Paper Lords & Invented Traditions

In the writing of this recent blog, which I might have paraphrased Walter Scott and called Tales of a (Great)Grandfather, I took another look down the spines of our old bookshelf and turned up Francis Watt's (1912) Book of Edinburgh Anecdote. Including scandal, witticisms, gossip, apocrypha and often not-terribly-droll tales about the various doings of the city's native tribes of doctors, scribblers, painters, churchmen, lawyers and spooks - yeah unto the middle ages - it begins with a chapter on Parliament House and wigged and gowned creatures which roost on both sides of the bench. 

The usual cast are all in attendance. Cantankerous Lord Monboddo, who ardently believed that humans were descended from the beasts of the field, and suspected we had vestigial tails discreetly snipped off by industrious midwives. The caustic polymath, Lord Kames, who immodestly banged out tracts on every subject under the sun, from farming to social development, between his judicial responsibilities in court. And Lord Braxfield, the reactionary, grogblossomed old villain, who presided over the High Court of Justiciary as Lord Justice Clerk, and seems to have felt that a great part of the population would be "none the waur o' a hangin'." Particularly pert young men, with the bad grace to read Thomas Paine to weavers, as the not-terrifically-Jacobinical Thomas Muir learned to his cost. 

But there is a nice section devoted to the practice of investing our High Court judges with judicial titles when they are elevated to high judicial office: Lord this - and now Lady that. As regular readers will anticipate, I don't really hold with this kind of frippery. I mean no harm to the learned Lords and Ladies of Council and Session and Senators of the College of Justice, but I can't see how the modest, democratic tag of "judge" would do them any injustice or disrespect. 

It is one of the cherished but suspect saws of a kind of Scottish nationalism, that acute class-consciousness is an outgrowth of a more English sensibility and that a more egalitarian rule obtains north of the border. If there is anything to that spirit, the practice of dishing out magic names to senior Scottish judges remains untouched by it. But as Watt writes, this established tradition of "paper lords" of the court is historically considerably patchier than its current solidity and taken-for-grantedness suggests. There's also a nice passage, echoing Dr Johnson's splendid story about the touchy proprietor of the Isle of Muck. Vanity of vanities, sayeth the preacher.

"Now, Scots law lords at one time invariably, and still frequently, take a title from landed estate. This was natural. A judge was a person with some landed property, which was in early times the only property considered as such, and in Scotland, as everybody knows, the man was called after his estate. Monkbarns of the Antiquary is a classic instance, and it was only giving legal confirmation to this, to make the title a fixed one in the case of the judges. They never signed their names this way, and were sometimes sneered at as paper lords. Today, where the relative value of things is altered, they would properly prefer their paper title.

According to tradition, their wives laid claim to a corresponding dignity, but James V, the founder of the College of Justice, sternly repelled the presumptuous dames, with a remark out of keeping with his traditional reputation for gallantry. "He had made the carles lords, but wha the deil made the carlines leddies?" Popular custom was kinder than the King, and they got to be called ladies, till a newer fashion deprived them of the honour.

It was sometimes awkward. A judge and his wife went furth of Scotland, and the exact relations between Lord A. and Mrs. B. gravelled the wits of many an honest landlord. The gentleman and lady were evidently on the most intimate terms, yet how to explain their different names? Of late the powers that be have intervened in the lady's favour, and she has now her title assured her by royal mandate.

Once of twice, the territorial designation bore an ugly purport. Jeffrey kept., it is said, his own name, for Lord Craigscrook would never have done. Craig is Scots for neck, and why should a man name himself a hanging judge to start with? This was perhaps too great a concession to the cheap wits of the Parliament House, and perhaps not true, for in Jeffrey's days territorial titles for paper lords were at a discount, so that Lord Cockburn thought they would never revive, but the same thing is said of a much earlier judge.

Fountainhall's Decisions is one of those books that every Scots advocate knows in name, and surely no Scots practising advocate knows in fact. Its author, Sir John Lauder, was a highly successful lawyer of the Restoration, and when his time came to go up there was one fly in the ointment of success. His compact little estate in East Lothian was called Woodhead. Lauder feared not unduly the easy sarcasms of fools, or the evil tongues of an evil time. Territorial title he must have, and he rather neatly solves the difficulty by changing Woodhead to Fountainhall, a euphonious name, which the place still retains."

"Such a flimsy evidential basis..."

The Lord Chancellor, Chris Grayling, isn't keen on judicial review. He sees it as a costly forum for feckless litigants, whose enthusiasm for resorting to law in their relations with public agencies needs curbing. The evidential basis (or lack thereof) underlying his proposals for England and Wales , and the principled case for introducing them, have been neatly filleted elsewhere in the blogosphere.  

I dare say, however, few of you will have heard much about the Scottish Government's own proposals to curb access to judicial review in Scotland, and limit litigants' opportunities to take our public authorities to court.

Helpfully, Professor Aileen McHarg of the University of Strathclyde recently popped up this splendid and accessible piece, summarising the Scottish Government's proposals, exploring the basis in evidence and the practical implications of Kenny MacAskill's plans to introduce an English-style "leave" or "permission" phase to Scottish cases and to impose new time-limits on lodging judicial review petitions with the Court of Session. Aileen concludes:

"It is disappointing to see such an important change to judicial review in Scotland being undertaken on such a flimsy evidential basis, and particularly surprising to see a government ostensibly committed to preserving the distinctiveness of Scots law so willing to follow the English approach, especially in a case where Scottish difference genuinely seems to be worth preserving. It is probably unlikely that the Scottish Government will be persuaded to change its mind – not least because, as Justice Scotland points out in its consultation response, it will be one of the major beneficiaries of the proposed change. One can only hope, therefore, that the Scottish Parliament will oblige it to do so."

This is important stuff, which will have a real impact on folk trying to review the way they've been dealt with by the state. McHarg's point about the paradoxical Anglicisation of many features of Scots law under this SNP government is also well taken. Regular readers who've lingered long in these parts will recall my vexation at the idea that Scotland ought to be "brought into line with England", as though the English precedent was, in its own terms, sufficient reason to adopt policy approaches preferred by our southron comrades. It is a perplexing vision of devolution.

Read Professor McHarg's whole piece here.

Aitken out...

In Holyrood's stage 3 debate on the Criminal Justice and Licensing Bill last summer, Baillie Bill Aitken's contribution prompted guffaws. The Official Report records the laughter of his colleagues. I dare say the man himself chose his words with a certain degree of levity, but his comments struck me as expressing something quite fundamental about  his self-image, how he regarded himself.

Bill Aitken: As a young man from a poor area of Glasgow, I had many friends in low places and got to know the criminal mindset. [Laughter.]

The Presiding Officer: Order.

Bill Aitken: That impression was confirmed when I sat on the bench and has been reinforced by discussions with criminal lawyers in Glasgow. For a troublesome and small minority, prison is the only thing that will work...

I have also noted with human interest how Aitken conducts himself in the Justice Committee, with advocates and lawyers and judges. He has a tendency to fawn deferentially to judicial figures. He is always at pains to employ the appropriate legal terms. With Aitken, these terminological exactitudes always struck me as bearing a certain show of deliberation. They are not casual references to known facts, but something he clearly regarded it as crucial to get right, to talk about things in the right sort of way, showing himself to be the right sort of person. He speaks like an anxious insider, uncertain of his status. Nor does it seem incidental that Aitken played m'lud in the justice of the peace court. He bears all the hallmarks of a frustrated would-be lawyer, who pursued a political career at the expense of a longed for judicial one. Aitken's cynical wordliness is premised on what he no doubt takes to be a tough, realistic, no-nonsense attitude towards life. He is unsympathetic. Unlike his colleagues on the bench, who were taken in by all those villains who are at it, JP Aitken saw clearly, shrewdly. On some level, he identifies with the villain. He is not sentimental. I can distinctly imagine him sentencing a man to death, with a grim twinkle in either eye. In his respect, these features are redolent of the qualities ascribed to Scots judges in their hanging days - gruff Lord Braxfield and even the philosophical Kames (Aitken albeit without the learning of either gentleman in the tricky business of the Corpus Iuris Civilis).

But enough with the background Aitkenology. These features of his character and self-understanding, emerge strongly from the appalling transcripts of the Sunday Herald journalist's interview with Aitken, published in full on the New Statesman website. The dirty minded bluntness, the knowing doubts, the self-flattering scepticism of a man of the world, who knows about these things and isn't hoodwinked by bints in alleys. The conversation is annihilating for Aitken's credibility. All the more because it reads like a relaxed expression of the views of a man who thought he was off the record, and that nothing he has said could prompt complaint.

Doubt is not in short supply in our institutions of public justice. It is an elementary principle of our criminal law that to convict, the prosecution must prove their case beyond reasonable doubt. In the name of doubt, we maintain laws of evidence which do not even allow many cases to be put before juries and judges to decide. To this appalling weight of doubt, Aitken thoughtfully contributed his own, immediately, unprompted. His first, spontaneous response to news of a violent gang rape was to begin cross-examining the testimony of the victim. His second, unprompted response to the story was to focus on the circumstances of this gang rape, unilaterally implying a background of prostitution, knowingly adding "there's a lot more to these city-centre rapes than meet the eye". As other bloggers have noted (cf Grace Murray on Bella Caledonia), Aitken's remarks reflect  two well-documented tendencies in the discussion of rape. Firstly, respond with immediate, uneven and unjustified suspicion towards the victim. Secondly, from the limited facts available, strongly emphasise those facts which impute some degree of responsibility to the victim and purport to undermine their moral stature. What was she doing in Renfield Lane? Where had she been? Did she go with somebody? These are the first questions which occur to you, Mr Aitken? You hear tell that a women has been outrageously sexually assaulted in public, and these are the first words you stammer out? 

I agree with the Corbie's conclusion. As convenor of Holyrood's Justice Committee, parliament reposes a measure of trust in Bill Aitken. This terrible conversation cannot but deprive him of that trust. He must be pried from his spot as Convenor of Justice Committee. If Annabel Goldie will not be the iconoclast, then Parliament must do so for her. If she will do nothing? On her head be it...

Scottish pupils increasingly philosophical...

If I was required to identify what the most important course of study I undertook during my school years, the choice would be easy: my Higher in Philosophy.

The curriculum gave me an excellent grounding in thinkers from Plato to the present, from Hume’s theories on causation to Descartes’ famous (but flawed) idea that scepticism could be ended by the proposition most familiarly rendered cogito ergo sum. Although there were, on reflection, some obvious gaps in our studies, nowhere else could I have gleaned equivalent knowledge. Neither history, nor geography or English literature could possibly compare. In its absence, the history of ideas would be wholly unknown to me, or seen in half-illuminating flashes, like the sun through heavy cloud. Philosophy awakens the mind to the possibilities and implications of thinking. In short, it is a call to consciousness, surely the essence of a critical and academic mind.

Imagine my glee to see that, according to the Sunday Herald, the number of pupils sitting the Higher in Scotland continues to expand, increasing by 25% over five years. Privately, I would advocate making this element of our children’s education far more general. One cannot dodge philosophy, whatever subject one throws oneself into. Epistemology – the study of the conditions of knowledge – and judgements about what counts as knowing – are woven the whole world through. Philosophy and thinking about thinking is the connecting thread.

I’m glad to see, however, that the egregious Rhona Brankin MSP seems to disagree. Treating the decline in the number of students addressing themselves to the dismal social science of economics – or its intellectually pigmified accomplice – accountancy – the watery-eyed Labouring soul, confided:

“These are the very subjects that should be important just now. But these are some of the first subjects to go at the time of education cutbacks. It is extremely worrying. In just one year, the SNP government has cut teacher numbers by 1000. This does not bode well for maintaining subject choice in secondary schools.”

Er … what? Important right now? Surely Ms Brankin isn’t proposing that these heavy pated business-studying students should be relied upon to excise the world from its present difficulties? I thought we’d be out of recession come 2011. I call that fast tracking. And hell mend us if we’ve got to rely on this swelling crop of juveniles to achieve it. Or perhaps Ms Brankin is just talking tosh. Economics isn’t my strong suit – indeed, save for a card or two in more modern microeconomics, the gusty acronym-coining atmosphere of economic consideration is an alien calculation to me. At least post-Adam Smith with a little Friedrich von Hayek on the side. However, philosophy might be able to assist us here also – with its cautions to modesty about how much we know, and how certain we are about what we think we understand.

If increasing numbers of young people are equipped with the rudiments of philosophical consciousness, Scotland is primed to prove a more interesting place. Perhaps the moment has not yet come when we could reopen Edinburgh’s Poker Club of the 1700s – and turn out a new generation of Adam Smiths, David Humes, Joseph Blacks, Adam Fergusons – and scholar-lawyers like Lord Monboddo or Lord Kames. It is a start however. Great oaks from little acorns grow, and all that.