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REGISTER ADVICE: Scottish Parliament asked to recall Legal Affairs Minister over refusal to reveal government’s secret legal advice on register of judges’ interests

14 Oct

Scottish Minister refused to disclose secret legal advice on judges interests. A SCOTTISH Parliament Committee has been asked to recall Legal Affairs Minister Paul Wheelhouse to face questions on secret legal advice commissioned by the Scottish Government on proposals to create a register of interests for the judiciary.

The existence of the secret legal advice – compiled while Lord Brian Gill was head of the Scottish judiciary – and effectively head of the entire justice system – came to light after details obtained via Freedom of Information legislation were handed to MSPs.

The request to recall the Legal Affairs Minister to face questions from the Scottish Parliament’s Public Petitions Committee comes after Paul Wheelhouse refused to discuss or disclose the content & provider of the secret legal advice – with MSPs who are investigating Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The judicial transparency proposal calls for the creation of a publicly available register of judicial 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.

Responding to a written request from the Petitions Committee to disclose information on the secret legal advice, Legal Affairs Minister Paul Wheelhouse told MSPs: “In line with the long standing position under successive Ministerial Codes including the most recent version (2015 edition), other than in exceptional circumstances, the Scottish Government does not comment on the source or content of its legal advice, including why legal advice was sought, nor does it provide specific dates about when legal advice was provided.”

Mr Wheelhouse continued: “I am sorry not to be more helpful in this regard but I am sure you can appreciate the good reasons for this guidance which we follow. Paragraph 2.30 of the Code requires Ministers and officials to ensure that their decisions are informed by appropriate analysis of the legal considerations, and that the legal implications of any course of action are considered at the earliest opportunity. Therefore the Committee can be assured that the Government draws on oral and written legal advice as appropriate from its lawyers, from Counsel and from Law Officers.”

While the content of the legal advice is currently unknown – it is thought to have played a role in the Scottish Government’s efforts to undermine MSPs investigations into plans to require judges to declare their vast wealth, links to big business & other interests.

There are concerns as to why the Scottish Government commissioned the secret legal advice on a petition calling for a register of judicial interests, and then failed to mention the existence of the advice during letters from Scottish Ministers including former Justice Secretary Kenny MacAskill – to the Public Petitions Committee during MSPs investigation of the petition.

The existence of the secret legal advice was also concealed by Scottish Ministers during a full Parliamentary debate on the petition at Holyrood last October 2014 – reported with video footage of the debate, here: Debating the Judges.

And, Legal Affairs Minister Paul Wheelhouse did not reveal the existence of the key legal advice on judicial interests during an evidence session he attended at Holyrood in December 2014 – in which the Minister claimed gangster threats meant there could be no register for judges.

An investigation by the Sunday Herald newspaper later established the Legal Affairs Minister misled the Committee, and no such gangster threats Mr Wheelhouse referred to in evidence, were ever made.

Writing to the Petitions Committee, the petitioner has now sought the recall of Mr Wheelhouse.

The petitioner said: “The content of the legal advice and what it says with regards to the application of equivalent levels of transparency & declarations of interest to the judiciary – as exist with others in public life, is sufficiently important to be debated in public.”

MSPs on the Public Petitions Committee requested details relating to the legal advice after they were handed details obtained via Freedom of Information legislation – revealing the Scottish Government had secretly commissioned legal advice on the petition.

The subject of the Scottish Government’s legal advice was discussed during an evidence session at Holyrood on 23 June 2015 where MSPs heard from Scotland’s current Judicial Complaints Reviewer (JCR) Gillian Thompson OBE – who told MSPs she fully supports the creation of a register of judicial interests.

Voicing support for the petition, Ms Thompson told MSPs: “I do not see that there is a reasonable argument to be made against people who are in public service—I might go further and say, in particular, people who are paid by the public pound—providing information, within reason, about their other activities.”

After taking evidence from Gillian Thompson, Petitions Committee member & Independent MSP John Wilson called for “clarification of when that legal advice was sought and why the Government felt it necessary to seek that advice”.

Since the Petitions Committee asked to see the Scottish Government’s legal advice on judicial interests, it has now been established via an on-going Freedom of Information investigation that Lord Gill may also have taken legal advice on the petition.

Given the legal advice obtained by the Scottish Government was compiled while Lord Brian Gill was head of the Scottish judiciary – it would be surprising if the provider of the legal advice disagreed with Lord Gill’s policy of opposition to the petition and any increase in judicial transparency & accountability.

After the top judge suddenly retired in May 2015, quitting office after he gave 30 days notice, Gill (73) remained bluntly opposed to any moves to compel judges to declare their interests.

The top judge – who spent two of his short three year term as Lord President leading a bitter campaign against plans to require the judiciary to declare their vast wealth & business interests – wrote a series of terse letters to MSPs lobbying against the judicial transparency proposal.

Lord Gill – branded “Lord No-No” for refusing to give evidence at Holyrood – lashed out in letters at the media, litigants, court users & the public, describing all as “aggressive” – in an attempt to shut down an investigation by Holyrood MSPs of judicial vested interests and calls for highly paid judges to register their interests like all others in public life.

At one point, Gill implied he may have to consider restricting the judiciary’s interaction with Scottish Parliamentary Committees. And, in the same letter, the Lord President claimed judges could not be hauled before the Scottish Parliament due to loopholes in the Scotland Act .

Justice Diary recently revealed Lord Brian Gill emerged from his brief summer retirement – taking up an appointment as a supplementary panel judge at the London based UK Supreme Court.

Lord Gill has now finally agreed to give evidence at Holyrood, next month, reported here: U-TURN, M’LORD: Top judge Lord Gill to appear before Scottish Parliament to face questions on judicial transparency & calls to create a register of judges’ interests

NO REVIEW OF JUDICIAL COMPLAINTS REVIEWER:

In a double blow to judicial transparency, Legal Affairs Minister Paul Wheelhouse also told MSPs he did not think four years was long enough to conduct a review of the role of Judicial Complaints Reviewer (JCR).

The Legal Affairs Minister said in his letter: “I agree, in principle, with the proposal for a review of the JCR role. However, I am not minded to commission a review at this stage given the relatively short period of operation of the office and the fact that the role is to be extended by the Tribunals (Scotland) Act 2014.”

“In the circumstances I would propose to consider a review of the role once the office holder is exercising the new functions under the Tribunals (Scotland) Act 2014. The review could then look comprehensively at the role and remit of the JCR, including assessment of the workload, capacity matters etc across the full range of functions carried out by the JCR.”

The Minister’s refusal to commission a review of the office & powers of JCR comes after the current JCR Gillian Thompson called for a review of the role.

JCR Gillian Thompson told the Committee in her evidence: “I have said to the Scottish Government that we are four years into the role and I am the second person in the role so it is probably time to start thinking about the possibility of reviewing whether what was originally envisaged under the primary legislation, which was passed in 2008, is what is still required.”

“As a former civil servant, I am always supportive of the idea that, if we have a policy and a concept and the Parliament has agreed to legislation, once it has been in force for a while, at some point or another—a three or four-year period seems not unreasonable—we should go back to have a look at the legislation to see whether it still meets the requirements.”

Gillian Thompson’s predecessor – Moi Ali resigned from the role of Judicial Complaints Reviewer in 2014 after describing the job as “window dressing” during an evidence session held at Holyrood in September 2013

VESTED INTERESTS INTERVENTION:

Earlier this year it emerged a secret meeting was held in February between Legal Affairs Minister Paul Wheelhouse and Lord Gill during February – to discuss joint efforts between the Scottish Government and senior judicial figures to undermine proposals for increased judicial transparency.

Some weeks after the meeting, Scotland’s First Minister Nicola Sturgeon issued a letter of intervention declaring she felt judges should be able to conceal their interests and other activities – activities which now extend from shareholdings in corrupt businesses to lobbying for fracking interests to tax avoidance and more. The Scottish Government’s attempt to thwart a register of judicial interests was reported in the media here: INTERESTS INTERVENE: First Minister joins top judge in bid to block register of judicial interests

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