WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
January 25 2023
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

‘Under Lord Reed, we’re seeing a Supreme Court that’s increasingly losing its way’

‘Under Lord Reed, we’re seeing a Supreme Court that’s increasingly losing its way’

Judges await Queen's Speech, UK Parliament

To be born British is to be born privileged.  It means to be born in one of the wealthiest countries on earth, to grow up speaking a language used around the world, to have rights and liberties that are upheld and defended.  But at the same time, the citizenship that British birth conveys is a right, not a privilege. Privileges are earned. Instead, people who are born British are entitled to their citizenship — it exists as of right.

Arguably, citizenship is not only a right, but the foundational right.  Britain may be a constitutional monarchy, but it is still a liberal democracy, where citizens are governed with their consent, not the fiat of kings or anyone else who rules. The role of consent is most visible at the ballot box, where the people, by having the option to vote, implicitly accept that they will be governed by the successful party that secures a majority, or largest plurality, of their votes.  

At the ballot box, citizens, as full members of the political community, are clearly distinct from non-citizens, such as foreign nationals.  While citizens have a voice in the political dialogue, those who aren’t citizens are forced to sit silently by as their neighbors, work colleagues and others with the right to vote choose the people who will make the rules to which they will all be subject. 

For this consent to be legitimate, however, citizenship must not be a question of leaping over discretionary hurdles, but fixed ones.  It must be open to all on some objective, non-discriminatory criteria for a democracy to be real.  If citizenship depends on someone’s wealth, or on their political connections, or on the whim of the executive alone, it is not a democracy, but an oligarchy- a place where the self-selecting few rule. 

Even if citizenship may be the democratic right, it is not a fundamental right – at least not in the sense that it is universal.  These rights, whether freedom of speech or access to the courts, extend to everyone found within a state’s borders. But although the right to citizenship may not be universal, this fact alone does not mean it isn’t still integral to the life of a democracy, and so entitled to protection from executive overreach.  This is where the Supreme Court erred in its decision in The Project for the Registration of Children as British Citizens v Secretary of State for the Home Department (The Project), handed down this week.

In this decision, the Court was presented with the question of whether there was any limit to what the government could charge children, such as those born in the UK to foreign parents, to apply for British citizenship. The fee is £1,012 for a child and, consequently, many children eligible for citizenship never actually become citizens because their parents can’t afford to pay.

Under the British Nationality Act (1981), which formally recognised that British people were citizens as well as subjects of the Queen, the government was permitted to charge an administrative fee, covering the costs of the application.  This reasonable approach was abandoned during Tony Blair’s second term, when his government passed a statutory instrument allowing the Home Secretary to set the application fee. This gives them the option of charging a ‘substantial surplus’, for little reason other than to subsidise other parts of the immigration system.

To all intents and purposes, the children this affects are no different to any other British child, except for the identity of their parents. They are born in the same hospitals, taught in the same schools, and go to the same universities and colleges as their peers who are British by birth.  They are British, end of story.  Nor does the government deny this. Such children don’t have to pass a test, proving their credentials, but simply jump through procedural hoops.  The registration process is a formality, nothing more- or at least that is what is should be.

Although it may be a formality, however, it is one that is transformative.  As the Windrush scandal showed us, non-citizens, even those with indefinite leave to remain, are vulnerable to bureaucratic whim.  They can be treated as second-class, susceptible to any passing policy fancy of the government, who can change – or even deprive them of – their rights at the stroke of a pen.  As Lord Hodge wrote in his judgment, ‘there is no dispute as to the importance to an individual of the possession of British citizenship’.  There was also no dispute that the increase in fees, which saw the cost of applying for citizenship rise from £312 to over a thousand, made it almost impossible for those on low or middle incomes to afford to register their children for citizenship, making the right, as Richard Drabble QC submitted, ‘nugatory’. 

Yet while finding that citizenship is of critical importance, and that it was hindered by the high level of fees, the Court emphasised that the appellants had accepted that the case was not concerned with ‘common law rights which have been recognised as fundamental or constitutional’.   The justices were right to conclude this, but they were wrong to draw from this concession the conclusion that they were ‘not concerned…with fundamental common law rights’.  As the Court has found before, the common law is not an ‘ossuary’, and it can develop through a ‘process of gradual adoption and development’ to ‘meet current needs’.

Indeed, Lord Hodge, who wrote the judgment in The Project, appears to have forgotten his own precedents.  In Moohan, on prisoner voting, he wrote that ‘it is not in doubt that the judiciary have the constitutional function of adapting and developing the common law…to keep it abreast of current social conditions’.  Not only is this a curious departure from a relatively recent case (although a departure wholly in-keeping with the court’s newfound desire to retreat from the constitutional battlefield) but it creates a peculiar hierarchy of rights.  The Court has acknowledged that the right to vote may be fundamental, but completely discounted the idea that there may be an equivalent right for citizenship – even though the right to vote rests upon it.

Rather than acknowledge its past writings on the nature of common law rights, the Court ignored them.  It dismissed the relevance of UNISON (where the Court found that there was a fundamental right of access to the courts) on the basis that they were not considering any ‘vested fundamental right at common law’, and rejected the notion that subsidiary legislation – which gives power to the executive to act – had to be ‘drawn [so] as not to conflict with statutory rights already enacted’.  As such the fact that Parliament, in primary legislation, gave children the right to citizenship did not mean that the government, acting under a later statute, could not unilaterally curtail such a right.

Whether you are British or not should not depend on the whim of a bureaucrat sitting in Whitehall, or on the vindictiveness of the Home Secretary, or on the fact that a government has given too much money to its friends and allies, and needs to recoup its losses somewhere.   Nor should it depend on the wealth of your parents.  It is a necessary right, and one from which many rights flow – not least the right to live a normal life, free of fear from the state. But according to the Supreme Court, it is not one that is fundamental at common law.

When Sandra Day O’Connor, the first female justice on the US Supreme Court, joined the bench, she sat alongside Thurgood Marshall, the first black justice on the Court and a liberal titan.  While they differed on much, Day O’Connor found that on some issues, like discrimination, having Marshall ‘in the room’ helped guide the debate, subtly shifting the attitude of the court.  With the absence of Lord Kerr, and particularly of Lady Hale as president, we are seeing something similar here.  Under the guidance of Lord Reed, we are seeing a Court that has increasingly losing its way. The country – and the children affected by the Court’s decision here – deserve better.