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An Introduction to Strategic Litigation

An Introduction to Strategic Litigation

Public law is the law that governs how public bodies act. Of all the topics a law student will have to study, no other creates more headlines or generates more news stories. Over the last few months, as an example:
·  The proposed reforms to ‘stop and search’ powers, on the back of low arrest rates and the disproportionate number of ethnic minorities that get stopped
·  It was revealed that Metropolitan Police, with the backing of Boris Johnson, had applied for permission to acquire and use a water cannon,
· A story that, while less publicised, has a potentially wide-reaching impact. Shropshire County Council are being taken to the Court of Appeal to have their decision to shut day centres in Shrewsbury for adults with learning disabilities challenged.

With the fame (or notoriety) of the stories that are related to public law issues comes a unique opportunity for campaigners and lawyers to raise greater awareness and generate huge publicity for their chosen cause. This is a key factor in the decision to adopt strategic litigation to advance one’s case. What follows is a very short introduction to the concept of strategic litigation within a public law context.

Put simply, strategic litigation is ‘a method that can bring about significant changes in the law, practice or public awareness via taking carefully-selected cases to court’ (Mental Disability Advocacy Centre). In many cases, the clients involved in strategic litigation have been victims of a wrong of some sort that may have been suffered by many other people. The key principle is therefore using the law to bring attention and focus on an individual case in order to bring about social change.

Strategic litigation is sometimes referred to as ‘public interest litigation’ or ‘test case litigation’. There is often some overlap with social action, as strategic litigation can be a powerful method of achieving the wider aims of a particular cause. Individuals and groups might consider using strategic litigation where they want to enforce or challenge the law, create new law, or clarify the meaning of the law. At the first instance obtaining legal advice is the first action that needs to be taken, sometimes with the help or intervention of a relevant third party, such as a charity or ‘legal NGO’ connected to the issue.

 

Methods

Given the cost and inherent risk of litigation via judicial review, campaigners will often consider other types of public law challenge in order to enhance their cause. For example, most public bodies will have complaints procedures, and organised large-scale letter writing campaigns can be an inexpensive and fruitful method of moving communities into action. Another alternative to pursuing a challenge without the use of the court process is via an ombudsman. Ombudsmen have statutory powers to investigate maladministration which causes the complainant injustice, with a wider objective of raising standards in addition to resolving or settling individual grievances. Ombudsman schemes are simple and cheap and can be particularly useful for systemic problems within public bodies, such as delays; however ombudsmen themselves can be slow to come to a conclusive outcome.

When public bodies make decisions that affect individuals, there is sometimes a right to review or appeal the decision. This will usually take place in an administrative tribunal, referred to as the First-Tier Tribunal. Decisions on these appeals can lead to changes in law and practice. However the time that such decisions can take is often lengthy, and any significant changes in the law will need to occur in more senior courts.

Judicial review is sometimes viewed as the last resort when it comes to strategic litigation, given the inherent risk of a day in court on the outcome of a case as well as the expense and the difficulty of getting the case through the various stages required. It is also usually only embarked upon when all other avenues of appeal and review have been exhausted. A party must have sufficient standing and must be challenging a decision made by a public body on the grounds of illegality, irrationality and/or procedural impropriety; a court will not substitute its own decision in place of the original one, and will only examine the way in which the decision was reached rather than the merits of it. Judicial review proceedings must also commence as soon as possible, as often a claimant will not have longer than three months since the decision to bring a challenge.

The main advantage of bringing a judicial review claim is the range and strength of remedies available, some of which are not available via other methods of appeal.

 

Risks and benefits

When run well and successfully, strategic litigation can be a powerful and effective way of changing the law by setting a legal precedent. It can also be a useful way of creating awareness of a particular issue, which is often a positive outcome even if the case is lost in court.

However litigation can be expensive, and if the claimants lose they may find themselves paying some or all of the other side’s costs as well as their own. There is also a danger of creating ‘bad law’ if the case is lost, as well as the risk of unwanted media coverage and damaging publicity.

 

Two examples of strategic litigation

The case of Diane Pretty was given massive media coverage, generated in part by the campaign by the charity Liberty. Mrs Pretty suffered from motor neurone syndrome, and made an application to the Attorney General for an assurance that her husband would not be prosecuted if he helped her to take her own life. Her application was permitted as admissible by the Attorney General as it raised points under the Human Rights Act, but Mrs Pretty’s arguments were ultimately rejected and dismissed, as they were by the House of Lords and finally the European Court of Human Rights in 2002. Despite not succeeding, the use of strategic litigation sparked an important debate on a murky and complicated area of law, and is often cited in arguments in the subsequent cases on assisted suicide and ‘right to die’ that have followed.

In 2007, the Public Law Project brought a judicial review on behalf of three local residents to challenge the Harrow Council’s policy of restricting adult community care services to people with critical needs only, therefore withdrawing services from people with substantial needs. The judicial review was supported by a number of local groups, including Mencap, Harrow Rethink Support, Mind, Harrow Association of Disabled People and Age Concern, all of whom were concerned that the Council’s policy would leave hundreds of vulnerable people without essential care. The judge found that the policy was unlawful because Harrow Council had failed to fulfil its duties under the Disability Discrimination Act 1995 (since replaced by the Equality Act 2010).

These two examples are examples of where using strategic litigation can bring about change that affects communities and individuals.

 

References and further reading

The Public Law Project
Advocates for International Development
Interights
‘Experience in England and Wales: Test case strategies, public interest litigation, the Human Rights Act and legal NGOs’, Roger Smith (http://www.essex.ac.uk/armedcon/story_id/000696.pdf)
mdac.info/en/what-we-do/strategic_litigation

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