The legal issues underpinning the charity’s work in fragile and conflict-hit states is outlined by Joss Saunders, general counsel and company secretary of Oxfam GB and Oxfam International. Ruth Green reports.
Two weeks fresh out of university, Joss Saunders was on a plane to Uganda to spend the summer building water tanks. Most people would write this off as a stopgap before finding a ‘proper job’, but Saunders’ decision to stay on in West Africa marked a turning point that has led to an exciting career in the international development sector.
Although his degree was in history and he never set out to practise law, after spending a year teaching in a Ugandan high school, Saunders decided the legal profession would be the best forum for his talents.
‘I thought I’m not going to be a great gift to the teaching profession or to the engineering profession, so I’d better do something else, but was very keen to remain in development,’ he says. ‘I knew I was reasonable with words, so I became a lawyer.’
After training and practising in London, including a stint in Paris, Saunders realised he wanted to get back into development. He worked on land rights for indigenous people on Honduras’ Mosquito Coast, and was ready to cast aside city life and become a land rights lawyer, but then his life changed direction.
‘About the same time, I met my wife to be, who was working as a diplomat. She was going off to Eastern Europe, while I was heading West. That didn’t seem a great idea. Instead, I resigned from my job in London and accompanied her as a diplomatic house husband, spending three years in Warsaw.’
While Poland might not seem an obvious fit for the international development career he was to forge, it gave Saunders a front row seat witnessing the country’s early years of transition away from a Soviet state model.
‘At that time, Poland was emerging from Communism, the Berlin Wall had fallen, Lech Walesa was President. Also, the commercial laws of Poland, which had been suspended in 1939 at the time of the German invasion, weren’t reintroduced after the Second World War because it was then a socialist system. Starting in 1989, they had to completely rediscover their commercial roots.’
With few university lecturers in Warsaw having much experience of commercial law at that time, Saunders capitalised on his teaching experience and jumped at the opportunity to help.
‘A new commercial code was introduced, but there was only one professor who had any experience of it. They were looking pretty quickly at potential accession to the European Union and wanting to learn all about EU law, as well as business and commercial law, and were very keen to do that in community languages – English, French and German. So we set up a law school, the British Centre for English and European Law, at the university’s law faculty. I taught there for three years.
‘If you look at the students who went through, they were incredibly bright and a lot of them are now occupying senior positions in the Polish legal world,’ he notes proudly.
On leaving the country in 1995, Saunders had acquired a decent smattering of Polish and felt he was ready for his next challenge – back in the United Kingdom. Development was still at the forefront of his mind though, as he opted to join a small Oxford-based firm, Blake Lapthorn, which later became known as Blake Morgan.
‘The firm had been involved right at the beginning in writing Oxfam’s constitutions when it became a charitable company and used to do all the shop leases and so on. I thought that was a pretty good coincidence. When I joined them in 1995, I started doing bits and pieces of work for Oxfam,’ he says.
At this stage, Oxfam didn’t have a legal team to call its own and relied solely on external counsel, but a new head of finance joined the charity in 1997 and decided it was an appropriate to set up its own legal team.
‘When I started, there were about 15 charity lawyers working in-house in the UK, and we used to meet up. There are now 255 members.’
‘Oxfam’s new finance director, David Nussbaum (who is now the CEO at WWF-UK), arrived with a commercial background and said: where’s the legal team? And, of course, there wasn’t one. So he called me and asked if I knew anyone who would be interested. I said no, but that if it was ten years’ later I would be. But then I thought about it, he encouraged me to apply, and I was given the job.’
Saunders initially took on the role as head of Oxfam GB in 1998 on a secondment basis for four years while still working as a partner at Blake Lapthorn. However, since 2002, he has focused increasingly on Oxfam’s legal issues. He became a consultant at the firm last year, when he decided to dedicate more time and energy in his role as general counsel and company secretary at Oxfam GB.
Today, Saunders admits both Oxfam and the charity sector more generally have changed dramatically since he joined.
‘It’s evolved immensely and the whole charity sector has evolved a lot. When I started, there were about 15 charity lawyers working in-house in the UK, and we used to meet up once every three months to share notes and compare experiences. The group still meets but there are now 255 members, so it has expanded somewhat.
‘I think that’s one of the broader trends when thinking about the development of the in-house legal sector. The Law Society says over 20 per cent of registered solicitors in the UK are in-house – that increase has certainly been reflected in the charity sector.’
Saunders’ team is fairly small by in-house standards, comprising just three full-time lawyers plus trainees seconded from Freshfields Bruckhaus Deringer or Wragge Lawrence Graham for either a three-month or six-month period. Of course, as a charity, Oxfam also relies on volunteers. Currently, his team has a volunteer know-how officer, effectively serving as a paralegal, and an administrator who is a qualified Chilean lawyer.
However, given the charity’s international nature, Saunders has found himself increasingly involved in legal issues affecting Oxfam’s work across the world. So much so that he was recently also appointed general counsel and company secretary of Oxfam International, the charity’s umbrella body, which is currently based out of the Netherlands but due to relocate to Nairobi, Kenya over the next two years.
He also leads the charity’s Shared Legal Service, which connects 17 affiliate members and includes Dutch, French, Spanish and Colombian lawyers. Saunders says this ‘diverse pool’ has been a huge advantage, allowing the wider team to span more than 90 countries worldwide.
As Saunders explains, the remit of Oxfam’s work is extremely broad. His team advises on a range of legal issues related to the charity’s work to help people in fragile and conflict-affected states, such as providing clean water and sanitation; protecting against the spread of disease; providing disaster relief; helping to facilitate access to justice; and its overarching goal of ending global poverty.
‘At the moment, the refugee crisis is exercising us greatly, and we are both working on response but also looking at the underlying issues.’ He also notes that the crisis is keeping him and his team busy on three fronts, to manage issues affecting countries of reception, countries of transition and countries of origin.
‘When migrants arrive [in Europe], we make sure they have access to full legal advice,’ he says. ‘The UK has a very significant and well-developed set of organisations that, although short of money, are very capable in dealing with those issues. In some other countries in southern Europe, where very large numbers of people are arriving, that capacity is not as great. So in Italy we’re providing legal advice, not directly, but part of our response is to make sure that people arriving in Sicily are given rapid access to legal services. This includes how to get their children into school and registering for health services.’
‘Part of our response is to make sure that [refugees] arriving in Sicily are given rapid access to legal services.’
The Balkans is proving a popular passage for migrants in transit to other European destinations, so Saunders has people on the ground in Serbia and Macedonia making sure their legal rights are protected. However, he says the bulk of his team’s efforts are focused on refugee camps in the Middle East.
‘Oxfam’s response to the Syria crisis, like many organisations, is very complex and significant. In Oxfam’s case, it involves working in Lebanon and Jordan. For instance, we’re working on a large contract with some pro bono lawyers for the Zaatari refugee camp in Jordan, helping with water and sanitation.
‘In effect, it has become the equivalent of a major city in Jordan. People are going to be there for probably quite a while, and they’re going to need clean water and sanitation in a very dry area. The infrastructure that’s required involves fairly large contracts, and we need to ensure those are done well and on international engineering standard terms.’
Access to justice
The crisis has also thrown up several other significant issues. ‘Gender-based violence is a specific challenge in a refugee situation,’ says Saunders. ‘A large part of our work is looking at making sure vulnerable people are protected.
‘We have what is called a Protection Cluster with about 30 people who all receive some training in international humanitarian law. One of our projects is looking at women’s rights through a legal lens, and in light of the new Sustainable Development Goals there is a focus and a goal for the first time on justice and access to justice – so a big part of our role is working with worldwide colleagues on this.’
Oxfam’s goal to improve access to justice for communities, particularly women, in remote areas has seen Saunders travel to countries as distinct as Tanzania and Tajikistan in recent months. But with what he terms an ‘embarrassingly small’ legal budget of less than £250,000 per year, he has had to be somewhat creative and use his commercial nous to fulfil the organisation’s goals.
‘Our major task as the in-house team and my job as general counsel is to meet the business needs of the organisation so it can function and fulfil its mandate of overcoming poverty and suffering, but there are many opportunities to use the law to promote access to justice.’
A case in point is Oxfam’s Lawyers Against Poverty initiative, launched last June. Saunders hopes it will augment the good work the charity has already done through Advocates for International Development to help society’s most vulnerable people gain access to justice.
‘It’s not that people in developed countries have all the answers, they don’t; but it’s about recognising the fundamental injustice when there’s not a level playing field. There are things we can do to make sure people have access to support, know-how and resources,’ he says. ‘Part of that is about people in developed countries making their skills available and supporting their colleagues in other countries. We very much want to be part of the mix in helping to facilitate that.’
Close cooperation across the international development sector has also helped ensure Saunders and his team are able to react quickly in the event of a crisis or humanitarian disaster.
‘Duty of care is a really critical issue for us,’ he explains. ‘We had to recently evacuate some people from Yemen and often we have to put into place and draft very, very quickly – sometimes within the space of half an hour – a contract to cover evacuation between different agencies.’
The recent Ebola outbreak in West Africa was another example of when timing really was of the essence.
‘We were working with Save the Children, which was running Ebola treatment centres, and we needed to put together an agreement quickly to get some people out there to help,’ he says. ‘I sat down with one of the lawyers at Save the Children, and within half an hour we’d drafted an agreement to cover several people working inside the treatment centres. It included issues like duty of care, liability and indemnity issues in the event that any of them were infected.
‘Within the development community – the charity sector broadly but the development part of it – there’s incredibly close cooperation between legal teams. The degree of sharing that happens between the lawyers is remarkable and wonderful. We have a common platform between the international development organisations where we share information, documents and so on. Obviously, you have to be careful about privilege issues and confidentiality, which we are and have protocols for, but it’s an enormous help.’
Thankfully, litigation – something which frequently eats into in-house legal spends – is a relatively rare occurrence for Saunders’ team. Although he’s seeing a steady rise in other areas, such as compliance and regulation, there are no immediate plans to bring more people into his team to cope with the ever-increasing workload. This doesn’t trouble him much though, as long as the legal function continues to help Oxfam stay true to its roots. ‘You don’t need such a big legal team if you’re designing contracts in a way that will protect people,’ he says.
‘Within the charity sector, the degree of sharing that happens between lawyers is remarkable and wonderful.’
‘I was asked a couple of years ago if we would intervene in a case in the UK Supreme Court in relation to an issue about volunteering. It was a disability case. I queried which side I was being asking to intervene on, and was told: we’d like you to intervene on the side of the employer because charities will be affected by this decision.
‘I said I’d be happy to intervene on the side of the claimant who was being discriminated against, but I wouldn’t be happy to intervene on behalf of the employer. They were a bit surprised, so we didn’t intervene in the end. But it’s an interesting illustration. We’re not trying to cover our backs, we’re trying to work out what makes a difference because that’s the mandate: it’s about poverty.’