30 January 2011

Tales from Middlesex Guildhall...

An Englishman, an Irishman, a Scotsman and a woman were called to the Bar...

That, more or less, is that starting point of BBC 4's documentary, The Highest Court in the Land: Justice Makers, available on the iPlayer until the 7th of February. The piece is structured around interviews with, domestic footage following and court shorts showing  four Justices of the United Kingdom Supreme Court at work. It's certainly worth seeing.

England is represented by the jovial Lord Phillips of Worth Matravers, President of the Court, and one discovers, not a man to shirk a challenge as he bravely dons a lyrca bodystocking to play the commuting cyclist across London. We learn that the former Lord Chief Justice of Northern Ireland, Lord Kerr, is a generous domestic house-fellow, his wife enjoying a nice boiled egg with marmite toast and tea of a weekend. Baroness Hale is the only woman sitting on the Court, while Scotland is seen in the slight, rather dowdy and bespectacled person of Lord Hope of Craighead, once Lord President and Lord Justice-General of the Court of Session and High Court of Justiciary, now Vice-President of the UK Supreme Court and patron of Sainsbury's supermarket. Between domestic revels, the documentary asks the Justices about the tensions they experience between law and justice, their ideas about the virtues of a judicial temperament, the spectre of divided appellate adjudications and the Court's deliberations on the legal chimeras of the Terrorism Acts. 

For myself, I can see why the gap between an actor's own values and those they impose in contested legal situations is of interest. However, my sense is that this documentary's focus obscures rather than illuminates the issues at stake by posing the question without clarifying another, earlier one - what is the law? Many folk entertain a sort of Weberian impression that law is merely the operation of rule-based formal rationality. At the level of Supreme Court adjudication, this is exceedingly unlikely to be the case. We should notice, therefore, that when we hear a justice refer to applying the law, he or she is not likely to be referring to the simple mental process some of us might be imagining, of applying a settled rule to a circumscribed collection of facts. As I always say to my anthropologist and sociologist friends with just enough crude Marxism to make them wildly suspicious of authoritative, "symbolically violent" institutions staffed by stuffy, white, male middle-class Westerners - their impatient critique too often misses the more (I'd suggest) anthropologically interesting fact. These folk, who can patiently assess the curious world-views entertained by different people across the world, rarely recognise that lawyers are deeply, deeply strange people with ideological commitments which the average person cannot but find rather bizarre, even implausible.  Certainly, there are doubtless a good many more lawyers of the whatever-you-say-sir stripe, who solve problems for their corporate masters. That said, I'd argue that law's ideological strain finds particularly intense expression in these adjudicative situations. 

Lord Phillips talks exceedingly interestingly (but also rather obscurely, which is the point) about "reaching the right result", and of the dissenting judge in the minority who "sees clearly" while the majority on the panel were benighted. This transcendental legal metaphor was put even more starkly when he describes sitting down to start writing judgments, uncertain of his view. He talks about it as if there was an occult inner logic concealed in the authorities, which is at first only passingly glimpsed and gradually unfolds in the conscious  judicial mind. Like finding some invisible hand on his, directing his judicial prose, by its mysterious operation, an unforeseen legal solution presents itself. I was struck by how conspicuously this echoes the familiar novelist's saw, that they don't know where their narrative is headed, but simply follow the course suggested by their characters.  To the cynically impatient amongst us, this can sound like inveterate mystification. However, I'd suggest we have no particular reason to disbelieve them and I dare say it gives an accurate subjective impression of the process.

I have also previously analysed the new court as something of a "Unionist project", in the sense that the foundation of a new, high appellate Court was seized upon as an opportunity to emphasise a British Unionist semiotics, whatever the institution's actual powers and jurisdiction: 

What interested me in particular, however, is how the architectural and legislative shifts which moved the Law Lords off their red benches and into designated judicial space has accumulated a Unionist semiotics which are strongly political. Glance at the symbol of the Court, left. English rose, Welsh leek, Scots thistle and Northern Irish flax all mingle at the roots, creating a complete circle. About this verdant knot, omega circumscribes, apparently referencing the Supreme Court’s finality. Designed by Yvonne Holton, Herald Painter at the Court of Lord Lyon in Scotland, I think it’s a handsome enough symbol. In context, it is, however, also a highly political account of the new judicial body – the institution of the Supreme Court being re-imagined through a symbolically unionist lens. Unlike the old House of Lords, this imagery explicitly ties Northern Ireland, Scotland and Wales in.

The BBC 4 documentary performs a similar trick, although watching it, it was interesting that you would really struggle to learn from it that the United Kingdom is highly legally pluralistic.  While the camera shot north to Lord Hope's neo-Classical mansion house, this afforded an opportunity for some striking visuals of prominent Edinburgh landmarks, rather than a chance to emphasise the complex jurisdictions which  might culminate in the final review of the Supreme Court. In point of fact, as many of you will know, there is no appeal from the High Court of Justiciary on Scottish criminal matters, except insofar as they touch on Convention and Devolution issues. However, as we saw in the Cadder v. H.M. Advocate judgement, the Supreme Court can play an important role in the adjudication of fundamental rights and the legal constraints of Scotland's devolution settlement.

I'm not particularly interested in the soor ploom poor neglected Scotia point. It just strikes me as curious and significant that the documentary would demonstrate so little interest in or consciousness of  the historical and existing different traditions in this Union. While I accept there is a case to be made for the idea of the Union, it is striking how rarely one hears this compelling articulated, never mind argued for or defended. This documentary makes no effort at all, save through its selection of interviewees, to explore the significance of this question. It is hardly particularly Unionistic to talk about the law of the land, even before devolution added further institutional means by which the United Kingdom's jurisdictions can come, still further, to differ. At another point in the documentary, Lord Phillips explicitly situates the Court in terms of the parliament over the road which makes the laws. Certainly Westminster does so, and vitally important decisions and statutes are enacted there. However, at the level of imagination, that the Supreme Court  and United Kingdom legal systems were presented in this way by the BBC is surely not insignificant or simply incidental.


  1. The Advocate General has been consulting on "devolution issues" and how they get to the UK Supreme Court (though the direct link to the consultation has now disappeared, probably because it frightened the Unionist horses). He commissioned an "Expert Group" to report on the same subject. The "Expert Group" are all Scots, and how is this for abject grovelling: "In our opinion, the jurisdiction of the Supreme Court should be maintained both for reasons of constitutional propriety and, more importantly, to ensure that fundamental rights enshrined in international obligations are secured in a consistent manner for all those who claim their protection in the United Kingdom. The same is true of the obligations that arise (or may arise in the future) under EU law." We don't need the BBC: we always have the Union Jocks. A glance at some of the consultation responses is fairly depressing as well. I was quite surprised, however, to be cheered up by the robust one from the Sheriffs' Association, and also by the fact the AG's own response goes a bit further in protecting the devolution government than his pet cowran tim'rous beasties do.

  2. Interesting stuff, Am Firinn.

    I wasn't aware that the infamous Baron of Tankerness was writing a shadow report to fend off some of Neil Walker's arguments.

    Do you have a link to the material, at all?

  3. Sorry for the delay, LPW - the exigencies of making a living. The material is at http://www.oag.gov.uk/oag/102.62.html and does have a link to the initial consultation if you scroll down far enough. I'm not sure if it is any kind of riposte to Walker: you will note the bold Kenny at least refers to Walker, but without saying whether he approves of it or not. Presumably not...

  4. Thanks for the link, Am Firinn. I really can't be be doing with these neat, elite, depoliticisation strategies, of which the Calman Commission is the crowning recent example. This sounds a familiar echo.