Public Interest Litigation Update:
7th November 2011
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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Two new PILS victories
Two public interest cases assisted by the PILS Project have recently been successful in the courts.
In the matter of an application by Coláiste Feirste for judicial review 
Department of Education must reconsider its policy on transport to Irish language school
This case was brought by a member of the Board of Governors of Northern Ireland’s only Irish language secondary school, Coláiste Feirste, to challenge the decision of the Education Minister not to provide transport to some pupils who wish to attend the school.
The Minister argued that providing such transport would require unreasonable public expenditure and if granted would encourage a wave of requests from other schools to provide transport for children.
Mr Justice Treacy held that the Department of Education had a statutory duty to encourage and facilitate Irish medium education (stemming from a clear commitment enshrined in the Good Friday Agreement) and found that it had failed to give proper weight to its obligations under Article 89 of the Education (NI) Order 1998. He also found that the provision of transport facilities to schools in any sector to be critical to the development of that sector and the provision of genuine parental choice saying “it is not possible to divorce the development of schools from the means by which students are going to get to them”.
He said “the imposition of the statutory duty has and is intended to have practical consequences and legislative significance” and he required the Department to reconsider its transport policy in light of his ruling.
Public interest element: The judge went as far as he could go in pointing out the failings of the Department. It is important that implementation now occurs so that Government change their policy. If they do the decision will impact on those children in Irish medium primary schools, of which there are several, but more importantly it will encourage Coláiste Feirste to expand if transport improves and will help the Irish medium education sector develop in the longer term building on the promises in the Good Friday Agreement about respect for all. It will also help restore confidence in the legal institutions among a group of people (who use Irish as their first language) who feel forgotten about.
The PILS Project provided support in this case following a request from Irish language organisation Pobal who were closely involved in the case.
In the matter of applications by Siegneralla Elaine Flanneur and Siegnette Elaine Flanneur for Judicial Review  NICA
Deportation of Dutch sisters breaches EU law
Two sisters of Dutch nationality challenged the decision to deport them after their release from prison on drug related offences.
The sisters had pleaded guilty to importing/attempting to import cocaine into Northern Ireland in 2008. They had no previous convictions, had been motivated to carry out the offence by the level of poverty they had found themselves in and were found to be at a low risk of reoffending. Despite this they were served with deportation orders.
According to EU law every citizen of the European Union has the right to move and reside freely within the EU. This right can only be restricted on public policy, public security or public health grounds and in limited circumstances.
The Court of Appeal ruled that the decision to deport the sisters breached the right to free movement because they could not be satisfied that the deportation decisions had been based exclusively on the personal conduct of the appellants and not the seriousness of the offence as required by EU law.
The PILS Project supported this case following a request from the Law Centre (NI), who has been active in supporting EU nationals facing deportation from the UK.
Public interest element: If this appeal had not been taken and won the ruling of the lower court would have been the only judgment on this issue and could have adversely affected a significant number of people in the future. This case has been valuable in removing a negative precedent. It also has huge ramifications for EU nationals facing expulsion from the UK after serving prison sentences, the out-workings of which can impact on different aspects of their lives including family life, education and future career prospects.
The judgment is not yet publically available but a copy can be obtained by contacting the PILS Project at firstname.lastname@example.org.
Save the date! The PILS Project and PILA host joint conference
The PILS Project and the Public Interest Law Alliance will host their inaugural joint conference on the 11th November 2011 entitled Political Commitment, Practical Protection: Using the ECHR North and Southin Croke Park Conference Centre in Dublin.
The conference is focused on the political commitment to and practical implementation of the European Convention on Human Rights (ECHR) in Northern Ireland and the Republic of Ireland since the 1998 Agreement. Donncha O'Connell, Law Lecturer at the National University of Ireland Galway, is the conference's chairpersonand Shami Chakrabarti, Director of Liberty, will be the keynote speaker. Three prominent practitioners from the North and South (Gerry Hyland, Colin Daly and Michael Farrell) will then speak about how the ECHR is being used practically in both jurisdictions.
The afternoon sessions will consider the use of the ECHR in relation to children, housing, mental health, prisoners and Travellers. Breakout sessions on each of these areas will be held with a chairperson and speakers representing both jurisdictions. Michael Finucane will then reflect on whether there is equivalence of protection under the ECHR North and South.
The conference is FREE (including lunch) for all legal practitioners, non-governmental organisation staff, legal academics, law students and anyone else interested in the development of public interest law in the North and South. CPD Points are available.
Click hereto see the conference agenda and here to register for the event or call us on 02890 446201.
Margaret Bailey & Others v London Borough of Brent Council EWHC 2572
Challenge to library closures unsuccessful but will be appealed
A judicial review of two local authorities’ decisions to close libraries in their areas has been unsuccessful in the High Court in England. It was argued that Somerset and Gloucestershire County Councils failed to take into account the needs of the most vulnerable in their areas when they announced plans to withdraw funding from local libraries. The High Court judge disagreed however and ruled that the consultation process had been extensive and had provided sufficient information to enable a proper response. They also fund, the Equality Impact Assessment carried out by the local authority was informed, thorough, conscientious and timely.
Permission has now been granted for appeal and the Children and Families Minister Sarah Teather has asked the Secretary of State to intervene in the case. Read a fuller analysis of the case here.
Child Poverty Action Group v Secretary of State for Work and Pensions EWHC 2616
Challenge to Housing Benefit cuts fails
A challenge taken by the Child Poverty Action Group (CPAG) to cuts in Housing Benefit has failed. CPAG argued that the changes in the maximum size of household and the maximum amount that can be received were contradictory to the reason Housing Benefit was introduced: to prevent homelessness. CPAG further argued that the cuts are a breach of the Equality Duty.
The challenge failed on both counts. The judge ruled that the purpose of the housing benefit scheme is not to prevent homelessness, but to help claimants with their rent whilst also protecting the public purse. He also held that there is nothing in the statutory scheme to prevent the government from setting an overall cap in this way. By preparing an Equality Impact Assessment he held that the government had “due regard” to the need to eliminate unlawful racial discrimination but that they were entitled to make the changes despite their disproportionate impact.
Read more about the impact that the new changes will have on the CPAG website hereand to read about the impact in NI visit the Law Centre’s website here.
The Northern Ireland Health Minister, Edwin Poots, has decided not to lift a ban on gay men donating blood in Northern Ireland, despite the ban being lifted in November in England, Scotland and Wales for gay men who have not been sexually active for 12 months or more.
NI Health Minister may face legal challenge on refusal to allow gay men to donate blood
The Rainbow Project has argued that the Minister’s decision is not only homophobic but also unworkable since it could effectively mean blood donations from the rest of the UK could potentially not be accepted. The Rainbow Project has publically called on the Minister to change his decision and are prepared to mount a legal challenge if he does not. Read a post by Dónal Kearney on the Law Think blog on the issue here.
JR 56’s Application  NIQB 78
Challenge to school admissions criteria succeeds (and fails)
A challenge to a secondary school’s admission criteria taken by an 11 year old boy who was refused a place in the school has succeeded, but only in part. The boy was successful in arguing that the School had not followed the guidance issued by the Department of Education but not in arguing that the guidance itself was indirectly discriminatory on the grounds of socio-economic status.
An English student is considering suing the NI Executive over its plans to charge him higher tuition fees compared with those students from NI, whose fees will remain at £3,500, compared to students from elsewhere in the UK who will soon be charged up to £9,000 if they wish to take up a place at a university in NI. The teenager is claiming that the increased fees would breach his human rights. Read the BBC article on the potential case here.
English student may sue NI Executive over tuition fees
Freedom of Expression
Karttunen v Finland
Child Pornography in Art Exhibition and Freedom of Expression
In this case the European Court considered whether the conviction of an artist for including child pornography in an art exhibition violated her right to freedom of expression under Article 10 of the European Convention. The court held that the crucial question to consider was whether the interference had been “necessary in a democratic society”, stating that artists exercising freedom of expression are subject to duties and responsibilities. In this instance the court concluded that the interference was proportionate to the legitimate aim pursued. To read more click here.
Immigration and asylum
R (on the application of S) v Secretary of State for the Home Department  EWHC 2120
Detention of mentally ill foreign national unlawful and in breach of Arts. 3 & 5
The High Court has ruled that the Secretary of State unlawfully detained a mentally ill foreign national who was awaiting deportation after failing to follow the Home Office policy that persons suffering from mental illness should only be detained in ‘exceptional circumstances’. This in effect breached the man’s Art. 5 right to liberty and security of the person under the European Convention on Human Rights.
It was also ruled that the conditions of detention, in light of the man’s mental illness and the extremely negative effects of the detention on his mental health, breached Article 3 of the European Convention on Human Rights (prohibition on inhuman and degrading treatment).
To read an analysis of the case on the 1 Crown Row website click here.
R v Secretary of State for the Home Department  UKSC 45
Government policy to prevent sham marriages unlawful
The Government’s policy of not providing visas to non-resident spouses under the age of 21 in order to prevent sham marriages has been ruled to be in breach of Art. 8 (right to respect for private and family life) of the European Convention of Human Rights by the Supreme Court.
The Court found the policy created a disproportionate interference with Art. 8 because it would keep a very substantial number of young couples apart or forced to live outside the UK, vastly exceeding the number of forced marriages that would be deterred. The measure was similar to the blanket prohibition on persons subject to immigration control marrying without the Secretary of State’s written permission found to be unlawful in R (Baiai) v Secretary of State for the Home Department  UKHL 53.
Read the UKHRB analysis of the case hereand commentary by the Joint Council for the Welfare of Immigrants hereand here.
Protective Cost Orders
The English courts have recently granted two Protective Costs Orders (PCO). The first was granted to protect an environmental campaign group from the risk of costs in their challenge to the extension of a quarry. Read more about the case here. The second PCO was granted to a patient group who are challenging the decision to cut funding for a number of rural GP surgeries. Read more about that case here.
Two new Protective Costs Orders granted
Other public interest cases
A challenge which could change the way courts use evidence obtained from police informants and how much of that evidence is made public is due to be heard by the NI courts this week. The challenge relates to a miscarriage of justice case which is over 20 years old which the NI Police Ombudsman Al Hutchinson has refused to investigate. Read more here.
NI challenge on the use of informers’ evidence
W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor) and others EWHC 2443 (Fam)
High Court refuse family’s “right to die”
The High Court has ruled that it was not in the best interests of a person in a minimally conscious state to withdraw their life-supporting treatment, including artificial nutrition and hydration. In making decisions such as this the court ruled that the person’s best interests, including their past and present feelings and wishes, and of those close to them, should be taken into account alongside relevant medical factors, however it is not relevant to ask what the person would decide if they had capacity.
The court stressed that all cases in which artificial nutrition and hydration is withdrawn must be heard swiftly and by a High Court judge. For a full analysis read the UK Human Rights Blog posts on the case here, hereand here.
Ambrose Harris (Procurator Fiscal), HM Advocate v G : HM Advocate v M  UKSC 43 (6 October 2011)
Reliance on evidence gained before access to a lawyer was not a breach of Art. 6
The Supreme Court has ruled that the Crown Prosecution Service’s reliance on evidence obtained before the individual had access to a lawyer did not constitute a breach of Art. 6 (right to a fair trial). This is in contrast to their 2010 judgment in Cadder v HM Advocate in which the court ruled that reliance on admissions made by an accused who did not have access to a lawyer did breach Art. 8. The difference between the two cases is that in Cadder the evidence was obtained in a police station, whereas in Harris the evidence was obtained before the individual was taken into custody.
According to an analysis of the case on the UK Human Rights Blog the ruling signifies that the right to a lawyer under Art. 6 only kicks in once an individual has been brought into custody. Interestingly Lord Kerr, previously Northern Ireland’s Lord Chief Justice, provided the only dissenting opinion in the case and argued that the UK courts should not be afraid to go where the European Court of Human Rights has not yet gone; to provide rights even where the European Court has not yet done so:
“If the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments.”
Mahajna v Secretary of State for the Home Department  EWHC 2481
Detention of Palestinian activist unlawful for first 35 hours but lawful on principle
The High Court has ruled that the first 35 hours of a Palestinian activist’s detention was unlawful due to the failure to communicate the reasons for the detention in a language which he could understand as required by Article 5 of the European Convention on Human Rights (right to a fair trial).
However, the man’s claim that the purpose of his detention was unlawful failed. The activist was detained while he challenged the decision of the Secretary of State to deport him, not because he had committed a crime but because hishistory of activism was perceived as anti-semitic preaching and considered a threat to security in the UK. The court found that the man’s detention in these circumstances was in principle lawful.
To read a fuller overview of the case read the UK Human Rights blog post here.
Equality and Human Rights Commission v Prime Minister & Ors EWHC 2401 (Admin)
Challenge to intelligence services guidance partially successful
A challenge taken by the Equality and Human Rights Commission to guidance for intelligence officers interviewing detainees overseas has been partially successful. The guidance states that officers cannot proceed with an interview if they “know or believe” that torture will take place. However, where the officer thinks that there is a “serious risk” of torture, cruel, inhuman or degrading treatment there is no such prohibition. The Court did not accept the Commission’s argument that this distinction left a caveat within the guidance that leaves officers unclear of their responsibilities.
However, the court did rule that the Annex to the already published guidance should be changed to omit hooding (placing a hood over the entire head of a prisoner). Read more on the UK Human Rights Blog here and in an article in the Guardian here.
Girard v France (Application no. 22590/04)
Court recognises the right to bury one’s relatives and to an effective investigation of a disappeared person
The European Court has for the first time interpreted Article 8 as providing a right to bury one’s relatives. The court considered the three aspects of dealing with an individual’s remains; returning the body to relatives, organizing and attending a funeral, and the treatment of samples taken from the body for investigation purposes; and ruled than in this case the combination of these factors amounted to an overall interference with the applicant’s private and family life under European Convention on Human Rights Art. 8.
The court also found that the authorities had failed in their obligation to conduct an effective investigation under European Convention on Human Rights Art. 2, which applies to people who have disappeared even before the body has been discovered. The duty in this case was triggered once the authorities obtained evidence that the disappearance was worrying or suspicious.
Read an analysis of the case on the Strasbourg Observers blog here.
Pro bono work
The PILS Project is compiling a register of practitioners who would be 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 email@example.com.
Legislative and policy updates
The report of the Access to Justice Review commissioned by David Ford has been published. It details 159 recommendations including:
Consultation document published on Access to Justice Review
- The introduction of condition fee arrangements (no-win no-fee);
- A review of family law and justice in Northern Ireland;
- The retention of legal aid for challenges alleging human rights abuses or serious wrongdoing by public authorities;
- The retention of the ‘exceptional grant’ of legal aid, explicitly including a presumption in favour of legal aid for Art. 2 cases;
- The head of the legal aid body should make decisions on exceptional grants rather than the Minister for Justice;
- The exceptional grant should also cover inquests into the deaths of persons detained under mental health legislation;
- Decisions on legal aid for inquests should be for the legal aid authority only without Ministerial involvement;
- Greater availability of contracts or grants for the provision of advice and in some cases help at tribunals in the priority welfare areas is open to competition from solicitors, the voluntary sector and the private sector;
- Appeals against legal aid decisions should be heard ‘in-house’ with an independent element but without oral hearings.
The closing date of the consultation is December 13th 2011 and the Minister for Justice has indicated that firm proposals will be brought forward in the new year. Read the full consultation document here.
Chancellor George Osborne has announced changes to employment law which are intended to reduce the number of employment tribunal claims and boost the economy. The qualifying period to be able to take an unfair dismissal claim (i.e. how long you have to have worked for the organisation) will be increased from one to two years and individuals will now be charged a fee for lodging tribunal claims. Osborne estimates that this will save UK businesses £6m a year by increasing confidence within businesses to take on new workers yet as employment lawyer Kevin Poulter points outthe real result will be in limiting access to justice and silencing the voices of employees.
Changes to employment law and problems with the existing system
The Detail has recently published a series of articles which highlight the key problems with the existing employment tribunal system in Northern Ireland. Read the articles which look at the difficulties in taking a case against your employer, the problems with settlements and gagging orders and what is involved in representing yourself here.
Other PIL news
The British Government has ruled out conducting an inquiry into the death of Northern Ireland solicitor Pat Finucane who was killed in 1989 by loyalist paramilitaries. The decision has come as a surprise to the Finucane family and supporters who have been campaigning for an independent public inquiry for 22 years. Read a series of articles in the Detail on the decision here, here and here, two articles on the Rights NI blog here and here, a statement from CAJ here and the NIHRC’s statement here.
British Government rules out Pat Finucane inquiry
The suggested amendments to the European Court of Justice Rules of Procedure are in the process of being discussed with the Council of the European Union. The Council of Bars and Law Societies of Europe has indicated serious reservations relating to access to justice. Read more here.
European Court of Justice changing Rules of Procedure
The British government and the European Commission have disagreed over the availability of certain benefits to EU claimants who do not satisfy the UK’s “right to reside” test. The European Commission has declared that the current framework breaches EU law, claiming it indirectly discriminates against non-UK nationals coming from other EU Member States. For further information click here.
Benefits ‘discrimination’ of non-UK nationals from EU Member States
Justice McCloskey delivered a speech on 30.09.2011 at the Northern Ireland Law Commission Inn of Court Seminar entitled The Human Rights Act 1998: The Judicial Role and the Impact of Article 2 ECHR on Inquests. Read notes from the speech here.
Justice McCloskey’s speech on Inquests in NI
A new guide on Alternatives to Court in NI, prepared by the Law Centre NI, the Northern Ireland Ombudsman and Queens University Belfast has recently been launched. To read the publication click here.
Guide to Alternatives to court in Northern Ireland launched
A website has been launched which aims to provide information on the law for ordinary people. The website includes commentaries on current legal issues of relevance to the everyday lives of people and an advice guide to specific areas and aspects of law, for example making a will, legal aid, the rights of families, of young people etc. Click here to visit the website.
The Justice Gap: Know Your Rights
A new pilot project has been established in England which will support the investigation of and challenges to miscarriages of justice; the Centre for Criminal Appeals (CCA). The CCA aims to fill the gap in access to justice that victims of miscarriages of justice find themselves in trying to prove their innocence. Amidst reductions in public funding for criminal cases and lessening numbers of solicitors firms taking on criminal appeals, and in particular miscarriage of justice cases, the CCA has been established as a specialised non-profit law firm. When up and running, it will provide factual investigation and legal representation and will be staffed by one or two caseworkers. The organisation also hopes to be in a position to identify strategic and systemic issues in the criminal appeals process that hinder access to justice.
Centre for Criminal Appeals to support investigation of miscarriages of justice
Click here to visit the CCA website.
Jobs and Events
Researcher for Collective Complaint on right to housing wanted
A legal researcher is required to prepare background materials and drafts for a Collective Complaint on housing to the Council of Europe Committee on Social Rights. The complaint is being prepared by a group of Irish NGOs including the Community Action Network, Ballymun Community Law Centre, Mercy Law Resource Centre and others. Click here for further information.