Visiting Professor in Law at Goldsmiths, Clive Stafford Smith OBE, who has fought against the death penalty in the United States, and untold cruelty at Guantanamo, throughout all his career, comments for Goldsmiths Law blog on yesterday’s judgment of the Special Appeals Immigration Commission (SIAC) which declined to overturn the government’s decision to remove her citizenship on the grounds of the risks she poses to national security.
Compared to Americans, British people are very complacent about their “rights”. They are also careless about misplacing and then losing them. It is a well-worn legal saw that where there is a right there must be a remedy. However, equally where there is no remedy there is no right. The shameful case of Shamima Begum is the latest illustration of this.
One of the Brexit battles was fought over a return to the old time British passport which trumpets grand language:
“His Britannic Majesty’s Secretary of State requests and requires in the name of His Majesty all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford the bearer such assistance and protection as may be necessary.”
Once this meant something – perhaps, in the age of Gunboat Diplomacy, it meant too much. Increasingly, it means very little.
I have watched as recent ministers have retreated from the protections that the passport used to provide. For many years I have represented Kris Maharaj, proud owner of a British passport, who was sent to death row in Florida in 35 years ago. He recently became the first person I have represented in many years where British ministers have refused to intervene in court to support the rather simple proposition that he should be released because he is totally innocent. This is very sad.
But your passport is a little book, and in Shamima Begum’s case the government is indulging in a new wave of “Suella Braverman Book Burning”. Shamima had her passport simply taken away from her. In her first case, the Supreme Court said that the government was not rendering her stateless since she could claim Bangladeshi citizenship. This was risible, given that she has never been there: she was born in the UK, and the Bangladeshi government assured us that she “would be hanged if she entered the country.”
Shamima’s most recent case was decided today by the secretive Special Immigration Appeals Court (SIAC) who focused primarily on the “‘credible suspicion’ that Ms Begum was trafficked” to Syria. Indeed, there has been a major exposé on how a paid informant for the Canadian spy agency was the one who trafficked her as a 15-year old juvenile.
This apparently counts for nothing, based solely on “the submission advanced on behalf of the Secretary of State that the conclusion that Ms Begum travelled voluntarily to Syria to align with ISIL is an integral part of the overall national security assessment carried out by the Security Service.” It is important to translate this into plain English: if MI6 says in a secret proceeding to which Shamima is not privy that she went to Syria to join ISIL, then it does not matter what other people say.
George Orwell would be proud.
We hear much about Guantánamo and its dysfunctional and secretive court system. Yet I have worked there for 21 years and again it is vastly preferable to SIAC. In Guantánamo I get to see the secret evidence, and then talk to my client about it (with certain limitations), whereupon my client can testify to his heart’s content. In SIAC, the “Special Advocate” can do no such thing, and is cut off from the client. All the more so for Shamima, who is stuck in what we have long called “Guantánamo on the Euphrates”: she has never met any of her lawyers, and was not allowed to provide any evidence herself.
The SIAC judges say it’s really just an administrative issue where the government minister’s decision is essentially unassailable:
Ultimately, although many right-thinking people will strongly take issue with the assessment of those advising the Secretary of State, the Commission has come to the conclusion that the assessment that Ms Begum’s travel was voluntary cannot be impugned on the application of administrative law principles in these appellate proceedings.
One might divine from this that Suella Braverman and MI6 were “wrong-thinking”, yet they have won the day over Shamima’s fundamental rights.
It is my view that we need to protect Shamima because she was born with human rights and she is a human being. I, for one, am not willing to banish anyone forever, or send them to Rwanda, because Suella Braverman says we should. But we can take a more selfish approach to legal rights: if we do not protect hers, we will soon lose our own.
Illiberal (and, dare I say it, ignorant) politicians are quick to sacrifice ancient rights with the promise of a favourable tabloid headline. Yet liberty is always eroded first at the margins, before creeping up on the rest of us. The politician decries how a hated subgroup is “granted” a particular right; plaudits from the populist tabloids follow. But then inexorably the rest of us find that we have lost out too. When, for example, the IRA were the terrorists-du-jour, in 1988 the Thatcher government took away their right to remain silent in Northern Ireland. The Guardian warned at the time that “the right is important because it prevents undue pressure being applied by the police to suspects.” Yet, as sure as night follows day, six years later the Government took the right from the rest of us in the Criminal Justice and Public Order Act 1994.
It is perhaps ironic that British lawyer think their system is so superior to the U.S., where 65 years ago the Supreme Court held in Trop v. Dulles that it would be “cruel and unusual punishment” in violation of the Eighth Amendment to strip people of their American passports even if they had been duly convicted of a treasonous crime. Here the U.K. courts effectively leave it to a secretive chat between Suella Braverman and a spook. Perhaps it is time we got serious about preserving our rights in a written constitution, before they seep away.
Clive Stafford Smith, JD, OBE, is a Visiting Professor at Goldsmiths and is teaching a clinic on the importance of constitutional rights in the face of populist challenges.
For further comment, please contact him at email@example.com.