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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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‘Judicial Independence’ gives vested interests, tax dodging, rich judges an immunity from transparency says top judge as Lord Gill refuses to answer MSPs questions over register of judicial interests

Judicial Immunity from transparency – Lord Gill will not answer questions over judge’s financial interests. SCOTLAND’S top judge, Lord President Lord Brian Gill has again refused to attend the Scottish Parliament to answer questions from MSPs who are considering the issues of judicial transparency raised in Petition PE1458: Register of Interests for members of Scotland’s judiciary, filed by Scots law journalist Peter Cherbi.

The petition, which has caused several run-ins with Lord Gill, who was previously viewed as more open to change in the justice system, calls on the Scottish Parliament to legislate for a requirement that all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

The latest letter from Lord Gill to the Convener of the Public Petitions Committee, David Stewart MSP, which is dated 28 May 2013, cites issues of “constitutional principle” and the “independence of the judiciary” as reasons for Lord Gill’s refusal to attend the PPC to give evidence on judge’s interests and provide details on how the current system of judges recusing themselves operates in Scotland. The response from the Lord President also fails to answer questions now put twice to the Lord President, asking for statistical information on how the system of judges recusing themselves operates.

Again, the Lord President sidestepped all the questions from MSPs and merely stated “The Lord President has been responsible for matters concerning the conduct of judicial office holders since April 2010. During that period there has been no case in which a judge has been found guilty of misconduct for a failure to recuse.”

Lord Gill has now been asked twice by MSPs to provide information on how many judges have been recused and whether there is more detailed evidence on the effectiveness of the current system. Clearly these are not questions Scotland’s top judge can or is willing to provide answers to, raising serious questions over the honesty and integrity of Scotland’s judiciary.

Lord Gill went on to cite the Scotland Act, reminding MSPs they may not require a judge to attend proceedings for the purposes of giving evidence, claiming the missing part of the Scotland Act was not a loophole, rather a protection mechanism for protecting the independence of the judiciary from politicians. However, many will see this as a mechanism for covering the backs of the unelected judiciary who are bitterly resisting transparency and hold such power they can easily strike down legislation with one mere comment or opinion in court.

In an attempt to placate his stubborn position on the protection of judges vast secret & financial interests, as well as records of criminal convictions including Benefits Cheating, Lord Gill again cited an EU report which itself has been prepared and written by judges who have a vested interest in preventing any register of judicial interests going ahead. The report,which Lord Gill and the Scottish judiciary are relying on to keep their dirty linen secret, is available here : GRECO FOURTH EVALUATION ROUND Corruption prevention in respect of members of Parliament, Judges and Prosecutors.

Lord Gill conveniently left out of his letter to the PPC Committee Convener, any references to his judicial colleagues who had signed up to be interviewed to complete the EU report, rather than attending the Scottish Parliament to answer questions on their own secretive financial interests.

Lord Gill ended his letter by offering to meet the Committee Convener in private to discuss the constitutional implications of the Public Petitions Committee’s invitation. The irony of Scotland’s to judge holding secret meetings to discuss a call for transparency within the judiciary will not be lost on legal observers to this on-going battle over the hidden secrets of Scotland’s judges.

Lord Gill’s letter to the Convener of the Public Petitions Committee David Stewart MSP, in full :

Lord Gill’s second refusal to answer questions on judges secret & financial interests PUBLIC PETITION PE1458

Thank you for your letter of 18 April 2013. I regret that I again have to decline your committee’s invitation to appear before it. I do so for reasons of constitutional principle. I intend no discourtesy to your committee.

Judges have from time to time given evidence to committees of the Scottish Parliament on matters that affect the administration of justice in Scotland. I hope that that has been helpful in the legislative process. Judicial participation in the work of the committees must however be kept within prudent limits.

Section 23(7) of the Scotland Act provides inter alia that the Parliament may not require a judge to attend its proceedings for the purposes of giving evidence. This is not a loophole. It is a necessary part of the constitutional settlement by which the Parliament is established. Its purpose is to protect the independence of the judiciary, a vital constitutional principle that is declared in section 1 of the Judiciary and Courts (Scotland) Act 2008.

When a committee invites a judge to give evidence before it, I have to decide whether the subject matter might infringe the principle of judicial independence; and whether the evidence required could be satisfactorily given in writing.

In my correspondence with you I have set out carefully why I believe that a register of interests for the judiciary is both unnecessary and unworkable. I have directed you to an independent scrutiny of the judiciary in the United Kingdom that has on two occasions considered and rejected the need for such a register. I have also directed you to the decision of the United Kingdom Government to accept that finding, and to the decision of the United Kingdom Supreme Court not to create a register. That I think, is as much useful evidence as I am in a position to give on the subject; but if there is any further information that you feel would be relevant and helpful to the committee, please let me know and I will consider the matter further.

In your letter you have asked whether any central record has been kept of failures by judges to recuse themselves. The Lord President has been responsible for matters concerning the conduct of judicial office holders since April 2010. During that period there has been no case in which a judge has been found guilty of misconduct for a failure to recuse.

If you would find it helpful I would be pleased to meet with you to discuss the constitutional implications of the Committee’s invitation.

Lord Gill earlier refused to attend the Petitions Committee to discuss issues raised in Petition PE1458, reported here : Scotland’s top judge Lord Gill refuses to attend Scottish Parliament to face questions over opposition to register of judicial interests

Diary of Injustice reported on an earlier meeting of the Petitions Committee on 5th March 2013 where MSPs initially invited Lord Gill to attend Holyrood, here : SILENCE IN COURT : Scotland’s top judge Lord Gill summoned to Parliament over ‘vested interests’ attempt to block Register of Judicial Interests petition and video footage of that earlier meeting is also available online here : Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament.

All previous reports from Diary of Injustice and further information on the drive to create a register of interests for Scotland’s judiciary can be viewed here : A Register of Interests for Scotland’s Judiciary

A full report on the story along with details of judges jet setting around the world, and support from the Judicial Complaints Reviewer Moi Ali for the register of interests proposal, can be viewed in the Sunday Mail newspaper today HERE

JUDGES FEAR THE REGISTER – PETITION SEEKS TRANSPARENCY IN COURT WITH REGISTER OF JUDICIAL INTERESTS :

Courts Judges Scotland montagePetition PE01458: Register of Interests for members of Scotland’s judiciary calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests. Diary of Injustice has featured coverage of the petition in earlier reports, Register of Interests for Judges.

The petition also features references to debate in the Parliament of New Zealand who are considering legislation to create a register of interests for the judiciary. It is time for Scotland to move in the same direction and create a similar register of interests for the judiciary of Scotland and all its members, increasing the transparency of the judiciary and ensuring public confidence in their actions & decisions.

The full details of the New Zealand Register of Pecuniary Interests of Judges Bill, should be looked at for a model of similar legislation in Scotland, can be viewed online here  Register of Pecuniary Interests of Judges Bill.

The New Zealand Law Commission’s discussion paper on a register of judicial interests which recommends further inclusion of court staff in a register of interests, can be downloaded here : NZLC IP21 – Towards a New Courts Act: A Register of Judges pecuniary interests? (pdf)

In comparison to New Zealand’s effort to ensure transparency in the judiciary, Scotland’s judges and the Scottish Government have, unsurprisingly backed away from any similar measures, even concealing criminal charges and convictions of Scottish judges, where in one case a Scottish judge was charged with fiddling benefits claims, exposed in a Diary of Injustice investigation into Judge’s financial fiddles, here : CAREER CROOKED : Investigation reveals Scottish judges are CONVICTED CRIMINALS, Drunk Drivers,Tax Dodgers & alleged BENEFITS CHEATS

The on-going investigation by Diary of Injustice into members of Scotland’s judiciary has already revealed a series of judges appear to be involved in OFFSHORE TAX AVOIDANCE schemes, associations with convicted criminals & organised crime, prostitution rackets, accepting hospitality & payments from well known corrupt solicitors representing dodgy law firms while others on the bench are engaging in questionable investments & duties which appear to be in conflict with their positions as members of the judiciary. More on these findings can be read in an earlier article here : Offshore trusts, property holdings, insurance syndicates, hospitality from dodgy lawyers, yet no plans for a register of interests for Scottish judges

 

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SILENT RUNNING : Six weeks of ‘Victorian’ silence from Scotland’s top judge after MSPs request Lord Gill to reconsider refusal to attend Holyrood to answer questions on register of judicial interests

Larger on the Orient Express : Lord Gill stonewalls Scottish Parliament over judge’s vast secret financial interests. ALMOST SIX WEEKS since Scotland’s top judge, Lord President Lord Brian Gill was asked by MSPs from the Scottish Parliament’s Public Petitions Committee to reconsider his bitter opposition to attending Holyrood to answer questions on a proposal to create a register of judicial interests, the Lord President has apparently yet to find time between international travel commitments to give a written response to Scotland’s elected Parliament.

The second invitation from the Scottish Parliament to Scotland’s most senior judge to attend Holyrood was issued after Lord Gill earlier refused to attend the Petitions Committee to discuss issues raised in Petition PE1458, reported here : Scotland’s top judge Lord Gill refuses to attend Scottish Parliament to face questions over opposition to register of judicial interests

Petition PE1458: Register of Interests for members of Scotland’s judiciary which was debated again at the Public Petitions Committee on Tuesday 16 April 2013, calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or to amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

Diary of Injustice previously reported in mid April that the Scottish Parliament’s Petitions Committee issued a statement on Friday 19 April, reporting that Lord Gill had been asked to reconsider his decision not to appear in front of the Scottish Parliament’s Public Petitions Committee in a letter issued by Convener David Stewart MSP on behalf of the Committee. The invitation asks Lord Gill to reconsider his decision not to attend the committee to discuss petition PE1458, which calls for legislation to be put in place to require all members of the judiciary in Scotland to submit their interests and hospitality received to a publicly available register of interests.

Committee Convener David Stewart MSP said: “As a Scottish Parliament committee, our job is to fully examine the petitions before us and explore the issues involved.Only by doing this can we ensure that we exhausted every possible avenue in taking a petition forward. To do this without hearing from the Lord President in person would be difficult. That is why we are disappointed that Lord Gill has felt unable to attend a committee meeting to discuss these issues fully. We have written to Lord Gill asking him to reconsider his decision in the hope that our committee can have a full and frank discussion of the issues.”

MSPs letter to Lord Gill requesting he attend Scottish Parliament. The text of the letter sent by Convener of the Petitions Committee, David Stewart MSP to Lord Gill states : “Notwithstanding your response, the Committee still feels it would assist its consideration of this petition and aide its understanding of the issues raised were you able to make yourself available.  The Committee can see benefit in being able to explore with you orally the written evidence provided. By way of example, we note that to your knowledge no situation has arisen, within your tenure as Lord President, where a judge has failed to recuse him or herself. Would a central record be kept of any such instances and if so, are you able to provide any information on the numbers involved? I and the other members of the Committee would be most grateful if you were able to reconsider the invitation from the Committee to attend in person.”

Diary of Injustice reported on an earlier meeting of the Petitions Committee on 5th March 2013 where MSPs initially invited Lord Gill to attend Holyrood, here : SILENCE IN COURT : Scotland’s top judge Lord Gill summoned to Parliament over ‘vested interests’ attempt to block Register of Judicial Interests petition and video footage of that earlier meeting is also available online here : Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament.

All previous reports from Diary of Injustice and further information on the drive to create a register of interests for Scotland’s judiciary can be viewed here : A Register of Interests for Scotland’s Judiciary

JUDGES ABOVE THE LAW – PETITION SEEKS TRANSPARENCY IN COURT WITH REGISTER OF JUDICIAL INTERESTS BACKGROUND :

Courts Judges Scotland montagePetition PE01458: Register of Interests for members of Scotland’s judiciary calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests. Diary of Injustice has featured coverage of the petition in earlier reports, Register of Interests for Judges.

The petition also features references to debate in the Parliament of New Zealand who are considering legislation to create a register of interests for the judiciary. It is time for Scotland to move in the same direction and create a similar register of interests for the judiciary of Scotland and all its members, increasing the transparency of the judiciary and ensuring public confidence in their actions & decisions.

The full details of the New Zealand Register of Pecuniary Interests of Judges Bill, should be looked at for a model of similar legislation in Scotland, can be viewed online here  Register of Pecuniary Interests of Judges Bill.

The New Zealand Law Commission’s discussion paper on a register of judicial interests which recommends further inclusion of court staff in a register of interests, can be downloaded here : NZLC IP21 – Towards a New Courts Act: A Register of Judges pecuniary interests? (pdf)

In comparison to New Zealand’s effort to ensure transparency in the judiciary, Scotland’s judges and the Scotish Government have, unsurprisingly backed away from any similar measures, even concealing criminal charges and convictions of Scottish judges, where in one case a Scottish judge was charged with fiddling benefits claims, exposed in a Diary of Injustice investigation into Judge’s financial fiddles, here : CAREER CROOKED : Investigation reveals Scottish judges are CONVICTED CRIMINALS, Drunk Drivers,Tax Dodgers & alleged BENEFITS CHEATS

The on-going investigation by Diary of Injustice into members of Scotland’s judiciary has already revealed a series of judges appear to be involved in OFFSHORE TAX AVOIDANCE schemes, associations with convicted criminals & organised crime, prostitution rackets, accepting hospitality & payments from well known corrupt solicitors representing dodgy law firms while others on the bench are engaging in questionable investments & duties which appear to be in conflict with their positions as members of the judiciary. More on these findings can be read in an earlier article here : Offshore trusts, property holdings, insurance syndicates, hospitality from dodgy lawyers, yet no plans for a register of interests for Scottish judges

 

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What is there to hide ? : A Register of Judicial Interests will bring much needed transparency & accountability to Scots Judiciary too used to life behind closed doors

Top judge Lord Gill has so far refused to answer questions on judicial secret interests. AS reported by Diary of Injustice earlier this week, MSPs from the Scottish Parliament’s Public Petitions Committee have  once again invited Scotland’s top judge, the Lord President Lord Brian Gill to attend Holyrood to explain his ‘robust’ opposition to a proposal put forward in Petition PE1458 which calls for a Register of Judicial Interests for all members of Scotland’s judiciary.

This second invitation from the Scottish Parliament to Scotland’s most senior judge comes after the Lord President Lord Gill earlier refused to attend the Petitions Committee to discuss issues raised in Petition PE1458, reported here : Scotland’s top judge Lord Gill refuses to attend Scottish Parliament to face questions over opposition to register of judicial interests

Petition PE1458: Register of Interests for members of Scotland’s judiciary which was debated again at the Public Petitions Committee on Tuesday 16 April 2013, calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or to amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

The full Official Report of last week’s Petitions Committee meeting where Petition PE1458 was discussed, has now been published, available online HERE, and is reprinted below, along with a link to video footage of the PPC meeting for readers convenience.

All previous reports from Diary of Injustice and further information on the drive to create a register of interests for Scotland’s judiciary can be viewed here : A Register of Interests for Scotland’s Judiciary

Petition 1458 Register of Interests for Scotland’s Judiciary Scottish Parliament 16 April 2013 (click image below to watch video footage of Petitions Committee debate)

Judiciary (Register of Interests) (PE1458)

The Convener David Stewart MSP:  The eighth current petition is PE1458, by Peter Cherbi, on a register of interests for members of Scotland’s judiciary. Members have a note by the clerk and the submissions. Members will be aware that there has been a lot of press coverage of the issue and that Lord Gill, the Lord President, declined the invitation to appear before the committee. As members will know, under the Scotland Act 1998 we have no power to cite judges to appear before us.

We received a courteous letter from Lord Gill, but it is important for us to get key figures in the judiciary to help us with the petition. I suggest that we send a courteous letter back, re-inviting Lord Gill and asking him how many judges have been recused and whether there is more detailed evidence on the effectiveness of the current system.

We should also seek the views of the Judicial Appointments Board for Scotland and the judicial complaints reviewer. If members think that it is important to have people in front of us, we could ask representatives of those latter two bodies to attend.

I know that several members have fairly strong views on the issue.

Chic Brodie MSP:  We have seen the answer from the Lord President. No one has said that the Scotland Act 1998 is perfect and, in this instance, it is not. We are all equal before the law, even those who dispense it. We should send a courteous letter, but it should be robust, on the basis that the Lord President has written to us but his letter does not necessarily answer all our questions. What is there to hide?

I am sure that we all want openness and transparency in our Parliament, which is the sovereign Parliament of the Scottish people. As a member of that constituency, the Lord President, like anyone else, should at least pay obeisance to a request by the committee on behalf of the Parliament for him to attend. I sincerely hope that he reconsiders his position and attends at the earliest opportunity.

Jackson Carlaw MSP :  We cannot compel the Lord President to give evidence, but I would say that he has already set aside that provision by choosing to contribute evidence in writing. We are seeking to explore that evidence with him further, now orally, which I think is entirely reasonable.

I would put an accent on Chic Brodie’s point, because the unintended consequence of the Lord President’s not coming is to gather support for the petition in the committee in the absence of our being able to establish for ourselves the necessity for progressing with its proposals. That is unfortunate. Therefore, we should say as politely as possible that, although the Lord President with his great erudition and extraordinary intellectual capacity might not be able to anticipate what further advice he could give us that we would find of interest or helpful, that is nonetheless something that we might be able to determine.

The Convener David Stewart MSP : To recap, we will write to Lord Gill and ask him to attend. We will ask him how many judges have been recused and whether there is more detailed evidence on the effectiveness of the current system. We will also seek the views of the Judicial Appointments Board for Scotland and the judicial complaints reviewer.

Do members agree to that course of action? Members indicated agreement.

 

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SILENCE IN COURT : Scotland’s top judge Lord Gill summoned to Parliament over ‘vested interests’ attempt to block Register of Judicial Interests petition

Lord Gill to appear before msps over objections to register of judges interests. SCOTLAND’S Lord President Lord Brian Gill is set to appear before the Scottish Parliament to explain why he is so committed to blocking a register of judicial interests which would reveal judges’ wealth, business connections and other relationships including high earning jobs outside of the court and even criminal records which have so far been kept secret from the public scrutiny.

The move by the Scottish Parliament’s Petitions Committee to summon Lord Gill comes after a candid debate last Tuesday 5 March on the strength of the Lord President’s written opposition to a law journalist’s PUBLIC PETITION calling for a Register of Judicial Interests.

Petition PE01458: Register of Interests for members of Scotland’s judiciary, which calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

During last week’s meeting of Holyrood’s Public Petitions Committee, MSPs engaged in a substantive debate on the merits of the petition and gave their reaction to the Lord President’s strongly worded letter to Committee members in which he attacked plans to call for a register of interests for judges. Lord Gill also criticised the petitioner as “naive” and “misguided” over his call to make judges declare their interests in a public register. Lord Gill’s letter followed two others from the Law Society of Scotland and the Scottish Government’s Justice Department who are also attempting to shut down debate on the issue.

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament (click image below to watch video footage of Holyrood debate)

Committee member Jackson Carlaw MSP (Scottish Conservative), said “When I first saw this petition I wasn’t terribly impressed. But I’m more impressed as a consequence of the responses we received.The student anarchist in me slightly smells the whiff of vested interests closing doors and backs being slapped in an effort to shut the whole matter down.”

Mr Carlaw continued : “I would very much like us to commission an evidence session and invite the Lord President, if that’s within our competence, and other vested interests who believe we should close this down to justify their position to the committee. Since it’s quite clear no other area is examining this at present, I think that, on behalf of the petitioner, this is an issue that should be aired in public rather than just in writing.”

Committee chairman and Labour MSP David Stewart (Scottish Labour) said: “The petitioner put quite an interesting argument forward to say that there’s no real evidence here. I mean, how many judges are declaring an interest and recusing during the course of a case? Or are there any judges holding a case in which they’ve got an interest and they’re not declaring an interest? Also, lots of other public groups have to have a register of interests – why are judges any different?”

Chic Brodie MSP (SNP) also took issue with some of the terms of Lord Gill’s protestations in which the Lord President claimed judges should be shielded from the media and more public scrutiny. Mr Brodie said: “If you want to take out ‘judges’ and put in ‘politicians’, why are they different?”

Mr Brodie agreed with Jackson Carlaw’s suggestion the Lord President be called to attend Holyrood, and also went further, asking whether the Committee could look at the wider interests of judges and not just pecuniary interests as proposed in the New Zealand bill which is being used as a comparison for the introduction of a similar register for Scottish judges.

Mr Brodie’s suggestion of a wider investigation into judges interests falls in line with proposals made by the New Zealand Law Commission’s discussion paper on a register of judicial interests, which recommends inclusion of court staff in a register of interests. The New Zealand Law Commission proposals can be downloaded here : NZLC IP21 – Towards a New Courts Act: A Register of Judges pecuniary interests? (pdf)

John Wilson MSP (SNP) also agreed with the invite to Lord Gill to attend, and to also seek further information on exactly how the current system functions where judges are supposed to declare their interests if a conflict arises, and for the Lord President to explain why he wrote to the Committee in such opposing terms to the petition.

The Sunday Mail newspaper reported on developments at the Scottish Parliament, here :

Scotland's top judge summoned to appear before MSPs after trying to block register of interestsScotland’s top judge summoned to appear before MSPs after trying to block register of interests

M’Lud, you’ve a pleading cheek : MSPs demand top judge explains why he tried to block register of interests

EXCLUSIVE : By Russell Findlay, Sunday Mail 10 Mar 2013

A HOLYROOD committee want the law chief to explain why he tried to halt a register which would reveal judges’ business, professional and financial links.

SCOTLAND’S top judge is to appear before MSPs after he tried to block a judicial register of interests. Lord Gill – the £214,000-a-year Lord President – dismissed the need for judges to reveal business, professional and financial links.

The identity of a judge convicted of benefit fraud would also be likely to be revealed if such a register existed.

Holyrood’s petitions committee want Gill, 71, to explain his opposition to the transparency motion by legal reform campaigner Peter Cherbi.

Committee member Jackson Carlaw, Scottish Conservative deputy leader, said: “When I first saw this petition I wasn’t terribly impressed. But I’m more impressed as a consequence of the responses we received.

“The student anarchist in me slightly smells the whiff of vested interests closing doors and backs being slapped in an effort to shut the whole matter down.

“I would very much like us to commission an evidence session and invite the Lord President, if that’s within our competence, and other vested interests who believe we should close this down to justify their position to the committee.

“Since it’s quite clear no other area is examining this at present, I think that, on behalf of the petitioner, this is an issue that should be aired in public rather than just in writing.”

Committee chairman and Labour MSP David Stewart plans to ask Gill how many judges have “recused” themselves – stepped down – from cases in which they have an interest.

Stewart said: “The petitioner put quite an interesting argument forward to say that there’s no real evidence here.

“I mean, how many judges are declaring an interest and recusing during the course of a case? Or are there any judges holding a case in which they’ve got an interest and they’re not declaring an interest?

“Also, lots of other public groups have to have a register of interests – why are judges any different?”

Members of the judiciary, including judges, sheriffs and JPs, adhere to various rules including an oath of office. In his written opposition, Gill said he and his colleagues could be abused by “aggressive media or hostile individuals”.

But the SNP’s Chic Brodie said: “If you want to take out ‘judges’ and put in ‘politicians’, why are they different?”

Last year, we revealed that a judge had been convicted of benefit fraud but his or her identity was kept secret. Cherbi believes that a register would have forced the crooked judge to declare his or her conviction. He was inspired by similar moves in New Zealand which were sparked by a judge failing to declare that he owed money to a lawyer involved in a case.

A register could be created by the Scottish Parliament or by the Judicial Office for Scotland, which incorporates the Lord President’s office. Typically, such registers reveal details of hospitality, gifts, property ownership, shareholdings and personal or financial connections to outside organisations.

Cherbi, from Edinburgh, who campaigns against Scotland’s legal self-regulation and secretive justice, said: “Lord Gill’s style might have worked in 1813 but clearly does not work in 2013.” In a written submission to the committee, Cherbi said: “It is plainly wrong to suggest that, just because someone is a judge, they are above transparency and accountability.”

The Judicial Office for ­Scotland said: “The Lord President has not received any approach from the committee following its consideration of the relevant ­petition, and while the members’ comments are noted it would not be appropriate to comment at this stage.”

Last month, the country’s first Judicial Complaints Reviewer, Moi Ali, accused Gill of blocking access to vital documents. Three years ago, he delivered a damning report on Scotland’s “Victorian” civil courts. That led to last month’s Courts Reform (Scotland) Bill, which it is hoped will make access to justice cheaper and faster.

Lord Gill factfile

BRIAN GILL was raised in Riddrie, Glasgow, and was educated at the fee-paying Jesuit Catholic school St Aloysius’ College. After studying at Glasgow and Edinburgh universities, he became a law lecturer. As a farming law expert, he became a QC in 1981 and a judge 13 years later. He quickly caused controversy by branding Scotland’s civil justice a “relic of a vanished age”. Those views were echoed in his 2009 report which has sparked an overhaul of the civil courts.

The dad of six has featured in many high-profile cases. He let the widow of a lung cancer victim pursue a damages claim against a cigarette firm without putting up a penny in security. He ruled that two gay men could not adopt a handicapped boy. He also rejected a compensation claim over a failed vasectomy. Gill presided over the appeal court’s quashing of the convictions of Tommy Campbell and Joe Steele for the Ice Cream Wars murders.

In 2011, then Cardinal Keith O’Brien presented him with the Papal Knighthood for outstanding service to public life”. Gill has a love of church music and his other interests include children’s and youth charities and architecture.

 

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A MATTER OF TRUST : Scotland’s top judge Lord Gill attacks Scottish Parliament petition calling for a Register of Interests for Scots Judiciary

Lord GillLord President Lord Gill branded Scots justice Victorian & unfit for purpose, yet transparency of judges interests seems a step too far. THE SPECTACLE of a country’s most senior judge arguing against public expectations of transparency & accountability in the justice system and indeed public life, makes for an uncomfortable feeling that judges have something to hide. And so, in response to calls for greater transparency of the country’s judiciary, Scotland’s Lord President Lord Brian Gill, the author of the much acclaimed Civil Courts Review which has yet to bear fruit four years on for Scots locked in bitter court disputes, has issued a stern rebuke of a PUBLIC PETITION filed by a law journalist & campaigner calling for a Register of Judicial Interests.

In a sharp letter to MSP members of the Scottish Parliament’s Public Petitions Committee, the Lord President, Lord Gill condemned calls for greater transparency & public accountability of Scotland’s judiciary, and went on to attack proposals calling for judges to declare their interests, financial or pecuniary wealth, and other connections in a publicly available register as “misguided” and “naive”.

Even more worryingly, the Lord President goes so far in his letter to claim transparency across the courts system is not desirable in the form of a registrar of interests, as judges’ privacy should be protected to prevent the media or individuals gaining knowledge of judges invariably significant wealth, criminal records, undeclared business connections, work, & wealth earning or otherwise relationships outside and even inside the courtroom.

In a terse, bitter tirade against media investigations into the judiciary which revealed several of Scotland’s judges have criminal records, and one judge convicted of benefits cheating Lord Gill went on to brand those enquiring of judges secrets as “aggressive media” and “hostile individuals”. He also claimed that if a register of interests for judges existed, it may be more difficult to recruit judges in the future.

Given judges must be above reproach, and must uphold the values of transparency & accountability they hold those appearing before them in court, and that decisions taken by the judiciary can have a huge impact on public life, even contesting legislation passed by our elected politicians, can judges who refuse to be held to the same standards as everyone else in public life, be trusted ?

Lord Gill’s letter to the Scottish Parliament in full, is available online here PE1458_B Lord President 05.02.13 or at the Scottish Parliament website HERE (pdf) :

RESPONSE FROM LORD PRESIDENT LORD GILL : PUBLIC PETITION PE1458: REGISTER OF JUDICIAL INTERESTS

Thank you for your letter dated 9 January 2013 in respect of the above. I am firmly of the view that a Register of Judicial Interests is unnecessary and I do not support the terms of the petition.

Is there a practical need for a register of judges’ pecuniary interests?

The catalyst for this petition appears to be New Zealand legislation prepared following a case where a judge failed to recuse himself. To my knowledge, no such situation has arisen within my tenure as Lord President. The Council of Europe Group of States against Corruption (GRECO) considered the need for a Judicial Register of interests as part of their First Evaluation Round Report on the United Kingdom dated 14 September 2001′ and concluded as follows

“As regards the institutions that are entrusted with the fight against corruption the GET noted that judges in the United Kingdom are not required to register their interests. Given, however, that the United Kingdom judiciary is generally perceived as conforming to social demands for observance of high integrity standards, the GET did not consider it necessary to address a recommendation in this connection.” (paragraph 87)

Although yet to be published, I understand that having reconsidered this issue in their Fourth Evaluation Round Report last year, they remain of the view that a register or asset declaration system for members of the Judiciary is unnecessary.

Another reason why there is no practical need for this measure is that there are currently sufficient safeguards to ensure that judicial impartiality is maintained. The current safeguards in place in Scotland are established by the terms of the Judicial Oath, the Statement of Principles of Judicial Ethics for the Scottish Judiciary and the Judiciary and Courts (Scotland) Act 2008. I refer to the SPICe Briefing which details these provisions but would wish to draw the Committee’s attention to the following points

* The Judicial Oath, is taken by all judicial office holders, and requires judges to do right to all manner of people without fear or favour, affection or ill-will..

* The Statement of Principles of Judicial Ethics, issued in April 2010, states at principle 5 that all judicial office holders have a general duty to act impartially and,in particular, notes that “Plainly it is not acceptable for a judge to adjudicate upon any matter in which he, or she, or any members of his or her family has a pecuniary interest…”.

* The Judiciary and Courts (Scotland) Act 2008 contains provisions in section 28 and section 35 to regulate and investigate the conduct of judicial office holders. The Complaints about the Judiciary (Scotland) Rules 2011 came into force in 2011. To date there have been no substantiated complaints alleging judicial bias. In addition,the Conduct Committee of the Judicial Council intends to consult in the Spring of this year on rules under section 35 in respect of fitness for judicial office in tribunals.

In my view there is no need for the further measure of a “Register of Judicial Pecuniary Interests” as advocated in this petition.

Misconceptions within the petition

The petition appears to proceed on an apparent misconception that equal treatment in terms of disclosure obligations of each of the three branches of Government is desirable. The three branches have significantly different roles to perform. The judicial role requires independence and impartiality in relation to the individual case which the judge has to decide. In this context, the potential for conflict of interest or apparent bias extends beyond pecuniary interests alone. The judge’s duty of disclosure is more far-reaching than a bare listing of particular pecuniary interests identified by legislation as warranting disclosure. For example, a judge’s disclosure duties, as set out in the Statement of Principles of Judicial Ethics, will extend to material relationships

The petitioner is also incorrect in his assumption that “being obliged to declare pecuniary interests … would relieve a judge from a repetitive weight of responsibility to make discretionary judgments about his or her personal affairs as each case arises.” This is a naive interpretation that does not appreciate the role of a judge. Judicial conflicts of interest based on a judge’s pecuniary interests arise infrequently but, when they do, the existence of an entry on a judicial register of pecuniary interests would not relieve the judge concerned from his or her obligations to make full disclosure and to reach a principled decision as to whether recusal is warranted. For that reason, I do not consider that the vehicle that the petitioner proposes would achieve its stated purpose of “providing greater transparency within the judicial system and to avoid any conflict of interest in the judicial role.”

Practical considerations

In practical terms it would be impossible for all judicial office holders to identify all the interests that could conceivably arise in any future case. The terms of the Judicial Oath and the Statement of Principles of Judicial Ethics ensure that such a difficulty does not arise and that the onus is on the judicial office holder to declare any interest at the outset.

This is a view shared and supported by the Justices of the Supreme Court who have publicly stated that “it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believe to be compete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound and which is now publically available on the UKSC website.”

Unintended consequences

The introduction of such a register could also have unintended consequences. Consideration requires to be given to judges’ privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. It is possible that the information held on such a register could be abused. These are significant concerns. If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician. The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the Judiciary. It also raises the question whether such a measure would have an adverse impact on the recruitment and retention of the Judiciary.

AS OTHERS SEE IT – A PETITION FOR A REGISTER OF JUDICIAL INTERESTS BACKGROUND :

Courts Judges Scotland montagePetition PE01458: Register of Interests for members of Scotland’s judiciary calls for the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests. Diary of Injustice has featured coverage of the petition in earlier reports, Register of Interests for Judges.

The petition also features references to debate in the Parliament of New Zealand who are considering legislation to create a register of interests for the judiciary. It is time for Scotland to move in the same direction and create a similar register of interests for the judiciary of Scotland and all its members, increasing the transparency of the judiciary and ensuring public confidence in their actions & decisions.

The full details of the New Zealand Register of Pecuniary Interests of Judges Bill, should be looked at for a model of similar legislation in Scotland, can be viewed online here  Register of Pecuniary Interests of Judges Bill.

The New Zealand Law Commission’s discussion paper on a register of judicial interests which recommends further inclusion of court staff in a register of interests, can be downloaded here : NZLC IP21 – Towards a New Courts Act: A Register of Judges pecuniary interests? (pdf)

In comparison to New Zealand’s effort to ensure transparency in the judiciary, Scotland’s judges and the Scotish Government have, unsurprisingly backed away from any similar measures, even concealing criminal charges and convictions of Scottish judges, where in one case a Scottish judge was charged with fiddling benefits claims, exposed in a Diary of Injustice investigation into Judge’s financial fiddles, here : CAREER CROOKED : Investigation reveals Scottish judges are CONVICTED CRIMINALS, Drunk Drivers,Tax Dodgers & alleged BENEFITS CHEATS

The on-going investigation by Diary of Injustice into members of Scotland’s judiciary has already revealed a series of judges appear to be involved in OFFSHORE TAX AVOIDANCE schemes, associations with convicted criminals & organised crime, prostitution rackets, accepting hospitality & payments from well known corrupt solicitors representing dodgy law firms while others on the bench are engaging in questionable investments & duties which appear to be in conflict with their positions as members of the judiciary. More on these findings can be read in an earlier article here : Offshore trusts, property holdings, insurance syndicates, hospitality from dodgy lawyers, yet no plans for a register of interests for Scottish judges

 

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Hacking your life ? The Law Society of Scotland & its insurers are experts. Memos & more proved information sharing, surveillance, hacking of Scots public goes right to the top

Douglas Mill 4Strong questions and a lack of custard pies in 2006 ensured Law Society Chief Executive fell on his information gathering memos. IN a favourable comparison to yesterday’s Westminster Culture Committee session in which hardly anything new was gained from the questioning of Rupert & James Murdoch & Rebekah Brooks on a what did they know and when did they know it theme regarding the News of the World “phone hacking” scandal, readers may wish to take note us Scots visited this same topic in 2006, where, albeit accidentally, the ‘dark art’ of information sharing & hacking into the lives of the public was revealed during questioning the Law Society of Scotland’s then Chief Executive, Douglas Mill by the now Scottish Cabinet Secretary for Finance, John Swinney.

Hacking for some seems to, suspiciously, focus only on hacking phones, yet as we all know, hacking into your own life can mean a lot more. Legislation such as  the Regulation of Investigatory Powers Act, with our own Scottish version (RIPSA) has effectively promoted an uncontrolled culture of hacking throughout the UK so should we be surprised certain sections of the media felt left out and did their own hacking ? No.

Things like, hacking your medical records, hacking your financial details, hacking your mail, hacking your email, hacking into your home, hacking into your legal aid, hacking into your relationship with your own lawyer, hacking into your family life, and all done pretty much without so much as a whimper from anyone willing to stop it. We have seen it all before, yet nothing has ever been done until now. Did the same happen in Scotland ? Yes, although in the case of Scotland, you can be assured there will never be a Westminster style inquiry into it, ever.

As documents came to light at the Scottish Parliament in 2006 which touched on the subject of the legal profession hacking into the lives of clients, no one thought to ask the appearing Law Society officials exactly what methods they had used when intervening in the lives of members of the public to block their access to justice.

By today’s standards, not pursuing such a line of questioning when faced with documentary proof those before you had personally intervened in the lives of members of the public, gathered information which could not have been obtained in many cases, legally, had applied that information to blocking legal representation or interfering in court cases, or had knowledge that the Police had been used to thwart investigations, would in itself be suspicious. This is exactly what happened, and nothing more was said, nothing more was done.

Targeting clients : John Swinney asked stern questions of Law Society Chief Mill in 2006 which exposed lawyers using information to undermine members of the public. (Click image to view video)

John SwinneyCabinet Finance Chief John Swinney (then in opposition in 2006) knew how to ask some questions, yet he should be asking more. You can read more about the content of Mr Mill’s memos to the Law Society of Scotland President & the disgraced insurance firm Marsh, who were convicted of criminal offences in the United States, here : Law Society boss Mill lied to Swinney, Parliament as secret memos reveal policy of intervention & obstruction on claims, complaints. The memos between the Law Society & employees of an insurance firm portrayed an information sharing agenda on members of the public which existed in order to undermine any court actions or access to justice for those victimised by the legal profession. Clearly a degree of spying against members of the public was being practised by the Law Society and its insurers, and clearly the legal profession had undermined an earlier Scottish Parliamentary inquiry, yet no searching questions were asked.

In one of the memos, sent from Alistair Sim, the Director of Marsh UK to Mr Mill, Sim suggested collecting information on clients while in another memo, Mill refers to a proposed Scottish Parliament Justice Committee 1 inquiry into regulation of the legal profession in Scotland, which was held in 2002-2003 under the Convenership of the Christine Grahame MSP, who is again, coincidentally of course, the Convener of the Scottish Parliament’s Justice Committee.

It was clear from the content of the memos Law Society officials & Marsh employees were involved in an attempt to undermine the 2003-2003 Justice Committee hearings and prevent anyone attending who might have exposed the hacking culture at the Law Society of Scotland and its insurers which was going on in the name of protecting the legal profession’s Master Policy, a massive multi million pound client compensation scheme. which oddly enough, hardly ever pays out.

During the 2002-2003 inquiry, not one single member of the public was allowed to testify before the Scottish Parliament’s Justice Committee after the Law Society of Scotland demanded members of the public be banned from speaking at Committee hearings. The 2002-2003 inquiry under Christine Grahame did not discuss the memos made available to John Swinney, and Ms Grahame’s team subsequently went onto conclude regulation of the legal profession should remain as it was, under the control of the Law Society of Scotland.

It took a second inquiry into regulation of solicitors, held in 2006 by the Scottish Parliament’s Justice 2 Committee, initially chaired by Annabel Goldie (who resigned due to a conflict of interest) subsequently replaced by David Davidson, which brought the Law Society’s meddling in cases & client’s lives to the fore.

During the 2006 enquiry,  members of the public were allowed to testify before the Justice 2 Committee and subsequent to Mr Swinney’s encounter with Douglas Mill over the secret memos, Mill was forced to resign, albeit only after video footage of the incident was posted to video sharing website You Tube. Yet amid all this, no searching questions were asked by MSPs as to exactly what methods the Law Society of Scotland and its insurers employed to intervene in the lives of members of the public.

As readers will now be well aware, the creation of the Scottish Legal Complaints Commission has done nothing to clean up the corruption in the world of regulation of the legal profession, in fact, probably worsening it. My previous coverage of the Scottish Legal Complaints Commission, itself branded a “Front Company for the Law Society of Scotland”, can be found here : Scottish Legal Complaints Commission : The story so far

Readers can find out more for themselves in my previous coverage of just how the Law Society of Scotland and agents acting for its Master Policy insurers hack into the lives of clients, here : Spies, Lies, Hacking & Facebook : Law Society Master Policy snooped on ‘difficult clients’ to undermine damages claims, complaints about lawyers & here : Suicides, ill health, financial ruin : Will SLCC’s latest Master Policy report deliver solution to Law Society ‘pro-crooked lawyer’ insurance scheme ?

421Who headed the hacking ? Law Society’s now former Chief Executive Douglas Mill & Philip Yelland, head of Client Relations. Regular readers will be well aware I was significantly targeted by both Douglas Mill who personally blocked my legal aid, and the Law Society of Scotland’s Director of Regulation, Philip Yelland, who personally intervened with my solicitor at the time and ordered him not to take my instructions. Correspondence which revealed the actions of Mill & Yelland against me, can be viewed HERE & HERE. I can assure you all, these people and agents working for their “Master Policy” made my family life and my access to justice, a living hell. Almost, a death sentence, all in the name of protecting crooked Borders solicitor Andrew Penman of Stormonth Darling Solicitors, Kelso. The Andrew Penman scandal was heavily reported in the Scotsman newspaper during the 1990s.

Indeed, I have not forgotten that during the time of the Scotsman’s coverage, disruptive relationships between the legal & accounting profession who were intent on preventing further media reporting on Mr Penman, and, officers of Lothian & Borders Police came to the fore in several incidents, one of which involved the compromising of a costly & lengthy CID surveillance operation. Details of this scandal may well soon be appearing in a newspaper near you.

In my experience investigating & reporting on the legal profession for five years, and campaigning for legal reforms since the 1990s, information sharing, hacking, operating a policy to undermine critics by any means necessary, including the use of surveillance, and relationships involving the Police, goes right to the very top of any organisation which is very much involved in undermining the public good for its own ends.

 

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