Public Interest Litigation Update:

31st January 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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Criminal Law
  • New anti-slavery Bill to be introduced into UK Parliament
The Home Secretary has announced she will introduce into Parliament a new anti-slavery bill. The purpose of the legislation is to increase the maximum penalties for offences from 14 years to life imprisonment. The legislation is also intended to bring together all the offences in the area of human trafficking into one place.
The draft bill will also create an anti-slavery commissioner, who will be responsible for reviewing the work of public bodies and holding them to account.

For more information on the legislation itself, please see here and here.
  • Men allegedly tortured by Saudi authorities cannot make a claim for compensation to Strasbourg
Jones and Others v UK Applications no’s. 34356/06 and 40528/06

In 2001 a number of bomb attacks took place in Saudi Arabia, including in the capital Riyadh. 4 UK nationals – Ron Jones, Alexander Mitchell, William Sampson and Leslie Walker, were arrested in relation to separate bomb attacks. All 4 claim that they were tortured over a significant period of time. Eventually Mr Jones signed a confession admitting his involvement in one of the incidents.

A Guardian investigation revealed that Mr Jones could not have carried out the bomb attack. Upon their release, the men started legal proceedings in the UK against Saudi Arabia, its officials and the individuals. However, their claims were dismissed as all parties had availed of state immunity.

The men took their cases to the European Court of Human Rights. The Court dismissed their claims. It stated that the granting of immunity was within recognised rules of international law and did not constitute a breach of the right to a fair trial under Article 6 of the Convention.

For further discussion, please see here.
  • Disclosure costs force prosecutors in England to abandon a criminal trial
A trial relating to offences of conspiracy to supply Class A drugs had to be stopped at Blackfriars Crown Court.
On the second day of the trial itself, prosecutors made an application to adduce additional unused evidence, which ran to thousands of pages.

2 months before the trial began, the Crown Prosecution Service (CPS) had been directed by the court to serve evidence on the defence and confirm if such items would form part of the used or unused evidence.

The Judge hearing the case described the application as ‘completely unacceptable’. He had been informed by Crown Counsel that the main reason for not disclosing the material was based on financial grounds. The Judge expressed his concerns at this practice in strong terms.

For more information please see here.
  • Japan condemned for carrying out Death Row executions
Japan has been subject to international criticism after it was revealed a number of prisoners had been executed in secret. Japan has refused to bow to pressure from the international community, including human rights organisations, to abolish the death penalty.

Under the system currently being implemented, inmates do not know they are to be executed until several hours in advance. 

To read more on this topic, please click here
  • Jurors who use the internet as part of their role could face jail
The Law Commission is reported to have recommended that jurors who use internet enabled devices in the course of their duties ought to be imprisoned for a maximum of 2 years.  It also recommended that judges ought to have the power to confiscate such devices over the course of a trial and that such devices must be removed from jurors prior to the start of deliberations.

The Law Commission considered reform in the area following a number of high profile cases, including that of Kasim Davey and Joseph Beard. Davey used Facebook during a trial, while Beard used the internet to obtain information that had not been disclosed at trial. The juror then informed the rest of the jury about this information. As a result the trial collapsed and a re-trial was ordered. 

Both men were sentenced to 2 months’ imprisonment.

Other possible reforms include conferring upon the Attorney General the power to order the removal of articles from media websites that could be prejudicial to deciding a case.

The purpose of the proposals is to provide greater certainty to all involved in the justice system, especially jurors. See here for more information.
  • Public Interest Immunity (PII) certificates upheld in the Litvinenko case
Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724

The murder and subsequent investigations into the murder of Alexander Litvinenko have been discussed in previous editions of the Update.
The coroner began his investigation into the murder of Mr Litvinenko. The government declined to disclose certain documents on the grounds of Public Interest Immunity (PII) claiming national security and/or international relations would be affected.

The coroner partially dismissed the certificate and asked for synopses of certain documents to be given. The government appealed this decision of the coroner.
The appeal was heard by a three judge panel of the High Court. The judges held unanimously that the decision of the coroner to disclose the synopses must be quashed. The court held that there was a real and significant risk to national security from disclosure of the gists. It held that the weight given to the views of the Foreign Secretary was insufficient and amounted to an error of law.

For further discussion on the issue, please see here.
  • Police demand sight of Channel 4 documents during their investigation into undercover police work
Mike Creedon is the Chief Constable of Derbyshire Police. He is responsible forinvestigations into the activities of undercover police operatives over a significant period of time.

The initial revelations over the conduct of undercover officers were made by a former officer called Peter Francis. The Chief Constable has demanded that notes and documents accumulated by Channel 4 from speaking to Mr Francis are handed over to assist with the investigation. The information itself relates to allegations that covert officers attempted to discredit the family of the murdered teenager Stephen Lawrence and their campaign for justice.
The Police investigators would like to speak to Mr Francis, to try and confirm if he has disclosed any information that may jeopardise current operations and officers participating in them.

The Police are investigating a number of serious allegations that have been made against the Special Demonstration Squad. More can be read about the allegations here, here, and here.

In other developments related to the investigation, the Courts have decided that a legal challenge on human rights grounds brought by women who were duped into having relationships with undercover officers will be heard in a closed court– the Investigatory Powers Tribunal.

However, other elements to the case, including claims for damage under common law, will be heard in an open court. For more discussion on the topic, please see here.
  • Libyan couple who claim they were subject to ‘rendition’ have their challenge against UK authorities dismissed
Belhaj and another v Straw and others [2013] EWHC 4111

Abdel Hakim Belhaj was a Libyan dissident, and was an opponent of the Gadaffi regime in that country. The couple claimed that they had been unlawfully rendered by the United States’ authorities, with agents of the UK government providing intelligence. Confirmation of the UK’s involvement in these renditions was confirmed following the discovery of documents in the wake of the 2011 revolution in Libya.

The court had to decide if it was able to hear the case. The acts complained of were state acts, and therefore fall under the doctrine of state immunity. State immunity is written into domestic law by the State Immunity Act 1978. State immunity is an absolute and preliminary bar, precluding any examination of the merits. A state is either immune from the jurisdiction or it is not.

The legal challenge based on the grounds of conspiracy to injure, trespass to the person and conspiracy to use unlawful means as well as misfeasance in public office were dismissed on the ground of state immunity. The allegations of negligence – where it was not argued that state immunity applied – were allowed to continue through the courts.

For more discussion on the case, please click here.
  • Developments in the court martial of Royal Marines over murder of a civilian in Afghanistan
Marine A and Others v Guardian News and Media and Other Media [2013] EWCA Crim 2367
In September 2011, a patrol of Royal Marine Commandos was involved in an incident. In the course of this incident an enemy Taliban fighter was badly wounded, but still armed. This fighter was then shot by the patrol.

One of the 5 soldiers tried for the offence, initially known as Soldier A, was found guilty of murder. At the beginning of the case, the Court Martial made rulings that none of the soldiers could be identified.

These orders were challenged by a number of media outlets at the conclusion of the case. Although the challenge was successful, that order was stayed pending appeal.

The Court Martial of Appeal held that in respect of Soldier A, there was a public interest in revealing the identity of the person convicted of the offence. In relation to those who were acquitted it was held that the authorities could manage the risk posed to those marines. A decision on the identity of the soldiers who were not prosecuted was remitted to the Court Martial. However the Court noted the high legal thresholds that must be met in order for the soldiers to retain their anonymity.
Soldier A has been identified as Sergeant Alexander Blackman. Following conviction, he was sentenced to life imprisonment, and must serve a minimum of 10 years in prison.

For more reading on this case, please click here and here.
  • Partner of former Guardian journalist challenges use of detention powers under Schedule 7 of the Terrorism Act 2000
Schedule 7 of the Terrorism Act 2000 became the subject of intense discussion, including from the independent reviewer of terrorism legislation following the detention and questioning of David Miranda. Mr Miranda is the partner of the former Guardian journalist Glenn Greenwald. Mr Greenwald wrote a series of articles on the nature and extent of surveillance operations carried out by the NSA and GCHQ. Mr Miranda was detained at Heathrow Airport, travelling from Germany to his home in Brazil. In Germany, he had recently met with another journalist who had contributed to reporting on the mass surveillance methods.

Following questioning, several items of electronic equipment were seized and subjected to examination by Police.

Mr Miranda has initiated judicial review proceedings against his detention, questioning and the seizure of property under Schedule 7. Proceedings comprised of 3 applications: (1) for further disclosure of evidence relating to exactly who made the decision to detain him under Schedule 7 of the Terrorism Act 2000; (2)to be allowed to cross-examine witnesses at the substantive hearing of the judicial review; and (3) to join Glenn Greenwald’s separate claim to these proceedings. The case was heard at the beginning of November 2013.

Meanwhile the Head of Counterterrorism of Metropolitan Police has stated to a Commons Select Committee that offences may have been committed, involving communicating information about members of the intelligence services.
  • Activist working for Reprieve challenges detention powers under Schedule 7
In another incident, a human rights campaigner is taking legal action against the Home Secretary and Sussex Police. Baraa Shiban, who works for Reprieve, was travelling to London to attend a meeting organised by Chatham House. He was detained under Schedule 7 and questioned.

In the same article, it is contended that other human rights activists have been detained, questioned and had items seized under Schedule 7.
  • Those detained under Schedule 7 must be allowed to speak to a Solicitor in person
In another court case, Elosta v Chief Commissioner of the Metropolis [2013] EWHC 3397, the High Court in England held that a person detained under the Terrorism Act 2000 has the right to speak to a Solicitor in person before answering questions.

Mr Elosta arrived at Heathrow airport having been to Saudi Arabia. He was stopped by police officers who began to question him under Schedule 7. He provided his personal details, but asked to speak to a solicitor before answering further questions. He was permitted to speak to his solicitor by telephone, and she indicated that she would arrange for a solicitor to attend the airport. However, the police indicated that they would not wait for that solicitor to arrive before proceeding with questioning.

It held there was a right to speak to a Solicitor and that the individual detained has the right to decide how they communicate with a Solicitor, not the Police. Although the refusal to speak to a Solicitor before questioning began was illegal, his detention under Article 5 was legal. It was noted that if Police had waited for the Solicitor to arrive, he would have been detained for longer. In addition, the reason for his detention – to fulfill his obligation to answer questions – was still valid.
  • Charlton supporters jailed for singing chants glorifying the murder of Stephen Lawrence
6 Charlton Athletic fans have been sentenced for singing offensive chants about the murder of Stephen Lawrence. They had watched an FA Cup game and were travelling to their next destination by train when the offences took place.

5 of the 6 men were handed custodial sentences, while the final member of the group received a suspended sentence. Click here for more information

  Prisoners' Rights
  • Scottish prisoners fail to overturn ban on voting in 2014 referendum
Leslie Moohan, Gary Gibson and Andrew Urquhart Black

In another twist in the right of prisoners to vote, 3 Scottish prisoners have been unsuccessful in their application to overturn a ban on voting in this year’s independence referendum in Scotland.

The legislation as it relates to referenda is different to that which regulates elections in the UK. Under referendum legislation, the Scottish Parliament would be entitled to extend the right to vote to prisoners. However, it would seem that there is cross party support not to extend the franchise to prisoners for the purposes of this referendum.

There are indications in this article that the prisoners might appeal the decision of the Court of Session.  For more information, please click here
  • Government continues to refuse to implement the ruling of the  European Court of Human Rights on prisoner voting rights
In the related matter of the rights of prisoners to vote in elections, Prime Minister David Cameron has stated that prisoners ought not to be given the right to vote, if the national Parliament has decided not to extend the franchise to them. Mr Cameron goes on to raise concerns over the ability of decisions of the ECtHR to affect decision making in this jurisdiction.

The attacks from the Prime Minister appear to chime with others within his cabinet. Chris Grayling, the has claimed that the European Court of Human Rights has lost its legitimacy and has stated more generally that both the European Court of Human Rights and the European Court of Justice have nothing to offer the United Kingdom.
However, a joint Parliamentary Committee on the Draft Prisoners Voting (Eligibility) Bill has said there is no rational basis for a blanket ban on prisoners being allowed to vote.
 
Please see here for more information.

Housing Law
  • Landlord issues eviction notices to all tenants receiving Housing Benefit
 Fergus Wilson is a landlord who has a property portfolio of 1,000 properties in the Kent area of England. At the beginning of 2014, he decided to issue eviction notices to all tenants who were in receipt of Housing Benefit. In addition, he has instructed letting agents not to accept applications from those who are in need of Housing Benefit.
 
In a Guardian article, the housing charity Shelter is quoted as saying that other private landlords had taken a decision similar to that of Mr Wilson. In England and Wales there are roughly 500,000 people who are in work but whose income is so low they are entitled to Housing Benefit. There is a fear that such decisions from private landlords will create benefit blackspots and force lower income families into the poorest quality accommodation. For more on the topic, please see here.

 
Social Security Law
  • Department of Work and Pensions loses appeal against decisions on Right to Work schemes
R (on the application of Reilly and another) v Secretary of State for Work and Pensions [2013] UKSC 68
The UK Supreme Court upheld a decision of the Court of Appeal that the government’s new ‘back to work’ schemes were unlawful, as the government had not provided a “”sufficient detailed prescribed description” of the schemes.

The application was taken initially by Cait Reilly, a graduate who had to cease her voluntary work in order to work on a back to work scheme in Poundland. A further challenge, by Mr Wilson was joined to her application and both matters were dealt with together.

However, the Supreme Court did not find that the schemes fulfilled the definition of forced or compulsory labour.

This successful decision could have meant that thousands of people who had deductions from their benefits made for not complying with such schemes, were eligible for compensation. However the Minister for Work and Pensions rushed through retrospective legislation which means that compensation will not be payable.

That legislation itself is subject to a separate legal challenge. For further discussion on the case please see here.
  • Legal challenge to the maximum cap on benefits payable fails
JS and Others v The Secretary of State for Work and Pensions [2013] EWHC 3350

As part of the welfare reforms that are being implemented in England and Wales, there will be a maximum limit on the amount of benefits that can be claimed by any household. The £500-a-week cap affects housing benefit, child benefit and child tax credits.

It was argued the cap unlawfully breached the United Nations Convention on the Rights of the Child and the European Convention on Human Rights, which protects the right to respect for home and family life. However the Judges ruled that the benefit cap was a policy decision and was not disproportionate or irrational as to be an area where the courts ought to intervene.

The challenges to the cuts in benefits comes at a time when more people than before are having sanctions imposed on their benefit entitlement, including losing them altogether.

For further discussion on the cases please see here and here.
  • Travellers families win right to support throughout England and Wales
J, R (on the application of) v Worcestershire County Council & Anor [2013] EWHC 3845 (Admin)

The case was taken on behalf of a three year old child who suffers from Down’s syndrome. The child comes from a family of fairground workers, who travel around the country during the peak season.

The county council in this case had told the family that once the family (and the child) left the council area, it was no longer responsible for providing the family with support. In the course of the proceedings, the council suggested that a fresh application for support is made to each council area once the family enter it.
This argument was dismissed by the Judge. He found that the county council “had the power, for so long as he remains a child who is a child in need, to provide a range and level of services appropriate to his needs both inside and outside their area, and at times when the claimant is not physically within their area but is within England and Wales."

The applicant in this case was supported by the Equalities and Human Rights Commission in England.

For more discussion on the case, please see here.
  • Government’s decision to scrap Independent Living Fund unlawful
Stuart Bracking & Ors v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 (06 November 2013) 

The Independent Living Fund (ILF) is a fund that allows severely disabled people to live in the community. It has a budget of £320 million. The government sought to abolish the fund. It stated that as most social care needs were now to be met by local authorities, they would be responsible for providing the resources for the fund. The ILF itself is essentially a ringfenced support fund. If it did not exist and had to be met from elsewhere, the applicants were concerned that such developments could lead to a reduction, or indeed loss, of financial support to live in the community.

The Court of Appeal held that the government failed to consider its duties under the Equality Act, such as the need to promote equality of opportunity for disabled people, and to encourage their participation in daily life.

Around 18,500 people claim from the ILF. Without such assistance, severely disabled people would have to give up work, or give up living in the community and live in residential care.

Further articles can be found here and here.
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Medical Law
  • Right to die challenges reach UK Supreme Court
The Update has followed the cases of Tony Nicklinson and Paul Lamb for a significant period of time. These cases are now to be heard by the Supreme Court. Tony Nicklinson passed away as his case was going through the Courts. His widow, Jane, has been given permission to continue his legal challenge.
  • DPP appeals to the Supreme Court over ruling against prosecutorial guidelines on assisted suicide
A similar challenge was raised by a man only referred to as ‘Martin’. He sought to challenge the DPP’s prosecutorial guidelines that are in place regarding when someone will be prosecuted for the offence of assisted suicide. Although he was successful before the Court of Appeal, the DPP has appealed this decision to the Supreme Court. All cases are to be heard together by the Supreme Court.
  • Muslim family loses challenge against decision not to intensively resuscitate family member
In a similar case, a devout Muslim family took a legal challenge against a NHS Trust on behalf of their father, who is in a minimally conscious state. The Trust had decided that it would not be in the father’s best interests to be intensively resuscitated or be admitted into intensive care if his condition deteriorated. 
The family sought to argue that the father’s suffering brought him closer to God.

However, the Judge granted the NHS Trust the declaration it sought. The Judge stated that resuscitation "would not be prolonging life. It would effectively be restarting a life which has stopped.”
  • Public bodies face liability for the actions of contractors to whom they have outsourced services
Woodward v Essex County Council [2013] UKSC 66
The applicant, Annie Woodward has won the right to be able to pursue compensation from a local education authority, 14 years after she almost drowned.
Ms Whitmore was a pupil at a Junior High School in Basildon, Essex. She was at a local swimming pool where she nearly drowned. She suffered extensive brain damage, and cannot look after her own affairs. Her claim for compensation was refused by the High Court and the Court of Appeal. The Court of Appeal held it would not be just or fair to impose such a duty upon the authority. It was also concerned about the potential chilling effect such an imposition would have amongst authorities.

A 5 judge panel of the Supreme Court held unanimously that the Council owed a ‘non-delegable duty of care’ to Ms Woodward. The case will now return to the High Court to decide whether Ms Woodward was a victim of negligence.

For further reading, please see here and here.

Legal Aid and Law Reforms in England
  • Important victory for eligibility of Legal Aid in England for those challenging decisions to detain them under the Mental Capacity Act
A firm of Solicitors in England and Wales has forced a concession from the Department of Justice regarding the provision of Legal Aid under the new system. A decision was taken to remove from eligibility patients who were challenging decisions by the authorities to detain them under the Mental Capacity Act.
 
London firm Creighton & Partners, acting pro bono, asked the Court of Protection to consider the legality of regulations introduced in April that stopped legal aid for a detained person once a court began considering the case.
 
The Judge noted that although the Court of Protection could not direct a change in the regulations, it could refer the matter to the Administrative Court which did possess such powers. It was at this stage of proceedings the Department of Justice accepted it should reverse the changes that came into force in April 2013. Please click here for more information.
  • Solicitors and Barristers in England protest over Legal Aid cuts
In a move that has been reported in various parts media in a number of Solicitors and Barristers in England and Wales refused to attend Courts across the jurisdiction on the morning of the 06th January 2014. The reasons for doing so related to the proposed 30% cuts to Legal Aid fees about to be introduced by the government in criminal cases. There are also great concerns about the large number of categories of cases where Legal Aid will no longer be available. Both sides of the legal profession are concerned that the cuts will mean the most vulnerable and disadvantaged will be deprived of legal assistance and the reduced rate of pay will mean very few legal practitioners will be able to continue to practice in criminal law and the remaining areas.

For more on this topic please see here  and here.
  • Following reforms in England, victims of domestic violence are finding it difficult to access Legal Aid
Women’s Aid, Welsh Women’s Aid and Rights of Women have published a joint report regarding the new eligibility criteria for Legal Aid in cases of domestic violence. According to the report, 6 out of 10 victims of domestic violence are unable to access Legal Aid.

The main difficulty in making claims relates to the enhanced criteria regarding production of evidence. In the course of 2 surveys, half of the women interviewed said they did not have the correct documents of proof. The remainder either had to pay to access the evidence or had to wait in order to receive such information.
For further information, please click here.
  • Personal litigant punches wife during court hearing
One of the greatest concerns over the reduction of scope and availability of Legal Aid is the higher number of people who will have to represent themselves before the courts. The important role of independent legal representatives in any case cannot be underestimated, when putting forward a case on behalf of a client.

This concern is even more acute when there are proceedings before the family courts, and contact and residence applications regarding children must be decided upon. Being an unrepresented litigant can increase the tension and emotions experienced by those going through these proceedings.

In a Family Court in Essex, a judge was about to deliver his ruling in relation to contact and visitation applications. As he began, the male litigant in person – the father of the children in the proceedings - walked across the courtroom and punched his wife several times in the head. He was detained by court staff and arrested by police upon their arrival.

The man was brought before the Magistrate’s Court for the offence of common assault, to which he pleaded guilty. He is also to face contempt of court proceedings. The Law Society is concerned that such instances will increase as fewer applicants are eligible for Legal Aid.
  • Judicial review of new professional body for criminal lawyers in England is dismissed
The Criminal Bar Association (CBA) of England and Wales took a judicial review against a number of professional regulatory bodies, including the Bar Standards Board (BSB) and the overall regulator for the legal sector, the Legal Services Board (LSB). As mentioned in previous editions of the Update, other parties such as the Law Society have been granted permission to intervene.

Judgment has just been handed down and the legal challenge has been dismissed. However, Barristers have said they will boycott the scheme, despite the failure of the legal challenge.

Further reading on the topic can be found here and here.
  • Concerns over weakening of Freedom of Information Act remain.
that the government is still considering longstanding proposals to diminish the power of the Freedom of Information Act. were released as far back as November 2012, suggesting that it ought to be easier for public bodies to reject freedom of information requests on the grounds of costs.

Recently a letter was sent to the government on behalf of 76 organisations, imploring the government not to reduce the effectiveness of the Act.
More information can be found here and here.
  • Government proposes further curtailing of judicial review
The government has recently published proposals for further changes to the potential availability of judicial review as a mechanism to hold public bodies to account. The additional proposals include considering changes to the rules on standing, limitations to the costs that can be claimed (particularly at the leave stage) and changes to the definition of procedural impropriety.

The UK Human Rights Blog discusses issues surrounding judicial review here. Another article from the same blog contains useful links to other discussions around the issue.
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Immigration Law
  • Developments relating to Romanian and Bulgarian nationals’ ability to travel to the UK via the EU
The lifting of EU restrictions as they relate to Romanian and Bulgarian nationals has been a matter of intense media debate in the UK. It has also been a matter of extensive discussion within political circles, especially within the Conservative Party.

In December 2013 it was revealed that the government was seeking to rush into force additional benefits tests relevant to Romanian and Bulgarian nationals. The government intended to bring such measures into force before the relaxation of rules which was scheduled for 01st January 2014.

It was also announced that the Immigration Bill which would relax the transitional arrangements would not be debated until the New Year.
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Media Law
  • 2 men arrested for sending anti-semitic tweets
It has been reported that 2 people have been arrested following a recent football match between Tottenham Hotspur and West Ham United. Both men had allegedly sent Tweets of an anti-semitic nature after the football match took place in October 2013. Both have been arrested on allegations of inciting racial hatred.

The arrests and alleged criminal offences have taken place in the context of a over the use of anti-semitic language by football fans – whether by opposition fans towards Tottenham Hotspur, or by Spurs fans themselves who claim they are attempting to de-stigmatise such derogatory language.

More information on this issue can be found here and here.
  • Harry Styles obtains injunction against paparazzi journalists
One Direction’s Harry Styles has obtained an injunction against photographers taking his picture under certain circumstances. An order handed down by Mrs Justice Nicola Davies orders unnamed photographers to stop pursuing the singer by car or motorcycle, placing him under surveillance or loitering within 50 metres of his place of residence to monitor his movements.

The injunction was granted until the middle of January, when another hearing is to take place to ascertain how the case will proceed.
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LGBT Law
  • Australian High Court overturns state law on same sex marriage
In October 2013, the state legislature of the Australian Capital Territory (ACT) had passed legislation allowing for same sex marriages. The law allowed same sex couples from all over Australia to be married in ACT. In 2004, The Federal government had passed legislation defining marriage as a union between a man and a woman.

The High Court held unanimously that the ACT law could not stand alongside the national law that had already been passed. It stated that the national legislation as it stands only allows for marriage between a man and a woman.

For more on this issue, please see here and here.
  • India re-states ban on gay sex
In 2009 the Indian High Court passed judgment that decriminalised gay sex. The case itself continued through the justice system and reached the Supreme Court. The challenge to the High Court’s decision was taken by a combination of Christian and Muslim religious groups, and a far right politician. In December 2013, the Supreme Court overturned the High Court’s decision and reinstated the ban on homosexuality.

The decision itself surprised many as the court has passed a number of progressive judgments on a number of different issues. It had been anticipates that the court would affirm the original decision.

The judgment has been remarked upon by the UN commissioner on human rights.
  • Dozens of arrests in Nigeria as anti-gay laws come into force
The President of Nigeria, Goodluck Jonathan, signed the Same Sex Marriage Prohibition Act on 07th January 2014. The legislation criminalises same sex marriage and individuals are liable for a maximum of 14 years’ imprisonment. This legislation also criminalises membership of an LGBT organisation. Membership of such an organisation can be for up to 10 years.
The Nigerian legislation was passed shortly after Uganda passed its own Anti-Homosexuality Act.

The US Secretary of State, John Kerry has denounced the spread of anti-gay legislation in the region.

Please click here for more information.
  • Private hotel owners who operate a heterosexual married couples only policy did not have their rights to religious beliefs breached.
Bull and another v Hall and another [2013] UKSC 73
Mr and Mrs Bull own a private hotel in Cornwall. They have strong Christian beliefs. They have a policy that states only ‘heterosexual married couples’ can hire a double room.
Mr Hall and Mr Preddy are a homosexual couple. They had hired a double room over the phone (at which stage they were not told of the double room policy). When they arrived at the hotel, they were informed that they would not be able to avail of a double room.

The couple took legal action on the grounds that they had been discriminated against on the grounds of sexual orientation.
Mr and Mrs Bull appealed to the Supreme Court. They denied that their policy amounted to direct discrimination. They also contended even if their policies were indirectly discriminate, that indirect discrimination was justified.

The Supreme Court dismissed the appeal unanimously. The Court held that their policy amounted to direct discrimination. If it was indirect discrimination, it was not justified. Although the court held that the right to religious expression (Article 9 of the Convention) was engaged, it was not breached as the limitations on this right were justified and proportionate in the protection of the rights of others.

For further discussion on the case, please see here, here, here and here.

Commercial Law
  • Private companies stripped of contracts for tagging criminals
In a widely reported incident, G4S and Serco had contracts with the government. These contracts involved the monitoring of criminals who had been released on licence, subject to wearing an electronic monitor which revealed their whereabouts.

In autumn 2013, it was first alleged that the 2 companies had been involved in practices that led to both companies overcharging for work they said had been carried out. In November 2013, the Serious Fraud Office said it was going to carry out an investigation, to see if any criminal acts had taken place. This led G4S to carry out its own internal investigation.

Following this review, G4S admitted that it had overcharged under the contracts to the amount of £24 million. The practice of overcharging had been taking place from 2005 until 2013. Both companies continued to charge the Home Office for the monitoring of offenders after such requirements had come to an end. This included cases where people had been returned to prison, or had in fact died.

Although they have been barred from bidding for the new tagging contracts, it is not clear whether these incidents and subsequent investigations will affect adversely the companies’ ability to tender for other government contracts.

Religious Law
  • Christian care worker loses legal challenge on Sunday working
The Court of Appeal has dismissed the appeal of a Christian children’s care worker against the decision of the Employment Appeal Tribunal (EAT) that a requirement that she work on Sundays indirectly discriminated against her on the grounds of religion or belief.

The challenge was taken by Celestina Mba. Mba's employer, Merton council, is said to have refused to rule out rostering her to work some Sundays at the 24-hour children's home, despite Mba's offer to work night shifts and for less money instead.

The Employment Tribunal held that the Council’s requirement for staff to engage in Sunday working was a proportionate means of achieving a legitimate aim, which was round the clock care of children.

Although she was able to prove there had been errors of law in the decision making process up to this point, the Court of Appeal held the errors of law did not materially affect the conclusions reached.

For more discussion on the case, please see here and here.
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Local Developments
  • NI Health Minister finally lifts ban on unmarried couples being able to adopt
As has been reported on in previous editions of the Update, in June 2013 the Northern Ireland Court of Appeal dismissed an appeal by the Health Minister. This appeal was against a decision of the High Court which held a ban on unmarried couples from being considered as adoptive parents was discriminatory and contrary to human rights.

The Health Minister sought to appeal to the United Kingdom Supreme Court, however leave to appeal was refused by the Supreme Court and the Court of Appeal.
InDecember 2013– after the appeals process was exhausted – the Department of Health formally changed the policy on adoption.

More information can be found here.
  • NI Justice Minister to consult on possible further changes to the laws on abortion
The Justice Minister for Northern Ireland, David Ford has announced that he is to consult on changes to the abortion laws in Northern Ireland. At present the laws do not extend to providing termination services when a foetus is suffering from a fatal abnormality. At the end of last year there were reports of 2 separate cases where it was necessary for the women in question to travel to England to have a termination.

Mr Ford is considering the laws as they relate to fatal foetal abnormality and pregnancy following rape or incest.
  • NI warned about the lack of speed in welfare reform
A UK Work and Pensions Minister, Mike Penning, has voiced concerns regarding the slow pace of welfare reform in Northern Ireland.

Mr Penning stated that Northern Ireland has received the best deal on welfare reform and that failure to implement reform could result in a deduction from the block grant for Northern Ireland that could amount to a loss of £5 million per month.
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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 david@pilsni.org to request an application form.

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