Uncommon law

MPs to debate three tricky legal issues today

Three fascinating legal developments are to be debated in the House of Commons later today — not an observation I have had occasion to make very often since I launched A Lawyer Writes almost five years ago.¹ All of them demonstrate, in different ways, the sovereignty of parliament and I am grateful to the Hansard Society whose informative weekly newsletter alerted me to them.

New security fencing for parliament © Hansard Society/Richard Greenhill

Deprivation of Citizenship

On 26 February, the Supreme Court gave judgment on cases brought against the home secretary by appellants referred to as N3 — a man born in Bangladesh in 1983 — and ZA, a girl born in Bangladesh in 2019.

Also mentioned in the judgment is E3, who is ZA’s father. He was born in the UK to Bangladeshi parents. Both he and N3 were deprived of their UK citizenship in 2017 on grounds that they had participated in Islamic terrorist organisations. ZA lost her UK citizenship when her father did. In the home secretary’s view, they were Bangladeshi citizens and so were not left stateless — which would have been unlawful.

In a separate case decided in 2021, the Special Immigration Appeals Commission concluded that the home secretary had no power to deprive three other individuals of their British citizenship. Even though these people had close links to Bangladesh, the country did not regard them as its nationals.

The home secretary accepted that others in a similar position would be stateless if deprived of their UK citizenship. So N3 and E3 were told a month later that their British citizenship had been reinstated. The same applied to ZA.

What the courts were then asked to decide was whether N3 and E3 had remained British citizens all along. And did that make ZA British from birth?

No, said the High Court and the Court of Appeal. Yes, said the Supreme Court in February: the deprivation of citizenship order was to be treated as having had no effect. E3 and N3 must be regarded as having had British citizenship throughout. And ZA is a British citizen by virtue of E3’s status as a British citizen at the time of her birth.

No doubt the home secretary could live with the decision as it applied to N3 and E3. But it has much wider implications — perhaps even unintended consequences.

Let’s take the example of someone who has been deprived of his UK citizenship while out of the country. He appeals successfully. As the law now stands, he can return to the UK. The home secretary then brings a further appeal — and wins. So he loses his UK citizenship again. But by then he in the UK, posing an acknowledged threat to national security. He may even have taken the opportunity to renounce his foreign citizenship, making it impossible for him to be removed.

To deal with this possibility, the government introduced its Deprivation of Citizenship Orders (Effect during Appeal) Bill in the Commons last month. This says that a deprivation of citizenship order continues to take effect during the “appeal period”.

That period runs from the day that a person appeals against a deprivation of citizenship until “the day on which the appeal is finally determined, withdrawn or abandoned”. And “finally determined” means the date on which no further appeal is possible — ignoring the possibility of an appeal out of time with permission.

The bill applies retrospectively to all current appeals. In an excellent research briefing, CJ McKinney of the House of Commons library sums it up in a sentence:

If the bill passes, someone who successfully appeals against an order taking their British citizenship away would not get their citizenship back until it is no longer possible for the government to challenge that appeal.

The bill was given an unopposed second reading on 30 June. It is expected to complete all its stages in the House of Commons today and will then go to the House of Lords.

Privilege

The first item of public business this afternoon following any urgent questions or statements raises an unusual question of parliament privilege.

Last year, the previous government set up an independent public inquiry to investigate whether the car bombing in Omagh, County Tyrone, on 15 August 1998 — as a result of which 29 people and two unborn children were killed — could have been prevented by UK state authorities. The inquiry, which heard opening speeches last month, is chaired by the Scottish judge Lord Turnbull — who stopped hearing criminal appeals in 2021 when his wife Dorothy Bain was appointed lord advocate.

The inquiry wants to consider evidence given to the Commons Northern Ireland committee in 2009 by the former senior investigating officer, Chief Superintendent Norman Baxter. He alleged that police investigating earlier attacks in 1998 were not shown intelligence reports that could have allowed them to disrupt the activities of dissident republican terrorists ahead of the Omagh bombing.

Baxter gave some of his oral evidence to the Northern Ireland committee during a private session. A transcript was made but it was never published or reported to MPs. Tim Suter, solicitor to the Omagh inquiry, has filed a petition asking the committee to let the inquiry see this evidence, which is protected by parliamentary privilege.

Tonia Antoniazzi, chair of the Northern Ireland committee, and Simon Hoare, chair of the public administration and constitutional affairs committee, will propose a motion today that Suter’s petition should be considered by the Commons privileges committee. If the committee concludes that the evidence should remain unreported, it would be asked to make a recommendation on whether the transcript should be released — presumably, in confidence — to the Omagh inquiry.

Royal Albert Hall

The Royal Albert Hall Bill is a private bill — one that applies only to specific organisations or individuals. Private bills are not to be confused with private members’ bills, which are public bills proposed by backbenchers.

The Royal Albert Hall is an iconic London venue. Its construction in the 1860s was funded by the sale of seats. These seats can be freely traded and more than a quarter remain in private ownership. If you own one, you can watch whatever performance is taking place unless the hall has been hired out on an exclusive basis. If you don’t fancy what’s on, you can donate your tickets to charity, send them back to the box office for sale at face value (less a commission) or sell them through such websites as Ticketmaster and viagogo for whatever they will fetch. For some concerts, that may be very much more than their face value.

The Royal Albert Hall bill deals with the way the hall is governed. It was introduced in the House of Lords in January 2023 and passed with an amendment two years later. That amendment was proposed by the former Conservative MP Lord Hodgson of Astley Abbotts and opposed by Lord Harrington of Watford, the bill’s promoter in the Lords. Their speeches can be read in Hansard. This version of the bill shows the contested amendment in red.

Hodgson told peers:

My amendment would insert a new clause in the bill. It does not in any way impact the rights of seat-holders generally. However, if you are a seat-holder and a trustee — a member of council — you are in a special position because of your ultimate decision-making power.

If the council decides that it needs more freedom in setting the balance between inclusive and exclusive lets, so be it, but the use of this power needs to pass two further tests.

First, any changes proposed under the new provisions need to be approved by a sub-committee of the board of which independent members form a majority…

Secondly, as regards seat-holding trustees or council members — or their families — any tickets resulting from the use of the power can be sold back only through the hall box office via the ticket return scheme. They cannot be sold in the open market.

The trustee will then get back the face value of the ticket but will not be able to make potentially super-profits — super-profits which will have arisen as a result of the decisions for which they were ultimately responsible.

Hodgson’s amendment, which became clause 5 of the bill, was passed by 207 votes to 45. The government took a neutral position.

A statement issued by the bill’s promoter ahead of today’s Commons debate says:

The hall considers clause 5 to be misconceived and unworkable in practice. Nevertheless, the hall is willing to recommend to the hall’s members (they having approved the bill as deposited) a constructive response to the concerns that were expressed at third reading in the House of Lords.

This could be a more tailored and workable version of clause 5. Alternatively, the hall may propose a different approach, such as greater openness by providing for seatholding trustees publicly to disclose their ticket income. This would be submitted for consideration at the bill’s committee stage…

The hall considers clause 5 to be… unfair because prohibiting a seatholder trustee from selling other than through a ticket return scheme is unnecessarily restrictive and financially punitive.

The bill was listed for a formal second reading in the Commons on 29 April. That was blocked by a cry of “object!” from the Conservative MP Sir Christopher Chope. He continued to block the bill on the next nine Tuesdays when the Commons was sitting.

Nusrat Ghani MP, the deputy speaker who as chairman of ways and means is responsible for the progress of private bills in the Commons, has now exercised her power under standing orders to allow a three-hour debate on the bill later today. That was clearly what Chope wanted.

As a lone MP, he can no longer block the bill’s progress. But what will the Commons do with it now? Assuming the government remains neutral on the bill, that must be very difficult to predict.

1. My first piece was published here on 10 August 2020. Look out for a celebratory announcement on 1 August.