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Judicial Transparency is “not workable” claims Scotland’s top judge Brian Gill in private meeting with Holyrood msps on register of judicial interests petition

11 Feb

Top judge set on fighting msps over judicial transparency register proposal. NOTES of a private meeting between Lord Gill and two msps from the Scottish Parliament’s Public Petitions Committee have now been published,  leaving little doubt Scotland’s top judge Lord President Lord Brian Gill is set on fighting any move by Holyrood to bring in a major reform in transparency for Scotland’s judges by creating a register of judicial interests as called for Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The notes of points made by Lord Gill, taken by Anne Peat, Clerk to the Public Petitions Committee, reveal the top judge continues to insist there is no need for a register of interests for the judiciary. Lord Gill claimed that judges are exempt from transparency because they are bound by oaths written by themselves, that judges do recuse themselves and notes are recorded of this, and that if the public wanted to find out about recusals, they could use Freedom of Information legislation.

At the private meeting, the clerk’s notes indicate Lord Gill went on to claim a register of interest is “not workable” as judges have so many interests it would not be possible for them to identify what should be declared or be withheld from public gaze. However, the “unworkable” myth spun by the top judge at the private meeting has apparently not prevented thousands of other registers of interest operating smoothly in public life both at home and abroad.

The top judge also claimed “Much work” went into a letter of February 2013 in which the Lord President set out his position on the transparency reforms. However, in this same letter, Lord Gill accused the media of being “aggressive”, branded litigants & court users as “hostile”, claimed judges privacy would be breached if their interests became a matter of public debate and warned that such an application of transparency may make it more difficult to recruit judges in the future.

PE1458 Register of interests for members of Scotland’s judiciary Clerk’s notes from informal meeting with Lord Gill Tuesday 21 January 2014, Q1.03 Holyrood

In attendance: David Stewart (convener) Chic Brodie (deputy convener), Lord Gill, Anne Peat (clerk) Stephen Humphreys (Executive Director, Judicial Office for Scotland) Points made by Lord Gill:

If a judge recuses him or herself it is recorded in the minute of court proceedings, part of the formal court process. No tally is kept of figures.  Lord Gill had recused himself twice. Any interested person could make an FOI request with respect to a particular judicial office holder to seek information on that person’s recusal record.

No need for a register of interests as there are currently 3 safeguards in place which are deemed sufficient as set out in the letter of February 2013. Lord Gill has confidence in the integrity of judges and sheriffs. Much work went in to the letter of Feb and it was felt by Lord Gill that this was the best help and explanation for his stance that could be provided.

A Register of Interests would not be workable as it could not be predicted what might arise in a court case and it could not be anticipated what might need to be recorded. Not practical to try to think of every situation that might arise.

The petition seeks a register of pecuniary interests. This would not address the concerns, for example about undeclared family relationships, and would not achieve the purpose sought as problems cited would not be caught by such a register.

The legislation being proposed in New Zealand was in response to a particular issue that would not have been revealed by having a register of pecuniary interests.

If it was practicable and helpful the courts admin could be asked to investigate whether its software could be adapted to provide aggregated information on recusals.

Recusal does not cover monetary considerations but relationships.

3 judges sit on the Board of SCS. The SCS annual report notes the offices and interests held by the Board members.

The notes, as published above appear to have added little to the debate about a judicial interests register taking place at the Scottish Parliament’s Petitions Committee, where it is hoped to hear the petition again sometime in the coming weeks.

Also, it was revealed earlier last week by the Judicial Office and prior to the parliament’s publication of the meeting notes, that Stephen Humphreys, the Executive Director of the Judiciary of Scotland attended what was supposedly a private informal meeting in an official role to support the Lord President.

However, no mention whatsoever of Mr Humphreys presence at the meeting was made during discussions with msps attending the last session of the Public Petitions Committee, nor does any reference to Mr Humphreys attendance appear in the official record of the meeting, published here: CLOSED ENCOUNTER OF THE JUDICIAL KIND: Private meeting with msps, top judge over judicial interests petition raises fears judiciary are dodging official remit of Holyrood committee

Speaking for the Judicial Office, Elizabeth Cutting said of Mr Humphreys presence along with Lord Gill: “He was there in his capacity as Director of the Judicial Office for Scotland.That office was established to provide support to the Lord President under his various roles as set out In the Judiciary and Courts Scotland Act.”

In response to further questions Ms Cutting stated: “The Lord President met the Convenor and Deputy Convenor and the Clerk to the Committee in the Scottish Parliament Building at Holyrood. Steve Humphreys, Director of the Judicial Office attended with him. No prior agreement was reached between the parties on what was to be discussed, referred to or excluded from the discussion.The Lord President saw no need to require an independent record of the meeting.”

“Much Work”: Lord President’s letter made accusations over transparency register proposal:

Lord Gill’s letter of Feb 2013 indicated his opposition to transparency. In Lord Gill’s opening letter to MSPs on the call for a register of judicial interests, the judge claimed “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.”

In what was surely a hint of the sheer hostility felt by the judiciary against a call to bring transparency to judges interests, Lord Gill went onto accuse the media, press, litigants, court users and just about everyone else with an interest in transparency of being potentially hostile and aggressive, simply because someone may wish to raise questions of judges interests similar to the same kinds of questions which are raised of interests in other public officials and those in public life, politics & government.

Clearly angered by the call for transparency, Lord Gill’s letter to MSPs stated: “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.”

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

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