Let us step back a moment to the early days of the Queen's reign. Her Majesty became Queen on 6 February 1952 upon the death of her father - King George VI (1895-1952). The Coronation service was held at Westminster Abbey on 2 June 1953 and Her Majesty swore the Coronation Oath to govern her territories "according to their respective laws and customs?”
One part of the ceremony was subjected to a great deal of comment at the time. This was the solemn moment when HRH The Duke of Edinburgh knelt before the Queen and swore to be her "liege man of life and limb and earthly worship".
Here was a distinct referenceto the ancient common law concept of allegiance to the Crown. To this day, allegiance lies at the heart of the law of treason since only those who owe allegiance to the Crown may be found guilty of treason. Allied to allegiance is the idea that the Crown owes a duty to protect those who owe it allegiance though the exact scope of this duty is unclear.
Up to the present day the law of allegiance continues to exist and, interestingly, Judges and Magistrates, MPs and Peers are required to swear an oath of allegiance. See, for example, the swearing in ceremony on 13 January 2020 of Lord Reed as President of the Supreme Court.
In recent times, statute law has been enacted to enable the Secretary of State to remove British citizenship from certain individuals. This happened to Shimima Begum who was born in the UK in 1999. At the age of 15 she allied herself to ISIL. She is currently detained in the Al-Roj camp run by the Syrian Democratic Forces, where conditions are poor.
Ms Begum now wishes to return to the UK. Please see my previous post of 23 February 2019 for the law relating to deprivation of citizenship.
On 19 February 2019, the Secretary of State for the Home Department decided to deprive Ms Begum of her British citizenship, on the basis that Ms Begum's return would present a risk to national security. Ms Begum sought leave to enter the UK so that she could pursue an appeal against this decision, but her application for leave to enter was refused. Ms Begum challenges both the decision to deprive her of citizenship and the decision to refuse her leave to enter the UK.
The Special Immigration Appeals Commission found that, while Ms Begum remains detained by the Syrian Democratic Forces in a camp, she cannot give effective instructions or take any meaningful part in her appeal. This means that her appeal cannot be fair and effective. The Court of Appeal therefore held that Ms Begum should be granted leave to enter the UK so that she could pursue her appeal. The Secretary of State is appealing that decision to the Supreme Court.
The appeal is due to be heard on 23 and 24 November 2020 - see Supreme Court UK. The court's constitution is to be Lord Reed, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lord Sales.
JUSTICE is making an interesting written submission to the Supreme Court. This intervention focusses on the origins of citizenship in the ancient common law of allegiance and its duty of protection, and the extent to which the Executive may frustrate that law without affording the longstanding principles of natural justice, including the protection of the laws of the State, access to the courts and the right to fair, meaningful and effective participation. Justice states that it is being represented pro bono by Felicity Gerry QC and Eamonn Kelly.
Justice argues (para 13 of their written submission) that - "For the natural born subject deprived of his or her right of re-entry and abode, the common law doctrine of allegiance provides a discreet pathway to the protection of the laws of the United Kingdom and, in particular, access to the nation’s courts and tribunals. It is submitted that this common law substratum provides the basis for the principle that the Court of Appeal described as “well-recognised in English public law”: that the subject has the right to fair, meaningful and effective participation in appeals against decisions by the executive branch of government."
The submission also argues on the basis of Magna Carta 1296 section XXIX - "NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him,]but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right."
It is argued that notwithstanding her present deprivation of citizenship, Ms Begum remains, by reason of her natural born subject status and the doctrine of allegiance,subject to the (still in force) protections of section XXIX.
31 October 2020