"PUBLIC INTEREST law . . . what's that, an oxymoron?" So remarked broadcaster and Irish Timescolumnist Vincent Browne at a Dublin conference held by the Public Interest Law Alliance (Pila) last April. We in Pila, and in our parent organisation the Free Legal Advice Centres (Flac), presume he was speaking at least half in jest.
Public interest law is a way of working with the law for the advancement and protection of human rights and for the benefit of marginalised and disadvantaged people through litigation, law reform and legal education.
Public interest law has long been part of the firmament of the legal culture in the United States, and law is increasingly being put to use to further the public interest in the United Kingdom and around the world.
Globally, public interest law centres, staffed by committed lawyers, policy analysts and campaigners and focused on the needs of vulnerable segments of society, perform yeoman-like work.
Through a finely tuned strategic mix of litigating and lobbying, these centres have achieved incredible, life-changing results in the courts and in the legislatures for those on whose behalf they advocate.
Additionally, just about all large, international law firms have pro bonodepartments and incentivise their lawyers to spend a small percentage of their time serving clients who might not otherwise have access to legal representation. Law schools have also played a vital role in engaging students in public interest law work, both through related curriculum offerings and clinical legal education programmes.
In Ireland, there is a laudable tradition of the provision of legal services by practitioners, at no cost for those who cannot afford to pay. This is typically done, however, on an ad hoc basis, and not in any structured way.
Moreover, the current scheme for the provision of free civil legal aid remains inadequate, especially with respect to its extremely restrictive income eligibility level, and the express prohibition on the provision of aid for cases brought in the public interest.
What’s more, there are a number of additional systemic obstacles that effectively deny access to the legal system for those individuals on society’s margins and those non-governmental organisations which represent their collective interests.
Flac has campaigned extensively and has achieved many successes on these and other issues since its foundation more than 40 years ago. Pila, a project of Flac, seeks to build on this work and, more specifically, to build a culture of public interest law in Ireland similar to that which exists in most other jurisdictions.
An immediate consequence of a flourishing public interest law culture is improved access to justice for all. This is Pila’s ultimate aim.
At a Pila seminar recently in Dublin, attendees heard from three dynamic and provocative speakers about how to overcome the existing barriers to public interest litigation in Ireland. Not surprisingly, the most significant of these is costs.
It is extremely difficult for an individual of average means, never mind someone from a disadvantaged background, to seek to vindicate her rights and/or the rights of similarly situated individuals in the courts, whether against the government or a private actor.
The possibility of her being unsuccessful in court and of an order to pay the costs of the prevailing party being visited upon her (as it likely would be), together with her own costs, has an undeniable chilling effect on litigating in the public interest.
However a trawl through the newspapers on a daily basis quickly reveals that the costs structure presents no such impediment to the vindication in the courts of the private interests of the wealthy and powerful.
The fast and furious response to this reflection of reality is that the courts are not there to be used to make law; litigation is meant to resolve a dispute between the parties thereto, not to address anyone else’s real or imagined grievance, and the appropriate venue for advocating changes in government policy and/or expenditure is Leinster House, not the Four Courts.
Pila acknowledges this competing reality and views litigation usually as a last, not a first, resort. Pila, and public interest law more generally, is not just about litigation.
In addition to its work on overcoming barriers to public interest litigation and on encouraging lawyers to do pro bono legal work, Pila engages lawyers from the pro bono register it has developed to provide training to non-governmental organisations to enhance their legal literacy and familiarity with a legal system that can often prove harsh and intimidating.
It is exploring law reform campaigns and is reaching out to law schools to ensure the next generation of Irish lawyers understands the myriad means in which law can be used in the public interest.
In some ways, the current economic malaise may make our work unpopular.
The law, legal system and lawyers, especially given the many Celtic Tiger transgressions of solicitors turned property tycoons and other examples of malfeasance chronicled in the media, have never been more unpopular and are easy targets for the public’s understandable rage.
That rage though, to some extent, emanates from an “outside looking in” perspective. Pila wants to help build a culture of public interest law in Ireland where all have access to justice and those now outside are welcome in.
Larry Donnelly, an attorney born and educated in Boston, is manager of the Public Interest Law Alliance (www.pila.ie, www.flac.ie). He is on leave from his post as lecturer and director of clinical legal education in the school of law at NUI Galway