It is often perceived as a fringe interest, and despite being hardwired into every area of Scots law, has lacked a core for practitioners to focus on.  Steven Raeburn meets the student and the master who have given a home to stray Human Rights lawyers.  During 2009 the incoming President of the Scottish Young Lawyers Association, Rachael Gibson, told the Firm that she believed Human Rights work would figure more prominently in the regular work of the Scottish legal profession.  It may surprise those who do not consider Human Rights to be an aspect that interests them that you have no choice, because they are already interwoven into the law whether they are presently observed or not, and you better get acquainted with your duties, and sharpish.  It may also come as a surprise that the only current forum for Human Rights lawyers to congregate and discuss was formed only late in 2009, when the Scottish Human Rights Law Group was wrought into existence. By students.

Advocate Aidan O’Neill is the nominal – if reluctant – chair of the group, wrested into being by the drive and energy of former student and now trainee solicitor Susan Reddy who, together with a group of diploma students, took the bull by the horns to add a Human Rights choice to the 20 or so elective subjects options then before them.

“The course I studied as a Law student in Edinburgh University was one that was geared to making very good commercial lawyers. There were people like me who had hoped in some way to work in Human Rights law, so it was obvious to go and ask, if you are someone like me,” she says.

“My one reason for returning to study was to be a Human Rights lawyer. It doesn’t matter what the other 20 electives are.”

Aidan O’Neill, whose hopes for the nascent group are wide ranging and inspiring, is keen to see as broad a base of legal professionals as possible affiliate with the group to correct the present drift towards commercial priorities in the profession.

“Law is a very conservative profession and it attracts relatively conservative people. Human Rights legislation has been around for ten years, but the way it has been taught and understood is as a peripheral subject, if it is there at all.  EU law changes everything, and Human Rights law has the same potential,” he says.

“Traditionally, the way we have been taught law, is that there is ‘national law’, which is real law, and ‘international law’, which is nothing to do with us. Other legal systems regard international law as part of their own system. I spent a year at Princeton a year and a half ago. The isolationism that is implicit in American law is mind blowing. Back here, it is a much more open legal system now. Judges are willing and are interested in hearing what is happening in Europe. The passing of the Human Rights Act has opened up judges to hearing about how other countries deal with Human Rights. It has opened it up to better ideas.”

UK legal systems are taking a long time to adapt to the realities of the Human Rights regime. Police have adapted quicker to quash the nascent rights before their affirmation becomes habituated by the public and the courts, leaving the practitioners of the law with the challenge of seizing back the lost ground, a task that will only be possible to achieve if they recognise the universal penetration of fundamental rights into every area of law.

“One thing Aidan taught me on that first day in those first five minutes was not to look at Human Rights as a narrow category, but to see that it belongs in every aspect of law. There’s a sea-change out there,” says Reddy.

“No matter what aspect of law one is presented with and no matter what case a lawyer finds themselves preparing for, they need to prepare for it with a view to the fact that it belongs in a human rights context.”  

In England and other jurisdictions, the figure of the campaigning lawyer is both a romantic ideal and a political reality, as Gareth Peirce, Michael Mansfield and Imran Khan can attest. Many aspirant lawyers are fuelled by the mythology of Clarence Darrow or Atticus Finch, but the cold commercial reality is that such skill is not cultivated, and nor is it particularly welcomed in Scotland, a jurisdiction and culture where keeping your head down, saying nothing and avoiding challenge to our sacred institutions is the key to getting along, and free expression and professional individuality is very much frowned upon. As a result, Human Rights solicitors are a lonely and isolated bunch.

“There is something missing in Scottish public culture,” says O’Neill.

“There aren’t enough campaigning groups. We don’t have those independent campaigning voices like Liberty or Justice, and why not?  There should be something like that. The students were very enthusiastic, and there isn’t anything for all that enthusiasm and energy and campaigning spirit.  A number of solicitors said they were really interested in having a forum and a meeting place for like minded lawyers, raising awareness, although some said they couldn’t be associated with a campaigning group, which might go against the interests of some of their clients. So that was an immediate tension.”

Both O’Neill and Reddy are keen to clarify that their idea in establishing the Human Rights Group was not to advance an agenda or take up a campaigning baton. Rather, their hope is that the group will foment awareness and debate about Human Rights principles, and provide a bedrock of knowledge and encouragement, instead of activism.

“Is this a campaigning group, is it ‘Amnesty’ or just an information group?” O’Neill challenges.
“At the moment, it isn’t a campaigning group, but what I see it doing is laying a seedbed, raising awareness of public discourse so that it is informed, whether it be for or against human rights, so it is done from a position of each side knowing what they are talking about. 

“One of the things I am incredibly keen on is the cab rank rule. I, and any member of the bar, is able, willing and will act for any side of a case. You aren’t pigeonholed into only representing civil liberties cases and will never act for the police. Human Rights is a fact of life now. Government lawyers have to work knowing about them. Parliamentarians have to pass laws knowing about Human Rights. Potential claimants - whether the incredibly rich or the very poor - should know about Human Rights. We are all Human Rights lawyers, but being a Human Rights lawyer does not necessarily mean being a campaigner against the oppressions of the state.

“I don’t see myself as Michael Mansfield or Imran Khan or Gareth Peirce, who are all estimable and doing great things: I have an enthusiasm for better education. One of the things I am keen on is government lawyers also being involved in this. There is so much fragmentation in Scotland at the moment. Government lawyers don’t speak to lawyers who sue the government. Academics don’t talk to practitioners. Advocates don’t speak to solicitors and no one speaks to the Parliamentarians at all. And Glasgow and Edinburgh fight it out in Bathgate. We are looking to connect the threads, weave it together making that forum. From that things might develop. From that a new campaigning group might grow out of it.”

But then, Michael Mansfield wasn’t always Michael Mansfield. Once he was wee Mikey in the short trousers with a runny nose. Creation of a reputation is incremental. People become who they are over a number of years, and a reputation begins to form around a person because of the work they have done. Maybe Gareth, Michael and Imran only have their reputations because they are working in a legal system that provides the space for them to flourish, which is presently lacking in Scotland. As Rachael Gibson noticed, the commercial firms are beginning to pay attention too.

“There has been a remarkable involvement from large Edinburgh commercial firms. They can sniff something in the air. It is something they are going to have to know about and they are going to have to have some kind of expert on board,” says O’Neill.

“Firms across the board - not just campaigning sole practitioners - are onboard, as well as firms that can see a commercial opportunity.  Human Rights are universal, and it affects everybody. The impression people get is that it is for lawyers who deal with slopping claims or act for famous people against the paparazzi. I’m keen that Human rights aren’t seen as some kind of partisan fringe thing. The group is campaigning to raise awareness of a fact of life which is already there.”