28 February 2013

Scotland's green salad justices & ancient juniors...

Few folk embark on a judicial career in this country out of a raving thirst for publicity, but this is just silly. This week, the UK Supreme Court has turned out its old guard, appointing three new Justices.  In America, the installation of a single judge is now invariably met with a press ruckus, pompous senators sounding off ad nauseum in televised hearings, while the nominee practices judicious evasion and studied non-answers to the politicians' usually none-too-forensic political cross-examination on the hot-button jurisprudential controversies of the day.  

On this side of the Atlantic, the idea of subjecting your Lord President Would-Bes, judges and Justices to such treatment hasn't gained much purchase. Everything is rather stuffier, enveloped in cosy, impenetrable officialdom. As a consequence, I'm sure a vanishingly small percentage of the UK population could distinguish any of the Justices from Adam (or in one instance, from Eve).

Adam Wagner styled the three appointments an "attack of the clones". All three new justices are men of a certain age. Baroness Hale remains the Court's first and only female justice to serve.  The story stirred barely a whisper in the Scottish press, despite the heightened visibility the Court has enjoyed in Scottish politics in the last year or two, adjudicating politically controversial constitutional cases. 

By convention, two seats on the Court are filled by Scots lawyers. Court of Session judge, Lord Hodge (above, right), will fill the seat vacated by Lord Hope, who has achieved sufficient antiquity that he's obliged to retire, aged 75.  All that despite, employment as a judge in this country's apex court seems an excellent way to preserve one's anonymity.

The gendered angle on the story was the subject of commentary elsewhere.  As I argued back in January of last year, of the Lord Presidency snaffled by Lord Gill, it's important to think about our overwhelmingly male-dominated higher courts with our historical periwigs on, and examine how this narrow pool of candidates came to be. 

To my eye, one of the most worrying features of contemporary recruitment to the Scottish bar, which seems likely to dominate high judicial offices in this country for the foreseeable future, is the continuing dominance of men among their intrants and devils. As I noted in the piece, of the 12 advocates called to the Bar in 2011, three were women. Of the 10 in 2010, only four. 

To bring it right up to date, of the 13 called in 2012, three are women. It is also worth emphasising, the age profile of the new-sprung advocate seems to have evolved since the 1970s and 80s. No longer the preserve of bright young men, (MA Oxon, LLB Edinburgh), a quick glance through the newer Faculty roll reveals many grizzled faces with at least a decade or more of work as a solicitor behind them.  You might find the odd cherubic phizog, but many of these juniors aren't so junior, and probably won't be in post long enough to make it to the Supreme Courts.

A comparison with the two Scots lawyers who'll now sit on the UK Supreme Court is an instructive one. On admission to the Faculty, the second Scottish judge on the Court, Lord Reed, was about 27 years old, Hodge was 30.  In judicial terms, both of the Scottish justices are now in the green salad days of their youth, Lord Reed 56, and Hodge 59 years of age.  That's a half-decade younger than their most youthful English or Northern Irish colleague. 

Barring ill-health or disaster, both men potentially have more than a decade and a half of judgin' in London before them. If Reed and Hodge prove as zesty as Lord Hope, the  no vacancies sign will hang outside Middlesex Guildhall for a substantial period of time and they can expect to be colleagues on the Court until the late 2020s. Unless, of course, we win the referendum in 2014, in which case the brace of Justices will have to seek gainful employment elsewhere...


  1. What would happen if Scotland goes independent is debatable. Would the existing Scottish SCJs be thrown out. I am not at all sure that they would be.

  2. ObiterJ,

    Perhaps not. They already spend most of their time deciding English appeals, after all. It'd just seem a curious professional choice to maintain for a Scots lawyer. Unless, I suppose, you find London and not wearing a wig particularly convivial terms of employment...

  3. Starry Decease Is2 March 2013 at 13:28

    The judicial retirement age for judges appointed after 31 March 1995 is 70.

    As such, assuming that the independence referendum results in a 'no' vote, Lord Hodge will only be able to serve on the UK Supreme Court till 2023, not 2030. In addition, Lord Reed would be forced into retirement in 2026.

    I do not think that there can be any complaints over the appointment of Lord Hodge. He is widely regarded as the best judge in the Court of Session. At a commercial law conference two years ago he was cited so frequently by advocates that it almost raised a laugh.

    If independence does arrive in 2016, I would assume that we would have to have some form of Constitutional Court to interpret the new constitution proposed by Alex Salmond in January 2013. In that event I would assume that Lord Reed and Lord Hodge would be flown in as President and Deputy President of the Constitutional Court.

  4. Starry Decease,

    An eagle-eyed spot! Quite right too. 2026 it is. Still a good long while, mind you. Interesting point about a constitutional court. Would we - should we - adopt a distinct body, or invest a single institution - an apex court - with competencies over fundamental law and criminal and civil matters?

    I should also say, I'm not impugning Hodge at all, or saying that he didn't merit appointment. In line with your experiences, I've only heard good things from folk closer to Court of Session practice than I am.