Public Interest Litigation Update:

21st July 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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New resources on the PILS Project website

The following documents have been added to the resources pageon our website:
  •  PILS Project Conference 2010 Opening Address-  Transcript of the opening address provided by The Lord Chief Justice for Northern Ireland, The Right Honourable Sir Declan Morgan, at the PILS Project’s 2010 conference Developing Public Interest Litigation: the International Experience.
  • Keynote address - Transcript of keynote address delivered by The Honourable Michael Kirby AC CMG, Australia’s longest serving High Court judge and former president of the International Commission of Jurists, at the PILS Project conference 2010. 
  • Public Interest Litigation: the South African Experience- Transcript of presentation provided by Dr. Ann Skelton, Centre for Child Law, University of Pretoria, at the PILS Project’s 2010 conference.
  • Public Interest Litigation: the US Experience - Transcript of presentation provided by Brad Seligman, Impact Fund, US, at the PILS Project’s 2010 conference.
  • Judicial Review of the Year in Great Britain by Catherine Donnelly, Barrister, Dublin and Blackstone Chambers, London, Fellow, Trinity College, Dublin.  Paper presented at NICEM’s Annual Human Rights Conference, July 2011.
  • Judicial Review Update by Gordon Anthony, Professor of Public Law, Queens University Belfast.  Paper presented at NICEM’s Annual Human Rights Conference, July 2011.

Budget cuts, legal aid and welfare reform
  • Disability Alliance seek to challenge DLA changes
The Disability Alliance in England is claiming that the abolition of Disability Living Allowance (DLA), to be replaced by the Personal Independence Payment, will not provide enough support for those currently on DLA.  In a ‘letter of claim’ to the Department for Work and Pensions they argue that the Department has failed to comply with its consultation obligations and also its obligations under the Equality Act.  Read the Disability Alliance press release here and the letter of claim here.
  •  NICVA gathering information on funding cuts in NI
The Northern Ireland Council for Voluntary Action is gathering information on government funding cuts imposed on the community and voluntary sector in Northern Ireland.  To submit information on cuts to your organisation and find out which other organisations have experienced cuts visit the Cuts Watch website.
  •   Welfare reforms may leave 40,000 families homeless
A news report has reported that a Coalition government minister warned the Prime Minister that cuts to welfare risk leaving 40,000 families homeless.
  •  Reports find recession and welfare reform hits women hardest
A report published by the Women’s Resource and Development Agency has found that the recession and Government budget cuts are driving more women in Northern Ireland out of the workplace and into the home, thereby reducing gains in equality at work.  Read the WRDA press release here and the full report here.
 
Another report, this time by the Fawcett Society who launched an unsuccessful challenge to the government budget last year, has found that single mothers will be hit hardest by welfare reforms.  They also argue that government claims that they cannot measure the impact of its tax and benefits policies on women is not true.  Read more here.
  •   “What income do people need to afford an acceptable living standard?”
The Joseph Rowntree Foundation has published new research entitled “What income do people need to afford an acceptable living standard?”  Read the report here.
  •  UK legal aid cuts confirmed in new Bill
The much publicised proposals to cut legal aid in England and Wales have been confirmed, despite widespread opposition, in the Legal Aid, Sentencing and Offenders Bill.  The Law Society of England and Wales has called the Bill “the single biggest attack on state-funded legal advice for the poor and vulnerable since the legal aid system was introduced”.  Read the UK Human Rights Blog’s overview of the Bill and the responses to it here.  An article in the Guardian argues that the cuts will not save money in the long run and another predicts that it will create a melt-down in the court system.  Lady Hale recently commented on the proposals and said that the legal aid cuts will have a disproportionate effect upon the poorest and most vulnerable in society“.

Heathcare, community care and mental health
  • Lawful to substitute incontinence pads for carer for older woman
R (on the application of McDonald) (Appellant) v Royal Borough of Kensington and Chelsea (Respondent)[2011] UKSC 33.
 
The Supreme Court has ruled that it was lawful for a local authority to amend an older woman’s care package, by substituting her night time carer with provision of incontinence pads or absorbent sheets despite the fact that the woman is not incontinent. They found that there was no breach of the woman’s ECHR Art 8 rights, the right to respect for private and family life, and even if Art 8 was engaged it would be justified on the ground that it was proportionate and necessary for the economic well-being of the local authority. They also found the decision could not be characterised as a “practice, policy or procedure” for the purposes of the protection of the Disability Discrimination Act 1995.  Read the press summary of the case here.
 
In her (sole) dissenting judgment Lady Hale drew attention to the third party intervention by Age UK in the case which addressed an important point of law not adequately addressed by the main parties in the case; the proper interpretation and application of section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (Alf Morris's Act).  She agreed with Age UK’s argument that it was irrational for the local authority to characterise the woman as having a need different from the one she in fact has, i.e. to  provide incontinence pads for a person who is continent. 
 
The Equality and Human Rights Commission has argued that the decision will give local authorities more discretion in deciding how to meet people’s home care needs and will make it easier for them to justify withdrawing care.  Age UK’s post on The Small Places blog discusses the Supreme Court’s judgment and considers its impact on the concept of dignity.  It argues that there is “a significant difference in terms of dignity between choosing to use incontinence pads, and having them forced upon one when one is - additionally - continent.  Asked why most people would be averse to it, it is hard to find a word that better fits than 'indignity'.”
 
The judgment coincides with a new reportlaunched by Age NI entitled "Would you have sandwiches for your tea every night? - Older people's views on social care in Northern Ireland".  The report, based on direct consultations with older people, highlights the importance of valuing the needs of individuals over finances, and ensuring compassion, empathy, dignity and respect are central to the conduct and training of social care staff.
  •  Articles on the use of lawful restraint and deprivation of liberty
A series of three posts on The Small Places blog looks at the lawful use of restraint, and its relationship to deprivation of liberty.  It relates to the rulings in C v A Local Authority (2011) (Re C) and Cheshire West and Chester Council v P (2011) (Re P). The first post was on the importance of recognising restraint where it is occurring. The second post was on the expanded legal guidance set down by the Court of Protection on the use of restraint under the Mental Capacity Act (MCA).  The third postrelates to the ongoing uncertainty over the meaning of ‘deprivation of liberty’.
 
According to the post the ruling in Re C related to an eighteen year old man with learning disabilities and autism in a residential school. The judgment focused on the school’s use of seclusion as a response to his ‘challenging behaviour’ and his nakedness, as he would often remove his clothing. The ruling in Re P related to a thirty-eight year old man with Down’s syndrome and cerebral palsy, in a small residential care setting [1]. The judgment particularly focused on the use of restraint and restrictive measures to address P’s incontinence, and his dangerous practice of putting pieces of torn up, soiled, incontinence pad in his mouth.

Other recent posts on The Small Places blog include: “Is deprivation of liberty more likely to go unspotted for privately funded care home residents? and “The meaning of 'public authority' and Article 5 - just a lawyer's puzzle?”

  •  IVF children’s claim for damages dismissed
A and B by C (their mother and next friend) v A. Health and Social Services Trust[2011] NICA 28.
 
The Court of Appeal has dismissed a negligence claim for damages brought by two children who were born as a result of IVF after the local trust mixed up sperm donor samples causing them to be born with a darker skin tone than their Caucasian parents. 
 
Upholding the rejection of the claim by the High Court, Lord Justice Girvan reasoned that no damage, injury or compensatable wrong had been pointed out that resulted from the error.  It was argued that the children had been born healthy and having a different skin colour from their parents cannot sensibly be regarded as damage or disability.  The fact that the children had been subjected to abusive comments was the result of “boorish and unacceptable behaviour of others” but did not mean the children had suffered disability or damage in law.  Read the court summary of the judgment here.


'Closed material procedure'
  • Supreme Court rules that closed procedure in employment tribunal is lawful
Home Office (Appellant) v Tariq (Respondent); Home Office (Respondent) v Tariq (Appellant) [2011] UKSC 35
 
The Supreme Court has ruled that it did not breach ECHR Article 6 (the right to a fair trial) to exclude an individual from certain parts of employment tribunal proceedings on the grounds of national security, known as “closed material procedure”.  The majority of the Court ruled that it was necessary and provided sufficient safeguards to the individual.  Lord Kerr dissented.
 
The Court also overruled the Court of Appeal’s decision that ECHR Article 6 required the individual “to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively”.  They reasoned that this requirement, known as ‘gisting’, applied to cases involving the deprivation of liberty but not of livelihood, as was at stake in this case.  Read the press summary here and an analysis on the UK Human Rights Blog here.
  •  Supreme Court rules that closed procedure in civil damages claim cannot be ordered by courts
Al Rawi and others (Respondents) (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34 
 
The Supreme Court ruled during the same week as the Tariq case (mentioned above) that the courts have no inherent power to order a ‘closed material procedure’ in a civil claim for damages taken by former Guantanamo Bay detainees who allege that they were tortured and were subject to extraordinary rendition by foreign authorities.  In contrast to the use of the procedure in Tariq there was no statutory basis for the closed procedure in the Al Rawi case.  The Supreme Court ruled that the courts have no power at common law (i.e. without specific legislative provision) to order a closed material procedure to replace public interest immunity procedures.
 
Read the press summary here, an analysis of the case on the UK Human Rights Blog here and another analysis on UKHRB explaining the reasoning behind the Court’s two different decisions on ‘closed material procedure’.


Immigration and asylum
  • European Court rules that the UK cannot deport Somali criminals
Sufi and Elmi v United Kingdom – 8319/07 [2011] ECHR 1045 (28 June 2011)
 
The European Court of Human Rights has ruled that it would be in breach of ECHR Art.3 (prohibition on torture, inhuman or degrading treatment) to deport two Somali nationals who were convicted of serious crimes in the UK.  The Court found the violent situation in Somalia to be so severe that it would pose a real risk of treatment that would breach Art.3. Read a full analysis of the cases in the UKHR blog here.
  •  No enhanced procedural safeguards needed in immigration appeals
IR (Sri Lanka) and Ors. V Secretary of State for the Home Department [2011] EWCA Civ 704
 
The Court of Appeal has ruled that there is no need for enhanced ECHR Art.5 or 6 procedural safeguards in Special Immigration Appeals Commission deportation/exclusion casesIt also found that the right to private and family life under Article 8 does not require that those challenging deportation and exclusion decisions on grounds of national security in proceeding before the Special Immigration Appeals Commission (SIAC) have to be given sufficient disclosure of the case against them to enable them to effectively instruct the special advocate representing their interests. Read a full analysis of the case on the UKHR blog here.
  •  UKBA consultation on reform of family migration
The UK Border Agency has published consultation proposals for reform of family migration. Main points include the introduction of a new definition of what a 'genuine and continuing relationship' is for couples, plans to makeit more lengthy and difficult for spouses and partners to apply for settlement, restrictions on other family member applying for settlement, new measures to tackle sham marriages and consideration of whether to restrict the right of appeal under family visits visas.

Read more analysis on the consultation document by the Migrant Rights Network  here  and here
.

LGBT cases
  • Articles on challenge to adoption laws that do not permit civil partners to adopt
 A number of recent articles in The Detail look at the context of the challenge that has been taken by the Northern Ireland Human Rights Commission to adoption laws in Northern Ireland which currently do not permit couples outside of marriage to adopt. Read  Where Stormont stalled the Commission stepped in’, How our politicians dealt with the issue’ and "We should be debating children’s rights not religious morality". 
  • ‘Outing’ of colleague at work was not discrimination
In this case the individual, Mr Grant, worked for the Land Registry where he was openly gay.  Upon moving to another office with a promotion he did not tell colleagues that he was gay, preferring to wait until he felt comfortable in his new office.  His old line manager mentioned in passing to his new line manager during a phone conversation that Mr Grant was gay and thereafter followed a number of other incidents.  The Court of Appeal referred in its judgment to the valuable submission of the Equality and Human Rights Commission, as to why it is important that gay persons should be able to reveal their sexual orientation on a confidential basis, and that to break that confidence would be likely to involve a breach of Article 8 and might, depending on the circumstances, also involve sexual orientation discrimination. However, the court found that as his manager had no ill purpose there could be no direct discrimination or harassment and the fact that Mr Grant had been “out” in his previous office was a highly significant factor.
 
Read analysis of the judgment on the Head of Legal blog here and the Employment Law Update here.


Education
  • Supreme Court rules on human rights in disciplinary proceedings at work
R (on the application of G) (Respondent) v The Governors of X School (Appellant)[2011] UKSC 30

The UKHR blog reports that the Supreme Court has ruled unanimously that Article 6 of the European Convention on Human Rights, the right to a fair trial, is engaged in internal disciplinary proceedings if they will have a "substantial influence" on future proceedings which are likely to determine a civil right. Read the Court summary here, further analysis on the Education Law Blog here and a useful summary of the case in the PILA bulletin here.

  • Permission granted to challenge tuition fees rise in England
Permission has been granted by the High Court for two sixth formers in England to challenge the lawfulness of the government’s decision to allow universities to raise tuition fees.  Read a news report on the case here and a statement on the case here by Public Interest Lawyers who are representing the students. 
 
Meanwhile, in Northern Ireland the First Minister and Deputy First Minister have confirmed that there will be no rise in tuition fees for students starting courses in 2012.


Other public interest cases
  • ECHR applies in Iraq and UK failed in its duties to Iraqi citizens
Al-Skeini v. United Kingdom, ECHR (Application no. 55721/07)
and
Al-Jedda v. the UK, ECHR (Application No. 27021/08)
 
The European Court of Human Rights has ruled that the UK had liability under the European Convention for the alleged deaths and detention of individuals in Iraq during its military campaign there. 
 
In the first case, Al-Skeini, which concerned civilians killed during British security operations in Iraq, the Court found that the UK had failed to  conduct an independent and effective investigation into the deaths of the relatives of five of the six applicants, in violation of Article 2 (right to life) of the Convention.  The second case was about the internment of an Iraqi for more than three years in a detention centre in Basrah which was run by British forces.  The Court in this case found a violation of Article 5 (1) (right to liberty and security) of the European Convention.
 
According to JUSTICE the case is ground-breaking in its confirmation that the UK’s human rights obligations may in certain circumstances extend beyond UK territory where British officials exercise ‘control and authority’ over foreign nationals.
 
Posts by Adam Wagner (here and here) on the UK Human Rights Blog argue that the significance of the judgment is difficult to over-estimate and highlights the criticisms levelled at the UK in the judgment; “Being bountiful with military imperialism but bashful of the stigma of human rights imperialism, sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy…those who export war ought to see to the parallel export of guarantees against the atrocities of war. And then, if necessary, bear with some fortitude the opprobrium of being labelled human rights imperialists.”  Also on the UKHR blog Alasdair Henderson takes a measured look at what the rulings mean and argues that the judgment is not quite the radical breakthrough it first appeared to be.
 
For further information and analysis of the cases see Fiona de Londras’ analysis on the Human Rights in Ireland blog here, William Schabas critique here and comments by Interights who submitted written comments to the Court alongside a range of other human rights organisations here.
  • Upper Tribunal decisions amenable to judicial review
R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent); R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) [2011] UKSC 28, 22/6/2011
and
Eba (Respondent) v Advocate General for Scotland (Appellant) (Scotland)  [2011] UKSC 29
 
The Supreme Court has held that unappealable decisions of the Upper Tribunal (UT) may be judicially reviewed by the High Court if they raise an important principle or some other compelling reason why the case should be reviewed. Rosalind English BL has posted an analysis of the three cases on this issue recently decided upon by the UK Supreme Court in which each of the applicants failed in an appeal to the first-tier tribunal and were refused permission to appeal to the Upper tribunal.  Each sought to judicially review the refusal of permission to appeal.
 
See also the UK Supreme Court Blog’s in-depth analysis of the case, which highlights the practical implications of the case for practitioners, judges, applicants and others involved in tribunal work.
  •  Forced Marriage Protection Order lawful
 The Court of Appeal in Northern Ireland has dismissed an appeal from the mother of two girls, currently aged 14 and 15, who are the subject of Forced Marriage Protection Orders as a result of their parents’ alleged plans to send them to Pakistan to be forcibly married. The Court rejected the mother’s argument that the Orders breached the girls’ Article 8 rights to respect for private and family life and Art.12 rights to marry. The Court reasoned: “there can be no doubt that the protection of individuals, particularly those of tender years, from being compelled to participate in forced marriages is a legitimate aim”and found the Order to have been a proportionate means of achieving that aim.
 
Read the Court summary here. Read also a preview of an upcoming case at the UK Supreme Court which will look at the issue of government plans to discourage forced marriage.
  •  No stay in civil proceedings for man who is unable to talk
Proceeds of Crime Agency v Seamus Mullan [2011] NIQB 55
 
The High Court has dismissed the claim of a man to stay proceedings against him brought by the Serious Organised Crime Agency because a medical condition rendered him unable to talk and thereby participate in the proceedings and that to proceed would be in breach of Art.6 right to a fair trial. 
 
Mr Justice Treacy reasoned that while a party’s disability will inevitably impact on their effective participation in the trial process it does not follow that a fair hearing is not possible:  “If the court were to hold otherwise a very dangerous precedent would be established creating a class of persons under a disability who could not sue or be sued.” Read the court summary of the judgment here.
  • Permission granted to challenge criteria for security licence by doorman
It has been reported that an ex-prisoner released under the terms of the 1998 Act has been granted leave (permission) to challenge the criteria used in providing licences for those who seek to work in the security industry.  It is argued that the current criteria is irrational because it allows a convicted murderer to be considered for a permit before those jailed for lesser offences. The case also raises the issue of the expectations and position of those released under the Good Friday Agreement who have concurrent sentences.
  •  Summary of reasons must be given in planning decisions
RWE Npower Renewables Ltd v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin)
 
The High Court has ruled that planning inspectors must communicate any doubts about an applicant’s case to them to allow them to respond.  They must also explain reasons for their final decision in at least summary form.  According to David Hart QC’s analysis of the case on the UKHR blog, the judgment provided a good overview of current cases on the adequacy of reasoning in planning and non-planning cases.


Pro Bono Work
  • Getting the most out of pro bono
The Guardian Online recently hosted a live Q&A session on how legal professionals and community and voluntary groups can get the most out of pro bono work and relationships.  Read the full transcript here.
  •  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 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 info@pilsni.org.

Legislative and policy updates
  • Consultation on the reform of pension
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/index/consultations.

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
  • European Court Caselaw update
The latest Caselaw Update of the European Court of Human Rights is available here.
  •  Research on equality and human rights legislation and bodies in Northern Ireland
The Northern Ireland Assembly Research and Information Service has published research providing an overview of current equality and human rights legislation in Northern Ireland, including a comparative of European and international human rights and equality standards.
 
The Service has also published a research paper looking at the role and functions of local, national and international human rights and equality bodies.
  • EHRC seek to intervene in 4 European Court cases to support of religious freedom
The Equality and Human Rights Commission has announced that it is seeking to intervene in four cases at the European Court of Human Rights relating to religious freedom under ECHR Art.9.  The Commission intend to intervene in support of the four claimants who allege religious discrimination in the work place.  The Commission will argue that “judges have interpreted the law too narrowly in religion or belief discrimination claims”.  The applicants who each unsuccessfully claimed to have been discriminated against on the grounds of their religion in the domestic courts are:
 
- Nadia Eweida, a British Airways employee who was told to conceal or remover her silver cross on a necklace;
- Shirley Chaplin, a nurse who was moved into a desk job after also refusing to remove her cross on a necklace;
- Lillian Ladele, a registrar of births, deaths and marriages who resigned after the Council she was working for refused to give her permission not to officiate at the registration of civil partners;
- Gary McFarlane, a relationship counsellor for Relate who was sacked after he refused to provide counselling to same sex couples on sexual issues.
 
Read more on the UKHR Blog about the Commission’s decision here and their previous posts on the discrimination and freedom of religion here and here.  Read also a Guardian article arguing that the decision of the Commission is “beyond belief”.


Jobs and Events
  • Law Centre seeking Head of Legal Support Project and Development Officer
Law Centre NI has a position available for Head of their new Legal Support Project which will deliver pro bono legal work in employment and social security. A position as Development Officer with the Mental Health and Learning Disability Alliance, coordinated by the Law Centre, is also available.  Click herefor further information.
  •  Law Society of England & Wales: Human Rights Symposium  (21 &  22 October 2011)
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.
  •  Strategic litigation training on discrimination against same-sex families (20.11.11)
The International Lesbian, Gay, Bisexual, Trans and Inter-sex Association (ILGA) are holding a one day training session on litigation in the field of discrimination against same-sex families, in association with NELFA, the Network of European LGBT Families Associations.  The training will take place in Strasbourg on Sunday 20th November 2011 but the deadline to apply to participate is 20th August.  Click here for further information.

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