Government still on the standing warpath


706x410q70fdb2ae613e49ab38bae8e09d0a46a228O (R o.t.a) v. Secretary of State for International Development [2014] EWHC 2371 (QB) 14 July 2014  read judgment

One proposal of the Lord Chancellor on reforming judicial review last year was the narrowing of the tests for standing, namely the ability to come to court and complain about some public law unlawfulness: see, e.g. here. The idea of statutory reform of standing was later shelved, but the current case is an interesting example of the Government probing the boundaries of the tests laid down by the courts.

The underlying dispute concerns the funding of international aid to Ethiopia by DFID. Mr O is an Ethiopian citizen who says he was the victim of human rights abuses in the course of a programme to re-settle villagers in new and larger communes – this programme (the Commune Development Programme or CDP) is said to involve forced internal relocation. As a result, O fled to Kenya, leaving his family behind. There is evidence of widespread human rights abuses perpetrated in this process of “villagisation”.

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The paradox beneath Strasbourg’s French veil ban decision

french-veil-ban-001S.A.S v France (Application no. 43835/11) – read judgment

The Grand Chamber of the European Court of Human Rights has rejected a challenge to a French law which prohibits the wearing of veils in public. The ruling is, of course, of great political and media interest, but it is also significant from a legal perspective. In a lengthy and detailed judgment, the Court ultimately accepts that, as a matter of principle, a government can legitimately interfere with the rights of individuals in pursuit of social and cultural cohesion.

On 11th April 2011, Law no. 2010-1192 came into force in the French Republic. Subject to certain limited exceptions, the law prohibits anyone from wearing any clothing which conceals their face when in public places, on pain of a 150 euro fine, and/or compulsory citizenship classes. Whilst phrased in general terms, the most obvious effect of the law, and its clear intention, is to ban the niqab (a veil that leaves only the eyes visible) and the burka (a loose garment covering the entire body with a mesh screen over the face).

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The non-residents legal aid case – LC advised to go for the ball, not for his opponent’s shins

roy-keane_1342720cPublic Law Project  v Secretary of State for Justice [2014] EWHC 2365 – Read judgment / summary

Angela Patrick of JUSTICE has provided an excellent summary of this important ruling, which declared a proposed statutory instrument to be ultra vires the LASPO Act under which it was to have been made.  The judgment is an interesting one, not least for some judicial fireworks in response to the Lord Chancellor’s recourse to the Daily Telegraph after the hearing, but before judgment was delivered. 

But more of that after some thoughts on the discrimination ruling.

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Plan to stop non-residents getting Legal Aid is unlawful, rules High Court – Angela Patrick

PLP v Secretary of State for Justice [2014] EWHC 2365 – Read judgment / summary

Residence Test UKHRBAs the House of Lords is scheduled to vote on the Government’s proposals for a residence test for access to legal aid, Angela Patrick, Director of Human Rights Policy at JUSTICE considers today’s judgment of the Divisional Court in PLP v Secretary of State for Justice.

While we are all following the exciting live feeds on both the reshuffle and the progress of emergency legislation on surveillance, the freshly appointed Attorney General, Jeremy Wright MP, may want to cast his eyes to BAILLI.

The Administrative Court may this morning have handed him one of his first “to-do” list items.   In – PLP v Secretary of State for Justice - a rare three judge Divisional Court has held that the Government’s proposal to introduce a residence test for legal aid – where all applicants will have to prove 12 months continuous lawful residence in the UK – is both ultra vires and discriminatory.

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Successful A1P1 claims by photovoltaics

Breyer Group plc and others v Department of Energy and Climate Change [2014] EWHC 2257 (QB) – Coulson J read judgment 

This is an important judgment on governmental liability for a rather shabby retrospective change of the rules about subsidies for photovoltaic schemes. The Court of Appeal had decided in 2012 that the changes were unlawful: see judgment  and my post here.  The question in Breyer was whether businesses could obtain damages under A1P1 arising out of the Secretary of State’s decision. Though the judgment proceeds on a number of assumed facts, some critical findings of law were in favour of the businesses.

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Family comes first (even if they’re in Poland)

Adoption blueP (A Child) [2014] EWCA Civ 888 – read judgment here.

1 Crown Office Row’s Martin Downs represented the parents in this appeal (not at first instance), but is not the author of this blog post.

In this successful appeal against care and placement orders in respect of a young infant with Polish parents, the Court of Appeal were sharply critical of comments made by the first instance judge which made it clear he had closed his mind at an early stage to the possibility of the baby being looked after by her grandparents in Poland. The Court held that both the judge and the local authority had failed to give sufficient weight to their positive obligation under Article 8 to consider ways of retaining a child within the family.

The parents in this case were Polish nationals who moved to England in 2011. Their daughter was born in September 2012. For the first five-and-a-half months of the little girl’s life, there were no concerns about the care she was receiving from her parents. However, in February 2013 she was taken to her local hospital in Warrington with a head injury which was found to be non-accidental and probably inflicted by the father. On discharge from hospital the baby was taken into foster care. Proceedings were instituted and after several hearings before HHJ Dodds concluded in December 2013 with an adoption placement.

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Another “Bedroom Tax” Challenge Fails

Bedroom taxRutherford and Ors v Secretary of State for Work and Pensions [2014] EWHC 1613 (Admin) – Read judgement here.

At the end of May, the High Court ruled that the reduction in Housing Benefit under Regulation B13 of Housing Benefit (Amendment) Regulations – commonly dubbed “the bedroom tax” - did not unlawfully discriminate against a family with a disabled child requiring an additional bedroom for overnight careers because the shortfall was covered by discretionary housing payments.

The case involved three Claimants: Mr and Mrs Rutherford and their 14-year-old grandson Warren. Warren suffers from a profound disability requiring 24-hour care from at least two people. Mr and Mrs Rutherford need the assistance of two paid careers for two nights a week. The family live in a three-bedroom bungalow rented from a housing association and specifically adapted to meet Warren’s needs. Mr and Mrs Rutherford sleep in one room, Warren in another, and a third room is used as a bedroom for overnight carers and to store medical equipment.

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