How the third sector can use litigation for change

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10th July 2017 by TFN Guest 0 Comments

That’s life. Sometimes we just accept that the way things are is the way things are, and probably always will be. 

Even in the voluntary sector where we daily work with people whose lives are riddled with injustice, poverty and inequality, we sometimes quietly resign ourselves that the ways things are for those that we work for, is not likely to improve for a long while.

It is often not that we outright accept the injustice and infringement of people’s rights.  It is just that all of our influencing and lobbying and persuasion seems to have had little impact in getting policy, legislative or practice change on a particular issue. 

There is, however, a tool to get change that is rarely used in Scotland and yet can have a significant impact. Strategic litigation, or sometimes called test cases, can bring about significant shifts in law, practice or public awareness. 

Third sector organisations can take a judicial review, support individuals to take a judicial review or use their expertise to intervene in a case. 

These cases can then bring a positive change not just for one person but for a large number and on issues that make a significant difference to people’s lives.

Mhairi Snowden

Mhairi Snowden

To make best use of strategic litigation, like for many things, we are better if we work together

For example, think of CLAN Childlaw’s intervention to force a re-think of information sharing around the Named Person scheme. 

Think of the successful challenge of the benefit cap for single parents, supported by CPAG. Think of the case by Rape Crisis Scotland to make sure that legal aid is available for survivors to be represented in decisions about medical records being released.

Strategic litigation is not an easy tool to use, and needs to be approached with a clear head and realistic approach.

In a report from a recent conference organised by the Human Rights Consortium Scotland and the Equality and Human Rights Commission, participants spoke about the need to consider what it is that you want to realistically achieve by using litigation. 

Practical issues such as finance, timescale, communications and buy-in from board members need to be agreed. Finding someone who is willing to be the ‘victim’ in a court case, supported by an organisation, can be difficult and sensitive.

Legal contacts need to be explored and there is a three month time limit for a judicial review petitions which means that all of this needs to be considered relatively quickly.

The good news is that it doesn’t need to be each organisation acting alone – to make best use of strategic litigation, like for many things, we are better if we work together. 

Organisations can share expertise, evidence, examples and resource in order to assert individuals’ rights in court.  

You can get in touch with the Human Rights Consortium Scotland to get engaged in collaboration in this area.

The third sector in Scotland is in a unique position to identify systemic problems in Scotland.

Strategic litigation is a valuable tool that we can use to ensure that these systemic problems are addressed and that individuals’ rights go from merely paper and rhetoric, to reality.  

Mhairi Snowden is co-ordinator of the Human Rights Consortium Scotland.