Now even Labour seems to have understood our courts are out of control

Telegraph

11 hours ago

The Deprivation of Citizenship Orders (Effect during Appeal) Bill has flown rather under the radar of all but a handful of open-borders organisations.
But following as it does Shabana Mahmood 's previous showdown with the Sentencing Council over its proposals for two-tier justice, it casts an interesting light not only on the slowly emerging cross-party consensus on regaining political control over Britain's borders, but how to do it: responding to adverse court judgments with primary legislation.
The Bill has been tabled because of a recent ruling by the Supreme Court. In February, in its judgment on N3 (ZA) v Secretary of State for the Home Department, it ruled against the Government (which had prevailed in both the High Court and Court of Appeal) on the question of whether a child, born to a man who had his citizenship revoked and then restored, was a British national.
As so often, the case itself dealt with unusual circumstances: the child ('ZA') was born during the gap in her father's British citizenship. But as also so often, it involved the Supreme Court setting a wider precedent. As the Government's explanatory fact-sheet explains: 'The Supreme Court held that if an appeal against a deprivation decision is successful, the initial order will have had no effect and the person will be considered as having continued to be a British citizen.'
The sheet adds: 'This means that people who have been deprived of British citizenship will automatically regain that status before further avenues of appeal have been exhausted.'
It isn't difficult to see the problems here. First, while undoubtedly a nice thing to do for a child, this precedent could be extremely problematic if exercised by an adult litigant deprived of their citizenship on national security grounds: like going to join Islamic State, as did Shamima Begum.
Second, it is out of line with existing law and policy in similar areas. A successful asylum appeal, for example, does not automatically grant asylum status; all avenues of appeal by the Government must be exhausted first.
But most seriously, the Supreme Court's version of the policy risks making it practically impossible to deprive anyone of their citizenship at all.
Why? Because Britain remains committed to the international conventions which prohibit rendering someone 'stateless', i.e. without citizenship. This is why citizenship can only be revoked from dual nationals (indeed, that has been one of the criticisms levelled against it).
Thus, the Supreme Court's ruling creates an obvious exploit. In a future case, the Government might lose an initial challenge to a deprivation of citizenship order (DCO), but go on to win on appeal. However, if the plaintiff's initial victory quashed the DCO, they could then renounce their dual nationality – making a new DCO unlawful, even if the Government eventually proved the original was lawful.
It's an extremely silly precedent to set and ministers are right to take action. More than that, this is very much the right kind of action. A narrowly targeted Bill is much less liable to being undermined by judicial interpretation than a broader, more eye-catching law, both because it is less open to creative interpretation and because it makes the political will of Parliament extremely clear.
For all the legitimate criticism levelled at the judiciary, it's important to keep in mind that under our constitution, they can only move into territory vacated by MPs. Even when they egregiously overstep the mark, as when they interpreted completely out of existence the attorney general's veto in the Freedom of Information Act in the Evans ruling, Parliament could have legislated to put that right – and didn't.
Perhaps the single biggest reason to be sceptical that we'll see any sustained pushback against judicial overreach is simply that it would involve MPs doing a lot more work, and perhaps even having to reverse New Labour's comfy cuts to their sitting hours. Given that the new generation seem to think that Commons debates intrude on their diaries, that seems like a long shot.