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)

Daily prayers in Ordinary Time
with USPG: (61) 28 July 2023

Detail of the Peel window in the south aisle in Saint Editha’s Church, Tamworth, depicting David, Rizpah and Solomon (Photograph: Patrick Comerford, 2023)

Patrick Comerford

We are in Ordinary Time in the Church Calendar, and this week began with the Seventh Sunday after Trinity (23 July 2023).

Before this day begins, I am taking some time this morning for prayer, reading and reflection.

This week, my reflections each morning include:

1, Looking at stained glass windows in Saint Editha’s Collegiate Church, Tamworth;

2, the Gospel reading of the day in the Church of England lectionary;

3, a prayer from the USPG prayer diary.

The Resurrection window in the South Transept of Saint Editha’s Church, Tamworth (Photograph: Patrick Comerford, 2023)

The South Transept and South Aisle windows, Saint Editha’s Church, Tamworth:

The window in the South Transept of Saint Editha’s Church, Tamworth, is easy to overlook, behind the Lady Chapel half hidden by the organ. This window depicts three Resurrection themes beautifully illustrated in glowing colours: the Supper at Emmaus (left), the Resurrection (centre) and the Miraculous Draught of Fishes (right).

This window is in memory of John Harding, of Bonehill, who died on 9 July 1844, aged 82, and his wife, Margaret, who died on 14 November 1833, aged 66, who are buried with six of their children in a vault underneath the North Porch.

The first window in the South Aisle in Saint Editha’s Church depicts Daniel, Esther and Ezra (Photograph: Patrick Comerford, 2023)

The three fine windows in the South Aisle are transomed, with three lights each and well-designed tracery. The stained glass was made by Powell & Son of London and designed by Henry Holiday. The colouring and drawing of the Biblical subjects in these windows are particularly fine.

The first window is in memory of Francis Willington of Colehill, town clerk of Tamworth, who died on 10 February 1881, and his wife Jane Anne, who died on 11 July 1880. Willington also donated the three Marmion or Saint Editha windows by Ford Madox Brown (1821-1893) in the on the south side of the chancel, high above the High Altar, and the window on the south side of the chancel in memory of his son, Waldyve Henry Willington.

The Biblical figures in this first window in the south aisle are Daniel (‘Bless ye the Lord’), Esther (‘What wilt thou Queen Esther?’) and Ezra (‘By the rivers of Babylon we wept’).

The second window in the South Aisle in Saint Editha’s Church depicts David, Rizpah and Solomon (Photograph: Patrick Comerford, 2023)

The next window, the richest of the three, is in memory of William Yates Peel (1789-1858) and his wife Lady Jane Elizabeth Peel, who died on 5 September 1847.

William Yates Peel was the second son of Sir Robert Peel and a younger brother of the Prime Minister Sir Robert Peel. He was MP for Bossiney (1817-1818), Tamworth (1818-1830, 1835-1837, 1847), Yarmouth (1830-1831) and Cambridge University (1831-1832), and was a Lord of the Treasury under Wellington and under his brother Sir Robert Peel. Lady Jane Elizabeth Moore was a daughter of Stephen Moore, 2nd Earl Mount Cashell.

The Biblical figures in this second window in the south aisle are David (‘The Battle is the Lord’s’, I Samuel 17: 17), Rizpah (‘She suffered neither the birds of the air to rest on them by day nor the beasts of the field by night’, II Samuel 21: 10) and Solomon (‘Blessed be the Lord which delighted in thee’, I Kings 10: 9).

The third window in the South Aisle in Saint Editha’s Church depicts Samson, Ruth and Samuel (Photograph: Patrick Comerford, 2023)

The third window, nearest to the south door, is to the memory of Helen Grace Milligan and John Curzon Shaw (1854-1879), daughter and son of John and Emily Shaw, of Tamworth.

The Biblical figures depicted in this third window in the south aisle are Samson (‘Let me die with the Philistines’), Ruth (’Whose damsel is this?’) and Samuel (‘Anoint him for this is he’).

The first window in the South Aisle in Saint Editha’s Church depicts Daniel, Esther and Ezra (Photograph: Patrick Comerford, 2023)

Matthew 13: 18-23 (NRSVA):

[Jesus said:] 18 ‘Hear then the parable of the sower. 19 When anyone hears the word of the kingdom and does not understand it, the evil one comes and snatches away what is sown in the heart; this is what was sown on the path. 20 As for what was sown on rocky ground, this is the one who hears the word and immediately receives it with joy; 21 yet such a person has no root, but endures only for a while, and when trouble or persecution arises on account of the word, that person immediately falls away. 22 As for what was sown among thorns, this is the one who hears the word, but the cares of the world and the lure of wealth choke the word, and it yields nothing. 23 But as for what was sown on good soil, this is the one who hears the word and understands it, who indeed bears fruit and yields, in one case a hundredfold, in another sixty, and in another thirty.’

The second window in the South Aisle in Saint Editha’s Church depicts David, Rizpah and Solomon (Photograph: Patrick Comerford, 2023)

Today’s Prayer:

The theme this week in ‘Pray With the World Church,’ the Prayer Diary of the Anglican mission agency USPG (United Society Partners in the Gospel), is ‘Reflections from the International Consultation.’ This theme was introduced on Sunday by Michael Clarke of the West Indies.

The Prayer in the USPG Prayer Diary today (28 July 2023) invites us to pray in these words:

We pray for all the staff, trustees and volunteers at USPG for all they do to bring the mission and objectives of the organisation to fruition.


Lord of all power and might,
the author and giver of all good things:
graft in our hearts the love of your name,
increase in us true religion,
nourish us with all goodness,
and of your great mercy keep us in the same;
through Jesus Christ your Son our Lord,
who is alive and reigns with you,
in the unity of the Holy Spirit,
one God, now and for ever.

Post Communion:

Lord God, whose Son is the true vine and the source of life,
ever giving himself that the world may live:
may we so receive within ourselves
the power of his death and passion
that, in his saving cup,
we may share his glory and be made perfect in his love;
for he is alive and reigns, now and for ever.

Yesterday’s reflection

Continued tomorrow

The third window in the South Aisle in Saint Editha’s Church depicts Samson, Ruth and Samuel (Photograph: Patrick Comerford, 2023)

Scripture quotations are from the New Revised Standard Version Bible: Anglicised Edition copyright © 1989, 1995, National Council of the Churches of Christ in the United States of America. Used by permission. All rights reserved worldwide. http://nrsvbibles.org