The Begum Question

Lewis Thomas 26 February 2019
Image Credit: BBC

The government has a problem, and her name is Shamima Begum.

Begum went to Syria when she was 15. She married an ISIS fighter, had three children, then fled ISIS territory due to its collapse. She is now in a refugee camp and recently gave birth. She has been stripped of her British Citizenship by the Home Office. She also wants to return to the UK.

There’s been a lot of ink spilled recently about what Begum did, and whether or not those acts justify the government revoking her citizenship. But there’s a problem with this – to argue over whether Begum’s actions have justified her loss of citizenship is to ignore the fact that the government should not have revoked her citizenship without going through the Courts.

Shamima Begum is a British citizen. She was born in Bethnal Green. A glance at the British Nationality Act (for the sake of brevity, I’m going to refer to it as the BNA from here-on-in) throws up the following bit of legislation:

“A person born in the United Kingdom after commencement [of the act] shall be a British citizen if at the time of the birth his father or mother is—
(a) a British citizen; or
(b) settled in the United Kingdom.”

She was born in the United Kingdom to Bangladeshi migrant parents- people “settled in the United Kingdom”. As a result, she is a British citizen by birth.

Does the Government have legal grounds to deprive her of citizenship? Well, yes. Possibly. The Government has argued that, as she travelled to the Middle East to support ISIS, she has committed crimes against the United Kingdom sufficient to justify the deprivation of citizenship.

Looking back to the BNA, it has the following to say about deprivation (ellipses indicate portions of the legislation that do not relate to Begum’s case):

“4:2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.]

4:4)The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.

[F118(4a) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—

(b) The Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and

c) The Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.”

From the Government’s perspective, 4:4:c is a way round the problem of Begum being made stateless –  as she is Bangladeshi by descent, and entitled to Bangladeshi citizenship, they could conceivably argue that they had “reasonable grounds” to believe that she could obtain Bangladeshi nationality.

But there’s a catch – the Bangladeshi government have now said that they will not entertain any citizenship application from Begum. So, by depriving her of British citizenship, the Government has now made her stateless, thus violating 4:4. As it is unclear as to whether or not Begum has formally been deprived of citizenship, or simply notified that the government will deprive her of citizenship, it’s a bit of a legal mess.

Based on the sections of the BNA quoted above, it appears on the surface that the Government has the right to deprive Begum of citizenship, and has acted within the law. Begum travelled to Syria and she allied herself with enemies of the United Kingdom – she has conducted herself “in a manner which is seriously prejudicial to the vital interests of the United Kingdom”. However, while the BNA makes no explicit mention of it, there should be the expectation that whether or not she did conduct herself in that manner should be decided by a court. Not by the Home Office, not by the needs of Sajid Javid’s shadow leadership bid, but by a court. The Government has shown that it wishes to impose a penalty under British law- as a result, if Begum is suspected of a crime, she must be tried according to British law in a British Court.

We pride ourselves – at least, we ought to pride ourselves – on our institutions. On our courts, on our assemblies, and on our political traditions. Among those traditions is the right to a fair trial, and also the right to a trial. At the moment, Begum has not been convicted of a crime. While the Government may have good evidence to support the idea that she acted against the interests of the United Kingdom, they have not proven that she did in a Court, and Begum has not had the chance to plead her case before a judge. When I say “plead her case”, I don’t mean giving interviews in the media from a refugee camp in Syria- I mean standing up in front of a Judge in, say, R. v. Begum and explaining why she travelled to Syria, what she did there, and any other information she cares to provide.

She is entitled to this. Arguing for Begum’s right to return to the UK, or her right to retain citizenship until conviction (if, indeed, she is convicted) is not supporting ISIS, nor is it acting as an apologist for terrorism. It is believing that there is some worth in our judicial system, and that we should not allow our government to act outside of that system. And make no mistake – this is what the Government has done.

Over the past few days, the Government has shown that it trusts itself more than it trusts the Courts. It has shown that it trusts the Home Secretary and public opinion to mete out punishment without offering the punished party a right of appeal or a chance to state their case. It has – seemingly – let the needs of a leadership campaign overrule the rule of law and an individual’s right due process. And most importantly, it has shown itself to be arrogant and irresponsible.

An independent judiciary is a cornerstone of a civil society. By denying Begum her day in court and opposing her return to the UK, the Government has undermined that judiciary. As a result, it has disgraced itself in Britain. But it has also sent a signal to the world that Britain cannot be trusted to own up to its own problems, and to deal with the actions of its citizens. The Government has made a unilateral judgement to wash its hands of someone it owed a degree of obligation towards, and accepted a degree of responsibility for. What does it hope to gain by that? It cannot hope to gain soft-power, because it has retreated from a problem. The same goes for hard power, as it has all but lost a chance to potentially try Begum. And it cannot hope to gain credibility, as it has none.

Ironically for one which prides itself on defending “British values”, the current Government has shown itself to be completely ignorant of them. It has shown contempt for the judiciary, a preference for arbitrary populist judgements over the rule of law, and a substantial degree of irresponsibility when it comes to the signals it sends to our allies. And it has also shown itself to be blinkered- we cannot pretend that Begum was not radicalised in the UK, nor can we pretend that she is not somehow the country’s responsibility. Her case has raised questions – how she was radicalised, what prompted her to go to Syria, etcetera. These questions can only be answered if she returns to the UK and – if the CPS deems it appropriate – is tried in an appropriate court. They cannot be answered if she is cast away in some corner of the Middle East.

In 1959, in response to the maltreatment of detainees in a British Army camp in Kenya, Enoch Powell gave what came to be known as the “Hola Camp” speech. In it, he criticised the actions of the army and those who said that soldiers accused of murder and torture should not be tried. He began his conclusion with the following passage: “I would say that it is a fearful doctrine, which must recoil upon the heads of those who pronounce it, to stand in judgement on a fellow human being and to say, “Because he was such-and-such, therefore the consequences which would otherwise flow from his death shall not flow.”

To update it for the Begum case: I would say that it is a fearful doctrine to stand in judgement on a fellow human being and say “Because she was such-and-such, therefore the due processes which would otherwise flow from her acts shall not flow.”

The Government believes it has a choice in how to deal with British citizens suspected of crimes based on their citizenship status, public opinion, where the citizen is at the time, and whether or not it believes it can get away with acting without consent of the courts. To again update Powell’s conclusion:

It has not that choice to make. It must be consistent with itself everywhere.