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 3

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 5

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.

8 Strategic Litigation Support every case No priorities No selection criteria Win or lose Very few partnerships 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 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

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!

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