Scottish Gaelic in Scottish Courts

I’m going to do that thing where I write in English about Gaelic. Three reasons might be offered for this transgression, such as it is, in no particular order.

  1. Gaelic coverage of the issue I am discussing is available elsewhere, notably on the BBC website here and here, on the radio programme Aithris na Maidne (for another 28 days), and (until 19.15 tonight!) on the BBC iPlayer for the BBC Alba programme An Là;
  2. For maximum reach, as there is no denying more people in the world understand English than Gaelic;
  3. For laziness, as my own written (and legal) English is much better than my Gaelic.

Moving to the substance of the blog post, as adverted to in the title and as those who clicked the BBC Naidheachdan link will have gleaned, this post is about usage of the Gaelic language in Scottish courts. The post follows on from a recent criminal court case (on Thursday 31 October), where someone tried to use Gaelic orally at a Justice of the Peace Court in Edinburgh and was bounced in his attempt to do so.

(For clarity, this case was not directly about Gaelic, but rather it came into play simply as a result of someone involved in the case wishing to speak in the language. As regards the case itself, I will let the person involved speak to that, by linking to his tweet.)

Scottish Gaelic and its place in the Scottish legal system is something I have blogged about before (for example, see this post from 2015). This engaged a slightly new issue though: can a Scottish court force a participant to use English rather than Gaelic?

In short: yes, it can.

For this particular case, an interpreter was, it seems, lined up at one stage but for whatever reason was not available on the day. Given there are not many Gaelic speakers in contemporary Scotland who are not also fluent in English (a demographic that is basically only pre-school age children and elderly people who have reverted to their first language), a Scottish court can normally be clear that a Gaelic speaker will understand English, and in this case the court was able to press on notwithstanding the lack of an interpreter (something that would surely have not been possible where a Polish or Lithuanian interpreter had not shown up).

This was described by Wilson MacLeod on Twitter as “Tàmailteach“, which might be translated as “a disaster”. I’ll be a bit more guarded here and note that this is all somewhat suboptimal.

Sure, we know that the person involved could have participated in English, but when language rights are involved that is at best an ancillary point. I also of course appreciate that court delays in a busy court system should be avoided wherever possible. The thing is, Gaelic is not exactly in rare health at the moment. Official opportunities to use the language should be provided. It’s all very nice to allow Gaelic to be used in sheriff court proceedings every once in a while, as happened in 2005 before Sheriff Sutherland in Stornoway, but I can’t help but feeling this episode has highlighted that language rights in Scotland are somewhat wanting when compared to somewhere else in the UK, namely Wales. It took Scotland a while to get legislation about Gaelic on the statute books (see for example this Hansard exchange about a proposed bill in the 1980s), but what we have now – the Gaelic Language (Scotland) Act 2005 – does not enshrine the right to use Gaelic in legal proceedings. That can be contrasted with the right to use Welsh in legal proceedings in Wales (in terms of the Welsh Language Act 1993, and before that the Welsh Language Act 1967).

As Ruairidh Maciver (I declare an interest – he’s a first cousin) noted in his BBC Report, attempts were made to use Gaelic in court proceedings in the 1980s, in connection with the Ceartas campaign. (Anyone wishing to read up on this with access to a law library can find a discussion in this legal comment piece: A C Evans “Use of Gaelic in Court Proceedings” 1982 SLT (News) 286.) It was bounced then as well. Have we moved forward? Are we simply paying lip service to Gaelic?
It is right and proper the Scottish Courts and Tribunal Service has a plan in place for British Sign Language, but should it do more in relation to Scots Gaelic? Based on this particular episode, there seems a strong argument it should.

I’ll leave it at that, but in the meantime I should say a quick “tapadh leat” to Marcas Mac an Tuairneir for bringing this to the fore. I’ll be watching carefully to see what happens next. I confess I am not getting my hopes up.

P.S. As this post “went to press”, I was tagged in a tweet which linked to the relevant Act of Sederunt on the usage of Gaelic. It seems sensible to link to this here.

P.P.S. An earlier version of this post erroneously stated this case was in Edinburgh Sheriff Court rather than a Justice of the Peace Court.

Posted in Gaelic, Law | Tagged , , | 7 Comments

Moving on

I have used this blog to break news in the past. In the main my blog has been a forum for academic lawyering and related pontificating, but I have also dabbled in politics and other areas of interest, and even used the blog to share life-changing news and the related ongoing health challenges then the new normal that followed on from that. The blog has, in varying degrees, become a bit of an extension of my personality. As such, and despite a relative lull in my blogging output of late, it still felt kind of fitting to break some news over a basedrones post. So here goes.

After over eight years at the School of Law at the University of Aberdeen, I have accepted a post at the University of Strathclyde in Glasgow. I start there in a month’s time.

Okay, where do I start with this news? Naturally, I am excited about the move to my alma mater and the city of Glasgow, but I will start with the Aberdeen-side of things. First and foremost, this flit should not be taken as a sign that I am running away from a terrible institution or anything like that. Aberdeen has been good to me, and by “Aberdeen” I suppose I mean the University, the city, and – yes – sometimes even the football team. I have family connections in the north east too. Several people from my dad’s side of the family live in and around Aberdeen. Without hyperbole, it will be a wrench to leave.

On the academic side of things, had I not got the job at Strathclyde I could have merrily continued at the University of Aberdeen and I don’t think anyone would have noticed me being in a wantaway mindset or anything like that. I will always be grateful to those who took a punt on me by offering me my first academic job, and to the colleagues in the School of Law* (see below) and the rest of the University of Aberdeen who offered friendship and support since I came on board in March 2011.

Leaving the city of Aberdeen will also involve physical and mental upheaval. The extended uni community has been good to me, ranging from people in the local bookshop, barber, eateries, and indeed hostelries. Aberdeen Gaelic Choir has been a big part of my life for the past few years, and the unfortunate timing of my leaving the choir when it is in such good shape and indeed just after our first major prize in sixty years is really quite something. (Oh, by the way, we won the Puirt competition at the Mòd in Glasgow this month: yay!) The extended Aberdeen music scene (some members of which I know from actual folk music/piping circles, others I know from just hanging around the Blue Lamp too much) has been great to me too. Then there are a whole bunch of people I would really have preferred not to meet, although having met them I am happy to have them in my life. This sounds a bit opaque, but this refers to the medical team and extended support network I met after my cancer diagnosis in 2013: I wouldn’t exactly recommend cancer, but the cancer community (a strange form of words, I know) has been a strange bonus. As an example, I bumped into someone I now know from ARI at the Aberdeen Beach parkrun the other weekend (yet another bit of Aberdeen life that I will be moving on from). He was timekeeping and I was (sort of) running, and he shouted friendly encouragement as I neared the end. After the event I told him about my planned move and (without wishing to put words in anyone’s mouth) this person who I only got to know through one of my lowest ebbs seemed genuinely sorry to hear I will be leaving. In turn, I will be genuinely sorry to leave.

That being the case, I will indeed be leaving. Why? As noted already, Strathclyde is my alma mater. This is not just a nostalgic move though. I think it is one that can work personally and professionally. As regards the personal, my immediate family stay in Renfrewshire, so it will – mainly – be good to be nearer them. On the job front, I will be lecturing in Scots private law, and with Strathclyde’s established Diploma in Professional Legal Practice team this could involve me stepping back a bit from that side of professional legal education as compared to my current role at Aberdeen. That being said, Strathclyde do host the CLT team, offering CPD to lawyers, so I might be able to get involved with that side of professional education.

Also of particular interest, and admittedly with a spattering of nostalgia, this move to Strathclyde will give me a chance to get involved with a student law clinic that I was a founder member of. Of course, the University of Strathclyde Law Clinic has been doing fine without me and (like the DPLP set-up) is suitably well-established, but this move will, I hope, revitalise my own involvement with pro bono; assuming they’ll have me. Working with students at Strathclyde could also double as an opportunity to drive forward with some of the property law things I have been doing (perhaps through the Scottish University Land Unit, or by deploying some of my landlord and tenant know-how, which, incidentally, was honed alongside Strathclyde’s Peter Robson).

What of where I am moving to? Yes, I am pretty excited to be moving back to Glasgow. As I said above, I reckon I could have continued at Aberdeen on a steady ship, and settling into a new routine in a new(ish) place will take some readjustment. They say a change is as good as a rest though, so I am hoping I can revitalise myself and my scholarship a bit, and whilst I am not wholeheartedly looking forward to the literal and metaphorical decluttering that a move necessitates I am optimistic I will be fresher for it in due course.

So there it is. I could go on (and if anyone feels the need for further explanation feel free to comment below and I’ll try my best to explain myself), but I will leave it at that for now. What I will note in conclusion is I can’t imagine I will be a stranger to Aberdeen. My academic tenure at the School of Law and my own Diploma in Legal Practice year a wee while ago, not to mention my various family visits over the years, mean I have spent the best part of a decade in Aberdeen, so I have plenty connections in Grampian and it would be a shame to lose touch completely. Meanwhile, Aberdonian visitors in Glasgow will be very welcome: bring butteries. Finally, for any Glaswegians or Kilbarchan Habbies who thought I had escaped, it turns out I’ll be back. I’ll let you be the judge of whether that is a good thing from your perspective.

 

* Except for Professor Roddy Paisley** – I look forward to continuing my grudge against him from the Central Belt.

** I don’t actually have a grudge against Roddy, by the way. He’s lovely. For some reason I thought setting up a mock academic rivalry would be funny though.

Posted in Aberdeen, Academia, Blogging, Culture, Strathclyde | Tagged , , | Leave a comment

Rural housing burdens over rural land (but what is rural land?)

Who wants to read a blog post about rural housing burdens and a slight hiccup in the legislation relating to them? You do? Well, you’ve come to the right place.

The rural housing burden is a legal device that has existed in Scots law for over a decade, which is designed to stop dedicated housing being lost in fragile rural areas. The device works by presenting an obstacle to any sale of a home to anyone who would not in turn be using it as a home, and as such preventing domestic housing stock from being converted into (say) a second home, a short-term letting base, or something else entirely.

How do they work? That involves a bit of background. To use an obscure and dated reference, imagine a perfectly coiffured Jennifer Aniston has just announced, “here comes the science bit; concentrate.”

Title conditions > real burdens > personal real burdens > rural housing burdens

In Scottish land law it is possible to encounter something known as a “title condition”. Once created, a title condition will thereafter regulate the land it relates to, and anyone who comes to own that land (i.e. not just the owner who happens to be in place at any one time, but also successor owners). Such title conditions “run with the land”, in the language of land lawyers, normally to the effect that the owner of one parcel of ground is bound to do (or not do) something, and a near neighbour with enforcement rights will be able to enforce that stipulation. Title conditions will subsist unless they are discharged or extinguished by some means (perhaps the person with enforcement rights will agree to a discharge (often for a fee), or an application to the Lands Tribunal for Scotland can be made in certain circumstances).

“Title conditions” is an umbrella term for a category that includes “servitudes” (also known as “easements” or “wayleaves” in some jurisdictions – basically a right to use someone else’s land, normally for access or services) and “real burdens” (sometimes called “real conditions” or “restrictive covenants”, often to stop an owner doing something, perhaps building over a certain height or using the property for anything other than a domestic dwelling, or putting them under a duty to maintain something and meet any payments related to that).

This post is about that second example of title conditions, real burdens, and in turn a subset of them, namely “personal real burdens”, and in turn a subset of that subset, “rural housing burdens”.

In passing, I will note that “personal real burdens” might sound a bit like a contradiction in terms, and for property law students shunting “personal” and “real” into such proximity can seem confusing. That is something for a more theoretical analysis though. For now, it can be noted that what makes a personal real burden “personal” is the fact that they are enforced not by a neighbouring land owner, but rather by a public or quasi-public body who need not own any adjacent land to the land affected. This could allow, for example, a local authority or other relevant body to take an active role in relation to matters pertaining to conservation, healthcare, economic development, the marine environment, or climate change.

The rules relating to these personal real burdens can be found in an important statute called the Title Conditions (Scotland) Act 2003. Over and above those personal real burdens, and also in the Title Conditions (Scotland) Act 2003, there is the rural housing burden.

A rural housing burden affords a right of pre-emption to a recognised rural housing body on suitably identifed rural land. This is a pre-emption which runs with the land to the effect that a degree of control can be maintained by such bodies. Anyone owning affected land cannot sell it on a purely open market basis. The land must first be offered to the relevant rural housing body, which has a right of “first refusal” before any sale can take place.

The very existence of such a burden will affect the marketability of the affected property, and also a rural housing body will be able to act in circumstances it deems appropriate to maintain local housing stock. This is an important power, and also an important role. As such, not just anyone can be a rural housing body, you have to be designated as one by law. The Title Conditions (Scotland) Act 2003 (Rural Housing Bodies) Order 2004 is the relevant bit of law that does such designating. It is available online in its unamended form, but it has been amended in 2006, 2007 (twice), 2008, 2013, 2014, 2017 (twice) and most recently in 2019, with the addition of the Arran Development Trust to the list of appropriate bodies. This addition is important in the context of that Trust’s plans for the Isle of Arran, recently reported in The Herald.

In policy and land use terms, the rural housing burden can be an important tool in the toolbox of those who seek to maintain or design a certain character of any given locale. I made a point of mentioning them in a bit of work I was involved in for the Scottish Land Commission (on interventions in land markets, see page 11 of the Report here and background to that here). A useful resource about them can be found here, at Rural Housing Scotland’s website.

Enough background. Now it is time to point out a problem that I recently noticed in the legislation.

The problem – what is “rural land”?

As noted above, a rural housing burden can only be created over “rural land” (section 43(1) of the 2003 Act). What is rural land? Section 43(9) provides the following detail:

In this section, “rural land” means land other than excluded land (“excluded land” having the same meaning as in Part 2 of the Land Reform (Scotland) Act 2003 (asp 2)).

Here we encounter the problem. Part 2 of that other 2003 Act has been amended by subsequent legislation. As first enacted, the community right to buy introduced by the Land Reform (Scotland) Act 2003 (something I have written about separately, but I will gloss over here) only applied to rural areas, hence the importance of rurality to that regime. “Rural land” was defined (in a statutory instrument) as a locale with a population of less than 10,000 people. Whether or not that threshold is a sensible marker in relation to rural housing burdens is a standalone question, but for present purposes it is useful to note there was a definite threshold.

This changed as a result of the Community Empowerment (Scotland) Act 2015, which reformed the community right to buy to open it up to urban as well as rural communities (something Professor John Lovett and I recently documented here). “Excluded land” was no longer an urban/rural thing. This meant section 33 of the Land Reform (Scotland) Act 2003 was amended, such that it now refers to excluded land as being land that has somehow been hived off from the target area a community wants to acquire.

This is perhaps not the clearest drafting, albeit it might make (some) sense in the new Scotland-wide community right to buy. The thing is, it makes no sense whatsoever in relation to rural housing burdens.

Section 43 no longer works in its attempt to delimit what “rural land” is.

To expand what section 43(9) actually seems to say now, “rural land” means “land other than land consisting of a separate tenement which is owned separately from the land in respect of which it is exigible (subject to subsection (2A) [subsection 2A relates to salmon fishings and mineral rights])”.

Understood? No, me neither.

(There is a perhaps a wider lesson here in making sure amendments to statutes are “stepped down” to other statutes that refer to them. I have no idea if there is a central database of such cross references, but if there is not I would humbly suggest this would be a good idea, albeit beyond my technical expertise.)

Anyway. Does this mean rural housing burdens can readily be imposed across the whole of Scotland? Well, not quite: as already noted, you need designation to be a rural housing body, and any further expansion of the list would require legislation. That aside, does this mean the law needs amended to clear things up? The answer to that is a resounding “yes”.

The rural housing burden is an important legal device, and in turn it is important that the regime relating to them is clear and effective. This needs to be revisited.


Postscript

The rural housing burden is perhaps not as well-known as it could be outwith specialist circles. By way of anecdote, I recently attended a conference in Lewis and Harris (Twitter mega-thread here) and as part of the activities we visited land owned by the community landowner the West Harris Trust. We called at Luskantyre, and were told by a Trust representative of the usage of rural housing burdens locally (and – yes – West Harris Trust is a rural housing body, owing to the Title Conditions (Scotland) Act 2003 (Rural Housing Bodies) Amendment Order 2013). It is fair to say not everyone on the trip had heard of rural housing burdens, and for once in my life I was able to deploy my knowledge of section 43 of the Title Conditions (Scotland) Act 2003 and be amazingly on point. From conversations with Lesley Riddoch after the trip, I know she was interested in the potential of rural housing burdens, and she was kind enough to flag The Herald article I linked to above about Arran to me.

Whilst this blog post is mainly about a problem with the legislation, I hope the increased awareness of rural housing burdens is a happy by-product of it.

Image

A photo of Luskantyre, part of the West Harris Trust. (I have no idea if any house pictured here is subject to a rural housing burden, I simply took the photo when I was visiting. I hope the inhabitants don’t mind the photo and there should be no identifying markers in these images, but do get in touch if you have any issue with this image being used on my blog.)

Posted in Property | Tagged , , , , | 2 Comments

The Parable of Portobello: Lessons and Questions from the First Urban Acquisition Under the Scottish Community Right-to-Buy Regime

A short blog (sign)post, to point you towards an article in the Montana Law Review considering land reform in Scotland, by Professor John Lovett (of Loyola University, New Orleans) and me.

The paper should, I think, be freely accessible in the UK, but if for whatever reason you cannot access it please let me know and I can try to get you a copy.

As the paper is open access, I won’t say too much about it here, other than to note that writing it was a useful challenge for me in that I had to bring this together with an American/international audience in mind. Needless to say, having John as a co-author helped massively in that regard. It also helped to have a useful case study to riff off, and that case study was the relatively recent urban community buyout of Bellfield in Portobello. We hope we have done the community’s story justice and also that other communities might find something of use in our paper.

The paper acknowledges the helpful comments on earlier drafts of this essay provided by Ian Cooke, Jayne Glass, Frankie McCarthy, Annie Tindley and Kirsteen Shields, and I acknowledge them all again here. Thanks also to the team at the Montana Law Review.

Finally, to give you an idea of the place, here are some photos, taken by me when John and I visited Portobello in 2018.

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John Lovett (left) and Ian Cooke at Bellfield

Posted in Land Reform | Tagged , , , , , | 1 Comment

BBC feature – “Dukes, aristocrats and tycoons: Who owns Scotland?”

I was recently approached by BBC Scotland’s Morgan Spence to participate in a feature about land ownership in Scotland. This task of producing this was something that Morgan gamely undertook in response to a request from readers of the BBC website. His output (and my contribution to it) can be now be found in this online video: Dukes, aristocrats and tycoons: Who owns Scotland?

Posted in Land Reform | Tagged , | Leave a comment

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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