Shamima Begum and the Future of Judicial Review
One of the cases that I cover this week on the podcast is a judicial review brought by a prisoner arguing against the conditions for recall to prison. The arguments that he makes are not unreasonable by any stretch of the imagination, but he is also arguing against a well-thought-out procedure adopted by the Offender Recall Unit and the Parole Commissioner, that is based on the relevant legislation.
This is a common difficulty for judicial review applications. A person is asking the court to rule against a decision made by a public body or an elected official. All of this exists within the context of a system of Parliamentary sovereignty, where the ‘will of the people’ (as expressed through Parliament) is taken to be paramount.
The problem is that while Acts of Parliament are beyond reproach, the decisions taken by elected officials are not infallible. Judicial review is the way that the courts balance this respect for the decisions taken by those in public office against the need to make sure that those decisions are lawful.
We saw the inherent tension in this process in the recent Rwanda decision, where a stunningly inhumane policy adopted by the government is being pushed back against by the courts on the basis that it breaches some of the fundamental principles of international law. As judges hold firm, Downing Street is having to resort to an unusually drafted Bill in a desperate bid to get the policy over the line.
Perhaps a more subtle example of the difficulties that courts struggle with in relation to judicial review can be seen through the Court of Appeal decision in the Shamima Begum case that was handed down on Friday.
To this end, it is worth trying to summarise the arguments made by Begum and how they were dealt with by the court.
Had the Home Secretary failed to consider that Begum was a potential victim of sexual trafficking in breach of Article 4 of the European Convention on Human Rights (the prohibition of slavery/force labour)?
It was decided that when the Home Secretary has to decide whether or not to deprive a person of their British nationality on security grounds, there is no onus to consider whether that person has also been a victim of sexual trafficking.
Was the same failure to consider that Begum was a potential victim of sexual trafficking a failure of the Home Secretary’s duty at common law?
While the evidence presented to the minister made it clear that children who joined the Islamic State should, first and foremost, be regarded as victims, it was also not out of the question for the Home Secretary to decide that Begum did make an independent decision and thus remained a security risk.
Did the Home Secretary ignore the fact that a deprivation order should not be made if doing so has the consequence that Begum would be made de facto stateless?
The Court of Appeal agreed with the lower courts that while Begum had little chance of being able to attain Bangladeshi citizenship (to which she was entitled at the time), the Home Secretary was under no obligation to consider the concept of de facto statelessness.
Was there a breach of procedural fairness because Begum had not been notified of the intention to make a deprivation order against her?
The main purpose of deprivation orders is to protect the public from a threat to national security, and this purpose could be frustrated if the subject of such an order was notified in advance. Procedural fairness is instead secured through the right to appeal against such an order.
Was there a breach of the Public Sector Equality Duty?
The Court of Appeal held that the deprivation decision was exempt from considerations of the Public Sector Equality Duty and, in any event, the deprivation power had been exercised in a proportional manner.
We can learn a lot about judicial review from the answers to these questions.
The court is not interrogating whether the minister made the ‘correct’ decision but is instead purely concerned about whether it was a decision that he was entitled to arrive at.
To this end, it is interesting that the Lady Chief Justice, Dame Sue Carr, concluded her remarks by saying that:
“It could be argued that the decision in Ms. Begum’s case was harsh. It could also be argued that Ms. Begum is the author of her own misfortune. But it is not for this court to agree or disagree with either point of view. Our only task is to assess whether the deprivation decision was unlawful. We have concluded it was not and the appeal is dismissed.”
This will be small salve for Begum who may well now find herself out of legal options for returning to the UK. The decision comes at a time when the rhetoric surrounding her case is turning, thanks to brilliant podcasts like I’m Not a Monster from the BBC. Even Jacob Rees-Mogg now argues that it was the wrong decision.
That decision by Sajid Javid is something that should be closely examined and reviewed by Parliament in the context of deprivation orders. The minister used a child to score political points and this comes from a political party that, even this weekend just gone, has further proven its sordid track record of ingrained Islamophobia.
The courts are not there to correct the mistakes of politicians, that is the job of the electorate.
This week on the podcast, we have another double episode for you. Our first case is the aforementioned judicial review where the criteria for recalling a prisoner back to jail are being challenged. In the second, we return to life before Brexit as the closing of a tax loophole by the Treasury was argued to be a breach of the VAT Directive.
Episode link: https://uklawweekly.com/2024-uksc-4-and-5/
Make a difference today,
Marcus