When law is not enough

Shauneen Lambe JG Winning in court may not always be enough to bring about social change. A multi-pronged approach may be needed, says Shauneen Lambe

One thing is for certain, in these uncertain times, that whatever the outcome of the Brexit case in the Supreme Court there will be many people who are not happy, the case has at times seemed to re-polarize the nation.

The level of interest generated in the media, not so much about the issues in dispute or legal remedies but about the deciders themselves, has been unprecedented in my experience. Whatever the legal community’s view of the coverage, what the case has shown us is the significant role the media plays in litigation.

In 2013, after nearly 20 years of funding social justice issues in South Africa, the charity Atlantic Philanthropy analysed what successful public interest litigation might look like, building on the lessons it had learned. Atlantic concluded that, while litigation is a useful tool in bringing about social change, it is more effective when used in conjunction with other social change tools, rather than in isolation. These tools would include engaging the support of the public or key communities, public education, media coverage, political lobbying, and policy reform.

At the youth justice charity that I lead, Just for Kids Law, we have run campaigns which combine all of these elements, with a degree of success. Using this approach, we have won significant protections for children and young people. We have come to believe, and I think Atlantic Philanthropy would agree, that when these strands come together, the changes achieved can be more stable.

On the other hand, taking legal action in isolation – without due regard to the political backdrop or media or public opinion – may lead to negative decisions or a fierce media/public backlash to a positive legal decision. The difference can depend a lot on the alchemy of who is the decision maker, how the media interpret a decision, and how the policy maker responds to a decision. Factoring this into planning social change can help to decide what is the right case and when is the right time.

One of the case studies in Atlantic Philanthropy’s review looks at South Africa’s journey towards gay and lesbian equality; from de-criminalising sodomy to the introduction of civil partnership. The study argues that by litigating in incremental steps, they were able to achieve lasting change. They believe that if they had sought gay marriage at the outset, neither the courts, nor society would have been ready for such a change. Bad law could have been created, which would then have had to be overturned, and inadvertently creating a bigger hurdle to be overcome in bringing about the change aimed for (here).

One way to ensure all potential outcomes have been properly considered is through conversations between litigators, public interest organisations and campaign groups, and, where possible, good partnership working.

No litigator wants to make bad law, so before deciding to embark on a strategic challenge using litigation at Just for Kids Law, we ask ourselves the following questions:

  1. Is this an issue that we believe is important enough and susceptible to change in the current climate?
  2. Are there different outcomes that an individual client might choose which might not advance the broader point that we are challenging?
  3. Most importantly, we map out the best possible outcome that we could achieve and, equally, the worst possible scenario.

It is only when we have weighed up and analysed these risks that Just for Kids Law will consider whether to move to the next stage.

We will then discuss the issue with our communications and campaigns team. I realise that we are in the extremely privileged position of being a small organisation which has staff with communications expertise. For those who do not it, may be worth talking to a friendly journalist or someone who has been involved in communications.

Speaking with people outside the law and those outside your echo chamber, you may hear a response that you were not expecting. It helps you to consider how you tell the story of your issue. What are the parts that are likely to be perceived sympathetically, versus parts that can be seen in a negative light? It might also help you identify issues that you might want to defend or rebut proactively before someone else makes that the story.

Broader public support is really useful, especially if you are challenging the government in the courts and are able to show that the public care about the issue that you are taking. Even if you lose the case in court, parliament may consider the change that you are asking for and implement legislation or enforce legislation that already exists, but is being ignored. Public support is easier to generate in the now than it was historically.

Previously, it was likely that the only people supporting change would be social activists who were already engaged in the issue. Nowadays with petition organisations such as Avvaaz, Change.org and 38 Degrees, pressure can be put on government to implement the change, outside of what is going on in the court case. In our ‘Still a Child at 17’ campaign, the Change.org petition started by the families of two 17-year-old boys who had killed themselves after being arrested, gathered many thousands of signatures and enabled the teenage friends of the boys to become active and engaged in the broader campaign.

Media reporting of the issue can also help to raise the awareness and can enable more people to support the campaign and petition than would be reached through social media alone. Celebrity support is another way of raising the profile of your litigation and campaign (think Joanna Lumley in the Gurkhas case), but is not always needed if you have a sympathetic story or unless the celebrity has a real link to the issue in hand.

It is important to consider who will be the spokesperson for your issue. Lawyers are often less compelling to the media as they are not personally affected, but you have to consider whether you are going to put the people affected as the face of your campaign. While there are advantages to having real people in the public eye, there can also be repercussions to individuals that they do not anticipate, nor wish to endure, when they are beginning a campaign. If you are more seasoned in this than the people involved in the case, I think there is a duty to explain the possible media implications. It can be very helpful to prepare some key messages for spokespeople and prepare them in how to answer questions that might be critical of them or of their beliefs.

Alongside all of this, policy work and lobbying is vitally important. The internal wheels of government may appear to move slowly but, as we have discovered, they can move with remarkable speed if they want to. Lobbying is another area where the legal sector and voluntary sector working together can have maximum impact.

But perhaps the most important element of all is building coalitions. If you are able to bring together people and groups who want the same outcome but use different tools to get there, then you are able to apply greater pressure. I would urge lawyers, considering strategic litigation, to engage with those in the social sector who might support their challenge.

I would also encourage social sector organisations to be braver about getting involved in the law as a tool for social change. Litigation does not mean an organisation needs to bring a case. It could mean being an intervenor, being able to raise broader points than those that are contained in the facts of the case, or it may simply be providing a witness statement citing research or evidence that enables the court to consider the wider issues than those that may be before it. An example of the success of unlikely coalitions comes from the United States where the American Medical Association and American Psychological Association filed Amicus Curiae briefs in the US Supreme Court in a case seeking the abolition of the juvenile death penalty. The evidence produced by these socially respected umbrella medical organisations supporting an outlier, a murderer, helped the court make the finding that adolescents who committed crimes of murder had an “underdeveloped sense of responsibility found in youth”. Justice Kennedy giving the decision of the court cited scientific and sociological before abolishing the death penalty for those under the age of 18.

Social change can be hard to bring about, whether through campaigns or litigation there are often many barriers. However interpretation of laws and narratives change over time and can be seen differently in different political climates (think Hillsborough). Considering all of these and how to deal with them, and of course persistence, can ensure a greater chance of success than when any is used in isolation.
For more about Just for Kids Law’s Still a child at 17 campaign, see here (the photograph is 17-year-old Kesia Leatherbarrow who died after being held in police station over the weekend).

About Shauneen Lambe

Shauneen is executive director Just for Kids Law. She is a barrister and helped establish the charity Reprieve

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