The Weekly Round-up: Northern Ireland Protocol, public Parole Board hearings, and SLAPPs

25 July 2022 by Matthew Johnson

In the news

Last week, the EU launched new legal action against the UK over the Northern Ireland protocol. The four new claims, which concern a failure to apply the customs and tax rules as agreed in 2019, are prompted by the Northern Ireland Protocol Bill passing through parliament that plans to discard the arrangements. Under the bill, companies in Great Britain who wish to export to Northern Ireland could choose between meeting either the UK or the EU regulatory standards. The EU’s Brexit commissioner described such terms as “illegal”, and justified the action as a response to the UK’s “unwillingness to engage in meaningful discussion since February”. The four new challenges come on top of three other cases already underway, all of which will come before the European Court of Justice.

Charles Bronson, “Britain’s most notorious prisoner”, is the first person to formally ask for a public Parole Board hearing following rule changes that came into force on Thursday. In deciding whether to grant a public hearing, the board’s chairman will take into account the victims’ wishes, the risk of trauma, the vulnerability of the prisoner, and whether any witness evidence would be affected. The reform followed a case in 2020 in which Bronson successfully argued that Ministry of Justice regulations preventing public hearings breached his right to a fair trial. While the normal position remains that hearings will be private, the new rules allow for prisoners to request publicity, and Bronson’s hearing is expected to be held publicly late this year or early 2023.

In other news

• The UN International Court of Justice has dismissed Myanmar’s attempts to block a case accusing it of genocide against the Rohingya minority. The case focuses on the military crackdowns in 2016-17 that caused over 700,000 Rohingya to flee to Bangladesh. Myanmar’s attempt to strike out the claim hinged on jurisdiction, stating that the Gambia (who brought the case before the ICJ) were not directly affected by the events. This argument was rejected because the Gambia was held to present proceedings as a state party to the Genocide Convention.

• English and Welsh courts are to be given new powers to dismiss claims which stifle free speech, the Government has announced. The proposals target intimidatory cases against reporters and publishers, known as SLAPPs (‘strategic lawsuits against public participation’). The Russian invasion of Ukraine has brought SLAPPs into public criticism, as many oligarchs benefit from such cases. The new rules allow anyone subjected to a SLAPP claim to apply for its early dismissal. In this application, the court will first consider whether the case is against journalistic activity in the public interest, before examining if there has been any abuse of process, and finally whether there is a realistic prospect of success.

In the courts

• In HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, the Supreme Court dismissed three appeals against the deportation of foreign criminals under section 117C of the Nationality, Immigration and Asylum Act 2002. The case is interesting for its discussion of two relevant tests for such cases: the ‘unduly harsh test’; and the ‘very compelling circumstances test’. Of the unduly harsh test, the Court rejected the submission that degrees of harshness can be compared between a qualifying child and any other child. Such a comparator would give rise to too many variables and so would be inconsistent with the statutory duty to have regard to the ‘best interests’ of the affected child [at 30-40]. Regarding the very compelling circumstances test, the Court held that where no information of the underlying offence is known beyond the sentence imposed, that sentence must be the surest guide to the seriousness of the offence. It would only be appropriate to depart from the sentence in considering seriousness if there are remarks in the judgment that clearly explain relevant factors to the contrary.

• In Friends of the Earth v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin), the High Court ordered the government to outline how its net zero policies will achieve emissions targets. While most grounds of judicial review were dismissed, the Court did state that the net zero strategy lacked any explanations or quantification of how plans would achieve this target, and as such failed to meet its obligations under the Climate Change Act 2008. This means the Department for BEIS must prepare a report explaining its strategies, to be presented to parliament by April 2023.

• In Kaczor v Kalisz Regional Court, Poland [2022] EWHC 1914 (Admin), the High Court dismissed an appeal against an extradition order concerning a European Arrest Warrant. The appellant submitted that the extradition to serve a sentence would be an unjustified interference with article 8 rights. This was because of the impact the extradition would have on the appellant’s relationship and two children. In dismissing the appeal, the Court relied on Lord Neuberger’s list of categories open to appellate judges departing from a trial judge in Re B [2013] UKSC 33 at [93-94]. On this reasoning, the Court stressed that their role was not to second-guess the District Judge’s assessment, but to determine whether his assessment was wrong. The District Judge took into consideration the impact of extradition on the appellant’s family and relationship, but ultimately found that this did not affect the outcome of the balancing exercise. The Judge considered all the relevant factors, and so was entitled to find against the appellant.