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TRANSPARENCY TIME: Top judge & Scottish Government told to rethink refusal on declarations of judges as Holyrood MSPs support calls to create a register of judicial interests

14 Oct

MSPs voted to support calls for a register to feature judge’s interests. MSPs have overwhelmingly supported a petition urging the Scottish Government to give further consideration to a register of interests for judges – despite Scottish ministers following a ‘scripted’ sick line issued by Scotland’s top judge Lord President & Lord Justice General Brian Gill – who opposes calls for judges to declare their sizeable wealth and hidden links to big business including banks, legal, and other professions.

Last Thursday’s debate in Holyrood’s main chamber, which lasted around 90 minutes saw msps hotly debate proposals for judicial transparency put forward in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The public petition, submitted to the Scottish Parliament’s Public Petitions Committee in late 2012 envisages the creation of a single independently regulated register of interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Since January 2013, members of the Petitions Committee have looked at the issues raised in the petition, and have taken evidence from the now former Judicial Complaints Reviewer (JCR) Moi Ali – who supports the petition. During evidence at the Scottish Parliament’s Petitions Committee last September, Moi Ali told msps there was little transparency or accountability in Scotland’s judiciary.

Scottish Parliament debate on Register of Judicial Interests Thursday 9 Oct 2014

Official record of debate. Opening the debate in Holyrood’s main chamber, David Stewart MSP, Convener of the Scottish Parliament’s Public Petitions Committee told fellow MSPs in his opening address that Media investigations into members of the judiciary “revealed a number of criminal charges and convictions”.

Speaking in support of the petition, Labour MSP Neil Findlay said: “Is it not an outrage that Lord Gill had such contempt for this Parliament that he refused to attend a particular meeting?”

Angus McDonald MSP, who sits on the Petitions Committee said: “Given the spirit of openness and transparency that we in the Parliament so rightly hold in high regard, it was a clear snub to the committee when Lord Gill refused to appear in public.”

John Wilson MSP who is also a member of the Petitions Committee, said: “In the speech Lord Gill gave in Qatar he said a jurisdiction steeped in tradition is slow to react to change.

“He should re-read his own words and give the same speech in Scotland to bring the judicial system up to a standard that we would all like it to hold.”

Labour MSP Graeme Pearson said the petition has raised “issues of concern” and suggested the creation of “a register which would not be used by those who would be vexatious to attack or to pursue the judiciary, but at the same time give us confidence that our courts for the future operate to the best outcome”.

Conservative deputy leader Jackson Carlaw said he was not persuaded that a register is necessary , but criticised Lord President Brian Gill’s refusal to appear before the committee to make his case.

Lord Gill’s response gave the impression that he was “part of an Edwardian establishment disdain of the right of the hoi polloi, as he sees it, to have any understanding of these matters, and that there was a swish of judicial ermine and velvet that should cow into deference the public and the legislator in relation to our right to understand the issues”, Mr Carlaw said.

David Stewart said Mr Cherbi’s petition was inspired by a bill in New Zealand following the resignation of a former Supreme Court judge who was accused of misconduct for “allegedly failing to disclose a large debt he apparently owed to a lawyer appearing in a case before him”.

“The judiciary there (in New Zealand) was not overly enamoured at the suggestion of a register of interests,” Mr Stewart said.

“I think that is a fair assessment of the position here to say that is probably true as well as far as the judiciary are concerned.”

The committee was disappointed at Lord Gill’s refusal to meet with them in public, he said.

Mr Stewart added: “The petitioner has said that the catalyst for his petition was investigations by the Scottish media into members of the judiciary here.

“The petitioner told the committee that the media investigations had revealed a number of criminal charges and convictions.

“The petitioner points out that there is a greater public expectation now in terms of transparency and accountability across all branches of public life. And that the judiciary has a duty to be accountable to the wider community and should be expected to adhere to the same standards as those which apply to others in public life, such as MSPs, ministers, and MPs.”

Mr Pearson said: “My own approach to these things, and it always has been, is that sometimes even though you lose an element of your own privacy it is better to be upfront in these matters and record these things in a register.

“I understand the threat that may attach to that in terms of the pressure that judges could face in the future and I wonder if there is a way, once we give some thought to it, that we could create a register which would not be used by those who would be vexatious to attack or to pursue the judiciary, but at the same time give us confidence that our courts for the future operate to the best outcome.”

Mr Carlaw said: “Amongst my parliamentary colleagues, I should say that, without naming anyone, I have been told quite clearly that “We don’t want any of that”.

“But let me say, I think the minister identified quite ably why in fact we should have confidence in the current process, and why I am not persuaded that we do actually need a register of interests.”

But he added: “I have to say the response of the Lord President was essentially to say “Get your tanks off my lawn”.

“In briefing I have heard from the Law Society of Scotland that they don’t think the Petitions Committee of the parliament is a grand enough committee for the Lord President to have to command his attention.

“I did myself say that it gave the impression that the Lord President was part of an Edwardian establishment disdain of the right of the hoi polloi, as he sees it, to have any understanding of these matters, and that there was a swish of judicial ermine and velvet that should cow into deference the public and the legislator in relation to our right to understand the issues.”

He added: “The appropriate way to have done it would have been for the Lord President to come and in a responsible environment place his case on the record, allow us to have tested it and then quite in all likelihood have agreed with the principle that he had articulated and thereby have advocated why we thought that was the right approach.

“We weren’t able to do that and that’s why we are having the debate today.”

But Legal Affairs Minister Roseanna Cunningham followed the line issued by Scotland’s top judge Lord Gill, who has waged a bitter campaign against the transparency proposal for two years.

The minister, almost quoting word for word from a series of “No” letters issued as proclamations by judge Lord Gill, 72, to the Parliament’s Public Petition Committee insisted “the safeguards currently in place are sufficient to ensure the impartiality of the judiciary”.

Ms Cunningham said: “The Scottish Government considers that it is not necessary to establish a Register of Judicial Interests. It is our view that the safeguards currently in place are sufficient to ensure the impartiality of the judiciary in Scotland.”

In an attempt to justify the Scottish Government’s identical position to that of the Lord President, in opposing the move to make judges declare their interests, the Legal Affairs Minister went on to quote findings from the GRECO report – itself written by judges and members of the legal profession from Europe who also steadfastly oppose any declarations of their significant financial wealth and interests.

Ms Cunningham claimed the GRECO FOURTH EVALUATION ROUND Corruption prevention in respect of members of Parliament, Judges and Prosecutors found “nothing emerged during the current evaluation which could indicate that there is any corruption in relation to judges, nor is there evidence of judicial decisions being influenced in an inappropriate manner”.

Given the duration of the debate and detail, video footage of MSPs who spoke during the debate and the official record will be published on Diary of Injustice in separate articles for the benefit of readers and those following the debate on accountability and transparency within Scotland’s judiciary.

The petition will be heard again in late October by the Scottish Parliament’s Public Petitions Committee who will consider their next move.

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