Legal tools for Challenging the Cuts

1. Legal tools for Challenging the Cuts Mark McEvoy The Bar Library Belfast

2. Legal tools for challenging the cuts • What avenues of strategic challenge are open? • What are the limitations and pitfalls?

3. 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

4. Legal tools for challenging the cuts S. 75 NIA 1998: Apublic 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.

5. 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

6. Effect of ReNeill: 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.

7. 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)

8. 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)

9. 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.

10. Legal tools for challenging the cuts • Conclusions on s75: • An available tool via judicial review • However threshold appears high (or low, for public authorities)

11. Legal tools for challenging the cuts • Inherent weakness with s.75 NIA is that ‘due regard’ - entirely 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 ColáisteFeirste'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,

12. 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.”

13. 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)

14. 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

15. 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