The Law Society is in discussion with City law firms over a number of ideas to ‘plug the gap’ post-Laspo, including ‘strategic litigation’, monitoring of public bodies and a privately funded CLAF, writes Elizabeth Davidson. An initial meeting was held last week between representatives from the Law Society, pro bono and corporate responsibility departments of City firms, legal aid firms and advice agencies. One key idea is to use judicial review as a tool to challenge reforms brought in by the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo). In this, City firms could provide both funding and manpower.
Richard Miller, head of legal aid at the Law Society, emphasised the project was in its ‘early stages’. ‘We are looking at how to mitigate the impact of the Act on clients and members. Part and parcel to this is working with City firms to see how their pro bono units and corporate responsibility departments might help. We will be looking very closely at the whole of the Act – both the legal aid and the Jackson side of things as well. We will be monitoring it.’
Measuring a negative
However, the task of identifying potential areas for judicial review poses problems. ‘It’s difficult because you are measuring a negative,’ he said. ‘We are starting to have discussions with academics to see what mechanisms there are for monitoring, for example, we would like the courts to monitor the number of litigants in person. It’s a double-edged sword because any extra monitoring is more work for lawyers.’
‘You need front-line workers to identify the trends. Some law centres and other agencies will be doing some of this work so that will help. The difficulty is, how do you get information about trends and how do you progress the matter? Do you, for example, get a City firm to identify a trend and get a legal aid firm to bring a judicial review, or vice versa?’
Miller said the Law Society is considering an initiative that would see ‘large firms adopting a public body and holding them to account’, for example, a City firm could take on board specific responsibility for monitoring the Border Agency.
He identified the proposed telephone gateway as a potential subject for challenge. This will act as the first point of access for clients, and all discrimination and education law cases will have to go through it, he said, ‘but the Legal Services Commission is tendering for three contracts only to do both telephone and face-to-face work’.
Miller said the Law Society would seek negotiations and discussions with the government, and only bring a judicial review ‘as a last resort’.
Test cases could be used to explore the boundaries of ‘exceptional funding’, which can be sought where there would otherwise be a human rights breach. Miller said it was unlikely the Law Society would initiate these cases, but that it might offer support to those that do.
Plugging the gap
He said the Law Society is looking into ways technology – mobile phone apps, Skype, websites – could be used to help clients, as well as the way services are packaged.
It will be looking into the ‘role of insurance to plug the gap’, and will also look at the potential for a privately funded Contingency Legal Aid Fund (CLAF). Miller said he ‘wouldn’t rule out’ asking the government for seed-corn funding for this, perhaps on a ‘matched’ basis where it equals funds from private sources. Once set up, a CLAF generates its own funds by taking a share of successful litigants’ damages and costs.
The Law Society is setting up a discussion group for practitioners on LinkedIn, where they can share experiences and discuss ideas, due to be launched by the end of next week.
Steve Hynes, director, Legal Action Group, said: ‘Pro bono help could probably only cover about five per cent of cases that have been taken out of the system, so using the funds to bring a judicial review makes sense.’
Hynes continues: ‘Immigration cases and public law cases, where there are cuts in public services, are potential areas for test cases. The telephone gateway is another area, in terms of its process, particularly how they choose the suppliers. The telephone is very useful for some services but it doesn’t suit everybody. For example, some people have communication difficulties, comprehension difficulties, language barriers, or they may have documents that need to be seen.’
Hynes’s main concern with test cases is that ‘you need a network of advisers who are doing day-to-day work and can pick up the cases’. It’s a chicken and egg situation, he says. ‘It will be difficult to do post-April [when the civil legal aid cuts are implemented] because you won’t have the people out in the field doing the work to identify the particular cases that could set a precedent. So identifying test cases is going to be more difficult.’
Julie Bishop, Law Centres Federation, said: ‘The problem is you can’t just decide to bring a judicial review, you need a throughput of clients to identify it and to find the problem that will exemplify the point that you need to make. But I applaud the Law Society for taking on the issue — it’s great that it’s initiating debate.’
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