Public Interest Litigation Update: 20th September 2010 Quick Links

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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
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

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 21st 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.

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.

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.

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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