The one bright side to the legal quagmire over a dog in a Bernera cafe – Brian Wilson
Bernera Community Association is getting much-needed help to fight legal action being taken against them and maintain the valuable services they provide
Back in February I was approached from within the small island community of Bernera about an extraordinary imposition it was facing. They needed help in bringing it to public attention in order to encourage early resolution. That is all they wanted.
As small communities find in so many contexts where bureaucratic machines are at work, “sorting it” proved impossible. The law, which is supposed to protect the weak, can just as easily be turned against them when administered by those who value process over inconvenient realities.
I have an aversion to stories in which places like Bernera are treated as fringe curiosities where strange things happen, while matters of substance that threaten their identity and existence are ignored. Small communities have little desire for the spotlight and none at all when it is through trouble being visited upon them.
The real story?
In these respects, the Bernera story is all the worse because it has been funded and facilitated throughout by the Scottish Legal Aid Board, which has been instrumental in visiting unwarranted attention upon decent people doing their best to sustain a fragile community. So let’s go back to the beginning.
Bernera Community Development Trust exists mainly to promote the buy-out of the island’s crofting estate, as is theoretically their right in law. This has been successfully obstructed for years by an absentee German landowner. That is a real story worthy of public and political attention which it will not receive.
Critically, the trust has nothing to do with the community hall or café which operates within it. Yet it was being sued for £10,000 by an outfit called the Ethnic Minorities Law Centre, based in Glasgow, at the behest of an American woman, Claire Kellerman, who had randomly secured a social housing tenancy on Bernera.
The Ethnic Minorities Law Centre sounds like a good thing. It is supposed to assist refugees and asylum seekers. It attracted the patronage of Lord Foulkes (who has now resigned) and Baroness Kennedy of the Shaws, a distinguished legal figure who is unlikely to have had cases like the Bernera one in mind when she signed up.
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A strange confusion
As the world now knows, the dispute was about Ms Kellerman’s right, or otherwise, to take her dog into the café. While that matter remains in dispute (along, according to Ms Kellerman, with 13 similar contretemps with businesses on Lewis, to which Bernera adjoins), there was one indisputable fact. It had nothing to do with Bernera Community Development Trust.
This was communicated, clearly and courteously to the Scottish Legal Aid Board, which had granted a certificate for the case to be pursued, and to the Ethnic Minorities Law Centre by the reputable legal firm of Harper Macleod in February. The most minimal inquiry would have established the truth of what Harper Macleod told these publicly funded organisations.
At that point, a line could have been drawn. It would have been up to Ms Kellerman to decide whether to start again. The Ethnic Minorities Law Centre would have had a better idea of what they were involved in. The Bernera Community Development Trust would not have had to incur £7,000 it didn’t have on legal fees. The time of the court would not have been wasted.
The Scottish Legal Aid Board did the exact opposite. They kept digging. According to a letter from its chief executive, Colin Lancaster, to Donald Mackinnon, the local MSP, they had no obligation to establish “the identity of the proper defender”. Though neither, he might have added, did they have any obligation not to. Instead, they checked with the Ethnic Minorities Law Centre and remained “satisfied that tests were met, based on the information provided”. So the case against the wrong defender continued.
The Bernera Community Development Trust asked the Scottish Legal Aid Board plaintively: “Why did you believe the Ethnic Minorities Law Centre and not Harper Macleod?” Why indeed – or maybe in the age of political correctness, the answer is in the question.
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Delay, costs, anxiety and a silver lining
When the Ethnic Minorities Law Centre finally admitted their error months later, the sheriff awarded costs to Bernera Community Development Trust – which was of no use to them whatsoever since Ms Kellerman was protected from costs by her legal aid status. For her, it had been a risk-free game. For people on Bernera, it was (and remains) a source of anxiety, embarrassment and expense. All utterly avoidable if the Scottish Legal Aid Board had exercised a modicum of common sense.
A year after the alleged café incident, the Ethnic Minorities Law Centre was allowed to transfer the legal aid certificate in order to pursue the case against Bernera Community Association, which does actually run the café. The lay person might reasonably wonder how this was effortlessly possible while another hearing in February will decide whether the case is time-barred. More delay, more costs, more anxiety.
But what does Ms Kellerman care? Not a lot, she confirmed to Sky News (who had flown in to cover this earth-shattering case). The fate of the community centre was “none of my business”.
I think this case raises significant, wider questions for the Scottish Legal Aid Board as well as the Ethnic Minorities Law Centre and those who fund it. Legal aid is a noble concept but its reputation in civil actions is undermined when it is so carelessly dispensed that there is no requirement even to sue the ‘right’ defendant.
There is, however, a bright side to the story. More than 3,000 people have now made small contributions to Bernera Community Association so that they can fight the case and maintain the valuable services they provide. That really is the kind of legal aid that reflects wisdom, humanity and belief in justice.
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