Public Interest Litigation Update: 22Nd March 2011

Public Interest Litigation Update: 22nd March 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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v Prisons and prisoners’ rights

v Discrimination

v Mental health

v Healthcare

v Travellers

v Immigration and asylum

v European Union law

v Welfare Reform

v Education

v LGBT

v Other public interest cases

v Protective Costs Orders

v Pro Bono

v Legislative updates

v Legal aid reform

v Other PIL news

v Events and speeches and jobs

Prisons and prisoners’ rights

v Government asks European Court to reconsider ruling on prisoners’ voting rights

In the latest twist in the prisoners’ voting rights story, the UK Government has asked the European Court to refer to the Grand Chamber the November 2010 Greens and MT judgment, which reaffirmed the Court’s ruling in Hirst (No. 2) that a blanket ban on prisoners voting is in violation of Article 3 of Protocol 1 of the European Convention.

The Government argue that the margin of appreciation should be broad enough to allow a blanket ban on prisoners voting, that the imposition of a custodial sentence in UK courts meets a level of seriousness to warrant disenfranchisement and that recent debates in Parliament have demonstrated support for the ban.

Notably, one of the applicants in the Greens and MT case has also sought a referral of the case to the Grand Chamber. Read the UK Human Rights Blog analysis of the move here and the request by the UK Government here.

v Response to review of the Northern Ireland Prison Service

Dr Lynda Moore and Professor Phil Scratton have published, on the Human Rights in Ireland Blog, their response to the Interim Report of the review of the Northern Ireland Prison Service. Read the article here and the Interim Report here.

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Discrimination

v European Court rules HIV discrimination is unlawful

The European Court has found against Russia in a case concerning the refusal of a residence permit to an Uzbek man solely because the applicant was HIV-positive. The Court found a violation of ECHR Article 14 read with Article 8, i.e. that the man had been discriminated against in his enjoyment of his right to private and family life.

Although a specific right to health is not mentioned in the ECHR the Court found that HIV was a physical disability or health impairment within the scope of the prohibition on discrimination. The Court also ruled that “people living with HIV are a vulnerable group with a history of prejudice and stigmatisation and… the State should be afforded only a narrow margin of appreciation in choosing measures that single out this group for differential treatment”.

Read the judgment here and a summary of the case on the ECHR Blog here

v Care worker awarded compensation for sex discrimination

A female care worker from Belfast has been awarded £9,500 by the Industrial Tribunal for unlawful sex discrimination by her previous employers, the Provincial Care Agency in Carryduff. The ruling was based on their delay in providing her with a reference after she resigned from her post and their treatment of her while she was seeking the reference. The case was supported by the Equality Commission for Northern Ireland. Read more about the case here.

v European Commissioner for Human Rights highlights continued underpayment of women

In his latest Comment Thomas Hammarberg, the European Human Rights Commissioner, has highlighted the pay gap that remains across Europe between men and women as well as the ‘glass ceiling’ that prevents many women from career advancement. Read the Comment in full here and the Council of Europe position paper on women’s rights here.

Mental health

v Court highlights gap in law for care of people without mental capacity

The Northern Ireland Divisional Court has highlighted a gap in Northern Ireland’s legislation in that it does not permit the making of direct payments to a person who does not have the mental capacity to consent to such an arrangement. While the anomaly was resolved in England and Wales by the Health and Social Care Act 2008, no change has been made in Northern Ireland. Lord Justice Girvan did, however, set out the guiding principles to inform decision-making on this issue and suggested that the Court appointment of a controller, to manage the patient’s property and affairs, could resolve the situation. Read the judgment here and the Court summary here.

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Healthcare

v Landmark ruling in asbestosis compensation claim

The Supreme Court has upheld a £240,000 compensation claim for negligent exposure to the risk of asbestos dust brought against a local authority by the family of a woman who died from mesothelioma after being exposed to asbestos wh

Ilst at school. The Court found that while it was not proved that the exposure had caused the woman’s mesothelioma, it had “materially” increased the risk of developing it. Read an article on the Law Society Gazette which looks at the implications of the judgment here.

Travellers

v Traveller family successfully appeals planning decision

A Traveller family has won their appeal against a decision of the Planning Service refusing them retrospective planning permission for the site they are living on near Portadown.

The decision follows a successful judicial review of the Planning Appeals Commission’s refusal to grant planning permission to the Boswells in 2008. The High Court ruled that the Commission had failed to conduct an evaluation of the suitability of alternative accommodation on the basis that the Boswells had a ‘cultural aversion’ to traditionally built houses. The case was remitted back to the Commission to conduct such an evaluation and reconsider the planning application.

Read the High Court 2009 judgment here and an article on the Planning Appeals Commission’s latest decision here.

Immigration and asylum

Housing

v Court ruling on the right to know the case against you in immigration appeals

The Divisional Court has ruled that an applicant in bail proceedings before the Special Immigration Appeals Commission (SIAC) must be given sufficient information about the allegations against him in order for him to give effective instructions in relation to those allegations. In this case the Government had relied on secret, or ‘closed’, evidence in deciding not to grant the applicant bail but the court ruled that there is a ‘bottom line’ of fair trial guarantees and that in bail proceedings before the SIAC, the same procedural standard under Article 5(4) of the Convention (right to liberty) applies whether they take place before or after the substantive judgment.

Read the judgment here and the UK Human Rights Blog analysis here.

v Time spent appealing deportation counts in assessing unreasonableness of length of detention

The Court of Appeal has ruled that in deciding whether a foreign national facing deportation has been detained for an unreasonably long period of time, the time taken to appeal his or her deportation should be included. Read the judgment here and an analysis of the case on Law think here.

v Two mothers rely on right to family life to win deportation appeal

Two women of Jamaican nationality have won their UK deportation appeals using Article 8 of the European Convention on Human Rights, the right to private and family life. Read more on the website of the Black Women’s Rape Action Project, who supported the women throughout their long struggles, here.

European Union law

v Irish High Court challenge argues that refusal of social welfare breaches EU law

A Romanian family living in the Republic of Ireland, which is represented by the Northside Community Law Centre, have brought a challenge against the State’s refusal to provide social welfare on the grounds that it breaches EU law. Read an overview of the issues in the case prepared by the Public Interest Law Alliance here.

v ECJ rules that parent of EU citizen enjoys right to reside

The European Court of Justice has ruled that third country nationals, who are parents of a child, who is a national of that Member State, have a right to reside and work there, where a refusal to do so would deprive that child of the genuine enjoyment of the substance of the rights attaching to the status of citizen of the EU.

It has been suggested that the case will have major implications in respect of the right to reside for non EEA family members of EU citizens within the territory of their own national State. Until now, EU citizens could only exercise their EU Treaty Rights on moving from one Member State to another. Read the judgment here and a summary by Brophy Solicitors here.

v Supreme Court rules pensioners from other EU states not entitled to UK pension credits

The Supreme Court has ruled that pensioners from other European Union states should not have the right to claim pension credits in the UK. This case involved a Latvian pensioner who had worked in Latvia for 40 years before coming to the UK in 2000. She was refused pension credit on the basis that she had no ‘right to reside’, but this right is automatically granted to UK nationals. The Court considered whether this indirectly discriminated against non-UK pensioners and, while finding that it does constitute indirect-discrimination, it ruled that it is a justified response to the legitimate aim of protecting the public purse.

Read the judgment here and a summary on the UK Human Rights Blog here. See also here a post on the Law think blog which considers whether Lord Walker’s dissenting opinion in the case was the right approach.

Welfare Reform

v CPAG launch legal challenge to welfare reforms

The Child Poverty Action Group (CPAG) have launched judicial review proceedings challenging two of the cuts to Housing Benefit for private sector tenants due to come into force in the UK on 1st April. They are specifically challenging the restriction of maximum household size to four bedrooms, and a new cap on the amount of Housing Benefit one household can receive.

CPAG argues that the cuts are contrary to the fundamental purpose of the Housing Benefit Scheme, which was originally intended to be a national scheme to prevent homelessness. They also argue that the Government has failed to have due regard to the general equality duties under the Race Relations Act 1976 and the Sex Discrimination Act 1975 because ethnic minorities and lone parents will be disproportionately affected by the two cuts being challenged.

Read CPAG’s press statement on the challenge here and a Guardian article on the case here.

Education

v European Court finds no right violation for Italian classroom crucifixes

The Grand Chamber of the European Court of Human Rights has overturned an earlier judgment of the Court by ruling that the presence of crucifixes in the classroom of an Italian state school did not breach Article 2 of Protocol 1 of the Convention, the right to education, nor therefore could it constitute discrimination under Article 14.

The Court reasoned that while the crucifix was a religious symbol, there was no evidence that the display of such a symbol would have an influence on pupils. The Court further argued that the matter was one that fell within the State’s margin of appreciation but that the Courts had a role in supervising the behaviour of the State to ensure that there was no indoctrination of pupils. Read the European Court’s summary of the judgment here, the full judgment here and the European Court’s case law factsheet on freedom of religion here. Read also comment on the ECHR Blog here.

v Education Authority liable for teacher’s injuries after assault by pupil with ASD

The Court of Appeal has found that a local education authority is liable for the injuries suffered by a teacher at a school for children with learning difficulties, who was assaulted by a pupil with Autism Spectrum Disorder. The Court found that the education authority had negligently failed to identify the pupil as suffering from ASD because they did not have a system in place for revealing whether pupils had the disorder and also did not provide instructions to teachers on appropriate techniques for dealing with children with ASD. They had therefore failed to provide a safe system of work for the teacher.

Read the judgment here and a summary on the Education Law Blog here.

LGBT

v Views on same sex relationships relevant to foster care decisions

The High Court in England has ruled that a couple’s views on same sex relationships can form part of a local authority’s decision-making as to whether they would be suitable foster parents. The local authority in this case, Derby City Council, had not yet made a decision on the would-be foster carers but the couple sought to challenge the approach of the Council. They argued that they should not be turned down as prospective foster carers solely because of their views on same-sex relationships.