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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

Lord Carloway – judges will not declare interests. SCOTLAND’S top judge has come in for sharp criticism after telling MSPs he is against judicial transparency and the creation of a register of judges’ interests – unless scandal or corruption is discovered by the judiciary within their own ranks.

Yesterday, Lord Carloway (real name Colin Sutherland) appeared before members of Holyrood’s Public Petitions Committee, where in his evidence, the judge blasted transparency, court users, litigants the press, public, the internet and even social media – as reasons judges must be exempt from declaring their interests.

Carloway – who earns over £220,000 a year as Scotland’s ‘top judge’ – even declared to MSPs that creating a register of interests for judges would deter recruitment of ‘talented’ lawyers – reported in more detail by The National

The protests from Scotland’s current top judge are in response to MSPs consideration of judicial transparency proposals contained in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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.

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.

The short session with Lord Carloway held yesterday, lasted a mere thirty six minutes.

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 in today’s edition Alex Neil MSP (SNP Airdrie and Shotts) slammed Lord Carloway’s “extremely unconvincing” argument. He 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.

Scottish Parliament’s Public Petitions Committee’s deliberations on Petition PE1458: Register of Interests for members of Scotland’s judiciary.

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.

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.

In a statement issued to the media late yesterday, Moi Ali – Scotland’s first Judicial Complaints Reviewer who gave evidence to the Scottish Parliament in 2013, criticised the stance of the Lord President at today’s hearing.

Moi Ali said: “I hold judges in high esteem for the important work they do, but I regret to say that Lord Carloway did a great disservice to the judiciary in his evidence to the Petitions Committee. He appears to have a very low opinion of users of the Court Service, suggesting that people who do not get the result they want may act with resentful, malicious and hostile intent. This is insulting to the public at large.

“His suggestion that a register of interests would lead to retaliation by unsuccessful litigants in the form of online fraud is frankly ludicrous and deeply offensive. I personally handled complaints reviews by unsuccessful litigants when I was the independent Judicial Complaints Reviewer, without any kind of threat or malicious action – even where I did not find in favour of the complainant.”

“I published a register of interests when in that role, despite not being required to do so. Why? Because it’s a basic expectation that that’s what public servants do in the twenty-first century.”

“The fact is that the judiciary do not wish to be open and transparent in this respect, and choose to present themselves as a special case. It seems to me that if a register is required to be completed by MPs, MSPs and public Board members, then it must also be required of the judiciary.”

“My opinion is not founded on a belief that judges are corrupt; rather, it comes from the view that transparency builds trust and confidence. As a society, we must be able to have complete confidence in our judiciary – and that starts with their openness and transparency.”

In a statement to the media, law blogger & petitioner Peter Cherbi said: “Transparency apparently stops at the doors of our courts and that’s it, Judges are to remain judges in their own cause and we shouldn’t have a register of interests until there is a scandal. Not on in 2017.”

Lord Carloway doesn’t seem to consider the fact these litigants and their legal representatives he holds in such distain – prop up his £220K a year job and our courts in exorbitant fees and hundreds of millions of pounds in publicly funded legal aid.

“And just exactly why does transparency inhibit the recruitment of judges? All other branches of public life have registers of interest and do just fine on recruitment. Lord Carloway is really struggling with this one.”

“Moi Ali was right all along. These people are the most powerful, and require the most transparency. Everyone gets the idea of transparency except the judiciary. Time now for a full register of judicial interests and for Parliament to act where the Lord President has failed.”

“Carloway’s arguments against a register are waffle – look at how the Sunday Times was treated in England over the Cruddas case where judges failed to declare interests in their links to political parties.”

“We should remember this is not just about protecting court users, a register is about protecting the public and the media who in many cases as we know, advance the cause of transparency and public interest where Governments, the Executive, public bodies and the courts all fail.”

Full report & video footage of Lord Carloway’s evidence to the Public Petitions Committee:

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

As the hearing began, Johann Lamont opened questions to Lord Carloway on arguments he put forward relating to “online fraud” as an inhibition to a register of judicial interests.

Carloway failed to provide any example in response to the questions on his own argument, and then claimed he was unaware of details of any other registers of interest.

The Lord President then turned on court litigants, claiming a register of judicial interests and any attempts to bring transparency to the judicial bench would help “paranoid” litigants take revenge on a judge after losing their cases.

Carloway – who has been a judge for 18 years, then went on to castigate financial declarations of interest, claiming if such a register existed he would not be able to hire “lawyers of excellence” for positions up to £200,000 a year judicial jobs.

The Lord President even complained about the level of judicial salaries and pensions during his evidence to MSPs as yet another reason and “disincentive to lawyers of experience and skill to become members of the judiciary”.

He said: “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.

“We have particular difficulties with recruitment at the moment. If I were to say to senior members of the profession, ‘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 becoming members of the judiciary.

“I can assure the committee, we need them more than they need us.”

In response to questions from Angus MacDonald on declarations of judicial interests in the United States, Lord Carloway said he was not in a position to comment on the US judicial system as he did not know enough about it.

However, it recently emerged Carloway regularly visits judicial gatherings in North America at taxpayers expense and mingles with judicial groups at plush locations for ‘legal conferences’.

Angus MacDonald then challenged Lord Carloway on recusals, in relation to cases where judges have either concealed conflicts of interest or have refused to stand aside from a case.

Mr MacDonald quizzed the Lord President on omissions in the recusals register – to which Lord Carloway said he was not concerned about.

The Lord President then told MSPs there was only one omission he was aware of in the recusals register.

However in response to a recent DOI investigation into judicial recusals, a number of cases are now being studied by journalists which appear to have been omitted from the recusals register.

And in at least one case, it has been alleged court clerks actively discouraged a motion for recusal, and suspicions are, more cases may fall into this category.

In a question from Rhona Mackay MSP (SNP) who asked Lord Carloway what the Law Society of Scotland’s view was on a register of interests.

Lord Carloway bluntly replied “I don’t know the answer to that”.

Maurice Corry MSP then asked Lord Carloway if he would provide further details to the register of recusals and options to make the recusals register more transparent.

Lord Carloway said it was not particularly required to apply further details to the current register of recusals, which is currently published by the Judicial Office with sparse detail.

Angus MacDonald then asked the top judge if he could be content to see clerical errors corrected in the register with a footnote if applied at a later date. Lord Carloway said yes.

Alex Neil MSP, who attended the Petitions Committee as a guest, then asked Lord Carloway if it should be left up to a judge to decide on an issue of principal if it should be left up to a judge to recuse themselves or should it be for the Lord President or the keeper of the rolls to insist upon if there is a conflict of interest.

Lord Caloway said he was happy with the system as it stood.

However Mr Neil pressed Lord Carloway on the point, saying the system was balanced against people who come to court for justice, particularly if they are under resourced or never find out about conflicts of interest in court.

Responding, Lord Carloway reverted to an obscure report prepared by a group of European judges which said there was no need for a register of judicial interests in the UK.

However, the judges and legal team who prepared the GRECO report referred to by Lord Carloway – are also against the introduction of registers of interests for members of the judiciary in the EU.

Carloway then insisted the Scottish judiciary was “not corrupt”, and said he would not even consider a register of interests until there was evidence of corruption.

The Lord President said: “Until such time as it’s demonstrated that there is corruption within the Scottish judiciary, I’m 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 put further questions to Lord Carloway, comparing the existence of the register of interests for MSPs which exists at the Scottish Parliament to ensure transparency.

Mr Neil reminded the Lord President the existence of the register of interests for MSPs did not exist due to allegations of corruption, rather to ensure transparency.

Responding to a case quoted by Alex Neil in relation to a construction firm –  Advance Construction Ltd – in which a Court of Session judge & Privy Councillor heard a case eight times which involved his own son – Lord Carloway said he was happy Lord Malcolm acted properly without recusing himself in the case.

Carloway claimed that Lord Malcolm had acted in accordance with the code of judicial ethics.

Carloway was then challenged by Alex Neil on whether the top judge had actually investigated details of the case – to which Carloway initially claimed he was not aware of any documents.

However, pressed on the matter, the judge admitted he had read documents from the individuals named by Mr Neil.

Lord Carloway said “As far as I am aware the documents were not addressed to me, but I could be wrong about that”

An earlier investigation by the media revealed  Lord Malcolm (real name Colin Campbell QC) heard the case in question no less than eight times while his son – Ewen Campbell – worked for Levy & Mcrae  – the Glasgow law firm now subject to multi million pound writs in connection with the £400million collapse of a Gibraltar based hedge fund – Heather Capital.

Ewen Campbell had been appointed to run the case by a judicial colleague of Lord Malcolm & Lord Carloway – Sheriff Peter Watson who was at the time a senior partner of Levy & Mcrae.

Sheriff Watson was since suspended from the judiciary by Lord Brian Gill, who as Lord President in 2015, suspended Watson to protect public confidence in the judiciary – after both Watson and Levy & Mcrae were named in a multi million pound writ relating to the loss of millions of pounds in the collapse of the Heather Capital hedge fund.

Responding to further points raised by Alex Neil, Lord Carloway hit out against suggestions judges should register what their relatives are doing and where they are working.

Carloway said “this was going way beyond I suspect what is expected of politicians in a register of interests”.

However, Alex Neil informed Lord Carloway that MSPs are already required to register what their close relatives do.

In response, Lord Carloway compared politicians to members of the judiciary, and claimed judges require a different type of independence as enjoyed by politicians.

The top judge said interests in the judiciary usually relate to social connections with people rather than pecuniary interests, which do not appear in the register of recusals.

However, as there are no requirements to declare pecuniary interests in the current recusals register, it is of particular note not one financial related recusal has appeared in the register of recusals, which covers 700 members of the judiciary, some of whom are earning up to £220,000 a year, and for many years.

In further points put to Lord Carloway, Mr Neil said that the perception of fairness is not present in the way matters are conducted in court.

In response, Carloway again referred back to the case mentioned by Mr Neil, saying he was happy with the way in which Lord Malcolm, had handled the court correctly.

Carloway claimed there was no active involvement whatsoever by Lord Malcolm’s son – Ewen Campbell – who is now an advocate.

However, Ewen Campbell’s name is listed on court papers from the outset of hearings in the Court of Session in front of his father, Lord Malcolm.

And, it has since emerged a written and signed statement by Ewen Campbell as a witness in the case mentioned by Alex Neil has been provided to journalists, along with a statement signed by suspended sheriff Peter Watson – a judicial colleague of Lord Carloway.

These developments and statements, which are to be published in a further investigation into judicial recusals, now calls into question Lord Carloway’s claims in his evidence to MSPs.

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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NO CONFIDENCE: Chair of Scottish Police Authority refuses to stand down, as board member criticises Holyrood scrutiny of governance, secrecy culture & lack of accountability at discredited Police watchdog

Chair Andrew Flanagan clings to power at Police regulator. AMID further calls to quit, the Chair of the embattled Scottish Police Authority (SPA) grimly remains in office and at the centre of a crisis which has eroded public confidence in the Police watchdog to the point only a clean sweep of the board may begin to repair significant reputational damage to the regulator of Police Scotland.

Facing further criticism from the Scottish Parliament’s Justice sub-committee on Policing late last week, Andrew Flanagan again refused to stand down from his £70K position as Chair of the SPA.

According to his declarations on the SPA website, Andrew Flanagan also holds positions on the Civil Service Commission, NHS Business Services Authority, London-based NEL Commissioning Support Unit, and the Criminal Injuries Compensation Authority, positions he earns up to £75,000 a year in addition to his £70K salary as SPA Chair.

Flanagan’s decision to remain in office comes after members of Holyrood’s Justice Committee said in a report  they had “serious concerns”in the current SPA Board – which has responsibility for oversight and spending of the £1.1 billion Police Scotland budget.

The Justice Committee expressed “very serious concerns about the standards of governance” at the body and said it “does not have confidence that the current chair is the best person to lead the board”.

The report was issued after the Justice Committee held an evidence session with SPA Chair Andrew Flanagan & CEO John Foley after hearings at the Scottish Parliament’s Public Audit Committee heard details of Andrew Flanagan’s treatment of Moi Ali – a former SPA board member who spoke up over concerns about the lack of transparency & accountability at the Police Watchdog.

At an earlier meeting of the PAPLS Committee Moi Ali accused Flanagan of bullying, which led to Ms Ali’s resignation from the Police regulator after she publicly objected to plans to hold meetings in private and arrangements over the publication of board papers prior to meetings.

During the evidence session at the Justice Committee, SPA Chair Andrew Flanagan told MSPs he had issued a written apology to Ali on Tuesday of that week, however, evidence has since emerged the apology was emailed to Ms Ali  less than two hours before Flanagan was to appear before MSPs to answer concerns about harassment and transparency.

The Justice Committee have not yet commented on whether they plan to quiz Mr Flanagan further on his contradictory claims in relation to his communications with Moi Ali.

While Justice Secretary Michael Matheson has remained conspicuously silent in the crisis at the SPA, Matheson has quietly requested an inspection of transparency and accountability issues at the organisation be brought forward by Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS).

The results are expected in June, however Justice Committee member Mary Fee MSP (Scottish Labour) branded Flanagan’s testimony to the Justice Sub-Committee on Policing “frankly inadequate”, adding: “We do not have confidence in his leadership.”

The report released by the Justice Committee says Flanagan’s repeated use of the phrase “I have to accept” when discussing his treatment of Moi Ali – does not reassure the committee that he has a “real belief and understanding” that the actions he took and “repeatedly defended were wrong”.

Speaking to the BBC, Mary Fee MSP – Convener of the Justice sub-Committee on Policing – said: “Though he was apologetic, we are not confident he accepts he was wrong.

“This issue remains unresolved. We will continue working with the Scottish Police Authority, and other justice stakeholders, until we are confident the governance of the SPA is significantly improved.”

Also speaking to the media, former Police officer & Justice Committee member John Finnie – also the Justice spokesperson for the Greens, said: “Andrew Flanagan said nothing at his most recent appearance in front of the Justice Sub-Committee on Policing which led me to believe that he has learned the important lessons necessary for him to lead the SPA.

“Mr Flanagan’s half-hearted apology, emailing Moi Ali around an hour before his appearance at the sub-committee, epitomises his approach to this whole sorry saga – looking out for his own self-interest rather than that of the Scottish Police Authority.

“In order to effectively chair an important public body it is vital that you hold the confidence of Parliament. It is clear from the views expressed by both the Public Audit Committee and today by the Justice Sub-Committee on Policing that Mr Flanagan lacks that confidence.

“He certainly does not hold my confidence.

“This ongoing situation continues to overshadow the vital work of the SPA and must be resolved sooner rather than later. I would ask Mr Flanagan to seriously reflect on his position.”

Giving evidence to the sub-committee, Flanagan was asked if he accepted there had been “reputational damage to SPA that it may not recover from”.

He replied: “I think we can recover from it, I think there has been some damage there. I think my apology to Moi is a start of that process, it is not the end of the process.

Responding to the Justice Committee’s criticisms of the SPA and their report SPA Chair Andrew Flanagan said: “As I have already done with the views of other parliamentarians, I and the SPA Board will consider this report very carefully over the coming days and reflect on its contents.

“As I indicated in my evidence to the Committee, I have publicly acknowledged recent mistakes without caveat or qualification. I also believe that in my time in office I have brought much improvement and clarity to the strategy, governance, sustainability, and relationships within policing.”

“I remain focussed on building a broad consensus around my continuing leadership of the SPA, and my contribution to a stable and collaborative leadership within policing as a whole.”

“Today, and in recognition of recent areas of contention, the SPA has backed my recommended changes to governance that will increase both the transparency of our meetings and the accessibility of information.”

“This will begin to address the concerns of stakeholders, and the inspection report of HMICS will provide a further opportunity to build on that.”

“I also look forward to further developing and broadening the Board’s approach with the appointment today of Nicola Marchant as the first Deputy Chair.”

It has since been reported in the Herald newspaper SPA Chair Andrew Flanagan did not share a crucial report on forensics with all his board members.

The SPA has control of forensic services – including DNA, drug analysis and scene examination – and Mr Penman sent the chair a “professional advice note” (PAN) on the subject.

The document flagged up possible reforms on a part of the Police service that has had to make efficiency savings.

Speaking to the Herald, a spokesman for HMICS said of the advice note: “HMICS received a letter on 31 October 2016, from the [SPA] Chair acknowledging the final version and confirming that it had been shared with all board members.”

The Herald further reported: “However, asked yesterday to confirm that Mr Flanagan had shared the advice note with all board members, a spokesman for the SPA said:

“The SPA members received briefing from their officers last August in which one of the options set out in respect of forensic services clearly reflected the HMICS advice note. The paper provided to members made clear that background papers available to them included the independent analysis and advice by HMICS in relation to forensic services.”

A senior policing source said it was a “fair assumption” that the advice note was not given to all board members at the time.”

Report from the Justice Sub-Committee on Policing: Justice Sub Committee on Policing Report on Governance of the Scottish Police Authority

1. The Justice Sub-Committee on Policing held an evidence session on the governance of the Scottish Police Authority (SPA) on 18 May 2017.

2. It took evidence from Andrew Flanagan, Chair, and John Foley, Chief Executive of the Scottish Police Authority.

3. This was in response to the letter from the Public Audit and Post-legislative Scrutiny Committee to the Cabinet Secretary for Justice outlining its “very serious concerns about the standards of governance at the SPA”, following its recent evidence sessions^

4. The Cabinet Secretary for Justice has asked Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS) to bring forward aspects of his intended statutory inspection into the state, efficiency and effectiveness of the Scottish Police Authority scheduled for 2017/18. The Cabinet Secretary has asked HMICS focus on transparency and accountability issues.]

5. Accordingly, HMICS is currently undertaking a Thematic Inspection of the Scottish Police Authority – Phase 1 Review of Openness and Transparency and is to report to the Scottish Parliament on 22 June 2017. The terms of reference are as follows:

The overall aim of this review will be to assess the openness and transparency in the way that the Scottish Police Authority conducts its business. It will specifically examine:

(i) the Authority’s decision on holding meetings in private and the publication of meeting papers; and also assess

(ii) the Authority’s compliance with relevant legislation, guidance and standing orders and the awareness and understanding of the Chair, Board members and SPA officers of these.

Introduction

6. This report outlines the views of the Justice Sub-Committee on Policing on the evidence heard at its meetings of 20 April, when representatives of Unison, the Scottish Police Federation and the Association of Scottish Police Superintendents provided evidence, and of 18 May, with the Chair and Chief Executive of the SPA.

Committee consideration

7. The 18 May evidence session focussed on the following decisions:

• to hold committee meetings in private;

• to not circulate to the SPA board members the letter from HMICS raising concerns about holding committee meetings in private; and

• the Chair’s letter to Moi Ali of 19 December, in response to her dissenting to meetings being held in private.

8. The Sub-Committee considered the decisions taken by the Chair and Chief Executive, the actions they took (or did not take) as a result of those decisions, and the impact on the effective governance and reputation of the SPA.

9. The Sub-Committee also considered the impact of the proposed actions to be taken going forward on the SPA’s governance, transparency and reputation.

Conclusions

10. The Sub-Committee shares the very serious concerns about the standards of governance at the SPA raised by the Public Audit and Post-legislative Scrutiny Committee and thanks it for its scrutiny of the governance of the Scottish Police Authority.

11. The Sub-Committee agreed to write to the Cabinet Secretary for Justice, copied to Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS), outlining its views. The letter is attached at Annexe A of this report.

PAPLS Letter from the Cabinet Secretary for Justice to HMICS, 20 April 2017

PAPLS Letter to the Cabinet Secretary for Justice, 12 May 2017

Letter from the Justice Sub Committee on Policing to Justice Secretary Michael Matheson:

Dear Michael: The Justice Sub-Committee on Policing held an evidence session on 18 May 2017 on governance of the Sottish Police Authority. This was to provide an opportunity for the Chair and Chief Executive of the SPA to address serious governance concerns raised by the Public Audit and Post-Legislative Scrutiny Committee in its recent letter to you.

The Sub-Committee also took evidence from Unison, the Scottish Police Federation (SPF) and the Association of Scottish Police Superintendents (ASPS) on 20 April, when SPA governance issues were raised.

The Sub-Committee appreciates that HMICS is currently undertaking an urgent review of the openness and transparency of the SPA and that you are to appraise the performance of the Chair of the SPA. This letter is to inform both.

Openness, transparency and accountability

The Sub-Committee agrees with your assessment that the SPA “needs to ensure that the processes and mechanisms that it has in place are open and transparent’’^”

Many of the issues surrounding the openness, transparency and accountability of the SPA’s governance seem to have been created by the implementation of two of the recommendations in Andrew Flanagan’s Review of Governance, which was published in March 2016. These were that committees should be seen as working groups (recommendation 15) and therefore that their meetings should be held in private (recommendation 16).

In his letter to Andrew Flanagan of 9 December 2016, Derek Penman cautioned that the proposal for committees to meet in private might impact negatively on the openness, transparency and legitimacy of the SPA, as well as public confidence in its governance. Despite this, the decision was made for committees to meet in private.

In a previous evidence session, the Justice Sub-Committee on Policing heard that those representing police staff, officers and superintendents felt that this decision excluded them from participating in the decision-making process.

Craig Suttie of the ASPS told the Sub-Committee that superintendents “had concerns when the governance review came out”, whilst Calum Steele of the SPF said that holding private committee meetings “undermines the SPA’s legitimacy”.

In response to questions on engagement with the unions and staff associations Mr Flanagan acknowledged that he was aware that stakeholders were unhappy, but held the view that the level of engagement was sufficient, saying that “In the committee structure that has been set up, people can come and give evidence … the SPF and other staff associations and unions can come to those meetings”.[4]

The proposal that committees are to meet in public and to publish papers well in advance of meetings is a move in the right direction. This is good practice and it is difficult to comprehend why this approach was not recommended in the governance review.

There is a need for some items to be taken in private, and the Sub-Committee appreciates Mr Flanagan’s assurance that respectful open debate on whether items should be taken in private will be encouraged going forward.

Private committee meetings, issuing papers at the last minute, and reducing input from key stakeholders has damaged the relationship between the SPA and police staff, officers and superintendents. It has also raised questions within the police service and externally about the SPA’s accountability, transparency and legitimacy.

Although there is now a proposal for committees to meet in public, Mr Flanagan suggested that this was due to improvements in the information that is submitted by Police Scotland,rather than being in response to the impact private meetings have had on key relationships and the SPA’s reputation. It is essential to repair both.

As part of his review, HMICS is to “engage directly with the key stakeholders, including police staff associations and members of the media and others who have a specific interest in the policing of Scotland and who may wish access to SPA meetings and papers”.

The Sub-Committee would refer HMICS to its evidence session on 20 April with Unison, the SPF and ASPS and, in light of recent media reports, respectfully request that Mr Penman engage with COSLA during his review of openness and transparency.

Correspondence from HMICS

It is clear that Derek Penman’s letter of 9 December 2016 to the Chair, copied to the Chief Executive, was time critical. In it Mr Penman raises a number of concerns about the Corporate Governance Framework, which was to be agreed at the following week’s SPA board meeting. Whilst Mr Flanagan has now acknowledged that this correspondence should have been circulated as a matter of course, and has committed to doing so in future, the Sub-Committee explored the reasons for the 9 December letter not being circulated.

The Sub-Committee heard that there were practical issues which contributed to Mr Penman’s letter not being circulated immediately. The Chief Executive was out of the country, with the letter apparently not being brought to his attention during or after his leave period. The Chair received the letter “late on Friday” and was not undertaking SPA duties again prior to the board meeting the following week.

However, Mr Flanagan stated that, in his view, there had been no need to circulate Mr Penman’s letter, telling the Sub-Committee that “I felt that his letter captured views that had already been expressed rather than injecting new ones”.

Mr Penman explained to the Public Audit and Post-legislative Scrutiny Committee on 11 May that his letter: “contained a level of detail that I would not have had the opportunity to explain in conversations on the margins with members”

Despite this Mr Foley told the Sub-Committee on 18 May that “It is not the case that his [Derek Penman’s] views were not known”

The letter was discussed at the pre-meeting and was not circulated before, during or at any time after the SPA board meeting. Board members and key stakeholders only saw the content of the letter, or in some cases became aware it, once it appeared in media reports some months later.

At the Sub-Committee meeting of 20 April 2017 Drew Livingstone stated that Unison was particularly concerned about not being made aware of the HMICS letter until recently, saying that: “there has been a reluctance on the part of the organisation to listen to opinions that might come across as being slightly dissenting”

Not circulating the HMICS letter to Board Members, as Her Majesty’s Inspector would have expected, was, in the Sub-Committee’s view, a serious error of judgement.

HMICS has a statutory role to look into the ‘state, effectiveness and efficiency’ of the SPA and it should provide HMICS with “such assistance and co-operation as we may require to enable us to carry out our functions”.

The Sub-Committee asks that you consider whether the Chair demonstrates sufficient understanding of the relationship between the SPA and HMICS and whether, in this instance, the required level of co-operation was provided to HMICS.

The operation of the SPA board

The On Board guidance states that “The Chair has an important role to play in ensuring that all Board members are enabled and encouraged to contribute to Board discussions”. Building and maintaining effective working relationships with SPA board members is an essential role of the Chair.

The Sub-Committee considered whether the Chair’s response to Moi Ali’s dissension at the board meeting in December, his interpretation of the On Board guidance and his communication style, enables and encourages members to contribute fully at SPA board meetings.

Treatment of Moi Ali

The Sub-Committee agrees with Mr Flanagan’s view that the tone, content and timing of his letter to Moi Ali in December was a misjudgement on his part and that the manner in which she raised concerns about transparency and perception at the SPA board meeting in December were consistent with her role as a Board member.

This issue has been on-going for almost 6 months and has been deeply damaging to the reputation of the SPA. It is therefore regrettable that Mr Flanagan did not come to this view initially, or before now, and that he did not seek to resolve this matter in person with Moi Ali before she felt it necessary to resign.

Mr Flanagan wrote to Moi Ali on two separate occasions, almost two months apart, but it seems that he did not find an opportunity to speak directly to Moi Ali to seek to resolve the issue and to repair the relationship.

The Sub-Committee notes that Mr Flanagan wrote a personal letter of apology to Ms Ali but that it was only written two days before the Sub-Committee’s evidence session and emailed on the day of the session.

Dissent

Mr Flanagan told the Sub-Committee that “The fundamental issue at the board meeting was that her [Moi Ali’s] decision to dissent was a surprise to me—that was the main frustration”

It remains Mr Flanagan’s view that he should be made aware before a board meeting if a member is likely to dissent in public, so that he was “prepared for that when the board meeting took place”.

This expectation is out of step with what is required of board members in the On Board guidance. Whilst this approach might be desirable for a Chair it does not enable the SPA board members to form a view at board meetings and could inhibit them from dissenting from a decision if they had not previously informed the Chair that they intended to do so. It has led to criticism that decisions are made before SPA board meetings and then ‘played out’ in public. There is an important distinction between a united board and an effective board. It is not always one and the same.

Relationship with SPA board members

The Sub-Committee heard that other SPA board members had only recently commented on the Chair’s treatment of Moi Ali, describing it to him as “a bit hasty and a bit heavy handed”.

The three SPA board members who gave evidence to the Public Audit and Post­-legislative Scrutiny Committee on 11 May, have only recently committed to asking the Chair why the HMICS letter was not circulated. They confirmed in evidence that they had not done so before now, despite the letter being in the public domain for a number of weeks.

It appears that on both these issues, despite having concerns about the Chair’s actions, significantly, SPA board members were reticent about speaking directly to Mr Flanagan.

Mr Flanagan told the Sub-Committee that the SPA board is to appoint a Deputy Chair. He indicated that one of the advantages of this appointment was that this person could meet with members of the Board who might feel constrained in raising an issue of concern directly with the Chair.

The Sub-Committee would be deeply concerned if Board members felt constrained in speaking to the Chair and, if that were the case, would expect the Chair to rectify that position as a matter of urgency.

Going forward

The Justice Sub-Committee on Policing agrees with the Public Audit and Post-legislative Scrutiny Committee’s assessment that it is essential that the public and stakeholders be reassured that the SPA is performing to an appropriate standard.

Unfortunately Mr Flanagan’s repeated use of the phrase “I have to accept” did not reassure the Sub-Committee that he has a real belief and understanding that the actions that he took in relation to Moi Ali and in not circulating the HMICS letter, and repeatedly defended, were wrong.

There will be many difficult decisions for the SPA board to take going forward. It is essential that as many of these as possible are taken in public and informed by stakeholders. Openness, inclusiveness and transparency will strengthen the decision­ making process and the accountability of the SPA. Given the evidence that it has heard, the Sub-Committee does not have confidence that the current chair is the best person to lead the Board.

HMICS is currently undertaking a review of the openness and transparency of the SPA.

The Sub-Committee asks HMICS to consider the evidence it has taken and the contents of this report as part of that review. Mr Flanagan has committed to write to the Sub­ Committee with a response to HMICS’ review at the earliest opportunity.

TRANSPARENCY FIRST: Former Board member Moi Ali spoke out on transparency concerns at Police Watchdog:

A glimpse into the world of the Scottish Police Authority’s board meetings features an excerpt from the SPA’s meeting of 15 December 2016, in which Board Member Moi Ali raised serious concerns about recommendations in relation to the publication on the day of board meetings and the holding of committees in private.

More on the discussion around the Governance Framework and input from Moi Ali who raised her concerns at the meeting can be viewed here:

Scottish Police Authority 15 December 2016 meeting Governance framework discussion

Ms Ali said she understood there were good reasons for those recommendations she had serious concerns about the lack of transparency around the two proposals, and that there were real drawbacks in relation to holding committee meetings in private.

Moi Ali said her concerns were two fold – the perception issue in relation to private meetings where it may be perceived that decisions may be taken behind closed doors, and that defacto decision may well be taken behind closed doors and that the process of decision making will be hidden and there is a danger in due course this will morph into a different kind of body in which effectively real decisions are taken albeit not in name but then come back to the SPA Board for rubber stamping rather than transparent debate.

UNFIT AUTHORITY: – Crisis continues at Scottish Police Authority after Board members criticise MSPs scrutiny of Cop Quango:

SPA Chair Andrew Flanagan’s decision to stay in the lead role at the now discredited Scottish Police Authority comes after one of it’s Board members – Graham Houston – launched a blistering attack on open hearings at the Scottish Parliament’s PAPLS Committee’ – after it’s members quizzed the Chair & CEO of the SPA, along with Scottish Government Civil Servants at an earlier meeting of 20 April 2017.

Scottish Police Authority Board Member Graham Houston hits out at PAPLS scrutiny of Police Watchdog

Critisising MSPs scrutiny of the Scottish Police Authority, Board member Graham Houston said: “I also think as an example of good governance I think the treatment of my fellow board members by an audit and scrutiny committee was frankly appalling and I think if that is an example of what is expected of good scrutiny it leaves a lot to be desired. And I suggest that the members of that committee look to themselves about setting an example and also look to the guidance on board about how they conduct themselves in doing that.”

Mr Houston then attacked the media, accusing the press of abusing the ‘openness’ of the SPA and concludes by stating “I think that what will transpire is that probably we are one of the most open public authorities in Scotland.”

The SPA’s statement on the outcome of the meeting claimed it had strengthened the transparency and accessibility of its governance arrangements by making a number of revisions to Board and committee meetings and publication of papers.

The changes decided at the meeting, which will come in to effect from 1 June 2017 include:

SPA committee meetings held in public, with items taken in private only when necessary and with a clear articulation of the reason.

The publication of agendas for all public Board and committee meetings will be available on the SPA website 7 days in advance of meetings.

The publication of papers for all public Board and committee meetings will be published on the SPA website (under embargo) 3-working days in advance.

The publication of agendas for closed Board and committee meetings will be published on the SPA website (redacted if necessary) and a summary of the business conducted will be reported to the next public Board meeting.

The public will also have the opportunity to pose questions about policing matters to the SPA Board in advance of meetings.

In addition, the SPA Board has established a new Deputy Chair role. Nicola Marchant has been unanimously appointed to that position with immediate effect.

Full details of the changes and next steps agreed by the Board are outlined in the following paper: http://www.spa.police.uk/assets/126884/400419/governance

Houston’s criticism of the refers to the following hearing, in which evidence revealed to MSPs portrayed the Scottish Police Authority as a haven of secrecy, run in the style of  a “kremlin” operation – according to former Cabinet Secretary & PAPLS member Alex Neil MSP (SNP):

Scottish Police Authority – Public Audit and Post-Legislative Scrutiny Committee – Scottish Parliament: 20th April 2017

A full report on the PAPLS meeting of 20 April can be found here: POLICING SECRETS: Former Scottish Police Authority board member Moi Ali invited to give evidence at Holyrood, after MSPs accuse SPA bosses of running Police watchdog like Kremlin ‘secret society’

A further appearance of current and former board members of the Scottish Police Authority before Holyrood’s PAPLS Committee on the 11th May – established evidence in relation to a sequence of alarming events at the SPA – giving MSPs significant cause for concern of how the SPA Chair was in effect, personally running the Police watchdog as a “secret society”.

Public Audit and Post-Legislative Scrutiny Committee – Scottish Parliament: 11th May 2017

A full report on the PAPLS hearing of 11 May can be found here: UNFIT AUTHORITY: Chair of Scottish Police Authority “is not fit to continue on any public board” – says former SPA board member in evidence to Holyrood’s Public Audit Committee scrutiny of Police watchdog

The hearing also established not one board member of the now discredited Police Watchdog backed former board member Moi Ali – who was forced to resign from the SPA after she bravely raised issues of transparency and accountability during a meeting of the Scottish Police Authority in December 2016.

Then, at a hearing of the Scottish Parliament’s Justice sub-committee on Policing, Andrew Flanagan was asked by MSPs several times to consider his position as SPA Chair – yet Flanagan refused each call to stand down and allow the Scottish Police Authority to move on from the current crisis.

Justice Sub-Committee on Policing – Scottish Parliament: 18th May 2017

A more detailed report on the 18th May 2017 hearing of the Justice Sub-Committee on Policing can be found here: AUTHORITY LOST: Chair of Scottish Police Authority refuses to resign after facing challenge from Justice Committee MSPs to consider his position on discredited Police watchdog

Previous articles on the Scottish Police Authority can be found here: Scottish Police Authority – Poor governance, private meetings & lack of accountability at Police regulator

 

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UNFIT AUTHORITY: Chair of Scottish Police Authority “is not fit to continue on any public board” – says former SPA board member in evidence to Holyrood’s Public Audit Committee scrutiny of Police watchdog

Former SPA member Moi Ali – SPA Chair Flanagan not fit on any public board THE CHAIR of the Scottish Police Authority (SPA) is under pressure to resign after heavy criticism from MSPs and former SPA Board member Moi Ali – who gave evidence to the Scottish Parliament’s Public Audit and Post Legislative Scrutiny Committee (PAPLS) earlier this week.

Andrew Flanagan – appointed by the Scottish Government to run the accident prone Scottish Police Authority was described at the hearing on Thursday as “…not fit to continue on any public board, because he clearly does not observe public sector values” .

The hard hitting criticism came from former SPA Board member Moi Ali, who was invited to appear before MSPs after Flanagan had and others from the Police Watchdog had been accused at a previous PAPLS hearing of being run – by Flanagan – as a Kremlin style “secret society”.

In an exchange between Monica Lennon MSP and the former SPA board member, Ms Lennon asked: “Given the letter and what you have just said about feeling bullied, do you think that Andrew Flanagan is fit to continue as chair of the Scottish Police Authority?”

In her response, Moi Ali gave a highly critical account of the SPA Chair’s position, stating : “I am afraid that I do not. He is actually not fit to continue on any public board, because he clearly does not observe public sector values. However, the Scottish Police Authority is in a different league, because an oversight body that oversees policing has to set even higher standards of corporate governance, and he has clearly not observed those standards.”

Sharp exchanges between members of the Public Audit Committee and remaining SPA board members continued, with Alex Neil MSP commenting a “collective amnesia” appeared to be affecting several of the remaining SPA board members – including David Hume.

Hume sat on a Governance Review of the SPA, along with a former President of the Law Society of Scotland, the Chair of the Fire Service and others. Mr Hume is the former Chief Executive of Scottish Borders Council.

In 2012 it was reported David Hume took a £318,434 secret “too ill to work again” secret legal deal from the corruption ridden south of Scotland local authority.

Hume then joined the SPA while also working for the Scottish Government in a position on Children’s Hearings Scotland. Hume’s salary for the CHS work was funnelled through his consultancy company – Enlighten: David Hume Consulting Ltd.

Hume’s term as SBC Chief Executive span dark years at the local authority, financial scandals with the loss of £4million from the education budget, consistent allegations of a culture of backhanders at the council, and a lack of duty of care.

Scottish Borders Council had been caught up in the Miss X Rape scandal, resulting in a Scottish Parliament inquiry which heard the Council had covered up a years long case where a severely disabled woman who lived close to the Council’s St Boswell’s HQ was repeatedly raped and abused. It transpired Scottish Borders Council held a written admission of rape from the man a full two years before the case came to light. A man was later jailed for 10 years for the crimes.

Scottish Borders Council decided not to discipline any social worker, despite the fact that Miss X, a woman with learning disabilities, had been subjected to an appalling catalogue of violent physical and sexual abuse.

Stopping short of calling for Andrew Flanagan’s resignation, the acting Convener of the Public Audit Committee released a statement yesterday, following the release of a letter sent by the Public Audit Committee to Justice Secretary Michael Matheson.

The letter from the committee claimed the Chair of the Scottish Police Authority – Andrew Flanagan – appears to have “behaved inappropriately”.

In the letter to the Cabinet Secretary for Justice Michael Matheson, the Public Audit and Post-Legislative Scrutiny Committee raised serious concerns about the Scottish Police Authority (SPA) Chair Andrew Flanagan.

Within the highly critical letter, the Committee said it appeared that Mr Flanagan treated former SPA board member Moi Ali in a manner that meant she felt “obliged to resign from the board”.

The letter also highlights the need to improve diversity on the SPA board, stating that the current board is “male-dominated” and in need of significant cultural change.

Acting Convener of the Public Audit and Post-Legislative Scrutiny Committee, Jackie Baillie MSP, said: “The Committee considers Mr Flanagan’s behaviour to be unacceptable on occasion. We would be extremely worried if potential board members were put off from applying to the SPA board because of this.”

“Clearly, the SPA has a lot of work to do in improving transparency at the very heart of the organisation – only then will it be able to gain public confidence.”

The SPA have refused to give further comment on that already given by Andrew Flanagan during the meeting of the Public Audit Committee on 20 April, more of which can be read here: POLICING SECRETS: Former Scottish Police Authority board member Moi Ali invited to give evidence at Holyrood, after MSPs accuse SPA bosses of running Police watchdog like Kremlin ‘secret society’

A glimpse into the world of the Scottish Police Authority’s board meetings features an excerpt from the SPA’s meeting of 15 December 2016, in which Board Member Moi Ali raised serious concerns about recommendations in relation to the publication on the day of board meetings and the holding of committees in private.

More on the discussion around the Governance Framework and input from Moi Ali who raised her concerns at the meeting can be viewed here:

Scottish Police Authority 15 December 2016 meeting Governance framework discussion

Ms Ali said she understood there were good reasons for those recommendations she had serious concerns about the lack of transparency around the two proposals, and that there were real drawbacks in relation to holding committee meetings in private.

Moi Ali said her concerns were two fold – the perception issue in relation to private meetings where it may be perceived that decisions may be taken behind closed doors, and that defacto decision may well be taken behind closed doors and that the process of decision making will be hidden and there is a danger in due course this will morph into a different kind of body in which effectively real decisions are taken albeit not in name but then come back to the SPA Board for rubber stamping rather than transparent debate.

Given there is a public interest in the way public bodies operate in Scotland, and that it is generally accepted among the media that the way in which the SPA is acting, does reflect a level of less than satisfactory operation across other public bodies in Scotland, excerpts of the meeting are reprinted to give readers a flavour of the exchanges as they were reported in the Official report issued by the Scottish Parliament.

Video footage of the PAPLS hearing follows:

Public Audit and Post-Legislative Scrutiny Committee – Scottish Parliament: 11th May 2017

Former SPA Board member Moi Ali’s opening statement to the Public Audit & Post Legislative Scrutiny Committee is reprinted below, and is contained in the report issued by the PAPLS Committee published here: Public Audit and Post-legislative Scrutiny Committee 11 May 2017

Moi Ali: Good morning and thank you for the invitation. There is much in Andrew Flanagan’s evidence to the committee to take issue with but, even if his account is to be believed, it raises fundamental corporate governance issues. He knew my views on the governance framework but told the committee that he did not expect me to voice them in public. Should a chair suppress respectful, open debate? He wrote of the value of being seen to be a united board. Where, then, can alternative views be discussed? Can that be done only in private? That seems to me not a good option.

Andrew Flanagan told the committee that dissent is okay, but his letter to me talked about how sharing public disagreement was a resigning matter. Why should members, who have accepted collective responsibility, resign? That is not what the Government’s “On Board” guidance says. Do SPA members now feel constrained about expressing their views in public? Surely that is not good for governance.

The chair claims that his concern was that I did not communicate my intentions in advance. Should board members enter meetings with their minds made up and their position pre-shared? It is clear that doing so would turn board meetings into theatre and board members into actors. In my view, my removal from committees was a straightforward punishment for speaking out. The “On Board” guidance says that members must participate in committees and, equally, that the chair should lead by example. What kind of an example was removing me from committees?

A key question is whether Andrew Flanagan observed the nine principles of public life in Scotland, which include openness, honesty, leadership, respect and integrity. Was withholding Derek Penman’s letter from the board an act of integrity? The “On Board” guidance states:

“It is important that nothing you do or say … as a Board member tarnishes in any way the reputation of the … Board.”

Have Andrew Flanagan’s recent actions damaged the SPA? News reports some five months after the event talked of haemorrhaging confidence in the beleaguered, embattled, control-freak chair and of a Kremlin-style, crisis-hit, secret society board. None of those are my words; in fact, some of them are the committee’s words.

The chair’s style shapes board culture. Did the board ask to see the HMICS letter? Did the board ask why it had not been shared? Was there any discussion of why the chair believed that I should resign? Has any board member questioned Andrew Flanagan about his evidence to this committee? The “On Board” guidance states that board members “should not hesitate to challenge the Chair if you believe that a decision is wrong”.

Did the board members therefore believe that the decisions were right?

Before board members approved the governance framework, they were aware of key stakeholders’ concerns. First, they discussed Audit Scotland’s report, which said that SPA board and committee papers were sometimes insufficiently transparent and issued only on the day of the meeting and that some papers that were taken in private could have been heard in public. Audit Scotland questioned whether the SPA demonstrated

“high standards of corporate governance at all times including openness and transparency in decision making.”

Secondly, board members knew that the internal auditors had questioned whether the proposals complied with best practice. Thirdly, they knew that at least one local authority had raised issues and concerns. Fourthly, colleagues knew that the Police and Fire Reform (Scotland) Act 2012, which created the SPA, says:

“The Authority must ensure that its proceedings and those of its committees and sub-committees are held in public”, and that “The Authority must try to carry out its functions in a way which is proportionate, accountable and transparent and which is consistent with any principle of good governance which appears to it to constitute best practice.”

I will summarise the position in a few points. The decision on private committees and last-minute publication of papers was contrary to statute and against the spirit of public service accountability; the board and the chief executive ignored Government guidance and stakeholders’ concerns; the chair was wrong in trying to suppress information and debate and in punishing me for taking a principled stance in public that was consistent with my well-known private view; and the board appears to have failed to challenge, given that three months after the initial decision, the board still felt no need to revise it.

Finally, the ensuing reputational damage has diminished public confidence in an important public body. Policing has to operate within the law and earn the confidence of the public, and so, too, does its oversight body.

Monica Lennon: I move on to a question for Moi Ali. Ms Ali, I have read the letter that Andrew Flanagan sent to you in December after you had raised two objections to part of the governance review. Do you think that that letter amounted to bullying?

Moi Ali: Yes, I believe that it did. A good leader, if he had any concerns, would surely speak to an individual—I think that we would all do that. It is hard to find another word to describe what a letter of that nature amounts to.

Monica Lennon: Do you feel quite sad about the experience? Do you feel that you have been driven out?

Moi Ali: Yes, I do. It has been a really horrendous experience. I am quite surprised that, five months after I received the letter, we are still talking about it. It has been a very difficult thing to live through, particularly as I have been outside all this, on my own, without access to materials. Because I was coming here today, I asked for information from the SPA—not private information, but information about meetings that I attended, information that I had previously held—and I was denied that. I have been very much pushed to the outside.

What has transpired as a result of the letter is exactly what I said would happen. I asked for a meeting with Andrew Flanagan almost immediately—on the first working day—after I received the letter, but for a variety of reasons that simply did not happen.

Monica Lennon: In a previous evidence session, I asked Andrew Flanagan whether he recognised that his conduct could be perceived as control freakery, and he did not accept that characterisation. In the time that I have been pursuing these questions, it has struck me that the SPA is very much a male-dominated organisation. Do you believe that he would have sent the same letter to a man?

Moi Ali: No, I do not think that he would. After I received it, I spoke to Iain Whyte, because he had expressed similar views to mine at the board meeting. The only difference was that he did not ask for his views to be minuted. In a way, the minuting is irrelevant because the meeting was live streamed and recorded for posterity, but he raised very similar issues. I think that his words were, “I share many of the concerns that Moi has raised.”

He pushed on the point that I pushed on about whether the proposals conformed with best practice. I asked Iain Whyte whether he had received a similar letter and he said that he had not.

Monica Lennon: Given the letter and what you have just said about feeling bullied, do you think that Andrew Flanagan is fit to continue as chair of the Scottish Police Authority?

Moi Ali: I am afraid that I do not. He is actually not fit to continue on any public board, because he clearly does not observe public sector values. However, the Scottish Police Authority is in a different league, because an oversight body that oversees policing has to set even higher standards of corporate governance, and he has clearly not observed those standards.

In sharp exchanges between PAPLS Committee member Alex Neil & those giving evidence, the report of the meeting publishes the following excerpt:

Alex Neil (Airdrie and Shotts) (SNP): Mr Barbour, in your submission you said that, in relation to the selection of a new chief constable, you had written:

“My real worry is that interested parties identify a preferred candidate and try to influence the selection criteria accordingly.”

Will you be more specific about that?

Brian Barbour: It was a general fear of mine, and I was sharing my thoughts. That memo was written to the chair, who I had not yet met, on the day that I left the SPA. It was my thoughts on moving forward, including things that were good about the board and things that needed to be changed. In the memo I expressed concern that we had had regular intervention. It was a legitimate worry of mine that people might have been wanting to fit the criteria to the person, rather than the board being absolutely clear about the criteria for the right chief constable, and then going through the interview process to see who matched the criteria.

Alex Neil: Were the people you were referring to members of the board?

Brian Barbour: No, the people I was referring to were external influences outwith the board.

Alex Neil: So who are you talking about?

Brian Barbour: I am talking about people in Government, by which I mean both the political side and the official side.

Alex Neil: Were you talking about the civil service?

Brian Barbour: I was talking about the civil service and, potentially, the cabinet secretary, if he had expressed an interest. However, I was not privy to that kind of discussion.

Alex Neil: Do you have any evidence of that?

Brian Barbour: No, which is why I was expressing it as a worry. I was not saying that I had evidence to say that it was happening; I was being open with the chair and saying that it was a concern of mine.

Alex Neil: To be fair, in your submission you should have made it clear that you did not have any evidence and that it was just a feeling.

Brian Barbour: My submission has a verbatim extract from my email to the chair. It said “My real worry”, not “I have seen evidence”. I was very specific.

Alex Neil: However, worries that are publicly expressed should be evidence backed.

Brian Barbour: Indeed.

Alex Neil: Moi Ali, this morning you said that you had sought information for this meeting from the SPA that is publicly available, and you were refused that. What information was it, who refused it and why?

Moi Ali: To clarify, the information was not publicly available, but it was readily available to the SPA. In other words, it would not have been onerous for the SPA to produce it.

Alex Neil: But it was not marked “Private and confidential”.

Moi Ali: I do not know. It was information relating to private meetings, but they were meetings that I attended, so I was not asking for information that I would not have. I will give you examples: I wanted the October, November and December audit committee minutes. I also wanted the minutes of the members meetings—you have received extracts of them, but I wanted the full minutes. I wanted earlier drafts, because one had changed significantly. I had two earlier drafts, and they are very different from the one that you have.

I wanted those documents to get the complete picture. The reason that I was given for being refused them was that it was important to have a level playing field and for everybody to have the same information. I said that I understood that and was perfectly happy for everybody to have the same information.

In fact, my concern was that there was not a level playing field. My colleagues here have that information. I used to have it, because I had an SPA BlackBerry and iPad, and the information was on them. Because I no longer have them, I no longer have the information, yet my colleagues here have it. The argument about a level playing field was being used to deny me that information.

I was then told that, if my colleagues asked for it, I would be given it, but they would not ask for it because they have it. It was a catch-22 situation. As late as 6 o’clock last night, I received a further email saying that some of the information would be made available to me under a subject access request, which I have had to make, but obviously the SPA has 40 days in which to comply with that, so it is of no use to me for today’s meeting.

Alex Neil:The level playing field reason suggests that the SPA saw this as a bit of a bun fight between you and the other board members.

Moi Ali: I think that it feels that I am on the outside and therefore no longer have the same rights as my former colleagues have to information that I previously held. Regardless of whether you want to call that a bun fight or whatever, I am at a disadvantage. I have this one sheet of paper, and my colleagues have files of information.

Alex Neil: Who refused your request?

Moi Ali: The chief executive refused it.

Alex Neil: The chief executive refused it.

Moi Ali: I went via the Scottish Government, because when I asked for information on a previous occasion it was shredded after I made the request. On this occasion I went via Paul Johnston.

Alex Neil: Just stop there. Tell me about that. You made an earlier request for information—

Moi Ali: It was not to do with this committee, but on the only other occasion when I asked the SPA for information, the chief executive wrote to me—I am happy to produce the email—saying that the information had been securely disposed of.

Alex Neil: After you had made the request.

Moi Ali: After I had made the request.

Alex Neil: What was that information?

Moi Ali: I stress that this relates to the previous chair but the same chief executive. I had asked for information when the chair had said that I was a one-trick diversity pony.

Alex Neil:Was it the previous chairman who said that?

Moi Ali: Yes, it was the previous chair. He told me that it was not him saying that, but HMICS. When I said that I did not believe that that was the case or that HMICS would use that terminology and that I wanted to see the information, I was told that I could not have it. Therefore, I made a formal request.

Alex Neil:Was it written information?

Moi Ali:Yes—he had been reading from a piece of paper.

Alex Neil:Was it a minute of a meeting or something like that?

Moi Ali:It was part of the appraisal process. He read that phrase from a document. On three occasions, I asked for that information but was told that I could not have it. When I made a formal request, the chief executive wrote to me to say that the information had been securely disposed of.

Alex Neil:Who was the author of that disgusting statement?

Moi Ali:The previous chair. That was part of a whole process that has been dealt with, so I am not—

Alex Neil:How was it dealt with?

Moi Ali:I was not the only person with concerns—other board members had concerns, and the Scottish Government addressed the issue.

Alex Neil:How did the Government address it?

The Acting Convener:The chair is no longer the chair.

Moi Ali:That is right—thank you.

Alex Neil:Yes, but it was not over that issue that they are no longer the chair, was it?

Moi Ali:That was part of—

Alex Neil:It is quite serious for a chief executive of a public body to preside over such a situation. First of all, the original phraseology is clearly totally unacceptable. If you are saying that the chief executive had the information destroyed after—

Moi Ali:Sorry to interrupt, but I want to clarify that he did not destroy the information; rather, he wrote to me informing me that it had been destroyed. When I asked about who did that and when and why that had happened, I did not receive that information. I do not think that the chief executive destroyed the information. My point is that I had previously tried to get information that was important to me. Following that incident, I now knew what could happen to such information. I am happy to produce the email that said that the information had been disposed of.

Alex Neil:To be clear, are you saying that the information was destroyed after you have made the request?

Moi Ali:Yes, that is correct.

Alex Neil:I think that we need to get much more information on that situation, convener, because it is totally unacceptable. Even though it is a historical event, the same chief executive is in post, and if he is prepared to do that there is something serious in the organisation—

Moi Ali:I confirm that, to the best of my knowledge, he did not shred the information.

Alex Neil:He did not do it; nevertheless, he is the accountable officer.

Moi Ali:Yes.

Alex Neil:Clearly, that should not have happened. The chief executive refused you the information for today’s meeting.

Moi Ali:Yes, that is correct. I wrote to him via the Scottish Government, because it was aware of the previous issue. I spoke to Paul Johnston following the meeting here. He was aware of what had happened previously. Given what had happened before, I told him that I did not have confidence that I would be given the information that I needed. He told me that that was fine and I could make the request through him. Therefore, I wrote to him setting out the information that I required. He then made the request. Days went by and I did not receive the information. I was asking for straightforward information. I chased it up and was told that the chief executive was about to leave the office and that he would not be in on the following Monday. I said that it was urgent, because I was going to be working in London and that I needed the information to prepare. A lot of emails went to and fro.

The Scottish Government was involved—officials spoke to me and to the chief executive. They were supportive and helpful, but they were unable to secure the information that I needed. All that I have is the information that is in the public domain on this committee’s website. I do not have any of the information that I had asked for.

Alex Neil:What are the three non-executive directors going to do about this? The situation is clearly unacceptable.

George Graham:First, I reassure members and Moi Ali that I do not feel like I am in a bun fight with her. She is a former colleague and I very much respect her position—

Alex Neil:Clearly, the chief executive thinks that.

George Graham:I do not feel like I am in a bun fight. However, I do not feel that I have a host of information. I have my opening statement and that is it. Yesterday, the clerk to this committee put out a note saying, “No more information, please,” as there was so much coming in, so I suspect—

Alex Neil:Mr Graham, will you answer the question? What are you going to do about the refusal to give Moi Ali the information and about the fact that it appears that, in the previous incident, although the chief executive did not get rid of the paperwork himself, somebody in the organisation clearly did so after a request was made? That is very serious for an organisation that you have been telling us all morning is running well and is full of improvement, with everything being above board, open and transparent. It is anything but.

George Graham:I think that you made a number of assertions there that I have not made. I do not think that everything is running well and that everything is above board. I know that we can improve and get better, so please—

Alex Neil:What are you going to do about this?

George Graham:If you would let me answer, please, that would be helpful.

In relation to the information that Moi Ali asked for yesterday, all that I can do is research why the situation happened in the way that it did and see whether we can put that right. I do not know why that information was refused as I do not know enough about it, but I undertake to look into that and see.

On the historical issue that Moi Ali has raised, again, I do not know anything about that, but if she wishes to raise it again, we will of course explore it and make sure that that kind of thing does not happen. The historical situation that has been described does not reflect the way that we in the SPA would like our officials to deal with such information requests.

Alex Neil:Clearly, however, that appears to be happening. Obviously, you have to find out the other side of the story before you decide what you want to do about it, but I need a guarantee from the three non-executives that such things will not be allowed to happen with no investigation and no appropriate action, because it clearly breaches every rule and principle in the book on openness and transparency.

George Graham:I can certainly reassure you that we will explore the situation.

Iain Whyte:We will happily go back to the chief executive and question why that information has not been—

Alex Neil:Will you come back to us and tell us what is happening?

Iain Whyte:Yes, and I am sure that we can ask the chief executive to provide you with full details.

Alex Neil:Absolutely. I think that we should bring him back to the committee, actually.

Iain Whyte:My understanding is that the previous incident that Moi Ali mentioned was subject to a complaints process and that there was an outcome. I do not know whether she is content with that, but she understands the outcome. The matter was dealt with through a historical process.

The Acting Convener:I will address a comment that Mr Graham made, because I think that it is important to do so. The committee requested full minutes but we were provided with extracts. If the chief executive and his staff can take the time to extract information, they can surely take the time to provide information to others. We put a time bar on information because it is disrespectful to committee members to provide at the 11th hour bundles more information that is not urgent.

George Graham:I understand that.

The Acting Convener:Okay. Thank you.

Alex Neil:Just to add to that, convener, I ask that we get a copy of all the information that Moi Ali asked for and was refused.

I have a further question for the non-executive directors. I think that both Mr Whyte and Mr Hume have confirmed that they dissented on certain issues at the board meeting, as did Moi Ali, but that did not appear in the minutes.

David Hume:Can I clarify that? My dissent was in relation to a previous discussion about governance that took place in June 2015, and I said that at the time. I have the minute from that meeting in front of me. There were two decisions. With regard to the first decision, Brian Barbour and I are recorded as dissenting—

Alex Neil:So it is in that minute.

David Hume:—and with regard to the second decision, I am shown as dissenting. I have that here.

Alex Neil:Right. That has not been—

Iain Whyte:I clarify that I indicated that I had raised a number of questions at different points but that I did not record dissent to the decisions that were made.

The Acting Convener:We have not received any of that information. I do not doubt the veracity of what you are telling us, but the SPA chief executive has chosen not to provide us with that information. That is the only conclusion that I can draw.

Mr Penman, you wanted to come in, and then I will go back to Alex Neil.

Derek Penman:I assure you that we will request and review all the minutes—unredacted, and not extracts from them. Clearly, whether they are released publicly will be a matter for you, but we will do that. We will also include the comments that have been made today in terms of historical issues and consistency.

The Acting Convener:That is very helpful.

Alex Neil:That would be very helpful indeed. Clearly, the request was not a formal freedom of information request, but it appeared to be a reasonable request that should have been fulfilled. The behaviour in that regard is part of the problem with the culture of the organisation: it appears to be one of secrecy and non-co-operation with people, which is not acceptable.

Iain Whyte:I do not know the details of why the chief executive has put forward certain parts of minutes and not others. All that I can tell you is that some of the minutes that Moi Ali requested were from private meetings and some were from the members meetings. Among the issues that were discussed, there might be sensitive matters relating to security issues that could not be released publicly and there might also be financial and commercial discussions in there that would obviously be exempt from FOI because it would be to the detriment of the public service were they released. It may be something to do with that, but I do not know. However, I ask that the committee handle any information sensitively for those reasons.

Alex Neil:You can make a robust request and get in first before any excuses are made. As a non-executive director, your role is to challenge and be robust.

Iain Whyte:Absolutely.

Alex Neil:But it seems that you may have made your mind up already.

Iain Whyte:No. I am conscious that some of the things in those meetings may be appropriately heard in private even under FOI legislation.

The Acting Convener:I hear what you are saying but, with all due respect, we are referring to extracts that deal only with governance and nothing else. We have requested minutes and, had there been a request to redact certain things that were sensitive, I am sure that the committee would have looked at that and considered it, as appropriate. However, there is nothing like that in those minutes. The fact that your dissent and Mr Hume’s dissent are not recorded is actually not helpful to the committee’s considerations and I hope that you will take that back to the SPA.

Iain Whyte:I will clarify this yet again. I have said it twice now. The dissent that Mr Hume was talking about was recorded in a public meeting back in June 2015. I did not record dissent at any point. I have said that twice and I would like to clarify that.

The Acting Convener:Okay.

Alex Neil:We will make sure that that is in our minutes.

The Acting Convener:Carry on, Mr Neil.

Alex Neil:I want to focus on the role of the non-executive directors, having been a non-executive director of a number of companies myself, which are obviously operating in the public sector. I will start with the letter from Derek Penman to the chair prior to the December board meeting. Despite the explicit request in the letter to the chair, which Mr Penman confirmed this morning was the case, that the letter be circulated to the board for the December meeting, not only was it not circulated, the chief executive was not even informed by the chair at the time of the existence of the letter, let alone of its contents. I ask you three: when did you find out about the letter and when did you get to read it? Have you read it?

David Hume:Yes. I have it in front of me.

Alex Neil:When did you get it?

David Hume:I cannot recall.

Alex Neil:Here is the collective amnesia again.

David Hume:No, it is not that.

Alex Neil:Amnesia must be contagious in the SPA.

David Hume:No, that is not the case.

Alex Neil:So, roughly when did you get the letter?

David Hume:In recent times.

Alex Neil:How recent? Was it last week or last month? Did you get it in December or January?

David Hume:I do not date stamp material that I get, but I think that I got the letter within the past month. However, as I said earlier, we had a full discussion of HMICS’s view.

Alex Neil:I have heard all that, and my question is not about that. Can Mr Graham and Mr Whyte tell me when they got a copy of the letter and whether they have read it?

George Graham:Yes, I have now read the letter, the full detail of which was apparent to me about two or three weeks ago.

Iain Whyte:It is exactly the same for me. I have a copy of it with me, but I had not seen it until the issue arose at this committee.

Alex Neil:My next question is the obvious one. You are non-executive directors. Part of your function is to make sure that the board is above board and transparent. That is all in your remit and in the nine principles that were referred to earlier. When did you ask the chair why you had not received a copy of the letter from the inspector, who had specifically requested that you all get a copy before the December meeting? When did you take the chair to task for not circulating that letter?

David Hume:Before we answer that, I want to bring us back to the HMICS letter. As I have just confirmed with the chief inspector, who is sitting next to me, the letter says:

“I accept that it will properly be a matter for the Board to approve the Corporate Governance Framework and my comments are intended solely to inform members ahead of their decision next week.”

Alex Neil:Absolutely.

David Hume:I think that, on the basis of conversations that I had had with Derek Penman, and conversations with both Moi Ali and George Graham, I went into that meeting fully aware of the views of HMICS.

Alex Neil:But that is not the point, Mr Hume. The point is that the chief inspector asked the chair to circulate the letter to every board member, which should have been done. If I had been a non-executive director and had found out much later that I had not received that letter but got it only by accident because the chair got a roasting at this committee, I would have been on to the chair to demand that future letters like that, in which there is clearly interest and there is a request for it to be circulated to the board, would be circulated.

David Hume:Indeed. Absolutely.

Alex Neil:If you are not prepared to do that, you are not fit to be a non-executive director. You are there to hold the chair, among others, to account.

David Hume:We are quite aware of that. The letter—

Alex Neil:You do not seem to be. You are making excuses for him.

David Hume:No.

Alex Neil:Why have you not complained to the chair that the letter was not circulated, as requested by the inspector? One of the things that were announced in the letter was the new review and inspection by the inspector.

David Hume:Indeed.

Alex Neil:You did not actually know that, formally.

David Hume:I did.

Alex Neil:No—you did not, formally.

David Hume:Well, he told me.

Alex Neil:No—he did not tell you formally; it has to go to the board. If that is the level of scrutiny that you are exercising as a non-executive director, I find it wholly inadequate. You are supposed to hold the chair to account. If the chair has not circulated a letter from the inspector, who has specifically asked that the board see it, irrespective of whether you already knew the information, perhaps not every other board member knew all of it. The point is that, if the inspector wanted it to be circulated, surely it should have been circulated. Surely, as a former inspector, Mr Graham, you would have expected that to happen.

George Graham:Yes. You have made a number of assertions. There is a fair bit of relationship informality that definitely happens but, with hindsight—and I am sure that the chair will have reflected on this since the committee meeting with him a fortnight or so ago that you described—I certainly would have appreciated seeing the detail of that letter.

Alex Neil:Have you now made it clear to the chair that you do not expect a repeat of that in future?

George Graham:I have not had that conversation.

Alex Neil:Is it not time that you did?

George Graham:It may well be.

Alex Neil:Are you going to?

George Graham:I think that the most important—

Alex Neil:Are you going to?

George Graham:You can keep asking me that question—

Alex Neil:Well, are you going to?

George Graham:—but I would like to give you a full answer, Mr Neil.

Alex Neil:Yes or no—are you going to tell the chair that you do not want it to happen again?

George Graham:I have great respect for how the chair is managing business. I certainly do not want a whole host of issues to come up. I would have a discussion with him in which I say that it would have been useful to see a letter that specifically says that it should be sent to the board. So my answer is yes.

Alex Neil:Mr Whyte?

Iain Whyte:Which bit would you like me to answer?

Alex Neil:Have you complained to the chair that the letter was not circulated as requested?

Iain Whyte:No—I have not complained to the chair.

Alex Neil:Why not?

Iain Whyte:Like others here, I was fully aware of the views of HMICS, so, in a sense, they had already been factored into the decision making that we had.

Alex Neil:Poor.

Derek Penman:If I may add to that, although I had conversations with all the members of the board and they would have been clear on my intention and my views, the letter, which I think extends to three pages, went into some nuance and detail around that.

Alex Neil:Exactly.

Derek Penman:There were things in there that I know that I would not have discussed with members. Without wanting to be objectionable about it, the letter contained a level of detail that I would not have had the opportunity to explain in conversations on the margins with members.

My other point is to clarify our position and to correct the evidence. When I sent the letter to the SPA, which was on 9 December, it was copied to the chief executive.

Alex Neil:He told this committee that he had not seen it.

Derek Penman:I am offering to correct that evidence, in terms of our recollection of the—

Alex Neil:Having heard what the chief inspector has just said, are you now prepared to go to the chair and say that this is totally unacceptable?

George Graham:I have always been prepared to have that discussion. The chair himself will reflect on exactly the information that he discussed with you a fortnight or so ago.

Alex Neil:You are not leaving us with a lot of confidence that you are doing the proper job of a non-executive director, I have to say.

George Graham: Can I just come back on that? It is wonderful that you can make such assertions, but there are an awful lot of really good things that we do as a body.

Alex Neil: I have no doubt.

George Graham: The focus on one singular point of failure, if you want to call it that—the failure to circulate a letter, which was a deliberate judgment on someone’s behalf—and then to describe the board as inadequate is a poor characterisation of what we are doing. I certainly feel quite passionate about policing. I am in this for only one purpose—to help the Police Service of Scotland deliver the very best it can for communities—so to come in here and hear you assert that, because of one particular issue, we are inadequate as a board is unfair.

Alex Neil: Just a minute. You are being paid as a non-executive director. You are getting paid by the public as a non-executive director, and—

George Graham: I am quite simply—

Alex Neil: Let me finish. You are not doing the job.

George Graham: I am simply disagreeing—

The Acting Convener: Mr Graham—

George Graham: I am quite simply disagreeing with your assertion, and I am entitled to do that.

The Acting Convener: We are not going to get very far collectively this morning if we shout at one another, and if you talk over me again, Mr Graham, your microphone will be cut off. Equally, I would say to members that there are passions round the table, but let us try to lower the temperature. Nevertheless, we will still be seeking answers and we will be robust in our scrutiny, and nothing will stop the committee doing that.

Alex Neil: I just want to make the point that it is not a one-off. Ever since the board was set up, there have been problems, time after time after time. What the chief inspector has just said must be taken very seriously by every member of the board. I absolutely appreciate Mr Graham’s former service and the fact that he is committed to the future of the police service, and he has a good track record of serving the nation and the police. However, in your new role as a non-executive director, Mr Graham, part of your function is to ensure that the board is operating efficiently and transparently, holding the chair, the chief constable and others to account, and the point that I am making is that, on the fundamental issue of governance and the governance review, that has not happened. In that respect—and my comments are solely in that respect—the non-executive members of the board have not fulfilled their function with the robustness that is needed. They must be able to say to the chair, “Don’t do that again.”

I am not asking for the chair’s resignation, or for anyone’s resignation, because we all have to learn lessons. As you said yourself, Mr Graham, you are new to the role of non-executive director. We are paying non-executive directors to hold people to account. On this occasion it is clear, especially in light of the chief inspector’s comments, that that did not happen. Your job now is to ensure that there is no repeat of that, and that in future people are held to account. That is the point that I am making. I am not trying in any way to deride your service or anyone else’s service. Like you, I want to see an efficient Scottish Police Authority holding people to account, and that includes internal account. You have heard this morning about people being denied information, and you have heard loads of other stories as well. As everybody agrees, there is clearly still a lot more to do to get the Scottish Police Authority into the position that it needs to be in to gain the confidence of the Parliament and of the Scottish people.

George Graham: Thank you, Mr Neil, for those comments. I respect your position on the issue and I accept it. As you point out, and as I accept myself, I am still very much learning in my endeavours. There are a number of tangible examples of areas where we have engaged in effective scrutiny, so I would not like the committee to have the impression, just because of that one single issue, that that is how we behaved at all times. Finally, I want to say that a number of staff in the SPA, who have been through a fairly turbulent three or four years, work incredibly hard to support us as non-executive directors. They do an awful lot of good work and sometimes the stories that are published affect how they feel about their work. That is not the fault of the committee, because I respect the fact that it is your job to scrutinise what we do. I just want to put on the record my appreciation for how they support us, and I emphasise that we are still learning.

Alex Neil: I think that we would endorse that appreciation.

I fully understand that there have been some details and issues between the chair of the SPA and Moi Ali that you, as a non-executive director, could not get involved in but, given the damage to the perception of the SPA that was done by the way in which Moi Ali’s departure from the board was forced—not just handled but forced—I would have thought, without necessarily taking sides, that there was a legitimate case for the non-executive directors, with their remit, to raise at the board meeting the question of how that had been handled. Irrespective of who was right and who was wrong, there is no doubt that, over a period of months, that has done significant damage to the perception and the reputation of the Scottish Police Authority. I am trying to be positive. You need to be more robust in such situations, raise such things with the chair, and get them sorted before they become a public relations disaster for the Scottish Police Authority, which what we are talking about has been.

The full transcript of the hearing can be viewed here: Public Audit and Post-legislative Scrutiny Committee 11 May 2017

The previous session of the PAPLS investigation of the Scottish Police Authority can be read here: POLICING SECRETS: Former Scottish Police Authority board member Moi Ali invited to give evidence at Holyrood, after MSPs accuse SPA bosses of running Police watchdog like Kremlin ‘secret society’

 

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CASHBACK QC: Legal regulator’s files reveal senior QC reduced claim without instructions, withheld key evidence & witnesses including Cabinet Secretary from Court of Session case

John Campbell QC – evidence to legal regulator contradicts judge. DOCUMENTS obtained by the media from a legal complaints investigation – reveal a senior QC was unable to produce substantive evidence against allegations he stripped out a £4m head of claim & legal and professional expenses without consulting his client.

The overall tone of responses from John Campbell QC to the Scottish Legal Complaints Commission (SLCC) give a series of contradictory accounts to legal regulators of services he provided in a case now linked to serious failings of the judiciary.

In one lengthy explanation Campbell claims he did not act without instruction, however, the senior QC refuses to produce any evidence of said instructions.

In another exchange, the long time QC dismisses the appearance and evidence from a star witness Cabinet Secretary – Alex Neil MSP (SNP Airdrie and Shotts).

Campbell personally took the top politician’s precognition and had him set to appear on the first day of the proof, then failed to call the Cabinet Secretary in a move now raising serious concerns over the performance of the once ‘top’ rated Planning Law QC.

And, in a bizarre twist to the case the senior QC – now the subject of media coverage – claimed he had no professional relationship with Mr Nolan’s partner – even though evidence has since been published in the press Campbell demanded and obtained cash sums of £5,000 from his client’s partner.

The cash payments sought by John Campbell QC are in breach of rules of the Faculty of Advocates – who stipulate fees can only be paid via solicitors to Faculty Services. A full report on Campbell’s cash demands can be read here: Investigation reveals Scotland’s ‘top’ Planning QC demanded cash payments & cheques from clients in Court of Session case

In an attempt to answer allegations he removed a £4m head of claim & legal expenses from the high value damages action in the Court of Session on the last day of proof – the senior Planning Law QC gave the SLCC a laboured account of events without being able to back up his position.

Complaints against Campbell’s reduction of the claim relate to sweeping statements made by Court of Session judge Lord Woolman in his 2014 opinion of Nolan v Advance Construction (Scotland) Ltd.

An evidence review of court documents, including transcripts from the case, and now John Campbell’s response to the SLCC indicate Lord Woolman’s statement – that Nr Nolan “vastly” reduced the claim on his own – is incorrect.

Woolman’s opinion, of 17 January 2014 stated “In the course of the proceedings, Mr Nolan has greatly narrowed his claim. In June 2012, he deleted his conclusion for specific implement. At the close of the proof, he abandoned his claim for lost development value, which he had originally valued at £4 million. He also accepted that some elements of the claim for investigative costs are properly classified as litigation expenses.”

However, and in a move which now discredits key parts of the Woolman opinion – John Campbell failed to produce to legal regulators – any evidence of a consultation with his client or evidence that he obtained proper authorisation to strip out key parts of a £6m damages claim – rendering the judge’s now unfounded statements  worthless.

A study of material from the SLCC complaint file handed to investigators at the Scottish Legal Complaints Commission reveals a set of exchanges and written testimony handed to the regulator which show John Campbell QC acted on his own, and without instruction when he removed the £4m head of claim along with legal and professional expenses on the last day of a proof hearing.

The sudden, and unauthorised move by the QC stunned the court and even the judge – who had acknowledged on the preceding day Mr Nolan had a valid claim.

However, Mr Campbell’s own client – the well respected former National Hunt jockey & trainer Donal Nolan was kept in the dark by the senior QC and his assistant – Advocate Craig Murray of Compass Chambers.

Responding to allegations Campbell acted on his own, the QC claimed: ”I did not act without instructions. The Court adjourned while I took instructions on this very matter. Mr Nolan was not in attendance.”

“I asked that he be brought to Court. The Court’s Minute of Proceedings discloses that i sought and obtained an adjournment for that purpose. The same day, I wrote a Note for Mr Nolan.”

However, an email presented to the SLCC as part of the complaints file reveals a much different version of events where John Campbell writes in an email to Mr Nolan’s solicitor saying he does not want to see his client.

Campbell’s email to his client’s solicitor reads: “Melanie has given instructions to do without Steven Brown. I am content with those instructions. Craig is getting them in writing and l will write a Note of Advice. You DO NOT need to bring Donal through here this afternoon”

In reality, the ‘instructions’ Mr Campbell referred to in his email – never existed.

Advocate Craig Murray – mentioned in the email and who was serving as Junior Counsel – later denied he ever received any written instructions from Mr Nolan’s partner with regard to dealings with the witness referred to by Campbell.

And despite repeated requests by the pursuer for Mr Campbell and other members of the legal team to produce such written instructions to the SLCC investigation, none were forthcoming.

Campbell’s explanation goes on to say: “I also have a verbatim note of proceedings on that day, taken by junior counsel, which demonstrates quite clearly that I sought and obtained an adjournment to take instructions on this matter, and to have the pursuer himself attend. I can make that verbatim note available if the SLCC wishes to see it …”

However, the additional “verbatim note” referred to by John Campbell – was never produced despite repeated requests.

Campbell further attempted to justify his removal of the £4.1m head of claim.

John Campbell wrote: “Further, the decision to proceed without this part of the claim was fully explained, first to Mrs Collins, and then subsequently to Mr Nolan. It was endorsed by junior counsel, and understood by the solicitors. I am in no doubt at all that it was fully understood by all.”

However, a media investigation and study of the case file has concluded there is NO discoverable trail of consultation or any subsequent written or verbal authorisation for removal of the £4.1m head of claim between the QC, the Edinburgh Agents Drummond Miller, the solicitor in charge of the case or the client – Mr Nolan.

In the same letter to the SLCC, John Campbell attempted to blame the client’s solicitor for a failure to include the words “without prejudice” in a letter to Levy & Mcrae – the defender’s legal agents – even though it was Campbell himself who drafted the letter and had omitted to put in the words now under dispute.

Mr Campbell then claimed he discussed with his client – the possibility of capping the site at Branchal in Wishaw – the same site the defenders had accepted their dumping of the contaminated material had been unlawful.

Capping – a technical term of dealing with dumped material refers to layers of soil placed over the dumped material. However, if the material is contaminated, this method of dealing with hazardous waste renders a site unusable.

An interview with the client – Mr Nolan, has established no such discussion with Mr Campbell on the subject of ‘capping’ ever took place.

And expert testimony seen by reporters has revealed any ‘capping’ of the Branchal site would have rendered it worthless for future development.

In the same response to the SLCC, John Campbell claimed bombshell evidence from a North Lanarkshire Councillor – who alleged bribes or inducements had been offered for him not to give evidence in court – “was in the end irrelevant to the issues which the judge had to determine”.

The Councillor gave a precognition to Campbell’s Junior – Craig Murray of Compass Chambers. Murray is now an ad-hoc Advocate Depute for the Crown Office in the High Court. Also present during the Councillor’s precognition was Fiona Moore – head of litigation for Edinburgh law firm Drummond Miller.

Both Craig Murray and Fiona Moore have been asked questions by the press over their involvement in the case, however both refused to comment.

A full report on Craig Murray’s involvement in the case features here: Second version of Advocate Depute’s letter to legal regulator ‘removed bribe offer’ in evidence considered by Faculty under ex-dean, now Lord Advocate James Wolffe QC

In respect of the evidence relating to bribery, legal insiders speculate if the court had heard the evidence of an attempt to bribe an elected councillor – it is most likely hearings would have been halted while a criminal investigation by Police Scotland took place, along with attendant media interest.

And, a recent press interview with the councillor has since established the offer of an inducement did in fact, take place, naming two individuals connected to companies involved in the court action.

Serious questions remain as to why this evidence relating to bribery was not introduced during the court case, and the motives of Mr Campbell in omitting such headline grabbing material from the court.

One witness who has since spoken to journalists said he felt Mr Campbell had an “alternate agenda” in the lines of questioning he had previously indicated would be asked compared to what questions Campbell eventually asked of witnesses in court..

On the point of calling a star witness in the case – Cabinet Minister Alex Neil MSP – John Campbell writes “The evidence of Mr Neil MSP was not required. I accept responsibility for not calling him”

However, it is likely the headlines generated by a Scottish Minister with the rank of Alex Neil – who was Cabinet Secretary for Health at the time – would have generated headline attention to his evidence which in turn may have led to developments in the case.

Papers obtained by journalists including a witness list from the case – have now established the Cabinet Secretary for Health & Wellbeing was to be called as a witness on the first day of the proof in Nolan v Advance Construction (Scotland) Ltd.

The move to call Mr Neil on the first day gave a clear indication of the importance placed on Mr Neil’s evidence.

However, the Cabinet Minister was kept waiting in the witness room for around four hours by senior counsel John Campbell – to a point where it became clear Mr Neil was not destined to appear that day.

Mr Neil then had to leave the court for a meeting, and was not called again by Campbell QC.

A study of evidence from Mr Campbell’s written explanation to the SLCC clearly indicates the senior QC never had any intention of calling Mr Neil despite all the plans made to do so and the expectation of his client.

Despite Campbell’s claim to the SLCC the evidence of Alex Neil was unimportant and not relevant to the case, it has now emerged John Campbell personally took Alex Neil’s precognition statement – an unusual move but one indicating the emphasis placed on testimony of such a high ranking politician.

Ultimately, the episode involving Mr Neil not being called as a witness could be viewed as symptomatic of John Campbell’s treatment of the case and his client.

Speaking to Diary of Injustice, Mr Nolan’s partner has indicated a clear and consistent line of dishonesty ran throughout their dealings with the Senior counsel.

Further material now handed to journalists on the case includes a copy of an audio interview with John Campbell QC, Advocate Craig Murray, Gregpr McPhail, the pursuer’s solicitor and the pursuer’s partner.

The explosive audio recording – in which Campbell admits taking instructions from Ms Collins – even though he claimed to the SLCC he had no professional relationship with her, is set to be submitted to the Scottish Legal Complaints Commission and the Faculty of Advocates in a revamped complaint against the senior QC.

And now, additional material passed to journalists which covers work done by Edinburgh law firm Drummond Miller on behalf of Mr Nolan – raises serious concerns as to their conduct and work carried out on behalf of their client.

In a letter dated 9 October 2014 from Fiona Miller – Head of Litigation for Drummond Miller – to Simpson & Marwick (now Clyde & Co) who were now defending John Campbell QC against the complaints raised in relation to his provision of legal services, Fiona Moore confirms “Many consultations and meetings took place between Mrs Collins and counsel which we [Drummond Miller] were not party to.” – blowing apart claims by Campbell to the SLCC he had no relationship with Ms Collins.

However, Fiona Moore then goes on to state to Simpson & Marwick “I trust this assists and that the complaint is successfully defended. If you require anything further, please do not hesitate to contact me.”

The tone of Fiona Moore’s letter raises serious questions over Drummond Miller’s relationship with their own client, Mr Nolan and the law firm’s apparent willingness to engage in a concerted attempt to thwart investigation of the complaints against the QC.

The firm’s willingness to side with their legal colleague came even though all parties had been aware Campbell was regularly breaking Faculty rules and ostensibly wanted to control the case on his own rather than use proper channels of solicitor, Edinburgh agents to speak to his client.

It has also been pointed out Drummond Miller frequently appear in the Court of Session for clients – and would easily have been aware of the identify of Lord Malcolm, who is reported to have heard the Nolan v Advance Construction (Scotland) Ltd case no less than eight times, while failing to declare a conflict of interest.

Yet when asked questions as to why Drummond Miller did not alert their client – Mr Nolan – to any potential conflict of interest between Lord Malcolm and the solicitor who represented the defenders – his son – Ewen Campbell, Drummond Miller partner Fiona Moore refused to comment.

With the complaints file now being available for study and full publication – there is a possibility of further complaints against Craig Murray and other legal agents involved in the case who sought huge fees and legal aid for their work being made to legal regulators.

A recent attempt to illicit comment from John Campbell QC failed, marking a consistent line of silence from the senior QC in response to questions from the press.

Asked for a comment, the Scottish Legal Complaints Commission said it would give no further statement to the press on this case.

The Faculty of Advocates have also refused to speak to the press on Mr Campbell’s actions and their previous investigation which it has since been confirmed relied on a second, highly edited version of written evidence given by fellow Advocate Craig Murray – which Murray now contests ever existed.

Journalists are now studying a series of damning environmental reports from Court of Session papers – which accuse North Lanarkshire Council, and two construction companies – Advance Construction (Scotland) Ltd and Graham Construction Ltd of being responsible for the dumping of contaminated material at Branchal.

The investigation has so far revealed John Campbell QC had sight of the material but failed to make proper use of the damning reports – raising concerns he was not presenting the full facts of the case as instructed by his client.

The reports – due to be published by the press in full – also raise serious questions about the conduct of Scotland’s environmental regulator – the Scottish Environment Protection Agency (SEPA) – whose failures in this case could not be categorised as ‘accidental’.

“The National” newspaper carried an exclusive investigation into the Nolan V Advance Construction Ltd case, here: Couple’s human rights breach claim raises questions about how judicial conflicts of interest are policed. The newspaper’s investigation revealed there are moves to take an appeal to the UK Supreme Court at a date to be decided.

BURNING QUESTIONS: QC fails to answer queries from Media

The QC at the centre of the cash for services scandal – John Campbell QC has consistently refused to talk to any media.

Campbell’s silence comes after publication of his own communications revealed the senior QC demanded sums of £5,000 at a time be paid to him in cash or cheque form – a breach of the rules as laid down by the Faculty of Advocates.

Journalists put the following questions to the senior QC, however John Campbell failed to reply to all requests for comment.

1. In a letter dated 5th of June 2014 sent to the SLCC you state to the SLCC that you had no professional relationship with Mrs Collins who is Mr Nolan’s partner. Any comment on this?

2. In a letter sent to Simpson Marwick dated 9th of October 2014 from Fiona Moore she states clearly that as you are no doubt aware , the case was in any event being run by Melanie Collins, Mr Nolan’s partner and that it was she who gave all the instructions in the case. This is clearly at odds with what you state to the SLCC. Any comments on this?

3. Returning to your letter to the SLCC you state you did not act without instructions    Who gave you these instructions? Any comment on this?

4. Copy correspondence also received from the instructing solicitor to Ms Collins clearly states no instructions were ever given by him to remove this part of the claim. Drummond Miller also state they gave no instruction to drop any part of this claim. Any comment on this?

5.It is clearly evidenced by court transcripts that Mr Woods of DMHall was only in court to speak to productions D5 and D 10 which were valuations he prepared for the Heritable Creditor the Clydesdale Bank and nothing else. Any comment on this?

6. Again in your letter to the SLCC page 2 you state the decision to proceed without the blight claim was fully explained to Mrs Collins, Mr Nolan and Mr Falls when in fact I have now been passed an audio tape recording where you clearly state you removed this claim yourself without any instructions. Any comment on this?

7. Lastly, the emails you sent to Ms Collins asking for collections of £5k in fees at a time, again you stated you had no professional relationship with Ms Collins yet frequently broke Faculty rules by demanding collection of fees in cash to be provided by her. How can it be you claim no professional relationship with Ms Collins yet seek to engather fees? Any comment?

DO you have a complaint with the Scottish Legal Complaints Commission or Faculty of Advocates?

What is your experiences of dealing with the SLCC or the Faculty? Has your solicitor, advocate or QC demanded cash payments from you at any stage of a civil or criminal case? Tell us more about it in confidence, by email to scottishlawreporters@gmail.com

 

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REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers – Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

Review panel to consider self-regulation of lawyers. THE Scottish Government has announced an ‘independent’ review into how lawyers regulate their own colleagues – with a remit to report back by the end of 2018.

The move by Scottish Minsters, coming after discussions with the Law Society of Scotland – is intended to answer concerns  amid rising numbers of complaints about poor legal services and the diminishing status of Scotland’s legal services sector,

However, former Cabinet Minister Alex Neil MSP (SNP Airdrie and Shotts) said the review should include judges and the membership of the review team should be expanded to balance up the panel’s current top heavy legal interests membership.

Mr Neil recently branded the Scottish Legal Complaints Commission (SLCC)  “a toothless waste of time” – after the legal services regulator failed to act in a high profile case involving a senior QC caught up in a cash payments scandal.

The review, led by NHS 24 chair Esther Roberton, is intended to make recommendations to modernise laws underpinning the legal profession’s current regulatory system including how complaints are handled.

This follows concerns that the current legislative framework is not fit for purpose and has not kept up with developments in the legal services market. There are also worries that the current processes for people wishing to make complaints about their solicitor are too slow and too complex.

However, doubts about the impartiality of the panel have been raised after the announcement by Legal Affairs Minister Annabelle Ewing revealed a top-heavy compliment of figures from the legal establishment who are keen on protecting solicitors’ self regulation against any move to increase consumer protection by way of independent regulation.

The list of panel members includes:

*Two former Presidents of the Law Society of Scotland;

* The current Chief Executive of the pro-lawyer Scottish Legal Complaints Commission;

* An outgoing Scottish Public Services Ombudsman widely criticised for ineptitude;

* The current chair of the Scottish Solicitors Discipline Tribunal (SSDT) – who struck off only six solicitors last year;

* The chair of a law firm whose partners have regularly appeared before the SSDT;

* A QC from an advocates stable where colleagues have been linked to a cash payments scandal;

* A former Crown Office Prosecutor & QC linked to events in the David Goodwillie rape case – where the victim was forced to sue her assailant through the civil courts after the Lord Advocate refused to prosecute the footballer.

Announcing the review, Legal Affairs Minister Annabel Ewing said: “Members of the public must be able to have confidence in the service they get from their solicitor. While this happens most of the time, I have been listening carefully to concerns that the current regulatory system in Scotland may leave consumers exposed and does not adequately address complaints.”

Speaking yesterday to journalists, former Cabinet Minister & SNP MSP Alex Neil generally welcomed the review, adding the review remit should also include judges.

Alex Neil said: I hope it produces radical and robust proposals. I also hope it covers the judiciary as well as lawyers.”

Mr Neil also called for greater fairness in the panel’s membership, to include members from outside the legal establishment.

Mr Neil added: I hope the membership of this review panel will be expanded to get a better balance between lawyers and non-lawyers”

The latest move by Scottish Ministers to reform self regulation of solicitors and advocates comes years after a move in England & Wales to more robust independent regulation of legal services – which has left Scots consumers & clients at a clear disadvantage.

And while clients in the rest of the UK have much more of a chance to obtain redress against legal professionals who consistently provide poor legal services – and see their lawyers named and shamed in public by the Solicitors Regulation Authority (SRA) and Legal Ombudsman (LeO),

At pains to point out the ‘independent’ nature of the review, the Legal Affairs Minister said: “This independent review will consider what changes may be needed to the statutory framework for the regulation of legal services to protect consumer interests and promote a flourishing legal sector. This includes ensuring that consumers properly understand the options open to them when something goes wrong and that the regulatory framework is proportionate for legal firms. I look forward to receiving its recommendations in due course.”

Chair of the review – Esther Roberton said: “I am delighted to have been asked to undertake this review. Our legal profession and legal services in Scotland are the envy of many around the world. We should be just as ambitious for our system of regulation of legal services. I would hope we can simplify the current complaints process to maximise consumers’ confidence in the system. I look forward to working with the panel members who bring a broad range of experience across a range of sectors.”

However, questions have surfaced over the actual intentions of the review after legal insiders revealed today the proposals only came about after long discussions between the Scottish Government and the Law Society of Scotland – the legal profession’s main lobby group in Scotland who enjoy the greatest benefit of self regulation.

Legal insiders have suggested the review is not widely seen as a serious move by Scottish Ministers to reform self regulation.

Rather, this third attempt at addressing failures of regulation and poor legal services provided by increasingly less qualified legal representatives is a reaction to the failure of Scotland’s legal services sector to put it’s own house in order amid diminishing business, a reduced client base, rising numbers of complaints.

The latest Government sponsored shot in the arm of lawyers – which one solicitor said this morning “may end up calling for more public cash and an increase in the legal aid budget” – comes on the back of a complete failure to attract international litigants who are wary of entering Scotland’s famously unreliable, expensive and poor legal services market.

Access to justice and legal services in Scotland are internationally well known as being hampered by slow proceedings in courts dubbed “Victorian” and “out of date” by both of Scotland’s recent top judges.

VESTED INTERESTS – Legal Profession welcome their own review:

The SLCC welcomed the announcement by the Minister for Community Safety and Legal Affairs of a review of how best to reform and modernise the statutory framework for the regulation of legal services and complaints handling in Scotland.

SLCC Chief Executive Neil Stevenson, one of the review panel members, commented “We are pleased that the Scottish Government has announced this review, in line with the manifesto commitment.  We hope our Reimagine Regulation legislative change priorities paper, which we published last year, will be one helpful contribution to the review.  In that paper we looked at some of the innovative thinking in regulation and standards coming from the health professions, so we are especially delighted to see that expertise represented in the review panel alongside huge knowledge of the legal sector.   We look forward to this range of experience and expertise being shared as part of this process, and a collaborative approach to identifying priorities and opportunities for reform.”

SLCC Chair Bill Brackenridge added, “This will be an excellent opportunity for all the key stakeholders involved to come together in supporting the review as it considers the regulatory landscape in order to support growth in the legal services sector and strengthen consumer protection.  Despite many strengths to the current system, the Board of the SLCC believe there are significant opportunities to make regulation more targeted, more effective and more efficient.”

The Law Society of Scotland has welcomed the Scottish Government’s announcement today, Tuesday, 25 April, of an independent review of legal services, saying that current legislation governing the legal sector is no longer fit for purpose.

Law Society of Scotland president, Eilidh Wiseman said: “There have been huge changes in the legal market over recent years.  Changing consumer demands and new business structures are transforming the way legal services are being provided.

“This is why we have argued so strongly for reforms to the patchwork of legislation which covers the regulation of legal services in Scotland.  The main Act of Parliament governing solicitors is more than 35 years old and simply no longer fit for purpose.  We know the processes for legal complaints are slow, cumbersome, expensive and failing to deliver for solicitors or clients.  There are gaps in consumer protection, contradictions and loop holes in the law.  This is why change is so desperately needed to allow the legal sector to thrive and ensure robust protections are in place for consumers.

“The Scottish Government’s independent review offers the chance to build a consensus on how reforms should be taken forward.  It is vital for the work of the group to move as quickly as possible so new legislation can be introduced before the Scottish Parliament.”

The Law Society has highlighted its concerns about areas of legal services which remain unregulated in Scotland.

Wiseman said: “One area we will highlight to the review group is the growing level of unregulated legal services where consumers are at risk if something goes wrong. Many people are unaware that some types of legal services are not regulated – for example, receiving employment advice from a non-solicitor.  They may have little or no course of redress if something goes wrong. Consumers deserve the same level of protection whether they choose to go to a solicitor, and are therefore covered by Law Society client protections, or to use another legal services provider.”

Two former Law Society presidents, Christine McLintock and Alistair Morris, will serve on the legal services review panel.

Wiseman said: “I am particularly delighted that Christine McLintock and Alistair Morris will be part of the review group. With their considerable board-level expertise alongside their combined insight and knowledge of the legal sector, they will prove invaluable to the review process. They understand the need for reform and, having both served on regulatory sub-committees, bring a deep commitment to the public interest.”

Christine McLintock, as former general counsel for Pinsent Masons, was responsible for the firm’s in-house legal service, professional risk management and compliance. Christine joined the Law Society’s Council in 2005 and has served on the Society’s Board since its inception in 2009. Prior to that, she was a member of the Strategy and Governance Group and was Convener of the Education and Training Committee, before to serving as President in 2015-16. She is currently part of the team working on the regulation of licensed legal services providers and is Convener of the Law Society’s Public Policy Committee.

Alistair Morris was appointed CEO of Pagan Osborne in 2005, having built extensive expertise in private client work at the firm. He was elected to join the Law Society Council in 1992, becoming one of its longest serving members at 24 years. Alistair also served as a board member between 2009 and 2016, and was Convener of the Guarantee Fund Sub-committee (now Client Protection Fund Sub-committee) prior to his election as President in 2014. Alistair currently sits on the Judicial Appointments Board for Scotland.

The Dean of Faculty, Gordon Jackson, QC, has responded to an announcement by the Scottish Government of an Independent Review of the Regulation of Legal Services.

Mr Jackson said: “I welcome that this review is taking place. It is very important that the legal profession retains the confidence of the public. I know that the Faculty of Advocates has earned that confidence, and that this thorough review will demonstrate that an independent referral bar has been, and will continue to be vital in maintaining an effective and fair justice system.

“The Faculty will willingly co-operate fully with the inquiry and I am confident that the considerable experience of the Faculty’s representatives, Laura Dunlop, QC, and Derek Ogg, QC, will be of great value.”

Review should include judiciary:

Scotland’s judges have earned themselves widespread criticism and condemnation at Holyrood and from the Judicial Complaints Reviewer (JCR) – after top judges failed to address complaints and become more transparent and accountable like other branches of Government.

Ongoing efforts by the Scottish Parliament’s Public Petitions Committee to create a register of judges’ interests have been flustered by two Lord Presidents – Lord Gill & current top judge Lord Carloway.

The proposal to bring greater transparency to Scotland’s judiciary – Petition PE1458: Register of Interests for members of Scotland’s judiciary – 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 current review could include the judiciary in terms of how judges regulate themselves, however the Scottish Parliament should be left to get on with the task of creating a register of judges’ interests – given the five years of work already undertaken by MSPs on the thorny question of judicial declarations.

REVIEW THE REVIEW: Third attempt at reforming biased system of solicitors self regulation.

The latest review of the way lawyers regulate themselves marks the third attempt at addressing problems created by Scotland’s pro-lawyer system of self regulation, where lawyers write the rules, and look after their own.

In 2001, the Scottish Parliament’s Justice 1 Committee, under the Convenership of Christine Grahame MSP, met to consider evidence in relation to calls to reform regulation of the legal profession.

The inquiry, gained by the late, widely respected MSP, Phil Gallie, heard evidence in relation to how complaints were investigated by the legal profession.

However, Mr Gallie was replaced by Lord James Douglas Hamilton, and the Committee eventually concluded not to amend how the Law Society regulated Scottish solicitors.

A second, more substantive attempt to reform regulation of the legal profession came about in 2006, with the Scottish Parliament’s then Justice 2 Committee taking on consideration of the proposed Legal Profession & Legal Aid (Scotland) Act, which received Royal Assent in 2007.

The LPLA Act led to the creation of the now widely derided Scottish Legal Complaints Commission – once touted as an ‘independent’ solution to handing complaints against solicitors and advocates.

A mere nine years after the creation of the SLCC in 2008, the badly run legal quango, often itself the subject of scandal, charges of incompetence and downright bias – has become as much a threat to consumer protection as the Law Society itself was in the days when complaints were handled at the Law Society’s former HQ in Drumsheugh Gardens, Edinburgh.

Regulating the legal profession: Usual suspects selected by legal profession to carry out independent review on regulation of solicitors:

The independent review of the regulation of legal services in Scotland is expected to consult widely with stakeholders and report to Scottish ministers by the end of 2018.

The independent chair of the review is Esther Roberton, current chair of NHS 24. Ms Roberton has extensive senior leadership experience in the NHS and other areas of public life.  She is also currently a board member of the Scottish Ambulance Service (2014-18).  She was chair of SACRO (2010-2014) and until recently also sat on the Crown Office and Procurator Fiscal Service Audit and Risk Committee (COPFS ARC).

The review panel have confirmed their participation as follows:

•    Christine McLintock – immediate past president Law Society of Scotland
•  Alistair Morris – chief executive of the management board, Pagan Osborne (Law Society of Scotland)
•      Laura Dunlop QC – Hastie Stables (Faculty of Advocates)
•      Derek Ogg QC – MacKinnon Advocates (Faculty of Advocates)
•   Neil Stevenson – chief executive of the Scottish Legal Complaints Commission
•      Nicholas Whyte – chair of Scottish Solicitors’ Discipline Tribunal
•      Ray Macfarlane –  chair of the Scottish Legal Aid Board
•      Jim Martin – outgoing Scottish Public Services Ombudsman
•      Dr Dame Denise Coia – chair of Healthcare Improvement Scotland
•      Prof Lorne Crerar – chairman, Harper Macleod LLP
•    Prof Russel Griggs – chair of the Scottish Government’s Independent Regulatory Review Group
•     Trisha McAuley OBE – independent consumer expert

 

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POLICING SECRETS: Former Scottish Police Authority board member Moi Ali invited to give evidence at Holyrood, after MSPs accuse SPA bosses of running Police watchdog like Kremlin ‘secret society’

Former SPA Board member & crusading JCR Moi Ali. A FORMER Board member of the Scottish Police Authority SPA) – who resigned after raising concerns over a lack of transparency at the Police watchdog – has been invited to give evidence to MSPs investigating secrecy and a lack of accountability at the Police supervisory body.

The decision by the Public Audit and Post Legislative Scrutiny Committee of the Scottish Parliament to invite former SPA Board member Moi Ali to give evidence – came after a meeting on Thursday, where bosses at the Scottish Police Authority faced tough questions from MSPs on secrecy, alleged cover-ups and the “appalling” treatment of critics.

During the stormy evidence session with MSPs, Andrew Flanagan, chairman of the Scottish Police Authority was forced to admit he withheld a letter from colleagues which criticised plans to hold board committee meetings in private, leading to accusations the chairman was treating other board members “like infants”.

In animated exchanges during the meeting held on Thursday last week, Former Cabinet Minister & Committee member Alex Neil MSP (SNP Airdrie and Shotts) told SPA Chairman Andrew Flanagan he was running a “secret society”.

Mr Neil said: “This is not the Kremlin you are running, it is supposed to be an open public body. We have this secret society … inside the board … deciding on transparency of governance and the whole thing is done without public knowledge, without people out there being able to hold this board to account.”

Replying to Alex Neil on the matter of not sharing the letter, Mr Flanagan said “I didn’t think it was necessary to circulate the letter itself.”

However – Mr Neil told Mr Flanagan he had breached “every rule in the book” by refusing to share the document with the rest of the SPA Board.

Alex Neil went on to describe the Scottish Police Authority as “a shambles”.

Scottish Police Authority – Public Audit and Post-Legislative Scrutiny Committee – Scottish Parliament: 20th April 2017

The full transcript of the meeting has now been published, available here: Official Report: Public Audit & Post Legislative Scrutiny Committee 20 April 2017

A revealing sample of the Official Report, where Committee member Alex Neil MSP questions witnesses from the Scottish Police Authority & Scottish Government follows:

Alex Neil (Airdrie and Shotts) (SNP): I want to address the issue of the letter dated 9 December 2016 from Derek Penman, Her Majesty’s chief inspector of constabulary, to Andrew Flanagan,chair of the board, in which Mr Penman makes a number of substantive points about the governance of the SPA. When was the letter dated 9 December circulated to the board?

Andrew Flanagan (Scottish Police Authority): I do not think that it has been circulated to the board.

Alex Neil: It has not been circulated to the board. The letter is from the chief inspector of constabulary about the governance of the SPA, in which he makes substantial points. He specifically says: “I accept that it will properly be a matter for the Board to approve the Corporate Governance Framework and my comments are intended solely to inform members ahead of their decision next week”, which was five days after the letter was sent. Why was the letter not circulated to the board?

Andrew Flanagan: That was because the issues themselves had been well trailed and were well known. Derek Penman’s position on those matters had been expressed to members of the board and so was known. Therefore, I did not think it necessary to circulate the letter itself.

Alex Neil: It is not within your remit to make a decision like that. Under the guidelines and under statute, every board member is entitled to know what the chief inspector of constabulary says. Those were substantive points that, in many respects, were very critical of the governance review. Surely to goodness the letter should have gone to every board member before the meeting in December.

Andrew Flanagan: As I have said, the board members were already aware of the comments that Derek Penman expressed. That had been discussed at our meeting on 5 December and a number of the matters had been covered at that point.

Alex Neil: I find that very unacceptable indeed. It breaches every rule in the book about the role of a chair, particularly of a public organisation, and about the issuance of letters to board members. Every board member should have had a copy of that letter and it should have been discussed at that board meeting in December. You are not running the Kremlin; the SPA is supposed to be an open public body in which you are accountable to the board members. The view of the chief inspector, who has statutory responsibility for such matters, as it was set out in that letter, should clearly have been sent to every board member.

Andrew Flanagan: The letter was addressed to me and I believed that the matters had already been covered by the board and that members were aware of them.

Alex Neil: It was addressed to you, but Mr Penman said clearly that he wanted the letter to go to every board member. He specifically said that the letter was to inform board members at their meeting next week before they reached any decisions, but you took a unilateral decision not to circulate that to board members.

Andrew Flanagan: Yes, I did. As I said, the contents of it were well known to board members.

Alex Neil: That is not the point. The letter should have been circulated. Mr Foley, did you know that it was not being circulated to board members? Did you see the letter?

John Foley (Scottish Police Authority): I do not recall seeing it at that particular point in time.

Alex Neil: So the chief executive did not see the letter either.

John Foley: I may have seen it, but I do not recall it.

Alex Neil: You may have seen it. It is a very important letter from the chief inspector of constabulary. Either you saw the letter before the meeting or you did not. Yes or no, did you see the letter before the board meeting?

John Foley: I am telling you that I do not recall seeing it. I recall having conversations with Mr Penman around that time and him expressing his views to me clearly. Having seen the letter and read it in recent days, I find that it is in accord with a conversation that I had at the time, in which Mr Penman expressed his views.

Alex Neil: So you have seen the letter only in recent days.

John Foley: No, I do not recall seeing it at that point in time, but I might have seen it. A large number of letters come through my office. I just do not recall seeing that one.

Alex Neil: To be honest, given the three years of failure at the SPA, I find it hard to believe that its chief executive does not recall seeing a letter of that importance and with those contents. You do not recall whether you saw it. You are the chief executive and the accountable officer.

John Foley: Mr Neil, I cannot tell you that I did if I do not recall it, and I do not recall it.

Alex Neil: Presumably, every time that you receive a letter, it is date stamped. Is that correct?

John Foley: They usually come in via email. That letter is not addressed to me. I am saying that I might have seen a copy of it. It might have been sent to me; I do not know. I do not recall it, but I did not see an original letter that came in at that time, addressed to the chair.

Alex Neil: Right, so the chief executive did not see the letter—or does not recall doing so. Mr Johnston, when did you become aware of the letter?

Paul Johnston (Scottish Government): I cannot give a specific date when I was aware of the letter. I have discussions with Derek Penman, as chief inspector of constabulary, and I have certainly been aware of some of the concerns that he has had and of the issues that he has raised with the SPA. Indeed, he will shortly undertake a full inspection that will cover those matters. Don McGillivray might wish to say more about the sequencing of when the Scottish Government received particular pieces of documentation.

Don McGillivray (Scottish Government): I saw the letter at the time. The Scottish Government received it at the time, as a courtesy side copy, in hard copy from Derek Penman, on an informal basis. It was passed to me very informally, as a hard copy.

Alex Neil: We learned from this morning’s Herald that the Scottish Government gets a copy of all the board papers before each board meeting. Is that correct?

Don McGillivray: Generally, yes.

Alex Neil: Generally. So you would have picked up that the letter was not in the board papers.

Don McGillivray: Yes, we would have been aware of that at the time.

Alex Neil: Did you mention it to Mr Foley or Mr Flanagan? The letter was clearly intended for every SPA board member. Did you draw to their attention the fact that it had not been circulated?

Don McGillivray: I think that we would have regarded that as a matter for the chair to decide on.

Alex Neil: You would have regarded that as a matter for the chair.

Don McGillivray: Yes.

Alex Neil: The SPA was under attack, as it has been—rightly—for the past three years for incompetence after incompetence, including, it would appear, trying to cover up forcing a board member to resign, and yet you did not think that it was important that the letter from the chief inspector had not been circulated to board members.

Don McGillivray: I am clear that the decision on which papers go to the SPA board is for the chair to make.

Alex Neil: Yes, the decision is for the chair. However, in your role as head of police in the Scottish Government, did you not draw attention to the fact that the letter had not been circulated? The letter clearly states that it should go to board members. You knew that it had not gone to board members, because you get the board papers but, despite the importance of the contents, you did not speak to Mr Flanagan or Mr Foley and say, “Would it not be wise to make sure this letter goes to board members?”

Don McGillivray: Again, I would not have seen that as the role of Government. At the time, I would have seen that as the role of the chair.

Alex Neil: Why, then, do you get the board papers?

Don McGillivray: We get the board papers primarily for information. It is simply to make the Government aware of issues that are coming up at the board.

Alex Neil: And you never comment to the board, the chair or the chief executive on the board papers before they go to the board.

Don McGillivray: We occasionally make comments on the papers, but that is usually on matters of factual accuracy more than anything else.

Alex Neil: Nobody in the civil service thought that, given the controversies, it might be a good thing for the chief inspector’s letter to go to board members. Nobody thought to mention it.

Don McGillivray: Again, I would see a difference in the functions of the Government and the SPA in that respect. I am pretty clear that, under the governance framework that exists between the Government and the SPA, it is for the chair and the chief executive to decide on what papers go to the board.

Alex Neil: It is very clear in the rules, however, that a letter such as the one from Mr Penman has to go to board members specifically. The chief inspector asked for it to go to board members, but nobody thought to make sure that the rules were kept to.

For more on Alex Neil’s questions to witnesses from the Scottish Police Authority and Scottish Government, see the full transcript: Official Report: Public Audit & Post Legislative Scrutiny Committee 20 April 2017

As the meeting went on, Public Audit Committee members also criticised SPA Boss Andrew Flanagan – over the treatment of former SPA Board member Moi Ali – who raised concerns about a lack of transparency at the Police Authority during a public meeting.

Flanagan then wrote to Moi Ali – expressing his “dismay” over her public objections to holding more meetings in private.

The SPA Boss commented in the letter that she would not be able to participate in key committees as a result.

Ms Ali complained of attempts to silence her – after she warned that public meetings held by the SPA would end up as a piece of theatre.

Ms Ali said such meetings would be a “theatrical playing-out of decisions” that had been reached in private meetings.

In late February of this year, Moi Ali resigned from her position on the board of the Scottish Police authority.

The Sunday Herald newspaper reported Moi Ali’s resignation, stating: “A Scottish Police Authority board member has resigned after believing she was punished for raising concerns about transparency at the watchdog. Moi Ali was informed by SPA chair Andrew Flanagan that it would not be fair for her to participate on the body’s committees after she objected to plans to hold meetings in private. Speaking exclusively to the Herald, she said: “I’m resigning because I don’t think that it is right for anybody to try to silence board members from expressing their views in public.”

As Thursday’s meeting went on, SPA Chief Andrew Flanagan was asked whether he had considered resigning, Mr Flanagan said he had not.

He added: “I think we are becoming more effective, I think it is important that we recognise that there is already a significant degree of openness through public board meetings that we have.”

The Scottish government has also been accused of political interference in the SPA – after it became known Scottish Ministers and the Scottish Government’s Justice Department received board papers including private documents before meetings took place or material was circulated to board members.

During the Committee meeting on Thursday, Mr Don McGillivray –  a civil servant based at the Police Division of the Justice Department – admitted that the government “occasionally” made comments about reports before publication.

Moi Ali and other former board members of the Scottish Police Authority have been invited to give evidence at a future date to be arranged by the Public Audit & Post Legislative Committee.

Moi Ali – Transparency comes first.

Moi Ali – well known for her previous role as Judicial Complaints Reviewer (JCR) – is a well established champion of transparency in legal and justice related bodies from the judiciary down.

As JCR, Ms Ali gave backing to the widely supported proposal to create a register of interests for members of Scotland’s judiciary: Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Moi Ali evidence Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament

 

Serving as Judicial Complaints Reviewer, Moi Ali appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013.

Ms Ali gave a full account of her role as Judicial investigator to MSPs, and went on to describe oversight of Scottish judges as “Window Dressing”.

At the hearing, Ms Ali also backed proposals before the Scottish Parliament 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.

The full transcript of evidence from Moi Ali during her appointment as Judicial Complaints Reviewer can be found here: Evidence from Scotland’s Judicial Complaints Reviewer Moi Ali to Public Petitions Committee on Petition 1458 Register of Interests for Scotland’s Judiciary,

The proposal to bring greater transparency to Scotland’s judiciary – Petition PE1458: Register of Interests for members of Scotland’s judiciary – 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 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.

During her three year term as Judicial Complaints Reviewer, Moi Ali published three hard hitting reports on the lack of transparency and accountability in Scotland’s judiciary:

Judicial Complaints Reviewer Scotland Annual Report 2011-2012,

Judicial Complaints Reviewer Scotland Annual Report 2012-2013

Judicial Complaints Reviewer Scotland Annual Report 2013-2014

Further coverage of Moi Ali’s time as Judicial Complaints Reviewer along with reports of her support for transparency and accountability in the justice system can be found here: Moi Ali – Transparency and accountability for Scotland’s judiciary

 

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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

Failed legal regulator in ‘QC cash scandal’ needs reform – Alex Neil. THE REGULATOR of Scotland’s legal profession has been branded a “toothless waste of time” by an MSP and former Cabinet Minister – after it emerged the pro-lawyer Scottish Legal Complaints Commission (SLCC)  refused to act against a senior QC named in emails demanding £5,000 cash payments from clients.

Alex Neil MSP (SNP Airdrie and Shotts) – has now 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.”

Ongoing media scrutiny of Campbell’s demands for cash payments of up to £5,000 at a time are now leading to calls for a wider inquiry into the world of cash payments to QCs, advocates and solicitors.

And today, new material released to journalists include a further email from John Campbell to his clients – in which Campbell demands to pick up another £5,000 in cash – while he is on the way to a meeting at Airdrie Sheriff Court followed by a dinner with the Law Society of Scotland.

The email from John Campbell to his client reads as follows: “A little better information about timing. I am due in Airdrie at 4.30. The meeting is in the Sheriff Court, which closes at 6.30. The Law Society is taking me and a colleague for dinner, but I have no idera where. There isn’t a huge number of restaurants in Airdrie, but we’ll find somewhere. This means I won’t be at Bonkle Road until about 8. Is that OK?”

“I have asked JC for a breakdown of the £5000. I will explain to you how a spec case works. I have checked; both John and I are willing to take on a spec case for Donal, but only if he signs up to it. There will be two conditions; one is that you keep the Edinburgh agent fed and watered, and the second is the size of the uplift at the end of the day, as I explained to you.”

The initials “JC” in the email are thought to refer to John Carruthers – a solicitor advocate who started a company called Oracle Law with Campbell back in the mid 2000’s.

Members of the Faculty of Advocates are forbidden from collecting fees and cash directly from clients, as was reported earlier here Investigation reveals Scotland’s ‘top’ Planning QC demanded cash payments & cheques from clients in Court of Session case linked to serious judicial conflicts of interest.

Advocates who personally collect cash payments from clients are in breach of Section 9.9 of the Faculty of Advocate’s Code of Conduct which states: “Counsel should not under any circumstances whatever discuss or negotiate fees with or receive fees directly from the lay client.”

The Sunday Mail investigation revealed John Campbell sent emails to clients demanding cash “in any form except beads” to pay for legal services provided to his client – the well respected former National Hunt jockey & trainer – Donal Nolan.

Campbell then collected cash stuffed envelopes in locations such as restaurants, a garage specialising in servicing Bentley cars, and on a site at Branchal in Wishaw – which became the subject of a court case against Advance Construction Scotland Ltd – who admitted in court their role in dumping contaminated material at the North Lanarkshire site.

Emails from John Campbell QC stated: “I’m writing to confirm that we agreed at our meeting on Friday that we will meet in Dalkeith on TUESDAY morning, when you will give me £5000 towards the fees of your legal team” … “Please let me know if it’s OK to meet at the Mulsanne Garage, which is at 137 High Street, and what time would suit you?”

Campbell’s email also revealed members of the legal team – including ad-hoc Advocate Craig Murray – of Compass Chambers received payments from the cash.

The ongoing investigation into Craig Murray’s role in the legal team revealed Murray was responsible for two versions of a letter bearing his name as author – which were later used to exonerate John Campbell from investigations by the Scottish Legal Complaints Commission & Faculty of Advocates.

Craig Murray also claims to be a successful prosecutor for the Crown Office & Procurator Fiscal Service (COPFS).

Asked for comment, a legal observer said he was surprised legal figures would engage in collecting cash payments before going out to dinner with the legal profession’s main lobbying group – the Law Society of Scotland.

The little talked about, but well known world of cash & carry lawyers & QCs – where demands to clients for anything up to £100K in cash are not unheard of – is now thought to be ripe for investigation after lawyers admitted Campbell “became too bold” in looking for money.

However, in order to thwart any references to regulators being drawn into the fray over the cash payments to QC John Campbell, the Scottish Legal Complaints Commission backed away from action, citing obscure rules implying notification of the evidence to the SLCC was time-barred.

The SLCC said in it’s determination: “Having considered the complaint in accordance with the 2013 Rules as set out in the attached extract, the SLCC determines that there are no exceptional circumstances in this case which would warrant the complaint being accepted. The SLCC has therefore determined that issue 11 of the complaint be rejected under Section 4(1) of the Legal Profession and Legal Aid (Scotland) Act 2007 as the complaint is time-barred.”

The SLCC was asked for comment on why the regulator has turned a blind eye to Campbell’s cash collections –  however no response has been provided at time of publication.

The Faculty of Advocates were asked the following questions:

* Can the Faculty confirm if it is in receipt of John Campbell’s email demanding £5,000 before he attends a meeting with the Law Society, and does the Faculty have any comment on the content, particularly in the circumstances Mr Campbell is on the way to meet one of the legal profession’s main lobbying and regulatory bodies while demanding a sum of cash from his clients?

The Faculty did not issue a response to this question.

* Can the Faculty also confirm whether or not any action or investigation is being undertaken by the Faculty or SLCC in relation to John Campbell QC and allegations recently made in the press in relation to his collection of large sums of cash?

Again, the Faculty did not respond.

* Finally, can the Faculty confirm if it has reported Mr Campbell to HMRC given the size of the cash payments and clear breach of Faculty rules and obvious ramifications of the scale of such payments in cash?

Again, the Faculty did not issue a response to this question.

Instead, a spokesperson for the Faculty of Advocates said: “The Faculty must, by law, refer any complaint to the Scottish Legal Complaints Commission, who then investigate and decide if further action is to be taken, either by them or by the Faculty. In this case, the SLCC decided that no further action should be taken.”

A response from the Faculty also confirmed the appointment of Charlotte Street Partners – an expensive PR & ‘media management’ company who are now working with the Faculty of Advocates.

Charlotte Street Partners was launched in 2014 by former MSP Andrew Wilson and Malcolm Robertson.

The PR company is chaired by Sir Angus Grossart, and comprises a mixture of journalists and former political spin doctors.

Papers from Companies House on Charlotte Street Partners can be viewed here Companies House – Charlotte Street Partners filing history.

Earlier today, journalists were provided with details of discussions with the Scottish Legal Complaints Commission, which now suggest the SLCC are open to the possibility of considering new or reworded complaints regarding John Campbell QC.

Speaking to journalists this morning, Ms Collins indicated she will be submitting fresh complaints to the SLCC, along with new evidence and will be taking into account the Lord Malcolm ruling on hybrid complaints.

John Campbell QC did not reply to requests for comment.

The Sunday Mail reports:

MSP brands legal watchdog a ‘toothless waste of time’ after top QC avoids censure over cash payments

We told last week how John Campbell QC was paid four sums of £5000 in banknotes – £20,000 in total – during the build-up to a court case.

By Craig McDonald 9 APR 2017 Sunday Mail

An MSP has branded a legal watchdog a “toothless waste of time” after it emerged a leading QC will face no action over cash payments.

Campbell took the payments from client Melanie Collins at her home in Bonkle, Lanarkshire, a hotel, a restaurant and a plot of land.

Despite breaching strict rules on fees and contact with clients, Campbell will not be the subject of disciplinary action.

Melanie, 62, reported her concern over the payments to the Faculty of Advocates and the Scottish Legal Complaints Commission after the case concluded but was told her complaint was too late.

The bodies said the position would not change despite calls for an investigation.

Melanie’s MSP, Alex Neil, the SNP member for Airdrie and Shotts, said last week: “This is a good example of how the SLCC is absolutely toothless.

“The legislation is riddled with loopholes. We need a fundamental, urgent review of the powers and remit of the SLCC.

“If people feel they do not have reasonable forms of redress for what is a legitimate complaint, it brings the whole system into disrepute.

“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. 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.”

Melanie and partner Donal Nolan said they paid cash after Campbell emailed them saying he needed “£5000 from you in any form”.

Faculty of Advocates guidelines state: “Counsel should not under any circumstances discuss or negotiate fees with or receive fees directly from the lay client.”

Their ­disciplinary tribunal can hand out fines of up to £15,000. A member can also be suspended or expelled from the faculty.

Melanie said yesterday: “I’m disappointed but not a bit surprised that no action is being taken.

“He clearly broke their rules.”

The payments related to a case involving the couple and a construction firm at the Court of Session in 2013. Judgment was made in early 2014 and Melanie and Donal registered their complaint within days.

An SLCC spokesman said last week: “We can’t disclose information directly to anyone not personally involved in a complaint.”

The Faculty of Advocates said: “We must, by law, refer any complaint to the SLCC, which then investigates and decides if further action is to be taken.

“In this case, the SLCC decided no further action should be taken.”

Campbell, 67, said he did not wish to comment.

CASHING IN – John Campbell QC, Profile:

Year of Call: 1981Year of Silk: 1998 Areas of Practice Commercial, Land & Property, Public Law & Equality

John Campbell called to the Scottish Bar in 1981 and admitted to Lincoln’s Inn in 1990. His primary practice areas are in Town and Country Planning, Energy and Land and Rural Law. He works all over the UK in Planning matters and also in ADR, particularly Arbitrations. He is extensively consulted by regulatory authorities, councils, members of the public and developers. He is very approachable, and places great emphasis on the value of team work. A specialist in inquiry work, he has conducted many types of statutory and non-statutory inquiry, and has appeared in related judicial reviews and appeals. He has acted as counsel in arbitrations, is qualified to sit as an arbitrator, and teaches and writes on planning and environmental law, and domestic and international arbitration law and practice.

He is a Member of Trinity Chambers, Newcastle, where he holds a Direct Access ticket. He is a Member of the Construction Panel of Experts for the Mersey Gateway Project, acting as a Dispute Review Board for the PPP project for a replacement 1500m six lane toll bridge across the Mersey from Runcorn to Widnes. He is an Honorary Fellow of the Royal Incorporation of Architects in Scotland, and Chairman of the SHBT, Scotland’s largest Building Preservation Trust.

John is rated in Chambers 2015, 2016 & 2017 in the field of Planning and Environment:

General Information: LL.B Edinburgh 1972; Assistant Director of Legal Aid, Hong Kong, 1978; Permanent and Juvenile Magistrate, Hong Kong 1980/1981; Advocate 1981;Barrister at Law Lincoln’s Inn 1990
Silk 1998;”Listed Buildings, Conservation Areas, etc” (Green’s Planning Encyclopaedia)

DO you have a complaint with the Scottish Legal Complaints Commission or Faculty of Advocates? What is your experiences of dealing with the SLCC or the Faculty? Has your solicitor, advocate or QC demanded cash payments from you at any stage of a civil or criminal case? Tell us more about it in confidence, by email to scottishlawreporters@gmail.com

 

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