I do not practice in either constitutional or administrative law, although I did once lead for the complainant in a vain attempt to halt the 2005 general election because of postal ballot fraud. But I have been following the Begum case with interest, care, and now dismay.
Let me cut to the quick. This is not a ruling about the facts of the Begum’s journey to join ISIS. The issue was about whether she could effectively finish the legal process without returning to the UK. Like most people I have no sympathy with Begum. But that is irrelevant. The unanimous judgment of the Supreme Court has set a dangerous precedent, which could, if abused by any power crazed government, seriously curtail our liberties. Read the words of Lord Reed with care.
“The right to a fair hearing doesn’t trump all other considerations such as the safety of the public. If a vital public interest makes it impossible for a case to be fairly heard than the courts cannot ordinarily hear it”.
Now all of you who believe in freedom and fairness and are concerned that this government is behaving in an authoritarian way over the pandemic regulations please wake up and read some more of the Supreme Court judgment.
“The Court of Appeal didn’t give the Home Secretary’s assessment (of Begum’s threat to security if she was allowed to come back to the UK to fight her case) the respect that it should have received”.
That splendid and astute lawyer David Allan Green recently reminded us of the wartime case of Liversidge v Anderson, which concerned the relationship between the courts and the state and in particular the assistance that the judiciary should give to the executive in times of national emergency. It concerned civil liberties and the separation of powers. Over the years the courts have described that authority as, “an example of extreme judicial deference to executive decision making, best explained in the context of wartime and has no authority today”.
In Liversidge v Anderson the majority were of the view that it was not appropriate for a court to deal with matters of national security, especially as they were not privy to classified information that only the executive had. The case is best known for the dissenting judgment of Lord Aitkin.
“In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom , one of the principles of liberty for which on recent authority we are now fighting, that judges are no respecters of persons and stand between the subject and any encroachments on his liberty by the executive, alert to see that any coercive action is justified in law”
Wow. And that was in war time. Of course it destroyed Atkin. He was shunned by his fellow judges and died a broken man.
The judgment in Begum goes much much further than whether some deluded woman who chose to become an enemy of everything decent this country stands for should come back to fight her case .
“The right to a fair hearing doesn’t trump all other considerations such as the safety of the public. If a vital public interest makes it impossible for a case to be fairly heard the courts cannot ordinarily hear it.”
So what is ‘a vital public interest’? Lord Atkin had some interesting words on how a government might approach the construction of words.
“I know of only one or authority which might justify the suggested method of construction. ‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I chose it to mean, neither more nor less’.
‘The question is,’ said Alice, ‘whether you can make words mean so many different things’.
‘The question is,’ said Humpty Dumpty, ‘which is to be the master, that’s all’.”
To be fair Atkin was not describing the construction of ‘vital public interest’. But is a sensible analysis of what could be.
For those of us who believe that the judiciary should never be more executive than the executive this is a dangerous precedent. And deeply troubling. Particularly when you have a government who only defends the rule of law when it suits their interests.