Life with the Supremes: where did our love go?
Scots Law News has paid its first visit to the new UK Supreme Court and, while duly impressed by the splendid renovation of the former Middlesex Guildhall without and within, was particularly 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, it is hard to know whether to give pride of place to Lord Brown's attempt in McInnes v HM Advocate [2010] UKSC 7, 2010 SLT 266 (discussed at 483 below) to earn a place in the Scottish judicial pantheon alongside Lord Cranworth and his celebrated comment in Bartonshill Coal Co v Reid (1858) 3 MacQ 266 at 285 (“.. but if such be the law of England, on what ground can it be argued not to be the law of Scotland?”), or to the Oxford-tutor style with which a dissenting Lord Rodger chose to highlight perceived flaws in the reasoning of the majority in Martin and Miller v HM Advocate [2010] UKSC 10 (discussed at 487 below). Lord Rodger's strictures are too long to quote here and should be savoured in the original, perhaps most enjoyably while listening to the original Supremes’ greatest hit, “Where did our love go?”. The general thrust of Lord Rodger's grading of his colleagues 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 (para 36)
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.
Meanwhile in the annual lecture of the Edinburgh Centre for Commercial Law (http://www.law.ed.ac.uk/centreforcommerciallaw/), given on 12 March 2010, Lord Hope emphasised that the Supreme Court was not just a movement of judicial furniture across Parliament Square but an opportunity to change and to modernise. More, however, could be done, notably on the question of leave to appeal in Scots cases, on which Lord Hope 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 (discussed at 269 above) as providing elegant solutions to some 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 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 about loss of Scottish influence over what happened in England and, by implication, in the United Kingdom.
