Public Interest Litigation Update:

29th July 2014

 

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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Legal Aid
  • Proposed legal aid residence test unlawful and discriminatory
The Queen (on the application of the Public Law Project) v The Secretary of State for Justice (2014) EWHC 2365 (Admin)
 
On 15th July, the High Court of England and Wales delivered its scathing judgment on the Justice Secretary’s controversial plans to introduce a ‘residence test’ for civil legal aid eligibility.  The main thrust of the plans is to prevent those who could not prove one year’s lawful residence in the UK from accessing the legal aid scheme even if they had the most meritorious of cases.
 
The Court unanimously held that the Justice Secretary did not have the legal power to introduce the test by means of secondary legislation.  The Court also declared that the test would amount to unlawful discrimination as it would advantage one claimant over another merely on the grounds of their country of lawful residence. 
 
It is notable that the Ministry of Justice has indicated its intention to appeal.
 
The legal charity, Public Law Project (PLP), who took the judicial review said:
‘We are heartened by this judgment, which embodies and articulates the finest traditions of our justice system and provides a timely illustration of the importance of judicial review as a check on unlawful executive action.’
 
Further commentary from PLP is available here.  Read comprehensive commentary from The Justice Gap here.
International Human Rights
  • European Court of Human Rights (ECtHR) upholds French full veil ban
S.A.S v France (Application No. 43835/11)

In 2010 France introduced a law making it illegal for anyone to cover their face in a public place.  This case was brought by a French woman who argued that the ban on wearing the Muslim full-face veil, known as the Niqab, violated Article 8 ECHR (respect for private and family life), Article 9 (freedom of thought, conscience and religion) and Article 14 (prohibition on discrimination).

The French Government argued that the ban was put in place to ensure respect for the minimum set of values of an open democratic society. This included respect for gender equality, respect for human dignity and respect for the minimum requirements of life in society, or “living together”.
The ECHR ruled that the ban ‘was not expressly based on the religious connotation of the clothing in question but solely on the fact that it concealed the face.’  It found that the ban was proportionate to the preservation of the notion of “living together”.

To read further commentary from the UK Human Rights Blog please click here.  The reaction from the barrister who represented the applicant can be found here.

Social Security
  • Government’s Back to Work legislation incompatible with ECHR
R(on the application of Reilly (No. 2) and another) v Secretary of State for Work and Pensions, [2014] EWHC 2182 (Admin)

The High Court of England and Wales ruled that emergency legislation, Jobseekers (Back to Work Schemes) Act 2013, interferes with human rights protected under Article 6(1) ECHR. 

The retrospective legislation was introduced by the government last year three days after the Court of Appeal found flaws in the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011.  Under these regulations, job-seekers were required to work for no pay.  As a sanction, the job-seekers allowance could be withheld from those who refused to participate.  The introduction of the 2013 Act had the effect of retrospectively validating the 2011 Regulations ensuring that the government was not forced to repay claimants who had been penalised for not participating in the ‘work for no pay’ scheme.  

A spokesperson for the Department of Work and Pensions has stated that the Government will appeal and they will not be repaying any sanctions pending that appeal.  It is estimated that the government could have to pay out £130 million to penalised claimants.

Click here to read an article from The Guardian. Details of the original case that led to this judgment can be found here.

Immigration
  • ‘High risk of unfairness’ in fast-track immigration system
Detention Action v Secretary of State for the Home Department (2014) EWHC 2245

On 9th July the High Court of England and Wales ruled that a system for fast-tracking asylum claims has ‘serious failings’ and is therefore being operated unlawfully by the government. 

The Detained Fast-Track (DFT) system keeps asylum-seekers in detention while a decision on their case is quickly processed by the Home Office.  It is used for approximately one-fifth of people claiming asylum in the UK. 

The Judge, while not finding that the system itself was unlawful, declared that the following elements of it were unfair:
            - The screening process for, and safeguards once in, DFT do not operate effectively to ensure that vulnerable people are not wrongly processed on the DFT.
            - There is an unjustifiable delay in providing lawyers to people in detention and consequently ‘…the DFT as operated carries an unacceptably high risk of unfairness.’
            - There are insufficient safeguards for victims of torture and sexual violence.

For further information please see coverage from The Independent newspaper here.
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Disability Discrimination
  • ‘Severe obesity can be a disability’ -  A-G Jaaskinen
A-G’s opinion in Case C-354/12 Karsten Kaltoft v Billund Kommun
The Advocate-General of the European Court of Justice (ECJ) has issued a preliminary ruling on a case involving a severely obese Danish childminder who was dismissed from his employment allegedly because of his obesity. 

The ECJ has been asked to rule on whether EU law forbade discrimination on the grounds of obesity and whether obesity could be considered a disability.  The Advocate-General, who advises the ECJ, found that there is no stand-alone prohibition on discrimination on grounds of obesity in EU law.  However, he concluded that very severe obesity (BMI of more than 40) could be classified as a disability if it ‘……plainly hinders participation in professional life.’

His opinion will now be considered by the ECJ before a final ruling is handed down. 

If the ECJ follows his opinion then it could mean that employers will have to make reasonable efforts to accommodate severely obese employees in the work place.  For more information on the type of support employers may be expected to provide please click here.

Local Developments

LGBT Law
  • Advocate-General rules France’s MSM lifetime blood ban is unjustifiable. 
A-G’s opinion on case C-528/13 Geoffrey Leger v French Blood Agency
Another Advocate-General’s opinion, which is particularly relevant to local government, is that of A-G Mengozzi in a French case involving a lifetime ban on gay men donating blood.

A-G Mengozzi opined that France’s lifetime ban is not justifiable stating that it was too broad and generic.  He said that consideration needed to be given to individual sexual behaviour, and not simply sexual orientation,                                                       
‘By definitively excluding every man who has had, or has, sexual relations with another man from giving blood, the French legislation introduces obvious indirect discrimination on the combined bases of gender (men) and of sexual orientation (homosexuality and bisexuality).’

While A-G Mengozzi's opinion is not binding on the ECJ, the positions of advocate generals are frequently adopted by the court. If the justices back his opinion, France could be forced to drop its ban.

In relation to the position here, the Health Minister has lodged an appeal of the decision of the High Court last year which ruled that Northern Ireland’s current ban on gay men giving blood was ‘irrational’.

Click here to read an article by Pink News on the French case.
  • Equality Commission intervenes in dispute involving a Christian-owed bakery.
The Equality Commission for Northern Ireland has granted assistance to a complainant to pursue a challenge against a bakery who refused to bake a cake bearing the slogan ‘Support gay marriage.’
The Christian owner of the bakery said that he considered the slogan on the cake to be ‘..at odds with what the Bible teaches’ and stressed that this was not the first time the company had refused a customer’s order,                                                        
‘In the past, we've declined several orders which have contained pornographic images and offensive, foul language.’

The opinion of Gavin Boyd, from The Rainbow Project, one of our stakeholders, can be accessed here.

Education Law
  • High Court dismisses Newtownbreda High School’s  judicial review challenge.
By way of an update on this case, which was featured in last month’s Newsletter, on 25th June the High Court dismissed an application to stop the amalgamation of Newtownbreda and Knockbreda High Schools.

Full reasons for rejecting the challenge to the Education Minister’s plans, to close both schools and build a new one, will be published by the NI Courts Service in due course. 

The dismissal paved the way for the Education Minister to formally announce the planned new build which he did by statement issued on 3rd July. 

In other news the Education Minister has rejected allegations of ‘sectarianism’ in closing a state secondary school in Fermanagh while keeping a catholic school in the county open.  For further information click here.

Prison Law
  • Former prisoner loses challenge over full body strip searches
In the matter of an application by Brendan Conway for Judicial Review (2014) NICA 51
The legal challenge over the policy of full body searching of prisoners in Maghaberry was considered by the Court of Appeal on 30th June 2014. 

Previous High Court decisions had ruled that the prison’s policy was proportionate and lawful.  The case came before the Court of Appeal for a decision on whether an inflexible approach was taken by prison authorities in respect of full body searching of non-compliant prisoners.

The Court noted that the general policy on full body searches did include a provision for a proportionate exception.  The Court cited individual incidents of prisoners who were not subject to such searches even though they did not fall within the strict wording of the exception provision. 

The Court concluded that it had not been established that there was a ‘total inflexibility on the part of the Prison Service in the operation of the policy.’

Click here for coverage from The Belfast Telegraph. 

Another case involving prisoners’ rights is that concerning voting in the Scottish Independence Referendum.  Two British nationals, both serving life sentences, alleged that provisions prohibiting prisoner voting in the forthcoming Referendum breach their human rights.  Their challenge hinged on repeated rulings by ECtHR that the UK’s ban on inmates voting in elections is a breach of their convention rights. 

Their case was heard before the Supreme Court on 24th July.  The Supreme Court followed earlier rulings and upheld that European Court rulings did not include referendums, and were limited to elections.  The Supreme Court has not yet issued a detailed ruling.  For further reading click here for an article from the BBC.
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PILS Event

The PILS Project is holding a roundtable event on the topic of Protective Costs Orders.  The event will take place in the afternoon of Friday 19th September.  Time and venue to be confirmed.  To register please email development@pilsni.org
 
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 development@pilsni.org to request an application form.

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