Sunday, February 28, 2021

Preventing unfairness of one's own making

My heart missed a beat yesterday at breakfast. A newsreader announced that the Supreme Court of the United Kingdom had held that fairness does not trump public safety concerns.

Not to worry. The fuller story was that a stay of proceedings should be ordered if there was no alternative means of avoiding unfair proceedings.

This was a civil case: R(on the application of Begum) v Special Immigration Appeals Commission [2021] UKSC 7. In civil cases fairness is assessed by taking into account the interests of all parties, and some forensic disadvantage will not necessarily prevent continuation of the proceedings.

A stay of proceedings, when used in the context of fairness, is usually aimed at protecting a party from the unfairness that would occur if proceedings were allowed to continue.

In the unusual circumstances of this case, the stay would prevent Ms Begum from appealing against an order depriving her of her citizenship of the United Kingdom. At least, until the circumstances changed to the extent that she would be able properly to participate in her appeal.

The related issues before the Supreme Court were able to be determined without causing unfairness to her, because no issues of fact were involved.

Some interesting points are illustrated in the judgment of the Court, delivered by Lord Reed P. Examples are the differences in approach to appeals, depending on whether they are against discretions or against evaluative judgements; the need for appellate courts to have an evidential basis for their determinations of facts; the appropriateness of judicial deference to the decisions of ministers who are answerable to Parliament; and the need to recognise when guides to decision-making are not rules and so do not turn a discretion into an evaluative judgement.

(I am spelling judgement with that middle e to draw attention to the point that what is being addressed is the mental process, not the outcome. The outcome is, as we know, spelt in law without that middle e. The courts, in contrast, tend to use the latter spelling most of the time.)

The danger of holding dual-citizenship is illustrated by the circumstances of this case.