Time to reimport the Rule of Law: Pro Bono and the Rule of Law

The Simmons & Simmons pro bono programme in England and Wales seeks to address gaps in access to justice, and in doing so, upholds the rule of law.

Pro Bono work has traditionally focussed on exporting the rule of law to developing countries as part of the broader development and governance agenda (See our elexica article). Whilst this agenda continues1, recent developments mean that the conceptual framework under which pro bono is operating needs to be expanded to ensure that, whilst the concept of rule of law is being exported, it is not simultaneously being eroded at home.

Unfortunately there has been a recent assault on the rule of law from within Western democracies on several fronts. Firstly, attenuation of the judicial branch of government by some parts of the media (and in the US, by the Executive Branch of Government) is leading to an undermining of public trust in the judicial system. This was evident in the recent Miller appeal to the Supreme Court, where some parts of the media inferred that the judiciary was taking on a political role. The undermining of the credibility of the Courts in reviewing executive power has the potential to both remove accountability of Government, and disenfranchises the utility of the legal profession in upholding the rule of law.

Second is the removal of the ability of citizens to access and exercise existing rights. Whilst the US and Western Europe have in place human rights protections, without recourse to those rights, the right does not exist to that person in need of it (see, for example Hannah Arendt2). This is occurring, for example for those citizens who are entitled to exercise their rights, such as employees being made unfairly redundant, but not having the resources to appeal at the Employment Tribunal, or families being evicted from their rental accommodation, but not having the legal resources to appeal this. Citizens also lose their ability to appeal decisions of the State, such as disability benefits, because they do not have access to the legal resources to do so. As such, government loses its accountability, and citizens lose their right to equal application and protection of the law, undermining fundamental principles of the Rule of Law.

Whilst both aspects of this are concerning, the second allows for pro bono lawyers to take an active role, from a practical point of view, by stepping in at the point where access to exercise of a right is denied. In England and Wales, the Legal Aid, Sentencing & Punishment of Offenders Act 2012 (LASPO) removed large areas of civil legal aid out of scope of legal aid funding. There is evidence that this legislation has considerably impacted the ability of vulnerable and marginalised people to access the civil justice system and uphold their human rights.3

Simmons & Simmons considered the way in which it could address the problem of assisting those who have been left the most vulnerable by the recent Legal Aid cuts, in addition to exploring other areas where there may be an unmet need for assistance. The firm has partnered with a number of frontline agencies to facilitate the provision of legal advice to indigent individuals, who are not able to access rights including; current and ex armed service members, prisoners, and those denied disability benefits.

Law for Forces Clinic

In 2012, the Legal Advice Centre (LAC) at Queen Mary, University of London established that there was a genuine need to provide both legal and social service assistance to current and former armed service members. Former Service members transitioning to civilian life face numerous challenges, many of which have legal ramifications. This includes issues such as housing, education (both for the individual and their family and children), finances and employment.4

A brief overlook at the hundreds of organisations that aid former service members in their transition reveals that very few are in a position to provide legal advice. QMU LAC collaborated with Simmons & Simmons to set up a pro bono clinic to provide proactive assistance to former and current service personnel.

Now running for five years, the monthly clinic involves students at Queen Mary, University of London Law School with Simmons & Simmons pro bono lawyers supervising, to provide a clinic offering advice to former and current service members on: Housing, Employment, Debt, IP/Business and Criminal law. Students and pro bono lawyers meet with the former and current military personnel at an onsite clinic, and then provide detailed follow up advice.

Prisoner’s Advice Service

The Prisoners' Advice Service (PAS) is the only independent registered charity offering free legal advice and support to adult prisoners in England and Wales. The availability of Legal Aid to fund prisoners' legal cases has dramatically reduced since 2013 - around 80% of prison law matters are now beyond the Legal Aid remit. PAS provides advice to prisoners through a telephone advice line; through written correspondence; by delivering advice clinics within prisons; by training prisoners to become peer advisors and through legal casework.

PAS is run by ten staff members (who together amount to around seven full-time staff). PAS receives 4,000 letters per year, and as a small charity, does not have the resources to respond to every letter.

In 2014 Simmons & Simmons worked with PAS to set up an outreach clinic whereby the firm assist in responding to complex legal queries received by letter from PAS. This enables pro bono lawyers to directly respond to the concerns of prisoners in a variety of areas (re-categorisation, early release issues, prison duty of care and sentencing matters), and prepare a letter of advice under the supervision of PAS solicitors. The firm also seconded a trainee for six months to the organisation in 2016-17.

Access to Justice Programme

In 2015 Simmons & Simmons launched its Access to Justice Programme, employing an in-house social welfare lawyer to oversee the work of lawyers employed by Simmons & Simmons in our London and Bristol offices. The Scheme delivers dedicated end to end case work for welfare benefit appeals at the First Tier Tribunal. The firm is specialising in the area of disability benefits, in keeping with assisting the most vulnerable clients, and working with front line agencies to take referrals, including South West London Law Centres, Disability Rights UK, Cardinal Hulme, Z2K, Dascas and Brixton Advice Centre.

Whilst lacking expertise in welfare benefits law, the firm considered that it could tap into the extensive Court and tribunal expertise of its lawyers, with the guidance of an expert in this area; an area of law which was removed from legal aid funding scope by the Legal Aid, Sentencing & Punishment of Offenders Act 2012.

The programme is able to leverage a high level of internal lawyer involvement. In the two years since its inception, 55 lawyers have been involved in cases including 30 partners, and an award of £191,000 in back payments (not including forward payments which would take the total to more than £500,000). This represents a successful appeal rate of 91%. In the past year we have also involved clients on this scheme, as noted above. Significantly, the scheme is now receiving external recognition as the benchmark way for UK firms to deliver access to justice to indigent individuals, under the UK Collaborative Plan, and has become known in the market and academic literature as the “Simmons model”.5

Conclusion

Whilst there is consensus in the legal profession that there should be a properly funded legal aid system, and that pro bono work is not a substitute for this6, the restrictions imposed to accessing rights, and the affect which this is having upon the rule of law, mean that pro bono lawyers are addressing what is an affront to the legal system as a whole. Significantly, this is facilitated through the operation with front line agencies, which allow for collaboration with pro bono lawyers in delivering these services.

Whilst the ability to assert rights is being eroded, the growth of bro bono work demonstrates the legal profession’s commitment to ensuring the survival of the Rule of Law.


1See: World Development Report 2017, and Sustainable Development Goal 16.3
2Hannah Arendt, The Origins of Totalitarianism, new edition (London, Harcourt, 1968) p 296
3Equality and Human Rights Commission, Research Report 99, “Equality, human rights and access to civil law justice; a Literature review”, October 2015, p 91.
4The Howard League for Penal Reform, Leave no Veteran Behind, p2
5See, for example, Lamin Kadar (2017) “The Growth of Pro Bono in Europe: Using the Power of the Law for the Public Interest”, PILnet- at pages 31, 32 and 41.
6Collaborative Plan for Pro Bono in the UK

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