATO Deputy Supreme Commander, was quoted as saying:

“The sort of defence cuts we have seen … have really hollowed out the British armed forces and I think that people need to sit up and recognise that”.

The plan to reduce the Regular Forces and significantly increase our reserves presented a real opportunity to enthuse and capture the country’s imagination. Some months ago in this Chamber I recommended that our reserves be retitled something more exciting, such as the “Prince’s Royal Reserves”. Instead, we have continued with the dull, stale words “reserve” and “reserves”. It is no wonder that there are problems with reserve recruitment.

Like other noble Lords, I would welcome a full defence debate, but I want to take this opportunity to ask a few brief questions, most of which I have given notice of to my noble friend. Does he believe that we have sufficient escort vessels to fulfil our international responsibilities? Nominally we have 19 escorts, of which probably only a dozen are operational. On carriers, it is suggested that additional costs above the latest baseline of £6.2 billion will be shared 50:50 between the private sector and the MoD. Is that the situation? Could he also tell us where we are with the Crowsnest radar? Will that be ready in time?

On the next generation of Type 26 frigates, is the plan still to buy 13 and are we still on target to complete the final supplier selection for major items by the end of this year? When is the maritime reconnaissance asset, ScanEagle, launched from the back of ships, likely to come into service? On UAVs, what is the state of play with Watchkeeper, which had its first full-flight training test last month? Generally on UAVs, does he agree with a former Israeli Air Force commander who said recently:

“The attack helicopter is finished”,

and does he agree that unmanned air-to-air combat is a realistic prospect within 15 years? Does my noble friend believe that we are spending enough on UAV development and procurement?

On the Air Force, there are suggestions that the Joint Strike Fighter development in the United States is slipping further behind schedule. Can my noble friend comment on that? It is clearly so important to us in this country. On the Army, leaving aside Special Forces, what is our current attitude to parachute training? How many service personnel are being trained each year?

8.21 pm

The Lord Bishop of St Albans: My Lords, I, too, thank the noble Lord, Lord Dannatt, for giving us this opportunity to discuss this important matter. I also take the opportunity to pay tribute to all those who

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with great commitment, and sometimes great cost and self-sacrifice, are putting their lives on the line for us and for the defence of our nation. It is important to remember some of those who are now on active service.

I shall refrain from commenting on technical military matters and raise two specific points quite briefly. First, as well as ensuring that our country is properly defended, it is vital that we maintain the capacity to contribute to the increasing need for peacekeeping in our world, and not least with the United Nations. These missions are essential if we are to protect civilians when hostilities break out and stop them escalating. They are vital if we are to create the conditions for rebuilding peace and for establishing strong democratic Governments.

Britain already supports a number of UN peacekeeping missions: in Cyprus, the Democratic Republic of Congo and South Sudan. These are long-term commitments. They do not just go away; they eat up many of our resources. After the United States, Japan, France and Germany, we are the largest contributor to the UN peacekeeping budget. As one of the largest economies in the world, we have a moral duty to provide help where we can if we are trying to create new alliances and to help those places that are facing really serious problems and divisions.

Noble Lords have already referred to the fact that world events can change rapidly—Ukraine—but of course we also sometimes look to our Armed Forces to help when there are emergencies in this country. It was not many weeks ago that parts of our country were facing flooding and we were very grateful to be able to call upon them to help us in those situations.

We need spare capacity and resources that are flexible. I have no doubt that Reserve Forces are an important element in this, as long as the increase in Reserve Forces is not used as an excuse to see them as a replacement for endlessly cutting our Regular Forces.

My second point is that if we are going to see some fundamental changes in the balance of how we sort out our defences, not least by a serious increase in the number of reservists and the use of Reserve Forces, we need to ensure that resources are refocused to support the reservists in particular. The Regular Forces have the huge advantage of being based on or close to military establishments. There are opportunities for their families to meet and offer mutual support. Local schools are always alert to the huge stresses put on the children—whom we must not forget—of those who are actively serving. Some of the excellent charities and support services are close at hand; indeed, chaplaincy is usually available on those military sites. But for many reservists, there is no similar support in the immediate locality when they return, especially if they live in rural areas far from large urban centres.

It has been hugely encouraging to hear about the impact and success of the Armed Forces community covenants. When the covenant was signed in my home town of St Albans in December 2011 between the Armed Forces, representatives of the Royal British Legion, the county council and all the district and borough councils, also included were Hertfordshire Enterprise Partnership, Jobcentre Plus and Hertfordshire NHS. However, it concerns me that we were not given

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an opportunity to join in with thinking about how we can offer chaplaincy and support, particularly to reservists, and indeed there was no mention of how schools were going to be included, so that when reservists came back and children found that stressful, they would be included and supported. I hope that as these covenants are rolled out, we can think about how we can draw in the voluntary sector to offer real and significant support to those who put themselves on the line in the defence of our country.

8.26 pm

Lord Glenarthur (Con): My Lords, I strongly share the concerns raised by the noble Lord, Lord Dannatt. The professionalism, resilience and indeed the sacrifices, as the right reverend Prelate has just said, of service men and women are plain for all to see.

Senior, highly trained and experienced military officers in or within recent direct experience of very responsible national and international positions know what they are talking about, so I was simply astonished 10 days ago to read that the Secretary of State had described as “nonsense” the statements made by a senior officer on retirement about his concerns for the present and future capability of the Armed Forces, most especially the Royal Navy but also about manning in general and the reserves in particular. Those views may be politically inconvenient but they are very widely held and articulated. The House of Commons report Future Army 2020 hardly provides a ringing endorsement of government policy, even if the economic factors the country faces are very real. Nonsense those comments certainly are not.

Reserve service men and women must be trained to a high standard and to be fit for deployment—there is not much argument about that. One imperative is to provide the right incentive for them, often known as the proposition. Unless opportunities for training, provision of equipment and direct comparability are provided in almost every way with the regulars, that proposition will be very difficult to deliver. In any case, it will not necessarily be a cheaper option.

Of course, recent operations could not have been successfully prosecuted without extensive use of reservists. As the noble Lord, Lord Dannatt, said, the target of 30,000 deployable reservists by 2018 is a tall order. The programme to recruit them has got off to a shaky start because of the errors apparently made within the Ministry of Defence and a contract with Capita. The final figure may not be achieved or ultimately sustainable. Attracting redundant or other former ex-regulars to the reserves appears to be proving difficult, and I hope that my noble friend will be able to give us figures for that.

I spent many years as chairman of the National Employer Advisory Board for the reserves and so have a long-standing interest in how, in what is proposed, their future is going to develop. I would love to know how confident the Government are in the employer aspects of reservists, especially in the need to ensure that leave for training time can be made available at no detriment to employer or employee. Reservists must be as thoroughly trained as, and interchangeable with, their regular counterparts. What are the up-to-date figures for recruiting and sustaining reservists against

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the targets that have been set? What are the same figures for the regular services, particularly the Army? What are the current rates of premature voluntary release of service men and women? I hope my noble friend can give answers to these questions, some of which I have been able to give him notice of.

Concerns remain about the entire Middle East and the rise in Islamic fundamentalism. However, as the noble Lord, Lord Dannatt, said, we have recently seen disturbing destabilisation on the eastern fringes of Europe. Our foreign policy towards Russia, with its recent acquisitive and bellicose ambitions and substantial military muscle, understandably dwells on economic and even personal sanctions. However, no foreign policy can be fully effective if not reinforced by the capability of credible military response—the underpinning to which the noble Lord, Lord Dannatt, referred—in keeping with our international obligations, should that ghastly prospect prove necessary. That seems to be very much the burden of the noble Lord’s question.

Defence capability is a form of insurance. I am afraid that we seem to have got pretty close to our policy documents becoming invalid.

8.31 pm

Lord Burnett (LD): My Lords, I, too, congratulate the noble Lord, Lord Dannatt, on calling this debate and on his powerful speech. It is a compelling irony that the Secretary-General of NATO set the scene for this debate in an article in today’s Daily Telegraph. Long before Russia’s illegal annexation of Crimea, there was much to concern us about its future foreign and defence intentions. Russia some time ago embarked on a massive programme of rearming and re-equipping its armed forces. Can my noble friend quantify the expenditure that Russia has set aside for this purpose? Will he write to me explaining what naval, military, air and other assets will be coming into service as a result of Russia’s huge expenditure and the personnel ramifications?

Russia’s economy is potentially very fragile. It is quite possible that energy prices will fall significantly. Russia is already in deficit. Corruption and nepotism are rife. There is a rapidly falling population. The legal system and the press and media are not considered to be independent of the Executive. All the apparatus of an autocracy are in place. If there are greater strains on the Russian economy, it is not difficult to speculate how this regime, or another even more hard-line regime, might react.

There are so many other areas of mounting tension in the world: not just the Middle East but most of Africa; China and Japan have got longstanding difficulties between them; North Korea; certain parts of South America; and there is even unrest in certain parts of the European Union. The USA cannot be expected to continue to bear nearly three-quarters of NATO’s total defence expenditure. We must honour our treaty obligations. As I have said, I wholeheartedly support the full Trident replacement programme. Can my noble friend tell us this evening how this is proceeding? Finally, can my noble friend tell the House what effect these events are having on government policy?

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My noble friend gave me some encouragement in a reply to an Oral Question some months ago that the Government understood that the Royal Navy required some 2,000 or so additional personnel to man the aircraft carriers. For reasons already given, particularly by the noble Lord, Lord Dannatt, we also need more personnel in the regular “teeth” arms—the Royal Marines and the Army. I hope the Government are aware of this and that my noble friend will be able to give us some encouragement.

8.34 pm

Lord Bilimoria (CB): My Lords, in his 2007 book The Black Swan Taleb was at pains to point out that the trick in dealing with black swans was not predicting them—as outliers, they frankly defy prediction of any sort—but rather with ensuring that you can cope with them and have the resilience to do so. Last year, would anyone really have assumed that we would have been looking at the invasion of a large eastern European country by a resurgent Russia? The answer is almost certainly not.

As the outgoing secretary-general of NATO has said,

“every ally needs to invest the necessary resources in the right capabilities … In the long run, a lack of security would be more costly than investing now and we owe it to our forces, and to broader society”.

The noble Lord, Lord Lee, referred to General Sir Richard Shirreff, who said:

“I wouldn’t want to let anybody think that I think that Army 2020 is good news, it’s not … The sort of defence cuts we have seen … have really hollowed out the British armed forces and I think that people need to sit up and recognise that”.

The number of troops is going down. The Army’s strength was 102,000 and by 2020 it will be 82,000, so we will not even be able to fill Wembley stadium. As Professor Michael Clarke, director of the Royal United Services Institute, said:

“With 82,000 we’ve got a ‘one-shot’ Army. If we don’t get it right the first time, there probably won’t be a second chance”.

I thank the noble Lord, Lord Dannatt, for initiating this debate. He himself has said:

“When the Coalition took its decisions on the size and shape of the Armed Forces at the time of its Strategic Defence and Security Review in 2010, it did so in the midst of an economic crisis … but doubt has remained as to whether a regular Army of just 82,000 is sufficient for our needs, and whether the target of 30,000 trained reservists is achievable”.

The Armed Forces are undergoing a huge reduction. There will be a reduction by 33,000, or 19%, by 2020: 5,500 from the Royal Navy, 8,000 from the Royal Air Force and 19,500 from the Army. In a scathing assessment, General Sir Richard Shirreff has also said that Britain is now the only NATO state not to commit any of its naval forces to maritime operations. What I find shocking—the noble Lord, Lord Glenarthur, referred to this—is that when asked yesterday about Sir Richard’s comments, Mr Hammond said:

“Much of what I’m hearing is nonsense”.

This is our great military expert—our Defence Secretary. He dismissed calls from the noble Lord, Lord Dannatt, the former head of the Army, to halt the withdrawal of British troops from Germany in order to send a military

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statement to Putin, saying that tank regiments are more effective based in Britain. That was the great general, Secretary of State Hammond.