Round Up: Brexit and Barrymore both make appearances in a busy week…

17 December 2018 by Thomas Hayes

This week the eyes of the United Kingdom, and quite possibly the whole of Europe, were trained on Luxembourg for an eagerly awaited judgement from the Court of Justice of the European Communities. However, before we embark on a lengthy and forensic analysis of the German/Slovakian case of AlzChem v Commission (State aid – Chemical industry – Judgment) [2018] EUECJ T-284/15 (13 December 2018), we should pay some attention to the week’s legal Brexit developments…

The CJEU this week delivered judgement in the case of Wightman and Others – (Notification by a Member State of its intention to withdraw from the European Union – Judgment) [2018] EUECJ C-621/18 (10 December 2018). The case had been referred to the Luxembourg court by the Inner House of the Court of Session and addressed the feasibility of unilateral revocation of Article 50 TEU. The UK government sought to have the application ruled inadmissible on the grounds that the question posed was hypothetical, no such revocation of Article 50 having been attempted or even contemplated. The European Council and Commission meanwhile contended that although revocation was possible, the right was not unilateral. They appeared to fear abuse of Article 50 by member states who could unilaterally seek to terminate their membership of the European Union, revoke that termination and then repeat the exercise as necessary to circumvent the two-year time limit imposed by Article 50 on withdrawal negotiations.

The court rejected both arguments, holding that Article 50 must be unilaterally revocable otherwise a country would have effectively left the EU at the point of triggering Article 50. Its membership from this point onwards would otherwise be subject to the approval of the other members. Furthermore, the Vienna Convention on the Law of Treaties was held to afford a unilateral right of revocation of notifications made under treaties until such time as they came into effect.

In the time honoured tradition of London buses, after waiting ages for judgement in a Brexit related case before the higher courts, we were treated to a second following right on the heels of the first – The UK Withdrawal From The European Union (Legal Continuity) (Scotland) [2018] UKSC 64 (13 December 2018). The UK Supreme Court gave judgement on a referral from the Attorney General and Advocate General for Scotland as to the ability of the Scottish Parliament to legislate on matters devolved to Holyrood but currently the subject of EU law. Such law will no longer be applicable after the UK’s withdrawal. To address this very issue, Holyrood in March 2018 passed their own withdrawal bill (the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill) to cover such matters after disputing the manner through which powers were to be repatriated to Edinburgh and Westminster from Brussels after the UK leaves the EU. The Supreme Court held that Edinburgh did have the legislative competence to pass such a bill but that a requirement within it for MSPs to consent to UK wide Brexit laws was outside the scope of Holyrood’s remit. The judgement set off a series of recriminations between Westminster and Holyrood which seem likely to run going forward as we move towards the March 29^th deadline for withdrawal.

Meanwhile, in other news…

• Former Egyptian leader Hosni Mubarak had his claim at the Court of Justice of the European Union dismissed with an order to pay the costs incurred by the European Union in defending the action – Mubarak v Council (Common foreign and security policy – measures taken in view of the situation in Egypt- Judgment) [2018] EUECJ T-358/17 (12 December 2018). Mubarak had claimed interference with his fundamental rights, a lack of legal basis for such interference and a lack of proportionality after he was subject to restrictive measures following the Egyptian Revolution of 2011.

• 1 Crown Office Row’s Sarabjit Singh successfully represented the Home Department in a case concerning the validity of restrictions imposed by the Home Office on a Rwandan former asylum seeker who had gone on to commit offences which made him the subject of a deportation order – The Secretary of State for the Home Department v SM (Rwanda) [2018] EWCA Civ 2770 (11 December 2018). The individual had been made the subject of restrictions by the Home Office after he was granted bail by a First Tier Tribunal Judge (FTT), who in doing so failed to comply with the provisions of paragraph 22 of Schedule 2 of the Immigration Act 1971. Subsequently, the Upper Tribunal had regardless declared his bail valid and quashed the restrictions imposed by the Secretary of State. The Secretary of State in turn appealed. The court held that Parliament’s intention had been that a failure by an immigration officer or FTT judge to comply with the conditions required by the 1971 Act when granting bail was that such bail would be invalid. Consequently, the Home Secretary was entitled to impose her own conditions on the individual.

• Michael Barrymore was awarded nominal damages only after the Chief Constable of Essex Police successfully appealed his award of substantial damages for false imprisonment – Parker v The Chief Constable of Essex Police [2018] EWCA Civ 2788 (11 December 2018). The celebrity had been arrested in 2007 after the death on his premises of one of his guests in 2001. At the time of arrest, it was admitted by Essex Police that the arresting officer did not personally have the reasonable grounds for the necessary suspicion to justify his arrest required by s. 24(2) of the Police and Criminal Evidence Act 1984 (“PACE”). However, the Court of Appeal held that there had been reasonable grounds to suspect him of committing an offence and thus that it had been necessary to arrest him. Despite his arrest being unlawful, a lawful arrest could have been effected, and thus he was entitled to nominal damages only.

• The Court of Appeal dismissed an appeal against the striking out of a claim against the Secretary of State for Justice brought by a serving prisoner – Khosa v The Secretary of State for Justice [2018] EWCA Civ 2801 (13 December 2018). The prisoner had brought a wide variety of general allegations involving Articles 3, 6, 8 and 10 of the European Convention as well as multiple allegations of indecent assault inflicted against him by identified prison staff. His case had been repeatedly struck out on the papers at first instance on the basis that it had no realistic prospect of success. However, he had succeeded in his being granted leave to appeal in relation to the specific assault allegations given the gravity of the subject matter. He sought however to pursue his claims in full and was granted further leave to appeal in relation to his Article 3 allegations on the basis that they were not specifically addressed in the previous judgement striking them out. In a short judgement, the Court of Appeal dismissed his extended claims as having no prospect of success.

• Monica, R (on the application of) v Director Of Public Prosecutions [2018] EWHC 3469 (QB) (14 December 2018). An application for judicial review of the decision of the Director of Public Prosecutions not to prosecute ex-DC Andrew Boyling for offences including rape, indecent assault and misconduct in public office was dismissed by the High Court. The application had been bought by an environmental activist who entered into a relationship with the policeman who had infiltrated their movement.

Elsewhere on the UKHRB:

• Emma-Louise Fenelon will be posting on the latest episode from Law Pod UK where she interviews Jeremy Hyam QC on the five most important inquest cases of 2018. The podcast goes up at 4pm on Monday 17th December, and Emma’s post provides a summary and analysis of the judgment in the Poppi Worthington case. Judgement was handed down just after the interview was recorded.