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Anti-transparency top judge ‘should reconsider his position on Scotland Act’ as MSPs invite Judicial Investigator to give evidence on register of judicial interests

02 Jul

Scottish Parliament will hear evidence on register of judge’s interests after summer recess. MSPs from the Scottish Parliament’s Public Petitions Committee made it clear at last Tuesday’s committee meeting they still want to hear from Scotland’s top judge, Lord President Lord Brian Gill who has so far been reluctant to attend Holyrood to discuss issues of judicial transparency raised in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The move by members of the Petitions Committee who have also decided to hear evidence in public sessions from the Judicial Complaints Reviewer (JCR), Moi Ali, comes  after the Lord President refused to appear before MSPs to explain his vociferous opposition to the proposal seeking to create greater transparency in the judiciary.

During last Tuesday’s meeting at Holyrood, Chic Brodie MSP, the Deputy Convener of the Petitions Committee spoke on the issues of transparency in relation Lord Gill’s refusals to accept invitations from the Petitions Committee to attend the Parliament and speak on the matter.

Chic Brodie said : “We are looking for openness and transparency, but the Lord President has chosen not to attend to explain why there should not be a register of interests for judges, as there is for members of Parliament, members of the Scottish Police Authority and so on.”

The Deputy Convener also drew attention to the fact that Lord Gill was being selective in which Parliamentary Committees he attends.

Mr Brodie said : “I recently attended the Justice Committee to talk about changes to the Scottish Court Service; it is somewhat paradoxical that the Lord President was happy to go along to that committee to explain?or not to explain, as the case may be?the rationale behind those changes.

Commenting further on Lord Gill’s terse opposition to the petition and refusal to provide answers to questions from members of the Petitions Committee, MSP Jackson Carlaw said : “Lord Gill’s response, which took us to something of an impasse from our point of view, was, “It’s not happening down south, and neither I nor anybody else has any intention of doing it, so get your tanks off my vested-interest lawn.”

Mr Carlaw also agreed that the Judicial Complaints Reviewer, Moi Ali, be invited to attend an evidence session to speak to MSPs on the merits of a register of interests for the judiciary.

Agreeing with Jackson Carlaw, John Wilson MSP also raised the possibility Lord Gill should reconsider his earlier refusals to attend the Petitions Committee after MSPs have heard from Moi Ali.

Mr Wilson went on to comment on the Lord President’s position regarding the Scotland Act, pointing out the issues being dealt with in the petition did not relate to decisions taken by judges in court, rather it related to the administration of the judiciary where it is the position of the petitioner that Parliament should have the right to speak to judges on these subjects.

John Wilson MSP said : “I hope that, once we have heard that evidence, Lord Gill might reconsider his position in relation to section 23(7) of the Scotland Act 1998. Basically, my interpretation is that Parliament and its committees cannot call judges or sheriffs to give evidence on and to be accountable for judicial decisions that they have made, but the petitioner’s main point is that we should hear from Lord Gill in his role as the Lord President, which involves overseeing the judiciary.”

The discussion on Petition 1458 drew to a close with the Committee agreeing to invite the Judicial Complaints Reviewer to give evidence at a future meeting. The Committee also agreed to write to Dr Kennedy Graham MP of the New Zealand Green party. Dr Graham’s bill for a Register of Pecuniary Interests of Judges in New Zealand, helped in-part inspire Petition 1458.

Judicial Complaints Reviewer Moi Ali has already voiced her support for the proposal in a letter to MSPs, reported by Diary of Injustice here : ‘Better Transparency would enhance Judiciary’ as Scotland’s independent Judicial Complaints Reviewer issues support for Register of interests for judges

Full video coverage & transcript of the Public Petitions Committee’s discussion of Petition 1458 :

Petition 1458 Register of Interests for Scottish Judiciary 25 June 2013 Scottish Parliament (Click image to watch video)

Judiciary (Register of Interests) (PE1458)

Chic Brodie MSP (Deputy Convener) : PE1458 is on a register of interests for members of the judiciary. Recommendations for action that the committee might wish to take are included in the papers. One is to invite Moi Ali, the Judicial Complaints Reviewer, to give evidence to the committee at a future meeting. We could also take any other action that we consider appropriate.

Before I make any personal comment, I seek the views of members of the committee.

Previously, the committee decided that there was no further purpose in pursuing the Lord President. I pointed out that the Government appointed JCR had particularly strong views on the matter and said that, although the Lord President wants to talk only about the constitutional principle, that principle needs to be seen in the light of potential constitutional changes. The view was that we should seek to close off the petition with the Lord President.

However, I certainly recommend that we get Moi Ali in here to hear her views.

Jackson Carlaw MSP: I agree. I thought that we had reached something of an impasse. When I saw the support for the proposal from the Judicial Complaints Reviewer?an appointment that was established under the Judiciary and Courts (Scotland) Act 2008?I felt that, given that the weight of evidence so far from the establishment has been of one colour, it would be interesting to hear why the Judicial Complaints Reviewer takes a different view.

Malcolm Chisholm MSP: I have not been involved in the petition, so I would really like to ask a question. I have read Lord Gill’s view of judicial independence in relation to attending the committee and answering questions. Are his and others’ objections to the register based on the same principle of judicial independence, or are they not really to do with that at all? I do not know whether anyone can answer that, but it seems to me that the petition raises interesting general questions about  the line between judicial independence and accountability and political oversight. In part, that relates to an issue about judicial independence that I raised in last week’s debate in Parliament on the Victims and Witnesses (Scotland) Bill. I am curious about the issue.

Chic Brodie MSP (Deputy Convener):  The view that was taken was that there are other mechanisms and checks and balances, such as recusal, that secure the independence of the judiciary without exposing judges to what would be seen as a breach of the Scotland Act 1998 in performing their role.

Malcolm Chisholm MSP:  So the issue is about a register that would affect judicial independence, rather than just about the Lord President appearing here to answer questions. Is that what you are saying?

Chic Brodie MSP (Deputy Convener): That is the difficulty and the reason why we are struggling. We are looking for openness and transparency, but the Lord President has chosen not to attend to explain why there should not be a register of interests for judges, as there is for members of Parliament, members of the Scottish Police Authority and so on. That is his view.

Jackson Carlaw MSP:  Lord Gill’s response, which took us to something of an impasse from our point of view, was, “It’s not happening down south, and neither I nor anybody else has  any intention of doing it, so get your tanks off my vested-interest lawn.” We were unable to find a way to break through that, but the information that we have received from the Judicial Complaints Reviewer potentially offers us an interesting extension of  the discussion. However, I do not think that the issue that the petitioner raised has ever been properly and fully addressed, beyond the Lord President saying that he does not think that a register is necessary and, surprisingly, neither does anybody else who is currently employed in the profession.

John Wilson MSP:  I agree with Jackson Carlaw. Given the interesting comments in the response from the Judicial Complaints Reviewer, it would serve a purpose to invite her to give evidence to the committee. I hope that, once we have heard that evidence, Lord Gill might reconsider his position in relation to section 23(7) of the Scotland Act 1998. Basically, my interpretation is that Parliament and its committees cannot call judges or sheriffs to give evidence on and  to be accountable for judicial decisions that they have made, but the petitioner’s main point is that we should hear from Lord Gill in his role as the Lord President, which involves overseeing the judiciary.

I hope that Lord Gill might reconsider his position in the light of the fact that we are to take further evidence. I hope that that evidence will draw out other issues that are relevant to our deliberations. I support Jackson Carlaw’s suggestion to take evidence from the Judicial Complaints Reviewer.

Chic Brodie MSP (Deputy Convener):  Okay. We will invite Moi Ali to give evidence.

I recently attended the Justice Committee to talk about changes to the Scottish Court Service; it is somewhat paradoxical that the Lord President was happy to go along to that committee to explain?or not to explain, as the case may be?the rationale behind those changes.

Do members have any other comments?

Jim Eadie MSP:  I just want to reinforce Mr Carlaw’s and Mr Wilson’s points. Notwithstanding the points that the Lord President made in his letter to the convener that judges cannot be compelled under the Scotland Act 1998 to appear before committees of the Parliament, I note the statement in that letter that“a register of interests for the judiciary is both unnecessary and unworkable.”

It would  have been beneficial if the committee had been able to hear oral evidence from the Lord President about why he thinks that that is the case. Like John Wilson, I hope that the Lord President will reconsider that. However, I certainly endorse the view that we should hear further evidence from other expert witnesses.

Angus MacDonald MSP:  I draw the committee’s attention to the petitioner’s letter, in which he asks the committee to approach a Green Party member of the New Zealand Parliament, Dr Kennedy Graham, who  is currently putting his Register of Pecuniary Interests of Judges Bill through that Parliament. We could approach Dr Graham to ask for his views.

Chic Brodie MSP (Deputy Convener):  We can e-mail Dr Graham, but we will need to ask him very specific questions. I do not think that there is any harm in that but, as the clerk has just pointed out to me and as the correspondence makes clear, the suggestion is that the New Zealand Government is intending to move in the direction of recusal. Should I formulate some questions and just zap them around everyone?

Angus MacDonald:  That would be fine, convener.

Jim Eadie MSP: I do not think that we should rule out a future evidence session involving experts from furth of Scotland. When the Health and Sport Committee considered minimum unit pricing of alcohol, it benefited greatly from evidence from Canadian experts?notwithstanding the time difference between the two countries.

Chic Brodie MSP (Deputy Convener): I thought that you were going to suggest that we go out there to speak to them.We have covered the position.

Petition PE1458: Register of Interests for members of Scotland’s judiciary filed by law journalist Peter Cherbi calls on the Scottish Parliament to legislate for a requirement that all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

Previous articles from Diary of Injustice including video footage of the Petitions Committee meetings and further information on the drive to create a register of interests for Scotland’s judiciary can be viewed here : A Register of Interests for Scotland’s Judiciary

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