Public Interest Litigation Update:

18th April 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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Key Abbreviations used in the update:
NIHC: Northern Ireland High Court
NICA: Northern Ireland Court of Appeal
EWHC: England & Wales High Court
EWCA: England & Wales Court of Appeal
UKSC: UK Supreme Court
ECtHR: European Court of Human Rights
ECJ: European Court of Justice



Job at the PILS Project
The PILS Project seeks a Solicitor and Project Manager to cover maternity leave commencing 27th June 2012. The post is for 6 months duration with potential for extension.
 
The successful candidate will lead, under the authority of a Board of Trustees, a public interest law centre which will secure improvements in the protection and promotion of human rights in Northern Ireland. The post-holder will be responsible for developing and carrying out the operational work of the project, including managing its staff, liaising closely with various stakeholder organisations to increase public interest litigation efforts and undertaking litigation in Northern Ireland’s courts and/or tribunals where appropriate.

The successful candidate must be eligible to practice as a solicitor in Northern Ireland and must have at least 2 years post qualification experience, preferably 3 years post qualification experience and preferably in litigation with a public policy or rights based perspective. S/he will have a commitment to the promotion of human rights.
 
The salary scale for the post is £35,430 per annum(or per rata) + 8% pension.
 
Process:
The closing date for receipt of applications is 12pm on Friday 4th May 2012.
 
To discuss this post/project, interested individuals should contact Melissa Murray on 02890446203.
 
For an application form, job information and further details, please contact Mickey Ghanni in writing (hard copy or e-mail) at The PILS Project, Arthur House, 41 Arthur Street, Belfast, BT1 4GB or mickey@pilsni.org.
 
Interviews will be held on Wednesday, 16th May 2012.

Mental Health
  • ECtHR: Case admitted straight from the County Court reaffirms Rabone ruling that voluntarily detained patients can be covered by Art. 2 duties
Reynolds v UK [2012] ECHR 437
 
The European Court of Human Rights (ECtHR) admitted a case on appeal directly from the County Court in England and proceeded to affirm the UK Supreme Court’s ruling in Rabone V Penine Care NHS[2012].
 
The case was taken by the mother and sister of a man, Mr Reynolds, who had been admitted as a voluntary patient to a Council run support unit after hearing voices telling him to kill himself.  Mr Reynolds later fell to his death from the sixth floor window in the unit.  The inquest recorded an open verdict.  Mr Reynold’s mother made a claim for damages under the Human Rights Act in the County Court but this was rejected. Mrs Reynolds was advised that domestic appeals were unlikely to be successful and her legal aid was withdrawn.  She decided to take her case to Strasbourg.
 
The ECtHR ruled the case to be admissible despite the fact that it came directly from the County Court, i.e. was not appealed to the Court of Appeal or the Supreme Court, which would be the normal procedure.  This ruling was based on the fact that Mrs Reynolds had been advised that further domestic litigation would be hopeless (and expensive).
 
The ECtHR proceeded to uphold the UKSC’s decision in Rabone (which had been delivered after the County Court had given its decision in this case).  It ruled that the circumstances of Mr Reynold’s death did engage the operational duty on the state under Art. 2 to take reasonable steps to protect him from a real and immediate risk of suicide, thereby extending the scope of Art. 2 to voluntary mental health patients.  The Court further found that the Art. 13 right of Mrs Reynolds to an effective remedy had been breached since there was no mechanism in domestic law for her to obtain compensation.
 
Read a full analysis of the case on the UK Human Rights blog here.
  •  Report: CJI report highlights deficiencies in the criminal justice system for people with mental health issues
The Criminal Justice Inspectorate (CJI) has published a report looking at difficulties faced by people with mental health issues in the criminal justice system.  The report is a follow-up to the CJI inspection in March 2010.  Continued problems include lack of early assessment when people enter the criminal justice system and no clear rules about where people with mental health issues should be taken when arrested or detained. 

Click here to read the report.


Learning disabilities and special educational needs
  • NIHC: Education Board failed in its duty to identify support needed for child with special educational needs
L’s Application [2012] NIQB 18
 
Mr. Justice Treacy has ruled that an Education Board failed to properly identify and assess the support necessary for a boy with special educational needs.
 
The boy had been assessed as having well below average reading, spelling and comprehension skills by the Board’s educational psychologist.  It was recommended that he be referred to a support service for pupils with such literary difficulties.  The boy’s mother expected this would involve direct literacy support, however the Board merely organised for a teacher from the support service to talk to the boy’s teacher and provide some general advice.  The mother’s appeal against this decision was rejected by the Board on the grounds that a high level of referrals had been made to the literary support service, that they had a limited budget for the provision of this service and that her son had been identified as a priority for the next academic year.
 
The boy’s mother judicially reviewed the decision of the Board to delay the provision of specialist support to her son.  The judge ruled in her favour by deciding that it was unlawful for the Board to adopt this approach.  In delaying the provision of specialist support the Board effectively denied the child the opportunity to be identified as needing a Stage 4 statutory assessment.  This was in breach of the Board’s statutory duties.
 
Mr. Justice Treacy also ruled that while the Board was entitled to have regard to its available resources and to prioritise its interventions accordingly, it must balance such considerations against its statutory duty to make interventions within a reasonable time.  What is a reasonable time will depend on the circumstances of each case but must take into account the significant impact that delaying access to specialist support can have on children with special educational needs (the success rate for intervention for literacy and numeracy difficulties drops from 80% to 20% between the ages of 6 to 10). The boy in this case was 9 and Mr. Justice Treacy argued that he should be provided with direct literacy teaching from a specialist as recommended by the educational psychologist without delay.
  •  NIHC: Girl with Down’s Syndrome to challenge exclusion from mainstream school
A girl with Down’s Syndrome has launched a court challenge after she was refused a place at the school of her choice.  Leave was granted to judicially review a decision of the special educational needs tribunal that upheld the decision to send the girl to a school that was not her preferred choice. It is hoped that the case will be heard before the summer in order to reach a resolution before the start of the new term in September.
 
Read a news article on the case here.
  •  EWHC: Police restraint of boy with autism in breach of HRA and non-discrimination
ZH v Commissioner of Police for the Metropolis [2012] EWHC 604
 
The High Court in England has ruled that the police’s restraint of a boy with autism and learning disabilities was not in his best interests and was in breach of the Disability Discrimination Act and the boy’s Art. 3 (inhuman and degrading treatment), 5 (liberty) and 8 (private and family life) ECHR rights.
 
The boy had been at a swimming pool and refused to leave the poolside after becoming fixated with the water.  The pool manager called the police, despite the boy’s carer pointing out that he was not hurting himself or presenting a danger to others.  On arrival the police did not consult properly with the boy’s carer and forcibly removed the boy.
 
In reaching its conclusion the Court found that the police had failed to consult those who knew the boy best, failed to attempt to find less restrictive alternatives in their removal technique and failed to make reasonable adjustments for the boy’s autism.  The police’s actions constituted assault, battery and false imprisonment as well as inhuman and degrading treatment under ECHR Art. 3. 
 
Read a full overview of the case on the UKHRB here
.

Art. 9: Freedom of thought, conscience and religion
  • ECtHR: No breach of lawyer’s Art. 9 rights for refusal to adjourn court date that fell on Jewish holiday
Francesco Sessa v Italy ECHR 144 (2012)
 
The European Court of Human Rights has held that it was not a breach of a Jewish lawyer’s right to freedom of religion for an Italian court to refuse to adjourn a case in which the lawyer was acting, which was listed to be heard on Yom Kippur, a Jewish holiday.
 
The majority of the court found no interference with Art. 9 and indicated that even if there had been, such interference was justifiable in order to uphold the right of the public to the proper administration of justice for cases to be heard within a reasonable time.
 
Read the ECtHR summary of the case here and an analysis of the case on the Strasbourg Observers blog here.


LGBT
  • Consultation: Legalisation of gay marriage in England and Wales
A consultation is on-going to inform consideration as to whether gay marriage should be legalised in England and Wales.  The consultation is open until 14th June 2012.  Click here to view the full document and to view an analysis of it on the UKHRB click here.
  •  ECtHR: No violation of Art. 10 for conviction for distribution of anti-gay leaflets
Vejdeland and Others v Sweden(Application no. 1813/07)
 
This case concerned four applicants who went into a Swedish secondary school and distributed approximately one hundred leaflets containing statements relating to ‘homosexuality and other sexual deviances’.
 
The applicants were charged under Swedish law with agitation against a national or ethnic group. Following this they complained to the ECtHR of a violation of Article 7 (arguing that they were convicted of a crime not prescribed by law) and Article 10 ECHR (violation of their right to freedom of expression). They claimed the purpose of their activity was to start a debate about the provision of education in Swedish schools and not to express contempt for homosexuals.
 
The ECtHR considered the convictions and the complaint, focusing firstly on the lawfulness and legitimate aim and secondly, on the necessity of the interference. In reaching its decision the court considered a number of factors relating to the content and intentions of those distributing the leaflets, previous cases and the target audience which the court described as “young people who were at an impressionable and sensitive age and who had no possibility to decline to accept them”.
 
The ECtHR held that while the conviction constituted an interference with freedom of expression, it had been lawful and necessary to protect the rights of others and it therefore found no violation under Article 10.  
 
Click here to view the judgment, to read an analysis of the case on the ECHR BLOG click here and to read an analysis on the UKHR Blog click here.
  •  ECtHR: No ECHR violation for refusal to allow a woman to adopt her same-sex partner’s child
Gas and Dubois v France (2012) (application no. 25951/07)
 
The ECtHR has ruled that it was not a breach of Articles 8 and 14 for a French tribunal to reject the application of a woman to adopt her same sex partner’s biological child. Under French law a child that is still in the custody of one of its biological parents can only be adopted by a spouse of that parent.  However, in France same sex couples cannot get married so they are unable to meet this criteria.
 
The court reached its conclusion on the basis that there is no right to adopt within Article 8, there is no obligation under the ECHR for states to allow same sex couples to marry and there was no discrimination on the basis of sexual orientation since un-married heterosexual couples were also not permitted to adopt in these circumstances.
 
Read the ECtHR summary of the judgment here.


Discrimination
  • ECtHR: Breach of Art. 8 & 14 for Russia to refuse service-men parental leave
Konstantin Markin v Russia (Application no. 30078/06)
 
The ECtHR has held that Russia breached Articles 8 (right to private and family life) and 14 (non-discrimination) in refusing service-men parental leave available to service-women.  The Court reiterated that a difference in treatment on the ground of sex requires “very weighty reasons” and that “references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification”.
 
Read a summary of the judgment on the Strasbourg Observers blog here.
  •  ECJ: Advocate General issues opinion on whether Dutch funding rules discriminate against higher education students from migrant worker families
European Commission v Netherlands Case C-542/09
 
Advocate General Sharpston has issued an opinion in a case currently being deliberated upon by the ECJ.  The case, which has been taken by the European Commission, questions the legality of a Dutch law requiring students who wish to study abroad to have resided in the Netherlands for at least three out of the six years prior to starting their studies. 
 
The Commission argue that by imposing this residence requirement, the Netherlands is indirectly discriminating against migrant workers and is therefore breaching EU law on freedom of movement. The Netherlands sought to justify the discriminatory residence requirement based on economic and social objectives. The Advocate General argued, however, that the residence requirement is not an appropriate or proportionate means of attaining those objectives.
 
The opinion of the Advocate General is not binding on the court but it does provide a proposed legal solution to the case which the judges of the ECJ will consider as part of their deliberations.  Judgment will be delivered at a later date.
 
Read the full press release here.
  •  ECJ: Advocate General issues opinion on payment of child benefits in member states
Joined Cases 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, Minister for Justice, Equality and Law Reform
 
Advocate General Mazák has provided an opinion in a case before the European Court of Justice (ECJ) involvingtwo Polish men who were working in Germany but lived in Poland and were covered by the Polish social security system. Both men were refused child allowance of €154 per month while they worked in Germany. Under German law a person who isn’t permanently or habitually resident in Germany is entitled to child benefit if he is liable to pay income tax but not for a child who can receive a comparable child allowance in another member state.
 
The Federal Finance Court in Germany asked the ECJ whether EU law prevents Germany from granting child allowance in these circumstances and whether a Member State may exclude or reduce entitlement to family benefits where a similar benefit may be received in another Member State.
According to the view of the Advocate General “EU law must not have the effect of depriving a Member State, even if it is not the competent State, of the right to grant workers social benefits provided for under its national legislation”, however “in such situations (as these), there is no obligation on a Member State to grant such benefits”.
 
The court will now deliberate on the case and judgment is expected at a later date. To read the ECJ press release on the Advocate General’s opinion click here.
  •  Briefing: FRA research on inequalities and multiple-discrimination in healthcare
The Fundamental Rights Agency of the European Union is conducting research into inequalities and multiple-discrimination in healthcare. For further information click here.


Freedom of information
  • ECJ: Ruling sought on access to environmental information
The Federal Administrative Court in Germany has asked the European Court of Justice for a preliminary ruling to clarify what restrictions Member States may put on the public’s right of access to environmental information. The request follows a case taken by Flachglas Torgau GmbH, a German glass manufacturer that sought information relating to the legislative process around allocation decisions for emission licences during 2005-2007 and the implementation of that law. However, the ministry refused the request.

Under Directive 2003/4, which implements the Aarhus Convention in EU law, citizens and businesses have a right of access to environmental information held by public authorities. However, Member States have the option to exclude that right in respect of ‘bodies or institutions acting in a … legislative capacity’. Member States can also refuse requests for such information in certain cases, in particular, where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, so long as the confidentiality is provided for by law.

The ECJ clarified that “public access to environmental information may be refused by a ministry to the extent that the information relates to a legislative process in which the ministry is participating. However, that exception no longer applies if the legislative process has ended.”

The Panopticon blog, which offers a full analysis of the ruling here outlines other ECJ judgments on this issue.  Read the ECJ press release here.

Immigration and Asylum
  • EWCA: The meaning of “compelling reason” within the second tier tribunal appeals test
JD (Congo) WN (Gambia) ES (Iran) MR (Bangladesh) v Secretary of State for the Home Department [2012] EWCA Civ 327
 
The Court of Appeal has considered what is meant by “compelling reason” within the context of the test for considering second tier appeals. Under the Tribunals Courts and Enforcement Act 2007, and the 2008 Order, permission to appeal to the Court of Appeal from a second tier tribunal is only granted in cases which raise some important point of principle or practice or there is some “compelling reason” for the Court to hear the case.
 
Read a summary of the Court’s judgment by the Joint Council for the Welfare of Immigrants here.
  •  Briefing: what Zambrano andMcCarthy rulings mean for residents in NI
Law Centre NI has produced a briefing paper outlining what the judgments in European Court of Justice cases Zambrano andMcCarthy mean for residents in Northern Ireland.  Click here to read the briefing.

Disability
  • Article: The ECHR and the institutionalisation of people with mental disabilities
A post on the Strasbourg Observers blog discusses a number of recent cases before the ECtHR concerning the institutionalisation of people with mental disabilities. The article suggests that there are voices within the Court that think that the European Convention can be used to protect institutionalised persons with a mental disability using rights other than those contained in Article 8, the right to family life.  This may include Article 5, the right to liberty.  The article also points to the UN Convention on the Rights of Persons with Disabilities, which specifically recognises the right to community living and also references research which shows that community care is not more expensive than institutional care, and in fact, when assessing both direct and indirect long terms costs, may actually be cheaper for the state.
 
Click here to read the article.


Older people
  • New initiative: Council of Europe to draft instrument for the promotion of the human rights of older people
A drafting group has been convened by the Council of Europe to develop proposals for a non-binding instrument for the promotion of the rights of the elderly across Europe.  The group met for the first time at the end of March 2012.  Click here for further information.
Equality
  • Event: JUSTICE Equality Conference 2012 (26.06.2012)
JUSTICE will be holding a conference entitled Equality Conference 2012: Diversity and Austerity on 26th June 2012 in London, which will look at the impact of the Equality Act 2012.  The keynote speaker for the event will be The Hon. Mrs Justice Cox, High Court Judge of the Queen’s Bench Division.  Plenary speakers include Professor Sir Bob Hepple QC, Tom Linden QC, Matrix Chambers, and Karen Monaghan QC, Matrix Chambers.
 
Click here for further information.


Criminal justice system
  • NIHC:  When does the coverage of a search warrant end?
McKiernan’s Application [2011] NIQB 135
 
This case involved the search of premises in connection with the murder of police constable Ronan Kerr.  A search warrant for forensic trace evidence had been granted to the Police Service for Northern Ireland (PSNI).  The search lasted for approximately 6 days during which time the applicant and her family were excluded from their home.  Records show that an initial search by a forensic team was concluded two days after the search began and that further searches were later conducted over the course of the next four days.
 
The Applicant argued that the search warrant covered only the initial search and that subsequent searches required further warrants.  The judge disagreed however, concluding that simply because the forensic team had concluded a search did not signify the completion of the overall search for which the warrant was granted.  The fact that the woman and her family were not permitted to re-enter the premises following the initial search supported the PSNI’s argument that the warrant covered the multiple forensic searches as part of one overall search operation.
  •  EWCA: No requirement for decision-making process for segregating prisoners to be Art. 6 compliant
Bourgass and others v Secretary of State for Justice [2012] EWCA Civ 376
 
The Court of Appeal in England has ruled that there is no requirement for internal decisions taken by prison governors and segregation review boards on whether to segregate prisoners to be compliant with Art. 6.
 
The court judged association with other prisoners to be a privilege, not a right, the withdrawal of which can be challenged through judicial review.  Therefore, while the decision on segregation itself may not be compliant with Art. 6, the process as a whole, including the availability of judicial review is Art. 6 compliant.
 
Read the UKHRB analysis of the case here.


Judicial review: legitimate expectation and promptness
  • EWCA: No legitimate expectation for NGO on air pollution issue
Cornwall Waste Forum St Dennis Branch v Secretary of State for Communities and Local Government [2012] EWCA Civ 379
 
It has been held that an NGO did not have a legitimate expectation that the Secretary of State (SoS) would decide upon an air pollution issue rather than leaving it to the Environment Agency. 
 
In the case all competent authorities were required to make an assessment before planning permission was granted for the construction of two energy-from-waste plants. The SoS, who was named as a competent authority in the relevant regulations, did not make such an assessment before planning permission was granted.  The NGO opposed to the granting of planning permission, argued that this breached its legitimate expectation.  The Court of Appeal disagreed however and concluded that the case raised a question of procedural regularity rather than legitimate expectation.
 
Read a full overview of the case on the UKHR Blog here.
  •  EWCA: ‘Promptness’ in cases raising points of EU law
Berky v Newport City Council [2012] EWCA Civ 378
 
Under the Civil Procedure Rules a judicial review challenge must be brought “promptly and in any event not later than three months”. This means that there should be no unnecessary delay in bringing proceedings. Following the cases of Uniplex at the European Court of Justice and the Buglife and Broads cases in the High Court of England & Wales, it has been established that for judicial reviews based on points of EU law the 3 month time limit is not limited by the promptness requirement.
 
In this case a Court of Appeal majority agreed with the Buglife and Broads rulings to find that a judicial review to the granting of planning permission to Morrisons could be heard even though it was only launched a day before the end of the three month period, i.e. not promptly.  Permission to proceed with the judicial review was not granted in the end since the case did not pass the merits test, so the issue of promptness was technically obiter.  This means the issue is still open to the Court of Appeal to decide upon in later cases.
 
According to the UKHRB analysis of the case, the strong dissenting opinion of Carnwrath LJ may be persuasive in the future.  He argued that even if the case could proceed without the promptness requirement, the courts could still use their discretion to refuse relief for a lack of promptness. Another point of disagreement which may reoccur in the courts is if a case raises arguments under both EU and domestic law, can the promptness rule still be applied to the domestic law arguments or should the case in its entirety proceed since all of the arguments relate to a single decision being challenged?


Pro bono news
  • Lawyers sought
The PILS Project is compiling 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 find out more about opportunities to do pro bono work please email marieanne@pilsni.org.
  • Legal Support Project
In March 2012 Law Centre (NI) launched the Legal Support Project, a free representation unit that concentrates on representation at social security appeals and employment tribunals. The initiative came about because of an increased demand for representation which is currently not being met. The work is undertaken by volunteers, trained and supported by the staff of the project.
 
The Legal Support Project is 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.


Useful resources
  • Paper on State compliance with ECtHR judgments
A new paper exploring the extent of compliancewith the judgments of the European Court of Human Rights (ECtHR) has been published. The paper is based on statistical evidence of state compliance with all ECtHR judgments delivered up until 2010. The paper titled Rational Choice within Normative Constraints: Compliance by Liberal Democracies with the Judgments of the European Court of Human Rights is available here.
 
To view the abstract and read an overview on the ECHR Blog click here.


Jobs, internship & competitions
  • Jobs at NICEM
The Northern Ireland Council for Ethnic Minorities (NICEM) is currently recruiting for a Legal Policy Offiicer, a Parliamentary and Campaigns Officer and a Receptionist/Finance Assistant.  Click here for further information.
  •  Jobs at the Children’s Law Centre
The Children’s Law Centre is currently recruiting for a part-time Assistant Policy Officer to cover maternity leave and a part-time Youth Participation and Advocacy Worker. Click here for further information.
  •  JUSTICE Summer Internship Programme 2012
London based human rights organisation JUSTICE is inviting applications for their Summer Internship Programme 2012.  Interns will undertake legal research in one of JUSTICE’s main areas of policy work: human rights, criminal justice or EU justice.  Applications are invited from law graduates.  The closing date is 26th April 2012.  Click here for further information.
  •  Interights 6 month internship for lawyer/academic
Interights  is recruiting for a lawyer or academic to undertake a six month funded internship to work on a strategic litigation project addressing torture and/or cruel or inhuman treatment within healthcare settings in Sub-Saharan Africa. The closing date for applications is 30th April 2012.  Click here for further information.
  •  Public Interest Law Alliance seeks law students
PILA, based in Dublin, is seeking expressions of interest from law students in Ireland who would like to become more involved in their work to expand the use of law in the public interest and for the benefit of marginalised and disadvantaged people in Ireland. PILA wants to create a register of law students, similar to its register of pro bono lawyers.  Click here for further information.


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