Court action

Commission powers

The Commission has the following powers relating to the courts:

to provide legal assistance to victims of discrimination
to intervene in or institute legal proceedings, including judicial review, and
to make applications to court for injunctions or, in Scotland, interdicts.

These powers can be exercised across a range of issues, including employment, access to goods, facilities and services, housing, transport and education.

Legal assistance

The Commission has the power to provide legal assistance to victims of discrimination. This can include legal representation and can extend to discrimination cases with a human rights element. We cannot help people in cases that only raise human rights issues, however.

Our strategic litigation policy lists the factors we consider when deciding whether to provide legal assistance. In simple terms, we pursue cases that are likely to have strategic impact. For example, cases where:

there is an opportunity to clarify or strengthen the law or to extend or test compliance
we can secure better understanding of rights and obligations
the nature, scale or severity of the underlying detriment is substantial, or
we see an opportunity to improve compliance with the Equality Act 2010 by a major organisation or sector.

When deciding whether to use our power to provide legal assistance, we consider factors such as:

the strength of the discrimination claim
whether or not the case would proceed without our assistance and the implications of a failure to provide assistance, and
whether an intervention might be more appropriate.

Section 28 of the Equality Act 2006 gives further detail.

If you are an individual looking for expert information, advice and support on discrimination and human rights issues and the applicable law, you may want to contact the Equality Advisory and Support Service. The EASS is a government funded helpline which is independent of the Commission. However, it works with the Commission by referring cases it thinks might be strategic and sharing information to inform our wider work on equality and human rights. Contact EASS

Interventions

The Commission has the power to intervene in court proceedings in human rights and equality cases initiated by others.

We have used interventions frequently and effectively both domestically and in the European courts. More often than not, we intervene in appeal litigation in the higher courts where the case is focused on legal issues.

An intervention allows us to make expert submissions to help the court. We may, for example, provide an expert analysis of one or more of the issues, provide input on international legal aspects or provide additional evidence.

Our strategic litigation policy lists the factors we consider when deciding whether to exercise our power to intervene. As with decisions about providing legal assistance, we look for cases that will have strategic impact (above).

In addition, when deciding whether to use our power to intervene, we consider factors such as:

the extent to which the Commission can act as a neutral legal or policy expert
the extent to which the Commission’s submissions would add evidence or information to the court/tribunal beyond that provided by any of the parties to the case, and
whether or not the clarification of the relevant point of law is likely to lead to a significant change beyond that particular case.

Section 30 of the Equality Act 2006 gives further detail.

Applications to court

If we think an employer, a service provider or a public authority is likely to commit an act that is prohibited by the Equality Act 2010, we may apply to the county or sheriff court for an injunction or interdict restraining the person from committing the act.

We may also apply to the county or sheriff court for an order if we think that a party to an agreement with the Commission under section 23 Equality Act 2006 has failed to comply, or is likely not to comply, with an undertaking under the agreement.

Section 24 of the Equality Act 2006 gives further detail.

Judicial review

If we think that a public body has taken a decision or acted (or failed to act) in a way that breaches the Equality Act 2010 or the Human Rights Act, we can issue proceedings for judicial review.

The court can make a declaration as to whether the decision, policy, action or omission is lawful. It can also quash decisions or issue an injunction or, in Scotland, an interdict.

The Commission may apply for a judicial review on any grounds, so long as the subject matter of the claim relates to a statutory function of the Commission. In human rights issues the Commission does not need to be a “victim” affected by the alleged violation – a requirement that otherwise applies to those wishing to bring judicial review proceedings under the Human Rights Act.

Examples of situations where the Commission, rather than a victim, might bring a claim include:

If the government announces that it is going to introduce a change in the law which the Commission believes will lead to violations of people’s human rights, the Commission can threaten judicial review before the legislation is passed or within 3 months of enactment. For example, when the government proposed extending the time for the detention of terrorist suspects to 42 days without charge, the Commission threatened judicial review and the proposal was dropped.
where the subject matter of the case is one where the Commission is best placed to bring the claim because of its history, statutory duties or particular expertise
where there are multiple 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, and
where the actual or potential victims do not have access to lawyers, or cannot fund a claim themselves.