Lord President Lord Gill branded Scots justice Victorian & unfit for purpose, yet transparency of judges interests seems a step too far. THE SPECTACLE of a country’s most senior judge arguing against public expectations of transparency & accountability in the justice system and indeed public life, makes for an uncomfortable feeling that judges have something to hide. And so, in response to calls for greater transparency of the country’s judiciary, Scotland’s Lord President Lord Brian Gill, the author of the much acclaimed Civil Courts Review which has yet to bear fruit four years on for Scots locked in bitter court disputes, has issued a stern rebuke of a PUBLIC PETITION filed by a law journalist & campaigner calling for a Register of Judicial Interests.
In a sharp letter to MSP members of the Scottish Parliament’s Public Petitions Committee, the Lord President, Lord Gill condemned calls for greater transparency & public accountability of Scotland’s judiciary, and went on to attack proposals calling for judges to declare their interests, financial or pecuniary wealth, and other connections in a publicly available register as “misguided” and “naive”.
Even more worryingly, the Lord President goes so far in his letter to claim transparency across the courts system is not desirable in the form of a registrar of interests, as judges’ privacy should be protected to prevent the media or individuals gaining knowledge of judges invariably significant wealth, criminal records, undeclared business connections, work, & wealth earning or otherwise relationships outside and even inside the courtroom.
In a terse, bitter tirade against media investigations into the judiciary which revealed several of Scotland’s judges have criminal records, and one judge convicted of benefits cheating Lord Gill went on to brand those enquiring of judges secrets as “aggressive media” and “hostile individuals”. He also claimed that if a register of interests for judges existed, it may be more difficult to recruit judges in the future.
Given judges must be above reproach, and must uphold the values of transparency & accountability they hold those appearing before them in court, and that decisions taken by the judiciary can have a huge impact on public life, even contesting legislation passed by our elected politicians, can judges who refuse to be held to the same standards as everyone else in public life, be trusted ?
Thank you for your letter dated 9 January 2013 in respect of the above. I am firmly of the view that a Register of Judicial Interests is unnecessary and I do not support the terms of the petition.
Is there a practical need for a register of judges’ pecuniary interests?
The catalyst for this petition appears to be New Zealand legislation prepared following a case where a judge failed to recuse himself. To my knowledge, no such situation has arisen within my tenure as Lord President. The Council of Europe Group of States against Corruption (GRECO) considered the need for a Judicial Register of interests as part of their First Evaluation Round Report on the United Kingdom dated 14 September 2001′ and concluded as follows
“As regards the institutions that are entrusted with the fight against corruption the GET noted that judges in the United Kingdom are not required to register their interests. Given, however, that the United Kingdom judiciary is generally perceived as conforming to social demands for observance of high integrity standards, the GET did not consider it necessary to address a recommendation in this connection.” (paragraph 87)
Although yet to be published, I understand that having reconsidered this issue in their Fourth Evaluation Round Report last year, they remain of the view that a register or asset declaration system for members of the Judiciary is unnecessary.
Another reason why there is no practical need for this measure is that there are currently sufficient safeguards to ensure that judicial impartiality is maintained. The current safeguards in place in Scotland are established by the terms of the Judicial Oath, the Statement of Principles of Judicial Ethics for the Scottish Judiciary and the Judiciary and Courts (Scotland) Act 2008. I refer to the SPICe Briefing which details these provisions but would wish to draw the Committee’s attention to the following points
* The Judicial Oath, is taken by all judicial office holders, and requires judges to do right to all manner of people without fear or favour, affection or ill-will..
* The Statement of Principles of Judicial Ethics, issued in April 2010, states at principle 5 that all judicial office holders have a general duty to act impartially and,in particular, notes that “Plainly it is not acceptable for a judge to adjudicate upon any matter in which he, or she, or any members of his or her family has a pecuniary interest…”.
* The Judiciary and Courts (Scotland) Act 2008 contains provisions in section 28 and section 35 to regulate and investigate the conduct of judicial office holders. The Complaints about the Judiciary (Scotland) Rules 2011 came into force in 2011. To date there have been no substantiated complaints alleging judicial bias. In addition,the Conduct Committee of the Judicial Council intends to consult in the Spring of this year on rules under section 35 in respect of fitness for judicial office in tribunals.
In my view there is no need for the further measure of a “Register of Judicial Pecuniary Interests” as advocated in this petition.
Misconceptions within the petition
The petition appears to proceed on an apparent misconception that equal treatment in terms of disclosure obligations of each of the three branches of Government is desirable. The three branches have significantly different roles to perform. The judicial role requires independence and impartiality in relation to the individual case which the judge has to decide. In this context, the potential for conflict of interest or apparent bias extends beyond pecuniary interests alone. The judge’s duty of disclosure is more far-reaching than a bare listing of particular pecuniary interests identified by legislation as warranting disclosure. For example, a judge’s disclosure duties, as set out in the Statement of Principles of Judicial Ethics, will extend to material relationships
The petitioner is also incorrect in his assumption that “being obliged to declare pecuniary interests … would relieve a judge from a repetitive weight of responsibility to make discretionary judgments about his or her personal affairs as each case arises.” This is a naive interpretation that does not appreciate the role of a judge. Judicial conflicts of interest based on a judge’s pecuniary interests arise infrequently but, when they do, the existence of an entry on a judicial register of pecuniary interests would not relieve the judge concerned from his or her obligations to make full disclosure and to reach a principled decision as to whether recusal is warranted. For that reason, I do not consider that the vehicle that the petitioner proposes would achieve its stated purpose of “providing greater transparency within the judicial system and to avoid any conflict of interest in the judicial role.”
In practical terms it would be impossible for all judicial office holders to identify all the interests that could conceivably arise in any future case. The terms of the Judicial Oath and the Statement of Principles of Judicial Ethics ensure that such a difficulty does not arise and that the onus is on the judicial office holder to declare any interest at the outset.
This is a view shared and supported by the Justices of the Supreme Court who have publicly stated 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 believe to be compete, 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 publically available on the UKSC website.”
The introduction of such a register could also have unintended consequences. Consideration requires to be given to judges’ privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. It is possible that the information held on such a register could be abused. These are significant concerns. If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician. The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the Judiciary. It also raises the question whether such a measure would have an adverse impact on the recruitment and retention of the Judiciary.
AS OTHERS SEE IT – A PETITION FOR A REGISTER OF JUDICIAL INTERESTS BACKGROUND :
Petition PE01458: Register of Interests for members of Scotland’s judiciary calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests. Diary of Injustice has featured coverage of the petition in earlier reports, Register of Interests for Judges.
The petition also features references to debate in the Parliament of New Zealand who are considering legislation to create a register of interests for the judiciary. It is time for Scotland to move in the same direction and create a similar register of interests for the judiciary of Scotland and all its members, increasing the transparency of the judiciary and ensuring public confidence in their actions & decisions.
The full details of the New Zealand Register of Pecuniary Interests of Judges Bill, should be looked at for a model of similar legislation in Scotland, can be viewed online here Register of Pecuniary Interests of Judges Bill.
The New Zealand Law Commission’s discussion paper on a register of judicial interests which recommends further inclusion of court staff in a register of interests, can be downloaded here : NZLC IP21 – Towards a New Courts Act: A Register of Judges pecuniary interests? (pdf)
In comparison to New Zealand’s effort to ensure transparency in the judiciary, Scotland’s judges and the Scotish Government have, unsurprisingly backed away from any similar measures, even concealing criminal charges and convictions of Scottish judges, where in one case a Scottish judge was charged with fiddling benefits claims, exposed in a Diary of Injustice investigation into Judge’s financial fiddles, here : CAREER CROOKED : Investigation reveals Scottish judges are CONVICTED CRIMINALS, Drunk Drivers,Tax Dodgers & alleged BENEFITS CHEATS
The on-going investigation by Diary of Injustice into members of Scotland’s judiciary has already revealed a series of judges appear to be involved in OFFSHORE TAX AVOIDANCE schemes, associations with convicted criminals & organised crime, prostitution rackets, accepting hospitality & payments from well known corrupt solicitors representing dodgy law firms while others on the bench are engaging in questionable investments & duties which appear to be in conflict with their positions as members of the judiciary. More on these findings can be read in an earlier article here : Offshore trusts, property holdings, insurance syndicates, hospitality from dodgy lawyers, yet no plans for a register of interests for Scottish judges