Immigration Bill

Lord Pannick Excerpts

Monday 17th March 2014 Lords Chamber

I do not know who is advising the Government, but all I would say is that when one rehearses this set of arguments among international lawyers, at home or abroad, people are appalled. We have a system of law of which I am normally proud, but I have to say that this will be a source of shame to all of us if we proceed as the Government intend.

[Lord Pannick (CB)]

My Lords, I have added my name to several of the amendments in this group and have also indicated my opposition to Clause 60 standing part of the Bill. I share the concerns eloquently expressed by the noble Baronesses, Lady Smith of Basildon and Lady Kennedy of The Shaws. It is a matter for considerable regret that the United Kingdom, which has played so significant a role in the battle to reduce statelessness, should now, if the Government have their way, condone the creation of statelessness, even for people who have damaged the public good. Such people should be put on trial, punished if there is evidence of criminal offences and deported if there is a safe country to which they can be sent. However, to deprive them of nationality and thereby render them international outcasts is simply indefensible.

I share the views of the noble Baroness, Lady Kennedy, about the international law implications of what is proposed, but wish to focus on the practical consequences of what the Government are suggesting. Does the Minister accept—this is the crucial question— that if British citizenship is removed from a person in this country on public-good grounds, with the result that they are rendered stateless, it will make it much more difficult to remove that person to another state? Other states are less likely to accept entry by a person who is stateless than one who enjoys British citizenship. Does the Minister therefore accept that, far from contributing to national security, the exercise of Clause 60 against persons in this country will positively damage national security by making it more difficult to remove people who are a danger to the public good?

For this reason, it seems highly likely that Clause 60 will in practice only ever be used against people who are living abroad. Does the Minister agree that, if we strip a person of British citizenship while they are abroad, thereby rendering them stateless, there is a real danger that the country that admitted them temporarily will take urgent steps to remove them back to this country, since it will not wish to be responsible for a stateless person? It is surely highly likely that the United Kingdom will be told by the country where such a person is living that it admitted that person temporarily only because the individual had a British passport. The foreign country will surely say that, now that the passport has been taken away, the United Kingdom can have that person back. There will then be a dispute with the foreign state—and some such states are our allies—about our duty to re-admit someone who was admitted to it only because they presented a British passport that has now been revoked.

The noble Baroness, Lady Smith, has already referred to the opinion of Professor Goodwin-Gill that the United Kingdom would have an obligation in international law then to re-admit such a person. Even if there is a dispute about international law, this Government are plainly going to face considerable pressure from foreign states to re-admit such people to this country. I would be grateful for the Minister’s views on this: does he agree that Clause 60, far from assisting us to deal effectively with people who threaten the public good, will handicap this country, whether the person is here or abroad when the revocation of citizenship takes place?

Although I have added my name to a number of the amendments in this group, which I see as probing amendments, the problem with all of them, whether to secure judicial control or introduce a test of proportionality, is that they will still allow for the removal of citizenship, even though statelessness will result. My current view is that Clause 60 is so fundamentally flawed, so in breach of international law and so damaging in its practical consequences for the security of this country that it should be removed from the Bill. I am happy—and I am sure that noble Lords who have spoken and will speak in this debate are too—to meet the Minister in the short period of time before we return to this subject, as inevitably we will on Report this month, to see whether there is a possibility of making real progress on this very troubling matter.

[Baroness Lister of Burtersett]

My Lords, Amendment 76A in my name is, like Amendments 75 to 78 to which I have added my name, designed to mitigate the worst effects of Clause 60. However, like the noble Lord, Lord Pannick, and my noble friend Lady Kennedy, my preference is for Clause 60 not to stand part of the Bill, and we have heard very powerful reasons for why it should not do so.

Amendments 75, 76, 77 and 78 were recommended by the Joint Committee on Human Rights; first, to ensure that Clause 60 is compatible with international law obligations. This has been questioned by the JCHR, drawing on the opinion of Professor Goodwin-Gill, which has already been referred to, that the deprivation of citizenship should be,

“a necessary and proportionate response to the conduct in question”.

The JCHR noted that, in their letter to the committee, the Government said that they did not want,

“to rule out the possibility that deprivation of citizenship leaving a person stateless is necessary in the interests of the economic well-being of the country”.

The JCHR said:

“It is hard to imagine the circumstances in which such a serious measure could ever be necessary and proportionate for such a purpose”.

Will the Minister help us out and give an example of the kind of situation envisaged that would not anyway be covered by terrorism? Economic well-being does not seem to be a reason for taking away someone’s citizenship and making them stateless.

The JCHR said that the best interests of the child should be taken into account and, once again, issued a plea for this to be written into the legislation to ensure that they are,

“treated as a primary consideration”.

The committee also said that the legislation should not be retrospective, which is,

“an exceptional step which requires weighty justification”.

We were not persuaded that such justification exists. I note from a Written Answer on 10 February:

“There will be no time limit, but the conduct being considered must have taken place after the individual became a British citizen”.—[Official Report, 10/2/14; col. WA 101.]

Amendment 76A complements the JCHR’s amendments and has two purposes. First, it would ensure that the power in Clause 60 could not be used against someone when they are outside the country. This would help ensure compliance with obligations under international law and, as has already been noted, the JCHR, drawing on the opinion of Professor Goodwin-Gill, has questioned whether the clause is compliant. The committee said:

“We would be very concerned if the Government’s main or sole purpose in taking this power is to exercise it in relation to naturalised British citizens while they are abroad, as it appears that this carries a very great risk of breaching the UK’s international obligations to the State who admitted the British citizen to its territory”.

That point has already been made but it bears repetition. Will the Minister comment on this important legal point?

The JCHR also expressed surprise at,

“the Government’s refusal to inform Parliament of the number of cases in which the power to deprive of citizenship has been exercised while abroad”,

and made it clear that Parliament,

“is entitled to this information in order to assist it to reach a view as to how the new power is likely to be exercised in practice”.

I pay tribute to the tireless briefing that ILPA has provided to the committee throughout the passage of the Bill, although I fear we have not done it full justice. A freedom of information request submitted by ILPA elicited the information that, of five individuals stripped of British nationality in 2010, all were outside the UK. This has to raise alarm bells. Will the Minister give Parliament—and the committee—this information now?

At Second Reading, the Minister assured noble Lords:

“There is a safeguard of a full right of appeal”.—[Official Report, 10/2/14; col. 417.]

But how is someone who is forbidden to return to the country supposed to exercise that right of appeal? It will not be very easy. In practice that is probably a pretty empty assurance. What will be achieved apart from sullying the UK’s international reputation, as we have already been warned? Liberty suggests that the clause is based on a security fallacy, arguing that stripping someone of nationality abroad will in no way contribute to security at home. Those who threaten our security do not respect national borders; my noble friend Lady Smith has made a similar point.

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[Lord Taylor of Holbeach]

I must say that nothing I have said implies that there may not be conditions. They are frequently imposed on people who may pose a threat to this country, and this case is no different. However, I have said that the right to protection against removal would be part of our obligation under the existing conventions, and we would not seek to do otherwise than honour those conventions.

On the challenge made by the noble Baroness, Lady Smith, about the question of deprivation action taking place only in the UK, that is the salience of Amendment 76A. The purpose of the new power is not to target naturalised people who are abroad, but to allow the Secretary of State to take timely action against individuals, whatever their location at the time the decision is made.

However, it is a fact that in some cases key information comes to light when a person is outside the UK. Indeed, often travel abroad to terrorist training camps or to countries with internal fighting is the tipping point—the crucial piece of the jigsaw—that instigates the need to act, given the potential danger that those individuals would present on their return to the UK. The Home Secretary therefore needs to be able to determine the most appropriate response and timings to deprive a person of citizenship, regardless of whether they are inside or outside the UK.

[Lord Pannick]

Can the Minister give the House an assurance that the Home Secretary will not deliberately wait until an individual is abroad before exercising Clause 60 powers?

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[Lord Pannick]

Before the Minister sits down, perhaps I could ask a question. He gave a very comprehensive reply—a very helpful one, if I may say so—but, unless I missed it, I do not think that he responded to the concern that, far from promoting the security of this country, Clause 60 will damage security. This is because the clause will make it more difficult to remove dangerous people, and make it more likely that dangerous people who are temporarily abroad will be sent back to this country because they no longer have a British passport. I wonder whether the Minister wants to say anything about those concerns.

[Lord Taylor of Holbeach]

That was of course a consideration in the discussions that led to the tabling of this clause. I think that I did address this point, in the sense that an individual who poses a threat to this country can have restrictions placed on them other than the deprivation of citizenship. I am sure the noble Lord will understand this point. I wish to make the point that this is a balanced judgment. The Home Secretary, who after all has to exercise powers within the law on this matter, believes that the law is deficient in this respect. She seeks to change it, and is doing so through this Bill. Knowing her, I do not think that she would make that decision if she felt that it would in any way weaken the security of this country.

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[Lord Pannick]

My Lords, I have added my name to Amendment 79A on the role of the independent reviewer and I agree with everything that has been said by the noble Baroness, Lady Hamwee. I have tabled two further amendments in this group. Amendment 79C has the support of the noble Baronesses, Lady Lister of Burtersett and Lady Smith of Basildon, and the noble Lord, Lord Roberts of Llandudno. It would require the Secretary of State to set up a code giving guidance as to the practices to be followed in any case of deprivation of citizenship. Amendment 79D, which has the support of the noble Baroness, Lady Lister, and the noble Lord, Lord Roberts, would introduce a sunset clause, and I am hopeful that the noble Baroness, Lady Smith, may add her vocal support to the amendment.

There are real concerns about Clause 60, as we debated in the previous group of amendments. If we are to have Clause 60 at all, I think that we need all or some of these protective provisions—an annual review, a code of guidance and a sunset clause—to set out some criteria for the application of the clause and to ensure that Parliament can take an informed and periodic look at this matter in the light of the practical experience of the operation of the clause.

[Baroness Lister of Burtersett]

My Lords, I am pleased to support these amendments. I think that I have already said more than enough about Clause 60, but I could not help but notice that no one spoke in support of it other than the Minister, and so I see these amendments as a kind of absolute bottom line. If we are going to be saddled with Clause 60, I hope that the Government will see fit to accept these procedural process amendments as a kind of minimal response to the grave concerns that have been expressed across the Committee.