Immigration Bill

Baroness Smith of Basildon Excerpts

Monday 7th April 2014 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I declare an interest as a trustee of the think tank British Future and as a member of the Joint Committee on Human Rights. In the time that has been allowed to the Joint Committee to scrutinise this legislation and whatever mechanism your Lordships’ House chooses, whether it is post-legislative scrutiny or the Joint Committee option, there are three brief matters on which I would still like to hear the comments of my noble friend the Minister. I thank him for outlining the important duties, privileges and obligations that naturalised British citizens have. As an 18 year-old on a gap year, I took what was perhaps an unwise journey to northern areas of Ghana, which were known at that time for their instability, but I had most wisely packed my British passport. When civil disturbance arose, I literally clung to my British passport, knowing that of course the embassy would help to rescue me if I needed it. At that young age, I realised what a privilege it indeed was to have British citizenship and a passport.

I will outline those three brief matters. First, much mention has been made of the potential to undermine the position of the United Kingdom in relation to human rights laws on the international stage. It is important to give two current examples. In November 2012, 31 Bahraini citizens were deprived of their citizenship for “undermining state security”. When given the opportunity to sit in front of some Bahraini politicians, I outlined the position in relation to those cases, which arose in the context of civil protest. I was met with the retort, “Well, you do this too”. “Yes”, I said, “but we don’t do it to leave someone stateless”. The second example would be that there has been much mention in your Lordships’ House of the plight of the Rohingya Muslims in Burma, who do not enjoy citizenship. I therefore struggle to see how representations could be so forcefully made about them being entitled to citizenship if the Burmese Government are able to use similar language to that being outlined in the legislation.

Secondly, although it may well be that this clause does not place us in breach of our treaty obligations in international law, as I understand it neither would reintroducing the death penalty, yet moving to re-enact that is not a trajectory that many of your Lordships would wish to see. One of the circumstances that were not commented on in Committee in your Lordships’ House is this situation. If it seems that we can deprive people of their nationality while they are, for instance, in Syria and do not then have to readmit them to the UK, what would happen in the unfortunate situation of having people within our borders who have managed to get some kind of visa to be in this country and are perhaps unsavoury if their country of origin deprives them of their citizenship, so that we are left with a little oasis of stateless citizens in the UK? I am slightly too young to remember properly the tit-for-tat diplomatic spats of the Cold War, but is it really too much to imagine that there could be a tit-for-tat deprivation of the citizenship of people in different jurisdictions around the world?

Thirdly, I would like to outline the impact on the next generation, which has perhaps not been fully explored in relation to this new power. There are, of course, implications for the nationality and citizenship of the children of those who have been deprived of their citizenship. I am grateful to my noble friend the Minister for clarifying that the power will not apply, as I understand it, to people who acquire their citizenship by way of registration, who are often the children of someone who is naturalised—such people who are under 18 acquire their citizenship by registration. I would be grateful if my noble friend the Minister could outline the views of the Government about the effect on the next generation of children, who potentially have parents who are stripped of their nationality. This would make contact with that parent perhaps not impossible but significantly more difficult. Perhaps we might be at risk of sending a message to those children and perhaps having the same unfortunate effect as did certain of the powers that we used in Northern Ireland when we had a similar security situation.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been a powerful debate. I am speaking to the amendment that I have been pleased to sign, along with the noble Lords, Lord Pannick and Lord Macdonald, and the noble and learned Lord, Lord Brown. There is a sharp contrast with the time which was allowed to debate this issue in the other place.

I am grateful to the Minister for his comments at the beginning of the debate. I do not want to repeat the points which have been made, particularly those made more eloquently than I could do by those with legal expertise. I want to emphasise a number of points, particularly around the issue of scrutiny, which was referred to by the noble Lord, Lord Lester. This new government clause was introduced—with other amendments—in the other place just 24 hours prior to Report, all to be considered in a five-hour debate. It therefore did not receive the scrutiny that such a substantial and far-reaching clause needs and deserves. In the other place the Home Secretary admitted that,

“Members have not had as long to consider it as they would perhaps have wished”.

The Home Secretary claimed to have been “incredibly generous” in repeatedly giving way to respond to MPs’ concerns and questions, although I do not think that that was a particularly wise turn of phrase. As was made clear by my colleague in the other place, David Hanson, we were seeking to ensure that the consequences of such a significant clause had been properly thought through. The response from the Home Secretary was that the Government,

“recognise that there are consequences, and they have been considered”.—[Official Report, Commons, 30 Jan 2014; col. 1047-48.]

However, when we debated this in Committee, the responses from the Minister did not provide your Lordships’ House with the assurance that all the consequences had been considered. The noble Lord, Lord Sherbourne of Didsbury, partly quoted my comments in Committee, and I will reiterate the same point that everyone in your Lordships’ House wants to do everything possible to protect UK citizens from potential terrorist activity, both at home and abroad.

We also have to recognise that we have international obligations in this regard, as terrorism is a global threat. We all know that Clause 64 is a response to the Al-Jedda judgment by the Supreme Court, as was referred to by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. It was clarified that the Secretary of State could not withdraw citizenship from an individual if it would leave them stateless. Clause 64 seeks to remove that barrier, and would allow the state to make an individual stateless if they are naturalised British citizens and the Government consider that they are involved with actions prejudicial to the interests of the UK. That would mean that either the former citizen remains locked in the UK, unable to leave, work or receive any support, but the Government still have obligations to that individual, or that they would be left stateless in another country and obviously not able to return.

When bringing forward such an exceptional power as this, the Government have a duty to consider the wider implications and the impact it will have. We understand that actions to tackle a threat to national or international security do at times curtail the freedom of an individual, but when such a measure is proposed it must be fully and properly considered. The process, the impact and the implications must all be fully thought through and understood.

The noble Lord, Lord Taylor, recognised the seriousness of this issue when we debated it in Committee. He said that it was right that we should have a thorough debate on the issue, after it was introduced at such a late stage and almost slipped in at the last minute in the Commons. However, the noble Lord has rejected the proposal in our amendment before the House today for scrutiny by a Joint Committee of both Houses, a dedicated committee to examine this in detail. He said that it should be debated during the passage of a Bill in your Lordships’ House.

For a debate to be effective, there must be answers to the questions raised. We are not a debating society. As the Minister has in effect acknowledged, our role in Parliament is to scrutinise and, if necessary, revise legislation. The noble Lord, Lord Lester, said in his comments that it was a complex issue. In Committee I and other noble Lords asked a number of questions in an attempt to understand how this clause would operate in practice and the impact on the individual, on public safety and on national and international security. To be effective in that scrutiny—the very scrutiny to which the noble Lord referred when introducing his amendment and rejecting our amendment—the Government must address the points we made, and answer the questions. On this very far-reaching clause, they have failed to do so.

In Committee we sought to understand the process and the full implications. What would the process be for making an order under the clause, and what would “seriously prejudicial” mean? What criteria would be considered by the Secretary of State, and what would be the process by which she would make her decision? I raised the specific case of Y1 with the Minister. In that case it appeared that the Home Secretary did not agree with the professional advice of the security services, following discussions with Cabinet members. I was not suggesting that that was necessarily wrong, but I wanted to understand if decisions could be made on political grounds. I did not receive much clarity on these points, but the Minister replied that this would affect only a small number of individuals. I have never considered that a few people being affected by a power makes it less important to consider the implications.

The Bureau of Investigative Journalism has identified 15 cases, to which the noble Baroness, Lady Hamwee, also referred, in which the person was overseas at the time. It has also shown that the use of that power gradually increased under this Government, from roughly one case each year in 2010 to eight in 2013. However, when asked for more precise information—for example, on how many of the individuals whose citizenship was removed were in the UK and how many were outside the UK at the time the decision was made—the Minister refused to give us more detail on the grounds of national security. I am not sure that I fully understand why giving the numbers involved, rather than specific information, is a danger to national security.

The Government have clarified that this new power could be used against people whether or not they are in the country, and whether or not they can acquire another nationality. They have stated that they would expect those who can acquire another nationality to seek to do so, but have no answers on what happens if that fails. There remains a lack of clarity on what happens to people who have their citizenship removed while they are in the country. This is an important point, as this clause is designed to deal with those whose activities are of concern, and indeed those who may be a danger.

Mr James Brokenshire, the new Immigration Minister, said that in the event of a person remaining in the UK they could be granted limited leave, “possibly” with conditions, and the UK would have certain legal international obligations under the UN convention. He expanded on that in a letter to the Constitution Committee, in which he wrote:

“For those living in the UK, we may grant another form of immigration leave, depending on the person’s circumstances … Crucially this will not attract all the privileges associated with being a British citizen; they would not be entitled to hold a British passport, to vote or to have full access to public services”.

The Minister confirmed this in writing to us after the debate. He also added that, in certain circumstances when the person cannot return to their country of origin, “it may be necessary” to provide them with exceptional leave to remain of some kind or another. Does this mean therefore that people would be trapped here, and we would not be able to deport them but would still have obligations towards them? How does that help to ensure that national security is protected?

What happens if someone is in another state when the decision is taken? What happens if they cannot be contacted? The Minister said that they would have the full right of appeal, but they cannot have this if they cannot be contacted. How can someone be notified in such circumstances, or avail themselves of any review of the decision? What about children who may be left behind? What will be the obligations of the state these children are in when their parent is made stateless? What will be the obligations of the state in which the person is made stateless?

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[Lord Taylor of Holbeach]

My Lords, I am sorry that the noble Baroness feels that my responses have been inadequate. It is a matter of pride that I have sought to answer noble Lords’ queries during the passage of this Bill. The noble Baroness has never implied that anything I have supplied her with has been inadequate, and I am sorry if she has taken that view.

[Baroness Smith of Basildon]

At all times the Minister has sought to be courteous and to give as much information as possible. However, he will recall that in Committee I asked questions and he apologised for not having available some of the information needed to answer them. It is no slight on him personally; he has made a great effort to try to answer. It is just that there have not been answers to some of the questions I have asked.

[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—

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[Lord Taylor of Holbeach]

My Lords, if the Opposition were prepared to accept Amendment 56A, I should be prepared to move it.

[Baroness Smith of Basildon]

My Lords, I am not sure whether the noble Lord has moved his amendment formally but, as the matter has been referred to a committee, should this not also be referred to a committee? It would seem more sensible to us that, if a committee were discussing something, it would then decide the nature of any review that would take place after implementation.

[Lord Taylor of Holbeach]

The point that I was trying to make was that, if this were to form part of the substantive Bill, it would be possible for it to be considered as part of the Government’s proposals in this respect. I do not want the House to have another vote on the issue, but I feel that this is not in conflict with the amendment successfully moved by the noble Lord, Lord Pannick. However, I am told from the Box that there is no need for Amendment 56A, so I will not move it.

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[Baroness Smith of Basildon]

My Lords, I have very little to say on this, as it is not something on which I have a great deal of knowledge. The issue would have benefited from debate in Committee. I understand why the noble Lord did not bring the amendment forward in Committee, although I think he probably wishes that he had done so. We would have welcomed a debate on it. I know of the noble Lord’s persistence on issues. He and I have discussed issues such as litter previously and I look forward to him coming back to that matter as well.

However, I would be interested to hear the Minister’s views on this. From what the noble Lord, Lord Marlesford, has said, he expected this issue to be in the Bill. I think he thought it was agreed that it would be included in the Bill but it is not. I hope that the Minister can enlighten us on that, on whether the issue is being considered by the Government and on their reasoning in relation to it. That would be extremely helpful for this debate.