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Transparency is not rocket science, Lord President : Disclosure should not be held in contempt of court by Scotland’s top judge over proposal to create a register of judicial interests

06 Jan

Last year,Scotland’s top judge opposed all debate on register of judicial interests. IN AN ATTEMPT to make a proposal currently being debated by MSPs to create a register of judicial interests sound more like a complicated scientific mission to land the first member of the judiciary on the moon, Scotland’s top judge, Lord President Lord Brian Gill incurred great effort in leaving little doubt in 2013 that he opposed any move by the Scottish Parliament to create, or even debate proposals to require judges by law to declare all their interests in a published register of interests.

During the past year of debate on Petition 1458, Lord Gill and the judiciary had a task at hand. In their eyes, the subject of judicial interests could not be debated in public, for it would reveal the shambles of judicial oaths, the shambles of rules the judges wrote themselves, rich judges, judges with criminal records, judges with tax dodging investments , judges with multiple conflicting interests, and judges who once prosecuted people then threw out their appeals against wrongful convictions.

Clearly if MSPs and the public delved deeper, the truth would be revealed, showing that recusals in court were in most cases, not taking place and most certainly not being recorded, should anyone ever ask to see the data.

It was quite a surprise to some that the focus and public face of Scotland’s world travelling judiciary and its supporting vested interests should collapse so easily like a house of cards at such a simple proposal asking the Scottish Parliament to debate and ultimately legislate to ensure that the well earned, well kept, yet unusually secretive members of Scotland’s judiciary should set out their complete interests in a published register of interests like all other public servants are required to undertake.

However, the lengths which the judiciary were to go to, in an effort to protect themselves against any required disclosure of, or even debate surrounding their interests, was nothing short of stunning arrogance against a simple call for transparency, an act which if anything has encouraged public debate and brought to the fore the lack of accountability in the judiciary.

Not only was the Lord President opposed to giving evidence at the Scottish Parliament and replying to questions from MSPs on a proposal contained in Petition 1458 to create a register of judicial interests, Lord Gill refused several invitations to appear at Scotland’s elected Parliament to face questions from MSPs on his opposition to the transparency proposal.

While refusing to give answers to many of the questions put to him on the numbers of cases in which Scottish judges have recused themselves and in what circumstances recusals have occurred, Lord Gill twice referred MSPs to quotes from an obscure EU report written by judges who effectively used the opportunity of compiling the EU quango report to lobby against any proposal to require members of the judiciary to declare their interests.

As the debate at Holyrood unfolded, it was clear the Lord President was willing to oppose the call for a register of interests in writing, but not attend the Scottish Parliament in person to be questioned in public and on camera about his opposition to the transparency proposals of judges declaring their interests.

Not satisfied, Lord Gill overstepped the mark, accusing the media, litigants, court users, indeed anyone and everyone who may have cause to question a judge’s interests in a court case, of harassment and even hostility, just because the very transparency judges demand of everyone else in court may end up being used by the public to delve into the secrets of the judiciary’s undeclared private wealth, undeclared earnings, friendships and professional relationships, all of which may be relevant to countless cases in our courts.

And to make sure the Lord President had his way in his attempts to hinder proper public debate on the question of judicial interests, Lord Gill threw passages of the Scotland Act itself in the face of MSPs, claiming a somewhat debatable interpretation of the Act which Lord Gill implied exempted him from being called to answer questions on the very interests judges are so eager to keep secret.

Desperate to fluster any debate on the subject, Lord Gill even implied the very independence of the judiciary itself was being challenged in the proposal put forward to require judges to declare their interests.

Clearly, independence of the judiciary was not being challenged. The Lord President had again misapplied the term to stifle debate, as judges do when the tables of transparency are turned.

Scotland’s Judicial Complaints Reviewer Moi Ali answered this point in a recent media interview on the publication of her 2012-2013 annual report, stating : “I think it’s a confusion between independence and accountability. I really do think it’s as basic as that. The dividing line is completely clear.”

Lord Gill’s opposition to transparency of his and his colleagues interests was, and is absolute. There is to be no public debate. There is to be no register of judicial interests. There is to be no transparency when it comes to the judiciary.

Simply put, those who dispense justice cannot be, and cannot be seen seen to be immune from the laws which apply to all of us, from public expectation of transparency, or from serving the community as their position befits. There can be no excuse to the contrary.

What is there to fear ? What is there to hide ? We must all abide by the same law and the same expectation of transparency, but when a country’s most senior judge lunges so out of step with accepted norms and public expectation of complete transparency in all walks of public life, Government, the courts, and the justice system and effectively dictates policy to an elected Parliament that a proposal which is such a common requirement in most other walks of public life must not apply to the judiciary, there is a clear problem which brings into question the way in which the judiciary conduct themselves and are held to account for their actions.

While some have hoped for speedy action over the proposal for a register of judicial interests, the duration of the debate so far, and media publicity to the transparency plan has brought its own benefits, in terms of a multitude of new information on cases which clearly raise issues where judges have not declared interests and stepped aside, leading to potential injustice and the compromising of our courts.

Transparency, Lord Gill, is not rocket science. It is time for Scotland’s judiciary to declare their interests in a published register of interests, like all others in public life. Such a register will enhance public trust in a justice system which clearly needs it.

In support of Petition 1458, Judicial Complaints Reviewer Moi Ali wrote in her 2012-2013 Annual Report of her recognition of the issues of transparency raised in the petition, and recommended “any judicial register of interests should not be limited to pecuniary interests, but should also encompass non-financial interests such as memberships, unpaid trusteeships, and any relevant close family/friendship links that may be perceived as a potential conflict of interest.” Video footage of the evidence session in which the JCR answered questions from MSPs can be viewed here :

JCR Moi Ali gives evidence to Scottish Parliament on a proposed Register of Judicial Interests (Click image to view video)

JCR 2012-2013 Annual Report confirms support for a Register of Judicial Interests, recommends extending interests to be declared. Register of Interests : I was invited to submit written evidence to the Scottish Parliament’s Petitions Committee on a register of interests for the judiciary and I did so in May.

I  supported the view of the petitioner, Peter Cherbi, that a register of interests would increase the transparency of the judiciary and ensure public confidence in the judiciary’s actions and decisions.

Responses from the Lord President, the Law Society of Scotland and the Scottish Government suggested that a register of interests is unnecessary because, among other things, the complaints process is a safeguard.

As Judicial Complaints Reviewer, I believe that some of the necessary independent safeguards are missing from the complaints process. In any event, registers of interest are now a normal part of public life.

We are fortunate to have an independent judiciary, whose independence must never be undermined. However, independence must not be confused with lack of accountability. Better transparency would enhance the judiciary’s standing and bring parity between judicial office holders and other holders of important roles in public life.

Although not required to do so, I prepared my own register of interests in May 2013, which was publicised using social media, is published on my website and also reproduced in this report. I believe that the JCR should be required to publish their interests, either by legislation or as a requirement set out in their letter of appointment from the Minister. Their independent oversight role makes the publication of their interests all the more important.

I suggested in my evidence that any judicial register of interests should not be limited to pecuniary interests, but should also encompass non-financial interests such as memberships, unpaid trusteeships, and any relevant close family/friendship links that may be perceived as a potential conflict of interest.

I based my comments on the cases that I have reviewed and the nature of the original complaints raised. I followed up in September with oral evidence and further written evidence, an account of which will be given next year.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations 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

Petition PE1458: Register of Interests for members of Scotland’s judiciary is due to be heard again at the Scottish Parliament after the Convener and Deputy Convener of the Public Petitions Committee meet the Lord President in a private meeting to be held sometime in January 2014.

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