There has been public outcry over Shamima Begum being granted legal aid to challenge the revocation of her British citizenship. This reaction is not just disappointing and unhelpful, but inimical to the rule of law and a fair legal system.
Begum, a British-born woman, joined the Islamic State group in 2015, when she was just 15 years old. In February 2019, she resurfaced in a Syrian refugee camp, heavily pregnant and wanting to return to the UK. Days later, Home Secretary Sajid Javid announced he had revoked her British citizenship, preventing her return to the UK.
Those who oppose the grant of legal aid should consider whether they are opposed to her receiving legal aid or to her being able to challenge the revocation of citizenship in the first place. Because, in practical terms, there is little difference between the two. A grant of legal aid means the government will pay for lawyers for someone who cannot afford it. Refusing Begum legal aid is tantamount to depriving her of her right to appeal. She obviously cannot appeal the decision without lawyers and it is inconceivable that she can afford to pay for them. Even in ordinary circumstances, few 19-year-olds would have tens of thousands of pounds to pay lawyers; but, from what we know of Begum’s circumstances, there is no chance she does.
It is a basic principle of our justice system that all parties in court should receive a fair hearing. And this applies to everyone, regardless of character or the heinous crimes they may have committed. There would no need for criminal legal aid if everyone suspected of having committed a crime was disqualified from receiving it on the basis that they were not worthy of it as they were suspected of committing crimes. In fact, the more serious the allegations against a person and the more severe the consequences for them, the more important it is that their case is decided fairly.
Cases at the Special Immigration Appeals Commission (SIAC), where this case will be heard, can often be most complex, involving not just English law but also that of other countries. It is clearly not possible for Begum to argue her case without a lawyer. Neither should she have to. The government is almost certain to be represented by not one lawyer but a team of lawyers. If we are expected to have any confidence in the Commission’s decision, whatever that decision may be, it is essential that Begum is legally represented too.
The right to a fair trial and other human rights should not be the preserve of the wealthy or the worthy. One should not have to prove one’s innocence or virtue, or indeed value to society, in order to qualify for a fair trial. A minister has unilaterally decided Begum no longer deserves to be British and should never return to this country, so it is essential that a court considers the fairness of that decision. And she must be represented to enable the court to make an informed, independent decision.
It is reported that the former lawyer for Begum and her family worked for years on a pro bono (unpaid) basis. While lawyers are known to sometimes act pro bono in cases where the client cannot pay, this is certainly not something that others, particularly the government, should rely on. It is the government’s, and only the government’s, duty to ensure a fair hearing for everyone. We cannot expect individual lawyers to step in and fill gaps left unfilled by the government. Just as we expect the government, and not individual doctors, to run a National Health Service that is available to everyone regardless of character or financial resources.
Despite tabloid rhetoric, legal aid in England and Wales is by no means overly-generous. If anything, it should be more widely available. There are very strict eligibility criteria and many most-needy individuals are refused. While it is unfair, positively inhumane even, for the government to refuse to grant legal aid in those cases, depriving others of legal aid is obviously no answer. Just because the government deprives one person of their human rights, we should not fall into the trap of objecting to the human rights of other people who we deem to be less worthy. Similarly, the government’s refusal to grant legal aid in cases we believe to be deserving should not lead to us opposing legal aid for others. What is needed is louder demands for a fair, accessible justice system that funds everyone who needs it – not opposing the grant of legal aid to people just because other, ‘better’ people have been refused.
Of all UK judicial setups, SIAC is probably the most criticised, and rightly so. As the government’s guidance says: “The commission will try to keep the hearing open to the public whenever possible. However, you, your lawyer and the public may have to leave the room if there is any secret evidence.” The odds are therefore already stacked in favour of the government – even when the person is present and legally represented. There is no real chance that Begum, living in a Syrian refugee camp potentially stateless, will be able to personally participate in this case, the most important case of her life. But to deprive her from even being represented in court would be unlawful and cruel. She therefore needs, and should be entitled to receive, legal aid. This is essential not just for her to have a fair hearing but in order to uphold the reputation of our legal system.