Step six: 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:
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 positive change as a result? Will a loss make the position worse? Or for example, will this still help to raise awareness of the issue?
- Be clear about charitable purpose – Charities are only allowed to take part in activities that achieve their charitable purpose, as listed by the Office of the Scottish Charity Regulator (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 risk to their reputation and significant financial risk (you can find more discussion on resourcing strategic litigation here). Your organisation needs to think carefully about minimising these risks and how you will deal with them. Think about the risk if you do get involved in litigation but also the risk if you do not. Think particularly about how you can work with others.