Southern perspective

Congratulations to the Scottish Young Lawyers Association for its ambition in presenting the first of what it is hoped will be an annual lecture on Friday evening. And especially for succeeding in attracting a speaker of the calibre of Lord Hope, Deputy President of the UK Supreme Court, to its inaugural event.

Lord Hope's title, "Scots law seen from south of the Border", might suggest a critical appraisal of the state of our system by his English brethren. But his lecture was more about his own perspective as it has developed since he first became a Law Lord in 1996.

In addition there were some revealing insights into the workings of the Supreme Court itself, especially relevant in the wake of the fuss over the Cadder decision, followed through in the proposed amendments to the Scotland Bill, in the form of allegations that the Supreme Court and the UK Government between them are pushing through a universal appeal jurisdiction in Scots criminal law matters where none existed before.

While careful to avoid matters of direct political controversy, Lord Hope made it quite clear (a) that that was not what was being proposed; and (b) that the Supreme Court had neither the desire to achieve nor the resources to cope with such an outcome.

The reason for allowing appeal of any sort, he affirmed, is the same as it always was - to ensure that the observance of our treaty obligations in relation to the European Union and the European Convention on Human Rights is secured in a consistent manner across the UK jurisdictions.

Lord Hope went on to explain how the court goes about its work. Given the common ground between much of Scots and English law, often the issues raised are common across the UK, either under statute or even sometimes at common law - in relation to which he cited Lady Hale's comment (in Mitchell v Glasgow City Council) on the influence of Scottish cases in the development of the law of negligence.

"There is not much for us to fear from the Supreme Court", he remarked - even in areas of the law where there are marked differences between Scotland and England. With the English justices each having a more specialist background in their different ways, the court commonly operates by allowing a leading role to those most familiar with the subject matter of the case under appeal, and it is no different in appeals from Scotland - the views of the two Scots justices are accorded particular respect.

That does not mean that questions are not asked by the other judges; for example in the recent RBS v Wilson case that overturned established practice regarding defaulting debtors under standard securities, it was a question by an English justice that led to the different route ultimately adopted. And Lord Hope and his compatriot Lord Rodger are careful to be seen to be independent of each other (and have occasionally disagreed).

As for Cadder, whatever you think of the decision, said Lord Hope, it was a good example of the way the court goes about its business. There had been "no pressure" from the other justices to reach the decision given; and having examined the Convention jurisprudence aided by a "helpful intervention" from the Justice organisation, "we would have been failing in our duty if we had not dealt with the case in that way".

Political comment on this and other cases indeed led Lord Hope to suggest that it was because they can be relied on to be independent and impartial that these decisions are left to the  judges.

In my respectful opinion, Lord Hope's comments were both timely and reassuring, and deserve a wide circulation to counter much of the ill-informed political posturing over the court's work in general and the Cadder decision in particular. His concluding remarks, that Scots law has been strengthened by the existence of the appeal jurisdiction, and that if it is to compete with other systems it must look outwards and not inwards - as it did when it was developing as a legal system - were especially pertinent. Insular attitudes have always been unhealthy, and should be eschewed as firmly now as at any time in the past if Scots law is to survive and thrive.

The lecture should be available shortly on the SYLA website www.syla.co.uk.