Amendment 25

Part of Nationality and Borders Bill - Committee (1st Day) (Continued) – in the House of Lords at 3:30 pm on 27th January 2022.

Alert me about debates like this

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 3:30 pm, 27th January 2022

My Lords, I will speak also to Amendment 26 in this group and I look forward very much to hearing other noble Lords speak to their amendments in this group, which are very much on the same theme.

My amendment is perhaps a little more radical than some in this group, so, for the purposes of clarity, I am seeking to delete from the amendment to Clause 9 that was carried in Committee in the other place the proposed subsection (5A), which states that the notice to be given to a person to be deprived of citizenship, thereby notifying that their citizenship is to be withdrawn,

“does not apply if ... the Secretary of State does not have the information needed to be able to give notice under that subsection” or if it is not

“in the interests of the relationship between the United Kingdom and another country”.

I will set out my reasons for doing this.

I will allude to my earlier remarks: I obviously have an interest to declare, in that my mother was a naturalised British citizen by marriage to my father in 1948. Obviously it is a source of some concern to me that, were my mother still alive, she could be deprived of her nationality. I have to say that I am envious of the noble Lord, Lord Alton of Liverpool, and others, including on my own Benches, who, by dint of their parents, have dual nationality—British and Irish, in most cases. I applied for Danish nationality and got a six-page note from the consulate of Denmark saying why I did not qualify—so I feel very deprived of my right to Danish nationality, which I would be very proud to carry.

The Constitution Committee of the House set out, in paragraphs 18 and 19:

“Clause 9 was tabled by the Government at committee stage in the Commons. At present, under section 40(5) of the British Nationality Act 1981, a person who is to be deprived of citizenship must be given written notice of a deprivation order, the reasons for the order and a notification of the person’s right of appeal. Clause 9(2) specifies circumstances in which the Secretary of State will be able to deprive a person of British citizenship without giving notice … This is a potentially very broad power, enabling the Secretary of State to deprive a person of citizenship without giving notice on grounds including national security or the public interest. It is unclear how it will operate or who might be caught by it. Accordingly, the appeal process is potentially important. Clause 9 provides a right of appeal to the First-tier Tribunal. However, if a person has not been given notice of the deprivation of citizenship it is difficult to see how he or she would be able to appeal the decision.”

The committee concluded in paragraph 20:

“If a person is to be deprived of citizenship without notice there ought to be additional safeguards. For example the Secretary of State should have to apply to a court to dispense with service of a notice or obtain an order of substituted service so as to give the person affected the best opportunity of responding to the notice.”

As I mentioned earlier, I am grateful to the Law Society of Scotland, and Michael Clancy in particular, for the briefing and for preparing this amendment. The Explanatory Notes to the Bill state in paragraph 140:

“This clause amends section 40 of the British Nationality Act 1981 … to allow a decision to deprive a person of British citizenship to be made in the absence of contact with the person and to ensure that the associated deprivation order is valid.”

This objective is achieved by Clause 9 of the Bill, which inserts into Section 40 of the British Nationality Act 1981 new subsection (5A). We are all now familiar with this subsection, which I read out earlier, as well as subsection (5B).

My understanding is that the aim of the clause is to provide a means of depriving a person of their British citizenship where it is not possible to give, or there are reasons for not giving, prior notice of the deprivation decision, as specified in subsection (2) of the clause. This is necessary to ensure that deprivation powers can be used effectively in all appropriate circumstances, including, for example, where a person is no longer contactable by the Home Office. Again, this is set out in paragraph 141 of the Explanatory Notes.

I put it to the Committee that the fact that the Home Office has lost contact with a person is not a sufficient reason to remove the obligation to notify that a person is to be deprived of citizenship. Amendment 25 would ensure that notification was still required in such circumstances. However, where a decision was made to deprive a person of citizenship on the basis that they posed a threat to national security, it would remain permissible to remove citizenship without notice on the basis that the person could appeal against that decision.

On Amendment 26, I respectfully and humbly submit to the Committee that the Government should provide further justification for the provision set out in new Clause 40(5A)(c)(ii) of the British Nationality Act, which I read out earlier—namely,

“in the interests of the relationship between the United Kingdom and another country”.

Does that not seem a vague and imprecise reason for not notifying a person of the deprivation of their citizenship? In my view, it should be struck out of the Bill.

I received a briefing, for which I am grateful, from the European Network on Statelessness, setting out its views on what is wrong with Clause 9 as it exists. In its view:

“States must conduct a thorough assessment of the consequences of deprivation of nationality”.

It concludes:

“Clause 9, as proposed, will have severe impacts on the rule of law and on a person’s fundamental rights, and disregards many of the UK’s international obligations, including the prohibition of arbitrary deprivation of nationality, the obligation to avoid statelessness, and the right to a fair hearing. The UK Government has not provided any justification as to why such a restriction on fundamental rights is needed.”

I welcome the support from the European Network on Statelessness for the removal of Clause 9 from the Bill, which the noble Lord, Lord Anderson of Ipswich, will address in short order. I am minded to support him if my amendments do not carry favour.

I understand and support many aspects of the Bill that have regard to the rule of law and where the rights of the citizen are to be respected. What I find unacceptable about those parts of Clause 9 that I am seeking to remove is that, through no fault of their own, a citizen could be deprived of their citizenship without having been given prior notice and without their right to consult a legal representative to act on their behalf. With those few remarks, I beg to move.