Nationality and Borders Bill

Debate between Lord Judge and Lord Brown of Eaton-under-Heywood

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I support the noble Baroness, Lady Chakrabarti. It is perfectly obvious that the Commons reasons tell us that it agrees that the legislation should be compliant with our international obligations. The Minister has just told us that everything that we do will be compliant with them. I regret that a number of us take the view that these provisions do not so comply. The decision will ultimately be made by a court. If the Commons is right, that is well and good—fine, there would be nothing to argue about—but, if we are right and the view of the Commons is wrong, the judge would be bound by this legislation to disapply the convention and the protocol. No one would be able to say, “Ah, but the Commons reasons say that it is compliant”. The Commons reasons will not be in the legislation.

It is very simple: we respectfully suggest that the Commons should be asked to think again and reflect on the consequences if the advice that it is receiving is wrong and the advice that we are suggesting is right, and to avoid the problem that its own expressed legislative intention—that the legislation should be compliant—will prove to be wrong. It is very simple—all doubt can be avoided by this amendment.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, my focus in this group will be on Motion C1 of the noble Baroness, Lady Chakrabarti, but I crave your Lordships’ indulgence to make one or two introductory remarks.

There could never be a good time for this particular Bill, but we can quite sure that there could hardly be a worse time. Make no mistake: the Bill will affect our standing on the world stage. It seems to me fairly obvious that the Bill was drafted with one particular major objective in mind: to make asylum seeking in the UK as unattractive as one can, to deter and discourage as many prospective refugees from coming here as one can and to refuse such claims as one can.

Of course I recognise that we have special refugee resettlement schemes for a number of substantial groups from around the world, from Syria, Afghanistan, Hong Kong and now—if, alas, somewhat delayed—Ukraine. I also recognise that there is a real and growing problem with a number of refugees—not, of course, those profiting from these schemes—so desperate as to risk their lives in the tragedies of crossing the channel. The draconian measures proposed here will not solve that problem and are not justified—as if aspiring refugees will henceforth say to each other, “Don’t bother coming to the UK. It is very unwelcoming and inhospitable. Just read this Bill”. I do not believe that for all the world and, frankly, I regard it as entirely fanciful. Unless noble Lords believe that this will solve the problem, we should continue to resist at least the most objectionable of the measures being promoted.

As to these, coming to Motion C1, my focus as an ex-judge who used to decide quite a lot of these asylum cases is above all on the legality of these proposals. I truly believe, as do many others, that several of these provisions flagrantly breach our obligations as interpreted by the UNHCR, the body responsible for that under the convention. That is why Motion C1 is all-important. Several later clauses in this part of the Bill purport to define or redefine our obligations under the convention. Of course, as my noble and learned friend Lord Judge says, the Government assert that they do so absolutely fairly and that they give effect to the convention, but that is not the view of a great number of respected bodies besides the UNHCR, such as the Bingham Centre, the Joint Committee on Human Rights and so forth.

On Report, we passed the amendment which Motion C1 is designed to replace and effectively reproduce. Having passed it, we did not go to the lengths of voting down the individual substantive clauses that redefine all the various ingredients of our obligations under the convention. Instead, we inserted that amendment and that is what we must do again. The Government’s objection to it is no more and no less than that it is not necessary, because they are going to comply with the convention anyway. I always think that the weakest grounds for objecting to any clause is that it is not necessary. I respectfully suggest that here it is crucial. I must explain why and noble Lords must forgive me as I do so.

On 28 February, during Report, the Minister then promoting the clause of the Bill, the noble Lord, Lord Wolfson, rightly said of the proposed new clause—the Baroness Chakrabarti clause, if I may call it that—that it

“potentially leaves the nature of obligations and terms under the convention open to the interpretation of the courts, removing the certainty that we are trying to achieve.”

I then intervened before the Minister sat down, because that rang a great red bell with me. I asked whether I rightly understood him as saying by that that, without this amending provision, the courts would be excluded from considering whether the Bill correctly implements the convention obligations. That he confirmed, rightly observing that the courts

“are not there to go behind legislation”.—[Official Report, 28/2/22; col. 609.]

As I suggest, we then wisely passed the amendment introducing the new clause by 218 to 140, a majority of 78.

We come then—I am anxious not to bore the House, but it is necessary to get this point across—to the Commons debate on the Lords amendments on 22 March. That makes depressing reading when you consider how cursorily—and, dare I suggest, superficially —our various amendments, passed after long, painstaking hours, were summarily rejected. Here, one finds that, in response to the suggestions of some Members that it would indeed be a good idea to leave the amendment in, because some of us were saying that the legislation would otherwise be in flagrant breach, the Minister said:

“I … make the crucial point that we have an independent judiciary in this country, and it is open to people to bring points of challenge where they believe that there are grounds for doing so.”


This the Minister described as a

“cornerstone … evolved over centuries”.—[Official Report, Commons, 22/3/22; col. 185.]

I do not for a moment suggest that the Minister was intentionally misleading the House, but the plain fact is that, as the noble Lord, Lord Wolfson, had rightly agreed at Report, Mr Pursglove was quite wrong to suggest that there was no need for this amendment because the courts would anyway deal with the challenge to the legislation based on suggested non-compliance. I repeat: the amendment is vital. The courts otherwise cannot go behind the definitive clauses in the Bill and would have to apply them, compliant or not. Without this clause, the lead argument is pre-empted and foreclosed, as the substantive clauses operate, if I may use the term, as ouster clauses of the courts’ jurisdiction. I urge your Lordships not to accept them.

European Union (Withdrawal Agreement) Bill

Debate between Lord Judge and Lord Brown of Eaton-under-Heywood

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, although I am one of the few legal Cross-Benchers who has not been Lord Chief Justice, I too want to say a few words in support of these amendments.

I wonder whether my noble friend Lady Deech has recognised the precise area that we are concerned with here, which is retained EU law: that is, decisions of the European Court of Justice pre the end of the transition period, not decisions to come thereafter which can merely be taken account of and do not bind. So we are concerned with the actual decisions taken before we finally part ways.

Under our system, it is normally for Parliament, of course—and to a very limited extent for Ministers, by secondary legislation—to legislate: to declare what the law is, almost invariably for the future. Only rarely do we give law retrospective effect. But in 1966, as I am sure we all know, the practice statement in the House of Lords said for the first time that we could depart from what has otherwise been the sacrosanct principle of stare decisis—of precedent in the interests of certainty and finality—subject to a rigorous test. It is a rarely used power, now transferred to the Supreme Court and indeed, by a decision that I wrote in 2007, to the Privy Council. In certain limited circumstances, the courts can depart from their previous decisions.

The sort of consideration or test is whether the earlier ruling is now judged to have been plainly wrong, and how long it has stood. If it is recent, that is one thing, but if it has stood for a long time there may be many who have acted in reliance on it. Let us not forget that when the court exercises this power it does so by declaring what the position is and always has been. It therefore applies retrospectively and leads to cases where those affected by it, although they may run into time difficulties, may need leave to appeal, or to bring proceedings, out of time. They may then say, “That is now established as the law and therefore we would like to invoke it.”

In the ordinary way, we only use this power where the individual case leads to manifest injustice or is contrary to public policy, or where the established line of authority unduly restricts the development of the law. In a very interesting and powerful piece in the Spectator last week, one of the excellent contributors to the Policy Exchange, Professor Richard Ekins, quarrels even with Section 6(4) and (5) of the 2018 Act, which already provide in effect for the Supreme Court, and in certain circumstances the High Court of Justiciary in Scotland, to have the same powers to reverse EU-retained case law; in other words, not to follow what they would otherwise need to follow, the already decided ECJ decisions, in the same way as they can not follow existing domestic law.

Professor Ekins suggests that that

“would introduce unnecessary legal doubt and improperly empower the Court to make new law.”

I see that point, of course, although I would not deprive the Supreme Court of this power. However, it strongly reinforces what he already said in the article in support in effect of Amendment 21: that it would be absurd for some lesser body as yet unknown, and I rather suspect not quite thought out, to decide who should, at a lower level, be authorised by ministerial regulation to depart from retained EU case law. That would indeed be a recipe for chaos, confusion and uncertainty.

As to the other main point, Professor Ekins wants all the power to change EU case law to be either the power of the Minister to promote by way of primary legislation—which of us would quarrel with that; it is plainly the correct approach?—or for the Minister by secondary legislation. That is where the real problem lies. If the proposed change of legal direction from earlier rulings of the ECJ involves obvious fresh policy choices, such as the sort of things instanced by my noble friend Lord Anderson, it will affect some already established important legal principle and is plainly an issue for Parliament by primary legislation. Secondary legislation could be appropriate here only if it is demonstrably necessary either to work cogently with some clearly established new post-Brexit situation or something of that character.

That said, I share Professor Ekins’s objection to involving individual judicial officeholders, however senior and distinguished, in the process of ministerial law-making. This again chimes with what my noble friend Lord Anderson said. I support both the amendments. Let the Supreme Court, as under the 2018 Act, have this rare power that will be seldom exercised, but mostly it should be for primary legislation to depart from well-established legal principles.

[Lord Judge (CB)]

My Lords, like the noble and learned Lord, Lord Neuberger, I too would welcome some clarity in this field, but I do not think that clarity can be provided by Ministers creating regulations behind the scenes and then serving them up to the House of Commons, which has not rejected any ministerial regulation since 1979, or this House, which has rejected them on minimal occasions, and by doing so in 2015 apparently caused a constitutional crisis. The issue is very simple. Of course there should be clarity and of course it should be provided by Parliament. We will now be considering what is domestic law. We call it EU case law, but the whole point of the process that we are going through is that it will become British EU-retained law. It will be British law and no longer EU law. It is that which will be interfered with.

I could spend some time going through the doctrines of precedents. They are very clear and simple. I remind the House that they have provided a way of achieving legal certainty. You can conduct your affairs with a degree of legal certainty. You can conduct your business, conduct your tax affairs and deal with foreigners outside this country. They tend to want to come to this country because the law is certain and clear. Yet simultaneously, and it is one of the great glories of our system, we have common law that goes back to 1189 that has enabled the law to develop, flourish and adapt as and when it became appropriate and necessary to do so. The greatest tribute to the common law is that it carries the day in all English-speaking countries. It is still used in India and Australia—adapted, of course, because that is one of its fundamental strengths, to conditions there.

I gave a lecture and talked to people who have suffered the horrendous problems of Bhopal, which not many of us will forget. There is a perfectly good legal principle—British, as it happens—called Rylands v Fletcher, which decided in Victorian times to create a new system. If you bring dangerous things on to your land, it is your job to keep them in, and if they get out, you are responsible. That was the common law working with absolute certainty to produce a new way of looking at the responsibilities of the landowner. So between them, the principles of legal certainty and the use of the common law enabled our law to develop.

Here, the noble and learned Lord the Minister, as the noble Lord, Lord Beith, reminded us, with his own personal experience, asserted on Monday by repeating that

“there is no intention on the part of the Government to extend the power to every court and tribunal in the land.”—[Official Report, 13/1/2020; col. 555.]

But that is the power that is being given by this legislation as it stands to a Minister. If that is not the Government’s intention, what on earth is the point of giving the power in the legislation to the Minister?

Where do we go? This permits the Minister to make regulations that would create jurisdiction in any court at any level to disapply retained EU case law, which is our law. Just think of the district judge sitting in, for example, Pontypool County Court, bound by all the decisions of all the courts above him or her by our own native law—Occupiers’ Liability Act, Unfair Contract Terms Act and even the Finance Act—who is then told, “Here is the EU case law. You are not bound by anyone’s decisions on that, so take a running jump at it.”

That in truth is what the poor judge will have to do. Think of his poor colleague in Penrith County Court, faced with a large organisation taking advantage of this new system by going to a small county court without the experience to respond to: “This bit of EU case law really troubles us. Your honour is not bound by it, so here are the reasons you should find for us.” To be fair, it could happen the other way around with a litigant who knows perfectly well that under case law he has no case, going to the same judge and saying, against a large business organisation, “They cannot rely on the case law any more, because you are not bound by it.” The same could happen in a tax tribunal or a VAT tribunal. All of this is quite unnecessary because, as the Minister has said, that is not the Government’s intention.

I would love to have a go at Henry VIII, whether he is filled with fat or with whatever drug to describe this condition today, but I am going to resist the temptation to do so, because I want the Government to realise that this is nothing more than a reasonable argument that needs to be addressed. All that is needed, without causing any delay to Brexit or creating a problem on 31 January, is for the Government to decide what arrangement should be put before Parliament in primary legislation to achieve the desired objective.

As an example, I did a bit of drafting last night so that they could say, “The Supreme Court and/or the Court of Appeal in England and Wales and the High Court of Justiciary in Scotland are not bound by retained EU case law”. Or the Government could say that those courts may depart from any retained EU case law if and when. It is not difficult, and I will offer myself to the Minister to sit down and talk it over with him if that would help. If Ministers are listening, perhaps that offer will be taken up. However, we have to address the principle, because the slightest incursion into judicial processes must be for Parliament, not for Ministers.

Sanctions and Anti-Money Laundering Bill [HL]

Debate between Lord Judge and Lord Brown of Eaton-under-Heywood

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 29th November 2017 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I support the amendment. I recognise that it is not an entirely simple point; it is not perhaps as straightforward as some of the amendments with which we dealt earlier. I see the force of the Government’s argument that the UK has no alternative under international law but to give effect to our obligations under the UN charter; indeed, Article 103 of the charter expressly dictates that these obligations prevail over any conflicting international law obligations. In the 2010 Supreme Court case of Ahmed, I ended my dissenting judgment with the hope that the majority view would not be thought to indicate any weakening of our commitments under the charter. In Ahmed, however, I also stressed the draconian nature of these orders. I said:

“The draconian nature of the regime imposed under these asset-freezing Orders can hardly be overstated … they are scarcely less restrictive of the day-to-day life of those designated (and in some cases their families) than are control orders. In certain respects, indeed, they could be thought to be even more paralysing”.


It strikes me as highly relevant to the amendment that in the case of Ahmed the Court of Appeal had held—and before the Supreme Court Treasury counsel for the Government argued this in terms—that orders implementing a UN resolution are reviewable, and that on such a review the court can grant relief directed against any UK public authority, not against the United Nations. That, essentially, is what the amendment seeks to achieve, or at least to clarify.

I note not least that one of the team of counsel instructed for the Government in the Ahmed case was Sir Michael Wood, who had been the senior legal adviser to the FCO. Clearly he had seen no insuperable obstacle to the court having this judicial review jurisdiction—the very thing that the amendment seeks to put beyond doubt that the court has. On balance, therefore, my concluded view is that we can and should make plain that the court will have this jurisdiction.

[Lord Judge]

My Lords, my name is attached to the amendment. I shall not repeat what the noble Lord, Lord Pannick, had to say. The issue is simple: we must honour our obligations to the United Nations but if, having honoured them, there is an injustice, we must provide a remedy.