“Can the development of strategic litigation by NGOs achieve stronger legal outcomes for women in Scotland?”
In 2018 a discussion paper which worked to identify the barriers to public interest litigation in Scotland and reflected on the ways in which they could be overcome was published. This paper was a product of much input by Scottish NGOs and legal experts, and reflected a dynamic moment where a shift in advocacy culture and methodology could become possible. Building on the project, my research seeks to understand what value strategic litigation in the form of third-party interventions could add to the Scottish feminist landscape, particularly in terms of materially improved outcomes for women through law.
This research will look at Scottish and UK legal cases in order to determine how – if it hadn’t been for standing and practical procedural issues – Engender may have been able to craft third party interventions with the aim of securing better legal outcomes for women which protect their rights, safety and access to resources. My focus will be on social security / ‘welfare’ cases, in response to the wealth of insights and expertise Engender as a feminist policy organisation has accumulated over their years of advocacy.
Strategic litigation, or Public interest litigation (PIL), is the practice of taking a case to court, or intervening in a court case, to advance a widely shared interest. The focus of this research will be on the latter form of PIL, third party intervention, because it is this avenue which best responds to the gaps created by the reactive and adversarial nature of the court process. This is because, where broader issues of public interest are involved, parties are not always able to bring to light all essential issues, relevant evidence, and legal arguments pertaining to the case. It is here that submissions could fill the gaps and help judges make fairer and more sustainable judgements, and ultimately make better law. These benefits are well documented across North America, and have been recognised both in Northern Ireland, and England, as a valuable resource with which to improve cases which pertain to public interest.
This is exemplified by R v Smith  A.C 146, where Justice for Women were given permission to intervene through a written submission. This provided an opportunity for the House of Lords to hear a different voice that made them aware of the experience of women who had experienced domestic abuse within different communities. The resulting judgement accepted many arguments put forward in the submission, which in turn impacted a ruling on the provocation defence which would have otherwise not considered the experiences of women.
There is still much debate regarding the ‘added value’ of strategic litigation. In some ways third party interventions by feminist organisations can become a powerful tool with which to respond to the ‘epistemic injustice’ that is replicated in court cases where women’s voices are systematically silenced or marginalised. This is particularly prominent in sexual assault cases, such as Mutebi v HMA  SCCR 52 which highlights the tenacious hold that problematic social conceptions of sex and consent have, and the implications thereof on the legal outcomes for women.
However, Audre Lorde’s concerns about dismantling the master’s house using only the master’s tools must be taken seriously when considering such approaches. Furthermore, the disadvantages of legal engagement as a feminist organisation must be recognised, where risks of essentialising women’s experiences through grand theories loom strongly in the minds of feminist scholars. However, law remains an important site of struggle precisely because of its transformative power. Additionally, cases such as R v A (no. 2) highlight the need for feminist engagement with the law. In this case, despite a third-party intervention, rape shield laws, which were a product of years of advocacy work in the policy sphere, were undermined by the ruling of judges. This simultaneously emphasises the critical nature of law as a feminist project and recognises its limitations.
Ultimately, the core goal of this project is to take account of both the risk and the promise of third-party interventions, and in doing so identify gaps in legal arguments where a feminist intervention by Engender could have led to a better legal outcome for women.
In order to recognise my positionality within this project let me tell you a little about myself. I am a LLM Human Rights Law student at the University of Edinburgh, and my previous research has centred on the use of women’s voices during transitional moments in ways which both essentialise and co-opt their experience of war to build a ‘healed’ nation. As a South African, much of this previous research was focused on the Truth and Reconciliation Commission following the end of apartheid, and how it shaped modern South Africa.
This project with Engender represents an extension of this interest in the material effects of broader movements on women’s lives, however it has also allowed me to shift the locus of engagement from the past to the present and explore paths forward for feminist advocacy. This project excites me precisely because it is able to bridge the gap between abstracted legal theory and more tangible dimensions of law as a tool with which to pursue women’s rights, and welfare.
Metcalfe E, To assist the court : third party interventions in the UK: A JUSTICE report (London: Justice 2009)
Doherty F, 'Third Party Interventions in Public Interest Litigation' (the PILS Project in NI)
McCorkindale C, 'Public Interest Litigants in the Court of Session' (2015) 19 Edinburgh Law Review 248
Samuels H, 'Feminist Activism, Third Party Interventions and the Courts' (2005) 13 Feminist Legal Studies 15
Image source: katesheets on Flickr.
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