20 June 2011

Scotland's coelacanth: the legal establishment...

Instinctively, I can understand the irritation which a character like Lord Hope of Craighead can provoke.  Those who watched the BBC's documentary following four of the Justices of the UK Supreme Court (of which, a brief clip here), may recognise what I called Hope's "slight, rather dowdy and bespectacled person". As he shuffles around a supermarket, or scurries through the London underground, only the most obsessive judge-spotter would be able to identify this quiet man under his outsize hat. Unlike their American counterparts, no Supreme Court justice in the UK is a household name, despite Alex Salmond's best efforts in recent weeks to single out Lord Hope for special recognition. Day to day, despite the national compass of his judgments, and the millions of people theoretically subject to them, most would struggle to distinguish Lord Hope of Craighead from Adam. That the same is true of the average Holyrood or Westminster backbencher, whatever their allegiances, can never rankle in quite the same way.  For those with impatient political urges, there is something about the stiff self-confidence of the judicial character, the tendency to experience and talk about the qualities of their own judgement in unsatisfactory opaque terms, which all too easily nettles. Paradoxically, the sting can be even more pronounced, when it is delivered with the mildness of the Scots Deputy President of the UK Supreme Court. Modesty of manner only aggravates the offence.

For those with a more encompassing idea of the political, who consciously or unconsciously accept critical theories of law, the constitutionally and often politically-laden deliberations of a judge at the highest level, for all of the accompanying shuffling of texts, gathering of submissions and reference to existing case law - can easily look like so much moonshine. Where judges insist their deliberations unerringly entail the conclusions they reach - critical folk, peering in, can readily come to suspect that the desired conclusion is identified first and only then is legal reasoning generated with an eye to its justification. Judges and lawyers also have a tendency to use terms like "objectivity" without any apparent sense of embarrassment, as if they were just old-fashioned grocers, just slapping a case on their scales - and reading off the accurate result in trusty bronze weights. Add to this some of the other legal consciousness narratives of our time - the idea of law as a book of more or less determinate rules, immoveable and independent; the idea that law is there to be tactically manipulated to particular ends; the idea that law is capricious, an expression of more or less arbitrary power - and you have a recipe for a profoundly difficult conversation. Do you believe in the rule of law? What does this rule of law look like, when your laws aren't framed as rules? How seriously should we take judicial disavowals of the political character of their decisions anyway? What then is the legitimate compass for "political" figures to criticise judicial findings?

A few weeks ago, I argued that defending the distinctiveness of Scots Law has its political curiosities, not least in that a very small segment of the Scottish population have any substantial ideas about what distinguishes Scots legal traditions from the English. This flight from detail was confirmed last week in the highest quarters of government. After all of its bilious indicting of Lord Hope for leading English Justices of the UK Supreme Court in obliterating Scottish legal distinctiveness, Scottish Ministers have justified the provisions of their rushed  anti-sectarianism Bill by claiming, without any irony, Scotland should be "brought into line with England".  The mind boggles. Actually, it occurs to me that we might go still further.  If few are likely to rush to the political barricades to defend Scotland's Roman distinctiveness, imagine the tiny band who would form up to defend the "Scottish legal establishment", as it is often styled.

Ideas about this establishment are manifold, some rooted in experience, others fantasies.  Yet it is fair to say that the social life and characters associated with Scots law are conceived in profoundly ambivalent ways in our public discourses. In the semiotic sphere, solicitors tend to be overlooked.  It is familiar to conceive of the Scottish judiciary and the Faculty of Advocates as a rather queer legal aristocracy, their emblematic musty wigs and gowns and plummy voices picked up in Edinburgh public schools - hilariously incompatible with popular perceptions of the ruling character of Scottish life. Whatever the reality about the social origins, privilege and gender profile of the membership of the Court of Session and Scottish Bar, these organisations are primarily envisaged as defining castes of Edinburgh, and like the city in which they are based, easily conceived as Anglicised (and by consequence, de-nationalised in Scottish terms), haughty, haute-bourgeois, tedious, prosperous - and probably Tory. There is prowess too - the advocate is generally presented as an impressive and prestigious figure. New Club memberships, New Town addresses, participation in selective golf-clubs - for many Scots, this whole cast of contemporary legal characters could be comfortably stuffed and mounted in the National Museum of Scotland on Chambers Street, as exhibitions of reactionary and outmoded manners - stuffy monuments to legal Edinburgh's cockroach capacity to resist time, wind, rain and flood - preserving its ancient privileges and old pomposities.  When a legal scandal blows up, it comes as a surprise when this fossil swims up quite alive and quite confident, not seeming to recognise how fustian and out of place in contemporary Scotland it appears. Marble-mouthed characters like Richard Keen QC, Dean of Faculty of Advocates, seen last week in the UK Supreme Court with wig and spectacles perched at rakish and condescending angles respectively, are all too easily pressed into the service of this representation of Scotland's legal world.

As Kenneth Roy noted in a recent edition of the Scottish Review, it is precisely the idea that the conceited-seeming and over-entitled expectations of this Scottish legal establishment were being denied which lent the former Lord Advocate Elish Angiolini her profound symbolic power and charm. There is plenty of malicious glee to be had, imagining setting a Govan coalmerchant's daughter and solicitor over the heads of would-be grandees of the Faculty, who were reduced to gawks and the frustrated puffing of foiled ambition.  And imagining is the crucial point in all of this.  By no means would I accept this representation of the Scottish legal world unqualified. Indeed some of it is simply false. Yet some approximation of these ideas and images of the legal establishment enjoy extensive purchase in the Scottish public consciousness and public commentary. Despite greater diversity in the professions, despite a large and growing cohort of women, despite the large number of advocates who practice outside Edinburgh, gendered and social assumptions persist unreformed. That such ideas can so easily be summoned to mind are the vital background to the recent UK Supreme Court ballyhoo. As other bloggers have modestly noted, the detailed disagreements about the extent of the UK Court's jurisdiction, the nature of the rights afforded by the European Convention, of the devolution Act and of Scottish legal history, even the justices or injustices of the Cadder or Fraser judgments - are unlikely to mean much to or move most folk, politically speaking.  Salmond's rhetoric is much more likely to be understood in terms of more straightforward images and impressions - and the proxy pleasures of telling the arrogant old crows of the Scots judiciary to go and stuff it.  The real paradox of Salmond's position is that he is effectively mobilising such critical notions of the establishment against Lord Hope while simultaneously attempting to perpetuate the autonomy of that selfsame legal establishment - and even aggrandise their jurisdiction.

On the other side of things, I do wonder about the strategic implications of the First Minister's roistering.  The election is won, but the independence referendum is yet to win.  As recent polling on Scottish independence has indicated, Scottish AB voters - the upper and middle classes - present a particular challenge from the N(/n)ationalist perspective. According to TNS-BRMB, Scots bourgeois respondents were the most inveterately opposed to independence, of all Scottish social grades, recording the following response:

AB ...
  • Agree ~ 29%
  • Disagree ~ 58%
  • Don't know ~ 13%

While much of the public may be unmoved by - or even vaguely favour - the tenor of the First Minister's argument with the jurisdiction of the UK Supreme Court, the same is, I fancy, unlikely to be true for these already disaffected AB voters.


  1. The point you are skirting, avoiding, nay ducking,is the positioning of the UKSC as not only a superior court to the High Court, but also the Scottish Parliament.

    Ministers of the Crown are invoking it as an agent to counter silly Scots notions of referendums (a) and it seems corporations look to it to overturn Acts of the Scottish Parliament

    Leap as you do to the defence of Lord Hope, you do not seem to light on this issue.

  2. Let's look at this politically.

    It is now fairly well established that Alex Salmomd and the SNP are unhappy with the powers and some of the decisions takem by the Supreme Court. People may not know the detail of it but they know that much.

    They also know that the other parties think Alex Salmond has gone mad, should be ashamed of himself and ought to apologise for beimg so cheeky. And on the basis of that most of them will believe that the other parties are FOR what the SNP is AGAINST.

    So this is where we are. And what is coming up over the next few months? A decision on whether to overturn the Damages (Asbestos-related Conditions) (Scotland) Act 2009 on the grounds that it breaches the human rights of the insurance companies.

    And, according to the press, the possibility - indeed likelihood - of Luke Mitchell having his conviction overturned. Perhaps it would be possible to retry him but even so, we can all imagine how the Supreme Court finding in his favour would go down in the court of public opinion. And how many more like him might there be? That is what people would be asking themselves.

    If these things come to pass you are going to see the public mood shift dramatically against the Supreme Court and all it stands for. And that will happen in the context of Alex Salmond and the SNP already being identified as opposing the Supreme Court's powers while the other parties are identified (rightly or wrongly) as supporting it - and being very angry with Alex Salmond for being nasty about the lawyers and judges associated with it.

    Now I don't suggest that all of this is stage-managed to achieve a political advantage, Far from it. I think Alex Salmond has overstepped the mark in a number of ways (and has done so because he is genuinely angry not as a calculated move).

    But I also think that the other parties - and indeed the legal establishment - may come to regret defending the Supreme Court's powers in Scotland quite so vehemently if the decisions it takes come to be regarded as outrageous.

  3. Anon 15:59

    Sorry to piss on your chips but Acts of the Westminster Parliament have to comply with EU law and the ECHR. If a provision is incompatable with EU law then the English courts can disapply it and apply the relevant EU provision. If a provision is incompatable with ECHR then the English courts can issue a declaration of incompatibility.

    So we're not so very different to the English after all.

  4. The English Courts can overturn the Acts, but UKSC cannot overturn Acts of Westminster, that is the point

  5. Anonymous above seems to not know that the Scottish courts can also overturn ASPs. And the reasons for the inviolability of Westminster acts is for the same reason that Westminster can overturn ASPs - it is the sovereign body, and Holyrood is its creature. None of this comes as a surprise to anyone with any knowledge of the British constitution.

    On another tack, I don't think I'd be happy if the Justices of the UKSC were as well known as those of the SCUSA. (whim, I'm sure don't travel by Washington's fine underground system.)

  6. LW

    Is that inviolable in the sense that any provision which is not comapatible with EU law can in effect be rewritten by the courts?

    Because if that's the sense in which you mean it then you are correct.

  7. Anonymous @15.59

    You appear to be unfamiliar with the case of Smith v Scott, in which a bench comprising three Scottish judges made a formal declaration that Section 3 (1) of the Representation of the People Act 1983 was incompatible with the Convention.

    The right to declare a statute incompatible with ECHR is not therefore uniquely granted to the Supreme Court, and applying only to Acts of the Scottish Parliament.

  8. Ah, lovely to see Braxfield, one of the 'folks of the old leaven'.

  9. No, anonymous, they do not rewrite the law. They may declare it incompatible. As they are charged to by Parliamentary statute. And it is for Parliament, alone, to rewrite the law. Or not. As they choose.

  10. I do not seem to have made my point well. As I understand it, and am prepared to be corrected f wrong

    1) The Scots Courts can counter a Holyrood Act

    2) The English Courts can counter an Westminster Act

    3) However, the UKSC can counter a Holyrood Act, but not a Westminster one

    It is at number 3) that the problem lies,

    Berating me for not understanding point 1) is silly as I never said that Scots courts could not

    Anon of 15:59

  11. LW

    A declaration of incompatibility refers to the ECHR, not EU law.

    Where a UK statute is incompatible with EU law courts apply EU law, not the UK statute.

    Factortame and all that.

  12. The "Supreme" court. Some heavenly body to whom mere mortals doff cap and seek approval for how we run our affairs?
    That irks and riles.
    Decisions on terms of reference set by them and to be accepted by us not learned enough to disagree.
    They are employees - public servants.
    When the electorate is given the opportunity to vote on this, it will be "yea" or "nay".

    Will the upcoming decisons of the Greek parliament be subject to the same scrutiny?

  13. The question is - is the species under threat due to EU regulations; or merely its own blind belief in its provenance?

  14. Apologies all, a long response to each of you was consumed in the ether, as sometimes happens. On the legal issue, I refer to the comments of my learned friends. Otherwise, just a compressed re-articulation or two...

    Anonymous, Indy,

    Blogging, there is always going to be some angle on a story you neglect- or which you keep mum about. My witterings are generally long in any case - I try to avoid making them endless. That I don't touch on a particular issue shouldn't be taken to imply that I don't think it matters. Indy's political assessment is very much a case in point. That I don't write about that angle isn't to claim that the law does or ought to trump political analysis. This selection is primarily governed by a desire contribute something otherwise absent or overlooked from the public debate.


    Always a pleasure to pop the old villain's phizog on the blog, grogblossom and all!

    terrence, I refer you to my response to Crinkly on that basic issue of judges and law in a democracy.