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JUDICIAL REGISTER: Scottish Parliament move forward on FIVE YEAR judicial interests probe as Ex-Cabinet Secretary Alex Neil calls on MSPs to create legislation for a register of judges’ interests

Petitions Committee moves forward on judicial register. A COMMITTEE of MSPs conducting a FIVE YEAR Scottish Parliament investigation of Petition PE1458: Register of Interests for members of Scotland’s judiciary – have decided to move ahead on proposals requiring judges to declare their interests in a publicly available register.

The move by Holyrood’s Public Petitions Committee who met on Thursday 7 December to look for a way forward – comes after the petition secured powerful backing of former Cabinet Secretary Alex Neil MSP (SNP).

In an interview with The National newspaper, and a posting on Mr Neil’s Facebook page, Alex Neil said : “It is now time for the Petitions Committee itself to look at using the powers of parliamentary committees to introduce a Bill to set up a judicial register of interests.”

Alex Neil added: ““There is no doubt in my mind at all that it is long overdue. I do not see why judges should be any different from ministers or MSPs, and they should need to declare interests as most people in public service do these days.

“A Bill of this nature is badly needed, and if it can be done on an all-party basis through the Petitions Committee, then the committee’s members should not wait and should act now to sponsor a Bill.

“I am very supportive of the Petitions Committee, which I think is a very good committee, and it is now time for them to seriously consider bringing forward their own Bill on this matter, as I have no doubt that the case for such a register has been thoroughly made out.”

The Public Petitions Committee have now decided to consider the position in private at a later meeting – and formulate letters to Lord Carloway and Justice Secretary Michael Matheson which will be published in due course.

During the short hearing last Thursday, Deputy Convener Angus MacDonald MSP (SNP) who is known to support the petition, commented: “..we must move forward. We have been considering the petition for five years and Mr Cherbi’s latest submission shows a degree of frustration, which I share.”

The published decision states: PE1458 by Peter Cherbi on Register of interests for members of Scotland’s judiciary. The Committee agreed to consider a letter to the Lord President and the Cabinet Secretary for Justice in private at a future meeting.”

The latest developments in the 22nd hearing of Petition PE1458 on calls to create a register of judges’ interests comes after MSPs previously heard over sixty two submissions of evidence, during twenty one Committee hearings, including a private meeting between two MSPs and a top judge, and fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2017.

The judicial interests petition – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls 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 report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1450 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary

A report on the Public Petitions Committee meeting of 7 December 2017 & video coverage follows:

Register of Judicial Interests – Petition PE 1458 Petitions Committee Scottish Parliament 7 December 2017

Judiciary (Register of Interests) (PE1458)

The Convener: The fourth and final item today is consideration of five continued petitions. The first petition for consideration under this item is PE1458, from Peter Cherbi, on a register of interests for members of Scotland’s judiciary

We last considered the petition in June, when we took evidence from Lord Carloway, the Lord President. We agreed to reflect on that evidence and we have a briefing note that summarises the issues that came up in that evidence session. We also have two submissions from the petitioner that convey his response to the evidence and provide information about additional developments in relation to the recusal of judges.

As members are aware, the petition has been under consideration for five years and we have a good understanding of the arguments for and against the introduction of a register of interests for judges. There has been some movement on that.

Do members have any comments on what we should do next?

Angus MacDonald: As you say, convener, the petition has been on-going for five years. It is worth noting that it was originally based on the consideration of the Register of Pecuniary Interests of Judges Bill in New Zealand, which was dropped after we started to take evidence on Peter Cherbi’s petition.

We have taken extensive evidence on the petition over the past five years, including from the former Lord President, Lord Gill, the current Lord President, Lord Carloway, as well as the former Judicial Complaints Reviewers Moi Ali and Gillian Thompson. We appreciate the time that they have all given to the committee.

The petition has already secured a result, to the extent that there is more transparency because judicial recusals are now published, which did not happen previously. It is worth pointing out that that still does not happen in England, Wales and Northern Ireland. We should be proud that the petition has achieved that.

However, I note that the petitioner has suggested that we take evidence from Baroness Hale, President of the UK Supreme Court, as well as from the new Judicial Complaints Reviewer. It would stretch the bounds of the petition to take evidence from Baroness Hale, as the petition urges the Scottish Government to create a register of judicial interests in Scotland. I am not sure that our remit extends to the UK Supreme Court. Mr Cherbi should perhaps take that aspect of the matter to the UK Parliament Petitions Committee, which may have the remit.

The Convener: I sense that we have agreement to the approach outlined by Angus MacDonald, which is not to take further evidence, but to bring together our conclusions and write to the Scottish Government, recognising that there has been some progress. Do we agree to draft a letter on our conclusions in private, although the final letter will be in the public domain?

Members indicated agreement.

Angus MacDonald: I agree, but we must move forward. We have been considering the petition for five years and Mr Cherbi’s latest submission shows a degree of frustration, which I share.

The Convener: We understand that, but there should also be recognition of the fact that there has been some progress.

Do members agree to send the letter to the Lord President as well as the cabinet secretary?

Members indicated agreement.

The National reported on the latest developments and support from former Cabinet Secretary Alex Neil MSP:

Call for Scottish judges to register interests gets backing from MSP

Martin Hannan Journalist 7th December 2017

A PETITION calling for judges to openly register their financial and other interests has received its biggest boost to date.

Five years to the day after it was lodged at the Scottish Parliament, former minister Alex Neil MSP will today call on Holyrood’s Petitions Committee to start the process of bringing a Bill before Parliament.

The transparency petition was lodged by legal affairs journalist and campaigner Peter Cherbi on December 7 2012, and it will be considered again today — the 22nd time it has gone in front of the Holyrood committee.

The SNP’s Alex Neil has followed the petition with interest and has actively campaigned for the judicial register of interests to be introduced.

He told The National yesterday: “It is now time for the Petitions Committee itself to look at using the powers of parliamentary committees to introduce a Bill to set up a judicial register of interests.

“There is no doubt in my mind at all that it is long overdue. I do not see why judges should be any different from ministers or MSPs, and they should need to declare interests as most people in public service do these days.

“A Bill of this nature is badly needed, and if it can be done on an all-party basis through the Petitions Committee, then the committee’s members should not wait and should act now to sponsor a Bill.

“I am very supportive of the Petitions Committee, which I think is a very good committee, and it is now time for them to seriously consider bringing forward their own Bill on this matter, as I have no doubt that the case for such a register has been thoroughly made out.”

Both Lord Carloway and Lord Gill, the current and former Lord Presidents of the Court of Session respectively — the senior judge position in Scotland — have opposed such a register of interests.

At least two High Court judges — Lord Carloway and Lady Smith — already declare their interests because they are members of the board of the Scottish Courts and Tribunal Service.

They did so for the first time last month, along with Sheriff Duncan L Murray, after a Freedom of Information request.

Welcoming Alex Neil’s intervention, Cherbi said: “For five years, the Scottish Parliament has considered a petition calling for a register of judicial interests.

“In this time, the petition has generated more than 62 submissions of evidence, 21 committee hearings, a private meeting between MSPs and a top judge, 15 speeches by MSPs during a full Holyrood debate, and two appearances by judicial investigators — who both support the petition.

“In two of those meetings, two top judges were left grasping at straws when asked why the judiciary should be above public expectations of transparency.

“This proposal to create a register of interests for judges applies the same level of transparency to the judiciary which already exists in other parts of the justice system such as the police, prosecutors and court administration and will bring judges into line with all others in public life who are required to register their interests.

“Along the way, the petition has gained wide cross-party support in the Scottish Parliament, wide support in the media, and the invaluable and fantastic support of two judicial complaints reviewers — Moi Ali, and Gillian Thompson.

“There is significant public interest in this petition going ahead into legislation, and if the Lord President is still against the idea of judges declaring their interests, our sovereign Parliament must act and set in law what the public expect — that judges register their interests.”

A further report from the National featured developments from the hearing and the decision to move ahead on the petition:

Committee nears decision on register of interests for judges five years after petition

Martin Hannan Journalist 9th December 2017

A PETITION to the Scottish Parliament calling for judges and sheriffs to publicly register their interests seems to be nearing a successful outcome – five years after it was submitted.

The Public Petitions Committee has agreed to finalise its conclusions on the list of signatories submitted in December 2012 by legal campaigner and journalist Peter Cherbi.

The Holyrood committee agreed to consider those conclusions in private at a future meeting before writing to Scotland’s senior judge, Lord Carloway, the Lord President, as well Justice Secretary Michael Matheson.

Committee convener Johann Lamont said members would be aware the petition had been under consideration for five years and they had a “good understanding” of the arguments for and against a register.

Angus MacDonald, SNP MSP for Falkirk East, called for a “move forward” and told the committee: “This petition has been ongoing for five years to this date exactly. It’s fair to say we have taken extensive evidence on this petition over the last five years, not least from the former Lord President Lord Gill and the current Lord President Lord Carloway, as well as judicial complaints reviewers Moi Ali and Gillian Thompson.

“It’s fair to say this petition has already secured a result, to the extent that there is now more transparency, with the publication of judicial recusals [judges excusing themselves from a case due to conflict of interest] which didn’t happen before, and it’s worth pointing out that this still doesn’t happen in England, Wales and Northern Ireland, so Mr Cherbi should be proud that his petition has achieved that.”

Cherbi told The National: “It has taken five years for the petition to travel through 22 committee hearings and a full debate in 2014 – during which it was evident from the 15 speeches by MSPs that cross-party support exists for the creation of a register of judicial interests.

“The case has been made for judicial disclosures – there is no rational case against it – now it is time for Holyrood to legislate to require judges to register their interests. What struck me during the public debate and contact with people was that many thought judges already declared their interests and published their recusals.

“People I talked with over the course of these five years were genuinely shocked when they found out the judiciary did neither, instead preferring to duck and dive behind oaths and guidelines the judiciary wrote and approved themselves.

“The public are entitled to expect the highest standards of transparency from all those in public life, and the judiciary are no different.

“Judges must face up to the fact that those who hold the power to take away freedoms, to change or alter the lives of others, to overturn legislation from our elected parliaments – and to do all this without any reasonable scrutiny – must now be brought up to the same, or higher, levels of transparency and accountability as the public expect of those in public life, the justice system, and government.

“Perhaps the move to open up scrutiny of a very closed shop judiciary will also lead to the opening up of judicial appointments and an increased role for the Scottish Parliament in hearing in public from those who want to become members of the judiciary.”

JUDICIAL REGISTER MUST GO FORWARD:

The move to create a register of judicial interests enjoys cross party support, is widely supported in the media and  in public debate as a result of media coverage.

The petition secured early support of Scotland’s Judicial Complaints Reviewer Moi Ali, and her successor as JCR – Gillian Thompson.

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013, giving early backing to the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Scotland’s second Judicial Complaints Reviewer Gillian Thompson OBE also supported  the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

A full debate on the proposal to require judges to declare their interests 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 overwhelmingly supported by MSPs from all political parties.

A report on Lord Brian Gill’s evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests – Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

A report on Lord Carloway’s widely criticised evidence to the Scottish Parliament in July 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

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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JUDICIAL REGISTER: Calls to invite Supreme Court President Lady Hale to Holyrood for evidence on judicial interests register – as Judicial Office concede on addition of 500 Justices of the Peace to recusals register & publication of tribunal recusals

MSPs hear calls to invite UKSC President Lady Hale to Holyrood. A FIVE YEAR Scottish Parliament investigation of Petition PE1458: Register of Interests for members of Scotland’s judiciary has received further submissions – calling for MSPs to invite Baroness Hale to give evidence at Holyrood.

Calls for Lady Hale – President of the UK Supreme Court (UKSC) – to be invited to appear before the Scottish Parliament – come on the back of evidence presented to MSPs on the lack of transparency relating to recusals in UK’s top court – which also serves Scotland as the court of last resort.

While courts in Scotland now publish details of judicial recusals – where judges stand down from cases due to a conflict of interest – the UK Supreme Court has refused to take on this extra transparency measure.

Transparency campaigners cite the Supreme Court’s refusal to publish recusals as creating an imbalance in transparency with a court based in London which Scots based litigants & accused persons must still rely on for a right of appeal.

Submissions filed with the Scottish Parliaments Public Petitions Committee also urge MSPs to quiz Lady Hale on the current stance of the UK’s top court on declarations of judicial interests in a publicly available register – a move currently opposed by the Supreme Court according to policy currently posted on the UKSC’s website.

A supplementary submission lodged earlier this week also reveals major concessions from the Judicial Office for Scotland after discussions between the petitioner and the Head of Strategy and Governance at the Judicial Office.

MSPs have been made aware an agreement has been reached where up to five hundred Justices of the Peace are now to be included in the Register of Judicial Recusals – created by ex Lord President Brian Gill in February 2014 – in response to meetings with MSPs on Petition PE1458.

However, the submission asks MSPs to seek answers on why Justices of the Peace – who comprise the bulk of Scotland’s judiciary – were excluded from the recusals register when it was set up in April 2014.

An additional concession from the Judicial Office passed to MSPs also reveals that recusals which take place on the many tribunals under the wing of the Scottish Courts and Tribunals Service (SCTS). will be published at a date yet to be decided.

MSPs have also been asked to consider calling Ian Gordon – the new Judicial Complaints Reviewer (JCR), who took over from Gillian Thompson and hear his views on declarations of judicial interests.

Both previous Judicial Complaints Reviewers – including well known transparency campaigner Moi Ali – fully support the petition calling for the creation of a register of judicial interests in Scotland.

A full report on Moi Ali’s evidence to MSPs and support for proposals calling for the creation of a register of judicial interests is reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Meanwhile it can be revealed written evidence of failures to declare interests at the UK’s top court has been passed to journalists and MSPs for study.

The material, identifies a judge who took part in a case in the Court of Session on multiple occasions who then took a seat on the Supreme Court – and knocked back an appeal from the same case he had ruled on, without declaring any former interest in the case after blocking the route of appeal.

Later today, members of the Scottish Parliaments Public Petitions Committee will consider the request to call Lady Hale and obtain more answers on judicial recusals.

UK SUPREME COURT: MOST POWERFUL, NOW LEAST TRANSPARENT:

The current stance of the UK Supreme Court has previously been used by judges in Scotland to avoid creating a register of judicial interests in response to the cross party supported petition still under investigation at the Scottish Parliament.

UK Supreme Court on declarations of judicial interests statement:

Background: Prior to the creation of the Supreme Court of the United Kingdom, the highest court in the UK was the Appellate Committee of the House of Lords. The members of the Committee were Lords of Appeal in Ordinary appointed under the Appellate Jurisdiction Act 1876. Although those appointments gave them full voting and other rights in the House of Lords, the Law Lords had for some years voluntarily excluded themselves from participating in the legislative work of the House. Notwithstanding that, they were bound by the rules of the House and provided entries for the House of Lords Register of Interests.


On the creation of the Supreme Court the Lords of Appeal in Ordinary became Justices of the Supreme Court. They retain their titles as Peers of the Realm, but are excluded by statute from sitting or voting in the House, for so long as they remain in office as Justices of the Supreme Court. As such, they are treated as Peers on leave of absence; and do not have entries in the House of Lords Register of Interests. Historical information remains accessible via the House of Lords website.

Other judges in the UK, such as the judges of the Court of Appeal and the High Court in England and Wales, and in Northern Ireland, and the Court of Session in Scotland, do not have a Register of Interests. Instead they are under a duty to declare any interest where a case comes before them where this is or might be thought to be the case.

Current position:  Against this background the Justices have decided that it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believed to be complete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound, and which is now publicly available on the UKSC website.

In addition all the Justices have taken the Judicial Oath – and they all took it again on 1 October 2009 – which obliges them to “do right to all manner of people after the law and usages of this Realm without fear or favour, affection or ill will”; and, as is already the practice with all other members of the judiciary, they will continue to declare any interest which arises in the context of a particular case and, if necessary, recuse themselves from sitting in that case – whether a substantive hearing, or an application for permission to appeal.

The latest submissions filed with the Scottish Parliament’s Public Petitions Committee in relation to Petition PE1458: Register of Interests for members of Scotland’s judiciary are reprinted below:

PE1458/IIII: Petitioner submission of 4 September 2017

I would like to draw to the attention of members the appointment of Baroness Hale as President of the UK Supreme Court, which also serves as the most senior court in the UK for appeals from Scotland.

Noting Baroness Hale’s recent comments in relation to the appointment of judges (Let ministers pick judges, says Supreme Court chief Baroness Hale, The Times, 23 August 2017) and other matters, I request Baroness Hale be invited to give evidence before the Petitions Committee.

As the President of the UK Supreme Court, Baroness Hale will be able to give a substantive account of why UKSC Judges no longer consider they require to adhere to the expectation of completing a register of interests as they did pre-UKSC days as Law Lords in the House of Lords.

Members may also wish to raise questions to Baroness Hale on the disparity of judicial transparency between Scotland and UKSC on judicial recusals, where as members are aware, the Judiciary of Scotland now list details of recusals, compared to the UKSC in London – where this information has not yet been made available to all UK users of the Supreme Court.

The position of the UKSC on the current lack of a register of judicial interests has entered Committee discussions on numerous occasions, and in evidence. Lady Hale’s appointment as President would be a significant opportunity for this Committee to hear from the top UKSC judge on a court which also serves the interests of Scotland.

Lord Carloway evidence to Petitions Committee 29 June 2017: In response to evidence given by Lord Carloway to members I note Lord Carloway claims the creation of a register of interests would deter recruitment of candidates to become judges.

In no other walk of life including politics – does the existence of a register of interests deter recruitment of individuals to a profession or industry. A register of interests is designed to promote accountability and transparency. If someone were to be deterred from a job due to the existence of a register of interests there would quite properly be questions on why transparency would hinder someone from applying for a position of such authority, power – and – responsibility to serve the community.

Lord Carloway stated the critical distinction for judges in this case is that the judiciary require to be independent of any form of government – a point no one or this petition is questioning.

However, and to quote Scotland’s first JCR Moi Ali in a letter to the Petitions Committee of 23 April 2014 “The position of the judiciary is incredibly powerful. They have the power to take away people’s assets, to separate families, to lock people away for years. Some of these people will not have committed a crime.”

To add to Ms Ali’s comments, members will be aware a decision by the judiciary can effectively revoke an item of legislation created by the Scottish Parliament, or the House of Commons if a legal challenge in court to a law is successful. Examples of such cases – including HMA V Cadder – have occurred over recent years, requiring emergency legislation to address issues of successful judicial challenges.

One branch of the Executive which can overturn legislation from another branch, or our elected Parliaments, clearly requires the same implementation of transparency as the other.

In light of the judiciary’s position as the most powerful branch of the Executive – and their considerable effect on public life, policy and legislation, an equivalent, or even greater level of transparency is required to be applied to the judiciary by way of creating a register of judicial interests.

In his evidence, Lord Carloway goes on to claim a register of judicial interests should only be created if the judiciary detect corruption within it’s own ranks.

This is not a credible position in terms of public expectation of transparency in 2017.

Registers of interest exist to ensure transparency and accountability in public life and there is now clearly a requirement for members of the judiciary to declare their interests as practiced by all others in public life.

In conclusion of Lord Carloway’s evidence, I note the Lord President was unable to provide a single legitimate example of harm caused to the judiciary by the creation of a register of interests, nor one single reason why the judiciary should be exempt from the same levels of public transparency which rightly apply to everyone else.

There is cross party backing for the creation of a register of judicial interests, as has already been demonstrated at Holyrood during the motion debate of October 2014, and widespread support in the media and public, and from both Judicial Complaints Reviewers for judges to be required to declare their interests.

Creating a register of interests for members of Scotland’s judiciary is the right thing to do.

Members will also be aware of the appointment of a new Judicial Complaints Reviewer – Mr Ian Gordon, formerly the Convener of the Standards Commission for Scotland.

Mr Gordon’s appointment, along with concerns from the outgoing JCR Gillian Thompson, and calls for a review of the role and powers of the JCR – were reported in the Sunday Herald (Calls for more funding as new judicial watchdog appointed, Sunday Herald, 15 August 2017).

As Mr Gordon is well versed in standards, and public expectation of transparency, I ask the Committee call Mr Gordon to give evidence on his experience in relation to standards in public life, and any thoughts he may have as the new Judicial Complaints Reviewer – with regards to the creation of a register of judicial interests.

Members may also wish to note the retiring JCR – Gillian Thompson who gave evidence to the Committee in July 2015 has published information in her 2014/15 annual report in relation to her continued support for this petition, which available on the JCR’s website here: Judicial Complaints Reviewer Annual Report 2014-2015

All annual reports from the Judicial Complaints Reviewer including those from Moi Ali, are available here: Judicial Complaints Reviewer – Annual Reports

In light of the progress on this petition, public interest, and public debate, I would like to encourage this Committee to begin discussions with other Committees to determine which is the best way to advance this petition forward.

There is now five years of work, from MSPs, Public Petitions Committee members past & present, PPC clerks, two Judicial Complaints Reviewers, Parliamentarians from other iurisdictions, legal academics, submissions from members of the public, wide support in the media and across the spectrum of politics & public for the implementation of a register of judicial interests.

This team effort should rightly culminate in what will be a significant gain for the justice system, judiciary and courts – in terms of transparency and accountability, and a gain for this Parliament in creating the legislation to bring about such judicial transparency, and increase public confidence in our courts.

Finally, as Lord Carloway raised the subject of problems in judicial recruitment if a register is created, I urge the Committee write to the Sheriff’s Association, the Scottish Justices Association, the Law Society of Scotland and the Faculty of Advocates on this particular subject, seeking their views in writing, so these issues can become a matter of public record in this debate.

PE1458/JJJ: Submission from the Petitioner, 29 November 2017

A further development of interest to members with regards to the Register of Judicial Recusals – created by former Lord President Lord Brian Gill as a result of this petition in April 2014.

During the creation of the Register of Judicial Recusals in 2014, some 400 plus members of the judiciary – Justices of the Peace – were excluded from the register for no apparent reason.

Recent communications with the Judicial Office and further media interest in the petition[has prompted the Judicial Office to finally include Justices of the Peace in the Register of Judicial Recusals – with a start date of January 2018.

This follows an earlier development after Lord Carloway gave his evidence to the Committee, where the Judicial Office agreed to publish a wider range of details regarding judicial recusals, A copy of the revised recusal form for members of the Judiciary has been provided by the Judicial Office and is submitted for members interest.

Additional enquiries with the Judicial Office and further media interest on the issue of Tribunals which come under the Scottish Courts & Tribunals Service (SCTS) and Judicial Office jurisdiction has produced a further result in the Judicial Office agreeing to publish a register of Tribunal recusals.

I urge members to seek clarification from the Judicial Office and Lord President on why Justices of the Peace, who now comprise around 500 members of the judiciary in Scotland, were excluded from the recusals register until now – as their omission from the recusals register has left a distorted picture of judicial recusals in Scotland.

Since my earlier submission of 4 September, the Scottish Courts & Tribunals Service has published their Annual Report, which contains a Register of Interests for SCTS Board members, including several members of the judiciary, available here: Scottish Courts & Tribunals Service Annual Report 2016-2017

While the register exists for a handful of judges who sit on the SCTS Board – including Lord Carloway, and does include further detail on some financial holdings of the judiciary, as provided by the Judicial Office SCTS Board shareholdings register – there is clearly a format by which this same register, with enhanced requirements of disclosure as appear in other jurisdictions, could be applied to all members of Scotland’s judiciary.

Finally, I wish to draw attention to members of the status of the Norwegian Register of Judicial Interests, which is a very comprehensive register, and could well be used as a template for a similar register of judicial interests in Scotland.

The Norwegian register of judicial interests is available here: Norway – Register of Judicial Interests. I urge members to contact Norway’s judiciary to seek comments on their register of judicial interests, and if necessary invite evidence on Norway’s implementation of such a register and how it impacts on judicial transparency.

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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CRY WOLFFE: Judicial Office hit with new conflict of interest claims as Court of Session papers reveal £9 million damages claim against Chief Constable & Lord Advocate James Wolffe QC was set to be heard by the Lord Advocate’s wife – Judge Lady Wolffe

Court details reveal judge scheduled to hear case against her own husband. SCOTLAND’S judiciary are facing fresh allegations of conflict of interest after it emerged a multi million pound damages claim against the Lord Advocate and Scotland’s Chief Constable for wrongful arrest and financial damages – was set to be heard by a judge who is the wife of the Lord Advocate.

The NINE million pound damages claim against Scotland’s top cop and top prosecutor has been lodged by David Whitehouse – a former administrator at Rangers FC – who is seeking financial damages from Police Scotland’s Philip Gormley and Lord Advocate James Wolffe QC.

A copy of the Court Rolls handed to the media at the time reveal Lady Sarah Wolffe QC – an outer house senator of the Court of Session – was scheduled to hear the case involving the claim involving the Lord Advocate – her own husband – A295/16 David Whitehouse (represented by Urquharts) v Liam Murphy &c (represented by Ledingham Chambers for SGLD – Scottish Government Legal Directorate) – on November 15 2017.

Liam Murphy is currently listed as a Crown Office Procurator Fiscal on “Specialist Casework”.

However, Lady Wolffe appears to have been removed from the hearing, with no official comment from the Judicial Office or Scottish Courts and Tribunals Service (SCTS).

Claims have since been made Lady Wolffe was suddenly dropped from the hearing when it ‘emerged at the last minute’ her husband – Lord Advocate James Wolffe – was involved in the case.

A report from a source claims a second Court of Session Judge – Lady Wise QC – was then scheduled to hear the case.

However, the silent replacement of Lady Wolffe with Lady Wise – has now raised serious questions as to why there are no references to any note of recusal made by Lady Wolffe – who clearly had a conflict of interest in the case given one of the core participants in the action is her own husband – the Lord Advocate.

The case then takes another turn after media reports of the hearing on Wednesday 15 November reveal a third judge – Lord Arthurson QC – eventually heard the case, and has since arranged for a four day hearing for legal arguments.

The background to the civil damages claim stems from when David Whitehouse and Paul Clark were appointed to the former Rangers Football Club PLC in 2012 after owner Craig Whyte declared the business insolvent.

The Duff and Phelps administrators faced a failed prosecution bid by the Crown Office in relation to the collapse of the Ibrox oldco, while Mr Whyte was found not guilty of fraudulently acquiring the club during a trial in June.

The charges against David Whitehouse and his colleague Paul Clark were later dropped.

Both PoliceScotland Chief Constable Phil Gormley and Lord Advocate James Wolffe claim police and prosecutors acted in accordance with correct legal procedure.

Yet questions remain on how the Crown Office acted in this case, and many others where prosecutions which ultimately collapse, appear to be based on flimsy or even non-existent or unprovable evidence.

Police arrested and charged Mr Whitehouse and Mr Clark during the investigation into businessman Craig Whyte’s takeover of the club in 2011. Charges were dropped following a court hearing before judge Lord Bannatyne in June 2016.

Lawyers acting for Mr Whitehouse claimed their client was “unlawfully detained” by detectives in November 2014. They also said that throughout the period of detention, there was no reasonable grounds to suspect that Mr Whitehouse had broken the law.

Mr Whitehouse also claimed that police obtained evidence without following proper legal procedure. An indictment against Mr Whitehouse was issued without any “evidential basis”, his lawyers said.

It is also claimed the actions of police and prosecutors are said to have damaged Mr Whitehouse’ reputation of being a first-class financial professional and led to a £1.75m loss in earnings.

A legal document states: “He lost income, in particular his entitlement to bonus payments and future earnings. His reputation was severely damaged.”

At the hearing on Wednesday 15 November  – originally scheduled to be heard by Lady Wolffe –  lawyers acting for Mr Whitehouse appeared during a short procedural hearing where it also emerged Mr Whitehouse’s colleague Mr Clark is also suing the chief constable and Lord Advocate.

At the hearing, Court of Session outer house Judge Lord Arthurson arranged for a four-day hearing into the legal issues surrounding the case to take place at a later date.

Given the similarities of the two claims, lawyers are now examining whether the two actions should be rolled into a single case.

The case has emerged from the circumstances surrounding Mr Whyte’s takeover of Rangers in 2011. Mr Whitehouse and Mr Clark worked for Duff & Phelps and were appointed as administrators of the club in February 2012. Four months later, the company’s business and assets were sold to a consortium led by Charles Green for £5.5m.

Mr Whitehouse believes that his human rights were breached as a consequence of the actions of the police and prosecutors.

The chief constable and the Lord Advocate claim that police and prosecutors acted in accordance with correct legal procedure.

Lawyers acting for the top cop & Lord Advocate claim that Mr Whitehouse’s human rights were not breached and that he did not suffer any loss or injury as a consequence of the actions taken by the police and prosecutors.

Lawyers acting for the Chief Constable & Lord Advocate also claim should be dismissed because the Lord Advocate is exempt from civil action from people who were the subject of a legal investigation.

However, the use of the Lord Advocate’s immunity from civil action – in times where the Crown Office have often been found to have got things wrong in court, or have acted improperly during investigations and the application of criminal charges, should now come under increased external scrutiny and ultimately be withdrawn from legislation.

The Judicial Office, and the Scottish Courts and Tribunals Service have both refused to issue any further comment or statement on this case, despite the Judicial Office informing journalists a statement would be issued, over two weeks ago.

However, questions remain as to why no recusal has been posted by the Judicial Office with regards to Lady Wolffe stepping aside from the case.

Clearly, had a register of judicial interests existed in a form currently being studied by MSPs of the Scottish Parliament’s Public Petitions Committee, incidences such as these could be avoided.

Lady Wolffe Biography:

The Hon Lady Wolffe was appointed a Judge of the Supreme Courts in March 2014.

Lady Wolffe qualified as a solicitor in 1992 and worked at the Bank of Scotland legal department from 1992 to 1993. She called to the bar in 1994 and until 2008 practised as a junior counsel, mainly in commercial and public law. From 1996 until 2008 she was also standing junior counsel to the Department of Trade and Industry and its successor departments. Since 2007 she has been an ad hoc advocate depute. She was appointed QC in 2008. As senior counsel she has practised mainly in commercial and public law. She was a member of the Disciplinary Tribunal of the Faculty of Advocates 2005-2008 and has been a member of the Police Appeals Tribunal since 2013. Mrs Wolffe emigrated to the United Kingdom in 1987.

Crown Office Specialist Casework Function:

The Crown Office Specialist Casework Function – currently led by Deputy Crown Agent: Lindsey Miller – comprises a number of specialist units involved in the delivery of case preparation and the provision of  other legal services in support of COPFS core functions where the nature, size and/or complexity of the case or subject matter means that it is most effectively dealt with within Specialist Casework. This Function is managed nationally by Liam Murphy, Procurator Fiscal Specialist Casework, but delivered from various locations throughout Scotland.

The Specialist Casework units are:

  • Appeals
  • Criminal Allegations against the Police
  • Health and Safety Crime (including the Helicopter Incident Investigation Team)
  • International Co-operation Unit
  • Proceeds of Crime Unit
  • Scottish Fatalities Investigation Unit   (including Road Traffic Fatalities Unit)
  • Serious and Organised Crime  (including Counter-Terrorism and Economic Crime)
  • Wildlife and Environmental Crime Unit

The Civil Recovery Unit also sits within Specialist Casework.

The Specialist Casework and the High Court Functions together are known as Serious Casework.

 

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ALL THE LORD PRESIDENT’S INTERESTS: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary

Scottish Parliament probe judicial interests & register proposal. A FIVE YEAR Scottish Parliament probe into Petition PE1458: Register of Interests for members of Scotland’s judiciary has generated over sixty two submissions of evidence, twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate.

The proposal, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls 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.

The move to create a register of judicial interests enjoys cross party support, is widely supported in the media and  in public debate as a result of media coverage.

The petition has also secured the support of Scotland’s Judicial Complaints Reviewers Moi Ali, and Gillian Thompson.

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013.

At the hearing, Ms Ali supported the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Scotland’s second Judicial Complaints Reviewer Gillian Thompson OBE also backed the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

A full debate on the proposal to require judges to declare their interests 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 overwhelmingly supported by MSPs from all political parties.

A report on Lord Brian Gill’s evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests – Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

A report on Lord Carloway’s widely criticised evidence to the Scottish Parliament in July 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

The timeline of debates at the Scottish Parliament’s Public Petitions Committee on Petition PE1458:

Petition PE1458 Register of Interests for Scottish Judiciary Scottish Parliament 8 January 2013

The Committee decided to call for submissions on the petition from the Lord President, the Law Society of Scotland, Faculty of Advocates and Crown Office.

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament

Petition PE1458 by Peter Cherbi calling on the Scottish Parliament to legislate to create a Register of Interests for Scotland’s judiciary was heard today 5 March 2013. The Committee decided to call for further evidence and also to invite the Lord President Lord Gill and others along to speak to MSPs and be questioned on the matter.

Petition 1458 Register of Interests for Scotland’s Judiciary Scottish Parliament 16 April 2013

 

A petition calling for a register of interests for Scotland’s judiciary has again been debated at the Scottish Parliament, where upon the Lord President Lord Gill’s refusal to attend the Petitions Committee to give evidence, the Petitions Committee decided to repeat its invitation to Lord Gill to attend, and also agreed to seek the views of the Judicial Appointments Board and the Judicial Complaints Reviewer.

Petition 1458 Register of Interests for Scottish Judiciary 25 June 2013 Scottish Parliament

Members of the PPC decided to invite Moi Ali, the Judicial Complaints Reviewer to give evidence and also to contact Dr Kennedy Graham MP of the New Zealand Parliament. Dr Graham currently has a bill before MPs in New Zealand calling for a Register of Pecuniary Interests of Judges. During the debate it was noted Lord Gill has refused to attend the Scottish Parliament to discuss the petition and judge’s interests, but has attended the Justice Committee to discuss court closures in Scotland.

Evidence from Judicial Complaints Reviewer Moi Ali on Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament

Moi Ali, Scotland’s Judicial Complaints Reviewer gives evidence to MSPs at the Scottish Parliament regarding Public Petition PE1458 calling for a Register of Interests for Scotland’s Judiciary.

Petition 1458 Register of Judicial Interests Public Petitions Committee 28th January 2014

Following a private meeting between Scotland’s top judge, the Lord President Lord Brian Gill, and the Convener & Deputy Convener of the Public Petitions Committee of the Scottish Parliament,the Committee agreed today, 28 January 2014 to defer consideration of Petition PE1458 by Peter Cherbi calling on the Scottish Parliament to create a register of judicial interests, pending receipt of a letter from the Lord President.

The Convener, David Stewart MSP and Deputy Convener, Chic Brodie MSP reported back to members on what had been said at the private meeting with Scotland’s top judge who refused to attend the Scottish Parliament to be questioned on his deep seated opposition to the proposal to requie Scottish judges to declare all their interests, hidden wealth, family & business links and other matters which may impact on cases being heard before judges in Scottish courts.

Committee Member John Wilson MSP requested details of the private meeting with the judge be put on the official record of the Committee, and Jackson Carlaw MSP drew attention to the fact had it not been for the Petitions Committee asking tough questions there would not even be any letters forthcoming from Lord Gill.

The petition will be heard once a letter has been received from Scotland’s top judge, who appears to be set against any attendance to face questions on why judges should not be required to register their interests, unlike all other public officials, politicians, Government Ministers and others.

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

The Committee agreed to seek time in the chamber for a debate on the petition. The Committee also agreed to write to the Lord President and the Scottish Government.

Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament Public Petitions Committee

The Committee agreed to continue the petition, and is seeking a debate in the main chamber of the Scottish Parliament. The Committee also agreed to write to the Lord President and the Scottish Government for more detailed responses.

The next fifteen video clips are from the debate held at the Scottish Parliament on Thursday 09 October 2014, in which MSPs, Scottish Government ministers and members of the Public Petitions Committee spoke in the debate. The full text of the speeches of each MSP can be found here: DEBATING THE JUDGES: Cross party support for proposal seeking a register of interests for members of Scotland’s Judiciary as Scottish Parliament holds first ever debate on judicial accountability & transparency

David Stewart MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

David Stewart: The committee’s motivation in giving consideration to the issue and in seeking time in the chamber to debate it is a point of principle and comes from the starting point of there being an assumption of openness and transparency in all areas of public life in order to shine a light, if you like, into every corner of Scottish society.

Roseanna Cunningham MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Roseanna Cunningham: The setting up of a register of judicial interests would be a matter for the Lord President, as head of the judiciary in Scotland. The Lord President takes the view that a register of pecuniary interests for the judiciary is not needed. Furthermore, a judge has a greater duty of disclosure than a register of financial interests could address.

Graeme Pearson MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Graeme Pearson: Until the petition was discussed, there was no knowledge of recusals in the public domain. I welcome the fact that, as of April this year, the Lord President has introduced a register of recusals. It is fair to say that without the petition and the work of the Public Petitions Committee, such a register would probably not have been considered.

Jackson Carlaw MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Jackson Carlaw: It is perhaps difficult to take on the judiciary, because judicial independence is always mentioned. As I said, that is a cornerstone of democracy, but because there has been no separation of accountability and independence, it is easy for the judiciary to say, ‘We are independent, so don’t interfere in that.’ Unless independence and accountability are separated, legislation will continue to include no requirement for more openness and transparency.”

Angus MacDonald MSP Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

Angus MacDonald: If we as elected members have to register and declare our interests, I see no reason why members of Scotland’s judiciary should not be subject to a full and publicly available register of judicial interests.

Anne McTaggart MSP Register of Judicial Interests debate – Petition PE1458 Scottish Parliament 9 Oct 2014

Anne McTaggart: In Scotland, claims continue to emerge of trials that have been unfair as a result of religious, ethnic or national bias. As long as those claims continue to exist, it is the Parliament’s job to promote fair government. In conclusion, I declare my support for the petition and encourage support from all the other MSPs.

David Torrance MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct

David Torrance: Although I understand that conflicts of interest are on occasion declared in open court prior to taking on a case, the introduction of a register of interests would provide a more consistent and sound basis on which to move forward.

Neil Findlay MSP speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

Neil Findlay: We need to do much more to make our society less secretive and less closed, and I think that the register that we are discussing is just one step towards that end. I, for one, give it my full support and urge other MSPs to do the same.

Joan McAlpine MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct 2014

Joan McAlpine: I gently suggest to the Lord President, in whose gift it is to set up a register, as we cannot legislate for it in the Parliament, that he should be mindful of the need for the judiciary to move with the times, along with every other public institution, in order to retain the confidence of the public.

John Wilson MSP speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

John Wilson: A register of interests for judges is an area in which we could move forward and build more confidence in the system that we have in place.

Stewart Stevenson MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Stewart Stevenson: I encourage Lord Gill and his successors to think about recalibrating their relationship with Parliament.

Jackson Carlaw MSP closing speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 October 2014

Jackson Carlaw: Mind you, I would point out that we, too, swear an oath, but we nonetheless still subscribe to a register.

Elaine Murray MSP Register of Judicial Interests Petition PE1458 Scottish Parliament 9 October 2014

Elaine Murray: “Given the position of power held by the judiciary, it is essential not only that they have absolute integrity–but crucially, that they are seen to have absolute integrity.” Therefore, the issue is not that anyone doubts the judiciary’s integrity, but that the public need to see that integrity.

Roseanna Cunningham MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Roseanna Cunningham: A number of members referred to the register of interests of MSPs. However, the situation is different, because we are directly accountable to the electorate.

Chic Brodie MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Chic Brodie: There is concern that a register would have unintended consequences—a phrase that has been used often in the debate—for the judiciary’s freedom and privacy and its freedom from harassment from the media or dissatisfied litigants. Those are concerns, but they are no less so for others in public life, including MPs and MSPs, who may be attacked publicly for non-declaration of interests. Although it is argued that the establishment of a register may have the unintended consequence of eroding public confidence in the judiciary, it might equally be argued that its absence might have the same effect.

The debate at the Scottish Parliament now returns to deliberations of the Public Petitions Committee on Petition PE1458 – A Register of Interests for members of Scotland’s Judiciary:

Register of interests for judiciary Petition PE1458 Scottish Parliament 28 October 2014

Paul Wheelhouse Register of Judicial Interests Petitions Committee Scottish Parliament 9 Dec2014

Minister for Community Safety Paul Wheelhouse gives evidence to the Public Petitions Committee on their investigation of proposals to create a register of judicial interests as called for in Petition PE1458. Mr Wheelhouse on behalf of the Scottish Government opposes the creation of a register which will inform the public about what judges have, their interests, links to big business, banks, shares in corporations and tax avoidance scams.

Petition 1458 Register of interests for Scotland’s Judiciary Scottish Parliament 12th May 2015

The Scottish Parliament’s Public Petitions Committee discussed Petition PE1458 on Tuesday 12 May 2015. The Committee agreed to call Gillian Thompson OBE – Scotland’s current Judicial Complaints Reviewer to give evidence on the creation of a register of judicial interests.

Evidence of Gillian Thompson Judicial Complaints Reviewer Register of Interests for Judges Petition PE1458 Scottish Parliament 23 June 2015

The Scottish Parliament’s Public Petitions Committee discussed Petition PE1458 on Tuesday 23 June 2015. The Committee took evidence from Gillian Thompson OBE – Scotland’s current Judicial Complaints Reviewer who gave evidence in support of the creation of a register of judicial interests.

Lord Brian Gill evidence to Public Petitions Committee Scottish Parliament 10 Nov 2015

Lord Brian Gill, former Lord President and Lord Justice General of Scotland gives evidence to the Scottish Parliament’s Public Petitions Committee on Petition PE1458 calling for a register of interests for judges.Gill refused two earlier invitations to appear before the Public Petitions Committee in 2013 and was dubbed “Lord No No.”. Several times during the debate the 73 year old ‘retired’ Lord Gill called on the panel of MSPs to show faith in the UK judiciary and scrap the petition along with calls for greater transparency of judges interests.

Petition PE1458 Register of Interests for Judges Public Petitions Committee Holyrood 1 Dec 2015

Petitions Committee member Kenny MacAskill MSP calls for the committee to invite the new Lord President upon their appointment to appear to give evidence. Convener Michael McMahon MSP agrees to write to the new Lord President.

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

The Committee decided Lord Carloway is to be called to give evidence, MSPs will also contact Professor Alan Paterson of the University of Strathclyde for evidence.

Petition PE1458 Public Petitions Committee Scottish Parliament 29 Sept 2016

The Petitions Committee decided to call Lord President Lord Carloway to give evidence, and also hear from Professor Alan Paterson of the University of Strathclyde.

Petition PE1458 Register of Interests for judges Public Petitions Committee 22 Dec 2016

MSP Angus MacDonald (SNP) moves to call Professor Alan Paterson to give evidence to the committee and for msps to consider evidence from the Professor then to contact the Lord President, Lord Carloway.

Professor Alan Paterson Petitions Committee PE1458 19th Jan 2017

Professor Alan Paterson evidence to Public Petitions Committee on creating a register of interests for members of Scotland’s judiciary.

PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

Members of the Scottish Parliament’s Public Petitions Committee decide to invite Lord President Lord Carloway to provide evidence before the Committee at a future date, and to invite Alex Neil MSP to appear before the Committee at the same meeting. The decision was taken after Lord Carloway offered concessions on the recusal register of Scotland’s judiciary – created as a result of this petition.

Lord Carloway Register of Judges interests Petitions Committee Scottish Parliament 29 June 2017

Lord Carloway gives evidence to the Public Petitions Committee on a proposal to create a register of judicial interests for members of Scotland’s judiciary. The proposal has been investigated by the Scottish Parliament for five years, there is wide support for the register, from cross party msps to the media to both Judicial Complaints Reviewers.

The Petition will next be heard on Thursday 7 December 2017 where the Public Petitions Committee will be asked to consider taking evidence from Baroness Hale, President of the UK Supreme Court, and to seek further evidence on the operation of Norway’s Register of Judicial 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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END OF CLAIMS: Rogue lawyer who claimed £600K in two years abandons £100K case against Scottish Legal Aid Board – over release of damning report revealing ‘unnecessary, deliberate and excessive’ legal aid claims

Lawyer abandons claim against legal aid board for £100K. AN INVESTIGATION has revealed a rogue lawyer – previously accused of making “unnecessary and excessive” claims for more than £600K Legal Aid in two years – attempted to sue the Scottish Legal Aid Board (SLAB) for £100,000 over release of a report detailing legal aid claims.

The three year court case – registered in the courts by Kilmarnock based solicitor Niels S Lockhart during December 2013 – finally came to an end in 2016 – with legal aid chiefs absolved of any blame for the release of a damning report which raised serious concerns over Lockhart’s multiple claims for legal aid public cash.

The size of the legal aid claims put Lockhart’s one man law firm higher up the scale of legal aid payments than many law firms with multiple partners, and advocates.

Last week, Legal Aid Chiefs finally admitted in a Freedom of Information disclosure to journalists“the case A665/13 Niels Lockhart v The Scottish Legal Aid Board was a court action raised by Mr Lockhart at the Court of Session in which he sought payment of damages of £100,000 from SLAB. The court action has since been concluded.”

The response to the journalist continued: “You will recall that in early 2010 you submitted an FOI request to us, and that on 16 March 2010 we responded to your request by forwarding to you a report in relation to Mr Lockhart. This release of information to you was alleged by Mr Lockhart to be a breach of confidentiality by SLAB. SLAB defended the action.”

SLAB was represented in the action by in-house solicitors, and instructed counsel, John MacGregor, advocate.

The costs incurred by SLAB were: Counsels fees £2,100.00; Court dues £202.00; Printing cost of court documents; £92.07 Total; £2,394.07

The statement in the FOI response issued by SLAB concluded: “The court action was terminated in 2016 by agreement. Decree of absolvitor was granted in favour of SLAB together with an order of expenses in favour of SLAB in the sum of £1,750. No monies were found payable, or paid, to Mr Lockhart by SLAB.”

However, similar enquiries to the Scottish Courts and Tribunals Service (SCTS) – revealed court staff had been ordered to refuse to disclose details relating to Lockhart’s attempt to sue the Scottish Legal Aid Board.

A spokesperson for the SCTS initially said: “I’m told that typically we can’t reveal very much as you were not a party to the action. I’m told that we can say that the case concluded on 28 June 2016 and that it was a Joint minute and the defender was absolved.”

When pressed for further details, the spokesperson added: “I am afraid I cannot say what the case was about or about any amounts of money. I can say that the case was registered on 19/12/13, it was called on 24/1/14,  it did not call in court, it was sisted until early 2016 then concluded on 28 June 2016.”

Kilmarnock based solicitor Niels S Lockhart was subject of a lengthy investigation by the Scottish Legal Aid Board from 2005 to late 2010 over vastly inflated claims for Civil Advice & Assistance Legal Aid.

Legal Aid chiefs then send their report to the Law Society of Scotland, who carried out an investigation into Lockhart and the detailed SLAB report.

However, sources at the Legal Aid Board revealed a string of delays during the Law Society investigation, including a series of ‘complaints reporters’ who were tasked to study the SLAB report and recommend what action if any should be taken against Lockhart.

After several Law Society investigators had either refused to look at Lockhart’s legal aid claims, or finalise a report, a version was sent to the Scottish Legal Aid Board – which legal aid chiefs claimed they could not release because they had no permission from the Law Society of Scotland.

A timeline of events established that on 5 June 2005 the Scottish Legal Aid Board sent a report to the Law Society of Scotland in terms of S32 of the Legal Aid (Scotland) Act 1986 against the sole practitioner firm of Niels S Lockhart, 71 King Street, Kilmarnock. The secret report, obtained under Freedom of Information laws, can be downloaded here: SCOTTISH LEGAL AID BOARD S31 COMPLAINT REPORT TO THE LAW SOCIETY OF SCOTLAND : NIELS S LOCKHART(pdf)

The Legal Aid Board report outlined a number of issues that had been identified during the review of case files & accounts which raised concern about Mr Lockhart’s conduct and which fell to be considered as a breach of either Regulation 31 (3) (a) & (b), relating to his conduct when acting or selected to act for persons to whom legal aid or advice and assistance is made available, and his professional conduct generally. These issues illustrated the repetitious nature of Mr Lockhart’s failure to charge fees “actually, necessarily and reasonable incurred, due regard being bad to economy”

The heads of complaint submitted by the Scottish Legal Aid Board to the Law Society of Scotland were : (1) Excessive attendances, (2) Lack of Progress, (3) Splitting/Repeating Subject Matters, (4) Inappropriate Requests for Increases in Authorised Expenditure, (5) Matters resubmitted under a different guise, (6) Standard Attendance Times, (7) Attendances for Matters Not Related to the Subject Matter of the Case, (8) Unreasonable Charges, (9) Double Charging for Correspondence, (10) Account entries not supported by Client Files, (11) Attempt to Circumvent Statutory Payment Procedure for Property Recovered or Preserved, (12) Continued Failure to act with Due Regard to Economy.

The report by the Scottish Legal Aid Board revealed that, of all firms in Scotland, the sole practitioner firm of NS Lockhart, 71 King Street, Kilmarnock, granted the highest number of advice and assistance applications for “interdict” (392) for the period January-October 2004.The next ranked firm granted 146, while the next ranked Kilmarnock firm granted only 30.

The report stated : “While conducting a selective analysis of Niels S Lockhart’s Advice and Assistance accounts, it was clear from the outset that much of his business comes from “repeat clients” and/or members of the same household/family, whom he has frequently admitted to Advice and Assistance. The analysis revealed persistent patterns of excessive client attendances, the vast majority of which are irrelevant, unnecessary and conducted without due regard to economy.”

“It was also clear that Niels S Lockhart makes grants for a number of interlinked matters, where there is clearly a “cross-over” of advice. Consecutive grants are also often made as a continuation of the same matter shortly after authorised expenditure has expired on the previous grant.”

“This appears to the Board to be a deliberate scheme by Niels S. Lockhart to make consecutive grants of Advice and Assistance on behalf of the same client for the same matter, for personal gain. By so doing, he has succeeded in obtaining additional funds by utilising new initial levels of authorised expenditure for matters where, had further requests for increases in authorised expenditure under the initial grant been made to the Board, they would with every likelihood have been refused by Board staff.”

“Closer scrutiny of Niels S Lockhart’s accounts and some client files has given rise to a number of other serious concerns, e.g. numerous meetings, standard of file notes, encouraging clients to advance matters while demonstrating a lack of progress.”

“After a meeting between SLAB officials & Mr Lockhart on 14 April 2005, Mr Lockhart was advised that SLAB’s Executive Team had approved of his firm’s accounts being removed from the guarantee of 30-day turnaround for payment of accounts, and that henceforth, to allow the Board the opportunity to satisfy itself that all fees and outlays had been properly incurred and charged by the firm, he would be required to submit additional supporting documentation and information with his accounts (including client files).”

The report continued : “Over the next few months, Mr Lockhart telephoned Accounts staff many times, often on a daily basis, repeatedly asking questions about the type of charge they considered acceptable or unacceptable in a variety of situations. Staff reported that, despite their having given Mr Lockhart the same answers time and again (both via correspondence and over the telephone),he continued to submit accounts with unacceptable charges. In a final effort to counter these continuing problems and to emphasis the Board’s stance in relation to the various issues of concern, our Accounts Department sent him a letter on 23 December 2005.”

“Mr Lockhart did not provide a written response to this correspondence. He did however contact Mr McCann of the Legal Defence Union, who wrote to the Board seeking a meeting with Board officials to try to resolve the payments issue. Our view however was that this would not advance matters as Mr Lockhart had been given a clear steer both after the April 2005 meeting and in the December when Accounts wrote to him on a number of matters.”

However, a key error was made by the Legal Aid Board, who stunningly failed to interview any of Mr Lockhart’s clients despite SLAB’s claims of excessive legal aid claims.

The SLAB report revealed : “Board staff have not interviewed any of Mr Lockhart’s clients as we have no reason to believe that, for example, the multitude of meetings that he held with them—sometimes more than twice daily—did not take place; our concern is that they DID take place and he has sought to claim payment for these multitudinous meetings,very few of which could be described as necessary and reasonable. We believe that such work had no regard to the principle of economy: our contention is that it is highly unlikely that any private paying client would be willing to meet the cost of the service provided by Mr Lockhart. That aside, there are cases set out in the report where it is difficult to see what advice or assistance has actually been provided. Our Accounts staff are continuing to assess a number of his accounts and examining the corresponding client files which indicate repetition of the issues that gave rise to our initial concerns.”

The report’s findings concluded : “From April 2002—March 2005, Niels S Lockhart was paid £672,585 from the Legal Aid Fund. Of this, £596,734 (89%) was in relation to Advice and Assistance cases, with £570,528 (85%) solely in relation to Civil Advice and Assistance.”

“In the Board’s view, the ranges of actions taken by Niels S. Lockhart towards achieving those payments are not those appropriate to a competent and reputable solicitor.”

“Based on the supporting evidence he arranges for, or permits, his clients to attend his office on numerous occasions for excessive, unnecessary and often irrelevant meetings. In the main, these do not appear to have advantages for their further welfare or advance their case, but merely act as a mechanism for the firm to exploit the Legal Aid Fund by charging for these unnecessary and unproductive meetings.”

“The nature of subject matters is often repeated, resulting in numerous duplicate/multiple/consecutive grants submitted under various guises, thus avoiding the Board’s computerised checks on subject matter. This pattern of conduct is deliberate,recurring and persistent, serving—in the Board’s view—as a device to generate considerable additional income for the firm to the detriment of the Scottish Legal Aid Fund.”

Further documents released by the Scottish Legal Aid Board during 2015 – Extra Payments to Niels Lockhart – in response to a Freedom of Information request revealed Niels S Lockhart was paid a further £34,711 (excl VAT) of taxpayer funded legal aid by the Legal Aid Board – even though by that time he was already barred from claiming for any further legal aid work.

Historical payment accounts published by the Scottish Legal Aid Board also reveal Lockhart received a whopping £1.2million (£1,213,700) of public cash since the Legal Aid Board began publishing the names of firms and the size of payments from 2003 onwards.

From 2003 to 2013, Neils Lockhart claimed the following amounts of publicly funded legal aid: £280,200 in 2003-2004, £321,400 in 2004-2005, £95,400 in 2005-2006, £160,800 in 2006-2007, £133,300 in 2007-2008, £82,000 in 2008-2009, £65,800 in 2009-2010, £67,400 in 2010-2011, £7,200 in 2011-2012, £200 in 2012-2013

The Sunday Mail newspaper reported on the details of the now revealed court case:

Lawyer who made ‘eye-watering legal aid claims’ sued for £100,000 in compensation from taxpayer

Niels Lockhart said the Scottish Legal Aid Board (SLAB) had hurt his reputation amid the release of a damning report.

By Russell Findlay 26 November 2017 Sunday Mail

A rogue lawyer demanded £100,000 of taxpayers’ cash after legal aid chiefs revealed his history of inflated claims.

Niels Lockhart, 66, said the Scottish Legal Aid Board (SLAB) damaged his reputation by releasing a damning report which laid bare “unnecessary and excessive” payments.

He accused them of breaching his confidentiality and sued them for £100,000 – but has now dropped the claim.

The Sunday Mail obtained the report in 2011. We told how Lockhart claimed more than £600,000 of legal aid in two years and was accused of deliberately ramping up expenses.

The SLAB report stated: “He arranges for, or permits, his clients to attend his office on numerous occasions for excessive, unnecessary and often irrelevant meetings.”

They said the meetings merely acted as a mechanism for the firm to exploit the legal aid fund.

Legal reform campaigner Peter Cherbi, who unearthed the SLAB report through freedom of information laws, said: “Lockhart’s history of eye-watering legal aid claims was rightly subjected to public scrutiny yet he seems to see himself as the victim.”

SLAB said: “We were right to make public our complaint report to the Law Society of Scotland which set out our concerns about Mr Lockhart’s legal aid work.

“We successfully defended that decision in the court action raised against us by Mr Lockhart in which he sought payment of damages of £100,000 from SLAB. Mr Lockhart agreed to withdraw his action and pay us expenses of £1750.”

Lockhart said the decision to sue was taken after advice given by counsel who took the case on a no-win, no-fee basis.

He added: “The sum sued for was later altered to £30,000. There was thereafter a change in legal team who were not so optimistic.”

Lockhart claimed none of the SLAB allegations were proved to be correct and that they previously said no public funds had been compromised.

The original Sunday Mail report on Niels Lockhart in 2011 – reporting on the damning investigation of Lockhart’s legal aid claims

Solicitor made “unnecessary and excessive” claims for legal aid and raked in over £600,000 of public money

EXCLUSIVE: Mar 27 2011 Russell Findlay, Sunday Mail

This lawyer pocketed £600,000 Legal Aid in two years. His claims were ‘excessive, unnecessary, inappropriate, deliberate and persistent’ but it’s all OK because watchdogs say it was never.. CRIMINAL

LEGAL AID watchdogs have accused a solicitor who took £600,000 of taxpayers’ money in two years of deliberately ramping up his claims.

Niels Lockhart, 60, who runs a one-man firm in Kilmarnock, raked in £280,200 in 2004 then £321,400 the following year.

After he ignored a warning to curb his claims, the Scottish Legal Aid Board investigated before a probe team concluded that his applications were a systematic attempt to create extra fees.

But despite deciding that he routinely made “unnecessary and excessive” claims, SLAB did not call in police. They referred Lockhart to the Law Society who also decided no fraud had taken place.

The secret SLAB dossier, obtained through freedom of information laws, said: “Lockhart routinely makes consecutive grants of advice and assistance to the same clients for what appear to be similar matters submitted under a different guise.

In the board’s view, the ranges of actions taken by Lockhart towards achieving those payments are not those appropriate to a competent and reputable solicitor.

“He arranges for, or permits, his clients to attend his office on numerous occasions for excessive, unnecessary and often irrelevant meetings.

“In the main, these do not appear to have advantages for their further welfare or advance their case but merely act as a mechanism for the firm to exploit the Legal Aid fund by charging for these unnecessary and unproductive meetings.”

The audit discovered Lockhart’s firm was granted 392 “advice and assistance” applications for clients considering civil legal actions over 10 months in 2004 – more than double the number granted to the firm making the second highest number of similar applications.

The report stated: “The analysis revealed persistent patterns of excessive client attendances, the vast majority of which are irrelevant, unnecessary and conducted without due regard to economy.

“This appears to the board to be a deliberate scheme by Lockhart to make consecutive grants of advice and assistance on behalf of the same client for the same matter for personal gain.”

Slab officials warned Lockhart about his claims in April 2005 but he “continued to show contempt for the board’s serious concerns regarding his practices that were discussed at that meeting”.

That prompted SLAB to send their damning 13-page report to legal regulator the Law Society of Scotland in June 2006. Yet the Law Society did not report SLAB’s concerns to police or refer him to the Scottish Solicitors’ Discipline Tribunal. It took them another four years to even agree Lockhart should be banned from legal aid.

Last October, Lockhart’s lawyer James McCann struck a deal with SLAB which allowed Lockhart to agree to quit legal aid voluntarily. He continues to do other legal work.

A slab spokesman said: “The matter was not one of fraud and, therefore, not a criminal matter. A Law Society spokeswoman said: “Our powers in this situation relate to considering the solicitor’s conduct. It is not for the society to determine whether there has been fraud.”

Married dad-of-two Lockhart, from Ayr, said: “There was no suggestion of any dishonesty. I voluntarily removed myself. I was going to withdraw anyway. Where did you get this report?”

Diary of Injustice continued to report on allegations surrounding Mr Lockhart and the Law Society of Scotland’s efforts to avoid a prosecution. All previous reports can be viewed HERE.

If you suspect a solicitor is committing legal aid fraud, or if you feel your own solicitor is making fraudulent legal aid claims, email Diary of Injustice at scottishlawreporters@gmail.com

 

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GOOD FOR LAWYERS: Challenging year for ‘toothless, waste of time’ Scottish Legal Complaints Commission as complaints against lawyers rise again amid claims regulator has little impact on rogues of the legal world

Lawyers regulator proves no deterrent to poor legal services. SCOTLAND’S ‘independent’ regulator of legal services has admitted complaints against rogue solicitors & law firms have again risen in the past “challenging year” according to the latest Annual Report 2016-17 of the Scottish Legal Complaints Commission (SLCC).

The SLCC’s past year was marked by the Anderson Strathern appeal, in which Court of Session judge Lord Malcolm – real name Colin Campbell QC – ruled unlawful the SLCC’s previous practice of classifying certain single issue complaints as hybrid (raising issues of both service and conduct).

However, an investigation of the ruling by Lord Malcolm – who is also a Privy Councillor – revealed a top QC who was identified in complaints relating to the acceptance of £5,000 a time cash payments  and accusations of misrepresenting clients in a case directly involving Lord Malcolm – escaped investigation as a result of the same Court of Session ruling on 31 August 2016.

Earlier this year, the SLCC was branded a “toothless waste of time” by Alex Neil MSP (SNP Airdrie and Shotts) – who called for major reform of the Scottish Legal Complaints Commission after a Sunday Mail investigation revealed the SLCC refused to investigate serious complaints & cash payments involving ‘top’ planning law QC John Campbell (67) of Hastie Stable & Trinity Chambers.

Speaking to the Sunday Mail, Alex Neil said: “These technicalities show the SLCC as it stands is a waste of time. It’s not up to the job and we need major change.”

Mr Neil continued: “Parliament’s justice committee should have an urgent and comprehensive look at this and rewrite the legislation so people have a reasonable time to register legitimate complaints.”

“People need assurance that the legal profession isn’t just looking after itself all the time. People have no confidence in the system.”

A full report on the John Campbell case impacted on by Lord Malcolm’s ruling can be found here: CASH ADVANCE: QC says ‘Can I have £5k cash on the way to the Law Society?’ – MSP calls for reform of ‘toothless’ Scottish Legal Complaints Commission as regulator turns blind eye on Advocates cash payments scandal.

Further litigation occurred with the Law Society of Scotland over the SLCC’s power to then reclassify cases, in which the court eventually found for the Legal Complaints Commission but resulted in a large number of complaints being suspended, with no progress made until the ruling in June.

Over the year, complaints received rose from 1,132 to 1,155, up 2% on top of the previous year’s 12% rise.

However, an analysis of the complaints statistics, and contact with persons raising complaints with the pro-lawyer Scottish Legal Complaints Commission reveal the SLCC is more often than not – too eager to knock back complaints against solicitors – in a similar manner once practiced by the Law Society of Scotland.

In the past year, a total of 414 cases were accepted for conduct or service investigation, or a combination of the two (previous year 408), and 171 (compared with 226) were deemed ineligible as time barred or being “frivolous, vexatious or totally without merit”.

A further 251 cases (previous year 188) were resolved, withdrawn or discontinued without a formal investigation.

Solicitors accounted for 410 of the complaints accepted while 4 of the cases related to members of the Faculty of Advocates.

However, this year, the success rate of mediation was much lower – indicating perhaps complainants have become wise to a process dubbed as “rigged” by some, after it was discovered some ‘independent’ mediators have connections to some of the law firms facing complaints investigations.

In the past year, mediated resolutions were achieved in only 27 complaints (44 the previous year), a lower success rate than previously at 58%.

Sixty three cases were resolved during or at the conclusion of the investigation stage (down from 128), and the number receiving a final determination by a committee of commissioners fell from 102 to 95, of which 44 (down from 58) were upheld in whole or part.

The number of investigations in hand at the year end rose from 664 to 807, having jumped from 473 at the start of the previous year.

Residential conveyancing was again the most frequent area of complaint, at 22% of those received, closely followed by litigation (21%), then executries, wills and trusts (14%), family law (10%) and crime (7%). Commercial property and leasing accounted for 4%, as did “personal conduct”. Other categories of work, each comprising fewer than 3% of complaints, accounted for the remaining 18%.

Regarding the nature of the complaint, however, failure to communicate effectively was a clear leader at 26% (but down from 43%), followed by failure to advise adequately (20%, up from 14%), failure to provide information (14%, down from 15%), failure to prepare adequately (11%, up from 6%), failure to follow instructions (10%, up from 6%), and delay (unchanged at 8%). Other categories made up 6% of cases.

The accounts for the year, also published today, disclose a net operating loss up from £114,000 to £194,000, though income rose from £2.714m to £2.763m. Net assets fell from £675,000 to £421,000.

This year the current Chair, Bill Brackenridge, comments on coming to the end of his statutory term after five years as well as this year’s performance: “the SLCC has sought to drive efficiency within the current statutory process whilst making bold calls for reform.  This year we were pleased to see the Scottish Government announce an Independent Review of the Regulation of Legal Services, and we will continue to contribute to work to improve the regulatory and complaints system for consumers and lawyers”

“This year complaints against lawyers continued to rise, a further 2% on top of 12% last year.  We recognise that complaints form a tiny proportion of overall transactions in which lawyers support clients, but increasing case load continues to be a key factor in performance and costs.  This year we have also seen a continuing trend towards more complaints entering the later stages of our process.  To tackle this we’ve worked to support consumers and the sector with guides to reduce the common causes of complaints.”

SLCC Chief Executive Neil Stevenson added “this has been a challenging year, with significant litigation that has driven delays and costs and which was outwith our control.  We are delighted the court upheld our position, and hope we can now move beyond some of these challenges to work with others in the sector to improve confidence in regulation.

On a personal level one of the organisational achievements we all contributed to, and which I am most proud of, is a significant improvement on our staff engagement survey results. I’m also delighted that we are in the rare position of gender pay parity.”

The SLCC’s Annual Report and Annual Accounts are laid before the Scottish Parliament by the Minister for Community Safety and Legal Affairs.

In the past NINE years since the Scottish Legal Complaints Commission was created in 2008, the Law Society backed ‘independent’ regulator of complaints against legal practitioners in Scotland – including solicitors and advocates – has more often than not seen year on year rises in complaints while becoming involved in protracted orchestrated arguments with lawyers over funding for the legal quango.

In reality, funding for the SLCC – running at around £3million a year – is secured from a client sourced complaints levy – where hikes in solicitors legal fees to clients & consumers are used to pay for the upkeep and operation of the Scottish Legal Complaints Commission.

Since 2008, the SLCC has received nearly £30 million of client sourced funds – yet it is now clear the pro-lawyer quango has had little impact on the generally poor standards of expensive legal services available in Scotland.

Currently the Scottish Legal Complaints Commission is involved in lobbying against a Scottish Parliament investigation into self regulation of the legal profession, a full report on this can be found here: LOOKING OUT FOR LAWYERS: Scottish Ministers unite with lawyer dominated review panel & pro-lawyer legal regulator – to urge Holyrood MSPs delay probe on proposals for independent regulation of legal services.

The SLCC, along with the Law Society of Scotland and other legal interests have made submissions to the Scottish Parliament’s Public Petitions Committee calling for MSPs to hold off on hearing petitions calling for independent regulation – until a Scottish Government review on regulation of legal services reports back at the end of 2018. The ‘independent’ review, is in actuality being run by lawyers.

ANOTHER DAY IN COURT – Unidentified Law firm accused in client complaints fails in bid to overturn investigation

The Court of Session recently ruled in favour of the SLCC in refusing an application by a firm of solicitors for leave to appeal one of the Commission’s decisions. The application came from a firm seeking leave to appeal a decision that a number of issues of complaint were accepted as eligible services complaints and were not frivolous, vexatious or totally without merit. It was unusual in that only some issues of complaint accepted were being appealed.

The full findings – by Lord Glennie are available here: NOTE OF REASONS delivered by LORD GLENNIE in the application for leave to appeal by X LLP AND OTHERS (Appellant) against SCOTTISH LEGAL COMPLAINTS COMMISSION (Respondent).

However, it should be noted the Court ruling does not identify the law firm involved.

The SLCC’s eligibility determination that some issues of complaint should be accepted for investigation represents what is essentially a sifting function to establish whether issues of complaint require investigation. The Court endorsed the already established view that at this stage there is a low bar for accepting issues of complaint, Lord Glennie’s Notes of Reasons stating “the Commission has to decide in respect of each complaint whether it is frivolous, vexatious or totally without merit; and if it decides the complaint is any or all of these things, it must reject the complaint and notify the relevant parties.  That is a high test to be applied or, to put it another way, is a low threshold to be crossed.”

Mark Paxton, one of the SLCC’s Case Investigation Managers, explained “there can be misconceptions about the eligibility test, one of the most complex stages within the process prescribed in statute.  We have seen comments in the past that ‘too many complaints’ are let in, but the courts are once again making clear there is a high test to be met if complaints are dismissed at this stage.  We know others can think the eligibility decision is an early indication of eventual substantive outcome, which is not the case – it is simply a decision that matters need formally investigated to have sufficient information to make a decision. We are also aware that, for practitioners, the fact that this is a formal “decision”, appealable to the Court of Session, suggests that it is somehow already a stain on the practitioner’s record – which again is just not the case.”

Lord Glennie went on to reiterate that “the nature and extent of the investigation to be carried out by the Commission, and how they go about it, is pre-eminently a matter for the Commission itself.”  Having considered that there was no basis for establishing that the SLCC had erred in law or acted irrationally the Court refused leave to appeal the decision.

What was also highlighted in this case was the time and resource expended by the SLCC in carrying out this sifting function. The Court also made reference to the detail in which the SLCC had dealt with this determination, stating “The Commission’s decision in the present case is very fully reasoned… The decision deals with each complaint individually and over a number of paragraphs”.

The resources expended by the SLCC in relation to appeals bears a significant financial cost to the organisation. In this particular case, costs will be recovered following the decision of the Court to award expenses. However such an award is unlikely to recompense the full cost of all work done in relation to the appeal, and the process of contesting appeals continues to be a significant factor which the SLCC has to contend with in managing its budget.

Neil Stevenson, CEO added: “The expense of appeals has been a key driver of increasing cost in the last two years. Looking at other complaints bodies and ombuds it is very unusual for a right of appeal, especially to such a senior court, to be provided for in a complaints process on a decision simply that something needs investigated.  Our current proposals for statutory reform recommend that a more proportionate approach should be considered.”

The SLCC itself was created at a cost of over £2 million pounds of public cash in 2008 – by a Scottish Government team led by Angela McArthur – who was since appointed as Chief Executive of the Parole Board of Scotland from 2009 to present day.

Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission – A history of pro-lawyer regulation.

 

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REGISTER THE JUDGE: Transcript reveals weak & evasive evidence of Scotland’s top judge to Holyrood judicial probe on widely supported proposals calling for judges to declare & register their interests

Lord Carloway failed to make any convicting argument against judicial register. PUBLICATION of a transcript of evidence given by Scotland’s top judge before the Scottish Parliament – has reveal how poorly Lord Carloway faired in attempts to close a five year Holyrood probe on Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The now published written report of the meeting at Holyrood – depicts a blundering, weak & evasive performance from Lord Carloway – who gave evidence to members of Holyrood’s Public Petitions Committee on 29 June 2017 – in connection with calls to require judges to declare their interests in a publicly available register similar to MSPs and other branches of Government.

The written transcript of the surprisingly short 36 minute hearing – along with video footage – illustrates how Lord Carloway – lashed out transparency, court users, litigants the press, public, the internet and even social media – as reasons the judiciary should remain exempt from declaring their interests.

Lord Carloway (real name Colin Sutherland)- who earns over £220,000 a year – also declared to MSPs that creating a register of interests for judges would deter recruitment of ‘talented’ lawyers – reported in more detail by The National newspaper and across the media..

During the evidence session, the transcript reveals the full extent of how Carloway dodged question after question – with claims of ignorance on key points of judicial administration in Scotland – and even on the workings of foreign jurisdictions which Carloway himself has links to.

In response to questions from MSPs on comparisons between US judges declarations of interest and the refusal of Scotland’s judiciary to do likewise – Lord Carloway said he had no idea how US judges and their judicial system operated.

However – records of declared judicial overseas travel show Carloway has jetted to North America many times at taxpayers expense for ‘legal conferences’ alongside lawyers & judges from the US, Canada & other nations – reported in more detail here: EXCESS BAGGAGE: Lord Carloway’s £4K trip to Washington DC, Lady Dorrian’s £6K trip to Melbourne – Judicial overseas junkets rocket to £43k as new Lord President abandons Brian Gill’s edict on public cash for judicial jollies

As the top judge fumbled response after response, it became evident MSPs were not buying into Lord Carloway’s dismal, widely criticised stance against the proposals calling for judicial transparency and bringing judges into line with other branches of the Executive – who are all required to declare and register their interests.

Evidence from the top judge reached a low point in the hearing – when Lord Carloway claimed a register of judicial interests is not required – unless scandal or corruption ‘is discovered’ – by the judiciary – and and investigated from within their own ranks.

Lord Carloway’s stuttering performance was brought to a swift end by the Convener after detailed lines of questions from Alex Neil MSP saw Scotland’s top judge bounce from subject to subject, unable to offer a single clear reason as to why judges should be treated any differently from others in public life.

The Scottish Sun newspaper reported Alex Neil MSP (SNP Airdrie and Shotts) slammed Lord Carloway’s “extremely unconvincing” argument. Mr Neil added: “He put no rational case against.”

Lord Carloway’s appearance before MSPs was rated as “poor” by legal insiders, comparing the session to that of his predecessor Lord Brian Gill, who gave evidence to MSPs in November 2015 – after resigning earlier from the post of Lord President in May 2015.

Gill, who had waged a three year battle against the petition, refused to attend the Scottish Parliament on several occasions – a refusal resulting in heavy criticism in the press and from politicians who said Gill had insulted Holyrood.

A report on Lord Brian Gill’s evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests – Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

The proposal, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls 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.

The move to create a register of judicial interests has also secured the support of two Judicial Complaints Reviewers.

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013.

At the hearing, Ms Ali supported the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Scotland’s second Judicial Complaints Reviewer Gillian Thompson OBE also backed the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

A full debate on the proposal to require judges to declare their interests 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 overwhelmingly supported by MSPs from all political parties.

Lord Carloway evidence on Register of Judges interests Petitions Committee Scottish Parliament 29 June 2017

Meeting of the Scottish Parliament’s Public Petitions Committee 29 June 2017

Judiciary (Register of Interests) (PE1458)

The Convener (Johann Lamont): I welcome you all to this meeting of the Public Petitions Committee. I remind people to switch their mobiles and other devices to silent.

At agenda item 1, we are dealing with a continued petition, PE1458, which calls for a register of interests for members of Scotland’s judiciary. We will take evidence from the Lord President, Lord Carloway, who is accompanied by Roddy Flinn, the legal secretary to the Lord President. I thank you both for joining us this morning.

We have copies of a number of recent submissions, including the most recent correspondence from Lord Carloway. In order to make the most efficient use of our time, I suggest that we move straight to questions from members. I will open the questioning.

I want to explore some of the issues that you have identified as potential risks or inhibitions to the administration of justice should a register of financial interests be introduced. One of those is the risk of retaliation by a dissatisfied litigant by way of online fraud. You have commented that that has not, to the best of your knowledge, happened in respect of those judges who are currently required to disclose interest, but that the sample size of those judges is too small to derive comfort from.

In identifying that potential risk, have you given consideration to the experience of other holders of public office who have to declare their financial interests? For example, members of the Scottish Parliament, local authority councillors and members of public bodies all have a role in making decisions that may leave people dissatisfied. Are you aware of any individuals in those categories who have been victims of retaliation by way of online fraud?

Lord Carloway (Lord President of the Court of Session): I am not aware of details of members of other public institutions being subjected to online fraud, but judges are in a peculiar position in relation to this matter. They make decisions that inevitably cause disappointment to one party to a litigation, and those people are, or can be, resentful. I appreciate that that can happen in wider public life, but it is a particular problem for the judiciary.

The losing party can, in some extreme cases, blame the judge for the failure of their case and seek to find a reason beyond the actual decision as to why the judge found against them. It is not unknown for persons to form a malicious or hostile intent towards a judge, or even judges in general, if they are disappointed with the outcome of their case. They can become paranoid or suspicious about the reasons for what is a simple finding of fact in law by the judge, and I would be concerned if they were to source, and potentially damage, the judge’s personal or pecuniary interests.

The Convener: Do you think that there is a general culture of people looking for explanations beyond the decision? Do people do that already, not necessarily in respect of financial matters but by interrogating any connections that judges might have that might explain a decision?

Lord Carloway: It is a relatively common phenomenon, especially with party litigants, who, if they lose their case or a particular aspect of it, may search for reasons as to why that has happened. They will search for reasons that are outwith the obvious—in other words, that they lost the case because they were wrong in law or in fact. They will seek reasons as to why the judge found against them, and they will search for things that are peripheral to the case. That is a problem that we have to deal with—“put up with” is perhaps the wrong expression.

The Convener: Do you think that that is compounded by the world of online communication? Is online fraud now a particular issue?

Lord Carloway: As followers of blogs and so on in relation to judges will know, there is quite a lot on the internet that is, shall I say, not terribly complimentary about particular judges. Again, that is something that we have to put up with on a daily basis. We are subject to basic abuse by litigants of one sort or another on the internet, and that should be guarded against.

In the First Minister’s letter to the convener of the predecessor committee, she specifically referred to the particular need to consider

“judges’ privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants.”

That is exactly the type of thing that I am talking about.

Angus MacDonald (Falkirk East) (SNP): Good morning, Lord Carloway and Mr Flinn. I very much appreciate your attendance at the meeting.

You have identified a possible risk to the inhibition of justice in judicial recruitment or in judges starting to decline positions on bodies such as the Judicial Appointments Board for Scotland and the Scottish Courts and Tribunals Service in the event that judges are required to disclose financial interests. Given the principles that guide conduct in public life, why should a requirement for transparency act as a disincentive for judicial office-holders but not for other people who hold public office, such as MSPs?

Lord Carloway: A judge or a sheriff is, indeed, like many people, a holder of a public office. The critical distinction between a judge and an MSP, for example, is, of course, that the judge has to be independent of any form of Government. That is what we are looking at. A judge is therefore in exactly the opposite position from those whose work has a political dimension.

I hasten to add that the system here has an international reputation for fairness and not being corrupt, and we are extremely keen to protect that reputation. Members might have seen in the papers that the Council of Europe has an anti-corruption organisation called GRECO, which has specifically examined the potential for corruption in the United Kingdom judiciary, including the Scottish judiciary, in recent years. Its findings, which I think I quoted in the papers, were fairly clear. It did not find “any element of corruption in relation to judges” in the United Kingdom, “nor was there any evidence of” judicial “decisions being influenced in an inappropriate manner.”

Because of that, it did not see any necessity to introduce a register of interests specific to the judiciary.

To answer Angus MacDonald’s question a little more directly, we in Scotland do not have a career judiciary in the sense that we have judges who begin their judicial life at the point of leaving university, as judges in many countries on the continent do. We recruit our judges and sheriffs from people who are generally, although not exclusively, in private practice. They are recruited in their 40s and 50s, and perhaps sometimes even a little later as far as the senior judiciary is concerned. We have a relatively small pool of lawyers of excellence who are capable of taking on the job of being a member of our senior judiciary.

Members may be aware that there are currently certain problems with the recruitment of the senior judiciary in particular because of certain steps that have been taken relative to pay and pensions generally. We have particular difficulties with recruitment at the moment and, if I were to say to senior members of the profession, which they are before they are recruited into the judiciary, “By the way, if you wish to become a judge, you will have to declare all your pecuniary interests and open them to public scrutiny,” I have no doubt whatsoever that that would act as a powerful disincentive for lawyers of experience and skill to become members of the judiciary. I assure the committee that we need them more than they need us.

Angus MacDonald: You mentioned the career judiciary. You will be aware that we took evidence from your predecessor, Lord Gill. It is probably fair to say that he did not have a high regard for the system in the United States, where there has been a register of judicial interests, as you will be aware. What is your view of the fact that the United States has successfully introduced a register of judicial interests? Do you agree that it has helped to increase confidence in the judiciary in that part of the world?

Lord Carloway: I am not in a position to make any comment whatsoever about the United States judiciary. I simply do not know enough about it to make a meaningful comment. You will be aware that there are problems in relation to the United States judiciary, but I am simply not qualified to comment on the depth of the situation.

I can comment on something that I am sure that the committee is aware of, which is that the Supreme Court of the United Kingdom considered this matter because, previously, as members of the House of Lords, its members were required to have a register of interests. It was decided that members of the Supreme Court should not have to have a register of interests, and I would have thought that, if that is the view of the United Kingdom Supreme Court, we should give some consideration to it, even if, of course, we are not bound by its decisions in that regard.

Brian Whittle (South Scotland) (Con): Good morning. In relation to any changes to the current system of recusal whereby it is for a judge to decide whether to recuse, you have commented on the inefficient disposal of business in the courts. I would like to explore the balance between the efficient disposal of business and having systems in place that ensure there is trust in judicial decisions. In that respect, is there any way of quantifying the risks to the efficient disposal of business and, if so, whether your office has carried out an assessment of that?

Lord Carloway: Are you talking about the process of declining jurisdiction, or recusal, as it is put?

Brian Whittle: Yes.

Lord Carloway: I preface my remarks by saying that, as far as I have a concern about this topic, it is not that judges are failing to recuse themselves in particular situations, because I am quite satisfied that they do so when they should. My concern—this is also to do with the disruption of business—is to do with judges or sheriffs who are recusing themselves unnecessarily in circumstances in which they should not do so. That is a much more common phenomenon.

One has to bear in mind that we have litigants who will effectively try to forum shop—that is to say that they will encounter a judge or sheriff who is not to their liking, and they will attempt to remove that judge from the proceedings on pretexts such as their having some remote connection with the case or the people involved in it. That type of thing can cause major problems in the management of business.

In normal cases in which someone is represented by a member of the legal profession, if there is a genuine concern that the judge or sheriff has an interest in the case, that will be raised informally with the clerk of court and, in practical terms, the sheriff court judge will simply decide not to be involved in that particular case. Again, that is not something that can be done in every court—particularly not in courts that only have one sheriff, and especially if it is not raised in advance.

What happens, in the sense of practicalities and reality, is that civil business—which, again, is primarily what we are talking about here—can be allocated relatively late in the day, and a sheriff or a judge might only on the day in question be faced with an application formally in court to decline jurisdiction in that case. If he does so, it is likely that that case will simply have to go off, with all the inconvenience that that involves.

There was a specific point about whether we think that judges should not deal with this question but should pass to another judge. Do you wish me to deal with that point?

Brian Whittle: Yes, please.

Lord Carloway: The answer to that particular problem is this: if a judge does not recuse himself in circumstances in which he should have done, any litigant who is dissatisfied with that and loses the case can appeal that and the matter will be reviewed by three judges. Therefore, there is a form of open, public scrutiny of the decision not to recuse a judge. If there were a system whereby that judge could not decide that matter himself or herself—after all, it is he or she who knows whether he or she has a direct connection with the litigation or the persons involved in it—and that person had passed on the matter to another judge or sheriff, the business in that case would be ceased for the period until that matter was decided. The business that is scheduled for the other sheriff or judge would also be ceased in order that the other judge could take the decision. That other judge is likely to find the decision difficult if he or she does not know the particular facts.

I hope that I am, in a realistic sense, explaining the disruption to business that such decisions can involve. The simplest way to deal with them is the way in which we are dealing with them at the moment. First of all there is the informal route, which means that the judge or the sheriff is not hearing the case in the first place; if that judge decides that he or she should hear the case in any event and is faced with a formal motion to recuse himself, that matter is dealt with transparently in open court and is subject to the appeal process.

Angus MacDonald: We have received a submission on this petition from Melanie Collins, in which she highlights a recusal that had, for whatever reason, not been added to the register of recusals. That was only noticed, or challenged, one year after the omission.

When Lord Gill gave evidence to the committee, said: “To the best of my knowledge, the clerks of court are scrupulously accurate in keeping the register and therefore, wherever there is a recusal, you may depend upon its being recorded in the register.”—[Official Report, Public Petitions Committee, 10 November 2015; c 3.]

Does it not concern you that, in the past, recusals have failed to be listed in the register of recusals? Are you not also concerned that the register is being altered—in some circumstances, years later—and only when members of the public, the media or litigants point out that there are gaps in it?

Lord Carloway: I note that there was an error in not recording one incidence. I am not particularly concerned about that. The position is that all recusals that appear in the register are as a result of events that occur in open court, in a public forum, and they are recorded in the interlocutor of the court concerned. I think that committee members have a copy of the interlocutor of the court order that deals with the recusal. That is a public document, which is open to public scrutiny. It is a result of the hearing in open court in which the parties would be well aware of the decision and they would have a record of it. Therefore, it does not particularly concern me that there was an unfortunate error in transposing that information into a register of recusals, which is for a different purpose.

Angus MacDonald: Is that the only error that you are aware of?

Lord Carloway: It is the only error that I am aware of. The judge or the sheriff will make a decision in open court. The direction to the clerks of court is that they should transmit that to the judicial office, so that it can be recorded in the register. If that was not done—it was not done in this case—that is regrettable, but it is not a matter of deep concern to me. One mistake in many instances does not cause me a concern about the general system.

Angus MacDonald: But you can understand how Melanie Collins would not feel that it was—

Lord Carloway: She was involved in the litigation. She must have known that the decision had been made, because she is the person who was presumably in court at the time. She, or her representatives, would have received a copy of the court order dealing with the recusal.

Angus MacDonald: Okay. Thank you.

The Convener: I welcome Alex Neil MSP to the meeting. He, too, has an interest in this item. I will take committee members first and if Alex Neil wants to ask a question after that he may do so.

Rona Mackay (Strathkelvin and Bearsden) (SNP): Good morning, Lord Carloway and Mr Flinn. You talked about problems that you perceive there would be with recruitment should a register be introduced. I may have missed a discussion of this in our background briefing, but what is the Law Society’s view on a register of interests?

Lord Carloway: I do not know the answer to that.

Rona Mackay: Fair enough.

Maurice Corry (West Scotland) (Con): Good morning, Lord Carloway and Mr Flinn. I welcome your indication that you would have no problem extending the register of recusals to cover instances where judges have considered recusal but have made the decision not to recuse. You indicated that what you considered may provide additional transparency—that follows on from Angus MacDonald’s comment. Have you considered options for the ways in which the register could be made transparent when any additions or amendments are made to it?

Lord Carloway: Sorry, what is that in relation to?

Maurice Corry: Options to make it more transparent.

Lord Carloway: Do you mean that we could, for example, put the parties’ names in?

Maurice Corry: Yes.

Lord Carloway: That has been considered, but it is not thought to be particularly necessary or helpful. I return to the fact that all decisions whether to recuse are done in the public forum—they are done in open court. If anyone has an interest in seeing a particular court interlocutor, they can do so. For example, if someone was looking at the register of interests and wanted more details of that, I am sure that we could provide them with those details. However, we are often anxious not to put parties’ names in registers of a public nature such as this, because it is usual for cases to involve considerable sensitivities, such as children and so forth. Therefore, we would be reluctant to do that, but it could be done.

Maurice Corry: It could be done, but it would have to be looked at very carefully.

Lord Carloway: Yes.

Angus MacDonald: Would you be content to see information about the date on which an entry is made or a way of noting amendments to entries in the register, such as to correct clerical errors, which we are aware happened on at least one occasion? Would that enhance transparency?

Lord Carloway: Yes. That is a fair point. We could have a protocol that, if an entry was made after a fortnight, there should be a footnote to say, “Entered on such and such a date.”

Angus MacDonald: That is good.

You will be aware that there was a similar petition in New Zealand two or three years ago, which was eventually withdrawn.

Lord Carloway: I thought that it was defeated.

Angus MacDonald: Yes. Are you aware of whether any register was introduced in New Zealand, along the lines of a register of recusals or a register of interests, after that?

Lord Carloway: I am not. I thought that the matter ended with the defeat in Parliament.

Alex Neil (Airdrie and Shotts) (SNP): I apologise for being slightly late. I had to go to the Public Audit and Post-legislative Scrutiny Committee. I apologise in advance if I cover ground that has already been covered.

Lord Carloway, as an issue of principle, do you think that it should be left only to a judge to decide whether they are going to recuse themselves, or should you or the keeper of the rolls be able to insist on recusal if you believe that there is a potential conflict of interest?

Lord Carloway: The short answer is that I do not believe that there is any problem with the current system, which is that the judge, who knows what his connection is to the case or the parties to it, should make the initial decision. That decision is made in open court, when the parties are present, and it is subject to review on appeal. In other words, if somebody is dissatisfied with that decision and if the litigant eventually loses the case, the decision will come before three judges who will review whether it was correct. If it was incorrect, the decision on the case would fall.

Alex Neil: The person bringing the case to court may not be aware of any conflict of interest that the judge may have and may never find out that there was one, but the judge may well have been influenced by a particular interest. Surely that is not right. If there is any potential conflict of interest, surely there should be a declaration or commitment by the judge, making an explicit statement that there is no conflict of interest. People may not have the resources to appeal, for example. Is the system not balanced against people who come to court for justice?

Lord Carloway: No, it is not. I go back to something that I mentioned earlier, which is very important. Scotland does not have a corrupt judiciary. The matter has been examined by independent persons, notably the GRECO anti-corruption body that operates under the auspices of the Council of Europe, which examined the UK judiciary, including the Scottish judiciary. It was clear that, fortunately, we, as distinct from many other countries, do not suffer from corruption in the judiciary. For that reason, it did not consider that a register of interests was necessary. If one introduces such a measure, one has to be satisfied that it is necessary and also that it is proportionate. If one analyses its proportionality, one has to look at what exactly we are guarding against. If the situation were to be that there was corruption in the Scottish judiciary—which we would discover at some point or another—of course we would have to consider measures to prevent that, one of which might be a register of certain interests. Until such time as it is demonstrated that there is corruption in the Scottish judiciary, I am entirely satisfied that there is no requirement for a register of interests and that it would be positively detrimental to the administration of justice, particularly in relation to the recruitment of judges and especially at the higher level of the judiciary.

Alex Neil: I want to draw a parallel with the register of interests that members of the Scottish Parliament have to sign and regularly update. That came about not because of any allegations or belief that the system was corrupt or that members of the Scottish Parliament are corrupt. In the 18 years that we have been here, I have not heard one allegation of corruption. The register is there not because of allegations of corruption but to ensure that there is no prejudice. If I participate in a debate and I have an interest that I have not declared, I will be open to an allegation not of corruption but of prejudice. Because there is a register of interests and because I have to declare interests in a debate or in a committee meeting such as this one, there is a transparency to ensure that I do not act in a prejudicial fashion.

To go back to the case that Mr MacDonald cited as I came in—the case of Advance Construction and Donal Nolan, in which Lord Malcolm’s son was involved as a lawyer for one of the parties—the issue there was not an allegation of corruption but one of possible prejudice or perception of prejudice. That is a very good example of why either a register of interests or a more robust system of recusal—or perhaps both—might serve the judiciary very well.

Lord Carloway: I am satisfied that Lord Malcolm’s actions were entirely honourable and that he acted in accordance with the code of judicial ethics. I am not sure what is—

Alex Neil: Have you investigated it?

Lord Carloway: I am aware of the background to it.

Alex Neil: No, but have you investigated it?

Lord Carloway: I have read the papers that it involves.

Alex Neil: With all due respect, Melanie Collins and Donal Nolan have written to you on numerous occasions, and at no time have you replied to them, let alone met them, so you have not heard the other side of the case.

Lord Carloway: I am sorry, but I am not aware of letters to me by those particular persons.

Alex Neil: Your office—

The Convener: Alex, let us be careful that we do not get into anything specific on that.

Alex Neil: Yes—absolutely. My point is about how Lord Carloway can reach that conclusion if he has not heard the other side.

Lord Carloway: I have read documents emanating from the persons that you have mentioned. As far as I am aware, they were not addressed to me, but I could be wrong about that. The position is that I am aware of the circumstances of the case. I am satisfied that Lord Malcolm’s conduct was entirely correct in the circumstances. That is part of the problem that you have perhaps highlighted. That case has nothing to do with a register of pecuniary interests. The suggestion is that we should start registering what our relatives are doing, where they are working and matters of that sort, which I suspect would go way beyond even what is expected of politicians.

Alex Neil: No—we have to register what close relatives do.

Lord Carloway: Can I deal with the difference between MSPs and the judiciary, which I think I dealt with earlier this morning? It is quite a different function. A politician is by nature someone who is not independent in the sense that the public expect the judiciary to be. That is not a criticism; it is a reality. As a generality, judges do not deal with the type of issues that politicians deal with. Politicians have executive power. They are dealing with major economic interests of one sort or another. As a generality, judges are not dealing with that type of thing. They are dealing with issues that are usually between private individuals but can be between private individuals and Government or others. Judges are not dealing with the type of issues that politicians are dealing with such as planning inquiries and so on at a local level or major economic development in society as a whole.

The need for independence in the judiciary is different from the kind of independence that a politician requires, because with a politician it is primarily, as Alex Neil has pointed out, about issues of a pecuniary nature. Those are not the issues that arise in most of the recusal cases with which we are concerned. What we are concerned with as judges is that we appear to be independent of all connection with the case. It is not a question of having a pecuniary interest.

If one looks at the register of recusals in the past year, I do not think that any of them were to do with pecuniary interest at all. They were to do with social connections with people—whether someone is a friend; whether a party to the litigation is a friend of a friend; and matters of that sort. Those are the types of situations that are raised by people in the practical reality of litigation and those are the issues that are being dealt with. Unless you are suggesting a register of one’s friends—and presumably, therefore, one’s enemies—the real issue with recusal in the judicial system would not be addressed.

The Convener: Last question, please, Mr Neil.

Alex Neil: If I can just finally draw the parallel between our register and what has been talked about in terms of either recusal or financial interest, MSPs—as individuals and collectively—do not have executive power per se unless they are ministers, but what is very important is the perception of fairness and the perception that justice is being carried out.

If, in any case—without referring to a specific case—a close relative of a judge is participating in the case, rightly or wrongly, the perception is that there may be a degree of prejudice. It might be very unfair, but the point is to try to ensure that the excellent reputation of the judiciary down the years in Scotland is retained. That reputation is not just for not being corrupt, which we all accept—we are not accusing anybody of corruption. The perception of fairness and the perception of not being prejudiced are also extremely important. I would argue that, certainly in at least one case recently, which we have referred to briefly, the perception is that there may have been unfairness and prejudice in the way in which the matter was conducted, particularly as the judge concerned was involved in the case not once but on a number of occasions.

Lord Carloway: I disagree entirely with your analysis of that particular case and I repeat what I said earlier. The case that you refer to did not involve the judge’s son having any active involvement with the case whatsoever. We have very clear rules in our statement of principles of judicial ethics on how to deal with such matters and it is made very clear in that statement that if a relative is the advocate in the case before one, the modern approach is that the judge should not hear the case, or one could put it another way round—the relative should not be presenting the case. Whichever way it happens to be put, the situation that we had 20 or 30 years ago, when it was commonplace for the relatives of judges of one sort or another to be advocating the case, no longer exists.

That practice no longer exists not because it was thought that there was any actual problem with the decision making but, as you say, because of a perception of unfairness. There is a clear judicial rule about that and I am not aware of any case in which it has been breached. I myself have been in a situation in which my son was involved in a firm that was litigating before me. In such a case, the judge would be expected to declare it and the parties would then decide whether to take the point. However, if they took the point and the relative just happened to be a member of the same firm operating in a different department, I would not encourage the judge to recuse himself.

The Convener: There are no final questions, so I thank you very much for your evidence. It has been helpful to clarify many of the issues that you presented to us in written evidence and to have an opportunity to explore some of the issues around prejudice, for instance.

We might ask the petitioners to respond in writing to the evidence to allow us the opportunity to reflect on it, if members are so minded. When we consider the petition at a future meeting, we can consider any further actions that members might deem appropriate having read that response. We might want to make recommendations or suggestions to the relevant decision makers, but it is not within the committee’s powers to implement the action that is called for in the petition. However, we will take a view on the petition and dispose of it to somebody else who will make that decision. Today’s evidence has clarified many of the issues in my mind. Are members agreed to take the action proposed?

Members indicated agreement.

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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