26th February 2021
This morning the Supreme Court of the United Kingdom handed down its decision in the appeal case of Shamima Begum.
The judgment is detailed and lengthy, dealing with three distinct appeals, and is 137 paragraphs long.
With a decision of this scope and complexity one can only form indicative impressions on the day it is made public.
The decision will take time to digest and to comprehend.
That said, and with the proviso that immediate impressions can often be dispelled, here are some views from the perspective of a liberal commentator on law and policy.
The first impression comes from the decision being unanimous.
This is not a judgment where some justices with a more liberal perspective have their say and their more conservative counterparts say something else.
A basis for a judgment was found to which all supreme court justices who heard the case was content to put their names.
Perhaps it is a mere coincidence – but the supreme court is at now at least in the habit of putting on a united front in cases that (can be said to) involve issues of high policy and the public interest – even if it is not a deliberate policy.
This is no doubt sensible – if the judicial element of the state is to check and balance another element of the state (or to not check or balance another element of the state) then it is better for it not to be seen as something on which senior judges disagree between themselves.
It also perhaps indicates that there is more going on behind the scenes in seeking to obtain unanimous judgments, rather than a laissez-faire attitude of just publishing what each judge thinks.
The second impression is that, as well as being unanimous, the judgment is executive minded.
For example, here is how the court of appeal described the background of Begum:
But in contrast, in the supreme court judgment these same personal details – such as where Begum was born – are expressly presented from the perspective of the home secretary’s desk:
What we know about Begum in the supreme court judgment is expressly framed as being the content of a submission before the home secretary.
We are not directly told Begum was born in the United Kingdom other than that this is an incidental detail in an assessment on national security.
For the details of the individual to be put in such terms in a judgment in respect of their rights is not wrong, but it is quite the tell.
The supreme court judgment also starts in a robust, no-nonsense way about the home secretary’s decisive action:
Nothing rides on it, of course, but note how we are told that the home secretary is both a privy councillor and a member of parliament (gosh, fancy that) and nothing at all about Begum.
That the court is seeing things from the home secretary’s perspective is also perhaps indicated by an unfortunate choice of words at paragraph 134:
The court of appeal has been told off by the unanimous supreme court for not giving ‘the Home Secretary’s assessment the respect which it should have received’.
It is not only an unfortunate choice of words, it is also somewhat chilling in a court which is in effect the final guarantor of our basic rights and freedoms either under the common law, human rights law, or otherwise.
The job of the courts is not to ‘give respect’ to assessments of the home secretary – but to approach such determinations with anxious scrutiny.
Perhaps the use of words here is a slip – but one fears instead it is again a tell.
The third immediate impression is that it is a defeatist judgment.
The court of appeal found a compromise which balanced the rights of Begum with those of the executive.
It was an impressive and elegant judgment, and I did a video for the Financial Times:
The supreme court was to have none of this.
For the supreme court justices it is not the job of a court to indulge in such elaborate balancing exercises between the executive and the individual.
Instead, in such a dilemma, there is no judicial compromise:
Not every legal problem, it seems, has a neat legal solution – and the supreme court is averring that courts should not affect otherwise.
The overall first impression is that the supreme court has made a firm turn away from liberalism – liberalism being the general notion that the rights of the individual are to be balanced against those of the state.
(As opposed to the notion that the rights of either side will always trump the other.)
If this first impression is affirmed on careful examination of the judgment then the considered reaction will have to be one of disappointment.
For if the supreme court is taking an illiberal turn, then they will be failing – to invoke a phrase – to accord individuals the respect they deserve.
If you value this free-to-read explainer, and the independent legal and policy commentary this blog provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
Each post takes time, effort, and opportunity cost.
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.