Rights team

A new body to oversee the Scottish legal system in action and propose necessary changes? OK, so we aren’t talking about yet another quango. But isn’t the ground already pretty well covered?

A quick mental tally checks not only the Scottish Law Commission, Scottish Criminal Cases Review Commission, Scottish Human Rights Commission, our Children’s Commissioner, the Equality and Human Rights Commission and other public bodies, but a host of interest and pressure groups including SCOLAG, Shelter, Sacro, Consumer Focus… the list goes on.

This has not deterred a group of Scots lawyers who see a need for something more. Their initial circular proposed nothing less than “an all-party grouping of legal and lay persons, covering the entire range of civil and criminal law… to create a body of informed, educated and reliable opinion-makers, with first-hand experience of the legal system in action, to propose any changes that they see are necessary”.

Solicitor advocate and human rights lawyer John Scott is one of them. Formerly chair of the Scottish Human Rights Centre, Scott says that since SHRC folded in 2005 he has become “increasingly aware of a gap in Scotland when it comes to a different voice on certain issues, many of them related to our system or process of justice”.

“In England”, he adds, “they have Liberty (sister organisation to SHRC), JUSTICE, the British Institute of Human Rights, Reprieve, and some others. What is there here?

“Of course we have the Scottish Human Rights Commission where the chief Commissioner is my predecessor as chair of the SHRC and former colleague, Professor Alan Miller. It has started its work well

and I have high hopes for it being able to repair some of the damage done to the notion of ‘human rights’ by misrepresentation and misunderstanding, but even Alan realises that human rights commissions work best where there is an active NGO operating in the same area.”

Law in the real world

The self-styled JUSTICIA initiative (the name of any new body has still to be confirmed) had already attracted some 70 or 80 expressions of interest when a meeting was held in Edinburgh last month with the aim of exploring the scope for an organisation and forming a steering committee.

Principal guest was Roger Smith, Director of London-based JUSTICE, the group most likely to provide a model for a Scottish body. Founded in 1957, JUSTICE predates most of the commissions and campaign groups now to be found promoting reform. So is it difficult these days, I asked Smith when we met up during his visit, to keep a distinct identity for his group?

“I don’t think it is”, he replied. “We have a particular identity, which has a number of elements. We are largely an organisation of lawyers; we have about 1,500 members, a small number of which are in Scotland, and we are an all-party organisation, all three main parties and others. The thing that brings them together is a commitment to the law, to the rule of law, and to advancing the good administration of justice, and it attracts the kind of lawyers who are really interested as I am in the link between black letter law and what actually happens in practice, in social policy. I think there is a solid group of lawyers who are interested in that and certainly in London they are attracted to us.”

Smith himself embodies this interface. Having begun his career in the City, he joined the law centre movement in its early days in the 70s, then took “a really interesting job” at Child Poverty Action Group developing judicial review cases for six years, following this with a dozen years as Director of the Legal Action Group, and three as Director of Education at the Law Society of England & Wales, before taking up his present role in 2001. “What I’ve really enjoyed throughout my career is law itself, practising law, thinking about law, how law relates to social policy and policy in general.”

With a staff of “two people in a basement” for most of its first 40 years, JUSTICE nevertheless produced papers on a number of subjects which, sometimes many years later, were to become mainstream thinking and pass into legislation: ombudsmen, rehabilitation of offenders, data protection, a Criminal Cases Review Commission to investigate alleged miscarriages of justice were all on its agenda ahead of most other people’s. By the time Smith arrived, it had expanded to seven staff and bought its own premises thanks to a generous endowment secured while Lord Alexander of Weedon QC, then also chairman of NatWest Bank, led the board.

The right mix

While Smith admits to being most excited about its work on “issues over the horizon”, as he puts it, that is the smaller part of JUSTICE’s activity and Smith is careful to emphasise that only by being “thoroughly immersed in what’s going on at present” is it possible to identify what is likely to emerge as the next big idea. So the bulk of JUSTICE’s work comprises engaging with the legislative process – lobbying on major bills of interest and submitting amendments, combined with training courses and seminars; and also submitting “third party interventions”, the now well established procedure south of the border in which the court may permit a non-litigant with something worth saying, to make submissions in an appropriate case. This gave JUSTICE a role most recently in the Binyam Mohamed case involving secret documents and allegations of torture.

Counter terrorism measures have occupied much time for Smith and his team recently, along with EU criminal justice initiatives and a big research project on legal aid, on which Smith himself is an acknowledged expert. But while the balance of work at present has a criminal flavour, Smith regards that as an accident of timing, with the true civil-criminal split being more like 50-50. “There’s been a major row about the libel laws for example and I was wondering whether to put some energy into that”; and he would love to be able to grapple with the “super injunctions” recently featuring in the English courts – those where it cannot even be reported that an injunction has been granted.

He laughs when asked what he would most like to do if he had more money. “I just think the work is infinite. But I wouldn’t change anything as to how we work even if you doubled our money. I would just get involved in more work.”

Smith describes JUSTICE’s purpose “at a high level”, as being to advance access to justice, human rights, and the rule of law – all terms that regularly feature in legal policy debate in Scotland. He acknowledges that, unlike the 1950s, the legal professional bodies have extensive programmes of legal policy and law reform work, with which JUSTICE can interact. “But I still think, I know for England & Wales, that still leaves a gap for an organisation like JUSTICE to participate in discussion.”

Unavoidably, he explains, the professional bodies represent the interests of practitioners, and while practitioners have the insight of knowing what’s going on, “I think there’s a real value in bringing that experience together with a wider policy analysis and developing a critique which combines both. For example on legal aid, practitioners know it is badly paid and want it to be better paid, and they’re very strong in relation to that. They can be a bit weaker in terms of seeing how legal aid might develop in a broader way.”

Setting off on the right foot

How does Smith think a Scottish group might get started in practical terms? “I fundamentally think that the group that’s here should decide what it wants to do. It would depend on (1) what their analysis was and what they thought was the need, and (2) what they were willing to do. And so if people wanted to bring to the meeting a range of things from miscarriages of justice, to the consequences of devolution, there’s an argument for saying it would be really interesting to work on all of those issues together with a critique that was specific to what’s going on in Scotland, but alternatively I can entirely see there might be an argument for saying, let’s focus on one thing and get that off the ground.”

A good start is essential. “It’s worth putting some time into thinking about what are the issues you want to work on, and you have to get some successes… So if it’s going to be something about miscarriages of justice, choose your target, your issues, how you’re going to do it – for example produce a memorandum and have a conference and do some strategic thinking to make sure that the first thing you do is successful.”

One interested individual who has helped co-ordinate matters in Scotland so far is Peter Hill, former producer of the Rough Justice TV programme. But it is too early to say what the focus of the new organisation will be, and John Scott assures us that it is not intended to replace those who are working in the field of justice, like the Miscarriages of Justice organisation: “We hope that it will work with those who are toiling away already, but also that it may be better able to look to the horizon”.

Although he seeks among other things to fill the hole left by the SHRC, Scott hopes the new body will find a wider role in reviewing the changes that have taken place in the justice system, certainly since he qualified 20 years ago. “Much of the change has seemed haphazard, piecemeal and kneejerk”, he observes. “We are left with something of a patchwork quilt and I am not sure it works as well as it should. Perhaps I am wrong, but the proposed new organisation may help by holding up a mirror to what we have.”

If the new Scottish kid on the block is to achieve the regard with which its English cousin is held, it will need at least a degree of circumspection. Such an approach did not prevent JUSTICE itself from pursuing alleged miscarriages of justice in the days before the CCRC, but Smith recognises that it is of the essence of the organisation not to be too strident.

“We are an all-party organisation, so everything that I say, or we publish, has to be in a language and with a substance that is going to be OK with lawyers from all three political parties, so that means you have to have a certain style, you can’t be campaigning. If you contrast our style and that of Liberty, I can’t attack the Government in the way that Shami Chakrabarti or Liberty do” – much as it irks him to have JUSTICE confused with the latter group. “I can say that the proposal to extend pre-trial detention to 42 days is ill advised, disproportionate, unargued and unresearched, but I can’t go beyond into a diatribe against Government.”

He adds that it is helpful when trying to influence things behind the scenes not to have too high a public profile: “It’s much easier to talk to civil servants and politicians if they’re not feeling that you’re against them.”

Friends in high places?

Another point that stands out on JUSTICE’s CV is the respect it enjoys among the senior English judiciary. Smith believes this has been the case from the outset, with its founders comprising “a pretty high powered group, including Peter Benenson, who went on to found Amnesty International, Hartley Shawcross [former Attorney General], there was a whole group of very senior lawyers”.

“And we have very consciously operated at a level where we can maintain the confidence of the senior judiciary. That hasn’t been a problem. Many of the senior judges, members of the Supreme Court, have actually been involved in JUSTICE when they were younger, and that’s the advantage of an organisation which has a certain length of life.”

In Edinburgh principally to address a meeting in Parliament House on the proposed British Bill of Rights, Smith took the opportunity to test the level of interest in his type of work. “The thing that has impressed me from only being here a day, we spent a day seeing a whole range of people from civil servants through to political parties, is that there’s a lot of interest among quite a wide group of people in looking critically at aspects of the legal system. I don’t think there’s any particular reason to say that’s because the system is defective, but I think there seems quite an appetite for people to analyse it and think about it and that seems to me a real positive.”

Scott too is cautiously optimistic. “My hope is that the new body will be welcomed rather than occasioning the sort of defensive reaction which sometimes happens when such scrutiny is suggested. My belief is that we have a system where many people are doing their very best, often at considerable personal cost, to do what they think is right. Surely there is no harm in checking.”

Outlook unsettled

At the UK level Smith sees the whole political and constitutional situation as “incredibly flexible”, as we face a general election and the possibility of political change – but with tensions within both Labour and Conservatives between those of authoritarian and those of more liberal tendencies.

“I think the drift is rather paradoxical, the drift is towards more authoritarian individual measures, but at a higher level there’s more talk about civil liberties and human rights than there ever has been, and for me the Human Rights Act, under threat though it is, was actually a major step forward in the protection and the advancement of rights, and it’s a really optimistic measure even though in a way it has been so successful it’s now under threat.”

While “nervous” as to the outlook for human rights, he believes that lawyers at least are at ease with the concept. ‘What I really liked about the [Parliament House event] was that it was a group of lawyers discussing a Bill of Rights, and although people took different positions, actually the language and the concepts were the same, so we all understood what we were saying and there was a discussion about it. I think lawyers understand about the rule of law, I think most lawyers in my experience don’t have any problem about the concept of human rights, they get it and they can quite easily absorb it, so I’m rather optimistic about lawyers, I rather like lawyers, and they’re well placed to get into these issues.”