Public Interest Litigation Update: 20th September 2010
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Challenge to the UK budget
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
Other public interest cases
Legislative updates
Other PIL news
Challenge to the UK budget
The Fawcett Society in England has filed an application for judicial review
of the UK budget, arguing that the government failed in its legal duty to
assess whether spending cuts would hit women unfairly. 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.
Also of interest may be the letter from Theresa May, Minister with
responsibility for equality, to the Chancellor, George Osborne, which
warns that the cuts could widen inequality in Britain and ran a “real risk” of
breaking equality laws, which can be found here. See also the new blog
set up by the Joseph Rowndtree Foundation which focused on cuts,
spending and the impact they have on society. You can access it at
http://www.jrf.org.uk/blog.
The Northern Ireland Executive is currently undertaking its own review of
public spending and the outcome of that review will be announced on the
20th October 2010.
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Healthcare cases
 Judge finds Western Health and Social Care Trust acted in breach
of its duty
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. Three declarations were made:
1. The duty on the Trust includes a duty to provide a range and level of
personal social services to the children in need within its areas and to
the families and carers of those children in order to safeguard and
promote the welfare of the children and the upbringing of those children
by their families.
2. The Trist was in breach of its duty by failing to carry out an assessment
on the applicant’s mother as the carers of a disabled child within a
reasonable time following her request to do so on 29 January 2009.
3. The Trust acted in breach of its duty by failing to carry out assessments
within a reasonable time of carers of disabled children who had
requested such assessment during the period 2007-2010.
The judgment is attached.
 Judicial review of closure of hospital A&E
A pensioner is seeking a judicial review of the Health Minister’s decision to
close the A&E department in the Mid-Ulster Hospital. Click here for further
information.
 Court consider when a woman lacks capacity to decide whether to
use contraception
In this case the High Court gives guidance on the appropriate tests to be
applied in determining whether a woman has capacity to refuse or accept
contraception. See the UK Human Rights blog summary here and the full
judgement here.
 Woman with learning disabilities forced to have life-saving
surgery
The Family Court has ordered that a woman with learning disabilities be
forced under sedations to undergo surgery in order to save her life. See a
summary of the case here and the judgment here.
 Health trust has no operational obligation to voluntary patients
The Court of Appeal has ruled that health trusts do not have operational
obligations under ECHR Article 2 to take all steps to prevent the suicide of
voluntary patients. See summary and analysis of the case here and
judgment here.
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Immigration and asylum cases
 Fast track deportation system for asylum seekers illegal
The UK’s deportation fast track system for asylum seekers, which
deported them with little or no notice, has been ruled illegal by the High
Court. See a summary of the case here and the judgment here.
 UK must provide asylum seekers with minimum standards of
dignity
The Supreme Court has ruled that the UK must provide minimum
standards of dignity to asylum seekers, including the right to work, whether
or not their first asylum application has failed. See a summary of the case
here and the judgment here. The Government is already considering
restricting this right however by limiting the types of work asylum seekers
can apply for. See more information on this here.
 European Court of Justice to assess legality of transferring
asylum seekers between member states
The Irish High Court has referred an asylum appeals case to the European
Court of Justice to test the legality of transferring asylum seekers between
EU member states that have different standards of protection for refugees.
See the Irish Times article on the case here.
 Judicial review on access to social welfare decisions in Ireland
A Somali refugee has been given leave in the Irish courts to apply for
judicial review of the Social Welfare Appeals Office’s failure to provide her
with copies of previous social welfare decisions relevant to her case. The
hearing is listed for October 13th 2010. See a summary of the case by the
Public Interest Law Alliance here
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Race and ethnic minority cases
 Segregation of Roma school children in Hungary illegal
A Hungarian court has found the segregation of Roma school children to
be in breach of public law on education with regards to the equal treatment
of Roma and non-Roma children in school. Find further information on the
case here and an interesting article on Roma children and the right to
education in Eastern Europe here.
 France’s expulsion of Roma under EU law
Viviane Reding, the EU Justice Commissioner, has indicated that France
may face infringement proceedings and a fine from the European Court of
Justice in respect of its dismantling of Roma camps and repatriation of up
to a thousand Bulgarian and Romanian Roma citizens last month. See the
Commissioner’s statements here and here, and an analysis of the
possibility of such action by the UK Human Rights Blog here.
Other useful links on the issue include the Council of Europe’s information
webpage on Roma rights here, Council of Europe Human Rights
Commissioner, Thomas Hammarberg’s appeal to European states not to
stigmatise Roma and to come to terms with their responsibility for the
current situation here, and the European Commission’s April 2010 report
on Roma in Europe here.
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LGBT cases
 Transsexual entitled to pension of acquired gender
The Court of Appeal has ruled that a transsexual was entitled under
European Law to obtain legal rights, such as a pension, associated with
her acquired gender. See a summary of the case here and the judgment
here.
 Irish government drops appeal in historic transgender case
The Irish government has withdrawn its appeal to the Supreme Court in
the case of transgender woman Lydia Foy. It has accepted a High Court
ruling that Irish law on transgender rights is in breach of the European
Convention on Human Rights (ECHR), following a 13 years battle by Ms
Foy. See FLAC’s briefing note on the case here.
 Catholic adoption agency loses bid to bar gay parents from
service
This case has arisen because of the 2007 Sexual Orientation Regulations
which make it unlawful for service providers to discriminate on grounds of
sexual orientation. The Charity Commission for England and Wales has
refused the request of a Catholic adoption agency to change their
charitable objects in order to continue providing adoption services to
married heterosexual couples only. The Commission’s decision follows a
recent High Court judgment which instructed the Commission to
reconsider its initial refusal to the adoption agency in light of Article 14 of
the European Convention on Human Rights.
See the High Court
judgment here, the final decision of the Charity Commission here and a
summary of the entire case here.
 US military “don’t ask don’t tell” policy ruled unconstitutional
A district court in California has ruled that the Pentagon’s “don’t ask, don’t
tell” policy, which allowed gays and lesbians to serve in US military, is
unconstitutional and has granted an injunction to prevent it being further
enforced. See a summary of the case here and the judgment here.
 Proposition 8 ban on gay marriages overturned by California
federal court
A federal court in California has struck down a ban on gay marriage in the
state. This has been hailed as the first step on a path to a US Supreme
Court test case on the issue. See the judgment here, an in-depth analysis
of the case and an Irish comparative here and a UK summary and
comparative here. See also the UK Human Rights Blog’s article on gay
marriage here.
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Challenges to the Legal Services Commission’s
civil legal aid contracts tender process
 Law Society challenge legal aid tender process
The Law Society in England has launched a challenge to the Legal
Services Commission’s handling of the tender process for family law legal
aid contracts, alleging that it impedes access to justice for the most
vulnerable. The judicial review is listed for the 21 st and 22nd September
2010. See the Law Society’s summary of the challenge here and their
detailed grounds for judicial review here.
 London law firm alleges sex discrimination in legal aid tender
process
A London firm has launched judicial review proceedings alleging sex
discrimination against the Legal Service Commission’s refusal to award
them immigration and community care legal aid contracts. See the Law
Gazette’s article on the case here.
 Legal Services Commission avoids challenge over social welfare
legal aid contract
The Community Law Partnership (CLP) also launched a judicial review of
a decision of the Legal Services Commission in England and Wales, this
time over the Commission’s decision not to award them a social welfare
contract. The judge in the Directions Hearing stated that the criteria used
in the decision-making was “utterly absurd and totally irrational” and the
LSC has since indicated that it would offer the CLP a contract and the
judicial review has been withdrawn. See the Law Gazette’s article on the
case here.
 Legal Services Commission to review tender process
Three more judicial reviews and two further pre-action proceedings have
been initiated by firms in England. See the Law Gazette’s article here.
The Legal Services Commission have already committed to reviewing the
impact of the tender process in each of its area of procurement; further
details here.
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Other public interest cases
 European Court orders Irish government to pay compensation for
delay in legal proceedings
The Irish government has been instructed to pay compensation to former
Maze Prison escapee Brendan McFarlane for violating his right to a fair
trial following 14 years delay in bringing criminal proceedings. The Court
found that Irish law does not provide an effective remedy for unjustified
delays in such proceedings. For the judgment click here and for the
European Court’s summary of the case click here.
 Greece found in breach of rights to freedom of religion by the
European Court of Human Rights
The requirement to reveal religious convictions in order to avoid taking a
courtroom oath was found to be in violation of the applicant’s freedom of
religion under Article 9 of the European Convention.
For further
information click here.
 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.
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Legislative updates
 NI Public Assemblies Bill drastically amended following public
protests
The most controversial elements of the Public Assemblies, Parades and
Protests Bill have been dropped after a wave of protest. The requirement
that all open air and other public meetings of 50 people or more provide 37
days notice has been dropped. See the press release from the Office of
First Minister and Deputy First Minister regarding the changes 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.
 Director of Public Prosecutions supports reform of murder laws
The Director of Public Prosecutions in England and Wales, Keir Starmer,
has indicated his support for reform of murder laws, including the
introduction of different degrees of murder akin to the system in the US.
See the Guardian’s article on the issue here and the UK Human Rights
blog’s analysis of such changes here.
 Double jeopardy principle in Ireland eroded by new law
The double jeopardy principle, under which a person cannot be tried for
the same crime twice, has been eroded under Irish law with the coming
into force of the Criminal Procedure Act 2010. The Act allows retrials in
certain circumstances in serious criminal cases. See an analysis of the
Act here.
 French Senate approves ban on face veils
The French senate have approved a ban on wearing Islamic face veils
anywhere in public. After it has been ratified the French Constitutional
Court will have six months to study the new law to make sure that it does
not violate any aspects of the state’s constitution, before it comes into
effect. A challenge may still be possible to the European Court of Human
Rights however. See an overview by the BBC of how France and other
European states are dealing with the issue here.
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Other PIL news
 Northern Ireland Attorney General calls for cost reform and
increased pro bono activity within the legal profession
Speaking at the Northern Ireland Human Rights Commission’s annual
conference, the Attorney General, John Larkin, has identified the need for
a reform of the costs system in Northern Ireland court cases.
Under the current system the losing side may be liable for the costs of the
winning side, which is a risk that few applicants are in a position to take
given that the cost of a single judicial review can run into tens of
thousands. Applicants may apply for a Protective Costs Order (PCO)
which can limit their liability for costs if the case raises an issue of public
interest and importance, but there have been very few PCOs applied for
and indeed granted to date in Northern Ireland.
The statement by the Attorney General, the government’s chief legal
advisor, is therefore welcomed and in particular his recognition of the need
to “reform…the costs regime to limit amounts that can be recovered and to
provide that people of modest means won’t be required to pay the bills of
the wealthy”.
Also suggested during the presentation was the need for senior lawyers to
play a greater role in offering pro bono services.
See the BBC’s article on the speech here and see the Public Interest Law
Alliance’s comprehensive overview of cases, articles and reports on the
use of Protective Costs Orders here.
 Foreign Secretary announces establishment of human rights
advisory body
William Hague, the Foreign Secretary, has announced the government’s
decision to create an advisory body of independent human rights experts,
including NGOs, to provide information to the government on the human
rights situations in different countries and the conduct of UK foreign policy.
See the Foreign Secretary’s speech here.
 Government report launched on the implementation of European
Court judgements
The Ministry of Justice has launched its response to the Joint Committee
on Human Rights’ report on the UK’s implementation of European Court of
Human Rights judgments. Read the Ministry of Justice’s report here, the
JCHR’s report here and a useful article on the issue here.
 Baroness Hale comments on Supreme Court diversity, different
approaches to equality and the role of socio-economic rights
Baroness Hale, the first and only woman to sit in UK’s highest court of
appeal, has given an interesting interview on the Supreme Court Blog. In
the interview she expresses the view that the makeup of the Supreme
Court is not diverse enough and highlights what she sees as a mismatch
between European Community Law and human rights approaches to
equality. Baroness Hale also identifies socio-economic rights, and other
so-called positive rights, may be an important area of law in the coming
decade. See the full text of the speech here and the UK Human Rights
Blog summary here.
 The European Union as a signatory to the European Convention?
An interesting article on the UK Human Rights Blog here and another by
Donncha O’Connell here look at the possibility and potential
consequences of the European Union becoming a signatory to the
European Convention on Human Rights following the Lisbon Treaty.
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