Don't Worry About the Government- National Security and the Rule of Law by Ronald Clancy QC

The United Kingdom Government frequently invokes national security in a variety of ways which conflict with the public interest in open government, with the rights and duties of citizens and with the operation of the rule of law. In cases in which these conflicts have arisen the Courts have traditionally shown great deference to the Executive branch of Government applying the constitutional principle of the separation of powers.

The recent UK Supreme Court case R (on the Application of Begum) (Appellant) v Special Appeals Commission and Others 2021 AC 765 is the latest in a series of authorities in which this deference has been affirmed. In that case the Home Secretary made an order depriving Shamina Begum of her British citizenship on the ground that she, having travelled to Syria (as a fifteen year old) and having aligned herself with ISIL, would present a risk to the national security of the United Kingdom if she was allowed to return here. This case followed the direction of travel previously sign-posted in other high level authorities. In this seminar I will critically examine the following points in as much detail as time will permit (leaving space for discussion):-

1. The Supreme Court’s analysis of the constitutional principle which underlies the separation of powers. The Supreme Court unanimously held  (in an opinion given by Lord Reed) that the Government’s assessment of the requirements of national security must be respected because 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 – paragraph [134]. The Court commended a more detailed exposition of this principle set out by Lord Hoffman in Secretary of State for the Home Department v Rehman 2001 UKHL 47 which included the following  observation about national security assessments – “Such decisions, with serious potential results 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” paragraph 62.”  According to one critic of this approach (Conor Gearty, In the Shallow End, London Review of Books 21 January 2022) Lord Reed “has made himself the master of an approach to judicial review so light-touch as to be almost no touch at all.” Is that fair comment?
2. Lord Sumption, in a letter to the LRB published on 10 February 2022, has sided with Lord Reed on this saying – “What the Supreme Court has done is to require judges to have more regard than hitherto to the proper distribution of constitutional responsibilities in the state.”Is the right to vote down a Government every five years or so an adequate substitute for judicial scrutiny? As the Chilcot Inquiry demonstrated it can take years of exhaustive investigation to establish whether the Government has made legitimate use of the national security card.  Is this separation of powers or relegation of the rule of law? Is the Hoffman/Sumption/Reed approach legitimate even where there is reason to doubt the good faith of the executive’s assessment?
3. The second strand of the justification for deferring to the executive on national security decisions is that these are questions of evaluation and judgement in which the Home Secretary has the advantage of a wide range of advice from people with day-to-day involvement in security matters which the courts and tribunals (even those with specialist membership) cannot match - Lord Hoffman in Rehman paragraph [57]. How far does this justification stretch? Courts are well used to adjudicating in highly complex disputes which turn on scientific expertise. Can we always trust the Government not to over-play their hand on this for political reasons?
4. The courts have permitted limited review of national security based decisions in a number of cases. This has included some scrutiny of the factual grounds upon which decisions were made, the application of the Wednesbury reasonableness principle to the merits of those decisions and the recognition  of ECHR rights under Articles 2, 3, 8 and 10 of the Convention. In all of these the courts have continually come back to the deferential approach with the result that few if any cases have resulted in the Government position being struck down. There have been dissenting judgements notably from Lord Kerr inR (on the application of Lord Carlile of Berriew QC and others) (Appellants) v Secretary of State for the Home Department (Respondent) 2015 1 AC 945. In that case the Home Secretary denied entry to the UK to a prominent Iranian dissident who had been invited to speak to a group of influential Members of Parliament. She did so on the grounds that this would cause serious damage to the volatile and fragile international relations between the UK and Iran. Lord Kerr said – “The courts of this country have been given momentous obligations by the Human Rights Act, none more so than the duty to decide whether interferences with Convention rights are justified. Parliament has decided that decisions of all public authorities, including government itself, should be subject to that form of independent review. In conducting the review of government decisions, courts must, of course, be keenly alive to the expertise and experience that ministers and public servants have by reason of their involvement in affairs of state, an involvement that courts cannot possibly replicate. But if the power and the duty to conduct fearless, independent review of the justification for interference with Convention rights is to mean anything, close, dispassionate and independent examination of the reasons for interfering with those rights must take place. Convincing reasons for the interference must be provided – convincing, that is, to the court that is required to examine and assess them.”Should the courts be more robust in exploring the factual justification for these decisions and in weighing the reasons given against competing public interests and convention rights?

Speaker

Ronald Clancy QC

Hosted by

School of Law

Venue

Hybrid Even - KING'S COLLEGE KCF7

Contact

On Campus Venue KCF7. For online access please email georgi.chichkov@abdn.ac.uk