Last month, dentists, accountants, military officers, and other middle-aged professionals stormed the US Capitol. Their minds addled by the distortions of reality, the conspiracy theories, and the lies that made up the Trump Administration, most were convinced they were acting in pursuit of some higher form of justice, defending a President whose victory was stolen by the ‘deep state’.
Despite the manifestly delusional nature of this, these insurrectionists will be given lawyers, and will have the opportunity to make their defences before a court. They will be provided with the opportunity to stand in the witness box and to try and explain why they tried to stage a coup and overturn the American government, and how their minds had been warped by the conspiracy-mongering of QAnon and the deceit of the Trump White House. Then, with any luck, they will be convicted by a jury of their peers. Crucially, though, they will have been given a fair trial beforehand. It is only at this point that a liberal democratic government has the right to punish its citizens.
The UK Supreme Court seemingly has a different attitude, however, unanimously deciding today that Shamima Begum does not have the right to return to the UK in order to receive a fair hearing. At the same time, the Court acknowledged that it is impossible for her to have a fair appeal while she is detained at a camp in Syria. The justices’ answer to this quandary is to pause, or ‘stay’, her appeal, while she waits for the point at which she can safely participate from outside of the United Kingdom, even though it is ‘not known how long before that is possible’. This, the Supreme Court prosaically notes, is ‘not a perfect solution’.
At the root of this case is the question of whether the Home Secretary can unilaterally strip British citizens of their citizenship. This is what Sajid Javid did to Begum in 2019, after she was found by Anthony Lloyd, the Times’ foreign correspondent, in a Syrian camp. Having being brainwashed by ISIS recruiters as a fifteen year old, she fled the UK to join the would-be Islamic Caliphate, where she was married to an ISIS fighter and gave birth to three children (all of whom have died). Given the trauma she suffered, she remained astonishingly devoted to the Islamic State, continuing to condemn the moral degeneracy of the West in her interviews to Lloyd.
It was this devotion that led to Javid depriving her of British citizenship, arguing that she was a threat to national security and could not be allowed to return. Crucially, this option was only available to him because Begum ostensibly also holds Bangladeshi citizenship through her parents, meaning that removing her British citizenship did not ‘render her stateless’, which would have violated international law. As I wrote at the time, not only was this cowardly, but also counterproductive, leaving Begum free to proselytise against the UK, further radicalising others into joining ISIS’s death cult. After all, if she is such a threat to British national security that our elite counter-terrorism operatives cannot de-radicalise or contain her, what hope do Bangladesh’s security services have?
Inevitably, Begum appealed this decision, which was upheld at the first instance by SIAC, the Special Immigration Appeals Court. Lord Pannick QC, representing her before the Supreme Court, argued that it was impossible for her to effectively participate in her appeal from a Kurdish controlled camp in Syria. Instead, so that her case can be fairly heard, she should be allowed to return to the UK. The Supreme Court did not accept this argument. Instead, while the justices acknowledged the importance of the right to a fair trial, they held that such a right is not a ‘trump card’, and that due regard must be given ‘to the interests of national security which prompted the decision’.
Without dwelling unduly on the legal minutiae of the decision, the case broadly came down the question of deference. The Home Secretary had decided that Begum was such a threat to national security that the only way of mitigating the threat she posed was by forcing her upon Bangladesh, or otherwise leaving her to roam the deserts of the Middle East. The Court of Appeal found that it was reasonable for it to query this decision, asking if Begum truly was such a threat, and if she was, if there was not a way for her threat to be neutralised on her return, whether through arrest and prosecution, or through imposing a TPIM notice on her- a power conferred on the Home Secretary to restrict the behaviour of individuals deemed a threat.
The Supreme Court ruled that such a line of questioning was beyond the Court of Appeal’s authority. Instead, they rely heavily on the fact that the empowering legislation gives the Secretary of State the power to deprive individuals of citizenship if they are ‘satisfied it is conducive to the public good’. This gives the Home Secretary vast powers over the rights of citizens- particularly those who have dual nationalities. Even if Parliament intended for the Home Secretary to have an unaccountable power- and notably, they did not insert an ouster clause trying to limit the courts’ power here- it is the judiciary’s role to police the limits of the power, not to pay obeisance to the Secretary of State.
By taking this approach, the Supreme Court makes it seem as though it was unjustified for the Court of Appeal to ask if there were not less drastic routes towards resolving the challenge posed by Begum. But this was not an unreasonable question for the appellate justices to ask. America, which has also seen some citizens betray it to join ISIS’s cause, has repatriated twenty-eight of its nationals, with President Biden’s UN Ambassador saying that ‘the global threat…will grow if the international community does not repatriate its citizens’, while other European countries have also begun repatriation. Max Hill, the UK’s Director of Public Prosecutions and the former independent reviewer of terrorism legislation, has also said that in the ‘vast majority’ of cases, prosecutions would be possible, with various routes open to the government in how to use classified intelligence as part of the evidence against the accused. It was more than reasonable for the Court of Appeal to consider if stripping Begum of citizenship was the right, or perhaps even necessary, course of action.
In his judgment, Lord Reed, quoting Lord Sumption, wrote that the decision allows the courts to ‘assess the appropriateness of the balance drawn by the Home Secretary between [a person’s] right to British nationality and the public interest’ while ensuring that the Home Secretary’s decision is ‘accorded appropriate respect’. The Supreme Court’s judgment does no such thing. There was no assessment of the balance of the Home Secretary’s decision, but simply an abdication of responsibility. In essence, the Court said that because the matter pertained to national security, it could not intervene, giving the Home Secretary an almost unlimited power- apart from decisions of the most manifest absurdity- to strip British citizens of their citizenship. Even if the Court of Appeal erred in not hearing sufficient evidence on the how the state could mitigate the threat posed by Begum, the Supreme Court has reversed the error, trusting that the Home Secretary’s decision was a reasonable one on their say so alone.
Rather than recognising that it is the judiciary’s role to check the excesses of ministers, particularly when they intrude on fundamental rights like the right to a fair trial, the Supreme Court looks to the ‘democratic accountability of ministers’, whether to Parliament or the people, to check the government. Such an approach is naive, particularly for a Court that has seen its legitimacy frequently challenged by recent governments, including the incumbent one. As Tomlinson et al wrote in a recent piece on delegated legislation for the UK Constitutional Law Blog, and as Isabel Hardman argued in Why We Get the Wrong Politicians, governments exert overwhelming influence over backbench MPs, with meaningful parliamentary scrutiny often lacking. The prospect of MPs effectively limiting the powers of government ministers- on anything, let alone matters of national security- is almost laughable; while if the Court truly thinks that the people will remedy the harm done to Shamima Begum, they have forgotten that she was not stripped of her citizenship to jeers from the people, but their cheers.
Shamima Begum may have committed heinous acts, but she was then a fifteen year old girl failed by the British state. She is now a twenty-one year old woman who has been failed by the British state once more. Even for individuals who seek to overthrow the state, or commit vile acts, the iniquity of the acts they are accused of does not reduce the protections that should be afforded to them. Stripping someone of their citizenship is one of the most powerful tools in a government’s arsenal. It deprives someone of their home and their family, forcing them into a country that they do not know, and that does not want to know them. Begum was stripped of her citizenship because it was politically expedient, nothing more. The Court of Appeal recognised this, and held the government to account. It is unfortunate the Supreme Court refused to do the same today