Daniella Lock: The Shamima Begum Case: Difficulties with ‘democratic accountability’ as a justification for judicial deference in the national security context

No doubt much will be written on the Supreme Court’s Shamima Begum ruling handed down on 26 February. The ruling has a number of notable features. In particular, a high level of deference was afforded to the executive which seems to contrast with the Supreme Court’s approach in high profile constitutional cases of recent years (such as, for example, in the Miller cases). A key feature of this deference is that it is offered in a national security context, where judicial deference has often played a role. This deference is partly justified by the Court on the grounds that Ministers are democratically accountable for national security decisions. However, as this post argues, the extent to which democratic accountability is a legitimate ground for judicial deference to national security decisions is questionable in light of current UK practice. This post raises three difficulties with relying on democratic accountability as a ground for deference in the UK national security context.

a. The Supreme Court decision

The ruling considered three key questions regarding Shamima Begum’s case, initially brought against her deprivation of British citizenship by the UK Government in 2019 (see para 13 of the SC ruling). The first was whether the Special Immigration Appeals Commission (SIAC) had been right to apply judicial review principles, rather than carry out a merits review, when considering whether Ms Begum faced a ‘real risk’ of treatment contrary to articles 2 and 3 of the European Convention on Human Rights (ECHR) as a result of the deprivation of her citizenship, rather than carrying out a merits review

On this issue the Court found that SIAC had been right to apply judicial review principles. On matters related to the protection of ECHR rights required by law, the Court held that SIAC was right to make its own assessment via a merits review (para 37). However the protection of Ms Begum’s article 2 and 3 ECHR rights in this context were not required by law, but on the basis of a Government policy to protect these rights when depriving citizenship, referred to in the human rights memorandum accompanying the Immigration Act 2014 (para 16). The Supreme Court considered that on an assessment of section 2B of the SIAC Act 1997 (SIACA) (governing appeals of deprivation of citizenship) and section 40 (2) of the British Nationality Act 1981 (which provides the power to deprive citizenship), there was ‘no indication’ that Parliament intended SIAC to make its own assessment of deprivation of citizenship (para 66). These provisions were then read with previous rulings advocating a deferential approach to national security, such as in Rehman (paras 51 – 62). The deferential approach cited in these cases was justified on the basis of two key factors. The first was that the Government has particular national security expertise which judges should defer to. The second was that Ministers are democratically accountable for the national security decisions they make. Reading these provisions in light of this jurisprudence, the Court found that it was appropriate for SIAC to apply judicial review principles in relation to Ms Begum’s case.

The second issue was whether the Court of Appeal was wrong to conclude that leave to enter (LTE) must be granted to Ms Begum because she could not otherwise have a fair and effective hearing of her appeal against the deprivation decision. The third, related, issue was whether the Court of Appeal was right to allow Ms Begum’s appeal against a previous decision to dismiss her application for judicial review of the Secretary of State’s refusal to grant LTE.

The Supreme Court found against the Court of Appeal in relation to both issues. A key factor underpinning the Court’s decision was its reasoning that the Court of Appeal had overstepped its role. This was in two key ways. First, the Supreme Court found that the Court of Appeal had made factual findings – such as the risk of mistreatment faced by Ms Begum –  that only SIAC has been in a position to assess and had opted not to (para 104). Second, the Supreme Court found that the Court of Appeal had not approached the Secretary of State’s assessment with sufficient deference in light of its own institutional limitations, as outlined by the rulings emphasising deference referred to in relation to the first issue (paras 107 – 111). The Supreme Court ruled that the Court of Appeal should have deferred to the Secretary of State’s assessment that Ms Begum entering the country represented a risk to national security. Moreover, the Court ruled that the need to protect against this national security risk outweighed the need to protect Ms Begum’s common law right to a fair trial. Consequently, the Court of Appeal should not, according to the Supreme Court, have granted LTE or allowed Ms Begum’s appeal against the dismissal of her judicial review application concerning the Secretary of State’s refusal to grant LTE.

b. Democratic accountability as a ground for judicial deference  

It is clear from the Supreme Court’s reasoning that the Secretary of State being democratically accountable for their national security decision is a significant factor in its finding that deference must be afforded to the Government’s national security assessment. This is a common justification for judicial deference to national security decisions, as evidenced by the range of precedent cited by the Supreme Court in its reasoning.

The democratic accountability justification for deference in the national security context is summarised by Lord Hoffmann in Rehman (para 62) as follows:

‘It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove’

The reasoning by Lord Hoffmann in Rehman can be broken down into several steps: 1. Decisions which may have a big impact on the community should be made by those who can be removed from office by that community; 2. National security decisions may have a big impact on the community; 3. Therefore, national security decisions should be made by those who can be removed from office by the community for those decisions. Let us put to one side whether the claim in step 1 is consistent with the logic of the UK legal system in general (i.e. with the role of judges in criminal law for example). In the abstract, there seems nothing obviously wrong with this argument. However, there is a hidden premise to it which has not so far been engaged with by the courts. The argument rests on the notion that it must be in fact possible for the community to remove Ministers from office on the basis of their national security decisions. Viewed in this light, the argument is on shaky grounds. In current practice the possibility to remove Ministers on the basis of their national security decisions (in all but the most exceptional circumstances) is highly questionable. This is on the basis of at least three factors, set out below.

c. Obstacles to democratic accountability for national security decisions

i. Secrecy surrounding the evidential basis for national security decisions

The first obstacle to democratic accountability for national security decisions is the fact that usually the evidential basis underpinning national security decisions is deemed security-sensitive by the Government and is not available in the public domain. This was certainly so in the Begum case. Both the decision to deprive Ms Begum of her citizenship and the refusal to provide her with LTE were certified as decisions made on the basis of information that was not in the public interest to be disclosed (see paras 2 and 4 of the Supreme Court decision). This meant that there was no public access to information crucial for understanding the reasons for these decisions. Clearly without such information, the extent to which the public can hold a Minister to account is limited.

Indeed it was precisely on the basis of limitations to accountability imposed by high levels of Government secrecy that the spread of closed material procedures (CMPs) across the UK legal system was repeatedly justified.  For example, in introducing CMPs to the civil courts, the UK Government argued that they represented an important means to ensure the accountability of the security services to the courts. While the courts may in this way have access to material necessary to hold the government to account for its national security decisions, the public has been so far left in the dark in this respect. As a consequence, the public is not in a position to assess whether a Minister’s decision was justified or made in error. With the exception of the Intelligence and Security Committee, discussed below, Parliament is also unable to access security sensitive material underpinning national security decisions (see Veronika Fikfak and Hayley J. Hooper’s previous UKCLA post). The prospect of holding Ministers to account for such decisions is therefore severely limited.

ii. Secrecy around the national security decisions themselves

In addition to secrecy around the basis for national security decisions made, there is also a vast amount of secrecy around the national security decisions themselves. For example, a large proportion of national security decisions are made in relation to Security Service activity and never placed in the public domain. Disclosing information about some national security decisions, such as a decision to intercept the communications of a suspected terrorist, is even a criminal offence (see section 59 of the Investigatory Powers Act 2016).The majority of other national security decisions are kept low profile, and Parliament is not informed of them. For example, they are administrative decisions, such as the imposition of a TPIM or Temporary Exclusion Order, made in relation to private individuals who are likely to have no means of publicising their decision.

It is clear that the media attention given to the Government’s decision to deprive Shamima Begum’s citizenship was exceptional. Ms Begum was already in the public eye before the decision was made. If she had not already been receiving media attention, it is not clear on what basis she would have been able to publicise the Secretary of State’s decision to deprive her of citizenship outside of bringing legal proceedings. It is most likely she would have been in the position of the many other individuals who have also been stripped of their citizenship entirely in the absence of any media reporting.

Indeed, the lack of any comprehensive information on national security decisions of this kind are striking. As yet, there is no up to date public record of how many individuals have been stripped of their citizenship for counter-terrorism purposes so far. The most recent Independent Reviewer of Terrorism Legislation’s report merely refers to numbers from 2018-2019 Government Disruptive Powers Report. These numbers are based on decisions made from the limited time period of January 2018 to December 2018. In this time twenty-one people were deprived of their citizenship on the basis this was ‘conducive to the public good (para 5.9). However there is no way of telling how many individuals from these numbers were deprived of their citizenship for reasons of counter-terrorism.

The lack of up to date publically available information on deprivation of citizenship decisions is part of a wider problem attracting attention regarding a lack of information provided on national security decisions. There is an absence of proper reporting even in areas where the Government is statutorily required to publish information, such as, for example, in relation to how many times it sought to rely on a closed material procedure in presenting national security-related evidence to courts. In this climate of secrecy, it is clear that the public is currently lacking access to even the most basic statistics regarding the Government’s national security decision-making. This throws into doubt the prospect of the public being able to monitor individual national security decisions for the purpose of democratically holding Ministers to account for them.

iii. National security oversight bodies cannot bridge the gap between the public and the Government

At this stage it might be argued that while there may not be a direct link between the UK Government’s national security decisions and ‘the people’, there is a network of bodies responsible for national security oversight aimed at bridging the gap between them. These include the Investigatory Powers Commissioner’s Office (IPCO), the Independent Reviewer of Terrorism Legislation (IRTL) and the Intelligence and Security Committee (ISC), who often have access to secret evidence and whose role includes reporting back to the public on the Government’s national security activity.

While these oversight bodies may play an important role in accountability, they cannot bridge the gap between the Government’s national security decision-making and the public for the purpose of ensuring democratic accountability. First, it is the Prime Minister who has ultimate control over the information published by these bodies. The Prime Minister retains power to exclude information from reports produced by these bodies and to delay such reports from being published (as it did in relation to the ISC’s Russia report). Second, aside from the IPCO, such bodies are usually focused on the general operation of legislative regimes rather than individual decisions made by the Government. The IRTL’s principal task is to produce an annual report on the general operation of a vast array of powers under terrorism legislation, rather than go through every national security decision. While the ISC is not precluded from considering specific national security decisions, in practice its oversight activity is also general in its focus. On this basis, such bodies are not well placed to provide the public with the information it would need to hold the UK Government democratically accountable for the national security decisions it makes. This is particularly true of decisions relating to individuals rather than groups of people, such as the decision to deprive Shamima Begum of her citizenship.

Concluding remarks

The hidden premise in the courts’ position on democratic accountability in the national security context ought to be acknowledged and subject to consideration by the judiciary. This post has shown that there are currently strong reasons to doubt that in practice there is democratic accountability for national security decisions made by the UK Government. If there is no or very little democratic accountability in this context, the courts should be cautious about accepting such accountability as a legitimate ground for deference to the Government in this context. Such caution should be particularly exercised in relation to decisions which impact on the future and safety of an individual, such as in the case of Shamima Begum.

The author would like to give warm thanks to Professor Michael Gordon and Professor Alison Young for their helpful comments on an earlier draft of this piece. Any remaining errors are the author’s own.

Daniella Lock, @DaniellaLock, Research Fellow, the CVRO and doctoral student and Teaching Fellow, University College London

(Suggested citation: D. Lock, ‘The Shamima Begum Case: Difficulties with ‘democratic accountability’ as a justification for judicial deference in the national security context’, U.K. Const. L. Blog (9th March 2021) (available at https://ukconstitutionallaw.org/))