Lords judgments

There are two today, both from Northern Ireland.

In Re E is about the protests and distress of little girls trying to attend the Holy Cross Church in north Belfast in 2001 in the midst of violent and threatening protests – the claimants did not succeed in establishing that there were police failures to defend the children that amounted to a breach of their article 3 Convention right to be free from inhuman or degrading treatment, or that they were discriminated against contrary to article 14.

Zalewska v Dept. for Social Development is about the workers’ registration scheme imposed on Polish and other workers for a transitional period after EU accession in 2004. Ms. Zalewska argued that the UK’s scheme was disproportionate in its procedural requirements, as, although she initially registered and then worked for a period of 12 months in the UK – which would normally entitle her to benefits thereafter – she failed to re-register after a change of employer, and so lost all entitlement. Lady Hale and Lord Neuberger agreed with her, and held the scheme disproportionate; and Lord Hope ummed and aahed considerably before concluding that is was proportionate after all. Lords Carswell and Brown agreed with him – so Ms. Zalewska lost by three to two, and the government must be relieved.

Particularly interesting is the contrast between what might be called the “broad” approach to proportionality exemplified by Lord Brown at para. 63-65 of his speech, and the “narrow” approach to it of Lord Neuberger at paras. 67-69. Instinctively I agree with Lord Brown; I think the narrow approach risks being excessively interventionist although I can see it has strong arguments in its favour. There was a similar divergence of approach between Judge Masing and the others in the German Constitutional Court earlier this year.