Public Interest Lawyering in Times of Austerity
On 24 May 2014, to mark its 14th anniversary, Oxford Pro Bono Publico presented a symposium on the importance of, and challenges to, the practice of contemporary public interest litigation. The symposium benefitted from a vibrant dialogue between prominent practitioners and academics. One of the panel discussions centred upon the impact of austerity on public interest lawyering in the UK.
Jo Renshaw, of Turpin & Miller LLP, illustrated the grave effect which austerity measures have had on the day-to-day practice of a public interest law firm. The cuts to civil legal aid brought in under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) affected a substantial proportion of the firm’s practice areas.
The pro bono contributions of students are a useful aid for practising solicitors, by providing clerical support in clinics through Oxford Legal Assistance. But the impact of the funding cuts has undoubtedly hit the most vulnerable. Clients from some of the more marginalised groups, such as immigrants and the destitute, have ceased to come for assistance. They know that there are simply no longer funds available to support them. These people have disappeared from the legal landscape.
Helen Mountfield QC, of Matrix Chambers, posited the difficulties of taking a public interest matter through to litigation where the individual(s) whose rights are in jeopardy lack the means necessary to satisfy an adverse costs order, should their claim be unsuccessful. Although discretionary funding for ‘exceptional cases’ is in theory available, in practice the provision is nowhere near sufficient, and those who miss out tend to be the ones most in need of additional support.
These practical considerations pose a real barrier to access to justice for those who cannot fund litigation through to completion. The criterion for justice then becomes whether the aggrieved party has sufficient resources, rather than the public interest in resolving cases fairly. This is obviously an unsatisfactory state of affairs. Helen emphasised the importance of members of the legal profession taking ownership of this injustice. It is our social responsibility, as advocates of the values of fairness and equality, to take steps to address this iniquity.
Polly Glynn, of Deighton Pierce Glynn Solicitors, explicated her experience with some shocking cases of individuals gravely in need of the assistance of a social fund to protect their legal rights. Examples posited included clients who required reasonable accommodation, people living in abject poverty and those in need of immigration advice and assistance.
Polly advocated some creative antidotes to the deleterious effect of the legal aid austerity measures. Greater dissemination, and improved ease of use, of information available to assist vulnerable clients would be one advance. Greater judicial awareness of, and empathy for, the plight of such individuals was another. The benefits which can be brought to litigation through third party interveners was also touched upon, and highlighted later in conversation between OPBP faculty director Professor Sandra Fredman QC and Justice Abella of the Supreme Court of Canada.
Although the context of the UK austerity measures inevitably paints a grim picture for prospective litigants in public interest matters, the existence and quality of dialogue between practitioners, faculty and those who contribute to the work of OPBP engenders some hope. The symposium in particular affirmed the clear commitment within the profession to ensure that the public interest in fair and open justice is not extinguished for the sake of austerity.