My Lords, I apologise to the right reverend Prelate the Bishop of Chelmsford for my lack of control over my new varifocals, and to your Lordships for entering the debate at this late stage. I have been listening to the debate in the context of my concerns about the majority judgments in the D4 case, which has already been mentioned. I read my noble friend Lord Anderson’s amendments and listened with enormous care to his very clear—indeed, brilliant—opening. I support his amendments. My view is that they go further than is absolutely necessary in terms of proportionality between the duties and rights of citizens and the setting of safeguards to ensure that this equation is well balanced. Overbalancing in favour of protections is a good fault in the circumstances, hence my declared support for my noble friend’s amendments.
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I will just say a word in relation to Amendment 22, which I am afraid I find rather befuddling. I am befuddled by the notion that somebody should be able to lose their citizenship for committing an offence of fraud but not for being a terrorist treacherous to and betraying their own country. That is absolutely what that amendment says. It may not have been intended as such, but that is how it reads. I suggest that, far from people with dual nationality being second-class citizens, they are advantaged citizens. We have been talking a good deal about oligarchs in recent days, and I can tell the noble Baroness who tabled Amendment 22
that expensive law firms have been expending large sums of oligarchs’ money on obtaining dual nationality so that those people can have the advantage of being able to hedge their bets in more than one country. I am not a dual national, but if I were a citizen of Ireland or the United States, for example, I would consider it a privilege and an advantage, not some kind of second-class citizenship.
I turn to the principle behind this. I listened with interest to my noble friend Lord Macdonald of River Glaven, who is a distinguished former Director of Public Prosecutions. There seems to be some kind of presumption among some commentators, and possibly one or two Members of your Lordships’ House, that the Home Secretary will deprive everyone of their citizenship if they have gone to Syria and married a terrorist, simply because they have done that. But as my noble friend Lord Macdonald will know, there are many cases in which the Director of Public Prosecutions—he did this with great distinction—makes a decision on public interest grounds as to whether a case should be pursued. In this situation, particularly in the light of the amendments by my noble friend Lord Anderson, the Home Secretary would have exactly that kind of discretion and would not make a decision in every single case. Under the architecture that my noble friend Lord Anderson has set out, if a decision was made and was disproportionate, on judicial review principles it would be subject—as he said very clearly—to come before the Special Immigration Appeals Commission. So this is not simply lumping a large number of people into being deprived of citizenship. We can assume, at least in our country, that we do not operate like Mr Putin and that in fact rational decisions are taken and are tested in a rational way before the courts.
I have three examples of cases in which it is proportionate not to serve notice, even if there is some knowledge of whereabouts. I think I should state them briefly for the record. First, let us take a case relating to new subsection (5A)(c)(i) of Section 40 of the British Nationality Act 1981, on national security grounds. If the Home Office holds sensitive intelligence that details an individual’s whereabouts so that they could cause notice to be served on that person, but the sensitive source of the intelligence means they cannot use it without revealing and risking the life of the sensitive source, and in so doing causing damage to national security, that is a clear example where non-service to file is entirely justified—particularly with my noble friend Lord Anderson’s architecture, as I have called it.
The second example relates to new subsection (5A)(c)(ii), inserted by Clause 9, relating to
“the interests of the relationship between the United Kingdom and another country”.
Let us suppose the Home Office holds sensitive intelligence obtained from a third country, as to an individual’s address or whereabouts such that the Home Office could—if it relied upon this intelligence—cause notice to be served on the person. Such intelligence sometimes comes from countries with which we do not have close intelligence relationships for particular reasons. So, using the address that has been given may not cause damage to our national security, but it might be damaging to the national security interests of the third country and even cause damage to the UK’s relationship with
that country if the Home Office relied upon it. Without that intelligence, the Home Office would not know the individual’s whereabouts in order to effect service. Clearly, that is a situation in which it is reasonable not to serve.
My third example, which relates to new subsection (5A)(c)(iii)—not in the public interest—inserted by Clause 9, is an example where the Home Office holds an address for an individual that, if relied upon, could be used to cause notice to be served on the individual, but there is no functioning postal system where the individual is living. There is, however, the prospect of delivering the notice to the address via a courier. But doing so would expose the courier to risk—either due to prevailing circumstances in the region or due to the threat posed by the individual to be served if the courier encounters them. This is a very real example. I have seen this illustrated in a country—which I will not name in this debate—where civil servants doing other functions would be in a position to deliver such notices. Surely it would not be right for the Home Office to expose the courier to such risk and, indeed, to danger to their life.
So I come back to the balance between rights and duties. Most of the cohort we are discussing absolutely know the risk they take if they go and fight as terrorists, betray this country and put it in danger. Most of those people—not all, and I refer to what I said at the beginning about the Home Secretary’s discretion—will know if they are able to have the nationality of another country. If they do, those are the cases in which the Home Office should, in my view, be allowed to make such orders, and it would be foolish of us to stand in the way of that. Indeed, in making such orders, that is entirely proportionate to a judgment between the duties of the citizen not to betray their country and the rights of the citizen not, in certain circumstances, to have their citizenship removed.
Removing Clause 9 from the Bill leaves the unattractive proposition that, even where an alternative nationality is available, individuals should have a free run to betray this country and be terrorists against this country’s interests. I am against that, and I am absolutely certain that most reasonable people are against that.