Cluster on Strategic Litigation
The Work Plan for 2015 outlines how Equinet would assist the setting up of a members-led thematic cluster bringing together equality bodies’ legal experts with an interest in strategic litigation in discrimination cases.
Strategic litigation is already used by some equality bodies, while others currently consider experimenting the use of this tool to take up cases that can result in important clarifications of the applicable law and positive changes going beyond the merits of the particular case. This thematic cluster provides a space for interested equality bodies as part of an expert group to:
- discuss the advantages, disadvantages and challenges of strategic litigation,
- share and discuss criteria for strategic litigation and
- analyse successful examples of court cases where strategic litigation brought about positive results and developments in the law.
Cluster Kick-Off Meeting – Brussels, December 2015
The first meeting of the Equinet Cluster on Strategic Litigation took place in Brussels, on 16 December, with the participation of representatives from 7 equality bodies. This first meeting discussed:
- The definition of strategic litigation: participants agreed that strategic litigation is a method whereby the equality body does not take all complaints received to court but, using a set of criteria, chooses the ones that can be expected to have the widest and strongest effect benefiting the whole society.
- Tools for strategic litigation: participants agreed that there are different ways for equality bodies (and other actors) to engage in strategic litigation. This might include taking the case in their own name, representing the claimant in front of the court, financially and otherwise supporting the claimant in the court proceedings, intervening on the side of the claimant, or submitting third-party interventions / amicus curiae.
- The purpose of strategic litigation: participants agreed that the purpose of strategic litigation is in abstracto to achieve a wider effect going beyond the individual case in promoting equality. In practice, equality bodies can use strategic litigation to establish, clarify, and strengthen equality and human rights legislation. Strategic litigation by its very definition also looks at the ripple effects and the echoes created in media and vis-à-vis the legislator.
- Selection criteria for cases: Participants discussed the importance of having a due and transparent process for choosing the cases for strategic litigation. The criteria are inevitably different for the equality bodies, but many similarities were identified, e.g. criteria such as:
– Merits of the case and evidence available
– Whether the case has the potential to establish, clarify and strengthen the law
– Fields, grounds and issues of strategic importance identified in the equality body’s strategic plan and/or strategic litigation guidelines
– The number of people affected
– The wider effect and impact the case can be expected to have
– Risks (e.g. cost implications, risk of backlash in the society)
– Whether Strategic Litigation is the best way to tackle the problem (or e.g. a press communication could be more effective)