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State funding of terrorism

Editorial Staff

It's a fine point and one which raises hackles on both sides: should a state (which means the taxpayer) fund legal action against the state (which means the taxpayer as represented by elected members) where the action complained of is itself an action against the state (which means society at large)? It's an area where law, emotion and common sense collide and the result is not a pretty sight.

The facts in the particular case are not in issue: Shamima Begum, a dual citizen of the UK and Syria, was living in the UK at the time she decided to leave and join so-called Islamic State or Da'esh where she married a "fighter." Later, after Da'esh came under pressure, losing territory and "fighters," and in a second term of pregnancy, Begum decided that she wanted to return to the UK. The UK made it clear that she would be turned back if she presented herself at a UK Border. Frankly, aside from her family no one would have cared had it not been for the pregnancy and a campaign began to facilitate her return to the UK, even after she miscarried. That miscarriage meant that she would not be giving birth to a British citizen. The UK government declared her persona non grata and cancelled her UK citizenship. The campaign has carried on and this week Begum's application for Legal Aid was granted.

As a result, funds from British taxpayers will be allocated to allow Begum to appoint lawyers to bring a claim against the British government to attempt to compel it to restore her citizenship. The legal position is clear: all persons must be entitled to take action to enforce their rights. The question of legal aid is far, far more complex and has polarised opinion.

There is a valid argument that there are few rights more fundamental than a right to citizenship. Indeed, under international law, it is almost impossible for a country to revoke citizenship so as to render a person stateless, in effect an "outlaw" in the true sense. But that does not apply in this case: Begum as not rendered stateless: she remains, the British government insists, a citizen of Syria. Even so, to strip someone of UK citizenship is a rare and serious step.

There is widespread support, amongst senior lawyers, for the granting of legal aid in such cases. However, those same lawyers are concerned that the ever-shrinking legal aid pot should be fairly apportioned and Begun's action, some say, is allowing her to jump ahead of many others with equally deserving cases. There are even calls, led by eminent solicitor-Judge Barrington Black, for the establishment of a separate fund for political actions, so taking them out of competition with cases of more commonplace causes.

Politicians are, either, sitting on the fence or leaning over without actually making a commitment. The first issue is whether legal aid should be available to persons who have actively behaved against the interests of the state: Jeremy Hunt, a government minister, made the position clear. "We are a country that believes that people with limited means should have access to the resources of the state if they want to challenge the decisions the state has made about them." he is reported as saying. In this he is right - but fails to deal with the question of prioritising applications. His cabinet colleague, Gavin Williamson, who has a direct interest in the case as Minister of Defence, told media "Quite frankly the British people don't like it, and quite simply neither do I. It is something people cannot see why she is getting legal aid when she turned her back on this country."

While the focus is on one "ISIS bride," the case is actually much more important. The government was in very public anguish when making the decision over Begum's citizenship - and her ability to return to the UK. Serious questions, in government and across society were asked: she might say she's sorry now, when she is in difficulty and wants something, but how can she be trusted: after all, she went to Syria to join a gang the primary purpose of which is the overthrow of everything we stand for. Secure that the vast majority of British people supported the cancellation of her British citizenship, the government took action.

But, she is not the only one that the government is concerned about. There are several other women and several "fighters" wanting to return to what they now call "home." The concept of making a bed and lying in it is lost on them. The government, openly and honestly, says it doesn't know what do to with them. Now they are not engaged in open hostility, they are not an overt threat. Previously, they were regarded as legitimate targets by the governments of many countries, pretty much wanted dead or, well, dead. One of the strengths of Da'esh was its media strategy. It is not an unreasonable assumption that at least some of those now saying they are sorry are lying and their objective is to return to their home countries ready and willing to commit acts of terrorism and, in the meantime, to seek to radicalise others. Cancelling citizenship allows the long established principle of making it someone eles's problem.

All of this means that the case is in the public interest. There is little doubt that it should be brought and that it should be, under the basic principles of English law, funded. The primary question, then, is whether it should have priority.

The end result is that, ironically, the Legal Aid authorities find themselves in a position that they are not qualified for: in effect deciding whether there is a point of sufficient legal importance that the case should be heard. That's the kind of decision that Courts make before allowing an appeal to a higher court. In this way, the Legal Aid authorities are required to exercise not only budgetary constraints but also a quasi-judicial function.

It is the latter that causes the real dilemma, not the question of priority, although it is that which the media focuses on because it's easier to play to the gallery than to explain to the entire theatre.

To put it simply: if a person is charged with treason, the state will, subject to conditions, fund the defence. Begum was, in effect, treated as treasonous without a trial. While criminal convictions rarely proceed on the basis of res ipsa loquiter, administrative actions frequently do.

This all brings us to the single most difficult question: if the state is funding an attempt by a terrorist (now claiming not to be such) to return to the UK, is the state actually providing material support, in just the same way as if it were handing a bomb-maker a plane ticket? Answers on a postcard, please.

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