The Critical Lawyers' Handbook Volume 1
3: Critical Legal Practice
The two distinctive features of law-centre organisation are management committees which include elected representatives of the users of the service, and collective working among the staff. Despite the many problems associated with both of these structures, I believe they have served those who need law centres well, which is of course how they should be judged. For that reason they are preferable to the likely alternative of appointed civil servants and lawyers directing hierarchies of staff (see Kennedy in this book; Watkinson in this chapter). There has recently been renewed discussion within law centres about collective working and some moves to dispense with it. This will seem to some an arcane debate, but it is in fact quite instructive about law centres generally. After all, it is impossible to discuss ways of organising without considering the aims and objectives of the organisation.
First, a description. Collective working means that the staff employed at a law centre are not organised in a hierarchy under a manager or director, but work as a team In which each person not only collaborates closely with the others but also participates in decision-making. This is usually done at a weekly staff meeting which proceeds by way of consensus, or failing that by majority vote with each member of staff having one vote.
It should be emphasised that collective working refers to how the staff operate. It does not mean that law centres themselves are co-operatives or collectives. Law centres are generally limited companies (by guarantee) whose directors form their management committees. This body employs the staff and is responsible, among other things, for directing the work they carry out and for internal discipline. It stands in a hierarchical relation to the staff as a whole.
It will be apparent that for collective working to succeed all the staff must have a shared understanding of and commitment to the goals and working methods of the organisation. Further, each person must make an equal input and take equal responsibility for the work that is carried out.
The fact that strict equality in these matters is obviously impossible, if not meaningless, does not mean that it is at all difficult to get a workable sort of equivalence. This is certainly much easier to achieve if differences in pay and the division of labour among staff are both minimised. This is why pay parity and self-servicing are the usual concomitants of collective working.
If staff are prepared to take equal responsibility and make an equal effort it is not unreasonable for them to expect an equal reward. If staff of widely differing skills undertaking very different functions are employed (lawyers and secretaries) then it will be more difficult for them to work effectively in a collective way. For example, staff undertaking only clerical work will find it more difficult to contribute to discussions about legal strategies, and staff undertaking only legal advocacy will be at sea about the problems confronting clerical staff.
This is not to suggest that the only successful collective is a homogenous one, but simply that the more the members of the collective are involved in broadly similar work the easier it will be for them to pull together, and for each person to make a useful contribution to collective decision-making.
Some differences in both pay and work are inevitable. For example, at some law centres all staff begin at the same rate but receive annual increments thereafter. Over the years this can lead to substantial differences, although nowhere near as big as those in private practice or local authorities. Also, everybody has the same prospect of achieving the top rate simply by remaining in post. This system is adopted to encourage staff to stay in what for many of them is a relatively low-paid job. The most obvious example of differences in work undertaken is to be found in the many law centres which have a bookkeeper who does no other work at all. It is generally accepted that this task is sufficiently specialised to justify a separate post.
the wider the pay differentials and the more advanced the division of
labour (into, for example, receptionist, caseworker, project worker, bookkeeper/administrator,
lawyer, secretary, fundraiser), the more difficult it will be to sustain
a collective approach.
Practice varies, but given the small size of law centres and the proximity of working, the staff meeting usually has no formal disciplinary function, although it may make recommendations to the management committee. The meeting must exercise the considerable power it does have in a sensitive way, but it must have authority. It must not be oppressive in the use of the majority vote, but neither must it allow individuals or groups the power to veto its decisions in an irresponsible way.
The staff meeting is to be sharply distinguished from the union meeting. Staff meetings are management meetings, whose prime purpose is to manage the service efficiently. Union meetings are workers' meetings, whose sole purpose is to advance the interests of the staff as employees. The fact that the same people, as employees and collective managers, attend both meetings obviously complicates matters, but for that very reason it is important for the distinction to be observed. If, for example, it is convenient for union meetings to follow staff meetings, they should have a different chair or convenor to mark them out. In this way it is much easier to identify the inevitable conflicts of interest which arise between the roles of manager and worker, and to deal with them properly. It also helps clarify the relationship of employer and employee, between the staff and the management committee, which is easily obscured by the close working partnership that usually exists between them.
There may not be any one law centre which operates collective working according to the model described here. Many would no doubt dispute the description itself; The majority, however, have largely subscribed to something like this in spirit, if not to the letter, for the past 20 years, and usually operate it in some form. Adjustments will always have to be made to fit local conditions, financial constraints and the particular skills and predilections of the team in post. In any event, it is a mistake to approach the matter in a rigid way.
Concentrating on keeping a balanced, team approach is much more important than worrying about literal infringements of the principle, many of which will, in any case, Inevitably result from outside pressures.
This leads us to the question: why bother with collective working? Is it not a nightmare to operate - difficult to get staff, fraught with tensions and, above all, inefficient? There is certainly ample evidence of self-indulgence and ill-discipline in its operation, particularly In terms of the hobby-horsing, guilt-tripping and personal-politicking to which staff meetings, the central mechanism of collective working, are vulnerable, especially given the generally libertarian temper of law-centre staff. On the other hand, there is no reason to suppose that a more hierarchical structure would operate any better in these respects. There is no shortage of examples from other organisations of lazy, oppressive, self-indulgent and corrupt hierarchies.
More importantly, the central charge of inefficiency usually begs the question as to what law centres should be efficient at. They do not, for example, have the same aims as a legal aid practice, where a sharp division of labour and a clear command structure are probably necessary to get through as many cases as profitably as possible while at the same time providing a good legal service.
Law centres, however, are trying to deliver something more than that. Good legal advice and representation are, of course, crucial, especially in those areas where for want of legal aid or private practice expertise many people would receive no legal service at all. But law centres are also more ambitious: addressing policy issues in the delivery of legal and public services generally; enabling local organisations to flourish with advice on constitutions, incorporation, charitable status; under-taking group work with tenants' associations, planning groups, women's groups; responding to local issues which affect many people, such as a planning redevelopment or rehabilitation programme; campaigning on specific cases (for example, deportations) or specific pieces of legislation; informing and educating the public about a wide range of procedures and entitlements.
Law centres try to stretch available resources to help as many people as possible. This involves undertaking individual reactive casework along well-established tracks. It also involves deploying a variety of methods of working: researching, lobbying, negotiating, publicising, organising, campaigning, as well as the fresh application of traditional legal skills. It involves developing new strategies and remedies which are apt to improve the quality of life for people in their localities.
It is in this context that both a mixture of skills and a team approach are vital. Most law centres employ not only lawyers but People with other skills and experience, for example in local or national government, race relations, community organisations, languages, education, journalism, trade unions, women's groups etc. They also try to ensure that women and black people, for example, are properly represented on the staff, not only as a good employment practice, but also to include on the team those who have a fuller understanding of the problems facing users.
A team of this sort will find it easier than a team of lawyers to address the problems of a locality in a creative way. It will be able to consider legal, quasi-legal and other strategies, and will be less constrained by consideration of the existing legal remedies. For example, an increase in the number of applicants declared intentionally homeless may be dealt with by way of renewed attention to judicial review proceedings or by representations to local councillors and participation in a local campaign or a combination of these.
the team is dominated by a lawyer, and it is usually a lawyer at the top
of a hierarchy when one is introduced, there is a real danger that the
formulation of policy and priorities will be dominated by a legalistic
approach. As it happens, this is the trend already in law centres, where
traditional legal casework and routine legal aid gap-filling work now
squeezes out more experimental approaches.
Each member of a hierarchy has a role which is defined firstly in terms of their position within the organisation. Each member of a collective, by virtue of their joint responsibility, takes a more proprietorial interest in the organisation and is more likely to look outwards. More traditionally organised offices, therefore, tend to be more insular and present a more formal face to the public. As a result they are not only less accessible to those who need to use them, but also less sensitive to their problems and needs. The more relaxed, informal atmosphere of law centres and their external orientation not only offers a more sympathetic service, but also narrows the distance between expert and client. This encourages understanding and co-operation on both sides and can lead to very fruitful joint work (see Ritchie, 1991).
It may be objected that it is the lob of the management committee to formulate policy, and for the staff to carry it out. This is true, but it does not follow that the way staff ate organised is simply a technical matter. Committee members obviously bring their own agendas to the task of developing policy and allocating resources. They can only do the job properly, however, if they are presented by staff with the information necessary to complement their own knowledge, and given the opportunity to make real choices between competing strategies and between areas of work which the staff could undertake. It will be apparent that the role of the staff is crucial, and so it will be equally crucial how they carry it out. It should also be apparent that the work and experience of a collectively organised staff is more likely to be fully available to management committee members than if it were funnelled through a single director.
There is no doubt that collective working is attractive to many individual members of staff, simply in terms of pay and working conditions. After all, it offers a greater degree of control over work, a greater level of participation in the decision-making process, and greater co-operation with others in the planning and execution of tasks than is normally available to many employees. Some staff (especially those who were around at the time that collective working and elected management committees developed in the early 1970s) feel that these structures, imperfect as they are represent in embryonic or prefigurative form the way the workers should organise in the future, and see themselves as setting an example and paving the way in that direction. It is not necessary to embrace such utopianism to welcome new and improved ways of organising our wage-labour.
Collective working, however, will be fudged mainly on whether it has delivered the goods to the people who need them. Law centres are justly criticised for the conduct of some of their internal problems and for the consistency and quality of some of their work. On the other hand, given their pitiful resources and their constant funding struggles, they can also boast a formidable list of achievements in terms of court victories, successful campaigns, policy issues raised, procedures developed and very substantial and tangible gains won for their clients. More than anything else, they have proved that there are ways of delivering legal services which are much more flexible and responsive to the needs of ordinary people than anything we have seen before.
contribution of both elected management committees and collective working
to that success is much underestimated. Law centres continue to face problems
of recruitment, of organisation and of the allocation of skills and time
in the office. The biggest problems they face, however, concern a crisis
of clarity and confidence about their aims and potential, and, Indeed,
about their achievements. That is another discussion, but adopting hierarchies
and renouncing collective working would, I believe, compound rather than
resolve those problems.