‘The Prime Minister has said that it is not acceptable and therefore it will not be accepted. It might be enforceable in a court of law, this contract, but it is not enforceable in the court of public opinion and that is where the government steps in.’
Harriet Harman MP, Leader of the House of Commons, 1 March 20091
In October 2008, the global financial system teetered on the brink. The US investment bank Lehman Brothers had filed for bankruptcy only weeks before, sending shockwaves across the world economy. Stock markets from Wall Street to London to Frankfurt to Tokyo plunged, credit markets froze and asset values tumbled. Major depositors tried to withdraw their money from the world’s biggest financial institutions, leading to panic that a global run on the banks could precipitate the collapse of the banking system across the world.
A number of major UK banks were particularly exposed, including the Royal Bank of Scotland. As of the evening of Friday, 10 October 2008, RBS had run out of money. Without urgent intervention, the bank would not be able to open its doors on Monday morning. Chancellor of the Exchequer Alistair Darling would later tell of his fear that the country came within hours of the ‘breakdown of law and order’.2 Over that weekend, the UK government negotiated an unprecedented £500 billion rescue plan, including £50 billion of taxpayer money, to stabilise the markets and recapitalise the stricken banking sector.
It came to be accepted that RBS was particularly exposed due to a series of catastrophic decisions made by its chief executive, Sir Fred Goodwin – dubbed ‘Fred the Shred’ on account of his reputation for aggressive cost-cutting. As part of the bailout package negotiated by the government, RBS agreed that Sir Fred (as then was) should step down. The compromise agreement that secured his departure included a recognition of his entitlement under his contract to a pension calculated at £650,000 per year.
And so, when, on 25 February 2009, the details of his pension – which had by that date been revised to £703,000 per annum – were made public by BBC Business Editor Robert Peston, the public reaction was one of understandable anger. As the House of Commons Treasury Committee would later observe, ‘It seemed inconceivable to many that a chief executive, who had steered his bank to such catastrophic ruin, should be so handsomely rewarded for conduct which had been so damaging to his firm’s shareholders, the UK economy, and the UK taxpayer.’3
But such were the terms of his contract. The Royal Bank of Scotland did not provide for any performance-based reduction, and the compromise agreement that ensured his departure preserved his contractual entitlement to the full figure on early retirement.4
As media outrage grew, so did pressure on the government to take steps to remedy this inequitable state of affairs. Appeals to Sir Fred’s better nature, beseeching him to voluntarily surrender part of his pension, gave way to stern assurances to explore legal avenues to recover the money, before ministers quickly realised that none existed.5
Then came an appearance from Leader of the House of Commons and Deputy Leader of the Labour Party, Harriet Harman. In an interview with the BBC’s Andrew Marr on 1 March 2009, Ms Harman was pressed about what action the government might take to recoup the pension, and said, ‘Sir Fred Goodwin should not count on being £650,000 a year better off because it is not going to happen . . . The Prime Minister has said that it is not acceptable and therefore it will not be accepted. It might be enforceable in a court of law, this contract, but it is not enforceable in the court of public opinion and that is where the government steps in.’6
Ms Harman, a qualified solicitor, was not alone in pledging allegiance to the Court of Public Opinion over the inconvenient courts of law. Former Deputy Prime Minister John Prescott told BBC Radio 4’s Today programme that, ‘If he refuses to give [the pension] back, the government should take it off him and let him sue us through the courts.’ The Liberal Democrat Treasury spokesman Vince Cable made a similar proposal, suggesting that the government should unilaterally limit the pension to £27,000 a year.7 ‘Nobody disputes that Sir Fred Goodwin should be deprived of his pension,’ Mr Cable declared. ‘The only issue is what is practical.’8
However, while few would sympathise with the arrogant, incompetent Goodwin forfeiting his multi-million-pound pension pot, the constitutional enormity of Ms Harman’s comments flew under the radar. Here we had a minister explicitly calling for the government to intervene to overturn a legally binding contract; for the disapplication of the law in respect of an individual considered too unpopular to warrant its protection. It took a blowtorch to the settled principle that the rule of law requires that all of us – from Crown to citizens – be governed by and subject to the democratically created laws of the land, as legislated in Parliament and interpreted and applied by the independent courts.
When the Prime Minister was asked about his party’s Deputy Leader apparently signing him up to a new doctrine of extralegal action, his spokesperson distanced the PM from the comments, observing that, ‘Obviously we are bound by the rule of law’9 – with all the sincerity of a teenager mumbling that ‘obviously I’m sorry’. That was all that was said.
There was no hearty defence or explanation of the rule of law, no explicit official reassurance that the Court of Public Opinion had not, in fact, been established in parallel as an adjunct to our legal system. As Mr Cable said, ‘the only issue is what is practical’. Principle didn’t get a look-in. What pushback there was amounted to little more than partisan posturing, such as Conservative MP Boris Johnson accusing Ms Harman of ‘leftie inanity’.10
The lack of outcry was, I’d suggest, because the implied primacy of the Court of Public Opinion was nothing new. Ms Harman correctly calculated that this base appeal to our worst instincts would play far better politically than a sober and reasoned explanation of the importance of equal treatment under the law, no doubt because she had seen how successfully her forebears and contemporaries had navigated difficult legal cases by casually tossing the rule of law under a bus. When faced by a difficult case involving a deeply unpopular or unpleasant individual, there are few points to be scored by referring the public to our first principles. Instead, there is a pretence – acquiesced by our betters and inflamed by the media – of an easy solution: we’ll just make an exception for this particular person. Special treatment becomes not merely justifiable, but necessary.
Throughout this book, I have alluded to the rule of law with a casual familiarity that assumes a settled definition which we all know and agree upon, and this, as any constitutional scholar will tell you, is not the case. The exact nature and scope of the rule of law is the subject of centuries of academic debate, but, as a working definition, one would be hard pressed to better that offered by Tom Bingham, former Lord Chief Justice of England and Wales, in his seminal book The Rule of Law: ‘[A]ll persons and authorities within the state, whether public or private should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.’11
A key cornerstone, of this definition and almost every other, is equal treatment. The law must apply equally to all of us. The same legal rights and obligations attach, and the same fair process applies, even if the outcome is one with which we strongly disagree.
It is popularly thought that our tradition of equality before the law stretches proudly and unimpeachably back to Magna Carta of 1215. Chapters 39 and 40 sought for the first time to limit the power of the King and bring him within the constraints of the law: ‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled. Nor will we proceed with force against him except by the lawful judgment of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.’
However, popular retelling often omits that King John repudiated Magna Carta within a matter of months, and the centuries that followed at times resembled a tired soap opera repeating the same storyline of the Crown overreaching and seeking to put itself – or its least favourite subjects – beyond the law. Notable examples include the Star Chamber, under the jurisdiction of which political enemies of James I and Charles I were tortured, tried and convicted in secret, until its abolition in 1640. Charles I found himself in direct conflict with Parliament in 1628, when he ordered the detention by ‘special commandment’ of five knights who had refused to pay a forced loan to finance the King’s military ambitions. The resolution was the Petition of Right of 1628, by which Charles reluctantly agreed to a package of limitations on his powers, designed to ensure ‘no freeman in any such manner as is before mentioned be imprisoned or detained’, before embarking upon eleven years of autocratic personal rule in which Parliament was sidelined.
The Bill of Rights of 1689, providing the terms on which William of Orange agreed to become King, sets out many of the principles that we recognise today in our modern legal settlement. Divine authority was out; the Crown was subject to the law. Rights were set out in legislation, including the authority and independence of Parliament, the right to jury trial, a prohibition on cruel and unusual punishment and a prohibition on excessive fines or excessive bail. In 1701, the Act of Settlement ensured the independence of the judiciary by conferring immunity on judges for acts done in their judicial capacity – putting them beyond the reach of monarchs seeking to influence judicial decisions – and the framework for the rule of law was in place.12
Obviously, full equality before the law was still some way off. Discrimination on the grounds of race, sex, disability, religion, age, sexual orientation and marital status, to name but a few, pervaded the law as it did – and still does – our society. But, by incremental improvements, we have attempted to demonstrate fidelity to the notion that each of us is equally entitled to the protections of the law and to due process when the state seeks to interfere in our lives. Certainly that is the story we tell ourselves, and others, when boasting on the international stage of the famed British adherence to the rule of law.
Yet we don’t have to look very hard to see that, even in the modern era, winning favour in the Court of Public Opinion can take precedence over our principles. Three particular examples out of many are worth considering further.
The abduction and murder of three-year-old James Bulger on 12 February 1993 occupies a unique space in our criminal justice history. Twenty-five years later, the grainy CCTV images of the two killers, ten-year-olds Robert Thompson and Jon Venables, leading the toddler by the hand out of Bootle’s New Strand shopping centre remain ingrained on the public consciousness. However, the case was remarkable not only because of the unspeakable horror of the crime itself or the youth of the offenders – the youngest convicted murderers of the twentieth century – but for the alacrity with which politicians and press coalesced to convince the public that vengeance, rather than principle, should govern the outcome.
Within days of the offence, Prime Minister John Major gave an interview to the Mail on Sunday, famously stating that ‘society needs to condemn a little more and understand a little less’.13 The shadow Home Secretary, Tony Blair, was an enthusiastic opponent in the tough-on-crime arms race, opportunistically suggesting that this isolated offence was ‘the ugly manifestation of a society that is becoming unworthy of that name’.14
Their reactions were in keeping with the media hysteria that grew as the defendants were arrested and the case headed towards trial at Preston Crown Court in November 1993. Before the trial started, the defence barristers presented the court with 243 separate newspaper articles which either expressed an editorial opinion of the defendants’ guilt; expressed the view of a politician or church leader that the defendants were guilty; were inaccurate or misleading; or were sensational or highly prejudicial. Venables’ QC described the coverage as ‘poisoning the stream of justice’, although, somewhat surprisingly, the trial judge ruled that a fair trial was still possible.15
However, the role of politicians was not confined to throwing platitudinous grenades from the sidelines. The case was complicated by the fact that, at that time, the Home Secretary still played a role in fixing the sentence for adults and children convicted of murder. Since 1983, a court passing a life sentence for murder (expressed as ‘detention at Her Majesty’s pleasure’ for offenders under eighteen) was required to recommend a tariff, which was the minimum period the offender would spend in custody before becoming eligible for release on licence. However, the decision as to when, or whether, a life prisoner would be released was for the Home Secretary, taking into account the recommendations of the parole board.
This, it may strike you, is a fairly obvious breach of the separation of powers – the constitutional principle that judicial decisions in individual cases should be made by independent judges in full possession of the facts, rather than by politicians. But, until the early 2000s, this was how the system operated. The trial judge would recommend a tariff, the Lord Chief Justice would weigh in, and then the Home Secretary would either follow the recommendation or impose his own view.
This would be an objectionable state of affairs in any context, but set against an explosive media campaign and in the hands of a politician shamelessly craving popular approval, it becomes outright abusive. And so it proved. After the trial judge, following the boys’ conviction, recommended a tariff of eight years, and the Lord Chief Justice proposed ten years, Michael Howard intervened to impose fifteen years, nearly double the original recommendation.
He did so, he boastfully admitted, as a direct consequence of a targeted tabloid campaign to make examples out of Venables and Thompson. After the convictions were greeted with tabloid headlines declaring the boys to be ‘Freaks of Nature’ (Daily Mirror) and asking, ‘How Do You Feel Now, You Little Bastards?’ (Daily Star), the Sun called for the Home Secretary to ensure the boys ‘rot in jail’.
The newspaper published cut-out ‘coupons’ for its readers to sign and send to the Home Secretary, each coupon demanding that the boys ‘stay in jail for life’. Some 21,281 coupons were duly sent. An MP, George Howarth, lent his support to a petition demanding a ‘minimum sentence’ of twenty-five years, and the Bulger family submitted a petition, signed by 278,300 members of the public, calling for whole-life tariffs – meaning that the boys would never be released. When announcing his decision to increase the tariffs, Mr Howard referred directly to ‘the petitions and other correspondence’ that he had received from the public campaigns. The Court of Public Opinion had passed sentence on the defendants.
The tariff was appealed and was ultimately, in 1997, held to be unlawful by the House of Lords. In a scathing judgment, Lord Steyn described Mr Howard’s decision to take into account a newspaper campaign when fixing a sentence as ‘an abdication of the rule of law’. The letters, petitions and coupons were ‘worthless’ as an indicator of informed public opinion, but public opinion was in any case ‘irrelevant’ to the exercise of what should be a dispassionate judicial function. ‘Like a judge the Home Secretary ought not to be guided by a disposition to consult how popular a particular decision might be. He ought to ignore the high voltage atmosphere of a newspaper campaign. The power given to him requires, above all, a detached approach.’16
After similar reasoning resulted in the European Court of Human Rights handing down a damning judgment in 1999,17 declaring that the involvement of the Home Secretary in fixing sentences amounted to a breach of the Article 6 right to a fair trial, Lord Chief Justice Woolf restored the tariff to eight years. Following a series of decisions of the ECtHR in the 1990s, the English and Welsh law governing all life sentences was belatedly reformed to remove political involvement altogether. Now, the ‘minimum term’ to be served by a prisoner sentenced to life is fixed by the trial judge – the independent individual who has heard all of the evidence in the case.
The media reaction to the involvement of the ECtHR was as might be expected. ‘Who gave a bunch of European lawyers, from countries with much less satisfactory and mature legal systems than ours, the right to dictate how British courts and elected British politicians should deal with child murderers?’ demanded the Sun. The Daily Mail seethed at ‘an outside court interfering in long-standing judicial and political procedures which have been democratically established and accepted by the British people’.18
The point was spectacularly missed. The conflation of the judicial and the political was precisely the mischief that the House of Lords and the ECtHR were so anxious to remedy, for obvious reason. You don’t have to agree with the decision of the judges as to the length of tariff in this case to appreciate the inherent danger of judicial decisions being taken not by independent judges, but by what Lord Donaldson described in Michael Howard’s case as ‘a politician playing to the gallery’.19 Because, while we may, in our darker moments, be content for examples to be made out of the ghouls among us, we should never be so complacent as to assume that we will be immune from the pointing finger of the political classes.
In 2016, the Sun and the Daily Mail threw their weight against a ‘politically-driven witch hunt’20 that had resulted in a number of criminal prosecutions. The defendants had been treated ‘like exhibits in a zoo’.21 The political winds were said to be influencing what should be an impartial and apolitical process. The Prime Minister had thrown the defendants ‘to the wolves to save his own skin’. The legal process had been ‘geed up by the petty grievances’ of campaigners.22
In this case, the defendants were tabloid journalists, charged (and acquitted), as part of the disastrous Operation Elveden, with paying public officials for stories, at a time when there was widespread political interest in and public concern over the activities of tabloid journalists. All of a sudden, the Sun decided that the notion of the public mood influencing the judicial process was perhaps not so desirable after all.
On 23 October 2018, the Telegraph revealed that a high-profile British businessman had been using non-disclosure agreements (NDAs) to cover up allegations of sexual harassment and racial bullying.
An NDA is the name given to a contractual settlement of a potential civil claim, where, in return for not taking formal legal action, the would-be claimant agrees to accept a financial sum from the prospective defendant. The agreement contains a confidentiality clause, preventing either side from revealing the substance of the allegations, and often the existence of the agreement itself. NDAs are not of themselves necessarily bad things; they can provide a useful means of privately resolving a legal dispute where neither party wishes to enter protracted, costly or public litigation. However, they are open to abuse, particularly where there is an imbalance of power. In the wrong hands, they can be a highly convenient tool for rich, powerful men to cover up their misdeeds with impunity.
So it was that, when an eight-month Telegraph investigation discovered that five such agreements had been entered into by a public figure, they sought to publish the details. However, the splash omitted something rather important – the man’s name. This was because, the previous day, the Court of Appeal had upheld an interim injunction prohibiting publication of the identity of the parties until a full hearing, to be held at a later date. Or, as the headline had it, ‘The British #MeToo Scandal Which Cannot Be Revealed’.
Over the next few days, social media heaved under the weight of speculation as to who the man might be, fuelled by the Telegraph’s relentless plugging of what they characterised as ‘a devastating blow [for] press freedoms’.23
On 25 October, the speculation ceased. Lord (Peter) Hain stood up in the House of Lords and announced that he was using the cover of parliamentary privilege – which confers legal immunity upon MPs and peers for things said in Parliament – to name the man at the centre of the story as Sir Philip Green, the billionaire chairman of the Arcadia retail group. Green was already an established figure of public displeasure due to his business dealings, including a finding by MPs in 2016 that he had extracted large sums of money from department store BHS and then sold the business for one pound shortly before it went into administration, leaving a half-billion-pound hole in the employee pension scheme.24
Lord Hain revealed the name behind the headline because, he told the House, he felt it his ‘duty under parliamentary privilege’ to provide ‘the full details of a story which is clearly in the public interest’.25
The acclaim he anticipated duly flowed. The Pool website declared him ‘a babe’ and ‘our new favourite ally’. His parliamentary colleague Lord Adonis applauded this ‘great public service’.26 Anti-abuse campaigners on social media thanked him for ‘having the guts & decency’ to tread where others feared.27 As interviewers queued up, Lord Hain declared that he had acted ‘to promote justice and liberty’.28 To the critics, he defiantly announced that he would ‘neither retract nor apologise for standing up for human rights’.
One can understand the narrative that he was hoping to cultivate. Brave politician stands up for victims of abuse silenced by billionaires buying rich-man’s justice. But closer inspection of the details reveals a far less attractive, and far more concerning, picture.
For one, despite the Telegraph doing its best to downplay the word ‘interim’ in its reporting of the Court of Appeal’s injunction, that’s exactly what it was. No final decision had been made. What had happened is that Arcadia and Sir Philip, upon being notified of the impending story, had initiated proceedings for breach of confidence. They argued that the details that the Telegraph wished to publish, which Sir Philip denied, were subject to a lawful confidentiality agreement, and that the courts should grant an injunction prohibiting publication. The Telegraph responded by arguing that, even if they were bound by the confidentiality agreement (to which they were not a party), it was in the public interest that the story be published, having regard to their Article 10 rights to freedom of expression.
Where such claims are brought, there is often a degree of urgency. Newspapers want to print immediately; the subject of the story wants to prevent publication. A full hearing assessing all of the evidence and arguments can take days, if not weeks, and it can be months until the courts have a slot available, so often an ‘interim’ injunction is sought as a first step. The court will conduct a provisional assessment of the merits of the claim, and, if it considers that the claimant is ‘likely’ to win at a full hearing, can issue an interim injunction, pending a full hearing.
That was where the case was up to when Lord Hain intervened. No final decision had been made. The High Court had initially refused Arcadia’s application for an interim injunction, the Court of Appeal had overturned that decision,29 but the full determination of the issues and competing interests had still to be determined. And there was a lot to consider. For one, two of the five alleged victims expressly supported an injunction – they were fearful that publication of Sir Philip’s name would lead to their identification. Although there were legitimate fears of NDAs being used to conceal malign behaviour, these settlements did not seek to prevent the complainants from reporting alleged criminality to the police or appropriate regulatory bodies. The complainants had all received independent legal advice, and it was not alleged that any were subject to undue pressure in arriving at the settlements.
But that exercise – the careful, impartial judicial evaluation of the law, evidence and competing individual and public interests – was hijacked and crashed into the ground while it was still taking off. By using parliamentary privilege to frustrate the court’s interim order, Lord Hain had deprived all involved of a fair hearing and an informed judgment. This mattered not just to Philip Green, but to the alleged victims too, and indeed the press. The Court of Appeal would have had the opportunity to reassess how the balance between the public interest and commercial confidentiality should be struck in the #MeToo era; the judgment may well have provided a vital precedent for the Telegraph in future legal battles.
But we will never know. The litigation now being pointless, it was abandoned.30 Due process had been successfully supplanted by vainglorious politicking, the assumption that the snap opinion of a media-savvy politician was worth more than due process under the law. When questions of the details of the case were put to a pleased-looking Lord Hain on BBC Newsnight, his startled expression and circumlocutory answers betrayed a man who had not thought this through. Why the haste? Why not wait for the full court judgment? What about the wishes of the complainants? Answer came there none.31
And so often this is how easy it is to lose sight of our basic principles. A simplistic narrative of #MeToo victims being silenced by courts indulging rich men appeals so instinctively to our sense of injustice that we can be tricked into nodding through a ‘solution’ which damages us far more than we realise. When the man involved is as widely reviled as Philip Green, the assumption can be made that a defeat for him, however caused, must be A Good Thing.
But it is not. Mr Green may well be an unpleasant man. He may well be a rich man who has relied upon his deep pockets and expensive retained lawyers to cover up allegations that the public should know about. Non-disclosure agreements may well be ripe for review and potentially reform. Access to the courts may well be – for reasons we have explored in this book – increasingly the preserve of the wealthy, affording privileges beyond the grasp of the average citizen.
Those things can all be true. But none are justifications for voiding due process, fast-forwarding to the ending that we believe is deserved.
On 17 February 2015, three British schoolgirls from Bethnal Green arrived at Gatwick Airport. They took a Turkish Airlines flight to Istanbul, and from there travelled to Syria. Their aim was to join the estimated 550 women and girls who had fled the West to join the Islamic State terror group, responsible for the deaths of thousands of innocent civilians across the world.
Four years later, almost to the day, Anthony Lloyd, a journalist for The Times, located one of the three tabloid-branded ‘ISIS brides’, Shamima Begum, in the al-Hawl refugee camp in northern Syria. She was the only known survivor of the three who had left London in 2015, and the intervening years had been cruel. She had been married to a twenty-three-year-old Dutch ISIS fighter, days after arriving in Syria, aged fifteen. She had witnessed the atrocities of the group: the severed heads in bins, the videos of hostage executions and the arbitrary torture of dissenters. She had been injured in airstrikes, had lost two children at the ages of eight months and twenty-one months, and was now nine months pregnant with her third.
As the caliphate crumbled and ISIS battled to maintain control of its last remaining territories, she took the decision to flee Baghuz and attempt to return to Britain. ‘I was frightened that the child I am about to give birth to would die like my other children if I stayed,’ she told The Times. ‘I’ll do anything required just to be able to come home and live quietly with my child.’32
Contrition was not high on her agenda. Perhaps unsurprisingly for a fifteen-year-old indoctrinated into a fundamentalist death cult, she expressed no regret for her action and little sympathy for the victims of her brethren. When asked by Sky News about the ISIS-inspired terror attack in Manchester in 2017, she suggested that it was ‘justified’.33 Arrogant, entitled, remorseless and defiant – as a public-relations exercise, it left something to be desired.
Nevertheless, as a British citizen, she was entitled by law to return home. Obviously, it would not necessarily be without consequence; a criminal investigation was likely to attach, with the threat of prosecution for terrorism offences and, upon conviction, the life-changing sanctions of imprisonment. Social Services would doubtless intervene to ensure the safety of her child. The intelligence services would likely keep her under close watch indefinitely. Coming home and living quietly with her child was not, on any view, going to be as straightforward as the nineteen-year-old had perhaps convinced herself.
The reaction of elements of the press and commentariat to Begum’s impending return was less than considered. Some represented a clown car of stupid. LBC radio host and Daily Mail columnist Andrew Pierce, for example, demanded the introduction of a new criminal law, to apply retrospectively, just for Begum’s case.34 That this would amount to a fundamental breach of the internationally accepted principle of non-retroactivity – that people are not prosecuted for crimes that didn’t exist when they committed them – did not occur to him. Nor that there were already plenty of laws under which she could lawfully be prosecuted. A scramble ensued among Conservative MPs to think of creative ways in which the label ‘treason’ might successfully be applied, despite the fact that existing terrorism legislation adequately provided for a suite of offences carrying substantial terms of imprisonment. Dr Julian Lewis MP suggested that ‘the Home Secretary consider upgrading the law on treason’, as if this were something that a politician had the power to do unilaterally, on a whim, and apply to past behaviour.35 Defence Secretary Gavin Williamson sprang up to share his views on this British citizen being granted legal aid in proceedings that would determine the course of the rest of her life: ‘Quite frankly, the British people don’t like it and neither do I.’36
But it was on the issue of citizenship that the biggest backlash was trained. The first clue that this might be on the political chopping board came in an editorial in the Sun, demanding ‘Strip her of her citizenship’,37 echoing a call in Richard Littlejohn’s column for the Mail.38 Home Secretary Sajid Javid, whose future leadership bid had for some months been the subject of media speculation, announced in The Times on 15 February that, ‘If you have supported terrorist organisations abroad I will not hesitate to prevent your return.’39
While the Home Secretary has the power under the British Nationality Act 1981 to remove citizenship if deemed ‘conducive to the public good’, international law prohibits this where its effect would be to render an individual stateless. This, you may think, is obvious. Until the colonisation of the moon, everybody has to have at least one country on earth where they can lawfully exist. As a British citizen, therefore, it was difficult to see how Shamima Begum could be subjected to this process.
Mr Javid attempted to get around the inconvenient legal principles by suggesting that, due to her parents’ Bangladeshi heritage, Shamima Begum qualified for Bangladeshi citizenship. She had never visited Bangladesh and did not hold a Bangladeshi passport, and her by-now newborn son was a British citizen, but the Home Secretary was undeterred. He revoked her British citizenship, preventing her from returning to the UK.40
Putting aside the moral argument over the responsibilities of a state to deal with its own problematic citizens – not least those arguably groomed as children into terrorist cults – the lawfulness of this act was questionable.41 Bangladesh, for its part, had publicly denied that Ms Begum was entitled to citizenship.42 There was also the matter of Mr Javid having published only a few months earlier the UK’s Counter-Terrorism Strategy for 2018, in which he included ‘illustrative examples’ of how ISIS returnees would be dealt with. One such case study involved a young British woman joining ISIS and seeking to return with a newborn. For that case study, the Home Office suggested that the correct course would be applying to a judge for a Temporary Exclusion Order (TEO) to manage the woman’s return to the UK, followed by a police investigation and (potentially) a criminal prosecution upon her homecoming. If there was no evidence of criminality, there would be a special de-radicalisation programme to assist her reintegration into society. In any case, the local authority and external organisations would be involved to safeguard the welfare of the child. Revocation of citizenship was not even mentioned as an option.43 The only perceptible difference between the ‘illustrative example’ and Shamima Begum was that the case study did not have the misfortune to be returning at a time when the Home Secretary was greasing the red tops in anticipation of a run at the party leadership.44
Nevertheless, it was wildly popular. The Sun trilled, ‘Well done, The Saj’, praising his ‘swift and bold action’.45 The Daily Express front page cheered, ‘Sense at last!’46 While the Home Secretary’s crass populism was criticised by The Times, the Guardian and the Daily Mail,47 a Sky News poll suggested that eight in ten Britons supported Javid’s move. Only one in six thought it was wrong. A similar number supported the government having the power to render UK citizens stateless if they join terrorist groups. The poll did not ask the respondents what they would do with, say, Thomas Mair, the terrorist murderer of MP Jo Cox, nor did it ask to which random, unwilling country he ought to be deported.
The lawfulness was, for some, not even a concern. Former England cricket captain and broadcaster Michael Vaughan told his million Twitter followers that, ‘Sometimes laws & Rules have to be broken.’48 Allison Pearson in the Telegraph agreed: ‘this fanatically stupid young woman . . . must not under any circumstances be allowed to return to Britain.’49 Alt-right social-media agitators cheered Mr Javid for ‘supporting and defending LOYAL British nationals’ against ‘the “religion of peace”’.50 For these people, the fact that Mr Javid’s actions, even if lawful, created two tiers of British citizens, rendering those of non-British parentage at a risk of losing their citizenship where those with British parents were not, was simply not a concern.
None of the case studies in this chapter are designed to be sympathetic. Greedy bankers, sadistic murderers, alleged sexual harassers and terror supporters – even making allowances for youth or naivety, I do not expect many reading to declare an affinity with the people presented.
But each shows how easily we can be led into assenting or turning a blind eye to ‘special treatment’ for those whom we are assured ‘don’t deserve’ the rights and due process afforded to the rest of us. While in each instance there were vocal elements in the press and political classes speaking out in defence of the rule of law, that the dominant narrative was advocated with such confidence says, I fear, something troubling about our susceptibility to instinctively approve of actions that substitute the Court of Public Opinion for the rule of law.
Again, we seem vulnerable to the implicit, false reassurance that it is something that only affects other people. It isn’t. If equality before the law can be disregarded for them, it can be disregarded for you. The rule of law is like a game of giant Jenga. You can pluck isolated cases out of the system once, maybe twice, with the structure remaining upright. But its foundations are weakened with every block removed. And you don’t want to be the one standing underneath it when it tumbles.