The more I think about this judgement the angrier I get about it. There's a level of deference to executive decision making that frankly abdicates the entire judiciary's role in protecting us from executive overreach.
The original judgement of SIAC was that Begum could play no reasonable part in her appeal against the decision to deprive her of her citizenship, meaning she couldn't possibly have a fair trial. SIAC suggested a stay in proceedings until Begum could play a part, but the Court of Appeal rightly (in my view) rejected that argument as essentially preventing her from appealing for an indefinite period of time, as who knows when public safety concerns about her presence in the UK would lessen. The Court of Appeal also rightly (in my view) said that any national security concerns raised by her presence in the UK could be dealt with, either by her being arrested or a TPIM order placing restrictions on her movements and contacts. You know, basically balancing the right to a fair trial against the public safety concerns. It's a court presenting a solution to a knotty problem.
The Supreme Court today decided that, nah, a stay in proceedings was fine, and Begum would just have to wait. It's not only defeatist in it's attitude to the problem the Court of Appeal solved, but says the courts shouldn't even attempt to balance those issues, but should rather just accept the executive's decision and views on the face of it. It then goes even worse, and says that SIAC shouldn't even take a full look at the original decision to deprive Begum of her citizenship, as the Court of Appeal wants, but should only ask if it was 'unreasonable' of the Home Secretary to make the decision. That there is the Wednesbury unreasonableness provision coming back into fashion, namely the idea that an administrative decision can only be corrected if it was 'So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.' This gives the Home Secretary incredible latitude when deciding to deprive anyone of citizenship.
Regrettably, because this decision was unanimous, we don't even have a Lord Atkin dissent. Here's what he said during WW2 in
a famous case about executive overreach. '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 the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.'
There, as we have now, the courts deferred entirely to the executive the moment 'national security' got mentioned. It's a shamefully illiberal decision and one I hope is viewed as grossly misguided in future.