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JUDICIAL REGISTER: Scottish Parliament probe on judges’ register of interests hears from top Law Professor – room for widening transparency to include more than pecuniary interests, current recusals register is not complete.

07 Sep

Register of judges’ interests good for transparency. A TOP legal academic has told the Scottish Parliament’s Public Petitions Committee there is room for improvement in proposals to create a register of interests for Scotland’s ultra secretive judiciary as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary

In a written submission to MSPs, Professor Alan Paterson of the University of Strathclyde told the Public Petitions Committee “in terms of accountability there is a clear link between the thinking behind calls for a Register of Judicial Interests and the concept of Judicial Recusal”.

However, the Law Professor criticised the weakness of content of the current “Recusal Register” – set up by Lord Gill as a result of a private meeting with MSPs.

Professor Paterson told MSPs: “The Public Register of Judicial Recusals is indeed to be welcomed but it only records the cases in which Scottish judges have actually recused themselves, not the cases in which they have been asked to recuse themselves and have declined to do so, far less those in which they might reasonably have been asked to recuse themselves but were not.”

“In short, we cannot always tell if judges are recusing themselves or declining to recuse themselves in the right cases. One measure which might assist with that issue is to ask whether the decision as to recusal should be left to the judge who has been challenged.”

The judicial transparency proposals – first debated at Holyrood’s Public Petitions Committee in January 2013 – call for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, 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.

A full debate in Holyrood’s main chamber was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was widely supported by MSPs from all political parties.

The written evidence from Professor Paterson to MSPs comes after the Petitions Committee were informed of the Law Professor’s work on judicial transparency.

Published as quotes on the Scottish Parliament Petition Committee’s website, references from a publication by Professor Paterson: “Lawyers and the Public Good: Democracy in Action” – give an account of how registers of interest could enhance judicial transparency.

In the book, Professor Paterson writes: “Slightly surprisingly, the justices of the UK Supreme Court, who have rightly in my view been praised for being more transparent on a range of fronts than the House of Lords, have chosen on this front to be less transparent than they were in the House. In the House they were subject to a Register of Interests, but  in  February  2010s5 they indicated that they  had  decided  not  to  have  a Register of Interests in the Supreme Court since (1) other judges in the United Kingdom do not have to complete a Register of Interests and (2) it would not be appropriate or indeed feasible for there to be a comprehensive register of the interests of all the justices. With the greatest of respect to the justices, I wonder if they have got this one right.”   

“The Supreme Court along with the rest of the (senior) judiciary is an arm of government, and democratic accountability normally means that we expect those who govern us to declare  their  interests  –  and not just on an as and when basis. A detailed Register of Interests might even have obviated the Pinochet affair.”

“My third route to enhancing the accountability of the judiciary is to introduce greater measures of disclosure and transparency. Each and every justice of the US Supreme Court has to complete a detailed annual return setting out all their financial interests, including all shareholdings and offices held in other organisations. Moreover, when they have been nominated for appointment they are  required to complete a very detailed questionnaire  about  their interests, publications and membership of organisations whether it be the masons, churches or golf clubs (single sex or otherwise).” 

“Recusal is a tricky area and I’m not sure that the answer is always to leave it to the judge who has been challenged to determine whether he or she has a disqualifying interest. I am confirmed in this   line of thinking by Grant Hammond, the judicial author of what is now the leading textbook in the area. The legal test is that laid down in Porter v. Magill* namely, would the hypothetical fair-minded, fully informed independent layperson having  considered the facts conclude that there was a real possibility that the tribunal was biased. My difficulty  is  how  the  judges  are  to  know  the  answer to that question.”

PE1458/XX Judicial Register of Interests Petition PE1458

Writing in a letter to the Public Petitions Committee prior to the summer recess, Professor Patterson told MSPs: I refer to your letter of 18 March 2016 requesting that I write to you indicating my views on the action called for in the petition. I am not sure that I have a great deal to add to what I said in my Hamlyn lecture – A Paterson, Lawyers and the Public Good (Cambridge University Press, 2012) at pp.152-4. I indicated there, that at least at the level of final appeal courts there was an argument for enhancing the accountability of the judiciary by introducing greater measures of disclosure and transparency.

Each and every Supreme Court justice in the US Supreme Court has to complete a detailed annual return setting out their financial interests including gifts and hospitality. When appointed they also have to complete a comprehensive questionnaire about their interests, publications and memberships of clubs and organisations (including the Masons).  I am not aware that these requirements have caused particular problems in the USA.

When they were members of the House of Lords, the Law Lords had to complete a register of interests (which has since been considerably strengthened) and it was therefore a surprise to me that these same judges when they became UK Supreme Court Justices declined to have a Register of Interests, a position which they still adhere to. This despite the fact that Lord Hoffmann by failing to declare his involvement with Amnesty International (which might now appear in a Register of Interests) precipitated an unprecedented crisis in the House of Lords, the aftermath of which was felt for nearly a decade.

That said, whether a Register of Judicial Interests which is limited to pecuniary interests would be a worthwhile introduction for the Court of Session and the Sheriff Court is a difficult issue (as the evidence provided to the Petitions Committee has demonstrated) and one on which I am not sure I have a concluded view.

However, in terms of accountability there is a clear link between the thinking behind calls for a Register of Judicial Interests and the concept of Judicial Recusal. Here I think there is room for improvement in Scotland, particularly if there is to be no Register of Judicial Interests. 

The Public Register of Judicial Recusals is indeed to be welcomed but it only records the cases in which Scottish judges have actually recused themselves, not the cases in which they have been asked to recuse themselves and have declined to do so, far less those in which they might reasonably have been asked to recuse themselves but were not.

In short, we cannot always tell if judges are recusing themselves or declining to recuse themselves in the right cases. One measure which might assist with that issue is to ask whether the decision as to recusal should be left to the judge who has been challenged.

I am confirmed in this line of thinking by Grant Hammond, the judicial author of what is now the leading textbook in the area Judicial Recusal (Oxford: Hart Publishing, 2009).

Just as we no longer leave decisions on contempt of court which relate to attacks on the judge to be decided by the judge in question, so it could be argued that requests for judicial recusal should be handled on an expedited basis by a bench of at least two different judges.    

I hope these thoughts have been of assistance. Yours sincerely Professor Alan Paterson OBE

While Professor Paterson said in his letter to MSPs he had no concluded view on whether a register limited only to pecuniary interests of judges would be worthwhile, it is widely understood in the media the proposals before the committee do actually call for a much wider and encompassing register of interests for the judiciary – similar to the same registers of interest which exist for politicians and public bodies across the country.

The petition’s call for a more complete register of interests was brought to the fore during an evidence session with Lord Brian Gill held in November 2015 – during which Committee member John Wilson made it clear in questions to the judge that any register of judicial interests proposed by the petition was expected to include much more than pecuniary interests.

The lengthy Scottish Parliament probe on judicial interests – now about to enter it’s fourth year – has previously heard evidence from key players in the justice system who all support the introduction of a register of judicial interests.

During an evidence session held at Holyrood in September 2013 – Moi Ali, Scotland’s first ever Judicial Complaints Reviewer (JCR)- 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.

However, the move to create a register of judges’ interests was bitterly resisted by retired top judge Lord Gill, who spent two years of his short three year term as Lord President –  fighting the Petitions Committee on moves to have him appear before MSPs to give evidence.

Diary of Injustice recently reported on written evidence provided by Scotland’s latest top judge – Lord Carloway to the Public Petitions Committee on plans to require judges to declare their interests.

Lord Carloway (real name: Colin Sutherland) is a known opponent of the judicial transparency proposals.

Earlier this year, Lord Carloway 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.

Lord Gill – who spent two of his three year term fighting the judicial transparency proposals – was dubbed “Lord No-No” for his refusals to give evidence to MSPs on judges’ undeclared links to big business, secret criminal records & hidden wealth, handed the claim to the Scottish Parliament.

Refusing several invitations from MSPs to attend the Petitions Committee in person, the top judge sent a series of letters to MSPs – demanding the judiciary remain exempt from the public’s expectation of transparency in Government and those in public life.

As the petition was debated at Holyrood in the Lord President’s absence, it was revealed Lord Gill billed taxpayers for a five day state visit to Qatar. The top judge also travelled to numerous other international destinations – all charged to taxpayers.

An investigation by the Scottish Sun newspaper also revealed Scotland’s top judges spent £26,000 on thirty three international trips funded by taxpayers – including journeys to destinations such as Russia, Israel, Switzerland,Germany, France, Bulgaria, Lithuania.

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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