Lord Hamilton faces up to life beyond court

Scotland’s top judge retires this week. So what are his legacy, and his plans, asks John Forsyth

GLEE might be pitching it too high but there was a distinct air of judicial affability as Arthur Hamilton entered his last week as Lord Justice General and Lord President of the Court of Session. Because his 70th birthday, the compulsory retirement age for judges, is on Sunday, his last day in office will already be behind him.

As he looks back on his six and a half years as “Scotland’s top judge” Lord Hamilton insists characteristically that it is for others, not him, to assess how well he carried out his stewardship.

Farmers invariably say their overarching obligation is to pass on the land they hold in trust to the next generation in better condition than they received it. There is no doubt that the judicial landscape Lord Hamilton is passing on is dramatically different from the one he found in 2005.

The Judiciary and Courts (Scotland) Act 2008 brought all the judges in Scotland under the Lord President’s umbrella, as well as the bricks, mortar and, often, Victorian crenellated sandstone and gloomy wood-panelled courtrooms throughout Scotland in which they dispense justice.

The Lord President became responsible to the Scottish Parliament for drawing up a budget for everything from paper clips to roof repairs, as well as for the conduct, discipline and welfare of judges and their support staff.

“I think it has worked rather well, and significantly better than the previous arrangement,” he said.

“My personal preference is leadership with consensus and I take some pleasure from the way meetings of our board have brought judges into the field of administration, and it has brought civil servants into the world of judges. Previously there were decisions that each was making without consulting or fully understanding the concerns of the other.”

Lord Hamilton summarises those delicately as “awkward relationship difficulties”. Asked for an example of how it works better now he cites the work that is under way on reviewing “the fitness of courts and court buildings for the 21st century”. Some worried members of the legal profession and public refer to it as “court closures”.

Lord Hamilton says there is a responsibility to look at the way things should move forward. “Regrettably there will be entrenched views among some respected people, including members of the judiciary, but the advantage of being able to approach the matter with the benefit of both judicial and administrative input is that the discussion is conducted within the principles of access to justice.

“The context of Article 6 of the European Convention on Human Rights, the right to a fair hearing, is in at the beginning rather than having to be added later.

“So is the need for justice to be delivered locally. There will be debate on what precisely is meant by ‘local’ but we have to ask whether it is efficient and cost effective for the High Court to sit in so many small towns. It may be that the new summary sheriffs proposed by Lord Gill in his reform of civil justice will expect to sit more locally than the full sheriffs.

“One other thing that has to be borne in mind is the advances in technology where more procedures can be done from ‘home’ – lodging a writ electronically, for example, rather than having to turn up or send someone to the court with payment in hand.”

Lord Gill was revealed last Friday as successor to Lord Hamilton and will be in the remarkable position of overseeing from the judicial office the implementation of his own proposed reforms.

Early in Lord Hamilton’s tenure the collapse of the World’s End murder trial led to a public stand-off with the Lord Advocate, Eilish Angiolini, when he took exception to her implied criticism of the judge for pulling the plugs, rather than accepting the shortcomings of the prosecution. Did he think he had let off the Lord Advocate too easily?

“I think she ‘noted’ what I said. I don’t think the matter has arisen again. But I thought it was important to speak up. As head of the judiciary I also have a protective role, not just for individual judges who cannot speak back, but for the judiciary as a whole.

“Just as I am responsible for judicial conduct, there is now a published and transparent procedure for anyone to make a formal complaint if there is concern about the appropriateness of a judge’s behaviour. It is important for my judicial colleagues that they see me primarily as a judge, not primarily as an administrator.”

Does he regret telling the Holyrood Justice Committee in November that judges aren’t paid enough? The Lord President’s salary has been set for some time at £214,165.

“No. I don’t regret that. We have ongoing issues not just with the justice committee but with the UK government about pensions. I think it is very important that those in charge of pay realise it is important to ensure the right sort of people come forward to apply, especially for senior judicial posts. There was an occasion recently when the judicial appointments board declined to appoint any of the candidates and that is bound to be a worry, whether it is because good candidates are put off applying by the salary or for other reasons. It will affect us all in time.”

Demitting office does give an opportunity for personal reflection. Have their been regrets? “What I remember with less fondness is the problems I had at the beginning of my presidency. I launched into it without really being prepared for the job.

“I also found myself launched into a pretty difficult constitutional case as the first piece of business I had to do and I found it difficult to cope with. So I had a period of months that were a particularly unhappy time but I got over that and have enjoyed the job more as time has gone on.”

With that experience, has he had the opportunity to organise a better handover to his successor, Lord Gill?

“We have had two or three meetings at which we have been able to discuss work currently under way and also look ahead a little to see what may come over the horizon, but I am reassured that the structure that is now in place will be far more supportive to the new incumbent than it was for me or my predecessors.”

And when he gives up the key to the newly refurbished Lord President’s office on Friday, what long-postponed ambitions will he have a chance to pursue?

“I am on the supplementary bench for the UK Supreme Court so may be called there from time to time. But I will be taking a holiday. And I have been taking piano lessons recently so there will be time to practise. The faster pieces are still rather slow when I play them,” he said.

Lord Hamilton confesses that his practice preferences have been Beethoven sonatas. Sonata Number 26 is nicknamed Les Adieux. Farewells, but not goodbye.