FROM her youth to Westminster and beyond, Lady Clark has been driven to change things for the better, finds John Forsyth.
The Scottish Law Commission is approaching its half-century. That’s barely out of short trousers compared to some of the institutions of the Scottish jurisdiction but, since its creation in 1965, it has established itself as a sotto voce authority in the legal landscape.
It is politically independent and, apparently, endlessly patient as it waits for its best intellectual efforts to bear fruit in new law. It is also restless in looking beyond Scotland to the efforts of other jurisdictions to meet common challenges to the law as a means of protecting liberties and refreshing the kind of contracts between citizens, governments and enterprises within a modern society.
The appointment in June of Lady Clark of Calton as chairman in succession to Lord Drummond Young marks the opening of another chapter of its evolution. She is the first woman to hold the five-year appointment, though has no issue about the title continuing as “chairman”.
Due to speak on Wednesday to the annual conference of the Scottish Legal Action Group (SCOLAG) she will stress that a living legal system has to have a continuing contribution from politicians, the legal profession, charities and pressure groups as necessary participants in the process of law reform. What is unusual about Lady Clark is that she has been most of them at one time or other since her arrival in Dundee to study law.
“I was a member of a whole range of pressure groups and campaigns like Child Poverty Action Group, SCOLAG, The Muir Society, SACRO and civil liberties,” she says. “Not all at the same time I think. They didn’t all agree with one another on everything but they were all pressing for law reform as a route to keeping up with the changes in a rapidly changing society. When I was lecturing in law at Edinburgh University I was always looking wider than just what the law is to what it could be. I did become involved in politics with the Labour Party but I think it’s fair to say I wasn’t expected to be elected.”
As Lynda Clark she took the Edinburgh Pentlands constituency seat from another lawyer, the incumbent, Malcolm Rifkind, in 1997. “I think I was a good constituency MP. I certainly used to write good letters on behalf of constituents to various public bodies setting out the section and clause of whatever legislation I was referring them to.”
On the establishment in 1999 of the Scottish Parliament she became the first holder of the new post of Advocate General. “That gave me the advantage of seeing how the political side of the legislative process worked at first hand. I was a member of the cabinet subcommittee for legislation, which had the advantage of viewing the government’s whole legislative programme – how it fitted together and what was needed to get it through – rather than as I had done previously from the outside, when you tend to look at only one bill at a time or, as an advocate, one problem at a time.”
She continued as Advocate General after stepping down in 2005 from the House of Commons and was appointed in 2006 to the bench. “Of course, as a judge you have some scope to develop the law,” she says. “There is an element of judicial creativity as new variations of facts and circumstances arise that possibly the legislators didn’t think of when they were debating the detail of a bill or when technology is invented that couldn’t have been imagined at the time.”
The commission chairmanship is a post that used to be in the gift of the Lord President. It is now advertised, albeit to a limited field – you have to be a judge in the Court of Session. The successful candidate will still spend 60 per cent of his or her time judging and 40 per cent at the commission.
“I thought it was my perfect job, really. It brought all my interests together. I have always had that passion for working to keep the law up to date. There was an appointment panel and I had to convince them about my interest and demonstrate my qualification across a range of competencies.”
Lady Clark traces some of the passion for her task to the inspiration of Professor Ian Willock, professor of law at the University of Dundee and one of the founders of SCOLAG. “Scots law, the Scottish Legal Action Group and his many students owe a great debt to Professor Willock,” she says. “His vision and theories about the way in which law, morality and social customs interact were ahead of their time. He shaped the thinking and inspired generations of lawyers.”
The law commission draws up its own five-year work programme but from time to time gets an urgent matter referred to it by the Justice Secretary. In the aftermath of the collapse of the World’s End murder trial the commission had, in relatively short order, to report back on judges’ instructions to a jury; reform of double jeopardy law; review of the Moorov Doctrine and similar-fact evidence; and presentation of evidence of bad character and previous convictions to a jury. But not, crucially, overhaul of the law on corroboration in the aftermath of the Cadder decision by the UK Supreme Court.
That was given to a review convened by Lord Carloway. Was the Carloway review a snub to the law commission. “Not at all. It is for ministers to decide how and when they deal with urgent legal matters. I’m quite keen to get things that are urgent to be referred to us but we don’t work in a vacuum. We’re not an academic think tank. Priorities change. I might be quite robust in discussing the additional resources we might need to take on a new task. Even if they don’t give it to us they’d still need to find bodies to do it another way. The choice is entirely theirs.”
Earlier this year the Holyrood Justice Committee called to account the Justice Secretary for the lack of action on a number of commission reports that appeared to be mouldering on the shelves. Lady Clark doesn’t like the word “mouldering”.
“It’s never work wasted. It works its way into the thinking of judges even without legislation. I recall as senior counsel using commission work in assisting the court to find a solution in the Law Hospital case where there was none in the law as it stood. Westminster has developed a route for commission recommendations in uncontroversial areas to be introduced in the House of Lords.
“We are hoping for action this year on the criminal liability in dissolved partnerships, which is a reserved area. We have been discussing with the parliamentary body other ways of getting movement in solid areas of devolved law. My plan is to take an active role in meeting parliamentarians and pressure groups. It’s a question of engaging. We have to persuade parliamentarians this is an area that won’t win them votes on the doorstep but is important to business or people at home.
“I see myself as someone who can bring my own experience and the experience of the law commission to the public, as well as parliamentarians, to work together on keeping our law alert and fit to deal with the challenges it faces.”