The Importance of Strategic Litigation:
the experience in Britain
Peter Reading
Director of Legal Policy
Equality and Human Rights Commission, Britain
July 2010
The Importance of Strategic litigation
• What is strategic litigation and why is it important?
• EHRC powers and approach to strategic litigation
• Examples of Strategic litigation
What is strategic litigation and why is it important?
Strategic litigation is litigation which is:
- strategic:
- part of a strategy identifying criteria and proposed areas for
involvement in litigation
- often linked to other work of the organisation: inquiries, policy
proposals, research and communications
- maximum impact: concerned with achieving broad social
change rather than merely individual justice in key areas of
discrimination and human rights;
- Effective use of resources: it seeks to make maximum use of
scarce resources
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Why strategic litigation?
- To fulfil obligations of Equality Bodies under the Directives;
- Equality Bodies have a legal obligation under the Equality
Directives (Race and Gender Directives) to promote equality.
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Competences are required to include “providing independent
assistance to victims of discrimination...”
- Opportunity to influence the interpretation of national and
EU equality law;
- Equality Bodies seen as authoritative and independent: eg
Pre-charge detention periods for terrorism offences
EHRC powers and approach to strategic litigation
• Mandate covers equality as well as human rights under the ECHR
• Are involved in proceedings in domestic courts and tribunals, the
European Court of Justice, European Court of Human Rights
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Provide advice and representation to individuals
Conciliation
Fund other organisations to provide advice and representation
Can bring judicial review proceedings in our own name
Interventions
Discriminatory advertisements proceedings
Cannot decide or make recommendations on discrimination
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Approach to strategic litigation
Developed a litigation strategy
Criteria for litigation include:
- case will clarify an important point of law
- will have a significant impact on a
particular sector
- challenges a policy or practice that has
caused significant disadvantage
- challenges multiple/ intersectional
discrimination
Approach to strategic litigation
Criteria for litigation include:
- involves balancing rights of different groups: eg groups based
on sexual orientation and religious groups
- is cost effective taking into account likelihood of success;
- would contribute substantially to other areas of work;
- will extend or strengthen protection from discrimination and
human rights;
- draws attention to a priority issue and as a result leads to
change.
Strategic Litigation
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Support every case
No priorities
No selection criteria
Win or lose
Very few partnerships
No linkage with regulatory powers
• No cases supported
• No relationships with partners
• No linkage with regulatory powers
• Clear priorities & careful selection
• Greatest impact on law and no of
people
• Fund partners for non-strategic cases
• Proactive – source cases from
partners
• Linked with regulatory powers
• Some cases but lack of strategic
focus
• Wait & see what comes in
• Partnerships undeveloped
• Insufficient consideration of
regulatory powers and options
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Approach to strategic litigation
• Representation: 48 cases (2008), 50 (2009)
• Interventions: 14 cases (2008), 18 (2009) on equality
Approximately 20 others relating to human rights (domestically
and in ECHR)
• Preliminary rulings (ECJ): 1
• Judicial Review: nil
• Discriminatory advertisements: nil
• Legal Grants: £4 million to 91 projects and organisations
Examples of strategic Litigation
Coleman v Attridge Law C-303/06
Discrimination by association
Framework Directive 2000/78/EC
Does protection from direct discrimination and harassment under
the Directive extend to situation where person claiming
discrimination is not disabled but associated with a disabled
person?
Examples of strategic Litigation
Coleman v Attridge Law C-303/06
Discrimination by association
Opinion of the Advocate General
Aim of Directive is to protect the “dignity and autonomy of the
persons belonging to those suspect classifications”
Human dignity of a disabled person can be affected where those
associated with them (eg family and friends) are discriminated
against.
Examples of strategic Litigation
Coleman v Attridge Law C-303/06
Discrimination by association
Grand Chamber
Distinction between direct discrimination and harassment (use term
“on grounds of”) and indirect discrimination which refers to
provisions that would put “persons with a particular disability” at
disadvantage.
Implications for:
- all carers of disabled persons;
- all other grounds under all Equality Directives;
- Discrimination by perception or assumption.
Examples of strategic Litigation
Saeedi v Secretary of State for the Home Department Court of
Appeal
The Charter of Fundamental Rights
Facts:
- return of an asylum seeker from UK to Greece under Dublin
Regulations.
- requirement to return asylum seeker to country of arrival in EU for
determination of claim
- Risk of being returned to Iraq and subject to torture (article 3 of the
Charter and article 3 ECHR)
Examples of strategic Litigation
Saeedi v Secretary of State for the Home Department Court of
Appeal
The Charter of Fundamental Rights
EHRC applied to intervene on issue of the effect of the Charter of
Fundamental Rights and UK Protocol.
Charter has binding force since 1 December 2009: article 6(1) TEU
Applies to all EU institutions, legislation, policies and Member States in
implementing EU legislation.
National courts need to apply the Charter to cases involving the
application of EU law (including Equality Directives)
Examples of strategic Litigation
Saeedi v Secretary of State for the Home Department Court of
Appeal
The Charter of Fundamental Rights
High Court
Cranston J
“Given the Polish and United Kingdom Protocol, the Charter cannot be
directly relied on as against the United Kingdom although it is an
indirect influence as an aid to interpretation.”
Failure to by the government to directly apply the Charter was
therefore unlawful and matter should be remitted.
Examples of strategic Litigation
Masih v Awaz FM Employment Tribunal
X v Mid Sussex CAB Court of Appeal
Discrimination against volunteers
Whether volunteers are are protected in any way by the Framework
Directive 2000/78/EC
Directive applies to “conditions for access to employment, to self
employment or to occupation” (article 3)
Impact on disabled person, women and younger people
Examples of strategic Litigation
Masih v Awaz FM Employment Tribunal
X v Mid Sussex CAB Court of Appeal
Discrimination against volunteers
Seeking references to the ECJ on both cases
Involvement of Equinet: examining the legal issues and providing
evidence that will be used:
- in the Court of Appeal proceedings (Oct 2010)
- ECJ if references made.
Equinet directly involved in ECJ strategic litigation!
‘Building a society built on fairness and
respect where people are confident in
all aspects of their diversity.’