Using the law to bring about social change

Shauneen Lambe is the co-founder and senior legal consultant at Just for Kids Law.  She is a barrister in the UK and an attorney in the USA where she represented those facing the death penalty. At Just for Kids Law Shauneen used policy alongside strategic litigation to campaign for changes in law and policy related to the rights of children and young people, changing the law and practice on many occasions. She is an Ashoka Fellow and a trustee of Ashoka UK, an Eisenhower Fellow and a trustee of the Centre for Justice Innovation and The Barings Foundation.

Social change can be hard to bring about, as anyone in the third sector knows there are many political barriers or whims that interfere with the work you are trying to do.

One great example of this comes from the charity Atlantic Philanthropy. In 2013, after nearly 20 years of funding social justice issues in South Africa, they analysed what successful public interest litigation might look like, building on the lessons it had learned already. 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.

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 implement lasting change. They believe that if they had gone straight for gay marriage at the outset, neither the courts, nor society would have been ready for such a change. Basically, bad law could have been created.

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

The Just for Kids Law

A recent report, prepared by Dr Lisa Vanhala of University College London, evaluated the charity Just for Kids Law’s  intervention in a case regarding the denial of student loans to young people resident in the UK who were not British citizens. The case R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills was heard in the Supreme Court and found that the law regarding student loan eligibility had violated some peoples’ rights to access to education. The report by Dr Vanhala found:

• Being involved in a strategic litigation requires leadership on the part of senior management and trustees in charities, regarding legal and communications issues, over the length of the campaign
• Proximity to those with lived experience of the issues is important to give the campaign legitimacy
• Getting lawyers with different expertise if the issue spans two areas of law is also important
• Awareness of the potential costs involved and risk assessment of the implication of those costs is needed.
• Senior management must invest in the communications strategy, which can take up significant time and resources if it is to shape the media narrative in a constructive way. The value of training key spokespeople cannot be underestimated
• Legacy activities to embed the outcome of litigation needs to continue often long after the litigation is completed.

Communicating your campaign

Many small NGOs do not have 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 to get an outside perspective on your campaign aims, and spot an issues that may arise.

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. Public support is easier to generate today than it was historically as petition organisations such as Avvaaz, Change.org and 38 Degrees can be used to pressure politicians in to legislating change.

Media reporting of the issue can also help to raise the awareness and can enable more people to support the campaign and sign a 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.

Alongside all of this, policy work and lobbying are 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 an area where the legal sector and voluntary sector working together can have maximum impact.

Choosing your team

It is important to consider who will be the spokesperson for your issue. You have to consider whether you are going to put the people affected as the face of your campaign, and what the impact on them will be if you do. 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.

More important still 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 will be able to apply greater pressure.

Can your cause benefit?

It is understandable that there is reticence about using the law to make social change, but being involved in litigation does not necessarily mean an organisation needs to bring about a case itself. Instead, it could mean being an intervenor (someone who is not party to the case but may be able to offer the court a new perspective), being able to raise broader points than those that are contained in the facts of the case, or it may be providing a witness statement citing research or evidence that enables the court to consider the wider issues.

Clearly not every campaign will benefit from using the law as a tool for social justice but applying the framework developed by us would allow a considered decision as to whether being involved in litigation could be an effective campaign tool for you and if so what is the best way to develop that tool.

To learn a little more about why strategic litigation may help your campaign we have developed short animations about using the law for social change. Lisa Vanhala and I will also be running a workshop on using the law to further your campaign at this year’s campaigning conference on 10 September, you can book your place here.