Public Interest Litigation Update: 04Th October 2010

Public Interest Litigation Update: 04th October 2010

Quick Links

PILS Project Conference

Healthcare cases

Immigration and asylum cases

Race and ethnic minority cases

LGBT cases

Challenges to the Legal Services Commission’s civil legal aid contracts tender process

Challenge to the UK budget ongoing

Other public interest cases

Legislative updates

Other PIL news

PILS Project Conference

The PILS Project will be holding its first conference, Developing Public Interest Litigation: the International Experience, at the Holiday Inn on Ormeau Avenue on Monday 15th November 2010.

Speakers include the Lord Chief Justice, the Right Honourable Sir Declan Morgan, former Australian High Court judge the Honourable Michael Kirby AC CMG, Dr Ann Skelton of the Centre for Child Law in South Africa, Brad Seligman from the Impact Fund in the US and Michael Farrell from FLAC (Free Legal Advice Centres) in the Republic of Ireland.

CPD points have been allocated for this event.

Click here for further information and to download the conference booking form.

Healthcare cases

Judgment published in case against the Western Health and Social Care Trust

On the 3rd of September 2010 Mr Justice Treacy in Belfast’s High Court delivered his judgment that the Western Health and Social Care Trust acted in breach of its duty to carry out assessments and provide services to the carers of disabled children. The judgment is now available here.

Judicial review of closure of hospital A&E fails

An application for judicial review of the Health Minister’s decision to close the A&E department in the Mid-Ulster Hospital has been refused on the basis that it was not reasonable to expect it to remain open when clinicians said it was unsafe to do so. See the BBC News article on the case here and read the full judgment here.

Immigration and asylum cases

Northern Ireland High Court makes declaration that the Secretary of State has discretion to permit temporary asylum support while an appeal against refusal of asylum support under Section 95 is pending.

Read the full judgment here.

Race and ethnic minority cases

Councils reminded of duty to consider the impact on racial groups when proposing redevelopment

In a decision on the 22 June 2010 the Court of Appeal revoked planning permission for the redevelopment of Wards Corner in London finding that the local council had acted unlawfully by not properly considering the impact on racial groups within the community before authorising the development plans. You can read the full judgment here and the press release from the Equality and Human Rights Commission, which intervened in the case, here.

European Commission threaten legal action against France

The European Commission have published a statement threatening legal action against France for not having correctly transposed the Free Movement Directive into national legislation. This comes following widespread uproar over France’s dismantling of Roma camps and repatriation of up to a thousand Bulgarian and Romanian Roma citizens last month. Read the Commission statement here.

There are also some interesting analyses of the Commission’s decision to base potential legal action on France’s transposition of the Directive rather than legal action expressly based on the ban on discrimination in the EC Treaty and the free Movement Directive. See particularly a post by Darren O’Donovan on the Human Rights in Ireland Blog here and a post on the UK Human Rights Blog here.

LGBT cases

European Court finds child maintenance rules discriminatory against same-sex couples.

Child maintenance rules in operation prior to the introduction of the Civil Partnership Act in 2004 were found to discriminate against same sex couples by the European Court of Human Rights. The case reinforces the unlawfulness of discriminating against a person on the grounds of his/her sexual orientation.

Read the judgment here and an excellent summary by the UK Human Rights Blog here. See also the press release by Liberty, which represented the applicant at the European Court, here.

Lesbian Air Force Major reinstated after being discharged under “don’t ask, don’t tell”

The American Civil Liberties Union has won a case on behalf of a lesbian Air Force Major who was discharged under the US “don’t ask, don’t tell” policy, which allowed gays and lesbians to serve in US military. A court in Seattle reinstated Major Margaret Witt on the grounds that her sexual orientation does not negatively impact upon unit morale or cohesion. Click here for further information.

This follows the recent court judgment that found that the “don’t ask, don’t tell” policy is unconstitutional (see a summary of that case here and the judgment here).

Challenges to the Legal Services Commission’s civil legal aid contracts tender process

Law Society win challenge to legal aid tender process

The Law Society in England has won its challenge to the Legal Services Commission’s handling of the tender process for family law legal aid contracts. The High Court ruled that the LSC’s process was “irrational” and that they had acted “arbitrarily and unfairly”. The Law Society has hailed this as a victory for thousands of families who would have been left without legal assistance in family law issues. The court has not yet decided on what relief should be provided but according to the UK Human Rights Blog the Commission is now likely to either appeal the decision or rethink the tender process.

See the Law Gazette article here, the Law Society’s press release here, the UK Human Rights Blog analysis here and more detail on the judgment (which has not yet been published) here.

A number of other challenges to the Legal Services Commission’s legal aid tender process remain ongoing

See articles on the cases by the Law Gazette here and here. The Legal Services Commission has already committed to reviewing the impact of the tender process in each of its areas of procurement; further details here.

Challenge to the UK budget ongoing

In our last PIL Update we alerted you to the Fawcett Society in England’s application for judicial review of the UK budget. A date has still not been set for the hearing but any developments will be included here in future. Read information on the challenge from the Fawcett Society here and an overview of the challenge from the group’s legal representatives, Russell, Jones & Walker, here.

Other public interest cases

Former NI Environment Minister’s Assembly statements found by court to have unlawfully changed planning policy

The High Court in Belfast has ruled that statements made by former Environment Minister, Sammy Wilson, in the Assembly amounted to an unlawful change to planning policy. The Department of the Environment argued that the statements, in which the Minister told planners to give more weight to economic considerations in planning, merely offered clarification to an existing policy framework.

Mr Justice Treacy disagreed however and decided that they went beyond mere advice or information and “were plainly intended… to bring about a material change in the way planning applications were determined and to influence the outcome”. The judge ruled that a proper consultation should have been carried out before such a statement was made.

See the full judgment here.

Eviction of council tenants was breach of human rights

The European Court has ruled that the UK violated the human rights of short-term tenants of council property whose leases had been terminated. According to the UK Human Rights Blog the decision will not necessarily help evicted tenants in similar situations however, although it may encourage courts to take their personal circumstances into account when deciding if they should be evicted.

Read the full judgment here and the UK Human Rights Blog summary of the case here.

Challenge to the rules of covert surveillance of detainees in private consultations fails

In this case the compatibility of the rules of covert surveillance of detainees meetings with their legal representatives, and other relevant consultations, with the European Convention on Human Rights, was challenged. Read the full judgment here.

Police breached man’s rights by revealing his private sexual practices to his employer

The High Court in this case decided that the police violated a man’s ECHR Article 8 right to private and family life, by revealing to his employer his private sexual practices. The police argued that they had done so in order to prevent possible crimes against young women but the court decided that the detective had failed to obtain a “clear and professionally mediated view of the risk”. Read the full judgment here and a summary of the case here.

European Court rules media premises are exempt from police searches

On 14 September 2010 the European Court of Human Rights ruled that media premises are exempt from police searches. The court found that police cannot search media premises or seize journalistic materials unless they can show it is absolutely necessary in the investigation of a serious crime and have obtained a judicial warrant. The full judgment can be found here, a summary of the judgment here and comment on the case by the Open Society Justice Initiative here.

NI student challenges QUB degree classification appeals process

An electrical engineering graduate from Queens University Belfast has applied for judicial review of the university’s decision not to allow him to appeal his 2:2 degree classification because he had already graduated. The student wants to appeal the grade on the basis that if he had received better supervision during his course he would have obtained a 2:1. The application is due to be heard next month

See the BBC News article on case here, an article by the Guardian which looks at other cases taken by students against their universities here, and an article on the Education Law Blog which considers the courts’ approach to such challenges here and suggests that the issue may be reverted to the Office of the Independent Adjudicator.

ACLU sues California over public school fees for students

The American Civil Liberties Union (ACLU) has filed a class action lawsuit against the state of California on behalf of two public school students who seek to compel the state to establish a system for monitoring school districts and ensuring they comply with the right under the California Constitution of free and equal education. For more information click here.

Legislative updates

GB Equality Act comes into force

The majority of the provisions in the Equality Act come into force on 1st October in Great Britain. The Act brings together in one place 40 years of equality legislation to provide protection from discrimination on the basis of age, disability, sex, race, religion, belief and sexual orientation.

For further information on the act including a starter kit and summary by the Equality and Human Rights Commission click here. See also a practice note by the Law Society in England and Wales here. The Guardian summarises the key aspects of the Act here and the UK Human Rights Blog has posted a useful analysis here.

Despite extensive consultations in 2001 and 2004, a single equality bill for Northern Ireland is still awaited.

10th birthday of the Human Rights Act

On 2nd October 2010 the Human Rights Act celebrated its 10th birthday. Click here and here to read articles in the Guardian on 10 years of the Act.

Changes to murder laws in England and Wales come into force

Changes to the law of murder come into force today in England and Wales. The main change is the introduction of a new partial defence of “loss of control” which, according to Joshua Rozenberg in the Guardian will improve the position of battered women who kill their partners.

See the Guardian article here.

Consultation on the default retirement age ongoing

The consultation in England and Wales on the default retirement age is ongoing. The closing date for responses to the consultation is 21st October 2010. Background information on the issue can be found here and the consultation document itself can be found here.

Liberty warns government that English language tests for spouses may breach human rights and race relations laws

UK Human Rights organisation, Liberty, are challenging Home Office plans to introduce English language tests for those coming to Britain to marry UK citizens. The proposed pre-entry test for a spousal visa would apply only to those coming from non-English speaking countries and, according to a legal opinion commissioned by Liberty, could amount to a breach of the right to private and family life, and may also be discriminatory. See the Guardian article on the issue here.

French debate contentious Immigration Bill

French MPs will debate the contentious new Immigration, Integration and Nationality Bill tomorrow, Tuesday 5th October. The Bill includes plans to strip people of foreign origin of their French nationality if they attack police or other state employees and the authority to expel members of European Union countries, even within the three month free movement period under the Schengen Pact, if they “abuse” this right to free movement or are “an unreasonable burden on the social security system”. Read a summary of the Bill here.

California introduces new law to combat discrimination against parents with disabilities.

A new law signed in California last month, which will come into force in January 2011, aims to combat discrimination faced by parents with disabilities in custody proceedings. The full text of the law can be found here and an overview of its implications is provided on the Human Rights in Ireland Blog article here.

Other PIL news

The Equality and Human Rights Commission warns the government that its guidance on torture may be unlawful

The Equality and Human Rights Commission has written to the Prime Minister, David Cameron, to express its “serious concerns” about the lawfulness of the government’s new guidance on torture. The Commission warned that failure to amend the guidance may result in judicial review proceedings being issued. See the EHRC’s press release here

A government spokesperson has responded to insist that “the government is confident that guidance is legal and consistent with domestic and international law”. See the Guardian article quoting the spokesperson here.

Spain becomes first European country to ratify the UN Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

For further information see the recent post from the Public Interest Law Alliance here.