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) .