This chapter turns from the legal to the sociolegal to offer a different lens through which to consider the phenomenon of climate change litigation. By drawing on theoretical approaches in the study of legal mobilization, this chapter sheds light on some of the social and political dynamics of climate change litigation. I suggest that situating climate change litigation in its social and political context is useful in gaining a more holistic understanding of what is at stake when individuals and groups turn to the courts as part of their efforts to address the climate crisis. Drawing on the contributions to this volume, this chapter (1) shows how legal mobilization theory can be helpful to practitioners and scholars interested in understanding, explaining, and assessing climate change litigation in practice, and (2) highlights some of the ways in which studying climate change litigation can shape our conceptual and empirical understandings of processes of legal mobilization more generally.

INTRODUCTION

Achieving constitutional recognition of disability rights was an enormous legal and political victory for disability activists in Canada. Rights on paper, however, are simply the first step on a long journey toward true equality on the ground. As shown in Chapter 2, disability advocacy organizations in Canada have been among those that have seized the potential of the equality rights contained within the Charter, and they have relied, to a large extent, on the Supreme Court and lower courts and tribunals to do so. Organizations within the movement have influenced emerging notions of human rights and equality, and they have legally mobilized to advance their own conceptions of the appropriate paradigms of disability, discrimination, and accommodation of difference. Here I address the following questions: What has the Charter provided to Canadians with disabilities in terms of equality? How has the Supreme Court of Canada (SCC) interpreted what equality means? Have the aspirations been met of disability rights activists who campaigned so vigorously for the inclusion of disability as a protected ground in Section 15 of the Charter?

The fact that the Court has the power to shape understandings of constitutional and legislative rights and protections is beyond doubt. By tracing trends in case law on equality and disability issues, we can understand why it is important from a policy perspective that groups have turned to the courts.

INTRODUCTION

This chapter paints a picture of the disability community in the United Kingdom and explains how disability organizations have approached the opportunity to undertake legal mobilization as part of their strategies to influence public policy. I provide a brief overview of the history of three main types of organizations that have operated in the sphere of disability policy from the 1970s to 2005: the grassroots organizations of disabled persons; the traditional disability charities; and a quasi-nongovernmental organization, the Disability Rights Commission (DRC). I explore the evolving attitudes within and across organizations toward social model understandings of disability and also their attitudes toward, and (where relevant) their usage of, strategic litigation as a policy-influencing tool. The analysis in this chapter demonstrates that there is significant variation, both among and within, the three types of organizations in the disability sector in the UK regarding the use of (and organizational values on the use of) strategic litigation. This is in contrast to Canada, where the majority of the main disability organizations have turned to the courts. Included in the sample of organizations chosen there are cases of important disability organizations that have not adopted the use of litigation. This allows for the exploration of some “negative cases”: groups that have not used (or in some cases, even considered using) legal action to pursue policy goals.

INTRODUCTION

In a country that has been traditionally averse to the concept of enumerated rights, there has been a remarkable shift over the last fifteen years toward a rights-based framework in disability law and policy in Great Britain. Since 1995, four related acts providing legal protections against discrimination based on disability have been adopted by the UK parliament; one of these implements supranational European Union (EU) legislation. In addition, the European Convention on Human Rights (ECHR), signed by the UK in 1951, was incorporated into domestic law with the passing of the Human Rights Act (HRA) 1998, also offering protection to persons with disabilities. These pieces of legislation have, as this chapter demonstrates, served as the basis for an expanding role of the courts in defining, clarifying, and expanding on policy relevant to persons with disabilities. As in Canada, disability activists have turned to the courts to advance their own conceptions of disability equality and human rights. In contrast to the Canadian case where many organizations have become involved in strategic litigation efforts, in the UK it was one institution – the publicly funded Disability Rights Commission (DRC) – that (until it closed its doors in 2007) was the key organizational driver of legal mobilization on disability issues. This chapter argues that, due largely to the prompting by the DRC through its proactive litigation strategy, the UK courts have played a seminal role in the way the rights of persons with disabilities are interpreted and implemented.

INTRODUCTION

On November 3, 1980, members of the Coalition of Provincial Organizations of the Handicapped (COPOH) held a protest on Parliament Hill in Ottawa to assert their demands for recognition in a proposed new constitutional Charter of Rights and Freedoms. The protest was the first time that people with a range of disabilities gathered together from across Canada to loudly and publicly claim the right to disability rights. The proposed Charter contained a section explicitly guaranteeing equality rights on some grounds, such as sex and race, but did not accord such protection to the rights of Canadians with disabilities. Previous calls by activists with disabilities to gain a voice in the constitutional process had failed, and the activists' frustration culminated in the demonstration. Yvonne Peters, a long-time activist and human rights lawyer who was both present at the protest and active in the Charter lobby effort, writes, “People with disabilities were just beginning to experience the promise of rights, and we were resolved not to let the architects of the Charter diminish or undermine this potential by ignoring our claim to legally recognized equality.” In the end, disability as an enumerated ground was added to the list of grounds protected by the proposed Charter at the eleventh hour in the Constitutional negotiations after a relentless lobbying effort on the part of these activists and their allies. As a result, Canadians with disabilities can now call on the promise of equality contained within the Charter to combat discrimination, exclusion, and marginalization.

THROUGH THE COURTROOM DOORS

In November 1979, Canadians with disabilities met in Ottawa to lobby the federal government on the issue of accessible transport, which, they argued, was crucial to achieving equality and social inclusion. Paradoxically, many activists, who had traveled from across Canada, encountered numerous barriers en route to Ottawa because of the difficulty of finding suitable modes of transport. Some attendees resorted to traveling in freight trains because their personal wheelchairs could not be accommodated in the passenger service cars. The struggle did not stop there. Upon their arrival in Ottawa, they discovered that the inaccessibility of the House of Commons made it impossible for some advocates to carry out meetings with Members of Parliament (MPs). In the late 1970s, such experiences of segregation were common for persons with disabilities. However, the incident was not all bad for the activists meeting in Ottawa; they effectively harnessed their stories to garner media support for their campaign and to stir debate within the political establishment. The government could no longer ignore the voice of Canadians with disabilities.

Almost thirty years later, the Supreme Court of Canada delivered its judgment in Council of Canadians with Disabilities v. VIA Rail Canada Inc., in favor of the Council of Canadians with Disabilities (CCD). At the heart of this case was the decision made by VIA Rail in late 2000 to purchase 139 rail cars (“Renaissance cars”) at a significant discount.

INTRODUCTION

The sociolegal implications of disability have changed enormously. In the late 1970s, disability rights were not only nonexistent, they were largely inconceivable. Policy makers and even the majority of people with disabilities themselves unquestioningly accepted that pity, charity, and paternalism, rather than rights provisions, were the most appropriate responses to the problems of poverty and social exclusion associated with disability. Thirty years later, the legal status of people with disabilities in Canada and the United Kingdom has been radically altered: the concept of disability is now considered as much the domain of citizenship and inclusion policy as welfare policy, and equality provisions are now constitutionally and statutorily entrenched.

The “rights revolution” in the realm of disability has been influenced by, and in turn has influenced, a significant change in the social construction of disability among crucial constituencies: specifically, a change from a medicalized, individual model of disability to a sociocontextual model. At the crux of the social model is the notion that “a disability is then not something that is just wrong with a person, but rather it is a site of difference that exposes hegemony and injustice in the normal workings of the world. The problem is the stairs, not the legs of the person who uses a wheelchair to get around.” This new understanding was developed and diffused by activists and disability studies academics to challenge the underpinnings of existing disability paradigms focused on rehabilitation and medicalized notions of the individual.