LEGAL TOOLS FOR
CHALLENGING THE
CUTS
Mark McEvoy
The Bar Library
Belfast
Legal tools for challenging the cuts
• What avenues of strategic challenge are open?
• What are the limitations and pitfalls?
Legal tools for challenging the cuts
• Potential and Limitations of:
• Statutory tool: s.75 NIA 1988
• Common law tool: ‘substantive’ legitimate expectation
after Loreto
• International rights instruments: UNCRPD
Legal tools for challenging the cuts
S. 75 NIA 1998:
A public authority in carrying out its functions relating to
Northern Ireland shall have due regard to the need to
promote equality of opportunity between persons of
different religious belief, political opinion, racial group, age,
marital status or sexual orientation.
Legal tools for challenging the cuts
• Enforcement mechanism for s.75:
• Schedule 9 – Role of Equality Commission for Northern
Ireland
• Key element: Requirement for submission of Equality
Impact assessments (EqIA’s)
• Paragraphs 10 & 11 – Complaints and Investigations
arising from failures to adhere to requirement to submit
EqIA: ASBO consultation (or lack of it) – Re Neill 2006
[NICA] 5: Kerr LCJ: paragraphs 27-30
• s.75 ‘political’ redress v s.76 ‘legal’ redress
• Effect of Re Neill: Judicial review available – but fact
sensitive.
• Cf. position in GB vis-à-vis s.149 and s.156 Equality Act
2010 and Explanatory Notes: “the duties imposed by or
under Chapter 1 of Part 11 do not create any private law
rights for individuals. These duties are, however,
enforceable by way of judicial review.
Legal tools for challenging the cuts
• Public law cases using s.75 have been rare compared to
GB – as noted by Morgan LCJ in JR1 [2011] NIQB 5
• Northern Ireland courts have looked to GB cases to assist
in interpretation of the s.75 duty.
• R (Baker) v Secretary of State for Communities and Local
Government [2008] EWCA Civ. 141:
“What is due regard? In my view, it is the regard that is appropriate in all the
circumstances. These include on the one hand the importance of the areas
of life of the members of the disadvantaged racial group that are affected by
the inequality of opportunity and the extent of the inequality; and on the other
hand, such countervailing factors as are relevant to the function which the
decision-maker is performing.”(per Dyson LJ)
Legal tools for challenging the cuts
• Cf. R (Brown) v Secretary of State for Work and Pensions
[2008] EW8C 3158:
• “There must, therefore, be a proper regard for all the goals that are set out in
s 49A(1) paras (a) to (f) [of the DDA], in the context of the function that is
being exercised at the time by the public authority. At the same time, the
public authority must also pay regard to any countervailing factors which, in
the context of the function being exercised, it is proper and reasonable for the
public authority to consider. What the relevant countervailing factors are will
depend on the function being exercised and all the circumstances that
impinge upon it. Clearly, economic and practical factors will often be
important. Moreover, the weight to be given to the countervailing factors is a
matter for the public authority concerned, rather than the court, unless the
assessment by the public authority is unreasonable or irrational” Aiken LJ,
para 82 (emphasis added)
Legal tools for challenging the cuts
• In JR1, the cautious interpretation advocated in Brown
was adopted in informing the court’s conclusion that a
failure to conduct an EqIA did not automatically equate to
a breach of s.75, and that such failure could be mitigated
by “a preparedness to enter into dialogue and to alter
one’s position as a result of that dialogue”, which the facts
appeared to disclose.
Legal tools for challenging the cuts
• Conclusions on s75:
• An available tool via judicial review
• However threshold appears high (or low, for public
authorities)
Legal tools for challenging the cuts
• Inherent weakness with s.75 NIA is that ‘due regard’ - entirely
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relative to context and therefore neutral
Cf. much stronger examples of statutory duty eg. Article 89(1)
Education (NI) Order 1998:
“It shall be the duty of the Department to encourage and
facilitate the development of Irish-medium education”
Re Coláiste Feirste's Application [2011] NIQB 98
“The imposition of the statutory duty has and is intended to
have practical consequences and legislative
significance…Accordingly it may facilitate and encourage the
IM post primary sector in ways that it need not for other sectors
by taking positive steps or removing obstacles which inhibit the
statutory objective” (per Treacy J,
Legal tools for challenging the cuts
• “Substantive legitimate expectation”:
• Careful thought required as to nature of expectation and balance of
duties
• Quinn’s Application for Leave [2010] NIQB 100
• “The applicant cannot enjoy a legitimate expectation that a public
authority provide services that don't comply with their duty of care nor
can they be ordered by the Court to provide A&E services which are
deemed unsafe… The claimed expectation, in the light of the material
available to the Court, cannot be regarded as legitimate in the
unqualified form in which it is asserted by the applicant. To put it
another way, even if the legitimacy of the expectation was
established, the Court considers that the overriding interest of patient
safety extinguished it.”
Legal tools for challenging the cuts
• Loreto Grammar School’s Application [2012] NICA 1
• “The law of legitimate expectations is based on the
principle that good government depends on trust between
the governed and the Government and that that trust must
be sustained…. But for a moral obligation to give rise to a
legal one it is reasonable for the law to require a clear
unequivocal representation devoid of qualification in the
nature of a promise on the part of the Department to take
a particular course.” (per Girvan LJ, para. 43)
Legal tools for challenging the cuts
• International instruments:
• Limited use of HRA and ECHR to tackle cuts: civil and
political rights
• Other measures – United Nations Convention on the
Rights of Persons with Disabilities
• Incorporated into UK law with effect from 8 June 2009
• PF and JF’s Application [2011] NIQB 20
Legal tools for challenging the cuts
• UNCRPD provision of socio-economic rights, eg
Independent Living shifts ‘onus of proof’ of financial
constraints onto state – now required to advance rational
grounds for policy positions.
• Court will require an objective (as opposed to subjective)
justification for argument on resourcing.
• Clear potential to make use of this instrument in tandem
with s.75