Joanna Cherry: Open justice needs to be embedded in Scotland's courts

I intend to do that in my column next week once I have sight of the amendments to the motion on independence strategy put forward by Humza Yousaf and Stephen Flynn for SNP conference and, I hope, confirmation of the nature and extent of the debate which will take place.

The bare-faced cynicism of Rishi Sunak’s backtracking speech on net zero this week has simply underlined the need for Scotland to be independent to tackle the most challenging issues of our time. Just as the cost of living crisis is a crisis made at Westminster, so now a government Scots did not vote for is hampering our ability to tackle the climate crisis in Scotland. To take just one example, the Scottish Government’s more ambitious plans on phasing out diesel and petrol vehicles may now fall foul of internal market rules.

The other big story in the news this week was the court hearing of the Scottish Government’s petition for judicial review of Alister Jack’s Section 35 order blocking the Gender Recognition Reform Bill (GRRB). I am not going to expend any more column inches on the merits of the policy underlying the fight between the UK and Scottish governments, but I do want to highlight the harsh reality that, in most instances, in a fight with Westminster over the limits of devolution, the Scottish Government is destined to be the loser.

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That is why I believe we need to stop banging our heads against the brick wall of devolution and focus instead on using such powers as devolution affords to tackle the most important issues of the day while making the case for independence.

Devolution does what it says on the tin. Power devolved is power retained. Section 35 is the inevitable result of that. All this week’s case is really about is measuring the extent of the power afforded by S35. In truth, it is not a great constitutional battle at all but just a dreary reminder that the parliament in Edinburgh does not embody the sovereignty of the people of Scotland in the same way as it would if it was an independent parliament.

The real constitutional battle was the issue of whether Holyrood had the power to hold a referendum on the issue of independence. If only it had been approached with the enthusiasm and commitment we have seen in respect of the GRRB, with confident supportive legal advice, a carefully crafted bill and the weight of the Scottish Parliament behind it, we might be in rather a different position than we are now.

However, again, there is no use crying over spilt milk. While we can and must learn from the mistakes of the past, we must also look to the future.

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I would like to highlight one aspect of this week’s proceedings in court that I found troubling.

While it was great to see the Scottish courts streaming live on the internet for all with digital access to follow, those following closely would have found it hard to understand some of the arguments advanced by the Lord Advocate, not through any fault of her or the Scottish Government, but because she referred extensively to written arguments from interveners in the case, which, unlike those of the parties, were not published.

All the documents lodged with the courts by the Scottish and UK governments were in the public domain in advance of the hearing and could be accessed online. However, written submissions from four groups who had intervened in the case were not published in advance of the hearing, and I cannot understand why that should be the case.

Two out of the four have now been published because of pressure from some of the journalists who were trying to follow the hearing in court and online. While you can read the written submissions of Stonewall and the Equality Network online, those of the other two intervenors – Gendered Intelligence and the Institute for Constitutional and Democratic Research – are not yet public.

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The Scottish courts need to learn from this experience and introduce hard and fast rules that respect the principle of open justice. That justice must not only be done but be seen to be done is a statement of principle from an English court case which took place nearly 100 years ago, but the principle is still revered the world over. The statement was originally made in the context of the need to avoid bias or the appearance of bias, but the principle is of broader application. That is why our courts sit in public.

In the past, civil court cases such as this week’s judicial review were based largely on oral argument so that anyone sitting in the public gallery could follow the argument but nowadays, they tend to generate a huge amount of written material and if you can’t read that it is very difficult to follow what are now truncated oral proceedings.

In a recent UK Supreme Court case it was said that the default position should be that the public should be allowed access, not only to the parties’ written submissions and arguments but also to the documents that have been placed before the court and referred to in the hearing.

Of course, sometimes there may be good reasons for denying access, for example, to protect the interests of children and vulnerable adults, or for reasons of national security.

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However, open access should be the default position. But, as my colleague and co-founder of Lawyers for Yes, Jonathan Mitchell KC, observed this week, the Scottish courts have been dodging this aspect of the principle of open justice for a while and need to make some hard and fast rules enshrining it.

It was reported that the authors of the written submissions, Stonewall and the Equality Network, had initially resisted their publication. The journalists who pressed them on this did so because, they said, “Our job as journalists is to report court proceedings in the public interest accurately, fairly and in accordance with the law, an essential function in a democracy. If we cannot understand points which are being made in open court because we do not have access to relevant documents, that function is impeded, leaving the public to a certain extent in the dark.”

It should not have been left to journalists and online commentators to push the intervenors to publish their written submissions.

If they are going to be taken into account by the court, then they should be in the public domain, and it is the court’s responsibility to make sure that happens.

While the Court of Session is to be applauded for streaming the case online and allowing live tweets from the well-established and respected citizen journalist organisation Tribunal Tweets, across town at the Employment Appeal Tribunal where an important case is being heard on the definition of “worker”, Tribunal Tweets was refused permission to live tweet the case.

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The reasons for this decision are not yet in the public domain but it feels wrong.

Coincidentally, the case concerns a well-known writer, Gillian Philip, who was sacked by her literary agent and publishers for the crime of defending JK Rowling’s views on gender identity theory.

Robert Burns wrote: “Here’s freedom to them that wad read, Here’s freedom to them that wad write, There’s nane ever fear’d that the truth should be heard, But they whom the truth would indite.”

I think he would have wholly approved of the principle of open justice.