Unlike the provision of legal services, the goals of strategic litigation are broader than helping an individual client. Individual cases are selected for their impact beyond the client. Test cases set a precedent for future cases involving the same question of law. Strategic litigation is often referred to as impact litigation because it seeks to have an impact beyond the actual outcome of the case by:
- Identifying gaps in domestic and international human rights laws;
- Changing law and policy to rectify identified gaps and violations in domestic and international human rights laws;
- Achieving legal and social advancement for marginalised groups in society; and
- Encouraging public debate in areas often overlooked by the Government.
Strategic litigation in Israel
With a vibrant non-Governmental sector, which actively brings strategic litigation cases to court, I travelled to Israel to work for ACRI to gain experience of strategic litigation practice.
Established in 1972, ACRI is Israel’s oldest and largest human rights organisation dealing with the entire spectrum of civil liberties issues in Israel and the Occupied Territories. Every year, dozens of test cases are brought by ACRI before the Supreme Court, District and Labor Courts, government ministries, and Knesset committees.
Legal petitions are brought to the Supreme Court in Israel sitting as the High Court of Justice by the active, non-Governmental sector in Israel. Regardless of whether you support the causes, narrative or politics of the NGOs in Israel, it is still possible to draw one firm conclusion, that the rule of law in Israel and the freedom of its judiciary play a central and essential constitutional role in Israeli civil and political life.
Israel does not have a complete codified constitution. Israel has a series of ‘Basic Laws,’ each of which was originally intended to be draft chapters of a future constitution. It also has a Declaration of Independence, which is of considerable normative effect and which is referenced in one of the Basic Laws most relevant to human and civil rights – the protection of Human Dignity and Liberty.
One of the reasons strategic litigation is effective in Israel is because of the liberal approach adopted by courts to hearing test cases. For instance, the liberal approach to the ‘rules of standing’ allows NGOs to bring test cases without showing an individual has been injured by the policy or law the case seeks to challenge.
At ACRI I worked on cases involving welfare reform, Government wire-tapping, discrimination by hostels against homeless people with HIV, and criminal liability for insulting a public official.
ACRI prepared a position paper for the Government pushing for the examination of the assessment method of welfare benefits to ensure a guaranteed and adequate subsistence minimum. The Government responded to a Freedom of Information request by ACRI, stating that they had no calculation method to determine welfare provision.
The level of welfare benefits should be determined on the basis of transparent and plausible methods of calculation according to the actual needs of people in line with their right to human dignity and liberty. After completing a cross-comparative research study of the methods employed by EU countries to calculate welfare provision, it became clear there is no agreed method at EU level to calculate the amount of welfare provision required to live a life of dignity.
For instance, Britain has no method for calculating the amount of welfare benefits. Benefit levels in Britain reflect political decisions on the amount governments in Britain have been prepared to spend, not of adequacy when determining the level of welfare benefits. Only two EU member state countries, Germany and Sweden, have embodied the right to an adequate level of living in statute. Germany uses a rigorous Sample Survey on Income and Expenditure to ascertain the financial provision individuals and families need to have an acceptable standard of living, and Sweden uses the reference budget to determine the social welfare allowance.
A position paper pushing for a fundamental review of welfare provision was submitted to the Government. ACRI is considering launching a test case in the Supreme Court.
Wire-tapping has become a phenomenon across the globe. At present wire-tapping is permitted in Israel for security purposes (as opposed to wire-tapping for criminal enforcement) once a permit is issued by the Prime Minister. Every permit issued by the Prime Minister must be reported to the Knesset and the Attorney General.
At present, the process of issuing permits for security wire-tapping is without scrutiny or transparency; further judicial review cannot be used to review decisions to issue permits. There is little information available regarding the prevalence of security wire-tapping in Israel, and the general criteria and guidelines which the Prime Minister must adhere to before issuing permits authorising wire-tapping.
I worked with ACRI on preparing a freedom of information case compelling the Government to publish the statistics and guidelines for security wire-tapping. The Government responded stating that although the Prime Minister authorises the permits, the preparation for issuing the permits is undertaken by the Security Service. The Security Service cannot be compelled to disclose information regarding security wire-tapping as the freedom of information legislation does not apply to it. The case has now closed.
Discrimination against people with HIV An NGO in Tel Aviv, which provides homeless people with shelter, introduced a policy to exclude people with HIV and hepatitis C from the homeless shelter. Tel Aviv municipality refused to take action against the NGO’s policy. As a result, I worked with ACRI to issue a case against the NGO and Tel Aviv municipality. ACRI’s test case is based on two fundamental principles: first, everyone has a basic right to shelter; and second, the shelter’s policy discriminates against people with HIV and hepatitis C.
The judge decided in favour of the NGO and Tel Aviv municipality. The judge found it would be dangerous to allow infected homelesspeople to come into contact with non-infected homeless people in cramped environments, and it was important to protect homeless people from transmitting HIV and hepatitis C.
Insulting a public official
Section 288 of the penal code in Israel states, “any person who insults by movements, words or actions a civil servant when they are fulfilling their duty or in relation to fulfilling their duty can face a maximum sentence of six months imprisonment.”
On 31 December, 2012, Rabbi Elitzur Segal was convicted of insulting a public official after publishing an article on a website that criticised former IDF Chief Rabbi Israel Weiss. As the article could be construed as ‘insulting’ towards the Chief Rabbi who was a public official at the time of the publication of the article, Rabbi Segal was sentenced to a suspended prison term of six months, ordered to pay a NIS 3,000 fine and compensation of NIS 4,000 shekels.
Following his conviction, Rabbi Segal appealed his conviction, but it was rejected. The court explained Rabbi Segal had crossed the ‘acceptable line’ of criticism. However the six month probationary sentence was reduced to 30 days after the court explained that ‘punishment should be avoided for it does more harm than necessary’.
I worked with ACRI to file a amicus curiae brief to compel the High Court of Justice to re-interpret the section of the Act to ensure that it does not infringe the basic democratic right to freedom of expression, such that people can freely criticise a public official.
Strategic lessons for England and Wales
Strategic litigation can be used as a tool to bring about progressive change and to develop democratic values and the rule of law, particularly in areas where governments have failed to respond. The liberal legal conditions in Israel allow test cases to be brought effectively by NGOs. It is unfortunate that strategic litigation is not used more widely in England and Wales. We should consider developing strategic litigation as a model that can be incorporated within our legal system. Courts in England and Wales should be more willing to hear test cases. With cuts to legal aid, sadly this is unlikely to happen.