Category: Human Rights

Damages and the Competence of the Administrative Court

The award of damages is not a remedy traditionally available in judicial review. In public law proceedings, the purpose of a claim is to identify unlawfulness and bring it to an end, not to compensate those who have been affected by it.

In recent years, however, the non-financial purity of judicial review has been eroded by a number of developments. In particular, monetary compensation is now available in some cases where the source of the wrong was non-compliance with either EU law (Francovich damages) or the European Convention on Human Rights (under section 8 of the Human Rights Act 1998).

But does the Administrative Court, without any real track record in this area, have the competence to carry out an assessment of damages in a complex case?

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Return of the Cuts, Lessons from the Cuts Cases

Successive waves of public sector spending cuts imposed by UK central government since 2010 have generated a series of judicial reviews – the ‘cuts cases’. Many of these are challenges to the difficult choices that local authorities have had to make in reducing the provision of public services to stay within their shrinking budgets.

The cases are interesting not because they present a coherent narrative – they do not, although they certainly exhibit persistent themes – but because they test the boundaries of territory into which the courts have traditionally been reluctant to tread; namely whether to quash, on public law grounds, decisions which are driven by the need to allocate scarce resources between competing demands. As such, they tell us something about the considerable capabilities, but also the ongoing limits, of modern judicial review.

On 25 November 2015, the Chancellor of the Exchequer, George Osborne, revealed the next wave of public sector ‘austerity’ at more or less the same time as a number of earlier cuts cases were receiving judgment. Both offer us some useful pointers to the future.

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A v Secretary of State for Health – The NHS, Devolution and Human Rights

Each year, at least 1000 young women, but perhaps as many as twice that number, travel from Northern Ireland to another part of the United Kingdom in search of an abortion. They do so to avoid the criminal liability that (in most cases) still attaches to terminations of pregnancy in Northern Ireland, and to rely instead on the more liberal legal regime prevailing in England, Scotland and Wales.

Should they be entitled to obtain abortions free on the National Health Service?

The answer to this question, which was considered by the Court of Appeal in A (a child) v Secretary of State for Health, reveals the full extent to which, under the UK’s devolution settlement, the disaggregation of the NHS into four discrete health services – one for each of the four constituent territories* of the United Kingdom – is now legally entrenched. By implication, it also asks important questions about the effect of future devolution within England.

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