Below are a number of seminal examples of public interest litigation from the UK and further afield.
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Trust fails to assess needs of carers and families of children with autism
This case concerned the failure of the Western Health and Social Care Trust to carry out assessments of the needs of carers and families of children with autism in a timely manner in breach of its obligations under the Children (Northern Ireland) Order 1995 (the Order).
The child in the case (HN) had a diagnosis of Autism Spectrum Disorder and ADHD. HN’s parents were separated. His mother was his primary carer throughout most of his life. In 2008 a carer’s assessment carried out by the Trust recorded that HN’s mother was in urgent need of respite. In March 2009 she was informed that there was no budget available to meet her assessed needs. By this time the situation with HN had deteriorated even further resulting in HN’s placement in a child and adolescent mental health unit for a time, with HN returning home at weekends. His mother found it difficult to cope at weekends.
On 29th January 2009 both a carer’s and a UNOCINI (Understanding the Needs of Children in Northern Ireland) re- assessment were requested from the Trust. Despite several reminder letters no response was received to these requests. During the period from 29th January 2009 to 15th May 2009 no service was provided to the family to assist them with the difficulties that HN’s autism caused him and his family during his weekend visits.
In dealing with an application for judicial review, the judge declared that the duty on the Trust imposed by the Order includes a duty to provide a range and level of personal social services to the children in need within its area and to the families and carers of those children.
The Judge concluded that the Trust had an unconditional statutory obligation to carry out the assessments which were requested in January 2009 and went on to declare that the Trust was in breach of its duty under the Order by failing to carry out an assessment on the applicant’s mother as the carer of a disabled child within a reasonable time following her request to do so in January 2009.
The judge, in looking at the broader issues in this case (which had been highlighted by the Children’s Law Centre), referred to a letter from the Trust which stated that from 1st April 2007 until 23rd July 2009 there had been 73 requests to carry out such assessments in the Trust area, of which 32 had been dealt with and 41 had not. In respect of those 32 assessments, 54 unmet needs had been identified and 13 of those had been addressed, leaving 42 outstanding.
In relation to this the court declared that the Trust was in breach of its duty under the Order to carers who had requested such assessments, by failing to carry out assessments within a reasonable time.
This case is an important example of how litigation can force public authorities to engage with their duties in a meaningful way and how one case can impact on many other vulnerable people in similar circumstances to the Applicant without each individual having to go to court.
Challenge to the Stop and Search Powers of the Police
Under sections 44-47 of the Terrorism Act 2000 a senior police officer can, within a defined geographical area, stop and search any person and anything they are carrying if they consider it expedient for the prevention of acts of terrorism.
In September 2003 two people, Gillan and Quinton, were stopped by police under sections 44-47 of the Act on their way to a demonstration outside an arms fair in London. They were detained for approximately 5 minutes and 20 minutes respectively and despite Gillan, who is a journalist, showing police her press card she was ordered to stop filming. Both argued that the use of the section 44 power breached their rights under Articles 5, 8, 10 and 11 of the Human Rights Act 1998 (HRA).
In January 2010, after an unsuccessful judicial review and a subsequent appeal to the Court of Appeal and the House of Lords, Gillan and Quinton received a positive judgment from the European Court of Human Rights. The Court found a clear interference with the Article 8 right to private and family life and concluded that the interference was not “in accordance with law”. It was judged that the wide discretion conferred on police, both in the authorisation of the power and its application, “had not been curbed by adequate safeguards so as to offer the individual adequate protection against arbitrary interference”.
Cases such as this demonstrate the far-reaching impact of public interest litigation and the essential role that it can play in providing a check on the Government to ensure that they are upholding their human rights obligations. It has proved to be a valuable tool in challenging the barrage of counter-terrorist measures and legislation that have been introduced over the last ten years.
The Cases on Assisted Suicide
The following cases demonstrate the value and significance of strategic public interest litigation in testing previously unclear points of law. A number of cases have analysed the legal position in the highly sensitive area of assisted suicide.
In the first case, Diane Pretty was suffering from progressive terminal motor neurone disease. She wanted to take steps to end her own life but was physically unable to do so unaided. An application was made to the Director of Public Prosecutions (DPP) for an assurance that Diane’s husband would not be prosecuted under the Suicide Act if he helped her take her own life. The application was refused and the DPP’s decision was upheld by the High Court in October 2001 and the European Court of Human Rights the following year.
While Dianne’s case was unsuccessful it prompted a nationwide public debate on the issue of assisted suicide that set the scene for another case on assisted suicide a number of years later.
The second case concerns Debbie Purdy who suffers from progressive Multiple Sclerosis. At the time of her litigation, she intended to end her life when her illness became unbearable. However, she expected that she could not do this without her husband’s assistance. In 2008 she took a case against the DPP, not seeking an assurance that her husband would be immune from prosecution like in the Pretty case, but seeking clarification on the circumstances in which the DPP would prosecute someone for assisted suicide. Ms Purdy argued that the failure of the DPP to provide clear guidelines on the issue breached her right to private and family life under Article 8 of the Human Rights Act 1998. The Court agreed and ordered the DPP in England and Wales to publish a set of guidelines on prosecutions for assisted suicide. The guidelines were published in February 2010.
Most recently, the High Court in England and Wales decided in August 2012 that only Parliament can change the law to allow people to exercise the right to end their own lives. Tony Nicklinson, who suffered from ‘locked-in syndrome’ before passing away late last year, along with another severely disabled man known as ‘Martin’ were unsuccessful in the High Court battle to be allowed the right to die with medical assistance. Mr Nicklinson became paralysed seven years ago after a serious stroke and had campaigned for the right to have assistance in ending his life. Martin, also a sufferer of locked-in syndrome, sought permission for volunteers to assist him in travelling to a clinic for medical professionals to end his life.
The court held that it was for Parliament and not the courts to decide if the law should be changed. The court said that allowing the two men to be assisted with ending their lives would have implications far beyond their individual cases and could lead to a major change in murder laws: “Under our system of government these are matters for Parliament to decide, representing society as a whole, after parliamentary scrutiny, and not for the court on the facts of an individual case or cases.”
The ruling was welcomed by pro-life campaigners such as Care Not Killing and SPUC Pro-Life. Meanwhile Pro-Euthanasia campaigners from the Secular Medical Forum noted the implications of the decision for those like Nicklinson who wish to end their own suffering.
Shortly after the judgment was delivered by the Court, Tony Nicklinson passed away after developing pneumonia. In January 2013, Nicklinson’s wife Jane was granted leave to continue her late husband’s challenge to the existing law on murder and assisted suicide. In July 2013, the Court of Appeal considered Tony Nicklinson’s appeal along with the case of another individual called Paul Lamb. Martin’s appeal was considered separately.
In relation to the cases of Nicklinson and Lamb, the Court upheld the original ruling of the High Court. Lamb and Nicklinson's lawyers argued there should be a defence of necessity available to any doctor assisting someone to die and that the current law of murder is incompatible with the right to respect for private and family life under article 8 of the European Convention on Human Rights. That article includes a right to autonomy and self-determination at the end of life. Dismissing Lamb and Nicklinson's appeal, the judges said that a blanket ban on assisted suicide or euthanasia is a "proportionate interference" with their article 8 rights in relation to their self-determination at the end of their lives.
Martin argued there ought to be clearer guidance from the DPP about what action might be taken against medical staff who accompany a patient to the Dignitas clinic in Switzerland. By a 2:1, majority, the Court of Appeal allowed Martin’s appeal. The majority noted ‘In our judgment, the [DPP's] policy is in certain respects not sufficiently clear … in relation to healthcare professionals. It is not surprising that they are reluctant to assist victims to commit suicide.’
The Court also observed ’It is not impossible or impractical to amend the policy so as to make its application in relation to cases [involving those who are not members of a patient's immediate family] more foreseeable than it currently is.’
However, there are strong indications that all cases will fall to be heard by the Supreme Court. Lawyers on behalf of Nicklinson and Lamb, and the DPP has signalled its intention to appeal the verdicts delivered.
South Africa is particularly significant in the context of public interest litigation in that its Constitution legally enshrines social, economic and cultural rights. As a result its Courts have produced a number of progressive and informative decisions which demonstrate how these rights can be adjudicated upon and enforced in practice.
The Treatment Action Campaign (TAC) Case
This case challenged the decision of the South African Government to provide restrictive access to Neviropine, an anti-retroviral drug, to expectant mothers with HIV/AIDS in order to stop the disease being transmitted to their unborn children. The TAC successfully argued that the government’s decision was unconstitutional. The Court found that the government was constitutionally obliged to plan and implement an effective, comprehensive and progressive programme for the prevention of mother-to-child transmission of HIV throughout the country in order to progressively realise the right of access to healthcare for pregnant women and their newborn children. This was stipulated to include the immediate removal of restrictions on the availability of Neviropine to pregnant women at public hospitals.
The case provides a particularly inspiring model for integrating political and legal action. The TAC built alliances across classes, with churches, media and the unions and 5,000 people marched to the court in Johannesburg at the opening of the hearing. The case was as effectively won outside the courts as it was inside and demonstrated how social activism can be used alongside legal action to provoke change.
The Case on the Right to Education
This case revolved around the obligation on all India’s States and Union Territories to ensure the provision of free and compulsory education, as is their constitutional duty, under the Right to Education Act. India’s Supreme Court ordered that all schools, whether private or state-run, must provide proper toilet facilities, drinking water, sufficient classrooms and capable teaching staff within six months.
The NGO 'Environment and Consumer Protection Foundation' played a pivotal role in bringing the issue at hand to the attention of the courts. The organisation had been litigating for eight years for a direction that governments must provide basic infrastructure in government-run schools, to encourage compliance with the Right to Education Act. Almost 800,000 schools were affected by the improper infrastructure complained of, at both primary and secondary level. This case was therefore essential to ensure compliance with the right to education throughout India. According to research conducted by the Right to Education Forum, a civil society group of around 10,000 non-governmental organisations, it was apparent that previous judgments of the court had not been complied with.
In October 2011, the court had issued an interim order which said: "it is imperative that all schools must provide toilet facilities. Empirical researches have indicated that wherever toilet facilities are not provided in schools, parents do not send their children (particularly girls) to schools. It clearly violates the right to free and compulsory education of children guaranteed under Article 21A of the Constitution”.
It was held that the right to education cannot be enjoyed unless basic infrastructure is provided by the state. The Chief Secretaries of all States were thus directed to ensure that separate permanent toilets for boys and girls were constructed in all schools on or before March 31, 2012. However, it was found in April 2012 that one in ten Indian schools still lacked proper drinking water facilities while 40% did not have functional communal toilets. Another 40% lacked a separate toilet for girls.
The court’s most recent judgment, in October 2012, came after a private petition was filed by the Environment and Consumer Protection Foundation. The court recalled that in its April 2012 judgment it had upheld the Right to Education Act and ordered full implementation of the provisions enacted by Parliament to make the right to education meaningful for children. The court said that lack of toilets and drinking water “clearly violate the right to free and compulsory education of children”. The court stated that children need to “study in a clean and healthy environment” and said its ruling applied to state and privately run schools. State governments therefore must provide “toilet facilities for boys and girls, drinking water facilities, sufficient classrooms, appointment of teaching and non-teaching staff etcetera” if not already provided, within six months, by April 2013.
It is worth noting that instead of passing another order for implementing its earlier directions, the court this time passed a judgment so that it could initiate contempt action against a non-complying state. This judgment demonstrates that the right to education is of significant importance. It can be impacted not only by a failure to provide education, but also by the failure to provide adequate facilities in the learning environment.
The Case To Tackle Harassment and Violence In The Workplace
This petition by Medha Kotwal Lele and others aimed to force the Government to enact legislation which will ensure a safe, harassment and violence free working environment for all women in India. The case arose when Medha Kotwal Lele, coordinator of Aalochana, a centre for documentation and research on women and other women’s rights groups, together with others, petitioned the Court highlighting a number of individual cases of sexual harassment and arguing that the Vishaka Guidelines were not being effectively implemented by the central and state governments of India.
The Vishaka Guidelines are guidelines against sexual harassment of women in private and public sector workplaces, issued by the Supreme Court of India in Vishaka and Others v. State of Rajasthan and Others (1997) 6 SCC 241 in 1997. The 1997 Vishaka case involved the serious sexual assault of a publicly employed social worker in her workplace. The Court stated that a woman’s Constitutional rights to life, to equality and to practice any profession or carry out any occupation, demanded safeguards against sexual harassment in the workplace. In the absence of legislative safeguards, the Court established the Vishaka Guidelines, which were to be treated as a declaration of law and were to apply until relevant protective legislation was enacted by Parliament. They set out a series of obligations on employers to prevent or deter acts of sexual harassment and to remedy occasions where such acts take place. Since the Vishaka Guidelines were handed down, the “Protection of Women against Sexual Harassment at Workplace Bill 2010”, which seeks to provide the requisite protection, was passed in September 2012. However, the law itself only came into force in August 2013.
The petitioners in the present case argued that women continued to be harassed in the workplace because the Guidelines were being breached in both substance and spirit by state functionaries. They called for the state Governments to fully implement the Guidelines in all public and private workplaces by introducing thorough legislation that will ensure a safe working environment for women.
The Court stated that the Vishaka Guidelines had to be implemented in form, substance and spirit. It noted that the Guidelines require both employers and other responsible persons or institutions to observe them and to help prevent sexual harassment of women. The Court held that a number of states were falling short in this regard. It also held that the Vishaka Guidelines should not remain just symbolic but rather shall provide direction until the legislative enactment of the Bill.
It is hoped that the final outcome of this petition will lead to the full implementation of the Vishaka Guidelines and of the new legislation, to allow for prosecution of the perpetrators of sexual harassment, full redress for the victim and proper monitoring of all public and private employers to ensure a safe, harassment and violence free working environment for all women in India.