6 January 2012

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.


  1. Your time will come LPW. Fear not. :)

    It's quite amazing how Muir Russell circulates around the small arena of Scottish elites.

    Also it was interesting to note that the suggested appointee is not recommended to Her Majesty by the FM but the PM. A minor point but one that emphasises our judiciary is not fully under our control.

  2. Ha! I think not, Subrosa. I've no intention of turning advocate, professionally. I do not, I think, have the requisite qualities to prosper. As for Muir Russell, he certainly gets about - in this context, as chair of the Judicial Appointments Board for Scotland. A small puddle of folk.