Nationality and Borders Bill

Lord Paddick Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

[Baroness Falkner of Margravine (CB)]

My Lords, I did not have the opportunity to speak at Second Reading and I apologise for that. I declare my interests in the register and want to clarify that I am speaking in a personal capacity, and I will keep my intervention very brief. I agree with every speech that has been made today, but I particularly want to reference some points made by the noble Lord, Lord Horam.

I gave a speech at the Mauritian Foreign Ministry in 2019 in advance of the United Kingdom’s court case. While my speech was wide-ranging about international affairs and Britain’s role in the world generally, I was astonished by the strength feeling that the people present, mainly civil servants working in the Foreign Office, had about this issue. They were not all affected by the Chagossians’ claims—some were, some were not—but there was a national sense of disbelief that a law-abiding, rules-abiding great power in the world was behaving in this shabby manner towards a very small number of people.

I want to pick up on one point raised by the noble Baroness, Lady Lister, about the reason given by the Minister in the House of Commons as to why he would not support the amendment moved there. He said that it would overturn, and set a precedent over, years of British nationality law. My simple response to that is: the Government profess that we are increasingly bringing rights home, in terms of their assessment of the Human Rights Act and so on. But, as the noble Baroness knows very well, our courts are increasingly taking account of precedent with regard to Ministers’ intentions when they speak in both Houses of Parliament —and Parliament’s intentions when it decides to do whatever it decides to do.

So, if she has concerns similar to those expressed by the Minister in the House of Commons about setting precedent, all she would need to do when this Bill comes back to the Chamber on Report is to make it clear in her speech that she does not intend this Act—a humanitarian Act—to set a precedent in any other way. That is all she has do to reassure the House, and the courts will take account of that. I hope she will listen with great sympathy to the speeches on this matter across the House today, because that is what this small number of people deserve from us.

[Lord Paddick (LD)]

My Lords, as we have heard from my noble friend Lady Ludford, the Chagos Islanders were evicted by the UK Government in the late 1960s and early 1970s to make way for a US naval base, and they are still exiled from their homeland. I would say to the noble Lord, Lord Horam, there are two separate and very distinct issues here. The first, as the noble Lord quite rightly says, is giving the Chagos Islands back to the islanders, which is very much an issue for the Foreign Office. This amendment is about giving Chagos Islanders nationality, and that is very much the responsibility of the Home Office, not the Foreign Office. I would also say, in response to the last speaker and to the noble Lord, that century-long precedents are not necessarily good precedents.

One impact of the eviction has been to deprive descendants of their citizenship rights. The Chagos Islands remain a British Overseas Territory and, as we have heard, were it not for the eviction, they would have passed British Overseas Territories citizenship from generation to generation. In certain circumstances, they could have acquired entitlement to be registered as British citizens and, since 2002, they could have benefited from a general discretion from the Home Secretary to register as British citizens.

As the noble Baroness, Lady Lister of Burtersett, said, the Government’s objection in the other place does not hold water. The situation of the Chagos Islanders is unique and, while the other measures in this part of the Bill to address historic injustices are welcome, they are incomplete without the amendment of the noble Baroness, Lady Lister of Burtersett, which we wholeheartedly support. As the noble Baroness explained, it is narrow in scope, focused exclusively on the Chagos Islanders’ direct descendants and limited to a five-year window, either from the date the amendment comes into force or five years from when the eligible person turns 18. The Minister will have to do more than simply repeat the words of her colleague in the other place to convince noble Lords not to pursue this matter further on Report.

[Lord Rosser (Lab)]

I would like to express our support for this new clause. I wish to be clear about its objectives and will read from the Member’s explanatory statement:

“This amendment would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British overseas territories citizen. They may also register as a British citizen at the same time. Both applications would be free of charge. The application must be submitted within 5 years, or in the case of a minor born before the date of coming into force, before they reach 23 years old.”


As we have heard, the proposed new clause is intended to rectify a long-standing injustice which impacts descendants of the Chagos Islanders who were forcibly removed from British Indian Ocean territory in the 1960s. I too wish to express my appreciation and admiration of all those who have been raising and pursuing this issue over a number of years, not least my noble friend Lady Lister of Burtersett and the noble Baroness, Lady Whitaker—although I know they are not the only ones who have been working on behalf of the Chagos Islanders.

The issue has significant cross-party support, and the case for this change was powerfully made by a Member of the Minister’s own party in the Commons, Henry Smith MP, who was supported by Members across that House. The clause, as I have indicated, would extend the right to register for citizenship to the grandchildren and other descendants of this population, and it would, as has been pointed out, apply to only a small number of people.

In the Commons, the Minister’s response was not too encouraging, suggesting that this would be too significant a departure from existing law. However, he did say that the Government had heard the strong points made and would

“continue to consider what more we could do, particularly given the low uptake of the £40 million Foreign, Commonwealth and Development Office fund designed to assist this diaspora community, and we will certainly be keen to look at that and, potentially, at how it could allow those people to settle here in the UK.”—[Official Report, Commons, 7/12/21; col. 258.]

What consideration of this issue has since occurred across Government? What have Ministers settled on as to

“what more we could do”?

In recent years, we have raised significant concerns about this Government’s ongoing foreign and defence policy as regards the Chagos Islands. The Bill provides an opportunity for a distinct and limited change to our own law—one which would have a significant impact for those affected by half a century of injustice. This is surely a unique case. Frankly, we are not setting a precedent, which is what the Government seem to have been arguing to date.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I am not a lawyer either, but like my noble friend Lady Blower I have read the Bingham Centre’s report on this. I want to draw your Lordships’ attention to one aspect of it, which I do not think has been mentioned—I apologise if it has. There have been so many good speeches, particularly from the other side of the House, and across the House.

According to the report, the clause includes a retroactive power which would allow what was not lawful at the time to be made lawful now. The report suggests that this is retroactive lawmaking of the worst kind and particularly offends the rule of law. I think we should do away with the clause altogether. I have also read an article by Dominic Grieve, the much-respected former Conservative Attorney-General, on the “ConservativeHome” blog, which I must admit is not normally at the top of my daily reading list. It is an instructive piece. I will not read at length, because time is getting on, but he calls it,

“using legislation as a form of propaganda”

That is from a former Attorney-General and worth taking note.

I also draw attention to the fears that this is creating in the wider public. I have just had an email saying that over 100 organisations have written an open letter to the Prime Minister asking that this clause be removed. I hope that, when we come to Report, the House will remove this clause, which offends the rule of law.

[Lord Paddick (LD)]

My Lords, I am also not a lawyer, but we have Amendment 29 in this group and we join the noble Lord, Lord Anderson of Ipswich, in opposing the Question that Clause 9 stand part of the Bill. I accept that Clause 9 is about giving notice, but the amendments in the group go beyond that. The main concerns that this group addresses are the significant increase in the use of the power to deprive British citizens of their citizenship and the new provision of dispensing with the requirement that the Secretary of State requires notice to be given to a person deprived of citizenship.

There have been many detailed and compelling speeches and I do not intend to repeat them, but I will refer to the powerful and personal speech of the noble Baroness, Lady Warsi, about how this provision is affecting some British citizens. This is not going to affect some British citizens, like me, at all, but when you hear her personal recollections of the fear that this clause is generating and about the importance of the family attaché case—reinforced by the noble Baroness, Lady Mobarik—you understand that, although it may not be targeting particular communities within the cohort of British citizens, it is certainly causing distress among certain parts of that cohort.

To answer the question of the noble Lord, Lord Hunt of Wirral, on what we do with those people who wish to do us harm, I say that we prosecute them in the courts. We do not dump them on other countries.

Depriving someone of their citizenship is a very serious step to take and it is being taken with increasing regularity. To then do away with the requirement even to notify the subject is totally unacceptable. How can anyone take any steps to correct or challenge a decision that they know nothing about? The noble Lord, Lord Hunt, talked about how we notify the unnotifiable. Even in the case that he and other noble Lords referred to, which has been in the courts, the individuals were not uncontactable; they were not unnotifiable within the law. As the noble Lord, Lord Anderson of Ipswich, explained, notice could have been served on that individual, but the Home Office chose not to. In the figures he gave about how many times that has stopped the Home Office from serving notice on somebody of deprivation of nationality, the answer was zero. Clause 9 is not only unreasonable but, based on the facts, unnecessary as well.

With the increased use by the Secretary of State of the power to deprive a British citizen of their citizenship, we support Amendment 28 in the name of the noble Lord, Lord Anderson of Ipswich, which says that reviews of the use of the power should be annual and not every three years. We also agree with Amendment 27 in the name of the noble Lord, Lord Moylan, to restrict the circumstances in which someone can be deprived of their British citizenship. My noble friend Lady Hamwee will address our Amendment 29, which removes the power of the Secretary of State to directly deprive a British citizen of their citizenship, requiring an application to be made to a court.

We agree with the principle behind Amendments 32 and 33 in the name of the noble Baroness, Lady Bennett of Manor Castle, that the powers the Secretary of State has to deprive British citizens of their citizenship need to be curtailed and the process made more transparent, but we believe that our Amendment 29 achieves those objectives.

[Baroness Hamwee (LD)]

My Lords, I sense very well that the Committee would like to move on, so I will be much quicker than I had intended to be, but my noble friend Lord Paddick has asked me to speak to Amendment 29. Before I do so, I cannot resist rising to the challenge about my party’s involvement in the 2014 legislation. Perhaps after this debate I will explain to the noble Lord, Lord Moylan, the concessions gained in negotiation at that time in response to the agreement.

Amendment 29 would change the requirement from an assessment of conduciveness, if that is a word, to the public good to necessity in the interests of national security. I thank the Minister for her letter following Second Reading. I could not help thinking that the two examples she gave of where Clause 9 could apply probably were matters of national security. She says so for one example, and the other is where it is assessed to be

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

That must be very close to national security, unless the issue is a very long way away from the other country’s security, which would not be a good basis on which to move forward. The amendment would change the requirement of an order to allow for judicial involvement. These two examples actually show why the matter should go to a judge.

I am editing my speech as I go. Reference has been made to particular communities being especially affected by this provision. I say to the passengers on what, in my neck of the woods, is the 337 bus to Clapham that something does not need to be designed to have a particular effect. If it has that effect, it falls into the area we are concerned about.

Our amendment would also add to the exclusions a person holding British citizenship by birth, and where it would

“affect the best interests of a child in the family”.

That is looking at a fairly wide family. Use of the power would require an annual review, which I think is in the amendment from the noble Lord, Lord Anderson.

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[The Lord Bishop of Durham]

My Lords, I am trying to imagine how it could ever be in the best interests of a child born and raised in this country not to be given the right to be a citizen of this country. In what possible circumstances could we decide that it would be in the best interests of someone born and raised in this country to be decreed, at the age of 13 or 14, a citizen of another state? That is the situation. You could almost forget the 1961 convention, human rights and so on; we are simply talking about the best interests of the child. You can then back it up with all the international stuff on top. I support these amendments.

[Lord Paddick (LD)]

My Lords, Clause 10 talks about, to quote the Explanatory Notes,

“cases where parents have chosen not to register their child’s birth, which would have acquired their own nationality for their child, which means that the child can register as a British citizen under the statelessness provisions.”

I seriously question how many parents have such a detailed understanding of nationality law that they choose not to register their child’s birth in order to register their child later under statelessness provisions to give them British citizenship. That is just not credible. How many cases can the Minister cite where parents have deliberately not registered the nationality of their child in order for that child to get British citizenship under the statelessness provisions?

This strikes me as a cynical attempt to tighten the law, in a similar way to that in which the Bill tightens the provisions around modern slavery, to give the impression of being tough—bordering on xenophobic —on immigration, when there really is not a problem. It should not be part of the Bill. The power in this clause given to the Secretary of State to deny British citizenship to a child, unless she is satisfied that the child cannot reasonably acquire the nationality of its parents, needs to be qualified at the very least.

Amendment 30 in the name of the noble Lord, Lord Dubs, would give effect to the recommendation of the Joint Committee on Human Rights

“to ensure that British citizenship is only withheld”

from a stateless child born in the UK

“where the nationality of a parent is available to the child immediately”,

without any legal or administrative hurdles. We will support this amendment if this clause stands part of the Bill.

These are decisions being taken by parents and the Secretary of State about an innocent child who has no influence over what is being decided about their future—decisions about something as fundamental as citizenship. For that reason alone, we strongly support Amendment 31: that the best interests of the stateless child born in the UK must be central to any decision whether to grant or refuse British citizenship.

This is what we have come to: seeking to deny stateless children born in the UK British citizenship. As I said on a previous group, British citizenship has benefits to society as well as to the individual concerned. This is not just about the best interests of the child, although it should be; it is about what is in the best interests of society. Keeping children stateless as they grow into adults surely increases their chance of being radicalised and becoming a threat to society. On the last group, the Minister kept talking about high-harm individuals. All the evidence points to one of the most important factors in radicalisation being people not feeling part of society or of this country. Keeping a child stateless surely will increase the danger of that person growing into a terrorist.

[Lord Rosser (Lab)]

My Lords, my name has been added to the proposal to oppose Clause 10 standing part of the Bill, which was tabled by the noble Lord, Lord Paddick. As has been said, Clause 10 is intended to disentitle stateless children in the UK from their statutory right to British citizenship. It proposes amending and restricting a vital safeguard in British nationality law that prevents and reduces childhood statelessness. Under our international obligations, we have safeguards that mean that a child who was born in the UK and has always been stateless can acquire British citizenship after five years of residing here.

Through Clause 10, the Government now propose to restrict and amend that obligation. Clause 10 requires the Secretary of State to be satisfied that a child was unable to acquire another nationality before being permitted to register as a British citizen. That creates an additional and unjustified hurdle to stateless children’s registration as British citizens, which could be difficult for a child or those acting on their behalf to prove.

Rather than helping such children attain citizenship, the Government are intent on putting up more barriers and making it more difficult for children under 18 to be registered. They seem to want to try to deny citizenship, particularly citizenship of the place where the child was born and lives—in fact, the only place they know. No doubt the Government will explain what substantial wrong they consider this clause addresses and what hard evidence there is that that wrong is actually significant, as opposed to it being claimed as such.

Clause 10 can only be highly damaging to a child’s personal development and their feelings of security and belonging, with this exclusion and potential alienation being inflicted in their formative years. The noble Lord, Lord Paddick, referred to the serious implications that can have. There has been no assessment made by the Government of the impact this proposal will have on those children affected, which suggests that this issue does not trouble the Government. As my noble friend Lady Lister of Burtersett said, how can this be in the best interests of the child? This issue is addressed in Amendment 31, reflecting a JCHR recommendation.

In the Commons, we supported an amendment to Clause 10 which sought to ensure that the Government act in compliance with Article 1 of the 1961 UN Convention on the Reduction of Statelessness, the Government having failed to protect the existing safeguards, which are in line with international law, in this Bill. The amendment altered Clause 10, so that British citizenship was withheld from a stateless child born in the UK only when a parent’s nationality was available to the child immediately, without any legal or administrative hurdles. That is as per Amendment 30, moved by my noble friend Lord Dubs, which also reflects a JCHR recommendation.

I am probably being overoptimistic in hoping that there will be a positive government reply to this stand part debate. At the very least, if my fears are justified and we do not get a positive reply from our point of view, I hope that we will be told what the hard evidence is that Clause 10 actually addresses a significant wrong, rather than one being claimed as such.

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I hope that, with those explanations, noble Lords will be happy to withdraw and not press their amendments to Clause 10.

[Lord Paddick (LD)]

My Lords, can the Minister clarify something? She gave us some figures; I did not have a chance to write to them down. She talked about the figures peaking at, I think, somewhere around 1,700 cases. Is that the number of stateless children born in the UK who are granted British citizenship, or are they cases where parents deliberately chose not to register their child’s birth in order to take advantage of the system?

[Baroness Williams of Trafford (Con)]

I assume that it is the latter, but I will write to the noble Lord with the details of the figures I have here. In particular, I will give him more detail about the countries from which these cases derive.