How awkward! For Lisa Nandy, for Labour MPs in general only just getting used to donning the Union Jack waistcoat, and for all liberal constitutionalists who are believers in the rule of law and defenders of judges from allegations of “treachery” and “activism”.
The Begum Supreme Court ruling that “Jihadi bride” Shamima Begum cannot return to Britain to fight for her British citizenship has put them in a very contorted position. These, after all, are the people who believe it is right that judges stand in judgment over the executive; that they are a bulwark against oppressive government actions. That, after all, is the “rule of law”.
Yet here is a case where the highest court in the land supported the Government against the individual, backed the Goliath against a tragic single mother seeking to assert her rights, declared, indeed, that the courts should not intervene in such government policymaking.
The position of Nandy, the shadow Foreign Secretary, epitomises the agony on the liberal left. In the past she has, in principle, backed Begum’s return, saying (according to this Labour site last July): “The law was on the side of bringing her back to the UK, because it’s not legal to deny someone a fair trial or to make them stateless.” Here, though, is what she said on BBC 4’s Any Questions in response to the Begum decision (with emphases added):
“I suppose first of all to say we respect the court’s decision. The judgment that the Home Office put forward was that it would create national security risks for her to return to the UK to appeal against the decision to strip her of her citizenship. She wants to have that heard in the UK. The Home Office wants that to be heard remotely from the camp that she is currently in and the Supreme Court ruled with the Home Secretary essentially that this [her return] creates national security risks. We wouldn’t welcome the prospect of anyone returning to the UK who wishes us harm.”
Then she spoke on the government strategy contrasted with other countries’ repatriation policies “to face justice at home” , noting there may be 900 British people in NE Syrian camps. Chairing the discussion, Chris Mason pointed out that in 2019 Nandy had said: “[Begum] is a British citizen and is entitled to come back but as a British citizen she is subject to the laws in the UK.” Nandy replied:
“The court was absolutely clear about the national security risk. It wasn’t obvious two years ago, actually. The court ruling today was quite stark on that point, that they upheld the Home Office’s argument about the national security risk that it would create were she to have her appeal heard in the UK. There’s obviously got to be a due legal process … The Government is entitled to take national security seriously. That’s why they’ve got to have a plan about what they are going to do about the potentially hundreds of British citizens who are still in those camps and pose a real risk to Britain.”
Those contortions untangled
Let’s take this bit by bit. “We respect the court’s decision“: When Lady Hale presented the Supreme Court ruling on Boris Johnson’s prorogation of Parliament (R (Miller) v Prime Minister [2019] UKSC 41), many Tory politicians stepped forward to say “I disagree with this judgment.” They were rightly castigated by liberal constitutionalists and supporters of the Supreme Court judgment. The right, particularly in papers such as the Daily Mail, have for years presented court judgments as mere idle opining (rather than legal “opinions”) by an elite group with liberal biases. In reality they arrive at their judgments by specific processes of thought and according to precedent laid down over years. It’s a skill they hone as they rise through the judicial ranks. A lay person cannot, also idly, dismiss a coherent and well thought-out judgment simply by saying: “I disagree”. It’s the law. That’s how our system works. Parliament can change the law. Politicians should engage with it, not just go into studios and say it’s wrong.
Nandy would presumably take this view, and so, although she profoundly disagrees with the judgment, she knows she has to accept it. It would be hypocritical to “agree” with Hale in Miller but “disagree” with Reed in Begum – it would be grossly inconsistent and undermine the rule of law. (This has not, however, prevented liberal commentators disagreeing with Reed: see below). Nandy is also governed by her leader, Keir Starmer’s wish to avoid anything that suggests disloyalty to the flag, culture wars, or bending over backwards to favour “immigrants”. He has a Red Wall to rebuild, and anything that smacks of favouring terrorists plays ill with those who gave their vote to Boris Johnson last time around.
Back to Any Questions: The court “ruled with the Home Secretary essentially that this [her return] creates national security risks”, said Nandy. Unfortunately she does not seems to understand the Supreme Court judgment. It did not rule there was a security risk from Begum’s return. The court was not “absolutely clear about the national security risk“. However hard you look in the judgment, there is nothing “stark on that point“. No findings were made about the danger Begum might put the country in.
And that is the essential point about the judgment: that it is for the Government to assess those risks and take those actions. The courts should not arrogate to themselves the power to decide when and if there are security considerations. This is not an arbitrary power. The courts will look at legislation passed by Parliament; they will look at and balance the decision against human rights considerations; they will consider its reasonableness (is it “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”; (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223).
But they won’t come to their own judgment about the security issues and impose their view on the Government. There is legislation on what constitutes national security, hence that is a question of law, but the actual decision-making, “the question of whether something was in the interests of national security” is not a question of law. Reed quoted Lord Hoffman thus:
“It [security] is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.” (Secretary of State for the Home Department v Rehman [2001] UKHL 47 at 50).
Reed is rather surprised that the Court of Appeal (which found for Begum) did not understand this and had not addressed the leading cases such as Rehman and A v Home Secretary. He notes that, while the Special Immigration Appeals Commission, which initially considered the matter and refused Begum’s application, can look at the facts/evidence for the Government’s view of the security risk and its reasonableness, it can’t look too closely to establish the matter on a particular standard of proof. Again Hoffman (at 56):
“It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee.” (Not a deportee in Begum of course, but the same principle applies.)
The Home Secretary’s opinion must have a factual basis. It must not be wholly unreasonable. Human rights must be taken into account. But otherwise it is a matter of “judgment and policy” – and judges should not substitute their judgment for that of the Secretary of State, who is ultimately answerable to the people, to whom she owes a duty to protect from harm. As Reed points out:
“The discretion is one which Parliament has confided to the Secretary of State. In the absence of any provision to the contrary, it must therefore be exercised by the Secretary of State and by no one else.” Begum at 66. (See Section 40 (2) of the British Nationality Act 1981).
So it is Parliament’s will that the Home Secretary should have the discretion. She is not required to set out before a judge the incredibly complex considerations about all the security issues that might have impacted upon the Home Secretary’s decision-making (and if the Home Secretary just took the decision that the Daily Mail wouldn’t wear it, she needn’t reveal that either). As Lord Bingham put it:
“The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational … Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test.” (R v Ministry of Defence ex parte Smith)
So the Secretary of State’s discretion is wide (though not unbounded). It would be wrong to “place SIAC ‘in the shoes’ of the decision-maker and treat it as competent to re-consider the matter de novo or to re-take the decision itself” (Reed at 81). And:
“SIAC has to bear in mind, in relation to matters of this kind, that the Secretary of State’s assessment should be accorded appropriate respect, for reasons both of institutional capacity (notwithstanding the experience of members of SIAC) and democratic accountability.” Reed in Begum at 70.
Reed is scathing of the Court of Appeal’s attempt to draft some sort of compromise, on the basis that Begum posed only minimal risk – allowing her in but arresting and charging her, or keeping her under a control order. Arrest would be a police matter, not for the Secretary of State to order, Reid notes. Custody would be for a court to decide, not the Home Secretary. The separation of powers does not allow for a holistic answer to the Begum security issue, so the Secretary of State can do only what is in her powers: exclude her. Nor could the Secretaryof State trust in the imposition or effectiveness of a Terrorism Prevention and Investigation Measures (TPIM). In either case, she would be letting Begum in in the hope that the authorities would contain her but with no guarantee since the Home Secretary cannot give orders to those authorities. And as SIAC observed in another case, it was “obvious that no amount of conditions, or careful watching of a person who is in the United Kingdom, can achieve the assurance of knowing that they are outside the UK permanently”.
Conclusion
So there is nothing in the judgment that concludes in “clear” or “stark” terms that Begum is a significant risk to security, despite what Nandy said she saw in it. To suggest as much is missing the point, which is that the Supreme Court is asserting a principle: that it is not up to the courts to go looking for such evidence or evidence that might contradict the Secretary of State. It has done this by using standard judicial techniques of considering the legislation, the precedents and the principles, in particular the separation of powers as between the Executive, Parliament and the courts. Nandy is perhaps right to point out that the Government’s decision is short-sighted and stokes up problems for the future – but it is not for the courts to reassess that risk and come up with a better policy.
Twitter @alrich0660
The Supreme Court case: R (Begum) v SIAC. The appeal to the Court of Appeal: Begum v Special Immigration Appeals Commission [2020] EWCA Civ 918. The SIAC hearing: [2020] UKSIAC SC_163_2019. Thanks as ever to Bailii.org.
Notes from Justice on the SIAC Case and Court of Appeal: (SIAC) [2020].
Other commentary
The best of the liberal responses to Begum is perhaps that of David Allan Green, here, who applies a discourse analysis to the judgment (as he often does), coming dangerously close to accusing the justices of elitism and bias – but against Begum, not in her favour. He then looks at it more closely here. – including the weasel words of the power to remove citizenship in Section 40 of the British Nationality Act 1981: “The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.” It’s the Home Secretary’s view rather than an objective test that counts. But, then, that’s what Parliament willed since that’s what Parliament passed.
• This from Liberal Democrat Callum Robertson suggests “we” must change the law on citizenship – but doesn’t explain how or why the Government would do that.
• This from an Amnesty member suggests even the Daily Mail and the Sun were less than exuberant about the Begum judgment.
• UK Human rights Blog considers the judgment here.
• ObiterJ offers some handy links here, and in a more detailed post here notes:
“The outcome for Ms Begum is bleak and her personal situation has attracted considerable sympathy but the essential fact remains that it is the Home Secretary who is entrusted with making decisions in these difficult matters. The Minister is advised by the security services and has full access to all known information. The Minister is accountable to Parliament.”
Note on Bingham
There is paradox that the very liberal commentators who would criticise the Begum judgment would also revere Lord Bingham, the modern defender and definer of the Rule of Law (critiqued here) and also one of the sources chosen by Reed to support his judgment in Begum (ie Bingham’s A v Home Secretary judgment, critiqued by this blogger here). Liberal commentators tend to see A v Home Secretary as a “liberal” judgment (Bingham found a way to declare unlawful the imprisonment of “A” despite the security issues). In fact, using the same arguments as Reed on the Secretary of State’s right to exercise his discretion regarding security risks, he actually gave the Government its fundamental point. But Bingham’s position is “liberal” to the extent that he upholds the democratic settlement, the separation of powers, in particular that the will of Parliament is given the highest deference as exhibited in its legislation, but that the Government deserves deference regarding security matters.
This, however, took him in a quite illiberal direction in at least one case, the so-called “Gays in the military” case, R (Smith). He upheld a ban on gay people in the military with the assertion quoted above: “Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the [reasonableness] test.” It took a reference to the European Court of Human Rights to establish the ban was contrary to Article 8 on privacy and family rights. The law changed and minds even changed. Gay people got their medals back and appeared in army recruitment ads.
Whether the European Court can ride to the rescue of Begum (on the basis of Article 6, right to a fair trial ie of her citizenship case), of which she has certainly been balked, remains to be seen. The point is that the Strasbourg court uses different legal standards: is it “proportionate”? Is it “necessary in a democratic society”? It may therefore come up with a different answer to the Begum problem – but thereby open a whole new can of worms regarding profoundly different legal approaches operating in one jurisdiction, an issue discussed here: Hoffman, Laws and Sumption: they come to bury the ECHR, not to praise it.
AL's LAW 