Modify an investigation process to deal with systemic issues National human rights institutions may adapt individual investigation processes to ensure that broader-based policy issues can be examined and addressed, including through class actions. Institutions that can accept complaints, for example, may use that process to address systemic issues. Individual cases can be analysed at an early stage to determine whether they suggest a broader problem. Example: School fees and the right to education. An NHRI may receive an individual complaint about school fees and the impact on poor families. However, this type of practice necessarily affects more than that one family. The NHRI might decide to seek broader recommendations that apply to all families and not just to the one complaint. If such school fees are universal, an investigation will show only what is already known. It would be preferable to make recommendations of a systemic nature directly to the appropriate authorities. Similarly, an individual case that refers to the direct application of a law or policy has no particular “facts” to discover in investigation. The investigation therefore becomes an analysis of the law or policy to determine whether it constitutes a violation of human rights. Alternatively, if an institution has this authority, it might decide to challenge the provision in court directly rather than investigate it in the sense presented in this chapter. Sometimes, an NHRI receives a series of complaints all relating to a similar issue. It may then decide to join them and deal with them together to ensure that remedies are broader than individual settlements. Some institutions routinely review data on the types of complaints received in order to identify patterns or trends. Some NHRIs have a process to review all complaints to determine up front whether the allegations involve systemic issues. These cases would then get priority, since they affect groups of individuals. Using class actions to deal with systemic issues A number of NHRIs use class actions, whereby an individual affected by a human rights violation is able to complain not only on his or her own behalf, but also on behalf of others who are similarly affected. This possibility of “class action” or representative complaints helps to ensure that widespread problems are not approached as isolated aberrations. However, if such cases are technically class action cases that will go before the courts, there are technical preliminary requirements for qualifying as a class action suit that must be observed. Where class actions are possible, strict guidelines are usually established to determine the suitability of an issue or complaint for this kind of resolution. An NHRI may, for example, require some or all of the following conditions to be fulfilled before a complaint is accepted as a class action: ■■ The complainant must be a member of the class affected or likely to be affected; ■■ The complainant must personally have been affected by the alleged violation; ■■ The class of persons affected or potentially affected is so numerous that it is impossible to deal with the matter simply by joining a number of specified individuals to the complaint; ■■ There are questions of law or fact common to the members of the class, and the claims of the complainant are typical of the claims of the class; ■■ Multiple complaints would be likely to produce inconsistent results; and ■■ The grounds for action appear to apply to the whole class, making it appropriate to grant remedies to the class as a whole. 80