Below are a number of seminal examples of public interest litigation from the
England and Wales
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
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 Pretty and Purdy cases on Assisted Suicide
These two cases demonstrate the value and significance of strategic public interest litigation in testing previously unclear points of law; here the highly sensitive issue of assisted suicide.
Dianne 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 Dianne’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 seven years later.
Debbie Purdy suffers from progressive Multiple Sclerosis and when her illness becomes unbearable she intends to end her life but expects that she will be unable to 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 Director of Public Prosecutions in
Irene Grootboom and about 900 others had been moved and evicted from place to place, living in informal squatter settlements in “deplorable conditions” without basic services such as water, sewage or refuse removal. They had been left with literally nowhere to go. Mrs Grootboom and the others asked the court to enforce their right to housing under S.26 of the South African Constitution, by ordering the government to make provision for them.
The government argued that they already had a housing programme and that the community should put their name on the waiting list. There was a substantial waiting time for people on the list and the court found that it was unreasonable to ask people who have nothing to simply wait their turn; to live on the streets until the government can provide a house. The Court argued that while Section 26 does not provide an immediate right to housing, it does oblige the State to devise and implement a coherent, co-ordinated programme in order to progressively realise the right. It found the current programme inadequate in this regard and made a declaratory order requiring the state to act to meet its obligation by devising, funding, implementing and supervising measures to provide relief to those in desperate need.
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
Right to Food case
In 2001 mass deaths occurred in the Rajasthan state of
The People’s Union of Civil Liberties (PUCL) petitioned the Indian Supreme Court to enforce both the food scheme and the Famine Code, which permitted the release of stocks in times of famine. They argued that the government’s inaction violated the right to food, considered part of the right to life under the Indian Constitution. Over the next two years various interim orders were made by the Court with little effect but in 2003 a strong judgment declaring that the right to life had been imperilled was issued. The Court declared that “what is of utmost importance is to see that food is provided to the aged, infirm, disabled, destitute women, destitute men who are in danger of starvation, pregnant and lactating women and destitute children”.
The government was ordered to implement the Famine Code for three months, double the grain allocation for the Food for Work scheme, increase financial support for the scheme, grant a ration card for free grain to all individuals without means of support (older persons, widows, disabled adults) and progressively implement the existing mid-day meal scheme in schools. Shops that were licensed to provide the grain were ordered to stay open and provide the grain at a set price and it was also ordered that the rights of families below the poverty line be publicised.