Tuesday, 2 March 2021

Shamima Begum, Citizenship and Judicial Oversight

 "But there is no perfect solution to a dilemma of the present kind"

So Lord Reed writes in the judgment of the Supreme Court in Shamima Begum's case. Simple words that go to the core of many struggles that judges have in all manner of cases: there, very often, is no 'perfect solution'. 

The facts of Ms Begum's case do not really need repeating. She left the UK to join ISIS along with two friends in 2014. She had three children, all of whom died. She announced her intention to return in 2019, which sparked fierce debate in the UK and culminated in her citizenship being revoked and entry into the UK denied. It is worth starting by pointing out that I find the Secretary of State's ("SoS") initial decision to revoke Ms Begum's citizens troubling, to say the least. Relying on her entitlement to Bangladeshi citizenship (an entitlement that, to my knowledge, she has never taken up and one that Bangladesh rejected), Sajid Javid decided that he could revoke her citizenship ("the revocation decision") without leaving her stateless as a result (which would be contrary to international law). Leaving aside the absurdity of treating an entitlement to citizenship as the same as actually having that citizenship for one moment, Mr Javid's decision, with respect, set a dangerous, and racist, precedent. Do you know who else is entitled to another country's citizenship? Anyone with just one Jewish grandparent - whether or not they are themselves Jewish. As it happens, so is anyone who has one grandparent born on the island of Ireland. Allowing Home Secretaries to revoke citizenship based on entitlement to another should concern everyone. Should Jews be forced to revoke their right to Israeli citizenship and affirm their "Britishness"? Enough has been written on Mr Javid's decision, but to be clear I firmly believe it was the wrong decision (irrespective of whether it does as a matter of fact or law render Ms Begum stateless) and should never have been made. 

Leaving that aside, not only was Ms Begum's citizenship revoked, but she was been prevented from entering the country to challenge that decision. Mr Javid cited 'national security' concerns as the justification for that subsequent decision. Ultimately, the question before the Supreme Court was whether preventing her from entering the country, in turn, meant that Ms Begum was unable to effectively challenge the revocation decision. The Court decided that it did mean that, but that the "imperfect" solution, therefore, was that her appeal against the revocation decision should be stayed until such a time as she could participate in it effectively - without any idea as to how that might be possible, when that may be possible, or even if it will ever be possible. 

The Supreme Court's judgment runs to 137 paragraphs, but it can be summarised succinctly: 

1. The SoS decided that Ms Begum would be a threat to national security should she be permitted to enter the country.

2. The Court is not appropriately placed to interfere with that assessment made by the SoS. 

3. Therefore, Ms Begum should not be allowed to enter the country.

A fairly simple point is being made: the SoS is best placed to determine when someone is a risk to national security and, absent statutory basis to do so, it is not for the Court to substitute its judgement for that of a politician. Part of the justification is politicians are democratically elected and ultimately, in theory, accountable to the people for their decisions. Of course, to even begin to accept this line of reasoning we must leave aside the deficiencies in our political system which renders it impossible to actually hold individual politicians accountable for individual decisions, especially when they relate to deeply unpopular individuals who happen to be ethnic minorities. The entire system operates under the illusion that the democratic process is an effective means of holding politicians to account for decisions that will remain unknown to the overwhelming majority of people. Ultimately, however, given the Court accepted that Ms Begum could not participate effectively in her appeal and given it seems almost trite to point out that cannot be an automatic trump card over any other consideration, the question is simple: who is best placed to make determinations concerning national security risks and what judicial oversight, if any, is appropriate for those determinations. 

I do not dispute that questions of national security are ultimately questions for politicians, not judges, but the Supreme Court appears to have abdicated any responsibility for ensuring proper scrutiny of those determinations. To put it bluntly, it is clear that Mr Javid was going to find a way to ensure Ms Begum remains in Syria and to ensure she is denied proper redress against the revocation decision because of the political capital it brings him and the Conservative party. The Courts are the only way of preventing such abuses from occurring - it is a complete nonsense to suggest that those of us who oppose Mr Javid's decision should find a solution in the democratic process. Aside from anything else, there won't be an election for three years by which point Ms Begum could well be dead. Judges are supposed to be protectors against human rights abuses, best placed to ensure minority rights are upheld - especially the rights of those who society has turned its back on and rejected and for whom the democratic process offers no prospect of redress. In other words, people like Ms Begum. 

Without straying into answering the question of whether the revocation decision itself was the "correct" one (or, indeed, a lawful one) - a question which was categorically not before the Court - it seems to me that the Court has shirked its responsibility in scrutinising determinations made by the executive. The Court seems to have operated under the assumption that two extremes exist: either the Court of Appeal was correct that judicial oversight involves "stepping into the shoes" of the executive and remaking the determination from scratch or, at the other extreme, that decisions concerning national security cannot be touched except with the Wednesbury reasonableness barge pole. I am not arguing that the Court of Appeal was correct, but rather than this assumption seems to me, with respect, to be fallacious. There is, usually, a middle way where judges respect the role of the executive in making certain determinations but subjecting them to more intense scrutiny than "so unreasonable no reasonable decision-maker could have come to that decision". 

I suppose it comes back to what sort of judges and what sort of judicial oversight do we want and need in a democracy. This is a question to which there may be no "perfect" answer.

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