Rights and Accountability Take Home Exam | First-Class Problem Question

Awarded 72/100 (1:1)

By: Sophie Smyth


Introduction

Dr Kneefire and Ms Soonagain are to be advised regarding their rights as affected by the Vision Improvement Act (Northern Ireland) 2021, specifically sections 5(1) and 5(2). This document addresses the issues of standing, amenability to judicial review, potential grounds for judicial review and potential remedies which may be offered to either Dr Kneefire or Ms Soonagain.


(i) Issues of standing

The Judicature (Northern Ireland) Act 1978 s18(4) states that to possess standing to bring proceedings, the applicant must have ‘a sufficient interest in the matter to which the application relates.’ Dr Kneefire’s interest in the matter lies in the future and success of her business, thus she should be advised that she meets the criteria for standing set out in this act.


Ms Soonagain’s interest in the matter lies in her current health issues which have resulted in Ms Soonagain suffering from poor eyesight. As Ms Soonagain had a plan for treatment with Dr Tist of Pretty Green Eyes Ltd. which was subsequently cancelled, she can be said to have a sufficient interest in the matter. Hence, she should be advised that she meets the requirement for standing as set out in the act.


Both applicants should be advised that there are additional requirements for standing under the Human Rights Act 1988. Section 7 of this act considers the applicant to have standing only ‘if he is (or would be) a victim of the unlawful act.’


Dr Kneefire should be advised that she could be considered a victim in line with section 7 as the manager of The Eyes Have It Ltd. Excluding the practice from the scheme would restrict Dr Kneefire in her ability to help a larger number of clients and gain the relevant funding.

Ms Soonagain should be advised that under section 7 of the act she would be considered a victim, and thus possess the necessary requirements for standing. Ms Soonagain has been negatively impacted by section 5(2) of the Vision Improvement Act (Northern Ireland) 2021 due to the cancellation of her treatment.


(ii) Amenability to judicial review


The decision-making body in the cases of Dr Kneefire and Ms Soonagain is the Optical Improvement Council, which was created as a result of the Vision Improvement Act (Northern Ireland) 2021. Therefore, this body derives its decision-making powers directly from statute. The source of power test states that if a decision-making body’s powers are vested in it by statute, then the body is likely amenable to have its decisions subjected to judicial review.


Ms Soonagain should be advised that her case fulfils the criteria for the public interest test for amenability to judicial review. This test was first used by Kerr J, who stated that to pass the test, the issue in question must have ‘an impact on the public generally.’ Ms Soonagain’s case thus fulfils the public interest test, as section 5(2) of the Act which discriminated against her would also discriminate against any other individual requiring treatment who did not have green eyes.


Furthermore, Ms Soonagain should be advised that her case meets several grounds for judicial review, which will be discussed in further detail below. Thus, her case meets the requirements to be amenable to the judicial review process.


(iii) Potential grounds for judicial review


Dr Kneefire should be advised that she could use unfairness as a ground for judicial review into the Council’s decision not to include her clinic in the treatment scheme. As there was no consultation period or inspection of the business, Dr Kneefire wrote to the council asking for them to provide reasons for the exclusion of her clinic from the scheme. The council failed to provide such reasons. A such, it was in the interests of fairness for the council to provide reasons to Dr Kneefire, as there was no consultation period provided. Due to the fact that reasons were not provided, Dr Kneefire could claim unfairness in the process of determining which clinics were to be accepted onto the scheme as a ground for judicial review.


Additionally, Dr Kneefire should be advised that she could argue unreasonableness as a ground for judicial review. The test for unreasonableness established in Associated Provincial Picture Houses v Wednesbury Corporation [1948] (‘Wednesbury’) states that a decision is unreasonable if it is ‘so unreasonable that no reasonable authority could ever have come to it.’ The decision to shortlist and determine candidates for the laser eye treatment scheme exclusively through online reviews can be said to meet the criteria set out in the Wednesbury test. Dr Kneefire should be advised that she can argue that the Council’s decision making process should have been more detailed and through than it was. This is emphasised by the powers of consultation which the Council possessed, yet decided not to use. Hence, Dr Kneefire should be advised that she can state unreasonableness as a ground for her judicial review application.


Ms Soonagain should be advised that she could claim unreasonableness as a ground for judicial review. This uses the same test for unreasonableness established in Wednesbury as outlined abpve. When applied to section 5(2) of the Vision Impairment Act (Northern Ireland) 2021, the test shows this provision to be unreasonable. The prioritising of green-eyed patients is based on eye colour rather than any significant or urgent medical condition. By including this provision in the act, the Northern Ireland Assembly has acted unreasonably, which constitutes a ground for judicial review for Ms Soonagain.


Moreover, Ms Soonagain had a legitimate expectation of receiving treatment through the scheme. Having successfully applied, she was provided with arrangements for her treatment at Pretty Green Eyes Ltd. Ms Soonagain held a substantive legitimate expectation that she would be receiving treatment at the clinic. R v Devon Health Authority ex parte Coughlan [2002] (‘Coughlan’) established three categories for legitimate expectations. Ms Soonagain should be advised that her circumstances meet the criteria set out in this case for the third category, where the courts would consider the applicant to hold a substantive legitimate expectation, and for the authority to act contrary to this expectation would lead to an abuse of power.


Furthermore, R (Badger Trust) v Secretary of State for Environment, Food and Rural Affairs [2014] (‘Badger Trust’) established a clear definition of substantive legitimate expectations — ‘There must be a representation or promise which is clear, unambiguous and devoid of relevant qualification.’ Considering that Ms Soonagain had been provided with a clinic and Doctor in order to receive her treatment, she should be advised that she meets the above criteria for the existence of a substantive legitimate expectation and can rely on this as a ground for judicial review.


(iv) Any remedies that may be granted


Dr Kneefire should be advised that the court may choose to grant an injunction against the optical Improvement Council. This could impose a duty on the Council to hold either consultations or inspection with parties interested in participating in the treatment scheme.

Ms Soonagain should be advised that the court may grant an injunction against the Optical Improvement Council. The court may find the Council’s interpretation of section 5(2) of the act to be against the intention of the Assembly when the legislation was passed, resulting in a discriminatory approach to the provision of healthcare services.


In addition, Ms Soonagain should be advised that the court may grant a certiorari as a remedy in her case. This has the effect of quashing the decision which was made, with the result that it is taken as never having legal effect. In this case, a certiorari could be granted against section 5(2) of the Vision Improvement Act (Northern Ireland) 2021. As Ms Soonagain’s treatment was cancelled under this section, this remedy may allow Ms Soonagain’s treatment to be rescheduled for a more appropriate date.


Both Dr Kneefire and Ms Soonagain should be advised that the remedies outlined above form only part of the list of remedies available to the court. They should also be advised that the granting of remedies remains at the discretion of the court, meaning that the court may refuse a remedy on several grounds, such as a delay in submitting the application for judicial review. Furthermore, the court may decide to grant a remedy other than one listed above, and this remains for the judge to decide.


Conclusion


Dr Kneefire should be advised that she possess the standing necessary to bring judicial review proceedings against the Optical Improvement Council. She can argue unfairness and unreasonableness as her grounds for judicial review. The court may grant an injunction against the Council, however this is not a guarantee.


Ms Soonagain should similarly be advised that she meets the requirements to have standing to bring judicial review proceedings against the Council. She may argue unreasonableness and having a substantive legitimate expectation of treatment as grounds for bringing proceedings. She should be advised that the court may grant a remedy, which may be an injunction or a certiorari against the Council.