This guide is for Non Governmental Organisations (NGOs) in Scotland who are thinking about using the legal system to bring about significant change in law, policy or practice related to equality and human rights. It gives an outline of the issues organisations should consider, as well as information about some of the legal terms and processes.
This guide is not primarily about litigation to meet one client’s needs, but about cases which can bring wholesale change to a policy, law or practice area that affects many.
Similarly, this guide provides information and advice to organisations, rather than individuals. If you as an individual have a legal problem around rights or equality, please see Resources for organisations to contact for advice.
This guide is specifically about litigation around equality and human rights.
Finally, this guide gives a general outline of the subject and does not replace professional legal advice.
Similarly, this guide provides information and advice to organisations, rather than individuals. If you as an individual have a legal problem around rights or equality, please see Resources for organisations to contact for advice.
This guide is specifically about litigation around equality and human rights.
Finally, this guide gives a general outline of the subject and does not replace professional legal advice.
If an individual is unable to access the equality or human rights that they have in law in Scotland, they can ultimately take the matter to court or tribunal to enforce these rights. Not all aspects of equality and human rights are enforceable by UK courts, but many are.
This guide uses the term ‘strategic litigation’ to describe where an organisation deliberately takes, or supports an individual to take, legal action on equality and human rights in order to bring about bigger, strategic change on a particular issue.
The issue may be strategic because it:
Strategic litigation is sometimes called taking a test case or impact litigation.
This guide uses the term ‘strategic litigation’ to describe where an organisation deliberately takes, or supports an individual to take, legal action on equality and human rights in order to bring about bigger, strategic change on a particular issue.
The issue may be strategic because it:
- affects many people,
- significantly affects a small number of people,
- has big implications for society’s understanding, or
- impacts the development of future law, policy or practice
Strategic litigation is sometimes called taking a test case or impact litigation.
Many organisations advocate for change using a whole variety of methods. For example, through using the media, meetings with policy makers, consultation responses, reports, research or events.
Litigation is another very effective tool that organisations can use to achieve their strategic campaigning objectives. Indeed, strategic litigation can be successful in bringing policy and significant changes where all other methods have failed.
Organisations can use strategic litigation where they want to:
Litigation is another very effective tool that organisations can use to achieve their strategic campaigning objectives. Indeed, strategic litigation can be successful in bringing policy and significant changes where all other methods have failed.
Organisations can use strategic litigation where they want to:
- Enforce the law
- Clarify the meaning of the law
- Challenge the law
- Draw attention and debate to a particular problem in law or its implementation
‘Using the law can lead to policy and material victories in the courts that might have been impossible to achieve in any other way.’ Dr Lisa Vanhala, UCL
The aim of this guide is to provide both a step-by-step guide to strategic litigation and also to provide specific information about certain aspects of the strategic litigation process.
It also provides information about different methods of strategic litigation and some case studies to indicate how different cases have used the methods available in the past.
Throughout this guide you will find 'Questions to Consider' in relation to each step in the strategic litigation process. These are highlighted in purple.
Links between pages on this website are highlighted in blue. External organisation links open in a new window. They are also available in the Resources section.
There are frequent references to useful contacts you may wish to approach. Where available links to facilitate making contact are in the Resources section.
It also provides information about different methods of strategic litigation and some case studies to indicate how different cases have used the methods available in the past.
Throughout this guide you will find 'Questions to Consider' in relation to each step in the strategic litigation process. These are highlighted in purple.
Links between pages on this website are highlighted in blue. External organisation links open in a new window. They are also available in the Resources section.
There are frequent references to useful contacts you may wish to approach. Where available links to facilitate making contact are in the Resources section.
Step 1: Initial questions to consider
Sometimes strategic litigation can be a very effective way to achieve social change. However, it can also be resource-intensive and sometimes other routes can be better.
So how do you know if you should pursue strategic litigation?
Here are some questions to discuss within your organisation to help to guide your decision-making:
So how do you know if you should pursue strategic litigation?
Here are some questions to discuss within your organisation to help to guide your decision-making:
- Strategic - Is this a legal issue that has implications for many people and/or is strategic in some way?
- Legal outcome - Would a court or tribunal decision help to address this problem?
- Other means - Are there other effective and less resource-intensive ways to achieve your strategic goal? Do you have other realistic ways of influencing that would be very likely to bring about the change you are after in an acceptable timescale?
- Engaging - Is the key issue in the case easy for the media and the general public to understand?
Step 2: Put it in writing
Put down in writing exactly what the issue is, and to your knowledge, what law or policy applies to the issue.
Draw together any evidence you have on how this issue impacts many people or is strategic in some way.
Be clear about what you know but also about what you do not know.
This initial clarity will then help you with the next stages of strategic planning.
Draw together any evidence you have on how this issue impacts many people or is strategic in some way.
Be clear about what you know but also about what you do not know.
This initial clarity will then help you with the next stages of strategic planning.
Step 3: Get advice, get advice, get advice!
It is important to get legal advice from very early on in your decision-making around strategic litigation.
You could do so via a strategic litigation network, through a private solicitor, a law clinic or centre, or with an advocate through advice agency referral to the Faculty of Advocates Free Legal Services Unit – see Resources for more details.
You can arrange a meeting and discuss with them the details of your strategic issue and the pros and cons of pursuing litigation. When seeking legal advice, it is helpful to provide in advance to the solicitor or advocate information about:
The initial advice you receive could simply be oral advice in your meeting, following by a brief confirmatory letter.
If the solicitor or advocate believes there to be good prospects in pursuing strategic litigation, and is willing to provide further advice, you should clarify what services she will offer your organisation and whether there is any charge for the advice.
You might consider, for example, asking for a written legal opinion to help bring clarity to your issue and to prepare for litigation.
You can also discuss the strategic issue with the Equality and Human Rights Commission (EHRC).
You could do so via a strategic litigation network, through a private solicitor, a law clinic or centre, or with an advocate through advice agency referral to the Faculty of Advocates Free Legal Services Unit – see Resources for more details.
You can arrange a meeting and discuss with them the details of your strategic issue and the pros and cons of pursuing litigation. When seeking legal advice, it is helpful to provide in advance to the solicitor or advocate information about:
- your organisation
- the strategic issue you wish to pursue
- the factors that might affect your ability to approve, or fund, the pursuit of strategic litigation.
The initial advice you receive could simply be oral advice in your meeting, following by a brief confirmatory letter.
If the solicitor or advocate believes there to be good prospects in pursuing strategic litigation, and is willing to provide further advice, you should clarify what services she will offer your organisation and whether there is any charge for the advice.
You might consider, for example, asking for a written legal opinion to help bring clarity to your issue and to prepare for litigation.
You can also discuss the strategic issue with the Equality and Human Rights Commission (EHRC).
The main ways that an organisation can be directly involved in using litigation to get strategic change are:
- Support individuals who are taking tribunal proceedings, judicial review, a case to the European Court of Human Rights or other civil law cases that raise strategic issues, and communicate these widely to get strategic change;
- Take a judicial review themselves if they are recognised by the court;
- Use their expertise and knowledge for a Public Interest Intervention in an ongoing case.
There are other ways too of using the law to get change that do not involve litigation in court.
For example:
For example:
- Consider getting a legal opinion on a particular issue.
- Consider how to support an individual or a group to make an official complaint about poor service.
To determine the best method of strategic litigation, you could consider:
- Individual with case - Do you know of individual(s) who would be willing and for whom it would be appropriate to pursue legal proceedings on strategic issues, with support? Would your organisation or partner organisations come into contact with those who may have a potential case that raises the strategic issue? See here for discussion on issues to consider around ‘finding a case’.
- Partners - Could you bring together organisations working in the strategic area to identify which organisation is best placed to take forward the litigation and how you could work together? Do you have specific expertise on this issue, or would it be better for another organisation to intervene or pursue legal action?
- Supporting individuals - What experience do you have of supporting individuals involved in legal action, or do you have good contacts with other organisations who can advise you on how best to support an individual?
- Individual or organisational case - Are there particular reasons why it would be difficult for an individual to take a case on this issue, and therefore would be better to consider litigation in an organisation’s name?
- Ongoing cases - Do you know of an ongoing case which raises the strategic issue, in which you could intervene to add value to the court’s deliberations?
- Legal contacts -Are you connected in with legal networks or have good contacts with legal professionals to be informed of relevant cases arising? Or if not, what steps could you take to improve these connections?
Step 5: Work with others
Experience and research shows that strategic litigation is most effective when pursued collaboratively.
The strategic impact is greater with the support and input of various partners, and when it is communicated well to stakeholders.
Partner civil society organisations can bring:
You can find useful contacts to consider approaching in the Resources section.
The strategic impact is greater with the support and input of various partners, and when it is communicated well to stakeholders.
Partner civil society organisations can bring:
- Knowledge of, and contact with, individuals who could bring a judicial review petition on the strategic issue
- Additional knowledge or expertise on the strategic issue to enhance initial consideration
- A Public Interest Intervention in the case to strengthen the court’s consideration
- Help with communicating the case outcome through their social media, events and networks
- Resource, whether finance or particular support that they can offer the individual petitioner
- Share the risk – as discussed below, strategic litigation can bring reputational risk for an organisation but working in partnership lessens the risk to any one organisation. It is beneficial to build good contacts with legal networks or professionals who can help to highlight potential cases and help you to consider your organisation’s strategic approach to litigation.
You can find useful contacts to consider approaching in the Resources section.
Step 6: Planning for strategic litigation
Strategic litigation can be very effective for bringing significant change but should not be entered into lightly.
Here are some questions to consider to help with planning around strategic litigation:
Be strategic – From the outset you need to be clear about what you want to achieve from the strategic litigation, being realistic about what is likely or less likely, and about the potential outcomes if you win or lose a case. In particular plan for what you will do if you do not ‘win’ the case– is there a way to still bring some positive change as a result? Will a loss make the position worse?
Here are some questions to consider to help with planning around strategic litigation:
Be strategic – From the outset you need to be clear about what you want to achieve from the strategic litigation, being realistic about what is likely or less likely, and about the potential outcomes if you win or lose a case. In particular plan for what you will do if you do not ‘win’ the case– is there a way to still bring some positive change as a result? Will a loss make the position worse?
- Be clear about charitable purpose – Charities are only allowed to take part in activities that achieve their charitable purpose, as listed within OSCR. Can you show the direct relationship between the strategic litigation and your charitable purpose?
- Organisational ownership – It is important that the strategic litigation is owned and understood by those within your organisation. Charity trustees need to be fully informed and engaged in the litigation strategy from early on in the process, particularly because of the resource commitment and reputational risk.
- Part of ongoing advocacy and influencing – Strategic litigation should be one part of ongoing influencing for change. Indeed, a petition for judicial review may be welcomed more where the organisation can show that it has used all other opportunities to raise the issue with policy makers.
- Timescale – Strategic litigation can be a very long process, sometimes going on for many months. Your organisation needs to plan for the long-haul in terms of capacity, resource, working with others and communications.
- Reputational and financial risk – Depending on the outcome and details of the case, strategic litigation can open an organisation to considerable risk to their reputation and significant financial risk (see here for more detail on resourcing litigation). Your organisation needs to think carefully about minimising these risks and how you will deal with them. Think particularly about how you can work with others.
Step 7: Resourcing strategic litigation
Strategic litigation can be very costly in terms of finance and staffing. There are costs from retaining a solicitor or advocate as well as potential costs arising from the case itself. For this reason alone, you need to plan very carefully for the impact of the potential cost on your organisation.
You could consider:
You could consider:
- Explore pro bono options - It is often possible to get pro bono legal advice on strategic issues, particularly for the initial legal opinion. See useful contacts in the Resources section.
- Be clear about cost – from the outset, ask your solicitor for clear written information about their costs and court costs at each stage of the process, including what the total cost will be.
- Work with others – is it possible to share the costs with another organisation(s)? By communicating about the strategic issue early on, and collaborating with others, it may be possible to establish a shared budget and staffing for the litigation.
- Protective Expenses Order – In litigation, it is normally expected that ‘expenses follow success’ and that means that the losing party normally pays the legal expenses of the winning party. However if an organisation is pursuing a ‘public interest’ in entering into litigation, for example, in taking judicial review action, it is possible to seek a ‘Protective Expenses Order’(PEO) (known as a ‘protective costs order’ elsewhere in the UK). An application to the court must be made for a PEO and this can limit liability for costs to a certain amount (known as ‘cost capping’) or state that a party will not be liable for the expenses of the opponent regardless of the outcome.You should obtain legal advice from your solicitor about the risk of being liable for expenses if unsuccessful in your case. Even if you obtain a PEO with a ‘cost cap’ this can still be a significant risk for a small charity. Consider whether a coalition of charities – or separate fundraising – might be able to pool together to set aside the funds necessary to meet expenses within the cost cap if the case is unsuccessful.
- Legal Aid – it is possible for individuals (but not organisations) seeking judicial review of a decision, to obtain legal aid for legal advice and representation in the Court of Session from the Scottish Legal Aid Board (SLAB). Access to Civil Legal Aid is subject to satisfying two tests: financial eligibility and ‘reasonableness in the circumstances’. Reasonableness involves an assessment of the interest of the individual in bringing the case, the prospects of success, and an assessment of the likely costs and benefits. Benefits includes a consideration as to whether or not the case raises a particularly important matter of law or status. If an individual is granted Civil Legal Aid, she will not be liable for all or part of the costs or legal representation, and usually not for any expenses if she is unsuccessful in the case. Sometimes, an individuals’ financial circumstances are such that she requires to make a financial contribution towards the cost of representation, but her liability will be limited to the amount of that contribution.
- Have you spoken with the EHRC? As a UK-wide organisation with a statutory role in enforcing equality and human rights law, they may be able to pursue judicial review, intervene, provide advice or fund the case.
- Public funding – could you explore using crowd sourcing, or approaching individual donors to fund the litigation? If they are ‘sold’ on the need for the strategic change, maybe they will help to fund it?
Step 8: Communications
An essential element of any plan to achieve change through strategic litigation is communications.
Organisations need to communicate well at every stage of the process.
It is important that the strategic issues that the case raises, as well as the outcome of the case, are communicated effectively.
This brings the change out of the courts and into reality.
Therefore, you may want to consider:
Organisations need to communicate well at every stage of the process.
It is important that the strategic issues that the case raises, as well as the outcome of the case, are communicated effectively.
This brings the change out of the courts and into reality.
Therefore, you may want to consider:
- Who are your potential key partners? What are the best ways to inform and discuss the strategic issue with partners?Communicating the purpose and importance of the litigation to potential partners very early on in the process can create collaboration.
- Sometimes there are legal or strategic consequences in the litigation to communicating publicly about cases whilst they are ongoing. Consult your solicitor/advocate before any communications around any ongoing case.
- The individual’s story can be important for creating media attention and public engagement with the issue. However individuals may not wish to be directly involved with media. Discuss with the individual from an early stage whether they are prepared and willing to handle publicity, with support. Be clear about the support that you can provide with this. Clarify if they wish to remain anonymous or are they willing to talk directly to media or to provide a statement. Make sure that you keep the individual involved in the case informed about media and communications throughout the case.
- Broad collaboration - Are there any organisations that may have a concern about the strategic issue from a different angle? For example, mental health organisations may also have a concern about strategic change on homelessness; carers organisations have a concern about issues affecting disabled people’s rights.
- Hone messages about the case to 2 or 3 sentences. Be clear about why you are taking the case and the strategic change that is needed.