Lord President Lord Brian Gill reckons its easier to drop wigs than declare full interests in public register. LET’S face it, appearing in front of a group of ageing, yet influential, wealthy, secretive, and at times argumentative individuals who wear lengthy grey wigs, are draped ever so self indulgently in red & white ermine robes covered in red crosses, carry what appear to be a variety of implements, and on many occasions appear to have difficulty in operating a laptop, difficulty recalling the names of expert witnesses or referring back to evidence from previous hearings, is an intimidating experience. It certainly is an intimidating experience for many in Scotland.
Even more intimidating if you consider that these same individuals all live more or less in the same affluent areas, move in the same circles, go to the same clubs, have offshore investments, own swathes of property while avoiding their name appearing on it, refuse to declare their interests or directorships openly, occasionally threaten the Scottish Parliament when it suits, have numerous serious & serious criminal convictions no one gets to know of, and, not forgetting that some are closely related to each other and switch their names around so you don’t know if you have been before one of their parents or siblings in an earlier hearing.
This is not what you really expect to find in a court is it. Not in Scotland, in 2014. Surely not.
However, as we have seen from well over a year of media investigations and headlines of the secrets of Scotland’s judiciary, together with a full year of debate at the Scottish Parliament’s Public Petitions Committee – this is the true state of fact of Scotland’s courts and the judiciary today, and sadly has been for some time. Whether it is a criminal prosecution, or a civil damages case, these are the lives and the undeclared interests of the judges who hear you out.
The judiciary’s personal, undeclared wealth including extensive family and business links throughout the legal profession, offshore ‘tax efficient’ trusts, ownership of numerous and high value properties through a variety of interesting arrangements, investments, directorships and shareholdings, collectively generate millions of pounds in earnings for the judges and their families each year – yet no one gets to know about it, because the judges have written their own rules exempting themselves from the same requirements of transparency they enforce against the rest of us.
So, when Scotland’s top judge decides it is time to make an attempt to make judges appear more “human” to the public, (but not more transparent or accountable) it is obviously an exercise in newsworthiness.
To this end, Scotland’s top judge, the Lord President Lord Brian Gill earlier this week declared in an official statement that “From Tuesday 22 April 2014 Senators of the College of Justice sitting in the Inner House will no longer wear formal robes and wigs when hearing civil appeals.”
Following a proposal by the Lord President the judges sitting in the Inner House have endorsed this change. However, judges will continue to wear formal robes and wigs when hearing criminal appeals.
Eleven judges currently sit in the Inner House, which is the appellate section of the Court of Session. The Inner House acts as a court of appeal for cases from the Outer House (Court of Session first instance courts) and for appeals in civil cases from the Sheriff Courts, the Court of the Lord Lyon, Scottish Land Court, the Lands Tribunal for Scotland, and other tribunals.
The Lord President has issued a Practice Note that counsel may appear without wig and gown and that solicitors with rights of audience may appear without gowns.
No. 1 of 2014 Sittings of the Inner House
1. This Practice Note has effect from 22 April 2014
2. From the abovementioned date, Judges sitting in the Inner House will, ordinarily, no longer wear wigs and judicial robes. Where this is the case the court will not insist that counsel should appear with wig and gown or that solicitors with rights of audience should appear with gowns
3. Where the court intends to wear wigs and judicial robes, for example at ceremonial sittings of the court, practitioners will be informed accordingly.
4. This Practice Note does not affect existing custom and practice in the Outer House or in the High Court of Justiciary.
Brian Gill Lord President Edinburgh 16 April 2014
Lord Gill said of the changes: “In deciding to sit in civil appeals without robes or wigs the judges of the Inner House are in line with the practice of the United Kingdom Supreme Court. It makes sense in this day and age.”
Yet, it appears that while it is a simple matter for Scotland’s top judge to approve the removal of the judges much coveted symbols of judicial power and vested interests in this day and age, it is not so simple an act nor is it in the judiciary’s best interests to fall into line with the rest of the world in terms of transparency and declare their very much undeclared interests to the Scottish Parliament in connection with calls to create a register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary.
TOP JUDGE DROPS WIGS, CONTINUES PROTESTS AGAINST TRANSPARENCY REGISTER:
Lord Gill’s first letter to MSPs declared judicial 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.”
Top judge Lord Gill refused to go to Holyrood, by letter. In a second reply to the Convener of the PPC, dated 2 April 2013, Lord Gill refused an invitation to attend the Scottish Parliament and face questions from Committee members on issues raised in the petition and to explain his own opposition to the transparency proposal.
Notably, Gill’s second reply did not contain any answers to questions put to him in writing by the Petitions Committee, nor did the judge provide any statistical or analytical evidence on the numbers of recusals which have been undertaken by judges in Scotland’s courts. However, seeking once again to lobby MSPs against any call for transparency of judges interests, the Lord President again referred to the content of an EU report, itself written by judges, who claimed there was no need for a register of judicial interests.
A further invitation was sent to Lord Gill by the Convener of the Public Petitions Committee, asking for answers to questions and again inviting the Lord President to addend the Scottish Parliament to give evidence on Petition PE1458: Register of Interests for members of Scotland’s judiciary
Third letter from top judge refused Holyrood invitation, used Scotland Act loophole. Having received the third letter containing a second invitation to attend Holyrood, Lord Gill wrote back to the Convener of the Public Petitions Committee on the 28 May 2013, again refusing to appear before MSPs to face questions on judges interests and his own opposition to the petition.
However, this time the top judge added a hint that judicial cooperation with Committees of the Scottish Parliament may suffer and must be limited.
In what appears to have been little short of a veiled threat to refuse further judicial cooperation with, and future Committee appearances at the Scottish Parliament, Gill stated: “Judges have from time to time given evidence to committees of the Scottish Parliament on matters that affect the administration of justice in Scotland. I hope that that has been helpful in the legislative process. Judicial participation in the work of the committees must however be kept within prudent limits.”
And, shockingly, Lord Gill then sought to use deficiencies in the Scotland Act to justify his refusal to attend the Public Petitions Committee and answer question from msps.
Gill’s use of Scotland Act against MSPs was reported in the media. Writing in his third letter, Lord Gill said: “Section 23(7) of the Scotland Act provides inter alia that the Parliament may not require a judge to attend its proceedings for the purposes of giving evidence. This is not a loophole. It is a necessary part of the constitutional settlement by which the Parliament is established. Its purpose is to protect the independence of the judiciary, a vital constitutional principle that is declared in section 1 of the Judiciary and Courts (Scotland) Act 2008”
The judge continued: “When a committee invites a judge to give evidence before it, I have to decide whether the subject matter might infringe the principle of judicial independence; and whether the evidence required could be satisfactorily given in writing.”
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 deliberations on Petition PE1458: Register of Interests for members of Scotland’s judiciary can be found here : A Register of Interests for Scotland’s Judiciary