6 April 2009

Ironies of Lord Hoffmann...

Per the Spectator, and in response (albeit briskly) to the fragrant Subrosa this section of Lord Hoffmann's lecture to the Judicial Studies Board is worth "throwing a kilt on". I might, if I can stir a bit from my lethargy later, reflect further on the points Lord Hoffman raises about the European Convention on Human Rights and the prevailing style of the European Court of Human Right's caselaw - but the gammy-eyed humour of the following passage is worth emphasising right away...
"It is therefore hardly surprising that to the people of the United Kingdom, this judicial body does not enjoy the constitutional legitimacy which the people of the United States accord to their Supreme Court. This is not an expression of populist Euroscepticism. Whatever one may say about the wisdom or even correctness of decisions of the Court of Justice in Luxembourg, no one can criticise their legitimacy in laying down uniform rules for the European Union in those areas which fall within the scope of the Treaty. But the Convention does not give the Strasbourg court equivalent legitimacy. As the case law shows, there is virtually no aspect of our legal system, from land law to social security to torts to consumer contracts, which is not arguably touched at some point by human rights. But we have not surrendered our sovereignty over all these matters. We remain an independent nation with its own legal system, evolved over centuries of constitutional struggle and pragmatic change. I do not suggest belief that the United Kingdom’s legal system is perfect but I do argue that detailed decisions about how it could be improved should be made in London, either by our democratic institutions or by judicial bodies which, like the Supreme Court of the United States, are integral with our own society and respected as such."

With our kailyard and robust Scottish sensibilities firmly in hand, what are we to make of this? Laws made in London? One nation? The United-Kingdom legal system? Tsk tsk, dear fellow. Consult your Act of Union. For those who are less familiar with the set-up visa vie Scottish appeals - you can worm your way down to London for civil matters, but not not criminal causes. This man has sat on Scottish appeals. As he would not doubt, tiresomely remind us, he lectures here from a position of some 'expertise'. Even his categories snatched from "our legal system" are resolutely, stoutly English - we Scots lawyerly type referring in general not to "land law" but the law of real property, while the Anglo-Norman insistence on "torts" are mellifluously latinised in Scottish cases, as "delicts" - from the Roman law category meaning, loosely, "wrongs".

Ask any Scots lawyer - and they will provide you with examples of "the Hoff" and his cronies cheerfully and blithely ignoring the Scottish "law of the land" in the House of Lords, imposing some imagined English alternative in Scotland- or brainlessly, as he has done, in this wee speech of his - override the significance of the point altogether by cheerfully failing to mention Scotland's distinctiveness and alterity. And don't lets get ourselves worked up about Londinium as the universal hump of legitimacy - that crumpet is far too tedious to bear buttering up further.

During none of this did old Hoffie seem to bat the slightest eyelid. Now he idiotically ignores the complexity of our internal domestic life while bemoaning just such a sticky turn in others.

This smells like special pleading to me - however sympathetic I might be to some of his reflections - a sort of internal squabble between elite priesthoods each totting about their relics claiming that they represent the true volksgeist of a people. I'm not terrifically attached to the magic spirit of Scots law - indeed in particular areas we could do with a bit of English contingency and open handedness. Yet these aren't just wee errors which a smudge and a splash of tipex might fix - they betoken an attitude which prevails in the House of Lords - which I find it a bit rich in the telling. Vintage House of Lords comment from Hoffmann here, complaining about the treatment meted out to his imaginary space, as he diddyishly is in the very process of doing towards others.

Hardly First Class analysis, is it?


  1. Excellent Lallands. My only problem with courts is are they ever just? Not that I've had much experience of them of course but it still seems, as it has done for many a year, to be one person's interpretation against another's. Yes I know I'm seriously lacking in knowledge on this subject but I have enjoyed reading your argument.

  2. I've posted an Update and linked to this. You appear to have excellent knowledge of Europe and its structure. Could you think about doing a post laying out the modern Europe and also giving your opinion on the Lisbon Treaty? That would be a treat for people like myself who become more confused each day.

  3. It's worrying that the House of Lords lacks knowledge of, never mind respect for, our legal system. Time that it didn't exist of course, (the Lors that is) and certainly time that it had nothing at all to do with Scotland. Interesting post. Thank you.