Public Interest Litigation Update: 17th January 2011
Welcome to the PILS Project’s bi-weekly Public Interest Litigation Update. The Update provides you with information on current public interest cases, judgments, news and events.
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Mental Health
Education
Prisoners’ rights
Discrimination
Immigration and Asylum
LGBT
Healthcare
Ethnic minorities
Environment
Other public interest cases
Pro Bono Update
Legal aid reform
Budget & Spending Cuts
Legislative updates
Events and speeches
Other PIL news
Mental Health
Leave for judicial review granted in Muckamore detention case
Leave has been granted in Northern Ireland’s High Court for judicial review proceedings against the Department of Health, Social Services and Public Safety (NI) challenging the delayed discharge of patients from MuckamoreAbbeyHospital in Antrim.
The Law Centre is acting on behalf of clients who have been deemed fit for discharge and resettlement in the community but who have been waiting, in one case, for more than three years and, in another, for more than eight years for a home in the community. The Department missed its own deadline to resettle all long-stay patientsin 2002 and a second deadline of 2013 has now been set.
According to Louise Arthurs, Legal Advisor in Law Centre (NI) ‘This is an important test case to establish the duties owed by the Department of Health to resettle people with a learning disability in the community’.
The case has been supported in part by the PILS Project.
Education
European Court rule in favour of UK in right to education case
The European Court of Human Rights has ruled in favour of the UK in a case taken by a student who was excluded from school for allegedly setting fire to a bin on school property. The judgment provides useful guidance on circumstances in which school exclusions are compatible with the ECHR and the content of the right to education in Article 2 of Protocol 1 to the Convention.
Read the judgment here and an analysis of the case here.
Article on university teaching standards and the right to education
A recent article on the Human Rights in Ireland Blog examines the right to education in the context of higher education in the UK. The article considers among other things the recent unsuccessful case taken by a student against Queens University Belfast and the potential effects of the forthcoming decrease in state funding for universities coupled with possible rises in tuition fees.
Read the article here and the judgment in the case taken against QUB here.
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Prisoners’ rights
UK Government announces plans for prisoners’ voting rights
On the 17th December 2010 the UK Government announced its proposals for prisoner voting rights, five years after the decision in Hirst v UK (No.2)in which the European Court of Human Rights held that the 140 year old blanket ban on prisoners’ voting violated ECHR Protocol 1 Article 3.
It is proposed that all prisoners sentenced to less than four years will retain their right to vote while prisoners sentenced to four years or more will automatically be banned from voting. An article in the Guardian estimates that over 28,000 prisoners will be permitted to vote as a result.
Read the Cabinet press release here, the judgment in Hirst v UK (No.2)here and the Guardian article here.
Delays to prisoner release must be lawful
The Court of Appeal for England and Waleshas found that delay in a prisoner’s release to allow a court to hear an appeal against the decision to release him was unlawful and in breach of Article 5 of the European Convention (right to liberty). This means that prisoners must be released on time unless a court explicitly rules otherwise.
Read the full judgment here and an overview of the case here.
Undue delay in parole hearing breached ECHR Article 5
The Court of Appeal has ruled that undue delay in a Parole Board hearing, which resulted in a prisoner being detained for 10 months more than he should have, breached his rights under ECHR Article 5.
Read the judgment here and an overview of the case here.
No human rights damages for 30mins fresh air per day
A prisoner’s claim for damages under the human rights act on the grounds that he was given only 30 minutes of fresh air per day, rather than the required 60 minutes, has been refused by the High Court. The judgment sets out a number of criteria to be considered in taking a claim for damages for maladministration under the Human Rights Act.
Read the judgment here.
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Discrimination
Employment Tribunal find BBC discriminated on grounds of age
An Employment Tribunal in London has upheld the claim of Miriam O’Reilly that she was discriminated against because of her age afterthe Countryfile presenter was dropped when the show moved from a Sunday morning to a primetime slot.
A copy of the judgment can be downloaded here, a Guardian article on the case here and the BBC’s statement in response to the ruling here.
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Immigration and Asylum
Detention of children in asylum centres to end
On December 16th 2010, Deputy Prime Minster, Nick Clegg, pledged to end the practice of child detention in immigration centres by May 2011. The family wing at Yarls Wood immigration centre was to be closed immediately. Click here to read Nick Clegg’s statement and here to read an article in the Guardian about it
Detention of asylum seekers and their children unlawful
The High Court in England and Wales has found that the detention of two female asylum seekers and their children at Yarl’s Wood immigration centre last year was unlawful. Although the judge in the case found the UK Border Agency’s (UKBA) current policy on detaining families with children to be notunlawful, he found that the UKBA had failed to apply their own policy “with the rigour it deserves”. The applicants’ Article 5 and 8 rights (to liberty and to private and family life) were found to have been violated.
Read the judgment here and an overview of the case on the UK Human Rights Blog here.
LGBT
Civil Partnerships introduced in Ireland
A new law came into effect in the Republic of Ireland on January 1st 2011 recognising gay couples and allowing for civil partnerships. According to the Irish Times today the first couple to have their civil partnership recognised by the State are a gay couple from Northern Ireland. The first civil partnerships are expected to take place from April onwards (couples must give three months notice of their intention to form a civil partnership) .
Read the article here.
European Court case launched to challenge bans on gay marriage and heterosexual civil partnership
As part of the “Equal Love” campaign a case has been filed at the European Court of Human Rights to challenge existing legislation which prevents gay couples from getting married and heterosexual couples from entering civil partnerships. Read more about the campaign here.
US repeal ‘don’t ask don’t tell’ policy
In December the US Senate voted to strike down the “don’t ask don’t tell” policy which banned homosexuals from serving in the military. The repeal of the policy now was then confirmed by President Obama who has been a longstanding opponent of the ban. Read a post on the UK Human Rights Blog on the repealhere, a New York Times article on President Obama’s confirmation here and another UKHRB post here which compares the US situation to that of the in the British Army where gay soldiers have been allowed to serve in the Military since 2000.
Sexual orientation restored to UN extrajudicial killings resolution
The reference to sexual orientation in a United Nations resolution on extrajudicial, summary and arbitrary executions has been restored. The reference was removed for the first time since the resolution was passed in 1999 following an amendment by the African Group and the Organisation of the Islamic Conference. A US proposal to reinsert the reference was passed by the General Assembly on December 22nd 2010.
Read the UK Human Rights Blog posts on the issue here and here, and a press release from the International Gay and Lesbian Human Rights Commission here.
Healthcare
Irish judge orders blood transfusion against wishes of parents
A judge in the Republic of Ireland’s High Court has ordered the administration of a blood transfusion to a three month old baby against the wishes of the child’s parents who are Jehovah’s Witnesses.
Read the full judgment here and an analysis of the case by Eoin Daly on the Human Rights in Ireland blog here.
Irish ECtHR abortion case: analysis
The Grand Chamber of the European Court of Human Rights recently ruled that Ireland must change its law on abortion to make it more accessible for women whose lives are at risk. The Human Rights in Ireland blog has since published a number of articles examining the judgment and its implications for Irish law and society. Click to read articles 1, 2, 3, 4, 5, 6, 7, 8 and 9.
Read the full judgment in A, B & C v. Irelandhere.
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Ethnic minorities
Call for journal submissions on Roma rights
The European Roma Rights Centre is accepting articles and other submissions for the next edition of its Roma Rights journal on the topic Roma and Politics: A chance for change? The deadline for submissions is 20th February 2011 and may include book reviews, interviews, conference reports and articles. For more information click here.
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Environment
Major legal challenge to Cairngorms housing proposals
Three environmental groups have launched a major legal challenge against proposals to build 1500 new homes in the CairngormsNational Park. It is claimed that the housing allocations are so large and environmentally damaging that the park authority is failing in its legal duty to “conserve and enhance the natural and cultural heritage of the area”.
Read a BBC article on the challenge here and a Scottish newspaper article here.
Other public interest cases
Court of Appeal clarifies guidelines on legal aid for inquests
The Court of Appeal for England and Wales has upheld the decision of the High Court to quash the decision of the Legal Service Commission not to recommend legal aid for a mother to be represented at the inquest into the death of her 10 year old son. The judgment lays down guidelines for when legal representation for relatives of the dead should be funded at inquests and how this fits with the State’s duties to investigate deaths under the European Convention.
Read the judgment here and an analysis on the UK Human Rights Blog here.
Court rules that public authorities cannot rely on criminality of claimant to excuse breaches of human rights
The Court of Appeal for England and Wales has ruled that the family of a drug smuggler, who died from cocaine poisoning after swallowing 116 sealed bags of the drug and being subsequently arrested coming through airport customs, are entitled to bring a claim against the customs system. The family are arguing under Articles 2 (right to life) and 3 (right not to be treated inhumanely or degradingly) that the customs system could have done more to save his life and prevent him from suffering.
Allowing the challenge to proceed, the Court made it clear that the criminality defence, i.e. a wrong-doer should not profit from his wrong-doing, does not automatically rule out human rights claims. Human Rights group JUSTICE, who intervened in the case, argued that the case demonstrates that “human rights are not just for the virtuous”.
Read the full judgment here, an analysis of the case on the UK Human Rights Blog here and JUSTICE’s intervention here.
European Court declares failure to disclose material in criminal trial for ‘public interest’ reasons not a violation of fair trial
The European Court has found against a man who was convicted for terrorism related offences in Northern Ireland, who alleged thatthe non-disclosure of prosecution papers to the defence during his trial on grounds of public interest immunity was in breach of Articles 6 of the European Convention on Human Rights (right to a fair trial).
Read the full judgment here.
European Court hears Max Mosley privacy case
On January 11th the European Court of Human Rights heard a case taken by former president of motorsport’s governing body FAI. Part of Mosley’s case is the argument that newspapers and other publishers should be required to warn individuals before writing about their private lives under Article 8 of the European Convention.
Read the European Court press statement on the case here, a Guardian article on the case here and an analysis by broadcaster and journalist, Joshua Rozenberg, of the case by podcast here.
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Pro Bono Update
Law firm helps to initiate legal aid project
Hogan Lovells’ pro bono team has helped to develop an initiative urging law firms to release unclaimed client funds to the Access to Justice Foundation. In England and Wales law firms can donate unclaimed sums of money of under £50 to charity without formal approval. Many firms donate such funds to the Access to Justice Foundation, which receives and distributes money to help provide free (pro bono) legal assistance in England and Wales. The “It’s Not Just Peanuts” campaign urges law firms to release unclaimed funds in order to help the Access to Justice Foundation assist legal advice charities in the face of cuts to the legal aid budget.
Read more about the project here and more about the Access to Justice Foundation here.
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Legal aid reform
Legal aid cuts
On 13 September 2010 Justice Minister David Ford announced a review of legal aid provision in Northern Ireland. On 17 November the Review Team published an agenda-setting and discussion document which outlined a fundamental review of key aspects of criminal and civil legal aid in Northern Ireland. Included is a lengthy discussion on the role of the voluntary sector in providing legal services. The deadline for making written submissions to the Review Team is 31 January 2011. An interim progress report is expected by the middle of March 2011 with a final report and recommendations due by the summer of 2011.
To read the Discussion document click here.
The Ministry of Justice’s consultation on the reform of legal aid in England and Wales is still ongoing with two documents currently out for consultation. The first which is a consultation on the reform of legal aid in England and Walescan be found here . The second, a consultation on the cost of civil litigation in England and Wales has also been launched and can be read here. The closing date for both consultations is 14 February 2011.
Campaign against legal aid cuts launched
A new campaign established by a number of charities, legal and advice agencies, politicians, community groups and members of the public in England was launched on January 12th 2011 to combat cuts to legal aid. The Justice for All campaign aims to ensure everyone is treated fairly under the law, no matter who they are, how much money they have or where they live.
Click here for further information.
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Budget & Spending Cuts
Disability cuts ‘could breach law’
It has been alleged by disability lawyer, Mike Charles, that government plans to replace Disability Living Allowance (DLA) with a new Personal Independence Payment could be unlawful if they deny individuals the right quality of life. Read the BBC article here and another in the Guardian here.
Human Rights Commissioner warns that austerity budgets will cause further child poverty
Thomas Hammarberg, the Council of Europe Commissioner for Human Rights, has warned that austerity budgets across Europe will inevitably push more people into destitution. He considers the example of the Britain, where one quarter of children live in poverty, and argues:
“Budgets which reduce the underpinning of the school and health care systems are ill-advised and would only plant the seeds of more serious problems in the future…(and) also constitute a breach of the pledge made to children in the UN Convention on the rights of the Child – that we should allocate the maximum extent of our available resources to children and their rights”
Read the full statement here.
Northern Ireland budget consultation
On 15th December the draft Northern Ireland Budget for 2011-15 was published. It will be the responsibility of individual departments to provide specific information in relation to their detailed spending plans
The consultation on the draft budget will close on the 16thth February 2011. Click here for the consultation document or contact .