Public Interest Litigation Update:

19th January 2012

 

Welcome to the PILS Project's Public Interest Litigation Update. The Update provides you with information on current public interest cases, judgments, news and events.
 
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Loretto judgment partly overturned
The Court of Appeal has partly overturned the judgment in the challenge brought last year by Loretto Grammar School to the Education Minister’s decision not to fund a £14.6 million new school on its existing site.
 
New premises had been promised by the Minister in 2004 but this decision was reversed in favour of plans for a multi-school complex on another site.  Last year it was ruled in the High Court that the governors of Loretto had a legitimate expectation that the school would be built and the Minister had failed to take this into account when she made her final decision. 
 
The Court of Appeal however has over-ruled the High Court decision finding that the representations and actions by the Minister and Department of Education did not give rise to a substantive legitimate expectation. The judge said that a legitimate expectation can only arise where there has been a “clear and unambiguous representation devoid of relevant qualifications” as to the decision maker’s future conduct.  It may arise from an express promise given by or on behalf of a public authority or it may arise from the existence of a clear and regular practice which a claimant can reasonably expect to continue.  He continued to say that no legitimate expectation could arise until the final approval of an application for funding – a stage which had not yet been reached in this case.
 
The Court did, however, quash the decision of the Department to categorise the capital project submitted by the School as non-compliant. The
Department failed to take into account that it had not clearly indicated to the School what it expected of it in this context and accordingly the decision to designate the School as non-compliant was quashed and the Department must reconsider the matter.
 
For a recent overview of authorities on legitimate expectation see this recent post on the Education Law Blog here and the judgment in R (on the application of W) v Secretary of State for Education [2011] EWHC 3256 (Admin) here.


Children's rights
  • Youth restraint challenge unsuccessful
The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd  and Serco plc [2012] EWHC 8 (Admin)
 
A case taken by the Child Rights Alliance (CRAE) for England to identify youths who had been subjected to certain restraining measures (which have since been barred) in secure training centres has been unsuccessful. The organisation also unsuccessfully sought a requirement that every such youth be advised of their legal rights. 
 
According to Rosalind English on the UKHRB, CRAE was arguing that the authorities are under “a positive obligation to inform those who might have been subjected to unlawful restraint procedures to enable them to consider whether they wish to seek some form of redress in relation to what, if it occurred, would have constituted an assault or trespass to the person or a breach of their Article 3 and Article 8 rights under the Human Rights Convention.  The court, however, found no basis in common law or Convention precedent, or under judicial review grounds that supported the argument.
 
The UKHRB article highlights that the case is also interesting in terms of the standing granted to CRAE to take the case in their own name.  Read more here.
  • Are the rights of children better safeguarded in Wales than in England?
A recent post on the Law and Lawyers blog discusses the different levels of rights afforded to children living in England compared to those in Wales. In 1989, the UK signed the United Nations Covenant on the Rights of the Child (UNCRC). However, the Convention has not been incorporated by statute into English law but it can be referred to in court to help interpret the law.
 
The Welsh Assembly has enacted the Rights of Children and Young Persons (Wales) Measure 2011, in order to impose a duty upon the Welsh Ministers and the First Minister to have due regard to the rights and obligations in the UNCRC.  Some of the duties imposed by the Measure are due to begin in May 2012.
 
The article argues that as a result the rights of children may be better safeguarded in Wales than in England.
 
It is also worth considering the significance of this development in the context of calls for a Northern Ireland Bill of Rights, which some have opposed on the grounds that it will lead to different levels of rights in different parts of the UK.

LGBT
  • Legal challenge to ban adoption by gay and unmarried couples in NI adjourned
The Northern Ireland Human Rights Commission (NIHRC) has challenged the current legislative framework which does not extend adoption rights to same sex and unmarried couples. The NIHRC seeks a change in the law, claiming the current status in the Civil Partnership Act 2004 is discriminatory and in breach of human rights; in particular Article 14 (prohibition of discrimination) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
In December Mr Justice Treacy granted an adjournment in the case after it was revealed that a ban included within Stormont legislation was intentional and not a mistake. Mr Justice Treacy granted the adjournment to allow the commissions’ lawyers time to study the legislation and they are now to seek documents relevant to the government position.

The case is due to recommence in March 2012.
 
To read the full story click here.


Migrant workers
  • JCWI cases on non-EEA care workers successful
The Joint Council for the Welfare of Immigrants (JCWI) has successfully represented two non-EEA care workers in their First Tier Tribunal appeal.  The cases challenged a change to the points based system that was introduced last year requiring those who come to the UK to work to earn a certain rate of pay before they can apply to settle after five years continuous work.  The JCWI believe this issue affects a large number of non-EEA nationals working in the UK who are do not receive a high enough wage to meet the criteria. 
 
The JCWI is currently looking for other migrant workers who have found themselves in this situation and is also offering training (in London) to legal advisers and others working with the points based system.  Click here for further information.


Social security
  • Overpayment of benefits cannot be recouped through deductions in benefits

Secretary of State for Work and Pensions v Payne & Anor[2011] UKSC 60

The Supreme Court has ruled that the Secretary of State can continue to recoup Social Fund loans and overpayment of benefits by deduction from current benefit payments during the “moratorium” period after the making of a Debt Relief Order under Part 7A of the Insolvency Act 1986.
 
According to the summary of the case on the UK Supreme Court Blog, the respondents had a statutory entitlement to the amount of benefit they were awarded. The liability to repay arose independently of entitlement to any benefit, from which the Secretary may later decide to recoup.


ECHR Art. 3: Freedom from torture, inhuman or degrading treatment
  • Prison “slopping out” not in breach of ECHR
Grant and Cleaves v Ministry of Justice [2011] EWHC 3379 (QB)
 
The High Court in London has ruled that prisoner sanitation conditions which included using a bucket for a toilet and “slopping out” (emptying the contents of the bucket) are not in breach of Articles 3 (freedom from inhuman and degrading treatment) or 8 (right to respect for privacy and family life). 
 
The case was taken by two prisoners as lead cases on behalf of the 360 other long term prisoners at HMP Albany in England.  The ‘bucket’ was intended by the prison to be used only in exceptional circumstances, i.e. when there was a delay in unlocking the cell door at night to allow the prisoner to use the bathroom.
 
The court recognised that the sanitation arrangements were not ideal but found the bucket was only rarely used by the claimants. The court dismissed the claim that the conditions were degrading for the purposes of Article 3.  The court also found that the system did not substantively lower the dignity or privacy of the prisoners. 
 
Read a full analysis on the UKHRB here.

  • European Court rules that imprisonment for life is not a breach of Art 3
Vinter and Others v UK (App no.s 66069/09, 130/10, 3896/10)
 
The European Court of Human Rights has ruled that imprisonment for life with no hope of release is not inhuman or degrading treatment for the purposes of ECHR Art. 3.  Also the court did not consider the sentences that the men received to be grossly disproportionate to their crimes.
  • Extradition to US for possible life imprisonment not a breach of Art. 3
Harkins and Edwards v UK (App. no.s 9146/07 and 32650/07)
 
The European Court has ruled that it would not be in breach of ECHR Article 3 to allow the extradition from the UK of a British man and an American man accused of two different murders in the US. 
 
The men argued that if they were extradited they would be at risk of facing the death penalty or a life sentence without the possibility of parole.  The US however has provided diplomatic assurances that the death penalty would not be sought against either of the men.  The European Court accepted these assurances.  The Court was also not persuaded that a life sentence without parole would be grossly disproportionate to their crimes.


ECHR Art. 6: Right to a fair trial
  • Police officer on jury breaches Article 6
Hanif & Khan v UKECHR 296 [2011]
 
Two men convicted of drug offences claimed that a police officer’s presence on the jury violated their right to a fair and impartial tribunal under Article 6 of the European Convention on Human Rights.
 
The police officer in question had made his position known to the judge during the hearing but the judge had permitted him to remain on the jury and rejected the defence’s application to discharge the officer.
 
In 2008 the Court of Appeal upheld the conviction, referring to the Criminal Justice Act 2003 which permits persons including police officers to sit on juries. However, the European Court of Human Rights has now held that a breach of Article 6 had occurred because although it is lawful for police to serve on juries in the UK, the police officer in this case was acquainted with police officers who had provided contested evidence in the case. The jury could therefore not be considered impartial.
 
To read more click here.

  • Use of hearsay not automatically a breach of Art. 6
Al-Khawaja and Tahery v UKECHR, Applications nos. 26766/05 and 22228/06
 
The European Court of Human Rights has ruled that convictions based solely or decisively on statements from witnesses who could not be cross examined in court (hearsay evidence) do not automatically constitute a breach of the Article 6 right to a fair trial.
 
The Court was considering appeals from two men convicted in unrelated criminal cases whose lawyers had not been able to cross-examine witnesses who had given written evidence against them.  Article 6 3(d) of the European Convention states that everyone has the right to examine witnesses who have given evidence against them during a trial.
 
The European Court found that the hearsay rule should not be inflexible and should be weighed against other competing interests of victims, witnesses and the public.  In the case of Mr Al-Khawaja the Court ruled that the judge’s directions to the jury and the evidence offered by the prosecution enabled the jury to make a fair and proper assessment of the hearsay evidence.  However in the case of Mr Tahery the Court ruled that the conviction had been based solely on the evidence of an absent witness with insufficient counter-balancing factors.
 
Read a fuller analysis of the case on the UKHRB here and here.


ECHR Art. 8: Right to respect for private and family life
  • Sharing of intimate pictures from stolen mobile breaches Art. 8
AMP v Persons Unknown [2011] EWHC 3454 (TCC) 
 
In the Technology and Construction Court (part of the High Court in England) a judge has ruled that it was in breach of a woman’s right to privacy for an unknown person who stole her phone to upload intimate pictures of her stored on the phone to an internet site.  An injunction was also granted against ‘persons unknown’ (those downloading the pictures from the internet and ‘seeding’ them using “Bit.torrent”) enabling a forensic computer company to track down anyone hosting the files. 
 
Read more on the UKHRB overview of the case here.

ECHR Art. 9: Freedom of thought, conscience and religion
  • Article 9 and the conscientious objector
R v Michael Peter Lyons[2011] EWCA Crim 2808
 
The Court Martial Appeal Court has ruled that a medical assistant in the Royal Navy cannot use moral objections to the UK’s involvement in the war in Afghanistan as a defence to an insubordination charge.
 
Five years in to his service, the appellant was told that he would be deployed to Afghanistan. He refused to undertake pre-deployment weapons training and applied for discharge on the grounds of his objections to the UK’s role in the war in Afghanistan. However, the court held that although a volunteer may refuse to perform military service on the grounds of their thought, conscience or belief under Article 9 of the ECHR (conscientious objector), it was unlawful for the appellant to disobey a lawful command to undertake weapons training while waiting for the outcome of his Article 9 claim.
 
To read an analysis of the case on the UKHRB click here.
  •  Is internet access a human right?
In a new report the United Nations Human Rights Council explores the issue of whether internet access is a human right and concludes that restricting access completely to the internet will always be a breach of Article 19 of the International Covenant on Civil and Political Rights (ICCPR); freedom of expression.  It does however recognise that in certain circumstances some restrictions may be necessary and proportionate.
 
The UK Court of Appeal has already held that the internet is an “essential part of everyday living” but did so on the basis of proportionality rather than on a specific ECHR argument. 
 
Adam Wagner in the UK Human Rights Blog argues that internet use may also sometimes fall within Article 8 of the ECHR (the right to family and private life) as email, Skype, Facebook and Twitter are now essential tools of interaction between friends and family. To read more click here.


Employment law
  • Supreme Court rules on damages for unfair dismissal
Edwards v Chesterfield Royal Hospital and Botham (FC) v Ministry of Defence [2011] UKSC 58
 
The Supreme Court recently ruled on an employment law case which explored the impact of an employee's ability to claim damages where they are unfairly dissmissed or where an internal disciplinary is not correctly followed by their employer.
 
Two men, one of which was Mr Botham, a youth worker, brought a claim for unfair dismissal in the employment tribunal. Mr Botham’s claim succeeded, as Lord Kerr held: “It is accepted that the reputational damage which he is alleged to have suffered was inextricably linked to the fact of his dismissal.” Mr Botham was awarded damages of £65,000 as he had a contractual right to a particular disciplinary procedure and the procedure that was in fact engaged was not properly followed.
 
To read the UKHRB analysis of the case click here.


EU law
  • UK government goes to European Court of Justice over rules allowing non-EU members to claim benefits
The UK government is planning to go to the European Court of Justice over rules from the European Union allowing non-European Union members to claim benefits even if they are not working or paying taxes.
 
The UK government states that it is entitled to prevent "non-active" non-European Union migrants from claiming benefits because of the UK's ability to opt-out under existing EU treaties. However, it has been asserted that EU-wide "habitual residence" requirements are sufficient and any further restriction would indirectly discriminate against non-UK nationals.
 
According to an overview of the potential case by the Public Interest Law Alliance, the UK had been previously warned this year by the European Commission over its benefit eligibility tests and how they affect EU nationals - namely that it is easier for UK citizens to prove their "right to reside" in the UK than it is for other EU nationals. 
 
To read more click here.

  • No transfer to member states where asylum seekers risk inhuman treatment
The Court of Justice of the European Union has issued a press release stating that: “An asylum seeker may not be transferred to a Member State where he risks being subjected to inhuman treatment”.
 
The press release comes after a number of cases involving asylum in Europe; including that of an Afghan national who came to the UK after travelling through Greece when he was arrested and later expelled to Turkey, where he was detained in appalling conditions before escaping to the UK. In the UK, he lodged an asylum application and was informed that he would be transferred to Greece. In challenging the decision he alleged that there was a risk that his fundamental rights would be infringed were he to be sent back to Greece.
 
For further information read the press release here and an analysis here.

Other public interest cases
  • Leave granted in Finucane judicial review
It has been reportedthat leave has been granted in the challenge taken by the family of Pat Finucane to judicially review the decision of the Prime Minister not to hold an inquest into his murder.  The full judicial review hearing is due to take place in May 2012.
  • Leave granted in revoked license challenge
A prisoner out on license has been granted leave to challenge his recall to prison over unspecified allegations of involvement with dissident republicans.  It is argued that recalling him using ‘closed material’ without detail is unlawful.  Read the full news story here.
  • Court refuses PSNI request for BBC Parade footage
The PSNI’s request for un-broadcasted BBC footage of a Republican Parade in April 2011 has been refused by a Northern Ireland court.  Under paragraph 5 of Schedule 5 to the Terrorism Act 2000 the PSNI may apply to a Court for an order (such as for the BBC footage) for the purposes of a terrorist investigation where there are reasonable grounds for believing that the material is likely to be of substantial value to a terrorist investigation.  The judge ruled that he had not been given evidence of the specific purpose of the material and how it would be of substantial benefit and was not satisfied that the conditions for the order had been met.
 
Read the court press release here.

  • Housing rights and property fraud in Russia
Gladysheva v RussiaECHR App No. 7097/10 [2011]
 
Svetlana Gladysheva bought an apartment in Moscow in good faith.  However a number of years later the authorities revealed that the original owner had bought the apartment fraudulently. The authorities then revoked Ms Gladysheva’s ownership title to the property and issued an eviction order without offering any alternative accommodation or compensation.  Ms Gladysheva claimed this breached her human rights under Article 1, Protocol 1 (protection of possessions) and Article 8 (respect for the home) of the ECHR.
 
The European Court of Human Rights held that the revoking of her title was disproportionate and the Russian authorities should have borne the consequences of their mistake. The court found Ms Gladysheva’s human rights were breached and held that the authorities should restore the title of ownership to Ms Gladysheva and reverse the eviction order against her.
 
To read a full overview of the case on the ECHR Blog click here.

  • Placement of those without capacity in a care home in the Czech Republic must be authorised by a court
The Small Places blog reports that the Czech Ombudsman has issued an opinion that the placement of a person who is deprived of their legal capacity in a care home must be authorised by a court.  The ruling awaits review by the Czech Constitutional Court, but will potentially affect over 30,000 people subject to guardianship laws in the Czech Republic.  Read more here.

Pro bono work
  • The Public Interest Law Alliance (PILA) pro bono referral leads to fairer access to social housing for immigrants
A referral from the pro bono register operated by PILA in Dublin has resulted in a change in the guidelines for assessing eligibility for social housing for immigrants. 
 
Using their register, PILA connected housing law barrister Neil Maddox with NASC, an Irish immigrant support centre.  NASC was concerned that the guidelines excluded large numbers of immigrants from applying for social housing.  Mr Maddox prepared an opinion which found the guidelines to be ultra vires, or beyond the power of the Department of the Environment.  This was communicated to the Department who have since amended their guidelines.  Read more here.
  •  Lawyers wanted……
The PILS Project is compiling a register of practitioners who are interested in undertaking pro bono work with the PILS Project.  Opportunities range from writing an initial opinion, involvement in a test case, writing an article for the PILS Project Newsletter, analysing a recent case or delivering training and talks to NGOs and legal practitioners. If you would like to find out more about opportunities to do pro bono work please email marieanne@pilsni.org.
  •  Legal Support Project
Early in 2012, Law Centre (NI) will be launching the Legal Support Project, a free representation unit that will concentrate on representation at social security appeals and industrial tribunals in particular. The initiative has come about because of an increased demand for representation which is currently not being met. The work will be undertaken by volunteers, trained and supported by the staff of the project.
 
The Legal Support Project is now looking for volunteers from a variety of legal backgrounds including law graduates, newly qualified lawyers who want to gain valuable representation experience and experienced legal practitioners. For further information contact Sinéad Mulhern, Head of the Legal Support Project, directly at tel: 90244401 or sinead.mulhern@lawcentreni.org.


Legislative and policy updates
  • Scottish independence referendum – the NI perspective
Christopher McCrudden, Equality and Human Rights Professor at Queens University Belfast, has written an article on the Constitutional Law Blog discussing the Northern Ireland and international human rights law perspective of the Scottish independence referendum.
  •  Change recommended in law on assisted suicide
The latest development in the long running debate on assisted suicide is the publication of a reportby the Commission on Assisted Dying, which was set up in September 2010. The report recommends a change in the current law, considering it “inadequate and incoherent”. The argument is based upon the belief that in assisted suicide, the sufferer takes the lethal drug himself; and it is not physically administered by a third party, as it is in euthanasia.
 
However, the European Court of Human Rights held in Pretty v UK (2002) a blanket ban on assisted suicide may be “necessary in a democratic society” for the protection of the rights of others. Addressing a number of concerns, the report concludes that “it is possible to devise a legal framework that would set out strictly defined circumstances in which terminally ill people could be assisted to die” while protecting vulnerable people, however, the decision to permit assisted suicide should rest on health and social care professionals rather than on a tribunal or legal body. 
 
To read more on the report click here.


Useful resources
  • New online guide on the rights of migrant workers
The Law Centre and the NIHRC have jointly published an online guide on the rights of migrant workers.  Click here for a copy of the guide.
  •  New guidance on Freedom of Information requests for private emails
The Information Commissioner has issued guidance clarifying that information concerning official business held in private email accounts is subject to the Freedom of Information Act.  For further information click here.
  •  New European Commission handbook on presenting a discrimination claim
The European Commission has published a handbook entitled: ‘How to Present a Discrimination Claim: Handbook on seeking remedies under the EU Non-discrimination Directives’.  Click here to read the handbook.
  •  EHRC Human Rights Measurement Framework published
The Equality and Human Rights Commission has published a Human Rights Measurement Framework which provides a set of indicators that brings together information and evidence for analysing and assessing human rights in Britain.   Click here for further information.
  •  Thomas Hammarberg on a human rights based approach to disability
Council of Europe Human Rights Commissioner, Thomas Hammarberg, has written a post on the RightsNI blog about a human rights based approach to disability.  To read the post click here.

Jobs and Events
  • SENAC Legal Conference: 15.03.2012
The Special Educational Needs Advice Centre (SENAC) is holding a conference on 15th March 2012 to look at legal aspects of the Special Educational Needs (SEN) system in Northern Ireland.  Speakers at the event will include Mr. Justice Treacy, Senior Judicial Review Judge, High Court NI, Rachel Hogan B.L. Children’s Law Centre and Aidan Sands B.L.  Email info@senac.co.uk to book a place.
  •  Law Commission seeking Research Assistants
The Law Commission in London is currently recruiting for a number of research assistants to work on law reform and statute law repeals.  Closing date is the 31st January 2012.  Click herefor further information.
  •  Interights seeks interns
London based international human rights organisation, Interights, has a number of internship positions available currently.  These include legal library volunteer, self-funded summer internships and a paid internship for a security and rule of law lawyer. Click here for further information.
  • The Role of NGOs in Public Interest Litigation, Dublin (09.02.12)
PILA is holding this seminar in Dublin on the 9th February 2012.  The seminar will feature Caoilfhionn Gallagher BL of Dought Street Chambers, London, Liam Herrick of the Irish Penal Reform Trust, TJ McIntyre, Lecturer in Law at University College Dublin, as speakers and will be chaired by Dr Colin Harvey of Queen's University Belfast.  Click here for further information.


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