Waiting with bated breath for a popular reform
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10 January 2014
Lawyers are hoping for a public interest fund with real teeth that will boost the reach of publicly funded justice, writes Elizabeth Davidson
THE general thrust of the Government's plans for the reform of legal aid has been met with a chorus of disapproval from the legal profession.
There is, however, one promised reform the establishment of a public interest fund which offers the unusual prospect of an extension of the reach of publicly funded litigation.
But lawyers say that whether or not the fund will actually improve access to justice will depend on how it is constituted.
So far, the Government has given few clues as to what it has in mind for the fund. This has led to much confusion within the profession.
Lawyers are asking when, where, and how it will operate, whether it will be temporary or capped, and whether it will entail the setting up of a commission to define what exactly is the "public interest".
Back in November, the Lord Chancellor, Lord Irvine, suggested cases brought under the Act incorporating the European Convention on Human Rights into UK law might be able to use the fund a move which would be bound to receive a substantial degree of support from the profession.
But last week, at a press briefing, Geoff Hoon, the parliamentary secretary at the Lord Chancellor's Department, was unwilling to speak about the fund in any detail.
He would be drawn neither on whether the fund would be capped nor how permanent it would be, although he did accept that the fund could be used to finance complex cases.
Hoon suggested that it could be used to help lawyers finance the initial stages of excessively complex cases such as those involving brain-damaged babies before leaving it up to the lawyers to carry on with them on a conditional fees basis.
Last month, 50 delegates representing academia, the Government, consumer groups, human rights organisations and the profession, attended a seminar on the subject held by the Law Society in conjunction with Justice, Liberty and the Public Law Project.
Suggestions raised at the seminar organised under Chatham House Rules which prohibit identification of individuals included: the appointment of an independent commissioner to perform the task of assessing "public interest" instead of the Legal Aid Board; that litigants using the fund should be protected from paying the other sides' costs if they lose, as happens in legal aid cases; and that the existing "reasonable" merits test be relaxed to allow funding for "test" cases.
Some delegates thought it unavoidable that the fund would be capped, while others argued that it should not be.
The majority of delegates were opposed to the fund being used for multi-party actions, such as the tobacco litigation case, as they believed it would swallow up its resources.
One important talking point was whether the fund could be used to finance third-party interventions in cases.
Human rights barrister Rabinder Singh, of 4-5 Gray's Inn Square, says this procedure is common in human rights cases where, for example, Liberty will make a submission on comparative law to the European Court of Human Rights, but the problem is that third-party interventions are not covered by legal aid.
If state funding for third-party intervention was introduced, it would mark a watershed in the provision of publicly funded legal services in this country.
According to Public Law Project (PLP) solicitor Jean Gould, the UK differs from all other jurisdictions in that legal aid payments have always only been made on an individual basis.
Gould, who first proposed the idea of a public interest fund in the PLP's response to the former Lord Chancellor, Lord Mackay of Clashfern's legal aid green paper in 1995, claims changing the system, to allow state funding to advice groups and related organisations bringing test cases on behalf of individuals, would greatly benefit social welfare and environmental law.
Until details of the UK fund are revealed in a promised government white paper on modernising justice, due out this summer, lawyers could look to other jurisdictions for inspiration.
Gould points out that Canada provides state funding for cases brought by two independent administrative panels which are assigned with the task of advancing equal rights and language rights.
In India, former chief justice PN Bhagwati liberalised the legal system in the 1980s so that groups and individuals could air their grievances against the state by filing "public interest" petitions with the courts, which would then have the discretion to take them up on an inquisitorial basis.
Bhagwati also commissioned socio-legal committees of inquiry to produce reports on particular issues, such as factories which used bonded labour, and set up monitoring agencies to ensure remedies were received by aggrieved parties.
Public interest litigation has led to ground-breaking social welfare reforms in India.
But it has also led to an increase in friction between the government and the judiciary, which has repeatedly clashed with politicians in its bid to stamp out corruption.
Such a radical innovation is unthinkable in the UK.
But the Government has promised that any money it can save by reforming legal aid will be ploughed back into the justice system.
And lawyers are hoping they will begin this process by setting up a public interest fund with real teeth.