Deprivation of Citizenship Orders (Effect during Appeal) Bill

Kit Malthouse Excerpts

Committee of the whole House
Monday 14th July 2025 Commons Chamber

[Kit Malthouse (North West Hampshire) (Con)]

I beg to move amendment 1, page 1, line 9, at end insert—

“(2BA) But a judge may determine that an order does not continue to have effect for a person “P” during the appeal period if, on granting leave to appeal at any stage, they are satisfied that—

(a) “P” faces a real and substantial threat of serious harm as a result of the order,

(b) continuation of the order would significantly prejudice their ability to mount an effective defence at a subsequent appeal, or

(c) the duration of the appeal process has been excessive because of an act or omission by a public authority.”

[The Chairman]

With this it will be convenient to consider:

Clauses 1 and 2 stand part.

New clause 1—Independent review—

“(1) The Secretary of State must, within one year of the passing of this Act, commission an independent review of the effects of the changes made to section 40A of the British Nationality Act 1981 by section 1.

(2) The review must be completed within two years of the passing of this Act.

(3) As soon as practicable after a person has carried out the review, the person must—

(a) produce a report of the outcome of the review, and

(b) send a copy of the report to the Secretary of State.

(4) The Secretary of State must lay before each House of Parliament a copy of the report sent under subsection (3)(b) within one month of receiving the report.”

[Kit Malthouse]

I am pleased to be opening this debate, although, given the turnout in the Chamber, it seems to be a minority interest among Members of Parliament, notwithstanding the fact that the legislation affects some of our most basic freedoms and rights. Before I address amendment 1, I hope you will forgive me, Madam Chair, if I briefly indulge in a preamble. There are a couple of issues that I want to impress on the Minister in the hope that he will respond favourably and, if not accept my amendment, agree to consider the principles it raises in the other place. Given the number of senior lawyers there, this legislation will be examined by some pretty stringent legal eyes.

First, Madam Chair, I hope you will agree that we established on Second Reading that this Bill is highly discriminatory. One of the truisms we always utter in this House is that we all stand equal before the law, but I am afraid that where this legislation is concerned, that is just not true. The Minister would be unable to wield against me the powers he is seeking to bring in under this Bill; it would not be countenanced because I have no right to citizenship elsewhere. However, there are Members of this House against whom the Minister could wield that power. Although he could not wield it against me, he could wield it against two of my children, although not against the other one—I have three. He could wield it against the children of the former Prime Minister, my right hon. Friend the Member for Richmond and Northallerton (Rishi Sunak); against the children of the former Chancellor of the Exchequer, my right hon. Friend the Member for Godalming and Ash (Sir Jeremy Hunt); and against the children of the former Deputy Prime Minister, my right hon. Friend the Member for Hertsmere (Sir Oliver Dowden). I am trying to illustrate to the Minister that this legislation is highly discriminatory, and unusually so. He is tampering with some of the basic tenets of British justice through this Bill—a principle has been established in the Supreme Court that he is attempting to reverse—and I want him to have in mind that he is trying to embed that discrimination in law. I hope and believe that that is not his primary motivation, but he must comprehend that before he takes this step.

Secondly, I say to the Minister, who has a distinguished record of service in the defence of this country and now serves as Security Minister, that much of the Bill is, let us face it, focused on those accused of committing terrorism here or overseas. Terrorists win in two ways: first, by the physical injury that they inflict and the fear of that physical injury that they are likely to inflict by exploding bombs, killing people and all the horrors we have seen in our lifetimes over the past 30 or 40 years, if not longer; and secondly, by a long, slow undermining of our way of life and by sowing division within our society. Their long game is to force us to twist ourselves in knots around the freedoms that make us different, which they despise, and slowly to erode our standard of living and the atmosphere in which we live, and we have seen that before in this country.

The Minister is old enough to remember the evolution of the Diplock courts in Northern Ireland, where hearings were held without juries. We dispensed with the basic freedom of the right to a jury trial in Northern Ireland for a while, largely because of accusations of violence towards juries. It was proven later that this was part of a known strategy by the IRA to make the Six Counties ungovernable, other than by military colonial means, so the IRA saw that move as a triumph. What terrorists want in the long term is a twisting of our natural freedoms. They want us to make compromises in our legislation that undermine our sense of belonging in our nation and create a division not just between the governed and the Government, but within society. This legislation, I am afraid, starts to do exactly that.

On Second Reading I pointed out, as I have possibly already done today—I hate to be repetitive—that this legislation and this power create two classes of citizenship in the UK. There are those who can have the order removed and those who never can have it removed. As use of the power has accelerated over the past two decades, and we are using it now more than we ever did, it creates a feeling of unease among those whose citizenship is conditional.

I will explain to the Minister why I tabled amendment 1. As I said on Second Reading, my view is that he is undermining some of the basic tenets of British justice with what he is attempting to do with this legislation. With this amendment, I am attempting to swing the pendulum back a little in the cause of fairness before the law. As he will know, individuals subject to this power have the right to appeal on a number of bases, and courts will decide whether to allow their appeal. Broadly, there are three areas on which they can appeal: the first is whether the decision was proportional; the second is whether it was procedurally fair; and the third is whether the Minister or the Home Secretary has made a mistake over whether the person has a right to citizenship elsewhere and so may in fact be rendered stateless. As he knows, that is not allowed under the legislation.

If I have had my citizenship deprived essentially at the stroke of a pen by the Home Secretary, and I win an appeal, it seems unfair, given that I have won that appeal on the basis of fact, that the Government can continue to deprive me of my citizenship pending a further appeal by them. Ordinarily, I would have got rid of this legislation, but the Minister seems insistent, and he won on principle at Second Reading, and that is fine. I am therefore appealing to his sense of good old British fair play to say, “This individual has won their first appeal on the basis of fact. Unless we have some profound reason to dispute that fact, we will not appeal, in which case they get their citizenship back.” On the basis of the fundamental British value of “innocent until proven guilty”, that person should get their citizenship back, particularly if a judge decides that the three conditions outlined in my amendment are satisfied.

--- Later in debate ---

[The Minister for Security (Dan Jarvis)]

Will the right hon. Gentleman give way?

[Kit Malthouse]

By all means. I know he is a busy man, and I do not mean to be critical.

[Dan Jarvis]

I have huge respect for the right hon. Gentleman, but I think he is being a little unfair. He would have been entirely welcome to discuss his amendment with me. Had he chosen to do so, I would have happily sat down with him to discuss the detail of it.

[Kit Malthouse]

The Minister is a fair man and a fair-minded man. He is quite right, and I am willing to countenance his appeal and give him the benefit of the doubt, and that is exactly what I am asking for the individuals subject to this legislation. He will know that we have certain inalienable constitutional rights as British citizens, which this legislation contravenes. The first is that we have a right to a fair hearing and that any action the Government take must be exercised fairly. That right has been established in the common law again and again, and most recently in 1994, in the case of ex parte Doody, when the court decided that Ministers must exercise their powers fairly.

The second inalienable right, which has been decided in the Supreme Court, is that we all have a right to access to the courts, and that cannot be unfairly restricted. As that has been decided by the Supreme Court, the Government cannot put up artificial barriers to our access, such as raising fees or making sure that we cannot physically get to the court. Indeed, as the Minister will know, I have an absolute right to defend myself in person at every stage of legal action, whether that is at first hearing or at subsequent appeal. All those powers or rights that I have as a citizen are affected by the legislation he is attempting to put through.

My amendment essentially says three things. If the Government failed to win an appeal, but wished to continue to deprive me of my citizenship pending a further appeal, they must, when seeking leave to appeal from the judge, also ask the judge for leave to continue the deprivation of citizenship. The judge basically could say no in three circumstances. First, the judge could say no if there is a real and substantial threat of serious harm to that individual if they were denied access to the United Kingdom. Some of these people will be living or operating from extremely dangerous places. If that person is likely to be killed pending further appeal on the denial of their citizenship, it would seem grossly unfair, their having already won an appeal, to deny them access to the country.

The second ground would be if their exclusion from the UK and the continuing of denial of citizenship would be deeply prejudicial to the conduct of their defence in an appeal that the Government subsequently decided to bring. In such a case, it would be impossible for me to defend myself at appeal in person, which should be my inalienable right as a British citizen. It would be impossible for me to do that remotely in some God-forsaken part of the world where I cannot Zoom in or I do not have the ability to communicate. It would be the same if I am unable to communicate with my legal team. I am sure the Minister can see that it would be unfair to interfere with someone’s ability to mount a proper defence—we should not forget that that person has already won an appeal—through the continuing denial of citizenship.

The third ground, which we covered on Second Reading, is the Government’s taking their time, achieving their objective merely by dragging their heels and playing for time, hoping that something, perhaps something untoward, will turn up. A judge should then make a judgment—the clue is in the name—on whether they are being efficient in their use of the legal system, rather than, as I am afraid happens from time to time, gaming it to their own advantage.

[Simon Hoare (North Dorset) (Con)]

As my right hon. Friend knows, I have a huge amount of respect and affection for him, and he is right to refer to the inalienable rights that a British citizen has in terms of access to justice and so forth, but surely he must accept that individuals facing deprivation of citizenship will have crossed a threshold of behaviour, or allegiance, so alien to our traditions, so alien to all the rights and responsibilities accrued over the decades of British citizenship, that in essence, in the court of public opinion, they will put themselves way beyond the pale when it comes to those issues. It would be an extreme hypocrisy for those who most seek to undermine our way of life to demand all the rights and privileges that they have sought to undermine, and possibly destroy, through their actions or foreign allegiances.

[Kit Malthouse]

I understand my hon. Friend’s point, but I would have more faith, or confidence, in his view if it applied to me as well, which it does not. What we are saying is that we can have two British citizens who commit the same heinous acts but receive two different kinds of treatment. One can have his or her citizenship removed and be expelled from the country, but another—say I were to do that—cannot. My view is that this is highly discriminatory, and tramples over some of the inalienable rights that my hon. Friend has mentioned. We currently have plenty of British citizens in high-security prisons who have committed acts as heinous as those committed by people whom we have deprived of British citizenship, but we have decided to deprive them of British citizenship purely because of their heritage and background—purely because they may be second-generation immigrants.

As I pointed out on Second Reading, this legislation applies to every single Jewish member of the United Kingdom citizenry. They all have an inalienable right to Israeli citizenship, and as a result, in my view, they all have second-class citizenship. I do not think that that is right. I do not think that it is fair. I think that it drives a wedge into our society, and sows a seed of doubt at the back of everyone’s mind.

This is the point that I was trying to make at the start. Those who perpetrate such heinous acts overseas absolutely should be punished. As my hon. Friend will know, over the past 10 years I have been at the forefront of trying to ensure that as many criminals as possible end up behind bars, whatever the criminality might be, but the fact is that there is a principle in British law—we are all supposed to be equal—and the Bill breaches that principle very significantly. Moreover, what the Government are attempting to do not only reinforces that breach, but aims to twist and skew fundamental tenets of British justice that have been our right for centuries.

[Simon Hoare]

Surely the fact that a remedy is not available to all does not mean that it is not a remedy. If we wish to argue for the two-tier approach, we can think of instances in which mental capacity has come into play, particularly in respect of capital offences, when those existed here. In abstract theory, that was a two-tier approach to justice, determined on the grounds of mental capacity or lack thereof. Surely remedies do not have be applicable universally to be applied fairly and within the law.

[Kit Malthouse]

I am not sure that I accept the hon. Gentleman’s logic. The test of mental capacity in the judicial system applies to everyone equally. If I were being prosecuted for an offence, I would be assessed for mental capacity, just as my hon. Friend would. The court would accept that there might be mitigations for his actions, or a requirement for a different disposal if he lacks mental capacity, but that is an external influence on him. It may come about owing to mental illness or some other kind of disability—who knows?

The point is that this comes about through no reason other than birth. My citizenship, or my lack of citizenship, is conferred on me by reason of my birth—my parentage, or my heritage. I cannot do anything about it. I cannot be treated for it, as I can be for mental illness. This is purely because my parents may have come from another country, my skin may be of a different colour, or the country of the origin of my DNA may offer particular rights of citizenship. It is something arbitrary, about which I can do nothing. We might as well have a piece of legislation that says that people with red hair receive different treatment under the law, because there is nothing they can do about that.

[Bell Ribeiro-Addy (Clapham and Brixton Hill) (Lab)]

Does the right hon. Gentleman agree that this whole notion of heritage is not even an exact science? My first black ancestor to be born in this country was born in 1806, in Twyford; I have no idea where that is, but I know it is not that far from here. He was the son of a formerly enslaved person and a white domestic servant living in the house of his former master. I do not know what that particular ancestry is, but it goes quite far back. Just because someone called Thomas Birch-Freeman, who was living in the UK and would be deemed British by this legislation, travelled to Ghana as a missionary and settled there, and that is where my lineage comes from, I am now treated differently under the law, despite, perhaps, having heritage that may be similar to that of the right hon. Gentleman.

[Kit Malthouse]

The hon. Lady has made a very good point. My problem with this legislation is that it places a question mark over certain citizens. I am not suggesting that the legislation is on everyone’s lips every day, but when it is used with increasing frequency, it does place a question mark over people’s status as citizens of the United Kingdom, and that, I think, should be a matter of concern.

[Dan Jarvis]

The right hon. Gentleman is making his points in a very considered way, but he is levelling quite serious charges against the Government. May I say to him, in absolute good faith, that our intentions here have nothing to do with someone’s place of birth and everything to do with their behaviour?

[Kit Malthouse]

I understand what the Minister is saying, and, as I said to him on Second Reading, I am not concerned about this power falling into his hands, but we do not know who will be in his position in the future, and we are never quite sure how the power might develop. As I have said, over the years we have seen an acceleration and an increase in what is a very draconian power that we should be taking extremely seriously. To deprive people of their citizenship is a profoundly serious thing to do, which may well—indeed, will—affect them for the rest of their lives. No doubt it will be done in the face of extremely serious offences on the Minister’s watch, but I am not sure that that will necessarily always be the case.

Given that under the power that is being created people can be expelled on the basis that their presence is not conducive to the public good, we could see its being used in combination with other powers that have been expanded recently. Just last week, in controversial terms, the Minister proscribed a particular organisation operating in this country. I am sure he will be able to explain, but in my experience—I think he referred to this at the time—proscription has been reserved for terrorist organisations. As the Minister has indicated, this power is reserved for those who are terrorists. Could it be used against individuals who are convicted of crimes under that proscription? That is the danger that I am trying to illustrate to him, and this is an area of law where I urge him to tread carefully and to think about the compromises that he is creating against our basic freedoms that we need to maintain, at the same time—I do not dispute his motivation—as protecting the United Kingdom in the best way he possibly can. I am just worried that he is taking a step too far.

--- Later in debate ---

[Lisa Smart]

The hon. Gentleman is right that one of the most serious jobs of any Government is to keep their citizens safe—I completely agree. There is, though, a need for robust scrutiny. The Government must have confidence that the legislation they are putting forward has the support of this House and of the country, including that that legislation does what they say they want it to do and does not accidentally do something else. I think the most confident legislators are those who are open, transparent and welcoming of scrutiny, so I am grateful for the hon. Gentleman’s comments.

The Liberal Democrats support amendment 1, tabled by the right hon. Member for North West Hampshire (Kit Malthouse), which would empower the courts to prevent the Secretary of State from issuing a deprivation order in cases where doing so would place an individual at risk of harm or undermine their ability to mount an effective defence, or in cases where a public authority has caused unreasonable delays in the appeals process. This is a measured and sensible proposal that places essential limits on the excessive powers currently wielded by the Secretary of State in matters of citizenship deprivation, and we will support the amendment if the right hon. Gentleman pushes it to a vote.

[Kit Malthouse]

To refer back to the intervention by the hon. Member for Strangford (Jim Shannon), would the hon. Lady be interested to comment on this point? My understanding is that, under the terms of the Good Friday agreement, every UK citizen resident in Northern Ireland has a right to claim Irish citizenship. This Bill in effect means that every UK citizen resident in Northern Ireland can be deprived of their citizenship—have it removed by the Home Secretary—if that is conducive to the public good. That is another example of a whole group of people who would have a second class of citizenship.

[Lisa Smart]

I have listened very carefully to the right hon. Gentleman’s comments this evening and on Second Reading, and I have a great deal of respect for him and the way he lays out his arguments. I am very much looking forward to the Minister’s comments from the Dispatch Box shortly.

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[Dan Jarvis]

My hon. Friend is right about that specific point, but I will return to the points she has raised once I have responded to amendment 1, tabled by the right hon. Member for North West Hampshire (Kit Malthouse). I am genuinely grateful to him—he is looking a bit cynical as to the extent of my gratitude—for providing an opportunity to address the important issues, and they are important, he raised and for the considered, measured and thoughtful way in which he approached this debate and the Second Reading debate a couple of weeks ago.

The right hon. Gentleman made the case for his amendment in his own typically considered way. I listened very carefully to it, as I am sure did other hon. Members. He made the claim that the Bill will create a two-tier citizenship, and my hon. Friend the Member for Clapham and Brixton Hill (Bell Ribeiro-Addy) reinforced that point. He claimed, I think somewhat unfairly, that the Government, through these measures, are seeking to undermine fairness. I say to him and to other hon. Members that we are not trying to do that. What we are trying to do, very simply, is ensure that the Government have the powers and the tools they need to keep the country safe. I know that he would acknowledge—I have made this point to him quite recently—that these are powers that existed under all 14 years of the previous Government. We are seeking to ensure that we have the same powers to be able to do what we need to do to keep the country safe.

I say to the right hon. Gentleman and my hon. Friend that deprivation on conducive grounds is used very sparingly and against those who would pose a serious threat to the UK. It is essential that our legal framework protects our national security—I hope he would agree with that—but he made an interesting point about some of the fine balances and judgments that have to be made. I hope he would accept that, ultimately, deprivation of citizenship and matters relating to national security are matters for the Home Secretary.

The Supreme Court has been clear that the right to a fair hearing does not trump all other considerations, such as the safety of the public. I understand and respect the motivation behind the right hon. Member’s amendment, but it does not take into account the impact of the Court’s decision on national security. These are judgments and decisions that have to be taken by the Home Secretary. The fact that a court may have allowed an appeal against a deprivation decision does not mean that the person does not pose a threat to the UK, for example where the appeal is upheld on procedural issues. Furthermore, it is not controversial to delay the outcome of a lower court on a civil order while any further appeal is determined. It has nothing to do with being found guilty. As I mentioned earlier, the approach in the Bill is in line with the approach taken on asylum and human rights appeals.

Turning to the specific conditions set out in amendment 1, I can assure the right hon. Gentleman that decisions to deprive are taken in accordance with our international obligations. It is also assessed whether deprivation would expose a person to a real risk of mistreatment, which would constitute a breach of articles 2 and 3 of the European convention on human rights, were those articles to apply. Additionally, an appeal can already be paused until a person is in a position to effectively take part. The timings for appeals are agreed by both parties and the courts can order case management reviews to resolve disagreements between the parties. For the reasons I have outlined, I respectfully ask the right hon. Gentleman that the amendment be withdrawn.

[Kit Malthouse]

I am very grateful to the Minister. I have just a couple of points to make, if I may. He is quite right that timetables are agreed and there can be case management reviews, but there is nothing the court can do to restore someone’s citizenship even if the Government do drag their heels. If he could explain to us, perhaps in a little more detail, what recourse I would have were I somebody who had won an appeal, was awaiting a further appeal by the Government against me and mounting a defence but the Government were dragging their heels and basically ignoring the case management reviews. I do not think it is the case that the judge would just dismiss the appeal out of hand. The Government could effectively take their time.

I have a second question, if I may. Can the Minister tell the House whether, in his view, given that it is a subjective judgment by the Home Secretary, membership of a proscribed organisation would be prima facie grounds for the deprivation of citizenship?

[Dan Jarvis]

The right hon. Gentleman undoubtedly makes some important points, but he makes them from a stance and a point of view that is slightly different from the position of those of us who have to serve in government. He spoke about the Government seeking to drag their heels. This Government and, I am entirely prepared to accept, the previous Government are not seeking to drag our heels; we are seeking to keep the country safe. That is what this is about. It is about ensuring that we have a legal framework that provides the tools we need to make difficult decisions, yes, but also to keep the country safe. He will forgive me if I do not seek to move into a slightly separate debate about proscription, not least because I think I would be in trouble with you, Ms Ghani, but I also want to come back to the point made by my hon. Friend the Member for Clapham and Brixton Hill.

My hon. Friend made the point that deprivation raises concern among certain communities. I am grateful to her for making that point and I am grateful for the opportunity to respond directly to it. Let me say to her and to other hon. Members that the power to deprive a person of British citizenship does not target ethnic minorities or people of particular faiths. It is used sparingly where a naturalised person has acquired citizenship fraudulently or where it is conducive to the public good. Deprivation on conducive grounds is used against those who pose a serious threat to the UK or whose conduct involves high harm. It is solely a person’s behaviour that determines if they should be deprived of British citizenship, not their ethnicity or faith. Finally, my hon. Friend asked about an equalities impact assessment. I can say to her that the impact on equalities has been assessed at all stages of the legislation.

Turning now to new clause 1, tabled by the hon. Member for Hazel Grove (Lisa Smart), I appreciate the intention behind the amendment, specifically to ensure accountability in the use of deprivation powers. I recall that she is very consistent in raising her concerns about that. However, I must respectfully submit that the hon. Member’s amendment is not necessary, for two reasons. First, the role of the independent chief inspector of borders and immigration already provides a well-established framework for independent oversight. She may recall that I mentioned that to her previously. The role was created under the UK Borders Act 2007, which sets out its statutory function. That includes the exercise of deprivation powers by the Home Secretary and by any person acting on their behalf. The independent chief inspector has the authority to conduct inspections, publish reports and make recommendations, ensuring that the powers are subject to rigorous external scrutiny.

Secondly, the Secretary of State already publishes annual statistics on the deprivation of citizenship. Those figures are publicly available and provide transparency on how often the powers are used and the grounds for deprivation. That data enables Parliament and the public to monitor trends and assess the proportionality and fairness of the system. Taken together, the statutory oversight by the independent chief inspector and the routine publication of deprivation statistics already provide a comprehensive framework for accountability. The amendment, therefore, duplicates existing oversight and reporting mechanisms. It would introduce unnecessary bureaucracy without adding meaningful value.

I would again like to thank all right hon. and hon. Members for their contributions. I hope for their continued support in ensuring that these important changes can be made.

[The Chairman of Ways and Means (Ms Nusrat Ghani)]

Mr Malthouse, do you wish to withdraw the amendment?

[Kit Malthouse]

In the hope that the Minister will do the right thing, yes. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 1 and 2 ordered to stand part of the Bill.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

Third Reading