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Scots judiciary want ‘independence’ from legislative reforms, public accountability as judges attack Judiciary & Courts Bill

13 Mar

While to many, independence means a break from whatever foul acts or perceptions of wrongdoing, lack of freedoms, unaccountability or lack of honesty exist in an organisation, public body, or even a country, the Scots legal establishment have taken on the ‘independence’ word as an argument to retain control over itself and all things relating to the law, from appointments to regulation, to just about anything it feels is within it’s sphere of influence.

This is not a new argument to the Scots legal establishment however, who in the form of the Law Society of Scotland, used the same argument in 2006 in an attempt to thwart the progress of the now passed Legal Profession & Legal Aid (Scotland) Act 2007, which brought a measure of independent regulation to the legal profession, attempting to cure the high rate of corrupt complaints investigations carried out by the solicitors own self regulatory body, the Law Society of Scotland.

Douglas Mill, the Law Society’s Chief Executive, famously threatened the Scottish Parliament & Executive with legal action, declaring after drafting in an English QC to assist in writing legal opinions, that it was and is a solicitor’s “Human Right” to regulate complaints against colleagues .. and thus taking away regulation from the Law Society of Scotland would be a breach of ECHR.

You can read about Douglas Mill’s threat of a legal challenge against the LPLA Bill here : Law Society of Scotland threatens Court challenge against Scottish Executive over LPLA legal reform Bill

Unsurprisingly, Douglas Mill’s threat of court action to stop the much needed legislation failed, but it did have an effect of galvanising some politicians in the parliament to speak out somewhat more than they had previously, particularly regarding the now Cabinet Secretary for Finance John Swinney’s position on matters, where a stinging confrontation between Douglas Mill & John Swinney before the Justice 2 Committee saw revelations of serious corruption and fraud within the Law Society’s Master Insurance Policy, run by the equally infamous insurers Marsh UK.

You can read about the bitter public confrontation between Douglas Mill & John Swinney here : Law Society boss Mill lied to Swinney, Parliament as secret memos reveal policy of intervention & obstruction on claims, complaints.

Now, in 2008, the ‘independence’ argument is being presented again, this time by those higher up the ladder in the Scots legal establishment, to thwart changes proposed in the forthcoming Judiciary & Courts (Scotland) Bill, which is currently under consideration by the sole Justice Committee of the Scottish Parliament, chaired by Bill Aitken MSP, a self confessed fan of Douglas Mill.

For a brief guide to how the Scots judiciary regard the term ‘independence’, see a previous related article here : Judicial ‘independence’ in Scotland sees Lord President appointed head of judiciary & ‘Law Society’ style complaints system against judges

Senior judges appeared earlier this week before the Justice 2 Committee and criticised parts of the proposed judicial reforming legislation, particularly raising points relating to the Judicial Appointments Board, where Lord Osborne, Scotland’s longest serving judge claimed the Board was not carrying out its duties properly.

From the Scotsman :

Lord Osborne said: “It’s my understanding that the board has set its face against making inquiries about how the individual candidate may have performed his professional or judicial responsibilities before that appointment arises.

“For example, if a sheriff is seeking appointment to a more senior judicial office, the board does not enquire of others how that sheriff has performed.”

He added: “This is not a happy approach. You are blinkering yourself to sources of information I would have thought are highly valuable.”

There are many of course, who would say that past and even the current system of appointing judges has never really inquired as to how candidates had performed their duties in the past as lawyers, and certainly none of that has ever been made public, leading to feelings that poor regulatory records and bad legal service to clients has been glossed over while candidates for judicial appointments were solicitors themselves …

I don’t ever recall the public getting to read the service & regulatory history of a candidate for a judicial appointment when they were a lawyer, how they performed for their clients, what they did, what kinds of cases they were involved in etc …

Why shouldn’t such information be published ? Don’t the rest of us deserve to know who these judges really are and what they have been doing before they were a judge ?

Of course, the problem with obtaining such information about a judicial appointments candidate in the first place is that any regulatory records and other information would originate from that great bastion of honesty, the Law Society of Scotland, whom we know has more than on one occasion, fiddled a few investigations against crooked lawyers, leaving little ‘honesty’ value being able to be attached to such disclosures of previous service …

Lord Osborne also went onto criticise plans plans for an ombudsman to oversee the way the Lord President handles complaints against judges, saying :

“If we cannot trust the Lord President of the Court of Session to observe the rules … then it is a sorry day.”

No one likes a bit of much needed transparency then, and with the way the Scots legal establishment has effectively ruled itself for centuries, deciding for itself who among us gets access to justice and who gets justice denied, who would ever be able to trust anyone linked to such a body …

Lord Hamilton the current Lord President who is currently in charge or has a powerful ‘say so’ in appointing just about everyone to anything in any area of the Scots legal establishment, faired no better, with an insistence that he should be able to “tap someone on the shoulder” for an emergency appointment … another great vote for ‘independence of the judiciary’.

It is quite clear there needs to be significant judicial reform in Scotland, with much needed accountability & transparency brought to admissions, regulation and all matters relating to Scotland’s judiciary, and while their lordships will no doubt resist such ideas to the bitter end, perhaps even daring to bring a few legal challenges, quiet threats, or even a few case rulings to ‘teach government a lesson or two’, at the end of the day, the public interest and the interests of accountability must be served, thus such reforms will win the day, albeit in a slightly watered down version.

Along with reforming admissions to the judiciary of course, the Scottish Parliament could also tackle reforming admissions to the legal services market, where for now, the Lord President and the Justice Secretary Kenny MacAskill, both former lawyers and members of the Law Society of Scotland, decide who can enter the legal profession and who cannot, and the two of them have happily sat down together and canceled all applications by qualified persons so far under Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990 to gain rights of audience and representation in the Scottish courts system …

The Herald reports :

Protect judiciary’s independence, top judge tells MSPs

ROBBIE DINWOODIE, Chief Scottish Political Correspondent

The Lord President, Scotland’s most senior judge, appeared for the first time before MSPs yesterday and made a strong plea for the judiciary’s independence from government to be enshrined in law.

Welcoming Lord Hamilton to the justice committee, convener Bill Aitken said it was a unique occasion as he could find no precedent for the Lord President addressing a parliamentary committee.

The country’s top judge gave evidence on the Judiciary and Courts (Scotland) Bill at a session which included three other judges, as well as sheriffs, advocates, solicitors and representatives of the Judicial Appointments Board.

Lord Hamilton was one of several senior legal figures who gave their views on the Judiciary and Courts Bill.

They included fellow judges Lord Hodge, Lord Osborne, and Lord Reed, and top figures from the Law Society of Scotland and the Faculty of Advocates.

Lord Hamilton backed the intention to place a statement on judicial independence on the face of the Bill, saying: “I see it as a signal, if nothing more, that there should appear in the legislation a provision for the importance of judicial independence.”

He stressed he did not envisage this principle being breached but added: “It sends out the right message. We live in pleasant times. Times may not always be pleasant, and conflicts could arise between the judiciary and the executive.”

Lord Hamilton would become formal head of the system, responsible not just for the High Court, Court of Session and Court of Appeal, but also for the sheriff and district courts.

To ease the administrative burden he would be given his own separate civil service, the Scottish Courts Service, based on the model established in Dublin. Lord Hamilton stressed that he still intended to spend the majority of his time in court.

He argued that if MSPs wanted to compel anyone in future to appear before him it should be the chief executive of the SCS, not the Lord President, who could be invited to attend but should not be compelled to attend, again as a bulwark for the independence of the post from political control.

Similarly, there was disagreement about the planned composition of the Judicial Appointment Board. He believed that, on another point of principle, those appointed by the Government should be in a minority, with either a majority for the judiciary or a casting vote in the hands of the Lord President. Most witnesses were broadly happy with the Bill, but Lord Hamilton rejected a suggestion that training for judges should be made mandatory in law. He told MSPs that he had responsibility in the Bill for putting in place the arrangements for the training of judges.

“It’s a question of finding the right way of securing the ultimate end,” he said, adding that his experience indicated that the best way of securing attendance of senior judicial office holders at training events was through encouragement.

“There are dangers if one uses the stick too much rather than the carrot. I would say that a judicial office holder is going to be much better able to receive training if he or she has been encouraged that it is a good thing to go there, rather than by two policemen marching him or her to the appropriate place.

“I would say that the better arrangement is to leave matters to me to put in place appropriate arrangements. If it is necessary then the arrangements could include matters which verge on compulsion, but I would hope it would not come to that.”

He also said that, in terms of a complaints system against judges and sheriffs, there were already steps in place through the Judicial Council for Scotland to draw up a Code of Judicial Guidance, a list encouraging good practice rather than a “penal code of misconduct”.

He made one other appeal to MSPs regarding judicial appointments. He wanted to encourage a system similar to that of Recorders south of the border, part-time judges bringing expertise to the Bench without seeking to become full-time judges.

It was envisaged that these would have to go through the Judicial Appointments Board but he asked for flexibility on this.

“I need to be able to tap them on the shoulder to invite them onto the bench part-time and get that trend going.”

The Scotsman reports :

Top judge attacks ‘blinkered’ judicial appointments system

By Michael Howie

Home Affairs Correspondent

SCOTLAND’S longest-serving judge has attacked the way his fellow judges and sheriffs are appointed, accusing the body in charge of failing to do enough to weed out bad candidates.

Lord Osborne said the Judicial Appointments Board for Scotland had “set its face against” consulting other members of the legal profession when deciding who should become a judge or sheriff.

Lord Osborne, a senior appeal judge, and Lord Hamilton, the Lord President, yesterday gave evidence to the Scottish Parliament’s justice committee, which is examining a bill proposing one of the biggest overhauls of the judiciary and courts in legal history.

Lord Osborne said: “It’s my understanding that the board has set its face against making inquiries about how the individual candidate may have performed his professional or judicial responsibilities before that appointment arises.

“For example, if a sheriff is seeking appointment to a more senior judicial office, the board does not enquire of others how that sheriff has performed.”

He added: “This is not a happy approach. You are blinkering yourself to sources of information I would have thought are highly valuable.”

Lord Osborne suggested inferior candidates could get the job simply because they were better at interviews, adding: “The ability to interview well is not necessarily a guide to the ability to a job under consideration.”

He highlighted the situation where a part-time sheriff applies for a full-time role, and pointed out that the sheriff principal would not be consulted to find out if the candidate was subject to any disciplinary proceedings.

“The part-time sheriff could be given a permanent appointment when there are outstanding complaints against them which were never brought to the attention of the appointments board. That doesn’t seem to be a satisfactory situation.”

He also criticised plans for an ombudsman to oversee the way the Lord President handles complaints against judges, adding: “If we cannot trust the Lord President of the Court of Session to observe the rules … then it is a sorry day.”

Sir Neil McIntosh, chairman of the Judicial Appointments Board, said it carried out disclosure checks on candidates, adding: “We also check available information on candidates from the Law Society and Faculty of Advocates.”

Meanwhile, Lord Hamilton, the country’s most senior judge, yesterday criticised proposed new laws which would require temporary judges to be appointed by the board, insisting he should be able to “tap someone on the shoulder” in emergencies.

At present, the Lord President is in charge of appointing temporary judges, and does not have to consult the Judicial Appointments Board. Lord Hamilton said the proposed system would put people off applying for temporary judge posts.

He told MSPs that he wanted to see experienced advocates routinely becoming part-time judges to gain experience of the bench, adding: “In order to set that trend into place, I think I require to be able to go and tap on the shoulder rather than people filling out application forms.”

Lord Hamilton also welcomed the provisions in the new legislation to place a statutory duty on the government to preserve the independence of the judiciary: “I think it’s internationally recognised that this guarantee of continued judicial independence should be formally established within the constitutional structure.

“It’s important as a symbol if nothing else that there’s a recognition of judicial independence.”

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