Leaving the EU: Implications for Scotland

Debate between Jim Shannon and Joanna Cherry

Tuesday 3rd July 2018 Westminster Hall

[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairmanship, Sir Roger. I congratulate my hon. Friend the Member for North Ayrshire and Arran (Patricia Gibson) on securing the debate. I say gently to my friend the hon. Member for Strangford (Jim Shannon) that many of us in Scotland who come from the Catholic tradition find the marches he described that Arlene Foster attended last weekend intimidating, upsetting and quite offensive. There is no place for sectarianism in modern Scotland. Perhaps it was not a very good idea for his party leader to come to that Orange parade in Fife last weekend.

[Jim Shannon]

Will the hon. and learned Lady give way?

[Joanna Cherry]

I will make some progress. I just wanted to make that statement.

I want to speak about the implications of Brexit for security, judicial co-operation and law enforcement in Scotland, which the UK Government have overlooked to date. That is not my view; it is the view of the distinguished former judge at the European Court of Justice, Sir David Edward. He is also a distinguished former judge on the Scottish bench. When he gave evidence to a Select Committee at the Scottish Parliament last year, he said that so far in their negotiations with the EU, the UK Government have overlooked the significance of the separate Scottish legal system, the Scottish judicial system and the Scottish prosecution system in relation to justice and home affairs issues. He went on to describe the UK Government’s paper, “Enforcement and dispute resolution”, as

“an undergraduate essay that would have failed.”

He says that those writing such papers are not aware of the problems posed by the separate Scottish legal system and do not want to hear from experts who have offered to help.

I declare an interest, because in a former life I was senior advocate depute at the Crown Office. I worked in these fields, and I am well aware of how European Union law has become woven into the fabric of Scots law over the past 40 years. Serious organised criminality and terrorism do not respect national borders. If we leave the EU without securing continued participation in EU criminal justice measures, it could mean Scotland losing the common set of tools that allows law enforcement agencies in Scotland and across the EU to tackle international challenges effectively.

The Scottish Government have asked the UK Government on numerous occasions to share their planning on key issues that will have implications for justice and home affairs in Scotland, but they have failed to do so. Indeed, the UK Government’s future partnership paper, “Security, law enforcement and criminal justice”, which was published in September 2017, was prepared without any engagement whatever from the Scottish Government. It did not even acknowledge that Scotland is a separate legal jurisdiction with its own criminal justice, prosecution and police agencies. Just two months ago, the UK Government published presentation slides titled, “Framework for the UK-EU Security Partnership”. The slides cover internal and external security and were used in the EU negotiations, but they contain matters that directly affect Scotland, including operational matters that fall under the responsibility of the Lord Advocate, the head of Scotland’s prosecution system. The slides were prepared without any consultation with the Scottish Government or the Lord Advocate, nor were the Scottish Government advised of the publication of the slides.

Safeguarding Scotland’s independent justice system necessitates the Scottish Government’s full involvement in the negotiations between the UK Government and the EU. To date that has not happened. The Scottish Government have been cut out of any involvement in the negotiations, and the implications for justice and home affairs in Scotland are therefore not being recognised. I want to hear what the Minister is going to do about that.

Before I sit down, I will give way to the hon. Member for Strangford ).

[Jim Shannon]

I thank the hon. and learned Lady for giving way. I understand her position, but I want to put on the record that we are not a sectarian organisation. We are there to encourage people to enjoy culture, history and tradition, and no one should—nobody does—feel threatened by that in Scotland. We do not feel threatened by it in Newtownards whenever we are parading there on 12 July, or across the Province on other days.

[Joanna Cherry]

I am grateful to the hon. Gentleman for his intervention, but I can tell him that people from the Catholic community do feel threatened and offended by these demonstrations. I feel threatened and offended by them, and many of my constituents write to me asking how an organisation that traditionally marched to intimidate a section of the population can be allowed to continue to do so in a modern democracy. I realise the hon. Gentleman might like to change that, but that is the perception. Without doubt many people from the Catholic tradition will have cleared out of Cowdenbeath last weekend in fear of what they might experience if they remained.

Public Legal Education

Debate between Jim Shannon and Joanna Cherry

Tuesday 15th May 2018 Westminster Hall

[Joanna Cherry]

I very much encourage those who have benefited from a free legal education in Scotland and beyond, and who are now doing well out of being lawyers, to engage in pro bono work. I am proud that the Faculty of Advocates and the Law Society of Scotland do that and encourage firms and individual advocates in Scotland to do it too. I will return to that in a moment.

The Edinburgh Napier law clinic is in my constituency. Edinburgh Napier University is a relatively recent deliverer of legal education in Scotland, but I am proud to say that staff and students have set up a voluntary clinic to provide free legal advice and assistance. We have a considerably more generous legal aid scheme in Scotland than in England and Wales, but nevertheless people fall through the cracks, and they can benefit from law clinics such as the one established by Edinburgh Napier University. One of the clinic’s main objectives is to broaden the concept of access to justice, and that is really what this debate is about, at least in part. Public legal education is about educating people and giving them access to justice.

I am also proud that Edinburgh University, which is not in my constituency but is my alma mater, has a free legal advice clinic, as does Glasgow Caledonian University, the University of Strathclyde, Aberdeen University, Robert Gordon University in Aberdeen and the University of the West of Scotland. Those law clinics are thriving. Many MPs and Members of the Scottish Parliament refer their constituents to them from time to time.

The Faculty of Advocates, which is the Scottish Bar, of which I am a member, also runs a law clinic or a free legal services unit, which is part of its commitment to promote access to justice. That means that members of the public can be referred through certain organisations, such as citizens advice bureaux, to get free advice and representation from practising advocates in Scotland.

[Jim Shannon]

Has the hon. and learned Lady experienced the issue of local citizens advice bureaux being deluged with personal independence payment and employment and support allowance forms? In a great many cases, they find themselves unable to give that legal advice because of the change in the benefits system.

[Joanna Cherry]

Yes, I have. My constituency office in Edinburgh South West, on Dundee Street in Fountainbridge, is next door to the local citizens advice bureau in Fountainbridge library. We work closely together on this sort of issue. Citizens Advice provides an amazing service. In my experience, Members of Parliament who work in conjunction with it can have successful outcomes in fighting issues of administrative justice in the UK social security system. That is a much-neglected area; we need to look at how the social security system is functioning or, in my experience, not functioning, and failing to properly respect people’s rights. We need to look at all the facts of the case. As in the immigration field, there seems to be a considerable amount of capricious decision making, which is why it is important for people to have access to legal assistance in facing down that unfair decision making.

I am happy to say that on a number of occasions, I have referred constituents to the free legal services unit at the Faculty of Advocates with good outcomes. The Faculty of Advocates also arranges open days to encourage students from schools across Scotland to come and see what life as an advocate is really like.

I am proud that the Faculty of Advocates has done much to increase its diversity since I was called to the Bar in 1995, when I was one of a small number of women advocates in Scotland and there were no female judges on the senior Scottish bench. Now, our second most senior judge is a woman and we have many women on the senior judicial bench in Scotland, but there is still quite a long way to go before we achieve parity with the men.

There is also the issue of trying to encourage more people from working-class backgrounds and from diverse and BAME communities to come into the law. As well as holding open days, the Faculty of Advocates runs a couple of mini trials—or mock trials—initiatives, which are particularly directed at kids from schools and backgrounds from which people would not normally be expected to end up at the Bar, to try to break down the barriers and to show that—if I am allowed to say this—the law can sometimes be fun, and that it is not just for posh people who went to a private school. I hope that my former colleagues are making some progress in that area. They run the mock trials as part of the Citizenship Foundation, which has been mentioned. It is a cross-UK foundation that is supported north of the border by the Faculty of Advocates.

Another way that legal professionals can contribute to legal education is by providing briefings to parliamentarians working on Bills. In the three years that I have been here, I have had invaluable assistance from briefings provided by the likes of the Law Society of Scotland, the Law Society of England and Wales, the Bars of Scotland and of England and Wales, and organisations such as Liberty, and Justice. I am proud that the Faculty of Advocates actively contributes to law reform north and south of the border under the excellent chairmanship of Laura Dunlop, QC, who was my pupil master, although she is not responsible for any of my mistakes—only for the good parts.

The Law Society of Scotland also provides fantastic briefings. I could not have done my job as an MP properly without its assistance in the last few years, particularly the assistance of Michael Clancy, who is the head of law reform there and is well known to parliamentarians from all political parties. In more general terms, it has also engaged in significant activity in the area of public legal education.

The hon. Member for Morecambe and Lunesdale (David Morris) mentioned StreetLaw. The Law Society of Scotland participates in the StreetLaw project. That involves sending out StreetLaw trainers to teach students and schoolchildren about the law, the legal process and the sort of knowledge and skills that students can use to recognise and prevent legal problems in their lives, and perhaps also to prompt them to consider participating as legal professionals in later life.

All the Law Society of Scotland’s StreetLaw trainers are law students studying in Scotland who undertake this work on a voluntary basis. I am very proud to say that they are supported by two major international law firms in doing so—CMS Cameron McKenna Nabarro Olswang, and Pinsent Masons. They have also had support from the Law Society of Ireland and from international leaders in public legal aid education, such as Harvard University, Georgetown University and Penn State University.

As well as participating in the StreetLaw project, the Law Society of Scotland participates in a charitable foundation, which was set up to give bursaries to students and to support summer schools, schools programmes, visits and events. The Law Society of Scotland is also playing an active role in a campaign to increase diversity in professional services in Scotland.

Just before I draw to a close, I will add a note of caution. An awful lot has been said today about the importance of public legal education, but public legal education should never be viewed as an easy way to plug the gaps left by legal aid cuts. Access to justice should always be our paramount concern. Public legal education should be more about developing capacity and not really about answering specific legal problems because of unmet needs due to gaps in the legal aid system.

Recently we saw a leaked Ministry of Justice report that revealed judges in England and Wales are concerned that legal aid cuts are leading to an increase in the number of defendants without legal representation. I think it is fair to say that the extent to which legal aid has been cut in England and Wales has pushed many people out of eligibility for it in crucial areas of justice, meaning that vulnerable people are often left without legal aid and appear in court or before a tribunal without a lawyer. That is not just my view; it is also the view of many of the witnesses who have given evidence to the inquiry by the Joint Committee on Human Rights into the enforcement of rights. It is also the view of Amnesty International, which has said that the cuts included in LASPO—the Legal Aid, Sentencing and Punishment of Offenders Act 2012—have created a two-tier justice system in England and Wales.

Recently in Scotland, we had an independent review of our legal aid system. It highlighted that, despite the fact that we spend less per capita in Scotland on legal aid than is spent in England and Wales, legal aid is far more widely available in Scotland and covers a wider scope of categories than it does south of the border. As I say, that was not a Scottish Government review but an independent review, chaired by Martyn Evans, the chief executive of the Carnegie UK Trust. It shows that it is possible to have legal aid that is more widely available without actually spending any more money. So, where there’s a will, there’s a way.

I end by urging the Solicitor General to be cautious about letting public legal education plug the gaps that legal aid should fill, and I urge the UK Government—as I have done on previous occasions—to carry out an independent review of the legal aid system in England and Wales, rather than the in-house Government review that is going on at the moment.