Public Interest Litigation Update:

25th August 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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Save the date! The PILS Project and PILA host joint conference: 11th November 2011
The PILS Project and the Public Interest Law Alliance are organising a joint conference on the 11th November 2011 entitled Political Commitment, Practical Protection: Using the ECHR North and South. The event will host Director of Liberty, Shami Chakrabarti, as keynote speaker and will take place in the Croke Park Conference Centre in Dublin. Further information and details on how to register will be available shortly.

New blog on human rights in NI
A new blog has been created to facilitate discussion of human rights issues of interest to people in Northern Ireland: www.rightsni.org.  The blog was an initiative of CAJ and Amnesty International but is open to contributions from academics, NGOs, practitioners and others.  Recent posts include:
Budget cuts, legal aid and welfare reform
  • Research on budget and welfare cuts
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 to find out which other organisations have experienced cuts visit the Cuts Watch website.
 
Advice NI is conducting a survey on the impact of welfare cuts on vulnerable, low income households in Northern Ireland.  The online survey is aimed at people reliant upon the social security system; including needing help with their mortgage or rent; help with childcare costs; help because they are sick or disabled; or generally finding it difficult to pay bills and make ends meet.  Click herefor further information.
 
False Economy has published research based on hundreds of Freedom of Information requests which found over 2000 charities across England are facing budget cuts as local authorities cut their funding.  Read more about the research here.
  •  Resources on human rights and budget cuts
 The Free Legal Advice Centres (FLAC) in the Republic of Ireland has recently published a document entitled Maintaining Rights in a Recession which discusses how government can and should continue to uphold human rights standards in economically difficult times. 
 
Thom Dyke, a barrister practising in human rights, criminal and public law, has recently published an article entitled Judicial Review in an Age of Austerity.  The article looks at the legal principles in play when the court is considering economic policy decisions, the law on consultation processes and a number of recent cases in which budget cuts have been challenged by way of judicial review.
 
A number of papers are now available from the London Metropolitan University Human Rights and Social Justice seminar series.  These include: Is austerity compatible with UK's human rights obligations and what tools of analysis are required to find out?; Using human rights to audit spending cuts: example of gender equality impact; and Using the human rights 'measurement framework' to audit child poverty policy.


Healthcare, community care and mental health
  • New case on assisted suicide
Following on from the cases taken by Diane Pretty in 2002 and Debbie Purdie in 2009, a 46 year old man who is completely paralysed and has ‘locked in syndrome’ is seeking to take legal action to enable him to take his own life.  Unlike the Pretty and Purdy cases, however, the man does not propose to have his partner assist his suicide but instead would like the right to get paid professional assistance to travel to Switzerland to avail of legalised assisted suicide there or the services of a doctor in the UK to ease his discomfort should he decide to end his life by refusing food and drink.
 
Leigh Day Solicitors, who are representing the man, are seeking an interim declaration from the court that both they and the man’s doctors will not be prosecuted for helping to prepare his case.  Beyond that they would like the High Court to clarify whether the reference to ‘compassionate assistance’ in the official guidance for prosecuting assisted suicide could include legal and medical professionals working with the individual.  Read more here.
  •  Landmark ECtHR case on duty of local authority to protect vulnerable adults settled
A potentially landmark case at the European Court of Human Rights involving two vulnerable adults who had suffered a sustained campaign of harassment and assault by a gang of local youths has been settled.  The case argued that the right of the two adults not to be treated inhumanely or degradingly (ECHR Art. 3) and their right to privacy and family life (Art. 8) had been violated by the failure of the local authority to take positive steps to prevent the harassment.  The European Court stated that it was satisfied that the settlement is based on respect for human rights and therefore finds no justification for continuing to process the case.

Crminal Justice system
  • Challenge to full body searches of discharged or acquitted prisoners dismissed
Conway’s Application [2011] NIQB 49
 
The Northern Ireland High Court has ruled that routine full body searching of prisoners leaving prison after they have been discharged or acquitted is lawful.
 
In an earlier case taken in May 2011 by the same applicant, Brendan Conway, Justice Treacy dismissed the claim that routine full body searching of all prisoners entering and leaving prison was unlawful (including those going to hospital or on compassionate leave) – but with the caveat that this may not be the case for prisoners leaving the prison who have been discharged or acquitted.  An application for judicial review was then made raising this exact point.
 
In reaching his judgment in the present case, Justice Treacy found“compelling, convincing and subsisting security needs for such full-body searching even on final discharge”.  This conclusion was partly based on evidence that the Prison Service has reviewed this policy on a number of occasions and still finds it necessary.  It was submitted that this is in order to prevent material being taken out of the prison that would help others escape or that has been taken unlawfully from the other prisoners,  to prevent information which could be of use to terrorists or organised criminal gangs, such as videos of the inside of the prison, from being disseminated, and to prevent prisoners who have been discharged or acquitted from voluntarily, or under coercion, taking things out of the prison for those leaving simply on compassionate leave, court leave or going to hospital.
  •  Prisoners on dirty protest challenging denial of legal and family visits
Prisoners in Maghaberry Prison have received permission from the High Court to challenge the decision of the prison service not to allow the their legal representatives and family to visit them, to receive phone calls or to attend court hearings.  The prisoners are protesting against the conditions they are being held in and argue that the decision is in breach of their rights under the European Convention.  The Prison Service is arguing that the ban was imposed for health and safety reasons.
 
In granting permission for judicial review Mr Justice Weatherup accepted that there may be a serious health risk but argued that the Prison Service are under an obligation to consider what measures could be put in place to facilitate contact with family and lawyers.  Read the BBC report on the challenge here.
  •  NI Court rules that time spent on bail does not count as part of 24 hour detention period
Connelly’s (James) Application [2011] NIQB 62
 
Under the legislation (Article 42 of the Police and Criminal Evidence Act) a person cannot be held in police detention for more than 24 hours without being charged with an offence.  The applicant in this case, James Connelly, argued that the 24 hour period begins upon arrest and continues even after release on bail and therefore the police cannot ‘stop the detention clock’ by releasing someone on bail.  This argument was successful in a recent English case but has now been rejected by the Northern Ireland High Court.  The NI Court argued that in interpreting the legislation the English Court had failed to recognise the context of the wording.  It dismissed Mr Connelly’s challenge on the basis that a person on bail is not in ‘police detention’ or under the supervision of a police constable and therefore cannot be considered to have been ‘detained’. 



Discrmination
  •  Value cabs agree out of court settlement in disability discrimination case
 Belfast taxi company, Value Cabs, has agreed an out of court settlement with a woman who claimed they discriminated against her by charging her more than a person without a disability for using a disabled accessible taxi.  The woman was paid £2,000 without an admission of liability and was supported to take the case by the Equality Commission for Northern Ireland (ECNI).  Read more here.
  •  Tribunal rules in favour of woman sacked after taking successful age discrimination case
The Industrial Tribunal has ruled in favour of a woman who was sacked by her Cookstown employers after she had successfully taken an age discrimination case against them.  The Tribunal found the sacking amounted to victimisation.  This case was also supported by the ECNI.  Read more here.

Education
  • Challenge to Scottish University fee system
Human rights law firm Public Interest Lawyers is threatening to challenge the Scottish University fee system for charging students from England, Wales and NI to study at Scottish Universities but providing it free to Scottish and other EU students.  The firm will argue that this system is in violation of Art. 14 of the European Convention on Human Rights by discriminating on the basis of national origin, and also that it is in breach of the Equality Act 2010.  Read more here
 
Matthew Kelly writing in the Guardian raises a number of interesting points relating to the challenge.  He argues that the Equality Act 2010 is unlikely to be of assistance in this case but that the ECHR arguments may gain more traction (assuming it would be argued on the basis of Art. 14 discrimination in conjunction with Art. 2 Sch. 1 right to education).  This being so Mathew points out that it is not clear that indirect discrimination has occurred since the basis of free university education in Scotland is residency rather than national origin.  Also, interestingly, since it is the UK that is the signatory to the ECHR, and not Scotland, the challenge would be against the UK Government.
 
Public interest lawyers is also representing two sixth formers in England who are challenging the lawfulness of the government’s decision to allow universities to raise tuition fees.  Read more on that case here.
  •  Irish High Court challenge to student grant reform
The Irish High Court has granted the National Union of Third-Level Students permission to challenge a reform of student grants contained in Ireland’s 2010 budget that changed the rules governing how far a student must live from college (from 15-45km) in order to receive a higher rate of payment.  Read a news report on the case here.


Travellers
See details on the current consultation on Traveller accommodation in the Legislative and Policy section below.
  •  Dale Farm Travellers threatened with eviction
Families living in England’s largest Traveller site at Dale Farm have been threatened with eviction if they do not leave their unauthorised pitches by 31st August.  The UN Special Rapporteur on the right to housing, Raquel Rolnik, has issued a statement urging the Government and local authority to work with the Travellers to find a peaceful solution.  She also warns that if the evictions proceed, leaving up to 80 families homeless, the UK could be in breach of its international human rights obligations.  Read more here.  Amnesty International has also called on the government to negotiate a settlement.
  •  Irish court overturns traveller discrimination ruling
An Irish Circuit Court has overturned the decision of the Equality Tribunal by ruling that a school’s policy of giving priority in admissions to boys whose father or brothers attended the school is not indirectly discriminatory against Travellers.  According to PILA’s report on the case the Irish Traveller Movement Law Centre, who supported the individuals in taking the case, have lodged an appeal to the decision.  David Keane on the Human Rights in Ireland blog provides an overview and analysis of the case here.  Read the judgment here.


Costs
  • Courts make two important rulings on costs
Adam Wagner on the UK Human Rights Blog has reported on two recent cases in which the courts appear to have broadened the circumstances in which a public authority will be ordered to pay the legal costs of an individual taking a case against them.
 
G v E & Ors [2011] EWCA Civ 939
 
The general rule in civil law cases is that the loser pays the winner’s legal costs but there are exceptions to this rule.  In the Court of Protection, which deals with cases taken by vulnerable persons who lack mental capacity to make certain decisions, usually each side only pays their own costs, regardless of who wins.  The Court of Appeal, however, has recently upheld the decision of the Court of Protection to order Manchester City Council to pay the costs of a young man with severe learning disabilities who was unlawfully removed from his long-term foster carer.  The Court found this to be a ‘special’ case in which:
 
“the local authority’s blatant disregard of the processes of the MCA (Mental Capacity Act) and their obligation to respect E’s rights under the ECHR amount to misconduct which justifies departing from the general rule.”
 
Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895
 
     This case concerned five immigration judicial reviews.  Each of the cases were settled by the UK Border Agency (UKBA) before reaching court but the individuals taking the cases wanted the UKBA to pay the legal costs they had incurred up to that time.  The usual rule is that the courts will not make a public authority pay claimants’ legal costs if the case is settled, unless it “it is obvious” which side would have won. 
 
The Court of Appeal in these combined cases ordered the UKBA to pay the claimants’ costs, even though it may not have been obvious that they would have won had the case made it to court.  The Court reasoned that where an individual has raised a legal issue with the relevant public authority and the authority has failed to adequately respond, that individual is entitled to start legal proceedings.  If the case is subsequently settled the rule that the loser, i.e. the public authority, pays the winners legal costs should apply unless the public authority can justify a departure from this rule.  Public authorities cannot therefore easily avoid paying the legal costs of a claimant by simply settling their case.
 
For further analyses see the UK Human Rights blog article here, another on the Nearly Legal blog here and on the Free Movement blog here.


Immigration and asylum The Court of Appeal has overruled the High Court in finding that an Iranian failed asylum seeker with indefinite leave to remain was entitled to residential accommodation.– see also Nearly Legal’s coverage. The First Tier Tribunal has allowed an appeal against expulsion from a homeless Czech national.  The AIRE Centre represented the individual in the case. The out-workings of the Zambrano decision were seen recently in the decision of the Upper Tribunal that the deportation of a Nigerian man, who is the sole carer for his son, a British citizen, is not proportionate.  It found that while the best interests of the child is not a trump card it is a very important principle. The Court of Appeal has ruled that “family ties” within the context of ECHR Art. 8 cannot arise out of mere financial dependency.  The case concerned a Somali woman who was refused leave to enter the UK to join her daughter.


Other public interest cases
Pro Bono Work
  • 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 atest 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 Traveller accommodation policy
The Department of Environment has issued a proposed amendment to planning policy H3 of PPS 12 in order to provide serviced sites for Travellers outside of settlements.  Read the consultation document here.  The closing date for responses is 30th September 2011.

Other PIL news
  • EHRC reverses position on European Court intervention
In the last edition of the PIL Update it was reported that the Equality and Human Rights Commission were seeking to intervene in four cases at the European Court of Human Rights relating to religious freedom under ECHR Art.9.  The Commission were intending to intervene in support of four claimants who allege religious discrimination in the work place, to argue that “judges have interpreted the law too narrowly in religion or belief discrimination claims”. 
 
The Commission has since opened a public consultation seeking views on their proposed intervention, however, the document reveals that they have changed their position on two of the cases; they will now be supporting the decisions of the UK courts in the cases of Ladele and McFarlane but propose to continue supporting the applicants in the Eweida and Chaplin cases.  Read the consultation document hereand the UK Human Rights post on the about-turn here.
  •  Update on the Bill of Rights
Colin Harvey has written an article on the Constitutional Law Group blog entitled Where next for the Northern Ireland Bill of Rights Process?.  He argues that while there have been, and continue to be many obstacles in the Bill of Rights process:
 
“it is worth defending the intrinsic value of the process, the scale of participation, the seriousness with which it was taken and engaged with, and the many remarkable proposals that emerged. Stalled as it now is, the Northern Ireland Bill of Rights process is something worth celebrating.  As intangible as it may seem, it has impacted on the sort of human rights culture we now have in Northern Ireland.”
 
Meanwhile the UK Bill of Rights Commission has published a discussion paper entitled Do we need a UK Bill of Rights.  Visit the Commission’s website here and read the discussion paper here.  The deadline for responses is the 11th November 2011.   A post on the UK Human Rights blog offers a brief summary and analysis of its content here.


Useful resources
  • European Court Caselaw Update
The latest European Court of Human Rights Case-law Update is available here.
  •  What’s the HRA ever done for us?
Roger Smith, Director of JUSTICE, has written a short article for the New Law Journal entitled “What’s the HRA ever done for us?”which looks at the impact the Human Rights Act has had in the UK since being passed in 1998.
  •  New website for rights of older people
A new website has been created to provide information on the rights of older people: www.rights4seniors.net. Information on the website includes issues such as community care, penions and other benefits, health and housing.
  •  EHRC guidance on human rights and social housing
The Equality and Human Rights Commission in England has produced a guide for social housing providers on what the Human Rights Act means for their work in practice, including how to make HRA compliant decisions and the role of the HRA in the allocation of housing, in repairs and maintenance and eviction.  Read the guide here.
  •  ‘Suspect Communities’? Counter-terrorism policy, the press, and the impact on Irish and Muslim communities in Britain
London Metropolitan University has produced a comparative report looking at representations of ‘suspect communities’ and their impact on Irish and Muslim communities in Britain from 1974 – 2007.  Click here to read the report.
  •  Guides and information for representing yourself in court
It has been predicted that cuts to legal aid will result in a much larger number of people choosing to represent themselves in court.  A number of articles and resources have recently been published as a result including a short guide to litigating in person on the Guardian website here, an analysis of existing research on civil and family litigants in person by the Ministry of Justice here and a look at how the courts and legal system can be more accessible to litigants in person, based on the US model, here.
  •  Update on the accession of the EU to the ECHR
Jonathan Goldsmith has provided an update on the European Union’s accession to the European Convention on Human Rights in the Law Society Gazette here.  It looks at the complexities around approval mechanisms (the Committee of Ministers, Parliamentary Assembly of the Council of Europe, European Court of Justice, EU’s Council of Ministers and MEPs are all in play), appointment of a judge to the European Court by the EU and the relationship between the European Court of Human Rights and the European Court of Justice.
  •  New UN Human Rights Committee Comment on freedom of expression
The UN Human Rights Committee has published General Comment No.34 dealing with the right to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights.  The comment can be read here and a brief discussion of the new Comment by Vice-Chair of the UN Human Rights Committee, and in-coming Chief Commissioner of the Northern Ireland Human Rights Commission, Micheal O’Flaherty, can be viewed on You Tube here.

Jobs and Events
  • Job at JUSTICE: Director of Human Rights Policy
JUSTICE is inviting application for the post of Director of Human Rights Policy. The deadline for application is 9.30am, Wednesday 7 September 2011. For more details about the post and information about how to apply please visit jobs at JUSTICE.
  • Promoting social inclusion for people with disabilities: national and European perspectives (21.09.11)
The Irish National Disability Authority and Economic and Social Research Institute are hosting this seminar looking at recent findings from national and European research on poverty and social exclusion experienced by people with disabilities.  The event will take place from 9am – 1pm at the ESRI in Dublin.  Click here for further information.
  • Towards non-discriminatory access to healthcare ( 23.09.11)
The eligibility of migrants to access health care services has become a topic of intense political and professional debate. On 23 September 2011, Migrant Rights Network is hosting a conference to share best practice and information on the effective inclusion of migrant communities within health care services. The conference will showcase projects that have successfully engaged people from migrant communities and provide practical information on how to replicate them throughout the UK.  Read more here.
  • Judicial Review Trends and Forecasts (13.10.11)
The Public Law Project’s annual human rights  judicial review conference will take place in London on 13th October.  Content will include an overview of the year in judicial review, the use of international law in public law claims, a practical workshop for NGOs on bringing cases in their own name, a session on practical obligations within consultation processes and a session on litigating the cuts.  Click herefor further information.
  •  JUSTICE Human Rights Law Conference (19.10.11)
This year’s annual JUSTICE Human Rights Law Conference will host Lord Chief Justice of England and Wales, Lord Judge, as keynote speaker and a range of other leading practitioners on issues such as immigration, the Bill of Rights Commission, judicial review and equality.  Click here for further information.
  •  Law Society of England & Wales: Human Rights Symposium  (21 &  22.10.11)
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) is 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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