Following the July Court of Appeal's decision to allow Shamima Begum to appear in court to argue her case in person, Boris has railed against the judiciary, calling the decision to grant Begum legal aid "odd and perverse", and committing the government to review not just the legal aid policy, but the entire system of judicial review. This article will set out the case for protecting and expanding legal aid provision in Great Britain, and examine the effects of an absence of legal aid on the justice system as a whole.
The case of Shamima Begum
It is likely that you will already be familiar with Ms Begum - the infamous ISIS fighter who left the UK aged 15 to fight alongside the terrorist organisation in Syria. Following her discovery in 2019 by a journalist, then-Home Secretary Sajid Javid revoked her citizenship. Begum had married a Dutch jihadist a week after arriving in Syria, with whom she had three children, none of whom survived infancy. According to reports in the Telegraph, Begum served in ISIS's 'morality police' and tried to recruit other women, while gaining a reputation as a strict enforcer of ISIS's rules. The Independent also reported shocking allegations that Begum stitched suicide bombers into explosive vests so that they could not be removed without detonating.
In an interview, Begum expressed her intention to return to the UK to raise her son, but was not regretful of her decision to join the terrorist group. She repeatedly made excuses for ISIS's atrocities, including rape, beheadings, and the targeting of children in the Manchester Arena attack. A day later, her citizenship was revoked under s.40 of the British Nationality Act 1981, with the government declaring her a national security threat. Under s.40(4), the government is prohibited from revoking citizenship of an individual if doing so would leave that individual stateless - a problem Mr Javid dismissed by arguing that Begum qualified for Bangladeshi citizenship. Indeed, under s.40(4A)(c) of the Act, citizenship can be rescinded if the individual in question qualifies for other citizenship (even if they do not currently possess it). The government of Bangladesh, however, denied that Begum holds citizenship, and have said that if she tried to enter the country, Begum would be executed under their zero-tolerance policy on terrorism.
The issue in question, however, is not whether Ms Begum's citizenship can be revoked, but whether it is a good thing or a bad thing that she qualifies for legal aid. When she was first granted legal aid to contest her citizenship status, then-Foreign Secretary Jeremy Hunt described the decision as "very uncomfortable", but added that the UK is "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." It would be hard to argue that Ms Begum is not a person of limited means, after all.
In the Court of Appeal's judgment, Lord Justice Flaux, joined by Lady Justice King and Lord Justice Singh, echoed the sentiment expressed by Hunt, and wrote that "fairness and justice must, on the facts of this case, outweigh the national security concerns." The former chair of the Commons Foreign Affairs Committee Crispin Blunt MP similarly said that "she was born here and brought up here, so, I think we do have duties. We are bound by the rule of law."
Legal aid in the UK
It has been accepted for almost a thousand years in the UK that access to the courts was a constitutional right, but there was never a constitutional right to the provision of legal assistance at public expense if a person could not afford a lawyer. To remedy this injustice (which prevented the poor from accessing the courts), the Court of Requests, which started as a small-claims court in the Tudor period, provided legal help for those who needed it, but the system was haphazard and unreliable. The Poor Man's Lawyers Movement, established in the late 19th century, provided pro bono services to those who could not afford a lawyer, but this stopped short of representation in court, and despite pro bono services being a tradition in England, free legal aid from lawyers was an unpredictable source of assistance.
When a committee was formed in 1944, led by Lord Rushcliffe, recommended the establishment of a legal aid system, the post-war Labour government embraced the idea, saying in a White Paper in 1948 that legislation would be introduced "to provide legal advice to those of slender means and resources." This became the Legal Aid and Advice Act of 1949. Despite this remarkable step forward in the provision of legal aid, it was never solidified as a core column of the welfare state, which left it sitting uneasily out of the relative security enjoyed by the NHS and other benefit systems.
The first cuts to the legal aid system took place in the late 1980s, as the government tried to restrict expenditure in the face of unprecedented costs. Tony Blair's Labour government also committed themselves to living within the spending estimates of the Major government, and by 2005, costs were more or less under control, sitting steady at £2.1 billion, but towards the end of the decade, under the Brown administration, cracks began to form between the government and the Law Society over the administration of the scheme. When the coalition government was elected in 2010, their austerity policies cut legal aid substantially, and the 2012 Legal Aid, Sentencing and Punishment of Offenders Act overhauled the system, introducing for the first time the concept that legal aid would only be available for those legal topics that fell within the scope of the new statutory scheme. Lawyers fees paid under the legal aid programme were also reduced.
The effect of government policy on the legal aid system is clear: between 1986 and 2007, there was a 34% decrease in the amount of people eligible for legal aid, leaving just 29% of individuals able to claim from the programme. Under the Conservative governments post-2015, about a million fewer claims for legal aid are processed each year, and in some parts of the country (particularly in the south-west and the north-east), there is absolutely no legal aid available.
The effect of an absence of legal aid on the justice system
Concerns about the legal aid system are not new. When it was simply charitable, one of the founders of the Poor Man's Lawyers Movement described the system as making the rule of law "an anaemic attenuated make-believe which we flash in the eyes of the poor as justice." The then-President of the Law Society Christina Blacklaws similarly condemned the modern system, saying that "if British justice exists it is only for the wealthy... If people cannot effectively enforce and defend their rights, then for all practical purposes, those rights do not exist at all."
I have never met a lawyer or judge with whom I have discussed this issue who has not expressed serious concerns about the lack of legal aid available to low-income people, who are increasingly at the whims of government policy to uphold their rights, rather than being able to rely on the judiciary, as they should. In the case of UNISON, the Supreme Court held that excessive fees on accessing employment tribunals constituted a barrier to access to justice, and forced the government to reduce them, so that the people's constitutional right to justice was not infringed, but there is no similar protection that affords people the right to state assistance, no matter how prudent it may be. The Courts are increasingly concerned by a lack of legal aid, but remain powerless to do anything about it. Large law firms are shouldering a great deal of the burden through their pro bono practices, but this wrongly places the responsibility of upholding constitutional rights on the generosity of the private sector, rather than the government of the United Kingdom.
The question of whether Shamima Begum should be allowed to retain her British citizenship is awaiting appeal, but if the current government, led by Boris Johnson, makes good on his promise to 'review' legal aid, the ramifications will not just be one individual unable to contest her citizenship decision, but more and more low-income families denied their right to access justice. If the government continues to starve the legal aid system, then our justice system, our rule of law, will apply only to the wealthy and the powerful, and not the vulnerable. Minorities will be disproportionately affected by this, with disabled individuals unable to contest decisions on benefits, people of colour helpless when faced with eviction, and the queer community powerless to fight cases of discrimination. Shamima Begum is a terrorist, without a doubt, and the government must not be using her exceptional case to hurt its own people, but without a strong, effective legal aid system, we will be powerless to stop them.
The opinions of this article are solely those of the author and are not intended to provide accurate legal advice for anyone to rely on. While the content is intended to be factually correct, the author does not accept any responsibility or liability arising from the use or misuse of this article or any loss/inconvenience/damage stemming from this. Legal advice should be sought from a qualified professional, not this blog. The opinions represented in this blog are personal and belong solely to the blog owner, and do not represent those of the people, institutions, or organisations that the owner may or may not be associated with in a professional or personal capacity, unless explicitly stated. The views expressed by any podcast guest are their own entirely, and do not necessarily reflect those of the blog owner. The blog owner is not responsible and liable for any discrepancy, if any. Any content provided by this blog or its companion podcast is not intended to malign any religion, ethnic group, club, organisation, company, individual, or anyone or anything.
For more information, a fantastic resource on the history of legal aid in the UK can be found at https://sirhenrybrooke.me/2016/07/16/the-history-of-legal-aid-1945-to-2010/
An interesting account with examples I had not previously considered. I particularly enjoyed the historical chronology of the origin of legal aid. Thank you once again.
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