Speaking on the radio this morning, the Foreign Secretary refused the temptation to condemn the Legal Aid Authority’s grant of legal aid to Shamima Begum. He was right to do so.
We give legal aid to those accused of murder and genocide. This is not because we have sympathy with murderers and genocidal killers but because it is overwhelmingly in the public interest that criminal trials are fair, and that people are punished only when their guilt has been fairly established in accordance with the law. Once a crime passes a certain level of seriousness, legal aid for those without the means to pay is automatic. It would be absurd if it were denied to those accused of the most serious offences, or against whom there was particularly strong evidence. Indeed, the more serious the offence and the more severe the consequences for the individual, the more important it is that legal aid should be available.
Shamima Begum, has not – yet – been charged with a serious offence but the revocation of her citizenship will exile her, possibly forever. Exile has always been regarded as one of the most severe penalties that a state can impose.
Just as it is in the public interest that those accused of murder receive a fair trial, so it is in the public interest that the Home Secretary’s decision is shown to be justifiable and lawful at a fair hearing. It would be alarming if the Home Secretary was able to remove citizenship from an individual without them being able to contest the matter in court.
There is a court, the Special Immigration Appeals Commission (SIAC), which is charged with the scrutiny of cases of this sort. It is not as fair as one would wish for, because it sometimes sits in private, and hears evidence which is kept secret from the applicants. On the other hand it may be as fair as possible given the type of evidence it has to deal with.
A fundamental requirement of a fair hearing in any court is that both sides are able to have equivalent legal representation: ‘equality of arms’ is how it is usually expressed. In a case with this degree of public interest the government will shell out a considerable sum of money to ensure its own Rolls-Royce legal representation. The Home Secretary will no doubt instruct Queen’s Counsel, or at least a senior and highly regarded barrister with huge experience in similar cases. They would then be briefed by the government’s legal department, which itself attracts some of the country’s finest legal brains.
Without representation, a teenager with no legal training and not much formal education would be crushed under the government’s legal machine, even if she was able to get to the hearing. It would be almost laughably one-sided.
In fact, though, she will not even be able to get to a hearing because the very decision she is contesting means that she is not allowed into the country. The only way of ensuring that the evidence and arguments against her are tested at all, is to let her be represented by her own lawyers. On the fairly safe assumption that she does not have the means to pay, then it is right that legal aid should be made available for this to happen.
Some say that her family have paid for a solicitor so far, why should they not pay for her representation at the SIAC? The answer is that we do not require parents to pay for the legal representation of their adult children, and there is no reason to make an exception in this case.
Others assert that we should not fund her legal aid because she is no longer a British citizen. Leaving aside the obvious point that non-British citizens are regularly, and rightly, granted legal aid, it is a curiously circular argument when it is the very decision to remove her citizenship that is in dispute.
In the abstract almost everyone agrees that unpopular people should have access to the courts. Unfortunately, that abstract support for justice has a tendency to melt away when faced with an actual unpopular litigant. It is in the nature of things that the unpopular individuals concerned will often be unpopular for very good reasons. They may well be unpleasant and sometimes they are plain wicked. Those who should know better are then tempted to condemn, which overpowers any abstract concern they have for justice.
It should not require very much imagination to foresee what will become of our liberty if the unpopular are denied access to the courts, or (which comes to much the same thing) only permitted access on terms that ensures they have no chance of success.
Matthew Scott is a criminal barrister at Pump Court Chambers.