Shamima Begum, the separation of powers, and the common good

Foran, M. (2021) Shamima Begum, the separation of powers, and the common good. [Website]

Abstract

The Supreme Court has come under significant criticism for its handling of the Shamima Begum case, decided on 26 February. Much has already been said in relation to the deference that the court showed to the executive, with some arguing that it was improper or even a complete abdication of the judicial role itself. This post seeks to clarify what precisely the court did and did not do in relation to the exercise of its constitutional duty to review the legality of executive action. It will suggest that the Court did not engage in any strong deference as to the nature of Begum's rights nor to the balance to be struck between those rights and the common good. Such questions remained wholly within the purview of the Court. While the Court did pay due respect to the executive's authority to determine and pursue the common good, this was subject to an assessment of lawfulness. Any deference, if it can even be called deference, was to the rule of law, given both the statutory scheme in question and the common law distinction between review and appeal. The determination of the scope of individual rights entails an exercise of judicial interpretation which seeks to strike an appropriate balance between the applicable legal considerations. It is not deference for the court to include constitutional principles such as the separation of powers within those considerations.

• Item Type: Website
• Keywords: Constitutional law, terrorism, judicial review, separation of powers, common good.
• Status: Published
• Glasgow Author(s) Enlighten ID: Foran, Dr Michael
• Authors: Foran, M.
• College/School: College of Social Sciences > School of Law
• Publisher: UK Constitutional Law Association