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SUPREME COURT INTERESTS : Prorogation case judge Lord Reed who failed to declare role in appointment of Scotland’s Prorogation Judicial Review ruling top judge Lord Carloway – takes over as new President of UK Supreme Court

President of UK Supreme Court Lord Reed. A TOP JUDGE who failed to declare a potential conflict of interest in relation to last year’s Supreme Court ruling on the unlawful suspension of Parliament – has taken over the role of President of the UK Supreme Court (UKSC) from Lady Brenda Hale.

Amid media plaudits from Lord Hopewho currently serves with other Scottish judges in courts in the United Arab Emirates & Gulf States – where Human Rights abuses, domestic abuse & trafficking in migrant workers lead the order of business –  Lord Reed – Robert John Reed (Baron Reed of Allermuir) – who has previously sat at the European Court of Human Rights and on a string of other appointments – now presides over the UK’s most powerful court.

Prior to his appointment to the Supreme Court in February 2012 – after the death of Lord Rodger, Lord Reed sat in the Outer House of the Court of Session, and became principal commercial judge in 2006.

Lord Reed was then appointed a Privy Councillor – a position enjoyed by other Court of Session judges such as Lord Malcolm (real name Colin Campbell QC) and joined the Inner House of the Court of Session where he sat from 2008 to 2012.

However, in September 2019 – when the UK Supreme Court upheld the prorogation case brought by MSP Joanna Cherry (and others) – documents obtained from the Scottish Government revealed Lord Reed sat on the same appointments panel which recommended Lord Carloway for the position of Lord President – Carloway (real name Colin Sutherland).

Lord Carloway is the same judge who upheld the Judicial Review case brought by the same MSP – Joanna Cherry (and others) in Scotland, against the prorogation of Parliament.

In the findings of three Scottish appeal court judgesheaded by Lord Carloway himself, – Lord Carloway upheld the respondents contention that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

In that ruling, Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogation Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.

Scrutiny of Papers obtained via Freedom of Information legislation and published in 2016 from the Scottish Government – revealed the same UKSC judge Lord Reed – also sat on the selection panel which recommended the appointment of Lord Carloway (Colin Sutherland) as Lord President in 2015.

The failure of Lord Reed to declare he sat on the appointments panel which recommended Lord Carloway for the top judicial job in Scotland – is one of two potential conflicts of interest for the Supreme Court judge which should have been aired and debated for recusal – prior to the UKSC hearing on the suspension of the Westminster Parliament.

How judges select Scotland’s judges – in secret Documents obtained from the Scottish Government revealed Lord Reed sat on the selection panel for the office of Lord President – along with Sir Muir Russell, Judge Lady Dorrian, and Deirdre Fulton – considered five candidates for the position of Scotland’s top judge.

This same panel – which included Lord Reed – went on to recommend Lord Carloway for the position as Lord President & Lord Justice General of the Court of Session.

Written exchanges between civil servants and the selection panel which are included in the released papers – reveal a short listing meeting was held on 1 September 2015.

The panel considered that two applicants Lord Carloway [Redacted] merited an interview on the basis of the quality of their applications.

Two emails from Lord Reed, dated 14th ^ 15 October 2015 – released by the Scottish Government in the FOI documents – give a minimal, and heavily redacted description of Lord Reed’s role in the panel’s work, which ultimately recommended Lord Carloway for the position of Scotland’s top judge.

In one email, Lord Reed states: “This strikes me as an excellent report. I have made a few minor suggestions as shown on the attached version. Most of the suggestions are trivial, [redacted]”

In a second email Lord Reed writes “I am content with the amended report. I agree, in particular, with the points which were made by Leeona. The amended version beems to me to present an accurate account, and a fair and balanced assessment [redacted]”

A further potential interest not declared, brought ot the attention of journalists by a legal source, identifies Lord Reed’s work together with Lord Carloway – on a ‘compatibility issues review’ to consider if the High Court of Justiciary in Scotland would still have to give permission for appeals in criminal cases to go forward to the UK Supreme Court.

The review group was itself established by Lord Carloway, with others appointed to the group being Lord Reed (Deputy President of the UKSC), and others – Lady Dorrian (Lord Justice Clerk); David Harvie (Crown Agent); Roddy Dunlop QC (Treasurer of the Faculty of Advocates); and John Scott QC (President of the Society of Solicitor Advocates).

The review concluded – “Appeals to the Supreme Court of the United Kingdom (UKSC) should not require certification by the High Court of Justiciary that the issue raises a point of law of general public importance, a review chaired by the Lord Justice General has concluded.”

Although – it should be pointed out – coincidentally, the review on appeals to the UKSC – limited to appeals in criminal cases – came too late to help in several serious cases of judicial conflicts of interest in Scotland – particularly on a well known case where Court of Session judge & Privy Councillor – Lord Malcolm (Colin Campell QC) heard a case up to eight times – while failing to declare his own son represented the defenders in multi million pound damages action.

A report on the Lord Malcolm conflict of interest case can be found here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders.

The two potential conflicts of interest, not declared by Lord Reed in relation to what was a law changing UKSC ruling of significant impact – again highlight the need for a publicly available Register of judges’ interests – to ensure members of the judiciary do not forget to disclose interests which may have a bearing on cases before them.

The issue also brings into question again, the self imposed secrecy on judicial interests by the judges of the UK Supreme Court and wider UK Judiciary – who have resisted calls to become more transparent and declare their interests in the same way all public servants and elected politicians are required to declare in publicly available registers of interest.

The current stance of UK Supreme Court judges on transparency in relation to declarations of interest, is a point blank refusal by the judiciary to comply with the public expectation of transparency.

The UK Supreme Court’s website states the following in relation to judicial expenses and interests:

Justices’ interests and expenses

Background

Prior to the creation of the Supreme Court of the United Kingdom, the highest court in the UK was the Appellate Committee of the House of Lords. The members of the Committee were Lords of Appeal in Ordinary appointed under the Appellate Jurisdiction Act 1876. Although those appointments gave them full voting and other rights in the House of Lords, the Law Lords had for some years voluntarily excluded themselves from participating in the legislative work of the House. Notwithstanding that, they were bound by the rules of the House and provided entries for the House of Lords Register of Interests.

On the creation of the Supreme Court the Lords of Appeal in Ordinary became Justices of the Supreme Court. They retain their titles as Peers of the Realm, but are excluded by statute from sitting or voting in the House, for so long as they remain in office as Justices of the Supreme Court. As such, they are treated as Peers on leave of absence; and do not have entries in the House of Lords Register of Interests. Historical information remains accessible via the House of Lords website.

Other judges in the UK, such as the judges of the Court of Appeal and the High Court in England and Wales, and in Northern Ireland, and the Court of Session in Scotland, do not have a Register of Interests. Instead they are under a duty to declare any interest where a case comes before them where this is or might be thought to be the case.

Current position

Against this background the Justices have decided that it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believed to be complete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound, and which is now publicly available on the UKSC website.

In addition all the Justices have taken the Judicial Oath – and they all took it again on 1 October 2009 – which obliges them to “do right to all manner of people after the law and usages of this Realm without fear or favour, affection or ill will”; and, as is already the practice with all other members of the judiciary, they will continue to declare any interest which arises in the context of a particular case and, if necessary, recuse themselves from sitting in that case – whether a substantive hearing, or an application for permission to appeal.

In relation to the UK Supreme Court’s stance on declarations of interests, and declarations of conflicts of interest, Diary of Injustice reported on the issue in detail during 2017, here: SUPREME SECRETS: UK Supreme Court refuses to publish recusal data – Court rejects release of info on UKSC justices’ conflicts of interest in response to Freedom of Information recusals probe on top UK court

During the probe of UKSC recusals and failure to declare interests, a common thread of dishonesty was noted in court staff’s handling of a Freedom of Information request from Scotland – which was only answered after coverage of the issue in The National newspaper, which prompted the Information Commissioner’s Office to order the court to respond to the request.

Lord Reed’s limited biography on the UK Supreme Court website (reprinted below) does not feature either of the issues identified linking the judge to Lord Carloway’s appointment as Lord President nor any mention of review & other work undertaken with Lord Carloway – including the UK Supreme Court sitting in Edinburgh, which included Lord Carloway as a sitting judge on the UKSC panel.

The announcement by 10 Downing Street of Lord Reed’s appointment as President of the UK Supreme Court in July 2019 read as follows:

The Rt Hon Lord Reed will succeed Baroness Hale of Richmond as President of the Supreme Court of the United Kingdom, alongside three additional appointments as Justices.

The Queen has been pleased to confer a peerage of the United Kingdom for Life on Lord Reed upon his appointment as the President of the Supreme Court in recognition of the contribution that he has made to law and justice reform.

Lord Reed will take up the position of President on 11 January 2020. Lord Justice Hamblen, Lord Justice Leggatt and Professor Andrew Burrows will join the Supreme Court as justices on 13 January, 21 April and 2 June 2020 respectively.Her Majesty The Queen made the appointments on the advice of the Prime Minister and Lord Chancellor, following the recommendations of independent selection commissions.

Lord Reed will replace Lady Hale who retires on 10 January 2020 after serving as President of the Supreme Court since September 2017.

LORD REED UKSC BIOGRAPHY:

Lord Reed was appointed as a Justice of the Supreme Court in February 2012 and has served as Deputy President since June 2018. Prior to his appointment to the Supreme Court he served as a judge in Scotland, sitting from 1998 to 2008 in the Outer House of the Court of Session, where he was the Principal Commercial and Companies Judge, and from 2008 to 2012 in the Inner House.

He was educated at the Universities of Edinburgh and Oxford, and qualified as an advocate in Scotland and as a barrister in England and Wales. He practised at the Scottish Bar in a wide range of civil cases and also prosecuted serious crime.

As well as sitting on the Supreme Court and the Judicial Committee of the Privy Council, he is a member of the panel of ad hoc judges of the European Court of Human Rights, and a Non-Permanent Judge of the Hong Kong Court of Final Appeal. He is also the High Steward of Oxford University.

IMPORTANT NOTE: Readers should note this article does not take sides in the brexit debate. This article is a reporting of a failure by a UK Supreme Court judge to declare or discuss relevant interests and a potential failure to recuse – by a senior judge who is the new President of the UK Supreme Court.

 

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POLICE UNION SECRETS: Transparency petition by whistle-blower ex Police Officer closed by msps as Scottish Government block move to bring Freedom of Information compliance to Scottish Police Federation

Scots Police Fed. keeps secrets. A PETITION calling for Holyrood to recommend Freedom of Information compliance for the Scottish Police Federation (SPF) – has been closed – after the Scottish Government said it would block transparency compliance for the Union which covers all Police Scotland officers.

Petition PE1763 Freedom of Information Legislation (Scottish Police Federation) – submitted by whistleblower & ex-Police Officer Robert Brown – sought to bring the Scottish Police Federation into line with its counterpart – the Police Federation of England & Wales – which has been covered by Freedom of Information legislation since 2017

Legislation in England & Wales states: Freedom of Information Act etc: Police Federation for England and Wales: The Police Federation for England and Wales is to be treated for the purposes of— (a)10the Freedom of Information Act 2000,(b)the Data Protection Act 1998, and (c)section 18 of the Inquiries Act 2005, as if it were a body listed in Part 5 of Schedule 1 to the 2000 Act (public authorities).

The Police Federation of England & Wales FOI website section states the following: “The Police Federation of England and Wales (PFEW) is funded in part by police officers who pay subscriptions from their wages. We are not funded by the public, and we are the only staff association to be subject to Freedom of Information (FoI), which came into effect for the PFEW in April 2017. The Freedom of Information Act (2000) provides public access to relevant information held by public authorities. Should you wish to submit an FoI request, please contact us.”

Given the Police Federation of England & Wales obvious compliance with Freedom of Information legislation, Police Officers in Scotland and others with an interest in policing – an intense area of public interest – would benefit considerably to access to information – from the same level of transparency applied to the Scottish Police Federation – via compliance with the Freedom of Information (Scotland) Act 2002.

Commenting on the petition submitted by ex Police Officer Robert Brown to the Scottish Parliament’s Public Petitions Committee – Brian Whittle MSP said “The petition has real merit, especially given that England and Wales have already gone down the same route

Howeverm a short debate then took place – with the Convener Johann Lamont & Deputy Convener Gail Ross of the Public Petitions Committee backing away from taking the matter further.

The petition to bring equality of transparency for the Scottish Police Federation was then abruptly closed – after Committee members were told the Scottish Government will not bring Freedom of Information accountability to the Scottish Police Federation.

Last year – the powerful and secretive Scottish Police Federation – which acts as a lobbying force for police officers in Scotland and has the power to decide or deny help to Police Officers – saw it’s General Secretary – Police Constable Calum A Steele – found guilty by PoliceScotland in relation to a complaint of online social media abuse against a former senior Police Officer – ‘Inappropriate and offensive’ Police union boss guilty of abusing female former chief in Twitter tirade.

The issue arose from comments made by Calumn Steele in response to criticisms about the appointment of a Chief Constable – Iain Livingstone – who had previously been accused of five allegations of serious sexual assault against a female Police Officer – reported in further detail here: TOP COP SECRETS: Transparency lacking at Police Scotland as spy scandal cops refuse to disclose files on complaints & historical sexual assault case details involving Deputy Chief Constable Iain Livingstone

An earlier probe by Diary of Justice also revealed the Scottish Police Federation received millions of pounds of public cash over the years from the SNP Scottish Government – a full report can be viewed here: PROBE THE FED: Calls for Holyrood to probe secretive Scottish Police Federation as files reveal SPF General Secretary asked Scottish Government to withdraw £374K public cash grant funding – after social media transparency calls from cops

And, days after the Scottish Information Commissioner made an online statement via Twitter that it would recommend the Scottish Police Federation for Freedom of Information compliance – SPF General Secretary Calum Steele asked the Scottish Government to end the £374,000 public cash grant paid each year by Scottish Ministers to the Scottish Police Federation.

A full report on how Daren Fitzhenry – the Scottish Information Commissioner – backed away from promises to recommend FOI compliance for Scottish Police Federation, and evidence submitted by DOJ journalists to the Public Audit and Post Legislative Scrutiny Committee of the Scottish Parliament, is covered in further detail here: FOI PROBE: Holyrood Committee hear Scottish Information Commissioner backed off promise to bring Freedom of Information to Scottish Police Federation – even after Info. Tsar knew England & Wales Police Fed. already complied with FOI legislation

As thngs stand at the date of publication – the Scottish Police Federation remain exempt from Freedom of Information legislation – despite the same transparency laws applying to the Police Federation of England & Wales.

Video footage and a transcript report of the Petitions Committee debate on bringing Freedom of Information compliance to the Scottish Police Federation follows:

Scottish Police Federation Freedom of Information petition – Public Petitions Committee 5 Dec 2019

Freedom of Information Legislation (Scottish Police Federation) (PE1763)

The Convener (Johann Lamont, Scottish Labour): The next new petition is PE1763, headed “Make the Scottish Police Federation comply with FOI legislation” and lodged by Robert Brown. The petition calls on the Scottish Parliament to urge the Scottish Government to make the Scottish Police Federation comply with the Freedom of Information (Scotland) Act 2002.

Our briefing explains that freedom of information requirements apply broadly to public authorities such as Governments, councils and health boards. Police Scotland is subject to the requirements of the 2002 act, but the Scottish Police Federation is not. As police officers are prohibited from joining trade unions, the Scottish Police Federation was created as a staff association with responsibility for the welfare and efficiency of police officers. Trade unions are not covered by freedom of information legislation.

It could be argued that the Scottish Police Federation is akin to a trade union and, therefore, should not be covered by freedom of information requirements. However, the Scottish Police Federation was established by legislation; therefore, it could be argued that it has some similarities with public bodies. The Police Federation of England and Wales is required to comply with freedom of information legislation as a result of changes to the law that were made in 2017. The Scottish Government stated in July 2019 that it had no plans to make the Scottish Police Federation subject to freedom of information legislation.

Elaine Smith, who has noted her support for the petition, says:“I have realised that the Scottish Police Federation appear to be totally self-governing and do not conform to the standards set for England and Wales Federations”.

Do members have any comments or suggestions for action?

Brian Whittle (Scottish Conservative & Unionist):The petition has real merit, especially given that England and Wales have already gone down the same route. However, the Scottish Government has indicated that it has no intention of changing its position. Frustrating as it may be to both the petitioner and the committee with regard to investigating the issue, I do not know that there is anything in particular that we can do to push the matter forward, given that we know where the Scottish Government stands.

The Convener: I do not think that trade unions should fall within the remit of, or be caught by, freedom of information legislation. The police are not allowed to have a trade union, and the only way that they can have a staff association is through legislation. Would it be fair if what is, in effect, a trade union for the police fell under different legislation from that which applies to other trade unions?

The SPF is a unique organisation. However, given that I perceive the organisation as a trade union, I do not see why—unless I am arguing that all trade unions should be in the same position—it should be singled out. The police do not have any choice—they are not allowed, under different legislation, to set up a trade union.

Brian Whittle: The whole matter is really interesting following incidents down south, such as the plebgate scenario, that have brought the police there under the auspices of FOI legislation. Again, I go back to the fact that the Scottish Government has been quite firm in saying that it has no intention of moving down that route. I am, therefore, not quite sure what we can do with the petition.

Maurice Corry (Scottish Conservative & Unionist): It is a difficult one. The release of any information under FOI is entirely in the jurisdiction of the body that is being requested to release it, and there may be valid reasons why it cannot be released. There is some sort of parity. Perhaps we should go back and question the Scottish Government, just to double-check that it is still of the same view.

The Convener: The matter was not in the programme for government.

The Government said what it said in July 2019, so we know what the answer is going to be. We would only be deferring our decision on whether we want to explore the matter further. My feeling is that the case has not been made for why the SPF, as a quasi-trade union, should fall within the remit of FOI legislation, unless we are arguing that all trade unions should be subject to FOI—I would argue that they should not be. Why would we be inconsistent? There are particular circumstances that have led to the current position in England and Wales, but my sense is that there is not an issue in Scotland.

Gail Ross (Deputy Convener) (Scottish National Party): I agree. The Government has made it quite clear what its policy is, and that is not going to change. I agree with Brian Whittle—as a committee, we cannot really take the petition forward.

Maurice Corry: I have not said that I disagree with that; I just wanted to play the devil’s advocate, because the petition raises an issue that needs to be given serious thought. I understand the reasons why the SPF was set up.

The Convener: The petition highlights the difference between the circumstances in England and Wales and those in Scotland, and it gives us an opportunity to reflect on the situation. However, my sense is that there is no pressure for such a change in Scotland. It would require broader discussion about how a staff association inside the police should operate if it is not to operate like a trade union, and I do not think the case has been made for such a change.

My sense is that the committee agrees that we should close the petition under rule 15.7 of the standing orders, on the basis that the Scottish Government has confirmed very recently that it has no plans to make the Scottish Police Federation subject to freedom of information legislation.

Do members agree? Members indicated agreement.

Petition documents submitted by the petitioner, ex Police Officer Robert Brown – stated:

Elaine Smith MSP has made many representations on my behalf including writing to the various First Ministers, Justice Ministers, Lord Advocates, Police Complaints Commission, Strathclyde Police Authority, Police Investigation Review Commission, Strathclyde Police Federation and the Scottish Police Federation. Mrs Smith also lodged a number of parliamentary questions on my behalf including seeking clarification on the issue in July 2019 from the Cabinet Secretary for Justice and from the Scottish Parliament Information centre.

The Scottish Police Federation (SPF) is currently not required to comply with The Freedom of Information (Scotland) Act 2002, whereas the Police Federation of England and Wales is required to comply with the Freedom of Information Act 2000.

All UK police forces, except Police Scotland are also required to comply with the Act. In my opinion, the foregoing is an anomaly, given the situation in England and Wales and I would suggest that making the SPF compliant with The Freedom of Information (Scotland) Act 2002 would assist every member of the SPF, every one of the 17,000 police officers in Scotland as well as members of the public who come into contact with the police and who are interested in openness and transparency.

The SPF hold large amounts of information about police officers including financial and medical information, as well as details about criminal and misconduct allegations made against officers. As a result of their position in representing police officers who are subject to investigation, the SPF receive and retain information about members of the public

Neither SPF members, police officers, nor members of the public are able to access this information. The SPF also hold large amounts of information about police officers’
pay, pensions, welfare and how SPF subscriptions are spent and used among other matters which can be accessed by other Federation members, police officers and members of the public, elsewhere in the UK, but not in Scotland.

The current anomaly in my opinion is a bar to any SPF member, police officer, member of the public or other interested party to gain access to information which is readily available to interested parties in other parts of the UK. If Scotland prides itself on openness and transparency then a body which represents many people and holds information on many more should not be allowed to be excluded from this legislation when equivalent bodies in other parts of the UK are not excluded from the equivalent legislation, i.e. The Freedom of Information Act 2000. The Freedom of Information Act 2000 is specific to England and Wales and is therefore not applicable in Scotland. In my opinion, common sense dictates that the same standard should apply across the UK and accordingly this petition is calling for the SPF to be required to comply with the equivalent legislation in Scotland.

A question from Elaine Smith MSP on Freedom of Information compliance for the Scottish Police Federation – was answered by Humza Yousaf – the current Justrice Secretary – on 17 July 2019.

Elaine Smith (Central Scotland) (Scottish Labour): To ask the Scottish Government what its position is on making the Scottish Police Federation compliant with data protection and freedom of information legislation, in line with the Police Federation of England and Wales.

(S5W-24011)

Humza Yousaf: The Freedom of Information (FoI) acts provide for access to information held by public authorities and Trade Unions and Staff Associations are not generally covered by these acts.

The decision to add the Police Federation of England and Wales to FoI legislation was made by the Home Office and there are currently no plans to add the Scottish Police Federation to the Scottish FoI legislation.

Data Protection legislation does apply to the Scottish Police Federation and a link is attached below to their Privacy Statement, which explains how they processes personal data:

A briefing from the Scottish Parliament Information Centre (SPICe) – prepared for the Public Petitions Committee consideration of Petition 1763 – stated:

Background: Freedom of information

Freedom of information legislation allows individuals to request information held by public authorities. Freedom of information is devolved to the Scottish Parliament, so the legislative framework is slightly different between Scotland and England and Wales.

Broadly, freedom of information requirements apply to public authorities, such as governments, councils and health boards. They don’t generally apply to private bodies, although some private bodies carrying out public functions are covered (in relation to their public functions, rather than their wider work).

Police Scotland is subject to the requirements of the Freedom of Information (Scotland) Act 2002.

The Scottish Police Federation is not. The Scottish Police Federation Police officers are prohibited from joining trade unions.

The Scottish Police Federation was created by the Police Act 1 919 as a staff association with responsibility for the welfare and efficiency of police officers.

Trade unions are not covered by freedom of information legislation. They are seen as private bodies representing the interests of members. It could be argued that the Scottish Police Federation is akin to a trade union and therefore should not be covered by freedom of information requirements.

However, the Scottish Police Federation was established by legislation and could be argued to have some similarities with public bodies.

The Police Federation in England and Wales

The Police Federation in England and Wales is required to comply with freedom of information legislation, as a result of changes to the law in 20171.

The then Home Secretary Theresa May argued that this change was necessary to improve transparency and accountability2.

It formed part of a wider reform initiative covering the Police Federation, which had been hit by several scandals. These included the so-called “plebgate” incident, involving allegations that the then UK Government Chief Whip, Andrew Mitchell MP, had called police officers “plebs”.

Data protection legislation

Separately, data protection legislation controls how personal data (covering any information from which a living individual can be identified) can be used.

Individuals have rights to access information that organisations (including private bodies) hold about them personally under data protection legislation. Data protection is reserved to the UK Parliament (and is, at present, mainly controlled at a European Union level).

Freedom of information legislation cannot be used to require the release of information which would identify a living individual, unless this would also be possible under data protection legislation.

This would include information which would identify a police officer (including a police officer who was subject to a complaint) or a member of the public.

Data protection legislation will usually mean that the consent of the person affected would be required before their data can be released.

However, it is possible to release personal data to a third party without consent where it is “reasonable” to do so.

Consideration must be given to the circumstances of the case, including the type of information which would be disclosed. It is also possible for organisations to redact (block out) information which could lead to the identification of a living individual when responding to freedom of information requests.

Scottish Government Action

The Scottish Government has stated, in response to a parliamentary question from July 20193, that it has no plans to make the Scottish Police Federation subject to freedom of information legislation.

Scotland keeps it secrets, meahwhile England & Wales Police Federation is covered by Freedom of Information law:

Access to information Freedom of Information

The Police Federation of England and Wales (PFEW) is funded in part by police officers who pay subscriptions from their wages. We are not funded by the public, and we are the only staff association to be subject to Freedom of Information (FoI), which came into effect for the PFEW in April 2017. Much of the information you may ask for may already be on this website, so please take the time to search for what you need first.

How to ask for information: The Freedom of Information Act (2000) provides public access to relevant information held by public authorities. Should you wish to submit an FoI request, please contact us at foi@polfed.org

The General Data Protection Regulations and the UK Data Protection Act (2018) Subject Access provides a right for the requester to see their own personal data, rather than a right to see copies of documents that contain their personal data. If you wish to submit a SAR, please contact us at dataprotection@polfed.org.

For either of the above, we will have a better chance of finding the information you want if you are as specific as you are able to be and provide us as much detail as possible.

How long will it take to receive the information I want?: This will depend upon nature of the information you have asked for. If you have requested personal information about yourself then we should respond to your request within 1 calendar month from the point at which your request and identity has been verified.

For other requests you have a right to receive the information, or receive a valid refusal, within 20 working days, unless we need clarification.

Do you have an issue or case with the Scottish Police Federation (SPF) or any other information relevant to the SPF you wish to discuss? If so, please contact Diary of Justice with further details via scottishlawreporters@gmail.com.

 

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COURT GIFTING, M’LORD: Transparency declarations of ‘hospitality’ to Scotland’s Courts reveal gift giving by Police & Prosecutors to court staff – and reductions in declared hospitality from Legal Aid millionaire law firms

Hospitality Register identifies gifts to courts. A REGISTER which now requires the identification of anyone offering hospitality to Scotland’s Courts and judiciary – has seen a drop in high value gifts now recorded in more detail by the Scottish Courts and Tribunals Service (SCTS)

However, the latest declarations of hospitality to court staff in Scotland – reveals a slight decrease in gifts & hospitality from law firms raking in millions in publicly funded legal aid, while ‘anonymous’ gifts from unidentified “Member of the public” appear to be on the rise.

Among the providers of ‘hospitality’ to court staff are multiple law firms, technology companies, in-house legal teams of Scottish Local Authorities, and even Police Scotland, who provided a “Crystal engraved Police Scotland Armed Policing Specialist Firearms Unit ornament” to the Supreme Courts.

And now – thanks to media scrutiny, records of hospitality which is offered but refused – is also now part of the register.

Examples of refused hospitality include a burns supper dinner, offered by Microsoft to the Information Technology Unit in January 2019, and questionable offers of hospitality by Procuratir Fiscals to court staff – which included a faculty dinner offered to court staff at Kilmarnock Sheriff Court.

The rate of hospitality in terms of high value gifts has declined, at least if the disclosed records are to be believed.

And, law firms which are known to have received up to half a million pounds of legal aid every year – who were previously showering staff in local courts with gifts & hospitality – are no longer flooding the courts with perks & freebies after Diary of Justice began publishing disclosures on courtroom hospitality and it’s connections to legal aid & lawyers touting for business in local criminal courts.

The recently disclosed Register of Hospitality for Scotland’s Courts & Tribunals Service running from 2017-2019 – as provided by the SCTS in relation to a Freedom of Information request – can be viewed here: Scottish Courts & Tribunals Service Register of Hospitality 2017-2019

Among the extensive list of hospitality providing law firms are the following names, provided by a reader – which also highlight some gifts & hospitality from foreign Governments to Scotland’s courts. The location of hospitality offered/accepted is listed next to the provider: The Society of Solicitors of Hamilton (Hamilton Sheriff Court), Burnett & Co (Aberdeen Sheriff Court, Digby Brown Solicitors (Aberdeen Sheriff Court), McKinnon Hewitt Solicitors (Kilmarnock Sheriff Court), Belmonte & Co Solicitors (SCTS Lothian & Borders mgmt team), Leonards Solicitors (Hamilton Sheriff Court), Norwegian Civil Law Division (OPG & AOC), Innes Johnson LLP Kirkcaldy (Dunfermline Sheriff Court), Netherlands Judiciary, Lamont’s Solicitors Ayr (Ayr Sheriff Court), Aberdeen Bar Association (Aberdeen Sheriff Court), George Mathers & Co solicitors (Aberdeen Sheriff Court), West Lothian College, Bar Association (Aberdeen Sheriff Court), Nigel Beaumont Solicitor (Edinburgh Sheriff Court), Unidentified Solicitor 3x Hospitality (Livingston Sheriff Court), Adams Whyte Defence Lawyers (Livingston Sheriff Court), Bar Association (Livingston Sheriff Court), Allcourt Solicitors (Livingston Sheriff Court), Balfour & Manson (Supreme Courts), Ministry of Justice – Korea (OPG & AOC) , Ministry of Justice republic of Korea (OPG & AOC), Chinese Delegation (Supreme Courts), School Mock Court Case Project (Supreme Courts), Marsh Insurance (OPG & AOC), University of Glasgow (Glasgow Sheriff Court), Solicitors for the Elderly (Supreme Courts), Inverness Legal Services (Inverness Sheriff Court), Malcolm Boyd Sheriff Officers (Airdrie Sheriff Court), BTO Solicitors (Supreme Courts & Edinburgh Sheriff Courts), Stewart and Watson property & Legal services (Elgin Sheriff Court), T Duncan & Co (Forfar Sheriff Court), Caesar & Howie Solicitors Alloa (Alloa Sheriff Court) , PoliceScotland (Supreme Courts), Cockburn McGrane Solicitors (Kirkcaldy Sheriff Court), G4S (Dundee Sheriff Court), MacDonald Law, Thurso (Kirkwall Sheriff Court), Caird Vaughan Solicitors (Dundee Sheriff Court), Lefevre Litigation (Supreme Courts), Alistair Young Solicitor (Dumbarton Sheriff Court), McKenna Law Practice (Kirkcaldy Sheriff Court), President of the Law Society of Scotland (SCTS Chief Executive Office), Court Police Officers (Kirkcaldy Sheriff Court), Hunter & Robertson solicitors (Paisley Sheriff Court), Procurator Fiscals Office Hamilton, Summary Unit (Hamilton Sheriff Court), Bonnar Accident Law (Airdrie Sheriff Court), JK Cameron solicitors (Dumbarton, Airdrie Sheriff Court), Kenneth M Greener solicitors (Hamilton Sheriff Court), Wink and MacKenzie solicitors (Elgin Sheriff Court), Aberdein Considine solicitors (Aberdeen Sheriff Court), Mackie Thomson & Co Ltd solicitors (Hamilton Sheriff Court), North Lanarkshire Council Legal (Hamilton Sheriff Court), Procurator Fiscal (Dundee Sheriff Court), Stirling Dunlop solicitors (Hamilton Sheriff Court), the MacKenzie Law Practice (Inverness Sheriff Court), AC O’Neill solicitors (Dumbarton Sheriff Court), Adairs solicitors (Dumbarton Sheriff Court).

A full listing of solicitors & law firms, companies and others who offered hospitality to court staff and the judiciary – can be viewed by searching the Register of Hospitality document which runs in detail to twenty eight pages, providing details of all disclosed hospitality from law firms, and others to the Scottish Courts & Tribunals Service.

Prior to Freedom of Information requests from DOJ journalists, the SCTS register of hospitality did not identify law firms – and was later found to be incomplete in recording hospitality, after an investigation was launched due to media coverage of gifts by law firms – some of which have received many millions of pounds of legal aid over the last decade.

Extract of Register of Hospitality 2013 Scottish Courts Service. Disclosures from the Scottish Court Service in documents reveal that in the last five years, over 500 instances of gifts and hospitality received by publicly funded SCS were declared under the rules.

Gifts such as expensive champagne, wines, chocolates and dinner invitations were given by lawyers and others to Sheriff Clerks and SCS staff, along with invitations to the Royal Garden Party, paid-for trips in planes, tickets to football matches and a host of other goods, services & gifts many court users may well come to question in terms of how much this gift giving by lawyers dents the supposed impartiality of court staff.

During reporting of the issue back in 2013, it emerged in the media that in some cases, lawyers had paid for criminal fines accrued by court staff, leading some to question their reasons for doing so and what secret benefits this brought to the legal profession and court staff involved.

At the time, legal sources acknowledged to Diary of Justice that significant numbers of gifts have not been declared by court staff, and that much of the gift giving may well be seen as thanks for favours done in court for law firms, particularly those who are pursuing clients for unpaid fees.

The lack of declarations of hospitality and gifts, and the coverage by Diary of Justice, which reported on concerns regarding hospitality involving Scottish Court Service employees – led to an investigation by Gillian Thompson – who served as Scotland’s second Judicial Complaints Reviewer (JCR)

Ms Thompson was asked by the Scottish Court Service to investigate reports of irregularities in hospitality given to court staff.

The request for the investigation came after the Scottish Court Service received Freedom of Information requests regarding hospitality in the courts, prompting concerns some staff may have accepted gifts or hospitality but failed to register.

Report said SCS Registers insufficient, Court staff involved in private gains failed to declare. Gillian Thompson’s Report on Hospitality & Gifts in the SCS stated:  “The information currently captured on the registers is insufficient to provide assurance that staff are using their common sense and considering issues such as conflict of interest.

Ms Thompson went on to recommend the “SCS should revise the Policy on Acceptance of Gifts, Rewards and Hospitality to ensure that it is fit for purpose for all staff, taking account of the various roles performed within SCS. It may also be time to revisit the levels of value for gifts and hospitality.”

The former AIB’s report also revealed court staff were using their positions to earn money privately from their links with lawyers and law firms operating in courts, stating “Several staff raised the issue of sheriff clerks who carry out extrajudicial taxations and private assessments and who personally benefit financially from these activities.”

Ms Thompson’s report roundly condemned this practice, stating: “Not only is it inappropriate in terms of the civil service code requirements for staff who are public servants to be able to receive private gain from their employment it is also highly divisive when other staff see such benefits being derived from simply being in the right post of Auditor of Court within the Sheriff Courts.”

Ms Thompson recommended in her report the “SCS should bring the practice of sheriff clerks profiting privately from their employment by SCS to an end as quickly as possible”.

HOW COURT CHIEFS LOST HOSPITALITY INFORMATION BATTLE

When DOI launched an initial investigation into hospitality and graft among court staff, the Scottish Court Service refused to release information relating to the gift register, claiming “the names of the gift or hospitality provider would be deemed as personal information” and “as the provider of the gift or hospitality was not made aware at the time that their name may be released, we consider disclosure of such is likely to bring the Scottish Court Service into conflict with the data protection principles.”

However, the Freedom of Information request – from DOJ – triggered a review of hospitality policy at the Scottish Court Service, leading to names of ‘’hospitality’ providers being added to the register.

Richard Warner of the SCS said: “I can advise you that due to your request for this information, the Scottish Court Service has changed the policy covering hospitality and gifts to ensure that the provider of any hospitality or gift are made aware that their name shall be entered on to our register and may be disclosed if requested in any future information request. This policy change shall take effect as from 1 January 2014 so the release of names may be considered in any future request for gifts or hospitality offered from this date. The policy also states that if the provider does not consent to their name being considered for release then the gift or hospitality cannot be accepted by a member of staff.”

After a request for review of refusal to disclose the information, the SCS again refused – this time around, claiming it would cost them too much to contact each law firm to ask permission to disclose their ‘hospitality’ to court employees. The SCS claimed they would have to contact every lawyer who gave a gift and this would cost too much to provide the information.

DOJ journalists took the matter up with Rosemary Agnew – the Scottish Information Commissioner – who requested Courts Chief Eric McQueen provide an explanation as to why the courts were blocking release of information on hospitality relationships between the legal profession and court staff.

John Kelly, Freedom of Information Officer at the SIC said: “Having written to and discussed the matter with the SCS, without being required to do so by way of a formal Decision Notice, the SCS has agreed to provide you with the information requested, subject to redactions in terms of section 38(1)(b) of FOISA on the basis that to disclose some of the names of individuals would breach the first data protection principle of the Data Protection Act 1998 (the DPA). I understand that the names of Solicitor and Law Firms will be provided.”

After the intervention of the Scottish Information Commissioner, the SCS subsequently released the hospitality list to journalists.

Richard Warner for the SCS said: “Having reconsidered your request, and the SCS response, I now attach a list which indicates law firms where this information has been recorded.  For the reasons stated in our earlier response this does not include the names of any individuals concerned as there could have been no expectation on their part that this information would be circulated or published widely.  As indicated previously, steps are being taken to ensure that individual persons are made aware at the relevant time that their details made be released as a result of an information request.”

Previous articles on hospitality and gifts to the Scottish Courts and Tribunals Service, reports on gift giving to court employees and investigations by Diary of Injustice on the relationship between law firms and SCTS staff can be found here Hospitality and Gifts to the Scottish Courts.

 

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JUDICIAL REGISTER: Ex-Judicial Investigator responds to top judge’s claims a register of judges’ interests may affect judicial recruitment – “If a lawyer were put off by having to be open and transparent it does raise questions about their suitability to be members of the judiciary”

Justice Committee heard evidence from Moi Ali. CLAIMS by Scotland’s top judge that introducing a register of judges’ interests may impact on judicial recruitment were brushed aside at Holyrood’s Justice Committee earlier this week – during an evidence session with former Judicial Complaints Reviewer Moi Ali.

Answering a question from MSP Shona Robinson on concerns raised by Lord Carloway of difficulties in hiring judges – Moi Ali said: “If a lawyer were put off by having to be open and transparent, that would raise questions about their suitability to be a member of the judiciary.”

The response from Moi Ali, who served as Scotland’s first Judicial Complaints Reviewer (JCR) – was a key moment during Tuesday’s hearing where the Scottish Parliament’s Justice Committee took further evidence on a petition calling for the creation of a register of interests for judges: Petition PE1458: Register of Interests for members of Scotland’s judiciary – originally filed at Holyrood’s Public Petitions Committee in October 2012.

The petition calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Video footage of Moi Ali’s respnse to MSP Shona Robison can be viewed here:

Moi Ali – Judicial interests register will not deter judicial candidates – Justice Committee 19 November 2019

Shona Robison (Dundee City East) (SNP): Good morning. Lord Carloway said in his written evidence that a register of financial interests could “have a damaging effect on judicial recruitment.”

It is not necessarily the case that anyone would have anything to hide, but there may be such a perception as a result of the extended scrutiny. Would a register of interests have a negative effect on judicial recruitment in any way?

Moi Ali: I honestly do not think that it would. If a lawyer were put off by having to be open and transparent, that would raise questions about their suitability to be a member of the judiciary. If the need for transparency put people off, that might not be a bad thing because they might not be the sort of people whom we want to be sitting in judgment.

By and large, a requirement to register interests does not put large numbers of people off wanting to sit on public boards or build a career in politics. It has not deterred me or any of you—we are all here today, and we all publish declarations in a register of interests.

I do not agree, therefore, that it necessarily follows that people would be put off becoming judges. People do that job because it is a public service and a very worthwhile thing to do. I would hope that the sort of people who want to do that job would want to do it in an open and transparent way.

Earlier in August 2019, Scotland’s top judge Lord Carloway (real name Colin John Maclean Sutherland) – wrote a letter to the Justice Committee claiming that raising the issue of judges declaring their interests may impact on his recruitment of judges for the Court of Session and High Court of Justiciary.

Carloway, who earns £234K a year – also refused to give evidence at the Justice Committe, and demanded to know of questions in advance should he have to address further queries from MSPs who have been considering the cross party backed petition calling for a register of judicial interests since it was passed to them by the Public Petitions Committee in May 2018, reported in further detail here: JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

Lord Carloway’s letter to Margaret Mitchell MSP stated “I appreciate that your Committee is constituted differently from the Petitions Committee, and that the topic may therefore be comparatively new to its members. There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee’s valuable time.”

Carloway ended his letter by stating “I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.”

The evidence hearing before the Justice Committee lasted some fifty minutes, covering a host of issues ranging from how a register of judges’ interests would benefit the judiciary and enhance public confidence in the courts system, to answering the concerns of judges who feel their privacy should be protected more so than any other organisation or branch of the executive.

This is the second time Moi Ali  – who is now the Independent Assessor of Complaints for the Crown Prosecution Service in England – has given evidence to MSPs on the long running Holyrood probe of judicial transparency and declarations of judges’ interests.

Earlier, in September 2013, Moi Ali gave evidence to the Scottish Parliament’s Public Petitions Committee, and gave her backing to calls for the creation of a register of judicial interests.– reported in more detail along with video footage of the 2013 evidence hearing, here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Video footage of the Justice Committee’s 19 November 2019 hearing where Moi Ali gave evidence on Petition PE1458 can be viewed here:

Moi Ali – Register of Judges Interests evidence hearing Scottish Parliament 19 November 2019

The full transcript of the hearing is reprinted below:

Judiciary (Register of Interests) (PE1458) Justice Committee 19 November 2019

The Convener (Margaret Mitchell (Central Scotland) (Con): Agenda item 2 is an evidence session on petition PE1458, in the name of Peter Cherbi, calling on the Parliament to establish a register of judicial interests. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome our witness, Moi Ali, who is a former Judicial Complaints Reviewer. Regrettably, Peter Cherbi is unable to be here this morning. I wish him a speedy recovery.

I refer members to the recent letter on the petition that the committee received from the Lord President.

We move to questions from members.

John Finnie (Highlands and Islands) (Green): Good morning, Ms Ali. Thank you for your written submission.

Will you outline the nature of the problem? Is the problem actual or does it involve perceived bias?

Moi Ali: The short answer is that it is a mix of both. Without a register of interests, it is extremely difficult for people to work out whether there is an issue.

I acknowledge that there are perceived concerns, but that is an issue in itself. For example, there are no real issues about public board members getting involved in deals that they should not get involved in—I believe that there is no evidence of that happening—but we are still required to complete our entries in a register of interests, as are MSPs.

In a way, the issue is not whether there is any real bias, although I have been sent evidence that there is. For me, the issue is one of perception, and having confidence in the judicial system is important. We want justice delivered, but we also want justice to be seen to be delivered, which is very much about openness and transparency.

John Finnie: You are a former Judicial Complaints Reviewer. Can you give us an outline of the sort of complaints that you dealt with, and tell us whether they would inform this debate?

Moi Ali: Yes, I can. The difficulty that I had as the JCR was that people tended not to escalate complaints to me, because it was known that I had no powers and that there was nothing that I could do.

The complaints system is such that judges investigate complaints about judges and, at the end of that process, there is what can only be described as a little bit of window dressing. The final stage is with somebody called a JCR, which is set out in statute. That individual has no powers, so they cannot change or overturn a decision and cannot do anything about it at all. Their only power is to look at whether the complaints process was followed. The complaints process is simply about matters such as whether the person who was complained about wrote to the complainant within the five-day timescale or whether they sent a response within 10 days. The JCR does not look in detail at the complaint; rather, they simply look at whether the process was followed. That is very different from the system in England and Wales.

John Finnie: What sort of complaints did you deal with in that way?

Moi Ali: The complaints were about a wide range of issues from judicial conduct in the private world—the way in which judicial office-holders conducted themselves when not acting as, for example, judges—to things that happened in the courtroom, such as issues with their behaviour, rudeness, unsympathetic approaches or, sometimes, conflicts of interest.

John Finnie: Is there anything that we can learn from elsewhere? The petitioner has indicated that judicial registers operate successfully elsewhere and gives the example of Norway, which is often used as a comparator for Scotland. Are you aware of that system?

Moi Ali: I am not. I have to say that I am not an expert in registers of interest for the judiciary but I am passionate about openness and transparency in public life. For me, that is the fundamental issue. In many ways, this is not about a register of interests but about public office-holders in various guises, whether it is people like you in politics, people like me on boards and in public life or judges taking decisions about people’s lives. Is there a requirement on people who represent wider society to be open and transparent in our dealings? For me, there is a very clear answer: yes, we have to be open and transparent.

John Finnie: Okay, thank you.

The Convener: I would like to follow up on the point about having no powers other than to look at the process and see that it is being followed. What powers do you suggest that the JCR should have?

Moi Ali: A good example is the role that I have at the moment. I am the independent assessor of complaints for the Crown Prosecution Service in England and Wales. In a way, it is a similar job, in that I independently review complaints. The difference is that, when I was the JCR, I simply considered the process, whereas now I can overturn a decision and reach a different decision about the outcome of a complaint. I believe strongly that the JCR ought to be able to do that.

What I found frustrating as the JCR was that if, based on the evidence, I could not understand how a particular decision had been reached, I had no power to say, “That is nonsensical; it needs to be looked at again”. I could say only, “Well, you followed the rules, therefore I do not uphold the complaint”.

I think that the JCR ought to have the power to consider the complaint, reach a different outcome and have a conversation with the Lord President about what can be done to remedy that complaint, instead of simply ruling on whether the process was followed or not.

The Convener: When you say, “overturn a decision”, do you mean the decision of a case where there might be an appeal pending?

Moi Ali: No. It is important that there is a distinction between legal decisions that judges make—clearly, we have to have an independent judiciary, and nobody should get involved in overturning legal decisions—and service elements. So, for example, if a judge is rude to somebody in court, that is not a legal decision, that is a service decision. I do not believe that any non-judicial office-holder ought to overturn legal decisions. However, if, after considering the evidence in a case, the JCR cannot understand why judges have not upheld a service complaint, he or she ought to have the power to ask the Lord President to consider that complaint again. Of course, though, they should certainly not look at legal decision making in that way.

The Convener: So, you are saying that, if the JCR is considering a complaint—one that might involve something about rudeness, or something that happened in the court that was not quite right—and the judiciary has, in effect, said, “We are not going to do anything about it”, you feel that the JCR should have the power to say, “No, I think this is a legitimate claim” and ask for it to be looked at again?

Moi Ali: Yes, otherwise what is the point of having a JCR? What is the point of having a third tier when the third tier cannot actually do anything? That is why I describe it as window dressing: if you can look at a complaint but you cannot do anything about it, why look at it?

The Convener: That is a helpful clarification.

James Kelly (Glasgow) (Lab): I draw the committee’s attention to my previously declared interest, which is that my brother, Tony Kelly, is a sheriff within the sheriffdom of Glasgow and Strathkelvin.

I would like to follow on from what has just been discussed and give a bit more context to the issue of service complaints. You gave the example of a judge being rude. Can you give any other examples of what would merit a service complaint?

Moi Ali: Let me think. It could be behaviour outside the courtroom. I vaguely remember a complaint where somebody was shouted at by a judge while she was out walking her dog—she was in an isolated place and she felt afraid. I also vaguely remember—you will have to forgive me; it was several years ago that I was the JCR—a complaint where somebody felt that they had been a victim of disability discrimination as their requirements had not been taken on board when they gave evidence in court.

Those are some examples, but it covers a wide range of things. Really, any concern that somebody has that is not a legal concern about their case is a service complaint. It could be to do with the conduct of a judge. If somebody feels that a judge gave one witness more airtime than another, that would be a legal complaint, because it is up to judges to decide how to handle evidence in court. However, if somebody feels that a judge was rude to them but perfectly polite to somebody else, that would be a service complaint.

It is quite difficult to give examples because cases are so varied.

James Kelly: Does a service complaint pertain to a specific legal case or can it relate to a judge’s general conduct? You gave the example of something that happens outside the courtroom.

Moi Ali: It can relate to general conduct inside or outside the courtroom. It can be about a specific instance or it can be more general. For example, there could be a concern about bias because a judge is a member of a particular society. It covers a wide range of things.

James Kelly: Okay. I suppose the key questions that the petition raises are whether there is a risk of bias in the judicial system and whether the safeguards in the system are adequate. Those safeguards are: the judicial oath; the “Statement of Principles of Judicial Ethics for the Scottish Judiciary”; and the powers to investigate judges. How effective are they in ensuring that there is no bias in the system and that no conflict of interest arises?

Moi Ali: I will pick up on the third of those things, because my field of expertise is the complaints process, and that is where my concerns lie. We have a system in which, if there is a complaint about a judge, it is investigated by another judge. We live in a small country and we have a small group of judges who are all known to one other. It is quite a difficult scenario when people have to investigate people that they know. Given that the oversight role of the JCR is a powerless one, I do not think that we have a robust complaints system, and therein lies the problem.

Over and above all of that, however, even if we had a really good, robust system for investigating complaints that had genuine independent oversight, there would still be a requirement for a register of interests. This is the 21st century. Since the 20th century, public board members and politicians have had to register interests, and it is normal, commonplace practice. I cannot understand why we do not require one certain group of people who take very important decisions to do that.

James Kelly: You believe that, because judges are allowed to investigate within their own pool, the process is weak and is not fair or transparent. Do you have any evidence or examples to back that up?

Moi Ali: Their findings are not seen outwith their small circle. While I was the JCR, I was also involved in the system in England and Wales. As the JCR, I did not see the outcome of complaints unless they came to me, whereas I found that, when people challenged decisions in England and Wales, there was genuine independent oversight. There, a panel of people consider the complaint and can overturn the finding or impose a more serious sanction, which has to be accepted by the judiciary. In addition, the findings of investigations are published on a website. It is a bit like the situation with complaints about other professional groups such as doctors, nurses, surveyors and solicitors—in those cases, findings are publicly available and people can see the outcomes. In Scotland, that does not happen with complaints about the judiciary. You cannot look at how many complaints there have been and what the outcome was for particular judicial office-holders. That simply does not happen here, but it happens elsewhere.

Liam McArthur (Orkney Islands) (LD): Ms Ali, you have set out the case for a register of interests. Of course, the petition has already secured the achievement of a register of recusals. What transparency benefits has that register brought to the system, and what is the rationale for going beyond that and having a register of interests? What would a register of interests give you that the register of recusals will never be able to give you, however well it operates?

Moi Ali: The register of recusals is welcome because it is a step forward and probably would not have happened if it had not been for the petition. There are concerns about it, though. For example, as I understand it, there are no justices of the peace on the list. I found that surprising, given that JPs have another life and lots of contacts in their other life, and in their day job and so on. It is surprising that there have been no recusals there.

For me, the more fundamental issue is that it is up to the judicial office-holder to take the decision. They know what their own interests are, and nobody else has that knowledge. They decide on a case-by-case basis, and if they do not recuse themselves, the people before them do not have the information to challenge them, whereas, if there was a register of interests, the process could be more proactive. People could look at the register, then go to court and say, “Sorry, but I think there’s a conflict of interest here. I’ve consulted the register of interests and you have a connection with this or that, and that concerns me.” With the register of recusals, it is up to the judicial office-holder to decide whether there is a conflict of interest, which takes the power out of the hands of the people who appear before the judiciary. I suppose that that is my concern.

I sound a bit like a stuck record, but there is a fundamental principle about openness and transparency that I feel should extend throughout society and public life. Even if the register of recusals worked—I am not convinced that it does—there is still a need for a register of interests.

Liam McArthur: With both the register of interests and the register of recusals, would there not be the same issue of reliance on the individual either to recuse themselves or register their interests? With a register of interests, we would therefore not necessarily find ourselves much further forward.

Moi Ali: I think that we would, because, if clear criteria were set out, and there were clear requirements for what needed to be registered and what did not, judicial office-holders could meet those requirements and register their interests, and that information would then be in the hands of everyone. Anyone could use that information to challenge whether there was an interest in a case. Without a register of interests, we are relying solely on the judicial office-holder to take that decision, and the people appearing before that person do not have that knowledge to make that challenge.

A register of interests would be a step forward because it would be about sharing information that, at the moment, only the judicial office-holder knows. It might be that they feel that they do not have an interest, but somebody else, if they had that information, might feel that they did. At least we could have an open and transparent discussion about it and resolve it before the case. What we do not want is for people to turn up on the day and find that the judicial office-holder, having looked at the papers for that day, has concerns that they might have an interest. By having those interests publicly declared and available in advance, a lot of that work can be done in advance. I cannot see any disadvantage to such a register; I can see only advantage.

Liam McArthur: There would still be an issue around whether a recusal is appropriate, and one can certainly envisage circumstances in which there could be a difference of opinion about whether an interest merited recusal in a particular case. Ultimately, the decision will have to be taken by somebody, but should it be taken by judges, by individual sheriffs or by the Lord President? Is there a mechanism for arbitrating the matter, or will the decision still rest, as it does at the moment, with individual judges and sheriffs?

Moi Ali: Goodness—you are asking me very detailed questions on issues that I think need to be looked at down the line. The first issue is whether the principle is that people ought to register their interests. If so, let us then look at the detail of how that might work. Of course, there will be scenarios in which one party feels that there is an interest and the judicial office-holder feels that there is not but, if there is a register, there can at least be a discussion. At the moment, that discussion is not even happening, because it is purely for the judicial office-holder to decide and to recuse, without there being an opportunity to discuss or challenge that decision.

Personally, I do not have an issue with the judicial office-holder taking the decision, but it must be taken openly and transparently, and there must be an opportunity for challenge before a case goes ahead.

Liam McArthur: There could be a concern that individuals might see an opportunity to challenge the validity of a judge or sheriff presiding over a case, irrespective of the circumstances of their case, because there would be two separate processes running in parallel. I am sure that there are wider arguments, but there might be a concern that we would have a register that opens up a line of attack on members of the judiciary, which could distract from the facts and circumstances of individual cases.

Moi Ali: I will give you an example of a similar situation. For many years, I sat as the chair of disciplinary panels for nurses and midwives, and similar issues came up then. Some of the panel members would know people from a particular health board or health trust, and they would have to declare that openly in a hearing and set out what they believed that their interest was. The declaration could be challenged and, ultimately, the panel that was sitting on the case would decide whether there was an interest. If the “defendant”—in inverted commas—felt that there was an interest, they could have the decision judicially reviewed. In practice, the process was straightforward: somebody would declare an interest and there would be a discussion about whether it was a material interest. In probably all cases, a view was reached about whether there was a material interest, and the case would either go ahead or be assigned to a different panel on another day. However, the process did not seem to pose a particular problem, so I cannot see that it would not work in practice. There might be challenges but, if we had rules that set out what would happen if there was a challenge, there is no reason why there should be any particular difficulties.

Rona Mackay (Strathkelvin and Bearsden) (SNP): I will you ask a bit more about judicial independence. The Lord President and the Scottish Government argue that judges should not be treated in the same way as other branches of Government, because they have an independent role that is protected in statute. You have said that you believe in judicial independence, so do you think that a register could compromise that?

Moi Ali: No, I do not. Judicial independence and judicial accountability are both absolutely essential to a democratic society, but there is a clear distinction between the two and they are very different. I would not want to live in a society in which politicians, for example, interfere in judicial decisions. That is why we have an independent judiciary and we should all make sure that that independence is maintained.

Accountability is a different matter altogether. Being accountable for fair decisions is important and demonstrating that you are impartial is an important part of accountability. We want impartial judges, but we also want judges who can demonstrate that they are impartial. To me, a register of interests is an opportunity for judges to do that.

I think that it actually enhances the judicial oath. It says, “Not only do we have integrity, not only are we independent, not only are we impartial, but we are demonstrating that. We have nothing to hide. Here are our interests, laid out.” There is no conflict at all between independence and accountability.

Rona Mackay: Do you have an opinion on why judges are reluctant to have such a register? Do you think that they think that they would be compromised, or is it that they just do not want to be accountable? Do you know why they are resistant to the proposal?

Moi Ali: I do not understand it. Traditionally, the judiciary in Scotland is quite conservative and is steeped in tradition. Those are not, in themselves, bad things, but society has moved on, and I think that the judiciary has failed to keep in step with that. The benefit of the proposal is that it provides members of the judiciary with an opportunity to accept that they are in the 21st century and that they should start to do some of the things that other people in public life have done for quite a few decades, which is to be more open about their interests.

I do not know the what the reluctance is. I am not saying that judges have anything to hide; I am simply saying that they should be more positive about the proposal and show that they do not have anything to hide.

Rona Mackay: Do you think that it comes down to a resistance to change and a wish to stick to the traditional way of doing things?

Moi Ali: I suspect that that is the reason. I think that we can all be a little bit resistant to change and sometimes need a little bit of encouragement in that regard.

The Convener: I have been looking into the risk of abuse. On the surface, a lot of what is being proposed sounds sensible, but, when you get into the detail of it, it perhaps does not seem so sensible. The issue of JPs not being on the list seems strange, given that they are dealing with a local community and they could well have relevant connections there. That certainly seems like something that should be looked at further.

I want to go into the detail around the issue of looking at a judge’s private life. For example, if someone who has nothing to do with a case and to whom the judge has no connection has blocked a judge’s car and he cannot get out and is being rude to the person, would that be a complaint that would be upheld, perhaps on the ground that a judge should not be rude to anyone?

Moi Ali: In all sorts of roles, it is common for one’s conduct in one’s private life to be subject to complaints. I am sure that, as an MSP, you are familiar with that. The behaviour of an MSP or a board member in their normal life outwith their day job can be subject to complaints, just as the behaviour of doctors, nurses, dentists and people in a range of other professions can be. That is normal. However, I do not see the connection between that and the register of interests. What you are talking about is part of the complaints process. It is the sort of complaint that, I suspect, would not be looked into. I have seen similar complaints that have not been looked into by the judicial office.

The Convener: I suppose that I was going back to the JCR’s powers. You said that should extend to looking at a judge’s conduct in their private life.

Moi Ali: The rules that govern complaints against the judiciary in Scotland cover that. People can make complaints about judges’ conduct in their private lives as well as their conduct in the courtroom. However, from my former experience as the JCR, I can say that very few complaints about conduct outwith the courtroom are progressed.

The Convener: With regard to the suggestion that every complaint should be published, whether it is upheld or not, would that be open to abuse, given that people can make vexatious complaints about someone who is in a position of power, as judges are in relation to their ability to determine issues around people’s liberty? Should every complaint be published, or should only those that are upheld be published?

Moi Ali: I have no issue with only upheld complaints being published. At the moment, they are not. I do not think for one minute that every complaint should be published. However, if something has gone through the whole process and, at the end of that, it has been upheld, I do not quite understand why that complaint is not published in the way that it is in England and Wales or the way that it is in Scotland in relation to other professional groups.

The Convener: What kind of things do you think should be included in the register that are not included in it just now? I think that I read in your submission—it might have been in an interview—that you thought that relatives should be included.

Moi Ali: That is right. If people have family connections in the legal world, that ought to be declared. You do not want a scenario in which a judge has a daughter who is a lawyer and they are in the same courtroom together, because that could lead to a perception of bias one way or the other. I think that relevant family connections should be declared. I am not talking about people having to spell out who all of their family members are and what they do. However, if there is close family connection in the legal field, that ought to be declared, because that is relevant to whether people’s perception of fairness.

The Convener: Would that not happen just now? At the moment, a judge might say that his wife’s job is not a relevant interest because, for example, she works for the national health service, but, if a case comes up that involves the NHS, the judge would say, “Sorry, there is a conflict of interests here.” Is it not the case that what you are suggesting involves almost second-guessing what might be a registrable interest?

Moi Ali: No, because I do not think that the fact that a family member works in the NHS would be a registrable interest. That would be dealt with by a recusal at the time. There is a need for both things to be possible. A relevant interest that would be registered in advance would be a legal link—somebody working in a different part of the legal system or the wider criminal justice system, for example. However, the situation that you are describing—in which a judge who has a family member who works in the NHS is presiding over a case that involves the NHS—would be dealt with by way of recusal.

The Convener: I would like to address the issue in a wider sense. Our judges are the ultimate upholders of the law. They can give life sentences and they are involved on a daily basis with people whom you and I would not like to meet. We already know that our prisons are battling with serious organised crime. Do you have any concerns about the possibility that the level of detail that you are asking to be submitted to the register of interests could put our judges in a position in which they felt threatened or, indeed, in which they were threatened?

Moi Ali: I do not understand how that could happen. For example, in my job with the Crown Prosecution Service, I deal with complaints from defendants, people who are imprisoned and people who have committed serious crimes. I have entries in publicly available registers of interests on a number of different websites. All that information is available for anyone to look up. I do not understand how that would lead to threats being made. That certainly has not happened to me. I do not follow that argument.

The Convener: I was suggesting that members of the judiciary are in a different position from employees of the Crown Office and Procurator Fiscal Service, as they should be. A judge is the ultimate determiner of a sentence. He or she will decide if your liberty is going to be taken away from you and you are going to be sent to prison. That is serious. Do you have any concerns the register of interests, in the form that you are suggesting that it should be implemented, would compromise their safety?

Moi Ali: No, I genuinely do not. I certainly would not be pushing for anything that I felt would put people in danger. I cannot conceive of any situation in which a register of interests could be used in any way that would place somebody in danger. It is simply a list of interests—it might state, for example, that somebody owns a significant number of shares in a company, is a member of a particular group or society in a capacity that might impact on their judicial role, or has family connections in the criminal justice system.

A lot of judges publish such information already in relation to the various roles that they undertake, and that has not—to my knowledge—placed anybody in danger. I am afraid that that concern is a complete red herring. I genuinely cannot see how a register of interests could be misused to put somebody in danger. I just cannot see what information it might contain therein that would create such a risk.

The Convener: You say that judges already give that detail, which raises another question. Peter Cherbi helpfully provided information on that, and I was struck by the level of detail that is already disclosed—which, as you mentioned, includes information on shares.

Such information is covered just now. However, we know from our work on this committee and on the Justice Sub-Committee on Policing that serious organised crime is always a step ahead. We always need to catch up with the latest way to put pressure on criminals, and to look at where criminal activities can flourish and how they can be halted. That is the difference between the judiciary and COPFS. Do you accept that there is a difference?

Moi Ali: Yes, of course. My response to your question is that, if someone involved in serious crime decided that they wanted to have a go at a judge who had locked them up, they would not be deterred by the fact that there was not a register of interests. They would not think, “Oh well, I won’t bother then.” If somebody has set their heart on doing someone harm, that is—regrettably—going to happen. It will not be prevented by there not being a register of interests that shows that judges are open and accountable. In fact, it is probably quite the reverse: if judges’ esteem is enhanced by the fact that they are operating more openly and transparently, that will raise the standard of judicial office-holders and enhance public trust and confidence in their role.

I am afraid that, if people are hell-bent on doing bad things, they are going to do those things, whether or not a register of interests exists. I do not, therefore, quite follow the argument that is being made.

The Convener: I suppose that it is a question of balance. How far can we move towards ensuring that there is maximum transparency? We must take into account that, if we go over the line and judges are required potentially to disclose so much about their private life, that might put not necessarily them but their friends and relatives in danger, as they might be open to being blackmailed or whatever. All those things are possible. Have you thought about that at all?

Moi Ali: Yes, I have thought about that, and my answer is the same. We are not asking judges to publish information on where they live or detail that would place them in any danger. We are simply saying that, if they have business dealings that might be relevant to their role or family connections who are part of the criminal justice system, which might cast doubt on their decision making, such information ought to be declared in a register of interests. In the same way, you and I have to publish similar details of interests that might impact on our roles and on perceptions about our impartiality.

I do not believe that the proposed register would create any danger or difficulty. If I genuinely believed that that was the case, I would not support it; I would not wish to put anybody in danger. I genuinely do not think that there would be any danger at all in having a register—in fact, it is quite the reverse. If trust is enhanced, that surely has to be a good thing.

The Convener: If there was a failure to disclose, what would the sanction be?

Moi Ali: It would be the same as what happens now: the complaints system would be used. A complaint would be lodged, and it would be investigated. I would like to see the complaints system changed, but perhaps that is for another day. There is a complaints system and a clear set of rules, and that system would be used to investigate any complaint about a failure to declare an interest.

The Convener: Would failure to disclose be a criminal offence?

Moi Ali: It is not a criminal offence at present. The complaints procedure is not currently a criminal process, and I am suggesting that that procedure could be used to investigate such a complaint. It would be an internal disciplinary matter for the judiciary.

My reluctance to be pinned down on the detail is due to the fact that this is not my petition. I am here because I support, in principle, the notion of greater openness and transparency. A lot of these questions concern detailed issues that would need to be teased out if the committee decides to take the proposal forward. In my view, it is workable, given that it works in other areas of public life. However, the workings and detail of the proposal would need to be determined, and those questions are not for me to answer; the judiciary would need to look at those issues and consult widely on them.

I see no reason why the proposal could not work. It would not have to involve an extra layer of criminal process; the internal system could be used.

The Convener: For the avoidance of doubt, your evidence today has been very helpful. I appreciate that you support the principle of the proposal but, for the committee, the devil is in the detail, and we have to look at that. Thank you very much.

Liam Kerr (North East Scotland) (Con): I have a brief supplementary. For complete transparency, I declare that I am a practising solicitor who is registered with the Law Society of Scotland and the Law Society of England and Wales.

The convener suggested that a register might increase transparency and thus public confidence in decisions. However, one can formulate a scenario in which a decision is handed down that might seem—let us say—to be unduly lenient, and the information in the register might show that a judge has another role that could arguably be said to have influenced the decision—at least, the optics might suggest that that is the case. In such a scenario, could transparency undermine confidence in a decision in a way that would not currently happen?

Moi Ali: There may well be cases in which that happens, but people ought to be open to challenge and scrutiny. I genuinely think that, by and large, by laying things bare and being open, credibility is enhanced.

You are right to suggest that, on occasion, people might say that a decision is concerning because of a certain link. Nonetheless, do we not want a society in which people challenge things if they do not look right? It does not mean that they are not right but, in all areas of life, we need to challenge things that may not appear, on the face of it, to be right.

John Finnie: I have a supplementary. It is three weeks short of seven years since the petition was first introduced to Parliament. We are taking evidence today, and we have received written evidence on the matter. The original petition related to pecuniary interests. A lot has been said about bad guys and all sorts of threats, but such issues are perhaps more likely to surface in civil cases than in criminal cases in which judges deliberate.

Given your experience in various other bodies, do you think that there has been any reputational damage to our judiciary as a result of their apparent resistance to move on something—namely, openness and transparency—that is seen as a matter of fact in many jurisdictions?

Moi Ali: Yes, I think that there has been damage; one has only to look at the headlines in the newspapers to see that. Without a shadow of doubt, it has created the perception that there is something to hide. That is unfortunate, because I suspect that, in the majority of cases, there is nothing to hide. That is why I do not understand the resistance to this change. I think that there is simply a concern about things changing, and a lack of acceptance of such change.

Damage has been caused, and there is nothing to lose by publishing judges’ interests—it would definitely enhance the standing of the judiciary and build public trust and confidence. At present, the nature of the headlines concerns the question of what there is to hide, and people then dig around to try to find out. If all the information were published, it would put a stop to that practice.

Shona Robison (Dundee City East) (SNP): Good morning. Lord Carloway said in his written evidence that a register of financial interests could “have a damaging effect on judicial recruitment.”

It is not necessarily the case that anyone would have anything to hide, but there may be such a perception as a result of the extended scrutiny. Would a register of interests have a negative effect on judicial recruitment in any way?

Moi Ali: I honestly do not think that it would. If a lawyer were put off by having to be open and transparent, that would raise questions about their suitability to be a member of the judiciary. If the need for transparency put people off, that might not be a bad thing because they might not be the sort of people whom we want to be sitting in judgment.

By and large, a requirement to register interests does not put large numbers of people off wanting to sit on public boards or build a career in politics. It has not deterred me or any of you—we are all here today, and we all publish declarations in a register of interests.

I do not agree, therefore, that it necessarily follows that people would be put off becoming judges. People do that job because it is a public service and a very worthwhile thing to do. I would hope that the sort of people who want to do that job would want to do it in an open and transparent way.

Liam Kerr: On that point, I want to raise a theoretical possibility. Let us say that Scotland has a register but England—as is currently the case, although a register has been proposed—does not. Is it theoretically possible that England would become a more attractive jurisdiction in which to become a judge if one did not share the belief that such a degree of transparency would be ideal?

Moi Ali: That argument could be applied in reverse. At present, members of the judiciary in England and Wales have a very robust complaints system, and findings against them are published on a website. That has not caused hordes of members of the judiciary to move north of the border to avoid the system. My answer is no, it would not.

Fulton MacGregor (Coatbridge and Chryston) (SNP): I have a supplementary on an earlier point relating to transparency. I am interested in how the register might impact on the communities that we represent. We often hear that certain communities have less faith in the criminal justice system as a whole, perhaps because of religion, ethnicity, age or social demographics. How might the introduction of such a register, and the transparency that you describe, impact on certain groups?

Moi Ali: I think that it would impact very positively. You are quite right—a number of groups in society are suspicious of the judiciary and feel that it is a closed world that is all very incestuous. It is a world with which they are not familiar, and there is a lot of concern about judicial decisions. The introduction of greater transparency could only have a positive impact in that regard.

If a group of people say, “We’re not going to be open about that. You are open about that, but we’re not going to be,” that creates a suspicion that there is something to hide. If we say that there is nothing to hide and we are quite happy to publish that information, it can do nothing but enhance the standing of judges across society.

Fulton MacGregor: In your role, have you come across any examples of where a situation might have played out differently had there been a register of interests in place?

Moi Ali: It is difficult to think of specific examples. In general, when people get to the stage of escalating their complaint through to the very top of a complaints system—whether it concerns the police, prosecutors or judges—they have lost faith in the process. Anything that can restore faith is a good thing.

Although I cannot think of specific examples in which a register of interests would have helped, it would help in general because it is all about building the standing of judges. A register of interests would clearly do that, and would therefore lead to less of a perception that there is something to hide, whatever that may be.

The Convener: That concludes our questioning. I thank you for a very worthwhile session and for appearing on your own without the petitioner.

That concludes the public part of today’s meeting. Our next meeting will be on Tuesday 26 November, when we will begin our consideration of the Children (Scotland) Bill.

10:50 Meeting continued in private until 11:26

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

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COURT OF SENATORS: Top judge hires FIVE new judges – after claiming register of judges interests creates difficulty in recruitment – papers reveal new judge gave legal advice to Scottish Police Authority secrecy block against ex Board member’s files request for Holyrood Police oversight probe

Five new judges – after Lord Carloway claimed difficulty in recruitment. ONE DAY after Holyrood’s Justice Committee considered claims by Scotland’s top judge that judicial recruitment would be hampered by bringing in a register of judges’ interests – the Judiciary of Scotland have announced five new ‘senators’ for Scotland’s top court – the Court of Session.

The five new judges – Douglas Fairley QC, Anna Poole QC, Sean Smith QC, Robert Weir QC and Sheriff Peter Braid – can expect salaries of up to £215K a year, will gain the terms “Senators of the College of Justice” and will sit in the Court of Session & High Court of Justiciary.

The latest round of judicial appointments – announced one day after Holyrood MSPs discussed claims by Lord Carloway – that raising issues of judicial transaprency may cause him difficulty in recruting judges for the Court of Session and the High Court – come after a raft of judicial appointments in the past few months.

In September, the Judicial Office announced the appointment of seven Summary Sheriffs who can expect a salary of £110,335 per annum – Patricia Prycem Charles Lugton, Roderick Flinn, Sukhwinder Gill, Michael Higgins, Hugh McGinty and Colm Dempsey – to various courts around Scotland.

And in August – the Judicial Office announced the appointment of eight full time Sheriffs who can expect £140,289 a year – Paul Reid, Tony Kelly, Sara Matheson, Joseph Hughes, Fergus Thomson, Colin Dunipace, Mhari Mactaggart and Jillian Martin-Brown – on the recommendation of the First Minister.

Lord Carloway (real name Colin John Maclean Sutherland) – who earns £234K a year – also refused to give evidence at the Justice Committe, and demanded to know of questions in advance should he have to address further queries from MSPs who have been investigating a cross party backed petition calling for a register of judicial interests – Petition PE1458: Register of Interests for members of Scotland’s judiciary – originally filed at Holyrood’s Public Petitions Committee in October 2012.

Lord Carloway’s letter to Margaret Mitchell MSP states “I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.”

Among the new appointments to the Court of Session after a closed shop Judicial Appointments Process – is Anna Poole QC – who sat part time as a UK First-tier Tribunal judge (Social Entitlement Chamber) from 2014 and recently took up a judicial position as a salaried judge of the Upper Tribunal of the Administrative Appeals Chamber on 30 April, 2018.

However, a biography published by the Judicial Office for Anna QC  as part of the judiciary’s announcement of the new judicial appointments – omits key details of Ms Poole’s representation of the Scottish Government, Crown Office & Procurator Fiscal Service (COPFS), the Scottish Police Authority (SPA) and others, in cases and issues which have been of significant public interest and concerns – and would be expected to be entered in a register of judges’ interests – if one existed.

Details of Ms Poole’s previous legal representation of one controversial public authority were revealed in papers obtained from the Scottish Police Authority (SPA) via Freedom of Information reques.

The information disclosed by the Scottish Police Authority reveals the same Anna Poole QC was engaged by the SPA to provide ‘supplementary legal advice’ for the controversial Police Regulator’s successful attempt to block a request from former board member Moi Ali for access to information.

The Scottish Police Authority initially did not disclose the identity of the QC in response to the FOI request – and only did so after a review was requested of their decision to keep Ms Poole’s identity a secret.

The Scottish Police Authority eventually revealed it had also shared parts of the legal advice with the Scottish Government – who were also criticised by MSPs for their role in poor management at the Scottish Police Authority.

Information released under Freedom of Information by the SPA’s Information Management team disclosed: The SPA can confirm that legal advice was sought from DLA Piper, Solicitors, in relation to the SPA holding Committee meetings in private. The cost of this legal advice came to a total of £1,408.68 (inc VAT).

The SPA can also confirm that legal advice was sought from DLA Piper, Solicitors, in relation to a request for information from Ms Ali.

The cost of this legal advice came to a total of £5,875.08 (inc VAT). Parts of this legal advice procured by the SPA was shared with the Scottish Government.

In addition, the SPA obtained supplementary legal advice in relation to this issue. The cost of this supplementary legal advice came to a total of £4,800.00 (inc VAT).

The information contained in the legal advice procured by the SPA as aforesaid is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings and is, therefore, exempt from disclosure in terms of Section 36(1) of the Freedom of Information (Scotland) Act 2002.

Sections 36(1) of the Freedom of Information (Scotland) Act 2002 is not absolute exemption and as such, the public interest in disclosing the information must be weighed up against the public interest in maintaining the exemption.

Section 36(1) Public interest considerations favouring disclosure:

Disclosure would provide an understanding around the decision making in relation to the above matters.

Section 36(1) Public interest considerations favouring non-disclosure:

Disclosure of the information requested could prejudice the effective operations of SPA. SPA staff have to be able to discuss certain matters behind closed doors, with an expectation of privacy in those discussions. If that expectation were to be eroded it may affect the free and frank exchange of views and as such inhibit decision making.

In response to the request for review of the decision to keep the QC’s identity a secret, the Scottish Police Authority disclsoed the identity of Anna Poole QC as a provider of ‘further legal advice’.

The SPA’s Information Management Team stated: Having carried out a review of the initial response I am satisfied that the information contained in the legal advice procured by the SPA is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings and is, therefore, exempt from disclosure in terms of Section 36(1) of the Freedom of Information (Scotland) Act 2002, we therefore uphold this part of the response.

I can advise that Miss Anna Poole QC was instructed to provide further legal advice.

In response to a second FOI request, the Scottish Police Authority disclosed further information revealing they had shared the legal advice with the Scottish Government.

The Scottish Police Authority disclosed the following: The SPA can also confirm that legal advice was sought from DLA Piper, Solicitors, in relation to a request for information from Ms Ali.

Parts of this legal advice procured by the SPA was shared with the Scottish Government.

In addition, the SPA obtained supplementary legal advice in relation to this issue.

The information contained in the legal advice procured by the SPA as aforesaid is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings and is, therefore, exempt from disclosure in terms of Section 36(1) of the Freedom of Information (Scotland) Act 2002.

Sections 36(1) of the Freedom of Information (Scotland) Act 2002 is not absolute exemption and as such, the public interest in disclosing the information must be weighed up against the public interest in maintaining the exemption.

Section 36(1) Public interest considerations favouring disclosure:

Disclosure would provide an understanding around the decision making in relation to the above matters.

Section 36(1) Public interest considerations favouring non-disclosure:

Disclosure of the information requested could prejudice the effective operations of SPA. SPA staff have to be able to discuss certain matters behind closed doors, with an expectation of privacy in those discussions. If that expectation were to be eroded it may affect the free and frank exchange of views and as such inhibit decision making.

And your further response of 13th November:

I can advise that Miss Anna Poole QC was instructed to provide further legal advice.

The SPA are the owner of the legal advice shared with the Scottish Government, and therefore we are not required to seek permission should we wish to disclose to a third party.

The Scottish Government did not advise of any further disclosure.

The information access request by former SPA Board member Moi Ali – who resigned from the Scottish Police Authority after raising concerns regarding the SPA’s lack of transparency – came prior to hearings hearing of the Scottish Parliament’s Public Audit & Post Legislative Scrutiny Committee (PAPLS)

Video footage of Ms Ali raising concerns during an SPA Board meeting – concerns which ultimately led to the Scottish Parliament’s investigation of the Police Authority which provides oversight of Police Scotland, can be found here: Scottish Police Authority 15 December 2016 meeting Governance framework discussion

Issues raised by Moi Ali in relation to the Scottish Police Authority were taken on by the Scottish Parliament’s Public Audit and Post Legislative Scrutiny Committee, leading to hearings and ultimately, the resignation of the SPA’s Chairman Andrew Flannagan, and the exit of Chief Executive John Foley which is covered in more detail here: GONE EXEC’IN: Scottish Police Authority Chief Executive takes early retirement with pay-off, following resignation of ‘Kremlin’ Chair Andrew Flanagan – discredited board & Vice Chair who backed secretive top duo remain in posts.

A full report on the resignation of Andrew Flanagan, Chair of the Scottish Police Authority, can be found here: GONE KREMLIN: Chair of Scottish Police Authority resigns, lingers in office ‘until replacement found’ for discredited Police watchdog – focus now moves to ‘collective amnesia’ board who failed to support transparency crusading colleague

Video footage of a key hearing by the Public & Post Legislative Scrutiny Committee held on 20 April 2017 can be found here: Scottish Police Authority – Public Audit and Post-Legislative Scrutiny Committee – Scottish Parliament: 20th April 2017

A full report on the PAPLS meeting of 20 April 2017 can be found here: POLICING SECRETS: Former Scottish Police Authority board member Moi Ali invited to give evidence at Holyrood, after MSPs accuse SPA bosses of running Police watchdog like Kremlin ‘secret society’

A further appearance of current and former board members of the Scottish Police Authority before Holyrood’s PAPLS Committee on the 11th May2017  – established evidence in relation to a sequence of alarming events at the SPA – giving MSPs significant cause for concern of how the SPA Chair was in effect, personally running the Police watchdog as a “secret society”. Video footage of this hearing is available here: Public Audit and Post-Legislative Scrutiny Committee – Scottish Parliament: 11th May 2017

A full report on the PAPLS hearing of 11 May 2017 can be found here: UNFIT AUTHORITY: Chair of Scottish Police Authority “is not fit to continue on any public board” – says former SPA board member in evidence to Holyrood’s Public Audit Committee scrutiny of Police watchdog


Writing to the Convener of the Justice Committee – Scotland’s top judge Lord Carloway – claimed that raising the issue of a register of judges’ interests would create difficulties in recruiting judges, yet the day after Holyrood MSPs discussed Carloway’s letter, the Judicial Office announced five new judges for the Court of Session.

Lord Carloway’s  letter in full: Lord Carloway’s letter to Margaret Mitchell MSP

I refer to your invitation of 25 June to give evidence to the Committee in relation to the proposal for a judicial register of interests. This is a matter that has been the subject of parliamentary consideration for number of years, with the petition being lodged in 2012. Since then there have been a number of exchanges between the Petitions Committee and both my predecessor, Lord Gill, and myself. Both Lord Gill and I have given oral evidence to the Petitions Committee on this matter. For your convenience, I attach copies of the letters that Lord Gill and I have sent to the Petitions Committee, and also the transcripts of our oral evidence.

I appreciate that your Committee is constituted differently from the Petitions Committee, and that the topic may therefore be comparatively new to its members. There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee’s valuable time.

If, however, after consideration of everything that has gone before, it emerges that there are new substantive issues, I would be happy to address them. I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.

FIVE NEW COURT OF SESSION & HIGH COURT OF JUSTICIARY SENATORS FOR LORD CARLOWAY:

New judges appointed

Five new Scottish judges have been appointed and will take up position next year.

Her Majesty the Queen, on the recommendation of First Minister, has appointed Douglas Fairley QC, Anna Poole QC, Sean Smith QC, Sheriff Robert Weir QC, and Sheriff Peter Braid as Senators of the College of Justice.

Douglas Fairley QC and Anna Poole QC will take up appointment on 13 January 2020; Sean Smith QC will take up appointment on 17 February 2020; Sheriff Robert Weir QC will take up appoint on 6 April 2020; and Sheriff Peter Braid will take up appointment on 22 June 2020.

Douglas Fairley QC

Douglas Fairley was educated at Hutchesons’ Grammar School and Glasgow University. He graduated in 1989 with a First Class Honours LL.B. After combining a legal traineeship with part-time work as a professional orchestral clarinettist, he then worked as a solicitor for six years between 1992 and 1998. He called to the Bar in 1999, specialising in commercial and employment litigation. He has served as an employment judge in both Scotland and England (2009-2011), and as an advocate depute (2011-2015). He took silk in 2012 and, since 2015, has continued to work on a wide range of high-profile civil cases.

Anna Poole QC

Anna Poole was educated at Madras College, St Andrews and Oxford University. In 1996 she qualified as a solicitor (England and Wales) at Linklaters in the City of London, then as solicitor (Scotland) at Brodies. She called to the Scots bar in 1998. She became a QC in 2012, after serving as First Standing Junior Counsel to the Scottish Government. She sat part time as UK First-tier Tribunal judge (Social Entitlement Chamber) from 2014, and as arbitrator for MIB cases. In 2018, she was appointed UK upper tribunal judge (Administrative Appeals Chamber), sitting in Edinburgh and London. She is Chancellor of the Dioceses of Edinburgh and Argyll and the Isles.

Sean Smith QC

Sean Smith was educated at Flora Stevenson’s and at Broughton High School, Edinburgh. A graduate of Glasgow University, he was a fellow and lecturer in law at Emmanuel College, Cambridge between 1991 and 1996. He was admitted to the Faculty of Advocates in 1999, and took silk in 2012. He has been Standing Junior Counsel, variously, to the Scottish Government, to HMRC, and to the Office of the Advocate General. Between 2017 and 2019 he served as advocate depute.

Robert Weir QC

A graduate in both history and law, Sheriff Weir served his traineeship with Maclay Murray and Spens, Solicitors, before being admitted to the Faculty of Advocates in July 1995. He served as an advocate depute between 2005 and 2008, took silk in 2010, and was appointed a floating sheriff of South Strathclyde Dumfries and Galloway, based at Hamilton Sheriff Court, in April 2015. He has served as a temporary judge of the Court of Session since March 2017, and took up a position as a resident sheriff at Edinburgh Sheriff Court in April 2018, sitting as one of the specialist sheriffs in the All Scotland Sheriff Personal Injury Court.

Peter Braid

Educated at George Watson’s College, Sheriff Braid graduated from Edinburgh University in 1980 with first class honours, winning the Lord President Cooper prize for best student. He entered the solicitor branch of the profession, becoming a partner in Morton Fraser in 1985 and a solicitor-advocate in 1995, dealing predominantly with commercial litigation. He was appointed as a sheriff in 2005 and currently sits in Edinburgh. In 2015, he was appointed as one of the first appeal sheriffs in the Sheriff Appeal Court, and as a designated Personal Injury sheriff.

NEW SHERIFFS IN COURT

Paul Reid is a law graduate of the University of Strathclyde. In 1985 he started as trainee then assistant and latterly associate with Jno. Shaughnessy Quigley and McColl, Glasgow. He is a founding partner of Fleming and Reid, Solicitors Glasgow. He enjoys Rights of Audience before the High Court of Justiciary, the Court of Session and the Supreme Court. In 2009 he was appointed a part time Sheriff. He has previously held membership of the Scottish Civil Justice Council. He is presently a member of the Scottish Legal Aid Board.

Tony Kelly was appointed Summary Sheriff of Glasgow and Strathkelvin in 2016. A law graduate of the University of Strathclyde, he started his traineeship in 1990 with Messrs. Hannay, Fraser & Co, Solicitors, before becoming associate and then partner. Between 1997 and 2016 he worked with Taylor & Kelly, Court Solicitors in Coatbridge. He was granted Rights of Audience as a Solicitor Advocate in both the Court of Session and High Court of Justiciary in 2012. He was a First-Tier tribunal judge in the Social Entitlement and Immigration and Asylum Chambers. Mr Kelly is a visiting Professor in Human Rights in the University of Strathclyde and a Legal Member of the Parole Board for Scotland.

Sara Matheson graduated in law from Aberdeen University and qualified as a solicitor in 1992. She became accredited as a specialist in child law in 2005 and in family law in 2008.  Ms Matheson was appointed as a Convenor of the Additional Support Needs Tribunal in 2008 and was a founding partner of MTM Family Law in 2012. She was President of the Glasgow Bar Association in 2008 and was appointed as a Summary Sheriff at Airdrie in 2016.

Joseph Hughes is a law graduate of Edinburgh, Glasgow and Strathclyde Universities. Since 1986 he has been Managing Partner of J C Hughes Solicitors Glasgow. From 2004 he was appointed to the Mental Health Tribunal for Scotland, Health and Education Chamber, Pension Appeals Tribunals for Scotland, Scottish Solicitors Discipline Tribunal, NHS Tribunal for Scotland, Police Appeals Tribunal, Housing and Property Chamber, General Regulatory Chamber (Charity), Institute and Faculty of Actuaries Disciplinary Panel, Scottish Housing Regulator Appeals and SFA Disciplinary Judicial Panel. Mr Hughes has also held a number of non-executive, public and charitable positions.

Colin Dunipace is an Honours graduate of the University of Strathclyde. He began his career in 1988 with Barrowmans in Cumbernauld before establishing Dunipace Brown, Solicitors in 1993, where he remains a partner. He was granted extended Rights of Audience as a Solicitor-Advocate in the High Court in 2002. Mr Dunipace was a Council and Board member of the Law Society, and became a part-time Stipendiary-Magistrate in 2010 before appointment as a part-time Summary Sheriff in 2016. Since 2013 he has sat on various Tribunals, including as a fee-paid Judge of the Immigration and Asylum Chamber and being a Board Member of the SCCRC.

Fergus Thomson is a law graduate of the University of Edinburgh. He trained with Bell & Scott WS and qualified as a solicitor in 1996. He worked initially as a banking solicitor, with Dundas & Wilson and Maclay, Murray & Spens, and subsequently in litigation with DLA Piper. He also worked in structured finance with Bank of Scotland.  He was called to the Bar in 2004. A Writer to the Signet and Fellow of the Chartered Institute of Arbitrators, Mr Thomson is currently an Advocate in primarily civil practice.

Mhari Mactaggart is a law graduate of the University of Glasgow. She started as a trainee and became a partner with Robert Carty & Co in 1985. Ms Mactaggart then joined Milligan Mactaggart & Perkins Solicitors as a partner before becoming a senior partner with Mhari S Mactaggart Family Law Practice in 1996. Ms Mactaggart was appointed Part-time Sheriff in 2005. She went on to join Hamilton Burns WS in 2008 as a Consultant and Head of Family Law Team and in 2016 was appointed a Summary Sheriff in Ayr.

Jillian Martin-Brown was appointed as a summary sheriff in Tayside, Central and Fife in 2016. She has particular responsibility for the Problem Solving Court in Forfar. Prior to her appointment, she was a solicitor in private practice, representing the Scottish Prison Service at fatal accident inquiries throughout Scotland. She later worked as an advocate, developing particular expertise in the fields of personal injury and medical negligence. She was appointed as Standing Junior Counsel to the Scottish Government and served as an ad-hoc Advocate Depute for the prosecution service.

The Judicial Appointments Board for Scotland is an independent advisory public body with the role of recommending individuals for appointment to judicial offices within the Board’s remit including judge of the Court of Session, chair of the Scottish Land Court, sheriff principal, sheriff, and summary sheriff.

The First Minister has statutory responsibility for making recommendations to Her Majesty the Queen and is required by statute to consult the Lord President of the Court of Session before making her recommendation.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

 

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EVIDENCE, M’LORD: Scotland’s top judge complains Holyrood judicial transparency probe prevents him recruiting judges – refuses Justice Committee invitation to give evidence in cross-party backed Eight year register of judges’ interests investigation

Lord Carloway refused to meet MSPs. SCOTLAND’S top judge – Lord Carloway – has refused to appear before the Scottish Parliament’s Justice Committee to give evidence on proposals to create a register of judges’ interests contained in a cross party backed petition – Petition PE1458: Register of Interests for members of Scotland’s judiciary

Papers published late yesterday by the Scottish Parliament for next Tuesday’s 19 November 2019 meeting to discuss the petition, state the following: “The Committee also invited the Lord President of the Court of Session, Rt Hon Lord Carloway to give oral evidence on the petition. Lord Carloway declined the invitation, setting out his reasons in a letter to the Committee on 23 August 2019.”

Lord Carloway’s letter to Margaret Mitchell MSP – Convener of the Justice Committee – dated 23 August 2019 – only published late this week, states There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee’s valuable time.”

Lord Carloway – real name Colin John Maclean Sutherland – who earns over £220K a year – also complains in the letter to the Justice Committee – that raising the issue of judicial transparency & accountability right now is hampering his ability to recruit judges for well salaried judicial jobs which come with perks, international travel, speaking events, hospitality and gold plated pensions.

Carloway ended his letter to Margaret Mitchell with a barbed comment against the Committee’s proceedings: “We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.”

However, documents obtained via Freedom of Information legislation – SCTS Board members shareholdings – and from the Scottish Courts & Tribunals Service (SCTS) Annual Report – SCTS Board register of interests – reveal Lord Carloway and other members of the judiciary are already required to declare some interests in the SCTS Board which runs Scotland’s courts – reported in further detail here: FACULTY LORD: ‘Abbotsford Art & Faculty of Advocates trustee’ declaration of globetrotting £223K a year anti-transparency top judge Lord Carloway, with 20 years on the judicial bench – calls into question scrutiny of Court quango interests register

While Lord Carloway will not be present at next Tuesday’s evidence session, Justice Committee MSPs will take further evidence from Scotland’s first Judicial Complaints ReviewerMoi Ali – who has consistently backed calls for the creation of a register of judges’ interests for all members of Scotland’s judiciary.

Lord Carloway’s refusal to attend the Justice Committee marks the third refusal of a sitting Lord President to give evidence on Petition PE1458: Register of Interests for members of Scotland’s judiciary – which calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Previous refusals to give evidence on the judicial transparency proposal – saw Lord Carloway’s predecessor – Lord Brian Gill – twice refuse invitations to give evidence to the Public Petitions Committee,

Only upon retiring from the office of Lord President in May 2015, did Brian Gill later accept an invitation to appear before MSPs in November 2015, during which Brian Gill’s angry responses to questions from Public Petitions Committee MSPs ended up being dubbed “passive aggression” by the then Committee Convener – Michael McMahon.

Lord Carloway’s letter to Margaret Mitchell MSP, Convener of the Justice Committee, in full:

I refer to your invitation of 25 June to give evidence to the Committee in relation to the proposal for a judicial register of interests. This is a matter that has been the subject of parliamentary consideration for number of years, with the petition being lodged in 2012. Since then there have been a number of exchanges between the Petitions Committee and both my predecessor, Lord Gill, and myself. Both Lord Gill and I have given oral evidence to the Petitions Committee on this matter. For your convenience, I attach copies of the letters that Lord Gill and I have sent to the Petitions Committee, and also the transcripts of our oral evidence.

I appreciate that your Committee is constituted differently from the Petitions Committee, and that the topic may therefore be comparatively new to its members. There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee’s valuable time.

If, however, after consideration of everything that has gone before, it emerges that there are new substantive issues, I would be happy to address them. I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.

This is not the first time Lord Carloway has declined to attend the Scottish Parliament’s Justice Committee to give evidence.

In 2016, Lord Carloway was accused of stifling a Justice Committee inquiry into the Lord Advocate and Crown Office and Procurator Fiscal Service by refusing an invitation to give evidence to MSPs.

The Herald newspaper reported Lord President, Lord Carloway, wrote to every level of the judiciary telling them he has refused to give evidence to the Justice Committee’s explosive probe into the Crown Office and Procurator Fiscal Service (COPFS) – with a clear hint the Lord President’s letter was to discourage others from attending the Justice Committee’s investigation of Scotland’s prosecution service.

He said the Scottish Courts service as an institution should give evidence to the committee, rather than individual members of the judiciary, even retired ones.

After the intervention, the SJA pulled out of its scheduled appearance at today’s committee.

The behind-the-scenes activity is understood to have troubled the committee’s convener, Conservative MSP Margaret Mitchell, who at the weekend told a meeting of JPs she would be concerned if there was a perception that freedom of speech was being restricted.

Opposition parties are also privately uneasy about a possible ‘chilling effect’.

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee in a hard hitting evidence session during September 2013,and gave her backing to the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

JCR Moi Ali gives evidence to Scottish Parliament on a proposed Register of Judicial Interests

Video footage and a full report on Lord Brian Gill giving evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests – Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

Evidence of Lord Gill before the Scottish Parliament 10 November 2015

Later, in June 2017 – Lord Carloway (real name Colin John MacLean Sutherland) did accept an invitation to give evidence at the Public Petitions Committee.

However, Carloway’s position relied on attacking the media, court users, and a demand that judges essentially be exempt from the same levels of transparency applied to all other public officials.

The judge’s appearance at the Public Petitions Committee was widely criticised, after Lord Carloway withered during detailed questions by Alex Neil MSP on serious issues of senior judges failing to declare significant conflicts of interest.

Video footage and a full report on Lord Carloway (Colin Sutherland) giving widely criticised evidence to the Scottish Parliament in June 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

Lord Carloway evidence on Register of Judges interests Petitions Committee Scottish Parliament 29 June 2017

In May 2018, the Public Petitions Committee rejected Lord Carloway’s claims of an “unworkable” register, with MSPs ultimately backing the petition after a six year investigation and passing the petition to the Justice Committee for further action in May 2018, with an obvious expectation of progress – reported in further detail here: JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 March 2018

HOLYROOD’S EIGHT YEAR JUDICIAL INTERESTS PROBE:

The judicial register petition – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

The lengthy Scottish Parliament probe on judicial interests has generated over sixty two submissions of evidence, at least twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate and has since been taken over by Holyrood’s Justice Committee after a recommendation to take the issue forward from the Public Petitions Committee in March 2018.

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary.

The Scottish Parliament’s Justice Committee has backed calls for further work on the judicial interests register during at least THREE further Holyrood hearings, including the latest hearing from June 2019, reported here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women’s rights

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in May 2019 can be found here: JUDICIAL REGISTER: Justice Committee investigate approach to judges’ interests in other countries – MSPs say ‘Recusals register not comprehensive enough’ ‘Openness & transparency do not contradict independence of the judiciary’

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in February 2019 can be found here: JUDICIAL REGISTER – MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

 

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FOI PROBE: Holyrood Committee hear Scottish Information Commissioner backed off promise to bring Freedom of Information to Scottish Police Federation – even after Info. Tsar knew England & Wales Police Fed. already complied with FOI legislation

Scots Police Fed FOI scrutiny. A POST LEGISLATIVE inquiry into Freedom of Information law by the Scottish Parliament has published an account of how the Scottish Information Commissioner backed off promises to recommend FOI compliance for the union which represents all Police Officers in Police Scotland.

Evidence submitted to the Public Audit and Post Legislative Scrutiny Committee (PAPLS) inquiry reveals how the office of the Scottish Information Commissioner initially promised to recommend Freedom of Information compliance for the Scottish Police Federation (SPF) on the social media network Twitter.

However, the SIC then backtracked over multiple enquiries from journalists as to what further work had taken place by Daren Fitzhenry and his staff.

In a tweet dated 18 May 2017, the Scottish Information Commissioner’s office wrote in response to calls for FOI compliance to recommended for the Scottish Police Federation: “Thanks – we’ll add it to our list of bodies to propose to Ministers. Individuals can also make their own representations to the Scot Gov”

The positive response came after the SIC was informed of the Freedom of Information compliance status of the Police Federation of England & Wales – which is enshrined in legislation:

Freedom of Information Act etc: Police Federation for England and Wales: The Police Federation for England and Wales is to be treated for the purposes of— (a)10the Freedom of Information Act 2000,(b)the Data Protection Act 1998, and (c)section 18 of the Inquiries Act 2005, as if it were a body listed in Part 5 of Schedule 1 to the 2000 Act (public authorities).

However, after further enquiries from the medial, no further work on the issue by the Scottish Information Commissioner took place, and in response to further enquiries, the SIC claimed they were under resourced to look into the case and requested journalists make a recommendation to the Scottish Government.

An investigation by journalists into the Scottish Police Federation funding – by using Freedom of Information laws to quiz the Scottish Government – revealed SPF Boss Calum Steele, wrote to the Scottish Government SEVEN DAYS after the Information Commissioner’s promise to recommend FOI compliance for the SPF.

The letter from PC Calum Steele to the Scottish Government informed Ministers the Scottish Police Federation no longer wanted an annual public cash handout of £374,000.

The annual Scottish Government funding grant – which has seen the Police Union rake in significant amounts of public cash over the years – is thought to be one of several reasons serving and former Police Officers along with journalists are seeking FOI compliance for the Scottish Police Federation.

The Public Audit and Post Legislative Scrutiny Committee has now published an evidence submission from journalist Peter Cherbi on how the Scottish Information Commissioner backed off their initial promise to recommend Freedom of Information Compliance for the Scottish Police Federation.

The full submission, available online here is published below:

PUBLIC AUDIT AND POST-LEGISLATIVE SCRUTINY COMMITTEE

POST LEGISLATIVE SCRUTINY – FREEDOM OF INFORMATION (Scotland) ACT 2002

With regard to an example of a failure by the Scottish Information Commissioner to recommend an organisation (in this case the Scottish Police Federation) for FOISA compliance, I would like to submit this matter for consideration by the committee

In my role as a journalist, I was approached by persons including ex Police Officers who drew my attention to the lack of FOI compliance for the Scottish Police Federation and problems which members had experienced when attempting to make enquiries with the SPF – which – had the enquiry been via Freedom of Information legislation, would have been answered, and within a legal framework.

Noting the equivalent Police Federation of England & Wales has been FOI compliant for some time, I approached the Scottish Information Commissioner with a request the Commissioner look to recommend compliance for the Scottish Police Federation – given various transparency issues which had been brought to my attention, and the fact the equivalent Police Federation of England & Wales was already FOI Compliant.

However, while initially the SIC made what appeared to be a policy statement via twitter that they would “add it to the list of bodies to propose to ministers” on 18 May 2017 via twitter https://www.twitter.com/FOIScotland/status/865234073316470785 – further communications between myself and the SIC saw the Scottish Information Commissioner retreat from their earlier position.

A further chaser to the SIC on recommending compliance for the SPF then saw the SIC claim it was under-resourced, and could not undertake the work (although the SIC had written in considerable length on the issue to myself).

Ultimately the SIC then suggested I personally make a recommendation to Scottish Ministers on the matter – however, given what has already been learned in terms of how the Scottish Government treat such requests, and indeed my own experience of Freedom of Information compliance with the Scottish Government, a recommendation from myself as a journalist was unlikely to carry the same weight as one from the Scottish Information Commissioner.

The material accumulated as part of my research, including FOI disclosures from the Scottish Government, and contact with the Scottish Information Commissioner – is published online here: PROBE THE FED: Calls for Holyrood to probe secretive Scottish Police Federation as files reveal SPF General Secretary asked Scottish Government to withdraw £374K public cash grant funding – after social media transparency calls from cops

Given the Scottish Police Federation were in receipt of some £374,000 a year of public funds – an additional matter drawn to my attention by serving & former Police officers, I then sent FOI requests to the Scottish Government and took up the issue – noting that since the SPF was in receipt of public funds, this was an additional reason to bring the organisation within FOISA.

However, it is worth noting after I began to raise the issue with the Scottish Information Commissioner on social media, and some days after I approached the SIC with regards to recommending SPF compliance with FOISA the General Secretary of the SPF wrote to the Scottish Government and requested cancellation of the public cash grant.

It is difficult to conclude the raising of FOI compliance with the SIC, and the SPF’s decision to cancel the £374,400 public cash grant – all occurring within the same week – is a coincidence.

I feel the Committee should look into this matter, as an example of the process of recommending organisations for FOISA compliance.

And perhaps with the question of public funds to the Scottish Police Federation, and the notable request by the SPF for withdrawal of the public cash grant – only days after the issue of FOI compliance was raised publicly, there may be issues which the Committee may wish to explore further.

Among the additional FOI documents disclosed by the Scottish Government include some, but not all minutes of meetings & discussions around the grant funding for the Scottish Police Federation, and as has been consistent with recent Scottish Government releases, documents are subject to significant redactions.

However, while the letter from the SPF General Secretary to the Scottish Government reveals scant detail of SPF finances, former and currently serving Police Officers have posted their concerns on social media with regards to figures of up to ten million pounds held by the Scottish Police Federation in bank accounts & assets.

Social media postings by current and former Police Officers also refer to trips undertaken by SPF representatives including Callum Steele and suspended Sheriff Peter Watson – to various gatherings funded by the Scottish Police Federation.

Meanwhile, as current & former Police Officers & journalists asking questions of the SPF are either blocked online, or subject to social media attacks by supporters of the Scottish Police Federation and politically friendly elements – some of whom give after dinner speeches or lobby for public cash for their ventures, the Scottish Information Commissioner appears to have reneged on their enthusiasm for recommending FOI compliance for the SPF.

HOLROOD COMMITTEE PROBES FREEDOM OF INFORMATION LEGISLATION

The Post Legislative Scrutiny of the Freedom of Information (Scotland) Act 2002 began with MSPs taking evidence from stakeholders on 22 March 2018. The Committee took evidence from the Scottish Information Commisioner on 10 January 2019 and agreed to undertake post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002.

A SPICe briefing was also prepared for the Committee and also contains information about recent developments.

A second SPICe briefing was prepared, which includes global right to information data, September 2019.

Call for Evidence

The Public Audit and Post-legislative Scrutiny Committee launched a call for written views as part of its post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002 (the 2002 Act). The call for views launched on 6 of March 2019. The deadline was extended until the 21 June 2019.

Call for Views; Read the written submissions

The Freedom of Information inquiry has since heard evidence from journalists in an earlier session, where the Committee took evidence in a roundtable format from – Claire Cairns, Coalition of Carers; Severin Carrell, Scotland Editor, The Guardian; Dr Craig Dalzell, Head of Policy Research, Common Weal; Rob Edwards, Director and co-founder The Ferret; Carole Ewart, Convener, Campaign for Freedom of Information Scotland; Stephen Lowe, Policy Officer, UNISON Scotland; Nick McGowan-Lowe, Organiser Scottish Office, National Union of Journalists; and Bailey-Lee Robb, MSYP and Trustee, Scottish Youth Parliament.

A second evidence session also heard from Professor Kevin Dunion, Honorary Professor in the School of Law and Executive Director of the Centre of Freedom of Information, University of Dundee; Dr Karen McCullagh, Lecturer in Law and Course Director, LLM Media Law, Policy and Practice, UEA Law School, University of East Anglia; Professor Colin Reid, Professor of Environmental Law, University of Dundee; Alistair Sloan, Solicitor, Inksters Solicitors; Dr Ben Worthy (by video link), Senior Lecturer in Politics at Birkbeck College, University of London.

A further evidence session later this week on 7 November will feature evidence from Police Scotland; NHS Lanarkshie; Angus Council; NHS Greater Glasgow and Clyde; University of Edinburgh; Scottish Courts and Tribunals Service; Aberdeen City Council; Society of Local Authority Lawyers and Administrators in Scotland.

All updates and progress on the PAPLS inquiry on the Freedom of Information (Scotland) Act 2002 can be found at the Scottish Parliament’s website here: Post-legislative Scrutiny : Freedom of Information (Scotland) Act 2002

 

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