The keys are in the steam roller and the Theresa May is revving up the engine
There is a remarkable series of events taking place in the Chamber of the House of Commons today. Home Secretary Theresa May is moving an incredibly controversial amendment to the Immigration Bill that most MPs have only seen a few hours ago.
It’s New Clause 18. I’ve hardly had time to understand the effect of it but I think it is the following:
1. The proposal massively increases the scope of executive discretion of the Home Sec in deciding to strip a British national of his citizenship. A British person may now be stripped even if the consequence of the deprivation order is that he will become ‘stateless.’ This reverses a historic ban. The limits in the new section, that the citizen must have been naturalised and it must ‘seriously prejudice the vital interests of the UK’ in the opinion of the Home Sec almost certainly come from the UK being a signatory to 2 UN Treaties on Statelessness i.e. they are not a choice.
2. Use of the power is ‘on the up’. Labour used it 5 times in 7 years. The Coalition government have used it 37 times in the past 3 years, according to a study by The Bureau of Investigative Journalism. I sincerely hope the amendment should not get through on the ‘say so’ of the government that it will only be used in a tiny number of cases. This sounds suspiciously like the assurances we’ve had on GCHQ practices: that they are lawful and innocent people have ‘nothing to fear’. You only have to look at the reason legal opinion from Jemima Stratford QC to know how this argument doesn’t stand much scrutiny.
3. There is no due, lawful process or scrutiny attaching to use of this power on British citizens. It’s simply the Home Secretary’s decision. She can remove citizenship without judicial approval and it takes effect immediately. There isn’t any published guidance on use of the s40 power (deprivation of citizenship power) Also, the amendment is worded so as to be ‘retroactive’. This means the Home Secretary may consider anything she is told has taken place at any time, however long ago. She is also dependent on information/data provided to her by government officials from the UK or presumably the US. There are no rules about what sort or source of evidence it may be, and the evidence is not subject to any form of independent scrutiny.
4. Many have expressed concern that use of s40 is linked to the so-called US ‘global war on terror.’ A British person stripped of their citizenship becomes much more vulnerable abroad. That’s why human rights lawyers have described the effect of a s40 order as ‘medieval exile.’ It is worth recalling cases in the UK that reveal British people stripped of their citizenship have been targeted by drones (2 cases, Sakr and Berjawi) and unlawfully rendered to the US (Hashi). There are other rights of British citizens which should get a look in, including the age old right to a fair trial, and the protection of citizens from the unlawful conduct of third party states.
5. Overall this looks like a knee jerk reaction after being told off by the Supreme Court in the citizenship stripping case of Al-Jedda at the end of last year. In this case the Supreme Court found the Home Secretary had used her s40 powers unlawfully.
Basically, this is a terrible day for Parliament. We’re being asked to steam roll a piece of legislation after only a few hours' notice, without having any time to consider the effect of it and suggest alternatives or safeguards.
The Clause, if you are interested:
To move the following Clause:—
In section 40 of the British Nationality Act 1981 (deprivation of citizenship), after
subsection (4) insert—
But that does not prevent the Secretary of State from making an order
under subsection (2) to deprive a person of a citizenship status if—
the citizenship status results from the person’s naturalisation,
the Secretary of State is satisfied that the deprivation is
conducive to the public good because the person, while having
that citizenship status, has conducted him or herself in a manner
which is seriously prejudicial to the vital interests of the United
Kingdom, any of the Islands, or any British overseas territory.”
In deciding whether to make an order under subsection (2) of section 40 of the
British Nationality Act 1981 in a case which falls within subsection (4A) of that
Act, the Secretary of State may take account of the manner in which a person
conducted him or herself before this section came into force.’
This post originally appeared on Tom Watson's blog and is cross posted here with permission.