Schedule 3 - Repeals

Immigration, Asylum and Nationality Bill – in a Public Bill Committee at 9:00 am on 25 October 2005.

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Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office 9:00, 25 October 2005

I beg to move amendment No. 112, in schedule 3, page 29, line 40, column 2, at beginning insert ''In section 40A(3), the word ''and'' before paragraph (d).'.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following amendments:

Government new clause 4—Deprivation of Citizenship—

'(1) For section 40(2) of the British Nationality Act 1981 (c. 61) (deprivation of citizenship: prejudicing UK interests) substitute—

''(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.''

(2) At the end of section 40A(3) of that Act (deprivation: appeal) add—

'', and

(e) section 108 (forged document: proceedings in private).'';

(and omit the word ''and'' before section 40A(3)(d)).'.

And the following amendments thereto: (a), after proposed new subsection 40(2) of the British Nationality Act 1981, insert—

'(2A) The powers in subsection (1) shall not apply if the effect is to render the person stateless.'.

(b), after proposed new subsection 40(2) of the British Nationality Act 1981, insert—

'(2A) In exercising powers under subsection (2) the Secretary of State must be satisfied that deprivation of a person's citizenship is justified on the basis of—

(a) national security,

(b) maintaining good international relations,

(c) maintaining public order, or

(d) the person having committed offences set out in section 1(1), 2, 5, 6, 9, 10 or 11 of the Terrorism Act 2006 [c. ].'.

Government new clause 5—Deprivation of right of abode—

'(1) After section 2 of the Immigration Act 1971 (right of abode) insert—

''2A Deprivation of right of abode

(1) The Secretary of State may by order remove from a specified person a right of abode in the United Kingdom which he has under section 2(1)(b).

(2) The Secretary of State may make an order under subsection (1) in respect of a person only if the Secretary of State thinks that it would be conducive to the public good for  the person to be excluded or removed from the United Kingdom.

(3) An order under subsection (1) may be revoked by order of the Secretary of State.

(4) While an order under subsection (1) has effect in relation to a person—

(a) section 2(2) shall not apply to him, and

(b) any certificate of entitlement granted to him shall have no effect.''

(2) In section 82(2) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (right of appeal: definition of immigration decision) after paragraph (ia) insert—

''(ib) a decision to make an order under section 2A of that Act (deprivation of right of abode),''.'.

And the following amendment thereto: (a), at end of subsection (2), insert—

'In exercising powers under subsection (2) the Secretary of State must be satisfied that deprivation of a person's citizenship is justified on the basis of—

(a) national security,

(b) maintaining good international relations,

(c) maintaining public order,

(d) the person having committed offences set out in section 1(1), 2, 5, 6, 9, 10 or 11 of the Terrorism Act 2006 [c. ].'.

Government new clause 6—Acquisition of British nationality, &c. Mr. McNulty: I share your optimism about our deliberations today, Sir Nicholas. We have come to a series of new clauses that relate not just to the events of 7 and 21 July, but in part reflect our wider response over the last year to the general terrorist threat. I shall make three quick points by way of introduction. First, of course, the backdrop to our deliberations is the proceedings on the Terrorism Bill in the Chamber last night. I hope that while they inform our debate, we do not have reruns of the debates downstairs.

Secondly, the new clauses are specific to particular matters relating to asylum and immigration. While the wider proceedings on the Terrorism Bill are germane, I ask the Committee to bear it in mind that there is a narrow focus to each of the new clauses, which applies not to millions or thousands but to small, albeit significant numbers of people.

Thirdly, on a point of procedure, as much as we possibly can, given that the Terrorism Bill is the backdrop, there may be cross-referencing in terms of words, definitions and criteria. It is not for me to pre-empt the passage of the Terrorism Bill, but it may be amended and in so far as the two parliamentary procedures align, we will try to ensure that there is appropriate cross-referencing of definitions and criteria as well as clauses.

Following the terrorist attacks in London on 7 July, the Home Secretary published a list of behaviours on 24 August which, he said, would form the basis for the use of his discretionary powers to deport and exclude from the United Kingdom those whose presence here was deemed not to be conducive to the public good. Such behaviours included speaking or publishing material which encourages or provokes terrorism or other serious criminal activity.

It is, in our view, now essential that we have similar powers to withhold and to remove British nationality   and the right of abode in the United Kingdom where an individual is found to have engaged in such activity. It is wrong that certain individuals with rights of residence elsewhere should be allowed to acquire and then to shelter behind their British citizenship, or their right of abode here, so as to avoid the consequences that would otherwise befall them.

New Clause 4 would replace an existing criterion for deprivation of British nationality, namely that the person concerned had done something which was

''seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory'' with the criterion that the Secretary of State deemed it conducive to the public good to deprive a person of his or her British nationality.

I emphasise that the rights of appeal against deprivation of nationality provided for in the current law are unaffected by the amendments, except to the extent that new clause 4 would also enable the asylum and immigration tribunal to receive evidence in private where it was alleged that a document relied upon by either party was a forgery and disclosure of how that forgery was detected would be contrary to the public interest. It already has that jurisdiction in the case of appeals against asylum and immigration decisions. Amendment No. 112 follows consequentially from that minor change. The proviso that, unless nationality was in the first place obtained by deception, deprivation of nationality cannot proceed where the end result would be statelessness, will continue to have effect.

Section 2 of the Immigration Act 1971 confers the right of abode in the United Kingdom—the right to enter and remain here without any need for leave to do so—on all British citizens and on certain other Commonwealth citizens who had that right before the law on right of abode was last amended in 1983. Falling into the latter category are, primarily, citizens of Commonwealth countries such as Australia and Canada whose mothers were born in the United Kingdom and Commonwealth citizen women married before 1983 to men with the right of abode here.

In the case of British citizens who have engaged in certain unacceptable behaviours there is, as I have just explained, a mechanism for taking away British citizenship and, thus, the right of abode that goes with it. There is no similar mechanism for taking away the right of abode where that right derives, in part, from citizenship of a Commonwealth country other than the United Kingdom.

New Clause 5 would enable the Secretary of State, by order relating to a named individual, to remove a right of abode where it was considered conducive to the public good that the individual be excluded or removed from the United Kingdom. There is a precedent for that in the Immigration Act 1988, which prevents exercise of the right of abode by certain women seeking to join husbands in this country to whom they are polygamously married and who have already been joined by another wife. But whereas the restriction in the 1988 Act applies to a defined class of people, the restriction that we propose could be   imposed only on an individual basis and would be subject to a right of appeal, either to the asylum and immigration tribunal in the first instance or, where sensitive information might otherwise be disclosed in the course of the appeal, to the Special Immigration Appeals Commission. Our exercise of the power would be informed, but not wholly constrained, by the published list of ''unacceptable behaviours'' to which I have referred.

The third new clause in this group is new clause 6. It proposes that those eligible to receive British nationality by registration should first be required by law to satisfy the Secretary of State that they are of good character. At present such a requirement applies only to those seeking to acquire British nationality by naturalisation. The registration route is reserved for those people—minors, certain persons already holding a form of British nationality, and certain persons with ancestral connections to the UK—whose particular circumstances are deemed to merit varying degrees of exemption from the full rigours of the naturalisation process. We are aligning the two processes of nationality by naturalisation and registration so that they have a common legal base.

An exception would continue to be made in a small number of cases where, because of our obligations under the 1961 United Nations convention on the reduction of statelessness, it would not in general be possible to refuse on character grounds where statelessness would be the result. These are a fairly complex way of doing fairly straightforward things. I have put on the record the reasons for new clauses 4, 5 and 6 and I commend them to the Committee.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

I welcome you to the Chair today, Sir Nicholas. I begin by repeating my thanks to the Minister for his kindness the other day in making his helpful officials available to us on these Benches to discuss the new clauses. I also thank him for his letter about the list of unacceptable behaviours and also for letting us have copies of UN Security Council resolutions 1373 and 1377, which we have read with interest.

The courteous and thoughtful way in which the Minister introduced his new clauses is appreciated by all of us in Committee. We stand united behind the Government in their attempts to combat the scourge of terrorism. He was right to refer to the fact that the backdrops to our debates today are the Terrorism Bill and the appalling events of July. Let no one outside this building think that there is any prospect or possibility of a division between us on our common aim.

In thanking the Minister for the way he has introduced these matters, may I say that in the next few minutes I should like to probe him on new clauses 4, 5 and 6 and to raise some concerns that have been expressed to me. It is our duty as Her Majesty's loyal Opposition to ensure that questions and concerns relating to Government measures are properly raised. The crucial new clause before us is new clause 4, which deals with deprivation of citizenship and develops and changes the present law. We need all to understand, as the Minister will confirm, that this cannot make a   person stateless. It applies only to persons with dual citizenship.

It is important also to look at what happened in 2002. During our deliberations on the Nationality, Immigration and Asylum Act 2002, we considered the issue of deprivation of citizenship at great length. I recall the hon. Member for Walthamstow (Mr. Gerrard) serving on the Committee at that time. I think he has served on every such Committee over the years. He will recall our lengthy and important debates. The test, after those long debates in Committee, was very different from what is now proposed. Section 4(2) of that Act states:

''The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of (a) the United Kingdom, or (b) a British overseas territory.''

We had long and interesting debates about the Secretary of State being satisfied, as opposed to thinking, and about things that might be seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory.

One of the questions that arose then that arises now is the question of an appeal. I am sure that the Minister will be able to confirm that someone whose citizenship is to be taken away under the new measures will, in a sense, have the same rights of appeal that he had under the 2002 Act. At that stage, in what I might call a normal deprivation of citizenship, there was a right of appeal to an adjudicator in the normal way. That is an important protection. If there was a deprivation of citizenship in relation to an issue that we might loosely put under the umbrella of national security and/or terrorism where it was a sensitive area, can the Minister confirm that it was and will remain the case that an appeal will still lie by the aggrieved party to the Special Immigration Appeals Commission—that is to say, the Secretary of State's decision now, and as it was then, is still open to challenge?

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office 9:15, 25 October 2005

I want to clarify and confirm that, save for the exception that I pointed out, which is covered in new clause 4, where forged documents are clearly used and we do not want to expose how we discovered that they were forgeries—that would go straight to SIAC and be private, rather than going to the asylum and immigration tribunal.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

I am grateful to the Minister. The issue of forgery and fraud cropped up in 2002; I thank him for his confirmation. The new test is conducive to the public good. I am sure we would all agree that that is a much watered-down test compared with the more stringent test under the Act of 2002, because with something that is prejudicial to the vital national interest we have an idea of what is going on, even though there is an element of subjectivity, but saying that something is not conducive to the public good needs a little further explanation from the Minister.

In a sense linked with that, questions arise as to what has been happening in relation to deprivation of   citizenship in the past. It is my understanding—I hope that the Minister will confirm it—that up to 2002 when the last Act was passed, only one person had previously been deprived of citizenship, so it is a rare occurrence. I should like to know how many persons since 2002 have been deprived of citizenship pursuant to the test laid down in the 2002 Act. The Minister referred to a small but significant number of people who might be envisaged to come within the umbrella of the Act. Will he be more specific? Are we talking about half a dozen, a dozen, or hundreds—roughly how many does he think may be affected? It is important to know how many people have been dealt with under the 2002 Act and perhaps how many people have been prosecuted, and how many people he envisages might come under this umbrella.

Of course, to lose one's citizenship, Sir Nicholas, one has either to have done something or said something. There has to be an activity. Let us focus on the doing. That brings us a little into an overlap with crime and one wonders what the extent of the overlap is—whether the Government think that deprivation of citizenship is better than or different from charging with a criminal offence, because if one commits an act it is almost certain to be a criminal act and prosecution should follow.

Will the Minister envisage and tell us of situations where prosecutions might not take place because there has not been a criminal act and nevertheless deprivation of citizenship is brought into play? Similarly, if one has not done something but said something, the same proviso applies. It might be a crime: if it is, will it be prosecuted? Is deprivation of citizenship to be used instead of a prosecution? I will refer to that in a moment.

I remark in passing—and the Committee will have noticed—that under new clause 4 the Secretary of State has to be satisfied that the deprivation is conducive to the public good, but in new clause 5 there is a different wording. It states,

''if the Secretary of State thinks that it would be conducive to the public good''.

There were some powerful debates in 2002 on what is meant by ''thinks'' and ''satisfied''. At the time we thought that ''satisfied'' was a stronger test. Does that mean that ''thinks'' is a weaker test? In any event, one assumes that there is implied in the Secretary of State's decision a need for reasonableness—something that the Minister confirmed in 2002, but I should be grateful if he would comment on it now.

It is instructive to look occasionally at what has been said in the past. The deprivation of citizenship clauses were introduced to the Committee by the hon. Member for Wallasey (Angela Eagle), who was the Minister at the time. There were those who expressed concerns even about the fairly strict test implied by the phrase ''seriously prejudicial''. The Immigration Law Practitioners Association and a number of other outside bodies wanted proper safeguards included and they were right to do so. Of course, they were speaking before we had had the appalling tragedies of July this year. Life moves on, and it does not follow that those bodies would necessarily put what they said then in the same terms now.  

I am sure that the Minister of State will have read the record of the Committee's lengthy debate on those issues very carefully and I shall not quote from it at length. I simply point out that the then Minister confirmed that there was no issue about anybody being left stateless. She said that there was no distinction in law between ''thinks'' and ''is satisfied that''. Does the Minister of State think that that is the case now? Some of us on the Committee took a different view, but if those phrases do mean exactly the same, as the then Minister thought they did, it is perhaps a little odd that we have ''is satisfied'' in one Government new clause and ''thinks'' in the other. Many members of the Committee thought that the term ''thinks'' was rather wide and that the words ''has reasonable grounds to believe'' should have been inserted.

At that stage, the then Minister very properly drew the phrase ''vital interests'' to the Committee's attention, reminding us—this is worth repeating—that it was based on article 8 of the 1961 UN convention on the reduction of statelessness and article 7 of the 1997 European convention on nationality. She was pretty clear that the exercise of the power to deprive someone of their citizenship would be used only in very rare circumstances. In fact, she said that it would apply to someone

''in certain circumstances, if they have behaved in ways that amount to treason, problems for national security or interfering with the vital interest of this country.''—[Official Report, Standing Committee E, 30 April 2002; c. 60.]

She went on to say that the behaviour would have to be pretty appalling. That was the position then, and it is important to know how many such persons have been dealt with since and why we now have

''conducive to the public good'', which is a much weaker test. Would the Minister, for example, expect the Secretary of State to act on uncorroborated information from a foreign Government intelligence service without due inquiry into its veracity?

I am sorry to mention the hon. Member for Walthamstow again, but he has a distinguished background on this issue. He was, I think, one of the members of the Committee in 2002 who were at pains to be assured that the reasonableness test would be applied, and I am sure that he feels the same now. We speak from the same book in so many ways on this matter—[Interruption.] The hon. Gentleman is protesting, but I was trying to pay him a compliment. Perhaps I should not have mentioned him, but there we are.

I shall make a few concluding points on this important Government new clause. I understand why the Minister has tabled new clauses, but some people outside this building are a little concerned that the provisions have been tagged on to the Bill, which, after all, relates to asylum and immigration. Concerns have been expressed that if one incorporates what are, in effect, counter-terrorism measures in an immigration and asylum Bill, one thereby sustains the fallacy that there is a connection between asylum and terrorism, which can be a severe misunderstanding and can put innocent people's lives in danger. I really do appreciate   the Minister's difficulty, but he will understand that concerns have been expressed about that point, and I wonder whether he thinks that the new clauses might better have been tagged on elsewhere. It is a difficult issue—I well understand that—but the Minister would be the first to agree that the general statement that asylum seekers have nothing to do with terrorism but are merely fleeing persecution is one that we should continually repeat and adhere to, notwithstanding the new clauses.

I referred earlier to the importance of prosecuting those who commit acts that might result in the deprivation of citizenship. I remember a comment that Lord Filkin made in the other place in 2002, to which the Minister may care to respond. Lord Kingsland had raised an important point about whether the Government would use the power of deprivation to avoid prosecutions under Acts such as the Terrorism Act 2000 and others. Lord Filkin stated:

''I am happy to give a categorical assurance that if we, or rather—I must qualify that—the Director of Public Prosecutions thinks there is evidence, the state would hope that prosecutions would proceed in all such circumstances.''—[Official Report, House of Lords, 9 October 2002; Vol. 639, c. 282–3.]

That was an important statement of principle.

When the Minister tells us how many times deprivation of citizenship has been used since 2002, I hope that he will also tell us how many of those cases involved a prosecution. I hope that he will also confirm Lord Filkin's commitment to Lord Kingsland and assure the Committee that he will not use the new clauses to export risk but rather use extradition law or pursue criminal investigations and prosecutions.

The phrase ''vital interests'' was used in 2002. I remember Lord Filkin stating:

''I was also asked about vital interests. Of course, that includes national security, but it also covers economic matters, as well as the political and military infrastructure of our society.''—[Official Report, House of Lords, 8 July 2002; Vol. 637, c. 506–7.]

I hope that the Minister will give some illustrations of the kind of conduct that does not come under the terrorism umbrella but that might lead to deprivation of citizenship on the basis that such deprivation would be conducive to the public good. It is important to make a distinction and to separate off the many forms of such conduct, such as causing economic harm and the like.

It is important that the Minister explain how circumstances have changed to justify the much weaker test of ''conducive to the public good''. What has gone wrong with the law in the past two and a half or three years since the 2002 Act? Can he give us some serious examples of persons who are not covered by the test in the 2002 Act and who do not fall under the previous definition because their conduct is not of that nature but who, nevertheless, are of such a calibre that their citizenship ought to be removed from them? The question of why the extra test is required is important.

The phrase ''conducive to the public good'' is a long-tried concept in immigration law. It is the test that is applied in deportation cases. Could the Minister   tell us how the new test is intended to differ from the old one in its effect, and the class of activity that would be caught by it? ILPA is one body that is slightly concerned about the way that the phrase ''conducive to the public good'' has been applied in deportation cases over the years.

Subject to what I have said so far, it is not my party's intention to press for a Division on new clause 4. However, it is possibly the most critical new clause that has been proposed, and it is right to probe it.

This is an interesting minor point. Concerns have been expressed about dual nationals. Perhaps the Minister could comment on the following. While British citizens of Jamaican or Zimbabwean parentage might be dual nationals and are thus vulnerable to deprivation, am I right in thinking that British citizens of, for example, Indian or Ugandan parentage are not, because India and Uganda do not permit dual nationality? That anomaly is entirely dependent on the whims of other countries, but the conduct of the person here might not relate at all to his or her country of origin. The Minister will tell us that the new powers will be used only in the rarest of cases. However, he must accept that there is a fundamental difference between being seriously prejudicial and vital to the national interest of the country and the new test of public good. There are concerns about that drop in standard, so he needs to justify it to us.

Briefly, on new clause 5 on deprivation and right of abode, it is proper that any proposal to deprive people of their right of abode should attract no less protection than a power to deprive people of citizenship. The test in the new clause is that the Secretary of State ''thinks'' that the person's exclusion or removal would be conducive to the public good, as opposed to being ''satisfied''. The Minister has a duty to tell us why there is that difference, particularly given that his predecessor said that the words meant the same thing. If they mean the same thing, it is interesting that they have been used separately. Why is a different test applied to deprivation of the right of abode? What right would a person deprived of a right of abode have to challenge his exclusion, if not in the UK, or removal if here? Would there be opportunities to present human rights arguments, both against deprivation of the right of abode and against exclusion or removal? Would people deprived of a right of abode have any opportunity to challenge their exclusion or removal from the UK? Given the seriousness of the loss of rights associated with the loss of right of abode, would the Government consider amending the clause to provide protection against retrospective application of the new powers?

Finally, new clause 6 deals with good character. It is an interesting anomaly that citizens by naturalisation are subject to the good character test, but the registration process is not subject to that test. Can the Minister let us know what he means by bad character? Again, we support the general thrust of the measure, but bad character in our criminal courts has a meaning of its own. If you or I, Sir Nicholas, appear   before a district judge at Bow street, both of us are entitled to say to the district judge—formerly chief stipendiary magistrate—''I am a man of good character'', and that is taken into account as evidence of our lack of propensity to have committed the offence in question. Arguments often arise as to whether a person is of good character if he committed one shoplifting offence 26 years ago. Then we move into the realms of spent conviction. The issue of bad character is a thorny one in our courts. Can the Minister tell us a little more about what is meant by bad character? We would appreciate that.

The Minister has already alluded to my last point on clause 6, which concerns children. Is it appropriate to impose a good-character test in the case of children, some of whom will be very young? A comment on that would be greatly appreciated.

I have said all that I wish to say on the new clauses and the amendments to them. I conclude with two remarks that I wish to reinforce with all the intensity of which I am capable. First, it is our duty to probe the Government and to raise concerns that have been expressed elsewhere. Secondly, it is my duty—one that I carry out with great pleasure—to thank the Minister and his staff for their courtesy in assisting us with the new clauses. I remind him and those outside that our common objective must be, and will always remain, the same. We are here to probe and to express the concerns, with which we agree in some part, that have been raised with us. Our fundamental position remains four square behind the Government.

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities 9:30, 25 October 2005

I welcome you back to the Chair, Sir Nicholas. I also express my thanks to the ministerial team from the Home Office and its legal department for the helpful briefing with which they provided me earlier this week.

The purpose of the two probing amendments on new clause four—I do not make any claim that the wording is for statute purposes—deals with some of the issues that I wish to raise. I shall briefly speak to them. I shall not repeat the sentiments of the hon. Member for Woking (Mr. Malins) or the points that he made. I have several questions, especially on new clause 4. I would be grateful if the Minister would address them if I go through them sequentially.

The new test for deprivation of citizenship is that the Secretary of State must be

''satisfied that deprivation is conducive to the public good.''

As we have already heard, that differs from the previous test, which states that he must be

''satisfied that the person has done anything seriously prejudicial to the vital interests of''.

The first point that I raise concerns the change in tense. The provision in the Nationality, Immigration and Asylum Act 2002 talks about a person having done something. The provision in new clause 4 uses the present tense and, effectively, the future tense. It says that to deprive a person of citizenship ''is''—or, in effect ''will be''—

''conducive to the public good.''

Will the Minister acknowledge whether he believes that to be a significant change? Is the scope of the provision wider in that citizenship can be deprived based on an intention to commit acts rather than because acts have been committed? That differs slightly from what the hon. member for Woking said. Therefore the Secretary of State may satisfy himself on an assumption of what a person might do in future rather than on anything that that person has done. The question of prosecution does not even arise, let alone whether that prosecution would take place.

The hon. Member for Woking has made my second point, so I shall not elaborate on it. Does the concern over the elision between someone not being conducive to the public good and someone being related to terrorism exist because of the current climate? I note that he gently distanced himself from necessarily sharing that concern. However, that concern is felt not only outside the House, as he put it, but, as far as these measures are concerned, inside the House.

The Government have been clear that it is convenient to use the Bill as a vehicle to introduce the new clauses. They have been open and consultative about the nature of the way in which it is being done. One must accept that it is for the Government to choose the vehicle to introduce those clauses. I hope that the Minister will continue to make every attempt to ensure that in the public mind and the mind of the media there is no automatic read-across between immigration and asylum and terrorism. I am sure that he would agree about that.

The hon. Member for Woking spoke of a concern about exporting risks. That concerns prosecutions and I gave an undertaking not to repeat that discussion, but I share his concerns and look forward to the Minister's answer.

In 2002, one of the justifications for changing the relevant wording to the phrase

''seriously prejudicial to the vital interests'' was that it produced a direct alignment to the 1961 UN convention on the reduction of statelessness. Article 8(3)(a)(ii) states that a state may deprive someone of nationality if he has

''conducted himself in a manner seriously prejudicial to the vital interests of the State''.

That was the basis on which, I believe, the wording entered the European convention on nationality, article 7(1)(d) of which specifies

''conduct seriously prejudicial to the vital interests of the State Party''.

Alignment with the convention was a welcome feature of the measure in question, because it would enable this country to judge its approach in comparison with what was accepted as an evolving definition, but, nevertheless, an international one. The Government now want to move away, by means of the provisions before us, from something that is easily comparable with international conventions. I argue that a specific justification is needed for that, including recognition that giving up that alignment is a loss.

To return to the nature of the test, and the notion of what is conducive to public good, I understand—and   the hon. Member for Woking briefly hinted the same—that the law before 2002, derived from the British Nationality Act 1981. The Nationality, Immigration and Asylum Act 2002 changed the rather old-fashioned wording about disaffection and treason in time of war, and a serious criminal conviction within five years of acquisition.

The old laws, however, contained the expression ''conducive to public good''. Once the threshold was passed and it was considered that the actions in question fell within the definitions about disaffection, treason and probably contact with the enemy, a further test was applied. The Secretary of State had to be satisfied, additionally, that it was not conducive to the public good that the person should continue to be a British citizen.

That is not brand new in nationality law, but it was an extra step. I do not think that claiming that an earlier and wider test is being reverted to amounts to a defence to the point that has already been made. Whether or not it is wider, it is not now a straightforward test about what is conducive to the public good. The rule is clearly far wider than the one about conduct seriously prejudicial to the vital interests of the state. The Liberal Democrats are not yet convinced that it is justified, and I shall talk more about that with reference to amendment (b).

I understand, although I am happy to be corrected, that a justification for moving to the wider form of wording is the equalising of the tests for deprivation of nationality, where that is possible, and deportation and expulsion. One can understand the rationale for that, but it is not axiomatic that it should happen. Deprivation of citizenship is a different issue from the powers that the state can exercise against foreign nationals that it does not want to admit, or wants to deport. If the Government rely on that argument to justify the provisions, they are treating citizenship differently from before in relating it to how we treat the admission and expulsion of aliens to and from our territories, particularly given that, in some cases, it is a way of expediting the expulsion of one of our own nationals. The expression used is that it is the right of citizenry to change their Government but not of the Government to change the composition of the citizenry by banishment of its awkward elements. That is a way of explaining the general principle of why we treat the loss of citizenship differently from keeping people out or removing those who are not citizens.

My next point relates to the 1997 European convention on nationality and whether we actually ratified it. Earlier, the hon. Member for Woking quoted from the House of Lords, and it was said on 8 July 2002 that the Government hope to ratify the 1997 European convention on nationality in due course. I am interested to know whether it has been ratified and, if not, whether our moving away from the language in that convention has implications for our ability to ratify it or to continue to have it ratified if we have done so already. The Minister can clarify that in a relatively straightforward way.  

Amendment (a), which probes the question of statelessness, would put in statute:

''The powers in subsection (1) shall not apply if the effect is to render the person stateless.''

I do not for a moment doubt the Government's position on that as it was made clear in a letter from the Home Secretary to Opposition spokespeople in the first instance and has been stated again today. However, it would be useful to know why it is not being placed in statute. If it is in statute, will the Minister refer to the appropriate section?

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office 9:45, 25 October 2005

Just to get that out of the way, section 40(4) of the British Nationality Act 1981 now states:

''The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.''

We are not doing anything to that proposal; it remains on the statute book, so it does not need to be repeated in the Bill.

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities

I am grateful for that clarification, which I wholly accept, and for not stooping—or rising—to use the word ''otiose'' because I want to get there first and say that amendment (a) is unnecessary in that case.

There is the matter of retrospectivity about the new wording. Section 4(4) of the Nationality, Immigration and Asylum Act 2002 contains important safeguards against retrospectivity and thus for acts that are seriously prejudicial to the vital interests of the country. Before it came into force, a person could not be deprived of his or her nationality unless he or she could have been so deprived under the previous law.

The new provision is much wider and therefore will catch people who would not otherwise have been caught. Therefore, if there is no protection against retrospectivity, there is a big gap compared with previous practice. How does the Minister justify that? Will he consider producing a retrospective application in respect of conduct prior to the measure coming into force?

There is a further question with respect to appeals. As I understand it, there will be a provision whereby people can appeal—it is relatively obvious from new clause 4, unless I am misreading it, that there will be an appeal—but is it the Minister's intention to allow appeals not just against the deprivation of nationality, but sequential appeals against the deprivation of leave of residence and a decision to deport the person, or will we see a combination of those appeals, as we has happened in other aspects of the law? It is necessary to separate the appeals as they raise different issues, require different tests and have different effects, not least on the human rights of the people concerned.

On amendment (b) and its purpose, I hope that the Minister will accept it as a probing amendment. It makes a general point and I do not defend the wording as accurate. The Terrorism Bill contains a form of words about offences, particularly in clause 1. It refers to encouragement and uses terms such as   ''glorification'', which is defined rather widely to include expressions such as ''praise''. I suspect that that form of wording will become law in some form—Parliament will decide the exact words.

When we talk about ensuring that the clauses deal with the ability to capture those offences that the Government argue are new, it would be useful if the Government could make it clear that they want to use the powers in respect of terrorism-type offences in the same way. However, the wording in the list of unacceptable behaviours is significantly different from that used in the Terrorism Bill. In other words, although we have now seen the expression of views that the Government consider to be extreme and to conflict with the UK's culture of tolerance dropped from the list of unacceptable behaviours that was consulted on—I want to express my thanks and gratitude for the fact that that was done—other terms are used, particularly verbs such as ''foment'', ''justify'' and ''foster'', that do not appear in the Terrorism Bill and are therefore arguably wider, but certainly potentially confusing.

The Minister will be aware that that point was raised by me and others with the Home Secretary in the Joint Committee on Human Rights. We do not have the minutes, so I will not quote verbatim, but the Home Secretary suggested that he would be willing to consider the issue. I think he said that after the wording of the Terrorism Bill was decided by Parliament there would be a case—he did not go any further—for trying to align the words used in the list of unacceptable behaviour. The question of what word is used—whether it is fomenting, justifying or glorifying terrorism—occurs in other areas and it would be useful if such terms were aligned. Otherwise, one does not have the certainty required.

I have a couple of points on new clause 5. I will start with the same point that I made on amendment (b), which is similar to amendment (a). Can the Government be persuaded to recognise the merit in aligning the wording used for offences? I am sure that the intention of the new clauses is to capture people who are doing things that encourage terrorism or indirectly incite people to acts of terrorism. One could argue, however, that the term ''seriously prejudicial'' to the vital interests of this country covers the offence of encouraging terrorism.

We have already debated the difference between ''satisfied'' and ''thinks'' and I shall not repeat that argument. However, there is a difference in wording between the two tests proposed in Government new clauses 4 and 5. In new clause 4, the test is that the Secretary of State should be satisfied that deprivation ''is conducive'' to the public good. In new clause 5, the test is that the Secretary of State thinks that the person's exclusion or removal ''would be'' conducive to the public good. Is that difference significant? If not, will the Minister consider aligning the two provisions so that there is no doubt? As it is, one seems to be forecasting the future and the other, using the present tense, is looking at current conduct.

The basic problem with new clause 5 is that the wording is so wide; it does not refer simply to acts of terrorism, as I suggested when speaking to   amendment (b). The hon. Member for Woking asked about the right of appeal, but subsection (2) clearly suggests such a right.

The hon. Gentleman briefly mentioned retrospectivity. Will there be protection against the retrospective application of the new powers, or can the Minister clarify that that is not the intention? If it is meant to be retrospective, we can debate whether it is justified either now or at a later stage.

I share the concerns expressed about the impact of new clause 6 on children, many of whom gain registration by entitlement or by discretion. Will young children and babies automatically be included in the rules on naturalisation, including the test of good character? If they are, they will not be able to fulfil the provisions. The only way forward would be a negative test—that there was nothing to suggest that they were of bad character.

I am grateful to the Minister's team for providing me with a list of the sections mentioned in new clause 6 and for explaining the tests for registration, through entitlement or discretionary registration and naturalisation, many of which apply to children. Does he envisage any practical difficulties resulting from changing the way in which people acquire British nationality?

In summary, we have serious concerns about the wording of new clause 4. However, the new clauses were introduced openly and after consultation, so despite those concerns we do not intend to divide the Committee. Given the spirit of our debate, I would be grateful if the Minister could address all the points that I have raised.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I remind the Committee that we will adjourn at 10.25 am, so that Members can attend in the House for Question Time and business questions. We will meet again between 1 pm and 5 pm. I hope that the Committee will ensure that all these important new clauses can be properly and constructively debated, despite the time restraint imposed by the programme motion.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

I hear what you say, Sir Nicholas, and I shall not take long, as I do not want to repeat what has been said.

The hon. Member for Woking was complimentary about me earlier. I shall have to ask my hon. Friend the Member for Enfield, North (Joan Ryan), the Government Whip, to ignore that. I wish that he would not say such things; it does me no good.

We had a long debate in 2002 about the power to deprive people of citizenship. The reasons for wishing to deprive someone of citizenship are often linked with the desire to remove that person from the UK. We are all aware of cases in which tabloid newspapers have demanded the removal of individuals whom they considered to be stirring up problems.

There are changes in the wording, such as that from ''seriously prejudicial to vital interests'' to ''conducive to the public good''. To an extent, we have to view them in relation to the powers of the Terrorism Bill, consideration of which has yet to be concluded. The   list of unacceptable behaviour was produced in a letter sent out by the Home Secretary in August, which mentioned unacceptable behaviour by non-UK citizens. I assume that we should read across from that to what is intended here. It does not cover terrorism alone. One of the items in the list was serious criminal activity, or provoking others to commit serious criminal acts. We are not talking about powers that might be used only in relation to terrorism—they could, for example, be used against somebody who is involved in serious drug dealing. I would be interested to know how many times the powers have been used since 2002. The point that was made then is still valid now: such powers are not used simply to export problems for somebody else to deal with.

On the point about dual nationals, I have previously asked the Minister how many people it will affect. A number of countries do not allow dual nationality, so a person who takes up British citizenship and who was previously a citizen of one of those countries has to give up his original nationality. The number of individuals affected will be limited by the number of countries that apply that restriction.

One issue arises from all the new clauses, and I should be interested in the Minister's comments. What will be the impact on the dependants of somebody whose citizenship or right of abode is removed? There does not appear to be anything about that in the new clauses. Can he confirm that that is the case?

New clause 5 appears to affect a relatively small number of people, because it concerns those who acquired the right of abode through the ancestry route. That number will not grow; in fact, it will diminish because nobody now acquires the right of abode in that way.

I do not consider that new clause 6 is a problem. It brings into line registration and naturalisation. The test of good character has applied to naturalisation for a long time and we have plenty of experience with it. Nor will it be unique—registration cases might tend to involve children more often than naturalisation cases, but I am sure that there will be naturalisation cases involving relatively young people. The question of how to apply the test of good character to somebody young is not new or complicated—unless one believes in original sin. However, I do not think that that is likely to be used as a test in such cases. Some important issues have been raised, which I will not repeat, about retrospectivity and the levels of test that will be applied. I trust that the Minister will address those issues in his response.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office 10:00, 25 October 2005

I shall make a few general remarks, and then I shall try to deal with each issue in turn.

The Bill is about immigration, asylum and nationality law, and the new clauses are about changes to that law in terms of what is happening now in our wider counter-terrorism initiative. The idea that we subscribe in any way to the notion that asylum seekers are problematic, and that it is appropriate to include these amendments in the Bill because asylum seekers are inextricably linked to terrorism, is   nonsense. People should understand that this is the appropriate place to amend those parts of the legislation in terms of the wider backdrop of what we are doing. I am therefore more than happy to associate myself with the remarks made by the hon. Member for Woking about uncoupling the spurious notion that asylum seeker equals terrorist equals problem. That is nonsense. It is just that this is the appropriate place to put the amendments in terms of the scope of the Bill. It would not have been appropriate, given the scope of the Terrorism Bill, to include them in that Bill. They sit more appropriately in this Bill, but the idea of a causal link is wrong.

I am grateful to the hon. Member for Oxford, West and Abingdon (Dr. Harris) for moving his probing amendments in the way that he did. As the hon. Gentleman accepted, his amendment concerning statelessness is not needed, because that important issue is dealt with elsewhere.

In the wider sense, and with reference to my introductory remarks, in legislation such as this there is, and will continue to be, a debate on whether to include a pithy little remark that one hopes will catch everything, such as in the 1981 legislation initially and then in 2002, in terms of a test, or a partial, indicative list of what might form unacceptable behaviour but that is not meant to be exhaustive, or a list that is as exhaustive as possible. As I said at the beginning of the debate, in as much as we can align what results from our consideration of the Bill with what is going on in the Terrorism Bill, we will try to do so, because that makes perfect sense. I have no doubt that this is one area in which matters will evolve. I hope that we will reach a common place where people accept that pithy little remarks à la 1981 and 2002 are no longer enough. One has to go further than that, but trying to be exhaustive in the Bill is probably not appropriate.

I shall give one example. If I were to accept the hon. Gentleman's amendment, the notion of terrorist murder would not form part of unacceptable behaviour. That is not the intent behind his amendment but, as it is drafted, that is what would result. I accept the spirit of the amendments. This is an evolving matter that we may return to and, in that spirit, I ask that the amendments are not pressed to a Division.

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities

In the same spirit, I was not seeking to suggest that I had provided an exhaustive list. I was hoping that national security, the issue about international relations and maintaining public order, plus or minus the rule of law, might cover all the things that are not in the Terrorism Bill and that the Minister would rightly be concerned should be covered.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

We are comfortable with the new clauses, but I do not profess the degree of infallibility or futurology that will enable me to determine what will happen between now and when this and the other Bill are finally dispatched to Royal Assent.

In the short time that remains, I shall address some of the remaining poignant and carefully made remarks, while trying to ensure that only the new   clauses remain for this afternoon's sitting. The point made by my hon. Friend the Member for Walthamstow (Mr. Gerrard) is correct: the provisions deal with individuals. They do not cover, revoke or take away any rights of dependants with regard to nationality or right of abode.

I also agree with my hon. Friend about minors. If I jump about, I apologise. The provision just aligns nationality by registration with nationality by naturalisation. The issues pertaining to children and how we measure the good character of a child are the same on both. Given that, most of the measures and tests of good character are largely not currently germane for children in terms of naturalisation and the same will prevail in terms of registration. That is the answer.

It is clear that we will not shake down a four-year-old, looking for a bank account and their recent financial history. A four-year-old's name might be run through the police national computer, but I suspect that there would not be much of a hit. All the general measures of good character are not terribly germane to children, although the point was well made.

Our difficulty, as I said at the start, in aligning this, especially with another Bill going through at the same time, is the same point—perhaps this relates to consolidation of all these laws—as the one about ''thinks that'' versus ''satisfied that''. It makes sense when we are amending previous legislation to talk in terms of that previous legislation and its language, where appropriate. New clauses 4 and 6 amend the British Nationality Act 1981 and add new provisions to it. The reference throughout is to the Secretary of State being ''satisfied'', whereas new clause 5 amends the Immigration Act 1971, which talks about ''thinks''. We are clear—and the points were well made—that in substance they mean the same thing. There is not some coded difference between the two in terms of a nice little call-my-bluff exercise about what ''thinks'' means and what ''satisfies'' means. Where we are amending previous legislation and where it does not matter in substance, aligning with the language of the previous Acts makes sense, rather than introducing a new concept for the first time.

I cheerfully admit that in the context of a debate about schedule 3, which talks about repealing, among other things, the Immigration Act 1971, the British Nationality Act 1981, the Asylum and Immigration Act 1996, the Immigration and Asylum Act 1999, the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, a plea for some consolidation of language and the law over the next couple of years might be appropriate. That is the difficulty that we face. There is no substantial difference in what each of the things I mentioned does.

We cannot be accused of being overzealous in the implementation of the powers since 2002, because the straight answer to the question asked by the hon. Member for Woking about how many are deprived of British nationality under the 2002 powers is none. In some cases, that is because broader charges were made and they were a matter of criminal proceedings; in others, it is because other things happened and we   have not got that far. However, the absolute answer is none.

We think that things have moved on and it is appropriate to have the power that we are discussing in the locker—if nothing else—given the way circumstances are. That is why we are bringing it forward. The hon. Member for Woking is right, as I think I said in an intervention, that the right of appeal remains, save for that small point about forgery and its detection in relation to the secret route rather than otherwise.

There is no retrospective nature to any of the new clauses. They talk about an assessment of existing present behaviour. The assessment of existing behaviour and potential threat may be informed by previous behaviour. However, in the context of the Secretary of State's decision, we will not determine just on past behaviour. Such a decision must be made in the context of a particular threat now from which the public need protection. Individual past conduct and an assessment of the propensity to repeat it is part of the test. That must be clear.

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities

I understand what the Minister is saying, but I am now confused. I argued that section 4(4) of the 2002 Act contained safeguards against retrospectivity. If he is applying the same approach that has always been applied before, I should be grateful if he would let me know—not now, if he is not able to—why that was there and why he is not proposing to reproduce it in this provision.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office 10:15, 25 October 2005

I am happy to provide that clarification. I could do it now, but perhaps it will be better to do so in writing for the purposes of cross-referencing between the Acts. The new power is about it now being conducive to deprive—conducive, that is, at the point of decision, rather than in any retrospective sense. However, I must add the rider that past behaviour and a propensity to repeat it would come in.

Given that the appeal mechanisms are still in place and that the Secretary of State will have to defend his decisions on appeal, the decision to deprive will have to be based on fairly robust evidence. That excludes the point, raised by the hon. Member for Woking, that the decision might be based purely on uncorroborated evidence from a foreign state.

As Lord Filkin said, we shall not use the powers to export risk; we need to do far more than that. Last night, the Home Secretary was clear that there is an increasingly international dimension to our response to such matters, and that means co-operation. There is a right of appeal to the asylum and immigration tribunal on the right to abode, but there is a caveat that it might have to be heard instead at the Special Immigration Appeals Commission.

The point about the anomaly of those with dual nationality is well made and may be explored in the international domain. However, if citizens of some countries take British citizenship, they have to lose their existing citizenship, and we have to weigh that against our responsibilities on statelessness; the two   must run together. Not every country takes citizenship away because of the use of British citizenship, but I fully accept that some—in the subcontinent and elsewhere—do, and in those circumstances we have to invoke the point about statelessness. That others might determine at least part of our own control on this issue might seem perverse, but that is the way of it. The point about statelessness is very strong.

I accept that some of the matters that I have discussed are evolving, but I ask that the amendments be withdrawn.

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities

I should be grateful if the Minister would address the issue of the ratification of the 1997 convention and say whether there are any relevant implications. I should also like to check one other point, and I hope to catch your eye, Sir Nicholas, to intervene and do that.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

From memory, about a dozen countries have ratified, so the convention is by no means well on the way to full ratification. We have not yet ratified and we shall have to reflect, in the light of all the nationality legislation in this Bill, on whether it will be possible to do so. There may be a reservation in respect of our powers of deprivation. There may well be scope to ratify, but we shall have to look. Since 1997, there has been a recognition, Europe-wide—certainly on the part of an advisory body to the Council of Europe—that there is a fluidity to all these matters that may have gone beyond where the convention was in 1997.

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities

I see the Minister's point. Earlier, I made the point that there is no longer alignment with the convention. I should be grateful if the Minister would answer my fundamental question: is the intention in the clause to deprive people of their citizenship for acts that are not seriously prejudicial to the vital interests of the UK? There appears to be a mismatch and there is the implication of the wider test of not being conducive.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

That is a fair question, and my answer is that I do not think so. We shall come to the issue when we consider the refugee convention. On the hon. Gentleman's point about the assorted UN, rather than European, conventions, I have passed on material to Committee members that puts the more modern language of the UN on such matters into the wider context of terrorism. We have tried to reflect that in the new clauses. We are still with the spirit and the grain of the United Nations.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

The Minister has kindly dealt with most of the issues that I have raised. If there are some with which he has not dealt—I am not sure whether there are—will he drop me a note about them?

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

''Life is full of rich ironies'' was to be my closing line before we discuss our next amendments. However, if there are matters that I have not dealt with, I shall happily get back to the hon. Gentleman.

Amendment agreed to.

Schedule 3, as amended, agreed to.

Clause 47 ordered to stand part of the Bill.