Access to land and access to justice: the Scottish University Land Unit

On 25 January 2018, with limited fanfare, the Development Trusts Association Scotland made a page on its website live.

You may not have heard of the Development Trusts Association Scotland (DTAS), and even if you have you may not have noticed the new page. Reading this blog post will remedy either issue.

The page in question, which can be found here, marks the launch of a new arrangement called the Scottish University Land Unit (SULU). Pippa Robertson (a qualified solicitor who works part-time with DTAS, you can find her details on the website) and I started discussions about a potential collaboration last year. It has now been brought to life after some toing and froing to try to work out a model that might work a) across all Scottish universities that have law students (and supervising staff) who are keen to bring their skill and enthusiasm to bear to help… b) Scottish communities seeking access to land who are unable to unlock or afford existing advice and assistance channels, in a manner that… c) works for DTAS (and its insurers) and… d) does not ostracise anyone else.

There are a few things to consider here. In a moment, this blog post will become less of an advert for the service, and more of nuanced analysis of why I think this initiative can be useful and should be welcomed by all players. For the moment though I will stay in publicity mode.

How will SULU work?

As with all “law clinic”-type initiatives (more on law clinics below), this arrangement can only work with willing and able law students. Accordingly, the first step is for students to register an interest, which they can do by emailing Pippa.

For the arrangement to have a purpose, the students will need something to do. And this is where the alignment with DTAS and its Community Ownership Support Service (COSS) comes to the fore. The plan is for communities to liaise with DTAS/COSS like they would be doing anyway, then for students to assist where DTAS/COSS advisers are looking for an explanation of what the law says. Queries will then be referred to SULU students for them to get their teeth into. Sure, some communities may be in a place (literally and metaphorically) where they can obtain legal advice. Others might not be, or might not be quite at the stage where tailored advice is needed. These are the communities SULU could be able to help. SULU can help by tackling suitable questions that are addressed to it (perhaps setting out incorporation options for communities at an early stage, outlining certain aspects of a land transaction, or offering views on specific queries about a site) with appropriate supervision and feed that back to DTAS/COSS, who will then take matters forward with the community. At this initial “pilot” phase, the supervision will be by me and the students will be in Aberdeen.

The process for this is detailed in a “Heads of Terms” document on the DTAS website, which is also available here (PDF).

In due course, we can analyse how best to get the message out there (will a web page and this blog post be enough, he wrote optimistically?) and whether the system and role allocation we have devised works. For the moment though, we are very much in the market-testing phase. This is one reason why we have restricted the pilot to (the city of) Aberdeen. If there really is a demand, I will call upon contacts in the Scottish University Law Clinic Network to roll it out across the Scottish law schools. (My uni contacts have already been warned to expect this.) I should stress, communities seeking assistance from DTAS/COSS do not need to be in the north east of Scotland, the Aberdeen pilot is more to allow the implementation team to gauge demand rather than artificially restrict land reform to the north east of Scotland.

Why is this happening, and should it be welcomed?

This is when I get more into the scholarship behind the initiative.

Clinical legal education (CLE) now plays a recognised and important part in education, scholarship and providing access to the legal system in many jurisdictions (consider Professor Jeff Giddings, Promoting Justice Through Clinical Legal Education (2013) and the dedicated UK journal the International Journal of Clinical Legal Education). Student law clinics form a recognisable part of the architecture of many law schools. (I will now proceed on the basis that SULU can be properly called a law clinic, by using the term “law clinic” to refer to any student pro bono publico (for the public good) scheme.)

Clicking the “law clinic” tag on my blog will take you to various blog posts by me on the topic, but in brief they seek to provide practical support to those who need that but cannot otherwise obtain it (owing to legal aid eligibility coupled with a lack of funds) using the skill and enthusiasm of law students. The support that is provided is broadly of two types: “just in case“; and “just in time“. This is nicely explained in this blog post by Pete Smith. “Just in time” advice is normally a distress purchase (by someone who can afford a lawyer) or a distress request (by someone who cannot). “Just in case” advice gives people useful information that they may need at some point in the future without any pressing time implications. SULU is more towards the “just in case” end of the spectrum, albeit communities may be subject to (and may benefit from) legal effects depending on what courses of action they take after receiving information from SULU.

That explains what law clinics are and what they do, but what are they for? This is a classic question, and at this point we often meet the [false] dichotomy of whether they are for social justice or student development. Are they to improve law students by making them a more polished processor of information, or are they to improve society by deploying students into the provision of access to justice? (If the latter, wait, why? Isn’t that the state’s job, rather than one for students? I’ll come back to this.) Hopefully law clinics can be for both. That is to say, they can find the sweet spot of improving both students and society, not to mention having a longer term benefit of inculcating notions of access to justice early in a legal career in a way that can be carried forward (which Professor Donald Nicolson has recognised the importance of: see “Calling, Character and Clinical Legal Education: A Cradle to Grave Approach to Inculcating a Love for Justice” (2013) 16 Legal Ethics 36).

Clinics might have a directed or formal educational focus or they might not (see my article “Selling intra-curricular clinical legal education” (2014) 48(3) The Law Teacher 281, also blogged here and open access version here). The debate around that is not relevant here, but I do note it could be possible to bring SULU into a formal educational framework once we know what sort of demand there is for it and perhaps assess students based on reflective diaries or a suitably anonymised portfolio of work. That is for another day.

Similarly, clinics may focus on specific aspects of the law or they might not. Either way, the underlying activity will have to be aimed at something. To what extent should clinicians seek to use their own research interests to direct pro bono and CLE activities? This is a question I have asked myself and I may yet write a paper on this, so watch this space, but it does seem relatively uncontroversial that an academic specialising in employment law or landlord and tenant law might, for example, feel more comfortable advising students in relation to those specialist topics.

And what of SULU’s focus? This needs to be set in context by detailing another (and non-pedagogical) strand of the author’s research, namely land reform. It also must be set in the context of Scotland’s ongoing land reform journey, which offers various rights to communities when interacting with land owned by public entities and private individuals (see, for example, my article, “The Land Reform (Scotland) Act 2016: another answer to the Scottish land question” 2016 Juridical Review 291, open access version here). Communities have a degree of support to access these rights, from agencies like DTAS and the Scottish Land Fund (with a current annual budget of £10 million), but there is a perception of a lack of support for some communities or local projects; this can be anecdotally confirmed by the enthusiastic reaction to the tweet sent by the author announcing the launch of the initiative. Don’t just take Twitter’s word for it though: this is what Dr Annie McKee and Professor Deb Roberts said on the matter in their 2016 report for the Scottish Government, “Good practice in overcoming barriers to community land-based activities” (at page 44, or paragraph 7.2 (vi)):

Whilst there is a need for the appropriate professionals to progress transactional/legal processes…, an opportunity is recognised for a specific support role between community bodies and lawyers in particular, which may be more economical.

 

SULU might be able to play a role here. Plus, this reassures me this whole initiative is not (just) about me foisting my research interests on a bunch of students, which addresses one concern I touched on earlier.

It also serves to introduce another point: is SULU going to annoy lawyers by taking instructions away from them? From the above it would seem not – these are instructions that are not happening at present, and SULU students will not be expected to (for example) report on a title to land, or determine the existence or scope of a servitude right of access, for which professional advice would be more appropriate. (These and other carve outs are detailed in the SULU Heads of Terms.)

Will SULU annoy anyone else? At a stretch, I suppose landowners might be worried about being on the receiving end of SULU advice, such as it is. To offset those worries, I would stress that SULU students will not be adopting a partial position or wholesale adopting the views of any community, they will only be detailing the law in a comprehensible way. Further, it might be be hoped that providing communities with realistic and pragmatic options early in the process will help to manage expectations and avoid certain conflicts with landowners.

What about another point alluded to above: if there is a need for community support, is it for students to take up the slack here? This is always a tricky one for pro bono fans to contend with: are we actually letting people who really should be funding proper legal advice and support off the hook?

I suppose, in this case, we must find out if there is some kind of a demand before making that criticism. The existence of SULU – if it is indeed needed – might drive future innovative approaches to support for communities. Other than bemoaning a few lost hours writing this blog post and associated behind the scenes work to get SULU up and running, I would be absolutely fine with any new initiative that renders SULU otiose. And if there is no drive to provide alternative support services, a semi-related thought is many Scottish law students who are studying law as a first degree will be having their fees paid by the Scottish Government anyway, so a little bit of slack uptaking could be absolutely fine. I won’t say any more about that particular political hot potato here though.

Anything else? Probably. But that is speculation on my part, and this blog post is already a bit of a data dump. I will try to wrap things up.

Conclusion

In a previous life, my Twitter bio described me as being interested in access to a) land and b) justice. SULU gives me a chance to combine these two interests, with an added sprinkling of legal education. But it’s not about me (he protested a bit too loudly). I sincerely hope SULU can play a small part in Scotland’s land reform journey and also the educational journey of the law students who volunteer. I am in uncharted territory though. As such, I will conclude by noting I would be delighted to hear from you if you have any suggestions for improvements. (Might it be possible to get students from other disciplines involved, for example?) I would also be pleased to hear from you if you have any ideas about how best to publicise this to communities and/or an outlet to do so: bloggers like me can live in an internet bubble, so I am open to suggestions as to how to get SULU out there.

Finally, yes. SULU is a bit Star Trek-y, I know. This is a pure coincidence. Live long, prosper, and use the force.

Thanks very much to Pippa and her colleagues at DTAS for getting this rolling. (Special mention to Linda Gillespie and Stephen Boyle, whose names I know because I also corresponded with them. There may be others I am missing and my apologies if so.)

SULU DTAS

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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4 Responses to Access to land and access to justice: the Scottish University Land Unit

  1. Pingback: Scottish University Law Clinic Network Conference 2018 – 6 June at the University of Dundee | basedrones

  2. Pingback: Law clinics and pro bono publico in the internet age – the SULCN Conference 2018 | basedrones

  3. Pingback: My 2018 in review | basedrones

  4. Pingback: Access to land and access to justice: an update from SULU | basedrones

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