Introduction
Douglas Adams’ The Hitchhiker’s Guide to the Galaxy opens with Arthur Dent lying in front of a big yellow bulldozer to prevent it from knocking down his house- the bulldozer has been sent to clear the way for a new city bypass. In a parallel scene a few pages later, Protetnic Vogon Jeltz of the Galactic Hyperspace Planning Council announces that Earth is scheduled for demolition to make way for the construction of a hyperspace express route through the star system.
Arthur believes the local authority’s decision to knock down his house is unfair. The following excerpt is taken from his argument with the driver of the bulldozer, Mr Prosser, who attempts to persuade Arthur that he should have registered his protests at the “appropriate time”:
“But Mr. Dent, the plans have been available in the local planning office for the last nine month.”
“Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn’t exactly gone out of your way to call attention to them had you? I mean like actually telling anybody or anything.”
“But the plans were on display…”
“On display? I eventually had to go down to the cellar to find them.”
“That’s the display department.”
“With a torch.”
“Ah, well the lights had probably gone.”
“So had the stairs.”
“But look, you found the notice didn’t you?”
“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying Beware of the Leopard.”
Later, as the citizens of Earth scream uncomprehendingly at the terrifying prospect of being obliterated, Protetnic Vogon Jeltz says matter-of-factly:
“There’s no point acting all surprised about it. All the planning charts and demolition orders have been on display in your local planning department on Alpha Centauri for fifty of your Earth years, so you’ve had plenty of time to lodge any formal complaint and it’s far too late to start making a fuss about it now.”
Both Arthur and the people of Earth are deprived of an important aspect of natural justice (also called ‘procedural propriety’): the right to be heard. In a real case involving an executive decision to knock down a building (Cooper v Wandsworth Board of Works), Chief Justice Erle said the following: “No man is to be deprived of his property without his having an opportunity of being heard.”
Audi alterem partem
The legal concept of procedural propriety has two parts: audi alterem partem and nemo iudex in sua causa.
Nemo iudex in sua causa means ‘no one shall be the judge in her own cause’. This is the principle that executive decisions must not be biased. After all it’s no use being able to make representations in your hearing if the judge is a Montague and you’re a Capulet.
Audi alterem partem means ‘the other side must be heard’. It is the right to make your case (and to make it effectively) to the final decision-maker. For example, take Arthur Dent. If he had known about the bypass plans he could have marshalled a legal case against them. His case may have failed, but then he might have pursued a different strategy. Perhaps he’d have mustered support for a public campaign against the bypass, or for a change in law. Or perhaps he’d simply have moved elsewhere.
This right to be heard applies whenever a public body makes a decision that affects a person’s presumptively lawful entitlements. The local council can’t knock down your house without giving you a chance to protest, in the same way as the State can’t arrest and detain you without also providing an opportunity to challenge that detainment: the famous right of habeas corpus.
What Douglas Adams illustrates so beautifully in the above passage is the way in which a cry of injustice is not discharged by the mere existence of an appeal procedure. To be just, such procedures must also be practical. It’s no good if a right of appeal is accessible via a document at the bottom of a dark, stairless cellar in a locked filing cabinet saying Beware of the Leopard. It may as well be on an unreachable planet in the neighbouring star system!
Five parts
The right to be heard can be split into five parts, which map onto the lengthy and formal process of a court hearing:
- The right to notice of the case against you.
- The right to make representations to the decision-maker.
- The right to call witnesses.
- The right to have legal representation.
- The right to be informed of reasons for a decision.
Not all government decisions need to be appealable with the same procedural rigour as court hearings. If this were the case, government decision-making would be even slower and more expensive than it already is. Rather, the level of formality for an appeal procedure depends on the extent to which ‘fairness’ is required by the decision.
What’s fair?
What constitutes ‘fairness’ in one case doesn’t necessarily constitute fairness in another. Fairness exists on a spectrum affected by (i) “the character of the decision-making body,” (ii) “the kind of decision it has to make,” and (iii) “the statutory or other framework in which it operates” (per Lord Bridge in Lloyd v McMahon).
For example, if someone is on trial for murder, the stakes are extremely high: the consequences for the individual could be loss of a fundamental right. This is distinct from merely not obtaining an advantage. With such high stakes, nothing less than a full criminal trial satisfies the requirements of natural justice.
Conversely, if someone applies for a government contract, the stakes are much lower. The possible consequences are generally limited to the individual not obtaining a particular privilege. The interests of expedience therefore can justify not permitting would-be claimants (of which there could be many) to make in-person representations, to call witnesses, or to demand reasons for decisions against them.
Summary of procedural propriety
What constitutes a ‘fair’ procedure therefore depends on the circumstances. A useful consideration is whether the consequence of a decision may involve loss of a right, or mere loss of a privilege. However, this is not determinative, and courts will assess what’s ‘fair’ holistically.
Returning then to Arthur Dent: losing one’s house involves loss of an important right, with serious consequences. This justifies a commensurately rigorous procedure to ensure fairness— though perhaps not the full rigour of a criminal trial given that losing one’s house is not the same as losing one’s liberty. At a minimum, the interests of fairness probably required that Arthur was notified of the decision with sufficient time to formulate counterarguments. He should have been able to make representations, at least in writing. And he should have been given intelligible reasons for the authority deciding against him— notably, when Arthur asks why the bypass has to be built, Mr Prosser stammers uncertainly: “What do you mean, why’s it got to be built? It’s a bypass. You’ve got to build bypasses.”
Shamima Begum
What if the government decision was not one to take away your house, but one to take away your citizenship? Such was the case for Shamima Begum.
What level of ‘fairness’ is required when making such a decision? This should be assessed holistically, but we can briefly consider whether citizenship is a right or a privilege.
As a result of a UN Convention, there is a right not to be rendered stateless. However, Begum had dual British-Bangladeshi nationality, which meant, technically, she was not rendered stateless— although arguably she has been left practically stateless because there is no prospect of her moving to Bangladesh.
Whether it’s a right or not, there’s no doubt that being stripped of UK citizenship has had, and will continue to have, serious consequences for Begum. Bearing this in mind, it seems a high level of fairness could be expected of her appeal.
Two Key Decisions
In February 2019, the Home Secretary stripped Begum of British citizenship under s. 40(2) British Nationality Act 1981:
“The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.“
This deprivation decision was based on evidence that Begum presented a national security risk. As well as non-public intelligence about Begum specifically, five possible threats posed by ISIL-returners influenced the Home Secretary’s decision:
- Involvement in ISIL-directed attack planning
- Involvement in ISIL-enabled attacks
- Radicalising and recruiting UK associates
- Providing support to ISIL operatives
- Posing a latent threat to the UK
In June 2019, Begum applied to the Home Secretary for leave to enter the UK in order to mount an appeal against the deprivation decision. Begum could not run an effective appeal from the Al Roj camp in Syria because she could not give evidence in person or properly instruct lawyers. The Secretary of State refused her application. This leave to enter decision was also based primarily on national security reasons.
Appeals
Following a complex series of challenges and appeals, several issues arrived at the Supreme Court in February 2021. The first issue related to the type of reviews that SIAC (the Special Immigration Appeals Commission) could conduct: a full merits-review or something less. I’m not concerned with this aspect of the case.
Instead, I’m interested in the second issue: whether Begum’s appeal against the leave to enter decision should automatically have been allowed because Begum could not have a fair and effective appeal from outside the UK.
It was not in dispute that Begum could not have a fair and effective appeal while still in Syria. The issue was whether this automatically entitled her to enter the UK.
An unanimous Supreme Court took the view that it did not (para. 88 of the judgment):
88. In support of Ms Begum’s appeal to this court, counsel argued that the power to deprive a person of her citizenship could only be lawfully exercised if there was compliance with the principles of natural justice. The appeal process was the mechanism which Parliament had established for ensuring that a deprivation decision conformed to those principles. This meant that, if a person could not have a fair and effective appeal, the deprivation decision would not be consistent with natural justice. That reasoning, with respect, appears to me to be fallacious. The fact that the appeal process is a safeguard against unfairness does not mean that a decision which cannot be the subject of an effective appeal is unfair.
The Supreme Court went on to compare Begum’s predicament to that of people who are unable to make an effective appeal because evidence is unavailable as a result of the death, illness or incapacity of a witness:
90. From the perspective of the administration of justice, Flaux LJ was clearly correct to say that fairness is not one-sided and requires proper consideration to be given not just to the position of Ms Begum but also to the position of the Secretary of State. 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. There are, indeed, many situations in which a party to legal proceedings may be unable to present her case effectively: for example, because of the unavailability of evidence as a result of the death, illness or incapacity of a witness. If the problem is liable to be temporary, the court may stay or adjourn the proceedings until the disadvantage can be overcome. If the problem cannot be overcome, however, then the court will usually proceed with the case. The consequence is not that the disadvantaged party automatically wins her case: on the contrary, the consequence is liable to be that she loses her case, if the forensic disadvantage is sufficiently serious.
In my view, the court’s reasoning here is flawed because it conflates being unable to have an effective appeal as a result of the appellant being calculatedly exiled from the UK, and being unable to have an effective appeal because of an un-calculated temporary or permanent lack of evidence. The vital difference is the calculation of the decision-maker. I shall explain this distinction by comparing Arthur Dent and Shamima Begum’s cases.
Hitchhiker’s Guide to Shamima Begum
Arthur Dent and Shamima Begum face similar situations. Neither can practically appeal the executive’s decision, despite the existence of an appeal process designed to ensure an executive decision is taken fairly and non-arbitrarily.
The Supreme Court agreed that Begum could not have a fair and effective appeal from Syria, but judges that this was not a “trump card”. It does not follow, the justices held, that if someone cannot have a fair and effective appeal, then their appeal must automatically succeed.
But is this right? Or is it the case that when Parliament grants a decision-making power to the executive, it often does so with the understanding that this power is only exercisable insofar as it can be supervised by the courts through the existence of an appeal mechanism? If so, then surely when the appeal mechanism can’t operate as a check on executive decision-making (and especially when the appeal mechanism can’t operate because of a calculated action of the executive body whose original decision is being appealed), the executive acts outside of its powers?
Think about Arthur Dent and the local authority. The local authority is empowered by Parliament to build byways. As part of this power, it is authorised to displace homeowners. However, Parliament does not intend to grant the local authority an unlimited power to dislodge people. It places limits on this power: homeowners must be afforded a meaningful opportunity to challenge the local authority in an appeal process, and the local authority must be able to justify its decision.
If the homeowner herself is practically excluded from the appeal process, then the safeguard on abuse of executive power is gone: the executive becomes unchallengeable. Ordinarily, one would think, this should render the decision void— as this was not what Parliament intended.
It is possible to conceive of rare situations where the homeowner might be unable to participate in her own appeal, yet it would still be just for the authority’s decision to stand. For example, if the homeowner could not participate in the appeal because they had been missing for 10 years as a result of being locked in a madman’s basement. This is not something the local authority can control, so arguably its decision should remain valid.
However, surely it would be acting outside of its powers if the local authority itself rendered the appellant unable to participate in the appeal process: for example, by locking them in the basement of the local authority’s offices! Otherwise the local authority is simply able to shortcut the statutory limitations imposed on it by Parliament.
And is this not effectively what happened to Begum? The Home Secretary removed her citizenship (the deprivation decision), and then he deprived her of the means to appeal that decision (the leave to enter decision). Is it right that an executive authority can indirectly sidestep the limitations put on it by Parliament in this way? Surely not!
The better solution is surely to render void the decision that has the effect of circumventing the limitations imposed Parliament. In Begum’s case: overturning the leave to enter decision. After all, should it not be assumed that when Parliament gives the executive a limited power, it intends for them not to exploit some other power to circumvent the limitations put on it?
Conclusion
Overall, I’m not convinced the Supreme Court should have rejected the argument submitted on Begum’s behalf. The decision sets a precedent for allowing the executive to shortcut safeguards deliberately hatched by Parliament to be a check on executive power. In my view the Court of Appeal, which upheld Begum’s appeal and overturned the leave to enter decision, got it right.
The Home Secretary’s leave to enter decision put the opportunity to appeal its earlier deprivation decision beyond all possible reach; the Supreme Court effectively said that that’s okay. It seems the Home Secretary might as well have put the means to appeal her decision on display in the local planning department on Alpha Centauri.
Gap in the Law 