Life with the Supremes: where did our love go?

Scots Law News paid its first visit to the new UK Supreme Court on 15 March 2010 and, while duly impressed by the splendid renovation of the former Middlesex Guildhall without and within, was most appreciative of the public cafeteria, which may well offer the best value-for-money light lunch in London.

But while Scots Law News marches on its stomach, its appetite for stories about the new court and its Justices, aka The Supremes, has been whetted by attendance at various seminars and lectures on the subject since the turn of the year, plus the doings of the Justices themselves in their early Scottish cases.

Starting with the Justices themselves, it is hard to know whether to give pride of place to Lord Brown’s attempt in McInnes v HM Advocate [2010] UKSC 7 para 36 to earn a place in the Scottish judicial (or should that be judicious?) pantheon alongside Lord Cranworth’s celebrated comment in Bartonshill Coal Co v Reid (1858) 3 MacQ 266 (at 285), or to the Oxford tutor style with which a dissenting Lord Rodger chooses to highlight perceived flaws in the reasoning of the majority in Martin and Miller v HM Advocate  [2010] UKSC 10 paras 142-149.  Lord Rodger’s strictures are too long to quote here and should simply be savoured in the original, albeit perhaps most beneficially while listening to the original Supremes’ greatest hit, “Where did our love go?” (a performance here on YouTube).    Also helpful, at least to those of a philosophical and historical cast of mind, is Aidan O’Neill’s 7 March blog on the subject here. 

The general thrust of Lord Rodger's grading of his pupils may be seen in this concluding passage (para 149) –

"Until now, judges, lawyers and law students have had to try and work out what Parliament meant by a rule of Scots criminal law that is 'special to a reserved matter'.  That is, on any view, a difficult enough problem.  Now, however, they must also try to work out what the Supreme Court means by these words.  It is a new and intriguing mystery."

Lord Brown’s Cranworthian dictum is commendable in its brevity,  if not its sentiment, and can simply be quoted here –

“This, I apprehend, would be the position in English law (both as to the test to be applied – in England as to whether the conviction under appeal is unsafe – and as to the decision being one for the appeal court itself) and I can see no good reason why it should be any different under Scottish law.”

Just the starting point we should have in Scottish appeals.

The seminar on the Walker Report held in the Edinburgh Law School on 26 February saw a range of views on how the Supreme Court might develop in a Scottish context, with Dr Gillian Black favouring the retention of the new status quo, Professor Chris Himsworth arguing for the supremacy of the democratically elected legislature while also criticising a UK court’s use of the English court term system (although Scots Law News thinks this was the practice of the House of Lords too), and Aidan O’Neill QC pointing out the tensions arising from the High Court of Justiciary’s loss of control of the Scottish criminal justice system (illustrated by the McInnes and Martin and Miller cases already mentioned).  Your reporter suggested that there had been insufficient consideration of why any legal system, but especially a small one, needed  three tiers in its judicial hierarchy; perhaps the top level should be a judicial law commission, reviewing the law more systematically and  not just correcting the decisions of the lower courts; but this was dismissed by unkind other contributors as simply your reporter’s bid for the highest judicial office. 

Lord Hope’s lecture about the Supreme Court in the Edinburgh Law School on 12 March has already been blogged elsewhere on this website; but it seemed to your reporter to say several further interesting things.  The court was not just a movement of judicial furniture across Parliament Square in Westminster; the opportunity to change and modernise had been taken in various ways.  But in Lord Hope’s view, not far enough, and he itemised some of these, notably the question of leave to appeal in Scots cases, on which he now holds an affirmative view.  There were also such discontinuities with the House of Lords as the Justices being no longer “noble and learned friends” (all too obvious, one might think, in the Martin and Miller case).  In answer to a question, Lord Hope declined to say how far the principle of the House of Lords 1966 Practice Statement declaring that court’s power to over-rule itself had been carried over into the Supreme Court; but he did seem to suggest that if it had, only a court of greater numbers than the previous one could actually over-rule the latter. 

Although Lord Hope complimented the Walker Report as providing elegant solutions to some of the difficult questions about the Supreme Court’s place in the Scottish legal system, in the end he thought the status quo was to be preferred as a practical matter.  His principal worry on this score seemed to be dilution of the Scottish presence in the Supreme Court, especially as even now there was no statutory guarantee of two Scottish judges and some feeling in England that two were not justified given the low number of Scots appeals.  Professor Walker’s point from the floor, that this would not necessarily dilute the Scottishness of the Scottish legal system, was met by concern over loss of Scottish influence over what happened in England and, by implication, the United Kingdom.  There we had to leave it for the nonce.