Opinion: Malcolm Combe

Law clinics are an increasingly recognisable part of the contemporary Scots legal landscape. The law clinic model of pro bono publico activity usually involves students offering support to those who are otherwise unable to find resolution to a legal problem. That support will be given subject to a suitable disclaimer about the educational stage of the students and under the guidance of university staff or other qualified supervisors. In an ideal world, clinics operating on this basis will balance a number of potentially competing considerations, and in so doing allow students to make a positive (if incremental) difference to access to justice in their local community, whilst engaging in professional and ethical development, all in a manner that does not tread on the toes of qualified practitioners trying to make a living.

Why just an incremental difference? Even the biggest fans of law clinics – and I am part of that fandom – must recognise there are limitations to what this usual model of student pro bono activity can do in terms of access to justice. That is not to say helping out an individual is not important, either to that individual or in terms of the personal development of a student who has taken (some of) the responsibility for a case, but is it possible to supplement such inherently ad hoc work with more targeted activity?

One way students can do this is to adopt a broad view of access to justice and engage in community work that is not centred on an individual coming forward with a legal problem. What “access to justice” actually means is a potentially huge topic. Those three words are bandied about by people – myself included – who may be referring to, amongst other things, how feasible and affordable it is to obtain legal advice or representation, or how comprehensible a legal system is. Pro bono activity is perhaps most associated with a person who has a legal problem, but an activity that helps someone recognise or avoid a problem at source is equally if not more laudable. Law clinics can become involved in community legal education projects with local schools, charities or even prisons, or law students might engage with programmes like the Law Society of Scotland’s Street Law. (The latter does not require involvement with a clinic, but there are some synergies.)

That gives one way to push the boundaries of what law clinics do, but what about tailoring an approach to litigation? A clinic may seek to channel its ad hoc work into certain disciplines, perhaps housing, immigration or employment, which is not exactly a new approach. (That would naturally sit alongside campaigning work geared towards law reform in an appropriate area.) Another strategy would be for a clinic purposefully to seek out a case – or at least be ready and aware when one comes in – that might be used to push the law in a certain direction. By chance or by design, this happened when Aberdeen Law Project, under the guidance of Dr Douglas Bain of the University of Aberdeen, represented the pursuer in Cross v Aberdeen Property Leasing 2014 SLT (Sh Ct) 46, which established a precedent that an administration fee charged by a letting agent could be an illegal premium (discussed at Journal, April 2014, 32).

Using litigation as a force for social change is not easy, and nothing in this note should be taken as a suggestion that litigation is anything other than a last resort, but it is fair to say there is an increased awareness of public interest litigation in Scotland (see Tom Mullen, “Protective Expenses Orders and public interest litigation” (2015) 19 EdinLR 36, and Chris McCorkindale, “Public Interest Litigants in the Court of Session” (2015) 19 EdinLR 248), England & Wales (see Joshua Rozenberg, “Is crowdfunded litigation the future of justice?”, The Guardian, 25 May 2015) and other jurisdictions such as South Africa (see Steven Budlender, Gilbert Marcus and Nick Ferreira, Public interest litigation and social change in South Africa: Strategies, tactics and lessons (2014)). Student law clinics will not automatically be a part of any trend towards public interest litigation but – assuming that there are suitable rules about standing, amici curiae and expenses (possibly fortified by pro bono expenses orders), which are not insignificant assumptions to make – it might be possible for clinics to have a role in identifying and instigating important legal actions. With the goodwill of the profession and other interested observers, pushing the boundaries of law clinic activity could also provide a welcome push for the legal system as a whole.