Round Up: Heated politics, immigration matters, and a win for The Mail Online

21 January 2019 by Thomas Hayes

Photo credit: The Guardian

In his 1748 text ‘The Spirit of the Laws’, Montesquieu proposed his initial concept of what would ultimately become known amongst political scientists as the separation of powers. Mercifully, for both the writer of this blog and the time poor reader, this weekly round-up of events need only concern itself with one of those branches of government…

Despite best efforts however, the topic of European politics is never truly out of the picture. This week saw judgement given in a series of cases by the European Court of Human Rights concerning Article 6 rights in Hungary – Boza and Others, Kurmai and Others, Csontos and Others, Kvacskay and Others, Bartos, Kovács-Csincsák and Komlódi, and Borbély and Others v. Hungary. The EU member state has increasingly been the focus of continent-wide concerns about the rule of law in central Europe, which in particular relate to the policies of Prime Minister Viktor Orban and his Fidesz party. Similar concerns have spread to neighbouring countries including regional heavyweight Poland, where the ruing Law and Justice Party has repeatedly clashed with both Brussels and the country’s judiciary over suggestions that judicial appointments have become politically motivated.

Budapest this week saw widespread protests against Fidesz’s enactment of a law allowing employers to compel workers to do up to 400 hours of overtime a year. The measure has been dubbed a “slave law” by the opposition and follows a year in which the European Parliament voted to bring disciplinary proceedings against Hungary for rule of law violations, whilst the Central European University relocated to Vienna after the government enacted laws which some commentators felt directly penalised the liberal institution.

On the 17^th of January, the court ordered that thirty three parties be awarded compensation for breach of their Article 6 right to a hearing within a reasonable time by a tribunal, with one individual waiting as long as a decade for resolution. Some claimants also succeeded under Article 13, with the court ruling that there was a lack of any effective remedy in domestic law following the violation of their other convention rights.

The week also saw our own Supreme Court give judgement for the first time this year – Reference by the Attorney General for Northern Ireland  (No 2) (Northern Ireland). The court was required to consider the ability of civil servants to make decisions on planning applications in the absence of a minister. The Northern Ireland Assembly has not sat since January 2017 due to the ongoing dispute between Sinn Fein and the Democratic Unionist Party.

The Attorney General for Northern Ireland had asked for the guidance of the Supreme Court following the decision of the Northern Ireland appeals court in re Buick, where it was held that the relevant department did not have the power to make the decision to grant planning permission for a major waste incinerator in the absence of a minister. However, the court preferred that such points of law be decided by reference to established facts, and adjourned the case.

The domestic courts also saw a steady stream of noteworthy cases, which unlike the above strayed from the overtly political.

• The Court of Appeal has upheld the rejection of an asylum application by an Iranian woman who claimed that her return to Iran would result in her forced marriage to an eighty year old – KS (Iran) v Secretary of State for the Home Department [2019] EWCA Civ 6. The court approved the view of the Secretary of State that internal relocation options were available to her, and in an interesting passage, quoted the SOS’s view that the enterprise and initiative she had employed in fleeing Iran and clandestinely entering the UK ought to stand her in good stead upon her return.

• AB, R (On the Application Of) v Secretary of State for Justice [2019] EWCA Civ 9 –  Prolonged solitary confinement does not necessarily breach Article 3. In this case the appellant, who had been detained at Feltham Young Offenders’ institution, claimed that measures enacted during his detention had interfered with his rights to be free from inhuman and degrading treatment. He had been confined to his cell whenever other detainees were outside of their cells, other than for a short period where he would be supervised by three officers. Such measures had been put in place due to his challenging behaviour, including multiple assaults on staff. The court rejected submissions that the court of first instance had failed to take adequate account of the UN Convention on the Rights of the Child or UN Convention Against Torture. However, the court also rejected a cross appeal by the Secretary of State for Justice that the removal of his rights to association did not engage Article 8 of the ECHR. As segregation from others constituted an interference with the right to respect for private life as interpreted by both Strasbourg and the domestic courts, it required justification under article 8(2).

• The High Court has allowed an appeal by the Home Office against the decision to award damages to a Nigerian woman and her child for false imprisonment at the hands of immigration officials – Home Office v TR & Anor [2019] EWHC 49 (QB). The first instance judge held that the child could not be detained on immigration grounds as he was a British citizen and that the burden of proving otherwise was on the Home Office where his citizenship was uncertain. His mother had been detained to affect her removal from the UK. However, this had initially been held to be unachievable within a reasonable time scale given the pending judicial review into the decision regarding her son. Consequently, the judge ruled she ought to have been released from detention and was thus also falsely imprisoned. The Home Office successfully argued that s3(8) of the 1971 Immigration Act places the burden of proof in such circumstances on the one asserting citizenship, and that the commencement of legal proceedings did not render detention unlawful.

• Finally, the High Court has dismissed a libel action brought by Carol Carruthers, former Deputy Assistant Director of Children’s Safeguarding at Haringey Council, against the owners of the Mail Online and The Sun – Carruthers v Associated Newspapers Ltd [2019] EWHC 33 (QB). The defendants had published stories concerning the claimant’s sending of suggestive photographs to a gentleman she had met on a dating website. The judgement relied significantly upon the honest opinion defence outlined in section 3 of the Defamation Act 2013. The publishers were entitled to summary judgement as her claim had no likelihood of success, this despite the articles containing significant content alluding to the Baby P and Victoria Climbie scandals at Harringay council which predated the claimant’s actions by many years. Claims concerning the media’s misuse of private information and failures with regards to data protection remain outstanding.