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Judges and civil liberties

Mike McCartney

1st March 2021

The case of Shamima Begum

The role of judges in British politics was one that until the last couple of decades was largely confined to the backwaters. A number (possibly a combination) of factors have very much shifted the judiciary onto the front pages. The increase in what some might consider to be as authoritarian legislation by successive governments from the 1980s onwards with regards to civil liberties, and an increased cause by those who feel liberties have been infringed, has resulted in a bigger clash between individuals and the state and as a result this has left the judiciary as a kind of bastion of civil liberties. Plus there is the fact that the passage of the Human Rights Act has given those who feel their liberties have been infringed the opportunity for extra protection within the British judicial system.

If you are not familiar with the Begum case, the BBC has the background here:

So in context of the debate within British politics, we can see that the decisions judges now get drawn into are potentially highly volatile. It's certainly not something I was asked to consider when studying Politics as school in the 1980s. And as a teacher, I thought it was a shame that the topic of the judiciary was often given a major body swerve by candidates (rumours were that some schools did not even bother covering the topic given its 'unpopularity' or perceived 'lack of accessibility') such that as an senior examiner I would wade through candidate scripts to find that the number of responses on papers where the topic was optional could be counted on the fingers of one hand.

So what is the debate with in terms of the Begum case with regards to the A level course?

It goes something like this:

How effective are judges in protecting civil liberties?

The following evidence suggests the judiciary is effective in protecting civil liberties

· Through the power of judicial review judges can declare actions by public officials/bodies ‘ultra vires’ and have been unafraid to use these powers.

· Since the introduction of the Human Rights Act (1998) judges have had the power to review cases in light of the European Convention on Human Rights.

· Judges are sufficiently independent from the executive to make decisions via judicial review even when the government may not like the outcome.

· The kind of bias identified by Griffith over 30 years ago may be slowly unravelling.

· The appeals procedure has ensured that the right to a fair trial is upheld.

· Judges can also act as a quasi-pressure group via their comments (sometimes off the record) to the media, in the House of Lords, or when summing up cases.

· The impact of the new Supreme Court, is starting to take effect.

The following evidence suggests the judiciary is not effective in protecting civil liberties

· A.V. Dicey argued that alongside the sovereignty of Parliament one of the twin pillars of liberty was an independent judiciary. Whether the latter exists has been called into question.

· Griffith suggested that ‘These judges have by their education and training…acquired a strikingly homogenous collection of attitudes, beliefs and principles.’ It is thought, therefore, that judges hold social bias and questions are raised about whether justice is really blind.

· The high profile cases of miscarriage of justice outlined above, as well as numerous other lower profile cases, have led many to lose faith in the courts.

· The impact of the Human Rights Act has not been as great as expected.

· Keith Ewing, writing in The Guardian, lists a number of failings of our judiciary when it comes to rights protection, arguing that “the erosion of liberty has increased, not diminished under the ‘culture of liberty’ created by the HRA; and reliance on the courts has generally not been an effective way to protect civil liberties from the power of the state

· We have to question whose civil liberties it is that judges are protecting by overturning large chunks of the government’s anti-terrorist legislation.

· There have been reports that Britain’s top judges had given ‘unduly lenient’ sentences to criminals guilty of serious offences.

· High profile media outbursts by senior judges indicate that the convention that sitting judges should keep quiet outside the courtroom has broken down.

· Continued pressure by the government and the media is putting excessive pressure on judges and jeopardising the right to a fair trial.

This brings us, finally to reaction to the Begum judgment. I was largely sparked to write this when skimming through the letters page in today's paper, and in particular when I read this:

'Every day it seems the Guardian serves up another reason for being ashamed to be British. On Friday, it was the case of Shamima Begum (Shamima Begum loses fight to restore UK citizenship after supreme court ruling, 26 February). It makes it particularly difficult that I’m tutoring someone who is hoping to take an A-level in British politics. All the books list human rights and explain how carefully protected they are in our system. Article 5 is supposed to protect the right to liberty and freedom from arbitrary detention. Yet the supreme court is unable to protect Begum’s rights against a home secretary who is operating a policy based on pandering to public opinion in return for (hoped-for) votes.

We are told that legal protections are particularly important in difficult cases – that is, cases where an individual presents as unpleasant or undeserving. Begum was a teenager who took the extraordinary step of leaving her country to defend something she believed was deserving of her support. But even if she left with the firm intention of terrorising her fellow citizens, does this mean she should be deprived of her rights? It is a matter not of what Begum deserves but of what our national honour, and our constitution, deserve. This has been increasingly in doubt in recent years, with the government threatening to renege over the Northern Irish border agreement; not to mention the Chagos Islands and our participation in rendering citizens to be tortured during the “war on terror”.

Jeremy Cushing


Source, and other letters here:

There are questions from some groups about the degree to which the judiciary is genuinely free from influence of the government, a government that might be sensitive to public opinion - in other words, a voting electorate who have been consistently exposed to news stories that could be considered as sensationalist?

See, for example:

But the independence of the judiciary is a topic for another day.

Mike McCartney

Mike is an experienced A-Level Politics teacher, author and examiner.

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