Public Interest Litigation Update:
1st April 2015
Welcome to the PILS Project's Public Interest Litigation Update. The Update provides you with information on current public interest cases, judgments, news and events.
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- UK Supreme Court rules ‘benefits cap’ lawful
R (on the application of SG and others (previously JS and others)) v Secretary of State for Work and Pensions (2015) UKSC 16
The UK Supreme Court has dismissed an appeal on the ‘benefits cap’ which limits the benefits an out-of work family can receive to £500 per week. The cap was introduced in 2013 and is applied regardless of family size or circumstances such as rental costs.
Five judges heard the appeal which was taken by two lone mothers who argued that the cap was unlawful in disproportionately affecting single parents and domestic violence victims, who tend to be women. One mother left her husband because he was abusing her and her eldest daughter. She lives, with her six children, in an overcrowded two-bedroom flat in East London. After rent, the benefit cap leaves her and her children with £80 per week. The other mother, who suffered a long history of domestic abuse by her former husband, lives in a two bedroom apartment with her three children. Due to the benefit cap her family faces a shortfall of £50 per week in their rent.
The Court found that the effect of the policy was not compatible with the government’s obligations under Article 3(1) of the UN Convention on the Rights of the Child (UNCRC) to treat the best interests of the child as a primary consideration. Quite specifically, the Court stated that the cap deprived the children of “the means of having adequate food, clothing, warmth and housing”.
However, a majority of 3-2 held that the policy did not breach Article 14 of the European Convention on Human Rights (ECHR) prohibiting discrimination. As the ECHR forms part of national law under the Human Rights Act 1998, and the UNCRC does not, the appeal was dismissed.
Click here for an article from The Human Rights Blog. Commentary from Child Poverty Action Group, who intervened in the case, can be found here.
Legal Aid Challenges
- Successful challenge to judicial review legal aid regulations
R (on the application of Ben Hoare Bell Solicitors and others) v The Lord Chancellor (2015) EWHC 523 (Admin)
On 3rd March 2015 the High Court of England and Wales held that judicial review regulations, introduced in April 2014, are unlawful.
The challenge was brought by four English law firms and Shelter, a housing charity, and concerned regulation 5A of the Civil Legal Aid (Remuneration) Regulations 2013. Regulation 5A provides that lawyers will only be paid for legally aided judicial review claims where ‘permission’ was granted. The permission stage is a filter in judicial review claims: claimants must show that their claim is arguable before it can proceed to a full hearing to determine the case.
To be lawful, regulations made under statute must be consistent with the purpose of the statute under which they are made. The Claimants argued that the regulation was inconsistent with the statutory scheme which governs access to legal aid. The Lord Chancellor argued that the regulation would incentivise legal aid providers to more rigorously examine the merits of a case before issuing proceedings, and, as a result, the regulations would “enhance” the merits criteria in the statutory legal aid scheme.
The High Court rejected the Lord Chancellor’s argument. It held that various events can occur in judicial review cases which are unforeseeable or outside the control of lawyers. The court gave three examples: the defendant withdraws their decision (so no permission is granted), the court adjourns the permission hearing to an oral hearing or the court considers permission at the same time as the substantive hearing. In all three situations, the court held that there is no rational connection between the incentive to assess the merits accurately, and the consequences of the lawyer not being paid.
Accordingly the court found that the Lord Chancellor did not have the power to make the regulation. For commentary from the Public Law Project, an access to justice charity, please click here.
- Court finds legal aid rules in domestic violence cases lawful
R (on the application of Rights of Women) v The Secretary of State for Justice  EWHC 35 (Admin)
In our September Update we confirmed that permission had been granted for a judicial review, challenging the lawfulness of legal aid changes affecting victims of domestic violence in England and Wales.
The case was heard in full on 22nd January 2015. The claimants, Rights of Women, argued that changes introduced by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) are preventing victims of domestic abuse getting legal aid for family law cases. The changes mean that victims are required to provide a prescribed form of evidence in order to obtain family law legal aid. Many women affected by violence do not have the required forms of evidence. Some of the forms of evidence are subject to a 24 month time limit, although perpetrators may remain a life-long threat to their victims.
However, the High Court upheld the legality of the evidence requirements. It considered that the Ministry of Justice had widened the definition of domestic violence and increased the categories of evidence of domestic violence accepted as qualifying for legal aid. The Court held that the evidence requirements were neither ultra vires nor unreasonable.
Rights of Women and the Law Society of England and Wales, who supported the case, expressed their disappointment with the judgment. The Law Society President Andrew Caplan said:
“The change, introduced by the government, is yet another example of the draconian cuts affecting vulnerable clients…Victims of domestic violence should not be excluded from accessing legal aid for family law disputes against an abusive ex-partner or relative because of these unrealistic regulations.”
Click here to read an article from The Guardian.
- Landmark judgment on informed consent in medical cases
Montgomery v. Lanarkshire Health Board  UKSC 11
On 11th March 2015 the UK Supreme Court overturned the 1980s Sidaway judgment on informed consent in medical cases. In Sidaway the House of Lords held that it was, on the whole, a matter for doctors to decide how much to tell patients about the risks of treatment, and that therefore you could not sue your doctor in negligence for failing to inform you of a risk if other reasonable doctors would not have informed you of the risk.
The facts of the case before the court were that a Scottish baby boy was starved of oxygen during delivery and as a result sustained severe brain damage. The principle claim was against the mother’s obstetrician for failure to give adequate warning. The claimant was diabetic and of small stature and, as diabetic mothers are likely to have larger babies, was at an increased risk of experiencing problems while giving birth. During delivery, the shoulders of the baby got stuck due to shoulder dystocia, causing injury. The obstetrician claimed she did not warn of the occurrence of shoulder dystocia due to the remote risk involved, an opinion that was supported by experts who gave evidence at trial. The claimant indicated that had she been advised of the risks, she would have elected for a caesarean section.
The 7 judges sitting in the Supreme Court noted that, post-Sidaway, a number of English (and Australian and Canadian) court decisions ceased to follow the ‘doctor knows best’ approach of Sidaway. The Court recognised that there are so many sources of information available to patients (internet, patient support groups etc) and therefore there is now a duty to involve a patient in treatment decisions. This duty has been recognised in Strasbourg cases such as Glass v United Kingdom (2004) 39 EHRR 15.
This ruling places on patients the responsibility for taking risks that affect their own lives and living with the consequences of their choices. The court, however, outlined one limited exception – the ‘therapeutic exception’ – which allows a doctor to reasonably withhold information as to risk if disclosure would do serious detrimental damage to the patient’s health. The court emphasised that this rule should not be used simply where a doctor thinks that a patient is liable to make a choice that the doctor believes to be contrary to the patient’s best interests
Click here for an article from the BBC
N.I Judicial Review - Integrated Education
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- ECtHR refuses Stephen Gough permission for a new hearing.
Case of GOUGH v. THE UNITED KINGDOM (Application no. 49327/11)
In our October 2014 Update we covered the case of Stephen Gough, aka ‘the naked rambler’. Mr Gough claimed that his repeated convictions and imprisonments for offences associated with being nude in public violated his rights under Articles 8 and 10 of the European Convention of Human Rights (ECHR).
On 28th October 2014 the European Court of Human Rights (ECtHR) dismissed his case. The Court held that his repeated imprisonment for social nudity did not violate his ECHR rights.
On 24th March 2015 the ECtHR refused Mr Gough permission for a new hearing. This means that the judgment handed down on 28th October is now final.
For an article from the BBC click here.
On Friday 27th March 2015 Mr Justice Treacy handed down judgment in the judicial review taken by Clintyclay PS over a decision by John O’Dowd to close the catholic-maintained primary school.
With Clintyclay’s enrolment having dropped below 30 pupils, the Council for Catholic Maintained Schools (CCMS) had proposed that it should close. An alternative proposal advanced by the school’s Board of Governors to change its management to grant-maintained integrated status was rejected.
At the time of his announcement last October the Minister said enrolment numbers meant the school was no longer sustainable. Due to this long-term situation, the Minister stated that transformation to integrated status was not regarded as a feasible option. It is notable that Clintyclay was the first catholic school in Northern Ireland to attempt to transform to integrated status.
Delivering judgment, Mr Justice Treacy held that the Minister’s decision was ‘infected’ by incorrect financial information that the school was in financial difficulties. This mistaken belief had significantly influenced the Minister’s decision to close the school without considering its application to transform. Mr Justice Treacy was critical of the approach taken by the Minister and emphasised how Clintyclay’s attempt to transform its status could have ‘a galvanising impact’ on the integrated sector.
The Court ordered the Minister to retake the decision.
Click here for an article by the Belfast Telegraph.
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