Commonwealth Law Conference: Day 3

Our last full day, and Glasgow 2015 has been delivering its share of controversy.

Not so the morning's keynote address, from Dame Silvia Cartwright, New Zealand's first female High Court judge. Currently an expert adviser to the UN High Commissioner for Human Rights investigating abuses of human rights in Sri Lanka, Dame Silvia also served for eight years as a judge of the international court trying human rights abuse charges against the Khmer Rouge regime in Cambodia, the subject of today's talk.

Someone described it to me as the model for a presentation such as this. Dame Silvia clearly and elegantly set out a brief history of Pol Pot's regime and its atrocities (including millions of citizens being forced from the cities to rural areas), how it was ended (Vietnamese invasion) and the court came to be constituted. Along the way she discussed the appropriate terminology for such acts, suggesting that “genocide” was to be preferred to “crimes against humanity”, even if not directed against particular ethnic groups, being broader in scope and a more meaningful term from a victims' point of view. The real meat of her talk, however, was in the lessons learned on a tribunal which had a mix of civil law and common law-trained judges, the great differences in approach on each side, and in which respects she considered that each had the advantage in such a context (overall a marginal preference for common law, but much better to develop a hybrid for that particular purpose). Finally, there were lessons to be learned for the future, and possible approaches if a tribunal should come to be set up for a Commonwealth jurisdiction. An excellent talk.

The headline grabbing session, however, was the one that followed, on intelligence sharing in the light of the Wikileaks and Snowden revelations. Somehow the organisers had managed to secure the participation of Julian Assange himself via videolink to his Ecuadorean embassy refuge, and there he was on the big screen, discussing the excesses of government surveillance (and what lawyers can do to protect client confidentiality), along with two Australian presenters in the hall (and a number of journalists present who got in on the questions).

One panelist, Adriana Edmeades, argued that state interception of digital communications should be subject to the same rules as traditionally governed police surveillance operations – a “very conservative and modest” proposal, she insisted. Without such rules, both she and Assange counselled lawyers to take steps to protect their client communications from the interception that we know takes place even of privileged matter: use encryption (if it can be broken at all, that leaves a “paper trail”), and “compartmentalise” so that your communications take different forms, with if possible the most sensitive matters being discussed face to face.

This unscheduled addition to the programme may have been a coup, but it left the judges due to speak in later sessions uneasy about being billed along with a fugitive from justice. Some hasty rearranging of speakers resulted, but sessions went ahead as scheduled. My further choices began with Mobility of the Legal Profession, referring to multi-jurisdictions such as Australia and Canada, along with Nigeria and other African nations. This showed, as Canada's Tom Conway put it, a remarkable sea change from the position 25 years ago when state bars attempted to exclude firms qualified elsewhere from practice – from being “guardians of their own watchtowers”, as he put it, to free traders where there is an imperative to allow cross-state practice and to co-operate in developing and implementing national standards for legal practice and also for law degrees, with corresponding recognition that this is in the public interest. All the papers for this session had much interesting content but were too long for their slots, so are likely to be online.

The liveliest session of the day, however, took the subject of Trial by Media. Presenter Joshua Rozenberg, legal correspondent of many parts, ensured an interactive session between audience and a four strong media lawyer panel including Mark Stephens himself, debating the good and bad things done by the press and what if anything can be done to regulate it better. This ranged over pre-trial publicity, and whether and to what extent it is liable to influence a jury; internet research by jurors; public appetite for details and commercial imperatives on newspapers; the need to present a case in a controlled manner; what faith do we have in the jury system (rather “hit or miss”, some contributions from the floor suggested), and we learned that juries were abolished in India after a particularly notorious case of trial by media. However the panel's conclusion was clearly in favour of not increasing the restraints on the press. “Public justice is the very soul of justice”, to quote Mark Stephens. “It ensures the rule of law.” Or barrister Christina Michalos: “If judges are the guardians of the law, someone needs to guard the guardians. You don't shoot the watchdog because it sometimes bites the cat next door.”

That left one final round, from which I chose “From Magna Carta to Commonwealth Charter” – a way, our Law Society's Michael Clancy commented, of commemorating the former document in the only English speaking jurisdiction in which it has no legal recognition. Barrister Peter Knox and Pakistani High Court advocate Hamid Khan were chaired by Dame Silvia Cartwright. Knox surveyed the chequered history of Magna Carta and the eventual development of judicial checks on the executive in the UK, and alongside that some strong Privy Council rulings against Commonwealth legislation that was considered to encroach too directly on the judicial function. Now the 2013 Commonwealth Charter contains a clear recognition of the “integrity of the roles” of the legislature, executive and judiciary respectively. Khan explained the constitutional guarantees that exist in India and Pakistan, adding in response to a question from the floor that religious persecutions in Pakistan are more a product of executive weakness than of lack of legal protection: Muslims can be targeted too. The courts have still proved independent in relation to verdicts and sentences, including for blasphemy, in a difficult environment, he assured us.

The day's rich diet of instruction was followed by the rich hospitality of the gala dinner, in the splendid surroundings of the recently refurbished Kelvingrove Museum and Art Gallery. The lack of a table plan caused some uncertainty, but the Commonwealth family soon sorted itself out and more new contacts were made (my most colourful business card yet, from Nigeria). With top class entertainment from Secret Opera Singers and Red Hot Chilli Pipers, along with the set piece words of greeting and thanks, it was a fitting climax to Glasgow's hospitality. I'm quite sure that Australia's Alex Ward, incoming chair of the Commonwealth Lawyers Association, resplendent in kilt for the occasion, meant every word of his fulsome appreciation of the organisation of the whole conference, for which the Law Society of Scotland can take enormous credit.

One more morning and then we're all on our way back to normal legal life. Except for those taking the chance to extend their stay in Scotland, of course!