Better access to the law: property briefing for the Journal of the Law Society of Scotland

A quick blog (sign)post.

I have a briefing note in the October 2018 edition of the Journal of the Law Society of Scotland, which is available here. This note couples brief analysis of the Drumlean access case (Renyana Stahl Anstalt v Loch Lomond and the Trossachs National Park Authority [2018] CSIH 22, which I commented on here) with the more recent case involving the obstruction of a path at Penicuik (Manson v Midlothian Council [2018] SC EDIN 50, which I blogged about here).

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The Birds & the AirBnBs – some thoughts on pet birds, title conditions and short-term lets (a guest post by Andrew Todd)

This is a guest blog post by Andrew Todd, who can be found on Twitter: @AndyRTodd. It serves as a primer for a Case and Comment note he and Hannah Leslie recently contributed to the Juridical Review (the law journal of the Scottish universities).

A few years ago I worked with a property factor who told me about ‘The Greatest Letter In The World’.

I thought that was a bold claim but he showed me, and it was indeed The Greatest Letter In The World.

Here’s what happened.

A resident had phoned his factor to complain that a neighbour kept racing pigeons in his back garden. And, every time those birds returned home from a race, they would leave a ‘little message’ on the customer’s roof.

“Can you tell him to get rid of them?” he asked the factor. “I hate those birds!”

So, the factor wrote to the neighbour, he pointed out that birds were not allowed as pets under the title deeds and that he should remove them as they were causing a nuisance.

The neighbour wrote back.

The neighbour wrote The Greatest Letter In The World because all it said was:

“The title deeds say I shouldn’t keep birds. I don’t keep birds! The title deeds don’t apply to me because they’re not birds, they’re ATHLETES!”

That was him telt.

That’s why it was The Greatest Letter In The World. It didn’t matter what the law was, or what the title deeds said, there’s nothing you can say to a man who doesn’t keep pigeons, but winged Usain Bolts.

I’d forgotten this story until earlier this year when I was offered the opportunity to write for Juridical Review and to respond to an article by Malcolm on potential property law responses to short-term lets.

As general counsel for a housebuilder I’m interested in how the law responds to changing consumer demands. And one of the big challenges for housebuilders is how to deal with customers who don’t want to live in communities that become hotel rooms at weekends. At the same we also need to recognise that many customers want the opportunity to buy investment properties. Could we/should we do anything to respond to the rise of short-term lets? Do we do nothing because some customers want to buy properties to let out? Or should we do something because a sizeable number want to live in a community not a tourist location? And, even if we want to do something, was there anything we could actually do? As Malcolm had identified in an earlier article in Juridical Review, there are many challenges in trying to enforce a property law response, not least the difficulty of enforcing title conditions.

It was then a second quote came to mind. This time from Professors Gretton & Reid. They said in relation to a discussion about common areas: “Does it matter if a title is found not to include the common areas? In the real world – the world in which clients actually live – the answer may often be: not very much. After all, the common areas are still there… they can be used even if, strictly speaking, there is no right to do so.” (Kenneth G. C. Reid and George L. Gretton, Conveyancing 2013 (2014, Avizandum Publishing) p113.)

Or, in other words, does it matter what’s written in title deeds – in the real world, people will carry on regardless of what a title deed says or whether it is enforceable. And one aspect of that is that many residents will follow their title deeds regardless of whether they are enforceable. The average resident is unaware of enforceability or legal cases such as Barker v Lewis. If they see something in their title, if they receive a warning from a factor about the need to comply with something that is written in their title deeds, they’ll comply with the title conditions regardless of the legal standing of the warning.

And it was this idea which then led me to think – if some title conditions are unenforceable is there anything else we can use if we want to control short-term lets? And that made me consider the development management scheme and whether it could offer an alternative property law solution to controlling short-term lets. Because under the DMS a factor (appointed as manager in the scheme rules) does not require interest to enforce a DMS rule unlike with a title condition that must follow section 8 of the Title Conditions (Scotland) Act 2003.

(For those who want to know the law: section 8 states that “A real burden is enforceable by any person who has both title and interest to enforce it.” While section 72 of the Title Conditions (Scotland) Act 2003 confirms the relevant sections of the Act which apply to rules of the development management scheme. Section 7, 8 and 9 are not included within section 72 and do not apply to rules of the development management scheme.)

So, we had two ideas: one, the fact title conditions are an abstract concept for many people, and, two, the potential of the development management scheme to create rules which are enforceable. And while a development management scheme is not the answer for older developments as it would require to be registered against every property. It can provide a possible solution for new developments and for developers grappling with how to create title conditions that are enforceable and can deal with short-term lets – and perhaps even create title conditions that can help to control some athletic pigeons!

If you’d like to know more, including some examples of possible DMS rules, then you can read the article by Hannah Leslie and me in the latest issue of Juridical Review.

Inelegantly wasted

On 21 September, the Scottish Environment Protection Agency and the Scottish Land Commission launched an “innovative partnership and taskforce” to try to get Scotland’s vacant and derelict land into more productive, and more socially and environmentally healthy, use.

Details of the joint initiative can be found here.

Channelling the Sex Pistols, this campaign is hashtagged #notsoprettyvacant. (I suppose INXS’s “Elegantly Wasted” would not have fitted the ethos.)

I was interviewed about this on BBC Radio Scotland’s Newsdrive programme on 21 September (available online until 21 October). I managed to restrain the urge to make any inappropriate references to punk music in that interview: who says punk is dead?

Anyway, I will let that interview, and the SEPA and ScotLandCom resources, speak for themselves, and watch how this all develops – quite literally – in the future.

Dancin’ with Manson: what an owner can(not) do to regulate public access to land

The right of responsible access to land conferred by the Land Reform (Scotland) Act 2003 has emerged as one of the most important legal routes for public access to private land in Scotland. It is vaunted by many: in January this year, an event was held at the Scottish Parliament to “celebrate the 15th anniversary of the passing of the nation’s world-class access legislation.” This reception, organised by Ramblers Scotland, was suitably positive about Scotland’s modern access regime, which is only to be expected given the group’s ethos and outlook. But it would also be fair to say that the modern access regime has not always had a warm reception in all quarters. In this regard, 2018 brought two further important cases about its application.

The first case I have written about already (for example, on the ScotWays website). That case was a dispute about land access at Drumlean near Loch Ard in the Trossachs, which involved a landowner attempting to deny access to a place that was not automatically excluded as a forum for responsible access by the legislation. (In terms of section 6 of the 2003 Act, some land can never be suitable for access, such as a school or land where crops are growing.) Where land is not excluded from the right to roam, the legislation does allow for some land management decisions that restrict access, but only where the purpose of those decisions is not purely or primarily about restricting access. Significantly, in the Drumlean case the Inner House of the Court of Session clarified that the standard by which landowners are to be judged when it comes to assessing their motivations is objective rather than a subjective. The second case – which is the subject of this blog post – provides an interpretation of the Drumlean case, and explains the proper role of access authorities (i.e. the local authority or, where relevant, the national park authority) in the enforcement process when access has been blocked. It also serves as a useful reminder of the extent of land around a dwelling that can be excluded from responsible access.

Manson v Midlothian Council

The case of Manson v Midlothian Council [2018] SC EDIN 50 related to a blockage of a path in Penicuik that was relatively proximate to a house in an area described in the case as suburban and semi-rural. As with many court cases about access rights, a section 14 notice from the relevant access authority was involved. The pursuers in this case – a married couple who lived in the house in question with their two sons – appealed against that notice, and also sought a declarator in terms of section 28 that their land was excluded from access rights. The exclusion that was argued for was section 6(1)(b)(iv), which excludes certain land around a dwelling to allow for a suitable degree of privacy and a certain amount of undisturbed enjoyment for those in that dwelling. This provision has prompted much litigation already, having been considered in cases such as Gloag v Perth and Kinross Council 2007 SCLR 530 and Creelman v Argyll and Bute Council 2009 SLT (Sh Ct) 165. Before Sheriff Fiona Lennox Reith, QC, the pursuers were unsuccessful in this argument, and the access authority’s notice was allowed to stand. The notice did however face a novel challenge on human rights grounds, which will need to be borne in mind by access authorities seeking to clear obstructions in the future.

The judgment weighs in at 125 pages. This makes blogging about the case an exercise in selectivity. Here goes.

Background

The Mansons’ house – a modest, single-storey, family home – was set in roughly 0.21 hectares. A well-defined path ran relatively near this building, and the extent of the land co-owned by the pursuers took in part of this path. This path tapered off from a road, along which access to the house was taken by the co-owners (and others) for domestic purposes. Whilst (as we shall see) privacy was thought to be a particular issue in this case, it was not particularly easy to see into the pursuers’ house from the path or the road. The path then continued to Penicuik Estate, and the proprietors of that area had a servitude of access over the pursuers’ land to allow access.

The pursuers took steps to restrict access across their land, installing a fence with a padlocked gate across the path in way that would still allow access to be taken by the holder of the servitude right (albeit with the need for the use of a key), whereas those without a key would find themselves faced with a barrier taller than most humans (eight feet high) painted with anti-climb paint and accompanied with an array of signs and a placebo CCTV camera. Prior to the pursuers’ modifications, there was a both kissing gate and a metal five-bar gate.

These steps had the effect of making a previously usable route somewhat more tricky to negotiate. Were the landowners entitled to take these steps?

Issue 1: was the land subject to access rights?

If the land had been excluded from access in terms of the 2003 Act then, at least for the purposes of that legislation, those steps would have been fine. The sheriff however held the land was not within the prescribed section 6(1)(b)(iv) exclusion. This exempts domestic ground next to a dwelling to allow sufficient adjacent land for persons residing there to have reasonable measures of privacy. Every case like this will turn on its own facts, but the situation here does seem somewhat reminiscent of the earlier Forbes v Fife Council case (2009 SLT (Sh Ct) 71). That related to a path near some houses in Glenrothes which was on the far side of a fence as compared to the dwellings. In this new case, the sheriff noted it was difficult to classify a path that was about 20 metres to the west of the house as “adjacent”. Further, it was difficult to see how a reasonable person could regard the path as being excluded. Whilst there were some idiosyncratic issues at play here, not least the autism of one of the pursuers’ sons and related sensitivities of that, this did not inform the operation of this particular exclusion.

Issue 2: in erecting the barrier, what was the purpose of the owners?

As the land was not excluded, the erection of the barrier then fell to be assessed in line with section 14. There is detailed analysis of this point in the case and also much discussion as to whether antisocial issue behaviour was an issue, raising another analogy with the earlier Forbes case, where Sheriff Holligan did allow for the overnight closure of a path. In Manson, however, the pursuers sought a “stark”, “all or nothing” approach: i.e. this was not about regulating access at particular times of day. The sheriff held that the purpose on main purpose of the barrier was indeed to prevent access, and as such fell foul of section 14. On the issue of the behaviour of access takers (with, for example, littering and dog fouling being raised as problems), low-level irresponsible access could not be a reason for stopping all access. All things considered, and even in light of the pursuers’ potential garden expansion and apparent issues with their son struggling to sleep as a result of hearing nocturnal access, the land was accessible. This meant the access authority was entitled to take action under section 14(2).

Issue 3: did the access authority consider the human rights of the owners?

Where Manson becomes more of a trailblazing case is in relation to a human rights issue. Part 1 of the 2003 Act has faced – and survived – earlier human rights tests, notably in Gloag v Perth and Kinross Council and more recently in the Drumlean case. This new case was not a broadside against the scheme of the 2003 Act though. Rather, it was to do with the access authority’s approach to its role under the legislation, which (as a public authority) is subject to human rights constraints. The pursuers claimed that the actions of the access authority in issuing the section 14 notice had been such that it had unduly interfered with their private and family life and their property rights (in terms of Article 8 of and Article 1 of the First Protocol to the European Convention on Human Rights), but the sheriff did not agree. She felt that the access authority had engaged in more than a purely “tick-box” exercise and as such had engaged with human rights concerns. Accordingly, the section 14 notice stands, with the practical implications for the site in question being that the blockage cannot be left to stand in its present form.

Conclusion

Judgment was only handed down on 6 September, so there may be further twists and turns to come for this path in Penicuik. For the moment though, the judgment serves as a useful reminder and application of how the legislation works, and also reminds access authorities to follow the legislation in a way that does not pitch them and access takers against the wider right of responsible access in a manner that is not cognisant of the rights of individuals affected.

Ramblers Scotland began 2018 celebrating the modern access regime, and they are also suitably positive about the “excellent result” in the Manson case . The Scottish Rights of Way and Access Society (generally known as ScotWays) also welcomed the result, Interestingly, the chairman of the Midlothian Access Forum and a member of ScotWays gave evidence in the case (which the sheriff recounted, noting it had been described as “the most aggressive occasion Dr Pope had ever encountered”).

What should we make of this? Whilst access rights can be applauded and individual victories for access takers might be celebrated, there is a balance that needs to be struck. More extreme reactions from landowners, such as those that might have been evident in recent cases, may not be the norm, but landowners and land managers are also part of society and must have their interests properly considered if Scotland’s “world-class” access regime is to have as much buy-in from all parties as possible. The newly entrenched objective test for land management should help with that objective, as should the Manson case’s clear analysis and application of it in a sensitive situation.

Anyway, now seems as good a time as any to publicise my involvement with a new text, The ScotWays Guide to the Law of Access to Land in Scotland, which will be published later this year. I was only able to give cursory coverage of the Manson case late in the proofing process, but fortunately the case did not go against anything I had said in the text. This blog post offers a bit more detail than I was able to provide in the book.

Photo credit: Ramblers Scotland

Post scriptum: the title of this blog post? Yes, it is a Therapy? reference.

 

A land reform explainer for a primary school project on the Highland Clearances

A friend recently got in touch to ask me if I would be willing to assist with her daughter’s primary 7 project. For readers outside Scotland, primary 7 is the last year of primary school before entering secondary education.

The topic for this project was “The Highland Clearances”. By way of disclaimer, I did not choose this topic, and I do not know why it was chosen. It is pretty interesting though, and – in my humble opinion – I am happy that primary school kids are looking at this kind of subject. I know I did not study this particular topic in depth when I was at primary school (furth of the Highlands and Islands). For information, the school that this project was written for was also outwith the Gàidhealtachd.

Another disclaimer: clearly, I am not a historian to trade. My role was to answer questions about the future. The questions I was asked were not chosen by me and I did not seek to change them. Those questions and my answers are set out below.

Before doing that, I will address the relatively well-known challenge for academics, which is to explain things for those outside their discipline in simple terms. I confess, I sometimes stuggle with this. How did I get on with this particular task then, trying to explain things for a youngster? Judge for yourself. I did find it difficult not to caveat or footnote everything I said, or elaborate to the nth degree, but I tried. The fact that I tried made me think it might be worth sharing this as a blog post as well, so here goes.

That’s enough background. The questions and my responses are below. The final words are those of the report writer.

And yes, I did ask my friend for permission before publishing this as a blog post!

And yes, I know in other circumstances it would be appropriate to say [citation needed] for some of the statements I make in this post, but forgive me – it was a primary 7 project! 🙂

Highland Clearances – have things changed?

I have interviewed a man called Malcolm Combe who works at the University of Aberdeen as a Senior Lecturer in Law and I have asked him some questions about his opinion about the Highland Clearances and how we can be sure this will never happen again.

1. Why do you have an interest in land law?

I enjoyed studying it when I was at university. The rules made sense to me and I found that I was quite good at it. I then continued to research it after I was a student and it has now become a specialist area. Also, I have quite an interest in history, particularly the history of Gaelic Scotland (my mother comes from the Isle of Lewis) and the “land question” has been an issue in the Highlands and Islands for many years. It has also been an issue in the rest of Scotland too though, and I recently discovered that Mary Barbour – who was involved in the Glasgow Rent Strike that took place around the time of the First World War in protest at greedy landlords raising the rents quickly – was born in the same village as I grew up (Kilbarchan).

2. Do you think it was fair the way people were made to leave their homes during the Highland Clearances?

Many owners of the land were quite – how can I put this – enthusiastic in trying to introduce what they though was the best and most profitable use of land. This often took little account of the people who had traditionally occupied the land. A traditional way of life was scattered to the winds, and people were forced to either emigrate, move to the cities or move to worse areas of land with scarcely any preparation for that. And the market for the sheep that replaced the people crashed a few years later, so in hindsight it seems like it was all quite short-sighted.

3. After the Highland Clearances were there any changes in the law to try and protect people?

Yes. The first big change was the Crofters Holdings (Scotland) Act 1886, which ensured that those people who were still on land were protected from drastic rent increases, were given money for any improvements to the land they had made, and were not evicted from (made to leave) land if they were behaving themselves and doing all they were supposed to. Around the time of the First World War there was some resettlement of land that had previously been cleared, and there have been some other changes as well (see below).

4. Could something like the Highland Clearances happen again today or are there laws to prevent it from happening?

Not in the same way, no. Tenants (so people who occupy land with the agreement of the owner) of agricultural land are protected from being forced to leave just because a landowner wants to do something else in many circumstances. And also there are increasing numbers of community owners, who are less likely to evict people in a way that the disconnected owners who evicted people in the Highland Clearances did.

5. Has anything been done to encourage people to move back to the Highlands?

In the 20th century there was the Highlands and Islands Development Board, who brought employment and electricity to the area by doing things like hydroelectric schemes. There were also grants available to help people to build houses in rural areas. Now, there are some rules to allow communities to obtain ownership of land.

6. I have read that by the 1990s 80% of Scotland’s land was owned by just 0.08% of the population with half of the land being owned by just 500 people. I don’t think that is very fair. Have the Scottish Government done anything to try and make this fairer and do you think they will do more in the future?

Laws were passed in 2003, 2015 and 2016 to encourage community ownership of land. The Scottish Government has committed to getting 1 million acres of Scotland (about 1/20th of Scotland’s land area) into community ownership in the next few years and they are just over halfway there. There are also rules to try to encourage people into rural farming opportunities and some land uses are being looked at closely with the potential for future regulation (for example, grouse moors and deer forests). There is also a new Scottish Land Commission that is studying land issues in Scotland and that are considering what other countries do with their land to see what Scotland can learn.

It was very interesting to hear what Malcolm had to say and that the government are taking steps to try and prevent something like this ever happening again and to make land ownership fairer.

Some reflections about Nature Conservation and the Law of Evidence

On 15 June 2018 I was involved in an event at the University of Aberdeen alongside my then colleague at the School of Law, Dr Phil Glover. We were joined by Ian Thomson from RSPB Scotland and Tim Baynes from Scottish Land and Estates. An outline of the event (written beforehand) is available here, and some photos and brief commentary from after the event can be found here. There is also a thread of tweets from the @RuralLaw Twitter account, available here. This is a short post to draw together the various resources about the event, and also to develop a couple of topics that were discussed on the day

Why did we host the event?

The whole event spun out of a series blog posts commenting on certain legalities involved with decisions not to prosecute anyone for apparent instances of wildlife persecution – in this case against birds of prey – as reported on BBC Scotland. These posts are digested and commented on in an earlier post on this blog and also a post by Dr Glover at the University of Aberdeen School of Law. That post by Phil sets out some of his academic thoughts on the issue, and flags a comment piece he contributed to the legal journal the Juridical Review.

That sort of explains why we had the event, but why did we have it when we did? Important as the issue of nature conservation is at any time, my ulterior motive for having the event in June 2018 was Phil’s impending move to Perth, and not just the Perth down the road. He has secured a job at Curtin University in Western Australia. I am sorry to see him go and I wish him well. I was not going to let him go without giving him one last hurrah though. Accordingly, I set about trying to organise suitable panel to actually discuss the issue in a practical and pragmatic way, and certainly not in a legalistic or purely academic lawyery way. I was delighted that Tim and Ian agreed to join us in Aberdeen at a time which suited us; thanks again to them for coming to Aberdeen for this.

What was discussed?

The event itself involved me setting the scene (see the already linked blog posts for that), then I handed over to Phil to explain the position with regard to non-authorised covert surveillance. (N.B. not illegal surveillance, necessarily, simply surveillance that is operating outside the authorisation regime provided in the Regulation of Investigatory Powers (Scotland) Act 2000.) In some of these instances which have attracted media comment, there has been footage obtained on a camera positioned on land without the prior consent of the owner or land manager. Had this positioning been done by the police, a robust approval process would need to have been followed. It would seem strange if essentially private actors – laudable as their motives of nature conservation may be – could obtain evidence without following any particular process that would automatically be admissible in court. (Please note this is me paraphrasing, criminal evidence lawyers might be cringing at my inarticulate synopsis here.)

 

There has also been some discussion about whether – in land law terms – positioning cameras might be allowed owing to the fact that the land is accessible for recreational, educational and even some commercial purposes in terms of the Land Reform (Scotland) Act 2003. I spoke to the reasons why this statute might not actually help private investigations like this, as the legislation does not cater for objects being left unattended on land. Separately, and as has been noted separately in correspondence from the Crown Office and Procurator Fiscal Service dated 30 May 2017 (as explained and linked to in my earlier blog post), access rights are for certain purposes only. Those purposes do not extend to the investigation of crime.

After I spoke, Ian then explained how he saw things from his perspective as an investigations officer at RSPB Scotland. I think it is fair to say his frustration at the difficulties involved in prosecuting those who would cause harm to Scotland’s protected birds of prey (in terms of the Wildlife and Countryside Act 1981) was palpable. Tim then offered some practical views about land management and expressed reservations about widening the admissibility of evidence obtained by covert surveillance, highlighting concerns about privacy for residents and employees. (Privacy was also touched on in Phil’s presentation.)

That was the organised part of the event. And immediately prior to the event, Phil, Ian, Tim, and I were interviewed by Kevin Keane of the BBC for its BBC Radio Scotland show Newsdrive. Our feature starts around 1 hr 45 minutes into the show and is available online here until 15 July 2018. Listening to that, and the comments above, should give a flavour of formal proceedings.

What else was discussed at the event?

This blog post will now try to gather any other insights from the discussion that followed. And it was a wide-ranging discussion. Conversation very quickly moved on to satellite tagging of birds and situations where these have either failed (suspiciously?) or have apparently been tampered with. I am not offering any comment on that, but needless to say evidence of an instance of tampering is not automatically evidence of a crime by an identifiable individual, so it was not really what the seminar was about. Another issue raised in discussion (by Ian) was the analogy of covert surveillance in a residential care home, which might be deployed by a family member to catch mistreatment of an elderly relative: would that be admissible? And is there a difference? (Quickfire answer: perhaps yes, as this hypothetical situation involves criminality to a human, but again I oversimplify.)

Plenty other matters were discussed, involving privacy matters and (for example) usage of “dashcam” footage taken from passing cars in court.

From all of the discussion, I think three legal comments made on the day are worth noting here, as I do not think they have been raised in detail in this particular context.

First, to amend the Regulation of Investigatory Powers (Scotland) Act 2000 to allow for private surveillance by a body like the RSPB would need primary legislation. That is to say, an act of parliament would be needed.

Second, to allow for the Wildlife and Countryside Act 1981 to operate without having to worry about the regime in the Regulation of Investigatory Powers (Scotland) Act 2000 would also require legislation. This is because of the public law norm that a later statute prevails over an earlier statute when it comes to statutory interpretation. (Thanks to my colleague Mike Radford for this insight. Again, I am probably oversimplifying this.)

Finally, and indeed this was the final point raised on the day, if the law is not able to practically work, is it now time for a licensing regime for the businesses operating in places where birds of prey have been coming to harm?

What next?

And having thrown that cat among the pigeons about licensing, I quickly move on. That is probably enough about the law and law reform, I think. In fact, I am acutely aware the law is only part of the story, and at this point I will link to a recent blog post by Isla Hodgson (who we were lucky to have in the audience on the day of the event) which serves as an introduction to many of the aspects involved here.

I know a lot of this is a hotly contested area, and Phil and I have rambled into it with the impunity of academics who are not dealing with the issues day to day. I hope our thoughts have been welcome though. The well-attended and, I think, well-natured seminar that we hosted makes me optimistic that our incursion into nature conservation and related legalities from evidence and land law was worthwhile. I also know the event attracted some interest from the Crown Office and Procurator Fiscal Service, although you will have to take my word for that.

In drawing this post to a close, I will offer links to these tweets reflecting on the event: one from another attendee, Libby Anderson from the charity OneKind…

…and this from one of our speakers, Ian Thomson.

Last but not least, two people who attended the event promptly drew my attention to this story on the BBC about golden eagle eggs being taken from a nest, which happened to be reported on the day of the seminar. I know this is but one report, and anecdotes should not be over-egged, but this does serve to show the issue of raptor persecution is not going away.

I don’t pretend to have a magic law reform solution to offer at the moment.

It does seem fair to say that the laws that are supposed to protect Scotland’s important wildlife are struggling to operate within the existing framework.

Further analysis and consultation will no doubt follow but, from the discussion aired at the seminar and elsewhere, we now know what many of the issues are. Accordingly, it seems fitting to conclude with the words tweeted by Libby Anderson: “Let’s get on with it then.”

Law clinics and pro bono publico in the internet age – the SULCN Conference 2018

This blog post by me was first published by Scottish Legal News. It is reproduced here with permission.

On 6 June 2018, students and staff from seven of Scotland’s universities met at the University of Dundee for the seventh annual conference of the Scottish University Law Clinic Network (SULCN). They were joined by representatives and observers from the Scottish legal profession, with support from the Law Society of Scotland who kindly sponsored the conference.

After an introduction from Elizabeth Comerford of the University of Dundee and me on behalf of SULCN, the opening keynote was delivered by Mike Dailly of the Govan Law Centre. Whilst Dailly now works in Glasgow, he grew up and studied in Dundee, allowing him to offer a number of local anecdotes in the process of highlighting some of the important work he has been engaged with to further access to justice in Scotland, the UK and indeed the EU.

The theme of Dailly’s talk was “virtual pro bono”, but he also spoke about very traditional pro bono publico (for the public good) work and his involvement as a volunteer giving legal advice in Castlemilk. He went on to describe his modern interest in “fintech” and the overarching goals of open access to information and legal rights. As part of this, he highlighted his work in areas such as:

1. bank charges, where a pro forma letter that could be sent to banks which he drafted essentially went viral, tipping the balance in favour of some banking customers who may have felt alone until then;
2. payday loans, where he was involved in devising an accessible resource to help provide clear access to the law and solutions that could be deployed against unscrupulous individuals who might be pursuing debtors; and
3. his campaign about the “bedroom tax” (which led to increased charges relating to dwellinghouses that had previously enjoyed certain reliefs) with Jonathan Mitchell QC, which led to Article 13 ECHR being successfully “read down” and providing a remedy for someone with a medical condition.

Returning to the theme of the conference, Dailly considered where law clinics might fit in. In his view, students are ideally placed to develop online resources for the public to use. He also noted clinics are strategically placed to play a role in triage (to refer people to suitable agencies and solutions), and that SULCN itself can play a part in that.

Meanwhile, he noted that virtual pro bono might extend to using technology to play a part in rural empowerment and access to justice, perhaps to help an adviser to chat with anyone facing an unmet legal need in places that would be tricky for an adviser to get to in person. This was a theme returned to in the later presentation on the Scottish University Land Unit.

Dailly concluded by noting that law clinics, law centres and other third sector organisations can have a crucial role in identifying problems, campaigning for reform, and engaging with research. The research role is something that those in a university setting might be particularly suited to. A vibrant discussion followed afterwards, about matters like social security reform and law clinic involvement in employment tribunal cases (this being particularly relevant to the University of Strathclyde Law Clinic). Whilst that discussion was not recorded, Dailly’s inspirational talk is available online.

The next session was a joint presentation by Pippa Robertson from the Community Ownership Support Scheme (COSS) of the Development Trusts Association Scotland and me. This was about the new Scottish University Land Unit (SULU), which seeks to deploy the enthusiasm and skills of law students in a manner that can empower Scottish communities to make use of local land. Details of the scheme can be found on the COSS website and on my blog. The scheme is currently in a pilot phase at the University of Aberdeen, but it is ripe to be rolled out across other universities, even where there is not an existing law clinic, not least because the scheme is structured in such a way as to not require each individual university to take out its own insurance policy or anything like that. As to what students can do to help, they might offer support in relation to the various community rights of acquisition which now exist in Scotland, or they might be called on in relation to more traditional property law issues. In this vein, Robertson explained a few of the ways in which law students from Aberdeen have helped so far, where they have provided information about rights of pre-emption, access disputes, and encroachment.

There was then a short session where representatives of Glasgow Caledonian University Law Clinic, Aberdeen Law Project, and Edinburgh Napier Law Clinic explained their respective structures and gave an indication of the kind of cases and public legal education projects they are engaged with. Representatives from the University of Abertay then explained their link with Citizens Advice Scotland, delegates from Strathclyde highlighted how they made use of drop-in sessions at places like the Mitchell Library in Glasgow, and the model of case supervision at the University of Edinburgh – where a volunteer solicitor assists a postgraduate student on the Diploma in Professional Legal Practice course – was discussed. A session such as this has been an ongoing feature of SULCN since it was launched, to allow for the sharing of ideas and models with those who might wish to start a clinic and existing clinics who may wish to branch out into other areas.

This was followed by a presentation from Sarah Webb, a student at the University of Abertay who explained a new interdisciplinary project between that university and Police Scotland to help close cold cases about missing persons. This has attracted some coverage in the press, such as this item on STV News. She explained the methodology that was being deployed – which will involve trawling relevant newspapers one month either side of a reported find of a body or body parts – and the hope that this use of student resources might just provide a bit of closure to a family that has so far been denied that.

After that innovative talk, the more traditional legal world of litigation was explored, albeit with reference to a new device that will be of particular interest to those involved with pro bono litigation (including, potentially, law clinics). The recent Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 allows for “pro bono expenses orders”, also known as “legal volunteering orders”. These will allow a party who has been represented pro bono to be awarded “expenses” after successful litigation. The existence of such an order might lead to an increase in settlements (where currently someone facing a pro bono represented party does not need to worry about the non-existent costs when negotiating a settlement) and, where settlement has proved impossible, an opposing party will no longer benefit from an accidental windfall.

Any money recouped can then go towards a worthy cause. This was explored in an article I contributed to the Journal of the Law Society of Scotland, available here. In the discussion about these devices, the issue of which charity might be nominated by the Lord President to receive sums from pro bono expenses orders was raised. The English and Welsh model seemed to be popular: there, money is paid to the Access to Justice Foundation, who will then normally remit 50 per cent back to the frontline agency who obtained the order, with the other 50 per cent being allocated to other worthy projects. Whilst one existing Scottish charity was mentioned as a possibility – the commendable Lawscot Foundation – it was queried whether a more direct access to justice charity might be more suitable. There may be discussion around this to follow in the future.

The final speech of the day was from Alison Atack, the new president of the Law Society of Scotland. In her closing address, she pointed out some striking figures about those in Scotland who can’t get access to legal support, and pondered what any future system for legal support might look like with reference to the “unbundling” approach the Dutch are undertaking for their legal aid. Her talk gave much food for thought and also some inspirational words for the law clinic sector.

The last act of the day was to note that the next conference in the summer of 2019 will be at Edinburgh Napier. You can watch for updates about that and keep an eye on the future activities of the network by following @SULCN on Twitter.

Thanks to everyone who contributed to the event, particularly Liz Comerford and the team at the University of Dundee for hosting and the Law Society of Scotland for its sponsorship. Tweets from the day can be found via the hashtag #SULCN or here.

Elizabeth Comerford (L), Alison Atack and Malcolm Combe