Justice & jurisprudence in the birthplace of valour

An interview with

Joanna Cherry QC

Justice & Home Affairs

A formidable legal mind, an advocate for over 20 years and ranked in the Legal 500 as one of the leading QCs in Scotland, in May 2015 Joanna Cherry was elected as the member of parliament for Edinburgh South West. She serves as the SNP Justice and Home Affairs spokesperson in the House of Commons.

TheLawMap: Throughout your legal career you have been focusing on employment and industrial relations, health and safety, mental health, personal injury and professional negligence.You also spent 3.5 years as an Advocate Depute (high court prosecutor) specialising in prosecuting sexual offences.  What are the special qualities and necessary skills required to be a successful silk in these practice areas?

The qualities one needs in order to be a successful silk are the same regardless of the specialism; independent thought; good judgement; meticulous preparation and attention to detail and clear, concise and fearless advocacy.  It also helps to have compassion and understanding for the client or complainer without losing the ability to give advice that is both objective and dispassionate.

TheLawMap: You were a co-founder of 'Lawyers for Yes' movement. Following the narrow defeat in the September 2014 Independence Referendum, there was a resounding victory for the SNP at the May 2015 general election. What are the next challenges for lawyers supporting an independent Scotland?

It has been a privilege to play a part in the Yes movement and to go on to becomes one of the 56 SNP MPs elected in the May 2015 general election.

A second independence referendum is most definitely on the political agenda in Scotland. However, as the First Minister has said, it won’t happen until the Scottish people decide the time is right. In the general election, the SNP stood on a platform of more powers for the Scottish Parliament and lawyers like myself who support independence face immediate challenges in helping to make sure that the Scotland Bill currently before the UK parliament delivers the sort of real power that was promised towards the end of the referendum campaign and for which people voted at the ballot box in May.

On issues of welfare, employment and the constitution the Bill currently before the UK Parliament does not deliver what was promised. This is not just the view of the SNP but also of a cross party committee of the Scottish Parliament, Gordon Brown, the STUC and the House of Commons Library. The UK Government have recently indicated that the promise to put the permanence of the Scottish Parliament on a statutory footing will now be honoured by an amendment to clause 1 of the Bill. However distinguished academics such as Aileen McHarg, Professor of Public Law at Strathclyde University, have doubted whether the proposed amendment has the legal effect which is allegedly intended.  There is also a concern that clause 2 of the Bill as currently drafted does not put the Sewel Convention on the statutory footing promised by the Smith Commission. The Sewel convention stipulates that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.   The lack of any effective legal check on the ability of the UK Parliament to legislate in devolved areas without the consent of the Scottish Parliament would undermine the significance of any legal guarantee of the permanence of the Parliament.

Lawyers who support an independent Scotland are also closely involved in the campaign against repeal of the Human Rights Act and withdrawal from the ECHR. I say more about this below at question 4.

The campaign to preserve Human Rights protections across the UK also involves opposing other proposed legislation which threatens human rights. This includes the Trade Union Bill, which is an attack on the rights of trade union members to freedom of association and assembly, and, the Immigration Bill, which seeks to remove the right to remain in the UK while appealing on human rights grounds against immigration decisions and will, in particular, affect appeals brought under Article 8 of the ECHR.

However the outlook for human rights at Westminster is not all bleak. When the report of the Investigatory Powers Review by the Independent Reviewer of Terrorism Legislation, David Anderson QC, was published earlier this year it was refreshing to read his recognition that any new law in this field must comply with international human rights standards and be subject to visible and demanding safeguards reflecting the central importance of both the ECHR and the HRA. I also welcome the fact that his report urges much stronger oversight of the activities of the police and security services, and, in particular, his recommendation that interception warrants should be granted by judges rather than politicians.  Such a move would properly reflect the separation of powers between Executive and judiciary, the importance of which is recognised in democratic countries across the world that pay more than lip service to the importance of the rule of law.  It is a recognition that is often sadly lacking when the UK government talks about the HRA.

David Anderson also made it clear he had significant reservations in respect of the “Snooper’s Charter”. He said that a detailed operational case has yet to be made out for the blanket retention of data such as web logs and that there must be a rigorous assessment of the lawfulness, likely effectiveness, intrusiveness and cost of requiring such data to be retained.    It remains to be seen how many of David Anderson’s recommendations will be adopted when the Draft Investigatory Powers Bill is published later this year.  Whilst, like Liberty, the SNP do not agree with all of David Anderson’s conclusions we broadly welcome his report and will be vigilant to ensure that any new bill ensures that appropriate safeguards are put in place to balance the need to keep our communities safe with the need to protect civil liberties.

TheLawMap: If, sometime in the future, Scotland becomes an independent country, would there be a significant change for the legal profession being that Scotland already has its own courts and legal system?
After the 1707 Act of Union Scotland retained its own court structure and legal system and, since devolution, civil and criminal justice matters have been largely governed by the Scottish Parliament.  However, Independence would bring two important interlinked changes to the Scottish courts and legal system. Firstly, the Scottish courts would no longer be subject to the appellate jurisdiction of the UK Supreme Court. Scotland would therefore need to look to creating its own Supreme Court and, secondly, that would require be done within the context of a written constitution for an independent Scotland.

During the independence referendum last year the Scottish Government proposed that, in the event of a Yes vote, there should be a constitutional convention to draft a written constitution for an independent Scotland. It was proposed that this would involve the people of Scotland as well as civic society. The role which lawyers would play in all of this would be to advise and to give form and content to the aspirations of the Convention.  I would like to see a written constitution that went beyond the protection of fundamental human rights to encompass social and economic rights. For example, the Nordic countries enshrine in their constitutions a right to healthcare and gender equality. The South African constitution incorporates a Bill of Rights which includes rights of access to healthcare services and social security and a right of access to adequate housing.

A new constitutional court would be required to oversee the constitution and hold the state to account if it failed to comply with it. I would like to see an independent Scotland drawing on the experience of the setting up of the UK Supreme Court but also to look further afield to other countries experience, including the Constitutional Court of the new South Africa about which Albie Sachs has written so eloquently. We could also look to the experience of other small countries such as the Republic of Ireland where the Supreme Court has a proud record of standing up against church and state.

TheLawMap: Where do you stand in the Tory government's plan to repeal the Human Rights Act?
I am wholly opposed to the repeal of the HRA.  In my role as SNP Front Bench spokesperson on Justice and Home Affairs I will lead SNP opposition to repeal at Westminster and I am happy to work with other parties in this regard.

Even if the UK government do not go so far as to withdraw from the ECHR, repeal of the HRA or any weakening of the UK’s position on human rights would not only remove important protections for people within the UK but it would also seriously damage the UK’s reputation abroad and damage relations with the devolved governments. 

Although responsibility for the HRA lies with Westminster, the ECHR is written into the Scotland Act 1998, which established the Scottish Parliament and human rights are not in themselves a reserved matter.  If one looks to the precise terms of the Scotland Act, and, in particular, section 29(2), para 1(2)(f) of part 1 of Schedule 4 and Schedule 5 one can readily see that that this is so.  Therefore, in order to repeal or replace the HRA, the UK government would be bound, in terms of the Sewel Convention, to seek the consent of the Scottish Parliament.  Such consent would be withheld as a majority of MSPs support the HRA.

However, we might not get to that stage because there is good reason to think that there is a cross-party majority in the House of Commons in favour of retaining the HRA.   So repeal of the HRA is not inevitable and independence supporting lawyers, along with the Scottish government and SNP MPs, will work with anyone and everyone to achieve the retention of the HRA; including other political parties, the other devolved governments and organisations such as Liberty, Amnesty International, Justice and the Scottish Human Rights Commission, as well as wider civic society. As an SNP MP, I am committed to the party policy set out recently by our First Minister that we will not do a deal with the UK government to preserve human rights protections for Scotland only but instead will fight to retain them for the whole of the UK.

Amnesty International has urged us to challenge the language and negativity that sometimes surrounds the Human Rights debate and I support that call.  We need to challenge the rhetoric that human rights unfairly protect criminals and terrorists.  Instead, we should emphasise the importance of due process, whilst also spreading the message that the people who have benefited from the human rights protection afforded by the HRA include some of the most vulnerable and, indeed, deserving, people in our society. For example, disabled people affected by welfare reform and also the families of military personnel killed on active service because the MOD supplied them with outdated equipment.

I used my maiden speech in the House of Commons to address these themes and I am taking every opportunity inside and out with the House of Commons to further advance these arguments.

TheLawMap: Corroboration has been a key part of Scottish Criminal Justice for centuries.  In April 2015, the then Scottish Justice Secretary announced that plans to abolish corroboration would be put on hold for at least a year. Where do you stand on this issue?

Whilst I have reservations, I am not implacably opposed to the abolition of the requirement of corroboration in Scots law.  Other legal systems seem to manage well enough without corroboration.  However, as the Scottish Government’s Justice Secretary, Michael Matheson, has recognised, the question of the other safeguards that are required in the event of abolition requires careful consideration. The fact that the SNP Government has decided not to proceed with the removal of corroboration requirement pending consideration of the recommendations in the independent report of Lord Bonomy’s Post Corroboration Safeguards Review Group shows that they are willing to have a debate and listen to the views of outside agencies and stakeholders and to take them on board. 

When the debate started I was concerned that there was a widespread misapprehension that abolishing corroboration would make it easier to obtain convictions in rape cases. Such a view would be mistaken.  Other legal systems which do not require corroboration do not have significantly higher conviction rates in rape than in Scotland.  However, the debate has now moved on to being one about access to justice. I believe that access to justice should be access to effective justice. This means improving the way in which we investigate and prosecute sexual crime. In my experience as a specialist sex crimes prosecutor there are  a  number of challenges to be faced in taking successful prosecutions of rape and other sexual offences and the requirement of corroboration is only one of them. In fact, the more independent evidence which is supportive of the complainers account one is able to lead the better,in a situation where it is otherwise the complainer’s word against that of the accused, and the standard of proof is beyond a reasonable doubt.

The Scottish government has already taken a number of steps to improve access to justice  for the victims of sexual crime. These include setting up the specialist National Sex Crimes Unit of which I was an inaugural member and extending the rights of vulnerable witnesses through the Victimsand Witnesses (Scotland) Act 2014. Their recent consultation on further measures to tackle sexual offences - Equallysafe – Reforming the criminal law to address domestic abuse and sexual offences -  sought views on a number of issues including the need for special jury directions in sexual offences cases without the need to lead expert evidence in every case. Such directions are commonly used in other jurisdictions.
TheLawMap: You are the co-author with Professor Lindsay Thomson of "Mental Health and Scots law in Practice". Recently a Public Law Project brought a judicial review to suggest that the Employment and Support Allowance (ESA) discriminates against people with mental health problems, learning disabilities and autism (http://www.rethink.org/get-involved/campaigns/unfair-wca/wca-judicial-review-faq). Is this an ethical or a legal challenge?
It is both an ethical and a legal challenge and an issue about which I care passionately.

A growing body of evidence from charities and campaign groups has shown that aspects of the present UK government’s programme of welfare reform has harmed the finances and well being of disabled people and their families, particularly people with mental health problems.

In 2014, SAMH (the Scottish Association for Mental Health) published research entitled Worried Sick: Experiences of Poverty and Mental health in Scotland  which found that 79% of their service users had suffered reduced finances due to welfare reform. The report also found that 98.1% of their service users said their mental health had deteriorated as a direct result of the changes, with 48% less able to engage in social and community activities.  The charity has also recently taken part in work with the Scottish Mental Health Partnership, which identified particular problems with Employment and Support Allowance for people with mental health problems.

To further their understanding of the impact of both sanctioning and other issues relating to welfare reform on people in Scotland with mental health problems, earlier this year, SAMH held a focus group with trainees at a service which they run in my constituency.  Redhall Walled Garden offers emotional support and training in horticulture, conservation, maintenance skills and IT skills for people with mental health problems. The service aims to provide a safe environment where people can learn to deal with the challenges of recovering from enduring mental health problems, encouraging lifestyles which are positive, sustainable and health oriented.

Fifteen trainees shared their experiences of welfare services in the current climate andI was pleased to be asked to launch the report of their findings. It did not make happy reading. The story that emerged was of people being disbelieved by assessors who did not appear to be well trained or experienced in mental health and of an assessment process which was in itself stressful. The trainees experienced ignorance and stigma in respect of their mental health both from Job Centre staff and members of the public. The cumulative effects of sanctions and the whole assessment process impacted adversely on the trainees’ mental health. While this report reflects the experience of only one group of people,  the trainees’ experiences do add to a growing body of research which has identified similar concerns regarding the impact of welfare reform on people with mental health problems.

Yet in the Welfare Reform and Work Bill currently before the Westminster Parliament the UK Government is proposing more changes to the welfare system which will further impact upon people with mental health problems. In particular, changes to the payment of Employment Support Allowance to those assessed as capable of some work related activity will mean that there will be no additional funding to cover the cost to the individual of their illness.  The SNP as a group at Westminster are leading the opposition to these changes.

TheLawMap: In your consideration, what would be the major constitutional issues to affect the UK in the coming decades?

In the immediate future it’s the repeal of the HRA and the threatened withdrawal from the ECHR which I have already discussed. There is also the threat of a British exit from the European Union. If England votes to leave the EU and Scotland votes to remain in and Scotland therefore faces being taken out of the EU against her this could be a catalyst for a second referendum on Independence which I believe my side would win. 

I believe that it is not in the interests of either Scotland or the UK to follow an isolationist agenda.  However, if that is what the people of England want, their wishes must be respected but so likewise must the will of people living in Scotland. Opinion polls have consistently shown that the majority of people living in Scotland wish to remain part of the EU. This is another area where the narrative should be challenged. We need to educate people about the benefits of EU membership whilst also recognized that the Union must be reformed from inside.

The Prime Minister’s agenda of English votes for English laws is also a major threat to the integrity of the Union. If he gets his way, two classes of MP will be created within the UK Parliament, which is not acceptable. I believe that the proper solution to the problem he identifies is an English parliament or a federal solution. Although, obviously my favoured solution is Scottish Independence!

Finally, I believe that the anomaly that is the unelected, undemocratic House of Lords has no place in a modern democracy and requires to be addressed.  This unelected, undemocratic chamber is now the second largest in the world, after China, with each peer able to claim a £300 a day attendance allowance and no public accountability. Scottish Lords alone cost the taxpayer over £2 million a year at a time of austerity. The SNP does not take up seats in the Lords because we do not see unelected legislators as a form of legitimate democratic governance and we want to see the House of Lords abolished. I believe that if the UK is to have a second chamber going forward it should not be beyond our wit to make it democratic and unaccountable, after all, other countries manage to do this.

TheLawMap: Across the world, historically, we have seen so many legal minds enter the realm of politics. What are the qualities embedded in legal training and the practice of law that allow an accomplished lawyer to become a successful politician campaigning on issues close to their heart?

Knowing how to put one’s argument well is undoubtedly a skill that transfers well from legal practice to political life.  The analytical skills that one learns as a lawyer, in particular, the ability to digest a brief quickly, identify the salient points and put them across succinctly is invaluable. The skills necessary to be a good cross-examiner are also useful at Government Department question times in the House of Commons and in committee.  Finally, the ability to work collaboratively, speaking to opponents, finding commonground and the negotiating skills that one learns as a good lawyer are also useful.

With special thanks to Joanna Cherry QC for her very valuable time. She can be followed on Twitter and  her participation in parliamentary debates are available via the parliament.uk website. The title of this interview borrows from Scotland's beloved poet Robbie Burns' poem:

"The birth-place of Valour, the country of Worth;
Wherever I wander, wherever I rove,
The hills of the Highlands for ever I love."

- Robert Burns (1759-1796) .


Regulating nanotechnology & the quality of corporate legal advice

An interview with

Dr Steven Vaughan


Steven Vaughan researches the legal profession, corporate finance and environmental law. He spent a decade as a solicitor in the City of London, before becoming a legal academic. He has advised the European Parliament and worked with the British Standards Institute to develop the world’s first publicly accredited standard for companies on the regulation of nanotechnologies. He is currently an ESRC Future Research Leader, working on a funded 3 year project that explores the nature and extent of advice provided by corporate lawyers.

TheLawMap: From being a City solicitor to an academic, what drew you to legal academia and research?

I got my training contract at the end of the second year of my law degree. I loved university and had always wanted to do a PhD. I did my training, qualified and then moved law firms. I so enjoyed being a solicitor - the pace of transactions, my deals being in the papers, my wonderful colleagues (and the fantastic salary...) - but after a while I wanted a change. So I started my PhD and carried on working as a solicitor part time for my firm. After a few years, I had to make the decision: either stay in academia full time, or go back to practice, as trying to do both was killing me. I chose academia and love the freedom that I have to pursue my own research interests and to inculcate in students the same sense of wonder about the law and society that was given to me when I was a student.

TheLawMap: Why was there a requirement for a publicly accredited standard for companies on the regulation of nanotechnologies?

Nanotech is the ability to engineer on the scale of the tiny (at billionths of a metre). It's a field of exciting possibilities. However, the law is often slow to keep up with scientific progress. For large companies with their own in-house lawyers, or with the money to pay for external law firms, knowing how the law applies to their products, designs, employees etc is one thing. For small companies, for start-ups, it's quite another. The publicly accredited standard, published by the British Standards Institute, is a free-to-use guide on how the law in England & Wales applies to nano, where the gaps are and what might be the challenges as regards compliance. I was lucky enough to be part of the team that helped to write the standard, led by my colleague Professor Robert Lee and working with Dr Elen Stokes of Cardiff University.

TheLawMap: Would you elaborate on the aims and objectives of your ongoing research exploring the nature, and extent of advice provided by corporate lawyers?
For the last 20 years, there has been academic interest in exactly what it is that corporate lawyers do: do they just give clients legal advice, or is there something more? If, as many people claim, there is not much law in corporate legal practice, what is so special about corporate lawyers? In a post financial crisis world, I am also interested in how corporate lawyers and corporate clients perceive the lawyer-client relationship. Do clients want or expect their lawyers to advise them, say, on risk? Do corporate lawyers feel responsibility for the actions their clients take? These are the sorts of questions my project seeks to answer.

TheLawMap: What are the principal challenges in maintaining a high standard of legal ethics in an increasingly diversified legal profession?

We know, from empirical legal research, that context is one of the most important factors as regards legal ethics. So, where you work, who you work for, how your organisation pays you and gives you bonuses, the attitudes of the senior management team etc etc - all these things matter. The profession has diversified significantly and challenges include an increasingly globalised legal services market (where norms in Country A may be very different to norms in Country B) and increased competition for legal services. The size of the profession also poses a challenge to the legal regulators who are, I think, understaffed and under resourced.

TheLawMap: In global terms, what concerns you the most in relation to environmental laws?

Environmental law is a hodge podge of different, overlapping legal regimes. And much of it is reactive, rather than proactive. We also spend far too long on the politics and lobbying of causes.

TheLawMap: If you could change something within the legal profession what would that be?
Two words: legal aid. The Coalition Government is denying access to justice to some of those most in need. This has to stop.

With special thanks to Dr Steven Vaughan for his valuable time. He can be followed on Twitter and interacted with via Linkedin. In 2012, Steven gave a talk at the Hay Festival on controlling risks to the public from nanotechologies. A recording of his talk can be heard here on the Hay Festival website and downloaded as a podcast.


'A discourse on the first principle of regulation for lawyers'

An interview with

Iain Miller

Commercial Dispute Resolution Partner

Iain Miller is at the height of his profession. He was recognised by The Lawyer magazine in its 'Hot 100 list for 2013'. He has been ranked as a Star Individual in the 'Chambers & Partners Guide to the UK' in the field of professional discipline and as a leading individual in the Legal 500 in the field of professional discipline. He has acted for the Solicitors Regulation Authority and its predecessors since 1994, and had also acted for the Bar Standard Board, the Architects Registration Board, the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman. His publications include the Alternative Business Structures, A Compliance Guide.   

TheLawMap: What are the required qualities to be a successful commercial dispute resolution lawyer?

The great thing about litigation is that it requires so many different skill sets.  Technical knowledge of the law and procedure is a given.  I think what distinguishes those that are really good is the ability to think creatively about how best to solve the dispute in their client's best interest.  That normally does not involve attempting to pummel the other side into submission by taking every point.  The best cases are those where all the parties work together to narrow the issues and try to find a satisfactory outcome.  However, those cases are depressingly rare and there is therefore  clearly a need to be level headed as adversarial litigation does involve some annoying and difficult moments.  Finally, as with everything else in life a sense of humour is invaluable.

TheLawMap: Lumsdon & Ors [2014] EWHC 28, unsuccessfully challenged Quality Assurance Scheme for Advocates (‘QASA’). What are the main challenges to QASA?

QASA seeks to address the quality of advocacy in the criminal courts.  Whilst most advocates are of a high quality there seems to be a widespread concern that some are not.  Few things are more important than ensuring competent representation in a criminal trial.  The scheme of QASA is to assess advocates as competent at 4 different levels which reflect the complexity of the trial.  To be assessed as competent at a particular level an advocate needs to nominate up to 3 hearings and the judge will complete an assessment form which will be sent to the advocate's regulator.  The scheme was developed jointly by the Solicitors Regulation Authority, Bar Standards Board and Ilex Professional Services and approved by the overarching regulator, the Legal Services Board.   The judicial review challenge raised a number of grounds.  These primarily centred on whether the role of the judge in completing the assessment affected the fairness of the trial process because, for example, the advocate may be inhibited in taking points on behalf of his or her client that offended the judge.  Issues were also raised as to whether the scheme complied with the Provision of Services Regulations and whether the appeal process from an assessment was fair.  The application was dismissed in both the Divisional Court and the Court of Appeal.  The Claimants have now sought permission to appeal to the Supreme Court.  My firm acts for the Bar Standards Board in the case.

TheLawMap: Legal Services Act 2007 created Legal Service Board (LSB) an independent body responsible for overseeing the regulation of lawyers in England and Wales. You have represented regulatory bodies SRA, BSB and others, do you think LSB is breaking down regulatory barriers to competition?
The biggest impact of the LSB is that it started from an assumption that legal regulation was no different from other areas of regulation and that many of the principles of market regulation could be equally applied in the context of law.  The main strand of work by the LSB has been directed at removing barriers to competition.  This is based on the principal that if competition increases then the accessibility of legal services will increase and their cost will go down.  It has been fascinating to witness this thinking becoming reflected in the approach of the front line regulators.  However, the changes driven by the LSB have also exposed the structural limitations of the statutory scheme set up by the Legal Services Act.  The general consensus is that the scheme needs to be amended but this will involve primary legislation which may be difficult in the near future.
TheLawMap: You are the coauthor of the Alternative Business Structures published by the Law Society publications. Since October 2011, 350+ licences have been issued by the SRA and the CLC. Early this month EY (the third of the ‘big four’ accountancy firms) was granted an ABS licence by the SRA. In your opinion, what would be the principal benefit of ABS to the legal profession in the long term?

The introduction of external legal ownership of those who provided regulated legal services will radically change the market.  It means that it is no longer necessary to go to a law firm to get legal services.  The big 4 accountancy firms understand this and although they seem to have different approaches, they realise that legal services can be bolted onto the business services they already provide.  Similar things are happening in the personal injury market where insurers are integrating legal services with their other businesses.  My view is that within 10 years most legal services will be delivered as part of another service.  For law firms this means that they need to think about how they need to adapt to this change.  There will always be a place for specialist legal advice by law firms or by the bar but the remaining firms are likely to be less highly leveraged and more specialist.

TheLawMap: Who or what inspired you to be a lawyer?

I would like to say that I was inspired by a particular episode of Petrocelli (if you are under 45 you may need to look it up!) but the sad reality is that doing a law degree seemed a useful thing to do and that just led me on to becoming a solicitor.  However, I have been very lucky to work with a number of brilliant people during my career who have inspired me and shown me what excellence looks like.  These include John Fordham at Stephenson Harwood, Geoff Prevett at Eversheds, Nick Wright at Wright Son & Pepper and Tim Dutton QC at Fountain Court.  I am also very fortunate that I now work with a team of solicitors who are way more talented than I am.  It is always better to be lucky than good.

TheLawMap: If you could change something within the legal profession, what would it be?

I think we confuse words for value.  Skeleton arguments, witness statements and pleading seem to be getting longer and longer.  The ability to make the complicated simple is what every lawyer should aspire to.

With special thanks to Iain Miller for his valuable time. He can be followed on Twitter and interacted with via Linkedin.


'We must not make a scarecrow of the law'

An interview with

Kevin Maguire

Rule of Law Development Advisor

The 'Rule of Law' as a concept is fundamental to governance in a civil society. Yet, there are great differences at times in how the process of justice is implemented. In this wide-ranging interview Kevin Maguire takes us on a fascinating journey through his experience in legal development work in some of the most challenging conflict and post-conflict regions of the world. He talks about the historical importance of alternative dispute resolution in some societies as well as the need for greater support from legal professionals of the developed world towards the developing world.

Kevin Maguire is a lawyer from Melbourne, Australia. He practised law at the Melbourne Bar and Legal Aid before focusing on international development work in the field of 'rule of law' in the late 1990s. He has worked in a number of countries in Asia, the Pacific, Africa and the Caribbean in his rule of law work including in Cambodia, Fiji Islands, Sierra Leone, Sudan and Bangladesh. His international development work has been in conjunction with international organisations such as the United Nations, AusAID, the Commonwealth of Nations and the Special Court for Sierra Leone (War Crimes Tribunal). 

TheLawMap: Having worked in Cambodia, Fiji, Sierra Leone, Sudan, Bangladesh and many other countries, are there noticeable similarities in the goal and focus of the legal profession across these nations?

In my work as a rule of law development adviser I worked mainly with the courts and the judiciary but necessarily became involved with the lawyers in these jurisdictions. The problems they face in these countries are significant. All these countries have at times been disrupted by conflict from the genocide in Cambodia to the series of coups in the Fiji Islands. Many of those who suffered as a result of these conflicts have been lawyers, for example, it is believed that no lawyers survived the rule of the Khmer Rouge in Cambodia.

In these circumstances the legal profession has faced considerable problems in trying to re-establish itself. Often the lawyers have been poorly trained and lack the skills necessary to be competent lawyers, and there has also been a serious shortage of lawyers in some of these countries.

In this environment of political upheaval resultant from conflicts, it has led to significant levels of corruption and the legal profession have not been immune from that. In the courts in many of these countries it is corruption that will decide the outcome of a court case. Unfortunately lawyers play a significant role in this process. I recall a discussion I had with the head of the Human Rights Commission in one of these countries who was also a law professor at the law school. He told me he came across a former student at the courts who was in tears and he asked what was causing him so much distress. The lawyer told his old law professor that his principal had sent him to court with money to pay a judge a bribe, and this was completely contrary to what he was taught by his law professor. The challenges these lawyers face are significant.

A particular challenge the legal profession faces in many of these countries is the lack of discipline of the lawyers. In some cases Bar or Law Societies do not exist, or if they do, they are ineffective and unable to control and discipline their lawyers. In some cases they are not able to ensure that the lawyers are in fact legally qualified. This is important as in one of these countries private “law schools” have emerged where it is generally accepted that students pay for a degree without even attending courses.

It is important to note however that there have been a number of committed and highly competent lawyers I have met in my work in these very same countries, who are aware of the problems and doing what they can in very difficult circumstances to perform as a lawyer and to develop the legal profession in their country.

I think it is important that lawyers from developed and disciplined legal professions should do what they can to assist these lawyers in their difficult task of developing their professions and ultimately the rule of law in their countries.

TheLawMap: Following on from the question above, does the legal process as a means to resolving conflict have exactly the same meaning everywhere in the world?

One of the most interesting features of my work has been identifying and examining different means of resolving disputes in the countries I have worked in. It should be remembered that the formal justice system as we know it is a relatively new process, and based upon dispute resolution systems that have been developed over many centuries.

A good example is Sudan and the region of Darfur. Dispute resolution systems have been developed over many years in the region and extend to deal with regional as well as individual disputes. At the regional level they have a system that deals with disputes amongst the regions of Darfur. At the tribal level they also have systems that deal with tribal disputes, and finally at the local level they have systems that deal with disputes within the tribes and amongst individuals.

This has all been severely fractured by the war that remains ongoing, but it does offer a good example that societies do draw on established dispute resolution systems without relying on the formal justice system as we know it. It is also interesting to note that the senior leaders in Darfur had told Kofi Annan in his report on the Darfur war, that they believed many of the problems could be solved by using these established dispute resolution systems.

Another interesting system of dispute resolution is the one I came across in Zambia where they have set up “local courts” which are informal dispute resolution hearing where three person panels conduct hearings without the presence of lawyers. They therefore combine elements of the formal justice system and more traditional dispute resolution. I am told that over 70 percent of the cases that come before the legal system in Zambia are resolved by these courts.

These are just two examples where dispute resolution is not dealt with by the formal justice system as we know it, but by more traditional means or a combination of the old and the new. I believe that countries like Sudan and Zambia do have a comparative advantage where they are able to draw upon traditional means of dispute resolution, whereas we in developed countries do not have that advantage. We could learn a lot from these countries and their manner of dispute resolution.

TheLawMap: What does your present role as a rule of law development adviser entail?
The question that is posed is a good one and the answer has only become apparent to me over time. I recall when I first started my work on an AusAID justice project in Cambodia I had little or no knowledge of what was required of me as an adviser. Yes, there were project documents and outcomes and activities and all the paraphernalia that comes with documented development work, but I really didn’t understand that ultimately it was about assisting what my counterparts wanted to achieve. That was assisting them to develop the rule of law in their country, which would ultimately lead to opportunity for all their citizens to resolve disputes in a fair legal system.

The countries I have worked in all have had different needs from the very basic issues that arise in a country like Cambodia to a well-established justice system like the Fiji Islands which needed just a little modernising in things such as case management.

My work is mainly with the courts, and as such the work has been with the judiciary and court staff. By necessity it also involves work with the police, prisons, legal profession and legal NGOs which all form part of the legal system in any country. This work could be anything from developing training departments so that my counterparts can develop and deliver effective training programmes for the judiciary and court staff, to providing some form of material support.

It has also involved an informal mentoring role. I have noticed over time that once my counterparts have become comfortable with me and trust me, they will come and seek advice on matters from court process to how I would approach a particular legal issue. I have also noted that once I have established trust with my counterparts that I have been able to achieve a great deal more in my development work.

Beyond the training, material support and mentoring/advice, I believe that my presence, and the presence of other advisers, has made it easier for the courts to do their work. I believe that the presence of advisers from other countries makes them feel that they have support in environments where it is very difficult to remain impartial and support the rule of law. I recall a conversation with a judge in Cambodia who told me that his work was a lot easier when I was around because he did not get as much interference in his work from those that tried to influence the outcomes of his cases.

So my work is much more than what is documented in project documents, it is as much about advice and support for the courts in the countries I have worked in. Ultimately, as I have already expressed, it is all about developing the rule of law to a point where all citizens whether wealthy or poor, weak or powerful, have a fair opportunity to have their disputes resolved according to law.
TheLawMap: If you could change something within the legal profession what would that be?

I am not sure that there is any major change to the legal profession I would advocate, but I do believe that we as a profession need to remind ourselves of our responsibilities as lawyers. I recall when I first began practising law one of our High Court justices, Harry Gibbs, expressed concern about the profession becoming a business, and reminding lawyers that it is a profession. Those words have remained with me as I see much of the work being done by many lawyers is regarded as “business”.
I also recall when I was doing the Bar Readers course in Melbourne, one of the participants said that as far as he was concerned his practice was a “business” and that is the way he intended to conduct himself.
It is of course not a “business” it is a profession, and lawyers need to be reminded of this. Being part of a profession comes responsibilities, for example to act as an officer of the court and not to engage in practices that undermine the integrity of the court system. As a profession I believe that we should also take a wider look at our practice to ensure that people do have access to the legal system, and have the advice that those who can afford legal advice have become used to.
This of course raises the on-going issue of legal aid and what role lawyers should take in its provision. Do we as lawyers volunteer our skills to ensure that all have access to competent legal advice? By volunteering our services do we enhance the rule of law and access to justice?
I don’t want to appear to be lecturing, but I believe lawyers should always be asking themselves these questions, and when it comes time to “hang up the wig and gown” will we be able to look back at our practice of the law and say, yes I contributed to access to justice and ultimately to the rule of law, and fulfilled my responsibility as a lawyer and officer of the court.

TheLawMap: Is there a personality from the past or present within the ranks of the legal profession or the judiciary who you admire the most?

There has not been any individual that I have particularly admired, but having said that, I was impressed with a lawyer from London by the name of Desmond de Silva QC (now Sir Desmond) who I worked with at the Special Court for Sierra Leone where I was the legal adviser to the Registrar. Desmond was the deputy prosecutor when I arrived and went on to become the Prosecutor when David Crane, the original prosecutor, left the court to return home to the USA. What impressed me in particular was Desmond’s commitment to seeing that justice was done for the people of Sierra Leone, and in doing so, sacrificed his practice as a senior barrister in London and the financial returns that came with that.
Desmond was particularly focused on ensuring that he did everything within his power to ensure that Charles Taylor was arrested and brought before the court to be tried. He travelled extensively and lobbied many, including political figures, to ensure that Taylor was arrested, which he ultimately was. There were many people who willingly (and not so willingly) contributed to the arrest of Taylor, but Desmond to my mind was instrumental in that process.
Desmond is now back in the UK and has resumed his practice, and to his credit, he continues to contribute to the rule of law at the international level having done work for the United Nations Human Rights Council to investigate Israel’s interception of the Gaza-bound flotilla, as well as more recently chairing an inquiry into the torture and execution of detainees in Syria.
I think we as lawyers would like to be able to say that we contributed to the development of the rule of law, whether nationally or internationally, at least in part, compared to the contributions that Desmond has made.

With special thanks to Kevin Maguire for his valuable time. He can be followed on Twitter and interacted with via Linkedin. The title of this interview is a line from William Shakespeare's play 'Measure for measure'.