Application to the European Court of Human Rights for Margaret Jaconelli

Govan Law Centre (GLC) today submitted an application to the European Court of Human Rights (ECrtHR) in Strasbourg for Mrs Margaret Jaconelli. 

The application seeks just satisfaction, an order to require the Scottish Government to ensure that Scots law on CPOs of dwelling-house (and eviction thereafter) is compliant with the European Convention of Human Rights, and a quashing of the CPO made against Mrs Jaconelli's home. 

GLC's Principal Solicitor's Mike Dailly, was required to enter through a small window of Mrs Jaconelli's barricaded home, in order to discuss her application to the ECrtHR, take her instructions and complete the necessary legal paperwork in order to lodge an application to the European Court.

The application to the ECrtHR argues that: the applicant, Mrs Jaconelli, was unlawfully deprived of her possessions as she did not obtain a fair trial as required by Article 6 of the ECHR in relation to the making of the Compulsory Purchase Order which deprived her of ownership of her property. Accordingly, Article 1 of the First Protocol and Article 6 have been violated.

The applicant had no equality of arms, she being unrepresented and there being no legal aid available. The applicant was unable to present a fair defence in proceedings which were highly technical. She did not receive a fair hearing in terms of Article 6. Reference is made to the cases of Steel and Morris v. UK (Application 68416/01); Ashingdane v. UK (Application 8225/78); Golder v. UK (Series A No.18 of 1975); and Airey v. Ireland (Application 6289/73).

The applicant’s right under Article 8 of the ECHR to respect for her private and family life and her home has been violated. The applicant relied on the decision of the UK Supreme Court in Manchester City Council v Pinnock, 2010 3 WLR 1441 for authority for the proposition that she was entitled to found upon Article 8 as a defence to the eviction action against her.

The case of Pinnock was authority (at paragraph 53) for the proposition that in response to an Article 8 defence the Council had to ‘plead’ and ‘adduce evidence’ to justify its interference. No examination of the disputed facts was permitted to take place by the court; reference is made to Connors v. UK (2004) 40 EHRR 189 at paragraphs 81-83 and 92; McCann v. UK 40 EHRR 189; Zehentner v. Austria (Application 2008/02) and Paulic v. Croatia (Application 3572/06).

Under reference to paragraph 92 of the European Court of Human Rights decision in Connors v. UK the applicant in the present case contends that the Scottish court procedure was insufficient to satisfy the requirements of Article 8 because Glasgow City Council was not required to establish any substantive justification for evicting the applicant. There was no opportunity for an examination of the facts in dispute between the parties and the applicant’s Article 8 rights have therefore been violated.

Glasgow City Council's eviction of the Jaconelli family in Glasgow's East End: Govan Law Centre statement

Govan Law Centre finds it reprehensible, inhumane and unnecessary for our client, Mrs Margaret Jaconelli and her family, to be forcibly ejected today from her home of 34 years when she has offered to leave voluntarily, and without any qualification, following the emergency mediation offered by the Scottish Government last night. 

Glasgow City Council have refused the Scottish Government's offer of mediation, notwithstanding Mrs Jaconelli has agreed to voluntarily leave her home after an opportunity to get the round the table, represented by Govan Law Centre, with an independent mediator from the Scottish Government. 

GLC's Principal Solicitor, Mike Dailly said:
"There is no need to evict my client, and to do so in circumstances where she has agreed to leave after Scottish Government emergency mediation makes no sense. Glasgow City Council's barbaric action is positively unGlaswegian and does not reflect the spirit of our great City".

"I remain extremely worried and perplexed that Glasgow City Council would prefer to forcibly evict a Glasgow family from their home of 34 years, rather than get round the table on Monday and discuss matters; particulary as I have advised the Council that my client is willing to voluntarily leave without further qualification". 

"Before yesterday's Court of Session action the Council was prepared to be flexible and compassionate, and give additional time to secure a civilised departure.  However, Council officials have done an inexplicable U-turn within the space of 24 hours, and there is a fear that this case may have become overly personalised. But it is still not too late to be reasonable".

Unfair bank charges update from Govan Law Centre

The Scottish Legal Aid Board have granted full civil legal aid certificates in the cases of Sharp v. Bank of Scotland plc and Reid v. Clydesdale Bank plc.  This will enable Govan Law Centre to argue that the overdraft charges applied to our clients' current accounts were unfair in relation to s.140A of the Consumer Credit Act 1974, as amended, and separately, regulation 5 of the Unfair Terms in Consumer Contract Regulations (on grounds excluding price in relation to the UTCCR as per the decision of the UK Supreme Court in OFT v. Abbey National plc and others).

Highland pupil's road safety dispute

The Press and Journal reports that a Highland couple have kept their 10-year-old daughter off school for 18 months – for fear she might be knocked down and killed on a busy single-track road. 

Robert Brooks and his wife Shermaine from Skye claim it is not safe for Katie-Ann to walk three miles along the 60mph limit A855 Uig to Staffin road to Kilmuir Primary School because there is no pavement or street lighting.

They decided to keep her at home after Highland Council ruled in August 2009 that she no longer qualified for free transport because she lived less than three miles from the school, a distance children aged eight and over are expected to be able to walk.

Louise Melia, associate solicitor at the Glasgow-based Govan Law Centre, who has taken up the family’s case, said a legal precedent had already been set whereby walking distance rules could be overridden on the grounds of road safety. Ms Melia said councils have a “huge amount of discretion” and the authority could decide to provide free transport if it wanted.

A spokesman for Highland Council said the council had carried out a new risk assessment of the A855 and the results would be shared with Mr Brooks “very shortly”.

Final hurdle for Property Factors (Scotland) Bill next week

The Scottish Parliament will debate the Property Factors (Scotland) Bill at Stage 3 on the afternoon of Thursday, 3 March 2011. This is the final hurdle for the Bill. The Bill, drafted by Govan Law Centre's Parliamentary Unit for Glasgow MSP Patricia Ferguson, has now secured the backing of the Scottish Government, the Parliament's Local Government and Communities Committee, and also has wide public support across Scotland. However, the Bill now needs to secure the support of MSPs in the full Chamber next Thursday in order for it to become law.

A mortal blow to members' rights: proposed changes to Law Society of Scotland's constitution

The draft constitution which the Council of the Law Society of Scotland (LSS) will propose at its AGM next month will irretrievably damage the rights of the 10,500 members of the Law Society.  Today, GLC publishes an article by Glasgow solicitor, and LSS Council member, Walter Semple which explains how the proposed new constitution diminishes the rights of ordinary members, and exposes Scottish solicitors to the unnecessary financial risks of 'Tesco law firms', know as 'licensed legal service providers' (LPs) under the Legal Services (Scotland) Act 2010.

Glasgow Council member and GLC's Principal Solicitor, Mike Dailly said: "The Law Society is a members-based organisation, paid for by 10,500 members across Scotland, but a small elite want to severely restrict the ability of members to influence their own organisation. That's undemocratic and unnecessary.  The Society should be fully open, transparent and accountable to its members.  It isn't and the constitution proposed by the Council isn't fit for purpose".

"Walter Semple is correct to highlight the irreconcilable conflict in the Society both regulating 'Tesco law' businesses and supposedly promoting the interests of solicitors.  These bodies are not Scottish solicitors, yet the proposed constitution would see Scottish solicitors underwriting their financial risks. That is not in the interests of the Scottish legal profession, so why are we doing this?"

The proposed new constitution would require any members motion to influence the policy of the Society to require a 2/3rds majority, unless it had the support of Council.  Further, LPs would be covered by the Society's Guarantee Fund (a fund built up by a levy on partners and principals in Scottish legal firms) and the Society's Master Policy.

What can you do?  If you are a solicitor you can grant a proxy so that your vote can be cast against the proposed new constitution; OPEN PROXY FORM (this should be returned to the Registrar, David Cullen, of the Law Society of Scotland in Edinburgh. Or you can attend the AGM on 25 March 2010 and cast your own vote.

Protecting Scotland's vulnerable citizens: Access to Justice Committee Discussion Paper

The Law Society of Scotland's Access to Justice Committtee (AJC) has published a radical Discussion Paper (DP) suggesting that the Scottish Government's 8.2% legal aid cut could be achieved by tax efficient regulatory restructuring.  The DP also calls for the redeployment of PDSO resources to fund victim support and other unmet civil legal need services.

The Convenor of the Law Society's Access to Justice Committee, GLC's Mike Dailly, said: ' We believe the priority must be to protect Scotland's vulnerable and low income citizens from the worst consequences of unprecedented welfare benefit and public funding cuts. This cannot be done in the current economic climate without innovative regulatory and structural reform of our existing legal aid system".

The Acccess to Justice Committee's Discussion Paper can be read here.