Bringing about social change is hard work and there are always many barriers, but there are also many methods for bringing about change. The law, in its many guises, is a tool for social change that is not always considered by civil society organisations.
The "law" can mean many things, from drafting legislation and proper implementation of existing legislation to litigating in courts. Organisations might be wary of going to court, but when used carefully litigation can play a key role in helping to achieve their aims.
To get more NGOs in this country to consider litigation as a tool for change, the Joseph Rowntree Charitable Trust and the Paul Hamlyn Foundation commissioned separate reports about two instances in which litigation was used successfully by charities and brought about significant change.
The first report, prepared by the Institute for Voluntary Action Research, focuses on strategic litigation by Detention Action, a small, non-legal NGO. Detention Action took legal action over the Detained Fast Track, a process whereby asylum seekers were routinely detained in high-security centres while waiting for their claims to be decided. Detention Action and its legal team brought a series of challenges that took several years, culminating in the Supreme Court upholding a Court of Appeal decision that the DFT was "systematically unfair".
The report says that strategic litigation can be a highly effective campaign tool,although it is a huge undertaking for a small organisation. The report examines the process surrounding the litigation, the factors that led to the litigation being successful, and the risks and challenges that Detention Action faced. The report finds that:
- Detention Action's ethos of building relationships with its legal team, the wider sector and the government was an important factor in the litigation's success.
- The litigation was a vital tool in a broader advocacy strategy. While Detention Action chose not to seek media coverage given the highly politicised nature of the issue, lobbying and policy work alongside the litigation helped Detention Action to work towards change in the longer term.
- Detention Action's experience of working directly with people in immigration detention gave the organisation substantial credibility.
- The litigation would not have been possible without a supportive management committee and a protective costs order.
The second report, prepared by Dr Lisa Vanhala of University College London, looked at Just for Kids Law's intervention in R v Tigere in the Supreme Court. The case was about the denial of student loans to lawfully resident young people who were not British citizens. The findings were similar to the IVAR report, concluding that:
- Being involved in a strategic litigation requires leadership on the part of senior management and trustees, on both the legal and communications side, over the length of the campaign.
- Proximity to those with lived experience of the issues is important.
- 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.
- Recognition is required that a communications strategy needs investment at a senior level and can take up significant time and resources to be able to shape the media narrative in a constructive way. The value of training key spokespeople cannot be underestimated.
- What the report describes as "legacy activities" to ensure that whatever the outcome of litigation, work continues to be done to "achieve an effective remedy" is vital.
Reports reviewing strategic litigation in other countries have been published. In 2013, Atlantic Philanthropy analysed what successful public interest litigation might look like, building on lessons it had learned from 20 years of experience in South Africa. Atlantic concluded that litigation is a useful tool in bringing about social change, but is most effective when used in conjunction with other social change tools rather than in isolation – the support of key communities, public education, media coverage, political lobbying and policy reform all have their place.
We hope that these reports will prove a useful starting point for NGOs and lawyers in the UK who are considering becoming involved in using the law to bring about social change.
Shauneen Lambe is the co-founder of Just For Kids Law