Charities campaigning for change should think hard before pursuing court cases

Getting involved in legal action comes with risks and no guarantees of victory, but it can be a powerful weapon.

The introduction of the “gagging clause” to ban charities using government grants to campaign has put the question of charity campaigning back in the spotlight.

Legal test cases – cases brought to court in an attempt to change the way the law is applied – probably reflect charity campaigning at its most controversial. After all, the previous justice secretary described judicial review (a process where a judge reviews the lawfulness of a decision or action made by a public body) as a promotional tool for leftwing campaigners, and apparently regards the entire legal system as “exploited inappropriately by pressure groups”.

Getting involved in a legal case can be long-winded, impact on a charity’s relationship with government and there is never a guaranteed positive outcome. So is it ever worth it? A case that the charity Contact a Family successfully saw through the supreme court recently illustrates why, if used strategically, it can be a useful tool for charity campaigners.

The case

Cameron Mathieson was disabled and spent much of the last two years of his short life in hospital, with his family by his side. After 84 days in hospital, government rules meant that his disability living allowance (DLA) was stopped and this hit his family when they needed financial support most. They challenged the DLA takeaway rule, and last July the supreme court unanimously agreed with their case and judged that it breached Mathieson’s human rights. Contact a Family supported the Mathiesons throughout their legal battle. From our experience, here are four tests to help you decide if involvement in a test case is the right option for your charity.

1 Does the case have the potential to progress one of your existing campaign goals?

Be clear about your campaign goals, and only get involved in a case that has the potential to progress one of these goals. We knew the government’s DLA takeaway rule was a real problem for families and financial support was a key campaign priority for us.

2 Can your charity genuinely add value to the legal process?

Charities can be in a strong position to do this by providing expert evidence, explaining the wider implications of a case to the court. If the case revolves around an issue that really matters to your beneficiaries, and is already a campaign priority, then you probably already have the evidence you need.

Look for partners who can add value, too. We worked with the Children’s Trust on this case. Together we shared our research which showed that the Mathieson’s experience was not unique. This was important to the case and was cited in the final judgment.

3 Is a legal test case the right tool to use for the issue?

Weigh up the other options. Are policy avenues exhausted or would a political campaign work better instead? Run through the risks, likelihood of success and resource implications (usually fairly modest when providing evidence to a court). And don’t get carried away. If you believe you can achieve more by maintaining dialogue with civil servants or government ministers on the issue, the bravest thing to do is to walk away from the case.

The legal route was right in the Mathieson’s case because the DLA takeaway rule had proved difficult to overturn through usual channels, and in the current financial climate it was a difficult political ask.

4 Does test case campaigning fit with your charity’s overall strategy and brand?

It’s important to understand the role campaigning plays in your charity’s overall work for change. Contact a Family supports families with disabled children and uses that experience to champion change where needed. Its role as a campaigning organisation is not just to speak for families of disabled children, but to provide a platform for them to have their voices heard.

So ultimately, it comes back to your view on the role charities should play when it comes to campaigning. Contact a Family is clear that its role is to stand with families of disabled children and work in partnership with them to effect change. As chief executive of the charity, sitting in court next to Mathieson’s family, and hearing an unfair rule being overturned for other families of disabled children – I felt that it was the right place for Contact a Family to be.

(Guardian: Voluntary Sector Network)

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