On Thursday last, I attended a conference run by the Free Legal Aid Centres (FLAC) on Public Interest Law in Ireland- The Reality and the Potential.
It was an outstanding event, with a wealth of speakers from around the world. Talking to other people attending we all agreed that it had been inspiring to see how the public interest, and particularly the rights of the unpopular and the oppressed, can be served by creative and principled use of the law.
The catalyst for the event was the publication by Mel Cousins BL of a research report on Public Interest Law.
That report identified four fields of public interest law
-Legal Education
-Community Legal Education
-Law Reform
-Litigation
Legal Education
This dealt with the training and education provided to law students and with the extent to which that system exposed them to the ideas and experiences which drive and underpin public interest law.
Without bluntly saying that the current law schools and professional training schools failed at this task, Mr. Cousins helpfully suggested the means by which such training could be improved.
1. Access and diversity- if you have only one profile of student, you only get one worldview and one set of experiences. Recruit from a broader base of people and you get a broader range of experiences in your student body.
2. The provision of courses in Public Interest Law. Although a well developed subject in other legal jurisdictions it is not directly addressed in Irish law schools.
3. Clinical legal education. This involves the provision of work experience, potentially at the coal face of legal needs, as part of the training courses.
4. Establish formal links between the Law Schools and their communities. There are some personal links with individuals, but these don’t carry on after the particular person has moved on.
5. Co-Ordinate those links, and matching needs with legal resources though a Centre for Public Interest Law.
Community Legal Education
My notes here are thin. Apparently the speaker felt there was none and that there ought to be more. I do him an injustice, but I have no more recorded.
Law Reform
NGOs, as part of his survey, said that they had a lack of access to legal analysis.
The Bar Council has a scheme in place where NGOs and other organisations can access barristers directly, without charge, if they need advice on a matter. To drive take up of this relatively new scheme, the speaker suggested a full time legal policy officer to match needs with resources, and to promote the scheme widely.
Public Interest Litigation
Mr. Cousins first undertook to examine how many of such cases the courts were currently handling. In a survey of Superior Court decisions (High and Supreme Courts) there were 33 such cases out of a total of 956 with written judgements. This is 3.5% odd.
This, putting it mildly, led the speaker to reflect that the field was still in its infancy.
The primary barrier identified was costs, and in particular the risk of costs being awarded against you if you lose. Legal Aid here, unlike the UK, for Public Interest cases is very rare. That’s very.
The UK also have a system of caps on cost liability which the courts here have yet to adopt.
He put forward a number of suggestions for how these problems could be overcome or their effects minimised.
– The use of non-court fora (lower costs)
– That the Courts would review their costs rules
– That precedent hinted that the Courts may not award costs against the losing side if it had no personal interest in the outcome of the case.
– That a Public Interest Litigation Fund might be established, for example to fund the provision of expert witnesses or even to underwrite costs in a case.
– That class-action suits, as recently proposed by the Law Reform Commission might provide a method of collective action
– That interested parties might raise pertinent points of law in cases as a friend of the Courts (Amicus Curiae), limiting the liability for costs
– That NGOs could take cases on behalf of those unable to do so, following the precedent of the recent, and as yet unreported, Irish Penal Reform Trust case.
There were a wealth of other speakers, and I’ll return to some of the other issues raised and ideas proposed in later posts. (I’ve to roll off to bed now, filled with mint humbugs.)