Immigration Bill

Lord Lester of Herne Hill Excerpts

Monday 7th April 2014 Lords Chamber

[Lord Lester of Herne Hill (LD)]

I am very sorry to be adding to the questions, but can the Minister explain how the trial is going to help the Government to decide whether the scheme should be statutory? What is the problem about deciding that question now and telling the House that it will be made statutory in the other Bill?

[Lord Taylor of Holbeach]

I think I gave an answer to that, did I not? It may not be necessary. It is not in Scotland, where it works well enough, so why should the Bill make it statutory in England if it does not need to be? These are the sorts of considerations that Parliament is there to decide. Now, if the noble Lord feels that we should decide it today and include a statutory provision within the Bill, so be it. I am just asking: why do that when you cannot be certain of the terms of the statutory obligations that you want to have in place? I am explaining to noble Lords that the whole purpose of the trial is to examine those. I was asked by the noble Earl, Lord Sandwich, about that. If the evaluation of the trial gives the evidence that we are looking for, we will indeed bring forward an amendment to the modern slavery Bill to deal with it.

The noble Lord, Lord Northbourne, quite rightly asked who is going to pay for this. For the purposes of the trial, the Home Office is funding the provision of advocates and, were this to be rolled out nationally, the Government would need to consider where the budget would be drawn from. That is why we need the opportunity to evaluate the role. If we want this to be worth while, where is the money, how are we going to pay for it and what elements do we have to consider as a priority? As part of this Government’s work to eradicate modern-day slavery, the Home Office has funded this trial of independent specialist advocates. The amendments before us do not make clear on whom the duty to appoint and therefore fund the child trafficking obligations will fall. Is it children’s social care or the Secretary of State? That is not clear within these amendments.

My noble friend Lady Hamwee asked about the statutory guidance. She is quite right that statutory guidance will be important. She asked whether the independent child trafficking advocate is the same as the independent advocate referred to in the draft DfE statutory guidance. No, the advocates that we are trialling will be specialist, dedicated advocates working only with victims of child trafficking. They will have a broader role to support them in relation to children’s social care, immigration and the criminal courts. They will be a constant point of contact, so it is a broader remit than would be provided for under this Immigration Bill.

It is critical to ensure that we have the best arrangements in place to protect and support these vulnerable children. Before we make any changes to our existing safeguarding arrangements, for there are safeguarding arrangements already in place, Parliament must be confident of the outcome of these changes. That is why I am at this point asking my noble friends to be patient and await the robust, independent evaluation of this important trial. It will be independent.

I say to my noble friend Lady Hamwee that I will write later this week to noble Lords to explain the updates which are consistent with this week’s announcement. I will include the noble and learned Baroness, Lady Butler-Sloss, in my correspondence—I promise her that. I will then keep noble Lords posted throughout the passage of the modern slavery Bill, and indeed the process of the trial, so that when that Bill comes before Parliament they are in a position to consider the amendments that this Government will make. I urge the noble and learned Baroness, Lady Butler-Sloss, to withdraw her amendment on the grounds that I have assured her in this way.

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[Lord Lester of Herne Hill (LD)]

Does that mean the Minister will accept that the word “independent” should be in his own amendment? It is in the amendment of my noble friend Lady Hamwee, but it is not in his.

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[Baroness Kennedy of The Shaws (Lab)]

My Lords, I have made a number of speeches on this subject at different stages of the Bill and I do not want to take too much of the House’s time. I welcome the idea of an independent reviewer being involved, but I say to the Minister that it is not enough. As he will see, my name is on a number of the amendments that were referred to by my noble friend Lady Lister. I, too, am a member of the Joint Committee on Human Rights. The amendment tabled by the noble Lord, Lord Pannick, is really the course that I would urge this House to take.

The whole idea of making people stateless is unsupportable as a measure, but that fact does not place barriers in the way of the Government in their efforts to deal with terrorism. Terrorism is a serious threat nationally and internationally, and the Government must act in the interests of our safety. Opponents of this move, of whom I am one, are not objecting to removing citizenship from people who have two passports. If someone already has dual nationality—and not just the possibility of being able to get it from somewhere else because they have a father or grandfather who is of a different nationality—then on the right evidence and with due process there is no reason why citizenship cannot be removed from someone whose conduct has been shown to be a threat to our national security. The Supreme Court recently did precisely that in relation to a Pakistani-British family living mainly in Pakistan.

However, I want to remind this House why the idea of rendering someone stateless is so repugnant. After the horrors of the Second World War, the international community had the opportunity of reflecting on the whole notion of the Wandering Jew—as though “wandering” was a voluntary condition—and the idea of what it meant to have no secure home and of living with the mental torture of insecurity. The international community was conscious of the many other people forced to live lives of uncertainty—because it is a weapon used by tyrants and dictators—knowing that they could be ousted at any moment because of the instability of their status. We were all alert to how such persons lacked full rights if they were rendered stateless, and that was why the convention to end statelessness came into being. Britain was one of the countries at the forefront of such moves, which is why we have been a beacon in relation to this issue.

It is interesting that Germany, reviewing its own conduct in relation to statelessness after the Second World War, has made it part of its constitutional obligations that it will never remove citizenship once it is granted. The United States, too—which, of course, became a haven for those seeking sanctuary—never removes citizenship once it is granted and believes strongly that people should not be rendered stateless.

Of course, if you are not a citizen of anywhere, you cannot have the rights that citizenships confers on you—the very right to have rights, as has been mentioned already. The presumption should always be that if you commit crime you should be tried and jailed, and that there are steps that can be taken to deal with criminality and behaviour that is a threat to states. But there is also a presumption that if something happens to you abroad you can insist on contact being made with your embassy or consulate so that your rights can be asserted. It is not just about providing protection, it is about seeking to make everyone subject to the rule of law—the thing that Britain is renowned for. The presumption should always be that law is involved in these processes.

I have repeatedly told the story of Mahdi Hashi, who had his citizenship removed while in Somalia. Two other persons from whom Britain had removed citizenship were droned—killed by the use of drones—in Somalia. We should reflect on that; it was evidence given to the Joint Committee on Human Rights by the UN rapporteur on counterterrorism only a week or so ago. Mahdi Hashi was advised through his parents of having lost his citizenship and that he had a month to appeal. Somalia has no British embassy. He travelled to Djibouti, where he was picked up by the secret police. On saying that he was British, he was told that inquiries had been made and that Britain was denying any obligations towards him. We washed our hands of him—Pontius Pilate lives on.

Mahdi Hashi was interrogated at length—no lawyers, no court processes. He was then handed over to the CIA and further interrogated—no lawyers, no court processes. He had a hood put on his head and was transported to the United States of America—no extradition processes. This was essentially another rendition. But Britain can now claim that we were not complicit because he was not our citizen. Is that the purpose of this change of law, that we might be able to do things that make people vulnerable and deny them their rights, creating yet more black holes where no law obtains but where we cannot be accused of complicity?

We in Britain have always claimed our commitment to the rule of law; indeed, we like to think of ourselves as having parented its existence. You might ask: is this man, who is now sitting in a jail in New York, a bad guy? I cannot tell you. No evidence is in the public domain. But it matters not whether he is a bad guy—that is the important thing to have in mind. We are supposed to believe in due process, the rule of law and international human rights. By making him stateless, we stripped him of the safeguards that any human being should expect. That is not how we normally behave. That is not an acceptable way for a civilised nation to behave.

This is an issue of profound principle and much more care needs to be taken than we currently see in considering the implications of this in terms of what message we are sending to the world, what the position is with regard to international law, what it means to make someone stateless, and what other states, where such persons end up, might feel about our having made such persons stateless. All those matters should persuade us that there should be a committee set up and that this needs much further reflection, because there are principles involved that should be seriously considered by us all because it matters about the nation that we live in.

[Lord Lester of Herne Hill]

My Lords, I was not able to speak in Committee but, briefly, I will make a point that I think has not yet been made.

My noble friend the Minister reminded us, rightly, of the fundamental importance of national security and of combating the evil of terrorism by all effective means. I do not think that I needed to be reminded of that but he was right to remind us all the same. Equally, the noble and learned Lord, Lord Brown, reminded us of another fundamental matter, which is the parliamentary scrutiny of draconian powers before they enter the statute book.

If I were persuaded, as the Minister has suggested, that this debate and previous debates are adequate as a substitute for effective pre-legislative scrutiny, I would not support the noble Lord, Lord Pannick, but I am not persuaded of that. The issues are extremely complicated and even though I think that I am some kind of international lawyer, I am certainly not going to analyse what Professor Guy Goodwin-Gill has said, even though I agree with him, or bore the House, as lawyers frequently could do, by going into a lot of technical detail.

What I want to do, and which gives rise to a question, is to deal with a point that the Joint Committee on Human Rights, of which I am a member, raised in our report and the way that the Government responded to it. In our report, we drew attention to the relevance of the European Convention on Human Rights and its various provisions, and we disagreed with the Government, whose position was that the European Convention on Human Rights had nothing to do with the issue. We went into the matter in paragraphs 45 and 46 of our report. In footnote 25 we referred to a case in which I was counsel for the applicants in the great case of the east African Asians against the United Kingdom.

That was a case which involved not national security but racism. It was a case where, to their shame, the then Labour Government persuaded both Houses of Parliament in emergency debates over three days and nights to take away from 200,000 British Asians, who were citizens of the United Kingdom and colonies, their right to enter and live in their only country of citizenship. By doing that, Parliament made 200,000 British citizens de facto stateless, even though a promise had been given to them by the previous Conservative Government that if they did not become local African citizens, they would be given the right to settle in this country. That promise was broken because of an extremely effective racist campaign mounted by Enoch Powell and Duncan Sandys, which led the Labour Government, with the support of both Houses, to pass that obnoxious legislation.

When we challenged that successfully before the European Commission of Human Rights, we relied upon two American cases. One was called Trop v Dulles. That was a case where under United States law somebody had been deprived of his American citizenship by Mr Dulles. The US Supreme Court said that under the American constitution, that was impermissible. The European Commission of Human Rights was impressed by that and it held that our Parliament had subjected British citizens to treatment that was racist and degrading.

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[Lord Taylor of Holbeach]

I will be happy to do that. However, I am conscious that noble Lords have been asking for answers today and to give what my noble friend has asked for would probably take the rest of the evening. I do not intend to do that, but I will do it in writing and lodge a copy in the Library.

[Lord Lester of Herne Hill]

I am sorry, but a few minutes ago the Minister said something about obligations under the European Convention on Human Rights. Am I right that the Government still take the view that the convention has no application extra-territorially if the Minister takes away someone’s citizenship when they are outside the country?

[Lord Taylor of Holbeach]

I was coming to this. I have been asked a lot of questions and I intend to answer them. The noble and learned Lord, Lord Brown, asked whether this would affect the UK’s contribution. It may be useful to point out that the UK is not alone in proposing this approach. Belgium and Ireland, among others, provide for the prospect of making a person stateless in circumstances analogous to what we are proposing. The noble Baroness, Lady O’Loan, and the noble Lord, Lord Lester, asked about the JCHR. Last year, in S1 and others v the Secretary of State, SIAC rejected the idea that Articles 2 or 3 would be engaged extraterritorially. Even if Article 8 were engaged extraterritorially, the interference would be lawful if it was necessary and proportionate. The high threshold set out in Clause 64 means that interference would be proportionate so I regard this as a rather academic point. I hope my noble friend, who does not lack academic credentials, is prepared to accept this. This was decided in 1973. This was like the case of the people in east Africa, to which my noble friend referred.

The noble Baroness, Lady Kennedy, made a passionate speech on the evils of statelessness after the Second World War. The UN Convention on the Reduction of Statelessness was agreed in 1961. The view of the United Nations was that, in extreme circumstances, people could be left stateless, as the JCHR accepted. This proposal is compatible with that UN convention. My noble friend Lady Hamwee asked what would happen to people in the UK who were made destitute. The UK would continue to have human rights obligations towards those in the UK and could not allow them to become destitute as a result of its actions. She asked whether these individuals were exempt from leave under the immigration laws and what would happen to family members. Family members would still be able to apply for leave within the rules, including the statelessness provisions, and would not be subject to restrictions unless their conduct justified it. My noble friend Lord Paddick, in a brave and thoughtful speech, said that legal aid is allowed for the appeal process. My noble friend Lady Berridge asked whether other countries will render people stateless in the UK on a tit-for-tat basis. Other countries can already do this and those affected would be subject to our immigration rules for stateless people. This clause will not provoke extra cases because, as we have stated, it will be used only for a few extreme cases. In any event, we believe that many will go on to acquire another nationality.