Solving Legal Aid…

…or why I don’t know why I chose to study law, but know why I want to be a Lawyer.


I can’t remember why I wanted to study law. I know I’ve wanted to be a lawyer since 10 or 11, but I have never been able to remember that moment when I went, “I, Paul Cruikshank, want to put on a wig and a cape and argue why I’m right”. When I qualify, I’ll be the first lawyer in my extended family, so it wasn’t a case of ‘…my father before me, his father before him…’. It just, happened. My parents don’t remember either. They’ve not been able to point to the terrible playground injustice that ignited the fire in my belly. As unsatisfying a chapter in my memoirs that story will be, it’s the truth.
But I still chose to study law come my Sixth Year at school because law was what I wanted to do…for whatever reason I wanted to do it. I figured that, since there was a reason once upon a time, I would eventually re-discover it, so it’d be fine. But being honest, I don’t think I have. I don’t think I did find the spark that lit the legal flame in the pre-pubescent me in the delict lectures or company law tutorials.

I suppose the reason you start doing something is less important to the reason you keep doing it. At the start of 2nd year. I started volunteering with Drumchapel Citizen’s Advice Bureau, and whatever reason I had for deciding to study law, I had a reason to become a lawyer. For the first time, I experienced first-hand what I was taught in school. I saw people who had nothing and were being asked to live on less.
And then it got worse. The Under-occupancy charge (or the Bedroom Tax) was introduced, meaning people didn’t receive full housing benefit if they had a ‘spare room’ (which wasn’t always ‘spare’). This meant they couldn’t pay their rent since, inevitably, they had no other income, and finding one wasn’t an option. The UK government introduced a manifestly unfair policy and, until very recently, the Scottish Government  – while having the power to mitigate these effects – did nothing. This inaction led to mounting rent arrears and so eviction became a very real threat. This, I knew, was just plain wrong, and I realised that I wanted to work to make the system fair and just. I to use what I knew as a lawyer to help everyone who found themselves in these situations.

The issue is that I can’t do this for free. I need money to live and, most people who have to rely on social security payments to survive are unlikely to be able to afford a lawyer. But that’s why we have Legal Aid; to make sure that everyone has access to the justice system. But, like all government funded projects, Legal Aid is facing severe financial pressures. In 2011, the Scottish Government began a review of Scottish Legal aid and just this month, The Law Society of Scotland (LSoS) released its discussion paper to set out is view on how the system should change. It is deeply concerning.
The LSoS suggested in their report that:

…the following areas being removed from the scope of civil legal assistance:
– Breach of contract
– Debt
– Employment law
– Financial only divorce
– Housing/heritable property
– Personal injury (with the exception of medical negligence)

These changes would create major obstacles to the most vulnerable in our society accessing the court system and making their case effectively. Consider the case I set out above. If Civil Legal Aid wasn’t available to those facing homelessness, who would be there to make their case? What about the expectant single-mother who’s hours have been cut at just the right time so her employer doesn’t have to pay her full Statutory Maternity Pay? Who represents her at the tribunal when she can’t afford to pay, and her knowledge of the law isn’t enough for her to go on? Both these cases (taken form my own experiences) would be removed from civil Legal Aid under the LSoS proposals.

According to the LSoS, these areas can be:

easily and properly be provided either by the advice sector or on a private client basis through a range of funding options including speculative fee agreements, loans for legal services, and payment plans involving deferral or instalments.

This suggestion, while theoretically viable, ignore many practical issues that make these suggestions unworkable. Foremost among these is the fact that the advice sector is already underfunded and overworked as it is. Attempting to increase the scale of its representation work could break it. The other funding options also overlook the reality that Law Centres, which provide legal assistance to the most vulnerable, are already working on a shoestring budget, and speculative fee agreements (No win, No fee) could decimate the already empty landscape.
My fear is that the LSoS proposals would make the system of access to the Civil Justice System fundamentally unfair in two ways. Directly, it would remove support to the most vulnerable, who overwhelmingly use the justice system to prevent their homelessness, protect their rights as workers and seek a fair deal with their creditors. This means that these people will be failed by our justice system and will be denied a rightfully deserved day in court. Indirectly, this proposed system would stretch already thinly-spread resources, meaning the gaping hole left by the “Legal Aid Gap” cannot be filled. Even those that try and make it smaller will struggle, because the alternative funding options just can’t work in the’free’ Legal Advice sector without draining already scarce resources.

If LSoS’s proposed Civil Legal Aid structure were adopted, making sure the most-disadvantaged in society could access justice would be harder than ever (and it’s not a walk in the park just now). Last week, the Scottish Association of Law Centres, led by Govan Law Centre’s Mike Dailly,  published their response to the Discussion Paper. My concerns about the proposed system are their concerns. I’m not a solicitor yet, but I still strongly support the position the SALC takes in its letter – because we must ensure their is fair access to justice for all.

I know why I want to become a lawyer – to help those that need it and to fight for Social Justice through the legal profession. The only way to do that is to make sure that its not just those who can afford a lawyer can enforce their rights. For them, justice in enforcement of a debt. For the least well off, it may well be a matter of staving off homelessness. Unless the future of Civil Legal Aid can be protected, the Civil Justice System in Scotland will become an unfair, unjust place for those without money – and it is the job of the profession, future lawyers (like me), and LSoS itself to make sure that doesn’t happen.

Free is not Cheaper…

…or why I want the Scottish Government to burden me with Student Debt.


As Nicola Sturgeon took over the reins of the SNP at the weekend, she declared that now they, and not the Labour Party, were the party of social justice in Scotland. In support of this, the abolition of tuition fees for Scottish Students in Scotland. The Labour Party opposed this, and so showed their true colours. They wanted students to pay their own fees, and so seemingly barred the poorest from enjoying Higher Education.

The logic of no Higher Education fees are obvious. No debt looming over them for the rest of their life. This in turn, would encourage more people from families with no University history (such as mine) into Higher Education, and so broaden their horizons. These people are then more likely to be able to fight their way out of poverty, driving up living standards. Everybody wins!
Or so it would seem , except that fees are just one aspect of the cost of university living. There are many other costs that must be paid to go to Uni. There’s travel expenses, for example, which can be expensive – but no support is specifically available for them. The same with rent, books and study materials (which if you are a law student can run into the £100s of pounds a semester) and other living expenses as they appear. The only support available to meet these for most students is a student loan of between £4,750 – £7,500 a year, depending on household income. For a student living away from home this is not a lot to go on, and for the poorest student – with perhaps little support available – this could be a greater disincentive than tuition fees.
What’s key to remember is that after a student graduates, debt is debt. Whether it comes from tuition fees or living expenses; is owed to the government or the bank; debt it debt. So a promise of “Free Tuition” is only good and useful for students from low-income backgrounds if it can be backed up with support for living costs – which it clearly does not.
What it does do, however, is offer an extraordinary level of support to those from wealthy households. Indeed, a February 2014 report by the Centre for Research in Education Inclusion and Diversity stated that:

There is only one significant group for which it is clearly accurate to describe the Scottish system as the best in the UK, which is the most well off, provided they study in-country. [p.57]

This is a damning claim against the truism that Scotland’s University funding system is the “fairest” in the UK. But when you think about how are system works, it makes sense. By focusing on providing free tuition, everyone – low, medium and high income students get a £3,000 debt relief. But by abolishing grants and limiting the availability of bursaries, the free support once available to low-income students is reduced, leading to a reliance on loans – and thereby pushing up total debt levels upon graduation. The same report estimates that a low-income students will leave with c.£20,000 total debt; higher-income students having no debt at all. The system we have does not work.
Not only does it not work, but it doesn’t work at great cost. Since 2011 Scottish colleges have faced unprecedented cuts, with over 100,000 students disappearing, along with 7,000 staff. Colleges are another route to extended education, most often used by those from low-income backgrounds or with no family history of higher education. Therefore, the Scottish Government have been funding £0-debt-graduations for rich students by cutting services most often used by lower-income families. Not progressive at all.
Similarly, postgraduate students have also suffered. Turning to what I know, the Diploma in Professional Legal Practice (a compulsory qualification for solicitors) used to be funded. But now, where grants once stood, student loans for only half of the cost have appeared. This means that any aspiring lawyer of tomorrow has to find c.£3,000 to fund their Diploma from other means. And, to put it bluntly, it’s more likely that the daughter of a lawyer will be able to ask their parents for the money than the son of a shop-worker. The effect this is having on those from “less privileged backgrounds” entering into the profession is already being noticed, and it is not a small one. The same issues apply to almost all aspects of postgraduate education i.e. the only method of funding is a loan, which does nothing to remove the overall debt burden at the end of Uni life. If social mobility is the aim, it is a long way off being achieved. In the end, the tuition fees of rich student’s undergraduate degree are being paid by the grants funding once given to postgraduate students from low-income backgrounds. The system is simultaneously on and off its head.

So, how do we solve this? One way would be to make that ever popular political decision that we should raise taxes. This would mitigate the effects of cuts to college places as much as is possible, and with new tax powers coming to Holyrood next year, it’s a possibility. However, it’s unlikely the ‘progressive’ SNP would raise taxes, especially given the 9 year long Council Tax freeze Scotland will have experienced by the time of the 2016 election.
The only other option is to accept that rocks will have to melt in the sun and some level of tuition fee is introduced in Scotland. This initially seems unattractive, but considering the case above, it is clear that the “no tuition fees for anyone” approach is not working. Introducing fees (that aren’t paid up-front) would allow money currently funding richer students’ undergraduate degrees to support more students from lower-income backgrounds, in the form of bursaries and grants that will actually reduce the overall debt level upon graduation. Support can be kept in place to meet tuition fee costs for less-privileged students, but by having those that can support themselves do so, we would be able to offer even more funding to those who don’t have that luxury, ensuring that they have a genuinely improved access to higher and further education. And, even better, it would tackle final levels of graduate debt, by replacing loans with grants.
Free Higher Education is a admirable aim. But it requires funding, and this isn’t in place – and doesn’t seem that it will any time soon. So we need to look at the reality of the situation, and while “Free Higher Education” is a brilliant headline, it masks that reality. It masks the cuts to further education that have been made to fund the policy. It hides the reduction in postgraduate support that has occurred, while undergraduate tuition fees are still paid for all. And, most importantly, it ignores the fact the grants once available for living costs and travel expenses are now replaced by loans, meaning that lower-income students are now getting in to debt just studying for their “free degree”, while their richer friends can rely on their parents helping them out. So, what I’m really saying here is, Nicola Sturgeon, GIVE ME MORE DEBT because I currently live at home and while my family are by no means rich, we’re not poor. All going well – I’ll be able to repay you in 20/30 years time. Others aren’t like me and we should be doing more for them. That’s what “progressive” is all about.

Selling the on-line method…

…or why I’m very happy my dad has finally adopted a smart phone.


It’s been an exciting time in the Cruikshank house-hold. My dad, after years of holding-out, my dad has finally adopted a smartphone. I say ‘adopted’ since it’s my wee brother’s old one. A hand-me-up if you will. I didn’t think it would last. It’s much larger than the Nokia he had before, and he’s never been a fan of touch-screens (he doesn’t like the fingerprints). But just tonight, he was snapping pictures and texting sending them off. He even downloaded the BBC News app after I told him it ‘bing’s when there’s a major news story. He is now, after all but kicking and screaming, firmly pro-phone (on condition only 6 people in the world know his number). He’s even doing mobile banking! Such advancements.

I’m not a lawyer yet, but already I’m getting the impression that the legal profession, particularly Scottish Conveyancers, are very much like my dad in the Nokia days. It just doesn’t see the point of it changing a system which appears to be working perfectly well. There have been a few I’ve noticed or been told in the last few months that seem to make this clear. I’m prepared to admit that someone my age has never known a time without a computer in the classroom, but I am not intrinsic “anti-paper” – I am consistently the only person in the lecture theatre taking notes on a non-prefixed pad. I just don’t get the hesitance to go on-line, particularly in the world of property conveyancing, where there is so much repetition and computer systems would help smooth the process for both solicitors and clients.

Take, for example, the ill-fated to ARTL, the on-line method for land registration. I can already hear the conveyancers wince. To me this idea seems brilliant! Who needs forms and forms of stuff that have to be written, printed and posted – why not just do it on-line? Yet, uptake on ARTL was dismal. Only 13 of 32 Local Authorities took it up, Lenders had been hesitant to fully participate; Solicitors even more so. A few of the tutors have said that ARTL was slow, clumsy and cumbersome, so was doomed from the start. ARTL will be put out of its misery later this year, and will be shut down. My issue with that is that the paper system, to me, seems just as slow clumsy and cumbersome, possibly even more so. In what other system would Form 1 not be followed by a Form 2, but instead be accompanied by a Form 4 and then lead to a Form 10. MADNESS I TELL YOU!!! All these forms, of course, asking for similar information, relying on all previous information being correctly processed in the first place. If there were major problems in the system (and I don’t doubt for a second there were), investment in the system is the way to go, not just tossing it to the side. The real issue, I think, is that a majority of the profession just didn’t want to use the system in the first place, and so found the reason not to. It’ll be interesting to see how the new on-line system of  Land Registration is received later this year.

It’s not just registration that the Land Registration (Scotland) Act 2012 will be changing. It will introduce the possibility of conducting missives on-line. Instead of waiting for letters to be posted and received, on-line missives allows terms to be delivered there and then. Not only does this allow us to do away with fax machines (which are terrible inventions whose existence is unjustifiable in the 21st century), but if can solve all the recent questions over “what counts as delivery” most prominently raised in Park, Petitioner [2009] CSOH 122. If the profession has a chance to do business on-line, I can see no reason whatsoever why we shouldn’t take it. Even from a client service perspective, reducing waiting time and worries included in buying and selling houses must be a good thing. I fear, however, given the reception ARTL received, that up-take will be slower that hoped, and that the DX posties don’t have to be quaking in their boots quite yet.
I don’t mean to pick on conveyancers (in fact I’ve really enjoyed the subject so far), but it seems to be the best example of the legal hesitance to move away from what we know. It was only last week that I found out that Scottish conveyancers still use cheques as the go-to means for paying client costs. CHEQUES! I have had an adult bank account for 5 years and in that time sent exactly one cheque, and even then that was because internet banking was just not an option. My tutor justified them saying that it allows full control over the buying and selling process. So, for example, someone doesn’t want to have money ‘leave’ their account to buy a new house before they’ve had the money come in from selling their old one. By using cheques you can ask the other solicitor to hold of cashing until funds are available.  But with internet banking (which is incredibly secure now-a-days) you’re still able to carefully regulate when money leaves the firm’s client account and you don’t have to rely on the other solicitor’s secretary to remember not to cash the cheque yet. My tutor also said that with on-line transfers you never know exactly when money will leave the account: it might be instant, within minutes or take until the end of the business day. That’s true, and a fair point to make…but cheques can take up to 3 days to clear! I’d rather know what’s happening to the hour, and not the day. Plus, and I can’t stress this enough…cheques are on their last legs.  Sure, their 2018 death-date has been postponed due to public outcry (and I can take a guess as to the demographics of the outcriers) – but it is surely only a matter of time before they are done away with completely. My tutor mentioned that the English solicitors laugh at us for still using cheques…and I couldn’t help but think to myself “Rightly so”. But hey, we’ve been using cheques for years and there are few problems with the system, so why change?

I think that’s the nub of the problem. The way things have always been done is that missives were sent by post (and kinda by fax), were concluded in the same way, title was registered when you sent away the forms to the keeper and all the fees and prices were sorted when cheques were handed over to the other side. This system works, of course it does, and lots of people are happy enough to keep it that way. My dad was quite happy with his little Nokia, but now he realises that, while it took years of encouragement and repetition, his new phone with all its bells and whistles (quite literally) is so much better than he had thought. The Scottish legal profession has to realise soon that the Nokia system just isn’t going to cut it in the 21st century.

The Smith Commission

…and a ‘Thank You’ to our continental and international neighbours.


Last Thursday I e-mailed my submission to the Smith Commission whole day before the deadline. I’m sure my teachers and professors would be proud. You can click that link to read it if you are interested. Compared to most, it is quite reserved and limited, and I’m sure my views will change in the coming weeks and months as I’m told why I’m wrong, but for the moment, this is what I stand.

Also, I’d like to thank the 5 Germans and 7 Americans who were interested in reading about where I thought the Scottish Labour Party should go. I don’t know why you are interested, but I appreciate it none the less. The contest – or contests, now that the deputy position has opened up – hasn’t really begun yet but I am sure I’ll have something to say when it does. But just now,I’ll repeat what I said when I saw that poll.

I stand by that all the more 3 days later.