Barriers to Public Interest Litigation in Northern Ireland
- Standing and ‘Victim Status’ under the HRA
- The ‘best’ case
- Litigation alone is insufficient
While PIL itself is an efficient and cost effective use of resources, taking one case can still run up huge costs. This could include the fees needed to cover the development of a case, fees for legal representation and particularly the potential costs that may attach to an unsuccessful litigant (since traditionally the losing side is liable for the other sides costs as well as their own). Costs for a Judicial Review for example, can range anywhere from a few thousand to a hundred thousand pounds.
Most potential litigants do not have such money at their disposal and may not necessarily meet the legal aid test to obtain assistance. In Northern Ireland the Human Rights Commission, the Equality Commission and the Office of the Commissioner for Children and Young People all have funding available to support cases within their remit. All three commissions give preference to ‘public interest’ cases but their funding is relatively limited.
The PILS Project was established in part to address the issue of costs. By offering funding for public interest cases that raise human rights or equality issues, where other funding is not available, the Project can provide access to the court for strategically important cases that are hindered by financial obstacles.
The Project also hopes to overcome the issue of costs in a number of other ways, for example through encouraging applications for Protective Costs Orders (PCOs). These orders can be granted by the judge in a case that raises public interest issues, to guarantee that the litigant is not liable for the other side’s costs if they lose the case or to cap the amount of money which the litigant will have to pay if the litigation is unsuccessful.
The PILS Project also works with the legal profession in Northern Ireland to increase levels of pro bono legal work. It is hoped that in doing so, it will reduce the burden of high legal fees in public interest cases and promote access to justice.
Standing is the term used for someone who has the right to appear and be heard before a court. In order to commence legal proceedings the litigant must show sufficient interest in the issue. An individual directly impacted by the decision of a public body, for example, could have standing to take a judicial review against that public body.
There may also be circumstances in which an organisation, rather than an individual, may wish to initiate a judicial review. The Committee on the Administration of Justice (CAJ), the Family Planning Association of Northern Ireland and Friends of the Earth are examples of organisations that have initiated judicial review proceedings in the Northern Ireland courts. NGO-led litigation can be particularly valuable in public issues cases as it utilises their expertise, experience and knowledge of a particular human rights issue on behalf of vulnerable or disadvantaged people who may be unable or without the capacity and resources to advocate for themselves.
A key difficulty for NGOs litigating on human rights issues however is that the Human Rights Act requires the litigant to be a ‘victim’ of a violation of the Act. This requirement has been interpreted narrowly by the Northern Ireland and wider UK courts to effectively exclude the possibility of an organisation, such as CAJ or Friends of the Earth, from taking a public interest case in their own name on a point of law under the HRA.
Public interest litigation often tests an unclear point of law, or challenges an existing interpretation of the law, and as a result it can be referred to as taking ‘test cases’. Test cases, by their very nature of steering into uncharted legal territory, can create important precedents for the future application and interpretation of such laws. Unlike traditional litigation, which reacts to the facts of an individual case, public interest litigation must take cognisance of the wider public effects, both positive and negative, of any judgment.
Factors that need to be taken into account when considering whether to pursue a public interest case include, among others, the merits of the case, the likelihood of success, whether other avenues of redress have been exhausted, whether litigation is the right tool to address the issue in question, whether it is strategically the right time to take the case, and the wider political and social context of the issue the case seeks to address is also relevant. In this context it is important to find the ‘best’ case, i.e. one that satisfies all or most of the criteria.
PIL alone cannot achieve social change. It must be done in tandem with wider social and political campaigns and advocacy in order to raise awareness and build public support for an issue, to bolster the public interest arguments in the case and to communicate the practical effects of the judgment to those it affects.
It is hoped that the PILS Project Stakeholder Forum can play a key role in building social awareness and support for public interest cases in Northern Ireland.
A large proportion of cases taken by an individual to challenge a law or decision of a public authority may settle out of court before a judgment is made. On the one side public authorities may be reluctant to engage in lengthy and costly litigation, and may also want to avoid a judgment being made against them. On the other side many individuals are understandably reluctant to continue to pursue litigation when the offer of a settlement is presented to them since it offers a quick resolution to their issue and sometimes monetary compensation. Settlement can lead to a satisfactory resolution of the issue for the applicant which can be highlighted to others through media attention and can be used to lobby for legislative change if it is needed. However settlement is often viewed as a barrier to PIL because it means no judicial precedent is set that can be relied on in the future to safeguard similar rights.
The measurement of success in PIL is not simply the judgment in a case, but how it materially improves the position of those it affects. The effective implementation of a judgment is therefore as important as the judgment itself.