Nationality and Borders Bill

Debate between Baroness D'Souza and Lord Macdonald of River Glaven

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, powers to deprive British citizens of their citizenship have historically been very tightly drawn under UK immigration law for obvious reasons. However, I reminded the Committee that in 2003, 2006, 2014 and 2018, these powers were very considerably expanded, so that now they are exercisable against any British citizen who has dual nationality, where the Secretary of State is satisfied that deprivation is conducive to the public good. The breadth of this power is perhaps best understood by the Supreme Court’s conclusion in the Begum case, that this includes situations where the individual is unaware that they hold dual nationality and even where that individual has little or no connection with their country of second nationality.

I reminded the Committee of the words of the leading immigration law silk, Raza Husain QC, who said:

“This progressive extension over the last two decades has meant that it is no longer necessary to demonstrate that someone is a terrorist or a traitor before stripping them of British citizenship. Individuals may be deprived of citizenship on general public interest grounds of the sort usually invoked to justify deportation, rather than on the basis of their severing the bonds of allegiance that are the hallmark of nationality.”


The drastic nature of this power was well described by the United States chief justice Earl Warren, a Republican, put on the court by President Eisenhower, who said that the loss of nationality amounts to

“the total destruction of the individual’s status in organised society… the expatriate has lost the right to have rights.”

He was channelling Hannah Arendt there.

Deprivation of citizenship is such a drastic and far-reaching power that it must be accompanied by proper procedural safeguards. That much is obvious. This is a power that has been beloved of some of the worst regimes in history. If we are to permit this power to a Secretary of State, it must be accompanied by procedural safeguards. In its original form, Clause 9 went in precisely the opposite direction, removing the most basic safeguard of all—the safeguard of notification —really at the Secretary of State’s whim. That was not good enough and, like my noble friend Lord Anderson, I am grateful to the Government for having listened to the debate in Committee and for having changed course. Again, like him, I am satisfied that serious movement has been made and that some of our most serious concerns about the clause as originally drafted have been responded to appropriately. For that reason, I will be supporting this amendment and am extremely grateful to the noble Lord, Lord Anderson, for moving it.

[Baroness D'Souza (CB)]

My Lords, the amendments tabled by the noble Lord, Lord Anderson, add hugely important safeguards to Clause 9, but subsections (5) to (7), which are set out on page 12 at lines 13 to 19, would remain in place and appear to make lawful what is clearly unlawful. The secret power to deprive citizenship without notice and/or appeal threatens our cherished British values of fair play and the rule of law. It would also risk unduly affecting ethnic minority communities. Subsections (5) to (7) seek to instruct the courts to treat past unlawful deprivations as if they were lawful, even where the courts have found that these actions failed to comply with statute at the time when they were made.

Parliament, it seems to me, is being asked to condone a disregard for the law by those Ministers who took away British national citizenship when it was illegal to do so. If these provisions remain in the Bill, a series of unlawful deprivation orders made against young women from minority ethnic communities will not be subject to any scrutiny whatever. This cannot be right.

It seems clear from what has been said so far on this clause that the most profound concerns still relate to Clause 9 as a whole and—although the amendment tabled by the noble Lord, Lord Anderson, alters the whole tenor of the Bill and grateful thanks are due to the Minister for enabling this—the concerns remain. These clauses would create a secret power. Clause 9 goes well beyond cases where the Government cannot provide notice. According to the Policy Exchange think tank, at no point in the last century has it been thought that national security called for depriving British citizens of their citizenship without notice. We cannot see the case for this now, at a time when our closest allies, such as the US, are warning that depriving individuals of citizenship is not an effective way to fight terrorism.

The main issue in this group of amendments is whether Clause 9 should remain part of the Bill. My suggestion is that it should be removed to create certainty and clarity. It seems to me that the optimal solution would be to remove this clause altogether, not only because, as it stands, it is contrary to British law and indeed to parts of the UN refugee convention, but because this clause—as well as new subsections (5) to (7) proposed by the amendment in the name of the noble Lord, Lord Anderson—seem to enable further restrictive orders, something that we as a scrutinising Chamber should avoid at all costs. Therefore, while I will of course support the noble Lord’s amendment, I will also seek to move my amendment, which would leave Clause 9 out.