A guest today from law student Tim Haddow. He is involved with the Edinburgh University’s Law Students’ Council campaign for fair access to the legal profession. Further background is available on the campaign website.
A stained glass window dominates Parliament Hall in Edinburgh, once the seat of the Scottish Parliament, now the hub of the Scottish courts. It depicts the inauguration of the College of Justice and the Court of Session by King James V in 1532. But the link between power, the establishment and the legal system is more than symbolic.
In his provocatively titled critique of land ownership in Scotland, “The Poor Had No Lawyers”, Andy Wightman argues that the Scottish legal profession has been complicit in a system that allowed the rich to acquire and retain much of Scotland’s land whilst the rights and interests of the poor were ignored or dismissed.
Whether or not Wightman’s analysis is right, it is undeniable that the Scottish legal profession was historically the preserve of the privileged: only they could afford the expensive education required. And it is hardly a flight of fancy to suggest that a legal profession overwhelmingly drawn from one part of society may mean a legal system that cannot fairly balance the needs and interests of all.
Like any human activity, the operation of the legal system inevitably reflects the approach, attitudes and preferences of those who operate it. And, as Wightman’s book exemplifies, the legal system has an unique role in shaping and regulating our society. Through it, rights are enforced, disputed facts are adjudicated, fault is attributed and the power of the state to impose settlements is exercised. The legal system determines what is ‘reasonable’ or ‘fair’ or ‘just’ for employers and employees; landlords and tenants; companies and consumers; the police and the public.
Secondly, whilst politicians may formulate law, it is our judiciary – selected from the ranks of the legal profession – who interpret and apply it. They preside over trials of the accused and sentence the convicted. In our common law system, they are entrusted with adapting the law to changes in society.
Finally, the legal system is not just of practical importance. The principles that guarantee democracy and the rule of law make it a constitutional actor in its own right. It adjudicates disputes between the state and the individual and determines the legality and justice of the acts of government. For Scotland, it defines the limits of the elected parliament’s power.
These factors demonstrate the importance a legal system that justly adjudicates between competing interests within society. And until the legal profession is open to all on their basis of aptitude for the legal practice, whatever their socio-economic background, the legal system will never escape the suspicion that it inherently favours the portion of society by which it is run.
Sadly, the dominance of the legal profession by the privileged is not restricted to history. A 2006 survey of Scottish solicitors showed just how few lawyers came from families whose parents were not professionals of one sort or another. Thanks to the scrapping of tuition fees, the availability of student loans and the efforts of university outreach programmes, access to law as an undergraduate degree is now wider than ever. But a more diverse profession is not being created: graduates entering legal training as recently as 2010 were much more likely than those starting other postgraduate courses to be from well-off families.
As in reformation days, it is the cost of education that is the stumbling block. Law graduates now need a postgraduate qualification before they can become trainee solicitors. The government used to support this course, the Diploma in Professional Legal Practice (DPLP), with a grant to cover the fees and another, means-tested, grant to assist with living costs. But rising costs and a capped fees award – now a loan – mean only half the actual fees are covered. The maintenance grant likewise failed to keep pace with inflation and was scrapped entirely two years ago. Consequently, law graduates must now find around￡9,000 to fund their diploma. Most start with no guarantee of a job at the end so, even for those with financial security, it is a massive gamble. For the less privileged, it is an impossibility.
In the longer-term, there must be reform of legal training to eliminate this financial hurdle. But such radical overhaul will take time, even if started now. The current system developed with the acquiescence of governments of all colours and remains part-subsidised by the state. Until reform is completed, the Scottish Government bears a moral and political responsibility to counter the increasing inequity in access to the legal profession.
Fortunately, a simple and effective solution exists: extend to DPLP students the same maintenance loans available to undergraduates. This is already done for equivalent courses in other professions and would reduce the personal contribution to a level achievable by all students.
But the Government’s response so far has been to shrug its shoulders. On a practical level, it argues that a recent change to the fees award has widened access to the profession. It has not. The reform does nothing for fairer access whilst meaning more government money goes to those who could afford to pay anyway. The government also advances a political argument: that fair access to the legal profession is not a priority. Speaking in the Scottish Parliament, the Cabinet Secretary for Education said:
“We do not support similar schemes for other professions in which employment is mainly private, such as the architecture and veterinary professions, and I do not think that we should do so in the case of the legal profession.”
Mr Russell’s choice of comparison is strange: both architecture and vet students in fact already receive extended student support arguably more generous than that needed to ensure less privileged law students can enter the legal profession.
But the underlying suggestion is that the legal profession is just another profession; that entrenched privilege matters no more amongst lawyers than, to use Mr Russell’s comparators, among those who design our houses or neuter our pets. This demonstrates a dangerously impoverished understanding of the role of the legal profession in our society.
Fair access to the legal profession does matter. It matters to creating a legal system operated and shaped in a way that meets the needs of all our society. It matters to creating a judiciary that fully understands the society it judges. And it matters to ensuring the levers and safeguards of constitutional power are operated by those who legitimately represent the society they serve.
Fair access to the legal profession matters. It should matter to the Scottish Government too.