Britain's Supreme Court gets something very right
Citizenship involves not just rights but also duties
Shamima Begum
More than a few jaws dropped when Britain’s Supreme Court ruled a few days ago that the “Isis bride” Shamima Begum should not be allowed to return to Britain to fight the government’s decision to strip her of her British citizenship.
In 2015, when Begum was 15 years old, she and two other east London schoolgirls left Britain to join Islamic State in Syria. In February 2019, she was discovered heavily pregnant in a Syrian refugee camp. Her baby subsequently died of pneumonia and Begum said her two other children had previously died too.
That year, the Home Secretary stripped her of her British citizenship on national security grounds — which have never been fully disclosed. He argued that she also held Bangladeshi nationality so she wouldn’t be left stateless. The government refused to allow her to return to the UK to fight that decision.
Last July, the Court of Appeal ruled that Begum should be allowed to return because she could not effectively appeal against the decision while living in a camp in northern Syria. The Home Office appealed to the Supreme Court, arguing that allowing her to return “would create significant national security risks”. Last week, the court agreed.
Could it really be that the Supreme Court justices had actually done the obviously sensible thing and decided that the security of the country was an overriding priority in a human rights case? It could be; and was.
Those of us who have long despaired of the way the unchallengeable “human rights” orthodoxy has undermined core values and captured swathes of the judiciary to carry this agenda forward raised our weary eyes at this ruling and blinked in disbelief.
What had happened? Had the Supremes put their finger up to test the cultural wind and decided to tack to the real centre ground?
Although the judgment was unanimous, the most likely explanation is that the court has a new president, Lord Reed, whose views are said to be “conservative”— ie intellectually rigorous, ideology-free and evidence-based.
The ruling that Lord Reed delivered, in which he excoriated the findings of the Appeal Court judges as being wholly mistaken, was a robust statement of the priorities which should properly be established in this case. There was no “right" to fight a deprivation of British citizenship within Britain. On the contrary, he said:
There are, indeed, many situations in which a party to legal proceedings may be unable to present her case effectively: for example, because of the unavailability of evidence as a result of the death, illness or incapacity of a witness. If the problem is liable to be temporary, the court may stay or adjourn the proceedings until the disadvantage can be overcome. If the problem cannot be overcome, however, then the court will usually proceed with the case.
The consequence is not that the disadvantaged party automatically wins her case: on the contrary, the consequence is liable to be that she loses her case, if the forensic disadvantage is sufficiently serious…
It is, of course, true that a deprivation decision may have serious consequences for the person in question: although she cannot be rendered stateless, the loss of her British citizenship may nevertheless have a profound effect upon her life, especially where her alternative nationality is one with which she has little real connection. But the setting aside of the decision may also have serious consequences for the public interest.
In such a case, it would be irresponsible for the court to allow the appeal without any regard to the interests of national security which prompted the decision in question, and it is difficult to conceive that the law would require it to do so.
And he concluded:
The right to a fair hearing does not trump all other considerations, such as the safety of the public.
This judgment provoked predictable outrage from human rights activists and their media mouthpieces. One argument, however, was rather more fundamental than the claim that Begum was being deprived of her ability to fight her case. The real issue, said these critics, was not whether she should be allowed to return to the UK to appeal against the decision to strip her of her British citizenship. It was rather that, since she was British by birth, it was fundamentally unjust to strip her of her citizenship at all.
In a letter to The Times a professor of law, Ryszard Piotrowicz, said the fact that Begum is (arguably) also a Bangladeshi citizen was irrelevant. He wrote:
All countries retain the right to revoke citizenship of naturalised citizens but the revocation of the citizenship of someone who has had it since birth as of right is quite another matter. It is a serious assault on the rights of every UK-born citizen who happens to have another citizenship and a draconian step that needs to be challenged.
The assumption behind this and other similar objections is that citizenship is an inalienable right for anyone born in that country. But is that so?
It suggests that there’s a kind of hierarchy of citizenship, with the purest and therefore most untouchable form being the status of someone who was born in that country. But surely someone who is naturalised is no less of a citizen that someone who was born there?
Some might therefore argue that it’s wrong to revoke anybody’s citizenship. This is also to miss the point.
Some people use the terms “citizenship and “nationality” interchangeably. But they don’t mean the same thing. “Nationality” relates to ethnicity or country of birth; “citizenship” is a legal status.
Citizenship derives from a political construct called a nation, and is the bargain that is struck between a nation and those who belong to it. These people observe the rule of law and pay their taxes, in return for which the state provides them with certain benefits such as public services, policing and the defence of the nation, as well as the protection provided by the country’s laws.
Citizenship is not an unconditional right like, say, the right to life. It involves not just rights but duties, and just as in other areas of life flouting those duties breaks the bargain.
Both state and citizen have a duty to observe the conditions of that bargain. If a citizen breaks her side of it so badly that she then poses a serious danger to the security of the state, that country is entitled to remove her citizenship because she has effectively emptied it of its meaning. By presenting a danger to the state, and with her presence therefore no longer being “conducive to the public good”, she forfeits the protections of the state to which, as a citizen, she had been entitled.
Much of the rejection of any revocation of citizenship derives from what happened under the Nazis. In this paper published in Ethics and International Affairs in 2016, Patti Tamar Lenard illustrates the confusion implicit in this reaction. She first argues that states — including democracies — have historically protected their right to revoke citizenship. She writes:
They have been amply supported by liberal political theorists (including Immanuel Kant and Benjamin Constant) who, in the name of state sovereignty, have been willing to endorse “the legitimacy of the punishment [of withdrawal of citizenship] as long as it [is] not used arbitrarily.”
But then she writes:
More recently, however, the expulsion of Jews from Nazi Germany following their denationalisation generated a consensus among democratic states that there is something profoundly objectionable—indeed, profoundly undemocratic—about the power of a state to revoke citizenship unilaterally. As Audrey Macklin observes, citizenship is a kind of “meta-right” because its absence “places all rights in the balance.” It is the source from which all additional rights flow, and is itself essential to protecting these rights. For the most part, citizenship does not create rights deserving of protection; rather, it formally designates the entity responsible for protecting these rights.
This is yet another example of someone who has failed to learn the real lessons of the Holocaust. Stripping German Jews of their citizenship was surely all about furthering the Nazis’ fantasy of the racial purity of German national identity. To commit genocide, they didn’t need to deprive the Jews of the rights that flowed from that citizenship. The Nazis were going to murder them anyway, which breached something rather more fundamental than mere citizens’ rights.
The Jews were to be subject to the Final Solution — and that meant the murder not just of German Jews deprived of their citizenship but also of all Jews throughout Europe and the Middle East who weren’t German at all.
It’s also perverse to argue that, because a murderous dictator stripped innocent Jews of their citizenship as part of the policy of placing them in lethal jeopardy, a democracy should therefore not be able to remove the citizenship of those bent upon murder in order to prevent them from placing innocent people in lethal jeopardy.
What a relief that, on this occasion, Lord Reed and his fellow justices have followed Kant rather than cant.
Recent posts
Premium subscribers can read my most recent exclusive post, on the warped Middle East mindset behind the Biden administration, by clicking here.
And you can read my most recent post that’s available to everyone, on the return of American anti-anti-Islamism, if you click here.
One more thing…
This is how my website works.
It has two subscription levels: my free service and the premium service.
Anyone can sign up to the free service on this website. You can of course unsubscribe at any time by clicking “unsubscribe” at the foot of each email.
Everyone on the free list will receive the full text of pieces I write for outlets such as the Jewish News Syndicate and the Jewish Chronicle, as well as other posts and links to my broadcasting work.
But why not subscribe to my premium service? For that you’ll also receive pieces that I write specially for my premium subscribers. Those articles will not be published elsewhere. They’ll arrive in your inbox as soon as I have written them.
There is a monthly fee of $6.99 for the premium service, or $70 for an annual subscription. Although the fee is charged in US dollars, you can sign up with any credit card. Just click on the “subscribe now” button below to see the available options for subscribing either to the premium or the free service.
A note on subscriptions
If you purchase a subscription to my site, you will be authorising a payment to my company Dirah Associates. In the past, that is the name that may have appeared on your credit card statement. In future, though, the charge should appear instead as Melanie Phillips.
And thank you for following my work.