Amendment 25

Part of Nationality and Borders Bill - Committee (1st Day) (Continued) – in the House of Lords at 3:45 pm on 27th January 2022.

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Photo of Lord Moylan Lord Moylan Conservative 3:45 pm, 27th January 2022

My Lords, I shall speak to Amendment 27 in my name. I declare at the outset that I was born both a British citizen and a citizen of the Irish Republic.

I am sympathetic to the remarks made by my noble friend Lady McIntosh of Pickering. She described them as radical but in my view they could be more radical, because they address what is essentially a symptom rather than the underlying disease. To understand that disease, it perhaps helps to go back a little in history. As the First World War went on, there were fantasies in this country about German spies who were everywhere. The belief grew up that the Kaiser had for many years been planting German agents here who had a remarkable ability to look like us, talk like us and infiltrate the highest levels of society. The late Lord Tweedsmuir’s novel The Thirty-Nine Steps may read to us today as a Boy’s Own story but it tapped into and encouraged a widespread national anxiety.

In 1917 the MP Noel Pemberton Billing claimed to be in possession of the Kaiser’s “black book” containing the names of 47,000 prominent figures in government and society at large who were German agents or had been blackmailed into becoming so. It was the subject of a sensational libel trial and made headlines throughout the land. This was the background to the British Nationality and Status of Aliens Act 1918, which introduced for the first time the power to deprive naturalised British citizens, and only naturalised British citizens, of their nationality.

At Second Reading, noble Lords, including my noble friend Lord Wolfson of Tredegar and the noble Lord, Lord Rosser, stated that the power of deprivation was introduced in 1914, but the 1914 Act merely allowed deprivation in the case of naturalised citizens who had obtained that status by fraud, making statutory a power that was always implicit. It was the 1918 Act that made the radical change. Until that point, the bond of British nationality had been indissoluble. Now it could be removed, from naturalised subjects only, in the event of disloyalty or disaffection to the monarch, for trading with the enemy in time of war, for being subject to a prison sentence of over a year in His Majesty’s dominions, and on some other essentially similar grounds.

The British Nationality Act 1948 maintained substantially the same deprivation provisions but introduced a new right for British citizens whose nationality was not wholly clear to register the British nationality that they were entitled to. I shall come to the relevance of that in a moment. The great consolidating and modernising statute that still governs our nationality law, though much amended subsequently, is the British Nationality Act 1981. It is essentially the original language of that Act that Amendment 27 in my name seeks to reinstate. Noble Lords have already recognised the historical roots of the grounds on which the Act allowed the Government to deprive a British subject of their nationality: fraud, of course, but also disaffection towards Her Majesty, trading with the enemy and serving a one-year prison sentence within five years of naturalisation, though now anywhere in the world, not merely in Her Majesty’s somewhat shrunken dominions.

Regarding deprivation, the Act made one change of capital importance. It extended the Government’s power to deprive from naturalised citizens to those registered as having a right to British citizenship. If the 1918 Act made naturalisation a sort of provisional business, the 1981 Act extended that for the first time to the small number of British citizens by right—not by birth or descent, admittedly, but those who had vindicated their nationality through registration.

We move on rapidly to the Nationality, Immigration and Asylum Act 2002, and I am delighted to see the noble Lord, Lord Blunkett, in his place. This Act radically altered the position, extending the Government’s power to deprive to all British citizens by birth, descent, registration or naturalisation. The flowery language about disaffection and trading with the enemy was diluted to any conduct

“seriously prejudicial to the … interests” of the United Kingdom. In a subsequent Act in 2006, it was further diluted to allow deprivation if it were merely

“conducive to the public good.”

These measures were introduced by a Labour Government but no party in your Lordships’ House has wholly clean hands in this regard, because the Immigration Act 2014, introduced by the coalition Government of Conservatives and Liberal Democrats, went even further, diluting the one constraint that the Government faced in exercising this power, namely that it could not be used if it rendered a person stateless. Under the 2014 Act, being rendered stateless is no protection if the Home Secretary reasonably believes that the person could acquire another nationality.

The result is that we have gone, in the space of a century, from an indissoluble bond to a position where an enormous proportion—I cannot calculate it—of British citizens hold their nationality contingently at the discretion of the Home Secretary. This includes anyone with an Irish grandparent; all British Jews, on this solemn Holocaust Memorial Day; anyone, like the Prime Minister, born in the United States; and, of course, the very large number of British citizens who have Commonwealth ancestry that might afford them the opportunity of another passport. My noble friend Lady McIntosh of Pickering said she felt deprived because she was not qualified for dual nationality. I understand what she says, but in return, it must be said, it gives her the protection that many people do not have that she cannot be deprived of her British nationality.

Why has all this happened, and what has been the effect? I have already explained how the first breach in 1918 arose as a response to a vicious, fake news campaign. The “black book” was entirely bogus, obviously: perhaps I did not need to say that. None the less, the powers that it created were never much used. Between 1949 and 1973, 10 people were deprived of British nationality, according to a 2016 report by the noble Lord, Lord Anderson of Ipswich, when he was Independent Reviewer of Terrorism Legislation. Between 1973 and 2002, the power appears not to have been used at all.

The 2002 Act was, of course, a response to 9/11. The 2006 Act was specifically designed, as I recall, to deal with Abu Hamza. The 2014 Act was in response to the case of a Mr Al-Jedda, who had been up to no good in Iraq. Of course, Clause 9 today is an explicit response to a case recently lost by the Government in the courts, the case of D4. If bad law is made by hard cases, what we are witnessing is the wholesale undermining of the rights of British citizenship on the basis of a very few hard cases.

Noble Lords might say that it is all necessary for the protection of the public, and I agree that that is a compelling rationale. There are indeed some very dangerous people in the world, and some of them are British. However, the numbers do not entirely bear out that story. A degree of estimation is required here, because it is not clear that all the numbers are entirely in the public domain. It appears that the number of people deprived of nationality on all grounds were: in 2011, six; in 2012, a further six; in 2015, 18; in 2014, 23; in 2015, 19; and in 2016, 38. In the three following years, some 300 people have had their nationality removed, no doubt because of the rise of ISIS. However, given the damage done to the whole basis of British citizenship, was there really no other means of dealing with these people, who are counted in the hundreds? They could, for example, be tried and convicted in a court of law, rather than effectively reintroducing the medieval punishment of banishment.

Those who speak against Clause 9 today are, in my view, slightly missing the point. Clause 9 is merely an administrative tidying-up of an iniquitous system. It is much better to address the root cause, and that is what I ask your Lordships’ support for in this amendment in my name and in the names of my noble friends Lady Warsi and Lady Mobarik and the noble Baroness, Lady Fox of Buckley. I am grateful for the help that I received from Amnesty in drafting it. The amendment not only deletes Clause 9; it effectively eliminates all the changes made to Section 40 of the British Nationality Act since 1981. Section 40 is the section that deals with deprivation.

The wording is slightly changed from 1981 to make it coherent with changes to other parts of the Act in the last 40 years. There is one change of substance: except in cases where registration has been obtained by fraud, my amendment eliminates also the Government’s powers to remove the nationality of British citizens by registration because they are citizens by right, just like the rest of us, and confines it to those who are naturalised. The grounds for deprivation remain as high as they were in 1981; they cannot be used if they will cause statelessness. The appeal to a tribunal remains, as does the requirement for the Government to give notice.

There are those who would go further. Amendment 32, in the name of the noble Baroness, Lady Bennett of Manor Castle, would more radically extinguish the power of deprivation altogether. I understand her argument. I do not disagree with her, and if the House supported her amendment in preference to mine I would be perfectly content. But I have taken the view that reverting to the original language of the 1981 Act might be more acceptable to your Lordships’ House, being tried and tested and coherent with the other parts of this important Act. It may not be perfect, but I would not want us to fall into arguments about terminology. As I say, if the House preferred the noble Baroness’s amendment I would of course be happy with that.

The current degraded state into which we have, by means of the changes made since 2002, allowed the whole concept of British citizenship to fall has a particularly deleterious effect on minority communities. Because I have spoken quite long enough, I shall leave it to other speakers who I know are going to expand on that. It also has an effect on us all. When something as important as nationality and national identity is treated by our own Government like a mere driving licence or library ticket that can be cancelled by administrative fiat, we are all the poorer.

It is not often that life gives you the chance to go back, start again and get it right the second time around. This is one of those cases and I urge noble Lords in all parts of the House to seize it.