The Supreme Court has come under significant criticism for its handling of the Shamima Begum case, decided on 26 February. Much has already been said in relation to the deference that the court showed to the executive, with some arguing that it was improper or even a complete abdication of the judicial role itself. This post seeks to clarify what precisely the court did and did not do in relation to the exercise of its constitutional duty to review the legality of executive action. It will suggest that the Court did not engage in any strong deference as to the nature of Begum’s rights nor to the balance to be struck between those rights and the common good. Such questions remained wholly within the purview of the Court. While the Court did pay due respect to the executive’s authority to determine and pursue the common good, this was subject to an assessment of lawfulness. Any deference, if it can even be called deference, was to the rule of law, given both the statutory scheme in question and the common law distinction between review and appeal. The determination of the scope of individual rights entails an exercise of judicial interpretation which seeks to strike an appropriate balance between the applicable legal considerations. It is not deference for the court to include constitutional principles such as the separation of powers within those considerations.

Deference and Rights

The judiciary may sometimes defer to the executive on questions of law in relation to Convention rights. There are serious issues concerning the legitimacy of a court doing so, given its constitutional role in determining the nature of individual rights and the scope of lawful executive action. However, in this case the Supreme Court was clear that the scope of Begum’s rights, including her right to procedural fairness, was for a judicial body to determine, not the executive. That is exactly what was done both by the SIAC and the Supreme Court. At paragraphs 90-94 of the judgment, the Court assessed the precise scope of the principles of natural justice and procedural fairness as they pertain to this case, concluding that the frustration of an appeal does not necessarily breach the right to a fair trial:

“There are, indeed, many situations in which a party to legal proceedings may be unable to present her case effectively: for example, because of the unavailability of evidence as a result of the death, illness or incapacity of a witness. If the problem is liable to be temporary, the court may stay or adjourn the proceedings until the disadvantage can be overcome. If the problem cannot be overcome, however, then the court will usually proceed with the case. The consequence is not that the disadvantaged party automatically wins her case: on the contrary, the consequence is liable to be that she loses her case, if the forensic disadvantage is sufficiently serious…. Where, on the other hand, the difficulty is of such an extreme nature that not merely is one party placed at a forensic disadvantage, but it is impossible for the case to be fairly tried, the interests of justice may require a stay of proceedings.”

[90]-[91]

The Court here did not defer to the executive in its assessment of the scope of the right to a fair trial. Rather, it undertook its own assessment of whether the situation Begum found herself in amounted to a breach of common law rights and concluded that it did not. When cases such as this arise, the common law will ensure the right is not breached either by granting a stay of action or, where a stay will not remedy the situation, proceeding with trial. This was because an inability to mount an effective appeal does not automatically render the trial unfair to such a degree that it would amount to a breach of natural justice. This, coupled with the conclusion that there had been no breach of the other principles of judicial review, rendered the decision in question lawful and thus not subject to judicial reassessment.

Nevertheless, the court recognised the difficulty of this situation, as it would with any case where the ability of a party to mount an effective appeal would be hindered. The solution offered was thus to stay the separate case assessing the lawfulness of the revocation of citizenship until such a time as an effective appeal can be brought, given the fact that it is not impossible to do so. It seems that if an effective appeal would have been impossible the Court may have been satisfied to proceed with the initial appeal, notwithstanding the difficulties faced by Begum. This could only occur if those difficulties did not amount to a breach of Begum’s common law right to a fair trial. Whatever we may make of the conclusions that the court came to when it decided these issues, it did not defer to the executive in its analysis of Begum’s rights. Usually when describing instances of strong judicial deference, this is what one has in mind.  

Deference and the Common Good

Another area where courts are often critiqued for exercising undue deference is that of national security or more broadly the determination of what constitutes the common good or the public interest. It is important at this point to be clear about what deference means in this context. The concept of judicial deference can be somewhat unclear, resulting in a tendency of the doctrine to add an unnecessary layer of complexity to the law (see Lord Bingham in Huang). This has resulted from the variety of terms used to describe different kinds of deference, with some conceptions qualifying as deference only if we understand the concept to include judicial respect for fundamental constitutional principles such as the rule of law.

In this case, the Supreme Court admonished the Court of Appeal for attempting to enforce its own view as to the common good and the threat that Begum posed to national security. In so doing, the Supreme Court reiterated the longstanding distinction between appeal and review of executive decision making. Any deference here is deference to this distinction and not deference to the executive’s authority to determine the scope of Begum’s rights. The Court respected the executive’s capacity and authority to determine the common good, including questions relating to a threat to national security. Such assessment is always subject to the constraints of legality, manifest in the principles of judicial review and those standards were upheld by the Court. In assessing the lawfulness of the Home Secretary’s decision, the Court was exercising its constitutional role, ensuring that executive pursuit of the common good is properly respectful of the rule of law. It did not, as Greene suggests (here) admonish the lower courts for “substituting its own view of the balance to be struck between national security and the applicants’ rights”, implying that it is for the executive to decide whether Begum’s rights were breached or if there is justification for their breach. In fact, the Supreme Court was clear that the application of judicial review standards, including those relating to procedural fairness, is for the judiciary to decide. It admonished the Court of Appeal because it:

“made its own assessment of the requirements of national security, and preferred it to that of the Home Secretary, despite the absence of any relevant evidence before it, or any relevant findings of fact by the court below. Its approach did not give the Home Secretary’s assessment the respect which it should have received, given that it is the Home Secretary who has been charged by Parliament with responsibility for making such assessments, and who is democratically accountable to Parliament for the discharge of that responsibility.”

[134, emphasis added]

It is one thing to respect the distinction between review and appeal such that determinations of the national interest or threats posed to it are properly within the purview of the executive, subject to judicial review; it’s another thing entirely to defer to the Home Secretary on the content or scope of an individual’s rights or the balance that is to be struck between those rights and the common good. Despite the Courts’ somewhat imprecise description towards the end of the judgment [135], it did not defer on the balance to be struck between national security and Begum’s rights, nor did it justify the breach of Begum’s rights by reference to the common good. It determined that the frustration of an appeal does not independently breach the principles of natural justice; that Begum’s rights were implicated but not breached. A relevant consideration for this determination is evidently that the executive acted reasonably and on the basis of sound evidentiary considerations. The Court concluded, following Rehman, that the SIAC has a number of important functions in this regard, including assessing whether the Secretary of State has erred in law by making findings of fact which are unsupported by any evidence or are based on an unreasonable understanding of the evidence available [71]. The separation of powers entails that court should not remake an initial decision where the principles of judicial review have not been breached, merely because it would have come to a different conclusion itself. If that is what we mean by deference, then yes, the court deferred to the executive, for very good constitutional reasons.

Democratic Accountability

Daniella Lock, in her post (here) suggests that the Court’s reliance on democratic accountability as a justification for not remaking the Secretary of State’s determination in relation to national security can be subject to challenge. There is much to be said in favour of a critical engagement with whether the executive is held democratically accountable for decisions made in relation to national security. However, two points need to be made in response. The first is that, while there may be difficulties in this regard, this does not mean that it is not possible for the executive to be held to account politically, as can be seen when one examines the consequences Tony Blair faced following the Iraq War, including allegations that he misled Parliament, the ending of his Premiership, and the consequent Iraq Inquiry.

The second, and perhaps more important point, is to challenge the presumption that difficulties in democratic accountability translate to a lack of democratic authority to make determinations as to the common good. Further still is the need to challenge the presumption that any such difficulties vest authority in the court to impose its own determination as to what is in the public interest, notwithstanding its own lack of democratic accountability, democratic authority, or epistemic capacity. It may be true that Parliament faces difficulties in holding the executive to account; but this does not mean that the court is therefore empowered to disregard a determination of a democratically elected member of the executive without recourse to the rule of law or the principles of judicial review. What’s more, even if the separation of powers and the rule of law were irrelevant here, government ministers taking these decisions have far more information and expertise in these areas than the courts do and in fact are, as argued above, subject to judicial oversight to ensure that any determination made is reasonably grounded and supported by evidence.

If the Court engages in a detailed assessment of the scope and limits of an individual’s common law rights and concludes that there has been no breach, this cannot be reasonably described as an exercise of strong deference or an abdication of the judicial role, even if the Court, in its assessment, comes to a conclusion that some would disfavour. If there has been deference in this case, it has been to the rule of law and the separation of powers, including the executive’s role in determining what is in the common good, subject always to the constraint of legality.

Michael Foran, Lecturer in Public Law, University of Strathclyde

(Suggested citation: M. Foran, ‘Shamima Begum, the Separation of Powers, and the Common Good’, U.K. Const. L. Blog (17th March 2021) (available at https://ukconstitutionallaw.org/))