The ombudsman uses swift, inexpensive and informal procedures and is easily accessible. As such, she may offer a practical alternative to the ‘judicial’ avenue.
She is independent so as to guarantee impartiality. Her findings and decisions are based on examination and analysis of the facts and law.
She has the power to maintain the confidentiality of complainants where needed.
She achieves redress for the individual, but where they identify systemic failings, she has the power to recommend changes in the work of public authorities, both individually and collectively.
She can generally undertake a single investigation into multiple complaints about the same topic, thus avoiding duplication and excessive costs.
Her main weapons to secure action are reasoned persuasion and publicity. Generally, she can urge public authorities to act, but can also use the naming-and-shaming approach. In short, the ombudsman is a person of prestige and influence who operates with objectivity, competence, efficiency and fairness.
Ombudsman institutions play an essential role in guaranteeing the right to access justice and fulfilling the promise of a transparent and accountable democracy.
STORY – Roma Rights and the EU Ombudsman
The Roma are one of Europe’s oldest and largest ethnic minorities, and also one of the most persecuted. Between 10 and 12 million Roma people are thought to live in Europe, with settlements in each member state. In the past, they were associated with a travelling lifestyle, but this is no longer the case for most Roma. Nonetheless they struggle to access the same quality of healthcare, education, jobs and housing that other Europeans enjoy. A United Nations Human Development report about Roma in Bulgaria, the Czech Republic, Hungary, Romania and Slovakia found that ‘by such measures as literacy, infant mortality and basic nutrition, most of these countries’ 4 to 5 million Roma endure conditions closer to sub-Saharan Africa than Europe’.
In Italy, the Roma have endured years of discrimination. Nils Muižnieks, the Commissioner of Human Rights for the Council of Europe, wrote an open letter in 2015 which noted that Italian authorities continued to forcibly evict Roma from their homes, and compel them to live in segregated camps.
In 2012, the EU Commission launched a pilot programme investigating the discriminatory housing practices in Italy. At the time, it seemed like the first step towards a rapid improvement in the way Roma were treated in Italy. However, the public still have no idea what is happening in those discussions between the Commission and Italy. If the Commission decides that Italy’s violations of EU law warrant formal legal sanction, they can issue a letter of formal notice, which would initiate an infringement proceeding against Italy. However, since the entire process is shrouded in secrecy there is no indication of whether they have done so.
Amnesty International tried to shed light on the proceedings by requesting documentation of the discussions between Italy and the Commission under EU FOIA (Regulation 1049/2001). Normally, in order for an EU body to deny access to a document under FOIA, they need to explain how each document concerns an area of vital EU interest, and how disclosing the document to the public would harm that interest. However, the Court of Justice of the European Union has ruled that when the Commission is engaged in an infringement process, it can be presumed that the document will harm EU interests. This gives the Commission the option to deny transparency, without giving any explanation at all. In the event, it did exactly that, throwing up an impregnable wall of secrecy. As a result, neither civil society nor the Roma themselves can know for sure what is being discussed by Italy and the Commission.
The Commission’s position is that secrecy is needed to preserve the negotiations. Yet the infringement process can go on for years.
In light of this, my students and I teamed up with Amnesty International and prepared:
a lobbying plan analysing the case law of the CJEU and proposing several strategies that Amnesty European Institutions Office (EIO) could adopt to pursue the quest for transparency;
a complaint to the ombudsman alleging maladministration on the part of the Commission in refusing access to documents to Amnesty EIO.
The complaint to the ombudsman urged the Commission to review its documents individually. If a document genuinely cannot be released because it would put the negotiations at risk, and thus damage Roma rights, the Commission should say so. What is inappropriate is for it to say nothing, leaving millions of Roma unsure of whether the EU is going to protect their rights.
As a result of our complaint, the EU ombudsman opened an investigation.
The Judicial Avenue
Courts enjoy the power to review the way in which a given policy – or administrative decision – was made, and, to a certain extent, to review its merits. Should you fail in your efforts to oppose or change a given policy or decision, you can challenge it in the courts. Although the judicial avenue belongs to the broad citizen lobbying toolbox, litigation is not about lobbying in its purest sense. It is more about forcing than influencing a change via the legal system.
Litigation is generally considered a remedy of last resort, to be handled with care. Like the administrative avenue, it imposes time limits (beyond them your action is no longer valid) and requires specified forms. It does, however, demand significantly more resources and skills than the administrative avenue. Going to court is expensive, as it requires lawyers (although they may help you pro bono – see page 222), and is more time-consuming than administrative action.
All that said, there might be good reasons for a citizen lobbyist to go to court. Sometimes petitions, complaints and meetings are not enough. Court cases can be a powerful way to draw attention to your issue and, by revealing the failings of decision-makers, to bring about change through the establishment of a legal precedent. They can also halt the progress of the policy or administrative process, and that may suit your purposes. Occasionally, taking the judicial route is a strategic choice even when you have little chance of winning (hence the term ‘strategic litigation’).
For a citizen lobbyist, winning a court case is a big deal. You may expose or even stop an injustice, highlight the wrongdoing of decision-makers, or win compensation. Yet litigation rarely gives you the means to achieve your ultimate goal as a citizen lobbyist. Rather, it is one of the tools – if one of the most powerful ones – in the process of bringing about change. Strategic litigation is generally used in combination with other avenues.
So, when would the judicial avenue be a strategic choice?
Unlike conventional litigation, strategic litigation is not solely in the applicant’s interest, but pursues a broader social issue. Since winning a court case means setting a legal precedent, this outcome will benefit many other individuals who find themselves in the same situation. In other words, strategic litigation is set to affect your issue in ways that go well beyond the outcome of the dispute. This explains why you may decide to go down the judicial avenue even when your chances of success are small or non-existent. In other words, you only go ‘judicial’ when the strategic advantage you may obtain outweighs the costs. Your likely opponents will know this too. Companies, but also public authorities, typically favour out-of-court settlements rather than court rulings. They prefer to pay considerable amounts of money to you rather than publicly face your claims, since a court case could be highly damaging for them.
The advantages of strategic litigation may consist of:
drawing public attention to your issue;
bringing injustice to light;
stopping an injustice;
forcing an advantageous delay;
embarrassing the decision-makers;
prompting and/or shaping the legislative process to come;
bringing about a long-lasting social change.
However, going to court to advance your lobbying campaign might be a bit of a stretch. The purpose of courts is to solve disputes, not to address wider policy issues. That’s the job of the elected representatives and their a
dministrative offices.
This explains why you are likely to encounter various obstacles when going down the judicial path. The major impediment are the rules on standing – i.e. your ability to bring a case before a given court. Not everyone can go to court. It requires not only a strategic analysis but also a reality check, in terms of the time and effort necessary to succeed. Supporting someone else’s legal claim in exchange for a share of the potential damages has become big business. The people who fund your legal claim can sometimes make a profit (depending on your country) by taking a share in the proceeds of successful claims.
STORY – Max Schrems Takes on Facebook
Take the example of Max Schrems, which we first encountered in the Introduction. Max, an Austrian citizen, successfully used the court system to challenge Facebook’s data protection regime.
In 2011 Max, then a law student, spent an exchange semester at Santa Clara University in California. There, he attended a presentation on data protection given by Ed Palmieri, Facebook’s privacy lawyer, and was so astonished by what he heard that he wrote an academic assignment about it. In August of the same year, back in Europe and convinced that Facebook was acting against EU data protection law, Max decided to file a complaint against Facebook Ireland Ltd – Facebook’s European headquarters – with the Irish Office of the Data Protection Commissioner.
The complaint was aimed at stopping Facebook from transferring data from Ireland to the US. The case ended up before the European Court of Justice. Max was found to have been right from the start, and the ECJ ruled in line with his arguments in October 2015. As a result, Max resubmitted his original complaint against Facebook with the Irish Data Protection Commissioner. He also filed a similar complaint to the Hamburg and Belgian Data Protection Authorities. These were designed to enforce the ECJ judgement. Before that ruling, back in August 2014, Max filed another lawsuit against Facebook at a local Viennese court, and encouraged other Facebook users to join his case for free, generating a ‘class action’-style suit and gathering 60,000+ supporters via his webpage. This case is now pending before the Austrian Supreme Court.
Throughout the entire process, Max was able to rely on the financial support of the German litigation funder ROLAND ProzessFinanz AG; Max’s well-founded arguments convinced them to support him. Max is now finishing a PhD on data protection.
STORY – Irish Language
An Irish-medium language school (that is, a school in which education is provided in the Irish language) in Belfast successfully challenged the Department of Education’s failure to put adequate transport arrangements in place. The case was taken forward by Colma McKee, Vice Chairperson of the school’s board. He claimed that the Department of Education for Northern Ireland (DENI) had breached its statutory duty to encourage and facilitate education in the Irish language, under Article 89 of the Education (Northern Ireland) Order 1998, by failing to provide adequate transport to pupils in rural areas. The failure meant pupils and would-be pupils of Coláiste Feirste who lived outside Belfast and wished to be taught in the Irish language found it extremely difficult to reach the school.
The High Court found in favour of McKee and concluded that the statutory duty to promote the Irish language was not ‘merely aspirational’ but rather ‘has and is intended to have practical consequences and legislative significance’. It further ruled that the Department of Education ‘… failed to give proper weight and consideration to its obligation under Art 89 to encourage and facilitate the development of Irish language medium education’. The Court also compelled DENI to give further consideration to the transport issue in the post-primary Irish-medium education sector.
TIP 12 – File an Amicus Curiae Brief
Starting a court case is an audacious move. A way to benefit from the judicial route without necessarily having to lead it is to join a pending dispute on your issue. Given you will have expertise in the issue, it would be a missed opportunity not to play a role in the dispute. One way to help influence its outcome is to file an amicus curiae (literally, friend of the court) brief. An amicus curiae is someone who, although not a party to a case and unsolicited by any of the parties involved, assists the court and offers information with a bearing on the case. Since not all courts accept unsolicited briefs by individuals who are not party to a dispute, you may be able to influence the court simply by circulating your brief – posting it online, as well as sending it to the judges and clerks who are working on the case. Having worked for the highest European court, I know that when outsiders present good arguments they will be taken into account regardless of how they reach the court.
To find out more about how you can fund your litigation, see Step 6: Who Pays.
Public Campaigning
Public campaigning is another avenue for your lobbying. Essentially, it is about building public support and momentum for your cause, and it can have a huge impact on the effectiveness and reach of your campaign. While all lobbyists share the same aim – to put pressure on decision-makers – campaigning pursues this objective without necessarily having to tackle demanding and formal legislative, administrative or judicial processes. Campaigning is by definition an informal way of operating with no need of official approval.
Increasingly, it is used in combination with other activities, such as legislative (e.g. campaigning to support or oppose a legislative proposal) or administrative (e.g. to back a formal petition calling for the closure of a polluting plant) action. Used in conjunction with another avenue, public campaigning amplifies and publicises the issue quickly and more efficiently. Who would ever find out about your official petition without a well-designed campaign? Which decision-maker would care about your issue if no one had heard of it? People don’t necessarily want to know how you are going to tackle something (e.g. through a new policy or by closing a plant). What they care about is that the change happens.
Even when deployed by itself, campaigning sometimes prepares the ground for further courses of action. After you’ve mobilised people in a given cause, you may need – if decision-makers don’t respond – to channel your support into follow-up actions. This often means pursuing formal avenues, the most privileged of which is petitioning.
A petition is often the start of a long journey. In the UK, half a million citizens signed a petition against a proposal that would have led to the selling-off of England’s national forests. A British charity dedicated to political activism, 38 Degrees, ran a poll that revealed 84 per cent of the British public thought forests should remain in public hands. They went on to raise a further £60,000 to put advertisements in national newspapers and apply pressure to an independent panel. This particular journey lasted 27 months, and forced the government to make a U-turn on the issue.31
On top of its immediate policy aims, public campaigning also pursues longer-term objectives aimed at changing perceptions. You may want to challenge a stereotype, or make a particular practice socially acceptable. While virtually all the avenues I’ve discussed can change social norms, by altering how we perceive a given behaviour (such as alcohol consumption, domestic violence or police conduct), this aim is generally better achieved through public campaigning. You can challenge a social norm by proving it wrong, or you can promote it by normalising it. Today, social media campaigns often seek to alter – typically counter – standard media representations as a way of challenging social norms. For instance, if mainstream media continue to portray women as sexual objects in order to sell a product or service, social media users may counter that narrative by turning it on its head.
Let’s consider a public campaign that challenged the ‘rape culture’ that pervades American sporting culture. Samantha Stendal, a student from the University of Oregon, was angry at the way mainstream media covered a rape trial in which two Ohioan high school American football stars were convicted of raping a sixteen-year old. They had met the young woman at a party when she was drunk. Stendal felt the media helped to normalise their behaviour by focusing on how the co
nvictions would affect the students’ sports careers rather than on how the rape affected the girl. She decided to take action by recording a video – together with some friends – aimed at showing how a ‘real man’ would behave when meeting a woman who has been drinking. The video rapidly went viral and was taken up by mainstream media. As a result, US colleges are now reviewing their regulatory and cultural responses to this intolerable behaviour.
Individuals who find themselves in terrifying circumstances may also campaign by relying on the collection of unofficial signatures to draw the attention of public authorities to their plight. Although their motive is personal, they may lead public authorities to adopt a decision that benefits others in a similar situation. In 2012, Josh, an eleven-year-old with severe autism, was moved from a hospital in Cornwall where his parents live, to another one hundreds of miles away in Birmingham. His parents had been making the trips there for two years every weekend to see him, as they had been told by the NHS that no institution was capable of taking care of Josh closer to their home.
On the advice of a charity, his father Wills, who usually ‘doesn’t like to rock the boat’, decided to start a petition on Change.org. It attracted 10,000 signatures in a week and caught the attention of NHS executives and officials. Wills met Norman Lamb, a former care minister, and then the CEO of the NHS commissioning group in charge of placements, who appointed someone to communicate with the family. They were eventually able to place Josh in day care not far from his home.
Thanks to his petition, Wills forced different bodies that would not otherwise have cooperated to grasp the urgency of the situation. It shows how quickly a petition can concentrate minds and make them think about new scenarios.
Lobbying for Change Page 16