Campaigning litigation Liberty’s approach

James Welch

3rd February 2011

“Campaigning organisation”

PolicyMediaLegal casework

– Advice and information

Campaign priorities (1)

(N.B. currently under review)

We must fight punishment without trial and the worst excesses of the War against Terror.

We must promote criminal due process and resist wider police powers, especially those that limit peaceful dissent.

Campaign priorities (2)

We must protect the right to privacy and halt the introduction of ID cards.

We must advance the rights of asylum seekers and other vulnerable minorities.

We must broaden respect and understanding of human rights and their universal application.

“War on terror”

Control orders Closed trials and secret evidence Rendition Collusion in torture Refusal of security clearance

Due process, police & protest

Extradition Section 44 Terrorism Act 2000 Disproportionate use of search powers

against BME groups “Kettling” Obstacles to protest

Privacy

Retention of DNA

Criminal Records Bureau

Surveillance and the Regulation of Investigatory Powers Act 2000

Asylum seekers

Conditions of detention

Detention of children

Discrimination claims?

Culture of rights

“Common values” campaign

Religious freedom / expression Rights of young people Victims’ rights

Legal work

Domestic cases– Typically judicial review

Cases before the European Court of Human Rights – Lack of domestic remedy where legislation is

clearly incompatible with the Convention

Interventions (both domestic and before ECtHR)

Strategic litigation

Small number of cases Don’t aim to do lots of cases on the same

issue

But– “DNA clinic”– CRB issues

Sources of cases

Advice and information – Written and telephone advice

Referrals Media

– Reports in the media– Working with journalists

Seeking cases out

Factors relevant to case selection

Campaigning valueLegal meritsFunding & costs risk

“Dual key”

Campaigning value

Does the case come serve our campaigning priorities?

Can we campaign on the back of the case? Is client willing for us to publicise the case? How will case / client play in the media?

Interplay with policy

Legal merits

What will we achieve through litigation?– Show that a policy, practice, action was unlawful– Achieve a compatible reading (s.3 HRA 1998)– Achieve a declaration of incompatibility (s.4 HRA)– Damages (?)

What are the prospects of success? What will the impact of the case be?

– Value as a precedent– Potential to set an unhelpful precedent

Funding & costs risk

Does the client face a costs risk?– ECtHR cases– Tribunals with no / limited power to award costs

Is the client eligible for legal aid?– “Costs protection”

Conditional fee agreements / pro bono– After the event insurance– Protective costs orders– Indemnity– Client taking the risk him/herself

Pro bono resources

Counsel– Interesting cases– Career advancement

Solicitors’ firms– Pro bono commitment– Association with Liberty– Chance to engage / train staff, particularly junior

fee earners

Interventions

“Third party intervention” “Amicus brief” Greater use and acceptance in recent years

Written or oral?

Supreme Court

“Non-governmental organization seeking to make submissions in the public interest”

Application for permission (Rule 15 Supreme Court Rules 2009)

Substantive appeal (Rule 26) Presumption that no costs order will be made

either in favour of or against an intervener (Rule 46(3))

ECtHR

“Any person concerned who is not the applicant” “Reasoned” application within 12 weeks of the case

being communicated or case being taken on by the Grand Chamber

www.echr.coe.int “Pending cases” Usually limited to 10 typed pages Exceptionally leave to make oral submissions

“Added value”

Additional information Additional arguments Explain wider significance of the case Position espoused by neither party Marker of the significance of a case (?)

Danger!

In re E (a child) [2008] UKHL 66

“An intervention is however of no assistance if it merely repeats points which the appellant or respondent has already made. […] It is not the role of an intervener to be an additional counsel for one of the parties. This is particularly important in the case of an oral intervention.” Lord Hoffmann

Benefits to interveners

Influence development of the law in a case in which they are not instructed by one of the parties

Position from which to comment in the media Not constrained by duties to a client

No right answers

Things go wrong Supportive Board / management committee Trumpet your successes Success breeds success