We are delighted to welcome this guest post by Ntina Tzouvala and Rumyana Grozdanova on Theresa May’s announcement of her intention to repeal domestic legislation in order to be able to deprive terrorism suspects of their UK citizenship. Ntina is Deputy Co-Convener of Law and Global Justice and a PhD student at Durham Law School who is currently researching on history and theory of public international law. You can contact her here or follow her on Twitter @ntinatzouvala
Rumyana is Deputy Co-Convener of the Human Rights Centre and a PhD student at Durham Law School who is currently researching the US programme of Extraordinary Rendition and its effects on the international legal framework. You can contact her here or follow her on Twitter @rgrozdan
On 12 November 2013 the Home Secretary, Theresa May, announced her intention to repeal domestic legislation in order to be able to deprive terrorism suspects of their UK citizenship even if this renders them stateless. In years following 9/11 and 7/7, domestic and regional counter-terrorism responses have reshaped the relationship between individuals and the state and in particular the relationship between individuals suspected of terrorism and the state. Through broad anti-terrorism legislation, law has become a tool for persecuting individuals suspected of terrorism; the new measures proposed by Theresa May are yet another domestic step in what has been described as the ‘weaponisation of law’ (1). In the context of the transnational counter-terrorism operations led by the US and UK (also known as the ‘War on Terror’), the UK Terrorism Act 2000 introduced tougher and more extensive anti-terrorism measures in comparison the USA Patriot Act 2001. The existing definitions of terrorism were vastly expanded from politically motivated violence to include politically and religiously motivated serious property damage and interference with electronic systems; protests and strikes could thus potentially fall under the definition as well. The 2000 Act also outlined a proscription regime based on intelligence evidence, which by its nature was secret and introduced offences relating to being a member of or identifying with a proscribed organisation. Other broad offences were introduced, which appeared to push the boundaries of inchoate or pre-crime liability by criminalising the possession of articles. Due to the broad scope and span of the legislation, these offences could potentially by applied to individuals who are suspected of terrorist activities. This legislative approach towards a permanent basis for anti-terrorism measures in times of normalcy as opposed to times of national exigency was followed by the Anti-Terrorism, Crime and Security Act, 2001. The 2001 Act revived the offences of failure to provide information to the authorities, the use of immigration law as part of anti-terrorism law and a renewable 15 month derogation from Article 5(1)(f) the European Convention on Human Rights. The derogation in question was used to authorise indeterminate administrative detention of non-UK citizens suspected of involvement in terrorist activities however could not be deported due to the principle of non-refoulement. It was struck down by a House of Lords decision, which found the post 9/11 derogation to be both disproportionate and discriminatory by focusing on non-UK citizens only as posing a threat of terrorist activities. Perhaps the most significant legal development of the post 9/11 and 7/7 UK approach is the return to the regular renewal of the anti-terrorism legislation, which in 2006 and 2008 included minor expansions to the definition of terrorism (2). In short, domestically, the adopted definitions of terrorism have legitimised and normalised broad sweeping counter-terrorism measures. A significant development within this context is the recent case of R v. Gul. The UK Supreme Court found that there is no basis on which the ‘natural, very wide, meaning’ of the definition of terrorism under the 2000 legislation could be read restrictively as the definition ‘had clearly been drafted in deliberately wide terms so as to take account of the various and possibly unpredictable forms that terrorism might take.’ Thus potentially anyone can be a suspect of terrorism or terrorist related activities as illustrated aptly by the recent 9 hour detention of David Miranda at Heathrow Airport. Historically, few words have been plagued by so much indeterminacy, subjectivity and political disagreement as the word ‘terrorism’ (3). The term has gradually developed into one of the most pejorative words in the English language with a power focused on condemnation and response rather than explanation. Taking into account the pejorative connotations associated with the term terrorist suspect and the potential implications for an individual under the current anti-terrorism framework in the UK, the reasons behind Theresa May’s proposal lie elsewhere.
It could be assumed that this response to the recent Supreme Court decision in the case of Secretary of State for the Home Department v. Al-Jedda. In this case, the Court found that section 40(4) of the British Nationality Act 1981 prevents the Home Secretary of depriving someone from his/her British citizenship ‘if she is satisfied that the order would make them stateless’. By repealing the law, Theresa May will seek to remove this restriction and allow for more flexibly in measures taken against suspected terrorists. Significantly, the Secretary of State presently commands a wide discretion when it comes to deprivation of citizenship. Since 2002 the Secretary of State has the right to deprive of citizenship not only naturalised citizens, as was the case until then, but also has power to remove citizenship from all British citizens. The Act was further amended in 2006 to expand the discretion of the state – now any British citizen can be deprived of their citizenship ‘if the Secretary of State is satisfied that deprivation would be conducive to the public good’. Prior to this amendment, the Secretary of State had to be satisfied that the person had done something ‘seriously prejudicial to the vital interests of the United Kingdom’. The inherent indeterminate scope and ambiguity of the ‘public good’ criteria has thus significantly enhanced state power when it comes to removal of citizenship.
Section 40(4) is perhaps one of the last legal safeguards against misuses of the Act. Statelessness significantly imperils the rights of an individual; most crucially it renders them exceptionally vulnerable as it would be almost impossible to acquire travel and identification documents and legally reside in a territory. The international community was determined to limit the occurrence of such precarious experiences after the infamous Nuremberg Laws and the Holocaust. Following World War II, the granting and removing of nationality ceased to be an unlimited prerogative of the state as international legal documents began imposing constraints on signatory states. Article 15(1) of the Universal Declaration of Human Rights adopted in 1948 notes that ‘Everyone has the right to a nationality’. While the Declaration did not have a legally binding character when adopted, today it is generally accepted that it has acquired international customary law status and is therefore binding upon all states. Furthermore, two conventions with exclusively focusing on statelessness have been drafted under the auspices of the UN. The 1956 Convention Relating to the Status of Stateless Persons attempted to mitigate the adverse impact of statelessness by designating a minimum standard of treatment for stateless people. The 1961 Convention on the Reduction of Statelessness sought to reduce the occurrence of the phenomenon by imposing significant limitations on states’ discretion to manage their citizenship laws with a view to limit incidents of statelessness. This Convention came into force in 1975 and after this date its provisions set out significant international legal limitations for states parties to it, including the UK, which ratified the Convention in 1966. Articles 7, 8 and 9 impose limitations on the deprivation of nationality if a state act results in rendering an individual stateless; therefore, the UK’s discretion on the matter is curbed under international law.
Admittedly, the UK has altered its obligations under the treaty by tabling a reservation. Nevertheless, the repeal proposed by the Home Secretary appears to exceed the scope of the reservation itself. The reservation only covers the deprivation of citizenship of naturalised citizens. Hence, one could reasonably argue that the 2002 amendment of the British Nationality Act 1981 was already in violation of the 1961 Convention. More importantly, the text and spirit of the reservation strongly indicates that it refers to individuals convicted by a court of law for ‘seriously prejudicing the vital interests of Her Britannic Majesty’. There is no evidence that the reservation was intended to be applicable to ‘suspects of terrorism’. Such an interpretation broadens the scope and span of the reservation in a manner that undermines the object and purpose of the Convention itself (5). Hence, the mantra that British citizenship is ‘a privilege, not a right’ and as a corollary that it is strictly and solely within the UK Government’s authority to manage citizenship rules are deceptive, as they involve (purposefully) a disregard for international legal obligations.
(1) Kennedy, D., Of War and Law (2006, Princeton; Princeton University Press) and Murphy, C. C., EU Counter-Terrorism Law (2012, Oxford; Hart Publishing);
(2) The list of Acts containing the term ‘terrorism’ in their title and the full texts of the Terrorism Act 2006 and the Counter-Terrorism Act 2008 are available at http://www.legislation.gov.uk/primary?title=Terrorism
(3) Saul, B., Defining Terrorism in International Law (2006, New York; Oxford University Press), see also Gearty, C., Liberty & Security (2013, Cambridge; Polity Press)
(4) United Kingdom of Great Britain and Northern Ireland
“[The Government of the United Kingdom declares that], in accordance with paragraph 3 (a) of Article 8 of the Convention, notwithstanding the provisions of paragraph 1 of Article 8, the United Kingdom retains the right to deprive a naturalised person of his nationality on the following grounds, being grounds existing in United Kingdom law at the present time: that, inconsistently with his duty of loyalty to Her Britannic Majesty, the person
“(i) Has, in disregard of an express prohibition of Her Britannic Majesty, rendered or continued to render services to, or received or continued to receive emoluments from, another State, or
“(ii) Has conducted himself in a manner seriously prejudicial to the vital interests of Her Britannic Majesty.”
(5) Article 31(1) of the Vienna Convention on the Law of Treaties provides us with a useful guide as for the interpretation of treaty obligations: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”