State Accountability for All: Why Should BME Organisations Do Strategic Litigation?

Many black and minority ethnic (BME) women’s violence against women and girls (VAWG) organisations are stretched for time and resources. Not only do the day-to-day services have to be provided, but yet another grant application needs to be submitted so that these services can survive. In this midst of this whirl of activity, it is often difficult to step back, consider and act upon what more can be done to help BME women and girls whose cases may seem hopeless. What, for instance, can be done to find safe accommodation for those without legal rights to access social security benefits and Council housing if their non-spousal visa states that they have no recourse to public funds, even if they have fled forced marriage or ‘honour-based’ violence (HBV)?

While many organisations would be angry and frustrated by a law that fails BME women and girls, few consider legal remedies to the problem, particularly if there is no obvious legal argument to be made or legal aid to support the action. Strategic litigation or casework which aims to push the boundaries of the existing law, or the way it is applied by the state, is something few BME women’s organisations have time and resources to pursue. Yet it is precisely this type of action which can trigger a quantum leap in improving the rights of BME women and girls by setting new legal precedent which assists both the individual, and a highly vulnerable and disadvantaged social group. Indeed, strategic litigation can be successful when campaigning alone has been met with refusal by the state to create wider reform in the face of injustice. Strategic litigation is therefore a vital tool in holding the state accountable for all women.

The specific benefits for BME women and girls of such action are highlighted in several cases brought by a few BME women’s organisations which undertake strategic litigation in addition to providing routine casework and campaigning or policy advocacy. For example, in the 2000s, I helped to change family law in a case of forced marriage while conducting casework advocacy for Southall Black Sisters (SBS). The case involved a young Asian woman who had been forced into marriage while visiting Pakistan. With our help, she obtained an annulment rather than a divorce from her husband, which had been normal practice in England and Wales in such situations. The woman said that this meant she was not regarded as a divorcee (which can be a cultural taboo), but as someone who had never given valid consent to the marriage. This outcome also meant that more BME women are encouraged to challenge the validity of forced marriage; and helped to deter abusive families from holding them hostage for fear of bringing shame and dishonour by obtaining a divorce.

Also remember, in some cases, organisations can act as interveners or interested third parties, which can help to support individual litigants, as witnessed by the current case of ‘Worboys’ where a number of women’s organisations, including SBS, are intervening to hold the police accountable for failing to protect women from rape and gendered violence.

However, as organisations cannot obtain legal aid, legal costs can prove to be a barrier, particularly if the organisations lose the case and are required to pay the costs of the opposing party. This is where campaigning is important as it can help raise donations, although the courts can grant a waiver. For instance, in 2002, I intervened with SBS as an interested third party involving the tragic deaths of an Asian woman, Nazia Bi, and her young daughter to demand that the Coroner hold an inquest to establish if they had died as a result of suicide or murder in a context of domestic violence and HBV. Although the case denied SBS permission for a judicial review, the courts nevertheless accepted that SBS had a standing with a right to bring such action as an interested third party. While SBS had raised some money through a public campaign, the courts ordered that no legal costs should be paid by SBS as it had acted in the public interest.

So how can BME women’s organisations pursue effective strategic litigation

1. Find the right case: not all cases are suitable for strategic litigation as some can establish ‘bad’ law if unsuccessful. Be guided by your passion and sense of injustice, but sound legal advice is needed before you launch into legal action.
2. Find the right lawyer: not all lawyers understand the needs of BME women and girls facing VAWG. Find a high quality lawyer with an understanding of intersectional or multiple discrimination, and who is willing to work with you to push the boundaries of the law in directions which seek to end race and gender discrimination. This often means lawyers have to be very imaginative and committed as they may have to work pro bono, at least at the beginning while they establish the basis for obtaining legal aid.
3. Find the money: not all cases would qualify for legal aid. Check if the service user would be entitled to legal aid. If you are pursuing a legal case as an organisation (as an interested third party), you would need to raise money for legal costs through donations, including crowd funding. Legal costs, however, can be high, particularly if you lose a case and you need to pay the legal costs of the opposing party (unless the court orders otherwise), even if your own lawyer/s are pro bono. So be very careful – check the strength of your case with lawyers and try to raise sufficient sums to cover all legal costs.
4. Find support for the case: not all cases are successful without a campaign behind them.  While some cases should not be publicised, ensure, where possible, that there is public support. This not only helps to raise donations for legal and campaign costs, but also raises the profile of the issues and adds pressure for legal and policy reform.

About Dr Hannana Siddiqui

Dr Hannana Siddiqui is a freelance policy and research consultant with over 30 years of experience on tackling violence against BME women and girls. She works for a number of organisations, including the leading BME women’s organisation, Southall Black Sisters (where she has worked for 30 years in various capacities, including as a casework advocate) and the Angelou Centre in Newcastle (where she helps to co-ordinate the Fatima Network, which involves 15 BME women’s organisations across the UK).

Update

In 2021, SafeLives made the decision to limit our use of the terms ‘BAME’ and ‘BME’. Instead, we use ‘Black, Asian and racially minoritised people’.

The term ‘Black, Asian and Minority Ethnic’ (BME or BAME) is commonly used in policy contexts, but it can reinforce the idea that certain groups automatically occupy a minority position. Drawing on critical analysis of this term by services led by and for marginalised groups, we refer to ‘Black, Asian and racially minoritised people’, to highlight the way in which these groups are constructed as ‘minorities’ through processes of marginalisation and exclusion.

SafeLives have consulted with stakeholders to ensure the term was as inclusive as possible, though we recognise that people will not always define themselves using this language we have used.

We fully recognise that Black, Asian and racially minoritised people are not a homogeneous group, and their experiences and identities will differ widely.