Scots Law Seen from South of the Border
| Published date | 01 January 2012 |
| Pages | 58-76 |
| Date | 01 January 2012 |
| DOI | 10.3366/elr.2012.0083 |
I could not help noticing that I was described in the billing for this lecture as someone who was, at one time, a young Scottish lawyer. The reminder that one was young once is, I suppose, something that one has to face with increasing age. The fact that I still feel quite young – I am certainly not the oldest of the current team of Supreme Court Justices – is beside the point. After all, it is a fact that I joined the profession in 1965, more than 45 years ago, and that I started to study law nearly 50 years ago in 1962 – long before any of you were first thought of. But my comparative longevity does have one advantage. I can look back to how things were when I started, to see whether I can offer you anything by way of warning or encouragement as you set out on your careers. So let me offer you these thoughts before I turn to my advertised subject matter.
It was, of course, a different world in 1962. It was not quite the world of silent motion pictures, although many of the films were still in black and white. Sex had not yet been discovered. That did not happen until 1963, according to the poet Philip Larkin.
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The way the qualification system was organised in those days certainly assisted this process. My father was a solicitor and I could, if I had wished, have joined his firm as soon as I had my law degree as there were no rules against this practice in those days. In search of a greater freedom to develop my own career, I decided to go to the Bar instead. The only rules I had to satisfy there were that I had to have the right passes in my law degree, that I spent a year devilling and that I could answer in Latin three questions that were put to me in Latin at the Faculty's oral examination. There was no requirement to sit for the Diploma in Legal Practice, as it had not yet been invented. The law degree which I studied for was an ordinary degree, for which the course was three years. An honours degree was not available, and when I left the university it was still in its infancy. So I had no option but to take the ordinary degree like everyone else. It was, it has to be said, a very ordinary degree. One of the professors who taught us Scots law spent almost his entire time reading out, word for word, chapters from that well-known textbook, Gloag and Henderson. When, one day, he departed from that text we discovered that he was reading instead from an article that had been published in the Scots Law Times. It was, for the most part, learning by rote, and one was tested by class exams every fortnight.
Most of the passes I needed were in things that everyone had to do to get their degree at the ordinary level – Scots law, constitutional law and criminal law, for example. To satisfy the Faculty I had to do evidence and procedure, which was taught to us by part-time lecturers from the Faculty of Advocates. I also had to do forensic medicine. This presented more of an obstacle for me than you might have thought, as I fainted in the first lecture. In the event, thanks to some credits which I had from a previous arts degree, I was able to complete all but two of the courses in which I needed passes in my first two years. So it was possible for me to combine my third and final year with devilling, which is what I did. There was no requirement to qualify as a solicitor before you started devilling, although we were advised that it might be helpful to work for a while in a solicitor's office. This was done as a so-called Bar apprentice, unpaid. Many of the Edinburgh firms were happy to oblige, and they took some pride as they watched their previous law apprentices make progress at the Bar. What I did was to work for two different firms – one of them was Simpson & Marwick – in the holidays, and I shall always be grateful to them for their help and encouragement.
You will no doubt be shocked to learn that I received my law degree on a Wednesday in July 1965 and that I was admitted to the Faculty of Advocates on the Friday of the same week. Only six people were called to the Bar in my year – this was not abnormal – and I was the only one to be called on the day when my turn came. I have to confess, as I look back, that I was almost wholly unfit to practise. I had a reasonable grasp of written pleadings due to my year's devilling. But I had only the most sketchy knowledge of the rules of court, to which our attention had not been drawn at all at the university. Nor had I really been tested in the art of conducting a case in court. My training was confined to observing the work done by my devil masters. So I had to set about learning my trade on the job.
It was very slow going, as there was not much work available. I had the occasional appearance on the motion roll and one or two undefended divorces, which was the staple diet for beginners at the Bar in those days. I remember my first venture into Glasgow High Court, as an unpaid advocate on the Poors’ Roll. This was before criminal legal aid had become fully available. I had only the vaguest idea of what I was supposed to do. I was instructed for the second accused, which I hoped would give me some kind of protection as counsel for the first accused would put his questions first. My hopes were dashed when the first accused pled guilty and I was on my own. I could think of almost nothing to put to the witnesses for the Crown or to say on my client's behalf. The case was over all too quickly, and a verdict of guilty was returned within minutes. I hoped that it was the right verdict. It was obvious that I was not going to get very far as a criminal lawyer.
After about two years of almost no work Simpson & Marwick began to instruct me as one of their team of junior counsel for the National Union of Mineworkers. The coal mining industry was still very active in Scotland, and their cases made up quite a large proportion of the reparation business in the Court of Session. I found myself addressing juries at the outset of civil jury trials and appearing in frequent procedure roll debates in which counsel for the National Coal Board subjected our pleadings to meticulous criticism to persuade the Lord Ordinary that the case was unsuitable for jury trial. Here at last I found myself getting into my stride as an advocate. As I was now over 30 I was on the verge of ceasing to be a Young Lawyer. So I can draw a veil over the strange progression of events that has resulted in someone as under-qualified as I was, even by the most modest of modern standards, to enter practice at all sitting now as a Justice in the UK's highest court.
I can only applaud the time and trouble that you have undertaken to get to where you are now. The great breakthrough towards raising standards began in the university law faculties. First there was the introduction of the honours degree, which transformed the way that law is taught. It attracted a new generation of academic lawyers to the teaching of law in the law faculties. To them we owe a huge amount, as they have done so much to re-invigorate the study of, and writing about, Scots law. Then there was the introduction of a much more organised system of training for those who wanted to enter the profession. This was in response to the demands of increasing public scrutiny of what lawyers do and of their ability to do it. Diversity within the professions has been transformed – more still to be done, but a great deal has been achieved. All of these things are good. People like me had to learn the hard way, by trial and error. The public today expect, and are entitled to expect, a high standard of performance from everyone as soon as they are qualified. Preparation for practice takes time, but it is time well spent. In today's world it cannot be otherwise. It would be unthinkable now to turn the clock back to how things were done 50 years ago. Of course, aspiring lawyers must now study for longer and, often, accumulate more debts. The changes to university funding may well make this situation worse, depending on what happens here in Scotland. I do sometimes wonder whether more could be done to provide financial support for those who wish to make their career at the Scottish Bar, as is done both by Inns of Court and individual Chambers in England. But if there is a lesson to be learned from what has happened to me in my career, it is that in our profession you must keep on learning. And make the most of your opportunities. You never know where they may take you.
Let me now turn to my advertised subject – Scots law as seen from south of the Border. My perspective is, of course, moulded in part by my own background as a Scots lawyer and in part by the job that I now do in London. To put what I have to say about it into context, I should say a little bit about both of them. My background of legal education may have been rudimentary by modern standards, but it did instil in me a strong sense of the separate identity of Scots law. I was never taught by Professor TB Smith, who was one of the greatest advocates for our system in the third quarter of the last century. But his influence was everywhere. We were taught to be proud of our system and to be suspicious of...
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