23 July 2011

Leveson LJ's "objective appearance of impartiality"...

Remember Robbie the Pict's crusade against the Speculative Society? In 1998, Robbie was convicted in Dingwall Sheriff Court for non-payment of the £5.70 toll on the Skye road bridge, now suspended. The Pict subsequently petitioned the nobile officium - the equitable jurisdiction of the High Court to afford extraordinary remedies - and in the third of his preliminary objections to the constitution of the court in his second petition, he complained that Lord Osborne was a member of the Speculative Society of Edinburgh, and as such, should not be permitted to sit in judgment in his case. As Lord Justice Clerk Gill narrated in 2003...

"The Speculative Society, according to the petitioner, is a closed debating society that has been described in its own literature as a secret sodality and a brotherhood bound by intangible ties of shared loyalty and common tradition. According to the petitioner, each member of the Society has a personal four-digit number and signs a members' roll. The secrecy of the members was, he submitted, similar to that of freemasons. For a better understanding of the matter, the petitioner invited us to read the History of the Speculative Society (1968), to which Lord Osborne contributed a chapter. The petitioner further submitted that in a series of judgments relating to the Skye Bridge tolls, 12 out of 14 involved the participation of judges who are members of the Speculative Society. He said that there was widespread public disquiet about the influence of the Speculative Society amongst the judiciary. He referred to recent media comments on the subject. He submitted that in this case, as in numerous previous cases, there was an appearance of bias, actual or potential."

Gill was, quite rightly, concerned with "the objective appearance of impartiality", reconvening a differently constituted bench of the High Court to decide the issue, none of whom were members of the Society.  The Pict's line of argument made a significant press splash at the time, reinforcing representations of the Scots legal Establishment as a suspect and reactionary class, dominated by the tedious and the affected. I've treated this topic in greater length in Scotland's coelocanth, the legal establishment.  Other details about the Speculative Society contributed to the effect. Their reported archaisms, disdaining to avail themselves of electricity in their rooms in Old College; their exclusion of women; the prospect of interminable marble-mouthed speeches, each dreary drollery prompting port-soaked guffaws and claret cackles from the assembled jurisprudes. At the time, the Scottish Legal Action Group acidly observed:

"... the Speculative Society meetings are, in the main, reactionary gatherings of over-privileged, idiot, boy students who enjoy pompous role playing. In this guise it is no more a threat to democracy and justice than other self-indulgent antics found among a minority of yahoo students at many universities."

That said, the published list of members admitted to the Society between 1947 - 2002 includes a great many high profile names in the legal world, past and present, including the current Lord President, Arthur Hamilton. Past members of the Society include Sir Walter Scott and Robert Louis Stevenson.  Safe to say, you won't find my name on there, but while I was at Edinburgh University, I was approached about the society, but declined to take any interest. I'm given to understand that the Speculators continue to hold their meetings under the nose of the majority of Edinburgh's law students - who are now overwhelmingly women. I suspect most students would be surprised to discover that such a body still congregates and attracts a congregation in contemporary Scotland.  In his disposal of Robbie the Pict's application, Lord Gill afforded this insight into how the Society selects its creatures, based on an affidavit from one of the Society's office bearers:

"The society is a society for young men. According to the affidavit, the Society can have no more than 30 ordinary members at any time. Membership is gained by invitation and is subject to voting by secret ballot. The rules provide for a procedure of black-balling. When a member joins, he joins as an ordinary member for a period of three years. There is nothing in the rules to prohibit female membership, but there are no female members and there have never been any."

In the final analysis, Robbie the Pict was to be disappointed, but the gently wry quality of Lord Gill's judgment is pleasing for those, like me, who find the reported mores of the Society immediately distasteful, particularly its exclusion of women, its sticky homosociability, the stuffy, clubby selectivity. Gill held...

"On the information before us, we conclude that the Society is never secret nor sinister and that it simply makes its own refined contribution to the public stock of harmless pleasure. It appears to be careful in its choice of members, but many societies are. Those elected are no doubt happy to be members. Others will be happy not to be. Live and let live is a useful principle in such matters."

This issue of judges maintaining an objective appearance of impartiality was summoned back to mind this morning by disclosures about Cameron's appointee to lead the public inquiry into phone hacking. Further to an article in the Telegraph, which reports that Lord Justice Leveson has attended parties at the house of Rupert Murdoch's son in law, fellow Scot and English lawyer Charon QC writes that...

"In the present climate – I am surprised that the Prime Minister, aware of the minor connection between Lord Justice Leveson and the Murdochs as reported in The Telegraph – thought it fitting that Leveson LJ should head the inquiry.  I am sure that Leveson LJ would be impartial.  He is highly regarded.  But on this very complex and emotive issue of #Hackgate – it is surprising (a) that this story was not announced at the time Leveson LJ was appointed and, frankly, (b) that Leveson LJ was appointed, and (c) accepted the appointment."

I agree. Without impugning the integrity of Leveson in any way, it is bizarre that David Cameron didn't pause and seek out some other judge, any other qualified judge, without a scintilla of contact with the extended Murdoch clan and their dubious hospitality. Early on in the developing scandal, Simon Hughes appeared on Newsnight, arguing that the selection of the judge to conduct any independent investigation would need to be very sensitive, ensuring that any judge selected didn't paddle in the same social pool as those they are investigating. Hughes particularly mentioned senior police officers and masonic lodges - but we needn't stretch our imaginations too far to imagine other sites in which senior judges, based in London, might find themselves fraternising with prominent figures from the press and the police. 

Like Robbie the Pict's case, the issue is one of the objective appearance of impartiality, which is clearly potentially compromised when the judge moves in the social milieu as the journalists, executives and officers they are examining. On twitter and in a comment after an article by David Allen Green at the beginning of July, I asked - why not appoint a Scottish judge to lead the inquiry? This wasn't intended as rank Scots legal nationalism, nor as a slight to the many upright Daniels on the English Bench who could do the inquiry justice - but specifically to address the point raised by Hughes. The physical and social distance between Edinburgh and London, I suggested, would rapidly foreclose any fears about the inquiring judge's social connections and knowledge of those being investigated. Senators of the College of Justice do not, in general, swim in London's social pond. Also, a certain douce, precise Scots air might have been just what an inflammatory inquiry into such seedy activities needs. Given today's disclosures about Leveson's wee drinkie with the Freuds, and assuming the details ennumerated by the Telegraph are accurate, this is precisely the sort of compromising connection which Simon Hughes was so concerned about. Much more baffling is cloth-eared Cameron's decision to appoint Leveson, in full knowledge of his links and drinks. Charon QC argues that Leveson should recuse himself.  Perhaps it is time to "activate" - Lord Justice Clerk Gill?


  1. I shall certainly try to insert the phrase "sticky homosociability"
    into conversation the next time I'm in the pub...

  2. I'm shocked Conan. You mean it isn't already a phrase in daily use, down your way?

  3. It would have been good to get a judge from outside England/Wales. However, would the Scottish Exec ever ask an English Judge to conduct an inquiry in Scotland? Somehow, I think the answer is an unequivocal NO.

  4. obiterj,

    A fair point, in many ways. I imagine they'd look to a Scottish judge, if such an inquiry was to take place. I'd add this caveat, however. Within the present constitutional structures, it is difficult to imagine any subject which the Scottish Government would seek to inquire about, that wasn't substantially concerned with devolved matters.

    The same is categorically not true about Leveson's inquiry, extending as it does across the UK, and as Cameron confirmed, includes Scotland (though I'd be most surprised if we came out of it as a subject of particular interest). For that reason, I'd argue that the situation of HM Government in London and Alex Salmond's Scottish Ministers are not exactly parallel, and that Cameron could have comfortably appointed a Senator of the College of Justice. The inquiry is, after all, a Unionistic affair!

  5. In my humble opinion, whichever judge is chosen to head this inquiry, the effect will be similar to the plea of an Timorian human rights lawyer in a Indonesian court.

  6. With age, they say, cometh wisdom - roll on age.

  7. Whilst I see your point, I cannot actually think of any issue whatsoever on which the Scottish Executive - as presently constituted - would allow any English judge to take an inquiry in Scotland.

  8. Aye. Probably true, ObiterJ.

    Oh, and with the passage of the new Scotland Bill, they'll officially, legally be transformed into the Scottish Government. I dare say the Telegraph's Alan Cochrane will be serious disappointed!