Nationality and Borders Bill

Lord Anderson of Ipswich Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I shall concentrate on the subject that I know best because I reviewed it for the Home Office in 2016: the deprivation of citizenship, covered in that late addition to the Bill, Clause 9. The phrase has a Cold War feel to it: we think of Aleksandr Solzhenitsyn, deprived of his citizenship by the USSR. But it is really a version of the ancient practice of banishment—likened by Voltaire, himself exiled to England as a young man, to

“throwing into a neighbour’s field the stones that incommode us in our own.”

The tightly drawn powers to remove citizenship under the British Nationality Acts, including for disloyalty or disaffection towards Her Majesty, were not used in the 30 years prior to the war on terror, but thresholds were reduced in 2003 and 2006 to the point where today, Ministers need be satisfied not that someone is a terrorist or a traitor but only that their removal would be

“conducive to the public good”.

In 2014, a further power was taken to render naturalised British citizens stateless, if the Home Secretary was additionally satisfied both that their conduct was seriously prejudicial to the vital interests of the United Kingdom and—a concession made in response to concerns expressed in your Lordships’ House—that they were eligible for citizenship elsewhere.

Removal of citizenship is now relatively common. The factsheet for the Bill on this matter tells us that the power to deprive people of their citizenship on “conducive to the public good” grounds was exercised around 170 times between 2010 and 2018. Clause 9 does not alter the criteria for removal of citizenship but effectively makes it optional, rather than mandatory, to notify the subject of their change in status. A more limited attempt to achieve this, which deemed notice to have been given by the entry of a note on the subject’s Home Office file, was made in a statutory instrument of 2018 that passed unremarked through Parliament but was held last July in the case of D4 to be ultra vires of the Act. At least this time around we have a power of amendment.

With Committee stage in mind, I ask the Minister six questions which I would be happy to have answered in writing. First, why is such a power needed at all? The existing rules allow subjects or their parents to be notified by post or email at their last known address, at home or abroad. Have there been cases—and if so, how many—in which even this basic information is not known?

Secondly, if it is necessary to remove citizenship without notice, why is the prior permission of a judge not required—the safeguard that applies to more transient measures such as TPIMs and, formerly, control orders?

Thirdly, why are the circumstances in which notice may be dispensed with so extraordinarily broad, even by comparison with the rules that were struck down in July? Clause 9 allows notice to be withheld even when up-to-date contact details are available, when it is practicable to give notice, and when no considerations arise of national security or foreign relations. The Secretary of State does not even have to try to give notice: she must only believe that dispensing with notice is “in the public interest”. Hints of future ministerial restraint of the sort that the Home Office has been energetically tweeting during this debate have no basis in this clause and are no substitute for properly defined laws.

Fourthly, where is the provision to require notification after the event? What reason could there possibly be for not informing somebody within days, weeks or months of such a potentially cataclysmic event as the removal of their citizenship—especially when it is their only citizenship?

Fifthly, when does the time to appeal begin to run? You cannot appeal a decision you have not been told of, but once you do find out, is your appeal said to be time-barred?

Sixthly, why are courts restrained, retrospectively, from treating a deprivation order as invalid for failure to comply with such notification requirements as still remain?

There is already apprehension, especially and understandably among people of mixed heritage, about this country’s unusually far-reaching powers to remove citizenship. The proposal to allow the use of those largely unmonitored powers to be kept secret, even from a subject who could perfectly easily be told, has predictably compounded those fears.

Clause 9 has been insufficiently thought through; at least, I hope that is the explanation. We can, and must, do much better.