Public Interest Litigation Update:
22nd June 2011
Welcome to the PILS Project's bi-weekly Public Interest Litigation Update. The Update provides you with information on current public interest cases, judgments, news and events.
Why not forward the PIL Update on to others you think would be interested to hear about the latest public interest cases, judgments, news and events?
New resources on the PILS Project website
The following documents have been added to the resources page on our website:
The Role of NGOs in Public Interest Litigation by Michael Farrell, Senior Solicitor with the Free Legal Advice Centres (FLAC).
Deconstructing the Law’s Hostility to Public Interest Litigation by The Honorable Michael Kirby AC CMG, published in the Law Quarterly Review, 2011.
Judicial Review: An Overview by David Scoffield BL.
Strategic Interventions in Public Interest Litigation: Practice and Procedure by Dr. Tony McGleenan BL.
Third Party Interventions in Public Interest Litigation by Fiona Doherty BL.
Overview of Freedom of Information Requests, the Data Protection Act and Environmental Information Regulations by Catherine Vint, Senior Policy Officer at the Information Commissioner’s Office in Belfast.
Health, menthal health and Social care
London Borough of Hillingdon v Neary & Anor EWHC 1377
Young man with autism detained unlawfully for almost a year
The Court of Protection in England has ruled that a young man with autism and learning difficulties was detained unlawfully for almost a year under the Mental Capacity Act (2005) in violation of Article 8 of European Convention on Human Rights (right to respect for privacy and family life).
An analysis on the UK Human Rights Blog by Alasdair Henderson defines the judgment as a “landmark decision on the use of deprivation of liberty (“DOL”) authorisations in respect of individuals without full legal and mental capacity”. The Equality and Human Rights Commission intervened in the case.
The Public Interest Law Alliance (PILA) has posted an overview of news stories, reports and analyses regarding the recent Panorama TV programme which highlighted the abuse of older people in a nursing home in England and a number of other cases and developments related to this issue. The UK Human Rights post has also published an article examining the human rights angle on this issue
Spotlight on the abuse of older people in nursing homes
The Equality and Human Rights Commission in England have made public a number of documents used and prepared for strategic interventions they have made in the courts in cases raising issues of mental health, capacity and human rights. Upon request the Commission provided the documents to the writer of The Small Places blog relating to P & Q v Surrey County Council,A Local Authority v A (A Child) & Anor, RP v UK  and Robert Seal v UK . Links to the documents and a discussion of their content can be found here.
EHRC litigation on mental health, mental capacity and human rights
An insurance company are challenging a Scottish law that permits a certain class of sufferers of Asbestosis to claim damages against their employers. The law was passed to counteract a 2008 House of Lords ruling that asymptomatic pleural plaques did not constitute actionable damage, thereby denying the entitlement of sufferers to sue their employers for compensation. Although a decision was taken not to enact a similar law in England and Wales, a Northern Ireland Damages (Asbestos - related Conditions) Bill 10/10 was recently passed by the Assembly and received Royal Assent yesterday (21.06.11).
Supreme Court challenge to law providing damages for Asbestosis
The allegations before the Supreme Court are that the law is outside of the legislative competence of the Scottish Parliament because it breached the insurers’ right to peaceful enjoyment of their possessions under ECHR Article 1 of Protocol 1 and also that the court should strike down the 2009 Act on the common law grounds that it was an unreasonable, arbitrary and irrational exercise of the legislative power.
Read the full case preview on the UK Supreme Court blog here which highlights the importance of the case in examining how wide a margin of discretion the Court will be prepared to afford a devolved legislature when applying the concepts of proportionality and rationality in the light of the Convention. Concerns as to the general approach of the Supreme Court in this area have led both the Attorney General for Northern Ireland and the First Minister for Wales to intervene.
Sinclair Collins v Secretary of State for Health EWCA Civ 437
Ban on cigarette machines upheld
A government ban on cigarette machines has been upheld as lawful in the Court of Appeal by a majority of 2:1. The court rejected the argument that the ban is a disproportionate means of achieving the aim of stopping children from taking up smoking.
A post by David Hart QC on the UK Human Rights Blog discusses the dissenting opinion of Laws LJ which could give rise to an appeal to the Supreme Court, and the interesting discussion in the judgment around the application of the margin of appreciation and proportionality under EU law and the Human Rights Act.
Re E (Children)  UKSC 84
Supreme Court rules on international child abduction case
The Supreme Court has dismissed an appeal from a British mother who brought her two children from their home in Norway to live in England without the consent or knowledge of their Norwegian father. The mother was appealing a decision that the children should be returned to Norway to have their futures decided there.
The Court was required to balance the best interests of the child requirement implied under Article 8 of the European Convention and the controls on child abduction under the Hague Convention (1980). For further information read the Supreme Court’s summaryof the judgment here, an overviewof the case by barrister Jacqueline Renton and an analysisby Rosalind English on the UK Human Rights Blog.
SG v St Gregory’s Catholic Science College  EWHC 1452
School’s ban on ‘cornrows’ found to be discriminatory
The High Court has ruled that a school’s ban on pupils wearing cornrows (a traditional African hairstyle) is indirectly discriminatory on the grounds of race.
The court acknowledged the legitimacy of the school’s claim that the ban was aimed at preventing a ‘gang culture’ mentality that may be encouraged by such hairstyles but ruled that given the cultural and intergenerational values associated with the hairstyle the boy in this case was placed at a ‘particular disadvantage’ to other children in the school. The school had also failed to take into account issues of race discrimination (as required under the Equality Act) when making the decision.
An analysis on the Education Law Blog, here, highlights the reference in the judgment to family and social customs often forming a “part of ethnicity” within the scope of race discrimination legislation. Read also an analysis of the case by Adam Wagner on the UK Human Rights Blog who acknowledges the case as one of the first high profile cases taken under the new public sector equality duty under s.149 of the Equality Act 2010.
R (On the application of E and Ors) v The Director of Public Prosecutions  EWHC 1465 (Admin)
Court rules on the prosecution of children for sexual abuse
The High Court has quashed the decision of the Director of Public Prosecutions (DPP) to prosecute a 14 year old girl for the sexual abuse of her younger siblings. The abuse had been recorded and the video available on the internet but the girl claimed she had been groomed and coerced into it by someone she had met on the internet.
The court did not accept the argument that the DPP’s guidance on this issue was unlawful or that it failed to have sufficient regard to the State’s obligations under international law, including the UN Convention on the Rights of the Child (even if they were binding in domestic courts). The court did, however, accept the claim that the decision-making process in this case was unlawful because all relevant considerations (set out in the guidance) had not been ( or could not be shown to have been) taken into account. The court declined to decide on the issue as to whether a decision to prosecute, or not to prosecute, could be capable of engaging a person’s rights under the Human Rights Act.
An analysis of the case on the UK Human Rights blog, which can be read here, argues that the case highlights that i) international treaty obligations, while not binding, may be used in domestic courts to support a favourable interpretation of a domestic law, ii) decision-makers must being able to provide detailed reasoning for the decisions they have made, and iii) the question of whether decisions on prosecution engage human rights has not yet been completely answered by the courts.
R and H v UK, ECtHR (Application no.35348/06)
The rights of parents and children in adoption
This case before the European Court of Human Rights was brought by the biological parents of a child from Northern Ireland who challenged the decision of the local heath trust to put their child up for adoption without their consent by way of a ‘Freeing Order’. The Court found that while the Freeing Order did interfere with the parents’ right to family life under ECHR Article 8, it pursued a legitimate aim of protecting the child’s interests and struck a fair balance between the competing interests at stake.
Read an analysis of the case on the UK Human Rights Blog here and an article in The Detail on the current rate and use of Freeing Orders in Northern Ireland here.
Aoife Daly of Trinity College Dublin has written an article on the rights of children in legal proceedings, entitled 'The right of children to be heard in civil proceedings and the emerging law of the European Court of Human Rights'. It was published in the third issue of volume 15 (2011) of the International Journal of Human Rights.
The right of children to be heard in legal proceedings
Freedom of Information
Keith Anderson v Information Commissioner  NIQB 44
Failure to disclose information on loyalist parade not a breach of freedom of expression
The High Court in Belfast has ruled that the Information Commissioner’s decision to not disclose all information relating to complaints about the conduct of band members at a loyalist parade (including and in particular those made in confidence) was lawful.
The judge rejected the argument that the band needed all such information in order to respond to the complaints and allegations of misconduct (and thereby maximise their chances of obtaining permission for the next years’ parade) and that the Commissioner’s failure to provide it was in breach of ECHR Article 11 (freedom of assembly). He ruled that because the parade had actually taken place there was no interference with bands’ right to freedom of assembly. The judge further reasoned that even if Article 11 was engaged, there is no authority in domestic law or under the European Convention to support the proposition that Article 11 (or indeed Article 10 – the right to freedom of expression and to receive and impart information) gives any right to the provision of information provided in confidence.
Department of Health, R (on the application of) v Information Commissioner  EWHC 1430 (Admin) (20 April 2011)
Abortion statistics must be made public
The High Court ruled in April that the Department of Health in England must disclose late term abortion statistics under freedom of information law. The judgment in his case has now been published. See 11 KBW’s Panaopticon Blog for a summarywhich may be of use to those interested in the concept and extent of ‘personal data’ under s. 40 FOIA and the DPA – especially when looking at the grey area of statistics or other anonymous data which is rooted in or derived from other data which is more overtly personal.
Immigration, Asylum and deportation
Kambadzi v Secretary of State for the Home Department  UKSC 23
Failure to follow immigration policy means detention was unlawful
The Supreme Court has reasserted the principle that the Secretary of State (and all public authorities) must follow published policy. In this case the detention of an immigration detainee was found to be unlawful because his detention had not been reviewed regularly, in line with immigration policy.
An analysis of the case on the UK Supreme Court blog highlights the significance of the ruling in reaffirming the principle that an individual’s liberty can only be interfered with on lawful grounds and never arbitrarily, and that the findings with respect to the effect of breaches of policy is likely to have wider implications in other areas of public law.
A post on the UK Human Rights Blog, meanwhile, highlights the fact that all public law errors are unlawful, and capable of being remedied, but the question for the court in any given case is whether or not the error impacts upon the act which is actually being challenged – in this case the act of detention.
ZZ v Home Office  EWCA Civ 440
EU Court of Justice to rule on lawfulness of terrorism immigration proceedings
The Court of Appeal has referred the case of ZZ v Home Office to the Court of Justice of the European Union asking whether the UK’s terrorism immigration proceedings are compatible with European law. Specifically, the court will be asked whether EU citizens are entitled under EU law to see the “essence of the grounds against them“ when facing exclusion in the name of national security.
The UK Human Rights Blog has previously reported on a different case that found that Article 6 of the European Convention on Human Rights does not require an “irreducible minimum of information” (akin to the ‘essence of the grounds’) against someone to be provided where they are to be excluded or deported on the grounds of national security. See also a Guardian article on the issue here.
RU (Bangladesh v Secretary of State  EWCA Civ 651
The role of deterrence in deciding whether to deport foreign criminals
This case looked at how the First-tier Tribunal should consider and weigh the issue of deterrence when deciding whether to deport a single offender, including the ‘public interest’ aspect of the process. Read an analysis on the UK Human Rights Blog here and a case note by the Joint Council for the Welfare of Immigrants here.
Other public interest cases
R (Imran Bashir) v. The Independent Adjudicator, HMP Ryehill and the Secretary of State for Justice  EWHC 1108
Freedom of religion continues in prison
The High Court has ruled that disciplining a Muslim man for failing to give a urine sample while he was fasting was in breach of his right under Article 9 of the European Convention to freedom of religion. Because the man had been fasting for three days in spiritual preparation for his appeal hearing he was unable to provide a large enough sample to use in a drugs test, and he refused to drink water during until the fast was over. Read an overview of the case on the UK Human Rights Blog here.
An article on the Education Law Blog summarises a number of recent cases which demonstrate the approach of the courts to consultation obligations.
Challenges on consultation obligations
Khodorkovskiy v Russia (Application no. 5829/04)
Placing an accused in a cage during trial constitutes degrading treatment
The European Court of Human Rights has ruled that placing an accused in a cage during trial constitutes degrading treatment under Article 3 of the European Convention, where the person is not predisposed to violence and there are no serious security threats.
In the case in question the accused was placed for the duration of the trial in a metal cage, was handcuffed, guarded by armed men and was visible to the public and media in this way. The court found this treatment to be humiliating for the accused and not justified and therefore in violation of Article 3.
The Court noted that the practice of placing an accused in a “special compartment” continues to exist in numerous European countries (not including the UK), such a glass compartment in Spain and France. This practice has previously been considered within the context of the presumption of innocence but more recently has been examined within the context of Article 3.
Walmart v Dukes
Largest-ever class action in the US against Walmart dismissed by Supreme Court
The US Supreme Court has narrowly (by a majority of 5-4) dismissed the country’s largest ever class action law suit by ruling that an estimated 1 million female Walmart employees cannot be considered a “class” in alleging company-wide sex discrimination in terms of payment and promotions. The question of “class” refers to the group of people taking the case and therefore who is entitled to a remedy, including compensation.
It is claimed that the judgment will also make it more difficult for class action law suits to be successful in future by setting higher barriers for bringing several types of nationwide class actions against a large company with many branches.
For further information see articles on the Huffington Post, New York Timesand the Guardian.
Pro Bono Work
The Thomas Reuters Foundation has launched a new free legal advice, information and news service for women; TrustLaw Women. The service aims to spread the culture and practice of pro bono work around the world, connecting those who need legal assistance with lawyers willing to work at no cost, offer a one-stop shop for news and information on good governance and anti-corruption issues and offer a similar one-stop shop on women’s rights issues.
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 an interesting 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 firstname.lastname@example.org.
New free legal advice service for women
Legislative and policy updates
Earlier this month a change to the law of defence to a murder charge came into force in Northern Ireland, which will entitle domestic violence victims to claim their were forced to kill their abuser in their defence. They must now prove they were motivated by “words and conduct” which left them “seriously wronged”. It replaces the defence of provocation with one of “loss of control” caused by a fear of serious violence.
Law on defence to murder charge changes
See the Coroners and Justice Act 2009 here.
A consultation has been launched on a draft Practice Note on the use of ‘McKenzie’ friends in Northern Ireland’s courts. These are lay advisors who can assist individuals who are unrepresented in court and who may exceptionally at the discretion of the judge be given a right of audience. Read the draft Practice Note here. The closing date for responses is 30th June 2011.
Consultation on Practice Note in relation to ‘McKenzie Friends’
The Department for Work and Pensions has published a Green Paper setting out the Coalition Government's proposals for future pension reform, which the Department for Social Development here in Northern Ireland has issued for responses. The Green Paper is available to view from www.dsdni.gov.uk/index/consultations.
Consultation on the reform of pensions
The Department for Social Development has stated that issuing the paper in Northern Ireland does not signal the DSD Minister's endorsement of the proposals. Decisions on further pension reform in Northern Ireland will be a matter for a future Executive and Assembly.
Other PIL news
A report published by the Institute for Conflict Research for the Joseph Rowntree Foundation has found that migrants in Northern Ireland are being severely exploited and forced into labour with appalling conditions. The research found such forced labour is often due to the vulnerability of workers with poor English language skills, limited access to social networks and lack of poor local knowledge.
Report finds modern day slavery in NI
The Children’s Society have argued that welfare reforms passed in Parliament last week could leave an estimated 100,000 children with disabilities in poverty by cutting £1400 annually from their parent’s benefits.
‘Reforms will leave children and adults with disabilities in poverty’
Meanwhile, 670,000 social housing tenants are anticipated to lose £676 annually if they have a spare room in their house because their homes will be deemed to be too large for their needs. An estimated two thirds of these people have a disability according to the government’s impact assessment, reported on the Guardian here.
The Joint Committee on Human Rights has issued a report on the Terrorism Act (Remedial) Order2011 which was enacted in March 2011 as a temporary measure to bring the stop and search powers of the police in line with the requirements of the European Convention following the European Court’s judgment in Gillan & Quiton v UK. The report highlights that while the Order tightens the definition of the power and improves safeguards it still does not go far enough to ensure compliance with the Convention.
JCHR finds new stop and search powers still not ECHR compliant
A post on the Human Rights in Ireland Blog looks at the continuing racial effect of counter-terrorism stop and search powers, while a recent report by the Equality and Human Rights Commission examined the impact of counter-terrorism measures on Muslim communities.
A series of posts on the Law and Lawyers Blog explain the law and legal system of the UK.
“Explaining our law and legal system”
- Post 1 talks about legal personnel; the role of solicitors, barristers, judges etc.;
- Post 2 examines the court structure, including the County, Crown and Magistrates Courts, tribunals and other courts;
- Post 3 focuses on the role and appointment of the judiciary;
- Post 4 looks at juries – a particularly timely piece given the recent 8 month prison sentence handed down to a juror who contacted a defendant in an on-going case via facebook (more here);
- Post 5 discusses the role of Magistrates.
Gordon Anthony posted this article on the Constitutional Law blog (here) in the wake of last month’s Supreme Court ruling in Re McCaughey .
“Article 2 ECHR, controversial deaths and the “mirror principle”’
See also here a recent analysis of the case on the UK Human Rights blog.
Online news website, The Detail has published the following articles based on an interview with the Attorney General for Northern Ireland, John Larkin QC:
The Detail on inquests, the PPS and the Attorney General in Northern Ireland
- ‘Inquests will be "front and centre" in dealing with the past - Attorney General’
- ‘Larkin backs “open” PPS and courts’
- “A satisfactory relationship with Government” – the Attorney General on his first year in Office.
The UN Human Rights Council has passed its first ever resolution on discrimination against LGBT people through the commissioning of a study of discriminatory laws, practices and violence against individuals based on their sexual orientation, including an examination as to how international human rights laws can be used to address such violence and discrimination.
First UN Resolution condemning discrimination against gay people
In a lecture at Gresham College Baroness Hale examined the concept and application of the European Convention on Human Rights as a ‘beanstalk’ rather than a ‘living instrument’. An article on the UK Human Rights Blog by Rosalind English examines the failure of the lecture to address the ‘real juggernaut’ in the room: “the widely cherished myth that rights are universal moral attributes that purport to be independent of circumstance or politics”.
Baroness Hale lecture – ‘Beanstalk or living instrument’ How tall can the ECHR grow?
Jobs and Events
The Law Centre, Attorney General’s Office and University of Ulster School of Law have jointly organised a half day conference on judicial independence on the 24th June 2011. Speakers will include the Lord Chief Justice, Sir Declan Morgan, Ann Power, Judge of the European Court of Human Rights and Attorney General, John Larkin QC. Contact Ann Cartwright for more information on email@example.com.
Conference on Judicial Independence (24.06.11)
NICEM’s Annual Human Rights Conference will take place on the 1st July 2011 in the Wellington Park Hotel, Belfast. Topics will include judicial review and public interest law in NI and GB over the last year, austerity cuts and economic and social rights, the single equality bill for NI, and the Bill of Rights for Northern Ireland. Click here for further information.
NICEM’s Annual Human Rights Conference (01.07.11)