Category: Human Rights and Civil Liberties

The Palestine Action proscription case and the botched prosecution of Liam Óg Ó hAnnaidh – how the Home Office, the police, and the prosecutors, are not taking terrorism law seriously

13th March 2026

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Hello and welcome to The Empty City blog, the new name of which is explained here.

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Terrorism law is important and should be credible

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Let us start with the most basic point about terrorism law.

Terrorism law should be credible and taken seriously.

Terrorism law is a special body of law, in addition to the general laws of the land, conferring special powers and creating special rules in respect of the threat of terrorism.

As such, of all areas of law, it should be taken seriously and it should be credible.

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The United Kingdom never really used to have terrorism law, at least in permanent form.

Instead we had, for example, a succession of temporary Prevention Of Terrorism Acts, of deliberately limited duration, renewed as and when by parliament.

And it was on this improvised legal basis that the United Kingdom dealt with the the terrorism that flowed from the “Troubles” in Northern Ireland, which came to an end to a large extent with the Good Friday Agreement of 1998.

Somehow those threats had been dealt with and a sort of resolution achieved without the need for any permanent terrorism legislation.

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And then something changed.

And after 2000 the United Kingdom, year-on-year, created a body of permanent terrorism law, creating a security state within the state.

This was partly because of 9/11 and what followed – though the 2000 Act received royal assent before that dreadful tragedy.

And it was partly because of (perhaps counter-intuitively) the Human Rights Act 1998, which required all interferences with the fundamental rights of individuals to have an express legal basis. In other words, some of this stuff had been going on before, but there had been no statutory framework, as it had not been needed.

But after 2000, and for whatever reasons, permanent terrorism legislation grew like topsy.

Looking at the titles of the primary legislation, you may think that the “anti-terrorism” and “counter-terrorism” Acts would cancel out the “terrorism” Acts, but: no. The effect is accumulative.

In addition to the eleven Acts listed above from 2000 to 2025, we have had other extensive primary legislation on surveillance and data retention and national security.

According the the legislation website we have also had 163 items of secondary legislation with “terrorism” in the title since 2000.

Huge piles of new legislation on terrorism since 2000.

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But, still, terrorism legislation should be taken seriously and be credible. Even if one can be concerned at the ever-growing extent of terrorism law, it serves – or should serve – an important legal purpose.

Terrorism legislation provides – or should provide – a special body of law for dealing with terrorism which cannot be done with the general law of the land.

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The problem is that recent events have shown that terrorism legislation is not being taken seriously – and it is not being taken seriously by those who should take it seriously: the government, the police, and the public prosecutors.

And this is obvious from how section 13 and related provisions of the Terrorism Act 2000 (as amended) are treated by those with public power.

Here are three examples.

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First, the proscription of Palestine Action by the Home Secretary was been ruled unlawful by the High Court.

(On this, see my posts here and here.)

The details of the High Court judgment show a Home Office that did not take the proscription seriously, imposing the sanction on flimsy or non-existent basis.

Even if the Home Office reverse this ruling on appeal, this is the sort of measure that should not have come anywhere close to a successful legal challenge.

The courts are usually deferent on matters of national security, and the judges were not impressed by Palestine Action, but even the High Court could not buy this proscription.

And this was because the Home Secretary and the Home Office did not take terrorism legislation seriously.

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Second, the botched prosecution of Liam Óg Ó hAnnaidh, the Kneecap rapper, shows the police not taking terrorism legislation seriously.

(See my Prospect post from yesterday here.)

The police did nothing about an alleged incident for six months, even though supposed breaches of terrorism law should presumably be dealt with swiftly and diligently.

And then the police panicked at the six-month deadline for the relevant offence – and royally mucked up because they had not got the relevant consent in time.

From Kneecap to Keystone.

These are the same anti-terrorism officers who, of course, are supposed to be keeping us safe.

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And then we have the public prosecutors in the same case.

When the defendant’s lawyers rightly pointed out that the prosecution was void for want of jurisdiction – because the requisite consent was not in place in time – the Chief Magistrate of England and Wales (no less) threw out the prosecution.

But the public prosecutors could not accept this decision.

Liam Óg Ó hAnnaidh simply had to be prosecuted for the alleged incident, no matter the cost to the public purse, and no matter the effect on settled case law.

The Director of Public Prosecutions resorted to the rarely used appeal by case stated to get the High Court to reverse the decision of the Chief Magistrate of England and Wales.

One would think that given the substantial delays and backlogs in the criminal justice system – some now lasting years – and which are seemingly so bad that the jury system itself may be dismantled – would mean that the Crown Prosecution Service would have better things to do.

But no, Liam Óg Ó hAnnaidh simply had to be prosecuted.

The High Court, however, were not impressed with the appeal.

The High Court pointed out that siding with the Director of Public Prosecutions in this matter would disrupt plain statutory provisions and settled caselaw.

The High Court even went to the extent of stating its “concern” at the “mistake” for which there should be “blame” in a classic passage of judicial understatement (emphasis added):

“It is a matter of concern that a charge which both the DPP and the Attorney General considered met both parts of the Full Code Test for Crown Prosecutors will never now be determined. There was, they decided, a realistic prospect of conviction and the prosecution was in the public interest. We have not investigated the reasons for this failure and nor do we seek to attribute blame. That is not because these circumstances are not worthy of consideration but because they are irrelevant to our decision.”

Ouch.

The Director of Public Prosecutions, of course, should not have wasted their department’s scarce (and valuable) resources on this hopeless appeal. The Crown Prosecution Service should concentrate on putting cases together, not trying to cover its back for when a mistake was made.

By the Director of Public Prosecutions and the Crown Prosecution Service pretending no mistake had been made (with an appeal based on an extraordinarily unconvincing case theory with no basis in any authority), they too showed they did not take the applicable terrorism law seriously.

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By saying terrorism law should be taken seriously one is not denying that there is a purpose to terrorism law.

It is to say that terrorism law should not be taken lightly.

Credibility of any area of law can be fragile, and terrorism law deserves better than recent antics of the Home Office, the police, and the public prosecutors.

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This post is also cross posted at The Empty City substack, which is run in parallel with this blog.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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What the Palestine Action judgment means – and what it does not mean

13th February 2026

The High Court rules against the government, but not with enthusiasm

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This morning the High Court handed down its judgment in the Palestine Action proscription challenge.

I wrote a quick commissioned piece at Prospect within a couple of hours of the judgment being handed down – and I just want to add and develop a few thoughts.

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First, the judgment shows the independence of the High Court in two ways.

A ruling against the government by definition indicates the independence of the judiciary from the executive.

(For what it is worth, I thought a decision against the government was possible when it switched from being a single judge to a three judge panel headed by the President of the King’s Bench Division – a “strong bench” – for a strong bench would be more likely to rule against the government on a matter of national security than a single judge. That said one can never “read” any High Court judge(s).)

But the judgment shows the independence of the court in another refreshing way.

For if you look at the judgment it is plain that the court is not impressed by Palestine Action.

It is always heartening to see a court side with a party with which it has little or no sympathy. It means the court has not got carried away with motivated reasoning in favour of the party it wants to win.

The court said bluntly:

“[Palestine Action’s] campaign is intended to close down the operations of a company pursuing a lawful business. The campaign has not been pursued with restraint. The wide range of targets is significant. It lays bare that Palestine Action’s campaign and pursuit of criminal damage is designed to intimidate the persons and businesses targeted so they end their commercial relationships with Elbit. Palestine Action is not engaged in any exercise of persuasion, or at least not the type of persuasion that is consistent with democratic values and the rule of law.”

Anyone coming across that passage early on in a judgment might have expected Palestine Action to have lost the case.

But no.

The court found in favour of Palestine Action anyway.

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Second, it was an impressive legal win – even if the court was not impressed by Palestine Action.

To win any judicial review against the government on a terrorism-related matter is difficult.

And to win any challenge to any statutory instrument (such as the one which proscribed Palestine Action) is difficult, as opposed to challenging a mere exercise of discretion by an official or a minister.

To do both is remarkable.

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Third, the government really only has itself to blame.

Here I mean both the government in general as well as the current administration.

In 2019 the government widened the scope of the relevant Terrorism law to include expressions of support for a proscribed organisation. (Technically this was done by parliament, but at the government’s behest.)

It must have seemed a good, illiberal idea at the time.

But it meant if an organisation was proscribed for one purpose – to target its organisation, membership and fund-raisers – it also criminalised expression of support too.

It became a one-size fits all provision which meant any proscription automatically infringed the right to free expression of those who were not organisers, members or fund-raisers.

This in turn meant that a court – like today – would look at any proscription with anxious scrutiny.

By wanting to prohibit more and more, the government made any proscription more exposed to legal challenge.

It was a very daft move by the then government.

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The government has also only got itself to blame in another way – and here it is the current administration.

It is hard to read the judgment and see the then Home Secretary and her officials as anything other than hapless.

For although legally the High Court decided against the Home Office on two pleaded grounds – in reality the reason the Home Office lost the case was because the proscription was botched.

One gets the sense from the judgment (and from the surrounding news of the time) that those at the Home Office wanted to push terrorism law to its limit – against a group which, even if not peaceful protesters, did not really fit the definition of terrorism – knowing that this would, at a stroke, criminalise not only those involved but anyone who expressed support for the group.

Those at the Home Office knew this was a stretch.

It must have been obvious that the information before them did not substantiate the proscription.

And the court today ruled it was a stretch too far.

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Fourth, the judgment today – in and of itself – does not change anything.

The law is the same today as it was yesterday – and at the time of the various mass arrests for those expressing support of Palestine Action.

The reason for this is that the court has not yet made an Order giving effect to its judgment.

And until and and unless an Order is made the legal positions of all involved stay the same.

This is because judgments – per se – do not normally have any legal effect until they are encapsulated by an Order.

(Orders are the sausages which come out of the judicial sausage factory, in the same way statutes are the sausages which come out of the parliamentary sausage factory.)

The court deliberately has delayed making an Order, and it would seem that the law may stand until and unless the government seeks an appeal.

And so Palestine Action remains a proscribed criminal organisation and expressing support for it remains a criminal offence.

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Finally, the government will no doubt throw everything at the appeal.

But the government threw everything at this hearing – and it still lost.

Perhaps the government will win on appeal.

The judgment today was balanced on both grounds on which the Home Office lost – it may not take much to shift those balances.

But a more sensible government would not appeal.

As I set out back in September 2025, the government is over-reaching with using terrorism law in this case.

But if the government really wants to proscribe Palestine Action it should put a two-clause bill through parliament making it that a proscription of an organisation, its members and fund-raisers does not automatically criminalise expressions of support for that organisation.

If the government keeps over-reaching, it may fall flat again.

And an adverse appeal judgment will be more damaging for the government than this judgment at first instance.

Nothing the Home Office will throw at the appeal will take away the fact that this was a botched proscription based on incomplete material.

The Home Office mucked up.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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The correct way to go around reviewing the ECHR – and the incorrect reasons for doing so

15th December 2025

The European Council met “unofficially” to review the European Convention on Human Rights in the context of migration asylum. This news prompted, for me, mixed feelings.

The mixed feelings meant my response was not entirely negative.

But what could possibly be positive?

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The good thing is that any changes are being done by discussion and deliberation. That signatories are not threatening to leave or to break the convention.

The convention and other constitutional and human rights codes are often called “living instruments” – though this is usually taken to mean that the scope of that code and of its provisions can be adapted and expanded by courts and tribunals from time to time.

But for any legal code to be a “living instrument” also means it can be amended and restricted (or expanded) by the codifiers from time to time – that is the legislators that wrote and ratified the code.

This is the rough that goes with the smooth if you sincerely believe constitutional and human rights codes to be “living instruments”.

No legal code, whether drawn up in 1950 – or 1215 or 1688-89 or 1789 or whenever – should be treated as unalterable: written in stone as opposed to on parchment or paper (or now in an electronic template).

Politicians revisiting constitutional and human rights codes is the price we pay for judges being able to develop those codes and their provisions.

Of course, it may well be (as is the case here) that the politicians are up to no good, that what they want to do is illiberal and misconceived.

But that is a separate and distinct argument to be had to whether the codes should be immune from political review.

As it is, the expressed “legitimate concerns” (such a cant phrase) about can and should be met by other means, rather than rigging the convention so that member states win cased which they are currently losing.

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One example, which should be better known but is not because the United Kingdom government did not want to shout about it, was the case of Abu Qatada.

His extradition to Jordan to face terrorism charges was blocked because evidence against him had been extracted by torture.

Ministers and the media huffed and puffed and threatened to blow the United Kingdom out of the ECHR.

But in the end – quietly – the governments of the United Kingdom and Jordan agreed a treaty that torture-gained evidence would not be used in such case.

Abu Qatada was extradited and then…

…he was cleared of terrorism charges.

Similar arrangements could be made in respect of other individuals who are resisting being sent to inhuman and degrading conditions.

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Anyway, I have set out the Good, the Bad, and the Ugly, about this European Council deliberation over at Prospect – please click and read.

You can leave any comments on that piece below.

Extremism, conformity, and the problem of law

9th December 2025

How the law can (attempt to) regulate extremism, but it can really do nothing about conformism.

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Let us start with this thought-provoking passage:

When I visited Auschwitz many years ago, someone in our group said that this is what happens when extremism flourishes.

Our tour guide replied:

“This place is not explained by extremism. It is explained by conformity.”

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That exchange was in a recent post by Ian Dunt, which you can read here.

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The state can have a good go at regulating extremism.

The state can seek to define it, for definitions are often the starting point for law and policy.

In the United Kingdom we have the following official definition of extremism:

Extremism is the promotion or advancement of an ideology based on violence, hatred or intolerance, that aims to:

(1) negate or destroy the fundamental rights and freedoms of others; or

(2) undermine, overturn or replace the UK’s system of liberal parliamentary democracyand democratic rights; or

(3) intentionally create a permissive environment for others to achieve the results in (1) or (2).

The types of behaviour below are indicative of the kind of promotion or advancement which may be relevant to the definition, and are an important guide to its application. The further context below is also an essential part of the definition.

If you look at the government’s webpage, you will see that this definition even has footnotes:

A definition with its own footnotes that define terms within the definition: this is serious stuff.

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The term “extremism” is even used in statutes and statutory instruments:

And once you have a term defined officially, and used widely in legal instruments, you can do legal and policy things in respect of that term:

And so we have things like the Prevent Strategy which seeks to stop extremism becoming terrorism:

And we have Crown Prosecution Service guidance which refers to extremism:

And so on.

Extremism is a bureaucratic category and, as such, a government can have laws and policies that deal seek to deal with it.

Those laws and policies may have limited or no effect, or indeed counter-productive effects, but at least the state can have a good go at addressing extremism.

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Now let us turn from extremism to conformity – the thing which the passage quoted at the head of this post warned us against:

When I visited Auschwitz many years ago, someone in our group said that this is what happens when extremism flourishes.

Our tour guide replied:

“This place is not explained by extremism. It is explained by conformity.”

What can law and policy do about conformity?

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There is perhaps nothing the law can do to counter conformity.

This is because – maybe literally, maybe logically – the law actually requires conformity.

Maybe a law against conformity is even a contradiction-in-terms, if you think about it.

One premise of law is that, well, people comply with it.

A law which sought to counter conformity would no doubt be rather self-defeating.

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The same can be said about policy: again one point about policy is that officials and the public are supposed to abide by it.

Policy, in general terms, provides what officials and the public should and should not do in certain situations. There may be exceptions in specific circumstances, but policy provides the general thrust of public action.

And on this basis, a policy against conformity is perhaps also a contradiction-in-terms, if you think about it.

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There is probably nothing law and policy can do to counter the threat of conformity.

Indeed, once illiberals and authoritarians have public power, and so can determine law and policy, conformity will reinforce illiberalism and authoritarianism.

And, as and when illiberalism and authoritarianism slide into extremism, then conformity will reinforce that extremism.

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The problem of conformity cannot thereby be solved by law and policy.

The danger needs to be addressed by other means.

And that other means is, of course, politics.

One may not be able to have a law or a policy against conformity, but one can certainly be politically opposed to it – to campaign and vote or otherwise mobilise against extremists who want to take control of the state.

And this includes resisting the temptation to conform – that is to nod-along with what is happening.

There are always extremists.

But what gives them power is not the appeal of their extremism, but the comfort others have in conformity.

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When I visited Auschwitz many years ago, someone in our group said that this is what happens when extremism flourishes.

Our tour guide replied:

“This place is not explained by extremism. It is explained by conformity.”

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Freedom is just another word for “a gap in the law”

7th October 2025

Two glimpses of Conor Gearty – a master in promoting the public understanding of law

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Remembering the late Conor Gearty.

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Two events in the City of London: separated by twelve years in time and by a few hundred yards in distance.

Yet the events were in quite different worlds.

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It is 2000, and the Human Rights Act 1998 is about to have full effect. The Law Society have warned all solicitors in England and Wales that the legislation will have a profound impact and it would be negligent not to know about it. Law firms are scrambling to get information on this strange and supposedly powerful new statute.

And so in a conference room of an international law firm, hardened corporate and commercial lawyers are about to find out about the law of human rights.

The speaker is Conor Gearty.

And instead of talking at the assembled City lawyers, he goes around the room engaging with them, with genuine curiosity asking about transfers of types of property and the operation of trusts and pension funds. He then ties the responses into practical examples of how the European Court of Human Rights has dealt with (or not dealt with) the rights to property and to privacy and to a fair hearing.

Beside themselves, the audience become fascinated.

And in an extraordinary exercise in exposition he even conveys the then novel doctrine of proportionality and how almost every right under the Human Rights can be interfered with, and how the 1998 Act is likely to work in practice.

A session which could have gone so badly could not have been done better.

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It is now 2012, and just around the corner and up the road from that law firm there are mass tents outside St Paul’s Cathedral.

It is the time of Occupy London.

And in one of the larger tents there is a speaker meeting on protest and the rule of law, and one of the speakers on the panel is Conor Gearty.

Again he engages with everyone, talking about the big legal case then before the courts on the legality of the “occupation”, but also about protest and the rule of law generally.

He explains, again with illustrative detail, about the how the European Court of Human Rights and our domestic courts have dealt with (or not dealt with) the rights to free expression and to free assembly and to a fair hearing.

And he talks about how the rule of law can bind the powerful, as well as the powerless. He wrote about the event here (where he was characteristically generous and kind about the other speaker).

In his write-up of the event he concluded:

Last night’s event was full of hope – hope that society can be transformed; hope that our culture can find the levels of solidarity that it so desperately needs; hope that equality can be achieved rather than merely spoken about.

But this hope never collapsed into utopian illusion.

Nor did it threaten at any time to morph into a cynical aggressiveness towards a public who refuse to share the dream.

There was an intelligent awareness of the time dreams take to be realised, of the hard work that utopia demands and of the need to be there for the long haul. Minds are not changed by singular actions, however singular. They are changed when society comes to regard these singular actions as the rule rather than the exception, when common sense shifts onto the side of the erstwhile heretic. This can take a long time or happen very quickly indeed. But it can always happen. No situation is so bad that dreams – with courage, determination and patience – cannot be realised.

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The hopes of 2012 now seem a long time ago.

Occupy London is as dated in its way as the London Olympic opening ceremony.

But he was right – making things better may take a long time, and will require a long haul.

“No situation is so bad that dreams – with courage, determination and patience – cannot be realised.”

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Conor Gearty was a genius in explaining often technical law in a way which related practically to whichever audience he was addressing – judges, lawyers, students, protesters, or the public generally.

(Only days before he died he was on the Prospect podcast discussing the Palestine Action proscription.)

He was also the most brilliant – and relentlessly realistic – of all exponents of a liberal and progressive approach to law.

Perhaps constitutional law – including the law of human rights and civil liberties – should be boring, not exciting.

Yet Conor Gearty was always able to make it genuinely interesting.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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A note about injunctions in the context of the Abrego Garcia case

14th April 2025

What courts can and cannot order – and what those injuncted can and should do

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In the United States the constitutional crisis seems to have intensified overnight, with the US government appearing to flout an injunctive order of the federal court to facilitate a deportee’s return – an order which has been upheld 9-0 by the US supreme court.

The case is that of Kilmar Abrego Garcia (as you can see from that Wiki page, his name has various versions, and this is the version which is preferred on that site, and it is there shortened to Abrego Garcia, which is also how the courts refer to him).

On 15 March 2025 he was unlawfully removed from the United States by the US government and deported to El Salvador.

The removal was unlawful as it was contrary to a court withholding order – and the US government has openly admitted that the removal was a mistake.

Abrego Garcia is now in the notorious Center for Terrorism Confinement (CECOT) in El Salvador, despite him not having any criminal record or other determination against him. He has not even been charged with anything.

On 7 April 2025 a federal court ordered that the US government “facilitate and effectuate” his return.

On 10 April 2025 the US Supreme Court unanimously upheld this order in respect of facilitating his return – though the court also held the term “effectuate” was unclear and required clarification.

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Pausing at this point, why did the federal court in Marlyand not simply order the US government to return Abrego Garcia?

Why even add the words “facilitate and effectuate”?

Why not just say that the US government is ordered to facilitate and effectuate the return of Abrego Garcia?

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Here we have to look at what injunctions can and cannot do.

Injunctions are powerful orders of any court.

An injunction typically fixes upon person [x] and if that person does not comply with the order, then [x] is in contempt and can be punished by the court.

The historical roots of the injunction in England go back to the old days of equity where the court, on behalf of the crown, would order that a person act in accordance with their (supposed) conscience – to do what was conscionable.

Of course, like a lot of equity, it was a fiction – those injuncted may or may not have any conscience about doing or not doing something – but that was the legal theory.

It is an order to ensure a person does what the court considers they should be doing.

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In simple cases, an injunction will be along the lines of [x] should or should not do something.

The assumptions here are that [x] is subject to the jurisdiction of the court and what [x] is being ordered to do (or not do) is within the control of [x].

But sometimes things can get more complicated.

What if [x] is not subject to the jurisdiction of the court?

What if [x] is being ordered to do something outside of their control?

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Consider the following situation:

[x] is in control of another person [y]

[x] removes [y] from the jurisdiction of the court by deporting [y] to country [z]

[x] no longer has control of [y]

[z] now has control of [y]

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In this situation the court cannot order [x] to return [y] because [x] no longer has control of [y]. Returning [y] is no longer within the power of [x].

But the court also cannot order country [z] to return [y] because [z] is outwith the jurisdiction of the court.

Therefore the court cannot simply order [x] to return [y].

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But what happens if [x] has acted unconscionably? Is the court impotent?

Well, the court can order [x] to do what they can to return [y].

In England, for example, a court may order [x] to use their best endeavours to procure the return of [y]. [x] may not be capable of being ordered to return [y] but they can be ordered to do everything they can do.

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Going back to the Abrego Garcia case, the federal court was no doubt aware that they could not simply order his return.

That is why the court ordered the US government to facilitate his return. The court also ordered the US government to “effectuate” his return, though for many this is a less clear word, though it is not absolutely unclear.

But the word “facilitate” was probably enough – anything covered by the one word would generally be covered by the other.

If the US government, for example, had contractual or other powers to insist to El Salvador that Abrego Garcia be returned, then that should be done.

The fact that he is outside the jurisdiction of the federal court does not mean the US government can now just shrug and not do anything.

The US government is required to do what they can.

And by further order of the court, the US government is now also required to give progress reports on what they are (not) doing to facilitate the return of Abrego Garcia.

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The US government does not want to do this.

As reported overnight by Aaron Reichlin-Melnick:

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It would appear from the news reports that the US government is not taking the court orders in this case seriously – that they are flatly refusing to facilitate the return of Abrego Garcia.

The US government submission is here.

You will see they are not saying that they are breaching the order – but one would expect that.

You will see that they are quibbling about what the word “facilitate” means.

Formally, at least, the government claims it is not in breach – they say that the order has no application.

The US government also do not seem to be giving the updates required by the court – at least not in any meaningful way.

The impression conveyed is that the US is flouting the order – and that, even if it were within their power to “facilitate” the return of Abrego Garcia that they will not do so.

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What will happen next?

If the US government is flouting the order, which appears to be the case, then the constitutional crisis in the United States is intensifying.

Perhaps the US government will successfully appeal to the Supreme Court and that court construes the order and the word “facilitate” to mean something other than the ordinary meaning of the order and indeed the word “facilitate”.

Perhaps the court will punish those responsible at the US government for contempt.

Perhaps even Abrego Garcia will be returned.

It is in the nature of a constitutional crisis that one cannot predict the next events to unfold – for if one could predict what will happen next then it would not be a crisis.

Perhaps nothing dramatic will happen at all – and this will be another quiet tug on the fabric of the constitution the effects of which will worsen over time.

But it is hard to see anything good coming of this.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

A significant defeat for the Trump government in the federal court of appeal

27th March 2025

Reckoning the legal and practical significance of the United States deportations case

Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness

21st August 2024
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One striking – and troubling – aspect of the legal case of Shamima Begum is the artificiality of the United Kingdom state maintaining that she ever had the real prospect of going to Bangladesh.

The removal of her British citizenship was predicated on her being able to take the citizenship of Bangladesh, a country which she had never visited and to which she had no meaningful connection.

By way of background, this is from paragraph 1 of the relevant Court of Appeal decision:

“On 19 February 2019 Shamima Begum, then aged 19, was deprived of her British citizenship by a decision under s 40(2) of the British Nationality Act 1981 (“BNA 1981”), made personally by the then Secretary of State for the Home Department, the Rt Hon. Sajid Javid MP. Her appeal to the Special Immigration Appeals Commission (“SIAC”) was dismissed on 22 February 2023.”

Adding:

“Ms Begum was born in the United Kingdom on 25 August 1999. She was brought up in Bethnal Green in the London Borough of Tower Hamlets. Her parents are of Bangladeshi origin and, through them, Ms Begum had Bangladeshi citizenship until her 21st birthday.”

The Court of Appeal then noted:

“SIAC observed that Ms Begum’s case under this ground was straightforward: even if the deprivation decision did not render her technically stateless, it had that practical effect. One way or another, she could not go to Bangladesh, and that meant there was nowhere for her to go […].”

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We are told by the Court of Appeal that material before the Home Secretary included a reference to this effective statelessness:

“On 18 February 2019 a ministerial submission with accompanying documents was received by the Secretary of State. The submission recommended that the appellant be deprived of her British citizenship on the basis that it would be conducive to the public good due to the threat that she was assessed to pose to UK national security. […]

“One of the annexes to the submission, dealing with the potential risks to Ms Begum of mistreatment contrary to Articles 2 and 3 of the ECHR, expressed the view that although there was a risk that individuals in Bangladesh could be subject to conditions which would not comply with the ECHR, the Secretary of State may consider that there was no real risk of her returning to Bangladesh. Neither the submission nor the annexes to it expressly considered the issue which forms the basis of Ms Begum’s third ground of appeal before this court, that if deprived of British citizenship she would be “de facto stateless”.

“The Secretary of State agreed with the recommendations in the submission on 19 February 2019.”

*

This was an eye-catching push-pull you point: on one hand, the Home Secretary was legally safe in taking away her British citizenship as Begum would in theory be able to go to Bangladesh but, on the other hand, he was also legally safe because in practice she could not do so.

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One of the grounds of appeal of Begum before the Court of Appeal was:

“De facto statelessness: The deprivation decision was unlawful on account of a failure by the Secretary of State to have regard to whether the decision to deprive would render Ms Begum de facto stateless on account of her de jure Bangladeshi citizenship being of no practical value to her. SIAC correctly concluded that this was a mandatory relevant consideration to which the Secretary of State was required to have regard. However, SIAC erred in finding that the matter had been properly considered.”

*

In one paragraph, the Court of Appeal rejected this ground of appeal:

“It is not necessary to decide what might be difficult questions about whether the concept of “de facto statelessness” is established in international law. The point in layperson’s language is that Ms Begum had nowhere else to go. Until her 21st birthday in 2021 she had Bangladeshi citizenship by descent but there was no realistic possibility of her being able or permitted to enter that country. The appendix to the ministerial submission made this clear, though in the context of whether she was at risk of treatment contrary to ECHR Article 2 or Article 3. As SIAC found at [302]-[305], this was sufficient to bring the issue to the attention of the Secretary of State, if he did not know it already. Despite knowing that she had nowhere else to go, in all practicality, the Secretary of State nonetheless decided that to deprive her of her British citizenship on grounds that to do so was conducive to the public good and in the interests of national security. He took that matter into account. The decision cannot be impugned on the basis that he did not do so. On the basis of the open arguments applied to the evidence that we have seen in open and closed, Ground 3 fails.”

*

In essence: it did not legally matter that the deprivation of her citizenship in fact (de facto) rendered her stateless, as long as (a) in legal theory (de jure) she was not stateless and (b) the minister considered this fact, and made the deprivation order anyway.

*

Begum then applied to the Supreme Court.

Some thought this would be a good case for the Supreme Court to engage with this extraordinary power of the UK state to take away a person’s citizenship – in some ways a person’s most basic legal right – in circumstances where in reality they would be rendered stateless, but as a legal fiction they would not be.

It could have been a Supreme Court case for the ages.

But, no.

In their short published reasons, they decided not to hear the appeal on his and her other grounds. On de facto statelessness, they provided these three paragraphs (emphasis added):

“The fourth ground of appeal concerns the fact that the deprivation decision resulted in the Appellant’s becoming de facto stateless, as there was no reasonable prospect of her being admitted into Bangladesh, of which she was a citizen. In this regard, it is argued that the Secretary of State failed to have regard to all material considerations.

“Both courts below found on the evidence that the Secretary of State had taken into account the fact that the deprivation decision would render the Appellant de facto stateless. There is nothing to indicate that that conclusion is vitiated by any error of law. The Appellant’s submission that the Court of Appeal failed to distinguish between the fact of de facto statelessness and the significance of that fact (the latter, rather than the former, being argued to be the mandatory relevant consideration) does not appear to the panel to raise an arguable point of law.

“The panel notes that the Appellant does not challenge the existing law that the prohibition, under section 40(4) of the British Nationality Act 1981, on making a deprivation decision which would render a person stateless, refers to de jure rather than de facto statelessness. Nor is it argued that the Secretary of State’s decision to make the deprivation decision, notwithstanding that its effect would be to render the Appellant de facto stateless, was unlawful because it was perverse.”

*

Begum may apply now to the European Court of Human Rights – a possibility which the Supreme Court alludes to elsewhere in its decision: “Whether the Convention law should be developed as the Appellant argues is a matter which can only appropriately be decided by the European court, as the authoritative interpreter of the ECHR. It is not the role of this court to develop the law under the Convention well beyond the principles established by the European court.”

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But overall, this does not seem a satisfactory position.

There are many people in the United Kingdom who either through their parents or otherwise could, in theory, become a citizen of another country – even though they have no real connection with such a country.

The power used in the Begum case cried out for judicial consideration at the very highest level in our judicial system, but the Supreme Court appears to have shrugged – and, at best, passed the matter to Strasbourg.

Of course, we do not have all the facts about Begum – there may be evidence not in the public domain which justifies her exclusion; we do not know.

But the general principle about removing British citizenship requires anxious scrutiny by our highest court.

In 2020-21 the Supreme Court decided various technical points about Begum’s case.

It is a shame that the Supreme Court has now decided not to hear the substantive issue in her case.

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