Is it time to challenge your lawyerly assumptions?
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Marc Bloomfield
Many of us came to the law from a desire to use our skills to help people who are disadvantaged in some way and because we know that the legal process works as a check against unlawful decision-making. Standing up for the vulnerable and speaking truth to power takes dedication, focus and a good grasp of how the law works. Without undermining our good intentions or earnest hard work, there are a couple of interesting underlying assumptions that I think are deserving of a good prod or, at least, a serious mull.
How do we know if ‘the law’ is the best way to challenge unlawfulness?
How do our clients know when using the law is the best way to challenge the unlawfulness or unfairness that they face? What is the evidence base for using the law?
Law is an important safeguard to protect us all, particularly the most vulnerable. But how do our clients know when using the law is the best way to challenge the unlawfulness or unfairness that they face? What is the evidence base for using the law? When thinking about whether it is part of the right solution, clients need to give careful consideration to the wider context and the possible alternatives, while bearing in mind the lack of past evaluation of the long-term impact of using the law.
Through working with UCL academics Professor Lisa Vanhala and Dr Jacqui Kinghan over the past two years,1Public Law Project’s Access to Judicial Review focus area work benefits from a strategic partnership between Public Law Project and funder, The LankellyChase Foundation. Professor Vanhala and Dr Kinghan are our learning partners in this work, helping us to evaluate and share understanding of how public law can help effect systemic change. More information about this work and links to all our publications, including a detailed literature review, can be found on our website. we’ve found that there is little consensus on any of this in academic research and literature. Most of the research comes from the US and quite a chunk of it is seriously pessimistic about using the law. It finds that, overall, the law is biased towards the status quo and really only reinforces social hierarchies. My favourite quotation for self-assured lawyers is from Stuart Scheingold: ‘Legal frames of reference tunnel the vision of both activists and analysts leading to an oversimplified approach to a complex social process – an approach that grossly exaggerates the role that lawyers and litigation can play in a strategy for change.’2Stuart A Scheingold, The politics of rights: lawyers, public policy, and political change, 2nd edn, University of Michigan Press, 2004, page 5.
Research from the past two decades is more positive, and looks at the subtle and nuanced ways in which the law impacts social change. Drawing on the work of the scholar Charles Epp we know:
1.Litigation is a political tool, that when used strategically, can stimulate meaningful change and complement other political efforts.
2.Whether litigation ‘works’ or not must be judged in relation to available alternatives.
3.In order to evaluate the social change potential of litigation in a given circumstance, it is necessary to examine the conditions – political, economic, cultural, and organisational – within which a lawsuit operates (Professor Lisa Vanhala and Dr Jacqui Kinghan, Literature review on the use and impact of litigation, Public Law Project (PLP), April 2018, page 14).
The second question queries the usefulness of that competitive streak many of us will have (whether we like to admit it or not). While it got many of us through law school, and the long hours that litigation often involves, does it hold us back from being better lawyers?
Is taking part more important than winning?
Having identified the absence of UK-focused research on the longer-term impact of law in system-changing, PLP is working to help fill this gap. In addition to the literature review referred to above, one of our clients’ cases was the subject of a detailed case study (Professor Lisa Vanhala and Dr Jacqui Kinghan, A case study of the personal independence payments legal challenge, PLP (supported by The LankellyChase Foundation and The Baring Foundation), April 2019).
The case study is an in-depth look from different viewpoints at the life and development of a judicial review (RF v Secretary of State for Work and Pensions, and Mind and Equality and Human Rights Commission (interveners) [2017] EWHC 3375 (Admin)). The experience and impact of litigation is hard to capture (which is in part why there is little research on the subject). The authors used an innovative methodology by blending data analysis (process tracing, document analysis and counter-factual analysis) with in-depth interviews and other data-gathering tools.3For a full explanation of their methodology, see page 30 of the case study. Unfortunately, the defendant’s employees and their lawyers did not participate in the interviews although they were invited.
Another shortcoming of the case study is that it was completed just over a year after the judgment, when the ‘legacy phase’, ie, implementation of the judgment, was still being worked through by the defendant. This demonstrates in itself the length of time it can take to embed the impact of legal casework. However, there are many lessons in the study useful for potential litigants, NGOs, lawyers and NGO funders. PLP’s work on the issue in partnership with Professor Vanhala and Dr Kinghan has done much to enliven debate, and we are really pleased that other funders and organisations are increasingly reflecting, learning and publishing on this issue.
More recently, on 14 February 2020, PLP published Professor Vanhala’s and Dr Kinghan’s more detailed report, Supporting systems changers through the use of collaborative legal approaches, which builds on the publications described above. The report describes the work that the PLP legal team was privileged to undertake with a number of small NGOs over the course of 18 months. It describes the different legal tools we used to try to best address the unfair systems faced by those organisations and their clients every day. We worked across a broad range of issues, eg, the (then brand new) EU Settlement Scheme and the impact of Brexit on Gypsy, Roma and Traveller individuals, local authority refusals to house women leaving prison, and the decision-making of the Criminal Cases Review Commission.
The report concludes with a number of lessons on the different legal approaches and tools we adopted. Those lessons include the importance of ensuring that tasks are owned. This is particularly so in the post-judgment implementation phase of casework, where lawyers traditionally consider their job is done and NGOs have not necessarily factored follow-up into their work or funding plans. The report also stresses the importance of considering the full spectrum of legal tools available and the potential relationship between them.
The clearest lesson for me has been on collaboration. Collaborative approaches are key to successful challenges to systemic issues. Collaboration with those who have expertise in the unfair system and an interest in the potential outcomes of a case can make a huge difference. However, it requires significant investment. Effective collaboration between NGOs needs financial resources, capacity and openness. Early participation and adequate time to engage with the sometimes complex and potentially thorny discussions makes all the difference.
There are two important issues to consider in this context:
1Because collaboration needs resources, adequate time needs to be built into work and case plans – are you and your clients setting aside sufficient time to collaborate at an early stage when thinking about using the law to improve decision-making or stop unlawfulness? Funders in particular need to be educated on the importance of this.
2Collaboration can require a shift in mindset that challenges deep instincts to ‘win’ rather than ‘share’, as well as changes in the culture within some NGOs and their legal advisers’ offices.
I’m straying beyond the findings of the report, or my expertise as a non-psychologist, but I will venture to say this: for individuals who see themselves as agents of change, who are used to working dynamically and on limited budgets in difficult jobs, allocating precious resources to working collaboratively is not always straightforward. Checking the instinct to win and reflecting from the outset as to whether law is the best way to challenge the unfairness your client experiences, and who else needs to come with you on that journey, is a good starting point.
 
1     Public Law Project’s Access to Judicial Review focus area work benefits from a strategic partnership between Public Law Project and funder, The LankellyChase Foundation. Professor Vanhala and Dr Kinghan are our learning partners in this work, helping us to evaluate and share understanding of how public law can help effect systemic change. More information about this work and links to all our publications, including a detailed literature review, can be found on our website»
2     Stuart A Scheingold, The politics of rights: lawyers, public policy, and political change, 2nd edn, University of Michigan Press, 2004, page 5. »
3     For a full explanation of their methodology, see page 30 of the case study. »

About the author(s)

Description: Sara Lomri - author
Sara Lomri is Public Law Project's deputy legal director.