Strategic litigation: more harm than good?

Strategic litigation is a hot topic. Jolyon Maugham’s controversial Good Law Project provokes a visceral marmite effect. Some people absolute love it. Some, not so much. Sometimes referred to as ‘impact’, ‘test case’ or ‘public interest’ litigation, the idea that legal cases can be brought in order to achieve a wider result or impact than simply resolving a legal dispute for a particular individual is not new, though. Immigration lawyers and organisations like JCWI, Liberty, the Public Law Project, the AIRE Centre, Medical Justice and Detention Action have been at it for ages. We have also seen interest groups set up specifically to bring cases, as with the BAPIO and HSMP Forum challenges. These types of challenge have met with somewhat mixed success, a point to which I will return.

As an immigration lawyer, my interests, experience and knowledge are fairly narrow focussed. This piece looks mainly but not exclusively at litigation intended to protect or strengthen migrants’ rights. It builds and expands on a talk I gave on this subject in 2017 that I’ve been meaning to write up ever since.

What is strategic litigation?

The Public Law Project guide to strategic litigation says

“The aims of strategic litigation involve more than simply winning legal arguments in court: test case strategies might seek to create awareness and publicise the cause for which the strategy is mobilised, encourage public debate, set important precedents, achieve change for people in similar situations, and spark policy changes.”

The Good Law Project say that they “bring cases that seek to deliver changes with widespread effects” and set out five broad criteria that inform their decisions about what cases to bring.

Liberty say they “challenge unjust laws, policies and practices by taking landmark legal cases on the most pressing human rights issues of our time”. The Strategic Legal Fund, managed by the Immigration Law Practitioners Association, supports legal work that

“goes beyond securing justice for an individual and makes a significant contribution to law, practice and procedures to uphold and promote the rights of migrant groups in the UK.”

JCWI reply a similar definition.

There is a wider definition being used here by the Public Law Project and the Good Law Project. Their definition of impact is more expansive than the other organisations, which are more narrowly focussed on legal, practical and procedural benefits. This is important: it is easier to count a conventional loss in a court case as a victory according to the wider definition. When it comes to achieving change, there is certainly an argument that it is the wider impacts that really count in the long run. I’ll return to this point later.

There is also to my mind an important but fuzzy distinction between strategic litigation that was formulated and sought by the lawyers for some wider purpose and big, important cases that develop organically because the lawyers are representing the best interests of a particular client. Where an organisation is the named litigant it is clear who is calling the shots. Many cases have a foot in both camps; they involve lawyers who are alive to a particular issue and looking to challenge it if they can and who by design or by luck find themselves representing a person confronted by that issue.

Who is the client in strategic legal cases?

I’ve already listed some of the ‘usual suspects’ — as the government would no doubt regard them — behind cases that are classically regarded as strategic litigation. Sometimes organisations will bring a case in their own name. Sometimes they will apply to be a formal ‘intervener’ in a case of interest to them in order to make submissions on the legal issues. Sometimes they will assist and act on behalf of an individual who is bringing a case, in which case the case will be in the individual’s name. Each of these possibilities has advantages and disadvantages.

Some strategic litigation is brought on behalf of an individual or a group of individuals. If they have been affected by a particular government law or policy, their cases can become test cases which, if successful, will affect many other people in a similar situation. If you like winning cases — a fairly common preference in the legal community — then there are some powerful reasons to get involved in a test case on behalf of the individual human being affected (if you really like winning cases, you should probably apply to one of the government panels and start taking on government work). A powerful and sympathetic set of facts is very, very helpful when it comes to persuading a judge to allow a case. Particularly but not exclusively at the lower tiers of the court system.

The problem is that there are some very serious disadvantages for the individuals concerned. They become guinea pigs. Becoming a test case may well, depending on the situation, cause massive delay to resolution of the particular problem faced. It sacrifices one of the key advocacy tools available for winning cases, which is the person’s uniqueness. Allowing one case on its particular facts is one thing. Judges in a common law system tend to be very cautious by nature and will be reluctant to change the law if it changes outcomes for a large number of affected people. Test case status also risks adverse media and social media attention and can be very stressful. Becoming emblematic of a cause is a heavy burden to bear.

Who are the lawyers in strategic litigation cases?

Lefty, activist lawyers, of course. Except that we’ve seen attempts at strategic litigation from lawyers not positioned on the left of the political spectrum. Paul Diamond and the Christian Legal Centre spring to mind.

Taking the party politics out of the equation, Professor Stephen Meili of the University of Minnesota Law School defines ’cause lawyers’ as those

“who consciously seek social or political goals while simultaneously pursuing the interests of their individual clients.”

That seems like a suitable neutral working label and description for the lawyers seeking to pursue strategic litigation.

Except that I’m not sure that all strategic litigation cases always simultaneously pursue or protect the interests of the individual client. There is a risk that the social or political goals of the lawyers come first, as might the financial and career interests of the lawyers. The lawyers themselves will not see it that way. But I think it is important to recognise that lawyers are not entirely disinterested actors. We should be alive to conflicts of interest.

Being involved in strategic litigation can be highly stressful and badly paid. Legal aid rates are miserly compared to private work and strategic litigation may well involve a lot (like, a LOT) of free legal work. Such cases can represent an opportunity cost; the lawyer could instead be earning good money doing straightforward private client work instead, for example. There is also an increasingly a professional risk to bringing such cases, as adverse comment by judges or being summoned for a ‘Hamid‘ dressing-down could be very bad for your career. Adverse comment by a prominent government minister and hostile media coverage can be extremely threatening. One firm called out by Priti Patel when Home Secretary experienced an alleged far-right knife attack incident. More prosaically, badly losing some big cases may make no friends and influence no-one.

But, involvement in the big cases that go up to the highest levels of the court system is a great way to get your name in lights and to be invited to speak at conferences. It also gives you some great material to submit to the legal directories and raises your profile generally. The really big cases get in you in the newspapers and media and can make you an interesting dinner party guest or a community hero. It’s publicity, basically.

Even if you lose, it signals to a wider audience that you are a fighter and have an interest in a particular area of law. Wouldn’t it be great to have been involved in one of those legal cases that future generations of law students will be taught about? It’s a form of legacy. If you have a large ego — not entirely unknown in the legal community — then strategic litigation is a great way to feed it.

And some cases might also be lucrative, especially if your side wins and you get your costs paid at commercial rather than legal aid rates.

Lots of lawyers like to be involved in strategic litigation. Lots of aspiring and young lawyers want to go into law to get stuck into those kinds of cases. I worry that this may lead us to underprice the risks to the individual clients and the wider risks of embedding existing power structures.

What good has strategic litigation done?

Strategic litigation can have a very positive impact, in the sense that considerable numbers of people’s lives can be improved and there can be wider beneficial impacts as well. I will take two examples from the sphere of migrant rights.

The big, stand-out success for strategic litigation is, to my mind, the Detention Action challenge to the detained fast track system in 2015. All these years later and the government still hasn’t reintroduced it, and the version mooted by the Nationality and Borders Act 2022 is not as bad as the original (it’s still bad, obviously). Fewer migrants have experienced detention, enforced removals are down and the asylum success rate is up. It was a stain on the justice system and it was erased.

Importantly, individual challenges were ineffective by nature even for the individuals concerned, and where they did succeed left others still experiencing the same unfairness. Detention Action planned the challenge and brought it in their own name. It worked. Job done.

Another unmitigated success was the Quila case on the spouse visa age being raised from 18 to 21. The case went all the way to the Supreme Court and the outcome was that the spouse visa age was lowered again. Total success. Job done.

JCWI acted on behalf of the couple concerned. JCWI wanted to challenge the policy and found clients who were directly affected by it. Without the legal challenge, they faced ongoing separation. They had no choice but to litigate. They had to do it, or someone else had to. Either way, they were faced with delay. There was no possible divergence of interests between lawyer and client here, I think.

What damage has strategic litigation done?

There are two ways strategic litigation might not just have no impact but actually make things worse. One is by reinforcing a status quo that was previously ambiguous, at least to some degree. The other is by worsening the climate of rights for others.

There are plenty of failed strategic litigation cases out there and it is unfair to single any particular one out. The Good Law Project certainly has its share, for example.

In the immigration sphere, one example that comes to mind is McCarthy on EU free movement rights, from 2011. The facts were unsympathetic from a legal point of view and the case led to unintended very negative and very wide consequences. Not only did the case fail to expand or cement EU free movement rights but it ended up inadvertently curtailing them in a development the lawyers could not reasonably have foreseen: free movement rights were removed from all dual nationals. But, acting on behalf of a client who instructs you, what choice do you have as a lawyer but to run every conceivable arguable point?

A counterpoint to the successful Quila case might be MM, which involved an unsuccessful challenge to the £18,600 minimum income rule for spouse visas. The threshold was way above the minimum wage at the time and, just as with the age rule before it, it left many couples unable to live in the UK together for reasons beyond their control. The lawyers acting were ordinary immigration lawyers but organisations did then also intervene. The cases brought were not necessarily on strong facts, though. One had already been refused under the old rules, never mind the new ones. Others were brought before even making applications and receiving reasons. The case failed and it cemented in place the minimum income rule, which has been with us ever since. There was a silver lining, though, which was the introduction of an exceptional circumstance waiver for the rule. This was introduced because of the court challenge and while it is far from perfect, it has enabled many families to live together who would otherwise have been separated. The case might therefore be counted as a partial success.

The case of R (O (a minor)) v Secretary of State for the Home Department [2022] UKSC 3, also in the Supreme Court, is a further example of a strategic litigation case which, on the face of it, failed. The case was brought by the Project for the Registration of Children as British Citizens (PRCBC). They were instructed by one of the families they were helping and also brought a related linked case in their own name. The Supreme Court held that the government can set the fee for children to register as British citizens at an unaffordable level, basically. The right to citizenship was confirmed as a statutory right, not a constitutional one. The only success in the litigation itself was an order that the government needed to consider the best interests of children properly when deciding the fee level. It was a pyrrhic victory; the government did so and decided to keep the fees at the same level.

The court case failed, but the campaign linked to the court case succeeded, at least in part. A fee waiver was eventually introduced, which will help at least some families register their children as British. They almost certainly will need legal help to do that, but represents an improvement, at least. PRCBC had worked tirelessly and successfully outside the courtroom to build a wide coalition in favour of improving access to citizenship for children born in the United Kingdom. The court case helped with that, acting as a focal point for the campaign.

Finally, further along the strategic spectrum, there is the challenge to the Oakington detention centre, culminating in the Strasbourg case of Saadi v United Kingdom (Application no. 13229/03). This case was brought on behalf of individuals but it was very much set up by campaigners and lawyers, I think. The case failed and the judgment stands as authority for the proposition that states may detain asylum seekers for their administrative convenience. Something similar happened with the Britcits case which challenged the new rules on visas for elderly parents. There was some helpful clarification of the interpretation of the words of the relevant rules but the case basically failed. Both these examples could be argued to have merely confirmed (or perhaps slightly improved) the status quo. Or it might be said they entrenched the status quo.

I have picked these examples for a reason. Two failed in almost every way. Two failed in a conventional sense yet they can also be claimed as successes. Objectively, the rights of migrants appear to have been improved by the litigation because of the introduction of concessions. People who were previously denied rights have been able to claim them as a direct consequence. But there is an argument that these partial successes actually do more harm than good in the long run.

Achieving structural change

When I first started really thinking about this issue several years ago it was after reading an article by Stephen Meili entitled UK Refugee Lawyers: Pushing the Boundaries of Domestic Court Acceptance of International Human Rights Law. It wasn’t quite the ringing endorsement of me and my mates I’d hoped for from the title.

Meili thought that refugee ’cause lawyers’ had significantly expanded the role of international human rights norms in UK asylum adjudications. But at a cost:

“In the final analysis, refugee lawyers in the United Kingdom are not resisting state power over migration as much as trying to redefine it; that is, they seek to modify the sources on which that power is based. In the globalization context, they endeavor to fill the power vacuum in the new global legal order by pressuring the state (through its courts) to not only broaden human rights-based protections for refugees but to make those protections part of domestic law. In this way, cause lawyers are proponents of expanded state power over migration, provided that power is based on international human rights norms.”

Nando Sigona made similar points at around the same time in an interesting review of Fran Webber’s excellent book Borderline Justice. Fran, who is now active with the Institute for Race Relations, was a tenant at my chambers, Garden Court Chambers, and was involved in immigration and asylum law from the very early days in the 1970s. She was one of the first specialists and she approached immigration law and policy as an extension of the battle against race discrimination in the criminal courts. Court cases were part and parcel of a broader social and political struggle. Lawyers were not the only actors involved.

I’ve only been active in the sector since 2000 and I don’t know how things worked in the 1960s, 1970s and 1980s. I am pretty sure that since 2000, though, there has been little by way of wider social and political pressure for change. That may be starting to shift. Freedom From Torture and others have been doing some more effective public campaigning work through Together With Refugees, for example. There are some signs of organised and spontaneous community resistance to immigration raids. Public opinion on immigration and asylum issues is more complex and multifaceted than in recent years.

The Rwanda case may act as a catalyst for mobilising public opinion both for and against refugee rights. But that stands as an interesting example. It certainly is a big case, but perhaps it is not really strategic litigation. No one other than the government planned the case. Those facing removal to Rwanda have no choice but to fight it. It is spontaneous, organic litigation.

Sigona points to three potential risks associated to a court-centred activism for migrants’ rights. Firstly, migrants and refugees sometimes disappear and what one hears of their voices and experiences is only what is relevant and intelligible in the law courts. Secondly, legal activism tends to convey an atomised portrait of society, made of test cases and individual stories and dissociated from political movements and considerations. Finally, court-centred activism for migrants rights and social justice risks further expanding the rift between the ‘deserving’ citizens and the ‘scrounger’ immigrants that dominates current responses to immigration. These points all seem validly made to me. But what choice do lawyers and indeed migrants have?

Sigona ended by pointing to the broad based grassroots campaign against harsh family immigration rules introduced in 2012 as a potential way forward in bridging the citizen-immigrant divide. Britcits and then Families Together have done sterling work, but they are absolutely tiny and virtually unfunded. A combination of ‘court-centred activism’ (which may well be reactive and look very different to strategic litigation) and community organising might be a more effective way of achieving objectives but it is very hard to do.

To try and widen this out again as a conclusion, I can certainly see an argument that fighting and losing cases is a useful campaign tool. It might help establish a narrative. But there are two problems. One is that narratives have a life of their own. Bringing and losing cases on public procurement in a pandemic might make a case that politicians are in it for themselves and their mates, for example, much like the expenses scandal did. There might be an intention to limit the damage to certain politicians of a certain political party. But that’s not necessarily what will happen. Public trust in government might well be eroded. So be it, one might respond. It’s worth it, the people should know. There’s a cost, there, though. In the meantime, the other problem is that such cases might well end up entrenching or even worsening a deeply conservative approach to executive review by the judiciary. That might make individual challenges by private individuals who have no choice but to litigate even harder than they already are.

I don’t know what the answer is, and this rambling piece is more like my attempt to think things through than a well-argued piece of advocacy. I have no beef with organic, reactive and involuntary litigation by individuals or, where really necessary, organisations on behalf of a clear client group. My concern is that strategic litigation, which I think on reflection I would define as pre-planned and voluntary litigation, might potentially do more harm than good. Against that, I can pinpoint some real successes for strategic litigation, like the Detention Action case, and I cannot point directly to clear, serious, adverse consequences where strategic cases have failed.

What do you think? Leave a comment or respond on Twitter.