Janet Morrison: Strategic litigation can be a useful tool – Third Sector
At the end of 2017, a courageous individual – known in the case as RF – took the decision to take the Department for Work and Pensions to court over changes to personal independence payment regulations. The case was led by lawyers at the Public Law Project and supported by a number of charities, including Mind, Inclusion London, Revolving Doors, Disabled People Against Cuts, Disability Rights and the National Autistic Society.
RF won and the DWP announced that it would review the entitlements for 1.6 million benefit claimants, with about 220,000 people expected to receive more money.
It was a powerful result that showed the impact of legal action can be decisive and profound.
Yet many charities and voluntary organisations see campaigning in terms of influencing Whitehall and parliament, but stop short of seeing strategic litigation as an effective and appropriate tool.
Nervousness about litigating is of course entirely understandable. The freedom of the sector to undertake political activities has been undermined, legal aid for clients has been reduced and civic space is shrinking. Public trust is at an all-time low and trustees are increasingly anxious about reputational risk. Involvement in legal action can be expensive and risky, though it doesn’t always need to be, and many charities and voluntary organisations are not very familiar with legal tools.
However, a thoughtful review of this case by academics at University College London offers some useful advice.
Be ‘law-ready’ before a case arises
There is a three-month window to launch a judicial review, as RF did. This underscores the need for organisations to be “law ready” before a case arises.
Having well-established knowledge and a long-term priority on the issue will ease your ability to move swiftly and confidently, as will a board that is already primed and knowledgeable about the benefits of legal action as part of the campaigning toolbox.
Going to court can be expensive, but…
It is worth weighing these costs up against the potential benefits of a big legal win such as RF’s.
Many organisations find it difficult to measure or benchmark the effectiveness of their campaigning work but are confident about their investment in staff and the engagement of volunteers, supporters and service users in this work. However, when it comes to legal action it is easy to identify potential expense without considering whether it might be a more effective and impactful use of resources.
Think about the impact on vulnerable clients of becoming litigants
It can be very daunting for any individual to take the government to court. They will need both courage and a good support network from their lawyers and others around them to take a case that has no guarantee of success.
Work with others in your sector
This case identifies some of the challenges of voluntary organisations working collaboratively: establishing who else is planning to take action and who should take the lead.
But it also shows the immense benefits of doing so. The strength of this case lay in what all the partners – the Public Law Project, Mind, Inclusion London, the Equality and Human Rights Commission and others – could bring to the table: potential litigants, case studies, expert witnesses, gravity and new lines of argument, prior policy commitment and the capacity to drum up visible support in the courtroom for the litigant, promote the story in the media and follow through on subsequent consultation were all vital.
Be prepared to lose, or at least for a long journey
The outcomes from any legal action are not guaranteed. That doesn’t mean it’s not right to consider taking such action, but it’s important from the outset to be realistic. Lawyers at the Public Law Project were very thorough in briefing the litigant to be realistic about the chance of success and to manage their expectations. This was wise, for the DWP has a reputation for appealing judgments against it to the bitter end. In this case it didn’t, but this is undoubtedly a huge deterrent to many potential litigants and their lawyers.
Raising awareness of the judgment to the people who need to know
Getting news out about the successful judgment to advice professionals – in this case disability and welfare advisers – and to affected groups, is obviously important. In particular, although the message might not be straightforward, it’s important to consider how to communicate accessibly what the legal judgment means before regulations or guidance are changed and to keep key audiences up-to-date. Many welfare advisers said that, although they were aware that RF’s case had been successful, they were unsure about how to advise their clients in the meantime.
A legal judgment is not the end of the road
One thing that is spelt out clearly by this case is the importance of sustaining the commitment post-judgment: what the report calls the “legacy phase”. The government committed to implementing new guidance for PIP assessments, but engaging with the drafting process was a whole new piece of work for the person and organisations involved.
Reading this, it is clear that who engages in this process, when and how are all contested issues. The government controls access to this process and civil society must remain connected and collaborative to ensure all voices are heard.
More than a year after the judgment, the jury seems to be out on whether all previous PIP decisions have been reviewed.
In the end, proving an unfair system and developing a new policy are just the first steps in ensuring correct decision-making for vulnerable individuals. The stress of that process remains very real for all too many people reliant on PIP.
But the impact of such a good win remains powerful and inspiring.
Janet Morrison is chair of the Baring Foundation and chair of the Association of Charitable Foundations