Legal powers

Judicial review proceedings are relatively simple proceedings taken in the High Court in England and Wales and the Court of Session in Scotland in relation to a public sector body which has breached, is breaching, or may be about to breach the law, including a provision of the Human Rights Act. In England and Wales proceedings need to be taken quickly - within three months of the act, policy, decision or failure to act which is the subject of the case. In Scotland there is no time limit for applications, but the application has to be made without undue delay. The court can make a declaration as to whether the policy is lawful and can quash decisions or issue an injunction or, in Scotland, an interdict.

Only the Commission or an individual affected by the issue can take judicial review proceedings under the Human Rights Act.

Judicial review may be appropriate where an unlawful decision or action (or failure to act) has been taken by a public body and no alternative remedy is available. The grounds on which the Commission may bring a judicial review claim are not limited to breaches (or attempts to prevent a breach) of the HRA. A judicial review can be brought on any grounds so long as the subject matter of the claim relates to a statutory function of the Commission (i.e. the equality, human rights and good relations duties set out in the Equality Act 2006).

The Commission can bring judicial review in its own name under the HRA without the need for it to be a victim of the violation. The most obvious situations for the Commission to bring the claim (rather than a victim) are:

• Where a change in the law has just come into force where an early challenge could prevent actual violations
• Where the subject matter of the case is one where the Commission is best placed due to its history, statutory duties or particular expertise to bring the claim
• Where there are a wide range of victims whose experience can be used to illustrate a problem but where a claim brought by any one of them would not tell the whole story
• Where the actual or potential victims do not have access to lawyers, or cannot fund a claim themselves.

An example is where the government announces that it is going to introduce a change in the law which the Commission believes will lead to violations of affected people’s human rights. The Commission can threaten judicial review before the legislation is passed, and if necessary, issue or, in Scotland, raise the proceedings as soon as the law is in force. When the previous government proposed extending the time for pre-charge detention for terrorist suspects to 42 days, the Commission threatened judicial review. The proposal was dropped so no proceedings were necessary.

Third party interventions have been used frequently and to good effect by the Commission to date both in equality cases and in human rights cases, both domestically and in the European Court of Human Rights. Where the Commission intervenes the case is usually in the higher courts so the case is focussed on legal issues not on factual disputes.

The Commission seeks out public interest cases which raise issues affecting vulnerable groups, seeking to clarify or challenge important questions of law, involving serious matters of public policy or general public concern, and/or concerning systematic default or abuse by a public body.

The Commission chooses to intervene in cases that have a significant impact and which reflect the priorities outlined in the legal strategy.

A third party intervention by the Commission in a particular case can have a number of purposes:

• To support the position of one of the parties on an important point of law or public policy
• To highlight to the court the wider public impact of the case
• To provide expert legal analysis on one or more of the issues raised in the case
• To provide input on comparative and international law aspects of the case
• To provide expert evidence on the issues based on research.

In cases where the Commission intervenes as a third party, it seeks to provide added value and assist the court from an independent perspective relying where possible on the Commission’s own evidence (such as research reports). In each instance where we intervene we are doing one or more of the of the following:

• Seeking to develop the law in a particular way – this may involve putting an alternative view of the law not being advanced by either party
• Providing evidence / research that the parties may not present, particularly any of the Commission's own research or inquiry findings
• Describing academic work / learning
• Including comparative law e.g. across the EU
• Including relevant International law – both treaties and decisions
• Addressing statements of value, for instance if the interpretation or application of a convention right should be informed by a human rights value (dignity, the rule of law etc.)

If you want to ask the Commission for assistance with an issue you think might be of interest to us, then how you do this depends on who you are:

Legal representatives should call Lawyers' Referral Helpline on 0161 829 8407 (Tues to Thurs, 10am to 1pm) for England and Wales. The Lawyers' Referral helpline can also be contacted at legalrequest@equalityhumanrights.com.

Please bear in mind that securing assistance will normally take upwards of 4 weeks so we ask that you contact us as soon as you can. It would be of assistance if you could look through our Business Plan and Strategic Litigation Policy as a preliminary to contacting us about a case.

Individuals who wish to have their issue assessed for its strategic value, should call the Equality Advisory Support Service (EASS). The EASS receives calls from individuals and works collaboratively with advice agencies and other organisations who make referrals to it.

It provides information, assistance and support (but not legal advice or representation) to individuals across Britain about discrimination and human rights issues and the applicable law.

The contact details for the EASS are:
Phone: 0808 800 0082
Textphone: 0808 800 0084
Website: //www.equalityadvisoryservice.com/
Post: FREEPOST Equality Advisory Support Service FPN4431

Opening hours:
09:00 to 20:00 Monday to Friday
10:00 to 14:00 Saturday
Closed on Sundays and Bank Holidays

If the EASS view the facts as being of strategic interest to the Commission, they will refer the matter to us for further scoping. We will then decide whether to offer support. The EASS could, alternatively, refer you to another agency who might be better placed to help you.

It is important to contact the EASS as soon as you feel you might have an issue, as it will take time to decide if you have a legal issue of strategic interest. As courts and tribunals have strict time limits, then any delay could have serious consequences.