Guardian Friday, August 16, 2002
Is an elite secret society undermining the impartiality of Scottish
The Skye bridge club
For several years the people of Skye
have had the sense that they were being treated unjustly. In
1989, the government decided that the bridge between their island
and the mainland would be funded not publicly but privately.
The developers would reclaim their costs with a road toll.
The toll turned out to be the highest
per mile of road in the world. The private
consortium invested just £500,000, from which it is due to reap
some £88m from the people of Skye.
Many of the islanders refused to pay.
They argued that the paperwork legalising the road tolls had never
been published. Scotland's foremost legal expert, Professor
Robert Black, described the government's demand that the tolls be
paid as "fatally flawed".
The fatal flaw, however, did not stop
the prosecution of 496 of the islanders. Some of them appealed,
but their arguments were dismissed by Scotland's law lords.
Many observers, including some very eminent lawyers, criticised the
law lords' decisions. Some of the islanders
began to question the impartiality of the courts.
Now, research by the tireless campaigner
Robbie the Pict, published here for the first time, reveals that many
of the key decision-makers, in and out of the courts, belong to a
society which keeps its membership secret.
The Speculative Society LINK,
which is housed in the University of Edinburgh, appears to have arisen
from a masonic guild in the 18th century LINK.
Three hundred years ago, the "operative" masons from the
building trade began to admit "speculative" members, who
were people of high standing from outside the trade. LINK
The Edinburgh Speculative Society
later split from the operative masons, to concentrate on cementing
the bonds between powerful people. Unlike freemasons, the "knights"
of the society, who are all male and all white, do not swear an oath
of loyalty to each other.
Their meetings appear to concentrate
on dining and debate. The group describes itself as a "sodality",
or brotherhood, and its motto urges the "brethren... in unity
to dwell". That is about the limit of what nonmembers can
discover. Even the University of Edinburgh, whose principal
is an honorary member LINK,
claims never to have heard of it.
But the secret membership lists obtained
by the Pict show that many of the most powerful people in Scotland
have received either "extraordinary privileges" or "honorary
privileges" from the society. Among them are the Duke of
Edinburgh (membership number 1662 LINK),
Lord Mackay of Clashfern, the former British lord chancellor (no 1676
many of Scotland's leading company directors, several top surgeons,
journalists and academics, plenty of sheriffs and QCs and at least
18 Scottish law lords.
The Pict alleges that the law lords'
membership of the society throws the impartiality of many of the key
Skye bridge cases into serious doubt. Over the past six years,
Scottish law lords have presided over 14 hearings involving the bridge
protesters. In every case they have ruled against the protesters
and in favour of the crown and the toll collectors.
In 12 of these hearings, one or more
of the law lords presiding over them and the government officials
or company directors whose arguments they have assessed have, the
secret lists reveal, been members of the Speculative Society.
In Anderson v Hingston 1996, for example, Lords Morison LINK
and Weir LINK,
who are listed as enjoying the "extraordinary privileges"
of the secret brotherhood, sat in judgment on a case concerning the
legality of a decision made by the Minister of Transport, Lord James
Douglas-Hamilton. Lord Douglas-Hamilton is also a member of the society
(no 1772) LINK.
Appeals by the protesters concerning
Lord Douglas-Hamilton's decisions were later examined by Lords Cowie
Drummond Young LINK,
Nimmo Smith LINK,
Cameron of Lochbroom LINK
and the lord justice-general Lord Cullen (no 1702 LINK),
all of whom belong to the Speculative Society. In Robbie the
Pict v Miller Civil Engineering and the Secretary of State, 1998,
the government was represented by a QC called Duncan Menzies (now
Lord Menzies), another knight of the Speculative Society LINK.
The case was heard by his fellow knights Lords Cameron and Johnston.
In January this year, Lord Drummond
Young prevented an appeal brought by Robbie the Pict against a judgment
of Lord Johnston's. In May, Lord MacLean helped to judge Robbie
the Pict's petition against a decision made by Lord Cullen.
All four law lords are members of the brotherhood. The 496 Skye
defendants were all refused legal aid. There may have been good grounds
for refusal, but if so these were not explained. Standing counsel
to the legal aid board from 1991-98 was Colin McEachran QC, also a
member of the society LINK.
The body with overall responsibility
for making the Skye bridge project happen was the Scottish Office's
development department. One of its senior officials was Niall
Campbell, another knight of the society LINK.
He went on to run the Scottish Office's justice department.
The tolls on the bridge are collected by the Skye Bridge Company.
Its chairman was Sir Iain Noble. He too belongs to the society
Since July 1999, Scottish law has
been, in principle, legally compliant with the European convention
on human rights. Article six of the convention determines that
"everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal". "Independent
and impartial" means, in this case, above any reasonable public
suspicion of influence or special interest. Robbie the Pict
suggests that the law lords' adjudication of cases involving other
members of the Speculative Society appears to offend both the letter
and the spirit of the law. Interestingly, an essay published
in 1968 in the official history of the Speculative Society by Sir
Derrick Dunlop (a former president of the society) observes that "we
all know... that the judicature is icy in its impartiality, which
is one of the chief glories of this country, but perhaps this impartiality
would be strained to breaking point where the Speculative is concerned".
Whether this demonstrates partiality
or not is impossible to say. Not every judge in the Skye bridge
cases is a member of the society. There is no evidence that
anyone has exploited his links with other members of the society.
But when Lord Hoffman's membership of Amnesty International was revealed,
soon after he and his fellow law lords decided that General Augusto
Pinochet should be extradited to Spain, the original judgment had
to be scrapped and a retrial ordered. Amnesty International
had no direct connection with the prosecution. In this case
there is a direct connection between the law lords and the people
whose decisions they were assessing. Their undeclared membership
of the society surely necessitates a retrial of all the cases involving
But that is not the end of the matter.
These law lords have, between them, presided over thousands of other
hearings. The Pict's findings raise questions about the entire
system of Scottish law, and should also cause those of us living south
of the border to take a closer look at our own system. Public
confidence in the law requires that the judiciary be above suspicion.
This story suggests that we cannot be assured that this is so.
Transcript taken from The Guardian
Friday August 16, 2002