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By Luke Clements, ISBN 9781913648077, Legal Action Group (December 2020)
Reviewed by Stephen Simblet QC
This short but important book seeks to bring out the way in which disadvantaged people are failed by the law and by lawyers, who see individual legal problems to be solved rather than addressing the inter-related and interdependent problems presented. This ‘clustered injustice’ arises through a failure to tackle how poverty, poor mental and physical health, caring responsibilities, racism and other social ills interact and reinforce each other. Chapters begin with extracts from the rules of a particular sport or pastime. The title’s ‘level green’ refers to lawn bowling and the increasing effect of the biases in the balls as they proceed across the so-called level playing field. Other analogies include being brought back to square one in Snakes and Ladders, and how some rules (eg Scrabble) are framed and applied selectively to suit the convenience of a particular organisation.
Clements, whose wide experience includes litigation in housing and disability rights, analyses carefully how ideas such as ‘juridification’ of particular issues can result in much more expensive, complex and ineffective solutions in areas as diverse as the care of the mentally vulnerable to the provision of support to carers. In A and B (Court of Protection: Delay and Costs) [2014] EWCOP 48 Peter Jackson J commented on the ‘madness’ of the level of costs involved and the danger of admiring the legal problems involved. Clements says that, in fact, this missed the point: the purpose is to turn social care delivery into a network of legal rights and responsibilities to be adjudicated upon rather than addressed by increasing resources. On the reticence of a traveller client being asked to fill in yet another legal aid form to bring yet another challenge to an eviction, the author observes that he (Clements) had a new car while the client was still at the side of the road.
Other chapters contain insightful observations on the rise of managerialism and ‘silos of control’ at the expense of service delivery from properly trained staff, and how targets can result in people manipulating performance data or focusing on what is measurable rather than what is useful. He also has very interesting views on how an organisation’s own culture and practices take over and colonise ideas of what is achievable, so that the focus becomes on what has always been that organisation’s method of working rather than what should be expected by its users.
The effects of removing discretion, institutional knowledge and cross-service working are ruthlessly laid bare in the chapters on bureaucracies and ‘doing justice’. Its attack on the reductionism of requiring people to complete forms before they actually get anyone to engage with their complaint should strike home to all lawyers, and cause us to reflect on the difficulties that those without our training and experience can face even to get the most basic assistance. So although this appears to be a book about problems in social welfare law and support, it is really about how ‘disadvantage’ causes other disadvantages, plural, and thus further engagement with the legal system. For example, being brought up in care significantly affects the chances of being on the wrong side of the criminal justice process, or the precariousness of asylum seekers’ lives compounds their housing, debt and health problems. Money issues affecting the significant number of unpaid carers cause difficulties treated as legal problems.
The section on ‘unacceptable behaviour’ and ‘difficult people’ should inform any practising lawyer’s approach to their clients, as should the useful insights on how stress affects cognitive abilities and the way in which concern about a problem and being involved in a legal case affects decision-making and leeches into other aspects of a person’s life. Although this book is about the failure of systems, ultimately, the book tries to provide a way forward, and the hope that lawyers and judges will, ‘pause before trotting out some apt maxim they learned as uncritical students; that at some fundamental level they come to understand what it is like to be a person who lives with disadvantage.’
Stephen Simblet KC is a barrister at Garden Court Chambers, specialising in civil liberties cases, in particular claims against the police and public authorities, inquests involving deaths in custody and the rights of those in psychiatric detention or in the Court of Protection.
This short but important book seeks to bring out the way in which disadvantaged people are failed by the law and by lawyers, who see individual legal problems to be solved rather than addressing the inter-related and interdependent problems presented. This ‘clustered injustice’ arises through a failure to tackle how poverty, poor mental and physical health, caring responsibilities, racism and other social ills interact and reinforce each other. Chapters begin with extracts from the rules of a particular sport or pastime. The title’s ‘level green’ refers to lawn bowling and the increasing effect of the biases in the balls as they proceed across the so-called level playing field. Other analogies include being brought back to square one in Snakes and Ladders, and how some rules (eg Scrabble) are framed and applied selectively to suit the convenience of a particular organisation.
Clements, whose wide experience includes litigation in housing and disability rights, analyses carefully how ideas such as ‘juridification’ of particular issues can result in much more expensive, complex and ineffective solutions in areas as diverse as the care of the mentally vulnerable to the provision of support to carers. In A and B (Court of Protection: Delay and Costs) [2014] EWCOP 48 Peter Jackson J commented on the ‘madness’ of the level of costs involved and the danger of admiring the legal problems involved. Clements says that, in fact, this missed the point: the purpose is to turn social care delivery into a network of legal rights and responsibilities to be adjudicated upon rather than addressed by increasing resources. On the reticence of a traveller client being asked to fill in yet another legal aid form to bring yet another challenge to an eviction, the author observes that he (Clements) had a new car while the client was still at the side of the road.
Other chapters contain insightful observations on the rise of managerialism and ‘silos of control’ at the expense of service delivery from properly trained staff, and how targets can result in people manipulating performance data or focusing on what is measurable rather than what is useful. He also has very interesting views on how an organisation’s own culture and practices take over and colonise ideas of what is achievable, so that the focus becomes on what has always been that organisation’s method of working rather than what should be expected by its users.
The effects of removing discretion, institutional knowledge and cross-service working are ruthlessly laid bare in the chapters on bureaucracies and ‘doing justice’. Its attack on the reductionism of requiring people to complete forms before they actually get anyone to engage with their complaint should strike home to all lawyers, and cause us to reflect on the difficulties that those without our training and experience can face even to get the most basic assistance. So although this appears to be a book about problems in social welfare law and support, it is really about how ‘disadvantage’ causes other disadvantages, plural, and thus further engagement with the legal system. For example, being brought up in care significantly affects the chances of being on the wrong side of the criminal justice process, or the precariousness of asylum seekers’ lives compounds their housing, debt and health problems. Money issues affecting the significant number of unpaid carers cause difficulties treated as legal problems.
The section on ‘unacceptable behaviour’ and ‘difficult people’ should inform any practising lawyer’s approach to their clients, as should the useful insights on how stress affects cognitive abilities and the way in which concern about a problem and being involved in a legal case affects decision-making and leeches into other aspects of a person’s life. Although this book is about the failure of systems, ultimately, the book tries to provide a way forward, and the hope that lawyers and judges will, ‘pause before trotting out some apt maxim they learned as uncritical students; that at some fundamental level they come to understand what it is like to be a person who lives with disadvantage.’
By Luke Clements, ISBN 9781913648077, Legal Action Group (December 2020)
Reviewed by Stephen Simblet QC
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