Irving, Alice --- "Activist lawyers: public law as a tool for social justice. Downie Stewart Law and Society Lecture 2023" [2023] OtaLawRw 2; (2022) 18 Otago LR 17

Last Updated: 7 December 2024

Downie Stewart Law and Society Lecture 2023

Downie Stewart Law and Society Lecture 2023

Activist Lawyers:

Public Law as a Tool for Social Justice

Alice Irving*

I Introduction

It is a privilege and pleasure to be back at the University of Otago. My time in the Faculty of Law and on the Social and Community Work Programme at Otago fundamentally shaped me. They imparted to me the love of the law, but more importantly they instilled in me a passion for human rights and social justice.

I am sure many alumni of my vintage will remember the former dean Mark Henaghan reading to us Oscar Wilde’s “The Happy Prince” at the end of the family law paper which he taught. Wilde tells the story of the statue of a prince. The statue stands above a city, gilded in gold, adorned with precious gems. A swallow alights on the statue and discovers it is weeping. When the swallow asks why, the statue responds: “When I was alive and had a human heart, I did not know what tears were, for I lived in a palace where sorrow was not allowed to enter. My courtiers called me the happy prince and happy indeed I was, if pleasure be happiness. So I lived and so I died. And now that I am dead and they have set me up here so high, I can see all the ugliness and the misery of my city. And though my heart is made of lead, I cannot choose but weep.” Piece by piece, the happy price asks the swallow to take his precious gems and his gold and give them to those who are in need, until the statue is quite ruined and the swallow drops dead from his exertions. The moral of this story for us law students, as drawn out by Mark Henaghan, was that we were the happy princes; our legal education was our gold and gems, and we should spend them in the service of others. Pretty dramatic. But it really landed with me. So too my social work studies were infused through and through with an emphasis on service. I am so honoured to see some of my former social work lecturers here today.

Social justice was a key theme for me during my time here at Otago. My topic today is: public law as a tool for social justice. So how am I going to tackle this topic? I will be focusing on judicial review. As you no doubt know, a judicial review is a challenge to an action or decision of the government or some other public body. When I talk about strategic judicial review, what I mean is the use of judicial review challenges to bring about change which goes beyond the individual claimant in the

* Barrister, Doughty Street Chambers. Delivered at the University of Otago, 16 March 2023.

case. An example may be a challenge to a government policy which impacts many people.

This is not an academic lecture. I will not be plumbing the depths of debate as to the proper role of the courts in democratic society or talking about specific trends in case law, as interesting as that all is. This is a lecture from a practising lawyer’s perspective. I will be telling you stories from my practice and using some other United Kingdom cases as examples. My hope is to give you some insight into how practitioners use judicial review as a tool for social justice. Those insights are insights you could not necessarily glean from reading just the case law reports.

What I have not explained is why my lecture is entitled “Activist Lawyers”. I have taken this “kind” description from the former Home Secretary of the United Kingdom, Priti Patel. For the last few years, public lawyers in the United Kingdom who have challenged government decision making via judicial review have been the subject of attacks by the Conservative government. A Home Office official video posted on Twitter blamed activist lawyers for delaying the deportation of individuals from the United Kingdom. This rhetoric continues. Just this month, the current Home Secretary, Suella Braverman, herself a qualified barrister, emailed Tory Party Donors, bemoaning an activist “blob” of left-wing lawyers, which has to be my favourite slur to date. The chair of the bar has said in response that “[l]awyers represent their clients within the legal framework that Parliament creates... Right-thinking people from the across the political spectrum understand this. It is essential to the rule of law that members of the Cabinet do too.” That’s a good starting point for me to talk about the power of judicial review and its limits.

As a barrister, I am taught to signpost what I am going to say when I speak at the beginning of submissions. I will make three main points. First, a lot of impact achieved by judicial review happens without stepping foot in a courtroom at all. You will not see that in the cases you read in law school. Second, a legal case can be just a small part of a much broader strategy. Third, judicial review has its risks and limitations; I have to give you the health warnings that come with practising in this area. Then I will make some comments about how all of this might be relevant to Aotearoa.

II Work outside the Courtroom

A lot of the work of public lawyers takes place outside the courtroom. Many if not all of the cases that make it to court are hard cases; cases where the law is unclear or the hopes of the claimant winning are frankly marginal. But many more cases are resolved, often in favour of the would-be claimants, without the court getting a look-in.

A large proportion of my work concerns the rights of disabled people. Particularly at the early stages of the COVID-19 pandemic, many decisions by the United Kingdom government were made without considering the particular circumstances and vulnerabilities of disabled

people. For example, in 2020 regulations were made which required those entering the United Kingdom to self-isolate for 14 days unless they were travelling from particular exempt countries. These requirements were, for the United Kingdom at least, relatively strict. A person self-isolating was not allowed to leave the property except for exceptional circumstances such as for urgent medical care or to attend the funeral of a close family member. A failure to adhere to these rules could result in a significant fine.

My client was a young autistic man. He also had OCD and a panic disorder. He was in France when these rules were imposed, but had been intending to return home. Given his complex needs, it would not be possible for him to adhere to the self-isolation requirements without significant stress and likely a quite significant long-term impact on his well-being. The regulations governing the self-isolation regime provided no exemption for disabled individuals. In turn, the guidance that was issued by the government to supplement those regulations made no mention at all of disability. I was instructed to prepare an urgent judicial review challenge to this failure to make an exemption for disabled individuals. We had about two weeks within which to work before he was due to come back to the United Kingdom.

The first step was to send a formal legal letter to the relevant Secretary of State, setting out our proposed claim. We argued, amongst other things, that the regulations and guidance were indirectly discriminatory, contrary to the equality legislation in the United Kingdom, and a breach of our client’s human rights. In response to the letter, the Secretary of State updated the guidance to make it clear that some of the exemptions did apply to disabled individuals. That all happened within a fortnight. Our client was able to return home without the worry of being subjected to enforcement action. That is a very long way of saying that, as in many areas of law, a lot of legwork happens in the shadow of potential litigation.

Generally speaking, when you have a public body over a barrel, they will concede. They don’t want the exposure and there are a lot of straightforward cases – in fact, perhaps more than you would think – of law breaking by public bodies that can be dealt with in this way. This links to another way in which threatened judicial review challenges might be used to advance social justice. Sometimes, what you are trying to tackle is not a policy decision; it is not a set of regulations or guidance you can target with a judicial review claim. There is something more systemic causing injustice.

For example, consider the provision of educational support to disabled children. In England, there is a clear duty on local authorities to provide special educational support to disabled children in defined circumstances. That duty is frequently breached. Local authorities do not give disabled children the special educational provision that they are legally entitled to. In most cases if a formal legal letter is sent to the relevant local authority, they will concede, and the provision will be

secured. Nevertheless, despite legal challenges in some individual cases, this sort of breach continues to happen on a systemic scale. There are not enough lawyers to help all those affected to send pre-action letters. Even if there were, many people cannot afford to employ lawyers to do this. So how are we meant to challenge the systemic failure?

I am currently working with an education charity with grant funding from a foundation interested in access to justice to develop what we call a “pre-action project”. The project aims to enable greater access to legal pre-action letters. The broader goal is to scale up the number of individuals sending legal letters to local authorities. It is hoped this will change the culture of local authorities, because they realise they cannot break the law with impunity.

The structure of the project is simple. We prepare model pre-action letters for simple and common cases of unlawfulness. We train non-lawyer volunteers at frontline organisations to adapt these letters in individual cases. We arrange a rota of lawyers to do a light-touch review of any letter that has been adapted before it is sent out. We also have lawyers on hand to pick up the very low number of cases where the pre-action letter does not resolve the issue for the client. This allows more pre-action legal letters to be produced by fewer lawyers at less cost, while utilising the strength that exists within frontline organisations. We also aim to extend the project to self-advocacy organisations, to directly include the communities that are affected by the unlawfulness.

While the education pre-action project is still in its infancy, this is a tactic that has already been used in the United Kingdom in other areas. Pre-action projects are an example of the innovative use of public law and legal tools to drive social change. I cannot see why this approach would be limited to judicial review pre-action letters. It all depends on finding the right combination of a pattern of clear unlawfulness, suitable frontline organisations, and lawyers willing to upskill those organisations.

III Strategic Litigation and Judicial Review

Judicial review is often just one tiny part of a much broader strategy. It is one tool amongst many to effect social change and, frankly, it is a pretty blunt tool in many respects.

I am going to talk about a case that is not my own, decided in 2016. The change that was sought was not made until 2018. The case was Regina (National Aids Trust) v National Health Service Commissioning Board (NHS England).¹ National AIDS Trust wanted the NHS to fund PREP, i.e. pre-exposure prophylaxis, which is taken on a preventative basis by those at high risk of being infected by HIV and is highly effective in stopping its transmission. The NHS refused to fund PREP. Their reason was highly technical. They said that the legislation governing their functions meant

1. Regina (National Aids Trust) v National Health Service Commissioning Board (NHS England) [2016] EWCA Civ 1100, [2017] 1 WLR 1477.

they did not have the power to fund PREP, because local authorities were meant to fund this sort of thing. Local authorities, fairly predictably, said “it is not our problem; it is the NHS’s problem”. This was a classic buck-passing exercise that unfortunately public lawyers see all the time. A challenge was brought against the NHS’s refusal to fund PREP. The case turned entirely on a very dry technical point of statutory interpretation.

Reading it in isolation, you would wonder what the big deal is. All the Court of Appeal held was that the NHS did have the power to fund PREP. They did not say they had to fund PREP, or that they should, or anything of that sort. Realistically, the courts were not the right place to have an argument about whether PREP should be paid for by the state. Decisions about which drugs are funded are made by expert decision-makers working within budgets and balancing many competing interests. It is an area in which the courts are loath to intervene. Nevertheless, the legal case did provide one tiny piece of the puzzle. It shut down technical arguments and buck-passing. After the win in the Court of Appeal, following tireless work from individuals and organisations running social campaigns, the NHS did relent and fund PREP. We do not work in isolation as lawyers.

A second example in this regard is from my own case load. I was relatively recently instructed by a client, who is of Kazakh ethnicity and was born in the Xinjiang Region in China. He, like thousands of other ethnic minority people in Xinjiang, had been arbitrarily detained, taken to a re-education camp, and then forced into unpaid labour. He now lives in the United Kingdom and very bravely campaigns to raise awareness of the genocide of the Uyghur and other ethnic minorities occurring in Xinjiang. That comes at great personal risk to himself. He had agreed to act as a claimant in strategic litigation against the United Kingdom government for their failure to ban the import of cotton products from the Xinjiang Region in China. It probably goes without saying that a judicial review claim of this sort, concerning sensitive geopolitical decisions, is ambitious. But the purpose of the claim was not just or even mainly to win in court.

The pre-action stage of the claim was funded by a private donor who also funded a parallel media campaign. The fact the government was being threatened with legal action was a hook for media coverage. The aim was to raise awareness of the situation in Xinjiang and to apply political pressure on the United Kingdom government to take action. The goal was in no small part to put the United Kingdom government in a difficult position. The government has expressed horror at the abuses occurring in Xinjiang, but at the same time has done little to curb the import of goods tainted by forced labour. Economic considerations are clearly a factor, but the government is not going to want to say in terms that they are tolerating complicity in genocide for the sake of economic gain. A claim challenging the government’s failure to ban, for example, cotton imports will force the government to justify itself in an open court. That again is a means of applying political pressure.

Our legal team is working in this case in close collaboration with the World Uyghur Congress, leading academics and activists to coordinate a litigation and media strategy. Our case is one of two being pursued on different legal bases. The first claim was heard late last year and was unsuccessful, but it did garner significant media coverage.

The second point I wanted to make then was this: when you read a case as a student, you see that one side has won and the other lost. There is often a lot more going on in the background. Of course, we do not set out to lose. But sometimes with the tougher issues, there is a bigger picture.

IV Limitations of Judicial Review

That brings me naturally to the third of my points, the risks and limitations of judicial review. I have already referred above to judicial review as a blunt tool, and you will be familiar with its limits.

Judicial review is not a merits review. As a claimant lawyer my job is in many ways a creative one. I am faced with a public body decision my client wishes to challenge, but I am not allowed to stand up in court and say that the decision is wrong. I have to find a way to say that the decision is unlawful, unfair or unreasonable, in accordance with the legislation that applies and the common law framework. Sometimes, it is not possible to find an angle. In many cases, we have to advise that judicial review is not the right tool. I still recall the hours I spent helping to research a potential case concerning the use of public health messaging to push Tory Party political messages. We searched in vain for any way to challenge what appeared to be a misuse of public funds. We were not successful in finding an argument we could advance. I will never get the hours I spent watching Boris Johnson giving speeches back. In other cases, you might identify potential arguments, but they are very difficult to win. The reality is that claimant public lawyers lose a lot. The United Kingdom Ministry of Justice statistics for 2020 show that of those cases that made it to the final hearing in the United Kingdom, the success rate was just thirty percent. That does not account for those judicial review cases that fell at the first hurdle – you have to get permission before you can proceed to a full hearing.

From a practical perspective, the risk of losing means the risk of costs liability, something I never thought about at law school. It is very expensive to run a judicial review. If you lose, the standard rule is that you don’t have to pay just your own legal bill, but your opponent’s as well. In the United Kingdom, there is legal aid funding for judicial review claims in many cases. If a claimant meets the strict eligibility criteria, then their legal fees are paid by the state. If they lose, subject to certain caveats, they will not have to pay their opponent’s costs. It effectively means they can bring an action for free. In many cases there is no legal aid available, for example where the individual has some capital (and I cannot emphasis how low the threshold is before you are no longer eligible for legal aid), or it is not an individual bringing the case but a public interest organisation. If you do not have legal aid funding, you

have to find another way.

In the United Kingdom, there has been a significant rise in crowdfunding of public interest litigation. In other cases, the legal team will act pro bono or at significantly reduced rates. Often people ask: “How are you meant to survive if you are doing these cases pro bono? Isn’t that unfair?” Let me be honest here. Some lawyers in the United Kingdom certainly are earning very little money, criminal lawyers amongst them. But most of us can afford to take a bit of a hit because we have got other work that is keeping us in food and rent. It is something we can choose to do. It is not as selfless as it seems, because if you are on a high-profile case, it is good for your career.

When it comes to the risk of paying the other side’s costs, things are a bit more complicated. You cannot ask the other side to act pro bono. Sometimes it is possible in the United Kingdom to obtain what we call a costs capping order. That means you get an order quite early on in proceedings (which is important because then you know what kind of costs risk you are at) capping the amount of money the other side can claim from you if you lose. That will only be granted in certain circumstances, but it is not unusual in the United Kingdom when it comes to high profile public interest litigation.

Even if you can afford to bring proceedings and you win, there is one other limitation to be aware of with judicial review: the limited range of remedies that you might obtain. Sometimes the court will tell the defendant to do what you want them to do. More often, the court will find that a decision or action is unlawful and they will leave it to the decision maker to decide what to do next. The decision maker does not always do what you want. For example, you might succeed in showing that the procedure followed in reaching a decision was unfair and unlawful. The decision is set aside by the court. The decision maker might then find a way to retake the same decision without making the same mistake and you are back to square one.

There are serious limitations in using judicial review. It is always necessary to carefully reflect on whether it is in fact the right tool for the job. That is not meant to be discouraging. These cases are effective in bringing about change, but only in the right circumstances.

V Relevance to Aotearoa New Zealand

What does any of this have to do with Aotearoa, given that I practice in the United Kingdom? I must caveat these observations with the fact that I am not a New Zealand practitioner nor an academic of New Zealand law. However, I hope my comments will be a starting point for discussion and further thought.

I think it is fair to say that judicial review is used less in New Zealand than in the United Kingdom. However, there have been some recent high profile judicial review cases. One example is the successful Grounded Kiwi challenge to the Managed Isolation and Quarantine

(MIQ) system during the pandemic. Another is the challenge made by the campaign group, Make It Sixteen, to legislation setting the voting age at 18. The Supreme Court declared that the legislation was inconsistent with the right under the New Zealand Bill of Rights Act to be free from discrimination on the basis of age, and that discrimination against sixteen- and seventeen-year-olds had not been justified by the government. That is a good example of letting the government decide its next move. The Supreme Court did say it might be possible for the government to provide a justification for differential treatment that satisfies the court, but they had not done so yet.

What these cases do demonstrate is that New Zealand courts are willing to get their teeth into judicial review challenges. I would encourage you to think of judicial review as a potential tool to be used more often. Talking to people practising in New Zealand, I think the biggest barrier is cost. New Zealand does not have the same legal aid system that the United Kingdom has. In the face of this difficulty, I would say that crowdfunding is a really important tool. Grounded Kiwi was crowdfunded in part. They raised almost $200,000 for that challenge, although lawyers working on the case also acted in part pro bono. In the United Kingdom, for example, the Good Law Project is a company that pursues strategic public interest litigation across a range of areas. They raised around six million pounds in 2022 alone through donations and crowdfunding for specific cases. I think there is real scope for organisations that are interested in strategic litigation to fundraise in this way.

As for cost capping orders in the United Kingdom, we have specific provision for that in our Civil Procedure Rules. There is no direct parallel in New Zealand, but there is emergent jurisprudence in the area. The first protective costs order was made in October 2022 in the case of Gordon v Attorney-General.² The claim, which concerned the compulsory treatment order regime under the Mental Health (Compulsory Assessment and Treatment) Act 1992, was brought by two academics at the University of Otago. The Human Rights Commission, who intervened in the proceedings, said that the case raises significant human rights issues, including in relation to the right to refuse medical treatment, the right to be free from discrimination, and the right not to be arbitrarily arrested and detained. The two claimants applied for a protective costs order at the beginning of the proceedings. Their first application was unsuccessful, because the court was unsure whether the claimants would still litigate, even if a protective costs order was not made.

The claimants applied again and were successful. Two things changed between the first and the second applications. First, the claimants put in clear evidence stating that they could not afford to run the risk of having to pay costs and would discontinue the litigation if a protective costs order was not made. Second, the Human Rights Commission applied to intervene. This underlined the broad public significance of the case.

2 Gordon v Attorney-General [2022] NZHC 2801, (2022) 13 HRNZ 773.

Justice Palmer made the following observation:³

The ability of a plaintiff to bring proceedings that are in the public interest, about serious human rights issues, with competent counsel, for no personal benefit, should not be determined by their ability to pay costs.

It is a lovely pithy quote that I would be using if I was a practitioner here. The court did underline that protective costs orders would only be made in exceptional cases. It remains to be seen how the jurisprudence develops in New Zealand. It is an exciting avenue for practitioners to explore, although I would not want to overstate the potential scope for getting these orders from the court.

My impression is that there is more scope to use judicial review in New Zealand. I hope students and lawyers in practice can think creatively about adding this tool to their toolkit in the pursuit of social justice.

3 At [19].