Over two-hundred law students, trainees, solicitors and advocates attended the inaugural annual lecture of the Scottish Young Lawyers’ Association. The keynote speaker was The Right Honourable Baron Hope of Craighead, KT, PC, QC, FRSE. Lord Hope is the Deputy President of the Supreme Court of the United Kingdom of Great Britain and Northern Ireland along with being Chancellor of the University of Strathclyde in Glasgow. Lord Hope is arguably considered the 21th Century most eminent scholars of jurisprudence and is one of only ten individuals to have served on the final session of the Appellate Committee of the House of Lords and the inaugural session of the Supreme Court.
The lords of appeal in ordinary or Law Lords were physically moved from the chambers and halls the Parliament Building at Westminster to the newly created bench at Middlesex Guildhall, which is located between Westminster Abby and the HM Treasury Building. The House of Lords, which is the upper house of the UK’s legislative branch of government, served as the highest court of appeal from 1399 to 2009. The Law Lords used to hear appeals each day in the chamber of the House of Lords. During the Second World War the House of Commons was bombed and the Law Lords moved their hearings to a nearby committee room to escape the noise of the building repairs, constituting themselves as an Appellate Committee for the purpose. In fact, this temporary arrangement proved so successful that it became permanent, and continued until it was abolished and replaced by the Supreme Court on 1st October 2009.
Lord Hope’s speech was called, “Scots law seen from south of the border”, and focused on a comparison between the world when he began law school at the University of Edinburgh in nearly 50 years ago. He emphasised how much has changed, but said to long to go backwards is not the way forward and stressed how much better off students are today with a refined and long educational tenure to join the profession of law.
Lord Hope also mentioned how much technology has changed and how much more of a demand is on the profession for accuracy, efficiency and minimizing errors. His reflection of his career also included a bit of rye humour, as he said, “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. Nor indeed had drugs. For the most part we did what we were told. As students we all wore jackets and ties and, unlike those who followed soon afterwards, we all had short hair cuts, unlike a few years later when Gordon Brown, the former Prime Minister, had hair down to his shoulders.”
The speech went on to address how the Supreme Court dealt with Scottish cases being appealed from Inner House of the Court of Session (unlike England, the Inner House has a right of appeal to the Supreme Court). Lord Hope spoke of the Scottish case, “Sharp v Thomson[1], which was followed a few years later by Burnett’s Tr v Grainger[2]. It was a case about personal insolvency. There the question was whether the house was part of the ‘whole estate’ of the debtor so as to be part of the estate which vested in his trustee in bankruptcy. The House of Lords distinguished Sharp and held that it did: the trustee does indeed take both the house and the money. Centuries of case law made clear which meaning was to be given to phrase ‘the whole estate of the debtor’ used in the Bankruptcy Act. It was made clear that there was no intermediate right between a personal and a real right, and that delivery of the disposition did not give rise to a trust, either actual or constructive, in favour of the buyer. By now the personnel in the House of Lords had changed. I was one of the two Scottish judges on that case, along with Lord Rodger. Lords Hoffmann, Bingham and Hobhouse made up the rest of the panel. Anyone who reads the opinions of Lords Hoffmann and Hobhouse will see that they felt strongly that the case should have been decided the other way. But they did not dissent. Lord Bingham, however, felt strongly that on an issue such as this – where there was genuinely a distinctive point of principle of Scots law – that if the Scottish judges reached a particular decision, it was not for him – unfamiliar with the system – to interfere.”
The final points Lord Hope made concerned the Cadder Case[3], in which the Supreme Court upheld the ECHR against the Scottish procedural rule of being able to interrogate a detainee for up to six hours without legal representation. He could not make too many comments, as there are five cases on appeal to the Supreme Court, which concern clarifying Cadder.
Lord Hope concluded by saying as long as the Scottish courts sent business down to London, then the Constitutional Convention of having two of the twelve justices on the Supreme Court coming down from Scotland and one from Northern Ireland would continue to be upheld. He did mention that if Scotland were to make the Court of Session the highest court in the land, then there would be no need for the convention to be sustained.
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[1] 1997 S.C. (H.L.) 66; 1997 S.L.T. 636; 1997 S.C.L.R. 328; [1998] B.C.C. 115; [1997] 1 B.C.L.C. 603; 1997 G.W.D. 9-364
[2] [2004] UKHL 8; 2004 S.C. (H.L.) 19; 2004 S.L.T. 513; 2004 S.C.L.R. 433; [2004] 11 E.G. 139 (C.S.)
[3] [2010] UKSC 43; [2010] 1 W.L.R. 2601; 2010 S.L.T. 1125; 2010 S.C.L. 1265; 2010 S.C.C.R. 951; [2010] U.K.H.R.R. 1171; (2010) 107(43) L.S.G. 21; (2010) 154(41) S.J.L.B. 30
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