Introduction
Public interest litigation (PIL) is a form of legal action initiated to protect or advance the interests of the public, or a significant section of the public, rather than the specific interests of the individual claimant. In the context of human rights in England and Wales, it has become an important mechanism for challenging the actions of public bodies and seeking to ensure that fundamental rights are upheld. This essay will explore the importance of PIL in human rights issues by examining its role in providing access to justice, holding the executive to account, and developing the law. It will then proceed to assess the effectiveness of PIL, considering some notable successes alongside the significant legal and practical barriers that can limit its impact. The essay will argue that while PIL is a crucial tool for human rights protection, its effectiveness is often constrained by procedural hurdles, financial limitations, and a degree of judicial caution.
The Importance of Public Interest Litigation
The primary importance of public interest litigation lies in its ability to provide a route to justice for marginalised or vulnerable groups who may otherwise lack the resources or standing to challenge unlawful state action. Many human rights issues affect entire communities or groups, such as asylum seekers, prisoners, or recipients of welfare benefits. Individual members of these groups may not have the financial means or legal knowledge to bring a claim. PIL, often spearheaded by non-governmental organisations (NGOs) and charities, allows these collective grievances to be aired in court. This function is vital for ensuring that the rights guaranteed by instruments like the Human Rights Act 1998 are a practical reality for all, not just for those who can afford to litigate (Public Law Project, 2018).
Secondly, PIL is a critical component of the rule of law, serving as a check on the power of the executive and other public bodies. Through the mechanism of judicial review, litigation can be brought to ensure that government departments act within their legal powers (intra vires) and in a manner compatible with human rights obligations. This is particularly important where government policy may have a disproportionate impact on a minority group. A prominent example is the case of A v Secretary of State for the Home Department [2004] UKHL 56, often known as the Belmarsh case. Here, a challenge was brought against the government's policy of indefinitely detaining foreign terror suspects without trial. The House of Lords held that this policy was discriminatory and a disproportionate interference with the right to liberty under Article 5 of the European Convention on Human Rights (ECHR). This case demonstrates the power of PIL to force the government to justify its actions and to strike down measures that are incompatible with fundamental rights, even in the sensitive area of national security.
Finally, public interest litigation plays an important role in clarifying and developing the law. ‘Test cases’ can establish legal precedent, providing guidance for future conduct by public authorities and clarifying the scope of human rights protections. For instance, litigation can explore the meaning of rights under the ECHR in new contexts, such as those involving modern technology or complex social policies. Furthermore, even unsuccessful cases can be important. They can raise public awareness of a particular issue, placing it on the political agenda and potentially leading to legislative change outside the courtroom. This ‘expressive’ or ‘declaratory’ function of litigation can be as significant as a legal victory, contributing to a broader culture of respect for human rights (Scott, 2011).
The Effectiveness of Public Interest Litigation
Despite its importance, the effectiveness of PIL is a matter of considerable debate. There have been clear and high-profile successes where litigation has led to significant changes in government policy or law. A powerful example is R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51. In this case, the trade union UNISON challenged the legality of employment tribunal fees introduced by the government. The Supreme Court found the fees to be unlawful because they effectively prevented access to justice for many people, particularly those on low incomes. The government was forced to abolish the fees and refund those who had paid them. This was a clear victory for PIL, demonstrating its capacity to reverse a major government policy that had created a barrier to justice. Similarly, the Miller cases (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 and R (Miller) v The Prime Minister [2019] UKSC 41) showed the courts, prompted by individual litigants acting in the public interest, willing to intervene to uphold fundamental constitutional principles against executive overreach.
However, there are substantial obstacles that limit the effectiveness of PIL. One of the most significant is the issue of standing (locus standi). To bring a claim for judicial review, a claimant must demonstrate a ‘sufficient interest’ in the matter to which the application relates, as required by section 31(3) of the Senior Courts Act 1981. While the courts have often adopted a liberal approach, allowing groups like Greenpeace to bring claims on behalf of the public interest (R v Inspectorate of Pollution, ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329), the requirement can still be a barrier. A court may decide that a particular organisation or individual does not have the necessary connection to the issue, preventing the case from being heard on its merits.
A more severe practical limitation is funding. Public interest litigation is expensive, and deep cuts to legal aid made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) have drastically reduced the availability of public funding for such cases. Charities and NGOs that take on these cases often rely on donations, pro bono work from lawyers, and protective costs orders (PCOs) to shield them from the risk of having to pay the government's legal fees if they lose. The financial precarity of this model means that many meritorious cases may never be brought, and even when they are, the organisations involved face a significant financial burden (JUSTICE, 2016).
Furthermore, a legal victory does not always guarantee a meaningful change in practice. Courts are often reluctant to overstep their constitutional role and dictate policy to the government. This principle of judicial deference means that even where a public body is found to have acted unlawfully, the court may grant a remedy that gives the body considerable discretion in how to rectify the situation. A declaration of incompatibility under section 4 of the Human Rights Act 1998, for example, does not invalidate legislation but simply leaves it to Parliament to decide whether to amend it. Moreover, a government may respond to an adverse court ruling with new legislation designed to circumvent the judgment. This illustrates that litigation is often just one part of a longer political and social campaign for change, and its success is not guaranteed. The challenge to the so-called ‘bedroom tax’ was ultimately unsuccessful in the Supreme Court on its main discrimination grounds (R (on the application of Rutherford and others) v Secretary of State for Work and Pensions [2016] UKSC 58), showing that even well-organised campaigns can fail to persuade the highest court.
Conclusion
In conclusion, public interest litigation is of fundamental importance to the protection of human rights in England and Wales. It provides a voice for the vulnerable, acts as a crucial check on the power of the state, and contributes to the development and clarification of the law. However, its effectiveness is far from absolute. While there have been landmark victories that have protected fundamental rights and upheld the rule of law, these must be set against the significant and growing obstacles that stand in the way of such litigation. The restrictive rules on standing, the severe funding challenges following cuts to legal aid, and the constitutional limits of the judicial role all combine to constrain the potential of PIL. Therefore, it can be seen as a vital but imperfect tool. It remains an essential avenue for challenging injustice, but it is not a panacea, and its successes often depend on a fortunate combination of legal, financial, and political circumstances.
References
A v Secretary of State for the Home Department [2004] UKHL 56.
JUSTICE. (2016) Supporting an effective justice system: The role of NGOs in public interest litigation. JUSTICE.
R (Miller) v The Prime Minister [2019] UKSC 41.
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
R (on the application of Rutherford and others) v Secretary of State for Work and Pensions [2016] UKSC 58.
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51.
R v Inspectorate of Pollution, ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329.
Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Public Law Project. (2018) The impact of the legal aid cuts. PLP.
Scott, M. (2011) ‘The Role of Public Interest Litigation in the Promotion and Protection of Human Rights’, Journal of Human Rights Practice, 3(1), pp. 88-109.
Senior Courts Act 1981.
Human Rights Act 1998.
