On 26 February 2021, the Supreme Court refused permission for Shamima Begum to return to the UK. The Supreme Court judgment in the high-profile case of the British woman who left the UK as a 15-year-old girl to travel to Syria to join the so-called Islamic State, however, resulted in the Court effectively washing its hands of the case staying it until a full hearing can occur in future—a remote possibility. In the judgment, Lord Reed held the Court of Appeal was in error by substituting its own view of the balance to be struck between national security and the applicant’s rights. In so doing, the Court of Appeal did not give the Secretary of State’s assessment due respect. In this brief post, I wish to focus on a principal aspect of the Supreme Court’s judgment: the concept of deference.
Deference v Abdication
Deference is the idea of courts affording a modicum of respect to the primary decision-maker be it due to their superior expertise, democratic legitimacy, or the fact that parliament has entrusted them with making the decision in question.
Key to Begum’s case, was the question of judicial deference on questions of national security. The Supreme Court placed a heavy reliance on Lord Hoffmann’s judgment in SSHD v Rehman where he found that whether something is ‘in the interests’ of national security is not a question of law but of executive judgment and policy.
The reasons given by Lord Hoffmann and endorsed by the Supreme Court in Begum in favour of executive supremacy in areas of national security are that:
‘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 consequences 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 Supreme Court in Begum thus admonished the lower courts for ‘substituting its own view of the balance to be struck between national security and the applicant’s rights’ and not giving enough weight to the Secretary of State’s assessment. By prioritising the applicant’s rights over the public interest, Lord Reed invoked the no less than Eleanor Roosevelt as authoritative precedent:
‘As Eleanor Roosevelt famously said, justice cannot be for one side alone, but must be for both. It follows that an appeal should not be allowed merely because the appellant finds herself unable to present her appeal effectively: that would be unjust to the respondent’.
Ostensibly, the Supreme Court appears to be on firm constitutional ground. However, by deferring to the executive to such an extreme extent, the Court has failed to perform its own constitutional duty to uphold the rule of law and protect common law values like civil liberties. Such a function is notoriously hard to perform in the area of national security due to the difficulty courts have in scrutinising evidence in this area and their lack of democratic legitimacy. But this difficulty does not absolve the courts of their constitutional duty.
It is therefore the case that the Home Secretary may have acted unlawfully but this question cannot be conclusively answered until the case can be heard in full. However, the case cannot be heard in full until Begum is in a position to take part in proceedings. The Supreme Court may find comfort in the idea that it is only staying proceedings, leaving open the possibility that one day, Shamima Begum’s case may be heard in full. This possibility, however, is remote. What is completely absentfrom the judgment is that any acknowledgment that the ruling makes the Home Secretary’s decision de facto final. If justice must be for both, as Lord Reed alluded to when invoking Eleanor Roosevelt, then how is this just?
The Humpty Dumpty Supreme Court
In Liversidge v Anderson, Lord Atkin famously accused the majority of acting like a ‘Humpty Dumpty’ court, referring to Lewis Carroll’s Alice in Wonderland, because they interpreted words to mean what the court choose them to mean.
The Supreme Court’s invocation of Eleanor Roosevelt in Begum is befitting of a Humpty Dumpty court—deploying the principal architect of the Universal Declaration of Human Rights to deny an applicant fair trial rights in the interests of national security. Her words mean what the Supreme Court choose them to mean, neither more nor less.
The most generous reading of Begum is that the Supreme Court effectively washed its hands of a particularly contentious case at a time when the function of judicial review and oversight of the executive is firmly in the Government’s crosshairs. It is a judgment that strays close to the zone of non-justiciability while maintaining the façade of review and slim possibility of a successful appeal. Be it Humpty Dumpty or Pontius Plate, whatever metaphorical figure you pick, this is not deference; it is abdication.