"One lifetime is not enough"
Having retired from the University of Edinburgh, George Gretton tells of his passion for the law, his belief in the Scottish system and his admiration for those who work with real-life legal problems
A video to accompany this article can be viewed at this link.
With what would you associate the name of George Gretton? For many solicitors, he and Kenneth Reid make up the double act that has guided them in Scots property law for the past three decades, through both published work and practical seminars, spiced with humour as well as learning. But that picture only partially reflects a formidable intellect who yet connects with legal practice in a way that not many full-time academics do.
Having retired after 35 years’ teaching at the University of Edinburgh, 22 of them as Lord President Reid Professor of Law (he now has the title Emeritus Professor), Gretton can look back on a career in which his work has helped bring order to rather more than just the field of property law, though that has been a big enough task.
Interestingly, the law was not even Gretton’s first field of study (nor was it Kenneth Reid’s). They first met on the graduate LLB course in Edinburgh, Gretton’s previous degree being in philosophy and Reid’s in history. But for Gretton at least, “As soon as I started studying law in 1976 I fell in love with it; I was absolutely gripped.” His genial smile masking a permanently inquiring mind, he suggests his earlier degree instilled “a slightly disrespectful attitude to legal texts, if one can possibly put it that way”.
He graduated, qualified with Ketchen & Stevens and spent a further year in practice there before returning to Old College. “I wasn’t absolutely committed to an academic career from the outset, because I also enjoy practice a great deal. But one thing I found in practice was that you need a thick skin. Things do go wrong, and I remember the first time a client shouted at me, for a fairly minor mistake but it was a mistake. I realised I probably didn’t have a thick enough skin for legal practice.”
He must have developed some level of protection, however. He and Reid did rather burst on the scene at a time when Scottish legal writing was still emerging from some fairly inactive decades, and ruffled a few feathers in the process. The preface to the newly published collection of essays in Gretton’s honour recalls the judicial retort of Lord Ross – “two individuals whom I understand to be academic lawyers” – to one early critique of a decision.
“I did annoy people sometimes and I did step over the mark once or twice, and I regret having done so,” Gretton concedes.
He was hardly put off his stride. Readers who have known the Journal since those days in the 1980s will recall his erudite output not only in property law, but subjects including commercial law, diligence, bankruptcy, succession and trusts.
Call a plumber
Gretton’s career has coincided with a transformation in Scots property law, assisted by the arrival of the Scottish Parliament and its series of Acts which finally put paid to the feudal system. Asked about Holyrood’s influence, Gretton gives it good marks, qualified by its patchy record in dealing with the less glamorous legal topics.
“A great deal of law is a bit like what I call plumbing. A lot of law is very important. We tend to take it for granted. People tend not to think about it while it’s working properly; sometimes people don’t even realise it exists. But when it goes wrong, it’s like plumbing going wrong: then people sit up and say, this needs fixed. And like plumbing it needs maintenance.”
Scholars can try to “knock the law into shape”, he adds, but it also needs legislation. “In 2017 the number of Acts passed by the Scottish Parliament has been five.” (There has since been a sixth, on wild animals in travelling circuses, which Gretton would doubtless regard as glamour rather than plumbing.) “And when I hear politicians say we can’t do this bit of law reform because there’s no parliamentary time, I really have no patience with that.”
Gretton’s wish list for action includes the Scottish Law Commission’s reports on the law of trusts: “It’s not glamorous, but it is classic maintenance work that needs to be done, and so much of our law of trusts has not been updated since 1921”; and on prescription and title to moveables: “This is something very important to the art world, museum world, galleries, collectors, auction houses. Our law is just a mess, and nothing has been done.”
No one could accuse Gretton of being unwilling to tackle legal plumbing jobs. His first book (which went to a second edition) tackled the obscure fields of inhibition and adjudication; a subsequent monograph focused on searches; co-authored works have covered property, trusts and succession as well as his and Reid’s longrunning annual conveyancing updates. Numerous published articles and contributed chapters have covered a range of Scots and comparative legal topics.
The 2012 Act: it was needed
One project with which he was closely associated was the Scottish Law Commission report that led to the Land Registration (Scotland) Act 2012 – not the average property practitioner’s favourite statute. Was it wise, I venture to ask, to meddle, whatever the theoretical justification, with a system that as far as they were concerned was working well?
The question provokes a laugh. “Thank you for that one!” But also a clarification. “The first thing I would say is that some of the changes that came in from December 2014 were not actually in the legislation itself. Registers of Scotland decided to introduce changes off their own bat which were nothing really to do with the legislation, and I think it’s some of those that the profession has not been happy with.” That admittedly does not apply to the one-shot rule; however, “To take a very simple example, the application form is not a very user-friendly thing; that was not in the legislation, nor was the ‘tell me, don’t show me’ principle. That was initiated by the Keeper, and has led to some people saying that the Land Register is now the Sasine Register plus map. I don’t think that’s true even with that principle, but the principle is not in the legislation.”
He continues: “Going back to your question, I don’t think everybody was happy with the [pre-2012] legislation. It got criticised by the judges; there were a lot of complaints by the public. Registers of Scotland themselves had become very unhappy about it. In the early years Registers were defensive; they were very closely associated with the 1979 Act, but as time went on they increasingly saw quite serious faults in the legislation and had come to seek a thoroughgoing reform.”
Pointing to advance notices as a popular feature of the Act, he comments: “Their design took a lot of work, and I think they’ve been successful. So although there’s been grumbling, I think the change has been pretty much to the good.
“I’ve seen so many complaints that are not actually about the legislation; they’re about what Registers has been doing or not doing. I’m saying this slightly reluctantly, because Registers of course is never very popular with the profession. I think, however, we are quite lucky to have Registers of Scotland by international standards.
“I think Registers did make one or two mistakes at that transition. But I want to say that in the context that Registers has been and is rather a good land registration organisation. I would like to ask people where they think in the world it is done better. That’s a serious question.”
Does he believe Registers can meet its ministerially imposed target of completing the Land Register by 2024? No, is the simple answer, because even with Keeper-induced registration, so many titles will have difficult boundary issues, especially in more rural areas. “A very large number of titles will be done, and by 2024 completion of the Land Register will be up to a fairly high level, but I’m not going to predict what proportion. And completion will be very beneficial.”
Scots law in the modern world
Against the positive impact of the Scottish Parliament is the increasing globalisation of legal practice – and in some cases terminology, with the likes of “real property” and “probate” coming into use even in a Scottish context. While “queasy” about such incursions, Gretton is confident of the future for our distinct body of law.
“I think Scots law as a separate system is likely to survive. Now in saying that I’m not expressing a hidden wish. One could make up a case for saying Scots law should not survive. There’s a statable case that one island shouldn’t have two legal systems, that it increases costs for the ordinary punter and so forth. That’s a very complicated question, and I actually think that on the whole a lot of Scots law does work a bit better than English law, which is one reason why I would like Scots law to continue. Our land law, our contract law, property law in general. Those are big areas. But a reverse merger is never going to happen.”
Is there a role for practitioners in strengthening the system? “I think practitioners often, and it’s very understandable, are not particularly interested in some of these big questions and I have sympathy with that. For example, when law reform is looming in an area, most practitioners don’t pay attention until it’s actually coming up to the door. They have other things on their plate and I wouldn’t want to preach about that.
“But it’s great when practitioners are interested; for instance with the Scottish Law Commission project on moveable transactions, there has been astonishing support from commercial practitioners, and if they charged their standard billable rate for the time they put in, the Commission could not conceivably have paid for it. That’s wonderful, and I think we’re extraordinarily lucky in Scotland that so many practitioners are interested in reform, but I wouldn’t for a moment criticise others who are not. It’s tough working in practice.”
He does point out that although there are more consultations from various sources on aspects of reform than even he can respond to, those who do put in a view “can actually have real influence, and people take notice”, given the generally low rate of response.
Theory meets practice
What has Gretton been most proud of in his career? The question catches him by surprise, but after a little thought he nominates his analysis of the fundamentals of trust law, first developed in his essay in the volume published in honour of his predecessor Professor Bill Wilson. “It’s the concept of patrimony, a way of thinking about the trust which solves a number of problems – it required a lot of thinking, comparative law. It’s a way if you like of understanding what beneficial interest means in Scots law. Because you can’t analyse beneficial interest the way the English do (mind you the English themselves have endless disputes about what they mean). We’ve never really been able to agree here what beneficial interest means, but I think patrimonial right as a concept seems to have more or less solved this problem. That has gradually come to be accepted and the Court of Session on a number of occasions now has accepted that.”
What does he miss most? “The students. Because it’s a great privilege being in contact with young people; it’s a wonderful experience, teaching.”
But his contacts with the practising profession have also meant a lot. “Theory without practice is empty, and practice without theory is blind. I certainly have benefited enormously from contact with practice. The two should work together.
“I have huge respect for practice and practitioners. Obviously practitioners vary, but they often have to tackle very difficult intellectual problems. Unlike academics, they don’t have the luxury of setting their own problems; they have to tackle problems which are not of their own making, and they often do so very well. Academics do operate under pressures including pressure of time, but what we don’t have is the pressure of clients and the need to put in billable hours and so on. So practitioners give a very valuable social service, and some academics don’t quite understand that.”
It does not surprise that we have not yet heard the last from George Gretton. “My wife thinks I’m not taking retirement seriously enough. In 2017 three books have come out, all co-authored; next year there will be two more, both co-authored, so I’m still busy scribbling. No doubt there will come a time to give it up, but it’s never been just a job for me, it’s a vocation and it hasn’t gone away. I still have a number of academic projects in hand here. Because it’s all good fun. I realised early in my career that one lifetime is not enough!”
Nothing so Practical as a Good Theory: Festschrift for George Gretton (ed Andrew Steven, Ross Anderson and John MacLeod) is published by Avizandum Publishing, price £40