Keep out, judge tells MPs

It’s dangerous to criticise judgments you don’t understand, chief justice says

“It is really dangerous to make any criticism of a judgment without a full understanding of the facts and the law,” the lady chief justice of England and Wales said at her annual news conference yesterday.

Answering reporters’ questions, Baroness Carr of Walton-on-the-Hill added:

I was deeply troubled to learn of the exchanges on 12 February at prime minister’s question time. I think it started with a question from the opposition suggesting that the decision in a certain case was wrong and, obviously, the prime minister’s response to that. Both the question and the answer were unacceptable.

Prime minister’s questions

These were the questions and answers as recorded in Hansard:

Kemi Badenoch: The Conservative government established the Ukraine family scheme. In total, more than 200,000 Ukrainians — mostly women, children and the elderly — have found sanctuary in the UK from Putin’s war. However, a family of six from Gaza have applied to live in Britain using this scheme and a judge has now ruled in their favour. That is not what the scheme was designed to do. This decision is completely wrong, and cannot be allowed to stand. Are the government planning to appeal on any points of law and, if so, which ones?

Sir Keir Starmer: Let me be clear: I do not agree with the decision. The leader of the opposition is right that it is the wrong decision. She has not quite done her homework, however, because the decision in question was taken under the last government, according to their legal framework. However, let me be clear: it should be parliament that makes the rules on immigration; it should be the government who make the policy. That is the principle. The home secretary is already looking at the legal loophole that we need to close in this particular case.

Kemi Badenoch: The prime minister did not answer the question. If he plans to appeal, the appeal might be unsuccessful and the law will need to be changed. If he does not appeal, the law will definitely need to be changed. He talks about a decision made under the previous government, but it was not made by that government; it was made by the courts. The issue we are discussing today is about judicial decisions. We cannot be in a situation where we allow enormous numbers of people to exploit our laws in this way. There are millions of people all around the world in terrible situations. We cannot help them all and we certainly cannot bring them all here. Will the prime minister commit to bringing forward that new legislation or amending his borders bill?

Sir Keir Starmer: I have already said that the home secretary has already got her team working on closing this loophole. We do not need to wait for that; we are getting on with that, because we are taking control…

In her first appearance before MPs last year, Baroness Carr had to put ministers right twice in the first five minutes

Carr’s response

Carr’s point yesterday was that both the leader of the opposition and the prime minister had given MPs inaccurate accounts of what the Upper Tribunal had decided in the case the two politicians were discussing. It was on that basis that they had both declared the judgment to be “completely wrong”.

This is how the most senior judge of England and Wales put it in her prepared remarks to reporters:

In the light of recent media coverage, it is right that I should say a few words about what appears to be a mounting campaign of attacks on judges. We, you and I, have a shared responsibility to uphold basic principles of our democracy of which we are rightly proud. It is not acceptable for judges to be the subject of personal attacks for doing no more than their jobs. Their jobs? To find the facts on the evidence before them and apply the law as it stands to those facts.

If they get it wrong, the protection is a challenge on appeal. If the legislation is wrong, it is parliament’s prerogative to legislate. It is really dangerous to make any criticism of a judgment without a full understanding of the facts and the law. The judgment is the only accurate source of information.

Judges are public servants acting independently. They do not court publicity and they cannot speak out to defend themselves. They speak only through their judgments and, frankly, judges deserve better.

In saying that the “judgment is the only accurate source of information”, Carr seemed to be implying that both Badenoch and Starmer had relied on media reports that morning rather than the 50-page judgment delivered by the Upper Tribunal a month earlier. She might reasonably have thought that both politicians would have asked their staff to brief them on the judges’ ruling.

Upper Tribunal ruling

The case involved two parents and their four children, all from Gaza. The father’s brother had left Gaza in 2007 and come to the United Kingdom, where he obtained citizenship. He wanted to bring his brother, sister-in-law and their children to the UK and had established that he could support them.

Their case turned on the question of whether keeping the family apart breached article 8 of the human rights convention, which requires respect for a person’s private and family life. The immigration tribunal had balanced the Gazans’ right to family life against the fact that parliament had chosen not to introduce a resettlement scheme for Palestinians.

Allowing the family’s appeal, the Upper Tribunal found that the balance between the public interest and the family’s interest came down strongly in their favour. “Put another way,” said the two Upper Tribunal judges, “there are very compelling or exceptional circumstances.”

The case was not, of course, decided under the misapprehension that the family were entitled to resettlement under a scheme set up for Ukrainians. Their applications had been made using the Ukraine family scheme form although they acknowledged that they could not qualify under this route or any other provisions of the immigration rules. They had chosen this form, the Upper Tribunal said, in the light of Home Office policy for applications outside the rules.

The Home Office has not announced whether it is seeking to appeal against the decision, perhaps concerned that an adverse decision from the Court of Appeal would not be helpful.

Carr’s concerns

After saying that she was deeply troubled to learn of the exchanges at last week’s prime minister’s questions, Carr continued:

It is for the government visibly to respect and protect the independence of the judiciary. Where parties, including the government, disagree with their findings they should do so through the appellate process. And, of course, MPs, just like a government body, also have a duty to respect the rule of law. I have taken this up, as you would imagine and expect… I have written to the prime minister and the lord chancellor.

Comment

Badenoch was wrong to imply that the Gazan family had been allowed to enter the UK on the basis of a scheme intended for Ukrainians. It’s not entirely clear why they applied under that scheme but there was never any prospect that they would qualify, as was accepted by all concerned.

The opposition leader was also wrong to deny that the family’s applications to the Home Office were made while the Conservatives were still in government. They were lodged on 25 January 2024 and refused on 30 May 2024. But their appeal to the first-tier tribunal was lodged shortly after Labour won the general election last July.

Starmer, as a lawyer, was wrong to describe the decision as “wrong”, given that his home secretary was apparently not seeking to appeal. He was also wrong to describe the judgment as a “legal loophole” that the home secretary was looking to close. Article 8 is not a loophole and his government is deeply committed to the Human Rights Act 1998, which allows it and the rest of the human rights convention to be enforced in the UK courts.

Above all, as Carr implied, the prime minister was wrong to undermine the separation of powers, as currently understood. Carr was careful during her news conference not to comment on government policy. Starmer should not comment on legal rulings, even those against his own government, in a way that undermines and belittles the courts. Attacking the judges is never the answer.

Update 1330: there is a detailed discussion of the case referred to above on today’s episode of Double Jeopardy, presented by Tim Owen KC and Ken Macdonald KC. You can listen on Apple or Spotify.