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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Elizabeth Comerford (L), Alison Atack and Malcolm Combe

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Exclusion Erosion – Scots property law and the right to exclude

I have published a chapter in a new edited collection of essays, entitled “Exclusion Erosion – Scots property law and the right to exclude”. An open access version of the paper is available here.

There is no abstract in the chapter for me to quickly cut and paste from to explain what it is about. Accordingly, here is a very quick attempt to capture that.

For some, the ability of owners to exclude others from interfering with something that they own is fundamental to the right of private property. This is understandable: if an owner cannot stop (for example) someone else from coming into her house or driving off with her car, what exactly is the point of ownership? Away from these obvious examples though, the extent of this “right to exclude” does merit some attention. There also seems to be a particular need to do this from a Scots law perspective, owing to the lack of a specific Scottish interrogation of this issue in the light of the various theoretical and other approaches, and also owing to the recent land reform measures that have been pursued in Scotland (notably the “right to roam”). My paper is an attempt to explain how Scotland has allowed this right to exclude to be eroded to an extent other legal systems might find striking, whilst highlighting that Scots law still retains a recognisable and workable property law regime.

So that is the story about the substance of the chapter. This blog post also offers a chance to explain the story behind the chapter.

In 2015, I presented a paper at the University of Aberdeen at the conference in honour of Professor David Carey Miller. A collection of online material from that conference can be found here. My paper was one of several presented at that conference, with a view to collecting contributions into a festschrift (a celebratory book) for Professor Carey Miller.

In February 2016, Professor Carey Miller died suddenly. My blogged tribute to him from 2016 is available here. The planned book then evolved into a book in his memory. This has now been published by Aberdeen University Press, under the title Northern Lights: Essays in Private Law in Memory of Professor David Carey Miller, edited by Douglas Bain, Roderick R M Paisley, Andrew R C Simpson and Nikola Tait.

The book will be formally launched at the next lecture in the bi-annual Lord Rodger Lecture Series, which will be delivered by Lord Pentland on 20 July 2018.

Incidentally, Lord Pentland’s lecture is entitled: “A wicked murder mystery: Lord Rodger and the mens rea of murder.” You can book for that event here.

Winds of change? Crofting, community and renewable energy development in the Hebrides

This is a blog (sign)post, directing to another blog post that has just been published over at the School of Law at the University of Aberdeen’s blog.

Needless to say, I wrote yonder blog post. The legalities of it made me think it was appropriate to post over at the uni rather than on my own WordPress, but do rest assured I did run it past colleagues to ensure I was not just using the cachet of a School of Law blog to make a point.

I hope the post serves as a decent primer to all the crofting issues that surround this particular potential onshore wind farm development up in Lewis. I am aware it is quite lengthy: it weighs in at 4,000 words or so. (I am not sure if a post of that length still counts as a primer.) That attracted comment from one colleague who looked at the post; indeed, I broke my own rule about optimum length for a blog post. The logic for such a lengthy post was to set out crofting law as best I could to any non-specialists that might be reading, and also to cover off any issues in as balanced a fashion as possible. And believe me, the post could have been longer, if I had tried to capture all the energy and planning niceties that are also in play.

I will leave that post to speak for itself, although I will offer a final comment before I do so. I am aware that – despite my own connections to Point – I am on the outside looking in. I am also aware that as far as many people are concerned the stakes are high. This meant I did not tread on this ground lightly. Now that I have done so, I do hope the post serves a useful purpose and is received by all parties in the spirit in which it was intended. I would be happy to continue with any dialogue around this topic as best I can.

Abandonment of land in Scots law, with reference to the Scottish Coal case

This is a blog (sign)post, directing to a note that has just been published in the Edinburgh Law Review on the abandonment of land in Scots law.

This is a topic I was studying last year (see this blog post trailing a research seminar) and the note is hopefully the first piece of a bigger jigsaw. The note was co-authored by Malcolm Rudd, a former student and research assistant. That research assistance was supported by the Carnegie Trust for the Universities of Scotland, which I gratefully acknowledge in the note and again here.

The topic of land abandonment is something that Richard Cramer, a PhD candidate at the University of Cape Town, has also been exploring (as explained in this blog post). Abandoned land is something that is topical in Scotland at the moment, but for very different reasons to why it is topical in South Africa. In Scotland, there will soon be a right to buy neglected, abandoned or environmentally detrimental land, and draft regulations have been put forward explaining what counts as wholly or mainly abandoned or neglected. My note is not about this sense of abandonment, it is more about an owner actively trying to escape the responsibilities and possibly even financial burdens that come from ownership. That is what happened in the Scottish Coal case, which I explore in the note. I also consider why such instances of purposeful abandonment may not have been litigated in the past, with reference to the old Scottish feudal system, the rules around positive (acquisitive) prescription, and the increased tendency towards public regulation of land in the modern era.

You can access the Edinburgh Law Review article here (£) or an open access version of the note here.

Scottish University Law Clinic Network Conference 2018 – 6 June at the University of Dundee

The seventh annual conference of the Scottish University Law Clinic Network (SULCN) will take place in Dundee on the afternoon of Wednesday 6 June 2018.

The keynote will be given by Mike Dailly of the Govan Law Centre. I am delighted that Mike will be joining us to talk about access to justice; whilst it’s not a competition, I think it’s fair to say there are few people in Scotland, if anyone at all, who has championed this cause as much as he has. There will also be content on the day about the new Scottish University Land Unit and the usual chance to discuss issues that can arise in the establishment and supervision of law clinics.

Tickets are available here: it is free to attend, but booking is required.

Thanks to Elizabeth Comerford and her colleagues at the University of Dundee for hosting the event and to the Law Society of Scotland for supporting the event.

UPDATE: the programme is available here (PDF).

Access All Areas? May Festival event at the University of Aberdeen

The University of Aberdeen’s May Festival runs from Friday 25 to Sunday 27 May.

As part of it, I am speaking at a free event on Saturday 26 May at 11:00.

This is a panel event, on the topic of access to land, with Dr Heather Morgan (a lecturer in Applied Health Sciences at the University of Aberdeen), Eleisha Fahy from ScotWays, Bob Reid (who was heavily involved with the introduction of “access rights” by the Land Reform (Scotland) Act 2003) and Brian Harrison from Sport Aberdeen.

I am hoping this event will bring a nice mix of law, policy, history and public health chat together. It will explain how Scotland’s access regime has come to pass, how it works, the opportunities and challenges associated with increased outdoor access, the benefits of getting out and about, and means to facilitate outdoor access. Regarding the latter, it will do so with reference to Aberdeen’s original, free-to-play, location-based, augmented reality game (available at Apple’s App Store here) and organised walking tours of Aberdeen.

Whilst it is free, booking in advance is necessary to keep track of numbers. For more information, including a link for booking, please click here. (There is also a Facebook event here.)

If my public access to land chat is not your bag, no worries, but I do recommend you check out the full May Festival programme to see what else is of interest.

Residents of Connecticut town offered square foot of Scotland and title of laird – a reply

On 3 April 2018, this article appeared on the website of the Guardian: Residents of Connecticut town offered square foot of Scotland and title of laird. I imagine it was aimed at its US readership, penned as it was by a US correspondent, but it appears in the “Scotland” (the country, not the place in Connecticut) section of the website.

Anyhoo, it is fair to say there were some issues with what can charitably be described as a puff piece. There was a bit of a reaction to it. Including from me. A Twitter thread ensued, beginning here.

In that thread I ask six questions, of varying degrees of importance. None were answered, despite my best efforts at polite cajolery. At some point in the thread, I highlight to the journalist Adam Gabbatt the potential that I might write a blog post about his article, subject to him clarifying any issues. No clarifications followed. As such, here is my promised blog post.

In no particular order, these were my questions, with a bit more flesh on the bones where relevant.

In the text of the article it is noted that the bunch of people who engaged with Highland Titles have “become landowners“, or similar. How do they become landowners if they are not able to register their land in accordance with the Land Registration etc. (Scotland) Act 2012?

Second, it is noted that they can “become a Laird, Lord or Lady of Glencoe”. Nowhere is it noted that “Glencoe Wood” is not actually in Glencoe, the actual place. I asked whether the journalist knew this, because it probably is worth clarifying. I mean, if I somehow acquired a bit of land in, say, Portlethen just south of Aberdeen and renamed it Dunnottar Wood and assured people they could become a Laird, Lord or Lady of Dunnottar, I suppose that is fine, but they might want to know it is a fair distance from Dunnottar Castle. (It is a comparable distance from the Highland Titles Reserve at Duror to the Glencoe Memorial Site, according to Google Maps.)

Third, where is “Loch Linnie“? I think what was meant was Loch Linnhe.

Fourth, in the article it notes “the site’s conservation status will stop the new landowners building on their 12in x 12in plots.” What conservation status? Is it one recognised by law? Not that conservation activities need to fall within local, national, EU or international designations, but it would be useful to know these things.

Fifth, on the basis it was noted that Highland Titles Charitable Trust for Scotland is a registered charity, I asked where it was registered. This was an unnecessary question on my part. It is registered in the Channel Islands. Guernsey, to be precise. Many businesses and charities operate out of the Channel Islands. Some countries have rules about what entities are able to own land assets. (Yes, actually own, not souvenir plot non-publicly-state-registered own.) Scotland is not one of them. The unregulated Scottish land market something that has been looked at a few times over the years, including recently by a research team that I formed part of. Highland Titles Limited, the landowning entity that grants souvenir plots to its customers, is registered in Alderney. It is in turn owned by Highland Titles Charitable Trust for Scotland. All of this is perfectly in order. From an academic perspective and an information to the customer perspective it might have been nice if some of these points had been drawn out, but I appreciate newspapers have word limits in a way that this blog post does not and it would have been quite a shoehorn to get a discussion of contemporary Scottish land reform into the piece.

Sixth, I asked if it was possible to explain the statement “Because you’re a landowner in Scotland, albeit a small plot, you get to use the title of ‘Laird’…And Laird translates to Lord or Lady.” How does this landownership (see above) allow you to be a Lord? And what does the Procurator Fiscal to the Court of the Lord Lyon, who deals with enforcement matters to do with heraldry and Scottish coats of arms, say about this? This was another unnecessary question on my part, because I know his view. I quote what was said (in 2014) below.

‘Souvenir Plots’.

Over the last 2 years, the procurator fiscal has dealt with a number of enquries relating to businesses which sell small plots of land (typically 1 sq. metre) to customers who are told that on becomming an ‘owner’ of the land, they may call themselves the ‘Laird of X’. This office is only concerned with the use of un-registered heraldry either by the business selling the land (e.g. as displayed on the ‘certificate of title’) or by the purchaser assuming the ‘arms’ as their own. The use of such un-registered heraldry is an offence under Scots law.

Okay, that does not actually strike at the practice, but it does make clear the limits of one of these lordships, ladyships or lairdships. Granted, the Guardian article also does this, by quoting the Marketing Director of Highland Titles where he noted those with souvenir plots are “not going to get access to the House of Lords“. (That does raise an interesting concept for Lords reform, actually…)

Anyway, enough of that, why am I still writing about this? That is a darned good question. In a way I wish I wasn’t. File my repeated writing about souvenir plots alongside the tiresome “debate” about Scots Gaelic. My two reasons I suppose are as follows.

First, the Guardian article has stickability. I have no doubt it will turn up more readily on the internet than this here blog post in the future. So be it. I still thought there should be at least one more readily accessed explainer about it than my Twitter thread.

Second, this gives me a chance to air some of the things I find of professional interest, including previous work on land registration and recent work about land markets. Sure, some might observe that my writing about Highland Titles again is either quasi-obsessive or ripe to give more publicity to an operation I have no stake in. Again, so be it. I will try to mitigate future writing on the subject, but who knows what the future will bring.