Public Interest Litigation Update:

29th September 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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Save the date! The PILS Project and PILA host joint conference: 11th November 2011
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 the 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 (Sean Doran BL, 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.



Access to Justice Review
  • Consultation document published on Access to Justice Review
The report of the Access to Justice Review commissioned by David Ford has been published.  It details 159 recommendations including:
 
-       The introduction of condition fee arrangements (no-win no-fee);
-       A review of family law and justicein 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 grantsfor the provision of advice and in some cases help at tribunals in the priority welfare areas – 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 no 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.


Budget cuts
  • Hearing of challenge to library closures underway
 A judicial review of two local authorities’ decisions to close libraries in their areas has begun in the High Court.  It is 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.  Read more here.
  •  Court dismisses challenge to cuts in care budget
 R (JG and MB ) v. Lancashire County Council [2011] EWHC 2295 (Admin)
 
The Administrative Court has dismissed an application for judicial review of a local Council’s decision to reduce the budget for adult care services, brought by two disabled women.  According to an analysis of the case on the UK Human Rights blog, the judgment reinforces the emerging body of case-law signifying that judges are willing to test specific policies in which an authority has failed to comply with the equality duty, yet are more reluctant, or will be less likely to expect a detailed equality impact assessment, when the policy is at macro-level.

  • Guidance for local authorities on protecting the voluntary sector in budget cuts decision-making
The UK Communities Minister has published guidance for local authorities on how to protect the voluntary sector during decision-making on funding cuts.  It stipulates that voluntary organisations should be consulted as early as possible before decisions affecting their funding are made and recommends providing at least three months’ notice if there is to be a reduction.
  • Hammarberg warns that Ireland’s budget cuts put human rights at risk
The European Commissioner for Human Rights, Thomas Hammerberg, has released a statement warning that Ireland’s budget cuts put human rights at risk.


LGBT
  • Same sex marriage may be legalised in UK
The UK Equalities Minister, Lynne Featherstone, has announced that a consultation will be held in March next year on legislation to legalise same sex marriage in England and Wales.  Currently same sex couples may only enter a civil partnership and only heterosexual couples can be married.  Northern Ireland would have to pass its own legislation to make marriage available for same sex couples locally.
  • NI Health Minister says ban on gay men donating blood will remain
Edwin Poots, the Northern Ireland Health Minister, has announced that Northern Ireland will not follow the rest of the UK in legalising gay men donating blood.  Under new legislation in England and Wales any gay men whose last sexual contact was over a year ago will be able to donate blood.  According to the Rainbow Project Northern Ireland’s different legal position will make it very difficult to obtain blood supplies from other parts of the UK in future.  Read more here.


Prisoners
  • UK may further delay action on prisoner voting rights
The UK government may be able to further delay its compliance with the decision of the European Court of Human Rights to end the blanket ban on prisoners voting.  An Italian case has been referred to the Grand Chamber of the court, six years after the Hirst v UK judgment and a year after Greens & MT v UK, which seeks to challenge the legality of Italy’s lifelong ban on certain prisoners voting.  According to this report the UK government will be joining the Italian appeal which now allows the UK to delay its compliance until six months after judgment has been delivered, which itself could take a year or longer.  Read Adam Wagner’s overview of the issue on the UK Human Rights Blog here.


Education
  • Challenge to Scottish University fee system
Human rights law firm Public Interest Lawyers is threatening to challenge the Scottish University fee system for charging students from England, Wales and NI to study at Scottish Universities whilst providing it free to Scottish and other EU students.  The firm will argue that this system is in violation of Art. 14 of the European Convention on Human Rights by discriminating on the basis of national origin, and also that it is in breach of the Equality Act 2010.  Read more here
 
Matthew Kelly writing in the Guardian raises a number of interesting points relating to the challenge.  He argues that the Equality Act 2010 is unlikely to be of assistance in this case but that the ECHR arguments may gain more traction (assuming it will be argued on the basis of Art. 14 discrimination in conjunction with the right to education contained in Art. 2 Sch. 1).  This being so Mathew points out that it is not clear that indirect discrimination has occurred since the basis of free university education in Scotland is residency rather than national origin.  Also, interestingly, since it is the UK that is the signatory to the ECHR, and not Scotland, the challenge would be against the UK Government.  Geoffrey Bindman, writing on the Standpoint blog, also considers the case here.
 
Public interest lawyers is also representing two sixth formers in England who are challenging the lawfulness of the government’s decision to allow universities to raise tuition fees.  Read more on that case here.
  • Proposals drafted to allow NI universities to increase fees for GB students
It has been reported that legislation is being drafted to allow universities in Northern Ireland to increase their fees to up to £9,000 for students from Great Britain (but retain the current rate for Northern Ireland students).  It is alleged that this is intended to prevent an influx of students who hope to avail of Northern Ireland’s cheaper university fees once fees rise in England and Wales.  It would be interesting to see details of such proposals given the Scottish challenge that is currently underway.


Travellers
See details on the current consultation on Traveller accommodation in the Legislative and Policy section below.
  •  Dale Farm fight continues…
The High Court has granted Dale Farm residents an extension to an injunction stopping their evictions.  The decision was delivered pending the outcome of the Travellers’ application for judicial review of their eviction which will be heard on Thursday 29th September.  Read a news story on the latest development here, an analysis of the case by David Keane on the Human Rights in Ireland blog here, an article on the RightsNI blog by Law Centre NI’s Anna Morvern here and the article What is really going on at Dale Farm by Conor Gearty.
  • Irish court overturns traveller discrimination ruling
An Irish Circuit Court has overturned the decision of the Equality Tribunal by ruling that a school’s policy of giving priority in admissions to boys whose father or brothers attended the school is not indirectly discriminatory against Travellers.  According to PILA’s report on the case, the Irish Traveller Movement Law Centre, who supported the individuals in taking the case, have lodged an appeal to the decision.  The Equality Authority are intervening in the Appeal in what PILA reports is only the their third amicus curiae application to date.
 
David Keane on the Human Rights in Ireland blog provides an overview and analysis of the case here.  Read the judgment here.



Freedom of Information
  • Tribunal rules on the disclosure of information about teachers connected to sexual offences
Colleen Smith v IC and Devon & Cornwall Constabulary(EA/2011/0006)
 
The First Tier Tribunal has upheld the decision of the police not to disclose the number of teachers in specific towns who have been investigated, cautioned and charged under the Sexual Offences Act 2003.  It was confirmed that to do this would be in breach of personal data protection under the Freedom of Information Act (FOIA).  The decision to allow disclosure where the number was zero in certain towns was upheld.  Read the UK Human Rights Blog analysis of the case here.
  • Council must disclose information on vacant properties
Voyias v Information Commissioner and the London Borough of Camden(EA/2011/0007)
 
The First Tier Tribunal has ruled that Camden Council must disclose information on vacant properties in the area to a former member of the Advisory Service for Squatters.  The Council had used the exemption under s. 31(1)(a) of the Freedom of Information Act, which permits the withholding of information where its disclosure would, or would be likely to, prejudice the prevention or detection of crime.  This could include crimes that might be linked to squatting such as damage to property and drug use.
 
The Tribunal overturned the decision of the Information Commissioner in ruling that the Council could not rely on this exemption.  Although squatting is legal, the Tribunal agreed with the Council that the release of this information would likely lead to an increase in criminal damage to vacant properties.  On the other hand the Tribunal also accepted the applicant’s argument that the disclosure would allow some unused properties to be brought back into use, and that it could serve to highlight the high number of unused properties across the country.  It was concluded that the public interest in disclosing the information outweighed the factors in keeping it out of the public domain.
 
Read the UKHRB analysis of the case here and read also details of an open letter published in the Guardian from 158 lawyers and academics discussing how the law on squatting has been widely misrepresented by the media and politicians.



Immigration and asylum
  • European Court finds the decision to deport a man convicted of rape to be a violation of Art. 8
The European Court of Human Rights has ruled that the UK’s decision to deport a Nigerian man convicted of rape was in breach of his right to respect for private and family life under Art.8 of the Convention.  The Court considered the good behaviour of the man while serving his sentence and his family ties in the UK before finding that deportation would disproportionately interfere with his rights.  Read further analysis of the case here and here.
  • Art.8 rights need not always form part of immigration decisions
R(on the application of Sayed) v Secretary of State for the Home Department; R(on the application of Patel) v Secretary of State for the Home Department [2011]EWCA Civ 1059
 
The Court of Appeal has ruled that the Article 8 right to respect for private and family life does not need to inform every immigration decision.  Article 8 needs only to be considered where there has been an alleged breach of those rights and should not be used to guide the interpretation of the Immigration Rules in general.  Read an analysis of the case here.

  • EU Advocate General advises that asylum seekers should not be transferred to another Member State if it would breach their rights under the European Charter of Fundamental Rights
C-411/10 N.S. v Secretary of State for the Home Department
and C-493/10 M.E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform (22.09.2011)
 
In joined cases taken to the European Court of Justice by asylum seekers in the UK and Ireland, the EU Advocate General has advised the Court that it should not be lawful to transfer asylum seekers to other member states in which there is a risk that their rights under the European Charter of Fundamental Rights and Freedoms will be breached. 
 
Usually an asylum seeker must claim asylum in the first European country they enter.  The individuals in these cases first entered Greece and then subsequently made their way to Ireland and the UK.  Since Greece should have been responsible for dealing with their asylum claims the UK and Ireland tried to transfer them back to Greece.  The Advocate General found that the current pressure on the Greek asylum system means that asylum seekers cannot be guaranteed that their rights under the Charter will not be breached.  As a result the UK and Ireland must take responsibility for dealing with their asylum claims.
 
The Advocate General further ruled that in future the transferring member state must determine before transfer whether the asylum seeker will be exposed to a breach of their rights, however they may operate on a rebuttable presumption that their rights will be upheld.  Read the Joint Council for the Welfare of Immigrants’ analysis of the case here and Rosalind English’s on the UK Human Rights blog here.
 
Another aspect to the Advocate General’s opinion concerned the status of the UK (and Poland’s) opt out from certain provisions of the Charter.  Read also Aidan O’Neill QC’s article on the new EUtopia blog here.

  • The reality of life for an asylum seeker
The Joint Council for the Welfare of Immigrants has provided a quick overview of the reality of life as an asylum seeker to counter media misrepresentations that paint them as living a life of luxury at the tax payers expense.  It details how only in very limited opportunities may an asylum seeker legally work, that they are only given on average 65-70% of the rate of Job Seekers Allowance and are often housed in bad conditions in inaccessible houses if they are destitute.


Other public interest cases
  • European Court dismisses case challenging strict liability for underage sex offence
C v United Kingdom Application no. 37334/08
 
The UK Human Rights blog has reported that the European Court of Human Rights has dismissed as ‘manifestly ill-founded’ a case arguing that the principle of ‘strict liability’ for rape of a 13 year old was in breach of the presumption of innocence under Art. 6 and the right to respect for private life under Art. 8.  ‘Strict liability’ means that certain sexual acts with a child of 13 and under are offences regardless of whether the perpetrator knew the child was under age and/or they consented to it.  Read more about the case here
  •  European Court to decide case on kettling
Austin v UK (application no. 39692/09)
 
On September 14th the Grand Chamber of the European Court of Human Rights heard a case that argues that the police tactic of ‘kettling’ breaches Art. 5 of the European Convention, the right to liberty.  The four applicants in the case were kettled, i.e. contained by a police cordon, for around seven hours during May Day protests in London in 2001.  One individual was a protestor while the others were simply passing by the area at the time and got caught in the ‘kettle’.  Read more on this on Liberty’s website here (they are representing one of the individuals).
  •  Landmark Inter-American Commission report on domestic violence case draws on European Court jurisprudence
 Jessica Lenahan (Gonzales) v United States(Report No 80/11, Case 12/626)
 
The Inter-American Commission on Human Rights has delivered a landmark report which finds that a US police force failed to protect the rights of a woman whose children were killed by her estranged husband, the children’s father.  The Commission drew particular attention to the role the European Court of Human Rights has played in advancing the principles of the State’s obligation to prevent acts of domestic violence in cases such asOpuz v. TurkeyKontrová v. Slovakia and Branko Tomasic and Others v. Croatia.  Read more on this on the Strasbourg Observers blog hereand an article on the RightsNI blog by Dr Rhona McQuigg here.



Probono work
  • Lord Chief Justice announces new pro bono scheme
The Lord Chief Justice, Sir Declan Morgan, has announced that a small pro bono pilot scheme is currently being established to provide advice on practice and procedure for those who find themselves involved in key types of High Court litigation without legal representation.  He paid tribute to the importance of pro bono legal work in Northern Ireland and reaffirmed his support for its development during his speech at the opening of the legal year 2011/12 on September 5th.  He continued:
 
“Pro bono is an established part of the legal world elsewhere.  Such work has citizenship benefits for the firms involved.  It also offers valuable experience to young lawyers as well as those with more experience.  Most importantly, it is a route to access justice for those who could otherwise face real problems.”
  •  Calling all lawyers……
The PILS Project is compiling a register of practitioners who would be interested in undertaking pro bono work with the PILS Project.  Opportunities could 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 info@pilsni.org.


Legislative and policy updates
  • UK resists EU directive on the right to a lawyer
A motion was recently passed in the House of Commons in support of the UK opting out of a proposed new EU Directive on the right to a lawyer in criminal proceedings.  The Government has also now added its signature, alongside the Netherlands, France, Belgium and Ireland, to a ‘note’ expressing its reservations about the Directive.  The note argues that the proposed Directive as it stands would “present substantial difficulties for the effective conduct of criminal proceedings by their investigating, prosecuting and judicial authorities”.  Read Jonathan Goldmith’s article on the issue on the Law Gazette blog here.
  •  Criminal liability for deaths in custody comes into force
The ‘custody provisions’ of the Corporate Manslaughter and Corporate Homicide Act 2007 came into force across the UK on the 1st September 2011.  This means that the government, police and private corporations can be held accountable under criminal law where a “gross breach of a duty of care” has led to the death of a detainee.  It is suggested on the UK Human Rights blog, here that this will not add a great deal more to the level of accountability that already exists.
  •  Consultation on Traveller accommodation policy
The Department of Environment has issued a proposed amendment to planning policy H3 of PPS 12 in order to provide serviced sites for Travellers outside of settlements.  Read the consultation document here.  The closing date for responses is 30th September 2011.

Other PIL news
  • Irish Human Rights Commission and Equality Authority to merge
The Irish government has announced a legislative proposal to merge the Irish Human Rights Commission with the Equality Authority.  The new entity will be named the Human Rights and Equality Commission with 12 Commissioners.  Read more here.


Useful resources
  • Recent posts on RightsNI blog
Papering over the cracks, by Kate Ward of the PPR Project, looks at how the Minister for Housing Development and the Northern Ireland Housing Executive have failed to take into account the views of local residents and human rights obligations in addressing the chronic housing conditions in the seven towers in north Belfast.
 
UK breaches Art. 3 ECHR in its treatment of immigration detainee, by Law Centre NI’s Anna Morvern, discusses a recent English case in which the court ruled that the detention of a man by immigration authorities was unlawful and violated his right not to be subjected to inhuman or degrading treatment.
 
Northern Ireland’s DNA Database Proposals: A Risk or Rights Based Approach, by PhD student David Dwyre, looks at Northern Ireland’s proposals to amend legislation governing the retention of DNA in response to the European Court decision in S & Marper v UK.
  •  Article on filming the police
Hugh Tomlinson QC on the UK Human Rights Blog has posted an article on the legality of filming the police in public places, during for example public protests and demonstrations.
  • EHRC Report into disability harassment
The Equality and Human Rights Commission has launched a report of their Inquiry into disability related harassment and how well public authorities in Great Britain are addressing it.  Read the report here.
  • New Human Rights Commissioner Comment on homophobic harassment in schools
European Commissioner for Human Rights, Thomas Hammarberg, has called for schools across Europe to stamp out homophobic and transphobic bullying and harassment in his most recent Human Rights Comment.
  •  Article on the role of the European Court of Human Rights and the European Court of Justice
Rosalind English’s recent article on the UK Human Rights blog looks at the jurisdiction of both the European Court of Human Rights and the European Court of Justice in cases which engage both a Convention right and matters of EU law.
  •  Ministry of Justice Report on responding to human rights judgments
The Ministry of Justice has published its annual report to the Joint Parliamentary Committee on Human Rights on the UK Government’s response to human rights judgments during 2010-11.  According to the report eight leading European Court judgments have not been dealt with by the UK (six of which relate to the investigation of deaths in Northern Ireland).  Also included in the report are details of the UK’s response to recent European Court judgments such as Gillan & Quinton v UK, Kay v UK and Al-Jedda & Al-Skeini v UK.
  •  European Court statistics on violations 1959 – 2010
The European Court of Human Rights has published a report containing statistics on violations by each state over the period 1959 – 2010.  It shows that the right to a fair trial (Art. 6) has been the violation most frequently found against the UK.  Interestingly, it also reports that while a violation has been found in 61% of admissible cases taken against the UK, only 3% of applications made to the court have been declared admissible or were not struck out for some other reason.
  •  European Court case law on the European Union
The European Court has published a fact sheet containing case-law in which the court has decided on issues relating to the European Union and European Community Law.


Jobs and Events
  • Judicial Review Trends and Forecasts (13.10.11)
The Public Law Project’s annual human rights  judicial review conference will take place in London on 13th October.  Content will include an overview of the year in judicial review, the use of international law in public law claims, a practical workshop for NGOs on bringing cases in their own name, a session on practical obligations within consultation processes and a session on litigating the cuts.  Click herefor further information.
  • Funded internship on LGBT rights at Interights (Deadline 16.10.11)
Interights are offering a three month paid internship at their offices in London, starting in January 2012, for a lawyer or academic working on LGBT rights in Europe.  Click here for further information.
  • JUSTICE Human Rights Law Conference (19.10.11)
This year’s annual JUSTICE Human Rights Law Conference will host the Lord Chief Justice of England and Wales, Lord Judge, as keynote speaker and a range of other leading practitioners on issues such as immigration, the Bill of Rights Commission, judicial review and equality.  Click here for further information.
  • Law Society of England & Wales: Human Rights Symposium  (21 &  22.10.11)
The Law Society of England & Wales is organising its 2011 Annual Symposium in partnership with the Equality and Human Rights Commission, Justfair and the Human Rights Centre (University of Essex). This year's topic is "Realising economic, social and cultural rights in the UK".
 
The symposium is designed to enable approximately 250 judges, scholars, policy makers, legal practitioners and community representatives to exchange views and consider the problems and prospects for the effective enjoyment of rights in the UK.
  • Chief Commissioner of the Equality Commission (18.10.11)
The Northern Ireland Office is currently recruiting for a Chief Commissioner for the Equality Commission for Northern Ireland.  Click here for further information.  The closing date for the receipt of applications if the 18th October 2011.


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