This week’s round up – Williamson fired over Huawei and the courts return after Easter

7 May 2019 by Thomas Hayes

Former Secretary of State for Defence Gavin Williamson. Credit: The Guardian.

Despite the return of the courts on Monday, it was another relatively light week in terms of decisions in the fields of public law and human rights. However, the High Court decided a number of interesting clinical negligence cases, whilst the Court of Appeal gave judgement in the case of TM (Kenya), R (On the Application Of) v Secretary of State for the Home Department [2019] EWCA Civ 784.

TM (Kenya) concerned a 40 year old Kenyan woman who faced deportation after her applications for leave to remain and asylum were rejected by the Home Office. She had been detained at Yarl’s Wood Immigration Removal Centre in advance of proceedings to remove her from the country, during which time she had been uncooperative with staff. In light of her behaviour and in advance of her removal to Kenya, she was removed from free association with other detainees. Such detention was authorised by the Home Office Immigration Enforcement Manager at Yarl’s Wood, who was also the appointed “contract monitor” at the centre for the purposes of section 49 of the Immigration and Asylum Act 1999.

She sought judicial review of the decision to deprive her of free association. The initial application was refused. She appealed to the Court of Appeal where she advanced three grounds, including that her detention was not properly authorised.

The court found no conflict in the dual positions held by the manager at Yarl’s Wood. The Home Secretary had legitimately authorised her detention under the principles described in Carltona Limited v Commissioners of Works [1943] 2 All ER 560. In addition, there was no obligation to develop a formal policy concerning removal from free association, as Rule 40 of the Detention Centre Rules 2001 was sufficiently clear to meet the needs of transparency.

In the news, last week saw Gavin Williamson, the Secretary of State for Defence, dismissed by the Prime Minister after a leak enquiry conducted by Mark Sedwill, Cabinet Secretary, Head of the Civil Service and National Security Adviser. Williamson was suspected of being the source of information which found its way into the Daily Telegraph concerning National Security Council discussions into the role of Chinese telecommunications firm Huawei’s involvement in the UK’s proposed 5G mobile network. Scotland Yard confirmed later that the information disclosed was not subject to the provisions of the Official Secrets Act, and thus no criminal inquiry would be forthcoming. Williamson maintains he is not the source. In the subsequent reshuffle saw former prisons minster Rory Stewart was promoted to the Department for International Development, meaning he will no longer be subject to his promise to resign if violence rates in prisons do not decline.

In addition, judgement was given in the High Court in the following cases;

• The court heard a case brought by a 26 year old woman in relation to a brachial plexus injury sustained following shoulder dystocia which complicated her birth in November 1992 – Taylor v Chesterfield Royal Hospital Nhs Foundation Trust [2019] EWHC 1043 (QB). The court was required to consider the standard of care delivered relative to that of established practice at the time. No claim had been bought by her parents, but the claimant researched her condition in adulthood and subsequently advanced her own claim after she developed a growing awareness of her condition. In summarising his approach to evidence supplied long after the events in question, John Kimbell QC (sitting as Deputy High Court Judge) referred to the principles outlined in Kimathi v. Foreign and Commonwealth Service [2018] EWHC 2066 (QB). Ultimately, the case was dismissed as the care delivered was deemed to meet the standards expected in 1992.
• Roberts v The Soldiers, Sailors, Airmen And Families Association & Anor [2019] EWHC 1104 (QB) – This case concerned a child born at German hospital providing services to UK Armed Forces (with whom his father served at the time). Negligence causing hypoxic brain injury was alleged against a midwife, with the Association and Ministry of Defence vicariously liable for her acts or omissions. Both defendants issued a Part 20 claim against the hospital, seeking contribution pursuant to the Civil Liability (Contribution) Act 1978 in the event they were found liable. The hospital contended that the 1978 Act was subject to choice of law rules, which would have applied German law to a claim for contribution. In such circumstances any such claim would be time barred. On a trial of this preliminary issue, the court upheld the decision in Arab Monetary Fund v. Hashim (No.9) The Times 10 October 1994, concluding that the 1978 Act has overriding effect and applies automatically to all proceedings brought in England and Wales, without reference to choice of law rules.

Lastly, the UKHRB and Law Pod UK have payed close attention to anonymity orders in personal injury cases. The field has become particularly topical following the case of Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB). See Angus McCullough QC’s posts here and here and Emma Louise Fenelon discussing the recent cases with  Rajkiran Barhey  in episode 77 of Law Pod UK.