28 July 2011

WANTED: One second-hand Justice...

... not too worn about the edges; with decent knowledge of law and a presentable appearance. Applicants who do not suit their perukes welcomed. Comprehensibility to those from the south of England essential. Admittedly, the UK Supreme Court hasn't quite couched its advertisement in these terms, but it has solicited applications for two judgeships in the Court. The first vacancy is immediate, caused by the untimely death of the former Lord President of the Court of Session, Lord Rodger. The second seat becomes available in April 2012, when Lord Brown - who missed his profession as a cantankerous Napoleonic-era admiral - retires.  As the Court's advertisement recognises...

By convention there have for some years always been two Scottish Law Lords; and subsequently Justices of the Supreme Court. Lord Hope is currently the only Justice from Scotland. In making its recommendations the selection commission will have regard to the requirement under section 27(8) of the [Constitutional Reform] Act [2005] to “ensure that between them the Judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom.”

While Lord McCluskey's Group are mooting whether it would be valuable for have a majority of Scots to sit on the UK Supreme Court bench when dealing with Scottish cases (which would, in most cases, call for three Scots to sit on the UK Court rather than the convention two referenced here), it seems profoundly unlikely this selection process will see two extra Scots added to the Court.  So who decides who gets appointed? The selection commission consists of the UK Court's President - Lord Phillips; his deputy, Lord Hope - and a man each from the judicial appointments boards of Norn Iron, England and Wales and Scotland.  The latter is represented by their chairman, Sir Muir Russell, classic Establishment bod and former Scottish Executive civil servant who rode the public sector carousel into the principalship of the University of Glasgow. This cosy band of jurisprudes will be seeking out souls that fit the following criteria:

Criteria for appointment
The cases dealt with by the Supreme Court include the most complex in the courts of the United Kingdom and demand the deepest level of judicial knowledge and understanding, combined with the highest intellectual capacity. Successful candidates will have to demonstrate independence of mind and integrity and that they meet the criteria listed below TO AN EXCEPTIONAL DEGREE.
  • Knowledge and experience of the law.
  • Intellectual ability and interest in the law, with a significant capacity for analysing and exploring legal problems creatively and flexibly.
  • Clarity of thought and expression, reflected particularly in written work.
  • An ability to work under pressure and to produce work with reasonable expedition.
The successful candidates will also need to demonstrate the following qualities:
  • Social awareness and understanding of the contemporary world.
  • An ability to work with colleagues, respecting their views, but also being able to challenge and debate in a constructive way.
  • A willingness to participate in the wider representational role of a Supreme Court Justice, for example, delivering lectures, participating in conferences, and talking to students and other groups.
  • Vision, coupled with an appreciation of the role of the Court in contributing to the development of the law.
In considering these qualities, the commission will have regard to the background and experience of the candidates.

So, no room for the gormless, the lazy, the cryptic, the shy or the visually impaired. Bitter recrimination in argument is out too, along with those who cherish their judicial ignorance of contemporary mores - "And what sort of music did you say these coleoptera produce, counsel?"  Curiously, like juvenile would-be sodgers, successful applicants may also have to submit to medical as well as professional examination to ensure they are fit for judicial duty.  So who will get the jobs? And specifically, which Scots lawyer will take up Rodger's death-deprived chair? In the Guardian yesterday, legal journo Joshua Rozenberg echoed my early prediction that Court of Session judge Lord Reed. Very unusually appointed to the Court of Session in his early forties, Reed has a doctorate from the University of Oxford, is now only 54 years of age and sat ad hoc on the UK Supreme Court in the as-yet undecided case of AXA General Insurers & Ors v. Lord Advocate. It remains to be seen whether the body of insurers will succeed in challenging the legislative competence of Holyrood's pleural plaques legislation. Writes Rozenberg...

"Reed is the firm favourite. Before his promotion to the appeal court, he was Scotland's senior commercial judge. As an advocate, he practised public law and European law. He look a DPhil at Balliol and was also called to the English bar. In 1999, Reed sat at the European Court of Human Rights as one of a panel that heard appeals by Robert Thompson and Jon Venables..."

In these hallowed digital pages, Lord Reed was noted for his mercy to the gun-possessing granny from Dundee, Gail Cochrane. Despite the dissent of Lord Marnoch, Reed released Cochrane from the utterly unnecessary, nimious five-year mandatory minimum sentence to which the Firearms Act 1968 would have consigned her.  Reed has also composed a tome, A Guide to Human Rights Law in Scotland. In an earlier post, I suggested that it would be a crashing shame if one of the few Scottish judges with a particular interest in human rights law should depart to London and spend much of his time hearing English appeals. I stand by that. Justiciary and the Session can ill-afford to lose folk like Lord Reed to southern climes. Although I'm sure he would serve gallantly on the UK bench and hand down judgments I might sympathise with in contentious Scots cases, I'm far from convinced that the overall effect of his elevation would be salutary for Scots jurisprudence. In point of fact, the successful candidate need not already be a judge. Earlier this year, Jonathan Sumption QC was elevated to the UK Supreme Court bench straight from the English Bar, although I believe he is still polishing off old cases, and has not yet assumed his judicial role. So, if there are any ambitious and qualified amongst you, not disqualified on grounds of ancientness, youth, folly or injustice - applications close at 5pm on Monday 19th of September...


  1. I wonder if Lady Smith will throw her hat into the ring? UKSC somewhat short on the distaff side.

  2. To put it mildly, Robert! I haven't followed the process of previous appointments, so am not absolutely clear on what elements of their deliberations, if any, the selection commissions makes public. Unfortunately, I expect discretion will mean that scuttlebutt will be our only guide to who save the appointee put themselves in contention.

  3. It's good you now provide URL's to words such as coleoptera.
    It means you'll be more easily read by us, the monodactyls.

  4. Monodactyls, terrence?

    Does that mean you represent the class of reader who maintains a single featherless reptile in your aviary? ;-)

  5. A Scottish lady QC could be parachuted there in the same way that Sumption was. That would kill the "Scottish" and the "diversity" birds with one stone!!

  6. A cunning wheeze ObiterJ, but with one wee snag. If the Scots Bar is small, then its cohort of senior women are tiny. Sumption was called in 1975 and became a QC in 1986. By contrast, Frances McMenamin is the earliest called woman still practising at the Scottish Bar, be call and silk 1985 and 1998 respectively. From the public roll of practising members, I reckon there is a total of 19 female QCs. Two of them took silk in 1998; 1 in 2000; 3 in 2002; 1 in 2003; 2 in 2005; and the remain 10 taking it between 2007 and 2010. On the Court of Session bench (now 34 strong), we have only five female judges: Ladies Paton, Clarke, Dorrian, Smith and Stacey. In brief, the Scots Bar does not excel in gender balance - and doesn't look likely to until the year 2100 at its present pace.

  7. That's right Crinkly - the whole post was a none-too-subtle attempt to solicit accounts of my jurisprudential virtue. Not being a professional lawyer, an advocate, or a judge, I suspect the Commission may regard my application exceedingly skeptically - but perhaps with a reference or too sufficiently warmly worded, I can join Lord Hope on the bench and await Kenny MacAskill assailing my knowledge of the animating and sustaining forces of Scotch jurisprudence. I might just avoid the Edinburgh Festival this year...

  8. Tsk,Tsk man - surely we'll no let such minute technicalities take the drama of chance out of life's great adventure.