UK: Crime and citizenship

The United Kingdom is largely regarded as a nation that has pioneered the rule of law and championed the course of human rights. One would therefore have never expected a country that often takes the moral high ground and is vehement in its statements of support for human rights would introduce such a draconian legal measure that will undermine and destroy the most fundamental right of a citizen, however this is exactly what is happening in the UK.

Theresa May, the current Home Secretary tabled an amendment to the immigration bill currently making its way through the legislature that seeks to give the power to remove someone’s citizenship, and thus render him or her stateless.

In 1958, the same issue was considered by the US Supreme Court, and it was decided thus: “Use of denationalisation as a punishment means the total destruction of the individual’s status in organised society. It is a form of punishment more primitive that torture.”

The power to remove someone’s citizenship has been there for a significant number of years, however, it was only used very rarely. This amendment however seeks to extend the power significantly. The measures being sought would effectively leave an estimated 3-4 million people vulnerable, this being the approximate number of people who hold a British passport but were not born in the UK.

Of huge concern is that the power could be exercised regardless of whether the person in question had committed a crime, the only test being whether to take such a step would be “conducive to the public good”, because the person has conducted themselves “in a manner which is seriously prejudicial to the vital interests of the United Kingdom”.

Silencing dissent

The proposed definition is appallingly wide in that effectively, anyone who voices opposition to the government or any of its policies could be deemed to fall into this category. Is this really where we have come to? One of the oldest democracies in the world, one of the bastions of freedom and human rights now seeks to introduce legislation that can potentially be used to silence any form of dissent. The war on terror has indeed taken us into a very deep hole.

The legislation was passed in the commons and has been brought to the House of Lords, who have watered down the proposals somewhat, in that an amendment was added so that the government must “reasonably believe” that the person being stripped of his/her citizenship is able to become a national of another country, however, the power is still likely to remain.

However, the “reasonable belief” will be decided behind closed doors, without due process and without the subject of the discussion being made aware that this is being considered, and thus preventing any form of defence being submitted.

We must remember, that it cannot apply to those born into British citizenship, only those who have been granted the same during their lifetime. Surely this poses a significant risk that communities will be marginalised further and thus perhaps compounding a problem. Under the Human Rights Act 1998, it will have to be determined that the legislation is not discriminatory in intent. By targeting an identifiable group, namely foreign-born naturalised citizens, who are treated differently to comparable groups, British-born citizens, this may raise serious concerns as to a discriminatory practise.

Affront to democracy

It is anticipated that the Home Secretary will seek to argue that appropriate checks and balances have been put in place, in that there is an appeal process, however, this appeals process is in itself a further affront to the principles of democracy and justice.

Where national security reasons are cited as being the justification for the revocation of a person’s citizenship, any appeals process will be heard in secret, and the person subject to the removal will be barred from attending. They will be unable to see, or challenge any evidence being used to justify the decision. They will have to rely on a “special advocate” to present their case, remembering that this advocate will have little contact with the appellant, and will be barred from discussing any evidence that is being presented to the appeal.

Such a move is indeed a cruel and unusual punishment, and one that has no place in any civilised state. To enact such powers will place us in the company of dictators and despots, such as the Saddam Hussein regime who exercised similar powers against the Kurds.

Appropriate legislation to enable the authorities to target, those engaged in terrorist activities is wholly necessary, however, transparent checks and balances must be put in place, and such measures should not undermine the very principles of a democracy that that they are seeking to protect.

It is truly a dark day for the UK when the government will tell a person that they have done something against the interests of the UK and therefore are being stripped of their citizenship, but when the inevitable question of “what” is asked, the answer will simply be that the government cannot say for matters of national security.

Lord Hoffman’s words in a 2004 UK case involving terrorism are never more stark: “The real threat to the life of the nation… comes not from terrorism but from laws such as these.”

Toby Cadman is an international criminal law specialist. He is a Barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.