HOUSE OF LORDS SESSION 2001 02 6th REPORT SELECT COMMITTEE ON THE CONSTITUTION NATIONALITY, IMMIGRATION AND ASYLUM BILL Ordered to be printed 17 June 2002 PUBLISHED BY AUTHORITY OF THE HOUSE OF LORDS LONDON THE STATIONERY OFFICE LIMITED HL Paper 129 [price]
SIXTH REPORT 17 JUNE 2002 By the Select Committee appointed to examine the constitutional implications of all public bills coming before the House 1 ; and to keep under review the operation of the constitution. ORDERED TO REPORT NATIONALITY, IMMIGRATION AND ASYLUM BILL 1. A bill has been brought to this House to make provision about nationality, immigration and asylum; to create offences in connection with international traffic in prostitution; to make provision about international projects connected with migration; and for connected purposes. 2. We consider that aspects of the bill raise questions of principle about a principal part of the constitution, namely citizenship. Our correspondence on this with the then Minister of State at the Home Office (Lord Rooker) is appended. 3. Currently, section 40 of the British Nationality Act 1981 empowers the Secretary of State to deprive of British citizenship any person who became a British citizen by registration, as therein defined, or naturalisation. There is no provision for depriving a natural born Briton of citizenship. 4. Clause 4 of the Nationality, Immigration and Asylum Bill, which applies to all British citizens, provides among other things that any British citizen, born, registered or naturalised, may be deprived of citizenship if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of the United Kingdom. The foregoing provision is somewhat tempered by a further provision that no person may be deprived of citizenship on the above ground if the Secretary of State is satisfied that the order would make a person stateless. This would no doubt remove the potential effect on most British born citizens but could affect such persons who had dual nationality. This is the first time such a proposal has been made. 5. We draw Clause 4 to the attention of the House as raising a question of principle about a principal part of the constitution. 6. In our First Report we noted that, when reporting on bills, we would not attempt to make recommendations on their policy merits but would provide an analysis of the constitutional issues, drawing those of significance to the attention of the House. An analysis of the issues involved is provided in House of Commons Library Research Paper 02/25 The Nationality, Immigration and Asylum Bill: Nationality and Citizenship. The issues surrounding Clause 4 are set out on pp 31-36 of that research paper. 1 Our approach to this task is set out in our First Report, Session 2001-02, HL Paper 11, Chapter 3.
4 SIXTH REPORT FROM THE APPENDIX 1 Letter from the Lord Norton of Louth, Chairman of the Committee, to the Lord Rooker, Minister of State, Home Office The Constitution Committee, which I chair, have been appointed by the House of Lords to examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution. Part I of the Nationality, Immigration and Asylum Bill appears to raise important questions of principle about a principal part of the constitution, namely the nature of citizenship. We have some questions about this, to which we would be grateful for a written reply by 15 May, to allow the Committee to consider your response at their meeting on 22 May. Clause 1(2) [Clause 1(3) in HL Bill 89], by inserting two new clauses after section 41(1)(b) of the British Nationality Act 1981, gives the Secretary of State power to make regulations (by statutory instrument subject to annulment) (ba) for determining whether a person has sufficient knowledge of a language for the purpose of an application for naturalisation; (bb) for determining whether a person has sufficient knowledge about life in the United Kingdom for the purpose of an application for naturalisation. Such powers are significant enough to be able to affect the nature of citizenship. While we accept that the Secretary of State already has to be satisfied that an applicant for citizenship had a sufficient knowledge of the English, Welsh or Scottish Gaelic language 2 the power in (bb) is widely drawn and subject to little scrutiny. Are you able to expand on the Secretary of State s intentions in using these powers? Should it be for Parliament to give the Secretary of State further guidance on the face of the statute as to the tests of sufficient knowledge for (ba) and (bb), rather than leaving this to the discretion of the Secretary of State? We will be drawing our concern about the level of scrutiny to the attention of the Delegated Powers Committee. Clause 4, by substituting a new section 40 for section 40 of the British Nationality Act 1981, has the effect of empowering the Secretary of State to deprive a person born a British Citizen of his citizenship. Section 40 of the British Nationality Act 1981 at present allows the Secretary of State to deprive of their British Citizenship only those who have become British Citizens by registration or naturalisation. We are aware that this power exists in other states and that, under proposed new section 40(4), the Secretary of State may not make such an order if he thinks that the order would make a person stateless. We would nonetheless like to ask why this innovative power is justified. Given the provisions of Schedule 1, new Schedule 5, para 1, of the Bill (form of citizenship oath and pledge), while we note the provisions of proposed new section 40(2), why does clause 4 propose to repeal section 40(3) of the Act, particularly (a) and (b)? 25 April 2002 2 British Nationality Act 1981, Sch I para 1(1)(c).
SELECT COMMITTEE ON THE CONSTITUTION 5 APPENDIX 2 Reply from the Lord Rooker, Minister of State, Home Office Thank you for your letter of 25 April on behalf of the Constitution Committee, in which you expressed concern about the some of the provisions contained in Clause 1 of the Nationality, Immigration and Asylum Bill. I hope that by explaining a little more about the thinking behind these provisions I may be able to allay some of your fears. First and foremost, it is likely that these provisions will influence the nature of citizenship, but we hope only in a positive way. At present, acquiring national status is described in the White Paper Secure Borders, Safe Haven as a low key and bureaucratic process. We want to change that, so that people feel that it is an important and beneficial life step. We appreciate that some people may find these measures controversial, but the measures outlined in the White Paper are just a small part of a much wider programme of work which is intended to facilitate the integration of people settling here and to improve the sense of social cohesion between the many ethnic groups represented in the UK. As you say, the Bill provisions requiring nationality applicants to have a knowledge of English (or Welsh or Scottish Gaelic), are not new. We are simply seeking to formalise something which exists already and to ensure that linguistic skills are tested consistently. I acknowledge, of course, that the provisions of Clause 1 of the Bill have deliberately been quite widely drawn. This is because we are still at quite an early stage in developing our thinking about language and education for citizenship. We want to consult experts in the fields of language tuition and citizenship so that we can flesh out the initial work that has been done. A Project Plan is being devised jointly with DfES to take this work forward. We feel it is better to consult experts, interest groups and others, at this stage, rather than have Parliament impose something on the face of the Statute which has not been fully thought through. The consultation process is, we feel, particularly important, bearing in mind the tight timetable for this particular piece of legislation. The detail will therefore be come more apparent once Regulations are drafted. If it will help, though, I can outline some of our current thinking. In respect of language testing, we want a system in place that brings practical benefits to nationality applicants and indeed to some people in categories leading to settlement, such as spouses. Research conducted by the Home Office reinforces the instinctive view that an inability to speak the language of the country in which you find yourself gives a great feeling of isolation. This is something we want to avoid, so we are aiming to provide courses free of charge to nationality applicants and to some people in categories leading to settlement who might benefit from them. Further research suggests that having language skills improves your prospects of getting a job by something in the region of 20%. We do not want testing to be onerous, so at this stage we do not envisage people having to work towards a particular, recognised qualification (although possession of such a qualification would exempt someone from attending a language course). We will probably concentrate on speaking and listening skills, and we are looking at the possibility of continuous assessment or the use of simple language screening tools to assess ability. The requirement that people seeking nationality should learn something about life in Britain is of course new. You may be aware that lessons in citizenship will be introduced in schools from September and there are a number of other initiatives, across Government, which are intended to promote greater social cohesion. The Bill provisions for nationality applicants are not intended to stifle any sense of national, regional or cultural identity. Common citizenship is not about cultural uniformity. The Government welcomes the richness of the cultural diversity which immigrants have brought to the UK. Through education for citizenship, we hope people will develop a greater understanding of the diversity of background, culture and faiths that is the hallmark of Britain in the 21 st century. We need to continue tackling discrimination in all aspects of society, whilst opening up a constructive debate on a shared vision for a Britain which values and celebrates diversity. We are therefore drawing together a working group of experts in the field of citizenship and social cohesion, which will be tasked with advising on an appropriate citizenship curriculum. It is likely that topics to be covered will include sources of help and information, such as what Citizens Advice Centres and local VSOs can do, sources of information, use of the telephone, the media etc. Further topics might be how to get a job, the National Insurance number and so on. Immediate everyday needs, including housing, utilities, banks and post offices and getting children
6 SIXTH REPORT FROM THE into a school would need to be covered, as would the Health Service, the GP and hospital facilities. Something on knowing the law might be useful, including what the police can and cannot do, as would a session on national customs and the etiquette of everyday life, including what makes for good neighbours. New citizens might also find something on national holidays and the meaning and observance of the major Faith days quite valuable. We also envisage a separate module on British National Institutions, which would cover the party system and the roles of the local MP, pressure groups and voluntary bodies. This would also be an opportunity to examine the different national cultures and institutions of the United Kingdom: England, Northern Ireland, Scotland and Wales and the main ethnic groups, and to work on the concept of shared common values. Once again, we do not want testing to be onerous; David Blunkett has consistently said that he wants a light touch testing regime following a programme which will be of practical benefit to applicants. We need to strike the appropriate balance between having something meaningful, yet which applicants do not find off-putting. Can I also take this opportunity to flag up the fact that the Government hopes to introduce an amendment to the Bill which will waive the requirement concerning knowledge of life in the UK in respect of people who are unable to fulfil this through age or infirmity. This will serve to correct an anomaly; such a waiver already exists in respect of the language requirement. Finally, can I deal with your concerns about the proposed Clause 4, which amends the deprivation provisions contained in Section 40 of the British Nationality Act. By introducing these new provisions we are attempting to rectify some anomalies. The amendments will remove the present distinctions between the various categories of British national and between those who have acquired nationality by registration or naturalisation and those who acquired it automatically at birth. We see no good reason for maintaining these distinctions, particularly where the actions of the person concerned have caused significant harm to the vital interests of the United Kingdom or a British overseas territory. The removal of British nationality may prevent or deter the individual from engaging in such activity in the future. Moreover, the effect of the present distinction between natural-born and naturalised citizens is to devalue naturalisation by marking out those who became citizens by that means as different and perhaps even inferior. This runs counter to the positive attitude to citizenship that we are seeking to engender in society as a whole and in new citizens in particular. It would also be inconsistent with Article 7 of the European Convention on Nationality, which we hope to ratify in due course. Your final paragraph refers to the proposed repeal of Section 40(3) of the British Nationality Act 1981. As you know, this Section enables the deprivation of citizenship on the grounds of disloyalty or disaffection toward Her Majesty or when, during wartime, someone has unlawfully traded or communicated with an enemy. Ever since the British Nationality and Status of Aliens Act 1914 our law has made provision for citizenship conferred by administrative grant to be withdrawn where the person concerned is found subsequently to have harmed, or posed a threat to, vital State interests. In our view, however, the expressions used in the current legislation have become outdated and fail to reflect the types of activity that might threaten our democratic institutions and way of life. September 11 th provided an horrific illustration of the sort of threat we have in mind. The wording of proposed s.40(2) is drawn from Article 8 of the 1961 UN Convention on the Reduction of Statelessness. The same wording can also be found in Article 7 of the European Convention on Nationality. The Explanatory Report on the European Convention observes that such conduct notably includes treason and other activities directed against the vital interests of the State concerned (for example work for a foreign secret service) but would not include criminal offences of a general nature, however serious they might be. That is the meaning we shall apply. A new right of appeal against deprivation will replace the existing inquiry procedure. 16 May 2002
SELECT COMMITTEE ON THE CONSTITUTION 7 APPENDIX 3 Extract from the European Convention on Nationality, Strasbourg, 6 September 1997 Chapter III Rules relating to nationality ARTICLE 6 ACQUISITION OF NATIONALITY 1. Each State Party shall provide in its internal law for its nationality to be acquired ex lege by the following persons: a. children one of whose parents possesses, at the time of the birth of these children, the nationality of that State Party, subject to any exceptions which may be provided for by its internal law as regards children born abroad. With respect to children whose parenthood is established by recognition, court order or similar procedures, each State Party may provide that the child acquires its nationality following the procedure determined by its internal law; b. foundlings found in its territory who would otherwise be stateless. 2. Each State Party shall provide in its internal law for its nationality to be acquired by children born on its territory who do not acquire at birth another nationality. Such nationality shall be granted: a. at birth ex lege; or b. subsequently, to children who remained stateless, upon an application being lodged with the appropriate authority, by or on behalf of the child concerned, in the manner prescribed by the internal law of the State Party. Such an application may be made subject to the lawful and habitual residence on its territory for a period not exceeding five years immediately preceding the lodging of the application. 3. Each State Party shall provide in its internal law for the possibility of naturalisation of persons lawfully and habitually resident on its territory. In establishing the conditions for naturalisation, it shall not provide for a period of residence exceeding ten years before the lodging of an application. 4. Each State Party shall facilitate in its internal law the acquisition of its nationality for the following persons: a. spouses of its nationals; b. children of one of its nationals, falling under the exception of Article 6, paragraph 1, subparagraph a; c. children one of whose parents acquires or has acquired its nationality; d. children adopted by one of its nationals; e. persons who were born on its territory and reside there lawfully and habitually; f. persons who are lawfully and habitually resident on its territory for a period of time beginning before the age of 18, that period to be determined by the internal law of the State Party concerned; g. stateless persons and recognised refugees lawfully and habitually resident on its territory. ARTICLE 7 LOSS OF NATIONALITY EX LEGE OR AT THE INITIATIVE OF A STATE PARTY 1. A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases: a. voluntary acquisition of another nationality; b. acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant; c. voluntary service in a foreign military force; d. conduct seriously prejudicial to the vital interests of the State Party; e. lack of a genuine link between the State Party and a national habitually residing abroad;
8 SIXTH REPORT FROM THE SELECT COMMITTEE ON THE CONSTITUTION f. where it is established during the minority of a child that the preconditions laid down by internal law which led to the ex lege acquisition of the nationality of the State Party are no longer fulfilled; g. adoption of a child if the child acquires or possesses the foreign nationality of one or both of the adopting parents. 2. A State Party may provide for the loss of its nationality by children whose parents lose that nationality except in cases covered by sub-paragraphs c and d of paragraph 1. However, children shall not lose that nationality if one of their parents retains it. 3. A State Party may not provide in its internal law for the loss of its nationality under paragraphs 1 and 2 of this article if the person concerned would thereby become stateless, with the exception of the cases mentioned in paragraph 1, sub-paragraph b, of this article. ARTICLE 8 LOSS OF NATIONALITY AT THE INITIATIVE OF THE INDIVIDUAL 1. Each State Party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless. 2. However, a State Party may provide in its internal law that renunciation may be effected only by nationals who are habitually resident abroad. ARTICLE 9 RECOVERY OF NATIONALITY Each State Party shall facilitate, in the cases and under the conditions provided for by its internal law, the recovery of its nationality by former nationals who are lawfully and habitually resident on its territory.