Stronger Foundations Blog: Strategic litigation - a risk worth taking?

22 May 2019

ACF’s Stronger Foundations initiative aims to open challenging discussions about foundation practice and identify what it means to be a ‘stronger’ foundation. As part of the project, we will be publishing a series of provocations offering personal views on the initiative’s themes.

This contribution comes from Max Rutherford, ACF's Head of Policy. Share your thoughts on Twitter using #StrongerFoundations.

A recent meeting of ACF’s Stronger Foundations Funding Practices working group debated whether grants are the future or the past. To inform this, Amy Solder from Nesta highlighted 17 funding tools found in the foundation toolbox, most of which are rarely used. From match-trading to prize funds, foundations have a veritable smorgasbord to choose from, but most often opt for grants on which so much of civil society depends.

Although the group concluded that grants will always remain at the heart of the funding landscape, alternatives are likely to become more commonplace as foundations seek to address social problems in a context of unprecedented demand on their resources.

Last week, ACF’s Impact and Learning working group held a session examining the merits and risks to foundations of supporting strategic litigation, another potential funding tool. The group was hosted by Just for Kids Law, a charity established in 2006, and a beacon of excellent practice in defending children’s rights.

This was the fifth session of this group, which each time has explored a case study of how foundations seek to achieve impact in pursuit of their own missions. The group was joined by colleagues from the Baring Foundation, which has an extensive track record and expertise in supporting both strategic litigation action and research on its impact, notably in partnership with Dr Lisa Vanhala, Associate Professor in Human Rights at UCL.

Strategic litigation can take many forms, and have many aims — for example, it may seek to raise the profile of an issue with little prospect of a change to the law; it may seek to redress bad law that directly contravenes existing rights; or it might seek to clarify or update old law for application in a modern context.

It is rarely a tool used in isolation, and is most effective in combination with other activities such as advocacy, communications and policy work. There are therefore many ways that foundations support efforts to use the law to affect change — from funding or underwriting legal costs, supporting a surrounding campaign, or core funding charities with specialist expertise.

Strategic litigation can achieve impact at scale, redress gross unfairness, and drag reluctant governments or policy-makers into the 21st century. Increasingly, it may become a means to hold the line on progress already made that has recently come under threat.

Legal action is arguably one of the oldest forms of charitable activity, but in recent years it has become part of the civil society zeitgeist — perhaps, it was suggested, because of more limited opportunities to engage with a parliament and government dominated by Brexit. With the implementation of major reform programmes such as universal credit, and rafts of legislation forthcoming as the UK leaves the EU, many charities are mainstreaming strategic litigation as part of their campaigning armoury, increasing both the prominence of this approach and the opportunities for new participants (including foundations) to get involved.

Foundations have a long history of supporting efforts of these kinds. Recent cases that have had foundation backing include successes on equal civil partnerships, criminal records reform, universal credit, and access to legal aid.

In all these cases, none has been a quick win, some have been fraught with uncertainty, and many have been high risk — both reputationally and financially. For independent, financially secure, charitable foundations, what could be better?

Max Rutherford
head of policy
ACF

Views in this series are the personal views of the author, and do not necessarily reflect the views of the working group, ACF, or its wider membership. Find out more about Stronger Foundations.