Since retiring in 2020 after 35 years including Managing Partner of Herbert Smith’s Brussels office and global head of antitrust at Sidley, Stephen Kinsella has focused on campaigning including board roles at Clean Up The Internet, Reprieve, Hacked Off and Law For Change. In this blog, Stephen discusses the crisis in access to justice and the work of Law for Change, an organisation set up to use the law as a tool to deliver wider social change.
Few readers of this blog will be unaware that we face a crisis in access to justice. In particular, when it comes to enforcement of “public law” rights, we also witness increasing attempts by government (and to some extent the judiciary) to close down a number of avenues. The bar to judicial review has been raised in the face of what are perceived as “political” cases. And in parallel, we see attacks on the right to protest, or even on the right to explain in court why one is protesting.
Meanwhile, what we now call “civil society" is limbering up for the challenge. The NGOs find the cases, they find the lawyers who will often work on a pro bono basis or CFA or other terms, and they might even crowdfund to cover their discounted legal costs or court fees. But they face one risk that is hard to cover, which is the uncertain exposure to adverse costs if they lose.
Which is where we come in at Law for Change. We are established to fund, without any return on our “investment”, cases that have merit but would fail to make it over the line for lack of a relatively modest amount of support. We are open in principle to cover any financial aspect. That has included research into whether a case exists, covering the claimant’s own legal costs and fees, and even covering the savings of an individual that would be taken by the Legal Aid board as a condition of their funding. But increasingly our support takes the form of an indemnity against adverse costs. And the impact of our doing that is frankly far beyond what we anticipated when we launched last year.
At any one time we are supporting 15-20 cases. So far since March 2023 these have included successfully challenging the Met Police for racial profiling; obtaining government disclosures post Grenfell about their policy on evacuation plans for vulnerable residents of tower blocks; one of the Rwanda deportation challenges; a ruling that Oxford University should give its academic staff proper employment contracts (see some good coverage here); forcing DEFRA to reverse a policy on food waste; compelling a police authority to accept its share of responsibility for the suicide of a vulnerable woman, and several other cases. Details where we can share them are on our website (though frankly, the website is a work in progress, we have grown fast and have plans to improve it this year).
We can take these risks because we have access to finance, and we have a large legal panel of expert lawyers who will, on a pro bono basis, look at the cases we are thinking of backing and give us an honest view on the prospects of success. What this means is that the institutions being sued know two things: that the case will be funded and that it has passed the scrutiny of our panel. Increasingly, cases that we support will settle.
I need to add that though we do have access to funding, we also present ourselves as a “funder of last resort”. If you have a case and fill in the simple application form we will want you to convince us that you have made reasonable efforts to obtain funding from elsewhere. And because we are not a law firm and therefore are not set up to look after clients, and it would feel irresponsible to try to do so, we only accept applications from law firms or from NGOs with genuine in-house capability.
So, what is my ask of you? First, I would ask that you consider joining our panel, and helping us to select cases worth pursuing. We have an impressive list of lawyers that you can see on our website, and we want to get it to 100 so that we only need to approach our experts infrequently on matters that are genuinely within their field of expertise. And of course, if you come across a case we could help get over that funding line, do consider us.