How the term arises in court

There are five main ways in which the term can arise in court.

The first is where legislation uses the term “public interest” within its provisions, for instance by requiring a named decision-maker to take decisions in the light of “the public interest”. There are many pieces of legislation that could be used to illustrate the point, but the best example is perhaps the Freedom of Information Act 2000. Under this Act, requests for certain types of information are subject to a “public interest” test; that is, the public authority that holds the information must decide whether or not the “public interest” favours disclosure of the information to an individual who is requesting it. In the event that the authority concludes that the information should not be disclosed, the individual can challenge that decision through the office of the Information Commissioner and, thereafter, through the Information Tribunal and the High Court. In that instance the High Court may have to determine whether, as a matter of law, the “public interest” requires disclosure: see, e.g., Anderson v Information Commissioner [2011] NIQB 44.

A second way is where legal proceedings are brought in the “public interest”. In historical terms, this is something that was associated almost exclusively with the role of the Attorney-General, who is the guardian of the public interest in matters of law and who can initiate proceedings on that basis. However, while the Attorney General continues to perform that role, “public interest” proceedings can also be brought by pressure groups who wish to raise points of law related to, for instance, the environment. Such proceedings are fairly commonplace in judicial review and they have been made possible by judges adopting a liberal approach to some rules of procedure. The relevant rules and corresponding case law are annotated at Standing.

A third way is where judges invoke the term themselves when justifying particular developments in the law. This, again, is something that has been to the fore of judicial review case law, where judges have noted “the public interest” when broadening the reach of public law ensure that certain decision-makers do not escape the control of the courts. See The Reach of Judicial Review.

A fourth way is where a public authority that is a party to a dispute makes reference to the “public interest” when preparing for the case and/or when the case is being heard. For instance, at the pre-trial stage the public authority may claim that certain information should not be disclosed to the other party because it attracts “public interest immunity” (PII). Such arguments raise difficult questions for the courts as the common law emphasises the need for open justice and PII claims have the clear potential to undermine such justice (see Public Interest Immunity). And once a case is being argued, the public authority may draw upon “the public interest” when explaining why it acted in a particular way. This can happen where the authority says that it took a particular decision in “the public interest”, and it can also happen where the authority argues that it would not be in “the public interest” to find that it has acted unlawfully or that it should be required to pay damages for its actions. These are arguments that the courts often – though not always – accept.  

The fifth way is when arguments are made with reference to European Union (EU) law and/or the law of the European Convention on Human Rights (ECHR). Under both EU law and the ECHR States are required to observe, among other things, the rights that European law gives to individuals (these range from economic rights to fundamental human rights). However, the requirement is not necessarily absolute and it is permissible, in some circumstances, for States to place limitations on an individual’s rights where there is a “public interest” justification for doing so. Such justifications include national security, public health, and the prevention of crime (see further information on The European Convention on Human Rights).

One last point to be made under this heading is the overlap between “the public interest” and other terms that may be used in the courts. This is true not only of European law’s use of the language of national security and so on, but also of terms such as “public policy” or the “interests of the community”. Terms such as these are often found in the case law and they correspond, in many instances, with arguments that the public interest would not be best served if a public authority was required to, for instance, pay damages for its actions or inactions. This is a line of reasoning that is particularly pronounced in case law on the negligence liability of public authorities such as the police. See, most famously, Hill v Chief Constable of West Yorkshire [1987] UKHL 12.

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