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.
But.
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.
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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.
This is similar to what happened in the second Miller case – on the prorogation of parliament – and on the Heathrow expansion case.
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.
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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.
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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.
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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.
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I have not read the case (and I am unlikely to to do so), but I am appalled. The rot of course started with Javid when he stripped her of her citizenship. Home Office secretaries are getting worse when it comes to basis civic and human rights.
1. If anything I would imagine that this decision increases the internal security risk with Ms Begum now being seen as a victim of an Islamaphobic Government by those more extreme elements in our society; what better living martyr could they wish for. Showing compassion would I’m sure have taken a lot of the wind out of the sails of said extremists.
2. What precedence does this set for other nations who in order to get rid of their more undesirable citizens revoke their citizenship once out of the country.
3. If my reading is correct then making a judgement based primarily so it seems on the judgement of the executive and that of the Appeal Court without reviewing the security evidence itself amounts to poor decision making.
Thank you. My own initial, very superficial, impression of this judgment was that the SC had very quickly decided to support the Home Secretary’s decision, and then constructed reasoning accordingly. If the most powerful court in the land begins to appear to take the role of an arm of the executive in cases such as this, the government will scarcely need to be concerned to pursue its efforts to constrain judicial review.
My brief scan of the judgment & your initial consideration jibes. I am indeed fearful of the direction …
This judgment seems rather chilling to me. She was a minor when she left and I can’t imagine that returning to Britain was simply something that she could have done at any time without risk to herself or her children. I ask myself, if she was a white 15-year-old who had been radicalised, would her treatment have been different? This is not to say that she should not be tried or jailed on her return, as that is a separate matter.
The aspect that bothers me about this is the acceptance of the assertion, devoid of any proof, that this young woman is a “threat to national security”. If this was demonstrably so, the decision to rescind her citizenship is justifiable, but the kid is 22, has had a very traumatic series of experiences (not least of which the premature death of her children) and would always be likely to be kept under observation by the security services. Surely she just wants to come “home” and be with her family. To me, the more likely explanation is that the government didn’t want the bad press coming from their usual tabloid backers had they allowed her to return. This seems like a very poor basis on which to practice law.
This unconvincing rationale for this decision seems to me to be grounded in the court’s apparent and, I suggest, misguided desire to throw this govt a bone.
First, they came for the Begums…
In any case, outstanding commentary yet again from DAG.
I agree with your point about basically taking on trust the idea of Ms Begum being a threat to UK national security. I’m old enough to remember when we took it on trust that Saddam Hussain was an immediate threat to our security because the then PM said so. Either he was lied to— or we were. And that’s without considering the context of Ms Begum having been indoctrinated as a minor.
Very disappointing.
Disquieting even.
My impression is that over time it has become much more common for one justice to deliver the decision of the UK Supreme Court panel as a whole, rather than for each judge to deliver a separate reasoned opinion that either concurs with or dissents from the majority.
There has been some analysis on this. eg http://ukscblog.com/supreme-court-justices-debate-decline-in-dissenting-judgments/ and http://ukscblog.com/rogue-justice-do-we-need-more-or-fewer-dissenting-voices-in-the-uksc/ and http://ukscblog.com/the-value-of-dissent/ – most of that rather old now, and I’m sure there must be more in the academic press.
A single judgment of the court should have the advantage of clarity and certainty, compared to cases where separate opinions overlap and it may be harder to locate the common points of law on which they all agree. But it involves a loss of the flexibility required to mesh together different viewpoints into a coherent whole, and the colour and texture that concurrence or dissent permit.
And indeed the power of dissent to signpost where the law is going wrong, and how it could be developed. The example that everyone mentions is Lord Atkin’s dissent in Liversidge v Anderson, relevant to this case, in warning of judges becoming “more executive minded than the executive” and comparing his colleagues to Humpty Dumpty, construing the law to mean “just what I choose it to mean, neither more nor less”.
Is rescinding of this citizenship justifiable, even if there is a security threat?
The use of the Bangladeshi citizenship feels disreputable, and employed for the reasons Dr Mike notes. The young woman has “little real connection” to Bangladesh; she has a perfectly clear relationship to Britain since birth. She is our problem, even if a security risk. That the law, and our judges, can slide round this is dismaying. Would we consider this a just and appropriate conclusion by another country if the situation were reversed, and the UK in the place of Bangladesh?
It’s worth noting that there are some countries that will give out citizenship for a fee. So what prevents the Home Secretary from buying you a Vanuatu passport then shipping you off there?
An elegant solution also to an age-old problem of people wanting the proper show of respect. Of course you’ll need some way to get to your new home – “transportation” seems both the right word and sentence.
I can see why the judgment was as it was. The Home Sec has the right to determine who is a danger to the country. She therefore refused access to the UK to the person she declared dangerous. The Supreme Court hasn’t said that the case relating to citizenship shouldn’t be heard, and it hasn’t said that in that citizenship case the Home Secretary is correct.
But just because it might have judicial logic doesn’t make it right. Firstly the Home Sec hasn’t been asked to prove her case that there is a danger in admitting a 23 year old to the UK, presumably in custody, while she takes the citizenship to court. So the Home Sec has got away with a political posture designed to show how tough she is. And secondly Shamima Begum is stuck in legal limbo, having done a very stupid thing when she was a child, with no way of proving that she is not a danger.
One sad thing is that those of us here who will think this decision is sad, and possibly wrong, are probably in a minority in the country.
I’m concerned about the precedent this sets. Whilst, in my opinion, the wrong decision on many grounds, the implication appears to be that the SoS has unfettered power to rescind and remove an individual’s rights if they happen to be abroad at the time.
If that’s correct, then it is deeply worrying. I’d hope that a future government might legislate to correct this, but in the meantime I’m concerned about poorly equipped ministers (as we have now) abusing this essentially new power.
Thanks for that. I find this result appalling.
Magnanimity, without naievity is noble. This decision is not.
Given the low morals of our current so-called government and their bread and circuses plays, the SC gives us more grounds for concern.
Of course failure to immediately recognise the mother as a UK citizen prevented her from bringing her child home. He might not have survived anyway but would have stood a much better chance in Britain. Can see no reason that the baby, who was born to a (still) British mother would not have been considered British, but the government’s stance on the mother may well have been in part responsible for the death of the (British) child.
And if the child is British, the British Consul is duty bound to provide support
This young woman does not have Bangladeshi citizenship, although she has the right to apply for it.
I know many people who have the right to apply for dual nationality through their parents’ birthplace. If they have not chosen to do so, they do not have dual citizenship.
I say this in addition to my view as a non lawyer that this is an appalling and inhumane judgement.
And not only appalling and inhumane but positively cruel. Failure to adhere to the symbols of our democracy, Justice and Mercy, no mercy and not much justice.
Excellent commentary. This is a sad contrast this is to the judgment of Lord Mansfield in Somerset’s case, and indeed to any decision of Lord Atkin that I know of.
well said, DAG
one gags on the phrase “give the home secretary’s assessment the respect that it deserves” in view of that individual’s notoriously ambitious, populist and authoritarian approach
home secretaries are no longer the liberal, strong, thoughtful politicians who used to take a decent view of such matters
How can a nation claim to be built upon the rule of law if something as fundamental as one’s citizenship can be taken away at any moment by an apparently unreviewable decision of the Home Secretary and security services?
Fortunate for the Government that Ms Begum has Bangladeshi citizenship; otherwise they would have had to deal with the threat – apparently ‘serious’ though unspecified – that she would pose to national security. This threat it seems outweighs the principle “audi alteram partem”.
Despite the fact she was a minor, and despite the dire circumstances she found herself in, I personally have very little sympathy for SB herself. But…
…this is clearly a punishment. And one that goes against, in my layman’s understanding, international law. Simply having the *potential* ability to claim a citizenship is clearly not the same thing as having a citizenship.
Regardless, British citizenship is nothing something that to be gifted by the state and removed at its will. It is her birthright.
She was, and should remain, British. And there should be an appropriate judicial process to be applied here that shouldn’t try to work around this.
There have been enough unarguably British terrorists — and enough child offenders — that the legal system can manage this without trying to “bail” over a highly complex case.
Very concerning that the Supreme Court has, apparently under political pressure, decided otherwise.
absolutely
It was clearly a difficult decision for the Home Secretary to make and the Supreme Court seems to have sided with allowing the Crown to make that sort of choice.
A pertinent question would be “is there any scope for the Crown to reverse that decision?”
Would be great to hear from anyone who knows about such things.
Thank you Mr Green. Yes the wording that you quote is astonishing. The wording imples that the Home Secretary’s judgement is infallible. That cannot be correct. However, the underlying issue is that the law is wrong and needs to be changed. It is wrong that a person who has been born, brought up and educated in this country can be excluded from citizenship by a legal sleight-of-hand. The fawning obeisance to the xenophobic press demonstrated by the decision of the Home Secretary is a vivid illustration of our nation’s decline, a 21st century version of the burning of witches.
As an American, the view that deference to the political branches is “illiberal” is interesting. As a normative matter, I don’t necessarily disagree. But we often see the US Supreme Court deferring to the judgments of Congress or the President (often vis-a-vis his cabinet secretaries) on issues like this—whole bodies of administrative law revolve around how much deference agencies get (see seminal cases like Chevron, Seminole Rock, and Kisor). Our history of the Courts exercising robust judicial review is much more extensive than the UK’s from what I gather, which may explain part of the difference in perception. Deference from the judiciary is viewed as an important safeguard of the political process: If the Courts strike down duly enacted laws (or compel action—for these purposes the distinction is immaterial), it impedes democratic accountability. Oftentimes, democracy is illiberal, though. We obviously struggle with balancing the two. But rather than focusing on “liberal” or “illiberal”, much of the fighting is about the text of the Constitution and what rights are being asserted—a problem your Constitution avoids.
This particular phrase is plain mean and even verges on the churlish: “Although she had travelled there as a minor, she had remained in ISIL controlled territory since turning 18”.
Like she would have had so many options open to her by this stage.
The decision was almost predictable but unsettling in the extreme.
As David says it isn’t a court’s duty to give respect to Government officers or their departments. It is to adjudicate the legal dispute between the state and a former citizen. David is also right that it is an unfortunate turn of phrase and actually an inaccurate choice of words.
Had the court said that the previous judgement had not given enough consideration to the UK’s national security and the potential threat posed by Ms Begum, that would have been more accurate. It was that security case that tipped the Home Secretary’s decision.
My take on it is, that any rational Home Secretary given the same information, the same people, and the same situation would have made the same decision – and therefore if one assumes that rationality is the key here rather than prejudice towards one party, the Supreme Court may be seen to be correct in it’s view and it’s judgement.
The question and it is a moot question without access to the security information, is did she really pose the threat the security services said she did? We’ll almost certainly never know.
The security aspect is one thing but it surely rests on the dual nationality. The Home Secretary could not have taken the same course of action, all other things being equal, with a person who held only British nationality. The courts seemed satisfied with their interpretation of Bangladeshi law in spite of statements from the government of Bangladesh. This seems a very troubling aspect.
https://www.middleeasteye.net/news/shamima-begum-uk-bangladesh-ban-entry-british-citizenship-appeal
Kevin, you have a point, one slightly troubling aspect being that at the age of majority – which she has now passed she has (I believe) a limited number of years to actively confirm/accept her Bangladeshi citizenship or it lapses. She has said she won’t take Bangladeshi citizenship.
If, somehow Shamima Begum were smuggled back into the UK, I do not think that the UK could deport her. Contrary to some assertions here, Begum does not have Bangladeshi citizenship. She could apply, but would very likely be refused. Bangladesh ministers have indicated as much. I guess in theory a refusal could be challenged in Bangladeshi courts.
In any case, Begum has, it appears, no intention of applying for Bangladeshi citizenship and I doubt there is any process that could legally oblige her to do so.
It seems to me that this judgment depends on the ability to keep Begum out of the UK.
‘dagerously’
Love it.
The Home Secretary asserts that Ms Begum has Bangladeshi citizenship but that is not true is it? A person who may have a right by statue to citizenship of another country if that person applied for citizenship, and all things being equal might be granted citizenship is not the same thing as having citizenship. She cannot be said to have Bangladeshi citizenship. It seems to me therefore that the Home Secretary has made a British Citizen stateless. In addition, it is argued that she is or would be a threat to national security but at the same time minister has said there is little evidence to convict he of any crime. So what is the evidence she would be a threat to National security?
There is a lot to be concerned about with this. What also troubles me is that the safeguards that could have been applied to allow her return, namely detention or TPIMs weren’t evidenced.
“109. Thirdly, there was no basis for the Court of Appeal’s finding that the national security concerns about Ms Begum could be addressed and managed by her being arrested and charged upon her arrival in the United Kingdom, or by her being made the subject of a TPIM. As to the first of those alternatives, there was no evidence before the court from the police, the Crown Prosecution Service or the Director of Public Prosecutions as to whether it was either possible or appropriate to ensure that Ms Begum was arrested on her return and charged with an offence. Those were not, of course, matters for decision by the Secretary of State. Nor was it known whether, if she were arrested and charged, she would be remanded in custody: that would be a matter for the courts. As to the second alternative, there was no evidence, nor any submissions, before the Court of Appeal as to whether or not a TPIM could or would be imposed on Ms Begum, or as to the effectiveness of any such measure in addressing the risk which she might pose, having regard, for example, to the resources available to monitor compliance with TPIMs and the demands on those resources. The Court of Appeal also appears to have overlooked the limitations to its competence, both institutional and constitutional, to decide questions of national security, as explained in Rehman, A, and Lord Carlile’s case.”
All it took was for the relevant government bodies to not provide any evidence. Those relevant agencies are all under the control of the Home Secretary. We shouldn’t under estimate the power of a ministerial instruction to ensure such evidence wasn’t provided. There wouldn’t even need to be a paper trail for such an instruction as the relevant authorities would simply have not to be asked to provide said evidence.
How could the national security interest be fairly balanced without consideration of the possible safeguards?