Greater good and greatest need

As always, the Law Society of Scotland’s annual conference presents you with a tough choice deciding which breakout sessions to attend. But top of my list was “Access to Justice: Helping the vulnerable and those most in need”: surely this went to the heart of the conference theme, “For the Greater Good”?

Familiar figures (to a Scottish audience) Aamer Anwar and Paul Brown were joined on the panel by Jolyon Maugham QC, who described the use of crowdfunding in tackling powerful interests, and (coming from a different angle) Karyn McCluskey, chief executive of Community Justice Scotland.

Anwar, as is well known, is a textbook lesson in not giving up against the odds. He finally won his own civil case for assault against Strathclyde Police five years after he was beaten up as a student, and succeeded after 19 years in achieving a measure of justice for the Chhokar family in a successful murder prosecution, following a pro bono campaign which took on previous failings of the Crown Office – “a very different organisation from what it is today”, as it put up “obstruction and a wall of silence” – and then the double jeopardy law, which required new legislation before the further trial could finally be brought.

Describing the campaign as a “template of how to access justice, and guide debate”, he remarked, with some understatement, that “Freedom and justice aren’t handed to you on a plate.”

Lending some muscle

Director of Glasgow’s Legal Services Agency law centre, Brown focused on issues that affect larger numbers of the vulnerable, such as homelessness or mental health. “Too often society turns a blind eye,” he commented. “People with a right often need some muscle behind them. If they are excluded or disadvantaged, they need to go to court in a way others don’t.” 

We can be proud of our legal system, he added, but we must avoid the tendency to become complacent. “The profession as a whole hasn’t really grasped legal aid as an issue for everyone, not just those who need it.” We should encourage it as a career; it must not become “residualised”. As the Supreme Court has recently had cause to point out, access to justice is not just for the individual.

Maugham, founder and director of the Good Law Project, a not-for-profit which seeks crowdfunding for litigation to support progressive causes, made no secret of wanting to use the law “for avowedly political ends” – small p, I think. His funding supported Gina Miller’s case against the Government invoking article 50 without the authority of Parliament; he is seeking to have Uber called to account for what he believes is £1 billion avoided in tax (though this, he acknowledged, is more about challenging the Government for tolerating tax dodging by US multinationals). The minimum wage, and housing issues, are in his sights: “Many people in society don’t feel that the system is working for them.”

Crowdfunding, he explained, has the advantage of showing “whether your cases touch people’s lives”; the downside is the lack of regulatory oversight to reassure donors that their money will be spent in a particular way. Also, how do you sell having to cover your costs if you lose; and if you win, what do you do with costs recovered? Reputationally, overraising money is a big problem, hence he chooses to appeal “small and often”, even if this goes against conventional wisdom. 

Shaping justice

McCluskey, too, concerns herself with those who may have been let down by the system. Having worked in prevention of offending and violence reduction, among other things, she described the custody court as containing “the saddest people I have ever seen”; but they face a “lack of compassion” in many of our services. If people don’t stand up for them, they often do not receive justice, she claimed.

Answering questions from the floor, Maugham cautioned that lawyers cannot fix all the problems of society: it is not our job to pretend to be politicians, but it is our job to respond to social situations.

Anwar added that it is simply not true that you can get help when you need it, though with vulnerable individuals, people often assume that they can. Now campaigning for the family of Sheku Bayoh, who died in police custody, he emphasised the need to take action from the outset to obtain evidence and not rely on the system. By exposing the system and publicising the case you can change the system over time, he told us, but you have to “keep the issue up there”.

For Brown, access to justice needs to be “shaped”. Trades unions were best at it at one time, but have “gone sleepy”; law centres have an important role (he disagreed with Maugham’s claim that they are “withering on the vine”, though – my own observation – the more severe legal aid cuts in England have seriously affected law centres there). Class actions can “help you hit hard”: his own career was changed by action to protect criminal injuries compensation from cuts under Margaret Thatcher.

Are we better off because of the Scottish Parliament? We are in a better place, Anwar replied, “but politicians need to stop running scared of the tabloids”. Brown believes politicians are now far more accessible; “the fundamental thing is to make sure that people who feel excluded are organised”.

McCluskey agreed. There is “less of a gap between top and bottom”, and people are more approachable, she said. But the Parliament is also restricted.

Brexit: A legislative horror show

An insight into the scale and complexity of legislating for Brexit was provided in the breakout session “Brexit and the rule of law”, by Lynda Towers, director of Public Law at Morton Fraser but for many years a Scottish Government and Scottish Parliament lawyer. 

The volume of legislation will be “horrendous”, she commented. Aside from the main Withdrawal Bill, the bills dealing with customs and immigration alone would be major bills in any session – and she estimated that 7,000 statutory instruments will need to be amended in some form. “You just can’t draft that amount of legislation by 2019.”

When should clients seek advice? They probably have less than a year; they can’t wait for exit day. And in the agriculture sector, clients need to make decisions this year about what to plant next year. Longer-term investment decisions are also problematic (Hugh Aitken of CBI Scotland told us that more than 40% of businesses reported that Brexit had affected investment decisions, and more than 90% of these said negatively).

So solicitors should start thinking now about their sector and what to tell clients. This applies also to devolved areas: “Local authorities think they will be OK, but for them as well much is also regulated by EU law.”

But she admitted she was “really not optimistic that the general miasma of uncertainty is going to disappear any time soon”.