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Scottish Government urged to give more powers to Judicial Complaints Reviewer as MSPs hear lack of judicial scrutiny undermines public confidence in justice system

24 Sep

Moi Ali Scottish Parliament Petitions CommitteeMore powers needed to scrutinise judges, says independent judicial reviewer Moi Ali. FOLLOWING evidence heard by MSPs at the Scottish Parliament last week of multiple failures of Scottish judges to recuse themselves from cases or declare their interests, the Scottish Government has now been urged to give more powers to Moi Ali, Scotland’s independent Judicial Complaints Reviewer (JCR) in an effort to bring Scotland into line with the rest of the UK where legislation requires a much higher level of judicial scrutiny regarding complaints made against judges.

Last week at the Scottish Parliament, JCR Moi Ali faced questions from MSPs on proposals to bring transparency to Scotland’s judiciary, contained in  Petition PE1458: Register of Interests for members of Scotland’s judiciary

Moi Ali told MSP members of the Scottish Parliament’s Public Petitions Committee that a lack of statutory powers for the Judicial Complaints Reviewer effectively meant there was little point to the role of JCR as no enforceable action can be taken if it is found judges have failed to properly or impartially investigate their own colleagues as a result of complaints from the public.

Currently, if someone who has made a complaint about a judge is not satisfied with how the Judicial Office for Scotland handled their complaint, they can ask the independent Judicial Complaints Reviewer to review how their case was handled. However, the JCR cannot take any action if  fault is found in how judges investigated their colleagues as the JCR has no powers by design of legislation.

The weakness of the JCR’s role is highlighted in Section 30, S31 and S32 of the Judiciary and Courts (Scotland) Act 2008 where it is clear the overbearing insistence on, and requirement of consultation with the Lord President & judiciary regarding the status of the Judicial Complaints Reviewer has played a big part to-date in denying any real form of independent scrutiny over Scotland’s judiciary.

Protests from Scotland’s judges over proposals in the 2008 legislation resulted in Justice Minister MacAskill creating the powerless Judicial Complaints Reviewer, who works for three days a month on an annual budget of £2000 and no staff.

Commenting on the lack of powers handed to the JCR, a legal insider told Diary of Injustice : “If you are consulting with judges about the extent of powers of an independent regulator who will scrutinise complaints against the judiciary, don’t be too surprised to learn they will block statutory powers of oversight being handed to that independent regulator.”

He continued : ”Consulting with the same people who are being regulated does not work very well, particularly in the case of the judiciary who seem to regard the courts as their own business venue, apparently expecting everyone to bow and scrape to them while paying their salaries and international jaunts.”

Last week, MSPs on the Petitions Committee also heard evidence from the JCR regarding how complaints against the judiciary are handled in the rest of the UK.

In England and Wales, the situation is very different from that of Scotland, where the Office for Judicial Complaints has 15 staff and publishes details of upheld complaints.

If complainants remain dissatisfied with how their case was handled, they can appeal to the Judicial Appointment and Conduct Ombudsman, headed by Sir John Brigstocke, with 14 staff.

Unlike the office of Scotland’s Judicial Complaints Reviewer which currently has no powers, the Judicial Appointment and Conduct Ombudsman has statutory powers enshrined in law,  and can overturn decisions, order re-investigations and ask for victims to be compensated.

Clearly this imbalance must immediately be addressed and statutory powers must be handed to Scotland’s Judicial Complaints Reviewer in an equivalent or even stronger form than currently exist in the rest of the UK.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations of the judiciary by Diary of Injustice including reports from the Sunday Mail newspaper, 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

The Sunday Mail newspaper reports further on the call to give more powers of oversight to Scotland’s Judicial Complaints Reviewer :

What's the point of a watchdog without teeth - Sunday Mail 22 September 2013WHAT’S THE POINT OF A WATCHDOG WITHOUT TEETH?

REVEALED JUDGES ESCAPE SCRUTINY

By Russell Findlay Sunday Mail 22 Sept 2013

A watchdog probing complaints about judges yesterday urged Justice Secretary Kenny MacAskill to give her some real bite.

Moi Ali admits there’s “little point” to her role as Scotland’s first ever Judicial Complaints Reviewer because of its lack of teeth.

She said: “It’s fair to say because I don’t actually have any powers. There’s no real independent oversight.If you provide oversight without powers, then there’s almost little point to it.”

Judges have opposed an independent ombudsman to oversee complaints against them.

Their protests resulted in Justice Minister MacAskill creating the “powerless” JCR who works three days per month, has a £2000 annual budget and no staff.

Complaints against judges are initially handled by the Judicial Office for Scotland, which is headed by the Lord President Lord Gill.

The complainer can ask Ali to review how their case was handled – but she can take no action.

In England and Wales, the Office for Judicial Complaints has 15 staff and publishes details of upheld complaints. People can then appeal to the Judicial Appointment and Conduct Ombudsman, headed by Sir John Brigstocke, with 14 staff.

His post is the equivalent to Ali’s but he can overturn decisions, order reinvestigations and ask for victims to be compensated.

Ali said: “It’s hard to say why, if you make a complaint about a judge in England or Wales, the powers available are so much wider compared to what happens in Scotland. Their approach couldn’t be more different in terms of openness.”

Lord Gill has snubbed Holyrood’s plea to discuss legal campaigner Peter Cherbi’s petition for a judicial register of interests. He cited the Scotland Act which says judges can’t be forced to attend parliament. But critics say the Act only refers to judges’ courtroom decisions.

Ali last week told the committee: “Clearly politicians should have no part in influencing judicial decisions.

But judicial accountability is a completely separate issue.

“That’s the issue that cuts through all of this for me.”

During last week’s hearing, Scottish Tory deputy leader Jackson Carlaw launched a colourful attack on Scotland’s top judge.

Carlaw said Lord Gill had an “Edwardian establishment disdain for the hoi polloi”.

He also said there was a feeling “the swish of judicial ermine and velvet should cow into deference both public and the legislature”.

Committee chairman, Labour MSP David Stewart, and his SNP deputy Chic Brodie plan to meet Lord Gill in private and raise Ali’s lack of power with MacAskill.

The Scottish Government said: “We note the committee plans to raise these issues and will respond in due course.”

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