First published by The Herald on 10 May 2017
HAVING served as a judge in both houses of the Court of Session and risen to become one of two Scottish justices on the Supreme Court bench, Lord Reed knows a thing or two about the Scottish and UK court systems.
So when he says that handling appeals in the Scottish court’s Inner House is akin to working the tills at Tesco while the Supreme Court can give cases the “Rolls-Royce treatment”, you take him at his word.
“The big difference between the Inner House and the Supreme Court and the Court of Appeal [in England, Wales and Northern Ireland] and the Supreme Court is mainly to do with the number of cases we deal with,” Lord Reed said.
“The Inner House will deal with many hundreds of cases a year and the Court of Appeal with many thousands. We only take roughly 70 to 75 a year from the whole of the UK.
“We pick the cases that we hear as being the most important ones and we have the time to look at these cases with much more care and trouble than we could when I was sitting as an Inner House judge.
“Being a first-level appeal court is a bit like being on the till at Tesco – you have all these cases constantly coming down the conveyor belt at you and you have to process them as quickly and as well as you can in the time available.
“If you only have 70 a year you can take a lot more trouble with them and make a real effort to give them a Rolls-Royce treatment.”
Not that you have to take Lord Reed at his word. Along with Supreme Court president Lord Neuberger, fellow Scottish justice Lord Hodge and the court’s only female judge, Lady Hale, he will be paying a visit to Scotland next month to let the public at large witness the Supreme Court in action.
This is momentous, Lord Reed said, not just because it will be the first time the court has sat outside London since it was formed as the House of Lords’ successor in 2009, but because it is happening at a time when more people than ever before are taking an interest in how UK justice is administered.
“The Brexit hearing [which looked at whether Parliament had to be given a vote on beginning the process of withdrawing from the UK, on which Lord Reed was one of three dissenters] made people much more interested in the Supreme Court,” he said.
“Because of the degree of coverage of that as well as the very large numbers we had watching it on our live stream we had a lot of feedback and it became very apparent that people had a much better idea of what we do and what’s involved in an appeal and what sort of people we are.
“We are conscious that we are a UK institution for all the parts of the UK. We’ve only sat hitherto in London but we’re keen to be seen in Scotland – and in Wales and Northern Ireland – and to let people come and see us.”
Anyone who does want to visit the court during its Scottish visit, which takes place in Edinburgh from June 12 to 15, will witness three cases that have been appealed from the Court of Session’s Inner House, although the Supreme Court’s decisions in all three will have implications right across the UK.
“The first is an immigration case to do with sham marriages – is it for the Government to show that a marriage is a sham or for the individuals to show that it isn’t,” Lord Reed said. “That is not peculiar to Scots law.
“The second is a planning case, an issue about whether it’s legal for a local authority to require a developer to contribute to a fund managed by the local authority. The relevant planning law is the same across the UK.
“The third is about a prisoner and the question is whether prisons are under a duty to offer rehab courses for prisoners under determinate sentences. The point here could equally arise in London or Belfast and will be of general importance.”
While some have questioned the need for a higher court that serves the whole of the UK – including former First Minister Alex Salmond, who in 2011 accused the Supreme Court of interfering in Scotland’s independent legal system – for Lord Reed that misses the point.
“We are picked for this court supposedly as being outstanding – I’m always sitting here with top-level colleagues,” he said. “In a lower level appeal court that’s true some of the time but not always. I might have found myself [in the Inner House] chairing a court with a sheriff principal or a couple of Outer House judges sitting with me as the administration has to find bodies to man courts to get through the volume of business.
“Here we have consistency. Given the number of cases and the consistency of approach there are advantages of having a second-level domestic court.
“Some of those who are unreceptive [to the Supreme Court being a UK-wide court of final appeal] are the people who aren’t very keen on the idea of having a United Kingdom, but as long as we have that we need to have a court that ensures that laws being passed in all parts of the United Kingdom are in conformity with the UK’s obligations under the European Convention of Human Rights and EU law.”
Or, to put it another way, the Supreme Court ensures that all citizens of the UK are party to the same kind of justice.