Nationality and Borders Bill

Baroness Hamwee Excerpts

Committee stage & Lords Hansard - Part 1
Thursday 27th January 2022 Lords Chamber

Moved by

[Baroness Hamwee]

1: Clause 1, page 2, line 10, leave out “equally” and insert “in the same terms”
Member’s explanatory statement
The JCHR recommended that the Home Office consider how best to ensure that the intention to treat those previously discriminated against equally well as those not previously discriminated against, is made clear in the drafting of Clause 1. This amendment is to probe the drafting of Clause 1.

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[Baroness Hamwee (LD)]

My Lords, Amendment 1 is grouped with Amendments 2, 8, 9, 10, 12, 17 and 21. Amendment 9 is in the names of the noble Lord, Lord Dubs, and my noble friend Lady Ludford; the others are all in our names.

This Bill is not all bad, so I am glad to be able to start with Part 1, most of which we support, although the exceptions to that support are very significant. This rather gentle introduction is to probe into the clause that remedies historical inequalities. What is not to like? One thing that I do not like—which is not directly related to the Bill, but I am going to take this opportunity to say it—is that I am not comfortable with receiving so many briefings from organisations to which we cannot do justice. That is my discomfort. It is not that we do not want the briefings, but often they come too late for us to reflect concerns in amendments. I know that I am not alone in this House in finding it hard to keep on top of the material and feeling particularly bad about not being able to use all that is sent to us. I hope that organisations—which I know are very often overstretched and understaffed, and have their day job to get on with—will understand that we are not ignoring them, but please could they send us material earlier than sometimes they do? I am sure I am not the only one who has received briefings this morning.

I turn to the substance of the matter. Clause 1 provides for parents where there is discrimination in British nationality law that prevents mothers passing on British Overseas Territories citizenship to their children. It provides for the parents in such cases to be treated equally in terms of passing on that citizenship. The Joint Committee on Human Rights pointed out that this could mean equally well or equally badly; naively, I had not thought about it being equally badly. The way the clause is drafted is not the same as Section 4C of the British Nationality Act, which addresses the same discrimination in respect of British citizenship. That uses the phrase “in the same terms”, and that is what is proposed in several of these various amendments. I understand that concerns have also been raised that the reference to the parents having “been treated equally” is, on its face, unclear. The JCHR said it would be prudent to deal with the drafting so that it is “in the same terms”. I add that when you have different wording relating to very similar situations, that in itself suggests that the two should be dealt with differently.

Amendment 8 takes us to the issue of good character and would repeal Section 41A of the British Nationality Act. That section requires adults and young persons to be “of good character” if they are to be able to register as British citizens. If someone has the right to become a British citizen—or, more accurately in some cases, to have their right to citizenship registered, because the right is to citizenship and registration is simply the procedure—then what is done by the right hand should not, by giving discretion to the Secretary of State, let the left hand take it away. I hope the Secretary of State will allow me, for this purpose, to describe her as the left hand.

This point applies to Amendments 10 and 19 and to Amendment 9 from the noble Lord, Lord Dubs, and my noble friend Lady Ludford. Their explanatory statement is much more elegantly expressed than mine, but it is the same point. This point is particularly acute in the case of a child. Is the test really in the child’s best interests? I saw a bit of resonance with the police Bill, which I was going to say we have so recently finished but of course we have not, when we debated an amendment about candidates’ disqualification for standing for office as police and crime commissioners because of a misdemeanour—I think I can almost use that term in its technical sense—in their youth. This term is not the same as that; it is more amorphous. It is a discretionary matter and is of particular concern. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak briefly in support of Amendments 8 and 9 about good character. Like the noble Baroness, Lady Hamwee, I am particularly concerned about its application to children and those whose conduct when a child—and we are talking about children as young as 10—is used to deny the right to register as a citizen, which would otherwise be theirs.

The Joint Committee on Human Rights has voiced its concern, not just with regard to this Bill but in a 2019 report, where it pointed out that

“half of the children denied their … right … to British nationality on good character grounds have not even received a criminal conviction (having merely received a police caution)—let alone been prosecuted for ‘heinous crimes’.”

The Select Committee on Citizenship and Civic Engagement, of which I was a member, expressed considerable concern about the good character requirement. The committee called for a review of its use and description and of the age from which it applies—which is, as I said, 10. The Project for the Registration of Children as British Citizens, of which I am a patron, and Amnesty International, which have been campaigning on this point for some years, say:

“That some British people are required to satisfy the Home Secretary that they are ‘good’ for their citizenship rights to be recognised is divisive and alienating.”


I am not sure how many politicians would come out well as having “good character”, but I shall leave that as it may be. The good character condition is relatively recent in nationality law. It certainly should not be extended; ideally, it should now be scrapped.

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[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness for her request for clarification. Guidance is clear that a criminal record does not necessarily mean that an application for citizenship will be refused. As I said earlier, those with a non-custodial sentence or who have received an out-of-court disposal will normally be refused citizenship unless three years have passed. But—and this is the key point—caseworkers have discretion to make an exceptional grant of citizenship in certain circumstances, which, I should imagine, would very much cover the circumstances that the noble Baroness has just described.

[Baroness Hamwee (LD)]

My Lords, there is clearly concern about good character. I echo my noble friend’s query; the point about a holistic assessment has not been answered. I appreciate that those briefing the noble Lord might not have anticipated the question, but the way in which a caseworker sets about the task is fundamental to this issue.

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[Lord Sharpe of Epsom (Con)]

I did not mean to imply that the noble Baroness was saying that. I apologise for intervening on the noble Baroness, but I want to clarify the caseworker point. To answer the question, they do look at cases in the whole.

[Baroness Hamwee (LD)]

Thank you. That is good to know.

I come back to the registration point that we are dealing with. The Minister made some distinction between different routes. I take that point. I am not capable of making these distinctions myself, on my feet, without a lot of papers spread around me.

Section 41A is about registration. I say to the noble Lord, Lord Dubs, that it must have come in after the Bill had been introduced in order for it to be numbered in this way.

I turn to my first two amendments—to replace “equally” with “in the same terms”. I repeat my point that having one concept expressed in different ways in the same Act is bound to cause confusion, if not trouble. This may be very boring and it does not go to the root of a lot of what we are debating, but it is potentially of great importance in practice. I hope that the government lawyers can look at it again—or perhaps all my legal training is out of date. I beg leave to withdraw Amendment 1.

Amendment 1 withdrawn.

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[Lord Sharpe of Epsom (Con)]

Of course I accept the distinction. There is no arguing about that at all.

The noble Baroness, Lady Chakrabarti, raised the point that the provisions in this Bill are about righting historical wrongs, and I assure the Committee that it remains our intention to continue to adopt the approach of not charging fees in instances where unfairness or injustice has occurred. But as I tried to outline above, this is not a matter for the Bill. As my noble friend Lord Horam noted, it should be remedied through secondary legislation in line with other changes to immigration and nationality fees, as far as applications for British citizenship are concerned. Administration of British Overseas Territories citizenship applications is a matter for the overseas territories. We have consulted with them about the new nationality provisions; that applies to all the amendments except Amendment 13.

[Baroness Hamwee (LD)]

I apologise to the noble Lord. On the previous point about regulations for fees, the amendment of the noble Baroness, Lady Lister, in fact anticipates regulations. It limits the amount of fees that can be paid, but does not seek to use primary legislation to set the specific fee.