Book reviews

Reed and Murdoch: Human Rights Law in Scotland

4th edition by Jim Murdoch

PUBLISHER: BLOOMSBURY
ISBN: 978-1780435732
PRICE: £112 (e-book £120)

It is hard to believe this authoritative text is now in its fourth edition since first published in 2001. Much has developed since that first edition and, indeed, much since the last edition.

As Professor Murdoch observes in the preface, within the domestic context the Supreme Court has offered the view that the common law ought to provide a basis of challenge rather than people immediately rushing to seek a remedy based in a Convention right. And Lord Reed noted in a speech at Durham University in 2014: “Where the existing common law or statute falls short of what is required to meet Convention requirements, the courts should respond by developing the common law or interpreting the relevant statute in the light not only of Strasbourg judgments but also the law of other common law jurisdictions, such as Canada and Australia, so that our own law meets the necessary standards.”

Judgments against the UK by the Strasbourg court are rare, and indeed, in 2016, the number of pending UK cases was less than 0.5% of the caseload. This is more reflective of the aim of the Human Rights Act of “bringing rights home”. There were only two judgments of the court finding the UK in breach in 2015.

Of course, it does not follow this book is rendered redundant. Au contraire!

In the wider context, an understanding of Convention rights is more necessary than ever, with a resurrection of the consideration of the adoption of a UK Bill of Rights, and threats to the rule of law in EU member states (europa.eu/rapid/press-release_MEMO-17-5368_en.pdf).

The structure of the book is straightforward and logical. It begins by placing the ECHR in the context of Scots law, defining, for instance, public authorities and the extraterritorial application of the Human Rights Act 1998, followed by the Scotland Act 1998, the devolution settlement and vires of the Scottish ministers and Parliament. A chapter on the wider European framework for rights protection is followed by a chapter devoted to the application of the Convention in the domestic context, such as jurisdiction and the limitation on rights. Thereafter each of the rights is considered in fuller detail.

For the criminal practitioner much is gained by a careful reading of the chapters addressing articles 3, 5 and 6. These offer root and branch analysis of the jurisprudence and applicable case law of the ECtHR, Supreme Court and domestic courts.

This thorough book provides a comprehensive analysis of the rights and obligations arising under the Convention, ranging across civil, criminal and administrative law. The book contains a copy of the Human Rights Act 1998, Scotland Act 1998 (as amended), Convention and relevant sections of the Criminal Procedure (Scotland) Act, reflecting amendments for compatibility issues. A ready, readable book for the busy practitioner as well as those who require depth of understanding.

Lord Hope's Diaries: Dean of Faculty 1986-1989

PUBLISHER: AVIZANDUM
ISBN: 978-1904968894
PRICE: £25

“What is a diary as a rule? A document useful to the person who keeps it. Dull to the contemporary who reads it and invaluable to the student, centuries afterwards, who treasures it.” (Walter Scott)

“As there are a thousand thoughts lying within a man that he does not know till he takes up the pen to write.” (William Makepeace Thackeray)

“I want to write, but more than that, I want to bring out all kinds of things that lie buried deep in my heart.” (Anne Frank)

These quotes offer some insight into the art of diary keeping, what is now called journaling and perhaps even blogging. What purpose does it serve? First and foremost it provides an opportunity for the diarist to record, with relative immediacy, thoughts on events around them and their part in them, whether as observer or participant.

This slim volume is the second in the series of Lord Hope's diaries. This covers the period from his election as Dean to his appointment as Lord President. This is important, for Lord Hope was the first member of Faculty to be elected in preference to the Vice Dean in five elections and the first in 16 years to be elected Dean without having previously been a Faculty office bearer. Equally, while John Hope had been appointed Lord Justice Clerk in 1830 directly from the post of Dean, his own view is that he is the first to be directly appointed to the Chair from Dean.

There is a disarming candour. He writes frequently about being anxious, sad, depressed, and in the period prior to his appointment as Lord President he observes: “This time there is none of the sense of alarm and lack of confidence which beset my mind when I was being proposed for election as Dean.”

His period of office as Dean coincided with the appointment of Lord Mackay of Clashfern as Lord Chancellor in Margaret Thatcher's Government and the beginnings of the opening up of the legal profession, which as the Solicitor General for England & Wales said in the House: “They are to ensure that the public has the best possible access to legal services and that those services are of the right quality for the particular need of the client.” This was viewed by some at the Bar as an attack on it, and there was fierce opposition in some quarters to the proposal of rights of audience for solicitors. Lord Lane described the green papers as the “most sinister” to emanate from government. The Lord President, Lord Emslie, was opposed to the proposed reforms.

This led to much debate, but for the Dean a requirement to engage with the press and wider media, with the appointment of PR consultants together with a younger Quintin Jardine. Lord Hope writes of the tensions he experienced while attending the Law Society of Scotland AGM at Gleneagles and of a dinner when a shouting match broke out between Faculty and Society office bearers.

The Scottish bar was much smaller than today, with some 200 practising members. There are insights into the work of senior counsel, especially one who was Dean seeking to balance the duties of office with a busy legal practice. Weekends seem to be largely work-oriented with little letup. There are some acerbic observations on the absence and support of instructing agents, and some then junior counsel (now on the Court of Session bench).

There is insight also to the role of Dean. Lord Hope had to deal with some disciplinary issues and oversaw the introduction of a code of conduct and disciplinary rules. Names are mentioned and the results of the discipline committee shared. Lord Hardie and Lady Dorrian are seen in a light of true empathy and generous care.

There are many lighter moments as we follow the Dean travel abroad, not only representing the Faculty but also being anxious to ensure that Scots law and Scotland are both featured and, through his attendance and carefully timed interventions, remembered. He identifies the benefits to the wider interests of the law of ensuring a Scottish presence at international events and the rich dividends that repays in both friendship and awareness. Flights to the Netherlands appear to have gone from Edinburgh via Aberdeen or Glasgow.

Finally, as a diary must, despite being written only 30 years ago, it records a legal world that has gone. The Dean was assured of appointment to the Court of Session bench on the appointment of the Lord Advocate. The Lord Advocate could appoint himself to the bench if a vacancy arose – here we read of Lord Cameron of Lochbroom seeking to appoint himself Lord President, causing Lord Emslie to be determined to “stay on and on until Kenny is safely in the Outer House”. We also see a senior member of Faculty turn down the post of Solicitor General as “what in truth was a rather miserable and demeaning offer... number two to a man inferior to him in seniority at the bar”. That man was Peter Fraser (Lord Fraser of Carmyllie), whom Lord Emslie appears to have named “the jelly baby”.

Written with candour and an easy style, the insight in the next volume is to be relished.