WANTED: Lord (or Lady) President Would-Be...

Are you a legal enthusiast? Do you look fetching in horsehair knits? Can you carry off outmoded, stoat-edged outfits, with nary a squirm of self-consciousness? Then the Lord Presidency may be for you! In September, Lord Hamilton, appointed Lord President of the Court of Session and Lord Justice General in 2005, announced that he intends to retire in early June 2012.  Yesterday, the Scottish Government announced the process and the personnel who will select Hamilton's successor.  The office itself is an ancient one, originating in the early 16th Century. Time for a wee historical interlude, courtesy of erstwhile Lord President, Lord Hope of Craighead...

"Scots common law was developed in the institutions that the Kings adopted for the government of the realm, the Privy Council and Parliament. Parliament had acquired a role as a court as well as that of a legislature, although it did not sit very often. Its civil jurisdiction was as a court of review and of first instance. The Privy Council had been developed into a central court by the institution of “sessions” to hear causes and complaints, to the gradual relief of Parliament. The roll of civil causes in Parliament was reduced by increasing activity in a separate institution which became known as the Council and Session. During the reign of James IV it became the practice to appoint to the Council men who had been specially recruited to deal with judicial business. By the time of his death there was a core of eight ecclesiastics and nine learned laymen on the Council. They were known as the Lords of Session. The procedure of the Council was Romano-canonical, and the absence of an organised secular legal profession made Scots common law open to influence from Continental civil law in the form of the ius commune. Then in 1531 Pope Clement VII issued a bull narrating that James V intended to found a College of Justice in Scotland. He called on the bishops to contribute funds to its support. 

In 1532, the money having been forthcoming, effect was given to this initiative by the Parliament. It enacted a measure instituting a new supreme civil court, the Court of Session, over which the Lord Chancellor of Scotland was to preside if he was present, and on which Lords from the King’s Council were appointed to sit. In the ratifying Act of 1541 the College of Justice was described as having a President and fourteen ordinary Senators. This nomenclature survives to the present day. Judges of the Court of Session are still known as Senators of the College of Justice, and the Head of the Court is known as the Lord President. The Judges, including the Lord President, are still referred to collectively as the Lords of Council and Session. It is for this reason that they assume the judicial title of Lord, or Lady, on their appointment to the Court of Session bench." ~ Lord Hope's King James Lecture.

So what can candidates expect? During Hamilton's tenure, the office has evolved substantially. One of the the SNP minority government's earlier pieces of legislation, the Judiciary and Courts (Scotland) Act of 2008, remodelled the Scottish judiciary along partly English-inspired lines.  In its Policy Memorandum, the Scottish Government argued...

"The office of Lord President is of ancient origin, dating from the institution of the College of Justice in 1532. The role of the office is largely undefined in statute. While the status of the Lord President as Scotland’s pre-eminent judge is universally respected by the judiciary and by the legal profession, both at home and abroad, the office differs from the comparable office (often known as “Chief Justice”) in other jurisdictions in that it does not have responsibility for all the courts, and indeed all branches of the judiciary, within Scotland. "

As a consequence, in addition to presiding over the Courts of Session and Justiciary, the Lord President is now head of the whole body of judges in the realm, responsible for making and maintaining arrangements for securing the efficient disposal of business in the Scottish courts, representing the views of the Scottish judiciary, making and maintaining appropriate arrangements for the welfare, training and guidance of judicial office holders.  For these labours, the President receives an annual salary of some £214,165.

So who will it be? Not being embedded in the Scottish legal world, or privy to its gossip, I have no juicy insights to share. A few general points can be made, however, based on information in the public domain. Being stern adherents to the principle nemo iudex in sua causa, by sitting on the appointment panel, we can exclude Lady Dorrian's and Lord Hardie's candidacies for the Presidency. Similarly, Lord Reed may also be discounted, lately having been appointed a Justice of the UK Supreme Court.  Excluding these judges, the pool of potentially eligible Senators decreases to thirty in number. Might the appointment panel look elsewhere? Certainly, there are precedents. Take Lord Hope, for example, who was appointed as judge and Lord President of the Court in 1989, direct from the Bar. Tragically, however, I don't meet the minimum qualifications myself, so I shan't be donning my own burgundy mackintosh and deliberative peruke any time soon.

There has never been a Lady President of the Court of Session. What are the chances of a female appointment this time around? Statistically slender. While theoretically, a large number of candidates satisfy the minimum qualifications, given recent practice, we might expect the Lord or Lady President to be selected from within the current membership of the Court of Session. Of the thirty-four senators of the College of Justice, only five are women: Ladies Paton, Dorrian, Smith, Clark and Stacey. That's only 14.7% of Scotland's senior bench. Of Scotland's six sheriffdoms, Mhairi Stephen of the Lothian and Borders is the sole (but not the first) female Sheriff Principal, appointed in May 2011.  

More generally, of the 142 permanent sheriffs presiding over courts across the country, only thirty are women  - just 21% of Scotland's shrieval bench. And if we look at senior practitioners in the Faculty of Advocates who might be eligible for the job? The gross gender imbalance prevails. Of the 116 currently practising advocates who have "taken silk" as QCs, just 21 are women, or 18% of Scottish senior counsel.  Nor, at the younger end of the profession, do we see consistently greater gender balance. Of the twelve fresh-faced advocates called to the Bar in 2011, three are women. Of the ten in 2010, four.  At this stately pace, Scotland seems likely to retain only Lords President and an overwhelmingly male bench of Lords of Council and Session for a great many years to come yet.

Macrocosm & microcosm...

Duncan's horses ate each other. In Julius Caesar's Rome, Casca  met a lion and heard tell of a "hundred ghastly women" who, giddied with fear, swore they had spotted "men all in fire walk up and down the streets".  Above the marketplace, sat a noisesome bird from out the night, unblinking even in the unfamiliar noontide sunlight. In Shakespeare's depiction of ages of prophecy and portent, the earth itself takes an interest in the death of kings and men of state, marking their melancholy fate through manifestations of disordered nature. In our own unprophetic age, save for a few of the pious, few spot macrocosmic expressions of microcosmic tumult and change. We are alone, with our thoughts, amid dumb and uninterested existence, without divine messengers or signs. Even so, shorn of preternatural interventions, life's connections are endlessly fascinating. Think of the vast webwork of possibilities daily seized and not-seized, opportunities opened and closed in succession, life's countless unintended and unanticipated consequences, mounting and gathering and leaning on one another. We often like to make confident predictions about the results a certain course of conduct will generate, but obviously and unavoidably neglect other, almost boundless, potentialities made possible by the act and deed. Just as Shakespeare gives the world a voice, so too in our own smaller places, the wide world's deeds find reflection and set in motion strange earthly events, tragedies, accidents.

Yesterday, Pater Peat Worrier alerted me to this salutary case in point. On August 24th 2009, an incident occurred involving one William Preston of Hotel Ceilidh-Donia and a 25-year old American tourist, Samuel Hogue, who was staying at the establishment. The pair seem to have been having a chat in a friendly way in the Hotel bar late that evening, I dare say over a dram or two too many. Their talk turned to current affairs, which at that time was dominated by coverage of the release of Abdelbaset Al Megrahi, MacAskill's decision being announced  just a few days before on the 20th of August 2009. This seems to have been a point of significant disagreement between Hogue and Preston. Quoth the Scotsman's coverage, demure starring of sweary words replaced:

Mr Hogue said al-Megrahi should never have been released but Mr Preston said he spoke of an incident where an American warship had shot down an Iranian passenger jet and that nothing happened to the captain. The hotelier said Mr Hogue had then inferred the Scots were "yellow bellied bastards" He said he told Mr Hogue: "No more fucking drink for you. Give me your fucking glass."

Here matters seem to have got confused. Glass flew. Injuries were sustained on both sides. Mr Hogue alleged that Mr Preston had deliberately clattered him over the head with the object. Preston denied this, claiming an accidental collision between his glass and Hogue's. The assault charge was tried over three days in Edinburgh's Sheriff Court. After deliberating, on Wednesday the jury found Mr Preston not guilty of  assault. However, the Hotelier did plead guilty to a subsequent breach of the peace in Edinburgh's Royal Infirmary, after the incident. The Sheriff, Mhairi Stephen, told Preston: 

"The jury acquits you of the serious charge of assault but the evidence supports your guilty plea to the charge of breach of the peace which is a serious charge given the nature of your disorderly conduct. The elephant in the corner is not Mr al-Megrahi but alcohol as is so often in these courts."

Well, only up to a point, My Lady. While being liquored-up undoubtedly played a powerful part in the events described, don't let's overlook the strange and interesting way our lives become impregnated with the affairs of the world, people and places beyond our ken in space and time flood into our lives, and carry us on their eddies and currents.