Round Up 11.11.19 – Extinction Rebellion, Article 8 and some big names make appearances in the courts…

11 November 2019 by Thomas Hayes

An Extinction Rebellion protester is removed by police in central London. Credit: The Guardian.

As the general election campaign accelerated this week, the political fall out from the publication of the Grenfell Tower Inquiry contributed to some awkward headlines for both politicians and lawmakers. However, this was by no means the only legal news of the week…

Environmental campaign group Extinction Rebellion (XR) succeeded in having the Metropolitan Police’s ban on their “autumn uprising” ruled unlawful at the High Court – Jones & Ors v The Commissioner of Police for the Metropolis [2019].

The case turned on the lawfulness of the exercise of powers by the police under section 14(1) of the Public Order Act 1986 to ban XR’s protests earlier this month. 

The court ruled that in exercising section 14 powers, the police were required to identify a location to be covered by the powers conferred by the Act. Separate gatherings, separated both in time and by many miles, even if co-ordinated under the umbrella of one body, were not held to be one public assembly within the meaning of section 14(1). Consequently, the decision of the police to impose the condition across a wide area of London for several days was unlawful, being outwith the powers conferred by section 14(1). 

In other news, the Court of Appeal had the opportunity this week to consider the right to a family life under Article 8 of the European Convention of Human Rights and the consequences when the partners of a British Citizen are refused leave to remain – Lal v The Secretary of State for the Home Department [2019] EWCA Civ 1925 (08 November 2019).

Appendix FM to the Immigration Rules outlines the criteria the Home Secretary should consider when considering if such partners should be granted leave to remain. Mrs Lal’s application was refused on the grounds that the Secretary of State did not accept that the relationship between Ms Lal and her husband was genuine and subsisting and that they intended to live together permanently in the UK, as required under the Immigration Rules.

The individual had successfully appealed to the first tier tribunal where it was accepted by the judge that the couple were in a legitimate relationship and would face insurmountable obstacles to family life continuing outside the UK. However, the Secretary of State succeeded in the Upper Tribunal in showing that the husband’s objection to moving to India with her on the basis he could not tolerate the hot climate did not constitute an insurmountable obstacle. Whilst not rejecting the husband’s assertion, the Upper Tribunal framed this as an objective test, rather than a subjective one.

The Court of Appeal found various errors of law in the reasoning of the Upper Tribunal, consequently making an order to set aside its decision. Amongst other findings, it judged the requirement for the family to move to India to continue their relationship to be an unjustifiable hardship disproportionate to any public benefit. The Home Secretary has subsequently committed to reconsider the case in light not only of the court’s judgement, but the changing circumstances of the family involved. 

In other cases…

Bailey & Ors v Glaxosmithkline (UK) Ltd [2019] EWCA Civ 1924 (08 November 2019). The Court of Appeal rejected an appeal against an initial judgement that a case bought against GlaxoSmithKlein by litigants alleging harm from Seroxat prescriptions be limited only to its symptoms on discontinuation, rather than the relative risks and benefits of the drug generally. The drug has been linked to severe symptoms on discontinuation, with the claimants submitting that such symptoms are worse on Seroxat than with similar drugs of the same pharmaceutical category.

In Irani v Duchon [2019] EWCA Civ 1846 (06 November 2019), the court gave guidance about the circumstances where the general method of assessing future loss of earnings via the use of a multiplier/multiplicand and Ogden Tables would be inappropriate, and the use instead of lump-sum Blamire awards in respect of future earnings and Smith v Manchester awards in respect of future disadvantage on the labour market.

Lastly, in the High Court, judgement was given in a preliminary trial in relation to libel proceedings bought by Lord Sheikh, a Conservative peer, against the Mail Online – Sheikh v Associated Newspapers Ltd [2019] EWHC 2947 (QB) (04 November 2019). The court had been asked to consider the meaning of an article published in August 2018 under the headline

EXCLUSIVE: Top Tory peer’s appearance at Corbyn’s ‘hate conference’ in Tunisia comes after YEARS of rubbing shoulders with Islamists, hate preachers and Holocaust deniers,

as well as whether such meaning was a statement of fact or expression of opinion. The court found the natural and ordinary meaning of the article was that there were strong grounds for believing Lord Sheikh to be an anti-Semite, and that the bulk of these meanings consisted of statements of fact.

Meanwhile on the blog…

Conor Monighan reviews the ALBA Conference

David Burrows reviews the rights of children

And on Law Pod U.K Rosalind English discusses South Africa’s constitutional development post apartheid with Kate O’Regan, Director of the Bonavero Institute of Human Rights at Oxford University.