SOME laws are beyond interpretation. The passing of time is one of them.
On the 27th of this month Lord Hope of Craighead will have two piles of envelopes to open. One will contain cards congratulating him on his 75th birthday. The content of the others is likely to be more measured in marking his retirement, whether he likes it or not, from 24 years on the bench.
It would be overstating matters to associate Lord Hope with flamboyance but as judges go, his career has been dazzling.
He was appointed not simply to the bench but simultaneously to the top job as Lord President in Scotland in 1989. Even in those days, when the term transparency was usually used to describe a photographic process, this was unusual. It would be impossible today.
After seven years he was appointed to the judicial committee of the House of Lords and despite being among the half dozen who were in greatest disagreement with the 2005 Constitutional Reform Act decision to move the Law Lords out of Westminster, he became convener of the committee charged with making the United Kingdom Supreme Court happen. He has been its Deputy President since it opened for business on 1 October 2009.
“It has been fascinating to be part of the Supreme Court’s development in these past four years, not least experiencing the freedom we have of doing what we want to do in the way that suits our purpose. A lot of the things we did in the House of Lords were simply because that was the way the House had always organised itself and we had to fit in.
“We had absolutely no instructions apart from what the name of the court was to be and that it had to have a seal, which was designed in Edinburgh as it happens, and told to get on with it. It is a very happy place to work in the way we can conduct our business and in engaging with the public far better than we ever could before.”
The Supreme Court building sits on the north side of Parliament Square in London, directly across from the Houses of Parliament. Lord Hope’s office looks out over the Square with Big Ben framed in the window. He acknowledges he’ll miss the office. But the public mostly hears about the Supreme Court when a government minister complains about one of its decisions.
“To some extent that’s a product of the name. Previously we were properly the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. Neither runs off the page very easily. But calling us the Supreme Court caught the public attention in a way that never happened before or I think those who gave us the title intended. For those who like that sort of resonance we are a bulwark against the state. Others [mostly government ministers] find that irritating because they believe we shouldn’t be supreme over what the legislators do.”
There have been strong criticisms of the court from time to time and allegations of unwarranted interference in matters of government. Not least among them were comments about the “London-based court” and directly personal remarks about “Scots Law or Hope’s Law” by First Minister Alex Salmond at the time of the court’s decision in the Cadder case that established the rights of a detained person to legal advice before being interviewed. Did the barbs sting?
“I have never been disturbed by politicians. They have their job to do. We understand their job completely. I’m rooted in Edinburgh and Scotland. I am home there every weekend. Expressions of irritation happen here in London as often, if not more so. That is how life is.
“The First Minister – as he pointed out – is elected and that determines how he does his job. But that is the whole point. Judges are not elected. They are independent. That is how the rule of law is preserved. I may say that politicians may complain as they are entitled to do but I am equally aware they give effect to our decisions.”
With a matter of two weeks to go Lord Hope isn’t a reluctant retiree on his own account but he does regret the effect the current mandatory retirement age of 70 is having at the senior level of the judiciary.
“I’ve had a very good innings with 24 years on the bench. I can’t complain at being told it’s time to go. I am one of the very few judges who has still been able to go on to 75. One of the great misfortunes of recent reforms, I think, is that the retirement age was shifted down to 70 for everybody. It is a sad progress really.
“We think that is a loss to us at the Supreme Court. We are losing five years of experience that is very important. We had one justice appointed here who only had two years before he had to go. I think it has been a mistake but it is difficult for any government to change course now.”
On the other hand there remains a groundswell of frustration that the senior bench remains white, male, getting on a bit and from a restricted social background. Lord Hope sees a paradox – that the equal opportunities procedures designed to remedy that lack of diversity may be inadvertantly prolonging it.
“All the appointments commissions are very anxious to broaden out membership but are frustrated by the comparatively low numbers applying from under-represented groups. It will come.
“It can be done in a different way. In Canada they have somebody who invites people to apply so they can move more quickly. That can’t happen here so when the tide turns it turns very slowly.
“I recall Lord Mackay of Clashfern was very keen to diversify the award of silk to broaden the ranks of QCs so he talent spotted people who might never have applied and was able to make some outstanding appointments. While the new system has many benefits it has disadvantages.”
But with two weeks to go, no pre-retirement classes offered and still hard at it, what will Lord Hope miss?
“I will miss the business of writing judgments. It’s a kind of craft that comes with experience. I write all my judgments in Edinburgh. Writing a very big judgment is like designing a painting on a blank canvas. The beginning of it is very important, how it is phrased and broken up and so on. It is a very special skill which I have very much enjoyed.”
Unlike the other notable decision-making retirees of the summer, Sir Alex Ferguson and Sir Mervyn King, Lord Hope has not (yet) appeared on Desert Island Discs.
Sir Mervyn King last week insisted he would resist the temptation to write a memoir whose subtitle would inevitably be “how I was always right and everybody else was wrong”.
Lord Hope notably declines to make that commitment. “I have always kept a diary, some of it describing rather gripping events and not always self congratulatory.”
So, is there a book?
“I’m not promising anything – but I do have an archive.”