‘Public positives in Supreme Court shake-up’

Lord Hodge is one of three appointments to the court that were announced last week, along with English judges Lord Justice Toulson and Lord Justice Hughes. Their appointment was met by widespread comment, mostly critical, from the legal profession and politicians that the replacement of three white men by three others fell short of the Supreme Court’s public commitment to inclusivity.

Lady Hale has been the only woman on the court’s bench. Last month she unleashed a blistering critique of the culture of judicial appointments in her lecture on Equality in the Judiciary.

The next scheduled departure from the Supreme Court will be Lord Toulson’s, as he reaches the mandatory retirement age of 75 in 2016. On the age criterion alone there may be no vacancy for a Scottish judge until 2026, though it has been suggested that there is no obstacle to the incumbent Lord Hodge or Lord Reed returning, with new perspectives, to the bench in Scotland before then.

Another development concerning the Supreme Court is the implementation of the amendments to the Scotland Act 2012. These set out to draw clearer demarcation lines between Edinburgh and London in the wake of the bitter words between the two when the Cadder judgment in 2010 used the European Convention on Human Rights to challenge Scottish criminal law.

On 22 April the rules for  examining the compatibility of any aspect of a criminal trial with the ECHR, or with EU law, bring into effect new procedures and create a time limit of 28 days for making an application to the Supreme Court from the date of determination.

Human rights solicitor advocate John Scott QC said: “The time limit means lawyers will have to focus more quickly on whether there is an ECHR or EU issue. The changes shift the focus from acts of the Lord Advocate to acts of a “public authority” that are incompatible with ECHR or EU rights. This may widen the scope of cases heard at the Supreme Court. The changes should clarify the exclusive aspects of the High Court’s jurisdiction in applying the criminal law in Scotland. The Supreme Court will determine the compatibility issue and leave the High Court to apply its determination. The changes come at a time of increasing awareness of the “general public importance” test for cases to be sent to, or accepted by, the Supreme Court. This should focus arguments and may help to explain such appeals to the public.”

The act requires the UK government to carry out a review in three years into how “compatibility” issues have been dealt with.