Malcolm Combe

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 final 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.