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House of Lords

Monday, 12 May 2014.

2.30 pm

Prayers—read by the Lord Bishop of Oxford.

Immigration

Question

2.37 pm

Asked by Lord Holmes of Richmond

To ask Her Majesty’s Government what plans they have to remove international students from the headline immigration figures.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, the Government publish immigration statistics broken down by category. The number of student immigrants may therefore be easily distinguished from other migrants. The independent Office for National Statistics’ net migration statistics include students, and the Government have no plans to remove them. This makes no difference to the policy, which is that there is no cap and genuine international students are welcome.

Lord Holmes of Richmond (Con): My Lords, the message must be clear to international students: we want you and we welcome you. Can my noble friend the Minister assure the House that the Government are doing everything to ensure that, when it comes to global higher education, the brightest and the best choose Britain?

Lord Taylor of Holbeach: I think that the whole House will agree with those sentiments. It is certainly the Government’s policy, and I hope that it will be possible to persuade universities and Universities UK to take this opportunity to improve our position as the second provider of higher education to the world student population. This is a great opportunity for us, and we need to be united in sending that message.

Lord Bragg (Lab): My Lords, do the Government fully understand the damage that is being done? I speak as chancellor of the University of Leeds. I refer not only to the damage in fees, which is well over £1 million or £1.5 million—a lot to any university—but to the fact that we are excluding more than 23% of people from China and India. Does the Minister understand the value of those contacts, their value to our future negotiations, prosperity and culture and the lessening of value of our academic status in the world by this policy?

Lord Taylor of Holbeach: The noble Lord will know that there is no cap on numbers. We welcome the brightest and the best, and I wish that noble Lords would take that on board and persuade those universities

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where they have responsibility that this is the Government’s policy. If I may say to the noble Lord, visa applications from students sponsored by universities increased by 7% in 2013, and applications from students going to Russell group universities rose by 11%. That is not an industry that is suffering as a result of government policy; it is an industry that is taking advantage of government policy to show what a good offer we have for students.

Baroness Williams of Crosby (LD): My Lords, I warmly welcome the Government’s wish to make it clear that overseas students are extremely welcome. However, I have two questions for the Minister. First, why do we need to continue to include international students in our overall immigration figures when Canada, Australia, the United States and our other major rivals see no need to do that given that these are not migrants but visitors who will return home? Secondly, what is the effect of a reduction in overseas students on our crucial STEM courses—that is, courses on science, technology, engineering and computing—as many of those courses are at risk if they do not retain, and increase, the present proportion of overseas students?

Lord Taylor of Holbeach: My Lords, I must correct my noble friend on a matter of fact in that all our major competitors, including the US and Australia, count students as migrants. I hope I may explain why that is the case. In 2013, 115,000 people who came to the UK as students extended their stay—70,000 or so, or 62%, for further study and 38,000 for work. The Tier 4 system offers flexibility to allow these high-value individuals to extend their visa. However, not to include them as immigrants is against the practice in other competitor countries and is against our interests in making sure that we know who is here, why they are here and what they are doing when they are here.

Lord Hannay of Chiswick (CB): My Lords, does the Minister recognise that this is not a problem of statistics or the presentation of statistics? I entirely agree with his very welcome statement of the Government’s intentions but will he add just a few words—that in future the Government do not intend to treat students as immigrants for public policy purposes?

Lord Taylor of Holbeach: I have to make it clear that we treat them as immigrants for statistical purposes. The point of my argument is that students come here not just for six months or so but to pursue a course of study and, following that course of study, they go on to do other things. We delude ourselves if we think this is an alternative track that we can separate out from migration in general. The point I have made is that it makes no difference to our policy position, which is that the brightest and best should come here. I did not answer my noble friend’s question on STEM. Of course, STEM subjects are important. That is why STEM students from China went up by 7%, those from Malaysia by 1% and those from Hong Kong by 20% between 2011 and 2013. We are at one on this and I wish that noble Lords would accept the Government’s good faith in that regard.

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Baroness Knight of Collingtree (Con): My Lords, will my noble friend assure the House with regard to a major problem that we all experienced in the House of Commons for many years of students signing up to study at not very reputable places and then disappearing? Is that problem over?

Lord Taylor of Holbeach: Yes, my Lords. As my noble friend will know, institutions which were guilty of that practice are no longer able to sponsor students. I accept that universities are acting in good faith in conducting their responsibilities in this regard. All I am saying is that the Government’s position is that we want to back them in making sure that we tell the world what a good offer we have in this country for students.

Lord Stevenson of Balmacara (Lab): Is not the problem that the Department for Business, Innovation and Skills is actively trying to make sure that many students come here but the Home Office is doing its best to make sure that they do not get in? This has been exemplified by the warm words said by the Minister today, which are simply not believed in many of the places that traditionally have sent students here. What is he going to do to go on the front foot and get out there and persuade people that Britain is indeed open for business and that our education system is something that they should be joining?

Lord Taylor of Holbeach: I do not think that the noble Lord would have any doubts as to my good faith in this matter, and I am sure that that is true of most noble Lords because it is not the first time that we have discussed this issue. Indeed, it has been a theme over the past 12 months since the committee reported to the House. I am anxious to join noble Lords who have responsibility within universities in making it clear that the Home Office policy is not about making it difficult for these people to be here; it is about facilitating their studies and encouraging them to do so. As the noble Lord will know, during the passage of the Immigration Bill through this House we debated this very issue and I said that I hoped to meet Universities UK to talk about it, and that remains my intention.

Independent Living Fund

Question

2.46 pm

Asked by Baroness Campbell of Surbiton

To ask Her Majesty’s Government how the assessment guidance to local authorities under the Care Bill will address the particular needs of people transferring from the Independent Living Fund.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, one of the key principles of the Care Bill is that people who require care and support should have choice and control over their lives. The Bill requires that all assessments will consider the person’s needs, well-being and desired

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outcomes. The requirements of the Bill, and of guidance supporting implementation, will apply equally to all adults having an assessment, including those who are transferring from the Independent Living Fund.

Baroness Campbell of Surbiton (CB): I thank the Minister for his considered reply but, given the Government’s emphasis on people who have direct experience of using care and support services being centrally involved in their design and delivery, will the Minister please explain why his Government think it unnecessary to set up a reference group, including disabled people, the Independent Living Fund, local authorities and civil servants, to oversee this very important ILF transition?

Earl Howe: My Lords, the noble Baroness will know that she and I had a very useful meeting last week and I, with my honourable colleague Norman Lamb, undertook to her that we would give that proposal serious consideration, which we will certainly do. I will be in touch with her in the coming weeks to arrange a further discussion about this. We are absolutely committed to co-production in this and to involving stakeholders wherever possible.

Baroness Wilkins (Lab): My Lords, given that the Government have set the national eligibility criteria at a level that will not provide sufficient support for independent living, will the Minister say whether and how the Government will monitor the level of unmet need of the transferred ILF clients if elements of their package are not eligible for local authority funding?

Earl Howe: My Lords, 94% of ILF users receive support from both the ILF and the local authority. Local authorities will assess those who are transferring from the ILF. If a person is assessed as not having eligible needs, the Care Bill provides authorities with a power to meet those needs, and they do so. Authorities should also advise on what preventive services, information or advice, or other support may be available in the wider community to help them achieve their particular outcomes.

Lord Paddick (LD): My Lords, while the Government’s policy of localism is to be generally welcomed, does my noble friend not agree that there should be some exceptions? If, as a result of devolving the Independent Living Fund, some severely disabled people can no longer afford to live wholly independent and fulfilling lives, how is this in the best interests of those disabled people? Will he explain, bearing in mind the high cost of social care and residential care, how that will be in the best interests of the taxpayer?

Earl Howe: My Lords, the provisions in the Care Bill will apply equally to everyone with care and support needs, including those who are currently receiving support from the ILF. The aim of the ILF is to support independent living for disabled people. The overarching aim of the Care Bill is to give people with care and support needs more choice and control over their lives. It focuses specifically on their well-being

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and the outcomes that they want to achieve, and puts them at the heart of the system. That would be my reply. There is no question of forcing people into residential care. The starting point is: what are the needs and wishes of the individuals involved, and how can care be built around those?

Lord Hunt of Kings Heath (Lab): My Lords, can the noble Earl guarantee that no current recipient of the fund will lose out when money is transferred and it is the responsibility of local government? Will he tell the House why this money is not being ring-fenced? Will he acknowledge that in two recent examples of money being transferred by his department to local government—the Healthwatch budget and the public health budget—local authorities have not passed on the full amount? How will he ensure that local authorities spend that money on independent living?

Earl Howe: As the noble Lord knows, local government social care funding is not ring-fenced. We believe that allowing local authorities the flexibility to manage their budgets locally means that they can respond to local needs and priorities better. The Care Bill, as I have just said, will require local authorities to involve the person in the development of their care and support plan and, as far as possible, agree that with them. The person’s care and support plan may be different from their current package, but the central point is that they will be at the heart of the process to ensure that the package provides them with choice and control over their lives.

Baroness Uddin (Non-Afl): My Lords, the Government’s recently published strategy, Think Autism, vowed to help people with autism spectrum disorder to live independent lives. However, the abolition of the Independent Living Fund withdraws the very scheme that was set up precisely to help those vulnerable people to live in the community. How many people with autism spectrum disorder currently receive support under the Independent Living Fund and will therefore be affected by this closure?

Earl Howe: My Lords, I do not have that figure in my brief but the number of people receiving payments from the Independent Living Fund is relatively few in comparison to the total number of people receiving adult social care and support. If I have any further figures that I can supply to the noble Baroness, I shall be happy to write to her.

Lord Laming (CB): Will the noble Earl share with the House the objections to ring-fencing this fund during the initial period to make sure that we have certainty that the money will be used for the purpose for which it is intended?

Earl Howe: My Lords, the issue is that we essentially have a two-tier system. That is at the heart of why the ILF is being disbanded over the next year or so. As a result of that, we know that there is some cross-subsidisation, with local authorities using ILF money to off-set the cost of social care. We are rechannelling

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that money to local authorities in the expectation that they will use it for adult social care, as I have said. It is not, however, ring-fenced.

National Health Service: Nursing Staff

Question

2.53 pm

Asked by Baroness Kennedy of Cradley

To ask Her Majesty’s Government what steps are being taken to ensure adequate levels of nursing staff in the National Health Service.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, patient safety is paramount. Patient safety experts agree that safe staffing levels should be set locally. Local NHS organisations are best placed to determine the skill mix of their workforce and must have freedom to deploy staff in ways appropriate for their locality. We have commissioned NICE to develop guidance on setting safe staffing levels and to endorse safe staffing tools. If hospitals do not have sufficient nurses, the Chief Inspector of Hospitals will take action.

Baroness Kennedy of Cradley (Lab): As today is International Nurses Day, will the noble Earl join me and many others in this House in paying tribute to the hard work of our NHS nurses? Further, can he explain why, since 2010, the actual number of qualified nurses has fallen and nearly 4,000 senior nursing posts have been lost? What are the Government going to do about that worrying reduction in experience and skill in nursing in our NHS?

Earl Howe: My Lords, I readily join the noble Baroness in paying tribute to our nursing workforce, whether in acute settings, in the community or, indeed, in any other setting. In fact, if the noble Baroness consults the official statistics, she will see that there are more nursing, midwifery and health visiting staff at present than there ever have been in the history of the NHS. Since the election, more than 5,100 more nurses are working on our wards, there are more than 1,700 more midwives and more than 2,000 more health visitors. We have been able to fund these increased numbers by a reduction in administrative staff—today there are more than 19,600 fewer administrative staff. I would be interested to hear where the noble Baroness gets her figures from but, as she will have gathered, mine are completely in the other direction.

The Lord Bishop of Oxford: My Lords, given the court ruling last week against Thanet Clinical Commissioning Group saying that it was obliged to follow NICE guidelines unless a special factor could be determined that would justify departure, will Her Majesty’s Government give an assurance that the same test will apply to NHS trusts in regard to the ratio of nurses and patients?

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Earl Howe: The guidance issued today by NICE on staffing ratios, to which I think the right reverend Prelate is specifically referring, is in draft, but the deputy chief executive of NICE has stressed that there are no floor or ceiling numbers on the required number of nursing staff that can be applied either across the whole of the NHS or in a particular ward setting. What the profession is seeking, and what NICE is looking to give it, is a reference tool or guideline that will enable it to judge correct staffing levels in accordance with the particular circumstances of a ward and the skill mix of the staff on that ward. It is a guideline rather than a mandatory prescription.

Baroness Manzoor (LD): My Lords, my question relates to specialist nurses. NICE has issued guidelines in relation to TB, and I am delighted to see that Public Health England has also issued a strategy on TB, making it a key component. However, there are variations in the number of TB nurses within trusts. How are the Government and NHS England going to adhere to the ratios that have been advocated by NICE?

Earl Howe: My Lords, as regards specialist nurses, the Government have supported the development of a range of specialist roles within the profession. In the end it is for local NHS organisations, with their knowledge of the needs of the local population, to invest in training for specialist skills and to deploy specialist nurses. We recognise that more could be done by some local healthcare organisations in this area, and Health Education England is able to support employers with continuing personal and professional development—but within clear limits. The planning process has created an opportunity for employers, through the LETBs—local education and training boards—to prioritise investment in this area.

Lord Turnberg (Lab): My Lords, the number of nurses may have gone up a little, but the main problem is the marked reduction in the number of senior nurses on wards. These are the women and men who are in charge of a ward and make sure that care is properly delivered at the ward level. Does the noble Earl consider that this particular loss is because we do not reward and value these key individuals well enough to recruit or retain them?

Earl Howe: My Lords, as the noble Lord will be aware, finances in the NHS are tight. However, as I said earlier, there are now 5,100 more nurses on our wards than there were in May 2010. That must indicate that nursing is still an attractive profession for the brightest and the best of our young men and women.

Lord Willis of Knaresborough (LD): My Lords, will my noble friend accept that nurses do not work in isolation and that in order to deliver the high-quality care and safety that the Government rightly demand, the whole of the caring workforce needs to be properly trained and properly educated? What steps are being taken to ensure that healthcare support workers in

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particular—there are more than a million of them—get the training that they deserve to give patients the care that they too deserve?

Earl Howe: My noble friend is right. He may be aware that last month Health Education England, Skills for Care and Skills for Health launched the pilot for the new care certificate, which is taking place across a range of health and social care settings. It will test a set of standards designed to help employers to assess not only workers’ skills, but also the knowledge, behaviours and values that are required to deliver compassionate and high-quality care. That pilot will continue throughout the summer and, subject to evaluation, it is planned to introduce the care certificate next March.

Ratification of the Convention for the Protection of Cultural Property in the Event of Armed Conflict

Question

3 pm

Asked by The Earl of Clancarty

To ask Her Majesty’s Government when they will introduce legislation to ratify the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and accede to its two protocols.

Lord Gardiner of Kimble (Con): My Lords, I am not in a position to say when the Government will introduce legislation to facilitate the UK’s ratification of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two protocols. I confirm our commitment to heritage protection and our respect for other nations’ cultural property. That is why we have pledged to introduce legislation as soon as parliamentary time allows.

The Earl of Clancarty (CB): My Lords, does the Minister agree that there is a growing feeling that, if we do not ratify this treaty, at the very least we shall not have the necessary moral authority to speak out on, as well as to help to protect against, the destruction and theft of cultural heritage that continues to occur? The Government have been saying for years that they will ratify the treaty when parliamentary time allows. There is now plenty of parliamentary time. Will the Government get on with it?

Lord Gardiner of Kimble: My Lords, I of course understand the noble Earl’s position. It has not been possible for either the current or the previous Government to secure the parliamentary time needed to pass the relevant legislation. It was necessary for both Governments to take it up by giving priority to measures for economic recovery and reform.

Lord Maclennan of Rogart (LD): My Lords, does the Minister recognise that there has in recent years been a considerable and avoidable loss of cultural

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heritage as a result of armed conflict? Does he not acknowledge that in 2008 the previous Government published the draft Cultural Property (Armed Conflicts) Bill for consultation? We have had 10 years since the Government’s concerns were removed by the passage of the second protocol. Can he not find some time for this? Parliament would be very keen to see this enacted.

Baroness Butler-Sloss (CB): My Lords—

Lord Gardiner of Kimble: My Lords, again I understand my noble friend’s position. It will help if I say that, because of anticipation of this country’s adoption of the convention and its protocols, it already informs the Armed Forces’ law of armed conflict doctrine and training policy, particularly with regard to respect for cultural property, precautions in attack and recognition of the protective emblem.

Lord Howarth of Newport (Lab): My Lords, the Minister’s words are welcome as far as they go, but will he acknowledge that Governments have on previous occasions made exactly the same commitment as he has done today, yet the situation has persisted—disgracefully—that Britain is the only significant military power not to have ratified the convention? On this one issue at least, will the coalition parties set aside their differences and agree to put this measure in the Queen’s Speech?

Lord Gardiner of Kimble: My Lords, I am certainly not privy to the content of the Queen’s Speech. It would be fair to say that the coalition has taken forward many measures that are in the national interest. I am aware of and understand entirely the feelings of your Lordships and many outside who want legislation on this matter.

Baroness Butler-Sloss: My Lords, I must apologise to the Minister. I am afraid that was overenthusiasm because something did just cross my mind: is this is an issue of time or of inclination?

Lord Gardiner of Kimble: My Lords, I think I have emphasised in my replies that this is a question of time. We have pledged that we wish there to be legislation, as indeed did the previous Government. I have read the draft Bill published in January 2008. However, for very legitimate reasons, the previous Government felt that legislation was required to deal with the economic crisis. That is what the coalition Government have done and I believe it is bearing fruit—which is, after all, in the national interest.

Lord Cormack (Con): My Lords, I do not think that any noble Lords would doubt the inclinations of my noble friend. However, 10 years is quite a long time and 60 years is even longer. We have just had an extra week of Easter Recess and we have an unnecessary extra week of Prorogation. Can we not just find a little time to get this very necessary measure—on which my noble friend protests that everyone agrees—on to the statute book?

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Lord Gardiner of Kimble: My noble friend, as ever, makes a compelling point. However, I am afraid I am not a magician and I cannot will the parliamentary time. During this Session, we have undertaken a lot of very important work in the national interest, which is what your Lordships’ House does. I was looking at the recess weeks—they have been the same for the past three Sessions.

Lord Collins of Highbury (Lab): My Lords, the moral case for adopting this legislation is unanswerable. As we have heard, it is not really credible to say that this is about parliamentary time. I have heard what the Minister has said. Will he give a personal commitment that he will do what he can to ensure that this measure is included in the Queen’s Speech?

Lord Gardiner of Kimble: I am afraid that really is rather above my pay grade. I understand entirely what the noble Lord is saying. We would ideally like this to be put on the statute book but we are not in a position to do that at the moment. What is important in practical terms is that our Armed Forces are very conscious of the protocol and the convention, which is why they adhere to what is intended. I have some very interesting details on what we have been undertaking in Afghanistan, for instance, where we very much adhere to the requirements of the convention.

Lord Dobbs (Con): Would my noble friend accept that one of the prime casualties of any armed conflict is the truth, and that we set up the Chilcot inquiry to establish the truth into that tragic war in Iraq? That report has now taken longer to write than World War 1 took to fight, and there is a rumour abroad that it is being held up by the intransigence of one very wealthy man. Would he not accept that the nation’s interests, and the interests of truth, far outweigh the interests of any one man and can he tell us when that report will be published?

Lord Gardiner of Kimble: I thank my noble friend but all these reports take their course and take their time. However, it is obviously very important that we have this report and have it in the proper time.

Transport for London Bill [HL]

Motion to Agree

3.08 pm

Moved by The Chairman of Committees

That the Commons message of 7 May be now considered; and that the promoters of the Transport for London Bill [HL], which was originally introduced in this House in Session 2010–12 on 24 January 2011, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of bills).

Motion agreed and a message was sent to the Commons.

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Scotland Act 1998 (Modification of Schedule 5) Order 2014

Motion to Approve

3.08 pm

Moved by Baroness Williams of Trafford

That the draft order laid before the House on 17 March be approved.

Relevant document: 24th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 7 May.

Motion agreed.

Merchant Shipping (Convention Relating to the Carriage of Passengers and their Luggage by Sea) Order 2014

Motion to Approve

3.08 pm

Moved by Baroness Kramer

That the draft order laid before the House on 24 March be approved.

Relevant document: 25th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 7 May.

Motion agreed.

Immigration Bill

Commons Reasons and Amendments

3.09 pm

That this House do not insist on its Amendments 16 and 24, to which the Commons have disagreed for their Reasons 16A and 24A.

Lords Amendments 16 and 24

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(d) assist the child to access legal and other representation where necessary, including, where appropriate, to appoint and instruct legal representatives on all matters relevant to the interests of the child;

(e) consult with, advise and keep the child informed of legal rights;

(f) keep the child informed of all relevant immigration, criminal, compensation, community care, public law or other proceedings;

(g) contribute to identification of a plan to safeguard and promote a durable solution for the child based on an individual assessment of that child’s best interests;

(h) provide a link between the child and various statutory and other bodies who may provide services to the child, accompanying the child to any relevant meetings;

(i) assist in establishing contact with the child’s family, where the child so wishes and it is in the child’s best interests;

(j) where appropriate liaise with an immigration officer handling the child’s case in conjunction with the child’s legal representative;

(k) accompany the child to all interviews with the police, the immigration authorities and care proceedings;

(l) accompany the child to any court proceedings; and

(m) accompany the child whenever the child moves to new accommodation.

(3) A child trafficking guardian must have completed the training required in subsection (7) and may be—

(a) an employee of a statutory body except for an employee of a local authority;

(b) an employee of a recognised charitable organisation; or

(c) a volunteer for a recognised charitable organisation.

(4) A person discharging duties as a child trafficking guardian shall not discharge any other statutory duties in relation to a child for whom they are providing assistance under this section.

(5) Where a child trafficking guardian is appointed under subsection (1), the authority of the child trafficking guardian in relation to the child shall be recognised by any relevant body.

(6) In subsection (5), a “relevant body” means a person or organisation— (a) which provides services to the child; or

(b) to which a child makes an application for services; or

(c) to which the child needs access in relation to being a victim of human trafficking; or

(d) any court or tribunal that a child engages with.

(7) The Secretary of State shall by order—

(a) set out the arrangements for the appointment of a child trafficking guardian immediately after a child is identified as a potential victim of trafficking in human beings;

(b) set out requirements for the training courses to be completed before a person may exercise functions as a child trafficking guardian;

(c) set out the arrangements for the supervision of persons discharging duties as a child trafficking guardian;

(d) set out the arrangements for the provision of support services for persons discharging duties as a child trafficking guardian; and

(e) designate organisations as a “recognised charitable organisation” for the purpose of this section.

(8) A person’s appointment as a child trafficking guardian for a particular child under this section shall come to an end if—

(a) the child reaches the age of 21; or

(b) the child leaves the United Kingdom.

(9) In this section, a child is considered to be a “potential victim of trafficking in human beings” when a referral has been made to a competent authority for a determination under the identification process required by Article 10 of the Trafficking Convention (Identification of Victims) and there has not been a conclusive determination that the individual is not such a victim.

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(10) For the purposes of subsection (9), an individual will not be considered to have received a conclusive determination that the individual is not a victim of trafficking in human beings if—

(a) an individual is appealing or seeking judicial review of the conclusive determination; and

(b) the appeal or judicial review is not completed.

(11) In this section—

“competent authority” means a person who is a competent authority of the United Kingdom for the purposes of the Trafficking Convention;

“relevant child” means a person who is under the age of 18 and who— (a) requires leave to remain in the United Kingdom whether or not such leave has been granted; or

(b) is a national of an EEA state other than the United Kingdom; “the Trafficking Convention” means the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16 May 2005);

“trafficking in human beings” has the same meaning as in the Trafficking Convention.”

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, I have no doubt that we all wholeheartedly agree across the Floor of the House and in Parliament generally that there is a fundamental need for victims of child trafficking to receive the very best support that we can possibly offer them. Noble Lords will be aware of this Government’s absolute commitment to stamping out modern slavery, including child trafficking, while building on the UK’s strong track record in supporting and protecting victims. It is because of this commitment that this Government have signalled their intent to bring forward legislation to tackle the scourge of modern slavery. We intend to bring it forward as soon as parliamentary time allows. In addition, we are driving forward a range of non-legislative measures to tackle modern slavery and ensure that victims are identified and supported both inside and outside the criminal justice process and that perpetrators of this abhorrent crime are brought to justice.

I would like to take this opportunity to thank the noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord McColl, Mr Frank Field and others for their engagement with us outside the House on this issue. I am also grateful to the other members of the Pre-Legislative Scrutiny Committee for their hard work in scrutinising the draft modern slavery Bill. I agree with the committee’s aims to make life as difficult as possible for slave masters and traffickers and to transform the position of victims of slavery, including children.

Lord Spicer (Con): My Lords, would the Minister like to add Anthony Steen to that esteemed list?

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Lord Taylor of Holbeach: I am very happy to mention Mr Steen, whose work has been exemplary on this issue. I willingly accede to my noble friend’s suggestion.

Noble Lords may or may not be aware that there have been a number of meetings to discuss this important issue over the past few weeks, involving not only myself but also the Home Secretary and our legal advisers. This reflects our determination to listen to concerns and to ensure that we are doing all that we can to deliver our common purpose, which is to ensure that we deliver the best support that we can for this particularly vulnerable group of children.

The cross-party engagement on this issue heartens me greatly and shows just how much we are pulling in the same direction to ensure that trafficked children—arguably some of the most vulnerable children in our society—obtain the protection and care that they so desperately need, whether they have been trafficked across or within our borders. The passion and fervour with which noble Lords have campaigned to achieve the goal of giving these children the care and support that they need and deserve is laudable and I hope that we have demonstrated in our conversations with the noble and learned Baroness and others outside the House and within the House of Commons that we wholeheartedly share the desire to do just that.

We are extremely grateful to all involved for working with us in the spirit of co-operation to find a workable solution that will bring the very best outcome for these children. I am pleased that we now have some consensus across Parliament about the best way forward on the important issue of ensuring the right protection and support for child victims of trafficking. By announcing in January the trial of independent specialist advocates for child trafficking victims, the Government sent the strongest signal of their commitment to take action on this matter.

3.15 pm

As I said previously in this House, these specialist and dedicated advocates will be both experts in trafficking and completely independent of the local authority. Their role will be to steer the child through the complexities of the local authority social care system as well as the immigration and criminal justice systems, and to ensure that the child’s voice is heard. For the first time, this vulnerable group of children will be supported by a dedicated contact with the capacity and expertise to address the additional needs of the child, including immigration issues, and, in particular, to reduce the risk of the child going missing and being re-trafficked.

Importantly, these highly trained and dedicated advocates will be a consistent point of contact for the child and will accompany them to meetings. They will support the local authority to assess the needs of the child and will be advocates on their behalf. They will promote the safety and well-being of the child, support the child in relation to the children’s social care, immigration and criminal justice systems, and, importantly, play a role in ensuring that key decisions relating to the child trafficking victim are made with the full input and knowledge of the child’s wishes and needs.

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The Government’s commitment to these roles was further manifested by the indication by the Minister for Security and Immigration in the House of Commons last week of our intention to include an enabling power in future legislation. This would enshrine the child trafficking advocate role in legislation, providing a statutory basis for the role and its interface with other agencies. Members of the House of Commons were agreed on this matter and hoped that the arguments put forward by the Minister for Security and Immigration would satisfy us here today.

As was pointed out in the debate in the House of Commons, trafficking is predominantly an organised crime issue and significant aspects of the level of organised criminality involved can be missed when trafficking is viewed purely from an immigration perspective. I suspect noble Lords will understand that. Legislating on this matter in the Bill before us today risks undermining that message. We firmly believe that the right place for the statutory provision of the child trafficking advocate’s role would be a future Bill dealing with modern slavery, rather than the one before us today.

The proposed power in a future modern slavery Bill would provide a statutory basis for the role, by enabling arrangements to be made for child trafficking advocates to represent and support children who there is reason to believe may be victims of trafficking. This is where the outcome of the trials is crucial in informing what the very best provision of specialist dedicated support looks like. That is why we are eager for the trials to begin as soon as possible—so that we can begin to make that all-important difference for this extraordinarily vulnerable group of children. Our thinking is that the enabling power would contain a provision to require the Secretary of State, within a certain time period from Royal Assent, to report back to Parliament on the steps she proposes to take in relation to the enabling power as a result of the trials.

The Government have already stated their intention to robustly evaluate the trials of the specialist independent advocates for victims of child trafficking. We are in the process of commissioning comprehensive and independent evaluation, which will report after six months of the trial and again at the 12-month stage. The evaluation, which we intend to publish, will include an assessment of how the process worked and whether there were any barriers to the effective provision of the advocacy service, assessing what the very best looks like in terms of what specialist services these children need. That is why I am resisting the noble and learned Baroness’s Motion A1 and Amendment 16B. They would be an unnecessary addition to the comprehensive evaluations. With that, I beg to move.

As an amendment to Motion A, at end to insert “but do propose Amendment 16B in lieu”.

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Within twelve months of the date of dissolution of the current Parliament, the Secretary of State shall report to both Houses of Parliament on the provision of child trafficking guardians for child victims of trafficking in human beings.”

Baroness Butler-Sloss (CB): My Lords, I put down this amendment during a period of intense discussions last week in order to make it possible to continue the discussions with the Minister, the Home Secretary herself and the lawyers in the Home Office. I am absolutely delighted with the prospect of these pilots; the sooner they come into effect, the better. I am entirely happy with what the Minister has said: it covered every aspect of what my amendment says, but in the right place. I recognise that it is much better to have this enabling clause, together with a report by the Home Secretary in the modern slavery Bill, when it comes before both Houses of Parliament.

With that, I thank first the legal team in the Home Office, particularly the senior legal member of that team, Harry Carter, who could not have been more helpful to me. I am very grateful for the discussions with the Home Secretary and was particularly grateful to get just the e-mail I needed over the weekend from the noble Lord the Minister from Lincolnshire. With all of that, I beg to move and shall subsequently beg leave to withdraw my amendment.

Baroness Royall of Blaisdon (Lab): I wish to speak on this amendment—forgive me for being so tardy—as I just wish to place certain things on record.

I support the amendment tabled by the noble and learned Baroness, Lady Butler-Sloss, and am deeply disappointed and irritated by the amendment tabled by the Minister. While the noble Lord has just set out his reasons for not accepting the original amendment tabled by the noble and learned Baroness, the only reason given by the House of Commons was one of financial privilege. As has been said on other occasions, when the Government use financial privilege as the reason for rejecting amendments in the Lords, it too often looks as though the Government simply do not have sufficiently strong arguments to counter the just and moral reasons given by the Lords. Yes, I well understand that it is the Speaker who decides whether or not financial privilege should be applied, but the Government could have asked the House to waive financial privilege and chose not to do so.

This is frustrating for us but, more importantly, it has real implications for the small number of vulnerable children who are subjected to the evils of trafficking. These children have suffered the worst kind of traumatic experiences and they are desperately in need of a guardian, appointed on a statutory basis, to accompany them,

“throughout the entire process until a durable solution in the best interests of the child has been identified and implemented”.

On the subject of financial privilege, I ask the Minister to provide us with the Government’s computation of the predicted costs of the amendment that was rejected in the Commons.

Again I place on record my thanks for the extraordinary diligence and dogged determination of the noble and learned Baroness and the noble Lord, Lord McColl of

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Dulwich, to get justice for trafficked children. I also say to the Minister that I still do not understand why the Government have been so reluctant to act before now, why they could not have agreed to amendments in earlier Bills and why there was no provision for guardians in the draft modern slavery Bill. I know that pilots have now been announced, but if that has been the Government's intention for some time, why was there not an enabling clause in the draft Bill? I am pleased that the Government clearly now intend to introduce an enabling clause by amendment, but they could have done so much more.

In the absence of the amendment passed by this House, an enabling clause in the modern slavery Bill is welcome, but what would trigger that enabling power? Despite what the noble Lord just said, I am still slightly concerned about the statutory basis for the scheme. I want to be absolutely clear that, when a guardian feels the need to give instructions to a lawyer where a child is incapable of doing so, that lawyer will have the statutory basis to be empowered to represent the views of that child. Can the Minister give that assurance?

I also have a question about the timings. Could the Minister confirm that the trial will start on 1 July? Could he further tell the House when the pilots are due to end? As he would understand, it would be unacceptable if, when it came to the report that is in the amendment of the noble and learned Baroness, the Government were able to say that they had not had time to assess the outcomes of the pilots. I want to ensure that the timescale works.

The Minister in the other place said that the trial would cover 23 local authorities. Will all trafficked children be placed within those authorities, so that all trafficked children are covered by the trial?

I will mention one thing that may seem a bit pernickety. I was slightly concerned by some of the reasons given by the Minister in the other place for rejecting the noble and learned Baroness’s earlier amendment. He said one reason was that it dealt only with children under immigration control and that he wished in the modern slavery Bill to craft provisions covering all trafficked children. Of course, there was nothing to prevent the Government accepting the amendment and then repealing the provision if necessary when replacing it with a clause in the modern slavery Bill.

As I said, I welcome the fact that the Government are now introducing an enabling clause, but I am frustrated that it has taken such a long time. I am also rather frustrated that, in the end, the Government took the advice from the Speaker that financial privilege should be attached to this specific amendment. Sometimes, of course there are questions of money but in this case the money is negligible. Sometimes there are questions of politics but this issue has had cross-party support throughout. I am just frustrated that it has taken so long to get to where we are. Of course, I trust what the Minister said. I just seek clarification on the various questions I asked.

Baroness Hamwee (LD): My Lords, I note that at the last stage the noble Baroness and I both used the term “dogged” to describe the work done by those

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who advocated—if that is not the wrong term in this context—the guardianship provisions. I sense that the House would like to move on as there is so much agreement, so I will go straight to the one question I have left of those I had on the amendment.

There is a difference, in the normal understanding of the terms, between “advocacy” and “guardianship”. They are not the same thing. Of course, the detail of the role will be described when we come to the legislation so we will then understand just what it will cover. No doubt we will discuss that. The one question I have left for my noble friend that has not already been asked is: how will the Government assess and evaluate the trials or pilots—whatever we call them—including assessing the need for the provisions that are not included in the trial? The noble Baroness mentioned the one about being instructed and being able to carry out instructions, which I was also concerned about that because of my own professional background. If the trials do not cover a part of the role, how are we going to know whether that role was necessary? I hope my noble friend can explain what the approach to the assessment and evaluation will be.

3.30 pm

Baroness Williams of Crosby (LD): My Lords, I also have a question before we conclude the debate on this issue. I add my warmest thanks to the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord McColl, and the noble Lord, Lord Taylor of Holbeach, for the huge efforts which have gone into doing this, which I am sure the entire House appreciates.

My question is slightly different and relates to how the so-called “relevant child” is to be identified. Can the noble Lord, Lord Taylor, say anything about what instructions are likely to be given to the police and the border agency regarding determining whether a child is being trafficked? We are all well aware, not least within the European Union, that there is a very high level of child trafficking and that many of those children are not identified as being trafficked until it is too late and they have been handed on to another round of this ghastly trade. It may be too soon and he may have to wait for the modern slavery Bill, but it would be very helpful indeed if the Minister could say something about the operational effect on the police and border agency relating to how they deal with children who might, conceivably, be trafficked, but where it is not quite clear that they have been.

Baroness Howarth of Breckland (CB): My Lords, I have one brief question. No one can doubt my commitment to this group of children and to the work of my noble and learned friend Lady Butler-Sloss and the noble Lord, Lord McColl. It is crucial that we move forward and I am particularly grateful that the Government have decided to do this with a pilot. The questions that have been asked during this short debate reflect the complexity of the issue. Having been the deputy chair and chair of CAFCASS for some eight years, I know how crucial it is to ask the question about the difference between advocacy and guardianship. I presume these issues can be worked through during the pilot.

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I am concerned that the funding for the pilot, and for any future programme, should not come out of local government funding for child work generally or out of funding that would otherwise support children in the community. As a vice-president of the Local Government Association, I am quite clear that there are children who are, in many ways, equally vulnerable in their own homes—and some more so—who need equal support from social workers, who are extraordinarily pressed at the moment, as are the workers in CAFCASS. As the noble Baroness the Leader of the Opposition mentioned, there are financial questions, so I simply want the assurance that this money will not come out of mainstream childcare funding.

Lord McColl of Dulwich (Con): My Lords, I thank the Minister very much for all his help and co-operation. He spotted three of us plotting in a corner of your Lordships’ House and, instead of avoiding us, he made a bee-line for us and was open and friendly. We are very grateful to him, especially on the about-to-be statutory basis of the role. In our amendment, the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Carlile, the noble Baroness, Lady Royall, and I were concerned to ensure that the role of advocate met with international best practice, as well as taking advice from charities that have practical experience in supporting trafficked children.

Finally, I thank the Government for listening to us, obstinate and difficult though we were on some occasions. We are grateful that it has turned out well. Thank you.

Lord Taylor of Holbeach: My Lords, this has been an interesting and useful debate. I deliberately did not mention the reasons for the Commons rejection when I made my introductory speech. It is for ErskineMay rather than a humble Minister to determine these matters. I thought it was more important to present the arguments on the issue to the House. I am pleased that we have had a chance to reconsider this. These past few days have been very useful. I think noble Lords who have been involved will agree with that.

I thank the noble and learned Baroness, Lady Butler-Sloss, the noble Baronesses, Lady Royall and Lady Howarth of Breckland, and my noble friends Lady Hamwee, Lady Williams and Lord McColl for their contributions on these points. On the point made by my noble friend Lord McColl, we agree that these roles must have a statutory basis so that they have the respect and co-operation of all the various agencies that will engage with supporting the child. We will ensure that provisions in future legislation will deliver this. I will welcome the continued engagement of all noble Lords who have spoken on this issue. I doubt that noble Lords will be prepared to let this matter go on the back burner. I am sure that we will be under pressure and that I will be answering questions on a regular basis about how things are going.

Once we have a provider for the advocacy position in place, I will be happy to place in the Library the sort of detail that has been asked for today by noble Lords. I would like noble Lords to be informed of where we are on the issue. On the particular request for interested

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Members of the House to be able to visit trial sites, I will ask officials to discuss this request with the service provider and local authorities. I doubt very much whether a request of that nature would be refused.

We all agree that these children are incredibly vulnerable. As I have said, we cannot prejudge the outcome of the trials, although I am sure the Secretary of State will want to ensure that the learning from the independent evaluation is acted upon so that every child gets the most appropriate possible care.

The noble Baroness, Lady Royall, asked what would trigger the enabling power. The Secretary of State will want to ensure that the learning from the independent evaluation will influence the way in which the power will be exercised. There needs to be a connection between what we learn from the trials, the nature of the problem, the ability of the trials to address the problem and other aspects which become apparent to us during the course of the trials. Perhaps that answers the question asked by my noble friend Lady Hamwee about how it will be judged. It will be judged by a proper evaluation of the trial within the 23 areas in which it is taking place.

I think there is a general feeling that we know we have to make a success of this because it is a great opportunity to help these most vulnerable people. It is patently obvious to me that we share the desire to protect and support these vulnerable children. The disagreement is not about whether support and protection are required, but about how we legislate to provide it. The Government are totally committed to running the trials to ensure we have the very best insight into what these trials need.

My noble friend Lady Williams of Crosby wanted to know about how the operation would be conducted in other areas, and the noble Baroness, Lady Howarth of Breckland, asked how the funding would be dealt with. I do not have to say to the House that funding will clearly be an important issue to get right. If the resources are not available, the project will not be successful. We understand that. How the funding is actually found is an important element of what we will learn from the trials. There will, of course, be a certain amount of lead-in time for the organisation that will supply the service. I therefore confirm that because of the delay it will not now be possible to begin the trials by July. It is now intended that they begin by the end of September, and the Home Secretary will announce the provider shortly.

I thank noble Lords for their agreement that this Bill is not the place for the issue to be resolved, and for not insisting on the guardians amendment that we discussed on Report.

Baroness Royall of Blaisdon: My Lords, I am grateful to the Minister for saying that it is not now envisaged that the trials will start before September, and of course I accept that. However, the amendment proposed by the noble and learned Baroness states that the report should be ready within a year of the dissolution of Parliament, before the next Parliament begins. Can the Minister confirm that there will be enough time for the pilots to be appraised before the report referred to in the amendment comes before Parliament?

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Lord Taylor of Holbeach: Yes. I can also confirm that the way in which the enabling clause will be constructed will make it clear that there will be tabling of regulations designed to bring in the necessary power. There will also be a section that will ensure that the report is delivered so that we do not have to wait. Therefore, there will be an opportunity to discuss the report before the regulations are actually tabled. We have to make up for some lost time here. I am not saying that it was the will of the House that these matters were delayed but, as it turns out, we have delayed a process that I agree is quite time-sensitive. However, I think all noble Lords will agree that it is most important of all to make sure that our judgment is right on the issue and that when we introduce child advocates we do so in a proper fashion.

Baroness Williams of Crosby: I apologise to my noble friend for interrupting. Given the shortage of time and the hope that we will bring in this pilot scheme as early as September, can the Minister give an assurance that the discussions that I referred to with the police and the border agency can take place before that, so that we are well set up to try to identify children who have been trafficked?

Lord Taylor of Holbeach: I will certainly recommend that that is the case. It seems essential that we make sure that we know how the trials fit in with people who, under existing arrangements, carry out responsibilities connected with this area. They are diverse, as my noble friend points out. The border agency, the police and local authorities are all involved in this area, and getting them to work in a proper and co-operative fashion to make a success of this project is essential.

I thank all noble Lords for their contributions today, inside and outside the Chamber. We are bound to return to this issue in detail as time goes by. In the mean time, I hope that the noble and learned Baroness will agree to withdraw her amendment.

Baroness Butler-Sloss: My Lords, for the second time this afternoon, I apologise to the House, and particularly to the noble Baroness, Lady Royall, for trying to cut short any discussion—it has been extremely interesting and very constructive.

I will say two things about the Government. First, I am very glad that we got so far; that seems to me to be a real step forward. I thank the Minister and the Home Secretary for the fact that the dreaded issue of finance being raised in the Commons did not frustrate us in having a really constructive discussion with which finance had absolutely nothing to do. The Government are therefore really to be congratulated for being prepared to talk to the noble Lord, Lord McColl, and myself despite that issue having been raised in the other place. I am very grateful for that.

3.45 pm

I should have said earlier that this is the fourth time that this issue has come before this House. All those occasions have been the doing of the noble Lord, Lord McColl. It is thanks to his doggedness—eventually

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supported by me—on human trafficking over 25 years, bringing the matter before this House four times, that we know that with the undertaking of the Minister there will be an enabling clause in the modern slavery Bill and a requirement for a report. That is a huge step forward; I am very grateful.

I personally am not entirely happy about the use of the word “guardian”. “Guardian” presupposes CAFCASS and has a rather technical application in the Children Act. A “child advocate”, as proposed in the modern slavery Bill, will be a much more sensible compromise on this issue. I would be happier with that than the wording we had in this Bill. It gives me great pleasure to suggest that we remove it from this Bill and put it in the modern slavery Bill. I beg leave to withdraw my amendment.

Motion A1 withdrawn.

Motion agreed.

That this House do not insist on its Amendment 18 and do agree with the Commons in their Amendments 18A and 18B.

Lords Amendment 18

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(c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.”

Lord Taylor of Holbeach: My Lords, I beg to move Motion B in my name: that this House do not insist on its Amendment 18 and do agree with the Commons in their Amendments 18A and 18B.

Now, we had some lively debates on this issue, particularly on Report. I listened with great care to the views expressed on all sides of the House. I responded as fully as I could to a great number of questions to ensure that the Government’s position was clear. Noble Lords have sought to replace the proposals originally in the Bill with a measure to appoint a committee of the House to look at the issues in detail. That approach has been rejected by the House of Commons.

Amendments 18A and 18B restore the clause to the Bill, but with some key changes that respond to the concerns that were raised in this House. This is a narrowly drawn provision, which is proportionate to the risk created by harmful individuals. It is compatible with our international obligations, and closes a loophole

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in our law that has been highlighted by the Supreme Court. Noble Lords were concerned that the Home Secretary should not be able to deprive an individual of their citizenship in circumstances under which they had no recourse to another nationality.

When I spoke in earlier debates, I was clear that in most cases we would expect those who were deprived to be able to acquire another nationality. Amendment 18A now provides for a position where the Home Secretary can deprive an individual of their British citizenship only when they already hold another nationality or when she reasonably believes that, under the laws of another country, they would be able to become a national of that country. That is a significant change. It means that, in cases where the Home Secretary does not reasonably believe that the person has a right in law, she will not be able to take deprivation action.

We recognise that this is not likely to be a straightforward decision as, of course, every country operates its own nationality law. As we have made clear through the debates in both Houses, the Home Secretary would reach a decision only after very careful consideration of the facts of an individual case. She will reach a decision based on whether she reasonably believes that the person has recourse to another nationality under the law of another country. In doing so, she will naturally have regard to practical and logistical matters related to that. If the person was at real risk of persecution from that country, that would also be relevant to whether they were able to acquire that nationality. However, in most cases, the basis of the Home Secretary’s decision will be the law of the other country. Although aspects of these cases are likely to turn on closed material that will not be disclosed in full to the individual, the question of whether a person is, under the law, able to acquire another nationality is unlikely to be secret.

It has been suggested in previous debates that the Home Secretary’s decision to deprive should not take effect until an individual has secured another nationality. That requirement would render this provision ineffective. Indeed, such a requirement is really a description of the law as it stands. We must keep in mind that these individuals have acted in a way that is seriously prejudicial to the vital interests of the UK. We cannot compel them to take action to secure the nationality of another country, and it seems unlikely that they would lightly accede to a request to do so knowing that the consequence would be that we could then deprive them of British citizenship. Therefore, that cannot and must not be a barrier that prevents the Home Secretary taking action to remove their British citizenship where she reasonably believes that they are able to obtain another nationality, and we should not attempt to impose an arbitrary timescale within which that other nationality will be obtained.

Concern was also expressed previously that the power would be exercised in an arbitrary way. That will not be the case, as my next few comments will illustrate. The Home Secretary will certainly not take these decisions lightly. Ministers fully recognise that depriving a person of British citizenship is a serious step. That is why the threshold for use of the power is set at a high level and why decisions will be taken only

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after a great deal of research and careful consideration. This is not a speculative power: the Home Secretary must rely on the circumstances that apply at the time she makes her decision. She cannot simply assume that a person will be able to avail themselves of another nationality.

We have been clear that the power will be used in only a small number of cases. The existing power to deprive on non-conducive grounds has been used 27 times since 2006. Noble Lords will be aware that it is a long-standing practice of government not to disclose in public data that could damage national security or operational effectiveness, or which could cause individuals to be identified. That is why I cannot agree to requests to provide more detailed information to the House. Our position is based on clear advice from the agencies responsible for protecting our national security. I have, however, written to the chairman of the Joint Committee on Human Rights to make clear that such information would be shared with the individual whom we propose should conduct periodic reviews of the power introduced under this clause, who would have the appropriate security clearances. I have also expressed willingness to provide a private and in-confidence briefing to the JCHR if such arrangements would be acceptable to the current chairman, Mr Hywel Francis.

Any individual who is deprived of their nationality has a right of appeal under Section 40A of the British Nationality Act 1981. That appeal is to the Asylum and Immigration Tribunal—or, more likely in these cases, which may rest in part on closed evidence, to the Special Immigration Appeals Commission. The court will consider whether the Home Secretary has exercised the power lawfully and therefore whether she had reasonable grounds to believe that the person in question would be able to acquire another nationality.

I turn to Amendment 18B, which reflects the position that I took on Report and responds to the request made by a number of noble Lords that there should be an independent review of the operation of the power. Our proposals provide for a review after the first 12 months following commencement and triennial reviews thereafter. This review cycle recognises that the power will be exercised in a small number of cases only, and a longer period of review will ensure that there is a better evidence base to consider. Reports of the reviews will be laid before Parliament.

Noble Lords previously noted that there would be sense in combining this review role with that of the independent reviewer of terrorism legislation. I can only repeat what was said by the Immigration and Security Minister, Mr James Brokenshire, in another place, when he noted that the Home Secretary is certainly minded to discuss this role with David Anderson QC once the measure is on the statute book. She will want to consider with him whether this additional role can be accommodated without detriment to his existing responsibilities.

I am also aware that it has been noted that our amendment about an independent reviewer does not include the word “independent”. That is not a trick. The wording reflects that in analogous statutory provisions for reviews, perhaps most notably that of Section 36 of the Terrorism Act 2006, which relates to reviews by the

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independent reviewer of terrorism legislation. In other words, the provision that created the post of independent reviewer of terrorism legislation does not use the word “independent”, either. I can assure noble Lords that the person who carries out these reviews under the Immigration Bill provisions will be independent.

The amendment tabled by the noble Baroness, Lady Smith of Basildon, would restore to the Bill the measure that would provide for an appointment of a committee of the House to examine the Government’s proposals. The Government’s position remains that this would be an unnecessary and undesirable step. It is unnecessary, because our proposals have been given a proper degree of scrutiny by Members of both Houses of Parliament and by the Joint Committee on Human Rights as well as outside commentators. The Joint Committee has acknowledged that the proposals are consistent with our international obligations and, although we have heard other opinions expressed, those have not been supported by evidence of customary international activity that contests the Government’s position that we are acting in accordance with international law. The amendment is undesirable, because we are seeking this power to fill a gap in our law—one that has now been highlighted by the Supreme Court and one that individuals will attempt to exploit. That cannot be right, which is why we feel that we are right to insist on our amendment.

The government amendment is now very narrowly drawn—much more so than before—and is targeted at a small number of very harmful individuals. Your Lordships’ House has quite properly carefully scrutinised the Government’s proposals and asked the House of Commons to examine this issue again. It has now done so and clearly resolved both to reject Lords Amendment 18 and to agree the government amendments by a significant majority. Now that the elected House has reaffirmed its view on this matter, I urge noble Lords not to insist on their amendment. I beg to move.

4 pm

As an amendment to Motion B, leave out from “House” to end and insert “do insist on its Amendment 18”.

Baroness Smith of Basildon (Lab): My Lords, I thank the Minister for his care in initiating this debate and addressing some of the issues that have been raised here and in the other place. When your Lordships’ House voted by a majority of 62 to refer the issue of making someone stateless to a Joint Committee of both Houses, it did so not to frustrate the Government in any way but to assist them in their deliberations.

I will not rehearse the detail here but it was clear that the Government’s proposed new clause to extend the power to deprive an individual of naturalised citizenship, and in so doing make them stateless, had not been adequately or effectively considered in the other place. As we have said before, the amendment was tabled 24 hours before Report and there was no prior consultation or consideration in Committee, just

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a last minute amendment and short debate before it was accepted. I note the point the Minister has just made about adequate consideration having been given to the measure recently in the other place. However, it has to be said that even then the Deputy Speaker asked for brief speeches because of time constraints. We believe that further and more detailed consideration should be given to the matter in your Lordships’ House. In contrast to the other place, we had two excellent debates in Committee and on Report. The outcome of those two debates was that this matter required further examination because of the importance and complexity of the issues raised. An amendment was then tabled in my name and in the names of the noble Lord, Lord Pannick, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Lord, Lord Macdonald of River Glaven, was passed by 62 votes, and returned to the other place for further consideration. The other place rejected our amendment. However, we welcome the fact that the Government have taken note of some of the issues raised in our debates and have brought forward their own amendments. Government Amendment 18A refers to the reasonable grounds that the Home Secretary would have to have before making a naturalised citizen stateless, and government Amendment 18B is about a review. We certainly welcome the fact that the Government recognise the deficiencies in their original proposal and have sought to deal with some of the difficulties.

The reasons the Government gave for bringing forward the proposed new clause was the Supreme Court’s judgment in the Al-Jedda case, in which it was ruled that by depriving Mr Al-Jedda of his naturalised citizenship on the ground that that was conducive to the public good, the Secretary of State had made him stateless. The Supreme Court quoted from the Government’s own guidance in saying that it was necessary for a naturalised citizen to hold another citizenship not merely to apply for it, or have the right or the ability to apply, for the Secretary of State to be able to withdraw citizenship and in effect make them stateless, which she should not be able to do. As I have confessed before in your Lordships’ House, I am not a lawyer, and I listened with great care to those who have far greater legal expertise in this area than I do. However, it seems that by amending the law through Amendment 18A to ensure that the Secretary of State must have reasonable grounds for believing that the individual is able to acquire another citizenship, she would be able to deprive him of his British nationality in those circumstances even if it made him stateless. I think that the Minister—the noble Lord, Lord Taylor—used the phrase “recourse to apply”. However, I reread what the Immigration Minister, James Brokenshire, said in the debate in the other place. At col.191 of Commons Hansard of 7 May, he said it was important that the person was able to acquire another nationality, and repeated that at col. 192. At col. 194, he said that there should be the “ability to obtain citizenship”, but then said at col. 195 that the Home Secretary had to be,

“satisfied of their ability to seek the citizenship of another country”.—[

Official Report

, Commons, 7/5/14; col. 195.]

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We need clarity on that point. Is it a question of being able to gain citizenship or the ability to seek citizenship? All those phrases were used by James Brokenshire in the other place. The noble Lord, Lord Deben, said in your Lordships’ House on 19 March that,

“to take away someone’s citizenship, it is not reasonable to say that you assume that they can get another country’s citizenship. It is only reasonable to say that you know that they have another citizenship; anything less than that is wrong. It may not be convenient, but it is not right”.—[

Official Report

, 19/3/14; col. 213.]

I would therefore welcome further clarification from the Minister.

In the Al-Jedda case, the Secretary of State referred to the original nationality that Mr Al-Jedda held, whereas this amendment, if I have understood it correctly, refers to the Home Secretary having “reasonable grounds” to believe that they could obtain citizenship of any country. In which case, does this government amendment go further than what is required to comply with the Al-Jedda judgment?

Although the Al-Jedda judgment represented an important principle in this debate, it was not the only issue that gave us cause for concern. Questions and issues remain around both the principle and practical implications, which I hope the noble Lord will address in his response. It was the lack of certainty on those points and those that arise from the new amendment that led to the need for further, more detailed examination by a Joint Committee. Perhaps I may therefore raise the concerns that remain about the implications for our relationship with other countries. I have read the legal opinion of Professor Guy Goodwin-Gill, who is a professor of international refugee law at the University of Oxford, a senior research fellow at All Souls College, and a barrister at Blackstone Chambers. His opinion from looking at international law is that the Government’s proposals risk damaging international relations and could lead to breaches of international obligations. I know that the noble Lord rejects that, but Professor Goodwin-Gill has provided a 20-page opinion that raises a number of issues that, at the very least, should be further considered and addressed to the satisfaction of your Lordships’ House.

I greatly welcomed the Government’s commitment to respond to that opinion. I was sorry that it arrived so late on Friday in order for us to have an opportunity to look at it. I am sorry that robust responses were not available for earlier consideration. However, I have now had the opportunity to read that response. Although it deals with various treaty obligations, it does not address the practical or diplomatic implications that I raised previously. We all know that the fight against terrorism is international and global. That highlights the need for international co-operation and collaboration. We really need proper and proportionate consideration of the implications for national and international security. This amendment would allow terror suspects to be loose and undocumented in any country where they happened to be when their citizenship of the UK was revoked. When citizenship has been withdrawn from citizens who are overseas, will the country that has admitted that individual in good faith on a British passport be consulted or advised at any stage that that person has had British citizenship withdrawn from them—even after citizenship has been withdrawn?

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The noble Lord will recall that Professor Goodwin-Gill stated:

“Any state which 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, to return that person to the United Kingdom”.

The Government dispute that but the Minister confirmed to me in his letter of 25 March that the Government have not discussed the development of what was then Clause 60, on deprivation of citizenship, with other countries and do not consider it necessary to do so. I still find it quite incredible that the Government do not think that they have to consider other countries and debate this issue with them prior to implementation. In his letter, the noble Lord also relied on the statement that other countries allow for deprivations to make people stateless. He used, as the Immigration Minister, James Brokenshire, used in the other place, the Republic of Ireland and Belgium as examples. I was not aware of the position of Belgium on the issue and whether it has made anyone stateless in recent years, but the Minister could have quoted Tunisia, Lithuania, or countries that have rendered political opponents or ethnic minorities stateless—such as Zimbabwe, Burma, Serbia and Russia.

This country has a proud record over half a century of opposition to making individuals stateless. What about our relationship with, for example, the USA, Canada, Australia, France, Germany, Scandinavian countries and Italy? These countries have not taken a power to make citizens stateless. Again I looked at the response of Professor Goodwin-Gill in reply to the Government’s response. He took the view—I do not know whether this is correct; it is one of the reasons why we consider that such examination by a Joint Committee of both Houses is essential—that it would appear that Her Majesty’s Government have never accepted that another state has a right and is able unilaterally to denationalise its citizens while they are present in the UK, so making this country responsible for its residents’ safety and well-being. Are we imposing an obligation on other countries that we would not ourselves accept?

I should like to raise a second issue which was also raised in the other place and it would be helpful if the Minister could respond on this point specifically. It concerns what will happen if someone cannot obtain another citizenship despite their very best efforts to do so. The Government propose that the Home Secretary has to have reasonable grounds for believing that someone can acquire another citizenship, but what if they cannot? It has to be recognised that although someone may be entitled to apply for the citizenship of another country, they may not in practice be able to acquire it. The Minister admitted as much in his letter to me of 25 March when he said:

“The number of people affected by this new provision will be very low and not all remain stateless as some may be able to acquire or re-aquire another nationality”.

I know that that was written before the new amendment but it does not change the position of a person’s statelessness or ability to gain another citizenship.

In responding to similar questions in the other place, James Brokenshire referred to those who make no effort to obtain another citizenship. But that is a

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completely different point. If the Home Secretary’s belief that they could obtain another citizenship was reasonably held but it was wrong and they were unable to do so, what action could then be taken to avoid a lengthy period of statelessness? The Minister talked about not wanting an arbitrary time limit for such a decision to be made, but there is no time limit in the amendment for the Secretary of State to look again to see whether it was a reasonable decision which was not correct.

The Minister spoke of a limited form of leave to remain being available to those stranded in country. What form would that take and what are the state’s obligations? How does that make UK citizens safer? If someone from outside the UK cannot obtain another citizenship, what are the implications? They may not be in their country of birth or of a previous citizenship. Given that our Government have had no discussions with other countries about this, the point being made by Professor Goodwin-Gill about being returned to the UK has to be a possibility at the very least. The country that admitted them in good faith has done so as it believed them to have British citizenship at the time. They will not be admitted back into the UK so I am slightly alarmed that they might end up like the character played by Tom Hanks in the film “The Terminal”. I do not know whether the Minister has seen the film but it is based on a true story of the case of Mehran Karimi Nasseri who, having been expelled from Iran, was refused entry to London and sent back to France where he was arrested. I will not go into the details but he ended up spending 18 years in Charles de Gaulle Airport because he was stateless. That is not the only example, but I hope that it is the most extreme one. I found several cases of people being detained at airports for several weeks or months.

If the purpose of the clause is to make us safer from terrorists, we need greater clarity and certainty on what happens to those who become stateless, particularly those from outside the country. Unless there is certainty, we could end up in some kind of legal quagmire with cases being taken to court because of the lack of certainty. I am sure we all want to avoid that.

I shall touch briefly on Amendment 18B. We welcome the review outlined by the Minister. I recall that a similar amendment was tabled on Report by the noble Baroness, Lady Hamwee. This amendment differs in that the amendment of the noble Baroness referred to an annual review, which I think would be a much improved position on waiting, after the initial one-year review, for one every three years. That seems to be a very long timescale for the power that the Secretary of State wants to take.

Our concern remains that this amendment still allows for what the Supreme Court described as the “evil of statelessness”. Although the government amendment offers some concessions to the concerns raised by that particular case, I would welcome further clarity from the Minister as we are not yet convinced that the argument has been made for individuals who are terror suspects and are stateless. I am looking here at the interests of national and international security. I shall listen carefully to the debate, to the legal expertise that we have in your Lordships’ House, and to the

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Minister’s response. However, we need a full examination of this issue to ensure that we fulfil our obligations without making people stateless, given the difficulties and concerns that that raises. I beg to move.

4.15 pm

Lord Pannick (CB): My Lords, I am grateful to the Minister, Lord Taylor, to the Immigration Minister, James Brokenshire, and to the Bill team, who have devoted an enormous amount of time to this difficult issue and have held meetings with noble Lords who are concerned about it. For reasons that I will seek to explain, I think that the Government have made a very substantial concession on this issue in Amendment 18A, following the success of the amendment that I moved on Report.

Before briefly explaining the reasons for taking that view, perhaps I may mention that the original unacceptable clause—it was unacceptable—has been improved only because of a coalition, if that is not now an unacceptable political term, of the Opposition, led by the noble Baroness, Lady Smith of Basildon, who has worked tirelessly and skilfully on this issue throughout the passage of the Bill through this House, with considerable support from the Cross Benches and a very substantial Liberal Democrat rebellion on Report. I would add that there was support from the noble and learned Lord, Lord Howe of Aberavon, who also voted for the amendment. As a result of that voting decision, the new paragraph added in the House of Commons very substantially reduces the risk of leaving an individual stateless, although I recognise that such an event is still possible if the Secretary of State’s assessment, although reasonable, turns out to be inaccurate for whatever reason.

I have written to the Minister giving him notice of a number of assurances that I seek and which I consider are important to the understanding of the protections which are contained in the new paragraph. The first is this. I understand that the reasonableness of the Secretary of State’s conclusion that another nationality is open to the individual will be open to challenge in the Special Immigration Appeals Commission, and that SIAC will have the power to determine whether the Secretary of State does have reasonable grounds for her belief that the individual is able to become a national of another country. I understand from the Minister’s opening remarks that he agrees with that.

The second assurance I seek is this. Does the Minister agree that the material which is relevant to the Secretary of State’s decision on this point—that is, the ability to acquire another nationality—would be very unlikely to be secret? The material would be provided to the applicant’s lawyers so that it could be fully debated in any appeal to SIAC. I would be grateful if he could confirm that.

Thirdly, am I correct in my understanding that the new provision means that the Secretary of State has no power to take away British citizenship if the matter depends on a discretionary judgment by the foreign state? I think that the words in the new paragraph, “able to become”, must mean that the matter is in the hands of the individual, who needs only to apply to

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the foreign state, pay the relevant fee, provide the relevant documents and show their entitlement. The paragraph does not say “able to apply”. There is good reason to interpret this provision narrowly: namely, to prevent deprivation of British citizenship where it would leave people in limbo, with the risk of statelessness if the foreign country decides not to exercise any discretion in favour of the applicant. I therefore think that this provision means that at the time of deprivation of British citizenship, the individual must have a right to citizenship under the law of the foreign country. Does the Minister agree?

I seek reassurance on a fourth point. I think that the word “able”, which is the word in the new paragraph, must mean that there is no practical impediment to obtaining the foreign citizenship. For example, if there is reason to think that the foreign state will not apply its own laws, or will not do so within a reasonable time, the Secretary of State simply could not remove British citizenship. Does the Minister agree?

Fifthly, the word “able”, as well as general principles of public law must mean that the Secretary of State could not exercise this new power to take away British citizenship where, although the person is entitled to acquire the foreign citizenship, there is good reason for their being unwilling to do so. An obvious example is where the individual is a member of a group that is persecuted in the country concerned. Does the Minister agree that it would be wholly wrong and unlawful for the Secretary of State, if she accepts that those are the facts, nevertheless to go ahead and deprive that person of British citizenship?

Sixthly and finally, I think that the word “able” and the general requirement that the Minister must exercise her power in a reasonable manner must mean that the courts would apply a “reasonable link” test. By that, I mean that the clause could not be applied by reference to an individual’s rights to acquire citizenship in a country with which he or she has no close link other than an entitlement to nationality. For example, surely the Secretary of State could not rely on the entitlement of a Jewish man or woman to citizenship of the state of Israel under the law of return if the individual has no other link with the state of Israel; or rely on a wife’s right to acquire the citizenship of her husband in a country that she has never visited. I have not thought up these examples. I take them from the judgment of Lord Wilson for the Supreme Court in the Al-Jedda case last October, at paragraph 23. Therefore, the sixth question is: does the Minister agree in principle that there must be a “reasonable link” test implicit in this paragraph, so that the clause could not be used in circumstances that would, in the absence of a reasonable link, be wholly unreasonable?

On the basis of my understanding of this clause, this is a substantial and welcome concession by the Government. I hope that the Minister can reassure the House that my views are consistent with the Government’s interpretation, because it is what the Minister says that the courts may look at in future.

Lord Lester of Herne Hill (LD): My Lords, I am a member of the Joint Committee on Human Rights and I should declare an interest because, like the noble

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Lord, Lord Pannick, I am a member of Blackstone Chambers, the same chambers as Professor Goodwin-Gill. As the House will understand, barristers are not like solicitors: we are not in a firm and are perfectly capable of taking completely different views from some of our colleagues. I have of course read Guy Goodwin-Gill’s opinion and his supplementary opinions but I do not think that they focus on the particular issues, practical and otherwise, with which we are concerned in this debate.

As the noble Lord, Lord Pannick, indicated, the Joint Committee on Human Rights welcomes the concession that has been made. I was one of the rebels—in the words of the noble Lord, Lord Pannick—and am personally satisfied, for the reasons that the noble Lord gave, that the concessions obtained in the other House ought to be acceptable and are in accordance both with international law and with the principles of our own constitutional system of government and law. However, I also agree with the noble Lord, Lord Pannick, that the questions that he has raised are the right ones, and my support for the Government’s position is dependent on satisfactory assurances being given. It is very important that they are given, because one of the advantages of the Pepper v Hart doctrine is that what is said by the Minister in reply will give guidance about how this important provision is to be interpreted.

I very much welcome the shift that has occurred and the fact that it has occurred because of pressure from across the whole House and not simply from one party. I do not agree with the position now being taken by Her Majesty’s Opposition—unless it is a probing position. If they were to press their difference of opinion to a vote, I would support the Government.

Lord Brown of Eaton-under-Heywood (CB): My Lords, on Report, I added my name to those of the noble Lord, Lord Pannick, and the noble Baroness, Lady Smith, in proposing what is now Amendment 18. I did so because, consistently with what I had previously said in Committee, I was so strongly opposed to the United Kingdom lending itself to what has been called the evil of statelessness, with all the reputational damage which that would have occasioned to this country. It seemed to me at that stage imperative that there should be pre-legislative scrutiny, as Amendment 18 essentially proposes, before any such extreme position should be adopted.

On Report, I recognised that amending the legislation, short of leaving people stateless, could indeed well be justified. I will quote just a sentence from what I said at that point:

“By all means, let the Government reverse the decision last year of the Supreme Court in Al-Jedda and legislate, as Lord Wilson in his judgment there implicitly suggested, to allow us to deprive someone of their British citizenship, provided that they can then immediately acquire the nationality of another state, as, indeed, it was assumed in the course of the litigation in that case that Mr Al-Jedda himself could have done”.—[Official Report, 7/4/14; col. 1174.]

Noble Lords should remember that this power is to be available only in the case of someone who has gained his British citizenship by naturalisation and who then betrays the trust that we as a nation put in him and

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acts in a way which is seriously prejudicial to the vital interests of this country. Provided that that person can then become a national of another country so as not to be rendered stateless, as was assumed in Mr Al-Jedda’s case, I see no real objection to our depriving him of the protection that we ourselves earlier conferred upon him. The Government’s very welcome amendments seem to limit the power precisely to these circumstances. My understanding of the new paragraph that it is proposed be inserted into the nationality Act under Amendment 18A is that it is precisely the same as that of the noble Lord, Lord Pannick. I will not go into all the points again, but it is plain that it refers to a present entitlement and not simply to a right to apply. The language is “to become” a national of another country, not “to seek to become”. Provided that that is so and provided that the Minister gives—as I fully expect him to—all the assurances that the noble Lord, Lord Pannick, has invited him to give, the Government have properly given way on this critical issue and, if the matter is put to the vote, I shall support the Government.

4.30 pm

Lord Macdonald of River Glaven (LD): My Lords, I also put my name to the amendment at Report. I have listened with great care to what the noble Lord, Lord Pannick, has said. It seems that his remarks, if they are adopted by the Government, indicate that the shift in the Government’s position is substantial. If they are not adopted by the Government, they amount to a demolition of the substance of this shift. I see the noble Lord, Lord Pannick, nodding at that. I, for one, shall be listening extremely carefully to the Minister’s response to the six points made by the noble Lord, Lord Pannick.

I want to remind the House why it is important that the Government acknowledge those points. The Home Secretary’s reasonable belief that a man or a woman may avail themselves of the nationality of another country will not assist a citizen in whose case that belief turns out to be ill-founded. He or she will be deprived, in Hannah Arendt’s phrase, of the “right to have rights” and locked out of any mechanism at all for achieving those rights for ever, until another state decides to take this individual on. If that is the position that the Government’s shift leaves us in, as a potential result of decision-making in the Home Office, then this shift does not go far enough.

For my part, I remain of the view that the United Kingdom should not embrace a policy where one of its potential results is statelessness, associated with so many of the degenerate states of the 20th century, and where the outcome, if it is statelessness, is so hostile to human dignity in its most basic form. This is particularly so where that policy is also bound to strike against the international accord that is so central to the maintenance of security both between and within states. In the long run, we cannot and will not make the United Kingdom a safer place by dumping our security threats abroad, sometimes into states where the capacity for dealing with them is completely debased, so that they simply grow. I agree with Professor Goodwin-Gill that a rule-of-law country accepting a United Kingdom citizen

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on the basis of his passport, lawfully certified and issued by the United Kingdom Government, will be perfectly entitled to respond to our unilateral withdrawal of that passport by insisting that the United Kingdom take this individual back. Which of your Lordships can doubt that if the tables were reversed we would take precisely the same approach?

I will conclude by speaking frankly. The history of this matter is that it appears to have been conjured up to serve an entirely party-political purpose in the midst of a debate in the other place. It is illiberal, it is an affront to civilised international relations, it will not improve our security and, in all likelihood, it threatens a legal and diplomatic quagmire, to no useful purpose and to the detriment of the reputation of the United Kingdom.

Baroness Lister of Burtersett (Lab): My Lords, it is a pleasure to follow the noble Lord, Lord Macdonald, who made a very powerful speech. I welcome the fact that there has been movement on the part of the Government in these amendments, and I very much welcome the helpful questions posed by the noble Lord, Lord Pannick, who has played such a role in getting us to where we are now. However, as the noble Lord, Lord Pannick, acknowledged, some people may still be made stateless as a result of the clause. Therefore, I am not as happy as some other noble Lords appear to be—or perhaps content is the word—and I support Motion B1.

In the Commons, some of the most pertinent questioning came from the Government’s own Back Benches. Sir Richard Shepherd asked,

“how the people of Britain will know that the action has been taken in a rational and reasonable way, when it is obscured from public view”.—[

Official Repo

rt, Commons, 7/5/14; col. 194.]

Dr Julian Huppert asked:

“What will happen if somebody in the UK goes through the process, the Home Secretary believes that they are able to get citizenship from another country and they make a bona fide application for that citizenship, but it is turned down?”.

In effect, this was also the question posed today by my noble friend. When pressed—and he had to be pressed—the Minister, James Brokenshire, responded that they could be given,

“limited restricted leave to remain”.—[

Official Report

, Commons, 7/5/14; col. 196.]

But that is not a satisfactory substitute for citizenship and the rights that go with it.

My noble friend Lady Kennedy of The Shaws and others have expressed very grave concerns that the Government may well be waiting for someone to be out of the country to deprive them of citizenship. One concern of the Joint Committee on Human Rights was how often that has happened under the current powers. I very much welcome the fact that the Minister said he has responded to the Joint Committee’s latest letter about that and that he will make that information available to whoever is given responsibility for the review. I thank him for that.

In the Commons, James Brokenshire prayed in aid the fact that the matter had been considered by the Joint Committee on Human Rights as well as in another place—that is, here—to argue that,

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“it is not correct to say that it has not been subject to careful consideration”.—[

Official Report

, Commons, 7/5/14; col. 213.]

Indeed, the Minister made the same point earlier. But the Joint Committee on Human Rights was very critical of the speed with which this measure was introduced and we—I am a member of the committee—made it very clear that we believed that a public consultation,

“would have made for better informed parliamentary scrutiny of the Government’s proposal”,

and that the Joint Committee that was proposed would allow for just that kind of proper scrutiny.

Your Lordships’ House made it very clear that it did not consider that there had been sufficient scrutiny by passing the amendment with such a significant majority. The only thing that has happened since then is that the House of Commons has debated for only 90 minutes something of such grave constitutional and moral importance. I really think that the case for a Joint Committee still stands. Indeed, the Home Affairs Select Committee, which published its report on counterterrorism after the debate in the Commons, has supported Lords Amendment 18, which underlines the point made by a number of organisations outside this House that the measure does not guarantee security against terrorism in any way.

I, too, have read the legal debate between the Government and Professor Goodwin-Gill. As a non-lawyer, I am not in a position to be able to judge that debate. Surely, however, the fact that there is such disagreement reinforces the case for a Joint Committee to tease out these very serious legal matters. The Floor of the House is not the place to do that. As the noble Lord, Lord Macdonald, has already made clear, so much is at stake. I quoted earlier the noble Lord, Lord Deben, who is now in his place, because what he said was so important. He said:

“Statelessness is one of the most terrible things that can befall anyone”.—[Official Report, 19/3/14; col. 212.]

The Minister spoke of the evil of statelessness. Another expert in this area said that statelessness was a recipe for exclusion, precariousness and dispossession.

We have not completely averted the danger that we will make somebody stateless as a result of the amendment, welcome as it is. I hope, therefore, that noble Lords will stand firm and support Motion B1 because the amendment does not provide a cast-iron guarantee against the evil of statelessness.

Lord Avebury (LD):Like other noble Lords, I welcome the concessions that have been made by the Government which do, to an extent—although this could be argued—reduce the risk that an individual might become stateless. However, the risk still exists and I still have some concerns apart from those that have been expressed so ably by the noble Lord, Lord Pannick. I agree that we need answers to those questions, but I would like to touch on some other concerns.

We have already heard that the Government recognise what the Supreme Court called, in the case of Al-Jedda, “the evil of statelessness”. They now purport to address that evil by providing in their Amendment 18A that the Secretary of State has “reasonable grounds for believing” that the individual she is depriving of his citizenship will be able to become a citizen of some

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other state to which he formerly belonged. That assumption has been made by other states from time to time, including—as the Immigration Law Practitioners’ Association has pointed out—the Dominican Republic, in the case of persons born in Haiti, and Zimbabwe, in the case of all residents who might have had a claim through having been born in some other country. In the UK, too, the Government asserted for many years that persons of Indian origin who lived in Hong Kong had the right to reclaim the nationality of China—until finally in 2006 we satisfied them that they were wrong.

No doubt Ministers will say that what is now proposed is different, because instead of treating a whole class of persons the same, each case will be examined individually. However, in the case of the people who were formerly dual Malaysians and British Overseas Citizens, and had renounced their Malaysian citizenship in the hope of getting full British citizenship, they had all applied individually and had all been rejected. It was only after several years of correspondence and meetings with Ministers that in October 2013 the then Minister wrote to me asserting that an agreement had been reached with the former Malaysians on a scheme under which they would return to their country of origin, where they could enter a process of regaining the equivalent of indefinite leave to remain after five years; and after a further unspecified time, they would be able to resume Malaysian citizenship. During the whole of that period they would of course remain effectively stateless, as they had been during the latter years of their residence in the United Kingdom.

I wrote to the new Minister, James Brokenshire, on 11 February, asking if I could have a copy of the agreement he had reached with the Malaysians, having had no response to a verbal request made to his predecessor. I also asked about the experience of the one guinea pig returnee under the new arrangement. Having had no answer, I wrote again on 15 March, reminding the Minister of my earlier letter. After two further months, I had had no reply until, finally, after a telephone call this morning, the Minister’s reply arrived by e-mail.

4.45 pm

It was not encouraging. There is no written agreement but only guidelines, and the five-year residence permits that are to be granted to returnees do not provide any written assurance of entitlements, nor do they offer guarantees of citizenship at the end of the five years. In the mean time, the Malaysian Home Minister said on 11 April that,

“the Government will not give automatic citizenship to any Malaysians who have renounced citizenship and as an alternative … they will have to be re-examined and may be granted resident pass only ... This is because among those people are some who ripped up their passport while abroad, who hold hatred towards this country … Some of them stabbed our country in the back”.

My point is that when we have stateless people here in the UK and we say that we have reached a solution with the country of their former nationality, it can take years to sort out. It can take further years for the individuals concerned to recover their previous citizenship—if they ever do—when only the vaguest assurances have been given. When the Secretary of State claims that she has “reason to believe” that

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someone she is depriving of UK citizenship in a foreign country can regain his citizenship there, she ought to be obliged to state the reasons for her belief and her statement should be subject to judicial review, rather than perhaps being relegated to SIAC where the public have no idea whether her reasons were satisfactory.

Obviously, as ILPA points out, the Secretary of State could not have such a belief about a war-torn country such as Syria, from which millions have had to flee, nor about a country from which the person is a refugee. However, the Government do not envisage a situation where there are no grounds on which an order could be made for a reason of that kind. Could my noble friend say in his reply whether, in the guidance that we understand they propose to issue, exceptions of this kind will be clearly defined?

I turn now to the exchanges the Government had with Professor Guy Goodwin-Gill—referred to by the noble Baroness, Lady Smith of Basildon. Those exchanges have been placed in the Library at my request. As the professor said, many of the issues covered in those exchanges will need to be settled by litigation, which is likely to be prolonged, expensive and divisive, particularly where children and families are forced apart. One of the professor’s main concerns is what he thinks of as the simple issue of passports and returnability. The Secretary of State may have reasonably believed that the person could obtain the citizenship of Saudi Arabia, for example, but Saudi Arabia has no proper nationality law: it is entirely at the discretion of the monarch. The same thing goes for other states in the Gulf, such as Bahrain.

The professor points out that the international regime regulating the movement of people between states is premised on the credit accorded to nationally issued passports the legally binding guarantee of returnability attaching to those documents and the implicit prohibition on a state unilaterally resiling from that guarantee in violation of the rights of other states. The combined resources of the FCO and Home Office have been unable to provide a single instance indicating either that a national passport has not been treated in international law as guaranteeing returnability, or that a state has refused to accept back persons admitted to another country on the basis of such a passport. I still have these concerns, in addition to the ones so ably expressed by the noble Lord, Lord Pannick, and my noble friend and colleague Lord Macdonald.

Lord Hope of Craighead: My Lords, I will add a footnote to the points made by the noble Lord, Lord Pannick, and my noble and learned friend Lord Brown of Eaton-under-Heywood. I join them in welcoming Amendment 18A and Amendment 18B, which falls to be read together with it. Two questions lie behind one’s examination of Amendment 18A. The first concerns the point mentioned by the Minister once, if not twice. Is the wording of the provision compatible with our international obligations? The second concerns how the provision will work in practice. This will be the subject of the reviews referred to in Amendment 18B.

On the first point, the Minister said—I think twice, possibly more often—that the wording of the provision is deliberately narrow. He said it was narrowly worded

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and precisely targeted; it had to be narrowly worded and precisely targeted to meet the requirements of the convention. The international obligations are found in the European convention on nationality of 1997. It is worth reminding ourselves that the preamble says that it is concerned to avoid cases of statelessness “as far as possible”. The principles set out in Article 4 include that,

“everyone has the right to a nationality … statelessness shall be avoided”,

and,

“no one shall be arbitrarily deprived of his or her nationality”.

I think it is well known that Section 40 of the British Nationality Act 1981, as substituted by the Nationality, Immigration and Asylum Act 2002, was framed with very close regard to the provisions of that convention. One can see it, too, in the amendments introduced by the Bill. The second condition set out in new Section 40(4A) refers to the situation where,

“the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom”.

The phrase “the vital interests” is a precise quotation from Article 7(1)(d) of the convention and one can see how closely tied the wording of the statute is to that of the convention. It is important that the wording should be narrowly framed in order to meet what the preamble and Article 4 were talking about, but that has another significance when one looks at how the wording will work in practice. It is well known that the courts will construe legislation on the assumption that Parliament has intended to legislate in accordance with this country’s international obligations. One would expect a court to have regard to the wording of the convention and to construe the words narrowly. They are narrowly worded but they will be narrowly construed, too. The key words already identified are “is able”. It is not “maybe” or a possibility; it is “is”, in the present tense. “Able” is itself a powerful word, and the new Section refers to being able to become a national of a country, not to an ability to apply or be considered.

One other point is worth mentioning to appreciate the full package with which this House has been presented. Section 40of the British Nationality Act, as amended, describes the obligation of the Secretary of State in the event of an order being made under that section. It states:

“Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying … that the Secretary of State has decided to make and order”—

this is really important—

“the reasons for the order, and … the… right of appeal”.

These things must be set out in the written statement. Particularly important is the reference to reasons, which will be examined with great care should the matter go to appeal.

There is just one point that is worth bearing in mind: the reference to rights of appeal. Concern has been expressed by Liberty, and perhaps others, about the situation in which somebody would find themselves when faced with a written statement of this kind when

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abroad and the prospect of an order of this kind being made against them. It would seem to require exercising the right of appeal from abroad. That is a practical problem which those individuals might face.

My concern is whether the review referred to in Amendment 18B would be capable of picking up practical issues of that kind. It is difficult for us at this stage and in these situations to forecast the future with any precision, but that is the kind of practical point—envisaging how the issue will be worked out in practice—that will require very careful consideration. The more disadvantaged somebody would be by having to exercise his right of appeal abroad, the more concerned one would be about the fairness of the provision and, indeed, its compatibility with the convention. When the Minister replies, will he be good enough to cover that point about the scope of the review and whether it would include the kind of practical problem to which I have just referred?

Baroness Kennedy of The Shaws (Lab): I have concerns about the shift by the Government, although I welcome that there has been a shift in the way that has already been described. My concern is that reasonable grounds to believe that a person may be able to acquire another nationality does not really deal with the difficulty we face in the circumstances in which these cases arise. The cases that have taken place so far in which people have had their citizenship removed have almost invariably—certainly in my experience—involved persons abroad. The reason given is that the person is a threat to national security. I raise this question, among those already raised by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope: would another country seriously consider giving nationality, even to someone who might have the ability to apply for nationality of that country, if it knew that British citizenship had been removed on the grounds that the person was believed to be in some way linked to, or to condone, international terrorism? Do we seriously believe that another state is likely to grant nationality to someone where that has been the basis for the removal of citizenship by Britain? My grandparents were Irish, and I am sure that I am entitled to apply for an Irish passport, although I have never done so, but would Ireland seriously be interested in acquiring a citizen who has already been deemed by Britain to be involved in supporting, condoning or in some way furthering terrorism? We have to be real about the circumstances that we are contemplating.

I want to add a number of questions to the ones that have already been asked.

Lord Quirk (CB):Does the noble Baroness not note that there is a difference between the case she mentioned—of someone who would almost certainly be refused citizenship by the putative country—and the wording here, which is, “able to become”, not, as the noble Lord, Lord Pannick, stressed, “able to apply”? Therefore, the premise is that the Secretary of State had already considered the point that the noble Baroness made and that she was convinced that were the person concerned to say, “I wish to be”, he or she would become a citizen of the said country.

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5 pm

Baroness Kennedy of The Shaws: There can be all manner of speculation about whether, if someone was born in, for example, Somalia but left at the age of three, Somalia might afford citizenship to them. Would Somalia give them citizenship in such circumstances if Britain had removed citizenship on the basis that they were a threat to national security here? Would Pakistan? Would Syria? Would Egypt? The test of reasonable grounds for believing that the person would be able to acquire another nationality does not answer that question. What if they cannot do so? That is the question that my noble friend Lady Smith raised, and at the moment it has not been answered satisfactorily. I wait with interest to hear what the Minister says.

There is a second matter: what constitutes service? It ties in with the point raised by the noble and learned Lord, Lord Hope. What constitutes service when somebody is abroad? Is it good enough to serve notice on relatives living in Britain? Why should it be assumed that they would be able to inform adequately a person who is living somewhere else that they have had their citizenship removed? I would be very interested to hear the Minister’s response to what constitutes service. If someone is in a place such as Syria or Somalia, what is the likelihood of being able to serve notice—in the way that we understand service normally in law—on somebody in a war-torn area or a place where there is chaos and little in the way of government as we understand it?

What do we do about the issue of appeal, which was just mentioned by the noble and learned Lord, Lord Hope? At the moment, the normal period for appeal in the rules of citizenship is 28 days, and nothing suggests that that would change. Is someone in Somalia expected to be able to appeal within 28 days, not having been in receipt of service but having been informed days before, over a very poor telephone line, that they have the right of appeal but time is about to run out? What is the answer to the question of the appeal period?

If a person is unable to acquire another citizenship, will the withdrawal of citizenship then be negated? Will it fall away, and will the person then reacquire their British citizenship? Are we giving that as a guarantee? Will we see reinstatement if no other state is prepared to follow through?

I ask those who are international lawyers, or international lawyers advising the Government: when someone has a right to citizenship, is there not always a level of discretion in a state to say, “Yes, you are entitled because you were born here, but then you went away and you became a British citizen, but we are not going to allow you to apply and become a citizen of this country now because we believe that there is intelligence of your conducting yourself in a way that might be inimical to our national interests”? The question is much more complicated than is being suggested by the way in which the Government are seeking to appease us at this moment. That is why those of us who were concerned about this issue wanted there to be a much more considered review before the law was changed. I fall in line with others: I should like very clear answers to some of the questions raised by the noble Lords, Lord Pannick and Lord

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Macdonald, and by the noble and learned Lord, Lord Hope, and to the questions that I have raised, before I would be satisfied that the movement by the Government has been far enough.

This is an issue of high moral import. This is an issue that affects not only us here, but which will be looked at around the world. There will be implications for people in other parts of the world, too. I ask the Government to take great care over the answers that are given because, as we have heard from others, courts will deal with applications, appeals and reviews based on some of the answers given today.

Baroness Hamwee: My Lords, noble Lords will be glad to know that I will be as energetic as I can in editing my remarks to exclude questions which have already been asked. However, I retain some points and concerns on the amendments, including on the principle.

Questions have been asked about what is meant by being “able”, and also about the practicalities of the matter. The Minister in the Commons said: “I am sure that”, the Secretary of State,

“would … have to consider practical issues and the other surrounding circumstances … She will, therefore, wish to consider those other practical or logistical arrangements as part of her determination”.—[

Official Report

, Commons, 7/5/14; col. 193].

Can my noble friend give the House assurances as to how all that will actually be reflected in statute or, if not in statute, then in guidelines? I mention here the guidelines published by the UNHCR on statelessness, which specifically refer to the application of nationality laws in practice being,

“a mixed question of fact and law”.

On the right of appeal, the noble Lord, Lord Pannick, has said that he trusts that there will be an assurance that the issues will be dealt with as open evidence. I add to that, while having the same hope, that if there are aspects which cannot be dealt with openly, will the provisions—I do not much like them, but they are what we have got—on gisting and special advocates apply? I have seen some doubt as to whether that would be the case.

On the amendment for review, I am glad that the Government have tabled this, as I did both in Committee and on Report. However, I stressed then the importance of independence. That term is missing from the Government’s amendment. Perhaps I can put it this way to my noble friend: can he confirm unequivocally that the review will not be in the hands of somebody who is within the Home Office?

Like others, I would welcome this being a matter for the independent reviewer of terrorism legislation. Concern has been expressed about resources, but whoever does the job is going to need the resources to do the job. I, too, have a question about why, after the first year, it should be triennial. If we are dealing with small numbers, then the job should be correspondingly small. I also ask the Minister to give us an assurance that the Government will support the reviewer undertaking more frequent reviews if he considers that they should be undertaken.

In debate, we have barely touched on the impact on communities of whom an individual in question is a member. I would support the appointment of the

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independent reviewer of terrorism legislation, because that postholder deals with people who are in rather connected situations where other measures might be applicable—and, indeed, might apply if deprivation is not to be used. It is clear that there is a danger that the use of the state’s powers, which focus on neutralising—if that is the word—the individual without considering the negative effect on the community, is an issue, as well as the specifics for the individual and their family. I am sure that the independent reviewer would focus on that as well.

Lord Taylor of Holbeach: My Lords, this has been an extremely good debate: a serious one, on a very serious issue. We have been fortunate to be able to hear from a large and well qualified body of the Members of this House. I am grateful to all noble Lords who have spoken, and I will do my best to provide those assurances that have been sought by noble Lords. The noble Lord, Lord Pannick, in welcoming the Government’s move in tabling their amendments in the Commons, wanted assurances. I am most grateful to him for letting me have sight of the things he was concerned about so that I was able to address them. I can say the same of my noble friend Lady Hamwee, who did not raise all the issues she had intended to because they had been raised by other noble Lords. However, I think that that most noble Lords have a similar need for reassurance, and I am well aware of the responsibility to provide that assurance to Members of the House.

Perhaps most important is the whole question of the meaning of “reasonable grounds to believe” and whether those reasonable grounds of belief are appropriate for determining the ability of a person to acquire another nationality. The Home Secretary’s decision must be “reasonable” based on the evidence available to her on the nationality laws of those countries and the person’s circumstances. That will include having regard to any practical arrangements, but those will vary from case to case, and it is not possible or appropriate to speculate about what weight those issues would carry in a particular case. “Satisfied” has been interpreted to mean that SIAC decides for itself whether a person is a dual national. In some circumstances a person, after being deprived of British citizenship, may take steps which guarantee that another country will not recognise him or her as a national. The appeal should therefore review the decision at the time it was made, which is why the phrase “reasonable grounds to believe” instead of “satisfied” is used.

Both the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy of The Shaws, asked what the position would be if the foreign state had some discretion in whether to approve an individual’s request for citizenship. I think that the noble Baroness went as far as to say that she thought that there were likely to be grounds for discretion in almost any case. The clause refers to whether under the laws of a country or territory a person is able to acquire the nationality of that country. The key issue will be whether the Secretary of State reasonably believes that they are able to acquire the nationality. It does not say that the person must have a right—an automatic entitlement—to that

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other nationality. Where there is a discretionary judgment there may be reasonable grounds to believe that the discretion will be exercised. However, reasonableness would require something more than saying that the person should apply for the exercise of a general discretion to grant citizenship to any country that has such discretion. I hope I make myself clear on that. The Home Secretary must have reasonable grounds to believe that, at the end of any application process—if one is required—the person will become a national of another country.

5.15 pm

The noble Lord, Lord Pannick, asked whether there was a reasonable link test, which would mean, for example, that the use of the power would be limited to cases where the person would be reacquiring a citizenship that they once held. In most cases, the decision will be made on the Secretary of State’s assessment of whether the person can reacquire a nationality that has previously been held by that individual. But we cannot rule out circumstances in which a person has recourse to a nationality that they have not held recently. As we have noted, the nationality laws of other countries can be very complex and any decision will be entirely case-specific. We cannot speculate on the way in which an overseas jurisdiction would act under its own laws. The duty of the Home Secretary will be to take a decision on whether she reasonably believes that the person is able under the law of another country to acquire another nationality.

The noble Baroness, Lady Smith, raised the question of what would happen in the event that the other citizenship is not granted and the other individual is abroad. The prime consideration for the Home Secretary is the operation of the law within those countries. However, as part of the assessment made by the Home Secretary, she will have regard to the practicalities associated with acquiring that citizenship. As I set out earlier, the Home Secretary will consider the evidence available to her on the relevant nationality laws of those countries and the person’s circumstances; she will not be permitted to take deprivation action when she does not have reason to believe that the person has a right in law to become a national of that country. The nationality laws of other countries can be complex, and every case will be different. We do not propose to issue guidelines, but the independent reviewer will look at how the power is used in practice and Parliament will have his report and be able to debate it.

As I said, the wording of the review reflects the statutory provisions for the review. I can assure my noble friend Lady Hamwee that the person who carries out these reviews will be independent. Our amendment sets out the statutory requirement for reviews to be undertaken on the operation of this power. If issues are raised in the first review period that may require further attention, the Home Secretary would, of course, consider whether she should commission a further review within a period of three years. I hope that that helps my noble friend Lady Hamwee.

The noble Baroness, Lady Smith, asked whether it was about the ability to seek or to acquire. The whole point is that it is about the ability to acquire another nationality. She asked me to clarify when a person

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need only have the ability to seek another nationality rather than acquiring it. The terms of the clause are clear: the Home Secretary must reasonably believe that the person can, under the law of another country, gain the nationality of that country. The Secretary of State will make the decision based on the information that she has before her. We cannot have time limits, as the onus is on the individual to take the necessary action. As I said when I spoke earlier, these are dangerous individuals—and I am sure that the noble Baroness will understand the reason for us debating these issues today—who are likely to seek to create barriers to acquiring citizenship.

The noble Baroness also asked whether we should have consulted other countries about the introduction of the power. She suggested that we needed to do so, but we cannot prejudge which countries will be involved in future deprivation decisions. The circumstances of each case will be different, and it would be impossible to consult all countries on a theoretical question. We need to act in the interests of the national security of the United Kingdom, and what is important is that it is clear that we are acting within our international obligations and under the law. In the context of an individual case, we would not rule out consulting another country, but that must not be a requirement.

The noble Baroness, Lady Smith, and, indeed, my noble friend Lord Macdonald of River Glaven asked about comparisons with states which also have deprivation laws. We cannot compare a carefully considered decision about an individual who presents a real national security risk to the UK with provisions in states where there has been mass deprivation on the basis of ethnicity, for example. My noble friend Lord Macdonald and others also asked whether the UK would have to admit people who had been refused while they were abroad. Noble Lords have repeated the view of Professor Goodwin-Gill that other states would be entitled to return deprived individuals. I have said in previous debates that we do not agree with this. The UK has a very limited obligation to readmit people we have deprived and there is no general obligation in international law in this regard.

My noble friend Lord Macdonald and the noble Baroness, Lady Lister of Burtersett, talked about depriving an individual in the UK and asked whether it made them less of a threat. The ultimate aim of deprivation is to remove an individual from the UK. However, we accept that this is not always possible. Deprivation is just one of a number of tools that we can use either on its own or in conjunction with other immigration powers to disrupt the national security threat posed by certain individuals. By removing an individual’s ability to seek a British passport and to enter and remain in the UK, deprivation can help by reducing the direct threat an individual poses to the UK—for example, by precluding them from travelling under the protection of a British passport to further the development of terrorist networks.

The noble Baroness, Lady Lister, talked about those unable to reacquire nationalities, thereby giving them restricted leave to remain, and asked whether this was a substitute for citizenship. No, it is not. A small number of dangerous individuals are involved in this

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issue. I remind the House that it is a matter of principle that these people should not be British. The Home Secretary’s duty is to take a decision based on her reasonable grounds for believing that the person is able to become a national of another country. My noble friend Lord Avebury asked whether guidelines were available on assessing those grounds and on situations where the Home Secretary cannot deprive persons of their citizenship. As I set out earlier, the Home Secretary will consider the evidence available to her on the nationality laws of the relevant countries and the persons’ circumstances. She will not be permitted to take deprivation action where she does not reasonably believe that the person has a right in law to become a national of the relevant country. The nationality laws of other countries can be complex and every case will be different. We do not propose to issue guidelines but the independent reviewer will look at how the power is used in practice, and Parliament will have his report and be able to debate it. The noble and learned Lord, Lord Hope of Craighead, asked whether the reviewer would look at the practicalities of whether people could appeal. The reviewer will look at how the power has been used and no elements or issues are off limits to him in considering its operation.

The noble Baroness, Lady Kennedy, asked how we notify someone of a decision when that person is outside the UK. Regulation 10 of the British Nationality (General) Regulations 2003 sets out the procedures for notifying a person of a decision, including when the person is outside the UK at the time. They provide that where the person’s whereabouts are known, the decision is served by delivering it to them personally or by sending it to them by post. Where that person’s whereabouts are not known, the decision is served by sending it by post in a letter addressed to them at their last known address. That is customary practice in government. We cannot require another state to act as we would wish, but that may be one of the practicalities that the Home Secretary has to consider when deciding whether to deprive somebody of their nationality. I cannot be drawn on speculating on the exact position in future cases. They will be very fact-specific and I hope that I have emphasised that in the way in which I have presented my answers to noble Lords.