Mike Dailly: ‘A representative legal profession: cornerstone of a fairer and more just Scotland’

Mike Dailly is principal solicitor of Govan Law Centre, a prominent social justice campaigner and an outspoken advocate of the role of law in protecting the interests and promoting the needs of the most disadvantaged in Scotland’s society

A good starting point for our discussion this evening is to ask: why is diversity in Scotland’s legal profession so important? No-one would disagree that all students should have an equal opportunity to fulfil their potential regardless of social background, race, gender, age or disability. It’s a fundamental principle of social justice.

How then can we justify less well-off students in Scotland being denied entry to a legal career because they can’t afford to undertake a mandatory postgraduate course? Should entry to Scotland’s legal profession be dependent upon your parent’s bank balance or credit rating? That is what we are here to debate tonight; and in particular, the Scottish Government’s recent changes to postgraduate funding for all law students.

There are practical reasons why diversity is important in the wider public interest.

I would argue that more representative and inclusive professions help create a fairer and more just society. For an illustration of what happens when a social group from a privileged background forms an elite, we need only look to the UK Cabinet.

The UK Government’s present austerity agenda with unprecedented welfare cuts is in large part due to the fact that there is little empathy or understanding of what the austerity agenda means for those on low pay, or benefits.

I would contend that access to our legal profession is important because the kind of new lawyers that we want to create is a critical ingredient to the makeup of our future legal system and the shape of our society.

The law can be a source of hope. In principle, Scotland’s legal system has the power to ensure that every citizen has the opportunity to fulfil his or her potential without discrimination, fear or favour. A means to protect the rights of the vulnerable, disadvantaged and the poor. A means to right wrongs and improve the health and wellbeing of our citizens. A means to strengthen democracy and accountability, where all men, women and children are equal under the rule of law.

But the law can be a source of misery. Sometimes the law or its practical application can be harsh and unjust. We do not arrive at good or bad laws by accident. They are the product of various groups lobbying our political elite.

For a long time we had no health and safety rights at work. Such rights would never have existed if it were not for our trade unions. Likewise, for many years Scotland had laws that favoured creditors and financial institutions.

Indeed, it was not that long ago – just over a decade – that most debtors in Scotland could be subject to a poinding and threatened warrant sale almost automatically. Equally, homeowners threatened with homelessness had little or no rights to defend themselves in a mortgage arrears case. The Scottish Parliament changed all of that, but again, not by accident. This time the lobbyists were law centre solicitors and civic groups across Scotland.

We need to create new lawyers that come from all walks of life. New lawyers who have who have seen financial hardship and social injustice up close and personal and want to do something about it.

We live in a society where too often fairness is measured by the depth of your pockets. Anyone who watched this week’s BBC documentary on Donald Trump’s grotesque bullying of residents near his new Scottish golf resort will understand that money does indeed talk.  Valiant but unsuccessful attempts were made by Scottish solicitors to stand up for those local residents, but with a broken legal aid board and an establishment that is skewed against the citizen, it can be a Herculean task. We need more Davids to fight Goliath, and that will never happen if we make Scotland’s legal profession the preserve of the better off in our society.

It is important to recognise that it is already extremely difficult to enter the legal profession if you come from a financially poorer background. The Law Society of Scotland’s own studies show that of those entrants who started their legal training in 2009, only 6% came from a household with a father who was unemployed or in an unskilled occupation.

That clearly represents a vast disparity with the Scottish socio-economic demographic – for example, in the same period 17.3% of working age households were workless, with 26% of working adults in Scotland being in unskilled occupations.

To make it as an undergraduate LLB, a student will already have had to work hard to get their grades and may have incurred four years of student loan debt by the time they are required to undertake the postgraduate ‘PEAT 1’.

As we know the new regime abolishes the 300 grants for maintenance and fees, and instead entitles all postgraduate law students to borrow a maximum of £3,400 to meet their course fees.

The student Campaign for Fair Access to the Legal Profession makes a powerful case for change. They note that the average course fees are £6,500 per annum, with living costs of £6,500. So we have a shortfall of £9,600 which Scots law graduates are expected to borrow from a bank at 9.9% APR, and start paying back at the end of their course.

The Scottish Government’s new policy here will act as a social barrier to Scotland’s legal profession, sending us back into a timewarp where only the privileged could become solicitors or advocates. We already know the ending of that story from a recent book by Andy Wightman. In ‘The Poor Had no Lawyers’ the author explains how landowners got their hands on millions of acres of common land in Scotland.

The Campaign for Fair Access to the Legal Profession are not asking for preferential treatment – all they want is the right to borrow the same amount of student loan support that other vocational students can borrow. Architect students can borrow additional student loans for up to six years, while medical and dental students can borrow for their fifth year of study. Postgraduate trainee teachers also have access to student maintenance loans. Why not law students?

There is no logic in the current policy. It is regressive, unfair and against the aspirations that the Scottish Government has for an inclusive and successful Scotland. I hope the Scottish Government will reconsider it.

If I can end on this observation. I have been reflecting on how I would have fared had I had graduated with my LLB this year instead of 20 years ago. I would have been a working class kid from Dundee’s Whitfield with not a snowball’s chance in hell in completing PEAT 1 – never mind practising as a solicitor. Many of our banks, financial institutions, and a very long list of bodies, landlords and companies might have been pleased to hear that, but I’d like to think many more citizens across Scotland and the UK would have taken a different view.

Mike’s personal reflections following the event can be found on his blog here.

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