Tom O’Malley marks the career of UK Supreme Court Justice Alan Rodger, who died last month:
If there is anyone out there, as we Mayomen like to say, who doubts the universal appeal and importance of Kylie Minogue, let him remember that her distinctions include an honourable mention by the United Kingdom Supreme Court. It happened in HJ and HT v Home Secretary [2010] UKHC 31 where the appellants were gay men, one from Cameroon and the other from Iran, seeking asylum on the ground that they had a well-founded fear of persecution if returned to their native countries. The Court of Appeal had rejected their applications, reasoning that if they behaved discreetly and did not flaunt their sexuality, everything would be grand back home. When this argument was advanced in the Supreme Court, Lord Rodger was having none of it. He held that the rights of gay people are not confined to forming intimate relationships with members of the same sex but also include a broader right to self-expression, saying:
To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. (para 78)
The Supreme Court unanimously allowed the appeals, thereby creating an important precedent in the area of refugee law. (The equation of rugby with heterosexuality may be questionable, but we’ll pass on that for now).
Lord Alan Rodger died on June 26 last at the age of 66, having been struck down, by what transpired to be a brain tumour, while hearing the appeal in Fraser v HM Advocate [2011] UKSC 24. He was a truly remarkable lawyer, and nobody ever combined so well an active commitment to scholarship with a busy life as a practising lawyer and, later, as judge. Having been born and educated in Glasgow, he went to Oxford to pursue postgraduate study under the great David Daube, probably the leading biblical and Roman lawyer of the twentieth century. After being awarded a doctorate in Roman law, Rodger embarked on a promising academic career at Oxford, but soon changed course and decided to qualify as an advocate in Scotland where he quickly rose through the ranks of the legal system. He eventually became Lord President of the Court of Session (the head of the Scottish judiciary) and, in 2001, was appointed to the House of Lords. With his fellow Law Lords, he became a Justice of the new Supreme Court on its establishment in 2009. A video clip of the tributes paid to him in the Supreme Court following his death may be viewed at www.iuscivile.com/people/earlsferry.
During all of this time, he produced a stream of high-quality books and articles, mainly on Roman law, which earned him worldwide respect as a scholar in the field. He held strongly to the philosophy of A.E. Houseman (whom he mentions in another context in HJ and HT) that the pursuit of knowledge should be valued for its own sake and need not be justified on utilitarian grounds. His first major article was published, as it happens, in the Irish Jurist (“The Praetor’s Edict and Carriage by Land in Scots Law” (1968) 3 Ir. Jur. 175). This was during those remarkable early years of the present series of the Irish Jurist when other contributors included H.L.A. Hart, Tony Honoré and the aforementioned David Daube. It was not the first time an Irish law journal attracted distinguished international contributors. Roscoe Pound, the most cited American academic lawyer of the twentieth century, published his first article “Dogs and the Law” in the Irish Law Times and Solicitors Journal in 1897 (though it had previously appeared in The Green Bag, an American law journal).
But Rodger had other academic interests as well, notably in Scottish law and, predictably perhaps, he had a strong interest in Donoghue v Stevenson [1932] A.C. 652. He published a fascinating article on who Mrs Donoghue actually was (“Mrs Donoghue and Alfenus Varus” (1988) 41 Current Legal Problems 1) and on Lord Macmillan’s speech in the case ((1992) 108 Law Quarterly Review 236). The Alfenus Varus in the title of the first article was a Roman jurist of the first century B.C, an unlikely bedfellow for Mrs Donoghue who, by the way, was married to an Irishman. Among his recent articles those most likely to be of general interest are: “The Form and Language of Judicial Opinions” (2002) 118 Law Quarterly Review 226, and “What are Appeal Courts For?” (2004) 10 Otago Law Review 517. In the first he notes that many superior court judgments nowadays are reserved and therefore written at some leisure by the judges who deliver them. This allows for the arguments of counsel and earlier authorities to be treated in some detail, but Rodger cautions against the tendency, long evident in some American jurisdictions, to import academic conventions, such as the extensive use of footnotes, into judgments. He adds the following caustic comment:
One therefore waits with a certain fascinated horror for the moment when judges choose to follow another, nauseating academic habit and begin by thanking their ‘partners’ and ‘kids’ for tolerating their absence during the long hours needed to produce the opinion. Most self-respecting children would, I believe, regard such sentiments as good grounds for leaving home. One can only imagine what Maitland’s wife, Florence Fisher, and his daughters, the formidably named Fredigond and Ermengard, would have thought if he had written such self-indulgent nonsense in a preface.
I concur.
Of his recent judgments, apart from HJ and HT, the most important, at least when measured by its consequences, is Cadder v H.M. Advocate [2010] UKSC 43. There, the Supreme Court decided that it was bound to follow a Grand Chamber decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 E.H.R.R.421 in which it was held that to deprive a person of legal assistance while in police custody violated Art. 6 of the ECHR. Cadder, in turn, held that, notwithstanding the other protections (including a strong corroboration requirement) afforded to suspected and accused persons in Scotland, a person detained by the police had a right of access to a lawyer before being interviewed. The two leading judgments were delivered by Lords Hope and Rodger, both of whom were Scottish and that may explain why the decision was subject to such stinging criticism from some leading political figures in Scotland itself. One interesting feature of the Cadder judgments was their strong approval of the Irish Supreme Court decision in A v Governor of Arbourhill Prison [2006] 4 I.R. 88 on the retrospectivity question. That decision has been subject to much criticism at home though, personally, I always agreed with it. Needless to say, the so-called Salduz effect may also manifest itself one of the days in Ireland as well.
As someone who did an MA in Classics many moons ago (with a minor thesis on Latin love poetry, I’ll have you know), I remain impressed by the way in which Lord Rodger retained his expert grasp of the Latin language; he could apparently converse in it right to the end of his life. Today alas I could barely distinguish between mens rea and women’s lib. Not so with Lord Rodger. He concurred in the judgment of Lord Phillips in Home Secretary v A.F. [2009] UKHL 28 (a prevention of terrorism case) by simply stating: “Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed”. And, of course, for better or worse, he was right. Cadder proved that.
