The Commons today voted to accept Theresa May's new clause 18 for the Immigration Bill. It gives her the power to deprive a British citizen of their citizenship if she:
"...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. "
Now you see my problem is that George Osborne fits that bill but I'm not Secretary of State so it doesn't matter what I think. Should it matter what any one individual, even a minister of the crown, thinks this vague wording means ? You don't have to be convicted of a crime, just to satisfy the opinion of whoever happens to be Home Secretary at the time. Removing citizenship is a pretty serious matter, which is why there are a number of international conventions on the subject. The UN Convention on the Reduction of Statelessness 1961 is where this curious phrase comes from in Article 8.3 (a) (ii):
" ...has conducted himself in a manner seriously prejudicial to the vital interests of the State"
The convention allows contracting states to remove citizenship, as long as the state concerned reserved the right to do so when signing the convention. The UK did. However, in Article 8.4 the convention goes on to say:
" A Contracting State shall not exercise a power of deprivation permitted by paragraphs 2 or 3 of this article except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body." [My emphasis]
In the Commons debate Theresa May twice said that this right was protected:
"The persons subject to provisions in the new clause will continue to be afforded an independent right of appeal, retaining an avenue of judicial redress. “ Hansard Col 347, 30th January 2014
and further down:
"It is right for the Secretary of State, as someone who is democratically accountable, to take the initial decision, but I confirm that there will be a full right of appeal, so a judicial process will apply"
This was ministerial sleight of hand for Theresa May was only referring to judicial review, which applies to all decisions by ministers. There are a number of restrictions on judicial review but the main limitation is that courts can only look at how the Secretary of State took the decision, e.g. did she consider all the relevant arguments, did she consider irrelevant ones ? This is NOT an appeal. The court cannot substitute its decision for hers. Surely judicial review does NOT satisfy the requirement of Article 8.4 of the convention for "a fair hearing by a court or other independent body."
It was perhaps these misleading assurances by Theresa May which led so many Liberal Democrat MPs to vote for her new clause or was it perhaps the three-line whip. After three years of voting for things you don't believe in, perhaps it's getting easier for them.
I take Liberty's view that terrorists should be prosecuted in court not dealt with by the arbitrary power of a ministerial ukase. At the very least such executive power should be subject to appeal to a court. I therefore honour those seven Liberal Democrat MPs who voted against the clause:
OK, your lordships, it's your turn now ! Show us what you're made of.