Nationality and Borders Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady D’Souza, and I agree with what she said and that, although the amendments moved by the noble Lord, Lord Anderson, have made Clause 9 less bad, it is still a bad clause that should disappear from the Bill. When introducing this group, the noble Lord, Lord Anderson, said that these amendments were all about Clause 9. I would rather say that my Amendment 22, to which I will speak, was provoked by Clause 9. One thing revealed in public debate—and there has been an enormous amount of public debate around Clause 9—is the fact that so many people had not realised that what the Minister described earlier as the “warm embrace of citizenship” can be taken away, and that there is profound discrimination in the way that this can happen.

The noble Baroness, Lady Chakrabarti, talked in Committee talked about two-tier citizenship; I talk about it as two classes of citizenship. I regret that I was not able to take part in Committee; I thank my noble friend Lady Jones of Moulsecoomb for very ably speaking for me. However, there are about 6 million Britons—I declare an interest as I am among them—who, because of another citizenship or their descent from people who came to Britain and chose to be Britons, have second-class citizenship. It can be taken away by the Government and, as the noble Lord, Lord Macdonald of River Glaven, just outlined very clearly, we have seen a very rapid and considerable escalation of the ways in which that power can be, and has been, applied.

My Amendment 22 makes one exception. If someone attains citizenship by means of fraud or misrepresentation, obviously, the power should remain for that citizenship to be taken away, but if that citizenship has been acquired honestly, my amendment says that it cannot be taken away. I suggest to your Lordships’ House that this is the only way that we can ensure that every British citizen is the same class of citizen and treated in the same way. Given that people who have, or have access to, alternative citizenships come from migrant backgrounds, the discrimination in how this is applied is very obvious. I note from having read the Hansard report of Committee very carefully that the noble Baroness, Lady Mobarik, expressed support for this. I thank the noble Lord, Lord Paddick, for also expressing support in principle for the idea that there should be only one class of citizenship and the Government should not be able to take it away.

I can imagine the response I might hear from the Minister: what about someone who is a security threat? If we have given millions of people British citizenship, we have benefited from the contributions, of all kinds, that they have made to the UK. Should we be able to say, “This person’s a problem so we’re going to get rid of them”, and make them someone else’s problem? If a person is a security threat to the UK, they might well be a security threat to the country that they hold citizenship for and that we send them to. Why should we be able to dump our problems on someone else?

I find myself torn. I aware of the desire in your Lordships’ House to take away some of the worst elements of the Bill, but I also find myself supported by many people in civil society who say that they want to ensure that there is one class of citizenship. I have said to all the relevant authorities that I will reserve the right to call a vote on this, because I find it a matter of principle on which it is very difficult simply to withdraw the amendment. I would really like to hear everyone’s position on this, particularly the Front-Bench speakers—I hope one of the Lords spiritual might contribute—and everyone’s explanation of whether they believe there should be two classes of British citizenship. Having heard that debate, I will make a decision about whether to push Amendment 22 to a vote.

[Lord Carlile of Berriew (CB)]

My Lords—oh, sorry.

[The Lord Bishop of Chelmsford]

Thank you. My Lords, I am grateful for the suggestion that the House might like to hear from the Lords spiritual. I support the amendment in the name of the noble Baroness, Lady D’Souza, which proposes that Clause 9 should not stand part of the Bill. We debated this at some length in Committee. It is somewhat disappointing that the Government have not taken the opportunity to reconsider more fully. I will not delay the House by repeating the arguments, but I will briefly speak about trust.

The Government seem genuinely confused by the level of opposition that the clause has triggered, but this should not have been surprising because I am afraid that it is symptomatic of a serious breakdown in trust between the Home Office and society groups, particularly minority ethnic groups, as we have heard. The response to the Windrush Lessons Learned Review promised a new culture in the Home Office—one that was more compassionate, that saw faces behind the cases and would rebuild and enhance

“public trust and confidence in the Home Office”.

The Bill as a whole does not do much to create the impression that this new culture has been embedded. Trust is hard to build and very easy to lose. On the issue of deprivation of citizenship and the treatment of minorities, trust is sufficiently low that any new changes to these powers must surely come with a compelling and overwhelming demonstration of a serious and widespread problem that needs to be solved.

I remain unconvinced that the Government have demonstrated that there is a sufficiently major problem that existing powers do not address. I am quite convinced that the impact this clause will have—indeed, already has had in continuing to undermine trust between the Home Office and civil society—is serious enough that the Bill would be greatly improved by Clause 9 being removed in its entirety. Having said that, I have heard the words of the noble Lord, Lord Anderson. He provided a compelling and informed case for his saving amendments. I will listen with interest to the Minister’s response.

[Lord Carlile of Berriew (CB)]

My Lords, I apologise to the right reverend Prelate the Bishop of Chelmsford for my lack of control over my new varifocals, and to your Lordships for entering the debate at this late stage. I have been listening to the debate in the context of my concerns about the majority judgments in the D4 case, which has already been mentioned. I read my noble friend Lord Anderson’s amendments and listened with enormous care to his very clear—indeed, brilliant—opening. I support his amendments. My view is that they go further than is absolutely necessary in terms of proportionality between the duties and rights of citizens and the setting of safeguards to ensure that this equation is well balanced. Overbalancing in favour of protections is a good fault in the circumstances, hence my declared support for my noble friend’s amendments.

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[Baroness Bennett of Manor Castle (GP)]

The noble Lord has displayed a very touching faith in the Home Office, which I do not think reflected the view of your Lordships’ House in an earlier debate in terms of how we are approaching Ukrainian refugees. Is he aware of the case of the gentleman known as E3, who was deprived of his British citizenship for many years, was eventually able to appeal that, has never been arrested or charged, and has finally—on 11 February—returned to the UK and is now back with his family after many years of separation.

[Lord Carlile of Berriew (CB)]

I am not aware of the details of that case, but I would say to the noble Baroness that the architecture that the amendments of the noble Lord, Lord Anderson, set out would protect such a person in a much better way than was the case before.

Nationality and Borders Bill

Lord Carlile of Berriew Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, my name, on behalf on these Benches, has been added to Amendment 64A. The House will be glad to have heard some very compassionate and rigorous speeches.

The noble Baroness, Lady Fox, talked about trust. Of course, that is hugely important. It may be the circles that I move in, but what young asylum seekers say—what many asylum seekers say—is not taken at face value; quite the contrary.

The noble and learned Baroness, Lady Butler-Sloss, talked of the young Afghanis whom she met. Amendment 64 refers to “demeanour”—I know that is not the term of the noble Lord, Lord Green, but it made me reflect on the fact that, as regards demeanour and appearance, we must be very careful how we regard people of a different culture from our own.

On Amendment 64A, so much of age assessment, as the Government present it, is about science. In Committee, the noble and learned Lord, Lord Stewart, acknowledged that there is no silver bullet, but the Bill itself and the Government’s argument rely very heavily on scientific assessment, although the scientific methods specified in the Bill are only physical examination and measurement and analysis of saliva, cell, DNA and other samples. So, it is particularly worrying that the relevant professional bodies are so loudly and clearly opposed to these provisions on the basis of ethics and because of concerns about the accuracy of tests and measurements.

A lot of factors are—or should be—in play in assessing age, using a range of professional skills. The Home Office fact sheet also acknowledges that there is no single method, scientific or not, that can determine age with precision, but then makes a particular point of referring to the Home Office chief scientific adviser. I ask the Minister: what disciplines will be covered, and will it involve professionals in the psychiatry and psychology parts of the scientific/medical world with qualifications, expertise and experience in assessing and treating young people who have gone through the experiences that young asylum seekers have frequently gone through? They must also have experience in dealing with asylum seekers and others who have undergone traumatic experience, dealing with them in a trauma-informed way and avoiding retraumatising them. I refer noble Lords to my Amendment 84C, which will be the very last to be discussed in this debate, probably some time tomorrow morning.

Clause 51(7) provides that the decision-maker must

“take into account, as damaging the age-disputed person’s credibility … the decision not to consent to the use of the specified scientific method.”

Clause 52(1)(f) provides for regulations about

“the consequences of a lack of co-operation with the assessment by the age-disputed person, which may include damage to the person’s credibility.”

I leave it to noble Lords to assess for themselves where that is leading or where the Government would direct us. How all that works, with the standard proof being the balance of probabilities, I am really not expert enough to be sure, but, taken together, it all worries me. I commend the rounded approach of Amendment 64A.

[Lord Carlile of Berriew (CB)]

My Lords, given that misrepresentation of age is a matter of concern, it is very important that the determination of age should be conducted in a way that is robust, certain in application, equitable and reliable. In my view, Amendment 64A, in the name of my noble friend Lady Neuberger, absolutely fulfils those criteria; indeed, it is a template for such criteria. I strongly support the amendment and adopt everything she said.

Age assessment techniques must be proportionate and fair. If any intrusive measures are to be taken—including dental X-rays, for example—that must be based on proven evidence of scientific reliability, not vague opinions that it might add something. It must be done in a service setting that is suitable for dealing with children, who are the vast majority of the customers under consideration in the cohort we are discussing. I commend proposed new subsection (5) to your Lordships, because it sets out the principles behind my noble friend’s amendment concisely and correctly, in a way that I am sure is the envy of some parliamentary draftsmen who have tried to draft something along similar lines before.

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[Lord Sharpe of Epsom (Con)]

My Lords, given the hour and the address by the President of Ukraine, I beg to move that the debate on Amendment 65 be now adjourned, and that further consideration on Report be adjourned until 5.15 pm.

[Lord Carlile of Berriew (CB)]

My Lords, there may well be a Division on the second of the amendments in the group. In which case, can we take it that the House will not resume until we have had the opportunity to come back to your Lordships’ House, even if it is a bit after 5.15 pm?

[Lord Stewart of Dirleton (Con)]

My Lords, there was no attempt on my part to forestall any Division, and I apologise if ignorance of procedure perhaps led to the suggestion otherwise. [Interruption.] I am grateful to my noble friend for indicating that that was not his position.