Two jurisdictions: a shared inheritance
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Ahead of the Scottish independence referendum, the Attorney General reflected on the unique ties between our legal systems.
Thank you for the introduction. It is a great pleasure to be here this evening and I am very grateful to Professor Stephen Tierney and the Edinburgh Centre for Constitutional Law for arranging this event.
The areas of the Centre’s excellent work - constitutional theory, government, devolution and public law - are as prominent now as ever and all the more important with the current debate on independence. I know you have all been very busy!
It is also a great privilege to be here again, in the glorious surroundings of the Playfair library with its neo-classical barrel vaulted ceiling, previously visited by me on a couple of occasions to offer the toast to the ‘immortal memory’ at Burns Night suppers; a location that epitomises your university’s contribution to the Enlightenment, of which our country was at the forefront.
I am afraid I cannot claim any close personal connection with this university but my grandfather was here in the early years of the last century reading medicine. He did not complete the course as he failed to carry out the dissection of a newt properly at the end of his first year.
Family diaries suggest he was also spending far too much time going down to Hawick to see his farming cousins and running wild on the hills. After that he was packed off to Argentina to learn to farm. But he was back in Britain in 1914 and a century ago next February he was killed at Ypres 4 weeks before my father was born.
With the subsequent deaths of both his brothers as a result of the war and my great grandfather’s death in the 1930s, their holiday home at Rockliffe on the Solway was sold and my family’s link by residency with Scotland was ended. The Grieves progressed from Border Reivers (there is a Scott border ballad that includes us), to peaceful Roxburghshire farmers after the Union of the Crowns, to the practise of medicine in Dumfries and to Burma as East India merchants before ending up in London.
Now I mention these things to you because the purpose of this talk was a desire on my part to examine the UK’s legal framework and specifically the vital place of the Scottish legal system in that framework in the way it has helped and is helping contribute to its development - something which as a British politician and lawyer I have come to value and which I think is important in the context of the present debate on independence.
But I would be denying my own emotions if I did not admit that, although I will not be able to vote in the referendum, I cannot regard its outcome with detachment.
Quite simply my father, with an Irish mother and living his entire life in England never, sometimes to my amusement, regarded himself as anything other than a Scot. My parents’ marriage represented the ‘Auld Alliance’ and I, helped by my mother’s mixture of French and Jewish ancestry, have great difficulty viewing myself as an Englishman whatever my titles of office or the constituency I represent might suggest.
So I, personally and passionately, care about the future of Scotland and the future of the United Kingdom of which it has so long formed part. I rarely feel happier than when I can get up here to see my relatives near Dumfries and in St Boswells or when I go walking in the Highlands - most recently a couple of weeks ago for a weekend in Sutherland. I want Scotland to remain part of the United Kingdom.
I believe that our union has created something quite exceptional. We have a shared history and I hope and believe that, we have a shared future. The people of the United Kingdom have a unique bond: we - the people of England, Northern Ireland, Wales and, I believe, Scotland itself - are all beneficiaries from Scotland being part of the union.
The independence referendum, as we’ve heard a lot today, is now only 100 days away. That is why now - more than ever before - seems to me a good time to reflect on what the United Kingdom offers us: the benefits and opportunities it brings to its citizens.
Although I have started from the heart by telling something of how I feel about the union, I now want this evening to try to take an objective look at one particular aspect of it, albeit still from a personal point of view, as a member of the United Kingdom’s legal community. I want to look at the unique ties between our legal systems that, pulling together both civil and common law, have served as an example to countries across the world.
The union and the law; setting the context
In the United Kingdom, we are part of an organic whole; we enjoy the relationships that can only exist within a single state, and not just the economic facts of life like sharing a single jobs market. The relationships - as I will come on to - are about something much deeper.
At the same time, the countries of the United Kingdom are distinct in their identities and cultures. One only has to spend a short while here in Edinburgh to know that there is something different about it to the other great cities of the United Kingdom whether it be Manchester, London, Cardiff or Belfast.
Our union has fostered those unique identities because it has never been about making us all the same. It has never sought to create cultural uniformity, compromise the national identity of its constituent parts or limit distinctive patterns of constitutional development.
Some legal history
The United Kingdom enjoys 3 separate legal jurisdictions: England and Wales, Scotland and Northern Ireland, which each reflect their unique culture and history.
Now this obvious truism is important because it is a feature of the United Kingdom that really does give us strength in numbers.
As with the majority of Europe’s legal systems, Scots law takes much of its shape and character from Roman - or civil - law. The result of this is that Scots law makes use of concepts more common in those continental legal systems that can sometimes seem alien to we English and Welsh lawyers.
One of the interesting aspects of being Attorney is that I have started to understand Scots legal principles far better through my contact with my colleague and friend Jim Wallace, the Advocate General.
It is now over 300 years ago that Article 19 of the Treaty of Union ensured the continuation of Scotland’s legal system as a separate jurisdiction with separate courts within the United Kingdom, preserving its power and traditions. But while the law of Scotland and the law of England and Wales remain separate and distinct, the last 300 years have seen each system adapt to take the best from what the other has to offer.
One system learns from another and we see today in Scotland a healthy and thriving mixed system in the same way as we see in England and Wales a system that has learned much from - and owes much to - its counterpart north of the border.
In Scotland this has involved borrowing elements of common law - in particular the use of precedents from England and Wales. The appointment of Lord Inglis as Lord Justice-Clerk in 1858 is often referred to as the moment when the use of English law cases – as analogies or illustrations – became accepted by the Court of Session.
The use of English cases in the Scots legal system obviously depended on their usefulness to Scottish courts. For example, the fusion of law and equity in the Judicature Acts of 1873 and 1875 brought the English law closer to that of Scots law. That development made the judgments of English and Welsh courts more valuable - more relevant - to Scottish lawyers and the Scottish courts therefore started to make use of them.
But this was always a 2 way street. The 2 systems were looking to each other for ideas. And this is something that we have seen throughout the development of English law. Where English law has been thought to be unsatisfactory, English courts have often looked to Scots law for guidance and inspiration as to the way forwards.
So, although independent, many of the developments in both Scots and English law are due to this sharing of understanding and inspiration by systems that have retained their distinct identities.
As Attorney General and as a constituency MP for an English seat, I can tell you I get a lot of letters extolling the Anglo Saxon heritage of our common law, usually before the letter writer denounces either the EU or the European Convention on Human Rights. But at the risk of disappointing these correspondents I have to refer them to what Lord Neuberger said in a speech earlier this year:
The common law started as feudal law administered in England by the early Norman kings, and it was the same law as that which they administered in Normandy, from where it originated. Indeed as Maitland put it, the law which prevailed in England in the 12th century was in a sense very French. It (was) a law evoked by French-speaking men, many of whom (were) of the French race, many of whom (had only just) begun to think of themselves as Englishmen; in many respects (the common law was) closely similar to that which prevailed in France.
It was the combination of English forms of action with Norman writs which formed the basis of the developing English common law; a system which lasted procedurally until 1852 and lives on substantively today…
And he went on:
But one does not have to go back to the middle ages to see mainland Europe’s influence on the development of the common law. Many of the innovations which served to justify the great Lord Mansfield’s reputation as ‘the founder of commercial law of this country’, were based on mainland European civilian law, the ‘lex mercatoria’
I shall return to Lord Mansfield later.
Thus the overall legal framework in the UK today sees within it the common law and the discipline that is ensured by a system of precedent, and elements of civil law systems informed by Roman law, which are all supported by a system of parliamentary democracy and, perhaps most important of all, shared respect for the rule of law. It is our shared history - our United Kingdom - that has given us this flexibility and strength
We can see this process in action by looking at some of the key cases that mark this development, and are part of the tapestry of the UK’s jurisprudence. It’s difficult in this context not to first mention Donoghue v Stevenson (1932). Probably the most famous of all Scottish cases, there is perhaps nothing I can say about it that you will not know.
But it is worth mentioning.
The case was wonderfully summarised by Clive Coleman of the BBC in 2009. Coleman described the case as one in which a snail gave power to modern consumers and launched a million lawsuits. He said:
This is the story of how our modern law of negligence came about all because of a fizzy drink. And a mollusc from Paisley in Scotland. Although there was never a finding of fact on the case that there actually was a mollusc.
When the unfortunate Mrs Donoghue sat down with her friend in August 1928 to enjoy a refreshing cold drink, little did she know that gastroenteritis, shock and litigation would ensue.
She had no contractual relationship with David Stevenson, manufacturer of what was said to be the snail infested ginger beer in question. But despite this it was held on appeal to the House of Lords from the Court of Session that Mr Stevenson was under a duty to Mrs Donoghue and a breach of that duty could be actionable.
As Coleman says, by creating the modern concept of negligence, the case’s fundamental importance - not only to English law but to common law systems globally and even to civil systems in the Commonwealth - cannot be overstated. It is impossible now to imagine the modern American legal system without Donoghue v Stevenson.
And I always think what is perhaps almost as extraordinary as the judgment itself is that Mrs Donoghue’s solicitor, Mr Walter Leechman, did not send her packing when he heard the facts of her complaint. It is undoubtedly true that many, perhaps most, solicitors at the time would have advised her that she had no claim in law, however sympathetic they may have been to her plight.
But to his credit he did not give up and despite there being no precedent or statutory obligation which directly supported his argument, Mr Leechman seems to have looked to the historical roots of the Scots system to successfully influence the modern legal system, as it turns out, not only in Scotland but in England and Wales as well. In the best civil law traditions, he appealed to a principled approach when considering whether the law held a remedy for Mrs Donoghue.
We have Titchener v British Railways Board (1983) - a tragic case of the dangers of young love. The pursuer, a 15 year old girl, was out walking with her boyfriend who was 16. They took a short cut across a railway line and they were both hit by a train. He was killed and she was seriously injured. But from this tragedy came legal development, although I doubt that was of much comfort to the families.
The House of Lords held, affirming a decision of the Court of Session, that as a trespasser on a railway line, the claimant had deliberately exposed herself to risk and so could not recover damages. As Lord Ross said, a person who takes a chance necessarily consents to take what comes: an important judgement in the law of occupier’s liability.
Finally on my list, I have Burmah Oil Co v Lord Advocate (1964) was another case that started in the Scottish courts, ultimately ending in the House of Lords. 4 Scottish companies were awarded damages as a result of Her Majesty’s Government destroying property in Burma in 1942 in order to deny resources to the advancing Japanese army.
The case is an important one, relating as it does to the extent of prerogative powers over private property; and although it is unfortunate that it is now chiefly famous for being followed by notorious retrospective legislation in the shape of the War Damages Act 1965 - something which I remember as my father was in Parliament at the time and was apoplectic about the decision -this case remains part of our body of case law on the exercise of the Royal Prerogative.
The case and its aftermath have always been very controversial. I was delighted to read this summary on The Student Room website when preparing for this speech:
- some property got trashed by the British army during a war
- British courts awarded compensation
- Parliament changed the law to prevent further claims of a similar nature
- nuff said
Brevity of analysis that I think we should all aspire to.
Getting back on point, there are other longer term trends - and in my view hugely beneficial trends - in our criminal justice system that also owe their origins to Scottish thinking. Liberal doctrines such as diminished responsibility and provocation were developed in the Scottish courts and only later adopted in legislation applying to England and Wales in, dare I say it, the rather harsher environment of the common law.
This tempering of the rigours of a common law system in this way has been part of a humane process of great importance. We see another example of this in the progressive way that Scotland led the development of specialist hearings which not only deal with child offending, but also address issues affecting the welfare of children, which, if not wholly adopted in the system in England and Wales, is often used as a bench mark when we talk about this subject.
And in Scotland, the highly charged debate on the abolition of the requirement for corroboration is, in my view, a sign of a healthy and vibrant legal and political culture where ideas can be taken from one jurisdiction and proposed for another, allowing a debate to take place on whether they offer something that can be adopted in that system or should be rejected.
The UK legal system’s place in the world
But this interrelationship between two different systems has had an impact in influencing another characteristic of the UK’s legal system: its global reach. The UK is at the forefront of the international legal community because our legal systems - and our overall legal framework - are not static. We have a power to grow and develop derived from a legal community that is rooted in differing legal but shared political systems; and that gives us something very special.
Today in the United Kingdom we have an unrivalled mix of judicial expertise in the fields of finance, business and property. Our financial services industry is the world’s largest and most successful and the legal services that underpin that industry have to be world class.
The United Kingdom’s legal sector was worth £20.9 billion or 1.6 % of gross domestic product in 2011. Legal qualifications obtained in the UK are internationally recognised and valued, with around 14,500 international students currently studying law here.
In recognition of that, early next year the United Kingdom is hosting the Global Law Summit in London and the Commonwealth Law Conference in Glasgow.
Glasgow’s bid to host the 19th Commonwealth Law Conference, with the Law Society of Scotland as the principal Scottish host, attracted support from the Scottish and UK Governments, the Faculty of Advocates, Visit Scotland and - crucially in terms of my point here - several other Commonwealth Law Societies. That is also a testament to the Scottish legal system and profession and it is a testament to the legal systems and professions across the whole of the United Kingdom.
Meanwhile, with the support of the Law Societies of England and Wales, Scotland and Northern Ireland as partners, the Global Law summit next year in London is an opportunity to promote UK firms and lawyers and their unrivalled legal experience in order to make the most of the UK’s position as a global leader in legal services. The Scottish legal services market is an essential part of that.
These events, in different locations, are not just about English law and English lawyers or about Scottish law and Scottish lawyers.
They are about the whole of the United Kingdom’s contribution to the international Rule of Law. 2015 is a year in which we have great opportunities to do that with the events surrounding the 800th anniversary of Magna Carta and it is my deep hope that the Union is still intact when we do it so that we may all jointly celebrate and extend those benefits gained beyond our shores.
For it is I believe a profound mistake to allow our legal inheritance to be compartmentalised.
Whether it is the significance of the promises required of the King in the declaration of Arbroath, to be enforced by the people who promised to:
exert themselves at once to drive the King out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our king.
If those promises were not kept; or the key surviving clauses of Magna Carta on Justice, we as citizens of the United Kingdom can value the benefits of both irrespective of where we live. They are knit into our lives.
The strong reputation and excellent international standing of both Scots law and Scottish courts owes much, I believe, to the long-standing relationship of the UK with a wide range of overseas common law jurisdictions. Scots law - as cross-fertilised with common law - has in this way had global reach that few other civil law jurisdictions have had.
Lawyers from north and south of the border have pioneered many areas of law - from global financial services in banking, energy markets or insurance, the development of the public law both within the United Kingdom and in European courts, through to the development of justice in fragile or conflict-riven parts of the globe.
The UK’s international prominence is, in part, attributable to this unparalleled contribution that the legal systems of the United Kingdom have made and continue to make with our combined heft and reach to legal systems across the world.
The cross-fertilisation of jurisprudential ideas and laws has also been advanced by the direction of what is now the Supreme Court of the United Kingdom which is made up of justices from each jurisdiction, bringing with them their particular expertise and experience to the common resolution of critical legal issues.
There is no shortage of examples of prominent and influential Scottish justices of that court and its predecessors the House of Lords and the Privy Council. I could devote whole speeches to each of them. Individuals such as Lords Thankerton and Macmillan - justices who had long and distinguished careers in Scotland before being appointed to the House of Lords.
And Lord Reid, who was appointed directly to the House of Lords from the Bar. And Lord Mackay whose career in the Scottish courts marked the individuality of his reforming approach as Lord Chancellor of Great Britain
Lord Keith of Kinkel, whose career as a Law Lord spanned nearly 20 years and who authored the main judgment in R v R, determining a man could be convicted for raping his wife - dare I say it, another first class input of Scottish jurisprudence revolutionising our approach to issues of consent.
Lord Hope; the first Deputy President and most recent justice to retire from the Supreme Court, having first served as the head of Scotland’s judiciary in the posts of Lord President of the Court of Session and Lord Justice General, who famously wrote all of his judgments delivered in London here in Edinburgh.
Or Lord Rodger, who sadly died in 2011. He was a celebrated Roman law scholar and Scots lawyer by training. Lord Rodger, crossed the judicial and governmental divide, serving as Solicitor General for Scotland and as Lord Advocate before taking up his first judicial appointment.
And in focussing on the last century I can’t leave out the 18th and Lord Mansfield whose portrait as an English law officer hangs on the staircase to my Whitehall office. Another Scottish born lawyer, he interestingly, because he chose to do so, practised at the English bar in English and Scottish cases and he was also a member of the government of the United Kingdom as Solicitor General and Attorney General before becoming Lord Chief Justice and Speaker of the House of Lords.
His important legal contributions included deciding in Somerset v Stewart that slavery is unlawful in England. And in looking to the ‘lex mercatoria’¸ he brought civil law traditions into the law of England and Wales, and his story illustrates neatly the benefits which the Union conferred and the theme of my speech today. Indeed it may just be that the ‘lex mercatoria’ influenced his judgment in Somerset.
And there I must stop before I get carried away. Time does not permit me to undertake a full survey of the long and distinguished role of Scottish lawyers in influencing the development of the law in the UK. Even if I tried, I anticipate that I would divide the room by giving prominence to one individual at the expense of somebody else’s Scottish legal hero.
But my point is this. In our United Kingdom, the great men and women of our distinctive legal jurisdictions belong to us all. The ties between our legal systems are all about people. And the Supreme Court is the ultimate example of that, a point made by Lord Hope in a House of Lords speech earlier this year on the implications of Scottish independence examining the strength that the whole of the United Kingdom draws from its distinct legal jurisdictions and what he saw as the potential consequences of breaking what we have now:
The process of cross-fertilisation of ideas across the border will cease. The tendency to prefer principle to precedent, which is one of the characteristics of the Scottish approach, is also at risk of being lost. So, too, will be the breadth of experience which has always marked Scots judges out in comparison with the specialists from England.
He went on:
Of course, the loss of the 2 Scots justices, if and when this has to happen, can be made good, but the breadth of vision which comes from having what is at present a court for the entire United Kingdom and draws its ideas from a broad canvas, cannot.
In a recent comment piece in Scotland on Sunday, Michael Sheridan, secretary of the Scottish Law Agents Society, made a similarly eloquent and compelling case for the value of the Supreme Court.
It brings together the best legal minds from across the United Kingdom. And that is to the benefit of every single person in the UK, north or south.
I also want to say something this evening about the day to day relationships that exist between the legal jurisdictions in the UK. These are about making everything that I have talked about so far practical reality at an administrative level and this system in my experience works well.
At the heart of the UK government’s legal business we have a working model of how distinct legal systems can operate seamlessly within a political union. The Solicitor General and I work very closely with the Advocate General for Scotland, Lord Wallace of Tankerness; together we form the UK Law Officers team.
This excellent arrangement ensures that all relevant aspects of law across our jurisdictions are brought together on any issue of government business which calls for their consideration. I really can’t tell you how much I value this partnership.
It is a partnership which would almost certainly have prevented today the War Damages Act overturning the Burmah Oil judgment because of the role that Jim and I (and which any others in our roles would) play together in relation to legislation and its propriety.
And it is a partnership which ensures that Scottish legal principles are embedded within UK decision making. Without giving away state secrets to you, I can think of no occasion when the need to combine our approach has caused either of us difficulties either politically or jurisprudentially.
Throughout my time in office, I have also enjoyed excellent working relationships with the Lord Advocate Frank Mulholland and I regularly meet with him to discuss a range of issues of shared interest. Some of those issues will be fairly obvious because our roles have much in common: we are able to share thoughts and experiences about ways of working and the challenges - and rewards - that we face.
But it goes beyond that: we are able to talk about specific cases that either have cross-border jurisdictional impacts or, although not cross-border, have impacts in both Scotland and England and Wales. Where it is in our gift to do so, we are able to offer support to each other in resolving those issues; and even where it is not in our gift, we mutually benefit from being able to speak to one another openly and frankly whilst each respecting the autonomy of the other.
This is a relationship I value very highly. It is not written down or, for the very large part, about operating formal inter-governmental protocols. Nor is it about transacting business. It is a relationship that is organic and it works because of the mutual respect, trust and fundamental common bond the union creates between the offices of Attorney General and Lord Advocate.
It was this relationship that allowed Elish Angiolini and my predecessor Baroness Scotland to agree simply by discussion between themselves and announce a protocol on the prosecution of cross-border terrorist cases, when they delivered the keynote addresses at the Law Society of Scotland’s 60th anniversary conference here in Edinburgh in 2009. And, in the criminal justice sphere, this is all reflected in the way that day to day operational matters are resolved between police forces in Scotland and those in England and Wales.
And in the way that our prosecutors work together to ensure that all of the necessary mechanisms are in place to ensure the prosecution of offences across the United Kingdom. And in the way that cross border bodies such as our intelligence agencies, the National Crime Agency, Her Majesty’s Revenue and Customs and the National Cyber Security Programme all protect the interests of the United Kingdom, regardless of where they are operating.
These are the structures and arrangements which make the United Kingdom stronger and more resilient and which reflect our common interest as a nation. These are the relationships that are created, fostered and maintained within our United Kingdom.
I am conscious in setting out in this talk the close interrelationship of our legal development and what I perceive as its benefits, that some may argue that there is no reason why these links could not continue if Scotland leaves the United Kingdom. After all the citing of cases from independent Commonwealth jurisdictions or indeed the USA is a normal occurrence in our courts. Mr Salmond talks of a social union to perpetuate the interconnections of our society.
And as I know, having devoted part of my time in politics to trying to help develop and deepen British-Irish relations both political and legal, a shared history can be a good plank on which to build understanding and cooperation between separate sovereignties.
But pleased as I am to help facilitate such closer working I also know that such relationships are qualitatively entirely different from what we in the United Kingdom do for each other at present.
Our United Kingdom is not just an exercise in cooperation. It starts with the principle that the interest and wellbeing, good governance rights and liberties of British citizens, whatever their backgrounds and wherever they live - be that Wick, Glasgow or Dumfries, Cardiff, Liverpool or Belfast - are as important to me as a British politician and Minister as those of my own constituents and should be for each one of us sharing the same polity.
I expect and interestingly get the same from my Scottish counterparts.
It matters not that there may be different ways in which this is provided in each place if the will and intention exists to make that unity work. Quite apart from matters decided in common in the UK Parliament, the closeness of the existing relationship is, I think quite startlingly, illustrated by the 140 Sewel Motions agreed since 1999 - mechanisms used when devolved interests coincide with those elsewhere in the UK and by our sharing in our Supreme Court of a common space where our legal principles and our society may be developed.
In a rapidly changing world with many difficult challenges facing us, the form of common working that we enjoy in the United Kingdom is I believe a great strength. We are a society where freedom is and has for centuries been underpinned by the rule of law - our common heritage. We have achieved a political and social community whilst preserving and celebrating the distinctive characteristics of the countries and people that together form our country.
The United Kingdom is vibrant and made up of a multiplicity of perspectives which are informed by a wide array of different and ever changing backgrounds. That gives us the foundations for the innovation, adaptability, stability and resilience that make us unique in the world. It started with our Union in the 18th century.
And we can see it working today as we have proved far more successful than most in integrating newcomers into our political community. It offers all of us great grounds for optimism for a future for ourselves and our children that can adapt to globalisation whilst preserving and enhancing freedom, democracy and quiet governance.
Thus, this debate - the independence or, as I would prefer, this interdependence debate - goes to the very heart of our United Kingdom and everything that is good about it. The outcome affects all our futures and freedoms.
I am delighted that this will be one of the best informed debates on the nature and existence of national identity the world has probably ever seen. It is a debate itself underpinned by the rule of law, with its parameters agreed between two Parliaments. It could, I suspect, not take place in the same open and robust way virtually anywhere else. That in itself is a tribute to our United Kingdom.
And that is why I want us to stay together, to work together and to carry on offering and getting the best to and from each other.