The Strategic Litigation Toolkit
The Children and Young People’s Commissioner Scotland has developed a new guide explaining how we can use our legal powers.
The Strategic Litigation Toolkit – established with help from our Young Advisers Ibukun, Lewis, and Sophie – defines the Commissioner’s powers, sets out how we involve children and young people in strategic litigation, and shows how we choose the legal cases to become involved in.
What is strategic litigation?
Strategic litigation is legal cases that try to effect legal or social change so children and young people can enjoy all their rights. For example, a court’s decision can establish a point of law leading to a change in a policy or practice affecting children’s lives. Strategic litigation is an essential way to hold those in power to account and help ensure an effective remedy for children and young people whose rights are breached. It plays an important role in delivering change to law, policy and practice and building a culture of human rights.
We’ve been working on strategic litigation since 2017. We can’t yet start court cases but we can ask for permission from the court to make formal submissions to help them make decisions on existing cases about children’s rights, or we can provide information to a party in a case which can then be referred to.
How is this work changing?
Scotland is going to incorporate the United Nations Convention on the Rights of the Child (UNCRC) into Scots law. The legislation will give the Commissioner more powers to get involved in legal cases, including starting cases of our own, so our work on strategic litigation will increase.
What does the toolkit do?
The office worked with experts – at Advancing Child Rights Strategic Litigation, University of Nottingham Human Rights Law Centre, Impact Law for Social Justice, and Economic and Social Research Council – to create the toolkit.
It helps prepare children and young people who work with the office on legal cases, understand what they can expect from us. It also explains how the office decides what cases to work on. This is important as it makes sure our decisions are transparent and makes us accountable for these decisions.
Young Adviser Sophie said: “The office has come up with a guide to what strategic litigation means in their work to help everyone understand it better. You’ll be able to see clearly the tools the team use, and what questions they ask themselves to help make difficult decisions about which cases they can be involved in.”
Young Adviser Lewis added: “It’s an important part of how they should be answerable about the work they do to promote and protect our rights.”
What happens now?
The Toolkit has been laid before the Scottish Parliament.
Commissioner Bruce Adamson said: “Over recent years we have been working with the global Advancing Children’s Rights in Strategic Litigation Project to develop good practice internationally.
“I’m delighted that we have been able to bring that global expertise to Scotland to develop our Strategic Litigation Toolkit. It is a powerful tool to promote and safeguard children’s rights.
“Strategic litigation is already a major part of our work and it will become even more so following UNCRC incorporation in Scotland. The toolkit strengthens our ability to undertake this work and ensures that we are effective, accountable, transparent and that our decisions are clear and fair.”