Immigration Bill

Baroness Lister of Burtersett Excerpts

Monday 7th April 2014 Lords Chamber

[Lord Taylor of Holbeach]

I have just referred to the “independent reviewer of terrorism legislation”. We see the person undertaking this role to be independent. His role, I was going on to say, is to present a report of the reviews to the Home Secretary, who would lay them before Parliament. That could not be done unless the person was independent of the decisions being taken by the Home Secretary. I accept that point. We would then debate them in this House.

We propose a different reporting cycle to the one proposed in Amendment 57A. We recognise the importance of scrutinising the operation of the power at the earliest opportunity, hence the commitment to review after the first year. However, given the low number of orders—I have never made it other than plain that the number of cases is never going to be large in this area—that we expect to be made under the new power, we do not consider that subsequent annual reviews would be necessary or proportionate, particularly as every individual case can be subject to independent judicial scrutiny on appeal. So every individual case can be appealed before a judge. The Government will have an opportunity to address any concerns about the operation of the power arising from the initial report after 12 months, which is important, and the subsequent 36-month review period will then provide a much fuller evidence base from a large number of cases.

Amendment 56, tabled by the noble Lord, Lord Pannick, proposes that a parliamentary committee should be established in place of the introduction of the new power in Clause 64. I do not agree that a small committee of six persons from each House is the right place to consider this matter, not least because it would mean that we would have to unpick some decisions already made by this House after careful consideration of a report from the Liaison Committee about which Select Committees should be established in the new Session which makes it clear where the decision for this kind of nomination should lie. The appropriate place for scrutiny of these proposals is in the whole House considering a Bill, as we are doing now, and we should not shy away from making difficult decisions.

This is a matter of national security and we should be wary of unnecessary delay, which would leave a loophole to be exploited and create a barrier to effective action for what is likely to be at least a considerable number of months while the committee deliberated on this action.

That is my intervention at this stage. I hope it helps the House to consider the context of why the Government are not likely to accept the noble Lord’s amendment and prefer their own.

[Baroness Lister of Burtersett (Lab)]

My Lords, I wish to speak to Amendments 56ZA to—

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, my name is on the amendment so I wish to speak to it.

[Baroness Lister of Burtersett]

I also have an amendment in the group. I shall speak to Amendments 56ZA to 56ZD in this group. They have been tabled with colleagues from the Joint Committee on Human Rights, which recommended them. They also reflect concerns raised in a joint briefing from the Equality and Human Rights Commission, the Northern Ireland Human Rights Commission and the Scottish Human Rights Commission. But I should make it clear first that I would prefer Amendment 56 to be successful so that these amendments would become redundant. Indeed, these amendments reinforce the case for Amendment 56 because they underline how a number of key human rights issues remain unresolved. As the commissions observed, the consequences of having and using the power proposed in Clause 64 have not been carefully and thoroughly considered in respect of the UK’s compliance with its international and domestic human rights law obligations. I fear that this remains the case despite the welcome government Amendment 56A. It should not be the responsibility of an independent reviewer to put right defective legislation once it is in operation.

Amendment 56ZA seeks to ensure that any deprivation of citizenship is consistent with the UK’s obligations under international law. There has been some confusion in our debates so far as to what is meant by this. The JCHR accepts that Clause 64 is compatible with our obligations under UN conventions on statelessness, and not surprisingly the Government have prayed this in aid. But, in doing so, they have conveniently overlooked the JCHR’s concern that exercising the power in relation to a naturalised British citizen while they are abroad carries with it a very great risk of breaching the UK’s international obligations to the state which admitted that British citizen to its territory. These two points were at times conflated during our debates in Committee.

The Government’s legal position is that subject to one very limited exception, there is no general entitlement in international law for a state to deport a non-British citizen to the UK. On the other hand, Professor Goodwin-Gill, an acknowledged authority on the subject and already cited by the noble Lord, Lord Pannick, has said that the Government’s position on general international law is “manifestly incorrect”. This is not the place to go into disputes of legal interpretation, and as a non-lawyer I am certainly not the person to do so, but the point is that if fine legal minds are in dispute about whether it is compatible with international law to denationalise a citizen while they are abroad, surely it makes sense to allow a Joint Committee of both Houses to consider the matter before the proposal goes any further.

At this point I want also to put on the record the JCHR’s disappointment that the Government continue to refuse to inform Parliament about the number of cases in which the power to deprive a person of their citizenship has been exercised while that person is abroad. How can statistics affect national security? When the JCHR put this question to the independent reviewer in a recent public session, he responded by saying:

“My sympathies are very much with your request. If they will not tell them to you, I can only assume that they would tell them at least to a security cleared reviewer, who might in turn be able to make a recommendation that they may be released more widely”.

Will the Minister give a commitment now to make those statistics available to the independent reviewer, who he has said may indeed be given the power of review proposed in Amendment 56A?

Amendment 56ZB requires that the deprivation of citizenship is a necessary and proportionate response to an individual’s conduct. I would have thought that that was a rather basic safeguard for such a draconian power. The committee welcomed the Government’s indication that they would adopt a proportionality approach to deciding whether to exercise the power to deprive someone of their citizenship regardless of whether that would risk statelessness, but we believe that the importance of the concepts of necessity and proportionality as safeguards against arbitrariness are such that they should be in the Bill as conditions which have to be satisfied before the Secretary of State makes a deprivation order. We believe that this could make a real and practical difference in particular cases.

We also noted that it was hard to imagine the circumstances in which such a serious measure could ever be a necessary and proportionate response to a threat to the country’s economic well-being, as has been indicated by the Government. In Committee, the Minister promised to write to me with an example of when this might happen. I do not believe that I have received that example, so I should be grateful if he could provide it today on the record.

Amendment 56ZC would remove the retrospective power contained in the clause. The Government response to the Committee’s objection to this exceptional constitutional step was that a person does not have a legitimate claim of being unaware of the potential consequence of their actions because the person who would come within the scope of this new power would already be liable to being deprived of citizenship under existing powers. The only thing that prevents that now is that such a decision would leave them stateless. Is not that “only thing” rather an important thing? The Government response makes light of the fact that it is the law that currently prevents a person being deprived of citizenship if it made that person stateless. Surely a citizen should be entitled to rely on what the law said at the time of their action? Again, this is an issue that a Joint Committee could usefully address.

Finally, Amendment 56ZD requires that this decision,

“must take into account the best interests of any child affected”.

No doubt the Minister will point to the very welcome Amendment 58 that explicitly writes the Section 55 children’s duty into the Bill. However, Section 55 applies only to children who are in the UK. Thus the duty would not apply if the child affected—who may be a British citizen—happens to be abroad at the time, as is quite possible. A child is a child, wherever that child happens to be. I cannot believe that a Government who have repeatedly reiterated their belief in the best interest principle are really saying that that principle does not apply if the child happens to be out of the country.

I made it clear at the outset that the best way to resolve the issues raised by the JCHR is through the appointment of a Joint Committee as provided for by Amendment 56. Indeed the JCHR itself complained about the lack of public consultation and its detrimental impact on the parliamentary scrutiny of this clause. As the noble Lord, Lord Deben, said in Committee,

“statelessness is one of the most terrible things that can befall anyone”.—[Official Report, 19/3/14; col. 212.]

The Minister has himself spoken of the evil of statelessness. In the words of Dr Matthew Gibney of the Refugee Studies Centre at Oxford University, to be stateless,

“may be a recipe for exclusion, precariousness and general dispossession”.

This will be the first measure adopted by the UK in recent years that would give rise directly to an increase in the number of stateless people in the world condemned to be dispossessed,

“without the right to have rights”,

as Hannah Arendt so memorably put it. This House has a duty to prevent this clause going any further without the full and detailed scrutiny it warrants by a committee of both Houses.

[Lord Brown of Eaton-under-Heywood]

My Lords, that Clause 64 is highly contentious and far from obviously a good idea is perfectly plain. It is plain, indeed, from the Minister’s own recognition in Amendment 56A that a review of its operation will be required even if the provision is enacted. The critical difference between the Government’s amendment and our own is that we say that there should be no such drastic provision enacted as this without its first being subjected to full and proper consideration, and that of course would happen under our amendment. This really is a matter of fundamental principle.

It is true to say, as the Minister noted in Committee, that someone can already be made stateless if deprived of their citizenship having originally obtained naturalisation by fraud. That is perhaps understandable. The person would never have obtained British citizenship in the first place but for having committed fraud. To render stateless someone who has already properly gained citizenship by naturalisation is, I would suggest, quite another matter. Of course one must recognise that the power would arise only in respect of those who had betrayed the trust which we as a nation put in them when we granted them naturalisation and who now themselves create a risk to national security. For my part, I can readily see the temptation to say, “Well, they, too, therefore can properly be made stateless”. This is a temptation which I truly believe that, as a nation proud—and rightly proud—of our human rights record, we should resist.

--- Later in debate ---

[Lord Taylor of Holbeach]

I have written a report on every day of this Bill, and I will be writing about today’s debate to tell all noble Lords of those things that have arisen where I am not in a position to give an answer. The noble Baroness is very generous. Indeed I do my best but there is a limited amount of time and I do not want to take up too much time on an issue that noble Lords have debated with great skill for the elucidation of the House.

As I made clear in my earlier intervention, this is an important and sensitive issue that goes to the heart of ensuring that the Home Secretary has available to her the necessary powers to respond to changes and threats to our national security. Amendments 56ZA and 56ZB were discussed in Committee, and I can assure the House that this power was drafted taking full account of the need to ensure consistency with our international obligations. The Home Secretary will personally review every case and in doing so will of course consider, in line with our obligations under the ECHR, whether deprivation is a necessary and proportionate action in response to the conduct of the individual and the threat that they pose to the UK. I hope noble Lords will be reassured by our proposal for a statutory independent review that will be able to look at these matters as part of its scrutiny of the operation of this power.

The noble Baroness, Lady Lister, asked a number of questions. She asked whether the independent reviewer would have access to information on whether the deprivation action was taken while the person was in the UK or abroad. The independent reviewer will be provided with information on all aspects of the operation of the power, including the circumstances—

[Baroness Lister of Burtersett]

My Lords—

[Lord Taylor of Holbeach]

Perhaps I may just finish my answer. I think that it will be helpful to the noble Baroness if I do so. I will then give way.

The independent reviewer will be able to look at and will be provided with information on all aspects of the operation of the power, including the circumstances of individual deprivation decisions.

[Baroness Lister of Burtersett]

I am sorry to interrupt the Minister but I was not asking whether the independent reviewer would be allowed to do that once this law has come into force. I was asking the question that we have asked again and again about those who have already been deprived of citizenship. We have been told that we cannot have that information for security reasons, so the independent reviewer has suggested that perhaps he could have the information about those who have been deprived of citizenship under the existing legislation when they were abroad.

[Lord Taylor of Holbeach]

I see the point that the noble Baroness is making. I see no reason why not. If it has security connotations then perhaps it cannot be made public. However, our idea is that the independent reviewer should not be denied information that it considers important to perform its statutory duties as required by our amendment.

The noble Baroness asked about an example of where an individual would be deprived of citizenship on grounds of economic well-being. I replied to the noble Baroness, Lady Smith, on 26 March and a copy would have been sent to the noble Baroness, Lady Lister. In my letter I agreed that any situation which threatens vital economic assets is likely to be covered by terrorism considerations, but for that very reason we cannot rule out the possibility that it may be properly considered under this power.

The noble Baroness asked whether this goes against the UK’s international obligations to those countries that allow entry to British citizens who are subsequently deprived of that nationality. In the vast majority of cases, it does not. However, the Government note that the 1930 special protocol concerning statelessness created limited obligations in this respect. These obligations are limited to the 11 states that have ratified the protocol and apply only if certain conditions are met.

A number of noble Lords mentioned Professor Goodwin-Gill’s paper and his illustration that it was contrary to international law. Professor Goodwin-Gill has some expertise on this topic since he was part of the legal team representing Al-Jedda, but on this topic we believe that he is wrong. He based his analysis in large part on the opinion of Judge Read in the 1955 International Court of Justice case of Nottebohm, but Judge Read’s judgment was a dissenting judgment. We cannot accept the conclusions which Professor Goodwin-Gill derived from it. There is a very limited basis for an obligation to readmit people deprived of citizenship in very limited circumstances, as set out in Article 1 of the 1930 special protocol concerning statelessness. The limited number of state parties that have ratified this convention, together with the lack of state practice conforming to its provisions by states that are not party to the convention, shows that it does not constitute customary international law.