There used to be an offence at Scots law known as “murmuring” the judges. It meant spreading wicked slanders about their legal eminences and dates from the days when Scots judges ran the risk of being “peebled” (stoned) in the streets if the Edinburgh mob disapproved their judgments. Nowadays, Edinburgh folk are more deferential. The worst an incompetent judge can expect is early retirement on a fat pension. But, given the advent of the Scottish Parliament, the ongoing row about the way Scots judges are appointed and the recent Appeal Court ban on “temporary” sheriffs, it seems a good time to run an eye over the men and (very few) women who dispense justice. And, at the risk of a serious “murmur”, where better to start than at the top.
Anyone wanting to see how a high-flying Scots lawyer can become a top judge should take a look at how Alan Rodger (now Lord Rodger of Earlsferry) became Lord President and Lord Justice General. Here’s the way it happened. Alan Rodger was the Tory government’s lord advocate between 1992 and 1995. For the last few months of his regime his right-hand man, the solicitor general for Scotland, was Donald Sage Mackay (now Lord Mackay of Drumadoon). In 1995 Rodger resigned as lord advocate and simultaneously appointed himself a judge of the Court of Session. At age 51 he was one of the youngest men on the Scottish bench.
When Rodger moved out as lord advocate, Mackay moved in. Then, when the top judicial post of lord president fell vacant in 1996, Mackay awarded it to his old boss Alan Rodger. So, in less than a year, Rodger went from being one of Scotland’s most junior judges to the most senior law lord in the land, lord president and lord justice general. It was a remarkable progress. And one that owed everything to the patronage of the lord advocate. Eyebrows, as they say, were raised.
Now, no one denies that Rodger is a brilliant lawyer. He is one of the best legal minds of his generation. And, from all accounts, he has proved himself an able, fair and hard-working lord president. But some legal pundits argue that the way he vaulted to the top of the judicial tree goes straight to a serious flaw at the heart of Scotland’s much vaunted legal system – the role of the lord advocate.
“It just cannot be right that a political appointee, who is the Crown’s chief prosecutor in Scotland, should also have the power to appoint judges – who must be impartial – to the Scottish bench,” says Robert Black, professor of Scots law at Edinburgh University. Black is one of the country’s more incisive legal commentators. For years he has been arguing that creating judges should be left to the kind of independent judicial appointments commission that is common elsewhere in Europe.
“Scotland and England are almost unique in the way we appoint judges,” Black says. “In Scotland it’s down to the lord advocate. In England it’s the job of the lord chancellor. But at least the lord chancellor never prosecutes in the courts. In Scotland the lord advocate does appear in court.” And sometimes, Black says, before men who owe him their jobs. “If this issue is ever raised before the European Court of Human Rights or even the Privy Council – which might very well happen – then Scots law could find itself being seriously embarrassed.”
So what kind of bench have successive lords advocate created? Unsurprisingly – and like almost every elite in Britain – it is overwhelmingly white, middle-aged, middle class and male. Most judges are drawn from the few hundred members of the Faculty of Advocates, a source of some resentment among the much larger body of Scots solicitors.
Rodger presides over the three judges of the “first division” of the “inner house”, while Lord Cullen heads the “second division” legal trio. These eight top judges form Scotland’s civil and criminal appeal courts. The remaining 19 lords of session form the “outer house”. There are only two women among them, Lady Cosgrove (Hazel Aronson) and the newly elevated Ann Paton, QC. And while civil cases may be appealed to the House of Lords, criminal cases may not. When it comes to criminal justice, the words of the lords of session are final.
At less exalted levels, justice is dispensed through six ancient sheriffdoms which bear little resemblance to local authority boundaries. They are: Grampian, Highlands and Islands; Tayside, Central and Fife; Lothian and Borders; North Strathclyde; Glasgow and Strathkelvin; South Strathclyde, Dumfries and Galloway.
Each sheriffdom is presided over by a sheriff principal who runs his own stable of sheriffs. There are no women among the six sheriffs principal, although a dozen female sheriffs are now making their way up through the ranks. With the demise of the temporary sheriffs, cases are backing up all over Scotland.
But it is among the 27 lords of session that judicial policy is shaped. And a striking number of those – around one-third – are the products of legal families, the sons of solicitors, advocates and sheriffs. A handful of them are the sons of judges: Lords Cameron, Milligan, Johnston and Kingarth. Lord Kingarth (Derek Emslie) is a member of a genuine legal dynasty. His father, Lord Emslie, was lord president between 1972 and 1989 and his brother George Emslie is currently dean (ie, head) of the Faculty of Advocates. The newly created judge John Wheatley is the son of the late Lord Justice Clerk Wheatley (and brother-in-law to the Labour MP Tam Dalyell).
The advent of John Wheatley brings to three the number of judges who are Roman Catholics. The other two are Lord McCluskey (about to retire) and Lord Gill. Given that Catholics make up more than 20 per cent of the Scots population, that is a tiny representation. On the other hand, Scotland’s tiny Jewish population has two well-regarded judges in Lord Caplan and Lady Cosgrove. So far no judges have emerged from the “ethnic minorities”.
But, unlike the English judiciary, there is no preponderance of public schoolboys and Oxbridge graduates. Most of Scotland’s judges are the products of Scotland’s big-city day schools: Edinburgh Academy, the Royal High, Glasgow High School, Hutchesons’ Grammar, Dundee High School, Dalziel High School. And almost all learnt their legal trade at the universities of Edinburgh and Glasgow.
And, if the latest issue of Who’s Who is to be believed, no fewer than 16 of our judges are members of that dismal essay in 1960s modernism, the New Club in Princes Street, Edinburgh. Some day, someone will disentangle the strings of power and influence that radiate out from that peculiar establishment (with its own swimming pool) above the Princes Street shops.
The overall picture is predictable; the detail is intriguing. To describe Scottish judges as a self-perpetuating elite would be wrong, but at the same time, they are plucked from the small talent pool of the Faculty of Advocates by whoever is lord advocate of the day. And he is a political appointee. A remarkable number of judges have emerged from Scotland’s legal families, but then professionals have a way of following in their father’s footsteps, particularly if he is well paid.
On the Scottish bench the grip of the Edinburgh/Glasgow professional class is very strong. Judges from working-class backgrounds remain rare. The shortfall of Roman Catholics is marked and women are few and far between. And Scotland’s ethnic minorities are just nowhere to be seen.