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Nationality, Immigration and Asylum Bill

8.33 p.m.

House again in Committee on Clause 4.

Lord Dholakia moved Amendment No. 59:

The noble Lord said: This amendment is grouped with Amendments Nos. 63, 67 and 73. I refer to the report of the Joint Committee on Human Rights and, in particular, to paragraphs 27, 28 and 29.

I turn to paragraph 27. The committee reported that it was concerned that there was no requirement for the Secretary of State to show that there were objectively reasonable grounds for depriving someone of British citizenship. That appeared to put at risk a person's legal status without adequate safeguards against arbitrariness.

In reply, the Home Office referred to a long history of allowing the Secretary of State to deprive people of British nationality on the basis of a subjective view. It argued that it was entirely appropriate that the Home Secretary should be permitted to decide whether a person had done something seriously prejudicial to the vital interest of the United Kingdom or a British overseas territory.

The committee said at paragraph 29 that it could not agree with that line of argument. It recognised that the Secretary of State was likely to be in a particularly good position to form a judgment and that it may, in consequence, be entitled to considerable respect. However, it considered that the Secretary of State should be required to justify the decision by showing that there were reasonable grounds for it.

The conclusion of the Joint Committee is interesting. It said:

    "As a matter of general principle, we consider that it is a far more effective guarantee against arbitrariness, and a better way of assuring good administrative decision-making (as well as being far more compatible with the rule of law which underpins human rights), to require public authorities to justify the deprivation of a

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    person's status to a standard of reasonableness, than to require the person subject to the decision to establish that it is wholly unreasonable".

In taking into account the arguments of the committee, I believe that we need to insert the words "on reasonable grounds" into Clause 4, as Amendment No. 59 seeks to do. Similarly, Amendment No. 63 seeks to insert those words into Clause 4 at page 3, line 8. Amendment No. 67 seeks to leave out the words "he is satisfied" and insert "there is reason to believe" in Clause 4 at page 3, line 13. Finally, Amendment No. 73 seeks to insert in Clause 4 after the word "satisfied" the words "on reasonable grounds" at page 3, line 26.

Those are the requirements which will satisfy the Human Rights Joint Committee. This matter has not been discussed by the House of Commons. Therefore, I hope that the Committee will agree to the amendment and that the Minister will consider this request sympathetically. I beg to move.

Lord Kingsland: I believe that, to some extent, the debate on this amendment runs on from the debate on the previous group of amendments. Therefore, I do not believe that it is necessary to go into all the arguments that were deployed immediately before the dinner adjournment.

I share the noble Lord's approach to the text of the clause. In my submission, it is appropriate to require the Secretary of State to justify his or her decisions on reasonable grounds. That will have the effect of placing the initial burden of proof on the Secretary of State. As things stand, the noble Lord the Minister is correct in saying that the Secretary of State will have to give reasons. But, in these circumstances, the onus will be on the defendant to judicially review, in some circumstances, or question in the course of appeal, in others, their reasonableness.

In this context, "reasonableness" means something different from the word "reasonable" in the tabled amendment. Here, "reasonableness" is an expression used in the context of the famous Wednesbury case. Has the Secretary of State behaved within a range of conduct which is regarded as reasonable by the courts? That is a far lighter test than that which the noble Lord, Lord Dholakia, wishes to insert into the Bill, and I respectfully support his approach. Given the subjective nature of the Secretary of State's power, it will be extremely difficult to use, successfully, the Wednesbury weapon.

Lord Avebury: I rise to quote briefly from the report of the Joint Committee on Human Rights, to which my noble friend referred. For the sake of those outside this Chamber who may read the debate and not understand what Wednesbury entails, it is important to spell it out, as the Select Committee did. The committee stated that to prove that a decision was unreasonable within the terms of Wednesbury means,

    "that it was so unreasonable that no reasonable Secretary of State, properly understanding the relevant facts and applicable law, could have come to that conclusion".

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That is a difficult hurdle for anyone to surmount in challenging a decision of the Secretary of State. The insertion of the words proposed by my noble friend would redress the balance.

Lord Filkin: As the noble Lord, Lord Kingsland, said, this runs on from our important and challenging debate before the dinner break. I do not expect that any of us is likely to substantially shift our opinions, even after a good dinner. Nevertheless, I shall seek to explain why the Government believe that the amendments are unnecessary.

As we have indicated previously, and as we informed the noble Lord, Lord Lester, in response to the JCHR report, we believe there are strong grounds for the Secretary of State having the power to make the initial judgment, which we believe has to be essentially subjective in the light of both the evidence before him and his judgment about the risk to the state, which is the second element which is germane to this issue.

There is provision elsewhere in Clause 4 for the reasonableness of the Secretary of State's position to be tested on appeal. In any event, the enforceable principles of administrative law import a requirement that the discretion be exercised reasonably, as has been indicated.

The fundamental point is that the appeal is not limited to judicial review, nor is it limited to the Wednesbury test; it is broader. The statutory appeal is a full appeal on the merits as well as on the law. Therefore, it is not, I suggest, simply as the noble Lord, Lord Kingsland, or perhaps the noble Lord, Lord Dholakia, suggested: that one had to overcome the quite severe burden of demonstrating that it was an act that no reasonable Secretary of State would have taken, but it is level on the merits of the case.

As presently defined, Clause 4 would empower the Secretary of State to withdraw citizenship by deprivation order if he is satisfied as to certain matters. As I have indicated, we believe that it is only the Secretary of State who is in a position to make that judgment.

As regards the ability to deprive someone of the basis of fraudulently obtained naturalisation or registration as a citizen, again the Secretary of State must be satisfied that the registration or naturalisation has been obtained by fraud before he can deprive.

Amendment No. 67 suggests that potential statelessness should be a matter capable of objective determination. But the reality is that there is endless scope for discussion, debate or disagreement over whether a person has a claim to another nationality. That has been our experience in implementing the British Nationality (Hong Kong) Act 1997, Section 1 of which confers in certain circumstances an entitlement to registration as a British citizen on a British overseas citizen who,

    "would have been a stateless person if he had not been such a citizen".

Requiring the Secretary of State to prove possession of an alternative citizenship to a reasonably objective standard before proceeding under proposed Section 40(2) would be impractical.

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The fact that the Bill would facilitate deprivation of nationality on the subjective view of the Secretary of State does not mean that it would be exercised arbitrarily. The Bill requires him to give written reasons, as referred to by the noble Lord, Lord Kingsland, for his decision, and the right of appeal for which we provide would enable a person to bring before an independent body any issue bearing on either the legality or the merits of the decision in order for it to be sustained on appeal. It would not be a case of the Secretary of State simply saying that he was satisfied without explaining why.

The appeals provided for in Clause 4 are full appeals, as I have signalled, where the appellate body could review both the legality and the merits of the decision. It would not, as the JCHR suggested in its report, be limited to considering whether the Secretary of State had acted wholly unreasonably.

I should add finally that a requirement for the Secretary of State to be "satisfied" that certain pre-conditions are met presently occurs at various points in the 1981 Act without the express qualification that his satisfaction would be "on reasonable grounds". We believe, therefore, that the proposed amendments are unnecessary, particularly because of the opportunity to exercise a full appeal on the merits if so chosen.

Lord Dholakia: I thank the Minister for that explanation. I shall obviously study his comments carefully. It may be appropriate to consult the members of the Joint Committee on Human Rights which came to that conclusion, as to whether the explanation offered by the Minister was available to them. The committee seemed to reach a particular decision. It may be necessary to reflect on that decision and come back on Report. I am sure that the arguments on Clause 5 will continue for a long time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

The Deputy Chairman of Committees (Baroness Gould of Potternewton): Before calling Amendment No. 60, I must inform the Committee that if that amendment is agreed to, I cannot call Amendments Nos. 61 or 62.

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