The Scottish University Law Clinic Network Conference 2019, and a note from the outgoing Chair of SULCN

On 7 June 2019, the eighth annual conference of the Scottish University Law Clinic Network (SULCN) took place at Edinburgh Napier University. A Twitter thread of the day is available here. Thanks to all who attended, to the speakers (namely 1) John Mulholland, the President of the Law Society of Scotland, 2) Robin Burley and Lindsay Burley of Mediation Scotland, 3) Barry Nichol and Alun Thomas of Anderson Strathern Solicitors, and 4) John Sturrock QC of Core Mediation), to the organising team at Napier, and to the Law Society of Scotland for its support of the event.

I don’t have much to add to what was tweeted, save to quickly note that the collegiaty and camaraderie of the day is always very welcome, and it is that collegiaty and camaraderie which reminds me both why the network was started and why some players in the Scottish law clinic sector have been keen to keep the network going. SULCN also has a certain missionary function, in terms of getting the law clinic message out to all the airts and pairts of Scotland, and it serves as a great way of sharing knowledge and avoiding the need to reinvent the wheel as the inevitable student churn churns: for example, there was a discussion about the tie-in between clinics and social work, and the one saddo/enthusiast who has been to all the SULCN conferences (me) was able to say “we covered that in our 2014 conference” (digested here). There is also the chance to share current practice and expertise: for example, when law clinics and mediation was being discussed, representatives from Dundee and Strathclyde were able to say “this is what we do with mediation”, and I was able to say “does anyone remember the work Margaret Ross, Douglas Bain and DTZ did at Glasgow and Aberdeen Sheriff Court?” (See here.)

2019 also marked three years since I assumed the role as Chair of SULCN, and I felt this moment was an appropriate one to step back and let someone else take the reins (assuming there was someone willing to take those reins). Retirement by rotation has its merits, and all that. The person who expressed willingness to assume the role of Chair when I told clinic contacts of my stepping back plan was Rebecca Samaras of the University of Edinburgh. Fortunately, all the delegates were more than happy with this handover of the reins. It was not a complete handover though: as things stand, I am honorary secretary, which basically means I still have the keys to the Twitter account. I will say no more about the future direction of SULCN for now though, as I don’t want to be the annoying person who leaves an office whilst trying to dictate to a new office bearer what should happen. That seems quite enough from me for now, but do stay tuned for further law clinic updates either from Rebecca, me, or indeed other SULCN contacts.

MulhollandSturrock

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Clinics and SQE – what next? Some conference notes about the new route to qualifying as a solicitor in England and Wales (mainly from a law clinic perspective)

On 5 June 2019 I attended an event at Coventry University entitled “Clinics and SQE – what next?

To the uninitiated, at least two questions flow from that title. What is SQE? What does it mean for clinics? There might be a further question for some who are properly new to all of this, namely: what is meant by clinics?

SQE stands for “Solicitors Qualifying Exam”. SQE is a big deal for any of our friends in England and Wales who are concerned with legal education. Two quickfire clarifications. 1) For ease I’ll just say “England” rather than “England and Wales” as shorthand from now on, but stay tuned for another Welsh-interest point. 2) Please note I use “concerned with legal education” broadly: naturally there are those who provide education, which might be thought of as my main interest, but of course there are also those who participate in legal education, and also those who want to benefit from educated individuals (i.e. employers, but also society more generally).

SQE 1 and SQE 2 will soon – it seems – be playing a “gatekeeper” role for access to the legal profession down south, albeit it will operate with the additional requirements of having a certain amount of eligible experience undertaking legal activity in a verifiable way, and also the requirements of probity expected of solicitors, namely to be an ethical and professionally aware soul (the “character and suitability requirements”). After an initial proposed roll out date of 2020, this has slipped back to 2021. Some are still sceptical about the SQE on its own merits, with various points relating to this being touched on below. The vibe I have been getting and continued to get on the day, however, was the SQE train is coming and it was a bit late to try to stop it outright. Anyway, more on all the machinations of the SQE below, including the question of why a Scot might be interested in all of this.

That quickly explains the SQE, but what about the “clinics” bit of the event title? To be clear, this is not some kind of medical dalliance. Clinics – or rather law clinics – are now pretty well-known in legal circles and I have blogged about them previously (see here, and other things tagged under “law clinics”). Basically, clinics are places where law students can: a) offer legal advice and/or representation (under supervision) to those in need who are unable to obtain such support by other means; and/or b) undertake activities that address access to justice issues more broadly, perhaps by community work (including public legal education).

Don’t just take my word for what clinics are about though. There are representative bodies that explain law clinics better than I have, and one of them – the Clinical Legal Education Organisation (CLEO) – had its AGM at Coventry on the day of the conference. I am a trustee of CLEO, and there was also a trustee meeting.

The trustee meeting and AGM provided two reasons for me to go to Coventry. Naturally, I don’t want to bore my blog followers with the fine detail of the governance of CLEO, but I will take the opportunity in this post to set out some of the discussions about my other reason for attending, namely to find out about the acronym that is gloriously monosyllabically rendered as the phonetic “squee” (which sounds like the kind of noise a child would emit whilst having lots of fun in an Enid Blyton-esque way, before drinking lashings of ginger beer).

Before doing that, I’ll explain what this might mean to a Scot, and indeed to this Scottish writer. A first point is that the University of Aberdeen – like a few other Scottish law schools – offers English law qualifications. Another point is that what happens in the larger jurisdiction of England might have an impact or at least an influence on the direction of legal education and training in Scotland. Don’t get me wrong, this is an issue that periodically arises in Scotland – with discussions being instigated either by the regulatory/professional body (2017), by politicians (2018), or as part of wider review of legal services triggered by government (the Roberton Review, 2018 – PDF here). It’s just that whenever the biggest jurisdiction in the UK does something this can have a ripple effect elsewhere, in terms of copying what is seen to work or being cautious over what does not. A further point is that what the (larger) clinic sector does in England is of more than passing interest to the (smaller) jurisdiction of Scotland, and if the clinic sector down south is moving and innovating, the question of whether Scotland should also innovate is almost entirely independent to the reason for England’s innovation.

Returning to the question I omitted from the above, what does it mean for clinics? A few things, and that was the central theme of the conference. Here comes the main thrust of the blog post accordingly, and what follows is a post in my occasional “data dump” style, presenting my notes in semi-processed form. If you’ve already got this far in this post, you are perhaps a bit interested and might be as well to read on. If you’re a bit doubtful though, be advised that a) this may not be a rip-roaring read for everyone, b) I probably won’t form any firm conclusions, and c) I might be horribly parsing or paraphrasing other people’s views here. Anyway, here goes, in roughly chronological order from the day. (Also available for those who want to supplement or replace my blog post with more bitesize chunks is my Twitter thread from the day, here).

Clinics and SQE – what happened?

The day itself began with the CLEO AGM, which featured a quick report about what CLEO had been up to during the year, its website, a discussion about what clinics might do in relation to the current climate challenge, and governance matters. The governance matters involved 1/3 of trustees stepping down in line with the CLEO constitution (including me), those wishing to be re-elected being re-elected (including me – phew), and new trustees being assumed. Then the first of the day’s panels began.

Panel 1 – SQE, Law Schools and the role of clinics in legal education

[Before setting out what was discussed, I will offer one point on the title of the panel. No criticism of the title is intended, I stress, which was absolutely fit for the purpose of the day, it is just that it might be worth noting that there is a healthy amount of literature on what role law clinics can play in legal education anyway, not least in the open access journal the International Journal of Clinical Legal Education. This post does not go into any of that (although I do touch on it in my 2014 article in The Law Teacher, and there has been more recent analysis of this in an article by Stephan van der Merwe in the Stellenbosch Law Review (“A Case Study in Advocating for Expanded Clinical Legal Education: The University of Stellenbosch Module” 2017 28(3) Stell LR 679-701)). Instead this post – much like the event – uses SQE as both the springboard and the setting for the discussion.]

We were welcomed by Stephen Hardy (Head of Coventry Law School). He began with the wistful observation that clinic had developed somewhat to what it was when he was younger, namely something that you did on a Wednesday afternoon if you were rubbish at sport. He introduced a panel of Julie Brannan (from the Solicitors Regulation Authority, aka the SRA), I. Stephanie Boyce (from The Law Society [of England and Wales], but speaking on the day as a consultant), and Professor Elaine Hall (Northumbria University). Stephen played chair for that session, and was ably supported on the day by Alan East (also Coventry) and Lucy Yeatman (Liverpool). It was also observed early in proceedings, I think by Stephen, that changes to the curriculum are not necessarily solely bad, and that they could properly be designed to change and challenge us.

The panel member to speak was Julie from the SRA. For Scottish readers, it is worth recalling that there is a regulatory and professional representation split in England: the SRA is in charge of regulating the profession, and the role of representing the profession falls on the Law Society. In Scotland the Law of Society of Scotland retains the regulatory role, whilst also representing the profession.

The SRA is pushing for route to the profession reforms in principle and is now seeking implementation in good time. Julie noted the new system envisages everyone who qualifies must have a degree or equivalent, then SQE 1 (knowledge) then SQE 2 (skills), then two years of qualifying work experience (QWE, gloriously phonetically rendered as “quee”, details of which can be found in the regulations on this page), and must also satisfy the character requirements. She stressed there was no particular order (so you could do SQE 1 after SQE 2, a point that was clarified in the Q&A) all that mattered was that students had all of those by the time they applied to get a practising certificate and on the roll of solicitors.

Why was this reform being brought in? The main reason, which was returned to a couple of times, was a hope to remove some of the barriers in the current system, in terms of cost and availability of training contracts. Regarding the cost, it was noted SQE might weigh in at £3000 – £4,500.

Another related point was the conversion rate of the present route to qualification, which involves the vocational qualification called the Legal Practice Course (the English equivalent to the Scottish postgraduate Diploma in Professional Legal Practice). Apparently where a candidate is financed through the LPC by a law firm, this brought a conversion to solicitor of 95%. When trying another route (such as support from the bank of mum and dad), the conversion rate was 70% or so. The gamble of doing the LPC without having a contract was raised.

What would the new qualification route mean for clinics? Julie noted working in a law clinic might be within the umbrella of what can contribute to qualifying work experience – i.e. under the supervision of a solicitor (that is to say a solicitor on the roll, not necessarily in practice). It was also noted that QWE could be built up in “no more than four organisations” – and a law clinic could included as an overarching single organisation (that is to say, you might also include within that law clinic allocation some placements led by the uni (i.e. you don’t use up another one of the four)).

The second speaker, Stephanie, mentioned that the Law Society agrees in principle with the SQE, but stressed she was speaking for herself not the Law Society. Mind you, she also mentioned a concern for the Law Society of England and Wales, namely that Welsh language resources for the assessment might not be available in good time, which is pretty important as there is a legal need for this to be the case. As someone with an interest in minority languages, this was more than a bit interesting to me – any remaining doubts about the SQE aside, it might be provision of materials in Welsh that slows the roll out down.

Elaine was the third speaker, and she noted that she remained of the view the SQE was not a good idea, and that she had not given up on the idea of stalling or perhaps even scrapping it. I am conscious I don’t want to put words into anyone’s mouth, so please count this as paraphrasing. Anyway, as part of her presentation, she took some figures from the SRA website (a website that she noted was lovely and thanked the SRA for that), and basically noted that with ~192,000 solicitors on the roll, of which ~147,000 are practising, where were all the current law students going to fit into this irrespective of the SQE? Based on figures from the Law Society, 2017/18 saw 18,850 UK students enrolled on undergraduate courses, and then there are roughly 6,000-7,000 new members coming on to the roll in a year, so there might well be fewer law-type jobs than that. (Fewer than half of law graduates will have even a law-related job, never mind be a barrister or solicitor.)

Returning to the SQE, she then went all Tolkien as a means to critique the cult around the new expected journey: one exam to rule them all, one exam to find them, one exam to bring them all, and in the darkness bind them. (It works better when “ring” and “bring” rhyme and scan, but kudos to Elaine as I geekily enjoyed this.) She also wondered whether all the problems with the present system that were cited really were problems (in passing noting that she had not ruled out a few strategic Freedom of Information requests to interrogate certain matters a bit more), and wondered if we were spending lots of time and money to replace something that is basically working.

That broadside towards SQE aside, what about SQE and law clinics? In her view, [qualifying] work experience in clinics cannot just be aimed towards ticking SQE boxes, clinical work should also be about making people better, more self-aware, more ethical, and so on. That is to say, clinic experience should be a more holistic affair, and not ousted by technical QWE requirements.

If they can align though, all well and good, but… how much in the way of clinical experience could be given over a three or indeed four year degree programme? Taking two years’ experience as 3,248 hours (although Julie stressed this number was not regulated by SRA – this being the two years FTE equivalent from the UK Government, and the SRA says they won’t count hours), how much could be done? Taking her amazing, lovely uni with its developed clinic and also including potential summer work and everything else students might do for a clinic in their free time, Elaine reckoned students could still only realistically get to 50% of the hours. Someone would still need, for example, a handy uncle with a handy law firm to top up the hours. She also feared that promising loads of hours could open unis/clinics up to advertising problems, and the last thing she wanted was for the ASA to be after her for promising more hours than might be delivered. Julie did respond by noting the hours requirement was permissive rather than directory, and then the discussion opened up into a Q&A discussion.

One big question was “How will this system actually differ?” It was speculated that people coming to the legal profession from other professions might do things more quickly than they would under the current system.

On what the system will mean for supervisors (and clinicians), it was asked whether barristers could sign off, and the answer was “no”. Why? Because the SRA cannot regulate barristers, so barristers making any kind of dishonest declaration could not be chased by the SRA.

What does a solicitor need to do (in relation to QWE)? A solicitor needs to make an honest declaration, and not necessarily make a statement about reaching a certain competency. The supervising solicitor simply says they have had the OPPORTUNITY to reach those standards, and those standards would be finally signed off by SQE 2.

The solicitors in the room asked for further details: if it is not an exact hours issues, and not a competency point, when will a signing off solicitor be pulled up by the regulator? The example given was a solicitor saying (for example) a student has done 3 months instead of 1.

What else might allow for QWE to be topped up? a) A formal training contract for a year. b) Acting as a paralegal. c) Involvement with suitable unregulated services.

This being so, the point that was returned to is that there will still only be 6,000 or so jobs for people navigating the system, notwithstanding these changes. Another point was raised about whether Magic Circle [big London] firms would even be interested in what is happening at Clinic, or indeed QWE as a whole: would they not just put people through their own training regardless?

Returning to clinics as a whole, one delegate noted SQE doesn’t harm what clinics are or should be doing, so whilst people may still have wider reservations Clinic still can have a role. Another delegate later in the day stressed SQE would not change her clinic’s focus on access to justice. That being said, the potential danger of a uni and its clinic(s) coming a cropper in terms of marketing was returned to, and there was a point made about the huge burden of record keeping that could/would emerge. One point that would be relevant for many clinics though was that SQE1’s knowledge requirements did not cover some key clinic subjects: for example, there was no social security law or family law in SQE1 (with “company and commercial” being the only topic that is a non-reserved solicitor area that SQE1 covers). This might have the danger of skewing clinic activities in some cases.

In terms of other comments made as this panel concluded, one person rather pessimistically noted they felt the new route was but a “paint job with a new name” and was not actually about increasing access to the profession, with it also being noted that the whole SQE innovation brings together the worst stuff of the LPC and/or the Law Society finals. That being the case, another noted the SQE was never going to be able to solve everything, so maybe people were being a bit too downbeat. A final point to make here is that this SQE system is but the starting point, and it might tweaked in future.

That brought the morning session to a close. I did sneak a quick question of Julie from the SRA over lunch though, which was probably only relevant to me in the room: “could QWE be undertaken in Scotland?” Answer, yes, but the person signing off on it would need to be regulated by the SRA (and naturally the QWE undertaken outwith England would be less likely to be purely English law, so some suitable discussions about differences between (say) Scottish and English positions after a case would maybe be needed to make such QWE worthwhile).

Panel 2 – Social Justice and SQE

The afternoon featured another panel discussion, with the clinicians outnumbering the SQE-ers on this one. The one SQE-er, so to speak, in this case was not so much someone who had been sent out to bat for SQE on the day, but rather someone who had been involved with its planning yet was not involved in its implementation. This was Crispin Passmore, a consultant who knows the legal market well and who previously ran a successful law centre in Coventry, albeit he is not a lawyer himself. Katherine King (Central England Law Centre), Stephanie Jones (University of Central Lancashire) and Elizabeth Fisher-Frank (Essex Law Clinic) brought current pro bono perspectives to bear on this discussion. They spoke variously about:

  • outreach work in particularly deprived areas (including areas where the clients could not even afford to get to a university campus);
  • the potential for a commercial law clinic (and how, despite potential criticisms that this could be a distraction from “at the coalface” access to justice activities, it in fact perpetuates access to justice by sustaining the economy at a local level, plus also providing opportunities to three student interns with 10-month positions, who in turn provided client continuity over their period of office); and
  • placement models (linking Coventry with the Central England Law Centre, with a connected course featuring a reflective diary).

With those situations in mind, one of my favourite observations of the day was made: clinics help students to think like clients rather than like lawyers. That is to say, when someone presents with a situation that boils down to “I have X legal problem”, DON’T just tell them what the law says about X, rather tell them what they need to do.

What about funding for clinics? In the brave new SQE world, there may be a need to come up with further justifications for a clinic’s existence. Sure, budgets might get squeezed but teaching still needs done, and clinics can be part of that. That said, returning to a theme from earlier in the day, would students be driven to complete clinic tasks that are covered in the SQE2 test, with pressure from (for example) the market on unis to facilitate that?

Once again, a response to this proposed incarnation was this is still a pilot phase, so it could still be possible to make a case to tweak this in the near future. It was also noted that the whole reserved activities point is a tricky and almost a political one anyway, with the history of reserved activities being a bit arbitrary, so perhaps there is a danger of conflating issues here.

Returning to the overall clinic point, how does the clinic sector convince people “we need more not less” in terms of clinic? Can the views of employers play a role here? Can the importance of clinics be stressed to uni administrators?

Then came a pretty interesting question, namely: “would clinics end up competing against each other?” I suppose this might happen when QWE in one clinic ticks boxes and seems sexier than QWE in another, but this can quickly be countered by the fact this is probably unlikely to be so much of an issue in and of itself where demand outstrips supply, and that does seem to be the case in (parts of) England at the moment.

There was also brief discussion along the lines of whether there might be scope to offer commercial advice to people who might even pay a bit for that, and then feeding back proceeds into social welfare law work. At least, I think that was the discussion, I confess I was distracted as I was trying to frame a selfish question in a way that would interest the (otherwise non-Scottish) audience.

My starting point was of someone who was not directly affected by SQE in relation to Scots law teaching, but I asked the panel to imagine for a moment that Scotland is to embark on its own SQE-type journey. What should the Clinic sector in Scotland do in such an exercise? This was particularly aimed at Crispin, who I think it was fair to say was not minded to fight yesterday’s war in relation to what SQE entails in England. His tip for Scottish clinics in such a notional exercise was to engage, and to engage now (in the context of the Roberton review), bring evidence in, and bring the benefits of clinic (for all) to the fore. He also noted that consultation does lead to changes, both in terms of people making sensible suggestions that lead proposals to be changed, and also because a duff consultation can lead to a judicial review.

Anyway, other than a quick discussion about the confidentiality of clinic work in the context of QWE (which people thought could be managed) plus some later workshopping about clinics and QWE (which is best explained by way of the slides included in my aforementioned Twitter thread, here), that was the end of the main SQE chat on the day. There was then some further discussion about what clinics can do in relation to climate challenges, with one delegate noting the possibility of helping community groups who try to bring in local food solutions or recycle old furniture, some recollections of a discussion at the 2017 IJCLE conference in Northumbria about students taking action in relation to a local emitter (see this tweet buried in a mega-thread here), and me making a quick shout out to the SULU initiative in terms of helping local communities overcome land-based barriers to sustainable activities, and wondering if there might be an equivalent down south relating to the Localism Act 2011 and its assets of community value.

Conclusion

And then proceedings for the day finished, much like this blog post is about to finish. We did also have a CLEO trustees’ meeting, but as promised I won’t bore you with that.

Well done if you have made it to the end of this post, and (less flippantly) well done to Coventry and the team at CLEO for putting on such a useful event. I certainly left the day better informed, and in turn I hope this blog post might just play a part in leaving you better informed. If you have any questions or thoughts on any of this though, please comment below or get in touch with me in some other way.

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Lord Lovat’s Land Access Lament

I’ve been interested in access to land for long enough now that my friends, online contacts, students, and even occasional randoms bring access-related signs and placards put in place by land managers or news reports of access disputes to my attention. I suppose I’m flattered; either that or I need to get a new hobby.

Anyway, this happened this week. An access dispute with all the elements of a good story was reported on the BBC: “Scottish aristocrat” + “popular riverside walk” + disgruntled non-aristocrats = story. My phone duly buzzed with notifications about the tale; thanks, access fans.

BBC News Lovat

A screen capture of the online BBC News report

The prize for earliest tip off actually goes to my colleague Scott Styles though, who passed me a copy of an article in the Daily Mail a few months ago.

Daily Mail Lovat News

An extract of the Daily Mail coverage, including a picture of a sign (more on the validity of its two prohibitions below) and a the picnic area.

I’m not clear what has triggered the new attention: perhaps it’s the “parking tickets”, or maybe things are coming to a head in a different way, but no matter.

What should we make of all of this? As far as I’m aware, I have never been to the place in question. I think “Lord Lovat’s Lament” is a cracking pipe tune (partner it with “The Garb of Old Gaul” – you’re welcome), but there my personal insight on all things Lovat ends. Not knowing the details of the site, the personalities involved here, or what has taken place means that I can only offer a distant view on matters. This is hopefully a good thing though, as I appreciate access disputes can be both emotive and contextual and it is best not to wade in with your size tens unless you really do have a full picture, so to speak. I will accordingly restrict this post to a few general observations about the points raised in the story, relating to: a) parking; b) privacy; and c) the possibility of a circular right of way.

Before doing that, I will note that the BBC story makes reference to ScotWays, the access charity that, amongst other things, maintains a database of public rights of way in Scotland. The route in question is not amongst its records, meaning that the route cannot, apparently, be used by the public for passage as a public right of way. That is not the end of the story though, as public access to land may still be possible by another legal means. (And furthermore, even routes not so recorded can still be rights of way, if they have been properly established but not yet declared as such, but that’s another story.)

To quickly explain, there are two main legal methods for the public to take access to land in Scotland. These are a) specific public rights of way that offer passage along a particular and recognised route, and b) the right of responsible access that flows from a law passed by the Scottish Parliament relatively recently. There may be other ways to take access (for example, the more aquatically minded might even be able to use traditional rights of access to navigate on the River Beauly itself). This post will focus on rights of way and the right of responsible access though, starting with the latter regime (which is of more general application, albeit subject to certain important exceptions).

Needless to say, this introduction is but a brief glimpse at this potentially complex area of land law. If anyone is interested in reading up on this more generally, I will politely steer you to the recently published book, The ScotWays Guide to the Law of Access to Land in Scotland.

Parking

The Land Reform (Scotland) Act 2003 gives people a right of responsible access to land for certain purposes (aka the right to roam). It does not confer a right to drive a motor vehicle over someone else’s land (but there is an exception for certain vehicles designed to aid an individual’s mobility when such a vehicle is properly in use). It does not confer a right to park a motor vehicle.

In the BBC story, the point about car parking is described by one commentator as a problematic area. I know exactly what he means, but in a way it is not a problematic area in statutory terms. The statute gives no right, so the position is relatively clear. In an ideal world, access takers will seek permission from the land owner before leaving a car unattended for any length of time. Also in an ideal world, all persons would take the points about parking made in the Scottish Outdoor Access Code on board. The Access Code asks that cars are not parked in a way that obstructs the access of others or in a field with livestock. This is all sensible, but access takers should be clear that simply following these common sense rules does not mean you then automatically have a right to park in line with those rules. That said, a responsible land manager would hopefully take a lenient approach to car parking that kept the Access Code in mind in a way that was not too much of an imposition on land management, which would be broadly in line with the duty of responsible land management found in section 3 of the legislation. Designated parking areas and appropriate signage might be part of this approach. (Private parking schemes are another kettle of fish entirely. I have written about private parking enforcement before and there is the possibility of further legislation in this area. That is enough about parking for now.)

Land excluded from access rights: privacy around a home

I do not know how close this “popular riverside walk” goes to a place of human habitation. If it does go particularly close though, such that it falls within the exception to statutory access rights for domestic gardens (found in section 6(1)(b)(iv)), there will be no statutory right to walk or take part in recreation in that area. (Separately, if it goes into the curtilage of a building or buildings – that is to say not within a building itself but into what might be thought of as the immediate orbit or an open area that is particularly associated with a building or buildings, such as a courtyard, that too would be excluded.)

How do you find out if the land is excluded? Without a court action or some kind of enforcement action, there is no definitive way to do so. You might look to earlier precedents, of course (perhaps the recent Manson case, or older cases like Gloag and Snowie), but if these are not clear then it would take someone becoming a bit bored of toing and froing and eventually applying for a declarator as to whether the land is subject to access rights under section 28 of the 2003 Act, at which point a sheriff would rule on the matter. Failing that, the access authority (i.e. the relevant local authority or national park authority) might in more flagrant cases take enforcement action under section 14, seeking to remove any impediments or disincentives to access. My guess from the news reports I have read is such enforcement action is not imminent in this case.

For the purposes of this post, let us now assume the land is access land. What could be done on the land? A nice walk would be possible. So too would recreation, including a picnic. As such, the sign that says “NO PICNICS” might be a bit too bold, if it is seeking to exclude responsible recreation from areas that should be access land.

As noted above, this will all be very contextual, so nothing further can be ventured from this distance. That brings us to another point, about the separate access regime that might apply for passage (and passage only): is this a public right of way?

A circular public right of way?

First things first, it is worth remembering a public right of way can exist over land that is not access land in terms of the 2003 Act. So the discussion above about excluded land is not relevant here: a right of way could go through a farm steading or through someone’s domestic garden, for example.

Returning to this scenario, the BBC report has a quote from a Highland Council spokesperson, and this person either knows the score in this legal area pretty well or was well-briefed. For the purposes of this post, here is the relevant quote.

The River Beauly – Lovat Circuit is not on the Catalogue of Rights of Way maintained by Scotways, no-one has provided the council with evidence that any of it is a public right of way and, as a circuit, it is unlikely to meet the requirements of a public right of way.

There are a number of criteria that must be met before you can have a public right of way. For example, it must follow a more or less defined route, and the usage of that route must have been established by the public rather than by essentially private (i.e. neighbourly) purposes.

Public rights of way also go places. They go to places the public have resort to and access to. They start at a public place and they finish at a public place, and once so established anyone using the right of way can use it for passage along its whole length, or alternatively just use part of the route (by joining it somewhere along the way).

So can a right of way go back to its starting point, or are circuits not likely to meet the requirements? Whilst I accept that a circuit might be less likely to meet the requirements than a linear route that clearly goes from one public place to another, and with due respect to the Highland Council spokesperson as this is not an easy point, I am not sure a circuit can be completely ruled out.

As noted at page 104 of the ScotWays Guide, it has been suggested that a circular route can constitute a public right of way. This, I confess, is not original Combe wording. It existed in the 2006 version of the equivalent ScotWays Guide (at page 27). (If I am sticking my neck out a bit here, I am happy to be in the company of Roddy Paisley. We can be embarrassed together if it ever comes to court and goes the other way.) I did make some changes to the text though, which might inch towards a circular right of way.

The innovations in the new edition are: a) an extra reference to note Lord Reed’s important view that a cul-de-sac might even be a right of way; and b) a subtle change of the definition that occurs at various points in the text such that it no longer says one public place to another public place.

There are counter-arguments. Of course, I fully accept that rights of way are fundamentally about going places, and the right is for passage and pretty much nothing else (so stopping for a quick snack when on a right of way can just about be allowed and still be thought of as passage, but a game of rounders or pitching a tent on a right of way might be pushing it, and you would be back to relying on responsible access (which you could only do if the land was access land), and you would separately need to not get in the way of others using the right of way).

Returning to the key point about passage, does passage imply the route must go somewhere else as compared to where it started? Lord Reed’s observations in the case of Hamilton v Dumfries and Galloway Council (No. 2) [2009] CSIH 13 about a cul-de-sac might suggest an “out and back” journey is fine, so in a way you are not making any progress, and the same might apply to a circuit.

As I say, this is not easy. Some might even argue that a right of way circuit, so to speak, would in fact still need two public places (say at two ends of a loch, and separate routes between the two on both banks, making a circuit to all intents and purposes). This blog post is already pretty lengthy so I will curtail my meandering at that. Suffice it to say though, I would be very interested if a question like this ever made it to court.

Back to parking

One final point about public rights of way, which links back to the original discussion about parking and might be relevant if a right of way was ever established here. The recent case of Kolhe v Robertson [2018] SC ABE 43 (which I blogged about here) confirms that the parking of vehicles on a right of way is not permitted, but acknowledges the possibility of parking at a terminus in some circumstances. The particular circumstances in that case involved a terminus that was a pier. Now, I don’t want to make too much of that sheriff court decision, both in terms of judicial hierarchy and the circumstances of that case, but if there ever was to be the establishment of a right of way in this case (which I offer no comment on here), I can imagine flying this particular kite about car parking would be a possible line of argument.

In other news about access to land scholarship

That is enough about this particular scenario. I now ask that you please forgive a bit of a personal dalliance, albeit it is still on topic.

I’m delighted to note that the new issue of the Edinburgh Law Review has a book review of the ScotWays Guide, by Professor George Gretton. Fortunately, it’s a positive review. For those not completely au fait with all things Scots property law, George is something of a legend, so it goes without saying I am absolutely delighted to have received his seal of approval. As an analogy, it’s a bit like Ginger Wildheart dropping me a line to say he likes my new album. (I don’t have a new album, but if I did I would like Ginger to like it. In other news, I absolutely love his new album, but I digress.) George’s review can be found here (£), and for those without access to the full review (sorry) here is a photo of a short extract to prove that it does exist.

EdinLR Book Review

An extract of George Gretton’s book review.

Posted in Law, ScotWays, trespass | Tagged , , , , , , , | 2 Comments

The Tenement Management Scheme, scheme decisions about secure entry systems, and a smattering of teaching nostalgia

The title for this blog post was something I mulled over for a while. After thinking about this for far too long, I opted for what can fairly be described as a boringly accurate title. So be it. It’s my blog, and all that. Just in case this isn’t clear though, what follows is a post about a minor yet potentially important point about the legal position in Scotland for the management of tenement property (aka condominium ownership, basically where you have flat/apartment units sharing a building), and a hopefully nice story about the teaching equivalent of the circle of life.

I’ll start with the law element of the post first. Where a number of owners share different bits of a building (and here I don’t mean co-ownership, I mean people owning self-contained 3D segments, where some of those segments may well be supported by a subjacent 3D segment owned by someone else), there needs to be a way to manage and maintain the building sensibly. In Scotland, the title deeds of the various properties can and often do make suitable provision for this, using the legal device of title conditions to do so. Sometimes the people who prepared the title deeds of the various properties may not have catered for such management and maintenance. What happens then? In such cases, a statute called the Tenements (Scotland) Act 2004 rides to the rescue.

In Schedule 1 to that Act, there is something called the “Tenement Management Scheme”. The TMS (in its own words) “provides for the management and maintenance of the scheme property of a tenement.” (The term “scheme property” is defined in the legislation, and basically it means the bits of the tenement that the various users of the property will be keen to ensure are shipshape.) Under the TMS, certain decisions relating to a tenement can be made by a majority of owners of flats in that tenement. The TMS was introduced to smooth over a decision making process which was occasionally difficult under the old (default) common law.

Rule 3.1 sets out the decisions that can be made. This operates to allow the owners to, for example, carry out maintenance to scheme property, arrange inspections of scheme property, and perhaps appoint a manger to look after the property.

Rule 3.1(f) allows for a scheme decision to be made “to install a system enabling entry to the tenement to be controlled from each flat“. In common parlance, these are known as “secure entry systems”.

In many tenements, every single flat will be accessible by the same common entry. This is not always the case though, and there are a significant number of tenement properties in (for example) Glasgow’s west end or what might be thought of as Georgian or Victorian Edinburgh where there are “main door” ground floor flats, served by their own exclusive door.

Here is an example. Suppose for the moment we have a tenement with four inhabited levels. On the ground floor there are two main door properties and also an entry door to a common close (in the Scots sense of the word “close”). On the first, second and third floors there are three properties, with all nine of these accessible from an internal stairway.

The two main door flats in this example are as much a part of the tenement as the others. But when it comes to access, they fly solo. Turning to the third and partially-shared entrance route to the tenement, let us make the reasonable assumption that the nine properties without an exclusive main door wish to have a suitable way to regulate access to the close. The two main door ground floor flat owners have a far less direct interest in this shared close though, as they can regulate access to their respective properties themselves. (A tenuous argument might be made that the amenity of the surrounding properties will be improved by access to the stairway not being a free-for-all, but then again any neighbours across the road or in a next door building would also be interested in the general amenity of the area.)

Should the nine shared access property owners in my example be able to bounce the two main door owners into a decision about a secure entry system, on the basis of a 9 out of 11 vote? Or to frame it differently but still with important implications in a slightly amended way, would five of the shared access owners be unable to make a decision to install a secure entry because they have only gathered 5 from 11 votes (when, discounting the two main door proprietors, these owners would have had a slim majority of 5 out of 9)?

This is tricky. Dealing with the issue in what seems like a fair way involves contortions in statutory interpretation about what is meant by controlling entry from “each flat” (per the wording of 3.1(f)), or perhaps seeking a contextual interpretation of the word “flat” (under section 29). Either way, the law is unclear and a strong argument can be made that it is worth revisiting the TMS to put the matter beyond doubt.

That concludes the main legal analysis. Here is where the post takes a bit of a nostalgic turn.

The law here has been unclear for a little while. And it was unclear just under ten years ago, when I was tutoring the related subjects of property, trusts and succession to students studying for their LLBs at the University of Edinburgh. (For information I lived and worked in Edinburgh from late 2006 to early 2011, and during term time in several academic years I tutored for a couple of hours a week. I was grateful to the team at the University of Edinburgh for this opportunity (Professor Ken Reid and Dr Andrew Steven were the class leaders at the time, as I recall) and my then employer Tods Murray for allowing this to happen. It was a great way to stay on top of current scholarship and also to keep my oar in at teaching, which might just have helped me secure an academic job later in life.)

Enough about me. I had many strong students in my tutorial groups. Looking back, one student in particular stood out, although I must confess I would have been hard pressed to marry up his name to his face as the years passed after teaching him, a point evidenced when I pretty much literally bumped into him at a meeting of the Stair Society (a Scottish Legal history society I used to sit on the board of). Anyway, in the three formative (diagnostic) assessments that students performed for the courses at the University of Edinburgh – exercises that the tutors marked – this student scored 25/25, 25/25 and 24.5/25. (I don’t know if he has ever forgiven me for that half mark. I can explain, honest, but that is for another day.)

How do I recall this in such amazing or indeed creepy detail? It transpires the student was a bit of a hoarder and/or had a notion that a future academic job was for him, and this turned out to be the case when the School of Law at the University of Aberdeen offered a lectureship to Dr Alisdair MacPherson. Apparently at some point in his sorting out of papers during his move to Aberdeen, he (re)discovered his marked tutorials, complete with my feedback, and I was thereafter confronted with them. Thank goodness I didn’t say anything too critical!

How does this link to the topic under discussion in this blog post? Oh, I’ve just nicked the idea and much of the analysis hook, line and sinker from one of Alisdair’s perfect assessments, when he picked up on the point about main door flats and the TMS. Credit is therefore due to him. Photos or it didn’t happen, you say? Well, for that crowd here are the photos. (Arguably, Alisdair sums up the issue all those years ago better than I did in this post.)

The boy done good, in the end. I’m happy to have played a small part in his legal education, and even more happy to have him as an academic colleague now.

The teaching circle of life continues.

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Scottish University Law Clinic Network Conference 2019 – 7 June at Edinburgh Napier University

The eighth annual conference of the Scottish University Law Clinic Network (SULCN) will take place at Edinburgh Napier University on Friday 7 June 2019.

Details of and registration for the event can be found on this Eventbrite page.

Thanks to the students at Napier and to Richard Whitecross and his colleagues for hosting the event and to the Law Society of Scotland for supporting the event.

Posted in Access to Justice, Law Clinics | Tagged , , , , , | Leave a comment

Access to land and access to justice: an update from SULU

Last year, I was involved in the launch of an initiative called the Scottish University Land Unit. As detailed at some length in an earlier blog post, this was and indeed is designed to partner the skills and enthusiasm of law students with the land law needs of Scottish communities in appropriate circumstances, with the Community Ownership Support Service (COSS) of the Development Trusts Association Scotland (DTAS) playing a matchmaker role.

What has happened since then, I hear you cry? You can read an update over at the DTAS website here.

Posted in Access to Justice, Land Reform, Law Clinics | Tagged , , , , , , , , | 1 Comment

New book – 4th edition of Residential Tenancies: Private and Social Renting in Scotland by Robson and Combe

If anyone is looking for some light reading about residential leasing in Scotland, there is a new book on the market that could be just the ticket.

The fourth edition of Residential Tenancies: Private and Social Renting in Scotland, by Peter Robson, Professor of Social Welfare Law at the University of Strathclyde, and, eh, me was published by W. Green last month. (I was waiting until I had the physical copy in my hands before blogging about it. Now that I know it really exists, it feels okay for this blog post to exist too.)

It is a bit surreal to be a co-author of this textbook. Without being big-headed, it is a central reference point for anyone dealing with landlord or tenant matters where the rented property is someone’s home. Fortunately, I know I am not being big-headed. This is because I can confidently state I had nothing whatsoever to do with establishing its reputation. To explain, this is the first part of the surreality that emerges for me. I have a severe dose of imposter syndrome. There are many great lawyers and commentators working in this field already, and I was very lucky to have been asked on board to be part of the writing team for this book by such a person. The second part of the surreality is that I used an earlier edition of this textbook when I was an undergraduate student at the University of Strathclyde, and I still can’t quite get over the LOOOOOOK THERE’S ME ON THE COVER thing that I’ve got going on at the moment. Granted, not many people will care quite so much about this book or indeed any Scots law book, so please just take my word for it.

Anyway, away from that personal story, why does the new edition of this book matter? Here is my attempt at explaining matters in less than 500 pages.

Residential lets in Scotland have been heavily regulated by law for some time. Matters have been further reformed by the Private Housing (Tenancies) (Scotland) Act 2016, which introduced a new and, to some, rather revolutionary form of residential tenancy in the private rented sector. (A private residential tenancy – or “PRT” – gives a tenant the right to stay in a rented property in most circumstances – “security of tenure” – from day one of the tenancy, meaning that the landlord cannot recover possession at the end of any given length of occupation where the tenant is behaving and paying rent when it falls due. There is of course more to it than that, but I’m trying to keep this short.) The new textbook is fully updated to reflect this regime, and also takes in the transfer of jurisdiction for leases in the private rented sector from the Sheriff Court to the First-tier Tribunal for Scotland (Housing and Property Chamber). This is an important change in terms of the accessibility of a dispute resolution forum, and could also be important in terms of the dynamic of cases being dealt with; it’s just that we won’t know just how important this will be for a while. Away from these private rented sector reforms, we also report on relevant updates in the social rented sector (which are less profound, but there are a few).

The book is published by W. Green. A bajillion thank yous to the team there for all their efforts and patience.

If this has whetted your appetite, further information is available on the publisher’s website.
Res Tens 4th edn Front

Posted in Property, Residential Tenancies | Tagged , , , , , , | Leave a comment