Sunday Working, Deportation and Judicial Review Reform – The Human Rights Roundup
13 January 2013
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
This week the government’s proposals for judicial review reform came under scrutiny, as did the effect of legal aid cuts on immigration law practice and foreign national prisoners. It was not only the government on the defensive this week, but The Daily Telegraph has also been criticised for its coverage of a an employment case. Reform has been on the agenda beyond the sphere of judicial review, with The Economist taking a look at the recent criminalisation of squatting and proposed changes to the probation service.
In the news
Judicial Review reform
Adam Wagner will be collating Judicial Review consultation responses, please email him your or your organisation’s response if you would like it to be included in the roundup. Don’t forget, the consultation closes on 24 January.
by Daniel Isenberg
The Public Law Project (PLP) have raised their concerns at the manner in which the government has presented its proposals for reform of judicial review. Not only is the PLP concerned about the apparent haste in which these proposals have appeared, but specifically focuses its critical eye on proposed changes to time limits; the proposed abolition of the right to an oral permission hearing in certain cases; the proposed fee for oral renewal hearings; and the potential impact of the proposals on equality.
In a similar vein, Varda Bondy and Maurice Sunkin have challenged the very basis of the government’s claims of a need for change. They counter the view that there has been a significant increase in the number of judicial review claims, as well as the assertion that judicial review impedes economic growth. Moreover, their statistical analysis suggests there has not been an “abuse” of the system of judicial review, in the manner intimated by the government.
With analysis on this blog by Richard Wayman, the Employment Appeal Tribunal’s upholding of a decision that a local authority could sack a care worker who refused to work on Sundays for religious reasons (see ‘In the Courts’ below). Yet, this item made waves this week, not because of the decision itself, but the manner in which it was reported in The Daily Telegraph here. Our own Adam Wagner critiqued the Telegraph’s view (read the comments for an interesting discussion on , as did Michael Reed on Working Theory. Solicitor Darren Newman followed suit, stressing this was a “pretty run-of-the-mill indirect discrimination case”. Some of Mr Newman’s strongest criticism is for what he sees as unfounded claims by The Telegraph that the Tribunal “took it upon itself to judge the importance of Sundays to Christians”.
Joshua Rozenberg, takes this example to make the case for concurrent publication of a written ruling to complement the oral delivery in court, for the sake of accurate public debate, even if this means the litigating parties have to wait a month. We await with interest the press coverage of the European Court of Human Right’s decisions on four challenges to UK law made by Christian employees due this week.
Deportation and other Immigration News
Two interesting aspects to deportation were reported on this week, the first by Melanie McFadyean in The Guardian. Ms McFadyean highlights how in April’s round of cuts under the Legal Aid, Sentencing and Punishing of Offenders Act, there will no longer be legal aid available for foreign national prisoners facing deportation. In 2010, meanwhile, a third of appeals against such deportations were successful, mainly on grounds under Article 8 of the ECHR (right to family life). With the law in this area complex, Ms McFadyean argues that many potentially successful appellants will be left without an avenue to a well-argued appeal under the cuts.
Commenting on the case of Essa in the Upper Tribunal, the UK Immigration Law Blog notes that cases are especially interesting when a potential deportee is a citizen of the EU: in these circumstances, not only with the courts adopt a proportionality test under Article 8 of the ECHR, but also an EU “dimension to proportionality”. This extra examination relates to an assessment whether deportation would affect the likelihood of rehabilitation from offending in the host country.
Elsewhere in the immigration law news, the UK Border Agency have issued a statement that they will be writing to overseas students at the London Metropolitan University to inform them whether they will be able to continue their studies to the end of this academic year – the University had its UKBA sponsor licence revoked last year and is currently challenging the decision in the courts.
Meanwhile, Elizabeth Davidson reports that law firms with a strong focus on asylum and immigration work will be heavily hit by the latest round of legal aid cuts: under the latest tendering process, less than a third of the casework bid for was made available to firms.
Reform, Reform, Reform
In September of last year squatting became a criminal offence, and The Economist reports not only the impact of the legislation on squatters, but also the likelihood that the law may expand further, based on the view that a criminal record is greater deterrent than eviction. The same publication views that criminal justice reform may be considered the government’s most radical accomplishment by the time of the next general election; including an overhaul of the probation service.
Also in the News
A couple of interesting pieces this week in the field of information law: ObiterJ has picked up on a ‘Freedom of Information’ request made by Miguel Cubells to the Greater Manchester Police regarding an investigation into his mother’s death. The Information Commissioner has upheld the police’s ‘neither confirm nor deny’ (NCND) response to Mr Cubells and it appears there may be a confidential annexe relevant to this decision, which has been requested by the First Tier Tribunal. Inforrm also provide some commentary on the ECtHR’s decision in Yildrim v Turkey, noting that it was unsurprising the court found a blanket ban on access to Google sites to be in violation of Article 10 of the ECHR (freedom of expression).
There are some interesting recent publications by the Ministry of Justice, including its ‘Digital Strategy’ and guide for self-represented litigants, which is likely to be more necessary than ever as April’s cuts approach.
Lucy Reed on LegalCheek discusses her serendipitous path to the family law bar – a must read for those setting off down this route; and the BBC has highlighted an interesting case to follow, in which Rutland County Council is seeking an injunction against three of its councillors for alleged harassment.
In the courts
Mba v London Borough Of Merton (Religion or Belief Discrimination)  UKEAT 0332/12/1312 – Employment Appeal Tribunal holds that there was no discrimination in this specific case, when an employer insisted that a religious Christian employee work on Sundays.
Bristol City Council v C & Ors  EWHC 3748 (Fam) – High Court grants a reporting restriction arising out of care proceedings.
Claes v Belgium – 43418/09 – HEJUD  ECHR 34 (French text) – ECtHR holds that the treatment of the mentally disabled in Belgian prisons is “inadequate”. See also summary here.
To add events to this list, email Adam Wagner. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.
- The Case for the Permissibility of Male Infant Circumcision – LSE
Tuesday 15 January 2013, 6.30-8pm, London School of Economics Speaker: Dr Joseph Mazor
- Fundamental Rights In Europe of Humanities and Social Sciences – Oxford Brookes University
Fundamental Rights In Europe: A Matter For Two Courts 18 January 2013, Oxford Brookes University
- Refugee and Migrant Children and Young Persons’ Rights in Scots Law
Legal Services Agency, Glasgow, 15/1/13, 10am-1pm, £60-£150
- Taking Cases to the European Court of Human Rights Law Society Webinar, begins Tuesday 22 January 2013, prices online
- EU’s non-disclosure of UK EU Charter opt-out documents is a breach of the EU Charter – January 13, David Hart QC
- Identity of social workers may be published following fostering bungle – January 13, Rosalind English
- Christians have no right to refuse to work on Sundays… oh no, wait – January 11, Adam Wagner
- Christian who refused Sunday work was not constructively dismissed – January 10, Richard Wayman
- Comity of nations? US ban on US airlines complying with EU emissions law – January 10, David Hart QC
- A Moral Assessment of the European Court of Human Rights – January 9, Professor John Edwards
- An instance of ‘the finger’ (post) – January 9, Rosalind English
- High Court refuses to condemn US drone strikes – January 9, Shaheen Rahman
- Religion, Inquiries, Judicial Review – January 8, Adam Wagner
- Court of Protection approves arrangements for safeguarding Article 8 rights of detained man – January 7, Richard Mumford
My one conclusion after an admittedly cursory examination of the paper on proposed changes to the process and procedure for applying for judicial review is that it is mis-targeted in that it is apparent that most of the increases in applications relate to immigration-related cases. This is no reason for reducing the time available to make an application for a judicial review, nor is it any basis for making such applications more expensive.
Your further item above on the withdrawal of legal aid for immigration-related cases makes it apparent that the real target behind these government proposals is to diminish the opportunities for challenges to immigration decisions to be mounted.
I do not want to be drawn into a debate on the varying aspects of immigration rules and procedures – though I suspect we will all be the poorer in terms of all our human rights if the government succeeds in reducing the ability of immigration lawyers to act on behalf of their clients – but I do strongly feel that the measures being proposed to reduce the ability of individuals – in particular – to challenge large corporate bodies through the process of applying for judicial review is something that should be strongly resisted.
Reducing access to judicial review is anti-democratic and specifically designed to weaken the ability of ordinary individuals to challenge over-mighty bodies of all types in the private and public sectors. Do please put forward strong objections to the proposed changes to judicial review – for all our freedoms and liberties.
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