Civil Society and Public Law: Litigation and Advocacy

Introduction

Civil society includes charities, NGOs, unions, community groups, and campaign networks. Pressure groups focus on specific issues and seek to influence government action. Together, these organisations shape public law through two main routes: litigation (using the courts to challenge decisions and policies) and advocacy (persuading decision-makers and the public). This guide sets out how these methods work, key legal routes, notable case examples, and practical steps to run effective programmes that change law and policy.

What You'll Learn

• How civil society uses litigation and advocacy to influence public law
• When to choose judicial review, human rights claims, or other routes
• The role of interventions, amicus input, and coalitions
• How advocacy supports a legal case, and vice versa
• Funding, costs, and risk management for public interest cases
• Compliance essentials for charities and campaigners
• Case studies showing real-world impact
• A checklist and quick reference you can use in practice

Core Concepts

Strategic litigation

Strategic litigation is the planned use of legal action to bring about a wider policy or legal change, not just a result for one client.

• Typical aims

  • Clarify ambiguous law or challenge an unlawful policy
  • Hold public bodies to account and secure compliance
  • Secure remedies that influence future conduct (e.g., quashing orders, declarations)

• Choosing a case

  • Clear legal issue with public importance
  • Suitable claimant with standing and evidence
  • Timely filing (e.g., judicial review must be brought promptly and within three months)
  • Realistic remedies and enforcement pathway

• Forums and routes

  • Judicial review in the Administrative Court or a specialist list (e.g., Planning Court)
  • Human Rights Act 1998 claims alongside or within public law proceedings
  • Tribunal systems (e.g., Information Rights, Immigration and Asylum, Social Security)
  • International routes after domestic remedies (e.g., European Court of Human Rights)

• Evidence and procedure

  • Pre-Action Protocol for Judicial Review and focused grounds
  • Witness statements, expert analysis, and objective data (FOI can help)
  • Interventions by NGOs to assist the court with context and comparative material

Tip: Plan communications and coalition work around key legal milestones (pre-action letter, permission decision, hearing, judgment) to keep the issue on the agenda.

Advocacy channels and tactics

Advocacy complements litigation by shaping the public and political context.

• Where to engage

  • Parliament: MPs and peers, select committees, APPGs
  • Government: consultations, guidance drafting, regulators, local authorities
  • Public: community outreach, traditional media, digital campaigns

• What to use

  • Evidence-led briefing papers and model clauses
  • Public campaigns, petitions, and open letters
  • Strategic media relations and spokesperson training
  • Partnerships with affected communities and professionals

• Good practice

  • Clear objectives and consistent messages
  • Defined roles within coalitions; agree decision-making in writing
  • Measure reach and policy movement, not just media hits
  • Coordinate messaging with the legal timetable and avoid commenting on sub judice matters

Standing, funding, and risk

• Standing

  • Judicial review requires a “sufficient interest” in the matter. Representative groups often qualify where issues affect their members or statutory aims.
  • Interventions allow organisations without standing as claimants to assist the court.

• Funding options

  • Grants, pro bono partnerships, Conditional Fee Agreements, and crowdfunding
  • Costs protection: Protective Costs Orders and, for environmental cases, Aarhus costs caps (subject to eligibility)
  • After-the-Event (ATE) insurance to manage adverse costs risk

• Compliance and reputational issues

  • Charities must ensure activities further their charitable purposes and remain non-partisan (Charity Commission guidance CC9)
  • Watch regulated campaign spending rules during election periods (Electoral Commission guidance)
  • Manage data lawfully, check media statements for defamation risk, and protect vulnerable clients (e.g., anonymity orders)

Judicial review, human rights, and other routes

• Judicial review

  • Grounds include illegality, procedural unfairness, and irrationality
  • Remedies include quashing orders, prohibiting/mandatory orders, declarations, and interim relief
  • Deadlines: promptly and within three months (shorter in some regimes, e.g., procurement)

• Human Rights Act 1998

  • Public authorities must act compatibly with Convention rights (s.6)
  • Courts interpret legislation, so far as possible, compatibly (s.3)
  • If not possible, higher courts may issue a declaration of incompatibility (s.4)

• Equality and consultation duties

  • Public Sector Equality Duty (Equality Act 2010, s.149): decision-makers must have due regard to equality aims, backed by evidence
  • Statutory consultation duties and legitimate expectation can ground challenges

• Other forums

  • Information rights: FOIA/Environmental Information requests with appeals to the ICO and tribunals
  • Ombudsmen for maladministration
  • International petitions (e.g., ECtHR) after exhausting domestic remedies

Key Examples or Case Studies

R (Unison) v Lord Chancellor [2017] UKSC 51

• Context: Employment tribunal fees led to a sharp fall in claims.
• Role of civil society: The trade union Unison brought the claim with wide support from advice agencies and equality groups.
• Outcome: The Supreme Court quashed the Fees Order. The judgment stressed access to justice and the rule of law.
• Takeaway: A well-prepared challenge with strong data can reset a nationwide policy and reopen routes to redress.

ClientEarth air quality litigation (2015–2018)

• Context: The UK repeatedly failed to meet legal limits for nitrogen dioxide.
• Role of civil society: ClientEarth brought successive claims, supported by health NGOs and local campaigners.
• Outcome: Courts ordered the government to produce lawful plans, leading to cleaner air policies and funding for local measures.
• Takeaway: Persistence matters; repeated challenges can secure compliance where a single case is not enough.

Good Law Project and EveryDoctor v Secretary of State for Health and Social Care [2022] EWHC 46 (TCC)

• Context: “VIP lane” for pandemic PPE contracts.
• Role of civil society: Two organisations challenged procurement processes, with expert evidence and public interest arguments.
• Outcome: The High Court held the VIP lane unlawful and criticised the approach to due diligence.
• Takeaway: Procurement law can be a sharp tool for transparency and standards in public spending.

R (Miller) v The Prime Minister [2019] UKSC 41

• Context: Prorogation of Parliament during Brexit debates.
• Role of civil society: Multiple NGOs and constitutional scholars intervened with comparative and constitutional analysis.
• Outcome: The Supreme Court held the prorogation unlawful.
• Takeaway: Interventions can help a court consider wider constitutional consequences.

Brown v Board of Education 347 US 483 (1954) and sustained advocacy by Amnesty International

• Brown v Board: The NAACP Legal Defense Fund used careful case selection and community support to end school segregation in the US. It remains a model for long-term strategic litigation.
• Amnesty International: Persistent campaigning, research, and international advocacy have shaped human rights standards and influenced domestic reforms worldwide.
• Takeaway: Litigation and non-litigation strategies can drive change across different legal systems.

Practical Applications

• Clarify the change you seek

  • Define the legal and policy outcomes you want in a single page
  • Map the decision-maker, legal routes, and stakeholders affected

• Choose the right legal route

  • JR for public body decisions and policies; add HRA grounds where relevant
  • Consider statutory appeals, tribunals, ombudsmen, and procurement challenges
  • Check time limits and whether alternative remedies should be tried first

• Prepare your case

  • Gather robust evidence: data, expert reports, community testimony
  • Use FOI/EIR requests early; maintain a disclosure log
  • Draft a precise pre-action letter; retain counsel early for merits and remedy advice

• Manage costs and risk

  • Prepare a budget and funding plan (grants, CFAs, crowdfunding)
  • Consider ATE insurance and costs protection applications
  • Agree roles and responsibilities in writing with partners and pro bono teams

• Plan advocacy around the case

  • Identify audiences: ministers, officials, MPs/peers, regulators, local leaders, media, public
  • Produce timed briefings, FAQs, and case studies of real impact (with consent)
  • Train spokespeople; set media protocols to avoid prejudicing proceedings

• Build an effective coalition

  • Partner with community groups and professionals who see the practical effects
  • Share a common message and data set; avoid duplication
  • Create a rapid-reaction group for developments (permission decisions, hearings, judgments)

• Ensure compliance

  • For charities: align with purposes and stay non-partisan; document decision-making
  • During election periods: check regulated spending and reporting rules
  • Maintain data protection standards; plan for anonymity orders where needed

• Follow through after judgment

  • Track implementation, request updates, and, if needed, return to court
  • Use the result to brief Parliament and regulators on next steps
  • Publish an accessible summary for affected communities

Summary Checklist

• Identify the issue, the decision-maker, and the best legal route
• Confirm standing, time limits, and remedies sought
• Assemble evidence and expert support; send a clear pre-action letter
• Secure funding and address costs risk early
• Coordinate legal steps with a targeted advocacy plan
• Build a credible coalition and assign roles
• Keep communications accurate, respectful, and legally safe
• Ensure charity and election rules are met
• Prepare for interventions if not acting as a claimant
• Measure outcomes and plan post-judgment follow-up

Quick Reference