Lord Rodger of Earlsferry: Member of the UK Supreme Court hailed as one of Britain's finest legal minds

Click to follow
The Independent Online

Alan Rodger was one of the original 12 members of the UK Supreme Court and had recently been caught up in a row over the Court's authority in Scottish criminal affairs. Widely regarded as one of the finest legal minds of his generation, Rodger, an Oxford academic and former Lord Advocate, contributed substantially to the development of Scots law.

Lord Hamilton, Lord President and Lord Justice General of Scotland said of Rodger, "His judgments, whether on civil or on criminal matters, were always incisive. He also brought to his work a real interest in other judicial systems." Held in high regard as an international jurist, Rodger was believed to be the only British law officer to have taken part in proceedings before four of the most prestigious courts: the International Court of Justice, the European Court of Justice, the European Court of Human Rights and the European Commission of Human Rights.

Rodger, one of two Scottish judges on the Supreme Court, had beencriticised along with the Supreme Court by Alex Salmond, the leader of the Scottish National Party. Salmond launched a scathing attack on the"foreign" Westminster-based court and its judges and accused it of "intervening aggressively" in Scotland's independent judicial system after it ruled twice that the Scottish system had breached the European Convention on Human Rights.

Rodger was at the forefront in what has proved to be the greatest challenge yet to face the courts, not only in Scotland but in the United Kingdom as a whole: the impact of the 1998 Human Rights Act, coupled with the Scotland Act of the same year. While some of his analyses and conclusions may be challenged by others on legal and political grounds, there can be no doubt of the rigour and vigour which he and others, brought to what turned out to be an enormous and far-reaching task.

The two cases pertained to the appeal cases of Fraser and Cadder. Nat Fraser, found guilty of the murder of his wife by a Scottish court in 1998, successfully appealed his life sentence in the Supreme Court on the grounds that Scottish courts had breached his human rights, as significant evidence had been withheld at his trial; Peter Cadder, whose assault conviction was based on evidence gained before he spoke to his lawyer, also argued that his human rights had been violated. The Supreme Court ruled that Scottish courts had breached the human rights of thousands of suspects by allowing police to question them for six hours without the presence of a defence lawyer. It was these rulings which sparked Salmond's angry attack.

Born in Glasgow in 1944, Alan Ferguson Rodger was the son of Thomas Ferguson, a Glasgow University academic, and his wife Jean. He was educated at Kelvinside Academy, an independent school in Glasgow, and read law at Glasgow University, where he obtained a double first in Scots and Civil Law. He then moved to Oxford to undertake a DPhil in Roman Law under the tutelage of the celebrated Professor David Daube, a "brilliant man" with whom tutorials "could only be likened to hand-to-hand combat". Daube became the most significant intellectual influence on Rodger's thinking about, and approach to, law in general. His DPhil thesis, published in 1972 as Owners and Neighbours in Roman Law, led first to a Junior Research Fellowship at Balliol and then to a Fellowship at New College, Oxford from 1970-72.

In 1974, Rodger was called to the Scottish Bar and within two yearsbecame Clerk of Faculty, a positionhe held for three years. He was appointed Queen's Counsel and also anAdvocate Depute (an advocate with a right of audience in the High Court) in 1985 and then elevated successivelyto Solicitor General for Scotland in 1989 and Lord Advocate in 1992 underthe Conservative government; in the same year he joined the Privy Council and was given a life peerage, as Lord Rodger of Earlsferry, a district of North East Fife. As Scotland's chief legal officer he presided over a number of important changes, including the introduction of the right of the prosecution to appeal against sentences it considered too soft.

In 1995, Rodger was appointeda judge at the highest civil court inScotland, the Court of Session, and was Scotland's highest judge, Lord President of the Court of Session and Lord Justice General in the High Court of Scotland, from 1996 to 2001; he replaced Lord Hope of Craighead.

As Lord Justice General, Rodger believed it important to write clear and understandable judgments, utilising short sentences – "for the simple reason that you can hide in long sentences". He spent much time drafting and revising, most notably on the Piper Alpha case and Drury v Her Majesty's Advocate in 2001, which related to the definition of murder in Scotland.

In 2001, Rodger became a Lord of Appeal in Ordinary (Law Lord) in 2001 and in October 2009 became one of two Scottish judges appointed to the newly formed UK Supreme Court, alongside Lord Hope, when the judicial functions of the House of Lords were transferred to the new Court.

In 2010, as a member of the Supreme Court, Rodger hit the headlines when he presided over an appeal by two gay men from Cameroon and Iran against the Home Office, which had refused their claim to asylum on the basis that they could hide their sexuality, and therefore avoid detection and persecution in their home lands, by behaving discreetly.

In upholding the men's claim, Rodger said that gay asylum seekers should have the same rights to display their sexuality as straight men. He observed, "Just as heterosexuals are free to play rugby, drink beer and talk aboutgirls with their mates, so male homosexuals are free to enjoy themselves going to Kylie concerts and drinking exotically coloured cocktails" without fear of persecution. Three Supreme Court judges ruled that the Home Office was in breach of the UN Convention on Refugees.

Rodger's academic achievements led to his election as a Fellow of the British Academy in 1991 and as a Fellow of the Royal Society of Edinburgh in 1992. Rodger, who was unmarried, received numerous awards and honorary degrees. From 2008 he was High Steward of the University of Oxford and Visitor of Balliol (in succession to the late Lord Bingham) in late 2010. In his free time he enjoyed writing, including Gloag and Henderson's Introduction to the Law of Scotland (joint editor, 10th edition, 1995), Mapping the Law (2006) and The Courts, the Church and the Constitution (2008). Known for his dry humour and wit, Rodger was often called upon as an after-dinner speaker.

Lord Rodger of Earlsferry, who never married, died after suffering for a short time with a brain tumour. He is survived by a brother and sister.

Martin Childs

Alan Ferguson Rodger, lawyer: born Glasgow 18 September 1944; a Lord of Appeal in Ordinary 2001–09; a Justice of the Supreme Court of the United Kingdom 2009-; cr. 1992 Life Peer of Earlsferry in the District of North East Fife; died 26 June 2011.

Comments