The Importance of Strategic Litigation: the experience in Britain Peter Reading Director of Legal Policy Equality and Human Rights Commission, Britain

The Importance of Strategic Litigation:the experience in Britain

Peter ReadingDirector of Legal PolicyEquality and Human Rights Commission, BritainJuly 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.

- 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

• 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


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.

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Strategic LitigationSupport every caseNo prioritiesNo selection criteriaWin or loseVery few partnershipsNo 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

• No cases supported• No relationships with partners• No linkage with regulatory

powers

• Some cases but lack of strategic focus

• Wait & see what comes in• Partnerships undeveloped• Insufficient consideration of

regulatory powers and options


• Representation: 48 cases (2008), 50 (2009)

• Interventions: 14 cases (2008), 18 (2009) on equalityApproximately 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?



Discrimination by associationOpinion 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.



Discrimination by associationGrand ChamberDistinction 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.


Saeedi v Secretary of State for the Home Department Court of Appeal

The Charter of Fundamental RightsFacts: - 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)



The Charter of Fundamental RightsEHRC 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)



The Charter of Fundamental RightsHigh CourtCranston 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.


Masih v Awaz FM Employment TribunalX v Mid Sussex CAB Court of Appeal

Discrimination against volunteersWhether 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


Masih v Awaz FM Employment TribunalX v Mid Sussex CAB Court of Appeal

Discrimination against volunteersSeeking 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.’

Documents

The Importance of Strategic Litigation: the experience in Britain Peter Reading Director of Legal Policy Equality and Human Rights Commission, Britain