Long road to justice

He wasn’t quite in at the birth of the law centre movement in Scotland, but after a 40-plus year career spent building its expertise, Paul Brown is regarded as something of a father figure in the sector today.

Just retired as principal solicitor at Glasgow’s Legal Services Agency, which he helped to found in 1989, Brown paused in a still-busy schedule to share with the Journal some reflections on his personal highlights and on the role of law centres today.

To begin at the beginning, did he come into the law wanting to do that kind of work? Yes, is the short answer, with a bit of explanation: influenced by a legal uncle fond of quoting the biblical injunction to do justice, and a first degree in the 1970s encompassing psychology and politics, which brought discussions about social justice and law as the first law centres in North Kensington and then Castlemilk were finding their feet, he soon joined the latter on qualifying.

Defining issues

A very small operation at that time, with funding for just two lawyers, Brown believes the main issue in Castlemilk becoming established was not so much funding as “the slow building up of a tradition about what law centres actually needed to do, which isn’t the same as what private firms do, even the most progressive ones”.

He explains: “Law centres have a different relationship with the community and ordinary people than private firms, because people have an expectation that if there is a problem, the law centre will deliver, and if it doesn’t deliver by analysing the law and producing a remedy, it will campaign to introduce a remedy.”

Castlemilk provided two defining issues for Brown – dampness in, and eviction from, local authority housing. With complex causes, and a tendency by authorities to blame dampness problems on their tenants, his interest in the former developed into a monograph he co-authored with Angus McIntosh. “It took some time for us to identify what the architectural problems were, what the health issues were, and what legal remedies there were – and they did exist.”

These remedies, such as statutory nuisance, implement and damages, were pioneered by law centres along with others: Brown acknowledges that law centres have always had very good relationships with private firms, the bar, and academics.

On evictions, which he says were frequently pursued for “ridiculously small” amounts of money, with clerks of court telling tenants to go and see their housing manager rather than take up the court’s time, “it was actually Jonathan Mitchell, now KC, who basically in about eight seconds told me, what do you mean, there’s no defence to eviction from a secure tenancy? It’s got to be reasonable. That’s where that started from, a very simple legal remedy that nobody was aware of. And now there are thousands of cases done a year, taking that up”.

LSA: the origins

How did Legal Services Agency come into being? It largely developed from Technical Services Agency, a tenant led community architectural practice and ginger group about (mainly, though not solely) public sector housing. Remedies were needed for issues the group identified, and after a business case was worked up to attract some initial grant funding, “we opened the door and the first day got four new clients: two defended evictions and two dampness cases”.

From the outset, community legal education has been a major plank of LSA’s work, again well supported by the private profession. Brown sees that as integral to its role. “Law centres aren’t about using knowledge to build up exclusive powers and market placing of the firm – there may be some of that, but it’s about encouraging other people to do it as well, and I think the legal profession has understood that, so one of the really great things – it really is very marked – is that the profession has supported thousands of seminars by coming and speaking at them.

“Another thing is making legal education as affordable as is decently practicable, and as open as possible: it’s open to everybody; you don’t have to be a solicitor.”

But the casework soon took off. Helped by newspaper coverage of a successful claim for a child affected by dampness, within six months LSA had 35 actions on the go. On the eviction front, it has been said that over the last 30 years in Glasgow there has hardly been an eviction court in which the centre was not acting in at least one case.

Developing expertise

Much of note has happened beyond housing issues, however, as LSA – and Brown himself – spread into other areas of expertise as casework arose. Mental health was an early one. “People with users’ experience said we should set up a mental health project, because it was just the beginning of representation at tribunal. We got a mental health specific grant from the Scottish Government. Private firms often provide very good service now, but then nobody was doing it.

“Also if you’re a lawyer in this work, you’ve got to understand the medication and the technical terms – it’s difficult to do mental health representation if you don’t understand the basics of the medical and social work issues, and that’s one thing our lawyers wired into and got a good understanding of it.”

The 2001 Mortgage Rights Act was another achievement, the result of a lengthy joint campaign by LSA, the then Drumchapel Law Centre, and Govan Law Centre. “Colleagues in England were gobsmacked that people with mortgage arrears in Scotland could lose their house without any form of defence whatsoever”, Brown recalls – “all you could do was plead. The Government did take it up eventually, all the parties. Everyone gained, and the public purse must have saved tens of millions because keeping people in their house while they address their problems really makes a difference.”

LSA has also made a name for itself in criminal injuries compensation, where it has gained expertise in supporting people with complex needs, sometimes along with communication difficulties. On the campaign front, its first target was the former “same roof” rule, which prevented people claiming for abuse suffered (pre-1979) at the hands of a member of their own household. Parallel litigation in all three UK jurisdictions against this discriminatory provision culminated in the UK Government backing down as a Supreme Court appeal was about to be heard.

Less success has to date been seen in taking on the rule, current since 2012, that provides a complete bar to compensation, however big the award might have been, if the claimant has an unspent conviction resulting in a custodial sentence or community order, or receives such a disposal while their claim is pending. A particular disappointment for Brown was the failure of two judicial reviews against this rule (“I was hoping my career would end on a high point!”), the Outer House holding that it was a legitimate policy choice that the exclusion be consistently applied. But the Government has since invited LSA to submit views to a review of the rule.

Secure funding?

This last issue Brown uses to illustrate the need for law centres to work alongside private firms, if for example the claimant is facing criminal proceedings that could mean a claim being barred. More broadly, while fully supporting the case for better legal aid rates, he believes civil legal aid lawyers also need to work more closely together, for example through information sharing, in order to demonstrate that they are delivering value for money.

“Improved communication won’t solve everything, of course, but it would make a very big difference and would build on the public service aspect of the legal aid model.”

The point feeds into his views on the prospects for law centres, looking ahead. Finance he describes as “a medium issue”. LSA’s Glasgow City Council grant has declined; he hopes at least that it will now be held. Charitable foundation funding tends to be for two or three years; “the difficulty is, as lawyers know, if you’re going to do test cases or whatever, they could run for five, six, even 10 years. So you’ve got to have core funding that lasts for more than that and it’s really important that that continues. I’m also very committed to law centres having a community business element, trading; that means using legal aid”.

But both LSA, with its now 30 or so staff, and law centres generally, through their user involvement and community links, are thriving, Brown believes. “One thing I’m very proud of is that law centres are flourishing. It’s so easy for professionals to become isolated and do what they have always done, without speaking to other professionals, or campaigning. It’s easy to get so busy that 10 years pass and a problem with the law hasn’t been taken up – you think writing to the Law Society is all you need to do; well you need to do an awful lot more. People are banging on the door saying solve it, and we need to campaign about it. It ebbs and flows but that is part of what a law centre does. That’s one of the unique things.”

Priorities for change

Asked what he would most like to see change next, Brown focuses on effective representation rather than strict legal rights. “I think there probably needs to be an implied and possibly explicit right to a full scale, suited and booted lawyer for everybody who’s threatened with eviction, whether it’s from private sector tenancy, public sector tenancy, or a home owner who needs the right to be affordable: legal aid for people with mortgage arrears can be very unsatisfactory because of recoupment.

“I think employment law access to services is developed, but provision of free or cheap legal advice, assistance and representation for employment law matters is very important. LSA has got one project with just the one lawyer; there is a real need for that.

“Also there is a need for lawyers who already do work for people who have multiple needs, to work together in different ways. That’s not quite changing the law but it’s changing the way of working so that all these needs can be gathered together and the person who is vulnerable knows they will get help. And the rollout of understanding what’s new in rights, and what they mean to people is important, because otherwise people campaign about rights and the ordinary person has no idea how they relate to that.”

The Scottish Parliament has made campaigning much easier. “I think Scottish politicians listen; sometimes they take things on board – there’s no doubt that has happened. It’s hugely more accessible than the UK Parliament was.”

A kick where it’s needed

Is there a particular case or campaign of which he is most proud? Brown mentions a few. “The reasonableness defence and the way we told everybody about it, has to have saved thousands of people from being evicted.” A related campaign focused on helping people against whom decree for eviction had already passed, to seek a minute for recall: “People didn’t know that an ordinary person can do that. It doesn’t cost anything; you maybe need to get a sheriff officer to serve it, but it’s doable.”

Then there was the same roof rule – “a limited number of people benefited, several hundred, but we were very proud of that, in terms of individual test cases”. In addition there are individual litigations: in one still current, Brown’s team secured a big interim damages award in the Court of Session for a child of a disadvantaged family who was seriously injured in hospital; in another, following the Supreme Court win, they secured a six-figure settlement for a child in a same roof rule case who was “really badly abused by his father”.

But he emphasises in conclusion: “A really important thing I want to say is that I’ve been part of lots of big achievements, but it was never me – it was always us. Always a team. I can’t name all the people, but academics, volunteers, advocates, medical and other experts and community activists. The booting in the bum from community activists can be crucial, and I really think that needs more recognition – many of the people involved have now passed away, I’m afraid, but they really understood what a lawyer for ordinary people could and should do.

“My career has been founded on that, really. I think it’s been reasonably successful, but it couldn’t have happened without them.”