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DECLARE IT, M’LORD: MSPs seek further evidence on proposals to create register of judges’ interests, Lord President to be invited to face Holyrood Committee after May 2016 elections

03 Mar

Lord Carloway to face questions on judicial register. A THREE YEAR Holyrood probe on proposals to require judges to register their interests is to be continued into the next Parliamentary session – with a call to invite Scotland’s latest top judge – Lord Carloway – to give evidence on plans to bring the judiciary into line with transparency rules which apply to all other branches of Government.

The decision to call in the Lord President – who is on record opposing proposals to require judges to declare their interests – came last week after MSPs sitting on the Scottish Parliament’s Public Petitions Committee heard further evidence and submissions on Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Speaking in favour of continuing the petition, Petitions Committee Convener Michael McMahon MSP (Scottish Labour, Uddingston and Bellshill) said: “We have written to the new Lord President, whose position is no different from that of the outgoing Lord President. However, we invited the outgoing Lord President to come to the committee to discuss the petition; does the committee want to extend the same invitation to the new Lord President, so that we can explore the issue?”

Mr McMahon continued: “There is still a live debate on the matter, and I would certainly be reluctant to close the petition without having exhausted the discussion and examined the issue—almost to destruction, I think. There are serious questions to ask.”

Committee member Kenny MacAskill MSP (SNP, Edinburgh Eastern) asked for the petition to be placed in the Committee’s legacy paper for the next Petitions Committee – which will come into being after the elections to the Scottish Parliament  on 5 May 2016.

The former Justice Secretary – who is set to publish a book revealing more on his decision to release Abdelbaset al-Megrahi – convicted of the bombing of Pan Am Flight 103 over Lockerbie in December 1988 – also hoped the next Petitions Committee would consider the process of selecting a new judge for the US Supreme Court to fill the vacancy after the recent death of Justice Antonin Scalia.

Mr MacAskill said “It would also be up to the future committee to consider what will be on-going in the United States of America, where judicial declarations go to an extreme that we might not wish to emulate—I am thinking of the replacement of Justice Scalia.”

John Wilson MSP (Independent, Coatbridge North and Glenboig) agreed with moves to keep the petition open, and backed calls to contact the Lord President, and a University of Strathclyde Law Professor who has researched judicial interests.

Mr Wilson said: “The petitioner has suggested that the committee write to Professor Alan Paterson of the University of Strathclyde, who has apparently done some independent academic research on the subject. It might be as well writing to the Lord President and asking him to consider whether he would appear before the committee. That might also be something for the legacy paper. We should also suggest that the committee invites Professor Alan Paterson to give some independent academic scrutiny of what has been requested in the petition.”

Mr Wilson also revealed former Judicial Complaints Reviewer (JCR) – Moi Ali, had recently written to The Scotsman newspaper, urging the establishment of a register.

During an evidence session held at Holyrood in September 2013 – Ms Ali backed the creation of a register of judicial interests – providing MSPs with a powerful first hand, honest and highly detailed account of the workings of Scotland’s judiciary and lack of judicial transparency & accountability.

Current Judicial Complaints Reviewer Gillian Thompson also backed plans to require judges to declare their interests, during an evidence  session of the Public Petitions Committee held in June 2015.

The cross party supported proposals – debated at the Scottish Parliament on 9 October 2014 – call 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.

Video footage & transcript of Public Petitions Committee debate:

Petition PE1458 Register of judicial interests Scottish Parliament 23rd February 2016

Judiciary (Register of Interests) (PE1458) 23 February 2016

The Convener: PE1458, which was brought by Peter Cherbi, is on a register of interests for members of Scotland’s judiciary.

We have written to the new Lord President, whose position is no different from that of the outgoing Lord President. However, we invited the outgoing Lord President to come to the committee to discuss the petition; does the committee want to extend the same invitation to the new Lord President, so that we can explore the issue? There is still a live debate on the matter, and I would certainly be reluctant to close the petition without having exhausted the discussion and examined the issue—almost to destruction, I think. There are serious questions to ask.

Kenny MacAskill (Edinburgh Eastern) (SNP): There is clearly still debate about the matter. It was the Judicial Complaints Reviewer who initially indicated a change in tack, which was upheld.

Where we can take the matter and whether it should be this committee that pursues it, I am not sure. Lord Carloway, the new Lord President, has made his position quite clear. It seems to me that the question is whether anyone else wants to pick the issue up. We could ask the new Lord President the same questions that we asked of the former Lord President, but given that we have his response in writing, I do not know where that would take us.

The question is whether the Justice Committee or the Scottish Government wants to pursue the issue. My recollection is that it is about six months since we heard from the minister but there was no indication of any change in perspective.

The Convener: There are still issues to be debated and it would be useful to get the new Lord President’s views on the record. The question is whether we, as an out-going committee, extend that invitation or put it in our legacy paper so that the new committee can pick it up and run with it.

Kenny MacAskill: I would be inclined to leave it in the legacy paper on the basis that we have had a reasonably full letter from Lord Carloway. If we were to squeeze him in within the next fortnight, I am sceptical as to what we could get from him that we have not already had in writing.

John Wilson: The petitioner has suggested that the committee write to Professor Alan Paterson of the University of Strathclyde, who has apparently done some independent academic research on the subject. It might be as well writing to the Lord President and asking him to consider whether he would appear before the committee. That might also be something for the legacy paper. We should also suggest that the committee invites Professor Alan Paterson to give some independent academic scrutiny of what has been requested in the petition.

I spent half an hour this morning trying to get the updated register of interests of judicial members of the Scottish Courts and Tribunals Service. I am assured that it is on the site somewhere, but although I tried for half an hour this morning, it was impossible to find. The latest register of interests that I have comes from last year and so is not up-to-date enough to include Lord Carloway. I know that he registered no interests when he was Lord Justice Clerk.

We have been told that there are safeguards in place, but it would be useful to know how the general public get the information that they are looking for. If it is difficult to get the Scottish Courts and Tribunals Service judicial service register, it raises other questions about where we are going and whether we are making it more difficult for people to find out judicial interests.

The former Judicial Complaints Reviewer, Moi Ali, has recently written to The Scotsman, urging the establishment of a register—just as she did when she gave evidence. The current Judicial Complaints Reviewer has also said that it would be helpful to have a register of judicial interests.

I would like to think that the future Public Petitions Committee could take the issue forward and invite Lord Carloway and others to come and give evidence, perhaps answering some of the questions that arise further down the road.

The Convener: The suggestion is that we put it in our legacy paper and write to Professor Paterson, as John Wilson suggested, so that his response would be available to the new committee, which could take it into consideration. Is everyone happy with that?

Members indicated agreement.

Kenny MacAskill: I am fine with that. It would also be up to the future committee to consider what will be on-going in the United States of America, where judicial declarations go to an extreme that we might not wish to emulate—I am thinking of the replacement of Justice Scalia.

The Convener:It is interesting to watch what is happening there and compare it.

Writing in the Scotsman newspaper, Moi Ali said :

“I hope that when the Scottish Parliament’s petitions committee reconsiders a proposal to implement a register of interests for the judiciary next Tuesday, it does not accept the Lord President’s advice to throw out this petition.”

“When I was Scotland’s first independent Judicial Complaints Reviewer, I gave evidence to the committee in support of a register of interests. I am a ministerially-appointed board member in Scotland, where I am rightly required to complete a register of interests to provide assurance to the public that my dealings are above board. For the same reason, the judiciary should also complete such a register.”

“The judiciary can take away people’s assets, separate families, and lock people away in prison. Given this position of power, it is essential not only that they have absolute integrity – but crucially, that they are seen to be beyond reproach.”

“A register of interests is a way of demonstrating that a judicial office holder is impartial and has no vested interest in a case – financially, through family connections, club/society membership or in any ­other way.”

“Conversely, the refusal to keep a register of interests creates public suspicion that in turn undermines judicial credibility. Thus, a register of interests is good for the judiciary and good for the public.”

JUDICIAL BLOCK: Transparency on judicial interests not welcome in my court – Lord Carloway.

Last month, Diary of Injustice reported on written evidence provided by Lord Carloway to the Public Petitions Committee on plans to require judges to declare their interests.

Lord Carloway (real name: Colin Sutherland) told MSPs: “The proper administration of justice could be inhibited by the disclosure of the judiciary’s otherwise confidential financial arrangements. In that connection, there is the possibility that an individual judge may be the subject of misconceived criticism, deriving from the disclosure of personal financial information, where those interests are tangential and de minimis.”

The move by Scotland’s latest Lord President to undermine the Scottish Parliament’s efforts to increase judicial transparency follows a bitter three year campaign against the petition – led by Carloway’s former boss – Lord Brian Gill – which culminated in an ‘aggressive’ evidence session with the former top judge at Holyrood in November 2015.

Responding to Lord Carloway’s letter, the petitioner told the Committee: “Lord Carloway presents the same view of his predecessor Lord Gill in that a register of interests for the judiciary is unnecessary or undesirable. Similarly, as Lord Gill has already inferred, Lord Carloway speaks of constitutional problems if the judges are asked to declare their interests.”

“In reality, there are no constitutional issues created by this petition, nor is there an impediment to the creation of a register of judicial interests. Such a register already exists for the Scottish Court Service and Tribunals Board, of which Lord Carloway and others declare their interests.”

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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