The shameful treatment

of Lord Hope

augurs ill

Rings of truth: part 2

Kenneth Roy

If I were asked to draw up a list of the 10 most intellectually impressive people in Scotland, the name David Hope would be on it. That is why the vitriol heaped on him, very regrettably inspired at the highest level, strikes me as not only deplorable but deeply sad. He is a man of exceptional wisdom. Such people should be valued in Scotland, not subjected to ridicule and disdain.
     No doubt, if pushed, the Scottish ministers would argue that it's nothing personal: that the hostile reaction to Lord Hope's judgement in the Fraser case was an attack on the legitimacy of the UK Supreme Court in relation to Scottish human rights appeals, rather than an assault on the reputation of Lord Hope himself. But since he is deputy president of that court, since he is on it partly to safeguard Scottish interests, since he led the panel of judges which considered the Fraser appeal, and since he delivered the judgement which provoked howls of indignation in Edinburgh, it is impossible to escape the conclusion that, in the eyes of Mr Salmond and his colleagues, the UK Supreme Court and Lord Hope are pretty well indivisible.
     The charge sheet against him includes two main allegations: that his verdict has undermined the integrity of our proud justice system; and that he and his mates down there know so little of Scots law that they can no longer be trusted with it.
     In yesterday's introductory piece, I tried to deal with the first half of the charge sheet. Our proud justice system, whose independence must be saved at all costs from southern interference, was responsible in the Fraser case for a disgraceful failure to disclose a vital piece of evidence, as a result of which the accused could not and did not receive a fair trial. So wonderful is this justice system that, had it not been for the appeals procedure which led in the end to the UK Supreme Court, the evidence in question would probably never have come to light. Had it, however, been produced at the trial, as it should have been, the Crown case would have collapsed at once, as the Crown itself has been big enough to admit.
     There are two ways of looking at last week's judgement. We can either huff and puff about an English court meddling in Scottish affairs that are none of its business, and run off with the ba' like wee laddies; or we can be grateful to Lord Hope for sorting out a mess entirely of our own making and preparing the way for a re-trial. Motivated mainly, it seems, by some misguided patriotism, we have chosen to look at it the first way rather than the second.
     Alex Salmond is entitled to prefer Strasbourg to London for human rights appeals, in which case Scottish appellants will wait years. But the aggressive response to the Hope judgement makes it look as if Strasbourg is not the considered policy of his government, simply an emotional reaction to a judgement the first minister didn't fancy much. It feels disturbingly impulsive. It augurs ill.
     The second half of the charge sheet is more ridiculous still – that the wealth of accumulated knowledge and authority embodied in the UK Supreme Court, where the finest judges of Scotland, England and Wales and Northern Ireland come together, counts for nothing; that Lord Hope and his Scottish colleague, Lord Rodger, know so little of Scots law that their limited jurisdiction for it must be stopped, and stopped as quickly as possible, by any means at the Scottish government's disposal.

     David Hope is a Scot. He was born in Scotland. He was educated at a Scottish university. Although he works in London, he continues to live in Scotland. Earlier in his career he was an advocate-depute prosecuting in the Scottish criminal courts, dean of the Faculty of Advocates, and ultimately lord justice general of Scotland, before his appointment as a lord of appeal in London. These are facts. Now here are two opinions based on these facts: (1) there is no one who knows more about Scots law than David Hope; (2) he brings more understanding and deep knowledge to its interpretation than anyone sitting in Strasbourg.
     Some years ago, I chaired a meeting at which Lord Hope was one of the principal speakers. He delivered a speech so thoughtful that I asked his permission to republish it in the Scottish Review. In that speech, he spoke philosophically of the progress of political management, the move of the centre of gravity from Westminster to Holyrood, his feeling that he himself, as well as many other Scots in London, had moved from 'where the action is into exile'. But he continued to believe that, in the hearing of appeals, there remained a place for a larger stage than Scotland itself.
     He then said:
     Dealing with appeals at the UK level engages a process of cross-fertilisation. This has always been the best reason for maintaining a final right of appeal to London from the supreme courts in Scotland. For example, the early devolution cases were heard before the Human Rights Act came into force in England. Our system was already up and running before theirs was. Much of what was said and thought about on these issues in Scotland found its way into English law through us.
     More recently we have found that some aspects of English law can be used to help to inform and develop Scots criminal law and practice. No system of law can afford to remain isolated. Much of Scots law was developed, after all, from contact with universities in the Netherlands, France and Italy in the 17th-century. When the Court of Session was reformed at the beginning of the 19th-century, the commissioners who were entrusted with this task were drawn from both the English and Scottish legal professions. The sharing of ideas between England and Scotland continues, and it is good for the law on both sides of the border.
     At great speed, and apparently in a mood of great fury, the newly-elected Scottish government is preparing to cast aside this shared history of ideas. The critical friends of the new government – I count myself as one of them – are entitled to feel aghast. Why the hurry? Where's the poise, the statesmanship, in any of this? And where is the sense of personal decency towards a man who has served Scotland so well? The treatment of Lord Hope is quite shameful.
     In the same speech, so much of which feels eerily prescient, Lord Hope reminded his audience that it is the responsibility of judges to hold the line – to act as guardians and watchdogs. He added:
     In 1776, Thomas Paine said that, as in absolute governments the king is law, so in free countries the law ought to be king – and there ought to be no other. It is our task to hold the executive to that principle. That is as true of the Scottish Executive as it is of the executive at Westminster.
     Quite.

Kenneth Roy is editor of the Scottish Review