Clause 9 of the Nationality and Borders Bill

In July 2021, the UK government set to work on a new Nationality and Borders Bill. This bill was partly motivated by arguments regarding the purported need to ‘take back control’ of the UK’s asylum and immigration system after Brexit. It has been met with a mixture of hostility and astonishment in many quarters, and it has been decried as ‘shameful and Orwellian’. One reason why it has induced such hostility is connected to its provisions concerning the treatment of potential refugees, which threaten to criminalise the entry of refugees into UK territory without a visa. In addition, many actors in civil society and some members of the Westminster Parliament have taken issue with the recent introduction of a new amendment which, if enacted, will modify existing legislation on citizenship deprivation. Simply put, the new ‘Clause 9’ will allow the Home Secretary to deprive people of their citizenship without telling them. This clause was approved by the Commons and is currently being reviewed by the Lords. The die is not yet cast in this matter, and the House of Lords has recently refused to approve other controversial draft legislation. Yet, should this far-reaching amendment acquire statutory force, it will raise important questions about the capacity of the UK constitution to prevent sweeping executive authorisation, even in matters with intense bearing on the most profound human rights and entitlements. As this blog argues, Clause 9 points to disquieting weaknesses within the UK Constitution.

Clause 9 within the UK’s Expansive Deprivation Powers

The powers of the UK government with regard to citizenship deprivation were recently pinned down as exceptionally far reaching, and, as such, they affect in an extremely detrimental manner the rights of some individuals and their sense of belonging. In their current legislative form, deprivation powers create a ‘tiered citizenship’, in which the foreign heritage of some citizens means that they are particularly susceptible to loss of citizenship. For example, since 2014, naturalised citizens can be left stateless for actions deemed ‘prejudicial to the vital interests of the state’. Very few safeguards can be invoked to limit the executive’s exercise of such powers. Individuals can be stripped of their citizenship without having faced trial, and no authority, judicial or political, checks whether the conditions to issue a deprivation order are met. Deprivation of citizenship under such provisions takes immediate effect, and appeals are non-suspensive.

Such provisions are to be intensified in the current bill. Under the new Clause 9, the Home Secretary will be exempted from notifying a person that they have lost their citizenship in cases in which it will not be ‘reasonably practicable’ to do so, or if withholding such information is ‘otherwise in the public interest’. It is unclear how these powers will work in practice. However, their current framing creates a real risk that individuals will be left stateless without being aware of this fact. Appeal rights are also manifestly left hanging as it is difficult to envisage how individuals could challenge a decision if they have no knowledge of it. Notification is, after all, the first step to any legal challenge and a key component of the Rule of Law and fair decision making. The Home Office has pledged that these new powers will not remove the right to appeal of individuals, and that these powers will only be used in ‘exceptional circumstances’. However, such claims of behavioural restraint have been widely ignored in the past.

Should Clause 9 be given royal assent, it will be an important building block in an expansive legal framework concerning citizenship deprivation. Unfortunately, there is nothing exceptional in the fact that Clause 9 was approved by the Westminster parliament. The UK government is reproducing well-established patterns of law making in areas linked to national security concerns. In fact, it is replicating the actions of another parliament, in 2014, which granted to the executive the power to make individuals stateless in certain specified circumstances.

The 2014 Immigration Bill and the Nationality and Borders Bill 2021: Same Old Stories?

Comparing the behaviour of the Westminster parliament in 2014 to 2021-2 points to important similarities between both periods.

First, in both cases, amendments to existing statutes were triggered by judicial decisions, which precluded the Home Office from issuing deprivation orders. Section 66 of the 2014 Immigration Bill was introduced by Theresa May (then Home Secretary) as a direct response to the ‘disappointing’ decision of the Supreme Court in ‘Al Jedda’. The case followed the government’s failure to deprive Hilal Al Jedda of his citizenship, because the order would have left him stateless as he had not recovered his lapsed Iraqi citizenship. Section 66 intended to reverse this judgement, allowing statelessness in limited circumstances. Similarly, the introduction of Clause 9 in the current bill follows a small judicial victory: the case of ‘D4’. In D4, the High court found that the wording of the 1981 British Nationality Act obliged the Home Secretary to make efforts to notify individuals of their citizenship loss. However, in the last paragraph the court suspended the effect of this ruling ‘for a short period’. Commentators argued that this last move was designed to give Home Office lawyers more time to ‘find a way out of the mess they got themselves into’. As it appeared, Home Office lawyers did find an easy way out of this: a change of legislation with a retroactive element so as to neutralise the effect of the D4 judgement.

Second, both the 2014 and the 2021-2 amendments were not placed in the foreground of political discussion by the government. They were abruptly introduced to already existing bills at the last minute, without prior consultation. Parliamentary debates in 2014 were filled with concerns about parliamentary processes being passed and/or seriously impeded by claims of national security protection. For example, the government was amply criticised for withholding critical information on grounds of national security. Similar patterns are apparent in 2021-2, as the government has been accused of manipulating parliamentary procedures and curtailing debate in the Commons.

Third, the House of Lords seems to be providing much stronger resistance to the government than is the Commons. In 2014, the Lords managed to introduce post-legislative scrutiny, which takes the form of a reporting to the Independent Reviewer of Terrorism Legislation, followed by the publication of a report every three years. This review has been widely described as inadequate, and the last report dates from as long ago as 2016. Home Secretaries can also only deprive naturalised citizens who are single nationality holders if they have the reasonable belief that these persons would acquire another nationality (s40(4Ac) of the British Nationality Act 1981). Current amendments tabled by the House of Lords on Clause 9 seem to be more promising and more robust, as one these proposes to scrap citizenship deprivation altogether. But, for the sake of the argument, let us assume that the 2021-2 amendment is approved, subject to minimal changes in the Lords. If this occurs, the ability of the UK constitution to avert legislation that openly mandates potentially abusive use of executive power will inevitably be subject to doubt.

The Failure of the UK Constitutional Arrangements before Hard Cases

There are, arguably, two processes at play which inhibit effective checks on government action. One is linked to procedural issues in the UK parliamentary system (what Fiona de Londras calls ‘systemic disincentive to dissent’). The other is linked to the broader context, which is dominated both by national security concerns and by judgments about who belongs in the UK and who does not.

Examples of procedural issues include rigid voting patterns amongst members of parliament (the ‘whip’ system). The ‘whip’ was stringently at play in 2014, where amendment 66 was voted in despite criticism and opposition from members of the coalition government. Recent work also points to the increase of Parliament’s workload during the pandemic, which makes it difficult for parliamentarians to exercise their review functions. Daniella Lock and Tanzil Chowdhury paint a gloomy picture of the UK parliamentary landscape in 2021, with new bills introduced which increase executive’s powers to use coercive force whilst simultaneously reducing executive accountability.

In the broader national security context, it is also well known that debates tend to be marked by consensus, as Parliamentarians do not want to be seen to be opposing legislation that could weaken, or be viewed as weakening, the security of the state (the ‘rally around the flag’ effect). The undersecretary for the Home Department made this clear during the debate on Clause 9 in the Commons. In his opinion, removing the clause would ‘undermin[e] the integrity of the immigration system and this government’s efforts to keep dangerous people out of this country’. In this context, the primary targets of deprivation powers (‘dangerous people’) are projected in terms of ‘otherness’, and they are implicitly considered not deserving of protection. This too has some importance in terms of voting patterns since there can be little political gain for MPs to protect those who have already been excluded from the political community. This was starkly put by the Conservative MP Alexander Stafford: ‘the question for this House is whose side we are on’.

Naturally, these broad questions are diffusely linked to the post-Brexit background, in which, in the last national elections, a coalition of factions gained a strong parliamentary majority whose interest in limiting executive overreach, in protecting vulnerable subjects, or even in respecting basic norms of international law is not pronounced. The UK’s parliamentary mechanisms, which are conceived as instruments to hold the government to account and to reach decisions with broad support, are ineffective in such contexts. This combination of procedural and contextual factors leaves little room for parliamentary dissent and democratic dialogue. This, in turn, makes it possible for the government to implement extremely harsh measures with minimal safeguards.

Conclusion

I most sincerely hope that I am wrong and that Clause 9 will be rejected by the House of Lords, and eventually dropped by the government. This will happily leave me in a position in which I only have to understand the reasons why drastic expansions to deprivation powers were endorsed in 2014 but not today. But if this legislation is to be approved, now is the time to recall that the passing of such measure is a) dangerous for the nearly 6 million people who could be affected by it; b) an attack on citizenship and its normative foundations in its entirety; c) a challenge to the UK’s commitment to the Rule of Law, deepening the accountability gap in the UK’s system of terrorism prevention. With small judicial wins over expansive executive action so easily overcome, Clause 9 is an alarming reminder of the fragility of constitutional safeguards in the UK.