This document provides an overview of tools available in a public law toolkit for challenging decisions or actions of public authorities. It discusses non-legal options like complaints procedures and legal options like judicial review. It outlines the basics of judicial review, including the grounds and process. It also discusses using human rights arguments, highlighting some examples of how human rights have been applied in challenges. Finally, it provides tips for managing disputes with public bodies.

1. PUBLIC LAW TOOLKIT
Melanie Carter
14 October 2010

2. What is in your public law toolkit?
 Non-legal action: using complaints
procedures, ombudsmen, external auditors,
Scrutiny Committee and/or the Monitoring
Officer (local authority decisions)
 Legal action: judicial review, statutory appeals
 Human rights

3. Judicial Review – the basics
 Can only threaten judicial review including
a human rights challenge against a public
authority
 ‘Core’ public authorities
 ‘Hybrid’ public authorities
 Deadlines
 Pre-action protocol letter
 Permission – substantive hearing

4. Judicial Review – the basics (cont.)
 JR is a remedy of last resort
 Funding your case
 Costs
 Nature of Judicial Review: Judicial Review
is not a full reconsideration of the decision
 Don’t clutter the case with particularly weak
or duplicative grounds

5. Grounds
 Error of law
 Error of fact – “misunderstanding or ignorance of
an established and relevant fact”
 Improper delegation or fettering of powers and
duties

6. Grounds (cont.)
 Bad faith and improper purpose
 Inconsistency
 Relevancy/irrelevancy
 Unreasonableness

7. Grounds (cont.)
 Substantive unfairness and breach of
legitimate expectation
 The public body has made clear unambiguous
and unqualified representation that it will act in
a particular way
 The person or body concerned has acted on
that expectation to their detriment, and
 There is no overriding public interest justifying
the decision not to honour that legitimate
expectation

8. Grounds (cont.)
 Procedural impropriety occurs when there has
been a breach of the common law principles
of procedural fairness or where there has
been a failure to comply with a statutory
procedural obligation
 Bias
The key test is whether the circumstances would
lead a fair-minded and informed observer to
conclude that there was a real possibility, or a real
danger that the decision-maker was biased.

9. Grounds (cont.)
 Notice and details of the opposing case
 The opportunity to put forward one’s own case
properly
 Fairness as between opposing parties
 Reasons for decisions

10. Human Rights
 Time limits (3 months/one year)
 Who can bring a claim (victim)
 Remedies
 Quashing secondary legislation
 Declaration of Incompatibility
 Damages

11. Human Rights (cont.)
 The right to life (Article 2)
 The right not to be tortured or treated in an inhuman or
degrading way (Article 3)
 The right to be free from slavery or forced labour (Article 4)
 The right to liberty (Article 5)
 The right to a fair trial (Article 6)
 The right to no punishment without law (Article 7)
 The right to respect for private and family life, home and
correspondence (Article 8)
 The right to freedom of thought, conscience and religion
(Article 9)

12. Human Rights (cont.)
 The right to freedom of expression (Article 10)
 The right to freedom of assembly and association (Article
11)
 The right to marry and found a family (Article 12)
 The right not to be discriminated against in relation to any of
the rights contained in the European Convention (Article 14)
 The right to peaceful enjoyment of possessions (Article I of
Protocol I)
 The right to education (Article 2 of Protocol 1)
 The right to free elections (Article 3 of Protocol 1)

13. Human Rights (cont.)
 Human rights argument may be
persuasive, not decisive
R (on the application of Ghai) v Newcastle
City Council (Ramgharia Gurdwara, Hitchin
& Others intervening)

14. British Institute of Human Rights
Act – Changing Lives

15. Protecting human dignity
 Learning disabled man provided with
inadequate accommodation (Article 3 and
8)
 Older woman strapped into her wheelchair
against her wishes (Article 3)

16. Challenging discrimination
 Non-English speakers sectioned without an
interpreter (Article 5 and 14)
 A woman being told she could not
volunteer at a local school because she is
a transgender person

17. Promoting participation
 Disabled man denied support to attend gay
pub (Article 8 and 14)
 Children in hospital not having any other
form of structured interaction with each
other beyond one hour of teaching per
week

18. Challenging brutality
 Parents banned from visiting their son after
complaining about bruising on his body
(Article 3 and 8)
 Mental health patient restrained in a painful
manner (Article 3)

19. Taking positive steps to protect human
rights
 Securing extra support for a woman with
suicidal tendencies (Article 2)
 Transport assistance secured for man with
mental health problems (Article 2 and 8)

20. Using human rights where resources are
an issue
 Children denied visits to their mother
(Article 8)
 Older couple split up by local authority after
65 years of marriage (Article 8)

21. Using human rights to challenge blanket
policies
 Challenging the blanket use of tilt-back
chairs in a nursing home (Article 3 and 8)
 Mother threatened with eviction whilst
giving birth (Article 3)

22. Protecting human rights in the context of
contracted out services
 Learning disabled man searched by care
home staff each time he returns from being
out unsupervised (Article 8)
 Residential care home refuses to bathe
larger woman (Article 3 and 8)

23. Using human rights to support family and
private life
 Woman fleeing domestic violence able to
prevent her children being taken into foster
care (Article 8)
 Stopping dawn raids at an accommodation
facility for asylum seekers (Article 8)

24. Fair procedures
 Mental health patient voluntarily admitted
to hospital unable to leave the ward (Article
5)

25. Other remedies
 Complaints
 Local authorities: Monitoring
Officer/Scrutiny Committee/External
Auditors
 Ombudsman schemes

26. Managing disputes with a public body
 Gather information
 Analyse the problem
 Prepare your evidence
 Decide tactics

27. Melanie Carter
Bates Wells & Braithwaite London LLP
2-6 Cannon Street
London EC4M 6YH
: 020 7551 7610
Email: m.carter@bwbllp.com