insearchof
Senior Member
- Messages
- 598
Hi IVI
You have gone to some trouble here - citing case law, for the purposes of discussion, so I think it warrants taking the time to make a reply.
I would like to hear more about why you believe it would be 'profoundly misguided''.
As for a group focused action v an individual who runs a test case for the benefit of a class or group - I think is splitting hairs.
However, I would say that class actions are far more powerful than individual actions for the sheer reasons of numbers, the attention the actions generate (and the resultant political pressure) and irrespective of any other remedies sought, the very significant damages claims that are generally sought and needed to compensate a large group. Collectively they cause such embarassment to the government and such political pressure - that they generally follow through with meaningful changes.
Matters taken before tribunals can have limited application and tribunals have limited powers. A waste of time, if you want to make an impact against and encourage governments to undertake reforms.
Rogers case was an application for judical review (administrative law) of a decision maker of a public authority. As a part of that action taken in administrative law, the Human Rights Act 1998 UK was pleaded. Thats not uncommon and you could plead breaches of any relevant statute, it just so happened to be that one on this occasion that was selected as having the most relevance. However the main action was not brought under that act - but administrative law (a branch of common law). In point of fact, at the end of the day breaches of the Human Rights Act were not even addressed by the Appellate Court:
However the application brought in administrative law (ie seeking judicial review) succeeded.
Again, Administrative law can produces narrow results. Not always an ideal choice, but it depends on the change you are trying to bring into effect and all changes that succeed against governments, are good changes IMO.
The changes made will be in accordance with the incentive to do so.
As stated previously, administrative law does not give a lot of wriggle room. So you challenge the decision of a decision maker under that area of law and the court says - ''ou made the wrong decision - go back and make the right one'' or in that case - ''your policy was irrational change it''.
So thats fairly narrow, but I would not say that there was very little practical change.
The decision resulted in a review and change of the Swindon NHS Primary Care Trusts policy. It made them spell out precisely who will fall into the ''exceptional circumstances'' category and therefore be eligible for funding for the drug in question. That will assist oncologists and patients in knowing whether to make an applications for access to that drug on those grounds and their chances of succeeding. With greater clarity on the part of both parties, there should be no delay in issuing the drug, which is important for cancer patients.
Moreover, I am sure that they may not be so cavalier or sloppy in their decision making processes having been through a case at first instance and an appeal -when it comes to assessing future applicants. The ordeal of litigation for some of these organisations can result in massive shifts in their handling of matters. So whilst it may appear to have resulted in little practical change, I can tell you that this appearance will be quite deceptive.
However, individual based actions do not nearly have the same impact on an organisation or government, in the way that a class action law suite might.
Of course it is the prerogative of governments to do this.
Governments make the laws and courts interpret and apply them. However, as stated previously, it does not happen often and this is a good case in point, as it has taken the UK government 17 years to get up the gumption to try. I also note that is all they are doing. It will be a long and arduous path for them, to succeed in doing so.
Governments who try to take away and or diminish our common law rights, always meet with strong opposition. The move is never popular and most governments that try and or succeed, end up on the opposition benches at the next election, with the new governments usually getting in on a promise to restore such rights. I have seen it happen quite a few times here in Australia.
You maintain that legal action directed at government will not be effective and would be profoundly misguided, but you are yet to explain why or put up anything I personally have found convincing in support of these claims. I would be interested to hear your views, but I am also mindful that this is taking this thread OT.
You have gone to some trouble here - citing case law, for the purposes of discussion, so I think it warrants taking the time to make a reply.
I would like to hear more about why you believe it would be 'profoundly misguided''.
As for a group focused action v an individual who runs a test case for the benefit of a class or group - I think is splitting hairs.
However, I would say that class actions are far more powerful than individual actions for the sheer reasons of numbers, the attention the actions generate (and the resultant political pressure) and irrespective of any other remedies sought, the very significant damages claims that are generally sought and needed to compensate a large group. Collectively they cause such embarassment to the government and such political pressure - that they generally follow through with meaningful changes.
Matters taken before tribunals can have limited application and tribunals have limited powers. A waste of time, if you want to make an impact against and encourage governments to undertake reforms.
Rogers case was an application for judical review (administrative law) of a decision maker of a public authority. As a part of that action taken in administrative law, the Human Rights Act 1998 UK was pleaded. Thats not uncommon and you could plead breaches of any relevant statute, it just so happened to be that one on this occasion that was selected as having the most relevance. However the main action was not brought under that act - but administrative law (a branch of common law). In point of fact, at the end of the day breaches of the Human Rights Act were not even addressed by the Appellate Court:
However the application brought in administrative law (ie seeking judicial review) succeeded.
Again, Administrative law can produces narrow results. Not always an ideal choice, but it depends on the change you are trying to bring into effect and all changes that succeed against governments, are good changes IMO.
The changes made will be in accordance with the incentive to do so.
As stated previously, administrative law does not give a lot of wriggle room. So you challenge the decision of a decision maker under that area of law and the court says - ''ou made the wrong decision - go back and make the right one'' or in that case - ''your policy was irrational change it''.
So thats fairly narrow, but I would not say that there was very little practical change.
The decision resulted in a review and change of the Swindon NHS Primary Care Trusts policy. It made them spell out precisely who will fall into the ''exceptional circumstances'' category and therefore be eligible for funding for the drug in question. That will assist oncologists and patients in knowing whether to make an applications for access to that drug on those grounds and their chances of succeeding. With greater clarity on the part of both parties, there should be no delay in issuing the drug, which is important for cancer patients.
Moreover, I am sure that they may not be so cavalier or sloppy in their decision making processes having been through a case at first instance and an appeal -when it comes to assessing future applicants. The ordeal of litigation for some of these organisations can result in massive shifts in their handling of matters. So whilst it may appear to have resulted in little practical change, I can tell you that this appearance will be quite deceptive.
However, individual based actions do not nearly have the same impact on an organisation or government, in the way that a class action law suite might.
Of course it is the prerogative of governments to do this.
Governments make the laws and courts interpret and apply them. However, as stated previously, it does not happen often and this is a good case in point, as it has taken the UK government 17 years to get up the gumption to try. I also note that is all they are doing. It will be a long and arduous path for them, to succeed in doing so.
Governments who try to take away and or diminish our common law rights, always meet with strong opposition. The move is never popular and most governments that try and or succeed, end up on the opposition benches at the next election, with the new governments usually getting in on a promise to restore such rights. I have seen it happen quite a few times here in Australia.
You maintain that legal action directed at government will not be effective and would be profoundly misguided, but you are yet to explain why or put up anything I personally have found convincing in support of these claims. I would be interested to hear your views, but I am also mindful that this is taking this thread OT.
