28 July 2023

‘The law of humanity, which is
anterior to all positive laws,
obliges us to afford them relief,
to save them from starving’

Lord Justice Brown … upheld ‘the statutory right of asylum seekers to claim refugee status’

Patrick Comerford

The UK asylum system is about to change for the worse. The Home Secretary Suella Braverman is taking a wrecking ball to the right to claim asylum in the United Kingdom. The new ‘Illegal Migration’ Act will put in place even tougher measures for men, women and children seeking safety in the UK.

Many campaigns and organisations are calling on the government to treat refugees as people, not as numbers.

Earlier this week, a judge ruled that the Home Secretary acted unlawfully by failing to provide basic support to asylum seekers, including young children and pregnant women.

This ruling means Suella Braverman must introduce changes that will benefit thousands of asylum seekers. The ruling came after five asylum seekers successfully challenged her in the high court. Three of the claimants brought proceedings over delays in providing financial support, while two challenged over failures to provide cash payments to pregnant women and to children under three years old.

In his ruling, Mr Justice Swift found that the Home Secretary broke the law in withholding payments of £3 a week to provide healthy food for children aged one to three and to pregnant women.

On this Friday evening, I am thinking of the impact of earlier rulings by Simon Denis Brown, Baron Brown of Eaton-under-Heywood, who died earlier this month (7 July 2023), and how he paved the way for the type of ruling handed down earlier this week.

Simon Brown was a Law Lord and then a Justice of the Supreme Court in 2009-2012. He was born on 19 April 1937 into a middle class Jewish family in Sheffield: his father Denis Baer Brown fought in Burma during World War II; his mother was Edna Elizabeth (Abrahams) Brown; together they ran their own jewellery business.

His family moved to Nottinghamshire when Simon Brown was an infant, and he went to Stowe School (1950-1955) in Buckinghamshire, where he acquired a passion for history.

Brown spent his National Service (1955-1957) in Cyprus during the Suez crisis and during the conflict with Greek Cypriot guerrillas in EOKA fighting for the unification of Cyprus and Greece.

He began studying history at Worcester College Oxford, but changed to law. During holidays he variously hitchhiked to Naples, worked as a tour guide for wealthy Americans and swam the Bosphorus.

He was called to the bar by the Middle Temple in 1961. From 1979 to 1984, he was a Recorder and First Junior Treasury Counsel (Common Law). From 1980, he was a Master of the Bench of the Middle Temple.

Brown was appointed a High Court Judge in 1984, then became a Lord Justice of Appeal and a judge of the Court of Appeal of England and Wales. He was appointed a Lord of Appeal in Ordinary and a life peer in 2004 as Baron Brown of Eaton-under-Heywood, of Eaton-under-Heywood. He and nine other Lords of Appeal in Ordinary became Justices of the Supreme Court when it was set up in 2009. He retired from the House of Lords only last month (19 June 2023). Lord Brown died earlier this month (7 July 2023), at the age of 86.

Centuries of common law precedents were overturned by Simon Brown in 1990 when, as a high court judge, he ruled that a husband could be found guilty of raping his wife. His decision that ‘there is no marital exemption to the law of rape’ was upheld by the higher courts and confirmed in the Sexual Offences Act 2003.
< />Brown later told the House of Lords: ‘I have few boasts to my name by way of legal achievement, few jewels in my judicial crown, but I can … boast of being the first judge in this jurisdiction … to rule that a husband is not permitted in law to have intercourse with his wife quite simply whenever he chooses.’

Renowned for his finely written judgments and entertaining memoirs, Brown was liberal in his sympathies and also made a lasting impact on immigration law. In a 1996 judgment he struck down secondary government legislation that deprived asylum seekers of support if they failed to claim asylum on arrival.

Brown concluded that: ‘Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution.’

He commented that the state has a duty, anterior to all positive laws, to provide relief to non-nationals to save them from starving. Brown wrote the leading judgment of the majority, saying:

‘I would hold it unlawful to alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status. So basic are the human rights here at issue that it cannot be necessary to resort to the European Convention on Human Rights to take note of their violation.

‘Nearly 200 years ago Lord Ellenborough CJ in R v Inhabitants of Eastbourne (1803) 4 East 103, 107 said: “As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving; …”.’

In this ruling, Lord Ellenborough ruled that destitute French refugees in England have a fundamental human right to be given sufficient means to enable them to live, has been much praised and frequently followed.

Three years later, in another landmark ruling, Brown held that refugees do not have to claim asylum in the countries through which they pass to reach safety in order to be protected from prosecution, saying that ‘some element of choice’ should be open to them.

Brown also heard Robert Maxwell’s libel action against Private Eye and reversed the jury’s verdict over alleged match-fixing involving the goalkeeper Bruce Grobbelaar. In 1995, in what became known as the ‘gays in the military case,’ he opened his judgment: ‘Lawrence of Arabia would not be welcome in today’s armed forces; homosexual men and women are not permitted to serve.’ Although legally obliged to uphold the ban, he made it clear that he believed its days were numbered.

In the House of Lords, he called for an end to the imprisonment for public protection regime that left inmates stranded on indefinite sentences, labelling it ‘the greatest single stain on our criminal justice system.’

Last year, Lord Brown opposed the nationality and borders bill, the cornerstone of the government’s new plan for immigration, over non-compliance with international law, declaring: ‘There are not many issues that it is worth going to the stake for, but surely the rule of law is one. I have spent 60 years of my life on it and do not propose to stop here.’

The Fast of Tisha BeAb was marked in the Jewish calendar yesterday (27 July 2023). In the Sephardic tradition, on the Shabbat before the fast of Tisha BeAb, communities begin to read the Book of Debarim (Deuteronomy 1: 1 to 3: 22). In the beginning of Parashat Debarim, Moses recounts the call to appoint judges for the people, so that the burden of leading the people does not fall on his shoulders alone.

In his call to appoint judges, Moses emphasises the need for them to be wise and knowledgeable, and whose true characters are known to the people. He values the personality, characteristics and morality of those chosen to serve as judges.

This is intimately connected to Tisha BeAb, as the destruction of the Temple is attributed to a lack of justice in society. In the Haftara which is read on this Shabbat, Joshua laments the lack of justice in Jerusalem, and prophesises that the redemption will ultimately be achieved through the restoration of the judicial system.

Lord Ellenborough (Edward Law), who strongly influenced Lord Brown’s landmark ruling on refugees, was an uncle of Chancellor James Thomas Law, whose monumental grave in Lichfield I described in a blog posting ten days ago (18 July 2023).

Lord Ellenborough’s words over 200 years ago are worth being reminded of today: ‘As to there being no obligation for maintaining poor foreigners … the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving.’

Shabbat Shalom

Sheffield Central Synagogue and the heart of Jewish Sheffield were destroyed by German bombing in 1940 (Photograph: Patrick Comerford, 2022)

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