17:37 - Division on Motion B1 - Ayes: 193 / Noes: 286 - Motion B1 disagreed.
Lord Taylor of Holbeach
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
“Child trafficking guardians for all potential child victims of trafficking in human beings
(1) If a relevant child has arrived in the United Kingdom and is a potential victim of trafficking in human beings, an independent child trafficking guardian shall be appointed to represent the best interests of that child.
(2) The child trafficking guardian shall have the following responsibilities to— (a) advocate that all decisions relating to the child are made in the child’s best interest;
(b) ascertain the child’s wishes and feelings in relation to those decisions;
(c) advocate for the child to receive appropriate care, safe accommodation, medical treatment, including psychological assistance, education, translation and interpretation services as required;
(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.
(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.”
24A: Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.
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?
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.
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 Erskine May 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 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?
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.
Lord Taylor of Holbeach
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
“(1) A Committee of members of both Houses of Parliament shall be established to consider and report on whether section 40 of the British Nationality Act
1981 (deprivation of citizenship) should be amended to enable the Secretary of State to deprive a person of their citizenship if—
(a) the citizenship status results from the person’s naturalisation, and
(b) 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, any of the islands, or any British Overseas Territory, even if to do so would have the effect of making the person stateless.
(2) The Committee shall consist of six members of the House of Lords nominated by the Chairman of Committees, and six members of the House of Commons nominated by the Speaker of the House of Commons, to be appointed on the passing of this Act to serve for the duration of the present Parliament.
(3) Any casual vacancy occurring by reason of the death, resignation or incapacity of a member of the committee shall be filled by the nomination of a member by the Chairman of Committees or the Speaker of the House of Commons, as the case may be.
(4) The quorum of the committee shall be two members of each House and the committee shall be entitled to sit and to transact business whether Parliament be sitting or not, and notwithstanding a vacancy in the membership of the committee.
(5) Subject to the above provisions, the committee may regulate its own procedure.”
Commons Disagreement and Amendments to the words so restored to the Bill
The Commons disagree to Lords Amendment No. 18 and propose Amendments 18A and 18B to the words so restored to the Bill—
“(3) After section 40A of the British Nationality Act 1981 insert—
“40B Review of power under section 40(4A)
(1) The Secretary of State must arrange for a review of the operation of the relevant deprivation power to be carried out in relation to each of the following periods—
(a) the initial one year period;
(b) each subsequent three year period.
(2) The “relevant deprivation power” is the power to make orders under section 40(2) to deprive persons of a citizenship status in the circumstances set out in section 40(4A).
(3) A review must be completed as soon as practicable after the end of the period to which the review relates.
(4) As soon as practicable after a person has carried out a review in relation to a particular period, the person must—
(a) produce a report of the outcome of the review, and
(b) send a copy of the report to the Secretary of State.
(5) The Secretary of State must lay before each House of Parliament a copy of each report sent under subsection (4)(b).
(6) The Secretary of State may, after consultation with the person who produced the report, exclude a part of the report from the copy laid before Parliament if the Secretary of State is of the opinion that it would be contrary to the public interest or prejudicial to national security for that part of the report to be made public.
(7) The Secretary of State may—
(a) make such payments as the Secretary of State thinks appropriate in connection with the carrying out of a review, and
(b) make such other arrangements as the Secretary of State thinks appropriate in connection with the carrying out of a review (including arrangements for the provision of staff, other resources and facilities).
(8) In this section—
“initial one year period” means the period of one year beginning with the day when section 40(4A) comes into force;
“subsequent three year period” means a period of three years beginning with the first day after the most recent of—
(a) the initial one year period, or
(b) the most recent subsequent three year period.”
Lord Taylor of Holbeach
My Lords, 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 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 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 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.
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 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 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.
Lord Pannick
If I understand him correctly, the Minister is saying that the application of this clause will depend upon the particular facts of the particular case. Can I ask him whether, among the relevant facts that the Secretary of State will take into account in deciding whether to apply this clause, and how it should apply, she will consider whether the individual has any link with the country concerned other than the ability to apply for nationality, and whether the relevant facts will also include whether the individual has a good reason for not wanting to apply for nationality in that country—for example, because of persecution?
Lord Taylor of Holbeach
I certainly can confirm to the noble Lord that one of the factors that has to be borne in mind by a Home Secretary considering these matters is the question of possible persecution. I assure the noble Lord on that in relation to the specific case that he mentioned and on the relevance of all factors that may impinge on a decision, which would include the ability of the person to acquire nationality in another country. They will be considered fully by the Home Secretary in all respects. The noble Lord asked about whether the person had an association and so on would be considered. I am sure that these are the sorts of things that the Home Secretary will have to consider in considering whether to exercise the powers in this clause. I am grateful to the noble Lord. He has been a great encouragement in the initial meetings that we had when we discussed these issues. Incidentally, the House should know that we are very much at the position that was suggested by a number of noble Lords right at the beginning; I am pleased that I have been able to satisfy some of the learned opinion that has been available to us here in the House.
Lord Taylor of Holbeach
I am sure that the Home Secretary will not exercise powers, which are clearly very important powers, carelessly or in any way that would damage the interests of the United Kingdom. I can assure the noble Lord that all such factors will be considered by the Home Secretary when she considers the question of deprivation.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for the time he has taken and the effort he has made to address the points that have been raised in the debate. I concur entirely with his remarks about internal and international security. Obviously, the first duty of any Government is to keep their citizens safe and secure at all times. There has to be consideration of those issues when they are brought before your Lordships’ House. I can assure him that our consideration of these issues has at its heart the security of this nation and our international obligations to tackle terrorism. As the noble Lord said, I am grateful to all those who have spoken in this debate. We have benefited from substantial legal expertise. I am grateful to my noble friend Lady Lister for confessing that, like the Minister and me, she is not a lawyer. It is significant that even with the legal expertise in your Lordships’ House there is no complete agreement among lawyers, either. We made that point earlier.
I welcome the fact that the Government have moved away from the position that they took previously when the issue was debated in Committee and on Report. I welcome the answers given by the Minister. A lot of the debate hinges on one particular issue. I am grateful for the advice given to me by the noble Lord, Lord Pannick, in the conversations we have had. One of his questions summed up clearly the issue of the power to take away British citizenship if it relies on a discretionary power of another state. The noble Lord was very honest in his response to that. We have no power to know what another state will do. Other states have discretionary powers on whether to make people citizens.
The Government’s Motion rests on whether somebody is able to obtain citizenship. It hangs on the interpretation of that. We have concerns in that we want to avoid at all costs somebody becoming stateless—the evil of statelessness via the Supreme Court—and the dangers that that would bring to citizens of this country and abroad. I mentioned that James Brokenshire, the Minister in the other place, gave three different interpretations of what being able to obtain other citizenship could mean. If somebody is unable to obtain another citizenship and they remain stateless, at what point would the Home Secretary have to say, “We have a problem; this person does not have citizenship of any country”? There is a danger in leaving somebody abroad who we think is a danger to this country and involved in terrorism, who is stateless in another country or who remains in this country and cannot travel.
The noble Lord, Lord Lester, said that the intention was that those who are dangerous should leave—but they cannot do so if they have not got citizenship of any other country. The noble Lord also made the point that our position has changed. I can assure him that our position has not changed. These are the very same issues we raised in Committee and on Report, and we wanted to consider them in the light of the changes that the Government have made.
We have to consider the practical and diplomatic implications here. I know the Minister says that there is no need to discuss this issue with other countries, but he was not even able to confirm to your Lordships’ House that, if we remove citizenship from an individual who we suspect of being involved in terrorist activity while they are in another country, we would notify the Government of that country that we were doing so. That seems to be a rather irresponsible attitude and I worry that we will be passing the problems of terrorism on to other countries when international co-operation is so essential.
I do not wish to detain the House. We have had an interesting and worthy debate on this issue. What the Government have not been able to do, however, is rule out the possibility that we will make people who could be highly dangerous stateless. All it requires is that the Home Secretary must have reasonable grounds for believing that an individual can obtain other citizenship—but if those grounds are wrong and the individual cannot do so, we do not know what will happen to that individual.
The point was made when we debated this previously that we are not saying to the Government, “No, this must not happen”, but that there are still a number of questions which remain unanswered even at this late stage. They include the issue of what happens to someone when they have been rendered stateless and what the implications are for our relationships with other countries. The noble Lord, Lord Pannick, gave examples, and I am not sure that the Minister’s answer was that someone could not be made stateless.