Public Interest Litigation Update:

30th November 2016

 
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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Brexit Challenge
  • The High Court of England and Wales rules that Parliamentary consent is necessary to withdraw from EU

R (on the application of Gina Miller and Ors) v The Secretary of State for Exiting the European Union [2016] EWHC 2768
 
The High Court held that the Secretary of State did not have power under the Royal Prerogative to give notice under Article 50 and thereby commence the process under which the UK would leave the European Union.
 
On the 23rd June 2016, a referendum was held in the UK on whether to remain a member of the EU or to leave.  The majority of voters in the UK voted to leave.  Subsequent to this, the Prime Minister indicated her intention to use the Royal Prerogative to invoke Article 50 of the Treaty of the European Union (TEU), commencing withdrawal of the UK from the EU.  The applicants challenged this means of invoking Article 50 and argued that the Executive had no authority to use this provision which would arguably render defunct Parliament’s role in making and unmaking laws.
 
The Court emphasised that the sole question was whether as a matter of law, the government could use its prerogative powers to give notice of withdrawal from the EU under the process set out by Article 50.  It set out the principle that ‘the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign.’  Parliament can change the law as it chooses through enactment of primary legislation, and only Parliament can change the law, or set out provision by which the law may be changed.
 
The Court found that primary legislation is not subject to displacement by the Crown (Executive government) through the exercise of prerogative powers.  In relation to international relations, the Court found that, ‘By making and unmaking treaties the Crown creates legal effects on the plane of international law, but in doing so it does not and cannot change domestic law.  It cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights…’
 
The Court held that once notice is given under Article 50, some rights as incorporated into domestic law by the European Communities Act 1972 (ECA 1972) would inevitably be lost once the Article 50 withdrawal process is completed.
 
In interpreting statute, the Court held that it is necessary to have regard to constitutional principles which inform the inferences to be drawn as to the intention of Parliament.  The Court found that the Secretary of State’s submission glossed over this starting point for the interpretation of the ECA 1972 by contending that the onus was on the claimants to point to express language in the statute which removed the power of the Executive in relation to international relations.  The Crown does not have power to vary the law of the land by exercising its prerogative powers. 
 
The Court found that when interpreting the ECA, Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in the exercise of its prerogative powers.
 
The matter has been appealed and will be heard at the Supreme Court from 5th to 8th December 2016.
 
Read UK Human Rights Blog here.

 


Criminal Law
 

·        Unlawful to discriminate against offenders who are labelled foreign nationals because their parents did not marry
 

R (o.t.a. Johnson) v Secretary of State for the Home Department [2016] UKSC 56

 

The Supreme Court ruled that there was no justification for deporting someone who had committed a series of serious offences on the basis that he was a foreign national simply because his parents had never married. 

 

The applicant had been born to a British father and Jamaican mother who had never married.  No application had ever been made to register him as a British citizen.  The Secretary of State attempted to deport the applicant after he committed a series of offences.  Had the applicant’s parents married or applied for him to have British citizenship, it would not have been possible to deport him.  The applicant was no longer eligible to apply due to the requirement to be of good character and due to his convictions, he longer satisfied this critera.

 

He appealed on the basis that a statutory exception applied, which would prevent the Secretary of State from deporting him.  An exception to deportation would apply where removal of a foreign criminal in pursuance of the deportation order would breach a person’s Convention rights.

 

The First Tier Tribunal found that the applicant’s deportation was proportionate and lawful in so far as his rights to private and family life were concerned.  It remitted the question as to whether deportation was unlawfully discriminatory, given that the Claimant would not have been a foreign national had he not been born out of wedlock, to the Secretary of State.  The Secretary of State decided that the order was not unlawfully discriminatory.  The applicant appealed and relied on his right to private and family life and to protection from discrimination in the enjoyment of that right. 

 

The Supreme Court ruled that birth outside wedlock is a status for the purposes of Article 14 and very weighty reasons are required before discrimination on that basis can be lawful.  It also found that it was not possible to justify deporting those whose parents never married, where people in the same situation with married parents would not be liable for deportation.  The Court also found that to require an individual born out of wedlock to satisfy a good character test to be registered as a British citizen was unlawful discrimination.  The Supreme Court therefore made a declaration that this provision was incompatible with the European Convention on Human Rights.

 

Read UK Human Rights Blog here.
 


Medical Law
 

·        Judge rules that fourteen-year old may be cryonically preserved after death
 

JS (Disposal of Body) Re [2016] EWCH

 

The High Court ruled on the 10th November 2016 that a fourteen year-old cancer patient may be cryonically preserved after her death, in accordance with her wishes.

 

The facts were that JS, a fourteen year-old patient suffered from an untreatable cancer.  She had researched cryonics and expressed her wish in writing that she wanted to be cryo-preserved in the event that her cancer would in the future be curable and future generations could revive her.  Cryo-preservation involves the freezing of the human body after death in order to preserve it.  There is no evidence to date which suggests that a human body may be revived following this process.  JS had the intelligence and capacity to make the decision and the Human Tissue Act was not engaged.  The child’s grandparents had raised the funds required and her body would be transported to the USA following her death.

 

JS’s father was initially opposed to her wishes.  He wanted his daughter’s body to be able to be viewed after her death and this was something that she objected to.  Under the law, there is no right to prescribe the treatment of one’s body after death, irrespective of testamentary capacity or religion.

 

Jackson J issued injunctions limiting the manner in which the father could act not only while JS was alive, but also following her death.  He also made a prospective order which invested the mother with the sole right to apply for letters of administration after JS died.  He was careful to keep his decision within the remit of this individual case and selected the person he considered was best placed to make decisions after JS’s death.  The judge suggested that if cryonic preservation were to become more popular in the UK, the events in this case called for proper regulation by the Human Tissue Authority.

 

Read UK Human Rights Blog article here.
 

Defamation Law
 

·        BBC found not to have made defamatory comments against extremist speaker
 

Shakeel Begg v BBC [2016] EWHC 2688
 

The High Court held that comments made by a BBC presenter were not defamatory.  The allegations that the claimant was an extremist speaker who promoted jihad were found to be substantially true.
 

The facts were that on 3rd November 2013, the Sunday Politics programme included a discussion on whether mosques were doing enough to counter extremism.  While interviewing a representative of the Muslim Council of Britain, the BBC presenter, Andrew Neill stated that the East London Mosque was a venue for a number of extremist speakers and that Shakeel Begg spoke there and hailed jihad as ‘the greatest of deeds.’  He also referred to a number of other speakers at the mosque, who had made derogatory comments about Christians and Jews, who were jihadist supporters of the Taliban and asked why nothing was done about such extremists.  The claimant had not made this statement at the East London mosque, although had made other previous statements.
 

Shakeel Begg complained to the BBC about these remarks which were dismissed and he issued libel proceedings.  The BBC raised a justification defence to assert the substantial truth of Andrew Neill’s comments.  The claimant challenged the suggestion that he was an extremist and emphasised his standing in the community, interfaith work and work with the police.  The BBC’s justification defence depended on the correct interpretation of the claimant’s previous statements.  The test was whether a section of the audience would reasonably take the words spoken to convey a particular message. 
 

The judge considered what could be regarded as extremist positions and found that in several of the speeches relied on by the BBC, the claimant had promoted and/ or encouraged religious violence including armed jihad.  The substantial truth of this allegation was not affected by the BBC having inaccurately stated that the claimant had made such a statement at East London Mosque.
 

Read Inforrm article here.
 


Prison Law
 

·        Prison authorities must reconsider their refusal to grant inmate’s request for a laptop
 

Beggs, Re Judicial Review [2016] CSOH 153
 

In this Scottish case, a prisoner challenged the decision by prison authorities to refuse to provide him with his own personal laptop.  The judge ruled on the decision-making process and HMP Edinburgh would be required to consider the prisoner’s request afresh.
 

In 2001, the petitioner, Mr Beggs, was convicted of murder and sentenced to life imprisonment.  During his imprisonment, he made several requests to be allowed to purchase a laptop.  He intended to use it for educational purposes and to prepare responses to his lawyers regarding criminal and civil actions. 
 

The policies governing access to prison laptops were restrictive and resources were limited.  Access would only be provided if prisoners required the laptop for legal work and would not be provided unless the individual could show real prejudice to his case. 
 

The Scottish Prison Complaints Commissioner had recommended that Mr Beggs should be provided with a word processor and printer.  He commenced judicial review proceedings over the failure to comply with his request.  These proceedings were halted when the authorities agreed to provide him with computer facilities and a printer.  However, the laptop he had access to was communal and another prisoner was often using it.  Mr Beggs made numerous requests to have his own personal laptop all of which were refused.  In March 2014, Mr Beggs was moved to HMP Edinburgh, where again his request was refused, on the basis that his case was not exceptional.
 

However, Lord Malcolm found in favour of the petitioner.  The policies applied in the refusal were concerned with prison-owned communal laptops and not personal laptops.  Therefore, they could not be relied on in the refusal.  The case was exceptional given the early positive response of the Prison Complaints Commissioner, the undertaking agreed in the first judicial review proceedings and the initial finding of the governor that ‘compelling circumstances' existed.  HMP Edinburgh would therefore have to reconsider its decision.
 

Read UK Human Rights Blog here.


 


Privacy Law
 

·        High Court rules that the right of a claimant to name her abusers prevails over her abusers’ right to private and family life
 

Armes v Nottinghamshire County Council [2016] EWHC 2864
 

The claimant applied to set aside an anonymity order granted at the start of a previous trial to protect the identities of witnesses accused of physically and sexually abusing her in foster care.
 

The facts were that the claimant had taken civil action for damages against the local authority as a result of the abuse she had been subjected to while in foster care.  While she was unsuccessful in the High Court and Court of Appeal, she has appealed to the Supreme Court.  Although the local authority was found not to be responsible, the judge found that it had been proved, on a balance of probabilities, that the claimant had suffered abuse by two of the witnesses.
 

The claimant challenged the anonymity order and the court found in her favour.  The principles were set out as follows:
 

a.   The court may only make an anonymity order if it is ‘necessary’ to protect a witness’ interests such as the right to private and family life;

b.   Necessary to decide whether identification would interfere with those rights and consequences should be serious.

c.    If there is interference, the judge should consider whether this is necessary in a democratic society for the protection of the rights and freedoms of others – a balance must be struck.

d.   In striking the balance, there are three key points: 1. Justice should be open; 2. The more severe the consequences of interference, the more likely that anonymity should be ordered.  3. The greater the public interest in the issues being discussed openly, the more likely that anonymity should be refused.
 

In this case, the allegations had been proved against the witnesses and there was no concrete evidence that they would suffer consequences beyond damage to reputation.  The Court found that the claimant had a legitimate interest in being able to tell her story without restriction.
 

Read UK Human Rights blog here.

 
  • European Court of Human Rights held that there is a right to access to information to allow individual to exercise right to freedom of expression

Magyar Helsinki Bizottsag v Hungary (application no. 18030/11)

On the 8th November 2016, the European Court of Human Rights held that there is a right to public access to information where access to the information is instrumental to the individual’s exercise of their right to freedom of expression.
 

The applicant was an NGO based in Budapest.  It was conducting a study on the functioning of the public defenders’ system to contribute to discussion on this public interest issue.  It requested the names of public defenders selected in 2008 and the number of appointments per lawyer involved from several police departments.  These requests for information were refused.  The applicant brought judicial review proceedings which were rejected by domestic courts, finding that while the role of public defenders was a task of the State, the public defenders professional activity was private and their names did not constitute public information. 
 

The Court held that by denying the applicant the requested information, which was readily available, the authorities had impaired the applicant’s exercise of its freedom to receive and impart information, and therefore interfered with its right under Article 10 of the European Convention on Human Rights.
 

The central issue was that the authorities had classified the information sought as personal data.  The Court considered that public defenders’ professional activities could not be considered to be a private matter.  It found that disclosure of public defenders’ names and the number of their respective appointments would not have subjected them to exposure to a degree surpassing what they could have foreseen when they registered as public defenders.  The refusal to provide the information had impaired the applicant NGO’s contribution to a public debate on a matter of general interest.  There had not been a reasonable relationship of proportionality between the measure complained of and the legitimate aim pursued.  The Court found that there had been a violation of Article 10 of the Convention.
 

Read Inforrm article here.
 


Pro Bono
 
The PILS Project has a register of legal practitioners who are interested in undertaking pro bono work with the PILS Project.  Opportunities range from writing an initial opinion to involvement in a test case, contributing to publications on public interest cases/issues and delivering training and talks to NGOs and legal practitioners. If you would like to join the register and find out more about opportunities to do pro bono work, please email caroline@pilsni.org to request an application form.
 
 

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