This week the Home Secretary, Sajid Javid, decided not to allow Shamima Begum to return to this country, stripping her of her British citizenship and arguing that she is instead the responsibility of Bangladesh.
His decision to do so has not been universally popular, but others have argued that the UK should not go easy on the young Isis bride. Brendan O'Neill, in an article for the Spectator, said he has 'been worried about the moral compass of the chattering classes for a while now... But even I have been taken aback by the sympathy for Begum. It points to a complete unanchoring of sections of the opinion-forming set from any sense of morality.' He said that Begum should not have her citizenship removed. Instead, he argued, she should be brought back to this country and tried 'as a traitor to the British people.'
But O'Neill is missing a key point here. While a revolutionary tribunal might try someone 'as a traitor,' in Britain, that would be to put the tumbril before the horse. The show trial in which traitors are paraded as guilty from the start is not the British way. Traditionally the purpose of a trial in this country is to find out whether the defendants have committed a crime or not. We gather evidence, select a charge, see whether it can be proved. If it can be, a sentence follows and even at that stage the judge can – and often does – show compassion, especially if the defendant was very young, or exploited to some extent by others at the time the crime was committed.
The apparent contempt for the rule of law demonstrated by O'Neill is alarming. In a different way, this attitude is also shown by the Home Secretary. Whether you call them 'hard-won civil liberties' or 'human rights' does not matter: the rights which are under attack are not just abstract concepts thought up by the hated 'chattering classes.' They are aspects of what common law has long regarded as natural justice, the very foundation of our freedoms. They include such things as the right to know the precise charge and the evidence against you, to cross-examine witnesses, to competent legal representation, to have your evidence heard by an impartial court, and to be sentenced by an impartial judge, applying the law rather than whimsical public opinion. Some of these rights are in part protected by the Human Rights Act, but many have arisen from the tradition of the English common law.
The Home Secretary's decision to take away Begum's citizenship is a decision to impose on her a life sentence of exile. Some may say that that is a proper sentence for a traitor, but that again is to assume guilt without a trial. Treason – ill-defined though it may be – involves more than simply moving to the territory of an enemy. It requires proof beyond reasonable doubt of treasonous acts against Our Sovereign Lady the Queen.
The Home Secretary does not need to prove treason in order to strip Begum of her citizenship; merely that she is a dual national of Bangladesh, and that he 'is satisfied' that removing her British citizenship is 'conducive to the public good.' It is an absurdly vague basis upon which to condemn someone to banishment.
The legal process – it is nothing like a criminal trial - before the Special Immigration Appeal Commissioners (SIAC) which is now open to Begum is bereft of almost all of the attributes of a fair trial: there is no jury, the criminal standard of proof is not applied, the case need not be heard in public, she cannot attend or give evidence in person, she cannot even know all the evidence against her (the Home Secretary is allowed to rely on secret evidence), she cannot cross-examine the witnesses and if she loses the court has no discretion in the 'sentence': her citizenship will be revoked indefinitely.
Of course organisations like Isis pose a threat to the country, but so too does dispensing with the rule of law. From the appalling treatment meted out to Mau Mau suspects in Kenya to the internment of terrorist suspects in Northern Ireland, history has rarely been kind to those who have suspended the normal rules of law to fight terror.
Brendan O'Neill and Sajid Javid are advocating different things, but both are equally wrong. If Begum can be proved to have committed crimes she should be prosecuted. If she cannot, she should be allowed to return. There are measures which could be put in place to mitigate the risk she might pose. They do not altogether guarantee our safety, but they probably do so better than consigning her to the life of an international outlaw. Anthony Loyd, the journalist who broke the story, and who has the advantage both of having spoken to her at length and of having himself been kidnapped, beaten, shot and seriously injured by Syrian terrorists, certainly thinks so.
Imposing exile for life on an unconvicted woman, after a travesty of a legal process, is simply and unarguably wrong in a liberal democracy. The Home Secretary should think again.
Matthew Scott is a criminal barrister at Pump Court Chambers.