Mohammed Younis Succeeds in the Supreme Court

Younis PicIn August 2012, the Irish High Court ruled that as Mohammad Younis was in an irregular migration situation, he could not benefit from protections under employment law (see also Dr Darius Whelan‘s excellent analysis of the High Court decision here). Today (25 June 2015), the Supreme Court set aside the decision of the High Court. The decision was set aside, not on any explicit repudiation of the High Court’s analysis of employment law, employment contracts and irregular migrant workers, but on the basis of strict adherence to the role of a court in judicial review proceedings. Rather than focus on the human rights arguments pleaded before it, the Supreme Court simply considered the jurisdiction of the High Court to make its August 2012 decision. The Rights Commissioner made two monetary awards to to Mr. Younis in March 2011.

For breaches by Mr Hussein (Mr Younis’ employer) of the Organisation of Working Time Act 1997, the Rights Commissioner awarded the sum of €5,000 to Mr. Younis. For breaches of minimum wage legislation over a number of years, Mr. Younis was awarded €86,134.42. As Mr Hussein did not appeal this decision, but did not pay Mr. Younis compensation. the Labour Court issued two determinations that these sums be paid in September 2011.

In setting aside the decision of the High Court, Murray J. in the Supreme Court noted: Continue reading “Mohammed Younis Succeeds in the Supreme Court”

Mohammed Younis Succeeds in the Supreme Court

Proposed Changes to Judicial Review in the UK.

We are delighted to welcome this guest post by Maeve O’Rourke. Maeve is a barrister at Thomas Bingham Chambers, 33 Bedford Row. Maeve is the 2013 Pro Bono Lawyer of the Year and is also this year’s recipient of the Forgotten Irish Award. Maeve’s previous guest posts for Human Rights in Ireland can be viewed by using the search tool on this page.

The UK Government’s Consultation on “Judicial Review: Proposals for Further Reform”  closed on 1st November 2013.

One of the most contentious aspects of the Consultation Paper is the proposal in Chapter 4 to amend the test for standing to prevent groups or individuals who are not “directly” affected by an alleged unlawful decision from bringing a claim for judicial review.

In its current form, the “sufficient interest” test for standing is crucially balanced to avoid abuse whilst ensuring that it does not act as a licence for unlawful executive action in the absence of a “directly” affected claimant.

The Government’s proposal means that groups which collectively represent the views of individuals, and which previously have brought – and won – judicial reviews in areas of public importance, will have their hands tied in the face of potential unlawful Government behaviour. Even where they are the only ones with the ability or expertise to bring a claim, they will be barred from acting to uphold the rule of law.

Throughout this Consultation Paper and the recent Transforming Legal Aid Consultation, the Government has proposed measures which will decimate the access of “directly” affected individuals to judicial review. The proposals on standing will consolidate that attack, ensuring that as fewer individuals are able to bring claims in their own right, civil society is simultaneously prevented from stepping in to fill the void.

Under the current “sufficient interest” test, the more public interest that attaches to judicial scrutiny of the subject matter of the application, the less directly affected the claimant may need to be. When considering an application by an interested individual or group, the courts also ask themselves whether there is a more appropriate claimant than the one asserting standing.

Therefore, permission tends to be granted to representative groups or individuals where the claim might otherwise not have been brought and it is in the public interest – and the interest of the rule of law – that it should be.

The rationale for this approach was stated by Lord Diplock in R v Inland Revenue Commissioners ex p NFSSB [1985] AC 617 as follows:

“It would, in my view, be a grave lacuna in our system of public law if a pressure group…or even a single public-spirited taxpayer were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped…It is not…a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are accountable to a court of justice for the lawfulness of what they do, and of that the court is the only judge.”[1]

Hence, the World Development Movement was allowed to pursue a successful application against a decision of the Home Secretary regarding overseas development which was unlawful and “so economically unsound that there is no economic argument in favour of the case”, in circumstances where there was no other likely challenger.[2]

Greenpeace was allowed to challenge a decision of the Inspectorate of Pollution to authorise the discharge of radioactive waste from Sellafield on the basis that 2,500 of its supporters came from the Cumbria region and if Greenpeace were denied standing, those it represented might not have an effective way of bringing the issue before the court.[3]

Maya Evans was allowed to challenge the Government’s practice of transferring suspected insurgents to the Afghan authorities during UK operations in Afghanistan. It was “with hesitation” that the Court of Appeal ultimately rejected her claim in a 327-paragraph judgment which revealed that there was “plainly a possibility of torture or serious mistreatment” at some facilities.[4] Clearly, those “directly” affected could not have brought this challenge themselves.

By proposing that the absence of a “directly” affected claimant should automatically allow the Government to avoid judicial review, the Consultation Paper is, in effect, suggesting a licence for unlawful executive action.

The Government has provided no coherent evidence to justify its proposals.

The case study which the Consultation Paper proffers as an example of “the inappropriate use of judicial review as a campaign tactic” was a claim brought by a classic “directly” affected individual, not a representative group.[5]

The Government does not say that NGOs, charities, pressure groups and faith organisations are clogging up the courts.[6]

Nor does it argue that claims by representative groups are largely “unmeritorious”. According to the Consultation Paper, judicial reviews by representative groups are “relatively successful compared to other JR cases”.[7] Of the 20 applications that are granted permission annually, a majority are either successful at final hearing or are withdrawn (which, the government concedes, often means they settle in favour of the claimant).[8]

The Government’s real concern may be that these cases are too likely to succeed. If that is the true rationale, it is difficult to imagine a greater affront to the rule of law.

[1] R v Inland Revenue Commissioners ex p NFSSB [1985] AC 617 at 664E

[2] R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386

[3] R v HM Inspectorate of Pollution and Ministry of Agriculture, Fisheries and Food ex p Greenpeace Ltd [1994] 4 All ER 329

[4] R (on the application of Maya Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin)

[5] See Consultation Paper, page 6. R (Coleman) v The London Borough of Barnet Council & Anor [2012] EWHC 3725 (Admin). The claim was against planning permission and was brought by a man with a disability who lived within walking distance of the land in question and had been a weekly visitor to the garden centre that had previously occupied it for over 24 years.[5]

[6] . On the Consultation Paper’s own figures, applications by these groups accounted for 0.4% of all claims in 2011.

[7] Consultation Paper, para 78

[8] Consultation Paper, para 12

Proposed Changes to Judicial Review in the UK.

Cuts to Legal Aid in England and Wales and Access to Justice for Migrants

We are delighted to welcome this guest post by Sheona York. Sheona is a Clinic Solicitor at the Kent Law Clinic  which is based at Kent Law School.

The recent and proposed cuts to legal aid in England and Wales represent a profound attack on the rule of law. The proposed cuts will significantly limit access to criminal legal aid, and virtually abolish legal aid for migrants and non-EU citizens seeking to redress alleged civil wrongs, including people suing the Government for alleged wrongful treatment at the hands of British state actors overseas. This blog outlines key problems with the proposed cuts from the perspective of migrants. Continue reading “Cuts to Legal Aid in England and Wales and Access to Justice for Migrants”

Cuts to Legal Aid in England and Wales and Access to Justice for Migrants

The "Silver Bullet" of Missing Evidence: A Brief Overview of Recent Issues

While there are a number of interesting cases in the Irish courts at the moment (not least among them the (now settled) case of two young Kerry brothers, aged 14 and 8, seeking a High Court order against the GAA to allow them to play Gaelic football for Listry rather than Ballyhar-Firies) one which caught my eye was the High Court “missing evidence” decision reported in last Friday’s Irish Times. This was a decision of Kearns P. in the High Court refusing to prohibit the trial of the applicant who claimed that the absence of certain evidence would lead to a real risk of an unfair trial. The applicant, an articulated lorry driver, is charged with dangerous driving causing the death of another lorry driver on the M4 motorway in November 2008. He argued, before the High Court, that the gardaí had failed to preserve the two vehicles involved in the collision, that, accordingly, he could not have an engineer inspect the vehicles on his behalf, and that all of this led to a real risk of an unfair trial. Kearns P. held that the circumstances of the instant case were not such as to deem it one of the exceptional “missing evidence” cases which might justify the prohibition of the impending trial Continue reading “The "Silver Bullet" of Missing Evidence: A Brief Overview of Recent Issues”

The "Silver Bullet" of Missing Evidence: A Brief Overview of Recent Issues

Human Rights in Irish Legal History: Cahillane on Judicial Review (Guest Contribution)

In the second part of our coverage considering events in Irish legal history which have had a significant impact on the political institutions in place in Ireland and in particular upon questions of human rights, Laura Cahillane, a PhD candidate at UCC, assesses important missed opportunities in the early development of judicial review of legislation in Ireland.

Many people do not know it but Judicial Review in Ireland originated in the 1922 Constitution. Article 65, which has been described as “the most arresting provision in the Irish Free State Constitution”, provided that: “The judicial power of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution.”

The concept of judicial review was not widely accepted at the time. In Europe, the principal objection to judicial review was that it violated the separation of powers principle. So it was in the United States that the idea, of legislative acts being reviewed by the judiciary, came into being. There is no express provision in the Constitution of the United States which gives this power to the judiciary. However, the power was established by precedent in the famous case of Marbury v. Madison[1] and widely accepted by the American legal community. Continue reading “Human Rights in Irish Legal History: Cahillane on Judicial Review (Guest Contribution)”

Human Rights in Irish Legal History: Cahillane on Judicial Review (Guest Contribution)

Khadr in the Canadian Supreme Court

Readers who are following the progress of Guantánamo-related cases through domestic courts around the country will be no doubt familiar with the case of Omar Khadr (left). Arrested and detained in Guantánamo Bay while he was a minor, Khadr is a Canadian citizen who had secured a lower court ruling directing the Canadian government to make representations for his release. The Government challenged that decision in the Supreme Court, largely on the basis that the exercise of diplomatic functions is an Executive function from which the courts ought to exclude themselves or, at least, in which they ought to minimise their role quite significantly.

In the Canadian Supreme Court’s decision in Prime Minister of Canada v Omar Khadr [2010] CSS 3 there is a clear recognition of the participatory role of the Canadian government in the unlawful detention with statements provided by Canadian officials being one of the bases for his continued detention. However, while Khadr was entitled to a remedy the Supreme Court did not grant the remedy sought, i.e. an order that Canada request his repatriation. The Court did not accept that the government was immune from constitutional scrutiny when it comes to deciding on perogative powers. Rather, the court asserted its jurisdiction to decide (1) whether a claimed perogative power exists, (2) if so whether the Charter of Rights or constitutional norms have been breached in the exercise of that power, and (3) to make specific orders. However, the Court could not make an order directing the government to request repatriation as to do so is to infringe too greatly on the executive power relating to foreign affairs. The Court held that the appropriate remedy in such a case is to declare a breach of rights and then leave it to the government to decide how to react to that breach.

The judgment seems to be a mixture of judicial muscularity (the claim that the conduct of foreign affairs is not an area within which the government can act without scrutiny) and deference (the claim that the government can not be directed to act in a certain way without the foreign affairs arena). While this might, at first, seem to indicate a contradictory viewpoint on the part of the Supreme Court, in my view it is in fact a good example of the kind of ‘nudging’ judgment we have seen in both the US and the UK superior courts in the ‘War on Terrorism’ (I have written about this here in the MLR and, forthcoming, also in the OJLS with an early, unproofed version here). What will happen if the Government does nothing or is not forced into doing something by parliament and ‘the people’? That is perhaps the lingering question from Khadr. The hope is that it will not fall to the Court to decide it and, instead, the government will take steps to try to have Khadr repatriated.

Khadr in the Canadian Supreme Court

Proportionality, Administrative Decision-Making and Judicial Review

Last week saw the Supreme Court hand down its judgment in the important case of Meadows v Minister for Justice, Equality and Law Reform [2010]. This case considered whether a proportionality analysis is generally applicable to administrative decisions that have an impact on one’s constitutional and/or fundamental rights. This case, in which the Supreme Court appears to have introduced a general requirement for proportionality analyses in all administrative action that has individual rights implications, is a potentially monumental one that might have wide-ranging implications for administrative decision-making in this jurisdiction for quite some time to come. Although the case takes place within the context of asylum and refugee law it seems quite clear that its implications are much broader than this; the ratio as stated is a general one applicable to all situations of rights-endangerment by administrative review, although of course the severity of potential interferences with individual rights will be a factor to be taken into account in the conduct of any proportionality analysis.

The facts

The case concerned an applicant for asylum in Ireland who claimed that she suffered a real risk of persecution if returned to Nigeria because she would be forced to enter into a marriage arranged by her father and would be subjected to female genital mutilation. The applicant had been refused asylum on the basis that she was determined not to have made out a well founded fear of persecution on a Refugee Convention ground and was subsequently unsuccessful before the Refugee Appeals Tribunal, which was not satisfied that she had established “a credible connection between her circumstances and forced marriage and female genital mutilation”. On applying for leave to remain in the state, the applicant claimed that forcing her to return to Nigeria would violate her rights in both national and international law given the severity of the danger that it was alleged awaited her there. The application for leave to remain was refused, with the Minister claiming he was satisfied that the prohibition on refoulement was not breached and that “the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of [the] case as might tend to support [the applicant] being granted leave to remain in this State.”

The claim

In the Supreme Court case Meadows argued that whether or not questions of fundamental human rights had been taken into appropriate account in administrative decision making ought to be considered in judicial review proceedings. Judicial review is a means of challenging the decision-making process and not the outcome, but if the process is found to have been deficient then the outcome is a priori also deficient. Unreasonableness has always been a basis for judicial review and this case essentially centred on whether or not a decision making process could be said to be unreasonable if it is found that a proportionality analysis was not properly engaged in, taking into account the grave repercussions of interference with individual rights that might flow from an administrative decision.

Continue reading “Proportionality, Administrative Decision-Making and Judicial Review”

Proportionality, Administrative Decision-Making and Judicial Review