In memory of Lord Brown

July 10, 2023

The death of Lord Brown of Eaton-under-Heywood means that Britain has lost a great jurist – but also, unusually in this era, a formidable parliamentarian as well. He was a modest, unassuming man (few non-lawyers will know his name), yet he made a remarkable contribution to the law and government of this country, embodying the best of the common law constitutional tradition, which requires judges to be independent, not only from the executive, but also from one another.

Simon Brown was appointed to the High Court in 1984, becoming a Lord Justice of Appeal in 1992 and then a Law Lord in 2004. He was one of the last of the old Law Lords, moving across to the new Supreme Court in 2009 and serving there until 2012. For the next eleven years he continued to serve as a crossbench peer, contributing incisively to Parliament’s deliberations, only retiring from the House of Lords on 19 June this year due to ill health.

Brown was a specialist in the law of judicial review, but understood how government worked and was not automatically disposed to decide against it. Like a number of other distinguished judges, he was appointed to the bench after serving for five years as First Junior Treasury Counsel (Common Law) – that is, as the Treasury Devil, the barrister who represents the government in the civil courts.

Brown was a centrist, orthodox judge who would have been surprised to find himself disagreeing with some better known colleagues – despite his admiration for their intellects. He objected sharply to Lady Hale’s free-wheeling approach to statutory interpretation in the Yemshaw case (2011), in which the majority misread ‘violence’ in the Housing Act 1996 to include psychological abuse more generally, which changed who was entitled to priority for housing. Brown pointed out that the majority’s approach made a nonsense of the statutory scheme, which was supposed to protect those in imminent risk of physical harm, and departed from Parliament’s intention, which was that ‘violence’ in this context meant physical violence only.

Likewise, in the Quila case (2011), Brown disagreed that the Home Secretary had acted unlawfully in requiring a minimum age (21 years) in relation to marriage visas. For the majority, the Home Secretary had interfered with the right to marry in order to combat the evil of forced marriage but there was no guarantee that it would work. Brown reasoned that in applying the Human Rights Act 1998 courts should recognise that the executive is often better placed to make predictions about future events and to take responsibility for them. In conditions of uncertainty, it was not for the court to prefer its own view to that of the Home Secretary.

In Al-Skeini (2007), Brown ruled that the 1998 Act had a strictly limited application outside Britain, effectively only to military bases. When the case came to Strasbourg, the European Court of Human Rights sharply expanded the ECHR’s territorial application, such that it now applies whenever the UK carries out military operations abroad.

Proud of his own military service from 1955-1957, Brown was very concerned about the extent to which human rights law was being deployed against UK forces, not only in Iraq and Afghanistan but also in Northern Ireland. After he left the Supreme Court, he spoke often about the problem of lawfare and strongly supported Policy Exchange’s critique of the law as it had developed.

He was also highly critical of the Supreme Court’s decision in Evans (2015), which concerned the so-called ‘black-spider memos’ written by Prince Charles, as he then was, to ministers. The majority judgments, requiring disclosure of the letters, effectively excised from the Freedom of Information Act 2000 the Attorney General’s statutory power to block disclosure of information in the public interest. Brown wrote that the judgments ‘are not merely mistaken but give rise to a worrying impression of a tendency towards judicial supremacism. I should certainly have joined [the] dissent.’

As a cross-bencher, Brown campaigned tirelessly for those who were the subject of sentences of imprisonment for public protection (IPP). These sentences were abolished in 2012 but the change was not made retrospective and thousands remain subject to them. In 2021, Brown termed the IPP sentence ‘the greatest single stain on the justice system’ and one may hope that the new Lord Chancellor is considering urgently how best to correct this injustice.

More recently, even while increasingly ill, Brown contributed to public deliberation about the Illegal Migration Bill – parting company with many other jurists to defend the principle behind the Bill, which aims to make the Channel crossing futile. Removing from the UK those who cross from France is compatible with the Refugee Convention 1951, he rightly argued, but the policy should be paired with a firm commitment to accept more refugees by other (safer and more orderly) routes.

He was determined to play his part in parliamentary deliberation to the very end. His final public intervention was to support legislation to reverse the Supreme Court’s judgment in Adams (2020), which was necessary to prevent the possibility of Gerry Adams from wrongly being compensated and, especially, to restore the Carltona principle which the judgment put in doubt. In the Report Stage of the Northern Ireland Troubles (Legacy and Reconciliation) Bill, an amendment to reverse Adams was debated and peers lined up to pay tribute to Brown and to note the significance of his critique of the judgment. In the Third Reading, on 4 July, the House accepted the government’s amendment reversing Adams, due in no small part to Brown’s intervention.

Lord Brown lived a full life of public service, including inter alia as Intelligence Services Commissioner and as Chairman of the Lords Conduct Committee. On the bench and in the House, he was a quintessential establishment figure, upholding and passing on the best of the common law constitutional tradition in which he was formed – and never afraid to be unfashionable.


This article was originally published in The Spectator

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